Minor Nishanth Rameshrep. by Mother/Natural Guardian v. The State of Tamil Nadurep. by its Secretary to Govt.Education Department

ORDER(Order of the Court was made by The Honourable The Chief Justice)These writ petitions raise a short but an importantquestion as to the constitutional validity of the TamilNadu Regulation of Admission in Professional Courses Act2006 (Tamil Nadu Act 2 of 2006), hereinafter for brevity’ssake called the "Act". Since common questions of law andfact are involved, we have heard all the cases together anddisposing them of by this judgment. 2. In W.P.No.3951 of 2006, Minor Nishanth Ramesh vs.State of Tamil Nadu (which we are treating as the leadcase), the petitioner is a Plus two student of VidyaMandhir School, affiliated to Central Board of SecondaryEducation (C.B.S.E.), Chennai. The Tamil Nadu State Board,I.S.C. and C.B.S.C. are the three Boards which offer Plustwo course in the State of Tamil Nadu. 3. It has been alleged that ever since 1984, theadmission to the professional colleges in the State ofTamil Nadu was governed by G.O.Ms.No.657, dated 29.5.1984.The said Government Order prescribed admission to theprofessional college on the basis of qualifying examination(Plus two) and Common Entrance Test on the basis of theState Board Syllabus for all the Board students. The interse merit for admission to the professional college on thebasis of 200 marks for qualifying exam and 100 marks forCommon Entrance Test in total 300 marks, was taken incommon for all the Board students. In the year 2005, byG.O.Ms.No.184, the State Government abolished CommonEntrance Test for admission to professional colleges. Thatwas successfully challenged by a student N.Priyadharshini.A Division Bench of this Court was pleased to strike downthe said G.O. in a reported judgment in Priyadharshini N.vs. The State of Tamil Nadu represented by its Secretary toGovernment, Education Department, Chennai (2005 (3) CTC449). 4. It has been further alleged that the State of TamilNadu by Act 2 of 2006 has passed a legislation which on theone hand dispensing with Common Entrance Test to StateBoard students, introduced Common Entrance Test for theother Board students alone as eligibility test foradmission to professional colleges in the State of TamilNadu. The Act thus seeks to scrap the Common Entrance Testfor State Board students while making it mandatory forstudents of other Boards. This is a blatant discriminationagainst the students studying in non-State Board whencompared to State Board students. The State Board studentsare at an advantageous position as they are exempted from https://hcservices.ecourts.gov.in/hcservices/ writing the Common Entrance Test, whereas the students fromother Boards are required to write Common Entrance Test.The provisions of the Act are thus discriminatory,arbitrary and violative of Article 14 of the Constitution. 5. It is alleged that in the matters relating toadmission, the State cannot follow a procedure which isinconsistent with the procedure prescribed by the MedicalCouncil of India Regulations and the All India Council forTechnical Education Regulations. The subject relating todetermination of standards in institutions for highereducation or research and scientific and technicalinstitutions falls under Entry 66 of List I of the SeventhSchedule and the State legislature has no legislativecompetence to enact the present law determining theprocedure for admission to professional courses. To thatextent, the Act is ultra vires the Regulations of MCI andAICTE which have an overriding power under the scheme ofthe Constitution. It is alleged that the Act in thepresent form constitutionally violates the MCI and AICTERegulations and orders of the Supreme Court governingadmission to professional courses. 6. In the light of the challenge raised by thepetitioners, we may now examine the provisions of TamilNadu Act 2 of 2006. The preamble of the Act states that ithas been enacted to regulate admission to professionaldegree courses such as engineering, medicine, dental,agriculture and other incidental and ancillary coursesthereto. Sections 2(b), 2(d), 2(h), and 2(n) define“Arrival of eligibility marks”, Common Entrance Test”,“Cut-off marks” and “Qualifying eligibility” respectivelyas follows: “Section –2: In this Act, unless the contextotherwise requires;-(b) “Arrival of eligibility marks” means thecomparison of the marks of students who havepassed, qualified and obtained eligible cut-offmarks as prescribed by the Authorities of therespective institutions or Universities who decideit as marks for admission based on the marks of thestudents who have passed the Higher Secondary BoardExaminations conducted by the Department ofEducation, Government of Tamil Nadu and the marksof such of those students who have obtained sucheligibility criteria marks wholly through theCommon Entrance Test which are conducted only tothose students who are drawn from disciplines otherthan curriculum offered by the Board of Higher https://hcservices.ecourts.gov.in/hcservices/ Secondary School Examinations of the Government ofTamil Nadu;(d) “Common Entrance Test” means an EntranceTest in the Common Entrance Test Syllabus,conducted by the State Government or an Universityor an Authority or an agency authorized by theGovernment of Tamil Nadu for the purpose ofadmission to a professional course so as to arriveat an equation or standardization of only to thosestudents of different styles or patterns of Schoolfinal Examinations or curriculums such as CentralBoard of Secondary Education so as to compare theeligibility criteria for Professional Course withthat of students who have qualified by passingthrough the Tamil Nadu State Board Examinationsconducted at the Higher Secondary (Plus two) level;(h) “Cut-off marks” means the highest marksprescribed by the respective authorities inwhichever discipline it may be or whicheverBachelor Degree Course it may be and the same shallbe based upon the marks valued and obtained in theHigher Secondary School Leaving Certificate Courseconducted by the Board of Secondary Examinations,Government of Tamil Nadu, at the Higher Secondary(Plus two) level, and the equivalent marks obtainedin the Common Entrance Test by other studentsnamely, Central Board of Secondary Education orIndian School Leaving Certificate Course or anyother State Board of any other State or any otherSchool final (twelfth standard) qualifyingcertificate. Explanation:- The students who hold the HigherSecondary School Leaving Certificate aftersuccessfully completing the examinations conductedby the Board of Higher Secondary SchoolExaminations so authorized by the State Board atthe Higher Secondary School level (Plus two) neednot undergo the Common Entrance Test since the cut-off marks are to be fixed only on the basis of themarks obtained in the examinations conducted by theBoard of Secondary Examinations at the HigherSecondary (Plus two) level, Government of TamilNadu; https://hcservices.ecourts.gov.in/hcservices/ (n) “Qualifying Eligibility” means thestudents who possess the eligible marks foradmission by passing the Higher SecondaryExamination conducted by the Board of HigherSecondary Examinations in Higher Secondary (Plustwo) level in Tamil Nadu conducted under theDepartment of Education, Government of Tamil Nadu.7. Section 3 provides that the marks obtained in thequalifying examination conducted by the State Board at thetwelfth standard (Plus two) level to its students shall bethe basic marks for admission. The students of otherdisciplines or Boards or streams will have to take a CommonEntrance Test which is of the same syllabus as the StateBoard plus two level, and the State Board students are notrequired to take this test. Section 5 provides forevaluation of students of various other Boards with StateBoard students. It reads as under:-“The equation of students who have qualifiedthrough various Boards or various streams fromwhich the students are drawn shall be done onlyafter they undergo the Common Entrance Test basedon the syllabus of the State Board and the marksobtained in such a Test shall be equated with themarks obtained by the students in the plus twoexamination of the State Board conducted by theBoard of Higher Secondary Examinations of theGovernment of Tamil Nadu.” 8. Section 6 provides that Common Entrance Test shallnot be applicable to State Board Students and the marksobtained by them shall be the base cut-off marks to whichthe students of other disciplines as enumerated in the Actshall qualify through the Common Entrance Test. Section 7provides that the admission criteria for all kinds ofstudents shall be on the cut-off marks equated by treatingthe marks obtained on the syllabus of State curriculumprescribed by the Board of Higher Secondary Education,Government of Tamil Nadu as the basis for admission.Section 8 makes the provisions of Section 4 of the TamilNadu Backward Classes, Scheduled Castes and ScheduledTribes (Reservation of seats in Educational Institutionsand of appointments of posts in the Service under theState) Act, 1993 (Tamil Nadu Act 45 of 1994) applicable tothe admission for the professional courses. Section 10confers on the State Government power to make rules forcarrying out the purposes of the Act. 9. In exercise of the powers conferred by the Act, theState Government has framed the Tamil Nadu Regulation ofAdmission in Professional Courses Rules, 2006. Rule 2(ii) https://hcservices.ecourts.gov.in/hcservices/ defines “Students of Boards other than State Board” to meanthe students who have taken school curriculum either bymeans of Central Board of Secondary Education or IndianSchool Leaving Certificate Course or any other Board otherthan the State Board in Tamil Nadu or any other schoolqualifying certificate which is treated to be equivalent tothe Board of Secondary Examinations in Higher SecondaryCourse conducted by the State Board in Tamil Nadu. Rule 4provides that a “Common Merit List” will be prepared bycomputing the aggregate marks obtained by the students, inthe related subjects (theory and practical mentioned in theprospectus), in the twelfth standard (Plus two) examinationconducted by the State Board and by computing the aggregatemarks obtained by the students, other than the State Board,who appeared for the qualifying examination, in the CommonEntrance Test (theory and practical mentioned in theprospectus), based on the State Board syllabus in theappropriate ratio. Rule 7 contemplates “voluntary sharingof seats by unaided professional colleges” and for thatunaided professional colleges may voluntarily give, inwriting their consent to the Government or to the Directorof Government Examinations, Government of Tamil Nadu or tothe authority or authorities specified in Rule 6. While,doing so, they shall intimate clearly the number of seatsthey will be surrendering to the Government of Tamil Nadufor making admission through its Single Window System byfollowing the rule of reservation as provided in the TamilNadu Backward Classes, Scheduled Castes and ScheduledTribes (Reservation of seats in Educational Institutionsand of appointments of posts in the services under theState) Act, 1993 (Tamil Nadu Act 45 of 1994). 10. The aforesaid provisions of the Act including itspreamble make it abundantly clear that the sole object ofthe Act is to abolish Common Entrance Test for the studentsof State Board while making it mandatory for the studentsof other Boards. Section 3 of the Act expressly providesthat as far as State Board students are concerned the marksobtained in the qualifying examination conducted by theState Board i.e., twelfth standard (Plus two) levelexamination shall be the basis for admission. Whereas thestudents of other disciplines or Boards or streams willtake a Common Entrance Test which is of the same syllabusas that of the State Board (Plus two) level. This positionis further made clear by Section 4 which states that theCommon Entrance Test is meant only to those students whohave not studied under the State Board syllabus meant forHigher Secondary Examination conducted by the Tamil NaduState Board. Thus, the students of the other Boards whohave passed the Higher Secondary Examinations conducted bythe respective Boards will not be eligible for admission toprofessional courses unless they write a Common EntranceTest. Section 5 provides that the equation of students who https://hcservices.ecourts.gov.in/hcservices/ have qualified through other Boards or streams shall bedone only after they undergo the Common Entrance Test basedon the syllabus of the State Board and the marks obtainedin such a Test shall be equated with the marks obtained bythe students in the Plus two examination of the State Boardconducted by the Tamil Nadu State Board. Section 7 thenstates that the admission criteria for all kinds ofstudents shall be on the cut-off marks equated by treatingthe marks obtained on the syllabus of State Curriculumprescribed by the State Board. It is pertinent to note thatthough section 8 read with Section 2(k) makes theprovisions of Section 4 of the Tamil Nadu Act 45 of 1994applicable to the admission to all professional courses,Rule 4 of the Rules specifically provides that there willbe only seat-sharing arrangement in unaided professionalcolleges and no reservation will be provided in the unaidedcolleges under Tamil Nadu Act 45 of 1994. During the courseof hearing it was also clarified on behalf of the StateGovernment that the reservations will not apply to minorityinstitutions. 11. The question that falls for consideration iswhether the State enactment falls within Entry 66 List I orEntry 25 List III – Concurrent List of the Seventh Scheduleto the Constitution. The second question is assuming thatthe enactment falls under Entry 25 List III whether it isviolative of right of equality guaranteed under Article 14of the Constitution.12. We may now examine the provisions of the relevantCentral Laws. In exercise of power under Indian MedicalCouncil Act, 1956 the Central Government has framedRegulations on Graduate Medical Education, 1997. Therelevant part of the Regulations on Graduate MedicalEducation, 1997 reads as follows:-"MEDICAL COUNCIL OF INDIASALIENT FEATURES OF REGULATIONS ON GRADUATEMEDICAL EDUCATION, 1997PUBLISHED IN PART III, SECTION 4OF THE GAZETTE OF INDIA DATED 17TH MAY 19971. Short Title and commencement:- (1) Theseregulations may be called the "Regulations onGraduate Medical Education, 1997".(2) They shall come into force on the date oftheir publication in the Official Gazette. https://hcservices.ecourts.gov.in/hcservices/ Admission, Selection, Migration and TrainingAdmission to the Medical Course – EligibilityCriteria : No candidates shall be allowed to beadmitted to the Medical Curriculum of firstBachelor of Medicine and Bachelor of Surgery(MBBS) Course until:1. He/She shall complete the age of 17 years onor before 31st December, of the year admission tothe MBBS course.2. He/She has passed qualifying examination asunder:(a) The higher secondary examination or theIndian School Certificate Examination which isequivalent to 10+2 Higher Secondary Examinationafter a period of 12 years study, the last twoyears of study comprising of Physics, Chemistry,Biology and Mathematics or any other electivesubjects with English at a level not less thancore course of English is prescribed by theNaional Council of Educational Research andTraining after the introduction of the 10+2+3years educational structure as recommended by theNational Committee on education.(b) .............. (c) .............. SelectionThe selection of students to medical collegeshall be based solely on merit of the candidateand for determination of the merit, the followingcriteria be adopted uniformly throughout thecountry:1. In states, having only one Medical College andone University board/examining body conductingthe qualifying examination, the marks obtained atsuch qualifying examination may be taken intoconsideration.2. In states, having more than oneuniversity/board/examining body conducting thequalifying examination (or where there is morethan one medical college under the administrativecontrol of one authority) a competitive entrance https://hcservices.ecourts.gov.in/hcservices/ examination should be held so as to achieve auniform evaluation as there may be variation ofstandards at qualifying examinations conducted bydifferent agencies:3. Where there are more than college in a Stateand only one University/Board conducting thequalifying examination, then a joint selectionboard be constituted for all the colleges.4. A competitive entrance examination isabsolutely necessary in the cases of Institutionof All India character."13. So far as admissions to engineering colleges areconcerned, there are AICTE Regulations similar to theMedical Council Regulations. In exercise of powersconferred by Section 23(1) of the All India Council forTechnical Education Act, 1987 the All India Council forTechnical Education has prescribed the following guidelinesfor admission to students in Engineering and Diplomacourses pursuant to Section 2(o) of the said Act, whichstates that the Council may:"Provide guidelines for admission tostudents to technical institutions andUniversities imparting technical education."Guideline No.3 of the aforesaid Guidelinesstates:"Entrance tests.- All States/UnionTerritories (Uts) should conduct entrance testsin the subjects of Physics, Chemistry andMathematics at 12+ level. The entrance testshould be common to all engineering degreeinstitutions in the State/UT. The minimum marksfor eligibility for the entrance test need not beprescribed in the case of degree courses and allstudents who have passed the qualifyingexamination may be permitted to appear in theentrance test. Only the merit ranking in theentrance test should be the basis for admissionto engineering degree programmes. Such testshould be conducted by appropriate agencies setup for the purpose." https://hcservices.ecourts.gov.in/hcservices/ In addition to the above, Regulation 7 of theA.I.C.T.E. Regulations states:" A common merit list in accordance with theprovisions of sub-regulation (5) shall beprepared from amongst all the candidates providedthat in States where no such entrance examinationshall be held for admissions to be made from theacademic year 1995."14. Similar provision is also there with regard toDental Colleges vide Dental Council of India B.D.S.CourseRegulation, 1996 which states:"Selection of Students.-(a) The selection of students to a Dental Collegeshould be based solely on merit of the candidateand for determining the merit the marks obtainedat the qualifying examination conducted by theBoard/Examining body conducting such examination,be taken into consideration exception being MBBSdegree holders.(b) In States, having more than oneUniversity/Board/Examining Body conducting thequalifying examination (or where there are morethan one Dental College under theadministrative/control of one authority) acompetitive entrance examination may be held soas to achieve a uniform evaluation due tovariation of the standard of qualifyingexaminations conducted by different agencies.(c) A competitive entrance examination isabsolutely necessary in the case of Institutionsof all India character." 15. The 1997 Regulation (quoted above) makes it clearthat in States having only one Medical College and oneUniversity board/examining body conducting the qualifyingexamination, the marks obtained at such qualifyingexamination may be taken into consideration for grantingadmissions in M.B.B.S. Course. However, in States havingmore than one university/board/examining body, an entranceexamination is mandatory. This is because, as pointed outby several judgments of the Supreme Court, differentexamining bodies have different standards of marking,different syllabus etc. and hence a student who appears forthe examination conducted by an examining body which isstringent in granting marks will be discriminated vis-a-vis https://hcservices.ecourts.gov.in/hcservices/ a student who appears for the examination conducted by anexamining body which is liberal in granting marks. Thiswill be violative of Article 14 of the Constitution as heldin the said decisions. The 1997 Regulation has statutoryforce as under Section 33 of the Indian Medical CouncilAct, 1956 it will amount to delegated legislation. InAndhra Bank Vs. B.Sathyanarayanan, 2004 (2) SCC 657 (videpara-10) it was held by the Supreme Court that a validregulation once framed would be part of the statute.Similarly, in St. Johns Teachers Training Institute Vs.Regional Director, 2003 (3) SCC 321 the Supreme Courtobserved (SCC page 332):- “Regulations made under power conferred bythe statute are subordinate legislation and havethe force and effect, if validly made, as an Actpassed by the competent legislature. (See SukhdevSingh Vs. Bhagatram Sardar Singh Raghuvanshi, AIR1975 SC 1331.)” In the instant case, it is not disputed by the respondentsthat the regulations in question have been validly madeunder the power conferred by the statute, and hence, theyhave to be treated as part of the relevant statute itself. 16. The submission of Mr.K.M.Vijayan and Mrs.NaliniChidambaram, learned Senior Counsel appearing for thepetitioners is that the State Legislature is not competentto legislate on the matter relating to eligibility andselection for admission to professional courses, which isgoverned by the Central Legislation under Entry – 66 ofList – I of the Constitution of India like MCI Act, AICTEAct, etc. The Common Entrance Test is mandatory in theState of Tamil Nadu since there are several examiningBoards in the State. In the legislative field exclusivelygiven to the Parliament under Entry – 66 of List – I of theConstitution the State has no competence to pass anylegislation under Entry – 25 of List III of theConstitution. For proper consideration of the submission,we may set out these two entries:- Entry 66 List I:Co-ordination and determination of standards ininstitutions for higher education or research andscientific and technical institutions.Entry 25 List III:Education, including technical education, medicaleducation and universities, subject to theprovisions of Entries 63, 64, 65 and 66 of ListI; vocational and technical training of labour. https://hcservices.ecourts.gov.in/hcservices/

17. Till January 3, 1977, education was a Statesubject under Entry 11 in List II. By the Forty-secondAmendment Act 1976, Entry 11 was deleted and it was placedin the Concurrent List by enlarging the Entry 25, as setout above. The interplay between various entries in thisregard in the three lists of the Seventh Schedule and thereal import of Entry - 66 of List – I have been examined inseveral decisions of the Supreme Court. In GujaratUniversity Vs. Krishna Ranganath Mudholkar, AIR 1963 SC 703a decision by a Constitution Bench rendered prior to theForty-second Amendment when Entry 11 of List II was inexistence, it was held that Items 63 to 66 of List I arecarved out of the subject of education and in respect ofthese items the power to legislate is vested exclusively inParliament. The use of the expression “subject to” in Item11 of List II of the Seventh Schedule clearly indicatesthat the legislation in respect of excluded matters cannotbe undertaken by the State Legislatures. In paragraph –23,the Court held as under: “Power of the State to legislate in respectof education including universities must to theextent to which it is entrusted to the UnionParliament, whether such power is exercised ornot, be deemed to be restricted. If such alegislation is covered by Items 63 to 66 even ifit otherwise falls within the larger field of‘education including universities’ power tolegislate on that subject must lie withParliament……Item 11 of List II and Item 66 ofList I must be harmoniously construed. The twoentries undoubtedly overlap: but to the extent ofoverlapping, the power conferred by Item 66 ListI must prevail over the power of the State underItem 11 of List II. It is manifest that theexcluded heads deal primarily with education ininstitutions of national or special importanceand institutions of higher education includingresearch, sciences, technology and vocationaltraining of labour.” The following observations in Paragraphs 24 and 25highlight the supremacy of legislation made by Parliamentwith reference to Entry 66:- “(24)….. The validity of the State legislation onuniversity education and as regards the educationin technical and scientific institutions notfalling within Entry 64 of List I would have tobe judged having regard to whether it impinges onthe field reserved fro the Union under Entry 66.In other words, the validity of State legislationwould depend upon whether it prejudicially https://hcservices.ecourts.gov.in/hcservices/ affects coordination and determination ofstandards, but not upon the existence of somedefinite Union legislation directed to achievethat purpose. If there be Union legislation inrespect of coordination and determination ofstandards, that would have paramountcy over theState law by virtue of the first part of Article254(1); even if that power be not exercised bythe Union Parliament the relevant legislativeentries being in the exclusive lists, a State lawtrenching upon the Union field would still beinvalid.(25)…… Item 66 is a legislative head and ininterpreting it, unless it is expressly or ofnecessity found conditioned by the words usedtherein, a narrow or restricted interpretationwill not be put upon the generality of the words.Power to legislate on a subject should normallybe held to extend to all ancillary or subsidiarymatters which can fairly and reasonably be saidto be comprehended in that subject. Again thereis nothing either in Item 66 or elsewhere in theConstitution which supports the submission thatthe expression ‘coordination’ must mean in thecontext in which it is used merely evaluation,coordination in its normal connotation meansharmonizing or bringing into proper relation inwhich all the thins coordinated participate in acommon pattern of action. The power tocoordinate, therefore, is not merely power toevaluate, it is a power to harmonise or securerelationship for concerted action. The powerconferred by Item 66 List I is not conditioned bythe existence of a state of emergency or unequalstandards calling for the exercise of the power”. 18. In Osmania University Teachers' Association vs.State of Andhra Pradesh, ((1987) 4 SCC 671) the Court heldas follows: “Para - 14. Entry 25 List III relating toeducation including technical education, medicaleducation and universities has been made subjectto the power of Parliament to legislate underEntries 63 to 66 of List I. Entry 66 List I andEntry 25 List III should, therefore, be readtogether. Entry 66 gives power to Union to seethat a required standard of higher education inthe country is maintained. The standard of HigherEducation including scientific and technicalshould not be lowered at the hands of any https://hcservices.ecourts.gov.in/hcservices/ particular State or States. Secondly, it is theexclusive responsibility of the CentralGovernment to co-ordinate and determine thestandards for higher education. That powerincludes the power to evaluate, harmonise andsecure proper relationship to any project ofnational importance. It is needless to state thatsuch a co-ordinate action in higher educationwith proper standards, is of paramount importanceto national progress. It is in this nationalinterest, the legislative filed in regard to'education' has been distributed between List Iand List III of the Seventh Schedule.Para - 15. The Parliament has exclusive power tolegislate with respect to matters included inList I. The State has no power at all in regardto such matters. If the State legislates on thesubject falling within List I that will be void,inoperative and unenforceable.” 19. The same question was also examined inconsiderable detail in State of T.N. Vs. AdhiyamanEducational and Research Institute, (1995) 4 SCC 104 andthe conclusions drawn were summarized in para –41 of theReport and sub-paras (i) and (ii) thereof are beingreproduced below:“ 41(i) The expression ‘coordination’used in Entry 66 of the Union List of the SeventhSchedule to the Constitution does not merely meanevaluation. It means harmonization with a view toforge a uniform pattern for a concerted actionaccording to a certain design, scheme or plan ofdevelopment. It, therefore, includes action notonly for removal of disparities in standards butalso for preventing the occurrence of suchdisparities. It would, therefore, also includepower to do all things which are necessary toprevent what would make ‘coordination’ eitherimpossible or difficult. This power is absolutean unconditional and in the absence of the validcompelling reasons, it must be given its fulleffect according to its plain and expressintention. (ii) To the extent that the Statelegislation is in conflict with the Centrallegislation though the former is purported tohave been made under Entry 25 of the ConcurrentList but in effect encroaches upon legislationincluding subordinate legislation made by theCentre under Entry 25 of the Concurrent List or https://hcservices.ecourts.gov.in/hcservices/ to give effect to Entry 66 of the Union List, itwould be void and inoperative.” 20. The interplay of Entry 66 List I and Entry 25 ListIII was again examined by a Constitution Bench of theSupreme Court in Preeti Srivastava (Dr.) Vs. State ofM.P., (1999) 7 SCC 120 in the context of lowering ofstandards by the State for admission to a postgraduatecourse in a medical college and it was held that the Statecannot while controlling education in the State impinge onstandards in institutions for higher education because thisis exclusively within the purview of the Union Government.While considering the question whether norms for admissionhave any connection with the standards of education andthat they are only covered by Entry 25 of List III, it wasobserved by the Supreme Court that any lowering of thenorms of admission does have an adverse effect on thestandards of education in the institutions of highereducation. The standard of education in an institutiondepends on various factors like (i) the caliber of teachingstaff; (ii) a proper syllabus designed to achieve a highlevel of education in a given span of time; (iii) thestudent-teacher ratio; (iv) equipment and laboratoryfacilities; (v) caliber of the students admitted; (vi)adequate accommodation in the institution; (vii) thestandard of examinations held including the manner in whichthe papers are set and examined; and (viii) the evaluationof practical examinations done. It was pointed out thateducation involves a continuous interaction between theteachers and the students. The base of teaching, the levelto which teaching can rise and the benefit which thestudents ultimately receive depends as much on the caliberof the students as on the caliber of the teachers and theavailability of adequate infrastructural facilities. 21. As already stated, the MCI and AICTE Regulations(quoted above) amount to delegated legislation, and arehence to be treated as part of the Statute. Once it isaccepted that the whole object of the Regulations is todetermine and coordinate the standard of higher educationthroughout the Country, to integrate its development and tomaintain certain standard in such education, it will haveto be held that such norms, standards and requirements etc.will have to be uniform throughout the Country. Uniformityfor the purpose of coordinated and integrated developmentof higher education in the Country necessarily implies suchminimum standard, fulfillment of which should entitle aninstitution and its alumni, titles, degrees andcertificates to recognition anywhere in the Country. 22. Thus, in Dr.Preeti Srivastava v. State of M.P.,(supra) (vide paragraph 35), the Constitution Bench of theSupreme Court observed: - https://hcservices.ecourts.gov.in/hcservices/ “ Both the Union as well as the Stateshave the power to legislate oneducation including medical education,subject, inter alia, to Entry 66 ofList I which deals with laying downstandards in institutions for highereducation or research and scientificand technical institutions as alsocoordination of such standards. AState, has, therefore, the right tocontrol education including medicaleducation so long as the field is notoccupied by any Union legislation.Secondly, the State cannot, whilecontrolling education in the State,impinge on standards in institutionsfor higher education. Because this isexclusive within the purview of theUnion Government. Therefore, whileprescribing the criteria for admissionto the institutions for highereducation including higher medicaleducation, the State cannot adverselyaffect the standards laid down by theUnion of India under Entry 66 List I.Secondly, while considering the caseson the subject it is also necessary toremember that from 1977, education,including, inter alia, medical anduniversity education, is now in theConcurrent List so that the Union canlegislate on admission, criteria also.If it does so, the State will not beable to legislate in this field, exceptas provided in Article 254.”In the same decision the Supreme Court furtherobserved (paragraph 52): -“ These regulations, therefore, arebinding and the States cannot, in theexercise of power under Entry 25 ofList III, make rules and regulationsframed by the Medical Council of Indiafor postgraduate medical education.”23. In Ravindra Kumar Rai vs. State of Maharashtra,AIR 1998 SC 1227, the Supreme Court observed at paragraph 6as follows:" We may at the outset point out thatinasmuch as there are three Boards inMaharashtra State which conduct thequalifying examination and inasmuch as https://hcservices.ecourts.gov.in/hcservices/ there are several universities, theState of Maharashtra would clearly fallunder sub-clause (2) of Regulation 5made by the Medical Council and notunder sub-clause (3). The contentionfor the State that candidates from CBSEBoard are small in number does notappeal to us. Inasmuch as there is nodispute that more than one Boardconducts the qualifying examination andthe Universities are more than one innumber, sub-clause (3) of Regulation 5,in our view, is not attracted. It isalso not possible for the State to saythat conducting a common entranceexamination will delay the admissionprocess or that it will be extremelydifficult to conduct the examination.In fact the statement in the counteraffidavit to the effect that the Statehas been conducting a commonexamination for 1,80,000 students atthe 10 + 2 level in the 7 divisionalboards would itself show that the Stateis capable of conducting a CommonEntrance Examination for admission tomedical colleges, even if the number ofstudents is large. We may also saythat in several States, Common EntranceExamination is being conducted evenbefore 1997 when these Regulations madeby the Medical Council came into force.In fact in some States, entranceexamination is conducted jointly forEngineering and Medical students also.We fail to see why the State ofMaharashtra should say that it will bean arduous task".In a recent judgment of this Courtin Shri Chander Chinar Bada AkharaUdasin Society vs. State of J & K, 1996(5) SCC 732: 1996 AIR SCW 3778, in thecontext of admission to MedicalColleges, and the need for a CommonEntrance Examination, this Courtobserved (p.738) (of SCC) ; (at p.3782of AIR) as follows:" It need not be pointed out that thepercentage of marks secured bydifferent applicants at different typeof examinations at the higher secondary https://hcservices.ecourts.gov.in/hcservices/ stage cannot be treated as uniform.Some of such examinations are conductedat the State level, others at thenational level including the IndianSchool Certificate examination. Thepercentage secured at differentexaminations is bound to vary accordingto standard applied by such examinationbodies, which is well known. As such acommon entrance examination has to beheld" (emphasis supplied).24. The mandatory nature of the CET was againemphasised by the Constitution Bench of the Supreme Courtin the case of Dr.Preeti Srivastava vs. State of M.P.,(supra) as follows:" A common entrance examination,therefore, provides a uniform criterionfor judging the merit of all candidateswho come from different universities.Obviously as soon as one concedes thatthere can be differing standards ofteaching and evaluation in differentuniversities, one cannot rule out thepossibility that the candidates whohave passed the MBBS examination from auniversity which is liberal inevaluating its students, would not,necessarily, have passed, had theyappeared in an examination where a morestrict evaluation is made. Similarly,candidates who have obtained very highmarks in the MBBS Examination whereevaluation is liberal, would have gotlesser marks had they appeared for theexamination of a university wherestricter standards were applied.Therefore, the purpose of such a commonentrance examination is not merely tograde candidates for selection. Thepurpose is also to evaluate allcandidates by a common yardstick. Onemust, therefore, also take into accountthe possibility that some of thecandidates who may have passed the MBBSExamination from more 'generous'universities may not qualify at theentrance examination where a better anduniform standard for judging all thecandidates from different universitiesis applied. In the interest ofselecting suitable candidates for https://hcservices.ecourts.gov.in/hcservices/ specialized education, it is necessarythat the common entrance examination isof a certain standard and qualifyingmarks are prescribed for passing thatexamination. This alone will balancethe competing equities of havingcompetent students for specializededucation and the need to provide forsome room for the backward even at thestage of specialized postgraduateeducation which is one step below thesuperspecialities."25. In view of the Regulations framed by the MCI andthe AICTE, it is clear that the field is occupied and theState Legislature has no competence to pass any Legislationunder Entry 25 List III.26. Mr.Mukul Rohatgi, learned Senior Counsel, learnedAdvocate General Mr.N.R.Chandran and learned AdditionalAdvocate General Mr.A.L.Somayaji however strenuouslysubmitted that the State Government is having enablingpower under Article 15(5) of the Constitution to pass theenactment in the occupied field dehors Central Legislationand it cannot be said that the State has no legalcompetence to enact the legislation. It is submitted thatArticle 15(5) which has been recently inserted byConstitution 93rd Amendment Act empowers the State to makeany special provision by law for the advancement of anysocially and educationally backward classes of citizensrelating to their admission to educational institutionsincluding private educational institutions whether aided orunaided by the State. It is submitted that the Act has beenmade in furtherance of Article 15(5) of the Constitutiononly to enable the students in rural areas who due to lackof infrastructure and financial resources are unable tofare well in the entrance test. Therefore, the Act is wellwithin the power of the State Government and it cannot besaid that the State Government has no legal competence toenact the legislation. In any event, according to thelearned counsel the objective of the State Act is to equatedifferent streams of school final education into onecategory by having one set of school final syllabus asbasis and make the students from the non-State Boards totake up Common Entrance Test on the syllabus of the TamilNadu State Board. Therefore, the selection procedure cannotbe said to be in violation of the Central Regulations. Asubmission is also made that the recent judgment of the 7Judge Bench of the Supreme Court in P.A.Inamdar vs. Stateof Maharashtra, ((2005) 6 SCC 537) dilutes the mandate ofCommon Entrance Test prescribed under the CentralRegulations by providing separate entrance test fordifferent colleges separately or jointly, and hence, all https://hcservices.ecourts.gov.in/hcservices/ the judgments prior to P.A.Inamdar Case on the issue ofCommon Entrance Test are redundant. For the same reason itis submitted that if there can be more than one CommonEntrance Tests, one for government college and other forprivate college, the State can also have a yardstickdispensing with Common Entrance Test for State Boardstudents and conducting Common Entrance Test for otherBoard students. 27. We are unable to accept the submissions of thelearned counsel. Article 15(5), which was enacted by theConstitution (Ninety-third Amendment), reads as follows: -“ 15. Prohibition of discrimination ongrounds of religion, race, caste, sexor place of birth”(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19shall prevent the State from making anyspecial provision, by law, for theadvancement of any socially andeducationally backward classes ofcitizens or for the Scheduled Castes orthe Scheduled Tribes in so far as suchspecial provisions relate to theiradmission to educational institutionsincluding private educationalinstitutions, whether aided or unaidedby the State, other than the minorityeducational institutions referred to inclause (1) of article 30. 28. Article 15(5) is identically worded as Article 15(4) with the only difference that Article 15(5) enables theState Government to make a special provision relating toadmission to educational institutions including privateeducational institutions whether aided or unaided by theState other than minority educational institutions referredto in clause (1) of Article 15. Thus, Article 15(5) enablesthe State Government to pass a law relating to reservationin admission in the private professional colleges, whichwas not available in Article 15(4) as impliedly held inP.A.Inamdar’s case. The avowed purpose of Article 15(5) isto make a special provision for the advancement of sociallyand educationally backward classes of citizens as well asScheduled Caste and Scheduled Tribes relating to theiradmissions to educational institutions, including privateeducational institutions. The language used in Article 15(5) by no stretch of imagination can be construed as asource of legislative competence for abolishing the CommonEntrance Test inconsistent with the Central Act. TheStatement of Objects and Reasons of the Act states that theState Government found that the Common Entrance Test wasburden some to majority of students who were forced to take https://hcservices.ecourts.gov.in/hcservices/ up two successive examinations and the majority of thestudents who are at tender age, should not be furtherburdened or their parents should bear financial burden anyfurther. No doubt it makes a passing reference to thestudents in the rural areas, but looking to the scheme ofthe Act, it is impossible to hold that the impugned Act isenacted to give effect to the policy underlying Article 15(5). The pith and substance of the State Act is to abolishCommon Entrance Test for the State board students and isnot to give effect to any policy under Article 15(5).29. In ASSAM SILLIMANITE LIMITED -VS- UNION OF INDIA(1992 SUPP. (1) SCC 692), the Supreme Court observed: -"28. The extent and scope of judicialreview of legislation where there is adeclaration under Article 31-C of theConstitution which enjoins that no lawcontaining a declaration that it is forgiving effect to such a policy shall becalled in question in any court on theplea that it does not give effect tosuch a policy has been considered inKesavananda Bharati -vs- State ofKerala ((1973) 4 SCC 225). On ananalysis of the majority judgmenttherein, Sabyasachi Mukharji, J. (as hethen was) observed in TinsukhiaElectric Supply Co.Ltd. -vs- State ofAssam (1989) 3 SCC 709) that thedeclaration in Article 31-C does notexclude the jurisdiction of the Courtto determine whether the law is forgiving effect to the policy of theState towards securing the principlesspecified in Articles 39(b) and (c).Mathew, J. had observed in KesavanandaBharati ((1973) 4 SCC 225) that inorder to decide whether a law giveseffect to the policy of the Statetowards securing the directiveprinciples specified in Article 39(b)or (c), a Court will have to examinethe pith and substance, the true natureand character of the law as also itsdesign and the subject matter dealtwith by it together with its object andscope. If a law passed ostensibly togive effect to the policy of the Stateis, in truth and substance, one foraccomplishing an unauthorised object,the Court would be entitled to tear theveil created by the declaration and https://hcservices.ecourts.gov.in/hcservices/ decide according to the real nature ofthe law." 30. There is absolutely no material produced by theState to show that the action of the Legislature to abolishCET to provide better opportunity to rural backward areaswas supported by any statistical study and considerationsgermane to the constitutional guarantee of equality. On theother hand, the statistical data produced by thepetitioners shows that the enactment would only benefit theurban matriculates, who under all situation will steal amarch over the rural matriculate students, as well asstudents from other boards. 31. In State of U.P v. Pradeep Tandon, 1975 (1) SCC267, the Supreme Court has clearly ruled that the ruralareas which form nearly 85% of the population of the Statecannot be treated as a homogenous class. In that case, theSupreme Court held that the reservation of rural areascannot be sustained on the ground that the rural areasrepresent socially and educationally backward classes ofcitizens. It is also pertinent to note that the Act has notbeen made applicable to private institutions, and the rulesframed under the Act contemplate only voluntary seatsharing arrangement with the private educationalinstitutions. We are, therefore, unable to sustain theargument that the Act was to give benefit to the Statepolicy under Article 15(5). 32. The submission that the impugned legislation is inconsonance with the Central Law as it seeks to achievecommonness among the candidates is totally misconceived andliable for rejection. Under the Central Regulations, in anyState having more than one university/board/examining bodya entrance examination is mandatory, whereas the Statelegislation while dispensing with the Common Entrance Testto the State Board students make it mandatory to thestudents of other Boards in the State of Tamil Nadu. Asstated earlier, by enacting the Central Regulations, theparliament has laid down an exhaustive code in respect ofthe standard and manner of admission and it isimpermissible for the State Legislature to legislate in theoccupied field. In Deep Chand vs. State of U.P. (AIR 1959SC 648) it was held that the repugnancy between twostatutes may be ascertained on the basis of the followingthree principles:- (i)Whether there is direct conflict between the twoprovisions;(ii)Whether parliament intended to lay down anexhaustive code in respect of the subject matterreplacing the Act of the State Legislature; and https://hcservices.ecourts.gov.in/hcservices/ (iii)Whether the law made by parliament and the lawmade by the State Legislature occupy the samefield. In the instant case, the State Legislation clearly impingesupon the filed occupied by the Central Law i.e., M.C.I.Regulations and A.I.C.T.E. Regulations. 33. We are also not impressed by the argument thatP.A.Inamdar’s Case dilutes the mandate of Common EntranceTest prescribed under the Central Regulations.P.A.Inamdar’s Case did not dilute the requirement of CommonEntrance Test, on the contrary, the question forconsideration of the Court was once private colleges arebrought out of the State power is it necessary to haveState Common Entrance Test for private colleges unless theyopt for the same. The Supreme Court has suggested CommonEntrance Test for all the private colleges in the country.The judgment did not strike down the existing CentralGovernment Legislations. It has only carved out the privatecolleges from the State conducted Common Entrance Testenabling private colleges to conduct a Common Entrance Testof their own until a proper legislation is made in thatbehalf for the private colleges. More over, in the presentcase, the question is not regarding having more than oneCommon Entrance Tests, one for State owned colleges and theother for private colleges. The issue which falls for ourconsideration in the present case is whether the StateBoard students who opt for admission to professionalcolleges should be exempted from Common Entrance Test.Paragraphs 136 and 137 of the P.A.Inamdar’s Case,reproduced below emphasises the need for Common EntranceTest."136. Whether minority or non-minorityinstitutions, there may be more than onesimilarly situated institutions impartingeducation in any one discipline, in any State.The same aspirant seeking admission to takeeducation in any one discipline of educationshall have to purchase admission forms fromseveral institutions and appear at severaladmission tests conducted at different places onthe same or different dates and there may be aclash of dates. If the same candidate is requiredto appear in several tests, he would be subjectedto unnecessary and avoidable expenditure andinconvenience. There is nothing wrong in anentrance test being held for one group ofinstitutions imparting same or similar education.Such institutions situated in one State or inmore than one State may join together and hold acommon entrance test or the State may itself orthrough an agency arrange for holding of such https://hcservices.ecourts.gov.in/hcservices/ test. Out of such common merit list thesuccessful candidates can be identified andchosen for being allotted to differentinstitutions depending on the courses of studyoffered, the number of seats, the kind ofminority to which the institution belongs andother relevant factors. Such an agency conductingthe common entrance test ("CET" for short) mustbe one enjoying utmost credibility and expertisein the matter. This would better ensure thefulfilment of twin objects of transparency andmerit. CET is necessary in the interest ofachieving the said objectives and also for savingthe student community from harassment andexploitation. Holding of such common entrancetest followed by centralised counselling or, inother words, single-window system regulatingadmissions does not cause any dent in the rightof minority unaided educational institutions toadmit students of their choice. Such choice canbe exercised from out of the list of successfulcandidates prepared at CET without altering theorder of merit inter se of the students so chosen.137. T.M.A.Pai Foundation -vs- State ofKarnataka, (2002) 8 SCC 481 has held thatminority unaided institutions can legitimatelyclaim unfettered fundamental right to choose thestudents to be allowed admission and theprocedure therefor subject to its being fair,transparent and non-exploitative. The sameprinciple applies to non-minority unaidedinstitutions. There may be a single institutionimparting a particular type of education which isnot being imparted by any other institution andhaving its own admission procedure fulfilling thetest of being fair, transparent and non-exploitative. All institutions imparting same orsimilar professional education can join togetherfor holding a common entrance test satisfying theabovesaid triple tests. The State can alsoprovide a procedure of holding a common entrancetest in the interest of securing fair and meritbased admissions and preventingmaladministration. The admission procedure soadopted by a private institution or group ofinstitutions, if it fails to satisfy all or anyof the triple tests, indicated hereinabove, canbe taken over by the State substituting its ownprocedure. The second question is answeredaccordingly." https://hcservices.ecourts.gov.in/hcservices/

34. Now the only question that remains to beconsidered is whether the impugned legislation violatesequality doctrine enshrined in Article 14 of theConstitution. As stated earlier, the only object of the Actis to dispense with the Common Entrance Test to State Boardstudents, while making it mandatory to other Boardstudents. The Act, thus, makes an invidious distinctionbetween State Board students and students of other Boards.The classification between the State Board students andother Board students and abolishing the Common EntranceTest for other Board students alone merely because otherBoard students are small in number is an unreasonableclassification having no nexus to the object to beachieved. As held in Ravindra Kumar Rai v. State ofMaharashtra (supra) smallness of category is not a relevantcriteria. By the impugned legislation unfair advantage isconferred on the urban matriculate students in so far asthey have to write only one examination in their ownsyllabus which they have studied for two years and the CBSEand ISC students have to write two examinations one, Plustwo public entrance examination, which has been renderedirrelevant by the impugned legislation and the other CommonEntrance Test in a new syllabus. It is wholly impermissiblefor the State to determine the inter se merits on the basisof two separate examinations, one the qualifyingexamination for the State Board students and the otherCommon Entrance Test for the non-Board students. During thecourse of hearing the possibility of conducting CommonQualifying Examination for the State board students as wellas CBSE students was explored. But we found that conductingof such examination is impracticable and unworkable, and inany event, even holding of such common examination wouldnot remove the vice of arbitrariness in as much as the CBSEstudents and ISC students would be required to appear forthe examination twice one for CBSE Board qualifyingexamination and again for State Board qualifyingexamination, whereas the State Board students would facethe qualifying examination only once. It is also pointedout by the learned counsel appearing for the petitioners,and in our opinion rightly, that the qualifying examinationfor Plus two is based solely on the syllabus contained inthe text books, whereas the Common Entrance Test is basedon both in syllabus and out of syllabus, and it isobjective. Under the circumstances, the conclusion isirresistible and that is the impugned act is arbitrary andviolates Article 14 of the Constitution.35. In the result, we hold that the State has no powerto enact Tamil Nadu Act 2 of 2006 and the Act is void,inoperative and unreasonable. The field is occupied by theCentral Legislation and the State has no legal competenceto enact the impugned Act, and it is also not saved byArticle 15(5) of the Constitution. The Act is also liable https://hcservices.ecourts.gov.in/hcservices/ to be struck down as violative of principle of equalityguaranteed by Article 14 of the Constitution. The writpetitions are accordingly allowed. No costs. Consequently,W.P.M.Ps are closed. 36. The State is hereby directed to start the processfor holding Common Entrance Test in accordance with the MCIand AICTE Regulations for the Academic Year 2006-2007 forall the Board students. 37. Learned Advocate General seeks leave to fileappeal to the Supreme Court. Leave is rejected.Vu/sm/pvSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Secretary to Govt. of Tamil NaduEducation Department, Fort Saint GerogeChennai 92. The Chairman, Selection CommitteeDirectorate of Medical Education,Kilpauk, Chennai 600 010.3. The Director,Directorate of Medical Education,Kilpauk, Chennai 600 025.+ Three copies to the Govt. Pleader sr no. 9000, 90001, 9002+ one cc to Mr. K. Balu, Advocate sr no. 9580+ one cc to Mr. R. Suresh Kumar, Advocate sr no. 9027+ one cc to Mr. Gladys Daniel, Advocate sr no. 8921+ one cc to Mr. M.T. Arunan, Advocate sr no. 9543NM KK (03.03.2006)W.P.Nos.3951, 4796 & 4826 of 2006