Full details Neet Dmk implead petition IN THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction) W.M.P. No. OF 2021 IN W.P. No. 13384 OF 2021 Dravida Munnetara Kazhagam rep by its Organising Secretary R.S. Bharathi “Anna Arivalayam”,-++AFFIDAVIT OF R.S. BHARATHI I, R.S. Bharathi, s/o (Late) D.J. Raman, Indian, aged about 74 years, presently the Organising Secretary of the Dravida Munnetra Kazhagam (DMK), having office at “Anna Arivalayam”, No.367 & 369, Anna Salai, Teynampet, Chennai 600 018, do hereby solemnly affirm and sincerely state as follows:-

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)

W.M.P. No. OF 2021

IN

W.P. No. 13384 OF 2021

Dravida Munnetara Kazhagam
rep by its Organising Secretary
R.S. Bharathi
“Anna Arivalayam”, No. 367 & 369, Anna Salai,
Chennai 600-018

…Petitioner / Proposed 3rd Respondent

Vs.
1. K.Nagarajan
S/o. KaruppaiahNadar,
5038, Vika Flats, 5th Street,
Ram Nagar North, Madipakkam,
Chennai – 600 091
… Respondent/ Writ Petitioner
2. Union of India,
Represented by its Secretary,
Ministry of Health and Family Welfare,
New Delhi – 110001

3. State of Tamil Nadu,
Represented by its Principal Secretary,
To Government,
Health and Family Welfare (MCA-1)Department,
Fort St. George, Chennai – 600 009
… Respondents/ Respondents

AFFIDAVIT OF R.S. BHARATHI

I, R.S. Bharathi, s/o (Late) D.J. Raman, Indian, aged about 74 years, presently the Organising Secretary of the Dravida Munnetra Kazhagam (DMK), having office at “Anna Arivalayam”, No.367 & 369, Anna Salai, Teynampet, Chennai 600 018, do hereby solemnly affirm and sincerely state as follows:-

1. I am the Organising Secretary of the Petitioner herein and as such I am well acquainted with the facts and circumstances of the case. I have been duly authorized to file this Writ Petition by the DMK Party and I am competent to swear to this affidavit.

2. I humbly submit that the Dravida Munnetra Kazhagam (hereinafter referred to as ‘the party’) was founded in the year 1949 and has been a major political party in the State of Tamil Nadu. The party has a rich history and political legacy and has formed Government in the State several times and has also been instrumental in forming Government at the centre number of times. The party is presently the ruling party in the Legislative Assembly of Tamil Nadu, having been elected by the people of Tamil Nadu with a resounding mandate. The Petitioner is also the 3rd largest party in the present Lok Sabha. The people of this State in their wisdom have entrusted 38 out of 39 Lok Sabha seats in the State to the Petitioner party. Being a registered political party with such legacy, the Petitioner is one of the important stake holders in the world’s largest democracy.
3. I state that the present impleading petition is being filed on the file of this Hon’ble Court to bring certain facts on record about the NEET exam, its impact on the students of Tamil Nadu and to oppose the present Writ Petition as not maintainable and for want of locus standi.
4. I humbly submit that the present Writ Petition filed by one K. Nagarajan, claiming to be the General Secretary of the BJP’s State unit is not maintainable of law or fact, being a by-product of complete and thorough ignorance of law and facts. When a person approaches this Hon’ble Court claiming to be the General Secretary of a national party, the minimum exercise one hopes he would have undertaken is to have a sound legal opinion before filing a Writ Petition which has the potential to consume valuable judicial time. Before traversing into the merits of the matter, I wish to outline the objections as to the maintainability of this Writ Petition. I state that the Writ Petition is not maintainable on the following principles of law, which are no longer res integra:
i. The Writ Petition has not made out a case for violation of any fundamental right of anybody, and thus does not make out a case for the exercise of the constitutional power of this Court under Article 226 of the Constitution;
ii. A challenge to the constitution of a fact finding body is not maintainable as it does not affect the rights of any part and does not give rise to a cause of action;
iii. The petition is filed on the basis of conjectures and surmises, on hypothetical facts, assumptions and presumptions.
iv. The Writ Petition is not bona fide but is politically motivated and is an attempt to prevent the restoration of social justice in education and a level playing field for the students hailing from all walks of life, for an equitable way of admission of students, and has commercial motivation to help the coaching centers located all over the State and therefore is a publicity/ personally interested litigation.

5. I humbly submit that it is well settled that to challenge an executive order under Article 226, the Writ Petitioner must establish that any fundamental or legal right has been violated. In the present case, the Writ Petitioner has not shown how the constitution of a high level fact finding committee, which is only going to conduct a study as per its terms of reference and submit a report to the Government, violates any fundamental right or legal right of any person.
6. I humbly submit that further, the impugned Committee is merely a fact finding body, to study the impact of NEET on the students in Tamil Nadu. This does not affect the rights of any person and therefore does not give rise to any cause of action to file a Writ Petition. It is well settled that it is within the executive power of the State Government under Article 162 to appoint such fact finding body by way of an executive order. The issue here is only the constitution of the Committee and not the legislative power of the State Legislature to legislate laws under Entry 25, List III of Schedule VII of the Constitution of India. Therefore, this Writ Petition is engineered as a pre-emptive exercise of challenging the power of the State Legislature in exercising its constitutional powers, and the same is thoroughly misconceived, premature and deserves to be dismissed as such.
7. I humbly submit that the Writ Petitioner is neither a soothsayer nor an astrologer to predict the contents of the report of the Committee. Even after the Committee submits a report, the Government will have to study the report and then only decide the further course of action. Therefore, how the Petitioner has come to the conclusion that the future action of the State Government will be in violation of the Medical Education Laws, NEET Regulations promulgated by the Central Government or the judgement of the Hon’ble Supreme Court is not known. This entire exercise is futile as it is entirely based on guesswork and conjectures. It is trite in law that the Court will not burden itself with purely academic issues.
8. I humbly submit that without prejudice to the objections on maintainability, we wish to place on record a few submissions on the power of the State Governments in entry 25 of List III of Schedule VII of the Constitution of India, only for the purpose of bringing it on record.
9. I humbly submit that the Petitioner, being the largest political party in the State is best placed to understand the grievances of the students, parents, stake holders and pulse of the people. In fact, the Petitioner can definitely understand it much better than the Writ Petitioner/ 1st Respondent, who is not an elected representative of the people. The Petitioner party’s elected MLAs and MPs have received hundreds of representations from their constituents about NEET and its impact on the dreams of the socially and economically backward people. The Constitution is for the people and by the people. The Government established under the Constitution is also of the people, by the people and for the people. All laws and policies of such a popularly elected Government is for the people. I submit that the experience of the past four years of “The National Eligibility cum Entrance Test” has shown us that the exam has shattered the hopes and dreams of Tamil Nadu students aspiring for admission to medical and dental courses, particularly, students from the socially and economically backward classes. This extra examination which students are compelled to face, other than the qualifying examination (Class XII exams) has caused great huge financial burden to the students from socially and economically backward classes, besides mental agony and depression. Under guise of coaching for NEET, the coaching centres mint huge money from the students. NEET virtually has mandated the switching over of students to CBSE from State Board, thereby making State Board education meaningless for students who wish to pursue medicine and dental courses. Therefore, to better understand the grievances of the people, and to wipe the tears of the students from such underprivileged class of society, our Hon’ble Chief Minister has constituted a fact finding Committee to recommend suitable measures to the Government. It requires a degree of extraordinary perversion to seek to oppose such constitution of a high level committee to study the impact of NEET. It boggles the mind as to what grievance anybody can possibly have for a Committee to study the impact of NEET on the children of Tamil Nadu.
10. I humbly submit that NEET was initially introduced by way of Regulations made under Indian Medical Council Act, 1956 and Dentist Act, 1948. Later by amending the Indian Medical Council Act, 1956 & Dentists Act, 1948 Section 10 D was brought in both Acts, which introduced a Uniform Entrance Examination to all medical educational institutions at the undergraduate and post-graduate levels. The MCI Act has been replaced by the National Medical Commission Act, 2019, section 14 of which retains NEET for entry into UG & PG medical courses. Section 15 of the NMC Act also introduced a National Exist Test to be taken after completion of the undergraduate medical courses.
11. The Indian Medical Council Act, The Dentists Act and the National Medical Commission Act are enacted pursuant to the power under List I Entry 66 of VIIth Schedule of the Constitution. Education is a concurrent subject under Entry 25 of the Concurrent List (List III of Schedule VII of the Constitution of India. In fact, prior to education being placed in the Concurrent List, it was originally in the State List as entry 11. While interpreting the erstwhile entry 11, the Hon’ble Supreme Court of India in the case of R. Chitralekha v. State of Mysore AIR 1964 SC 1823 held that the State’s power to regulate admissions to its educational institutions cannot be denied. Entries 65 and 66 of the Union List give the Union the power to ensure that the standards of research, etc. is not lowered at the hands of particular State or States. Under Entry 66 of the Union List, the Government of India is required to coordinate and maintain standards in institutions for higher education or research and scientific and technical institution. The words ‘maintaining standards of education’ does not include within its ambit a common entrance exam, taking away the power of the State to regulate admissions in exercise of its legislative power under entry 25 of List III. The Union of India has the right to make policy decisions to maintain standards in higher education and these will be binding upon State Governments. That means, the UoI can say these are the subjects to be taught, the contents of the courses should be so and so and that this much marks should be obtained to pass a degree etc. In Preeti Srivastava v. State of M.P, (1999) 7 SCC 120, it was held that the word “education” under Schedule VII List III Entry 25 is of wide import. It would include in its fold the taught, the teacher, the textbook and also training as practical training is required to be imparted to students pursuing the course of postgraduate medical education. Curricula is also covered by the term “education”. Thus, what emerges is that under List I, responsibility of the Union is with respect to formulation and coordination of standards for higher education institutions and nothing more. “Determination of Standard in Higher Education” implies that Parliament is empowered to prescribe such norms to maintain quality in the institutions for higher education. The expression “coordination and determination of standards in higher education” means that it is for Parliament to take concerted action towards maintaining the standards which does not include conducting entrance examinations/admissions.
12. I humbly submit that the question arises as to “what is coordination and determination of standards in higher education?”. Does the conduct of entrance examinations fall within the scope of “coordination and determination of standards in higher education”? The answer is at paragraphs 101 to 105, 131 to 134 of the judgement of the Hon’ble Supreme Court of India in the case of Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353. The Constitutional Bench held: “Thus, when it comes to prescribing the standards for such institutions of higher learning, exclusive domain is given to the Union. However, 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.”
13. The Constitutional Bench further held at Paragraphs 148, 149 as below with regard to power of the State to lay down the admission process:
148. In view of the above discussion, it can be clearly laid down that power of the Union under Entry 66 of the 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 List III Entry 25. More so, pertaining to the admission process in universities imparting higher education.
149. 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.
14. The Constitutional Bench of Supreme Court again in the case of Tamil Nadu Medical Officers Association and others reported in 2020 SCC Online 699 at paragraph 106 held as follows “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 concerned State.”
15. The Indian Medical Council Act 1956, Dentist Act 1948 and The National Medical Commission Act 2019 are enacted by Parliament pursuant to power under List I Entry 66. Therefore, the statutory provisions and Regulations pertaining to NEET is not traceable to entry 25 of List III and hence under the guise of legislating under List I Entry 66, the Union cannot prescribe the mode of admission to higher educational institutions within the State relating to State institutions. The act of the Union in bringing NEET through Regulations and then through Section 10 D of the Indian Medical Council Act and Dentists Act and then continuing it through Section 14 of the National Medical Commission Act cannot however circumscribe the legislative domain of the State and the State’s constitutional power in prescribing its own admission process to the medical and dental educational courses in the State, which has been affirmed by the Hon’ble Supreme Court of India in its Constitution Bench judgement. Further, it impedes not only the growth in the medical and dental fields but also infringes one of the important constitutional mandates that is to improve Public Health under Article 47. Therefore, the arguments of the Petitioner that the State is powerless in this subject cannot be countenanced in law.
16. Further, I humbly submit that the Writ Petitioner/ 1st Respondent has jumped the gun in his anxiety to file a petition and seek publicity. Assuming for a moment, if the apprehension of the Writ Petitioner/ 1st Respondent is that the State will enact a law pursuant to the Committee’s report which may do away with NEET, such a law will have to follow the procedure prescribed in Article 254 of the Constitution of India. Therefore, it is not as if the Union Government will be kept out of the matter as such a law will require the assent of the Hon’ble President of India. This point alone highlights how the Writ Petitioner/ 1st Respondent has, in his haste to file a petition, filed a totally premature and misconceived Writ Petition.
17. I further submit that our ideal of securing social justice in education may be something that is antithetical to the ideals of the Writ Petitioner/ 1st Respondent. The Writ Petitioner/ 1st Respondent is clearly unmoved by the heart breaking incidents of children committing suicide due to NEET. The Petitioner party however cannot turn a Nelson’s eye to the plight of our people.
18. I humbly submit that therefore, the Petitioner is a necessary party in the above Writ Petition. The Petitioner may be gravely prejudiced if any orders are passed by this Hon’ble Court in the absence of the Petitioner.
19. It is therefore humbly prayed that this Hon’ble Court may be pleased to implead the Petitioner herein as the 3rd Respondent in the above Writ Petition and pass such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and thus render justice.

DEPONENT
Solemnly affirmed at Chennai on this the 30th day of
June, 2021

BEFORE ME

ADVOCATE – CHENNAI

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