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Madras High Court
Mary Neena Dcunha vs State Of Tamil Nadu And Ors. on 10 November, 2000
Author: P Sathasivam
Bench: P Sathasivam


ORDER

P. Sathasivam, J.

1. The petitioner has prayed for quashing of the Government Order in G.O. Ms. No. 186 Health and Family Welfare dated 26-3-1996 and the letter of the second respondent University dated 6-7-1999 and consequentially direct the first and second respondents to recognise the Vocational

Higher Secondary Examination conducted by the Government of Kerala at Plus II level as eligible for admission into the B.D.S., and other courses in various institutions affiliated to 2nd respondent University.

2. The case of the petitioner is briefly stated hereunder :– According to her, she has passed the Vocational Higher Secondary Examination conducted by the Board of Vocational Higher Secondary Examinations of the Government of Kerala with Food Processing Technology as the vocational subject. The Department of Vocational Higher Secondary Education, Government of Kerala is conducting two year Vocational course in 45 disciplines at the Higher Secondary level and there are as many as 321 institutions in the State of Kerala conducting Vocational Higher Secondary Course. The course comprise of –

Part I . . English and General Foundation Course;

Part II . . Vocational subjects (Theory and Practical)

Part III . . Optional subjects (Physics, Chemistry and Maths;)

(Physics, Chemistry and Biology; etc.)

Parts I and II are compulsory and Part III is optional and those students who desire to go for Degree Courses or Professional courses may choose Part III and on passing of all the parts, the students will be awarded Vocational Higher Secondary certificate which will be valid for higher studies too. The certificate obtained after studying Parts I, II and III will be equivalent to Pre-Degree of the University of Kerala, Calicut and Mahatma Gandhi and many Universities outside Kerala have also recognised these courses as equivalent to Plus II certificates. The petitioner opted for physics. Chemistry and Biology Group which is a Medical Group subjects, during her Vocational Higher Secondary Examination course and has passed the said course. She was able to secure a seat in B.D.S., first year under the Management quota in the fourth respondent College. At the time of joining the B.D.S., course, the petitioner was informed that she was eligible to be admitted to the first year B.D.S. course under the management quota in the light of the eligibility norms prescribed by the Dental Council of India which is the highest regulatory authority in the matter of coordination and determination of standards in

the higher education. As per the norms laid down by the Dental Council of India, one should have passed the two years Intermediate or equivalent courses thereof, with science subjects viz. Physics, Chemistry and Biology from a recognised Indian University or Pre University/ Intermediate Board, or B.Sc., (Part I) Examination of an Indian University as laid down by the University Grants Commission. The candidates should have secured not less than 50% marks on the aggregate in English and science subjects put together at the qualifying examination or competitive entrance examination as the case may be. The petitioner having secured the eligibility marks in the subjects and being eligible as per the norms fixed by Dental Council of India, got herself admitted in the fourth respondent College under the Management quota and has now completed the first year of the course.

3. It is further stated that notwithstanding the above position, the first and second respondents have now declared the petitioner as being ineligible to be registered with the second respondent University as she had passed the Plus II in Vocational Stream relying upon G.O. Ms. No. 186. Health and Family Welfare Department dated 26-3-1996. It is stated that the prescription as contained in the said Government Order cannot be put against the person like the petitioner, who had undergone the vocational course with Physics, Chemistry and Biology subjects in Kerala as per the norms prescribed by NCERT.

4. Second respondent has filed a counter affidavit disputing various averments made by the petitioner. It runs as follows :– The petitioner has not obtained eligibility certificate from the 2nd respondent University in the first instance i.e., before admission to Vinayaka Missions Sankarachariyar Dental College, Salem and she is not a student of affiliated college of the 2nd respondent University at all as her name has not been registered through a registration application. The eligibility criteria for admission to B.D.S., course in Tamil Nadu is Plus 2 in Tamil Nadu with Physics, Chemistry, Botony, English and any other language or with the minimum 5 subjects of English, Physics, Chemistry, Botany and Zoology. The criteria to be read along with qualification for admission (i.e.) they should have obtained not less than 50% marks on aggregate in Physics,

Chemistry and Biology (Botany/Zoology). In the case of candidates from other States, the qualification obtained in pre-degree level should be equivalent to + 2 of Tamil Nadu. The petitioner herein who studied vocational stream in Kerala State with subjects English, Vocational subjects. Physics, Chemistry and Biology is not eligible for admission to B.D.S., course in Tamil Nadu as per the Regulation of the 2nd respondent University. With regard to vocational course conducted by the Government of Kerala, it is stated that the vocational Education is designed to prepare skilled work force in middle level in one or more group of occupations, trade or job after matriculation at + 2 stage of education. The objective of course is to enhance individual employability to provide an alternative for those passing higher education without particular interest or purpose. It is a distinct stream intended to prepare students for identified occupations. The 2nd respondent University by their letter dated 6-10-1999, returned her certificates in original informing the Registrar of the fourth respondent college that she was not eligible for admission to B.D.S course, replying the Regulations of the 2nd respondent and G.O. Ms. No. 186. Health and Family Welfare Department dated 26-3-1996.

5. In the light of the above pleadings, I have heard the learned senior counsel for the petitioner, learned senior counsel for the 2nd respondent, and learned Government Pleader for first respondent as well as the learned counsel for 4th respondent.

6. Mr. G. Subramanian, learned senior counsel for the petitioner has raised the following contentions :–

(i) the decision of the respondents 1 and 2 that the petitioner is not eligible to be registered with the second respondent in the B.D.S. course is arbitrary and unreasonable;

(ii) The Dental Council of India is the supreme body under the Dentists Act and as per the norms prescribed by the Dental Council of India, the petitioner is entitled and eligible for admission into the First year B.D.S., course in the fourth respondent college.

(iii) the impugned Government Order is liable to be quashed in so far as does not recognise vocational higher secondary examination conducted by the Government of

Kerala, since it goes against the norms prescribed by the Dental Council of India. On the other hand, Mr. R. Viduthalai, learned Government Pleader appearing for the first respondent and Mr. R. Krishnamoorthy, learned senior counsel for the second respondent University, would contend that it is the State Government which has power to fix norms in addition to the norms prescribed by Dental Council of India. They also contended that inasmuch as the petitioner has not satisfied the requirement of minimum qualification prescribed by the State Government for admission to B.D.S., course, they are fully justified in passing the impugned orders. They further contended that in view of the provisions of the Tamil Nadu Dr. M.G.R. Medical University Chennai, Act 1987, the Government is competent to prescribe higher qualification than the one prescribed by the Dental Council of India and in view of the fact that the petitioner does not satisfy the minimum qualification, the respondents 1 and 2 cannot be blamed for their action. Mr. Satish Parasaran, learned counsel appearing for the fourth respondent college, would state that they were under the bona fide impression admitted the petitioner under Management quota for B.D.S., course; hence they cannot be blamed.

7. The writ petition is filed by a student namely, the petitioner who had been admitted in the fourth respondent college in the B.D.S. course for the academic year 1998-99. According to her, she has passed the vocational Higher Secondary examination conducted by the Board of Vocational Higher Secondary Examinations of the Government of Kerala with Food Processing Technology as the vocational subject. I have already referred to the subjects covered in the vocational course. It is her case that the certificate obtained after studying Parts I, II and 111 will be equivalent to Pre-Degree of the University of Kerala, Calicut and Mahatma Gandhi and many Universities outside Kerala have also recognised these courses as equivalent to plus II certificates. Though it is stated that the Universities in Tamil Nadu have also approved the vocational Higher Secondary course of Kerala as being equivalent to Pre-degree course or courses eligible for admission into Professional courses like B.D.S., the second respondent in their counter affidavit have specifically stated that the vocational Higher Secondary Examinations

of Government of Kerala is not a eligible qualification for admission to B.D.S. Degree course. The eligibility criteria for admission to B.D.S., course in Tamil Nadu is plus 2 in Tamil Nadu with Physics, Chemistry and Botany, English and any other language or with minimum 5 subjects of English, Physics, Chemistry, Botany and Zoology. It is also clear from the prospectus that along with the said qualification for admission, the candidates should have obtained not less than 50 per cent marks on aggregate in Physics, Chemistry and Biology. It is made clear that in the case of candidates from other States, the qualification obtained in Pre-degree level should be equivalent to plus 2 of Tamil Nadu.

8. Mr. G. Subramanian, learned senior counsel for the petitioner, would contend that petitioner had satisfied the norms laid down by the Dental Council of India (in short “DCI”), which is the supreme body under the Dentists Act of 1948. As per the norms laid down by the DCI, one should have passed the two years Intermediate or equivalent courses thereof, with Science subjects viz., Physics, Chemistry and Biology from a recognised Indian University or Pre-University/Intermediate Board, or B.Sc. (Part I) Examination of an Indian University as laid down by the University Grants Commission. Further, the candidates should have secured not less than 50 per cent marks on the aggregate in English and science subjects put together at the qualifying examination or competitive entrance examination as the case may be. It is the case of the petitioner that she secured the eligibility marks in the subjects and being eligible as per the norms prescribed by the DCI, got herself admitted in the 4th respondent college under the Management quota and on the date of filing of the writ petition, she has completed the first year of the course. It is also very much emphasised that from the certificate issued by Mahatma Gandhi University of Kerala dated 28-7-1998 it is clear that the vocational Higher Secondary Examination of Government of Kerala is equivalent to Pre-degree of Mahatma Gandhi University, Kottayam, Kerala State and those who have passed this examination are eligible for admission to higher studies. Mr. G. Subramaniam, learned senior counsel has also emphasised that the Director of Vocational Higher Secondary Education has certified that the syllabus prescribed for Vocational Higher Secondary Course in Kerala vocational Stream is based on NCERT pattern and is equivalent to plus 2 course and such certificate holder with pass in Parts I. II and III are eligible for higher studies and public service. In such circumstances, based on G.O. Ms. No. 186 Health and Family Welfare Department dated 26-3-1996 declaring the petitioner as ineligible the registered with the 2nd respondent cannot be sustained. I am unable to accept the said contention for the following reasons.

9. It is clear from the particulars furnished in the affidavit that the petitioner had joined the fourth respondent college and at the time of joining the B.D.S., course, she was informed that she was eligible to be admitted for the first year B.D.S., course which means that the fourth respondent college had admitted the petitioner without an eligible certificate required to be produced. The 2nd respondent has specifically stated in their counter affidavit that petitioner has not obtained the eligibility certificate from them in the instance that is before admission into the 4th respondent college and she is not a student of affiliated college of the 2nd respondent University as her name has not been registered through a registration application; therefore, the respondents 1 and 2 are right in contending that the admission itself is irregular.

10. The fourth respondent college wrote a letter to the 2nd respondent only on 20-5-1999 seeking for registration of the petitioner as a candidate which was rejected by the 2nd respondent University in their impugned order dated 6-7-1999 stating that as per the order of the Government in G.O.Ms. No. 186 Health and Family Welfare dated 26-3-1996, candidates with Higher Secondary certificates of Vocational stream and P.U.C., are not eligible for admission into B.D.S., course.

11. In G.O.Ms. No. 186-Health and Family Welfare Department dated 26-3-1996, the minimum qualification for eligibility for M.B.B.Sc.,/ B.D.S../B. Pharmacy/B.Sc. (Nursing) B.P.T., courses have been prescribed. Among the other conditions mentioned therein, the last clause is relevant for our case, which runs as follows :–

“Higher Secondary Certificate Vocational Stream candidates and P.U.C. candidates

are not eligible for admission to M.B.B.S.,/ B.D.S.,/B.Pharmacy/B.Sc. (Nursing) B.P.T., courses.”

Accordingly, the petitioner who had undergone vocational course is not eligible for admission to B.D.S., course and this is clear from the impugned Government Order.

12. No doubt, as per Sub-sections (3) and (4) of Section 10 of the Dentists (Act 16 of 1948), the competent authority to prescribe qualification is the Dental Council of India. It is contended on the side of the petitioner that in the light of the subjects undertaken by her in the Vocational course, namely, Physics, Chemistry and Biology with the syllabus as prescribed by NCERT, that the Dental Council of India is the highest regulatory authority in the matter of coordination and determination of standards and that the petitioner had duly satisfied the said norms, the further condition prescribed by the State Government cannot be sustained. Mr. G. Subramaniam has very much relied on a decision of the Apex Court in Medical Council of India v. State of Karnataka, . No doubt, in the said decision, their Lordships have held that it is the Medical Council/Dental Council which can prescribe the number of students to be admitted in medical courses/Dental courses in a medical college or institution. A reading of the entire decision shows that it is for the Central Government which alone can direct increase in the number of admissions on the recommendation of the Medical Council and that the State Government have no authority to allow increase in the number of admissions in the Medical Colleges in the State. In this case, we are not concerned with the increase in the number of admissions in the Medical Colleges. By relying on another decision of the Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji, , learned senior counsel for the petitioner would contend that inasmuch as the petitioner satisfies the norms prescribed by Dental Council of India, in the order to render substantial justice, the petitioner may be allowed to continue her course in the 4th respondent College. This contention also cannot be accepted. The Supreme Court, while considering an application made by the State Government for condonation of delay, has expressed that Courts should adopt liberal approach and only in that context, Their

Lordships have made such an observation. The observation is as follows :–

“Para 3 (sub-para 4). When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right tn injustice being done because of a non-deliberate delay.

(5) XXXXXXXX

(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ‘State’ which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the ‘State’ is the applicant praying for condonation of delay.

There is no question to showing any sympathy when the petitioner does not possess required qualification for admission in B.D.S., course as prescribed by respondents 1 and 2.

13. There is no dispute that petitioner is a candidate from outside State and from a different University. It is also not disputed that the petitioner as well as the 4th respondent college are aware that the certificate should be evaluated as against equivalent qualification for its admission.

14. With regard to the power of the State Government in selection and admission of candidates, learned senior counsel appearing for the University has very much relied on Section 35-A of The Tamil Nadu Dr. M.G.R. Medical University Chennai, Act, 1987. Section 35-A of the Act states that the State Government shall be competent authority to select and admit candidates to a course of study or training in the Government Colleges and institutions and to a course of study or training in private colleges and institutions to which the Act applies. Section 35 (1) says that no person shall be

admitted to a course of study or training in a college or University laboratory or an approved institute to appear for any examination held by the University for conferring any degree, diploma or other academic distinction unless he,–

(a) has passed the qualifying examination prescribed there or by the University; and

(b) fulfils such other condition as may be prescribed by the regulations.

Sub-section (3) of Section 35 states that the question whether such candidate has undergone the equivalent course of study or training shall be decided by the Standing Academic Board with reference to the syllabus, the course contents and the period of study or training. I have already stated that the second respondent University had not recognised the Vocational stream of Higher Secondary examination for (to be) eligible for admission to medical courses. Even the students of Tamil Nadu doing their vocational courses are not eligible for admission. In such a circumstance, even though it is stated that the subjects taught in the vocational courses in the Kerala State are different, in the light of the specific bar, those certificates cannot be treated as certificates equivalent to the Higher Secondary course certificates of Tamil Nadu. The petitioner had taken optional subjects under Part III in the vocational stream. Though it is stated that she had taken Physics, Chemistry and Biology under Part III, it is not clear as to whether the petitioner had taken Part III in both the years of Higher Secondary course and the nature of examination taken in the first year as well as in the second year course. In view of the stand of the petitioner that her vocational course is equivalent to Higher secondary course, P. Shanmugam, J., while dismissing W.M.P. No. 22589 of 1999 in this writ petition dated 6-10-1999, has observed that it is for the Standing Academic Board to decide about the equivalents of the course of study with reference to the syllabus, the course content and the period of study. Pursuant to the said observation and direction, the Registrar of the second respondent University has filed an additional counter affidavit stating that the matter was placed before the eligibility committee of the University constituted for the purpose of determination of the equivalency of the course. It is further stated that the meeting of the

eligibility committee was held on 15-2-2000 at 1.00 A.M. at the University premises under the Chairmanship of Dr. R. Radhakrishnan, Additional Professor of Plastic Surgery, Kilpauk Medical College with 3, other members. It is further seen from the additional counter affidavit that the eligibility committee after an elaborate analysis and after considering various aspects of the course of study undergone by the petitioner with reference to the syllabus, course contents and period of study, unanimously decided that the vocational Higher Secondary course of the Kerala and the Higher Secondary academic course of Tamil Nadu are not equivalent. It is further stated that the decision of the eligibility Committee was placed before the Standing Academic Board and the said Board in its meeting held on 17-2-2000 has resolved that the vocational Higher Secondary course of Kerala and the Higher Secondary course of Tamil Nadu are not equivalent with reference to the syllabus and the contents of the course. Again the resolution of the Standing Academic Board was placed before the Governing Council in its meeting held on 25-2-2000 and the resolution was also taken note of by the Governing Council. It is clear that the certificates of the petitioner was evaluated by the Eligibility Committee and the report of the said Committee was approved by the Standing Academic Board as well as Governing Council. It is clear that the competent authority of the second respondent University after analysing the various aspects, has taken a decision that vocational Higher Secondary course of Kerala is not Higher Secondary academic course of Tamil Nadu and hence the petitioner is not eligible to be admitted in the B.D.S. course of the 4th respondent college affiliated to the second respondent University. The admission of the petitioner in the B.D.S., course in the fourth respondent college is against the admission norms and the conditions prescribed by the State Government, which is the competent authority to prescribe the qualifications for admission to B.D.s., course. Here, it is relevant to refer that though it is vehemently stated that the State Government has no role or power to prescribe qualifications, the learned Government Pleader appearing for the first respondent has brought to my notice that in addition to the power conferred on the State Government under Section 35-A of the Tamil

Nadu Dr. M.G.R., Medical University Chennai, Act, 1987, the decisions of the Hon’ble Supreme Court in Dr. Preeti Srivastava v. State of M.P., . Para 39 of the former decision is an answer to the question raised by the learned senior counsel for the petitioner. Para 39 reads as under :–

“39. The respondents have emphasised the observation that admission has to be made by those who are in control of the college. But, the question is, on what basis? Admissions must be made on a basis which is consistent with the standards laid down by a statute or regulation framed by the Central Government in the exercise of its powers under Entry 66 List I. At times, in some of the judgments, the words “eligible” and “qualification” have been used interchangeably, and in some cases a distinction has been made between the two words -“eligibility” connoting the minimum criteria for selection that may be laid down by the University Act or any Central statute, while “qualifications” connoting the additional norms laid down by the college or by the State. In every case the minimum standards as laid down by the Central statute or under it, have to be complied with by the State while making admission. It may, in addition, lay down other additional norms for admission or regulate admission in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.”

In the light of the specific provisions in the Act, namely, Ss. 35 and 35-A as well as the law laid down by the Apex Court in the decision referred to above , I hold that the State Government is competent to prescribe higher norms and qualifications in addition to the minimum qualification prescribed by the Dental Council of India; accordingly I am unable to accept the contentions raised by the learned senior counsel for the petitioner. I have already referred to the fact that the petitioner has failed to obtain eligibility certificate and failed to register her name with the second respondent University before seeking admission to the B.D.S., course. The Standing Academic Board of the 2nd respondent University in exercise of powers conferred under Section 44 of the Dr. M.G.R. Medical University, Chennai, Act, 1987 has framed

Regulations for the Bachelor of Dental Surgery Degree course for the University. As per Regulation 3, candidates who have passed any qualifying examination other than the Higher Secondary course examination conducted by the Government of Tamil Nadu have to obtain an eligibility certificate from the University by remitting the prescribed fees along with the application form before seeking admission to any one of the affiliated Dental Institutions. Likewise, as per Regulation 4, a candidate admitted to the course in any of the affiliated colleges shall register with the 2nd respondent University by remitting the prescribed fees along with the application form for registration duly filled in and forwarded to the University through the Head of the Institution within the stipulated date. It is clear from the counter affidavit of the 2nd respondent that petitioner has not obtained eligibility certificate from the University before admission to the 4th respondent college and her name has not been registered through an application for registration. Further, as stated earlier, the evaluation by the Eligibility Committee and the subsequent approval by the Standing Academic Board as well as the Governing Council of the 2nd respondent University shows that the vocational Higher Secondary course of Kerala is not equivalent to the Higher Secondary Course of Tamil Nadu and hence the petitioner is not eligible to be admitted to the B.D.S., Course of the second respondent University. The admission of the petitioner in the first year B.D.S., course by the 4th respondent college is against the admission norms and conditions prescribed by the State Government, which is the competent authority for prescribing qualifications for admission to B.D.S, course.

15. Learned counsel appearing for the fourth respondent has submitted that under bona fide impression and on the basis of certificates, mark-sheet etc., produced by the petitioner, they admitted her in the first year B.D.S., course under management quota and that they were justified in their action. The said contention cannot be accepted for the very same reason mentioned above. It is the responsibility of the fourth respondent college to verify whether the petitioner was eligible for admission to B.D.S., course even under management quota. I am satisfied that the fourth respondent college has not

taken care to verify the eligibility criteria of the petitioner and admitted her without proper verification. The fourth respondent college ought to have insisted the eligibility certificate from the petitioner even at the first instance i.e., before admission to the first year B.D.S., course; hence I reject the contra argument made by the learned counsel for the fourth respondent.

16. It is also brought to my notice an earlier order of this Court in Writ’ Petition No. 6615 of 1997 dated 24-10-1997, which was dismissed on similar ground. In that case, petitioner joined in B.Sc., (Nursing) course under management quota. There again, since the petitioner was not having required qualification, the very same University namely, Dr. M.G.R. Medical University did not permit the petitioner therein to sit for the examination. After considering similar contentions as well as the provisions of the Act and Regulations, S.S. Subramani, J., has held that “the duty cast on her was not properly exercised and she did not make any enquiry before she thought of being admitted or before paying the fees.” The said decision is directly applicable to our case. Before ascertaining whether the petitioner is eligible, the college ought to have ascertained whether on the basis of the qualification obtained by her she was eligible for admission. It is clear that she has not properly exercised her duty and did not make proper enquiry before being admitted or before paying the fees to the 4th respondent college. Though there is no information regarding the details of actual payment of fees, it is stated that petitioner had paid fees for two years to the 4th respondent college. In the light of my conclusion, it is but proper for the fourth respondent college to return the entire fees received from the petitioner.

17. In the light of what is stated above, I do not find any merit in the claim made by the petitioner; consequently the writ petition fails and the same is dismissed. No costs. The fourth respondent college is directed to return the entire fees received by them to the petitioner within a period of two weeks from the date of receipt of a copy of this order. Consequently W.M.P. No. 7998 of 2000 is closed.


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