IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.7.2006 CORAM: THE HONOURABLE MR.JUSTICE P.SATHASIVAM and THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.Nos.15755 and 15756 of 2006 And WPMP.Nos.15531, 15531 & 15534 of 2006 1. Christo N. Prince 2. R.B. Gayathiri 3. V. Ilayaraja 4. T. Muthumani 5. J. Nagendran 6. P. Sivashankar 7. B. Anand 8. G. Padmapriya 9. S. Sharmila 10.Ravi Kumar Goyal 11.Shrikanth 12.Ibrahim 13.M. Madhulaxmi .. Petitioners in both the W.Ps., vs. 1. The State of Tamil Nadu rep. By its Secretary to Government, Ministry of Health & Family Welfare Department, Fort St. George Chennai 600 009. 2. The Universities Grants Commission, through its Chairman Bahadursha Marg New Delhi. 3. Union of India rep. By Its Secretary to Government Ministry of Human Resource And Development New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 4. The Selection Committee Directorate of Medical Education, Kilpauk, Chennai 600 010 Rep. By its Chairman. 5. The Dental Council of India rep. By its Secretary, Kotla Road, Temple Lane New Delhi 110 002. 6. Raagas Dental College Uthandi Chennai 600 096 Rep. By its Registrar. 7. Raajas Dental College Vadakkankulam Tirunelveli 627 001 Tamil Nadu rep. By its Registrar. 8. Sri Vinayaka Mission Research Foundation Deemed University Ariyanoor, Salem 636 001. Tamil Nadu rep. By its Registrar. 9. Meenakshi Ammal Higher Education And Research Institute (Deemed University) Maduravoyal 602 102 Rep. By its Registrar. 10.Saveetha Institute of Medical And Technical Sciences (Deemed University) No.162 Poonamallee High Road Chennai 600 077, Tamil Nadu Rep. By its Registrar. 11.Sri Balaji Deemed University Chrompet, Chennai 600 044 Tamil Nadu rep. By its Registrar. https://hcservices.ecourts.gov.in/hcservices/ 12.Sri Ramachandra Medical College Deemed University Porur, Chennai 600 116 Tamil Nadu rep. By its Registrar. 13.The SRM Dental College Deemed University Ramavaram, Chennai 600 089 Tamil Nadu rep. By its Registrar. 14.Justice Subramani Committee C/0. Government of Tamil Nadu Education Department Fort St. George Chennai 600 009. .. Respondents in Both the W.Ps., Petitions filed under Article 226 of the Constitution of India praying for issuance of a writ of declaration and writ of mandamus as stated therein. For petitioners : Mrs. Nalini Chidambaram Senior Counsel for M/s. Gladys Daniel. For respondents : Mr. R. Viduthalai Advocate General Assisted by Mr. M. Sekar Spl. Govt., Pleader (Education) For R.1 and R.4. Mr. S. Udayakumar S.C.G.S.C. for R.3. Mr. P. Chandrasekaran for R.5. Mr. K. Chandru, Senior Counsel for Mr. Kandavadivel Doraisami For R.6 and R.7. Mr.M.Satish Parasaran for R.8 & 11 Mr. A. Thiyagarajan for R.9. Mr. S.T.S. Murthi for R.10. Mr. R. Muthukumarasamy Senior Counsel for Mr. A. Jenasenan for R.12. https://hcservices.ecourts.gov.in/hcservices/ Mr. R. Natarajan for R.13. No appearance for R.2. COMMON ORDER (Order of the Court was made by P. SATHASIVAM,J.) The petitioners, 13 in number, are BDS graduates have filed the writ petition, W.P.No.15755 of 2006 with the following prayer: “ to issue a Writ of Declaration or any other writ, order or direction declaring that the admission for the 207 MDS seats in respondents 6 to 13 for the academic year 2006-2007 based on the entrance tests conducted by the respondents 6 to 13, which have been wholly unfair, non-transparent and exploitative, as contrary to the directions issued by the Supreme Court in Bharati Vidyapeet Case reported in 2004(11) SCC 755 and PA.Inamdar’s case reported in 2005(6) SCC 537 and illegal and consequently direct the 14th respondent Justice Subramani Committee to conduct the Common Entrance Test for the 53 MDS seats in respondents 6 and 7 and the 2nd respondent (UGC) to conduct the Common Entrance Test for the 152 MDS seats in respondents 8 to 13 for the year 2006-2007 and admit students to the 207 MDS seats as per the merit list prepared on the basis of the said entrance tests and the BDS exam marks”. 2. The very same petitioners have also filed W.P.No.15756 of 2006 praying “to issue a Writ of mandamus or any other writ, order or direction, directing the respondents 6 to 13 based on the merit list drawn by the 4th respondent on the basis of the entrance tests conducted by the 4th respondent and the BDS exam marks for the academic year 2006-2007.” 3. The case of the petitioners as briefly stated is as follows:- (a) According to the petitioners, they have completed BDS (5 year) course either in Government Dental College or in the private Dental colleges. The Parliament enacted the Dentist Act, 1948. The Dental Council of India, the 5th respondent, with the previous approval of Central Government, made the regulation called, “The Establishment of New Dental College Regulations 1993”. Under the said regulation it was necessary to get the essentiality certificate from the local Government for starting the dental colleges. Several Private Trusts like the respondents 6 to 13 who intended to start private Dental Colleges applied for the essentiality Certificates and the State Government issued the certificates. (b) The Government of Tamil Nadu issued G.O.Ms.469, Health & Family Welfare (MCA) Department. By the said G.O., the Government ordered that the available seats in MDS courses in Self Financing Colleges be shared between the Government and the Self Financing Dental Colleges in the ratio of 50:50. The allotment of the 50% seats to MDS Courses in Self https://hcservices.ecourts.gov.in/hcservices/ Financing Dental Colleges shall be made by the Selection Committee from the merit list, after ascertaining the willingness of the candidates to undergo the course in the Self-Financing Dental Colleges under payment seat category. Even though while issuing the essentiality certificates to respondents 6 to 13 the State Government did not mention that it was subject to the condition that 50% of the seats in dental colleges should be surrendered to the State Government for being filled under the Single Window system it has to be construed that the essentiality certificate was issued only on contemplation of directing the private dental colleges to surrender 50% of the seats to the State Government. ( c ) As per the said G.O., all the self financing colleges surrendered 50% of the available seats in MDS to the State Government and the said seats were filled up as per the merit list drawn on the basis of the marks obtained in the qualifying BDS exams and the entrance test conducted by the Director of Medical examinations every year. Thus, at least 50% of the available MDS seats in self financing colleges were filled up on merit basis. As far as the balance 50% seats are concerned, they were filled up only based on the paying capacity of the students. In other words, only students who were willing to pay capitation fee would get admitted in the 50% of the MDS seats in the self financing colleges, merit not being the consideration. (d) It is further stated that the Central Government can declare any institution for higher education as Deemed University for the purposes of the U.G.C. Act under section 3 of the said Act on the basis of the recommendations of the University Grant Commission(UGC). As per the guidelines, only centres of excellence can be declared as Deemed Universities. In Tamil Nadu, out of eight self financing dental colleges, six obtained the status of Deemed University. The Tamil Nadu Government Dental College in Chennai has only 20 MDS seats out of which seven seats are to be filled up by the All India Quota and the remaining 13 seats are to be filled up by the Common Entrance Test (CET) conducted by the State Government. But, the respondents 6 to 13 which are self financing colleges or Deemed Universities have about 207 MDS seats and hence, the maximum number of MDS seats were taken out of the purview of CET conducted by the State Government. Thus, 207 MDS seats in the five Deemed Universities and two self-financing Colleges were taken out of the purview of the Common Entrance Tests conducted by the State Government. In the Government Dental College, out of 20 seats available for MDS course under various specialties, only 13 seats are made available to candidates in Tamil Nadu. The Common Entrance Test examination for the MDS course was conducted by the Directorate of Medical Education on 25.02.2006. About 600 students wrote the MDS entrance test for 13 seats. It is further stated that though the petitioners obtained good marks in BDS exam and high ranks in the merit list, they were not able to get any of the 13 seats in the Tamil Nadu Government Dental Colleges. (e) Though the respondents, viz., self-financing colleges and Deemed Universities called for applications for filing up the MDS seats, viz., 207 seats, it was not properly published and the cost of application form was Rs.1,000/-. Two self-financing colleges, viz., respondents 6 and 7, issued only 60 application forms to select students for 53 MDS seats while there were about 600 students aspiring for MDS seats. Thus, the entire https://hcservices.ecourts.gov.in/hcservices/ selection process was a farce. The petitioners were denied even an opportunity to compete for the 53 MDS seats in the respondents 6 and 7 colleges. The enquiry made by the petitioners shows that unless the students pay high capitation fees, they cannot get seats in the Deemed Universities. The respondents 6 and 7, self-financing colleges held a common test among themselves which was far from transparency. The five Deemed Universities also held their individual examinations which were also not transparent. The admission procedure adopted by the respondent colleges was totally contrary to the decision of the Supreme Court in the case of P.A.Inamdar vs. State of Maharashtra (2005 (6) SCC 537). Thus, the entire selection process for 207 MDS seats for the academic year 2006- 2007 by the respondents 6 to 13 is vitiated as contrary to the decisions of the Supreme Court in the case of Bharati Vidyapeet vs. State of Maharashtra (2004 (11) SCC 755) and Inamdar’s (cited supra) and it is illegal and liable to be set aside. 4. The respondents 9, 10 and 12 alone filed a counter affidavit disputing the various averments made by the petitioners. However the other respondents have filed typed set of papers furnishing the guidelines and rules framed both for conducting examinations and selection process. The respondents 6 and 7 placed before us the details of the decision of the 14th respondent, Justice Subramani Committee. 5. In the light of the above materials, we heard learned counsel appearing for the petitioners and the respondents. 6. The main grievance of the petitioners, as projected by Mrs.Nalini Chidambaram, learned senior counsel is that the Common Entrance Test conducted by the respondents 6 and 7 was not transparent and it should have been conducted by Justice Subramani Committee as directed by the Supreme Court in Inamdar case (cited supra) and the entrance examinations conducted by the respondent 8 to 13 were wholly unregulated, unfair, not transparent and not conducted as per the decision of the Supreme Court in Bharati Vidyapeeth case (cited supra). 7. As said earlier, the petitioners are BDS degree holders from the Government Dental Colleges and private Dental Colleges. They aspired for MDS course since as per G.O.Ms.469, Health & Family Welfare (MCA) Department, Self Financing colleges have to surrender 50% of seats available in MDS course to the State Government and the remaining 50% seats are to be filled up on merits basis by them. It is also their grievance that balance 50% seats were filled up only on the basis of capacity of students merit not being the consideration and they are not in a position to pay capitation fee as claimed by the Self Financing Colleges. 8. Mr. K.Chandru, learned senior counsel appearing for the respondents 6 and 7 has brought to our notice that the respondents 6 and 7 are self- financing colleges and they followed the directions of the Permanent Committee for Common Entrance Test for Private Educational Institutions in Tamil Nadu headed by Justice S.S.Subramani. The typed set of papers filed on behalf of the respondents 6 and 7 show that Justice Subramani https://hcservices.ecourts.gov.in/hcservices/ Committee, scrutinised the application filed by Tamil Nadu Private Dental Colleges Association represented by its Joint Secretary seeking permission to conduct common entrance test for admission of students to postgraduate courses, namely, MDS course for the academic year 2006-2007, passed an order dated 22.3.2006 holding that at present Ragas Dental College (6th respondent herein) and Rajas Dental College (7th respondent herein) are the only the members of the Association wanted to conduct the common entrance test for MDS Course. For the year 2005-2006 permission was granted by the said Committee to the Association which complied with various directions strictly. The test was conducted successfully and admission was also made in terms thereof and there was no complaint from any corner. On going through the application and considering the fact that only two colleges represented by same counsel, after finding that there is no necessity to invite any objection from any other college or Association, the Committee in its meeting held on 22.3.2006 granted permission to the Association on fulfillment of certain conditions. The conditions were imposed only to see that the examinations and tests are conducted in a fair and transparent manner. Thirteen conditions have been imposed in the order dated 22.3.2006. A perusal of the conditions show that setting up of question papers and evaluation should be given to experts approved by the Committee which reserves its right to nominate its own experts. The question papers should be printed in any security press approved by the Committee. The answer papers when collected should be separately packed and sealed by the representative of the Association in the presence of person nominated by the Committee. The opening of the question paper package must also be done in the presence of the representatives of the Association and the Committee. There will be separate squad appointed by the Committee for each coordinating centre. The question papers should be as per standards prescribed by competent authorities for similar examinations and lowering of standards is totally prohibited and answers should be evaluated and scanned only through machine and manual work is totally prohibited. The admission should be made only on the basis of merit list and on the basis of single window system under strict supervision of the Committee. Admission should be made on the basis of merit list and that too, after getting orders of the Committee and following the single window system for admission and the policy of reservation should be followed wherever applicable. After admission, the list of students admitted, their rank number, fees collected and all other particulars and details should also be furnished before the Committee. All admissions made will be supervised by the Committee. The question papers and answer sheets should be preserved in such places as directed by the Committee for a period of six months from the date of publication of results. Due publicity should be given before the application forms are distributed to the candidates and the same should be published in two dailies having wide circulation all over India and it should also be published at least five days before the date of issue of application forms. The above order dated 22.3.2006 was signed by the Chairman, two members and the Member Secretary. The said order is available at pages 1 to 5 of the typed-set of papers. After going through the time schedule submitted by the Association, date of publication in dailies inviting application forms, date of examination, date of publication of results, https://hcservices.ecourts.gov.in/hcservices/ etc., the Committee approved the names of experts for setting up the question papers. The Association also submitted its entire Agenda and after accepting the work done by the Association, by order dated 7.4.2006, the Committee permitted the respondents 6 and 7 to proceed with the admission through central counseling, that is, following single window system in the presence of representatives of the Committee. The said order is available at pages 6 to 9 of the typed-set of papers. After completion of the selection process, the Co-ordinator and Controller of Examinations, Tamil Nadu Private Dental Colleges Association, Chennai submitted a list of candidates selected for MDS course for the academic year 2006-2007 to the 14th respondent Committee on 8.5.2006. The Association also filed separate petitions seeking allotment and approval order of certain candidates. All the petitions filed by the Association and the order of the Committee are available in the typed-set of papers, vide: pages 34 to 45. The respondents 6 and 7 have furnished the entire proceedings of the Committee starting from the application of the Association and various conditions imposed by the Committee, to the ultimate approval by the Committee of the admission of selected candidates which are available in the form of typed-set of papers. It is not in dispute that in P.A. Inamdar’s case the Hon’ble Supreme Court approved the constitution of two Committees, one for monitoring admission procedure and another one for fee structure in the judgment of Islamic Academy of Education vs. State of Karnataka (2003 (6) SCC 697). In para 151 of P.A. Inamdar’s case, it is held, “151. ….. The challenge to setting up of the two Committees in accordance with the decision in Islamic Academy (cited supra) therefore, fails. …. “ Mr. K. Chandru, learned senior counsel has also pressed into service para 150 of P.A. Inamdar’s case, which reads as under. “150. We make it clear that in case of any individual institution, if any of the Committees is found to have exceeded its powers by unduly interfering in the administrative and financial matters of the unaided private professional institutions, the decision of the Committee being quasi-judicial in nature, would always be subject to judicial review. “ In view of the same, as rightly pointed out, any aggrieved person is free to challenge the decision of the Committee in the Court of law. In the light of the above legal position and in view of the details furnished by the respondents 6 and 7 amply show the transparency and the admissions were made in terms of judgment of the Supreme Court. 9. Now, let us consider the stand taken by the Deemed Universities. Here again, it is the grievance of the petitioners that as per the decision of the Supreme Court in Bharati Vidyapeeth case (2004) 11 SCC 755, the State has no power over the admission procedure of the Deemed Universities and the admission to the Deemed Universities has to be made under the control of UGC. Learned senior counsel relied on para 18 in Bharati Vidyapeeth case. https://hcservices.ecourts.gov.in/hcservices/ 10. Mr.R.Muthukumarasamy, learned senior counsel appearing for the 12th respondent, by taking us through various averments made in the counter affidavit filed by the Registrar, Sri Ramachandra Medical College and Research Institute (Deemed University), Porur, Chennai, submitted that the University being a Deemed University is empowered to conduct Common Entrance Test or admission of students as per Memorandum of Association and Rules approved by the UGC and the Central Government and there is no merit in the claim made by the learned senior counsel for the petitioners. 11. It is seen from the materials placed that the 12th respondent was started in the year 1985 as a self-financing institution and it was affiliated to the University of Madras. The Medical Counsel of India inspected the college and approved annual intake of 100 seats in MBBS Degree course. After establishment of Dr.MGR Medical University in the year 1989, the affiliation was transferred to the professional university and on inspection by the University Grants Commission and on its recommendations, the Central Government declared the 12th respondent as a Deemed University under section 3 of the UGC Act on 29.9.1994. Mr.Muthukumarasamy, learned senior counsel pointed out that according to UGC Rules and guidelines, the Deemed University is authorized to conduct its own entrance test on All India basis and admit students on merit. He also brought to our notice that at the time of declaration of the institution as a Deemed University, Memorandum of Association Rules were approved by the UGC and the Central Government wherein powers and functions of the Deemed University, constitution of various authorities such as, Board of Management, Academic Council, Finance Committee, Planning and Monitoring Board, etc. were laid down. Rule 5(A) deals with the powers and functions of the Board of Management and sub-clause (xxxiv) of the said Rule specifies as follows:- “to conduct examinations or tests for admission to the course taught in the institute and declare results of such examinations or tests; to conduct examinations for degree/diploma courses conducted in the institute and to declare the results of such examinations; and to confer, grant or award degrees, diploma, certificates and other academic titles or distinctions”. 12. It is pointed out that in regard to admission to postgraduate courses, including MDS course, for the academic year 2006-2007, the 12th respondent Deemed University issued a detailed advertisement on 27.11.2005 in the English dailies, The Hindu and Indian Express (All India editions) and in the Tamil daily, Dinamani and Telugu Daily, Eenadu inviting applications from the eligible candidates. In the advertisement, it was informed that prospectus and application form for the entrance examinations may be obtained either by downloading from the deemed University’s website (www.srmc.edu) or from the Registrar on requisition with a demand draft for Rs.1,100/- or in person by paying Rs.1000/- at the University office and that application forms would be issued from 28.11.2005, the last date for receipt of filled in application was 28.12.2005 and the date of entrance examination for MDS course was 29.1.2006. https://hcservices.ecourts.gov.in/hcservices/ 13. It is stated that the Deemed University has to strictly adhere to the time schedule fixed by the Supreme Court in Medical Council of India vs. Madhu Singh (2002 (7) SCC 258) and Mirdul Dhar vs. Union of India (2005 (2) SCC 65) in regard to conduct of entrance examination, declaration of result, counseling, last date for joining the course, commencement of academic session etc. It is brought to our notice that the result of entrance examination conducted on 29.1.2006 was published in the website of the Deemed University and also on the notice board on 3.3.2006 and counseling was held on 17.3.2006 and classes for MDS Course commenced on 10.4.2006. Learned senior counsel for the 12th respondent highlighted that as per the provisions of the UGC Act, the Universities and Deemed Universities are equally treated for all purposes of the Act and they are functioning under the direct control of the UGC. Each university/Deemed University is administered in terms of the respective University Acts and MOA and Rules of the Deemed Universities. He also submitted that the Deemed Universities have been making admission on merit on the basis of All India level entrance tests conducted by them without any complaint whatsoever. As rightly pointed out by the learned senior counsel, the power to conduct entrance test by the Deemed universities is traceable to the relevant Acts and Rules. The notification dated 29.9.1994 shows that by virtue of the powers conferred by section 3 of the University Grants Commission Act, the Central Government, on the advice of the University Grants Commission, declared the 12th respondent as a Deemed University for the purposes of the said Act. 14. Mr.Muthukumarasamy, learned senior counsel has placed before us the MOA and Rules and guidelines duly approved and notified by the Government of India. Based on the approved MOA and Rules, wide publication was effected in English dailies, The Hindu and New Indian Express (All India Editions), in Tamil daily, Dinamani and in Telugu daily, Eenadu inviting applications from candidates for admission to postgraduate courses for the academic year 2006-2007. Following the directions of the Supreme Court in Madhu Singh case (cited supra) the 12th respondent adhered to strict time schedule in conducting entrance examination, declaration of result, counseling, etc. It is also brought to our notice that in the 12th respondent Deemed University the result of entrance examination was published in the website as well as on the notice board on 3.3.2006 and counseling was held on 17.3.2006 and classes