The 'minority' educational institutions, aided or unaided, are exempted from enforcement of the reservation policy of the State in respect of backward class of citizens as interpreted by the judgments of the Constitution Benches of the Apex Court in Ashoka Kumar Thakur vs. Union of India and Pramati Educational and Cultural Trust vs. Union of India, whilst upholding the validity of Article 15(5) of the Constitution.

A.A. Sayed, J.

1. The challenge in this Petition under Article 226 of the Constitution is to the Circular dated 30-05-2001 issued by the Respondent No. 1 University directing reservation for students belonging to backward classes in educational institutions conducting courses in Arts, Commerce, Science and other professional courses affiliated to the Respondent No. 1 University including such educational institutions established and administered by minorities.

2. The Petitioner No. 1 is a College established by the Bombay St. Xavier's College Association which imparts education to students pursuing degree courses in Arts, Science and Commerce streams, registered under the Societies Registration Act, 1860 and the Bombay Public Trust Act 1960. The Petitioner No.2 is the Association of the Educational Institutions registered under the Societies Registration Act, 1860, which are stated to have either religious or minority status. It represents the Colleges enumerated in the list annexed at Exh. A to the Petition. Respondent No. 1 is a University constituted under the Bombay Universities Act 1974 which was replaced by the Maharashtra Universities Act, 1994. Respondent No. 2 is the Registrar of the Respondent No. 1 University. Respondent No. 3 is the State of Maharashtra.

3. The impugned Circular stipulates reservation for students belonging to backward classes for admission to various courses to the extent of 50% of seats by implementing the reservation policy of the Government of Maharashtra as notified vide Government Resolution dated 11-07-1997. The percentage of reservation prescribed is as under :

1.	S.C.	13%
2.	S.T.	7%
3.	D.T. (A)	3%
4.	N.T. (B)	2.5%
5.	N.T. (C)	3.5%
6.	N.T. (D)	2%
7.	O.B.C	19%

The impugned Circular, makes a reference to the judgment of the Apex Court in the case of Shahal H. Musalia and Anr. Vs. State of Kerala & Ors., JT 1993 (4) S.C. 584 and lays down the following criteria for admission and reservation of seats in minority colleges :

(a) Fifty per cent of the total intake in the minority colleges shall be permitted to be filled up by candidates selected by the agencies of the State Government/University on the basis of centralised admissions scheme.

(b) The remaining fifty per cent of the intake may be regularized by the minority colleges 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 on 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 if such test is held by the State Government/University. It is optional for the minority colleges to adopt any one of these three modes and apply it uniformly.

4. On 15-06-2001 when the Petition came up for admission, the learned Counsel on behalf of the Respondent No. 1 University stated before the Court that the impugned Circular relates only to seats other than minority quota and therefore various instructions contained in the impugned Circular will not apply to the minority quota of 50% as per the decision of the Supreme Court in St. Stephen's College vs. University of Delhi, 1992 (1) SCC 588. On 06 June 2002 in a Notice of Motion No. 230 of 2002 taken out by the Petitioners, this Court passed the following order :

"The Petitioners are permitted to admit minority students in 47 per cent quota of seats strictly on the basis of merits amongst the minority students and 3 per cent seats are reserved for the categories namely (i) Handicapped Students (ii) Children/Grandchildren of Freedom Fighters (iii) Childr