- (1.) Though the orders we are now making are interim in nature, it is appropriate to set out briefly the circumstances leading to the present stage for a proper appreciation of the several direc- tions we are making herein.
(2.) In Unnikrishnan J. P. v. State of Andhra Pradesh (1993) 1 SCC 645 : (1993) AIR SCW 863), a Constitution Bench of this Court framed a scheme governing admissions to professional colleges. This was done with a view to eliminate the evil of capitation fee and the absolute discretion which the managements of these colleges were exercising in the matter of admission of students. The main objective was to ensure that merit prevails in the matter of admissions, both in respect of what were called "free seats" as well as in respect of "payment seats." This judgment was rendered on February 4, 1993. The scheme was to be effective from the Academic Year 1993-94 onwards. 2A. Review Petitions were filed by several institutions against the said judgment. They were dismissed by the Constitution Bench on May 14, 1993 subject to one clarification, viz., that it shall be open to the professional colleges to admit non-resident Indian students to the extent of five percent of the total intake in a given year. These five percent seats were to be out of fifty percent payment seats.
(3.) The Government of Karnataka sought to apply the said scheme to Minority Educational Institutions (M.E.Is.) as well, though the judgment did not purport to say so. Complaining against the extension of the scheme to them, certain M.E.Is. approached this Court by way of writ petitions. Writ Petition (C) No. 350 of 1993 was filed by Islamic Academy of Education, Mangalore (claiming to be a religious M.E.I.) and Writ Petition (C) No. 355 of 1993 was filed by S. Venkatesha Education Society (claiming to be a linguistic minority). While the Islamic Academy of Education was running a dental college in Karnataka, S. Venkatesh Education Society was running an engineering college in that State. These writ petitions came up before a Bench comprising the Hon'ble Chief Justice and one of us (B.P. Jeevan Reddy, j.) on May 14,1993. The Bench made the following interim order. "2. There will be an interim order in the following terms :- (i) Fifty per cent of the total intake in the petitioner's 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 percent of the intake may be regulated by the petitioners to admit candidates belonging to the particular religious or linguistic minority. However, the selection shall be made strictly on the basis of merit among the candidates seeking admission to the institutions. Such merit shall be determined on the basis of the academic performance of 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 these three modes and apply it uniformly. 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.";