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Kerala High Court · body

2013 DIGILAW 1084 (KER)

A. M. Abdul Gafoor v. Calicut University

2013-12-05

K.VINOD CHANDRAN

body2013
Judgment : 1. The writ petitions are filed by students who have been admitted to the management seats in self-financing Colleges carrying on B.Ed. course in various subjects, affiliated to the University of Calicut. Essentially the challenge of the petitioners is against the prescription in the Prospectus for Admission to B.Ed. Courses, 2012 (Kerala) under Clause 5.2.1.(iv), which reads as under: “The minimum requirement of marks for admission to B.Ed. Courses is 50% (No rounding off of the percentage of marks to the nearest whole number is permitted) in Bachelor's Degree (Science/Arts Subjects) for Part III or 50% Marks in M.A./M.Sc./M.Com. Details are given in Clause 5.4.2”. 2. The petitioners are all graduates in different subjects, who applied for and were admitted to management quota seats, in the various colleges affiliated to the respondent-University. The challenge is against prescription of minimum requirement of 50% marks for Part III, i.e., the Main and Subsidiary subjects, as against the prescription of the National Council for Teacher Education (for brevity “NCTE”), which speaks only of the requirement of 50% in graduate studies. Admittedly the students who were admitted to the merit seats, as per the rank list published by the agency entrusted with the recruitment process, are students who obtained 50% marks in Part III subjects alone. The petitioners' claim is that in making admissions to the management seats, the respondent-Colleges could act according to their whim so long as they comply with the NCTE Regulations. 3. In fact, the very same issue came up before this Court in two writ petitions, wherein the petitioners were similarly disabled for reason of not having 50% marks in Part III; but had obtained 50% aggregate marks in the graduate level. The claim made therein was that the prescription now attempted by the University itself, is in fact a lowering of standards and would go against the judicially recognized principle that no University, in fixing standards for admission, could go against the specific norms prescribed by the apex body; in the present case the NCTE. This Court answered the issue so in paragraphs 7 to 10 of the judgment dated 07.11.2013 in W.P.(C).Nos.9653 and 9722 of 2013: “7. The primary fallacy in such a contention is that one has to read the word 'aggregate' into the norms prescribed by the NCTE. This Court answered the issue so in paragraphs 7 to 10 of the judgment dated 07.11.2013 in W.P.(C).Nos.9653 and 9722 of 2013: “7. The primary fallacy in such a contention is that one has to read the word 'aggregate' into the norms prescribed by the NCTE. The petitioners' contention is that the prescription of 50% mark for Part III is a lowering of standards which is not permissible, since NCTE prescribes 50% aggregate. The University has explained the prescription in its counter affidavit as follows: “In the State of Kerala, degree courses offered are in three parts, namely Part-I, II and III. Among the three Part-III deals with optional subjects which is the most crucial in so far as further education or otherwise on the basis thereof is concerned. Therefore, the Academic Council has fixed 50% marks for Part III optional subjects at graduation wherever graduation is considered as the eligibility criteria for admission to the B.Ed course. It is a well settled proposition of law that the State Government and/or the affiliating University can fix standards higher than that fixed by the Apex body”. The Bachelors degree awarded is in the subject concerned and the eligibility for admission to B.Ed in the same subject would, necessarily, have to be based on the marks in the relevant subject. 8. The contention of the University seems to be very reasonable. The B.Ed course in which the petitioners have now obtained admission is in English Language and Literature. Their graduate studies were also in the English Language and Literature. The main subject with subsidiaries is included in Part III and English and Regional Language are imparted as Part I and Part II respectively; which is common for all graduate students. Part III is the main subject in which a candidate is awarded a degree and the B.Ed course is pursued to acquire eligibility for employment as tutors/teachers in that main subject, which is offered for graduate study. It is quite reasonable if the academic body prescribes a higher percentage for the Part III subjects, the main subject and subsidiary subjects. It is also pertinent that the main subject is the subject in which the graduate degree is awarded and the subject pursued in the B.Ed course. 9. The question with respect to standards i.e. whether it be lowering or raising, has to be decided on this background. It is also pertinent that the main subject is the subject in which the graduate degree is awarded and the subject pursued in the B.Ed course. 9. The question with respect to standards i.e. whether it be lowering or raising, has to be decided on this background. On a reading of the standards prescribed by the NCTE and the University , the only possible inference is that providing for 50% marks in the main and subsidiary subjects of graduate study would only be a raising of standards. If it be a higher standard prescribed by the University, then, the same is not liable to be challenged going by the binding precedent in (2011) 4 SCC 606 (Visveswaraiah Technological University v. Krishnendu Halder). The Honourable Supreme Court after quoting from a Constitution Bench decision in Preeti Srivastava (Dr.) v. State of Madhya Pradesh [ (1999) 7 SCC 120 ] held as follows : “Once the power of the State and the examining body, to fix higher qualifications is recognized, the rules and regulations made by them prescribing qualifications higher than the minimum suggested by AICTE, will be binding and will be applicable in the respective State, unless AICTE itself subsequently modifies its norms by increasing the eligibility criteria beyond those fixed by the University and the State”. 10. In the teeth of the binding precedents as also the findings of this court, the condition prescribed by the University is definitely raising of standards. An apparent conflict is perceived in the present case, since the main subject for graduation and that for which B.Ed was pursued are both English. At the graduate level, English language and literature is the main subject and Part I also is a paper in English. While Part I is common to all graduate studies and the test is of language skills; the examination in Part III subjects test the subject proficiency of a student. As per Ext. P7, students who opted any other subject in graduation can also seek admission to B.Ed English; if they have a postgraduation in English with 50% as also 50% in Part I English for graduation. This indents clear application of mind by the academic body in deciding the basic eligibility criteria for B.Ed. One has also to look at a different situation of another subject, to better understand the prescription. This indents clear application of mind by the academic body in deciding the basic eligibility criteria for B.Ed. One has also to look at a different situation of another subject, to better understand the prescription. If a graduate in Physics is seeking admission for B.Ed in that subject, can it be said that the aggregate marks including that of languages would be prescription of a higher standard than the prescription of minimum marks for the main and subsidiary subjects? Definitely the answer would be in the negative”. With respect to the issue of prescription of standards, the aforesaid judgment, rendered by this Court covers the issue. 4. However, the learned counsel for the petitioners in these cases raise two other contentions. The first contention is with respect to Exhibit P3, which is a proceeding of the Principal Secretary to Government issued to the 4th respondent, Director of Collegiate Education. It is contended that Exhibit P3 is a binding order and ought to have been complied with by the Controller of Examinations while preparing the Prospectus. The binding direction issued in Exhibit P3 was given a complete go-by, by the agency who prepared the Prospectus on the directions of the 4th respondent, is the contention. The second contention is that the petitioners are all students who have been admitted to the management quota and, hence, are not covered by the Prospectus. It is to be noticed that the above grounds are mutually destructive, in so far as the first plea goes on the premise that even management quota is covered by the Prospectus. 5. Looking at Exhibit P3, it cannot be said that it is an order passed by the Principal Secretary to Government and issued to the Director of Collegiate Education. Even going by Exhibit P3, it is only a request that the NCTE Regulation of 50% marks “at the level of graduation/at the level of post-graduation” be made a requirement for admission to the B.Ed. courses. In fact, nothing is pointed out as to the authority of the Principal Secretary to issue any directions to the Director of Collegiate Education. In such circumstance, Exhibit P3 can at best be considered as a request made by the Principal Secretary on the representations made by the managements of the various training colleges in the self-financing sector, affiliated to the University. 6. In such circumstance, Exhibit P3 can at best be considered as a request made by the Principal Secretary on the representations made by the managements of the various training colleges in the self-financing sector, affiliated to the University. 6. It is also pertinent that the request made by the Principal Secretary was considered with due weight in the deliberations while preparing the Prospectus, as is evidenced from paragraphs 5 and 6 of the counter affidavit dated 31.10.2013 filed by the State, which is extracted herein below: “5. To the averments in paragraph eight, it is submitted that in view of the representation received from Unaided Training College Management Association, Government of Kerala reviewed and modified the eligibility criteria by GO 32118/B4.11.H Edn. dated 10-04-2012. As per the G.O. the qualification for B.Ed. admission was fixed as 50% mark in Degree/50% in Post Graduate. 6. To the averments in paragraph nine, it is submitted that at the time of preparation of the prospectus for admission for B.Ed. courses in colleges in Kerala the State Government went through the minimum Educational Qualification criteria in detail with reference to the issue raised from different corners and came to the conclusion to revise the minimum Educational Qualification. Since education comes under the concurrent list of the Constitution of India the State Government has every right to change the educational qualification in accordance with the policy of the State Government. Hence the interpretation as “mistake” by the petitioners is irrelevant. The prospectus so issued in 2012-13 (sic 2012-12) by the 4th respondent is a notification s valid Government approval (GO Rt No.1359/2012/H.Edn dated 30.06.2012)”. 7. On a reading of the counter affidavit and Exhibits P2 and P4, what is discernible is that earlier the essential qualification for B.Ed. was a Bachelors Degree with 50% marks in aggregate or M.Com. (Clause 5.2.1.(iv)) of Exhibit P2. Hence, only graduates having 50% in Arts or Science subjects could apply for B.Ed. and Commerce students had to possess a post-graduate qualification. Considering the representation of Private College Managements the field was expanded including candidates who had 50% marks in the Post-Graduate discipline. Hence a graduate who did not have 50% aggregate could aspire for B.Ed. if he/she acquires a post-graduation with 50% marks. This was prescribed by Government Order dated 10.04.2012. and Commerce students had to possess a post-graduate qualification. Considering the representation of Private College Managements the field was expanded including candidates who had 50% marks in the Post-Graduate discipline. Hence a graduate who did not have 50% aggregate could aspire for B.Ed. if he/she acquires a post-graduation with 50% marks. This was prescribed by Government Order dated 10.04.2012. But on further deliberations, the Government decided to insist on 50% for Part III as far as graduates are concerned, by Government Order dated 30.06.2012. The Government has considered the request made by the Principal Secretary on the basis of the representations made by the managements and had partly allowed the same permitting post-graduates having 50% to seek admission to B.Ed. course in the relevant subject; while deciding to insist upon 50% marks in Part III subjects at the graduate level. Evidently the Government, entrusted with the duty of prescribing the qualifications to B.Ed. courses, has prescribed the above requirement of 50% marks in Part III graduate examinations as also the additional eligibility criteria of post-graduates who have 50% marks in the relevant subjects. In such circumstance, no reliance can be placed on Exhibit P3 to contend that it is an order of the Government which is to be mandatorily complied with by the Director of Collegiate Education. 8. The petitioner's contention that the State could not have deviated from the NCTE norms is curiously confined in its alleged applicability, to only the management quota students. Needless to say that a different criteria of eligibility prescribed in the management seats and the merit seats would lead to a sustainable plea of discrimination; which cannot be permitted by the Constitutional scheme and the specific dictate of Article 14. It is also to be noticed that the Hon'ble Supreme Court has time and again considered the effect of Regulations issued by the apex bodies of education constituted by Statute, invoking powers under Entry 66 List I of Seventh Schedule of the Constitution of India as against the prescription of qualifications made by the State Government or the academic bodies under the Universities, invoking powers under Entry 25 of List III of Seventh Schedule of the Constitution. It has also been judicially recognized that the State Government or the University has the capacity to augment the qualifications and prescribe higher standards than that prescribed by the apex body. It has also been judicially recognized that the State Government or the University has the capacity to augment the qualifications and prescribe higher standards than that prescribed by the apex body. In the present case, as has already been held, the prescription of 50% minimum in Part III at the graduate level is to be deemed, only as a prescription of higher standards. 9. In the absence of any legislation issued by the State, the prescription of requirement of 50 marks in Part III subjects, by a valid Government Order, has to be taken as a valid executive action made under Entry 25 of List III of Seventh Schedule of the Constitution of India. A similar Government Order was the subject of challenge in Dr.Ambesh Kumar v. Principal, L.L.R.M. Medical College [1986 (Supp) SCC 543]. It was held so by the Hon'ble Supreme Court: “19. The State Government can in exercise of its executive power make an order relating to matters referred to in entry 25 of the Concurrent List in the absence of any law made by the State legislature. The impugned order made by the State Government pursuant to its executive powers laying down the eligibility qualification for the candidates to be considered on merits for admission to the post-graduate courses in Medical Colleges in the State, is valid and it cannot be assailed on the ground that it is beyond the competence of the State Government to make such order provided it does not encroach upon or infringe the power of the Central Government as well as the Parliament provided in entry 66 of List I. xxx xxx xxx 21. The impugned Government Order dated December 15, 1982 lays down the criteria or eligibility qualification, i.e., obtaining of 55 per cent marks by candidates seeking admission in the post-graduate degree course and obtaining 52 per cent marks by candidates seeking admission to post-graduate diploma course for being considered for selection. The impugned Government Order dated December 15, 1982 lays down the criteria or eligibility qualification, i.e., obtaining of 55 per cent marks by candidates seeking admission in the post-graduate degree course and obtaining 52 per cent marks by candidates seeking admission to post-graduate diploma course for being considered for selection. Entry 25 confers on the State Government as well as the State legislature the powers to make orders in respect of matters mentioned in entry 25 of List III of the Seventh Schedule to the Constitution, i.e.,with regard to medical education the onluy limitation being that such order of the State legislature will be subject to the provisions of entry 66 of List I, i.e., Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. The order in question merely specifies a further eligibility qualification for being considered for selection for admission to the post-graduate courses (degree or diploma) in the Medical Colleges in the State in accordance with the criteria laid down by Indian Medical Council. This does not in any way encroach upon the Regulations that have been framed under the provisions of Section 33 of the Indian Medical Council Act. On the other hand in order to promote and further the determination of standards in institutions for higher education, the State Government who runs these colleges provide an additional eligibility qualification”. 10. The petitioners, who were all management students, cannot claim that they, who do not satisfy the higher standards prescribed by the State, ought to be admitted and allowed to continue in the respondent-Colleges, for reason only of their having been admitted under the management quota. In (2011) 4 SCC 606 the contention was specifically that the eligibility criteria prescribed for admission to “Government seats” will not apply to the candidates admitted directly by the managements of colleges. While reiterating the established principle that the State is competent to fix higher qualifications than the minimum suggested by the apex body (in that case AICTE), the Court found that by reason only of the seats remaining unfilled it cannot be said that the minimum lower standard prescribed by the AICTE should be made applicable and not the higher standard prescribed by the State. It was held so in paragraph 15: “Fixing of higher standards, marginally higher than the minimum, is seldom the reason for seats in some colleges remaining vacant or unfilled during a particular year. Therefore, a student whose marks fall short of the eligibility criteria fixed by the State/University, or any college which admits such students directly under the management quota, cannot contend that the admission of students found qualified under the criteria fixed by AICTE, should be approved even if they do not fulfil the higher eligibility criteria fixed by the State/University”. 11. The learned counsel for the petitioners also contended that the marks in examinations may not be a definite indicator of teaching capabilities; which ultimately is the object sought to be achieved by teacher-training courses. It has to be conceded going by general principles, the said proposition cannot be doubted. Vagaries of life have often placed the best in the back-seat and the average at the pinnacle. However life's philosophies cannot be bodily imported and form the basis of legal adjudication. Dr.Preeti Srivastava (supra) found that “intelligence and ability can be found anywhere, but not in every one”. How does an academic body go about finding that 'spark in individuals'? Dr.Preeti Srivastava (supra) considered an identical contention so: “48. In this connection, our attention is also drawn to the emphasis placed in some of the judgments on the fact that since all the candidates finally appear and pass in the same examination, standards are maintained. Therefore, rules of admission do not have any bearing on standards. In Ajay Kumar Singh v. State of Bihar [ (1994) 4 SCC 401 ] this Court, relying on Nivedita Jain [ (1981) 4 SCC 296 ] said that everybody has to take the same postgraduate examination to qualify for a postgraduate degree. Therefore, the guarantee of quality lies in everybody passing the same final examination. The quality is guaranteed at the exit stage. Therefore, at the admission stage, even if students of lower merit are admitted, this will not cause any detriment to the standards. There are similar observations in Post Graduate Institute of Medical Education & Research v. K.L.Narasimhan [ (1997) 6 SCC 283 ]. This reasoning cannot be accepted. The final pass marks in an examination indicate that the candidate possesses the minimum requisite knowledge for passing the examination. A pass mark is not a guarantee of excellence. There are similar observations in Post Graduate Institute of Medical Education & Research v. K.L.Narasimhan [ (1997) 6 SCC 283 ]. This reasoning cannot be accepted. The final pass marks in an examination indicate that the candidate possesses the minimum requisite knowledge for passing the examination. A pass mark is not a guarantee of excellence. There is a great deal of difference between a person who qualifies with the minimum passing marks and a person who qualifies with high marks. If excellence is to be promoted at postgraduate levels, the candidates qualifying should be able to secure good marks while qualifying. It may be that if the final examination standard itself is high, even a candidate with pass marks would have a reasonable standard. Basically, there the inputs - calibre of students, calibre of teachers, teaching facilities, hospital facilities, standard of examinations etc. that will guarantee proper standards at the stage of exit. We, therefore, disagree with the reasoning and conclusion in Ajay Kumar Singh v. State of Bihar and Post Graduate Institute of Medical Education & Research v. K.L.Narasimhan”. 12. The educational system has been one of the most dynamic and expanding systems of human civilization and the methodology of evaluation by examinations one of the most time-tested. The scheme of examinations as an acceptable benchmark has survived the trials set by inspired academicians and evolved despite the die-hard conventionalists. It is trite that in matters such as this, requiring expertise, whether it be academic, scientific, technical or financial, the Courts would be loathe to interfere and substitute its own reasonableness. In the instance case, no amount of soul searching could present a prudent man with a more reasonable and widely accepted system; notwithstanding the pit falls. In the matter of assessing merit, for sheer want of a better system, the contention of the learned counsel fails. 13. In the light of the aforesaid findings, the writ petitions are found to be devoid of merit. All the petitioners were admitted to the respondent-Colleges on the strength of the interim orders passed by this Court and they were admitted to the 1st Semester examinations also on the basis of the interim orders passed by this Court, which clearly indicated that such admissions are provisional and subject to the result of the writ petitions. All the petitioners were admitted to the respondent-Colleges on the strength of the interim orders passed by this Court and they were admitted to the 1st Semester examinations also on the basis of the interim orders passed by this Court, which clearly indicated that such admissions are provisional and subject to the result of the writ petitions. The interim orders also recorded an agreement by the affiliated colleges that they were ready and willing to admit the students. It is not known as to on what basis, the Colleges agreed to admit the ineligible students. There is an increasing tendency to admit ineligible candidates to courses; especially with the mushrooming of academic centres, to somehow fill up the seats, with an eye on the fee paid by the student, and then approach Courts on one pretext or another. The admissions obtained provisionally are sought to be regularized later, on claims of equity, which practise has been deprecated by the Hon'ble Supreme Court in the decision reported in K.S.Bhoir v. State of Maharashtra [(2001) 10 SCC 264]. In that decision Supreme Court drew a distinction between adjusting equities under Article 226 and the High Court assuming the role of the Government or the Medical Council of India and cautioned the Courts from waiving the mandatory requirement of law in exercise of its extraordinary power and directing an authority to act contrary to statutory prescriptions. In the context of the writ petitions having been found to be devoid of merit, needless to say that the petitioners are not entitled to continue in the respective courses. The students too are unaware of the true import of a provisional order and are the victims of an insensitive system. It is for the Universities to take action against such erring institutions affiliated to them. The writ petitions are dismissed with the above observations.