Kerala High Court
Kerala Self-Financing Engineering ... vs Admission Supervisory Committee For ... on 7 June, 2007
Equivalent citations: AIR2007KER220, AIR 2007 KERALA 220, (2007) ILR(KER) 3 KER 22, (2007) 3 KER LT 136, (2007) 2 KER LJ 453
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, Antony Dominic
JUDGMENT K.S. Radhakrishnan, J.
1. Question that is posed for consideration in this case is whether the managements of various unaided Engincering Colleges can devise their own method of admissions to the Engineering Courses in their colleges for the year 2007-08 by adding marks obtained by the candidates in the Entrance Examination conducted by the Commissioner for Entrance Examination with the marks obtained by the candidates in Physics, Chemistry and Mathematics in the Plus-two qualifying Examination.
2. Learned single Judge referred the matter for consideration by a larger Bench in view of the ruling of the Division Bench in Lisie Medical & Education Institution v. State of Kerala 2007 (1) KLT 409 setting aside Section 3 of Act 19 of 2006 which insisted on admissions only from the rank list prepared on the basis of the State Entrance Examination. Proposals were made by the petitioner before the Admission Supervisory Committee for adding the marks obtained by the candidates in the qualifying examination with that of the Entrance Examination following an equalisation method for rationalisation. Committee which was constituted under Section 4 of Act 19 of 2006 expressed the view that since this Court has struck down Section 3 of Act 19 of 2006, the admissions to self financing professional colleges have to be governed by the decisions of the Supreme Court including the decisions in Inamdar v. State of Maharashtra and Mridul Dar v. Union of India . Admission Supervisory Committee took the view that as per the judgment in Inamdar's case the management can either select the students by conducting a Common Entrance Test by the consortium of all the Private Engineering Colleges or from the list prepared by the Commissioner for Entrance Examination. Management submitted a detailed reply by their letter dated 12th March, 2007. Reference was made to the decision of the Apex Court in T.M.A. Pai Foundation case and stated that every Private Unaided Institution has the right of a rational selection which it devises for itself. The only requirement or control is that the rules for the admission should be subject to the rules of the university as to eligibility and qualification. Further it was also pointed out that the Private Unaided Colleges have the right to admit students of their choice subject to an objective and rationale procedure of selection. Admission Supervisory Committee however, passed an order dated 21-3-2007 stating that in order to determine the merit of the candidates there is a recognised State authority in the State of Kerala viz., State Entrance Commissioner and he prepares the rank list every year on the basis of merit of the students as obtained in the Entrance Test. Therefore the managements can adopt the procedure of selecting the students for admission from the rank list prepared by the State Entrance Commissioner for the seats set apart for management. Further it was also pointed out that once the merit of the candidate is determined in a competitive examination it cannot be denied or curtailed by a process of adding marks obtained in the qualifying examination. It was also stated that the method of addition of marks suggested by the petitioner cannot be said to be fair, transparent and merit based. Further it was also stated that equating the marks obtained by candidates in qualifying examinations in Standard X and XII without working out equivalence among the different Boards conducting the qualifying examinations, cannot be treated to be a safe or prior method. Committee therefore directed the managements of Engineering Colleges to adopt the procedure for selection of students to the Engineering Course for the academic year 2007-08 from the rank list prepared as per the result obtained in the Common Entrance Test conducted by the State Entrance Commissioner.
3. Senior counsel appearing for the petitioner attacked the above mentioned order on various grounds. Counsel submitted that this Court has already tested the validity of Section 3 of Act 19 of 2006 in the light of T.M.A. Pai Foundation's case AIR 2003 SC 355, Inamdar's case AIR 2005 SC 3226 and Islamic Academy of Education's case AIR 2003 SC 3724 and struck down that provision and hence respondents cannot contend that the respondents have got power to insist that managements should admit students only on the basis of the marks obtained by the candidates in the Entrance Examination Test conducted by the State. Counsel also referred to the report of Justice K.T. Thomas Committee and submitted that the Committee has approved a system of selection for Engineering Colleges taking into consideration the marks obtained by the candidates for the CET conducted by the State, marks for the concerned subjects in the qualifying examinations and marks for interview. Counsel submitted that the petitioner is willing to drop the element of interview as a component to assess merit and also the marks obtained by the candidates for the concerned subjects in Standard X. Counsel further submitted that by adding the marks obtained by the candidates in the CET conducted by the State as well as the marks obtained by the candidates for Physics, Chemistry and Mathematics in Plus-two the management could properly assess the merit of the candidates. Counsel submitted, adding of marks for the previous examinations will act as an equalising factor and this has been considered as a better method by various reputed educational institutions in the country. Counsel submitted, many of the students from rural areas normally would not be able to prepare for the entrance test effectively due to lack of proper coaching for the examination and the marks obtained by the candidates in the Entrance Examination alone is not a proper indication of their merit. Further counsel submitted that if the proposal made by the petitioner is accepted it will help the rural middle class and poor students to get admission on the basis of their academic performance. Further counsel submitted that an equalisation method will also be adopted. Counsel referred to a Division Bench judgment of the Madras High Court in Minor S. Aswin Kumar v. State of Tamil Nadu 2007 (2) CTC 677 and submitted that in the State of Tamil Nadu the entrance examination has been completely dispensed with and admissions to Engineering Colleges are made on the basis of the marks obtained in the qualifying examination.
4. Learned Advocate General appearing for the second respondent submitted that even though Section 3 has been struck down by this Court, still the findings of the Supreme Court in Mridul Dhar v. Union of India is binding on the management and that the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode. Learned Advocate General submitted that equating the marks obtained by candidates in qualifying examinations in Std. X and XII without working out equivalence among the different Boards conducting the qualifying examinations cannot be treated to be a safe or proper method. It is also pointed out that once the merit of the candidate is determined in a competitive examination it cannot be denied or curtailed by a process of adding marks obtained in the qualifying examination. Learned Advocate General also referred to a Division Bench decision of this Court in John Andrew v. State of Kerala, Kerala Unreported Cases, page 1 and highlighted the importance. In the common entrance examination for admission to the Engineering Colleges as well as to the Medical Colleges.
5. We have to test the validity of Ext. P7 issued by the first respondent in the light of the Division Bench judgment of this Court in Lisie Medical Institutions's case (supra) wherein this Court has struck down Section 3 of Act 19 of 2006 holding that the provision is ultra vires Constitution and illegal. For easy reference we may extract Section 3 of Act 19 of 2006.
3. Method of admission in Professional Colleges or institutions--Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any Court or any other authority, admission of students in all professional colleges or institution to all seats except Non-resident Indian seats shall be made through Common Entrance Test conducted by the State followed by centralised counselling through a single window system in the order of merit by the State Commissioner for Entrance Examinations in accordance with such procedure as may be specified by the Government from time to time.
Division Bench of this Court in Lisie Medical & Education Institution's case has examined the validity of Section 3 in the light of the decision of the Apex Court in T.M.A. Pai Foundation's case AIR 2003 SC 355, Inamdar's case AIR 2005 SC 3226 and Islamic Academy of Education's case and held as follows:
Section 3 is a complete take over of the admission procedure thus completely annihilating the right of the institutions, minority or non-minority, but unaided, which would be in violation of Articles 19(1)(g) and 30(1) of the Constitution of India. There is no other conclusion which can be drawn from the various judgments relied upon by the learned Counsel representing the parties referred to above. In so far as the emphasis on the sentence in para 137 that if the admission procedure so adopted by a private institution or group of institutions fails to satisfy all or any of the triples tests, it can be taken over by the State substituting its own procedure, we may again mention that reliance of the learned Counsel is by completely ignoring the reference and context of such sentence. It is clearly mentioned in the beginning of para 137 as laid down in Pai Foundation that managements of minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to its being fair, transparent and non-exploitalive. The same principle also applies to non-minority institutions. The State also, no doubt, can provide a procedure of holding common entrance test, but the right of the State is only to provide a procedure'. No doubt, the Government can regulate the procedure of holding a common entrance test, to vouchsafe fair and merit based admissions and to prevent mal-administration, but the test as such can be taken over by the State only if the institutions may fail to satisfy the triple test, by substituting its own procedure. It is, thus, in the case of failure of the institutions to hold examination with the triple test that, the State can take over the procedure. That is the only exception provided with regard to right of minority to have their own admission.
We may in this connection refer to paragraph 40 of T.M.A. Pai Foundation's case :
Any system of student selection would be unreasonable if it deprives the private unaided institution of the right' of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection based on principle of fairness.
In paragraph 43 after referring to the decision of the Apex Court in Minor P. Rajendran v. State of Madras , Apex Court held that the observations in that case clearly underscore the right of the colleges to frame rules for admission and to admit students and the only requirement or control is that the rules for admission must be subject to the rules of the university as to eligibility and qualifications. In this connection reference may also be made to the decision in Islamic Academy of Education's case (supra). Paragraph 171 of the judgment states that it does not rule out any other method for determining the merit which may also include marks obtained in qualifying examination.
6. We have also gone through the decision of the Apex Court in Mridul Dhar's case (supra). One of the questions raised in that case was whether the All India quota or MBBS/BDS courses should be increased from its present 15% and also with regard to the question of giving full effect to the 15% quota by including all seats while working out 15% quota and also with regard to the time schedule by the State Colleges and Institutions. While examining that question in sub-paragraph 13 of paragraph 35 it is stated that for granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode. So far as this case is concerned senior counsel submitted that they are not awarding any marks for the interview, at the same time, they are adding the qualifying marks also to the marks obtained by the candidate in the entrance examination. The proposals made by the Association are stated hereunder:
1. All candidates, except NRI (15% of the total seats), will have to appear for the State CET. Along with the marks obtained by the candidates in the CET. the marks obtained by the candidates for Physics, Chemistry and Maths for Stds. X and XII also will be added. This will ensure the candidates consistent academic performance also."
2. Rank list will be prepared from the applications received in each college before the last date fixed for the purpose, purely on the basis of merit, computing the above 2 components and admissions will be strictly in the order of merit.
3. The admission process detailed above will also help the rural middle class and poor students to get admission on the basis of their academic performance.
4. Seat will be reserved in each college for SC/ST/OBC candidates. Minority Institutions will be free to set apart, appropriate percentage of seats to their community candidates, selection of whom will also be strictly on the basis of merit, as mentioned above.
Petitioner as we have already indicated has stated that the marks obtained for Physics, Chemistry and Maths in Plus-two alone will be counted along with that of the Entrance Examination and not of Standard X. Further no marks will be added for interview. We are not prepared to say that the proposal suggested by the petitioner as modified is unfair or irregular or unscientific at this stage in the absence of any challenge as such especially when this Court has struck down Section 3 of Act 19/2006 which insisted that the admissions to all professional colleges or institutions shall be made through Common Entrance Test conducted by the State Government. When the State Government cannot insist this, we fail to see how the Admission Supervisory Committee constituted under Section 4 of Act 19/2006 can insist so. Further the Division Bench also held that complete take over of admission procedure and thus completely annihilating the rights of the institutions, minority or non-minority but unaided, would be violative of Article 19(1)(g) and Article 30(1) of the Constitution of India. Petitioner can therefore devise an admission procedure which is fair, transparent, merit based, non-exploitative.
7. We may in this connection quote with approval the reasoning of the Division Bench of the Madras High Court in Minor S. Aswin Kumar's case (supra).
Abolition of Common Entrance Test does not have the ipso facto effect of lowering the standard. The only effect is that selection is not based on a common platform and therefore vulnerable to the attack based on the Principle of Equality. The vulnerability has been overcome by equalisation. As a matter of fact, the basic conclusion in both the Division Bench decisions is that without common Entrance Test the Principle of Equality would be offended. Even the object of Common Entrance Test (without even a minimum pass mark) is only to ensure equality and not minimum merit. If equality can be achieved up to a reasonable level by any another method, no objection can be sustained. Absolute equality is a myth, even when Common Entrance Test is held because of the inherent possibility of ticking some answers more by guess as in KBC T.V. programme rather than by any conscious selection of the right answer.... There is no doubt that the provision contained in Section 5 of the Act has been incorporated with a view to equalize the marks obtained by different students passing from different Boards or authorities. Even though the basic assumption that the students securing highest marks in a particular subject in the examinations held by different Boards are of equal standard may appear to be artificial, it cannot be said that such conclusion, which forms the basis for normalization, is so arbitrary as requiring interference by the Court on the ground of violation of Article 14 of the Constitution of India. It may be that the method suggested or projected by the Senior Counsel for the petitioners may be better method, but it is not for this Court to sit in judgment over the wisdom of the legislature in prescribing a particular method, fairly submitted by the Additional Advocate General there is always scope for change and improvement in future and the State Government can examine the possibility of incorporating any other method in future by consulting experts in the line. However, we are unable to come to the conclusion that the method presently envisaged is patently arbitrary requiring intervention by the Court.
Since Section 3 of Act 19 of 2006 has been struck down by the Division Bench of this Court the State insist that admission of students to professional colleges or institutions except non-resident Indian shall be made only through the common entrance test conducted by the State. If the State cannot enforce Section 3 of Act 19 of 2006, we fail to see how the Admission Supervisory Committee which was constituted under Section 4 of the Act could indirectly enforce Section 3. Further Sub-section (6) of Section 4 of Act 19 of 2006 authorises the Admission Supervisory Committee only to supervise and guide the entire process of admission of students to the unaided professional colleges or institutions and they cannot insist that the petitioner shall not add marks obtained by the candidates in the qualifying examination for determining the merit of the candidates. We are informed though State has filed an SLP before the Supreme Court against the above judgment of the Division Bench no stay has been granted against the operation of the judgment of this Court.
8. Common Entrance Test as held by this Court in John Andrew's case was devised primarily with a view to provide for a common platform to ensure equality among candidates rather than to keep up a particular standard. Failure to follow the CET alone cannot have the effect of lowering the standard. One factor which projects for favouring the CET is that it will maintain the principle of equality but by following a rational method of equalisation, principles of equality can be maintained and a plea of violation of Article 14 is liable to be repelled. Necessarily the petitioner has to evolve a rational of equalisation for the purpose of achieving the object of equalising the standards of students who come out of examination conducted by various Examination Boards like CBSC, ICSE, Plus-two etc. so that the apprehension voiced by the respondents that equalising the marks obtained by the candidates in various examination would be unscientific, unfair, etc, would be met.
9. Petitioner has evolved a method of adding marks obtained in the qualifying examination for Physics, Chemistry and Mathematics with the marks obtained by the candidate in the CET. The Admission Supervisory Committee has the power under Sub-section (6) of Section 4 of Act 19/06 to supervise and guide the process of admission adopted by the petitioner. With a view to ensure that the process devised by the petitioner would be fair, transparent, merit based and non-exploitative. But once Section 3 of Act 19/06 has been struck down, the Admission Supervisory Committee cannot insist that the only safe and sure method to admit student is through CET. Under such circumstance we are inclined to allow the writ petition and quash Ext. P7 order.