Indian Medical Association & Anr v. U.O.I & Ors

Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. r

¶26After the decision of the Supreme Court in T.ll~.A. Pal Foundation & Ors. v. State of Karnataka & Ors. (2002) 8 SCC

¶481the Supreme Court in Islamic Academy of Education & Anr. v. State of Karnataka & Ors. (2003) 6 SCC 697 clarified various aspects of T.M.A. Pai Foundation (supra). In para 6 of this deCISIon (at page 720) the Supreme Court formulated the questions which arose for consideration before it. Question 3 framed by the Supreme Court reads as follows: "3. Whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent;....... "

¶27While dealing with the aforesaid question, "the Supreme Court referred to para 68 of its decision in T.M.A. Pai (supra) 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 are entitled to autonomy in tl.Ieir 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. 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 filled 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 percentage 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." WP(C) No. 2763/2008 Page 22 0136

¶28In para 13 of Islamic Academy (supra) the Supreme Court observed: "However, a proper reading of paragraph 68, indicates that a further distinction has been made between minority and non minority professional colleges. It is provided that in cases of non minority professional colleges "a certain percentage of seats" can be rese.rved for admission by the management. The rest have to be filled up on basis of counseling by State agencies. The prescription of percentage has to be done by the Government according to local needs Keeping this in mind provisions have to be made for the poorer and backward sections of the society. It must be remembered that, so far as, medical colleges are concerned. an essentiality certificate has to be obtained before the college can be set up. It cannot be denied that whilst issuing the essentiality certificate the respective State Governments take into consideration the local needs. These aspects have been highlighted in a recent decision of this Court in State of Maharashtra v. Indian Medical Assn. Whilst granting the essentiality certificate the State Government undertakes to take over the obligations of the private educational institution in the event of that institution becomlng incapable of setting of the institution or imparting education therein. A reading of paragraphs 59 and 68 shows that in non minority professional colleges admission of students, other than the percentage given to the management, can only be on the basis of merit as per the common entrance tests conducted by government agencies. The manner in which the percentage given to the management can be filled in is set out hereinafter." (emphasis supplied)

¶29In paragraph 175 of the judgment rendered by S .B, Sinha, J. in Islamic Academy(supra) the Supreme court observed as under: "175. If it is to be held that in a case of minority institution all the seats could be filled in by members of their community/language, if available, the same would run counter to para 68 of the Judgment which says about certain percentage which can never be 100%. The expression "different percentages" occurring In para 68 would clearly mean there cannot be any fixed percentage. In a given case it may be more than 90% but in another it may be less than 50%, Different percentages must be worked out in terms of the Page Z3 of36 WP(C) No. 2763/ZOO8 need of the institution. It has nothing to do with minority or non-minority; aided or unaided." (emphasis supplied)

¶30If, in the case of even minority institutions, 100% of the seats could not be filled by the management of the minority institutions, certainly ACMS, which is not even a minority institution (who enjoy special protection under Article 30 of the Constitution), cannot seek to fill 100% of its seats from only a single source i e. from amongst the wards of the army/ex-army personnel and war Widows.

¶31The Supreme Court has held in AIIMS Students Union v. AIIMS & Drs. AIR 2001 SC 3262 that a mechanism evolved. which (. ensures admission in the post graduate courses in AIIMS to all students graduating from AIIMS, amounts to super reservation. The Supreme Court rejected the argument that reservation of 33% of post­ graduate seats in favour of AlIMS students is not a reservation as it provides two sources of entry to PG courses of study in AIIMS. namely. in-house candidates of AIIMS and open category of candidates i.e. students other than from AIIMS. The Supreme Court rejected the argument advanced by the appellants that the use of the expression "reservation" in the context is misplaced. The Supreme Court observed: "We are dealing with a case where the diVision of seats between two classes coupled with two level reservation and unique percentile method has been so carved out, ,. as if tailor-made. as is resulting into a reservation which ensures allotment to the extent of 100% of PG seats followed by guaranteed placement in the choicest of creamy disciplines to the candidates belonging to one category (i.e. Institute's in-house candidates) without regard to their competitive merit. This is not a reservation but a super-reservation and certainly not a source of entry." WP(C) No. 2763/2008 Page 24 of36 r In para 53, the conclusion recorded by the Supreme Court is in the following words:­ "53. The upshot of the above discussion is that institutional reservation is not supported by the Constitution or constitutional principles. A certain degree of preference for students of the same institution intending to prosecute further studies therein is permissible on grounds of convenience, suitability and familiarity with an educational environment. Such preference has to be reasonable and not excessive. The preference has to be prescribed without making an excessive or substantial departure from the rule of merit and equality. It has to be kept within limits."

¶32In Pal Foundation (supra) as well as in P.A. Inamdar & Ors. v. State of Maharashtra & Ors. (2005) 6 SCC 537, the Supreme Court has held that "education up to undergraduate level on one hand and education at graduate and post-graduate levels and in professional and technical institutions on the other are to be treated on different levels inviting not identical consideratJons". At the graduation level professional courses such as the one in question, there cannot be 100% reservation, Or the limiting the sources of selection to only one source/class by giving a go by to merit. The respondent ACMS is bound to comply with the terms of affiliation on which affiliation can be granted and, in fact, has been granted to ACMS by the respondent University. In Paval Ammal Vijayapuri Education Trust v. Government of Tamllnadu & Ors. AIR 1995 SC 63 the aforesaid position is clearly stated. From para 107 at page 593 (as reported in SCC) of P.A. Inamdar (supra), it appears that once. an educational institution is granted aid or aspires for recognition, the state may grant aid or recognition accompanied by WP(C) No. 2763/2008 certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition.

¶33Reliance placed by the learned ASG on Sameer Anand v. Amity Institute of Law decided by the High Court of Punjab & Haryana in Civil Writ Petition NO.109B/2000, on 30.01.2001, does not appear to be of much help to determine the controversy raised in these petitions. That was a case where BO% of the seats in the Army Institute of Law, also set up by AWES, were reserved for wards of army personnel. The remaining 20% seats were meant for either Punjab residents or fell in the All India category. The petition was dismissed, inter alia, by holding that it was not a case of reservation in favour of the wards of army personnel, but a case of flxing the source from which the candidates were being drawn. This decision is not of much assistance, since it is rendered before the decisions of the Supreme Court in T.M.A. Pai Foundation (supra), Islamic Academy of Education (supra) and P.A. Inamdar (supra). Moreover, unlike in the said decision, the present case is governed by the Delhi Act No.BO of 2007, which speciflcally deals with the aspect of allocation and reservation, as discussed hereinabove. It appears the learned Judge was not appraised with the judgment of the Supreme Court in AIIMS Students Union (supra).

¶34Learned ASG also submits that a DiVision Bench of the Punjab & Haryana High Court in Anny Institute of Higher Education v. State of Punjab & Ors. Civil Writ No.B96112007, decided on 04.10.2007, while dealing with a case pertaming to an institution running the B.Ed. Course took a contrary view by holding WP(C) No. 2763/2008 r that the Army Institute of Higher Education could not be allowed to fill up all the seats exclusively from the wards/dependants of army personnel ignoring other meritorious eligible candidates This decision was appealed against before the Supreme Court. He submits that the Supreme Court has granted leave and virtually stayed the operation of the said judgment in SLP (Civil) NO.887/2008

¶35In my view, the mere fact that the Supreme Court has granted a leave to appeal from the decision of the Division Bench in Army Institute of Higher Education (supra) cannot be taken to mean that the Supreme Court has set aside the deciSIOn of the Division Bench. In fact, a perusal of the order dated 25.01.2008 passed in the aforesaid Special Leave Petition shows that the Supreme Court did not in terms stay the operation of the Judgment of the Division Bench. However, it appears that the operation of various notifications by which the Army Institute of Higher Education was aggrieved was stayed. On 15.09.2008, when the Supreme Court granted leave the aforesaid interim order dated 25 01 2008 was continued. It cannot, therefore, be said that the decision of the Division Bench of the Punjab and Haryana High Court, In the aforesaid matter, has either been disapproved or even stayed by Supreme Court. The Supreme Court in P.A. Inamdar(supra) in para 134 observed that different considerations would apply for graduate and post graduate level of education as also for techmcal and professional educational institutions. Such education cannot be imparted by any institution unless recognized by or affiliated with any competent authority created by law, such as the University, Board, Central or State Government or the like. Excellence in education and WP(C) No. 2763/2008 Page 27 0136