Antony Dominic, J. WA Nos. 78, 86, 88, 89, 90, 91, 126/2014 These appeals are filed by the petitioners in the writ petitions who are aggrieved by the common judgment rendered by the learned single Judge on the 5th of December, 2013 dismissing the writ petitions.
2. The appellants aspired for admission to B.Ed Course in various subjects in the management seats in the Self Financing Colleges affiliated to the Calicut University. Since they were ineligible, writ petitions were filed by them, in which, the main challenge was against the prescription in the prospectus for academic year 2012-13 that the candidates should have passed B.A/B.Sc degree examinations and that the minimum marks in Part III shall be 50%. The contention raised was that the State of Kerala which issued the prospectus and prescribed the aforesaid eligibility criteria did not have the power to do so.
3. In the writ petitions, taking note of the submission made at the Bar that the managements did not have any objection in admitting the students, interim orders were passed and on the strength of such orders, the appellants were admitted to the course and have by now completed the course also. In the impugned judgment, the learned single Judge upheld the provisions of the prospectus as also the competence of the State to prescribe the eligibility criteria and dismissed the writ petitions. It is challenging this judgment, this batch of appeals are filed.
4. We heard the learned senior counsel appearing for the appellants, learned standing counsel appearing for the University, learned standing counsel for the NCTE and the learned Government Pleader. We also take note of the fact that there was no appearance or representation on behalf of the managements either before the learned single Judge or before the Division Bench.
5. Briefly stated, the facts of the cases are that for the academic year 2012-13, Government issued prospectus for admission to B.Ed Degree Courses in Government/Aided/Self Financing Colleges, the relevant portion of which is Ext.P4 (produced in WA No.78/14). In Clause 5.2 of the prospectus, the academic qualification prescribed for admission was specified. In Clause 5.2.1(iv), it was specified that the minimum requirement of marks for admission to B.Ed Courses is 50% in Bachelor's Degree (Science/Arts subjects) for Part III or 50% marks in M.A/M.Sc/M.Com. The appellants are all graduates who did not satisfy this requirement. But at the same time, they aspired for admission in the vacant management seats in the Self Financing Colleges affiliated to the University of Calicut. It was in such circumstances that they filed the writ petitions challenging the competence of the State to prescribe the eligibility for admission and also seeking admission to the vacant seats in the management quota.
6. Before us, learned senior counsel for the appellants contended that Section 12 of the National Council for Teacher Education Act (NCTE) 1993 prescribed the functions of the Council and that as per Section 12(e), it was the function of the Council to lay down norms for any specified category of courses or training in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum. Counsel told us that the NCTE has framed regulations, the appendix of which is also produced as Ext.P1 in WA No.78/14, which show that as per the regulations framed, the candidates with at least 50% marks either in the Bachelor's Degree and/or in the Master's degree or any other qualification equivalent thereto are eligible for admission to the programme. Learned counsel pointed out that since Section 12(e) of the NCTE Act authorised the NCTE to lay down the minimum eligibility criteria for admission to B.Ed course, the prescription of 50% marks in the Bachelor's Degree as contained in the regulation should be taken as the minimum prescribed by the NCTE and that therefore, the Government of Kerala was competent to prescribe superior qualification for admission.
7. Counsel contended that Section 25 of the Calicut University Act lays down the powers and duties of the Academic Council and that Clause (v) thereof enabled the Academic Council of Calicut University to prescribe the qualifications for admission of students to the various courses of studies and to the examinations and the conditions under which exemptions may be granted. Our attention was also invited to Section 38(b) of the Calicut University Act which provided that subject to the provisions of the Act, the Statutes and the Ordinances, the Academic Council may make Regulations providing for the admission of students to the various courses of study and to the examinations. According to him, in exercise of the powers under Section 25 read with Section 38 of the Calicut University Act, the University have not framed any regulations providing for qualification superior to that prescribed by the NCTE in the regulations framed under the NCTE Act. According to the counsel, since the State has delegated its powers to the University and as the University have not framed any regulations governing admission, admission to B.Ed courses should be governed by the minimum eligibility laid down by the NCTE in terms of Section 12 (e) of the NCTE Act, which is evident from NCTE Regulations referred to above.
8. He also contended that the power of the State to issue prospectus should be traced to the provisions of Article 162 of the Constitution of India and Entry 25 of List III. It was his contention that once the State's power which is available to it under the NCTE Act is delegated to the University, which is evident from Sections 25 and 38 of the Calicut University Act, State has no further right to exercise the powers under Article 162 of the Constitution of India. In support of this contention, counsel placed reliance on the decision of the Apex Court in Paul Manoj Pandian v. P. Veldurai [(2011) 5 SCC 214] and in particular paragraphs 46 and 48 thereof.
9. It was also his contention that neither the State nor the University can rely on the provisions of Section 68A of the Calicut University Act to salvage the prescription of eligibility criteria as reflected in the prospectus issued by the State. Therefore, according to him, the conclusions of the learned single Judge that the prescriptions in the prospectus are valid in the light of the constitutional powers of the State under Article 162 read with Entry 25 of List III are untenable and unsustainable.
10. On the other hand, learned standing counsel for the University as also the learned Government Pleader contradicted the submissions made by placing reliance on Section 68A of the Calicut University Act and also by placing reliance on the Apex Court judgment in State of T.N v. S.V.Bratheep [(2004) 4 SCC 513].
11. We have considered the submissions made.
12. It is true that in terms of Section 12(e) of the NCTE Act, 1993, one of the functions of the Council established under Section 3 thereof, is to lay down the norms for any specified category of courses or training in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum. Section 32 of the NCTE Act provides that the Council may, by notification in the Official Gazette, make regulations not inconsistent with the provisions of the Act and the rules made thereunder, generally to carry out the provisions of the Act. Section 32(2)(d)(ii) provides that in particular, and without generality to the power under Section 32(1), such regulations may provide the norms, guidelines and standards in respect of the specified category of courses or training in teacher education under Section 12(e) of the Act. It was in exercise of this power that the NCTE have framed regulations which lays down the norms and standards for Bachelor of Education Programme leading to Bachelor of Education B.Ed degree. Clause 3(2) of the appendix providing for eligibility states that the candidates with at least 50% marks either in the Bachelor's Degree and/or in the Master's Degree or any other qualification equivalent thereto are eligible for admission to the programme.
13. A combined reading of the provisions contained in the NCTE Act and the regulations referred to above show that the 50% marks specified by the NCTE in its regulations, if understood in the context of Section 12(e) of the Act, is the minimum eligibility prescribed for admission to B.Ed courses. This, therefore, did not in any manner prevent the State from exercising its power under Entry 25 of List III of Schedule VII to the Constitution of India. It was accordingly that the State empowered the Academic Council of the Calicut University by Section 25 of the Calicut University Act to prescribe the qualifications for admission of students to the various courses of studies and to the examinations and the conditions under which exemptions may be granted.
14. Therefore, if we are to accept that with the delegation to the University, the State has exhausted its power to prescribe qualifications for admission to B.Ed, then there is relevance for the principles laid down by the Apex Court in Paul Manoj Pandian's case (supra), where, in paras 46, 47 and 48, it was held thus;
“46. Under Article 162 of the Constitution, the executive power of the State extends to matters with respect to which the State Legislature has power to make laws. Yet the limitations on the exercise of such executive power by the Government are two fold; first if any Act or law has been made by the State Legislature conferring any function on any other authority, in that case the Governor is not empowered to make any order in regard to that matter in exercise of his executive power nor can the Governor exercise such power in regard to that matter through officers subordinate to him. Secondly, the vesting in the Governor with the executive power of the State Government does not create any embargo for the legislature of the State from making and/or enacting any law conferring functions on any authority subordinate to the Governor.
47. Once a law occupies the field, it will not be open to the State Government in exercise of its executive power under Article 162 of the Constitution to prescribe in the same field by an executive order. However, it is well recognised that in matters relating to a particular subject in absence of any parliamentary legislation on the said subject, the State Government has the jurisdiction to act and to make executive orders. The executive power of the State would, in the absence of legislation, extend to making rules or orders regulating the action of the executive. But, such orders cannot offend the provisions of the Constitution and should not be repugnant to any enactment of the appropriate legislature. Subject to these limitations, such rules or orders may relate to matters of policy, may make classification and may determine the conditions of eligibility for receiving any advantage, privilege or aid from the State.
48. The powers of the executive are not limited merely to the carrying out of the laws. In a welfare State the functions of the executive are ever widening, which cover within their ambit various aspects of social and economic activities. Therefore, the executive exercises power to fill gaps by issuing various departmental orders. The executive power of the State is coterminous with the legislative power of the State Legislature. In other words, if the State Legislature has jurisdiction to make law with respect to a subject, the State executive can make regulations and issue government orders with respect to it, subject, however, to the constitutional limitations. Such administrative rules and/or orders shall be inoperative if the legislature has enacted a law with respect to the subject. Thus, the High Court was not justified in brushing aside the Government Order dated 16.11.1951 on the ground that it contained administrative instructions.”
15. However, in so far as these cases are concerned, admission that is sought by the appellants was to Unaided Colleges which are affiliated to the Calicut University. In so far as the Unaided Colleges which are affiliated to the Calicut University are concerned, special provision empowering the State to determine the basis on which admissions, selection and fees payable by the students in such colleges has been made by virtue of Section 68A of the Act. This provision, being relevant, reads thus;
“68A. Special provisions in respect of unaided colleges- Notwithstanding anything contained in this Act or the Statutes, Ordinances, Regulations, rules, bye laws, or orders,-
(a) the scales of pay and other conditions of service of the teaching and non-teaching staff of un-aided colleges; and
(b) the admission and selection, and fees payable by, students in such colleges, shall be determined, from time to time, by the Government on the basis of the recommendations of a committee constituted by the Government consisting of-
(i) one of the Vice-Chancellors of the Universities in the state, nominated by the Government;
(ii) the secretary to Government, Higher Education Department (who shall be the convenor of the committee); and
(iii) the Director of Collegiate Education.”
16. A reading of this provision shows that notwithstanding the provisions of the Calicut University Act, Statutes, Ordinances, Regulations, rules, bye laws, or orders, the admission and selection, and fees payable by, students in unaided colleges affiliated to the University shall be determined, from time to time, by the Government. This section further provides that such determination by the Government shall be on the basis of the recommendations of a Committee constituted by it, the constitution of which is also indicted in clauses (i), (ii) and (iii) to the Section. Therefore, in so far as the admission to unaided colleges which are affiliated to the Calicut University are concerned, Section 25(v) which empowered the Academic Council to fix the qualifications or Section 38(b) authorising the University to frame regulations regarding admission to B.Ed courses or the regulations framed thereunder, can have no relevance and what is relevant is Section 68A of the Act which empowers the State to determine the basis on which admissions are to be made in such colleges. If that be so, not only that the provisions noticed above have no relevance but also the principles laid down by the Apex Court in Paul Manoj Pandian (supra) relied on by the learned counsel for the appellants also have no relevance.
17. Now that by virtue of Section 68A, State has reserved unto itself the power to determine the basis for admissions, the question survives to be considered is whether the State could have fixed a qualification which is superior to the minimum prescribed by the NCTE in its regulations. Answer to this question has been laid down by the Apex Court itself in its judgment in Bratheep's case (supra). That was a case where the Government of Tamil Nadu had prescribed the percentage of marks which was higher than what was prescribed by the AICTE in the matter of admission to Engineering Colleges. Such prescription was upheld by the Apex Court holding thus;
“8. As regards the scope of the entries in the Constitution arising under Entry 66 of List I and Entry 25 of List III Of the Seventh Schedule to the Constitution, it was examined in great detail by a Constitution Bench of this Court in Preeti Srivastava (Dr) v. State of M.P. After adverting to these two entries in the Seventh Schedule, this Court stated as follows: (SCC p.154, paras 35-36.) “35.....Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education.
9. 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 AICTE. It is no doubt true that 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 AICTE, can it be said that is in any manner adverse to the standards fixed by 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 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 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 AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by 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 Dr Preeti Srivastava case. It is no doubt true, as noticed by this Court in Adhiyaman case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not a very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by a series of decisions of this Court including Dr Preeti Srivastava case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.”
In the light of the above principles, we have to necessarily uphold the contention of the University and the State that in the light of Section 68A of the Calicut University Act and the principles laid down by the Apex Court in Bratheep's case (supra), the prescription of eligibility as contained in the prospectus, which was impugned by the appellants, is legally valid and tenable.
18. However, learned counsel for the appellants contended that this was not a case where the prescriptions contained in the prospectus were made by the Government in exercise of its power under Section 68A of the Act. He also referred us to the counter affidavit filed by the State where the attempt made was to sustain the prescription relying on the power of the State under Article 162 of the Constitution of India. Though it is true that the counter affidavit filed by the respondents suggests reliance on powers under Article 162 of the Constitution of India without making any express reference to the said Article, we are unable to accept the contention raised by the learned counsel for the appellants.
19. First of all, it cannot be disputed that by virtue of section 68A of the Calicut University Act, State has reserved unto itself, the power to determine the basis of admission which includes eligibility as well. Once that position is accepted and if the appellants had a contention that the State had not exercised its power thereunder in the manner laid down therein, either by issuing orders or by constituting Committee as provided in the section itself, those are factual contentions which should have been pleaded in the writ petitions and proved by the appellants themselves. Admittedly, there is no such pleading either in the writ petitions or even in the appeal memorandum and this contention was not even raised before the learned single Judge. In such circumstances, for dearth of pleading itself, we should reject the contention of the learned counsel for the appellants that in these cases, the State did not invoke its power under Section 68A of the Calicut University Act.
20. The learned senior counsel then placed reliance on the judgment of the Apex Court in T.M.A.Pai Foundation v. State of Karnataka [(2002) 8 SCC 481] to contend that in the light of the principles laid down by the Apex Court, the provisions contained in Section 68A(b) is rendered redundant. In this context, counsel placed reliance on paragraph 40 of the judgment in T.M.A.Pai Foundation (supra,) which reads thus;
“40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.”
21. Reading of this judgment shows that it recognises the power of the State to prescribe minimum qualifications. Even otherwise, as per this judgment, any system of student selection depriving the private unaided institutions the right to make rational selection, which it devised for itself, would be unreasonable. First of all, the managements which may be entitled to raise such a contention have not raised any such contention. In fact, they chose not to appear and contest these cases. Secondly, this again is not a contention raised in the pleadings, and in the writ petitions, there is no challenge against Section 68A either. In such circumstances, this contention does not arise for consideration in these appeals.
22. Lastly, it was pointed out that the appellants have completed the courses and therefore their interests should be safeguarded. Admittedly, appellants were ineligible candidates who have through a collusive litigation wangled admissions and it was accordingly that they completed the course. Further, the Apex Court has repeatedly laid down that misplaced sympathy should not be shown in cases of this nature. Therefore, we are not inclined to pass any order as sought for by the counsel.
23. For all these reasons, we do not see any merit in the contentions raised. Appeals deserve only dismissal.
WA No.583/12
24. In so far as this case is concerned, the appellant herein secured admission to a management quota seat of B.Ed course in a College affiliated to the Calicut University and on that basis completed his course as well. In similar circumstances, he filed WP(C) No.30527/10 and on the dismissal of the writ petition by judgment dated 18/1/12, this writ appeal is filed.
25. The issues canvassed by him are substantially covered by the judgment in the aforesaid cases. Additionally, one contention that he raised was that there was difference in the qualifications prescribed for admission to B.Ed courses for students in the Self Financing Colleges affiliated to the University and students undergoing the very same course in the University study centres. It was contended that he having satisfied all the conditions prescribed for admission in the University study centres should not have been held ineligible for admission on the basis of different qualifications prescribed for students seeking admission in the Self Financing Colleges.
26. We have already held that in so far as the Self Financing Colleges are concerned, admission shall be based on the eligibility criteria fixed by the Government in exercise of its powers under Section 68A of the Calicut University Act. Therefore, if the Government have validly prescribed the eligibility criteria, even if the same is at variance with students studying elsewhere, that will not render the eligibility prescribed illegal. Therefore, we are unable to accept this contention raised by the learned counsel for the appellant. This appeal is devoid of any merit.
Writ appeals are, accordingly, dismissed.
Rp //True Copy// PA to Judge Sd/-
ANTONY DOMINIC JUDGE Sd/-
ANIL K. NARENDRAN JUDGE