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CASE NO.: Writ Petition (civil)  350 of 1993

PETITIONER: Islamic Academy of Education and another

RESPONDENT: Vs. State of Karnataka and others

DATE OF JUDGMENT: 14/08/2003

BENCH: CJI V. N. KHARE, S. N. VARIAVA, K. G. BALAKRISHNAN & ARIJIT  PASAYAT.

JUDGMENT: JUDGMENT

(With S.L.P.(Civil) Nos. 11286/2003,  11391/2003, 11189-11195/2003,  W.P(Civil) Nos. 355/1993, 174/2003, T.P.(Civil) No. 286-288/2003,  S.L.P.(Civil) Nos. 3465-3466/2003, 3942-3943/2003, 4002-4003/2003,  9253-9254/2003, 10561/2003, W.P.(Civil) Nos. 261/2003, 275/2003,  280/2003,  289/2003)      V. N.  KHARE,  CJI for himself and for Variava,  Balakrishnan  and Pasayat, JJ.

On 31st October, 2002 eleven Judge Bench of this Court delivered the Judgment  in the case of T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002 (8)  SCC 481). A brief history as to how a eleven Judge Bench of this Court came to decide  this case is set out in para 3 of the judgment, which reads as under:

"3. The hearing of these cases has had a chequered history. Writ Petition  No. 350 of 1993 filed by the Islamic Academy of Education and  connected petitions were placed before a Bench of five Judges. As the  Bench was prima facie of the opinion that Article 30 did not clothe a  minority educational institution with the power to adopt its own method of  selection and the correctness of the decision of this Court in St Stephens  College versus University of Delhi was doubted, it was directed that the  questions that arose should be authoritatively answered by a larger Bench.  These cases were then placed before a bench of seven Judges. The  questions framed were recast and on 6-2-1997, the Court directed that the  matter be placed before a Bench of at least eleven Judges, as it was felt  that in view of the Forty-second Amendment to the Constitution, whereby  "education" had been included in Entry 25 of List III of Seventh Schedule,  the question of who would be regarded as a "minority" was required to be  considered because the earlier case-law related to the pre-amendment era,  when education was only in the State Listâ\200¦â\200¦â\200¦â\200¦â\200¦."   

After the Judgment was delivered, on 31st October 2002, the Union of India, various  State Governments and the educational institutions understood the majority judgment in  different perspectives. Different statutes/regulations were enacted/framed by different  State Governments. These led to litigations in several Courts. Interim orders passed  therein have been assailed before this Court. When these matters came up before a Bench  of this Court, the parties to the writ petitions  and special leave petitions attempted to  interpret the majority decision in their own way as suited to them and therefore at their  request all these matters were placed before a Bench of five Judges.  It is under these  circumstances that this Bench has been constituted so that doubts/anomalies, if any,  could be clarified.           Most of the petitioners/applicants before us are unaided professional educational  institutions (both minority and non-minority). On behalf of the petitioners/applicants it  was submitted that the answers given to the questions, as set out at the end of the  majority Judgment, lay down the true ratio of the Judgment. It was submitted that any

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observation made in the body of the judgment had to be read in the context of the  answers given. We are unable to accept this submission. The answers to the questions, in  the majority Judgment in Pai’s case, are merely  a brief summation of the ratio laid down  in the Judgment.  The ratio decidendi of a Judgment has to be found out only on reading   the entire  Judgment.  In fact, the ratio of the judgment  is what is set out in the judgmen t  itself. The answer to the question  would necessarily have to be read in the context  of  what is set out in the judgment and not in isolation.  In case of any doubt as regards any  observations, reasons  and principles, the other part of the judgment has to be looked  into.  By reading a line here and there from the judgment, one cannot find out the entire   ratio decidendi of the judgment. We, therefore, while giving  our clarifications, are  deposed to look into other parts of the Judgment other than those portions which may be   relied upon.          Very briefly stated the other submissions were as follows:          On behalf of the petitioners/applicants it was also submitted that fixation of  percentages of seats that could be filled in  the unaided professional colleges both  minority and non minority by the management, as done by various State Governments,  was impermissible. It is further submitted that the private unaided professional  educational institutions, had been given complete autonomy not only as regards the  admission of students but also as regards the determination of their own fee structure. It  was submitted that these institutions could fix their own fee structure, which could  include a reasonable revenue surplus for purposes of development of education and  expansion of the institution, and that so long as there was no profiteering or charging of  capitation fees, there could be no interference by the Government. It was submitted that  the right to admit students is an essential facet of the right to administer, and so long as   admission to the unaided educational institutions is on a fair and transparent basis and on  the basis of merit, government cannot interfere. It was submitted that these institutions  are entitled to fill up all their seats by adopting/evolving a rational and transparent  method of admission which ensures that merit is adequately taken care of. It was  submitted that in any event the institutions should be given a choice and be allowed to  admit students on basis of the ICSC or SSC or other such examination. It was also  suggested that educational institutions of a particular type may be permitted to associate  themselves for the purposes of holding a common entrance test in each State. On behalf  of minority institutions, it was submitted that they are entitled to fill up all the seats w ith  students of their own community/language. On behalf of non-minority institutions, it was  submitted that they also had a fundamental right to establish and administer educational  institutions and that the majority Judgment puts them on a par with the minority  institutes.           As against this, on behalf of the Union of India, various State Governments and  some students, who sought to intervene, it was submitted that the right to set up and  administer an educational institution was not an absolute right, and this right is subject t o  reasonable restrictions and that this right is subject (even in respect of minority  institutions) to national interest. It was submitted that imparting education was a  State  function but, due to resources crunch, the States were not in a position to establish  sufficient number of educational institutions. It was submitted that, because of such  resources crunch, the States were permitting private educational institutions to perform  State functions. It was submitted that the Union of India, the States, Universities had  statutory rights to fix the fees and to regulate admission of students in order to ensure (a )  that there was no profiteering; (b) capitation fees were not charged; (c) admissions were  based on principles of merit and (d) to ensure that persons from the backward classes and  poorer sections of society also had an opportunity to receive education, particularly,  professional education. It was submitted that if these educational institutions were  permitted to have their own tests for admission, the students would be put to undue  harassment and hardship inasmuch as they would have to pay for application forms in  various colleges and appear for tests in various colleges. It was pointed out that even if  each institution charged Rs. 500 to Rs. 1000  a student would ultimately have to pay a  large amount by way of application fees as, in the absence of a common entrance test and  admission procedure the students would have to apply to a number of colleges. It is

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submitted that the students would also have to spend for transport from and to each  college and may find it difficult, if not impossible to travel, from one college to another,   to appear in all the tests. It was submitted that unless it was ensured that colleges admit  students strictly on the basis of merit at a common entrance test, it would be impossible  to ensure that capitation fees were not charged and that there was no profiteering. It was  pointed out that some colleges do not even issue admission forms unless and until the  student agrees to pay a hefty sum. It was submitted that the majority Judgment clarified  that Article 30 had been enacted not for the purposes of giving any special right or  privileges to the minority educational institutions, but to ensure that the minorities had  equal rights with the majority. It was submitted that minority educational institutions  cannot claim any higher or better rights than those enjoyed by the non-minority  educational institutions.          Both sides relied upon various passages from the majority judgment in support of  the respective submissions. These passages are reproduced hereinafter.  

In view of the rival submissions the following questions arise for consideration: 1) whether the educational institutions are entitled to fix their own fee structure; 2) whether minority and non minority educational institutions stand on the same     footing and have the same rights; 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. 1. So far as the first question is concerned, in our view the majority judgment is very  clear. There can be no fixing of a rigid fee structure by the government. Each institute  must have the freedom to fix its own fee structure taking into consideration the need to  generate funds to run the institution and to provide facilities necessary for the benefit of   the students. They must also be able to generate surplus  which must be used for the  betterment and growth of that educational institution. In paragraph 56 of the judgment it  has been categorically laid down that the decision on the fees to be charged must  necessarily be left to the private educational institutions that do not seek and which are  not dependent upon any funds from the Government. Each institute will be entitled to  have its own fee structure. The fee structure for each institute must be fixed keeping in  mind the infrastructure and facilities available, the investments made, salaries paid to the   teachers and staff, future plans for expansion and/or betterment of the institution etc. Of  course there can be no profiteering and capitation fees cannot be charged. It thus needs to  be emphasized that as per the majority judgment imparting of education is essentially  charitable in nature. Thus the surplus/profit that can be generated must be only for the  benefit/use of that educational institution. Profits/surplus cannot be diverted for any othe r  use or purpose and cannot be used for personal gain or for any other business or  enterprise.  As, at present, there are statutes/regulations which govern the fixation of fee s  and as this Court has not yet considered the validity of those statutes/regulations, we  direct that in order to give effect to the judgment in TMA PAI’s case  the respective State  Governments concerned authority shall set up, in each State, a committee headed by a  retired High Court judge who shall be nominated by the Chief Justice of that State. The  other member, who shall be nominated by the Judge, should be a Chartered Accountant  of repute. A representative of the Medical Council of India (in short ’MCI’) or the All  India Council for Technical Education (in short ’AICTE’), depending on the type of  institution, shall also be a member. The Secretary of the State Government in charge of  Medical Education or Technical Education, as the case may be, shall be a member and  Secretary of the Committee. The Committee should be free to nominate/co-opt another  independent person of repute, so that total number of members of the Committee shall  not exceed 5. Each educational Institute must place before this Committee, well in  advance of the academic year, its proposed fee structure. Along with the proposed fee  structure all relevant documents and books of accounts must also be produced before the  committee for their scrutiny. The Committee shall  then decide whether the fees proposed  by that institute are justified and are not profiteering or charging capitation fee.. The  Committee will be at liberty to approve the fee structure or to propose some other fee

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which can be charged by the institute. The fee fixed by the committee shall  be binding  for a period of three years, at the end of which period the institute would be at liberty to   apply for revision. Once fees are fixed by the Committee, the institute cannot charge  either directly or indirectly any other amount over and above the amount fixed as fees. If  any other amount is charged, under any other head or guise e.g. donations the same  would amount to charging of capitation fee. The Governments/appropriate authorities   should consider framing appropriate regulations, if not already framed,  whereunder if it  is found that an institution is charging capitation fees or profiteering that institution ca n  be appropriately penalised and also face the prospect of losing its recognition/affiliation. It must be mentioned that during arguments it was pointed out to us that some  educational institutions are collecting, in advance, the fees for the entire course i.e. for  all  the years. It was submitted that this was done because the institute was not sure whether  the student would leave the institute midstream. It was submitted that if the student left  the course in midstream then for the remaining years the seat would lie vacant and the  institute would suffer. In our view an educational institution can only charge prescribed  fees for one semester/year. If an institution feels that any particular student may leave in   midstream then, at the highest, it may require that student to give a bond/bank guarantee  that the balance fees for the whole course would be received by the institute even if the  student left in  midstream. If any educational institution has collected fees in advance,  only the fees of that semester/year can be used by the institution. The balance fees must  be kept invested in fixed deposits in a nationalised bank.  As and when fees fall due for a  semester/year only the fees falling due for that  semester/year can be withdrawn by the  institution. The rest must continue to remain deposited till such time that they fall due. A t  the end of the course the interest earned on these deposits must be paid to the student  from whom the fees were collected in advance.

Question No. 2         The next question for consideration is whether minority and non minority  educational institutions stand on the same footing and have the same rights under the  Judgment. In support of the contention that the minority and non minority educational  institutions had the same rights  reliance was placed upon paragraphs 138 and 139 of the  Judgment. These read as follows:

"138.  As we look at it, Article 30(1) is a sort of guarantee or assurance to  the linguistic and religious minority institutions of their right to establish  and administer educational institutions of their choice.  Secularism and  equality being two of the basic features of the Constitution, Article 30(1)  ensures protection to the linguistic and religious minorities; thereby  preserving the secularism of the country.  Furthermore, the principles of  equality must necessarily apply to the enjoyment of such rights.  No law  can be framed that will discriminate against such minorities with regard to  the establishment and administration of educational institutions vis-Ã -vis  other educational institutions.  Any law or rule or regulation that would  put the educational institutions run by the minorities at a disadvantage  when compared to the institutions run by the others will have to be struck  down.  At the same time, there also cannot be any reverse discrimination.   It was observed in St. Xaviers College case, at page 192, that "the whole  object of conferring the right on minorities under Article 30 is to ensure  that there will be equality between the majority and the minority.  If the  minorities do not have such special protection, they will be denied  equality."  In other words, the essence of Article 30(1) is to ensure equal  treatment between the majority and the minority institutions.  No one type  or category of institution should be disfavoured or, for that matter receive  more favourable treatment than  another.  Laws of the land, including rules  and regulations, must apply equally to the majority institutions as well as  to the minority institutions.  The  minority institutions must be allowed to  do what the non-minority institutions are permitted to do."

"139    Like any other private unaided institutions, similar unaided  educational institutions administered by linguistic or religious minorities

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are assured maximum autonomy in relation thereto; e.g., method of  recruitment of teachers, charging of fees and admission of students.  They  will have to comply with the condition of recognition, which cannot be  such as to whittle down the right under Article 30."  

Undoubtedly at first blush it does appear that these paragraphs equate both types of  educational institutions. However on a careful reading of these paragraphs it is evident  that the essence of what has been laid down is that the minority educational institutions  have a guarantee or assurance to establish and administer educational institutions of their  choice. These paragraphs merely provide that laws, rules and regulations cannot be such  that they favour majority institutions over minority institutions. We do not read these  paragraphs to mean that non minority educational institutions would have the same rights  as those conferred on minority educational institutions by Article 30 of the Constitution  of India. Non minority educational institutions do not have the protection of Article 30.  Thus, in certain matters they cannot and do not stand on similar footing as minority  educational institutions. Even though the principle behind Article 30 is to ensure that the  minorities are protected and are given an equal treatment yet the special right given under  Article 30 does give them certain advantages. Just to take a few examples, the  Government may decide to nationalise education. In that case it may be enacted that  private educational institutions will not be permitted. Non minority educational  institutions may become bound by such an enactment. However, the right given under  Article 30 to minorities cannot be done away with and the minorities will still have a  fundamental right to establish and administer educational institutions of their choice.  Similarly even though the government may have a right to take over management of a  non minority educational institution the management of a minority educational institution  cannot be taken over because of the protection given under Article 30.  Of course we  must not be understood to mean that even in national interest a minority institute cannot  be closed down. Further minority educational institutions have preferential right to admit  students of their own community/language. No such rights exist so far as non minority  educational institutions are concerned.  

Questions Nos. 3 and 4         Questions 3 and 4 pertain to private unaided professional colleges. Thus all  observations in answer to questions 3 and 4 are therefore confined to such educational  institutions.           In order to answer the third and fourth questions it is necessary to see the manner  in which the majority judgment is framed and to consider certain paragraphs of the  judgment. The majority judgment considered various aspects under different heads. The  3rd head is "In case of private institutions, can there be government regulations and,  if so, to what extent?". This is further divided into four subheadings viz. "Private  unaided non minority educational institutions"; "Private unaided professional  colleges"; "Private aided professional institutions (non minority)" and "Other aided  institutions". The paragraph which has been strongly relied upon is paragraph 68 which  is under the sub-heading "Private unaided professional colleges". The said paragraph  reads as under: "68. It would be unfair to apply the same rules and regulations  regulating admission to both aided and unaided professional  institutions.  It must be borne in mind that unaided professional  institutions are entitled to autonomy in their administration while,  at the same time, they do not forgo or discard the principle of  merit.  It would, therefore, be permissible for the university or the  government, at the time of granting recognition, to require a  private unaided institution to provide for merit-based selection  while, at the same time, giving the Management sufficient  discretion in admitting students.  This can be done through  various methods.  For instance, a certain percentage of the seats  can be reserved for admission by the Management out of those  students who have passed the common entrance test held by itself  or by the State/University and have     applied to the college  concerned for admission, while the rest of the seats may be filled  up on the basis of counseling by the state agency.  This will  incidentally take care of poorer and backward sections of the  society.  The prescription of percentage for this purpose has to be  done by the government according to the local needs and different

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percentages can be fixed for minority unaided and non-minority  unaided and professional colleges.  The same principles may be  applied to other non-professional but unaided educational  institutions viz., graduation and post graduation non-professional  colleges or institutes."  

Reliance was also placed on paragraphs 58 and 59 which read as follows:

"58.    For admission into any professional institution, merit must  play an important role.  While it may be normally possible to  judge the merit of the applicant who seeks admission into a  school, while seeking admission to a professional institution and  to become a competent professional, it is necessary that  meritorious candidates are not unfairly treated or put at a  disadvantage by preferences shown to less meritorious but more  influential applicants.  Excellence in professional education  would require that greater emphasis be laid on the merit of a  student seeking admission.  Appropriate regulations for this  purpose may be made keeping in view the other observations  made in this judgment in the context of admissions to unaided  institutions."

"59.    Merit is usually determined for admission to professional  and higher education colleges, by either the marks that the student  obtains at the qualifying examination or school leaving certificate  stage followed by the interview, or by a common entrance test  conducted by the institution, or in the case of professional  colleges, by government agencies."    Based on the above paragraphs it had been submitted, on behalf of the Union of India,  various State Governments and students that the majority Judgment makes a clear  distinction between professional educational institutions (both minority and non  minority) and other educational institutions i.e. schools and undergraduate colleges. The  submission was that in professional institutions merit had to play an important role and  that excellence in professional education required that for purposes of admission merit is  determined by Government agencies. It is submitted that paragraph 68 provides that in  unaided professional colleges only a "certain" percentage of seats can be reserved for  admission by the management. It is submitted that the  said  paragraph  provides that it is  permissible for the University or the Government to require a private unaided  professional institute to provide for a merit based selection. It was submitted that  paragraph 68, read with paragraph 59, lays down  that in unaided professional colleges  merit is to be determined by a common entrance test conducted by Government agencies.          Paragraph 68 of the majority judgment in Pai’s case can be split into seven parts :-         Firstly, it deals with the unaided minority or non-minority professional colleges.         Secondly, it will be unfair to apply the rule and regulations framed by the State  Government as regards the government aided professional colleges to the unaided  professional colleges.          Thirdly, the unaided professional institutions are entitled to autonomy in their  administration; while at the same time they should not forego or discard the principles of  merit.         Fourthly, it is permissible  for the university or the Government at the time of  granting  recognition to require  an  unaided institution to provide  for merit based  admission while at the same time  giving the management sufficient discretion in  admitting students.         Fifthly, for unaided non-minority professional colleges certain percentage of seats    can be reserved for admission by the  management  out of those students who have  passed the common test held by itself or by the State/University and for applying to the  college/university for admission, while the rest of the seat may be filled up on the basis o f  counseling by the State agency.         Sixthly, the provisions for poorer and backward sections of the society in unaided  professional colleges are also to be provided for.         Seventhly, the prescription for percentage of seats in unaided professional

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colleges has to be done by the government according to the local needs.  A different  percentage of seats for admission can be fixed for minority unaided and non-minority  unaided professional colleges.          Undoubtedly the majority judgment makes a distinction between private unaided  professional colleges and other educational institutions i.e. schools and undergraduate  colleges. The subheading "Private unaided professional colleges" includes both  minority as well as non minority professional colleges. This is also clear from a reading  of paragraph 68. It appears to us that this distinction has been made (between private  unaided professional colleges and other educational institutions) as the Judgment  recognises that it is in national interest to have good and efficient professionals. The  Judgment provides that national interest would prevail, even over minority rights. It is for   this reason that in professional colleges, both minority and non-minority, merit has been  made the criteria for admission. However a proper reading, of paragraph 68, indicates  that a further distinction has been made between minority and non minority professional  colleges. It is provided that in cases of non minority professional colleges "a certain  percentage of seats" can be reserved for admission by the management. The rest have to  be filled up on bases of counseling by State agencies. The prescription of percentage has  to be done by the Government according to local needs. Keeping this in mind provisions  have to be made for the poorer and backward sections of the society. It must be  remembered that, so far as  medical colleges are concerned, an essentiality certificate has  to be obtained before the college can be set up. It cannot be denied that whilst issuing the   essentiality certificate the respective State Governments take into consideration the local  needs. These aspects have been highlighted in a recent decision of this Court in State of  Maharashtra vs. Medical Association and others [2002 (1) SCC 589]. Whilst granting the  essentiality certificate the State Government undertakes to take over the obligations of the   private educational institution in the event of that institution becoming incapable of  setting of the institution or imparting education therein. A reading of paragraphs 59 and  68 shows  that in non minority professional colleges admission of students, other than the  percentage given to the management, can only be on the basis of merit as per the  common entrance tests conducted by government agencies. The manner in which the  percentage given to the management can be filled in is set out hereinafter.          Paragraph 68  provides that a different percentage can be prescribed for unaided  minority institutions. That the same yardstick cannot be applied to both minority and non  minority professional colleges is also clear from the fact that  paragraph 68 also falls  under main heading "In case of private institutions, can there be government  regulations and, if so, to what extent?".  Paragraph 47,  which is one of the first  paragraph under this heading, inter-alia provides as follows:

       "It is appropriate to first deal with the case of private  unaided institutions and private aided institutions that are not  administer the by linguistic or religious minorities. Regulations  that can be framed relating to minority institutions will be  considered while examining the merit an effect of Article 30 of  the Constitution."

Whilst discussing Article 30 under heading "To what extent the rights of aided private  minority institutions to administer can be regulated"  reliance has been placed, in the  majority Judgment,  on previous judgments in the cases of Re Kerala Education Bill (AIR  1958 Supreme Court page 956); Rev Sidhajbhai V State of Bombay (1963 (3) SCR  page  837); Rev Father Proost V State of Bihar (AIR 1969 Supreme Court page 465); State of  Kerala V Very Rev Mother Provincial (1970 2 SCC page 417); Ahmedabad St Xaviers  College Society V State of Gujarat (1974 (1) SCC page 717). All these cases have  recognised and upheld the rights of minorities under Article 30. These cases have held  that in the guise of regulations, rights under Article 30 cannot be abrogated. It has been  held, even in respect of aided minority institutions that they must have full autonomy in  administration of that institution. It has been held that the right to administer includes t he  right to admit students of their own community/language. Thus an unaided minority  professional college cannot be in a worse position than an aided minority professional

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college.   It is for this reason that paragraph 68 provides that a different percentage can  be  fixed for unaided minority  professional colleges.  The expression "different percentage  for minority professional institutions" carries different meaning than the expression  "certain percentage for unaided professional colleges." In fixing percentage for unaided  minority professional colleges the State must keep in mind, apart from local needs, the  interest/need of that community in the State. The need of that community, in the State,  would be paramount vis-a- vis the local needs.

It must be clarified that a minority professional college can admit, in their  management quota, a student of their own community/language in preference to a student  of another community even though that other student  is more meritorious. However,   whilst selecting/admitting students  of their community/language the inter-se  merit of  those students cannot be ignored. In other words whilst selecting/admitting  students of  their own community/language they cannot ignore the inter-se merit amongst students of  their community/language. Admission, even of members of their community/language,  must strictly be on the basis of merit except that in case of their own students it has to b e  merit inter-se those students only.  Further if the seats cannot be filled up from members  of their community/language, then the other students can  be admitted only on the basis  of merit based on a common entrance test conducted by government agencies.  

That brings us the question as to how the management of both minority and non  minority professional colleges can admit students in the quota allotted to them.  Undoubtedly the majority Judgment has kept in mind the sad reality that there are a large  number of professional colleges which indulge in profiteering and/or charging of   capitation fees. It is for this reason that the majority Judgment provides that in  professional colleges admission must be on the basis of merit. As has been rightly  submitted it is impossible to control profiteering/charging of capitation fees unless it is  ensured that admission is on the basis of merit. Also as has been rightly pointed out if a  student is required to appear at more than one entrance test it would lead to great  hardship. The application fees charged by each institute, even though they  may be only  Rs. 500 to Rs. 1000 for each institute, would impose a heavy burden on the students who  will necessarily have to apply to a number of colleges. Further as has been rightly pointed  out,  students would have to arrange for transport from and to and stay at various places if    they have to appear for individual tests conducted by each College. If a student has to go  for test to each institute it is possible that he/she may not be able to reach, in time, the   venue of a test of a particular institute. In our view what is necessary is a practical  approach keeping in mind the need for a merit based selection. Paragraph 68 provides  that admission by the management can be by a common entrance test held by  "itself or  by State/University". The words "common entrance test" clearly indicate that each  institute cannot hold a separate test. We thus hold that  the management could select  students, of their quota, either on the basis of the common entrance tests conducted by the  State or on the basis of a common entrance test to be conducted by an association of all  colleges of a particular type in that State e.g. medical, engineering or technical etc. The  common entrance test, held by the association, must be  for admission to all colleges of  that type in the State. The option of choosing, between either of these tests, must be  exercised before issuing of prospectus and after intimation to the concerned authority and  the Committee set up hereinafter. If any professional college chooses not to admit from  the common entrance test conducted by the association then that college must necessarily  admit from the common entrance test conducted by the State. After holding the common  entrance test and declaration of results the merit list will immediately be placed on the  notice board of all colleges which have chosen to admit as per this test. A copy of the  merit list will also be forthwith sent to the concerned authority and the Committee.  Selection of students must then be strictly on basis of  merit as per that merit list. Of  course, as indicated earlier, minority colleges will be entitled to fill up their quota with   their own students  on basis of inter-se merit amongst those students.  The list of students   admitted, along with the rank number obtained by the student, the fees collected and all  such particulars and details as may be required by the concerned authority or the  Committee must be submitted to them forthwith. The question paper and the answer

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papers must be preserved for such period as the concerned authority or Committee may  indicate. If it is found that any student has been admitted de-hors merit penalty can be  imposed on that institute and in appropriate cases recognition/affiliation may also be  withdrawn.  

At this juncture it  is brought to our notice that several institutions, have  since  long, had their own admission procedure and that even though they have been admitting  only students of their own community no finger has ever been raised against them and no  complaints have been made regarding fairness or transparency of the admission  procedure adopted  by them. These institutions submit that they have special features and  that they stand on a different footing from other minority non-aided professional  institutions. It is submitted that  their  cases are not based only on  the right flowing fr om  Article 30(1)  but in addition they have some special features which requires that they be  permitted to admit in the manner they have been doing for all these years.  A reference is  made to few such institutions i.e. Christian Medical College, Vellore, St. Johns Hospital,  Islamic Academy of Education etc . The claim of these institutions was disputed.  However  we do not think it necessary to go into those questions.  We leave it open to    institutions which have been established and who have had their own admission  procedure for, at least, the last 25 years to apply to the Committee set out hereinafter.

Lastly, it must be mentioned that it was urged by learned counsel for the  appellant that paragraph 68 of the majority judgment only permits University/State to  provide for merit based selection at the time of granting recognition/affiliation.  It was  also submitted that once recognition/affiliation is granted to unaided professional  colleges, such a stipulation cannot be provided subsequently.  We are unable to accept  this submission.  Such a provision can be made at the time of granting  recognition/affiliation as well as subsequently after the grant of such  recognition/affiliation.

We now direct that the respective State Government do appoint a permanent  Committee which will ensure that the tests conducted by the association of colleges is  fair and transparent. For each State a separate Committee shall be formed. The  Committee would be headed by a retired   Judge of the High Court. The Judge to be  nominated by the Chief Justice of that State.   The other member, to be nominated by the  Judge,  would be  a doctor or an engineer of eminence  (depending on whether the  institution is medical or engineering/technical).  The Secretary of the State in charge of  Medical or Technical Education, as the case may be, shall also be a member and act as  Secretary of the Committee.  The Committee will be free to nominate/co-opt an  independent person of repute in the field of education as well as one of the Vice  Chancellors of  University in that State so that the total number of persons on the  Committee do not exceed five. The Committee shall have powers to oversee the tests to  be conducted by the association. This would include the power  to call for the proposed  question paper/s, to know the names of the paper setters and examiners and  to check the  method adopted to ensure papers are not leaked. The Committee shall supervise and  ensure that the test is conducted in a fair and transparent manner. The Committee shall  have power to permit an institution, which has been established  and which has been  permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt it s  own admission procedure and if the Committee feels that the needs of such an institute  are genuine, to admit, students of their community,  in excess of the quota  allotted to  them by the State Government. Before exempting any institute or varying in percentage  of quota fixed by the State, the State Government must be heard before the Committee.   It is clarified that different percentage of quota for students to be admitted by the  management in each minority or non-minority unaided professional college/s shall be  separately fixed on the basis of their need by the respective State Governments and in  case of any dispute as regards fixation of percentage of quota, it will be open to the  management to approach the Committee. It is also clarified that no institute, which has  not been established and which has not followed its own admission procedure for the  last, at least, 25 years, shall be permitted to apply for or be granted exemption from  admitting students in the manner set out hereinabove.  

Our direction for setting up two sets of Committees in the States has been passed  under Article 142 of the Constitution of India which shall remain in force till appropriate  legislation is enacted by the Parliament.  The expenses incurred on the setting up of such

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Committees shall be borne by each State.  The infrastructural needs and provision for  allowance and remuneration of the Chairman and other members of the Committee shall  also be borne by the respective State Government.  

       So far as the year 2003-2004 is concerned, time is running out as the outer time  limit for admission is fast approaching or has gone. To meet the urgent situation without  going into the issues involved in the various petitions/applications, we direct that the  seats be filled up by the institution and the State Governments in the ratio 50:50.   However, if by any interim order, this Court has permitted any institution to fill up a  higher percentage of seats and the seats have been filled up accordingly, the same  shall not be disturbed. It is made clear that due to  the time constraint this arrangement  has been made, without deciding the contentious issue involved in various pending cases.           With these clarifications we now direct that all the matters be placed before the  regular benches for disposal on merits.

All Interlocutory applications as regard interim matters stand disposed of.