Madras High Court
Vinayaka Mission'S Kirupananda ... vs The Tamil Nadu Dr. Mgr Medical ... on 27 April, 2005
Equivalent citations: 2005(2)CTC772
ORDER K.P. Sivasubramaniam, J.
1. In these batch of writ petitions, the correctness or otherwise of the petitioner institutions having admitted the students for medical courses under the Management Quota requires to be considered.
2. In terms of the Regulations of the Medical Council of India (M.C.I.), eligibility for admission into First year M.B.B.S. Course is a pass in the +2 examination with specific subjects and obtaining a minimum of 50 marks in Physics, Chemistry and Biology. The State Government, in their orders in G.O.Ms. 100, Health and Family Welfare Department dated 14.5.2003, issued directions prescribing higher percentage of marks for eligibility for all the unaided institutions to be followed for admission of students for Academic Year 2003-2004. The Government Order contemplates increase in the minimum marks for eligibility, namely 60% for Open Category and Backward Class, 55% for Most Backward Class and 40% for Scheduled Caste. Admissions which were contrary to the said Government Order as against Management Quota were treated as impermissible and illegal by the State Government and Tamil Nadu Dr. M.G.R. Medical University (hereinafter called the University).
3. W.P.No. 21891 of 2004 is filed by one of the Institutions/Management, which had admitted 11 students contrary to the Government Order, seeking to quash the proceedings of the University dated 21.5.2004 directing the discharge of those 11 students.
4. In W.P.No. 22077 of 2004, is by one student who was admitted by the P.S.G. Medical College, Coimbatore, and he has sought for the same relief.
5. In W.P.No. 22167 of 2004, the said 11 students pray for a Mandamus to direct the University to register them for the Academic Year 2003-2004 on the basis of the eligibility criteria as fixed by the M.C.I., and to permit them to continue the course.
6. W.P.No. 1965 of 2005 is filed by another college at Vadakkankulam for quashing G.O.Ms.No. 100, Health and Family Welfare Department dated 14.5.2003 and the consequential order dated 5.1.2005 insofar as it related to the refusal by the University to register the 22 candidates on the ground that they did not satisfy the minimum marks in terms of G.O.Ms.No. 100 and to permit them to take the examination in the B.D.S. Course,
7. Mr. R. Krishnamurthy, learned Senior Counsel appearing for the 11 students in W.P.No. 22167 of 2004, contends that the students were admitted for academic year 2003-2004 and their admission was perfectly justified in terms of the M.C.I. Regulations. When they were admitted, there was also an order of interim stay of the impugned order. The Institution in which they were admitted is a Deemed University and a minority institution and the admission was also made only as against Management Quota. After referring to the judgment of the Supreme Courts in T.M.A. Pai Foundation case, 2002 (5) CTC 201 : 2002 (8) SCC 481, reliance was placed on Question No. 4 and the answer given thereon relating to the minority institutions, aided or unaided. The Supreme Courts held that such institutions cannot be regulated by the State or the University. It is further contended that in a subsequent judgment also, namely, Islamic Academy of Education case, 2003 (3) CTC 719 : 2003 (6) SCC 697, while dealing with the same issue, a Constitution Bench reiterated the same view.
8. Learned Senior Counsel further contends that the students were also not made aware of the Government Order and the correspondence between the College and the University. The students, therefore, cannot be blamed for any error which the college might have committed in the matter of directions by the University. In terms of M.C.I., qualifications, they were qualified and there was no proper announcement regarding the conditions of qualifications newly laid down by the Government or the University. In the controversy between the various authorities, the students should not be victimised and their precious period of life and professional study cannot be dealt with lightly.
9. Mr. M. Venkatachalapathy, learned Senior Counsel representing the student who was admitted into a private Institution at Coimbatore, after adopting the submissions of Mr. R. Krishnamurthy, contended that the student had been admitted on 12.5.2003, whereas, G.O.Ms.No. 100 was issued on 14.5.2003. He would also refer to the judgment of the Supreme Courts in State of Tamil Nadu v. S.V. Bratheep and Ors., 2004 (2) CTC 227 : 2004 (4) SCC 513, and rely on the observations in paragraphs 4 and 14 of the judgment dealing with admissions already made in the background of the conditions in which they were admitted pursuant to the norms issued by the High Courts and that they need not be disturbed. Learned Senior Counsel also contended that the cancellation of their admission will not enure to the benefit of anyone.
10. Mr. Satish Parasaran, appearing for the College which had admitted 11 students, made elaborate submissions regarding the legality or the binding nature of G.O.Ms. No. 100 and the directions of the University. In his interpretation of the judgment in T.M.A. Pai Foundation case, 2002 (5) CTC 201 : 2002 (8) SCC 481, the rights of the minority institutions were clearly protected and referred to the Question and the Answer No. 4. Referring to Bratheep's case, learned counsel contended that in these cases admissions were over in 2003 itself and therefore, cannot be set aside as a result of G.O.Ms.No. 100.
11. In an attempt to question the legality of the higher qualifications prescribed by the University, learned counsel contended that the field of prescribing the qualifications was already occupied by the M.C.I. Regulations and hence, it is not open to the State or the University to prescribe higher qualifications. Reference was made to the judgment in Dr. Preeti Srivastava v. State of Madhya Pradesh and Ors., 1999 (7) SCC 120. That was a case in which the State of Madhya Pradesh held an entrance examination for Post Graduate Medical Courses. In terms of the Rules by the M.C.I., the cut-off percentage was 45% marks for admission of General Category students under Open Category and 35% for Scheduled Caste candidates. By a Government Order dated 31.8.1995, the State Government completely dispensed with the cut-off percentage for the reserved category. The validity of the said Government Order was questioned in Dr. Sadhana Devi v. State of Uttar Pradesh, 1997 (3) SCC 90. In that case, the Supreme Courts struck down the Government Order. The State Government subsequently moved an application praying that the Government should be given liberty to reduce the cut-off percentage from 30% to 20%, for the reserved category. But even before a decision was given by the Courts, an ordinance was passed by the Government to the said effect. In Dr. Preeti Srivastava's case, the validity of the said order was questioned. The majority held that the State does not have the power to reduce the qualifying marks for the reserved category and the order of the State Government was set aside.
12. Mr. Satish Parasaran sought to lay emphasis on the observation that the power of the State authorities would be available only if the field is not occupied by Central Legislation or Regulation. Therefore, according to him, though the minimum criteria had been fixed by M.C.I. Regulations, it is not open to the State Government or the University to fix further criteria, thereby rendering the M.C.I. Regulations inoperative. M.C.I., has not only prescribed the minimum marks, but also what should be the maximum marks. He also referred extensively from the judgment in T.M.A. Pai Foundation case, 2002 (5) CTC 201 : 2002 (8) SCC 481, in support of his various contentions. It was further contended by him that admissions already made prior to the issue of the Government Order cannot be affected.
13. Mrs. Saraswathi Prasad appearing for the Management in W.P.No. 1965 of 2005, contends that the Institution is recognised as a minority institution. According to her, students were admitted for 2003-2004 and the admissions were over by March/April of 2003. Regulations made by the Dental Council of India required only 50% of the total marks in English and Science subjects taken together and in the Competitive Entrance Examination. The admitted students satisfied the said criteria. Reference was also made to the Regulations for B.D.S. Course issued by the University in terms of which, the minimum marks is shown only as 50% marks on aggregate. It was amended only very much subsequent to G.O.Ms.No. 100. Reference was made to the observations of the Supreme Courts in State of Tamil Nadu v. Adhiyaman Institute, 1995 (4) SCC 104. Learned counsel contends that it is only when there are more applicants than the available seats, the State authority was not prevented from laying down higher standards and such an action cannot be termed as violation of Entry 66 of the Union List. But if seats are available and an eligible candidate is denied admission on the ground that the candidate was not qualified according to its own standards, then the action of the State would be illegal. Moreover, this is not a case of filling up of vacancies as against Government Quota over which the Government can have a say, but the seats relate to the Management Quota for which the State Government cannot prescribe any qualification over and above the M.C.I. qualifications.
14. Mr. A.L. Somayaji, learned Additional Advocate General appearing for the State Government, contended that in the first three writ petitions, the validity of G.O.Ms.No. 100 was not questioned. G.O.Ms.No. 100 is substantially the same as the Government Order which came to be issued and upheld by the Supreme Courts in Bratheep's case. There is no basis for the contention that the Government Order would apply only to Government Quota. Bratheep's case also dealt with Management Quota only. In fact, the impugned Government Order in that case was issued by the Government only on the request of the private colleges to lower the criteria in order to fill up the vacancies. Reference was also made to some of the observations in Dr. Preeti Srivastava's case, which would be dealt with below. Learned Additional Advocate General also contended that the plea that once students had been admitted they should be allowed to continue their course, had been deprecated by the Supreme Courts on several occasions.
15. Mr. Vellaisamy, appearing for the University, contended that the conduct of the petitioner Institutions having admitted the students even after specific directions by the University not to do so, cannot at all be accepted. In W. P.No. 22077 of 2004, the student was not eligible to be admitted as on the date when he is stated to have been admitted.
16. In the counter affidavit filed by the University, details regarding the existing minimum eligibility marks prescribed for Medical and Dental courses in the Government/unaided non-minority and unaided minority institutions had been given. It is further stated that pursuant to the orders issued by the Government of Tamil Nadu in G.O.Ms.No. 100, the University, by letter dated 24.5.2003, informed all the private Medical and Dental Colleges, including the petitioner colleges, about the guidelines framed for admission of the candidates for the seats under Management Quota for, the Academic Year 2003-2004 and directed them to follow and implement the said guidelines strictly. Therefore, all the colleges had been duly informed about the minimum eligibility criteria. When the applications of the candidates were received for the issue of eligibility certificates and were examined by the University, they were found to be not eligible and they were informed so. The petitioner college in W.P.No. 21891 of 2004 was also informed by the University by their letter dated 16.10.2003 to abide by the Government Order.
17. It is further stated that in Resolution No. II passed on the 25th Meeting of the Standing Academic Board held on 25.6.2003, it was resolved to adopt the guidelines regarding the minimum eligibility prescribed for admission for the Academic Year 2003-2004. The meeting of the Board of Studies which was held on 12.11.2003, also recommended to the Academic Board for due amendment. The Academic Board, in its 26th Meeting held on 16.12.2003, also approved the necessary amendments. It is true that there was correspondence between the petitioner College and the University and the University had consistently and categorically stated that the admissions have to be based on the minimum prescribed qualification and also to discharge the 11 ineligible candidates immediately. It is also clear that the said 11 students had been admitted in spite of the directions of the University.
18. The issue relating to the petitioner Colleges having admitted students in violation of the directions of the University was placed before the Governing Council in its 135th Meeting held on 20.7.2004 and the Governing Council, after considering the issue, unanimously decided to refer the matter to the Government and if the Government decides to relax the marks prescribed by them for admission as a one-time measure, then, they can continue their study. However, the Secretary to Government, by his letter dated 30.7.2004, had informed that the State Government had decided not to accept the request for relaxation of the minimum eligibility marks. The University further contends that the action of the State Government fixing higher eligibility criteria was perfectly legal. Admittedly, the 11 candidates in respect of whom the impugned order had been passed, do not satisfy the eligibility criteria fixed by the Government. Their admission was also only after the issuance of the Government Order.
19. In reply, Mr. R. Krishnamurthy, learned Senior Counsel, contends that the students knew only about the minimum standards fixed by the Medical Council of India and there was no way of the students knowing about the higher qualifications fixed by the State Government.
20. Mr. M. Venkatachalapathy, learned Senior Counsel, contended that the petitioner had appeared for the entrance test. He would also state that considerations for filling up the Management Quota should be different.
21. Mr. Satish Parasaran, by referring to the judgment in Union of India v. Chajju Ram and Ors., 2003 (2) CTC 626 : 2003 (5) SCC 568, contends that a decision is an authority only for what it decides and not what can logically be deduced therefrom and that it was equally well settled that a little difference in facts or additional facts may lead to a different conclusion. In the said background, he contended that the judgments of the Supreme Courts relied upon by the Government and the University have to be reconciled. The qualification for admission is an occupied field and the right of the State Government or the University to prescribe higher qualification would arise only in the absence of any criteria by M.C.I., A.I.C.T.E., D.C.I., etc. In Adhiyaman's case, 1995 (4) SCC 104, the Supreme Courts had positively held that the State Government and the University may lay down norms and standards, but cannot be higher than or be in conflict, if that is laid by the Council under the Central Act. Reference was also made to the factual matrix of Dr. Preeti Srivastava's case and the learned counsel contended that it was a case of completely giving up of the qualifying criteria with reference to a particular category of students. In paragraph 49 of the judgment, the pleading, in that case has been reflected and the respondents (State) had contended that no standards were laid down by M.C.I., and even the standards which had been laid down were only directory and not mandatory. Reference was also made to, the observations in the concluding paragraph emphasizing that the power of the State authorities can be exercised only if the field was not occupied. Learned counsel also referred to Paragraphs 6 and 7 of the counter affidavit of the University and pointed out that the amendment itself was proposed only on 25.6.2003 and necessary measures were approved only on 16.12.2003, by which time, admissions had already been completed.
22. Mr. M. Venkatachalapathy, learned Senior Counsel, referred to the provisions under the Tamil Nadu Dr. M.G.R. Medical University Act and contended that the qualifications could be prescribed only for admission under Government Quota and not as regards Management Quota. Learned counsel also states that neither the decision of the University nor G.O.Ms.No. 100 were gazetted.
23. Learned Additional Advocate General, while dealing with the contention that the Government Order had not been gazetted, contended that there was no necessity to gazette the Government Order and the non-publication will not stand in the way of its applicability and enforceability. It was clear from the counter affidavit of the University that the Government Order had been brought to the notice of the Colleges well in advance and admissions were resorted only after specific directions by the University to conform with the qualifications prescribed under G.O.Ms.No. 100.
24. I have considered the submissions of all the learned counsel.
25. One of the contentions raised on behalf of the respondents is that the validity of G.O.Ms.No. 100 had not been questioned by the petitioners. However, it is seen that in W.P.No. 1965 of 2005, the validity of G.O.Ms.No. 100 has been questioned and also the petitioner in W.P.No. 21891 of 2004 had filed W.P.M.P.No.......of 2005 for amending the prayer and to include a prayer to quash the Government Order. Therefore, the following points arise for consideration:
(i) The validity of G.O.Ms.No. 100, Health and Family Welfare Department, dated 14.5.2003;
(ii) Whether the State Government has the power to prescribe qualifications higher than as prescribed by M.C.I., D.C.I., A.I.C.T.E., etc.?
(iii) Whether the higher qualifications prescribed by the Government would apply only to seats under Government Quota ?
(iv) Assuming that the State Government and the University have the power to prescribe higher qualifications, whether the admissions made in these cases under dispute could be sustained for any reason ?
26. Point Nos. 1 & 2.-- Both these issues are intermingled and go together, The only basis on which the power of the State Government or the University to prescribe additional or higher qualifications is questioned is that when the professional course is governed by Central Regulations and the qualifications are prescribed by the Governing Bodies like M.C.I., D.C.I. and A.I.C.T.E., it becomes an occupied field under the Central Legislation. With the enactment of the Indian Medical Council Act, 1956, under Entry 66 of List I of Schedule VII of the Constitution, the power of the State Government or the University to prescribe any Regulation in the matter of qualification for admission into Medical Colleges is stated to be taken away and hence, G.O.Ms.No. 100 is invalid. The petitioners seek to place strong reliance on the observations contained in State of Tamil Nadu v. Adhiyaman Educational Institute, 1995 (4) SCC 104. The issue that arose for consideration in that writ petition relates to an order issued by the State Government in G.O.Ms.No. 429 dated 17.4.1984, permitting private Management to start new Engineering Courses, but subject to the fulfilment of certain conditions. The petitioner Institution was issued with a show cause notice by the University as to why the provisional affiliation should not be cancelled as a result of the alleged non-fulfilment of the conditions of affiliation. Learned single Judge who heard the writ petition, held that after the passing of the Central Act, the State Government had no power to cancel the permission granted to the Trust nor can it rely on a report of a High Power Committee appointed by itself. The Division Bench, on appeal, confirmed the decision of the learned single Judge. In the appeal filed by the State Government, while dismissing the appeal, the Supreme Courts held that if the provision of the Central Act on the one hand and the State Act on the other hand being inconsistent and repugnant to each other, the Central Act will prevail and de-recognition by the State Government or disaffiliation by the University for reasons which are inconsistent with those enumerated under the Central Act would be inoperative. Strong reliance is placed by the petitioners on the following observations in paragraph 32 of the judgment, especially the underlined portion as follows:
"32. As pointed out earlier, so far as technical institutions are concerned, the norms and standards and the requirements for their recognition and affiliation respectively that the State Government and the University may lay down, cannot be higher than or be in conflict and inconsistent with these laid down by the Council under the Central Act. Once it is accepted that the whole object of the Central Act is to determine and coordinate the standards of technical education throughout the country, to integrate its development and to maintain certain standard in such education, it will have to be held that such norms, standards and requirements, etc. will have to be uniform throughout the country. Uniformity for the purposes of coordinated and integrated development of technical education in the country necessarily implies a set of minimum standards the fulfilment of which should entitle an institution and its alumni, titles, degrees and certificates to recognition anywhere in the country. It is true that the higher than the minimum standard implies compliance, with the minimum standard."
27. From the above, the petitioners seek to contend that prescribing higher qualifications would be bad. I am afraid that the interpretation placed on the observations as above is unsustainable and amounts to a misreading of the judgment which has to be considered in its entirety and not by referring to stray sentences out of context. In fact, in the later portion of the order, the Supreme Courts had dealt with the issue of the right of the State Government to prescribe higher standards or qualifications if more applications were available than the number of seats. The Supreme Courts had held as follows:
"41. What emerges from the above discussion is as follows:
(i) the expression 'Coordination' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities.. It would, therefore, also include power to do all things which are necessary to prevent what would make 'coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.
(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.
(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of Clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.
(v) When there are more applicants than the available situations/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.
(vi) 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 dis-affiliate 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."
28. The above discussion clearly brings out that as long as more applicants are available as against limited number of seats, it was certainly open to the State/University to prescribe higher qualifications. This view is confirmed by the Supreme Courts in subsequent judgments also and it would be sufficient to restrict the discussion to the following three judgments, one by a Constitution Bench, the second by a Bench comprising of eleven Judges and the third judgment dealing with a similar Government Order in pari materia to the impugned Government Order in these writ petitions.
29. In Dr. Preeti Srivastava v. State of Madhya Pradesh, 1999 (7) SCC 120, the circumstances under which the case arose has already been discussed. The impugned issue was reduction of the eligibility criteria for Scheduled Caste candidates by bringing down the minimum marks prescribed by the M.C.I. While the Supreme Courts held that such an order by the Government was liable to be struck down, at the same time, held that prescription of higher standards by the State authority was sustainable. In paragraph 39 of the judgment, it was held that in every case, the minimum standards as laid down by the Central statute have to be complied with by the State while making admissions, and it may, in addition, lay down other additional norms for admission or to regulate admissions in the exercise of its powers under Entry 25 of List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.
30. Therefore, what was held as illegal was only diluting and lowering of the standards prescribed by the M.C.I. There was no bar for prescribing higher qualification for the purpose of shortlisting. It is further concluded that for shortlisting the candidates having the basic qualifications, it was permissible for the State authorities to have common entrance tests and to prescribe minimum qualifying marks for passing such tests.
31. In T.M.A. Pai Foundation case, 2002 (5) CTC 201 : 2002 (8) SCC 481, a Bench comprising of eleven Judges have concluded their observations in the form of questions and answers. The following observations adumbrated under Question No. 4 and the answer to that question clearly bring out that even in respect of unaided minority institutions where the role of the Government is limited, it is implied that the State or the University can prescribe qualifications and minimum conditions of eligibility, in the interest of academic standards:
"Q.4. Whether the admission of students to minority educational institutions, whether aided or unaided, can be regulated by the State Government or by the University to which the institution is affiliated ?
A. Admission of students to unaided minority educational institutions viz., schools where scope for merit-based selection is practically nil, cannot be regulated by the State or the university (except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards).
Right to admit students being an essential facet of right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right in respect of unaided minority institutions provided, however, that the admission to the unaided educational institutions is on transparent basis and merit is the criterion. The right to administer not being an absolute one, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof and it is more so, in the matter of admissions to undergraduate colleges and professional institutions.
The moment aid is received or taken by a minority educational institution it would be governed by Article 29(2) and would then not be able to refuse admission on grounds of religion, race, caste, language or any of them. In other words it cannot then give preference to students of its own community. Observance of inter se merit amongst the applicants must be ensured. In the case of aided professional institutions, it can also be stipulated that passing of common entrance test held by the State agency is necessary to seek admission."
32. A more important decision in this context is the one in State of Tamil Nadu v. S.V. Bratheep and Ors., 2004 (2) CTC 227 : 2004 (4) SCC 513, in which, a very similar order was questioned. The impugned Government Order in that case was of converse effect, namely, reducing the required minimum marks. While dismissing the Special Leave Petition filed by the Government, the Supreme Courts had made it clear that it was certainly permissible for the State Government to prescribe higher qualifications for the purposes of admission to the Engineering Colleges than what had been prescribed by the A.I.C.T.E. Therefore, with the result, I am unable to sustain the contention on behalf of the petitioners that it is not open to the State Government or the University to prescribe higher qualifications than the minimum qualification stipulated by the controlling authorities like M.C.I., D.C.I., A.I.C.T.E., etc. It is certainly open to the State Government to frame such Regulations prescribing higher qualifications in order to shortlist the number of applicants in the event of the number of applicants exceeding the available seats. The contention by Ms. Saraswathi Prasad as though there were more vacancies than the number of applications is factually not correct. Applications for M.B.B.S. and B.D.S. courses exceed several times more than the available vacancies which explains high capitation fee for the said two courses. Hence, I am inclined to hold that it is certainly open to the State Government or the University to enhance the eligibility criteria for admission.
33. For the same reason, the challenge to the validity of G.O.Ms.No. 100, Health and Family Welfare Department, dated 14.5.2003, also deserves to be rejected.
34. Point No. 3.-- I also find it impossible to uphold the contention on behalf of the petitioners that the higher qualification prescribed under the impugned Government Order will not be applicable to the Management Quota. Admittedly, the impugned Government Order does not stipulate any such limited application only for Government Quota. The Government Order takes within itself a clean sweep of all types of institutions, the Government, unaided non-minority and unaided minority institutions. As such, it is not open to the petitioners to read into the Government Order, an exception or exclusion, which is not provided for under the Government Order itself.
35. Even on general principles or in terms of any binding judgments, the petitioners have not been able to draw support for the said submission in any manner. To accept the said claim would clearly be violative of Article 14 of the Constitution and also opposed to the basic concept of the Government or the University being the controlling authorities over the educational institutions. Even in respect of minority institutions which are recognised as possessing certain autonomous and independent powers to select candidates, no such relaxation of minimum eligibility criteria had ever been contemplated, recognised or approved. In fact, as pointed out above, in T.M.A.. Pai Foundation case, 2002 (5) CTC 201 : 2002 (8) SCC 481, while dealing with the rights of the minority institutions under Question No. 4 and answer thereon as extracted above, the right of the State Government or University is recognised and kept intact for providing higher qualifications and minimum conditions of eligibility in terms of the academic standards.
36. Privatisation of education and the consequential high cost of education has now become accepted as a social compulsion. Many regulations are imposed and the right to conduct an educational institution is classified as a public duty which is amenable to several controls in an attempt to maintain the standard of education, especially professional education, and to prevent exploitation and commercialisation of education. All such controls would be rendered meaningless if the said plea is accepted. Why not then say that even M.C.I. Regulations would apply only to Government seats and not for Management seats ? M.C.I. is nothing but a Public Body like the University to regulate educational and professional standards. If the University and the Governmental Regulations are to be limited only to Governmental institutions and not for private institutions, the same logic should apply to M.C.I. Regulations also. This point is, therefore, stated only to be rejected as a far-fetched and unacceptable plea.
37. Point No. 4.-- Though I have held all the three points raised by the petitioners as above against them, I am inclined to hold that on the last point, there is considerable force in the contention on behalf of the petitioners regarding the legality of the attempt on the part of the respondents to enforce the newly prescribed qualifications for the academic year 2003-2004. No doubt, the Government Order prescribes that the order would be applicable forthwith and to the academic year 2003-2004. But when will the Government Order take effect legally is the issue to be considered. I am not inclined to accept some of the contentions raised on behalf of the petitioners such as that the Government Order had not been published, the students were not aware of the Government Order or that the students having been admitted in the courses, their future should not be affected. Whether the Government Order had been published or not, the fact remains that information would have been published in the newspapers. The colleges were also put on notice sufficiently earlier and they cannot be heard to plead ignorance. The fact that the students had been admitted earlier to the issue of the Government Order and they had obtained orders of stay, are also irrelevant. In several recent judgments, the Supreme Courts had consistently deprecated such practices and ultimately providing premium to the violators. None of these reasons appeal to me.
38. Yet, there is a strong ground to hold that the Government Order cannot be applied for the Academic Year 2003-2004. It is needless to mention that the order of the Government cannot be made applicable eo instante on the mere issue of the Government Order. The University, which is another wing of the Government, have to work in unison and to give effect to the Government Order by incorporating the new qualifications under the statute book of the University. However, the University moved slowly and it is stated, the process of amendment was completed only on 30.1.2004. The counter affidavit of the University makes it clear that the Government Order was placed before the Standing Academic Board on 25.6.2003 and the Board of Studies made its recommendation in terms of the Government Order only on 12.11.2003. Thereafter, the Standing Academic Board approved the necessary amendments only in its meeting held on 16.12.2003.
39. Mr. M. Venkatachalapathy, learned Senior Counsel, contended that finally, the amendment was given effect to only on 30.1.2004. Though this fact is neither denied nor admitted, the fact remains that the amendment could not have been carried out prior to 16.12.2003, on which date only, the Academic Board had approved the amendments.
40. In the background of the above facts alone, it can be safely concluded that the amended Regulations could not be applied for the Academic Year 2003-2004 for which admissions had commenced and completed between May-June of 2003. The unilateral announcement or the warnings issued by the University to the Institutions cannot have any sanctity by itself in the absence of necessary amendment to the Rules. The enthusiasm which was exhibited by the University in informing the institutions should have been shown for implementing and giving effect to the Government Order at the earliest and before the completion of the process of admission, which was not done. It is not known as to why there was a time lag of six months between the decision of the Academic Board (25.6.2003) to the recommendation of the Board of Studies on 12.11.2003 and the subsequent approval by the Board on 16.12.2003. The University could not have reasonably expected that retrospective effect would be given to the amendment so as to affect admissions already made. A statutory body like the University cannot reasonably expect that its proposals should be implemented without incorporating the same in the statute book.
41. Reference was also made to some of the provisions under the Tamil Nadu Dr. M.G.R. Medical University, Chennai, Act, 1987, which would also be useful. Section 22 of the Act deals with the powers of the Governing Council. Under Section 22(27), the University is authorised to make ordinances regarding the admission of students to the University or prescribing examinations to be recognised as equivalent to the University examinations. Section 35 deals with admission to University courses. Therefore, unless and otherwise the modified qualifications and eligibility criteria are duly incorporated by the University in their statutes, the University cannot seek to implement the Government Order without the University itself approving same. In this context, reference to Section 35 and 35-A of the Act would be useful:
"Admission to University Course.--
35(1) No person shall be admitted to a course of study or training in a College or University laboratory or an approved institute to appear for any examination held by the University for conferring any degree, diploma or other academic distinction unless he, --
(a) has passed the qualifying examination prescribed there or by the University; and
(b) fulfils such other condition as may be prescribed by the regulations.
(2) The Governing Council may, on the recommendation of the Standing Academic Board, exempt from the provisions of Sub-section (1) any candidate who has undergone an equivalent course of study or training in any college or institution outside the University area.
(3) The question whether such candidate has undergone the equivalent course of study or training shall be decided by the Standing Academic Board with reference to the syllabus, the course contents and the period of study or training.
Selection and admission of candidates to government colleges or Institutions.--
35-A. Notwithstanding anything contained in Section 35 or in any other provisions of this Act, --
(a) the Government shall be the competent authority to select and admit candidates to a course of study or training in the Government colleges and institutions and to a course of study or training in private colleges and institutions to which this Act applies, in respect of seats under Government quota; and
(b) the Government may specify, by general or special order, the policy, guidelines, method and procedure for selection of candidates for admission to a course of study or training in Government colleges and institutions and to a course of study or training in private colleges and institutions to which this Act applies, in respect of seats under Government quota.
Explanation.-- In this Section the expression "seats under Government quota" means the seats reserved in a course of study or training in private colleges or private institutions to which this Act applies, to be filled in by the Government from among the approved list of candidates selected for admission."
42. It is true that Section 35-A contemplates power in the State Government to follow its own policy, guidelines, etc., for selection and admission of students in its own colleges and institutions, or in respect of those colleges or in respect of seats in the Government Quota. Section 35-A would appear to be a provision which enables the Government only to formulate the guidelines and the procedure for selection and admission. In fact, there is no power to fix higher qualifications. Even assuming for the sake of discussion that under Section 35-A, the Government will have the power to fix higher qualifications, it can apply only to Government Colleges and Government Quota and not for Management Quota. Section 35-A is in the nature of an exception to Section 35, which permits the Government to formulate the procedure and requirements relating to admissions into Government colleges and seats under Government quota. Section 35-A cannot apply to private institutions. Therefore, unless the amendment takes full effect, the University cannot issue directions through letters to the constituent colleges to give effect to the requirements under the Government Order.
43. G.O.Ms.No. 100 cannot be given effect to unless the University also falls in line with the amendment. It would be anomalous to hold that the Government Order alone would be sufficient by itself without the University carrying out the necessary amendments. It is the University which grants the degree and if one is confronted with the situation that a candidate is qualified to be admitted in terms of University regulations but could not be admitted in terms of the Government Order, it would lead to undesirable situations and unnecessary problems to the student community. Education policy has to be sensible and definite and different authorities cannot be exercising their power as they deem fit unmindful of the confusion. While there can be no dispute over the power of the Government to prescribe certain standards and minimum criteria, it could be done only in combination with and in unison with the University. University, though autonomous for the purpose of proper administration, is another wing of the State Government. Unless the University also adopts the amended criteria, it cannot be applied to the constituent institutions. As stated earlier, even assuming that Section 35-A could enable the Government to prescribe higher criteria, at best, G.O.Ms.No. 100 could be applied only to Government colleges and Government quota and not to private institutions/Management quota, unless ratified by the University.
44. It will also be useful for us to view this issue from another angle for better appreciation. Let us assume that today the Government issues a Government Order reducing the minimum criteria for the open category from 60% to 55%. It would be perfectly permissible as there is no lowering of the standards set by the M.C.I. 50%. But in the absence of a corresponding amendment by the University to its regulations, the Government Order would remain inoperative at least as far as management seats are concerned. Private colleges would be answerable to the University and they cannot admit students who have secured less than 60%. Fixing minimum criteria for admission to a course, syllabus for any course, granting of Degree, etc., are primarily the functions of the University subject of course to regulations of UGSC and the other professional bodies like M.C.I., A.I.C.T.E., etc. Colleges are affiliated only to the University and they are governed by the regulations of the University. The role of the Government, Central or State is very limited in academic matters, especially fixing minimum criteria and qualification for admission into various courses of study 'cannot be enforced' unless and otherwise the University adopts the criteria fixed by the Government, the Government Order will remain inoperative. In this case, the University having carried out the amendment only in December, 2003, it cannot be applied to 2003-2004.
45. Therefore, by no stretch of imagination or arguments, G.O.Ms.No. 100 could be given effect to for the Academic Year 2003-2004 as against private colleges/Management quota. The fact that the constituent colleges did not give due regard to the directions of the University may sound little upsetting for the University. But the fact remains that the requirements of law and procedure cannot be ignored and the University ought to have considered for a moment as to whether its directions have proper legal backing. The fact that the University was fully alive to the legal lacuna is obvious from the facts stated in paragraphs 11 and 12 of their own counter affidavit as follows:
"11. It is submitted that the said issue was placed before the Governing Council of this University vide Agenda No. 16. in its 135th Meeting held on 20.7.2004.
The Governing Council after considering the issue unanimously decided to refer this matter to the Government and if the Government, desires to relax, the marks prescribed by them for admission to the said course, as a one time measure for these candidates then they can continue the study.
12. It is submitted that in pursuance of the decision of the Governing Council dated 20.7.04 a detailed proposal has been sent to the Government by this University in letter dated 21.7.2004. The Secretary to Government, Health and Family Welfare Department in his letter No. 36753/MCA-1/2004-1, dated 30.7.2004 has informed that the Government have decided not to accept the request for relaxation of minimum eligibility marks."
46. The University was, therefore, fully aware of the untenability of enforcement of the revised regulations which had been approved by the University only in the month of December, 2003 to be implemented for 2003-2004. The Governing Council had obviously felt that it may not be fair to expect the institutions to go by the amended qualifications which had been approved only in the month of December, 2003. The University, therefore, thought it fit to write to the Government to permit the candidates to continue their study as one time measure. The fact that the Government did not heed to the request of the University will not validate the action of the University in applying the new criteria for 2003-2004. Therefore, I am inclined to hold that the revised criteria of higher qualifications having come into effect only from December 2003, cannot be applied to the impugned admissions relating to the academic year 2003-2004.
With the result, the petitioners are entitled to succeed and the writ petitions are allowed as prayed for. Connected W.P.M.P.Nos. 2180 & 2181 of 2005 are closed.