IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13-02-2007 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.Nos.32552, 36500 and 18384 of 2006 And M.P.Nos.1,2 and 1 of 2006 Christian Medical College, Vellore Association, rep. By its Secretary Vellore, Tamilnadu .. Petitioner in W.P.No.18384/2006 P.Arunkumar .. Petitioner in W.P.32552/2006 J.Jotheebun .. Petitioner in WP 36500/2006 vs. 1.The Permanent Committee for the Conduct of Common Entrance Examination in Private Colleges NCB-7A, Greenways Road, Chennai 2.The State of Tamil Nadu, rep., by its Secretary (Health), Fort St. George, Chennai 3.The State of Tamil Nadu, rep., by its Secretary (Education), Fort St. George, Chennai 4.The Tamil Nadu Dr.M.G.R. Medical University, Rep., by its Registrar 40-A, Anna Salai, Chennai-600 032 .. Respondents in W.P.No.18384/2006 1.The State of Tamil Nadu, rep., by its Secretary to Government, Education Department, Fort St. George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ 2.Tamil Nadu Dr.M.G.R. Medical University, No.69, Anna Salai, Guindy, Chennai-32, Rep., by its Registrar. 3.Christian Medical College, Vellore-632 002, Rep., by its Registrar... Respondents in WP 32552/2006 1.Christian Medical College, Vellore, represented by the Registrar, Vellore-632 002, Tamil Nadu. 2.Tamil Nadu Dr.MGR Medical University, represented by the Registrar, No.69, Anna Salai, Guindy, Chennai-600 032, Tamil Nadu. 3.The State of Tamil Nadu, represented bya the Secretary to Govt., Education Department, Fort St. George, Chennai-600 009. .. Respondents in WP 36500/2006 WP 18384/2006 Writ petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, calling for the records in proceedings No.SFPC/014/MEDI/2006 dated 10.06.2006 of the Permanent Committee for the conduct of Common Entrance Test for Private Professional Educational Institutions in Tamil Nadu, the first respondent herein to the limited extent of invalidating the reservation upto 6 seats for the children of eligible Members of Staff of the Institution and quash the same to that limited extent. WP 32552/2006 Writ petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the third respondent to admit the petitioner who is a Minority Candidate from the State of Tamil Nadu pursuant to his marks obtained in the Entrance Examination conducted by the third respondent to the M.B.B.S. Degree Course for the academic year 2006-2007. WP 36500/2006 Writ petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the first respondent to admit the petitioner, who is a minority candidate from the State of Tamil Nadu, pursuant to his marks obtained in the entrance examination followed by interview conducted by the first respondent, to the MBBS Degree Course for the academic year 2006-2007 failing which for the academic year 2007-2008. https://hcservices.ecourts.gov.in/hcservices/ For petitioner in W.P.18384/2006 and : Mr. Krisha Srinivas Respondents 3 and 1 For M/S.S.Ramasubramaniam in W.P.32552 and and Associates 36500/2006 For Petitioner in W.P.32552/2006 : Mr. R.Muthukumarasamy Senior Counsel for Mr.K.Ravichandrababu For Petitioner in W.P.36500/2006 : Mr. Vineeth Subramanian For Ms.Gladys Daniel For Respondents 2 & 3 in W.P.18384/2006 and : Mr.M.Sekar, Respondents No. 1 Special G.P.(Education) in W.P.32552/06 & Respondent No.3 in 36500/2006 COMMON ORDER The Christian Medical College, Vellore Association, Vellore, which is a Society registered under the Societies Registration Act, 1860, hereinafter referred to as the "Petitioner Institution", floated a Prospectus inviting applications for admission to Under Graduate Medical Courses for the academic year 2006-2007. Simultaneously, the Petitioner Institution applied to the "Permanent Committee for the conduct of Common Entrance Examination in Private Professional Colleges", on 17.5.2006 seeking exemption from resorting to Common Entrance Examination conducted by the Government, but seeking permission to conduct its own Entrance Examination and follow its own admission procedure. After notice to the State Government and after hearing the parties, the Permanent Committee passed an order dated 10.6.2006, permitting the Institution to conduct its own Entrance Examination and follow its own admission procedure. However, the reservation of 6 seats made by the Institution for the children of eligible members of staff of the Institution, out of the total of 60 seats, was held by the Permanent Committee to be illegal. Aggrieved by that portion of the order of the Permanent Committee relating to reservation in favour of the children of eligible members of staff of the Institution, the Petitioner-Institution has filed a writ petition in W.P.No.18384 of 2006. 2. At the time of admission of the said writ petition on 20.6.2006, an interim stay of the impugned portion of the order of the Permanent Committee was granted, as a consequence of which, the Petitioner-Institution completed the admission process and published the results of the Selection Process on 27.7.2006. The selected candidates also joined the Courses on 28.7.2006. https://hcservices.ecourts.gov.in/hcservices/ 3. One unselected candidate by name P.Arunkumar made a representation to the Government as well as to the Permanent Committee on 28.7.2006, challenging his non-selection on the ground that the admission procedure was flawed. Under directions from the Permanent Committee, the Institution sent a reply dated 17.8.2006 justifying the non-selection of the said candidate P.Arunkumar. Thereafter, the said candidate P.Arunkumar filed a writ petition in W.P.No.32552 of 2006, seeking a Writ of Mandamus, directing the Petitioner-Institution to admit him on the basis of the marks secured by him in the Entrance Examination. 4. Another unselected candidate by name J. Jotheebun has filed a writ petition in W.P.No.36500 of 2006, seeking a Writ of Mandamus to direct the Petitioner-Institution to admit him on the basis of the marks secured by him in the Entrance Examination followed by the interview. 5. Since all the writ petitions raise common questions as to whether the admission procedure adopted by the Petitioner- Institution is fair and proper and whether reservation of seats in favour of children of staff members is permissible, all these writ petitions were taken up together for disposal. 6. I have heard Mr.Krishna Srinivas, learned counsel appearing for the Petitioner-Institution, Mr.R.Muthukumarasamy, learned Senior Counsel appearing for one unselected candidate, who is the petitioner in W.P.No.32552 of 2006, Mr.Vineeth Subramanian, learned counsel appearing for the other unselected candidate, who is the petitioner in W.P.No.36500 of 2006 and Mr.M.Sekar, learned Special Government Pleader (Education) appearing for the Government of Tamil Nadu. 7. Before delving deep into the rival contentions, it is necessary to have a look at the admission procedure adopted by the Institution so that the factual matrix around which the contentions are raised can be well appreciated. 8. The procedure for selection of candidates to Under Graduate Medical Courses is narrated in the Prospectus (for the year 2006-2007), on the following lines:- "BASIS OF ADMISSION 1. Selection will be based on merit. A written test (see Annexure II of bulletin) and interview will assess the candidate's ability to undertake medical studies. The tests and interview will also assess the candidate's character, motivation and suitability for the medical profession and studies at the Christian Medical College, Vellore. 2. The number of candidates for the MBBS course shall be 60 per year, of which not less than 25 shall be women. https://hcservices.ecourts.gov.in/hcservices/ 3. The final distribution of seats will be as follows: Open All India Merit 10 Christian Minority upto 50 4. Open All India Merit: (Total 10) (i) One candidate will be selected by the Government of India (separate request for obtaining prescribed applications are to be addressed to the authorities as indicated in Annexure-I of the bulletin). (ii) Twenty percent (2 seats) of the open competition seats shall be reserved for candidates belonging to Scheduled Castes/Tribes (SC/ST). The candidates belonging to SC/ST should indicate this on the application form and a photocopy of the certificate of proof issued by the Dy. Tahsildar or the District Magistrate MUST be enclosed. The original of the Certificate is required at the time of interview. (iii) The rest shall be on open merit. 5. Minority Candidates (upto 50) a. Up to 10 seats will be reserved for Christian candidates from socially (health parameters) and educationally backward States who are domiciled in the state and have undergone three of the last four years of their secondary education in that state. The states, which come under this category, will be determined from time to time based on the health and development indices published by the Government of India. For this year's selection, the states shall be – Bihar, Chattisgarh, Jharkhand, MP, Orissa, UP and the North-eastern states. Candidates will be selected by merit. b. The remaining seats will be available for Christian students on merit from all over India. c. Students will have to produce a certificate from their Pastor, counter- signed by a designated administrative authority/authorities of their church or by the designated authorities of their Christian organization, who have applied for recognition with the C.M.C., Vellore. All churches or Christian organizations that desire to certify their children for this privilege should apply to the Office https://hcservices.ecourts.gov.in/hcservices/ of the Council Secretary of C.M.C to be recognised for certifying the candidates. The following may be eligible for such recognition from C.M.C. Vellore. i. All existing member churches and organizations of the C.M.C. Vellore Council, ii. Churches that are members of the National Council of Churches in India or iii. Any other Christian Church/Christian organization that is registered with the Government. 6. There is no reservation for NRI's; they will be considered under All India Open Merit. However, up to 6 seats will be reserved for admission of children of eligible members of staff of CMC Vellore (Confirmed staff with 10 years of continuous service or retired or died in service after 10 years of continuous service). These seats will be available on merit for children of both minority and non-minority staff. 7. A written test in Bible Knowledge should be taken by all Christian Minority students, if they are called for interview and practical tests at Vellore. 8. About twice the number of students to be admitted will be interviewed and have practical tests at Vellore. 9. All admissions are subject to medical fitness. 10. THE DECISION OF THE SELECTION COMMITTEE IS FINAL." 9. The admission procedure adopted by the petitioner- Institution, in the light of the above Prospectus conditions, is assailed by the unselected candidates in 2 writ petitions and the disapproval of the reservation of seats for children of the staff of the Institution, by the Permanent Committee, is the subject matter of the writ petition filed by the petitioner-Institution. The questions raised in these three writ petitions revolve around the following crucial issues:- (a) The Institution conducts (i) a Common Written Entrance Examination to which 40% of the marks are allotted, (ii) certain tests termed as "Group Tasks" for which 20% of the total marks are allotted and (iii) an interview for which 40% of the total marks are allotted. In respect of Christian students, the marks allotted for interview are reduced to 30% of the total marks and they are made to write a Written Test in Bible knowledge, to which 10% of the total marks are allotted. Therefore, the first https://hcservices.ecourts.gov.in/hcservices/ issue raised by the unselected candidates is as to whether an Institution is entitled to allot 40% of the total marks for interview, in the light of various decisions of the Supreme Court fixing a ceiling limit of 15% of marks for interview. (b) Even the allotment of marks in the Written Examination, Group Tasks and Interview, are not done in a straight, plain and simple Manner. The marks are converted at every stage into a system known as "Stanine Grading" and the selection of candidates finally depends upon the grade obtained by them, in the final tally, which according to the unselected candidates failed the test of transparency in the matter of selection. (c) As a minority educational Institution claiming protection under Article 30 of the Constitution, the Institution was obligated to admit a predominant number of students belonging to the State of Tamilnadu, though a Sprinkling of such students from other States could also be admitted. On the contrary, the Institution actually admitted only 5 candidates belonging to the Christian minority community from the State of Tamilnadu, thereby failing the test of "State as the unit" for determining the minority status of the Institution . (d) The reservation of 10 seats made by the Institution for Christian candidates from socially and economically backward States, included within its ambit, candidates from the North Eastern States. Two of the North Eastern States have Christians as the majority population and hence according to the unselected candidates, the selection of Christian students from States in which they form a majority, defeated the purpose of grant of minority status and also violated the law laid down by the Supreme Court. (e) The question whether the reservation upto six seats for the children of eligible members of the staff of the Institution falls within the frame work of reasonable classification permitted by the Constitution is the last issue raised by the unselected candidates and the same has also been found against the Institution by the Permanent Committee. https://hcservices.ecourts.gov.in/hcservices/ Now let us take up these issues one after the other. I. The validity of allotment of 40% marks for Interview:- 10. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for one of the unselected candidates, lucidly traced the history of the law on the point as to whether the marks allotted for interview shall exceed a particular percentage. The earliest case on this point was R.Chitraleka vs. State of Mysore (AIR 1964 SC 1823) and the same was followed by A.Periyakaruppan vs. The State of Tamil Nadu (1971 (1) SCC 38). In the said case, the Supreme Court held that "earmarking 75 marks out of 275 marks for interview as interview marks prima facie appears to be excessive". Though the Supreme Court did not accept the submission that the system of interview as is vogue in this Country is so defective as to make it useless, the Supreme Court nevertheless found that even when interviews are conducted by impartial and competent persons on scientific lines, very many uncertain factors like the initial nervousness on the part of some candidates, the mood in which the interviewer happens to be and the odd question that may be put to the persons interviewed, might all go to affect the result of the interview. 11. The next case on the point was that of Ajay Hasia vs. Khalid Mujib Sehravardi ((1981) 1 SCC 722). In paragraph-18 of the said judgment, the Supreme Court upheld the adoption of oral interview as a supplementary test for assessing the suitability of candidates wherever test of personal traits is considered essential, though the Apex Court held at the same breath that it is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates. In paragraph-19 of the said judgment, the Supreme Court held that allocation of 33 and 1/3% of the total marks for oral interview was plainly arbitrary and unreasonable. The following portions of paragraph-19 of the said judgment are of significance in this regard:- "Now there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the Court as free from the vice of arbitrariness." .. .. .. .. .. .. .. .. .. .. .. .. "There can be no doubt that allocating 33 1/3 per cent of the total marks for oral interview is plainly arbitrary and unreasonable. It is significant to note that even for selection of candidates for the Indian Administrative Service, the Indian Foreign Service and the https://hcservices.ecourts.gov.in/hcservices/ Indian Police Service, where the personality of the candidate and his personal characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for oral interview are 250 as against 1800 marks for the written examination, constituting only 12.2 per cent of the total marks taken into consideration for the purpose of making the selection. We must, therefore, regard the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained." In the last portion of paragraph-19 of the same judgment, the Supreme Court held that "under the existing circumstances, allocation of more than 15 per cent of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid". 12. In the next case, Ms.Nishi Megh and Others vs. State of J & K (1980 (4) SCC 95) , the Supreme Court again doubted the reliability of the interview system, but held that the contention that it is not a reliable test reflects a legitimate point of view, but it is only a point of view and cannot be taken as the last word on the subject. However, the Supreme Court proceeded to hold that reserving 50 marks for interview out of a total of 150 marks did seem excessive, especially in the background of the fact that the time spent by the Interviewing Committee was not more than four minutes on each candidate. 13. The prescription of 25% marks for oral interview for selection to judicial service came up for consideration in Lila Dhar vs. State of Rajasthan (1981 (4) SCC 159). After taking into consideration the law laid down in Periyakaruppan's case and Ajai Hasia's case, the Supreme Court made a distinction between selection for appointment to services and selection for admission to Colleges, in paragraph-6 of its judgment as follows:- "6. Thus, the written examination assesses the man's intellect and the interview tests the man himself and "the twain shall meet" for a proper selection. If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview-test must be minimal. That was what was decided by this Court in Periakaruppan vs. State of Tamil Nadu, Ajay Hasia vs. https://hcservices.ecourts.gov.in/hcservices/ Khalid Mujib Sehravardi, and other cases. On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied." 14. In St. Stephen College vs. University of Delhi ((1992) 1 SCC 558), the Supreme Court considered the above noted earlier decisions of the Supreme Court and held in paragraph-63 as follows:- "63. The oral interview as a supplementary test and not as exclusive test for assessing the suitability of candidates for college admission has been recognised by this Court. But at the same time, to avoid arbitrariness in the selection it has been repeatedly held that there shall not be allocation of high percentage of marks for oral interview test. Where candidate's personality is yet to develop, it has been emphasised that greater weight has perforce to be given to performance in the written examination and the importance to be attached to the interview test must be minimal. The Court has generally indicated that interview marks should not be more than 15 per cent of the total marks." 15. All the aforesaid decisions, except the one in St.Stephen's case, did not deal with the issue of allotment of more percentage of marks for the interview, with particular reference to the right of the minority Institutions to admit students of their own choice. St. Stephen's case considered the issue in the light of the right of minority institutions. The subsequent decisions laid emphasis on the freedom of choice of the self financing as well as minority Institutions. In T.M.A. Pai Foundation vs. State of Karnataka (2002 (8) SCC 481), the Supreme Court answered the question as to whether the rights of minorities to establish and administer educational Institutions of their choice will include the procedure and method of admission and selection of students, under question No.5(A) under para-161, as follows:- "A. A minority Institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to maladministration. Even an unaided minority Institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the Institution will fail to achieve excellence." https://hcservices.ecourts.gov.in/hcservices/ 16. In Islamic Academy of Education vs. State of Karnataka (2003 (6) SCC 697), the Five Judge Bench of the Supreme Court, constituted for the purpose of clarifying any doubt/anomaly in the larger Bench Judgment in T.M.A. Pai's case, again addressed itself to the question about the right of unaided professional colleges to evolve their own method of admission. In para-16 of the said judgment, the Supreme Court held that the managements of these colleges could select the students, either on the basis of the Common Entrance Examination conducted by the State or on the basis of a Common Entrance Test to be conducted by an Association of all Colleges of a particular type in that State. The option of choosing between either of these tests must be exercised before issuing the Prospectus. 17. After holding that the minority Institutions can admit students on the basis of either of the above two Common Entrance Tests, it was brought to the notice of the Supreme Court that a few Institutions like the petitioner-Institution, have had their own admission procedure for a fairly long period of time and that no complaints had ever been made about the fairness or transparency of such a procedure. Dealing with the said submission, the Supreme Court held in para-17 as follows:- "17. At this juncture it is brought to our notice that several Institutions, have since long, had their own admission procedure and that even though they have been admitting only students of their own community, no finger has ever been raised against them and no complaints have been made regarding fairness or transparency of the admission procedure adopted by them. These Institutions submit that they have special features and that they stand on a different footing from other minority non-aided professional Institutions. It is submitted that their cases are not based only on the right flowing from Article 30(1) but in addition they have some special features which require that they be permitted to admit in the manner they have been doing for all these years. A reference is made to few such Institutions i.e. Christian Medical College, Vellore, St. John's Hospital, Islamic Academy of Education etc. The claim of these Institutions was disputed. However, we do not think it necessary to go into those questions. We leave it open to the Institutions which have been established and who have had their own admission procedure for, at least, the last 25 years to apply to the Committee set out hereinafter." https://hcservices.ecourts.gov.in/hcservices/ 18. It is in pursuance of the aforesaid direction of the Supreme Court in Islamic Academy's case that the petitioner- Institution applied to the Permanent Committee for approval of their admission procedure and the Permanent Committee also granted approval for the admission procedure by its order dated 10.6.2006, though the Permanent Committee interfered with the admission to the limited extent of setting aside the quota reserved