Arun Tandon, J. - (1.) SRI A. K. Goyal advocate on behalf of the petitioner, SRI Adish Kumar Agrawala Additional Advocate General assisted by Additional Chief Standing Counsel on behalf of respondent Nos. 1, 2 and 4, SRI V.B. Upadhyaya senior advocate, assisted by SRI Neeraj Tiwari, on behalf of respondent No. 3.
(2.) PETITIONER No. 1 and 2 are societies registered under the Societies Registration Act, 1860. The members of the said society are self financed private institutions of higher education, situate within the State of U. P. PETITIONER Nos. 3 and 4 are institutions imparting education in professional courses of B. Tech., B. Pharm., B. Arch., B.H.M.C.T., M.B.A. M.C.A. etc. Both the institutions are member of petitioner Nos. 1 and 2 society. This writ petition was filed initially for quashing the notification dated 25th April, 2005 issued by the Secretary, U. P. Government, addressed to the Vice Chancellor of all the Universities, stating therein that for the academic year 2005-06, the management quota seats in respect of engineering and' other professional self financed courses would be 15%, while remaining 85% seats termed as State seats would be filled on the basis of the entrance examination conducted by the Universities or such other body appointed for the purpose. As also for a direction upon the respondents not to recommend any candidate to the petitioner institutions on the basis of the entrance examination conducted by the U. P. Technical University commonly known as SEE-UPTU-2005, who has secured less than 60% marks in the said entrance examination. Lastly it is prayed that seats, which remain unfilled after prayer No. 2 being granted, may be permitted to be filled as management quota seats by the institutions on the basis of any of the recognized mode of judging the merit of the candidates. During pendency of the said writ petition, the Committee, constituted under the judgment and order of the Hon'ble Supreme Court in the case of Islamic Academy of Education v. State of Karnataka, 2003 (4) AWC 3119 (SC) : 2004 (1) SCCD 125 : (2003) 6 SCC 697, headed by retired Justice H. N. Tilheri in its meeting dated 16th July, 2005 rejected the application made on behalf of the Welfare Association of Self Financed Institutions for increase of management quota and directed that the same would continue to 15% only. The said decision of the Committee has been challenged by means of the amendment application, which has since been allowed by this Court.
(3.) AT the time the arguments were heard in the present writ petition, serious contentions were raised with regards to fixation of 15% management quota seats in respect of professional self financed unaided institutions. Counsel for the parties placed reliance upon the various paragraphs of the judgments of Hon'ble Supreme Court in the case of T.M.A. Pai Foundation v. State of Karnataka, 2002 (4) AWC 3297 (SC) : 2002 (8) SCC 481 ; Islamic Academy of Education and another v. State of Karnataka and others, 2003 (4) AWC 3119 (SC) : 2004 (1) SCCD 125 : 2003 6 SCC 697 as well as Saurabha Chaudhary and others v. Union of India and others, 2004 (3) AWC 2637 (SC) : 2004 (3) SCCD 1224 : 2003 (11) SCC 146, as well as upon the interim order of the Hon'ble Supreme Court dated 1st August. 2005 passed in Special Leave Petition No. 14742 of 2005, State of U. P. v. M.S.P.G. College and others. However, it is not necessary for this Court to enter into the merits of the contention so raised on behalf of the parties in respect of fixation of management quota qua self financed institution inasmuch as the controversy in that regard has been laid down to rest in the latest Constitution Bench judgment of Hon'ble 7 Judges of the Hon'ble Supreme Court in the case of P.A. Inamdar and others v. State of Maharashtra and others, Civil Appeal No. 5041 of 2005 : 2005 (3) SCCD 1407 : (2005) 8 SCC 139. The Hon'ble Supreme Court of India, while answering question No. 1 has held as follows : "As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 39 (1) or a reasonable restriction within the meaning of Article 19 (6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit. The observations in paragraph 68 of the majority opinion in Pai Foundation, on which the learned counsel for the parties have been much at variance in their submissions, according to under Section, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation, if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in paragraph 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the State to cater to the educational needs of weaker and poorer sections of the society. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats. We make it clear that the observation in Pai Foundation in paragraph 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees. For the aforesaid reasons, we cannot approve of the scheme evolved in Islamic Academy to the extent it allows States to fix quota for seat sharing between management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. That part of the judgment in Islamic Academy, in our considered opinion, does not lay down the correct law and runs counter to Pai foundation." ;