S. Siri Jagan, J.@mdashIn all these Writ Petitions, a common question of law has been raised and therefore these Writ Petitions are being disposed of by a common judgment.
2. The petitioners in these Writ Petitions are students who aspire for admission to Engineering Degree courses in management quota in various self-financing colleges in Kerala. They challenge a condition in the prospectus for admission to professional degree courses in Kerala during the year 2006-2007. The impugned clause is 9.7.5 of the prospectus. The said clause lays down that to qualify in the entrance examination and thereby become eligible to figure in the rank list, a candidate has to secure a minimum of 10 marks each in paper 1 and paper 2. They challenge this clause on various grounds like legislative competence for the State Government to make a law regarding fixation of higher standards for technical education, power to disqualify any candidate on the basis of marks in the entrance test, discrimination as between the petitioners on one hand and students getting admission through NRI quota and on the basis of test conducted by the managements'' consortium on the other and non-application of mind, while incorporating the said clause.
3. According to the petitioners, the minimum educational qualifications for admission to technical courses have been prescribed by the All India Council for Technical Education, (AICTE) ie., a pass in the 10+2 examination with physics and mathematics as compulsory subjects along with any one of the subjects of chemistry/bio-chemistry/computer science/biology, which eligibility criteria has already been mentioned in Clause 6.2.2 of the prospectus. When the AICTE has prescribed the minimum educational qualifications, the State Government does not have the legislative competence to fix a higher standard for admission to technical courses in Kerala. They would submit that by virtue of Entry 66 of List I of Schedule 7 of the Constitution of India, the power to fix standards for technical education is specifically with the Union Government and the Union Government has exercised such legislative powers by prescribing the standards as per the All India Council for Technical Education Act. Since the power of the State to legislate on education under Entry 25 of List III of Schedule 7 of the Constitution is subject to Entry 66 in List I, the legislative competence of the Government of Kerala to prescribe such a condition as per Clause 9.7.5 of the prospectus is impliedly excluded. If the prescription contained in Clause 9.7.5 is an eligibility criteria, that should have been common to all the candidates who aspire for admission and since in respect of SC/ST candidates, children and wards of NRI''s and candidates who secure admission through common entrance tests conducted by the managements'' consortium do not have to comply with the said condition, the prescription is discriminatory and violative of the fundamental rights of the petitioners. The role of Entrance Commissioner is only to rank the entire candidates who appeared for the common entrance test in the order of their marks and he cannot exclude any candidate from the list on the ground that any candidate has failed to score certain prescribed minimum marks. They also point out an anomaly in so far as the candidate who secured very high mark in one of the papers and fails to score the minimum of 10 marks in another paper he would be excluded from the rank list whereas a candidate who secures the bare minimum of 10 marks in both papers would be included and be eligible for admission. Further, it is contended that altogether about 33,000 students have been disqualified on the basis of this condition, as a result of which, thousands of seats would lie vacant in various colleges imparting technical education which would show lack of application of mind while including that condition in the prospectus. On these grounds, the petitioners seek the following reliefs.
(i) to issue a writ or certiorari or other appropriate order, or direction to quash, 9.7.5 stated in Ext.P2 of the prospectus issued by the Government for the common entrance test for2006:
(ii) to declare that the Government has no powers to fix any eligibility criterion on the basis of the test other than what is prescribed by the A.I.C.T.E.
(iii) to issue a writ of mandamus or other appropriate order, or direction to direct the 2nd respondent to publish a fresh rank list included those candidates disqualified by virtue of Clause 9.7.5. of the prospectus.
(iv) to issue a writ of mandamus or other appropriate order or direction to direct the 2nd respondent to include the names of the petitioners in the rank list prepared by the Commissioner, and gi ve them their ranks at par with those who get the same total marks and who are already included in the rank list.
4. On the other hand, the learned Advocate General who appeared on behalf of the State stoutly defended the said clause, arguing that the State has legislative competence to include the same in the prospectus and the inclusion of such a clause in the prospectus is perfectly in keeping with the principles laid down by the Supreme Court of India in various decisions relating to admissions to professional colleges. He has taken me through those decisions as well.
5. I have considered the rival contentions in detail.
6. The need for prescribing adequate minimum standards for professional education in the State cannot be over emphasized in the present day context.'' The students who are to obtain these professional degrees are the persons who are expected to develop the infrastructural facilities of the State in future. That being so, the development of the nation as a whole depends on their competence as professionals. If persons who do not have the required competence pass out from the colleges and join the mainstream in excess of those who do have adequate competence, then, the overall competence of the system itself would adversely suffer, which would result in the nation itself lagging far behind other nations in various technical fields. Since such a competency would affect the development of the nation and international stature of our nation, it is imperative that adequate minimum standards are prescribed in professional education in the country, not to separately mention the State. In that back drop, let me examine the contentions of the parties in detail.
7. I feel that I need not labour much on these aspects since every aspect raised by the petitioners in these cases are directly or indirectly covered by various decisions of our Supreme Court. First of all, the need for admissions to professional courses on the basis of merit, has been emphasized by the Supreme Court, vis-a-vis the necessity to give autonomy to the self financing colleges in the decision of
58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.
59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by Government agencies.
xxx xxx xxx
68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration, while, at the same time, they do not forgo ordiscard the principle of merit. It would therefore, be permissible for the university or the Government, at the time of granting recognition to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. This oan be done through various methods. For instance, certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance testheld by itself or by the State/University and have upgraded to the college concerned for admission while the rest of the seats may be filled up on the basis of the counselling by the State agency. This will incidentally take care of poorer backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentage can be fixed for minority unaided and non-minority unaided and professional colleges, the same principles may be applied to other non-professional but, unaided educational institutions viz., graduation and post graduation non professional colleges or institutes.
emphasis supplied
From these paragraphs it can be seen that the Supreme Court itself, while recognising the necessity to grant autonomy in administration including admission of the students, emphasized the necessity to adhere to the selection of students strictly on the principle of merit. It is now widely accepted both by the Supreme Court of India and the Government that because of the lack of uniformity in the courses of study, quality of teaching, standard of assessment etc. in different Universities/Boards the acceptable mode of assessing the competence/merit of candidate applying for admission to professional courses is by conducting a common entrance examination. By conducting common entrance test the necessity to prescribe passing marks or minimum qualifying marks have also been judicially recognised. This particular aspect has been elaborately discussed by the Supreme Court of India in the decision of
27. When a common entrance examination is held foradmission to post-graduate medical courses, it is important that passing marks or minimum qualifying marks are prescribed for the examination. It was however, contended before us by learned Counsel appearing for the State of Madhya Pradesh that there is no need to prescribe any minimum qualifying marks in the common entrance examination Because all the candidates who appear for the common entrance examination have passed the M.B.B.S. Examination which is an essential pre-requisite for admission to post-graduate medical courses. The PGMEE is merely for screening the eligible candidates.
28...A common entrance examination, therefore, provides a uniform criterion for judging the merit of all candidates who come from different universities. Obviously, as soon as one concedes that there can be differing standards of teaching and evaluation in different universities, one cannot rule out the possibility that the candidates who have passed the M.B.B.S examination from a university which is liberal in evaluating its students, would not, necessarily, have passed, had they appeared in an examination where a more strict evaluation is made.Similarly, candidates who have obtained very high marks in the M.B.B.S examination where evaluation is liberal would have got lesser marks had they appeared for the examination of a university where stricter standards were applied. Therefore, the purpose of such a common entrance examination is not merely to grade candidates for selection. The purpose is also to evaluate all candidates by a common yardstick.One must, therefore, also take into account the possibility that some of the candidates who may have passed the M.B.B.S examination from more "generous" universities, may not qualify at the entrance examination where a better and uniform standard for judging all the candidates from different universities is applied. In the interest of selecting suitable candidates for specialised education, it is necessary that the common entrance examination is of a certain standard and qualifying marks are prescribed for passing that examination.This alone will balance the competing equities of having competent students for specialised education and the need to provide for some room for the backward even at the stage of specialised post-graduate education which is one step below the super specialities.
29. The submission, therefore, that there need not be any qualifying marks prescribed for the common entrance examination has to be rejected....
emphasis supplied
Although these observations relate to admission to post graduate medical courses, the principles would apply with equal vigour to admissions to other courses through common entrance examinations. As such, without an iota of doubt, it is clear that the Supreme Court has accepted the competency of the State to prescribe pass marks or minimum qualifying marks for inclusion in the rank list of candidates in the common entrance test. Therefore, clearly, if the State, in the prospectus, prescribes that, for qualifying for admission to the professional courses in a State, the candidates should have secured a particular minimum marks in the entrance test also, it cannot be stated to be without competence, unreasonable or discriminatory.
8. In fact, the Supreme Court itself had examined the legislative competence of the State to prescribe such higher standards than what have been prescribed by the A.I.C.T.E. in the decision of
10. Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by the AICTE. It is no doubt true that the AICTE prescribed two modes of admission - One is merely dependent on the qualifying examination and the other dependent upon the marks obtained at the Common Entrance Test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission only on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test.In either event, the streams proposed by the AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by the AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in
11. Argument advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastava''s case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter which would go into the question of fixing the standard of education. Therefore it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE they should be admitted even if they fall short of the criteria prescribed by the State.The scope of the relative entries in the Seventh Schedule to the Constitution have to be understood in the manner as stated in the Dr. Preeti Srivastava''s case and, therefore, we need not further elaborate in this case or consider arguments to the contrary such as application of occupied theory no power could be exercised under Entry 25 of List III as they would not arise for consideration.
emphasis supplied
In view of the said decision, I am not impressed by the contentions of the petitioners that Clause 9.7.5. in the prospectus has been included without legislative competence. In fact, this decision is a complete and exhaustive answer to all the contentions of the petitioners.
9. Now I shall examine the contentions of the petitioners on the basis of discrimination. The contention of the petitioners is that SC/ST candidates, children and wards of Non-Resident Indians and students who appeared for the common entrance test conducted by the managements'' consortium are excluded from the said condition whereas the others have to pass that condition also for becoming eligible for admission to professional courses. I am of opinion that this argument is also fallacious. As far as SC/ST candidates are concerned, the Constitution itself recognises prescription of lesser standards for them for admission. In fact, the learned Counsel for the petitioners also reluctantly concede the same As far as children and wards of N. Rule Is. are concerned, the Kerala Self Financing Professional Colleges Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees Act, 2004 specifically recognises such a qualification in section thereof. Section 3 reads as under:
Procedure for admission into self financing professional colleges:
(1) Notwithstanding anything contained in any law for the time being in force or in any judgment decree or order of any court or any other authority or in any agreement, the admission of students into a self financing professional colleges shall be made on the basis of merit provided in Sub-sections (2) to (6).
(2) In every self financing professional colleges fifty percent of the total seats in each branch shall be Government Quota and the remaining fifty percent shall be Management Quota.
(3) Seats in the Government Quota shall be filled up based on counselling by the Commissioner for Entrance Examinations on the basis of the ranks in the common entrance examination conducted by him, following the principles of reservation as ordered by the Government from time to time.
(4.) Seats in the Management Quota shall be filled up either from the list prepared on the basis of the Common Entrance Examination conducted by the Commissioner for Entrance Examinations or from the list prepared on the basis of the common entrance test conducted by a consortium of a particular type in the State:
Provided that the managements shall have the option to earmark more than 15 per cent of the seats in the Management Quota to dependents of Non-Resident Indians and in that case, the admission of the candidates shall be made on the basis of the marks they have obtained in the qualifying examination.
(5) Educational qualification for admission in the Self Financing Professional College shall be the same as are applicable to the corresponding courses in the Government colleges as may be notified by the Government from time to time.
(6) Notwithstanding anything contained in Sub-section (1), lapsed seats, if any, may be filled by the management in accordance with Sub-sections (4) and (5).
Both these streams of admission have also been approved by the Supreme Court of India in the Pai Foundation case as also the case of P. A. lnamdar and Ors. v. State of Maharashtra and Ors. reported in (2005) 6 SCC 537 : 2005 (4) KLT 3 (SC). In paragraph 131 of Inamdar''s case the Supreme Court specifically dealt with N.R.I. seats in the following words:
131. Here itself we are inclined to deal with the question as to seats allocated for Non Resident Indians "NRI" for short or NRI seats. It is common knowledge that some of the institutions grant admissions to a certain number of students under such quota by charging a higher amount of fee. In fact, the term "NRI" in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen their level of education and also to enlarge their educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with the Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilised bonafide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilised for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to the direction in
10. The petitioners have not chosen to challenge the validity of Section 3 of 2004 Act. In fact, even the 2006 Act which replaced the 2004 Act also has not changed the position. In view of the Supreme Court decisions on the subject, the same is a reasonable classification. Therefore, they cannot be heard to contend that the same amounts to discrimination. Further, in so far as the candidates who appeared for the common entrance test conducted by the Managements'' consortium, nothing prevented these petitioners also from writing examinations conducted by the Management consortium or the Managements from joining the consortium for such tests. In fact, when the prospectus was issued, these managements were aware of the position and they could have joined the common entrance test conducted by the Managements'' consortium. That being so they cannot be heard to contend that exclusion of those students from the purview of the particular condition violates Article 14 of the Constitution of India. The contention that most of the managements are not participating in the test because the number of applications received by many colleges are less than the number of seats available with them is no answer to such a defence. I am of opinion that, as held by the decisions of the Supreme Court quoted supra, simply because seats are vacant, students who do not have minimum level of competence or minimum standard of competence cannot be allowed to be admitted to professional courses which, if allowed, would lead to deterioration of the standards of the processionals who come out of the professional colleges, as I have already indicated hereinbefore.
11. For the reasons hereinbefore mentioned, particularly the decision of the Supreme Court which categorically accepts the right of the State Governments to prescribe a minimum or qualifying marks for the common entrance Examination, the contention of the petitioners that the Commissioner of Entrance Examination can only array the candidates in the order of rank as per the marks obtained by them in the list of candidates appeared for the test and cannot exclude them from the rank list, cannot be countenanced.
12. The further contention that the prescription of separate minimum of ten marks for each paper is arbitrary also cannot be accepted. For the qualifying examinations if one scores full marks in two subjects and fails in one subject, then he would not be declared as passed in the examination at all. There is nothing wrong in applying the very same standard to the entrance examination also. Engineering course candidates should have proficiency in subjects of both papers and therefore separate qualifying marks require to be prescribed. In this connection, it should be noted that the minimum prescribed is only 10 marks which would be only minimal fraction of the total marks for each subject. In fact this 10 marks to be scored is out of a maximum marks of 480, which would work out to only 0.2% of the total marks. This can be regarded only as a barest of bare minimum standard, which can, by no stretch of imagination, be faulted. Therefore it cannot be said that prescribed minimum is not achievable by ordinary standards or the standards expected of a student seeking admission to engineering course. As such, I am not also satisfied that the contention of the petitioners in this regard is sustainable.
13. It is worthwhile to note that the prospectus itself begins with Clause 1.4 as follows:
1.4 Admissions to the above courses except Architecture are regulated on the basis of merit as assessed in the Engineering/Medical Entrance Examinations conducted by the Commissioner for Entrance Examinations (CEE). For admission to the Architecture course, the merit as assessed by giving equal weightage to the marks obtained in an Aptitude test and in the qualifying examination will be the criterion. The seats, to which admissions are made through the Entrance Examinations, are contained in the relevant paragraphs.
The same itself makes it clear that admissions are to be regulated on the basis of merit as assessed in the common entrance test. That would essentially mean that the intention behind the entrance test itself is to ensure that only those students who come within the prescribed level of standard would be considered as eligible for admission to theses courses. The petitioners have not chosen to challenge that clause. If the petitioners'' contention is to be accepted, then the very purpose of this clause would be defeated in so far as every candidate who merely appears for the entrance test would be qualified for admission, if he has the bare minimum in the qualifying examination. That would make the above clause otiose, which cannot be permitted. If that be so, the purpose and intent of this clause has to be given effect to, which can be done only by prescribing a minimum criteria for qualifying in the entrance test, which alone has been prescribed by Clause 9.7.5. As such, Clause 9.7.5 is beyond reproach.
14. In view of the above discussion, it cannot also be said that the impugned clause was incorporated in the prospectus without application of mind. As I have already said, the fact that the same would result in many seats lying vacant for this year is no reason to hold that candidates who have not proved themselves to be up to the minimum prescribed standard should be given admission to the vacant seats by deleting such condition. This has been made clear in the Supreme Court decisions quoted supra. As is abundantly clear from the decision of the Supreme Court, the paramount importance should be given to the merit of the candidates and merit cannot be sacrificed for any other fall outs of such criteria whether the implications are practical or monetary.
15. Lastly, there is another aspect also. The petitioners were aware of this particular clause in the prospectus and the condition contained therein at the time of applying for admission itself and they were put on notice that only if they satisfy this condition, they would be eligible for admission to the course. They participated in the test fully knowing the implications of the said clause. They did not choose to challenge the same at that time. As such, they cannot now, after appearing for the examination and failing to qualify, turn round and challenge the said clause itself. This has been held to be not permissible by the Supreme Court in very many cases, the latest of which is K.H. Siraj v. High Court of Kerala and Ors. reported in 2006 (2) KLT 923 : AIR 2006 SCW 3136. Although, the same relates to selection for appointment to a post in the service of the Government, the principle would be equally applicable to selection for admissions also. It would be advantageous to quote the relevant portion of the judgment, which is contained in paragraph 75 of the decision, which reads thus:
75. The appellants/petitioners having participated in the interview in this background, it is not open to the appellants/petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper. It was so held by this Court in paragraph 9 of
Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage, there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioner as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview they have filed this Writ Petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the intervew is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the selection committee was not properly constituted. In the case of As such, the Writ Petitions should fail on that ground also. Therefore, on all counts, the petitioners have not made out a case for interference by this Court with Clause 9.7.5 of Ext. P 1 prospectus. Therefore, the Writ Petitions fail and the same are accordingly dismissed.
