शिमला। प्रदेश में चल रहे निजी शिक्षण संस्थानों के कारनामों का प्रदेश हाईकोर्ट में भंडा फूट गया है।सरकार ने हाईकोर्ट में खुलासा किया कि इन निजी संस्थानों में चल रहे कोर्सों के साल का रिजल्ट पांच प्रतिशत से भी कम रहा है।जबकि बड़ी कक्षाओं को रिजल्ट 15 से 20 प्रतिशत तक का रहा है।सरकार ने बताया कि पैसों की खातिर मेरिटको दरकिनार कर प्रवेश दे दिया गया है। जिससे शिक्षा के स्तर नीचे आ जाएगा।
यही नहीं इन संस्थानों ने सरकार को ये ब्योरा भी नहीं दिया कि कितने दाखिले किस आधार पर हुए है।प्रदेश में चल रहे 16 निजी विवि,एक निजी इंजीनियरिंग कॉलेज,12 बी फार्मेंसी कॉलेज,9मैनेजमेंट कॉलेज,25 पोॅलीटैक्निक और129आईटीआई की ओर से मिल कर सरकार के खिलाफ हाईकोर्ट में याचिका दायर कीग ई थी कि इन संस्थानों में ढेरों सीटें खाली रह गई है।इन्हें मैनेजमेंट कोटे से भरने दिया जाए। ये सीटें खाली इस लिए रह गई क्योंकि कम स्टूडेंट मेरिट क्वालीफाई कर पाए।
इन निजी शिक्षण संस्थानों ने अजीब दलील दी कि अगर सीटें खाली रहेंगी तो संस्थान घाटे में चले जाएंगे और इन्हें बंद करना पड़ेगा। इसलिए या तो सीटे भरनी दी जाए याफिर सरकार नुकसान की भरपाई करे।इनशिक्षण संस्थानों ने स्वायता का हवाला भी दिया।लेकिन प्रदेश हाईकोर्ट के मुख्य न्यायाधीश जस्टिस मीर अहमद मंसूर और जस्टिस त्रिलोक चौहान ने इनकी याचिका को खारिज की दिया।
नीचे पढ़े पूरी जजमेंट और जाने निजी शिक्षण संस्थानों का खेल।
High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 7688 of 2013 a/w CWP No. 840
of 2014
Judgment reserved on: 8.7.2014
Date of Decision : July 23, 2014.
1. CWP No. 7688 of 2013
H-Private Universities Management Association (H-PUMA)
…Petitioner
Versus
State of Himachal Pradesh and othe rs . …Respondents.
For the petitioner : Mr. R.L. Sood, Senior Advocate, with
Mr. B.C.Negi, Advocate.
For the respondents : Mr. Shrawan Dogra, A.G. with
Mr. Romesh Verma, Mr. V.S.Chauhan,
Addl.A.Gs and Mr. J.K.Verma and
Mr. Kush Sharma, Dy. A.Gs, for
respondents No. 1 & 2.
Mr. Dilip Sharma, Senior Advocate with
Mr. Manish Sharma, Advocate, for
respondent No.3.
2. CWP No. 840 of 2014
Private Technical Institution’s Associati on Himachal Pradesh and
others. …Petitioners
Versus
State of Himachal Pradesh and othe rs . …Respondents.
For the petitioners : Mr. R.L. Sood, Senior Advocate, with
Mr. Ajay Mohan Goel and Mr. Arjun K.
Lall, Advocates.
For the respondents : Mr. Shrawan Dogra, A.G. with Mr.
Romesh Verma, Mr. V.S.Chauhan,
Addl.A.Gs and Mr. J.K.Verma and Mr.
Kush Sharma, Dy. A.Gs, for respondent
No. 1.
Mr. Tara Singh Chauhan, Advocate, for
respondent No.2
Mr. Vijay Arora, Advocate, for
respondent No.3.
Coram
The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon’ble Mr. Justice Ta rlok Singh Chauhan, Judge.
Whether approved for reporting ? Yes
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
2
Tarlok Singh Chauhan, Judge
Though the petitioners have claimed various reliefs in the
writ petitions, however, during the course of arguments, the petitioners
have confined their claim for issuanc e of writ of ma ndamus directing
the respondents to allow the petition er-institutions to fill up the seats
which remained vacant in various technical courses being offered by
them after admitting the candidates offered by respondent No.2-University by initiating process in this regard simultaneously with the
process of admission to be initiated by the respondent No.2-University
for making admissions to various technical courses in the institutions
affiliated with it and have also questioned the fee structure fixed by
respondent No.2-University.
2. The petitioners in both the cases are an association
consisting of institutions imparting technical education. It is contended
by the learned counsel for the pe titioners that earlier the private
technical institutions were permi tted to admit the students in the
technical courses in accordance with the guidelines prescribed by the
All India Council for Technical Educat ion (for short ‘AICTE’) and further
it was provided that in case some of the seat remain vacant after
counselling, the same would be filled up by adopting the criteria
mentioned therein by the College ma nagement. In other words, there
was a provision that t he College management could fill up the vacant
seats by adhering to the eligibility qualification criteria mentioned in
the prospectus which were those eligibility qualific ation criteria as was
laid down by the AICTE, beca use the respondents No. 1 and 2
otherwise could not lay separate or different eligibility qualification
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
3
criteria for admission to technica l courses in view of the statutory
provisions contained in Section 10 (i) of the AICTE Act which provides
that one of the functions of the AICTE is to lay down norms and
standards for courses, curricula, phys ical and instructional facilities,
staff pattern, staff qualifications, q uality instructions, assessment and
examinations. Now the respondent No.2 has issued a communication
dated 6.12.2013 on the subject, “Admission for B.Tech (direct
entry/literal entry), B-Pharma (direct entry/literal en try), MCA, MBA,
M.Tech and M-Pharma in the Government of private affiliating
institutions of Himachal Pradesh Technical Univer sity, Hamirpur for the
Session 2014-15”, which would demo nstrate that for admission to
B.Tech first year direct entry course, the criteria will be merit of
rank/score obtained in JEE (mai n)-2014 and that the aspirant
candidates have to apply only th rough JEE Main, 2014 online between
15.11.2013 to 26.12.2013 for appearing in the Joint Entrance
Examination, 2014 to be conducted by JEE Apex Board. It has further
been mentioned that the University of its own will not conduct any
separate test for admission to B.Tech first year direct entry. Similarly,
for the purpose of admission to B-Phar macy first year direct entry, it is
mentioned that the admission criteria shall be merit of score/marks
obtained in a Common Entrance Test to be conducted by respondent
No.2-University. It is further mentioned therein that the desirous
candidates will have to apply on the prescribed application form
available in the prospectus to be issued by the University in due course
of time for appearing in t he Common Entrance Test.
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
4
3. Similarly, for the purpose of admission to MBA course, it is
mentioned that the criteria of admission shall be meri t of rank/score
obtained by the candidate in CMAT, 2014 to be conducted by AICTE,
New Delhi. As per communication, t he aspirant candidate shall have to
apply online through AICTE between 1.11.2013 to 12.1.2014 for
appearing in a Common Entrance Test, 2014-15 (second test) to be
conducted by AICTE, New Delhi. It is also mentioned in the
communication that the Un iversity will not conduct any separate test for
MBA, however, the candidates appearing in CMAT, 2014 will have to
apply separately on the prescribed application form available in the
prospectus to be issued by the Univer sity in due course of time for
seeking admission in aff iliating institutions of the University on the
basis of the marks of rank/score obtained in CMAT, 2014.
4. For the purpose of admission to M.Tech courses, it is
mentioned that the admission shall be on the basis of rank obtained by
a candidate in GATE, 2014 to be conducted by IIT Kharagpur. It is
further mentioned that the candidates appearing in GATE, 2014 will
have to apply separately on the prescribed application form which has
to be provided in the prospectus to be issued subsequently by the
University for seeking ad mission in the affiliating institutions of the
University on the basis of the marks of rank/score obtained in GATE,
2014. Similarly, as far as the ad mission to M-Pharmacy course is
concerned, the criteria of admission as mentioned in the above
communication are marks of rank/sco re obtained in GPAT, 2014 to be
conducted by AICTE. It is further me ntioned therein that the aspirant
candidates shall have to apply to appear in the said test for AICTE
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
5
within the dates mentioned therein and the University shall not be
conducting any independent examination in this regard and shall make
admissions on the basis of marks of rank/score obtained by the
candidates in the above mentioned ex amination, for which purpose the
candidate shall have to apply separately on the prescribed application
form which has to be provided in the prospectus to be issued
subsequently by the University. For admission to MCA course, the
criteria of admission mentione d is merit obtained in a Common
Entrance Test to be conducted by Himachal Pradesh University,
Shimla and for this purpose, the respondent No.2-University shall not
to be conducting any se parate examination, however, the candidates,
who appear in the Common Entrance Test to be held by Himachal
Pradesh University shall have to separately apply for admission on
prescribed application form which has to be provided in the prospectus
to be issued subsequently by th e respondent No.2-University.
5. Learned counsel for the petiti oners argued that now in
view of the instructions issued on 6.12.2013, the Colleges are
mandatorily required to take students from the merit list prepared by
the University after conducting various Common Entrance Tests (for
short ‘CET’). It is also ar gued that over the years, due to this restriction
on admitting students only through th e merit list prepared consequent
to the CET, seats remain vacant in th e institutions for want of qualified
candidates. It is further submitted t hat the members of the Association
cannot admit students either on their own or through any other
agencies in view of the norms and guidelines laid down by the
respondents.
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
6
6. The respondent No.1 has sought to justify its stand by
filing reply in which following prelimin ary objections have been taken:
(i) That 16 Private Universities, 1 Private Engineering
Colleges, 12 Bachelor of Pharmacy Private Colleges, 09 Private
management Colleges and 25 Private Polytechnics exist in the State
alongwith 129 No’s of Indu strial Training Institute in Private Sector. The
State Government in order to ensure that the students are not
subjected to multiple entrance test s as well to ensure admissions to
these institutions are made in a fa ir and transparent manner, decided
that the respondent No.2 Universi ty shall admit students to B.Tech
programmes in its constituent Colleges and affiliated Private
Engineering Colleges through the common entrance test i.e. JEE
(Mains). Accordingly, the Registra r of respondent No.2-University
informed all the Principals (Government and Private) that admissions
to B.Tech. Degree Programmes in Government and Private
Engineering Colleges shall be made on the basis of merit/marks
obtained by the candidate(s) in the Joint Entrance Exam (JEE Main-2013) being conducted by the JEE Apex Board. This information was
also brought to the notice of general public thro ugh print and electronic
media.
(ii) It is submitted that from variou s sources it has come to the
notice that large number of ineligib le candidates has been allowed
admissions by these institutions, details of which are as under:
(a) The then H.P. Regulatory Co mmission had informed that
against total number of 6520 seats in Private Universities in
B.Tech Courses, total 3200 candidates were admitted by them
including 305 ineligible candidates. Besides, private
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
7
Universities have also admitted 308 students in M.Tech., MBA,
MCA, M. Pharmacy and B. Pharmacy who are not meeting
AICTE norms as per admitted
(b) H.P.Technical University (Respondent No.2) has
informed that the admission details are not being sent by these
institutions despite repeated re minders and it reported that
1490 invalid admissions have been made by these private
institutions. Private Technical In stitutions Association vide their
letter dated 18.09.2013 and 21.09.2013 has admitted that 4405
students have been admitted in B.Tech. Diploma, B. Pharmacy,
M. Pharmacy, M.Tech and MBA without entrance test (with
minimum eligibility criteria as per AICTE) which shows that
these admission were to be m ade not only on the basis of
minimum eligibility criteria as per AICTE norms but also through
an Entrance Test which is mandatory as per AICTE norms.
(c) Secretary, H.P.Technical Education Board has informed
that in 23 Private Po lytechnics, out of 3866 students admitted,
2627 admissions are without PAT/LEET and only 1239 are
made on the basis of PAT/ LEET students against total of 9000
approved seats.
(iii) It is further submitted that th e Hon’ble Apex Court in Civil
Appeal No. 9048 of 2012, vide order dated December 13, 2012 has
prescribed the last date of 15
th
August by which all seats should be
filled positively and after which ther e shall be no admission, whatever
be the reason or ground. The State Government earlier vide leter dated
25.7.2013 has allowed one time permission to take admissions to
B.Tech Courses only for the academic session 2013-14 in all Private
Universities and Engineering Institut ions on the basis of qualifying
examination i.e. Physics, Mathematics and one of the subject from
Chemistry, Bio-technology, Computer Science, Biology along with 65%
marks after exhausting the merit of the JEE (Main).
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
8
(iv) The average result of Private Polytechnics in the first year
(2012-13) was less than 5% and for senior classes, the result was
around 15-20% which speaks volumes about the availability of
infrastructure, faculty, quality and standard of education being imparted
by these institutions. It is submitted that thes e institutions are not
making any real investment in the infrastructure, not employing
experienced and qualified faculty severely affecting the quality of
education which is manifested in such results. The lowering down of
admission standards have also co ntributed to the aforesaid poor
results.
7. On the other hand, the respondent No.2 – University in its
reply has taken the following preliminary objections:
(i) That as per notification of AICTE dated 7
th
March, 2003
issued consequent upon the judgment delivered on 31.10.2002 by
eleven Judges Bench of the Hon’ble Supreme Court in W.P. No. 317 of
1993 titled as TMA Pai Foundation V/s State of Karnataka and others
wherein it has been clearly mentione d that all the seats including the
seats reserved for the management mu st be filled up through Joint
Entrance Test/Common Entrance Test conducted by Central/State
Government or University followed by counseling as per present
practice. However, the private unaided institutions may fill up the
management seats by having their own counseli ng in an objective and
transparent manner taking the students from same merit list prepared
on the basis of Joint Entrance Test/Common Entrance Test of
Central/State Government
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
9
(ii) It is further submitted that vide notification dated 22
nd
February, 2011, the Governor of Himachal Pradesh while exercising
power under Section 6 (2) of th e H.P. Technical University
(Establishment and Regulation) Act, 2010 is pleased to order that all
the Colleges situated in Himachal Pradesh imparting technical
education as per the provisions of Se ction 2 (k) of the above Act in the
subjects of Engineering Technologies, Information Technologies,
Sciences, Management, Pharmacy and Architecture and such other
subjects as may be de emed fit by the State Government from time to
time shall be deemed to be associated with and admitted to the
privileges of the H.P. Technical University, Hamirp ur with effect from
the date of issue of this notification and shall cease to be associated in
any way with, or admitted to any privileges of, Himachal Pradesh
University, Shimla. The Government has further ordered that all the
above colleges imparting technical education sha ll pay affiliation fee,
inspection fee, infrastructure f ee and any such other fee as may be
imposed to the H.P. Technical Univ ersity, Hamirpur with immediate
effect.
(iii) It is also submitted that the Himachal Pradesh Technical
University (Establishment and Regulation) Act, 2010 under Section 5
(zi) has empowered the replying respondent to make appropriate
measures for creation of an independent financial base of the
University and Section 5 (zk) also empowers to prescribe fees or other
charges for examination and other purposes and to demand and
receive the fees or othe r charges so prescribed. Accordingly, the first
meeting of Finance Commi ttee of the replying re spondent was held on
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
10
March 24, 2011 in which the approval of fee structure for processing of
applications, affiliation, inspection, University Registration, examination
fees, counseling fee etc. in academic session 2011-12 was discussed
and the same was approv ed. The Board of Gover nors of the replying
respondent in its meeting held on April 27, 20 11 also accorded its
approval to the minutes of the me eting of Finance Committee under
item No. 2.5 the minutes of 2
nd
meeting of BOG. Thereafter, fees for
processing of applications, affiliation, inspection, University registration,
examination fees, counseling fe e as approved by the Finance
Committee and the Board of Governors of the replying respondent are
being demanded from the petitioners. Since H.P. Technical University
is to make this University as an independent financial base, the
University is empowered to prescrib e fee and other charges as per the
decisions of Finance Committee a nd the Board of Governors of the
replying respondent.
8. We have heard learned counsel for the parties and have
also gone through the records carefully.
9. The learned counsel for the petitioners argued that under
the provisions of notification da ted 6.12.2013 institutions are
mandatorily required to take students from the merit list of CET. It is
argued that over the years, due to this restriction on admitting students
only through the merit list prepared consequent to CET, seats
remained vacant in the various courses for grant of CET qualified
students. It is also submitted that the members of the Association
cannot admit students either on their own or through any other
agencies in view of the norms laid down in the letter dated 6.12.2013.
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
11
The learned counsel for the petitioners have further contended that
right to admit students is guarantee d under Article 19 (1) (g) of the
Constitution so far as private self financed unaided institutions are
concerned, and the restrictions imposed vide letter dated 6.12.2013
interfered with this freedom wher eby despite empty seats, these
institutions are unable to admit students. It is argued that the Hon’ble
Supreme Court has repeatedly recognized that the “right to establish
includes the right to administe r” the institutions which broadly
comprises the right to admit students, the right to set up a reasonable
fee structure etc. It is further co ntended that the present regulations
violate this freedom of the petitioners by mandating a prescribed
procedure for admission thereby interfer ing with the instit utions right to
decide upon their own policies. It is argued that the freedom of
occupation to run an institution is rendered nugatory when the
members of the institutions are not able to determine their own
admissions policies and carry out their business in a manner they
deem fit, of course, so long as the educational objectives of the
institution are not compromised. By mandating through admissions,
through the CET, this freedom is viol ative when neither the institutions
can choose their admissions policies and at the same time the seats
also remain vacant.
10. It is further contended that CE T is process of elimination
and not process of selection of the students and therefore, conducting
CET in such a case negates th e very purpose for which these
institutions have been created because without students, these
institutions are enable to perform an y teaching activities. It is argued
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
12
that in order to find a solution agai nst such arbitrariness there ought to
be some provision allowing the colleges to admit students based upon
any other method, including prescrib ing of particular percentage in a
qualifying examination. The petitioners claimed that they are ready and
willing to adopt any method which is transparent and fair and would
admit the students only on the basis of merit.
11. The petitioners point out that they made huge investments
by obtaining loans from banks and fi nancial institutions and once the
seats in their institutions are lying vacant, they are not in a position to
pay back the instalments.
12. The learned counsel for the petitioners have further
contended that in case the payment seats are not exhausted on the
basis of the merit criteria either on account of paucity of students
prepared to take admission on paym ent basis or on account of drop-outs after the cut off date, the vacancy or vacancies, if any, should be
permitted to be filled up by the management, because in case the
State Government does not permit the institute to fill up the vacancies
not filled up from amongst students who had qualified at the entrance
test, a solution to the q uestion of financing the institute would have to
be found or else it must be prepared to bear th e financial burden by
paying a sum equivalent to the paym ent seats remaining vacant to the
institute as a grant to run the instit ute for otherwise it would have to
close down. Reliance in support of su ch submission is placed upon the
judgment of the Hon’ ble Supreme Court in State of H.P. and others
vs. Himachal Institute of Engg. And Technology, Sh imla (1998) 8
SCC 501 wherein it has been held as under:
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
13
“2. The contention of the learned counsel for the Institute is that
according to this Scheme, if all the payment seats are not exhausted
on the basis of the merit criteria either on account of paucity of
students prepared to take admission on payment basis or on account
of drop-outs after the cut-off date, the vacancy or vacancies, if any,
had to be filled by the management, For filling these vacancies, the
management had to determine its own criteria since none from
amongst those who qualified at the entrance test was forthcoming to
take the seat on payment basis. In such a situation, counsel
contends, either the seats must remain vacant and be wasted or the
management must be permitted to fill those seats on a reasonable
criteria adopted by the management. To take the situation in the
instant case, out of the 50 per cent payment seats in one particular
year, we are told that only six students applied for those seats and
their names were forwarded by the State Government for admission.
No one from amongst the candidates, who had qualified at the
entrance test, was forthcoming to take the remaining vacant seats on
payment basis, presumably because they could not afford it. After the
cut-off date, those seats remained vacant. The management
contends that it was entitled to fill those seats under clause (9 of para
210 of Unni Krishnan case on the basis of a reasonable criteria of
selection that may be adopted by the management. The
management also did not mind any criteria being fixed in this behalf
by any other authority like the central council or the State
government. What it is concerned with is that if the payment seats
remain vacant in such large numbers, the Institute would not be able
to meet the expenses for running the professional course and would
be placed on the Hobson’s choice of either suffering huge losses or
closing down the Institute. Our attention was also drawn to a
subsequent decision of this court in T.M.A. Pai Foundation v. State of
Karnataka, (1995) 5 SCC 200. That was a case where religious and
linguistic minority institutions had approached the court for
clarification in view of some difficulty arising from the observations in
Unni Krishnan case (1993) 1 SCC 645. In that case, the court further
divided the 50 per cent payment seats into two halves and allowed
the minority institutions to fill the first-half from minority students but
again on inter se merit at the entrance examination, the other half
had to be filled in accordance with the criteria laid down in Unni
Krishnan case. That decision does not really apply to the situation in
the instant case because here the position is quite different, in that,
the 50 per cent payment seats are not exhausted because students
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
14
are not forthcoming in this professional discipline io take admission.
The situation has to be resolved because as very rightly pointed out
by counsel for the Institute, the choice is between running huge
losses or closing the Institute for want of availability of such students.
Ultimately, the finance has to come from those students as per the
scheme envisaged in Unni Krishnan case. If the State government
does not permit the Institute to fill up the vacancies not filled up from
amongst students who had qualified at the entrance test, a solution to
the question of financing the Institute would have to be found.
Counsel for the Institute submitted that if the State government wants
to adopt the attitude of not permitting the Institute to fill up those
vacancies by students prepared to pay but who have not qualified at
the entrance examination, then it must be prepared to bear the
financial burden by paying a sum equivalent to the payment seats
remaining vacant to the Institute as a grant to run the Institute for
otherwise it would have to close down. The learned counsel for the
State of Himachal Pradesh very rightly pointed out that he would like
to place this matter before the State government to enable it to make
a positive response to the stalemate situation arising in the State in
regard to this professional discipline from year to year. An effective
solution has to be found. A copy of this order may be given to the
learned counsel for the State of Himachal Pradesh to enable him to
seek the response of the State government and place the same
before this court before the next date of hearing. Let the matter come
up after two weeks.”
13. The learned counsel for the petitioners would further
submit that these being the unaid ed professional institutions are
entitled to autonomy in their administration wher eby they have the right
to management and administer thei r institutions which includes the
right to make admission and also c harge reasonable fee apart from the
other rights and placed reliance upon the judgment of the Hon’ble
Supreme Court in T.M.A. Pai Foundation and others vs. State of
Karnataka and others (2002) 8 SCC 481 wherein it has been held as
under:
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
15
“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 forgo 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 postgraduation non-professional colleges or institutes.
69. 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.
70. It is well settled 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
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
16
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
educational institution has to get recognition from the university
concerned, which normally requires certain conditions to be fulfilled
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.”.
14. The learned counsel for the petitioners in furtherance of
their contention have placed reliance upon the judgment of the Hon’ble
Supreme Court in P.A. Inamdar and others vs. State of Maharashtra
and others (2005) 6 SCC 537 wherein it has been held as under:
“ Admission procedure of unaided educational institutions.
133. So far as the minority unaided institutions are concerned to
admit students being one of the components of “right to establish and
administer an institution”, the State cannot interfere therewith. Upto
the level of undergraduate education, the minority unaided
educational institutions enjoy total freedom.
134. However, different considerations would apply for graduate
and post-graduate level of education, as also for technical and
professional educational institutions. Such education cannot be
imparted by any institution unless recognized by or affiliated with any
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
17
competent authority created by law, such as a University, Board,
Central or State Government or the like. Excellence in education and
maintenance of high standards at this level are a must. To fulfill these
objectives, the State can and rather must, in national interest, step in.
The education, knowledge and learning at this level possessed by
individuals collectively constitutes national wealth.
135. Pai Foundation has already held that the minority status of
educational institutions is to be determined by treating the States as
units. Students of that community residing in other States where they
are not in minority, shall not be considered to be minority in that
particular State and hence their admission would be at par with other
non-minority students of that State. Such admissions will be only to a
limited extent that is like a ‘sprinkling’ of such admissions, the term
we have used earlier borrowing from Kerala Education Bill, 1957. In
minority educational institutions, aided or unaided, admissions shall
be at the State level. Transparency and merit shall have to be
assured.
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 places on same or different
dates and there may be a clash of dates. If the same candidate is
required to appear in several tests, he would be subjected to
unnecessary and avoidable 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 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
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
18
also for saving the student community from harassment and
exploitation. Holding of such common entrance test followed by
centralized counseling 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 list of successful
candidates prepared at the 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 admissions and the procedure therefor 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
imparted 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 abovesaid 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 mal-administration. The admission procedure so adopted by private
institution or group of institutions, if it fails to satisfy all or any of the
triple tests, indicated hereinabove, can be taken over by the State
substituting its own procedure. The second question is answered
accordingly.
138. It needs to be specifically stated that having regard to the larger
interest and welfare of the student community to promote merit,
achieve excellence and curb mal-practices, 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.”
15. The learned counsel for the petitioners would also contend
that there is already a time bo und schedule fixed by the Hon’ble
Supreme Court for conducting examination, counselling and
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
19
commencement of the academic se ssion whereby the last date for
granting or refusing approval has also been fixed and, therefore, even
the petitioners cannot go beyond the schedule so fixed. In support of
their contention, they have placed reliance upon the judgment of the
Hon’ble Supreme Court in Parshvanath Charitable Trust and others
vs. All India Council for Technical Education and others (2013) 3
SCC 385 wherein it has be en held as under:
“41. The appropriate Schedule, thus, would be as follows:
Event Schedule
Conduct of Entrance Examination
(AIEEE/State CET/ Mgt. quota exams etc.)
In the month of May
Declaration of Result of Qualifying Examination
(12th Exam or similar) and Entrance
Examination
On or before 5th June
1st round of counselling/ admission for
allotment of seats
To be completed on or before
30th June
2nd round counselling for allotment of seats To be completed on or before
10th July
Last round of counselling for allotment of seats To be completed on or before
20th July
Last date for admitting candidates in seats
other than allotted above
30th July. However, any number
of rounds for counselling could be
conducted depending on local
requirements, but all the rounds
shall be completed before 30th
July
Commencement of academic session 1st August
Last date upto which students can be admitted
against vacancies arising due to any reason
(no student should be admitted in any
institution after the last date under any quota)
15th August
Last date of granting or refusing approval by
AICTE
10th April
Last date of granting or refusing approval by
University / State Govt.
15
th
May “.
16. Lastly the learned counsel for the petitioners would
contend that the rights of private individuals to establish and administer
educational institutions under Article 19 (1) (g) of the Constitution, is
now well established whereby it is settled that the right to admit
students in different educational and medical institutions is an integral
part of the right to admi nister and cannot be interfered with except in
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
20
cases of maladministration or lack of transparency. This integral part of
freedom and rights guaranteed un der Article 19 (1) (g) of the
Constitution of India and that the admissions to educational institutions
have been held to be part and parc el of the right of an educational
institution to administer and the same cannot be regulated, except for
the purpose of laying down standards for maintaining the excellence of
education being provided in such in stitutions and have placed reliance
upon the recent judgment of the Hon’ble Supr eme Court in Christian
Medical College, Vellore and others vs. Union of India and others
(2014) 2 SCC 305 wherein it has been held as under:
“146. Despite the various issues raised in this batch of cases, the
central issue relates to the validity of the amended Regulations and
the right of MCI and DCI thereunder to introduce and enforce a
common entrance test, which has the effect of denuding the State
and private institutions, both aided and unaided, some enjoying the
protection of Article 30, of their powers to admit students in the
MBBS, BDS and the postgraduate courses conducted by them.
There is little doubt that the impugned notifications dated 21.12.2010
and 31.5.2012, respectively, and the amended Regulations directly
affect the right of private institutions to admit students of their choice
by conducting their own entrance examinations, as they have been
doing all along. Attractive though it seems, the decision taken by MCI
and DCI to hold a single National Eligibility-cum-Entrance Test to the
MBBS, BDS and the postgraduate courses in medicine and dentistry,
purportedly with the intention of maintaining high standards in
medical education, is fraught with difficulties, not the least of which is
the competence of MCI and DCI to frame and notify such regulations.
The ancillary issues which arise in regard to the main issue, relate to
the rights guaranteed to citizens under Article 19 (1) (g) and to
religious and linguistic minorities under Article 30 of the Constitution,
to establish and administer educational institutions of their choice.
154. The four impugned Notifications dated 21.12.2010 and
31.5.2012 make it clear, in no uncertain terms, that all admissions to
the MBBS and the BDS courses and their respective postgraduate
courses, shall have to be made solely on the basis of the results of
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
21
the respective NEET, thereby preventing the States and their
authorities and privately-run-institutions from conducting any
separate examination for admitting students to the courses run by
them. Although, Article 19 (6) of the Constitution recognizes and
permits reasonable restrictions on the right guaranteed under Article
19 (1) (g), the course of action adopted by MCI and DCI would not, in
our view, qualify as a reasonable restriction, but would amount to
interfere with the rights guaranteed under Article 19 (1) (g) and, more
particularly, Article 30, which is not subject to any restriction similar to
Article 19 (6) of the Constitution. Of course, over the years this Court
has repeatedly observed that the right guaranteed under Article 30,
gives religious and linguistic minorities the right to establish and
administer educational institutions of their choice, but not to
maladminister them and that the authorities concerned could impose
conditions for maintaining high standards of education, such as
laying down the qualification of teachers to be appointed in such
institutions and also the curriculum to be followed therein. The
question, however, is whether such measures would also include the
right to regulate the admissions of students in the said institutions.
156. The Supreme Court has consistently held that the right to
administer an educational institution would also include the right to
admit students, which right, in our view, could not be taken away on
the basis of notifications issued by MCI and DCI which had no
authority, either under the 1956 Act or the 1948 Act, to do so. MCI
and DCI are creatures of statute, having been constituted under the
Indian Medical Council Act, 1956 and the Dentists Act, 1948, and
have, therefore, to exercise the jurisdiction vested in them by the
statutes and they cannot wander beyond the same. Of course, under
Section 33 of the 1956 Act and Section 20 of the 1948 Act, power
has been reserved to the two Councils to frame regulations to carry
out the purposes of their respective Acts. It is pursuant to such power
that MCI and DCI has framed the Regulations of 1997, 2000 and
2007, which set the standards for maintaining excellence of medical
education in India. The right of MCI and DCI to prescribe such
standards has been duly recognized by the courts. However, such
right cannot be extended to controlling all admissions to the MBBS,
the BDS and the postgraduate courses being run by different medical
institutions in the country. At best, a certain degree of control may be
exercised in regard to aided institutions, where on account of the
funds being provided by the Government, it may have a say in the
affairs of such institutions.
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
22
158. The rights of private individuals to establish and administer
educational institutions under Article 19 (1) (g) of the Constitution are
now well established and do not require further elucidation. The
rights of unaided and aided religious and linguistic minorities to
establish and administer educational institutions of their choice under
Article 19 (1) (g), read with Article 30 of the Constitution, have come
to be crystallized in the various decisions of this Court referred to
hereinabove, which have settled the law that the right to admit
students in the different educational and medical institutions is an
integral part of the right to administer and cannot be interfered with
except in cases of maladministration or lack of transparency. The
impugned Regulations, which are in the nature of delegated
legislation, will have to make way for the constitutional provisions.
The freedom and rights guaranteed under Articles 19 (1) (g), 25, 26
and 30 of the Constitution to all citizens to practice any trade or
profession and to religious minorities to freedom of conscience and
the right freely to profess, practice and propagate religion, subject to
public order, morality and health and to the other provisions of Part III
of the Constitution, and further to maintain institutions for religious
and charitable purposes as guaranteed under Articles 25 and 26 of
the Constitution, are also well established by various
pronouncements of this Court. Over and above the aforesaid
freedoms and rights is the right of citizens having a distinct language,
script or culture of their own, to conserve the same under Article 29
(1) of the Constitution.
172. What can ultimately be culled out from the various
observations made in the decisions on this issue, commencing from
Kerala Education Bill case to recent times, is that admissions to
educational institutions have been held to be part and parcel of the
right of an educational institution to administer and the same cannot
be regulated, except for the purpose of laying down standards for
maintaining the excellence of education being provided in such
institutions. In the case of aided institutions, it has been held that the
State and other authorities may direct a certain percentage of
students to be admitted other than by the method adopted by the
institution. However, in cases of unaided institutions, the position is
that except for laying down standards for maintaining the excellence
of education, the right to admit students into the different courses
could not be interfered with. In the case of aided minority institutions,
it has been held that the authority giving aid has the right to insist
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
23
upon the admission of a certain percentage of students not
belonging to the minority community, so as to maintain the balance
of Article 19 (2) and Article 30 (1) of the Constitution. Even with
regard to unaided minority institutions, the view is that while the
majority of students to be admitted should be from the minority
community concerned, a certain percentage of students from other
communities should also be admitted to maintain the secular
character of education in the country in what has been described as
a “sprinkling effect”.
17. On the other hand, the learned Advocate General for
respondents-State and Mr. T.S.Chauhan, learned counsel for
respondent No.2 would contend that all the questions as raised by the
petitioners herein have been rendered academic not only on account of
what has been stated in the reply bu t also on account of various
judicial pronouncements. They ha ve contended that the Hon’ble
Supreme Court has clearly held that while pre scribing the eligibility
criteria for admission to institutions of higher education, the
State/University cannot adversely af fect the standards laid down by the
Central Body/AICTE and only the higher standards for admission by
prescribing or laying down qualifications in addition to or higher than
those prescribed by AICTE, can be prescribed by t he Colleges. They
further contend that t he contention of the peti tioners that the State
authorities including the respondent-University cannot deny admission
to any student satisfying the minimum standard laid down by AICTE or
any other Entrance Test, even though he is not qualified according to
its standards has been declared to be not a good law. They further
contend that mere fact that there ar e unfilled seats in a particular year,
does not mean that in that year, the eligibility criteria fixed by the
State/University would cease to apply or that the minimum eligibility
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
24
criteria suggested alone would apply. Unless and until the State or the
University chooses to modify the elig ibility criteria fixed by them, they
will continue to apply inspite of th e fact that there are vacancies or
unfilled seats in any year. They further contend that the main object of
prescribing eligibility criteria is not to ensure that all seats in the
colleges are filled up, but is to ensure that excellence in standards of
higher education is maintained. This according to re spondent No.2 has
been so held and laid down by the Hon’ble Supreme Court in
Visveswaraiah Technological University and another vs.
Krishnendu Halder and others (2011 ) 4 SCC 606 wherein it has
been held as under:
“14. The respondents (colleges and the students) submitted that in
that particular year (2007-2008) nearly 5000 engineering seats
remained unfilled. They contended that whenever a large number of
seats remained unfilled, on account of non-availability of adequate
candidates, para 41(v) and (vi) of Adhiyaman would come into play
and automatically the lower minimum standards prescribed by AICTE
alone would apply. This contention is liable to be rejected in view of
the principles laid down in the Constitution Bench decision in Dr.
Preeti Srivastava and the decision of the larger Bench in S.V.
Bratheep which explains the observations in Adhiyaman in the
correct perspective. We summarise below the position, emerging
from these decisions :
(i) While prescribing the eligibility criteria for admission to
institutions of higher education, the State/University cannot
adversely affect the standards laid down by the Central
Body/AICTE. The term `adversely affect the standards’ refers
to lowering of the norms laid down by Central Body/AICTE.
Prescribing higher standards for admission by laying down
qualifications in addition to or higher than those prescribed by
AICTE, consistent with the object of promoting higher
standards and excellence in higher education, will not be
considered as adversely affecting the standards laid down by
the Central Body/AICTE.
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
25
(ii) The observation in para 41(vi) of Adhiyaman to the effect
that where seats remain unfilled, the state authorities cannot
deny admission to any student satisfying the minimum
standards laid down by AICTE, even though he is not
qualified according to its standards, is not good law.
(iii) The fact that there are unfilled seats in a particular year,
does not mean that in that year, the eligibility criteria fixed by
the State/University would cease to apply or that the minimum
eligibility criteria suggested by AICTE alone would apply.
Unless and until the State or the University chooses to modify
the eligibility criteria fixed by them, they will continue to apply
in spite of the fact that there are vacancies or unfilled seats in
any year. The main object of prescribing eligibility criteria is
not to ensure that all seats are in colleges are filled, but to
ensure that excellence in standards of higher education is
maintained.
(iv) The State/University (as also AICTE) should periodically
(at such intervals as they deem fit) review the prescription of
eligibility criteria for admissions, keeping in balance, the need
to maintain excellence and high standard in higher education
on the one hand, and the need to maintain a healthy ratio
between the total number of seats available in the state and
the number of students seeking admission, on the other. If
necessary, they may revise the eligibility criteria so as to
continue excellence in education and at the same time being
realistic about the attainable standards of marks in the
qualifying examinations.
15. The primary reason for seats remaining vacant in a state, is
the mushrooming of private institutions in higher education. This is so
in several states in regard to teachers training institutions, dental
colleges or engineering colleges. The second reason is certain
disciplines going out of favour with students because they are
considered to be no longer promising or attractive for future career
prospects. The third reason is the bad reputation acquired by some
institutions due to lack of infrastructure, bad faculty and indifferent
teaching. Fixing of higher standards, marginally higher than the
minimum, is seldom the reason for seats in some colleges remaining
vacant or unfilled during a particular year. Therefore, a student
whose marks fall short of the eligibility criteria fixed by the
State/University, or any college which admits such students directly
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
26
under the management quota, cannot contend that the admission of
students found qualified under the criteria fixed by AICTE, should be
approved even if they do not fulfil the higher eligibility criteria fixed by
the State/University.
16. The proliferating unaided private colleges, may need a full
complement of students for their comfortable sustenance (meeting
the cost of running the college and paying the staff etc.). But that
cannot be at the risk of quality of education. To give an example, if
35% is the minimum passing marks in a qualifying examination, can it
be argued by colleges that the minimum passing marks in the
qualifying examination should be reduced to only 25 or 20 instead of
35 on the ground that the number of students/candidates who pass
the examination are not sufficient to fill their seats? Reducing the
standards to `fill the seats’ will be a dangerous trend which will
destroy the quality of education. If there are large number of
vacancies, the remedy lies in (a) not permitting new colleges; (b)
reducing the intake in existing colleges; (c) improving the
infrastructure and quality of the institution to attract more students.
Be that as it may. The need to fill the seats cannot be permitted to
override the need to maintain quality of education. Creeping
commercialization of education in the last few years should be a
matter of concern for the central bodies, States and universities”.
18. They further contend that the ratio in the aforesaid
judgment in Visveswaraiah Technological University (supra) has
been reiterated and followed in Mahatma Gandhi University and
another vs. Jikku Paul and others (2011) 15 SCC 242 wherein the
Hon’ble Supreme Court held as under:
“8. The issues raised in this appeal are squarely covered by a
recent decision of this Court in Visveswaraya Technological University &
Anr. v. Krishnendu Halder & Ors. (2011) 4 SCC 606 : (2011) 3 Scale
359. We extract below the relevant principles from the said decision:
(SCC pp.614-15, para 14)
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
27
“(i) While prescribing the eligibility criteria for admission to
institutions of higher education, the State/University cannot
adversely affect the standards laid down by the Central
Body/AICTE. The term `adversely affect the standards’ refers
to lowering of the norms laid down by Central Body/AICTE.
Prescribing higher standards for admission by laying down
qualifications in addition to or higher than those prescribed by
AICTE, consistent with the object of promoting higher
standards and excellence in higher education, will not be
considered as adversely affecting the standards laid down by
the Central Body/AICTE.
**** **** ****
(iii) The fact that there are unfilled seats in a particular year,
does not mean that in that year, the eligibility criteria fixed by
the State/University would cease to apply or that the minimum
eligibility criteria suggested by AICTE alone would apply.
Unless and until the State or the University chooses to modify
the eligibility criteria fixed by them, they will continue to apply
in spite of the fact that there are vacancies or unfilled seats in
any year. The main object of prescribing eligibility criteria is
not to ensure that all seats in colleges are filled, but to ensure
that excellence in standards of higher education is
maintained.
(iv) The State/University (as also AICTE) should periodically
(at such intervals as they deem fit) review the prescription of
eligibility criteria for admissions, keeping in balance, the need
to maintain excellence and high standard in higher education
on the one hand, and the need to maintain a healthy ratio
between the total number of seats available in the state and
the number of students seeking admission, on the other. If
necessary, they may revise the eligibility criteria so as to
continue excellence in education and at the same time being
realistic about the attainable standards of marks in the
qualifying examinations.”
This court further held: (Visveswaraya Technological University case,
SCC p.616, para 17)
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
28
“17. No student or college, in the teeth of the existing and
prevalent rules of the State and the University can say that
such rules should be ignored, whenever there are unfilled
vacancies in colleges. In fact the State/University, may, in
spite of vacancies, continue with the higher eligibility criteria
to maintain better standards of higher education in the State
or in the colleges affiliated to the University. Determination of
such standards, being part of the academic policy of the
University, are beyond the purview of judicial review, unless it
is established that such standards are arbitrary or `adversely
affect’ the standards if any fixed by the Central Body under a
Central enactment. The order of the Division Bench is
therefore unsustainable.”
9. It is not in dispute that as per the scheme of AICTE [vide
clause 6.1 (b)] to seek lateral entry to an engineering degree, the
candidate must have passed the diploma in engineering in the
relevant branch with a minimum of 60% marks in the aggregate. The
said clause also provides that the selection of candidates will be
based on the entrance test, the merit ranking in the test being the
basis of admission. As per the Lateral Entry Scheme of the State
Government, the additional requirement is that the candidates should
also secure minimum of 20% marks in the entrance test. In view of
the decision in Krishnendu Halder (supra), the contentions of the
appellant will have to be accepted and the decision of the High Court
is liable to be set aside.”
19. We have considered rival contentions of learned counsel
for the parties.
20. In view of the various pronouncements of the Hon’ble
Supreme Court, it can safely be concluded that in a right to establish
an institution, inherent is the right to administer the same which is
protected as part of the freedom of occupation unde r Article 19 (1) (g).
Equally, at the same time, it has to be remembered that this right is not
a business or a trade, given sole ly for the profit making since the
establishment of educational institutions bears a clear charitable
purpose. The establishment of these in stitutions has a direct relation
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
29
with the public interest in creating such institutions because this
relationship between the public interest and private freedom
determines the nature of public controls which ca n be permitted to be
“permissible”. Even the petitioners co ncede that they have established
the institutions to ensure good q uality education and would not permit
the standard of excellence to fa ll below the standard as may be
prescribed by the State Government. The petiti oners also conceded
that the State makes it mandatory for them to maintain the standard of
excellence in professional institut ions. Thus, ensuring that admissions
policies are based on merit, it is cr ucial for the State to act as a
regulator. No doubt, this may have so me effect on the autonomy of the
private unaided institution but that would not mean that their freedom
under Article 19 (1) (g) has in an y manner been violated. The freedom
contemplated under Article 19 (1) (g) does not imply or even suggest
that the State cannot regulate educ ational institutions in the larger
public interest nor it be suggested that under Article 19 (1) (g), only
insignificant and trivial matters can be regulated by the State.
Therefore, what clearly emerges is that the autonomy granted to
private unaided institutions cannot restrict the State’s authority and
duty to regulate academic standards. On the other hand, it must be
taken to be equally settled that the State’s authority cannot obliterate or
unduly compromise these in stitutions’ autonomy. In fact it is in matters
of ensuring academic standards that the balance necessarily tilts in
favour of the State taking into cons ideration the public interest and the
responsibility of the State to en sure the maintenance of higher
standards of education.
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
30
21. It has been judicial recognized that the right to administer
is not an absolute one and there could be regulatory measures for
ensuring educational standards and maintenance of excellence thereof
and it is more so in the matter of admission to under Graduate
Colleges and Profession al Institutions (TMA Pai Foundation).
22. It is in this background that this Court is required to
consider as to whether the CET in this case viol ates the freedom of the
institutions under Article 19 (1) (g) or whether such regulatory control is
permissible. It is not disputed that the CET prescribes a fair equitable
standard for judging the merit of the students. The only difficulty which
the petitioners express is that in th is regulatory proc ess, the seats in
their respective colleges are lying va cant due to non-av ailability of the
students because it is claimed that the total number of sanctioned
seats for B. Tech courses in the coun try (government as well as private
including IIT and NITs) is 65 lakh : 20 thousand, total number of All
India applicants for JEE Test 2014 is 13 lakh : 67 thousand, total
number of sanctioned seats for B Tech courses in Himachal
(Government and HPU) is 540 and 12 0 respectively, total number of
sanctioned seats for B Tech Courses in Himachal (Private Institutions)
is 7680 in Private Engineering Colleges and 7820 in Private
Universities, total approx. 15,000 and admissions made in B Tech
Courses in Himachal (Private Colleges like petitioners) year 2012-13
through JEE 1049, year 2013-14 through JEE 429 an d year 2014-15
less than 500 students have registered themselves with H.P. Technical
University for admission in institutions in the State of H.P. i.e.
Government B Tech Courses offering Colleges and Private B Tech
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
31
Courses offering Colleges out of which also many may finally not opt
for the seats available in Himachal. Th erefore, in this background, it is
pleaded that the petitioners cannot be asked to perform the impossible
and, therefore, should be permitted to devise a merit based process
themselves rather than permitting t he State to impose its determination
of merit. This according to the pe titioners in fact amounts to an
unreasonable interference in its right to administer the institutions.
23. The State has power to regulate academic excellence
particularly in matters of admissions to the institut ions and, therefore, is
competent to prescribe merit based admission processes for creating
uniform admission process through CET. Any prayer for seeking
dilution or even questioning the authority of the State to act an
regulator is totally ill-founded in view of the various judicial
pronouncements, particularly in Visveswaraiah Technological
University (supra) and reiterated in Mahatma Gandhi University
(supra).
24. The learned counsel for the petitioners have strenuously
argued that the complete answer to the proposition involved in the
case has been answered in its favour vide recent decision in Christian
Medical College (supra) and, therefore, the petitions ought to be
allowed as prayed for. He part icularly relied upon the following
observations:
“……. However, in cases of unaided institutions, the position is that
except for laying down standards for maintaining the excellence of
education, the right to admit students into the different courses could
not be interfered with. In the case of aided minority institutions, it has
been held that the authority giving aid has the right to insist upon the
admission of a certain percentage of students not belonging to the
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
32
minority community, so as to maintain the balance of Article 19 (2)
and Article 30 (1) of the Constitution. Even with regard to unaided
minority institutions, the view is that while the majority of students to
be admitted should be from the minority community concerned, a
certain percentage of students from other communities should also
be admitted to maintain the secular character of education in the
country in what has been described as a “sprinkling effect”.
25. The aforesaid observations cann ot be read out of context
because the Hon’ble Supr eme Court in this case was dealing with the
validity of regulations framed by the MCI which mandated the
Combined Entrance Test (CET) for all medical colleges i.e. aided as
well as unaided. The Ho n’ble Supreme Court wa s primarily concerned
with a situation where the parent enactment did not provide for or
enable such regulation to be framed and in this background, the
Hon’ble Supreme Court held that such regulations were not
permissible and that any regulation which had the effect of take-over of
seats, or reserving some part of un aided college’s intake, would be an
impermissible nationalization. This is not the fact situation obtaining in
the present case.
26. Unlike in Christian Medical College, where the rights of
minorities were involved, the present case is confined to the
applicability to the scope and ambit of Article 19 (1) (g) and for this
purpose, we have to fall back to the law laid down by the larger Bench
decisions of the Hon’ble Supreme Court in T.M.A. Pa i Islamic Academy
and P.A. Inamdar which have recognised the State’s power to direct a
joint entrance examination, so long as it does not nationalize the intake
“and result in imposition of a re servation policy”. The equity and
excellence in academic institutions have to be maintained and what
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
33
better way can it be main tained than by ensuring that each students
competes in the same examination i.e. CET so as to ensure that in
terms of the access to education (equity) and merit of students
(excellence) a common platform is th at for admissions in to professional
colleges .
27. This takes us to the nex t question regarding the
allegations of the petitioners with respect to charging of exorbitant
processing fee, inspection fee and affiliation fee for the purposes of
affiliation/extension/continuation of affiliation. It is argued that the
inspection fee is ` 75,000/- and affiliation fee for Engineering and
Pharmacy Course is ` 2,50,000/- per course and ` 25,000/- per PG
Course and while for MBA and MCA, the same is `75,000/- per course.
It is further stated that in terms of the communication, the last date for
submission of application forms is 31.1.2014, failing which the penalty
of ` 50,000/- per course will be imposed and that no application forms
will be entertained after 7.2.2014. This action of the respondent in
demanding exorbitant am ount of counselling fee from the Technical
Institutions like the petitioners for each academic session and that too
per course irrespective of the actual candidates admitted on the basis
of the said counselling is claimed to be arbitrary.
28. The respondent No.2 in response to such allegations has
submitted that Himachal Pradesh Te chnical University (Establishment
and Regulation) Act, 2010 under Se ction 5 (zi) has empowered the
respondent to make appropriate measures for creation of an
independent financial base of the University an d Section 5 (zk) also
empowers to prescribe fees or othe r charges for examination and other
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
34
purposes and to demand and receive the fees or ot her charges so
prescribed. Accordingly, the first meeting of Finance Committee of the
respondent-University was held on 24.3.2011 in which the approval of
fee structure for processing of appl ications, affiliation, inspection,
University registration, examination fees, counselling fee etc. and the
same was approved by th e Board of Governors in its meeting held on
27.4.2011 whereby the approval was accorded to the minutes of the
meeting of the Finance Committee under item No. 2.5 of the minutes of
2
nd
meeting of the Board of Governors. It is cl aimed that the fees for
processing of applications, affiliation, inspection, University registration,
examination fees, counselling fee is being demanded from the
petitioners on the basis of the appr oval of the recommendation of the
Finance Committee as approved by t he Board of Governors. Lastly, it
is claimed that the H.P. Technical Univ ersity is to make this University
as an independent financial base and, therefore, is empowered to
prescribe fee and other charges as per the decision of the Finance
Committee and the Board of Governors of the respondent No.2.
29. Unfortunately, the petitioner s have not questioned this
decision of the Financ e Committee as approved by the Board of
Governors. The fixation of fee is a policy matter and lies solely within
the domain of the respondents. Even otherwise, this Court lacks
expertise to determine what should be the fees for different kinds of
courses. Accordingly, we find no merit in this contention of the
petitioners.
30. In view of above, it is declared that the impugned
measures providing for admission to various courses on the basis of
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
High Court of H.P.
35
Combined Entrance Test (CET) as imposed by the respondents are
reasonable and pass the test under Ar ticle 19 (1) (g) of the Constitution
of India.
Accordingly, the present petitions lack merit and are
dismissed, so also the pending applic ations, leaving the parties to bear
their own costs.
( Mansoor Ahmad Mir)
Chief Justice
July 23, 2014 (Tarlok Singh Chauhan),
( GR) Judge.
::: Downloaded on – 24/07/2014 16:27:41 :::CMIS
(8)
