Eram Girls Degree College Thru ... vs State Of U.P Thru Prin Secy Basic ...
2017 Latest Caselaw 3695 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 5                                                                   A.F.R.
 
Case :- MISC. SINGLE No. - 18243 of 2017
 
Petitioner :- Eram Girls Degree College Thru Manager & Anr
 
Respondent :- State Of U.P Thru Prin Secy Basic Edu Lko & Ors
 
Counsel for Petitioner :- Manish Kumar
 
Counsel for Respondent :- C.S.C
 
Hon'ble Devendra Kumar Upadhyaya,J.

Uncertainty of law in respect of rights of a privately managed and recognized minority institution imparting higher professional education to admit students against sanctioned seats in such courses is the issue which has once again emerged in this case to be settled by this Court.

The petitioners-institutions are recognized by the National Council for Teacher Education (NCTE) for conducting teacher education programme known as D.El.Ed. (formerly known as B.T.C.) with an annual intake of 100 seats (two units) each. These institutions are enjoying status of minority institution and are being run and managed by minority community and do not receive any aid from the State Government. The petitioners-institutions are also affiliated with the appropriate authority of the State Government for running the D.El.Ed. Course.

The petitioners-institutions, by instituting these proceedings under Article 226 of the Constitution of India have assailed the validity of an order issued by the State Government on 25.05.2017 whereby they have been required to admit students only against 50% of the seats out of the total seats approved by the NCTE on their own. Meaning thereby rest of the seats have been directed to be filled in on the basis of merit to be prepared through a selection to be held by the State or its Agencies.

Heard learned counsel appearing for the petitioners, Sri Manish Kumar. Sri Kuldeep Pati Tripathi, learned Additional Advocate General and Sri Ramesh Pandey, learned Chief Standing Counsel appearing for the State-respondents have also been heard.

The basic premise of challenge made in this writ petition to the Government Order dated 25.05.2017 is that the arrangement for admission which has been made by the impugned Government Order, which can be described as ''seat sharing' between the State agencies and minority institutions, is impermissible in view of the law laid down by Hon'ble Supreme Court in the case of T.M.A. Pai Foundation and others Vs. State of Karnataka and others, reported in (2002) 8 SCC 481 and in the case of P.A. Inamdar and others Vs. State of Maharashtra and others, reported in (2005) 6 SCC 537.

Canvassing the case of the petitioners, it has vehemently been argued by the learned counsel for the petitioners that no ''seat sharing' or appropriation of quota has been approved of by the Hon'ble Supreme Court in the aforesaid two judgments as has been explained in P.A. Inamdar's case (supra) and, therefore, impugned Government Order runs contrary to the law declared by Hon'ble Supreme Court, which will not be binding on the petitioners-institutions for the reason that admittedly, the petitioners-institutions are unaided minority institutions conducting D.El.Ed course. Learned counsel for the petitioners has relied upon several judgments of this Court including the judgment dated 25.09.2014 rendered by a Division Bench of this Court in the case of National Mahila Mahavidyalaya, Balrampur Vs. State of U.P. and others (Special Appeal (Defective) No. 376 of 2014), judgment dated 29.08.2011 rendered by another Division Bench of this Court in the case of Dr. Ram Manohar Lohia Avadh University Vs. Hazi Islamic Degree College (Special Appeal No. 605 of 2011), judgment dated 14.10.2011 delivered by Hon'ble Single Judge of this Court in the case of Kisan Degree College, Mahua Pakar Gaura Chowk, District Gonda Vs. State of U.P. and another (W.P.No. 5110(MS) of 2011) and the judgment dated 30.04.2015 delivered by yet another Hon'ble Single Judge of this court in W.P. No. 2005(MS) of 2015 and Writ Petition No. 1400(MS) of 2015 of which W.P. No. 1400(MS) of 2015 was filed by the petitioners themselves.

Forcefully opposing the prayers made in this writ petition, Sri Kuldeep Pati Tripathi, learned Additional Advocate General and Sri Ramesh Pandey, learned Chief Standing Counsel have submitted that in view of the fact that the Government Order dated 25.05.2017 has been issued in compliance of an order dated 09.02.2017 passed by this Court at Allahabad in Writ-C No. 60387 of 2016, Shama Parveen and others Vs. State of U.P. and others, hence any challenge to the Government Order in these proceedings is not permissible. It has further been contended by the learned counsel appearing for the State-respondents that as a matter of fact, Hon'ble Single Judge while passing the order dated 09.02.2017 in the case of Shama Parween (supra) has referred the matter before the PIL Bench of this Court and as such it would be appropriate for the petitioners either to challenge the order dated 09.02.2017, passed by Hon'ble Single Judge in the case of Shama Parveen (supra) by filing Intra-Court Appeal or by seeking their impleadment in PIL which has been ordered to be registered by Hon'ble Single Judge while passing the order dated 09.02.2017. Learned counsel representing the State-respondents have also made valiant efforts to justify the Government Order dated 25.05.2017 by stating that rights of minority institutions emanating from Article 30(1) of the Constitution of India are subject to equality clause enshrined under Article 14 of the Constitution of India and such rights of minority institutions are subservient to national interest as observed by Hon'ble Single Judge in his order dated 09.02.2017 in the case of Shama Parween(supra). It has also been argued by the learned counsel representing the State-respondents that dictum in the case of P.A. Inamdar(supra) is very clear, according to which so far as minority unaided institutions are concerned, the State cannot interfere with their right to admit students as right of admitting the students is one of the components of "right to administer and establish the institutions", however, the State cannot interfere with the said right of making admission only upto under graduate level, however, different considerations would apply for graduate and post-graduate level education and also for professional and technical education Courses. Taking the said argument further, it has been submitted on behalf of the State that since higher education, which would include technical and professional education, cannot be imparted by any institution unless it is recognized by or affiliated with a competent authority created by law, hence, for maintaining excellence and high standard in higher professional education, the State Government can step in in national interest.

Terming the impugned order dated 25.05.2017 as a step taken by the State to ensure excellence and high standard of the education in D.El.Ed course, learned Additional Advocate General and learned Chief Standing Counsel have submitted that the impugned Government Order was necessitated not only for ensuring the compliance of the order dated 09.02.2017 rendered by Hon'ble Single Judge in the case of Shama Parveen(supra) but also to safe guard the interest of students in national interest.

I have given my anxious consideration to the competing arguments advanced by learned counsel appearing for the respective parties and have also gone through various judgments of this Court rendered after the judgment was delivered by the Hon'ble Apex Court in T.M.A. Pai case (supra).

It is not in dispute that the petitioners-institutions are recognized by the NCTE, a statutory body created under the National Council for Teacher Education Act. It is also not in dispute that these institutions are affiliated with the competent authority of the State Government for imparting teachers education leading to award of diploma in elementary education (D.El.Ed.) and that these institutions have been given status of minority institutions by the competent authority.

For the purposes of making selection to B.T.C. Course (as the D.El.Ed. Course was then known), the State Government issued a Government Order on 22.07.2013. Clause 13 of the said Government Order dated 22.07.2013 provided that minority institutions approved for running B.T.C. Course by NCTE which are affiliated with the State Government shall fill in 50% of the sanctioned seats through selection to be held by the Principals of District Institute of Education and Training concerned and remaining 50% seats shall be filled in by the minority institutions on their own in accordance with the provisions contained in the said Government Order dated 22.07.2013. Clause 13 of the said Government Order dated 22.07.2013 is quoted herein under:-

"vYila[;d laLFkk&,u0lh0Vh0bZ0 ls ch0Vh0lh0 izf'k{k.k gsrq ekU;rk rFkk jkT; ljdkj ls lEc)rk izkIr ,slh futh laLFkkvksa] ftUgsa jkT; ljdkj }kjk vYila[;d laLFkk ?kksf"kr fd;k x;k gS] dh 50 izfr'kr lhVksa ij p;u lEcfU/kr tuin ds izkpk;Z] ftyk f'k{kk ,oa izf'k{k.k laLFkku }kjk fd;k tk;sxkA 'ks"k 50 izfr'kr lhVksa ij p;u bl 'kklukns'k esa mfYyf[kr izkfo/kkuksa ds vuqlkj lacaf/kr laLFkku }kjk fd;k tk;sxkA"

Thus, by the aforesaid Government Order dated 22.07.2013 an arrangement of ''seat sharing' or appropriation of quota of seats was made in case of unaided minority institutions imparting teachers training leading to grant of B.T.C. certificate.

Clause 13 of the aforesaid Government Order dated 22.07.2013 was challenged before this Court in the case of Committee of Management, Adarsh College of Education (Ideal Education Trust) Nawabganj, Barabanki and others Vs. State of U.P. and others (Writ Petition No. 1168 (MS) of 2014, which was finally decided by Hon'ble Single Judge by means of judgment and order dated 28.05.2014, reported in [2014(6) ADJ 162(LB)]. Paragraphs 44, 45, 46 and 47 of the said judgment rendered by Hon'ble Single Judge are relevant to be quoted, which run as under:-

"44. By means of Government Order impugned dated 22 nd July,2013 the State Government has provided the procedure for selection for B.T.C. Training course. Indisputably no procedure of selection has been laid down by the NCTE Act. Therefore, it cannot be said that the procedure prescribed by the State/ Affiliating body is faulty and in contravention of the provisions of the NCTE Act.

45. Hon'ble Supreme Court in P.A. Inamdar's case( supra) has also permitted the fixation of percentage of quota that are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State. No doubt it has also been held that State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.

46. In the matter of non-minority institution Hon'ble Supreme Court has held 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 minority or 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 31. Thus, whole purpose of restraining reservation or fixing any quota or percentage in admission in the minority institutions are that they should not be compelled to admit the candidates to the extent that it loses its character, but in the manner of procedure for admission, if the same is regulated by the State Government, it cannot be said to be unfair or encroachment in the jurisdiction of the minority institution.

47. As is evident from the judgments referred to above, the State Government being affiliating body has right to regulate the admission/ selection for the teacher training course. Therefore, I am of the considered opinion that the State Government is fully empowered to regulate the admission. Therefore, clause 13 of the impugned Government Order cannot be said to be without jurisdiction or in contravention of Article 19(1) (g) or Article 30(1) of the Constitution of India.

Hon'ble Single Judge after noticing the prescriptions of the Government Order dated 22.07.2013 has referred to the judgment of Hon'ble Supreme Court in the case of P.A. Inamdar (supra) and has observed that P.A. Inamdar's case permits fixation of percentage of quota which is to be read and understood as ''possible consensual arrangements' which can be reached between unaided private professional institutions and the State. It has also been held in this case that State regulation should be minimal and should be confined only to maintain fairness and transparency in admission procedure and to check exploitation of the students by prohibiting exorbitant money or capitation fees. Hon'ble Single Judge further proceeds to observe that no quota or percentage of admissions can be carved out to be appropriated by the State in unaided minority or non-minority institutions. It has further been observed in this case that regulation by State in the matter of admission to minority institutions cannot be permitted in a manner which makes a minority institution loose its character as a minority institution and in case this happens, the minority institution shall lose the protection of Article 30. After making the aforesaid observations, the Hon'ble Single Judge, however, in concluding paragraph 47 of the said judgment, held that the State Government, being affiliating body, has a right to regulate the admission/selection for the teacher training course and that the State Government was fully empowered to regulate the admission. Hon'ble Single Judge, thus, concluded that Clause 13 of the Government Order dated 22.07.2013 cannot be said to be without jurisdiction or in contravention of Article 19(1)(g) or Article 30(1) of the Constitution of India.

The aforesaid judgment rendered by Hon'ble Single Judge in the case of Committee of Management, Adarsh College of Education (supra) became the subject matter of challenge before the Division Bench of this Court in Special Appeal Defective No. 376 of 2014, National Mahila Mahavidyalaya Balrampur Vs. State of U.P. and others and the Division Bench by means of its judgment dated 25.09.2014 allowed the Special Appeal and set aside the judgment dated 28.05.2013 and further held that the minority institutions are free to admit the students on their own choice, however, the merit of the students cannot be ignored.

In compliance of the aforesaid judgment dated 25.09.2014 rendered by the Division Bench of this Court, the State Government issued a Corrigendum by Government Order dated 10.06.2015 modifying Clause 13 of the Government Order dated 22.07.2013. By this Corrigendum, it was provided that minority institutions shall make admissions on the basis of selection to be conducted by the minority institutions in a transparent manner and further that said selection shall be made through Admission Committee which will include, amongst others, the Principal, DIET of the concerned district and a member to be nominated by DIET. The Corrigendum dated 10.06.2015 further provided that admission to B.T.C. course shall be made strictly in accordance with the merit and that the training to the selected candidates shall be imparted as per the curriculum approved by the State Government and that such candidates admitted by the minority institutions shall be subjected to the examination to be conducted by the Examination Regulatory Authority, U.P., Allahabad.

It is this Government Order dated 10.06.2015 that became the subject matter of the order dated 09.02.2017 rendered by the Hon'ble Single Judge in the case of Shama Parveen (supra), wherein Hon'ble Single Judge in his final analysis has found the arrangement of ''seat sharing' to be in conformity with law laid down by Hon'ble Supreme Court in the case of T.M.A. Pai (supra), Islamic Academy, (2003) 6 SCC 697 and P.A. Inamdar(supra). Hon'ble Single Judge by the order dated 09.02.2017 has kept the effect and operation of Government Order dated 10.06.2015 in abeyance and has further directed that all minority institutions in the State imparting D.El.Ed course shall be subjected to Centralized Counselling Process for admitting students as applicable to other institutions, however, 50% of the sanctioned strength shall be filled in on their own from the minority community. Hon'ble Single Judge has further observed that the order dated 09.02.2017 shall apply prospectively.

As to what is the exact ratio of the judgment rendered by Hon'ble Supreme Court in the case of T.M.A. Pai(supra) as deduced in the case of P.A. Inamdar(supra) has been the subject matter of discussion in various judgments of this Court.

The Division Bench in its judgment dated 25.09.2014 in Special Appeal Defective No. 376 of 2014 (supra) has held that all minorities whether based on religion or language shall have the right to establish and administer educational institutions on their own choice and that the State does not have power to interfere with the admission process and to force admission of students from amongst non-minority communities will affect the minority character of the institutions. The Division Bench in the Special Appeal Defective No. 376 of 2014(supra) has discussed the arguments advanced in that case by the appellant based on the judgments in the case of T.M.A. Pai (supra), P.A.Inamdar(supra) and Pramati Educational and Cultural Trust and others Vs. Union of India and others, reported in (2014) 8 Supreme Court Cases 1. The Division Bench has also relied upon another Division Bench Judgment of this court rendered in the case of Dr. Ram Manohar Lihia Avadh University Vs. Haji Ismail Degree College Sadullah Nagar Balrampur (Special Appeal No. 605 of 2011). However, the Division Bench while allowing the Special Appeal Defective No. 376 of 2013 has observed that the learned counsel representing the State-authorities did not dispute that the said case was squarely covered by decision of Hon'ble Apex Court referred to in the judgment dated 25.09.2014. The fact remains that the Division Bench by means of its judgment and order dated 25.09.2014 allowed the Special Appeal and set aside the order of Hon'ble Single Judge dated 28.05.2014 in the case of Committee of Management, Adarsh College of Education (supra) whereby Clause 13 of the Government Order dated 22.07.2013 permitting seat sharing was upheld. As a result of Division Bench judgment in Special Appeal Defective No. 376 of 2014, the ''seat sharing' was not permissible and it is in this background that Clause 13 of the Government Order dated 22.07.2013 was modified by issuing Corrigendum by the State Government through Government Order dated 10.06.2015.

The judgment rendered by Hon'ble Single Judge on 18.05.2011 in the case of Hazi Ismail Degree College Vs. State of U.P. and others [Writ Petition No. 1905(MS) of 2011] related to right of minority institutions to admit students in another teacher training course, namely, B.Ed. The Hon'ble Single Judge relying upon the T.M.A. Pai Foundation's case (supra) and upon another judgment of Hon'ble Supreme Court, reported in (2007) 1 SCC, 386, Secretary, Maiankara Syrian Catholic College Vs. T. Jose and others has held that minority institutions established by a minority community would continue to be so and the minority institutions are free to admit eligible students of their own choice. Hon'ble Single Judge in the case of Hazi Ismail Degree College (supra) also relied upon the provisions of U.P. Act No. 24 of 2006 i.e. U.P. Private Professional Educational Institution (Regulation of Admission and Fixation of Fee) Act, 2006.

Relying upon various judgments of Hon'ble Supreme Court and also taking aid of exclusion clause contained in Section 6 of 2006 State enactment, which provides that State Government may reserve seats out of sanctioned intake in unaided private professional institutions other than minority institutions under the management category, has held that it is wrong to say that minority institutions are permitted only to fill up 50% of seats on their own and 50% seats are to be filled in through the candidates allocated to these institutions by counselling conducted by the State or its Agencies.

The judgment and order dated 18.05.2011 rendered by Hon'ble Single Judge in the case of Haji Ismail Degree College (supra) was challenged before the Division Bench of this Court in Special Appeal No. 605 of 2011 which again relied upon the exclusion of the minority institutions from operation of 2006 Act and laid down that minority institutions are a class by themselves and therefore, they are free to admit the students of their choice, of course, subject to the condition that the merit of students cannot be ignored. The Division Bench while rendering the judgment in Special Appeal No. 605 of 2011 has relied upon the mandate of P.A. Inamdar's case (supra) and did not find any infirmity in the judgment passed by Hon'ble Single Judge in the case of Haji Ismail Degree College (supra) dated 18.05.2011.

The judgment rendered by the Division Bench of this Court in Special Appeal Defective No. 376 of 2014 has been relied upon by Hon'ble Single Judge in various other cases, some of which are Writ-C No. 13570 of 2014, decided on 17.10.2014, Writ-C No. 13573 of 2014, decided on the same day i.e. 17.10.2014, Writ-C No. 13571 of 2014, decided on 31.10.2014 and Writ-C No. 19900 of 2014, also decided on 31.10.2014. The dictum of Division Bench in Special Appeal Defective No. 376 of 2014 has further been relied upon by Hon'ble Single Judge in Writ-C No. 60318 of 2014 and Writ-C No. 60314 of 2014, both decided on 12.11.2014.

The issue relating to ''seat sharing' or appropriation of quota in case of minority educational institutions imparting education in B.T.C. Course was once again considered by another Hon'ble Single Judge in the case of Committee of Management, Krishan Institute of Education Vs. State of U.P. and others, decided on 16.01.2015, Writ Petition 7017(MS) of 2014, wherein the dictum of Hon'ble Supreme Court in P.A. Inamdar's case (supra) was deduced and it was observed that the State cannot impose a quota upon unaided minority educational institutions in the matter of admission to professional courses except as ''possible consensual arrangement reached between the unaided private professional educational institution and the State'. The relevant observation made by Hon'ble Single Judge in the case of Committee of Management Krishan Institute of Education (supra) is as under:-

"As per the dictum of the Supreme Court in P.A. Inamdar's case, the State cannot impose a quota upon unaided minority educational institutions in the matter of admission to professional courses except as ''possible consensual arrangements reached between the unaided private professional educational institution and the State'. The State Government has been empowered with a minimal regulation of the admission process of such institutions with a view to maintain fairness and transparency in admission procedure including adherence to merit and to check exploitation of the students by charging exorbitant money for capitation fees. In this regard, paragraphs 124 to 130 and 132 of the judgment of the Supreme Court in P.A. Inamdar's case is quoted hereinbelow:

"124. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of a difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement State's policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit.

125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, is there anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.

126. The observations in paragraph 68 of the majority opinion in Pai Foundation, on which the learned counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation, if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in paragraph 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs of weaker and poorer sections of the society.

127. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats.

128. We make it clear that the observations in Pai Foundation in para 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.

129. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of students by charging exorbitant money or capitation fees.

130. For the aforesaid reasons, we cannot approve of the scheme evolved in Islamic Academy to the extent it allows States to fix quota for seat sharing between the management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. That part of the judgment in Islamic Academy, in our considered opinion, does not lay down the correct law and runs counter to Pai Foundation.

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)."

The understanding of law laid down in the case of P.A. Inamdar's case (supra) as reflected in the judgment and order dated 16.01.2015 in the case of Committee of Management Krishan Institute of Education (supra) is based on reference to relevant paragraphs of judgment of Hon'ble Supreme Court in P.A. Inamdar's case. It is well known that in P.A. Inamdar's case (supra), the issue which Hon'ble Supreme Court decided related to culling out or deducing the ratio-decendi of T.M.A. Pai case (supra) and to examine as to whether the clarification given in Islamic Academy runs counter to T.M.A. Pai' case and if so to what extent. Hon'ble Single Judge in the case of Committee of Management, Krishan Institute of Education (supra) has extensively quoted the understanding of the judgment of T.M.A. Pai's case(supra) by Seven Judges Bench which rendered the judgment in P.A. Inamdar's case(supra). Para 125 of the judgment in the case of P.A. Inamdar's case(supra) clearly gives the ratio of T.M.A. Pai's case (supra), according to which there is nothing in the judgment rendered in the case of T.M.A. Pai's case which allows the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State. It has been further observed in Para 125 of the said judgment that such a ''seat sharing' would amount to nationalization of seats which has been specifically disapproved in T.M.A. Pai's case and that such imposition of quota of State seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. It has further been observed that such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) of the Constitution or a reasonable restriction within the meaning of Article 19(6) of the Constitution.

In Para 130 of the judgment in P.A. Inamdar's case, the Hon'ble Supreme Court has disapproved the scheme evolved in Islamic Academy (supra) to the extent it allowed States to fix quota for seat sharing between the management and the States on the basis of local needs of each State in the unaided private educational institutions of both minority and non-minority categories. In final analysis, the Hon'ble Supreme Court in the case of P.A. Inamdar's case lays down in Para-132 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 and further that minority institutions are free to admit students of their own choice including students of non-minority community.

Based on the aforesaid observations of Hon'ble Supreme Court, Hon'ble Single Judge in the case of Committee of Management, Krishan Institute of Education (supra) has held that the State cannot impose a quota upon unaided minority educational institutions in the matter of admissions to professional courses except as ''possible consensual arrangements reached between the unaided private professional educational institution and the State'.

Yet another Hon'ble Single Judge in his judgment dated 30.04.2015 rendered in Writ Petition No. 2005 (MS) of 2015 and Writ Petition No. 1400(MS) of 2015, which was filed by the petitioners, has directed that Clause 13 of the Government Order dated 22.07.2013 shall not be insisted upon to be implemented in any manner, however, this will be subject to the condition that State will be at liberty to compel the unaided minority institutions not to compromise with merit and to follow a transparent procedure in selection for admission.

On an examination of the aforesaid judgments rendered by two Division Benches in Special Appeal Defective No. 376 of 2014 and Special Appeal No. 605 of 2011 and the judgment rendered by Hon'ble Single Judge in the case of Committee of Management, Krishan Institute of Education and also in Writ Petition No. 2005 (MS) of 2015 and Writ Petition No. 1400 (MS) of 2015, what comes to fore is that these judgments form one line of pronouncements by this Court wherein ''seat sharing' or appropriation of quota in the matter of admissions to courses of higher and professional education by unaided minority institutions has been found to be impermissible subject of course to the exception as ''possible consensual arrangement reached between the unaided private professional educational institution and the State' and also subject to the condition that these institutions are permitted to make admissions only through a transparent and fair procedure of admission without compromising with the merit.

I have carefully gone through the order dated 09.02.2017, which is only an interim order, rendered by Hon'ble Single Judge in the case of Shama Parveen (supra), though it has trappings of a final pronouncement. This order dated 09.02.2017 clearly departs from the first line of pronouncements by this court as observed above. Hon'ble Single Judge while departing from and taking a view different than the view taken by the Division Bench in the case of Special Appeal Defective No. 376 of 2014 has observed that this Division Bench judgment is based on concession of the learned counsel appearing for the State upon mis-reading of the ratio of the judgment in Parmati Educational and Cultural Trust and others Vs. Union of India (supra). Hon'ble Single Judge has further drawn distinction between unaided minority institutions imparting education upto under graduate level and such institutions imparting education upto graduate and post-graduate level of education. Relying upon certain observations made by Hon'ble Apex Court in the case of P.A. Inamdar's case (supra), the Hon'ble Single Judge in his order dated 09.02.2017 has held that the percentage of minority students that the minority institutions can admit has to be determined by the State Government.

I may, with utmost respect, state that the view taken by the Hon'ble Single Judge in the order dated 09.02.2017 in the case of Shama Parveen (supra) is in clear departure of what has been held by two Division Benches of this Court in the judgment dated 25.09.2014 (Special Appeal Defective No. 376 of 2014) and the judgment dated 29.08.2011 (Special Appeal No. 605 of 2011). The order dated 09.02.2017 also departs from the view expressed by Hon'ble Single Judge in the judgment dated 16.01.2015 in the case of Committee of Management Krishan Institute of Education (supra) and the judgment dated 30.04.2015 rendered by another Single Judge in Writ Petition No. 2005(MS) of 2015 and Writ Petition No. 1400(MS) of 2015.

Learned Additional Advocate General and learned Chief Standing Counsel appearing for the State-respondents have also relied upon the Division Bench judgment dated 10.03.2017, rendered in the case of Sankalp Institute of Education, Ghaziabad Vs. State of U.P. and others (Special Appeal Defective No. 92 of 2017 connected with Special Appeal No. 93 of 2017, Faiz-E-Azam Modern Degree College and others Vs. State of U.P. and others.

The facts of the case in Sankalp Institute of Education (supra) are that the said institution is a recognized and affiliated unaided minority institution imparting education leading to award of B.Ed. Degree. The sanctioned intake of the students in the said course is 100. In the year 2014-15, through Centralized Counselling conducted by a State agency, namely, Bundelkhand University, Jhansi, 21 students were recommended for admission to the said institution. After admitting 21 students as recommended through Centralized Counselling conducted by Bundelkhand University, the institution admitted 79 students on its own. Out of these 79 students admitted by the institution on its own, 50 students belonged to the minority community and, thus, short fall of 29 students was completed by admitting students not through the process of counselling conducted by Bundelkhand University but by the institution on its own. The affiliating university i.e. Chaudhary Charan Singh University, Meerut did not recognize these 29 admissions on the ground that the quota available to the institution to admit the students on its own extended only to 50% of sanctioned seats and not beyond that. The matter was taken before this Court and the Division Bench while rendering the judgment in this case on 10.03.2017 has observed that these 29 students were admitted wrongly by the institution and that they were rightly deprived of taking the B.Ed. Examination conducted by the affiliating University. The Division Bench, thus, affirmed the judgment rendered in the said case by Hon'ble Single Judge.

The Division Bench in the case of Sankalp Institute of Education (supra) has referred to the judgments in the case of T.M.A. Pai, Islamic Academy and P.A. Inamdar (supra). It has referred to the judgment of the Division Bench of this Court in Special Appeal Defective No.376 of 2014, decided on 25.09.2014, wherein the Division Bench had permitted admission against all the sanctioned seats by the unaided minority institution on its own. The Division Bench in the case of Sankalp Institute of Education (supra) has also referred to the judgment of Hon'ble Supreme Court in the case of Paramati Educational and Cultural Trust and others (supra) and has observed that the issue in Paramati Education and Cultural Trust (supra) was not in respect of ''seat sharing'; rather it was in respect of validity of clause 5 of Article 15 of the Constitution of India. In the case of Sankalp Institute of Education (supra) the Division Bench has further observed that the judgment by the Division Bench in the case of Special Appeal Defective No.376 of 2014 is based on the concession of the learned Standing Counsel appearing for the State-respondents, who had submitted that the said case was covered by the judgement of Hon'ble Supreme Court in the case of Paramati Education and Cultural Trust (supra). It has further been held in the case of Sankalp Institute of Education (supra) that the decision in the case of Paramati Education and Cultural Trust (supra) will have a bearing only on minority institutions running under graduate courses (schools) where aided and unaided minority institutions have an absolute right to admit students of their choice without any intervention of the State. While discussing the aforesaid judgments, the Division Bench in the case of Sankalp Institute of Education (supra) concluded that the petitioners in the said case were entitled only to fill in 50% seats on their own and remaining 50% seats were liable to be filled in through selection process which was conducted by the State or its agencies. It has further been held that there is no leverage or liberty to an unaided minority institution imparting higher education to fill up the unfilled seats which could not be filled in through common entrance test organized by the State or its agency and that the petitioner in the said case had transgressed and overstepped the quota prescribed for filling up the seats on its own.

A careful reading of the judgment rendered by the Division Bench in the case of Sankalp Institute of Education (supra) goes on to show that this pronouncement is in departure of the judgments rendered by two Division Benches, (1) Special Appeal Defective No.376 of 2014 and (2) Special Appeal No.605 of 2011 rendered on 25.09.2014 and 29.08.2011 respectively.

Thus, the order dated 09.02.2017 delivered by Hon'ble Single Judge in the case of Shama Parveen (supra) and the judgment rendered by the Division Bench in the case of Sankalp Institute of Education (supra), lay down that the recognized unaided private minority institutions imparting eduction in the field of higher education, which would include professional and technical education as well, are not immune from regulation of the State Government to the extent it requires an arrangement of ''seat sharing' between the State and such institutions. Whereas the judgments rendered by the Division Benches in Special Appeal No.605 of 2011 and Special Appeal Defective No.376 of 2014 have clearly held that such ''seat sharing' or appropriation of quota for admission is impermissible.

Accordingly on an overall analysis of the judgments, which have been referred to herein above in the preceding paragraphs, the position of law which emerges is that of uncertainty on the issue relating to rights of unaided recognized minority institutions to admit students to courses of higher education, including professional and technical courses, on their own. This situation, hence, warrants reference of the issue to be decided by a larger Bench for removing the existing uncertainty.

I find yet another reason to refer the issue, which is engaging attention of this Court in this case, to a Larger Bench for decision as the order dated 09.02.2017 is an interim order (though it has the trappings of final pronouncement), more so as the State Government has issued the Government Order dated 25.05.2017 in compliance of the aforesaid interim order dated 09.02.2017 for its implementation throughout the State. Further, considering the public interest at large, the case of Shama Parveen (supra) has been referred to a P.I.L. Bench. The case of Shama Parveen (supra) has, in fact, been ordered by Hon'ble Single Judge to be registered as a Public Interest Litigation and a request has been made for nomination of the Bench competent to hear the said Public Interest Litigation.

Accordingly, in view of the conflicting opinions expressed by the Division Benches in its judgment dated 29.08.2011, Special Appeal No.605 of 2011 and by another Division Bench in its judgment dated 25.09.2014 in Special Appeal Defective No.376 of 2014 on one side and the judgment rendered by the third Division Bench dated 10.03.2017 in the case of Sankalp Institute of Education (supra), Special Appeal Defective No. 92 of 2017 on the other, I request Hon'ble the Chief Justice to refer the following issues for decision by a larger Bench of such number of Hon'ble Judges which is deemed proper by Hon'ble the Chief Justice in the facts and circumstances of the present case:

(i) As to whether the regulatory measures, in the matter of admissions to unaided recognized minority institutions, to be taken by the State Government will be confined to the extent of ensuring fair and transparent procedure of admission to be adopted by the minority institutions without compromising with the merit in admissions to the courses of higher education, which will include professional and technical education, or it will extend to the extent of compelling the minority institutions to ''seat sharing' or appropriation of quota of seats with the State Government, even in absence of any ''consensual arrangement between the unaided private minority institutions and the State'?

(ii) Which of the Division Bench judgments referred to herein above, either the judgment dated 25.09.2014 (Special Appeal Defective No. 376 of 2014) and the judgment dated 29.08.2011 (Special Appeal No. 605 of 2011) or the judgment dated 10.03.2017 in the case of Sankalp Institute of Education (supra), enunciates the correct law in respect of right of unaided recognized minority institutions to admit students in the background of the law pronounced by Hon'ble Supreme Court in the cases of T.M.A. Pai (supra) and P.A. Inamdar (supra) ?

(iii) What is the extent of authority/power of the State Government to regulate admissions of students to unaided recognized minority institutions imparting education in the courses of higher education, which includes professional and technical courses, in view of the protection available to minority institutions under Article 30(1) of the Constitution of India?

In view of the urgency in this case, office to place forthwith record of this case before Hon'ble the Chief Justice for nomination of a Larger Bench of such strength as may be deemed fit and proper.

Order Date :- 28.8.2017

Sanjay