SEKAR REPORTER

Court News from Madras High Court

7.5% medical reservation case Writtten submission of P.Wilson Senior Advocate appearing for Mr D Ravichandran Special Government Pleader on behalf of the Principal Secretary to Government, Higher Education Department, Govt. of TN in all cases P.Wilson      Senior Advocate            D.Ravichandren                                        Special Government Pleader

by · Published · Updated

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Special Original Jurisdiction)

 

W.P.Nos.20078, 20082, 20083, 20084, 20087, 20089, 20092, 20093, 20098, 20100, 20101 and 20104, 18718 and 18320 OF 2020

 

Ms. PREETHIKA.

Minor Represented by:

Mrs. Sekari. S. F/A 39 years

W/o. Mr. Chendrasekar. K,

3/410, Thiruvalluvar Nagar 5th Street,

Jalladampet, Medavakkam,

Chennai 600 100

…..    Petitioner in

 

and batch of cases

 

 

versus

 

State of Tamil Nadu

Rep. by the  Principal Secretary

Ministry of Health and Family Welfare

Fort St. George,

Chennai – 600 009.

And others

… Respondents

 

Writtten submission of P.Wilson Senior Advocate appearing for Mr D Ravichandran Special Government Pleader on behalf of the Principal Secretary to Government, Higher Education Department, Govt. of TN in all cases

 

  1. The impugned Act (TN Act 34 of 2020) is not communal reservation but is a source of admission and such power of the State is traceable under List III Entry 25

 

  1. The impugned Act (TN Act 34 of 2020) provides for a horizontal, preferential admission to an extent of 7.5% of Government seats in the medical institutions in Tamil Nadu to the students who studied in the Government Schools. The definition of Government Schools is found in Section 2(c) of the impugned Act. Section 2(h) defines private schools. These reservations are not communal reservations. It cannot even be called as reservations per se, but it is only a preferential source of admissions to the Government seats as defined under section 2(b) of impugned Act to the UG courses to the Medicine, Dentistry, Indian Medicine and Homeopathy institutions in the State.
  2. The impugned Act categorizes the schools into (a) Government Schools (section 2(c)) and (b) Private schools (section 2(h)). These two categorizations are separate sources of entry/admissions in to the various government seats to be filled up in various medical institutions in the State. Out of the two sources of admissions, one source namely, the government schools, is given preference in admissions to an extent of 7.5%.
  3. The Government has the power to categorize sources of admissions and give preferential admissions. Such categorization is on an intelligible differentia, which has nexus to the object sought to be achieved. As stated above, the impugned Act cannot be treated like “communal reservations” but it is only a source of admissions. (Please see paragraph 13 of Katra Educational Society Vs State of Utter Pradesh and others Manu/SC/0041/1966 at page 256 of List of Citations).
  4. The State has the power and competence to do such categorization. It is in exercise of the powers of the State under List III Entry 25. The categorization of sources of admission as “government schools” and “private schools” done under the impugned Act is a reasonable classification. The government schools as such are a separate source of admission and are given a preference to the extent of 7.5%. Such classification has withstood the strict judicial scrutiny of this Hon’ble Court as well the Hon’ble Supreme Court when the Government adopted similar reservations for in-service candidates applying for PG medical courses. Such preferential modes of admissions have been approved by the Hon’ble Supreme Court in the case of the K. Duraiswamy vs State of Tamilnadu 2001(2) SCC page 538 (paragraph 8,12- Page 155 of the List of Citations filed by Respondents in WP No 1925 and 1927 of 2020). In the said case, at paragraph 8 the Apex Court has held as under:

“the Government possesses the right and authority to decide from what sources the admission in educational institutions or to particular disciplines and courses there in have to be made and that too in what proportion, is well established and by now a proposition well settled too”.

At paragraph 12 the Hon’ble Supreme Court held as follows:

  1. The mere use of the word “reservation” per se does not have the consequence of ipso facto applying the entire mechanism underlying the constitutional concept of a protective reservation specially designed for the advancement of any socially ­and ­educationally ­backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes, to enable them to enter and adequately represent in various fields. The meaning, content and purport of that expression will necessarily depend upon the purpose and object with which it is used. Since reservation has diverse natures and may be brought about in diverse ways with varied purposes and manifold objects, the peculiar principles of interpretation laid down by the courts for implementing reservations envisaged under the Constitution in order to ensure adequate and effective representation to the backward classes as a whole cannot be readily applied out of context and unmindful of the purpose of reservations as the one made in this case, more to safeguard the interest of candidates who were already in service to enable such in­service candidates to acquire higher and advanced education in specialised fields to improve their professional talents for the benefit of the patients to be treated in such medical institutions where the in­service candidates are expected to serve. That apart, where the scheme envisaged is not by way of a mere reservation but is one of classification of the sources from which admissions have to be accorded, fixation of respective quota for such classified groups, the principles at times applied in construing provisions relating to reservation simpliciter will have no relevance or application. Though the prescription of a quota may involve in a general sense reservation in favour of the particular class or category in whose favour a quota is fixed, the concepts of reservation and fixation of quota drastically differ in their purport and content as well as the object. Fixation of a quota in a given case cannot be said to be the same as a mere reservation and whenever a quota is fixed or provided for one or more of the classified group or category, the candidates falling in or answering the description of different classified groups in whose favour a respective quota is fixed have to confine their respective claims against the quota fixed for each of such category, with no one in one category having any right to stake a claim against the quota earmarked for the other class or category. Since we are of the view that the Full Bench has correctly come to the conclusion that the scheme adopted for selection of candidates for admissions in question provided for a definite and fixed quota for the respective classified sources of admission and the reasons assigned therefor do not suffer from any infirmity whatsoever to call for any interference at our hands, these appeals fail and are dismissed.”

 

  1. The Hon’ble supreme court in the case of State of Madhya Pradesh Gopal D. Tirthani and Ors (2003) 7 SCC 23, paragraph 36 has approved such preferential source of admissions which is extracted hereunder

“36. We sum up our conclusions as under:

  • In the State of Madhya Pradesh allocation of 205 seats in post graduation in the universities of Madhya Pradesh for in-service candidates is not a reservation; it is a separate and exclusive channel of entry or source of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations. Such two channels of entry or two sources of admission is a valid provision”
  1. It is pertinent to note that the judgements in both K Duraiswamy’s case (supra) and Gopal D Tirthani case (cited supra) have been approved by the Constitution Bench of the Hon’ble Supreme Court in the case of Tamilnadu Medical Officers Association Vs Union of. India reported in 2021(6)SCC Page 568. (Please see paragraph nos. 10.3,15,90,92,97)

In the said judgement, at paragraph 15, the Hon’ble Supreme Court held as follows:

  1. Thus, making special provision for in­service candidates and the provisions for providing reservation for in­service candidates in postgraduate medical courses have been upheld and approved by this Court in the aforesaid decisions.”

 

  1. Very recently the Hon’ble Supreme Court in the case of Dr. N Karthikeyan and others vs State of Tamilnadu in Civil Appeal No 2066/2022 etc. batch by order dated 16.3.2022 (Annexure I) has approved such classification and treatment of separate source of admission in super specialty courses also for the in-service candidates. Thus granting such reservations/ preferential source of admission is not akin to communal reservations. Such prescription of preferential source of admissions and such fixation of percentage from mode of admission cannot be categorized as communal reservations. Consequently, there is no question of conflating or confusing the 69% communal reservation prevalent in the State with this 7.5% reservation, as the two are distinct and separate.

 

  1. Thus the impugned legislation has to be construed as only laying down a preferred source of admission to the extent of 7.5% of Government seats and under no circumstance be termed as communal reservations.

 

  1. Reservation is also akin to institutional preference

 

  1. These reservations granted to government school students can also be termed as ‘institutional preference’. The Government is competent and empowered to give such ‘institutional preferences’ and the same has been approved by a Constitution Bench of the Hon’ble Supreme Court in the case of TN Medical Officers Association Vs Union of India and others (2021 (6)SCC Page 568) ( please see page 32 of list of citations).

Paragraph 10.3,10.4  and 10.5 of the judgment reads thus :-

“10.3  Thus, as held by the Constitution Bench of this Court in the case of Modern Dental College (supra), in which this Court considered catena of earlier decisions of this Court dealing with the scope and ambit of Entry 66 List I, Entry 66 of List I is a specific entry having a very specific and limited scope; it deals with “Coordination and Determination of Standards” in institutions of higher education or research as well as scientific and technical institutions. It is further observed that the words “Coordination and Determination of Standards” would mean laying down the said standards and therefore when it comes to prescribe the standards for such institutions of higher learning, exclusive domain is given to the Union. It is specifically further observed that that would not include conducting of examination etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc. Thus, in exercise of powers under Entry 66 List I, the Union cannot provide for anything with respect to reservation/percentage of reservation and/or even mode of admission within the State quota, which powers are conferred upon the States under Entry 25 of List III. In exercise of powers under Entry 25 List III, the States have power to make provision for mode of admissions, looking to the requirements and/or need in the  State concerned. 

10.4      We note that as per catena of decisions of this Court, “institutional preference” in the postgraduate medical courses is held to be permissible by the concerned States, (see D.N. Chanchala (supra); Pradeep Jain v. Union of India 18; Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad 19; Gujarat University v. Rajiv Gopinath Bhatt20; AIIMS Students’ Union (supra); Saurabh Chaudri v. Union of India 21; and Yatinkumar Jasubhai Patel.”

10.5     In a recent decision of this Court in the case of Yatinkumar Jasubhai Patel (supra), the issue of “institutional preference” within the State quota was considered in which the Gujarat University framed the rules for the purpose of governing admission to postgraduate courses. One of the rules provided that 50% of the seats shall be filled in as per the All India 50% quota and the remaining seats will be available for the candidates passing from the Gujarat University. That was provided to the candidates graduating from the Gujarat University. The aforesaid rule of “institutional preference” was challenged before the High Court. The vires of the afore­stated rules providing “institutional preference” giving preference to the candidates graduated from the Gujarat University was challenged on the ground that in view of introduction of the NEET and the admissions are given solely on the basis of the merit and the marks obtained in NEET, the rules providing “institutional preference” shall be violative of the Indian Medical Council Act, 1956 and the MCI Regulations, 2000 framed under the Indian Medical Council Act, 1956. The High Court dismissed the writ petition upholding the “institutional preference”. The same was the subject matter before this Court. It was submitted on behalf of the writ petitioners that even the MCI Regulations for postgraduate admissions, MCI Regulations, 2000, do not permit the “institutional preference” and that the MCI Regulations, 2000 held by this Court to be a complete code and therefore no reservation is to be provided unless the same is permitted under the MCI Regulations, 2000. The decision of this Court in the case of Dinesh Singh Chauhan (supra) was also placed into service. However, considering the plethora of decisions of this Court, referred to hereinabove, this Court has again held that “institutional preference” is permissible and even the introduction of NEET would not affect the “institutional preference”. This Court has noted that “institutional preference” up to 50% seats is permissible.”

 

 

  1. Thus, government schools have been carved out as a separate “institution”, and have been given an institutional preference by the State. The students passing out from these institutions have been given 7.5% horizontal preferential admissions and such preferential quota is entirely constitutional and legal, so long as the preference does not cross 50%.

 

  1. Power of the State under List III Entry 25 to regulate admissions in educational institutions.

 

 

  1. The entry or admission process in the medical institution can be regulated by the State pursuant to the power conferred under List III Entry 25 of Schedule VII of the Constitution. The Constitution Bench decision in Modern Dental College reported in 2016(7) SCC page 353 (paragraphs 101,103,132,147,148,149) (Sl No 8 of the compilation) has clearly upheld the power of State to bring in regulations relating to admissions. At paragraph 148, the Hon’ble Supreme Court has observed as follows:
  1. In view of the above discussion, it can be clearly laid down power of Union under entry 66 of Union List is limited to prescribing standards of higher education to bring about uniformity in the level of education imparted throughout the country. Thus, the scope of entry 66 must be construed limited to its actual sense of ‘determining the standards of higher education’ and not of laying down admission process. In no case is the State denuded of its power to legislate under Entry 25 of List III. More so, pertaining to the admission process in universities imparting higher education.
  2. I have no hesitation in upholding the vires of the impugned legislation which empowers the state government to regulate admission process in institutions imparting higher education within the state. In fact, the State being responsible for welfare and development of the people of the State, ought to take necessary steps for welfare of its student community. The field of ‘higher education’ being one such field which directly affects the growth and development of the state, it becomes prerogative of the State to take such steps which further the welfare of the people and in particular pursuing higher education. In fact, the State Government should be the sole entity to lay down the procedure for admission and fee etc. governing the institutions running in that particular state except the centrally funded institutions like IIT, NIT etc. because no one can be a better judge of the requirements and inequalities-in-opportunity of the people of a particular state than that state itself. Only the State legislation can create equal level playing field for the students who are coming out from the State Board and other streams.”

 

  1. In 2020, yet another Constitution Bench decision of the Hon’ble Supreme Court again followed the Modern Dental College judgement in the case of Tamilnadu Medical officer Association Vs Union of India ( 2021 (6) SCC Page 568, paragraph 23.8) (Sl No 2 page 32 of compilation) and reiterated the State’s powers under List III Entry 25 to decide on admissions etc.,

 

  1. Such classification of sources of admission as Government Schools and Private Schools is based on Justice Kalaiarasan committee report and thus is based on an intellegible differentia with reasonable nexus to the object sought to be achieved and is therefore legal, valid and permissible

 

  1. A 6 member committee headed by Justice Kalaiarasan, retired Judge of this Hon’ble Court was appointed vide G.O. Ms. No. 149 dated 21.3.2020 (page 1 of index to typed set filed by Respondent in WP No 1925 of 2020) and the terms of reference of the Justice Kalaiarasan committee is given at paragraph 3 of the said G.O.
  2. The said Justice Kalaiarasan Committee carried out a detailed, scientific study and has given a report that the government schools form a class by themselves and that students studying in the said schools come from socially and economically disadvantaged groups, oppressed and marginalised families and that their admissions in medical institutions from the year 2014-2015 onwards have drastically reduced. The chart showing the income criteria of parents of students studying in the government schools throws much light on the background of these students.

 

 

  1. The conclusion and recommendations of Justice Kalaiarasan committee is extracted hereunder for ease of reference:-

“10. CONCLUSION AND RECOMMENDATIONS: (Page 69 of the Report)

As already seen there is substantial evidence to fortify our recommendations. Accordingly, the commission makes the following recommendations.

(1) Not less than 10 Percentage (10%) of seats in the admission to MBBS course have to be set apart on preferential basis to the students who have studied from sixth to twelfth standard in the State Government Schools and qualified in the NEET exam.

(2) A Serial Enactment has to be made providing horizontal reservation as proposed in the first recommendation Reservation as per law in force is to be followed.

(3) Reservation to the Government school students in getting admission to MBBS course has to be reviewed by the State Government after a period of 5 years from the date of the implementation.

(4) Above reservation can be extended to all courses for which NEET has been prescribed as an eligibility criterion”

 

(E) The Report of Justice Kalaiarasan committee was placed before the Cabinet Committee headed by the Hon’ble Chief Minister and approved with modifications and G.O. was issued followed by the impugned Act. Thus, the policy of the Government has transformed into an Act.

 

  1. A meeting was convened under the Chairmanship of the Hon’ble Chief Minister on 08.06.2020, wherein it was decided among others, to place the recommendations of the Justice Kalaiarasan committee before the Cabinet for its decision. Based on the above, a Bill was introduced in the State Legislative Assembly and the same was passed to provide preference in admission to undergraduate courses in Medicine, Dentistry, Indian Medicine and Homeopathy for the students who studied in Government Schools and have qualified in NEET. When the same was pending for assent before the Hon’ble Governor, the State Government, in order to give a minimum percentage of seats for entry into Medical/Dental Courses, issued an Executive Order vide G.O.(Ms) No.438, Health and Family Welfare (MCA-1) Department, dated 29.10.2020 and G.O.(3D) No.19, Health and Family Welfare (MCA-1) Department, dated 29.10.2020, to accommodate the Government School students who could not go to the coaching centres because of their financial crisis but have cleared the NEET UG-2020 Examination.
  2. The Bill received the assent of the Hon’ble Governor on 30.10.2020. Consequently, the Tamil Nadu Admission to Undergraduate Courses in Medicine, Dentistry, Indian Medicine and Homeopathy on preferential basis to students of Government Schools Act, 2020 (Tamil Nadu Act No. 34 of 2020) (“Act No. 34 of 2020”) was notified in the Government Gazette and brought into effect on 31.10.2020.
  3. Thus on the basis of the Justice Kalaiarasan committee’s report, there is an intelligible differentia in carving out this source of admissions and granting preferential quota for admissions to the students from these Government schools. The classification is reasonable and is not hit by Art. 14 of the constitution.
  4. It is now well settled that one who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis. The Petitioners have miserably failed to meet this requirement and have not shown either by pleading or documents that the classification was unreasonable (Please see The State of West Bengal vs Anwar Ali Sarkar AIR 1952 SC 75)

 

(F) Mark alone is not the determinative factor for Merit; The “cultural capital” that forward community students inherit from their family have to be offset:

 

 

  1. The Hon’ble Supreme Court in the case of Pradeep Jain Vs Union of India 1984 (3) SCC 654 (please see paragraph 12, page 34 of compilation of judgements) has observed that merit cannot be measured in terms of marks alone, but human sympathies are equally important. The Court then at paragraph 13 (Please see page 181 paragraph 13 of the compilation of judgments) of the afore said judgment held as follows:

  1. But let us understand what we mean when we say that selection for admission to medical colleges must be based on merit. What is merit which must govern the process of selection ? It undoubtedly consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic subjects and infinite capacity for hard work, but that is not enough; it also calls for a sense of social commitment and dedication to the cause of the poor. We agree with Krishna Iyer, J. when he says in Jagdish Saran’s case (supra): “If potential for rural service or aptitude for rendering medical attention among backward people is a criterion of merit-and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tears-then, surely, belonging to a university catering to a deprived region is a plus point of merit. Excellence is composite and the heart and its sensitivity are as precious in the case of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases.” Merit cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor as the head in assessing the social, value of a member of the medical profession. This is also an aspect which may, to the limited extent possible, be borne in mind while determining merit for selection of candidates for admission to medical colleges though concededly it would not be easy to do so, since it is a factor which is extremely difficult to judge and not easily susceptible to evaluation.
  2. We may now proceed to consider what are the circumstances in which departure may justifiably be made from the principle of selection based on merit. Obviously, such departure can be justified only on equality-oriented grounds, for whatever be the principle of selection followed for making admissions to medical colleges, it must satisfy the test of equality. Now the concept of equality under the Constitution is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination. Equality must not remain mere idle incantation but it must become a living reality for the large masses of people. In a hierachical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground the every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. We cannot countenance such a suggestion, for to do so would make that equality clause sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it. What the famous poet Willian Blanks said graphically is very true, namely, “One law for the Lion and the Ox is oppression,” Those who are unequal. in fact. cannot treated by identical standards; that may be equality in law but it would certainly not be real equality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, in order to bring about real equality Such affirmative action though apparently discriminatory is calculated to produce equality an a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful section, so that each member of the community, whatever is his births occupation or social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence. We may in this connection usefully quote what Mathew, J. said in Ahmedabad St. Xavier’s College Society and Anr. v. State of Gujarat.”It is obvious that “equality in law precludes discrimination of any kind; whereas equality, in fact, may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations.

“We cannot, therefore, have arid equality which does not take into account the social and economic disabilities and inequalities from which large masses of people suffer in the country. Equality in law must produce real equality; de jure equality must ultimately find its raison d’etre in de facto equality. The State must, therefore, resort to compensatory State action for the purpose of making people who are factually unequal in their wealth, education or social environment, equal in specified areas. The State must, to use again the words of Krishna Iyer. J. in Jagdish Saran’s case (supra) weave those special facilities into the web of equality which, in an equitable setting provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity equality is not negated or neglected where special provisions are geared to the large goal of the disabled getting over their disablement consistently with the general good and individual merit.” The scheme of admission to medical colleges may, therefore, depart from the principle of selection based on merit, where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals.

 

  1. This principle that mark alone is not determining factor of merit was once again expounded by the Hon’ble Supreme Court in the case of Neil Aurelio Nunes Vs Union of India reported in 2022 SCC Online SC 75 (Please see page 166 of compilation of judgments). The Hon’ble Supreme Court at paragraph 31 took into consideration that structural barriers, wide spread inequalities in the availability of and access to educational facilities will result in the deprivation of access to certain classes of people who would be unable to effectively compete in such system. The Supreme Court found that the privileges accrued to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centers to prepare for competitive exams but also includes their social networks and cultural capital (communication skills, accent, books, societal connections, parents’ networks or academic accomplishment) that they inherit from their family. Paragraph 31 reads thus

 

  1.  The crux of the above discussion is that the binary of merit and reservation has now become superfluous once this Court has recognized the principle of substantive equality as the mandate of Article 14 and as a facet of Articles 15(1) and 16(1). An open competitive exam may ensure formal equality where everyone has an equal opportunity to participate. However, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system. Special provisions (like reservation) enable such disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensuring substantive equality. The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also includes their social networks and cultural capital (communication skills, accent, books or academic accomplishments) that they inherit from their family. The cultural capital ensures that a child is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family’s standing. This works to the disadvantage of individuals who are first generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities. On the other hand, social networks (based on community linkages) become useful when individuals seek guidance and advise on how to prepare for examination and advance in their career even if their immediate family does not have the necessary exposure. Thus, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as “merit” reproducing and reaffirming social hierarchies. …..”

 

  1. Therefore, the impugned legislation is in furtherance of the Constitutional goals set out in Article 46, to promote with special care the educational and economic interests of the weaker sections of the people. Thus, this Hon’ble Court must repel the challenge to this social welfare legislation.

 

  1. The Writ Petitions are barred under the principle of constructive resjudicata.

 

  1. When a batch of writ petitions were filed challenging G.O. Ms. No. 438 dated 29.10.2020 as well the impugned Act, the same has been upheld by this Hon’ble Court in the case of V. Muthukumar vs State of Tamilnadu in WP Nos 14403,14405,17912 etc (Please see page 384 of the compilation of judgments) by the Madurai Bench of this Hon’ble Court in and by order dated 19.8.2021. The Hon’ble Madurai Bench has dealt with the Act and has thus held at Paragraph 13-18 as under

“13.         Though the petitioners have challenged the Government Order as well as the Act as unconstitutional, ultra vires and discriminatory, only based on the recommendations submitted by the Committee, the Bill has been passed by the State legislature and thereafter, it became an Act. It is the policy decision of the Government which has been taken, considering the relevant data and based on the recommendations of the committee headed by Hon’ble Mr.Justice P.Kalaiyarasan. The said policy decision has provided Horizontal reservation as special reservation for Government school students. It is a well settled law that Horizontal reservation is a matter of Government policy and if the State provides for relaxation and concession by considering the relevant materials, it is not open to the Court to review such decision. The Hon’ble Apex Court in the case of Union of India vs. M.Selvakumar reported in (2017) 3 SCC 504 held that Horizontal reservation is a policy decision and the Court cannot interfere with the same. Therefore, this Court cannot interfere with the policy decision of the Government which has been expressed through the impugned Government 8/12 https://www.mhc.tn.gov.in/judis/ 391 W.P.(MD).Nos.14403 of 2020 & batch Order as well as the impugned Act. In any event, after the Act came into force, the impugned Government Order has become irrelevant.

  1. The Committee headed by Hon’ble Mr.Justice P.Kalaiyarasan opined that the Government school students are placed at a disadvantageous position as compared to their counter parts in private schools due to socio-economic factors such as caste, wealth, parental occupation, parental education, gender and psychological barriers. Further, very expensive and intensive coaching facility is confined to urban areas as well as private school students for which the Government school students who are from socially and economically weaker sections cannot afford. Only to bridge that gap created by the above said factors, the Committee recommended reservation for admission to medical courses on preferential basis to the Government school students. Based on the recommendations of the Committee, the Government came to the conclusion that there is inequality between the Government school students who form a separate category and Private school students and only to remove the inequalities and to provide a level playing field, 7.5% reservation on preferential basis to the Government school students has been rightly given by the Government by way of the impugned Act. Therefore, the attack of the petitioners that the impugned Act violates Article 14 falls to the ground.
  2. Article 14 of the Constitution promotes reasonable classification. A reasonable classification has been made based on the relevant materials provided by the Committee headed by Hon’ble Mr.Justice P.Kalaiyarasan. The Government school students form a separate category as they are found to be in a disadvantageous position compared to the Private school students. To remove the inequalities, reservation has been given and therefore, the object of the Act is to remove the inequalities.
  3. There is always a presumption in favour of the constitutionality of the Act. Unless it is proved that it is irrational, unfair and discriminatory, the assailing of Act that it discriminates Aided school students is not sustainable, as there are no relevant materials or data produced by the petitioners to prove that they are also similarly placed persons as that of the Government school students.
  4. There is a nexus which is sought to be achieved by the Act. By providing special reservation, what is sought to be achieved is providing a level playing field to the Government school students with the Private school students. Thus, the provision of reservation to the Government school students cannot be found fault with.
  5. Though class legislation is prohibited, reasonable classification is not prohibited. The Government school students forms a separate category as there was inequality between the Government school students and Private school students and the reasonable classification cannot be found fault with, providing reservation to the Government school students who are in disadvantageous position as an affirmative action on the part of the Government to empower weaker sections of the society and therefore, it is validly justified and the reservation is fair, reasonable and it cannot be termed to be ultra vires.”

 

 

  1. Therefore, since the impugned Act has already been upheld by this Hon’ble High Court, there cannot be another challenge by way of separate writ petitions challenging the Act again and the writ petitions are liable to be dismissed on the ground of constructive res-judicata. If each time a litigant thinks of new and innovative grounds, repeated challenges are permitted to validity of legislations, then there is no meaning to judgements of Constitutional Courts upholding an Act. If such arguments are accepted, it will go against the well settled notions of public policy that there must be an end to litigation. If repeated challenges are encouraged, that too within one year of the same legislation being upheld by a co-ordinate Bench of the same High Court, it will only result in unconscionable waste of precious judicial time. In this regard, it is useful to refer to paragraph 10 of the Judgment of Hon’ble Supreme Court in 1989 (3) SCC 151 in the case of M/s Kesho Ram and Co and others etc Vs Union of India and others (Annexure III) wherein the  Court has held as follows:
  1. Before we consider the submissions made on behalf of the tenants we would like to point out that some of the tenants who were unsuccessful before this court in Punjab Tin Supply Company’s case, have again filed petitions challenging the validity of Section 3and the impugned Notification on additional grounds. In our opinion the petitions by such tenants are not maintainable as the same are barred by principles of res-judicata. Once the petitioners challenged the validity of the impugned Notification dated 24.9.1974 in earlier proceedings they ought to have raised all the grounds which could have been raised in impugning the validity of Section 3and the Notification, if they failed to raise a ground in earlier petition they cannot raise that ground now in the present proceedings. Finality in litigation and public policy both require that a litigant should not be permitted to challenge validity of the provisions of the Act or Notification at different times on different grounds. Once petitioners challenge to Section 3 and the impugned Notification was considered by the Court and the validity of the same was upheld it must be presumed that all grounds which could validly be raised were raised and considered by the Court. Learned counsel for the petitioners urged that the questions which are being raised in the present proceedings were neither raised nor considered by this Court in Punjab Tin Supply Company’s case, therefore it is open to them to question the validity of Section 3 and the Notification dated 24.9.1974. This submission is contrary to the principles of res judicata and it further ignores the binding effect of a decision of this Court under Article 141 of the Constitution. The binding effect of a decision of this Court does not depend upon whether a particular argument was considered or not, provided the point with reference to which the argument is advanced subsequentiy was actually decided in the earlier decision, See Smt. Somavanti and Ors. v. State of Punjab & Ors., [1963] 2 SCR 774; T. Govindaraja Mudaliar etc. v. State of Tamil Nadu & Ors., [1973] 1 SCC 336 and Anil Kumar Neotia and Ors. v. Union of India & Others, [1988] 2 SCC 587. It is therefore no longer open to the petitioner-tenants to challenge the validity of Section 3 of the Act and the impugned Notification dated 24.9.1974 on the ground that some points had not been urged or csonsidered in Punjab Tin Supply Company’s case. On the principles of res judicata, and also in view of Article 141 of the Constitution, the law declared by this Court in Punjab Tin Supply Company’s case is binding on the petitioners. But even otherwise the submissions made on their behalf in impugning the validity of Section 3 and the Notification dated 24.9.1974 are devoid of any merit as we shall presently discuss the same.

 

 

  1. In fine, it is submitted that the presumption of constitutionality that always operates in favour of the statute has not been dislodged by the petitioners on well settled principles of law. The Act is not unconstitutional, but per contra, in furtherance of the lofty Constitutional goals to uplift the disadvantaged and weaker sections of society and therefore must not be lightly interfered with by this Hon’ble Court. That apart, the bogey of merit, in its narrow binary form cannot be applied to the facts of this case since all the students who are benefitted by this 7.5% preferential admission are NEET qualified.
  2. In such conspectus of the matter, it is humbly prayed on behalf of this official Respondent (Higher Education Department, Government of Tamil Nadu) that this Hon’ble Court may be pleased to dismiss the above Writ Petition and thus render justice.

 

Dated at Chennai this the 18th day of March 2022

 

 

 

 

Settled by

P.Wilson                                                                                 D. Ravichandran

Senior Advocate                                                                        Special Government Pleader

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