ORDER
E. Padmanabhan, J.
1. The petitioner, Minor C. Aparna, has prayed for a declaration declaring that in the absence of specific provisions to conduct separate special counseling for candidates appeared in the instant/supplementary examination, that special counseling is arbitrary, illegal and unconstitutional and the same is declared to be ab initio void for the engineering admission 2002 and that the special counseling should be conducted including the petitioner and allow her to opt for the course and colleges as per rank and turn and render justice.
2. The minor’s father and natural guardian, Mr. C.S. Chandarasekaran appearing in person made his submissions.
3. According to the petitioner, the petitioner has passed +2 examination in March 2002 with computer science as major and she has scored 51% in aggregate in the primary subjects such as Maths, Physics and Chemistry. The petitioner has also appeared in Tamil Nadu Professional Courses Entrance examination conducted by Anna University in April 2002. The petitioner scored 61.96% aggregate in Maths and Physical Sciences of the said examination. The petitioner claims that she belong to backward community.
4. For admission to engineering colleges through single window system of admission, a candidate should necessarily appear for entrance examination conducted by Anna University. According to the rules, the marks scored in +2 examination is added with the entrance examination marks and the ranks are accorded in Maths and Physical Sciences in the order of merit. The candidate belonging to General/Backward Class should have secured a minimum of 55% marks in aggregate in the said subjects, namely, Maths, Physics and Chemistry in +2 examination. The petitioner herein is ineligible as she has not secured 55% in the three subjects put together. Therefore, the petitioner did not apply for counseling, though she had secured reasonably good marks in the entrance examination.
5. A special counseling was proposed to be conducted from 2nd August 2002 onwards to fill up the seats, which remain unfilled in the engineering colleges and candidates, who have not applied previously for admission in the single window system are eligible to apply. But the vacancies could be offered to the candidates, who appeared in the special supplementary examination held earlier in the month of June-July.
6. However, the petitioner could not appear in the so called instant examination as she has passed all the subjects in the first attempt and she also could not apply for improvement examinations. Thus the petitioner has been deprived of an opportunity to apply for counseling although she has scored good marks in the entrance examination. While a candidate, who had failed in the earlier +2 examination and appeared for a second time in the instant examination is eligible for opting for the special counseling, provided the candidate possess the minimum qualifying marks. Such a scheme is patently irregular and per se illegal in the eyes of law. A candidate, who had passed in the second attempt could neither be ranked higher than the candidate who passed in the first attempt irrespective of the marks scored. The Professional course entrance examination conducted in the month of April 2002 is only for the candidates, who appeared for the +2 examinations in March 2002. The instant examination is only advancement of an examination normally to be held in October 2002.
7. A candidate, who had not appeared in the Tamil Nadu Professional Course Entrance Examination, is not eligible to apply for counseling as per the prevailing rules. Therefore, a candidate, who passed the +2 instant supplementary examination is not eligible to opt for the counseling. The grievance of the petitioner being that she should also have been allowed to participate in the special counseling and that she may be allowed to exercise her option to join the course and colleges available to her as per the total marks and the ranks obtained in the relevant examination. Hence, the petitioner has prayed for a writ of declaration.
8. The 2nd respondent filed a counter. According to the 2nd respondent, the State Government framed a policy to enable +2 students to write improvement examination in respect of those subjects in which they want to score higher marks. From the academic year 2001-2002 the scheme was given up as a matter of policy of the State. The said decision was challenged and the same has been upheld by this court. There is no improvement examination in respect of specific subjects. The State Government, as a welfare measure, decided to conduct instant examination for those students, who have failed in respect of those subjects alone so as to not to waste one year. The contention of the petitioner that had she been permitted to write the instant examination for improving her marks she could have secured more marks and might be eligible for admission.
9. As per the policy, a student who wants to improve his marks has to write the examination for all the subjects. The petitioner’s contention is contrary to the policy of the State Government and there are no merits. The petitioner, who has not secured minimum eligibility marks cannot put forth the plea of discrimination and if she is to be admitted, the same would amount to discrimination. Further, the single window system of admission including primary as well as supplementary counseling has already been completed as on 4.9.2002. The last date for admission has lapsed and seats in respective engineering colleges was completed as on 14.8.2002. Therefore, it is not legally permissible for admission to the petitioner. The relief of declaration declaring the special and supplementary reconciling is arbitrary, illegal and unconstitutional and, hence it is not sustainable. The petitioner is not entitled to seek the directions prayed for nor such a relief could be sought for nor such a petition is maintainable. The relief sought for by the petitioner is mutually contradictory.
10. It is also pointed out, assuming without admitting the petitioners’ prayer that special and supplementary reconciling is bad in law, then there can be no question of conducting the special and supplementary counseling once again and permit the petitioner to apply and participate in the same and to allot her a seat. The petitioner is not having the minimum eligibility marks to seek admission and, therefore, the question of permitting her to attend the single window system of admission is not untenable. The averments set out in para-2 of the affidavit are denied. It is incorrect to contend that there is no minimum marks prescribed for qualifying in the entrance examination. The marks scored by the petitioner is calculated in the relevant subjects in the +2 examination and adding that marks secured with the marks secured in the entrance examination gives the qualifying marks, based on which the allotment of seats and colleges is made under the single window system of admission. Therefore, the question of prescribing the minimum marks in the entrance examination does not arise.
11. As per the eligibility criteria prescribed, a backward class candidate in order to be eligible should have secured 55% marks in +2 examination in the relevant subjects. The petitioner has just secured 52% marks and, therefore, she is ineligible to apply for engineering admission. Hence, the marks secured by the petitioner in the entrance examination pales into insignificance.
12. A supplementary reconciling was conducted for the purpose of filling up the unfilled minority seats surrendered by the minority institutions as well as unfilled seats in the special reservation category. The earlier system of improving the marks has been scrapped and the validity of such scrapping or abolition has been upheld by this Court. From this year onwards, students who want to improve their marks will have to write all the subjects once again instead of writing the subjects of their choice alone.
13. This year the State Government conducted instant examination for those students who have failed in one or two subjects in +2 examination for the academic year 2001-2002 as a special case. It is further stated that only those students who had failed are eligible to apply for the said supplementary instant examination. In terms of the scheme, the petitioner having passed all the subjects cannot claim equal treatment along with those who have failed in one or more subjects and claim that she should be permitted to appear for the three subjects so as to enable her to improve her marks and secure admission and such a contention is devoid of merits. Those who have failed to pass in one or more subject in the examination alone had been enabled to take up the instant examination so that they could seek admission in the engineering course. The scheme has been framed in respect of candidates who have failed. The discrimination raised by the petitioner has no substance.
14. The writ petitioner filed a rejoinder contending that no credence can be given to an instant examination conducted. The new realisation of marks in the relevant subjects scored in +2 examination and adding it with the marks scored in the entrance examination designed by are only to justify incorrect procedure being followed. The respondents should be directed to fix the minimum marks at least in the future in entrance examination. It is further stated that a substantial number of seats are available in the engineering college even after the second counseling and, therefore, it is for the respondents to consider the relevancy of prescribing the minimum marks as 55% in this background. The instant supplemental examination and counseling are totally unjustified, illegal, arbitrary, unconstitutional and void ab initio.
15. A reply to the rejoinder has been filed by the 2nd respondent. The cut off date for the eligibility criteria is 1.7.2002 as was printed in the prospectus during March 2002 itself, but the G.O. for instant examination was issued only on 11.4.2002. Such instant examination is only supplemental in nature and the marks scored by the candidates in the instant examination would revert back to the date of the main examination and those students would easily satisfy the eligibility criteria as on 1.7.2002. The averment that number of seats are available cannot be a ground to admit a candidate who has not even scored the minimum marks in the +2 examination.
16. The State Government made a policy decision to conduct instant examination by G.O. Ms. No. 47 dated 11.4.2002 for those students, who had failed in one or more subjects to write examination immediately so that they need not waste one year. Such results were published in or about 31.5.2002. Merely because an instant examination was conducted it cannot be stated that the same is illegal and that the candidates who had performed well in the instant supplementary examination should not be considered at all nor should be called for second counseling is untenable.
17. The only point that arise for consideration in this writ petition is :-
“Whether the petitioner is entitled to seek the relief of declaration prayed for ? To what relief, if any ?”
18. On the facts of the case, the petitioner is not entitled to seek the relief of declaration. It has to be pointed out that the petitioner is not at all eligible for admission to engineering course as she has scored less than 55% marks in the subject and, therefore, she cannot claim that she should be called for supplemental counseling. Such a contention is a misconception and devoid of merits. It may be that candidates who have failed in +2 examination conducted during March-April have been enabled to appear in the instant supplemental examination, but such candidates being a class by themselves, the petitioner cannot put forward the plea of discrimination. The petitioner having passed the examinations, could have appeared for improvement examination provided if she appears in all the subjects and then only the marks in the concerned subject will be considered for the purpose of eligibility qualification. It may be that number of candidates have failed, but under the scheme, those who have failed were enabled to appear in the instant supplemental examination. The object of the said instant supplemental examination is to enable those who have failed to forthwith improve themselves in the particular subjects and in particular those who have scored one or two marks less then the minimum required. That is not so in respect of the petitioner herein. Those who have failed and those who are enabled to appear or take up the instant supplemental examination are a class by themselves and they have been considered for admission on the basis of marks scored by them in the instant examination as well as entrance examination already conducted and they were invited for the second counseling. There is no illegality in the same.
19. It may be that the petitioner may have fared well if she had appeared in respect of those subjects she had not scored better marks, yet that cannot be a reason to interfere with the scheme framed by the State Government with a view to rescue those who have failed in the main examination but enabled them to appear in the instant supplemental examination for improvement. There is no discrimination or illegality in conducting a second counseling or in conducting an instant supplemental examination. The petitioner cannot put forth the plea of discrimination or arbitrariness.
20. All that the petitioner mainly contended being that, those who have passed have been disabled from taking up the instant supplemental examination, but those who have failed had been enabled to take up the instant supplemental examination besides they have been enabled to secure admission by securing 55% marks they could automatically get an admission provided if they have appeared in the engineering entrance examination. Though there is some force and substance in the contention advanced, unless and until the scheme is declared illegal or discriminatory or violative of Article 14 or any other constitutional provision, the unintended peculiar circumstances in which the petitioner has been placed cannot be a ground to interfere with the selection of candidates. It may be that if the petitioner had failed, she may have had the opportunity of taking up the instant supplemental examination if she satisfy the other conditions. But that is not so factually. The petitioner has passed all the subjects in the main examination and, therefore, she cannot claim that she should be permitted to appear in the instant supplemental examination. The scheme is in respect of those who have failed by one or more marks in respect of the particular subjects alone. The scheme cannot be held to be arbitrary nor it is violative of unconstitutional provision and the petitioner appearing in person is unable to point out any illegality or infraction of Article 14 or any other constitutional provision.
21. In the foregoing circumstances, this Court finds that there are no merits in this writ petition and the relief prayed for also being mutually contradictory cannot be granted. Further an anomalous situation has occurred for the first time, a special circumstance, and it is not an unintended benefit, which has been conferred by treating a particular set of students, who have failed by one/two marks. In any event, it cannot be said that the scheme is violative of Article 14 or any other constitutional provision. The petitioner is not entitled to the relief prayed for in this writ petition.
22. In the result, the writ petition fails and the same is dismissed. No costs. Consequently, connected W.P.M.P. is also dismissed.
23. Before parting with the case, the anomalous situation pointed out by the petitioner deserves to be taken into consideration by the State Government at least from the next year so that apart from those who have failed in the particular subjects and those who have not secured eligibility marks may also be permitted to take up the instant supplemental examination, if the scheme is to be continued any longer. The State Government, this Court is of the view, will consider this to avoid such complaints when those who have failed are given a better treatment and those who have passed with less than the minimum eligibility marks are being denied of valuable opportunity and treated differently.