Dr. M.R. Sivakumar vs State of Tamil Nadu and Others

E. Padmanabhan, J.—Aggrieved by the dismissal of W.P. No. 3386 of 1998, the present writ appeal has been preferred.

Heard Mr. G. Subramanian, learned Senior Counsel appearing for the appellant and Mr. D. Murugesan, Special Government Pleader appearing

for the respondents.

Admittedly, the appellant, on successful completion of M.B.B.S. Course, M.D. (General Medicine) and M.D. (Rheumatology), also

successfully completed D. M. (Neurology) during the year 1985-87. The appellant''s academic achievements are definitely exemplary. The

appellant desired to apply for the course of D.M. (Rheumatology) for the academic year 1998-99. The appellant, on going through the prospectus,

found that he is ineligible to apply to the course as he has already acquired a higher speciality degree in one of the disciplines. In the circumstances,

the appellant filed W.P. No. 3386 of 1998 praying for the issue of a writ of declaration declaring that clause 5 of the prospectus for admission to

higher speciality courses in Tamil Nadu Government Medical Colleges as unconstitutional and void and consequently direct the respondents to

consider the petitioner''s application on merits and without reference to the said clause.

The Honourable single Judge by order dated 20-3-1998 dismissed the writ petition, while negativing the claim of the appellant. The Honourable

single Judge has upheld the validity of Clause 5.

In the present appeal, Mr. G. Subramanian, learned senior counsel for the appellant vehemently contended that the clause, which disables the

appellant and which renders the appellant ineligible to apply for any course during 1998-99 session, is illegal and violative of fundamental rights

guaranteed by Article 21 of the Constitution and that pending writ appeal, the appellant should be permitted to take up the entrance examination

prescribed for the course by appropriate direction.

Per contra, Mr. D. Murugesan, Special Government Pleader appearing for the respondents, contended that identical clauses have already been

upheld by this Court and, being a higher speciality degree, the appellant having already acquired one higher speciality degree, has no fundamental

right much less a right under Article 21 of the Constitution, so as to exclude the other candidates from applying and securing admission. In other

words, it is pointed out by the learned Special Government Pleader that Clause 5 as well as clause 6 are fair, just and equitable so that the

candidate who had not undergone higher speciality degree and who had not acquired the higher speciality degree could be given an opportunity to

acquire special degree. Learned Special Government Pleader also contended that the appellant''s fundamental rights have not been violated.

Clauses 5 to 8 of the prospectus, which are relevant and have a bearing on the issue involved, are set out hereunder for immediate reference.

A candidate who has already acquired a higher speciality degree course in any one discipline is ineligible to apply for any course during 1998-

99 session.

A candidate who has undergone a higher speciality degree course and discontinued the course on his/her own accord or on any other grounds

after six months is ineligible to apply for any course during 1998-99 session.

A candidate who is already undergoing a higher speciality course is ineligible to apply for any course during 1998-99 session.

Securing admission to higher speciality course by suppression of facts of regulations 5, 6 and 7 would be viewed seriously and the candidates

will be expelled from the higher speciality course he/she is undergoing and the selection will be cancelled at any stage of the course.

It is not in dispute that the prospectus in question has been issued on the basis of the policy laid down by the State Government in G.O. Ms.

No. 58 Health and Family Welfare Department dated 6-2-1998. It is also not in dispute that such a policy decision was taken by the State

Government after taking into consideration of the minimal number of seats available for such higher speciality degree course, as well as all the

relevant factors. The policy of the State Government has not been challenged and it is obvious that the State Government has taken a policy

decision to avoid concentration of higher speciality in one or two individuals or Doctors, besides with a view to distribute the available few number

of seats in various higher speciality (D.M.) courses, to enable the Post Graduate degree holders to acquire the higher speciality degree as well.

Mr. G. Subramanian, learned senior counsel, though challenged the clauses as violati ve of fundamental rights guaranteed by Article 21 of the

Constitution, had fairly stated that the policy decision of the State Government with respect to the restriction or the eligibility criteria is a fair and

reasonable one and the object being to distribute available seats to qualified persons and to avoid concentration of the higher speciality degree in

one person. In other words, the object being only one higher speciality degree could be acquired and not more than one higher speciality degree,

as it would enable the candidates to have a fair and reasonable chance of acquiring higher speciality degree. However, Mr. G. Subramanian,

learned senior counsel contended that the appellant has a fundamental right and such right cannot be taken away by introducing Clause 5 in the

prospectus, as in every respect, according to the appellant, he has acquired a right to apply and secure admission for an additional higher speciality

degree. Reliance was placed by the learned senior counsel on the decision of the Apex Court, rendered in Unni Krishnan, J.P. and others Vs.

State of Andhra Pradesh and others etc. etc., . Though Mr. G. Subramanian, learned senior counsel relied upon paragraph 171 of the judgment

when in fact the very same judgment is against the appellant, the plea of the appellant cannot be sustained. The Apex Court in Unni Krishnan, J.P.

and others Vs. State of Andhra Pradesh and others etc. etc., held thus (at page 2231 of AIR) :--

In the above state of law, it would not be correct to contend that Miss. Mohini Jain Vs. State of Karnataka and others, was wrong in so far as it

declared that ""the right to education flows directly from right to life"". But the question is what is the content of this right? How much and what level

of education is necessary to make the life meaningful? Does it mean that every citizen of this country can call upon the State to provide him

education of his choice? In other words, whether the citizens of this country can demand that the State provide adequate number of medical

colleges, engineering colleges and other educational institutions to satisfy all their educational needs? Mohini Jain seems to say, yes. With respect,

we cannot agree with such a broad proposition. The right to education which is implicit in the right to life and personal liberty guaranteed by Article

21 must be construed in the light of the directive principles in part IV of the Constitution. So far as the right to eduction is concerned, there are

several articles in Part IV which expressly speak of it. Article 41 says that the ""State shall, within the limits of its economic capacity and

development make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age,

sickness and disablement, and in other cases of undeserved want"". Article 45 says that ""the State shall endeavour to provide, within a period of ten

years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years"".

Article 46 commands that ""the State shall promote with special care the educational and economic interests of the weaker section of the people

and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation"".

Education means knowledge and ""knowledge itself is power"". As rightly observed by John Adams, ""the preservation of means of knowledge

among the lowest ranks is of more importance to the public than all the property of all the rich men in the country"" (Dissertation on Canon and

Feudal Law, 1765). It is this concerned which seems to underlie Article 46. It is the tyrants and bad rulers who are afraid of spread of education

and knowledge among the deprived classes. Witness Hilter railing against universal education. He said ""Universal education is the most corroding

and disintegrating poison that liberalism has ever invented for its own destruction"" (Rauschning, the voice of Destruction : Hilger Speaks). A true

democracy is one where education is universal, where people understand what is good for them and the nation and know how to govern

themselves. The three Articles 45, 46 and 41 are designed to achieve the said goal among others. It is in the light of these Articles that the content

and parameters of the right to education have to be determined. Right to education, understood in the contexl of Articles 45 and 41 means : (a)

every child/citizen of this country has a right to free education unti! he completes the age of fourteen years and (b) after a child/citizen completes 14

years, his right to education is circum- scribed by the limits of the economic capacity of the State and its development. We may deal with both

these limbs separately.

Right to free education for all children until they complete the age of fourteen years (Article 45). It is noteworthy that among the several articles in

Part IV, only Article 45 speaks of a time-limit; no other article does. Has it no significance? Is it a mere pious wish, even after 44 years of the

Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to ""endeavour to provide

the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44

years more than four times the period stipulated in Article 45 -- convert the obligation created by the article into an enforceable right? In this

context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities

indicated by the Constitution. The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in

Article 45. It is relevant to notice that Article 45 does not speak of the ""limits of its economic capacity and development"" as does Article 41, which

inter alia speaks of right to education. What has actually happened is -- more money is spent and more attention is directed to higher education

than to -- and at the cost of -- primary education. (By primary education, we mean the education, which a normal child receives by the time he

completes 14 years of age). Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46. We clarify,

we are not seeking to lay down the priorities for the Government -- we are only emphasising the constitutional policy as disclosed by Articles 45,

46 and 41. Surely the wisdom of these constitutional provisions is beyond question. This inversion of priorities has been commented upon

adversely by both the educationists and economists.

X X X X X

Right to education after the child/ citizen completes the age of 14 years. The right to education further means that a citizen has a right to call

upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not

transferring Article 41 from Part IV to Part III -- we are merely relying upon Article 41 to illustrate the content of the right to education flowing

from Article 21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic

capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective

satisfaction of the State.

In the light of the above enunciation, the apprehension expressed by the counsel for the petitioners that by reading the right to education into

Article 21, this Court would be enabling each and every citizen of this country to approach the Courts to compel the State to provide him such

education as he chooses must be held to be unfounded. The right to free education is available only to children until they complete the age of 14

years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development. Indeed, we are

not stating anything new. This aspect has already been emphasised by this Court in Francis Coralie Mullin Vs. Administrator, Union Territory of

Delhi and Others, . While elaborating the scope of the right guaranteed under Article 21, this Court stated : (SCC pp. 617-19, para 8) (at page

753 of AIR) :

But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something

more. We think that the right to life includes right to live with human dignity and all that goes along with it viz., the bare necessities of life such as

adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing

and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of

the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to

carry on such functions and activities as constitute the bare minimum expression of the humanself.

We must hasten to add that just because we have relied upon some of the directive principles to locate the parameters of the right to education

implicit in Article 21, it does not follow automati- cally that each and every obligation referred to in part IV gets automatically included within the

purview of Article 21. We have held the right to education to be implicit in the right to life because of its inherent fundamental importance. As a

matter of fact, we have referred to Articles 41, 45 and 46 merely to determine the parameters of the said right.

The Honourable single Judge has rightly relied upon the said pronouncement of the Apex Court and had rightly rejected the contention raised

by the appellant with respect to the appellant''s claim for admission to higher speciality degree to acquire additional qualification of D.M.

(Rheumatology).

In fact, identical clause was the subject matter of consideration before the Division Bench of this Court in W.A. No. 955 of 1997 dated 20-8-

1998. The Director of Medical Education, Chennai 5 v. Dr. v. Ramalakshmi and the Division Bench held thus :

Though the learned Judge appears to have placed strong reliance to sustain the plea of freedom to education as a fundamental right, relying upon

what is known as Miss. Mohini Jain Vs. State of Karnataka and others, , the larger bench of the Apex Court in the decision reported in Unni

Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., in unmistakable terms held that a citizen''s fundamental right to

education flowing from Article 21 of the Constitution of India is not an absolute right, but its content and parameters have to be determined in the

light of Articles 45 and 41 of the Constitution of India and that every child/ citizen of the country has a right to free education until he completes the

age of fourteen years and thereafter, the right is subject to the limits of economic capacity and development of the State. It is only adverting to the

said aspect, the Division Bench of this Court in the decision in A. Balasubramaniam Vs. The Secretary to Government Education Department and

others, , has held that the fundamental right to education guaranteed is only up to the age of fourteen years and not beyond that.

In fact, in the same judgment, the Division Bench had an occasion to consider an identical contention of enforcement of fundamental right, besides

challenging one of the clauses in the prospectus. The earlier Division Bench judgment in W.A. No. 955 of 1997 squarely answers the appellant''s

claim.

However, Mr. G. Subramanian, learned senior counsel, relying upon the judgment of this Bench in W.A. Nos. 1343 to 1352 of 1997 dated

21-1-1998 (The State of Tamil Nadu v. K. Chinnusamy) sought to contend that the latter Division Bench has taken a different view, though not a

conflicting view. In W.A. Nos. 1343 to 1352 of 1997, Clause 7 of the prospectus was the subject matter of consideration and we have, on a

construction of the said clause, held that Clause 7 is only a permissive provisions and it does not debar the Postgraduate Diploma holder in one

discipline from applying to any other discipline for the Post Graduate Degree course. Per contra, in the present case Clause 5 of the prospectus

specifically provides that a candidate who had already acquired a higher speciality degree course in any one discipline is ineligible to apply for any

course during 1998-99 session. We are not in a position to appreciate the contention raised by the learned senior counsel that we have taken a

different view in W.A. Nos 1343 to 1352 of 1997.

The power of the State Government to introduce such restrictions, which are reasonable, or fair or just, had not been challenged. It has also

been repeatedly held that the State Government is the authority to stipulate the eligibility criteria as well as the course of admission etc. This

position has been well laid down in Kumari Chitra Ghosh and Another Vs. Union of India (UOI) and Others, .

The policy had not been challenged, nor Clause 5 of the Prospectus could be held to be unfair, arbitrary or unjust; nor it could be held that

Clause 5 is violative of Article 21 of the Constitution or any other fundamental rights guaranteed by Articles 14 or 16 of the Constitution. A

Division Bench of this Court in A. Balasubramaniam Vs. The Secretary to Government Education Department and others, , in the light of the

pronouncement of the Supreme Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., held that the

fundamental right to education is guaranteed only up to the age of 14 years and not more than that. In other words, there is no fundamental right to

claim higher education. K. A. Swami, C.J. speaking for the Bench held thus

The next question for consideration is whether the prescription of age limit can be held to be violative of Articles 14 and 21 of the Constitution. As

long as there is an avenue open to the diploma-holders who arc age barred for the course in question, to pursue their higher studies the question of

their fundamental right under Article 21 being affected, does not arise. Moreover, it has been held in Unni Krishnan, J.P. and others Vs. State of

Andhra Pradesh and others etc. etc., that the fundamental right to education is guaranteed only up to the age of 14 years and not beyond that; in

other words, there is no fundamental right to claim higher education. As far as Article 14 is concerned, it depends upon whether there is a power

vested in the Authority to prescribe the age limit. This question is no more res Integra. Division Bench of this Court in Nithiyan P. & P. Prasanna v.

State of Tamil Nadu 1994 WLR 624 held that age limit can be prescribed for admission to educational courses. This has been approved by a Full

Bench of this Court in S. R. Bhupeshkar adn Vs. Secretary, Selection Committee, Sabarmathi Hostel, Kilpauk, Medical College Hostel Campus,

Madras and Others, .

We do not find any reason to interfere with the order passed by the Honourable single Judge and the writ appeal is dismissed. No costs.

C.M.P. No. 5592 of 1998 is also dismissed.