Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO.4399 OF 2005
WITH
WRIT PETITION NOS.4400 & 4413 OF 2005
Shri P. A. Inamdar & Ors. ...Petitioner.
Versus
State of Maharashtra & Ors. ...Respondents.
.......
Mr. Riyaz Chagla with Mr. Anilkumar Joshi for the Petitioners.
Mr. A. A. Kumbhakoni, Associate Advocate General with Mr. Y. D.
Mulani, AGP for the Respondent.
......
CORAM : A. P. SHAH AND
DR. D.Y. CHANDRACHUD, JJ.
July 13, 2005.
ORAL JUDGMENT (PER DR.D. Y. CHANDRACHUD, J.).:
Rule, by consent returnable forthwith. Counsel appearing
on behalf of the Respondents waives service. By consent of Counsel
and at their request taken up for hearing and final disposal.
2. In this batch of petitions, a decision arrived at by the
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Pravesh Niyantran Samiti on 10 June 2005 of declining to enhance
the management quota for admissions at professional institutions
established and administered by minorities, from 50% to 100% of the
total intake has been called into question. The Samiti was set up by
the Government of Maharashtra in pursuance of the decision of the
Supreme Court in Islamic Academy of Education vs. State of
Karnataka, (2003) 6 SCC 697. The three institutions in question in
the three petitions before the Court, provide instruction in
Architecture, Pharmacy and Management Sciences. None of the
institutions is in receipt of grant-in-aid from the State Government or
the Central Government. There is no dispute before the Court about
the position that these three institutions have been established and
are being administered by a religious minority consisting of persons
who practice and profess Islam.
T. M. A. Pai
3. The judgment of the Supreme Court in
Foundation vs. State of Karnataka, (2002) 8 SCC 481 was delivered
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on 31 October 2002. The Constitution Bench of the Supreme Court
delivered judgment in Islamic Academy of Education Vs. State of
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Karnataka,
(2003) 6 SCC 697 on 14 August 2003. On 16 February
2004, the Government of Maharashtra issued a resolution by which
the management quota for all minority run educational institutions in
the State was fixed at 50%.
4. Upon the constitution of the Samiti, the Petitioners filed
appeals in order to press their claim for the enhancement of the
management quota to cover all the admissions at these institutions.
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On 19 August 2004, the Samiti maintained the quota for the
Academic Year 2004-05 since the admissions process had reached
an advanced stage, reserving liberty to the institutions to apply for an
enhancement of the quota during the next Academic Year.
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Accordingly, appeals were filed on 30 November 2004 in order to
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challenge the Government Resolution of 16 February 2004. On 19
March 2005, the Samiti rejected appeals filed by the Institutions and
reiterated that the management quota for the Academic Year 2005-06
shall continue to remain at 50%. The Samiti was of the view that
since the issue was pending before a Bench of seven Learned
Judges of the Supreme Court, it should not intervene at that stage.
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Subsequently, on 25 April 2005, the Samiti decided to have a fresh
look at the management quota for minority institutions and allowed the
institutions to submit data regarding (i) the number of seats or the
strength of admissions during the previous two years; (ii) the number
of applications received; (iii) the number of admissions granted; (iv)
allotment of students received from the Government; and (v)
information in respect of local needs. The Petitioners thereupon
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submitted by a letter dated 27 April 2005, data reflecting the seats
which were filled up against the management quota during the
Academic Years 2003-04 and 2004-05, the names of candidates who
had applied for admissions and the candidates who could not be
eventually admitted. This data was submitted to the Samiti in support
of the contention of the Petitioners that the management quota was
inadequate to meet the needs and requirements of these minority
institutions and the religious minorities concerned. By a decision
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arrived at on 10 June 2005, the Samiti declined to revise the quota
and maintained the management quota at 50% for minority
institutions.
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5. The submission which has been urged in support of these
petitions is that the Samiti has furnished no reason whatsoever for
declining to accede to the request made by the managements for the
enhancement of the management quota. It has been submitted that
though data was produced by all the three institutions, demonstrating
that the quota which had been allowed was inadequate to meet the
needs of the institutions and of the Muslim minorities, leaving out in
the process a number of unaccepted applicants, the Committee has
not applied its mind to the data produced before it on the record.
Moreover, it was urged that the committee has not had regard to the
principles which were laid down by the Supreme Court in its
decisions in T. M. A. Pai Foundation (supra) and in Islamic Academy
of Education
(supra).
6. In T. M. A. Pai Foundation Vs. State of Karnataka , (supra)
the Supreme Court held that unaided professional institutions are
entitled to autonomy in their administration but, at the same time, they
must not forgo or discard the principle of merit. The Supreme Court
held that it was open to the University or Government while granting
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recognition to require a private unaided institution to provide for merit-
based selection while giving the management a sufficient discretion in
admitting students. 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 or University and have applied to the college
concerned for admission while the rest of the seats may be filled up
on the basis of counseling by the State agency. The Court held that
the prescription of percentage for this purpose has to be done by
Government according to local needs and different percentages can
be fixed for minority unaided and non-minority unaided and
professional colleges. In the concluding part of the judgment of the
majority delivered by the Hon'ble the Chief Justice, Mr.Justice B.N.
Kirpal, one of the questions that was framed for determination was
thus:
“Q.4. Whether the admission of students to minority
educational institution, whether aided or unaided can be
regulated by the State Government or by the university to
which the institution is affiliated?”
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While deciding upon this issue, the Supreme Court held that the right
to admit students being an essential facet of the right of religious and
linguistic minorities to administer educational institutions of their
choice under Article 30 of the Constitution, the State Government or
the University may not be entitled to interfere with that right so long as
admissions to unaided educational institutions are on a transparent
basis and merit is adequately taken care of. The Supreme Court
held that even an aided minority institution does not cease to be a
minority institution upon the receipt of aid and it would be entitled to
admit students belonging to its own minority while at the same time
being required to admit a reasonable extent of non-minority students.
What would constitute a reasonable extent would vary, having regard
to the type of the institution, the course of education for which
admission is sought and other factors like educational needs.
7. The judgment of the Supreme Court in T. M. A. Pai
Foundation was thereafter, considered in the subsequent decision of
Islamic Academy of Education Vs. State
the Constitution Bench in
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of Karnataka
, (2003) 6 SCC 697. The Supreme Court held that the
observation in para 68 of the majority judgment in T. M. A. Pai
Foundation made it clear that the same yardstick cannot be applied
to minority and non-minority professional colleges. The Court noted
that in the case of non-minority professional colleges, a “certain
percentage of seats” can be reserved for admission by the
management. However, in the case of minority run professional
institutions, the expression “different percentage” had been used. The
two expressions did not have the same connotation. The Supreme
Court held thus:
“The expression “different percentage for minority
professional institutions” carries a different meaning than
the expression “certain percentage for unaided professional
colleges”. In fixing the percentage for unaided minority
professional colleges the State must keep in mind, apart
from local needs, the interest/need of that community in the
State. The need of that community, in the State, would be
paramount vis-a-vis the local needs. (emphasis supplied).
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8. The attention of the Court has also been drawn to a
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subsequent order of the Supreme Court dated 15 July 2004 in P.A.
Inamdar and others vs. State of Maharashtra and others
(SLP
(Civil) No.9932 of 2004 and connected matters). A Bench of the
Supreme Court consisting of Mrs.Justice Ruma Paul and Mr.Justice
Arun Kumar has observed that prima facie, the phrase “their need” in
the decision in Islamic Academy referred to the need of the
institutions and not of the State.
9. We have adverted to these binding principles which have
been laid down by the Supreme Court since, it is on the basis of these
principles that the prescription of the management quota must be
arrived at by the Pravesh Niyantran Samiti. The Samiti has been set
up in pursuance of the directions issued by the Supreme Court in para
Islamic Academy of Education
19 of its decision in . Para 19 of the
judgment contains the following observations which must govern the
decision making process of the Samiti:
“It is clarified that different percentage of quota for students
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to be admitted by the management in each minority or non-
minority unaided professional college(s) shall be separately
fixed on the basis of their need by the respective State
Governments and in case of any dispute as regards fixation
of percentage of quota, it will be open o the management to
approach the Committee.”
10. There is merit in the submission which has been urged on
behalf of the Petitioners that the Samiti having not furnished any
indication of reasons in its decision should be requested to reconsider
its decision in the light of the principles of law which have been laid
down by the Supreme Court. Each of the institutions before the Court
has submitted data in support of its application for enhancement of
the percentage in the management quota. This data will have to be
considered by the Samiti in the light of the principles enunciated by
the Supreme Court. We, therefore, request the Samiti to reconsider
the matter and in order to facilitate a fresh determination, we set aside
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the impugned decision dated 10 June 2005. Having regard to the
urgency of the matter, we request the Samiti to expedite its decision.
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Since admissions have to be completed at an early date, the Samiti is
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requested to render its decision by 19 July 2005. In the meantime,
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having regard to the fact that the Supreme Court has on 15 July
2004 in its order passed in P.A. Inamdar and others vs. State of
Maharashtra and others (SLP (Civil) No.9932 of 2004 together with
connected matters), allowed a management quota of 75%, we direct
the State of Maharashtra at the present stage to fill up 25% of the
total seats in the three institutions before the Court. The final
distribution of the quota shall abide by the order that may be passed
by the Samiti on reconsideration in the light of this judgment.
11. The petitions are accordingly disposed of. In the
circumstances of the case, there shall be no order as to costs.
........
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