IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07/07/2006
CORAM
THE HON'BLE MRS JUSTICE PRABHA SRIDEVAN
W.P. No.18228 of 2006
and
W.P. No.20963 of 2006
and
W.P. No.18377 of 2006
and
W.P. No.18378 of 2006
and
W.P. No.20977 of 2006
and
M.Ps.1 of 2006 in all petitions
and
M.P.2 of 2006
in
W.P.18228 of 06
In W.P.No.18228 of 2006
M. Bhuvanesh ... Petitioner
-Vs-
1. The Government of Tamil Nadu
Rep. by its Secretary
Department of Medical Education
Fort St. George, Chennai 600 009
2. The Selection Committee
Rep. by its Secretary
Directorate of Medical Education
162, Periyar EVR High Road
Kilpauk, Chennai 600 010
3. The Director of Medical Education
162, Periyar EVR High Road
Kilpauk, Chennai 600 010 ... Respondents
Prayer
Petition filed under Article 226 of the Constitution of India praying
for a writ of certiorarified mandamus as stated therein.
For petitioner : Mr. Kandavadivel Doraisamy
For respondents: Mr. G. Sankaran
Government Pleader
:COMMON ORDER
In these writ petitions the grievance of the petitioners is that the
improvement marks obtained by them will not be taken into account for the
purpose of admission to medical colleges since the prospectus for the MBBS BDS
course shows that,
4(i) Candidates should have passed in all the subjects of the
qualifying examination of the Higher Secondary Certificate Examination (
Academic) conducted by the Tamil Nadu State Board in one and the same attempt
in the following group of subjects with the minimum eligible marks.
(a) Physics, Chemistry, Botany and Zoology.
(or)
(b) Physics, Chemistry, Biology with any other subjects.
...
Note: i) The Marks obtained in the qualifying examinations in the
relevant science subjects in the first appearance only will be taken into
consideration for the allotment of seats of candidates and the improvement
marks in +2 examination of any year will not be considered.”
According to them, when they wrote the improvement examination their
original marks stood erased and therefore, now they will not have the benefit
of either the original mark or the improvement mark and they would stand at a
disadvantage. It was further submitted that for engineering college students
the improvement mark is taken into account and there cannot be any
discrimination between students applying for Engineering Courses and students
applying for medical courses and also if the improvement MARK IS TAKEN INTO
ACCOUNT FOR ENGINEERING course, then EACH STUDENT WILL HAVE TWO DIFFERENT
aggregate OF MARKS, ONE FOR THE PURPOSE OF ADMISSION IN THE ENGINEERING
COLLEGE AND OTHER FOR THE PURPOSE OF ADMISSION IN THE MEDICAL COLLEGE. This
would be TOTALLY IRRATIONAL. IT WAS ALSO SUBMITTED THAT These STUDENTS HAD
GENUINELY believed that they can TAKE ADVANTAGE OF THE IMPROVEMENT MARKS AND
THEY HAD THEREFORE, WASTED AN ACADEMIC YEAR IN THE HOPE THAT with THE
IMPROVEMENT MARKS THEY would be able to SECURE ADMISSION IN THE MEDICAL
COURSE. This IS THE Sum AND SUBSTANCE OF THE SUBMISSIONS ADVANCED BY THE
LEARNED SENIOR COUNSEL FOR THE PETITIONER.
2. Mrs. Nalini Chidambaram, learned Senior Counsel appearing for
the petitioners in W.P.Nos.20963,18377, 18378 of 2006 and Mr. Kandavadivel
Doraisamy, learned counsel appearing for the petitioner in W.P.No.18228 of
2006 and Mr. S. Packiaraj, learned counsel appearing for the petitioner in
W.P.No.20977 of 2006 would rely on the Judgment reported in S. Mohamed Razeen
Vs. The Govt. of Tamil Nadu (2005 (3) CTC 44 9) to support their case.
3. The learned Special Government Pleader appearing on behalf of
the respondents would submit that they are not entitled to any relief and that
in fact, the same judgment which the petitioners rely on, clearly shows that
for the academic year 2006-07, the improvement marks cannot be taken into
account. The learned Special Government Pleader also submitted that when the
Prospectus makes it clear that what is the criterion for admission to medical
course, it is not for the petitioners to attack the same. The fact that There
is a difference between the admission to medical college and admission to
engineering college, will not make a difference to the conclusion since the
seats for engineering college are many more than the seats that are available
for a medical college. It was also submitted that the facility to allow
students to write the improvement examination itself is granted an indulgence
and not as a matter of right.
4. The question of improvement marks has come up for
consideration in several matters decided by this Court. In Poovizhi V.
Government of Tamil Nadu (AIR 2002 Madras 235), the attack was that, earlier
the candidates could appear in one or more subject for the improvement
examination and improve their marks and the subsequent changes in the policy
requiring the students to cover all the subjects was attacked as arbitrary.
The First Bench of this Court held that the framing of education policy is an
action within the realm of the government and the court has got a limited role
to play in exercise of its power of judicial review. However, the Division
Bench set at naught the impugned G.O., insofar as its retrospective operation
is concerned and made it clear that it would come into effect for the
improvement examination from September 2002 onwards.
5. Again, there was another batch of writ petitions, which was
decided by the First Bench on 02-08-2004. Here, the tussle was between
freshers and improvement candidates. Here again, the First bench refused to
interfere with the policy on the ground that as long as the Scheme of
improvement is available to all and is available to the one who is opting, if
he is not permitted for admission by way of competition along with freshers
then hs entire effort will go waste. In this decision, however, the
concession given for seniority in age was made applicable only inter se
freshers or inter se improvement candidates and not between a fresher and an
improvement candidate.
6. In the judgment reported in 2005 (3) CTC 449(cited supra) G.O.
Ms.No.184, Higher Education, J.2 Department dated 09-06-2005, which abolish
the common entrance test and discontinued the improvement examination for the
academic year 2005-2006 came up for consideration. The First Bench of this
Court while quashing the said G.O. insofar as relates to the abolition of the
Common Entrance Test, upheld it insofar as it related to the abolition of
improvement examination, on the ground that it is a policy decision and that
there was no violation of any statute or constitutional provision by
cancelling improvement test nor was there any shocking arbitrariness in the
Wednesbury sense. But the observations of the Division bench which the
petitioners want to rely on is as follows:
“However, since in this year the improvement examination has
already been held and the common entrance test has also been held, it would
not be proper to cancel the improvement examination for this year, but for the
academic year 2006-2007 and onwards the improvement test need not be held by
the authorities, unless they choose to restore it.”
7. According to them, this benefit should accrue to those who had
appeared for the improvement examination in 2005 and it was open to the
authority to hold or not to hold the improvement test for the academic year
2006-2007 onwards. It was submitted that the fact that the Authorities had
the liberty to decide to hold or not the improvement examination for the
academic year 2006-2007 would not mean that the right accrued to the
petitioners by virtue of having appeared for the improvement examination in
2005 would be taken away since the Division Bench had held that it would not
be proper to cancel the improvement examination.
8. On the other hand, the same paragraph is referred to by the
State to show that this observation would not enure to the benefit of the
students for ever. It was only for that academic year and not for subsequent
years and the petitioners cannot permanently take advantage of the improvement
examination in the year 2005 or in any of the years prior to that. One of the
petitioners before us has taken the examination in 2004. All the students
want to derive the benefit of improvement examination marks for the academic
year 2006-2007. A Judgment will have to be read as a whole. It would be
dangerous to extract some paragraphs and try to decide the reasoning or the
ratio laid down by the Court. The G.O. Clearly states,
-… The practice of allowing students to take improvement
examination thereby improving their +2 marks for admission in the Professional
Course be discontinued from the academic year 2005-2006.
8. The Government further direct that the marks of the
students who have taken the improvement examination during 2005-2006 will not
be taken into account for consideration for admission to professional courses.
If they choose to seek admission to professional courses during 2005-2006, the
marks obtained by them in their first attempt will alone be taken into
account.”
9. In Paragraph Nos.6 and 7 of the judgment the case of the
petitioners is set out.
“6. lt is alleged that the common entrance examination for admission
to MBBS course for the academic year 2005-2006 was held on 23-04-20 05 and the
result of the same was declared on 12-05-2005. The result of the plus 2
(class 12) State Board examinations was declared on 17 -05-2005.
7. The petitioner’s grievance is that having been permitted to take
the improvement as well as common entrance examination for admission to MBBS
course for the academic year 2005-2006, the State has no right to change the
procedure for admission/selection, particularly after the same had been
announed for the academic year 2005-2006, and the petitioner had acted on that
announcement and had appeared in the entrance and improvement test after a
great deal of preparation involving time and money.”
10. After considering the rival contentions of the counsel and the
various decisions relied on, the Division Bench HELD,
76. We are not inclined to interfere with that part of the
impugned G.O. Which abolishes the improvement test, as the decision is a
policy decision which does not conflict with any statutory rule or regulation
nor can it be said to be shockingly arbitrary in the Wednesbury sense.
However, we are of the opinion that the said abolition should only apply from
next year.
77. In Poovizhi V. Government of Tamil Nadu, AIR 2002 Mad
235 = 200 2 (1) MLJ 590, it was observed that a decision can be enforced for
the next year. In view of the aforesaid decision of this Court, we hold that
so far as the improvement test is concerned, the abolition is valid but it
will come into effect from the academic year 2006-2007 onwards.”
THEREFORE, WHAT FOLLOWS IS THAT the PRACTICE OF ALLOWING THE STUDENTS
TO TAKE THE IMPROVEMENT EXAMINATION FOR ADMISSION TO Professional COURSE WAS
discontinued FROM THE ACADEMIC YEAR 2005-2006. THIS WAS upheld BY THE
DIVISION BENCH, protecting the RIGHTS OF THE STUDENTS ” for this year” ALONE.
THEREFORE, NO StUDENT WIlL BE entitled TO RELY ON THE IMPROVEMENT MARKS FOR
ADMISSION TO Professional COURSES FROM THE ACADEMIC YEAR 2006-2007 ONWARDS.
THIS IS THE ONLY logical interpretation of THE JUDGMENT AND FURTHER CLAUSE (8)
OF THE G.O., which DECLARES THAT THE MARKS OBTAINED BY THEM IN THE +2
examination IN THE FIRST ATTEMPT ALONE WOULD BE TAKEN INTO ACCOUNT makes it
clear. The prospectus for the MBBS and BDS course is in consonance with the
above G.O. It is not open to the students to claim that the marks obtained by
them in the improvement examination of the year 2005 must be counted for the
admission for the year 2006-2007in the face of the decision of the First Bench
and Paragraph No.8 of the G.O. which has been upheld.
11. As regards the claim of discrimination between engineering
students and Medical students, reliance was placed on Nithiyan P. &S.P.
Prasanna Vs. State of TamilNadu (1994 Madras 624) where the fixing of age for
MBBS was attacked as arbitrary since it was not so stipulated for the other
courses. This attack was rejected by the Division Bench as follows:
“10. We are not able to agree with the contention of the learned
counsel that for other professional courses, the minimum age is not prescribed
as 17years. Every professional course is a different and independent couse
and as such all Professional courses, viz. Medicine, Engineering, Agriculture
etc. cannot be treated as one and the same. Students entering the medical
college constitute two different classes so that the prescription of age limit
for M.B.B.S. Course alone, in our view, is not in violation of Art.14 of the
Constitution of India.”
12. There can be various reasons why the Government chooses to
include the improvement marks for Engineering students and not for Medical
students. One such reasons given by the learned Government Pleader is that
there are numerous seats available in Engineering colleges, but the seats in
Medical Colleges are limited. We should also take note of the fact that only
few students who have taken the improvement test only seem to have come to
this Court. The others have understood the judgment of this Court as well as
the G.O. to mean that they are not entitled to take the benefit of the
improved marks from the academic year 2006-2007 onwards. Their understanding
of the judgment and the G.O. is perfectly correct and if we were to grant an
indulgence to these few petitioners, it would result in injustice. In any
event, the scheme of improvement marks framed by the Government is only a
matter of indulgence and no student could claim that he is Entitled to have
improvement examination conducted every year.
13. I am making a slight detour with regard to the effect of these
marks on our students. Students come to the Court claiming that they have a
right to take the improvement test, there are students who oppose it, students
want retotalling or valuation. Why? Because their future hinges upon
addition of a decimal point in their marks. They feel that their world will
come to an end if they do not join the particular course of their choice.
There can be no doubt that acute mental pain is caused to those tender minds,
and some even choose to end their lives, not because they have failed but
because eventhough they have passed they have lost, the seat of this choice by
a few decimal points or a few marks. In this context, I would like to extract
the following passages from the Column Point of View by Mr. Bhaskar Ghose
called “Determining excellence” in the Frontline issue dated 30th June, 2006.
“The frenzied attempts to get into the colleges perceived to
be the best for their chosen couses translate finally into the marks that the
student has the best of four, as youngsters know only too well. Here even
decimal points count; a student who has 0.5 per cent less than the ‘cut-off’
marks has no chance whatsoever of getting in. It is as if he has failed. And
only because his average in four subjects was 0.5 per cent less than that of
some others, even though it is, say, 85 per cent.
…Are we – that is, we as a society, we as people who try to
think rationally – then telling our young school students that what matters is
not how well you do, or how well you know your subject, but whether some other
students get just 0.5 per cent more than they do?
There is, surely, something wrong here. … There are many who end
their lives because they have failed, in terms of marks, but one is referring
here to those who have done well by all standards and yet choose to die.
.. it is essential that a close look be taken at the issue in
its entirety, at the way in which we evaluate the intelligence and knowledge
that our young have acquired.
… How are they to work out a system that is fair, how can they
ensure that they admit those who have done not just well, but better than
others?
… While respecting the problem they have to face every year, and
seeing some degree of logic in the solution they have devised to bring some
order to the process of admittance, one has to admit that the solution is not
quite as valid as teachers and principals would like to say it is. It is too
facile, and, more dangerously, not really a valid assessment of the worth of
those students being taken in and and those being turned away.
… Just how is a child’s knowledge of, say, geography, rated to be
61.5 per cent and not 60 per cent? If the answer is that the figure is the
total of the marks awarded for individual answers, then which answer could
have been so finely graded as to come up with an overall figure that is so
ludicrous as a measure of a child’s knowledge?
… Do any of the worthies in our examining bodies really think that
comprehension can be measured in fractions? And if it cannot be, why are they
imposing such system on the young?
There has been talk from time to time of doing away with examinations,
traumatising and, yes, cruel system will continue. Bright young children will
be confronted by the stony decimal ponts that tell them that no matter how
intelligent they are, or how much they have learned, they are adjudged
failures in their own eyes. That, really, is the terrible truth; we have
taught our young to believe in these systems so completely that it is they who
consider themselves failures when they are up against these absurd decimal
points and cutoff marks.”
One feels anguish looking at the long queues of young ones standing as
litigants. I earnestly hope that the people in power work out a policy, not
in kneejerk reaction to something that is happening now, or because it is
politically expedient, but a well-thought-out farsighted policy which will
have the well-being of our country’s future citizens at the top priority.
This will be in tune with Article 39(F) of our Constitution which reads as
follows:
“that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and material
abandonment.”
14. The learned Special Government Pleader submitted that if the
petitioners make a request that they are willing to give the mark sheet with
the original marks of the students in those subjects which they had obtained
in their first attempt. This alone is material for admission into MBBS and
BDS courses as seen from the extract of the prospectus supra.
15. For these reasons, the writ petitions fail and are dismissed
with a direction to the Director of Examination to issue mark sheets as per
the marks obtained by the students in their first attempt, if they make a
request. If the students have given their improvement marks in their
application, they shall be permitted to carry out the necessary amendments in
their application as soon as they receive the mark sheets bearing the marks
obtained by them in their first attempt. The application submitted may not be
rejected merely on the score of this error in the application. The respondent
shall not reject any of the applications of these petitioners only on the
ground of delay since they are not responsible for this delay.
16. However, there will be no order as to costs. The connected
Miscellaneous Petitions also stands dismissed.
glp
To
1. The Government of Tamil Nadu
Rep. by its Secretary
Department of Medical Education
Fort St. George, Chennai 600 009
2. The Selection Committee
Rep. by its Secretary
Directorate of Medical Education
162, Periyar EVR High Road
Kilpauk, Chennai 600 010
3. The Director of Medical Education
162, Periyar EVR High Road
Kilpauk, Chennai 600 010
4. Mr. G. Sankaran, Government Pleader