IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.07.2007 CORAM: THE HON'BLE MR.JUSTICE A.P. SHAH, CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE P. JYOTHIMANI. WRIT APPEAL NOS.494, 812 and 495 of 2007 P. Arunkumar .. Appellant in WA.No.494&495/2007/Petitioner in WP.32552/07 & 18384/06 J. Jotheebun .. Appellant in WA.No.812 of 2007/Petitioner in WP.No.36500/06 vs. 1.The State of Tamil Nadu rep. By its Secretary to Government Education Department Fort St. George, Chennai 9. 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 WA.No.494 of 2007 1.Christian Medical College Vellore Association rep. By its Secretary Vellore, Tamil Nadu. 2.The Permanent Committee for the Conduct of Common Entrance Examination in Private Colleges NCB 7A Greenways Road Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3.The State of Tamil Nadu rep. By its Secretary (Health) Fort St. George, Chennai. 4.The State of Tamil Nadu rep. By its Secretary (Education) Fort St. George, Chennai. 5.The Tamil Nadu Dr.M.G.R. Medical University rep. By its Registrar 40-A, Anna Salai Chennai 32. .. Respondents in WA.No.495 of 2007/Respondents 1to4 in WP.No.18364/06 1.Christian Medical College Vellore 632 002 rep. By its Registrar Vellore 632 002 Tamil Nadu. 2.Tamil Nadu Dr. M.G.R. Medical University No.69 Anna Salai Guindy, Chennai 32 rep. By its Registrar. 3.The State of Tamil Nadu rep. By its Secretary to Government Education Department Fort St. George, Chennai 9. .. Respondents in WA.No.812 of 2007/Respondent in WP.36500/06 Writ Appeals are filed under Clause 15 of the Letters Patent Act against the Common Order of the learned single Judge dated 13.02.2007 made in WP.Nos. 32522, 18384 and 36500 of 2006 respectively. 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. https://hcservices.ecourts.gov.in/hcservices/ 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. For appellant : Mr. R. Muthukumarasamy,Sr.Counsel in WA.494/07 for Mr. K. Ravichandra Babu For Appellant : Mr. A. L. Somayaji, SC, for in WA.495/07 Mr. K. Ravichandra Babu, For appellant : Mr.Vineet Subramani in Wa.812/07 for Mrs. Gladys Danial For R3 in WA.494: Mr.Anil Divan,Sr.Counsel R1 in WA.495/07 Assisted by Mr.Krishna Srinivas & for M/s. Ramasubramaniam Associates For R1 in WA.494: Mr. Raja Kalifulla R3&R4 in WA.495 Government Pleader & R3 in WA.812/07. For R2 in WA.494/07 and R5 in WA.495/07/ not Served not appeared Not ready in Notice reg R1 to R2 in WA.no.812/2007 .. COMMON JUDGEMENT (DELIVERED BY P. JYOTHIMANI,J.) These writ appeals are directed against the common order passed by the learned single Judge dated 13.02.2007 made in W.P.Nos.32522, 18384 and 36500 of 2006 respectively, by which the writ petitions filed by the Christian Medical College, Vellore in W.P.No.18384 of 2006, stood allowed by setting aside the portion of the order of the Permanent Committee for the Conduct of Common Entrance Examination in Private Colleges, dated 10.06.2006 invalidating allotment of six seats for children of the members of the Staff of the Institution (CMC) and dismissing the other two writ petitions filed by the students in W.P.Nos.32552 and 36500 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 2. The first respondent Christian Medical College (CMC), Vellore (hereinafter referred to as “Institution”), is a Christian Minority Un-aided Professional Medical College, affiliated to the Tamil Nadu Dr.M.G.R. Medical University. The said institution is a registered Society, consisting of nearly 53 different Indian Christian Churches and Christian Organisations situated almost all the States in India with the objective of promoting education and consequential health care to students and patients belonging to the length and breadth of India and also several neighbouring countries. This institution has been in existence for the past 100 years, admitting students in Unaided, Non-capitation Fee with minority status based on merit on all India basis by conducting All India Common Entrance Examination, followed by an in-depth interview and the said method is stated to have been in vogue for the past 55 years. 2(a). The said Institution has started its first Post-Graduate programme in 1950 and as on date there are 11 Post-Graduate Medical Diploma courses; 20 Post-Graduate Medical Degree Courses and 9 Higher Speciality courses approved by the Tamil Nadu Dr.M.G.R. Medical University. That apart, there are M.Sc., courses in 4 Medical Sciences and 21 Departments are recognised for Ph.D., training. 2(b). In respect of M.B.B.S. course conducted by the Institution, the total sanctioned strength of the students is 60. Out of the total strength 84% of the seats, viz., 50 seats are reserved for candidates from Christian minority community; remaining 16% of seats, viz., 10 seats are filled up in the following manner: (i) 7 seats are filled up on all India Open Competition basis; (ii)2 seats reserved for SC/ST category of students; and (iii)1 seat for candidate nominated by the Government of India. The remaining 50 seats are filled up in the following manner: (i)10 seats are filled up from the Christian candidates from socially and economically backward States; (ii)Out of the remaining 40 seats, 6 seats are filled up from the children of the eligible members and staff of the Institution in lieu of NRI quota and the remaining 34 seats are filled up from among Christian minority candidates on the basis of All India Open Competition. 2(c). The method of selection is by conducting All India Common Entrance Examination for 40% weightage; Tasks test with 20% weightage and interview by Group Observers with 40% weightage. With regard to Christian minority students, out of the 40% weightage for interview, 10% is for written test on Bible knowledge and the remaining 30% for oral interview. The written tests are conducted for 300 marks in five subjects, viz., Physics, Chemistry, Biology, General ability, Speed and Accuracy. The marks obtained by the candidates are subsequently made in the form of Grade under the “Stanine Grading System” and according to the Institution, selection in the said manner https://hcservices.ecourts.gov.in/hcservices/ is in vogue for the past many years without any complaint whatsoever only based on merit in a transparent manner and without any exploitation. 2(d). It is also the case of the Institution that no capitation fee is collected from the students selected and the tuition fees itself is much less than even the fees fixed by the Government. Since the students belonging to minority are drawn through out India all live together in the campus with practical demonstration and national integration. 2(e). It is the case of the Institution that the students of minority category who are admitted, have to give a commitment to go back after the completion of the Under Graduate education and work for atleast two years in the hospitals run by the Churches. According to the Institution, the process of selection is proved to be a grand success. When the State Government insisted for implementation of the scheme as framed by the Supreme Court in Unni Krishnan's case (1993 (4) SCC 111), the Institution has moved the Supreme Court in 1993 by filing Writ Petition No.482 of 1993 under Article 32 of the Constitution of India, which was admitted and the Supreme Court was pleased to grant interim orders, permitting the Institution to carry on its own admission procedure and similar orders have been passed till 2003. After the judgement of the Supreme Court in Islamic Academy of Education vs. State of Karnataka (2003 (6) SCC 697) in the year 2003, by which the State Government has constituted Two Committees and pending the constitution of such Committees also the Supreme Court has permitted the Institution to follow the previous practice in respect of admission, which has been followed for the past 55 years. 2(f). Likewise, in the year 2004-2005 also when the Committees were yet to be constituted by the State Government, on filing of Writ Petition in W.P.No.7380 of 2004, this Court in WPMP.No.8728 of 2004 has granted an order of interim injunction on 04.03.2004, restraining the respondents therein from interfering with the admission of students to the medical and other courses for the academic year 2004- 2005 by the Institution. When a clarification was sought for in the Supreme Court in respect the decision rendered in 2003 (6) SCC 697 (cited supra), in the writ petition filed by Catholic Bishop's Conference of India Society for Medical Education running the institution like St. Johns Medical College, Bangalore, in W.P.No.330 of 2004, the Supreme Court by an order dated 30.07.2004, has clearly recognised the rights of the said institution, including that of CMC, Vellore to follow their own procedure for admission. Ultimately, after that, the institution has also filed an intervening petition in I.A.No.5 of 2005 in W.P.No.330 of 2004. The Apex Court by order dated 12.08.2005 has held that Minority Un-aided Educational Institutions are protected by Article 30(1) of the Constitution of India and they are free to admit all students of their own community and that the States have no right to enforce the policy of reservation on them. At the same time, the Supreme Court has also held that the States were entitled to constitute Committees for monitoring the admission procedure and determining fee structure respectively to avoid exploitation and to preserve merit and transparency in admission. https://hcservices.ecourts.gov.in/hcservices/ 2(g). It is the case of the Institution that after the State Government has constituted the Permanent Committee for Common Entrance Test for Private Educational Institutions, it has dismissed the application made by the College on 12.07.2005. The petitioner has filed I.A.No.6 of 2005 in W.P.No.261 of 2003 in the Supreme Court, praying for an order of stay of the Committee and also for direction to the Institution to continue to admit students as per the practice in vogue for the past 55 years. The Supreme Court by an order dated 25.07.2005, while staying the portion of the order of the Committee dated 12.07.2005, permitted the Institution to follow the same procedure of admission as it was held in the year 2004-2005. 2(h). After the Supreme Court has disposed of the batch of cases in P.A. Inamdar vs. State of Maharashtra (2004 (8) SCC 139), the above interim orders passed by the Supreme Court in respect of the Institution have been merged. In the meantime, for admission in the year 2006-2007, the members of the governing council of CMC, Vellore, have devised a new mechanism, by effecting changes based on the observations made by the Permanent Committee in the order dated 12.07.2005. The Committee has taken exception in respect of the filling up of 39 seats based on the sponsorship of candidates from the members of the Churches and Organisations based on interse merit. It was based on the observation of the Committee, the Council governing the Institution has taken a decision that in respect of 34 seats, the selection should be from among the Christian minority candidates on All India Open Competition basis by removing the sponsorship. For the academic year 2006-2007, when the Institution has issued notification for admission of students and at that time when a representation was made to the Committee, the Committee, has permitted the Institution to have its own admission procedure by order dated 10.06.2006, recognising the basis and procedure adopted as being fair and non- exploitative, however, took exception in respect of admission of six candidates from the children of eligible members of the staff of the Institution. It is, as against that portion of the order of the Committee dated 10.06.20096, the College has filed W.P.No.18384 of 2006. 3. The petitioners in W.P.No.32552 and 36500 of 2006 were students, who have applied for admission to MBBS course in the year 2006-2007 and in the Entrance Examination conducted by the Institution, the writ petitioner in W.P.No.32552 of 2006 was given “B” Grade, which is in between 79% to 89%. Likewise, the petitioner in W.P.No.36500 of 2006 was given “B+” Grade in the entrance examination, having obtained the mark between 90 to 96%. They have also participated in the Group Task as well as Interview, in which according to them, they have fared very well. However, they were not selected for the year 2006-2007 and therefore they have filed Writ Petitions for direction against the Institution to admit them based on the marks obtained by them in the Entrance Examination, contending inter-alia that they also belong to the Christian minority, but the method of selection followed by the Institution is not transparent or understandable. It was their further case that the 10 students out of 50 allotted to minority candidates are admitted from the States like North-Eastern States, wherein Christians were non-minority, that https://hcservices.ecourts.gov.in/hcservices/ admission to six students of eligible staff members of the Institution is not legal, that non-publishing of rank list in the Entrance Examination vitiates the process of selection, apart from other grounds. It is also their case that by the selection process followed by the Institution, the triple test enunciated by the Supreme Court, viz., Merit, Transparency and Non-exploitative has not been scrupulously followed and therefore, the selection process is bad. It is their further case that more than 40% marks allotted for interview is against the decision of the Supreme Court, wherein a ceiling limit of 15% marks was fixed for interview. Further, the Institution is not entitled to claim protection under Article 30(1) of the Constitution of India, since it has not admitted predominant students of Christian minority belonging to the State of Tamil Nadu, even though a sprinkling of such students could be admitted from other States. 4. The learned single Judge has formulated the contentions raised on behalf of the said writ petitioners/students in the following five heads, which reads as under: “ (a) The Institution conducts (i) a Common Written Entrance Examination to which 40% of the marks are allotted, (ii) certain tests terms 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 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 actually admitted only 5 candidates belonging to the Christian minority community from the State of Tamilnadu, thereby failing the test of “State as https://hcservices.ecourts.gov.in/hcservices/ 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. “ 4(a). After considering each and every one of the points raised, the learned Judge, while dismissing the writ petitions filed by the students and allowing the writ petition filed by the Institution has held that, allotting of 40% of the total marks for interview in the selection process adopted by the Institution cannot be blindly held to be vitiated. In respect of the selection process, viz., Stanine Grading, Group Tasks followed by the Institution, the learned Judge has held that, inasmuch as the method of procedure has been adopted for many years even though the process is complicated, it was evaluated by the specialists in the field, and the same cannot be lightly set at naught. 4(b). Regarding the issue relating to the number of students belonging to minority to be admitted from State of Tamil Nadu, the learned Judge, relying on the ratio laid down by the Supreme Court In re Kerala Education Bill, 1957, AIR 1958 SC 956, wherein the “Twin Object Test” was laid down and by taking into consideration of the status of the Institution, which is belonging to Christian minority, conducting examination on all India basis and on the application of the wider sense of the word minority has held that there is no error on the part of the Institution in admitting large number of Christian minority students from other States. 4(c). While dealing with the admission of 10 seats reserved for the Christian students from the States where they are majority, considering that on fact, only one Christian student from Mehalaya State, wherein Christians are majority was admitted, and therefore, the same can be considered only as a sprinkling, which is permitted in Kerala Educational Bill case (cited supra) upto the latest judgement of the Supreme Court in P.A. Inamdar's case (2004 (8) SCC 139), the learned Judge has held that the contention raised in that regard was not tenable. https://hcservices.ecourts.gov.in/hcservices/ 4(d). While dealing with the six seats for children of staff members of the Institution, the learned Judge has approved the same on the principle of institutional preference and also on the basis that such preference will strengthen the value base and moral para-meters, for which the Institution stands. 5. It is, as against the said common order of the learned single Judge, the above appeals are filed. The order of the learned single Judge is assailed by the appellants on various grounds, viz., “ (i) The procedure adopted by the Institution for selection is unfair and not transparent; (ii) The stanine grading system is not only un-understandable and in that sense of view, the procedure is not transparent and therefore, the selection based on the same cannot be held to be based on merits; (iii) The selection process consist of 40% for Entrance Examination while the remaining 60% is in effect allotted for oral interview even though it is stated that 20% is for Group Tasks. In view of the above said predominant role given for oral interview in the selection process, the entire process of selection is vitiated, since the Supreme Court in St. Stephen's case (1992 (1) SCC 558) has held that 15% for the oral interview can be the permissible limit generally; (iv) In the oral interview, questions were posed to the students which are not only irrelevant to the course to which they have applied, but such questions which can have different answers in common parlance and there are no proper guidelines for the purpose of assessing the value of the students and therefore, the selection process should not be termed as non- exploitative in nature; (v) The selection process is against the principles laid down by the 11 Judge Bench decision of the Supreme Court in T.M.A. Pai Foundation case (2002 (8) SCC 481). (vi) The reservation for the Wards of staff is illegal. The seats which are allotted for NRIs cannot be granted to the children of the staff members of the Institution.” 6. Mr.R. Muthukumarasamy, learned senior counsel appearing for the appellant in W.A.No.494 of 2007 would submit that the procedure adopted by the Institution is non-transparent and unfair and opposed to the law declared by the Supreme Court in P.A.Inamdar's case (2004 (8)SCC 139). https://hcservices.ecourts.gov.in/hcservices/ 6(a) He further submitted that by the process of evaluation of answer sheets in the Entrance Examination, by which the arithmetical marks are converted into stanine grade and later sought to be evaluated for 40%, while the remaining 60% is assigned for Bible test, Group Tasks and interview in the form of 10, 20 and 30 marks respectively, has resulted in the candidates obtaining higher marks in the Entrance Examination to get lesser rank on account of the stanine grading and also in the Group Tasks and oral interview and the said process is opposed to the law laid down by the Supreme Court in T.M.A. Pai Foundation case (2002 (8) SCC 481). 6(b). He would also submit that in paragraphs 58 and 59 of the judgement in T.M.A. Pai Foundation case,the Supreme Court has held that in respect of professional education, greater emphasis must be shown on merit, which is usually determined on the basis of the marks obtained in the qualifying examinations, followed by interview or by common entrance test. Basing reliance on the judgement of the Supreme Court in P.A. Inamdar's case he submits that there should be distinction between professional and non-professional educational institutions and in respect of professional education, merit and excellence alone should be the criteria and by applying the above said tests, according to the learned senior counsel, the procedure should be deemed to be non-transparent and unfair and cannot be termed as merit based. 6(c). He would further submit that allotting of 20% for Group Tasks and 30% for interview shows that the same has no connection with the merit of the candidate at all. It is also his submission that when the applicants are in the age group of 17 to 19 years, such a high percentage given for oral interview can only result in the arbitrariness in the selection process, which will be violative of Article 14 of the Constitution of India as held by the Supreme Court in Ajay Hasia's case (1981 (1) SCC 722). The right of the Institution under Article 30 of the Constitution as a minority institution must be in conformity with Article 14 of the Constitution of India and according to the learned senior counsel, the prescription of marks for interview if it is above 15%, the same is not only violation of Article 14 of the Constitution, but is also against the dictum laid down by the Supreme Court in Ajay Hasia's case. 6(d). He would further submit that the reservation of 6 seats in favour of the children of the