JUDGMENT Vineet Saran, J.
1. All these writ petitions raise common questions of facts and law and thus, they have been taken up and heard together. The dispute relates to the fixing of the Management quota for admissions in private unaided professional educational institutions and the fee to be charged by them. It may be clarified at the threshold that the question of the Management quota and fee structure to be charged, which is being considered by this Court, is only with regard to the Academic Session 2003-04. As regards the subsequent years, the fee and quota would be determined as per the guidelines issued by the Supreme Court in matters concerning this issue.
2. A brief background of the dispute may first be considered before the facts of these cases are dealt with. The question of admission and the fee structure in private unaided professional educational institutions (alongwith other educational institutions) has been a subject nattier of dispute for the last several years and has been taken up by the Courts and considered on more than one occasion. Although imparting education is essentially a State function but because of the inability of the State to carry it out efficiently, over the past few years, there has been a rapid growth of the private educational institutions and several fresh disputes have thus cropped up. Besides other issues, the question as to what percentage of seats can be filled up by the Management and what fee structure is to be charged by them from their students was considered in detail by the 11 Judges Bench of the Apex Court in the case of T.M.A. Pai Foundation V. State of Karnataka, AIR 2003 S.C. 355 : (2002) 8 SCC 481 : (2002) 3 UPLBEC 2817 (SC). In the said judgment certain guidelines had been issued relating to the manner in which admissions to private professional and non- professional colleges (both aided and unaided) would be regulated. It was also provided that such private educational institutions would only charge a uniform, fee from all their students and there could not be a fee structure which permitted different fee to be charged from different classes of students. The said judgment was interpreted differently by the respective State Governments and the Union of India as well as by educational institutions, in their own way and as it suited them. The matter thus came up before a five Judges Bench of the Apex Court for resolving the conflict of interpretations given by the different parties. Thus a Bench of five Judges, in the case of Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 : (2003) 3 UPLBEC 2424 (SC), ironed out the creases with regard to the interpretations given to the judgment in T.M.A. Pai's case. The Supreme Court framed four questions, which were considered by them and the same, have been set out in Paragraph 6 of the said judgment and are quoted below :--
(1) whether the educational institutions are entitled to fix their own fee structure;
(2) whether minority and non-minority educational institutions stand on the same footing and have the same rights;
(3) whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent; and (4) whether private unaided professional colleges are entitled to admit students by evolving their own method of admission.
3. Question Nos. 1, 3 and 4 are the ones which are relevant for the purposes of the present cases.
4. While deciding Question No. 1, the Supreme Court held that there could be no fixing of a rigid fee structure by the Government. After observing that imparting education is essentially of charitable nature, it was held that each institution must have the freedom to fix its own fee structure, taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. It was provided that they must also be able to generate surplus, which must only be used for the betterment and growth of the educational institution, but there could be no profiteering and capitation fee charged by the institutions. It was further directed that in order to give effect to the judgment in T.M.A. Pai's case, the respective State Government/ concerned authoritites shall set up, in each State, a Committee headed by a retired High Court Judge, which shall have control over the private educational institutions with regard to the fee charged by them.
5. While deciding Question Nos. 3 and 4 which relates to filling up of seats in the private unaided professional colleges, the Supreme Court was conscious of the unfair practice adopted by some unaided professional institutions. They considered the directions issued in T.M.A. Pai's case that merit was to be of prime consideration and at the same time, the Management (of unaided professional institutions) was to be given sufficient direction in admitting students. The Supreme Court classified the majority view in T.M.A. Pai's case in this regard into seven parts :-
"Firstly, it deals with the unaided minority or non-minority professional colleges.
Secondly, it will be unfair to apply the rules and regulations framed by the State Government as regards the Government-aided professional colleges to the unaided professional colleges.
Thirdly, the unaided professional institutions are entitled to autonomy in their administration; while at the same time they should not forego or discard the principles of merit.
Fourthly, it is permissible for the University or the Government at the time of granting recognition to require an unaided institution to provide for merit-based admission while at the same time giving the management sufficient discretion in admitting students.
Fifthly, for unaided non-minority professional colleges certain percentage of seats can be reserved for admission by the management our of those students who have passed the common test held by itself or by the State/University and for applying to the College/University for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency.
Sixthly, the provisions for poorer and backward sections of the society in unaided professional colleges are also to be provided for.
Seventhly, the prescription for percentage of seats in unaided professional colleges has to be done by the Government according to the local needs. A different percentage of seats for admission can be fixed for minority unaided and non-minority unaided professional colleges."
6. Thus it was clearly provided that in cases of private unaided professional colleges, certain percentage of seats could be reserved for admission of students by the Management. The prescription of percentage of seats, which could be filled up by the Management, was left to be done by the Government, according to the local needs. For fixing the percentage of Management quota, the Supreme Court had directed that another Committee be set up by the State Government headed by a retired High Court Judge, which would ensure that the test conducted by the association of colleges for filling up the Management quota of the college is fair and transparent. Howerver, it was stated that the selection of the students must be strictly on the basis of merit as per the merit list prepared by the college. It was left open for the Committee to exempt institutions from the common entrance test, to be conducted by the association of colleges, where institutions have adopted their own admission procedure and admitted students in a fair manner for at-least 25 years.
7. This direction for setting up two sets of Committees in each State had been issued by the Supreme Court under Article 142 of the Constitution of India and was to remain in force till appropriate legislation was enacted by the Parliament. The judgment in the said case was delivered on 14th August, 2003 and considering the fact that the admissions for the Session 2003-04 were already in progress, in Paragraph 21 of the judgment, another direction had been issued, which is quoted below :--
"So far as the year 2003-04 is concerned, time is running out as the outer time-limit for admission is fast approaching or has gone. To meet the urgent situation without going into the issues involved in the various petitions/applications, we direct that the seats be filled up by the institution and the State Governments in the ratio 50:50."
8. By giving such directions for the year 2003-04, it was clear that the arrangement to be made through the Committees to be set up by the respective State Governments was to apply for the Session 2004-05 onwards. Thus certain disputes have arisen with regard to the fixation of the Management quota, fee, etc. for the current session 2003-04.
9. In the backdrop of the aforesaid facts I shall now proceed to consider the facts of the cases at hand and the questions/issues that have been raised in these writ petitions.
10. The present writ petitions relate to the admission in B.Ed. and B.P.Ed. courses in the petitioner institutions which all are private unaided professional educational institutions. Undisputedly, earlier the admissions in the Universities as well as colleges, such as those of the petitioners, were being governed by the provisions of Section 28 of the Universities Act, which dealt with the setting up of Admission Committees by the Universities. In pursuance thereof, the Government had issued U.P. State Universities (Regulation of Admission to Courses of Instruction for Degree in Education in Affiliated, Associated and Constituent Colleges) Order, 1987 (hereinafter referred to as Order of 1987). Paragraph 3 deals with qualifications for admission and the responsibility of preparing the merit list. Paragraph 7 of the said Order deals with examinations for admission that were to be conducted by the University. The National Council for Teachers Education Act, 1993 came into force with effect from 1-7-1995. The N.C.T.E. Thereafter took over form the State Government/Universities, the functions with regard to admission in the institutions. The State Government thereafter amended the Order of 1987 by the notification dated 4th July, 1997 whereby the minimum qualifying marks of 45% in the qualifying examination had been provided for. Pursuant to Section 12 of the N.C.T.E. Act, the N.C.T.E. framed its Regulations, which were amended in 2001. Clause 3 of the said Regulations relates to the eligibility criteria regarding admissions. Besides providing for the minimum qualifying marks to be obtained in the qualifying examinations, it also provides for admissions to be regulated as per the policy laid down by the State Government/ University or marks obtained in the qualifying examination or common entrance test by the State Government/University.
11. Thereafter with regard to fee structure and the admissions to be made in self financing private unaided professional educational institutions such as the institutions of the petitioners, the State of U.P. issued a Government Order dated 11-11-1997, the salient features of which, relevant for the purposes of this issue, are as follows :-
(i) 50% of the seats were to be filled up from the normal category;
(ii) 35% from self supporting category; and
(iii) 15% from N.R.I./N.R.I. sponsored quota.
12. The fee structure fixed by the said Government Order for the said three quotas of students was 6,000/-, 20,000/- and 30,000/- respectively, meaning thereby that the management did not have the discretion to charge fee at their choice but only that as had been provided for by the Government Order. After the pronouncement of the judgment in T.M.A. Pai's case on 31st October, 2002, the State of Uttar Pradesh, by its Government Order dated 27-5-2003, withdrew certain provisions from the Government Order dated 11-11-1997 which related to the classifications of seats, fee structure and the percentage of classification. The remaining provisions regarding the procedure for admission, etc. as provided in the Government Order dated 11-11-1997 were to remain effective.
13. By another Government Order dated 2-7-2003, the State Government provided that for the Session 2003-04, 85% of the seats for admission would be filled up through State agency and 15% by the Management of the respective educational institutions in accordance with the guidelines that may be issued by the concerned University, with the condition that the same should be based on merit as well as be fair and transparent. As regards the fee for professional educational courses, as in the case of the petitioners, the upper limit of the same was fixed at Rs. 13,000/- However, it was also provided that in case a higher fee was to be charged then the concerned institution could send its proposal to a Committee which had been constituted by the said Government Order, and after examining the facts, the Committee could grant permission to charge higher fee, if it considered the same to be proper and necessary.
14. For the purpose of convenience, the Writ Petition No. 49270 of 2003 shall be treated as the leading case. The prayers made in the said writ petition may first be noticed, which are as follows :--
"issue a writ, order or direction in the nature of certiorari quashing the G.O. dated 2-7-2003 (Annexure-1);
issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere with the right of the petitioner to charge the fee for the session 2003-04 as average of the fee charged for the three categories in the previous years on the basis of G.O. dated 11-11-1997;
issue a further writ, order or direction in the nature of mandamus commanding the respondents not to interfere whit the right of petitioner to fill up 50% seats in the petitioner's institution for the session 2003-04 as management quota as per directions of the Hon'ble Supreme Court.
issue any other or further writ, order or direction which the Court may deem fit and proper in favour of the petitioner.
award the Cost of the petition."
15. The issues now to be determined in these writ petitions are as follows :--
(i) The applicability of the Government Order dated 2-7-2003;
(ii) The percentage of seats which could be filled up by the Management for the Academic Session 2003-04;
(iii) The procedure for filling up the seats; and
(iv) The fees which the management could charge from such students.
16. I have heard Sri P.N. Saxena, learned Senior Counsel appearing for the petitioners and Sri Anil Tiwari, learned Counsel appearing for the contesting respondent-Veer Bahadur Singh Purvanchal University, Jaunpur, who have put their respective cases in a meticulous and succinct manner. A counter affidavit has been filed on behalf of the University, to which a rejoinder affidavit has also been filed. Despite time having been granted to the State Government, no counter affidavit has been filed on their behalf. Looking to the urgency of this case, as it relates to the admission for the Academic Session 2003-04 which is already in progress, with the consent of the learned Counsel for the parties, these writ petitions have been heard and are being finally decided the admission stage itself.
17. The Issue No. (i) is with regard to the applicability of the Government Order dated 2-7-2003. The said Government Order is stated to have been issued in compliance of the directions issued by the Apex Court in T.M.A. Pai's case. However, considering the fact that the said judgement of the 11 Judges Bench had been further clarified by 5 Judges Bench in Islamic Academy case by its judgment dated 14-8-2003 which has dealt with the question of Management quota and fee, the said Government Order having been issued prior to the said judgement, would not be effective and enforceable in the present cases. The guidelines issued by the Supreme Court in this regard in the Islamic Academy case shall be effective and binding.
18. The issue No. (ii) relates to the percentage of seats, which could be filled up by the Management of the respective private unaided professional educational institutions for the academic session 2003-04. In this regard, clear directions have been issued by the Apex Court in the Islamic Academy case (which have already been quoted in the preceding paragraphs) that for the Session 2003-04, the seats to be filled up by the institution and the State Government would be in the ratio of 50:50. As such this Court is left with little discretion in varying or changing the same. However, while issuing the said direction, the Apex Court has made the following observations that "if by an interim order this Court has permitted any institution to fill up a higher percentage of seats and the seats have been filled up accordingly, the same shall not be disturded". It has not been pleaded from either of the sides that any such interim order had been issued in the present case and as such there is no question of fixing any higher Management quota.
19. Sri Anil Tiwari, learned Counsel for the contesting respondent-University, has submitted that the directions which have been issued by the Apex Court in this regard have been done so under Article 142 of the Constitution of India which would not be binding on the petitioners or the respondent-University as the same would govern only those parties in whose case such directions have been issued. Learned Counsel thus contended that the petitioners in the present case cannot take benefit of such directions of filling up the seat in the ratio of 50:50 for the session 2003-04. In support of his contention, Sri Tiwari has relied upon the decision of the Apex Court rendered in the case of J and K Public Service Commission v. Dr. Narendra Mohan and Ors., (1994) 2 SCC 630, where in it has been held that a direction issued under Article 142 of the Constitution of India on the peculiar facts and circumstances of a case would not govern the case of there parties. Thus it has been contended that the ratio of the judgment in Islamic Academy case would be binding on all, but not the direction with regard to fixation of Management quota for the year 2003-04, which is a direction issued under Article 142 of the Constitution of India, and cannot be taken to be a precedent. In the case of E.S.P. Rajaram v. Union of India, (2001) 2 SCC 186, it was held that the Supreme Court is vested with the powers under Article 142 of the Constitution of India to pass such decree or make such order as may be necessary for doing complete justice in any case or matter pending before it. Such unfettered powers have been given to the highest Court of the land to meet the ends of justice. However, it was contended that since the directions under Article 142 of the Constitution of India would govern or bind only the parties in the peculiar facts of that case, the petitioners could not be permitted to take its benefit and be allowed to do something indirectly which they would not be allowed to do directly, as the petitioners want something more than what has been directed or has been provided for in the Islamic Academy case. Learned Counsel contends that in the said case the directions issued with regard to the procedure to be adopted for filling up the Management quota would be the ratio of the case and be binding on all, but the direction issued for fixing the Management quota for the current academic session in the case of the parties therein would not apply to all as the same cannot be treated as a precedent. It has been contended that the said principle has been followed in the case of State of Punjab v. Rajesh Syal, (2002) 8 SCC 158.
20. I have considered the aforesaid submissions. The order passed by the Supreme Court in the Islamic Academy case is with regard to or concerning a particular issue, which is the same in the cases at hand. The issue being the same, the principles set out by the Supreme Court while dealing with admissions for the academic session 2003-04 would, in my view, apply to these cases also. This Court has only to fill in the gaps and come out with a workable solution for the purposes of granting admission in Management quota for the current session alone. For the subsequent years it is for the State Government and the concerned authorities or Committees as may be formed by the State Government as directed by the Supreme Court, according to which admission procedure and the Management quota would be determined. On principle it has been accepted in the Islamic Academy case that the Management of unaided private profession educational institutions are to be given certain discretion in admitting students. The Supreme Court in its discretion had provided that the quota be in the ratio of 50:50 percent for this session 2003-04 and I find no reason to differ from the same in the present case also.
21. Now coming to issue No. (iii) which is with regard to the procedure to be adopted by the Management for filling up the seats of their quota, in my view, the existing provedure by which they have been admitting the students of Management quota should be followed. A consensus of the Government Orders dated 11.11.1997, 2.7.2003 and 19.7.2003 as well as the guidelines issued by the Supreme Court and the NCTE provided for the Management quota to be filled up on the basis of merit, and that the procedure should be fair and transparent. The procedure that has been followed for filling up such seats has been that they are advertised in newspapers and applications are invited and the seats are filled up strictly on merits on the basis of the marks obtained in the High School/Intermediate examinations as well as the marks obtained in the qualifying examination, which is Graduation. The merit list so prepared by the concerned college is then sent to the University and the admissions are granted only after the University has approved the same. The Government Orders also provide that the seats of Management quota be filled up in accordance with the guidelines that may be issued by the respective Universities. For the current session 2003-04, the respondent University has issued guidelines vide its circular dated 21-10-2003, which are on the same lines as mentioned above.
22. The endeavour of the Court in this case is to come out with a practical solution for resolving the dispute with regard to the procedure for filling up the seats of Management quota. For this find that the procedure which was being adopted by the Management and the University is reasonably fair and transparent and appears to be to the satisfaction of both the parties because in their pleadings, none of the parties have complained with regard to the procedure as had been adopted earlier. Even the Supreme Court has in T.M.A. Pai's case, recognized that merit could be determined by considering the marks that the students obtain at the qualifying examination or school leaving certificate stage and the NCTE, in its Regulations has also accepted that marks obtained in the qualifying examination could be the basis of determining the merit for the purposes of admissions. As such the existing procedure which is being adopted, would also be in conformity with the guidelines issued by the Supreme Court, NCTE and the State Government.
23. It may be made clear that in this case, this Court is actually not deciding the validity of the Government Orders and the action taken in pursuance thereof but is providing for a reasonable stop gap arrangement with regard to certain disputes which have come up because of uncertainties due to lack of complete and proper guidelines with regard to the procedure to be followed for admissions in the session 2003-04. Those procedure, whether provided in the Government Orders or the circulars of the University, which are in conformity with the directions/ guidelines if the Supreme Court, and have been found to be fair and practical are being accepted by this Court.
24. With regard to the feasibility of the directions which are being issued, the question which may be raised is that the directions for admission for the academic session 2003-04 are being issued now when the said session would normally be coming to an end. From the record it is clear that on the contrary, the session is still at the beginning stage and the admissions for this session in the colleges are still in progress. The list of students for filling or 50 percent of the seats has been sent by the University to the respective colleges as late as in December, 2003 and admissions on such seats are still going on. The advertisements inviting applications to fill up the seats of Management quota have already been issued by the institutions in November, 2003. The merit list (on the basis of the procedure as given above) for filling up the Management quota should now be finalised by the petitioner-institutions as expeditiously as possible. It has been stated that the applications have already been received and the petitioner institutions would send their merit list along with the requisite documents for such admissions to the respondent-University within ten days from the receipt of a certified copy of this order. The University shall communicate its decision with regard to the admission of the students to be made by the petitioner-institutions in their Management quota within a week thereafter and the final admission list of selected candidates for the Management quota of the petitioner-institutions for the academic session 2003-04 would be published on the notice board of the petitioner-institutions within three days thereafter. The admission process should then be completed immediately thereafter as early as possible. In this manner the procedure for admission for the current session can be given effect to.
25. Now it leaves us with the last issue No. (iv) which is with regard to the fee that may be charged from the students for the session 2003-04. In Islamic Academy case, the Supreme Court has left the question of determination of fee to the discretion of educational institutions but has held that the same should not be exorbitant and the institution should not make profit out of the same except for generating a reasonable amount of extra fund to be utilized for providing facilities necessary for the benefit of the students. Further as per the directions of the Apex Court, different fee cannot be charged from different class of students. The fee fixed by the Government Order dated 2-7-2003 was upto Rs. 13,000/- with liberty to the institution to apply for charging fee beyond the said limit, which could be charged only after permission was granted by the Committee constituted by the said Government Order. Learned Counsel for the petitioner has submitted that the fee of Rs. 13,000/- fixed by the said Government Order is grossly insufficient for meeting the current expenses of education. It has been submitted that by the Government Order dated 11-11-1997 the fee structure was of Rs, 6,000/- for 50 percent of the seats of normal quota; Rs. 20,000/-for 35% of the seats falling in self-supporting category and Rs. 30.000/- for the remaining 15% falling in N.R.I./N.R.I. sponsored quota. The average fee according to the said fee structure comes to Rs. 14,500/- per student, which calculation is not disputed by learned Counsel for either of the parties. It has been submitted that the petitioner should be permitted to charge fee at least at the average rate of the fee structure, which had been fixed in the year 1997. Considering the facts of the case and the totality of the circumstances, it is provided that for the current session 2003-04 the petitioner-institution shall be permitted to charge fee upto the maximum of Rs. 14,500/- from each student. As has already been clarified in the very beginning, the arrangement being made shall be applicable only for the current session 2003-04.
26. Thus, the conclusion and the answers to the four issues would be as follows :--
Issue No. (i).--The Government Order dated 2.7.2003 would not be made applicable to the case of the petitioners.
Issue No. (ii).--The seats to be filled up by the Management of the educational-institutions and the State Government would be in the ratio of 50 : 50.
Issue No. (iii).--The procedure for filling up such seats of Management quota would continue as was being followed in the proceeding years and would be strictly in compliance of the instructions issued by the respondent-University vide its circular dated 21.10.2003.
Issue No. (iv).--The fee which the Management could charge from the students would be uniform and the maximum fee chargeable would be Rs. 14,500/-.
27. Before parting with this case, in view of the inaction of the State Government in the matter, certain further directions, although not prayed for, are also required to be issued. As has already been mentioned above, the State Government has not filed a counter-affidavit and as such it is not clear as to what is their progress with regard to the setting up of the Committee as directed by the Apex Court in the Islamic Academy case. Learned Standing Counsel has also not been able to provide any information or assistance in this regard as he states that he has not received any instructions in this matter. This further directions are required to be issued to the State of U.P. to comply with the directions issued by the Apex Court in Islamic Academy case with regard to the setting up of the two Committees for having control over the private educational institutions with regard to fee charged by them and for regulating the procedure for filling up the seats of Management quota, As such, in order that for the Academic Session 2004-05 and thereafter, no such issues or disputes may come up, as has already been laid by the Supreme Court in the Islamic Academy case, it is directed that the State of U.P. shall take immediate steps for setting up the two Committees and also comply with the other directions given therein, as expeditiously as possible, preferably by 15th April, 2004.
28. Subject to the aforesaid directions, this writ petition stands allowed.
However, there shall be no order as to cost.