Madras High Court
K.Nagarajan vs Union Of India on 13 July, 2021
W.P.No.13384 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.07.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.No.13384 of 2021
K.Nagarajan .. Petitioner
Vs.
1.Union of India,
rep. By its Secretary,
Ministry of Health and Family Welfare,
New Delhi 110001
2.State of Tamil Nadu,
rep. By its Principal Secretary,
Health and Family Welfare (MCA-1) Department,
Fort St.George, Chennai 9 .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari to call for the records on the file of the
2nd respondent in proceedings G.O.(MS)No.283 dated 10.06.2021 and
to quash the same.
For Petitioner : Mr.V.Raghavachari,
for M/s.Gupta and Ravi
For Respondents : Mr.R.Sankaranarayanan,
Assisted by
Mr.R.Rajesh Vivekananthan,
for 1st respondent
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W.P.No.13384 of 2021
Mr.R.Shunmugasundaram,
Advocate-General,
Assisted by
Mr.P.Muthukumar,
Counsel for State,
for 2nd respondent
Implead petitions
W.M.P.No.14810/2021 : Mr.P.B.Suresh Babu
W.M.P.No.14811/2021 : Mr.P.B.Suresh Babu
W.M.P.No.14836/2021 : Dr.A.Thiagarajan, Senior Counsel,
for Mr.D.Veerasekaran
W.M.P.No.14842/2021 : Mr.K.Chandramohan
W.M.P.No.15121/2021 : M/s.M.N.Sumathy
W.M.P.No.15125/2021 : Mr.R.Barnabas
W.M.P.No.15134/2021 : Mr.A.Mohan
W.M.P.No.14845/2021 : M/s.V.Jeevagiridharan
W.M.P.No.14849/2021 : Ms.S.Deepika
W.M.P.No.15065/2021 : Ms.A.Arulmozhi
W.M.P.No.15274/2021 : Mr.P.B.Suresh Babu
W.M.P.No.15360/2021 : Mr.R.Abdul Mubeen
for M/s.A.Raja Mohamed
W.M.P.No.15379/2021 : Mr.Ajmal Khan, Senior Counsel,
for M/s.A.Abrar Ahamed
W.M.P.No.15404/2021 : Mr.R.Natarajan
W.M.P.No.15410/2021 : Mr.A.V.S.Madhusudhan
W.M.P.No.15419/2021 : Mr.P.Neelakantan
W.M.P.No.15420/2021 : M/s.I.Abdul Basith
W.M.P.No.15421/2021 : M/s.V.P.Sengottuvel
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W.P.No.13384 of 2021
W.M.P.No.15422/2021 : M/s.S.Kumaresan
W.M.P.No.15434/2021 : Dr.G.Babu
W.M.P.No.15449/2021 : Mr.A.Nowfil
W.M.P.No.15451/2021 : M/s.R.Thirumoorthy
W.M.P.No.15471/2021 : Mr.G.Karthikeyan
W.M.P.No.14646/2021 : Mr.P.Wilson, Senior Counsel,
for M/s.P.Wilson Associates
W.M.P.No.14756/2021 : Mr.G.Nanmaran
W.M.P.No.14765/2021 : Mr.Adithyaraj
W.M.P.No.14780/2021 : Mr.S.Prabhakran, Senior Counsel,
for M/s.S.Arunachalam Associates
ORDER
(made by the Hon'ble Chief Justice)
The writ petition, filed in public interest, is to challenge a
notification bearing G.O.Ms.No.283 dated June 10, 2021 by which a
“High Level Committee” has been constituted by the State. The prayer
in the writ petition is squarely to quash the notification on the ground
that it is “unconstitutional, illegal, unfair and without legal
justification”.
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W.P.No.13384 of 2021
2. By the said notification, the State has constituted a committee
headed by a retired High Court Judge to undertake such work as is
indicated in the terms of reference. Clause (a) of paragraph 3 of the
notification outlines the contours of the work to be undertaken by the
“High Level Committee”:
“(a) The High Level Committee will study whether
the National Eligibility-cum-Entrance Test (NEET) based
admission process has affected the socially backward
students in the past few years, if it has affected them, then
the Committee will study the issues involved and suggest
alternative admission procedures which would benefit all
students, the feasibility of implementing such alternative
admission procedures and the legal steps to be undertaken
to implement such fair and equitable methods.”
3. The commission is to submit its report to the Government
within a month. Though a month has elapsed, it is not known whether
the commission has already filed its report or, true to the usual nature
of such commissions, a month may stretch to several years and
decades.
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W.P.No.13384 of 2021
4. The writ petitioner apprehends that the issuance of the
notification is the first step in a process that the State has embarked
on to subvert the procedure for admission to medical educational
institutions in this State. Indeed, when the petition was admitted, an
impression was given to the court that the very constitution of the
commission flies in the face of Supreme Court orders and it may be
altogether useless for the commission to undertake the task that the
Government notification requires it to do.
5. The writ petitioner relies on several judgments of the
Supreme Court, including the one reported at (2016) 7 SCC 353
(Modern Dental College and Research Centre vs. State of Madhya
Pradesh) and a more recent decision reported at (2020) 8 SCC 705
(Christian Medical College vs. Union of India), to assert that the matter
is no longer open to question and has been conclusively pronounced
upon by the Supreme Court: that it is the sole prerogative of the Union
to set standards for higher education. The petitioner says that
pursuant to the Supreme Court judgment in Modern Dental College
and Research Centre, the National Medical Commission Act, 2019
came to be enacted. Such statute declares that it provides for a
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W.P.No.13384 of 2021
medical education system that, inter alia, helps to improve access to
quality and affordable medical education. Section 10 of the Act
provides for a commission to be appointed, inter alia, to “lay down
policies for maintaining a high quality and high standards in medical
education and make necessary regulations in this behalf”. Section 11
of the Act provides for the constitution of an advisory body known as
the ‘Medical Advisory Council’ by the Central Government. Such
provision also indicates the personnel who would constitute the Medical
Advisory Council. Section 14(1) of the Act is of paramount importance
in the present context. It is necessary to notice such provision:
“14. (1) There shall be a uniform National Eligibility-
cum-Entrance Test for admission to the undergraduate and
postgraduate super-speciality medical education in all
medical institutions which are governed by the provisions
of this Act:
Provided that the uniform National Eligibility-cum-
Entrance Test for admission to the undergraduate medical
education shall also be applicable to all medical institutions
governed under any other law for the time being in force.”
6. The other sub-sections in Section 14 of the Act require the
NEET to be conducted in English and other languages as may be
specified by regulations. The statutory body constituted under Section
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W.P.No.13384 of 2021
11 of the Act is required to specify by regulations the manner of
conducting common counselling. In short, the process of admission to
all medical educational institutions would be governed by NEET and
NEET would be conducted under the supervision of the Medical
Advisory Council constituted by the Central Government in terms of
Section 11 of the Act of 2019.
7. There appears to be little doubt that the procedure prescribed
for admission in the said Act is the only process by which candidates
can gain admission as students to obtain medical education in any
medical institution imparting such education.
8. According to the petitioner, governments in this State are
given to try and disturb the established procedure and the petitioner
refers to a letter dated February 18, 2017 issued by the State to the
Ministry of Home Affairs regarding the admission to MBBS and BDS
courses in the State in terms of a Bill which was passed by the State
Legislative Assembly. The petitioner says that even the latest Supreme
Court pronouncement in Christian Medical College would indicate that
the State had no power in such regard. Indeed, the petitioner
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W.P.No.13384 of 2021
specifically refers to an emphatic order of the Supreme Court of
August 22, 2017 passed on a matter arising out of this Court. The
order must be seen in its entirety:
“It is submitted by Mr.Tushar Mehta, learned
Additional Solicitor General that the Union of India has
decided not to bring out an Ordinance. In view of the
aforesaid, the State of Tamil Nadu shall carry out the
judgment passed by the High Court and affirmed by this
Court. The competent authority shall publish the result of
NEET examinations and thereafter proceed with the
counselling. Time for counselling is extended till 4th
September, 2017. The extension of time is meant for
every category of seats in the Institutions/Universities
situate within the State of Tamil Nadu. Needless to clarify
that the State of Tamil Nadu shall not make any kind of
distinction or discrimination between the examinations
conducted by various Boards; and admission shall be
effected as per the result of the NEET examination.”
9. The substance of the petitioner’s submission is that since it
has now been concluded by the Supreme Court, no less, that it is the
Parliament which has the exclusive authority over the matter and an
Act of Parliament governs the field of admission to medical colleges all
over the country, the perception of the State cannot alter the position.
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W.P.No.13384 of 2021
The petitioner questions the very need to constitute a commission to
undertake any study or other work since there may be no sequitur to
the same.
10. A closer reading of the impugned notification reveals that
though a high-powered committee or commission has been
constituted, the report would only be submitted to the Government
and the report would also indicate alternative admission procedures
and “the legal steps to be undertaken to implement such fair and
equitable methods”.
11. The setting up of the commission does not amount to
subverting any process of admission, far less an act of defiance to any
order passed by the Supreme Court or even the remotest challenge to
the exclusive authority of the Union to enact a law and conduct a
procedure in a field which is constitutionally designated to be
undertaken only by the Union. The notification does not indicate the
purpose for setting up the commission except that the findings of the
commission may reveal that students studying in government schools
in the State and hailing from the socially backward and economically
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W.P.No.13384 of 2021
weaker sections may be disadvantaged in taking the NEET
examination.
12. The setting up of the commission can, by no stretch of
imagination, be seen to be contrary to any Supreme Court order,
whether in letter or spirit, or as a counter to any legislative action
taken by the Union or process put in place. For all we know, the
commission may come up with some material that the State
Government may use to persuade the Union to search for an
alternative or modify the process to make it more inclusive for
students belonging to the socially backward and economically weaker
sections to participate therein with a better chance of success.
13. The other point of view is equally possible: that the way
forward for students of the State to compete favourably with others in
the NEET examinations may be to raise the standard of school
education in the State. It is a question of policy as to whether the bar
has to be raised at the school level or the bar has to be lowered at the
medical college admission level and such matters of policy are resolved
by discussion and any attempt at mature resolution begins with
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W.P.No.13384 of 2021
lending the ear and being receptive to the other point of view. A
section of citizens may feel that it is a waste to appoint a commission;
that the costs incurred in maintaining such commission may be better
used to provide relief to those who suffered in course of the pandemic.
But these are choices that an elected Government has to take and,
indeed, in the constitutional scheme, has the freedom to take. Courts
cannot rush in and interdict notifications or steps taken pertaining to
policy or for garnering public opinion or the like.
14. If the issuance of the notification was in any manner
perceived to be an affront to the authority of the Supreme Court under
Article 141 of the Constitution or in derogation of the obligation of the
State to aid the implementation of an order of the Supreme Court
under Article 144 of the Constitution or as an alternative to a national
procedure for entrance examination conducted in accordance with a
Parliamentary legislation in a field open only to the Parliament, the
court’s immediate interference would have been necessary. But
nothing of such kind can be apprehended or reasonably seen to be the
effect of the notification or the constitution of the commission thereby.
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W.P.No.13384 of 2021
15. The Union is represented and learned Solicitor-General has
intervened to refer to Articles 162, 245, 254 and 256 of the
Constitution. However, the issuance of the impugned notification has
nothing to do with the provisions of the Constitution cited. The
issuance of the notification does not exceed the authority of the State
Government. As long as the State Government does not do anything to
upset the procedure for admission to medical institutions as
established by law, it does not call for any interference. A
constitutional court's allegiance to the rule of law needs to be
tempered by the respect for the democratic process. Overzealous
obeisance to what is perceived to be the rule of law invites an
avoidable clash that partners in the sovereign exercise must guard
against.
16. Several bodies, individuals, political parties and others
interested have applied for being impleaded. None has been called
upon, not even the State. The scope of the petition is limited and it is
not the business of the Court to play to the galleries by allowing or
indulging in discussion which is beyond the scope of the lis or wider
than the perceived malady that is sought to be arrested by the action,
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W.P.No.13384 of 2021
public interest or otherwise.
17. For the reasons aforesaid, W.P.No.13384 of 2021 is
dismissed with the observation that the scope of the impugned
notification is not such that it impinges on the conduct of NEET
examinations or the authority of the designated body to conduct the
same in accordance with law. There will be no order as to costs.
18. As a consequence, W.M.P.Nos.14810, 14811, 14836, 14842,
15121, 15125, 15134, 14845, 14849, 15065, 15274, 15360, 15379,
15404, 15410, 15419, 15420, 15421, 15422, 15434, 15449, 15451,
15471, 14224, 14225, 14646, 14756, 14765, 14780 of 2021, are
closed.
(S.B., CJ.) (S.K.R., J.)
13.07.2021
Index : yes
tar
To:
1. The Secretary,
Ministry of Health and Family Welfare,
New Delhi 110001
2. The Principal Secretary,
Health and Family Welfare (MCA-1) Department,
Fort St.George, Chennai 9
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W.P.No.13384 of 2021
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(tar)
W.P.No.13384 of 2021
13.07.2021
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