# I • P.A. !NAMDAR AND ORS v. STATE OF MAHARASHTRA AND ORS

- **Citation:** [2005] Supp. 2 S.C.R. 603
- **Court:** Supreme Court of India
- **Decided:** 2005-08-12
- **Bench:** R.C. Lahoti, Y.K. Sabharwal, D.M. Dharmadhikari, Arun Kumar, G.P. Mathur, Tarun Chatterjee, P.K. Balasubramanyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-p-a-namdar-and-ors-v-state-of-maharashtra-and-ors-20951
- **Pages:** 83

## Headnote

Constitution of India, 1950 :
A
B
c
Articles 19(/)(g), 29 and 30{1), 41and51-A, Seventh Schedule, List III,
Entry 25-Unaided non-minority and minority (religious and linguistic}
inslilutions-Jmparting professional education-Extent of the power a/State
to regulate adnzissions and fee structure, seat sharing/quota and to implement
reservation policy-Held, 'Minority' status is determinable with reference to
a State and not by taking into consideration population of the country as a
D
whole-Articles 29 and 30 are intended to confer protection on minorities
rather than an abstract right.
Right to establish and administer educational institutions
Minority educational institutions not taking any aid from the State and
also not seeking any recognition would exercise their right unhampered by
any "restrictions excepting those which are in national interest.
Minority unaided educational institutions seeking affiliation or
recognition-Existence of infrastructure sufficient for its growth can be
stipulated as a pre-requisite lo grant of recognition or affiliatior>-There
cannot be interference in day-to-day administration-Non-minority unaided
institutions can also be subjected to sbnilar restrictions which are found
reasonable and in the interest of student community-Minorities or non~
minorities, in exercise of their educational rights in the field of professional
education, have an obligation and a duty to maintain requisite standards of
professional education by giving admissions based on merit and making
education equally accessible to eligible students through a/air and transparent
admission procedure and based on a reasonable fee-structure.
E
F
G
Admissions in minority institutions, aided or unaided, shall be at the
H
603
604
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
State level-Transparency and merit shall have to be assured-Having
regard to larger interest and welfare of student community to promote merit,
achieve excellence and curb mal-practices, it would be permissible to
regulate admissions by providing a centralized and single window procedureTill regulations are framed, admission committees constituted pursuant to
B
decision in Islamic Academy can oversee admissions to ensure merit.
Fee-Capitation fee and profiteering cannot be permitted-It is permissible to regulate admissions and fee structure in order to ensure merit and
transparency.
C
Monitoring Committees-Scheme evolved in Islamic Academy for
setting up Committees for monitoring admission procedure and determining
fee structure cannot be faulted either on ground of alleged infringement of
Article 19(l)(g) as regards unaided non-minority institutions or Article
19(J)(g) read with Article 30 with respect to unaided minority institutionsD
The Union/States are expected to bring legislation on the subject-Till then
the Committees would continue to exist.
Reservation-State cannot insist on unaided private educational
institutions to implement state's policy on reservation in admission.
E
Quota-Scheme evolved in Islamic Academy allowing States to fix
quota for seat sharing between Management and the State in unaided private
educational institutions both minority and non-minority disapproved and to
that extent Islamic Academy overruled.
f
Articles 41 and 51-A :
Education is national wealth essential for nation's progress and
prosperity-Imparting education even though on occupation, it cannot be
equated to a trade or business.
G
Prospective operation of judgment-Admission process having already
commenced-The judgment shall be given effect to from next academic year.
Unaided non-minority and minority (both religious and linguistic)
institutions, imparting professional education, felt that in, spite of the
H
eleven Judge Bench decision in T.MA. Pai Foundation v. State of Karnataka,
P.A. JNAMDAR v. STA TE
605
(2001] Suppl. 3 SCR 587 and as explained in Islamic Academy of Education
A
& Anr. v. State of Karnataka & Ors., [2003] 6 SCC 697, some of the main
questions remained unse

## Text

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I •
P.A. !NAMDAR AND ORS.
v.
STATE OF MAHARASHTRA AND ORS.
AUGUST 12, 2005
[R.C. LAHOTI, CJ., Y.K. SABHARWAL, D.M. DHARMADHIKARI,
ARUN KUMAR, G.P. MATHUR, TARUN CHATTERJEE AND
P.K. BALASUBRAMANYAN, JJ.)
Constitution of India, 1950 :
A
B
c
Articles 19(/)(g), 29 and 30{1), 41and51-A, Seventh Schedule, List III,
Entry 25-Unaided non-minority and minority (religious and linguistic}
inslilutions-Jmparting professional education-Extent of the power a/State
to regulate adnzissions and fee structure, seat sharing/quota and to implement
reservation policy-Held, 'Minority' status is determinable with reference to
a State and not by taking into consideration population of the country as a
D
whole-Articles 29 and 30 are intended to confer protection on minorities
rather than an abstract right.
Right to establish and administer educational institutions
Minority educational institutions not taking any aid from the State and
also not seeking any recognition would exercise their right unhampered by
any "restrictions excepting those which are in national interest.
Minority unaided educational institutions seeking affiliation or
recognition-Existence of infrastructure sufficient for its growth can be
stipulated as a pre-requisite lo grant of recognition or affiliatior>-There
cannot be interference in day-to-day administration-Non-minority unaided
institutions can also be subjected to sbnilar restrictions which are found
reasonable and in the interest of student community-Minorities or non~
minorities, in exercise of their educational rights in the field of professional
education, have an obligation and a duty to maintain requisite standards of
professional education by giving admissions based on merit and making
education equally accessible to eligible students through a/air and transparent
admission procedure and based on a reasonable fee-structure.
E
F
G
Admissions in minority institutions, aided or unaided, shall be at the
H
603
604
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
State level-Transparency and merit shall have to be assured-Having
regard to larger interest and welfare of student community to promote merit,
achieve excellence and curb mal-practices, it would be permissible to
regulate admissions by providing a centralized and single window procedureTill regulations are framed, admission committees constituted pursuant to
B
decision in Islamic Academy can oversee admissions to ensure merit.
Fee-Capitation fee and profiteering cannot be permitted-It is permissible to regulate admissions and fee structure in order to ensure merit and
transparency.
C
Monitoring Committees-Scheme evolved in Islamic Academy for
setting up Committees for monitoring admission procedure and determining
fee structure cannot be faulted either on ground of alleged infringement of
Article 19(l)(g) as regards unaided non-minority institutions or Article
19(J)(g) read with Article 30 with respect to unaided minority institutionsD
The Union/States are expected to bring legislation on the subject-Till then
the Committees would continue to exist.
Reservation-State cannot insist on unaided private educational
institutions to implement state's policy on reservation in admission.
E
Quota-Scheme evolved in Islamic Academy allowing States to fix
quota for seat sharing between Management and the State in unaided private
educational institutions both minority and non-minority disapproved and to
that extent Islamic Academy overruled.
f
Articles 41 and 51-A :
Education is national wealth essential for nation's progress and
prosperity-Imparting education even though on occupation, it cannot be
equated to a trade or business.
G
Prospective operation of judgment-Admission process having already
commenced-The judgment shall be given effect to from next academic year.
Unaided non-minority and minority (both religious and linguistic)
institutions, imparting professional education, felt that in, spite of the
H
eleven Judge Bench decision in T.MA. Pai Foundation v. State of Karnataka,
P.A. JNAMDAR v. STA TE
605
(2001] Suppl. 3 SCR 587 and as explained in Islamic Academy of Education
A
& Anr. v. State of Karnataka & Ors., [2003] 6 SCC 697, some of the main
questions remained unsettled. Their quest to minimize State's regulatory
role as regards admissions and fee structure, particularly in view of the
situations that emerged after the decision in Islamic Academy, culminated
in the matter being referred to the 7-Judge Bench of the Supreme Court.
B
In view of the two orders of reference made in Pushpagiri Medical
Society v. State of Kera/a and Ors., [2004] 8 SCC 135 and in P.A. Inamdar
and Ors. v. State of Maharashtra and Ors., [2004[ 8 SCC 139, the Court
framed the following four questions for its decision :
(I) To what extent the State can regulate the admissions made by
unaided (minority or non-minority) educational institutions?
Can the State enforce its policy of reservation and/or
appropriate to itself any quota in admissions to such institutions?
(2)
Whether unaided (minority and non-minority) educational
institutions are free to devise their own admission procedure
or whether direction made in lslamic Academy for compulsorily
holding entrance test by the State or association of institutions
and to choose therefrom the students entitled to admission in
such institutions, can be sustained in light of the law laid down
in Pai Foundation?
•
(3)
Whether Islamic Academy could have issued guidelines in the
matter of regulating the fee payable by the students to the
educational institutions?
(4)
Can the admission procedure and fee structure be regulated
or taken over by the Committtes ordered to be constituted by
Islamic Academy?
Answering the reference : the Court
HELD : (i) Education.
1. Education, accepted as a useful activity, whether for charity or
c
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E
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for profit, is an occupation. Nevertheless, it does not cease to be a service
H
606
SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.
A
to the society. And even though an occupation, it cannot be equated to
a trade or a business. In short, education is national wealth essential for
the nation's progress and prosperity. [660-C-D)
The Sole Trustee, Lok Shikshana Trust v. C./. T, (1976] 1 SCC 254 and
B
TMA. Pai Foundation v. State of Karnataka, (2002) Suppl 3 SCR 587 :
(2002) 8 sec 481, referred to.
c
D
E
Chambers Dictionary; Advanced Law Lexicon, P. Ramanatha Aiyar,
3rd Edition, 2005, Vol. 2; 'India-Vision 2020' p.250; Eternal Values for
A Changing Society, Vol. Ill; Education for Human Excellence, pp 14 and
20, published by Bharatiya Vidya Bhavan, Bombay, referred to.
(ii) Difference between professional and non-professional Educational
Institutions :
2.1. Education institutions imparting higher education, i.e. graduate
level and above and in particular specialized education such as technical
or professional, constitute a separate class. Education aimed at imparting
professional or technical qualifications stands on a different footing from
other educational instruction. Apart from other provisions, Article 19(6)
is a clear indicator and so are clauses (h) and (j) of Article 51A. Education
up to undergraduate level on the 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
considerations. [668-D-E, G-H)
p
2.2. While recognition or affiliation may not be a must for education
G
up to undergraduate level or, even if required, may be granted as a
matter of routine, recognition or affiliation is a must and subject to
rigorous scrutiny when it comes to educational institutions awarding
degrees, graduate or post-graduate. post-graduate diplomas, and deg·rees
in technical or professional disciplines. [668-H; 669-A-B]
(iii) Article 19(1)(g), 29 and 30(1) : Inter-relation-ship
between :
3.1. As an occupation, right to impart education is a fundamental
H
right under Article 19(1)(g) and, therefore, subject to control l:>y clause
..
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P.A. INAMDAR v. STATE
607
(6) of Article 19. This right is available to all citizens without drawing a
A
distinction between minority and non-minority. Such a right is, generally
speaking, subject to laws imposing reasonable restrictions in the interest
to the general public. In particular, laws may be enacted on the following
subjects : (i) the professional or technical qualifications necessary for
practicing any profession or carrying on any occupation, trade or business;
B
(ii) the carrying on by the State, or by a corporation owned or controlled
by the State of any trade, business, industry or service whether to the
exclusion, complete or partial of citizens or otherwise. Care is taken of
minorities, religious or linguistic, by protecting their right to establish
and administer educational institutions of their choice under Article 30.
To some extent, what· may be permissible by way of restriction under
C
Article 19(6) may fall foul of Article 30. This is the additional protection,
which Article 30(1) grants to the minorities. 1661-C-EJ
3.2. Pai Foundation is unanimous on the view that the 'right to
establish and administer an institution', the phrase as employed in Article
30(1) of the Constitution, comprises of the following rights: (a) to admit
students; (b) to set up a reasonable fee structure; (c) to constitute a
governing body; (d) to appoint staff (teaching and non-teaching); and (e)
to take action if there is dereliction of duty on the part of any of the
employees. (673-C-D]
3.3. Aid and affiliation or recognition, both by State, bring in some
amount of regulation as a condition of receiving grant or recognition. The
scope of such regulations, must satisfythe following tests: (a) the regulation
is reasonable and rational; (b) it is regulative of the essential character of
D
E
the institution and is conducive to making the institution an effective vehicle
F
of education for the minority community or other persons who resort to it;
(c) it is directed towards maintaining excellence of education and efficiency
of administration so as to prevent it from falling in standards. No right can
be absolute. Whether a minority or a non-minority, no community can
claim its interest to be above the national interest. (661-H; 662-A-B, D-EI
T.MA. Pai Foundation v. State of Karnataka, (2002) Suppl. 3 SCR
587: (2002] 8 sec 481, explained and followed.
Rev. Sidhrajbhai, AIR (1963) SC 540 and Ahmedabad St. Xavier's
G
College Society v. State of Gujarat, (1974) I SCC 717, referred to.
H
A
B
608
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
(iv) 'Minority' and Minority Educational Institutions :
4.1. With the dictum of Pai Foundation, it cannot be doubted that
minority, whether linguistic or religious, is determinable only by reference to the demography of a State and not by taking into consideration
the population of the country as a whole. The principle would remain the
same whether it is a Central legislation or a State legislation dealing with
linguistic or religious minority. [663-C-D; 662-G-H)
4.2. It necessarily follows from the law laid down in Pai Foundation
that a minority institution must primarily cater to the requirements of the
C
minority of that State else its character of minority institution is lost.
However, a 'sprinkling' of that minority from other State on the same
footing as a sprinkling of non-minority students, would be permissible and
would not deprive the institution ofits essential characterofbeing a minority
institution determined by reference to that State as a unit. [665-G-H)
D
In Re : Kera/a Education Bill, 1957 (1958) SCR 998 and State of
E
Kera/a Etc. v. Very Rev. Mother Provincial, Etc., [1970) 2 SCC 417, relied
·on.
4.3. The twin objects sought to be achieveri by Article 30(1) in the
interest of minorities are: (i) to enable such minority to conserve its religion
and language, and (ii) to give a thorough, good general education to the
children belonging to such minority. So long as the institution retains its
minority character by achieving and continuing to achieve these objectives,
the institution would remain a minority institution. [663-G-H]
F
4.4. Articles 29 and 30 are intended to confer protection on minorities rather than a right as such. These Articles can be better understood
and utilized if read as a protection and/or a privilege of minority rather
than an abstract right. [664-F-G]
St. Stephen's College v. University of Delhi, [1992) 1 SCC 558, reG
ferred to.
(v) Right to establish and administer an educational institution:
(i) Minority educational institution, unaided and unrecognized
H
5. Minority educational institutions not taking any aid from the
P.A. !NAMDAR v. STATE
609
State and also not seeking any recognition or affiliation would exercise
A
its right under the protection and privilege conferred by Article 30(1) "to
their hearts contents''unhampered by any restrictions excepting those
which are in national interest based on considerations such as public
sa.(ety, national security and. national ih.tegrity, or are aimed at preventing exploitation of stud.ents to teaching community. Such institutions
cannot indulge in any activity which is violative of any law of the land.
They are free to admit .all students of their own minority community if
they so choose to do. [673-E-G)
(i) Minority educational institutions receiving State aid
6. Conditions which can normally be permitted to be imposed on the
educational institutions receiving the grant must be related to the proper
utilization of the grant and fulfillment of the objectives of the grant
without diluting the minority status of the educational institution, as held
in Pai Foundation. As aided institutions are not before this Court nor is
the Court Called upon to deal with their cases, the discussion is left at
that only. \674-G-Hl
(i) Minority unaided educationG! institutions asking for affiliation or
recognition
7.1. Affiliation or recognition by the State or the Board or the University
competent to do so, cannot bedenied solely on the ground thatthe institution
is a minority educational institution. However, the urge or need for affiliation
or recognition brings in the concept of regulation by way of laying down
conditions consistent with the requirement of ensuring merit, excellence of
education and preventing mal-administration. The existence of
infrastructure sufficient for its growth can be stipulated as a pre-requisite
to the grant of recognition or affiliation. However, there cannot be
interference in the day-to-day administration. The essential ingredients of
the management, including admission of students recruiting of staff and
the quantum of fee to be charged, cannot be regulated. [674-A-C)
7.2. Apart from the generalized position of law that right to administer
does not include right to ma I-administer, an additional source of power
to regulate by enacting condition accompanying affiliation or recognition
exists. Balance has to be struck between the two objectives : (i) that '!f
B
c
D
E
F
G
H
610
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
A
ensuring the standard of excellence of the institution, and (ii) !'hat of
preserving the right of the minority to establish and administer its
educational institution. Subject to reconciliation of the two objectives,
any regulation accompanying affiliation or recognition must satisfy the
triple tests: (i) the test of reasonableness and rationality, (ii) the test that
B
c
D
E
F
the regulation would be conducive to making the institution an effective
vehicle of education for the minority community or other persons who
resort to it, and (iii) that there is no in-road on tht protection conferred
by Article 30(1) of the Constitution, that is, by framing the regulation the
essential character of the institution being a minority educational
institution, is not taken away. [674-D-F)
Q.t. Unaided educational institutions (both minority and non-minority) - Enforcement of reservation policy and appropriation of quota
by State : [673-A-B]
Reservation :
8.1. The State cannot insist on private educational institutions which
receive no aid from the State to implement State's policy on reservation
for granting admission on lesser percentage of marks, i.e. on any criterion
excef>t merit. [675-B-C]
Quota:
8.2. Neither the policy of reservation can be enforced by the State
nor any quota or percentage of admissions can be carved out to be
appropriate by the State in a minority or non-minority unaided educational
institution. Minority institutions are free to admit students of their own
choice including students of non-minority community as also members of
their own community from other States, both to a limited extent only and
not in a manner and to such an extent that their minority educational
institution status is lost. If they do so, they lose the protection of Article
G
30(1). [677-G-H; 678-A-B)
Ahmedabad St. Xavier's College Society v. State of Gujarat, [1974) 1
SCC 717 and Unni Krishnan v. State of Andhra Pradesh, [19~3] 1SCC645,
stood overruled.
H
8.3. Neither in Pai Foundation nor in Kera/a Education Bill, which
P.A. !NAMDAR v. STATE
611
was approved by Pai Foundation, is there anything which would allow the
A
State to regulate or control admissions in the unaided professional
educational institutions so as to compel them to give up a share of the
available seats to the candidates chosen by the State, as if it was filling
the seats available to be filled up at its discretion in such private institutions.
This would amount to nationalization of seats which has been specifically
B
disapproved in Pai Foundation. Such imposition of quota of State seats
or enforcing reservation policy of the State on available seats in unaided
professional institutions are acts constituting serious encroachment on
the right and autonomy of private professional educational institutions.
Such appropriation of seats can also not be held to be a regulatory
measure in the interest of minority within the meaning of Article 30(1)
or a reasonable restriction within the meaning of Article 19(6) of the
Constitution. [675-C-E]
T.MA. Pai Foundation v. State of Karnataka, [2002] Suppl. 3 SCR
587: [2002] 8 SCC 491 and In Re: Kera/a Education Bil/, 1957 [1958] SCR
995, relied on.
Ahmedabad St. Xavier's College Society v. State a/Gujarat, (19741 I
SCC 717 and Unni Krishnan v. State of Andhra Pradesh, [1993( 1SCC645,
referred to.
8.4. Unaided institutions, as they are not deriving any aid from State
funds, can have their O\\'D admissions if fair, transparent, non-exploitative
and based on merit. The observations in paragraph 68 of the majority
opinion in Pai Foundation, are not to be read disjointly from other parts
of the main judgment. A few observations contained in certain paragraphs
c
D
E
of the judgment, if read in isolation, appear conflicting or inconsistent
F
with each other. But if the observations made and the conclusions derived
are read as a whole, the judgment nowhere lays down that unaided
private educational institutions of minorities and non-minorities can be
forced to submit to seat sharing and reservation policy of the State.
(675-F-H; 676-A-B]
8.5. Observations on paragraph 68 merely permit unaided private
institutions to maintain merit as the criterion of admission by voluntarily
agreeing for seat sharing with the State or adopting selection based on
common entrance test of the State. There are also observations saying
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that they may frame their own policy to give free-ships and scholarships
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612
SUPREME COURT REPORTS [2005) SUPP. 2 S.C.R.
A
to the needy and poor students or adopt a Policy in line with the reservation
policy of the State to cater to the educational needs of weaker and poorer
sections of the society. [676-B-C]
8.6. The observations in Pai Foundation in paragraph 68 and other
B
paragraphs mentioning fixation of percentage of quota are to be read and
understood as possible consensual arrangements which can be reached
between unaided private professional institutions and the State. [676-E-Fl
8. 7. In Pai Foundation, it has been very clearly held at
several places that unaided professional institutions should be
C
given greater autonomy in determination of admission procedure and fee
structure. State regulation should be minimal and only with a view to
maintain fairness and transparency in admissi~n procedure and to check
exploitation of the students by charging exorbitant money or capitation
fees. (676-F-G)
D
8.8. The scheme evolved in Islamic Academy to the extent it allows
States to fix quota for seat sharing between management and the States
on the basis oflocal needs of each State, in the unaided private educatinnal
institutions of both minority and non-minority categories cannot be
approved. That part of the judgment in Islamic Academy does not lay
E
down the correct law and runs counter to Pai Foundation. (676-G-Hl
F
Islamic Academy of Education & Anr. v. State of Karnataka & Ors.,
(20031 6 sec 697, partly overruled.
NRJ seats
8.9. A limited reservation of seats, not exceeding 15%, may be made
available to NRis depending on the discretion of the management subject
to two conditions. First, such seats should be utilized bona fide by the
NRis on!y and for their children or wards. Secondly, within this quota,
G
merit should not be given a complete go-by. The amount of money, in
whatever form collected from such NRis, should be utilized for benefiting
students such as from economically weaker sections of the society, whom,
on well defined criteria, the educational institutional may admi.: on
subsidized payment of their fee. To prevent misutilisation of such quota
H
or any malapractice referable to NRI qota seats, suitable legislation or
P.A. !NAMDAR v. STATE
613
regulation needs to be framed. So long as the State does not do it, it will
A
be for the Committees constituted pursuant to the directions in Islamic
Academy to regulate. [677-D-F[
Q.2. Admission procedure of unaided educational institutions.
9.1. So far as the minority unaided institutions are concerned, to
admit students being one of the components of "right to establish and
_administer an institutiontt, the State cannot interfere therewith. Upto the
B
level of undergraduate education, the minority unaided educational
institutions enjoy total freedom. However, different considerations \vould
apply for graduate and post-graduate level of education, as also for
C
technical and professional educational institution. Such education cannot
be imparted by any institution unless recognized by or affiliated with any
competent authority created by law. Excellence in education and
maintenance of high standards at this level are a must. To fulfil these
objectives, the State can and rather must, in national interest, step in. The
education, knowledge and learning at this level possessed by individuals
collectively constitutes national wealth. [678-F-G)
9.2. In minority educational institutions, aided or unaided, admissions
shall be at the State level. Transparency and merit shall have to be
assured. [678-F-G]
9.3. There is nothing wrong in an entrance test being held for one
group of institutions imparting same or similar education. Such institutions
situated in one State or in more than one State may join together and hold
D
E
a common entrance test or the State may itself or through an agency arrange
F
for holding of such test. Out of such common merit list the successful
candidates can be identified and chosen for being allotted to different
institutions depending on the courses of study offered, the number of seats,
the kind of minority to which the institution belongs and other relevant
factors. Such an agei.cy conducting Common Entrance Test (CET, for
short) must be one enjoying utmost credibility and expertise in the matter.
This would better ensure the fulfillment of twin objects of transparency
and merit. CET is necessary in the interest of achieving the said objective
and also saving the student community from harassment and exploitation.
Holding to such common entrance test followed by centralized counseling
G
or, in other words, single window system regulating admissions does not
H
614
SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.
A
causes any dent in the right of minority unaided educational institutions to
admit students of their choice. Such choice can be exercised from out oflist
of successful candidates prepared at the CET without altering the order of
merit inter se of the student so chosen. [679-A-D)
B
c
D
E
F
9.4. Pai Foundation has held that minority unaided institutions can
legitimately claim unfettered fundamental right to choose the students to
be allowed admissions and the procedure therefor subject to its being fair,
transparent and non-exploitative. The same principle applies to nonminority unaided institutions. There may be a single institution imparting
a particular type of education which is not being imparted by any other
institution and having its own admission procedure fulfilling the test of
being fair, transparent and non-exploitative. All institutions imparting
same or similar professional education can join together for holding a
common entrance test satisfying the abovesaid triple tests. The State can
also provide a procedure of holding a common entrance test in the
interest of securing fair and merit-based admissions and preventing maladministration. The admission procedure so adopted by private institution
or group of institutions, if it fails to satisfy all or any of the triple tests,
can be taken over by the State substituting its own procedure. The second
question is answered accordingly. (679-E-G)
9.5. It needs to be specifically stated that having regard to the larger
interest and welfare of the student community to promote merit, achieve
excellence and curb mal-practices, it would be permissible to regulate
admissions by providing a centralized and single window procedure.
Such a procedure, to a large extent, can secure grant of merit based
admission·on a transparent basis. Till regulations are framed, the admission
committees can oversee admission so as to ensure that merit is not the
casualty. [679-H; 680-A-B)
Q. 3 Fee-Regulation of:
G
10.1. To set up a reasonable fee structure is also a component of"the
right to establish and administer an institution" within the meaning of
Article 30(1) of the Constitution, as per the law declared in Pai Foundation.
Every institution is free to devise its own fee structure subject to the
limitation that there can be no profiteering and no capitation fee can be
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charged directly or indirectly, or in any form. (680-B-C]
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P.A. INAMDAR v. STATE
615
Capitation Fee :
10.2. Capitation fee cannot be permitted to be charged and no seat
can be permitted to be appropriated by payment of capitation fee. rr
capitation fee and profiteering is to be checked, the method of admission
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has to be regulated so that the admissions are bas•d on merit and transB
parency and the students are not exploited. It is permissible to regulate
admission and fee structure for achieving the said purpose. (680-D; F-Gj
TMA. Pai Foundation v. State of Karnataka, [20021 Suppl. 3 SCR
587; [2002) 8 SCC 481 and Unni Krishnan v. State of Andhra Pradesh,
[1993) I SCC 645, referred to.
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Q. 4. Committees formed pursuant to Islamic Academy
I I.I. Pai Foundation upheld Unni Krishnan to the extent to which
it holds the right to primary education as a fundamental right, but D
overruled the scheme relating to grant of admission and fixing of fee.
However, the principle that there should not be capitation fee or
profiteering was upheld. Leverage was allowed to educational institutions
to generate reasonable surplus to meet cost of expansion and augmentation of facilities which would not amount to profiteering. (681-C-D(
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Unni Krishnan v. State of Andhra Pradesh, (1993) l SCC 645, referred
to.
11.2. The two committees for monitoring admission procedure and
determiningfee structure in the judgment of Islamic Academy are permisF
sible as regulatory measures aimed at protecting the interest of the
student community as a whole as also the minorities themselves, in
maintaining required standards of professional education on non-exploitative terms in their institutions. Legal provisions made by the State
Legislatures or the Scheme evolved by the Court for monitoring admisG
sion procedure and fee fixation do not violate the right of minorities
under Article 30(1) or the right of minorities and non-minorities under
Article 19(1 )(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of
general public under Article 19(6) of the Constitution. Unless the admission procedure and fixation of fees is regulated and controlled at the H
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SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
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initial stage, the evil of unfair practice of granting admission on available
seats guided by the paying capacity of the candidates would be impossible
to curb. (681-H; 682-A-E]
11.3. N~n-minority unaided institutions can also be subjected to
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similar restrictions which are found reasonable and in the interest of
student community - Minorities or non-minorities, in exercise of their
educational rights in the field of professional education, have lln obligation and a duty to maintain requisite standards of professional education
by giving admission based on merit and making education equally accesc
sible to eligible students through a fair and transparent admission procedure and based on a reasonable fee-structure. (682-E-F]
11.4. The judgment in Islamic Academy, in so far as it evolves the
.
scheme of two Committees one each for admission and fee structure, does
not go beyond the law laid down in Pai Foundation and earlier decisions
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of this Court, which have been approved in that case. The scheme cannot
be faulted either on the ground of alleged infringement of Article 19(1)(g)
in case of unaided professional educational institutions of both c~tegories
and Article 19(1 )(g) red with Article 30 in case of unaided professional
institutions of minorities. However, the observation by way clarification,
E
contained in the latter part of para 19 of Islamic Academy which speaks
of quota and fixation of percentage by State Government is rendered
redundant and must go. (683-H; 682-G-H; 683-A-B; 684-A-B)
'
Islamic Academy of Education & Anr. v. State of Karnataka & Ors.,
-.,
'
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(2003) 6 sec 697, partly overruled.
11.5. A fortiori, there does not seem to be any impediment to the
constitution of the Committees as a stopgap or adhoc arrangement made
in exercise of the power conferred on this Court by Article 142 of the
Constitution until a suitable legislation or regulation framed by the State
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steps in. Such Committees cannot be equated with Unni Krishnan Committees which were supposed to be permanent in nature. (683-A-B)
11.6. The Committees are expected, so long as they remain functional, to be more sensitive and to act rationally and reasonably with due
H
regard for realities The should refrain from generalizing fee structures
~
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P.A. !NAMDAR v. STATE
617
and, where needed, should go into accounts, schemes, plans and budgets
A
of an individual for the purpose of finding out what would be an ideal
and reasonable fee structure for that institution. [683-E-F)
I 1.7. It is made clear that in case of any individual institution, if any
1ftheCommittees is found to have exceeded its powers by unduly interfering B
in the administrative and financial matters of the unaided private
professional institutions, the decision oft he Committee being quasi-judicial
in nature, would always be subject to judicial review. [683-G-H)
I 1.8. It is for the Central Government or for the State Governments,
in the absence of a Central legislation, to come out with a detailed well
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thought out legislation on the subject. Such a legislation is long awaited.
States must act towards this direction. Till then, the Committees regulating admission procedure and fee structure shall continue to exist, but
only as a temporary measure. [685-A-C)
12. In view of the fact that admission process in several professional
educaticmal institutions has already commenced, the Jaw, as Jaid down in
this judgment, shall be given effect to from the academic year commencing
next after the pronouncement of this judgment. [684-G-H)
D
CIVIL APPELLATE JURJSDICTION : Civil Appeal No. 5041 of2005.
E
From the Judgment and Order dated 7.5.2004 of the Bombay High
Court in W.P.LD. No. 1425 of 2004.
WITH
C.A. Nos. 5042, 5043/2005, W.P. (C) Nos. 276, 330, 357/2004 I.A.
Nos. 26, 27, 30, 31 and 33 in W.P. (C) No. 350/93, C.A. No. 5035/2005,
W.P.(C) Nos. 302, 347, 349, 350, 387, 423, 480/2004, 19/2005, 261, 265,
380, 358, 359, 360, 361, 362, 363/2004, C.A. Nos. 5257-58, 5259,52605261, 5262-5263, 5996, 5992 5997-5998, 7969-7971, 7972,7973, 7974,
7975/2004, W.P.(C) Nos. 371, 368/2004, C.A. Nos. 7117-7119, 7124-7126/
2004, C.P.(C) Nos. 561-563/2004 in C.A.No.71I7-19/2004, C.P. (C) No.564566/2004 in C.A. Nos. 7124-26/2004, W.P.(C) No. 251/2004, C.P. Nos.
5036, 5037/2005, W.P. (C} No. 318/2004, C.A. Nos. 5038, 5039, 5040/2005,
W.P.(C) Nos. 386, 397 of 2004.
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SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
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G.E. Vahanvati, Solicitor General, K.P. Pathak, Additional Solicitor
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General, Harish N. Salve, Ashok H.Desai, M. Rama Jois, K. Parasaran,
Mukul Rohtagi, Dr. Rajeev Dhavan, K. Radhakrishnan, Soli J. Sorabjee, F.S.
Nariman, Altaf Ahmad, K.K. Venugogal, Vivek K. Tankha, S.K. Gambhir,
S.K. Dholakia, Dr. N.M. Ghatate, Jaideep Gupta, R.F. Nariman, P.P. Rao,
K. Ramanoorthy, Uday U. Lalit, T.R. Andhyarujina, T.L.V. Iyer, R.N.
Trivedi, Arun Jaitely, Dr. Abhishek Manu Singhvi, Sunil Kumar, Satyajit
Shaha, Vijay Kumar, Ms. Meenakshi Grover, Yatindra Sharma, Ms. Niranjana
Singh, Ms. V.D. Khanna, Ms. Roxna Swamy, Naveen R. Nath, Ms. Anitha
Shenoy, Ms. Lalit Mohini Bhat, Ms. Hetu Arora, Sharan Dev Singh Thakur,
S. Uday K. Sagar, Ms. Beena Madhavan, Ms. Susan Zachariah, Ms. Pooja
Nanekar, Vinayagam, Ms. Kiran Shetty Naik, S.E. Auhad, B.E. Auhad, Akhil
Sibal, G. Uma Pathy, S. Jayakumar, Rakesh K. Sharma, Senthil Velan, Bharat
Sangal, Subhash Sharma, Ashim Sood, M. Qamaruddin, Ms. M. Qamaruddin,
Ambar Qamaruddin, Wahid Hussain, C.M. Zafarullah, Ms. Ritu Bhardhwaz,
B.P. Sarangi, Romi Chacko, Tufail Ahamed Khan, Girijash Pandey, Sushi!
Kumar Jain, M.M. Asudhani, Ms. Prathiba Jain, A.P. Dhamija, Ramniwas,
H.D. Thanvi, Sarad Singhania, Ms. Hari Priya Padmanabhan, Krishnan,
Venugopal, K.R. Sasiprabhu, John Mathew, Ms. Indira, G. Prakash, Gaurav
Agarwal, Arvind Choudhry, Kuldip Singh, B.K. Sharma, H.K. Puri, Ujjwal
Banerjee, S.K. Puri, Shiv Gupta, Ms. Priya Puri, V.M. Chauhan, U.A. Rana,
Arvind Kumar, Viju Mattam, Rohit Singh, Sakesh Kumar, Satish K. Agnihotri,
Dayan Krishnan, Niki! Nayyar, Gautam Narain, Tharachandra Sharma, Ms.
Neelam Sharma, Rajiv Sharma Ajay Sharma, Rupesh Kumar, Tharun
Sharma, Rana Mukherjee, Siddharth Gautam, Goodwill Indeevar, Suchit
Mohanthy, Sanjeev Sen, Partha Sil, Ghanshyam Joshi, P.H. Parekh, E.R.
Kuamar, Rohit Alex, Sumit Goyal, Rajeev Mishra, Ms. Ameet Hariyani, Ms.
Jaymala Godwale, Ashiesh Kumar, Hare Krishna Upadhyya, Siddarth S.
Chauhan, Satyanarayan Prajapathi, Harsh Pathak, S. Wasim, A. Quadri, Ms.
Rameeza Hakeem, Deva Datt Kamat, Ms. Sushma Suri, Chava Badri Nath
Babu, C.M. Aangadi, Ms. Ranjana, Vimal Rai Jat, R. Ayyam Perumal, S.
Vallinayagam, Ms. Mahalakshmi Bavani, G. Balaji Iyer, Sewa Ram, Ashu
Tosh Kumbhakuni, Ravindra, Keshawrao, Adsure, Gautam Godra, Mukesh
K. Giri, Sanjay R. Hegde, Anil K Mishra, A. Rohan Singh, Ashish Chugh,
S.M. Bhat, Arun K. Sinha, Rakesh Singh, Sandeep Bhargava, Ms. B. Bharathi
Reddy, B. Vikash, Ms. Sneha Bhaskaran, Satish K. Agnihotri, W.A. Nomani,
Rohit K. Singh, Ms. Shweta Garg, M. Shoeb Alam, Neeraj Jain, Nikil Goyar,
Kavita Wadia, Maninder Singh, Ms. Partibha M. Singh, Angad Mirdha,
Saurabh Mishra, Ejaz Maqbool, D. Mahesh Babu, Anil Kumar, Tandale, G.
..
P.A. !NAMDAR v. STATE ILAHOTI, CJ.]
619
Ramakrishna Prasad, Mohd. Wasay Khan, T.V. Ratnam, Naresh Kumar,
Rajjash Aggrawal, Ashok Mathur, Ms. V. Mohana, P.P. Singh, G.
Sivabalamurugan, Y. Aruna Giri, L.K. Pandey, P.V. Yogeswaran, Bhawani
Shanker, V. Gadnis, Shiv Kumar Suri, Ms. A. Subhashini, A. Mariarputham,
Ms. Aruna Mathur, K.N. Madhusoodhanan, R. Sathish, Ms. H. Wahi, Ms.
Sadhana Sandhu, Guntur Prabhakar, Ashok K. Mahajan, B.S. Banthia,
Sanjeev Saxana, Amit Bhandari, Yash Anand, Ms. Pramila, A.P. Sahaya,
Hemansh Shekhar, Gopal Singh, Anurag Sharma, Amitash Kumar, A.V.
Rangam, A. Ranganadhan, Buddy Ranganadhan, Dr. Sushi! Balwada,
Devendra Singh, U. Hazarika, Satya, Mittra, Sumita Hazarika, Aruneshwar
Gupta, Naveen Kumar Singh, Ms. Shivangi, Ms. Sheela Goyal, Krishna
Srinivasan, M.P. Vinod, Ajay K. Jain, Arvind Kumar, Chandraveer Singhin-person, Hemanshu Munshi, Ms. Anuradha Rustagi, Nitin S. Tambweker,
Sunil Badeker, B.S. Sai, C. Ravi Chandran Iyer, R. Jaganath Goulay, Baldev
Atreya and R.C. Iyer for the appearing parties.
The Judgment of the Court was delivered by
R.C. LAHOTI, CJ. :
Preliminary
Leave granted in all SLPs.
A Coram of I I Judges, not a common feature in the Supreme Court of
India, sat to hear and decide T.MA.Pai Foundation v. State of Karnataka,
[2002] 8 SCC 481 (hereinafter 'Pai Foundation', for short). It was expected
that the authoritative pronouncement by a Bench of such strength on the
issues arising before it would draw a final curtain on those controversies. The
subsequent events tell a different story. A learned academician observes that
the I I -Judge Bench decision in Pai Foundation is a partial response to some
of the challenges posed by the impact of Liberalisation, Privatisation and
Globalisation (LPG); but the question whether that is a satisfactory response,
is indeed debatable. It was further pointed out that 'the decision raises more
questions than it has answered' (see : Annual Survey of Indian Law, 2002
at p.251, 254). The Survey goes on to observe "the principles laid down by
the majority in Pai Foundation are so broadly formulated that they provide
sufficient leeway to subsequent courts in applying those principles whife the
lack of clarity in the judgment allows judicial creativity " (ibid at p.256).
The prophecy has come true and while the ink on the opinions in Pai
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Foundation was yet to dry, the High Courts were flooded with writ petitions,
calling for settlements of several issues which were not yet resolved or which
cropped on floor, post Pai Foundation. A number of Special Leave Petitions
against interim orders passed by High Courts and a few writ petitions came
to be filed directly in this Court. A Constitution Bench sat to interpret the
11-Judge Bench decision in Pai Foundation which it did vide its judgment
dated 14.8.2003 (repo1ted as - Islamic Academy of Education & Anr. v. State
of Karnataka & Ors., (2003) 6 SCC 697; "Islamic Academy" for short). The
11 learned Judges constituting the Bench in Pai Foundation delivered five
opinions. The majority opinion on behalf of 6 Judges was delivered by B.N.
Kirpal,; CJ. Khare, J (as His Lordship then was) delivered a separate but
concurring opinion, supporting the majority. Quadri, J, Ruma Pal, J and
Variava, J (for himself and Bhan, J) delivered three separate opinions partly
dissenting from the majority. Islamic Academy too handed over two opinions.
The majority opinion for 4 learned Judges has been delivered by V.N. Khare,
CJ. S.B. Sinha, -J, has delivered a separate opinion. The events following
Islamic Academy judgment show that some of the main questions have
remained unsettled even after the exercise undertaken by the Constitution
Bench in Islamic Academy in clarification of the I I-Judge Bench decision
in Pai Foundation.