Consortium of Self Financing Professional v. The State of Tamil Nadurepresented by its Secretary to GovernmentHigher Education DepartmentSecretariat

ensure that the test conducted by the association of colleges is fairand transparent. ivPursuant to the judgment of the Supreme Court in IslamicAcademy case, the Government of Tamil Nadu issued orders fixing 50% ofseats in non-minority engineering colleges to be filled in by itthrough the Common Entrance Test conducted by it and permitting theprivate self-financing non-minority institutions to fill up theremaining 50% of the seats. In minority institutions, 30% of theseats was to be filled up by the State as above leaving the minorityinstitutions to fill up the remaining 70% seats and both minority andnon-minority institutions were permitted to conduct a common entranceexamination through the petitioner consortium and they were alsopermitted to admit students pertaining to Management quota based onthe merit resulting from the entrance examination and marks obtainedin the qualifying examinations. vIn deference to the judgment of the Supreme Court, apermanent Committee was appointed with a retired Madras High CourtJudge as its Head and in the academic year 2004-2005, the petitionerconsortium sought permission to conduct Common Entrance Test foradmission of students. The Committee, on 01.06.2004, grantedpermission to the petitioner consortium, imposing various conditionswhich were contrary to the judgment of the Supreme Court. One suchcondition was that the private self-financing institutions shouldadmit students under the Management quota through single window systemand this condition was challenged before a Division Bench of thisCourt which gave two differing views and ultimately, when the matterwas referred to a third Judge, it was held by the third Judge that thedirection of the Committee to the private self-financing institutionsto follow the single window system to admit students under theManagement quota was illegal. A Special Leave Petition has been filedby the State against the said judgment of the third Judge and the sameis pending before the Supreme Court. viMeanwhile, several petitions came to be filed in variouscourts across the country raising several issues which were notresolved in Pai Foundation case as also the contentions to the effectthat the judgment in Islamic Academy case was contrary to the judgmentin Pai Foundation case. The said matters were referred to a 7 JudgeBench of the Supreme Court which rendered its judgment reported in(2005) 6 SCC 537 in the matter of P.A. Inamdar & others vs. State ofMaharashtra. The said 7 Judge Bench, on consideration of fourimportant issues posed before it, held that the States have no powerto insist on seat sharing in un-aided private professionalinstitutions by fixing a quota of seats between the Management andState. While reiterating the decision of the Pai Foundation case, theSupreme Court held that neither in the judgment in the Pai Foundationcase nor in the decision in Kerala Education Bill, there is anything https://hcservices.ecourts.gov.in/hcservices/ which would allow the State to regulate or control admissions in un-aided professional educational institutions so as to compel them togive up a share of the available seats to the candidates chosen by theState. Accordingly, the Supreme Court was of the view that suchsharing would amount to nationalisation of seats which wasspecifically dis-approved in Pai Foundation case. It was further heldby the Supreme Court that such imposition of quota or enforcingreservation policy of the available seats in un-aided professionalcolleges is an act constituting encroachments on the right of theprivate institutions which cannot be held to be regulatory within themeaning of Article 19(6) of the Constitution of India. viiTherefore, in the Inamdar case, the Supreme Court held thatthey are unable to approve the scheme evolved in Islamic Academy caseto the extent that it allows the State to fix quota for seat sharingbetween the Management and the State on the basis of local needs ofeach State in un-aided institutions of both minority and non-minoritycategories and that part of the judgment in Islamic Academy case wasdeclared as not laying down the correct law and running counter to thejudgment rendered in Pai Foundation case. The Supreme Court alsoclarified that paragraph 68 of the majority opinion in Pai Foundationcase could be construed only to mean that unaided institutions couldvoluntarily agree for seat sharing with the State Government and nototherwise. It was further held that the State could not take over orfill up any percentage of seats under State quota unless theinstitutions themselves voluntarily give up any part of the seats tothe Government to be filled up by it. This ruling was delivered bythe Supreme Court on 12.08.2005 by which time, admissions had alreadybeen made following the principle laid down by the Supreme Court inIslamic Academy case and hence, the Supreme Court, while deliveringthe judgment in Inamdar case, held that the said judgment shall notaffect or disturb admissions already made. viiiIn terms of the ruling of the Supreme Court in Inamdar case,the private self-financing professional colleges were entitled toadmit students in their institutions on their own without theGovernment claiming any quota of the seats available with them. Whenthere was a request by the petitioner Consortium to conduct CommonEntrance Test, the Permanent Committee passed an order on 09.05.2006with several directions, one of which stipulated that admissions areto be made only on the basis of a rank list prepared by a centralisedcounselling following single window system and also to follow the ruleof reservation by the non-minority private engineering colleges. Thisdirection was challenged by the petitioner Consortium and privateinstitutions as well. During the pendency of these matters before theSupreme Court, a consensus was arrived at between the Government andthe petitioner Consortium in the matter of admissions for the year2006-2007. In view of the said consensus, an affidavit was filedbefore this Court whereby and whereunder the petitioner Consortium https://hcservices.ecourts.gov.in/hcservices/ agreed for seat-sharing between the Government and the private self-financing institutions for the academic year 2006-2007. It wasfurther agreed that in respect of non-minority colleges, 65% of theseats in their institutions could be filled by the Government whilethe remaining 35% could be filled by the respective colleges. It wasalso agreed that as for minority colleges, 50% of the seats could befilled by the Government while the remaining 50% could be filled bythe respective Colleges and 15% of the seats within the Managementquota was permitted to be filled up with non-resident Indians (NRIs).The admissions were agreed to be made based on the marks obtained inthe Common Entrance Test conducted by the petitioner Consortium takenalong with the marks scored in the qualifying examinations. TheState Government also filed an affidavit consenting to follow thepractice which was adopted for the previous academic year in thematter of admission of students by private colleges and making itclear that they do not insist that the self-financing colleges shouldfollow the single window system. These agreements were taken onrecord and in terms of the settlement arrived at between the parties,the writ petitions were disposed of by this Court vide its judgmentreported in 2006 (3) MLJ 648. This Court, thus, while doing so, byrecording the affidavit and issuing directions thereof, observed thatits directions, though based on consensus reached between the parties,were nevertheless in conformity with the principles enunciated by theSupreme Court. ixIn the academic year 2006-2007, the private self-financingEngineering Colleges, both minority as well as non-minority, hadagreed to share the seats with the Government only for the academicyear 2006-2007 and accordingly, filled up the seats in terms of theconsensus arrived at and this being the scenario, the State has nowenacted the Act to provide for admissions to professional degreecourses such as engineering, medicine, dental, agriculture, etc. onthe basis of marks scored in the qualifying examinations. In the saidAct, the Common Entrance Test which was one of the basis of selectionof students for admission to professional institutions has been doneaway with and admissions to every Government seat in everyprofessional educational institution as well as admissions to seats tobe filled up by the Management in professional educationalinstitutions were to be done only on the basis of the marks obtainedby the students in the relevant subjects in the qualifyingexaminations. 5The main grounds of attack in this batch of writ petitions arethat:a.as per the judgment of the Supreme Court in Inamdarcase, the Government have no right either to appropriate anyquota of seats or to compel the unaided professional institutionsto give up a share of the available seats to the candidateschosen by the State; https://hcservices.ecourts.gov.in/hcservices/ b.the consensus arrived at between the Government and theprivate engineering colleges during the year 2006 wasspecifically for the academic year 2006-2007 and as such, thereference in Section 2(c)(iii) of the Act to the consensus is amis-conception and a non-existing fact;c.Section 4(1) of the Act directing admission in unaidedprivate educational institutions to be made on the basis of themarks obtained in the qualifying examinations, is violative ofArticle 30(1) in the case of minorities and Articles 19(1)(g) and26 in case of non-minorities since the right of the unaidedprivate educational institutions to admit students has beentraced to the provisions of the Constitution and as such, theState have no jurisdiction to interfere with the said right, asheld by the Supreme Court in Pai Foundation case and clarified inInamdar case; d.Section 5(4) of the Act insofar as directing theunaided professional institutions to admit students throughcentralized counselling is opposed to the judgment of this Courtreported in (2004) 4 MLJ 1 in and by which it was held that thedirection of the permanent committee to private self-financinginstitutions to admit students under the Management quota througha single window system, is illegal; and e.since the process of Common Entrance Test has been doneaway with in view of Sections 3 and 4 of the Act, the question ofcentralized counselling would only be a misnomer besidesconstituting serious inroad into the rights of private self-financing professional colleges in the matter of admission.6On the other hand, the respondent State has filed its counterand it is contended that the order of a learned Single Judge of thisCourt, passed in a batch of writ petitions with regard to engineeringadmissions for the year 2004-2005, dispensing with the single windowsystem for selection of candidates to management quota was referred to aDivision Bench and in view of divergent views of the Bench expressed inthe order dated 25.08.2004, when the matter was referred to a third Judge,the third Judge confirmed the finding of one of the Judges of the Benchthat the individual institutions shall have their own counselling and theorder dated 25.08.2004 has been taken on appeal in S.L.P. before theSupreme Court and the same is pending for final adjudication and as such,the order dated 25.08.2004 of this Court is not final and conclusive, moreparticularly when the Supreme Court, in paragraphs 133 and 135 of itsjudgment in Inamdar case, has stood by centralized counselling taking intoaccount the larger interest and welfare of the student community. https://hcservices.ecourts.gov.in/hcservices/ 7In response to the case of the petitioners that the consensusarrived at between the Consortium and the Government in respect of seatsharing is only for the academic year 2006-2007, it is contended by theState that when the Consortium did not protest at the time of passing ofthe Bill in theAssembly in December 2006 after the assent by the Presidentof India, the petitioners are now estopped from challenging Section 2(c)(iii) of the Act. In this context, it is further submitted by the Statethat seat-sharing cannot be reviewed every year unless there is a materialchange warranting modification of the terms of agreement. 8As far as the case of the petitioners that Section 4(1) of theAct compels the rule of reservation to be followed by minorityinstitutions, it is submitted by the respondent State that since Section 6of the Act is clear to the effect that admission into every professionaleducational institution other than minority professional educationalinstitutions shall be made following the reservation as per law in force,it is incorrect on the part of the petitioners to say that the minorityinstitutions are compelled to make the admissions following the rule ofreservation. Pointing out that the number of applications has increasedto 95,181 this year when compared to 66,384 applications received for theyear 2006-2007, it is contended by the State that the present Act hadreceived overwhelming response from the student community and as such, theselection process which is already in its mid way does not warrant to bestalled.9Before proceeding further, it would be relevant to refer to theimpugned provisions of the Act which read as under:2In this Act, unless the context otherwise requires:-(c)"Government seats" mean-(iii)65% of seats in each branch in non-minorityunaided professional educational institutions and 50% of theseats in each branch in minority unaided professional educationalinstitutions, in accordance with the consensus arrived at betweensuch professional educational institutions and the Government;4Admission in unaided professional educational institutions(1)Notwithstanding anything contained in any relevant lawor any rules, regulations or by laws made thereunder, admissionto seats, excluding the seats referred to in item (iii) ofclause (c) of Section 2 in all unaided professional educationalinstitutions shall be made by the consortium of unaidedprofessional educational institutions approved by the Governmentor by any authority authorised by the Government, on the basisof the marks obtained by a student in the relevant subjects inthe qualifying examination. https://hcservices.ecourts.gov.in/hcservices/ 5Normalization of marks:(4)The appropriate authority and the consortium of unaidedprofessional educational institution shall prepare the rank listsfor admission of students to the seats referred to in section 3and section 4, respectively and allot students throughcentralised counselling.10Mr. R. Krishnamurthy, learned Senior Counsel appearing for thepetitioners in W.P. Nos.20259 & 20346 of 2007, in his first limb ofsubmissions, has contended that:a.the impugned provisions in the Act viz., 2(c)(iii), 4(1)and 5(4) take away the rights guaranteed under the Constitution andalso run contrary to the judgments of the Supreme Court in PaiFoundation case and Inamdar case;b.the Act does not state the method of admission in respect ofself-financing Colleges which are not members of the Consortium andtherefore, the Act is an exercise in futility;c.the method of assigning random number in the event of equalmarks scored by students is irrational;d.pursuant to the ruling of the Supreme Court in PaiFoundation case and Inamdar case, there is no power vested with theGovernment to have a quota in seats or centralised counselling and toinsist upon single window system in self-financing Colleges andtherefore, the Government cannot insist on communal reservation inrespect of Management seats in these colleges or to say in otherwords, the respondent-State has re-introduced the ruling of theSupreme Court in Unnikrishnan case in the form of the impugnedlegislation and as such, the impugned legislation is invalid andunconstitutional.11Secondly, Mr. R. Krishnamurthy, learned Senior Counsel hascontended that:a.the consensual arrangement made for the year 2006-2007 isconfined to the academic year 2006-2007 only and this arrangementcannot be altered by a unilateral re-writing of the contract as thisarrangement has inter-alia contained seat-sharing, quota and singlewindow system for that period alone and there cannot be a tacitconsent and therefore, that consensual arrangement cannot be reliedupon and given effect to the legislation unilaterally;b.the abolition of Common Entrance Test is a material changeand in view of this aspect also, the consensual arrangement comes toan end and even from the recorded proceedings before this Court in the https://hcservices.ecourts.gov.in/hcservices/ judgment reported in (2006) 3 MLJ 648, it is made clear that thisarrangement was for the year 2006-2007 and it cannot have effect forthe unilateral contract which has been incorporated in Section 2(c)(iii) of the impugned Act;12Thirdly, the learned Senior Counsel has vehemently argued that:athe statement of objects and reasons of the impugned Actdoes not make any mention regarding seat-sharing and there is nomention about the percentage of seat-sharing whereas the objects andreasons of the Act go around mainly on the need for elimination ofCommon Entrance Test in the interest of social justice andproclamation of vulnerable student population and perhaps tonormalise the process for ensuring equality of opportunity foradmission to the students from different Boards and hence, theimpugned Act cannot be held as a constitutionally valid one as itsuffers from illegality contrary to the principles laid down by theSupreme Court.bthe legislative facts are subject to judicial scrutiny andthere has been incorrect legislative fact based on which the impugnedAct has been enacted taking away the rights of the minority and non-minority educational institutions and is also against the legal dictumprofounded by the Supreme Court in Pai Foundation case and Inamdarcase. cthe Act impugned in this batch of writ petitions takes awaythe control and management of the private unaided minority and non-minority educational colleges in the matter of admission to seatswhich is subject to the approval of the Government or the authorityauthorised by the Government on the basis of marks obtained by thestudent in the relevant subject in the qualifying examination andtherefore, the admission procedure contemplated under Section 4(1) ofthe Act has to be declared unconstitutional;dby using the words "appropriate authority" in the Act, theGovernment cannot involve itself in the admission procedure of thepetitioner institutions and as far as the phrase "appropriateauthority" is concerned, it is the Government under Section 3 of theAct and under Section 4 of the Act, the authority authorised by theGovernment is only the petitioner consortium and this is the mannerin which the phrase has to be interpreted and not otherwise and inview of this, the Act has to be declared unconstitutional;ethe impugned Act affects the doctrine of reasonableness asthere is no rationale or nexus for seat-sharing in the ratio 65%-35%in the case of non-minority institutions and 50%-50% in case ofminority institutions; https://hcservices.ecourts.gov.in/hcservices/ fthe Act under challenge cannot be saved by applying thedoctrine of severability as the other provisions in the Act cannotstand independently and further, the Act suffers from the doctrine ofcolourable exercise of power and therefore, the impugned Act isinconsistent with the law laid down by the Supreme Court in itsjudgment in St. Stephen's College vs. University of Delhi and also thedoctrine of "reading down" cannot be resorted to in this case sincewords cannot be "substituted" or "added".13Mr. Rajeev Dhavan, learned Senior Counsel appearing for thepetitioner in W.P. No.20212 of 2007, has contended that:a.the Pai Foundation case decided by a 11 Judge Bench of theSupreme Court has become the law of the land and it is the lawdeclared by the Supreme Court particularly in view of the fact thatruling of the Supreme Court in Inamdar case, has reiterated theposition in Pai Foundation case;b.the impugned provisions of the Act are totally against theconstitutional rights of the unaided minority and non-minorityeducational institutions with regard to their power to control andadminister the institutions;c.the impugned Act not only infringes the fundamental rightsof the petitioner Consortium and other colleges guaranteed underArticles 19(1)(g) and 30 of the Constitution but also violates thefundamental principles laid down in Pai Foundation case and Inamdarcase;d.even when the provisions which are valid are distinct andseparate from those which are invalid, if they all form part of asingle scheme which is intended to be operative as a whole, then alsothe invalidity of a part will result in the failure of the whole; e.in determining whether the valid parts of a statute areseparable from the invalid parts thereof, it is the intention of thelegislature that is the determining factor and the test to be appliedis whether the legislature would have enacted the valid part, if ithad known that the rest of the statue was invalid;f.to give a proper understanding to an Act, the intention ofthe Legislature is primarily to be gathered from the language used,which means that attention should be paid to what has been said asalso to what has not been said and a proper construction requires andas a consequence, a construction which requires for its supportaddition or substitution of words or which results in rejection ofwords as meaningless, has to be avoided. https://hcservices.ecourts.gov.in/hcservices/ g.The impugned Act which has been passed based on incorrectlegislative fact has to be struck down;14By taking me through the judgment of the Supreme Court inInamdar case, Mr. Rajeev Dhavan, learned Senior Counsel, has argued thatthe State cannot insist on private educational institutions which do notreceive any aid from the State to implement the State's policy onreservation for granting admission on lesser percentage of marks i.e. onany criterion except merit and if the State is allowed to regulate orcontrol admissions in the unaided professional educational institutions soas to compel them to give up a share of the available seats to thecandidates chosen by the State, it would amount to nationalisation ofseats which has been specifically disapproved in Pai Foundation case. Hehas further contended that such imposition of quota of State seats orenforcing reservation policy of the State on available seats in unaidedprofessional institutions are acts constituting serious encroachment onthe right and autonomy of private professional educational institutionsand such acts would only mean violation of Article 30(1) of theConstitution of India.15On the aspect of reasonableness, Mr. Rajeev Dhavan, learnedSenior Counsel has contended that, for a constitutional principle toqualify as an essential feature, it must be established that theprinciples of federalism, secularism, reasonableness and social justiceare beyond the words of a particular provision and are a part ofConstitutional law binding on the Legislature and therefore, theprinciples stated above are overarching principles which provide a linkingfactor for principle of fundamental rights like Articles 14, 19 and 21 ofthe Constitution and these principles are beyond the amending power ofParliament.16The learned Senior Counsel has also drawn the attention of thisCourt to a recent decision judgment of the Supreme Court in the matter ofM. Nagaraj & Others vs. Union of India reported in 2006 (8) SCC 212 therelevant portion of which reads as under:". . .The Supreme Court refused to infuse theprocedure with principles of natural justice. Itconcentrated solely upon the existence of enacted law.After three decades, the Supreme Court overruled itsprevious decision in A.K. Gopalan and held in itslandmark judgment in Maneka Gandhi v. Union of Indiathat the procedure contemplated by Article 21 mustanswer the test of reasonableness. The Court furtherheld that the procedure should also be in conformitywith the principles of natural justice. This exampleis given to demonstrate an instance of expansiveinterpretation of a fundamental right.. . ." https://hcservices.ecourts.gov.in/hcservices/ 17Mr. Rajeev Dhavan, by referring to the judgment of the SupremeCourt reported in (2004) 2 SCC 130 in the case of Teri Oats EstatesLimited v. Union Territory of Chandigarh, has contended that byproportionality, it is meant that the question, whether, while regulatingexercise of fundamental rights, the appropriate or least restrictivechoice of measures, has been made by the legislature or the administratorso as to achieve the object of the legislation or the purpose of theadministrative order, as the case may be and under the principle, thecourt will see that the legislature and the administrative authoritymaintain a proper balance between the adverse effects which thelegislation or the administrative order may have on the rights, libertiesor interests of persons, keeping in mind the purpose which they wereintended to serve.In this context, it is his further submission thatever since 1952, the principle of proportionality has been appliedvigorously to legislative and administrative action in India and whiledealing with the validity of legislation infringing fundamental freedomsenumerated in Article 19(1) of the Constitution of India, the SupremeCourt had occasion to consider whether the restrictions imposed bylegislation were disproportionate to the situation and were not the leastrestrictive of the choices. It is his argument that in such cases, theaction has to be tested on the principle of proportionality in the case ofa legislation.18As regards the illegality and unconstitutionality of the methodof admission, the learned Senior Counsel has contended that there is nopower in the Government to have quota in seats or to insist upon singlewindow system and communal reservation in self-financing colleges and assuch, the impugned Act is a classic example of the doctrine of colourableexercise of power. He has further argued that there should be legislativecompetency on the one side and fundamental rights have to be taken care ofon the other side and the legislation cannot ignore the law laid down bythe Supreme Court in Inamdar case and if the legislation is contrary, thenit is subject to judicial review.19On the aspect of interpretation of "appropriate authority", Mr.Rajeev Dhavan, learned Senior Counsel has contended that the appropriateauthority is the authority of the Government under Section 3 of the Actand the authority authorised by the Government under Section 4 of the Actis none other than the petitioner Consortium and the Act should beunderstood in that manner, as otherwise the contextual connotation and thescheme of the Act will run contrary to the object sought to be achieved inthe light of the rights of the petitioner institutions. In support of hiscontention as to how the words used in a statute have to be interpreted,reliance has been placed by the learned Senior Counsel on a judgment ofthe Supreme Court reported in (1994) 2 SCC 434 in the case of Printers(Mysore) Ltd. And another vs. Assistant Commercial Tax Officer and others(para 18) https://hcservices.ecourts.gov.in/hcservices/ "18.Now, coming back to the amendment of thedefinition of "goods" in Section 2(d) of the CentralSales Tax Act, the said amendment, brought in with aview to bring the said definition in accord with theamendments brought in by the Constitution Sixth(Amendment) Act (referred to hereinbefore) was actuatedby the very same concern, viz., to exempt the sale ofnewspapers from the levy of Central Sales Tax. Theamendment was not intended to create a burden which wasnot there but to remove the burden if any alreadyexisting on the newspapers – a policy evidenced by theenactment of the Taxes on Newspapers – (Sales andAdvertisements) Repeal Act, 1951. This concern musthave to be borne in mind while understanding Section 8(3)(b). Now, the expression "goods" occurs on fouroccasions in Section 8(3)(b). On first threeoccasions, there is no doubt, it has to be understoodin the sense it is defined in clause (d) of Section 2.Indeed, when Section 8(1)(b) speaks of goods, it isreally referring to goods referred to in the first halfof Section 8(3)(b), i.e. on first three occasions. Itis only when Section 8(3)(b) uses the expression"goods" in the second half of the clause, i.e. on thefourth occasion that it does not and cannot beunderstood in the sense it is defined in Section 2(d).In other words, the "goods" referred in the first halfof clause (b) in Section 8(3) refers to what maygenerally be referred to as raw material (in caseswhere they were purchased by a dealer for use in themanufacture of goods for sale) while the said word"goods" occurring for the fourth time (i.e. in thelatter half) cannot obviously refer to raw material.It refers to manufactured "goods", i.e. goodsmanufactured by such purchasing dealer – in this case,newspapers. If we attach the defined meaning to"goods" in the second half of Section 8(3)(b), it wouldplace the newspapers in a more unfavourable positionthan they were prior to the amendment of the definitionin Section 2(d). It should also be remembered thatSection 2 which defines certain expressions occurringin the Act opens with the words: "In this Act, unlessthe context otherwise requires". This shows thatwherever the word "goods" occurs in the enactment, itis not mandatory that one should mechanically attributeto the said expression the meaning assigned to it inclause (d). Ordinarily, that is so. But where thecontext does not permit or where the context requiresotherwise, the meaning assigned to it in the said https://hcservices.ecourts.gov.in/hcservices/ definition need not be applied. If we keep the aboveconsideration in mind, it would be evident that theexpression "goods" occurring in the second half ofSection 8(3)(b) cannot be taken to exclude newspapersfrom its purview. The context does not permit it. Itcould never have been included by Parliament. Beforethe said amendment, the position was – the State couldnot levy tax on intra-State sale of newspapers; theParliament could but it did not and Entry 92-A fo ListI bars the Parliament from imposing tax on inter-Statesale of newspapers; as a result of the aboveprovisions, while the newspapers were not paying anytax on their sale, they were enjoying the benefit ofSection 8(3)(b) read with Section 8(1)(b) and payingtax only @ 4% on non-declared goods which they requiredfor printing and publishing newspapers. Their positioncould not be worse after the amendment which would bethe case if we accept the contention of the Revenue. Ifthe contention of the Revenue is accepted, thenewspapers would now become liable to pay tax @ 10% onnon-declared goods as prescribed in Section 8(2). Thiswould be the necessary consequence fo the acceptance ofRevenue's submission inasmuch as the newspapers wouldbe deprived of the benefit of Section 8(3)(b) rad withSection 8(1)(b). We do not think that such was theintention behind the amendment of definition of theexpression "goods" by the 1958 (Amendment) Act. Evenapart from the opening words in Section 2 referred toabove, it is well settled that where the context doesnot permit or where it would lead to absurd or intendedresult, the definition of an expression need not bemechanically applied."20On his contention that no mala fide can be attributed againstLegislature, Mr. Rajeev Dhavan has relied on a judgment of the SupremeCourt reported (2000) 1 SCC 168 in the matter of Indra Sawhney vs. Unionof India and others (paras 35 to 37)"35Before we go into the validity of clauses (a)and (b) of Section 3, it is necessary to find out ifthe legislative declaration of "known facts" in Section3 of the Act is amenable to judicial scrutiny.It is now fairly well settled that legislativedeclarations of facts are not beyond judicial scrutinyin the constitutional context of Articles 14 and 16.In Kesavananda Bharati vs. State of Kerala, thequestion arose – in the context of legislativedeclarations made for purposes of Article 31-C –whether the court was precluded from lifting the veil, https://hcservices.ecourts.gov.in/hcservices/ examining the facts and holding such legislativedeclarations as invalid. The said issue was dealt within various judgments in that case, e.g. Judgments ofRay., J (as he then was), Palekar, Khanna, Mathew,Dwivedi, JJ and Beg, J. and Chandrachud J. (as theythen were). The learned Judges held that the courtscould lift the veil and examine the position in spiteof a legislative declaration. Ray, J. (as he then was)observed:"The court can tear the veil to decidethe real nature of the statute if the factsand circumstances warrant such a course.***A conclusive declaration would not bepermissible so as to defeat a fundamentalright."Palekar, J. said that if the legislation wasmerely a pretence and the object was discrimination,the validity of the statute could be examined by thecourt notwithstanding the declaration made by thelegislature and the learned Judge referred to CharlesRussel v. R. and to Attorney General v. Queen InsuranceCo. Khanna, J. held that the declaration could notpreclude judicial scrutiny. Mathew, J. held thatdeclarations were amenable to judicial scrutiny. If thelaw was passed only "ostensibly" but was in truth andsubstance, one for accomplishing an unauthorisedobject, the court, it was held, would be entitled totear the veil. Beg, J. (as he then was) held that thedeclaration by the legislature would not preclude ajudicial examination. Dwivedi J. said that the courtsretain the power in spite of Article 31-C to determinethe correctness of the declaration. Chandrachud J (ashe then was) held that the declaration could not beutilised as a cloak to evade the law and thedeclaration could not preclude the jurisdiction of thecourts to examine the facts.37.This being the legal position, this Courtcould certainly examine whether the so-called "knownfacts" referred to in Section 3 were indeed non-existent."21Mr. N.R. Chandran, learned Senior Counsel appearing for thepetitioner in W.P. No.20213 of 2007 has pointed out that the cause ofaction arises when the Act is enforced and in the case on hand, the Acthas come into force from 07.03.2007 and therefore, the petitioner has nowchallenged the validity of the Act in respect of three of its Sections and https://hcservices.ecourts.gov.in/hcservices/ the legislation will have prospective application and therefore, anyconsensus arrived at after the Act, is only in effect in the actualintention and on the contrary, the percentage fixed in the impugned Act inSection 2(c)(iii) is contrary to the legal proposition. In this regard,reliance has been placed by the learned Senior Counsel on a judgment ofthe Supreme Court reported in (2004) 6 SCC 254 in the matter of KusumIngots & Alloys Limited vs. Union of India and another (para 21)"A parliamentary legislation when it receives theassent of the President of India and is published inthe Official Gazette, unless specifically excluded,will apply to the entire territory of India. Ifpassing of a legislation gives rise to a cause ofaction, a writ petition questioning theconstitutionality thereof can be filed in any HighCourt of the country. It is not so done because acause of action will arise only when the provisions ofthe Act or some of them which were implemented shallgive rise to civil or evil consequences to thepetitioner. A writ court, it is well settled, wouldnot determine a constitutional question in a vacuum."22The further submission made by the learned Senior Counsel isthat the Government can exercise its power only when there is mal-practice, exploitation or lack of transparency on the part of theeducational institutions and that the Government can only monitor theactivities of the educational institutions but can never take over theirmanagement by compelling single window system in the admission procedurein violation of the proposition laid down by Pai Foundation case andInamdar case and on this ground, the impugned Act is liable to be struckdown.23Mr. R. Muthukumaraswamy, learned Senior Counsel appearing forthe petitioner in W.P. No. 20266 of 2007 has contended that:a.the centralized counselling will affect the rights of theinstitution and the impugned Government Order in G.O. Ms.115 dated25.05.2007 is contrary to the law laid down by the Supreme Court inPai Foundation case as well as Inamdar case;b.since paragraph 68 of the Pai Foundation case has beenreiterated in Inamdar case upholding the rights of minorityeducational institutions, the impugned legislation is contrary to theconstitutional rights guaranteed under Articles 19(1)(g) and 30 ofthe Constitution of India;24Pointing out paras 124-126 of the Supreme Court judgment inInamdar case, learned Senior Counsel has contended that though for theyear 2006-2007, consensus has been arrived at and there is no appealagainst and it had become final, that cannot be the consensus for the https://hcservices.ecourts.gov.in/hcservices/ unilateral action of the Government to fix percentage of seat-sharing andtherefore, this legislation which is colourable exercise of power isliable to be struck down as laid down by the Supreme Court in St.Stephen's College case which is a correct proposition in this regard. Inthis context, he has argued that Section 4(1) of the Act is equivalent tothe circular impugned in St. Stephen's College case and when 4(1) isdeclared as unconstitutional, the impugned provision in Section 5(4) willgo automatically. In support of his contention in this regard, reliancehas been placed by him on a judgment of the Supreme Court reported in(1992) 1 SCC 558 in the matter of St. Stephen's College vs. University ofDelhi (paras 60, 63 and 66)"60.The right to select students for admissionis a part of administration. It is indeed animportant facet of administration. This power alsocould be regulated but the regulation must bereasonable just like any other regulation. It shouldbe conducive to the welfare of the minorityinstitution or for the betterment of those who resortto it. The Bombay Government Order which preventedthe schools using English as the medium of instructionfrom admitting students who have a mother tongue otherthan English was held to be invalid since itrestricted the admission pattern of the schools. TheGujarat Government direction to the minority runCollege to reserve 80 per cent of seats for governmentselected candidates with a threat to withdraw thegrant-in-aid and recognition was struck down asinfringing the fundamental right guaranteed tominorities under Article 30(1) of the Constitution.In Rt. Rev. Magr. Mark Netto v. Government of Keralathe denial of permission to the management of aminority school to admit girl students was held to bebad. The Regional Deputy Director in that caserefused to give sanction for admission of girlstudents on two grounds: (i) that the school was notopened as a mixed school and that the school has beenrun purely as a boys school for 25 years; and (ii)that there was facility for the education of girls ofthe locality in a nearby girls school which wasestablished by the Muslims and was also a minorityinstitution. This Court noted that the Christiancommunity in the locality wanted their girls also toreceive education in the school maintained speciallyby their own community. They did not think it intheir interest to send their children to the Muslimgirls school run by the other minority community. Thewithholding of permission for admission of girlstudents in the boys minority school was violative ofArticle 30(1). It was also observed that the rule https://hcservices.ecourts.gov.in/hcservices/ sanctioning such refusal of permission crosses thebarrier of regulatory measures and comes in the regionof interference with the administration of theinstitution, a right which is guaranteed to theminority under Article 30(1). The Court restrictedthe operation of the rule and made it inapplicable tothe minority educational institution. In Director ofSchool Education, Government of T.N. v. Rev. BrotherG. Arogiasamy, the Madras High Court had an occasionto consider the validity of an uniform procedureprescribed by the State Government for admission ofcandidates to the aided training schools. Thegovernment directed that the candidates should beselected by the school authorities by interviewingevery candidate eligible for admission and assessingand awarding marks in the interview. The marksawarded to each candidate in the interview will beadded to the marks secured by the candidate in theSSLC public examination. On the basis of theaggregate of marks in the SSLC examination and thoseobtained at the interview the selection was to be madewithout any further discretion. The High Court heldthat the method of selection placed seriousrestrictions on the freedom of the minorityinstitution to admit their own students. It was foundthat the students of the minority community could notcompete with the students belonging to othercommunities. The applications of students from othercommunities could not be restricted under law. Theresult was that the students of minority community forwhose benefit the institution was founded, had littlechance of getting admission. The High Court held thatthe Government Order prescribing the uniform method ofselection could not be applied to minorityinstitutions.63.The oral interview as a supplementary testand not as exclusive test for assessing thesuitability of candidates for college admission hasbeen recognised by this Court. But, at the same time,to avoid arbitrariness in the selection it has beenrepeatedly held that there shall not be allocation ofhigh percentage of marks for oral interview test.Where candidate's personality is yet to develop, ithas been emphasised that greater weight has perforceto be given to performance in the written examinationand the importance to be attached to the interviewtest must be minimal. The Court has generallyindicated that interview marks should not be more than15 per cent of the total marks. https://hcservices.ecourts.gov.in/hcservices/

66.So in the end we are driven to conclude thatSt. Stephen's College is not bound by the impugnedcirculars of the University."25In support of his arguments, Mr. Muthukumaraswamy, learnedSenior Counsel has placed further reliance on:a.a judgment of the Supreme Court reported in (2005) 2 SCC 673 inthe case of Central Board of Dawoodi Bohra Community and another vs. Stateof Maharasthra and another (paras 5 & 12)"5.In Bharat Petroleum Corporation Ltd. Case theConstitution Bench has ruled that a decision of aConstitution Bench of this Court binds a Bench of twolearned Judges of this Court and that judicialdiscipline obliges them to follow it, regardless oftheir doubts about its correctness. At the most, theycould have ordered that the matter be heard by a Benchof three learned Judges. Following this view of thelaw, what has been declared by this Court in PradipChandra Parija case clinches the issue. The facts inthe case were that a Bench of two learned Judgesexpressed dissent with another judgment of threelearned Judges and directed the matter to be placedbefore a larger Bench of five Judges. The ConstitutionBench considered the rule of "judicial discipline andpropriety" as also the theory of precedents and heldthat it is only a Bench of the same quorum which canquestion the correctness of the decision by anotherBench of coordinate strength in which case the mattermay be placed for consideration by a Bench of largerquorum. In other words, a Bench of a lesser quorumcannot express disagreement with, or question thecorrectness, of the view taken by a Bench of largerquorum. A view of the law taken by a Bench of threeJudges is binding on a Bench of two Judges and in casethe Bench of two Judges feels not inclined to followthe earlier three Judge Bench decision then it is notproper for it to disagree or dissent with the earlierview; but doubting the correctness of such earlierview, it can only request the Chief Justice for thematter being placed for hearing before a three-JudgeBench which may agree or disagree with the view of thelaw taken earlier by the three Judge Bench. As alreadynoted, this view has been followed and reiterated by atleast three subsequent Constitution Benches referred tohereinabove. https://hcservices.ecourts.gov.in/hcservices/

12.Having carefully considered the submissionsmade by the learned Senior Counsel for the parties andhaving examined the law laid down by the ConstitutionBenches in the abovesaid decisions, we would like tosum up the legal position in the following terms:1The law laid down by this Court ina decision delivered by a Bench of largerstrength is binding on any subsequent Benchof lesser or co-equal strength.2A Bench of lesser quorum cannotdisagree or dissent from the view of the lawtaken by a Bench of larger quorum. In caseof doubt all that the Bench of lesser quorumcan do is to invite the attention of theChief Justice and request for the matterbeing placed for hearing before a Bench oflarger quorum than the Bench whose decisionhas come up for consideration. It will beopen only for a Bench of coequal strength toexpress an opinion doubting the correctnessof the view taken by the earlier Bench ofco-equal strength, whereupon the matter maybe placed for hearing before a Benchconsisting of a quorum larger than the onewhich pronounced the decision laying downthe law the correctness of which isdoubted."b.another judgment of the Supreme Court reported in AIR 1983 SC239 in the matter of Sanjeev Coke Manufacturing Company vs. Bharat CokingCoal Ltd. and another (para 26)"Shri Ashok Sen drew pointed attention to theearlier affidavits filed on behalf of Bharat CokingCoal Company and commented severally on the allegedcontradictory reasons given therein for the exclusionof certain coke oven plants from the Coking Coal Mines(Nationalisation) Act. But, in the ultimate analysis,we are not really to concern ourselves with thehollowness or the self-condemnatory nature of thestatements made in the affidavits filed by therespondents to justify and sustain the legislation.The deponents of the affidavits filed into Court mayspeak for the parties on whose behalf they swear to thestatements. They do not speak for the Parliament andParliament is never before the Court. After Parliamenthas said what it intends to say, only the Court may say https://hcservices.ecourts.gov.in/hcservices/ what the Parliament meant to say. None else. Once astatute leaves Parliament House, the Court's is theonly authentic voice which may echo (interpret) theParliament. This the Court will do with reference tothe language of the statute and other permissible aids.The executive Government may place before the Courttheir understanding of what Parliament has said orintended to say or what they think was Parliament'sobject and all the facts and circumstances which intheir view led to the legislation. When they do so,they do not speak for Parliament. No Act of Parliamentmay be struck down because of the understanding ormisunderstanding of Parliamentary intention by theexecutive government or because their (theGovernment's) spokesmen do not bring out relevantcircumstances but indulge in empty and self-defeatingaffidavits. They do not and they cannot bindParliament. Validity of legislation is not to bejudged merely by affidavits filed on behalf of theState, but by all the relevant circumstances which theCourt may ultimately find and more especially by whatmay be gathered from what the legislature has itselfsaid. We have mentioned the facts as found by us andwe do not think that there has been any infringement ofthe right guaranteed by Art. 14."26It is to be noted in this context that all the four learnedSenior Counsel have relied on the judgment of the Supreme Court in PaiFoundation case and the relevant paragraphs are as under:"36.The private unaided educational institutionsimpart education, and that cannot be the reason to takeaway their choice in matters, inter alia, of selectionof students and fixation of fees. Affiliation andrecognition has to be available to every institutionthat fulfils the conditions for grant of suchaffiliation and recognition. The private institutionsare right in submitting that it is not open to theCourt to insist that statutory authorities shouldimpose the terms of the scheme as a condition for grantof affiliation or recognition; this completely destroysthe institutional autonomy and the very objective ofestablishment of the institution.37. . . When one considers the ConstitutionBench's earlier statement that higher education is nota fundamental right, it seems unreasonable to compel acitizen to pay for the education of another, more soin the unrealistic world of competitive examinationswhich assess the merit for the purpose of admission https://hcservices.ecourts.gov.in/hcservices/ solely on the basis of the marks obtained, where theurban students always have an edge over the ruralstudents. In practice, it has been the case of themarginally less merited rural or poor student bearingthe burden of a rich and well-exposed urban student.38The scheme in Unni Krishnan has the effect ofnationalising education in respect of importantfeatures viz., the right of a private unaidedinstitution to give admission and to fix the fee. Byframing this scheme, which has led to the StateGovernments legislating in conformity with the scheme,the private institutions are indistinguishable from thegovernment institutions; curtailing all these essentialfeatures of the right of administration of a privateunaided educational institution can neither be calledfair nor reasonable. Even in the decision in UnniKrishnan case, it has been observed by Jeevan Reddy, J.at p. 749, para 194, as follows:"194.The hard reality that emergesis that private educational institutions area necessity in the present-day context. Itis not possible to do without them becausethe governments are in no position to meetthe demand – particularly in the sector ofmedical and technical education which callfor substantial outlays. While education isone of the most important functions of theIndian State it has no monopoly therein.Private educational institutions – includingminority educational institutions – too havea role to play."40.Any system of student selection would beunreasonable if it deprives the private unaidedinstitution of the right of rational selection, whichit devised for itself, subject to the minimumqualification that may be prescribed and to some systemof computing the equivalence between different kinds ofqualifications, like a common entrance test. Such asystem of selection can involve both written and oraltests for selection, based on principle of fairness.41.Surrendering the total process of selectionto the State is unreasonable, as was sought to be donein Unni Krishnan scheme. Apart from the decision inSt. Stephen's College v. University of Delhi whichrecognised and upheld the right of a minority aided https://hcservices.ecourts.gov.in/hcservices/ institution to have a rational admission procedure ofits own, earlier Constitution Bench decisions of thisCourt have, in effect, upheld such a right of aninstitution devising a rational manner of selecting andadmitting students.50.The right to establish and administer broadlycomprises the following rights:a.to admit students;b.to set up a reasonable fee structurec.to constitute a governing bodyd.to appoint staff (teaching and non-teaching) ande.to take action if there is derelictionof duty on the part of any employees.59.Merit is usually determined, for admission toprofessional and higher education colleges, by eitherthe marks that the student obtains at the qualifyingexamination or school-leaving certificate stagefollowed by the interview, or by a common entrance testconducted by the institution, or in the case ofprofessional colleges, by government agencies.61. In the case of unaided private schools,maximum autonomy has to be with the management withregard to administration, including the right ofappointment, disciplinary powers, admission of studentsand the fees to be charged. At the school level, it isnot possible to grant admissions on the basis of merit.It is no secret that the examination results at alllevels of unaided private schools, notwithstanding thestringent regulations of the governmental authorities,are far superior to the results of the government-maintained schools. There is no compulsion on studentsto attend private schools. The rush for admission isoccasioned by the standards maintained in such schools,and recognition of the fact that State-run schools donot provide the same standards of education. The Statesays that it has no funds to establish institutions atthe same level of excellence as private schools. But,by curtailing the income of such private schools, itdisables those schools from affording the bestfacilities because of a lack of funds. If thislowering of standards from excellence to a level ofmediocrity is to be avoided, the State has to providethe difference which, therefore, brings us back in avicious circle to the original problem, viz. the lack https://hcservices.ecourts.gov.in/hcservices/ of State funds. The solution would appear to lie inthe States not using their scanty resources to prop upinstitutions that are able to otherwise maintainthemselves out of the fees charged, but in improvingthe facilities and infrastructure of State-run schoolsand in subsidizing the fees payable by the studentsthere. It is in the interest of the general publicthat more good quality schools are established;autonomy and non-regulation of the schooladministration in the right of appointment, admissionof the students and the fee to be charged will ensurethat more such institutions are established. The fearthat if a private school is allowed to charge feescommensurate with the fees affordable, the degreeswould be 'purchasable' is an unfounded one since thestandards of education can be and are controllablethrough the regulations relating to recognition,affiliation and common final examinations.65The reputation of an educational institutionis established by the quality of its faculty andstudents and the educational and other facilities thatthe college has to offer. The private educationalinstitutions have a personality of their own, and inorder to maintain their atmosphere and traditions, itis but necessary that they must have the right tochoose and select the students who can be admitted totheir courses of studies. It is for this reason thatin St. Stephen's College case this Court upheld thescheme whereby a cut-off percentage was fixed foradmission, after which the students were interviewedand thereafter selected. While an educationalinstitution cannot grant admission on its whims andfancies, and must follow some identifiable orreasonable methodology of admitting the students, anyscheme, rule or regulation that does not give theinstitution the right to reject candidates who mightotherwise be qualified according to, say, theirperformance in an entrance test, would be anunreasonable restriction under Article 19(6), thoughappropriate guidelines/modalities can be prescribed forholding the entrance test in a fair manner. Even whenstudents are required to be selected on the basis ofmerit, the ultimate decision to grant admission to thestudents who have otherwise qualified for the grant ofadmission must be left with the educational institutionconcerned. However, when the institution rejects suchstudents, such rejection must not be whimsical or forextraneous reasons. https://hcservices.ecourts.gov.in/hcservices/ 68It would be unfair to apply the same rulesand regulations regulating admission to both aided andunaided professional institutions. It must be borne inmind that unaided professional institutions areentitled to autonomy in their administration while, atthe same time, they do not forego or discard theprinciple of merit. It would, therefore, bepermissible for the university or the Government, atthe time of granting recognition, to require a privateunaided institution to provide for merit-basedselection while, at the same time, giving themanagement sufficient discretion in admitting students.This can be done through various methods. Forinstance, a certain percentage of the seats can bereserved for admission by the management out of thosestudents who have passed the common entrance test heldby itself or by the State/University and have appliedto the college concerned for admission, while the restof the seats may be filled up on the basis ofcounselling by the State agency. This willincidentally take care of poorer and backward sectionsof the society. The prescription of percentage forthis purpose has to be done by the Government accordingto the local needs and different percentages can befixed for minority unaided and non-minority unaided andprofessional colleges. The same principles may beapplied to other non-professional but unaidededucational institutions viz., graduation and post-graduation non-professional colleges or institutes."27Apart from the above, the learned Senior Counsel appearing forthe petitioners have also relied on the judgment of the Supreme Court inInamdar case and the relevant paragraphs read as under:"Minority unaided educational institutions asking foraffiliation or recognition:121Affiliation or recognition by the State orthe Board or the university competent to do so, cannotbe denied solely on the ground that the institution isa minority educational institution. However, the urgeor need for affiliation or recognition brings in theconcept of regulation by way of laying down conditionsconsistent with the requirement of ensuring merit,excellence of education and preventing mal-administration. For example, provisions can be madeindicating the quality of the teachers by prescribingthe minimum qualifications that they must possess andthe courses of studies and curricula. The existence of https://hcservices.ecourts.gov.in/hcservices/ infrastructure sufficient for its growth can bestipulated as a pre-requisite to the grant ofrecognition or affiliation. However, there cannot beinterference in the day-to-day administration. Theessential ingredients of the management, includingadmission of students, recruiting of staff and thequantum of fee to be charged, cannot be regulated.122Apart from the generalised position of lawthat the right to administer does not include the rightto mal-administer, an additional source of power toregulate by enacting conditions accompanyingaffiliation or recognition exists. A balance has to bestruck between the two objectives;; (i) that ofensuring the standard of excellence of the institutionand (ii) that of preserving the right of the minorityto establish and administer its educationalinstitution. Subject to a reconciliation of the twoobjectives, any regulation accompanying affiliation orrecognition must satisfy the triple tests; (i) the testof reasonableness and rationality, (ii) the test thatthe regulation would be conducive to making theinstitution an effective vehicle of education for theminority community or other persons who resort to it,,and (iii) that there is no inroad into the protectionconferred by Article 30(1) of the Constitution, thatis, by framing the regulation the essential characterof the institution being a minority educationalinstitution, is not taken away.124So far as appropriation of quota by the Stateand enforcement of its reservation policy is concerned,we do not see much of a difference between non-minorityand minority unaided educational institutions. We findgreat force in the submission made on behalf of thepetitioners that the States have no power to insist onseat-sharing in unaided private professionaleducational institutions by fixing a quota of seatsbetween the management and the State. The State cannotinsist on private educational institutions whichreceive no aid from the State to implement the State'spolicy on reservation for granting admission on lesserpercentage of marks i.e. on any criterion except merit.125As per our understanding, neither in thejudgment of Pai Foundation nor in the ConstitutionBench decision in Kerala Education Bill which wasapproved by Pai Foundation, is there anything whichwould allow the State to regulate or control admissions https://hcservices.ecourts.gov.in/hcservices/ in the unaided professional educational institutions soas to compel them to give up a share of the availableseats to the candidates chosen by the State, as if itwas filling the seats available to be filled up at itsdiscretion in such private institutions. This wouldamount to nationalisation of seats which has beenspecifically disapproved in Pai Foundation. Suchimposition of quota of State seats or enforcingreservation policy of the State on available seats inunaided professional institutions are acts constitutingserious encroachment on the right and autonomy ofprivate professional educational institutions. Suchappropriation of seats can also not be held to be aregulatory measure in the interest of the minoritywithin the meaning of Article 30(1) or a reasonablerestriction within the meaning of Article 19(6) of theConstitution. Merely because the resources of theState in providing professional education are limited,private educational institutions, which intend toprovide better professional education, cannot be forcedby the State to make admissions available on the basisof reservation policy to less meritorious candidates.Unaided institutions, as they are not deriving any aidfrom State funds, can have their own admissions iffair, transparent, non-exploitative and based on merit.126The observations in para 68 of the majorityopinion in Pai Foundation on which the learned counselfor the parties have been much at variance in theirsubmissions, according to us, are not to be readdisjointly from other parts of the main judgment. Afew observations contained in certain paragraphs of thejudgment in Pai Foundation if read in isolation, appearconflicting or inconsistent with each other. But ifthe observations made and the conclusions derived areread as a whole, the judgment nowhere lays down thatunaided private educational institutions of minoritiesand non-minorities can be forced to submit to seat-sharing and reservation policy of the State. Readingrelevant parts of the judgment on which learned counselhave made comments and counter-comments and reading thewhole judgment (in the light of previous judgments ofthis Court, which have been approved in Pai Foundation)in our considered opinion, observations in para 68merely permit unaided private institutions to maintainmerit as the criterion of admission by voluntarilyagreeing for seat-sharing with the State or adoptingselection based on common entrance test of the State.There are also observations saying that they may frame https://hcservices.ecourts.gov.in/hcservices/ their own policy to give freeships and scholarships tothe needy and poor students or adopt a policy in linewith the reservation policy of the State to cater tothe educational needs of the weaker and poorer sectionsof the society.127Nowhere in Pai Foundation, either in themajority or in the minority opinion, have we found anyjustification for imposing seat-sharing quota by theState on unaided private professional educationalinstitutions and reservation policy of the State orState quota seats or management seats. 128We make it clear that the observations in PaiFoundation in para 68 and other paragraphs mentioningfixation of percentage of quota are to be read andunderstood as possible consensual arrangements whichcan be reached between unaided private professionalinstitutions and the State.129In Pai Foundation, it has been very clearlyheld at several places that unaided professionalinstitutions should be given greater autonomy indetermination of admission procedure and fee structure.State regulation should be minimal and only with a viewto maintain fairness and transparency in admissionprocedure and to check exploitation of the students bycharging exorbitant money or capitation fees.130For the aforesaid reasons, we cannot approveof the scheme evolved in Islamic Academy to the extentit allows the States to fix quota for seat-sharingbetween the management and the States on the basis oflocal needs of each State, in the unaided privateeducational institutions of both minority and non-minority categories. That part of the judgment inIslamic Academy, in our considered opinion, does notlay down the correct law and runs counter to PaiFoundation.132Our answer to the first question is thatneither the policy of reservation can be enforced bythe State nor any quota or percentage of admissions canbe carved out to be appropriated by the State in aminority or non-minority unaided educationalinstitution. Minority institutions are free to admitstudents of their own choice including students of non-minority community as also members of their owncommunity from other States, both to a limited extent https://hcservices.ecourts.gov.in/hcservices/ only and not in a manner and to such an extent thattheir minority educational institution status is lost.If they do so, they lose the protection of Article 30(1).Q.2Admission procedure of unaided educationalinstitutions133So far as the minority unaided institutionsare concerned to admit students being one of thecomponents of "the right to establish and administer aninstitution", the State cannot interfere therewith. Upto the level of undergraduate education, the minorityunaided educational institutions enjoy total freedom.134However, different considerations would applyfor graduate and postgraduate level of education, asalso for technical and professional educationalinstitutions. Such education cannot be imparted by anyinstitution unless recognised by or affiliated with anycompetent authority created by law, such as auniversity, Board, Central or State Government or thelike. Excellence in education and maintenance of highstandards at this level are a must. To fulfil theseobjectives, the State can and rather must, in nationalinterest, step in. The education, knowledge andlearning at this level possessed by individualscollectively constitutes national wealth.136Such institutions situated in one State or inmore than one State may join together and hold a commonentrance test or the State may itself or through anagency arrange for holding of such test. . . . Holdingof such common entrance test followed by centralisedcounselling or, in other words, single-window systemregulating admissions does not cause any dent in theright of minority unaided educational institutions toadmit students of their choice. Such choice can beexercised from out of the list of successful candidatesprepared at CET without altering the order of meritinter se of the students so chosen.137Pai Foundation has held that minority unaidedinstitutions can legitimately claim unfetteredfundamental right to choose the students to be allowedadmission and the procedure therefor subject to itsbeing fair, transparent and non-exploitative. The sameprinciple applies to non-minority unaided institutions.There may be a single institution imparting a https://hcservices.ecourts.gov.in/hcservices/ particular type of education which is not beingimparted by any other institution and having its ownadmission procedure fulfilling the test of being fair,transparent and non-exploitative. All institutionsimparting same or similar professional education canjoin together for holding a common entrance testsatisfying the abovesaid triple tests. The State canalso provide a procedure of holding a common entrancetest in the interest of securing fair and merit-basedadmissions and preventing mal-administration. Theadmission procedure so adopted by a private institutionor group of institutions, if it fails to satisfy all orany of the triple tests, indicated hereinabove, can betaken over by the State substituting its own procedure.The second question is answered accordingly.138It needs to be specifically stated thathaving regard to the larger interest and welfare of thestudent community to promote merit, achieve excellenceand curb mal-practices, it would be permissible toregulate admissions by providing a centralised andsingle window procedure. Such a procedure, to a largeextent, can secure grant of merit-based admissions on atransparent basis . . "28Mr. Satish Parasaran, learned counsel for the petitioner in W.P.No.21026 of 2007 which is a non-minority medical college, like the otherSenior Counsel appearing for the petitioners, has challenged the threeprovisions of the Act and the consequential G.O. Ms.No.87 dated 16.03.2007and contended that there is no consensus between the Management and theGovernment in seat-sharing and whatever the decision of the Supreme Courtin respect of engineering colleges is equally applicable to the MedicalColleges also. He has adopted the arguments advanced by four SeniorCounsel appearing for the other petitioners in assailing the impugned Actand has more particularly questioned the impugned Act insofar as itprovides for centralised counselling which is affecting the petitionerinstitution. Lastly, he has contended that the fundamental rightsguaranteed under Part III of the Constitution in protecting the interestof the unaided non-minority educational institutions is to be safeguardedand any legislation which infringes the fundamental rights guaranteedunder the Constitution has to be struck down.29Rebutting the arguments advanced by the learned Senior Counselappearing for the petitioners, Mr. R. Vidudalai, learned Advocate General,on behalf of the State, has contended that:a.there is always a presumption in favour of constitutionalvalidity of an enactment and the burden is upon the person whoattacks it to show that there has been a clear transgression ofconstitutional principles; https://hcservices.ecourts.gov.in/hcservices/ b.it must be presumed that the legislature understands andcorrectly appreciates the need of its own people, that its laws aredirected to problems made manifest by experience and that itsdiscriminations are based on adequate grounds; c.in order to sustain the presumption of constitutionality,the Court may take into consideration matters of knowledge, mattersof common report, history of the times and may assume every state offacts which can be conceived existing at the time of legislation,good faith and knowledge of the existing conditions on the part oflegislation;30On the above aspect, the learned Advocate General has placedreliance on:a.a judgment of the Supreme Court reported in (2005) 12 SCC 77 inthe matter of State of Rajasthan and others vs. Basant Nahata (paras 15and 16)"Presumption as to constitutionality of a statute15.Indisputably, there exists a presumption asregards the constitutionality of a statute. Rule ofpresumption in favour of constitutionality, however,only shifts the burden of proof and rests it on theshoulders of the person who attacks it. It is for thatperson to show that there has been a cleartransgression of constitutional principles. But thisrule is subject to the limitation that it is operativeonly till the time it becomes clear and beyondreasonable doubt that the legislature has crossed itslimits. This rule in its application as principle ofconstruction means that if two meanings are possiblethen the courts will reject the one which renders itunconstitutional and accept the other upholding thevalidity of the impugned legislation.16.In Union of India vs. Elphinstone Spg. andWvg. Co. Ltd., it was stated:"9.A statute is construed so as tomake it effective and operative. There isalways a presumption that the legislaturedoes not exceed its jurisdiction and theburden of establishing that the legislaturehas transgressed constitutional mandates,such as those relating to fundamentalrights, is always on the person who https://hcservices.ecourts.gov.in/hcservices/ challenges its vires. Unless it becomesclear beyond reasonable doubt that thelegislation in question transgresses thelimits laid down by the organic law of theConstitution it must be allowed to stand asthe true expression of the national will.The aforesaid principle, however, is subjectto one exception that if a citizen is ableto establish that the legislation hasinvaded its fundamental rights then theState must justify that the law is saved.It is also a cardinal rule of constructionthat if one one construction being given thestatute will become ultra vires the powersof the legislature whereas on anotherconstruction which may be open, the statuteremains effective and operative, then thecourt will prefer the latter, on the groundthat the legislature is presumed not to haveintended an excess of jurisdiction."b.AIR 1977 SC 2279 in the matter of R.S. Joshi, etc. vs. AjitMills Limited and another, etc. (para 2)"A prefatory caveat. When examining a legislationfrom the angle of its vires, the Court has to beresilient, not rigid, forward-looking, not static,liberal, not verbal in interpreting the organic law ofthe nation. We must also remember the constitutionalproposition enunciated by the U.S. Supreme Court inMunn v. Illinois (1876) 94 US 113 (quoted in LaborBoard v. Jones and Laughlin, (1936) 301 US 1, 33-34 –Corwin, Constitution of the USA, Introduction, p.xxxi)viz., 'that courts do not substitute their social andeconomic beliefs for the judgment of legislativebodies.' Moreover, while trespasses will not beforgiven, a presumption of constitutionality mustcolour judicial construction. These factors,recognised by our Court, are essential to the modusvivendi between the judicial and legislative branchesof the State, both working beneath the canopy of theConstitution."31The learned Advocate General has further argued that thepetitioners have not rebutted this presumption and have rather dischargedthe onus placed on them and it is always settled law that the Courtsshould lean in favour of constitutionality of a legislation and resort toharmonious construction and purposive interpretation wherever such anexercise is called for. https://hcservices.ecourts.gov.in/hcservices/ 32Further, the learned Advocate General has contended that the Actunder challenge does not run contrary to the judgment of the Supreme Courtsince paras 68 to 70 of the judgment in Pai Foundation case are clear andcategorical. According to him, the judgment in Inamdar case was not madeto overrule the judgment of Pai Foundation and the judgment in the formercase has set right the inconsistency between the judgment in PaiFoundation case and Islamic Academy case and there is no law laid down bythe Supreme Court in Inamdar case.33While rejecting the contention of the learned Senior Counsel forthe petitioners that the Unni Krishnan case has been re-introduced, thelearned Advocate General has argued that the impugned Act substantiallyimplements the law declared by the Supreme Court in Pai Foundation caseand as such, the contention of the learned Senior Counsel for thepetitioners has to be brushed aside. It is his further contention thatthe Act under challenge has come as a great relief to the studentcommunity and it is not an exercise in futility since the substance of theAct is not to nationalise the seats, but to prevent commercialisation ofeducation and that judicial notice can be taken of the undesirablepractice adopted by the self-financing colleges/professional institutionsin admitting students for considerations other than merit. 34The learned Advocate General has further contended thatadmissions are completed even before merit list of candidates is publishedand in respect of non-members of consortium, it would be made by anauthority authorised or approved by the State Government in this behalfand in case of equality of marks, the concept of assigning random numberswhich is a logical method in Statistics, is more rational than theexisting method of drawal of lots, as the ultimate parameter.35In reply to the query raised in regard to the consensualarrangement on seat-sharing, the Advocate General has argued that itcannot be confined to an annual exercise prejudicially affecting theinterests of the students and creating uncertainty in their minds. Thefurther contention of the Advocate General is that the State quota doesnot mean any quota for the State Government as such, but only means thenumber or percentage of seats in self-financing colleges in whichadmission is made by the State agency ensuring admission based on absolutemerit, transparency and non-exploitative procedure. In this regard, hehas further contended that the State may devise a suitable mechanism so asto take care of the poorer and weaker sections of the society and havingregard to the larger interest and welfare of the student community topromote merit, achieve excellence and curb mal-practices, it would bepermissible to regulate admissions by way of centralised counselling andsuch a procedure, to a large extent, can secure grant of merit-basedadmissions on a transparent basis as per the law laid down in paragraph138 of the judgment in Inamdar case. https://hcservices.ecourts.gov.in/hcservices/ 36On the point of reservation policy in the unaided privateeducational institutions of minorities and non-minorities, the learnedAdvocate General has argued that observations in para 68 merely permitunaided private institutions to maintain merit as the criterion ofadmission by voluntarily agreeing for seat-sharing with the State or toadopt selection based on common entrance test of the State and there arealso observations saying that they may frame their own policy to givefreeships and scholarships to the needy and poor students or adopt apolicy in line with the reservation policy of the State to cater to theeducational needs of the weaker and poorer sections of the society. It ishis further contention that the observations in the judgment of PaiFoundation case in para 68 and other paragraphs mentioning fixation ofpercentage of quota are to be read and understood as possible consensualarrangements which can be reached between unaided private professionalinstitutions and the State.37He has further contended that the ruling of the 11 Judge Benchin Pai Foundation case, in paragraph 68, to the effect that a certainpercentage of the seats can be reserved for admission by the managementout of those students who have passed the common entrance test held byitself or by the State/University and have applied to the collegeconcerned for admission, while the rest of the seats may be filled up onthe basis of counselling by the State agency and this will incidentallytake care of poorer and backward sections of the society and theprescription of percentage for this purpose has to be done by theGovernment according to the local needs and different percentages can befixed for minority unaided and non-minority unaided and professionalcolleges and the same principles may be applied to other non-professionalbut unaided educational institutions viz., graduation and post-graduationnon-professional colleges or institutes, underlines the power of the StateGovernment to consider the communal reservation based on the said Actenacted as Act No.45 of 1994 which is peculiar to the State of Tamil Nadu.38It is contended by the learned Advocate General that the threecomponents of consensual arrangement, viz., seat-sharing, single windowsystem and specifying the academic year are to be read in the light of lawlaid down by this Court in its judgment reported in (2006) 3 MLJ 648,pursuant to the judgment in Inamdar case. 39It is further contended by the learned Advocate General that:a.the question of reasonableness does not arise whenconsensual arrangement is incorporated and over the past two decades,seat-sharing had been done in the ratio of 50%-50% for non-minorityinstitutions and 30%-70% for minority institutions under State quotaand Management quota respectively and hence, the consensualarrangement made in Section 2(c)(iii) is perfectly in accordance withlaw and there is no unconstitutionality to strike down the Act. https://hcservices.ecourts.gov.in/hcservices/ b.Section 4(1) of the Act cannot be construed to be inviolation of Article 30 in view of the judgment in St. Stephen'sCollege case and para 136 of the judgment in Inamdar case makes itclear and categorical that centralised counselling does not runcontrary to the constitutional guarantee contained in Article 30 andin St. Stephen's College case, it was a college of Arts and Scienceand not a professional college and that case was concerned with thevalidity of a circular issued by the Delhi University and not withany State legislature and in view of this, the law laid down in St.Stephen's College case is clearly distinguishable.40In support of his argument that the judgment of the SupremeCourt in St. Stephen's College case is distinguishable, the AdvocateGeneral has relied on paras 14 and 16 of the said judgment which read asunder:"The Allahabad Agricultural Institute:14.This is a professional college which offersseveral courses of study ini Agricultural Sciences. Itis undisputedly an institution established andadministered by the Christian religious minority. In1911, it was founded by Christians under theleadership of Dr. Sam Higginbothom. It is now locatedon the right bank of Jamuna river at a tiny placecalled Naini in the famous pilgrimage and educationcentre of Allahabad. It has 600 acres campusincluding staff quarters, men's and women's hostels,library and administration buildings within tendepartments and auxiliary units of the Institute. Theinstitution imparts education in several courses ofstudy like Inter Agriculture, Inter Home Science,Indian Dairy Diploma (IDD), B.Sc. in Agriculture,B.Sc. Home Economics, B.Tech. in AgriculturalEngineering, M.Sc. in Agriculture and M.Sc. inAgricultural Engineering. It claims to be a nationalinstitute and every year it holds entrance test atdifferent centres. . . .(1)In order to strengthen the spiritof national integration and to bring aboutthe all Indian character of the Institute,the distribution of the seats will be asfollows:(2)Scheduled Caste students whoqualify the Entrance Test and old studentswill be adjusted in each of the respectivequota and zones first. https://hcservices.ecourts.gov.in/hcservices/ (3)In each of the categories onlythose who have qualified in the entrance testwill be considered and admitted strictly inorder of merit within each list.(4)Disciplinary action – Any studentwho has a disciplinary action taken againsthim/her will not be admitted to any course inthis Institute.(5)Not less than 25 per cent of theenrollment shall be women students."16.Being aggrieved by the decision of the HighCourt, the Institute by obtaining certificate underArticle 133(1)(a) of the Constitution has preferredCivil Appeal Nos.1831-41 of 1989. Civil AppealNos.1786 of 1989 and 2829 of 1989 are by some of thestudents. They are connected appeals against the samejudgment of the Allahabad High Court."41As regards the manner in which the the phrase "appropriateauthority" as defined under Section 2(a) of the Act has to be interpreted,the learned Advocate General has contended that it is referable only toSection 3 in respect of admission to Government seats and this is madeclear by Section 5(4) which has concisely employed the term "respectively"to specify the distinction between "appropriate authority" and "consortiumof self-financing colleges" and the phraseology employed in Section 4(1)of the Act "Authority authorised by the Government" has to be understoodwith reference to the context in which the same is used and the principleof interpreting the statutory provision, taking into consideration thecontextual connotation, the scheme of the Act and its provisions in itsentirety, make it very clear that the "authority authorised by theGovernment" is an authority distinct and different from the "appropriateauthority" as defined in Section 2(a) of the Act and if so read andunderstood, there is no scope or necessity for reading down the provisionsof Section 4(1) and as such, there is no ambiguity, illegality orunreasonableness in the Act to strike down the same;42On the aspect of "reading down", the Advocate General has placedreliance on a judgment of the Supreme Court reported in (2007) 1 SCC 732in the case of Arun Kumar and others vs. Union of India and others (paras55 & 64)"55The doctrine of "reading down" is well knownin the field of constitutional law. Colin Howard inhis well-known work Australian Federal ConstitutionalLaw states: https://hcservices.ecourts.gov.in/hcservices/ "Reading down puts into operation theprinciple that so far as it is reasonablypossible to do so, legislation should beconstrued as being within power. It has thepractical effect that where an Act isexpressed in language of a generality whichmakes it capable, if read literally, ofapplying to matters beyond the relevantlegislative power, the Court will construeit in a more limited sense so as to keep itwithin power."64.Similarly, in Delhi Transport Corpn. v. DTCMazdoor Congress, the validity and vires of Regulation9(b) of the Delhi Road Transport Authority (Conditionsof Appointment and Service) Regulations, 1952 relatingto "termination of service" was challenged. Itprovided for termination of service of permanentemployees of the Corporation on one month's notice orpay in lieu of notice without any enquiry whatsoever.The provision was challenged, being ultra vires theConstitution, violative of the principles of naturaljustice and inconsistent with Section 23 of theContract Act, 1872. One of the questions raisedbefore this Court was whether it would be open to acourt of law to apply the formula of "reading down"and save the provision by importing natural justiceinto it. The majority (4:1) held the provision ultravires and unconstitutional by describing it as "HenryVIII clause" and refusing to apply the doctrine of"reading down". It held that the language of theregulation was clear, unambiguous and explicit and itwas not permissible for the court to read downsomething not intended by the Regulations. Thedoctrine of reading down may be applied if the statuteis silent, ambiguous or allows more than oneinterpretation. But where it is express and clearlymandates to take certain actions, the function of thecourt is to interpret it plainly and declare intravires or ultra vires without adding, altering orsubtracting anything therein."43With regard to the contention of the learned Senior Counsel forthe petitioners that the impugned Act is the result of colourable exerciseof power, the learned Advocate General has contended that the doctrine ofcolourable exercise of power is a constitutional law and this doctrineapplies only to transgression or encroachment by the legislature into https://hcservices.ecourts.gov.in/hcservices/ areas where they are not competent to legislate and therefore, in theabsence of any legislative incompetency, there is no point of law to saythat there is colourable exercise of power in the impugned Act which hasto be upheld. In this context, the Advocate General has relied on:a.a judgment of the Supreme Court reported in (2003) 9 SCC 358 inthe case of Welfare Association, A.R.P. Maharashtra and another vs. RanjitP. Gohil and others (para 42)"42.The doctrine of colourable legislation cameto be examined by a Constitution bench of this Courtin K.C. Gajapati Narayan Deo v. State of Orissa. Itwas held that the doctrine of colourable legislationdoes not involve any question of bona fides or malafides on the part of the legislature. The wholedoctrine resolves itself into the question ofcompetency of a particular legislature to enact aparticular law. If the legislature is competent topass a particular law, the motives which impelled itto act are really irrelevant. On the other hand, ifthe legislature lacks competency, the question ofmotives does not arise at all. Whether a statute isconstitutional or not is thus always a question ofpower. The crucial question to be asked is whetherthere has been a transgression of legislativeauthority as conferred by the Constitution which isthe source of all powers as also the separation ofpowers. A legislative transgression may be patent,manifest or direct or may also be disguised, covertand indirect. It is to this latter class of casesthat the expression "colourable legislation" has beenapplied in certain judicial pronouncements. Theexpression means that although apparently alegislature in passing a statute which purports to actwithin the limits of its powers, yet in substance andin reality it transgresses those powers, thetransgression being veiled by what appears, on properexamination, to be a mere pretence or disguise. Thediscerning test is to find out the substance of theAct and not merely the form or outward appearance. Ifthe subject-matter in substance is something which isbeyond the legislative power, the form in which thelaw is clothed would not save it from condemnation.The constitutional prohibitions cannot be allowed tobe violated by employing indirect methods. To testthe true nature and character of the challengedlegislation, the investigation by the court should bedirected towards examining (i) the effect of thelegislation and (ii) its object, purpose or design. https://hcservices.ecourts.gov.in/hcservices/ While doing so, the court cannot enter intoinvestigating the motives, which induced thelegislature to exercise its power."b.yet another judgment of the Supreme Court reported in (1997) 8SCC 522 in the case of S.S. Bola and others vs. B.D. Sardana and others(para 132)"Colourable legislation would emerge only alegislature has no power to legislate on an item eitherbecause it is not included in the list assigned to itunder the respective entries in the Seventh Schedule tothe Constitution or on account of limitations imposedeither under Part III of the Constitution relating toFundamental Rights or any other power under theConstitution. As the legislature enacts on anassumption of such power, but when on examination, ifit is found that it has travelled beyond its power orcompetence or in transgression of the limitationsimposed by the Constitution itself, such an enactmentis called a colourable legislation. It has referenceonly to the legislative incompetence and not to thepower as such. If the legislature enacts law in thepretext of the exercise of its legislative power,though actually it did not possess such power, thelegislation to that extent becomes void as thelegislature makes its Act only in pretence of and inpurported colourable exercise of its power."44To elucidate as to how a legislation has to be interpreted, thelearned Advocate General has placed reliance on: aa judgment of the Supreme Court reported in (2005) 2 SCC 409 inthe matter of Prakash Kumar alias Prakash Bhutto vs. State of Gujarat(para 20)"Before we proceed to consider the rigours ofSections 15 and 12, we may at this stage point out thatit is a trite law that the jurisdiction of the court tointerpret a statute can be invoked only in case ofambiguity. The court cannot enlarge the scope oflegislation or intention when the language of thestatute is plain and unambiguous. Narrow and pedanticconstruction may not always be given effect to. Courtsshould avoid a construction which would reduce thelegislation to futility. It is also well settled thatevery statute is to be interpreted without any violenceto its language. It is also trite that when anexpression is capable of more than one meaning, thecourt would attempt to resolve the ambiguity in a https://hcservices.ecourts.gov.in/hcservices/ manner consistent with the purpose of the provision,having regard to the consequences of the alternativeconstructions. In this connection, we may notice a fewdecisions of this Court. "banother judgment of the Supreme Court reported in (2005) 2 SCC271 in the matter of Nathi Devi vs. Radha Devi Gupta (paras 13 to 18)"13The interpretative function of the court isto discover the true legislative intent. It is tritethat in interpreting a statute, the court must, if thewords are clear, plain, unambiguous and reasonablysusceptible to only one meaning, give to the words thatmeaning, irrespective of the consequences. Those wordsmust be expounded in their natural and ordinary sense.When the language is plain and unambiguous and admitsof only one meaning, no question of construction ofstatute arises, for the Act speaks for itself. Courtsare not concerned with the policy involved or that theresults are injurious or otherwise, which may followfrom giving effect to the language used. If the wordsused are capable of one construction only then it wouldnot be open to the courts to adopt any otherhypothetical construction on the ground that suchconstruction is more consistent with the alleged objectand policy of the Act. In considering whether there isambiguity, the court must look at the statute as awhole and consider the appropriateness of the meaningin a particular context avoiding absurdity andinconsistencies or unreasonableness which may renderthe statute unconstitutional.14It is equally well settled that ininterpreting a statute, effort should be made to giveeffect to each and every word used by the legislature.The courts always presume that the legislature insertedevery part thereof for a purpose and the legislativeintention is that every part of the statute should haveeffect. A construction which attributes redundancy tothe legislature will not be accepted except forcompelling reasons such as obvious drafting errors. 15It is well settled that literalinterpretation should be given to a statute if the samedoes not lead to an absurdity.16In Nasiruddin v. Sita Ram Agarwal, this courtstated the law in the following terms:"37.The court's jurisdiction to https://hcservices.ecourts.gov.in/hcservices/ interpret a statute can be invoked when thesame is ambiguous. It is well known that ina given case the court can iron out thefabric but it cannot change the texture ofthe fabric. It cannot enlarge the scope oflegislation or intention when the languageof the provision is plain and unambiguous.It cannot add or subtract words to a statuteor read something into it which is notthere. It cannot rewrite or recastlegislation. It is also necessary todetermine that there exists a presumptionthat the legislature has not used anysuperfluous words. It is well settled thatthe real intention of the legislation mustbe gathered from the language used. It maybe true that use of the expression "shall ormay" is not decisive for arriving at afinding as to whether the statute isdirectory or mandatory. But the intentionof the legislature must be found out fromthe scheme of the Act. It is also equallywell settled that when negative words areused the courts will presume that theintention of the legislature was that theprovisions are mandatory in character."17Even if there exists some ambiguity in thelanguage or the same is capable of two interpretations,it is trite that the interpretation which serves theobject and purport of the Act must be given effect to.In such a case, the doctrine of purposive constructionshould be adopted.18In High Court of Gujarat v. Gujarat KishanMazdoor Panchayat this Court held:"35.This court while interpreting theprovision of a statute, although, is notentitled to rewrite the statute itself, isnot debarred from 'ironing out the creases'.The court should always make an attempt touphold the rules and interpret the same insuch a manner which would make it workable.36.It is also a well-settledprinciple of law that an attempt should bemade to give effect to each and every wordemployed in a statute and such https://hcservices.ecourts.gov.in/hcservices/ interpretation which would render aparticular provision redundant or otioseshould be avoided."c.yet another judgment of the Supreme Court reported in (2003) 7SCC 589 in the case of Indian Handicrafts Emporium and others vs. Union ofIndia & others (paras 99, 102 & 103)"102.In District Mining Officer v. Tata Iron& Steel Co., this Court stated:"A statute is an edict of thelegislature and in construing a statute, itis necessary to seek the intention of itsmaker. A statute has to be construedaccording to the intent of them that make itand the duty of the court is to act upon thetrue intention of the legislature. If astatutory provision is open to more than oneinterpretation, the court has to choose thatinterpretation which represents the trueintention of the legislature. This taskvery often raises difficulties because ofvarious reasons, inasmuch as the words usedmay not be scientific symbols having anyprecise or definite meaning and the languagemay be an imperfect medium to convey one'sthought or that the assembly of legislaturesconsisting of persons of various shades ofopinion purport to convey a meaning whichmay be obscure. It is impossible even forthe most imaginative legislature toforestall exhaustively situations andcircumstances that may emerge after enactinga statute where its application may becalled for. Nonetheless, the function ofthe courts is only to expound and not tolegislate. Legislation in a modern State isactuated with some policy to curb somepublic evil or to effectuate some publicbenefit. The legislation is primarilydirected to the problems before thelegislature based on information derivedfrom past and present experience. It mayalso be designed by use of general words tocover similar problems arising in future.But, from the very nature of things, it isimpossible to anticipate fully the variedsituations arising in future in which the https://hcservices.ecourts.gov.in/hcservices/ application of the legislation in hand maybe called for and words chosen tocommunicate such indefinite referents arebound to be in many cases, lacking inclarity and precision and thus giving riseto controversial questions of construction.The process of construction combines bothliteral and purposive approaches. In otherwords, the legislative intention, i.e. thetrue or legal meaning of an enactment isderived by considering the meaning of thewords used in the enactment in the light ofany discernible purpose or object whichcomprehends the mischief and its remedy towhich the enactment is directed."103.In State of A.P. v. McDowell & Co., thisCourt held:"An enactment cannot be struck down onthe ground that court thinks it unjustified.Parliament and the legislatures, composed asthey are of the representatives of thepeople, are supposed to know and be aware ofthe need of the people and what is good andbad for them. The court cannot sit injudgment over their wisdom. In thisconnection, it should be remembered that evenin the case of administrative action, thescope of judicial review is limited to threegrounds, viz., (i) unreasonableness, whichcan more appropriately be calledirrationality, (ii) illegality and (iii)procedural impropriety. The applicabilityof doctrine of proportionality even inadministrative law sphere is yet a debatableissue. It would be rather odd if anenactment were to be struck down by applyingthe said principle when its applicabilityeven in administrative law sphere is notfully and finally settled."45During the course of his arguments, the learned AdvocateGeneral, in support of his contentions, has relied on the judgments of theSupreme Court in Islamic Academy case and Inamdar case and the relevantparas relied on by him are as below:Islamic Academy case: https://hcservices.ecourts.gov.in/hcservices/ "19The Committee shall have the powers tooversee the tests to be conducted by the association.This would include the power to call for the proposedquestion paper(s), to know the names of the paper-setters and examiners and to check the method adoptedto ensure papers are not leaked. The Committee shallsupervise and ensure that the test is conducted in afair and transparent manner. The Committee shall havethe power to permit an institution which has beenestablished and which has been permitted to adopt itsown admission procedure for the last, at least, 25years, to adopt its own admission procedure, and if theCommittee feels that the needs of such an institute aregenuine, to admit, students of their community, inexcess of the quota allotted to them by the StateGovernment.20Our direction for setting up two sets ofCommittees in the States has been passed under Article142 of the Constitution of India which shall remain inforce till appropriate legislation is enacted byParliament. The expenses incurred on the setting up ofsuch Committees shall be borne by each State. Theinfrastructural needs and provision for allowance andremuneration of the Chairman and other members of thecommittee shall also be borne by the respective StateGovernment."P.A. Inamdar case:"153We have placed on record in the earlier partof this judgment and, yet, before parting we would liketo reiterate, that certain recitals, certainobservations and certain findings in Pai Foundation arecontradictory inter se and such conflict can only beresolved by a Bench of a coram larger than PaiFoundation. There are several questions which haveremained unanswered and there are certain questionswhich have cropped up post Pai Foundation and IslamicAcademy. To the extent the area is left open, theBenches hearing individual cases after this judgmentwould find the answers. Issues referable to thoseareas which are as which are already covered by PaiFoundation and yet open to question shall have to beanswered by a Bench of a larger coram than PaiFoundation. We leave those issues to be taken care ofby posterity. https://hcservices.ecourts.gov.in/hcservices/

154. . . This judgment shall not have the effectof disturbing the admissions already made or withregard to which the process has already commenced. Thelaw, as laid down in this judgment, shall be giveneffect to from the academic year commencing next afterthe pronouncement of this judgment.155It is for the Central Government, or for theState Governments, in the absence of a Centrallegislation, to come out with a detailed well-thought-out legislation on the subject. Such a legislation islong awaited. The States must act towards thisdirection. The judicial wing of the State is calledupon to act when the other two wings, the legislatureand the executive, do not act. The earlier the Unionof India and the State Governments act, the better itwould be. The Committees regulating admissionprocedure and fee structure shall continue to exist,but only as a temporary measure and an inevitablepassing phase until the Central Government or the StateGovernments are able to devise a suitable mechanismand appoint a competent authority in consonance withthe observations made hereinabove. Needless to say,any decision taken by such Committees and by theCentral or the State Governments, shall be open tojudicial review in accordance with the settledparameters for the exercise of such jurisdiction.46To supplement his argument that the Statement of Objects andReasons need not necessarily spell out the entire scheme of the Act, thelearned Advocate General has relied on a decision of the Supreme Courtreported in (2006) 7 SCC 1 in the case of Kuldip Nayar vs. Union of India(para 280)"As regards the criticism that the reasons givenin the counter-affidavit of the Union of India aredistinct from those set out in the Statement ofObjects and Reasons of the Bill that became theimpugned law, we may only state that the Statement ofObjects and Reasons of a proposed legislation is notthe compendium of all possible reasons orjustification. We do not find any contradiction inthe stand taken by the Union of India in theseproceedings in relation to the Statement of Objectsand Reasons of the impugned amendment."47In support of his arguments, the learned Advocate General hasfurther relied on a judgment of the Supreme Court reported in 2007 (2) CTC https://hcservices.ecourts.gov.in/hcservices/ 677 in the matter of Minor S. Aswin Kumar & others vs. State of Tamil Nadurepresented by its Secretary to Government, Higher Education Department,Fort. St. George, Chennai – 2 & others (para 53)"53.When a Common Entrance Test is prescribed,it may mean merely a method of selection or relatableto laying down of a minimum standard. If it is onlythe method of selection and not relatable laying ofstandard as such, the law is traceable to Entry 25 ofList III, but, if it prescribes "standard", it owesits origin to Entry 66 of List I. In the latter case,the State cannot make any law impinging upon the lawrelatable to Entry 66 of List I. However, where suchCentral law is not relatable to Entry 66 of List I butEntry 25 of List III, the State can make law undersuch Concurrent List and if there is any conflict theState law may prevail provided Article 254(2) iscomplied with. Even though the State can prescribehigher standard it cannot make a Central Act mugatory(see Adhiyaman's case). Where Common Entrance Test ismerely the basis of selection, it may come under Entry25 of List III rather than under Entry 66 of List I.Where, however, the Central Rule prescribes minimummarks either in qualifying examination or in CommonEntrance Test or in both, it is obviously relatable toEntry 66 of List I rather than Entry 25 of List III asit intends to lay down a particular standard. Layingof higher standard by State is possible, but loweringof standard is not possible. Where there is scope forconstruing that Medical Council of India Regulation,AICTE Regulation prescribe Common Entrance Test forshort listing the candidates or method of selection atthe graduate level without prescribing any minimummarks, it is possible to construe that such regulationis pursuant to jurisdiction under Entry 25 of List IIIrather than Entry 66 of List I."48While defending the Act, the learned Advocate General, at theend of his arguments, has submitted that the Government, while bringingthe Act into force, has taken note of the local needs of the State,particularly the population of the various sections of the society, theminority population in particular, which is a matter of State policy andthus, while giving importance to the consensual arrangement, theLegislature has taken note of the very purpose of the legislation and theState has made use of its power to make laws to achieve the constitutionalgoals, bearing in mind, the rulings of the Supreme Court in Pai Foundationcase and Inamdar case and therefore, the Act is not impugned withinconsistency or ambiguity or colourable exercise of power nor there islegislative incompetency on the part of the State in passing the Act andas such, the Act need not be struck down since it is perfectly in order. https://hcservices.ecourts.gov.in/hcservices/ 49In the light of the various contentions raised by the learnedSenior Counsel appearing for the petitioners and the learned AdvocateGeneral on behalf of the State, let me proceed to examine whether theSections challenged in the Act, viz., 2(c)(iii), 4(1) and 5(4) are againstthe rights guaranteed under the Constitution of India under Articles 19(1)(g) and 30. In this context, the jurisdiction of the Court to interpret astatute in the light of the true legislative intent needs to benecessarily looked into. There are circumstances when a statute can beinterpreted when the same is ambiguous; but while doing so, the Court caniron out the fabric, but, it cannot change the texture of the fabric. Itcannot enlarge the scope of legislation or intention when the language ofthe provision is plain and unambiguous. It is trite that in interpretinga statute, the court must, if the words are clear, plain, unambiguous andreasonably susceptible to only one meaning, give to the words thatmeaning, irrespective of the consequences. Those words must be expoundedin their natural and ordinary sense.50The scope of this Court is only to expound and not to legislate.In a modern State, the legislation is actuated with some policy to curbsome public evil or to effectuate some public benefit. The legislation isprimarily directed to the problems before the legislature based on thefacts derived from past and present experience. It is impossible toanticipate fully, the varied situations arising in future in which theapplication of the legislation in hand may be called for and words chosento communicate such indefinite referents are bound to be in many cases,lacking in clarity and precision and thus giving rise to controversialquestions of construction. A statute is best interpreted when we know whyit is enacted. The statute must be read, first as a whole, and thensection by section, clause by clause, phrase by phrase and word by wordand last but not the least, the real intention of the statute maker also,needs to be looked into. The court cannot sit in judgment over the wisdomof the Legislature and an enactment cannot be struck down on the groundthat the Court thinks it unjustified. Parliament and the legislatures,composed as they are of the representatives of the people, are supposed toknow and be aware of the need of the people and what is good and bad forthem.51While Article 19(1)(g) of the Constitution provides that allcitizens shall have the right to practise any profession or to carry onany occupation, trade or business, Article 19(6) provides that nothing insub-clause (g) of Article 19(1) shall affect the operation of any existinglaw in so far as it imposes or prevent the State from making any lawimposing, in the interests of the general public, reasonable restrictionson the exercise of the rights conferred by the said sub-clause, and inparticular, nothing in the said sub-clause shall affect the operation ofany existing law in so far as it relates to, or prevent the State frommaking any law relating to the professional or technical qualificationsnecessary for practising any profession or carrying on any occupation, https://hcservices.ecourts.gov.in/hcservices/ trade or business. Further, Article 30(1) provides that all minorities,whether based on religion or language, shall have the right to establishand administer educational institutions of their choice and theseprovisions provide for their right to establish an educationalinstitution, for charity or for profit, being an occupation, is protectedby Article 19(1)(g). Notwithstanding the fact that the right of aminority to establish and administer an educational institution would beprotected by Article 19(1)(g), yet the founding fathers of theConstitution felt the need for enacting Article 30. Therefore, Article 30(1) is intended to instil confidence in minorities against any executiveor legislative encroachment on their right to establish and administereducational institution of their choice. In other words, it is aprotection for the minorities which is guaranteed for the minorities underthis Article. But for this Article, an educational institution, eventhough based on religion or language, could have been controlled orregulated by law enacted under Article 19(6) and so, Article 30 wasenacted as a guarantee to the minorities that so far as the religious orlinguistic minorities are concerned, educational institutions of theirchoice will enjoy protection from such legislation. It is made clear thatwhatever the guarantees which are available to them have always beencontrolled or regulated by law under Article 19(6).52In the light of the above, it is to be seen whether the impugnedAct has infringed in any way the rights available to the minorityeducational institutions. 53Now, coming to Section 2(c)(iii) of the Act is concerned, it isto be seen whether it infringes the rights guaranteed under Article 19(1)(g) and Article 30 of the Constitution.54To examine this aspect, it would be worth referring to the lawlaid down by the Supreme Court in Pai Foundation case, in which, therelevant portion of para 68, reads as under:"It would, therefore, be permissible for theuniversity or the Government, at the time of grantingrecognition, to require a private unaided institutionto provide for merit-based selection while, at thesame time, giving the management sufficient discretionin admitting students. This can be done throughvarious methods. For instance, a certain percentageof the seats can be reserved for admission by themanagement out of those students who have passed thecommon entrance test held by itself or by theState/University and have applied to the collegeconcerned for admission, while the rest of the seatsmay be filled up on the basis of counselling by theState agency. This will incidentally take care ofpoorer and backward sections of the society. Theprescription of percentage for this purpose has to be https://hcservices.ecourts.gov.in/hcservices/ done by the Government according to the local needsand different percentages can be fixed for minorityunaided and non-minority unaided and professionalcolleges."55The Supreme Court, in its judgment in Inamdar case, hasreiterated the above position in para 125 and the relevant portion of itreads as below:". . . neither in the judgment of Pai Foundationnor in the Constitution Bench decision in KeralaEducation Bill which was approved by Pai Foundation,is there anything which would allow the State toregulate or control admissions in the unaidedprofessional educational institutions so as to compelthem to give up a share of the available seats to thecandidates chosen by the State, as if it was fillingthe seats available to be filled up at its discretionin such private institutions. This would amount tonationalisation of seats which has been specificallydisapproved in Pai Foundation. Such imposition ofquota of State seats or enforcing reservation policyof the State on available seats in unaidedprofessional institutions are acts constitutingserious encroachment on the right and autonomy ofprivate professional educational institutions. Suchappropriation of seats can also not be held to be aregulatory measure in the interest of the minoritywithin the meaning of Article 30(1) or a reasonablerestriction within the meaning of Article 19(6) of theConstitution. Merely because the resources of theState in providing professional education are limited,private educational institutions, which intend toprovide better professional education, cannot beforced by the State to make admissions available onthe basis of reservation policy to less meritoriouscandidates. Unaided institutions, as they are notderiving any aid from State funds, can have their ownadmissions if fair, transparent, non-exploitative andbased on merit."56In para 126 of the judgment of the Supreme Court in Inamdarcase, it was held as follows:". . .reading the whole judgment (in the light ofprevious judgments of this Court, which have beenapproved in Pai Foundation) in our considered opinion,observations in para 68 merely permit unaided privateinstitutions to maintain merit as the criterion ofadmission by voluntarily agreeing for seat-sharing withthe State or adopting selection based on common https://hcservices.ecourts.gov.in/hcservices/ entrance test of the State. There are alsoobservations saying that they may frame their ownpolicy to give freeships and scholarships to the needyand poor students or adopt a policy in line with thereservation policy of the State to cater to theeducational needs of the weaker and poorer sections ofthe society."57In para 128 of its judgment in Inamdar case, the Supreme Courtheld:"We make it clear that the observations in PaiFoundation in para 68 and other paragraphs mentioningfixation of percentage of quota are to be read andunderstood as possible consensual arrangements whichcan be reached between unaided private professionalinstitutions and the State."s58The Supreme Court, in para 130 of its judgment in Inamdar case,while reiterating the law laid down in Pai Foundation case, disapprovedwith the judgment in Islamic Academy case to the extent it allows theStates to fix quota for seat-sharing between the management and the Stateson the basis of local needs of each State whereas there is no disapprovalor any other understanding of the Pai Foundation case and what is intendedin Pai Foundation case in paragraph 68 has been reiterated in Inamdar case.59Further, it is to be seen as to whether the rights under Article19(1)(g) and Article 30(1) of the Constitution of India are equal. Aright conferred on a citizen of India in terms of Article 19(1)(g) of theConstitution of India, indisputably, is subject to reasonable restrictionswhich may be imposed in public interest under clause (6) thereof. Non-minority educational institutions would have the same rights as thoseconferred on minority educational institutions by Article 30. Non-minority educational institutions do not have the protection of Article30. Therefore, in certain matters, they cannot and do not stand on asimilar footing as minority educational institutions. Even though theprinciple behind Article 30 is to ensure that the minorities are protectedand are given an equal treatment, yet, the special right given underArticle 30 does give them certain advantages in matters of establishingand administering their educational institutions. Further, minorityeducational institutions have preferential right to admit students oftheir own community or language and the same is not available as far asnon-minority educational institutions are concerned.60As pointed out by Mr. Rajeev Dhavan, learned Senior Counselappearing for the petitioner Consortium, the decision rendered in PaiFounation case in para 68 and reiterated in Inamdar case in paras 126 to128, has, in effect, merely permitted unaided private institutions tomaintain merit as the criterion of admission by voluntarily agreeing forseat-sharing with the State or adopting selection based on common entrancetest of the State and they are also permitted to frame their own policy to https://hcservices.ecourts.gov.in/hcservices/ give freeships and scholarships to the needy and poor students or adopt apolicy in line with the reservation policy of the State to cater to theeducational needs of the weaker and poorer sections of the society.61In paragraph 128 in Inamdar case, reiterating para 68 of the PaiFoundation case, it was held that fixation of percentage of quota is to beread and understood as possible consensual arrangements which can bereached between unaided private professional institutions and the State.In my opinion, these rulings of the Supreme Court and the impugned Section2(c)(iii) are to be tested based on the judgment of this Court reported in2006 (3) MLJ 648 which was decided by recording the proceedings of boththe parties.62In the above referred to decision, the consensual arrangementreached by the consortium and the State for 65%-35% of the seats inrespect of non-minority engineering colleges and 50%-50% in respect ofminority engineering colleges ended in a finality and there was no appealand in this decision, it is nowhere spelt out that the consensualarrangement is made only for that year alone except in paragraph 14wherein it has been held as under:"Keeping in tune with the binding precedents asreferred to, and also the order of the Supreme Court inSLP Nos.9652, 9743 and 9744 of 2006, dated 12.06.2006permitting the P.A. Inamdar to follow the practicewhich was adopted for the previous academic year 2005-2006 for the academic session 2006-2007, in the courseof submission made by the learned counsel appearing forthe respective parties, a glimmer of an amicablesettlement between the petitioner and the StateGovernment streaked through, in respect of sharing ofseats between the parties, applicability of rule ofreservation and the mode of admission. These, beingthe major area of controversies arising in these writpetitions, this Court directed the parties to work outthe modality of the settlements through consensus."63Further, in para 16 of the above referred to judgment, it washeld as under:"The affidavits placed by the respective partiesare taken on record. In terms of the settlementarrived at between the parties and as placed on recordin the respective affidavits, the following conditionsare issued on the basis thereof, without the need fortraversing into the legal merits as set out hereunder:"(a)The non-minority unaided engineering colleges shallsurrender 65 per cent of the seats to the StateGovernment; (b) The minority unaided engineeringcolleges shall surrender 50 per cent of the seats tothe State Government; (c) The State Government shall be https://hcservices.ecourts.gov.in/hcservices/ entitled to fill up the seats surrendered as mentionedabove by following the single window system based onranking done by the Anna University and the rule ofreservation of the State Government; (d) In the lightof the order passed by the Supreme Court in SLPNos.9652, 9743 and 9744 of 2005, dated 12.06.2006 inP.A. Inamdar and others vs. State of Maharashtra, theState Government shall adopt the procedure followedduring the previous academic year 2005-2006 andaccordingly, the State Government shall not insist uponthe petitioners to make admission against the seatsretained or held by them by following the single windowsystem;(e) The admission to the seats available tothe unaided Engineering Colleges, both minority andnon-minority shall be made on the basis of marksobtained in the common entrance test (CET) and themarks obtained in the +2 examination; (f) The marksobtained in the Common Entrance Test shall be from anyone fo the following tests conducted by:(i) CETconducted by the Consortium(ii) CET conducted by AnnaUniversity; and (iii)CET conducted by AEEE or any otherCET conducted by the Government or the Governmentagencies of the other States (g) The rule ofreservation shall be followed in admission tomanagement seats retained by the non-minority unaidedengineering college after setting apart 15 per centquota of seats to NRI; and (h) the rule of reservationshall not be applicable to minority unaided engineeringcollege and the procedure for admission of students asfollowed in the previous year shall be followed andinter se merit alone is the criterion, as declared bythe Supreme Court in paragraph No.132 of P.A. Inamdarcase."The above directions, those based on theconsensus reached between the parties, in my opinion,are nevertheless in conformity with the principleenunciated by the Supreme Court and modulated in termsof the principles and observations contained in thejudgments referred to above."From a reading of the above portion, it can be seen that it has not speltout that this consensual arrangement is only for 2006-2007. 64That apart, one of the main attacks on the side of thepetitioners is that the arrangement of 65% - 35% in case of non-minorityengineering colleges and 50% - 50% in case of minority engineeringcolleges is an unilateral re-writing of contract and therefore, theconcept of consensus would not continue as the consensual arrangementcannot be taken as a tacit consent. It is also seen that the present Act https://hcservices.ecourts.gov.in/hcservices/ was made on 03.03.2007 and a Division Bench of this Court on 27.04.2007,has also upheld the validity of Section 4 of the Act and thereafter, theschedule for admission was announced in May 2007 and the process ofadmission has commenced on 13.5.2007 with the issue of application formswhereas the present Act has been challenged by the petitioner only on13.06.2007. Moreover, it can be seen that over the past 20 years, seatsharing had been done in the ratio of 50%-50% for non-minorityinstitutions and 30%-70% for minority institutions under State quota andManagement quota respectively. It was also brought to the notice of thisCourt that as many as 16,000 and more seats have fallen vacant inManagement quota in many colleges and as per the consensual arrangement,the Managements have surrendered higher percentage of seats. This beingthe position, Section 2(c)(iii) of the Act is not, in any way, ininfringement of the constitutional rights guaranteed under Article 19(1)(g) or 30(1) of the Constitution and it is also not in violation of therulings of the Supreme Court in Pai Foundation case and Inamdar case. Inthat view of the matter, I do not find any unconstitutionality in Section2(c)(iii) of the Act.65Coming to the second challenge in the writ petitions which isSection 4(1) of the Act, it is contented on the side of the petitionersthat there cannot be any ambiguity in the provision of the Act. It is tobe borne in mind that there must be a plain meaning and the Court cannotadd or subtract words to a statute or read something into it which is notthere. It cannot rewrite or recast legislation. It is also necessary todetermine that there exists a presumption that the legislature has notused any superfluous words and in that case, the real intention of thelegislation must be gathered from the words used and the intention of thelegislation must be found out from the scheme of the Act. 66One of the strenuous contentions made by the Senior Counsel forthe petitioners is that the Act does not state the method of admission forself-financing colleges which are not members of the consortium andtherefore, the Act is an exercise in futility. An explanatory reply hasbeen given in the defence made by the learned Advocate General to theeffect that the term "appropriate authority" as defined in Section 2(a) ofthe Act is referable only to Section 3 in respect of admission toGovernment seats and that this is made clear by Section 5(4) which reads"the appropriate authority and the consortium of unaided professionaleducational institution shall prepare the rank lists for admission ofstudents to the seats referred to in section 3 and section 4. Thus, thephraseology used in Section 4(1) of the Act "authority authorised by theGovernment" has to be understood with reference to the context in whichthe same is used. It is well-settled principle that while interpreting astatute, the interpretative function of the court is to discover the truelegislative intent. A statute is best interpreted when we know why itwas enacted. It must be read, first as a whole, and then section bysection, clause by clause, phrase by phrase and word by word andtherefore, taking into consideration the contextual connotation and thescheme of the Act, its provisions in their entirety, make it very clear https://hcservices.ecourts.gov.in/hcservices/ that the authority authorised by the Government is an authority distinctand different from the appropriate authority as defined in Section 2(a) ofthe Act and if so read and understood, there is no scope or necessity forreading down the provision of Section 4(1). In order to find out whetherthis provision, in any way, takes away the rights of the petitioners or isin contravention of the rights guaranteed under Article 19(1)(g) or 30 ofthe Constitution, a query has been raised as to who is the appropriateauthority for an engineering college which is not a member of theconsortium. In this context, it should be understood that the authorityauthorised by the Government in respect of Government seats is theUniversity and for the non-member, it is the authority authorised by theGovernment and this submission made by the Advocate General also explainsthat in respect of seats under 2(c)(iii), the consortium is to select thestudents subject to the approval by Government or by any authorityauthorised by the Government on the basis of marks obtained by students inthe relevant subjects in the qualification examination. Therefore, underthe definition for "appropriate authority" under Section 2(a) in thecontext of reading of Section 4(1), it is made clear that in respect oftheir admission of students, they have to select and admit the studentsbased on the marks obtained by them in the qualifying examination andthereafter, it has to be approved by the Government. Thus, when the rightof admission in respect of the unaided minority and non-minorityeducational institutions is within their helm of affairs and the controland management is with them, the definition under Sections 2(a) and 4(1)is in no way ambiguous and does not, in any way, take away the rights ofthe petitioners which are guaranteed under the Constitution. In otherwords, admissions to seats other than the seats mentioned in Section 2(c)(iii) are made by the consortium and approved by the Government or anyauthority authorised by the Government and this power of the State toallot seats to admission made by the consortium in respective Colleges isin conformity with the decision of the Pai Foundation case which isreiterated in Inamdar case and is also not in violation of Article 30 ofthe Constitution. In that view of the matter, this Court holds that thereis no infringement of rights of the minorities or the non-minorities inadmitting students in accordance with the provision of Section 4(1) whichis unambiguous and accordingly, I do not find any vires or illegality todeclare Section 4(1) as unconstitutional.67Coming to the third impugned Section in the Act, viz. Section 5(4) which states that the appropriate authority and the consortium ofunaided professional educational institutions shall prepare the rank listsfor admission of students to the seats referred to in Sections 3 and 4respectively and allot students through centralised counselling, it iscontended on the side of the petitioners that centralised counsellingamounts to single window system of admission, taking away the rights ofthe petitioners guaranteed under Part III of the Constitution,particularly when the ruling of the Pai Foundation and Inamdar objected tothe procedure to follow single window system in respect of self-financingcolleges, and thus, it is in contravention and violation of the basic https://hcservices.ecourts.gov.in/hcservices/ constitutional rights guaranteed to them and also the settled propositionof law laid down by the Supreme Court. 68On the other hand, the learned Advocate General, in categoricalterms, has submitted that there are about 247 self-financing colleges inthe State and taking note of the proportionality of the minoritypopulation of the State and also the overall interest of the studentcommunity at large and also the local needs of the State as directed bythe Supreme Court and the excellence in education and maintenance ofhigher standards, the State has enacted the Act contemplating propermethod of admission procedure by selecting students and allotting the sameto the engineering colleges through centralised counselling.69An important query raised on the side of the petitioners is thatwhen Section 3 of the Act provides that admission to every Government seatin every professional educational institution shall be made by theappropriate authority and when Section 4 provides for admission made bythe consortium, whether the appropriate authority under Section 5(4) candecide the allotment of 35% of the seats in Management quota and thus, thecentralised counselling has taken away the right of the consortium.70Mr. Rajeev Dhavan, learned Senior Counsel appearing for thepetitioner Consortium has attacked Section 5(4) of the Act contending thatthe State cannot insist on private educational institutions which do notreceive any aid from the State to implement the State's policy onreservation for granting admission on lesser percentage of marks or to sayin other words, on any criterion except merit and if the State is allowedto regulate or control admissions in the unaided professional educationalinstitutions so as to compel them to give up a share of the availableseats to the candidates chosen by the State, it would amount tonationalisation of seats which has been specifically disapproved in PaiFoundation case and Inamdar case which make it clear and categorical thatcentralised counselling or single window system runs contrary to theconstitutional rights guaranteed under Article 30 of the Constitutionwhich view is also endorsed in St. Stephen's College case.71The learned Advocate General, in reply to the reliance made byMr. R. Muthukumaraswamy, learned Senior Counsel on the decision of theSupreme Court in St. Stephen's College case, has contended that the saidCollege which has been functioning for more than 100 years, is an Arts andScience College and not an engineering or medical college and moreover,the challenge in the said case was to a Circular issued by the DelhiUniversity and not to a legislation as in the present case and in view ofthese, the said judgment is very much distinguishable and as such, cannotbe applied to the facts of the case on hand. https://hcservices.ecourts.gov.in/hcservices/ 72In the light of this position, this Court has to test whetherSection 5(4) of the Act is in conformity with the constitutional rightsguaranteed and the rulings of the Supreme Court in Pai Foundation case andInamdar case.73In Pai Foundation case, it has been held that minority unaidedinstitutions can legitimately claim unfettered fundamental right to choosethe students to be allowed admission and the procedure therefor subject toits being fair, transparent and non-exploitative. A right to administerneither includes the right to mal-administer nor an absolute right. But,it must be subject to reasonable regulations for the benefit ofinstitutions as the field of education, consistent with national interest.General laws of the land applicable to all persons have been held to beapplicable to the minority institutions also. It is difficult tocomprehend that the framers of the Constitution would have given such anabsolute right to the religious or linguistic minorities, which wouldenable them to establish and administer educational institutions in amanner so as to be in conflict with the other Parts of the Constitution. 74It would be relevant to consider the question as to what is thereasonable restriction enshrined in the Constitution under Article 19(6).of the Constitution. Appropriation of seats cannot be held to be aregulatory measure in the interest of the minority within the meaning ofArticle 30(1). It is argued that merely because the resources of theState in providing professional education are limited, private educationalinstitutions, which intend to provide better professional education,cannot be forced by the State to make admissions available on the basis ofcentralised counselling. The answer to this lies in para 161 of the PaiFoundation case judgment which states that the State Government concernedhas to notify the percentage of the non-minority students to be admitted;observance of inter se merit amongst the applicants belonging to theminority group could be ensured; in the case of aided professionalinstitutions, it can also be stipulated that passing of the commonentrance test held by the State agency is necessary to seek admission; asregards non-minority students who are eligible to seek admission for theremaining seats, admission should normally be on the basis of the commonentrance test held by the State agency followed by counselling wherever itexists. It was further held that all citizens have a right to establishand administer educational institutions under Articles 19(1)(g) and 26,and to minorities specifically under Article 30. While reiterating thedecision in Pai Foundation case, it is held in para 136 in Inamdar case as"Holding of such common entrance test followed by centralised counsellingor, in other words, single-window system regulating admissions does notcause any dent in the right of minority unaided educational institutionsto admit students of their choice. Such choice can be exercised from outof the list of successful candidates prepared at CET without altering theorder of merit inter se of the students so chosen." Further, para 138 of https://hcservices.ecourts.gov.in/hcservices/ the same judgment reads to the following effect: "It needs to bespecifically stated that having regard to the larger interest and welfareof the student community to promote merit, achieve excellence and curbmal-practices, it would be permissible to regulate admissions by providinga centralised and single window procedure. Such a procedure, to a largeextent, can secure grant of merit-based admissions on a transparentbasis..."75Considering the power of the State in bringing a centralisedcounselling which has taken into consideration the overall interest of thestudent community and the need to promote merit with a view to achieveexcellence and curb mal-practices and taking note of the fact that allinstitutions imparting same or similar professional education emphaticallydemanded that the admission procedure should be in line with the rulingsof the Supreme Court in the Pai Foundation case and Inamdar case and whenthe judgment in Inamdar case has reiterated that it would be permissibleto regulate admissions by centralised counselling taking cognizance oflarger public interest and to secure merit based on a transparent basisand since the State has taken note of the ruling of Supreme Court inaccordance with the constitutional guarantees while framing Section 5(4)based on the various local needs and problems prevailing all along in thematter of centralised counselling and admission, the legislative intentbeing clear, I do not find any illegality or unconstitutionality in thisSection too. Thus, in short, since all the three impugned Sections havepassed the test to prove that they are not ultra vires andunconstitutional, no need whatsoever arises to strike down the same and asa consequence, they are upheld.76That apart, with regard to reasonableness, the Supreme Court, inits judgment reported in (2006) 8 SCC 212 in the case of M. Nagaraj andothers vs. Union of India and others, has referred to the judgment in thecase of A.K. Gopalan vs. State of Madras reported in 1950 SCR 88 and yetanother decision in the case of Maneka Gandhi vs. Union of India reportedin (1978) 1 SCC 248, wherein it was held that the procedure contemplatedby Article 21 must answer the test of reasonableness. It was further heldthat the procedure should also be in conformity with the principles ofnatural justice and this example is given to demonstrate an instance ofexpansive interpretation of a fundamental right. The expression "life" inArticle 21 does not connote merely physical or animal existence. Furtherin the case of Minerva Mills Limited vs. Union of India reported in (1980)3 SCC 625, it was held that the Constitution confers rights which areelementary for the proper and effective functioning of democracy. For aConstitutional principle to clarify as a scientific feature, it must beestablished that the said principle is a part of the Constitutional lawbinding on the Legislature. Only thereafter, is the second step to betaken, namely, whether the principle is so found as to bind even theamending power of the Parliament. Therefore, axioms like secularism,democracy, reasonableness, social justice, etc. are overarching principleswhich provide linking factor for principle of fundamental rights. These https://hcservices.ecourts.gov.in/hcservices/ principles are beyond the amending power of Parliament. Hence, thequestion of reasonableness cannot be a factor to be reckoned with in thiscase as per the proposition laid down by the Supreme Court in its variousdecisions, particularly in view of the fact that the petitioner consortiumhas already arrived at a consensus with the State in the last year and asalready stated, this fact has also been recorded by this Court in itsjudgment reported in 2006 (3) MLJ 648. This being the position, thepetitioners are estopped from arguing on the point of reasonableness withregard to the legislative intent of the law-makers in the instant case.77On the question of severability, in determining whether thevalid parts of a statute are separable from the invalid parts thereof, itis the intention of the legislature that is the determining factor and thetest to be applied is whether the legislature would have enacted the validpart, if it had known that the rest of the statue was invalid. In theinstant case, as the challenge is only to three of the Sections of the Actand in view of my findings that these Sections do not, in any manner, takeaway the rights of the petitioners, I am of the considered view that nonecessity arises to harp on the doctrine of severability.78On the aspect of proportionality, it is contended on the side ofthe petitioners that the principle of proportionality has been appliedvigorously to legislative and administrative action in India and whiledealing with the validity of legislation infringing fundamental freedomsenumerated in Article 19(1) of the Constitution of India, the SupremeCourt had occasion to consider whether the restrictions imposed bylegislation were disproportionate to the situation and were not the leastrestrictive of the choices. In the present case, since the restrictionsmade are reasonable and are not in infringement of the rights of thepetitioners, I hold that the principle of proportionality, as contended bythe counsel for the petitioners, does not have legs to stand.79In conclusion, it is to be noted that a statute is construed soas to make it effective and operative. There is always a presumption thatthe legislature does not exceed its jurisdiction and the burden ofestablishing that the legislature has transgressed constitutionalmandates, such as those relating to fundamental rights, is always on theperson who challenges its vires. Unless it becomes clear beyondreasonable doubt that the legislation in question transgresses the limitslaid down by the organic law of the Constitution, it must be allowed tostand as the true expression of the national will as was reported in 1931AC 275 in the case of Shell Co. of Australia v. Federal Commissioner ofTaxation. It is for that person to show that there has been a cleartransgression of Constitutional principles. The only exception is if acitizen is able to establish that the legislation has invaded itsfundamental rights, then the State must justify that the law is saved. Iftwo interpretations are possible, it can only be applied to resolve aconflict when there is such an interpretation. But, when the meaning isclear and unambiguous, this Court has no power to widen its horizon totest the legislative process. https://hcservices.ecourts.gov.in/hcservices/ 80It is always to be remembered that an enactment cannot be struckdown on the ground that Court thinks it unjustified. Parliament and thelegislatures, composed as they are of the representatives of the people,are supposed to know and be aware of the need of the people and what isgood and bad for them. 81I am conscious of my jurisdiction and the interpretativefunction of the Court is to discover the true legislative intent. I haveconsidered the purpose, objects and reasons of the Act and I have alsogiven due attention to the basic rights of the parties and the rulings ofthe Supreme Court in Pai Foundation case and Inamdar case so also to otherjudgments relied on by the counsel on either side. From a reading of theimpugned Sections and considering the whole context of the Act, I amsatisfied that the legislative intent has been in conformity with theconstitutional mandate and the object sought to be achieved by thelegislation. In all the more, taking note of the local needs andspecifically, larger interest and welfare of the student community and topromote merit, achieve excellence and curb mal-practices, the Act has beentested and given effect to. According to the Supreme Court, it is for theCentral Government or for the State Governments, in the absence of aCentral legislation, to come out with a detailed and well-thought-outlegislation on the subject. Such a legislation is long awaited. TheState must act towards this direction. The judicial wing of the State iscalled upon to act when the other two wings, the legislature and theexecutive, do not act. Thus, the Supreme Court's view to bring out alegislation has been felt by the State Government and the same has beennow brought out for the good governance of the educational field in totaland also to achieve national wealth in the field of education. In view ofthese reasons, I do not see any illegality or unconstitutionality inSections 2(c)(iii), 4(1) and 5(4) impugned in the Act and theconsequential G.O. Ms. Nos.115 and 87 dated 25.05.2007 and 16.03.2007respectively; as such, the writ petitions which deserve no considerationare liable to be dismissed and are accordingly dismissed. No costs. 82Coming to impleading petitions in M.P. Nos.3 to 11 of 2007 inW.P. No.20212 of 2007 which are filed by some of the students, it isrelevant to state, in this context, that they were filed at the time whenarguments were almost completed by the learned Senior Counsel for thepetitioners as well as by the learned Advocate General for the respondent-State and when the orders were about to be reserved. That apart, learnedSenior Counsel appearing for the petitioners too have raised theirrespective serious objections in considering the impleading petitions.Needless to say, the State has already taken interest in defending thelegislation, considering the importance attached to it. Lastly, it isworth pointing out that this Court, in an identical case, in its decisionreported in 1985 WLR 306, in the case of the Film Federation of Indiarepresented by its President D. Ramanujam vs. The Union of Indiarepresented by Secretary to Government, Ministry of Education, Culture and https://hcservices.ecourts.gov.in/hcservices/ Social Welfare, New Delhi and 2 others, has dismissed the impleadingpetition and the relevant portion for the consideration of this Court isas under:"11.. . .This is not a matter involving anyindividual rights and it is enough that the Union ofIndia is a respondent when the question of validity ofthe Central enactment is to be adjudicated upon. Itis enough if the Union of India is on record even if adeclaration of invalidity is to be granted. Thepresence of any additional party is whollyunnecessary."83In view of the aforesaid reasons and following the decision ofthis Court referred to above, M.P. Nos.3 to 11 of 2007 in W.P. No.20212 of2007 are dismissed.Since the writ petitions stand dismissed, the connected MiscellaneousPetitions are closed.cadSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1The Secretary to Government of Tamil NaduHigher Education DepartmentSecretariat, Chennai – 600 0092The Director of Technical EducationChennai – 600 0253The Secretary to Government of Tamil NaduLaw DepartmentSecretariat, Fort St. George, Chennai – 600 0094The RegistrarAnna University, Sardar Patel RoadGuindy, Chennai – 600 025 https://hcservices.ecourts.gov.in/hcservices/ 5The Secretary to Government of Tamil NaduHealth & Family Welfare DepartmentSecretariat, Fort St. George, Chennai – 600 0096The Director of Medical EducationalKilpauk, Chennai – 600 0097The Additional Director of Medical Education Selection CommitteeDirectorate of Medical EducationKilpauk, Chennai – 600 010+ 2 ccs to Mr. V. Ayyadurai, Advocate on payment of Charger, SR No.39192 &39191+ 4 ccs to Mr. R. Natarajan, Advocate, on payment of Charger, SR No.39218+ 1 cc to Mr. Sathish Parasaran, Advocate, on payment of Charger, SRNo.39183+ 2 ccs to the Government Pleader, SR Nos. 39394 & 39395 judgment inW.P. Nos.20212 & 20213,20259, 20346, 20266,21026 of 2007SR/2.7.2007