JUDGEMENT DATED 15-7-2004 SGRD INSTITUTION AMRITSAR

CHAIRMAN, COMMITTEE FOR OVERSEEING THE ENTRANCE TEST CONDUCTED BY ASSOCIATION OF PRIVATE PROFESSIONAL COLLEGE, AT CHANDIGARH.

Sub : REPRESENTATION FILED BY ASSOCIATION OF UNAIDED SIKH MINORITY MEDICAL AND DENTAL INSTITUTIONS.

JUDGEMENT

Representations were received allegedly from Association of Unaided Sikh Minority Medical and Dental Institutions (Punjab). Para 7 of the representation No. 172 dated 10.6.2004 reads thus :-

“The Hon’ble Supreme Court has clearly provided that the private institutions are free to conduct the entrance test for their admission by combining together to form an association. Since all other private medical/ dental, etc. institutions in the Punjab State have opted for the PMET thus leaving behind only two of our institutions, we have formulated an association named Association of Unaided Sikh Minority Medical and Dental Institutions (Punjab State) as per Supreme Court judgment and opted not to join other institutes. Similar associations have also been formed in many other States of the country like Tamilnadu, Bihar and U.P. etc. which are similar to our position and have conducted their competitive tests for admission to these institutions for this session.”

2. The Admission Supervision Committee examined the representation and rejected the same vide Order dated June 15, 2004. Therefore, another representation was received praying that the Association be heard before passing the order. It was also stated therein that similarly situated institutions were given hearing by the State Government but the Association was not heard. On receipt of this representation the matter was placed before the Committee. The Committee heard the representations on June 28, 2004 and passed the following interim order :-

“The representation allegedly filed by the Association of Unaided Sikh Minority Medical and Dental Institutions (Punjab) dated June 10, 2004 was examined in the meeting of the Admission Committee, held on June 15, 2004. In the representation, it was primarily urged that the Association be allowed to conduct Entrance Test for filling the Management Quota Seats. The Committee after examining the matter in the light of Islamic Academy of Education Vs. State of Karnataka, 2003 (6) SCC 697, rejected the same by order dated June 15, 2004. Dr. R.P. Bhamba, who is otherwise a Member of the Fee Admission Committee was specially invited for that meeting. The State Government had issued Notification dated June 17, 2004 for conduct of PMET 2004 for Admission to MBBS/BDS/BAMS/BHMS courses in Govt. and Private Medical Institutions in the State of Punjab. It is to be conducted by the Baba Farid University of Health & Sciences, Faridkot on July 25, 2004.

The Association has filed second representation interalia stating that the Admission Committee dismissed their representation without affording them an opportunity of hearing and that the State Government issued the Notification without affording them an opportunity to represent their cause although similarly situated institutions were given hearing. The Member Secretary brought this representation to the notice of the Chairman who directed that the 2nd representation be placed before the Committee. It is in these circumstances that the Admission Committee meeting was convened for June 28, 2004. The Association was duly informed. The arguments on behalf of the Association were addressed by Bibi Jagir Kaur, Mr. M.S. Grewal, former Minister Minister and the Director/ Principal of the Medical Colleges, on behalf of the Association. It was submitted thus:

i) The Association be allowed to hold its own Entrance test.

ii) The NRI quota having been revived, should not be counted in the Management Quota Seats.

iii) The Ratio of seats sharing between the Government and the Management of the Minority Institutions 50:50 is unjust. The State Government has adopted a common pattern of seat sharing with the Aided, unaided private Institutions and Self Financed Minority Institutions. The Minority institutions have absolute right to fill in the total seats allocated for the institution.

iv) The term “Sikh” has not been defined in the notification. Who and how will it be determined to fill in the Sikh Minority Seats, as a corollary to this, it calls for examination as to how the Status of Minority institutions was accorded by the State?

v) The Fee structure fixed in the notification is arbitrary.

We propose to deal with the Ist question as to whether the Association can be allowed to hold their own entrance test.

It is interalia urged at the hearing that Shri Guru Ram Dass Institute of Medical Science and Research, Amritsar and Shri Guru Ram Dass Institute of Dental Sciences and Research, Amritsar were declared as Minority Institutions. There is no other institution other than these institutions who are minority institutions. The other minority institutions claim their right to conduct their own test on the ground that they have been established and have had their own admission procedure for the last 25 years. The Institutions which have formed Association do not fall in the category of the Institutions which had been established and have had their own admission procedure for the last 25 years. The Association’s case is that it is a class apart and the other Medical Institutions within the state of Punjab are not Minority Institutions of the particular type of which the Association belongs. The other category of Medical Institutions are not comparable with the institutions forming the Association. The submission finds support from the list of Medical Institutions in the State of Punjab. There are two type of Minority Institutions in the present context. Christian Medical College Ludhiana and under its auspices Christian Dental and Nursing College, Ludhiana. The instant Association also runs its own Medical and Dental Colleges and they are an Institution of a particular type which is distinct and separate from others in the minority category. This submission has to be examined in the light of the Ratio of the Judgment “ Islamic Academy of Education Vs. State of Karnataka, 2003 (6) SCC 697. The Apex Court Permits the only an Association of a particular type in the State to hold a Common Entrance Test for filling their Management Quota Seats. This question was answered by the Apex Court thus :

“The question then is how the management of both minority and non-minority professional colleges can admit students in the quota allotted to them. To avoid or control profiteering and/ or charging of capitation fees, the majority judgment provides that in professional colleges admission must be on the basis of merit. But students would have to and do undergo great hardship and incur huge cost in appear in for individual tests of various colleges. So what is necessary is a practical approach keeping in mind the need for a merit based selection. The Words “common entrance test” used in pars 68 of T.M.A. Pai case clearly indicate that each institute cannot hold a separate test. It is therefore, held that the management could select students of their quota, either on the basis of common entrance test conducted by the State or on the basis of common entrance test to be conducted by an association of all colleges of a particular type in that State e.q. medical, engineering or technical etc. (Emphasis Supplied). The Common Entrance Test, held by the association must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the authority concerned and the Committee set up hereinafter. If any professional college chooses not to admit from the common entrance test conducted by the association, then that college must necessarily admit from the common entrance test conducted by the State. After holding the common entrance test and declaration of results, the merit list will immediately be placed on the notice board of all the colleges which have chosen to admit as per this test. A copy of the merit list will also be forthwith sent to the aurhority concerned and the Committee. Selection of students must then be strictly on the basis of merit as per that merit list. Of course, minority colleges will be entitled to fill up their quota with their own student on the basis of inter-se merit amongst those students. The list of students admitted, along with the rank number obtained by the student, the fees collected and all such particulars and details as may be required by the concerned authority or the Committee must be submitted to them forthwith. The question paper and the answer papers must be preserved for such period as the concerned authority or Committee may indicate. If it is found that any student has been admitted dehors merit, penalty can be imposed on that institute and in appropriate cases recognition/ affiliation may also be withdrawn “

What is relevant in the present context is the observation supra ; that the Management could select the student of their quota, either on the basis of Common Entrance Test conducted by the State on the basis of Common Entrance Test or to be conducted by an Association of all colleges of a particular type in that State e.g. Medical, Engineering or Technical, etc. The Apex Court has further stressed that the Common Entrance Test held by the Association must be for admission to all colleges of that type in the State. It is reiterated that apart from CMC Ludhiana, it is the present Association which is running a Medical and a Dental College in the Minority Institution category.

Furthermore the term “Particular type” has to be ascertained to comprehend its full meaning. The New Webster’s Dictionary, Copy Right Edition 1981 defined the word “Particular as …………….. Belonging or Pertaining to some group, class, occasion, or other category rather than to other or all; special not general; distinguished and different from other, or from the ordinary; noteworthy marked; exceptional or special; not general; not referring to the whole extent of a class, but only to some individual or individuals in it, pertaining to portion of something, separate; individual or specific, A certain group or individual within a general category.”

In the light of above comprehensive definition of the word “Particulars” I deem it appropriate to hold that the present Association runs Medical and Dental College of a Particular type in the Minority Category which is distinct and separate from other institutions. Hence I consider it appropriate to permit the Medical and Dental College run by the Association to hold its own Common Entrance Test for the academic year 2004-05 only. This is interim arrangement to safeguard the interest of all concerned. Since the present Association has been conducting the Entrance Test for admission to its two institutions in recent times only,. it is important that the conduct of examination to its Medical and Dental Colleges is held under the guidelines and administrative directions given from time to time by the Committee according to requirements of transparent, fair, objective and merit based entrance examination.

The other question can only be answered after giving an opportunity of hearing to the State and recording evidence. I accordingly direct that notice be issued to the State of Punjab through its Chief Secretary. Normally the State is sued through the respective Secretary of the Department, but since Secretary Medical Education and Research and Research is a Member Secretary of this Committee, I have to issue notice to the Chief Secretary. I accordingly advice the Member Secretary to issue a letter of request to the Chief Secretary to make arrangements for representing the State in these proceedings on priority basis. Since important question of great magnitude having vide ramifications arise in this case, I think it appropriate to be assisted by Advocates having a special knowledge in this field. I accordingly nominate Mr. Anupam Gupta, Advocate R/o H.No. 68, Sector 8, Chandigarh, Ph. No. 2781493, Dr. B.M. Singh, Advocate, R/O H.No. 651, Sector 40-A, Chandigarh, Phone No. 2693651 and Sh. K.C. Mahajan, Advocate, R/O Jodha Mal Road, Civil Lines, Hoshiarpur, Phone Nos. 01882-221290, 01882-221690 as Amicus Curie to assist this Committee objectively. The next date of hearing of the case will be fixed after consulting the parties.

Arguments were concluded on June 28, 2004 The Admission Committee meeting has been convened for today Member Secretary, please circulate the judgment to the members.

30.5.2004. Justice G.R. Majithia
Chairman
Committee for Admissions

The matter was listed for hearing on July 15, 2004. The Association was permitted to lead evidence in support of their submissions. No evidence was led. Mr Deepak Sibal, Advocate formulated the question on which he intended to address the Committee. The application is marked ‘A’ for purpose of identification.

3. The permission to hold the entrance test was accorded primarily treating the Sikh Educational Institutions as Minority Educational Institutions. It was in the Light of this that issue No. 4 was formulated. It requires examination whether the minority status to the Sikh Educational Institutions was rightly accorded. I do not deal with the first part of the issue. The second part which is purely a question of law will be examined and dealt with. When this issue was raised by the learned Advocate Dr. B.M. Singh, the representationists became furious saying the minority status had been granted by the Government and nobody can touch this matter and left the meeting.

The notification dated April 3, 2001 reads thus :-
“Whereas in terms of the provisions of the Constitution of India, the Sikhs are a minority Community in the Country.

AND whereas the Governor of Punjab is of the opinion that the Sikh Educational Institutions, ought to be treated as Minority Educational Institutions,

NOW, therefore, the Governor is Punjab is pleased to declare that the Sikh Educational Institutions, run by the Sikh Gurdwara Prabhandak Committee, Amritsar, can reserve upto 50% seats, exclusively for the members of Sikh Community and for furthermore of the interest of the Sikh Community, the aforesaid Committee, may make reservation within the seats, so reserved. The notification proceeds on the assumption that the country has to be treated as a unit to confer the minority status to a particular community. I will deal with the question whether the State has to be treated as the unit or the country for determining minority status of an educational institution later on. The Census Act, 1948 was enacted to provide for certain matters in connection with the taking of census. The detailed procedure is given therein as to how the census has to be conducted. The Census of India (conducted every ten years)under the Office of the Registrar General, Ministry of Home Affairs “ Census of India 1991 Series – 20 Punjab Part IV-B(II) Religion (Table C-9)” published by the Director of Census Operations, Punjab, in the introductory note under the head Religious Composition, stated thus :

“Religious Composition
The numerical strength for the six main religious communities and their proportion to total population for India and Punjab as per 1991 Census is as follows :

• Excludes figures of Jammu & Kashmir where 1991 census was not held.

As can be seen from the date in statement I, in Punjab State, Sikhs form the predominant religious community and they account for 62.95 percent of the state’s total population. Moreover, four out of every five Sikhs (78.52%)in the India are residing in Punjab State. Hindus are the second largest religious community in the State and its share in total population is 34.46 percent according to the 1991 Census. Sikhs and Hindus in Punjab together constitute 97.41 percent of the total population of the State leaving a share of Muslims, Christians, Buddhists and Jain in the total population as 1.18, 1.11, 0.12, 0.10 per cent respectively.”

According to the 1991 Census “Sikhs form the predominant religious community and they account for 62.95 per cent of the State’s total population.” After the publication of Census of India 1991 the Census of India 2001 has so far not been gazetted. Now the question arises whether the country is to be treated as a unit of the State for the purpose of granting status to an educational institution. This question was answered in T.M.A. Pai Foundation Vs. State of Karnataka, (2002) 8 SCC 481, by the 11 Judges Bench of the Apex Court, which reads thus :-

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

74. We now consider the question of the unit for the purpose of determining the definition of “minority” within the meaning of Article 30 (1).

75. Article 30 (1) deals with religious minorities and linguistic minorities. The opening words of Article 30(1) make it clear that religious and linguistic minorities have been put on a par, in so far as that Article is concerned. Therefore, whatever the unit- whether a State or the whole of India- for determining a linguistic minority, it would be the same in relation to a religious minority. India is divided into different linguistic States. The States have been carved out on the basis of the language of the majority of persons of that region. For example, Andhra Pradesh was established on the basis of the language of that region viz Telgu. “Linguistic minority” can, therefore, logically only be in relation to a particular State. If the determination of “linguistic minority” for the purpose of Article 30 is to be in relation to the whole of India, then within the State of Andhra Pradesh, Telgu speakers will have to be regarded as a “linguistic minority.” This will clearly be contrary to the concept of linguistic States.

76. If, therefore, the State has to be regarded as the unit for determining “linguistic Minority” vis-à-vis Article 30, then with “religious Minority” being on the same footing, it is the State in relation to which the majority or minority status will have to be determined.

77. In Kerala Education Bill, 1957 case (2) the question as to whether the minority community was to be determined on the basis of the entire population of India, or on the basis of the population of the State forming a part of the Union was posed at SCR P 1047. It had been contended by the State of Kerala that for claiming the status of minority, the persons must numerically be a minority in a particular region in which the educational Institution was situated and that the locality or ward or town where the institution was to be situated had to be taken as the unit to determined the minority community. No final opinion on this question was expressed, but it was observed at SCR P. 1050 that as the Kerala Education Bill “ extends to the whole of the State of Kerala and consequently the minority must be determined by reference to the entire population of the State.”

78. In two cases pertaining to DAV College, this Court had to consider whether the Hindus were a religious minority in the State of Punjab. In DAV College Vs. State of Punjab (12) the question posed was as to what constituted a religious or linguistic Minority, and how it was to determined. After examining the opinion of this Court in Kerala Education Bill, 1957 case (2), the Court held that the Arya Samajis, who were Hindus, were a religious minority in the State of Punjab, even though they may not have been so in relation to the entire country. In another case, DAV College Vs. State of Punjab (13) the observations in the first DAV College case (12) were explained at SCR P. 681, it was stated that “what constitutes a linguistic or religious minority must be judged in relation to the State in as much as the impugned Act is a State Act and not in relation to the whole of India”, (SCC P. 264 Para 5). The Supreme Court rejected the contention that since Hindus were a majority in India, they could not be a religious minority in the State of Punjab, as it took the State as the Unit to determine whether the Hindus were a minority community.

79. There can, therefore, be little doubt that this Court has consistently held that with regard to a State Law, the Unit to determine a religious or linguistic minority can only be the State.
80. The 42nd amendment to the Constitution included education in Concurrent List under Entry 25. Would this in any way change the position with regard to the determination of a religious or “linguistic minority” for the purpose of Article 30 ?

81. As a result of the insertion of entry 25 into List III, Parliament can now legislate in relation to education, which was only a State subject previously. The jurisdiction of Parliament is to make laws for the whole or a p-art of India. It is well recognised that geographical classification is not violative of Article 14. It would, therefore, be possible that, with respect to a particular State or group of States, Parliament may legislate in relation to education. However, Article 30 gives the right to a linguistic or religious minority of a State to establish and administer educational institutions of their choice. The minority for the purpose of Article 30 cannot have different meanings depending upon who is legislating. Language being the basis for the establishment of different States for the purpose of Article 30, a “linguistic minority” will have to be determined in relation to the State in which educational institution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minority have been put on a part in Article 30.

What are the pre-requisites for claiming the benefit under Article 30 (1) of the Constitution ? This question was answered in para 143 of the judgment reported as S.P. Mittal Vs. Union of India and others, reported as AIR 1983 SC 1, in which it was held thus :-

“143. On an analysis of the two Articles, Article 29 and Article 30 and the three cases referred to above, it is evident that the impugned Act does not seek to curtail the right of any Section of citizens to conserve its own script or culture, conferred by Article 29. The benefit of Article 30 (1) can be claimed by the community only on proving that it is a religious or linguistic minority and that the institution was established by it. In the view that we have taken that Auroville or the society is not a religious denomination, Articles 29 & 30 would not be attracted and, therefore, the impugned Act cannot be held to be violative of Articles 29 and 30 of Constitution.”

Can the representationists can still say that the Sikhs are religious or linguistic minority and that the institutions were established by the minority ?

Thus, the Unit to determine religious or linguistic minority can only be the State. In the notification dated April 3, 2001 the State Government has treated the Sikhs as a minority community in the country treating the country as a Unit for such determination. This notification is also in conflict with the Government Notification No. 5/19/04-5 HB III/ 3068 dated 17.6.2004. The Notification was issued after following the due process. It was approved by the Chief Executive of the State and Minister concerned. Clause 1 (a) (b) of the Notification reads thus :-

1. GENERAL
(a) The Governor of Punjab is pleased to notify admission to under graduate degree course in Medical (MBBS)/ Dental (BDS)/ Ayurvedic (BAMS)/ Homoeopathic (BHMS), for the year 2004 in the medical institutions in the State of Punjab. This notification is issued in accordance with the judgment of the Hon’ble Supreme Court of India in TMA PAI Foundation Vs. State of Karnataka(2002) 8-SCC-481 and Islamic Academy of Education Vs. State of Karnataka (2003) 6-SCC-697.

(B) The salient points of the Supreme Court decision are :

(1) The State Government would fix the percentage of Government and management (minority) quota seats in private medical institutions in the State. In fixing the percentage the State must keep in mind the local needs and the interests of the minority community in the State. The private institutions, if not satisfied with the distribution of the seats, can approach the Committee headed by a retired High Court Judge.

(2) The status of an institution as minority institution is to be determined by taking the State as unit.

(3) All the seats in Government Colleges and Govt. quota seats in private colleges will be filled up on the basis of merit in the Common Entrance Test (PMET) conducted by the University.

(4) The management (minority) quota seats can be filled up either from the PMET conducted by the University or the Common Entrance Test conducted by the Association of all Private Colleges. If no such test is held by the private colleges, then the management seats would also be filled up on the basis of merit in University conducted test. Institutions holding their on test fore more than 25 years can be exempted from these two tests and can be permitted to have their own test provided they exercise the option and are permitted by the Committee of a retired High Court Judge.

5. The management (minority) quota seats in the minority institution would be filled up strictly on the basis of inter-se merit of the students belonging to minority community in the competitive test and there would be no sub-reservation/quota for any sub-category in these seats
.
6. All the seats would be filled strictly on the basis of merit and there would be no sub quota/sub-reservation in either the Government seats or the management seats except for the constitutional reservation provided by the Government

7. There would be uniform fee structure for both Government and management seats. The private colleges can propose their own fee structure, which would be subject to approval by the Committee of retired High Court Judge.”

Clause 1 (b) (2) of the Notification dated 17.6.2004 specifically lays down that. “The status of an institution as minority institution is to be determined by taking the State as unit.” Clause 1 (b) (2) stands substituted for the original notification dated April 3, 2001. What is the effect of notification dated 17.6.2004 ? Once an old Rule has been substituted by a new rule, it ceases to exist. In Firm A.T.B. Mehtab Majib & Co. Vs. State of Madras and others, reported as AIR 1963 SC 928 ( V 50 C 139) in paragraph 20 of the judgment it is observed thus :

“20. It has been urged for the respondents that if the impugned rule be held to be invalid, old rule 16 can gets revised and that the Tax Assessment of the petitioner will be good. We do not agree. Once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid. “

This rule of law was reiterated by the Apex Court in Indian Express Newspapers (Bombay) Pvt. Ltd. and others Vs. Union of India, as reported in AIR 1986 SC 515. In paragraph 104 of the judgment it was observed thus :-

“104. In Mehtab Majid & Co. Vs. State of Madras, 1963 Supp. (2) SCR 435 at Page 446: (AIR 1963 SC 928 at page 928) also this court has taken the view that once an old rule has been substituted by a new rule, it ceases to exist and it does not get revived when the new rule is held invalid.”

In the light of these pronouncements there is no escape from the conclusion that the latter notification has to prevail over the earlier one and the latter stands substituted for the former. The earlier notification dated 3.4.2001 being in conflict with the rule of law laid down in TMA PAI Foundation Vs. State of Karnataka (2002) 8-SCC-481, cannot be sustained. The judgment operates as estoppel against the State of Punjab. In legal parlance, “ estoppel equasi of record” as held in AIR 1978 Allahabad 485. Can the State still say that it will not treat the State as a Unit for determining the definition of the minority within Article 30 (1) of the Constitution of India.

Now the question arises whether this Committee can go into the validity or otherwise of the first notification dated 3.4.2001. This question was again answered by the Apex Court in Islamic Academy of Education Vs. State of Karnataka (2003) 6 SCC 697. In paragraph 7 of the report it was observed thus :-

“As at present, there are statutes/ regulations which govern the fixation of fees and as this court has not yet considered the validity of those statutes/regulations, we direct that in order to give effect to the judgment in TMA PAI case, the respective State Government/ concerned authority shall set up in each state, a Committee headed by a retired High Court Judge who shall be nominated by the All India Council for Technical Education (in short “AICTE”), depending on the type of Institution, shall also be a member. The Secretary of the State Govt. in charge of Medical Education or Technical Education, as the case may be, shall be a member as Secretary of the Committee. The Committee should be free to nominate/ Co-opt. another independent person of repute, so that the total number of members of the Committee shall not exceed five.”

This Committee whether it is categorized as a Fee Fixation Committee or as Supervisory Admission Committee, it has to ensure due compliance of TMA PAI Foundation Vs. State of Karnataka, Judgment.

The State Govt. in its notification dated 17.6.2004 had not permitted the Association to hold the entrance test. It was the Committee which granted the permission. It was only an interim measure. The Committee had not opined on the validity or otherwise of the pleas set out for granting the permission.

On July 15, 2004, Shri Deepak Sibal, Advocate, also appeared on behalf of the representationists. He submitted thus :-

1. REGARDING SUB QUOTA
No permission has been granted to make any sub quota within the 50% Sikh quota.

2. REGARDING SUBMISSION OF MERIT LIST BEFORE APPROVAL
We have been directed to send merit list and make admission only after approval of the Committee.

3. Directions have been issued that NRI Quota would form part of 50% Sikh Quota.

4. The Committee has ordered that it would pass separate order regarding distribution of seats.

We would be raising objections regarding the above issues.

His submissions are contained in the application marked A/2 for the purpose of identification.

The precise submissions of Mr. Sibal is that the State Govt. has allowed them 50% management quota seats but has not permitted sub-quota within the management quota. He submits that in para No. 6 of the prospectus of PMET 2004, the State Govt. has allowed reservations in the Govt. quota in the Government Colleges. The act of the State is discriminatory as it has not permitted sub-quota within the management quota. In order to appreciate the submissions of Mr. Sibal, it is necessary to examine as to how the State Govt. has made reservations for various categories in the Govt. Colleges. Has the reservation Constitutional sanction ? The object of Article 50 (4) of the Constitution is to make it Constitutional for the State to reserve seats for backward class citizens, Schedule Castes and Schedules Tribes in Public Educational Institutions as well as to make other special provisions as may be necessary for their advancement. Can a preferential treatment can validly be given because social and educational backward class need it. This question was answered by the Apex Court in AIR 1971 SC 1762 in Para 43 thus :-

“Once the power to lay down classification or categories of persons from whom admission is to be given is granted, the only question which would remain for consideration would be whether such categorisation has an intelligible criteria and whether it has a reasonable relation with the object for which the rules for admission are made. Rules for admission are inevitable so long as the demand of every candidate seeking admission cannot be complied with in view of the paucity of institutions imparting training in such subjects as medicine. The definition of a “Political sufferer” being a detailed one and in certain terms, it would be easily possible to distinguish children of such political sufferer from the rest as possessing the criteria laid down by the definition. The object of the rules for admission can obviously be to secure a fair and equitable distribution of seats amongst those seeking admission and who are eligible under the University Regulations. Such distribution can be on the principle that admission should be available to the best and the most meritorious. But an equally fair and equitable principle would also be that which secures admission in a just proportion of those who are handicapped and who. but for the preferential treatment given to them, would not stand a chance against those who are not so handicapped and are, therefore, in a superior position. The principle underlined in Article 15 (4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time, they stand in equal position with the more advanced sections of the society. It would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fall under Article 15 (4). It is on such a principle that reservation for children of defence personnel and Ex-Defence Personnel appears to have been upheld. The criteria for such reservation is that those serving in the defence forces or those who had so served are and were at a disadvantage in giving education to their children since they had to live while discharging their duties in difficult places where normal facilities available elsewhere were not available. In our view it is not unreasonable to extend that principle to the children of political sufferers who is consequence of their participation in the emancipation struggle became unsettled in life; in some cases economically ruined and were therefore, not in a position to make available to their children that class of education which would place them in fair competition with the children of those who did not suffer from that disadvantage. If that be so, it must follow that the definition of “Political Sufferers” not only makes the children of such sufferers distinguishable from the rest but such a classification has a reasonable nexus with the object of the rules which can be nothing else than a fair and just distribution of seats. In our view, neither of the two contentions raised by counsel for the petitioner can be accepted with the result that the writ petitions fails and is dismissed.

Mr. Sibal is not correct in saying that the State is duty bound to permit the minority institutions sub-quota within the quota. These aided/unaided institutions had no right to claim sub quota within the quota. However, in the interest of justice I permit them similar reservation as has been allowed by the Government in Government Colleges.

The State Govt. has not granted the permission to the management of alleged minority institution to hold their Entrance Test. It was the Committee who granted the permission and the Committee placed certain conditions to ensure that the entire process of conducting the examination, examination of answer sheets, declaration of result is transparent, fair and objective.

The NRI quota has been revived by the State Govt. and the State Govt. has directed that it will give them out of the 50% management quota seats. Mr. Sibal could not place anything on record that the discretion exercised by the State was not just and fair and it calls for interference. The further submission of Mr. Sibal that the Committee would pass separate order with regard to the distribution of seats is misplaced. Before the Committee it was argued that since it is a self financing institution, allowing of 50% seats of the total strength is not just. It ought to have been allowed more seats as it is a self financing institution. This question has in fact become redundant for the reason that in the earlier part of my judgment, I have held that institutions are not minority educational institutions. They will be Sikh Educational Institutions and not Minority Educational Institutions. They will be entitled to have the management quota seats and not the minority quota seats. The State Govt. will fix the management quota seats. If the representationists are aggrieved against such fixation, they can go to Committee for redressal of their grievances. At this state, the request is premature. I have also observed in earlier part of the judgment when the Id. Advocate Dr. B.M. Singh raised the question that the minority status to the two educational institutions was wrongly accorded. The representationists became furious and left the meeting. The question being a purely legal question, examined in the light of TMA PAI Foundation.

For the reasons stated above, I hold thus :-

1. The notification dated 3.4.2001 being contrary to the rule of law laid down in IMA PAI Foundation Case and the subsequent notification dated June 17, 2004 cannot be upheld;

2. The Institutions will not be entitled to minority quota seats but management quota seats and the State Government will accordingly re-determine the management quota seats in the light of the judgment in TMA PAI Foundation Case ;

3. This order will operate prospectively. For the year 2004-05, the Institutions will conduct the test and fill in the seats in the light of the interim directions contained in order dated July 1, 2004.

4. The Management of the Institutions can have sub quota within the quota on the same Line as has been permitted by the State Govt. in Govt. Medical Colleges. The reservation has been allowed by the Govt. in the Medical Colleges. The similar type of reservation can be made by the Management of these two institutions.

Dated : July 19, 2004. (Justice G.R. Majithia) Retd.
Chairman
Committee for Overseeing the
Entrance Test Conducted by the
Association of Private
Professional Colleges, At
Chandigarh.

Mr. Satish Chandra Dr. K.N.Pathak,
Member Secretary Member

Dr. J.S. Gujral Dr. S.K. Sharma
Member Member

Dissenting Note

1. The representations filed by the association of Unaided Sikh Minority Medical and Dental institutions have been decided by the majority of three members comprising of Chairman, Mr.Justice G.R.Majithia, Dr.K.N.Pathak, Member, Dr.S.K.Sharma, Member vide order dated 19/7/2004. The majority judgement says that:

(a) the two institutions – Sri Guru Ram Das Institute of Medical Science, Amritsar and Sri Guru Ram Das Institute of Dental Science, Amritsar are not entitled to minority status and the notification dated 3/4/2001 granting them minority status being in violation of TMA in judgement of the Supreme Court can not be up held. However for the current year 2004-05 they would continue to enjoy the minority status and they would loose this status from the academic year 2005-06.

(b) for the current year 2004-05 the institutions can conduct their own test for the 50% minority seats as per directions contained in the year dated 1/7/2004.

(c) The institutions can have sub-quota within the minority quota on the same line as has been permitted by the State Government in Government Medical Colleges i.e. they can provide reservation only for those categories for which Government has provided reservation in its own medical colleges. There can not be reservation for any other category in the petitioner institutions.

2. The under-signed fully endorse the findings of the majority judgement in regard to sub-para (b) and (c) above. However the under-signed are not able to endorse the findings in regard to sub-para (a) above i.e. in regard to the minority status. We had put our reservation in this regard in our joint note dated 6/7/2004 addressed to the Hon’ble Chairman. We had specifically pointed out that framing of issues in regard to definition of Sikh student and questioning the grant of minority status to these two institutions would not only be totally uncalled for but also beyond jurisdiction. It appears that our submissions have not been taken into consideration. We feel that it is not proper for the Committee to strike down the minority status of these two institutions. The reasons are as follows:

(i) These two institutions were granted minority status by the Government on 3/4/2001 whereas judgement of the Supreme Court in TMA Pai case came only on 31/10/2002.

(ii) No doubt Supreme Court has held that the State will be taken as a unit while determining the minority status of a particular community. However the Hon’ble Court has not given any power to the Committee to decide the questions of grant/withdrawal of minority status to particular institution. It is the State Government which is competent in these matters and the Committee does not have any jurisdiction.

(iii) Even otherwise no representation has been filed before the Committee questioning the minority status of these two institutions by anyone.

(iv) If the majority of the members were of the view that the grant of minority status to these two institutions called for review in the light of Supreme Court judgement, a reference could perhaps been made to the government for deciding the matter afresh.

(v) The Apex Court has set up two Committees – Fee Fixation Committee and Admissions Supervision Committee for finalizing fee structure and for supervising the admissions in private unaided medical institutions. The powers of the Admissions Committee have been described in para 19 of the judgement of the Supreme Court in Islamic Academic Education case. The Committee has powers only in regard to (i) to supervise the entrance test conducted by the association/private institutions and ensure that the test is conducted in a fair and transparent manner; (ii) to decide the representations from the private institutions against the government order fixing quota for government and management seats.

We accordingly feel that this Committee has no jurisdiction in regard to questions of grant of minority status. We have accordingly recorded the dissenting note.

CHAIRMAN NOTE

The dissenting Note prepared by Mr. Satish Chandra, Secretary Medical Education and Research and Member Secretary and Dr. J.S. Gujral is placed on record and will form part of the Judgment. It has been page marked.

The Representation No. 172 dated 10.6.2004 filed by unaided Sikh Minority and Dental Institutions is disposed of in terms of the majority judgment and order.

The Judgment consists of 29 pages. Each page has been initiated by the Chairman.

23.7.04 Sd/-
Justice G.R. Majithia (Retd.)
Chairman

Member Secretary

Please communicate the judgment and order to the parties.

Sd/-
Justice G.R. Majithia (Retd.)
Chairman