{"id":132073,"date":"2006-07-07T00:00:00","date_gmt":"2006-07-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-bhuvanesh-vs-the-government-of-tamil-nadu-on-7-july-2006"},"modified":"2018-01-21T06:23:17","modified_gmt":"2018-01-21T00:53:17","slug":"m-bhuvanesh-vs-the-government-of-tamil-nadu-on-7-july-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-bhuvanesh-vs-the-government-of-tamil-nadu-on-7-july-2006","title":{"rendered":"M. Bhuvanesh vs The Government Of Tamil Nadu on 7 July, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
M. Bhuvanesh vs The Government Of Tamil Nadu on 7 July, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 07\/07\/2006  \n\nCORAM   \n\nTHE HON'BLE MRS JUSTICE PRABHA SRIDEVAN           \n\nW.P. No.18228 of 2006  \n and\n W.P. No.20963 of 2006 \n and\n W.P. No.18377 of 2006 \n and\n W.P. No.18378 of 2006 \n and\n W.P. No.20977 of 2006 \n and\n M.Ps.1 of 2006 in all petitions\n and\n M.P.2 of 2006\n in\n W.P.18228 of 06 \n\nIn W.P.No.18228 of 2006 \n\nM. Bhuvanesh                           ... Petitioner\n\n-Vs-\n\n1. The Government of Tamil Nadu \n    Rep. by its Secretary\n    Department of Medical Education\n    Fort St. George, Chennai  600 009\n\n2.  The Selection Committee \n    Rep. by its Secretary\n    Directorate of Medical Education\n    162, Periyar EVR High Road\n    Kilpauk, Chennai  600 010\n\n3.  The Director of Medical Education\n    162, Periyar EVR High Road\n    Kilpauk, Chennai  600 010           ... Respondents\n\nPrayer\n\n        Petition  filed under Article 226 of the Constitution of India praying\nfor a writ of certiorarified mandamus as stated therein.\n\nFor petitioner :  Mr.  Kandavadivel Doraisamy\n\nFor respondents:  Mr.  G.  Sankaran\n                   Government Pleader\n\n:COMMON ORDER      \n\n        In these writ petitions the grievance of the petitioners is  that  the\nimprovement  marks  obtained  by  them  will not be taken into account for the\npurpose of admission to medical colleges since the prospectus for the MBBS BDS  \ncourse shows that,\n\n        4(i) Candidates  should  have  passed  in  all  the  subjects  of  the\nqualifying  examination  of  the  Higher  Secondary  Certificate Examination (\nAcademic) conducted by the Tamil Nadu State Board in one and the same  attempt  \nin the following group of subjects with the minimum eligible marks.\n\n        (a) Physics, Chemistry, Botany and Zoology.\n                                (or)\n        (b) Physics, Chemistry, Biology with any other subjects.\n        ...\n<\/pre>\n
        Note:   i)  The  Marks  obtained in the qualifying examinations in the
\nrelevant science subjects in the first appearance  only  will  be  taken  into
\nconsideration  for  the  allotment  of seats of candidates and the improvement
\nmarks in +2 examination of any year will not be considered.”\n<\/p>\n
        According to them, when they wrote the improvement  examination  their
\noriginal  marks stood erased and therefore, now they will not have the benefit
\nof either the original mark or the improvement mark and they would stand at  a
\ndisadvantage.   It was further submitted that for engineering college students
\nthe  improvement  mark  is  taken  into  account  and  there  cannot  be   any
\ndiscrimination  between students applying for Engineering Courses and students
\napplying for medical courses and also if the improvement MARK  IS  TAKEN  INTO
\nACCOUNT  FOR  ENGINEERING  course,  then  EACH STUDENT WILL HAVE TWO DIFFERENT
\naggregate OF MARKS, ONE FOR  THE  PURPOSE  OF  ADMISSION  IN  THE  ENGINEERING
\nCOLLEGE AND  OTHER  FOR THE PURPOSE OF ADMISSION IN THE MEDICAL COLLEGE.  This
\nwould be TOTALLY IRRATIONAL.  IT WAS ALSO SUBMITTED THAT  These  STUDENTS  HAD
\nGENUINELY  believed  that they can TAKE ADVANTAGE OF THE IMPROVEMENT MARKS AND
\nTHEY HAD THEREFORE, WASTED  AN  ACADEMIC  YEAR  IN  THE  HOPE  THAT  with  THE
\nIMPROVEMENT  MARKS  THEY  would  be  able  to  SECURE ADMISSION IN THE MEDICAL
\nCOURSE.  This IS THE Sum AND SUBSTANCE OF  THE  SUBMISSIONS  ADVANCED  BY  THE
\nLEARNED SENIOR COUNSEL FOR THE PETITIONER.\n<\/p>\n
        2.      Mrs.  Nalini Chidambaram, learned Senior Counsel appearing for
\nthe petitioners  in  W.P.Nos.20963,18377,  18378 of 2006 and Mr.  Kandavadivel
\nDoraisamy, learned counsel appearing for the  petitioner  in  W.P.No.18228  of
\n2006 and Mr.    S.  Packiaraj, learned counsel appearing for the petitioner in
\nW.P.No.20977 of 2006 would rely on the Judgment reported in S.  Mohamed Razeen
\nVs.  The Govt.  of Tamil Nadu (2005 (3) CTC 44 9) to support their case.\n<\/p>\n
        3.      The learned Special Government Pleader appearing on behalf  of
\nthe respondents would submit that they are not entitled to any relief and that
\nin  fact,  the same judgment which the petitioners rely on, clearly shows that
\nfor the academic year 2006-07, the improvement  marks  cannot  be  taken  into
\naccount.   The learned Special Government Pleader also submitted that when the
\nProspectus makes it clear that what is the criterion for admission to  medical
\ncourse, it is not for the petitioners to attack the same.  The fact that There
\nis  a  difference  between  the  admission to medical college and admission to
\nengineering college, will not make a difference to the  conclusion  since  the
\nseats  for engineering college are many more than the seats that are available
\nfor a medical college.  It was also  submitted  that  the  facility  to  allow
\nstudents  to write the improvement examination itself is granted an indulgence
\nand not as a matter of right.\n<\/p>\n
        4.      The  question  of  improvement   marks   has   come   up   for
\nconsideration in  several  matters  decided  by  this  Court.   In Poovizhi V.
\nGovernment of Tamil Nadu (AIR<\/a> 2002 Madras 235), the attack was  that,  earlier
\nthe  candidates  could  appear  in  one  or  more  subject for the improvement
\nexamination and improve their marks and the subsequent changes in  the  policy
\nrequiring  the  students  to cover all the subjects was attacked as arbitrary.
\nThe First Bench of this Court held that the framing of education policy is  an
\naction within the realm of the government and the court has got a limited role
\nto play  in  exercise  of its power of judicial review.  However, the Division
\nBench set at naught the impugned G.O., insofar as its retrospective  operation
\nis  concerned  and  made  it  clear  that  it  would  come into effect for the
\nimprovement examination from September 2002 onwards.\n<\/p>\n
        5.      Again, there was another batch of writ  petitions,  which  was
\ndecided by  the  First  Bench  on  02-08-2004.    Here, the tussle was between
\nfreshers and improvement candidates.  Here again, the First bench  refused  to
\ninterfere  with  the  policy  on  the  ground  that  as  long as the Scheme of
\nimprovement is available to all and is available to the one who is opting,  if
\nhe  is  not  permitted for admission by way of competition along with freshers
\nthen hs entire  effort  will  go  waste.    In  this  decision,  however,  the
\nconcession  given  for  seniority  in  age  was  made applicable only inter se
\nfreshers or inter se improvement candidates and not between a fresher  and  an
\nimprovement candidate.\n<\/p>\n
        6.      In the judgment reported in 2005 (3) CTC 449(cited supra) G.O.
\nMs.No.184,  Higher  Education,  J.2 Department dated 09-06-2005, which abolish
\nthe common entrance test and discontinued the improvement examination for  the
\nacademic year  2005-2006  came  up for consideration.  The First Bench of this
\nCourt while quashing the said G.O.  insofar as relates to the abolition of the
\nCommon Entrance Test, upheld it insofar as it  related  to  the  abolition  of
\nimprovement  examination,  on the ground that it is a policy decision and that
\nthere  was  no  violation  of  any  statute  or  constitutional  provision  by
\ncancelling  improvement  test  nor was there any shocking arbitrariness in the
\nWednesbury sense.  But the  observations  of  the  Division  bench  which  the
\npetitioners want to rely on is as follows:\n<\/p>\n
                “However,  since  in this year the improvement examination has
\nalready been held and the common entrance test has also been  held,  it  would
\nnot be proper to cancel the improvement examination for this year, but for the
\nacademic  year  2006-2007 and onwards the improvement test need not be held by
\nthe authorities, unless they choose to restore it.”\n<\/p>\n
        7.      According to them, this benefit should accrue to those who had
\nappeared for the improvement examination in  2005  and  it  was  open  to  the
\nauthority  to  hold  or not to hold the improvement test for the academic year
\n2006-2007 onwards.  It was submitted that the fact that  the  Authorities  had
\nthe  liberty  to  decide  to  hold  or not the improvement examination for the
\nacademic year  2006-2007  would  not  mean  that  the  right  accrued  to  the
\npetitioners  by  virtue  of having appeared for the improvement examination in
\n2005 would be taken away since the Division Bench had held that it  would  not
\nbe proper to cancel the improvement examination.\n<\/p>\n
        8.      On  the  other  hand, the same paragraph is referred to by the
\nState to show that this observation would not enure  to  the  benefit  of  the
\nstudents for  ever.  It was only for that academic year and not for subsequent
\nyears and the petitioners cannot permanently take advantage of the improvement
\nexamination in the year 2005 or in any of the years prior to that.  One of the
\npetitioners before us has taken the examination in 2004.    All  the  students
\nwant  to  derive the benefit of improvement examination marks for the academic
\nyear 2006-2007.  A Judgment will have to be read as a  whole.    It  would  be
\ndangerous  to  extract  some paragraphs and try to decide the reasoning or the
\nratio laid down by the Court.  The G.O.  Clearly states,<\/p>\n
                -…  The practice of allowing students  to  take  improvement
\nexamination thereby improving their +2 marks for admission in the Professional
\nCourse be discontinued from the academic year 2005-2006.\n<\/p>\n
                8.   The  Government  further  direct  that  the  marks of the
\nstudents who have taken the improvement examination during 2005-2006 will  not
\nbe taken into account for consideration for admission to professional courses.
\nIf they choose to seek admission to professional courses during 2005-2006, the
\nmarks  obtained  by  them  in  their  first  attempt  will alone be taken into
\naccount.”\n<\/p>\n
        9.      In Paragraph Nos.6 and 7 of  the  judgment  the  case  of  the
\npetitioners is set out.\n<\/p>\n
        “6.  lt is alleged that the common entrance examination for  admission
\nto MBBS course for the academic year 2005-2006 was held on 23-04-20 05 and the
\nresult of  the  same  was  declared  on  12-05-2005.  The result of the plus 2
\n(class 12) State Board examinations was declared on 17 -05-2005.\n<\/p>\n
        7.  The petitioner’s grievance is that having been permitted  to  take
\nthe  improvement  as well as common entrance examination for admission to MBBS
\ncourse for the academic year 2005-2006, the State has no right to  change  the
\nprocedure  for  admission\/selection,  particularly  after  the  same  had been
\nannouned for the academic year 2005-2006, and the petitioner had acted on that
\nannouncement and had appeared in the entrance and  improvement  test  after  a
\ngreat deal of preparation involving time and money.”\n<\/p>\n
        10.     After considering the rival contentions of the counsel and the
\nvarious decisions relied on, the Division Bench HELD,<\/p>\n
                76.   We  are  not inclined to interfere with that part of the
\nimpugned G.O.  Which abolishes the improvement test,  as  the  decision  is  a
\npolicy  decision which does not conflict with any statutory rule or regulation
\nnor can it be said  to  be  shockingly  arbitrary  in  the  Wednesbury  sense.
\nHowever,  we are of the opinion that the said abolition should only apply from
\nnext year.\n<\/p>\n
                77.  In Poovizhi V.  Government of Tamil Nadu,  AIR<\/a>  2002  Mad
\n235  =  200 2 (1) MLJ 590, it was observed that a decision can be enforced for
\nthe next year.  In view of the aforesaid decision of this Court, we hold  that
\nso  far  as  the  improvement test is concerned, the abolition is valid but it
\nwill come into effect from the academic year 2006-2007 onwards.”\n<\/p>\n
        THEREFORE, WHAT FOLLOWS IS THAT the PRACTICE OF ALLOWING THE  STUDENTS
\nTO  TAKE  THE IMPROVEMENT EXAMINATION FOR ADMISSION TO Professional COURSE WAS
\ndiscontinued FROM THE ACADEMIC  YEAR  2005-2006.    THIS  WAS  upheld  BY  THE
\nDIVISION  BENCH, protecting the RIGHTS OF THE STUDENTS ” for this year” ALONE.
\nTHEREFORE, NO StUDENT WIlL BE entitled TO RELY ON THE  IMPROVEMENT  MARKS  FOR
\nADMISSION  TO  Professional  COURSES FROM THE ACADEMIC YEAR 2006-2007 ONWARDS.
\nTHIS IS THE ONLY logical interpretation of THE JUDGMENT AND FURTHER CLAUSE (8)
\nOF THE G.O., which DECLARES  THAT  THE  MARKS  OBTAINED  BY  THEM  IN  THE  +2
\nexamination  IN  THE  FIRST ATTEMPT ALONE WOULD BE TAKEN INTO ACCOUNT makes it
\nclear.  The prospectus for the MBBS and BDS course is in consonance  with  the
\nabove G.O.  It is not open to the students to claim that the marks obtained by
\nthem  in  the improvement examination of the year 2005 must be counted for the
\nadmission for the year 2006-2007in the face of the decision of the First Bench
\nand Paragraph No.8 of the G.O.  which has been upheld.\n<\/p>\n
        11.     As  regards  the  claim  of discrimination between engineering
\nstudents and Medical students, reliance was  placed  on  Nithiyan  P.    &S.P.
\nPrasanna Vs.  State of TamilNadu (1994 Madras 624) where the fixing of age for
\nMBBS  was  attacked  as arbitrary since it was not so stipulated for the other
\ncourses.  This attack was rejected by the Division Bench as follows:\n<\/p>\n
        “10.  We are not able to agree with  the  contention  of  the  learned
\ncounsel that for other professional courses, the minimum age is not prescribed
\nas 17years.    Every  professional course is a different and independent couse
\nand as such all Professional courses, viz.  Medicine, Engineering, Agriculture
\netc.  cannot be treated as one and the same.  Students  entering  the  medical
\ncollege constitute two different classes so that the prescription of age limit
\nfor M.B.B.S.   Course alone, in our view, is not in violation of Art.14 of the
\nConstitution of India.”\n<\/p>\n
        12.     There can be various reasons why  the  Government  chooses  to
\ninclude  the  improvement  marks  for Engineering students and not for Medical
\nstudents.  One such reasons given by the learned Government  Pleader  is  that
\nthere  are  numerous seats available in Engineering colleges, but the seats in
\nMedical Colleges are limited.  We should also take note of the fact that  only
\nfew  students  who  have  taken the improvement test only seem to have come to
\nthis Court.  The others have understood the judgment of this Court as well  as
\nthe G.O.    to  mean  that  they  are  not entitled to take the benefit of the
\nimproved marks from the academic year 2006-2007 onwards.  Their  understanding
\nof the  judgment and the G.O.  is perfectly correct and if we were to grant an
\nindulgence to these few petitioners, it would result in  injustice.    In  any<\/p>\n
event,  the  scheme  of  improvement  marks framed by the Government is only a
\nmatter of indulgence and no student could claim that he is  Entitled  to  have
\nimprovement examination conducted every year.\n<\/p>\n
        13.     I am making a slight detour with regard to the effect of these
\nmarks on  our  students.  Students come to the Court claiming that they have a
\nright to take the improvement test, there are students who oppose it, students
\nwant retotalling or valuation.    Why?    Because  their  future  hinges  upon
\naddition of  a  decimal point in their marks.  They feel that their world will
\ncome to an end if they do not join the  particular  course  of  their  choice.
\nThere  can be no doubt that acute mental pain is caused to those tender minds,
\nand some even choose to end their lives, not  because  they  have  failed  but
\nbecause eventhough they have passed they have lost, the seat of this choice by
\na few decimal points or a few marks.  In this context, I would like to extract
\nthe following  passages  from  the  Column Point of View by Mr.  Bhaskar Ghose
\ncalled “Determining excellence” in the Frontline issue dated 30th June, 2006.\n<\/p>\n
                “The frenzied attempts to get into the colleges  perceived  to
\nbe  the best for their chosen couses translate finally into the marks that the
\nstudent has  the best of four, as youngsters know only too well.   Here  even
\ndecimal  points  count; a student who has 0.5 per cent less than the ‘cut-off’
\nmarks has no chance whatsoever of getting in.  It is as if he has failed.  And
\nonly because his average in four subjects was 0.5 per cent less than  that  of
\nsome others, even though it is, say, 85 per cent.\n<\/p>\n
                …Are we – that is, we as a society, we as people who try  to
\nthink rationally – then telling our young school students that what matters is
\nnot how well you do, or how well you know your subject, but whether some other
\nstudents get just 0.5 per cent more than they do?\n<\/p>\n
        There is, surely,  something  wrong here.  …  There are many who end
\ntheir lives because they have failed, in terms of marks, but one is  referring
\nhere to those who have done well by all standards and yet choose to die.\n<\/p>\n
                ..  it is essential that a close look be taken at the issue in
\nits  entirety,  at the way in which we evaluate the intelligence and knowledge
\nthat our young have acquired.\n<\/p>\n
        …  How are they to work out a system that  is  fair,  how  can  they
\nensure  that  they  admit  those  who have done not just well, but better than
\nothers?\n<\/p>\n
        …  While respecting the problem they have to face  every  year,  and
\nseeing  some  degree  of logic in the solution they have devised to bring some
\norder to the process of admittance, one has to admit that the solution is  not
\nquite as  valid as teachers and principals would like to say it is.  It is too
\nfacile, and, more dangerously, not really a valid assessment of the  worth  of
\nthose students being taken in and and those being turned away.\n<\/p>\n
        …   Just  how is a child’s knowledge of, say, geography, rated to be
\n61.5 per cent and not 60 per cent?  If the answer is that the  figure  is  the
\ntotal  of  the  marks  awarded for individual answers, then which answer could
\nhave been so finely graded as to come up with an overall  figure  that  is  so
\nludicrous as a measure of a child’s knowledge?\n<\/p>\n
        …   Do any of the worthies in our examining bodies really think that
\ncomprehension can be measured in fractions?  And if it cannot be, why are they
\nimposing such system on the young?\n<\/p>\n
        There has been talk from time to time of doing away with examinations,
\ntraumatising and, yes, cruel system will continue.  Bright young children will
\nbe confronted by the stony decimal ponts that tell them  that  no  matter  how
\nintelligent  they  are,  or  how  much  they  have  learned, they are adjudged
\nfailures in their own eyes.  That, really, is  the  terrible  truth;  we  have<\/p>\n
taught our young to believe in these systems so completely that it is they who
\nconsider  themselves  failures  when  they are up against these absurd decimal
\npoints and cutoff marks.”\n<\/p>\n
        One feels anguish looking at the long queues of young ones standing as
\nlitigants.  I earnestly hope that the people in power work out a  policy,  not
\nin  kneejerk  reaction  to  something  that is happening now, or because it is
\npolitically expedient, but a well-thought-out  farsighted  policy  which  will
\nhave  the  well-being  of  our  country’s future citizens at the top priority.
\nThis will be in tune with Article 39(F) of our  Constitution  which  reads  as
\nfollows:\n<\/p>\n
        “that  children are given opportunities and facilities to develop in a
\nhealthy manner and in conditions of freedom and dignity and that childhood and
\nyouth are protected  against  exploitation  and  against  moral  and  material
\nabandonment.”\n<\/p>\n
        14.     The  learned  Special Government Pleader submitted that if the
\npetitioners make a request that they are willing to give the mark  sheet  with
\nthe  original  marks of the students in those subjects which they had obtained
\nin their first attempt.  This alone is material for admission  into  MBBS  and
\nBDS courses as seen from the extract of the prospectus supra.\n<\/p>\n
        15.     For  these  reasons, the writ petitions fail and are dismissed
\nwith a direction to the Director of Examination to issue mark  sheets  as  per
\nthe  marks  obtained  by  the  students in their first attempt, if they make a
\nrequest.  If  the  students  have  given  their  improvement  marks  in  their
\napplication,  they shall be permitted to carry out the necessary amendments in
\ntheir application as soon as they receive the mark sheets  bearing  the  marks
\nobtained by them in their first attempt.  The application submitted may not be
\nrejected merely on the score of this error in the application.  The respondent
\nshall  not  reject  any  of  the applications of these petitioners only on the
\nground of delay since they are not responsible for this delay.\n<\/p>\n
        16.     However, there will be no order as to costs.    The  connected
\nMiscellaneous Petitions also stands dismissed.\n<\/p>\n
glp<\/p>\n
To<\/p>\n
1.      The Government of Tamil Nadu
\n        Rep.  by its Secretary
\n        Department of Medical Education
\n        Fort St.  George, Chennai  600 009<\/p>\n
2.      The Selection Committee
\n        Rep.  by its Secretary
\n        Directorate of Medical Education
\n        162, Periyar EVR High Road
\n        Kilpauk, Chennai  600 010<\/p>\n
3.      The Director of Medical Education
\n        162, Periyar EVR High Road
\n        Kilpauk, Chennai  600 010<\/p>\n
4.      Mr.  G.  Sankaran, Government Pleader<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M. Bhuvanesh vs The Government Of Tamil Nadu on 7 July, 2006 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-132073","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM. 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