IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 2495/2009 and CWP No. 2781/2009 Reserved on: 27.8.2009 Decided on:3.9.2009 ________________________________________________ 1. CWP No. 2495/2009 Himachal Pradesh B.Ed. College Welfare Association. …Petitioner. Versus State of Himachal Pradesh and others. … Respondents. 2. CWP No. 2781/2009 Ms. Ritika and others. …Petitioners. Versus State of Himachal Pradesh and others. …Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Acting Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. K.D. Shreedhar, Advocate with Ms. Suman Thakur, Advocate (in CWP No.2495/09) Mr. J.L. Bhardwaj, Advocate in CWP No.2781/2009 For the Respondents: Mr. R.K. Bawa, Advocate General with Mr. P.K. (in both the petitions). Sharma, Additional Advocate General, Mr. J.K. Verma and Mr. Anil Jaswal, Deputy Advocate Generals for the respondent-State. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Mr. B.C. Negi, Advocate for respondent-University. Mr. Sanjeev Bhushan, Advocate for respondent – National Council for Teacher Education. ________________________________________________________ Per Rajiv Sharma, J. Since common questions of law and facts are involved in these petitions, the same were taken up together for hearing and are being disposed of by a common judgment. CWP No.2495/2009 has been filed by the Himachal Pradesh B.Ed. Colleges Welfare Association seeking quashing of notification dated 13.7.2009 and also for quashing the imposition of condition of 50% marks and CWP No.2781/2009 has been filed on behalf of the students’ community assailing the imposition of condition of 50% marks in qualifying examination. The respondent-University has issued prospectus/brochure for admission to B. Ed course in Department of Education and Colleges of Education in Himachal Pradesh for the academic session 2009- 2010. Para 2 (d) of the prospectus mentions that respondent No.3 has approved total 100 seats, out of which 50 seats in Non-Medical Stream, 30 in Medical Stream, 15 in Arts Stream and 5 in Commerce Stream, which are to be filled up as per 100 point roster. This distribution was subject to change as per orders from competent authority from time to time. Para 3 of the prospectus lays down eligibility for applying to the course. Relevant portion of the same reads thus: “3. Eligibility for Applying to the Course 3 The candidates who wish to apply for the regular course in any of the colleges of Education recognized NCTE and affiliated to H.P. University should fulfill the following criteria. a) The applicant should possess either a Bachelor’s Degree (Medical, Non-Medical, Arts/Commerce) or Master’s degree or any other qualification equivalent there to with at least 50% marks (45% in case of SC, ST, and Ex-serviceman categories) from a recognized university established by law in India. Provided further that for the purpose of eligibility for admission to the course 0.50% or above shall be considered equal to 1%) as per (Notification No.4-9/94-HPU (Acd) dated 27.6.1995) b) The candidate should not be of more than 26 years (General Category boy candidates), 28 years (General category, girl candidates), 29 years (SC and ST candidates both boys and girls) of age, on 1.7.2009. The age for eligibility to admission in case of Ex-serviceman will be calculated by the formula: Actual age-years of service rendered in the services. The age thus calculated should not exceed that of the age of fresh candidates of their respective category.” There are three steams in B. Ed Course, namely, Medical Stream, Non-Medical Stream and Arts/Commerce Stream. Para 4 of the prospectus prescribes the basis of admission, which reads thus: “4. The Basis of Admission The admission to the course will be made strictly on the basis of marks obtained in B.A./B.Sc./B.Com., Post Graduation examinations of any recognized university. Hundred percent of the 4 seats in Deptt. Of Education H.P.U. Shimla and Govt. College of Teacher Education Dharmashala are subsidized and roster of reservation will be applicable on all seats available in the respective institutions. The admissions to all the other colleges of education under self-financing scheme will be made against the subsidized and non-subsidized seats. Out of all the seats available in each college under self-financing scheme, 50% are subsidized and 50% are non-subsidized. 10% of the seats of non- subsidized category have been reserved as ‘Management Quota’. Hence, the university will fill up 95% of the seats in each college under self- financing schemes and 5% will be filled up by the college management strictly in accordance with the eligibility conditions for B.Ed. Course. No deviation from this will be allowed.” The petitioners have also placed on record copy of Appendix-IV laying down the norms and standards for Secondary Teacher Education Programme leading to Bachelor of Education (B. Ed.) Degree. Para 4.0 dealing with the intake, eligibility and admission procedure reads thus: “4.0. Intake, Eligibility and Admission Procedure 3.1. Intake There shall be a basic unit of 100 students divided into two sections of 50 each for general sessions and not more than 25 students per teacher for a school subject for methods courses and other practical activities of the programme to facilitate participatory teaching and learning. 3.2. Eligibility 5 3.2.1. Candidates with at least 45% marks either in the Bachelor’s Degree and/or in the Master’s degree or any other qualification equivalent thereto, are eligible for admission to the programme. 3.2.2. The reservation for SC/ST/OBC and other categories shall be as per the rules of the Central Government/State Government, whichever is applicable. There shall be relaxation of 5% marks in favour of SC./ST/OBC and other categories of candidates. 3.3. Admission Procedure. Admission shall be made on merit on the basis of marks obtained in the qualifying examination and/or in the entrance examination or any other selection process as per the policy of the State Government/U.T. Administration and the University.” Mr. K.D. Shreedhar, Advocate with Ms. Suman Thakur, Advocate have strenuously argued that once the norms have been prescribed by respondent No.3, it was not open for the State to add/improve the same. The precise submission of Mr. K.D. Shreedhar is that once the candidates with at least 45% marks either in Bachelor’s Degree or in Master’s Degree or any other qualification equivalent thereto are eligible for admission to the programme as per Annexure P-3, the State Government could not enhance the same to 50% as enumerated in the prospectus. He has also argued that once the seats have been allotted/allocated by respondent No.3 to the petitioner’s institutions, the same cannot be further distributed by the State Government in the ratio of 50% Arts/Commerce, 25% Medical and 25% Non-Medical Streams. Mr. J.L. Bhardwaj, Advocate has adopted the arguments of Mr. K.D. Shreedhar, Advocate. 6 Mr. R.K. Bawa, learned Advocate General has vehemently argued that it is always open to the State Government to prescribe higher percentage of marks than prescribed by respondent No.3 for professional courses. His precise submission is that the State Government has neither diluted nor deviated from the norms prescribed by respondent No.3 for admission to B.Ed. Course. He has justified the decision of the State Government taken vide Annexure P-7 dated 13.7.2009 whereby the distribution of seats has been prescribed, as noticed above. We have heard the learned counsel for the parties at length and have gone through the pleadings of the parties. The All India Council for Teacher Education i.e. respondent No.3 as per para 4.0 (3.2) has prescribed that the candidates with at least 45% marks either in the Bachelor’s Degree or in the Master’s Degree or any other qualification equivalent thereto are eligible for admission to the programme. The State Government in its own wisdom has prescribed at least 50% marks either in Bachelor’s Degree or in Master’s Degree as per para 3 of the prospectus. Mr. K.D. Shreedhar has strongly relied upon State of T.N. and another versus Adhiyaman Educational and Research Institute and others, (1995) 4 SCC 104 to buttress his submission. He has relied upon para 41 of the judgment, which reads thus: “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 7 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. 8 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 disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the central authority, the State authorities act illegally.” Mr. K.D. Shreedhar on the basis of (1995) 4 SCC 104 (supra) has argued that when the seats are available, it is not open to the State Government to insist that the candidates are not qualified according to its standards. This judgment was rendered by Hon’ble two Judges. The Constitution Bench in Dr. Preeti Srivastava and another versus State of M.P. and others, (1999) 7 SCC 120 was also seized of the matter and has formulated the following point: Who should decide the qualifying marks and will it affect the standard of education? Their Lordships in para 39 of the judgment have laid down that in every case the minimum standard as laid down by the Central statute or under it have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its 9 powers under Entry 25 List-III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down. Their Lordships have held as under: “34. Learned counsel for the States of Uttar Pradesh and Madhya Pradesh contend that it is for the States to decide the qualifying marks which should be prescribed for the reserved category candidates at the PGMEE. It is a matter of State policy. The Medical Council of India cannot have any say in prescribing the qualifying marks for the PGMEE. The two States have contended that it is the State which controls admissions to the post-graduate courses in medicine. It is for the State to decide whether to provide a common entrance examination or not. This examination may or may not have any minimum qualifying marks or it may have different qualifying marks for different categories of candidates. It is, therefore, not open to any other authority to interfere with the rules for admission to the post-graduate medical courses in each State. They have also contended that a common entrance examination is merely for the purpose of screening candidates and since all the candidates have passed the M. B. B. S. examination the standard is not affected even if no minimum marks are prescribed for passing the common entrance examination. The latter argument we have already examined and negatived. The other contention, however, relating to the power of the State to control admissions to the post-graduate courses in medicine requires to be examined. 35. The legislative competence of the Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule 10 as originally in force, Entry 11 of List II gave to the States an exclusive power to legislate on "Education including universities subject to the provisions of Entries 63, 64, 65 and 66 of List-I and Entry 25 of List III." Entry 11 of List-II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows :- "Entry 25, List III : Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I : Vocational and technical training of labour." Entry 25 is subject, inter alia, to Entry 66 of List-I. Entry 66 of List-I is as follows :- "Entry 66, List I: Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions." Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List-I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also co- ordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union Legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher 11 education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List-I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977 education including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254. 36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List-I. For example, a State may, for admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List-I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are: (1) The calibre of the teaching staff; (2) A proper syllabus designed to achieve a high level of education in the given span of time; 12 (3) The student-teacher ratio; (4) The ratio between the students and the hospital beds available to each student; (5) The calibre of the students admitted to the institution; (6) Equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) Adequate accommodation for the college and the attached hospital; and (8) The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged. 37. While considering the standards of education in any college or institution, the calibre of students who are admitted to that institution or college cannot be ignored. If the students are of a high calibre, training programmes can be suitably moulded so that they can receive the maximum benefit out of a high level of teaching. If the calibre of the students is poor or they are unable to follow the instructions being imparted, the standard of teaching necessarily has to be lowered to make them understand the course which they have undertaken; and it may not be possible to reach the levels of education and training which can be attained with a bright group. Education involves a continuous interaction between the teachers and the students. The pace of teaching, the level to which teaching can rise and the benefit which the students ultimately receive, depend as much on the calibre of the students as on the calibre of the teachers and the availability of adequate infrastructural facilities. That is why a lower student-teacher ratio has been 13 considered essential at the levels of higher university education, particularly when the training to be imparted is highly professional training requiring individual attention and on-hand training to the pupils who are already doctors and who are expected to treat patients in the course of doing their post-graduate courses. 38. The respondents rely upon some observations in some of the judgments of this Court in support of their stand that it is for the State to lay down the rules and norms for admission; and that these do not have any bearing on the standard of education. In P. Rajendran v. State of Madras (1968) 2 SCR 786 : (AIR 1968 SC 1012), a Constitution Bench of this Court considered the validity under Articles 14 and 15(1), of district-wise reservations made for seats in the medical colleges. In that case, the Act in question prescribed eligibility and qualifications of candidates for admission to the medical colleges. The Court observed, "So far as admission is concerned, it has to be made by those who are in control of the colleges - in this case, the Government. Because the medical colleges are Government colleges affiliated to the university. In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it, subject to the rules of the university as to eligibility and qualifications. This was what was done in these cases and, therefore, the selection cannot be challenged on the ground that it was not in accordance with the University Act and rules framed thereunder." This Court, therefore, upheld the additional criteria framed by the State for admission which were not inconsistent with the norms for admission laid down by the University 14 Act. Since these additional qualifications did not diminish the eligibility norms under the University Act, this Court upheld the additional criteria laid down by the State as not affecting the standards laid down by the University Act. The question of diluting the standards laid down, did not arise. 39. The respondents have emphasised the observation that admission has to be made by those who are in control of the colleges. But, the question is, on what basis? Admissions must be made on a basis which is consistent with the standards laid down by a statute or regulation framed by the Central Government in the exercise of its powers under Entry 66, List I. At times, in some of the judgments, the words "eligibility" and "qualification" have been used interchangeably, and in some cases a distinction has been made between the two words - "eligibility" connoting the minimum criteria for selection that may be laid down by the University Act or any Central Statute, while "qualifications" connoting the additional norms laid down by the colleges or by the State. In every case the minimum standards as laid down by the Central Statute or under it, have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.” This question has also been gone into by their Lordships of the Hon’ble Supreme Court in State of T.N. and another versus S.V. Bratheep (minor) and others, (2004) 4 SCC 513. Their Lordships have held as under: 15 “9. Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form as exclusivity in the matter of admission but if certain prescription of standards have been pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards-laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by the AICTE. It is no doubt true that the AICTE prescribed two modes of admission - One is merely dependent on the qualifying examination and the other dependent upon the marks obtained at the Common Entrance Test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it ? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription 16 made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either even, the streams proposed in which the High Court has proceeded is that what has been prescribed by the AICTE is inexorable and that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr. Preeti Srivastava's case. It is no doubt true