SPECIAL CIVIL APPLICATION No 10693 v. Appearance

suchthe Committee has not taken any final decision which is disputed by Shri DCDave learned advocate appearing on behalf of the petitioner Relying upon the communication at 45 of the petition which is impugned in the page44 present Special Civil Application it is submitted by Shri Dave learned advocate appearing on behalf of the petitioner that in fact the Committee had met and has taken a decision however Shri KBTrivedi learned Advocate General and Shri ADOza learned advocate for the respondent No1 have submitted that as such no decision has been taken It is also submitted by them that after communication dated 452006 there is representation by the petitioner on 552006 and without giving sufficient time the present Special Civil is filed on 952006 and because of the Application pendency of the present Special Civil Application no decision has been taken by the respondent No1 andor representation dated 552006 submitted by the petitioner has not been considered It is also further submitted that the respondent Committee is ready and willing to consider the No1 representation of the petitioner dated 552006 objectively and an appropriate decision will be taken and therefore it is requested to reserve the liberty in favour of the respondent Committee to take an appropriate decision No1 Considering the above the respondent No1 Committee is directed to consider the representation submitted by the petitioner dated 552006 objectively and take an appropriate June decision on the said representation on or before 1st 2006 and place the said decision on record of this petition on 2nd June 2006 It will be open for the petitioner to request for personal hearing which may also be considered by the respondent No1 Committee At this stage it is submitted on behalf of the respondent No1 Committee that let the representative of the petitioner shall remain present for personal hearing on 30th May 2006 at 500 PM So that the . . . . Committee may consider their views also . . – . . – . – . – . , . . – , . . . . , / , , , . , , In above view of the matter the matter is adjourned to 2nd . , June 2006 Direct Service is permitted today ." That thereafter , the representative of the petitioner association and their advocate came to be heard by the Committee thereafter , admission committee issued the impugned communication dtd 31 5 2006 reiterating what was stated earlier i e . / / . . directing the members of the petitioner association to take Common Entrance Test and grant admission in the 1st Year Engineering Colleges on the basis of SCA/10693/2006 JUDGMENT the merits / obtained in such Common Entrance Test and the said Common Entrance Test to be conducted by the petitioner association or to grant admission by following the combination of 12th standard examination in science stream 60 ( %) and GUJSET 40 ( %) . i e on the basis of the admission . to be granted by the State for admission to Government and Aided Colleges Being aggrieved by . and dissatisfied with the same , the petitioner Association has preferred the present petition under Article 226 of the Constitution of India . .6 The following issues arisen consideration Court deciding controversy involved in the present petition ; ( )i Is it permissible for the petitioner Association / Self Financed Engineering Colleges in the State to admit the students in the 1st Year Degree Courses on the he marks obtained 12th Standard Examination . i e the examination conducted by the . State Level Higher Secondary Education Board or is it mandatory Self Finance Institutions Association of Self Financed Institutions to undertake SCA/10693/2006 JUDGMENT an entrance examination ( to undertake separate entrance examination ) ( Common Entrance Test ) the purpose of admission over and above 12th standard examination In other words is it permissible , . the petitioner Association and or Self Financed / Institutions to treat the examination conducted by the Higher Secondary Education Board which is State level as Common Entrance Test and grant admission , on that basis without conducting additional Common Entrance Test?

( )ii Is it within the jurisdiction of the admission committee to issue direction which is having virtually effect of thrusting process admission upon Unaided . Engineering Colleges i e Self financed Institutions? . .7 Mr D C Dave learned advocate appearing on behalf , . . . of the petitioner has vehemently submitted that the decision of the admission committee is based upon the decision of the Hon'ble Supreme court in the case of P A Inamdar supra It is submitted that the ). . ( . admission committee has proceeded on the premise as if an entrance test over and above 12th standard examination in science stream is sine qua non and - - SCA/10693/2006 JUDGMENT therefore is within competence admission committee to insist that the member of the petitioner association / petitioner association should either take an entrance test or in the alternate , should follow the concerned entrance test conducted State over and above 12th standard examination in science stream Mr Dave has further . . submitted that the Hon'ble Supreme Court in the case of P A Inamdar supra has never considered the ) . ( . aspect as to when the Self Financed Institutions to give admission on the basis of marks obtained . . H S C . Examination ( qualifying examination Still the association has to conduct the ).

Common Entrance Test over and above 12th standard examination While relying upon the judgement of the . Hon'ble Supreme court in the case of Islamic Academy Education Vs . State of Karnataka , reported in 2003 6 SCC 697 , ) ( it is submitted that the direction issued by the Admission Committee as , stated hereinabove is beyond its jurisdiction It is also . further submitted by him that pursuant to the order passed Court / dtd 29 5 2006 / . , detailed submissions were made by the petitioner association . However , decision / dtd 31 5 2006 / . SCA/10693/2006 JUDGMENT submissions made for and on behalf of the petitioner association has been mis construed by the Admission - Committee inasmuch as at no point of time it was , , given to understand to the committee petitioner association intends to grant admission on the basis of 12th standard examination in science stream only for the current academic year and therefore it should be permitted to do so It , . submitted that as a matter of fact during the course , of hearing before the Committee for and on behalf of the association it was submitted that even if respondent No 1 admission committee is of a different . view in the peculiar facts of the present case keeping all the controversy open to be resolved in future at , for the current academic year , the admission committee should permit the grant of admission by the Self Financed Institutions in the discipline of Engineering 12th Standard Examination in science stream It is submitted that . the aforesaid submissions was made for purpose of working out amicable solution and , therefore , the same should have been construed accordingly by the admission committee . .8 Mr Dave learned advocate appearing on behalf of the , . SCA/10693/2006 JUDGMENT petitioner referred to and rely upon the following decisions of the Hon'ble Supreme Court ; ()i TMA Pai Foundation vsState of . . Karnataka . reported in 2002 8 SCC 481 ( ) ( ) ii Islamic Academy of Education . Vs State of Karnataka ( reported in 2003 6 SCC 697 ) ( ) iii PA Inamdar vs State of . , Maharashtra . reported in 2005 6 SCC 537 ( ) ( ) iv AIR 1972 SC 1375 . ) . Mannan Lal VsMsChhotka Bibi decd , by her legal representative and ors ( ( )v AIR 2004 SC 1861 & . . State of Tamilnadu Anr Vs ) & . ( SV Bratheep minor Ors . . ( )vi( 1996 5 SCC 732 ) Shri Chander Chinar Bada Akhara Udasin Society Ors Vs Stateof J K Ors 1998 3 SCC 183 & . . & & . ) ( )vii( . Ravindra Kumar Rai Vs . State of Maharashtra and ors ( )viii( 1999 2 SCC 48 ) . . State of Maharashtra and ors Vs . Ravindra Kumar Rai .9 Mr Dave learned advocate appearing on behalf of the , . petitioner has submitted that decision in PA Inamdar ( supra is not aimed at overruling or even diluting in ) any manner what emanates from the decision in TMA Pai ( ).

He has relied upon the following paragraph of the decisoin in PA Inamdar supra ( ); SCA/10693/2006 JUDGMENT . - ; , , , " At the very outset we may state that our task is not to pronounce our own independent opinion on the several issues which arose for consideration in Pai Foundation Even if we are inclined to disagree with any of the findings amounting to declaration of law by the majority in Pai Foundation we cannot that being a pronouncement by 11Judge Bench we are bound by it We cannot express a dissent or disagreement however we may be inclined to do so on any of the issues The real task before us is to cull out the ratio decidendi of Pai Foundation and to examine if the explanation or clarification given in Islamic Academy runs counter to Pai Foundation and if so to what extent If we find anything said or held in Islamic Academy in conflict with Pai Foundation we shall say so as being a departure from the law laid down by Pai Foundation and on the principle of binding efficacy of precedents overrule to that extent the opinion of the Constitution Bench in Islamic Academy . , . , , ."” , , . Relying upon the aforesaid para of the PA Inamdar ( supra it is submitted that a reference was made to ), seven judges bench of the Supreme Court in PA Inamdar to ascertain as to whether the directions contained in Islamic Academy judgement were in , conflict with decision in TMA Pai . It is submitted that Islamic Academy provided for three fold directions namely i constitution of committees for admissions ( ) and fees ( ) bifurcation of seats into state and management , ( ) entrance admissions not college wise but through Association of colleges He has also . further submitted that reference was made to seven judges bench in PA Inamdar as the directions in Islamic Academy were , questioned in two matters i e in PA Inamdar . . Vs . State of Maharashtra & Ors 2004 8 SCC 139 and in ) ( SCA/10693/2006 JUDGMENT Pushpagiri Medical Society Vs State of Kerala and . Ors 2004 8 SCC 135 He has relied upon para 26 of ) . ( . decision in PA Inamdar supra which reads as ( ) ; ) " These matters have been directed to be placed for hearing before a Bench of Seven Judges under Orders of the Chief Justice of India pursuant to order dated July 15 2004 in PA Inamdar and Ors Vs State of Maharashtra and Ors ( 2004 8 SCC 139 and order dtdJuly 29 2004 in Pushpagiri . Medical Society Vs State of Kerala and Ors 2004 8 SCC 135 The aggrieved persons before us are again classifiable in one class that is unaided minority and nonminority institutions imparting professional education The issues ; arising for decision before us are only three . . . .,( , , , ) . , . - . () i the fixation of quota of admissionsstudents in / ” ; respect of unaided professional institutions “ ( ) iithe holding of examinations for admissions to such colleges that is who will hold the entrance ; tests and , , ( ) iii the fee structure ."” .10 It is further submitted by Mr Dave that so far as . the present petition is concerned the question has , arisen with regard to second issue i e . . holding examinations for admissions to such Self Financed Institutions i e who will hold the entrance tests . , . . It is further submitted that the said question arose in PA Inamdar case on account of the fact that some of the colleges which did not join the Association of colleges claimed right to hold a separate entrance , test as available to them under TMA Pai According . , to Mr Dave who should hold the common test ? was ” , “ . SCA/10693/2006 JUDGMENT the point of reference in PA Inamdar and not When “ should one hold the common entrance ? ” It submitted that this distinction needs to be noticed while reading decision in PA Inamdar . It is further submitted aforesaid , appropriate issue came to be framed by the Hon'ble Supreme Court vide paragraph No 27 of the decision . in PA Inamdar on the aspect of , right of Unaided colleges to hold an entrance test and thereupon the same came to be answered vide paragraphs 136 and 137 of the decision in PA Inamdar . It is submitted by Mr Dave that while answering the same the Hon'ble , . Supreme Court upheld the dictum laid down in Islamic Academy directing that there cannot be entrance test college wise as the same will cause , - inconvenience to the students and hence if unaided , colleges decide to have entrance test for admissions , it has to be through their association It is therefore . , , submitted that in substance , the decision in PA Inamdar has simply upheld Islamic Academy on the aspect of entrance test on the premise that directions contained in Islamic Academy on the issue of entrance test are not in conflict with TMA Pai As . such on the aspect of entrance test PA Inamdar , , , SCA/10693/2006 JUDGMENT interpreting directions contained Islamic Academy as not in conflict with TMA Pai simply prescribes triple test its acceptance by the Admission Committee He has relied upon para 137 of . the PA Inamdar which reads as follow ; - - . " The same principle applies to nonminority .137 unaided institutions There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair transparent and nonexploitative All the institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above triple tests The State can also provide a procedure of holding a common entrance test in the interest of securing fair and meritbased admissions and preventing maladministration The admission procedure so adopted by private institution or group of institutions if it fails to satisfy all or any of the triple tests indicated hereinabove can be taken over by the State substituting its own procedure The second question is answered accordingly , . ."” , . . . - - , , It further submitted that from the aforesaid analysis of the decision in PA Inamdar , it is apparent that there is nothing therein which can be construed as a mandate to the unaided colleges to hold entrance test thorough their association over and above 12th standard As a matter of fact an issue as , . to whether a common entrance test over and above 12th standard is sine qua non or not was not subject matter of PA Inamdar Therefore there was . , no occasion for the Hon'ble Supreme Court in PA SCA/10693/2006 JUDGMENT Inamdar to deal with the issue as to whether is it compulsory not to grant admissions solely on the basis of 12th standard and thereupon to hold and , entrance 12th standard examination for the purpose of admissions If it were . otherwise the Hon'ble Supreme Court would have , discussed in PA Inamdar the pros and cons of relying upon 12th standard examination for the purpose of admission and thereupon would have explained as to , for what reason it is sine qua non to hold an entrance test over and above 12th standard examination for the purpose of admission It is further . submitted that a reference was made to the seven judges bench in PA Inamdar on account of certain directions issued in Islamic Academy inasmuch as it was contended that while issuing the said directions , Islamic Academy over stepped TMA Pai and in view of this undoubtedly the subject matter PA Inamdar , , could not travel beyond the precincts of Islamic Academy It . is also further submitted that Islamic Academy does not contain a direction that admissions on the basis of 12th standard are prohibited and it is mandatory to hold entrance test over and above 12 th standard Therefore it , . is submitted that something SCA/10693/2006 JUDGMENT which was not there in Islamic Academy can never be the subject matter of PA Inamdar Under . aforesaid circumstances , the reliance placed by the respondents on the question appearing at Sr No ii .( ) . para 27 of the PA Inamdar Judgement , is wholly unwarranted The said question does not . lead to construction , that the issue as to when one should go for common entrance test over and above 12th standard for the purpose of admission is not integral part thereof Therefore it is submitted that the issue , . which arose before the Hon'ble Supreme Court in PA Inamdar was with regard to who should take common entrance test for the purpose of admission without embarking upon th area covered by the issue as to when should one go for common entrance It . submitted that there is no specific direction and or / observations by the Hon'ble Supreme Court in PA Inamdar prohibiting the admission on the basis of 12 th standard examination . .11 Dealing with the concept of common entrance test the purpose of admission it , is submitted by Mr Dave that the expression common entrance test ”

. refers to a common yardstick to prepare a merit list for the purpose of admission Its need was felt in a . SCA/10693/2006 JUDGMENT situation where common or composite merit list for admissions were prepared on the basis of qualifying examinations undertaken by the different bodies In . such situations , it was contended that it would be against the concept of equality under Article 14 of the Constitution to have a common merit list of those having passed qualifying examinations from different boards This paved way . the concept of common entrance test He has . relied upon para 10 of the judgement reported in ( 1996 5 SCC 732 Para 10 of the said judgement ) . reads as follow ; " It need not be pointed out that the percentage of marks secured by different applicants at different types of examinations at the higher secondary stage cannot be treated as uniform Some of such examinations are conducted at the State Level others are at the national level including the Indian Schools Certificate Examination The percentage secured at different examinations are bound to vary according to standard applied by such examining bodies which is well known As such a common entrance . examination has to be held . . ."

, , .12 He has also relied upon the judgments of Hon'ble Supreme Court in the case of Ravindra Kumar Rai Vs State of Maharashtra and ors reported . , in 1998 3 SCC 183 and in the case of State of ) ( Maharashtra . Vs . Ravindra Kumar Rai , reported in 1999 2 SCC 48 and has submitted that ) ( SCA/10693/2006 JUDGMENT in identical situation pertaining to the State of Maharashtra where common merit list was prepared of the students of three different Boards by following some normalization formula was deprecated It . further submitted that so far as the present case is concerned as there is separate quota for State and , Central Board students the question of preparing a , common or composite merit list for the students of both the Boards would not arise Therefore there is . no need to search for an entrance test over and above 12th standard examination for the purpose of admissions Relying upon para 41 of the judgement in . the case of Mannan Lal Vs Ms Chhotka Bibi dead by . ( ) . representative and ors , reported in AIR 1971 SCC 1375 It is submitted that such a practice , of this nature was approved by the Hon'ble Supreme Court He has relied upon para 41 of . the said judgement which reads as follow ; - , . " . . In DN Chanchala Vs the State of Mysore AIR 1971 SC 1762 one of the questions of this court had to consider was the validity of the universitywise distribution of seats in the medical colleges run by the State of Mysore There was three Universities in Mysore State namely Karnatak Mysore and Banglore Universities The challenge to such distribution of seats was that candidates having lesser marks might obtain admission at the cost of another having higher marks from another university This Court after a reference to the different standards of examinations held in the three universities rejected the challenge of discrimination as ; follows , . . , , , . SCA/10693/2006 JUDGMENT , , , . ,

Further the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made provided of course such classification is not arbitrary and has t rational basis and a reasonable connection with the object of the rules So long as there is no discrimination within each of such sources the validity of the rules laying down such sources cannot be successfully challenged In view of the rules lay down a valid classification Candidates passing though the qualifying reexamination held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities Such a classification has a reasonable nexus with the object of the rules namely to cater to the needs of candidates who would naturally look to their own university to advance their training in technical technical studies such as medical studies In our opinion the rules cannot be justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Article 14 . , ."

.... , . . , , .13 Mr Dave has also relied upon para 59 of the decision . in TMA Pai and has submitted that as held by the Hon'ble Supreme Court , is permissible to have admission on the basis of 12th standard He has relied . upon para 56 of TMA Pai Foundation which reads as , follows ; " Merit is usually determined for admission to professional , and higher education colleges by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview or by a common entrance test conducted by the institutionor in the case of professional colleges by Government agencies , , , ."” , .14 Mr Dave has also relied upon para 10 of . judgement of the Hon'ble Supreme Court in the case of State of Tamilnadu and anr Vs S V Bratheep . . . . SCA/10693/2006 JUDGMENT ( ) and ors . reported in AIR 2004 SC 1861 wherein considering the AICTE guidelines it is held , by the Hon'ble Supreme Court that it is permissible to have admission on the basis of 12th standard examination . He has further submitted considering the aforesaid two decisions on the aspect of 12th standard examination being permissible base for admissions , the impugned decision of the respondent No 1 . admission committee prohibiting the admission on the basis of 12th standard ; requiring holding of separate common entrance for admissions through the petitioner association and in the alternate directing admissions on the basis of combination of 12th standard and GUJCET amount interfering with the right available to unaided colleges under Article 19 1 g of the Constitution Mr Dave in ( )( ) . . support of the above submissions has relied upon the following paragraph Nos 36 40 41 52 65 162 of the , , , , , . of TMA Pai decision . .15 Mr Dave has relied upon para 16 of the judgement . in the decision of Islamic Academy and submitted SCA/10693/2006 JUDGMENT that as held by th Hon'ble Supreme Court in the said judgement , it is optional for the unaided colleges to take common entrance test . If they do not intend to hold common entrance test through their Association they have to admit students on the basis of common entrance test conducted by the State for its colleges . Para 16 of the said judgement reads as follows ; , We thus hold that the management could select " .16 ... students of their quota either on the basis of the common , entrance test conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State eg Medical engineering or technical etc 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 concerned authority and the committee set up hereinafter If any professional college choose not to admit from the common entrance test conducted by the association then the college must necessarily admit from the common entrance test conducted by the State . . . . ."” . , , , , , .16 Mr Dave has submitted that . in the present case so , far as the State is concerned it is going to admit , students on the basis of combination of both 12th standard and GUJCET Hence both 12th . , standard and GUJCET would qualify as common entrance for admissions by the State It is submitted that the term . “ Common entrance Test ” refers to an examination which provides an entry to a particular course It is . further submitted that therefore when the petitioner , SCA/10693/2006 JUDGMENT association has decided that it would not hold any additional entrance test for admission the option left , to it is to admit on the basis of entrance test conducted by the State and the same is followed by the petitioner association by accepting one of said entrance tests i e 12th . . standard conducted for , the purpose of admissions by the State . It submitted that the petitioner association has opted for examination to which the State is giving 60 % ( according to the petitioner 79 %) weightage for preparing merit list for admission to the government and grant in aid colleges According to the learned . advocate appearing on behalf of the petitioner association 60 % of 300 Marks of three theory subjects of 12 standard and 40 % of 120 marks of GUJCET are taken into consideration by the State for preparing a merit list on the basis of the same According to him . , in the merit list of State made up of in all 228 marks i e 180marks of 12th ( . . standard and 48 marks of GUJCET ), arithmetically speaking th component of 12 , standard is having the weightage of 79 % and GUJCET 21 %. .17 Mr Dave has further submitted that 12th standard . examination intended to be followed by the petitioner SCA/10693/2006 JUDGMENT association is a time tested method of admission capable of fulfilling the triple test laid down in PA Inamdar and hence the same cannot be objected to by respondent No 1 admission committee particularly . when the same is opted for by the unaided colleges in exercise of the right conferred upon them under Article 19 1 g of the Constitution ( )( ) . It is also further submitted that it is not the case of the respondent . No 1 committee 12th standard examination proposed to be followed by the petitioner association is not capable of fulfilling the said triple . .18 Mr Dave . further submitted methodology of admissions intended to be followed by the petitioner association is aimed at seeing that the students are subjected to the less examinations to the extent possible which is as such the object , , , behind the direction in Islami Academy for entrance through association It . is also submitted that petitioner association has given cogent reasons for following 12th standard as basis for admissions in its communications to the admission committee It . submitted that the said reasons are not disputed by the respondent No 1 admission committee in the . SCA/10693/2006 JUDGMENT impugned communication and as such the impugned communication simply proceeds on the premise that in view of the decision in the matter of PA Inamdar ( supra it is mandatory to hold entrance test and it is ), not permissible to grant admission solely on the basis of 12th standard . .19 Relying upon para 19 of the decision of Islamic Academy , submitted by Mr Dave that . respondent No 1 . admission committee jurisdiction to issue the directions as mentioned in the impugned communication It . is also submitted the jurisdiction is confined to overseeing the entrance test , if any conducted by the association . Para 19 of the Islamic Academy reads as follows ; ....... " .19 We now direct that the respective State Government do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent The Committee shall have powers to oversee the tests to be conducted by the association This would include the power to call for the proposed question papers to know the names of the paper setters and examiners and to check the method adopted to ensure papers are not leaked The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner / , ..."” . . .20 Dealing with the contention of the respondents that the procedure for admission on the basis of 12th SCA/10693/2006 JUDGMENT standard tobe followed by the petitioner association would lead to mischief , it is submitted that when the merit list is to be prepared on the basis of result of 12th standard there is n discretion in the hands of , financed institutions and therefore , the said apprehension is not well founded . It further submitted that the apprehension of this nature is no ground to take away the right available to the petitioner under Article 19 1 g of the Constitution of ( )( ) India It is further submitted that over and above the . over all supervision of admission by the admission committee the petitioner association is ready and , willing to comply with the appropriate stringent conditions those may be imposed by this Court with a view eliminate any apprehension on the part of the respondents with regard to alleged mischief . .21 Mr Dave has further submitted that . the members of the petitioner association would be accepting to grant admission in the self financed engineering institutions on the basis of marks obtained in 12th standard for all the next years to come and it will not be limited only for this year Meaning thereby they will not . change their policy every year It is further submitted . SCA/10693/2006 JUDGMENT by Mr Dave that over and above the over all . supervision of the admission by the respondent committee the petitioner association is ready and , willing to comply with any condition which may be imposed by this Hon'ble Court so as to protect the interest of the meritorious students and so as to avoid the possibility of mischief by any institute . .22 Mr Dave has further submitted that the members of . the petitioner association are also ready and willing for re shuffling once nd the admission on re shuffling - - will be given strictly on the merits so that ultimately meritorious students may not have to suffer . Making the aforesaid submissions Mr D C Dave , . . , . learned advocate appearing on behalf of the petitioner association has requested to allow the present petition by quashing and setting aside the impugned decision of respondent . No 1 admission committee dtd 31 5 2006 and consequently permit / / . the petitioner association and its members to admit students in self financed engineering institutions on the basis of marks obtained in 12th standard examination Meaning thereby . to treat 12th standard examination conducted by the Gujarat Higher Secondary Education Board SCA/10693/2006 JUDGMENT independent body of the State of Gujarat as an entrance test . .23 The petition is opposed by Mr Kamal B Trivedi . . , learned Advocate General appearing with Ms Sangita . Bisan learned AGP appearing on behalf of State as , , well as Mr A D Oza learned advocate appearing on , . . . behalf of the respondent No 1 admission committee . . .24 Mr A D Oza learned advocate appearing on behalf of , . . . respondent . No 1 Admission Committee vehemently submitted that the decision of admission committee dtd 31 5 2006 is in accordance / / . with law more particularly in consonance with the judgment and observations of the Hon'ble Supreme Court in the case of PA Inamdar ( supra He has ). relied upon para 16 of the decision in Islamic Academy and paras 136 and 137 of the decision in the case of PA Inamdar supra Relying on para 16 of ).

( decision Islamic Education supra ( ), submitted that is held by the Hon'ble Supreme Court that if any professional college chooses not to admit from the common entrance test conducted by the association and or association does not what to / conduct common entrance test then that self financed SCA/10693/2006 JUDGMENT institutions must necessarily admit the students from common entrance test conducted by the State . He has also further submitted that as held by the Hon'ble Supreme Court State can also provide a procedure for holding a common entrance test in the interest of securing fair and merit based admission preventing mal administration - regulations are framed the admission committee can , oversee the admissions so as to ensure that merit is not the casualty . He has also relied upon para para 138 of decision in the case of PA Inamdar ( supra which reads as under ) ; , " It needs to be specifically stated that having .138 regard to the larger interest and welfare of the students community to promote merit achieve excellence and curb , malpractice it would be permissible to regulate admissions by providing a centralized and single window procedure to a large extent can secure grant of merit based admissions on a transparent basis Till regulations are framed the Admission Committee can over see admissions so s to ensure that the merit is not the causality , . , ."” , He has also further submitted that the committee power jurisdiction / direct petitioner association for regulating the admission process and the function of the committee is of quasi judicial nature and has power to supervise the admission procedure . SCA/10693/2006 JUDGMENT .25 He has also further submitted that as per communication of the Committee dtd 4 5 2006 and / / . order dtd 31 5 006 it is incumbent upon the petitioner , / / . association to conduct common entrance test and for the purpose transparent and non exploitative - method the common entrance should be conducted , by the independent agency like Education Consultant India Ltd . ( EDCIL All ), India Engineering Entrance Examination ( AIEEE ) . having credibility expertise in conducting such tests for similar type of subjects and courses as contemplated by the Hon'ble Supreme Court He has relied upon para 136 of PA . Inamdar decision which reads as under ; . , , . , " Whether minority or nonminority institutions there - .136 may be more than one similarly situated institutions imparting education in any one discipline in any State The same aspirant seeking admission to take eduction in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on the same or different dates and there may be a clash of dates If the same candidate is required to appeal in several tests he would be subjected to unnecessary and avoidable expenditure and inconvenience There is nothing wrong in a . entrance test being held for one group of institutions imparting same or similar education Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding such test Out of such common merit list the successful candidates can be identified in chosen for being allotted to different institutions depending on te courses of study offered the number of seats the kind of minority to which the institution belong and other relevant factors Such an agency conducting the common entrance test CET for short must be one enjoying utmost credibility and expertise in the matter This would better endure the fulfillment of twin objects of transparency and merits CET is necessary in the interest of achieving the said objectives an also for saving . (“ , ” . . , ) . . SCA/10693/2006 JUDGMENT the students community from harassment and exploitation Holding of such common entrance test followed by centralized counsellings or in other words single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen , , . ." . .26 Relying upon the judgment of the Hon'ble Supreme Court in the case of Islamic Academy supra and PA ) ( Inamdar ( ), it is submitted by Mr Oza that the . petitioner association should invariably conduct common entrance test in order to ensure admission procedure their member institutes , transparent and non exploitative basis and therefore - , the committee vide its communication dtd 4 5 2006 / / . informed the petitioner association that the petitioner association should conduct the common entrance test under the supervision of the committee or in the alternate adopting H S C Marks and GUJCET It is also . . . . submitted that H S C Result Science Stream was . ) ( . . declared by the Board on 8 5 2006 i e almost a / . . / month back and if the instructions of the committee followed petitioner association then the admission process on transparent basis by conducting common entrance test have been over . SCA/10693/2006 JUDGMENT .27 It is submitted that considering the para 16 of the Islamic Academic judgement and para 136 and 137 of the judgement in the case of PA Inamdar supra ( ), only two options are available to the petitioner association namely i ( ) to conduct common entrance petitioner association supervision of the committee and ii ( ) in absence of common entrance test conducted by the petitioner association the member institutions of he petitioner , association have to grant admission on the basis of the common entrance test conducted as per policy of the State Government . .28 It submitted by Mr Oza . , learned advocate appearing on behalf of the admission committee that the HSC Examination conducted by the Gujarat Higher Secondary Board , considered as qualifying examination and with a view to strike balance it has been decided by the State , Government % 60 obtained in HSC Examination obtained in HSC Examination and 40 % marks obtained in GUJCET shall have to be considered for the purpose of preparing merit list . It SCA/10693/2006 JUDGMENT is submitted that the decision is absolutely just and proper and therefore the committee has directed the , petitioner association either to follow the procedure as prescribed by the State Government purpose of preparing merit list or to hold their own common entrance test under the supervision of the committees It is submitted by Mr Oza that in fact the . . petitioner association has proceeded ahead with the advertisement and collection of admission forms without consulting the committee on their behalf and therefore the committee has stepped in and as an , interim measures restrained the association from proceedings further with the admission process by communication dtd 4 5 2006 and thereafter as per , / / . direction of this Court dtd 29 5 2006 / / . , decision has taken by the committee on 31 5 2006 It . / / submitted that pursuant to the order passed by this . Court dtd 29 5 2006 / / , committee afforded an opportunity of hearing to the representative of the petitioner association considering representation of the petitioner association as well as the facts situation of the matter the committee , has taken decision which is in consonance with the observations made by the Hon'ble Supreme Court in SCA/10693/2006 JUDGMENT the case of PA Inamdar ( ).

It further submitted that the petitioner association has also not made any grievance with regard to decision making process and the impugned decision has been taken after affording an opportunity of hearing . .29 Mr Oza has further submitted that for the academic . year 2005 2006 in all 53 312 students have been , , - appeared in Science Stream of HSC Examination Out . of those students 51 149 students have appeared in , , the GUJCET From the Central Board CBSC ( . ) other Boards in all 2 990 students have appeared in , , GUJCET Thus . , substantial number of students have appeared in GUJCET with a clear understanding that the marks in proportion of 60 40 of the examination : of HSC Examination and GUJCET respectively will be considered and therefore the said policy cannot be , altered at the instance of the petitioner association . .30 Mr KB Trivedi . , learned Advocate General has relied upon the observations made by the Hon'ble Supreme Court in para 19 of the decision of Hariyana Financial Corporation Vs Jagdamba Oil Mill . , reported in 2002 3 SCC 496 He has relied upon para 19 of ) ( . SCA/10693/2006 JUDGMENT the said judgement which reads as follows ; Observations of Courts are not to be read as Euclid's "“.... theorems nor as provisions of the statute These observations must be read in the context in which they appear Judgments of courts are not to be construed as . statutes ...." . Relying upon the aforesaid observations of Hon'ble Supreme Court Mr Trivedi , . learned Advocate General has submitted one is required to read and interpret the observations rendered in the case of TMA Pai Foundation Supra in the contest in which ( ) they appear . It is submitted that attempt on the part of the petitioner to emphasise that they being an association of self financed institutions have a right , to devise any method for admitting the students and that purpose , they would be considering the marks obtained by the students as the qualifying examination of HSC Bard and will neither conduct common entrance test of their own nor will follow combination of test conducted by the HSC Board and common entrance test conducted by State GUJCET is ) ( absolutely illegal and contrary to the observations the Hon'ble Supreme Court in the case of PA Inamdar ( ).

It is submitted by Mr Trivedi . undue reliance is placed on the observations made in SCA/10693/2006 JUDGMENT para 59 of the judgment in TMA Pai ( supra which ) were in fact with reference to determination of merit “ and not determination for the grant of admission in “ ” professional courses standard XII examination It is also submitted by him that para 68 . the judgement in TMA Pai Supra ( ), in fact , Hon'ble Supreme Court qualifies as to what should be the basis for the purpose of short listing the students for admission to professional courses after standard XII examination He has relied upon para 68 of the . said judgement which reads as follows ; , , , , , " .... 68 It would therefore be permissible for university or the Government at the time of granting recognition to require a private unaided institution to provide for merit based selection while at the same time giving the management sufficient discretion in admitting students This can done through various methods For instance a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the StateUniversity and have applied to the college concerned for admission while the rest of the seats may be filled up on the basis of counseling by State agency . , ...."” . , , / .31 It is submitted by Mr Trivedi that it would not be fair . on the part of the petitioner association to interpret the aforesaid judgement of the Hon'ble Supreme Court in the case of TMA Pai ( supra as they like ) more particularly when the Hon'ble Supreme Court , itself has interpreted the said judgment initially in the SCA/10693/2006 JUDGMENT case of Islamic Academy of Education supra and ( ) thereafter in the case of PA Inamdar ( ).

It submitted that the Hon'ble Supreme Court has also taken note of para para 59 of the judgement of TMA Pai ( supra while observing in para 111 of ) judgement of PA Inamdar ( ) that a mere observation or a reasoning leading to the formulation of the ultimate opinion on a disputed question of law cannot be read as a ratio of the decision . Relying upon the aforesaid observation it is submitted that , the one is necessarily required to cull out the ratio decidendi of the judgment of the Hon'ble Supreme Court in the case of TMA Pai in light of what observed in the later who two judgments referred to above and any attempt to do the other way round would amount to doing violence to the Hon'ble Supreme Court's own interpretation , resulting in travesty of justice . He has relied upon para 16 of the judgement in the case of Islamic Academy of Education supra and question No 2 raised in the . ( ) judgement in the case of PA Inamdar ( ) ( 27 as well as para 136 and 137 of the judgment in ) the case of PA Inamdar supra ( ).

SCA/10693/2006 JUDGMENT Para 16 of the judgement in Islamic Academy of ) Education supra reads as under ( ; . / , . . , , “ ”. , " .16 ... In our view what is necessary is a practical approach keeping in mind the need for a merit based selection Paragraph 68 provides that admission by the management can be by a common entrance test held by itself or by StateUniversity We thus hold that the management could select students of their quota either on the basis of the common entrance test conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State eg Medical engineering or technical etc 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 concerned authority and the committee set up hereinafter If any professional college choose not to admit from the common entrance test conducted by the association then the 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 colleges which have chosen to admit as per this test A copy of th merit list will also be forthwith sent to the concerned authority and the committee Selection of students must then be strictly on the basis of merit as per the merit list ...."” . . . , , . , . Para 136 and 137 of the judgement in the in the case of PA Inamdar reads as follow ; . . There is nothing wrong in a entrance test being .136 ... " held for one group of institutions imparting same or similar education Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding such test Out of such common merit list the successful candidates can be identified in chosen for being allotted to different institutions depending on the courses of study offered the number of seats the kind of minority to which the institution belong to and other relevant factors Such an agency conducting the common entrance test CET for short must be one enjoying utmost credibility and expertise in the matter This would better endure the fulfillment of twin objects of transparency and merits CET is necessary in the interest of achieving the said objectives an also for saving the students community from harassment and exploitation Holding of such common entrance test followed by centralized counsellings or in other words single window , ” (

. ) , , . . , . SCA/10693/2006 JUDGMENT system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen ."

. - , . . ... " Pai Foundation has held that minority unaided .137 institutions can legitimately claim unfertred right to chose the students to be followed admission and the procedure - therefor subject to its being fair transparent and non exploitative The same principle applies to nonminority unaided institutions There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair transparent and nonexploitative All the institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above triple tests The State can also provide a procedure of holding a common entrance test in the interest of securing fair and meritbased admissions and preventing maladministration The admission procedure so adopted by private institution or group of institutions if it fails to satisfy all or any of the triple tests indicated hereinabove can be taken over by the State substituting its own procedure The second question is answered accordingly . , ."” . . , , - - - , . .32 It is further submitted by the learned Advocate General the attempt on the part of petitioner association qualifying examination of the standard 12th conducted by HSC Board as common entrance test . It is submitted that the said submission of the petitioner is misconceived erroneous inasmuch concept qualifying examination at the one hand and concept “ ” “ common entrance test on the other hand ” totally distinct and independent of each other since , qualifying examination determination SCA/10693/2006 JUDGMENT eligibility wherein students are supposed to prepare themselves at length in theory as well as practical subjects as against which the common entrance test , , is meant for assessing the intelligence quotient of the candidates for short listing the qualified and eligible candidates in response to a limited number of seats available by testing their future ability which is based on an objective kind of test For the purpose of scope . and purview of common entrance test , the learned Advocate General has relied upon the following observations made by the Hon'ble Supreme Court in para 25 of the judgement in the case of State of MP Vs Gopal D Tirthani . . , reported in 2003 7 SCC 83 ) ( which reads as under ; , . , - The eligibility test called the entrance test or the pre , " .25 PG test is conducted with dual purpose Firstly it is held with the object of Assessing the knowledge and intelligence quotient of a candidate whether he would be able to prosecute postgraduate studies if allowed an opportunity of doing so secondy it is for the purpose of assessing the merit inter se of the candidates which is of vital significance at the conselling when it comes to allotting the successful candidates to different disciplines whether the seats are limited and some disciplines are considered to be more creamy and are more coverted than the others ; , ; ..."” Learned Advocate General has also relied upon the following judgemnt of the Hon'ble Supreme Court for the purpose of distinction between qualifying “ SCA/10693/2006 JUDGMENT examination ” “ common entrance test ” and by relying upon the aforesaid decision and the paragraphs of the said judgement , it is submitted that qualifying “ examination and and common entrance test are two “ ” ” distinct and two different premises and hence “ qualifying examination ” cannot by any stretch of imagination be branded to be common entrance test “ ”;- - ) ()i ( , , , . 1971 1 SCC 607 para 1589 ( State of Andhra Pradesh and another Vs Lavu Narendranath and ors ( )ii . AIR 1981 SC 487 para 17 ( ) . TMA Pai Foundation Vs State of Karnataka ( )iii( & . 1999 7 SCC 120 para 27 28 ( . ) DrPreeti Srivastava Anr vs State of MP And others & . . . . . ) – – .) .33 It is further submitted by the learned Advocate General otherwise for maintaining uniformity in the State at least for the students at large it is expected of the petitioner association to , follow GUJCET conducted by the HSC Board for its 17 institutions when they want to rely upon HSC Board's qualifying examination as common entrance test This . is more particularly when GUJCET is going to be one the bases for admission in the remaining 22 institutions in the State Unfortunately no reasons , . worth the name are coming forth from the petitioner association for not following GUJCET . SCA/10693/2006 JUDGMENT .34 It is also further submitted by Mr Trivedi . , learned Advocate General that some self financed institutions have surrendered their 100 % seats to the State Government , needful which obviously for the reason that thy do not want bother themselves for the huge task of admission process However some self finance institutions have , . surrendered 75 % their total seats while keeping 25 % seats with them and the same is because of the reason that the reservation policy is not to be enforced on the seats not surrendered It is assured . by the learned Advocate General that for filling up the said 25 % the seats , the self financed institutions are supposed to follow the merit list to be declared by JAC PC which will - in turn be scrutinized , approved and endorsed by the said JAC PC T before ( ) - sending the same for enrollment of the University concerned It is also further submitted that the triple . test laid down by the Hon'ble Supreme Court in the case of PA Inamdar supra will be taken care of in ) ( aforesaid eventuality . .35 Dealing with the judgement of the Hon'ble Supreme Court reported in AIR 1972 SC 1375 , learned advocate appearing on behalf of the petitioner , SCA/10693/2006 JUDGMENT Mr Trivedi . , learned Advocate General has submitted that the said judgment is not applicable to the facts the present case as the same visualized the , position as prevailing prior to the rendition of judgment of the Hon'ble Supreme Court in the case of TMA Pai Foundation According to the learned . Advocate General even the judgment reported in AIR , 2004 SC 1861 also does not apply to the facts of the present , dealt with controversy as to whether the State could prescribe higher percentage of the eligibility marks i e 60 . % . admission to professional courses after 12th standard when AICTE had provided 50 %. It is also submitted that merely because in both the aforesaid judgements refer to the mode of admission being on the basis of the marks obtained in qualifying examination the , same cannot be cited to be precedents present case inasmuch as now in view of , judgement of the Hon'ble Supreme court in the case of PA Inamdar ( ), the only choice left to the petitioner association is to choose between common entrance test to be conducted by itself or GUJCET conducted by the HSC Board . Submitting accordingly , he has requested to dismiss the present petition . SCA/10693/2006 JUDGMENT .36 Meeting with the contention on behalf of respondent that no reasons are assigned by the petitioner association for not accepting GUJCET in the combination of 12th standard on the basis admission Mr Dave learned advocate appearing on , , . behalf of the petitioner association has submitted that in fact the petitioner vide its various representations dtd 22 9 2005 22 10 2005 and 21 2 2006 had given , , / / / / / / . cogent reasons for not accepting GUJCET . It submitted that when the petitioner association is entitled to its own procedure for admission in exercise of the said right , the petitioner association has given reasons for not accepting the same it is , no more open for the respondents to sit in appeal the said decision of the petitioner association It . is submitted that it is not permissible for Admission Committee or the State to thrust upon the petitioner any procedure of admission It is further submitted . that directing the petitioner Association to grant admission on the basis of admission process adopted by the State would amounting to thrusting process of admission upon the unaided colleges It is submitted . by the learned advocate appearing on behalf of the SCA/10693/2006 JUDGMENT petitioner association that reliance placed by the respondents on the decision in the judgement reported in 1971 1 SCC 607 supra is absolutely ) ( ( ) unwarrantaed inasmuch as in the said decision the , Hon'ble Supreme Court was concerned with the right concerned University the relevant statute vis a vis the right of the State to insist for - - common entrance test in th discipline of medicine , where for the purpose of admissions a common merit , list was prepared combining the result of different Boards taking qualifying examinations . Similarly , according to Mr Dave learned advocate appearing on , . behalf of the petitioner association , the other decision in the case of Ajay Hansia reported in AIR , 1981 SC 487 and in the case of Dr Preeti Srivastava , . reported in 1999 7 SCC 120 are also not applicable ) ( to the facts of the present case as , in the said decision there is no combined merit list for both the Boards of 12th standard , they do support contention of the petitioner association that there is nothing wrong in preparing merit list on the basis of 12th standard examination . Mr Dave . submitted that the judgement of the Hon'ble Supreme Court in the case of Gopal D Tirthani . , reported in SCA/10693/2006 JUDGMENT ( 2003 7 SCC 83 ) : AIR 2003 SC 2952 relied upon by the respondents also would not be applicable to the present case as in the said decision the Hon'ble , , Supreme Court was concerned with the situation whereunder , graduate admissions medicine , separate entrance undertaken for in service candidates and the open category candidates and when the said practice was questioned on the basis of regulation of MIC the , Hon'ble Supreme Court ruled that it would be proper to have one common entrance test rather than two entrance tests Meeting with the submissions of the . learned Advocate General few self financed institutions have surrendered 75 % of the seats and kept with them 25 % seats and therefore there is no , reason for the petitioner Association and their members not to accept the procedure adopted by the respondent No 1 Admission Committee Mr Dave has . , . submitted that merely because 2 to 3 self financed institutions have surrendered 75 % seats the same is , no ground to surrender seats by other institutions It . is also further submitted by him that according to the information of he petitioner association those 2 to 3 institutions have surrendered 75 % the seats as , SCA/10693/2006 JUDGMENT there is an understanding that so far as remaining 25 % seats are concerned it will be open for those , institutions to grant admission as they like and there will not be any restriction . Submitting accordingly Mr Dave learned advocate , . appearing on behalf of the petitioner association has requested to allow the present petition and grant the relief as prayed for and to allow the petitioner association to grant admission in 1st financed engineering in self financed institutions on the basis of marks obtained in HSC Examination , rather than to burden the students of one more examination . .37 Heard the learned advocates appearing on behalf of the respective parties . .38 Having heard the learned advocates and on going thorough the impugned decision dtd 31 5 2006 of the / / . respondent No 1 Admission Committee it appears . that while directing the petitioner association to conduct the common entrance test separately or in the alternate should follow the concerned entrance SCA/10693/2006 JUDGMENT test conducted by the State over and above standard 12th examination in science stream the admission , committee has solely relied upon the observations made by the Hon'ble Supreme Court in the decision of PA Inamdar ( ) supra and it is observed by the admission committee that common entrance test as “ ” contemplated by the Hon'ble Supreme Court cannot considered 12th standard examination conducted by the Gujarat Higher Secondary Board It . is required to be noted at this stage that it was proposed by the petitioner Association that Self Financed Institutions will be granting admission in 1st engineering financed institutions engineering on the basis of marks obtained in standard 12th examination conducted by the Gujarat Higher Secondary Education Board an they do not want to conduct a separate entrance test Meaning . thereby the 12th , standard examination conducted by the HSC Board itself to be treated as entrance test and to that admission committee has taken the aforesaid decision . Therefore , the question which arises for consideration of this Court is as to whether the decision of the Hon'ble Supreme Court in the case of PA Inamdar supra directs that 12th standard ) ( SCA/10693/2006 JUDGMENT examination conducted by the HSC Board cannot be considered as entrance test and that association of financed institutions is required to conduct a common entrance test over and above the 12th standard examination conducted by the HSC Board . The question which arises for consideration of Court in the present petition is as to whether is it open and or permissible for the petitioner association / admission 1st financed engineering institutions on merits on the basis of marks obtained in 12th standard only which may be considered as a common entrance test The another . question which arises in this petition is as to whether it within jurisdiction admission committee to impart the direction of the aforesaid nature which according to the petitioner association is having virtually effect of thrusting admission process upon the self financed institutions?

The next question which arises is what is meant by the “ common entrance test ? and whether qualified examination ” can be treated as entrance test or not? . .39 Learned advocate appearing on behalf of the parties have mainly relied upon the judgments of the Hon'ble SCA/10693/2006 JUDGMENT Supreme Court in the case of TMA Pai Foundation ( supra Islamic Academy of Education supra and PA ), ( ) Inamdar ( ). As held by the Hon'ble Supreme Court in the case of Hariyana Financial Corporation ( supra the observations of the courts are not to be ), read as Euclid's theorems nor as provisions of the statute and the observations must be in the context in which they appear and the judgments courts construed statutes . Considering the said ratio laid down by the Hon'ble Supreme Court one is required to read and interpret the observations made by the Hon'ble Supreme Court in the cases of TMA Pai Foundation Islamic Academy , of Education and PA Inamdar ( supra in the context ) they appear . Therefore , first of all one has appreciate how and for what the matter was referred to the bench of seven judges and what were the issues before the Hon'ble Supreme Court in the case of PA Inamdar . It appears from the order passed by the Hon'ble Supreme Court that when the matter was referred to seven judges bench two questions had , arisen namely ( ) i fixation of quota of admission / students respect unaided professional institutions and ( ) to who should hold the SCA/10693/2006 JUDGMENT entrance examination for admission into the said institutions . The issue with regard to holding of common entrance test was referred considering para 16 of the judgment in the case of Islamic Academy . It appears from the aforesaid judgments that question had arisen whether each individual financed institutions can be permitted to have a separate common entrance test or common entrance test to be conducted by an association of all colleges of a particular type in their State In para 16 in . Islamic Academy's case the Hon'ble Supreme Court , considered the issue with regard to holding of common entrance . Para 16 of the said judgement reads as follows ; . / , . . , , “ ”. , In our view what is necessary is a practical approach " .16 ... keeping in mind the need for a merit based selection Paragraph 68 provides that admission by the management can be by a common entrance test held by itself or by StateUniversity We thus hold that the management could select students of their quota either on the basis of the common entrance test conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State eg Medical engineering or technical etc 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 concerned authority and the committee set up hereinafter If any professional college choose not to admit from the common entrance test conducted by the association then the 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 colleges which have chosen to admit as per this test A copy of th merit list will also be forthwith sent to the concerned . . . . , , . , SCA/10693/2006 JUDGMENT authority and the committee Selection of students must . then be strictly on the basis of merit as per the merit list ...."” Para 11 of the order in PA Inamdar and other Vs . State of Maharashtra and others reported in 2004 ( ) 8SCC 139 by which the matter was referred to the , larger bench Seven Judges Behcn reads as under ) ( ; " .11 of the following sentences in Islamic Academy case , P728 para 6 The necessity of forming the association was by reason SCC ; ( ). . . / ”. . “ In our view what is necessary is a practical approach keeping in mind the need for a merit based selection Paragraph 68 provides that admission by the management can be by a common entrance test held by itself or by the StateUniversity The words common entrance test clearly indicate that each institute cannot hold a separate test We thus hold the management could select students of their quota either on the basis of a common entrance test conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State eg Medical engineering or technical etc The common entrance test held by the association must be for admission to all colleges of that type in the State . , . . “ ” “ , , , ." ” , At this stage para 26 of the decision in PA Inamdar , is required to be referred to which reads as follows ; . . " .26 These matters have been directed to be placed for hearing before a Bench of seven Judges under orders of the Chief Justice of India pursuant to the order dated 1552004 in PA Inamdar Vs State of Maharashtra and order dtd2972004 in Pushpagiri Medical Society Vs State of Kerala The aggrieved persons before us are again classifiable in one class that is unaided minority and nonminority institutions education The issues arising for imparting professional ; decision before us are only three / / . / / . . , . . - , i the fixation of quota of admissionstudents in / () ; respect of unaided professional institutions ” “ ii the holding of examinations for admissions to such ( ) SCA/10693/2006 JUDGMENT colleges that is who will hold the entrance tests and , ; , ( )iii the fee structure ." Thus issues before the Hon'ble Supreme court in , PA Inamdar case more particularly issue No 2 was . , with regard to holding of examination for admission to such Self Finaced Institutions / colleges i e who . . will hold the entrance test . It appears from the judgement of the Hon'ble Supreme Court in PA Inamdar ( ) the said issue arose on account of the fact that some of the colleges which did not join the association of self financed colleges claimed right to hold separate entrance , relying upon the decision of the Hon'ble Supreme Court in TMA Pai Foundation ( Supra ).

Therefore it appears that the issue posed before , the Hon'ble Supreme Court for consideration in PA Inamdar supra was who should hold the common ) ( , entrance test? e g Whether any individual colleges . . can be permitted to conduct common entrance test separately or by the association of he management . At this stage para 27 of the judgment in PA Inamdar ( supra and the questions framed by the ) Hon'ble Supreme Court on the basis SCA/10693/2006 JUDGMENT reference is required to be considered The question . No 2 which is relevant for the purpose of present . petition reads as follows ; ( " and nonminority - Whether unaided minority educational institutions are free to device their own admission procedure or whether the directions made in Islamic Academy for compulsory holding an entrance test by the State or an association of institutions and to choose there from the students entitled to admission in such institutions can be sustained in light of th law laid down in TMA Pai Foundation? , ". ) The question No 2 is answered by the Hon'ble . Supreme Court in PA Inamdar ( supra in paras 136 ) , 137 and 138 which are reproduced hereinbelow ; . . , . (

" There is nothing wrong in a entrance test being .136 ... held for one group of institutions imparting same or similar education Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding such test Out of such common merit list the successful candidates can be identified in chosen for being allotted to different institutions depending on the courses of study offered the number of seats the kind of minority to which the institution belong and other relevant factors Such an agency conducting the common entrance test CET for short must be one enjoying utmost credibility and expertise in the matter This would better endure the fulfillment of twin objects of transparency and merits CET is necessary in the interest of achieving the said objectives an also for saving the students community from harassment and exploitation Holding of such common entrance test followed by centralized counsellings or in other words single window , system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen

) , . . . , . ." " Pai Foundation has held that minority unaided .137 institutions can legitimately claim unfertred right to chose ... SCA/10693/2006 JUDGMENT - , . . the students to be followed admission and the procedure - therefor subject to its being fair transparent and non exploitative The same principle applies to nonminority unaided institutions There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair transparent and nonexploitative All the institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above triple tests The State can also provide a procedure of holding a common entrance test in the interest of securing fair and meritbased admissions and preventing maladministration The admission procedure so adopted by private institution or group of institutions if it fails to satisfy all or any of the triple tests indicated hereinabove can be taken over by the State substituting its own procedure The second question is answered accordingly , . ."” . . , , . - - - , , " It needs to be specifically stated that having regard .138 to the larger interest and welfare of th students community to promote merit achieve excellence and curb malpractice it would be permissible to regulate admissions by providing a centralized and singlewindow procedure Such a procedure to a large extent can secure grant of merit , based admissions on a transparent basis Till regulations are framed the Admission Committees can oversee admissions so as to ensure that merit is not the casualty , . ."” . , - - , At this stage para 16 of the judgement of Hon'ble Supreme Court in Islamic Academy of Education clarifying TMA Pai judgement ( supra is ) required to be considered which reads as under ; . / , “ ”. , In our view what is necessary is a practical approach " .16 ... keeping in mind the need for a merit based selection Paragraph 68 provides that admission by the management can be by a common entrance test held by itself or by StateUniversity We thus hold that the management could select students of their quota either on the basis of the common entrance test conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State eg Medical engineering or technical etc 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 concerned authority and the committee set up hereinafter If any professional college choose not to admit from the common entrance test conducted by the association then the college must necessarily admit from the common entrance , , . . . . , , . , SCA/10693/2006 JUDGMENT 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 colleges which have chosen to admit as per this test A copy of the merit list will also be forthwith sent to the concerned authority and the committee Selection of students must then be strictly on the basis of merit as per the merit list ...."” . . At this stage para 20 of the judgement in the case of PA Inamdar is also required to be considered which , reads as under ; , . , . Before we embark upon dealing with the issues posed " .20 before us for resolution we would like to make a few preliminary objections as a preface to our judgment inasmuch as that would outline the scope of the controversy with which we are actually dealing her At the very outset we may state that out task is not to pronounce our own independent opinion on the several issues which arose for consideration in Pai Foundation Even if we are inclined to disagree with any of the finding amounting to declaration of law by the majority in Pai Foundation we cannot that being a pronouncement by an eleven Judge Bench we are bound by it We cannot express dissent or disagreement howsoever we may be inclined to do so on any of the issues The real task before us is to cull out the ratio decidendi of Pai Foundation and to examine if the explanation or clarification given in Islamic Academy runs counter to Pai Foundation and if so to what extent If we find anything said or held in Islamic Academy in conflict with Pai Foundation we shall say so as being a departure from th law laid down by Pai Foundation and on the principle of binding efficacy of precedents overrule to that extent the opinion of the Constitution Bench in Islamic Academy ; , . , . , ."” . .40 In para 59 of the judgement in TMA Pai Foundation ( supra the Hon'ble Supreme Court has observed that ), usually determined admission professional and higher educational qualification by either marks that the students obtains in qualifying examination or School Leaving Certificate SCA/10693/2006 JUDGMENT followed by interview or by common entrance test conducted by the institution , in the case of professional colleges , by government agencies . In para 68 the Hon'ble Supreme Court has further , observed that unaided professional institutions are entitled to autonomy in their administration while at , the same time they do not forgo or discard principle of merit . It would therefore be permissible for the , , university or government at the time of granting recognition to require a private unaided institution to , provide for merit based selection while at the same , time giving the management sufficient discretion in , admitting students . In para 68 the Hon'ble Supreme Court observed that admission by the management can be by common entrance test held by itself or by / the State University . The question as to how the management of both the minority and non minority - professional colleges , can admit th students in th college allotted them further considered by the Hon'ble Supreme Court in Islamic Academy supra and in para 16 the Hon'ble Suprme ( ) Court observed that majority judgement in TMA Pai case provides that in professional colleges admission must be on merits and it is further observed by the SCA/10693/2006 JUDGMENT Hon'ble Supreme Court that if a student is required to appear at more than one entrance test , it would lead to a great hardship The application fees charged . by each institute even though they may be only Rs 500 to Rs 1000 for each institute it , . . imposes a heavy burden on the student who will necessarily have to apply to a number of colleges It is further . observed by the Hon'ble Supreme Court students would have to arrange for transport and to and stay various places if they have to appear in individual test conducted by each college If a . student has to go for to each institute it , possible that he she may not be able to reach in , / time venue of , test of a particular institute With . reference to the above context , the Hon'ble Supreme Court further observed that in our view what necessary is a practical approach keeping in mind the need for merit based selection Considering para 68 .” of the judgement of the Hon'ble Supreme Court TMA Pai case the Hon'ble Supreme Court in Islamic , Academy supra ( ) has further observed as under ;

" The words common entrance clearly indicate that each institute cannot hold a separate test We thus hold that the management could select students of their quota either on the basis of the common entrance test conducted by the . ,

, SCA/10693/2006 JUDGMENT , , . , , . . . . State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State eg medical engineering or technical etc , 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 or after intimation to the concerned authority 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 colleges which have chosen to admit as per this test A copy of the merit list will also be forthwith sent to the concerned authority and the Committee Selection of students must then be strictly on the basis of merit as per that merit list Of course as indicated earlier minority , colleges will be entitled to fill up their quota with their own students on the basis of inter se merit amongst those students The list of students admitted along with the rank number obtained by the students 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 recognitionaffiliation may also be withdrawn . . , . , , . . . ." / . Now considering para 68 of the decision in TMA Pai ( ), para 16 of the judgment in Islamic Academy ( ) one of the question / issue was referred to seven judges bench in PA Inamdar and issue No 2 came to be framed which is . stated herinabove and to that the Hon'ble Supreme Court PA Inamdar ( supra in para 136 and 137 held and ) observed with regard to holding of common entrance . Considering the above facts it is clear that before , SCA/10693/2006 JUDGMENT the Hon'ble Supreme Court in PA Inamdar supra ( ), question which arose for consideration was with regard to holding of a common entrance test i e who should . . hold the common entrance test e g Whether individual . . institution can be permitted to conduct the entrance individually or common entrance test should be conducted by the association and considering the above the Hon'ble Supreme Court made certain observations with regard to common entrance test . Therefore the question which has arisen in the present , petition i e whether when the association of . . management wants to admit students on the basis of the marks obtained in standard 12th examination without holding any additional common entrance test and to treat the 12th standard examination conducted by the HSC Board itself as entrance test , permissible or not? and considering the above issue , arisen present petition , considering the above three decisions of the Hon'ble Supreme Court , it appears that the Hon'ble Supreme Court has never directed in PA Inamdar supra that the ( ) association of self financed institutions must conduct common entrance test over and above standard 12th examination conducted by the State agency when the SCA/10693/2006 JUDGMENT association wants to grant admission on merits on the the marks obtained standard 12th examination Therefore the decision of the admission . , committee to direct th petitioner association to conduct common entrance test over and above standard 12th examination or in the alternate to grant admission considering the marks obtained in standard 12th and GUJCET i e as per the procedure adopted by the State . . quota for admission in government aided institutions , relying upon the decision in PA Inamdar ( ) misinterpreting the observations made by the Hon'ble Supreme Court in para 136 and 137 On consideration . of the observations and directions made by the Hon'ble Supreme Court in para 136 137 and 138 it is observed , , by the Hon'ble Supreme Court the object of common entrance test would be to achieve the object of transparency and merits and CET is necessary in the interest of achieving the aforesaid objectives nd also savings and community from harassment and exploitation and holding such common entrance test must be followed by the centralized counselling or other words single window system regulating admission . Thus emphasises by the Hon'ble Supreme Court with , regard to the common entrance test was to achieve SCA/10693/2006 JUDGMENT the procedure in a fair transparent and non exploitative , - manner . It is also held by the Hon'ble Supreme Court that the State can also provide procedure for holding a common entrance test in the interest of securing fair and merit admission prevent mal administration and when the admission procedure so adopted by private institution or group of institutions if , it fails to satisfy all or any of the triple test i e fair . . , transparent and non exploitative then in that case the , - same can be taken over by the State substituting its own procedure . Therefore considering the decision of , the Hon'ble Supreme Court of TMA Pai , Islamic Academy and PA Inamdar supra Mr Dave learned advocate appearing ), ( . on behalf of the petitioner association is right in his submission that the issue which has arisen in the present petition was not before the Hon'ble Supreme , Court and there is no direction from the Hon'ble Supreme Court that the Association of Self Financed Institutions must conduct common entrance test over and above standard 12th examination conducted by the HSC Board when the self financed institutions want to give admission on merit on the basis of the SCA/10693/2006 JUDGMENT obtained standard 12th examination conducted by HSC Board meaning thereby standard , 12th examination conducted by the HSC Board as entrance test . .41 Now in , view of the above facts and the findings by this Court what is required to be now considered , is what is meant by common entrance test and the purpose for conducting the common entrance test . In para 68 of the decision in TMA Pai ( ), The Hon'ble Supreme considered the question with regard to the rights of the unaided professional institutions and it is observed by the Hon'ble Supreme Court that unaided professional institutions are entitled to autonomy in their administration while , at the same time they should not forgo or discard , the principle on merits and therefore it would be , permissible for the University or the Government at the time of granting recognition to require private unaided institutions to provide for merit based selection while at the same time giving management , , sufficient discretion in admitting the students . It appears that thereafter , further issue arose and the SCA/10693/2006 JUDGMENT some minority self financed institutions were of the opinion that they are entitled to conduct common entrance test individually college wise and the said - question came to be considered further by the Hon'ble Supreme Court in the case of Islamic Academy supra and as to how the management of ( ) both minority and non minority professional colleges , - can admit students came to be considered in para 16 the said judgment and it is observed by the Hon'ble Supreme Court that if a student is required to appear at more than one entrance test , it would lead to great hardship The application fees charged . by each institute would impose a heavy burden on , the students who will necessarily will have to apply to a number of colleges and the students would have to arrange for transport from and to and stay at various places if they have to appear for individual tests conducted by each college It . is also further observed by the Hon'ble Supreme Court that if a student has to go for to each institute it , possible that he she may not be able to reach in / time venue of test of a particular institute and with reference to the same the Hon'ble Supreme Court , has further observed and held that what is necessary SCA/10693/2006 JUDGMENT is practical approach keeping in mind the need for merit based selection Considering para 68 of . judgment in TMA Pai ( supra by which the Hon'ble ) Supreme Court observed that the admission by the management can be by a common entrance test held “ itself or by the State University / ”, the Hon'ble Supreme Court also further observed in para 16 of the Islamic Academy supra that the words common ) “ ( entrance test ” clearly indicate that each institute cannot hold a separate test and ultimately , Hon'ble Supreme Court held that th management should 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 conducted by an association of all the colleges of a particular type in their State e g Medical engineering . . , or technical etc and the common entrance test held . by the association must be for admission to all the colleges of that type in the State It is also further . held by the Hon'ble Supreme Court that the option of choosing between either of these tests must be , exercised before issuing of prospectus and after intimation concerned authority committee . Thus , Hon'ble Supreme Court SCA/10693/2006 JUDGMENT emphasized that the selection of the students must be strictly on the basis of merit The aforesaid para . 16 further came to be considered by the Hon'ble Supreme Court in PA Inamdar supra on a reference ( ) to seven judges bench as stated above and the question NO 2 came to be framed by the Hon'ble . Supreme Court that whether unaided minority and ( non minority education institution are free to device ) - own admission procedure or whether directions made in Islamic Academy for compulsory holding an entrance test by th State or Association of institution and to choose therefrom the students entitled to admission in such institutions can be sustained in light of the law laid down in TMA Pai Foundation?

The said question No 2 came to be . answered by the Hon'ble Supreme Court in PA Inamdar ( supra in para 136 of the ) said judgment . Para 136 137 and 137 of the judgment in the case , of PA Inamdar reads as under ; - " Whether minority or nonminority institutions there .136 may be more than one similarly situated institutions imparting education in any one discipline in any State The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on the same or different dates and there may be a clash of dates If the same candidate is required to appear in several tests he would be subjected to unnecessary and avoidable . , , , . SCA/10693/2006 JUDGMENT . . , expenditure and inconvenience There is nothing wrong in a . entrance test being held for one group of institutions imparting same or similar education Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding such test Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered the number of seats the kind of minority to which the institution belongs and other relevant factors Such an agency conducting the common entrance test CET for short must be one enjoying utmost credibility and expertise in the matter This would better endure the fulfillment of twin objects of transparency and merits CET is necessary in the interest of achieving the said objectives and also for saving the students community from harassment and exploitation Holding of such common entrance test followed by centralized counselling or in other words single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen , ” (“ . ."” , . ) , . . . - , . . ... Pai Foundation has held that minority unaided .137 " institutions can legitimately claim unfetered right to chose the students to be followed admission and the procedure - therefor subject to its being fair transparent and non exploitative The same principle applies to nonminority unaided institutions There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair transparent and nonexploitative All the institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above triple tests The State can also provide a procedure of holding a common entrance test in the interest of securing - fair and meritbased admissions and preventing mal administration The admission procedure so adopted by private institution or group of institutions if it fails to satisfy all or any of the triple tests indicated hereinabove can be taken over by the State substituting its own procedure The second question is answered accordingly , . . ."” , , . . - - , , " It needs to be specifically stated that having .138 regard to the larger interest and welfare of the students community to promote merit achieve excellence and curb , malpractice it would be permissible to regulate admissions by providing a centralized and single window procedure Such a procedure to a large extent can secure grant of merit based admissions on a transparent basis Till regulations are framed the Admission Committee can oversee admissions so as to ensure that the merit is not the casuality , , . ."” , . Thus considering , the aforesaid 3 judgments of the SCA/10693/2006 JUDGMENT Hon'ble Supreme Court in the case of TMA Pai , Islamic Academy and PA Inamdar ( supra what ) emerges the Hon'ble Supreme Court emphasized that the selection of students / admission by the unaided professional institutions must be on the basis of merit as per the merit list and admission procedure adopted by the private institution or a group of institutions must satisfy all or any of the triple test . . i e fair , transparent and non exploitative - . The Hon'ble Supreme Court has also observed and held that it would be permissible regulate admissions by providing a centralized and single window procedure . .42 Now it is required to be considered that what meant by the common entrance test The aim and . object for conducting the common entrance test was to apply a common yardstic and to prepare a merit list for the purpose of admission in a situation where common or composite merit list for admission were prepared on the basis of qualifying examination undertaken by the different bodies and considering the contentions that it would be against the concept of equality under Article 14 of the Constitution of SCA/10693/2006 JUDGMENT India . To have a common merit list of those who are not alike having passed qualifying examination from different Boards and therefore need was felt to have , a common entrance test for all those students who have passed their qualifying examination undertaken by different boards so that equal opportunity can be given to all the students Now therefore considering , , . the aim and object for holding common entrance test , the facts and the issue arise in the present petition are required to be considered . In the State of Gujarat standard 12th , examination is conducted by the Gujarat Higher Secondary Board and the same is common to all The credibility of . examination of standard 12th conducted by the HSC Board is not doubted by the respondent No 1 Admission . Committee Those persons who passed the examination . of standard 12 from HSC Board are eligible to get admission in 1st year engineering course So far as . students who passed standard 12 examination from CBSC is concerned there is separate , quota so far as the Government State is concerned . Therefore there is no question of considering their , cases along with the students who have passed 12th SCA/10693/2006 JUDGMENT standard examination from HSC Board and therefore , for the purpose of admission in 1st year engineering course all those students those who have passed 12 th standard examination from HSC Board will considered equally It . is not in dispute that the self financed institutions have got their autonomy so far as admission procedure and administration are concerned and those rights are recognized by the Hon'ble Supreme Court in various decisions As the same is . not disputed , this court is not referring to those judgments As per the decision of the Hon'ble Supreme . Court , it is for the self financed institutions to evolve their own procedure for admission However only thing , . is that the selection of students must be on merit basis and the procedure must be fair , transparent and non exploitative and there - should be single window system so that the students may not have to suffer . Now while exercising their rights of adopting their own , procedure for admission the petitioner association and , its members have decided to grant admission on merits on the basis of the marks obtained in standard 12th examination conducted by the HSC Board and to treat the said examination as entrance test so as not burden the students of one another entrance test . It is SCA/10693/2006 JUDGMENT also further provided that the admission would be on single window system and the said procedure is mentioned in the prospectus It is required to be noted . from beginning i e . . from July 2005 the , petitioner association approached respondent Committee nd informed that the academic year 2006 2007 they propose to give admission on the basis , - the marks obtained in 12th standard examination conducted by the HSC Board without holding a , separate common entrance test However there was no . , response from the respondent Admission Committee till March 2006 and for , the first time the respondent Admission Committee informed petitioner association to conduct a separate common entrance . It is required to be noted that even according to the learned advocate appearing on behalf of respondent Admission Committee communication in the , month of March 2006 was not a final decision and , therefore a request was made on 29 5 2006 when the , / / present petition was heard to allow the respondent Admission Committee a decision accordingly the respondent No 1 Admission Committee . , decision impugned communication dtd 31 5 2006 by which the respondent , / / . SCA/10693/2006 JUDGMENT No 1 Admission Committee has directed the petitioner . association to hold separate common entrance test , failing which admission to be granted adopting the procedure of the State Government for State quota i e . . 60 % the marks obtained 12th standard examination conducted by HSC Board and 40 % of the marks obtained in GUJCET Common Entrance Test held ( by the State ).

It is required to be noted that the the respondent petitioner association has clearly submitted that the admission will be strictly on the merits on the basis of marks obtained in 12th standard examination conducted by the HSC Board The said procedure be . supervised and monitored by the respondent No 1 . admission committee There shall be re shuffling once . - and there shall be single window system It . is also required to be noted at this stage that there is no allegation by the respondent No 1 admission committee . in the impugned decision dtd 31 5 2006 that / / . procedure for admission will not satisfy the triple test as decided by the Hon'ble Supreme Court . i e fair . , transparent and non exploitative It is also required to . - be noted at this stage that even the State Government itself so far as its quota and Government Aided - Institutions are concerned would be granting admission , SCA/10693/2006 JUDGMENT on the basis of 60 marks according to the petitioner ( % Association it would be 79 20 . %) obtained in the very 12th standard examination conducted by the HSC Board , against which the petitioner association proposes to , grant admission on the basis of 100 marks obtained % in 12th standard examination conducted by the HSC Board Therefore so far as even the State Government . , concerned , objection considering the marks obtained in 12th standard examination conducted by HSC Board but so far as the , State Government is concerned they will consider 60 & , of marks of the said 12th standard examination . Therefore , the credibility and credentiality of 12th standard examination conducted by HSC Board is not doubted As stated hereinabove the impugned decision . , is taken by the respondent No 1 Admission Committee . solely relying upon the judgement of the Hon'ble Supreme Court in the case of PA Inamdar Supra and ) ( as stated hereinabove the issue which is in the present , case was not before the Hon'ble Supreme Court in PA , Inamdar ( ).

The issue involved in the present petition and the issue involved in the decision of PA Inamdar supra both are quite different ) ( . SCA/10693/2006 JUDGMENT .43 Therefore , stated hereinabove and even not disputed by the respondent admission committee that is well within the rights of the self financed institutions evolve procedure admission In a case where there are more qualifying . examinations by the different Boards and unequals are not treated equally and with a view to see that equal opportunity is given to one and all , it was felt necessary to have a common entrance test and that too not individually by the self financed institutions but by a group of institutions and or association of / financed institutions of a same or similar type and that too by providing a centralized and single window system so that the students may not have to suffer With a view to see that the students may not . be burdened of one more examination a decision has , petitioner association respective self financed institutions that instead of conducting another entrance , examination of 12th standard conducted by the Gujarat Higher Secondary Examination Board itself be treated as entrance test and the admission to be given strictly on merits on the basis of merit prepared and the entire procedure to be supervised SCA/10693/2006 JUDGMENT and monitored by the respondent No 1 admission . committee and not only , only after approval , the students can be enrolled Therefore it . , cannot be said that such procedure is in any way contrary to the observations of the Hon'ble Supreme Court in PA Inamdar Supra The only thing which is ).

( required to be observed is that such procedure must satisfy all or any of the triple test . i e being fair . , transparent and non exploitative and it must be - centralized and single window system It is required . to be noted that the learned advocate appearing on behalf of the petitioner association has submitted that over and above what is stated hereinabove i e the . . entire admission procedure to be supervised and monitored respondent . No 1 admission committee the students will be enrolled only after ; the approval of the respondent No 1 admission . committee and the entire procedure would be centralized single window system he , submitted that any other stringent conditions also can be imposed by this Court upon the petitioner association with a view to avoid any chance of mal practice or to ensure that the merit is not casualty . As stated hereinabove it , is not the case of SCA/10693/2006 JUDGMENT respondent . No 1 admission committee impugned decision dtd 31 5 2006 that by the aforesaid / / . procedure fair , , transparent and non exploitative test - will not be satisfied . .44 Learned advocate appearing behalf respondents heavily relied observations made in para 136 , and 137 of judgment in the case of PA Inamdar ( supra which ) are reproduced hereinabove and relying upon the , , submitted that holding of common entrance test by the association / financed institution is must . It is required to be noted that as held by the Hon'ble Supreme Court in the case of Hariyana Financial Corporation ( ), observations and or the judgment is required to be / read in the context in which they appear As stated . hereinabove the observations of the Hon'ble Supreme , Court in the aforesaid paras of the judgment in PA Inamdar supra are with reference to the controversy ) ( as to whether any individual unaided institute can be permitted conduct common entrance separately or not and in that context , the Hon'ble Supreme Court has made observation with regard to SCA/10693/2006 JUDGMENT holding of common entrance test by association of the self financed institution or group of institutions and observed that the said admission procedure should satisfy the triple tests i e it should be fair . . , transparent and non exploitative Therefore what . , - required to be considered is that admission procedure by the petitioner Association for the purpose of admission must satisfy the aforesaid triple tests and admission must be based on merits only As stated . above by permitting the petitioner association and or , / the members of the petitioner association i e self . . financed institutions in engineering to admit students on merits considering the marks obtained in 12th standard examination conducted by HSC Board under , the supervision and monitoring of the respondent No 1 admission committee by a centralized and single . window procedure and with appropriate conditions which are imposed by this court hereinafter , the said procedure would certainly satisfy the triple tests as laid down by the Hon'ble Supreme Court in PA Inamdar supra i e the said procedure would be fair ) . ( . , transparent and non exploitative and it will ensure - that the merits will not be casualty . SCA/10693/2006 JUDGMENT .45 It the contention on behalf of the learned Advocate General that no cogent reasons have bee given by the petitioner association for not following GUJCET It is required to be noted that as held by the . Hon'ble Supreme Court in TMA Pai , Islamic Academy and PA Inamdar supra it is well within the rights of ), ( the management and all self financed institutions would have autonomy to evolve their own procedure for admission subject to satisfying the triple tests . i e it should be fair . , transparent and non exploitative - . Therefore by making the aforesaid submissions it will , , be thrusting upon the petitioner association and the financed institutions to follow the GUJCET i e . . common entrance test conducted by the State Government which is not permissible , . It is ultimately for the self financed institutions to evolve its own procedure for admission subject to compliance of the condition that may be imposed by this court and the merits is not given go bye If any procedure for . - admission which is found fair , transparent and non - exploitative and the admission are given on merit base and it is by centralized single window system it , is well within the right of the self financed institutions to evolve such procedure As stated hereinabove , . SCA/10693/2006 JUDGMENT even the respondent No 1 admission committee and . the State Government will be giving admission in / the Government Aided Colleges considering the marks obtained by a student in 12th standard examination conducted by the HSC Board however , , to the extent of 60 %, against which th petitioner , association will be giving weightage to the said examination of standard 12th conducted by HSC Board to the extent of 100 %. It is also required to be noted that it is not correct that no reasons are given by the petitioner association However . , as stated hereinabove it is immaterial as it is well within the , , domine of the self financed institutions to follow or not to follow the GUJCET and even as conceded by the learned Advocate General nobody can thrust the , common entrance test conducted by State Government Aided College upon - the self financed institutions . .46 The next submission on behalf of the respondents is that the 12th standard examination conducted by the HSC Board at the most can be considered as qualifying examination and cannot be termed as common entrance test . It is required to be noted at SCA/10693/2006 JUDGMENT stage that the aim and object for holding common entrance test is to see that equal treatment is given to all students who have passed 12th standard examination from different Boards so that unequal treated equally . As stated hereinabove it , is ultimately for the self financed institutions and their association to have their own admission procedure subject satisfying aforesaid triple test with certain conditions Therefore , . according to the respondents over and above the qualifying examination if one another examination is , taken then and then only it can be said to be common entrance test which can not be accepted , . The relevant consideration would be that there must be common entrance test to all for the purpose of granting admission and it might be that when there is only one board taking examination of standard 12 and marks obtained by all the students in the said examination conducted by one board are considered for the purpose of admission it can be considered as , common entrance test . It is not that over and above 12th standard examination , another examination is taken only in that case it can be considered as common entrance test . SCA/10693/2006 JUDGMENT .47 The learned Advocate General has relied upon the decision of the Hon'ble Supreme Court in the case of State of Andhra Pradesh and another Vs . Lavu Narendranath and ors ., reported in 1971 1 SCC 607 ) ( in support of his submission thsat common entrance test is must However . , it is required to be noted that the question which came to be considered by the Hon'ble Supreme Court was the purpose of admission and a merit list was prepared combining , the result of different Boards taking over qualifying examination and therefore as rightly submitted by , the learned advocate for the petitioner association , the observations in the said judgment would not apply to the facts of the present case With the . similar reasoning , decision the Hon'ble Supreme Court in the case of Ajay Hasia and Dr Preeti Srivastva will not apply to the facts of the . present case . .48 For the reasons stated hereinabove and considering the judgment of the Hon'ble Supreme Court in the case of TMA Pai , Islamic Academy and PA Inamdar SCA/10693/2006 JUDGMENT ( ), and recognition of the rights of the self financed institutions to evolve their own procedure for admission and autonomy given to the self financed institutions when it has been decided by , petitioner association of self financed institutions to admission the 1st financed engineering institutions strictly on merits and marks obtained in 12th standard examination conducted by the Gujarat Higher Secondary Board treating it as an entrance and when entire admission procedure to be supervised and monitored by the respondent No 1 Admission Committee and the said . procedure to be centralized and single window system and on whatever the conditions imposed by this Court with a view to see that the merit is not - given go bye and it cannot be said that it will not satisfy the aforesaid triple test At this stage para 59 , . of the TMA Pai supra is required to be referred to ) ( wherein the Hon'ble Supreme Court observed that merit is usually determined , admission professional higher education colleges by either the marks that the student obtains , the qualifying examination or school leaving certificate stage followed by the interview or by , SCA/10693/2006 JUDGMENT common entrance test conducted by the institution or in the case of professional colleges by Government , agencies Thus to treat the qualifying examination as . , an entrance test is permissible It is also required to . be noted at this stage that with a view to see that even in future there is no uncertainty the learned , , advocate appearing on behalf of the petitioner association has made a statement at bar that petitioner association and or member of the petitioner / association will be granting admission in 1st year engineering institutions on the basis of the marks obtained in 12th standard examination conducted by HSC Board and in future next years also they will , adopt the same procedure and will follow the same not will not change the procedure . .49 For the reasons stated as aforesaid the , petition succeeds The impugned communication dtd 31 5 2006 . / / . issued respondent No 1 . – Admission Committee directing the petitioner association to conduct common entrance test by the petitioner association 12th standard examination conducted the Gujarat Higher Secondary Board as entrance test , failing which to SCA/10693/2006 JUDGMENT adopt procedure adopted by the State Government for filling up the seats in Government Aided Colleges - i e to give admission on the basis of 60 marks . % . obtained in 12th standard examination and 40 % of the marks obtained in GUJCET is hereby quashed and set , . The petitioner association and the members of the petitioner association i e Self Financed Engineering . . Institutions who are members of the petitioner association are hereby permitted to grant admission , in the 1st year Self Financed Engineering Institutions by preparing merit list on the basis of marks obtained in 12th standard examination conducted by the HSC Board on merits and the same shall be centralized and single window procedure on the following conditions ; The ( )i transparent and non exploitative and it should be on merit base procedure must admission . . - , ( )ii The entire admission procedure will be supervised and monitored by the respondent No 1 Admission respondent No 1 Admission . Committee Committee to oversee the admission process so as to ensure that the merit is not casualty . . ( )iii The names of the students will be enrolled only SCA/10693/2006 JUDGMENT after the admissions are approved by the respondent . No 1 Admission Committee . ( )iv All the Self Financed Institutions will permit shuffling once during the academic year after - Colleges is over - of admission procedure in Government Aided . ( )v the time of admission and re shuffling At particulars of merit and the merit list prepared shall be given wide publicity inclusive of publication in institutions and widely circulated website of individual two local news papers such as Sandesh and Gujarat one English Daily news paper having Samachar wide circulation & , - . ( ( ( )vi / - . . financed candidate institution and or parents aggrieved candidate Any complaint with regard to non issuance of admission form and or not accepting the application and would have a form would be viewed seriously consequence of cancellation of the recognition of the Any concerned complaint With regard to the same can be made by No 1 . aggrieved Admission Committee straightway and the admission committee shall look to the same and call for the the documents explanation and all relevant particulars from the concerned institute with regard to admission immediately and the concerned institute shall respond to the same within a period of one week of receipt of such communication from the respondent . No 1 Admission Committee the respondent No 1 Admission thereof totality Committee . expeditiously as possible considering . decision appropriate respondent / / , )vii If it is found that any student has been admitted dehors the merit penalty can be imposed on such institute affiliation may also be withdrawn and in appropriate recognition / , , . )viii , As agreed the members of the petitioner association shall give admission by following the procedure on the basis of merits prepared on the basis of marks obtained by the students in 12th standard examination conducted by HSC Board not only for this year but also for next future years also . SCA/10693/2006 JUDGMENT So far as those Self Financed Institutions who have surrendered 75 % their total seats while keeping 25 % seats with them are concerned as assured by , the learned Advocate General , they are supposed to follow the merit to be declared by the Joint Admission Committee JAC PC which will ) ( - in turn be scrutinized and approved by the said Joint Admission Committee [( - JAC PC T ( )] before sending the same for enrollment to the University concerned and even admission on 25 % the seats would also be overseen , supervised and monitored respondent No 1 Admission Committee with a view . to ensure that the merit is not casualty and there may not be any maladministration and that the said procedure fulfills the triple tests of being fair , transparent and non exploitative - This will take care the apprehension on the part of the petitioner Association institutions who surrendered 75 % seats keeping 25 % seats with them may give admission as they like The respondent No 1 . . Admission Committee is , therefore directed to see , financed institutions who surrendered their 75 % to the State quota SCA/10693/2006 JUDGMENT keeping 25 % seats with them may not give admission dehors the merits and may not indulge into any maladministration . It is apprehended by Mr Dave , . learned advocate appearing behalf petitioner Association that so far as those institutions are concerned they have already given admission , even before the admission process is started Learned . Advocate General has assured that the State will look into the same very seriously Even the respondent . No 1 Admission Committee is also directed to look . into the said allegation and is directed to see that those self financed institutions who have surrendered their 75 % seats may not give admission on remaining 25 % seats dehors the merits and or by way of back / - door Rule is made absolute to the aforesaid extent . . However there will be no order as to costs , . ( M R SHAH J , .) . . FURTHER ORDER At . stage Mr A D Oza , . . , learned advocate SCA/10693/2006 JUDGMENT appearing behalf respondent No 1 . – Admission Committee prays for stay of the judgment and order so as to enable the respondent No 1 . Admission Committee to challenge the same before the Higher Forum . Considering the facts and circumstances of the case and looking to the question involved in the petition it is directed that the present judgment may , not be implemented till 27th June 2006 However it will , . , be open for the petitioner Association to publish the Merit List in the Website or in the news papers with a note that the present judgment and order is stayed / upto 27 6 2006 / . / Dt 19 6 2006 / . ( M R SHAH J , .) . .