JUDGMENT Arun Tandon, J.
1. Heard Sri V. B. Upadhyay Senior Advocate, assisted by Sri A. K. Goyal Advocate on behalf of the petitioners, Additional Advocate General Sri Sudhir Agrawal and Chief Standing Counsel Sri S. M. A. Kazmi on behalf of Respondent Nos. 1, 2 and 3 and Sri Neeraj Tiwari on behalf of Respondent No. 4.
2. With the consent of the parties, since counter affidavit and rejoinder affidavits have already been exchanged, the present writ petition is being disposed of at the admission stage itself.
3. The Petitioner No. 1, which is an Association of self financed institutions, is a society duly registered under the Societies Registration Act. The aim and object of the society is to develop higher education and to look after the welfare of the members of the society. The members of the society are managements of institutions of higher education in professional courses without aid of the Government. The petitioner No. 2 is a society with similar aim and object. The members of the said society are technical institutions. Petitioner Nos. 3 and 4 are institutions, which are unaided and are members of the petitioners' society No. 1 and 2. They have joined as co-petitioners in the present writ petition.
4. Respondent Nos. 1 to 4 are the Stage Authorities, who monitor and control higher education including admission in various professional and technical courses. Respondent No. 4 is the U. P. Technical University, Lucknow to which Technical and Professional Institutions (hereinafter referred to as Unaided Professional Institutions) are affiliated.
5. By means of the present writ petition the petitioners have prayed for a writ of certiorari for quashing the Government Order dated 26th July, 2004 and 29th July, 2004 (Annexures 10 and 11 to the writ petition respectively) and further for a direction upon the respondents not to interfere in the right of the petitioners to fill up the management quota seats as well as the lapsed seats of the Government quota in various programmes on merit to be judged on the basis of the marks obtained in the qualifying examination i.e. Class-XII and other equivalent
6. By means of the Government Order dated 26th July, 2004 (Annexure 10 to the writ petition) it has been provided that seats reserved for Scheduled Caste/ Other Backward Classes category candidate shall not be filled in any circumstance from the members belonging to general category.
7. The Government Order dated 29th July, 2004 (Annexure 11 to the writ petition) under challenge, provides that in view of the judgment of the Hon'ble Supreme Court in case of Islamic Academy dated 14th August, 2003, Management quota seats shall be filled from the candidates in accordance with the merit secured in the Combined Entrance Examination conducted by the State of Uttar Pradesh in respect of the Government quota seats or else on the basis of a Combined Entrance Examination held jointly by all the Management of Unaided Institutions. It has further been clarified that in no case the Management quota seats shall be filled on the basis of the marks obtained by the candidates in the qualifying examination (i.e. Class-XII or equivalent).
8. It is contended on behalf of the petitioners that the Government Order dated 26th July, .2004 is patently arbitrary and unjustified. It is submitted that in case Scheduled Caste category candidates are not available for admission, no purpose would be served by keeping the scats vacant and depriving the other meritorious candidates, belonging to general category, from admission against the said seats. It is further contended that unlike service jurisprudence there cannot be a carry forward of the seats of reserved category for admission in the following year. With the closure of the admission of a particular year, the said seats if unfilled would go waste, if the Government Order dated 26th July, 2004 is permitted to stand.
9. So far as the Government Order dated 29th July, 2004 is concerned, it is submitted that 11 Judges of the Hon'ble Supreme Court of India in their judgment in the case of T.M.A. Pai Foundation v. State of Karnataka, reported in AIR 2003 SC 235 : (2002) 3 UPLBEC 2817 (SC) (hereinafter referred to as T.M.A. Pails case), in Paragraphs 58 and 59, had recognized three modes for judging the merit of a candidate for admission to Professional and Higher Educational Colleges and in Paragraph 68 of the said judgment it has been repeated that the admission in Private Unaided Institution must be merit-based selection. It is further submitted that the respondents have misinterpreted the judgment of 5 Judges of the Hon'ble Supreme Court, in the case of Islamic Academy of Education v. State of Karnataka (hereinafter referred to as Islamic Academy Case), reported in JT 2003 (7) SC 1 while issuing the impugned Government Order dated 29th July, 2004, as the Islamic Academy Case has only explained the manner for holding common entrance test to be conducted by the Private Management jointly for filling up their Management quota seats (as mentioned in Paragraph 68 of T.M.A. Pai's case) and does not laid down as proposition of law that merit secured in the qualifying examination (which have been approved by the 11 Judges of the Hon'ble Supreme Court in the case of T.M.A. Pai's case as one of the mode for determination of merit for admission, Paragraph 59), cannot be resorted to for filling up the Management quota seats. In support there of reference has also been made to the Government Order issued by the respondents themselves dated 9th July, 2004 (Annexure 12 to the writ petition) wherein they have provided that in respect of Self Financed Medical Colleges, admission in certain contingencies can be granted on the basis of the merit-based selection to be determined on marks obtained in the qualifying examination, as also to an other Government Order dated 26th July, 2004 (Annexure 9 to the writ petition), whereby it is provided that in respect of the seats within Government quota (85%) which are unfilled due to the selected candidate, as per the Combined Entrance Examination held by the State, having not joined the same, may be filled on the basis of marks obtained in qualifying examination i.e. Class-XII/Equivalent Examination provided the candidate has achieved at least 55% marks in the said qualifying examination.
10. It is contended that the Government. cannot be permitted to adopt two different standard for admission. One in respect of seats belonging to the State quota, which remain, unfilled as the selected candidates refuse to take admission and the other in respect of seats which are required to be filled by the Management on its own, termed as Management quota.
11. Lastly it is contended on behalf of the petitioner that the Hon'ble Supreme Court realizing the difficulty because of the interpretation of the judgments of the Hon'ble Supreme Court in the T.M.A. Pai's case and Islamic Academy case, referred to above, vide judgment and order dated 10th August, 2004, passed in Civil Appeal No. 261 of 2004; Modern Dental College & Res. Inst. and Ors. v. State of M. P. and another, (2005) 1 UPLBEC 251 (SC), has again referred the matter to the Larger Bench and in the meantime has made an interim arrangement, whereby the Managements of Unaided Colleges have been permitted to fill up their quota of seats on the basis of merit secured in the qualifying examination. In such circumstances, the petitioners have prayed that similar arrangement should also be made in their favour till the matter is finally decided on reference by the Larger Bench of the Hon'ble Supreme Court.
12. On behalf of the respondent State it is contended by Sri Sudhir Agrawal, Additional Advocate General, that the Government Order dated 26th July, 2004 is only interim in nature, taking into consideration the position as is prevailing today. In that regard reference has been made to the Chart enclosed as Annexure 'SCA-1' along with the supplementary counter affidavit filed on behalf of Respondent No. 4 (U, P. Technical University, Lucknow), whereby it is demonstrated that there are large number of seats still vacant in all categories against the State quota, even after the councilling has practically been completed subsequent to the State Entrance Examination, conducted in the year 2004. It is submitted on behalf of the State that the Government Order dated 26th July, 2004 does not impose a ban for all times to come as suggested by the petitioners. The State Government is alive to the situation and shall, if necessary, issue fresh Government Orders as and when situation demands. The State Government shall make all endeavours to ensure that the seats available in Professional Courses do not go unfilled/waste. It is submitted that as of date no cause of action has arisen for the petitioners to challenge the said Government Order inasmuch as sufficient number of seats within the general category as well as under the reserved category are still vacant.
13. In respect to Government Order dated 29th July, 2004, it is submitted that the said Government Order, in so far as it restrict the Management from granting admission to the students against the Management quota seats on the basis of marks obtained in qualifying examination (Class-XII or equivalent), has been issued strictly in accordance with the judgment of the Hon'ble Supreme Court in the case of Islamic Academy, referred to above. The Hon'ble Supreme Court in the case of Islamic Academy has explained the manner in which the Management quota seats can be filled. Reliance in that regard has been placed on Paragraph 15 of the judgment of Islamic Academy and on the basis thereof it is contended that the Hon'ble Supreme Court has confined the right of the Unaided Professional Institutions to grant admission to the students on the seats within its quota (15%) (a) Only on the basis of merit secured in Combined All India Entrance Examination (b) On the basis of the State Entrance Examination conducted by the State of U. P. (c) Combined Entrance Examination to be conducted by Association of all the colleges of same nature. The Hon'ble Supreme Court, in Islamic Academy case, has ruled out the fourth method of admission as was noticed in the case of T.M. A. Pai case; namely admission on the basis of merit in the qualifying examination (Class-XII or Equivalent). The order in the case of Modern Dental College has been passed by the Hon'ble Supreme Court taking into account the facts of that case, the same is only an interim arrangement and the said judgment cannot be read so as to dilute the final judgment of the Hon'ble Supreme Court in the case of Islamic Academy. No interference under Article 226 of the Constitution of India is called for at the behest of the petitioners in the facts of the case. If the petitioners feel aggrieved in any manner from the Government Orders, which have been issued strictly in accordance with the judgment of Hon'ble Supreme Court in the case of Islamic Academy, they may seek appropriate modification from the Hon'ble Supreme Court itself as has been done in the case of Modern Dental College. It is, therefore, suggested that the writ petition is devoid of merit and be dismissed.
14. Challenge to the Government Order dated 26th July, 2004 has been made only on the ground that the State Government, under the aforesaid Government Order, has created a situation whereby the seats, as available in various professional colleges, may go waste as sufficient number of Scheduled Caste candidates may not come forward to seek admission in professional courses against the seats reserved in their favour.
15. It is not necessary for this Court to enter into the controversy raised by the petitioners at this stage inasmuch as, according to Additional Advocate General, the Government Order dated 26th July, 2004 only take care of situation as is available on date. According to Additional Advocate General, there are still existing sufficient number of vacancies, both in the general category as well as in the reserved category, which are still lying. vacant, consequently no cause has arisen to the petitioners to challenge the said Government Order. It is clearly stated by Additional Advocate General that as and when situation arises with regards to scats remaining unfilled due to non-availability of sufficient number of students belonging to Scheduled Castes, the Government shall take necessary decision and if necessary issue appropriate order.
16. The Additional Advocate General is justified in stating that as of date no cause of action has arisen for the petitioner to challenge the Government Order dated 26.7.2004. In view of the aforesaid, this Court is not called upon to adjudicate upon the legality or otherwise of the same at this stage. As and when cause for challenging the Government Order arises, petitioner may seek appropriate remedy.
17. The relevant facts for deciding validity of Government Order dated 29.7.2004 arc:
The petitioners and its member institutions are unaided Self Financing Private Institutions, they are affiliated to U. P. Technical University, Lucknow. The extent of Government interference with regards to admission in Unaided Professional Institutions, both minority and majority has been considered by 11 Judges Bench of the Hon'ble Supreme Court in the matter of T.M.A. Pai, referred to above. In Paragraph 58 and 59 of the said judgment it has been held as follows :-
"58. For admission into any professional institutional, merit must play an important role. While it may not be normally possible to Judge the merit of the applicant who seeks admission into a School, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preference shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission, Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions."
"59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by Government agencies."
18. For our purposes Paragraph 68 of the said judgment is also relevant, which reads as follows.
"68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions arc entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, the permissible for the university or the Government at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/ University and have applied to the college concerned for admission, while the rest of the seats may be filed up on the basis of counselling by the State agency, This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non- minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and post graduation non-professional colleges or institutes."
19. In accordance with the judgment of the Hon'ble Supreme Court, referred to above, the State Government issued a Government Order dated 20th June, 2003, copy whereof has been enclosed as Annexure 8 to the writ petition. In Paragraph 6 of the said Government Order it has been provided that out of the total sanctioned seats for a professional college, 85% seats, termed as State seats, shall be filled by common State Entrance Examination to be conducted by the U. P. Technical University, Lucknow formally known as U. P, Scat. 15% of the total seats, termed as Management quota seats were permitted to be filled on the basis of merit to be determined in any of the following manner :
(a) common entrance examination conducted by the U. P. Technical University;
(b) combined entrance examination conducted by the Central Government, known as All India Engineering Entrance Examination (AIEE);
(c) merit determined on the basis of marks obtained in the qualifying examination (Class XII or equivalent).
20. It is, further provided that the management may opt for any of the three modes and in case the seats still remains vacant after exhausting the opted mode, it will be open to Management to fill up the vacant seats by the remaining mode. For ready reference, Clause 6 of the Government Order reads as follows ;-
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21. In accordance with the aforesaid decision of the State Government dated 20th June, 2003, the U. P. Technical University, Lucknow published an information brochure in respect of the Entrance Examination of 2004. Clause 1.3 and 2.14, which are relevant for this case, are being quoted herein below :
"1.3. Seats in private Institutions in Management Quota.- Number of admission in all Private Engineering College affiliated to U. P. Technical University, Lucknow through by SEE-UPTU-2004 will be upto 85% of total intake and remaining 15% seats will be filled by colleges as Management quota through other examination(s) specified in G. O. No. 2073/2003-16-1-78/91 T.C.-l, Lucknow dated 20th June, 2003. The Management quota is subjected to change by U. P. Govt.
"In respect to any particular matter related to admission, the latest AICTE instructions and the order issued by Govt. of U. P. and communicated to U. P. Technical University, Lucknow upto the date of counselling shall be applicable,"
22. Reference may also be had to the public notice issued by the All India Council for Technical Education dated 15th November, 2003, whereunder it has been specified that the State Level Common entrance Test for admission to Degree Level Engincering and Technical Courses for the academic year 2004-2005 shall be restricted to the students of their own State. Another public notice published by the All India Council for Technical Education, being Advertisement No. AICTE/ UG/AIE/11/2003, is enclosed as Annexure 4'A' to the writ petition, wherein it has been provided that the Management quota seats in private unaided institutions shall be-filled through either of the common entrance tests conducted by Union or by the State, as above, or through a common entrance test conducted by an approved agency including Association of all colleges of a particular type and the option for adopting any examination for filing up of management quota seats shall be exercised by he institutions before issuance of prospectus and intimated to the concerned authority. To similar effect is the letter of the All India Council for Technical Education dated 14th November, 2003 and the public notice issued in pursuance thereof for the year 2004-2005.
23. In Paragraph 15 of the writ petition it has been stated that all the petitioners' member institutions have given their preference to opt for All India Entrance Examination for the purposes of filing up 15% management quota seats. The statement made in that regard in Paragraph 15 reads as follows:
"It is not out of place to mention here that the Council sent the aforesaid guidelines to all the Institutes imparting the professional courses including the petitioners and the Institutes also gave their preference to opt for such All India Entrance Examination. For brevity, a true copy of the option dated 20.12.2003 exercised by one of the member Institutes is being filed herewith and marked as Annexure No. 5 to this writ petition."
24. From Paragraphs 58 and 59 of T.M.A. Pai's case, quoted herein above, it is apparently clear that the Hon'ble Supreme Court has specifically held that admission to professional courses should be strictly merit-based. Merit is usually determined, for admission to professional and higher education college, by (a) marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview (b) by a common entrance test conducted by the institution and (c) in the case of professional colleges entrance examination conducted by Government agencies.
25. In Paragraph 68 of the said judgment the Hon'ble Supreme Court further held that it must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, be permissible for the University or the Government at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students and thereafter the Hon'ble Supreme Court proceeded to suggest that one of the mode, for judging the merit- based selection, would be the common entrance test held by institutions.
26. The said judgment of the Hon'ble Supreme Court came up for interpretation before 5 Judges Bench of Hon'ble Supreme Court in the case of Islamic Academy (supra) and in Paragraph 14 of the said judgment the Hon'ble Supreme Court, while interpreting the manner in which a combined common entrance test can be held by the private unaided institutions, has held that such entrance test cannot be permitted to be held by every institution on its own and therefore, held that the common entrance test, referred to by the Hon'ble Supreme Court in Paragraph 68 of the judgment of T.M.A. Pai 's case, necessarily means the common entrance examination to be held by the Association of all the colleges of a particular type in that State; for example Medical, Engineering and Technical. The Hon'ble Supreme Court has further held that the option of choosing the common entrance test conducted by the State and the other common entrance test conducted by the Association of the institutions should be exercised before issuance of the prospectus and after intimation to the concerned authority. The Hon'ble Supreme Court has further held that if any professional college chooses not to admit students from the common entrance test conducted by the Association then the college must necessarily admit students from the common entrance test conducted by the State. In view of the aforesaid judgment of the Hon'ble Supreme Court, the State Government issued Government Order dated 29th July, 2004 and tried to justify the same on the aforesaid reasons.
27. The Government Order dated 29th July, 2004 was issued in view of the legal position, Which has developed according to Additional Advocate General because of the judgment of the Hon'ble Supreme Court in the case of Islamic Academy (supra). The contention of the Additional Advocate General that the judgment in the case of Islamic Academy has completely ruled out admission in professional courses on the basis of merit having regard to marks obtained in the qualifying examination (Class XII or equivalent examination), in the opinion of the Court is strictly not correct for the following reasons :-
(a) The Hon'ble Supreme Court, in Paragraph 14 of the Islamic Academy case, was considering the scope of the common test to be held by the institutions as was referred to by the 11 Judges judgment in T.M.A. Pai's case in Paragraph 68 only. While interpreting the common entrance test to be held by the institutions for admission against the seats, termed as Management quota scats, it has been held that such a common entrance test cannot be held individually by every institution and, therefore, proceeded to hold that the Association of the institutions of the same category should hold one common test for the various reason, noticed in the Paragraph 14 of the said judgment itself.
(b) The observations made by Hon'ble Supreme Court in the Paragraph 14 do not in any way suggest that the merit-based selection adopted on the basis of the marks obtained in qualifying examination (Class XII/equivalent examination) as has been approved by the 11 Judges of the Hon'ble Supreme Court in the case of T.M.A. Pai. Paragraph 59 has been discarded.
The Hon'ble Supreme Court in the T.M.A. Pai's case has emphasized that the admission in professional courses should be a merit based selection, which has also been reiterated - by the Hon'ble Supreme Court in the case of Islamic Academy. Thus, the basic principle underlined the method of admission to professional courses is that the admission must he on the basis of merit. The marks obtained by a candidate in the qualifying examination (Class-XII/equivalent examination), is also one of the recognized and established mode for judging the merit of student for the purposes of admission to higher classes.
(c) The said mode of admission (on the basis of marks obtained in the qualifying examination) has been adopted by the State of U. P. to be one of the valid modes for granting admission to the students in Private Unaided Professional Colleges. Reference-(i) Government Order dated 26th July, 2004 (Annexure 9 to the writ petition), whereby the seats within the State quota (85%), which remains vacant even after councilling, have been permitted to be filled by Private Unaided Professional Institutions on the basis of the marks obtained in the qualifying examination (Class-XII/equivalent examination), (ii) Government Order dated 9th July, 2004 (Annexure 12 to the writ petition), whereby unaided Medical Colleges have permitted to admit students on the basis of merit in qualifying examination against management quota scats.
(d) The Hon'ble Supreme Court itself, in its order dated 10th August, 2004 passed in Modern Dental College and Ors. v. State of M.P. and others, has observed that there is a serious issue involving interpretation of the judgment of Hon'ble Supreme Court in the cases of T.M.A. Pai and Islamic Academy, which required to be resolved by a Larger Bench and thereafter the Hon'ble Supreme Court has proceeded to grant an interim order providing for admission in unaided professional institutions on the basis of merit in qualifying examination. For ready reference the order passed by the Hon'ble Supreme Court is being reproduced herein below :
Writ Petition (Civil) No. 261 of 2004 Modern Dental Colleges & Res. Inst. & Others Petitioners Vs.
State of M. P. and another Respondent "The petitioners involve important issues including the question of interpretation of judgments of this Court in the case of T.M.A. Pai Foundation and Islamic Academy of Education. We issue Rule. Some earlier matters involving somewhat similar questions have been referred to Larger Bench. These petitions also, in terms of order already passed, are referred to a Larger Bench and be tagged with the earlier petitions.
Presently, the question is of interim arrangement that may be made for the academic year 2004-2005 in Medical Colleges, Dental and Nursing Colleges, Ayurvedic and Homeopathic Courses, Unani Medical Colleges and Engineering Colleges.
In colleges other than Engineering, Government of Madhya Pradesh, accepting the recommendations of the Committee that had been constituted by Government and headed by a retired Judge of the High Court as its Chairman, has decided that State and Management quota would be 50 per cent each. In this view, no further interim arrangement is required to be made.
In Engineering Colleges it appears that last year the Management quota was only 5 per cent. In terms of "the meeting held on 12th November, 2003 between the representatives of the Management and the officers of the Education Department, it was agreed that for the year 2004-2005 the Management quota would be 15 per cent of the total intake considering the prevailing practice in the institutions of the adjoining States. This is again reiterated in the minutes of the meeting held on 19th November, 2003. At this stage we are not entering into the disputes sought to be raised either about the correctness of the minutes or the authorities of those who attended the meeting on behalf of the Management. Having regard to the decision taken in November, 2003 for this academic year in Engineering colleges, the Management quota would be restricted to 15 per cent.
The next aspect is about reservations in Management quota. In terms of Government decision, contained in letter dated 2nd July, 2004 addressed to the Colleges and others they were intimated that the reservations prescribed by the State shall continue for State and Management quota. The petitioners, of course, object to the reservation provided for management quota. Our attention has also been drawn to the Notification dated 8th April, 2004 issued by the Government of Madhya Pradesh whereby the reservation policy of the Government of Madhya Pradesh was restricted to the State quota seats. We accordingly stay the operation of the letter dated 2nd July, 2002 to the extent it prescribes reservation for Management quota.
Yet another question is about the admission to be granted on the basis of PMT/PET conducted by the Professional Examination Board. There is no difficulty, insofar as, the grant of admission to the State quota seats on the basis of merits derived by taking into consideration the marks obtained in the said test. The difficulty is in regard to admission in Management quota scats. In terms of the decision of this Court in Islamic Academy Education Association of the college could hold an entrance examination. At this stage, it is not necessary to Government Order into the reason of non-holding of such examination. It is also not in serious dispute that at this distant point of time when the courses have already commenced, it would not be in the interest of students community if fresh entrance tests are permitted to be held by the Management. On behalf of the State, it is contended that the Management quota seats shall also be filled on the basis of merit in the PMT/PET was confined to domicile of Madhya Pradesh. In this view, it has been strenuously contended for the petitioners that if the admission in Management quota is granted on the basis of the PMT/PET, those who could not participate in PMT/PET, on account to domicile condition, would not be eligible to be considered for admission in colleges in Management quota. Having regard to the totality of the circumstances and the law laid down by this Court in T.M.A. Pai Foundation case, we are of the view that the suggestion on behalf of the colleges that the Management quota seats shall be allowed to be filled on the basis of marks obtained in CBSE/Equivalent Board Exams deserves to be accepted. It will give a wider choice to the Management of the Colleges. We, however, make it clear that those who may have taken PMT/PET but are otherwise eligible to be admitted in Management quota on the basis of the marks obtained by them in CBSE/equivalent Board Exams would be granted admission in Management quota if otherwise they are so eligible. The respondents if so advised, may send the list of such candidates to the respective colleges.
In respect of the fee structure, we are of the view that the fees as prescribed by the Committee shall prevail for the time being though provisional. It would, however, be open to the colleges to take an undertaking from students that in case a higher fee is payable, they will pay the same. For the present only the fee fixed by the Committee would be charges from the students.
The Committee in its report has directed that the Management should deposit an amount or give a bank guarantee in the sum of Rs. 15 lac, insofar as Medical and Dental Colleges arc concerned, and Rs. 10 lac, insofar as other institutions are concerned, to recover the fine that may be imposed on the Institutions due to breach of the directions given in the order of the committee. We are of the view that the said condition deserves to be stayed pending decision of these letters. We order accordingly.
The aforesaid interim directions, as already indicated, would be applicable for the present academic year 2004-2005 and to all the institutions, which arc before us in these petitions. The views expressed by under Section are prima facie for making the three interim arrangements."
28. It is to be noted that the issue which has been raised in the present writ petition is more or less identical to the controversy, which was up before the Hon'ble Supreme Court in the case of Modern Dental College. Since the Hon'ble Supreme Court vide order dated 10th August, 2004 has already referred the controversy to be resolved by a Larger Bench, this Court may not express any final opinion in that respect of said issue. However, having regard to the order passed in Modern Dental College, the Court is of the opinion that some arrangement is also required to be made in the facts of the present case so long as the Larger Bench of the Hon'ble Supreme Court does not resolve the issue as has been referred in Modern Dental College's case.
29. The letter issued by All India Council for Technical Education dated 14th/15th November, 2003 as well as public notice issued in respect thereto establish beyond doubt that the State Level Tests arc restricted to fill up the scats from the students of the State of Uttar Pradesh only. Further option is to be exercised by the management for filing up its quota of seats from the State Level Examination or on the basis of Central Government Examination before the issuance of the prospectus and it should be intimated to the authorities concerned.
30. From the brochure, which has been published in respect of State Entrance Examination, 2004 under Clause 1.3 it has specifically been provided that the 15% seats shall be filled by the management on the basis of other examinations, as referred to in the Government Order dated 20th June, 2003. As already noticed above, Government Order dated 20th June, 2003 provides for three modes for filling up the 15% Management quota seats with a rider that if any seat still remains vacant after exhaustion of the mode opted, it will be open to Management to adopt the other mode for filling up the said vacancies.
31. The petitioners, in Paragraph 15 of the writ petition, have stated that they had opted for filling up their Management quota seats on the basis of All India Entrance Test. Since the scats arc still vacant and necessary number of students have not been made available for filling up the Management quota seats on the basis of the said option, the management, under the Government Order dated 20th June, 2003, can now adopt other mode for admission; namely marks obtained in the qualifying examination (Class-12/equivalent examination).
32. The respondents have referred to the documents filed as Annexure CA-3 for the purposes of alleging that the certain members of the petitioners' Association have already opted for admitting students within the management quota seats (15%) on the basis of the Combined Entrance Examination conducted by the U. P. Technical University, Lucknow. Practically all said letters have been submitted in the month of August, 2004 (except the one issued by the International Institute of Special Education). The aforesaid letters cannot be said to be an option exercised by the institutions as contemplated in Clause 1.3 of the brochure issued by U. P. Technical University or in compliance of circulars issued by All India Council for Technical Education. Even otherwise the said letter are of no consequence inasmuch as under order of the Hon'ble Supreme Court and circulars of All India Council for Technical Education, referred to above, the option is required to be exercised before the brochure is published.
33. The notices issued by All India Council for Technical Education dated 14th/15th November, 2003 have been issued in exercise of powers conferred under Section 10(4) of All India Council for Technical Education Act, 1987. Section 10(4) confers a power upon the council to lay down guidelines for admission in various technical courses. Thus, the said notification has been issued in exercise of statutory powers conferred upon the All India Council for Technical Education. The statutory power so exercised cannot be tinkered with by. the State Government by issuing Government Orders. In the opinion of the Court, the public notice and the circular issued by All India Council for Technical Education, in exercise of powers under Section 10(4), shall prevail over the Government Order dated 29th July, 2004.
34. The petitioners are right in contending that once brochure has been published and option exercised, it is not now open to the State Government to issue a Government Order contrary to the provisions of the brochure and the options exercised to direct that the Management quota scats shall be filled by privately financed institution on the basis of the merit secured by the candidates in the State Level Entrance Examination, conducted by U. P. Technical University, Lucknow. The brochure published by U. P. Technical University as well as the circular issued by All India Council for Technical Education, referred to above, support the said contention of the petitioners.
35. All India Entrance Examination (AIEE) and the U. P. State Combined Engineering Entrance Examination, conducted by the U. P. Technical University, are already over. The option for filling up of the Management quota seats was exercised in accordance with the judgment of the Hon'ble Supreme Court and in accordance with the circular issued by All India Council for Technical Education, which are referable to Section 4(4) of the All India Council for Technical Education Act, are binding in nature.
36. In such circumstances, the State Government is under a legal obligation to ensure that the option exercised by the Management of private professional colleges in respect of the admission, on the basis whereof 15% Management quota scats were to be filled, is given effect to strictly in accordance with the Government Order dated 20th June, 2003 and the circular issued by All India Council for Technical Education dated 14th/15th November, 2003. The State Government cannot be permitted to over ride the said option exercised by the management by issuing a unilateral Government Order dated 29th July, 2004. Accordingly, the Government Order issued by the State Government dated 29th July, 2004, which runs contrary to the statutory directions issued by the All India Council for Technical Education and to the brochure published by the U. P. Technical University in respect of academic year 2004-05 is clearly not sustainable and is hereby quashed.
37. However, it is further provided that the State Government shall permit the management of private unaided professional colleges to grant admission to students against the Management quota seats strictly in accordance with the option exercised by them in accordance with the notification of the All India Council for Technical Education and the brochure published by the U. P. Technical University, which in turn refers to Government Order dated 20th June, 2003. If, after exhausting the mode so opted by the private management, there still remain certain vacancies within the Management quota seats, the State shall permit the institutions to fill up the same from the other modes of admission, as noticed in the Government Order dated 20th June, 2003. The benefit of this Court is available to only those institutions which have exercised their option in accordance with the brochure published by U. P. Technical University and the notification issued by All India Council for Technical Education, referred to in the body of the judgment.
38. In view of the aforesaid present writ petition is partly allowed subject to the observations made herein above and the Government Order dated 29th July, 2004 is quashed. Petition partly allowed.