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TMI Blog2005 (6) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... 78, 19380, 19381, 19384 to 19403, 19408, 19418, 19441 to 19443, 19444, 19447 to 19449, 19457, 19467 to 19471, 19474, 19493, 19502 to 19507, 19511, 19 552, 19553 to 19555, 19557, 19566, 19588, 19596, 19615, 19619, 19620, 19622, 19628, 19629, 19631, 19632, 19633, 19635, 19638, 19639, 19654 ,. 19657, 19658, 19659, 19660, 19661, 19666, 19668, 19672, 19683, 196 85, 19689, 19690, 19699, 19700, 19703, 19706, 19713 to 19715, 19716, 19718, 19719, 19723, 19728, 19736, 19737, 19739, 19741, 19755, 19758, 19760 to 19764, 19765 to 19769, 19776, 19787, 19788, 19790, 19796, 1 9807, 19811, 19819, 19820, 19821, 19822, 19831, 19832, 19834, 19836, 19839, 19841, 19842, 19845, 19847, 19848, 19849, 19852, 19857, 19862, 19866, 19870, 19875 to 19877, 19878, 19883, 19884 to 19887, 19888, 1 9894, 19895, 19897 to 19900, 19901 to 19905, 19907 to 19909, 19925, 1 9931, 19938, 19943, 19945, 19953, 19965, 19968,. 19969 to 19973, 1997 5 to 19977, 19979, 19980, 19981, 19984, 19985, 19986, 19995, 19996, 1 9997, 20001 to 20003, 20004, 20011, 20015, 20018, 20022, 20023, 20026 , 20027, 20029, 20030, 20035, 20042, 20045, 20046, 20047, 20048, 2005 5, 20056, 20058, 20062, 20063, 20064 to 20066, 20069, 20070, 20078, 20080, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Mr.V.Raghupathy, Govt.Pleader; Mr.A.L.Somayaji, Addl.Advocate General Assisted by Mr.D.Krishnakumar, Spl.Govt.Pleader ; Mr.G. Masilamani, Senior Counsel, for M/s.G.M.Mani Associates (for Anna University); Mr.R.Krishnamoorthy, Senior Counsel for Mr.V.Ayyathurai, Mr.R.Thiagarajan, Senior Counsel for M/s. K.Balu O R D E R This writ petition and the connected writ petitions involve a common question of law, i.e., the validity of G.O.Ms.No. 184 Higher Education (J2) Department, dated 09.06.2005 abolishing the Tamil Nadu Professional Courses Common Entrance Examination 2005 and discontinuation of the improvement exam for admission to professional colleges in the State of Tamil Nadu for the academic year 2005-2006. Since common questions of law and fact are involved, we have heard all the cases together, and are disposing them off by this common judgment. 2. In W.P.No.18801 of 2005, N.Priyadarshini v. The Secretary to Government, Education Department, Fort.St.George, Chennai - 9 and another (which we are treating as the leading case), it has been alleged in paragraph 3 of the affidavit filed in support of the petition that the writ petitioner undertook the plus 2 (class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed upto 1996-1997 and thereafter as a further expansion of the scheme the Government introduced a Single Window System of admission from the years 1997-1998. 3. Till 2002 i.e., prior to the Judgment in T.M.A.Pai Case, admission to Government quota seats was being done through Single Window Counselling System of the State Government and students' ranking was done based on the +2 marks and the marks in the entrance test. The management quota seats were however being filled up by the management themselves for which no entrance test was conducted. After the 11 Judges Constitution Bench of the Supreme Court of India delivered its judgment in T.M.A.Pai case the same method of making admission to Government quota seats by combining the marks obtained by the students in +2 and entrance test through Single Window Counselling is being continued without any change. However, in respect of admissions under management quota, the management of self-financing professional colleges were instructed to make admissions in a fair and transparent manner. Following these instructions, during the year 2003-2004 the managements admitted the students by conducting entrance tests by themselves. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actical approach relying on merit which the +2 marks themselves constitute. A merit based system relying on the +2 marks alone would thus be just and sufficient. The +2 examination is itself verily an entrance to test to get admitted to higher level courses and admission to Professional Courses. This deviates the need for any separate common entrance test. It is now proposed to make the admissions by ranking the students based on the marks obtained by them in the +2 examination to ensure that meritorious students gets their choice of colleges and courses. Further it is considered that the present system of improvement examination has led to a problematic situation in admission where large percentage of seats are cornered by a small number of students who are in a position to take such improvement examination. It acts against those who cannot afford to take coaching classes and appear for improvement examinations. It has therefore been decided that admission of students for undergraduate professional courses based on a common Entrance Test may be abolished and the system of improvement examination may be discontinued from the academic year 2005-2006. 7. The Government accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f marks in Practical-I (iv)Percentage of marks in Practical-II (v)Date of Birth (vi)By lot the practice of allowing students to take improvement examinations thereby improving their +2 marks for admission to professional course be discontinued from the academic year 2005-2006. 8. The Government further direct that the marks of the students who have taken the improvement examination during 2005-2006 will not be taken into account for consideration for admission to professional courses. If they choose to seek admission to professional courses during 2005-2006, the marks obtained by them in the +2 in their first attempt will alone be taken into account. 9. Orders in respect of Law courses will be issued separately. 10. All the Single Window Agencies and the departments concerned are requested to take necessary further action in the matter immediately. 11. This order comes into effect forthwith. (By Order of the Governor) K.S.SRIPATHI, SECRETARY TO GOVERNMENT. 6. It is alleged that the common entrance examination for admission to MBBS course for the academic year 2005-2006 was held on 23.04.2005 and the result of the same was declared on 12.05.2005. The resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onding Regulations made under the All India Council for Technical Education Act, 1987, Dentists Act, etc. The relevant part of the Regulations on Graduate Medical Education, 1997 reads as follows:- MEDICAL COUNCIL OF INDIA SALIENT FEATURES OF REGULATIONS ON GRADUATE MEDICAL EDUCATION, 1997 PUBLISHED IN PART III, SECTION 4 OF THE GAZETTE OF INDIA DATED 17TH MAY 1997 1.Short Title and commencement : (1) These regulations may be called the Regulations on Graduate Medical Education, 1997 2.They shall come into force on the date of their publication in the Official Gazette. ADMISSION, SELECTION, MIGRATION AND TRAINING: - Admission to the Medical Course - Eligibility Criteria : No candidates shall be allowed to be admitted to the Medical Curriculum of first Bachelor of Medicine and Bachelor of Surgery (MBBS) Course until: 1.He/She shall complete the age of 17 years on or before 31st December, of the year admission to the MBBS course. 2.He/She has passed qualifying examination as under: - (a)The higher secondary examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a period of 12 years study, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Selection The selection of students to medical college shall be based solely on merit of the candidate and for determination of the merit, the following criteria be adopted uniformly throughout the country: 1.In states, having only one Medical College and one University board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration. 2.In states, having more than one university/board/examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducted by different agencies; 3.Where there are more than one college in a State and only one University/Board conducting the qualifying examination, then a joint selection board be constituted for all the colleges. 4.A competitive entrance examination is absolutely necessary in the cases of Institution of All India character. 11. Mr.K.M.Vijayan, learned counsel for the petitioner submitted that sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal Council came into force. In fact in some States, entrance examination is conducted jointly for Engineering and Medical students also. We fail to see why the State of Maharashtra should say that it will be an arduous task. In a recent judgment of this Court in Shri Chander Chinar Bada Akhara Udasin Society v. State of J K, (1996) 5 SCC 732: (1996 AIR SCW 3 778) in the context of admission to Medical Colleges, and the need for a Common Entrance Examination, this Court observed (p.738) (of SCC) ; (at p.3782 of AIR) as follows:- It need not be pointed out that the percentage of marks secured by different applicants at different type of examinations at the higher secondary stage cannot be treated as uniform. Some of such examinations are conducted at the State level, others at the national level including the Indian School Certificate examination. The percentage secured at different examinations are bound to vary according to standard applied by such examination bodies, which is well known. As such a common entrance examination has to be held (emphasis supplied) It has been, therefore, held a 'Common Entrance Examination has to be held'. 15. Learned counsels ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nimum 30% non-reserved seats in the MBBS Course in the medical colleges. Some of the State Governments and Universities, we are informed, are proposing to fill up the minimum 3 0% non-reserved seats for the MBBS Course on the basis of the mark obtained by the students at the qualifying examinations held by different States and/or Universities, totally ignoring the fact that the standard of judging at these different qualifying examinations cannot, by its very nature be uniform. Some Universities may be very liberal in their marking while some other may be strict. There would be no comparable standards on the basis of which the relative merits of the students can be judged. It would be wholly unjust to grant admissions to the students by assessing their relative merits with reference to the marks obtained by them, not at the same qualifying examination where standard of judging would be reasonably uniform but at different qualifying examinations held by different State Governments or Universities where the standard of judging would necessarily vary and not be the same. That would indeed be blatantly violative of the concept of equality enshrined in Article 14 of the Constitution. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation once framed would be part of the Statute. Similarly in St.Johns Teachers Training Institute v. Regional Director,(2003) 3 SCC 321 (vide paragraph 10), the Supreme Court observed: - The regulations made under power conferred by the statute are supporting legislation and have the force and effect, if validly made, as an Act passed by the competent legislature (see Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331). It is not disputed by the respondents that the Regulations in question have been validly made under power conferred by the statute. Hence they have to be treated as part of the relevant Act itself. 21. Mr.P.P.Rao, learned senior counsel appearing for the respondents, has relied on the decision of the Supreme Court in State of M.P v. Kumari Nivedita Jain, (1981) 4 SCC 296 in which it was held that while Regulation I of the Indian Medical Council Regulations has mandatory force, Regulation II of the said Regulations (which include Regulations relating to admission in the Medical Colleges) is only directory and not mandatory. A similar view was taken by the Supreme Court in Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401. However, in Dr.Preeti Srivastava v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouncil Regulations ( quoted above) amount to delegated legislation, and are hence to be treated as part of the Medical Council Act. On the other hand, the impugned G.O.Ms.No. 184 Higher Education (J2) Department, dated 09.06.2005 is a purely executive order. It is well settled that an executive order cannot over ride the statutory rules or regulations. 25. It is no doubt true that ordinarily this Court does not interfere with policy decisions of the State Government vide Union of India v. International Trading Company, (JT 2003 (4) SC 549), Tamil Nadu Electricity Board v. Tamil Nadu Electricity Board Engineers Association, 2005 (1) MLJ 507, Chairman and MD, BPL Ltd. v. S.P.Gururaja and others, (2003) 8 SCC 567, Indian Charge Chrome Ltd v. Union of India, (2 003) 2 SCC 533, Union of India v. Kannadapara Sanghatanegala Okkuta Kannadigara, (2002) 10 SCC 226, Federation of Railway Officers Association v. Union of India, (2003) 4 SCC 289, etc. However as observed by the Supreme Court in State of N.C.T of Delhi v. Sanjeev, AIR 2005 SC 2080 (vide paragraph 16), there can be judicial review of administrative action on three grounds namely: - (i)Illegality (ii) Irrationality ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot override rules statutorily made governing the conditions of service of the employees. 30. Similarly in Union of India v. Madras Telephone SC ST Social Welfare Association, (2000) 9 SCC 71(vide paragraphs 17 19) the Supreme Court observed: - Once the statutory recruitment rules came into force the earlier administrative instructions cannot be adhered to and will have no force 31. Similarly in Shish Ram v. State of U.P, (1996) 10 SCC 166 ( vide paragraph 5), the Supreme Court observed: - When the statutory rules came to be made increasing their scale of pay and making them eligible for promotion directly to the post of gazetted cadre class II from Assistants, Head Accountants, Stenographers etc. to a pay scale of ₹ 500-900, it would be obvious that the executive instructions issued earlier had to yield place to the statutory rules. The same view has been taken by a Full Bench of the Allahabad High Court in Vijay Singh v. State of U.P., 2005 LIC 505 (vide paragraphs 6 to 11) 32. The impugned G.O.Ms.No. 184 Higher Education (J2) Department, dated 09.06.2005 is clearly violative of the selection criteria fixed in the Regulations on Graduate Medi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clubs unequals, and hence violates Article 14 of the Constitution. 38. In the 11 Judge Constitution Bench decision in T.M.A.Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 (vide paragraph 345) the Supreme Court observed: - Implicit in the concept of equality is the concept that persons who are in fact unequally circumstanced cannot be treated on par. 39. Mr.P.P.Rao, learned senior counsel for the respondents, submitted that most of the students who appeared in the admission test have passed their qualifying examinations from the State Board, and there are only a small number of students who passed the qualifying examinations from ISC or CBSE Board. This precise submission was considered by the Supreme Court in Ravindra Kumar Rai v. State of Maharashtra (supra) and was rejected in the following words:- The contention of the State that candidates from CBSE Board are small in number does not appeal to us. 40. Mr.Paul Vasantha Kumar, learned counsel for the petitioner in some of the cases submitted that in the State of Tamil Nadu about 10,00 0 students appear every year in the qualifying (class 12) examinations conducted by CBSE and about 5000 students in IS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iversal Law Publishing Co.Pvt. Ltd., New Delhi p.65) quotes the decision of the House of Lords in Warburton Vs. Loveland (1832) 2 D. CC. (H.L.) 480 wherein it was observed: Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature . 45. In Kanailal Sur Vs. Paramnidhi, AIR 1957 SC 907 (910) the Supreme Court observed: If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act . 46. Similarly, in State of U.P. Vs. Vijay Anand Maharaj, AIR 1963 SC 946 (950) the Supreme Court observed: When a language is plain and unambiguous and admits of only one meaning, no question of construction of the statute arises, for the Act speaks for itself . 47. In Emperor Vs. Benoarilal Sarma, AIR 1945 P.C.48 the Privy Council observed (per Viscount Simonds, L.C.): Again and again this Board has insisted that in construing enacted words we are not concerned with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing interbranch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activism's unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of interbranch equality. 53. Secondly, judicial restraint tends to protect the independence of the judiciary. When courts encroach into the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approach and began upholding the laws. 'Economic due process' met with a sudden demise. 57. The moral of this story is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary ( in fact the mere threat may do, as the above example demonstrates). The judiciary should therefore confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in a non-judicial setting. 58. We hasten to add that it is not our opinion that judges should never be 'activist.' Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court, vide Brown v. Board of Education, 347 U.S. 483 (1954), Miranda vs. Arizona, 384 U.S. 436, Roe v. Wade, 410 U.S. 113, etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to in exceptional circumstances when the situation forcefully demands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India under Entry 66 List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission, criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254. 62. In the same decision the Supreme Court further observed ( paragraph 52): - These regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon the regulations framed by the Medical Council of India for postgraduate medical education. 63. In our opinion, if the State Government wanted to depart from the selection method laid down in the Regulations, it was incumbent on it to pass an Act or Ordinance and then get the assent for it from the President of India under Article 254(2) of the Constitution, but that has not been done. Moreover, even if that had been done it is doubtful whether it would have been a valid law, since it would still be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution, as the Madras University Act, 1923, on the enactment of the present Central Act, the provisions of the said law if repugnant to the provisions of the Central Act would stand impliedly repealed to the extent of repugnancy. Such repugnancy would have to be adjudged on the basis of the tests which are applied for adjudging repugnancy under Article 254 of the Constitution. 65. In the same decision, in paragraph 27 the Supreme Court observed: - In Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of T.N, (1996) 3 SCC 15 which was a case relating to medical education and which also related to the effect of a Central law upon a law made by the State under Entry 25 List III, it was held (at SCC p.35, para 34) that the essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now rests with the Central Government alone. Therefore, the State could not have any policy outside the AICTE Act and indeed if it had a policy, it should have placed the same before AICTE and that too before the latter granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ern of the State Government that students from rural areas may be handicapped. 70% of India lives in rural areas where generally people are poorer and lacking in many facilities and amenities which many urban people enjoy. 69. In the common counter affidavit filed in this batch of writ petitions it has been stated on behalf of the State Government in paragraph 4: - Students who are studying rural areas are handicapped in writing the Common Entrance Test due to lack of infrastructural facilities. Rural students have to specially prepare themselves for writing the Entrance Test. On the contrary, students in cities attend special coaching classes by paying exorbitant amounts and prepare themselves for writing the Common Entrance Test. Due to lack of infrastructure and financial resources, students who study in rural areas who secure meritorious ranks in XII standard examination are unable to fare well in the Entrance Test. Experience has shown that the Common Entrance Test has resulted in great disadvantage to students studying in rural areas. 70. However, we would not like to make any final observation in the matter at this stage as to how the handicap of rural students can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the decisions of the Supreme Court (referred to above), and hence cannot be scrapped. What the State Government could have done, if it thought fit, was to have written to the Medical Council (or A.I.C.T.E or Dental Council) for amending the Regulations and give some kind of legally permissible help to the rural students so that the handicap could be removed/reduced. What kind of help could be validly given to the rural students is not for us to decide. The authorities concerned can consult the experts in the matter and after studying the problem consider whether to amend the Regulations as they stand at present, but this Court can certainly not amend the Regulations. This court should exercise judicial restraint and should not ordinarily interfere with legislative or executive functions as held by a Division Bench of this Court in Rama Muthuramalingam v. Dy.Superintendent of Police, AIR 2 005 Mad 1. 74. Several other submissions have also been made by the learned counsels for the petitioners before us e.g., that the principles of promissory estoppel and legitimate expectation have been violated, etc. However we do not think it necessary to go into these submissions, since we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that the council may: - provide guidelines for admission to students to technical institutions and Universities imparting technical education. 79. Guideline No.3 of the aforesaid Guidelines states: - Entrance tests: - All States/Union Territories (UTs) should conduct entrance tests in the subjects of Physics, Chemistry and Mathematics at12+ level. The entrance test should be common to all engineering degree institutions in the State/UT. The minimum marks for eligibility for the entrance test need not be prescribed in the case of degree courses and all students who have passed the qualifying examination may be permitted to appear in the entrance test. Only the merit ranking in the entrance test should be the basis for admission to engineering degree programmes. Such test should be conducted by appropriate agencies set up for the purpose. 80. In addition to the above Regulation 7 of the A.I.C.T.E Regulations states: - A common merit list in accordance with the provisions of subregulation(5) shall be prepared from amongst all the candidates provided that in States where no such entrance examination is presently being held, a common entrance examination shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llabus, different question papers, and different marking standards. 84. Learned Advocate General submitted that in view of the proceedings issued by the State in pursuance of G.O.Ms.No. 184 Higher Education (J2) Department, dated 09.06.2005 there will be no discrimination. We have seen the said proceedings, and we do not agree. Merely because Dr.MGR Medical University has to give eligibility certificate to a student who has passed the qualifying examinations from a board other than the State Board, this does not mean that there will be no discrimination. It may be clarified that mere passing of the qualifying examination (Plus two) does not mean that the standard of marking of the different boards becomes the same. As already observed above, different qualifying examinations have different standard of markings. They are equivalent in the sense that they are all qualifying ( eligibility) examination, which means that a person who passes the said examination becomes eligible to apply for admission to a graduate course, whether in a University or medical college, dental college or engineering college etc This does not mean that the standard of marking in different examinations is t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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