Dau Dayal Mahila (P.G.) College ... vs State Of U.P.Thro.Secy.Higher ...
2013 Latest Caselaw 4960 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 482 of 2013
 

 
Appellant :- Dau Dayal Mahila (P.G.) College Firozabad Thro.President S.K
 
Respondent :- State Of U.P.Thro.Secy.Higher Edu.Lko.& 22 Ors.3969(M/S)2011
 
Counsel for Appellant :- Shashank Bhasin
 
Counsel for Respondent :- C.S.C.,Anurag Verma,Kuldeep Pati Tripathi,Shailesh Kumar
 

 
connected with
 
Case :- SPECIAL APPEAL No. - 483 of 2013
 

 
Appellant :- Dau Dayal Mahila (P.G.) College Firozabad Thro.President S.K
 
Respondent :- State Of U.P.Thro.Secy.Higher Edu.Lko.& 22 Ors.4253(M/S)2013
 
Counsel for Appellant :- Niraj Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Anurag Verma,Shailesh Kumar
 

 
and
 

 
Case :- SPECIAL APPEAL No. - 484 of 2013
 

 
Appellant :- Deepti Jain And 18 Ors. 2697(M/S)2013
 
Respondent :- State Of U.P.Thro.Prin.Secy.Deptt.Of Higher Edu.Lko.& 3 Ors.
 
Counsel for Appellant :- Ram Raj
 
Counsel for Respondent :- C.S.C.,Anurag Verma,Prashant Chandra,Shailesh Kumar
 

 
****
 
Hon'ble Uma Nath Singh,J.

Hon'ble Mahendra Dayal,J.

Order(Oral)

We have heard learned counsel for parties and have perused the pleadings of Special Appeals.

Learned counsel for the appellants submitted that learned Single Judge placing reliance upon the ratio of the Constitution Bench Judgment of Hon'ble the Apex Court passed in the case of P.A. Inamdar and ors v. State of Maharashtra and ors, reported in (2005) 6 SCC 537, has disposed of all the writ petitions and quashed all the orders, including the letter issued by the State Government directing the University to confer degree on all such students who were admitted by the Appellant-Institutions, claiming to have the status of autonomous bodies, granted in terms of the guidelines of the University Grants Commission, called Guidelines for Autonomous Colleges during prospective plan for 2002-2007. Learned counsel for the appellants also submitted that the claim to have the status of autonomous institution also finds support in the ratio of Judgment of Hon'ble the Apex Court rendered in the case of Bharti Vidyapeeth & others v. State of Maharashtra & another, reported in (2004) 11 SCC 755, which has not been considered in Inamdar's case (Supra). Learned counsel also referred to discussions on the ratio of the Constitution Bench Judgment in Inamdar's case (Supra) in the order passed in Civil Appeal No. 4060 of 2009 and connected five other Civil Appeals (Modern Dental College & Research Centre & others v. State of Madhya Pradesh & others). The said discussions of reproduction read as:

"Despite the judgment in Islamic Academy of Education's case (supra), still there were some doubt's and the matter was again referred to Seven Judge Bench of this Court which decided it in P.A. Inamdar & Others vs. State of Maharashtra & Others (2005) 6 SCC 537.

In paragraph 153 of P.A.Inamdar's case (supra), it has been stated:

"....There are several questions which have remained unanswered and there are certain questions which have cropped up post Pai Foundation and Islamic Academy. the extent the area is left open, the Bench hearing individual cases after this judgment would find the answers"

Thus, it is evident that even in Inamdar's case (supra), it has been observed that there are still some doubts or grey areas in relation to the question of extent of State control over the Private Unaided Institutions imparting professional education.

We have gone through the aforesaid decisions with great care.

In para 91 of Inamdar's case (supra), it has been observed:

"The right to establish an educational institution, for charity or for profit, being an occupation, is protected by Article 19(1)(g) of the Constitution..."

Thus, it is clear that the right to establish and run an educational institution is a fundamental right guaranteed under Article 19(1)(g) of the Constitution. Of course, under Article 19(6) of the Constitution, reason ale restrictions can be placed on such a fundamental right, and hence we have to examine whether such restrictions are reasonable or not.

Before dealing with this issue, we may refer to some observations made in the decision of this Court in the TMA Pai Foundation case (supra).

In paragraphs 37-45 of the aforesaid decision this Court held that the decision of this Court in Unni Krishnan vs. State of A.P. (1993) 1 SCC 645 in so far as it relates to the schemes of admission and fee were not correct.

Paragraphs 35-41 of the aforesaid decision in the TMA Pai Foundation case (supra) reads as follows:

"35. It appears to us that the scheme framed by this Court and thereafter followed by the governments was one that cannot be called a reasonable restriction under Article 19(6) of the Constitution. Normally, the reason for establishing an educational institution is to impart education. The institution thus needs qualified and experienced teachers and proper facilities and equipment, all of which require capital investment. The teachers are required to be paid properly. As pointed out above, the restrictions imposed by the scheme, in Unni Krishnan's case, made it difficult, if not impossible, for the educational institutions to run efficiently. Thus, such restrictions cannot be said to be reasonable restrictions.

36.The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, inter alia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfills the conditions for grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation of recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution.

37. Unni Krishnan judgment has created certain problems, and raised thorny issues. In its anxiety to check the commercialization of education, a scheme of "free" and "payment" seats was evolved on the assumption that the economic capacity of the first 50% of admitted students would be greater than the remaining 50%, whereas the converse has proved to be the reality. In this scheme, the "payment seat" student would not only pay for his own seat, but also finance the cost of a "free seat" classmate. When one considers the Constitution Bench's earlier statement that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for the education of another, more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of the marks obtained, where the urban students always have an edge over the rural students. In practice, it has been the case of the marginally less merited rural or poor student bearing the burden of a rich and well-exposed urban student.

38.The scheme in Unni Krishnan's case has the effect of nationalizing education in respect of important features, viz., the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair or reasonable. Even in the decision in Unni Krishnan's case, it has been observed by Jeevan Reddy, J., at page 749, para 194, as follows:

"The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand - particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions - including minority educational institutions - too have a role to play."

39.That private educational institutions are a necessity becomes evident from the fact that the number of government- maintained professional has more or less remained stationary, while more private institutions have been established. For example, in the State of Karnataka there are 19 medical colleges out of which there are only 4 government-maintained medical colleges. Similarly, out of 14 Dental Colleges in Karnataka, only one has been established by the government, while in the same State, out of 51 Engineering Colleges, only 12 have been established by the government. The aforesaid figures clearly indicate the important role played by private unaided educational institutions, both minority and non-minority, which cater to the needs of students seeking professional education.

40.Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.

41.Surrendering the total process of selection to the state is unreasonable, as was sought to be done in the Unni Krishnan scheme. Apart from the decision in St. Stephen's College vs. University of Delhi [(1992) 1 SCC 558], which recognized and upheld the right of a minority aided institution to have a rational admission procedure of its own, earlier Constitution Bench decisions of this Court have, in effect, upheld such a right of an institution devising a rational manner of selecting and admitting students."

From the above observations it is clear that surrendering the total process of selection in private unaided professional institutions to the State is unreasonable and illegal. The private unaided institutions have a right to devise a rational manner of selecting and admitting students.

The aforesaid decision of the Eleven Judge Bench of this Court in TMA Pai Foundation (supra) was no doubt considered in Islamic Academy case (supra) and Inamdar's case (supra), but those latter two decisions were of smaller Benches and hence cannot be deemed to have overruled or laid down anything contrary to the Eleven Judge Bench decision in TMA Pai Foundation (supra). It is well-settled that a larger Bench decision prevails over the decision of a smaller Bench.

We may now examine some observations in Inamdar's case (supra).

In para 109 of Inamdar's case (supra), it has been observed that "it would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions". It was also observed, following the decision in TMA Pai Foundation (supra) that greater autonomy must be granted to private unaided institutions as compared to private aided institutions. The reason for this is obvious. The unaided institutions have to generate their own funds and hence they must be given more autonomy as compared to aided institutions, so that they can generate these funds.

However, this does not mean that the private unaided professional institutions have absolute autonomy in the matter. There can validly be a certain degree of State control over the private unaided professional institutions for the reason that recognition has to be granted by the State authorities and it is also the duty of the State to see that high standards of education are maintained in all professional institutions.

However, to what degree the State can interfere with respect to private unaided institutions is a matter deserving careful consideration.

In paragraph 137 of Inamdar's case (supra), it has been observed:

"......The admission procedure so adopted by a 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."

Thus, it has been held in Inamdar's case (supra) that while ordinarily admissions in private unaided professional institutions could be done by those institution or association of such unaided professional institutions, the State can interfere if the admission procedure fails to satisfy certain tests. The reason for this is obviously that the State has an interest in maintaining high standards in professional institutions.

The question, however, arises as to which is the body which can decide whether the private unaided institutions have failed to satisfy the triple tests, referred to in Inamdar's case (supra). In Inamdar's case (supra), there is no mention as to which is the body which will decide whether the private institutions have satisfied or not satisfied the triple tests, referred to in para 137 of the Inamdar's case (supra). Thus, there is a lacuna in Inamdar's case (supra).

In our view, it cannot be left to the unilateral decision of the State Government to say that the private institutions have failed to meet with the triple tests mentioned in Inamdar's case (supra), because that will be giving unbridled, absolute and unchecked power to the State Government. In our prima facie opinion, the M.P. Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (for short 'the Act of 2007'), appears to handover the entire selection process to the State Government or the agencies appointed by the State Government for under-graduate, graduate and post-graduate medical/dental colleges and fee fixation. This, in our prima facie opinion, is contrary to, and inconsistent with the observations (quoted above) made by the 11 Judge Bench decision of this Court in T.M.A. Pai's case (supra), and hence the 2007 Act would become unconstitutional if it is read literally. We have therefore to read down the 2007 Act and Rules to make them constitutional. Such reading down of a statute is permissible, since it is well settled that the Court should make all efforts to sustain the validity of a statute, even if that involves reading its language down vide G. P Singh's `Principles of Statutory Interpretation' Ninth Edition, 2004 pp. 496-503.

Thus, while considering the validity of the Hindu Women's Right to Property Act, 1937, the Federal Court construed the word `property' as meaning `property, other than agricultural land', vide In re Hindu Women's Right to Property Act AIR 1941 F.C. 72 (75), otherwise the Act would have become unconstitutional.

Similarly, in Kedarnath vs. State of Bihar, AIR 1962 SC 1955, this Court while interpreting Section 124A I.P.C read down the words "by words, either spoken or written or by signs or visible representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law". This Court held that to avoid violation of Articles 19 (1)(a) and 19(2) of the Constitution, Section 124A must be limited in its application "to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence".

In our view, a balance has hence to be struck because while on the one hand, the State Government does have an element of interest in the private unaided professional institutions, this does not mean that there will be no autonomy to the private unaided institutions. After all, the private unaided institutions have to generate their own resources and funds and consequently they must have a larger degree of autonomy as compared to the aided institutions or the State Governments institutions."

On the other hand, learned counsel for the University argues that the ratio of judgment in Inamdar's case (Supra) shall, nevertheless, govern the minority as well as non-minority institutions, and also the autonomous colleges, therefore, the arguments of learned counsel for the appellants do not have any merit. Learned counsel for the State relied upon a latest judgment of Hon'ble the Apex Court passed in the case of Adarsh Shiksha Mahavidyala & others v. Subhash Rahandale & others which is also reported in 2012 (2) SCC 425. However, the facts and circumstances of the cases referred to therein appear to be little different from the one in hand.

Learned counsel for the appellants also submitted that 300 students, whose results have been declared, but degrees are withheld by the University, are only those students who were admitted first in point of time, as well as well within the right and claim of the institution that it can adopt its own procedure regarding the admission of such students, and the rest 300 students, who have been thrust upon the college through counselling by the Bareilly University, are not the choice of the College, but only the compulsion, and these students after declaration of their result have already been conferred degrees by the University.

In view of all the aforesaid, we keep the impugned judgment in abeyance till the next date of hearing.

Learned counsel for the University Grants Commission, which has issued the guidelines whereunder the institutions in question have been granted the status of autonomy, shall file counter affidavits within a period of ten days, clarifying their stand on status of the guidelines viz.a.viz judgments of Hon'ble the Apex Court, referred to hereinabove.

This order shall also govern the prayer for grant of interim relief in connected Special Appeal No 483 of 2013 (Dau Dayal Mahila (P.G.) College UPSIDC Campus, Jalesar Road, Firozabad vs. State of U.P. and others) and Special Appeal No. 484 of 2013 (Deepti Jain and others vs. State of U.P. and others.)

List after ten days.

Dated : 7.8.2013

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