Chandrakantaraj URS, J.
1. In all the above petitioners, the petitioners are aggrieved by the Government Order bearing No. ED/168/TGL/80 Bangalore dated 5th Sept., 1981. They have alleged that the said order is without legal competence, without jurisdiction and violative of the rights of the petitioners guaranteed under Arts. 19(1)(c), 19(1)(e) of the Constitution as well as Art. 14 and the right conferred by Art. 300-A of the Constitution. Several Counsel appearing for the different petitioners have addressed arguments while the learned Advocate-General has addressed arguments on behalf of the respondent- State. There are, in all 25 petitions. The petitioners are mostly societies registered under the Karnataka Societies Registration Act, 1960, each represented by its President or in some cases by the members of the Governing Body. Two of the petitioners are Public Trusts and petitions are filed by the trusts as well as by the trustees.
2. In the course of this order, a detailed reference will be made to the pleadings in some petitions which will bring out the general contentions under which the impugned order is questioned by the petitioners. In the very nature of things, it is unnecessary to set out in detail the pleadings of each of the petitioners who represent the Engineering Colleges run by the private management, the Societies or the Trustees of the Trusts. It is useful to notice that at least two of the Colleges were started before 1950 i.e., before the advent of the Constitution and were originally affiliated to the then Mysore University.
3. It is equally useful to notice some facts which are not in dispute. There are in all, in the State of Karnataka, 39 Technological Institutions affiliated to the Universities in the State. One of such institutions is a Government run Institute of Technology impairing education in a degree course knows as the Bachelor of Textiles, affiliated to the University of Bangalore. The remaining 38 institutions are institutions which offer education in Bachelor of Engineering Degree Course in its different branches such as Civil-Engineering, Mechanical Engineering, Electrical Engineering, Electronics Engineering, Architecture, Automobile Engineering and Industrial Engineering etc., in accordance with the provisions made therefor by the Statutes. Ordinances, Rules and Regulations of the various Universities in the State. It is thus that some of the petitioners may offer all the courses while some other petitioners after only some of the courses. It is equally important at this stage itself to point out that two of the petitioners claim to be minority institutions. They are petitioners, in writ petition 19818 of 1981 (Ghousia College of Engineering, Ramanagaram) and Prabandhak Committee, Sri Nanak Jhira Saheb, Bidar, in writ petition No. 19524 of 1981. They have additional claim that the impugned order is violative of their rights guaranteed under Art. 30(1) of the Constitution.
4. The State has chosen to file a common statement of objections in writ petition No. 19513 of 1981 and connected matters. The averments in the statement of objections will be referred to later at the appropriate will be referred to later at the appropriate stage in the course of this order.
5. Out of the 38 Engineering Colleges in the State of Karnataka one is run by the Bangalore University and is known as 'the Visveswarayya College of Engineering while the State Government runs two institutions, namely, the B.D.T. College of Engineering, Davanagere and the Karnataka Regional College of Engineering, Soorathkal. The last mentioned one is owned and run by the State Government jointly with the Central Government. Of the remaining colleges, eight institutions receive from the Government an aid under the Grant-in-Aid Code of the Mysore Technical Education Department which is a mere administrative Code not having the force of law. One such recipient of the Grant-in-Aid is B. M. Sreenivasaiah College of Engineering which runs in effect two Colleges, namely, morning and evening colleges under the same name and style. However, it has been said in the petition by that College or its trustees that aid is given by the Government in respect of the morning College only. But, the evening College run by it and three of the courses offered by it are not receiving any aid from the Government. This fact is mentioned only to point out that the impugned order which will be set out hereinafter affects as alleged both the aided institutions as well as the unaided institutions notwithstanding the degree or extent of aid given to the Colleges on the basis of the Courses or on the basis of Colleges. It is claimed that some of the Colleges which are aided may not be receiving the grant in respect of certain courses offered by them. All the Colleges are affiliated to one or the other of the Universities in Karnataka within the jurisdiction of which the Colleges function. Thus, the Colleges are all covered by affiliation by the Mysore University, Karnataka University Dharwar, Bangalore University, Mangalore University and Gulbarga University.
6. It would be useful at this stage itself also to state that all the five Universities are deemed to have been incorporated under the Karnataka State Universities Act, 1976 (hereinafter referred to as 'the Act'), though, in fact, the Mysore University, the Karnataka University and the Bangalore University had earlier come into existence by separate enactments which stood repealed by the Act. But, by virtue of S. 72 of the Act. the Statutes, Ordinances, Regulations and Rules made by the Universities prior to the coming into force of the Act, not being repugnant, continue to be in force till such time as the new Universities and the authorities thereunder make the necessary Statutes, Ordinances, Regulations and Rules. In the result, the B. E. Degree Course including the Post-graduate Courses in that branch of learning or its specialised branches are regulated by the Statutes, Ordinances, Regulations and Rules made by one or the other authority of the different Universities in the State. It will be convenient to state that such Statutes, Ordinances, Regulations and Rule governing the course made by the University of Mysore are adopted by the Mangalore University, while the Regulations made prior to the commencement of the Act or newly made thereafter by it are in force in the Bangalore University. Similarly, by the Karnataka University Act of 1949 which brought into existence the Karnataka University also has made the Regulations under the earlier Act which are deemed to have been continued and cover the courses and those Regulations are adopted by the Gulbarga University. More will be said about the provisions of the Act and the relevant Statutes. Ordinances, Regulations and the Rules of the Universities concerning the University in question, in the light of the contentions advanced for the petitioners and the State. The impugned order is as follows:
'PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA.
Subject : - Department of Technical Education - Admission of students to Engineering Colleges in the State for the year 1981-82 coupled with a phased programme for the ultimate abolition of capitation fee in Private Engineering Colleges.
Under Rule 4 of the Karnataka Engineering Colleges and Technological Institute (Selection of Candidates for Admission) Rules issued as annexure to Government Order No. ED 70 TEC 79 dated 18th July, 1979, particulars of seats available in different Government and aided Engineering Colleges, in which the extent of seats in merit pool and management pool and particulars of courses offered in the different colleges shall be as specified from time to time. Similarly intake and the particulars of courses offered in the different unaided private Engineering Colleges shall also have to be specified.
The question of abolition of capitation fee levied by the aided and unaided Private Engineering Colleges in the State, has been under consideration of Government for some time past.
ORDER NO. ED 168 TGL 80 BANGALORE Dt. 5th SEPT. 1981.
In pursuance of Rule 4 of the Karnataka Engineering Colleges and Technological Institutes (Selection of Candidates for Admission) Rules, 1979, and in supersession of previous orders fixing the intake in the Government, Aided and Unaided Private Engineering Colleges, Government are pleased to specify the particulars of seats available and the particulars of courses in the different Engineering Colleges for the academic year 1981-82, as indicated in Annexure to this Government Order.
After careful examination, Government have decided that the capitation fee should be abolished in accordance with a phased programme but in any case within a period of five years at the latest. Accordingly, Government direct that the distribution of seats as between the merit pool and the management pool shall be regulated as follows in the Aided and Unaided Engineering Colleges:
Year Merit Management Capitation fee.Pool. Pool.1 2 3 4A. Aided Colleges:1981-82 80% 10% 10% at Rs. 30,000/- per seat,1982-83 90% 10% Nil.B. Unaided Colleges:1981-82 20% 10% 30% at Rs. 5,000/- for students of Karnataka who satisfy the eligibilityand domicile conditions stipulated in Rule 3 Karnataka Engineering Collegesand Technological Institute (Selection of Candidates for Administration) Rules.40% at Rs. 30,000/- per seat for others.1982-83 40% 10% 20% at Rs. 5,000/- for students of Karnataka who satisfy the eligibility and domicile conditions stipulated in Rule 3 of Karnataka Engineering Colleges and Technological Institute (Selection of candidates for admission) Rules.30% at Rs. 30,000/- per seat for others.1983-84 60% 10% 10% at Rs. 5,000/- for students of Karnataka who satisfy the eligibility and domicile conditions stipulated in Rule 3 of Karnataka Engineering Colleges and Technological Institute(Selection of candidates for admission)Rules.20% at Rs. 30,000/- per-sent for others.1984-85 80% 10% 5% at Rs. 5,000/- for students of Karnataka who satisfy the eligibility and domicile conditions stipulated in Rule 3 of Karnataka Engineering Colleges and Technological Institute(Section of candidates for admission)Rules.5% at Rs. 30,000/- per seat for others.1985-86 90% 10% Nil The distribution of seats as above and the intake sanctioned are subject to following conditions.-
(1) No capitation fee whatsoever shall be charged for the seats in merit pool.
(2) The seats in the merit pool shall be filled up by the Selection Committee appointed by Governments on the basis of merit subject to reservations as per rules issued with Government Order No. ED 70 TEC dated 18th July, 1979.
(3) The managements of both the Aided and Unaided Colleges are permitted to fill up 10 per cent of seats at their discretion. The order seats in the management pool shall also be filled up by the Selection Committee appointed by Government on the basis of capitation fee-cum-merit.
(4) The moneys collected towards the capitation fee shall be credited into a Special Account in a Scheduled Bank in the name of the Committee to be constituted by Government. The Commissioner for Public Instruction and the Director of Technical Education who may be the members of the said Committee shall operate on the Bank Account jointly and release funds to each of the Private Engineering Colleges for development expenditure to be incurred by it as per the decision of the Committee. Before the Committee is appointed, the Joint Director of Technical Education, Bangalore, will receive the Demand Drafts in respect of capitation fee of Rupees 30,000/- and Rs. 5,000/- and will credit it into a Special Account to be opened in a Scheduled Bank.
(5) From the year 1982-83 onwards, 50% of the seats in the merit pool in all the Engineering Colleges in the jurisdiction of each of the Universities in Karnataka State, shall be earmarked for students who have passed in the qualifying examinations from the institutions in the jurisdiction of such Universities.
(6) All the aided and unaided Private Engineering Colleges shall restrict the admission to the sanctioned intake and under no circumstances intake shall be exceeded.
(7) No special intake shall be sanctioned for foreign students as such.
(8) No new courses, although recommended by the Universities, shall be sanctioned in the existing Engineering Colleges.
(9) In addition to the intake sanctioned for each Engineering College such number of seats not exceeding 5 % thereof may be utilised for admitting repeaters satisfying requirements specified in R. 3 of the Karnataka Engineering Colleges and Technological Institute (Selection of candidates for admission) Rules, with the prior approval of the Director of Technical Education, Bangalore.
The managements of aided and unaided private Engineering Colleges are requested to strictly abide by the above instructions and the instructions that will be issued from time to time.
Necessary amendments to the Karnataka Engineering Colleges and Technological Institute (Selection of candidates for admission) Rules will be issued separately.
This order issues with the concurrence of Finance Department vide their U. O. Note. No. FD 2339/Int/Expr-8/81 dated 3-9-1981. By order and in the name of the Governor of Karnataka.Sd/- (Srinivasacharya)Under Secretary to Government.Education and Y. S. Department.'
7. As is clear from para-2 of the order extracted above, it purports to regulate admission in the Government aided and unaided Private Engineering Colleges specifying the intake fixing particulars of seats available and the particulars of courses in the different Engineering Colleges for the academic year 1981-82 as indicated in the annexure to the Government Order. It also purports to regulate the capitation fee to be received by the aided and unaided Engineering Colleges scaling down such fees over a period of five years to achieve the desired object of totally abolishing the capitation fee system. But, on a careful analysis of the impugned Government Order, it is seen that the aided colleges are prohibited from charging the capitation fee with the commencement of the academic year 1982-83 itself, while the unaided colleges are permitted to collect the capitation fee till the academic year 1985-86 though at a rate which is gradually scaled down year after year.
8. The impugned order also at the same time empowers the State Government to fill up certain percentage of seats in accordance with the Rules framed by it leaving only 10 per cent of the total number of intake fixed for each college to be filled up by the management at its discretion subject to the Statutes, Ordinances, Regulations and Rules made by the respective Universities in regard to eligibility for admission to the respective Courses.
9. The conditions part of it provides that the seats filled up on the basis of merit in accordance with the Rules of the Government are not subject to payment of capitation fee, while the percentage of the seats left for the management may be filled up by the management at its discretion. The seats of the management shall also be filled by the Selection Committee appointed by the Government on the basis of capitation fee-cum-merit. Yet another condition which is challenged in testing the validity of the impugned order is condition No. 4 which provides for the collection of the capitation fee by the Joint Director of Technical Education, Bangalore, with a direction that the same be credited to a separate account in a Scheduled Bank to be operated by the Commissioner for Public Instruction and the Director of Technical Education at the Direction of the Committee of which they may become members and release the funds from such deposits to the various Colleges in accordance with the decision of the Committee to be formed, with reference to the development expenditure of the Colleges.
10. In this batch of petitions, I need not concern myself with the other conditions because there are no serious complaints made by the petitioners in regard to them. Condition No. 8 which puts the Colleges on notice that the Government will not sanction new courses in the Colleges even if they are recommended by the Universities in the petitioners' Colleges is a matter that need not be gone into at this stage as it is premature.
11. The attack by the petitioners, questioning the legal and constitutional validity of the impugned order is based on the following grounds:
(1) That the respondent-State Government has no competence to pass the order in exercise of its executive power under Article 162 of the Constitution as the Karnataka State Universities Act and the various Statutes, Ordinances, Regulations and Rules made by the Universities in the State, provide for admission, eligibility, the manner of affiliation of colleges, the manner of control of the affiliated colleges and the conditions and maintenance of standards in the various courses, and therefore the respondent-State Government is denied the right to exercise its executive power in the field which is specifically occupied by Law or Legislation of the State Legislature;
(2) That the respondent-State Government has no competence to prohibit by an executive order what is not otherwise prohibited by law made by the Legislature imposing a restriction on the exercise of the fundamental rights of the members, who in fact, manage, administer and run the colleges in accordance with the aims and objects of the trust or the societies as the case may be assuming that such restrictions are reasonable and stand the test as such in accordance with clause (6) of Art. 19 of the Constitution;
(3) Two of the colleges as already mentioned have apart from asserting their rights under Art. 19 of the Constitution have put their case on the higher basis of the absolute right guaranteed to the linguistic and religious minorities under Art. 30 of the Constitution;
(4) That the order apart from all other consideration is violative of Art. 14 of the Constitution in as much as there is no reasonable classification of the different aided and unaided colleges in the matter fixing either the quantum of capitation fee or the number of seats available for the management to be filled at its own discretion showing lack of application of mind, proper and reasonable classification of the various engineering colleges privately owned and managed smacking of total arbitrariness;
(5) That the order is bad in law as it in effect really takes away what is otherwise the property of the trusts or the societies in violation of the rights guaranteed under Art. 300-A of the Constitution; and
(6) That the impugned order is also bad in law inasmuch as the same has been passed without affording an opportunity to the management of the private engineering colleges to be heard in the matter of their right to administer the colleges in accordance with the Statutes, Ordinances, Regulations and Rules of the University, visiting civil consequences in the shape of loss of income to the colleges, practically rendering it impossible to continue to render service to the society at large by providing technical education at the University level when the effort in that behalf by the Government falls short of the requirement of the State far beyond what one would expect having regard to the directive principles of the State Policy in Part-IV of the Constitution.
12. This is the sum and substance of the grounds of attack of the petitioners in their pleadings. It will be useful at this stage to make reference to the pleadings of three of the petitioners, one being the Bangalore Institute of Technology-petitioner in Writ Petition 20049 of 1981, B.M.S. College of Engineering-petitioner in Writ Petition No. 20190 of 1981 and Prabhandhak Committee, Shri Nanak Jhira Saheb College of Engineering, Bidar-petitioner in Writ Petition No. 19524 of 1981. For the first mentioned college, it is asserted that it is run by a community which is backward, after forming a Society for the purpose of promoting the education in that community particularly and in respect of other communities generally and as such, in addition to the Institute of Technology, has already started 11 other educational institutions by its own efforts essentially depending upon the donations given by those interested in the development of the community and those interested in getting better education for their children. In fact, it is asserted for this petitioner that it has development programmes which involve crores of rupees, part of which has already been spent in providing accommodation and most modern equipment and highly trained staff with specialised degrees. This is supported by a statement showing the details of works and expenditure of the Bangalore Institute of Technology which forms Annexure-D to the petition.
13. In the common counter filed, there is no specific traversing of this assertion by this institution to which I will shortly refer. From Annexure-B in Writ Petition No. 20049 of 1981, it is seen, the estimated cost of the Building itself is Rs. 285-15 lakhs as on the date of the petition.
14. Similarly, the B. M. S. College of Engineering i.e., college run by B. M. Srinivasaiah Trust which is the petitioner in Writ Petn. No. 20190 of 1981 has given the abstract statement of expenditure, income and deficit for four years immediately prior to the filing of the petition. The total expenditure estimated ranges between Rs. 21,06,673/- in 1978-79, Rs. 22,72,596/- in 1979-80, Rs. 26,78,697/- in 1980-81, Rs. 30,64,126/- in 1981-82 and Rs. 36,14,000/- in 1982-83. The income from tuition fee and miscellaneous fee income at the highest appears to be in the year 1980-81 at Rupees 12,33,815/- Similarly, the maintenance grants obtained by it for such of the Courses for which the State offers aid is estimated in the academic year 1981-82 at Rs. 9,44,000/- while apparently the actual receipts in the earlier years do not exceed Rs. 10,10,000/-. Thus, from statement-1 to Annexure-H to the said petition it is seen that the trust has deficit to cover ranging from Rs. 2,35,211-00. Annexure to the same petition shows that modernisation scheme expenditure approved is in the sum of Rs. 44,65,808/- while the grant received is only Rupees 3,13,000/-. Thus, even on that account showing a deficit of Rs. 41,52,808/-.
15. The State in its Common counter does not dispute these assertions either. I have taken these two examples because the first of the petitioners is one of the latest additions to the group of privately managed Engineering Colleges while the latter is the earliest among the Engineering Colleges started under private management.
16. The limited purpose of furnishing the above figures is to indicate the resources required to run a well-equipped Engineering College offering numerous courses permitted by the concerned University. There may be among the petitioners who are not as old as the B.M.C. College of Engineering or as new as the Bangalore Institute of Technology. They are all not offering the same number of courses as the last mentioned institution. But, nevertheless, having regard to the annexure to the impugned order by the intake fixed, it is seen that the lowest intake is fixed at 120 while the highest is at 460 in the case of M. S. Ramayya Institute of Technology, Bangalore, which is the petitioner in Writ Petition No. 19850 of 1981. From this fact, it is reasonable to assume that the expenditure of an Engineering College and its income varies substantially depending on the type and number of courses offered by that college and the intake permitted by the Government. But these are only bare facts which have been culled out from the pleadings which may be useful to appreciate the contentions urged for the petitioners as well as the State.
17. We shall now turn to the statement of objections filed by the respondent State Government. The respondent-State has stated that there are 39 Engineering Colleges in the State of Karnataka, 18 of which had come into existence prior to 1979 and during the year 1979-80, 21 more private. Engineering Colleges were permitted to be started in the State of Karnataka. The respondent-State has stated that the private Engineering Colleges were permitted to be started by the Government with a fond hope and belief that such institutions imparting technical education in a manner beneficial to society would fill the gap caused by the shortage of seats in the Government run institutions. But, it was realised that the institutions began to convert the educational institution commenced by the trusts or the societies for collecting enormous funds from the public as capitation fee for admitting the students in the respective colleges. It is stated that the quantum of capitation fee that was collected by the private institutions was not only exorbitant amounting to exploitation of the public but also was without regard or consideration for the claims of meritorious students as well as the legitimate claims of backward classes of citizens who were unable to get the seats in the aided and unaided Engineering Colleges though merited. There is an assertion that the allotment of seats in the private institutions solely on the basis of the quantum of capitation fee that a candidate was willing to offer made it impossible for the merited among the weaker sections of the Society to seek admission to these colleges even though large hopes were raised when these institutions were started that they would function in the interests of the general public, particularly the interests of the students belonging to the region in which the institutions were started and the weaker sections of the Society. It is further asserted that the availability of seats in these institutions became the monopoly of a few rich students who could offer to pay the amount demanded by the institutions without any regard for the pernicious consequences that such system of imparting education only on the basis of collection of capitation fee would have on the interest of the State and the nation as well. It is further asserted by the respondent-State that the evils following this system of collecting capitation fee by the petitioners and other institutions reached such alarming proportions that there was unequivocal public demand for abolition of the system of capitation fee so that education may be freed from the evil clutches of money-powers and become available to all on the basis of merit and the reservations permissible under the Constitution of India in favour of the backward classes and weaker sections of the Society.
18. This assertion no doubt is justifiable for the order and does not deal with the source of power for making the order. The statement of objections also refers to the general feeling in the country regarding the charging of capitation fee system in admitting students to Engineering Colleges and the views expressed by the Estimates Committee of the Parliament as well as the views of the University Grants Commission. It was in this background that the Government constituted the University Review Commission under Section 61 of the Act among other things to go into the question of levy and collection of capitation fee. It is in the light of the report submitted by the Review Commission, that the impugned order dated 5-9-1981 was passed purely in public interest and after due deliberation and a detailed examination of all aspects of the matter, which in itself, renders the order neither hasty nor arbitrary as contended by the petitioners.
19. It is asserted in the statement of objections that the executive power being co-extensive with the legislative power in regard to the subject under Entry 25 in List III of Sch. VII to the Constitution, the contentions of the petitioners that the government had no power to pass the impugned order was not tenable. It is also asserted that (the contention that ) the State Legislatures has no power under Entry 25, List III of Sch. VII to the Constitution to take steps for abolition of capitation fee and that power is available only under Entry 66 of List I is erroneous and untenable. It is further denied that the impugned order violates Art. 19(1)(g) of the Constitution as contended by the petitioners and in any event the State asserts that the petitioners have no fundamental rights to assert not being citizens inasmuch as the order does not either preclude them from forming themselves into an association but there is no such rights as a fundamental right to run an educational institution. It further asserts that the impugned order only regulates the admission of students by these privately managed colleges without in any manner affecting the educational institutions or their right to continue to run them. It is further stated that the compliant of the petitioners that the impugned order interferes with their right of management is only imaginary. It is also stated that the impugned order does not violate Art. 300-A of the Constitution as the right to run educational institutions is not property in the first place and even if it constitutes properly as contended by the petitioners, the impugned order does not have the effect of depriving the petitioners of such property. It is further asserted that the contentions of the petitioners that the impugned order is liable to be struck down on the ground that it is outside the scope of the Karnataka Engineering Colleges and Educational Institutions (Selection of Candidates for Admission) Rules, 1979, is without substance as even apart from the provisions of these rules the State has the power to pass the impugned order. It is further stated that there is no violation of Art. 14 of the Constitution by the State Government in passing the impugned order which has been passed after taking into consideration the requirements and the capacity of each one of the educational institutions referred to by the petitioners in the State of Karnataka and after fixing the intake of each of the Colleges though such fixation itself is not challenged by any of the petitioners though that intake forms part of the order as an annexure. The only relevance of the intake fixation is reliable to the amount of capitation fee which was required to be collected in accordance with the provisions contained in the body of the order. It is further contended that there was no need for classifying the institutions affected by the impugned order except the classification made of aided and unaided institutions which was justifiable having regard to all the relevant factors and the objects sought to be achieved by the order and therefore it could not be said to be violative of Article 14 of the Constitution.
20. There is a bald assertion that the order does not offend Art. 30(1) of the Constitution in so far as the two of the petitioners are concerned which are religious minority institutions.
21. There is nothing else which is required to be noticed in the statement of objections of the respondent-State.
22. However, some of these assertions in the statement of objections which have been elaborated by the learned Advocate General appearing for the State will be noticed at the time of dealing with the contentions advanced for the petitioners. I have earlier set-out the contentions put forwarded by the petitioners. In the light of the objections to those contentions, the following questions fall for determination in these writ petition. They are:
(1) Whether the impugned order is regulatory in character and if so, whether such an order can be passed regulating aided and unaided educational institutions which are exclusively in the private management of either Societies registered under the Societies Registration Act or Trusts?
(2) Whether the respondent -State has without executive power passing the impugned order on account of the provisions contained in the Karnataka Universities Act and the various Ordinances, Rules. Regulations and Statutes made by the authorities of the Universities in accordance with he provisions of the Karnataka State Universities Act?
(3) Whether the impugned order violates the rights of the petitioners under Art. 19 of the Constitution and in the case of the two of the petitioners right guaranteed to linguistic and religious minorities under Article 30 of the Constitution?
(4) Whether the impugned order is violative of Art. 14 of the Constitution ?
(5) Whether the impugned order violates the constitutional rights of the petitioners under Art. 300-A of the Constitution?
(6) Whether the impugned order is bad in law as it is violative of rules of natural justice?
23. In order to answer the questions formulated above it will be necessary to state that the capitation fee is not defined in any of the provisions of the Universities Act or Statutes etc., framed by the Universities. Even the impugned order does not define anywhere the term 'Capitation fee'. In that circumstance, the Court has to merely go by the ordinary dictionary meaning of the term 'Capitation fee'. The word 'Capitation' has the following meaning given in the Concise Oxford Dictionary, V Edition, printed in 1972 with correction at page 177:
'Capitation, n. (levying of ) tax or fee of so much a head; grant, of poll-tax (caput-it is head-ATION).'
24. From the above, it is clear that when levied as fee it is an imposition by the appropriate authority. In the instant case, for the management of the petitioners-institutions too many of the petitioners have asserted that they are not imposing capitation fee as such but they accept only some amount sometimes specified and at times not specified, as donation, for granting a seat in their respective institutions for the B.E. Degree Course. While, the learned Advocate General, on the other hand, in the course of his arguments, has asserted that this levy of capitation fee, far from being donations or voluntary payments made by the student or his guardian or parents, is an extortion which is the condition precedent for granting of a seat. I may, at this stage, while in principle agreeing with the learned Advocate General that in certain instances levy of capitation fee by any educational institution could be construed as extortion, such construing will depend entirely on the facts and circumstances of each case. For instance, if parents desire admission of their children to exclusive educational institutions known for their high standards maintained, may be called upon to pay admission fee (which is not different from capitation fee) particularly to when such institution is privately owned and managed. Some times, high admission fees may be desirable in order to limit the rush for admission to a particular educational institution. By that reason alone if parents are willing to pay the admission fee, it cannot be said to be extortionate. In the instant case on hand, I have not had the advantage of knowing what exact amount of fees is levied by each of the petitioners for granting a seat. It varies from nothing as asserted by the Bangalore Institute of Technology to Rs.30,000/- charged to non-Karnataka Students as evidenced from the impugned order itself. But, by and large, all the petitioners do admit that they do charge capitation fee though there may be exceptional cases where it is relaxed. In order to accept the contention of the learned Advocate General that it is exertion, I have not had the advantage of any material being placed before me by the respondent-State. What is surprising is, no parent or guardian has come forward to support the impugned order on behalf of the State alleging that the fee charged was not voluntarily paid by that him. For this reason alone, I should hold that it is difficult for this Court to come to the conclusion that the capitation fee charged by the institutions must be looked at as a compulsory levy at exorbitant rate extracted from the parents or guardians or the students as a condition precedent for admission to the Colleges. Many a parent will make great sacrifice to provide a particular type of education in the interest of his ward and that sacrifice cannot be said to be involuntary. I have dealt with this at the beginning so that this aspect need not be gone into in deciding the questions formulated.
25. What are regulatory measures in the field of education have more that once come up for consideration before Courts in this Country. In the case of Sidhrajbhai Sabbai v. State of Gujarat (AIR 1963 SC 540), the Supreme Court was considering the scope of Art. 30 of the Constitution, that is, the right of linguistic and religious minorities to establish and administer educational institutions of their choice. Shah, J. as he then was, compared the content of the right under Art. 30 of the Constitution in the following terms (at p. 345):
'Unlike Art. 19, the fundamental freedom to establish and administer educational institutions by minorities guaranteed under Clause (1) of Art. 30, is absolute in terms: it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Art. 19 may be subjected to All minorities, linguistic or religious have by Art. 30(1) an absolute right to establish and administer educational institutions of their choice and any law or executive direction which seeks to infringe the substance of that right under Art. 30(1) would to that extent be void. This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. The fundamental freedom is to establish and to administer educational institutions .... institutions which cater to the educational needs of the citizens or sections thereof. Regulations made in the true interests of efficiency of instruction discipline, health, sanitation, morality, public order and like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institutions in matters educational.'
26. Similarly, in the case of All Saints High School v. Govt. of Andhra Pradesh : 2SCR924 , again the scope of Art. 30(1) of the Constitution came up for consideration, Chandrachud, C.J., in his separate judgment had this to say (at p. 1048):
'These decisions show that while the right of the religious and linguistic minorities to establish and administer educational institutions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining the excellence thereof can be validly prescribed. For maintaining educational standards of an institution, it is necessary to ensure that it is competently staffed. Conditions of service which prescribe minimum qualifications for the staff, their pay scales, their entitlement to other benefits of service and the laying down of safeguards which must be observed before they are removed or dismissed from service or their services terminated are permissible measures of a regulatory character. As observed by Das C. J. in Re. Kerala Education Bill, 'Right to administer cannot obviously include the right to mal administer.' and in the words of Shah, J. in Rev. Sidhrajbai, 'The right is subject to reasonable restrictions in the interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like'. Hidayatullah, C.J., said in Very Rev. Mother Provincial that 'Standards of education are part of management as such', that the 'minority institutions cannot be permitted to fall below the standard of excellence expected of educational institutions' and that 'the right of the State to regulate education, educational standards and allied matters cannot be denied'. Justice Jagmohan Reddy, in D.A.V. College, reiterated while upholding clause 18 of the Guru Nanak University, Amritsar Act, 1961 that regulations governing recruitment and service conditions of teachers of minority institutions, which are made in order to ensure their efficiency and excellence do not offend against their right to administer educational institutions of their choice.(Underlining is mine)
27. From the two passages extracted from the aforementioned two decisions, it is clear that at least, so far as Art. 30 of the Constitution is concerned, regulatory measures are more or less enumerated and described. It is true they are not exhaustive, but in matters like these no single decision can make an exhaustive list of regulatory measures. But, what is clear from the above enunciation is that the right of management cannot be lightly interfered with in respect of the instructions established and managed by linguistic or religious minorities. While the content of right under Article 30(1) of the Constitution may be more absolute than the content of the right conferred on the citizen under Article 19(c) and (g) thereof, the extent of interference may vary as between the institutions established by the minorities and institutions established by others but nevertheless citizens, or bodies of citizens. Whether the extent of interference is regulatory in character or otherwise, an impediment to the proper exercise of the rights guaranteed under Article 19 of the Constitution should be examined having regard to the nature of the restrictions imposed with the object of regulating. In the instant case, what the petitioners have questioned is the interference with their right in selecting and admitting students of their choice. The right to charge capitation fee or admission fee, according to the particular needs of the institutions, the petitioners contend, is taken away as 90 per cent of the seats available to the institutions as fixed by the State Government are reserved for being filled up by the Selection Committee constituted up by the State Government which is not regulatory but restrictive and prohibitive in character and therefore, offends Article 19(g) of the Constitution and more so in the case of minority institutions protected as well by Article 30 of the Constitutions.
28. Sri. S.G. Sunder Swamy, learned Counsel appearing for six of the petitioners two of whom claim rights under Article 30 of the Constitution as well, pointed out that a private management owning an institution had a right of selection and admission subject only to the Regulations, Ordinances, Rules and Statutes of the concerned University to which the institution is affiliated and the Government cannot prohibit by an executive order the charging of capitation fee and the Government could not also restrict to reserve any particular number of seats and allocate them to itself. He further submitted that any encroachment of such rights would amount to interference and such interference was impermissible, more so by way of an executive order.
29. He also stressed like many other Counsel that the impugned order is violative of Article 14 as it is arbitrary and unreasonable and without proper application of mind.
30. He relied essentially on the ruling of the Supreme Court in the case of R. Chitralecka v. State of Mysore : 6SCR368 . In that case the position was reversed inasmuch as the appellant therein contended that the Government had no power to prescribe criteria for admission by way of eligibility different from the one prescribed by the University as no executive power was available to the State Government to exercise under Article 162 of the Constitution as that area was occupied by the Regulations made by the University. In the light of that contention, Subba Rao, J. as he then was, had the following to say (at p. 1830):
'This and similar other passages indicate that if the law made by the State by virtue of Entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legislature power of the Parliament under the entry, 'Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions' reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the impact of the State law providing for such standards on Entry 66 of List I is so heavy or devastating as to wipe out or appreciably abridge the central field, it may be struck down. But that is a question of fact to be ascertained in each case. It is not possible to hold that if a State Legislature made a law prescribing higher percentage of marks for extra-curricular activities in the matter of admission to colleges, it would be directly encroaching on the field covered by Entry 66 of List I of the Seventh Schedule to the Constitution. If so, it is not disputed that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law.'
31. In the same judgment it was held that the orders of the Government do not contravene the minimum qualifications prescribed by the University and what the Government had done was appointing a Selection Committee to select students who had the minimum qualification prescribed by the University. The colleges run by the Government, having regard to financial commitments and other relevant considerations could only admit a specific number of students to the said colleges. They could not obviously admit all the applicants who had secured the marks prescribed by the University. It has necessarily to screen the applicants on some reasonable basis. The orders of the Government therein only prescribed criteria for making admission to colleges from among students who secured the minimum qualifying marks prescribed by the University. Once it was conceded, and it was not disputed that the State Government could run medical and engineering colleges, it could not be denied the power to admit such qualified students as passed the reasonable tests laid down by it. That was a power which every private owner of a College would have had and the Government which ran its own colleges could not be denied that power. (underlining is mine).
32. This enunciation of the law has been utilised by the Counsel for the petitioners to emphasize the argument that the selection and admission to the college exclusively vest in the management of the college and not in an outside agency. Particularly from the underlined portion, it is clear the Supreme Court laid down two things which are still good law. One is that the executive power would be available to the State even in the present state of legislation if that power is so exercised without contravening the provisions of any Legislation in the same field. Secondly, that the Governments has the power to lay down its own criteria for admission to the colleges owned and run by it as long as it did not contravene the minimum standards prescribed by the University, such power being available to all owners of educational institutions: if the position is reversed, as in the instant cases, the petitioners claim, the right of admission to their institutions on such criteria as are prescribed which are not contrary to the regulatory measures prescribed by the concerned University under the Universities Act, it cannot be said to be required to be granted by an executive order like the order impugned in these Writ Petitions.
33. Numerous other decisions of this Court and the Supreme Court have been relied upon in support of the contention. But it suffices to cite the decision of the Supreme Court in the case of State of Andhra Pradesh v. Lavu Narendra Nath : 3SCR699 . In that case the Supreme Court was again considering the prescription of a written test for admission to medical college by an executive order in addition to the minimum eligibility prescribed under the relevant Statutes of the concerned Universities. The ruling of the Supreme Court in Rajandran's case : 2SCR786 was relied upon to the effect that so far as admission was concerning it has to be made by those who are in control of the Colleges. Thus, without referring to all the decisions cited it is clear from the enunciation from the decisions of the Supreme Court that the right of management includes the rights of selection and admission of students. If the right to select and admit students is taken away, then there is direct interference with the right of the management of the College. If that is so, in the impugned order, in so far as it takes away 90 per cent of the seats in the petitioners' institutions for being filled up by selections and admission by the Government is an interference with the rights of the petitioners to manage the institution in question. It is a more aggravated interference when those institutions are protected under Article 30 of the Constitution as well. In that view of the matter, the impugned order in so far as it reserves in favour of the Government power to fill seats to the extent of 90 per cent should be held to be without the authority of law, illegal and liable to be struck down.
34. In this connection, it is unnecessary to decide whether the area is occupied by any legislation except to point out that the Karnataka Universities Act is a composite Act providing for incorporation of Universities in the States, incorporation of various authorities, providing for maintenance of discipline and standards, affiliation of colleges, de-affiliation of Colleges as well as issuing directions in the matter of reservation of seats.
35. A brief reference to these aspects will not be out of place. Under Section 6 of the Act, Universities can be directed by the State Government to make reservation in favour of Scheduled Castes. Scheduled Tribes, Class declared by the State Government as socially and educationally backward, nominees of the Central Government. Defence personnel and ex-servicemen and their children or wards, and children of freedom fighters. By that if does not mean that the Government is enable under that provision to issue directions to private managements to make some reservations in effect to fill up 90 per cent of the seats in accordance with the earlier order of the Government.
36. Similarly, it is seen that the standards of education and holding of examinations are required to be maintained by the Academic Council and the Syndicate. Discipline has to be maintained by the Vice-Chancellor and the Syndicate jointly under Section 62 of the Act. Under Section 53 of the Act it is the Government which grants affiliation under certain conditions. Particular attention must be drawn to Cls. (h) and (I) of sub-section (2) of Section 53 of the Act. Clause (h) provides that the financial resources of the College are such as to make due provision for its continued maintenance and efficient working and Clause (I) provides that rules fixing the fees (if any) to be paid by the students have been framed or will be framed. In other words, the Government will be within its right to refuse affiliation if in its opinion the financial resources of the College are such that it is not able to provide for continued maintenance and efficient working of the institution and that the institution has made the Rules fixing the fees or has undertaken to so frame the Rules. It is only when all the conditions prescribed under Secs. 52 and 53 of the Act are satisfied the Government grants affiliation. Once affiliation is granted, then the college would come under the Universities Act and become subject to the regulatory control of the University and therefore, outside the regulatory control of the State Government in matters covered by the Act. Section 56 of the Act provides for withdrawal of affiliation for failure to comply with any of the provisions of sub-section (2) of S. 53 of the Act or the college is conducted in a manner which is prejudicial to the interest of education. I have referred to these sections only to meet the argument of the learned Advocate General that executive power is still available to the State Government. As earlier stated, it is unnecessary to decide that question as the petitioners will succeed on the basis of the interference with their rights under Articles 19 and 30 of the Constitution. If 90 per cent seats are not be to filled up by the State Government, then the petitioners cannot have any grievance in so far as their right to admit students of their choice is concerned.
37. The third question whether the impugned order is violative of Articles 19 as well as 30 of the Constitution assumes some importance in the light of the strenuous arguments advanced by the learned Advocate General. He has fairly conceded that if this Court comes to the conclusion that the impugned order was prohibitory in character and not regulatory, then he had no answer as two of the petitioners have asserted their rights both under Articles 19 and 30 of the Constitution. In so far as the other petitioners are concerned, his argument was that the petitioners being Societies and Trusts, and therefore not being citizens could not claim fundamental rights under Article 19 of the Constitution which is available to the citizens only. Further, he has relied on the observation of the Supreme Court in Bank Nationalisation case : 3SCR530 . In that case the Supreme Court observed that a Company registered under the Companies Act was a legal person, separate and distinct from its individual members. Property of the Company was not the property of the Share-holders. A share-holder had merely an interest in the Company arising under its Article of Association, measured by a sum of money for the purpose of liability, and by a share in the profit. Again a Director of a Company was merely its agent for the purpose of management. The holder of a deposit account in a Company was its creditor and he was not the owner of any specific fund lying with the Company. A share-holder, a depositor or a director may not therefore be entitled to move a petition for infringement of the rights of the Company, unless by the action impugned by him, his rights were also infringed. The thrust of the argument was that similar to the Companies, Societies also, by virtue of the provisions contained in the Societies Registration Act, were capable of suing or being sued in the name of the Society and as much must be treated as a body corporate having a distinct entity separate from its members, and such a Society cannot maintain a petition challenging the order. That argument was further supported by a decision of this Court in the case of Shetkari Sahakari Sakkar Karkhana Ltd., Sangli v. State of Mysore (AIR 1972 Mys 325). In that case, a Division Bench of this Court held that a registered Co-operative Society was not a natural person and hence not a citizen within the meaning of that expression in Article 19(1) of the Constitution. Undoubtedly, there is a distinction between a person that is, a human person and an artificial or juristic person created by virtue of the provisions made in different laws. Artificial persons or juristic persons cannot assert fundamental rights which are guaranteed to citizens only. If that proposition is accepted then the petitioners cannot claim their rights. But, the Supreme Court had occassion to consider the rights of members of a Co-operative Society in the case of All India Bank Employees' Association v. National Industrial Tribunal, Bombay : (1961)IILLJ385SC . That was a case arising under the Industrial Disputes Act wherein right under Article 19 of the Constitution vis-a-vis appellant's assertions were examined. It was therein held that Section 34-A of the Banking Companies Act, 1949 did not contravene Article 19(1)(c) and Article 14 of the Constitution. In Para-19 of the judgment as reported in AIR., the Supreme Court explained the decision as follows:
'The resulting position may be illustrated thus: If an association were formed for the purpose of carrying on business, the right to form it would be guaranteed by sub-clause (c) of Clause (1) of Article 19 subject to any law restricting that right conforming to Clause (4) of Article 19. As regards its business activities, however, and the achievement of the objects for which it was brought into existence, its rights would be those guaranteed by sub-clause (g) of Clause (1) of Article 19 subject to any relevant law on the matter conforming to Clause (6) of Article 19: while the property which the association acquires or possesses would be protected by sub-clause (f) of Clause (1) of Article 19 subject to legislation within the limits laid down by Clause (5) of Art. 19.'
38. In other words, he ratio of that decision is that while an association may not be a citizen, the members who formed the Society are citizens and can maintain petitions and asset their rights under Article 19 of the Constitution. In the instant case, barring two of the petitioners other petitioners are both the members of Societies and the Societies as a body. In the case of trusts, it is trusts as well as some of the trustees. It is not contended by the learned Advocate General that trustees or members of Societies are not citizens. When a similar question was again examined by the Supreme Court in the case of Bennett Coleman and Co.Ltd., v. Union of India : 2SCR757 the Supreme Court had this to say at paragraph 22 as reported in the AIR Reference is made in the said paragraph to the Bank Nationalisation case on which the learned Advocate General has relied:
'In the Bank Nationalisation case : 3SCR530 (supra) this Court held the statute to be void for infringing the rights under Articles 19(1)(f) and 19(1)(g) of the Constitution. In the Bank Nationalisation case (supra) the petitioner was a share-holder and a director of the company which was acquired under the Statute. As a result of the Bank Nationalisation case (supra) it follows that the Court finds out whether the legislative measure directly touches the Company of which the petitioner is a share-holder. A shareholder is entitled to protection of Article 19. That individual right is not lost by reason of the fact that he is a share-holder of a Company. The Bank Nationalisation case (supra) has established the view that the fundamental rights of share-holders as citizens are not lost when they associate to form a Company. When their fundamental rights as share-holders are impaired by State action their rights as share-holders are protected. The reason is that the share-holders' rights are equally and necessarily affected. The rights of share-holders with regard to Article 19(1)(a) are projected and manifested by the news papers owned and controlled by share-holders through the medium of the Corporation. In the present case, the individual rights of freedom of speech and expression of editors. Directors and share-holders are all exercised through their newspapers through which they speak. The press reaches the public through newspapers. The share-holders speak through their editors. The fact that the companies are the petitioners does not prevent this Court from giving relief to the share-holders, editors, printers who have asked for protection of their fundamental rights by reason of the effect of the law and of the action upon their rights.'
39. From the above enunciation, it is clear that the strong exception taken that Societies are not citizens by the learned. Advocate General though technically correct it is not so in substance. But one has to look at the relevant prayer for relief in the petitions and not the cause title. Trusts and Societies are created by memorandum registered under the Act or by instrument of Trust by which they seek to achieve the objects for which the trust is created. If the governmental action complained of affects the rights of the members of the Society or trustees of the trust, directly or indirectly, affecting the objects of the Society or trust, then the rights of the members of the Society or the trust shall be protected by this Court. I, therefore, do not think that the plea of the Advocate General that the petitioners have no fundamental right to assert can be accepted.
40. In this context, it would be useful to further clarify how the rights of the petitioners are affected under Article 19(1)(c) as well as Article 19(1)(g) of the Constitution, if the impugned order is given effect to. Apart from the two essential ingredients of selecting students for admission who are eligible under the University Regulations for admission to the colleges being lost to the Management, the whole object for which the Society is established, that is, in the case of linguistic and religious minorities the main purpose of educating the persons belonging to the said minority or to impart education to members of a particular class of persons depending on the object of that society and otherwise to carry on the occupation or profession of teaching or imparting education is totally lost if they are not allowed to have the students of their choice. If income has to be diverted to a fund not controlled by the Society or private management as the case may be but controlled by the Committee appointed by the State Government, then there is greater interference or impediment to the free management of the Society or trust to achieve its objects.
41. In fact, if one were to go by the figures supplied by Mr. Parthasarathy, learned Counsel appearing for the Bangalore Institute of Technology, one of the petitioners, it requires approximately fifteen crores to fully implement its scheme of expansion and make it a perfect institute of technology imparting higher technical education. He has also furnished figures as to what at the end of five years the Committee, as per the impugned order, will have control in respect of 24 unaided colleges. It amounts to approximately about 15 crores. If one institution requires 15 crores for development and maintenance in the next few years to come to clear to the needs of the institutions, it is unthinkable how the fund under the order impugned is going to provide for all the 24 unaided institutions from the fund.
42. I should not fail to mention that aid is given to some of the institutions only in respect of certain Courses and not in respect of all the Courses. Even aided institutions are partly aided and partly unaided and funds have to be provided to these institutions also from the fund created in the impugned order as the Committee cannot discriminate because the collection of capitation fee is the source of fund from all the colleges irrespective of the fact whether aided or un-aided. Viewed thus, the thrust of the argument by the petitioners has been that the measure contemplated under the impugned order instead of regulating the higher technical education at the University level in the State is going to put an end to the private enterprise in importing higher technical education at University level for which the Societies or trusts as in the instant cases have been formed.
43. Reliance was placed by learned Advocate General on the report of the Review Commission submitted by the Committee appointed in that behalf under the provisions of the Karnataka State Universities Act. The report is published in 1980. At pages 8, 9 and 10 the Committee has discussed the weaknesses in the institutional framework of higher education in the state. A paragraph is devoted to technical education wherein it is pointed out that for over several years several private institutions have developed and even been catering to 2/3 of the needs of the State in imparting technical education. In other words, the Government itself has not been able to provide higher technical education on its own to the needs of the State even according to the report. At pages 32 and 34 of the same report, the Committee has dealt with finance of the Colleges. In that part of the report they have referred to the system of collection of capitation fee as a national evil. This Court is reluctant to express any opinion on the correctness of the statement. But this Court certainly expresses with respect, to ask the question as to the basis of such conclusion by the Committee when the Government is not able to meet the needs of higher technical education of the State and elsewhere in the country on its own. In fact, depending on the passages in this part of the report, learned Adv. General contended that this Court should not bless the petitioners for commercializing the technical education and treat that as a fundamental right of the petitioners. In the context of today, education which is now transferred to the concurrent list, a subject to be dealt with both by the Union Government and Government of the States, starts at the primary level and needs attention from the point of future of the nation. From primary to secondary the fall out is of some meaning. From secondary to the college the full out is still more and from the level of University diversification of education, the demand of each State vary on several given factors. But the emphasis on Scientific and technological education can never be lost sight of in the process. If the state is unable to provide this education from out of its revenues, then it should not grudge to the others who even on commercial basis can provide and satisfy the needs of the State or the region.
44. Viewed thus, there is no doubt in my mind that the order impugned not only encroaches on the right of management in the matter of choice of students to be admitted to the college but it also prohibits or places such an impediment in the way of the petitioners to complete the objects for which they associated themselves in the form of Society or Trust. This would be in clear violation of Article 30 (in so far as the minority institutions are affected) and Art. 19(g) of the Constitution which provides for freedom to pursue trade, occupation or business.
45. It may be useful at this stage to notice a decision of a Division Bench of the High Court of Bombay in the case of Sakharkheda Education Society, Sakharkheda v. State of Maharashtra : AIR1968Bom91 . In that case an objection was taken on behalf of the State that educational institutions cannot be regarded as business and in that behalf reliance was placed on the decision of the Supreme Court in the case of University of Delhi v. Ram Nath : (1963)IILLJ335SC . Distinguishing the decision of the Supreme Court the Division Bench of the Bombay High Court held that Ram Nath's case was not an authority for the proposition that educational institution cannot be regarded as a profession or occupation or business. They further held that those words were of wide import and whether or not gain was made by an institution, it cannot cease to be business. A further contention also was negatived with reference to Article 30 of the Constitution and it was held that Article 19(1)(g) was a general guarantee of a particular kind of fundamental right in wide words, while Article 30 is intended to guarantee certain rights to minorities and unless in the enumeration of the rights, the right of education were mentioned, probably, it would have been excluded. The difference in working, therefore, could not support the contention put forward.
46. I am in respectful agreement with the conclusions reached by the Division Bench of the Bombay High Court. Teaching has been an occupation and profession from times immemorial. It cannot cease to be so in modern times merely because the methods have changed. To say teaching is not an occupation is to say something which to my mind appears to border on the ridiculous. Today on account of pressure, schools and colleges and the mode of imparting education have undergoes numerous structural changes. The education, in the past was the blessing of the King of a State. Now it is not only the duty and obligation of the State to provide education but also the citizens are free to educate themselves in the manner which, in their judgment is best suited for them or their children. With that object they start educational institutions either technical institute or a nursery school as permissible under Art. 19(1)(g) of the Constitution. It is an impediment to achieve the objects of a group of persons if an order as is impugned in these petitions is made and would certainly be violative unless such an impediment is made by way of legislation and stands the scrutiny of this Court as to its reasonableness in terms of clause (b) of Art. 19 of the Constitution. If an impediment of this kind, even if it is introduced by legislation, is doubtful to stand the scrutiny of the Court as to the reasonableness, it certainly cannot be done by an executive order which the impugned order is.
47. If the impugned order is violative of Art, 19 of the Constitution, it is unnecessary for me to state it again more so in relation to Art. 30 of the Constitution on which two of the petitioners have founded their challenge.
48. I have already pointed out that some of the petitioners, notably the Bangalore Institute of Technology and Guru Nanak Dev Engineering College both of which are Societies registered under the Societies Registration Act have asserted that they do not collect capitation fee but collect voluntary donations from the parents or guardians of students. That is not denied by the State in its counter. But this will be rather discussing the question which I have discussed in answering the first two questions. Whatever may be the view of the committee which made the report to the Government in 1980, the fact remains that without collection of capitation fee or donations the technical education in the State could not have advanced to the extent it has advanced. In its wake it may have created certain evils. But the Government should care these evils wherever found by control of these institutions by appropriate legislation.
49. The next question is whether the impugned order is violative of Art. 14 of the Constitution? Though the question is framed in wide terms, the thrust of the argument has been that a uniform capitation is fixed for all the institutions mentioned in the annexure to the impugned order. It is admitted, as is obvious that the colleges vary in size and differ vitally in the courses which they offer for study. The intake of students also varies as fixed by the Government. The outlay of capital of these various institutions also vitally differ but the capitation fee collected is uniform. In other words, the argument has been that there has been no application of mind or rationale regarding the uniform capitation fee fixed without reference to the quality of service rendered by the concerned colleges and all are treated equally though they are not equals in the sense that they cater to different needs and incur varying expenditure for imparting education in different courses. The State has not met this argument at all. In fact it is the argument of the learned Advocate General that all Institutions of technology imparting courses in Engineering have been treated equally. I find it difficult to accept that argument for the reason that some of the institutions have been formed with low outlay and they impart Civil, Electrical and Mechanical Engineering courses while others offer in addition to the last mentioned three courses, Electronics, Automobile and Industrial Engineering and Computer Technology etc., while require greater outlay and more sophisticated and properly trained teachers. Even on this ground, the order is liable to be struck down because unequally placed persons have been treated equally, which the State is not competent to do.
50. The next question is whether the impugned order various the constitutional rights of the petitioners under Art. 300-A of the Constitution? It is unnecessary for me to trace the history of this Article. This right was enshrined in Art. 19(1)(f) and Art. 31 of the Constitution. By 44 the Amendment to the Constitution, the right to property was taken away from Part-III of the Constitution and enshrined in Art. 300-A of the Constitution. That Article clearly states that no person shall be deprived of the property except by authority of law. The petitioners have argued that by taking control of the funds of the colleges utilising its facility of staff, building, machinery, equipments, library, laboratory etc., they have been deprived of the property without the authority of law which, undoubtedly, the impugned order is not. On this score whether the impugned order is law or not there is no dispute. That question is covered by a decision of this Court in a Bench of five Judges in the Gokula Education Foundation v. State of Karnataka, : AIR1977Kant213 (SB).
51. Learned Advocate General has contended that there is no deprivation of the property as the same is left in the custody of the management. This may be so technically. But, if 90 per cent of the students are sent to their institutions against the wishes of the management, they use the building, laboratory, library, equipments etc., which the management owns, then there is deprivation to the management to fully enjoy its property. Any restriction however reasonable it may be imposed on the property enjoyed would, in my opinion, amount to deprivation of property. What is that property right at all if one is deprived of the manner one wants to use it? Therefore, I must accept the argument of the petitioners and hold that the impugned order in effect not only collects money and controls it through the Committee appointed under it as per clause (4) of the Order but also without paying any compensation whatsoever permits utilisation of the building and other property of the petitioners for meeting the needs of the students whom the Government calls merit students who alone deserve higher technical education.
52. While on this topic, I must point out that the justification for the impugned order, as asserted by the learned Advocate General, is that the wealthier class of Society alone are able to secure higher technical education at the cost of more meritorious students belonging to weaker sections of the society who cannot pay the capitation fee which the petitioners charge. It is true, by a large, the wealthier section of the society have always been at an advantage over the weaker section of the society. In fact, even in Government Colleges, the wealthier class are likely to get more students as their performance in the qualifying examination is likely to be better on account of their background. But that does not mean in a situation where the Government cannot provide, the wealthier class should be denied the benefit of educating themselves if they can afford the capitation fee or donation as the case may be. One other weakness in the arguments is that the University has prescribed a particular percentage of marks as constituting the minimum marks to enter technological courses of the University. If that minimum standard is there to enter the course, then they cannot make a distinction between a person who is wealthy and who is eligible to enter the course and a poor person who has secured slightly more marks than him. If the Government really wants to make available the technical education only to the merited, then it is for the University to change its minimum standards to high percentage of marks in the concerned subjects for eligibility and not to complain against wealth of one and make an issue of poverty of the other.
53. Lastly, the question that falls for determination is whether the impugned order is bad in law as it is violative of the rules of natural justice. I have already extracted passages from Chitralekha's case : 6SCR368 . Even there the Supreme Court took the precaution to mention that the Government by executive orders may regulate admission to technological course owned and managed by the private bodies provided consent was obtained by those private bodies. It is not denied by the State that the impugned order was passed without either consulting the petitioners-institutions or even suggesting to them of a discussion or hearing. The report on which the learned Advocate General placed so much reliance also does not appear to have been made after hearing the institutions in question. No doubt there is reference to the three committee members visiting some of the institutions but no details are available in the report as to whom they met, what they found-out and what was expected of a management on the visit of the committee. There is no indication that any evidence was recorded from any of the representatives of the petitioners-institutions before a judgment was passed that they were exploiting the students. I have earlier stated that there is no evidence at all or any parent has complained about the payment of capitation fee or donation. None has come before the Court nor there is any evidence that any parent has complained to the Government. Therefore, the assumption made both by the Committee and the Government that capitation fee system is an evil does not appear to be well founded in the context of the inability of the State to provide.
54. There are means by which a check can be placed by which the Government can achieve its object. The Internal Revenue can ask the source from which the capitation fee is paid. Institutions themselves can be watched and checked in the proper filing of returns as required under law by which they are registered as Societies and call for report of their Receipts and Expenditure which would have the effect of not interfering with the administration but regulating and supervising the management of private colleges. Unless this is done, on the basis of the report submitted by the Committee it cannot be said that capitation system is an evil. But it is made clear that I am not blessing the system as something good. When the educational opportunity provided is not sufficient and by the system of capitation fee more people are educated the Government should not have a serious grievance. If there is any way of controlling the system of capitation fee lawfully, it may do so.
55. One argument advanced by Sri. Sunder Swamy regarding Guru Nanak Dev Engineering College should be noticed and that is that the order directs for reservation of 50 per cent of the seats in the merit pool to be reserved for Karnataka Students in each of the two petitioners-institutions including the above mentioned college. In several decisions concerning educational institutions and minorities. the Court, has time and again explained the scope of Arts. 19 and 30 of the Constitution. All Saints High School's case : 2SCR924 to which I have already referred to earlier, made the law in question therein inapplicable to minority institutions, instead of striking it downs. Any encroachment made on the seats of the minority educational institutions would contravene Article 30 of the Constitution and therefore, in that position any command made by an executive order would be inapplicable to such institutions.
56. If Cls. (1) to (5) of the impugned order including the fixation of capitation fee and the scaling down of the receipt over a period of five years is not sustainable, then the rest of the order becomes meaningless and therefore, the whole of the order must go. But, I must however, clarify that since the annexures to the order do no more than fix the intake, that part of it is kept intact as it is part of maintaining standards in addition to the standards prescribed by the University and therefore, by an executive order it can be controlled by the State. Therefore, the annexures to the impugned order fixing intake to each of the petitioners-institutions is kept intact. The rest of the order impugned is quashed as being without the authority of law and beyond the executive power of the State.
57. Rule in made absolute, Parties will bear their own costs.
58. Petitions allowed.