V.K. Shukla, J.
1. In the above-mentioned Special Appeals in question, as common question of law has been engaging the attention of this Court, the Special Appeals in question are being decided collectively and Special Appeal (D) No. 92 of 2017 is being treated to be leading case. Ref: Civil Misc. Delay Condonation Application
2. For the reasons stated in affidavit filed in support of Delay Condonation Application, cause disclosed is sufficient in itself, Application is allowed. Special Appeal is treated to have been filed well within time.
Ref: Special Appeal
3. Sankalp Institute of Education is a minority institution affiliated with Chaudhary Charan Singh University, Meerut. The said Institution is engaged in imparting teacher's training course known as Bachelor of Education Course (B.Ed.). The said course in question is recognised and approved by National Council for Teacher Education (N.C.T.E.) wherein the Institution can admit hundred students for B.Ed. course, which is a self financing course.
The dispute that has impelled Sankalp Institute of Education to be before this Court is that as per the policy of the State Government, Bundelkhand University, Jhansi was appointed to conduct Common Entrance Test (C.E.T.) for B.Ed. Programme for 2014-2015 and in the said centralised counselling in all 21 students were recommended for being offered appointment to the petitioner's institution.
4. Petitioner's institution has come forward with the case that minority institutions running B.Ed. Course and affiliated to Chaudhary Charan Singh University, Meerut have proceeded to constitute and establish a Society and the said Society undertook process of making selection of students for the respective minority institutions on the basis of combined entrance test conducted by them and based on the tests so conducted, 79 students have been admitted out of which 50 students were under minority quota and the shortfall of 29 students has been completed by admitting them under the merit quota.
5. Chaudhary Charan Singh University, Meerut, in its turn, has not at all proceeded to entertain the candidature of aforementioned 29 students, admitted by the minority institution on the premises that petitioner's institution was not at all entitled to admit 29 students under the merit quota of minority institution as the quota in itself was confined to 50% and in view of this, the candidature of said students cannot be entertained, faced with such situation, the Institution in question is before this Court.
Stand has been taken that minority institution can admit only 50% students of their own but in the present case, the other 50% quota that was required to be admitted under combined entrance test, even therein encroachment has been made whereas it was not at all permissible and in view of this, the University is absolutely right at the point of time when University has proceeded to take a resolve not to entertain candidature of said 29 students.
6. The Learned Single Judge, on the basis of pleadings that have been so exchanged and on the basis of arguments that have been so advanced qua the admission so taken, proceeded to examine the claim and the counter claim and ultimately concluded as follows:-
"Q.1 Whether unaided/self financed minority institution have right to admit students of their choice by adopting a mechanism of their own, thus, selecting students outside the policy of the State provided through a single window system.
Q.2 Whether single window system i.e. CET followed by centralised counselling in admitting students for B.Ed. course infringes upon the right of the minority institutions as contemplated under the Article 19(1)(g) and 30 of the Constitution of India.
Q.3 Whether minority institutions imparting B.Ed. course are entitled to claim parity with the Government Order dated 10 June 2015 issued in respect of B.T.C. Course.
Q.4. Whether minority institutions imparting B.Ed. course are entitled to exemption under Section 2 of The Uttar Pradesh Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006;
Q.5. Whether counselling university is bound to provide cent percent students to the institutions.
Finally, whether the students who were illegally admitted by the institution against the policy of the State and who have been declined permission by the University to appear in the B.Ed. examination are entitled to compensation. In S. Nihaal Ahmed v. The Dean Velammal Medical College Hospital and Research Institute and others 21 wherein, Supreme Court relied on Chandigarh Administration and another v. Jasmine Kaur and others 22, held that if a candidate is not selected during a particular academic year due to the fault of the institution and in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, the students are entitled to damages/compensation."
7. The Learned Single Judge also, in his wisdom, proceeded to award compensation to the said students, who have been illegally accorded admission by the Institution concerned.
Against such opinion formed, the Institution is in Appeal.
Shri Ashok Khare, Senior Advocate assisted by Shri Pratik Chandra, Advocate and Shri Seemant Singh, Advocate submitted with vehemence that there was no illegality or infirmity in the admission in question that have been so accorded to 29 students as the said 29 students had also faced selection process and based on the said selection process 50 students had been admitted and had been recognised by the University concerned, in view of this, the University concerned, ought to have been recognised remaining 29 students, who were also from the same list, instead of taking such unreasonable stand in the matter and specially when only 21 students had been send for according admission through Combined Entrance Test (C.E.T.). It has also been sought to be contended that once the institution in question is a minority Institution and excluded from the provisions of Private Institutions Act 2006, then being a self financed private institution, the management has a free hand to have intake of cent percent students by adhering to a transparent and fair procedure of making admissions and in view of this, requisite exercise be undertaken in Special Appeal for accommodating the students.
8. Shri G.K. Singh, Senior Advocate appearing with Shri Vivek Varma, Advocate, on the other hand, contended that on its face value without any authority of law, the management proceeded to exceed its quota and once the quota in question has been exceeded, then the University is absolutely right in refusing to entertain such students, and further under the centralised system, it was not at all obligatory to send list of candidates for pursuing education in petitioner's institution once the students, who have proceeded to undertake the counselling, have chosen not to chose petitioner's institution for pursuing their B.Ed. course, in view of this no interference be made.
9. Before we proceed to take a final call on the matter, the relevant statutory provisions holding the field are being looked into:-
"The U.P. State Universities Act (in short the Universities Act), was promulgated by State Legislative Assembly to regulate higher education in U.P. The aim and object of in reducing such Act was to provide equal opportunity in the field of higher studies to the people of the State.
Under Section 2 and 3 of the Universities Act, certain words like affiliated college, area of the University, associated college, autonomous college, Central Board of Studies, constituent college, existing University, Institute, management, registered graduate, University etc. have been defined. The word, 'management' has been defined as under:
(13) 'management' in relation to an affiliated or associated college, means the managing committee or other body charged with managing the affairs of that college and recognised as such by the University;
[Provided that in relation to any such college maintained by a Municipal Board or a Nagar Mahapalika, the expression 'management' means the education committee of such Board or Mahapalika as the case may be and the expression 'Head of the Management' means the chairman of such committee.]
Section 4 of the Universities Act empowers the State to establish a new University for a particular area.
Section 5 of the Universities Act empowers the University to exercise power in respect of area being specified in the schedule provided in the Universities Act.
Section 6 of the Universities Act provides that the University shall be open to all persons irrespective of classes or creeds.
Section 7 of the Universities Act defines powers and duties of the University and Section 7-A of the said Act deals with additional power and duties of certain universities.
Under Section 10 of the Universities Act, the Governor is the Chancellor of the University.
Admissions in Universities are regulated under Section 28 of the Act and Sub-section (5) (b) thereof, deals exclusively with the admission in Engineering Colleges, Medical Colleges and to courses of instruction for admission.
Chapter VII of the Universities Act deals with affiliation and recognition of the colleges. Section 37 of the Universities Act, empowers the University of Agra, Gorakhpur, Kanpur, Meerut and other universities except the Universities of Lucknow and Allahabad, to recognise and affiliate colleges for higher education subject to fulfilment of necessary condition.
Section 38 deals with recognition of associated colleges by the Universities of Lucknow and Allahabad and such other Universities except the Universities of Agra, Gorakhpur, Kanpur or Meerut or the Sampurnanand Sanskrit Vishwavidyalaya.
Chapter VIII of the Universities Act deals with the admission and examinations. Section 45 of the said Act provides the conditions in compliance of which the students may be eligible for admission to the course of study for a degree. For convenience Section 45 is reproduced as under:
Admission of Students.--(1) No student shall be eligible for admission to the course of study for a degree unless:
(a) he has passed-:
(i) the Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh, or of any University or Board incorporated by any law for the time being in force; or
(ii) any examination, or any degree conferred by any other University, being an examination or degree recognised by the University as equivalent to the Intermediate Examination or to a degree of the University; and
(b) he possesses such further qualifications, if any, as may be specified in the Ordinances: Provided that the University may prescribe by Ordinances any lower qualifications for admission to a degree in Fine Arts.
(2) The conditions under which students may be admitted to the diploma courses of the University shall be prescribed by the Ordinances.
(3) The University shall have the power to recognise (for the purposes of admission to a course of study for a degree), as equivalent to its own degree, any degree conferred by any other University or, as equivalent to the Intermediate Examination of any Indian University, any examination conducted by any other authority.
(4) Any student whose work or conduct is unsatisfactory may be removed from the University or an Institute or a constituent college or an affiliated or associated college in accordance with the provisions of the Ordinances. The National Council for Teacher Education Act. 1993 (Act No. 73 of 1993) was promulgated by the Parliament and was notified finally on 29.12.1993.
The aims and objects of the Act are reproduced as under:
An Act to provide for the establishment of a National Council for Teacher education with a view to achieving planned and coordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matter connected therewith.
Section 2 of the said Act contains definition clause relating to various words, used in the Act. Sub-section (c) of Section 2 of the Act defines the meaning of 'recognised institution. Section 2 (h) of the Act, defines the word, 'prescribed', Section 2 (i) of the Act defines the word, 'recognised', Section 2 (j) defines the word, 'regional committee' and Section 2 (k) of the Act defines the word, 'regulations'. Section 2 (1) of the Act defines the word, 'teacher 'education', Section 2 (m) of the Act defines the word, 'teacher education qualification', Section 2 (n) of the Act defines the word, 'University'. For convenience, relevant sub-sections of Section 2 of the Act is reproduced as under:
(h) "prescribed" means prescribed by rules made under Section 31;
(i) "recognised institution" means an institution recognised by the Council under Section 14;
(j) "Regional Committee" means a committee established under Section 20;
(k) "regulations" means regulations made under Section 32;
(l) "teacher education" means programmes of education, research training of persons for equipping them to teach at preprimary, primary, secondary and senior secondary stages in schools, and includes non-formal education, part-time education, adult education and correspondence education;
(m) "teacher education qualification" means a degree, diploma or certificate in teacher education awarded by a University or examining body in accordance with the provisions of this Act;
(n) "University" means a University defined under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and includes an institution deemed to be a University under Section 3 of that Act;
Section 12 of the Act deals with the functions of the Council. Under Section 3 of the NCTE Act, the Central Government by notifying in the Official Gazette, established a Council called as the National Council for Teacher Education, in short NCTE. Section 12 lays down various functions of the Council.
Section 13 relates to inspection of the institution which are recognised or proposed to be recognised by the Council to impart education like B. Ed. courses etc. Section 14 mentions mandatory condition for recognition of institutions offering course or training in teacher education. Under Section 15 of the NCTE Act, the regional committee has been empowered to grant recognition to start new courses. The embargo has been placed for the examining bodies like universities provided no affiliation shall be granted unless recognition has been granted by the regional committee of the NCTE. Section 17 of the NCTE Act, lays down that in case institution is recognised by the regional committee or the NCTE the university concerned to which an institution has been affiliated shall derecognise such institution. Section 32 of the NCTE Act, empowers the council to frame regulation by publication in official gazette not inconsistent with the provisions of the Act and Rules made thereunder. Relevant portion of Sub-section (2) of Section 32 of the NCTE Act, may be reproduced as under:
32 (2).(f) conditions required for the proper functioning of the institution and conditions for granting recognition under Clause (1) of Sub-section (3) of Section 14; (h) conditions required for the proper conduct of a new course or training and conditions for granting permission under Clause (a) of Sub-section (3) of Section 15;
In pursuance of power conferred under Section 32 of the Act, the council had framed regulations in the year 2002 which was amended in 2005 providing norms and standards for secondary teachers education programme (i.e., B. Ed. Course). Regulations, 2002 provides that duration of B. Ed. programme shall be at least one academic year and the one unit shall admit 100 students to impart B. Ed. education. The Regulation provides that candidates with at least 45 marks in Bachelor's/Master's Degree with at least two school subjects at the graduation level shall be eligible for admission to B. Ed. course. According to Regulation 2002, the admission is to be made either on the basis of marks obtained by qualifying examination or by the entrance examination conducted by the University/State Government to which the institution is affiliated. The relevant portion of Regulation 2002 is reproduced as under:
Appendix-7 Norms and Standards for Secondary Teacher Education Programme (B. Ed.)
2. Duration and Intake
a) The B. Ed. programme shall be of a duration of at least one academic year.
b) There shall be a unit of 100 students for ensuring optimum utilisation of physical and instructional infrastructure and expertise of the teaching staff. Division into appropriate batches may be done at the institutional level for effective curriculum transaction.
a) Candidates with at least 45% marks in the Bachelor's/Master's Degree with at least two school subjects at the graduation level are eligible for admission.
b) Admission should be made either on the basis of marks obtained in the qualifying examination or in the entrance examination conducted by the University/State Government, as per the policy of the State Government/University, to which the institution is affiliated.
c) There shall be reservation of seats for SC/ST/OBC, Handicapped, Women, etc. as per the rules of the concerned State Government.
10. The NCTE, under the title of Norms and Standards for Secondary Teacher Education Programme leading to Bachelor of Education (B. Ed.) Degree, provided that candidate possessing 50% marks either in the Bachelor's Degree and/or in the Master's degree or any other qualification equivalent thereto, shall be eligible for admission to the programme. The admission procedure has been maintained either on the basis of qualifying examination or the entrance test or any other selection process as per the policy of the State Government/U.T. Administration and the University. The relevant portion of the said Regulation is reproduced as under:
Norms and Standards for Secondary Teacher Education Programme leading to Bachelor of Education (B. Ed) Degree 3.0 Intake, Eligibility and Admission Procedure 3.1 Intake There shall be a unit of 100 students divided into two sections of 50 each for general sessions and not more than 25 students per teacher for a school subject for methods courses and other practical activities of the programme to facilitate participatory teaching and learning.
3.2 Eligibility 3.2.1. Candidates with at least 50% marks either in the Bachelor's Degree and/or in the Master's degree or any other qualification equivalent thereto, are eligible for admission to the programme.
3.2.2 There shall be relaxation of marks/reservation of seats for candidates belonging to SC/ST/OBC communities and other categories as per the Rules of the Central/State Government/U.T Administration concerned.
3.3 Admission Procedure Admission shall be made on merit on the basis of marks obtained in the qualifying examination and/or in the entrance examination or any other selection process as per the policy of the State Government/U.T. Administration and the University.
11. Regulation 3.2 provides for minimum marks which is 50%, earlier, it was 45%. However, it has been subjected to Regulation 3.3 which deals with the actual admission procedure. The admission has to be made based on qualifying examination/entrance examination. Such qualifying examination or the entrance examination has to be held as per the policy of the State Government. Thus, the examination can be held either by the State Government and in case the State Government decides, it can delegate such power to the Universities. The NCTE in its wisdom, has provided that admission procedure shall be in accordance with the policy decision taken by the State Government. Thus, instead of proceedings on its own, the NCTE has delegated its power to the State Government.
12. The State Government under the power conferred by Subsection (5) of Section 28 of the Universities Act, framed the Regulation in the year 1987 under the title of Uttar Pradesh State Universities (Regulation of Admission to Courses of Instruction for Degree in Education In Affiliated, Associated and Constituent Colleges) Order, 1987, to regulate admissions in B. Ed. and M. Ed. courses. The universities were empowered to accept application or organise their own entrance test in pursuance of power conferred by para-6 and 7 of the Regulation 1987 which is reproduced as under:
6. Application for Admission.--(1) Every candidate for admission to B. Ed. classes shall apply in the manner hereinafter provided in the prescribed form to be obtained from the office of the Registrar of the concerned University on payment of Rs. 10 for each form. The last date for applying for admission shall ordinarily be the 31st day of May or such date in the month of June as the University may prescribe.
(2) The candidate shall send the application form by Registered post to the Registrar of the University;
(3) No application received in the office of the Registrar after such date as may be prescribed by the University in this behalf shall be entertained.
7. Examination for admission.--(a) Every University shall organise its own combined admission examination for admission to B. Ed. courses in its affiliated, associated and constituent colleges. The admission examination of all the Universities shall be organised on one and the same date as may be fixed by the State Government.
13. It would be relevant to mention that it was the case of T.M.A. Pai Foundation v. State of Karnataka 2002 (8) SCC wherein the question of application of Article 30 to Minority professional colleges arose. In TMA Pai 11 questions were framed to be answered. The Apex Court dealt with the questions by classifying the discussion under five heads. Having dealt with each of the heads; the Court through the majority opinion expressed by B.N. Kripal,CJ. recorded answers to the 11 questions as they were framed and posed for resolution:
Q.1. What is the meaning and content of the expression "minorities" in Article 30 of the Constitution of India?
A. Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since reorganization of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put on a par in Article 30, have to be considered State-wise.
Q.4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated?
A. Admission of students to unaided minority educational institutions viz. schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.
The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.
Q.5(a) Whether the minorities' rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?
A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.
Q. 11. What is the meaning of the expressions "education" and "educational institutions" in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?
A. The expression "education" in the articles of the Constitution means and includes education at all levels from the primary school level up to the postgraduate level. It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood herein above.
14. For the first time TMA Pai, held that running an educational institution is an 'occupation' and Article 19(1) (g) guarantees it as a fundamental right. All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right is subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in the judgment.
15. Court while discussing the inter relationship between Rules 19(1)(g), 29(2) and 30(1) of the Constitution held that the right to establish an educational institution, for charity or for profit being an occupation, is protected by Article 19(1)(g). Notwithstanding the right of minority to establish and administer an educational institution would be protected by Article 19(1)(g) yet the Constitution while enacting Article 30 intended to instil confidence in minorities against the executive or legislative encroachment of their right to establish and administer educational institutions of their choice, however, "merely, because Article 30(1) has been enacted, minorities educational institutions do not become immune from the operation of regulatory measures because the right to administer does not include the right to maladministration".
16. The majority in TMA Pai ruled "any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by majority or the minority. Such a limitation must be read into Article 30. The right under Article 30(1) cannot be such to override the national interest or to prevent the government from framing regulations in that behalf". (vide para 107 TMA Pai)
17. The considerations, however, for granting recognition to a minority educational institution and casting accompanying regulation would be similar as applicable to a non-minority institution subject to two overriding considerations: (i) the recognition is not denied solely on the ground of the educational institution being one belonging to minority, and (ii) the regulation is neither aimed at nor has the effect of depriving the institution of its minority status.
18. Clarification of TMA Pai was sought by professional educational institutions, both minority and non-minority. In Islamic Academy 2003 (6) SCC 697 the Court formulated four questions:
(Questions 3 & 4 is relevant to the present case)
(3) whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent; and
(4) whether private unaided professional colleges are entitled to admit students by evolving their own method of admission."
Question no. 3 and 4 was taken up for consideration together. The majority opinion in Islamic Academy held:
(1) In professional institutions, as they are unaided, there will be full autonomy in their administration, but the principle of merit cannot be sacrificed, as excellence in profession is in national interest.
Without interfering with the autonomy of unaided institutions, the object of merit based admissions can be secured by insisting on it as a condition to the grant of recognition and subject to the recognition of merit, the management can be given certain discretion in admitting students.
19. State Government issued Government Order dated 09.05.2004 specifying the Management quota, both for minority and non-minority institution. In reference of minority institution in particular, minority institutions were entitled for filling 50% of their seats at their own level and remaining 50% seats was required to be filled on the basis of recommendation made by joint entrance examination. Petitioners have come up with the case that said quota has been reiterated in subsequent academic session also.
20. Thereafter, 7 Judge Bench in P.A. Inamdar v. State of Maharashtra 2005 (6) SCC 537 was called upon not to decide any new issue but to explain certain unexplained issues to the declaration of law by the majority in TMA Pai. The Apex Court observed that real task before us is to cull out the ratio-decidendi of the TMA Pai Foundation and to examine if the explanation or clarification given in Islamic Academy runs counter to TMA Pai Foundation and if so, to what extent.
Four questions were formulated by the Apex Court for decision:
(1) To what extent the State can regulate the admissions made by unaided (minority or non- minority) educational institutions? Can the State enforce its policy of reservation and/or appropriate to itself any quota in admissions to such institutions?
(2) Whether unaided (minority and non-minority) educational institutions are free to devise their own admission procedure or whether direction made in Islamic Academy for compulsorily holding entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in light of the law laid down in Pai Foundation?
(3) Whether Islamic Academy could have issued guidelines in the matter of regulating the fee payable by the students to the educational institutions?
(4) Can the admission procedure and fee structure be regulated or taken over by the Committees ordered to be constituted by Islamic Academy?
21. P.A. Inamdar while explaining the difference between professional and non-professional 'educational institutions' observed that the "terrain of thought as has developed through successive judicial pronouncements culminating in Pai Foundation is that looking at the concept of education, in the backdrop of constitutional provisions, the professional educational institutions constitute a class by themselves as distinguished from the educational institutions imparting non- professional education. Pai Foundation has clarified that merit and excellence assume special significance in the context of professional studies. Dealing with unaided minority educational institutions, Pai Foundation holds that Article 30 does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions. Regulatory measures for ensuring educational standards and maintaining excellence thereof are no anathema to the protection conferred by Article 30(1)". (para 105 PA Inamdar)
22. Therefore, the situation of minority educational institution is a pyramid like situation and as suggested by S.B. Sinha,J. in Islamic Academy, the right of minority is to be read along with fundamental duty. Higher the level of education, lesser are the seats and higher weighs the consideration for merit. It will, necessarily, call for more State intervention and a lesser say for minority institution.
23. The Court answering question no. 2, regarding admission procedure of unaided educational institutions held that so far as the minority unaided institutions are concerned, to admit students being one of the components of 'the right to establish and administer an institution', the State cannot interfere therewith up to the level of undergraduate education, the minority unaided educational institutions enjoyed total freedom, however, different considerations should apply for graduate and post graduate level of education as also for technical and professional educational institution. Such education cannot be imparted by any institution unless recognised by or affiliated with any competent authority created by law. Excellence in education and maintenance of high standard at this level are must. To fulfil these objectives, 'the State can and rather must, in national interest step in'. (vide PA Inamdar)
24. Education up to the undergraduate level on the one hand and education at the graduate and postgraduate levels and in professional and technical institutions on the other are to be treated on different levels inviting not identical considerations, is a proposition not open to any more debate after TMA Pai. (vide PA Inamdar)
25. The education, knowledge and learning at this level possessed by individual collectively constitutes national wealth. The minority educational institutions, aided or unaided, admissions shall be at the State level. Transparency and merit shall have to be assured. Such an agency conducting CET must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfilment of twin objects of transparency and merit.
26. Holding of such common entrance test followed by centralised counselling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen. (para 136 of P.A. Inamdar)
In para 137, the Court answered the question no. 2 in following terms, paras (137 and 138) is extracted:
"137: Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefor subject to its being fair, transparent and non- exploitative. The same principle applies to non-minority unaided institutions. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. The admission procedure so adopted by private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated herein above, can be taken over by the State substituting its own procedure. The second question is answered accordingly.
138: It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb mal-practices, it would be permissible to regulate admissions by providing a centralised and single window procedure. Such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis."
The principles of law enunciated in TMA Pai and clarified in PA Inamdar can be culled out as follows:
"(a) Professional/technical educational institutions constitute a class by themselves as distinguished from educational institution imparting non-professional education.
(b) Education upto the undergraduate level on one hand and education at the graduate/post graduate levels and in professional and technical institutions on the other are to be treated on different levels inviting not identical considerations, is a proposition not open to any more debate.
Any regulation framed in national/State interest must necessarily apply to all educational institutions whether run by the majority or the minority. Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf. Such a limitation must necessarily be read into Article 30.
(d) Article 30 does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions to unaided minority institutions imparting technical/professional education, is founded on the principle that right to administer does not include a right to maladminister.
(e) The need for affiliation/recognition by the State or the University brings in the concept of regulation by way of laying down conditions consistent with the requirement for ensuring merit, excellence and preventing maladministration. Education at this level constitutes national wealth, therefore, merit cannot be compromised.
(f) The State can as a matter of policy substitute its own procedure, thus, it would be permissible to regulate admissions by providing a centralised single-window procedure duly prescribed by the State or the University. The freedom of choice is available to the minority unaided institution from the list of students.
(g) Merit based admissions to technical and professional institutions would require monitoring not only of admission procedure but also determining fee structure, such regulations are not violative of the rights of either the minorities or non-minorities.
(h) The minority educational institutions, aided or unaided, admissions shall be at State level and the agency conducting the CET must be enjoying utmost credibility and expertise in the matter."
27. However, keeping in view the Apex Court judgment in Islamic Academy's case (supra) and the Regulations framed by the Council under the NCTE Act, Order, 1987 was amended. The relevant amended provisions of para 7, 12, 14 of the Uttar Pradesh State Universities (Regulation of Admission to Courses of Instruction for Degree in Education In Affiliated, Associated and Constituent Colleges) (Fourth Amendment) Order,2005 are reproduced as under:
7. Every University shall organise its own combined admission examination for admission to B. Ed. courses in its affiliated, associated and constituent colleges. The admission examination of all the Universities shall be organised on one and the same date as may be fixed by the State Government.
7. (a) In case the entrance examination for admission to B. Ed. Course is conducted by the Association of self-financing institutions, the date of this examination shall be other than the date of examination conducted by the University.
12.(1) Separate merit lists for reserved and general seats shall be prepared on the basis of marks obtained in admission examination and the marks obtained under para 11 mentioned above;
(2) If the marks obtained by two or more candidates on the basis of admission examination and para 11 are equal preference shall be given to the candidate of the same University or of college affiliated or associated with or constituent of the same University If still the marks are equal then candidate being elder will be given preference.
(3) If against the conduct of any candidate there is report in writing of District Magistrate or against whom criminal proceedings are in process in any court of law or if candidate has been punished by any court in any criminal case or if the candidate has been debarred from University Examination for two or more years due to use of unfair means the Principal of the college can refuse admission to such candidate with prior written approval of the Vice-Chancellor.
(4) The criteria for preparing merit list on the basis of entrance examination conducted by the Association of self-financing institutions with prior permission of the University and under the supervision of the University shall be the same as provided above.
14.(a) The Principal of the concerned college shall give admission to the candidates after verifying their original certificates;
(b) The provisional certificate specially for the marks under para 11 shall not be accepted.
(c) The Principal has to take prior approval of the Vice- Chancellor before finally refusing admission to any candidate;
(d) The University shall also prepare a waiting list. If any seat falls vacant within a month after the classes have started it will be filled from waiting list. It shall be the responsibility of the University to intimate the college and the candidate to fill the vacant seats;
(e) Every candidate selected for admission shall before admission have to furnish a certificate countersigned by the Chief Medical Officer in which it should be clearly mentioned that the candidate does not stammer and on account of any disease of the ear, eye or any other limb is not unfit to be a teacher;
(f) Admissions under management quota shall be made by the college on the basis of the merit list of the students selected in the entrance examination conducted by the University concerned, which shall be prepared as per para 12 of the aforesaid order. But in case the entrance examination is conducted by the Association of the self-financing institutions with prior permission and under the supervision of the University admission under the management quota shall be made on the basis of the merit list of such an entrance examination also. But such option shall be exercised by the college concerned before commencement of the admission procedure only after seeking prior approval of the University concerned. For admission under management quota the college concerned shall publish notice for inviting admission applications in most widely circulated daily news papers of the district concerned, which shall include the last date for submission of applications which shall last up to at least 15 days after the date of publication of such notice. The merit list shall be prepared on the basis of all the applications received till the last date. This merit list shall be approved by the University concerned and in accordance with the approved merit list, admissions of the students shall be made against the number of seats as determined by the State Government under the management quota. In case the students up to the number of seats determined under the management quota are not available, the same procedure shall be repeated to complete admissions. Only such students shall be eligible for applying under this admission procedure who have participated in the entrance examination conducted by the University and also whose names find place in the merit list declared by the University or whose names are published in the merit list of the entrance examination conducted by the Association of the self-financing institutions. Other provisions with regards to admissions under management quota shall be as above.
28. A close reading and scrutiny of the Order, 2005 indicates that it was issued by the State Government, in pursuance of the power conferred by the statutory Regulations framed by the NCTE and notified on 27.5.2005. Fifth amendment to this regulation was made by the State Government on 1.9.2005. Lastly by an order effected on 01.02.2007, which is seventh Amendment Order, Clause 7 has been amended to provide for joint entrance examination by one University at the State level. Said clause provides for as follows:-
"Joint Entrance Examination will be conducted by a State University authorised by the State Government for admission to B.Ed. courses in each academic session. The date of examination will be determined by the State Government.
In case the entrance examination for admission to B.Ed. Course is conducted by the State level Association of self-financing institutions, the date of this examination shall be other than the date of examination conducted by the State University."
29. Thus it is clear that under this order, from the academic year 2007-08, a State level examination is provided, as a single window system with an option to association to have their examinations at the State level provided of course the association represents all such institutions.
30. The amended Clause (c) of sub-para (1) of para 3 of the Order, 2005 provides that in case the entrance examination is conducted by the self-financing institution at State level, then the date of such examination shall be other than the date of the examination conducted by the University.
31. From academic session 2007-08, a State level examination is provided, as a single window system. The Government Orders prescribing the procedure for admission and allowing the Universities to hold examinations at the State level, has been holding the field during relevant academic years. Such arrangement is not at all in conflict with the regulations either framed by NCTE or under Section 28 of U.P. State Universities Act, 1973.
32. The State by 10th amendment notified on 10 June 2015 amended Regulation 1987 which was made applicable for session 2015 onwards, which provides for admissions for all the institutions of the State based on C.E.T. on the principle of single window followed by counselling.
33. On the parameters of the provisions that have been quoted above and the judicial pronouncement that has come forward the facts of the case that cannot be disputed in this case is that petitioners institution was very well aware of the fact that 50% of the seats in question are to be filled up from amongst candidates, who have undertaken the common entrance test for B.Ed. programme and 50% of the seats could have been filled based on examination conducted by the minority group of institutions. The issue is that once 50% of the students were required to be admitted on the strength of common entrance test conducted by State and its instrumentality, and requisite number of students had not been send, was it open to the minority institution to fill up said seats based on the merit of entrance examination conducted by group of minority institutions.
34. To answer this question, at the outset, we will examine the Full Bench judgement of this Court in the case of Tuples Educational Societies and other v. State of U.P. and others 2008 (3) AWC 2499, wherein, six questions for consideration was framed by the Full Bench and answered as follows:
"1. Whether the admissions to private unaided (minority and non-minority) colleges imparting education for Bachelor of Education Courses recognised by NCTE and affiliated to the University can be made by any method other than by holding a common entrance test either by the State/Universities or by all the colleges of the State coming together as provided in P.A. Inamdar's case?
3. Whether in the absence of any common entrance test held by all the colleges coming together or a common entrance test conducted by the State Government or all the Universities in the State the admissions can be made through the entrance examination held by individual universities providing list of students through counselling to these colleges?
5. Whether for the session 2005-06 the students admitted to the management of the private unaided colleges imparting education for B.Ed. recognised by NCTE and affiliated to Veer Bahadur Singh Purvanchal University, Jaunpur on the basis of their procedure of admission can be said to be properly and legally admitted students and entitled for the study examination and the declaration of the result.
35. The Court nullified the B.Ed. admission made by the private unaided colleges adopting their own method/procedure of admission and categorically held that the admission to private unaided (minority or non-minority) colleges imparting education for B.Ed. course cannot be made by any method other than by holding C.E.T. either by State/University or by all the colleges of the State coming together as provided in P.A. Inamdar.
36. Answer to this question can also be found in the case of College of Professional Examination v. State of U.P. 2013 (2) SCC 721 wherein the Apex Court negated the demand of providing approved number of students. Relevant extract of said judgment is as follows:-
"36. The intake capacity of an institution as mentioned in the recognition order issued by N.C.T.E. or as mentioned in any order of the affiliating University only refers to the maximum number of students, which the institution is permitted to admit in the B.Ed. Course considering its infrastructure and other facilities including teaching and other staff. It does not mean that such number of students are available for admission nor that such number of students have necessarily to be admitted or they have to be provided by the affiliating University/University conducting C.E.T./State. There is no such constitutional or statutory/legal right in favour of an educational institution nor corresponding obligation on the aforesaid authorities. If the students do not opt for admission in an educational institution through counselling and its seats remain vacant it cannot have any cause for grievance in the eyes of law."
37. Once categorical mention has been made that there would be no diversion from the policy of 50% admission by common entrance test and 50% admission by the group of institution on merit on the strength of examination conducted, then G.O. Dated 14.02.1999 would not at all come to the rescue or reprieve of petitioners' institution, for the reason that the said government order had been issued prior to issuance of Government Order dated 09.05.2014 and under Government Order dated 09.05.2014 categorical mention was made that percentage provided for be not violated and as per the petitioner themselves, said policy is being followed uniformly till date.
38. We, at this juncture, would take a pause and would take a note of the fact that as far as group of minority institutions are concerned, they were given authority to conduct their own examination. Once Minority Institution in question have come forward forming an association for holding of examination, then as per the provisions quoted above and the judicial pronouncements made from time to time, same never authorizes minority group of institutions at local level i.e. based on its affiliation to undertake process of selection. The selection in question in both the case i.e. in examination conducted by the State Government through its agency, common entrance test has to be at state level as well as the examination required to be conducted by the minority group of institutions has to be an examination to be conducted by minority group of institutions spread over entire state of U.P. by coming together and in view of this, we are not simply commenting upon the way and manner the minority institutions affiliated to C.C.S. University, Meerut have proceeded ahead.
39. In future, the minority institutions also will have to abide by the law of the land i.e. in case they intent to fill up 50% of the seats meant for them, then at State Level, a Society/Association in question of all the colleges will have to come forward for undertaking exercise for selection of students but such an exercise on localised level, certainly is not at all as per the spirit of the provisions as understood in the case of P.A. Inamdar. Emphasis for such examination at state level by all institutions coming forward is keeping in view the larger interest and welfare of student community to promote merit, achieve excellence and to curb malpractice to regulate admission by providing a centralised and single window procedure.
40. We, in the present case, proceed with this assumption that the provisions of "2006 Act" are not applicable to minority institutions but that does not ipso facto means that the law that has been holding the field prior to enforcement of the Act or other law that has been issued subsequent to the same, stands inapplicable to minority institutions. The minority institutions will have to comply with the regulatory measure that have been holding the field in order to maintain transparency and fairness and in view of this, in our considered opinion, there was no occasion or justification to declare the provisions of minority institution's exclusion from the scope and ambit of the "2006 Act" being arbitrary or unreasonable and accordingly ultra-vires rather the impact of the same was required to be seen in the light of the fact that the provisions of "2006 Act" would not be applicable but other regulatory measures that continue to hold the field would continue to govern the affairs of minority institution also in the matter of admission in professional courses affiliated to University in consonance with the provisions as contained under U.P. State Universities Act, 1973 and recognised and approved by National Council For Teacher Education. Regulatory measures provided for under U.P. State Universities Act, 1973 as well as provided for under NCTE Act 1993 would continue to hold the field and minority institutions as per the terms and conditions of affiliation of University as well as per the terms and conditions of recognition and approval are obligated to comply with the same. Provisions of "2006 Act" are not at all in supersession of all other existing law holding the field.
41. Mention has also been made by placing reliance on the judgement of Apex Court in the case of St. John Inter College v. Girdhari Singh 2010 Law Suit (SC) 581, that once minority institution has been exempted from the provisions of "2006 Act", then legislative intent is clear that legislature never intended that minority institutions should undergo the rigors of Common Entrance Test, and accordingly full freedom is there. As far as said judgement is concerned, therein minority institutions were exempted from the provisions of U.P. Act No.V of 1982, in the said context Apex Court observed that legislature intent is clear that legislature never wanted the order of termination of an employee of minority institution to the approval/disapproval of the Board. Said judgement has been rendered keeping in view, contextually different situation, whereas here admission process is being adhered pursuant to there judgements of Apex Court already dealt with above dealing with right of minority institution, in the matter of according admission to students. Moreover "2006 Act" does not rule out application of provisions of U.P. State Universities Act, 1973 as well as NCTE Act, 1993.
42. The petitioner's institution has understood the things in the said direction and has proceeded to act accordingly by admitting 21 students so recommended through central counselling and petitioners institution as such cannot proceed to say that merely because 2006 Act proceeds to accord exemption to minority institutions, they would not be governed by any rule of law. The fact of the matter is that whatsoever law has been holding the filed prior to enforcement of 2006 Act and are not running counter to the provisions of 2006 Act, would continue to hold the field along with further directives issued by the State Government in the said direction without making any distinction as to whether the institution in question is a minority institution or it is a non minority institution.
43. Paramati Trust Educational and Cultural v. Union of India 2014 (8) SCC 1 has been relied upon by the petitioners to contend that the minority institutions have absolute right to fill 100% seats on their own choice. In this regard it has been contended that a Division Bench of this Court in Special Appeal (D) No.376 of 2014 National Mahila Mahavidyalya Balrampur v. State of U.P. decided on 25.09.2014, has accorded permission to fill up entire sanctioned seats and such similar treatment be extended to petitioners' institution also in reference of 29 remaining seats. Said judgement in question proceeds to record concession of learned Standing Counsel, that the said case is covered by decision of Apex Court i.e. Paramati case. Let us now examine, as to what is the ratio of Paramati's case. The issue before the Court was regarding the validity of clause (5) of Article 15 inserted by the Constitution (Ninety-third Amendment) Act, 2005, and Article 21-A of the Constitution of India.
" Both clause (5) of Article 15 and Article 21A were inserted in the Constitution by Parliament by exercise of its power of amendment under Article 368 of the Constitution. A Bench of thirteen-Judges of this Court in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and another, considered the scope of the amending power of Parliament under Article 368 of the Constitution and the majority of the Judges held that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. Hence, we are called upon to decide in this reference the following two substantial questions of law:
i) Whether by inserting clause (5) in Article 15 of the Constitution by the Constitution (Ninety-third Amendment) Act, 2005, Parliament has altered the basic structure or framework of the Constitution.
ii)Whether by inserting Article 21A of the Constitution by the Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament has altered the basis structure or framework of the Constitution."
44. Article 21A provides for free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Accordingly, Right of Children to Free and Compulsory Education. Act, 2009 (for short 2009 Act) was enacted by the Parliament to provide free and compulsory education to all children of the age of six to fourteen years. The validity of the 2009 Act was challenged and considered in Society for Unaided Private Schools of Rajasthan v. Union of India and another by a three-Judge Bench. The validity of the 2009 Act was upheld and was made applicable, inter alia, on schools including aided minority schools receiving aid or grants to meet whole or part of its expenses. However, the 2009 Act, in particular sections 12(1) (c) and Section 18(3), infringe the fundamental rights guaranteed to unaided minority schools under Article 30(1) of the Constitution and therefore, held that 2009 Act shall not apply to such unaided minority schools.
45. The Constitution Bench in Paramati Trust, upon discussing the law, provisions and judgments rendered, was of the view that if Act 2009 is made applicable to minority school, aided
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or unaided, the right of minority under Article 30(1) of the Constitution will be abrogated. The view in Society for Unaided Private Schools of Rajasthan, insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct. Therefore, Paramati Trust is applicable upon minority institutions imparting undergraduate courses (schools), where aided or unaided minority institution have an absolute right to admit students of their choice without State intervention. Further, reservations under Article 15(5) cannot be imposed on minority institution, though insertion of Article 15(5) in the Constitution was upheld. The Court was not dealing with rights of private minority institution imparting graduate/postgraduate/technical or professional education which stands settled in TMA Pai and stands on al-together different footing. Decision of Apex Court is to be read with reference to and in the context of peculiar statutory provisions the law has been laid down as decision of the Court takes it colour from the questions involved in the case in which it is rendered and while applying decision to a later case, the Courts are duty bound to ascertain the true principle laid down by Court. Decision cannot be relied upon in support of preposition that it did not decide. 46. In such a situation once the admission in question is governed by holding of examination by the counselling University, same certainly is in the realm of policy decision of the State, in consonance with the provisions as contained under Regulation framed under NCTE Act as well as the provisions of Section 28 of U.P. Universities Act read with U.P. State Universities (Regulation of Admission to Courses of Instruction for Degree in Education in Affiliated/Associated/Constituent Colleges) Order 1987. From 2007- 08, State level examination is provided, as a single window system and to the minority institution 50% seats have been conceded and in view of this thought process that minority institutions have right to admit cent percent students cannot be subscribed by us. 47. Consequently, in the present case, once the facts of the case are looked into, the inevitable conclusion is that petitioner's were conscious of this fact that they are entitled to fill 50% of the sanctioned seats on their own by holding an examination at state level by the group of minority institutions spread over the entire State and 50% seats were liable to be filled under Common Entrance Test that has been so prescribed but at no point of time there has been any leverage or liberty accorded to the petitioner's institution for filling up the unfilled seats required to be filled through Common Entrance Test (C.E.T.). The petitioners in the present case admittedly have transgressed and overstepped limit of quota that was prescribed to be filled up by them. 48. Once petitioners are responsible for creating such a situation, then they have to blame themselves instead of seeking misplaced sympathy before this Court that said students should be accommodated. The Full Bench of this Court has already disapproved such actions wherein the Managing Committee in transgression and overstepping of its jurisdiction admitted the students and the reason that has prevailed is that it should act as a deterrent to other students not to come forward for taking admission and then talk of equity. The petitioners are duty bound to be on the side of the law instead of proceeding to violate the same and then trying to get it condoned on the basis of misplaced sympathy, in view of this as far as we are concerned, we are not at all condoning the act of the management in proceeding to admit 29 students without any authority of law. 49. It may be true that said 29 students are from the same list from which 50 students have been accorded admission. Once the quota in question has been fixed, then the said quota in question could not have been exceeded and overreached and in view of this, the inclusion of 29 students is totally unwarranted and the University has acted well within its right in not entertaining such students whose entry in the stream is itself was not backed by statutory provision rather it was backed by violation of law. 50. We may not approve of various observations that have been made by learned Single Judge in the decision making process but certainly the conclusions that has been arrived at by learned Single Judge are being subscribed by us for the simple reason that once the quota stood exhausted, then the college in question has no authority to admit students even if seat in question was lying waste or going waste. 51. At this juncture, we also proceed to take note of the judgement as noted by learned Single Judge in the case of S. Nihaal Ahmed v. The Dean Velammal Medical College Hospital and Research Institute and others 2016(1) SCC 662 wherein, Apex Court by relying on the judgement in the case of Chandigarh Administration and another v. Jasmine Kaur and others 2014 (10) SCC 521, held that if a candidate is not selected during a particular academic year due to the fault of the institution and in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, the students are entitled to damages/compensation. 52. Consequently, in the present case, once the students have been wrongly admitted and have been deprived by the University from taking the B.Ed examination, then as already mentioned above, we cannot subscribe the illegal act of the Managing Committee and the Learned Single Judge is absolutely right in his wisdom in awarding compensation to the said students as admittedly their valuable one academic year has been wasted. 53. Consequently, no interference is being made but before parting we make it clear that it appears that pronouncement of the Apex Court is not at all being complied with in its word and spirit and even minority institutions in case they are given liberty to fill up 50% of the seats, the same should not be a localised exercise rather all the minority institutions will have to come forward under one umbrella for holding of one common entrance test at State level apart from the common entrance test being held by the State Government and it would be much more appropriate if they join the main stream as has been directed by the Apex Court in the case of 'NEET Examinations': Modern Dental College and Research Center v. State of M.P. 2016 (7) SCC 353. 54. Consequently, challenge made sans merit, in view of this, present Special Appeal and the connected Special Appeal are dismissed. 55. No order as to cost.