IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06..07..2006 CORAM THE HON’BLE MR.A.P.SHAH, CHIEF JUSTICE and THE HON’BLE MR. JUSTICE D.MURUGESAN W.P.Nos.18558 to 18560, 17555 and 17556, 18961, 19074 to 19077, 19078, 20902 and 21176 of 2006 and Connected W.P.M.Ps. Minor S.Janani, rep. By his father and natural guardian Mr.R.Srinivasan, ... Petitioner in W.P.No.18558/2006 Minor S. Shibi rep. By his father and natural guardian R. Selladurai ... Petitioner in W.P.No.18559/2006 Minor Seran Rangarajan rep. By his father and natural Guardian R. Rangaraj ... Petitioner in W.P.No.18560/06 Minor T. Nikkin rep. by his father and natural guardian Dr.S. Thiliban ... Petitioner in W.P.No.17555/2006 Minor V. Siddarthan rep. By his father and natural guardian Dr.P. Vaithyalingam ... Petitioner in W.P.No.17556/2006 1. Minor S. Immonuel Arunkumar Dev rep. By his father and natural guardian Dr. D.B.D. Sathyakumar 2. Minor A.S. Bharathi Sezhian rep. By his father and natural guardian R.s. Anbu Selvam https://hcservices.ecourts.gov.in/hcservices/ 3. Minor S.Kerthivasan rep. By his father and natural guardian Sathya Narayanan ... Petitioners in W.P.No.18961/2006 Minor S. Raasi rep. By her father and natural guardian B. Sankar ... Petitioner in W.P.No.19074/2006 Minor R. Karthik Baalaji rep. By her father and natural guardian P. Rakkiyappan ... Petitioner in W.P.No.19075/2006 Minor Saranya Ravi rep. By her father and natural guardian Dr. B. Ravi ... Petitioner in W.P.No.19076/ 2006 Minor V.C. Sughapriya rep. By her father and natural guardian V.T. Chandran ... Petitioner in W.P.No.19077/2006 Minor J. Nelcy rep. By her father and natural guardian S. Joseph ... Petitioner in W.P.No.19078/2006 Mitra Prasad (Minor) rep. By his father Dr. V.G. Mohan Prasad ... Petitioner in W.P.No.20902/2006 Minor M. Natarajan rep. By his father and natural guardian Dr. T. Mohan ... Petitioner in W.P.No.21176/2006 - Vs - 1. State of Tamil Nadu, rep. by its Secretary to Government, Education Department, Fort St. George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai – 10. ..Respondents. 1 and 2 in all the Writ Petitions 3. Minor R. Vishnu rep. By his father and natural guardian G. Rajendran 4. R. Snekavalli D/o. V.R. Ramanathan (R3 and 4 impleaded as per order dated 6.7.2006 made in W.P.No.18558/06 (batch page No.8 para 5) in W.P.M.P.Nos.2 and 3/06 by CJ and DMJ... Respondents 3 & 4 in W.P.No.18558/06 PRAYER: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration declaring Clause 8(i), (ii) and (iv) of the Prospectus issued for MBBS/BDS admissions for the Academic Year 2006 – 2007 as illegal and violative of Article 14 of the Constitution of India by considering two different evaluation of qualifying examination for inter se merit and inconsistent with the regulations of Medical Council of India regulating the admission to MBBS Medical Course orders. (in W.P.Nos. 18558 to 18560, 17555 and 17556, 18961, 19074 to 19077, 19078 and 21176/2006) (ii) To issue a writ of Mandamus directing the respondents to make the selection for MBBS Course for the academic year 2006- 2007 on the basis of Marks obtained by the eligible candidates in the prescribed science subjects at the qualifying examinations reduced to the base of 200 marks and the marks obtained for the maximum of 100 marks in the Entrance Examination (Tamilnadu Public Common Entrance Examination 2006) in the physical and Biological Sciences conducted by the Anna University as prescribed under clause 8 of the prospectus issued by the 2nd Respondent. (in W.P.No.20902/2006) For Petitioners :: Mr.K.M.Vijayan, Senior Counsel For M/s.La Law Mr.Jayesh B.Dolia For Mr.V.Kalyanaraman in W.P.No.18961/06 Mr.N.S.Umapathy For M/s.Gladys Daniel in W.P.No.20902/06 https://hcservices.ecourts.gov.in/hcservices/ For Respondents1 and 2 :: Mr.R.Viduthalai, Advocate General in all Wps Assisted by Mr.M.Sekar, Spl.G.P.(Edn.) Mrs. Nalini Chidambaram and Mr.V.Ayyadurai for impleaded party. For Respondents 3 & 4 in W.P.No.18558/06 C O M M O N O R D E R (Order of the Court was made by the Hon’ble The Chief Justice) These petitions under Article 226 of the Constitution of India have been filed against the State of Tamil Nadu and the Secretary, Selection Committee, Directorate of Medical Education seeking a writ of declaration declaring Clause 8 (i), (ii) and (iv) of the Prospectus issued for MBBS/BDS admissions for the Academic Year 2006 – 2007 as illegal and violative of Article 14 of the Constitution of India as it considers evaluation of two different qualifying examinations for determining the inter se merit and is thus inconsistent with the Regulations of the Medical Council of India regulating the admission to MBBS Medical Course. The petitioners have filed these petitions in the interest of the entire student community as PIL, who have taken up the Entrance Examination for admission to Professional Courses for the Academic year 2006 – 2007. 2. The petitioners are students aspiring for admission to Under Graduate Medical Course. The petitioners had written their qualifying examination in 12th Standard under the State Board and had also appeared for the Common Entrance Examination conducted by the respondents through Anna University. The petitioners state that Clause 8 (i), (ii) and (iv) of the Prospectus, which provides for inclusion of the marks obtained in the qualifying examination to the extent of 200 marks along with the Entrance Examination marks to the extent of 100 marks, is totally against the principles of merit and is clearly discriminatory offending the provisions of Article 14 of the Constitution. It is pointed out that according to the rulings of the Supreme Court, admissions to Medical Colleges should be based strictly on merit and that there should be proper criteria for admissions. Reference in this connection is made to the Regulations framed by the Medical Council of India with the previous sanction of the Central Government by virtue of powers conferred on it under Section 33 of the Indian Medical Council Act, 1956. These Regulations are called “Regulations on Graduate Medical Education, 1997” published in Part III Section 4 of the Gazette of India, dated 17.05.1997. Regulation 4 prescribes, in considerable detail, the eligibility criteria for students with various types of education leading to 10 +2 or its equivalent. Regulation 5 is important and reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ “5. Selection of Students:- The selection of students to medical college shall be based solely on merit of the candidate and for determination of 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 examination should be held so as to achieve a uniform evaluation as there may be variation of standard at qualifying examination conducted by different agencies; (3) Where there is more than one 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 institutions of all-India character; (5) To be eligible for competitive entrance examination, the candidate must have passed any of the qualifying examinations as enumerated under the head-note ‘Eligibility Criteria’.” The proviso to the Regulation prescribes the percentage of marks which are to be obtained at the qualifying or/and competitive examinations by students including those belonging to SC/ST or OBC classification. The petitioners’ case is that sub-clause (ii) of Regulation 5 is attracted to the State of Tamil Nadu. 3. The petitioner state that Clause-8 of the Prospectus is totally contrary and inconsistent with the Regulations framed by the Medical Council of India, wherein Entrance Test is prescribed for a State like the State of Tamil Nadu having more than one Board conducting qualifying examination and particularly entrance test is contemplated only to achieve a uniform evaluation “as there may be variation of standards at qualifying examinations conducted by different agencies at different years”. According to the petitioners, the impugned clause is ex facie discriminatory, as different set of students, who had taken qualifying examination conducted by different agencies and even as the students between the same agency, i.e., the State Board, who have written their https://hcservices.ecourts.gov.in/hcservices/ qualifying examination on two different syllabi, were treated together by adding their qualifying examination marks upto 200 marks along with the entrance examination marks, which is wholly inconsistent with the norms of admissions laid down by the Medical Council of India. 4. A counter affidavit has been filed by the Additional Director of Medical Education/Secretary, Selection Committee on behalf of the respondents. It is stated that there is no prohibition under the Medical Council of India Act or the Graduate Medical Education Regulation, 1997 to prescribe better standard of selection process and all that is mentioned in Regulation 5(i) and (ii) is that a minimum of 50% marks in the science subjects at the qualifying examination and 40% in respect of SC/ST and Other backward Classes were prescribed as the minimum marks. Mere prescription of qualifying marks does not disentitle the candidates to score higher marks and increase the prospects of their selection for the MBBS Course. It is pointed out that in sub-clause (ii) of Regulation 5, the qualifying examination and the merit obtained in the competitive entrance examination is reckoned for the purpose of selection of candidates. It is further pointed out that the present system of combining the marks of qualifying examination as well as the Common Entrance Test has been in vogue for the past 22 years. It is stated that the Regulations framed by the MCI do not prescribe the method of selection to be resorted to and do not preclude the qualifying marks from being taken into consideration for ascertaining the comparative merits of candidates for admission to professional courses. It is stated that in none of the judgments rendered by the Supreme Court, the combination of qualifying marks and the entrance examination marks for ascertaining comparative merit of the candidate has been disapproved or deprecated. It is further stated that the policy of the Government is to see that there is always a level playing field between the rural and urban students and it has been observed over the period of years that the students hailing from peripheral towns and villages have scored better marks than the urban students. On the other hand, it is vice- versa when it comes to the question of Common Entrance Test. The reason for this is that the urban students are exposed to various training or rigorous short-term courses to undertake the Common Entrance Test and to score higher marks. On the other hand, there is no such facility available for students hailing from the peripheral towns and villages and the policy of combining the marks obtained in the qualifying examination as well as in the entrance test has been introduced with a view to remove such inequalities and this method has tested the time since 1984 and there is no reason to discontinue this test abruptly, especially, when in the past no complaint or objection was raised to the application of this method. 5. We have heard Mr.K.M.Vijayan, learned Senior Counsel appearing for the petitioners and Mr.R.Viduthalai, learned Advocate General appearing for the State of Tamil Nadu and Mrs.Nalini Chidambaram and Mr.Ayyadurai appearing for the interveners. Impleading Petitions W.P.M.P.Nos. 2 and 3 of 2006 are ordered. https://hcservices.ecourts.gov.in/hcservices/ 6. It appears that prior to 1984-85, admission to professional colleges was done on the basis of the marks in the qualifying examination (the class 12 Board Examination) plus the marks in the interview. From 1984-85 onwards, admission to medical colleges, dental colleges, engineering colleges, etc. in the State of Tamil Nadu have been done by holding Common Entrance Test and then adding the marks obtained by a candidate in the Common Entrance Test with the marks obtained in the qualifying examination (i.e. Plus Two Examination). In the year 2005, by G.O.Ms.No.184, Higher Education (J2) Department, dated 09.06.2005, the State Government abolished the Common Entrance Test, which was struck down by a Division Bench of this High Court in the judgment reported in 2005 (3) CTC 449 (Priyadarshini, N. Vs. The Secretary to Government, Education Department). In the year 2006, the State of Tamil Nadu passed a legislation by Tamil Nadu Act 2 of 2006, whereby Common Entrance Test was dispensed with for the State Board students alone, while retaining Common Entrance Test for other Board students as an eligibility test for admission to professional colleges and prescribing the marks obtained in the qualifying examination alone as the basis of admission for the State Board students. The said Act was challenged by one of the aspirants, which was struck down by a Division Bench of this High Court in the case of Minor Nishanth Ramesh Vs. The State of Tamil Nadu in W.P.No.3951 of 2006 decided on 27.02.2006. In view of the said decision of the Division Bench, the State of Tamil Nadu conducted the Common Entrance Test through Anna University and the results were also declared. 7. Mr.K.M.Vijayan, learned Senior Counsel appearing for the petitioner submitted that as per the MCI Regulations, Entrance Examination is mandatory for admission to MBBS and BDS Courses, which alone would satisfy the test of uniform evaluation. Any other criteria for determining the inter se merit between students other than the one single Common Entrance Test in determining the uniform evaluation between all the students will be ex facie discriminatory and violative of the equality clause guaranteed under Article 14 of the Constitution of India. 8. Mr.K.M.Vijayan, strongly relied on the decision of the Supreme Court in Ravindra Kumar Rai Vs. State of Maharashtra, AIR 1998 SC 1227 (vide paragraphs 6 and 7), in which it was observed as follows:- “We may at the outset point out that inasmuch as there are three Boards in Maharashtra State which conduct the qualifying examination and inasmuch as there are several universities, the State of Maharashtra would clearly fall under sub-clause (2) of Regulation 5 made by the Medical Council of India and not under sub-clause (3). The contention for the State that candidates from CBSE Board are small in number does not appeal to us. Inasmuch as there is no dispute that more than one Board conducts https://hcservices.ecourts.gov.in/hcservices/ the qualifying examination and the Universities are more than one in number, sub-clause (3) of Regulation 5, in our view, is not attracted. It is also not possible for the State to say that conducting a Common Entrance Examination will delay the admission process or that it will be extremely difficult to conduct the examination. In fact the statement in the counter affidavit to the effect that the State has been conducting a common examination for 1,80,000 at the 10+2 level in the 7 divisional boards would itself show that the State is capable of conducting a Common Entrance Examination for admission to medical colleges, even if the number of students is large. We may also say that in several States, Common Entrance Examination is being conducted even before 1997 when these Regulations made by the Medical Council came into force. In fact in some States, entrance examination is conducted jointly for Engineering and Medical students also. We fail to see why the State of Maharashtra should say that it will be an arduous task. In a recent judgment of this Court in Shri Chander Chinar Bada Akhara Udasin Society Vs. State of J & K, 1996 (5) SCC 732:1996 AIR SCW 3778, in the context of admission to Medical Colleges, and the need for a Common Entrance Examination, this Court observed (p.738) (of SCC); (at p.3782 of AIR) as follows: ‘It need not be pointed out that the percentage of marks secured by different applicant at different type of examinations at the higher secondary stage cannot be treated as uniform. Some of such examinations are conducted at the State level, others at the National level including the Indian School Certificate Examination. The percentage secured at different examinations are bound to vary according to the standard applied by such examining bodies, which is well known. As such a common entrance examination has to be held’. (emphases supplied) It has been, therefore, held a Common Entrance Examination has to be held. 9. The learned Senior Counsel has also relied on the Constitution Bench decision of the Supreme Court in Dr.Preethi Srivastava Vs. State of M.P., 1999 (7) SCC 120 vide paragraph – 28, in which it was observed thus:- “A common entrance examination, therefore, provides a uniform criterion for judging the merit of all candidates who come from different universities. Obviously as soon as one concedes that there can be different standards of teaching and evaluation in different universities, one cannot rule out the possibility that the candidates who have passed the MBBS from a university which is liberal in evaluating its students, would not, necessarily, have passed, had they appeared in an examination where a more strict evaluation is made. Similarly, candidates who have https://hcservices.ecourts.gov.in/hcservices/ obtained very high marks in the MBBS Examination where evaluation is liberal, would have got lesser marks had they appeared for the examination of a university where stricter standards were applied. Therefore, the purpose of such a common entrance examination is not merely to grade candidates for selection. The purpose is also to evaluate all candidates by a common yardstick. One must, therefore, also take into account the possibility that some of the candidates who may have passed the MBBS Examination from more ‘generous’ universities, may not qualify at the entrance examination where a better and uniform standard for judging all the candidates from different universities is applied. In the interest of selecting suitable candidates for specialized education, it is necessary that the common entrance examination is of a certain standard and qualifying marks are prescribed for passing that examination. This alone will balance the competing equities of having competent students for specialized education and the need to provide for some room for the backward even at the stage of specialized postgraduate education which is one step below the superspecialities.” (emphasis supplied) 10. The learned counsel for the petitioners also relied on the decision of the Supreme Court in Dinesh Kumar Vs. Motilal Nehru Medical College, Allahabad, AIR 1985 SC 1059, in which it was observed:- “The State Governments have also been equally guilty of indifference and inaction in not taking any steps for the purpose of holding an entrance examination which would test the relative merits of the students seeking admission to the minimum 30% non-reserved seats in the MBBS Course in the medical colleges. Some of the State Governments and Universities, we are informed, are proposing to fill up the minimum 30% non-reserved seats for the MBBS Course on the basis of the mark obtained by the students at the qualifying examinations held by different States and/or Universities, totally ignoring the fact that the standard of judging at these different qualifying examinations cannot, by its very nature be uniform. Some Universities may be very liberal in their marking while some other may be strict. There would be no comparable standards on the basis of which the relative merits of the students can be judged. It would be wholly unjust to grant admissions to the students by assessing their relative merits with reference to the marks obtained by them, not at the same qualifying examination where standard of judging would be reasonably uniform but at different qualifying examinations held by different State Governments or Universities where the standard of judging would necessarily vary and not be the same. That would indeed be blatantly violative of the concept of equality enshrined in Article 14 of the Constitution.” (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ 11. Mr.K.M.Vijayan, learned Senior Counsel, also drew our attention to a judgment of a Division Bench of this Court in Association of Private Schools Affiliated to CBSE etc. Vs. The State of Tamil Nadu etc., 1992 (2) LW 155. In that case, the question of validity of the G.O.No.555 passed by the Tamil Nadu Government, dated 15.06.1992 regarding admission of students for professional courses for the academic year 1992-93, and fixing up number of seats among students of State Higher Secondary (SHS) Education and Central Board of Secondary (C.B.S.) Education in the ratio of 98% and 2%. The reason for the G.O. according to the State Government was that they considered the press reports and a number of representations made by the parents to the effect that the valuation of Central Board of Secondary Education (CBSE) Plus-2 answer papers has been over-liberal in that year which would place the CBSE students at an unfair advantageous position and would be detrimental to the large number of students who had passed State Higher Secondary Course (HSC) Plus-2 Examination under the State Board of Higher Secondary Examination. The G.O. further stated that the Government felt convinced that an attempt had been made to over-liberalise the valuation in CBSE Plus-2 Examination, particularly in science subjects, so as to give an unfair advantage to the students. The Division Bench found that there was absence of nexus to the object to be achieved in the allotment of seats rounded to 2% for the CBSE/ISC students and 98% for HSC students. In paragraph 56 of the said judgment, the Division Bench summed up the legal position as follows:- (1) It will not be proper to accept the subject marks allotted to the CBSE students as a basis to reckon their merit assessment with the HSC students unless all doubts as to the propriety of allotment of extra marks in the name of standardization/moderation are removed; (2) Since it will not be proper to take into account the subject marks of the CBSE students for the purpose of reckoning their merit with the HSC students as a whole because, while there may be some basis for reckoning inter se merit of HSC students with reference to the marks allotted to them in Plus-2 examination, there may have no one from the other source (CBSE) for any equation of equality; (3) While it may be possible to say that Government had no justification to intervene and introduce by an order a system of allotment of seats to the CBSE/ISE on the one hand and HSC students on the other, there is no reasonable nexus with the object to be achieved in the reservation of 2% for the CBSE/ISE students and 98% for the HSC students. (4) When subject marks are no longer safe for assessing the merit of the candidates the entrance https://hcservices.ecourts.gov.in/hcservices/ examination result is the safest and the only basis available for assessing inter se merit of the candidates coming either through CBSE/ISC or through HSC. 12. Mr.Vijayan also drew our attention to the following observations of the Division Bench in Minor Nishanth Case (supra) in paragraph – 15:- “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-à-vis 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”. 13. In view of the clear pronouncements made repeatedly by the Supreme Court (as quoted above), we are in agreement with the submission of the learned counsel that a Common Entrance Test is mandatory in the State of Tamil Nadu since there are several examining Boards in the State. The question, however, which falls for our consideration, is, whether the consideration of the marks obtained in the qualifying Board Examinations along with the marks obtained in the Entrance Examination would be violative of Article 14 of the Constitution and the further question is whether the system of evaluation which is in vogue for more than 22