Chinar Bada Akhara Udasin Society & Ors Vs. The State of J&K & Ors  INSC 1114 (11 September 1996)
N.P. (J) Singh N.P. (J) Ahmadi A.M. (Cj) Kirpal B.N. (J) N.P.Singh,J
JT 1996 (8) 89
J U D
G M E N T
No.1 Shri Chander Chinar Bada Akhara Udasin Society (hereinafter referred to as
the Society) is a society registered under the J & K Society Registration
Act, the primary object being to promote medical education by establishing
medical colleges, hospitals and child welfare centres. A proposal was submitted
to the State Government for setting up a medical college and a private hospital
in Jammu, in the year 1988~ The State
Government allotted 356 kanals of land for the proposed medical college and
charitable hospital. A further allotment of 250 kanals of land is said to have
been made by the State Government. The State Government recommended to the Jammu University for grant of affiliation to the proposed medical college to
be set up by the society. The State Government also requested the Medical
Council of India to grant approval/recognition to the said medical college.
Inspection was made by the representatives of the Medical Council of India in
respect of infrastructure including the teaching facilities. In due course
temporary recognition of the institution was granted.
said that the Society approached the State Government to issue necessary
guidelines and to frame rules to regulate the admissions to the medical college
established by the Society. The Society in its communication undertook to make
admissions in accordance with the directions of the Supreme Court of India in
the case of J.P.Unnikrishnan vs. State of A.P. & Ors., (1993) 1 SCC 645 and
other directions issued by this Court. The last such communication was
addressed by the Society to the State Government on 17.10.1995 saying that
although it had got recognition from the Government of India, but no
rules/regulations were being framed by the State Government for admissions to
the said medical college.
State Government had issued an advertisement on 6.7.1995 inviting applications
from eligible candidates for appearing at the entrance test for admission to
the two governments medical colleges. But while issuing such advertisement the
State Government did not invite applications for the admission into the medical
college of the Society. In the brochure published by the State Government for
information to the candidates, who may be willing to seek admission, nothing
was said about the medical college in question. which was necessary in view of
the judgments and Orders of this Court for filling up the 'merit seats' and the
'payment seats' It is further the case of the Society that when people of the
State of J & K learnt about the medical college of the Society, they
approached the management for seeking admission and some applications were also
submitted to the management. However, no action was taken on such applications,
as no instructions had been received from the State Government.
students seeking admission in the medical college in question,, filed a writ
petition before the High Court of Jammu & Kashmir making a grievance in
respect of failure on the part cf the State Government to frame necessary
rules/guidelines to regulate admission to the medical college of the Society
which had deprived them of the opportunitv of seeking admission against the
'merit seats' or the 'payment seats. The appellant-society was impleaded as a
respondent to the said writ petition. Counter affidavit was filed on their
behalf. All necessary records and information were placed before the High
Court. lnspite of the several opportunities being given to the state
government, no affidavit on their behalf was filed. By an order dated 27.11.1995,
the learned single Judge constituted a Committee consisting of:
Mr.Justice J.N.Bhat,(Rtd.) Judge of J&K High Court : Chairman.
Mr. A.M.Watali, former member J&K Public Serv ice Commission:
lal Gupta, Former Director, Health Services, J & K state:
nath Gupta, formerly Prof. and Head, Department of Hindi University of Jammu: Member."
direction was given to the said Committee to immediatley proceed with the
selection process for admission of students in the Ist year MBBS course of the
said medical college. An option was given to invite or call for applications by
publication through recognised modes including issuance of an advertisement in
at least one leading newspaper having wide circulation. In the order, the learned
Judge observed that the selection Committee may conduct oral interviews of the
candidates for short-listing the applicants on basis of their inter se merit.
The first meeting of the aforesaid Committee is said to have been held on
29.11.1995. An advertisement was issued on 4.12.1995 inviting applications from
eligible candidates in respect of the following four categories:-
50% merit seats from permanent resident of the State of J&K;
20% payment seats from permanent resident of the State of J&K;
15% payment seats from candidates outside the State of J&K; and
15% from NRI's and foreigners."
advertisement was published in the Indian Express in its issue dated 4.12.1995~
In the said advertisement, 11.12.1995 was fixed as the last date for receipt of
the applications saying that the interviews of the candidates shall be held
between 15.12.1995 and 17.12.1995. It is the case of the Society that after the
interviews were so held, a merit list was prepared on basis of the percentage
of marks secured by the applicants at the Higher Secondary School Examiantion
or equivalent examinations and the marks secured at the interview. The report
of the Selection Committee was forwarded on 19.12.1995, which was placed on the
notice board on 20.12.1995. Candidates so selected were admitted between
20.12.1995 to 25.12 1995. The teaching commmenced from 26 12.1995.
Letters Patent Appeal against the order dated 27.11.1995. aforesaid of the
learned single Judge, had been filed on behalf of the State Government, which
was listed before the Division Bench on 27.12.1995. On the basis of the caveat
filed on behalf of the Society, the parties were heard on the aforesaid date.
After hearing the parties, the appeal filed on behalf of the State Government,
was admitted and the operation of the order of the learned single Judge was
stayed. Ultimately, the Appeal filed on behalf of the State and the appeals
filed on behalf of others were allowed on 22.3.1996. The order of the learned
single Judge was set aside. The present appeals have been filed against the
said judgment of the Division Bench.
the judgement of the Division Bench, it. shall appear that after taking into
consideration the different aspects of the controversy as well as the
predicament of the students who claimed to have been admitted in the medical
college aforesaid, the following directions were given:- "To conclude,
considering these several aspects, we make the following orders:
These appeals are allowed. The order of the learned Single Judge passed on OWP
No.379/1995 dated November 27, 1995 is set aside.
issue a writ of Mandamus to the State Govt. to issue a Notification calling for
application from the eligible candidates in the prescribed form for appearing
in the common viva voce entrance examination. There shall be no common entrance
written . examination. Notification calling for application shall be published
in one local Daily Varnacular language and in one daily widely circualted
English newspaper petioners, the contesting respondents, the appellants of the LAPs
who have already applied need not apply once again except those who have not
The last date for receiving the applications in the prescribed form shall be
5th April, 1996.
received after the date fixed above either by post or by hand would not be
The Roll Nos. to the eligible candidates shall be supplied by the 8th April,
1996. The date for holding the common entrance viva voce examination is fixed
as 10th April, 1996.
The Competent Authority shall make. selection and announce the results on or
before 17th April, 1996. The selection list so prepared
shall be got published in atleast two leading local dailies of Srinagar and
Jammu and it shall also be displayed at the office of Competent Authority,
Entrance Examination in Jammu and Srinagar.
Out of 100 marks awarded for selection of the candidates, 75% shall be for
academic qualification and 25% shall be for common Entrance Viva Voce
The number of 100 seats shall be filled up by selecting candidates from the
order of merit.
least 50% of the seats out of the 100 seats shall be filled up by the nominees
of the Govt. or University as the case may be, hereinafter referred to as free seats
students shall be selected on the basis of merit determined on the basis of
merit list by such criteria as may be determined by the Competent Authority or
appropriate Authority as the case may be. The remaining 50% of the seats
(payment seats) shall be filled up by those candidates who are prepared to pay
the fee prescribed therefor and who have complied with the instructions
regarding deposit and furnishing of cash security/Bank guarantee for the
balance of the amount. The allotment of students against payment seats shall
also be done on the basis of inter semerit determined on the same basis as in
the case of free seats.
so far as the reservation of the seats for persons claiming constitutionally
permissible reserved, the SRO issued by the State of J&K in relation to the
reservation of seats shall be followed.
In so far as the fixation of the scale of fee payable by these students, the
State Govt. shall constitute a committee within a period of ten days and that
committee shall fix the scale of fee payable by the students in accordance with
the guidelines contained in the scheme of Unni Krishnan J.P. (AIR 1993 SC 2173)
It is apparent from the order aforesaid that a writ of mandamus was issued to
the State Government to invite applications from eligible candidates in
prescribed form for appearing in the common viva voce entrance examination.
there is a specific direction that no common entrance written examination shall
be held. 5th April, 1996 was as the last date for receiving the applications in
the prescribed form. Thereafter a time schedule was prescribed in respect of
common viva voce entrance examination, selection and announcement of the
result. A direction was also given that out of 100 marks awarded for selection
of the candidates. 75% shall be for academic qualification and 25% shall be for
common entrance viva voce examination.
to the appellant-society, there was no justification on the part of the
Division Bench to interfere with the directions given by the learned single Judge,
which were just and proper. It was pointed out that under the predicament under
which the appellant-society and the applicants had been placed because of the
inaction on the part of the State Government, the learned single Judge had no
option but to constitute a Committee of persons mentioned above for selecting
the applicants for admission in order to save them from loosing an academic
session, for no fault of theirs.
true that when the Society requested the State Government to frame necessary rules/guidelines
to regulate the admissions in the medical college of the Society, the State
Government should have taken appropriate and immediate steps and there was no
sense in shelving the said issue by ignoring it outright. The learned counsel,
who appeared on behalf of the State, could not give any explanation as to why
the necessary guidelines were not issued to the Society in respect of the
admissions in the medical college aforesaid. But the fact remains that the
learned Single Judge on the writ petition filed on behalf of the students
adopted a procedure and fixed a time schedule in respect of admission of the
applicants, which are not consistent with the orders and directions issued by
this Court in different cases, indicating the procedure for admission in
private medical colleges. There is no dispute that the advertisement inviting
applications from eligible candidates was issued on 4.12.1995 and 11.12.1995
was fixed as the last date for receipt of the such applications i.e. within a
week, which according to us, was perse an arbitrary time limit fixed for
receipt of the applications. It is said that the interviews were held Between
15.12.1995 and 17.12.1995 and the selection list was forwarded on 19.12.1995.
The selected candidates are said to have been admitted between 20.12.1995 and
26.12.1995 and classes are said to have commenced since 26.12.1995 itself.
Admittedly, the Division Bench passed an interim order staying the operation of
the judgment of the single Judge only the next day i.e. 27~12.95 In this
background, it is difficult to accept the claim made on behalf of the Society
as well as applicants who are said to have been admitted in the said medical
college, that their studies commenced since 26.12.1995 and as such on equitable
grounds they should be allowed to pursue their studies.
unfortunate that due to the indifferent attitude of the State Government and
haste shown by the appellant- society, the so-called selected candidates, who
are said to have been admitted, are virtually on the roads. But only on
equitable grounds, a procedure which is not sanctioned by law cannot be
approved only to mitigate the hardship of such candidates who have sought
admissions in the medical college aforesaid. But at the same time many of the
directions given by the Division Bench also cannot be approved. It has directed
that selection be made on basis of common viva voce entrance examination and no
common entrance written examination be held. According to the direction of the
Division Bench, 75% marks have been allotted for academic qualification and 25%
marks for the viva voce exam-ination.
need not be pointed out that the percentage of marks secured by different
applicants at different types of examinations at the higher secondary stage
cannot be treated as uniform. Some of such examinations are conducted at the
state level, others at the national level including the Indian School
Certificate examination. The percentage secured at different examinations are
bound to vary according to the standard applied by such examining bodies, which
is a well known. As such a common entrance examination has to be held. The
counsel appearing for the parties could not justify the awarding of 25% markes
for viva voce examination in view of the several judgments of this Court in
connection with admission in educational institutions;
such judgment being from the State of J&K itself in the case of Ajay Hasia
etc vs. Khalid Mujib Sehravadi and others etc., AIR 1981 SC 487 = (1981) 1 SCC
learned counsel appearing on behalf of the State informed the Court that
pursuant to the direction given by the Division Bench, an advertisement was
issued on 27.3.1996 by the State Government, notifying the conditions of
eligibility for admission in the said medical college. From the said
advertisement it appears that one of the conditions is that the candidate must
be permanent resident of J & K.
was no such direction given by the Division Bench.
from that any such condition is not consistent with the different judgments and
orders of this Court. Mr. Verma, learned senior counsel, immediately offered to
rectify the same and to abide by any direction given by this Court.
all the facts and circumstances into consideration, we are of the view that for
one reason or the other, now it is not possible to complete the admission in
the said medical college for the session which has already commenced. As such
the only reasonable course shall be that a fresh advertisement be issued for
the next academic session in accordance with law in the light of directions
given by this Court in the cases of J.P. Unnikrishnan vs. State of AP &
Ors. (supra). T.M.A. Pai Foundation & Ors. vs. State of Karnataka, (1993) 4 SCC 276, Manipal Academy
of Higher Education vs. State of Karnataka & ors. (1994) 2 SCC 201 and in the case of T.M.A.Pai Foundation and
ors. vs. State of Karnataka and ors., (1995) 5 SCC 220. The
advertisement inviting applications should be given proper publicity and
thereafter the seats should be ear-marked and allotted in terms of the
judgments aforesaid which prescribe the procedure for admission by the private
medical colleges. Seats shall also be reserved for NRI within the percentage
fixed in those judgments. The State Government shall extend all cooperation and
help so that proper selections are made as per directions of this Court and the
appellant-society which has established the medical college is able to pursue
its goal by making the medical college functional, which shall be in the
interest of the State of J & K itself. The learned counsel appearing for
the State of J&K assured this Court that all necessary steps shall be taken
result, the appeals are dismissed but at the same time in view of the
directions given above, it has to be held that we are not approving the
directions given by the Division Bench. Now, the steps have to be taken by the
appellant-society and the State Government in accordance with the different
directions given by this Court for admission in the private medical colleges. There
shall be no orders as to cost.