Madras High Court
Deepak Luther And Anr. vs The Secretary To Government Of Tamil ... on 30 April, 1998
Equivalent citations: (1998)3MLJ639
JUDGMENT E. Padmanabhan, J.
1. The above two writ appeals have been preferred against the common order of the learned single Judge passed in W.P.Nos. 14088 and 14089 of 1997 on 29.10.1997.
2. The appellants herein filed W.P.Nos. 14089 and 14088 of 1997 respectively praying for the issue of a writ of mandamus directing the respondents to permit the petitioners transfer from the colleges presently they are undergoing the second year B.E. degree course (Computer Engineering) in the State of Karnataka to Hindustan College of Engineering, Chennai or to any other college at Chennai, for the third semester B.E. degree course (computer engineering). The reliefs prayed for in both the writ petitions are identical and both the writ petitions were disposed of by a common order. Hence, the writ appeals were also disposed of by a common judgment.
3. The appellants claim that they are physically not well, undergoing treatment and they have to remain at Madras and therefore, they wanted to continue their studies in any one of the engineering colleges in the State of Tamil Nadu. According to the appellants, the College in which they are presently undergoing course and the University concerned have no objection for the appellants moving from the college in the State of Karnataka.
4. According to the appellants, the Director of Technical Education, the second respondent has refused to accord permission and approval for the transfer of the appellants. It is not necessary to elaborate the facts leading to the said writ petitions in detail. It is also to be pointed out that private engineering colleges namely Hindustan College of Engineering and M/s. Sathyabama Engineering College have no objection to admit the appellants respectively in their institution in the particular semester.
5. There is no dispute about the bona fides of the appellants, seek for permission to join the second year of the engineering course in the State of Tamil Nadu on health reasons on transfer from Karnataka.
6. In the counter affidavit filed on behalf of the respondents 1 and 2, it has been stated that the Director of Technical Education can issue transfer order from one engineering college to any other engineering college within the State subject to availability of vacancy in the college requested. For inter-state transfer, the Secretary Higher Education Department. The State of Tamil Nadu is the competent authority to issue transfer orders.
7. It is further stated that candidates seeking admission in the colleges affiliated to the Universities in the State of Tamil Nadu on transfer from other States should inter alia satisfy the eligibility marks prescribed by the Government of Tamil Nadu for securing admission in B.E. course, i.e., they should have secured a minimum of
(a) 60% marks in Mathematics;
(b) 60% marks in Physics;
(c) 60% marks in Chemistry and (a + b + c = 100 marks in aggregate), which are the marks prescribed for open competition.
8. The candidates should have passed all the examinations prescribed by the parent University for the duration of course of study already joined and shall produce documentary evidence to the said effect. Further a no objection certificate from the University to which the transfer is required also should be produced.
9. It is the specific case of the respondents that the writ petitioners had not satisfied the minimum eligibility marks prescribed by the Government for securing admission to the B.E. degree course in the State of Tamil Nadu and that they had not produced no objection certificates from the University of Madras to undergo third semester and in the circumstances, the request could not be complied with.
10. It is further pointed out that transfer of a student is not a matter of right and it is not open to the writ petitioners to move this Court under Article 226 of the Constitution of India. The respondents further stated that earlier orders passed in this respect by the respondents need not be taken as precedent, as in some cases, eligibility criteria had not been taken into consideration, that if the eligibility criterion is not satisfied, the respondents are justified in not permitting the writ petitioners to come on transfer in a college in the State of Tamil Nadu, that permission for transfer cannot be granted beyond the sanctioned in take of students in any college and that the writ petitioners having not satisfied the eligibility criteria for considering their case for transfer, their request could not be entertained, even though they do furnish no objection certificate from the institutions in the States of Tamil Nadu and Karnataka.
11. It is further contended that the writ petitioners cannot claim the transfer as a matter of right just because they obtained a no objection certificate from the colleges in which they are presently undergoing the course or in the college in which they seek admission in the State of Tamil Nadu.
12. One of the contentions that had been raised before the learned single Judge being as to how far the ministers advice or direction is of any legal validity, as the appellants had complained that in spite of the orders of the concerned ministers, the authorities are not acting on the same. The learned single Judge answered the question in the negative holding that if the ministers had passed orders, the authorities can do it only in accordance with law and only if law permits, besides holding that merely on the basis of orders of ministers, no transfer could be effected. This contention was not raised in these writ appeals and the same need not be considered.
13. Mr. V.T. Gopalan, learned senior counsel for the appellants contended that the appellants are eligible to be admitted to the B.E. degree course in the Engineering Colleges in the State of Tamil Nadu, as they have acquired the qualifying marks as fixed by the All India Council for Technical Education and as such, the respondents cannot in law treat them as ineligible for admission. In this respect, learned senior counsel for the appellants relied upon the decision of the Supreme Court reported in State of Tamil Nadu and Anr. v. Adhiyamman Education and Research Institute and Ors. and contended that the provisions of All India Council for Technical Education Act, 1987 and the regulations framed thereunder have to be applied to decide the eligibility of the appellants for admission and the prospectus issued by the respondents will have no legal validity. According to the learned senior counsel for the appellants, as the appellants have secured 60% marks in mathematics, physics and chemistry, they are eligible to secure admissions in any one of the Engineering College in the State of Tamil Nadu.
14. Per contra, it was contended by the learned Special Government Pleader that appellants are not eligible for admission, as the appellants do not possess the eligibility marks prescribed by the State of Tamil Nadu, which is entitled to fix its own norms, and such fixation is valid.
15. The learned senior counsel for the appellants relied upon the order passed by Kanakaraj, J. (as he then was) dated 9.10.1996 in W.P.Nos.8397 of 1996 etc. batch and contended that the appellants possessed requisite marks and they are eligible to be admitted. It is also pointed out that had the appellants waited for some more time even during the relevant year, they would have been admitted in any one of the engineering colleges as sufficient seats were vacant in the relevant year.
16. There is no dispute that All India Council for Technical Education had fixed the norms and eligibility criteria for entrance examinations to be conducted, and had prescribed the minimum marks for admission to the entrance examination and it is not in dispute that the appellants had possessed the marks as prescribed by the said council, However, it is true that the appellants do not possess the marks which the Government of Tamil Nadu prescribed for admission to the B.E. degree course. It is not necessary to go into those controversies in detail, as the law has already been settled by the Supreme Court in State of Tamil Nadu v. Adhiyamman Education and Research Institute .
17. After considering the provisions of the All India Council for Technical Education Act, 1987, the Tamil Nadu Private Colleges (Regulation) Act, the Rules framed thereunder and the provisions of the Madras University Act, the Apex Court held that in terms of Section 10 of the All India Council for Technical Education Act, it is the Council which is entrusted with the power, particularly to allocate and disburse grant to evolve suitable performance the appraisal systems, incorporated norms and mechanisms for maintaining accountability of the technical institutions, laying down norms and standards of courses, curricula, staff pattern, staff qualifications, assessment and examinations, fixing norms and guidelines for charging tuition fee and other fees, granting approval for starting new technical institutions or introducing new courses or programmes, to lay down norms or granting autonomy to technical institutions, providing guidelines for admission of students, inspecting or causing to inspect colleges, for withholding or discontinuing of grants in respect of courses and programmes, declare institutions at various levels and types fit to receive grants to set up or constitute authorities for periodical evaluation with respect to making recommendation regarding recognition or derecognition of the institutions or the programmes conducted by it.
18. It has been further held that in the case of institutes imparting technical education, it is not the University Act and the University, but it is the Central Act and the council created under it which will have the jurisdiction and to the extent the provisions of the University Act are unenforceable in cases of technical colleges like the engineering colleges.
19. It has been further held that the provisions of the University Act regarding all technical institutions like the Engineering colleges and the conditions for grant and continuance of such affiliations by the University, shall, however, remain alternative, but the conditions that are prescribed by the University for grant and continuance of affiliation will have to be in conformity with the norms and guidelines prescribed by the council in respect of matters entrusted to it under Section 10 of the Central Act. The Apex Court while summarizing the discussion, in State of Tamil Nadu v. Adhiyamman Education and Research Institute , held thus:
When there are more applicants than the available situation/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central Authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central Law.
However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be although the applicant satisfies the standards or qualifications laid down by the Central Law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central Authority, the State authorities act illegally.
20. In the present case, we are not concerned with the other portions of the said pronouncement of the Apex Court.
21. On a consideration of the above pronouncement of the Apex Court, it could be held without any contradiction that when there are more applicants then the available seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the said Council. When seats are available and when the State authority denies a seat to an applicant on the ground that he is not qualified according to its standards or qualifications, although the applicant satisfies the standards or qualifications laid down by the said council, such an action by the State is unconstitutional.
22. Kanakaraj, J. (as he then was) had occasion to consider identical question in W.P.Nos.8397 of 1995, etc. batch and held that the prescription by the said council should have precedence over the prescriptions by the State Government and any other interpretation will go against the ratio paid down by the Apex Court in State of Tamil Nadu v. Adhiyamman Education and Research Institute . Shivaraj Patil, J. also had occasion to consider identical question in Maharaja Engineering College v. State of Tamil Nadu W.P.No. 13726 of 1995, where a private self financing engineering college sought for permission to admit students based upon the minimum eligibility criteria as fixed by the said Council and the learned Judge permitted the said college to admit students without exceeding the intake prescribed by the competent authority and subject to the students satisfying the other conditions. We agree with the views taken by Kanakaraj, J. (as he then was) and uphold the view taken by Shivaraj Patil, J.
23. In the light of the above pronouncement of the Apex Court we hold that a candidate, who possesses the marks as fixed by the said council is eligible to be admitted to a technical course in the State when the seats are available. In the present case, it was pointed out that in the relevant year, had the appellants waited for two or more weeks, they would have been admitted in any one of the Engineering colleges in the State and this is not being disputed by the learned Special Government Pleader. Thus, during the relevant year as well as subsequently, the candidates who possess eligibility marks as prescribed by the said council have been admitted at or after a particular date when seats are found available. Thus, when seats are available, the State Authorities cannot deny, in law, seats on the ground that the appellant is not qualified according to its standards or qualification although the individual satisfies the standards or qualifications laid down by the said council and such a condition prescribed by the State cannot be enforced.
24. We further hold that the appellants are eligible to be admitted to the Engineering course in any one of the engineering colleges as they possess the requisite eligible marks as prescribed by the said council and the respondents, contention that the appellants do not possess the eligibility criteria for admission to the technical course in the State of Tamil Nadu cannot at all be sustained.
25. Mr. V.T. Gopalan, learned senior counsel pointed out that the learned single Judge had proceeded as if the appellants seek for lateral admission, while in fact they seek for a migration or transfer from one engineering college in another state to an engineering college in the State of Tamil Nadu after they are being admitted to the B.E. degree course. It is admitted that the appellants have been admitted to the B.E. degree course after their completing +2 course. It is not as if the appellant had undergone diploma course in a polytechnic and after completion of such diploma, the appellants seek for lateral admission to the second year B.E. degree course in an engineering college.
26. The lateral entry system by diploma holder as seen from the prospectus, is totally different and distinct from the request for migration or transfer from one college to another college after being admitted to the regular B.E. degree course, on completion of +2. There is no difference with respect to the eligibility criteria fixed by the said Council in the States of Tamil Nadu as well as Karnataka. The appellants have been belatedly admitted to the engineering degree course in an approved technical institution and this is not being disputed. In fact, the learned single Judge proceeded on the assumption that the appellants are seeking admission to the second year course or their year course of Engineering Degree which is a lateral admission. We are unable to agree with the said view expressed by the learned single Judge and dismissing the writ petition on that score.
27. In this respect, it is relevant to refer to the guidelines framed by the said council for admission to engineering degree course and engineering diploma course. In the guidelines, which have been issued in exercise of powers under Section 23(1) of the Central Act 52 of 1987 the said council has fixed the qualification for admission for general category of students to the engineering degree programmes. As per the said guidelines, the minimum qualification for admission to engineering degree programmes should be a pass in the 10 + 1 higher secondary examination with a minimum aggregate of 60% marks in physics, chemistry and mathematics obtained in a single sitting. The minimum qualification for admission of SC/ST students to a degree programme in Engineering being a pass in 10 + 2 senior secondary examination with a minimum aggregate of marks in physics, mathematics and chemistry as prescribed by the respective State Governments.
28. Guidelines No. 3 enables the authorities to conduct entrance tests common to all degree institutions in the State, and all the students, who have passed the qualifying examination are permitted to appear in the entrance test. Clause 5 of the said Guidelines relates to lateral entry to engineering degree programme. The said Clause 5 and also Clause 6, which are relevant, are extracted hereunder;
Lateral Entry to Engineering degree programme. Although engineering diploma programmes are conceived of as terminal, in nature, some flexibility has to be built into enable the meritorious amongst diploma holders to obtain engineering degrees. There is evidence of diploma holders pursuing an engineering programme having performed well not only in their academic careers but also in their jobs.
Clause 6: A student who has acquired a diploma in engineering through a minimum of three years of institutional study after 10 + 2 (secondary school leaving certificate examination) can be considered to be academically equivalent to a student who have passed the first year of a four year engineering degree programme for which the qualifying examination is not the + 2 level. Lateral entry for diploma holders will be allowed at the second year third semester level seats in addition to the sanctioned in take at first year limited to a maximum of 10% will be reserved for such students.
29. On a consideration of the said statutory guidelines prescribed by the said council, there is no doubt that the appellants herein are not seeking for lateral admission and as such, the conditions prescribed for such lateral admission cannot be emphasised nor it can be enforced with respect to the appellants who seek for transfer from engineering degree programme which they are already undergoing in a recognised institution in the State of Karnataka to a recognised institution in the State of Tamil Nadu.
30. The view of the learned single Judge that the appellants are to be treated as candidates seeking lateral admission is not correct and clauses 5 and 6 of the said guidelines framed by the said Council which are statutory provisions, will have no application to the case of the appellant. The view that the appellants do not possess the eligibility criteria expressed by the respondents as contended by the respondents and which had been accepted by the learned single Judge, in our considered view, cannot be sustained as it is not a case of lateral admission, but it is a case of transfer from one institution to another institution where a candidate undergoes engineering degree programme.
31. It was also pointed out by the learned senior counsel for the appellants that neither the State Government nor the Director of Technical Education has published a Notification fixing the eligibility criteria or other guidelines or stipulations with respect to migration of students undergoing Engineering Degree Programmes from one college to another college in two different States or from one college to another college in the same State or under two different Universities and as such, the respondents are not at all justified in denying the admissions applied for by the appellants.
32. On this question, the learned Special Government Pleader was unable to answer as to whether any Notification has been issued fixing the eligibility criteria or any other stipulation by the State Government, for transfer or migration of students undergoing engineering degree programme. The learned Special Government Pleader took time and on instructions, represented that no such Notification had been issued nor any minimum standards have been prescribed with respect to transfer of students undergoing the B.E. degree course from one Engineering college to another engineering college even in any other State or in the State of Tamil Nadu. In the absence of any Notification or criteria fixed by the State Government, the respondents cannot at their whims and fancies decline admission to the appellants for the second/third year Engineering courses when the colleges concerned are willing to admit them and when seats are available for accommodating the appellants. There is no quarrel that seats are lying vacant and the private colleges are willing to admit the students for the courses applied for by them. The colleges in the State of Karnataka where the appellants are undergoing courses have no objection so also the University at Karnataka.
33. The standing counsel for the University of Madras drew the attention of this Court to the Regulation/Ordinance framed by the University with respect to migration of candidates to any other University to a college within the Madras University area. The standing counsel further represented that the University has no objection for granting the requisite no objection certificate once the candidate satisfies Chapter XXXV of the University ordinance governing the admission to courses of study.
34. It is represented by the learned senior counsel for the appellants that the appellants do satisfy the conditions prescribed by the University. However, we are not going into this aspect of the matter and it is for the University to satisfy itself.
35. Learned senior counsel for the appellants drew the attention of the court to various Government orders where admission to students from colleges have been permitted to join' engineering colleges in the State of Tamil Nadu and contended that the denial of permission to the appellants is discriminatory and the respondents are estopped by conduct This question need not be gone into as we have already held that the appellants do possess the eligible marks for admission to the engineering degree course in the State of Tamil Nadu and they are eligible to be admitted in the engineering degree course and we also have negatived the contention raised by the Special Government Pleader as well as Director of Technical Education in this respect.
36. The writ petitions have been filed during the month of September, 1997 and the writ petitions were disposed of by the learned single Judge on 12.10.1997. The writ appeals are being disposed of now only. In the interregnum, the appellants have already continued the second year engineering degree programme. It is further represented that the appellants have completed subsequent semester and also passed the examinations. That being the factual position, it is well open to the appellants to seek admission to the third year or such semester in engineering degree programme in any one of the engineering colleges in the State of Tamil Nadu and the first respondent is directed to accord requisite permission to enable the appellants to join the engineering degree programmes in the third year or fourth year B.E. degree course as applied for by the appellants in the colleges which they have selected and which colleges have offered seats to the appellants in that particular course and pass orders within six weeks from today.
37. The appellants are directed to submit the requisite representations to the second respondent as to the course or semester or year to which they seek admission and the second respondent shall forward the same to the first respondent within ten days from the date of submission of representation and the first respondent shall pass orders within six weeks from today. The third respondent University, as already pointed out, cannot have any objections as it is fairly stated by either side that the appellants do satisfy the requirements prescribed by the University for migration and the University shall also issue necessary no objection certificate.
38. In the circumstances, the order of the learned single Judge is set aside and the writ petitions are allowed as prayed for with the above directions. No costs.
39. Before parting with the case, we deem it essential to point out that for the future at least the State Government shall issue Notification fixing the requisite minimum eligibility criteria for migration from one University to another University or from one college to another college or from any other State to the colleges in this State. Such a Notification would serve the interests of all concerned and such controversy could be well avoided.
40. The writ appeals are allowed as directed above but without costs.