^^ IN THE HITH COURT OF JUDICATURE AT BIIASPUR (C.G. ) W.P.N0.^8 OF 2002 peti-tioners ^/.••'^ ^y ^^r /'/ Sz -'>"^(^ <• .^' <•• ^ ..' ^ R_espondents Versus 1. Ku.Khushbu Bagdi (Hiner) aged about 17 years D/o. Shri Vijay Bagdi be.i.ng the father and natural guardian studying in Class-XIT In Holy Cross H.S.School Penslon Bada, Ralpur resident of Budapara, KalpurCCG.) 2. Ku. Sruti Khandelval (Minor) agaed about 17 years D/o. Dr.Govina Khandelvral being the father and natural guard-Lan, rssldent of samafea colony, Raipur (C.G.). 3. Gaurav Ahluwalia aged about 18 years S/o. Shri S.K.Ahluvalia studying in class-XII in Holy Cross H.S.School Bai-an Bazar, Raipur, resident or Bairan Bazar, Ralpur(C.G.). 4 Piyush Birla S/e. Shri K.J.Birla aged about 18 ycars resident of Rajendra Nagar Ralpur (C.G.). " . ^? 1 ^-? State af Chhattisgarh Through secretary Public Health, Family Welfare and Medical Educatlon D.K.S.Bhawan, Ralpur (C.o.). S; The Secretary Department of Education Government o£ Chhafctlsgarh D.K.S.Bhawan Raipur (C.G.). B'-1 :2s PETITION_UNDER_A^TICLES Vi^fyi OFJTgE^^NST^T^T^ON OF^ INDIA FOR ISSUANCE OF APPROPRI&TE WRITS AND DIRBCTIONS INCLUDING WRIT OF MANDAMUS AND FURTHER DIRECTIONS ETC. ^^\_ WRIT PETITION N0. 93 OF 2002 Ka. Khushbu Bagdi & Three others - Versus - State of Cbhattisgarb and anotber CRDER Post for ^_.4.2002. —~-———A_^ Sd/- ~ Fa&iiruddin Judge lalaapi WRFT PETITION N0. 98 OF 2002 Ku. Khushbu Bagdi & Three others -Versus- State of Chhattisgarh and anoffaer Petitioner by Shri Sandeep Dubey, Advocate. Respondents by Dr. N.K.Shukla, Additional Advoi ite GeneraJ with Shri P.S.Koshy, Govt. Advocate. Interveners by Shri Manindra Shrivastava, Advoce 2 with Shri Ashish Shrivastava, Advocate. ORDER Bv Justice Fakhruddin. By fhis petition iinder Article 226/: Constitution of India the petitioners Ku. Kh Ku. Sruti Khandelwal, Gaurav Ahluwalia Birla have prayed for issuance of approp direction, commanding the respondents for Entrance Examination (Pre Medical T< successful candidates of Class-XIIth exarainations conducted by Chhattisgai Higher Secondary Education, CentraJ Secondar^' Education (CSEB) and In Certificate Examination (ISC) for admissic coUeges tncluding veterinary and dental ci State from. the current academ.ie session 2( 37 of tlie shbu Bagdi, and Piyush late writ or iclding joint t) for the frora the Board of Board of .an School . ui medical leges in the )2 onwards. <y<) 2. While giving their own details the petitioners have subniitted that the petitioner No. 1 is a student of Class- XII of Holy Cross Higher Secondary School, Pension Bada at Ralpur and she claims that she has a good academic record and expects to pass the class-XIIth Board examination to be conducted by the Chhattisgarh Board of Higher Secondary Education. It is stated that petitioner No.4 has already passed Class-XIIth examtnation from M.P. Board ofSecondary Education in 2001 and had appeared m. the PMT test but could not be selected and is preparing hard to appear in PMT whenever it may be conducted by the respondents. Petitioner No.2 contends that she has secured a position tn the merit list in Class-XIIth conducted by The Boarcl of Secondary Education in 2001 and had appeared in PMT and is working hard. 3. The petitioners in this petition have contended that the State of Chhattisgarh has taken a decision not to hold Pre Medical Test Entrance Exainuiation for adm.ission to M.B.B.S. Course for the year 2002 and this decision h&s been publlshed in a daily newspaper Navbharat dated 2nd January 2002 (Annexure P/2). The petitioners furfher contended that this decision not to hold the test is illegal and contrary to the settled position oflaw. The petitioners have referred to the Medical CouncU of Indiei Regulations on Graduate Medical Education, 1997 and especiatly Regulation No.5. They have also referred to a decision of Apex Court reported in (1998) 3 SCC 183 (Ravmdra Kumar Ral Vs. State of Maliarashtra and others). 3 -S^) 4. In para 5.11 of fhe petition the petitioners have laade aUegation to the effect that the record of the Chhattisgarh Board of Secondary Education is not appreciable and they have refen'ed to Annexure P/3 newspaper report published in daily Bhaskar dt. 9.5.2001 whereby it is stated that about 2000 cases of copying (unfair means) by the students were reported. On the basis of press cUppings published in dally Bhaskar dated 1.6.2001(Annexure P/4) it is also stated that the Board of Higher Secondary Education does not have sufilcient staff to conduct exam.ination, as the eiaployees are not allocated. Another newspaper clipptngs publlshed in dally Bhasker dated 1.7.2001(Annexure P/5) has been reffered, which is to the effect of iiiefficiency regarding valuation of answer books ofthe candidates by teachers ofother subjects. 5. The petitioners have zu-ged ground No.6.6 in the petitlon which is quoted below: "6.6 For fhe reason that the respondent state is thoroughly incompetent according to its own assertion, comm.ission and omissions to conduct any such exam.ination for the student of Class-XII conducted by the Central Board of Secondar\- Education as also the Indian School Certificate Board Examination." 6. The respondents-State has filed its reply on 31st Januar^- 2002 raisuig preluninary objections. Para- 1 and 2 of the reply are quoted below: 4 "1. That the petitioners are seemingly aggrieved by the decision of the State Gtovemment of Chhattisgarh to discontinue with the system ofPre-Medical Test and Pre- Engineenng Test of qualilication examination for admission into Medical and Engineering Courses." "2. That even though the policy decision to that effect has been taken by fhe State Govt. in exercise of its powers and in best interest of the students, system of education and State ui general considering all relevant aspects of policy m.aking, yet the petition is preraature in as much as consequent upon the poUcy decision the State Government is yet to frame necessary rules for the purpose of admission to the aforesaid courses. The rules may provide adequate provisions and also safeguards for ajust and fair treatiaent to atl the students, apptying for adniission on the basis of examination conducted by Boards. The petition is in any case is prematiire." 7. The State however filed its return on 27th February 2002 and corne forward with the stand that because of filing of the petition they could not fraine Rules. Apart from this it is further stated that there is a Board of Secondary Education, which is dotng its best. The concern of the State as reUected in the return is that the Chhattisgatrh is a tribal, domtnated area and proper coaching is reqi-ured for the students to participate and succeed in fhe pre medical exaniination. In para-1 raising; preluninaiy subniissions it is stated fhat "Though tht petitioners may have a right to be considered for admission into Medical Colleges, such right could be regulated by the rules for admission framed by the 5 answering respondents in exercise of their rule making powers. The right of the petitioners to be considered for admission does not include legal right with them. to command the State Govemment to regulate process of adnussion in particular manner, nw.ch less by holding a competitive entrance examination such as PMT. To hold or not to hold a coinmon entrance examination is essentially a matter of executive and policy decision of the Govemment ivhich is arrived at upon appreciation and consideration of all relevant drcu.mstances obtaining in the State in holistic manner and consistent ivith the objects and duties gwding the State Govertiment to make such decision. The petitioners houiever, cannot seek to curtail such right and powers of the State Govemment m. regulating the process of cudmission. B, is hoivevsr, reiterated that the adnussion to Medical Colleges shall be made and all rules and procedures will be accordingly devised, based on merit ofthe respective candidates." In para-2 it is stated that "The answering respondents submit that while laying down the procedure feir admission into Medical and Engineering courses fhe State is duty bound under the Constitution to bear in mtnd prtnciples of and need for ensuring equality. The experience over a period of time has led to a genei-Ed beUef fhat the pre medical test, by virtue of affluence of the candidates to afford coaching has generally been helpful to such privileged students who could receive specialized coachtng and that too in urban areas. By vtrtue of specialized coaching they can secure higher marks in the common entrance test and those who do not have the capacity and opportunity for such 6 (^ speciallzed coachtng namely less privileged class of society in rural area or even in urban areas, suffer unequal treatuient and de-privation ofequal opportunity before law. Therefore, whefher the pre medical test can be a real and meaningful means of fhe testing mtelligence of a student remained a highly doubttul proposition. While it is necessary to inake the adniission nierit based, it is equally essential and obligatory on the part of the State Government to make opportunity tbr aduiission equal and to provide an equal level playhig field for all the students irrespective of their socio- economic advantages or disadvantages. Such essence of decision of the State Goveminent of policy ruaktng lies in the domatn of govemmental functions which is :not justiciable." 8. In reply to the para 5.5 of the petition, State has submitted fhat "In fact the cabinet decision for abolition o/ PMT and PET has been taken in the State in Februaiy, 2001 but the same had been kept in abeyance for ane year as students had claim to be preparing for the and PET. ° 9. On 31st Januar^r, 2002 an application has been filed on behatf of Interveners Shri Shailesh Nitin Trivedi,Civil Engineer R/o Baloda Bazar, Raipur, Dr. Shiv Kuiiiar Daharia, BA MS Ayurvedic Doctor,R/o Telebandha Raipur, Shri Shyam. Lal Maravi of Balco Nagar,Korba, Shri Balak Ram Patel R/o Kharasia, Raigarh and Sl~iri Arul Kumar Khobragade R/o DUlihi Rajhera, Durg in opposition of the petition. The interveners opposed che 7 petition on the ground that the students studymg in rural area as weU as in the tribal areas of 'che Chhattisgarh State are facing number of diffici.ilties as com.pared to tihat of students studying in fhe schools located at urban areas. In para-5 they have stated that it is the matter of common experience that most of the prestigious schools of the Chhattisgarh are located in the city centers, which are well beyond the reach of the poor students who are pursuing their studies in rursl ai'eas. The students studying in urbaii areas are comparatively well off and come from sound financial back ground who are used to take the coaching from the reputed coaching institutions which are also established in fhe cities and fherefore they are bound to get success in the entrance exainination as compared to ths students who have completed fheir schooling in the rural areas and who are deprived of those facilities and advantages. In para-6 it is stated that ra PMT for admisslon in MBBS and other coiirses students will be required to solve objective type questions and that has to be answered by choosing options. In para-8 it is stated "That the interueners respectfiilly submits that the obvious reason for the schenie of holding the entrance examination is variation of standards of the qualifying examination as the standard of examination and percentage of the marks secured by students at different type of examination at the higher secondary stage can not be treated as uniform. The percentage secured at different examination are scad to vary according to the standard applied by each examining bodies and therefore system of •vommon been in vogue.' In para-10 they have stated 'The 8 pre Medical Test is designed in a manner that those students uiho have received spedalized coaching are Ukely to secure higher marks in this test. WTiether the PMT actually test the intelligence of the students is a inatter, ivhwh can be debated. Hoiuever, there is no doubt about the fact that students of disadvantaged communities living in remote area, where spedalis.ed coach'tng is not available are certainly placed at a disadvantage in this test as compared to the students who belong to the urban elite. As a matter of fact, a whole coaching ind'astry thrives in the State because ofthe test. 10. The first contention raised by the counsel for the State is that the petition is pre mature. This contention was raised in the preluninaiy subraission and reiterated. The respondents' own case in fhe reply as well as return is fhat the decision has been taken to abolish the system of pre medical test. The prelim.tnary objection and the return go to show that the policy decision has been taken and Govt. has yet to fram.e the necessary Rules for the purpose of the aforesaid courses. In the press clippuigs it was stated fhat the Rules would be frained within 10 days. The Rules have not so far been framed though sufficient time has elapsed. The students are m dUemma. Havtag considered fhe facts and cu'cumstaaces and the material on record ui the opinion of this Court this contention that fhe petition is premature is not sustainable. 11. Learned counsel for the State submitted that tne pleadings especially para 6.6 of the petition raakhig V f': .' c': aUegations are not correct and have no basis. It is contended that the pleadings are scandalous and accusation has been made without any basis. This Court has noted in the earlier order-sheets about the aUegations and the accusation raade in para 6.6 are conceraed. On 2.4.2002 Shri Sandeep Dubey, leanied counsel was pointedly asked, but no satisfactoiy reply cf makuig such wild allegation is given. The petitioners have ffled an application for clart(ication, which was not supported by any affidavit. These allegations made against the state are struck off. The press clippings have been flled but af&davit in support of these allegations have not been filed. The petitioners have not stated that they have verified about these press cllppings, eveii otherwise Annexure P/3 newspaper report goes to shov? that the 2000 cases of copying (malpractice) were reported. These cases could be reported because the Board of Secondary Education and its employees in spits of lunited resoiirces worked hard and desenres appreciation. 12. The State Govt. functions through its instrumentality, higher secondary exam.inations are conducted by the Board of Secondary Education, which is a statutory body, the prayer for conducting the examination of PMT is through a body known as 'Professional Examhiation Board'. The allegations made against the State regarding fLinctionine of its functionaries have no basis and as such these allegations ruade regarding the competency for holding of examtnation are rejected rnore so when ^Secondary Board 1s notjoined as party. 10 O'^i- 13. In the petition under Article 226 for issuance of writ enforcement of fundaruental rights, legal and such other rights, conferred by Part-III and for any other purpose, the petitioner has to carefuUy plead fhe case. 14. The allegations made in Para 6.6 of the petition in the opinion of this Court are vexatious and without aiiy basis. Shri Sandeep Dubey, leamed counsel for the petitioner submitted that he feels sorry and furfher submitted that. he restricts his case only to the legal submissions tn view of the judgment of the Apex Court malnly tn the case of Ravindra Kuruar Rai(Supra). TIie accusation and allegations made in the petition, which contatn vexatious averments, especially para 6.6 insuiuations, 9o innuendos are not pressed and struck off. 15. So far as the matter relating to holding of the exam.ination for the year 2002 is concemed in the opuiion of this Court the matter is squarely covered by the decision of Apex Court in the case of Raviiidra Kumar Ral Vs,._._State of Maharashtra and others, reported in (1998) 3 SCC 183. In fhat case also there were three Boards in Maharashtra State conducting qualilying examination and there were sever.al. uruversities. The HonT3le Supreme Court. considered the entire matter. Paragraphs 6,7,8 and 9 are relevaiit which are quoted below: '6. We may at the outset point out that in as much as there are three Boards in Maharashtra State which 11 conduct the cjwdifying exarrdnation and in as much as there are several universities, the State of Mahrashtra would clearly fall under sub-clause (2) of Regulation 5 made by the Medical Council and not under sub-clause (3). The contention for the State that candidates fi'orn. C.B. S.E. Board are small in. number does not appealto us. Inasvnu.ch as there is no dispute that more than one Board conducts the qualifying examination and the Universities are more than one in number, sub-clatise (3) ofRegulation 5, in our view, is not attrajcted. It is also not possible for the State to say that conducting a com.m.on entrance examination will delay the admission process or that it ivill be extremely diffiau.it to conduct the exmrdn.ation. In fact, the statement in the counter affidavit to the effect that the State has been conducting a common examination for 1,80,000 at the 10+2 level in the 7 divisional boards would itself -show that the State is capable ofconducting a common entrance examination for admission to medical colleges, even if the number of students is large. We may also say that in several States, common entrance exaimnation was being conducted even before 1997 when these regulations made by the Medicai CouncU ccane into force. In fact in some States, entrance Examination is conducted jointly for engineering ancl medica! students also. We fail to see ivhy the State of Mahrashtra should say that it will be an arduaus task. '7. In a recent judgment of this Court in Shri Chander Chinar Bada Akhara Udasin Sodety v. State ofJ&K in the context ofadmission to medvxd colleges and the need Jor a common entrance examination, this Caurt obsen/ed as follows: 12 w 'R need not be pointed out that the percentage of marks secured by different applicants at different types of examinatians at the higher secondary stage cannot be treated as unifonn. Some of such examinatioris are conducted at the state level, others at the jzational level including the Indian School Certiflcate Examination. The percentage secured at different examinations are bound to vary according to the standard applied by such examination bodies which is well known. As such a common entrance examination has to be held." It has been therefore held that a 'common entrance exarmnation1' for admission to medical colleges has to be held. "8. We next come to the contention of the respondent based upon Article 371(2)(c j ofthe Constitution oflndia. That Article permits the Govemor to require an ecftdtable arrmigement to be inade for providing ddequate facilities for techniccd education and vocatlonal trairdng'' in respect of the areas Vidarbha, Marathwada and the rest of Maharashtra. Assuming that the medical education falls within the scope of the said Article, u/e do not think that compliance with Regulation 5(2) of the Regulations mcide by the Mediccd Council oflndia -will in any maiznsr come in. the ivay of giving effect to the provisions of article371(2)f c). S9. Pinally, it -was argued for the respondent that, sn any event it will not be possible to conduct a 'common entrcince examination' for the academicyear starting from 1998 in as much as, Just now the time available is too short. We cannot agree. These regulations ha.ve come ~into force as long back as on 4.3.1997. There is, in our ^ 13 view, sufflcient time availatole and all that is necessary is that the State must irmnediately draui up the programme and timetable for conducting the common entrance examination for the year 1998 and for the other steps in that behcdf." In para-10 the Apex Court allowed the writ petition and du-ected the State of Maharashtra and its Medical Education Department to start the process for holding the common entrance exammation for admission to medical colleges in Maharashtra for the year 1998 and conduct the said examination. This decision of the Apex Court is applicable with futl force in the instant case aiid squarely covers the legal questions in the opinion of this Court. 16. It is reflected in para-2 of the Return filed by the State that fhe experience over a period of time has led to the Govt. to a general belief that the pre medical test, by vtrtue of affluence of Che candidates to afford coachini has generally been helpful to such privileged students who could receive specialized coaching and that too in urban areas. By virtue of specialized coaching they car. secure higher marks in the coininon entrance test and those who do not have the capacity and opportunity for such specialized coaching naniely less/under privileged class of society in rural areas or even in urban areas, suffer unequal treatment and de-privation of equal opportunity before law. 17. In the retum while replying para 5,4 the respondents have refeiTed to the decision ofApex Court tn the case of 14 ® Ravindra Kumar (supra) aiid the judgment refen'ed therein in the case of Shri Chander Chtaar Bada Akhai'a Udasui Societv v. State of J 85 K, reported in I199&[_5 SCC 731_. The State Govermnent though stated in the retiim but has not at att been able to place aay material that fhe ratio of the judgnient of fhe Hon'ble Supreme Court is not applicable. It will be appropriate to quote the relevant portion, which is as under: The ratio of this judgment of Che Hon'ble Apex Court are differing standards of different qualilying exainination. Goverrunent of Chhattisgai-h has taken care of this difference in standards. Governuient has decided to keep separate quotas of seats in MBBS Course for eUgible appUcants passing the qualifying examination from different Boards aiid Exaiuirung Bodies. These seats will be kept in proportion to the ni.unber of eligible applicants who have passed the qualtfying examination conducted by fhese Boards and Exauiining Bodies. Thus the students who pass fhe qualttying examination from one Board of Exaniinuig Body wiU coiupete with only those who have taken the same exaintnation. The question of treating all exaiainations as unilbrm fherefore does not arise. Obviously the judgment which has been cited is distinguishable." Havuig thus considered, even in case of Chhattisgarh State, more so when the Rules have not been framed, the judgment passed by the Apex Court in the case of Shri Chander Chinar_Bada,_A.khara Udasin SocieU' v^ State of J & K. reported in (1996) 5 SCC 732 and Ravindra Kumar Rai (supra) applies with fuU force .and the decision not to hold the exaintnation for 2002 is not 15 T^~'l sustainable. The State has failed to produce ariy material that the said judguient is distingiiishable. 18. The State of Chhattisgarh has shown a great concern so also the interveners about Coaching Institutions. So fa-r' as coachtng institutions are concemed a Division Bench of fhis Court has dealt with the matter ui W.P.No. 847/2001 (Sardar Jaswant Singh Ajmaiu Vs. Public Service Conimission_of M.P. & others)., Para 21 of the said order is relevant and quoted below: " Learned counsel submits that certain coachin^ institutions like the present one Tuteja Coachins Institute are doing on commercial undertaking aiid students are aUured. It is submitted that the Tu-teja Institute has submitted certain document against the interest of candidates. In soiue cases photographs have also been appended. The institute has to be very careful. We do not wish to deal m.uch on this aspect. in the matter. It is noted that many coaching jnstitutes aie coaching in any outside the State. Even in respect of Prunary, Nursery and Higher Secondary Schools aad colleges, pemiission is requu'ed. They are governed by statutes, rules 85 regulations and byelaws fonxied by respective States and Central Qovernments. Even private schools and coUeges are governed and standard and qualifications are prescribed. It appears that there is no check over persons car^ing on coachmg mstitutions. The coiapetition is increasing day by day. Many of the students and candidates are aUured by advertisement or othem'ise and huge profit earned. It has beconie commercial activity without any check from any quarter. 16 The Govemments both Central and State wiU be ivell advised to consider all these aspects and appropriate legislation, rules and regLilations aiid guidelines