ISLAMIC ACADEMY OF EDUCATION AND ANOTHER v. STATE OF KARNATAKA AND OTHERS

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se minorities and inter se weaker sections can be taken care of A in terms of para 68 of the judgment.

(xi) The directions issued by this Court to unaided professional institutions contained in paras 67 and 68 only are to be given effect to although the Bench referred to professional colleges also in paras 58 and 59 of the judgment. B· OVERVIEW OF THE JUDGMENT INT.MA. PAI FOUNDATION:

The right to establish an institution is provided for in Article 19( l )(g) of the Constitution of India. Such a right, however, is subject to reasonable restrictions, which may be brought about in terms of Clause (6) thereof. C Minorities whether based on religion or language, however, have a fundamental right to establish and administer educational institutions of their own choice. The right under clause (1) of Article 30 is not absolute; and subject to reasonable regulations while inter alia may be framed having regard to the public interest and national interest of the country. Regulations can D also be framed to prevent maladministration as also for laying down the standard of education, teaching, maintenance of discipline, public order, health, ""' morality, etc.

UNNI KRISHNANAN, J.P. E This Court in Unni Krishnan (supra) while framing the scheme directed:

(a) that a professional college should be established and/or administered only by a Society registered under the Societies Registration Act, 1860, or the corresponding Act of a State, or by a Public Trust registered under the Trusts Act, or under the F Wakfs Act, and that no individual, firm, company or other body of individuals would be permitted to establish and/or administer a professional college.

(b) that 50% of the seats in every professional college should be filled by the nominees of the Government or University, selected G on the basis of merit determined by a common entrance examination, which will be referred to as "free seats"; the remaining 50% seats ("payment seats") should be filled by those candidates who pay the fee prescribed therefor, and the allotment of students against payment seats should be done on the basis of inter se H

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A merit determined on the same basis as in the case of free seats. (c) that there should be no quota reserved for the management or for any family, caste or community, which may have established such a college. (d) that it should be open to the professional college to provide for B reservation of seats for constitutionally permissible classes with the approval of the affiliating university. (e) that the fee chargeable in each professional college should be subject to such a ceiling as may be prescribed by the appropriate authority or by a competent court. c (t) that every State government should constitute a committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, as the case may be. This committee should, after hearing the professional colleges, fix the fee once every three years or at such longer intervals, as it may think D appropriate. (g) that it would be appropriate for the University Grants Commission fl to frame regulations under its Act regulating the fees that the affiliated colleges operating on a no grant-in-aid basis were entitled to charge. The AICTE, the Indian Medical Council and the Central E Government were also given similar advice. The manner in which the seats to be filled on the basis of the common entrance test was also indicated.

In T.MA. Pai Foundation (supra) the Scheme framed by this Court restricting the right of the citizen to establish private unaided institutions including minority institutions and manage the same was held to be unconstitutional stating : (I) The Scheme enforced by the State Governments in relation to privately managed institutions would not be a reasonable restriction within the meaning of Article 19(6) of the Constitution of India as it resulted into revenue shortfalls making it difficult for the educational institutions; (2) the provision made for free seats and payment seats amounted to subsidising education of one segment of sqciety at the cost of other which was unreasonable having regard to the fact that higher education has been held not to be a fundamental right.

All orders and directions issued by the State pursuant to or in furtherance of th(! directions in Unnikrishnan are, thus, also unconstitutional.

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ST. STEPHEN'S COLLEGE: A The right of a minority educational institution to adopt its own method of selection is subject to the restrictions contained in clause (2) of Article 29 of the Constitution of India, if the institution is an aided one. It was held that allowing minority educational institutions to select its own method of selection for admission of students to the extent of 50% of the seats would not impinge upon the right under Article 30 of the Constitution oflndia. It was further held that regulations can be imposed by the State for intake of minority categories with regard to need of the minority in the area which the institution intends to serve.

A question, however, arose therein as to whether the State could impose regulatory measures on the institutions run by the minority community which provides for admission by conducting interviews but not solely on the marks obtained in the qualifying examination? In that case, the State had imposed restrictions on the college management compelling it to make admission exclusively on the basis of marks obtained in the qualifying examination. But D the management, in addition to the marks obtained by the students, also conducted interviews for making admission to the college. This Court observed that the denial of power to St. Stephen's College to conduct interviews to select candidates for admission would be violative of the rights of the minority community guaranteed under Article 30(1) of the Constitution. It was held that, any regulatory measure imposed by the State on the minority institutions should be beneficial to the institution or for the betterment of those who join such institutions.

In T.MA. Pai Foundation (supra) while upholding the judgm,'lt in St. Stephen's (supra), that part of the direction whereby the right of the minority institutions were confined to 50% of the seats was held to. be bad.

From the above decisions of this Court, it is evident that though the right engrafted under Article 30(1) of the Constitution does not lay down any .- limitations or restrictions upon the right of a minority to administer its educational institutions, yet the right cannot be used absolutely and unreasonably.

QUESTIONS POSED INT.MA. PAI FOUNDATION:

In T.M.A. Pai Foundation (supra), the Bench framed the following questions: H

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A I. What is the meaning and content of the expression "minorities" in Article 30 of the Constitution of India?

2Copy pinpoint2. What is meant by the expression "religion" in Article 30(1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a B minority in the State, even though the followers of that religion are in majority in that State?

3Copy pinpoint3. (a) What are the indicia for treating an educational institution as a minority education institution? Would an institution be regarded as a minority educational institution because it was established by a C person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?

(b) To what extent can professional education be treated as a matter coming under minorities' rights under Article 30? D

4Copy pinpoint4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated?

5Copy pinpoint5. (a) Whether the minorities' rights to establish and administer E educational institutions of their choice will include the procedure and method of admission and selection of students?

(b) Whether the minority institutions' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid? F (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/ withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and. regulation of fees, etc. would interfere with the right of administration of minorities?

6Copy pinpoint6. (a) Where can a minority institution be operationally located? Where· a religious or linguistic minority in State 'A' establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of the religious/linguistic group from other States where they are non-

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minorities? A (b) Whether it would be correct to say that only the members of that minority residing in State 'A' will be treated as the members of the minority vis-a-vis such institution?

7Copy pinpoint7. Whether the member of a linguistic non-minority in one State can B establish a trust/society in another State and claim minority status in that State?

;. Whether the ratio laid down by this Court in St. Stephen's case (St. Stephen's College v. University of Delhi) is correct? Ifno, what order?

9Copy pinpoint9. Whether the decision of this Court in Unni Krishnan, J.P. v. State C of A.P. (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/ modification and if yes, what?

10Copy pinpoint10. Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29( l) read D with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions? and

11Copy pinpoint11. What is the meaning of the expressions "education" and "educational institutions" in various provisions of the Constitution? E Is the right to establish and administer educational institutions guaranteed under the Constitution?

The Bench did not answer 4 out of 11 questions. The Hon 'ble Chief Justice, B.N. Kirpal delivering the majority judgment consider~d the questions answered by the Bench under the following headings: F l. Is there a fundamental right to set up educational institutions and if so, under which provision?

2. Does the judgment in Unni Krishnan case require reconsideration?

3. In case of private unaided institutions can there be government G regulations and if so to what extent?

4. In determining the existence of a religious or linguistic minority, in relation to Article 30, what is to be the unit, the State or country as a whole? and H

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A 5. To what extent can the rights of aided minority institutions to administer be regulated?

We are not concerned with the subject under heading I. The core issues in this matter revolve around headings 2, 3 and 5 aforementioned.

B We. are, thus, concerned in this case with Question No. 3(b), 4, 5(a), 5(b), 5(c) and 9.

The answers to the relevant questions are in the following tenns:

A.3(b) Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by Article 30.

A.4 Admission of students to unaided minority educational institutions, viz., schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or University concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.

The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.

A minority institution does not cease to be so, the moment ,grant-in- aid is received by the institution. An aided minority educationttl institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired an·d further the citizens' rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the H. types of institution, the courses of education for which admission is

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being sought and other factors like educational needs. The State A Government concerned has to notify the percentage of the non- minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the state agency is necessary to seek admission.

. ' As regards non-minority students who are eligible to seek admission for the remaining seats, admission should n\lrmally be on the basis of the common entr!lnce test held by the state agency followed by counselling· wlia~ver it e"ists.

A.5(a) A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in

- that event, the institution will fail to achieve excellence.

A.5(b) While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe bye-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state qua non-minority students. The merit may be determined either through a common entrance test conducted by the University or the Government concerned followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the university or the government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit.. In the case of such institutions, it will be permissible for the government or the university to provide that consideration should be shown to the weaker sections of the society.

A.5(c) So far as the statutory provisions regulating .the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions H

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A of affiliation to an university or board have to be complied with, but in the mat,ter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any . external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. ··

For redressing the grievances of employees of aided and unaided ., institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals c could be presided over by a Judicial Officer of the rank of District Judge. I , The State or other controlling authorities, however, can always

- prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher D or. a principal of any educational institution.

Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff. E Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.

A.9 The scheme framed by this Court in l!nni Krishnan case and the . direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering.

The conflict has to be resolved keeping the aforementioned findings in view.

CORE QUESTIONS :

(i) Whether unaided professional institutions are entitled to lay down their own fee structure? H

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(ii) Whether in view of the judgment of this Court in T.M.A. Pai A Foundation (supra) private and unaided professional institutions are entitled to have their own admission programme?

(iii) Whether the State Governments are entitled to lay down the quota of total seats to be filled up by the management? B RELEVANT FINDINGS OF THIS COURT IN T.M.A. PAI FOUNDATION

The right to establish and administer educational '.'.1stitutions was held to be guaranteed to citizens under Article 19( 1)(g) of the Constitution of India and to the minorities under Article 30.

One of us (Chief Justice Khare) while agreeing with the majority delivered c a separate opinion relating to aided minority institutions and non-minority institutions as also interpretation of the right of the minorities under Clause· (1) of Article 30 vis-a-vis clause (2) of Article 29 and held that such right is limited by the conditions laid down in clause (2) of Article 29 and clause (3) of Article 28. D Quadri, J. agreed with the aforementioned view stating:

"259. In regard to the minorities seeking recognition and/or aid it was observed in Kera/a Education Bill, (1957) AIR (1958) SC 956 : 1959 SCR 995 that the minorities cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. In such matters, "the State can insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided", (emphasis applied) Thus, it is clear that regulations postulated for granting recognition or aid ought to be with regard to the excellence of education and efficiency of administration viz. to make certain healthy surroundings for the institutions, existence of competent teachers possessing requisite qualifications and maintaining fair standard of teaching. Such regulations are not restrictions on the right but merely deal with the aspects of proper administration of an educational institution, to ensure excellence of education and to avert maladministration in minority educational institutions and will, therefore, be pennissible. This is on the principle that when the Constitution confers a right, any regulation H

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A .frart.ed by the State in that behalf should be to facilitate exercise of that right and not to frustrate it."

Pal, J. also agreed with the said view stating:

"Similarly, the Constitution has also carved out a further exception to B Article 29(2) in the form of Article 30(1) by recognising the rights of special classes in the form of minorities based on language or religion to establish and administer educational institutions of their choice. The right of the minorities under Article 30(1) does not operate as discrimination against other citizens only on ·the ground of religion or language. The reason for such classification is not only religion or c language per se but minorities based on. religion and language. Although, it is not necessary to justify a classification made by the Constitution, this fact of 'minorityship' is the obvious rationale for making a distinction, the underlying assumption being that minorities by their very numbers are in a politically disadvantaged situation and D require special protection at least in the field of education.

Articles 15(4), 337 and 30 are therefore facets of substantive equality by making special provision for special classes on special considerations."

E One of us (Variava, J.) speaking for himself and Bhan, J. agreed with the majqrity but thought it appropriate that a mechanism therefor should be set up observing:

"So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as conditions of affiliation to a University or Board have to be complied with, but in the matter of day-to-day Management, like appointment of staff, teaching and non-teaching and administrative control over them, the Management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the Management itself. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be H

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presided over by a Judicial Officer of the rank of District Judge. The A State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions l,"'". bearing on the merit of an individual for being appointed as a teacher of an educational institution.

Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of Management over the staff, Government/University representative can be associated with the selection committee and the guidelines for selection can be laid down. In regard to un-aided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare, of teachers could be framed.

There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not r~sorted to.

The extent of regulations will not be the same for aided and un-aided institutions."

The majority held that there is an apparent conflict between the provisions of clause (2) of Article 29 and clause (1) of Article 30. Article 29 guarantees the right to every citizen not to be denied admission into 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; whereas clause (1) of Article 30 confers a fundamental right to set up educational institutions of their choice.

A delicate balance was sought to be struck by stipulating that minority educational institutions may admit non-minority students to a "reasonable extent" so that the rights of both minorities and non-minorities are protected. However, the extent to which such balance is to be struck may be determined by the State having regard to such factors as 'the type of institution', 'course of education', 'population and educational needs of minorities'. It was further laid down that the minority institutions are required to admit students having regard to inter-se merit amongst the applicants. Non-minorities students, who qualify the test, would be entitled to seek admission against the "allotted seats" as per their own respective cumulative merit.

However, one ofus Variava, J., speaking for himself and Bhan, J. clearly held that where the minority institutions take aid from the State they do not

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A have any right to admit students of minority community alone. For arriving at the said conclusion, the learned Judge referred to the history of the said provision and the intention of the founding fathers, which was the conferment of a right of minorities to establish "a secular state wherein people belonging :v

to the different religions should all have a feeling of equality and non- B discrimination".

The learned Judge further referred to the significance of conditional clause, 'at their own expense' in the draft article VI which reads as follows:

"Citizens belonging to national minorities in a state whether based on -'religion or language have equal rights with other citizens in forming, c controlling and administering at their own expense, charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion.

No legislation providing state-aid for schools shall discriminate against schools under the management of minorities whether based D on religion or language."

The learned Judge further observed that by reason of Article 30(1) no 'special' or 'additional' right is conferred on the minorities.

E Expression 'minorities' although is not defined in the Constitution, one of us Khare, CJI, referred to the Year Book on Human Rights (I 950) and Encyclopaedia Britannica and some other standard works on the theme of protection of minorities.

Though in para 153 the view regarding merit was expressed, but while answering the question No. 7 was left open to be answered by the appropriate Benches. v The majority opined that the minority status of a group of persons would be determined on the basis of population of the State or Union Territory concerned and not on the whole of the country. It was further held that education within the meaning of the provision of Article 30 would mean and include education from primary level to the post-graduate level and would include professional education as well.

The Bench, however, overruled the dicta in Unni Krishnan 's case (supra) H that education is not a 'business' or 'occupation' within the meaning of Article 19(1 )(g) of the Constitution of India, wherein referring to State of

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Bombay v. R.M.D. Chamarbaugwala, [1957] SCR 874 and incorporating the doctrine of res extra commercium, the Court had observed :

"While the conclusion that 'occupation' comprehends the establishment of educational institutions is correct, the proviso in the aforesaid observation to the effect that this is so provided no recognition is sought from the state or affiliation from the concerned university is, with the utmost respect, erroneous. The fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation."

While declaring that the Scheme framed in Unni Krishnan 's case (supra) C and the direction!! issued to the Government, UGC and other concerned bodies to give effect to the same vis-a-vis privately managed educational institutions as unconstitutional, it upheld two propositions : ( 1) primary education is a fundamental right; and (2) the institution cannot charge any capitation fee or otherwise take.recourse to profiteering. D It was observed :

"The scheme framed by this Court in Unni Krishnan 's case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is E correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering."

The Bench agreed with the contention of the private institutions that affiliation and recognition has to be made available to every institution that fulfils the conditions for grant thereof observing : F "The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very G objective of the institution."

The Court, however, laid emphasis that in professional education merit should be the criteria.

With a view to appreciate the extent to which the Scheme formulated in Unni Krishnan was not found favour with T.M.A. Pai Foundation (supra), H

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A we may set out the observations of this Court in T.MA. Pai Foundation (supra) as follows: '• I . Establishment of Educational Institutions

All citizens have a right to establish and administer educational B institutions under Articles 19( I)(g) and 26, but this right is subject to provisions of Articles 19(6) and 26-A. (See Answer to Question Nos. IO & 11).

2. Admission to Courses

(i) Private Unaided Professional Coileges: c (a) Admission to professional colleges should be based on merit by common entrance test conducted by the Government agencies (See Paragraph 59) ·

(b) Certain percentage of seats can be reserved for admission by D management out of those students who have passed common entrance test held by itself or by the State agency and the rest of the seats may be filled up on the basis of counselling by the State agency. Prescription by percentage has to be determined by the Government according to local needs (See Paragraph 68)

E (c) When one considers the Constitution Bench's earlier statements that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for the education of another more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of marks obtained where urban students F always have an edge over rural students. Those who seek professional education must pay for it. (See Paragraphs 37 & 70). 2 (ii) Private aided professional institutions: ... It would be permissible for the authority giving aid to prescribe by G Rules or Regulations the conditions on the basis of which th_e admissions shall be granted to different aided colleges by virtue of merit coupled with reservation policy of the State. The merit may be determined either through the common entrance test conducted by the University or the Government · followed by counselling or on the basis of entrance test conducted by H individual institution, and method to be followed is for the Government o~ University to decide.

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2. (iii) Private aided minority institutions: A The State Government is not entitled to interfere with the right of minority educational institutions to admit students of their choice so long as the admission is on a transparent basis and the merit is adequately taken care of. The right not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellency thereof, specially in the case of admission to professional institutions. (See Page 588, Q. 4).

2 (iv.) Unaided minority institutions:

Such institutions would have the right of admission of students belonging to minority groups and at the same time would be required to admit reasonable extent of non-minority students as notified by the State Government. In case of professional institutions it can also be stipulated that passing of common entrance test held by the State agency is necessary to seek admission. (Page 588, Qs. 4, 5(a) and 5(b))

3. Reservation of Seats D

.... While the State has a right to prescribe qualifications necessary for admission, private unaided colleges have right to admit students of their choice subject to objective and rational procedure of selection and the compliance with the conditions if any requiring admission of certain percentage of students belonging to weaker sections by granting them free scholarships or scholarships if not granted by th~ Government (paragraph 53).

4. Fee Structure

(i) .. Scheme of "free" and "Payment" seats was evolved on the presumption that the economic capacity of the 50 per cent of admitted students would be greater than the remaining 50%, whereas the converse has proved to be the reality. In this scheme, the "Payment" seat student would not only pay for his own seat, but also finance the cost of a "free seat" classmate. It seems unreasonable to compel a citizen to pay for the education of another, more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of marks obtained where urban students always have an edge over rural students. In practice, it has been the case of the marginally less merited rural or poor students bearing the burden of a rich and well exposed and urban students. (See Paragraph 37). H

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A (ii) The decision in Unni Krishnan insofar as it framed the Scheme relating to grant of admission and fixing fee was not correct, and to that extent the said decision and consequent direction given to UGC, AICTE, Medical Council of India, Central and State Governments etc., is overruled. (Paragraph 45).

B (iii) A rational fee structure should be adopted by the management and it would not be entitled to charge capitation fee and appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus in furtherance of education is permissible. The conditions of granting recognition C or affiliation can broadly cover academic and educational matters including the welfare of students and teachers (Paragraph 69, Q.9).

The problem presented in these matters should be viewed from the aforementioned perspective.

D There is a fundamental right to set up educational institutions both under Article 19(l)(g) and Article 30 of the Constitution oflndia. It held that the Scheme framed by this Court in Unni Krishnan did not impose reasonable restrictions within the meaning of Clause (6) of Article 19 of the Constitution of India. The unaided institutions compared to the aided institutions will have more autonomy to run the institutions. However, in the matter of non- E professional institutions, the autonomy is absolute which is not the case in professional institutions.

The right to establish and administer an institution comprises of the right:

F (a) to admit stl!dents; (b) to set up a reasonable fee structure; (c) to constitute a governing body; . (d) to appoint staff (teaching and non-teaching); and G (e) to take action if there is dereliction of duty on the part of any employees.

As regards fee structure, it was. held that the fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appoint~ent or nominating H

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students for admissions would be unacceptable restrictions. Although an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings. It is important to note that the essential ingredients of the management of the private institution include the admission of students and recruiting staff, and the quantum of fee that is to be charged.

An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of studies are usually taught by teachers who have to be recruited as per qualifications that may be pr-escribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in th~ form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government.

Since the object of setting up of an educational institution is charitable p in nature, capitation fee and profiteering cannot be allowed to be indulged in:

(a) although the institutions may generate a reasonable revenue surplus for the purpose of development of education and expansion of the institutions.

(b) For admission in a professional institutions, merit must play an G important role and meritorious candidates should not be treated unfairly or put at a disadvantage by preferences shown to less meritorious but more influential applicants.

Excellence in professional education would require that greater emphasis H

530 SUPREf\1E COURT REPORTS [2003) SUPP. 2 S.C.R.

A be laid on the merit of a student seeking admission ·for which appropriate regulations can be made.

As regards determination of merit, it was stated:

"Merit is usually determined, for .admission to professional and higher B education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificat~ stage followed by the interview, or by a common entra~ce test conducted by the . institution, or in the case of professional colleges, by government agencies." ·

C Educational institutions, l}.owever, cannot grant admission on their whims and fancies and must follow some identifiable or reasonable methodology of admitting the stude_nt~. Any scheme, rule or regulation that does not give an institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance. t~st,. would be ~n D unreasonable· restriction under Article 19(6), th~mgh appiOpriate guidelines/ · modalities can be prescribed -for holding the entrance test in a fair manner. 0

Even when students are required to be selec;ted on the baiiis of merit, the ultimate decision to grant admission to the· students who have otherwise qualified for the grant admission must be left with the edu~tional institiltion of concerned. However, when thejnstitution rejects.some students; such.rejection E must not. be whimsical or for extraneous reason's.

The princjples governing private unaided. professional colleges were dealt with separately in paragraphs 67, 68 anq 69; the relevC111t portions whereof read thus:

F "It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be 6ome in mind tha,t unaided professional institutions are' entitled to autonomy in theii: administration while, at the sa~e time, they do not forgo or discard the principle of merit. It would, therefore; be penrtissible for the university or the government, at the time of granting recognition, G· to require a pdvate unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting st4dents. This· can 'be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management.out pf tbose students who have G passed the common· entrance test held- _by itself ·or by the State/

ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.) 531

University and have applied to the coll~ge concerned for admission, while th~ rest of the seats may be filled up on the basis of counselling by the state agency. This will incidentally take care of pr -per and backward sections of the society. The prescription of percentage for this purpose has to be done by the government according to_ the local needs and different percentages can be fixed for minority unaided and non-minority unaided _and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz.~ graduation and post graduation non-professional colleges or institutes. In such professional unaided institutions; the Management will have the right to select teachers as per the qualifications and eligibility . conditions laid down by the State/University subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the Management, which would not be entitled to charge a capitation· fee. Appropriate machinery can be devised by the state or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of . ed~cation is permissible. Conditions granting recognition or affiliation can broadly cover academiC and educational matters. including the welfare of students and teachers.

STATUTES OPERATING IN THE FIELD: E The .Parliament in exercise of its power conferred upon it under Entry 66 List I of the Seventh Schedule of the Constitution of India enacted the Medical Council ·of India Act, University Grants Commission Act and All India Council for Technical Education Act. Regulations h~ve also been rramed pursuant to or in furtherance of the regulation making power contained therein. Section lO(l)(i) of the AICTE Act reads as under :-

"IO. Functions of tlie Council. -(I) It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical and management education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may- (a) undertake survey in the various fields of technica.l education, collect data on all related matters and make forecast of the needed growth and development in technical education; H

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A (b) co-ordinate the development of technical education in the country at all levels;

(c) allocate and disburse out of the Fund of the Council such grants on such terms and conditions as it inay think fit to -

(i) technical institutions" B Section 12A of UGC Act is as follows :

"12A. Regulation of fees and prohibition of donations in certain cases.- (I) In this section, -

c (a) "affiliation", together with its grammatical.variations, includes in relation to a college, recognition of such college ·by, association of such college with, and admission of such college to the privileges of, a University; (b) "college" means any institution, whether known as such or by D any other name which provides for a course of study for obtaining any qualification from a university and which,.in accordance with the rules and regulations of such University, js recognized as competent to provide for such coursi;: of study and present students undergoing such course of study for the examination for the award of such qualification; E (c) "prosecution'', in relation to a course of study, includes promotion from one part or stage of the course of study to another part or stage of the course oLstudy; (d) "qualification" means a degree or any other qualification awarded by a. University; F (e) "regulations" means regulations made under this Act; (f) "specified course of study" means a course of study in respect of which regulations of the nature mentioned in sub-section (2) have been made; G (g) "student" includes a person seeking admission as a student;

(h) "university" means a university or institution referred to in sub- section (I) of section 22.

(2) Without prejudice to the generality of the provisions of section H 12 if,. having regard to -

p. 533 Copy page pinpoint

(a) the nature of any course of study for obtaining any qualification from any University;

(b) the types of activities in which persons obtaining such qualification are likely to be engaged on the basis of such qualification;

(c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring, so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of c study; and (d) all other relevant factors, the Commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the university or universiti.es concerned, specify by regulations the matters in respect of which fees may be charged, D and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such date as may be specified in the regulations in this behalf, by any college providing for such course of study from, or in i:elation to, any student in connection with his admission to, and prosecution of, such course of study : E Provided that different matters and different scales of fees may be so specified in relation to different universities or different classes of colleges or different areas.

(3) Where regulations of the nature referred to in sub-section (2) F have been made in relation to any course of study, no college providing for such course of study shall -

(a) levy or charge fee in respect of any matter other than a ·matter specifie~ in such regulations;

(b) levy or charge any fees in excess of the scale of fees specified G in such regulations, or

(c) accept, either directly or indirectly, any payment (otherwise than by way of fees) or any donation or gift (whether in cash or kind), from, or in relation to, any student in connection with his admission H

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A to, and prosecution of, such course of study.

(4) If, after making, in relation to a: college providing for a specified course of study, an inquiry in the manner provided by regulations, and after giving such college a reasonable opportunity of being heard, the Commission is satisfied that such college has contravened the B provisions of sub-section (3), the Commission may, with the previous approval of the Central Government, pass an order prohibiting such college ftom presenting any students then undergoing such course of study therein to any university for the award of the qualification concerned.

c (5) The Commission shall forward a copy of the order made by it under sub-section (4) to the university concerned, and on and from the date of receipt by the University of a copy of such order, the affiliation of such college to such university shall, in so far as it relates to the course of study specified in such order, stand terminated and on and from the date of termination of such affiliation and for a D period of three years thereafter affiliation shall not be granted to such college in relation to such or similar course or study by that or any other university.

(6) On the termination of the affiliation ofany college under sub- E section (5), the Commission shall take all such steps as it may consider . ' appropriate for safeguarding the interests of the students concerned.

(7) The provisions of this section and the regulations made for _the purposes of this section shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."

Detailed regulations have been framed under the aforementioned three Acts regulating admission of students, percentage of the minority students to be admitted into non-minority institutions, determination of fee and matters incidental thereto and ancillary therewith. By reason of the said regulations, the State Government, however, have been delegated· with the power to determine the fee structure in respect of professional institutions wherefor requisite guidelines have been issued; pursuant whereto and in furtherance whereof committees have been constituted for the said purpose.

The States of Tamil Nadu, Maharashtra, Karnataka and Andhra Pradesh H enacted statutes prohibiting collection of capitation fee and. regulating

p. 535 Copy page pinpoint

admission in professional colleges. In terms of the provisions of the said A Acts, the management of the professional colleges is prohibited from charging any fee other than fee determined under the said Acts. The right of the minorities under Article 30 of the Constitution, however, stands protected thereby. The respective State Governments enforced the said statutes in respect of self-financing private institutions, minorities or otherwise. They B further issued various Government orders in exercise of their powers under Article 162 of the Constitution of India after the judgment in T.MA. Pai Foundation. The University Grants Commission, the A.I.C.T.E. and the Medical Council of India, issued provisional/ad hoc guidelines covering the same subject purported to be in terms of the provisions of the principal statutes governing the field in the light of the judgment of this Court in T.MA. Pai C Foundation. The State Governments also in terms of the observations made by this Court issued various orders or adopted resolutions providing for enforcement of their reservation policy as also determining the fee structure.

Constitutionality of such Government orders came to be challenged, inter alia, by way of writ petition before the High Courts of Andhra Pradesh, D Karnataka and Kerala. Certain interim orders had been passed therein which are under challenge in several special leave petitions. As noticed hereinbefore, in T.MA. Pai Foundation's case (supra) only orders and directions issued pursuant to Unni Krishnan have been declared unconstitutional.

However, the question with regard to constitutionality or ~herwise of the said statutes, Rules and Regulations had not been exipnined. In partk:ular the parliamentary acts and the regulations framed thereunder have not been referred to. The question as to whether the field with regard to the higher education is covered by the parliamentary legislations or not was not adverted to. The extent and scope of the legislative competence of the Parliament and the State Legislatures within the meaning of Entry 66 of List I and Entry 25 of List III of the Seventh Schedule of the Constitution also had not been adverted to. In the aforementioned premise, one of us, Variava, J. stated :

"393. The learned Chief Justice has repeatedly emphasised that capitation fees cannot be charged and that there must be no profiteering. We clarify that the authorities concerned will always be entitled to prevent by enactment or by regulations the charging of exorbitant fees or capitation fees. There are many such enactments already in force. We have not gone into the validity or otherwise of any such enactment. No arguments regarding the validity of any' such H

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A enactment have been submitted before us. Thus those enactments will not be deemed to have been set aside by this judgment. Of course now by virtue of this judgment the fee structure fixed under any regulation or enactment will have to be reworked so as to enable educational institutions not only to break even but also to generate some surplus for future development/expansion and to provide for free seats."

Although the parties have raised their contentions as regards constitutionality of some of the provisions of the aforementioned statutes, keeping in.view the limited scope for which this Constitution Bench has been constituted, we refrain ourselves from going thereinto. This exercise has to be undertaken in appropriate cases.

D ARE THE RIGHTS UNDER ARTI CLE 19(1 )(g) AND ARTICLE 30( I) OF THE CONSTITUTION OF INDIA EQUAL ? :

T.MA. Pai Foundation (supra) for the first time brought into existence the concept of education as an 'occupation'. In no uncertain terms, it was held that all citizens oflndia irrespective of the fact as to whether they belong E to a minority group or not have a right to establish and run an institution. A right conferred on a citizen of India in terms of Article 19(1)(g) of the Constitution of India indisputably is subject to reasonable restrictions, which may ~e imirsed in public interest under clause (6) thereof. The makers of the Constitution no doubt while enacting Article 30 of the Constitution of India intended to confer on the minorities the same right as that of the majority. But, F does it mean that for all intent and purport no further or additional right exists in the minority community is the question.

Drawing our attention to paragraphs 54, 65, 138~ 139, 224-229 of the judgment, Mr. Venugopal and Mr. Vaidyanathan, the learned senior counsel for the respondents would submit that the minority right is equal to that of G the majority and not vice-versa. According to learned counsel, if it is to be held that the minority exercises a higher right than the majority, the same would be counter productive to the Indian ethos. Right to admit students of their own choice, the learned counsel would contend, in a professional college, therefore, is not absolute. H On the other hand, the learned counsel appearing on behalf of the Writ Petitioners-Applicant would contend that the discussions in T.M.A. Pai 1 Foundation centered round the question as to whether the right conferred

ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. :;INHA, J] 537 upon minorities under Article 30 was subject to clause (2) of Article 29 or not. A Our attention was drawn to paragraphs 31 to 45 of the judgment and in particular para 31, 45 and 459 of the judgment. The learned counsel would submit that while considering the question as to whether the Scheme framed by this Court in Unni Krishnan was reasonable, it was categorically held that the provisions contained therein to the extent that 50% seats would be free B seats and 50% thereof would be payment seats and all examinations would be conducted through Common Entrance Test (CET) and the ceiling on fees was declared unconstitutional as being violative of clause '6) ,,[Article 19 of the Constitution of India. It was submitted that in the event if it be held that the said provisions are ultra vires for ~he purpose of clause (f..) of the Article 19 the same consequences must ensue for construction of Article 30 of C Constitution of India. It was contended that having· regard to the majority decision of this Court, if it is held, having regard to clause (2) of Article 29 of the Constitution that in the event an aid is granted to a professional institution, they will be subject to the same restrictions which any other self- financed scheme institution would face in terms of clause (6) of Article 19 of the Constitution of India then no purpose can be held to have been achieved by the Constitution makers in enacting clause (I) of Article 30 of the Constitution of India.

A citizen of India whether belonging to a minority community or not will have the right under Article 19. A person belonging to a minority community apart from 19(l)(g) has a right to establish, administer institution of their choice. In T.MA. Pai Foundation this Court held that minority institutions can establish and run a professional institution in terms of clause (I) of Article 30 of the Constitution having regard to the fact that they have a right to establish an institution of their own choice. F A citizen of India with a view to establish an unaided professional institution exercises his right of occupation. To the said extent admittedly the right of the minority and non-minority is equal. Article 30, however, seeks further to protect the minorities so that they may admit students in the institution established by them. This privilege is not extended to the non- minority community. They also have a right to establish an institution and G admit students of their own choice in terms of Para 68 of the judgment in T.M.A. Pai but they do not have any right of admitting students belonging to a particular locality or speaking a particular language as such institutions are not meant to serve the said purpose. But the same for all intent and purport having regard to the question involved in the matter may not be of H

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A much consequence as would appear from the discussions made hereinafter.

The Bench held:

"36. The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, B inter alia, of selection of students and fixation o( fees. Affiliation and recognition has to be available t<1 every institution .that fulfills the conditions for grant of such affiliation and. recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely c destroys the institutional autonomy and the very objective of establishment of the institution.

The Scheme framed in Unni Krishnan was held to be unconstitutional by this Court and only· in that context it was observed:

D "38. The scheme in Unni Krishnan 's case has the effect of nationalizing education in respect of important features, viz., the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the· right of administration of a private unaided educational institution can neither be called fair nor reasonable. Even in the decision i!l Unni Krishnan 's case, it has been observed by Jeevan Reddy, J., at page 749, para 194, as follows: _

"The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand - particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian G State it has no monopoly therein. Private educational institutions - including minority educational institutions - too have a role to play."

However, it was also noticed :

H "138. As we look at it, Article 30(1) is a sort of guarantee or assurance

ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, JV 539 to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate . against such minorities with regard to the establishment and administration of educational institutions vis-a-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St. Xavier's College case (1975) l SCR 173, at page 192, that

"the whole object of conferring the right on minorities under Article D 30 is to ensure that there will be equality between the majority afl!l the minority. If the minorities do not have such special protection, they will be dented equality. "

In other words, the essence of Article 30( l) is to ensure equal treatment between the majority .and the minority irtstitutions. No one type or E category of institution should be disfavoured or, for that platter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority" institutions must be allowed to do what the non-minority institutions are permitted to ~. . F

139. Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g., method of recruitment of teachers, charging of fees and admission of students. They will have to comply with the conditions of recognition, ·which G cannot be such as· to whittle down the right under Article 30."

The findings of this Court in the aforementioned paragraphs must be given their full effect. Although the width and scope of Article 19(\)(g) and Article 30 are different, but they seek to fulfill the same purpose. A minority H

p. 540 Copy page pinpoint

A institution has no additional rights but it enjoys a constitutional protection to admit students belonging to the minority communities whether based on religion or language. All regulations in this behalf must satisfy the requirement of Article 30. The doctrine of equality shall further apply once the institutions have been established.

B We may notice that this Court in Ahmedabad St. Xavier's College (supra) stated:

"In order to attain that object, two things were regarded as particularly necessary and have formed the subject of provisions in these treaties.

c The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics. D These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority ifthe latter were deprived of its own institutions and were consequently compelled to renounce that which constitutes the very essence of its being a minority"." E The purport and object for which Article 30(1) was inserted in the Constitution cannot be lost sight of. Judgments of Khare, J. (as the CJI then was) and Variava, J. are replete with the debates in the constituent assembly.

The argument that the management of the minority institutions cannot F be taken over, whereas that of the non-minority institutions can be, is misplaced and in any event irrelevant. This Court in no unmistakable terms held that the State cannot take any step by way of imposing conditions at the time of grant of recognition which would amount to nationalization of education. This applies to both minorities and non-minorities. G The Constitution prohibits acquisition of property of any citizen of India except in accordance .with law. Any action taken on the part of the State to take over the property of minority institution must also receive legal sanction through an act of a legislation and not otherwise.

H It will not be a correct proposition of law, on the face of Clause I A of

p. 541 Copy page pinpoint

Article 30 of the Constitution to contend that the properties of the minority institutions cannot be taken over at all. The only right which they have is to get reasonable compensation so as to enable them to establish another ,. educational institution at some other place. It is not necessary to raise hypothetical question to drive home a point which is of not much consequence. As and when laws are made, their constitutionality will have to be tested on their own merit. Preemptive answers should not be given on hypothetical questions.

Furthermore, in the event, running of a minority institution is found to be against national interest or permissible limits of regulations, it can be taken over with a view to maintain morality, public order, health, national interest. C Similar such considerations would empower the State to close the institution or take over the management thereof, although the same may. be done only in extreme cases.

In case of gross mismanagement and violation of the conditions of essentiality certificate also, the State may be held to have the power to close down the institution.

The right of the minority institution to admit their own students, in ., other words, is only by way of protection of the minority interest so that they may get the benefit of the equality clause. Such a protection should not be confused to be a right. This is evident not only from paras 138 and 139 of the judgment but also from para 371, (opinion of Ruma Pal, J.)

The statement of law contained in paras 138 and 139 is absolutely clear and unambiguous and no exception can be taken thereto. The doubt, if any, that the minorities have a higher right in terms of Article 30( I) of the Constitution of India may be dispelled in clearest terms inasmuch as the right of the F

- minorities and non-minorities is equal. Only certain additional protection has been conferred under Article 30( I) of the Constitution of India to bring the minorities on the same platform as that of non-minorities as regards the right to establish and administer an educational institution for the purpose of imparting education to the members of their own community whether based G on religion or language.

Demographically every Indian can become a minority having regard to the fact that even Hindus are in minority in Jammu & Kashmir, Punjab and some other States in North-East of India. Even Hindi speaking people except northern India are in minority in other parts of the country. H

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A The question, thus, has to be considered keeping in view the fact that every Indian may be a minority, either based on religion or language, in one part of the country or the other. The right of a citizen as a minority in one part of the country cannot be higher than his right as a member of majority in another part of the country.

B Furthermore, one of us t Variava, J.) speaking for himself and Bhan, J. clearly said :

"Article 30 merely protects the right of the minority to establish and administer an educational institution, i.e. to have the same rights· as those enjoyed by majority, Article 30 gives no right to receive State c aid. It is for the institution to decide whether it wants to receive aid. If it decides to take State aid then Article 3~(2) merely provides that the State will not discriminate against, it. When State, whilst giving aid, asks the minority educational institute to comply with a constitutional mandate, it can hardly be said 'that the State is D discriminating against that institute. The State is bound to ensure that all educational institutes, whe_ther majority or minority, comply with the constitutional mandate. "

(Emphasis applied)

E The right of the minorities in the matter of admission of students can also be restrict~d like the non-minorities. T.MA. Pai says so.

The professional institutions indisputably are governed by statutes like MCI Act, AICTE Act and the UGC Act. In terms the provisions of the statutes and regulations framed thereunder the private professional institutions F are required to maintain certain standards. They cannot be deviated or departed from. In the context of giving admissions to the meritorious students, it

·- I cannot ~e said that the students belonging to the minority community shall j

be admitted without reference to merit.

The courts, it is relevant to place on record, would not encourage G ·establishment of pseudo minor~ty institutions imparting professional courses. The statutory rules and regulatLons, thus, must be equally applied to all the professional institutions whether aided or unaided whether run by a minority or non-minority. In the matter of maintenance of standard, these institutions must be equally treated.

H If it be held that the minority institutions can admit all the students

ISLAMIC ACADEMY OF EDUCATION. v. STATE (S.B SINHA, .I.) 543

belonging to their own community whereas the non-minority institutions A cannot, the same, in my opinion, would amount to re-writing the judgment.

The arguments which have been advan .. ed in this behalf, if accepted, would clearly lead to the conclusion that the majority decision in TMA Pai Foundation is wrong. B Even while laying down the law in tenns of Articles 15(3), 15(4), 16(1) and 16(4), the object is to attain equality. Reverse discrimination even in the majority judgment has been frowned upon. Can we say that the right of the minorities is higher than the other disadvantaged group? Possibly not having regard to Part III of the Constitution. c It is interesting to note that recently in Jennifer Gratz and Patrick Hamacher v. Lee Bollinger decided on 23rd June, 2003 by US Supreme Court the guidelines providing for selection method under which every applicant from an under represented racial or ethnic minority groups was to be automatically awarded 20 points out of I 00 pointsneeded to guarantee admission, was struck down as being violative of equality protection clause. It was observed:

"The very nature of a college's permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants' chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell's plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its "holistic review," Grutter, F post, at 25; the distinction does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis of all the various merits their applications may disclose."

Justice Ginsburg, however, speaking for himself and Justice Souter in G their minority opinion stated:

"Our jurisprudence ranks race a "suspect" category, "not because (race) is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the H

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A purpose of maintaining racial inequality." Norwalk Core Vs. Norwalk Redevelopment Agency, 395 F. 2d 920, 931-932 (CA2 1968) (footnote omitted). But where race is considered "for the pi.;rpose of achieving equality," id., at 932, no automatic proscription is in order. For as insightfully explained, "the Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a B classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. "United States v. Jefferson County Bd. Of Ed., 372 F.2d 836, 876 (CA5 c 1966)(Wisdom,J.): see Wechsler, The Nationalization of Civil Liberties and Civil Rights Supp. To 12 Tex.Q.10,23(1968) (Brown may be seen as disallowing racial classifications _that "imply an invidious assessment" while allowing such classifications when "not invidious in implication" but advanced to "correct inequalities"). Contemporary human rights documents draw just this line; thex distinguish between D policies of oppression and measures designed to accelerate de facto equality. See Grutter, post, at l (Ginsburg, J. concurring)(citing the " United Nations - initiated Conventions on the Elimination of All Forms · of Racial Discrimination and on the Elimination of All Forms of Discrimination against Women)." E · 1t is not necessary to express any opinion on this judgment one way or the other but it is referred to as the same points out two different viewpoints. But one thing is clear; ultimate constitutional goal is to attain equality.

Human history would show that struggle of man for democratic polity F was inspired by a desire to achieve equality among them. Indeed, some of the world Constitutions in their preamble abhor inequality and proclaim to achieve equality in all respects. Whatever may be the power and jurisdiction of the State and State authorities to make a special provision in favour of backward and downtrodden, when the Court tests the reasonableness of such distincti~e State action, it should be done by posing a question whether such State G action to ameliorate social, economic and political poverty; whatever be the reason, delays the journey towards proclaimed goal of equality. If a measure tends to perpetuate inequality and makes the goal of equality a mirage, such measure should not receive the approval of the Court. The Court, in such circumstances, has to mould the relief by indicating what would be the reasonable measure or action which furthers the object of achieving equality.

ISLAMIC ACADEMY OF EDUCATION. v. STATE (S.B. SINHA, J.] 545

The concept of equality is not a doctrinaire approach. It is a binding thread which runs through the entire constitutional text. An affirmative action may, therefore, be constitutionally valid by reason of Articles 15(4) and 16(4) and various directive principles of State policy, but the Court cannot ignore the constitutional morality which embraces in itself the doctrine of equality. It would be constitutionally immoral to perpetuate inequality among majority people of the country in the guise of protecting the constitutional rights pf . minorities and constitutional rights of backward and downtrodden. All the rights of these groups are part of right to social development which cannot render national interest and public interest subservient to right of an individual or right of community.

In the event the minontles are not granted the right to establish c educational institutions of their choice and admit students of their community, the right of equality would lose all its purpose and relevance. It is in that sense the rights of the majority and minority must be held to be equal. In my opinion the provisions of Articles 19( l )(g), 29(2) and 30 must be so construed. D REASONABLE REGULATIONS:

So far as institutions imparting professional educatinn are concerned, having regard to the public interest, they are bound to maintain excellence in standard of education. To that extent, there cannot be any compromise and the State would be entitled to impose restrictions and make regulations both E in terms of Article 19( I )(g) and Article 30 of the Constitution of India. The width of the rights and limitations thereof of unaided institutions whether run by a majority or a minority must conform to the maintenance of excellence. With a view to achieve the said goal indisputably the regulations can be made by the State. F The right to administer does not amount to right to maladminister and the right is not free from regulation. The regulatory measures are necessary for ensuring orderly, efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions. G EXTENT OF REGULATIONS:

Article 30(1) of the Constitution does not con for an absolute right. The exercise of such right is subject to permissible State regulations with an eye on preventing mat-administration. Broadly stated there are "permissible H

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A regulations" and "impermissible regulations".

Some of the permissible regulations/restrictions governiPg enjoyment of Article 30( 1) of the Constitution are -

(i) Guidelines for the efficiency and excellence of educational standards [See Sidhajbhai v. State of Gujarat, [1963] 3 SCR 837; State of Kera/a v. Mother Provincial, [ 1970] 2 SCC 2079; All Saints High School v. Government of Andhra Prac/esh, [ 1980] 2 sec 478]; (ii) Regulations ensuring the security of the services of the teachers or other employees [See In Re Kera/a Education Bill, and All Saints High School v. Government of A.P. (supra)]; (iii) Introduction of an outside authority or controlling voice in the matter ·of service conditions of employees [See All Saints High School v. Government of A.P. (supra)]; D (iv) Framing Rules and Regulations governing the conditions of service of teachers and employees and their pay and allowances [See State of Kera/av. Mother Provincial, (supra) and All Saints High School v. Government of A.P., (supra)]; (v) Appointing a high official with authority and guidance to oversee E that Rules regarding conditions of service are not violated, but, however such an authority should not be given blanket, uncanalised and arbitrary powers [See All Saints High School v. Government of Andhra Pradesh (supra)]; (vi) Prescribing courses of study or syllabi or the nature of books F [See State of Kera/av. Mother Provincial (supra) and All Saints High School v. Government of A.P., (supra)]; and (vii) Regulation in the interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like [See Sidhajbhai v. State of Gujarat (supra)] G Subject to what has been stated in T.M.A. Pai Foundation, some of the impermissible regulations are :

(i) Refusal to affiliation without sufficient reasons [All Saints High School v. Government of A.P. (supra)]; H (ii) Such conditions as would completely destroy the autonomous

p. 547 Copy page pinpoint

administration of the educational institution [All Saints High A School v. Government of A.P., (supra)];

(iii) Introduction of an outside authority either directly or through its nominees in the governing body or the managing committee of minority institution to conduct the affairs of the institution [All Saints High School v. Government of A.P., (supra)]; B (iv) Provision of an appeal or revision against an order of dismissal or removal by an aggrieved member of staff or provisions for Arbitral Tribunal [See St. Xaviers College v. State of Gujarat (supra), Lilly Kurian v. S.R. Lewina, [1979] 2 SCC 124 and All Saints High School v. Government of A.P. (supra)]; C WHETHER THE STATE CAN IMPOSE /IBSERVATION ON A SELF FINANCED INSTITUTION JN PURPORTED EXERCISE OF ITS RIGHT TO ENFORCE THE DIRECTIVE PRINCIPLES OF STATE POLICY

The purported right of the States to prescribe a certain percentage of D seats for their nominees including those belonging to the reserved category candidates is said to have arisen from:

(i) The State grants essentiality certificate in terms whereof in the event of closure· of the institution the State undertakes to take over. E (ii) The States have a duty to enforce Directive Principles of State Policy in terms of Article 38, 41, 45 and 47 of the Constitution of India.

Directive Principles of State Policy contained in Part IV of the Constitution of India are not justiciable. F Equality clauses contained in Part III of the Constitution are to be found in Articles 14, 15 and 16. Whereas Article 14 mandates equality amongst all sections of people, Articles 15 and 16 deal with the matters specified therein namely, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth and equality of opportunities in matters of public employment. G We are concerned in this case with Article 15. Clauses (3) and (4) of Article 15 of the Constitution of India read thus:

"(3) Nothing in this article shall prevent the State from making any special provision for women and children." H

548 SUPREME COURT REPORTS l2003] SUPP. 2 S.C.R.

A "(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes."

The said provisions were inserted by the Constitution First Amendment B Act, 1951. There, thus, exists provision for an exception to Articles 14 and 15 as also Clause (2) of Article 29 of the Constitution of India. The State has also a right to make some reservation for women and children in tenns of Clause (3) of Article I 5 of the Constitution of India. Clauses (3) and (4) of Article 15 provide an exception to the general rule. A special provision either for women and children in terms of Ciause (3) or for advancement of social C and backward class of citizens of Scheduled Castes and Scheduled Tribes in terms of clause (4) must be made by the State in terms of a legislation or an executive order. Such a legislation or executive order would be in relation to the State action. The said provisions cannot be extended by way of imposition of restriction or regulation so as to impair the right of a citizen of India under D Article 19( l)(g) or Article 30 thereof. The question which may arise is as to whether the State can mandate upon an industry or a business house (for example) to provide job to a person belonging to a reserve category? If not, the necessary corollary would be that such a restriction or regulation cannot be imposed on a citizen carrying on an 'occupation'. The right of a citizen in tenns of Article 19(1 )(g) of the Constitution whether 'to practise any profession' or 'to carry on any business/occupation' must be the same or similar. The reasonable restrictions in terms of Clause (6) must be on the exercise of a right conferred by the said sub-clause. Although reasonable restrictions can be imposed on exercise of such right in terms of the constitutional scheme, the State cannot impose its own duties and obligations upon a citizen.

Furthermore, Clauses (3) and (4) of Article 15 are enabling provisions. The States were to take appropriate steps required therefor within the bounds, that is, limited only for uplifting the weaker sections and not for conferring upon them a preferential right. Reservation can be made inter alia by way of compelling State necessity. In any event the executive policy of the State cannot be thrust upon the citizens without any valid legislation

At this juncture, it may be useful to refer to the decisions of this Court in Re: the Kera/a Education Bill, 1957 (supra) wherein S.R. Das, J speaking for the Constitution Bench held in the following terms:

H "Learned counsel for the State of Kerala referred us to the directive

ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA, J.) 549

principles contained in Art. 45 which requires the State to endeavour to provide, within a period often years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years and with considerable warmth of feeling and indignation maintained that no minorities should be permitted to stand in the way of the implementation of the sacred duty cast upon the State of giving free and compulsory primary education to the children of the country so as to bring them up properly and to make them fit for discharging the duties and responsibilities of good citizens. To pamper to the selfish claims of these minorities is, according to learned counsel, to set back the hands of the clock of progress. Should these minorities, asks learned counsel, be pennitted to perpetuate the sectarian fragmentation of the people and to keep them perpetually segregated in separate and isolated cultural enclaves and thereby retard the unity of the nation ? Learned counsel for the minority institutions were equally eloquent as to the sacred obligation of the State towards the minority communities. It is not for this Court to question the wisdom of the supreme law of the land. We the people of India have given unto ourselves the Constitution which is not for any particular community or section but for all. Its provisions are intended to protect all, minority as well as the majority communities. There can be no manner of doubt that our Constitution has guaranteed certain cherished rights of the minorities concerning their language, culture and religion. These concessions must have been made to them for good and valid reasons. Article 45, no doubt, requires the State to provide for free and compulsory education for all children, but there is nothing to prevent the State from discharging that solemn obligation through Government and aided schools and Art. 45 does not require that obligation to be discharged at the expense of the minority communities. So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own. Throughout the ages endless inundations of men of diverse creeds, cultures and races - G Aryans and non-Aryans, Dravidians and Chinese, Scythians, Huns, Pathans and Mughals - have come to this ancient land from distant regions and climes. India has welcomed them all. They have met and gathered, given and taken and got mingled, merged and lost in one body. India's tradition has thus been epitomised in the following noble lines : H

p. 550 Copy page pinpoint

A "None shall be turned away From the shore of this vast sea of humanity

That is India" (Poems by Rabindranath Tagore)

.Indeed India has sent out to the world her message of goodwill B enshrined and proclaimed in our National Anthem :

"Day and night, thy voice goes out from

land to land,

calling Hindus, Buddhists, Sikhs and Jains c round thy throne and Parsees, Mussalmans and Christians.

Offerings are brought to thy shrine b~

the East and the West

D to be woven in a garland of love.

Thou bringest the hearts of all peoples

into the hannony of one life, Thou Dispenser of India's destiny,

Victory, Victory, Victory to thee." (Rabindranath Tagore) E It is thus that the genius of India has been able to find unity in diversity by assimilating the best of all creeds and cultures. OurConstitution accordingly recognises our sacred obligations to the minorities. Looking at the rights guaranteed to the minorities by our Constitution from the angle of vision indicated above, we are of opinion that cl. 7 (except sub-els. I and 3 which apply only to aided schools) and cl. 10 may well be regarded as pennissible regulation which the State is entitled to impose as a condition for according its -recognition to any educational institution but that cl. 20 which has been extended by cl. 3(5) to newly established recognised schools, in so far as it affects educational institutions established and administered by minority communities, is violative of Art. 30( I)."

Mathew, J. speaking for a 9-Judge Bench of this Court in Ahmedabad St. Xavier's College Society (supra) laid down that the State necessity cannot be foisted upon the minority. It was held:

H "We find it impossible to subscribe to the proposition that State

p. 551 Copy page pinpoint

necessity is the criterion for deciding whether a regulation imposed on an educational institution takes away or abridges the right under Article 30(1). If a legislature can impose any regulation which it think necessary to protect what in its view is in the interest of the State or society, sounds paradoxical that a right which the Constitution makers wanted to be absolute can be subjected to regulations which need only satisfy the nebulous and elastic test of State necessity. The very purpose of incorporating this right in Part III of the Constitution in absolute terms in marked contrast with the o~her fundamental rights was to withdraw it from the reach of the majority. To subject the right today to regulations dictated by the protean concept of state necessity as conceived by the majority would be to subvert the very purpose for which the right was given."

This Court in Sunee/ Jat/ey and Ors. v. State of Haryana and Ors., [ 1984] 4 sec 296 held that reservations for students coming from rural areas would be bad in law.

LOCAL NEEDS : D

It is difficult to define precisely what would constitute "local needs". Mr. Venugopal refers to the Medical Council of India Regulations, 1999 for the purpose of showing the requirements necessary to be considered by the State Government for the grant of essentiality certificate. The State Government E alone would be in a position to determine local needs which may be based, for instance, in the case of doctors, on the ratio of doctors to the population of the State. Other factors such as the percentage of the relevant minority in the State, the number of minority professional colleges belonging to that particular linguistic/religious minority in the State, percentage of poorer and backward sections in the State, total number of professional colleges therein, contends Mr. Venugopal, would be relevant factors. This may be so but similarly there are many more factors that would contribute to local needs. The criteria laid down in MCI Regulations no doubt provide for some guidelines for the purpose of determination of local ne~ds but the same cannot be said to be exhaustive. Local needs would vary from State to State. Even development of a backward area may be a local need. Absence of good educational institutions in particular area may also be a local need. The State may, in pursuit of its policy for the development of the people, consider it expedient to encourage entrepreneurs for establishing educational institutions in remote and backward areas for the benefit of the local people. Local needs, therefore, cannot be defined only witn reference to the State as a unit. For good reasons H

p. 552 Copy page pinpoint

A the State may not like to establish professional colleges or institutions only in their capitals.

ESSENTIALITY CERTIFICATE:

Although local needs, thus, may have to be determined keeping in view B the factors enumerated therein but it must also be noticed that no essentiality certificate is required to be given by the State in relation to engineering and other professional colleges. While laying down the law based on interpretation of a Constitution as well as a judgment, we cannot take a myopic view and hold.that 'local needs' must be referable to the medical education. Furthermore, it may be difficult to give a restrictive meaning to the expression 'local needs' C i.e. keeping the same confined to the area where the educational institution is sought to be established inasmuch as the right of minority extends to the entire State and, thus, the local needs may also have direct nexus having regard to the need of the State.

D In State of Maharashtra v. Indian Medical Association and Ors., [2002] I SCC 580, this Court did not decide the question as to whether the expression "technical education" occurring in Article 371 (2)( c) of the Constitution is distinct and different from "medical education". The questions which arise for consideration herein did not arise there.

E In Indian Medical Association case (supra), this Court was concerned with Maharashtra University of Health Sciences Act, 1998 wherein the question revolved round as to whether the essentiality certificate would be necessary for the State to establish a Government-run medical college.

We cannot read the said judgment out of context.

F INTERPRETATION OF A JUDGMENT : A judgment, it is trite, is not to be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and G reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. [See Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Ors. v. N.C. Budharaj (Deceased) By LRs. and Ors., (200 I] 2 SCC 721.

In Padma Sundara Rao (Dead) and Ors. v. State of TN. and Ors., H [20021 3 sec 533, it is stated:

ISLAMIC ACADEMY OF EDUCATION. v. STATE (V.N. KHARE, CJ.] 553 "There is always peril in treating the words of a speech or judgment A as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board, ((1972) 2 WLR 537: 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) l All ER 749 (HL)]). Circumstantial flexibility, one additional or different fact may make a B world of difference between conclusions in two cases."

[See also Haryana Financial Corporation v. Jagadamba Oil Mills and Anr., [2002] 3 SCC 496].

In General Electric Co. v. Renusagar Power Co., [1987] 4 SCC 137, it was held:

"As often enough pointed out by us, words and expressions used in a judgment are not to be construed in the same manner as statutes or as words and expressions defined in statutes. We do not have any doubt that when the words "adjudication of the merits of the controversy in the suit" were used by this Court in State of U.P. v. Janki Saran Kai/ash Chandra, [ 197 4] I SCR 31 : [ 1973] 2 SCC 96 : AIR (1973) SC 2071, the words were not used to take in every adjudication which brought to an end the proceeding before the court in whatever manner but were meant to cover only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication of such objections cannot be termed as adjudication of the merits of the controversy in the suit. As we said earlier, a broad view has to be taken of the principles involved and narrow and technical interpretation which tends to defeat the object of the legislation must be avoided."

In Rajeswar Prasad Mishra v. the State of West Bengal and Another reported in AIR ( 1965) SC 1887, it was held: G "No doubt, the law declared by this Court binds Courts in India but it should always be remembered that this Court does not enact."

(See also Mis. Amar Nath Om Prakash and Ors. v. State of Punjab and Ors., [ 1985] 1 SCC 345 and Hameed Joharan (Dead) and Ors. v. Abdul Salam H

p. 554 Copy page pinpoint

A (Dead) By LRs. and Ors., [2001] 7 SCC 573].

It will not, therefore, be correct to contend, as ha_~ been contended by ~fr. Nariman, that answers to the questions would be the ratio to a judgment. The answers to the questions are merely conclusions. They have to be interpreted, in a case of doubt or \dispute with the reasons assigned in B support thereof in the body of the \judgment, wherefor, it would be essential to read the other paragraphs of the judgment also. It is also permissible for this purpose (albeit only in certain cases and if there exist strong and cogent reasons) to look to the pleadings of the parties.

In Keshav Chandra Joshi and Ors. v. Union of India and Ors., [ 1992] C Supp. 1 SCC 272, this Court when faced with difficulties where specific guidelines had been laid down for determination of seniority in Direct Recruits Class II Engineering Officers' Association v. State of Maharashtra, [1990] 2 sec 715 held that the conclusions have to be read along with the discussions and the reasons given in the body of the judgment. D It is further trite that a decision is an authority for what it decides and not what can be logically deduced therefrom. [See Union of India v. Chajju Ram, [2003] 5 sec 568.

The judgment of this Court in T.MA. Pai Foundation (supra) will, E therefore, have to be construed or to be interpreted on the aforementioned principles. The Court cannot read some sentences from here and there to find out the intent and purport of the decision by not only considering what has been said therein but the text and context in which it was said. For the said purpose the Court may also consider the constitutional or relevant statut•lry provisions vis-a-vis its earlier decisions on which reliance has been placed. F FEE STRUCTURE:

On a bare reading of the relevant paragraphs of the judgment some of which are referred to hereinbefore, it is beyond any doubt that in the matter of determination of the fee structure the unaided institutions exercise a greater autonomy. They, like any other citizens carrying on an occupation, must be held to be entitled to a reasonable surplus for development of education and expansion of the institution. Reasonable surplus doctrine can be given effect to only if the institutions make profits out of their investments. As stated in paragraph 56, economic forces have a role to play. They, thus, indisputably have to plan their investment and expenditure in such a manner that they may

ISLAMIC ACADEMY OF EDUCATION. v. STATE [S.B. SINHA. J) 555 generate some amount of profit. What is forbidden is (a) capitation fee and A (b) profiteering.

However the different State Governments have prescribed different amounts by way of fees as would appear from the following:- State Fee B Andhra Pradesh Rs. 22,000 per annum Delhi Rs. 45,000 per annum Gujarat Govt. Seats -Rs. 21,000

Management Seats - Rs. 50,000 c Haryana Rs. 40,000 per annum Kamataka Rs. 4 7,590/- For non-Kamataka Rs. 75,590

Kerala Rs. 37,100 Tamil Nadu Management seat - Rs. 30,000 D

Merit student - Rs. 25,000 Uttar Pradesh Rs. 45,000 per annum

The expression 'Capitation fee' does not have any fixed meaning. The E Legislatures of some of the States, however, have defined capitation fee. We may notice that in the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992, Capitation fee has been defined as:"capitation fee means any amount by whatever name called, paid or collected directly or indirectly in excess of the fee prescribed under Section 4;" F Section 4 of the said Act states that any amount collected in excess of the fee so prescribed is prohibited in the following tenns:

"Regulation of fee, etc. - (l) Notwithstanding anything contained in any other law for the time being in force, the Government, by notification, regulate the tuition fee or any other fee or deposit that G may be received or collected by any educational institution or class or classes of such educational institutions in respect of any or all class or classes of students:

Provided that before issuing a notification under this sub-section, the H