Nidhi Goel vs Govt. Of Nct Of Delhi And Ors.
2003 Latest Caselaw 770 Del

JUDGMENT

Vikramajit Sen, J.

1. Rule.

2. The Petitioner's grievance is that she had gained admission to Maharaja Agrasen Institute of Technology (Respondent No.3) under the five per cent Management quota. She had paid the fees on 23.6.2003. Subsequent thereto the Guru Govind Singh Indraprashtha University had issued a direction that students above 6180 in the merit list pertaining to general candidates would not be entitled to admission in any of the colleges affiliated to the University. This directive of the University is stated to have been predicated intern on a direction received by the University from the Government of the N.C.T. of Delhi to the effect that even in regard to the five per cent Management seats, the Management must adhere to the merit in the Common Entrance Test.

3. Respondent No.3 is not opposing the Petitioner's case. On this side of the bar, reliance is placed on the following paragraphs of the decision of the Hon'ble Supreme Court in T.M.A. PAI FOUNDATIONS AND OTHERS Versus STATE OF KARNATAKA AND OTHERS reads as follows:

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

Surrendering the total process of selection to the State is unreasonable, as was sought to be done in Unni Krishnan scheme. Apart from the decision in St. Stephen's College v. University of Delhi which recognized and upheld the right of a minority aided institution to have a rational admission procedure of its own, earlier Constitution Bench decisions of this Court have, in effect, upheld such a right of an institution devising a rational manner of selecting and admitting students. 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 principles may be applied to other non-professional but unaided educational institutions viz. graduation and post graduation non-professional colleges or institutes.

In such professional unaided institutions, the management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/university subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers.

It is well established all over the world that those who seek professional education must pay for it. The number of seats available in government and government-aided colleges is very small, compared to the number of persons seeking admission to the medical and engineering colleges. All those eligible and deserving candidates who could not be accommodated in government colleges would stand deprived of professional education. This void in the field of medical and technical education has been filled by institutions that are established in different places with the aid of donations and the active part taken by public-minded individuals. The object of establishing an institution has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture. In order that this intention is meaningful, the institution must be recognized. At the school level, the recognition or affiliation has to be sought from the educational authority or the body that conducts the school-leaving examination. It is only on the basis of that examination that a school-leaving certificate is granted, which enables a student to seek admission in further courses of study after school. A college or a professional education institutions has to get recognition from the university concerned, which normally requires certain conditions to be fulfillled before recognition. It has been held that conditions of affiliation or recognition, which pertain to the academic and educational character of the institution and ensure uniformity, efficiency and excellence in educational courses are valid, and that they do not violate even the provisions of Article 30 of the Constitution; but conditions that are laid down for granting recognition should not be such as may lead to governmental control of the administration of the private educational institutions."

4. On behalf of the Government and the University, reliance is placed on paragraphs 45 & 58 which reads as follows:

"In view of the discussion hereinabove, we hold that the decision in Unni Krishnan case insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Governments etc. are overruled.

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."

5. It is the case of the Management that they charge all students a uniform fee of approximately 55,000/- except in cases where the scholarship or any financial assistance is granted. I fail to appreciate what discretion is granted to the Management if, even within their five per cent allocation, they have to strictly adhere to the standing of candidates in the merit list.

6. In this case as in almost all other cases, it has become the practice and norm that the result in the CBSE or the ICSE is given no credence other than it is treated as a mere eligibility criteria. In CW No.4502/2003 entitled as Smt.Tara Wati Versus S.C.E.R.T. & Ors., decided on 28th July, 2003, I had observed that - "India is the repository of learning from the most ancient times but today we are a nation fixated with holding examinations. C.B.S.E. and I.C.S.E. Certification are not enough to get our students into most colleges and IITs; and University Degrees are of little value for entering post graduate courses within the same University. In the bargain, we are reducing our students into examination taking automations and there is a total shift from development of a comprehensive personality". Holding of Entrance Tests is a lucrative source of income to the educational institutions and there is every possibility that this is why such Tests are conducted more often than not. This is the public perception and complaint. In the present case, it has been disclosed that approximately 19,000 persons appeared before the Common Entrance Test only for B.Tech course. To avail of the opportunity to appear in the Common Entrance Test, in which as I have already observed the performance in the School Leaving Examination recedes to the background, these candidates have to pay approximately Rs. 650/-. Once the candidate is called for counselling, he has to pay further Rs.200/-. Of course the expenses that are entailed in conducting examinations and interviews is to be substracted from this figure. By simple computation the gross income received by the University comes to approximately Rupees one crore, that too only in respect of B.Tech course, which is one amongst fifteen other disciplines offered by it. Keeping in mind that students apply for multiple courses, in different Universities and Colleges, the outflow from the family purse is heart rending. In these premises also I think it is incumbent on the University to indicate in bold and prominent print the number of seats that are available, under each category or reservation, so that an aspiring student may be able to assess his chances of success before spending money on sitting for Entrance Tests. When the number of courses to which aspiring students apply is considred in totality, the income reaped assumes staggering and astronomical proportions.

7. The gravamen of the judgment in T.M.A. Pai Foundation case (supra) is that private enterprise should be encouraged even in the field of education. This represents a paradigm shift away from crippling Government spending in the realm of education at the post school level. Privitisation is not feasible unless some incentive or reward is available in this sector. It is for this reason that allocation of the five per cent seats was carved out either to enable the Management to collect some profit for its efforts, or to entitle the Management to give admission as per their discretion. In the present case, the Management submission is that all the students who have been given admission in its 5% quota find mention in the Common Entrance Test. The counsel for the Petitioner has boldly stated that she is the niece of one of the trustees of the Management. Even if this is so, I find nothing irregular in it. Some incentive or advantage or prerogative must be available to societies or individuals who have entered into the field of education, provided standards are maintained, and provided 85% or 95% (as the case may be) of the general public benefit from their enterprise and effort.

8. It is in this background that the present case should prima facie be looked at. The Petitioner possesses the requisite eligibility and has obtained a ranking of 10754 in the Common Entrance Test. The University has dis-allowed her admission because it has indicated that candidates in the merit list must be granted admission in the precedence of their position therein, even in respect of the Management's quota.

9. If such direction of the NCT and the University is to be implemented, and the Management is constrained or enjoined to grant admission even in respect of its five per cent Management quota strictly in accordance with the merit list, the discretion which the Hon'ble Supreme Court has found salutary to vest in the Management would immediately disappear. The directions of the University, as it presently stands, is that only those candidates below 6180 in the Merit List in the General Category can be given admission, even in the management quota, although the directions of the Respondents extends to 18000 approximately for some others categories.

10. In these circumstances, a prima facie case exist. The balance of convenience is in favor of the Petitoner, who shall suffer irreparable loss if not admitted to the current academic year. The Petitioner falls within the merit list even though counsel for the University is at pains to draw my attention to the fact that this is only a merit list and not a pass list. She has fared well in the C.B.S.E. having obtained 68% in English, 94% in Mathematics, 81% in Physics, 71% in Chemistry and 91% in Computer Science.

11. The Respondents are accordingly directed to grant admission to the Petitioner for the current academic year. This will not create any equities in favor of the Petitioner and her pursuing the course of study will be subject of the outcome of the Writ Petition.

C.M.No.8265/2003

12. Replies, if any, be filed within four weeks.

13. Renotify on 13.10.2003.