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History of entrance examination in Tamil Nadu
Dr. Justice A.K.Rajan, L.L D
Common entrance examinations were conducted for the purposes of admitting students to professional colleges, like Engineering and Medical colleges, in Tamil Nadu from 1984. The Medical Council of India wanted to control the admission process to Graduate and Post –Graduate Medical courses and hence issued number of Notifications starting from 1997. On the experience gained and the consequences those entrance examinations had on the students, especially the students from the rural areas, T.N. Govt. decided to abolish all such entrance examinations. Therefore the T.N. Legislative Assembly enacted “T.N. Admission in professional educational institutions Act 2006”. That law was given assent by the President of India. Consequently, all entrance examinations for admission to professional institutions, like Medical and Engineering institutions were abolished. Students were admitted to such institutions based on the marks obtained in their qualifying examinations.
“Christian Medical College Vs Union of India,
2. Subsequently, two Notifications were issued; one on 21-12-2010 and another in 2012, by Medical Council of India (MCI) and the Dental Council of India (DCI), whereby NEET was made mandatory for admission to all medical courses. Those Notifications were challenged by the Vellore, Christian Medical College (CMC). In that case, the Supreme Court by a 3 Judge Bench in July 2013, by majority of 2-1[CJI and Justice Vikramjith Singh] held that MCI and DCI have no powers to regulate the admission of students to Medical Colleges. In that case Justice Anil R Dave gave the dissenting judgment.
3. The majority judgment also held that the T.N. Act and A.P. Act will remain unaffected by the Notifications issued by MCI and DCI. Those Regulations cannot prevail over the constitutional guarantees. The court held thus:-
“In the light of the views expressed in the various decisions cited, we have no hesitation in holding that the regulations are ultra vires the Constitution, since they have the effect of denuding the States, State-run Universities”, and contrary to the decision in T.M.A.Pai Foundation case.
Thus, Supreme Court held that the regulations, as notified, are not legal.
Review petitions and the Recall order:
4. Against that order, review petitions were filed by MCI. By 2016 the two judges, who gave the majority judgment in the CMC case, had retired due to superannuation. When Justice Anil R. Dave, who gave the dissenting view, was heading a Five Judges Bench, the Review petitions were transferred to that bench. The Five Judge Bench passed the following order, on 11-4-2016.
“……Civil Appeal No. 4060/2009 and connected matters involving an identical issue, had been ordered to a Five Judge Bench. Accordingly on 21st January 2016, these review petitions were ordered to be heard by a Five Judge Bench.
On 21st January 2016, notice was ordered to be served through substituted service and in pursuance of the said order, necessary publication was made in the news papers and proof thereof was filed on 15th February,2016. Thereafter, we heard the matters.
Civil Appeal No.4060 of 2009 and its connected matters have been heard and orders have been reserved on 16th March 2016. ……………………..
After giving our thoughtful and due consideration, we are of the view that the judgment delivered in Christian Medical College … needs reconsideration. We do not propose to give reasons in detail at this stage as to see that it may not prejudicially affect the hearing of the matters”.
…………………………..Suffice it is to mention that the majority view has not taken into consideration some binding precedents and more particularly, we find that there was no discussion among the members of the Bench before pronouncement of the judgment.
We therefore allow these review petitions and recall the judgment dated 18th July 2013 and direct that the matters be heard afresh. The review petition stand disposed of as allowed”.
The Re-call order is ‘per incurium’
5. It appears that the judges were of the view that the order of re-calling the judgment will not prejudicially affect the interests of the CMC. Further, when the Review petition was allowed, until the considered order is pronounced on the main case, status quo ante should continue. That apart, one of the important reasons for recalling the CMC judgment was that ‘some binding precedents were not followed’. But, the list of binding precedents that were not followed was not stated at all.
6. Further, it is also stated in the ‘recall order’ that “there was no discussion among the three judges before delivering the judgment”. This was a matter of ‘fact’. That fact could be known only to Justice Anil R. Dave, as he was one of the three judges who heard the matter. The other four judges had absolutely no knowledge of that fact. Under the circumstances, it is difficult to accept that the other four judges, who were not privy to that fact, had also endorsed that fact and signed the order. Therefore, the order also suffers from ‘mistake of fact’. Hence, there is an error apparent on the face of the order. Therefore, the‘re-call’ order, appears to be an order per incurium.
7. Further, by passing the recall order, the minority judgment of Justice Anil R. Dave has became the ‘majority’ judgment. This method is contrary to any known principle of Jurisprudence. The majority judgment in2013 held the NEET unconstitutional. But the recall order made the NEET constitutional.
C.M.C. case should have been clubbed with Modern Dental College case:
8. It is one of the axiomatic principles of jurisprudence that all cases pending before a court on an identical issue should be heard together. When the judgment in the CMC case was ‘recalled’ on the ground of pendency of “identical issue” the CMC case should have also been heard fully along with the said Civil Appeal no. 4060 of 2009, Modern Dental College and others Vs State of M.P. Instead, on 11-4-2016 the Five Judge Bench Recalled the Judgment under review. The judgment in Modern Dental College case was delivered only on 2-5-2016.
‘Sankalp Order’:
9. Immediately, one Sankalp Charitable Trust, whose object was only to give medical treatment to the poor, filed a PIL, only making UoI and CBSC as respondents. The prayer was to
“issue a writ of mandamus …….directing the respondents to conduct the National eligibility cum Entrance Examination(NEET)for admission to MBBS courses throughout the country for academic year 2016-17
That case came up for hearing on 27-4-2016 before a three Judge Bench headed by Justice Anil R. Dave. The Bench posted the matter to the very next day. On 28-4-2016, rejecting the arguments made by counsel of non parties to the PIL, mandamus was issued as prayed for.
LEGALITY OF THE ‘SANKALP ORDER’ Dated 28-4-2016:
10. Seldom, courts pass orders on such important matters in such haste, that too, on the penultimate day before the Summer Vacation of the S.C. The order stated that the judgment in Christian Medical College, Vellore “has already been recalled” therefore the “Notifications dated 21st December 2010 are in operation as on today”.
11. Thus NEET became compulsory, without even hearing the real stake holders. The three judge bench did not even taken noteof the existence of the T.N.Act 3 of 2007. Further, in the CMC case, the S.C. relied on the Judgment of the S.C. by the 11 Judges Bench in T. M. A. Pai Foundation case. In which the S.C. had considered all the relevant provisions of the Constitution including Articles 19(1)(g) and 29(2) of the Constitution, and the rights of the minority colleges, relating to admission of students to
its educational institutions, including the professional courses.
12. It has to be borne in mind that TMA Pai Foundation case was the culmination of fifty years of legal battle in courts, starting from Kerala education Bill case. on the rights of the minorities vis a vis the admission to the minority institutions, considered in the light of decision in TMA Pai Foundation case, the order passed in Sankalp Charitable Trust Case appears to be a ‘judgment per incurium’, that is, ‘through lack of due regard to the law or facts’.
Modern Dental College judgment:
13. The Five Judge Bench of the Supreme Court, headed by Anil R. Dave, in the Modern Dental college case, in paragraph 93, has held that:
Entry 66, List – I, ‘would not include conducting of examination etc. and admission of
students ………’. Such power is derived in so far as medical education is concerned, “by Parliamentary legislation in the form of Medical Council of India Act 1956 and by creating the statutory body like Medical Council of India…….”
14. It may be seen that the identical decision was rendered as early as 1994, in Ajaykumar Singh Vs State of Bihar [1994 SCC(4) 401]. The S.C. in paragraph 22 has said “Be that as it may, since we have held, agreeing with the holding in Nivedita Jain, that Entry 66 in List 1 does not take in the selection of candidates or of admission to institutions of higher education……” The earlier decision of State of M.P. Vs Nivedita Jain, the Supreme Court (Y.V. Chandrachud,C.J., A.Varadarajan and A.N.Sen) had held that “Regulation……. made by the Indian Medical Council …..does not have
any mandatory force”.
15. But, contrary to that, on 28-4 2016, in the ‘Sankalp’ order, justice Anil R Dave leading the bench of three judges has held, that the “Notifications dated 21-12-2010 were in operation” therefore it ‘would not be improper to hold NEET’. On 2-5-2016, on the day of the judgment in Modern Dental College Case, Sections 10D and 33(mb) MCI Act were not in the statute book. The MCI Amendment Ordinance No.4 of 2016 was issued by the President of India only on 24-5-2016.Those powers were not vested on the MCI on 28-4-2016, on the date of ‘Sankalp Order’. Under those circumstances the Sankalp Order, did not germane from the MCI Act. On that ground, also, the Sankalp Order appears, per incurium.
T.N Act 3 0f 2007 – valid even after 2-5-2016:
16. MCI Amendment Act 2016, Section 10D merely provides:-
“There shall be conducted a uniform entrance examination to all medical educational institutions at the under graduate level and post graduate level through such designated authority………..”.
Section 33 (mb) reads thus :-
“the designated authority, other languages and the manner of conducting of uniform entrance examination to all medical educational institutions at the under graduate level and post graduate level”
Only the Notification issued on 22-1-2018 in Clause 4 provides as follows:-
“4. Admission to Medical Course- eligibility criteria: No candidate shall be allowed to be admitted to the medical curriculum proper of first Bachelor of Medicine and Bachelor of Surgery course until he/she has qualified the National Eligibility cum Entrance Test until ……(1A) He / She has obtained a minimum marks in National Eligibility –cum Entrance Test ……………”.
Inasmuch as no other Notification was issued after 11-4-2016, till 22-1-2018, the T.N. Act 3 of 2007 was holding the field of admission of students to medical courses in T.N. till 22-1-2018. Under those circumstances the procedure adopted in the year 2017, making NEET compulsory appears neither legal nor valid.
Constitutional validity of Section 10D, needs to be challenged:
The MCI Amendment Act 2016 should have been challenged as ultra vires the Constitution. But no one, till date, has challenged the Constitutional validity of the amendments.
Notification cannot get retrospective Legislative sanctity.
17. The next question that arises is, will not the MCI Amendment Act that included Sections 10D and 33(mb), on 24-5-2016, confer retrospective legislative sanctity? The Medical Council of India Amendment Notification dated 22nd January 2018 –Preamble- paragraph 1 reads thus:
……………Indian Medical Council (Amendment) Act 2016 has inserted Section 10D and Section 33(mb)….By virtue of this Amendment Parliament has provided legislative sanctity to the National Eligibility-cum Entrance Test ….included in the Graduate Medical Education Regulations,1997 by Amendments notified in the Official Gazette on 27th December 2010 , February 2012, and 23rd 2013.
This is not a correct statement of the law. A Regulation/ notification is only an executive order passed exercising a power conferred by a statute. In the absence of legislative authority, the executive order would be invalid, it may even be termed as ‘still-born’. To such a still born order ‘life’ cannot be infused on a later day by conferring the required authority. To become valid, the Notification shall be issued afresh. The ‘Doctrine of Eclipse’ does not apply to executive orders and regulations. Any executive action will only have prospective validity. Therefore the above statement of law made in the Preamble to the Notification 2018 will not have the effect of conferring legal sanctity to the Notifications issued between 2010 and 2013.
NEET – legally becomes mandatory only from 22-1-2018:
18. MCI Amendment Ordinance 2016, 24th May 2016; it became the Act 39 of 2016 on 4th August 2016. Section 10D and Section 33 (mb) were added to the MCI Act. Section 10D reads thus: “There shall be conducted a uniform entrance examination to all medical educational institutions………..” Section 33 (mb) expands the Rule making power of MCI. Neither of these provisions makes NEET compulsory for admission to medical courses. Only the Notification issued on 22-1-2018 makes NEET compulsory.
NEET conducted in 2017 not legal – in Tamil Nadu:
19. It can be seen that there was no valid legal Notification making NEET compulsory till 22 -1 2018. Under the circumstances the admission process adopted in 2016 and 2017 appear to be illegal, as it was not supported by any valid law or Rule.
T.M.A.Pai foundation explained in P.A.Inamdar case:
20. Matters relating to admission of students to any University courses cannot ignore the decision in T.M.A. Pai Foundation case, rendered by 11 Judges Bench. The Sankalp decision appears to be contrary to the decision of T.M.A. Pai Foundation Case
21. That apart, on the date of Sankalp Order(28.4.2016), T.N. Act No.3 of 2006 was in force. It was a law made by T.N. Assembly assented by the President of India. Under the proviso to Article 254(2) of the Constitution, only a subsequent “Law” made by Parliament can make the T.N. Act unenforceable. The Notification dated 21-12-2010 was not a “law” made by Parliament. Therefore, the proviso to Article 254(2) does not come to play. Therefore, on the date of Sankalp Order, T.N. Act 3 of 2007 held the field relating to admission of students to medical courses in T.N. Therefore the Sankalp order appears not a good law.
No exemption for any institution:
22. Further, assuming that Section 10D read with Section 33(mb) make NEET mandatory, it becomes mandatory for ‘all medical educational institutions”. That is, NEET becomes compulsory for admission to all medical institutions. No exemption whatsoever can be granted either by the MCI or by the Central Government, to any medical educational institution. The Central Government has not been conferred with such power to make any exemption. But, it is said that, JIPMER, AIIMS, and a few other medical institutions are conducting entrance examination of their own. That is impermissible and illegal. There is violation of Rule of law. MCI has not taken any steps against those institutions. It may even be said that MCI administers with an “evil eye and unequal hands’, which violates equality clause, as held in 1896 by USSC in Yick Wo Vs Hoppkins. That principle applies in India as well.
T.N.Dr. M.G.R.Medical University Act:
23. There is yet another legal infirmity in the orders passed by the S.C. In T.N. Medical education is being regulated by the T.N. Dr. M.G.R. Medical University Act. As per the State List – Entry 32, an university can be established or regulated only by a law made by a State legislature. At the same time, Entry 44 Union List I prohibits, the Central Government from establishing or regulating Universities. That is Universities can be regulated only by the State Governments. Central Government cannot regulate universities. Method of admission to medical courses in the affiliated Medical colleges in T.N is specifically provided for under Section 35 of the T.N.Dr. M.G.R. Medical University Act.
24. Inasmuch as Union Government is prohibited from regulating any university established by a State Act the Union Government is prohibited from regulating the method of admission in T. N. Dr. M.G.R. Medical University, established by the State of T.N.. Therefore neither the Union Government nor the MCI can interfere with the admission process or method of admission to any medical college affiliated to the T.N. Dr. M.G.R. Medical University. That is so even after the Notification of MCI on 22-1-2018. The T.N. Govt. is duty bound to defend its own law and to see that NEET is not thrust on the T.N. students. It is difficult to understand why T.N. Govt. is starting coaching centres to help the students of Tamil Nadu.
Conclusion:
25.(i) For the reasons enumerated in the foregoing paragraphs, NEET cannot be made compulsory, by the Central Government even after amendments made to MCI Act in 2016 and the Notification issued on 28-1-2018, for admitting students to any of the medical courses in the colleges affiliated to T.N. Dr. M. G. R. Medical University. That can be established by moving the S.C through appropriate proceedings and putting the arguments effectively before the S.C. Individuals alone cannot fight the issue before the S.C.
(ii). In order to get exemption for admission to the non affiliated colleges, T.N. Govt must take effective steps to get the president’s assent to the two Acts it has passed in 2017. Otherwise, deserving students from all sections of T.N. will not get admission to medical colleges situated in Tamil Nadu.
(iii).The Government of Tamil Nadu should take effective steps to get the President’s Assent for the Acts passed in 2017 by the T.N.Assembly.
[Speech delivered at Chennai – Periyar Thidal on 27th February 2018]
