Right to Education: Fair Procedure of Admission in Educational Institutions

Authors Introduction

Name - Avneesh Kumar, 3rd year student of B.A.LL.B. (Hons), Dr. Ram Manohar Lohiya National Law University

Title of the Paper- = Right to Education: Fair Procedure of Admission in Educational Institutions

Course- B.A.LL.B. (Hons)

Year- 3rd year

Institute- Dr. Ram Manohar Lohiya National law university, Lucknow

Correspondence Address- Avneesh Kumar, Student 3rd year B.A.LL.B.(Hons), Room No. 272, Boys Hostel, Dr. Ram Manohar Lohiya National Law University, Sector D1, LDA, Kanpur Road Scheme, Lucknow- 226012 (Uttar Pradesh) India.

E-mail - akakak.kumar7@gmail.com

Mob - (0) 9548306485.

Mob - 2 (0) 9319396563

Title- Right to Education: Fair Procedure of Admission in Educational Institutions

ABSTRACT

Ideally, the method of selection must be entirely based on merit but the fact that all candidates may not have equality of opportunity is a factor that has to be reckoned with. Departure from merit can be based on two considerations- one is the interest of individual states and the other is the backwardness of another religion. . The government cannot extend the shelter of reservation where minimum qualifications are absent. Similarly, all the best talent cannot be completely excluded by wholesale reservation.... A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potentials of the weak with the partial recognition of the presence of competitive merit-such is the dynamic of social justice which animates the three egalitarian articles of the Constitution. Wholesome reservation only for students of that particular state is unconstitutional. Reservation based on residence cannot exceed 70% of the total number of open seats, after taking into account other kinds of reservations which have been validly made. In the case of post graduate courses, the reservation cannot exceed 50% of the total number of seats. These rules will equally apply for admission to BDS and MDS courses, it was held in the case of Pradeep Jain v Union of India, 1984.

In another case of State of Madhya Pradesh v Gopal D, Tirthani, 2003 the court held in very clear wording-

.it is not open to the University or the government to dilute that standard by fixing marks lower than what is set out by the medical council of India if they had any difficulty they ought to have approached the medical council of India for fixing of appropriate standards in that regard It show the positive tendency of the court. And, it also carries a message that the admissions to the educational institutions should be based on fair procedure. The entire country is taken as one nation with one citizenship and every effort of the Constitution makers is directed towards emphasizing, maintaining and preserving the unity and integrity of the nation.

Private unaided educational institutions have a right to devise a rational selection and admission procedure, and surrendering the entire process to the state is illegal, the Supreme Court has said in a very recent decision. A vacation Bench consisting of Justices Markandey Katju and Deepak Verma, in its interim order passed in May 2009. Such a system can involve both written and oral tests for selection, based on the principle of fairness. Surrendering the total process of selection to the state is unreasonable. In the case of Harish Verma v. Ajay Srivastava, 2003 it was also held by the court that the state government cannot relax or lower the minimum qualifying marks prescribed by the regulation of the Post Graduate Education Regulation, 2000. . In an another case, Gujarat University v Rajiv Gopinath Bhat, 1996, a rule providing for first preference to candidates of Gujarat University second preference to candidates of Gujarat and a further provision that any vacancy shall remain unfilled was held invalid; it was totally a arbitrary classification. In the case of Preeti Srivastava v State of Madhya Pradesh, 1999, our Supreme Court observed that it did not propose to examine whether the reservations are permissible at the post graduate level. But it went on to extensively discuss the importance of maintaining excellence at the higher level of medical education.

In the case of Praveen Singh v State of Punjab ,2000, it was said by the court Arbitrariness being opposed to reasonableness is an ante- thesis to law. There cannot, however, be any exact definition of arbitrariness neither can there be any straight jacket formula evolved therefore, since the same is dependent on the varying facts and circumstances of each case. In this case selection was to be made both on the basis of marks obtained in the written test and viva voce, treating the marks obtained in the written test as an eligibility criterion and selection on the basis of viva voce was held arbitrary and capricious, and the entire selection was set aside by the court.

In the famous case of Ajay Hasia v Khalid Mujib, 1981 a large number of students were given admission to the regional engineering college because of high marks obtained at the interview level although they had secured low marks in the written test. Supreme Court gave directions that the marks of the intervi9ew cannot exceed 15% of total marks. Also in the case of Ashok Yadav v State ofHarvana, 1987 it was held that prescription of 33.3 % marks for the oral interview was immensely large spread and this test tended to become a determining factor i9n the selection process and opens the door for arbitrariness. In T.M.A. Pai Foundation and Others v State of Karnataka 2002, it was held by the court that the reservation in minorities institutions will be interference with their autonomy, and hence declared void.

In the case of Ashok Kumar Thakur v Union of India[1], It was decided by the court that the reservation in the aided educational institution is constitutional, but as to unaided educational institutions are concerned, the majority didnt answer, but Justice Dalveer Bhandari held that reservation in private unaided institution is violative of basic structure of the Constitution and hence unconstitutional. Justice Bhandari's comments are significant because the remaining four judges on the Bench left the question open to decide in another appropriate petition filed by an affected unaided institution.

A fair and transparent admissions system is essential for all applicants. Higher education is a valuable commodity: it can affect salary, job security andpower to influence society. What is fair and reasonable? The answer will depend upon so many things, particular facts of the case, but we have to devise a system that we can ensure quality education as well as goal of equality. As said by the report of the steering committee on higher education in England-

[Full Paper]

INTRODUCTION

The doctrine of equality is a necessary corollary to the highly concept of rule of law accepted by our constitution. Now, in our constitution the phrase procedure established by law was accepted but from the case of Maneka Gandhi[2], it was held by the honorable court that we cant deviate from the Rule of law. Now, right to equality is also under the preview of rule of law, which is dealt in our constitution under article 14, it contains many thing with equality. Right against any type of arbitrary action is also included in it. If we take specifically about education and educational institution then the admission procedure must be fair. As said in the case of Mohini Jain v State of Karnataka[3], the dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarily the education which brings-forth the dignity of a man.. An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him

So many cases came before the honorable Courts related to the arbitrary or unfair procedure before the courts relating to the interview, different type of state reservation and management quota. The test for deciding that a particular admission procedure is right or not we have to see different type of factors as like territorial, geographical or other relative reasonable basis, and, they must have a reasonable nexus with the object which is sough to be achieved.

It will be a matter of fact in each case that an action is reasonable or not, we can take some line said by great Krishna Iyer. in the casse of Dr. Jagdish Saran v. Union of India[4] 1980, that we can make reservations

"..but it must be remembered that exceptions cannot overrule the rule itself by running riot or by making reservations as a matter of course in every university and every course. For instance, you cannot wholly exclude meritorious candidates as that will promote Sub-standard candidates and bring about a fall in medical competence injurious in the long run to the very region .... Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation. So, within these limitations without going into excesses there is room for play of the State's policy choices." He further observed, "The first caution is that reservation must be kept in check by the demands of competence. You cannot extend the shelter of reservation where minimum qualifications are absent. Similarly, all the best talent cannot be completely excluded by wholesale reservation.... A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potentials of the weak with the partial recognition of the presence of competitive merit-such is the dynamic of social justice which animates the three egalitarian articles of the Constitution.

Methods of Selection and Reservation-

Ideally, the method of selection must be entirely based on merit but the fact that all candidates may not have equality of opportunity is a factor that has to be reckoned with. Departure from merit can be based on two considerations- one is the interest of individual states and the other is the backwardness of another religion. However even some of the judgments of the Supreme Court dont come in line with the well accepted view of that area, as like in the case of Vasundhara . v State of Mysore[5], it was held by the court that a condition of minimum residence of ten years in the state of Mysore in addition to being domiciled in that state was upheld on the ground that it was reasonable and the fact it would cause hardship to some candidates who could not satisfy the ten year rule would not be ground to strike it down. But it is submitted that that the ten years rule is unconstitutional and has absolutely no nexus with the objective of selecting the best possible candidates for admission to medical colleges. Such a other situation arose in the case of Meenakshi Malick v University of Delhi[6], where it was held by the Supreme Court that a condition of schooling for last ten years in Delhi would be unreasonable where a candidate had to leave for a foreign country due to transfer of his parents. It also shows a tendency that it would be unreasonable to lay any hard and fast rule the facts in every case are to be judged.

Wholesome reservation only for students of that particular state is unconstitutional. Reservation based on residence cannot exceed 70% of the total number of open seats, after taking into account other kinds of reservations which have been validly made. In the case of post graduate courses, the reservation cannot exceed 50% of the total number of seats. These rules will equally apply for admission to BDS and MDS courses, it was held in the case of Pradeep Jain v Union of India[7]. In the case of Govind A. Mane v State of Maharastra[8], 2000, a district wise merit was prepared in spite of a common test; different number of seats were allotted to the different districts; it was held by the court that article 14 doesnt forbids legislation but it has to be justified on the basis of nexus between the classification and the object to be achieved, the fact that the classification is itself reasonable is not enough to support it unless there is nexus with the object; here as we are concerned with the best talent, the allocation of seats district wise has no reasonable relation with the object which is sough to be achieved.

In another case of State of Madhya Pradesh v Gopal D, Tirthani[9], 2003 the court held in very clear wording-

In Dr. Pradeep Jain v. Union of India[10], 1984 the Court had laid down a scheme of admission to medical colleges in graduate and post-graduate courses. By its order dated September 1987 in a miscellaneous petition the Court made certain specific directions. The court said The entire country is taken as one nation with one citizenship and every effort of the Constitution makers is directed towards emphasizing, maintaining and preserving the unity and integrity of the nation

In the case of Pradeep Jain and after it some specific guidelines were prepared by the court in relation to fair procedure of admission in educational institutions.

It is well settled that 70% is the maximum for reservation based on residence. The balance 30% is to be calculated only after taking into account valid reservations for scheduled castes, schedule tribes, etc. No state government, University or Medical College shall fill the 30% non reserved seats on the basis of comparative marks in different qualifying examination. The admission must be based on an open entrance open to all candidates through the country.

In absence of any rule to that effect, it would be an administrative function of the appointing/appropriate authority to take a decision as to which method should be adopted for recruitment on any particular post. It may depend on various factors relevant for the purpose e.g. status of the post, its responsibilities and job requirement, the suitable qualifications as well as the age as may be desirable may also be taken into consideration while making such an administrative decision. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for the judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive, but actually it should not be something malafide.

The Bench passed this order on a batch of appeals against the decision of the Madhya Pradesh High Court in Jabalpur, allowing the State to conduct a common entrance test to fill all seats in private unaided medical and dental colleges. The appeals were filed by private unaided colleges and an association of such institutions in Madhya Pradesh. Quoting the judgment in the TMA Pai Foundation[12] case, the Bench said greater autonomy must be granted to private unaided institutions, compared with private aided institutions. The private institutions are right in submitting that it is not open to the [High] court to insist that statutory authorities impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution.

In our view, a balance has to be struck. While the State government did have an element of interest in the private unaided professional institutions, this did not mean there would be no autonomy for them. After all, private unaided institutions have to generate their own resources and funds, and consequently they must have a larger degree of autonomy than aided institutions or the State government institutions, the Bench said. The Bench said: In this situation, we are of the opinion that this court must use its creativity and find out a workable, balanced via media to safeguard the interest of both parties the State government, on the one hand, and private unaided institutions, on the other and also to keep the interests of students in mind. We, therefore, direct that admissions to private unaided medical/dental colleges in Madhya Pradesh be done by first excluding 15 per cent NRI seats (which can be filled by private institutions as per Inamdars[13] case), and allotting half of the 85 per cent seats for admission to undergraduate and postgraduate courses to be filled by an open competitive examination by the Stategovernment, and the remaining half by the association of the private medical and dental colleges.

Post Graduate Courses

The Supreme Court has directed that reservations to post graduate courses should no exceed 50% of the total number of seats available for admission. This is the outer limit which can be subject to revision on the lower side; in the case of M.B.B.S. such type of revision can be done by the Medical Council of India. In the case of super specialist courses like cardiology or neuro-surgeory, there should be no reservation at all, even on the basis of institutional performance and admissions should be purely on merit on all Indiabasis. For other post graduate courses, the Supreme Court observed in the case of Pradeep Jain, that reservations on the basis of institutional performance could be permissible in the sense that a student who has passed MBBS course from a particular college or university may be given performance in admission to post graduate course in the same college or university subject to the 50% rule mentioned above. Strangely, the observations regarding institutional performance was held to be in reference to university wise institutional performance and not college wise institutional performance.

In the case of Harish Verma v. Ajay Srivastava[14], 2003 it was also held by the court that the state government cannot relax or lower the minimum qualifying marks prescribed by the regulation of the Post Graduate Education Regulation, 2000.

The universitywise prefencial treatment may be consistent with the rule of equality of opportunity where it is calculated to an imbalance or handicap and permit equality in the larger sense. As in an another case, reservation of just 2% seat in post graduate courses for candidates from other states was struck down as unconstitutional . In an another case, Gujarat University v Rajiv Gopinath Bhat[15], 1996, a rule providing for first preference to candidates of Gujarat University second preference to candidates of Gujarat and a further provision that any vacancy shall remain unfilled was held invalid; it was totally a arbitrary classification.

The courts have strongly disapproved reservations in postgraduate courses on the ground of institutional preference, though a justified reasonable institutional preference being allowed, for having regard to broader considerations of equality of opportunity; and institutional continuity in education. Institutional reservation is no supported by the Constitution of India, a certain degree of preference for students of the same institution intending to pursue further studies therein is permissible on the grounds of convenience, suitability and familiarity with an educational environment. Such preference has to be reasonable and not excessive.

In the case of Preeti Srivastava v State of Madhya Pradesh[16], 1999, our Supreme Court observed that it did not propose to examine whether the reservations are permissible at the post graduate level. But it went on to extensively discuss the importance of maintaining excellence at the higher level of medical education. In particular, a reference was made to several decisions wherein it had been held that at the highest levels, any reservation would be detrimental.

Interview/ Viva Voce

In the case Chitraleka v. State of Mysore[17], 1964 it was decided by the court that total marks allotted in an examination cannot exceed 25% out of the total marks. However, a very strong dissenting opinion was provided by Mudholkar J., he pointed out that it is quite dangerous process; he called it a devious method of adding to the qualifications of less meritorious candidates at the discretion of the selection committee at the interview. It was rightly pointed out that after reservation of 48% seats for SC/ST/OBC classes already resulted in reducing the seats available for open competition and by allocating high marks for interview there is further dilution of merit. It is submitted that the minority view was a correct one. After this case in an another case Subash v Principal[18], 1967 , fixation of 100% marks for viva voce as against 40% for other criteria is arbitrary and hence violation of ar. 14. It was also said by the court that no hard and fast rule of universal application can be laid down for allocation of marks for viva voce, but when such violation is capable of being misused or abused in its exercise, it violates ar.14 and is liable to be struck down. Making interview the only criteria for selection, always leave for suspicions.

In the case of Praveen Singh v State of Punjab[19] ,2000, it was said by the court Arbitrariness being opposed to reasonableness is an ante- thesis to law. There cannot, however, be any exact definition of arbitrariness neither can there be any straight jacket formula evolved therefore, since the same is dependent on the varying facts and circumstances of each case. In this case selection was to be made both on the basis of marks obtained in the written test and viva voce, treating the marks obtained in the written test as an eligibility criterion and selection on the basis of viva voce was held arbitrary and capricious, and the entire selection was set aside by the court.

In the famous case of Ajay Hasia v Khalid Mujib[20], 1981 a large number of students were given admission to the regional engineering college because of high marks obtained at the interview level although they had secured low marks in the written test. Supreme Court held the process of the admission as an unfair one. The court also said If the marks allocated for the oral interview do not exceed 15% of the total marks and the candidates are properly interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criteria of reasonableness and non-arbitrariness. The court even suggested that the interviews be tape recorded, so that there is evidence to judge whether interviews were conducted in an arbitrary manner or not.

Further, in the event, the interview was the sole criteria and the written test being treated as qualifying test, the Public Service Commission ought to have clearly stated that upon completion of the written elimination test, selection would be made on the basis of the viva voce test only as is available in the decision of Ashok and Ors. v. State of Karnataka[21] 1992. Be it noted that there is always a room for suspicion for the common appointments if the oral interview is taken up as the only criteria. Of course, there are posts and posts, where interviews can be a safe method of appointment but to the post of a Block Development Officer or a Panchayat Officer wherein about 4500 people applied for 40 posts, interview cannot be said to be a satisfactory method of selection though however it may be a part thereof - In the factual score we have the advantage of having the Rules prescribing the mode and method of appointments and specific marks are earmarked for written examinations of various subjects together with totality of marks for viva voce test. As a matter of fact out of 450 marks only 50 marks have been allotted for interview by the Service Commission itself - why these 400 marks allotted for a written examination in four different subjects, if interview was to be the guiding factor: there has been however, no answer to the same excepting that the Court ought not to interfere in the matter of selection process in the absence of mala fides - true it is that in the event the selection is tainted with mala fides, it would be a plain exercise of judicial power to set right the wrong - but is it also realistic to assume that when the Commission in clear and categorical language recorded that 450 marks would be the total marks for the examination and out of which only 50 marks are earmarked for viva voce test, the Commission desired that these 50 marks would be relevant and crucial and the other 400 marks would be rendered totally, superfluous and of no effect at all. The language used is rather plain and is not capable of the interpretation as is being presented before us during the course of hearing and as has been held by the High Court. Reliance on 50 marks only and thereby avoiding the other 400 marks cannot in our view having due regard to the language used, be said to be reasonable or devoid of any arbitrariness.

While considering whether the marks allocated to interview is arbitrary or not, what is required to be ensured is as to whether the allocation, as such is with an oblique intention and whether it is so arbitrary as capable of being misused in its exercise. Inference from a certain number of instances where candidates getting more marks in oral interview than they have obtained in written test, by itself is no sufficient to set the selection aside, unless there is a case of malafide or bias. In case where the marks secured in interview and in written test is not grossly disproportionate there can be no arbitrariness, especially when the candidates are aware that criteria fixed for selection and allocation of marks appeared in the interview. In the case of Vijay Syal v State of Punjab[22], 2003 it was also held by the court that it was not for the court to sit in judgment over such assessment and particularly in the absence of any malafide or extraneous considerations attributed and established. Also in the case of Ashok Yadav v State of Harvana[23], 1987 it was held that prescription of 33.3 % marks for the oral interview was immensely large spread and this test tended to become a determining factor i9n the selection process and opens the door for arbitrariness.

With regard to fixation of marks for interview in a selection broadly fall in two categories: (i) selection for admission to educational institutions and (ii) selection for employment in service. The personality traits students seeking admission to educational institutions are not fully developed and therefore greater importance has to be given to written examination than to viva voce but in case of appointment to public service recruitment has to be made from persons of mature personality.

Minority Institutions

Apart from individual rights which the members of the minority communities are entitled to along with the rest of the population, the Constitution guarantees certain collective rights for the minorities to help their people, and preserve their language, religion and culture. Articles 29 and 30, grouped as Cultural and Educational Rights, provide cultural and linguistic autonomy to the minorities. These rights were meant to preserve the rich diversity of India and give the minorities a sense of security and belonging. However, the interplay of these two Articles has been a matter of intense debate, touching on issues such as secularism and the degree of state control over private or minority educational institutions. At the core of the debate are Article 29(2), which lays down that no citizen shall be denied admission to any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them, and Article 30 (1), which guarantees all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. It is not that these two provisions are in conflict with each other. But their judicial interpretation has often resulted in varied, it is not fixed emphases on their relative significance for the principles of equality and secularism.

In the judgment of the 11-member Constitution Bench of the Supreme Court on October 31 in the T.M.A. Pai Foundation and Others v State of Karnataka[24] 2002, and Others case Supreme Court gave a very important pronouncement. Several other, related cases were grouped together with this case. In their petitions and appeals before the Supreme Court, many private educational institutions established by minorities and non-minorities, irrespective of whether they are dependent on state aid, asserted their right to establish and administer educational institutions of their choice unhampered by rules and regulations that unnecessarily impinge upon their autonomy. This is not the first time that the Supreme Court has had to interpret these Articles, and what the Bench did was to reiterate the principles laid down in the earlier judgments, devoid of their rigidity. In particular, the Bench sought to remove certain restrictions in the administration of private educational institutions, especially minority institutions, which complained that such restrictions infringed on the right guaranteed to them under Article 30(1).

In St. Stephen's College vs University of Delhi[25] (1992), the Supreme Court had held that even a minority institution receiving aid from state funds was entitled to accord preference to or reserve seats for candidates belonging to its own community on the basis of religion or language. However, the court allowed such institutions to admit students of its own community to the extent of 50 per cent of the annual intake and insisted that such differential treatment must be in conformity with the university's standards. The court held that differential treatment of students in the admission process did not violate Article 29(2) or Article 14 (equality before law) and it was essential to maintain the minority character of the institution.

In 1993, a five-Judge Bench of the Supreme Court prima facie gave the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection, and therefore the questions that arose in St. Stephen's should be answered authoritatively by a larger Bench. Thus the decision in St. Stephen's was reopened and heard by a Seven-Judge Bench in the T.M.A. Pai Foundation case. The petitioner, T.M.A. Pai Foundation, Manipal, (claiming to be one belonging to a linguistic minority) argued that minority institutions should be insulated from judgments and legislation affecting others as for instance the ruling in the 1993 case of Unni Krishnan vs State of Andhra Pradesh[26] that all colleges offering professional courses will have to reserve 50 per cent of the seats for candidates selected through an entrance examination conducted by the government. Minority educational institutions (MEIs) questioned the legal compulsions in having to admit non-minority students and asked why there was no statute obliging non-MEIs to admit students from minority communities. In February 1997 the court directed that the matter be placed before a Bench of at least 11 Judges in view of the 42nd Amendment to the Constitution, whereby the subject of education was transferred to the Concurrent List from the State List under the Seventh Schedule of the Constitution. The question of who would be regarded as a "minority" was required to be reconsidered because the earlier case laws related to the pre-amendment era, when education was in the State List. An 11-Judge Bench set up during the tenure of M.M. Punchhi as Chief Justice was disbanded before it could complete the hearing of the case.

The present Bench, headed by Chief Justice B.N. Kirpal, was set up early this year during the tenure of S.P. Bharucha as Chief Justice. It framed 11 specific questions to be answered by it. During the hearing, the Union of India, represented by Solicitor-General Harish Salve, agreed that private, unaided educational institutions were entitled to greater autonomy. He, however, contended that Article 29(2) was applicable to minority institutions, and the claim of minority institutions that they could preferably admit students of their own religion or language to the exclusion of other communities was impermissible. In other words, under Article 29(2), even minority institutions could not deny admission on the grounds of religion, race, caste or language. Several States disagreed with the Centre's arguments on the applicability of Articles 29(2) and 30(1). Madhya Pradesh, Chattisgarh, and Rajasthan submitted to the court that the words "their choice" in Article 30(1) enabled MEIs to admit members of the minority community and that their inability to admit others as a result of the exercise of their choice would not amount to denial as contemplated under Article 29(2). On the contrary, Tamil Nadu, Punjab, Maharashra, West Bengal, Bihar and Uttar Pradesh submitted that Article 30(1) was subject to Article 29(2), arguing that an MEI availing itself of state aid loses the right to admit members of its community on the basis of the need of the community.

The 11-Judge Bench did not accept the contention that MEIs are outside the injunction laid down under Article 29(2). The Bench, however, held that denying admission even though seats are available, on the grounds of the applicant's religion, race, caste or language, is prohibited, but preferring students of minority groups did not violate Article 29(2). Examining the word "only" used in Article 29(2), six Judges of the Bench (Justices B.N. Kirpal, G.B. Pattanaik, S. Rajendra Babu, K.G. Balakrishnan, P. Venkatarama Reddi, and Arijit Pasayat) said that denying admission to non-minorities for the purpose of accommodating minority students to a reasonable extent will not be only on the grounds of religion and so on, but is primarily meant to preserve the minority character of the institution and to effectuate the guarantee under Article 30(1). They held that as long as the MEIs permitted the admission of non-minorities to a reasonable extent based on merit, it would not be an infraction of Article 29(2), even though the MEI admitted students of the minority group of its own choice for whom it was meant.

"What would be a reasonable extent would depend upon variable factors, and it may not be advisable to fix any specific percentage. The situation would vary according to the type of institution and the nature of education that is being imparted in the institution. A variable percentage of admission of minority students depending on the type of institution and education is desirable, and indeed necessary to promote the constitutional guarantees enshrined in both Article 29(2) and Article 30," the six Judges said. Therefore, the six Judges, while endorsing the ratio laid down in St. Stephen's, removed the 50 per cent ceiling fixed in that case. They said that they believed that it would be more appropriate, depending on the level of the institution and the population and educational needs of the area in which the MEI was located, that the state properly balanced the interests of all by providing for such a percentage of students of the minority community to be admitted so as to serve adequately the interest of the community for which the MEI was established. At the same time, the aided MEIs can be required inter se to observe merit amongst the eligible minority applicants and the passage of common entrance test, where there is one, by candidates for admissions in professional and non-professional colleges. If there is no such test, a rational method of assessing comparative merit has to be evolved, they added. The non-minority seats can be filled through a common entrance test, counselling by a state agency, or other relevant criteria for the determination of merit. The state, for instance, could insist on allocating a certain percentage of these seats to candidates belonging to the weaker sections of society, they pointed out.

While Justices V.N. Khare, S.N. Variava, and Ashok Bhan in two separate judgments, concurred with this decision of the six Judges, Justices Syed Shah Mohamed Quadri and Ruma Pal expressed certain reservations. Justice Quadri disagreed with the majority decision giving the state the power to prescribe a percentage of ceiling on the number of minority students to be admitted to an MEI. He held that receipt of state aid would not in any way affect the right, if any, of MEIs to admit students of the minority communities.

It was warned by Justice Ruma Pal that if the Executive was given the power to determine the requirements of the minority community in admissions to its educational institutions, it would have the effect of subjecting the MEI to an "intolerable encroachment" on the right under Article 30(1) and let in by the back door, as it were, those who should be denied entry all together. In her view, Article 29(2) pertains to the right of an individual and is not a class right. Treating non-minorities as a class, as the majority Judges seem to have done, and giving them a fixed percentage of available seats, would wash away a large chunk of the right of an aided MEI to operate for the benefit of the community it was set up to serve, she explained in her dissent. Besides, it would not be fair to distinguish aided MEIs from unaided MEIs and deprive the former of the benefit of non-application of Article 29(2), she reasoned.

The majority Judges have apparently reposed rather exaggerated trust in the objectivity and neutrality of the state to determine the requirement of the minorities' educational needs in various States. Such a trust may be misplaced if one considers the recent instances of state backing to minority-bashing and the consolidation of majoritarian tendencies in some States. All the 11 Judges, however, agreed that religious and linguistic minorities, under Article 30, have to be considered State-wise; that Article 30(1) includes the right to establish and administer even professional educational institutions; that there could be minimal regulatory measures to ensure educational standards and to maintain excellence of MEIs; that the procedure and method of admission as well as selection of students must be fair and transparent; that MEIs should be able to raise reasonable surplus to meet the cost of expansion and augmentation of facilities, without resorting to capitation fee or profiteering; and that all citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26 but this right is subject to the provisions of Articles (19(6) and 26(a), whereas the right of MEIs stems from Article 30(1).

The judgment has led to legitimate fears that the unaided educational institutions, whether minority or majority-run, will now be free to fix their own fee structure, thus fleecing the students. The only limitation on the management of these institutions is the suggestion that the government can introduce regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institutions. However, in the absence of clarity on what constitutes capitation fee and profiteering, the judgment may have opened the floodgates of market forces; it leaves the decision on the fees to be charged to private educational institutions that are not dependent on government funds.

The Bench justified the fee hike in professional education, saying the number of seats available in government and government-aided colleges is very small, compared with the number of students seeking admission to private medical and engineering colleges and who may otherwise be eligible and deserving. As the void in the fields of medical and technical education has been filled by private institutions established in different places with the help of donations and the active part taken by public-minded individuals, the judgment suggested there was no harm if those who seek professional education in such institutions also pay for it.

The judgment defends the fee-hike in private unaided professional educational institutions by suggesting that they may be allowed to charge reasonable surplus to make their functions sustainable and to allow for augmentation and improvement. By citing worldwide trends in charging higher fee in professional courses, the judgment declared the scheme framed in the Unni Krishnan case unconstitutional. Under the scheme evolved in the 1993 case, an expert committee headed by a Vice-Chancellor fixed the fee for "free" and payment category seats in the self-financing colleges, after public discussions. Under that scheme, private professional colleges can fill up only 15 per cent of the seats with their candidates for any quantum of fee. Of the remaining 85 per cent, 50 per cent were free seats, and 35 per cent were for a fee fixed by the government.

The effect of the judgment by the 11-Judge Bench is that admissions will no longer be done by a centralised counselling and single window system, and the fee structure would not be fixed by the government for all types of colleges.

Conclusion-

A fair and transparent admissions system is essential for all applicants. Higher education is a valuable commodity: it can affect salary, job security andpower to influence society. What is the fair procedure of admission is will always remain a question dependent on the facts and circumstances, in the very recent past a new matter arose in this area that is is the reservation in private educational institutions is constitutional if these institutions are unaided by the state? The answer to this question is not given by the court. In the case of Ashok Kumar thakur v Union of India[27], It was decided by the court that the reservation in the aided educational institution is constitutional. The court also reiterated a point in the judgement that the Union of India should appreciate in proper prospective that the root cause of social and educational backwardness is poverty. All efforts have to be made to eradicate this fundamental problem. Unless the creamy layer is removed, the benefit would not reach those who are in need. Reservation sends the wrong message.

So the question remained open that whether or not the reservation in unaided private educational institutions is valid or not.

But in a very recent decision of Supreme Court[28] in May 2009 it was said by the Supreme Court that a proper autonomy should be given to private educational institutions. Private unaided educational institutions have a right to devise a rational selection and admission procedure, and surrendering the entire process to the state is illegal, the Supreme Court has said.A vacation Bench consisting of Justices Markandey Katju and Deepak Verma, in its interim order passed on Wednesday, said: Any system of student selection will be unreasonable if it deprives the private unaided institution of the right to rational selection, which it devised for itself subject to the minimum qualification that may be prescribed, and to some system of computing the equivalence between different kinds of qualifications like a common entrance test. Such a system can involve both written and oral tests for selection, based on the principle of fairness. Surrendering the total process of selection to the state is unreasonable.

The Bench passed this order on a batch of appeals against the decision of the Madhya Pradesh High Court in Jabalpur, allowing the State to conduct a common entrance test to fill all seats in private unaided medical and dental colleges. The appeals were filed by private unaided colleges and an association of such institutions in Madhya Pradesh. Quoting the judgment in the TMA Pai Foundation case, the Bench said greater autonomy must be granted to private unaided institutions, compared with private aided institutions. The private institutions are right in submitting that it is not open to the [High] court to insist that statutory authorities impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution.

In the same case, Ashok Kumar Thakur v. Union of India reported by a newpaper[29] in 2008 Justice Dalveer Bhandari held that reservation in private unaided institution is violative of basic structure of the Constitution and hence unconstitutional. Justice Bhandari's comments are significant because the remaining four judges on the Bench left the question open to decide in another appropriate petition filed by an affected unaided institution.

On an issue other judges preferred to skip, Justice Bhandari saw reason to decide. He said, "The Government will likely target unaided institutions in the future. At that time, this Court will have to go through this entire exercise de novo.... Therefore, looking to the extraordinary facts, I have decided to proceed with this aspect of the matter in the larger public interest." Justice Bhandari held, "Imposing reservation on unaided institutions violates the basic structure by obliterating citizens' Article 19(1)(g) right to carry on an occupation (an essential fundamental right)."

While the Government could afford to ignore the single judge's view being in minority, the fact that other judges have left the question open is indeed a cause of worry. In his reasoning, Justice Bhandari relied upon previous judgements of the Supreme Court delivered by an eleven-judge Bench in TMA Pai Foundation case (2002) further affirmed by a seven-judge Bench in PA Inamdar case as recently in 2005.Quoting Pai, the single judge held, "Selecting students or employees goes to the heart of an organisation's autonomy. The essence of an unaided educational institution is the freedom to manage its affairs."

If the Government was to impose reservation in private unaided institutions, Justice Bhandari visualised four major problems that would occur. "At least four problems will likely arise: One, academic standards suffer; Two, attracting and retaining good faculty becomes more difficult; Three, the incentive to establish a first rate unaided institution is diminished; and ultimately the global reputation of our unaided institutions is severely compromised." 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 except merit.

So we should hope in the near future petition may come on the ground of the unconstitutionality of the reservation in the unaided private educational institutions, and the court may decide it in positive, taking into view, the minority opinion of justice Bhandari. And, today even there is need for the change ofr the parameter of reservation, instead of caste based reservation we should have a system whuich should be purely based on the economic condition of the person to whom it is being provided. The conditions have changed from the time of the independence, and now many upper caste candidate are eligible for the reservation, so their should be complete revisal of the present system of reservation. Ultimately I want to end with a paragraph from a research made by Steering group in U.K.[30] on Fair Admission policy, I quote.

It is not the task of higher education admissions to compensate for educational or social disadvantage. But identifying latent talent and potential, which may not fully be demonstrated by examination results, is a legitimate aim for universities and colleges which seek to recruit the best possible students regardless of background. Universities and colleges should provide, consistently and efficiently through appropriate mechanisms, the information applicants need to make an informed choice. This should include the institutions admissions policy and detailed criteria for admission to courses, along with an explanation of admissions processes. It should include a general indication of the weight given to prior academic achievement and potential demonstrated by other means.

Bibliography

Books

D.D.Basu, Sorter Constitution of India 14th EDN, vol-1 &2 (2009).

Arvind P. Datar, Commentary on the Constitution of India 2nd edn, vol-1,2, 2007

M.P Jain, Indian Constitutional Law, 5th EDN, (2005)

V.N. Shukla, Constitution of India,11th edn,(2008)

H.M. Seervai, Constitutional Law of India 3rd edn, (1984)

J.N. Pandey, Constitution of India 45th edn (2008)

Magazines & Journal

Fronltline (Indias leading Magazine) Volume 20 - Issue 01, January 18 - 31, 2003

Fronltline , Volume 19 - Issue 23, November 09 - 22 2002

Fair admissions to higher education: Recommendations for good practice, Higher Education Review, Sep 2004.

Internet Reference

Reservation can ruin India, (Dec 15, 2006), http://www.merinews.com,

[1] [2008] INSC 615

[2] AIR 1978 SC 597.

[3] AIR 1992 SC 1858.

[4] AIR 1980 SC 820.

[5] AIR 1971 SC 1439

[6] AIR 1989 SC 1568.

[7] [1984] 3 SCR 942.

[8] AIR 2000 SC 1576.

[9] AIR 2003 SC 2952.

[10] [1984] 3 SCR 942.

[11] The Hinu, May 29 2009, Unaided Colleges can devise fair system: court at http://www.thehindu.com/2009/05/29/stories/2009052956461800.htm

[12] AIR 2003 SC 355

[13] P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3236.

[14] (2003) 8 SCC 69

[15] AIR 1996 SC 2066.

[16] AIR 1999 SC 2895

[17] AIR 1964 SC 1823

[18] AIR 1967 J&K 106

[19] (2000) 8 SCC 633

[20] AIR 1981 SC 487

[21] (1992)ILLJ87SC

[22] JT 2003 (5) SC 241

[23] AIR 1987 SC 593

[24] (2002) 8 SCC 481

[25] AIR 1992 SC 1630

[26] AIR 1993 SC 217

[27] [2008] INSC 615

[28] Unaided colleges can devise fair admission system: court, The Hindu May 29, 2009, at http://www.thehindu.com/2009/05/29/stories/2009052956461800.htm

[29] The pioneer, at http://www.hvk.org/articles/0408/65.html., (2008) 6 SCC 1.

[30] Fair admissions to higher education: Recommendations for good practice, Higher Education Review, Sep 2004

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