SC rejects scheme framed in `Unnikrishnan case'

NEW DELHI Oct. 31. The Supreme Court today held as "unconstitutional" the scheme framed by the apex court in the "Unnikrishnan's case", viz., fixing "free" and "payment" seats and also the "management" quota while admitting students in educational institutions.

A 11-Judge Bench, headed by the Chief Justice, B.N. Kirpal, in its 317-page order, said the "scheme framed by this court and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional".

However, the Bench said: "The principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet the cost of expansion and augmentation of facilities does not, however, amount to profiteering".

On the question whether the ratio laid down in the St. Stephen's case was correct, the Bench said that "the basic ratio is correct. However, rigid percentage cannot be stipulated. It has to be left to the authorities to prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities".

The Bench did not answer questions whether a linguistic minority in one State could claim a minority status in another State; whether it would be correct to say that only the members of that minority residing in State `A' would be treated as members of the minority vis-a-vis such institution and whether a minority institution could be operationally located.

So far as statutory provisions regulating the facets of administration were concerned, the Bench said that in the case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board had to be complied with.

But, in the matter of day-to-day management, like appointment of staff, and administrative control over them, the Bench said the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and taking disciplinary action had to be evolved by the management itself.

The Bench also said that for redressing the grievances of employees of aided and unaided institutions who were subjected to punishment or termination from service, a mechanism would have to be evolved and appropriate tribunals constituted and till then such tribunals could be presided over by a Judicial officer of the rank of District Judge.

The Bench made it clear that the State or other controlling authorities could always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.

Further, the Bench was of the view that regulations could be framed governing the service conditions for teaching and other staff for whom aid was provided by the state without interfering with the overall administrative control of the management over the staff.

And fees to be charged by unaided institutions could not be regulated but no institution could charge capitation fee, the Bench said.

In his judgment, Justice Quadri said the rights of the minorities under the Constitution were absolute and there could not be any state interference.

Justice Ruma Pal, in her judgment, did not agree with the view that the state or the university could fix a percentage of seats to be filled by the minorities for the non-minority students as that would give room for executive interference and would amount to an encroachment on the rights of the minorities.

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