D. N. Chanchala Vs. State of Mysore
& Ors [1971] INSC 138 (3 May 1971)
SHELAT, J.M.
SHELAT, J.M.
DUA, I.D.
BHARGAVA, VISHISHTHA
CITATION: 1971 AIR 1762 1971 SCR 608
ACT:
Mysore Medical Colleges (Selection for
Admission) Rules 1970--Scope of Government's rule making power-Rules in
University Acts laying down qualifications for admission do not deprive
Government of power to regulate admission to its own medical colleges
affiliated to the Universities University-wise distribution of seats under r. 9(1)
not violative of Art. 14 of Constitution-Setting apart of certain number of seats
under r. 4 and reservation of seats under r. 5 whether excessive-Whether violative
of Art. 15(4) of Constitution-Requirement of 10 years residence in state under r.
3-Intermittent residence does not satisfy ruleClassification of children of political
sufferers under r.
4(h) whether a reasonable classification--Term
'political sufferer' whether vague.
Constitution of India 1950-Rule 9(1) of Mysore
Medical Colleges (Selection for Admission) Rules 1970 whether violates Art. 14-Rules
4 and 5 whether make excessive reservation-Whether violative of Art. 15(4)-Rule
4(h) making reservation in favour of children of 'political sufferers' whether discriminatory.
HEADNOTE:
The Government of Mysore State conducts four medical
colleges two of which are affiliated to the Universities of Mysore and Bangalore,
the other two being affiliated to Karnataka University. C passed her pre-university
course examination from Bangalore University with 67% marks in optional subjects,
namely Physics, Chemistry and Biology.
She then passed the, B.Sc. Part I examination
of Karnataka University. Under the Ordinances of the Karnataka University, she was
entitled to be admitted to the M.B.B.S.
course of Karnataka University. However the Selection
Committee formed under the Mysore Medical Colleges (Selection for Admission) Rules
1970 did not select her for admission to that course because of Rule 9 of the said
Rules under which preference for admission to a medical college run by a University
was given to students who had passed the P.U.C. Examination of the same University
and only 20% of the seats were available to those passing the P.U.C.
Examination of other Universities. C filed a writ
petition under Art. 32 of the Constitution on the following contentions: (1) that
once the petitioner was eligible for admission to a medical college affiliated to
the Karnataka University according to the Ordinances of that University, the State
Government could not make rules, the effect of which was to deprive her of admission;
(2) that the university-wise distribution of seats provided under r. 9(1) was discriminatory
and being without any rational basis violated Art. 14 of the Constitution; (3) that
the reservation of seats under rr. 4 & 5 for the various categories of persons
set out therein was far more excessive than permitted by the decisions of this Court
and was in violation of Art. 15(4).
V passed her P.U.C. examination from a government
college affiliated to Venkateshwar University in Andhra Pradesh with Physics, Chemistry
and Biology as her optional subjects, securing in those subjects 150 out of 200
marks i.e. 75%.
On July 1970 she made an application for selection
609 to a seat in in any one of the medical colleges affiliated to Karnataka University.
The Selection Committee did not include her in the list of selected candidates and
the reason given was that she was not a resident of the State of Mysore for not
less than 10 years at any time prior to the date of the application for a seat as
required by r. 3 of the Mysore Medical Colleges (Selection for Admission) Rules
1970. In this connection the petitioner filed a certificate from the Tahsildar,
Bellary that she had resided in the State of Mysore for a period of 10 years before
her application. It was further stated on her behalf that though she had left the
State of Mysore on the transfer of her father to Andhra Pradesh before she was ten
years old, she had continued to come and reside at her family house in the State
of Mysore during her vacations.
J. challenged the validity of r. 4(h) of the aforesaid
Rules on the ground that the reservation for children of 'political sufferers' made
therein was not valid under the Constitution.
Held: (i) So long as the rules for selection applicable
to the medical colleges run by Government do not suffer from any constitutional
or legal infirmity, they cannot be challenged as the Government can regulate admission
to its own institutions. The objection that it cannot by such rules, provide for
requirements over and above those laid down by the universities for eligibility,
cannot be sustained. [617D-E] (ii) Since the universities are set up for satisfying
the educational needs of different areas where they are set up and medical colleges
are established in those areas, it can safely be presumed that they also were so
set up to satisfy the needs for medical training of those attached to those universities.
There is nothing undesirable in ensuring as has been done under r. 9 (1) that those
attached to such universities have their ambitions to have training in specialised
subjects like medicine satisfied through colleges attached to their own universities.
Such a basis for selection has not the disadvantage of district wise or unit wise
selection as any student from any part of the state can pass the qualifying examination
in any of the three universities irrespective of his place of birth or residence.
Further the rules confer a discretion on the selection committee to admit outsiders
upto 20% of the total available seats in any one of these colleges i.e. those who
have passed the equivalent examination held by any other university not only in
the state but also elsewhere in India. It was therefore impossible to say that the
basis of selection adopted in those rules would defeat the object of the rules as
was said in Rajendran's case. [619E-620C] The rules lay down a valid classification.
Candidates passing through the qualifying examination held by a university form
a class by themselves as distinguished from those passing through such examination
from the other two universities. Such a classification has a reasonable nexus with
the object of the rules, namely, to cater to the needs of candidates who would naturally
look to their own university to advance their training in technical studies, such
as medical studies. The rules therefore cannot justly be attached on the ground
of hostile discrimination or as being otherwise in breach of Art. 14. [620G-621A]
(iii) Setting apart 60 seats under r. 4 is not a reservation but laying down sources
for selection necessitated by certain overriding considerations, such as obligations
towards those who serve the interest of the country’s security, certain reciprocal
obligations and the like. The reservation under r. 5 though apparently appearing
on the high side, not having been shown as unreasonably excessive the contention
in regard to it must fail. [622B] 39-1 S.C. India/71 610 (iv) The residence contemplated
by r. 3 must prima facie have an element of continuity or regularity in residence
and would not mean all intermittent stay such as during the vacations. It would
thus appear that V did not, withstanding the certificate of residence issued by
the Tehsildar, comply with the requirement of 10 years residence under r. 3. However
the percentage of 750/, marks claimed by the petitioner was only in respect of optional
subjects.
Her aggregate marks were only 65% as compared
to 65.6% obtained by the student last selected and on the basis of this percentage
her application was rightly rejected. It was therefore not necessary to go into
the facts relating to the petitioner's residence in Mysore State or the validity
of r. 3. [624B-F, G-H] (v) Per Shelat & Bhargava, JJ. (Dua J. dissenting) The
definition of 'political sufferer' in r. 4(h) is in clear and unambiguous language,
besides containing sufficient details so as to distinctively identify the persons
who would fall within it. The person must have suffered incarceration, whether as
imprisonment or detention, for a period of at least six months or been awarded capital
punishment, or must have died while actually in detention or undergoing imprisonment,
or killed or incapacitated permanently by firing or lathi charge by the police or
by the military, or must have lost employment, property, or means of livelihood.
These should have been the consequences 'of his having participated in the national
movement for the emancipation of India. There was thus no ambiguity in the definition
of political sufferer which would result in discrimination in administering the
rule.
[626F-H] It is not unreasonable to extend the
principle on which Art.
15 (4) is based to the children of political sufferers
who in consequence of their participation in the emancipation struggle became unsettled
in life, in some cases economically ruined, and were therefore not in a position
to make available to their children that class of education which would place them
in fair competition with the children of those who did not suffer from that disadvantage.
If that be so, it must follow that the definition of 'Political sufferer' not only
makes the children of such sufferers distinguishable from the rest but such classification
has a reasonable nexus with the object of the rules which can be nothing else than
a fair and just distribution of seats.
[629G-630C] Per Dua, J. The object of selection
for admission to the medical colleges, considered in the light of the directive
principles of State policy contained in our Constitution appears to be to select
the best material from amongst the candidates in order not only to provide them
with adequate means of livelihood, but also to provide the much needed medical aid
to the people and to improve public health generally. It cannot be confidently said
that there is a reasonable nexus between the differential on which the children
of political sufferers are classified as a distinct group and the object of admission
to the Medical Colleges.
In view however of the admitted fact that the
marks obtained by J were lower than the marks secured by the last candidate admitted
from the category of the children of political sufferers, the petitioner was not
entitled to claim admission, even if the children of political sufferers were not
given any priority. On this ground alone the petition of J deserved to be dismissed.
Accordingly it was unnecessary to go into the question of the invalidity of r. 4(h)
in this case. [632F-H] In view of the above findings the writ petitions must be
dismissed.
Rajendran v. Madras, [1968] 2 S.C.R. 786, Periakaruppan
v. Tamil Nadu, W.P. 285 and 314 of 1970, decided on Sept. 23, 1970 and Balaji v.
Mysore, [1963] Supp. 1 S.C.R. 439, distinguished.
611 Andhra Pradesh v. Lavu Narendranath, C.As.
2161-A and 2161B of 1970, decided on Feb. 11, 1971 and Chitra Ghosh v. Union of
India, [1970] 1 S.C.R. 413, applied.
Surendrakumar v. State, A.I.R. 1969 Raj. 182,
Umesh Chandra v. V. N. Singh, [1967] I.L.R. 46 Pat. 616, Kerala v. Jacob, A.I.R.
1964 3 6, Ramchandra v. State, A.I.R. 1961 M.P. 247, Subhashini v. State, A.I.R.
1966 Mys. 40 and Anil Kumar v. Mysore, (1969) 17 L.R. (Mysore) 110, referred to.
ORIGINAL JURISDICTION : Writ Petitions Nos. 618
to 622 of 1970.
Petitions under Article 32 of the Constitution
of India for the enforcement of fundamental rights.
Lakshminarasu, Vineet Kumar and Bindra Thakur,
for the petitioners (in W. P. Nos. 618 and 620 to 622 of 1970).
S. K. Venkataranga, Shyamala Pappu, Vineet Kumar
and Bindra Thakur, for the, petitioner (in W. P. No. 619 of 1970).
Niren De, Attorney-General, R. C. Mahindra and
S. P. Nayar, for respondent Nos. I and 2 (in W. P. Nos. 618 and 620 to 622 ,of 1970).
Sunder Swami, Advocate-General, Mysore and S.
P. Nayar for respondent Nos. 1 and 2 (in W. P. No. 619 of 1970).
R. B. Datar, for intervener (in W. P. No. 621
of 1970).
The Judgment of J. M. SHELAT and V. BHARGAVA,
JJ. was delivered by SHELAT, J. I. D. DuA, J. gave a partly dissenting Opinion.
Shelat, J.-These five petitions have been filed
by candidates who failed to be selected for admission in Government Medical colleges
in the State of Mysore and challenge the validity of the Selection Rules framed
by the Government. Since they raise common questions, it is expedient to deal with
them together and dispose them of by a common judgment. Writ petition No. 619 of
1970, we were told by counsel, is the most comprehensive of them all and therefore
we shall deal with it first and as typical of the rest. As the rest of the petitions
raise the same questions, it is not necessary to deal with each of them separately.
Writ petitions Nos. 621 and 622. however, raise certain additional questions which
will be dealt with to that extent separately.
Writ Petition No. 619 of 1970 The petitioner in
this Writ Petition passed the Secondary School Leaving examination in March 1968
obtaining first class marks. In March 1969, she passed the Pre-University Course
612 Examination held by the Bangalore University securing 67% marks in optional
subjects, namely, Physics, Chemistry and Biology, and 71% marks in the aggregate.
Her father having retired at Dharwar, she prosecuted her further studies for B.Sc.
Part I examination in the Karnataka Science College, Dharwar, a college affiliated
to the Karnataka University.
She passed the B.Sc. Part I examination held by
that University securing once again a first class.
Under Ordinance 144(c) of the Karnataka University,
a student having passed the B.Sc. Part I examination with Physics, Chemistry and
Biology as his optional subjects would be a eligible for admission to a medical
course provided he has obtained the minimum marks prescribed for admission to that
course from time to time. The petitioner having obtained first class marks in the
B.Sc. Part I examination was, therefore, eligible for admission to the medical course
in the medical colleges affiliated to that University.
There are three universities in Mysore State,
namely, Karnataka, Mysore and Bangalore universities. All the three universities
hold pre-university course examination, the passing of which makes a student eligible
for admission to courses leading to university degrees. But, whereas the Karnataka.
University requires the passing of B.Sc. Part I examination leading to M.B.B.S.
as the minimum qualification for being eligible for medical course, the other two
universities require the passing of what is called the Pre Professional examination,
which is equivalent to B.Sc. Part I leading to M.B.B.S. degree of the Karnataka
University.
The State of Mysore conducts four medical colleges,
the Government Medical College at Mysore, which is affiliated to the Mysore University,
the Government Medical College at Bangalore, which is affiliated to the Bangalore
University, and the Karnataka Medical College at Hubli and the Government Medical
College at Bellary, which are affiliated to the Karnataka University. All the four
medical colleges together have 765 seats in the aggregate. Besides these four institutions,
there are also private managed medical colleges at Manipal, Davangere, Belgaum and
Gulbarga with 120 seats in each of them, admission upto 10% therein being under
the control of the Government.
The State Government has framed rules, called
the Mysore Medical Colleges.(Selection for Admission) Rules, 1970 regulating admission
to Government medical colleges and for a certain number of seats specified therein
in each of the said private medical colleges. Under these rules, the selection for
admission to the Government medical colleges as also for the seats under the control
of the Government in other colleges is entrusted to a selection committee constituted
by the Government.
613 In accordance with the said rules, the petitioner
applied to the selection committee for admission to any one of the medical colleges
affiliated to the Karnataka University. She was, however, not selected. For appreciating
the reasons why the committee could not select her, one has first to examine the
said rules framed by the Government.
These rules are annexure '3' to the writ petition.
Under r.1(2), these rules are to apply for selection for admission to the Pre-Professional/B.Sc.
Part I Course leading to M.B.B.S. in the said Government medical colleges and to
59 seats in the aggregate in the four private medical colleges mentioned therein.
The expression "the Pre Professional/B.Sc. Part I Course leading to M.B.B.S."
has been used in sub-r. (2) of r. 1 to mean Pre-Professional course in Bangalore
and Mysore universities, and B.Sc. Part I course leading to M.B.B.S. in the
Karnataka University.
The scheme under the rules is that on passing
the Pre University Course examination a pupil becomes eligible to apply for admission
to the Pre-Professional Course in Bangalore and Mysore universities and to the B.Sc.
Part I Course leading to M.B.B.S. in the Karnataka University, the common qualification
for eligibility to both the said courses in the three universities being the passing
of the P.U.C. examination. Rule 2 prescribes the qualification for eligibility.
Under this rule the candidate must have passed the P.U.C. examination or the XI
standard of the Higher Secondary Schools examination of any university established
by law in India or of any institution recognized by the State Government, or an
equivalent examination with (i) Physics, Chemistry and Biology, or (ii) Chemistry,
Botany and Zoology as optional subjects, or, as provided by cl.
(b), who is a graduate of any university with
(i) Physics, Chemistry and Biology, or (ii) Chemistry, Botany and Zoology as optional
subjects. Such a candidate must have obtained specified percentage of marks and
must be within the age limit, prescribed by the three universities. Under rule 2,
therefore, there are two categories of candidates who only are eligible for selection;
(1) those who have passed the P.U.C. examination or an equivalent examination, and
(2) those who are graduates, having graduated with the optional subjects specified
therein. The petitioner, not being a graduate, fell under the first category, of
candidates eligible for selection.
Rule 2(2) provides that out of the available number
of seats, after deducting the number of seats set apart under r. 4, 80% of the seats
shall be open for those who have passed the P.U.C. "examination and 20% for
those who are graduates. Rule 4 sets apart in all 60 seats for different categories
of persons, namely, students from Union territories and States where there are no
medical colleges, students from relatively less developed Commonwealth countries,
cultural scholars and students under T.C.S. of the 614 Colombo Plan and special
Commonwealth Assistance Plan, students from Nepal. re patriates from Burma, Ceylon,
Mozambique, children of Defence Personnel and Ex-Defence Personnel, students who
have passed L.A.M.S. and L.U.M.S., lady students taking family planning programme,
children of political sufferers, and lastly, students from Goa. Rule 5 provides
that out of the number of seats available for allotment, after deducting the number
of seats set apart under r. 4, 15% shall be reserved for persons belonging to the
Scheduled Castes, 3% shall be reserved for persons belonging to the Scheduled Tribes
and 30% shall be reserved for persons belonging to socially and educationally backward
classes. Rule 7(1) provides for the constitution of the Selection Committee, and
Cl. (2) thereof entrusts to the Committee the duty to select candidates possessing
the requisite qualification for admission to the said Pre Professional/B.Sc. Part
I Course leading to M.B.B.S. Rules 9 deals with distribution of seats among the
several colleges.
Cl. (1) thereof provides that seats in the general
pool shall be distributed university-wise, that is, seats in colleges affiliated
to the Karnataka University shall be allotted to persons passing from colleges affiliated
to that university, and seats in colleges affiliated to Bangalore and Mysore Universities
shall respectively be allotted to persons passing from colleges affiliated to each
such university, provided that not more than 20% of the seats in the colleges affiliated
to any university may, in the discretion of the Selection Committee, be allotted
to students passing from colleges affiliated to any Other university in the State
or elsewhere in India. The rest of the rules do not affect the petitioner's case,
and therefore, need not be cited.
Briefly, the effect of these rules is that the
qualification for selection to the Pre-Professional Course, as it is known in Mysore
and Bangalore universities, or B.Sc. Part I Course leading to M.B.B.S. in the
Karnataka University, is that the candidate has either passed the P.U.C. examination,
or is a graduate having had the aforesaid optional subjects. The selection is to
be made by the-selection committee under r.7(2) for admission to the Pre-Professional/B.Sc.
Part I leading to M.B.B.S. A student getting admission to the aforesaid course has
thus to pass the Pre-Professional examination held by the Mysore and Bangalore universities,
or B.Sc. Part I leading to M.B.B.S. examination held by the Karnataka University.
It is only after passing this examination that a candidate can prosecute the regular
M.B.B.S. course. The common qualification for being selected for the Pre-Professional
or B.Sc. PartI leading to M.B.B.S. degree being the passing of the P.U.C.examination
or of being a graduate, passing of B.Sc. Part I examination by a student is irrelevant,
as the marks counted for selection are those obtained by him either in P.U.C.examination
or the B.Sc. examination. As already stated, r.2(2) sets 615 apart upto 20% of the
seats for those who are graduates, i.e., those who have obtained B.Sc. degree. A
student passing the P.U.C. examination or an examination equivalent to that examination
can branch off either to (1) Pre Professional/B.Sc. Part I leading to M.B.B.S.,
or (2) B.Sc. degree course. Under the rules no direct admission to M.B.B.S. course
is possible because every student wishing to take up that course. has first to be
selected for the Pre Professional/B.Sc. Part I leading to M.B.B.S. course and pass
the requisite examination in that course.
Though, for the purposes of selection, marks obtained
at the P.U.C. examination or at the B.Sc. examination only are taken into account
and the passing of the B.Sc. Part I examination is for that purpose not relevant,
there appears to be one advantage to a candidate who has passed B.Sc. Part I examination
with the prescribed optional subjects held by the Karnataka University. That advantage,
as appearing from the additional affidavit filed by the petitioner's father and
the correspondence between him and the University authorities, is that such a candidate,
if selected, would be directly admitted to the M.B.B.S. degree course in the medical
colleges affiliated to the Karnataka University. It is not necessary to say anything
about what happens in the other universities since we are for the present not concerned
with such a question.
The second effect of these rules is that if a
student has passed the P.U.C. examination held by a particular university, such
a student is, by virtue of r. 9(1), eligible for admission in the medical college
or colleges affiliated to that university. The Selection Committee, however, has
the discretion to allot seats, upto 20% of the seats in the colleges affiliated
to a university, to students passing from colleges affiliated to any other university
in the State or even elsewhere in India.
Consequently, the petitioner having passed her
P.U.C. examination from Bangalore University could apply for admission in a medical
college affiliated to that university. If she were to apply for admission in a medical
college affiliated to the Karnataka University she could only be selected to a seat
from among seats upto the maximum of 20 % of seats left in the discretion of the
Selection Committee as provided by r. 9(1). It is true that she had got 67% marks
in optional subjects in the P.U.C. examination and students with lesser number of
marks, but passing from colleges affiliated to the Karnataka University, got admission.
But that was because she had passed the P.U.C. examination held by the Bangalore
University and wanted admission in a medical 616 college affiliated to another university.
namely, the Karnataka University.
In view of this consequence, counsel for the petitioner
made three submissions: (1) that once the petitioner was eligible for admission
to a medical college affiliated to the Karnataka University according to the Ordinances
of that university, the State Government could not make rules, the effect of which
was to deprive her of admission (2) that the university-wise distribution of seats
provided under r. 9(1) was discriminatory and being without any rational basis violated
Art. 14 of the Constitution; and (3) that the reservation of seats under rr. 4 and
5 for the various categories of persons set out therein was far more excessive than
permitted by the decisions of this Court and was in violation of Art. 15(4). Consequently,
rr. 4 and 5 laying down such reservation should be held invalid.
We propose to deal with these submissions in the
order in which they were placed before us by counsel. As seen earlier, there are
two sets of provisions dealing with the teaching of medical courses. The first consists
of Ordinances of the universities, and the second consists of the rules framed by
the Government for selection of candidates for admission to the Pre-Professional/
B.Sc. Part I leading to M.B.B.S. degree,. The Ordinances framed by the three universities
are made under the different Universities Acts setting up those universities and
under the powers reserved to them under them. These Ordinances are made for the
purposes set out in those Acts and for carrying out those purposes. One of such
purposes would be the maintenance of certain academic standards in the various faculties
taught in the college affiliated to the universities. For the purposes of maintaining
such standards the universities lay down certain minimum qualifications for eligibility
for entrance in those faculties. These Ordinances and regulations made under the
Acts lay down the minimum qualifications required for eligibility and are not to
be confused with rules for admission. A candidate may have the minimum qualification
so as to make him eligible for entrance in a particular faculty. That does not mean
that his being eligible necessarily makes him entitled to admission in that faculty,
for, admission can only be commensurate with the number of available seats in such
a faculty.
The medical colleges in question are not university
colleges but have been set up and are being maintained by the State Government from
out of public funds. Since they are affiliated to one or the other of the three
universities, the Government cannot frame rules or act inconsistently with the ordinances
or the regulations of the universities laying down standards of eligibility. It
is nobody's case that the Government has made rules which are 617 in any way inconsistent
with the rules for eligibility laid down in such ordinances and regulations.
Since the Government has set up these colleges
and maintains them, it has prima facie the power to regulate admission in its own
institutions. Counsel for the petitioner pointed out to us no provision from the
University Acts which deprives the Government of the power of making rules for admission
in its own colleges. That being so, it cannot be said that the Government has no
power to regulate admission in its own colleges or that because a student is eligible
for admission under the University ordinances, he automatically gets a right to
admission which he can enforce in a court of law.
The rules are limited to admission to the Pre-Professional/
B.Sc. Part I Course leading to M.B.B.S. degree in the Government medical colleges
and in respect of 59 seats in the aggregate in the medical colleges run-by private
management. The control for admission in respect of the 59 seats in the private
colleges must .have been acquired by the Government with the consent of or under
some agreement with those colleges by reason of their getting financial and other
aid from the Government. So long as the rules for selection applicable to the colleges
run by the Government do not suffer from any constitutional or legal infirmity,
they cannot be challenged as the Government can regulate admission to its own institutions.
The objection that it cannot, by such rules, provide for requirements over and above
those laid down by the universities for eligibility cannot be sustained. (See Andhra
Pradesh v. Lavu Narendranath (1) wherein the earlier decisions on this subject have
been examined and followed.) The next contention was that r. 9(1), which prescribes
university-wise distribution of seats results in discrimination for it lays down
a classification which is neither based on any intelligible differentia, nor has
a rational nexus with the object of the rules. The argument was that although there
is one selection committee for all the Government medical colleges in all the three
universities and for the said 59 seats in private colleges, students passing from
colleges affiliated to a particular university are first admitted in Government
medical colleges affiliated to that university and only seats upto 20% in each of
such medical colleges can be allotted to outsiders in the discretion of the committee.
The result is that a student having higher marks than the last admitted student
is deprived of a seat only for the reason that he had passed his P.U.C.
examination from a college affiliated to another
university.
According to counsel, such a classification has
no rational basis and has no reasonable nexus with and (1) C. As. 2161-A and 2161-B
of 1970, dec. on Feb. 11, 1971.
618 is in fact inconsistent with the very object
of establishment of Government medical colleges, namely, to train in medicine the.
most meritorious amongst the candidates seeking admission.
In support of this contention counsel relied on
Rajendran v. Madras (1) where rule 8 of the selection rules framed by the, Madras
Government was struck down on the ground of its being violative of Art. 14. Rule
8 provided that the seats available in the general pool, as also those reserved
for the socially and educationally backward classes would be allotted amongst various
districts on the basis of the ratio of the population of each district to the total
population of the State. The contention was that distribution of seats district
wise would result in denial of' better candidates from being selected and candidates
of inferior calibre getting selected only because they were born in that district
where there were fewer candidates of good calibre. In defence of such a classification,
two reasons were urged:
(1) that if districtwise classification was not
provided, candidates from Madras city would get a larger number of seats in proportion
to the population of the State, elbowing out candidates from the districts, and
(2) if selection was made districtwise, those selected from a district were likely
to settle down as practitioners in that district, so that the districts were likely
to benefit from their training. It was conceded that Art. 14 permitted classification.
But this Court rejected the justification for the aforesaid classifications urged
by the State on the ground that the first meant that candidates from the districts,
admitted to be of inferior calibre than candidates from Madras city, would stand
a better chance of' selection, a result defeating the very object of selection,
namely, to get the best candidates, and the second on the ground that it was neither
pleaded in the counter-affidavit of the State, nor had the State placed any facts
or figures justifying the plea that students selected districtwise would settle
down as medical practitioners in the respective districts where they resided. In
Periakaruppan v. Tamil Nadu (2), a rule which provided for distribution of seats
unitwise and which set up different selection committees for each unit was held
to be bad on the ground that it did not differ much from the districtwise distribution
struck down in Rajendran's case (1). Whereas formerly the distribution was districtwise,
the system under attack established six units where, medical colleges were situate,
namely, Madras city, Madurai, Chingleput, Coimbatore, Thanjavur and Tirunelveli.
Though in theory the candidates had the liberty to apply for any one or more of
those units, they were advised to apply to the unit nearest to, their residence
and were also informed that even if they were to.
(1) [1968]2 S.C.R. 786.
(2) W. Ps. 285 & 314 of 1970, dec. on Sept.
23, 1970.
619 apply to other units, their applications would
be forwarded to the selection committee of that unit which was nearest to their
residence. The consequence of the unit system was clearly to confine the candidates
to the unit nearest to their residence.
It will be easily seen that the university-wise
distribution of seats in the Government medical colleges has nothing in common with
the district wise or unit wise selection struck down in Rajendran's case (1) and
Periakaruppan's case (2).
In both the cases what was mainly objected to
was that the selection would have to be made on the basis either of the place of
birth or residence and the candidate was confined to the medical college at or nearest
to such, a place. Such a basis for selection was held to have no reasonable nexus
with the object of the rules, namely, to select the most meritorious amongst the
candidates to have the advantage of such education. In Periakaruppan's case (1)
there was a further infirmity, in that, there were several committees for selection
resulting in varying standards, thus defeating the very object of screening the
candidates with a view to give chance to the best of them. Both these decisions
are distinguishable as the basis on which the selection of candidates is sought
to be made under the present rules is quite different in that it is neither districtwise
nor unitwise, but is university-wise. Therefore, the in, firmaties found in the
selection rules in those two cases and for which they were struck down cannot be
relevant in any scrutiny of the present rules, much less can they be relied upon
for an attack on them.
The three universities were set up in three different
places presumably for the purpose of catering to the educational and academic needs
of those areas. Obviously one university for the whole of the State could neither
have been adequate nor feaseable to satisfy those needs. Since it would not be possible
to admit all candidates in the medical colleges run by the Government, some basis
for screening the candidates had to be set up. There can be no manner of doubt,
and it is now fairly well settled, that the Government, as. also other private agencies,
who found such centres for medical training, have the right to frame rules for admission
so long as those rules are not 'inconsistent with the university statutes and regulations
and do not suffer from infirmities, constitutional or otherwise. Since the universities
are set up for satisfying-the educational needs of different areas where they are
set up and medical colleges are established in those areas, it can safely be presumed
that they also were so set up to satisfy the needs for medical training of those
attached to those universities. In our view, there is nothing undesirable in ensuring
that those attached to such universities have their ambitions to have (1) [1968]
2 S.C.R. 786.
(2) W. Ps. 285 & 314 of 1970, dec. on Sept.
23, 1970.
620 training in specialised subjects, like medicine,
satisfied through colleges affiliated to their own universities. Such a basis for
selection has not the disadvantage of districtwise or unitwise selection as any
student from any part of the state can pass the qualifying examination in any of
the three universities irrespective of the place of his birth or residence. Further,
the rules confer a discretion on the selection committee to admit outsiders upto
20% of the total available seats in any one of these colleges, i.e., those who have
passed the equivalent examination held by any other university not only in the State
but also elsewhere in India. It is, therefore, impossible to say that the basis
of selection adopted in these rules would defeat the object of the rules as was
said in Rajendran's case (1) or make possible less meritorious students obtaining
admission at the cost of the better candidates.
The fact that a candidate having lesser marks
might obtain admission at the cost of another having higher marks from another university
does not necessarily mean that a less meritorious candidate gets advantage over
a more meritorious one. As is well known, different universities have different
standards in the examinations held by them. A preference to one attached to one
university in its own institutions for post-graduate or technical training is not
uncommon. Rules giving such a preference are to be found in various universities.
Such a system for that reason alone is not to be condemned as discriminatory, particularly
when admission to such a university by passing a qualifying examination held by
it is not precluded by any restrictive qualifications, such as birth or residence,
or any other similar restrictions. In our view, it is not possible to equate the
present basis for selection with these which were held invalid in the aforesaid
two decisions. Further, the Government which bears the financial burden of running
the Government colleges is entitled to lay down criteria for admission in its own
colleges and to decide the sources from which admission would be made, provided
of course, such classification is not arbitrary and has a rational basis and a reasonable
connection with the object of the rules. So long as there is no discrimination within
each of such sources, the validity of the rules laying down such sources cannot
be successfully challenged. (See Chitra Ghosh v. Union of India (2)). In our view,
the rules lay down a valid classification. Candidates passing through the qualifying
examination held by a university form a class by themselves as distinguished from
those passing through such examination from the other two universities. Such a classification
has a reasonable nexus with the object of the rules, namely, to cater to the needs
of candidates who would naturally look to their own university to advance their
training in technical (1) [1968] 2 S.C.R. 786.
(2) [1970] 1 S.C.R. 413, at 418.
621 studies, such as medical studies. In our opinion,
the rules cannot justly be attacked on the ground of hostile discrimination being
otherwise in breach of Art. 14.
The last challenge to the validity of these rules
was based on the allegation that they lay down excessive reservation for certain
categories of candidates. As already stated, under cls. (a) to (i) of r. 4, sixty,
out of the present aggregate of 765 seats at the disposal of the Government, are
set apart for the various categories of persons therein mentioned. As aforesaid,
the Government is entitled to lay down sources from which selection for admission
would be made. A provision laying down such sources is strictly speaking not a reservation.
It is not a reservation as understood by Art. 15 against which objection can be
taken on the ground that It is excessive. The reservation, as contemplated by Art.
15, is the one which is made under r.
5. Under that rule, 15 % reservation is for persons
belonging to the Scheduled Castes, 3 % for Scheduled Tribes and 30 % for socially
and educationally backward classes, that is to say, 48 % in all against 690 available
seats after deducting 60 seats set apart under r. 4. But, setting apart 15 seats
under r. 4(g) for candidates who take up family planning programme does not constitute
a reservation as any one of the lady candidates can take up that programme. Therefore,
the seats available for distribution would be 720, 48 % of which are reserved under
r. 5. The question is whether such a reservation is unreasonably excessive.
It was not disputed that under Art. 15(4) the
State was entitled to make special provisions for the advancement of socially and
educationally backward classes. It has to be remembered that the object of Art.
15(4) is to advance the interests of the society as a whole by looking after the
interests of its weaker sections. But as stated in Balaji v. Mysore (1), while making
such a provision the rights and interests of the rest of the society are not to
be absolutely ignored. Consideration for the rest of the society and those who are
its weaker elements have both to be kept in mind and taking the prevailing circumstances
as a whole have to be adjusted. The impugned provision in Balaji's case (1) made
reservation of 68% of the seats for the socially and educationally backward classes
in medical and engineering colleges. Such a high percentage was held to amount almost
to an exclusion of the deserving and qualified candidates from other communities,
which also was not in the interests of the society as a whole. The Court there observed
that in adjusting the claim of both the weaker and the stronger elements the reservation
for the former should ordinarily be less than 50%, although no inflexible percentage
could be fixed and the actual reservation must depend upon the relevant prevailing
circumstances in each case. In (1) [1963] Supp. 1 S.C.R. 439.
622 Periakaruppan's case (1) 41 % reservation
for the socially and educationally backward classes was held not to be excessive.
No materials have been placed before us which would show that in the circumstances
prevailing in Mysore State reservation made under r. 5 is unreasonably excessive.
Setting apart 60 seats under r. 4 is as already
stated, not a reservation but laying down sources for selection necessitated by
certain overriding considerations, such as obligations towards those who serve the
interests of the country's security, certain reciprocal obligations and the like.
The reservation, under r. 5, though apparently appearing on the high side, not having
been shown as unreasonably excessive, the contention in regard to it must fail.
These were the only three heads under which the
validity of the rules was challenged. For the reasons set opt above, none of them
can be upheld. The writ petition,, therefore, fails and has to be rejected.
Writ Petition No. 621 of 1970 The petitioner here
was born on August 2, 1954 at Bellary.
Bellary had become part of the State of Mysore
on October 1, 1953 in consequence of the reorganization of States. In April 1954,
her father, who was till then serving as a Government servant in the State of Mysore,
was transferred to Andhra Pradesh where he continued to serve until his retirement
from service on June 11, 1970. According to para (2) of the petition, the petitioner
was during this period with her father at Cuddappah in Andhra Pradesh where he was
serving. In 11968-69, the petitioner passed her S.S.L.C.
examination at, Cuddappah obtaining first class
marks. In 1969-70, she passed her P.U.C. examination from a Government college affiliated
to Venkateswara University in Andhra Pradesh with Physics, Chemistry and Biology
as her optional subjects, securing in those subjects 150 out of 200 marks, i.e.,
75%.
On July 22, 1970, she made an application for
selection to a seat in any one of the medical colleges affiliated to the
Karnataka University. An interview card was issued to her which bore No. K-20, which
signified that she was a candidate for selection for admission in a medical college
affiliated to the Karnataka University. on October 6, 1970, the Selection Committee
published a list of selected candidates, but her name was not included in the said
list.
According to the petition, the last student admitted
to the Bellary Medical College in the general pool of seats, (that is from the balance
of seats, after deducting from the total number of seats reserved under rr. 4 and
5) had obtained less marks in the P.U.C. examination than marks obtained by her,
that is, 295 out 450 marks which would be 65.6%. The last student ad(1) W. P.S.
285 & 314 of 1970, decd. on Sep. 23, 1970.
623 mitted to the Karnataka Medical College, Hubli
had also obtained 295 out of 450 marks, i.e. 65.6%. Both these students had passed
the P.U.C. examination held by the Karnataka University.
The reason for non-inclusion of the petitioner's
name in the said list given by the Selection Committee was that she was not "
a resident in the State of Mysore for not less than 10 years at any time prior to
the date of the application for a seat" as required by r. 3 of, the said Rules.
Rule 3 requires that to be eligible for selection, a candidate must be (a) a citizen
of India, (b) a per-son domiciled in the State of Mysore, and (c) a resident of
the State for at least 10 years at any time before the date of application.
Rule 9(1) provides that seats other than those
reserved under r. 4 shall be distributed university-wise, i.e., seats in colleges
affiliated to the Karnataka University shall be allotted to persons passing from
colleges affiliated to that university, and seats in colleges affiliated to Bangalore
and Mysore universities shall respectively be allotted to persons passing from colleges
affiliated to each such university. That rule, however, has a proviso which lays
down that not more than 20% of the seats in colleges affiliated to any university
'may in the discretion of the Selection Committee be allotted to students passing
from colleges affiliated to. :any other university in the State or elsewhere in
India. Thus, candidates applying for selection fall into two categories: (1) those
having passed the P.U.C. examination from colleges affiliated to that university
to which a medical college in which admission is sought is affiliated, and (2) those
having passed the P.U.C.
examination or an equivalent examination held
by other universities in Mysore State or even elsewhere. The petitioner, therefore,
belonged to the second category inasmuch as she was a candidate who had passed her
P.U.C.
examination not through a college affiliated to
the Karnataka University, but one who had passed the P.U.C. examination from a university
to which none of the medical colleges in Karnataka was affiliated. Therefore, the
proviso to r. 9(1) would be applicable to her and she would be ,eligible for selection
only from out of the 20% of the seats at the most left in the discretion of the
selection committee.
No question relating to r. 9, however, was raised.
The case, placed before us on behalf of the petitioner, was that she was a person
who had a domicile in Mysore State and had resided in the State during the period
prescribed by r. 3 and was, therefore, entitled to be considered along with the
rest of the candidates. Even assuming that to be so, the question is whether she
satisfied the conditions 'of r. 3 as regards residence.
Annexed to her application for selection, dated
July 22, 1970, was a certificate from the Tehsildar, Bellary, certifying that she
had not only her domicile in Mysore State but that she had also resided in the State
for a period of 10 years prior to the date of 624 her application. In column 13
of the application, where particulars of institutions where the candidate had studied
had to be given, it was stated that the petitioner had studied in Bellary during
the years 1959 to 1963, and thereafter, from 1963-64 to 196869 in different institutions
in Andhra Pradesh. We will assume, though her father was in Andhra Pradesh where
he served from 1954 to June 1970, that she was kept in her infancy in Bellary, the
total period of her residence would prima facie come to little less than 9 years,
i.e., from August 2, 1954, her date of birth, to 1963. Therefore, the certificate
obtained from the Tehsildar, certifying that she had resided in Mysore for 10 years
at any time prior to the date of her application, would appear not to be factually
correct.
This difficulty, however, was sought to be got
over by the affidavit in rejoinder filed by her father in which it was stated that
though the petitioner had been studying in Andhra Pradesh after 1963, she used to
come to the family house in Bellary during her vacations, and therefore, she must
be deemed to have resided all throughout at Bellary.
Such an explanation, however, suffers from two
defects : (1) that such a plea was made for the first time in the affidavit in rejoinder
in answer to the counter affidavit filed by the respondents, and (2) that residence
as contemplated by r. 3 must prima facie have an element of continuity or regularity
in residence and would not mean an intermittent stay such as during the vacations.
It would thus appear that the petitioner did not, notwithstanding the certificate
of residence issued by the Tehsildar, comply with the requirement of 10 years' residence
under r. 3.
However, for the reasons stated hereafter it is
not necessary to go into these questions either as regards the facts relating to
her residence In Bellary or the validity of r. 3 sought to be challenged in this
petition.
It is true that the petitioner obtained in the
P.U.C.
examination held by Venkateswara University, 150
out of 200 marks in optional subjects taken by her, but as her application itself
shows, the total number of marks secured by her in that examination were 3 89 out
of 600 marks, i.e., 65 %. Even according to her, the last student who secured selection
for the Bellary Medical College had secured 295 out of, 450 marks, i.e., 65.6%.
The same percentage of marks was also secured by the last student admitted to the
Karnataka Medical College, Hubli, both these students having passed the P.U.C. examination
held by the Karnataka University. Therefore, even irrespective of the fact whether
she had qualified herself or not under r. 3, she could not have been selected for
either of these two colleges in Karnatak.
The argument that she had been discriminated against
in the sense that though she had secured 75 % marks she was not 625 selected and
others, with lesser number of marks than those secured by her were selected for
medical colleges affiliated to the Karnataka University was founded on a wrong premise.
For comparison between herself and the said two
candidates she took her marks in optional subjects only and apparently compared
them with the total marks obtained by the said two students in the whole of the
P.U.C. examination. There was thus no comparison between person equally situated
even as regards the number of marks secured by them. But apart from that, the result
obtained by a student in an examination held by one university cannot be regarded
as comparable with the result obtained by another candidate in an examination held
by another university. Even assuming that a conscious effort is made to equalise
standards obtaining in different universities, such standards depend on several
human factors, methods of teaching and examining, the syllabus in such universities
etc. even though the subjects taught and examined were to be the same. It is well
settled that a question of discrimination can only arise in the case of persons
equally situated. That the petitioner and those whom the Selection Committee selected
were equally situated cannot, from the facts above stated, be assumed.
Consequently, the argument that r. 3. by prescribing
the 10 years' residence in Mysore State as a qualification for eligibility, is arbitrary
and discriminatory becomes academic and need not be gone into in the present writ
petition as the petitioner, even without insisting on that qualification, was not
entitled to be selected.
In this view the petition cannot succeeded and
has to be dismissed.
Writ Petition No. 622 of 1970 The petitioner is
a science graduate having passed her B. Sc. examination held by the Bangalore University
in 1969.
In that examined, she secured 505 out of 1000
marks, i. e., 50.5%. On July 23, 1970, she applied for being admitted to the Pre-Professional
Course in Medicine. Her name did not appear in the list of selected candidates issued
by the Selection Committee under the Rules for Selection of Candidates for Admission,
1970 framed by the State Government. Aggrieved by the non-inclusion of her name,
the petitioner filed this writ petition.
Besides raising several disputes which are common
to other writ petitions in the present batch, she raised an additional issue. challenging
the validity of r. 4(h) of the said Rules. As already stated, the rule provides
for reservation of seats for different categories of candidates applying for selection
and cl. (h) reserves 4 seats each in the medical colleges at Bangalore, Mysore and
Hubli, and 3 seats in the Medical College at Bellary, 401 S.C. India/71 626 in all
15 seats, for the "Children of Political Sufferers".
The petitioner did not challenge the reservation
of seats made in this rule for other categories of persons, such as children of
Defence Personnel and Ex-Defence Personnel, etc.
The challenge to the validity of cl. (h) was two
fold. It was firstly, said that the expressions "political sufferer" and
"the national movement for the emancipation of India" in the definition
of a "political sufferer" are so vague ambiguous that it would be impossible
to identify the category of persons for whose benefit cl. (h) was framed, and consequently,
there would be ample room for those administering these rules to resort to partiality,
discrimination and favouritism. The second objection was that the category of children
of political sufferers was merely fanciful, politically oriented and without any
intelligible differentia, and as such the classification had no reasonable nexus
with the object of these rules. A number of decisions of different High Courts dealing
with similar admission rules were cited for reinforcing the argument against the
validity of cl. (h) of r. 4.
So far as the first part of the argument is concerned,
it is difficult to envisage the danger apprehended by counsel or to see the kind
of vagueness or ambiguity complained of by him. The rule contains the definition
of a "political sufferer" as meaning a person who "on account of
participation in the national movement for the emancipation of India" had suffered
imprisonment or detention for a period of at least six months, or had been awarded
capital punishment, or had died while undergoing imprisonment or detention or was
killed or became permanently incapacitated by police or military firing or lathi
charge, or lost his "job, property or other means of livelihood". The
definition is couched in clear and unambiguous language, besides containing sufficient
details, so as to distinctively identify the persons who would fall within it.
The person must have suffered incarceration, whether
as imprisonment or detention, for a period of at least six months or been awarded
capital punishment, or must have died while actually in detention or undergoing
imprisonment, or killed or incapacitated permanently by firing or lathi charge by
the police or by the military, or must have lost employment, property or other means
of livelihood. 'These should have been the consequences of his having participated
in the national movement for the emancipation of India. The "national movement"
must obviously mean the late struggle for the freedom of the country from the alien
British rule.
The ambiguity, counsel complained of, in these
words in the definition is difficult to comprehend. There are ample details in the
definition not to leave any scope for arbitrariness or discrimination in its application
to a candidate 627 who claims to be a child of the political sufferer envisaged
by cl. (h) of the rule. We, therefore, turn to the second part of the .argument
without detaining ourselves any further on the grievance of ambiguity in the definition.
The argument is that the category of children
of political sufferers is arbitrary in the sense that it is entirely politically
oriented, is without any rational differentia and has no nexus with the object of
the rules. In support of the argument against such a category, the case of Surendrakumar
v. State (1) was cited as an illustration where a similar category had been struck
down. The State Government there had made reservation of seats which was incorporated
in the prospectus issued by each of the five medical colleges run by the Government.
The reservation was ,challenged on the ground of its infringing Art. 14. The reservation
was in respect of 5 categories of candidates, namely, (1) for foreign private students,
cultural scholars' and private students of .Indian origin domiciled abroad, (2)
students migrating from Burma ;(3) candidates from Scheduled Castes and Tribes belonging
to Rajasthan, (4) children of Defence personnel belonging to Rajasthan, and (5)
children of political sufferers who are or were bona fide residents of Rajasthan
and who had been to jail in any part ,of India.
Among other things, the reservation for children
of political sufferers was made the target of the challenge.
The High Court upheld the challenge on the grounds
(1) that if the ,object was to afford facilities to political sufferers, there was
no reason why the benefit was restricted to the residents of Rajasthan only, (2)
that the expression 'political sufferer' not being a term of art, opinions might
honestly differ as to what sacrifices would be sufficient to clothe a person with
the status of political sufferer, (3) that the independence movement came to an
end several years ago, and therefore, if any facilities were to be afforded to these
who had suffered by their participation in it they could be given once only, and
(4) that there was no justification for such a classification as the only valid
classification could be for obtaining the best material for medical profession and
such a reservation could not achieve but on the contrary defeat that object.
In two other decisions, Umesh Chandra v. V. N.
Singh(2) and Kerala v. Jacob, (3) a provision authorising special preference to
the children of the employees of the University who had rendered meritorious service
to the University, and a provision for reservation for children of registered medical
practitioners in modem medicine were struck down, the first on the ground that it
would lead to favouritism and patronage, and the second on (1) A. I. R. 1969 Raj.
182. (2) [1967] 1 L. R. 46 Put. 616.
(3) A. I. R. 1964 Ker. 316.
628 the ground that the classification was not
a rational one.
Ram chandra v. State (1) is yet another case where
the High Court, dealing with rules providing for 3% of the seats for children of
bona fide political sufferers as defined in M.
P. Freedom Fighters Pension Rules, 1959, observed,
though it declined to set them aside on other grounds, that "the preferential
treatment accorded to them (the children of political sufferers) is based upon irrelevant
and wholly extraneous considerations because there is no rational relation between
the political suffering of a person and the education imparted to his descendants
in a medical college with the object of promoting efficiency in the medical profession".
On account of paucity of institutions imparting
training in technical studies and the increasing number of candidates seeking admission
therein, there is obviously the need for classification to enable fair and equitable
distribution of available seats. The very decisions relied on by counsel for the
petitioner implicitly recognise the need for classification and the power of those
who run such institutions to lay down classification. In Rajendran's case (5 this
Court impliedly accepted two sources of recruitment made under the rules there challenged,
namely, (1) those competing for seats in the general pool, and (2) those from the
socially and educationally backward classes for whom reservation permitted under
Art. 15(4) was made. What was struck down there was the districtwise distribution
based on sheer residence as that would defeat the very object of the rules, namely,
the selection of the best and the most meritorious from the two sources of recruitment.
The power to lay down sources from which selection would be made was expressly conceded
to the Government in Chitra Ghosh v.
Union of India, (3) this Court observing in that
connection at pp. 418 and 419 of the report that since it was the Government which
bore the financial burden of running the medical college, it could lay down the
criteria for eligibility and that from the very nature of things it was not possible
to throw the admission open to students from all over the country. Consequently,
the Government could not be denied the right to decide from what sources admissions
would be made. The Court at the same time emphasised that if the sources were properly
classified, whether on territorial, geographical or other reasonable basis, the
Court would refuse to interfere with the manner and method of making the classification.
The classification there made were in relation to candidates from Union territories
other than Delhi, children of Central Government servants posted in Indian missions
abroad, candidates under the Colombo Plan and other international arrangements,
scholars from Jammu & Kashmir, etc. These classifications were found justifiable
on one (1) A. I. R. 1961 M.P. 247.
(3) [1970] 1 S.C.R. 413(2) [1968] 2 S.C.R. 786.
629 ground or the other and as based on intelligible
differentia which distinguished candidates falling within them from the rest. The
Mysore High Court, in Subhashini v. State (1) similarly recognized that there could
be valid reservations, apart from those permissible under Art. 15 (4), that such
reservations did not necessarily infringe the equality protection under Art. 14
and held that classification based on a lawful State policy was-not violative of
that Article.
It upheld on this principle the reservation for
children of Defence Personnel, Ex-Defence personnel as being clearly in national
interest. (See also Anil Kumar v. Mysore (2):
Once the power to lay down classifications or
categories of persons from whom admission is to be given is granted, the only question
which would remain for consideration would be whether such categorisation has an
intelligible criteria and whether it has a reasonable relation with the object for
which the Rules for admission are made. Rules for admission are inevitable so long
as the demand of every candidate seeking admission cannot be complied with in view
of the paucity of institutions imparting training in such subjects as medicine.
The definition of a 'political sufferer' being a detailed one and in certain terms,
it would be easily possible to distinguish children of such political sufferers
from the rest as possessing the criteria laid down by the definition. The object
of the rules for admission can obviously be to secure a fair and equitable distribution
of seats amongst those seeking admission and who are eligible under the University
Regulations. Such distribution can be on the principle that admission should be
available to the best and the most meritorious. But an equally fair and equitable
principle would also be that which secures admission in a just proportion to those
who are handicapped and who, but for the preferential treatment given to them, would
not stand a chance against those who are not so handicapped and are, therefore,
in a superior position. The principle underlying Art. 15 (4) is that a preferential
treatment can validly be given because the socially and educationally backward classes
need it, so that in course of time they stand in equal position with the more advanced
sections of the society. It would not in any way be improper if that principle were
also to be applied to those who are handicapped but do not fall under Art. 15(4).
It is on such a principle that reservation for children of Defence personnel and
Ex-Defence personnel appears to have been upheld. The criteria for such reservation
is that those serving in the Defence forces or those who had so served are and were
at a disadvantage in giving ,education to their children since they had to live,
while discharging their duties, in difficult places where normal facilities avail(1)
A. I. R. 1966 Mys. 40.
(2) 1969 17 L. R. (Mysore) 110.
630 able elsewhere are and were not available.
In our view it is not unreasonable to extend that principle to the children of political
sufferers who in consequence of their participation in the emancipation struggle
became unsettled in life; in some cases economically ruined, and were therefore,
not in a position to make available to their children that class of education which
would place them in fair competition with the children of those who did not suffer
from that disadvantage. If that be so, it must follow that the definition of 'political
sufferer' not only makes the children of such sufferers distinguishable from the
rest but such a classification has a reasonable nexus with the object of the rules
which can be nothing else than a fair and just distribution of seats. In our view,
neither of the two contentions raised by counsel for the petitioner can be accepted,
with the result that the writ petition .fails and is dismissed.
Writ petitions Nos. 618 and 620 of 1970 raise
questions similar to those dealt with hereinbefore. In accordance with the reasons
hereinbefore given, they fail and are dismissed.
The result is that all the five petitions are
dismissed. In the circumstances of the case we make no order as to costs in any
one of them.
Dua, J.-I have read the judgment prepared by my
learned brother Shelat, J., and I agree that all the writ petitions should be dismissed
with no order as to costs. I should, however, like, as at present advised, to refrain
from expressing any considered opinion on the validity of r. 4(h) of the Mysore
Medical Colleges (Selection for Admission) Rules, 1970. The category of persons
in whose favour seats in the Medical Colleges mentioned in this sub-rule are reserved
are described as "children of political sufferers".
The expression "political sufferer"
is defined in Explanation (ii) to mean:
"a person who on account of participation
in the national movement for the emancipation of India(a) has suffered imprisonment
or detention for a period of not less than six months, the said period being calculated
taking into account the period of remission, if any, granted for good conduct and
other like reasons, or had been awarded capital punishment or had died while undergoing
imprisonment or detention; or (b) was killed or became permanently incapacitated
by police or military firing or lath charge or 631 (c) lost his job, property or
other means of livelihood." The petitioner's learned counsed relied on several
decisions in support of his challenge to the validity of this sub-rule on the ground
that this reservation has no rational nexus with the object of selecting the most
meritorious or suitable candidates for medical education so that they may be able
both to serve the people as doctors with the requisite efficiency and to find adequate
means of livelihood for themselves. According to the petitioner's argument the mere
fact that the parents of such candidates had before 1947, as a result of their participation
in national movement for the emancipation of India from the foreign rule, suffered
imprisonment, detention, disablement, or loss of property or job, does not necessarily
clothe them with an intelligible differentia distinguishing them as a separate class
in 1970 for admission to the Medical Colleges. It was contended that what may have
happened more than 23 years ago (as no question of the national movement.
for the emancipation of India could arise after
Indian independence) is far too remote in point of time for serving as a rational
differentia for sustaining the present classification in favorite of the children
of such political sufferers. It was not denied that the Government could and should
extend all help needed to rehabilitate such sufferers in order, so far as reasonably
possible, to undo or minimise the effect of, or to compensate them for, their suffering
during the national movement. But that is quite different from giving their children
preference over other candidates otherwise equally placed in the matter of admission
to Medical Colleges in 1970, unless there are cogent grounds for holding that because
of their parents' suffering prior to 1947 the children have been so handicapped
as to require a favoured treatment in this respect. The case of the children of
defence personnel, it was urged, clearly stands on a different footing, as in their
case from the very nature of the duties of the defence personnel their children
are generally speaking likely to suffer from handicaps justifying preferential treatment.
Minor P. Rajendran v.State of Madras (1) was cited in support of the submission
that the fact that classification by itself is reasonable is not enough to support
it, unless there is a nexus between the classification and object to be achieved
and also that the object to be achieved in a case of admission to the Medical Colleges
is to get the best talent for admission to professional colleges.
The learned Attorney-General, however, drew our
attention to Chitra Ghosh v. Union of India (2) in which after approving the view
taken in Minor P. Rajendran's case (1), it was added that the object of selecting
the best possible material can be (2) [1970] 1 S. C. R. 413.
(1) [1968]2 S.C.R. 786.
632 achieved by making proper rules for admission.
Permissible classification, according to the petitioner's argument, must be founded
on an intelligible differentia distinguishing persons grouped together from others
left out of the group, and the differentia must have a rational relation to the
object sought to be achieved by the provision in question.
It was emphasized that what has to be seen is
the distinguishing feature existing at the time of the admission and the fact that
the parents of the candidates had suffered by their patriotic activities admittedly
more than 23 years ago does not reasonably lead to an inference that in 1970 also
the children of such political sufferers constituted a class by itself requiring
preference over other candidates seeking admission to the Medical Colleges.
The learned Attorney-General apart from relying
on the case of Chitra Ghosh (1) submitted that the petitioner in Writ Peti-No. 622
of 1970 (R. Jayashree), in which case alone this sub-rule was challenged, had obtained
marks which were lower than the last candidate admitted from the category of the
children of political sufferers. On this ground it was submitted that, even assuming
r. 4(h) to be invalid, the petitioner could not claim admission, because her marks
were admittedly lower than those of the last candidate admitted from the category
of the children of political sufferers.
Those children, even ignoring r. 4(h), had a preferential
right as against the petitioner R. Jayashree. In that situation the learned Attorney-General
contended the question of the invalidity of r. 4(h) loses all importance and would
hardly be material.
I must confess that from the very beginning it
entertained some doubt about the validity of r. 4(h), and that doubt has not been
dispelled even after hearing the arguments addressed at the Bar. The object of selection
for admission to the Medical Colleges, considered in the background of the directive
principles of State policy contained in our Constitution, appears to be to select
the best material from amongst the candidates in order not only to provide them
with adequate means of livelihood, but also to provide the much needed medical aid
to the people and to improve public health generally. As already observed, I am
not quite sure if it can be confidently said that there is a reasonable nexus between
the differentia on which the children of political sufferers are classified as a
distinct group and the object of admission to the Medical Colleges. In view, however,
of the admitted fact that the marks secured by the petitioner R. Jayashree were
lower than the marks secured by the last candidate admitted from the category of
the children of political sufferers, the petitioner was not entitled to claim admission,
even if the children of political sufferers were not given any priority. On this
ground alone the (1) [1970] 1 S.C.R. 413.
633 present Writ Petition (No. 622 of 1970) deserves
to be dismissed. I according consider it unnecessary to go into the question of
the invalidity of r. 4(h) in this case. I would thus confine the order of dismissal
of Writ Petition No. 622 of 1970 only on this ground without expressing any considered
opinion on the question of the validity of r.
4(h). Except for my reservation on this point,
I am in respectful agreement with all that has been said by my learned brother Shelat,
J.
G.C. Petition dismissed.
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