S. NarasimanS/o. Sankaraiah v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18-07-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MRS. JUSTICE R. BANUMATHIWRIT PETITION NO.24050 OF 2007S. NarasimanS/o. Sankaraiah.. PetitionerVs.1. The State of Tamil Nadu, Rep. by its Secretary, Higher Education Department, Fort St. George, Chennai 600 009.2. The Secretary, Tamil Nadu Engineering Admissions, Anna University, Chennai 600 025... RespondentsPetition filed under Article 226 of the Constitution of India forissuance of Writ of Mandamus directing the respondents to forthwith deletethe names of the students who have already applied for and got admissionto a professional course in the previous academic year and have nowapplied for admission to Engineering courses 2007-2008 and students whohave written the Higher Secondary Course examinations prior to 2006-2007from the ranking list for admission to Engineering courses for theacademic year 2007-2008 and consequently to revise the ranking list foradmission to Engineering Courses for the academic year 2007-2008.For Petitioner: Mr.N.G.R. Prasad for Mr.M. ChristopherFor Respondents: Mr.N. Kannadasan Addl. Advocate General Assisted by Ms. Dakshayani Reddy Govt. Advocate (Education) https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TP.K. MISRA, JThe present writ petition has been filed as a Public InterestLitigation for issuing a Writ of Mandamus directing the respondents,namely, the State of Tamil Nadu and the Secretary, Tamil Nadu EngineeringAdmissions, Anna University, to delete the names of the students who havealready applied for and got admission to a professional course in theprevious academic year and have now applied for admission to Engineeringcourses 2007-2008 and students who have written the Higher SecondaryCourse examination prior to 2006-2007 from the ranking list for admissionto Engineering courses for the academic year 2007-2008 and consequently torevise the ranking list for admission to Engineering courses for theacademic year 2007-2008.2. Admission to Professional Courses such as Medicine,Engineering, Dental, Agriculture, etc., were hitherto being effected onthe basis of the marks obtained in the qualifying examination i.e., Plus 2or Higher Secondary Course and Common Entrance Test in the proportion of200:100. However, as per the Tamil Nadu Admission in ProfessionalEducational Institutions Act, 2006 (Act 3 of 2007), the State Legislatureenacted a legislation abolishing Common Entrance Test. Validity of suchAct, abolishing the Common Entrance Test, was challenged and has beenupheld, subject to certain modifications relating to Architecture course,in the decision reported in 2007(2) CTC 677 (Minor S. Aswin Kumar, Rep. byhis father and natural guardian Mr.P.Shanmuga Nathan Vs. State of TamilNadu, Rep. by its Secretary to Government, Higher Education Department,Fort St. George, Chennai-9 and others). As per Act 3 of 2007, admissionto Professional courses such as Medicine, Engineering, Dental,Agriculture, etc., shall now take place on the basis of marks obtained inthe relevant subjects, i.e., Physics, Chemistry and Mathematics forEngineering course. 3. The first contention of the petitioner is to the effect thatsyllabus for Higher Secondary Course has been changed from the academicyear 2005-2006. In other words, those who had appeared in Plus 2examination in 2006 had studied different syllabus, whereas those who havepassed such examination in 2007 have studied under new syllabus.According to the petitioner, new syllabus is very tough. It is submittedthat without the method of any equalization, the students who had passedthe qualifying examination before 2007, should be made ineligible foradmission to Engineering course. https://hcservices.ecourts.gov.in/hcservices/

4. Petitioner has given a comparative chart of number ofstudents who have secured 100% marks in different subjects such asMathematics, Physics and Chemistry. Such chart indicates that in theexamination held in March, 2005, 2773 students had got 100% marks inMathematics, 1416 students had got 100% marks in Physics and 1416 studentshad got 100% marks in Chemistry, whereas corresponding number in the year2006 was 849, 17 and 119 respectively and number of such students in theyear 2007 in three subjects is 1,568, 217 and 145 respectively. Similarlyit has been stated that in Physics, 1940 students got 199 out of 200 marksin the examination held during 2005, whereas number of students got 199out of 200 was 95 in the examination held in March, 2006 and 473 in theexamination held in March, 2007. In Chemistry, 1940 students got 199 outof 200 in the examination held during the year 2005, whereas only 282students got similar marks in March, 2006 and 317 students got similarmarks in March, 2007. On the basis of such statistics, it is contendedthat because of change in syllabus and the examination becoming tougher,less and less number of students have secured 100% marks in March, 2007and therefore the students who have passed examination held during theprevious years should not be allowed to compete with the students who havepassed in March, 2007. It is submitted by him that since there was changein syllabus, in the absence of any method adopted for equalization, itwould be arbitrary to allow students who had passed in the previous yearsto get admission on the basis of such high marks by competing with thestudents of the year 2007, who because of change in syllabus have securedless marks. This according to the learned counsel violates the principleof equality which has already been recognized in several decisionsrelating to admission, more particularly in 2007(2) CTC 677 (cited supra).5. The second contention of the petitioner is to the effect thatwhatever may be the status of the students of the previous years, who hadnot been admitted to professional courses during earlier years, at leastthose students who had got admission to professional courses should beprevented from seeking selection on the basis of marks obtained by them inthe qualifying examination held during the earlier years. Learned counselfor the petitioner has placed strong reliance upon the fact that foradmission to MBBS Course the State Government has conceded to such aposition as is apparent from the unreported judgment of the Division Benchin W.P.Nos.22787, 23173, 23326, 23328 of 2007 disposed of on 10.7.2007. 6. Learned Additional Advocate General appearing for Respondents1 and 2 has submitted that the contention to the effect that all thestudents of previous years should be made ineligible on the ground of socalled change in syllabus cannot be accepted. He has further submitted onthe basis of instructions that the concession, which was recorded inrespect of admission relating to MBBS/BDS, cannot be made applicable foradmission to Engineering courses. It is submitted by him that foradmission to MBBS/BDS course, for atleast past 20 years a restriction hadbeen imposed and included in the prospectus making the students undergoingany of the professional courses ineligible to apply at the time of https://hcservices.ecourts.gov.in/hcservices/ applying for MBBS/BDS Course and similarly the students who had alreadyjoined in a professional course and discontinued the course on any groundafter six months, were also made ineligible.7. As a matter of fact, it was not disputed even by the learnedcounsel for the petitioner that such restrictions have all along been invogue at least for the last 20 years for admission to MBBS/BDS Course, butan exception has been sought to be made during the current year 2007-2008.It is this change in the policy relating to eligibility criteria forMBBS/BDS in the year 2007-2008 was the subject matter of dispute in thewrit petitions disposed of by the High Court and the High Court by relyingupon the earlier Division Bench decision of this Court in 1984 WLR 249(SUGANTHI, K. v. STATE OF TAMIL NADU) and the Full Bench decision of theBombay High Court reported in AIR 1995 Bombay 1 (KOMAL K. CHITNIS v.DIRECTOR, MEDICAL EDUCATION AND RESEARCH, BOMBAY) and on the basis of theconcession given by the learned Advocate General, held that therestriction imposed during the academic session 2006-2007 should also befollowed during the present year. 8. Learned Addl. Advocate General has pointed out that so far asadmission to MBBS/BDS course is concerned, the change in policy did notfind favour with the High Court. However, for the admission toEngineering Courses there was never any such restriction imposed duringlast 20 years or so. It is submitted by him that since the demand forseats for admission to MBBS and BDS courses is much higher, the policy,which was followed for admission to such courses for 20 years, waspossibly justified; whereas such a policy need not be followed foradmission to Engineering Courses keeping in view the fact that number ofseats available for Engineering Courses far exceeded number of applicantsduring last several years.9. After bestowing our anxious consideration to the contentionsraised, we have no hesitation in rejecting the contentions raised by thelearned counsel for the petitioner.10. Petitioner is seeking for a writ of Mandamus directing theGovernment to change its policy of admission relating to EngineeringCourses. The main attack of the learned counsel for the petitioner isbased on the perceived possible inequality. He has submitted thatunequals are being treated as equals which amounts to discrimination.Learned counsel has submitted that as during the previous years number ofstudents getting 100% marks in the relevant subjects such as Mathematics,Physics and Chemistry being comparatively higher would clearly put thestudents of this year at a disadvantage and such disparity in the numberof students securing high marks, according to the learned counsel, is dueto change of syllabus. https://hcservices.ecourts.gov.in/hcservices/

11. On the materials placed before us, we are not in a positionto accept such a bald statement made by the petitioner. We find that infact number of students who got 100% marks in Mathematics, Physics andChemistry in the examination held in March, 2006 was considerably lowerthan number of such students who got 100% marks in March, 2007.Therefore, the basic assumption that syllabus for the year 2007 wastougher as compared to the previous years on the face of it sounds hollow.It is of course true that number of students securing 100% marks inMathematics, Physics and Chemistry in the year 2005 was higher as comparedto number of students who got such 100% marks during the year 2007. Thatby itself is not even prima facie sufficient to come to the conclusionthat there is any violation of principle of equality. Even assuming thatthere has been some changes in the syllabus, on this basis alone we arenot prepared to jump to the conclusion that the students who have passedduring the earlier years should not be allowed to be selected on the basisof marks obtained in the qualifying examination and the admission shouldbe confined to the students who have passed in the year 2007. If such anextreme view is to be taken, future of the students who had passed duringthe earlier years would be clogged for ever. 12. Even though ideally absolute equality is required to beachieved, in reality it is a myth. Even where only one examination isheld by one institution during a particular year, it cannot be said thatabsolute equality is achievable because as of necessity the answer papersare to be examined by different examiners who would obviously havedifferent yardsticks for evaluation. In this connection, one may recollectthe observations made by Justice Krishna Iyer in (1979) 1 SCC 572 (STATEOF KERALA v. KUMARI T.P. ROSHANA AND ANOTHER). In the said matter, whicharose out of a Full Bench decision of Kerala High Court. The directiongiven by the High Court for holding entrance examination on the footingthat there was disparity in the standard of examination and evaluation wasstruck down by the Supreme Court in appeal, by observing:-"15. We are not impressed much with the surmise whichcolours the reasoning of the Full Bench and the learned SingleJudge that there is such substantial difference in the pre-degreecourses and evaluations between the sister universities withinthe same State that the breach of Article 14 by equal treatmentof the marks unequally secured by examinees in the twouniversities may be spelt out. It is trite law that everyinconsequential differentiation between two things does notconstitute the vice of discrimination, if law clubs them togetherignoring venial variances. Article 14 is not a voodoo whichvisits with invalidation every executive or legislative fusion ofthings or categories where there are no pronounced inequalities.Mathematical equality is not the touchstone of constitutionality.This Court in Triloki Nath Khosa [(1974) 1 SCC 19] cautioned: “Mini-classifications based on micro-distinctions are falseto our egalitarian faith and only substantial and https://hcservices.ecourts.gov.in/hcservices/ straightforward classifications plainly promoting relevantgoals can have constitutional validity. To overdoclassification is to undo equality.” In the same ruling there was a caveat entered by Chandrachud, J.(as he then was) against “a charter for making minute andmicrocosmic classifications”. What is more, a large latitude isallowed in this area to the State to classify or declassify basedon diverse considerations of relevant pragmatism, and thejudiciary should not “rush in” where the executive warily treads.. . . We are aware that there are Universities and Universities,that gross divergences among them exist affecting the quality ofthe teaching and the marking, the anomalies of grading and theabsurdity of equating the end products on the blind assumptionthat the same marks mean the same excellence. But not glibsurmises but solid facts supply the sinews of discriminatoryinequality or equality. ...17. The vagarious element in marking and moderation of marksmay be a fact of life, but too marginal to quality forsubstantial difference unless otherwise made out. Indeed, theremay be differences among the colleges under the same university.Such fleeting factors or ephemeral differences cannot be thesolid foundation for a substantial differentiation which is thenecessary pre-condition for quashing an executive or legislativeact as too discriminatory to satisfy the egalitarian essence ofArticle 14. The functional validation of the writ jurisdictionis an appropriate examination of the substantiality of thealleged disparity. We do not, however, proceed finally topronounce on this point with reference to the two universitiessince nothing is available before us, or, for that matter, wasbefore the High Court to warrant a fair conclusion on the issue.We are persuaded to make these observations for future guidance,so that academic schemes may not be struck down as arbitrary orirrational save where some sound basis has been laid." (Emphasis added)13. In fact the Full Bench decision of the Bombay High Court(supra) relied upon so much by the learned counsel for the petitioner hadrepelled in no uncertain terms a similar contention of excluding thestudents who had passed during the previous years. The Bombay High Courthad observed :-"23. As a matter of fact, the particular examination of aparticular Board or University, irrespective of the fact as to inwhich year the candidate has passed the same; is always treatedon par for all purposes. We find it impossible to subscribe tothe view that the students passing the same examination indifferent years constitute different classes merely by virtue ofthe fact that they have given the same examination in differentyears. Even marginal difference in the curriculum or method f https://hcservices.ecourts.gov.in/hcservices/ assessment or such other factors in respect of different yearsfor the same examination would not be sufficient to categorisethe students into different classes. . . ."14. Keeping in view the sentiments expressed above, particularlyin the decision of the Supreme Court, we are unable to persuade ourselvesto come to a conclusion that a level playing field is not available andthe students who have passed prior to 2007 should be deprived of anopportunity of pursing Engineering courses. For the purpose of grantingrelief to some of the students of the year 2007 likely to be affected, wecannot think of shutting the door for ever in respect of the students ofpreceding years. We do not find any rhyme or reason in such contention.In such view of the matter, the latter portion of the relief claimed bythe petitioner to the effect that the students who had passed during theprevious years should be made ineligible is required to be rejected.15. The next contention is obviously inspired by the concessiongiven in the matter relating to admission for MBBS/BDS. Learned counselfor the petitioner has contended that such of the students, who hadalready taken admission during the previous years, may be in some lesssought after subjects, should not be allowed to corner the seats in morecherish subjects available during the current year on the basis of themarks obtained during the examinations for the earlier years.16. We have already noticed the contention raised by the learnedAddl. Advocate General that so far as admission to MBBS/BDS is concerned,for more than 20 years such a course was being adopted and only duringthis year the Government has made a slight variation. It is rightlysubmitted by the learned Addl. Advocate General that since suchrestrictive conditions were all along existing, those students, who hadtaken admission to professional course in spite of knowledge of suchrestrictive conditions, did not have any right nor expectation far lesslegitimate expectation of seeking admission to MBBS/BDS course. In factin the unreported decision in W.P.No.22787 of 2007 & others, the DivisionBench has recognized this aspect as apparent from the observation made inparagraph 8 of the judgment. However, according to the learned Addl.Advocate General, the concession, which was given in the said case on itsown peculiar facts, cannot be extended, more particularly by issuing awrit of Mandamus directing the Government to change its policy. On theother hand, it has been rightly submitted by him that such policy ofallowing students from any previous year, whether admitted to anyprofessional courses or not, to seek admission to Engineering Courseshaving been followed consistently for atleast two decades, it can be saidthat such students, including the students who had taken admission to someless sought after streams of Engineering, had legitimate expectation ofpursuing a better prospect in life by seeking admission to a betterstream. Merely because Common Entrance Test has been abolished this year,it should not have the effect of depriving such students in any existinginstitution the opportunity of seeking admission on the basis of marksobtained by them. If the contention raised by Mr.N.G.R. Prasad is taken https://hcservices.ecourts.gov.in/hcservices/ to its logical end, a student who had secured higher marks in theconcerned subjects may be denied an opportunity of getting admission to abetter stream this year merely because he had willy-nilly taken admissionto some Engineering Course during the previous years as compared to astudent who had secured less marks during the previous years and hadfailed to secure admission. A student who was unable to get admissionduring the previous years does not become more meritorious merely becausea student who was found more meritorious than him had got admission tosome professional course. The same logic is also applicable to lessmeritorious students who have passed out this year. 17. The matter can be viewed from another angle. Article 19(1)(g) of the Constitution empowers every citizen to practice any professionor to carry on any occupation. Obviously for the purpose of pursuing anyprofession, a student is required to pursue a professional course and hasa right to pursue such education which is best suited for his talent andalso for his future prospects. His right under Article 19 or may be evenunder Article 21 would be violated, if he would be deprived of such optionto pursue any academic course merely because he has taken admission duringa previous year, not knowing what the future holds for him. If a betteropportunity comes to him during subsequent years, it would be too unjustto deprive him of such opportunity. There are many instances where manyeminent people have changed their education midstream and subsequentlyshone in the changed field of education/profession.18. The decision relating to MBBS students can be clearlydistinguished by observing that for such students already such arestriction had been in vogue for more than 20 years and there was adeparture in the policy, which was found to be arbitrary. On the otherhand, so far as the Engineering students are concerned, the consistentpolicy throughout has been to permit such existing students pursuing anyprofessional course to join in Engineering course, who is otherwiseeligible for.19. The submission so glibly and even forcefully putforth by thelearned counsel on the basis of doctrine of wastage of a seat, if acceptedfor admission to all professional courses irrespective of groundrealities, has its own inherent contradictions and may leave manyquestions unanswered. Why should a student of previous years who couldnot get selected because of less merit and had joined a "general course"as distinct from "professional course" be allowed to join professionalcourse in later years? Is there no wastage of a general seat if heswitches over to some professional course subsequently ? If he is allowedto change his volition and better his future prospects by seekingadmission to a professional course in later years, a student who was foundmore meritorious and selected for some professional course be deprived ofsuch similar opportunity? Should the Hobson's choice made by such astudent of taking admission to some professional course during aparticular year rather than taking admission to a "general course" be heldagainst him for all times to come ? https://hcservices.ecourts.gov.in/hcservices/

20. It is no doubt true that the Courts have recognized theright of the State to lay down its policy and such restrictions whenimposed have been found reasonable, but obviously because of peculiar factsituation and background materials. Ultimately it is for the State to laydown the relevant principles or guidelines. Jurisdiction of the Courts islimited to the extent of examining the legality of such provisions, not tosit in judgment over relative merit or demerit of such provisions unlesssuch provisions are found to be wholly arbitrary.21. In the decision reported in AIR 1964 SC 1823 (R. CHITRALEKHAv. STATE OF MYSORE AND OTHERS), the Supreme Court has observed:-"Once it is conceded, and it is not disputed before us, thatthe State Government can run medical and engineering colleges, itcannot be denied the power to admit such qualified students aspass the reasonable tests laid down by it . This is a power whichevery private owner of a college will have, and the Governmentwhich runs its own colleges cannot be denied that power .” 22. In AIR 1968 SC 1012 (RAJENDRAN v. STATE OF MADRAS), theSupreme Court had recognised the right of the Government to frame rulesrelating to admission to colleges controlled by it. Similarly, in AIR1970 SC 35 (CHITRA GHOSH v. UNION OF INDIA), it was recognized that it isfor the Government to prescribe the eligibility criteria. 23. In AIR 1971 SC 2560 (THE STATE OF ANDHRA PRADESH AND ANOTHERv. LAVU NARENDRA NATH AND OTHERS), the principles laid down in AIR 1964 SC1823, AIR 1968 SC 1012 and AIR 1970 SC 35 (cited supra) were againreiterated. Moreover, in the aforesaid decision, in paragraph 18, it wasalso recognized that a student may have the right or "liberty" underArticle 21 of the Constitution to seek admission, however, subject to anyrules or regulations governing the field.Such observation of the Supreme Court in Chitralekha's case was citedwith approval in T.M.A. Pai Foundation's case [(2002) 8 SCC 481].24. As per the aforesaid decisions, the Government is free tolay down its own policy, of course within permissible parameters of theConstitution. The Government in its wisdom for the last so many decadeshad followed a policy of admitting a student in Engineering course, eventhough such a student was admitted to any other professional courseincluding any stream of Engineering course, which remained unchallengedall these years. Such policy is also continued this year. There isnothing intrinsically arbitrary in such a policy. In the Full Benchdecision of the Bombay High Court and the Division Bench decision of thisCourt, validity of a policy excluding certain types of students was inquestion and in the peculiar facts available, the Courts found that therewas a reasonable basis for such classification. In the Division Benchdecision of this Court in W.P.No.22787 of 2007 & others, such policy wasfound to be in existence for more than 20 years and when it was suddenly https://hcservices.ecourts.gov.in/hcservices/ changed, the Court found it be unwise, obviously on a different factualscenario. 25. For the reasons indicated, we are unable to persuadeourselves to accept the contention of the learned counsel for thepetitioner that by following the said decision of the Government relatingto admission to MBBS/BDS, a Mandamus should be issued to the Government tochange its policy. 26. For the aforesaid reasons, we do not find any merit in thiswrit petition, which is accordingly dismissed without any order as tocosts.dpkSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The State of Tamil Nadu, Rep. by its Secretary, Higher Education Department, Fort St. George, Chennai 600 009.2. The Secretary, Tamil Nadu Engineering Admissions, Anna University, Chennai 600 025.+1 cc to the Government Pleader Sr.No.43769.+1 cc to Mr.M.Christopher, Advocate Sr.No.43617.NG(CO)dcp/19.7.07 WP.NO.24050/2007