Pai Foundation Vs. State of Karnataka
 INSC 220 (5
Singh (J) Kuldip Singh (J) Agrawal, S.C. (J) Mohan, S. (J) Jeevan Reddy, B.P.
(J) Anand, A.S. (J) Bharucha S.P. (J) Faizan Uddin (J)
1994 AIR 2372 1994 SCC (2) 734 JT 1994 (3) 194 1994 SCALE (2)476
these matters relating to admission to professional courses in medicine,
engineering, pharmacy, nursing, etc. in educational institutions which are
claimed to be Minority Educational Institutions, the petitioners have
questioned the applicability of the scheme framed by this Court in J.P. Unni
Krishnan v. State of A.
P. I as well as the
applicability of the rules and orders made by several State Governments on the
basis of the said decision. By order dated October 7, 1993* passed by the Constitution Bench
three questions were referred for consideration by a larger Bench. In,
pursuance of the said order, this Bench has been constituted. When the matters
were taken up on March
16, 1994, the Court
felt that it was necessary to reframe the first two questions. The hearing of
the matters was, therefore, adjourned to March 18, 1994, on which date the questions
requiring consideration by this Bench have been reframed to highlight the
several aspects of the claims put forward by the petitioners. The claim of
being a "minority" - whether based on religion or language - and the
claim of being a "Minority Educational Institution" put forward by
the petitioners cannot be pronounced upon without first ascertaining what the
said expressions connote and signify.
regard to the importance of the questions involved we consider it appropriate
to issue notice to the Attorney General of India as well as the Advocates
General for the States. It would, therefore, not be feasible to take up the
hearing of these matters before the Court closes for the long vacation. Since
the process of selection of candidates for admission for the next academic
session is to commence soon, it is necessary to pass an interim order governing
admission to the professional courses in Minority Educational Institutions for
the next academic session.
admission in the last academic session 1993-94, an interim order in the
following terms was made by a Bench comprising Hon'ble the Chief Justice and
one of us (Justice B.P. Jeevan Reddy) on May 14, 1993 in Writ Petition Nos. 350
and 355 of 1993+:
We have heard Shri Soli J. Sorabjee, learned Senior Counsel for the petitioners
in these two writ petitions. Issue rule.
There will be an interim order in the following terms:
Fifty per cent of the total intake in the petitioners' educational institutions
shall be permitted to be filled up by candidates selected by the agencies of
the State Government on the basis of a competitive examination/test. The
candidates so selected and admitted shall pay scales of fee as applicable to
this class of students as determined by the State Government from time to time.
(1993) 1 SCC 645 * T.M.A. Pai Foundation v. State of Karnataka, (1993) 4 SCC
286 +_ Ed. : Cause title - Islamic Academy of Education, Mangalore and Others;
S. Venkatesha Education Scy. and Another; and Sri Adichuchanagiri Maha-Sansthana
Math and Others v. State of Karnataka and Others. This was cited in Shahal H. Musaliar
v. State of Kerala, (I 993) 4 SCC 112 737
The remaining fifty per cent of the intake may be regulated by the petitioners
to admit candidates belonging to the particular religious or linguistic
minority. However, the selection shall be made strictly on the basis of merit
among the candidates seeking admission to the institutions. Such merit shall be
determined oh the basis of the academic performance at the qualifying
examination; or on the basis of any objective test that the institution might
itself apply to determine such relative and competing merits; or on the basis
of performance of the results of the selection tests that the State Government
may itself hold for selecting candidates for admission to technical colleges in
the State. It is optional for the petitioners to adopt any one of these three
modes and apply it uniformally. Candidates so selected on the basis of merit
amongst the minorities shall, however, abide by such condition in the matter of
payment of tuition and other fee as may be permitted by the State Government.
is made clear that this order is made on the assumption that the petitioners
are minority institutions. It is open to the respondents to question this
status claimed by the petitioners.
This order shall, however, not estop the petitioners from urging all other
contentions raised in the writ petitions, as, indeed, this interim
interlocutory order is made on the consent of the petitioners and without
prejudice to all the contentions."
Thereafter the matter was considered by the Constitution Bench in its order
dated August 18, 19932. In that order the writ petitions placed before the
Bench were categorised into five categories, namely,
Minority Educational Institutions,
Minority Educational Institutions which are in receipt of State funds by way of
Minority Educational Institutions in respect of which it is not clear from the
averments in the writ petitions whether they are aided or unaided institutions,
petitions challenging the correctness and applicability of Unni Krishnan' filed
by educational institutions which do not claim to be Minority Educational
petitions which do not fall in any of the above categories. It was directed
that the order dated May 14, 1993, would not apply to educational institutions
falling in categories (4) and (5) and the institutions referred to in paragraph
18 of the order dated August 18, 1993. The order dated May 14, 1993, was made
applicable to the institutions falling in categories (1), (2) and (3) with the
modification that following paragraphs were added in continuation of the said
order: (SCC pp. 117-118, para 17)2.
In continuation of para (3) it is made further clear that whether any of the
petitioner-institutions is a MEI or not is a matter for the Government to
verify and determine. We do not more particularly at this stage - make any
pronouncement in that behalf. This order shall be 1 Shahal H. Musaliar v. State
of Kerala, (1993) 4 SCC 112 738 applicable only to those institutions which are
found to be MEIs on verification by the Government and not to those who are not
found to be MEIs on such verification.
The 50% seats to be filled up by candidates selected by the agencies of the
State Government on the basis of a competitive examination/test as well as the
remaining 50% seats to be filled in accordance with clause (ii) of para (2) of
the said order shall be equally distributed between free seats and payment
seats. In other words, out of the 50% seats to be filled up by Government, half
will be payment seats and half will be free seats.
out of the 50% of the seats to be filled up by the Management in accordance
with para 2(ii) of the said order, half shall be payment seats and the other
half free seats.
NRIS, if any admitted to an extent not exceeding 5% of the total seats shall be
out of the payment seats to be filled under para 2(ii).
After completing the admissions each of the colleges, shall submit to the
competent authority, to the University to which it is affiliated and to the
Government concerned statements containing full particulars of the students
admitted under clause (ii) of para (2) of this order. Such statements shall
contain as full a particulars as possible.
authorities to which the statements are submitted shall verify the correctness
of the statements and, if they find any irregularity, they shall call upon the
college concerned to rectify the same. They shall also bring any such violation
to the notice of this Court by way of any interlocutory application. Any such
irregularity if proved may entail serious consequences."
Separate directions were, however, given in respect of institutions referred to
in Writ Petitions Nos. 284 and 482 of 1993. With regard to Writ Petition No.
284 of 1993 it was observed that in the said writ petition the petitioner has
claimed that no capitation fee is charged from any student and the fee charged
is not more than (in some cases less than) the fees charged in the government
colleges and that the admission to these institutions is made on the basis of
an All India Common Entrance Test separately conducted by the petitioner and
admissions are made on the basis of merit as determined in the said test, and
further that in view of the reputation of these institutions, thousands of
students apply for and appear in the entrance test every year. It was also
observed that this fact was not disputed by the learned Advocate General for
the State of Karnataka. Similarly as regards Writ Petition
No. 482 of 1993, it was observed that according to the petitioner in that case
the medical college run by it at Vellore in the State of Tamil Nadu is a
well-reputed institution, admission to which is made on the basis of All India
entrance test conducted by the petitioner and that the admissions are made on
the basis of merit and the fee charged by it is not more than the fees
chargeable in similar governmental institutions and that there has never been
any complaint about the working of this institution and it was observed that
this fact was not disputed by Shri Seetharaman, learned counsel for the State
of Tamil Nadu. In the order dated August 18, 1993, the following directions 739 were
given in respect of the institutions covered by the aforesaid Writ Petitions
Nos. 284 of 1993 and 482 of 19932 :
pp. 117, para 16) "Having regard to the above circumstances, we permit the
petitioners In the above two writ petitions to admit students to their colleges
on the basis of entrance test conducted by them and on the same basis on which
admissions were made by them in the said colleges in the previous academic
year. After completing the admissions, the petitioners shall furnish full
particulars of the students admitted, the categories, if any, whereunder they
were admitted and all other particulars relating to their admission. This
information should be furnished to the competent authority, to the University
to which the said colleges are affiliated and to the Secretary, Education
Department, Government of Karnataka/Tamil Nadu. The said authorities shall
verify whether the admissions have been made by the petitioners in accordance
with the directions given herein. In case of irregularity, any of the said
authorities shall be entitled to call upon the petitioner to rectify the said
irregularity. It shall also be open to the competent authority, University and
the Government of Karnataka/Tamil Nadu to bring any such irregularity to the
notice of this Court by way of an interlocutory application for appropriate
orders in that behalf. It is made clear that any violation of the directions
given herein by the petitioners shall entail serious consequences inasmuch as
the above orders are made based upon their representations and even before a
counter- affidavit has been filed by the respective respondents in view of the
urgency expressed by them."
Dealing with Writ Petition No. 598 of 1993, the Court, after noticing that an
agreement was entered into between the institution and the Government of Kerala
according to which while 85% of the seats were to be filled by the Government
and the remaining 15% of the seats were left for the management to fill up in
its discretion, observed that since the basic principle in Unni Krishnan' as
well as the order dated August 18, 1993 is that merit shall be the guiding
principle in the matter of admission, a plea for discretionary quota could not
be countenanced and it was directed that the said writ petition shall also be
governed by the order dated May 14, 1993, as modified by addition of paragraphs
5, 6 and 7.
order dated October 7, 19933 the Constitution Bench having regard to the fact
that the year 1993 being a year of transition and adjustment and also in view
of the orders of the Government of India permitting admission of foreign
students to the extent of as much as 50% of the seats as well as the time that
had already elapsed, permitted the private professional colleges to admit
non-resident Indians and foreign students up to a maximum extent of 15% of the
intake capacity of that year i.e. 1993, with the direction that the basis of
the said selection would be as indicated in order dated May 14, 19934 on the
basis of merit leaving to the management of the college 3 T.M.A.Pai Foundation
v. State of Karnataka,(1993) 4SCC276 4 Unnikrishnan, J.P. v. State of A.P.,
(1993) 4 SCC 111 740 concerned to adjudge the merit of these candidates having
regard to the relevant factors. It was further made clear that this was a
special provision made only for that year.
aforesaid order dated October 7, 19933, with reference to the Minority
Educational Institutions in the State of Kerala (such as those covered by Writ Petition No. 598 of 1993) it has been
observed: (SCC p. 28 1, para 16) "The system obtaining in Kerala appears
to be altogether different which was unfortunately not brought to our notice on
August 18, 1993.
are only two private engineering colleges in the State, said to be Minority
Educational Institutions. The system obtaining in this State appears to be that
the entire fees collected by these private engineering colleges has to be made
over to the Government while the Government bears the entire expenditure for
running the colleges.
this system, the colleges were allowed to admit students of their own choice to
the extent of 15%."
have heard learned counsel for the parties and we are of the view that except
for the Minority Educational Institutions in Kerala which are governed by the
terms of the agreements with the Government of Kerala, the directions given by
this Court with regard to admissions for the academic session 1993 can continue
and govern admissions for the next academic session commencing in 1994. As
regards the institutions in the State of Kerala which are governed by the terms of agreements with the Government of Kerala,
the admissions to such institutions would be made in accordance with those
agreements. It is, therefore, directed that the admission for the academic
session commencing in 1994 to the professional courses in the institutions which
are claimed to be Minority Educational Institutions shall be made on the
the institutions referred to in Writ Petitions Nos. 284 of 1993 and 482 of 1993
admission shall be made as per the directions given in the order dated August
18, 19932, for the academic session commencing in 1993.
In the institutions referred to in Writ Petition No. 598 of 1993 and similar
Minority Educational Institutions in the State of Kerala which are governed by an agreement
with the Government of Kerala the admissions shall be made in accordance with
the terms of those agreements. In respect of the seats which are left for
management to fill in its discretion, merit shall be the guiding principle.
Since the entire, expenditure of the colleges is borne by the State - the
entire fees collected are also made over to the State - these colleges must be
required to draw the students even with respect to the seats to be filled by
the management from out of the State merit list, if any. In the absence of such
list, they can themselves devise the method for such selection. We make it
clear that regarding the character of these institutions - whether they are
Minority Educational Institutions - we express no opinion.
That is a matter between the institutions and the Government of Kerala. It is
enough to record that Shri Vellapally, learned counsel for the State of Kerala, disputes the minority character of
In rest of the Minority Educational Institutions falling in categories (1), (2)
and (3) indicated in paragraph 5 of the order dated August 18, 19932, admission
shall be made in accordance with the directions contained in the order dated
May 14, 1993 in Writ Petitions Nos. 350 and 355 of 1993 as modified by order
dated August 18, 19932, but the directions would not apply to the institutions
referred to in paragraph 18 of the order dated August 18, 19932. In this
context, we would like to impress upon the managements of the institutions
concerned that while assessing the merit of a candidate for admission the
objective should be to promote the excellence of the institution as a vehicle
of general secular education.
Insofar as non-resident Indians and foreign students are concerned, the
permissible limit would be only 5% of the total intake for a given year as per
the direction contained in paragraph 6 of the order dated May 14, 1993 as
modified by order dated August 18, 19932. The admission against these seats
shall be made on the basis of merit but it would be open for the management of
the institution to adjudge the merit of the candidates having regard to the
matters be listed for hearing on July 20, 1994.
be issued to the Attorney General of India and the Advocates General for the
States on the questions as reframed. Written submissions (in brief) should be
submitted by learned counsel by July 13, 1994.
MAKAR DHWAAJPAL v. NEER YADAV (K.Ramaswamy, J) The Judgment of the Court was
delivered by K.RAMASWAMY, J.- The Contempt Petition Nos. 65, 100 and 126 of
1992 arise out of the judgment of this Court in Keshav Chandra Joshi v. Union
of India' in which this Court had directed to determine inter se seniority of
the direct recruits and promotee Asstt. Conservators, Forests, U.P. rendered on
November 6, 1990. It would appear that at present
there are 215 direct recruits and 100 promotee Asstt. Conservators, Forest working in the forest department.
In K.C. Joshi case' it was concluded that the promotees were appointed on ad
hoc basis as a stop-gap arrangement in substantive posts. Their appointments
were dehors the rules. Until they are appointed by the Governor according to
the rules, they do not become the members of the service in a substantive
capacity. Their continuous length of ad hoc service from the date of their
initial appointment cannot be counted towards seniority. The direct recruits
were appointed in accordance with Rule 5(a) read with Appendix A of U.P. Forest
Service Rules, 1952 for short 'the Rules'. Their seniority shall be counted
from the date of their discharging duties of the post of Asstt.
Forest and the seniority of direct
recruits shall accordingly be fixed. The Governor was directed to make
appointment by promotion to substantive vacancies to the post of Asstt.
Conservators, Forest, if not already made, in accordance with Rule 5(b) read
with Appendix B and Rule 6. We are informed that till date no appointments in
terms thereof have been made. The seniority of the 1992 Supp (1) SCC 272: 1993
SCC (L&S) 694: (1993) 24 ATC 545 : AIR 1991 SC 284 744 promotee Asstt.
Conservators, Forest shall be counted from the
respective dates of appointment to the substantive posts in their quota under
Rule 6 of the rules. The inter se seniority of the direct recruits and promotees
shall be determined in accordance with Rules 5, 6 and 24 as per the judgment in
K. C. Joshi case'. All the employees are entitled to all consequential
benefits. Later when Raj Narayan Singh and others filed Writ Petition (Civil)
No. 641 of 1991, this Court on June 6, 1991 directed to convert the writ
petition as a contempt case for non-implementation of the direction issued in
K. C. Joshi case' which was numbered as Contempt Petition No. 164 of 1971. When
it came up for hearing on August 23, 1991,
this Court observed thus :
are told by the counsel for the State of U.P. that for the purpose of working
out the seniority draft list has been prepared and was in circulation inviting
petitioners therein had not filed any objection, despite giving time, but it
was directed that the State would consider their cases even if they make any
representation. In the light of that stand while dismissing the contempt
petition, this Court directed the Sate Government to dispose of the matter on the
basis of the representation that may be received from the petitioners therein
against the draft seniority list within six months from that date. In these
contempt petitions the promotees as well as some of the subsequent direct
recruits complain against fixation of their inter se seniority by the State
R.K. Garg for the promotees contended that as on August 31, 1982 selection of
the promotees on regular basis to fill up the posts of Asstt. Conservator,
Forest for the years 1973-74 to 1979-80 had taken place by a regularly
constituted selection committee which selected 140 candidates for appointment.
Therefore, they are entitled to the seniority from the respective years. It is
also contended that the promotees are entitled, in terms of the judgment in
K.C. Joshi case' for appointment by promotion to substantive vacancies within
their quota in the respective years and that therefore, their seniority should
be counted from the years in which they started discharging their duties as Asstt.
Conservators, Forest, as they were initially appointed to the substantive
vacancies. Shri Verma appearing for some of the later direct recruits,
contended that the direct recruits were appointed to the substantive vacancies
as held in K.C. Joshi case' and their seniority was fixed in the judgment from
the date on which they started discharging the duties of the post as Asstt.
Forest. Treating them to be temporary as shown in the seniority list prepared
by the State is in utter contempt of the directions in Joshi case1.
the rejoinder the promotees have stated that as on December 31, 1974 a total number of 140 posts of Asstt.
Forest were available and their quota as
per the existing rules was 25 per cent. As on December 1, 1980, 186 posts, namely, 140 and 46 posts created during the
period were available. As per the ratio, the promotees are entitled to 33 1/3,
per cent quota. As on March
11, 1985, 32 more
posts were created and the 745 total posts available were 218. On December 1, 1986, 40 more posts were created.
Therefore, as on March II, 1985, the total posts available were 258. On March 1, 1985, the quota was increased by 50 per
cent. The promotees, therefore, are entitled to 50 per cent of the posts. As in
the year 1990, 72 more posts were created and the total posts are now 330.
Therefore, they are entitled to 50 per cent of the quota in the tentative list.
But that was not done. Thereby, the action of the State is in defiance of the
direction issued by this Court. In the counter- affidavit filed by the State it
is stated that as on December
1, 1980 both permanent
and temporary posts were 131. As on February 12, 1986, 203 posts were existing. The
permanent posts are 102 and temporary posts are 173 and the total would come to
275. As per Rules 5 and 24 only permanent posts should be counted as
substantive posts and temporary posts cannot be counted for fixation of the
seniority. It is further contended that though decision was taken to give 50
per cent quota to the promotees, the statutory rules have not been made.
Therefore, they are entitled to only 33 1/3 per cent quota. Since the
seniority, as per the direction of this Court, was made only to substantive
posts, some of the direct recruits became temporary direct recruits and the
seniority was determined accordingly.
the light of the respective contentions, the question arises whether the
determination of the seniority is in accordance with the directions issued by
light of the background scenario, we cannot strictly take it to be a case of
contempt but in working out the directions issued by this Court, the State
Government committed a mistake in law. We have to consider, therefore, whether
the procedure adopted by the Sate to determine the inter se seniority is in
accordance with the rules and the law laid down in K. C Joshi case'. The
directions issued in K. C Joshi case' have already been extracted and their
need to reiterate is obviated. From the averments it would appear that 100 promotee
Asstt. Conservators, Forest are awaiting appointment to substantive vacancies.
The total number of direct recruits appears to be 215. Prior to December 31,
1974, the quota was 75 per cent to the direct recruits and 25 per cent to the promotees.
Similarly as on January 1, 1975, the ratio was increased to 33 1/3 per cent,
namely, 66 2/3 per cent to the direct recruits and 33 1/3 per cent to the promotees.
Indisputably a decision was taken on March 1, 1975 to increase the quota to 50
per cent but no amendment to the statutory rules to give effect to it was made.
Therefore, the operative rule as on that date appears to be 33 1/3 per cent in
respect of promotees.
the procedure to be adopted by the State in fixing the inter se seniority of
the direct recruits and the promotees in their respective quota is the sole
is no rota prescribed in the rules. Therefore, the State is enjoined to
implement the judgment of this Court in the light of the statutory rules. It is
clear from the counter-affidavit filed by the State that the posts are both
permanent and temporary. If the temporary posts are likely to continue for
long, normally, as per the law laid down by this Court, they be treated, for
the purpose of counting seniority, as permanent posts unless they are likely to
be abolished. It is a policy matter. Therefore, the State has 746 to determine
whether the posts are likely to be made permanent or abolished. In the event of
converting them as permanent under Rule 24, the quota prescribed in Rule 6
would be applied to substantive posts. The seniority shall be determined in
accordance with the quota rule to the posts available in the respective years
in which the vacancies had arisen otherwise existing substantive posts should
be filled up applying Rule 6. It is, therefore, incumbent upon the State
Government to find out how many vacancies were existing in the year 1974-75 and
thereafter every year and to determine as to how the respective posts stood
reserved for the direct recruits and promotees in accordance with the quota. On
so determining, the direct recruits would go en block as seniors to the promotees
and the promotee officers in the order of their inter se seniority be appointed
by the Governor under Rule 5(b) read with Rule 6 and would be placed below the
direct recruits. Similar exercise for each year in which the substantive
vacancies had arisen should be done. The officers, he they direct recruits or promotees
would rank below the juniormost officer in the list of the previous year. After
this exercise is exhausted;
should be made; posts are to be filled up to substantive vacancies. It would be
open to the State Government to fix tentatively the inter se seniority in the
temporary posts according to the ratio between the direct recruits and the promotees
in the same manner of filling the substantive posts as indicated above. As and
when the temporary posts are converted either into permanent posts or the
vacancies arise due to superannuation of the senior officers, they should be
fixed in the respective vacancies and fitment made. After exhausting the
exercise the remaining candidates awaiting appointment would continue to be
temporary until they get due placement or fixation of their seniority. These
directions would meet the exigencies. The State Government is directed to
undertake fresh exercise in the light of the above directions and complete the
same within a period of four months from the date of the receipt of the order.
The contempt petitions are accordingly disposed of.