JUDGMENT M. Katju, J.
1. This special appeal has been filed against the impugned judgment of the learned single Judge, dated 9.2.2004
2. We have heard the learned counsel for the parties and have perused the record.
3. A large number of writ petitions were filed questioning the G.O. dated 2.7.2003, whereby it was provided that for the session 2003-04, 85% of the seats would be filled through the State agency and the remaining 15% by the management of the respective institutions in accordance with the guidelines that may be issued by the concerned University. The aforesaid Government order dated 2.7.2003 further provided that the upper limit of fees that could be charged by the colleges was Rs. 13,000. However, in case a higher fee was to be charged then the concerned institution could submit its proposal to a committee which had been constituted by the State Government and after examining the facts the said committee could grant permission to the college to charge higher fee, if it considered the same to be proper and necessary.
4. In a nut shell the dispute raised in all the writ petitions related to fixing of the management quota for admissions in private unaided professional educational institutions and the fee to be charged by them. The said dispute was only with regard to academic session 2003-04.
5. The aforesaid question came to be considered by the Eleven Judge Bench of the Supreme Court in the case of T.M.A. Pai Foundation v. State of Karnataka, 2002 (4) AWC 3297 (SC) : (2002) 8 SCC 481. In this judgment certain guidelines have been issued relating to the manner in which admissions to private professional and non-professional colleges (both aided and unaided) were to be made. The said judgment 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.
6. The aforesaid judgment of the Supreme Court was further explained by a Bench of Five Judges in the case of Islamic Academy of Education v. State of Karnataka, 2O03 (4) AWC 3119 (SC) : 2004 (1) SCCD 125 : (2O03) 6 SCC 697. Apart from other questions which were decided by the Supreme Court, the questions whether the educational institutions were entitled to fix their own fee structure, whether the private unaided professional colleges were entitled to fill in their seats to the extent of 100% and if not to what extent and whether they could evolve their own method for making admission, were also considered.
7. The Supreme Court held in the aforesaid case that:
(1) Every 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 could be used for the betterment and growth of the educational institution. The Supreme Court further held that the institutions should not charge any capitation fee or should not earn profit out of it.
(2) It was further directed that the "respective State Governments/ concerned authorities shall set up a committee headed by a retired Judge of the High Court which shall have control over the private educational institutions with regard to the fee charged by them.
(3) It is permissible for the University or the Government at the time of granting recognition to require an unaided institution to prove for merit based admission while at the same time giving the management sufficient discretion in admitting students.
(4) For unaided non-minority profession colleges certain percentage of seats could be reserved for admission by the management out 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.
(5) The prescription for percentage of seats in unaided professional colleges have to be done by the Government according to the local needs.
8. The Supreme Court directed that another committee be set up by the State Government headed by a retired Judge of the High Court which would ensure that the test conducted by the association of colleges for filling up the management quota was fair and transparent. However, 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 colleges. The committee constituted for the purpose was empowered to exempt institutions from the common entrance test, where the institutions had adopted their own admission procedure and admitted students in a fair manner for at least 25 years.
9. Since the time was running out in so far as the academic year 2003-04 was concerned it was directed by the Supreme Court that the seats be filled up by the institution and the State Government in the ratio 50 : 50.
10. The judgment in Islamic Academic's case (supra) of the Supreme Court was delivered on 14.8.2003, i.e., after the Government order dated 2.7.2003 had been issued.
11. The learned single Judge in the judgment under appeal has simply followed the aforesaid two judgments given by the Supreme Court, ft has been held firstly that the G.O. dated 2.7.2003, could not be enforced in view of the judgment given by the Supreme Court in the aforesaid two cases.
12. Secondly, in so far as the percentage of seats which could be filled up by the management of the respective private colleges was concerned it has been held that in view of the pronouncement made by the Supreme Court the ratio 50 : 50 should be followed.
13. Thirdly in so far as the procedure to be adopted by the management for filling up the seats of their quota is concerned it has been held by the learned single Judge that the existing procedure should be followed.
14. Fourthly in so far as the fee to be charged by the colleges is concerned the G.O. dated 2.7.2003, provided that the colleges could charge 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 State Government. Previously vide G.O. dated 11.11.1997 the fee structure was Rs. 6,000 for 50% of the seats falling in self supporting category and Rs. 30,000 for the remaining 15% of the seats falling in NRI/NRI sponsored quota. The average fee according to the aforesaid fee structure came to Rs. 14,500 per student. The learned single Judge has therefore directed that for the session 2003-04 the colleges could charge fee upto the maximum of Rs. 14500 per student.
15. The learned single Judge obviously had in mind the judgment giveh by the Supreme Court in T.M.A. Pai's case (supra) whereby it was held that a uniform fee should be charged by the colleges from all the students and there could be a fee structure which permitted different fee to be charged from different classes of students.
16. The judgment of the learned single Judge is confined only to the current session, i.e., academic session 2003-2004. The session 2003-04 is now coming to an end. The judgment of the learned single Judge has already been acted upon. As mentioned above, the learned single Judge has simply followed the judgment given by the Supreme Court in the aforesaid two cases and therefore the view taken by the learned single Judge appears to be correct.
17. Apart from the merits of the matter, from a perusal of the memo of appeal and from a perusal of the certified copy of the judgment it appears that the appellant was not a party in the writ petition and therefore, the special appeal at his instance is not maintainable. He has not moved any application seeking leave to file an appeal along with the special appeal. Hence, also the present special appeal is not maintainable, vide Smt Jatan Kanwar v. Golcha Properties, AIR 1971 SC 374 (vide para 3) and State of Punjab v. Amar Singh, AIR 1974 SC 994 (vide para 84),
18. The appeal is dismissed.