High Court Madras W.P.No. 18801 of 2005 Entrance Improvement

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 27/06/2005

Coram

The Hon'ble Mr.MARKANDEY KATJU, CHIEF JUSTICE
and
The Hon'ble Mr.Justice F.M.IBRAHIM KALIFULLA

W.P.No. 18801 of 2005

and W.P.Nos.,18836 to 18838, 18867 to 18869, 18891, 18892, 18902 to 18904,
18926, 18927, 18928, 18954, 18957, 18984 to 18988, 18990, 190 28, 19040,
19067, 19072, 19078 to 19082, 19084, 19090, 19091, 19092, 19093, 19094, 19097,
19100, 19106, 19107, 19112, 19132, 19134, 19135 to 19139, 19143, 19144, 19150,
19151, 19154, 19155 to 19162, 19163 to 19170, 19179, 19182, 19188 to 19192,
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19265, 19270 to 19274, 19275 to 19278, 19283, 19291, 19301 to 19303, 19305 to
19309, 19310, 19313, 19314 to 19316, 19324, 19325, 19335, 19336, 19338, 19347,
19349, 19350, 19360, 19369, 19373, 19374, 19375 to 19377, 19378, 19380, 19381,
19384 to 19403, 19408, 19418, 19441 to 19443, 19444, 19447 to 19449, 19457,
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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, 20081, 20082, 20086 to 20089, 20090,
20101 to 20104, 20114, 20 115, 20119, 20120, 20121, 20122, 20128, 20130,
20131, 20132, 20133 to 20135, 20136, 20137, 20138, 20139, 20140, 20144 to
20146, 20148, 201 54, 20155, 20156, 20162, 20168, 20180, 20181, 20182, 20185,
20196, 20 197, 20198, 20202, 20204, 20211, 20215, 20217, 20218, 20219, 20220,
2 0221, 20222, 20223, 20231, 20233, 20243, 20244, 20246, 20247, 20248, 20250,
20251, 20253, 20254 to 20265, 20267, 20268, 20269, 20276, 2027 7, 20278,
20279, 20281, 20286, 20291, 20292, 20295, 20299, 20303, 203 04, 20305, 20306,
20307, 20308, 20309, 20314, 20315, 20316, 20317, 20 318, 20319, 20328, 20330,
20332, 20333, 20334, 20335, 20336, 20339, 2 0344, 20345, 20346, 20348, 20352,
20355, 20358, 20360, 20361, 20363, 20365, 20366, 20374, 20376, 20378, 20379,
20380, 20382, 20383, 20385, 20386, 20394, 20401, 20402, 20408, 20411, 20412,
20413, 20414, 20417 , 20419, 20422, 20423, 20427, 20428, 20429, 20430 to
20434, 20435 to 20443, 20444, 20445, 20446, 20447, 20448, 20449 to 20451,
20452, 2045 3, 20454, 20455, 20456, 20457, 20458, 20459, 20460, 20461, 20462,
20463, 20464, 20465, 20466, 20467, 20468, 20469, 20470, 20471 to 20474, 20593
to 20596, 20616, 20676, 20700,20710, 20712, 20714, 20716, 20725 , 20726,
20727, 20741, 20742, 20752, 20806, 20818, 20835 to 20837, 20 844, 20845, 20849
and 20895 of 2005
and
WP (MD) Nos.5188, 4934 to 4937, 4961, 5040, 5045, 5046, 5047 to 5050, 5058,
5069, 5083, 5087, 5106, 5108, 5109, 5110, 5125, 5135, 5136, 51 37, 5139, 5150,
5190, 5203, 5205, 5206, 5211, 5212, 5226, 5234, 5235, 5239, 5242, 5248, 5252,
5259, 5260, 5271, 5279, 5280, 5284, 5286, 52 87 & 5292/2005
and

connected writ miscellaneous petitions.

W.P.No.18801 of 2005

N.Priyadarshini .. Petitioner

-Vs-

1. The Secretary to Government,
Education Department,
Fort.St.George, Chennai - 9.

2. The Secretary
Selection Committee (M.B.B.S)
Kilpauk, Chennai - 10. .. Respondents



For Petitioners :::
Mrs.K.M.Vijayan, Senior Counsel for M/s.Law Law,
Mr.R.Gandhi, Senior Counsel for M/s.V.P.Sengottuvel,
Mr.C. Selvaraju, Senior Counsel for M/s.S.Mani,
Mrs.Nalini Chidambaram, Senior Counsel for M/s.Gladys Daniel, Mr.T.R.Rajagopalan, Senior Counsel for M/s.R.Sankarasubbu,
Mr.C.Chinnasamy, Senior Counsel for M/s.Haja Mohideen Kisthi,,
Mr.Arvind P.Datar Senior Counsel for M/s.K.Ramasamy,
Mr. Vijay Narayan, Senior Counsel for M/s.R.Parthiban,
Mr.P.S.Raman, Senior Counsel for M/s.P.R.Raman,
Mr.P.Jayaraman, Senior Counsel for Mr.G. Thangavel,
Mr.N.Paul Vasantha Kumar,
Mr.K.Selvaraj

For Respondents ::::
Mr.P.P.Rao, Senior Counsel Assisted by Mr.V.Karthikeyan Addl.Govt.Pleader; Mr.N.R.Chandran, Advocate General Assisted 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 (R3 in W.P.No.18868/05); Mr.R.Thiagarajan, Senior Counsel for M/s. K.Balu (for R3 in W.P.No.18869/05).


:O R D E R

THE HON'BLE THE CHIEF JUSTICE

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 12) examination from the State Board in March 2003 at
Rasipuram, Namakkal District and secured qualifying marks. The petitioner
took the plus 2 course improvement examination in the month of March 2004 and
secured the following marks:-
" Biology -- 200/200
Physics -- 198/200
Chemistry -- 198/200"

3. It is further alleged in paragraph 4 of the petitioner's affidavit that
the petitioner appeared for the Tamil Nadu Professional Courses Entrance
Examination wherein she got an aggregate of 93.66/100. In total she secured
292.66/300, but she failed to get admission in MBBS under Backward Classes
category by a slim margin. Hence, she again took the entrance examination for
the academic year 2005-2006, and secured 97.50/100. The total aggregate of
the qualifying examination plus common entrance examination secured by the
petitioner was 296.5/300. Thus, it is alleged by the petitioner that she
stood a good chance to secure admission for MBBS course for the academic year
2005-2006.

4. It is alleged in paragraph 6 of the affidavit that the petitioner was
shocked to know about the impugned order dated 09.06.2005 by which the system
of admission by common entrance examination and improvement examination for
the academic year 2005-2006 has been cancelled.

5. The aforesaid impugned order dated 9.6.2005 reads as follows: -

ABSTRACT

Professional Colleges - Admission of students - Abolition of Common Entrance
Test and Discontinuation of improvement examination from the academic year
2005-2006 - Orders - Issued .


Higher Education (J2) Department

G.O.Ms.No.184
Dated:09.06.2005

Read:- G.O.Ms.No.657, Education Department, dated 29.05.1984
*****

ORDER:

Parents and students as also educationists have been unanimous in
expressing the need for a simplified system for admission to professional
colleges particularly in undergraduate Engineering, M.B.B.S. and allied
courses, B.V.Sc, B.Sc. (Agri.) undergraduate Law and similar other
disciplines.

2. Prior to 1984-1985 admission to professional colleges was done
based on the academic marks plus the marks in an interview. The interview was
replaced by an entrance test conducted by the Anna University for admission to
the professional colleges from the year 1984-85. This procedure of admitting
the students to the professional colleges based on the academic marks plus the
marks obtained in the entrance tests was 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.

4. The five Judges Bench of Supreme Court of India in Islamic Academy
of Education and Another Vs. State of Karnataka and Others in its Judgment
dated 14.08.2003 has held that admission under the management quota seats has
to be done based on the entrance test conducted by the State Government or by
the Association of self-financing professional colleges of a particular type.
In so far as Government quota seats are concerned the procedure of admission
was being continued based on +2 marks and marks obtained in the entrance
examination conducted by the Anna University through Single Window
Counselling. In respect of admission under management quota, as per the
Judgment in the Islamic Academy of Education case, the Association of
engineering colleges or the Association of Medical Colleges as the case may
be, permitted by the Judges Committee (Justice S.S.Subramani), conducted the
common entrance test and admission to self-financing colleges were done based
on the marks obtained in +2 and the marks obtained in the common entrance test
conducted by the Association in 2004-2005.

5. The Government have been considering requests from various
quarters for doing away with the common entrance test for admission to
professional colleges. It has been opined that the Common Entrance
Examination has now become a traumatic experience for patents and children as
it appears to determine at one stroke the future of the child. In particular,
students from rural areas are affected as the Entrance Examination operates
against their chances to gain admission. The +2 examination itself is a
serious examination of merit as laid down by the Supreme Court. With the
tremendous expansion in the educational facilities in the State, the
opportunities for students in professional Courses have been substantially
enhanced. Parents are now taking enormous effort and interest in helping
their wards all through the year to successfully complete the +2 examination.
This allows the student to develop his/her knowledge in a proper school
environment over the course of the years.

6. While considering all aspects mentioned supra the judgment of the
Five Judges Bench of the Supreme Court in Islamic Academy of Education case
indicates that,

"In our view what is necessary is a practical approach keeping in mind
the need for a merit-based selection."

The judgment contemplates adopting a practical 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 direct that,

(i)a new policy of admissions be introduced for admission to various
professional institutions for undergraduate courses from the academic year
2005-2006 to ensure admissions purely on the basis of the marks obtained in
the +2 examination and based on the rule of reservation of the State
Government. This will cover admission to B.E./B.Tech and allied courses,
M.B.B.S., B.D.S., B.Pharm and allied courses, B.Sc (Agriculture) and allied
courses B.V.Sc., B.F.Sc., Law and such undergraduate courses for which the
entrance examination has been prescribed.
(ii)the procedure followed hitherto for the computation of +2 marks in
assessing the rank for entry into the courses spelt out in para 7( i) above be
continued to be followed;
(iii)the Single Window System of Counselling for all professional courses be
continued to be followed;
(iv)the following order of priority be followed to determine the rank of such
students in case of two or more candidates obtaining equal aggregate marks
(tie) in the related subjects:

I Admission in respect of Engineering and allied courses:

i)Percentage of marks in Mathematics
ii)Percentage of marks in Physics
iii)Percentage of marks in Chemistry
iv)Fourth optional subject under part-III
v)Date of Birth
vi)By lot

II Admission in respect of Medical and allied courses, B.Sc. (Agri)
and allied courses:
(A)

i)Percentage of marks in Biology
ii)Percentage of marks in Chemistry
iii)Percentage of marks in Physics
iv)Fourth optional subject under Part-III
v)Date of Birth
vi)By lot

(B)

i)Percentage of marks in Botany and Zoology taken together
ii)Percentage of marks in Chemistry
iii)Percentage of marks in Physics
iv)Percentage of marks in Botany and Zoology taken together*
v) Date of birth
vi)By lot

*This is only in respect of those who take Botany and Zoology rather than a
fourth subject in Part-III

III Admission in respect of B.V.Sc., B.F.Sc., and allied
courses:

(A) Academic stream

(i)Percentage of marks in Biology (or) Botany and Zoology taken together
(ii)Percentage of marks in Chemistry
(iii)Percentage of marks in Physics
(iv)Percentage of marks in Maths
(v)Date of Birth
(vi)By lot

(B) Vocational Stream (B.V.Sc.)

(i)Percentage of marks in Biology
(ii)Percentage of marks in Vocational theory (Poultry or Dairying)
(iii)Percentage of 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 result of the plus 2 (class 12) State Board examinations was declared on 17.05.2005.

7. The petitioner's grievance is that having been permitted to take the improvement as well as common entrance examination for admission to MBBS course for the academic year 2005-2006, the State has no right to change the procedure for admission/selection, particularly after the same had been announced for the academic year 2005-2006, and the petitioner had acted on that announcement and had appeared in the entrance and improvement test after a great deal of preparation involving time and money.

8. It is alleged in paragraphs 12 and 13 of the petitioner's affidavit that the common entrance examination is conducted by Anna University, Chennai and nobody has ever complained that the entrance test was not transparent.

9. It is alleged in paragraph 10 of the petitioner's affidavit that the State of Tamil Nadu has more than one examining body for plus two examination, namely, (i) State Board, (ii) CBSE Board and (iii) ISC Board. Hence it is alleged that in view of the regulations on Graduate Medical Education, 1997 framed by the Medical Council of India and published in the Gazette of India dated 17.05.2005 in Part III Section 4, the impugned G.O.Ms.No. 184 Higher Education (J2) Department, dated 09.06.2005 is illegal.

10. It may be mentioned that prior to 1984-85 admissions to professional colleges was done on the basis of the marks in the qualifying examination (the class 12 board examination) plus the marks in an interview. From 1984-85 onwards, admission to medical colleges, dental colleges,
engineering colleges, etc. in the State of Tamil Nadu have been done by
holding a common entrance test and then adding the marks obtained by a
candidate in the common entrance with the marks obtained in the qualifying
examination (i.e. plus two examinations). It is alleged in paragraph 11 of
the petitioner's affidavit that this was a time tested procedure and it
continued to be a proven method of selection with simplicity and transparency
for the past 20 years. It is alleged that the new method of selection
suddenly introduced by G.O.Ms. No. 184 Higher Education (J2) Department,
dated 09.06.2005 is violative of the regulations on Graduate Medical
Education, 1997, which has statutory force in view of Section 33 of the Indian
Medical Council Act, 1956, and the corresponding 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, the last two years of study comprising of Physics,
Chemistry, Biology and Mathematics or any other elective subjects with English
at a level not less than core course of English as prescribed by the National
Council of Educational Research and Training after the introduction of the
10+2+3 years educational structure as recommended by the National Committee on
education.

Note: Where the course content is not as prescribed for 10+2 education
structure of the National Committee, the candidates will have to undergo a
period of one year pre-professional training before admission to the Medical
colleges;

Or
(b)The intermediate examination in science of an Indian University/ Board or
other recognised examining body with Physics, Chemistry and Biology which
shall include a practical test in these subjects and also English as a
compulsory subject.

Or

(c)The pre-professional/pre-medical examination with Physics, Chemistry and
Biology, after passing either the higher secondary school examination, or the
pre-university or an equivalent examination. The pre-professional/pre-medical
examination shall include a practical test in Physics, Chemistry and Biology
and also English as a compulsory subject.

Or


(d)The first year of the three years degree course of a recognized university,
with Physics, Chemistry and Biology including a practical test in three
subjects provided the examination is a "University Examination" and candidate
has passed 10+2 with English at a level not less than a core course.

Or

(e)B.Sc examination of an Indian University, provided that he/she has passed
the B.Sc examination with not less than two of the following subjects Physics,
Chemistry, Biology (Botany, Zoology) and further that he/she has passed the
earlier qualifying examination with the following subjects - Physics,
Chemistry, Biology and English.

Or

(f)Any other examination which, in scope and standard is found to be
equivalent to the intermediate science examination of an Indian
University/Board, taking Physics, Chemistry and Biology including practical
test in each of these subjects and English.

Note:

The pre-medical course may be conducted either at Medical College, or a
science college.
Marks obtained in Mathematics are not to be considered for admission to MBBS
Course.
After the 10+2 course is introduced, the integrated courses should be
abolished.

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 since
in the State of Tamil Nadu there is more than one University/ board/examining
body conducting the qualifying class 12 examinations (plus two examinations),
a common entrance examination is mandatory. Learned senior counsel submitted
that there are several examining boards/bodies in the State of Tamil Nadu
i.e., (i) State Board, (ii) CBSE Board and (iii) ISC Board, and hence under
the Regulations it was incumbent on the State Government to hold a common
entrance test.

12. M/s.R.Gandhi, C.Selvaraj, Mrs.Nalini Chidambaram, Mr.Arvind Datar learned
senior counsels, and Mr.Paul Vasantha Kumar and other learned counsels for the
petitioners have supported this submission.

13. The seats in question with which we are concerned are seats in Government
Medical/Engineering/ Dental colleges, as well as Government quota seats in
private Medical/Engineering/Dental colleges.

14. Learned counsels for the petitioners have strongly relied on the decision
of the Supreme Court in Ravindra Kumar Rai v. State of Maharashtra, AIR 1998
SC 1227(vide paragraphs 6 & 7), in which it was observed: -
" We may at the outset point out that inasmuch as there are three Boards in
Maharashtra State which conduct the qualifying examination and inasmuch as
there are several universities, the State of Maharashtra would clearly fall
under sub-cl. (2) of Regulation 5 made by the Medical Council and not under
sub-cl (3). The contention for the State that candidates from CBSE Board are
small in number does not appeal to us. Inasmuch as there is no dispute that
more tha one Board conducts the qualifying examination and the Universities
are more than one in number, Sub-clause (3) of Regulation 5, in our view, is
not attracted. It is also not possible for the State to say that conducting a
common entrance examination will delay the admission process or that it will
be extremely difficult to conduct the examination. In fact the statement in
the counter affidavit to the effect that the State has been conducting a
common examination for 1,80,000 at the 10 + 2 level in the 7 divisional boards
would itself show that the State is capable of conducting a Common Entrance
Examination for admission to medical colleges, even if the number of students
is large. We may also say that in several states, Common Entrance Examination
is being conducted even before 1997 when these Regulations made by the Medical
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 have also relied on the Constitution Bench
decision of the Supreme Court in Dr.Preeti Srivastava v. State of M.P, (1999)
7 SCC 120, (vide paragraph 28) in which it was observed: -
" A common entrance examination, therefore, provides a uniform criterion for
judging the merit of all candidates who come from different universities.
Obviously as soon as one concedes that there can be differing standards of
teaching and evaluation in different universities, one cannot rule out the
possibility that the candidates who have passed the MBBS examination from a
university which is liberal in evaluating its students, would not,
necessarily, have passed, had they appeared in an examination where a more
strict evaluation is made. Similarly, candidates who have obtained very high
marks in the MBBS Examination where evaluation is liberal, would have got
lesser marks had they appeared for the examination of a university where
stricter standards were applied. Therefore, the purpose of such a common
entrance examination is not merely to grade candidates for selection. The
purpose is also to evaluate all candidates by a common yardstick. One must,
therefore, also take into account the possibility that some of the candidates
who may have passed the MBBS Examination from more ' generous' universities,
may not qualify at the entrance examination where a better and uniform
standard for judging all the candidates from different universities is
applied. In the interest of selecting suitable candidates for specialized
education, it is necessary that the common entrance examination is of a
certain standard and qualifying marks are prescribed for passing that
examination. This alone will balance the competing equities of having
competent students for specialized education and the need to provide for some
room for the backward even at the stage of specialized postgraduate education
which is one step below the superspecialities." (emphasis supplied)


16. Learned counsel for the petitioners also relied on the decision
of the Supreme Court in Dinesh Kumar v. Motilala Nehru Medical College,
Allahabad, AIR 1985 SC 1059, in which it was observed: -
" The State Governments have also been equally guilty of indifference and
inaction in not taking any steps for the purpose of holding an entrance
examination which would test the relative merits of the students seeking
admission to the minimum 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." (emphasis supplied)

17. Similarly, in Shri Chander Chinar Bada Akhara Udasin Society v.
State of J & K., (1996) 5 SCC 732(vide paragraph 10), the Supreme Court
observed: -
" It need not be pointed out that the percentage of marks secured by different applicants at different types 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 the standard applied by such examining bodies,
which is well known. As such a common entrance examination has to be held."

18. In view of the clear pronouncements made repeatedly by the
Supreme Court (as quoted above) we are in agreement with the aforesaid
submission of the learned counsels for the petitioners that a common entrance
test is mandatory in the State of Tamil Nadu since there are several examining
Boards in the State.

19. The 1997 Regulations (quoted above) make it clear that 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 for granting admissions in
M.B.B.S. Course. However, in States having more than one
university/board/examining body, an entrance examination is mandatory. This
is because, as pointed out in the aforesaid decisions of the Supreme Court,
different examining bodies have different standards of marking, different
syllabus, etc., and hence a student who appears for the examination conducted
by an examining body which is stringent in granting marks will be
discriminated against vis--vis a student who appears for the examination
conducted by an examining body which is liberal in granting marks. This will
be violative of Article 14 of the Constitution as held in the aforesaid
decisions.

20. Thus, the 1997 Regulation is, in our opinion, really in
furtherance of Article 14 of the Constitution which aims at equality. As
already mentioned above, the 1997 Regulations has statutory force as under
Section 33 of the Indian Medical Council Act, 1956 it will amount to delegated
legislation. In Andhra Bank v. B.Satyanarayan, (2004) 2 SCC 657 (vide
paragraph 10) it was held by the Supreme Court that a valid regulation 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. State of M.P (1999) 7 SCC 120)
a Constitution Bench of the Supreme Court took a view contrary to the
decisions of the Supreme Court in Ajay Kumar Singh v. State of Bihar (supra)
and State of M.P v. Kumari Nivedita Jain (supra), and hence the latter two
decisions cannot be said to have laid down the correct law.

22. Thus, in paragraphs 56 and 57 of Dr.Preeti Srivastava's case (
supra), the Supreme Court observed: -
" In State of M.P v. Kumari Nivedita Jain (1981) 4 SCC 296 the provisions of
the Indian Medical Council Act and the regulations framed for undergraduate
medical courses were considered by the Court. The Court said that while
Regulation I was mandatory, Regulation II was only recommendatory and need not
be followed. We do not agree with this line of reasoning for the reasons
which we have set out above.
In the case of Medical Council of India v. State of Karnataka, (1998
) 6 SCC 131, a Bench of three judges of this Court has distinguished the
observations made in Nivedita Jain (1981) 4 SCC 296. It has also disagreed
with Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401 and has come to the
conclusion that the Medical Council regulations have a statutory force and are
mandatory. The Court was concerned with admissions to the MBBS Course and the
regulations framed by the Indian Medical Council relating to admission to the
MBBS course. The Court took note of the observations in State of Kerala v.
T.P.Roshana, (19 79) 1 SCC 572 (SCC at p.580) to the effect that under the
Indian Medical Council Act, 1956, the Medical Council of India has been set up
as an expert body to control the minimum standards of medical education and to
regulate their observance. It has implicit power to supervise the
qualifications or eligibility standards for admission into medical
institutions. There is, under the Act an overall vigilance by the Medical
Council to prevent sub-standard entrance qualifications for medical courses.
These observations would apply equally to postgraduate medical courses. We
are in respectful agreement with this reasoning."

23. Thus, in view of the Constitution Bench decision of the Supreme
Court in Dr.Preeti Srivastava's case it has to be held that all the Medical
Council Regulations, including those relating to admissions in medical
colleges, are mandatory and not directory.

24. As already stated above, the 1997 Medical Council 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
(iii) Procedural impropriety

Thus, the policy decision of the State Government will have to be quashed if
it is illegal or unconstitutional, or shockingly arbitrary in the Wednesbury
sense.




26. As observed by the Supreme Court in Kailash Chand Sharma v.
State of Rajasthan, (2002) 6 SCC 562 (vide paragraph 11) a circular of the
State Government laying down a policy decision must pass the test of Article
14 of the Constitution.

27. In this connection, it may be mentioned that according to theory
of the eminent jurist Kelsen (the pure theory of law) in every country there
is a hierarchy of laws and the general principle is that a law in a higher
layer of this hierarchy will prevail over the law in a lower layer of the
hierarchy (see Kelsens's "The General Theory of Law and State"). In our
country this hierar chy is as follows: -
(i)The Constitution of India.
(ii) Statutory law (which may be either Parliamentary law or law made by the
State legislature).
(iii) Delegated Legislation (which may be in the form of rules made under the
statute, regulations made under the statute, etc)
(iv) Purely administrative or executive orders.

The 1997 Regulations framed by the Medical Council of India (as also those
framed by the All India Council for Technical Education and the Dental
Council) are norms in the third layer in this hierarchy. On the other hand,
the impugned G.O.Ms.No. 184 Higher Education (J2) Department, dated
09.06.2005 is in the 4th layer of the hierarchy. Hence, if there is a
conflict between the two, the Regulations will prevail. In our opinion, there
is a clear conflict between the two, because the G.O.Ms.No. 184 Higher
Education (J2) Department, dated 09.06.2005 has done away with the system of
common entrance examination test, although admittedly there are several
examining bodies/boards in the State of Tamil Nadu.

28. In Virender Singh Hooda v. State of Harayana, (2004) 12 SCC 588
it was held that executive instructions which are contrary to the rules will
be invalid. In paragraph 24 of the aforesaid judgment, the Supreme Court
observed: -
" In law if an executive instruction is contrary to the statutory rules, the
rules will prevail and not the executive instructions."

29. In Union of India v. Arun Kumar Roy, AIR 1986 SC 737 (vide
paragraph 15), the Supreme Court observed: -
" A notification has no statutory force. It 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 Rs.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 Medical Education 1997 (as also the A.I.C.T.E
Regulations and Dental Council Regulations) because it abolishes the common
entrance test which is mandatory under the 1997 Regulations (and the
corresponding Regulations of the A.I.C.T.E and Dental Council) where there are
more than one examining board/examining bodies for conducting the qualifying
examinations. Although it is not necessary for us to go behind the rationale
for the selection criteria fixed by the 1997 Medical Council Regulations (or
corresponding Regulations of A.I.C.T.E and Dental Council) it appears obvious
to us that it was fixed in the light of Article 14 of the Constitution,
because different examining bodies/examining boards have different standards
of marking, the syllabi are different, an d so are the question papers, mode
of assessment of the students, etc. Hence there will be discrimination
between the students who appear in the examinations conducted by an examining
body which is more stringent in giving marks vis- -vis the students who
appear in the qualifying examination conducted by a more liberal examining
body.

33. It is well settled that Article 14 of the Constitution will be
violated not only if equals are treated unequally, but also if unequals are
treated equally vide State of Andhra Pradesh v. Raja Reddy, AIR 1967 SC 1458.

34. In State of Andhra Pradesh v. Raja Reddy (supra) the Supreme
Court observed (vide paragraph 23)
" A statutory provision may offend Article 14 of the Constitution both by
finding differences where there is none and by making no difference where
there is one."


35. In N.M.C.S & W Mills v. Ahmedabad Municipality, AIR 1967 SC 180
1
the Supreme Court held that taxation by the flat rate method according to the
floor area adopted for determining rent value for fixing the rateable value
was violative of Article 14 of the Constitution of India.

36. In the Constitution Bench decision in St.Stephen's College v.
University of Delhi, (1992) 1 SCC 558 (vide paragraph 100), the Supreme Court
observed: -
" To treat unequals differently according to their inequality is not only
permitted but required."

37. In Onkar Lal Bajaj v. Union of India, (2003)2 SCC 673 (vide
paragraph 27) the Supreme Court observed: -
" Article 14 guarantees to everyone equality before law. Unequals cannot be
clubbed."

In our opinion, the impugned G.O dated 9.6.2005 clearly 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 ISC examinations. At any event in view of
the clear decision of the Supreme Court in Ravindra Kumar Rai's case (supra)
the submission of Mr.P.P.Rao, learned senior counsel for the respondent in
this connection has to be rejected.

41. Mr.P.P.Rao, learned senior counsel for the respondents then
relied on the decision of the Supreme Court in State of T.N v. S.V.
Bratheep, (2004) 4 SCC 513. In our opinion, the said decision has no
application to the facts of the present case. That decision only says that
the State Government can prescribe a higher criteria than that prescribed by
All India Council for Technical Education. For instance, if the State
Government had prescribed that those passing in the common entrance test must
have secured more than a certain percentage of marks to be admitted to the
Medical/Technical courses no exception could be taken to such a higher
criteria laid down by the State Government. However, in our opinion, it is
not open to the State Government to totally scrap the method of admission laid
down by the Medical Council Regulations or All India Council for Technical
Education Regulations or the Dental Council Regulations. .

42. In the present case, it is not that the State Government has
prescribed a higher criteria than that prescribed by the Regulations of the
Medical Council or All India Council for Technical Education or Dental
Council. Rather, the State Government has totally abandoned and given a go by
to the method prescribed by the Regulations. This is clearly illegal, as it
surely does not amount to prescribing a higher criteria.

43. Mr.P.P.Rao, learned senior counsel for the respondents then
submitted that we should read down the Regulations and by a judicial
interpretation hold that instead of holding a common entrance test other
methods of selection for medical colleges/engineering colleges can be adopted
by the authorities. We cannot accept this submission. In our opinion, the
language of the Regulations is very clear and leads to only one
interpretation, namely, that if there is more than one examining body in the
State, then there has to be an entrance test.

44. When the language of a provision is clear we have to go by that
plain and literal language, and not try to twist it by probing into the
intention of the statute. Thus Craies on Statute Law, Seventh Edition, First
Indian Reprint 1999 (published by Universal 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 the policy involved or with the results,
injurious or otherwise, which may follow from giving effect to the language
used" (See also Ajay Pradhan Vs. State of M.P., AIR 1988 S.C. 1875 p.1878,
Rananjaya Singh Vs. Baijnath Singh, AIR 1954 SC 749 p.752, Senior
Superintendent, RMS Vs. K.B.Gopinath, AIR 1972 S.C. 148 7 p.1488).

48. Thus, in M/s.Hiralal Ratanlal Vs. S.T.O., AIR 1973 S.C.1034(vide
paragraph - 21) the Supreme Court observed:-
"In construing a statutory provision the first and foremost rule of
construction is the literary construction. All that we have to see at the
very outset is what does the provision say? If the provision is unambiguous
and if from the provision the legislative intent is clear, the Court need not
call into aid the other rules of construction of statutes. The other rules of
construction are called into aid only when the legislative intent is not
clear".


49. In view of the above decisions, we cannot accept the submission
of Mr.P.P.Rao, learned senior counsel, that we should read down or change the
language of the Regulations. In our opinion, the plain and literal reading of
the Regulations can lead to only one interpretation, namely, that if there is
more than one examining body in the State an entrance test is mandatory. We
cannot do violence to the plain and clear language used in the Regulations.

50. This Court cannot legislate, and it is important that Courts
should remember this and maintain judicial restraint as held by the Division
Bench of this Court in Rama Muthuramalingam v. Dy. Superintendent of Police,
AIR 2005 Madras 1

51. Under our Constitution the legislature, the Executive and the
Judiciary have their own broad spheres of operation. It is, therefore,
important that these three organs of the State do not encroach upon the domain
of another and confine themselves to their own, otherwise the delicate balance
in the Constitution will be upset and there will be a reaction. Of the three
organs of the state, it is only the Judiciary which has the right to determine
the limits of jurisdiction of all these three organs. This great power must
therefore be exercise by the judiciary with the utmost humility and
self-restraint. The judiciary must therefore exercise self-restraint and
eschew the temptation to act as a super legislature. By exercising
self-restraint it will only enhance its own respect and prestige.

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 like administrators. This
would be counterproductive. The touchstone of an independent judiciary has
been its removal from the political or administrative process. Even if this
removal has sometimes been less than complete, it is an ideal worthy of
support and one that has had valuable effects.

54. The constitutional trade - off for independence is that judges must
restrain themselves from the areas reserved to the other separate branches.
Thus, judicial restraint complements the twin, overarching values of the
independence of the judiciary and the separation of powers.

55. In Lochner vs. New York, 198 U.S. 45 (1905), Mr. Justice Holmes, the
celebrated Judge of the U.S. Supreme Court in his dissenting judgment
criticized the majority of the Court for becoming a super legislature by
inventing a 'liberty of contract' theory, thereby enforcing its particular
laissez - faire economic philosophy. Similarly, in his dissenting judgment in
Griswold vs. Connecticut, 381 U.S. 479, Mr. Justice Hugo Black warned that
"unbounded judicial creativity would make this Court a day-to-day
Constitutional Convention." In 'The Nature of the Judicial Process' Justice
Cardozo remarked: "The Judge is not a Knight errant, roaming at will in
pursuit of his own ideal of beauty and goodness." Justice Frankfurter has
pointed out that great judges have constantly admonished their brethren of the
need for discipline in observing their limitations (see Frankfurter's 'Some
Reflections on the Reading of Statutes').

56. In this connection we may usefully refer to the well-known episode in the
history of the U.S. Supreme Court when it dealt with the New Deal Legislation
of President Franklin Roosevelt. When President Roosevelt took office in
January 1933 the country was passing through a terrible economic crisis - the
Great Depression. To overcome this, President Roosevelt initiated a series of
legislation called the New Deal, which were mainly economic regulatory
measures. When these were challenged in the U.S. Supreme Court the Court
began striking them down on the ground that they violated the due process
clause in the U. S. Constitution. As a reaction, President Roosevelt
proposed to reconstitute the Court with six more Judges to be nominated by
him. This threat was enough, and it was not necessary to carry it out. The
Court in 1937 suddenly changed its 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 it in the interest of the
nation, but always keeping in mind that ordinarily the task of legislation or
administrative decisions is for the legislature and the executive and not the
judiciary.

59. In N.K.Prasada v. Government of India and Ors. (JT 2004 (Suppl.1 ) SC
326 (vide paragraphs 27 & 28), the Supreme Court following its own earlier
decisions observed that the Court while exercising its jurisdiction should
ordinarily remind itself about the doctrine of separation of powers and the
rule of self-restraint and must ordinarily be reluctant to assume the
functions of the statutory functionaries. The Supreme Court quoted its
earlier decision in Chairman and MD, BPL Ltd. v. S.P.Gururaja and others,
(JT 2003 (Suppl.2) SC 512 : (2003) 8 SCC 567), wherein it was observed: -
" If the Courts step outside the area of their institutional competence, the
Government may react by getting Parliament to legislate to oust the
jurisdiction of the Courts altogether. Such a step would undermine the rule
of law."

60. We are further of the opinion that since the Medical Council
Regulations 1997 have been framed in pursuance of Section 33 of the Medical
Council Act, 1956 which is a law made by Parliament, the field is occupied and
hence also the impugned G.O is illegal. For the same reason, the G.O
entrenches on a field occupied by the A.I.C.T.E and Dental Council
Regulations.

61. Thus in Dr.Preeti Srivastava v. State of M.P, (1999) 7 SCC 120 (vide
paragraph 35), the Constitution Bench of the Supreme Court observed: -
" Both the Union as well as the States have the power to legislate on
education including medical education, subject, inter alia, to Entry 66 of
List I which deals with laying down standards in institutions for higher
education or research and scientific and technical institutions as also
coordination of such standards. A State, has, therefore, the right to control
education including medical education so long as the field is not occupied by
any Union legislation. Secondly, the State cannot, while controlling
education in the State, impinge on standards in institutions for higher
education. Because this is exclusive within the purview of the Union
Government. Therefore, while prescribing the criteria for admission to the
institutions for higher education including higher medical education, the
State cannot adversely affect the standards laid down by the 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 violation of Article 14 of the
Constitution, as already observed above. The impugned G.O is not a law which
has received the assent of the President of India. As observed by the Supreme
Court in State of M.P v. Gopal D.Tirthani, (2003) 7 SCC 83 (vide paragraph
26), if the State Government wants to make a departure from the Regulations or
wants to carve out an exception to it, then the State Government has to make a
representation to the Central Government or Medical Council of India and make
out a case of justification consistently with the observation of the Supreme
Court in State of Punjab v. Dayanand Medical College and Hospital, (2001) 8
SCC 664, wherein it was observed: -
" It is not open to the university or the Government to dilute that standard
by fixing marks lower than what is set out by the Medical Council of India.
If they had any difficulty they ought to have approached the Medical Council
of India for fixing of appropriate standards in that regard. The State
Government could not unilaterally frame a scheme reducing the standard in
violation of the terms of the Regulations framed by the Medical Council of
India, which is repeatedly stated by this Court to be the repository of the
power to prescribe standards in postgraduate studies subject, of course, to
the control of the Central Government as envisaged in the Act constitution the
Council."

64. In Jaya Gokul Educational Trust v. Commr. & Secy. to Govt.
Higher Education Department, (2000) 5 SCC 231(vide paragraph 16) the Supreme
Court noted that after the Constitutional amendment (Forty-second amendment
Act, 1976) Entry 25 of List III (the Concurrent List) of the Seventh Schedule
reads: -
" Education, included technical education, medical education and universities,
subject to the provisions of Entries 63, 64, 65 and 66 of List I"

Thus, the State law made under Entry 25 of List III would be repugnant to any
law made by Parliament under Entry 66 of List I, to the extent of
inconsistency. The Supreme Court, further, observed: -
" Hence, on the subjects covered by this statute, the State could not make a
law under Entry 11 of List II prior to the Forty-second Amendment nor can it
make a law under Entry 25 of List III after the Forty-second Amendment. If
there was any such existing law immediately before the commencement of the
Constitution within the meaning of Article 372 of the Constitution, 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 permission. Once that procedure laid down
in the AICTE Act and Regulations had been followed under Regulation 8(4), and
the Central Task Force had also given its favourable recommendations, there
was no scope for any further objection or approval by the State. We may
however add that if thereafter, any fresh facts came to light after an
approval was granted by AICTE or if the State felt that some conditions
attached to the permission and required by AICTE to be complied with, were not
complied with, then the State Government could always write to AICTE, to
enable the latter to take appropriate action."

Thus in the aforesaid decision it has been clearly held that the State
Government cannot have a policy contrary to the Central Act or Regulations in
view of Article 254(1) of the Constitution as the field was occupied by the
Central Act and Regulations.

66. In Thirumuruga Kirupanand Variyar Thavathiru Sundara Swamigal
Medical Educational and Charitable Trust v. State of T.N, (1996) 3 SCC 15 the
facts were that the proviso to Section 5(5) of Dr.M.G.R Medical University,
Tamil Nadu Act, as introduced by Dr.M.G.R.Medical University, Tamil Nadu
(Amendment and Validation) Act, 1989 provided that no college shall be
affiliated to the University unless the permission of the State Government to
establish such college has been obtained. Section 10-A of the Indian Medical
Council Act, 1956 as inserted by the Indian Medical Council Amendment Act,
1993 required permission from the Central Government for establishing a new
medical college. It was held by the Supreme Court in the aforesaid case that
there was repugnancy between the Central and State Acts as regards setting up
of new medical colleges, and hence to this extent the State Act was invalid.
This view was taken holding that now the field regarding setting up of new
medical colleges is concerned is occupied by the Central Act and hence the
State Act to that extent is invalid in view of Article 254 of the
Constitution.

67. A similar view was taken by the Supreme Court in Kulwant Kaur v. Gurdial
Sigh Mann, AIR 2001 SC 1273

68. Learned counsels for the respondents submitted that the common
entrance test was abolished because students from rural areas are handicapped
as they could not get facilities (e.g. good coaching) or other resources
enjoyed by urban students. We can appreciate and understand the concern 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 be removed
since there are many social and economic factors which have to be carefully
taken into consideration in this connection and we are not experts in this.
In fact the word 'rural' itself has nowadays no clear cut connotation. Rural
India today is not the rural India which existed 50 or even 25 years ago.
Many rural areas have become semi-urbanised with facilities like electricity,
drinking water, roads, pucca houses, pucca buildings, schools, Television,
etc. Many areas which were earlier rural areas adjacent to cities have now
become part of the cities themselves due to the great expansion of the cities
in India and large scale influx of people from rural areas into the cities.
The rural countryside of India is not the same which existed 40 or 50 years
ago. There has been significant transformation of the rural countryside in
this period. All this requires a detailed study by experts, and this Court
does not consist of experts in this matter. As already observed above, the
State Government after making a detailed study about the rural areas can make
recommendations to the Central Government/Medical Council of India or AICTE or
Dental Council suggesting amending the Regulations to remove any handicaps of
rural students, and such recommendations can be considered by the authorities
concerned and suitable amendments made in the Regulation, if the Central
Government/Medical Council of India/ A.I.C.T.E / Dental Council thinks fit,
which are legally permissible (reservation of seats for rural students may not
be legally permissible in view of the Supreme Court's decision in State of U.P
v. Pradip Tandon,(1975) 1 SCC 267). However, this Court cannot direct the
Government or the authorities to legislate as suggested by Mr.P.P.Rao.

71. Thus in Supreme Court Employees Welfare Association v. Union of India,
AIR 1990 SC 334 (vide paragraph 55), the Supreme Court observed: -
" There can be no doubt that the authority exercising legislative function
cannot be directed to do a particular act."

72. Similarly in Union of India v. Prakash P.Hinduja, AIR 2003 SC 2
612 (vide paragraph 29), the Supreme Court held that the Court cannot direct
legislation.

73. At any event, cancellation of the common entrance test was not the correct or valid method to give redress to the rural students. The common
entrance test is mandatory in view of the Regulations 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 are allowing the writ
petitions on the aforesaid two submissions mentioned above, namely (1) the
impugned G.O violates the Regulations as well as Article 14 of the
Constitution, and (2) it entrenches into an occupied field thus violating
Article 254 of the Constitution.

75. Learned counsels for the petitioners submitted that the
petitioners have already given the extrance examination on 23.04.2005 and the
results have also been declared on 12.05.2005 and the improvement tests have
also been held. Consequently, they submitted that G.O.Ms. No. 184 Higher
Education (J2) Department, dated 09.06.2005 is arbitrary and hence violative
of Article 14 of the Constitution because it was issued at a very late stage
after the aforesaid entrance test was not only held but also the results have
been declared. The students have spent a lot of money and time in preparing
for this entrance test and also the improvement test, and hence all this will
be wasted if the new system comes into force. We need not go into this
question also as we are allowing the writ petitions on the two grounds
mentioned above.

76. We are not inclined to interfere with that part of the impugned G.O which abolishes the improvement test, as the decision is a policy decision which
does not conflict with any statutory rule or regulation nor can it be said to
be shockingly arbitrary in the Wednesbury sense. However, we are of the
opinion that the said abolition should only apply from next year.

77. In Poovizhi v. Government of Tamil Nadu, AIR 2002 Mad 235 = 200
2 (1) MLJ 590, it was observed that a decision can be enforced for the next
year. In view of the aforesaid decision of this Court, we hold that so far as the improvement test is concerned, the abolition is valid but it will come
into effect from the academic year 2006-2007 onwards.

78. We are further of the opinion that the principles observed above
in connection with Medical Colleges will also apply for admission to
engineering and dental colleges. It may be noted that for admission to
engineering colleges also there are AICTE Regulations similar to the Medical
Council Regulations. In exercise of powers conferred by Section 23 (1) of the
Act, the All India Council for Technical Education has prescribed the
following guidelines for admission to students in Engineering and Diploma
courses pursuant to Section 2(o) of the Act, which states 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 held for admissions to be made from the academic year
1995."

In view of the above, the common entrance test is mandatory and not directory.

81. Similar provision is also there with regard to Dental Colleges vide
Dental Council of India B.D.S Course Regulation 1996 which states: -
" Selection of Students:
(a)The selection of students to a Dental College should be based solely on
merit of the candidate and for determining the merit the marks obtained at the
qualifying examination conducted by the Board/ Examining body conducting such
examination, be taken into consideration exception being MBBS degree holders.
(b)In States, having more than one University/Board/Examining Body conducting
the qualifying examination (or where there are more than one Dental College
under the administrative/control of one authority) a competitive entrance
examination may be held so as two achieve a uniform evaluation due to
variation of the standard of qualifying examinations conducted by different
agencies.
(c)A competitive entrance examination is absolutely necessary in the case of
Institutions of all India character."
The above regulation is identical to the one prescribed for admission to MBBS
course. Hence the principles, which we have laid down for admission to
Medical Colleges, will also apply to admission to Engineering colleges as well
as Dental colleges. Hence entrance test is also compulsory for admissions to
engineering and dental colleges.

82. Mr.R.Krishnamoorthy, leaned senior counsel appearing for a
Consortium of Management, submitted that since the 1997 Regulations and other
regulations were framed in pursuance of the decision of the Supreme Court in
Unnikrishnan v. State of A.P. (1993) 4 SCC 111, and since Unnikrishnan's
case has been reversed in T.M.A.Pai Foundation v. State of Karnataka, 2002
(8) SCC 48 it has to be held that the Regulations have ceased to be in force.
We do not agree with this submission. The Regulations only give effect to
Article 14 of the Constitution, and surely it cannot be seriously argued that
Article 14 is no longer in force.

83. As we have already held above, there is clear discrimination if the common entrance test is abolished and only the marks in the qualifying
examination alone are taken, since there are different examining boards
holding examinations for plus two examinations, and they have different
syllabus, 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 the same. Thus, this argument cannot be accepted.

85. In the circumstances we quash G.O.Ms.No. 184 Higher Education ( J2)
Department, dated 09.06.2005 insofar as it relates to abolishing the common
entrance test. However, insofar as the abolition of improvement examination
is concerned, we hold that this is a policy decision and ordinarily this Court
does not interfere with policy decisions (unless they violate some statute or
constitutional provision or is shockingly arbitrary in the Wednesbury sense).
We do not see any violation of any statute or constitutional provision by
cancelling the improvement test, nor do we find it shockingly arbitrary in the
Wednesbury sense. This was only a concession granted to the students who
wanted to improve their marks in the plus 2 qualifying examination at their
risk. However since in this year the improvement examination has already been
held and the common entrance test has also been held, it would not be proper
to cancel the improvement examination for this year, but for the academic year
2006-2007 and onwards the improvement test need not be held by the
authorities, unless they choose to restore it.

86. The writ petitions are allowed with the above observations. No costs.
Consequently, connected miscellaneous petitions are closed.


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27.06.2005
pv/


After the pronouncement of the orders, Mr. K.M.Vijayan, learned
Senior Counsel appearing for some of the petitioners pointed out that as per
the prospectus now issued after the issuance of the impugned Government Order,
the candidates who apply for medical and allied courses will not be in a
position to make their applications based on the marks scored in the Common
Entrance Test as well as the Improvement Test for the academic year 2005-2006.

In view of our order in so far as it related to the cancellation of
the Common Entrance Test and the Improvement Test we direct the respondents
herein to prescribe the necessary procedure to be followed by the concerned
students to enable them to apply as per the erstwhile procedure that was
hitherto in force prior to the cancellation of the Common Entrance Test and
the Improvement Test. The respondents shall carry out the above direction
expeditiously to enable the candidates to apply for the necessary courses.



vu.

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