Nayab Abbasi Girls Degree College vs State Of U.P. And 2 Others
2016 Latest Caselaw 2414 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

 
Court No. - 33
 

 
Case :- WRIT - C No. - 35328 of 2015
 

 
Petitioner :- Nayab Abbasi Girls Degree College
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rohit Pandey, Neeraj Tiwari
 
Counsel for Respondent :- C.S.C.,Vivek Varma
 

 
Hon'ble Manoj Kumar Gupta, J.

1. The sole issue for consideration is whether a minority institution is entitled to admit students of other communities in B.Ed. Course under the minority quota. The State Government had issued various government orders from time to time whereunder during the academic session 2014-15 fifty percent of the seats in a minority institution were required to be filled up on the recommendation of the counselling university, based on merit at a common entrance test. The remaining fifty percent of the seats (hereinafter referred to as ''the management quota') were left open to be filled by the management of unaided minority institutions from students of their choice, based on their interse merit, determined through the same common entrance test. In other words, fifty percent of the seats were to be filled up by selecting students of all communities strictly in accordance with merit based on the result of common entrance test. The remaining fifty percent of the seats were left open for being filled up from students of minority community, regard being had to the minority character of the educational institution. However, while making such admissions, their interse merit is to be the guiding factor. The government orders are silent on the point as to whether the management quota was to be filled up only by admitting students of minority community or it is permissible to admit students of other communities as well.

2. Brief background facts giving rise to the above controversy may be noted. The petitioner is a self-financed minority institution imparting education in Bachelor of Education (B.Ed.). It has due recognition from the National Council for Teacher Education and is duly affiliated to M.J.P. Rohilkhand University, Bareilly (the third respondent). By an order dated 9 December 2004, the State Government recognised the minority status of the petitioner institution. There is also no dispute between the parties about the minority character of the petitioner. During the academic session 2014-15, a Joint Entrance Test for admission to B. Ed. course was conducted by the fourth respondent (Bundelkhand University, Jhansi). As per the Government Orders occupying the field, fifty percent of the seats were required to be filled up from students recommended by the fourth respondent based on their interse merit in the Joint Entrance Test. The petitioner's institution which has an approved intake of 100 students thus admitted 50 students as per the recommendation made by the fourth respondent. The remaining fifty percent of the seats under the management quota were filled up by the petitioner institution of its own by admitting 41 minority students and 9 students from other communities.

3. According to the petitioner, the total strength of minority students admitted in the institution is 51 as 41 students were admitted by it from its own sources and 10 students of minority community came to be admitted as a result of recommendation made by the fourth respondent. The petitioner furnished details of the admissions made against 100 seats in the institution to the third respondent by letter dated 9 January 2015. The third respondent by communication dated 25 March 2015, requested the Principal Secretary, Higher Education, Anubhag-3, U.P. Government, Lucknow to clarify about the right of a minority institution to admit students of the other communities under the management quota. However, it seems that no clarification was given in that regard by the State Government. The petitioner institution completed all the formalities to entitle its students to appear in the University Examination. However, the third respondent declined to issue admit card to the 9 non-minority students admitted under the management quota. The petitioner institution made representation to the University and to the State Government reminding them of the law laid down by the Supreme Court in the case of P.A. Inamdar vs. State of Maharashtra1 and requested for issuance of the admit card of those students as well. However, when the University still did not issue admit card to these students, the petitioner institution preferred the instant writ petition seeking a mandamus directing the second and the third respondent to issue examination forms and admit card and conduct examination of the students of non-minority community admitted by the petitioner institution under the management quota during the academic session 2014-15.

4. At the time when the writ petition was entertained, an interim order dated 19 June 2015 was passed directing the third respondent to permit those students to appear in the examination provisionally. In pursuance of the said direction, the students of the non-minority community, nine in number, had appeared in the examination but their results have not been declared as permission granted to them was on provisional basis only.

5. The stand taken by the second and the third respondents in the counter affidavit is that the petitioner had illegally admitted students of the other communities under the minority quota and it is for the said reason that they were not being permitted to appear in the examination. According to them, the petitioner which has been conferred with the right to fill up fifty percent of the seats from students of its choice in recognition of its minority character can admit students of minority community only under the said quota and not students from other communities. It is urged that in case the same is allowed, it will defeat the object with which fifty percent seats are reserved for being filled up by the management. On the other hand, the contention of the petitioner is that after admitting 41 students of the minority community under the management quota, 9 seats remained vacant and the petitioner institution was compelled to offer those 9 seats to students of other communities instead of leaving such seats unfilled. In this regard reliance has been placed on various decisions of the Supreme Court, which shall be referred to hereinafter.

6. In a Presidential reference under Article 143(1) of the Constitution relating to the validity of the Kerala Education Bill, 1957 In Re : Kerala Education Bill, 19572 one of the issues considered by the Supreme Court was whether a minority educational institution loses its character as such in case it admits even a single member of non-minority community. The contention of the Government that for availing benefit of Article 30(1), an educational institution must be established for the members of his or their own community alone and as a necessary concomitant thereof only students of the minority community could be admitted to such institutions was repelled by holding as under :-

22....... As to the third condition mentioned above, the argument carried to its logical conclusion comes to this that if a single member of any other community is admitted into a school established for the members of a particular minority community, then the educational institution ceases to be an educational institution established by the particular minority community. The argument is sought to be reinforced by a reference to Art. 29(2). It is said that an educational institution established by a minority community which does not seek any aid from the funds of the State need not admit a single scholar belonging to a community other than that for whose benefit it was established but that as soon as such an educational institution seeks and gets aid from the State coffers Art. 29(2) will preclude it from denying admission to members of the other communities on grounds only of religion, race, caste, language or any of them and consequently it will cease to be an educational institution of the choice of the minority community which established it. This argument does not appear to us to be warranted by the language of the Article itself. There is no such limitation in Art. 30(1) and to accept this limitation will necessarily involve the addition of the words "for their own community" in the Article which is ordinarily not permissible according to well established rules of interpretation. Nor is it reasonable to assume that the purpose of Art. 29(2) was to deprive minority educational institutions of the aid they receive from the State. To say that an institution which receives aid on account of its being a minority educational institution must not refuse to admit any member of any other community only on the grounds therein mentioned and then to say that as soon as such institution admits such an outsider it will cease to be a minority institution is tantamount to saying that minority institutions will not, as minority institutions, be entitled to any aid. The real import of Art. 29(2) and Art. 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this condition into Art.30(1) of the Constitution."

(emphasis supplied)

7. In St. Stephen's College vs. University of Delhi3, a Constitutional Bench of the Supreme Court while considering the interplay between Article 29(2) and Article 30 held that an aided minority educational institution cannot claim right to admit students of its community alone. Infact, the same is held to be impermissible. It would undermine the secular democracy and would be inconsistent with the concept of equality embedded in the constitution. It is held that there should be proper mix of students of different communities. The decision concluded by holding that a minority aided educational institution is entitled to prefer their community candidates to maintain the minority character of the institution but in no case such intake should exceed fifty percent each of the annual admission. A minority institution is required to make available at least fifty percent of the annual admission to members of other community to be done purely on the basis of merit. Relevant observations made in this regard are reproduced below for convenience of reference.

"80. Indeed, we should steer clear of the two extreme arguments urged for the institutions. Counsel for the institutions contended that the preference given to minority candidates in their own educational institution is not violative of Article 29(2). Such preference is not solely on the basis of religion but on the ground that the candidate belongs to a minority community. It was also urged that the minorities in the exercise of their right in Article 30(1) are entitled to establish and administer educational institutions for the exclusive advantage of their own community candidates. So far as the first point is concerned, it may be noted that the institutional preference to minority candidates based on religion is apparently an institutional discrimination on the forbidden ground of religion. It operates to stigmatise or single out candidates from non-minority communities on the ground only of religion. If an educational institution says "yes" to one candidate but says "no" to another candidate on ground of religion, it amounts to discrimination on ground of religion. The mandate of Article 29(2) is that there shall not be any such discrimination.

81. Equally, it would be difficult to accept the second submission that the minorities are entitled to establish and administer educational institutions for their exclusive benefit. The choice of institutions provided in Article 30(1) does not mean that the minorities could establish educational institution for the benefit of their own community people. Indeed, they cannot. It was pointed out in Re: Kerala Education Bill that the minorities cannot establish educational institution only for the benefit of their community. If such was the aim, Article 30(1) would have been differently worded and it would have contained the words "for their own community". In the absence of such words it is legally impermissible to construe the Article as conferring the right on the minorities to establish educational institution for their own benefit.

82. Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to have relatively a homogeneous society. It may lead to religions bigotry which is the bane of mankind. In the nation building with with secular character sectarian schools or colleges; segregated faculties or universities for imparting general secular education are undesirable and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embedded in the constitution. Every educational institution irrespective of community to which it belongs is a 'melting-pot' in our national life. The students and teachers are the critical ingredients. It is there they develop respect for, and tolerance of, the cultural and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions.

102. In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities under Art. 30(1), the minority aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institutions subject of course in conformity with the University standard. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed fifty per cent of the annual admission. The minority institutions shall make available at least fifty per cent of the annual admission to members of communities other than the minority community. The admission of other community candidates shall be done purely on the basis of merit."

(emphasis supplied)

8. The correctness of the law laid down in St. Stephen's was doubted by a subsequent bench and it led to Eleven Judge Constitution Bench judgement in the case of T. M. A. Pai Foundation vs. State of Karnataka4. Hon'ble Kripal, C.J.I., who rendered a majority judgement while answering the fifth question as regard the procedure to be followed by a minority institution in admitting students, had split up question no. 5 in three parts. While answering question no.5(a), it is held that a minority institution may have its own procedure and method of admission as well as selection of student, but such 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 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 student to the colleges aforesaid, as in that case, the institution will fail to achieve excellence. While answering question no. 5(b) as regard the procedure and method of admission where the institution is receiving aid, it is held that it would be permissible for the authority giving aid to prescribe by Rules and Regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students. The merit may be determined either through common entrance test conducted by the concerned University or the Government followed by counselling, or on the basis of an entrance test conducted by the individual institutions - the method to be followed is for the University or the Government to decide.

9. The judgement of the Constitution Bench in the case of T.M.A. Pai (supra) was understood in different perspectives leading to a lot of litigation. The task of ironing out the creases and of resolving issues post the judgement in T.M.A. Pai was taken up by a Bench of Five Judges in Islamic Academy of Education and another vs. State of Karnataka5. The Supreme Court clarified that common entrance test contemplated by the Constitution Bench judgement in the case of T. M. A. Pai (supra) means that each institute cannot hold a separate test. The management would select students of their quota either on the basis of common entrance test 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. Common entrance test, if held by the institution themselves should be for admission to all colleges of that particular type in the State and such an option is to be exercised before issuance of prospectus and after due intimation to the University and the State Government.

10. The second issue which was clarified in that judgement is that a distinction is to be made between the minority and non-minority professional colleges. In case of non-minority professional colleges a certain percentage of seats are reserved for admission by the management and rest is to be filled up on the basis of counselling by the State agencies. The prescription of percentage has to be done by the Government according to local needs. However, in respect of unaided minority institution, a different percentage can be prescribed. The same yardstick cannot be applied to both minority and non-minority professional colleges. In fixing percentage for unaided minority professional colleges, the State has to keep in mind, apart from local need, the interest and the need of that community in the State.

11. One other clarification made in the said judgement and which is relevant for controversy on hand is that a minority professional college can admit students from members of other communities as well, if certain seats are left unfilled after admitting members of their own community. However, again it is held that while making such admission, interse merit of the students cannot be ignored. In this regard, it has been held as under :-

"14. 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 be 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".

(emphasis supplied)

12. The judgement lays down that a minority institution can (i) admit student of their own community in preference to a student of another community even though that other student is more meritorious; (ii) however, while admitting students of their community, the interse merit of those students cannot be ignored; (iii) the admission of the minority students under the management quota is to be made on the basis of common entrance test conducted by the State or on the basis of a common entrance test to be ‍conducted by an association of all colleges of that particular type in the entire State; (iv) further if the seats cannot be filled up from members of their community, then the students of other communities can be admitted; and (v) the admissions of such students is again to be merit based. Thus, the Supreme Court has clearly laid down that there is no embargo in admitting students of other communities against unfilled seats under the management quota. It shall however be merit based.

13. The judgement in the case of Islamic Academy of Education (supra) led to yet another judgment in P.A. Inamdar (supra) as some of the issues still remained unsettled. The Court while discussing the inter relation between Article 19 (1)(g), 29(2) and 30(1) held that a minority educational institution has a right to admit students of its own choice. It can, as a matter of its own freewill, admit students of non-minority community. However, non-minority students cannot be forced upon it. The only restriction on the freewill of the minority educational institution admitting students belonging to a non-minority community is, as spell out by Article 30 itself, the manner and number of such admission should not be violative of the minority character of the institution. Meaning thereby that a major chunk of the students admitted to such institution should be from minority community, lest it may be denuded of its minority character. While answering question no.1 as to the extent to which the State can regulate admission made by an unaided (minority or non-minority) educational institution and can the State enforce its policy of reservation, it was held as under :-

"132. Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other States, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. If they do so, they lose the protection of Article 30(1).

(emphasis supplied)

14. It can thus be culled out from the aforesaid decisions of the Supreme Court that there is no prohibition in admitting students belonging to the other communities under the minority quota but it should not be to such extent that its minority character is lost. In the instant case, the specific case of the petitioner is that it had admitted 41 student belonging to minority community under the management quota and another 10 student of the minority community on the basis of the recommendation made by the counselling university and thus, the total number of minority students admitted is 51 out of 100. This, in the opinion of the Court, is sufficient to retain the minority character of the petitioner institution and thus, it cannot be said that the admissions of nine students of other communities under the management quota was in the manner contrary to the constitutional scheme or the law enunciated by the Supreme Court in various judgements referred to above.

15. Learned counsel for the respondent-university placed much emphasis on a Full Bench decision of this Court in the case of Tuples Educational Society and another vs. State of U.P. and others. In the aforesaid judgement, the Full Bench answered six issues in the following manner :-

46. In the circumstances, we answer these issues as follows:-

1. Whether the admissions to private unaided (minority and non-minority) 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. Whether the judgment rendered by learned Single Judge on 14.12.2006 in Writ Petition No.5674 (M/S) of 2006: U.P. Management Association of Self Finance Teachers Training Colleges Vs. State of U.P. & Ors. has correctly appreciated the TMA Pai, Islamic Academy and P.A. Inamdar's case and has laid down correct law?
 
 
 
Ans.           Yes
 

 
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. Whether the entire process of admissions to these colleges must be left to the supervision of the Justice H.N. Tilhari (Retd.) Committee constituted by the State Government in terms of the decisions issued in P.A. Inamdar's case?
 
 
 
Ans. 		Yes
 
 
 
5. Whether for the session 2005-06 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. Whether the decision of the Division Bench of Lucknow in Special Appeal No.263 of 2007: Dr. Bhim Rao Ambedkar University, Agra Vs. S.S. College, Barbarpur, Sikandara, Agra and another lays down the correct law and covers the issues involved in the present writ petition.
 
 
 
Ans. No 
 

 

16. The aforesaid questions were raised in the context of validity of a circular dated 13 June 2007 issued by Chaudhary Charan Singh University being challenged; the circular provided that the admission to B.Ed. during the academic session 2006-07 will be effected through counselling by the said University. Tuples Society sought mandamus restraining the University from interfering in its right to admit the students of its choice. The Full Bench, having regard to the fact that during the relevant year, the State had not conducted any common entrance test and keeping in mind the provisions of NCTE Act and the Regulations framed under the said Act, held that it was permissible for the University to hold an entrance examination for admitting students to the colleges affiliated to it and admissions being made on the basis of merit list of the entrance examinations conducted by the University; both in respect of fifty percent seats available for being filled up on the basis of open competition from all categories as well as students under the management quota.

17. In the instant case, however, there is no dispute that fifty percent admissions under open category were made on the recommendation of the counselling university based on the merit determined through common entrance test. There is also no dispute that 41 admissions of minority students under the management quota were made by the petitioner on the basis of the merit list of the common entrance test. In relation to the nine students belonging to other communities, who were admitted under the management quota, specific stand of the petitioner is that even those students were selected on basis of their interse merit in the common entrance test. It has been specifically averred that all of them had passed common entrance test and the merit at such entrance test was the criteria for making such admissions. There is no denial to the same in the counter affidavit which has been filed, though at the time of hearing, a suggestion is sought to be made before the Court that there is no material on record to establish that such admissions were made strictly in accordance with their interse merit. It is noticeable that in the counter affidavit, the only stand of the respondent University was that the petitioner institution was not entitled to make admission of non-minority students under the minority quota and there was no plea that any more meritorious student of non-minority community seeking admission to the petitioner institution was denied such admission. In the absence of any such plea being raised in the pleadings, this Court refuses to go into such question nor considers it proper to nonsuit the petitioner on such ground.

18. As a consequence and in view of the discussion made above, the admission of the nine students of non-minority community under the management quota is not found to be in breach of any provision of law and accordingly, this Court directs the respondent-University to treat such admission to be legal and valid and declare their results forthwith. Accordingly, the writ petition succeeds and is allowed.

19. No order as to costs.

Order Date :- 10 May 2016

skv

(Manoj Kumar Gupta, J.)