@JUDGMENTTAG-ORDER
S.S. Subramani, J.@mdashBoth these writ petitions are for the same relief on similar fact, and therefore, they are disposed of by this common
order. The petitioner W.P.No. 14088 of 1997, has sought for the issuance of the writ of mandamus, directing the respondents to permit the
petitioner''s transfer from Nitte Mahalinga Adyanthaya Memorial Institute of Technology, Nitte, Karnataka to Hindusthan College of Engineering,
Chennai, or to any other college at Chennai, for the third semester of B.E., degree course (Computer Engineering). In the other writ, the petitioner
seeks the same relief, i.e., transfer from Golden Valley Institute of Engineering, Kolar Gold Field to any one of the colleges at Chennai, for the third
semester of B.E., degree (mechanical).
2. In both these writ petitions, the petitioners contend that they are physically not well, and on the basis of the Doctor''s advise they have to be
remain at the State of Tamil Nadu, and therefore, they wanted to continue their studies in any one of the colleges in this State. It is also their case,
that the college in which they are studying and also the concerned University have given ''No Objection Certificate'', and they also contend that
since their initial selection is by the Director of Technical Education, they are entitled to get admitted in any one of the colleges in Tamil Nadu in the
third semester.
3. In so far as the petitioner in W.P.No. 14088 of 1997 is concerned, the petitioner has filed in the IV Semester, and what she wanted is an
admission in the III Semester. It is further alleged by the same writ petitioner, that she had applied for consent to the concerned Minister of Tamil
Nadu; who has also directed the respondents to admit her in H.I.E., by way of transfer. It is her case that inspite of the orders of the Minister
concerned, the Director of Technical Education is refusing to admit her on transfer.
4. The counter affidavits in both these writ petitions are similar. In the counter affidavit, it is stated that inter-State transfer can only be done, on the
basis of the orders issued by the Secretary, Higher Education, State of Tamil Nadu, who alone is the competent authority. It is also contended that
candidates seeking admission on transfer has to satisfy the eligibility marks prescribed by the Government of Tamil Nadu, for securing admission in
B.E., Engineering course, i.e., they should have secured a minimum of 60% marks in Mathematics, 60% marks in Physics and Chemistry, put
together 140 in aggregate (marks in the case of open competition), and the candidates should have passed all the examinations prescribed by the
parent University for the duration of the course of study already put in and has to produce documentary evidence to that effect. It is further
contended that ''No objection certificate'' from the University to which the transfer is sought for has also to be produced, nor the petitioners had to
satisfy the minimum eligibility marks prescribed by the Government for securing admission in B.E., degree course in this State. Both the petitioners
will have to produce the No objection certificate from the University of Chennai, to undergo the third semester in any one of the colleges in the
State of Tamil Nadu. It is further contended that the advise of the Minister can only be taken to act in accordance with Law. Even though the
petitioners, on health grounds, are eligible for transfer, since they have not qualified or eligible to be transferred, as they have not satisfied the other
conditions, they seek the dismissal of the writ petitions.
5. I first consider the question as to how far the Minister''s advise or direction is of any legal validity. It is seen that the petitioner in W.P.No.
14088 of 1997, made a representation to the Director of Technical Education. The same was taken to the Education Minister, who passed the
following order:
DTE
may permit transfer to HIE
The complaint of the petitioner is that inspite of the orders of the concerned Minister, the authorities are not acting on the same.
6. In Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, , in paragraph 25 of the judgment, their
Lordships have held thus:
A century ago, in Taylor v. Taylor (1875) 1 C.D. 426 Jessel M.R., adopted the rule that where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test
of time. It was applied by the Privy Council, in AIR 1936 253 (Privy Council) and later by this Court in several cases Rao Shiv Bahadur Singh and
Another Vs. The State of Vindhya Pradesh, , Deep Chand Vs. The State of Rajasthan, to a Magistrate making a record under Sections 164 and
364 of the Code of Criminal Procedure, 1898. This rule squarely applies ""where, indeed, the whole aim and object of the legislature would be
plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell''s Interpretation of
statutes, 11th Edn. pp.362-363.
This decision was followed by the High Court of Kerala, in a decision reported in Pankajakshan v. State of Kerala and Ors. 1986 K.L. T. 901.
That is a case, where a person who applied for water connection before the authorities, had to wait for a long period. When the authorities did not
initiate any action, the person moved the Minister, who directed the authorities to give him the connection. Inspite of the orders of the Minister, the
connection was not given. The matter was challenged before the High Court. Considering the same, in paragraph 6 of the judgment, His Lordships
has held thus:
Ordinarily, this Court could have issued a further direction to the Authority to deal with the petitioner''s request for pipe connection within a short
but reasonable period, if the order of the Minister had legal efficacy. If, on the other hand, the order of the Minister in the form as it is given, does
not have effect of a legal and binding order, this Court cannot compel officials of an autonomous authority to implement such an order. This
necessitates a detailed consideration of the question about the nature and legal force of the order passed by the Minister. Counsel for the petitioner
submitted that the order was passed by the Minister in his capacity as the Chairman of the Water and Waste Water Authority. This submission is
based on a vague understanding, and an imprecise appreciation, of the status and powers of a Minister. It is time that a widely prevalent and deep
rooted wrong impression that the Minister in charge of a Department to could pass whatever order be pleases, is corrected. The Minister is a
constitutional functionary, and has to exercise his powers subject to the provisions of the Constitution and the laws. Even in relation to �matters
which are within his portfolio, he cannot pass any orders his whims and fancies. Procedural formalities and legal provisions have all to be complied
with before an order is passed by the Minister. A Minister may feel, and even say, that he has authority or power to pass any order as he feels.
Regarding such Ministers, Lord Atkin said long time back in Liversidge v. Anderson: ''A Minister given only a limited authority cannot make for
himself a valid return by merely saying I acted as though I had authority. His ipso dixit avails nothing."" 1946 A.C. 206 (247).
Lord Denning analysed the legal position of authorities having limited powers in Bromely''s case (L.B.C. v. G.L.C. (1982) 1 AE.R. 129
observation''s of the Watkins, L.J., in that case occurring at page 149 of that report, made particular mention of those who newly come by power,
and the pitfalls in which they may take themselves to, when they overlook the statutory limitations: He observed:
Those who come newly to govern people and who act in haste in wielding power to which they are unaccustomed would do well to heed the
words of Gladstone. He knew a great deal of power, and in 1890 he said of it:
The true test of a man, the test of a class, the true test of a people is power. It is when power is given into their hands that the trial comes.
It is, therefore, no slur on his status nor a dig at his dignity, to reiterate that a Minister cannot pass any order de hors the Constitution, the statutory
provisions and enabling administrative instructions. Even when power exists, the mode of exercise of power can also be regulated by law. In such a
situation, the power has necessarily to be exercised only in the manner prescribed.
The Supreme Court emphasised that aspect in Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, ,
when it recalled: (as extracted supra).
These two decisions, according to me, fully answer the contentions of the counsel for the petitioners, regarding the enforceability of the Minister''s
orders. Even if the Minister passed any such order, the authorities can do to it only in accordance with law, and only if law permits. Merely on the
basis of the orders of the Minister, no transfer could be effected.
7. The next question that has to be considered is whether the petitioners are eligible to be transferred to any one of the colleges in the State of
Tamil Nadu from the colleges at the State of Karnataka. Both the petitioners are not seeking for the initial admission to B.E., degree course. What
they want is an admission to third semester B.E., degree course. An argument was taken by the counsel for the petitioners, on the basis of the
decision reported in State of Tamil Nadu and Anr. v. Adhiyaman Educational and Research Institute and Ors. (1955) 4 S.C.C. 104 to contend
that subsequent to the enactment of All India Council for Technical Education Act, 1987, only the provisions thereunder will have to be applied
and the prospectus issued by the University will have no legal validity. The contention is that if at the time of initial admission, the petitioners
obtained 60% marks, they are eligible even to get admission in any other college for the subsequent years.
8. As against the said contention. Additional Government Pleader submitted that the decision relied on by the counsel for the petitioners is a case
for the entrance examination conducted, and in so far as the admission on transfer in subsequent years is concerned that is not based on any
entrance examination, and therefore, the State Government is entitled to fix its own norms, and therefore, it is valid. Paragraph 41 of the judgment
of the Supreme Court at pages 134 and 135 of the report, was relied on by the counsel, and for convenience the same is extracted hereunder:
What emerges from the above discussion is as follows:
(i) The expression ''coordination'' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation.
It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development.
It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would,
therefore, also include power to do all things which are necessary to prevent what would make ''coordination'' either impossible or difficult. This
power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and
express intention.
(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25
of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the
Concurrent list or to give effect to Entry 66 of the Union List, it would be void and in operative.
(iii) If mere is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article
254, the State legislation being repugnant to the Central Legislation, the same would be in operative.
(iv) whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the
Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.
(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or
qualifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not
encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central Law.
(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not
qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by
the Central Law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the
standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State
authorities act illegally.
9. The very same question has come up for consideration before this Court in W.P.Nos. 12425, 12495, 12496 and 12503 of 1996, wherein the
petitioners had sought for admission in the second year B.E., degree course, ofcourse that is not from another University. But the candidates were
diploma holders, which entitles them to get admission in the second year onwards. A similar argument was put forward before the learned Judge,
that once they have obtained 60% marks, they are eligible to be admitted. In the judgment dated 5.11.1996, the learned Judge has held thus:
Therefore, what is necessary for this Court to consider is to find out the minimum marks or the eligible marks which a candidate should score in the
Diploma Course for seeking admission to the B.E., degree course under the lateral entry system. I will therefore, advert to the necessary
prescription made by the AICTE in the guidelines issued by them. Paragraphs 5, 4 of the guidelines relates to the lateral entry to Degree
programmes. The preamble portion, highlights the necessity to select only such students who have passed the Diploma course with high standards
to ensure quality of entrants to Engineering Degree programmes. Thereafter, the guidelines prescribed the mode of selection and the minimum
eligible marks in the following terms: ""For being eligible to seek laterally entry to an engineering degree programme at the second year/third
semester level, a candidate must have passed the diploma in engineering in the relevant branch with a minimum of 60 per cent in the aggregate.
Only candidates fulfilling this condition would be eligible for appearing in the entrance test meant for selection of diploma holding candidates for
lateral entry to degree programmes. The selection of the candidates will be based on a State level entrance test, the merit ranking in this test being
the basis for admission.
A perusal of the above directions clearly indicate that the AICTE recommends an entrance examination to be conducted and prescribes the
minimum marks for admission to the entrance examination. This is very clear from the following words:
Only candidates fulfilling this condition would be eligible for appearing in the entrance test.
In fact, the guidelines further say that after the entrance test, the merit ranking in the entrance test should be the basis for admission to the B.E.,
degree course. I am therefore, convinced that the minimum marks prescribed by the AICTE cannot be taken as the minimum marks for admission
to the B.E., degree course (lateral entry), where no entrance test is conducted and where the admission is based merely on the marks obtained in
the Diploma course, This essential difference has to be kept in mind before applying the dictum of the Supreme Court in Adhiyaman''s case. In the
said case before the Supreme Court State of T.N. and Another Vs. Adhiyaman Educational and Research Institute and Others, , the question
involved was whether after the coming into force of the All India Council for Technical Education Act, 1987 (Central Act), the State Government
had power to grant and withdraw permission to start technical institutions as defined in the Central Act. While dealing with the said question, the
Apex Court has laid down certain inflexible conclusions flowing from the Judgment. One of the important conclusion with which we are concerned
is as follows:
However, when the situations/seats are available and the state authorities deny an applicant the same on the ground that the applicant is not
qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by
the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the
standards or requirement laid down by them, although it is satisfied the norms and requirements laid down by the Central authority, the State
authorities act illegality.
Let us now examine whether the prescription made by AICTE as quoted above, is in conflict with the prescription made by the Tamil Nadu Govt.
The ratio of the Apex Court judgment says that if an applicant satisfied the standards or qualifications laid down by the Central Law, they cannot
be denied admission to the course. I have already indicated that the AICTE has only prescribed qualification of an entrance test and the minimum
marks for admission to the entrance test. In the case before us, it is not disputed that no entrance test at all was conducted and the Government has
been communicating with the Authorities regarding the difficulties in the conduct of the written test. This is clear from paragraph 4 of the
Government Order Ms.No. 369, Education, dated 10.5.1995. In this case, we are not concerned with the legality of the procedure in not
conducting an entrance test. We are only concerned with the question whether AICTE has prescribed any minimum marks for admission to the
B.E., degree course (lateral entry) and where the State Government has proceeded contrary to the said direction. In my considered opinion,
inasmuch as, there was no entrance test, the prescription of marks by the AICTE does not at all apply to the admission of candidates to the B.E.,
degree course by lateral entry system. If the AICTE had prescribed the minimum marks for admission to the B.E., degree course in the absence of
an entrance test, then only, the question will arise. This is precisely what happened in the batch of cases dealt with by me in W.P.Nos. 8397 etc.
cases dated 9.10.1995. The prescription of minimum marks in the case of candidates seeking direct admission to the B.E., degree after passing the
Higher Secondary Examination is different. The very same guidelines of the AICTE says that in respect of such direct entry into B.E., degree
course, the following will be the criteria.
The minimum qualification for admission to degree programmes in engineering should be passing the 10+2 Science stream examination with a
minimum aggregate of 60 per cent marks in Physics, Chemistry and Mathematics obtained in a single sitting. The duration of degree programme in
engineering will be 4 years after 12th standards. This will apply to cases where admissions are based on the marks in the qualifying examination
and not on the basis of entrance tests.
In the said batch of cases, I had indicated that the above prescription by the AICTE will apply to cases where admissions are based on the marks
in the qualifying the examination and entrance examination. If the admission to the courses were based only on entrance test, the situation might
have been different. It is in that view of the matter, since the marks in the qualifying examination was also taken into account, I directed that the
prescription by the AICTE should be followed and gave certain reliefs to the petitioners.
There is a clear distinction between the guidelines issued by AICTE in the paragraph 5.1 and 5.4. Therefore, with regard to the admission to the II
year B.E. degree course under the lateral entry system, there is no AICTE direction that candidates with 60% marks minimum are eligible for
admission to the course. Such candidates are eligible only for admission to the entrance test. Since there was no entrance test conducted by the
respondents, the prescription of minimum marks cannot bind the respondents. In this view of the matter, I hold that in respect of the selection to the
II year B.E., degree course (lateral entry system) the respondents are justified in insisting of the minimum marks prescribed by the State
Government which have been set out while referring to the counter affidavit of the fourth respondent.
Learned Counsel for the petitioners sought to rely on Section 10(1) of the All India Council for Technical Education Act, 1987 for emphasising his
point that the AICTE alone can lay down the norms and standards for the courses. It is this aspect of the case which was taken note of by the
Supreme Court in the above quoted case to emphasise the point that where the Central Act prescribes qualifications, the State Act cannot
prescribe the qualifications which are contrary to the Central Enactments. I have already pointed out that the State Enactment or prescription in this
case is not contrary to the AICTE directions. In this view of the matter, the primary contention of all the petitioners fall and therefore, they cannot
justify the prayer in the writ petitions to direct the respondents to admit any of the petitioners in any of the self-financing colleges.
[Italics supplied]
I fully agree with the view of the learned Judge, regarding the applicability of the Judgment of the Supreme Court, and I follow the same in this case
also. From the above decision, it is clear that the norms of AICTE applies only to initial admission and not for later admission, whether it be by
transfer or admission from some other States. For later admission, there is no entrance examination, and therefore, guidelines by the State
Government are followed, and the authorities are justified in not admitting the petitioners, since they have not satisfied the eligibility. In both the
affidavits, the petitioners have not stated anything about the marks, they have obtained in the qualifying examination, and also in the entrance
examination, though the same is specifically disputed by the State. In view of the binding precedent, the contention of the learned senior counsel for
the petitioners is rejected.
10. Apart from the same, both these writ petitioners have not filed any ''no objection certificate'' from the 1st respondent, nor they have filed ''no
objection certificate'' from the University of Chennai. Counsel for the petitioners submitted that regarding certain candidates, transfer has been
effected and in W.P.No. 14088 of 1997, the petitioner has stated certain instances. Apart from justifying the action in the counter affidavit, the
respondents had stated that the candidates transferred have proved their eligibility. Assuming for argument sake that the candidates, who were not
eligible were allowed to be transferred, that cannot be a ground for issuance of a writ of mandamus in this case. At the most, I can only say, if
those transfers were not in accordance with the norms, that should not be repeated, and if I allow the same to be repeated, it amounts to allowing
the illegality to be repeated. Hence the said contention of the counsel also has to fail.
11. Under the above circumstances, even though the petitioners may be physically unwell, and a sympathetic consideration may have to be taken,
in an application under Article 226 of the Constitution filed, they have to prove their eligibility for being admitted. I can refuse to grant the relief
sought for. Consequently, both the writ petitions are dismissed, however, without any order as to costs. The connected W.M.Ps., are also
dismissed.
