- (1.) In these matters relating to admission to professional courses in medicine, engineering, pharmacy, nursing, etc. in educational institutions which are claimed to be Minority Educational Institutions, the petitioners have questioned the applicability of the scheme framed by this Court in J. P. Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, as well as the applicability of the Rules and Orders made by several State Governments on the basis of the said decision. By order dated October 7, 1993 [reported in (1993) 4 SCC 286] passed by the Constitution Bench three questions were referred for consideration by a larger Bench. In pursuance of the said order, this Bench has been constituted. When the matters were taken up on March 16, 1994, the Court felt that it was necessary to reframe the first two questions. The hearing of the matters was, therefore, adjourned to March 18, 1994, on which date the questions requiring consideration by this Bench have been reframed to highlight the several aspects of the claims put forward by the petitioners. The claim of being a "minority" - whether based on religion or language - and the claim of being a "minority" educational institution" put forward by the petitioners cannot be pronounced upon without first ascertaining what the said expressions connote and signify. Having regard to the importance of the questions involved we consider it appropriate to issue notice to the Attorney General of India as well as the Advocates-General for the States. It would, therefore, not be feasible to take up the hearing of these matters before the Court closes for the long vacation. Since the process of selection of candidates for admission for the. next academic session is to commence soon, it is necessary to pass an interim order governing admission to the professional courses in minority educational institutions for the next academic session.
(2.) For admission in the last academic session 1993-94, an interim order in the following terms was made by a Bench comprising Hon'ble the Chief Justice and one of us (Justice B. P. Jeevan Reddy) on May 14, 1993 in Writ Petitions Nos. 350 and 355 of 1993:- 1. We have heard Shri Soli J. Sorabjee, learned senior counsel for the petitioners in these two writ petitions. Issue rule. 2. There will be an interim order in the following terms: (i) Fifty per cent of the total intake in the petitioners' educational institutions shall be permitted to be filled up by candidates selected by the agencies of the State Government on the basis of a competitive examination/test. The candidates so selected and admitted shall pay scales of fee as applicable to this class of students as determined by the State Government from time to time. (ii) The remaining fifty per cent of the intake may be regulated by the petitioners to admit candidates belonging to the particular religious or linguistic minority. However, selection shall be made strictly on the basis or merit among the candidates seeking admission to the institutions. Such merit shall be determined on the basis of the academic performance at the qualifying examination; or on the basis of any objective test that the institution might itself apply to determine such relative and competing merits or on the basis of performance of the results of the selection tests that the State Government may itself hold for selecting candidates for admission to technical colleges in the State, It is optional for the petitioners to adopt any one of the modes and apply it uniformally. Candidates so selected on the basis of merit amongst the minorities shall, however, abide by such condition in the matter of payment of tuition and other fee as may be permitted by the State Government. 3. It is made clear that this order is made on the assumption that the petitioners are minority institutions. It is open to the respondents to question this status claimed by the petitioners. 4. This order shall, however, not stop the petitioners from urging all other contentions raised in the writ petition as, indeed, this interim interlocutory order is made on the consent of the petitioners and without prejudice to all the contentions."
(3.) Thereafter the matter was considered by the Constitution Bench in its order dated August 18, 1993 [reported in (1993) 4 SCC 112]. In that order the writ petitions placed before the Bench were categorised into five categories, namely, (1) unaided minority educational institutions, (2) minority educational institutions which are in receipt of State funds by way of and, (3) minority educational institutions in respect of which it is not clear from the averments in the writ petitions whether they are aided or unaided institutions, (4) writ petitions challenging the correctness and applicability of Unni Krishnan (supra) filed by educational institutions which do not claim to be minority educational institutions, (5) writ petitions which do not fall in any of the above categories. It was directed that the order dated May 14, 1993, would not apply to educational institutions falling in categories (4) and (5) and the institutions referred to in paragraph 18 of the order dated August 18, 1993. The order dated May 14, 1993, was made applicable to the institutions falling in categories (1), (2) and (3) with the modification that following paragraphs were added in continuation of the said order: "(5) In continuation of para (3) it is made further clear that whether any of petitioner-institutions is a MEI or not is a matter for the Government to verify and determine. We do not - more particularly at this stage - make any pronouncement in that behalf. This order shall be applicable only to those institutions which are found to be MEIs on verification by the Government and not to those who are not found to be MEIs on such verification. (6) The 50% seats to be filled up by the candidates selected by the agencies of the State Government on the basis of a competitive examination/ test as well as the remaining 50%, seats to be filled in accordance with clause (ii),of para (2), of the said order shall be equally distributed between free seats and payments seats. In other words, out of the 50% seats to be filled up by government, half will be payment seats and half 'will be free seats. Similarly, out of the 50% of the seats to be filled up by the Management in accordance with para 2(ii) of the said order, half shall be payment seats and the other half free seats. The NRIs, if any admitted to an extent not exceeding 5% of the total seats shall be out of payment seats to be filled under para 2(ii). (7) After completing the admissions each of the colleges shall submit to the competent authority, to the University to which it is affiliated and to the Government concerned statements containing full particulars of the students admitted under clause (ii) of para (2) of this order. Such statements shall contain as full a particulars as possible. The authorities to which the statements are submitted shall verify the correctness of the statements and, if they find any irregularity, they shall call upon the, college concerned to rectify the same. They shall also bring any such violation to the notice of this Court by way of any interlocutory application. Any such irregularity if proved may entail serious consequences." ;