IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 27.2.2006 Coram THE HONOURABLE MR. A.P.SHAH, THE CHIEF JUSTICE and THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN Writ Petition Nos.3951, 4796 and 4826 of 2006 Minor Nishanth Ramesh rep. by Mother/Natural Guardian .. Petitioner in Mrs. Sandhya Ramesh W.P.No.3951 of 2006 Minor Nikita Gandhi rep. by Father/Natural Guardian .. Petitioner in Mr.Jayaprakash Gandhi W.P.No.4796 of 2006 Joshua Dhivyan, G.(Minor) rep. by his Father .. Petitioner in Rev.E.C.Gnana Sekhar W.P.No.4826 of 2006 Vs. The State of Tamil Nadu rep. by its Secretary to Govt. Education Department, .. 1st Respondent in Fort St. George, Chennai-9. W.P.No.3951 of 2006 and 4826/06 and Respondent in WP NO. 4796/06 The Selection Committee rep. by its Chairman, Directorate of Medical Education, Kilpauk, Chennai-600 010. The Director, Directorate of Medical Education, Kilpauk, .. RR 2 and 3 in Chennai-600 025. W.P.No.4826 of 2006. https://hcservices.ecourts.gov.in/hcservices/ Pattali Makkal Katchi (PMK) Students Wing, Rep. by its State Secretary, K.Saravanan. .. R2 in W.P.No.3951/06 (impleaded vide order dt.27.2.06 by Hon’ble CJ & PSDJ in W.P.M.P.No.5314/06) For petitioners :: Mr.K.M.Vijayan, S.C. For Mr.R.Suresh Kumar Mrs.Nalini Chidambaram, SC for Ms.Gladys Daniel For respondents :: Mr.Mukul Rohati, S.C. and Mr.N.R.Chandran, A.G. and Mr.A.L.Somayaji, Addl.A.G. Assisted by Mr.V.Karthikeyan, AGP Mr.R.Thiagarajan, SC for Mr.K.Balu for impleaded respondent Petitions under Article 226 of the Constitution of India, praying that in the circumstances stated therein and in the respective affidavits filed therewith, the High Court will be pleased to issue writs of 1. Declaration a. Declaring the Tamil Nadu Regulation of Admission in profession Courses Act, 2006 (Tamil Nadu Act 2 of 2006) as illegal unconstitutional and without legislative competence violating the Judgment of the Apex Court and the High Court of Madras holding the conduct of common Entrance Test is essential and cannot be dispensed with, consequently directing the respondents to conduct common Entrance Test for admission to all professional courses in the State of Tamilnadu for the academic year 2006-2007 (W.P.3951/06 )and b. declaring the Tamilnadu Regulation of Admission in professional Courses Act 2006 as unconstitutional arbitrary and violative of Article 14 of the Constitution of India (W.P. No. 4826/06) II. Mandamus for hearing the respondent herein from in any manner dispensing with the common entrance test for admission to professional Courses for the Academic Year 2006-2007 against the Judgment of this Court and the Apex Court (W.P.No.4796/06) respectively. https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was made by The Honourable The Chief Justice) These writ petitions raise a short but an important question as to the constitutional validity of the Tamil Nadu Regulation of Admission in Professional Courses Act 2006 (Tamil Nadu Act 2 of 2006), hereinafter for brevity’s sake called the "Act". Since common questions of law and fact are involved, we have heard all the cases together and disposing them of by this judgment. 2. In W.P.No.3951 of 2006, Minor Nishanth Ramesh vs. State of Tamil Nadu (which we are treating as the lead case), the petitioner is a Plus two student of Vidya Mandhir School, affiliated to Central Board of Secondary Education (C.B.S.E.), Chennai. The Tamil Nadu State Board, I.S.C. and C.B.S.C. are the three Boards which offer Plus two course in the State of Tamil Nadu. 3. It has been alleged that ever since 1984, the admission to the professional colleges in the State of Tamil Nadu was governed by G.O.Ms.No.657, dated 29.5.1984. The said Government Order prescribed admission to the professional college on the basis of qualifying examination (Plus two) and Common Entrance Test on the basis of the State Board Syllabus for all the Board students. The inter se merit for admission to the professional college on the basis of 200 marks for qualifying exam and 100 marks for Common Entrance Test in total 300 marks, was taken in common for all the Board students. In the year 2005, by G.O.Ms.No.184, the State Government abolished Common Entrance Test for admission to professional colleges. That was successfully challenged by a student N.Priyadharshini. A Division Bench of this Court was pleased to strike down the said G.O. in a reported judgment in Priyadharshini N. vs. The State of Tamil Nadu represented by its Secretary to Government, Education Department, Chennai (2005 (3) CTC 449). 4. It has been further alleged that the State of Tamil Nadu by Act 2 of 2006 has passed a legislation which on the one hand dispensing with Common Entrance Test to State Board students, introduced Common Entrance Test for the other Board students alone as eligibility test for admission to professional colleges in the State of Tamil Nadu. The Act thus seeks to scrap the Common Entrance Test for State Board students while making it mandatory for students of other Boards. This is a blatant discrimination against the students studying in non-State Board when compared to State Board students. The State Board students are at an advantageous position as they are exempted from https://hcservices.ecourts.gov.in/hcservices/ writing the Common Entrance Test, whereas the students from other Boards are required to write Common Entrance Test. The provisions of the Act are thus discriminatory, arbitrary and violative of Article 14 of the Constitution. 5. It is alleged that in the matters relating to admission, the State cannot follow a procedure which is inconsistent with the procedure prescribed by the Medical Council of India Regulations and the All India Council for Technical Education Regulations. The subject relating to determination of standards in institutions for higher education or research and scientific and technical institutions falls under Entry 66 of List I of the Seventh Schedule and the State legislature has no legislative competence to enact the present law determining the procedure for admission to professional courses. To that extent, the Act is ultra vires the Regulations of MCI and AICTE which have an overriding power under the scheme of the Constitution. It is alleged that the Act in the present form constitutionally violates the MCI and AICTE Regulations and orders of the Supreme Court governing admission to professional courses. 6. In the light of the challenge raised by the petitioners, we may now examine the provisions of Tamil Nadu Act 2 of 2006. The preamble of the Act states that it has been enacted to regulate admission to professional degree courses such as engineering, medicine, dental, agriculture and other incidental and ancillary courses thereto. Sections 2(b), 2(d), 2(h), and 2(n) define “Arrival of eligibility marks”, Common Entrance Test”, “Cut-off marks” and “Qualifying eligibility” respectively as follows: “Section –2: In this Act, unless the context otherwise requires;- (b) “Arrival of eligibility marks” means the comparison of the marks of students who have passed, qualified and obtained eligible cut-off marks as prescribed by the Authorities of the respective institutions or Universities who decide it as marks for admission based on the marks of the students who have passed the Higher Secondary Board Examinations conducted by the Department of Education, Government of Tamil Nadu and the marks of such of those students who have obtained such eligibility criteria marks wholly through the Common Entrance Test which are conducted only to those students who are drawn from disciplines other than curriculum offered by the Board of Higher https://hcservices.ecourts.gov.in/hcservices/ Secondary School Examinations of the Government of Tamil Nadu; (d) “Common Entrance Test” means an Entrance Test in the Common Entrance Test Syllabus, conducted by the State Government or an University or an Authority or an agency authorized by the Government of Tamil Nadu for the purpose of admission to a professional course so as to arrive at an equation or standardization of only to those students of different styles or patterns of School final Examinations or curriculums such as Central Board of Secondary Education so as to compare the eligibility criteria for Professional Course with that of students who have qualified by passing through the Tamil Nadu State Board Examinations conducted at the Higher Secondary (Plus two) level; (h) “Cut-off marks” means the highest marks prescribed by the respective authorities in whichever discipline it may be or whichever Bachelor Degree Course it may be and the same shall be based upon the marks valued and obtained in the Higher Secondary School Leaving Certificate Course conducted by the Board of Secondary Examinations, Government of Tamil Nadu, at the Higher Secondary (Plus two) level, and the equivalent marks obtained in the Common Entrance Test by other students namely, Central Board of Secondary Education or Indian School Leaving Certificate Course or any other State Board of any other State or any other School final (twelfth standard) qualifying certificate. Explanation:- The students who hold the Higher Secondary School Leaving Certificate after successfully completing the examinations conducted by the Board of Higher Secondary School Examinations so authorized by the State Board at the Higher Secondary School level (Plus two) need not undergo the Common Entrance Test since the cut- off marks are to be fixed only on the basis of the marks obtained in the examinations conducted by the Board of Secondary Examinations at the Higher Secondary (Plus two) level, Government of Tamil Nadu; https://hcservices.ecourts.gov.in/hcservices/ (n) “Qualifying Eligibility” means the students who possess the eligible marks for admission by passing the Higher Secondary Examination conducted by the Board of Higher Secondary Examinations in Higher Secondary (Plus two) level in Tamil Nadu conducted under the Department of Education, Government of Tamil Nadu. 7. Section 3 provides that the marks obtained in the qualifying examination conducted by the State Board at the twelfth standard (Plus two) level to its students shall be the basic marks for admission. The students of other disciplines or Boards or streams will have to take a Common Entrance Test which is of the same syllabus as the State Board plus two level, and the State Board students are not required to take this test. Section 5 provides for evaluation of students of various other Boards with State Board students. It reads as under:- “The equation of students who have qualified through various Boards or various streams from which the students are drawn shall be done only after they undergo the Common Entrance Test based on the syllabus of the State Board and the marks obtained in such a Test shall be equated with the marks obtained by the students in the plus two examination of the State Board conducted by the Board of Higher Secondary Examinations of the Government of Tamil Nadu.” 8. Section 6 provides that Common Entrance Test shall not be applicable to State Board Students and the marks obtained by them shall be the base cut-off marks to which the students of other disciplines as enumerated in the Act shall qualify through the Common Entrance Test. Section 7 provides that the admission criteria for all kinds of students shall be on the cut-off marks equated by treating the marks obtained on the syllabus of State curriculum prescribed by the Board of Higher Secondary Education, Government of Tamil Nadu as the basis for admission. Section 8 makes the provisions of Section 4 of the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of appointments of posts in the Service under the State) Act, 1993 (Tamil Nadu Act 45 of 1994) applicable to the admission for the professional courses. Section 10 confers on the State Government power to make rules for carrying out the purposes of the Act. 9. In exercise of the powers conferred by the Act, the State Government has framed the Tamil Nadu Regulation of Admission in Professional Courses Rules, 2006. Rule 2(ii) https://hcservices.ecourts.gov.in/hcservices/ defines “Students of Boards other than State Board” to mean the students who have taken school curriculum either by means of Central Board of Secondary Education or Indian School Leaving Certificate Course or any other Board other than the State Board in Tamil Nadu or any other school qualifying certificate which is treated to be equivalent to the Board of Secondary Examinations in Higher Secondary Course conducted by the State Board in Tamil Nadu. Rule 4 provides that a “Common Merit List” will be prepared by computing the aggregate marks obtained by the students, in the related subjects (theory and practical mentioned in the prospectus), in the twelfth standard (Plus two) examination conducted by the State Board and by computing the aggregate marks obtained by the students, other than the State Board, who appeared for the qualifying examination, in the Common Entrance Test (theory and practical mentioned in the prospectus), based on the State Board syllabus in the appropriate ratio. Rule 7 contemplates “voluntary sharing of seats by unaided professional colleges” and for that unaided professional colleges may voluntarily give, in writing their consent to the Government or to the Director of Government Examinations, Government of Tamil Nadu or to the authority or authorities specified in Rule 6. While, doing so, they shall intimate clearly the number of seats they will be surrendering to the Government of Tamil Nadu for making admission through its Single Window System by following the rule of reservation as provided in the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of appointments of posts in the services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994). 10. The aforesaid provisions of the Act including its preamble make it abundantly clear that the sole object of the Act is to abolish Common Entrance Test for the students of State Board while making it mandatory for the students of other Boards. Section 3 of the Act expressly provides that as far as State Board students are concerned the marks obtained in the qualifying examination conducted by the State Board i.e., twelfth standard (Plus two) level examination shall be the basis for admission. Whereas the students of other disciplines or Boards or streams will take a Common Entrance Test which is of the same syllabus as that of the State Board (Plus two) level. This position is further made clear by Section 4 which states that the Common Entrance Test is meant only to those students who have not studied under the State Board syllabus meant for Higher Secondary Examination conducted by the Tamil Nadu State Board. Thus, the students of the other Boards who have passed the Higher Secondary Examinations conducted by the respective Boards will not be eligible for admission to professional courses unless they write a Common Entrance Test. Section 5 provides that the equation of students who https://hcservices.ecourts.gov.in/hcservices/ have qualified through other Boards or streams shall be done only after they undergo the Common Entrance Test based on the syllabus of the State Board and the marks obtained in such a Test shall be equated with the marks obtained by the students in the Plus two examination of the State Board conducted by the Tamil Nadu State Board. Section 7 then states that the admission criteria for all kinds of students shall be on the cut-off marks equated by treating the marks obtained on the syllabus of State Curriculum prescribed by the State Board. It is pertinent to note that though section 8 read with Section 2(k) makes the provisions of Section 4 of the Tamil Nadu Act 45 of 1994 applicable to the admission to all professional courses, Rule 4 of the Rules specifically provides that there will be only seat-sharing arrangement in unaided professional colleges and no reservation will be provided in the unaided colleges under Tamil Nadu Act 45 of 1994. During the course of hearing it was also clarified on behalf of the State Government that the reservations will not apply to minority institutions. 11. The question that falls for consideration is whether the State enactment falls within Entry 66 List I or Entry 25 List III – Concurrent List of the Seventh Schedule to the Constitution. The second question is assuming that the enactment falls under Entry 25 List III whether it is violative of right of equality guaranteed under Article 14 of the Constitution. 12. We may now examine the provisions of the relevant Central Laws. In exercise of power under Indian Medical Council Act, 1956 the Central Government has framed Regulations on Graduate Medical Education, 1997. The relevant part of the Regulations on Graduate Medical Education, 1997 reads as follows:- "MEDICAL COUNCIL OF INDIA SALIENT FEATURES OF REGULATIONS ON GRADUATE MEDICAL EDUCATION, 1997 PUBLISHED IN PART III, SECTION 4 OF THE GAZETTE OF INDIA DATED 17TH MAY 1997 1. Short Title and commencement:- (1) These regulations may be called the "Regulations on Graduate Medical Education, 1997". (2) They shall come into force on the date of their publication in the Official Gazette. https://hcservices.ecourts.gov.in/hcservices/ Admission, Selection, Migration and Training Admission to the Medical Course – Eligibility Criteria : No candidates shall be allowed to be admitted to the Medical Curriculum of first Bachelor of Medicine and Bachelor of Surgery (MBBS) Course until: 1. He/She shall complete the age of 17 years on or before 31st December, of the year admission to the MBBS course. 2. He/She has passed qualifying examination as under: (a) The higher secondary examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a period of 12 years study, the last two years of study comprising of Physics, Chemistry, Biology and Mathematics or any other elective subjects with English at a level not less than core course of English is prescribed by the Naional Council of Educational Research and Training after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on education. (b) .............. (c) .............. Selection The selection of students to medical college shall be based solely on merit of the candidate and for determination of the merit, the following criteria be adopted uniformly throughout the country: 1. In states, having only one Medical College and one University board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration. 2. In states, having more than one university/board/examining body conducting the qualifying examination (or where there is more than one medical college under the administrative control of one authority) a competitive entrance https://hcservices.ecourts.gov.in/hcservices/ examination should be held so as to achieve a uniform evaluation as there may be variation of standards at qualifying examinations conducted by different agencies: 3. Where there are more than college in a State and only one University/Board conducting the qualifying examination, then a joint selection board be constituted for all the colleges. 4. A competitive entrance examination is absolutely necessary in the cases of Institution of All India character." 13. So far as admissions to engineering colleges are concerned, there are AICTE Regulations similar to the Medical Council Regulations. In exercise of powers conferred by Section 23(1) of the All India Council for Technical Education Act, 1987 the All India Council for Technical Education has prescribed the following guidelines for admission to students in Engineering and Diploma courses pursuant to Section 2(o) of the said Act, which states that the Council may: "Provide guidelines for admission to students to technical institutions and Universities imparting technical education." Guideline No.3 of the aforesaid Guidelines states: "Entrance tests.- All States/Union Territories (Uts) should conduct entrance tests in the subjects of Physics, Chemistry and Mathematics at 12+ level. The entrance test should be common to all engineering degree institutions in the State/UT. The minimum marks for eligibility for the entrance test need not be prescribed in the case of degree courses and all students who have passed the qualifying examination may be permitted to appear in the entrance test. Only the merit ranking in the entrance test should be the basis for admission to engineering degree programmes. Such test should be conducted by appropriate agencies set up for the purpose." https://hcservices.ecourts.gov.in/hcservices/ In addition to the above, Regulation 7 of the A.I.C.T.E. Regulations states: " A common merit list in accordance with the provisions of sub-regulation (5) shall be prepared from amongst all the candidates provided that in States where no such entrance examination shall be held for admissions to be made from the academic year 1995." 14. Similar provision is also there with regard to Dental Colleges vide Dental Council of India B.D.S.Course Regulation, 1996 which states: "Selection of Students.- (a) The selection of students to a Dental College should be based solely on merit of the candidate and for determining the merit the marks obtained at the qualifying examination conducted by the Board/Examining body conducting such examination, be taken into consideration exception being MBBS degree holders. (b) In States, having more than one University/Board/Examining Body conducting the qualifying examination (or where there are more than one Dental College under the administrative/control of one authority) a competitive entrance examination may be held so as to achieve a uniform evaluation due to variation of the standard of qualifying examinations conducted by different agencies. (c) A competitive entrance examination is absolutely necessary in the case of Institutions of all India character." 15. The 1997 Regulation (quoted above) makes it clear that in States having only one Medical College and one University board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration for granting admissions in M.B.B.S. Course. However, in States having more than one university/board/examining body, an entrance examination is mandatory. This is because, as pointed out by several judgments of the Supreme Court, different examining bodies have different standards of marking, different syllabus etc. and hence a student who appears for the examination conducted by an examining body which is stringent in granting marks will be discriminated vis-a-vis https://hcservices.ecourts.gov.in/hcservices/ a student who appears for the examination conducted by an examining body which is liberal in granting marks. This will be violative of Article 14 of the Constitution as held in the said decisions. The 1997 Regulation has statutory force as under Section 33 of the Indian Medical Council Act, 1956 it will amount to delegated legislation. In Andhra Bank Vs. B.Sathyanarayanan, 2004 (2) SCC 657 (vide para-10) it was held by the Supreme Court that a valid regulation once framed would be part of the statute. Similarly, in St. Johns Teachers Training Institute Vs. Regional Director, 2003 (3) SCC 321 the Supreme Court observed (SCC page 332):- “Regulations made under power conferred by the statute are subordinate legislation and have the force and effect, if validly made, as an Act passed by the competent legislature. (See Sukhdev Singh Vs. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331.)” In the instant case, it is not disputed by the respondents that the regulations in question have been validly made under the power conferred by the statute, and hence, they have to be treated as part of the relevant statute itself. 16. The submission of Mr.K.M.Vijayan and Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the petitioners is that the State Legislature is not competent to legislate on the matter relating to eligibility and selection for admission to professional courses, which is governed by the Central Legislation under Entry – 66 of List – I of the Constitution of India like MCI Act, AICTE Act, etc. The Common Entrance Test is mandatory in the State of Tamil Nadu since there are several examining Boards in the State. In the legislative field exclusively given to the Parliament under Entry – 66 of List – I of the Constitution the State has no competence to pass any legislation under Entry – 25 of List III of the Constitution. For proper consideration of the submission, we may set out these two entries:- Entry 66 List I: Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. 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. https://hcservices.ecourts.gov.in/hcservices/ 17. Till January 3, 1977, education was a State subject under Entry 11 in List II. By the Forty-second Amendment Act 1976, Entry 11 was deleted and it was placed in the Concurrent List by enlarging the