A.P. Shah, C.J. - (1.)THESE Appeal are directed against the common judgment and order passed by the learned Single Judge in a batch of Writ Petitions. The challenge in these Petitions is to the constitutional validity of some of the provisions of the Tamil Nadu Admission in Professional Educational Institutions Act, 2006 (Act No.3 of 2007) (for short 'the Act'), and the consequential Government Order Nos. 115 and 87 dated 25-05-2007 and 16-03-2007 respectively issued in pursuance of the Act. The writ petitioners are the unaided minority and non-minority professional colleges and the Consortium of Self Financing Professional, Arts & Science Colleges. The main ground of attack in the Writ Petitions is that the provisions of the Act are violative of the petitioners'fundamental rights guaranteed under Articles 19(1)(g) and 30 of the Constitution of India.
(2.)THE factual matrix of the matter may be noticed first. From the year 1993-94 till the year 2002-03, admissions to self-financing Medical and Engineering Colleges were made on the basis of the scheme framed by the Supreme Court in the judgment reported in Unnikrishnan v. State of Andhra Pradesh, 1993 (4) SCC 111. Subsequently, in T.M.A. Pai Foundation v. State of Karnataka , 2002 (5) CTC 201 : 2002 (8) SCC 481 , a 11 Judge Bench ruled that the decision in Unnikrishnan's case insofar as it framed the scheme relating to the admission and fixation of fee was unconstitutional. THE scheme framed in the said decision and the consequential directions given by the various authorities were overruled. THE Supreme Court in the said case further ruled that the minorities, as well as the non-minorities have a right to establish and administer educational institutions which are referable to Articles 30, 19 and 26 of the Constitution of India respectively, and the said right to establish and administer includes the right to admit students. By the said judgment, the Supreme Court recognized the autonomy of the unaided private institutions in the matter of governing admissions and held such institutions cannot be deprived of their right to select students, subject to adhering to the merit based selection.
After the judgment in T.M.A. Pai case was delivered on 30-01-2002, different statutes and regulations were enacted by different State Governments, Union of India, and some of the State Governments and educational institutions understood the majority judgment in T.M.A. Pai case in different perspective leading to litigations in several Courts and passing of various orders by various Courts. When the interim orders were assailed before the Supreme Court, the Supreme Court referred such of those matters to the Constitution Bench, so as to clarify the doubts and anomalies, if any arising out of the judgment in T.M.A. Pai case . The said reference was decided by the Constitution Bench in Islamic Academy of Education v. State of Karnataka, 2003 (3) CTC 719 : 2003 (6) SCC 697 . The Constitution Bench sought to clarify the judgment in T.M.A. Pai case under four heads/questions. The private unaided professional institutions contended before the Supreme Court that they were entitled to fill up all the seats by themselves, evolving their own method of admission, while the State Governments contended that the judgment in T.M.A. Pai case enabled them to fill up a percentage of the seats in the private institutions and that the admission of students under the management quota should be based on merit through a Common Entrance Test conducted by the State Government/ Agencies. The aforesaid issues which were covered by questions Nos. 3 and 4 were answered by the Bench in the above mentioned case holding that the Government was entitled to fill up a certain percentage of seats in the private unaided professional colleges which would vary from State to State depending on the exigencies, and that different percentages can be fixed for minority institutions and that the managements are entitled to fill up only the remaining seats. The Supreme Court further held that the Managements of both minority and non-minority professional colleges can admit students in the quota allotted to them either on the basis of the Common Entrance Test conducted by the State or on the basis of a Common Entrance Test conducted by an Association of all Colleges of a particular type in the State namely, Medical, Engineering, etc. Insofar as minority colleges are concerned, it was held that they will be entitled to fill up their quota with their own students on the basis of inter se merit among those students. The Supreme Court issued directions to the State Governments to appoint a Permanent Committee to ensure that the test conducted by the Association of Private Colleges is fair and transparent.

Pursuant to the judgment of the Supreme Court in Islamic Academy case, theState of Tamil Nadu issued orders fixing 50% of the seats in non-minority institutions to be filled up by the State through the Common Entrance Test conducted by the State and permitting the private self-financing non-minority institutions to fill up the remaining 50% seats. In minority institutions, 30% of the seats were to be filled up by the Government leaving the minority institutions to fill up the remaining 70% seats. The minority as well as non-minority institutions were permitted to conduct a Common Entrance Test through the petitioner consortium and they were also permitted to admit students pertaining to management quota based on the merit resulting from the entrance examination and marks obtained in the qualifying examinations.

In the meantime, number of Writ Petitions were filed in various Courts raising several issues which were not resolved in T.M.A. Pai case as also the contentions to the effect that the judgment in Islamic Academy was contrary to the judgment in T.M.A. Pai case. The said matters were referred to a Seven Judge Bench of the Supreme Court which rendered its judgment in the case of P.A. Inamdar & others v. State of Maharashtra, 2005 (4) CTC 81: 2005 (6) SCC 537. The Seven Judge Bench answered the issues posed before it under four heads. The Bench held that the States have no power to insist on seat sharing in unaided private professional institutions by fixing a quota of seats between the Management and the State. The Bench, further, held that neither in the judgment in T.M.A. Pai case nor in the Kerala Educational Bill case , there is anything which would allow the State to regulate or control admissions in 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. The Bench held that such sharing would amount to nationalization of seats which was specifically disapproved in T.M.A. Pai case . The Bench further held that such imposition of quota or enforcing reservation policy of the available seats in unaided professional colleges is an act constituting encroachment on the right of the private institutions which cannot be held to be regulatory within the meaning of Article 19(6) of the Constitution of India. The Bench accordingly held that it is unable to approve the scheme in Islamic Academy case to the extent that it allows the State to fix quota for seat sharing between the Management and the State on the basis of local needs of each State in unaided institutions of both minority and non-minority categories. That part of the judgment in Islamic Academy case was declared as not laying down the correct law and running counter to the judgment in T.M.A. Pai case. The Supreme Court clarified that paragraph-68 of the majority opinion in T.M.A. Pai case could be construed only to mean that unaided institutions could voluntarily agree for seat sharing with the State Government and not otherwise.

Notwithstanding the judgment in P.A. Inamdar case, the Permanent Committee before which permission was sought for by the petitioner to conduct of Common Entrance Test passed an order on 9-5-2006 containing several directions. The said directions inter alia directed that the admissions are to be made only on the basis of a rank list prepared by the centralized counseling following single window system and also to follow the rule of reservation by the non-minority private engineering colleges. This direction issued by the Permanent Committee was challenged by the petitioner- Consortium as well as by the private institutions. When the matters were pending before this Court, there was a consensus arrived at between the Government and the petitioner-Consortium in the matter of admissions pertaining to the academic year 2006-07. Accordingly, an affidavit was filed before this Court by which the petitioner-Consortium agreed for seat sharing between the Government and the private self-financing institutions for the academic year 2006-07. It was agreed that in respect of non-minority institutions, 65% of the seats in their institutions could be filled by the Government, while the remaining 35% could be filled by the respective colleges. In respect of minority institutions, 50% of the seats could be filled by the Government while the remaining 50% could be filled by the respective colleges and 15% of the seats within the Management quota was permitted to be filled up with Non-Resident Indians (NRIs). The admissions were agreed to be made based on the marks obtained in the Common Entrance Test conducted by the petitioner-Consortium taken along with the marks secured in the qualifying examinations. The State Government also filed an affidavit agreeing to follow the practice, which was followed for the previous academic year in the matter of admission of students by private colleges and making it clear that they do not insist that the self-financing colleges should follow the single window system. The affidavits filed by the petitioner were taken on record and in terms of the settlement arrived at between the parties, the Writ Petitions were disposed of by an order passed by the learned Single Judge of this Court reported in Consortium of Self-Financing Professional Arts and Science Colleges v. Permanent Committee for the conduct of the Common Entrance Test, 2006 (3) MLJ 648. While disposing of the said Writ Petitions, by recording the affidavit and issuing directions thereof, the learned Single Judge observed that the aforesaid directions though based on a consensus reached between the parties were nevertheless in conformity with the principles enunciated by the Supreme Court.

(3.)IT is necessary to mention at this stage that the self-financing medical colleges without prejudice to their rights recognized in T.M.A. Pai case and P.A. Inamdar case offered 50% of the total seats in their institutions for the academic year 2006-07 for allotment by the Government under single window system. IT seems that thereafter the Managements of the Institutions agreed to enhance the said quota to 65% and the remaining 35% were to be filled up by the medical colleges on multiple window basis.
When the matters stood thus, the Tamil Nadu State Legislature enacted Tamil Nadu Act 3 of 2007 on 06-12-2006 and the assent of the President was received on 03-03-2007 and the Act was brought into force on 07-03-2007. It will be convenient to refer to some of the provisions of the Act as they are material for the purpose of this case. The Object of the Act, as stated in the short title and in the preamble, is to provide for 'admission to professional degree courses such as Engineering, Medicine, Dental, Agriculture and other allied courses on the basis of the marks obtained in the qualifying examinations'. Sections 2(c)(iii), 4 and 5(4) are the provisions which are impugned as unconstitutional and they are as follows: '.

2. In this Act, unless the context otherwise requires: (a) (b) .. (c) Government seats mean: (i) (ii) (iii) 65% of the seats in each branch in non-minority unaided professional educational institutions and 50% of the seats in each branch in minority unaided professional educational institutions in accordance with the consensus arrived at between such professional educational institutions and the Government.'Section 4 : Admission to Unaided Professional Educational Institutions: Notwithstanding anything contained in any relevant law or any rules, regulations or by laws made thereunder, admission to seats, excluding the seats referred to in item (iii) of Clause (c) of Section 2, in all unaided professional educational institutions shall be made by the consortium of unaided professional educational institutions approved by the Government or by any Authority authorized by the Government, on the basis of the marks obtained by a student in the relevant subjects, in the qualifying examination. Section 5(4) : The appropriate authority and the consortium of unaided professional educational institution shall prepare the rank lists for admission of students to the seats referred to in Section 3 and Section 4, respectively and allot students through centralized counseling.'Section 2(c)(iii) of the Act declares that 65% of the seats in each branch in non-minority unaided professional educational institutions and 50% of the seats in each branch in minority unaided professional educational institutions shall be Government seats in accordance with the consensus arrived at between such professional educational institutions and the Government. Section 4 of the Act provides that admission to seats, excluding the seats referred to in item (iii) of Clause (c) of Section 2, in all unaided professional educational institutions shall be made by the consortium of unaided professional educational institutions approved by the Government or by any authority authorized by the Government, on the basis of the marks obtained by a student in the relevant subjects, in the qualifying examinations. Then Section 5(4) of the Act provides that such admissions shall be through centralized counseling.

By G.O.Ms. No.87 dated 16-03-2007, the State Government directed that the apportionment ratio fixed between the Government and the Management of Unaided Minority/Non-Minority institutions shall be followed for admission to Under Graduate Courses to unaided Medical, Dental and other allied courses for the academic year 2007-08. By subsequent G.O.Ms. No.115 dated 25-05-2007, the State directed that the private engineering colleges shall admit the students in the management quota based on the marks obtained by them in the qualifying examinations by following the single window system and counseling in accordance with the provisions of the Act 3 of 2007.