Both minority and non-minority, have unfettered right to select and admit students subject to triple test.

A.P. Shah, C.J.

These appeals are directed against the common judgment and order passed by the learned single Judge in a batch of writ petitions. The challenge in these petitions is to the constitutional validity of some of the provisions of the Tamil Nadu Admission in Professional Educational Institutions Act, 2006 (Act No.3 of 2007) (for short ‘the Act’), and the consequential Government Order Nos. 115 and 87 dated 25.05.2007 and 16.03.2007 respectively issued in pursuance of the Act. The writ petitioners are the unaided minority and non-minority professional colleges and the Consortium of Self Financing Professional, Arts & Science Colleges. The main ground of attack in the writ petitions is that the provisions of the Act are violative of the petitioners’ fundamental rights guaranteed under Articles 19(1)(g) and 30 of the Constitution of India.

.2. The factual matrix of the matter may be noticed first.

.From the year 1993-94 till the year 2002-03, admissions to self-financing Medical and Engineering Colleges were made on the basis of the scheme framed by the Supreme Court in the judgment reported in Unnikrishnan vs. State of Andhra Pradesh, 1993 (4) SCC 111. Subsequently, in T.M.A.Pai Foundation v. State of Karnataka, 2002 (8) SCC 481, a 11 Judge Bench ruled that the decision in Unnikrishnan’s case insofar as it framed the scheme relating to the admission and fixation of fee was unconstitutional. The scheme framed in the said decision and the consequential directions given by the various authorities were overruled. The Supreme Court in the said case further ruled that the minorities, as well as the non-minorities have a right to establish and administer educational institutions which are referable to Articles 30, 19 and 26 of the Constitution of India respectively, and the said right to establish and administer includes the right to admit students. By the said judgment, the Supreme Court recognized the autonomy of the unaided private institutions in the matter of governing admissions and held such institutions cannot be deprived of their right to select students, subject to adhering to the merit based selection.

.3. After the judgment in T.M.A.Pai case was delivered on 30.01.2002, different statutes and regulations were enacted by different State Governments, Union of India, and some of the State Governments and educational institutions understood the majority judgment in T.M.A.Pai case in different perspective leading to litigations in several courts and passing of various orders by various courts. When the interim orders were assailed before the Supreme Court, the Supreme Court referred such of those matters to the Constitution Bench, so as to clarify the doubts and anomalies, if any arising out of the judgment in T.M.A.Pai case. The said reference was decided by the Constitution Bench in Islamic Academy of Education v. State of Karnataka, 2003 (6) SCC 697. The Constitution Bench sought to clarify the judgment in T.M.A.Pai case under four heads/questions. The private unaided professional institutions contended before the Supreme Court that they were entitled to fill up all the seats by themselves, evolving their own method of admission, while the State Governments contended that the judgment in T.M.A.Pai case enabled them to fill up a percentage of the seats in the private institutions and that the admission of students under the management quota should be based on merit through a Common Entrance Test conducted by the State Government/Agencies. The aforesaid issues which were covered by questions nos. 3 and 4 were answered by the Bench in the above mentioned case holding that the Government was entitled to fill up a certain percentage of seats in the private un-aided professional colleges which would vary from State to State depending on the exigencies, and that different percentages can be fixed for minority institutions and that the managements are entitled to fill up only the remaining seats. The Suprem