IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17/10/2003 Coram The Honourable Mr. Justice V.S. SIRPURKAR and The Honourable Mr. Justice M. THANIKACHALAM W.A. No. 2596 of 2003 and W.A.Nos. 2934 and 2738, of 2003 and WAMPs 4644, 4013 and 4273 of 2003 AND W.P. Nos.25066, 24977, 25397, 25398, 25425 25426, 25723, 24267, 25816, 24505 and 24702 of 2003 and WPMPs 30832, 30833. 30720, 31676, 31200, 31230, 30136, 31581, 30384 of 2003 W.A. No.2596 OF 2003: Minor S.V. Bratheep rep. by his father and natural guardian S. Subash Ganapathipuram Kanyakumari District ..... Appellant -Vs- 1. The State of Tamilnadu rep. by its Secretary to Government Higher Secondary Education Chennai 600 009 2. The Secretary Tamil Nadu Engineering Admissions 2003 Anna University Chennai 600 025 3. The Director of Technical Education Guindy, Chennai 600 025 4. The Anna University rep. by its Registrar Chennai 600 025 5. The All India Council for Technical Education, rep. by its Chairman, Indira Gandhi Sports Complex New Delhi 110 002 ..... Respondents Appeal under Cl.15 of the Letters Patent against the order dated 11-08-2003 made in W.P. No.17532 of 2003 !For Appellant/Petitioner :: M/s. R. Krishnamurthy and (Managements of Engineering K. Doraisamy, Senior Counsel Insitutions and students) for M/s. V. Ayyadurai, M/s. V. Ayyadurai, Motilal and Muthumani Doraisamy M/s. R. Sureshkumar, R. Natarajan, S. Thankasivam and S. Prabhakar ^For Respondents :: Mr. V.R. Rajasekar Spl. Government Pleader (for R1 to R3) Mr. G. Masilamani, Senior Counsel for G.A. Mani Assct. for R4 Mr. Vijay Narayanan for R5 :COMMON JUDGMENT (Delivered by V.S.SIRPURKAR, J.) The writ appeals mentioned above will be disposed of by this common order since the subject was common. Few writ petitions also came to be filed by various Engineering Colleges in the State regarding the subject and they came to be tagged to the present writ appeals. 2. The common subject involved is the validity of Government Order, G.O. Ms. No.25, dated 13-2-2003, which emanates from G.O. Ms. No.22 2 Higher Education (J1) Department, dated 29-6-2000. These two Government Orders, issued by the Government of Tamil Nadu, pertained to the minimum qualifying marks required by the students of the Open Category (OCs), Backward Communities (BC), Most Backward Communities ( MBCs) and De-notified Communities (DNCs). 3. In G.O. Ms. No.222, on the request of the Tamil Nadu Selffinancing Engineering Colleges' Association, it was provided that for the admission in an Engineering college, a student must have secured the marks as per the table given below: ------------------------------------------------- BASIC QUALIFICATION Community Higher Secondary (Academic/Higher Secondary(Vocational)/Diploma Holders O.C. 60% average in the related subjects B.C. 55% average in the related subjects MBC/DNC 50% average in the related subjects SC/ST Mere pass It will be seen from the language of the said Government Order that the said request was made by the Engineering Colleges' Association as there were vacancies remaining under 'Payment Quota' and the number was increasing year after year, putting the Managements of the Engineering Colleges under great financial difficulties. The percentages of qualifying marks for students belonging to different communities arrived at by the Government in G.O. No.222 were lowered down and that is an admitted position. 4. It seems that after that Government Order came the celebrated judgment of the Supreme Court T.M.A. PAI FOUNDATION v. STATE OF KARNATAKA (1995 (5) SCC 220). Relying on the contents of paragraphs 66 and 70 and more particularly on the answer given to the question No.4 framed therein, the State Government reiterated this aforementioned Government Order in G.O. No.25. It was noted by the State Government that according to the law declared by the Supreme Court, the State had to ensure the educational standards and maintenance of excellence thereof and though the Managements of the unaided professional institutions, in the meeting held by the Government on 3-2-2003, had made a request to prescribe a "mere pass" at +2 level (Higher Secondary Examinations) as the minimum eligibility for admission to the professional institutions from the year 2003-04 as had been prescribed by the All India Council for Technical Education ('AICTE' in short), the Government did not see any reason to change the existing norms as provided by G.O. No.222. With the result, when the Government found from the lists supplied to it by the unaided professional institutions that some of the students, as per their categories, secured less percentage of marks than the prescribed qualifying marks. The Government had threatened to cancel the admissions of those students and the Anna University, to which all the Engineering colleges in the State are affiliated had also threatened to withdraw the affiliation granted by it earlier. It is with this idea that the present writ petitions came to be filed before the learned single Judge. 5. The first such writ petitions were W.P. Nos.17532 and 21451 of 2003. In these writ petitions, the aforementioned two Government Orders came to be assailed on the ground that the said Government Orders and more particularly the second one were unconstitutional as being contrary to the norms fixed by the AICTE, which was a body created under the All India Council for Technical Education Act, 1987 (in short 'AICTE Act'). The norms by the AICTE were brought into existence in exercise of the powers conferred by clauses (j) and (o) of Sec.10 read with Sec.23 of the AICTE Act. The said norms were also reflected in an advertisement floated by the AICTE dated 2-11-2002, which was very heavily relied upon by the learned single Judge. 6. It was contended before the learned single Judge that though the petitioners or, as the case may be, the students of the Engineering colleges, satisfied the norms, they were being denied the seats on untenable grounds. It was also pointed out that this year, there was a unique situation like the earlier years also that a large number of seats remained vacant, as they were not claimed even by the students who were offered those seats. It was, therefore, urged that when there were more number of seats then the claimants, the Government had no power to fix the norms contrary to or different from the norms fixed by AICTE. 7. It must be noted before we proceed with the matters for further considerations that a number of writ petitions have been filed, either by the Managements of the Engineering colleges or by the students, reiterating that the norms adopted by the State Government could not be contradictory to and different from the norms fixed by the AICTE. A relief, therefore, was sought from this Court for a declaration that the norms insisted upon by the State Government were invalid more particularly in view of the fact that there were a large number of lapsed seats even under the Single Window System (SWS) by which the Government seats were filled in. It will be, therefore, proper to see the prevalent system of admissions to the professional courses more particularly Engineering stream in the State of Tamil Nadu for the year 2003. 8. From the application form for Tamilnadu Engineering Admissions, 2003, which also included an Information Booklet, it is apparent that the application form was intended for the admissions to the Anna University, Government, Government Aided and Self-financing Engineering Colleges under the unified Single Window Admission System. Clause 2 .7 provides that all candidates seeking admissions to the Engineering colleges should have appeared for TNPCEE'03 conducted by the Anna University in the subjects Mathematics and Physical Sciences or in the related subjects. It is specified therein that the applications without the entry of TNPCEE'03 registration number would be rejected. It is an admitted position that this common entrance test took place in Tamil Nadu even before the declaration of the results of the qualifying examination, i.e. HSC Examination of 10+2 curriculum. Clause 2.4 suggests the minimum eligible marks, which we have quoted in the earlier part of the judgment. It is also an admitted position that the applications of the students, who had secured the minimum eligible marks in the Higher Secondary Examinations, the results of which declared later on after the declaration of the results of the TNPCEE'03 alone were accepted. Thus, those students who had appeared for the TNPCEE'03 but had failed to secure the minimum qualifying marks in the Higher Secondary Examinations were not considered and were not even allowed to apply for the Engineering seats. It is also an admitted position that the candidates, out of 600 marks in the three subjects, viz. Mathematics, Physics and Chemistry, had to secure a minimum marks of 60% on an average, i.e. 360 marks in all in the said three subjects for the purpose of admissions into the Engineering colleges. The total marks secured by a candidate out of 600 marks would be then converted into the score as if it was out of 200 marks and that score would be added to the marks secured by the candidate in TNPCEE'03. Thus the standardized score arrived at would fix the place of the concerned student in the final merit list. 9. It has come on record by way of affidavits that in all 51660 applications were received for the admissions through Single Window System. Out of them, 50788 were found to be eligible. The total number of seats offered was 24801 and 11072 students attended the interview but, refused to take the seats offered. In all, 48434 seats were filled up including 24801 seats, which were filled in under Single Window System. The rest were, of course, filled in by the Managements from their allotted quota. It is thus apparent that in all 28850 seats were remained vacant after filling in of all the students firstly through Single Window System and secondly by the Managements from their quota. What is being pressed into service before us is that if the norms fixed by the State Government are brought on par with the norms fixed by the AICTE then, the number of students who were otherwise refused to take part in the selection procedure would be able to get an opportunity and there will be no question of any Engineering institution having any apprehension of disaffiliation because of some admissions made by them of the students who have been otherwise not having the eligibility norms set up by the State Government. 10. The learned single Judge took the view, relying on the various observations made in T.M. Pai case, cited supra, that the State Government was within its rights to fix the norms that it did and that it had done so to maintain the educational standards and ensure academic excellence. While concluding, however, the learned Judge recommended: "It is brought to the notice of this Court that 1/4th of seats are unfilled and some of the unaided Engineering colleges are facing the threat of closure and if the minimum marks prescribed by AICTE is followed, the remaining seats could be utilised and the institution be saved from closure. The Government is at liberty to take a decision considering the total numbers unfilled seats and demand for the same from the candidates who satisfy the conditions prescribed by AICTE in respect of minimum qualification and pass orders at the earliest to avoid the perils of lapse of seats and closure of the institutions." 11. M/s. R. Krishnamurthy and Doraisamy, learned senior counsel appearing on behalf of the appellants/petitioners, supported by the other learned counsel, have assailed the order as well as the aforementioned Government Orders on the ground that firstly, the said Government Orders themselves were invalid being contrary to the norms fixed by the AICTE and that the norms fixed by the AICTE could not be varied or contradicted to the detriment of the students. 12. Both the learned senior counsel pointed out that the observations in T.M. Pai case, cited supra, on which the learned single Judge had relied on, did not necessarily spell out a right in favour of the State Government to fix the norms contrary to those fixed by the AICTE. In that behalf, it was pointed out that the law laid down by the Supreme Court in STATE OF TAMIL NADU v. ADHIYAMAN EDUCATIONAL & RESEARCH INSTITUTE (1995 (4) SCC 104) was not adverted to by the learned Judge. In particular, the learned counsel heavily relied on the declaration of law in paragraph 40 of the said judgment. Learned counsel further urged that the law laid down in Adhiyaman case, cited supra, was not in any manner varied or watered down in T.M. Pai case, cited supra or even for that matter, in the case of ISLAMIC ACADEMY OF EDUCATION AND ANOTHER v. STATE OF KARNATAKA (2003 (6) SCALE 325), which was an exercise taken by the Apex Court to clarify the judgment in T.M. Pai case, cited supra. What was pointed out was that the State Government could insist on higher norms than the AICTE's norms only if there were more number of applicants and less number of seats available but not in a situation where the applicants were less and the seats were more. It was pointed out that there were in all 71000 seats (approximately) available and out of these half of the seats alone were to be filled in under Single Window System of Admission and the rest were to be filled in by the Management of the engineering institutions as per the law laid down in T.M. Pai case, which they actually did. Stretching the argument further, learned counsel pointed out that the norms fixed by the State could at the most be made applicable to the seats which were to be filed in under Single Window System but there was nothing to suggest that the State could provide for the minimum eligibility norms in respect of even the remaining seats over which the State had no control. It is then pointed that apart from the fact that the norms fixed by the State were contrary to the AICTE' s norms, the State had also completely misinterpreted the provisions of the AICTE Act. 13. Initially AICTE was not a party to the writ petitions. At the stage of the appeal, AICTE was added as a party and its' stand was informed regarding the actual norms of AICTE. 14. Shri Vijay Narayan, learned counsel appearing on behalf of AICTE, invited our attention to the counter-affidavit filed by AICTE wherein it is pointed out that by G.S.R.320 dated 11-7-1992, in exercise of the powers conferred by Sec.23(1) of AICTE Act as well as sec.10(o), the AICTE had prescribed the guidelines for admissions to Engineering Degree and Engineering Diploma programmes. The relevant guidelines provided as under: "1.1. Qualification for Admission of General Category Students: The minimum qualification for admission to degree programmes in Engineering should be a pass in the 10+2 (Senior Secondary) Examination with a minimum aggregate of 60 per cent marks in Physics, Chemistry and Mathematics obtained in a single sitting. The duration of degree programme in Engineering will be 4 years after 12th standard. This will apply to cases where admissions are based on the marks in the qualifying examination and not on the basis of entrance tests. ... ... ... "1.3. 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/UTs. 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 tests should be conducted by appropriate agencies set up for the purpose." It is then reiterated by the learned counsel that these guidelines have not been superseded by any subsequent guidelines or regulations by AICTE. From this, learned counsel urges that AICTE visualized two categories of students, viz. (i)Those who sought admission on the basis of the marks secured in the qualifying examinations only; and (ii)Those who sought admission on the basis of the marks secured by them in the Common Entrance Test held by the State/UTs. While in the first category, it was must for a student to secure the minimum aggregate of 60 per cent marks in Physics, Chemistry and Mathematics in a single sitting, in so far as the second category was concerned that was not necessary and the marks secured in the entrance test would alone matter for the admission. In short, according to the learned counsel, the position which is obtained is that if the student appears for the entrance test and seeks the admission on the basis of the marks scored therein, it would not matter if he had not scored the minimum aggregate of 60 per cent marks in the said three subjects in the 10+2 Examinations. 15. Learned counsel also invited our attention to the observations in paragraphs 13, 15, 16, 19 in Islamic Academy of Education case, cited supra. In the said decision, the Supreme Court has answered the questions 3 and 4 posed by itself. The questions were: "3) Whether private unaided professional colleges are entitled to fill in their seats to the extent of 100%, and it not to what extent; and 4) Whether private unaided professional colleges are entitled to admit students by evolving their own method of admissions." Learned counsel points out that in the aforementioned paragraphs, the Supreme Court had pointed out that in case of non-minority professional colleges also, the admission can only be on the basis of merit in the common entrance test conducted by the Government agencies. The Supreme Court further reiterated that in case of minority institutions, a preference could be given to the students of that community over and above the other communities of students. However, their inter se merit would have all the same to be considered and if the students belonging to that particular community do not fill up the seats, for which the institution was meant, the students of other communities could be admitted only on the basis of merit. It is also reiterated by the Supreme Court that the minority and non-minority professional colleges could select their students under Management Quota either on the basis of the Common Entrance Test conducted by the State or on the basis of the Entrance Test to be conducted by the association of colleges of particular type in that State. However, the option to hold the Common Entrance Test by the Association of Professional institutions would have to be exercised by such institutions before issuing of prospectus and after intimating to the concerned authority and the Committee, which was directed to be set up by the Supreme Court. Lastly, the Supreme Court reiterated for the formation of a Committee and also directed the details of such a formation. Learned counsel took the stand that since no other method of admission was contemplated, the petitioners/appellants were not entitled to any relief. 16. Shri Rajasekaran, learned Special Government Pleader, pointed out that the Government had not in any manner diluted the standards set up by the AICTE. On the other hand, the Government has every right to heighten the standards and for that purpose provide for the higher norms. Learned counsel very heavily relied on the observations in T.M. Pai case, cited supra, and also tried to distinguish the decision in Adhiyaman case, cites supra, by suggesting that the question which fell for consideration in Adhiyaman case, cited supra, was not a relevant question here and that the Supreme Court had made the observations in an entirely different context. 17. Shri G. Masilamani, learned senior counsel appearing on behalf of the Anna University, took the stand that it was proper to insist on a higher score in the Higher Secondary Examinations as, according to learned counsel, that provide a good platform to keep the students under check. Learned counsel was at pains to point out that if these norms were not prescribed then, the students will tend to behave in an uncontrolled and untrammelled manner and would not be amenable to the school or college discipline at all. Learned counsel, therefore, supported the Government Orders. 18. It will be for us now, on this backdrop, to test the correctness of the validity of the impugned Government Orders, which have been held to be valid by the learned single Judge. 19. In the first place, what strikes us is that the learned Judge did not have the advantage of taking into consideration the AICTE's norms and the stand taken thereupon. In fact, there can be no dispute that if we examine closer the norms fixed by the AICTE, it would be clear that those norms are totally contradictory to the norms fixed by the State Government. AICTE has contemplated two categories of students, as we have indicated above. There is no third category of students contemplated by AICTE, who are aspiring to apply for engineering seat. Where a candidate is seeking admission only on the basis of his performance in the qualifying examination, the norms are very clear that he must have secured a minimum aggregate of 60 per cent marks in Physics, Chemistry and Mathematics obtained in a single sitting in the 10+2 Examinations. To that extent, the norms of AICTE and the State Government are almost identical at least in respect of Open Category candidates. However, where a student seeks admission on the basis of his performance in the Common Entrance Test then, what is required is a 'mere pass' in the qualifying examination, i.e. Higher Secondary Examinations and such candidate need not have secured the minimum aggregate of 60 per cents marks in the said three subjects in 10+2 examinations and his scored in the entrance test alone would be relevant for the purpose of admission. The norms fixed by the State Government differ in this aspect from the norms fixed by the AICTE inasmuch as, according to the norms fixed by the State Government, if a student has appeared for the entrance test, TNPCEE'03 in this case, and desires to seek admission on the basis of his score in that entrance test, if he has scored less than the eligible marks in the Higher Secondary Examinations, he would not be able to seek the admission, even though he may be a topper in the entrance test. This position is all the more obtained because admittedly those students who were able to secure more than the minimum aggregate marks as contemplated in G.O. No.222 were not allowed to take part in the Single Window System of admission at all. Shri Rajsekar tried to justify this by saying that the score of a candidate in the TNPCEE alone was not taken into consideration in the Single Window System of admission but that score was added to the standardized score in the Higher Secondary Examinations and it is only such combined score, which was considered for the purpose of admission and, therefore, the State Government was justified in providing for a higher marks in the Higher Secondary Examinations. 20. There is a clear error in this. As we have pointed earlier, there were only two categories of students contemplated by AICTE and even if the student's score in the entrance test was combined with his score in the Higher Secondary Examinations yet, such student do not cease to be belonging to the category of students who sought the admission on the basis of the marks scored in the entrance test. The fact remains in case of such students, the admission was not being sought on the basis of the marks secured in the qualifying examination alone. There may be a different way of adjudging a student and his score in the entrance test and in that there even may be a consideration of his marks scored in the Higher Secondary Examinations. However, even that exercise