JUDGMENT 1. - Since issue related to 'University autonomy' is involved in the instant it petition I, at the outset, deem it appropriate to refer to the Report submitted by University Education Commission set up on 4.11.1948 having Dr. S. Radhakrishnan as its Chairman and other renowned educations as its members. In para 29 and 31 of the Report the Commission referred to autonomy in education Thus "University autonomy Freedom of individual development is the basis of democracy. Exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies. In such states institutions of higher learning controlled and managed by Governmental agencies act like mercenaries, promote the political purposes of the State, make them acceptable to an increasing number of their population and supply them with the weapons they need. We must resists, in the interests of our own democracy, the trend towards the Governmental domination of the educational process. Higher education is, undoubtedly, an obligation of the State but State aid is not to be confused with State control over academic policies and practices. Intellectual progress demands the maintenance of the spirit of free inquiry. The pursuit and practice of truth regardless of consequences has been the ambition of universities. Their prayer is that of dying Goethe; 'More Light', or that of Ajax in the must 'Light, though I perish in the light"... ... The respect in which the universities of Great Britain are held is due to freedom from Governmental interference which they enjoy constitutionally and actually. Our universities should be released from the control of politics." (Underlying is mine) 2. Being aggrieved by the Government interference is controlling throughout the country, the admission of the students to technical courses, the petitioner, a deemed university, has approached this Court with the prayer to quash the notification/resolution dated 18.10.2001 issued by the Union of India for providing Common Entrance Examination ('AIEEE') to be conducted by the Central Board of Secondary Education ('CBSE') to get admission in all Engineering Colleges of the country. Further prayer is for quashing the notification dated 6.12.2001, by means of which it has been made mandatory to all the deemed Universities to grant admission only on the basis of selection made through AIEEE. The validity of resolution dated 18.12.2002 is also challenged by virtue of which the CBSE was to conduct AIEEE from 11.5.2003. Further prayer is for quashing the notification dated 6.12.2001, by means of which it has been made mandatory to all the deemed Universities to grant admission only on the basis of selection made through AIEEE. The validity of resolution dated 18.12.2002 is also challenged by virtue of which the CBSE was to conduct AIEEE from 11.5.2003. Validity of the order dated 7.1.2003 has also been challenged whereby the representation of the petitioner seeking exemption from participating in AIEEE for the year 2003, was rejected. 3. As per the facts pleaded in the writ petition, the petitioner was conferred the status of "Deemed University" in the year 1964 under section 3 of University Grants Commission Act, 1956 (for short "UGC Act'). The magazine 'India Today' conducted nationwide survey in 2001 and 2002, which regard to the merit and academic standards of engineering institutions in India, in which the petitioner was ranked as number 3, even higher than most of the as its. In view of this excellence of the petitioner, it has been getting the best students from all over India through its existing admission procedure. For the last more than 30 years the petitioner has been following a system of evaluation of the merits of those students who apply for admission to any of its courses by a system, which is known as the 'normalisation' system. The institution does not merely admit students for its various engineering courses but in addition it also admits students to other non-engineering courses. All admissions are made for 17 different streams of education in the petitioner. For all these courses the eligibility is a pass in the 12th standard examination of any of the recognised boards of the Country. Those who are eligible having passed class 12 examination are not even required to sit for further examination and their class 12 merit is judged for admissions. The aggregate marks obtained by the candidates are normalised by a scientific system of s 'normalisation. This system first finds out from the respective boards the marks secured by topper. All the toppers from different boards obviously constitute the top most students of the country and on the basis of marks of those toppers, the marks secured by the other students are normalised. This system first finds out from the respective boards the marks secured by topper. All the toppers from different boards obviously constitute the top most students of the country and on the basis of marks of those toppers, the marks secured by the other students are normalised. After normalisation, a single merit list is prepared of all the applicants and different courses are allotted to those applicants in the merit list strictly according to their merit and their preference for the 17 different courses. 4. The petitioner averred that this system of normalisation was appreciated by their Lordships of Supreme Court in State of Maharashtra v. Ravindra Kumar Rai, (1999) 2 SCC 48 . This case related to admission to 15 colleges in the State of Maharashtra where admission were permitted to be made on the basis of marks secured in the qualifying examination conducted by different boards. The normalisation process as adopted by the petitioner was appreciated. It was indicated in para No. 9, thus : "Having considered the facts and circumstances of the case and the 20 submissions of the learned counsel, we are of the view that it would be appropriate to permit the State of Maharashtra to proceed with admission to medical/dental colleges in the State for the 1998 academic session in accordance with the system which was being followed by the Government of Maharashtra till now, namely, on the lowed by the Government of Maharashtra till now, namely, on the basis of marks secured in the qualifying examination subject to the condition that for the purpose of making a comparative assessment of the merit of the students who have passed the qualifying examination by different Boards, the State Government shall follow the 30 normalisation process as adopted by the Birla Institute of Science & Technical Education, Pilani for such comparative assessment." (Underling is mine) 5. It is further pleaded that the Peer team constituted by the National Assessment and Accreditation Council (NAAC) set up by the University,ants Commission (for short 'UGC') on examining the system of admission followed by the petitioner made following observations : "The admission process is highly streamlined and admission are given on the basis of merit. The Institute admits students from all over the country and the cut-off percentage is minimum 96 per /to cent normalised for the students who have passed 10+2 examinations. The Institute admits students from all over the country and the cut-off percentage is minimum 96 per /to cent normalised for the students who have passed 10+2 examinations. The entire process is transparent (Underling is mine) 6. The petitioner is aggrieved by the decision arrived at to get admission made in all engineering colleges in the country on the basis of Al .EE conducted by the CBSE from the year 2002. The contention of the petitioner is that the UGC and the All India Council for Technical Education ('A CIE') do not have powers to control admission to the petitioner and it can not be brought into the ambit of AIEEE. 7. In the reply submitted by respondent No. 1 it has been averred that Ur on Government is repository of power to lay down principals, criterion's and policy for the purpose of admission to education courses including Technical Education Courses. Accordingly the policy decision was arrived at under the National Policy on Education 1986, therefore, the order dated 18.10.2001 is beyond the pale of challenge as the Courts can not Interfere with the policy decision affecting large number of persons as the Court do not possess necessary expertise in the matter to substitute its opinion. Nor the policy decision in question suffers from the vice of arbitrariness or unreasonableness so as to warrant any interference by the Court. It is further pleaded that the order dated 6.12.2001 is an order issued by UGC. The petitioner was informed by the UGC by referring to the policy decision taken by Government of India that AIEEE shall be applicable to all the deemed universities. The said communication also refer to Ci. 13 of the UGC guideline of deemed universities which provides for admission to the identical courses for all deemed universities to be made on all India basis through a common entrance test. The order dated 18.12.2002 is an intimation issued by CBSE to petitioner institute informing that the AIEEE will be held on 11.5.2003. This communication is the out-come of the policy decision of Government of India. The letter dated 7.1.2003 is written by respondent No. 1 in response to the petitioner's letter dated 23.12.2002, whereby the petitioner was informed that the matter relating to participation of deemed universities in AIEEE 2003 was discussed in great details by an expert committee, constituted by the Ministry. The letter dated 7.1.2003 is written by respondent No. 1 in response to the petitioner's letter dated 23.12.2002, whereby the petitioner was informed that the matter relating to participation of deemed universities in AIEEE 2003 was discussed in great details by an expert committee, constituted by the Ministry. The Committee gave its recommendations and strongly, opined that participation of deemed universities should be ensured in AIEEE 2003. Based on the recommendations of the expert Committee. UGC has approved that all deemed universities should participate in AIEEE 2003. Thus the petitioner institute was mandated to undertake admissions to the undergraduate programme for the session approaching on the basis of AIEEE 2003. The petitioner was also assured that its unique difficulties and characteristics shall be taken into consideration provided properly conveyed. The Government of India is duly authorised to issue said communication in terms of policy decision and the UGC approval. The insistence of participation in common tests is supported by constitutional provisions and the prevailing law. This is basic to maintenance of standards and not interfering with the autonomy of the institute to decide their teaching learning environment etc. It is further contended that the allegations made by the petitioner are based on misconception and wrong information. The AIEEE does not interfere with the autonomy of the petitioner. Further the petitioner has raised disputed facts which are not admitted by the respondents and which cannot be determined in a writ petition in exercise of extraordinary jurisdiction u/Art. 226 of the Constitution of India. 8. The respondents No. 2, 3 & 4 also submitted independent replies on similar lines and prayed for dismissal of writ petition. 9. During pendency of writ petition on interim order was passed on 30.4.2003 exempting the petitioner from participating in AIEEE 2003. The special appeal against the said interim order was dismissed by the Division Bench on 12.11.2003. 10. Yet another application has been filed by the petitioner seeking exemption from participating AIEEE 2004 and subsequent years. The respondents submitted reply to the application. With the consent of learned counsel for the parties, the matter has been taken up for final disposal. 11. 10. Yet another application has been filed by the petitioner seeking exemption from participating AIEEE 2004 and subsequent years. The respondents submitted reply to the application. With the consent of learned counsel for the parties, the matter has been taken up for final disposal. 11. Shri Shanti Bhushan, learned Senior Advocate appearing for the petitioner after referring in details the system of evaluation of the merits adopted by the petitioner, specifically submitted that this system of admission followed by the petitioner for the last more than 30 years has not been auestioned by the respondents. The petitioner is a reputed educational institution of the Country and it has the right to choose and select the students who can be admitted to their course of studies. Since the petitioner has been admitting students purely on the basis of merit by following the prescribed methodology based on well recognised normalisation of marks obtained from different Boards, it is improper even to impose restrictions on its fundamental right requiring it to admit students only on the basis of results of a common entrance examination held by CBSE for a number of institutions. It is next contended that Section 26(1)(g) r/w Section 14 of UGC Act do not confer any power with the UGC to interfere with the process of admission to c an unaided university like the petitioner which is not receiving any grants from the UGC. Calling in question the interim regulations of 17.12.2003, learned Senior Advocate canvassed that by excluding through these regulations Indian School of Mines (Dhanbad) a deemed University and the Institute of Technology (BHU), a Central University from the applicability of A EEE, gross discrimination has been shown against the petitioner, which has been assessed to have ranking over most of Ills and Institution of Technology (BHU). Learned Senior Advocate took me through various paras T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 and Bharti Vidyapeeth (Deemed University) v. State of Maharashtra, (Civil 20 A )peal No. 7660 of 2002 decided on 26.2.2004) . 12. Per contra, Shri Vijay Bahuguna, learned Senior Advocate appearing for the respondent AICTE, raised preliminary objection in regard to maintainability of the writ petition. It is contended that there is no challenge to the notification 17.12.2003 and without amending the writ petition no relief 25 can be granted to the petitioner institute in regard to the said notification. 12. Per contra, Shri Vijay Bahuguna, learned Senior Advocate appearing for the respondent AICTE, raised preliminary objection in regard to maintainability of the writ petition. It is contended that there is no challenge to the notification 17.12.2003 and without amending the writ petition no relief 25 can be granted to the petitioner institute in regard to the said notification. It is further submitted that All India Council for Technical Education Act, 1987 (for short 'AICTE Act') was enacted for a proper planning and coordinative development of the Technical Education system throughout the country and for the promotion of qualitative improvements of such education. The Petitioner was given the status of a deemed university by the UGC as per the prescribed guidelines. Clause 13 of the said guidelines provides that admission shall be made on All India basis to the identical courses in all the deemed universities through a Common Entrance Test conducted either by the UGC or by an Institution or Agency identified and approved by the UGC.This shall apply also to those institutions which have already been given the deemed university status. The petitioner is therefore bound by the said guidelines. It is next contended that UGC Act and AICTE Act falls under Entry 6E, of List I and entry 25 of List 3 of the 7th Schedule of the Constitution and as such if the provisions of State Act are in conflict or inconsistent with the Central Act the State Act shall be void, Reliance is placed on State of Tamil Nadu v. Ahiyaman Education & Research Institution, (1995) 4 SCC 104 , and Jaya Gokul Education Trust v. Commissioner Higher Education, (2000) 5 SCC 231 . It is further contended that UGC Act and AICTE Act had been enacted in the purported exercise of powers under entry 66 of List 1 of 45 WI 7th Schedule of the Constitution of India for coordination and determination of standards in Institution for Higher Education or Research ai I Technical Institution with aim of coordination and determination of standards among a particular class or category of institutions which may deal with different kinds of education and research as also Scientific and so Ti finical Institutions of different disciplines and specialised branches. It is fur her contended that Constitutional Bench of the Apex Court in T.M.A. Pai Foundation v. State of Karnataka , (supra) considered the scope of Article 29 & 30 of the Constitution and the right of minority institution to establish and administer institution as per the policy pertaining to admission and recruitment of the teaching staff. The said judgment was clarified in Islamic Academic of Education v. State of Karnataka, (2003) 6 SCC 697 . It is further urged that the petitioner has failed to establish its legal right to admit students on his past practice and further failed to show any prejudice which is being caused to the petitioner by participating in the AIEEE test conducted by the CBSE. Summing up the contentions, learned counsel urged that it is the National Education Policy of the Government of India to have a uniform entrance examination throughout the country so that the students from all regional languages and classes may get equal opportunity in seeking admission to reputed engineering colleges situated in the country. Shri Bharat Vyas and Shri R.P. Singh, learned counsel also supported the contentions advanced by the learned Senior Advocate. 13. I first take up the preliminary objections in regard to maintainability of the writ petition. It is contended on behalf of the respondents that since the basic principles of pleading have not been followed by the petitioner, no relief can be granted to it. The petitioner cannot claim any relief by moving a misc. application, without amending the writ petition or filing a fresh writ petition impugning the legality of the order dated 17.12.2003 and 19.12.2003. 14. Having carefully scanned the contents of the writ petition and the prayer made in the misc. application, I do not find much force in the preliminary objections. Article 226 covers a much wider ground and jurisdiction. High Court while hearing a petition u/Art. 226 should keep in mind the interests of justice as paramount and appropriate relief may be granted even if the petitioner has not asked for it or has asked for a wrong relief. Petition u/Art. 226 will not be thrown out on the ground that no proper writ or direction has been prayed for. Petition u/Art. 226 will not be thrown out on the ground that no proper writ or direction has been prayed for. Since orders dated 17.12.2003 and 30 19.12.2003 relate to the controversy raised in the writ petition, I am of the view, that the same may be considered even without making amendment in the writ petition. The preliminary objection, therefore, needs to be rejected. 15. That takes me to the core question as to whether the UGC and AICTE have power to prescribe the AIEEE for the admission to the petitioner institute which is a Deemed University as defined in Section 3 of UGC Act. 16. Indisputably the petitioner institute does not get any aid either from the Government or from the UGC and it is unaided University. While considering the constitutional rights of an unaided institution with regard to its courses, the Constitution Bench, comprising of eleven Hon'ble Judges of the Supreme Court in TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 laid down following principles (i) The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. (ii) Establishment and running of educational institution is a fundamental right of every person including members of majority community u/Art. 19(i)(g) of the Constitution but reasonable restriction under Article 19(6) can be imposed on the exercise of such fundamental right. (iii) The right of establish an educational institution can be regulated but such regulatory measures must. in general, be to ensure the maintenance of proper academic standards. atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those incharge of management. The fixing of rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating student for admissions would be unacceptable restrictions. (iv) Appropriate Regulations can be made to require unaided professional institutions to admit the students on the basis of merit so that meritorious candidates are not unfairly treated or put to 10 disadvantage by preferences shown to less meritorious but less influential students. (iv) Appropriate Regulations can be made to require unaided professional institutions to admit the students on the basis of merit so that meritorious candidates are not unfairly treated or put to 10 disadvantage by preferences shown to less meritorious but less influential students. (v) Merit for admission to professional and higher educational colleges by either the marks that the student obtains at the qualifying examination or school leaving certificate test conducted by the 15 institution or in the case of professional colleges by the Government agencies. (vi) While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction, u/Art. 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are 25 required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. however, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons. 17. Adverting to the UGC Act, I find that it provides for various aspects which need to be noticed. 18. According to Section 3 of the Central Government may, on the advice c the Commission, declare, by notification in the Official Gazette, that any situation for the purpose of this Act, and on such a declaration being made,a I the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of Section 2. 19. Section 12 relates to powers and functions of UGC under which it shall be the duty of UGC to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and 40 co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in universities and for the purpose of performing its functions under the Act. It may have other powers, including power to establish, in accordance with the regulations made under the Act, institutions for providing common facilities, 45 services and programmes for a group of universities or for the universities in general and maintain such institutions or provide for their maintenance by allocating and disbursing out of the fund of the Commission such grants as We Commission may deem necessary. 20. Section 14 provides for the consequences of the failures of universities to comply with regulations u/Cl. (e), (f) or (g) of the Section 26 and if which regulations framed under 26(g) are violated by the University, UGC may with hold from the said University the grants proposed to be made out of the Fund of the Commission. This alongwith the regulations, contemplated by R.26(1)(g) can only relate to those institutions receiving grants from the UGC. 21. Section 20(1) provides that in the discharge of its function under this Act, the commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government. 22. Section 25(1) provides that the Central Government may, by notification in the Official Gazette, make rules to carry out of the purposes of this Act. 23. According to Section 26(1) the Commission may, by notification in the Official Gazette, make regulations consistent with this Act and the Rules made thereunder to regulate the maintenance of standards and the co-ordination of work or facilities in University (Sec. 26(1)(g) and further to 15 regulate the establishment of institutions referred to in clause ccc of Section 12 and other matters relating to such institutions. [Section 26(1)(h)].Section 26(2) provides that no Regulation shall be made u/Cl. a, b, c, d, h, or j of sub-section (1) except with the previous approval of the Central Government. 24. Coming to the AICTE Act. I find that it was enacted by the Parliament for a proper planning and coordinate development of the technical education system throughout the country and for the promotion of qualitative improvements of such education in relation to plaint quantitative growth and the regulation and proper maintenance of norms and standard in the Technical education system and for matter connected therewith. 25. 25. Section 2(h) defines technical, which means an institution not being a University which offers courses or programmes of technical education and shall include such other institutions as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare as technical institutions. 26. As per Section 2(i) the University means a University defined u/CI.(f) of Section 2 of the UGC Act, 1956 and includes an institution deemed to be a University under section 3 of that Act. 27. According to Section 10 it shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical and management education and maintenance of standards and for the proposes of performing its function under this Act, the Council may : (a)..... (b) Coordinate the development of technical education in the country at all levels; (c)..... (d)..... (e)..... (f)..... (g)..... (h)..... (i)..... (j)..... (k) grant approval for starting new technical institution and for introduction of new courses of programmes in consultation with the agencies concerned. (I)..... (m)..... (n)..... (o) provides guidelines for admission of students to technical institutions and Universities imparting technical education. 28. The UGC has framed guidelines for considering proposal for declaring an institution as deemed to be University under section 3 of the UGC Act. The petitioner was given the status of a deemed University by the UGC as per the prescribed guidelines. Clause 13 of the said Act provides that admission shall be made on All India basis to the identical courses in all the to deemed Universities through a common entrance test conducted either by the UGC or by an Institution/Agency identified and approved by the UGC. This shall apply also to those institutions which have already been given the deemed to be university status. 29. This shall apply also to those institutions which have already been given the deemed to be university status. 29. Section 3 of UGC Act was taken into consideration by their Lordships of the Supreme Court in Bharti Vidyapeeth's case (supra) and it was indicated as under "Under Section 3 of the Act, deemed University status will be given to those institutions That for historical reasons or for any other circumstances are not universities and yet are doing work of a high standard in specialised academic field compared to a university and that granting of a university status would enable them to further contribute to the course of higher education which would mutually enrich the institution and the university system. Guidelines for considering proposals for declaring an institution as deemed to be 25 university were also issued by the UGC. Under the said guidelines aspects relating to admission was specifically entrusted with the UGC and admission could be made only through a common entrance test on All India basis. Such an exercise was intended to maintain a uniform standard and level of excellence. As we have pointed out, admission 30 plays a crucial role in maintenance of the high quality education. And for the proper maintenance of academic excellence, as intended by the UGC Act, admissions to deemed university has to be made under the control of UGC. This further goes to show that admission procedure to a deemed to be university is fully occupied by Entry 66 of List I and the State cannot exercise any powers over admission procedure. 30. In regard to argument that the UGC Act is only for the purpose of making grants to various institutions governed by it, Hon'ble Apex Court in Bharti Vidyapeeth's case propound that : "Such institutions are recognised or granted deemed status for the maintenance of the standard in the institution and for co-ordinating the teaching in universities which is a higher purpose than merely giving grants and with that object, the enactment is made. We do not think it could be confined only to making of grants..." 31. Pursuant to the judgment rendered by the Hon'ble Apex Court in 45 TMA Pai's case the UGC made Interim Regulations for admission to Specified professional programmes in the country during the year 2004-2005. Regulation 3 provides thus : 3. We do not think it could be confined only to making of grants..." 31. Pursuant to the judgment rendered by the Hon'ble Apex Court in 45 TMA Pai's case the UGC made Interim Regulations for admission to Specified professional programmes in the country during the year 2004-2005. Regulation 3 provides thus : 3. Common Entrance Examination(s) The admissions to specified professional programmes in the country so for the year 2004-2005 shall be made on the basis of merit determined through common entrance examination(s) as enumerated below : 3.1. All India Common Entrance Examination (s) These examinations shall be for all the institutions that are presently admitting all their students or certain percentage of them on All India basis. 3.1.1 Entrance Examination for admissions to undergraduate programmes in Engineering, Architecture & Planning and Pharmacy Admissions on All India basis to the undergraduate programmes in Engineering, Architecture & Planning and Pharmacy in all Institutions in the country shall be made through an All India Engineering, Architecture & Planning and Pharmacy Entrance Examination (AIEEE) conducted by the Central Board of Secondary Education (CBSE). The AIEEE shall, however, not be applicable for admissions to Indian Institute of Technologies, Indian Schools of Mines (Dhanbad) and Institute of Technology (Banaras Hindu University) that are admitting students on the basis of Joint Entrance Examination conducted by the Indian Institute of Technologies." (Underlining is mine) 32. With a view to consider the request to exclusion of deemed universities and the other institutions from AIEEE 2003 the Minister of Human Resource Development Government of India had constituted a Committee 20 under Chairmanship of Chairman, UGC vide order dated 222.2003. Representation for exclusion received from the petitioner was placed before the Committee. The Committee submitted its report thus : "Birla Institute of Technology & Science (BITS), Pilani has sought exclusion from AIEEE on the ground that they find no advantage in abandoning 30 years old practice of admitting students through normalised percentage of Board marks. Further, BITS-Pilani has stated that since they are ranked higher than some of the IITs they should be clubbed with IIT Entrance Exam-JEE rather than AIEEE that has lower standards. BITS Pilani also suggested creation of an autonomous National Testing Service conducting SAT type examination (as in the US) 3-4 times a year. Further, BITS-Pilani has stated that since they are ranked higher than some of the IITs they should be clubbed with IIT Entrance Exam-JEE rather than AIEEE that has lower standards. BITS Pilani also suggested creation of an autonomous National Testing Service conducting SAT type examination (as in the US) 3-4 times a year. The Committee also took not of representation received from group of alumni of the Institute against normalization procedure followed by the Institute that favour ⅔ State Boards. Taking into consideration the arguments placed by the Institute representation from the alumni group and the UGC guideline for admission in deemed universities, the Committee did not favour exclusion BITs Pilani from AIEEE 2003." The said report of the Committee was accepted by the Government of India and the decision was communicated to petitioner institute vide letter dated 17.4.2003. 33. At this juncture reference may be made to U.P. Public Service Commission v. Subhash Chandra Dixit, JT 2003(8) SC 531 , wherein it was indicated that the scaling system adopted with a view to eliminate the inconsistency in the making standards of the examiners, cannot be termed as as arbitrary. 34. It is contended on behalf of the respondents that Programme of Action (POA) 1992 prepared under the National Policy of Education (NPE) 1986 envisaged conduct of common entrance examination on All India basis for admission to professional and technical programme in the country. Earlier so a number of tests were conducted for entrance to such courses and programmes. Multiplicity of such tests caused a lot of mental and financial burden on students and their parents without adding any value to the system. Section 10(o) of the AICTE Act, 1987, provides guidelines for admission of 1 students to technical institutions and universities imparting technical education. Under the guidelines for deemed universities under section 3 of the UGC Act, 1956 admission to the identical courses in all deemed universities was also required to be made on all India basis through a common entrance test Taking these into consideration it had been decided to organise an AIEEE. 35. The Constitution envisages the establishment of a Welfare State at tie federal level as well as the state level. In a Welfare State the primary duty of the Government is to secure welfare of the people. Policy formation and articulation, or change therein is a prerogative of the Executive-the to Government. 35. The Constitution envisages the establishment of a Welfare State at tie federal level as well as the state level. In a Welfare State the primary duty of the Government is to secure welfare of the people. Policy formation and articulation, or change therein is a prerogative of the Executive-the to Government. The legislative sanction in respect of the policy and and for its implementation are presumed in regular exercise of executive power by the constitutional Government, and its continuing responsibility to the Legislature. In State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 17 , it was indicated by the Apex Court that "It is not normally within the domain of any Court to weigh the pros and cons of the policy or to scrutinise it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provisions of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if Court is based on expert opinion. It would be dangerous if Court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out an affidavits. The Court would dissuades itself from entering into this realm which belong to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints." 36. Salient features of the case as noticed above, may be summarised thus : (i) The normalisation process as adopted by the petitioner institute to admit students was appreciated by the Apex Court in State of Maharashtra v. Ravindra Kumar Rai (supra). (ii) In nation wide survey conducted in 2001 and 2002 with regard to the merit and academic standards of Engineering Institutions in India, the petitioner Institute was ranked as number 3, even higher than most of the IITs. (iii) The Peer team constituted by NAAC which had been set up by the UGC appreciated the system of admission followed by the petitioner institute and observed that the entire process is transparent. (iii) The Peer team constituted by NAAC which had been set up by the UGC appreciated the system of admission followed by the petitioner institute and observed that the entire process is transparent. (iv) Merits of the admission procedure adopted by the petitioner institute is not under challenge in the instant writ petition. (v) Constitution Bench of the Apex Court propounded that establishment and running of an educational institution must necessarily be regarded as an occupation and every person has a fundamental right u/Art. 19(1)(g) to establish and run educational institution but reasonable restriction u/Art. 19(6) can be imposed on the exercise of such right. (vi) Regulations can be made to require unaided professional institution to admit the students on the basis of merit. The ultimate decision to grant admission to the students qualified for admission must be left within the educational institution. However,r when the institution rejects the student, such rejection should not be whimsical or for extraneous reasons (vii) The petitioner institute was given the status of a deemed university by the UGC under section 3 of the UGC Act. (viii) The status of deemed university granted to an institution is not confined a making of grants, but such institution is recognised for a higher purpose of maintenance of the standard in the institution and for coordinating the teaching in universities. (ix) The AIEEE conducted by CBSE shall not be applicable for admission to Indian Institute of Technologies, Indian School of Mines (Dhanbad) and Institute of Technology (Banaras Hindu University) that are admitting students on the basis of Joint Entrance Examination conducted by the Indian Institute of Technologies. 37. Having brooded over the rival submissions, I find that the education policy of the Union of India in making applicable to AIEEE for admission to professional and technical courses, to all the institutions of the country except Indian Institute of Technologies. India School of Mines (Dhanbad) and 20 Institute of Technology (Banaras Hindu University is discriminatory and violative of Article 14 of the Constitution. The UGC in framing Regulation 3.1.1 for admission of undergraduate programmes in Engineering, has shown gross discrimination against the petitioner institute which has been assessed to have ranking over most of the ITTs including the Institute of Technology (Banaras Hindu University). The UGC in framing Regulation 3.1.1 for admission of undergraduate programmes in Engineering, has shown gross discrimination against the petitioner institute which has been assessed to have ranking over most of the ITTs including the Institute of Technology (Banaras Hindu University). I would have dissuaded myself from weighing the pros and cons of this education policy but looking to its unfairness I find it a fit case for judicial interference. The petitioner institute is established and run under the constitutional right guaranteed by Article 19(1)(g) and reasonable restrictions can be imposed u/Art.19(6) on the exercise of such right. While the petitioner institute cannot grant admission on its own whims and fancies and must follow some identifiable or reasonable methodology of admitting the students, any scheme. rule or regulation that does not give the institute the right to reject candidates who might otherwise be qualified according to their performance in an entrance test, would be an unreasonable restriction u/Art.19(6), though appropriate guidelines can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the petitioner institute but such rejection must not be whimsical or for extraneous reasons. In my considered view the petitioner institute which is an unaided institution is entitled to autonomy in its administration while at the same time, it cannot discard the principles of merit. 38. The Committee headed by the Chairman UGC, constituted with a view to consider the request for exclusion of deemed universities from AIEEE, did not properly consider the representation for exclusion of the petitioner institution institute which is ranked higher than some of the IITs. The petitioner could be clubbed with IIT Entrance Examination-JEE rather than AIEEE that has lower standards. I do not see any good reason to direct the petitioner to so abandon 30 years old practice of admitting students through normalised percentage of Board Marks, the practice which has been appreciated by the Supreme Court in State of Maharashtra v. Ravindra Kumar Rai (supra). 39. I do not see any good reason to direct the petitioner to so abandon 30 years old practice of admitting students through normalised percentage of Board Marks, the practice which has been appreciated by the Supreme Court in State of Maharashtra v. Ravindra Kumar Rai (supra). 39. For these reasons, I allow the writ petition and direct that notifications dated 18.10.2001 and 6.12.2001 as well as Interim Regulations dated 17.12.2003, made by the UGC for admission to specified professional programmes in the country during the respondents from enforcing their instructions for bringing the petitioner institute within the stream of the AIEEE 5 2004 and subsequent years and interfering in the admission process of the petitioner institute. Their shall be no order as to costs. *******