JUDGMENT S. PANDA, J. : WP(C) No.14302 of 2011 has been filed by the Orissa Private Engineering College Association (in short, “OPECA”) seeking a direction to the opposite parties to reserve 15% seats of the total approved intake capacity of the members-institutions of the petitioner-association for Non Resident Indian (NRI) Quota for the academic session 2011-2012 as well as for the ensuing academic year in respect of the admissions of the students into four years Degree Engineering (B. Tech) & MCA Courses. WP(C) No.10874 of 2012 has been filed by Silicon Institute of Technology seeking similar reliefs and also challenging the Information Bulletin for the session 2012 where the opposite parties have reduced the NRI Quota from 15% to 5% intake capacity. WP(C) No.11154 of 2012 has been filed by the OPECA along with three other un-aided Private Professional Institutions, who are imparting B. Tech, M.C.A. and M.B.A. Courses seeking similar reliefs. 2.Since common questions are involved in these writ petitions, they were heard together and are being disposed of by this common judgment. The petitioner-institutions have been duly established at various locations within the State of Odisha to cater the aforesaid courses being approved by the State Government, All India Council for Technical Education (AICTE) and affiliated to concerned University, namely, Biju Pattnaik University of Technology (BPUT) after its establishment. The system of setting apart certain percentage of seats (designated as NRI Seats) was started subsequent to the decisions of the apex Court and considering the needs and importance of the private professional institutions in catering higher technical education. The said principles have been concurred by the apex Court also. Thereafter, AICTE consequent upon the judgment of the apex Court delivered on 31.10.2002 by the Eleven Judges Bench of the apex Court in the case of T.M.A. Pai Foundation v. State of Karnataka and others, (2002) 8 SCC 481 changed its Regulations/Guidelines vide its Interim Policy Regulations notified on 7.3.2003 in exercise of its power conferred under Section 23 read with Sections 10(b), 10(j) & 10(o) of the AICTE Act in respect of Admission, Management Seats & Fees which are as under : (1) Admission : As per the said Interim Policy Regulations, the management of the technical institutions, minority and non-minority shall follow some identifiable or reasonable methodology of admitting students as held by the Supreme Court. The Supreme Court also held that excellence in professional education would require greater emphasis on merit of students seeking admission and appropriate Regulations for the purpose may be made. For professional and technical colleges, the merit is usually determined by common entrance test conducted by Government agencies. In the matter of admission into technical programmes, the merit of the students shall be the criterion by holding entrance test in a fair manner. The Management of private unaided institutions would require to devise a mechanism of transparent admission process for admitting meritorious students under the management seats which can best be done by adopting the mechanism as may be prescribed by the concerned State Government in order to reduce the multiplicity of admission test in the interest of students and the society as a whole. It has accordingly been decided that in order to facilitate admissions into various private unaided institutions in the country, whether minority or non-minority, the AICTE approved institutions must necessarily join the Central or the State’s Common Admission Test ensuring a transparent admission process. All the seats including the seats reserved for the management must be filled up through Joint Entrance Test/Common Entrance Test conducted by Central/State Government or University followed by counselling as per present practice. However, the private unaided institutions may fill up the management seats by having their own counselling in an objective and transparent manner taking the students from same merit list prepared on the basis of Joint Entrance Test/Common Entrance Test of Central/State Government. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by rules or regulations, the reasonable conditions on the basis of which admission will be granted......... For all such admissions the minimum eligibility criteria under management or otherwise must be in accordance with the existing Regulations and Guidelines of AICTE. (2) Management Seats : The State Governments are required to prescribe a certain percentage of seats, which can be reserved for admission by the management of technical institutions. The prescription of percentage has to be made by the State Government in accordance with the local needs and different percentage can be fixed for minority and non-minority technical institutions........However, the maximum limit of percentage of management seats shall not exceed 15% of sanctioned intake, in case of non-minority technical institutions. The prescription of percentage has to be made by the State Government in accordance with the local needs and different percentage can be fixed for minority and non-minority technical institutions........However, the maximum limit of percentage of management seats shall not exceed 15% of sanctioned intake, in case of non-minority technical institutions. In the event of the 15% management seats not being filled up the vacant seats may be reverted back to general seats to be filled up through State Counselling along with other candidates....... (3) Fees : The Education is, in a sense, regarded as charitable, the Government can provide Regulation that will ensure excellence of education, while forbidding profitteering by the institution. Since the object of setting up an educational institution is by definition “charitable”, it is clear that an educational institution cannot change such a fee as is not required for the purpose of fulfilling the object ....... The institution are required to continuously upgrade their infrastructural facilities for achieving excellence, which can be done by inducting better teachers and better working environment with infusion of additional funds by the institutes. The resource generation for the purpose can be possible through Consultancy Projects at institutional level and similar activities under the initiatives of faculty members. The institutions should not pass on the entire burden of their investments onto the students by way of charging heavy fees. The revenue generation through fees should be mainly utilized for running expenditure of the institutes... The State Government may decide a uniform fee structure to be made applicable to all the students including those of management seats for the current academic year through its Fee Committee comprising members etc. Keeping in view the above and specifically in view of the decision of the apex Court in the case of P.A. Inamdar and others v. State of Maharashtra and others reported in AIR 2005 SC 3226 , the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (in short, “2007 Act”) was enacted for regulation of admission, fixation of fees, prohibition of capitation fees etc. Section 9 of the 2007 Act deals with NRI Quota. The vires and validity of the 2007 Act was assailed. Section 9 of the 2007 Act deals with NRI Quota. The vires and validity of the 2007 Act was assailed. However, the matter is pending before the apex Court in Civil Appeal No.2873 of 2007 and by in interim order of the apex Court, the operation of the provisions of Sections 4(1), 4(2), 4(4), 6(1), 6(2) and 6(3) of the 2007 Act was stayed and other provisions of the Act was directed to be continued in force. Accordingly, from the year 2007, the OJEE and its authorities till last academic year 2010-2011 keeping in view of Section 9 of 2007 Act had determined the reservation category for NRI seats in respect of private professional educational institutions not to exceed 15% of the approved intake under the NRI Quota and those quota shall be filled up from the merit list prepared by the OJEE. In the academic session 2011-2012 as per the recommendation of the Policy Planning Body (PPB), the State Government by its order dated 22nd December, 2011 allowed the institutions to fill up NRI Quota seats at their college level counselling under the supervision of the OJEE-2011 Committee to the tune of 10% from OJEE/AIEEE/CAT, MAT/XAT merit list, as the case may be, under the supervision of the OJEE-2011 Committee subject to the condition that the Government relaxations to the above effect is extended for the academic session 2011-2012 only and this shall not be cited as a precedence in future. The AICTE has framed All India Council for Technical Education (Grant of Approval for Technical Institutions) Regulations, 2011 (hereinafter referred to as “the Regulation, 2011”) regarding grant of approval for starting of new technical institutions, introduction of courses or programmes and extension of approval for the existing technical institutions. The said Regulation, 2011 came into force with effect from 10.12.2010. However, Regulation, 2011 does not contain any provision with regard to allocation of percentage of seats for NRI Quota. The AICTE in exercise of their executive powers and domain issued the “Approval Process Hand Book 2012-2013” prescribing therein the guidelines detailing the admission process for sons and daughters of NRIs. Clause 13.1(b) thereof stipulates that 5% seats within sanctioned intake is provided for NRI category. The AICTE in exercise of their executive powers and domain issued the “Approval Process Hand Book 2012-2013” prescribing therein the guidelines detailing the admission process for sons and daughters of NRIs. Clause 13.1(b) thereof stipulates that 5% seats within sanctioned intake is provided for NRI category. In view of the said stipulation, the Information Broacher issued by OJEE curtailed the NRI quota seats from 15% to 5% ignoring the recommendation made by the Policy Planning Body in its meeting dated 2.1.2012. The petitioners-association this year also represented before the State Government to allow 15% seats of the approved intake for NRI Quota. However, since no action had been taken by the opposite parties, the petitioners have approached this Court. 3.Learned counsel for the petitioners submitted that in view of Interim Policy Regulation, 2003, on issue of management seats the State Government are required to prescribe a certain percentage of seats which can be reserved for admission by the management of the technical institution till Central Act came into operation or enacted. After the decision of the apex Court in 2005, the State Government has enacted 2007 Act. Accordingly, in the said Act, the maximum limit of percentage of management seats cannot exceed 15% of the sanctioned intake and in case the management seats are not filled up, the vacant seats may be reverted back to the general seats through State Counselling along with other candidates. The Interim Regulation of 2003 in respect of management has not been superseded by AICTE by any fresh Regulation nor AICTE Approval Process Hand Book of 2012-2013 can supersede the statutory Regulations. Therefore, the Regulations 2010 and 2011 cannot govern the field and in those two Regulations nothing has been stated regarding management seats or NRI quota seats. The AICTE published the Approval Process Hand Book 2012-2013 detailing the procedure to process the application of the institutions or promoters. The said Hand Book is only a procedure for making applications and neither substantive rules nor regulations cannot prescribe a quota for NRI, which is contrary to their own Regulations made in 2003 and contrary to the judgment of the apex Court in P.A. Inamdar and others v. State of Maharashtra and others reported in AIR 2005 SC 3226 and contrary to the State Act, 2007. He further submitted that the State Act, 2007 is holding the field and is not superseded by any other Central Statutes or Rules or Regulations. Therefore, the State Government in the preceding year decided on 22.12.2011 to fill up 10% vacant seats as per the recommendations of the PPB and allow institutions to admit the students taking from OJEE/AIEEE/CAT,MAT/XAT merit list, as the case may be, under the supervision of the OJEE-2011 Committee subject to conditions. Therefore, this year also the petitioners-institutions may be allowed to admit the students since the academic sessions have already started. 4.Learned counsel for the opposite parties, however, submitted that last year the matter was pending before this Court. Therefore, at a belated stage the State Government has decided to allow the institutions to admit the students. However, the same shall not be considered as a precedent. 5.A counter affidavit has been filed by the State Government taking a stand that AICTE is the apex body. The Approval Process Hand Book contains that 5% seats within the sanctioned intake is provided for NRI category for admitting sons and daughters of NRI(s). Accordingly, the State Government in a judicious manner has fixed 5% seats under NRI Quota following the provisions of the State Act and guidelines of the AICTE. The Orissa Joint Entrance Examination-2012, opposite party No.3, has filed its counter affidavit taking similar stand and stated that on the recommendation of the Policy Planning Body vide resolution dated 2.1.2012 for keeping 15% seats reserved for NRI category is contrary to the provision contained in the AICTE Approval Process Hand Book 2012-2013. Since the State Government has accepted the recommendation of the PPB, the Information Broacher was issued by the AICTE in its Approval Process Hand Book. The Biju Patnaik University of Technology, opposite party No.4, has also filed its counter affidavit taking the similar stand. The All India Council for Technical Education, opposite party No.5 has also filed a counter affidavit taking a stand that AICTE framed the All India Council of Technical Education (grants of approvals for technical institutions) Regulations, 2010, which came into force with effect from 6.2.2010. In supersession of such Regulation, 2010, AICTE framed the latest regulation called the All India Council of Technical Education (grants of approvals for technical institutions) Regulations, 2011 which came into force with effect from 10.12.2010. In supersession of such Regulation, 2010, AICTE framed the latest regulation called the All India Council of Technical Education (grants of approvals for technical institutions) Regulations, 2011 which came into force with effect from 10.12.2010. Soon after the regulation came into force, it was widely circulated to all the Secretaries of the concerned Branch functioning under all the State Governments and Union Territories as well as all the Regional Branches of AICTE throughout the country and was made available in the web-portal of AICTE immediately. As per the said regulation, the reservation quota for TFW (Tuition Fee Waiver) category was confined to 5% of the sanctioned intake per course which are supernumerary in nature. PIO (Persons of India Origin) was confined up to 15% of intake seat per course which are also included upper supernumerary quota and NRI (Non Resident Indian) category was confined to only 5% within the sanctioned intake of all AICTE Approved Technical Institutions as per Approval Process Hand Book 2012-2013. The Approval Process Hand Book is detailing the procedure to process the applications of the institutions. It provides that Council shall publish, from time to time, Approval Process Hand Book, detailing the procedure to process the applications of Institutions and/or Promoters. Since these reservations have been provided in the AICTE Regulations, the Interim Policy Regulations dated 7.3.2003 merges with these Regulations in view of paragraph-03 under the heading “Background” which are as follows : “The revision of AICTE Regulations in respect of fees and admission is under consideration and till such time the same are amended, the following Interim Regulations shall apply, in supersession of existing provisions as given below.” Therefore, the Interim Policy Regulation, 2003 finally merges with AICTE Regulations of 2010 and 2011.. Fixing the percentage of NRI quota at 5% was not a sudden decision and it does not violate Article 14, 19, 21, 39(a) and 41 of the Constitution of India. It was further contended that none of the Technical Institutions whosoever have applied to AICTE for Grant of Approval for the academic session 2012-2013 have ever submitted any proposal for TFW/PIO/NRI seats as have been specifically provided in the AICTE Regulation, 2011 read with Approval Process Hand Book, 2012-2013. Therefore, the grant of allocation of any NRI seats does not arise at all. Therefore, the grant of allocation of any NRI seats does not arise at all. 6.On the averments of the writ petitions and the counter affidavit filed by the opposite parties, the issue involved in these writ petitions is whether the petitioners-institutions are to fill up 10% approved seats from the merit list as provided under Section 9(3) of the 2007 Act or 5% of seats under the heading of NRI Quota as stipulated in the Approval Process Hand Book 2012-2013 issued by the AICTE. 7.Admittedly, none of the institutions have applied to the AICTE regarding 5% of NRI seats with requisite fees as provided in the said Hand Book 2012-2013. Therefore, it is now to be considered whether the institutions can fill up 10% of the approved intake seats in view of 2003 Interim Regulation issued by the AICTE or not ? 8.In the case of P.A. Inamdar and others v. State of Maharashtra and others reported in AIR 2005 Supreme Court 3226 the apex Court formulated the issues regarding fixation of quota of admission in respect of unaided professional institution to hold examination of admission to such colleges and who will hold the entrance test and the fee structure. While answering the above issue it was held by the apex Court that the State have no power to insist of seat sharing in the unaided private professional educational institution by fixing a quota of seat between the management and the State. The State cannot insist on private educational institution which received no aid from the State to implement State policy on reservation for mark admission on lesser percentage of mark, i.e., on any criteria except merit..............Merely because the resources of the State in profiteering professional educational institution which intend to provide better professional education cannot be forced by the State to make admission available on the basis of reservation policy to less meritorious candidate. Unaided institution as they are not deriving any aid from State Funds, can have their own admissions if fair, transparent, non-exploitative and based on merit. In the said decision it was also discussed regarding N.R.I. seats which are as follows : “Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians (‘NRI’, for short) or NRI seats. In the said decision it was also discussed regarding N.R.I. seats which are as follows : “Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians (‘NRI’, for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term ‘NRI’ in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which thy would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well defined criteria, the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, will be for the Committees constituted pursuant to Islamic Academic’s direction to regulate.” It was further held that common entrance test is necessary in the interest of achieving twin object of transparency and merits. It is also necessary to save the student community from harassment and exploitation and holding of such common entrance test followed by centralized counseling or in other wards single window system regularising admission. Fee structure is subject to limitation that there can be no profiterring and no capitation fee can be charged directly or indirectly or in any form capitation fee cannot be permitted to charge and no seat can be permitted to be appropriate by payment of capitation fee. ‘Profession’ has to be distinguished from business or a mere ‘occupation’. While in business, and to a certain extent in occupation, there is a profit motive profession is primarily a service to society wherein earning is secondary or incidental. After the pronouncement of the above decision, the 2007 Act was enacted in the State of Orissa and the Policy Planning Body and Fee Structure Committee are functioning who recommended the policy to be followed in respect of admission to the professional course in the unaided private educational institution and also the Fee Structure Committee fixed the fee for a period of 3 years. 9.Section 9 of 2007 Act also stipulates regarding N.R.I. seats. For better appreciation Section-9 of the said Act is extracted hereunder. “9(1) In every professional educational institution admissions shall be in accordance with the reservation policy of the Government notified for the purpose of this Act : Provided that nothing in this Sub-section shall be applicable to the minority institutions. (2) In a private professional educational institution other than minority institution not exceeding fifteen per centum of the approved intake may be filled up by NRI from the merit list prepared on the basis of JEE. (2) In a private professional educational institution other than minority institution not exceeding fifteen per centum of the approved intake may be filled up by NRI from the merit list prepared on the basis of JEE. (3) Where any shortfall in filling up of seats from NRI occurs, such vacant seats may be filled up from the merit list of All India Engineering Entrance Examination or All India Medical Entrance Examination, as the case may be, conducted by Central Board of Secondary Education : Provided that while filling up such vacant seats NRI shall be preferred. (4)xxxxxxxxx (5)xxxxxxxxx (6)xxxxxxxxx (7)xxxxxxxxx” The Act 2007 has also enacted taking into consideration the apex Court’s decision and the Interim Regulation, 2003. 10.Taking into consideration various aspects, the Fee Structure Committee fixed the fee structure for private unaided professional/educational college institution in the academic session 2007-08 and the same was revised periodically in three years. The revised fee structure made on 20th September, 2010 is as follows : “The fee structure for seat under N.R.I. quota will be four times than he regular fee structure.” 11.In the Writ Appeal No.276 of 2012 disposed of on 17.8.2012, a Division Bench of this Court held that 15% of N.R.I. quota seat shall be filled up by holding further counseling from the candidates remaining in the waiting list in OJEE 2012 by the petitioner-institution. In the said decision, the Division Bench has also taken into consideration the decision of the Apex Court in Modern Dental College and Research Centre and others reported in 2012 (4) SCC 707 . 12.It is not in dispute at the bar that the apex Court in P.A. Inamdar’s case (supra) has held that the term ‘NRI’ in relation to admissions is a misonmer. By and large, it was noticed that after cases coming to the Court, neither the students who got such benefit under that category nor their parents were NRIs. In effect and reality, under that category, less meritorious students, who afforded more money were getting admission. The apex Court further held that seats not exceeding 15% may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only for their children or wards. The apex Court further held that seats not exceeding 15% may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only for their children or wards. Secondly, within that quota, the merit should not be given a complete go-by and directed that to prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. 13.From the above discussion of the facts and law, it appears that the AICTE in the Interim Policy Regulation, 2003 after taking into consideration the judgment delivered by the apex Court on 31.10.2002 in T.M.A. Pai Foundation’s case (supra) revised the norms in respect of fees and admission in the professional and technical colleges. In that Regulation, it was specifically stipulated that the State Government are required to prescribe certain percentage of seats which can be reserved for admission by the management of technical institutions. Thereafter, the apex Court considered the said question again in the case of P.A. Inamdar (supra) and observed the following norms. The prescription of percentage has to b made by the State Government in accordance with the local needs and different percentage can be fixed for minority and non-minority technical institutions. The State Government should judiciously decide such percentage of management seats. The maximum limit of percentage of management seats shall, however, not exceed 15% of the sanctioned intake, in case of non-minority technical institutions. In the event 15% management seats not being filled up, the vacant seats may be reverted back to general seats to be filled up through State Counselling along with other candidates. After the said decision of P.A. Inamdar case (supra), 2007 Act was enacted and as already stated in the above paragraphs, Section 9 of the said Act still holds the field and by an interim order of the apex Court those provisions of 2007 Act are in force. Though AICTE has already issued Regulations 10 and 11 subsequent to Interim Regulation 2003, nothing has been stipulated regarding the management in the Regulations 2010 and 2011. In the Interim Regulation, 2003, it was specifically stated that these regulations shall be applicable to all such technical institutions and technical courses/programmes which are governed by the existing regulation of AICTE. Though AICTE has already issued Regulations 10 and 11 subsequent to Interim Regulation 2003, nothing has been stipulated regarding the management in the Regulations 2010 and 2011. In the Interim Regulation, 2003, it was specifically stated that these regulations shall be applicable to all such technical institutions and technical courses/programmes which are governed by the existing regulation of AICTE. It was also stated that in supersession of existing provisions, the Interim Regulation will govern the field till the regulations are amended in respect of fees and admission. It was also admitted by the AICTE in their counter affidavit that NRI quota was fixed at 5% of the intake capacity by Regulations 2010 and 2011 and none of the institutions have applied for reservation of the said quota with requisite fees. 14.In view of the above and in the absence of any specific provision regarding management quota, the said 2007 Act still holds the field. Accordingly, it is open to the petitioners’ institutions to fill up 10% of the approved intake capacity of the institutions under the said management quota and those seats shall be filled up from OJEE merit list under the supervision of the OJEE-2012 Committee. The writ petitions are allowed accordingly. Petitions allowed.