CASE NO.: Appeal (civil) 1626-1628 of 2004 PETITIONER: STATE OF TAMIL NADU AND ANR. RESPONDENT: S.V. BRATHEEP (MINOR) AND ORS. DATE OF JUDGMENT: 16/03/2004 BENCH: S. RAJENDRA BABU & DR. AR. LAKSHMANAN & G.P. MATHUR JUDGMENT:
JUDGMENT
2004(2) SCR 1218
The Judgment of the Court was delivered by
RAJENDRA BABU, J. Civil Appeals Nos. 1626-1628 of 2004 (@ S.L.P. (C) Nos.
20756-20758/2003 and Civil Appeals Nos. 1629-1631/2004 (@ S.L.P. Nos.
20901-20903/2003)
Leave granted in the special leave petitions.
In these matters, writ petitions were filed in the High Court of Madras
seeking for a writ or order or direction to quash G.O.Ms. Dated 29.6.2002
and 13.2.2003 issued by the Higher Education Department in so far as the
respondents were concerned and to direct the appellants and others to
consider their admission to engineering colleges without reference to the
minimum eligible marks prescribed by the appellants.
The learned Single Judge of the High Court, who examined the matter, held
that the prescription of qualifications or prescription of the minimum
eligible marks for SC/ST as mere pass, most backward at 50% average marks
in the related subjects, backward at 55% average marks in the related
subjects and other classes at 60% average marks in the related subjects,
would not be in conflict with the Regulations of AH India Council for
Technical Education [AICTE] and, therefore, dismissed the writ petitions.
On appeal, a Division Bench of the High Court held that there is a glaring
difference in the norms fixed by AICTE and the norms fixed by the State
Government, and struck down the same and issued the following directions:
“1. The admission of those students who had appeared for the TNPCEE’ 03 but
had not secured the prescribed minimum aggregate marks in their Higher
Secondary examinations would be regularised.
2. No action need be taken against those Engineering colleges for having
breached the norms of the State Government and no proceedings of
dissatisfaction need be started against them on that count alone. The State
Government shall, within three weeks from today, with notices to all the
Engineering colleges in the State start the process of locating the
students by giving such students an opportunity to vie for the seats in the
Engineering colleges. If any of such students have already been admitted,
as we have stated earlier, their admissions shall be regularised. However,
we make it clear that all the students who are going to be benefited by
this judgment must have appeared for the Tamil Nadu Professional Courses
Entrance Examinations’03 held by the State Government.
3. Since the learned counsel appearing for the Anna University pointed
out that admissions in this late juncture are likely to affect the
University attendance regulations, we also direct that the shortage in the
attendance of such students shall be compensated by holding special classes
on Saturdays, Sundays and other holidays. Learned counsel appearing on
behalf of the Engineering institutions have undertaken that teaching staff
who are engaged for holding such special classes shall be paid extra and
that no amount shall be collected by the institutions form the students.
4. The writ petitions filed by the individual students shall stand allowed
only if such students have taken part in the common entrance test Tamil
Nadu Professional Courses Entrance Examinations’03.
5. We make it clear that all these directions apply only for the academic
year 2003-04.”
Though this Court while entertaining these matters directed that status quo
should be maintained as on the date of the judgment in relation to
admission of students in engineering colleges, it is stated that several
students in question had been admitted who fulfilled the terms stated by
the Division Bench of the High Court and they have been allowed to take the
examinations also. In these circumstances, the appellant does not contest
their admissions and it is only for purposes of examination of the correct
position in law that the State and the University are pursuing these
matters. Therefore, that aspect of the matter need not detain us any
longer. We think, submission made on behalf of the parties is reasonable
and the admissions made so long as they conform to the norms issued by the
High Court should not be disturbed.
We shall now examine only the question posed before us as to whether the
norms prescribed by the State Government are contradictory to the norms
fixed by AICTE or are only in the nature of higher qualifications above the
minimum prescribed by AICTE for admission to the Engineering Colleges.
AICTE prescribed in their Guidelines for the relevant period as follows:
“1.1. Qualification for admission of General Category Students:
The minimum qualification for admission to degree programmes in Engineering
should be a pass in the 10+2 (Senior Secondary) Examination with a minimum
aggregate of 60 percent marks in Physics, Chemistry and Mathematics
obtained in a single sitting. The duration of degree programme in
Engineering will be 4 years after 12th standard. This will apply to cases
where admissions are based on the marks in the qualifying examination and
not on the basis of entrance tests………………”
“1.3. Entrance Tests
All States/Union territories (Uts) should conduct entrance tests in the
subjects of Physics, Chemistry and Mathematics at 12+level. The entrance
test should be common to all Engineering degree institutions in the
State/Uts. The minimum marks from eligibility for the entrance test need
not be prescribed in the case of degree courses and all students who have
passed the qualifying examination may be permitted to appear in the
entrance test. Only the merit ranking in the entrance test should be the
basis for admission to engineering degree programmes. Such tests should be
conducted by appropriate agencies set up for the purpose.”
While the Government provided for the basic qualification for eligibility
is as adverted to by us earlier. The High Court found that there are two
streams of admission of students as prescribed by AICTE, namely,
(i) Those who were admitted on the basis of the marks secured in the
qualifying examinations only; and
(ii) Those who are admitted on the basis of the marks secured in the
Common Entrance Test held by the State or the Union Territories.
The High Court is of the view that AICTE has contemplated two categories of
students seeking for admission as noted by us above and there is no other
category of students contemplated by the AICTE who are aspiring to apply
for engineering seat. Therefore, the norms fixed by the State is in a stark
contradiction of the norms fixed by the AICTE. To arrive at this
conclusion, the High Court very strongly relied upon the decision of this
Court in State of T.N. and Anr. v. Adhiyaman Educational & Research
Institute and Ors., [1995] 4 SCC 104.
As regards the scope of the Entries in the Constitution arising under Entry
66 of List I and Entry 25 of List III of the Seventh Schedule to the
Constitution was examined in great detail by a constitution Bench of this
Court in Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors., [1999] 7
SCC 120. After adverting to these two entries in the Seventh Schedule, this
Court stated as follows:
“Both the Union as well as the States have the power to legislate on
education including medical education, subject, inter alia, to Entry 66 of
List I which deals with laying down standards in institutions for higher
education or research and scientific and technical institutions as also
coordination of such standards. A State has, therefore, the right to
control education including medical education so long as the field is not
occupied by any Union legislation. Secondly, the State cannot, while
controlling education in the State, impinge on standards in institutions
for higher education. Because this is exclusively within the purview of the
Union Government. Therefore, while prescribing the criteria for admission
to the institutions for higher education including higher medical
education, the State cannot adversely affect the standards laid down by the
Union of India under Entry 66 of List I. Secondly, while considering the
cases on the subject it is also necessary to remember that from 1977,
education, including, inter alia, medical and university education, is now
in the Concurrent List so that the Union can legislate on admission
criteria also. If it does so, the State will not be able to legislate in
this field, except as provided in Article 254. It would not be correct to
say that the norms for admission have no connection with the standard of
education, or that the rules for admission are covered only by Entry 25 of
List III. Norms of admission can have a direct impact on the standards of
education. Of course, there can be rules for admission which are consistent
with or do not affect adversely the standards of education prescribed by
the Union in exercise of powers under Entry 66 of List I. For example, a
State may, for admission to the postgraduate medical courses, lay down
qualifications in addition to those prescribed under Entry 66 of List I.
This would be consistent with promoting higher standards for admission to
the higher educational courses. But any lowering of the norms laid down can
and does have an adverse effect on the standards of education in the
institutes of higher education………”[p-154]
Entry 25 of List III and Entry 66 of List I have td be read together and it
cannot be read in such a manner as to from an exclusivity in the matter of
admission but if certain prescription of standards have been made pursuant
to Entry 66 of List I, then those standards will prevail over the standards
fixed by the State in exercise of powers under Entry 25 of List III insofar
as they adversely affect the standards-laid down by the Union of India or
any other authority functioning under it. Therefore, what is to be seen in
the present case is whether the prescription of the standards made by the
State Government is in any way adverse to, or lower than, the standards
fixed by the AICTE. It is no doubt true that the AICTE prescribed two modes
of admission – One is merely dependent on the qualifying examination and
the other dependent upon the marks obtained at the Common Entrance Test.
The appellant in the present case prescribed the qualification of having
secured certain percentage of marks in the related subjects which is higher
than the minimum in the qualifying examination in order to be eligible for
admission. If higher minimum is prescribed by the State Government than
what had been prescribed by the AICTE, can it be said that it is in any
manner adverse to the standards fixed by the AICTE or reduces the standard
fixed by it? In our opinion, it does not. On the other hand, if we proceed
on the basis that the norms fixed by the AICTE would allow admission only
on the basis of the marks obtained in the qualifying examination the
additional test made applicable is the common entrance test by the State
Government. If we proceed to take the standard fixed by the AICTE to be the
common entrance test then the prescription made by the State Government of
having obtained certain marks higher than the minimum in the qualifying
examination in order to be eligible to participate in the common entrance
test is in addition to the common entrance test. In either event, the
streams proposed by the AICTE are not belittled in any manner. The manner
in which the High Court has proceeded is that what has been prescribed by
the AICTE is inexorable and that that minimum alone should be taken into
consideration and no other standard could be fixed even the higher as
stated by this Court in Dr. Preeti Srivastava’s case. It is no doubt true
as noticed by this Court in Adhiyaman’s case that there may be situations
when a large number of seats may fall vacant on account of the higher
standards fixed. The standards fixed should always be realistic which are
attainable and are within the reach of the candidates. It cannot be said
that the prescriptions by the State Government in addition to those of
AICTE in the present case are such which are not attainable or which are
not within the reach of the candidates who seek admission for engineering
colleges. It is not very high percentage of marks that has been prescribed
as minimum of 60% downwards, but definitely higher than the mere pass
marks. Excellence in higher education is always insisted upon by series of
decisions of this Court including Dr. Preeti Srivastava’s case. If higher
minimum marks have been prescribed, it would certainly add to the
excellence in the matter of admission of the students in higher education.
Argument advanced on behalf of the respondents is that the purpose of
fixing norms by the AICTE is to ensure uniformity with extended access of
educational opportunity and such norms should not be tinkered with by the
State in any manner. We are afraid, this argument ignores the view taken by
this Court in several decisions including Dr. Preeti Srivastav’s case that
the State can always fix a further qualification or additional
qualification to what has been prescribed by the AICTE and that proposition
is indisputable. The mere fact that there are vacancies in the colleges
would not be a matter, which would go into the question of fixing the
standard of education. Therefore, it is difficult to subscribe to the view
that once they are qualified under the criteria fixed by the AICTE they
should be admitted even if they fall short of the criteria prescribed by
the State. The scope of the relative entries in the Seventh Schedule to the
Constitution have to be understood in the manner as stated in the Dr.
Preeti Srivastava’s case and, therefore, we need not further elaborate in
this case or consider arguments to the contrary such as application of
occupied theory no power could be exercised under Entry 25 of List III as
they would not arise for consideration.
The argument advanced on behalf of the respondents that these matters are
indeed governed by the decision in Islamic Academy of Education and Anr. v.
State of Karnataka and Ors., [2003] 6 SCC 697, and T.M.A. Pai Foundation v.
State of Karnataka, [2002] 8 SCC 481. In fact this Court did not consider
the question that has arisen for our consideration in the present case but
was dealing with entirely different issue in relation to fee structure of
minority and non-minority educational institutions and whether private
unaided professional colleges are entitled to fill their seats to the full
extent by their own method of admission. That is not the issue before us at
all. Therefore, no reliance could be placed by the respondents on the
decisions either in TMA Pai Foundation or Islamic Academy case.
One other argument is further advanced before us that the criteria fixed by
the AICTE was to be adopted by the respective colleges and once such
prescription had been made it was not open to the Government to prescribe
further standards particularly when they had established the institutions
in exercise of their fundamental rights guaranteed under Article 19 of the
Constitution. However, we do not think this argument can be sustained in
any manner. Prescription of standards in education is always accepted to be
an appropriate exercise of power by the bodies recognising the colleges or
granting affiliation, like AICTE or the University. If in exercise of such
power the prescription had been made, it cannot be said that the whole
matter has been foreclosed.
In this view of the matter, we think these appeals deserve to be allowed in
part and the order of the High Court stands modified to the extent of
stating that it is permissible for the State Government to prescribe higher
qualifications for purposes of admission to the engineering colleges than
what had been prescribed by the AICTE and what has been prescribed by the
State and considered by us is not contrary to the same but is only
complementary or supplementary to it.
It is made clear that if any admission has been made in any of the colleges
of students who fulfil the directions issued by the High Court, their
admissions shall be taken to have been made validly.
The appeals are partly allowed accordingly
S.L.P [Cl Nos. 24043/2003. 23-24/2004, 1038-1039/2004 and 21966/2003
The High Court considered the case of the students in these colleges who
did not appear in the common entrance test but appeared for the private
entrance tests conducted by the respective engineering colleges and they
could be admitted to the engineering colleges on the basis of their
performance in such private entrance test. The mere fact that Anna
University allowed all the engineering colleges to conduct entrance test by
the concerned colleges cannot militate against the prescription of
standards of excellence in education both by the AICTE and Department of
Higher Education. The High Court rejected the same on the basis that the
AICTE had already formulated the policy and that policy had to be strictly
followed by the concerned colleges as long as students had not fulfilled
those minimum qualifications prescribed by the AICTE but only passed in a
private entrance test would not be qualified for admission to the
engineering colleges is perfectly in order and does not call for
interference.
Hence, the special leave petitions stand rejected.