w w w . L a w y e r S e r v i c e s . i n



Sankalp Institute of Education v/s State Of U.P. & Others


Company & Directors' Information:- M G INSTITUTE OF EDUCATION PRIVATE LIMITED [Active] CIN = U80301DL2002PTC118047

Company & Directors' Information:- SANKALP CORPORATION PRIVATE LIMITED [Active] CIN = U70102GJ2011PTC068283

Company & Directors' Information:- M. S. INSTITUTE OF EDUCATION PVT. LTD. [Active] CIN = U80301DL2006PTC152100

Company & Directors' Information:- P R EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129195

Company & Directors' Information:- V C EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129201

Company & Directors' Information:- R V EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129311

    Writ C No. 24853 of 2016

    Decided On, 21 December 2016

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE SUNEET KUMAR

    For the Petitioner: Anoop Trivedi, Advocate. For the Respondents: C.S.C., Avneesh Tripathi, Advocate.



Judgment Text

Petitioner institution is a minority institution duly affiliated with respondent-University, Chaudhary Charan Singh University, Meerut, and is imparting course in Diploma in Elementary Education (D.E.Ed.), commonly known as B.T.C. Course and Bachelor of Education Course (B.Ed.).

The courses and intake of students is duly recognized and approved by the National Council for Teacher Education (NCTE). The institution can admit 100 students for B.Ed. course which is a self finance course. As per the Policy of the State Government, Bundelkhand University, Jhansi, was appointed to conduct the Common Entrance Examination (CET) for B.Ed. programme for 2014-15. Upon counseling, petitioner institution was allotted 21 students under the quota to be filled on the recommendation of the counseling university.

It is alleged that minority institutions running B.Ed. course established a society, namely, Minority Group of Institutions, Chaudhary Charan Singh, University, Meerut under the Societies Registration Act, 1860. The society undertook to make selection of students for the respective minority institutions on the basis of CET. Accordingly, an advertisement was published, examination was conducted under the supervision of Professor K.G. Sharma, Former Head, Department of Education, Chaudhary Charan Singh University, Meerut and Dr. A.V. Khan, Former Head, Department of Education, Chattrapati Sahu Ji Maharaj, University, Kanpur. Pursuant thereof, petitioner institution admitted 79 students, 50 under the minority quota and the shortfall by 29 students under the merit quota.

Petitioner is assailing the press communication dated 27 April 2016, whereby, students admitted by the petitioner-institution on their own have been declined to take B.Ed. examination conducted by the respondent affiliating University.

Submission of the learned counsel for the petitioner is: (i) minority institutions have absolute right to admit students of their choice; (ii) upon conducting entrance examination by the organization of minority institutions of the region, students were admitted on merit; (iii) the right of minority institutions to admit students cannot be regulated by the State or University; (iv) counseling university failed to provide the requisite number of students, thus, compelling the institutions to intake students by devising a mechanism of their own; (v) Government order dated 14 December 1999 permits minority institutions to fill up the shortfall of students not provided by the counseling university; (vi) the previous practice of the university has been to permit such students to take examinations (2013-14); (vii) for B.T.C. course, minority institutions have been permitted to fill up 100% seats on their own, therefore, B.Ed. course cannot be discriminated against; (viii) reliance is placed on National Mahila Mahavidyalaya, Balrampur vs. State of U.P. and others(Special Appeal (D) No. 376 of 2014) (National Mahila Mahavidyalaya) decided on 25 September 2014 and the Government Order issued pursuant thereof; (ix) minority institution has been exempted under the U.P. Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006.

In rebuttal Sri Mangla Prasad Rai, assisted by Sri Avneesh Tripathi, learned counsels appearing for the respondent-University and learned Standing Counsel appearing for the State-respondents would not dispute the facts, however, would submit: (i) minority institutions, aided or unaided, do not have an absolute right to take admissions for technical course on a mechanism devised by the institutions; (ii) State incompliance of the Constitution Bench decisions rendered in T.M.A. Pai Foundation vs. State of Karnataka (2002 (8) SCC 481) (TMA Pai); Islamic Academy of Education and another vs. State of Karnataka (AIR 2003 SC 3724) (Islamic Academy); and P.A. Inamdar vs. State of Maharashtra (2005 (6) SCC 357) (PA Inamdar); authorized the deputed university to conduct CET for admissions to the B.Ed. course for all institutions of the State; (iii) students who have not participated or appeared in the CET conducted by the counseling university cannot be admitted to the course in either quota; (iv) neither the State nor the counseling university is bound to provide students to fill up the seats under the counseling quota; (v) B.T.C. Course /B.Ed. course being technical/professional courses, pursued after graduation, therefore, institutions have no right to take admission on their own bypassing CET conducted by an agency appointed by the State Government; (vi) National Mahila Mahavidyala is not a binding precedent as the judgment was rendered on concession and not on merit.

Rival submissions fall for consideration.

The facts, inter se, parties are not in dispute. Petitioner is a recognized minority institution duly approved and recognized by the NCTE to impart BTC and B.Ed. course. The dispute pertains to the intake of 100 students for the B.Ed. course. State Government assigned Bundelkhand University to conduct the CET for 2014-15 and for 2015-17 CET was conducted by Lucknow University. Pursuant thereof, upon counseling 21 students were allotted to the petitioner institution under the counseling/merit quota. The shortfall of 29 students were admittedly filled by the institution by separately conducting entrance examination. The affiliating university has refused to recognize the admissions not being in accordance to State policy which is binding on the University, accordingly, the students were not issued admit cards for taking the B.Ed. examination.

As per the Government Order occupying the field, 50% of the seats were required to be filled up by the students recommended by the counseling University based on their inter se merit in the CET followed by centralized counselling. The remaining 50% of seats were to be filled by the minority institutions from the religious or linguistic students to which the institution belongs. The minority institutions before the Court are unaided self financed institutions.

The questions that fall for determination is: (i) whether unaided/self financed minority institution have absolute right to admit students of their choice by adopting a mechanism of their own, bypassing or outside the policy of the State provided through a single window system; (ii) whether single window system i.e. CET followed by centralized counselling in admitting students for B.Ed. course infringes upon the right of the minority institutions as contemplated under the Act 19(1)(g) and 30 of the Constitution of India; (iii) whether minority institutions imparting B.Ed. course are entitled to claim parity with B.T.C. Course vide Government Order dated 10 June 2015; (iv) 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; (Private Institutions Act, 2006); (v) whether counselling university is bound to provide cent percent students to the institutions.

It would be apposite, in the first instance, to examine the principle of law governing minority institutions imparting technical/professional education.

It is for the first time in TMA Pai that the question of application of Article 30 to minority professional colleges arose. All earlier judgments of the Supreme Court were only concerning education in schools and colleges other than those imparting technical/professional education.

In TMA Pai 11 questions were framed to be answered. The 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 Statewise.

Q. 2. ….....

Q. 3. ….....

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 meritbased 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.

[emphasis supplied]

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.

[emphasis supplied]

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 maladministration. 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. 6. …......

Q. 7. …......

Q. 8. …......

Q. 9. …......

Q. 10. ….....

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 hereinabove.

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.

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 instill 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'.

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)

The term minority is not defined in the Constitution, in TMA Pai, the majority taking a clue from the provisions of the State Reorganization Act held that it is the State and not the whole of India that shall have to be taken as the unit for determining a linguistic minority visa- vis Article 30.

TMA Pai ruled in no uncertain terms, emphasizing the need for preserving the minority character of the institution so as to enjoy the privilege of protection under Article 30(1), it is necessary that the objective of establishing the institution was not defeated. 'In other words, the predominance of linguistic/religious minority students hailing from the State in which the minority educational institution is established should be present. The Management bodies of such institutions cannot resort to the device of admitting the linguistic students of the adjoining State in which they are in a majority, under the facade of the protection given under Article 30(1)'. However, as held in Kerala Education Bill vs. Unknown (AIR 1958 SC 956) 'sprinkling' number of students of that minority from other State, on the same footing, as a 'sprinkling' of non-minority students, would be permissible and would not deprive the institution of its essential character of being a minority institution determined by reference to that State as a unit. (Refer: Nayab Abbasi Girls Degree College vs. State of U.P.(Writ C No. 35328 of 2015 decided on 10 May 2016.)

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.

Clarification of TMA Pai was sought by professional educational institutions, both minority and non-minority.

In Islamic Academy the Court formulated four questions: (Questions 3 & 4 is relevant to the present case)

(1) …...

(2) …...

(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.

(2) 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.

Thereafter, 7 Judge Bench in P.A. Inamdar 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 real task before us is to cull out the ratiodecidendi 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 Court for decision:

(1) To what extent the State can regulate the admissions made by unaided (minority or nonminority) 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 nonminority) 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?

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 nonprofessional 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)

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.

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 recognized by or affiliated with any competent authority created by law. Excellence in education and maintenance of high standard at this level are must. To fulfill these objectives, 'the State can and rather must, in national interest step in'. (vide PA Inamdar)

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) 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 fulfillment of twin objects of transparency and merit.

Holding of such common entrance test followed by centralized counseling 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 nonexploitative. The same principle applies to nonminority unaided institutions. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and meritbased admissions and preventing maladministration. 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 hereinabove, 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 malpractices, it would be permissible to regulate admissions by providing a centralized 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.

(c) 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 centralized 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.

Having spelled out the law, I would proceed to consider the decisions relied upon by the counsels.

Learned counsel for the petitioner placed reliance in support of his submission on decisions rendered by the Division Bench in National Mahila Mahavidyala, Single Bench decisions rendered in Haji Ismile Degree College vs. State of U.P. (Writ Petition No. 1905 (MS) of 2011 decided on 18 May 2011) and City College of Management, Lucknow through Vice President vs. State of U.P.(Writ Petition (MS) 2005 of 2015 decided on 13 April 2015) decided along with Eram Girl Degree College through Manager vs. State of U.P.(Writ Petition (MS) No. 1400 of 2015 decided on 13 April 2015)

Pursuant thereof, the State Government vide notification dated 10 June 2015, modified/amended the earlier notification dated 22 July 2013 pertaining to admissions to BTC Training Course 2013, wherein, it was provided that the minority institutions duly recognized approved by the NCTE and the State Government shall be entitled to intake students on 100% seats by resorting to a mechanism to be determined by each institution. The procedure spelled out in the government order, inter alia, required that upon publication of advertisement, students could be selected by the institution giving preference to students belonging to their minority community. The decisions and the government order relied upon needs to be examined in the light of the law laid down in TMA Pai, Islamic Academy and P.A. Inamdar. In National Mahila Mahavidyalaya, the order of the Single Bench was subjected to challenge in appeal. The writ petitions were dismissed with the observation that State Government was fully empowered to regulate admissions in the minority institutions. The institutions before the writ court were seeking quashing of paragraph 13 of the Government Order dated 22 July 2013, further, a direction to permit the appellant/institutions to fillup 100% instead of 50% seats of the BTC course on there own. The appellate Court order would note the rival submissions, and thereafter, upon concession made by the learned Standing Counsel, the appeal was allowed.

The relevant portion of National Mahila Vidalaya is extracted:-

The learned counsel for the appellant has submitted that the appellantpetitioner is also entitled to get the benefit of the aforesaid judgment which has been rendered relying upon the decision of the Hon'ble Apex Court in the case of Pramati Educational and Cultural Trust (supra).

The learned Standing Counsel does not dispute that the present case is also squarely covered by decision of the Hon'ble Apex Court referred to above.

We, therefore, allow the Special Appeal and set aside the order of Hon'ble Single Judge dated 28.5.2013 and hold that the appellantpetitioner being minority institution is free to admit the students on its own chose. however, the merit of the students cannot be ignored.

National Mahila Mahavidyalaya, in my opinion, would not be a binding precedent as it does not decide any issue rather the appeal was allowed on concession that the ratio of Paramati Educational and Cultural Trust and other vs. Union of India (2014(8) SCC 1) (Paramati Trust), would apply.

City College of Management/Eram Girls Degree College, was rendered relying on National Mahila Mahavidayala.

In Haji Ismile, the Degree College affiliated to Dr. Ram Manohar Lohiya, Awadh University sought a direction to conduct the examination of B.Ed. 2009-10. It was pointed out that by amending paragraph 7 of the U.P. State Universities (Regulation of Admission to Courses of Instructions for Degree in Education in Affiliated Associated Colleges) Order, 1987, the State Government declared Session 2009-10 as Zero Session. The notification dated 15 October 2009 was subjected to challenge which was set aside by the Court in Jamuna Devi Naresh Chandra Mahavidyalaya vs. State of U.P. and others (Writ Petition (MB) No. 11908 of 2009). The decision is of no relevance to the present controversy.

The Government Order dated 10 June 2015 issued pursuant to National Mahila Mahavidyalaya is grossly in teeth of the law spelled out in TMA Pai. The procedure for admission for all the institution has to be held at the State level, through a single window procedure and certainly not at the level of the institution. The Government Order, therefore, is not in the interest of the students who have been subjected to harassment. Teacher training course can be taken by students having graduation degree passed with the prescribed minimum marks. Merit and excellence of these students collectively constitute national wealth, therefore, cannot be compromised. The private minority institutions imparting BTC Course are to be subjected to the same regulation/government order governing admission and fee regulation in respect of other institution imparting the same course. The minority/non-minority institutions imparting the same course constitute a class, therefore necessarily, would be subjected to same regulations. The Government Order dated 10 June 2015 is also violative of Article 14 of the Constitution of India, therefore, unsustainable and illegal.

The learned counsels appearing for the respondents have placed reliance on Tuples Educational Societies and another Versus State of U.P and others (2008 (3) AWC 2499) (Tuples Societies) wherein, six questions for consideration was framed by the Full Bench and answered as follows:

'1. Whether the admissions to private unaided (minority and nonminority) colleges imparting education for Bachelor of Education Courses recognized 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?

Ans. No

2. ….........................

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?

Ans. Yes

4. …..........

5. Whether for the session 200506 the students admitted to the management of the private unaided colleges imparting education for B.Ed. recognized 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.

Ans. No

6. ….........'

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 nonminority) 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. The provisions of the Regulation framed under the National Council for Teacher Education, Act 1993 (NCTE Act) was also considered and the plea that individual colleges have got right to admit candidates on the basis of qualifying marks obtained in the qualifying examinations was rejected. Such qualifying examination or the entrance examination shall be held in pursuance of the policy of the State Government. Thus, examinations can be held either by the State Government or in case the Government decides it can delegate such power upon the University.

After adopting the procedure prescribed for filling 50% of the seats through the C.E.T., in the event of seats remaining vacant, neither the State nor the University is under an obligation to provide students to the petitioner institutions. Whether the institution should be allowed to fill up the remaining seats on its own by adhering to the triple test laid down in T.M.A. Pai, does not permit me to take a contrary view, therefore, the relief claimed by the petitioner has to be rejected.

In Dau Dayal Mahila (PG) College Versus State of U.P.(2015(5) AWC 5426 (LB), Single Bench of this Court was considering as to whether 'the petitionerinstitution can be permitted to fill up the remaining vacant seats within its intake capacity on its own and also whether it can do it on merit based on the marks obtained in the qualifying examination as per Regulations 3.2 and 3.3 of the Regulations, 2014 or not?'

The Court relying on the decisions of this Court and Supreme Court, referred herein above, and placing reliance on the decision rendered by the Supreme Court in College of Professional Education Versus State of U.P. and others (2013(2) SCC 721), rejected the plea and answered the question in negative holding that neither State nor the University is bound to provide approved number of students to fill up the vacant seats post C.E.T. and centralized counseling. Paragraph 36 is extracted:

'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 counseling and its seats remain vacant it cannot have any cause for grievance in the eyes of law.'

The minority institutions (aided or unaided) or for that matter all self financed institutions imparting professional or technical education cannot admit students on their own but would have to depend upon the policy/mechanism of the State Government through the C.E.T. followed by centralized counseling.

The petitioners do not dispute that C.E.T. for session 2014-15 B.Ed. course was conducted by the Bundelkhand University, Jhansi for admission to all the institutions including minority institution similarly for 2015-17. The petitioners who are ultimately seeking a direction to the State to permit them to fill the vacant seats on their own, for the law stated, hereinabove, is impermissible.

Paramati Trust, was heavily relied upon by the petitioners to contend that the minority institutions have absolute right to fill 100% seats on their own choice. The decision, in my opinion, would not apply to the facts of the case at hand. 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.

'[4] 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 thirteenJudges of this Court in His Holiness Kesavananda Bharati Sripadagalvaru Versus State of Kerala and another(1973 (4) SCC 225), 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 (Ninetythird 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 (EightySixth Amendment) Act, 2002, Parliament has altered the basis structure or framework of the Constitution.'

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 Versus Union of India and another (2012) 6 SCC 102) 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.

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 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.

The examination (CET) held by the counseling University is referable to the policy of the State, as required under the Regulation framed under the N.C.T.E. Act on eligibility. The policy is contained and regulated under Section 28 of the U.P. State Universities Act, 1973. Section 28 reads as follows:

'28. Admissions Committee.( 1) There shall be an Admissions Committee of the University, the constitution of which shall be such as may be provided for in the Ordinances.

(2) The Admissions Committee shall have the power to appoint such number of subcommittees as it thinks fit.

(3) Subject to the superintendence of the Academic Council and to the provisions of Subsection (5), the Admissions Committee shall lay down the principles or norms governing the policy of admission to various courses of studies in the University and may also nominate a person or a subcommittee as the admitting authority in respect of any course of study in an Institute or a constituent college maintained by the University.

(4) Subject to the provisions of Subsection

(5) the Committee may issue any direction as respects criteria or methods of admissions [(including the number of students to be admitted)] to constituent colleges maintained by the State Government and affiliated or associated colleges, and such directions shall be binding on such colleges.

(5) Notwithstanding anything contained in any other provision of this Act:

(a) reservation of seats for admission in any course of study in University, Institute, constituent college, affiliated college or associated college for the students belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens may be made and regulated by such orders as the State Government may, by notification, make in that behalf:

Provided that reservation under this clause shall not exceed fifty per cent of the total number of seats in any course of study.

Provided further that reservation under this clause shall not apply in the case of an institution established and administered by minorities referred to in Clause (1) of Article 30 of the Constitution.

Provided also that the reservation under this clause shall not apply to the category of Other Backward Classes of citizens specified in ScheduleII to the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994.

(b) admission to medical and engineering colleges and to courses of instruction for degrees in education and Ayurvedic or Unani systems of medicine (including the number of students to be admitted), shall subject to Clause (a), be regulated by such orders (which if necessary may be with retrospective effect, but not effective prior to January 1, 1979) as the State Government may by notification., make in that behalf:

Provided that no order regulating admission under this clause shall be inconsistent with the rights of minorities in the matter of establishing and administering educational institutions of their choice;

(c) in making an order under Clause (a), the State Government may direct that any person who willfully acts in a manner intended to contravene, or defeat the purposes of the order shall be punishable with imprisonment for a term not exceeding three months or with fine not exceeding one thousand rupees, or with both, as may be specified in the order.

(5A) Every order made under Clause (a) of Subsection (5) shall be laid, as soon as may be, before both Houses of the State Legislature and the provisions of Subsection (1) of Section 23A of the Uttar Pradesh General Clauses Act, 1904 shall apply as they apply in respect of rules made by the State Government under any Uttar Pradesh Act.

(6) No student admitted to any college in contravention of the provisions of this section shall be permitted to take up any examination conducted by the University, and the ViceChancellor shall have the power to cancel any admission made in such contravention.'

Sub-section (4) of this Section lays down that Admission Committee of the University may issue direction in respect of criteria or method of admissions to constituent colleges maintained by the State Government and also affiliated or associated colleges and the directions of the University are binding on such colleges.

Over and above this provision, Sub-section (5)(b) provides that notwithstanding anything contained in any other provision of this Act, the admission, inter alia, to courses of instruction for degrees in education, shall be regulated by such orders as the State Government, may by notification, make in that behalf.

The State Government came out with the U.P. State Universities (Regulation of Admission to Courses of Instruction for Degree in Education in Affiliated, Associated and Constituent Colleges) Order, 1987 (in short Regulation 1987) which was amended from time to time. 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, held the field during the relevant years. This arrangement is not in conflict with the regulations either framed by NCTE or under Section 28 of U.P. State Universities Act, 1973. (vide Tuples Societies)

The State by 10th amendment notified on 10 June 2015 amended Regulation 1987 which was made applicable for session 2015-17 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 counseling.

It is sought to be urged that proviso to sub-section (5)(b) prohibits the State and the affiliating Universities from regulating or interfering with rights of the minority institutions, thus, being violative of Article 30(1) of the Constitution. The submission does not warrant any merit in view of the law discussed, hereinabove, and as laid down in T.M.A. Pai. In order to maintain excellence which being in national interest, State can intervene by regulating admissions through a common centralized test; further, University is bound under Section 28 to ensure that admissions to various courses for which affiliation is granted to an institution, be it minority or non-minority, is based on merit and regulations thereof is followed strictly. In the event of the institution bypassing the regulations pertaining to admission would be subjected to penal consequence. The University, in the circumstances, would be justified in refusing to take the B.Ed. examination of such students in view of Subsection (6) which, in my opinion, certainly does not tantamount to interfering with the autonomy of the minority institution regarding their right to establish and administer educational institution. Proviso to sub-section (5)(b) provides nothing more than that is provided under Article 30(1) which merely protects the autonomy of the institution to manage its affairs and to appoint teachers, but in view of T.M.A. Pai petitioner institution being a technical/professional institution duly affiliated would be subject to the regulation framed by the University governing admissions, to the B.Ed. course. The right of the minority institution is not encroached but has a discretion to admit students of its choice from the pool of students who have participated in the centralized test (CET).

Having recognised education as an 'occupation' and giving the status of a fundamental right, four specific rights which encompass right to occupation, namely, (i) a right to admit students; (ii) a right to set up a reasonable fee structure; (iii) a right to appoint staff (teaching and non-teaching); and (iv) a right to take action if there is dereliction of duty on the part of any employees. In view of the aforesaid recognition of the right to admit the students and a right to set up a reasonable fee structure treating as part of occupation which is recognised as fundamental right under Article 19(1)(g) of the Constitution. The second facet of this issue, viz. – what is the scope of this right of occupation?

This right to carry on the occupation that of education, is not put at par with other occupations or business activities or even other professions. It is a category apart which was carved out in T.M.A. Pai. Thus, those who establish and are managing the educational institutions are not expected to indulge in profiteering or commercialize this noble activity. Keeping this objective in mind, the Court in TMA Pai did not give complete freedom to the educational institutions in respect of right to admit the students and also with regard to fixation of fee which is subject to regulation equally applicable on minority institution.

The plea of 'absolute right to occupation' was rejected by the Supreme Court in Modern Dental College and Research Centre and others Versus State of M.P. and others(2016 Law Suit (SC) 432) (Modern Dental). The Court held that a fundamental right is not without measure of control and it will always be subject to reasonable restriction which the State is duty bound to impose. The court in para 49 held as follows:

'49. The claim of absolute 'right to occupation' which the appellants have raised on the basis of T.M.A. Pai, P.A. Inamdar cases is not sustainable. In T.M.A. Pai and P.A. Inamdar, no unfettered right was granted to private unaided educational institutions to carry on trade and business without being restricted by statutory regulations enacted by the competent legislature. A fundamental right is not without measure or control and it will always be subject to reasonable restriction which the State is duly bound to impose in the larger public interest.'

Division Bench in U.P. Unaided Medical Colleges Welfare Association, Bareilly Versus Union of India Through Secretary and another (Misc. Bench No. 20575 of 2016 decided on 15 September 2016), pertaining to admissions to MBBS/BDS course based on NEET 2016 while answering the question posed before the Court in respect of minority institutions, held that minority institutions shall be allowed to admit students of their choice/community based on the centralized counseling held by the State on the basis of NEET 2016. The plea that minority institutions have absolute right to admit students by adopting a mechanism of their choice was rejected. Regulations/Government Order applied uniformly to all the institutions imparting the same course does not violate Article 30.

A plea was raised by the appellants that by exercising the power to frame regulations, the State could not usurp the very function of conducting this admission test by the educational institutions. It was argued that it only meant that such a CET is to be conducted by the educational institutions themselves and the Government could only frame the Regulations to regulate such admission tests to be conducted by the educational institutions and could not take away the function of holding the CET.

This argument has to be rejected in view of the unambiguous and categorical interpretation given by the Supreme Court in P.A. Inamdar with respect to certain observations, particularly in paragraph 68 in T.M.A. Pai and this Court in Tuples Societies. But the said right could be regulated to ensure maintenance of proper academic standards, atmosphere and infrastructure. For admission, merit must play an important role. The State or the University could require private unaided institution including minority institution to provide for merit based selection while giving sufficient discretion in admitting students. (Vide- Modern Dental).

The regulatory measures aimed at protecting the students community as a whole as also the minority themselves in maintaining required standards of professional education on non-exploitative terms. This did not violate Article 30(1) or Article 19 (1)(g). It was observed in PA Inamdar and Modern Dental that unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb. To achieve these objects it is open to the State to introduce regulatory measures. I am unable to accept the submissions that the State could intervene only after proving that merit was compromised or capitation fee was being charged. As observed in the earlier decisions of the Supreme Court, post-audit measures would not meet the regulatory requirements.

The Private Institution Act, 2006, provides for the regulation of admission and fixation of fee in private professional educational institutions and the matters connected therewith or incidental thereto which is in sync with TMA Pai. However, section 2 makes applicable the Act upon private aided or unaided professional educational institutions but excludes minority institutions. Section 2 exempts minority institution from the application of the Act, which is in teeth of the law stated in T.M.A. Pai. The decision is binding upon this Court and the State. Section 2 is also in conflict with Section 28 and in particular with Sub-section 5(b) and (6) of the U.P. State University Act, 1973. Minority institutions imp

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arting technical/professional education would require affiliation. The affiliating University, as in the present case, is bound to regulate admission to the B.Ed. course or other courses through the Admission Committee and the Regulations 1987. Proviso to Sub-Section 5(b) of Section 28 does not exclude minority institution from the purview of Section 28 but only subjects the institution to regulating admissions to the course which is in sync with Article 30(1). However, Section 2 of the Private Institutions Act, 2006 would exclude such institutions from the purview of the affiliating University thus rendering Section 28 redundant for institutions engaged in graduate/postgraduate and technical/professional education. These institutions otherwise would be subject to regulations both by the State and the affiliating University. Any legislation providing for regulation for admission and fee determination, is in the interest of the student community and such an enactment/government order would have to be judged from the point of view of the students. As already held that education at higher level constitutes creation of national wealth, therefore, merit is the sole consideration. Both minority, as well as, non-minority institutions would, therefore, be subject to regulations pertaining to admission and fee regulation, therefore, exempting minority institutions under Section 2 as already held in TMA Pai and subsequent judgments is not in the national interest. In Cellular Operators Association of India vs. Telecom Regulatory Authority of India (AIR 2016 SC 2336) AIR 2016 SC 2336 Supreme Court reiterated the parameters of judicial review of legislation including subordinate legislation. Where the legislation is in violation of fundamental right guaranteed under the Constitution of India; violates any provision of the Constitution of India; repugnancy to the laws of the land i.e. any enactment and/ or is manifest arbitrariness/unreasonableness may declare the provision or enactment as ultra vires. Under Article 19(6) of the Constitution, the State has to conform to two separate and independent tests if it is to pass constitutional muster-the restriction on the fundamental rights must first be a reasonable restriction and secondly, it should also be in the interest of general public (students) (Chintaman Rao vs. State of Madhya Pradesh (AIR 1951 SC 118). As held herein above the rights of the minority institutions by regulating admissions and fee determination does not encroach upon their right guaranteed under Article 19(1)(g) and Article 30(1), therefore, the minority institutions could not have been excluded from the purview of the Private Institutions Act, 2006. Technical professional institutions are a class apart which includes minority institutions, therefore, excluding the minority institution from the purview of the Act would not be in the interest of the student community, thus, not in the national/public interest. In the circumstances, Section 2 of Private Institution Act, 2006 to the extent it excludes minority institution from the purview of the Act becomes unsustainable and ultra vires of Article 14 and 28(5)(b) and sub-section (6) of the State Universities Act, 1973. Having due regard to the law and reasons stated herein above, the answers to the question posed is 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. A. No Q.2. Whether single window system i.e. CET followed by centralized 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. A. No. 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. A. No. 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; A. No. Q.5. Whether counselling university is bound to provide cent percent students to the institutions. A. No. 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 vs. The Dean Velammal Medical College Hospital and Research Institute and others (2016 (1) SCC 662) wherein, Supreme Court relied on Chandigarh Administration and another vs. 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. Accordingly, in the facts of the present case, the students were wrongly admitted and have been deprived by the University from taking their B.Ed. examination are entitled to compensation, which is assessed at Rs. 3 lac payable to each student by the delinquent institutions within three months from date, failing which the affiliating University shall ensure that the damages/compensation is received by the students. In the event of non-compliance, it will be open for the University to proceed in accordance with law against the institutes including withholding affiliation after due notice. The writ petition being devoid of merit is, accordingly, dismissed.
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