2003 Supreme(SC) 757

2003(6) Supreme 303
Supreme Court of India
(Under Art. 32 of the Constitution of India)
V.N. Khare, CJI., S.N. Variava, K.G. Balakrishnan, Arijit Pasayat and S.B. Sinha, JJ.
Islamic Academy of Education and Anr. —Petitioners
versus
State of Karnataka & Ors. —Respondents
Writ Petition (C) No. 350 of 1993
With
(SLP (C) Nos. 11286/2003, 11391/2003, 11189-11195/2003, W.P. (C) Nos. 355/1993, 174/2003, T.P. (C) No. 286-288/2003, SLP (C) Nos. 3465-3466/2003, 3942-3943/2003, 4002-4003/2003, 9253-9254/2003, 10561/2003, W.P. (C) Nos. 261/2003, 275/2003, 280/2003, 289/2003)
Decided on 14-8-2003
Counsel for the Parties :
For the Appearing Parties : Raju Rama­chandran and R.N. Trivedi, Additional Solicitor Generals, F.S. Nariman, Rakesh Dwivedi, A.K. Ganguli, H.N. Salve, K.K. Venugopal, Dr. Rajiv Dhawan, Mohan Parasaran, P.P. Rao, V.R. Reddy, Dipankar P. Gupta, S.K. Dhola­kia, T.R. Andhayarujina, Kailash Vasdev, R. Mohan, K. Rajendra Chowdhary, M.N. Krishna­mani, Yashank Adhyaru, P.S. Mishra, Sr. Advocates, Dr. (Mrs.) Roxna S. Swamy, A. Lobo, Subhash C. Sharma, Ramesh N. Keswani, Bharat Sangal, Seshachala, Ms. Niranjana Singh, Dayan Krishnan, Nikhil Nayyar, Trideep Pias, Abhishek Chaudhary, Ms. Vimla Sinha, M.V. Seshachala, Madhu Naik, S. Sukumaran, Suresh Unnikrishnan, Ms. Divya Nair, K. Rajeev, Madhu­sudan, R. Naik, S. Ravindra Bhat, Naveen R. Nath, Sanjay Shara­wat, Ms. Hetu Arora, Vijay Narain, C.B.N. Babu, Bimal Roy Jad, Ratan Singh, Advocate General for State of Kerala, K.R. Sasiprab­hu, John Mathew, Anil Thomas, G. Prakash, S. Udaya Kumar Sagar, Ms. Bina Madhavan, Prasanth P., P.H. Parekh, Krishna Srinivasan, E.R. Kumar, Rohit Alex, S. Nanda Kumar, V. Vijayan, M. Yogesh Kanna, Jitendra Shankar, Anuj Srivastav, Rakesh K. Sharma, Ajit Kumar Sinha, S.W.A. Qadri, Ms. Rekha Pandey, D.S. Mehra, Ms. Anil Katiyar, K.C. Kaushik, Ashok Kumar Pandey, Pritish Kapur, Prateek Jalan, Sunil Mathews, A.N. Jaya Ram, Advocate General for State of Karnataka, Sanjay R. Hegde, Satya Mitra, Anil K. Mishra, Ms. Mahalaxmi Pavani, Maninder Singh, Ms. Pratibha M. Singh, Angad Mirdha, Ankur Talwar, Kirtiman Singh, D.S. Mehra, G. Prabhakar, J.S. Attri, Gopal Prasad, T.V. Ratnam, K. Subba Rao, Ms. A. Subhashini, S.R. Bhat, Ms. Manakshi Vij, T.N. Subramanium, Bhava­nishankar V. Gadnis, Shiv Kumar Suri, A. Mariar­putham, Ms. Aruna Mathur, A.K. Srivastava, S.S. Shamshery, Ms. Krishna Sarma, Ms. Asha G. Nair, V.K. Sidharthan, Sakesh Kumar, S.K. Agnihotri, T.C. Sharma, Ms. Neelam Sharma, Ajay Sharma, KH. Nobin Singh, Ms. H. Wahi, U.U. Lalit, S.S. Shinde, Mukesh K. Giri, S.K. Shandilya, Ms. V.D. Khanna, Ranji Thomas, Ms. Bharati Upadhyay, Arun Pedne­kar, V.N. Raghupathy, Anil Shrivastav, Gopal Singh, Navin Pra­kash, Ms. Kirti Mishra, Anis Suhrawardy, Neeraj Jain, Ms. Kavita Wadia, V.G. Pragasam, A.S. Rawat, Additional Advocate General for State of Uttaranchal, J.K. Bhatia, R.S. Suri, Jagjit Singh Chha­bre, Chandra Bhushan Prasad, Shailesh Madiyal, C.S. Vaidyanathan, P.N. Ramalingam, V. Balaji, T. Raja, Rakesh K. Sharma, Prashant Bhushan, N.L. Ganpathi, Bharat Kumar, Bhupender Yadav, Ms. Sheela Goel, Ms. Sumita Hazarika, Ms. Madhu Moolchandani, R. Santhana Krishnan, D. Mahesh Babu, Duval C. Dave, Ms. Aparna Bhat, P. Ramesh Kumar, Ejaz Maqbool, Wajid Ali Kamil, Ujjwal Kr. Jha, Ms. Minakshi Nag, Ms. Sarla Chandra, Sanjay Sen, Rana S. Biswas, Gourav Agarwal, Prasant Kumar, Joseph Pookkatt, T.N. Subrama­nian, M. Qamaruddin, Mrs. M. Qamaruddin, Ambar Qamaruddin, Manish Goswami, Advocates.

Important point
Imparting of education is essentially charitable in nature, there can be no profiteering and capitation fees cannot be charged. However, there can be no fixing of a rigid fee structure by the government and the educational institutions are entitled to fix their own fee structure.

Headnote:(i) Constitution of India—Article 30—Minority educational institution, unaided—Fee structure, fixation of—Each institute must have freedom to fix its own fee structure—Capitation fee cannot be charged—Imparting of education being essentially charitable in nature—There can be no fixing of a rigid fee structure by the government—However, State Governments directed to set up, in each State, a Committee headed by a retired High Court Judge who shall be nominated by Chief Justice of that State—Fee fixed by Committee shall be binding for a period of three years—Education—Educational institutions.

       Per Majority Opinion

       Held : There can be no fixing of a rigid fee structure by the government. Each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. In paragraph 56 of the judgment it has been categorically laid down that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgment imparting of education is essentially charitable in nature. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be diverted for any other use or purpose and cannot be used for personal, gain or for any other business or enterprise. As, at present, there are statutes/regulations which govern the fixation of fees and as this Court has not yet considered the validity of those statutes/regulations, we direct that in order to give effect to the judgment in TMA PAI s case the respective State Governments concerned authority shall set up, in each State, a committee headed by a retired High Court judge who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be a Chartered Accountant of repute. A representative of the Medical Council of India (in short MCI ) or the All India Council for Technical Education (in short AICTE ), depending on the type of institution, shall also be a member. The Secretary of the State Government in charge of Medical Education or Technical Education, as the case may be, shall be a member and Secretary of the ­Committee. The Committee should be free to nominate/co-opt another independent ­person of repute, so that total number of members of the Committee shall not exceed 5. Each educational Institute must place ­before this Committee, well in advance of the ­academic year, its proposed fee structure. Along with the proposed fee structure all ­relevant documents and books of accounts must also be produced before the committee for their scrutiny. The Committee shall then decide whether the fees proposed by that ­institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixed by the com­mittee shall be binding for a period of three years, at the end of which period the institute would be at liberty to apply for ­revision. Once fees are fixed by the Com­mittee, the institute cannot charge either ­directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g. donations the same would amount to charging of capitation fee. The Governments/appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be ­appropriately penalised and also face the prospect of losing its recognition/affiliation. (Para 6)

       Per. S.B. Sinha, J.

       On a bare reading of the relevant paragraphs of the judgment some of which are referred to hereinbefore, it is beyond any doubt that in the matter of determination of the fee structure the unaided institutions exercise a greater autonomy. They, like any other citizens carrying on an occupation, must be held to be entitled to a reasonable surplus for development of education and expansion of the institution. Reasonable surplus doctrine can be given effect to only if the institutions make profits out of their investments. As stated in paragraph 56, economic forces have a role to play. They, thus, indisputably have to plan their investment and expenditure in such a manner that they may generate some amount of profit. What is forbidden is (a) capitation fee and (b) profiteering. (Para 155)

       The fee structure, thus, in relation to each and every college must be determined separately keeping in view several factors including, facilities available, infrastructure made available, the age of the institution, investment made, future plan for expansion and betterment of the educational standard etc. The case of each institution in this behalf is required to be considered by an appropriate Committee. For the said purpose, even the books of accounts maintained by the institution may have to be looked into. Whatever is determined by the Committee by way of a fee structure having regard to relevant factors some of which are enumerated hereinbefore, the management of the institution would not be entitled to charge anything more. While determining the fee structure, safeguard has to be provided for so that professional institutions do not become auction houses for the purpose of selling seats. Having regard to the statement of law laid down in para 56 of the judgment, it would have been better, if sufficient guidelines could have been provided for. Such a task which is a difficult one has to be left to the Committee. While fixing the fee structure the Committee shall also take into consideration, inter alia, the salary or remuneration paid to the members of the faculty and other staff, the investment made by them, the infrastructure provided and plan for future development of the institution as also expansion of the educational institution. Future planning or improvement of facilities may be provided for. An institution may want to invest in an expensive device (for medical colleges) or a powerful computer (for technical college). These factors are also required to be taken care of. The State must evolve a detailed procedure for constitution and smooth functioning of the Committee. While this Court has not laid down any fixed guidelines as regard fee structure, in my opinion, reasonable surplus should ordinarily vary from 6 to 15 , as such surplus would be utilized for expansion of the system and development of education. The institutions shall charge fee only for one year in accordance with the rules and shall not charge the fees for the entire course. (Paras 162 to 165)

       With a view to ensure that an educational institution is kept within its bounds and does not indulge in profiteering or otherwise exploiting its students financially, it will be open to the statutory authorities and in its absence by the State to constitute an appropriate body, till appropriate statutory regulations are made in that behalf. The respective institutions, however, for the aforementioned purpose must file an appropriate application before the Committee and place before it all documents and books of accounts in support of its case. (Paras 166 and 167)

       (ii) Constitution of India—Article 30—Educational Institutions—Fees collection—Educational institution can only charge prescribed fees for one semester/year—Students to give a bond/bank guarantee that balance fees for whole course would be received by the institute even if the student left in midstream.

       Per Majority Opinion

       Held : In our view an educational institution can only charge prescribed fees for one semester/year. If an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalised bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance. (Para 7)

       Per S.B. Sinha, J.

       Fees once fixed should not ordinarily be changed for a period of three years, unless there exists extra-ordinary reason. The proposed fees, before indication in the prospectus issued for admission, have to be approved by the concerned authority/ Body set up. For this purpose the application should not be filed later than April of the preceding year of the relevant education session. The authority/ Body shall take the decision as regards fees chargeable later by October of the year concerned, so that it can form part of the prospectus. No institution should charge any fee beyond the amount fixed and the fee charged shall be deposited in a nationalized bank. In other words, no employee or any other person employed by the Management shall be entitled to take fees in cash from the students concerned directly. The statutory authority may consider the desirability of framing an appropriate regulation inter alia to the effect that in the event it is found that the management of a private unaided professional institution has accepted any amount other than the fees prescribed by the Committee, it may have to pay a penalty ten to fifteen times of the amount so collected and in a suitable case it may also lose its recognition or affiliation. However, there cannot be any doubt that before any such order is passed the institutions concerned shall be entitled to an opportunity of being heard. For the aforementioned purpose, the State shall set up a machinery to detect cases where amounts in excess of permitted limit are collected as it is the general experience that students pay a huge amount. However, if for some reason, fees have already been collected for a longer period the amount so collected shall be kept in a fixed deposit in a nationalized bank against which no loan or advance may be granted so that the interest accrued thereupon may enure to the benefit of the students concerned. Ordinarily, however, the management should insist for a bond from the concerned students. (Paras 168 to 170)

       (iii) Constitution of India—Article 30—Educational Institu­tions, minority and non minority—Whether minority and non minor­ity educational institutions stand on same footing and have same rights under T.M.A. Pai judgment, 2002(8) Supreme 62—(No).

       Per Majority Opinion

       Held : Undoubtedly at first blush it does appear that these paragraphs equate both types of educational institutions. However on a careful reading of these paragraphs it is evident that the essence of what has been laid down is that the minority educational institutions have a guarantee or assurance to establish and administer educational institutions of their choice. These paragraphs merely provide that laws, rules and regulations cannot be such that they favour majority institutions over minority institutions. We do not read these paragraphs to mean that non minority educational institutions would have the same rights as those conferred on minority educational institutions by Article 30 of the Constitution of India. Non minority educational institutions do not have the protection of Article 30. Thus, in certain matters they cannot and do not stand on similar footing as minority educational institutions. Even though the principle behind Article 30 is to ensure that the minorities are protected and are given an equal treatment yet the special right given under Article 30 does give them certain advantages. Just to take a few examples, the Government may decide to nationalise education. In that case it may be enacted that private educational institutions will not be permitted. Non minority educational institutions may become bound by such an enactment. However, the right given under Article 30 to minorities cannot be done away with and the minorities will still have a fundamental right to establish and administer educational institutions of their choice. Similarly even though the government may have a right to take over management of a non minority educational institution the management of a minority educational institution cannot be taken over because of the protection given under Article 30. Of course we must not be understood to mean that even in national interest a minority institute cannot be closed down. Further minority educational institutions have preferential right to admit students of their own community/language. No such rights exist so far as non minority educational institutions are concerned. (Para 8)

       Per S.B. Sinha, J.

       A citizen of India with a view to establish an unaided professional institution exercises his right of occupation. To the said extent admittedly the right of the minority and non-minority is equal. Article 30, however, seeks further to protect the minorities so that they may admit students in the institution established by them. This privilege is not extended to the non-minority community. They also have a right to establish an institution and admit students of their own choice in terms of Para 68 of the judgment in T.M.A. Pai but they do not have any right of admitting students belonging to a particular locality or speaking a particular language as such institutions are not meant to serve the said purpose. But the same for all intent and purport having regard to the question involved in the matter may not be of much consequence as would appear from the discussions made hereinafter. (Para 102)

       Although the width and scope of Article 19(1) (g) and Article 30 are different, but they seek to fulfill the same purpose. A minority institution has no additional rights but it enjoys a constitutional protection to admit students belonging to the minority communities whether based on religion or language. All regulations in this behalf must satisfy the requirement of Article 30. The doctrine of equality shall further apply once the institutions have been established. (Para 104)

       The right of the minority institution to admit their own students, in other words, is only by way of protection of the minority ­interest so that they may get the benefit of the equality clause. Such a protection should not be confused to be a right. This is evident not only from paras 138 and 139 of the judgment but also from para 371, (opinion of Ruma Pal, J.). The statement of law contained in paras 138 and 139 is absolutely clear and unambiguous and no exception can be taken thereto. The doubt, if any, that the minorities have a higher right in terms of Article 30(1) of the Constitution of India may be dispelled in clearest terms inasmuch as the right of the minorities and non-minorities is equal. Only certain additional protection has been conferred under Article 30(1) of the Constitution of India to bring the minorities on the same platform as that of non-minorities as regards the right to establish and administer an educational institution for the purpose of imparting education to the members of their own community whether based on religion or language. (Paras 112 and 113)

       (iv) Constitution of India—Article 30—Educational institutions—Private unaided professional colleges—Entitlement to fill in their seats—Clarification of doubts/anomalies, if any, in TMA Pai judgment, 2002(8) Supreme 62.

       Per Majority Opinion

       Held : Undoubtedly the majority judgment makes a distinction between private unaided professional colleges and other educational institutions i.e. schools and undergraduate colleges. The subheading "Private unaided professional colleges" includes both minority as well as non minority professional colleges. This is also clear from a reading of paragraph 68. It appears to us that this distinction has been made (between private unaided professional colleges and other educational institutions) as the Judgment recognises that it is in national interest to have good and efficient professionals. The Judgment provides that national interest would prevail, even over minority rights. It is for this reason that in professional colleges, both minority and non-minority, merit has been made the criteria for admission. However a proper reading, of paragraph 68, indicates that a further distinction has been made between minority and non minority professional colleges. It is provided that in cases of non minority professional colleges "a certain percentage of seats" can be reserved for admission by the management. The rest have to be filled up on bases of counseling by State agencies. The prescription of percentage has to be done by the Government according to local needs. Keeping this in mind provisions have to be made for the poorer and backward sections of the society. It must be remembered that, so far as medical colleges are concerned, an essentiality certificate has to be obtained before the college can be set up. It cannot be denied that whilst issuing the essentiality certificate the respective State Governments take into consideration the local needs. These aspects have been highlighted in a recent decision of this Court in State of Maharashtra vs. Medical Association and others [2002 (1) SCC 589]. Whilst granting the essentiality certificate the State Government undertakes to take over the obligations of the private educational institution in the event of that institution becoming incapable of setting of the institution or imparting education therein. A reading of paragraphs 59 and 68 shows that in non minority professional colleges admission of students, other than the percentage given to the management, can only be on the basis of merit as per the common entrance tests ­conducted by government agencies. The manner in which the percentage given to the management can be filled in is set out hereinafter. Paragraph 68 provides that a different percentage can be prescribed for unaided minority institutions. That the same yardstick cannot be applied to both minority and non minority professional colleges is also clear from the fact that paragraph 68 also falls under main heading "In case of private institutions, can there be government regulations and, if so, to what extent?’’ (Paras 12 and 13)

       All these cases have recognised and upheld the rights of minorities under Article 30. These cases have held that in the guise of regulations, rights under Article 30 cannot be abrogated. It has been held, even in respect of aided minority institutions that they must have full autonomy in administration of that institution. It has been held that the right to administer includes the right to admit students of their own community/language. Thus an unaided minority professional college cannot be in a worse position than an aided minority professional college. It is for this reason that paragraph 68 provides that a different percentage can be fixed for unaided minority professional colleges. The expression "different percentage for minority professional institutions" carries different meaning than the expression "certain percentage for unaided professional colleges." In fixing percentage for unaided minority professional colleges the State must keep in mind, apart from local needs, the interest/need of that community in the State. The need of that community, in the State, would be paramount vis-a-vis the local needs. It must be clarified that a minority professional college can admit, in their management quota, a student of their own community/language in preference to a student of another community even though that other student is more meritorious. However, whilst selecting/admitting students of their community/language the inter-se merit of those students cannot be ignored. In other words whilst selecting/admitting students of their own community/language they cannot ignore the ­inter-se merit amongst students of their community/language. Admission, even of members of their community/language, must strictly be on the basis of merit except that in case of their own students it has to be merit inter-se those students only. Further if the seats cannot be filled up from members of their community/language, then the other students can be admitted only on the basis of merit based on a common entrance test conducted by government agencies. (Paras 13 and 14)

       The management could select students, of their quota, either on the basis of the common entrance tests conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State e.g. medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. If any professional college chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State. After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice board of all colleges which have chosen to admit as per this test. A copy of the merit list will also be forthwith sent to the concerned authority and the Committee. Selection of students must then be strictly on basis of merit as per that merit list. Of course, as indicated earlier, minority colleges will be entitled to fill up their quota with their own students on basis of inter-se merit amongst those students. The list of students admitted, along with the rank number obtained by the student, the fees collected and all such particulars and details as may be required by the concerned authority or the Committee must be submitted to them forthwith. The question paper and the answer papers must be preserved for such period as the concerned authority or Committee may indicate. If it is found that any student has been admitted de-hors merit penalty can be imposed on that institute and in appropriate cases recognition/affiliation may also be withdrawn. At this juncture it is brought to our notice that several institutions, have since long, had their own admission procedure and that even though they have been admitting only students of their own community no finger has ever been raised against them and no complaints have been made regarding fairness or transparency of the admission procedure adopted by them. These institutions submit that they have special features and that they stand on a different footing from other minority non-aided professional institutions. It is submitted that their cases are not based only on the right flowing from Article 30(1) but in addition they have some special features which requires that they be permitted to admit in the manner they have been doing for all these years. A reference is made to few such institutions i.e. Christian Medical College, Vellore, St. Johns Hospital, Islamic Academy of Education etc. The claim of these institutions was disputed. However we do not think it necessary to go into those questions. We leave it open to institutions which have been established and who have had their own admission procedure for, at least, the last 25 years to apply to the Committee set out hereinafter. (Paras 15 and 16)

       We now direct that the respective State Government do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge to be nominated by the Chief Justice of that State. The other member, to be nominated by the Judge, would be a doctor or an engineer of eminence (depending on whether the institution is medical or engineering/technical). The Secretary of the State in charge of Medical or Technical Education, as the case may be, shall also be a member and act as Secretary of the Committee. The Committee will be free to nominate/co-opt an independent person of repute in the field of education as well as one of the Vice Chancellors of University in that State so that the total number of persons on the Committee do not exceed five. The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper/s, to know the names of the paper setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have power to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government. Before exempting any institute or varying in percentage of quota fixed by the State, the State Government must be heard before the Committee. It is clarified that different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college/s shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the management to approach the Committee. It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove. (Para 18)

       So far as the year 2003-2004 is concerned, time is running out as the outer time limit for admission is fast approaching or has gone. To meet the urgent situation without going into the issues involved in the various petitions/applications, we direct that the seats be filled up by the institution and the State Governments in the ratio 50:50. However, if by any interim order, this Court has permitted any institution to fill up a higher percentage of seats and the seats have been filled up accordingly, the same shall not be disturbed. It is made clear that due to the time constraint this arrangement has been made, without deciding the contentious issue involved in various pending cases. (Para 20)

       Per S.B. Sinha, J.

       If it is to be held that in a case of minority institution all the seats could be filled in by members of their community/language, if available, the same would run counter to para 68 of the judgment which says about certain percentage which can never be 100 . The expression "different percentages" occurring in para 68 would clearly mean there cannot be any fixed percentage. In a given case it may be more than 90 but in another it may be less than 50 . Different percentages must be worked out in terms of the need of the institution. It has nothing to do with minority or non-minority; aided or unaided. The dictum of the court in St. Stephen vis-a-vis T.M.A. Pai Foundation must be read in that context. It cannot be said as a matter of legal proposition that in each and every case the minority educational institutions would be entitled to fill up more than 50 of the seats from amongst the students of their choice and that too irrespective of merit. The fact that even students belonging to minority community take admission in colleges run or aided by the State or other private unaided colleges cannot be lost sight of. On taking into consideration all the relevant criteria only the percentage can be worked out. It would be, in my considered opinion, wrong to compare the unaided institutions always with aided institutions. St. Stephen should be understood in proper perspective. What is explained in T.M.A Pai (supra) is that there cannot be any fixed percentage. Each case will have to be considered on its own merit. Need of the institution should be the prime concern. Percentage will have to be worked out having regard to the need only. For the purpose of achieving excellence in a professional institution, merit indisputably should be a relevant criterion. Merit, as has been noticed in the judgment, may be determined in various ways (Para 59). There cannot be, however, any fool-proof method whereby and whereunder the merit of a student for all times to come may be judged. Only, however, because a student may fare differently in a different situation and at different point of time by itself cannot be a ground to adopt different standards for judging his merit at different points of time. Merit for any purpose and in particular for the purpose of admission in a professional college should be judged as far as possible on the basis of same or similar examination. In other words, inter se merit amongst the students similarly situated should be judged applying the same norm or standard. Different types of examinations, different sets of questions, different ways of evaluating the answer books may yield different results in the case of the same student. Selection of students, however, by the minority institutions even for the members of their community cannot be bereft of merit. Only in a given situation less meritorious candidates from the minority community can be admitted vis-a-vis the general category; but therefor the modality has to be worked out. For the said purpose de facto equality doctrine may be applied instead of de jure equality as every kind of discrimination may not be violative of the equality clause. (Paras 182 to 185)

       Furthermore, answers to Questions 5 (a) and (c), would go to show that the minority unaided institution have a right to evolve their own machinery for admitting the students on the basis of merit subject of course to passing the fairness and transparency test. Even for non-minority professional institutions such a right has been recognized. There is no mechanism which would ensure fairness or transparency of the examination held by each and every unaided professional institution. A suggestion has been mooted out that Associations/Federations of private institutions have been formed. It may, thus, be possible to protect the right of the minority if such Associations/Federations take a decision in this behalf in consultation with the statutory authorities or the concerned State as regards holding of a common entrance test for the said purpose. (Para 188)

       In the aforementioned premise, I am of the opinion that the right of the minorities should be protected and fairness and transparency in holding such examinations would also be maintained if the minority institutions come to a consensus through their association or federation to hold a common test under the supervision of a monitoring committee which may be subject to verification at a later stage by taking recourse to : (1) report back system; (2) all answer papers may be preserved; and (3) in case of dispute some independent agency may determine the same. (Para 190)

       The minority institutions imparting professional courses may have a legal or constitutional right to hold their own examination; but a serious consideration is required to be bestowed as to whether for the purpose of judging merit they should opt for the Common Entrance Test held by the State. Such a course, if resorted to, would not only be helpful for determining the inter se merit between the students/candidates but also would be sufficient to be indicative of the fact how and to what extent the students belonging to minorities lag behind the majority so that special efforts can be made to bring their standard up to the national level. (Para 192)

       (v) Precedents—Ratio decidendi of a judgment—Meaning—Ratio of the judgment is what is set out in the judgment itself and not in isolation—In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into—By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment.

       Per Majority Opinion

       Held : The ratio decidendi of a Judgment has to be found out only on reading the entire Judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In cases of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio, decidendi of the judgment. We, therefore, while giving our clarifications, are deposed to look into other parts of the Judgment other than those portions which may be relied upon. (Para 2)

       Per S.B. Sinha, J.

       Held : A judgment, it is trite, is not to be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. (Para 145)

       It will not, therefore, be correct to contend, as has been contended by Mr. Nariman, that answers to the questions would be the ratio to a judgment. The answers to the questions are merely conclusions. They have to be interpreted, in a case of doubt or dispute with the reasons assigned in support thereof in the body of the judgment, wherefor, it would be essential to read the other paragraphs of the judgment also. It is also permissible for this purpose (albeit only in certain cases and if there exist strong and cogent reasons) to look to the pleadings of the parties. (Para 151)