H.M.A. Rizvi Parshikshan ... vs State Of U.P. And 2 Others
2017 Latest Caselaw 4001 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 17.08.2017
 
Delivered on : 06.09.2017
 

 
Case :- WRIT - C No. - 35719 of 2015
 
Petitioner :- H.M.A. Rizvi Parshikshan Sansthan
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- S.M. Pandey
 
Counsel for Respondent :- C.S.C.,Vivek Varma
 
Connected with
 

 
1. Case :- WRIT - C No. - 66855 of 2015
 
Petitioner :- Mumtaz Jahan And 2 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Mohammad Akram
 
Counsel for Respondent :- C.S.C.,Vivek Verma
 

 
2.Case :- WRIT - C No. - 35787 of 2015
 
Petitioner :- Waseem Turki Muslim Degree College
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- S.M. Pandey
 
Counsel for Respondent :- C.S.C.,Vivek Verma
 

 
3. Case :- WRIT - C No. - 35788 of 2015
 
Petitioner :- Hashmi Girls Degree College Thru' Manager Hakeem S. Hashmi
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- S.M. Pandey
 
Counsel for Respondent :- C.S.C.,Vivek Varma
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri R.A. Akhtar, learned counsel for the petitioner, Shri Som Narayan Mishra, learned Standing Counsel for the first respondent and Shri Vivek Varma, learned counsel for the second and third respondents.

In the abovementioned Writ Petitions in question, as common question of law has been engaging the attention of this Court, the Writ Petitions are being decided collectively and Writ Petition No.35719 of 2015 is being treated to be leading case.

Brief facts giving rise to the present Writ Petition is that petitioner institution namely HMA Rizvi Parikshan Sansthan Chandpur, District Bijnor (hereinafter referred to as the 'Institution) is a self financed minority institution being run and managed by a educational society known as Haleema Marya Rizvi Educational Society, District Bijnor, which is registered under the Societies Registration Act, 1860. Petitioner's Institution is running Bachelor of Education (B.Ed.) Course under self finance scheme after getting recognition from the National Council for Teachers Education (in brevity 'NCTE'), Jaipur as well as the no objection certificate from the State Government wherein the Institution can admit hundred students for B.Ed. course, which is a self financing course.

The dispute that has impelled HMA Rizvi Parikshan Sansthan Chandpur, District Bijnor to be before this Court is that as per the policy of the State Government, Bundelkhand University, Jhansi was appointed to conduct Joint Entrance Test (C.E.T.) for B.Ed. Programme for the Academic Session 2014-2015 on the recommendation made by the Rohilkhand University, Bareilly for filling up 50% seats in the petitioner's Institution and in the said centralized counseling, in all 36 students out of 50% seats were recommended for being allotted seats for B.Ed. Course and for remaining 50%, petitioner's institution being minority institution was free to admit students.

The case has been set up by the petitioner that despite the fact that petitioner's institution being minority Institution and having its rights conferred under Article 30(1) of the Constitution of India is fully authorized to take admission of its own choice from the students who had participated in qualifying Joint Entrance Test conducted for B.Ed. Course, it had taken only 14 students out of 50% students allotted through counseling by the University and the remaining 50% seats has also been filled up by the Institution of its own choice under the Management quota. Much emphasis has been placed by the petitioner that all these 14 students have qualified the Joint Entrance Test and at no point of time, the merit was crucified.

The University, in its turn, has not at all proceeded to entertain the candidature of the aforementioned 14 students admitted by the minority institution on the terms that the petitioner's institution was not entitled to admit 14 students under the management quota as its quota was confined to only 50% and in view of this, the candidature of the said students could not be entertained.

Faced with such a situation, the petitioner institution was impelled to be before this Court and initially an interim order was passed by this Court on 26.06.2015 on which basis, 14 students, who claimed to be admitted by Joint Entrance Test conducted by Buldelkhand University, Jhansi were permitted to appear in the examination provisionally for the academic sesion 2014-15 which was scheduled to be commenced from 1st July, 2015.

The stand was taken by the University that being a minority Institution, the Institution can admit only 50% students of their own choice but in the present case, in the 50% quota that was required to be admitted under Joint Entrance Test even therein encroachment has been made by the petitioner's Institution and 14 students were admitted in this direction and as such it has been claimed that the same is impermissible and the University has resolved not to entertain the candidature of the said students.

In this backdrop, Shri R.A. Akhtar, learned counsel for the petitioner vehemently contended that being a minority Institution, the petitioner is free to admit students of its own choice including students of non-minority community and as such, the act and conduct of answering University is in violation of Article 30(1) of the Constitution of India as well as the law settled by the Hon'ble Apex Court in case of P.A. Inamdar vs. State of Maharashtra 2005(6) SCC 537. He has also placed reliance on the judgement passed by this Court in Writ Petition No.35328 of 2015 (Nayab Abbasi Girls Degree College vs. State of U.P. and others), which was allowed vide order dated 10.05.2016 asking the University to accept the candidature of the nine non minority community candidates to the petitioner Institution. The relevant paragraph 17 is extracted below:-

"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."

In this backdrop, he has vehemently contended that in fact the University concerned had utterly failed to provide 50% students to the Minority Institution and only 36 students have been sent for admission in the academic session 2014-15 and even situation is more worse in the Session 2015-17 as the Institution has not received any grant or aid either form the Central Government or from the State Government and in such a situation, it is difficult to meet out the expenses towards the salary of teachers, administrative staff and other staff including driver and class IV employees, building maintenance, library, computer, stationery and vehicles etc., the said expenses could only be met from the students fee only and in case full strength of students are not permitted to be admitted by the University, then Institution in question would close down. He has also submitted that in this scenario, the State Government has issued Government Order dated 14.12.1999 wherein it was incumbent upon the University to provide full strength of candidates to non-government, self aided institutions and in the event, the seats still remain vacant, such colleges may demand the remaining students and in case the seats remains vacant, the Institution would be at liberty to take admission on vacant seats on their own choice. He further argued before this Court that at present there is neither any impediment nor any provision enforceable at present to restrict the petitioner Institution to only 50% seats out of the total 100 seats sanctioned by a Central Statutory Body i.e. National Council for Teacher Education (NCTE) and the only logical restriction that can be imposed by the University is to ensure that the norms and standards prescribed by the National Council for Teacher Education for admission in B.Ed. course have been followed or not and in the present case, the Institution in question is on the better footing precisely the 14 students, who were got inducted as regular students, were all qualified in Joint Entrance Test (JET) and as such at no point of time there was any deviation of the norms and standards prescribed by the NCTE.

Per Contra, Shri Vivek Varma, learned counsel for the University has vehemently opposed the Writ Petition and submits that the admission to private unaided/aided colleges whether minority or non minority imparting education for Bachelor of Education Course, recognized by NCTE and affiliated to the University can be made through the entrance examination conducted by the University providing list of students through counseling to the colleges but at no point of time, the University has provided list in respect to such 14 students and as per their own wisdom, the Institution in question has proceeded to induct the students at their own risk. He further made submission that, on its face value without any authority of law, the Institution has proceeded to exceed its quota and once the quota in question has been exceeded, then in such eventuality, the University is absolutely right in refusing to entertain such students, and further under the centralized system, it was not at all obligatory to send list of candidates to the strength of 50% setas for pursuing education in petitioner's institution once the students, who have proceeded to undertake the counselling, have chosen not to chose petitioner's institution for pursuing their B.Ed. Course and in such a situation, the University cannot compel to the students to take admission in any particular Institution if they had not given any preference to the Institution in question and as such, he has contended that in case, the petitioner's Institution does not provide the basic amenities, infrastructure or academic environment including good staff and even in worst case if no candidate opt for the particular Institution, then in such contingency, the Institution does not have right to induct or to exceed 50% quota earmarked to it.

Heard rival submissions and perused the record.

Before Court proceeds to take final call in the matter, the relevant statutory provisions holding the field are being looked into. The National Council for Teacher Education Act. 1993 (Act No. 73 of 1993) was promulgated by the Parliament and was notified finally on 29.12.1993. The aims and objects of the Act are reproduced as under:

An Act to provide for the establishment of a National Council for Teacher education with a view to achieving planned and co-ordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matter connected therewith.

Section 2 of the said Act contains definition clause relating to various words, used in the Act. Sub-section (c) of Section 2 of the Act defines the meaning of 'recognised institution.

Section 2 (h) of the Act, defines the word, 'prescribed', Section 2 (i) of the Act defines the word, 'recognised', Section 2 (j) defines the word, 'regional committee' and Section 2 (k) of the Act defines the word, 'regulations'. Section 2 (1) of the Act defines the word, 'teacher 'education', Section 2 (m) of the Act defines the word, 'teacher education qualification', Section 2 (n) of the Act defines the word, 'University'. For convenience, relevant sub-sections of Section 2 of the Act is reproduced as under:

(h) "prescribed" means prescribed by rules made under Section 31;

(i) "recognised institution" means an institution recognised by the Council under Section 14;

(j) "Regional Committee" means a committee established under Section 20;

(k) "regulations" means regulations made under Section 32;

(l) "teacher education" means programmes of education, research training of persons for equipping them to teach at pre-primary, primary, secondary and senior secondary stages in schools, and includes non-formal education, part-time education, adult education and correspondence education;

(m) "teacher education qualification" means a degree, diploma or certificate in teacher education awarded by a University or examining body in accordance with the provisions of this Act;

(n) "University" means a University defined under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and includes an institution deemed to be a University under Section 3 of that Act;

Section 12 of the Act deals with the functions of the Council. Under Section 3 of the NCTE Act, the Central Government by notifying in the Official Gazette, established a Council called as the National Council for Teacher Education, in short NCTE. Section 12 lays down various functions of the Council.

Section 13 relates to inspection of the institution which are recognised or proposed to be recognised by the Council to impart education like B. Ed. courses etc. Section 14 mentions mandatory condition for recognition of institutions offering course or training in teacher education. Under Section 15 of the NCTE Act, the regional committee has been empowered to grant recognition to start new courses. The embargo has been placed for the examining bodies like universities provided no affiliation shall be granted unless recognition has been granted by the regional committee of the NCTE. Section 17 of the NCTE Act, lays down that in case institution is recognized by the regional committee or the NCTE the university concerned to which an institution has been affiliated shall derecognise such institution. Section 32 of the NCTE Act, empowers the council to frame regulation by publication in official gazette not inconsistent with the provisions of the Act and Rules made thereunder. Relevant portion of Sub-section (2) of Section 32 of the NCTE Act, may be reproduced as under:

"32 (2).(f) conditions required for the proper functioning of the institution and conditions for granting recognition under Clause (1) of Sub-section (3) of Section 14;

(h) conditions required for the proper conduct of a new course or training and conditions for granting permission under Clause (a) of Sub-section (3) of Section 15"

In pursuance of power conferred under Section 32 of the Act, the council had framed regulations in the year 2002 which was amended in 2005 providing norms and standards for secondary teachers education programme (i.e., B. Ed. Course). Regulations, 2002 provides that duration of B. Ed. programme shall be at least one academic year and the one unit shall admit 100 students to impart B. Ed. education. The Regulation provides that candidates with at least 45 marks in Bachelor's/Master's Degree with at least two school subjects at the graduation level shall be eligible for admission to B. Ed. course. According to Regulation 2002, the admission is to be made either on the basis of marks obtained by qualifying examination or by the entrance examination conducted by the University/State Government to which the institution is affiliated. The relevant portion of Regulation 2002 is reproduced as under:

Appendix-7 Norms and Standards for Secondary Teacher Education Programme (B. Ed.)

2. Duration and Intake

a) The B. Ed. programme shall be of a duration of at least one academic year.

b) There shall be a unit of 100 students for ensuring optimum utilisation of physical and instructional infrastructure and expertise of the teaching staff. Division into appropriate batches may be done at the institutional level for effective curriculum transaction.

3. Eligibility

a) Candidates with at least 45% marks in the Bachelor's/Master's Degree with at least two school subjects at the graduation level are eligible for admission.

b) Admission should be made either on the basis of marks obtained in the qualifying examination or in the entrance examination conducted by the University/State Government, as per the policy of the State Government/University, to which the institution is affiliated.

c) There shall be reservation of seats for SC/ST/OBC, Handicapped, Women, etc. as per the rules of the concerned State Government.

The NCTE, under the title of Norms and Standards for Secondary Teacher Education Programme leading to Bachelor of Education (B. Ed.) Degree, provided that candidate possessing 50% marks either in the Bachelor's Degree and/or in the Master's degree or any other qualification equivalent thereto, shall be eligible for admission to the programme. The admission procedure has been maintained either on the basis of qualifying examination or the entrance test or any other selection process as per the policy of the State Government/U.T. Administration and the University. The relevant portion of the said Regulation is reproduced as under:

Norms and Standards for Secondary Teacher Education Programme leading to Bachelor of Education (B. Ed) Degree 3.0 Intake, Eligibility and Admission Procedure 3.1 Intake There shall be a unit of 100 students divided into two sections of 50 each for general sessions and not more than 25 students per teacher for a school subject for methods courses and other practical activities of the programme to facilitate participatory teaching and learning.

3.2 Eligibility 3.2.1. Candidates with at least 50% marks either in the Bachelor's Degree and/or in the Master's degree or any other qualification equivalent thereto, are eligible for admission to the programme.

3.2.2 There shall be relaxation of marks/reservation of seats for candidates belonging to SC/ST/OBC communities and other categories as per the Rules of the Central/State Government/U.T Administration concerned.

3.3 Admission Procedure Admission shall be made on merit on the basis of marks obtained in the qualifying examination and/or in the entrance examination or any other selection process as per the policy of the State Government/U.T. Administration and the University.

Regulation 3.2 provides for minimum marks which is 50%, earlier, it was 45%. However, it has been subjected to Regulation 3.3 which deals with the actual admission procedure. The admission has to be made based on qualifying examination/entrance examination. Such qualifying examination or the entrance examination has to be held as per the policy of the State Government. Thus, the examination can be held either by the State Government and in case the State Government decides, it can delegate such power to the Universities. The NCTE in its wisdom, has provided that admission procedure shall be in accordance with the policy decision taken by the State Government. Thus, instead of proceedings on its own, the NCTE has delegated its power to the State Government.

The State Government under the power conferred by Sub-section (5) of Section 28 of the Universities Act, framed the Regulation in the year 1987 under the title of Uttar Pradesh State Universities (Regulation of Admission to Courses of Instruction for Degree in Education In Affiliated, Associated and Constituent Colleges) Order, 1987, to regulate admissions in B. Ed. and M. Ed. courses. The universities were empowered to accept application or organise their own entrance test in pursuance of power conferred by para-6 and 7 of the Regulation 1987 which is reproduced as under:

6. Application for Admission.--(1) Every candidate for admission to B. Ed. classes shall apply in the manner hereinafter provided in the prescribed form to be obtained from the office of the Registrar of the concerned University on payment of Rs. 10 for each form. The last date for applying for admission shall ordinarily be the 31st day of May or such date in the month of June as the University may prescribe.

(2) The candidate shall send the application form by Registered post to the Registrar of the University;

(3) No application received in the office of the Registrar after such date as may be prescribed by the University in this behalf shall be entertained.

Examination for admission.--

(a) Every University shall organise its own combined admission examination for admission to B. Ed. courses in its affiliated, associated and constituent colleges. The admission examination of all the Universities shall be organised on one and the same date as may be fixed by the State Government.

In order to resolve the controversy in hand, it would be appropriate to consider the judgement of Hon'ble Apex Court, which holds the field in TMA Pai Foundation vs. State of Karnataka, reported at 2002 (8) SCC 481. wherein the questions raised was concerning fee structure of minority and non-minority educational institutions and whether private unaided professional colleges are entitled to fill up their seats to the full extent by their own method of admission. The Bench considering of eleven Judges of the Apex Court, answered eleven questions. The discussion on issue no.3 is relevant for our purpose. The issue is as follows:

"3. In case of private institutions, can there be government regulations and, if so, to what extent?"

As stated earlier, there were two facets of the matter, one was regarding fee structure and the second was regarding procedure of admissions. In the present matter, we are concerned with the procedure of admissions only. Paras 59 and 68 of the judgment have been pressed into service by the petitioners. Paras 58 and 66 are also relevant. These paras read as follows:-

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

59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.

..........................

66. In the case of private unaided educational institutions, the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation; these conditions must pertain broadly to academic and educational matters and welfare of students and teachers-but how the private unaided institutions are to run is a matter of administration to be taken care of by the management of those institutions.

67. We now come to the regulations that can be framed relating to private unaided professional institutions.

68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principle may be applied to other non-professional but unaided educational institutions viz. graduation and post graduation non-professional colleges or institutes."

In the said judgment, issue No. 5 (a)(b) dealt with the right of minority students, in the matter in following terms.

"Q. 5. (a) Whether the minorities' rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?

A. A minority institution may have its own procedure and method of admission as well as selection students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.

Q. 5. (b) Whether the minority institution's right of admission of students and to lay down procedure and method of admission, if any, would be affected any way by the receipt of State aid?

A. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribed bye-rules or 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 quo non-minority students. The merit may be determined either through a common entrance test conducted by the University or the Government concerned followed by counselling, or on the basis of an entrance test conducted by individual institutions- the method to be followed is for the university or the Government to decide. The authority may also advise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institution, it will be permissible for the Government or the University to provide that consideration should be shown to the weaker section of the society."

It so happened as stated by the Apex Court in its subsequent judgment that the judgment in Pai Foundation was understood by Union of India, various State Governments and educational institutions in different perspectives (as stated in para 1 of the subsequent judgment in Islamic Academy of Education Vs. State of Karnataka, reported at (2003) 6 SCC 697). The judgment of the Constitution Bench was rendered by Hon'ble Khare, C.J.I. on behalf of the majority of the Judges, while Justice Sinha wrote a separate judgment. As stated in para 2 of that judgment, it had become necessary to clarify judgment in Pai Foundation. The Court framed four questions for its consideration. These four questions are as follows:

(1) Whether the educational institutions are entitled to fix their own fee structure;

(2) Whether minority and non-minority educational institutions stand on the same footing and have the same rights;

(3) Whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent; and

(4) Whether private unaided professional colleges are entitle to admit students by involving their own method of admission.

While commenting on the common entrance test vis-a-vis minority institution, the Court observed in para 16 as follows:

"16. ....... Paragraph 68 provides that admission by the management can be by a common entrance test held by "itself or by the State/University". The words "common entrance test" clearly indicate that each institute cannot hold a separate test. We thus hold that the management could select students, of their quota, either on the basis of the common entrance 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 the State e.g. medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to all colleges of that type in the State. The option of choosing between either of these tests, must be exercise before issuing of prospectus and after intimation to the concerned authority and the committee set up hereinafter. If any professional college chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State. After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice-board of all colleges which have chosen to admit as per this test. A copy of the merit list will also be forthwith sent to the concerned authority and the committee. Selection of students must then be strictly on the basis of the merit as per that merit list. Of course, as indicated earlier, minority colleges will be entitled to fill up their quota with their own students on the basis of inter se merit amongst those students. The list of students admitted, along with the rank number obtained by the students, the fees collected and all such particulars and details as may be required by the concerned authority or the committee must be submitted to them forthwith. The question paper and the answer papers must be preserved for such period as the concerned authority or Committee may indicate. If it is found that any student has been admitted de hors merit, penalty can be imposed on that institute and in appropriate cases recognition/affiliation may also be withdrawn."

This judgment led to another judgment in P.A. Inamdar Vs. State of Maharasthra, reported at (2005) 6 SCC 537. This judgment became necessary, as stated in para 4 of Inamdar's judgment, since some of the main questions remained unsettled even after the judgment of the Constitution Bench in Islamic Academy (supra), this Bench framed four questions. Those four questions are as follows:-

(1) To what extent can the State regulate admissions made by unaided (minority or non-minority) educational institutions? Can the State enforce its policy of reservation and/or appropriate to itself any quota in admissions to such institutions?

(2) Whether unaided (minority and non-minority) educational institutions are free to advise their own admission procedure or whether the direction made in Islamic Academy (supra) for compulsorily holding an entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in light of the law laid down in Pai Foundation (supra)?

(3) Whether Islamic Academy (supra) could have issued guidelines in the matter of regulating the fee payable by the students to the educational institutions?

(4) Can the admission procedure and fee structure be regulated or taken over by the Committees ordered to be constituted by Islamic Academy (supra)?."

In the said judgment, following view has been taken:-

"136. Whether minority or non-minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different placed on the same or different dates and there may be a clash of date. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidably expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test ("CET" for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the students community from harassment and exploitation. Holding of such common entrance test followed by centralize counselling or, in other words, single-window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen.

137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure there for subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imported by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit -based admissions and preventing maladministration. The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the tripe tests, indicated herein above, can be taken over by the State substituting its own procedure. The second question is answered accordingly.

138. It needs to be specifically stated that having regard to the larger interest and welfare of the students community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralized and single-window procedure. Such a procedure, to a large extent, can secure grant of merit-based admissions on a transparent basis. Till regulations are framed, the Admission Committees can oversee admissions so as to ensure that merit is not the casualty." "

At this stage, it is relevant to indicate that the aforementioned judgement passed by the Apex Court in respect to admission in B.Ed. has been considered by Full Bench of this Court in Civil Misc. Writ Petition No.34114 of 2007 (Tuples Education Society and another vs. State of U.P. Through its Principal Secretary, Higher Education Government of Uttar Pradesh, Lucknow and another) and therein following view has been taken which is being extracted below:-

""A reference to all these three judgments makes certain things very clear. Firstly, the main judgment in Pai Foundation (supra) rendered by eleven Judges emphasized merit for admission, at the same time fairness and transparency. For determining merit, it is stated in para 59 that it is usually determined in the qualifying examination or school-leaving certificate followed by an interview or by a common entrance test. In para 68, it did not rule out the University or the Government to require, at the time of granting recognition to private unaided institutions, to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. What is most important is that this is stated in the first part of para 68. Therefore, even if this paragraph is split into two parts, as read in Inamdar's case, the first part itself permits a University to require a private unaided institution to give admissions on the basis of merit-based selection. It is stated that at the same time sufficient discretion be given to the management. In the present case, the Government Order permits the management of private unaided institutions to have 15% of the candidates of their own and non-minority institutions to have 50% candidates of their own. Thus sufficient discretion in the present case is already available. But the selection procedure is however done by the University. Besides, we cannot merely read paras 59 and 68. We must also read the answer of question no. 5 (b) to the question referred above in Pai Foundation (supra). The answer clearly permits such an admission test at the admission or at the entrance level. If it is so provided and University so insists thereon, it cannot be said to be bad in law. A Committee is constituted to oversee these admissions as per the judgment in Islamic Academy (supra). This is a temporary measure. Even para 155 of P.A. Inamdar (supra) permits the State Government to come out with appropriate legislation. The Committees regulating admission procedure and fee structure shall continue to exist under Inamdar's judgment (supra) until the regular arrangement is made.

45. In all these cases, the Apex Court was concerned with admissions to professional courses though with emphasise on engineering and medical admissions. The provisions of various State Acts and concerning those with degrees in B.Ed. and other educational courses were not before the Apex Court. The last judgment on this issue has permitted the State Government to come out with detailed well-thoughtout legislation. The Government Orders prescribing the procedure for admission and allowing the Universities to hold examinations at the University level held the field during the two relevant years. As pointed out earlier, this arrangement is not in conflict with the regulations framed by NCTE either. In the circumstances, the procedure laid down in these three judgments cannot, in any manner, lead the Court to hold the examinations held by the Universities to be bad in law. As read by us, once any such procedure for admission is prescribed, the private admissions on the basis of last qualifying marks cannot be permitted under the NCTE Regulation 3 (b) as well. That apart, Justice Tilhari Committee itself has given finding that the conduct of the Association of the private institutions was not fair, transparent and non-exploitiveness.

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

47. In view of the answers to these six issues, these two writ petitions, which are placed before us will be sent down to the concerned learned Single Judges for decision in the light of this judgment. The other writ petitions, which were connected with these two writ petitions, or whose papers were produced will be de-linked and placed before the concerned learned Single Judges for decision in accordance with the law laid down in this judgment.

48. There shall be no order as to costs. "

On the parameter of the judgment of Hon'ble Apex Court and as considered by Full bench of this court, as far as right of minority institution to fill up 50% seats is concern, same is not disputed. Minority colleges are entitled to fill up their quota with their own students on the basis of inter-se merit amongst those students who have undertaken common entrance test and stand on merit. The merit has to be determined through common entrance test. Merit list would be prepared and on the basis of the aforementioned merit, status list of the students alongwith their respective rank number and marks obtained by the said students, the fees to be collected and all such particulars and details as may be required be send to the concerned institution. Said procedure would balance merit based admission on transparent basis of even 50% of the students, who are to be admitted in minority quota and 50% in the institution concern from open category. Once State Government has resolved to hold common entrance test then even minority college will have to fill up their quota with their own students on the basis of the inter-se merit amongst those students. In such a situation as far as petitioner's institution is concern, it cannot be given authority to take its own examination and accord admission against 50% seats meant for open category

Moreover the same controversy has also been considered by by Single Bench of this Court in Writ Petition No.24853 of 2016 (Sankalp Institute of Education vs. State of U.P. and others) decided on 21.12.2016. The relevant paragraphs of the said judgement are being quoted below:-

"Having due regard to the law and reasons stated herein above, the answers to the question posed is as follows:

Q.1 Whether unaided/self financed minority institution have right to admit students of their choice by adopting a mechanism of their own, thus, selecting students outside the policy of the State provided through a single window system.

A. No

Q.2 Whether single window system i.e. CET followed by centralized counselling in admitting students for B.Ed. course infringes upon the right of the minority institutions as contemplated under the Article 19(1)(g) and 30 of the Constitution of India.

A. No.

Q.3 Whether minority institutions imparting B.Ed. course are entitled to claim parity with the Government Order dated 10 June 2015 issued in respect of B.T.C. Course.

A. No.

Q.4. Whether minority institutions imparting B.Ed. course are entitled to exemption under Section 2 of The Uttar Pradesh Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006;

A. No.

Q.5. Whether counselling university is bound to provide cent percent students to the institutions.

A. No.

Finally, whether the students who were illegally admitted by the institution against the policy of the State and who have been declined permission by the University to appear in the B.Ed. examination are entitled to compensation. In S. Nihaal Ahmed vs. The Dean Velammal Medical College Hospital and Research Institute and others21 wherein, Supreme Court relied on Chandigarh Administration and another vs. Jasmine Kaur and others22, held that if a candidate is not selected during a particular academic year due to the fault of the institution and in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, the students are entitled to damages/compensation. Accordingly, in the facts of the present case, the students were wrongly admitted and have been deprived by the University from taking their B.Ed. examination are entitled to compensation, which is assessed at Rs. 3 lac payable to each student by the delinquent institutions within three months from date, failing which the affiliating University shall ensure that the damages/compensation is received by the students. In the event of non-compliance, it will be open for the University to proceed in accordance with law against the institutes including withholding affiliation after due notice."

The aforementioned judgement has been upheld by the Division Bench of this Court in the case of Sankalp Institution of Education, Ghaziabad vs. State of U.P. and others 2014 (4) ADJ 1. Relevant extract of the said judgement are being quoted below:-

"Once categorical mention has been made that there would be no diversion from the policy of 50% admission by common entrance test and 50% admission by the group of institution on merit on the strength of examination conducted, then G.O. Dated 14.02.1999 would not at all come to the rescue or reprieve of petitioners' institution, for the reason that the said government order had been issued prior to issuance of Government Order dated 09.05.2014 and under Government Order dated 09.05.2014 categorical mention was made that percentage provided for be not violated and as per the petitioner themselves, said policy is being followed uniformly till date."

In such a situation once the admission in question is governed by holding of examination by the counselling University, same certainly is in the realm of policy decision of the State, in consonance with the provisions as contained under Regulation framed under NCTE Act as well as the provisions of Section 28 of U.P. Universities Act read with U.P. State Universities (Regulation of Admission to Courses of Instruction for Degree in Education in Affiliated/Associated/Constituent Colleges) Order 1987. From 2007-08, State level examination is provided, as a single window system and to the minority institution 50% seats have been conceded and in view of this thought process that minority institutions have right to admit cent percent students cannot be subscribed by this Court.

In the aforesaid facts and circumstances, this Court is of the considered opinion that once the quota in question has been fixed, then in any eventuality the said quota in question could not have been exceeded and overstepped and in view of this, the inclusion of 14 students is totally unwarranted and the University has rightly acted well within its right in not entertaining the admission of aforesaid students as the same is in utter violation of law and as such, no relief can be accorded to the petitioner.

Writ Petition sans merit and the same is dismissed and accordingly all the connected writ petitions are also dismissed.

Order Date :- 06.09.2017

A. Pandey