State of Kerala Vs. Kumari T. P.
Roshana & ANR [1979] INSC 9 (17 January 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION: 1979 AIR 765 1979 SCR (2) 974 1979
SCC (1) 572
CITATOR INFO :
RF 1980 SC1230 (31) D 1981 SC2045 (12,18) R
1983 SC 580 (9) R 1985 SC1495 (127)
ACT:
Constitution of India 1950-Art 14-Medical
College admission-Selection of students from different universities with no
uniformity of standards-Reservation of seats on territorial
basis-Validity-Whether violative of Art. 14.
HEADNOTE:
Articles 32 and 136-When root of the
grievance and the fruit of writ are not individual but collective courts power
is one of affirmative structuring of redress to make it meaningful and socially
relevant-Decisional guidelines to be given.
The State of Kerala appointed a Commission to
recommend which sections of the people required special treatment under Art.
15(4) having regard to their social and educational conditions. That Commission
recommended equitable allocation of seats on the bais of education backwardness
of the Malabar area. Substantially founding itself on these recommendations the
these recommendations the State Government evolved a formula, which by polling
all applications for admission to the four medical colleges in the state one
consolidated list was prepared and candidates were selected strictly according
to the marks secured by them.
This scheme having been struck down by the
High Court, a fresh expert committee was appointed to examine the quo modo of
admissions to medical colleges. The Government on the basis of these
recommendations decided that seats available for the medical course might be
distributed for the students of the two-1, Universities of Kerala and Calicut
in the ratio of the candidates registered for the pre-degree and B. Sc. course
in them.
In a writ petition under Art. 226 the High
Court held that the scheme of selection for admission to the medical colleges
on an assessment of merits of students drawn from different universities with
no uniformity of standards is objectionable and the linkage of the division of
seats with the registered student-strength of the universities bears no nexus
and is violative of Art. 14 of the Constitution.
On the question of the validity of the scheme
of selection for admission to the medical colleges.
HELD : 1. Current conditions warrant the
classification of student community on the zonal basis-not as a legitimation of
endless perpetuation but as a transient panacea for a geo-human hadicap which
the State must actively strive to undo.[980E] 2.The principal of reservation
with weightage for the geographical area of the Malabar district is
approved.[980 G] 3 The reasoning of the High Court that there is such
substantial difference in the pre-degree courses and evaluations between the
sister universities within the same State that the breach of Art. 14 by equal
treatment of the marks un- 975 equally secured by the examinees in the two
Universities may be spelt out. Every inconsequential differentiation between
two things does not constitute the vice of discrimination, if law clubs them
together ignoring vanial variances.
Article 14 is not a voodoo which visits. with
invalidation every executive or legislative fusion of things or categories
where there are no pronoanced inequalities.
Mathematical equality is not the touchstone
of constitutionality. [983 E-F] State of Jammu & Kashmir v. Triloki Nath
Khosa & Anr.
[1974] 1 SCC 19 at 42 referred to.
4. A large latitude is allowed in this area
to the State to classify or declassify based on diverse considerations of
relevant pragmatism and the judiciary should not "rush in" where the
executive varily treads. [984 A]
5. Many colleges are run by the State or
institutional managements where pre-degree or degree courses are undertaken,
The teachers move from one university jurisdiction to the other, the teaching
material is inevitably of a like nature, the subjects taught must ordinarily be
alike. The examiners are usually drawn from within the State or neighbouring
States. Even the composition of the academic bodies in the two universities may
have common members. The University Act themselves are substantially similar.
To surmise discrimination from possibilities is alien to the forensic process
in the absence of hand facts. Gross divergences exist amoung Universities
affecting the quality of the teaching and the inaiking. the anomalies of
grading and the absurdity of equating the end product on the blind assumption
that the same marks mean the same excellence. But not glib surmises but solid
facts supply the sinews of discriminatory inequality or equality. Some backward
universities and colleges have degenerated into degree-dealers bringing rapid
discredit to Indian Academic status. [984 D-F]
6. The vagarious element in marking and
moderation of marks may be a fact of life, but too marginal to qualify for
substantial difference unless otherwise made out Indeed.
there may be differences among the colleges
under the same University. among the examiners in the same University. Such fleeting
factors or eohemeral differences cannot be the solid foundation for a
substantial differentiation which is the necessary pre-condition for quashing
an executive or legislative act as too discriminatory to satisfy the
egalitarian essence of Art 14. [984 H-985 A]
7. The functional validation of the writ
jurisdiction is an appropriate examination of the substantiality of the alleged
disparity. [985 B]
8. The corner-stone of classification adopted
for medical admission. by the Government was University-wise allocation. By
itself. this approach had constitutional sanction. [986 C] D. N. Chanchala v.
State of mysore & Ors. etc. [1971] Supp. SCR 608; relied on
9. The discriminatory vice,if University-wise
classification and consequential allocation of seats were resorted to, was
pressed therein but repelled. The fundamental `educational realities and
resultant resolution of the legal imbrogliro are instructively presented
therein, which have special relevance to the instant case because the social
facts, constitutional confrontations and administrative answers in the Kerala
and Karnataka litigations are similar. [986 D, 986 H-987 A] 976 10.The
injection of the University-wise student strength is drawing the redherring
across the trail-an irrelevance that invalidates the scheme. There is no nexus
between the registered student strength and the seats to be allotted. The fewer
the colleges the fewer the pre-degree or degree students. And so, the linkages
of the division of seats with the registered student strength would make an
irrational inroad into the University-wise allocation. Such a formula would be
a punishment for backwardness, not a promotion of the advancement. The
discriminatory paring down based on unreason cannot be upheld. [990 G-H]
11. Law is not unimaginative, especially in
the writ jurisdiction where responsible justice is the goal. The court cannot
adopt a rigid attitude of negativity and sit back after striking down the
scheme of Government leaving it to the helpless Government caught in a crisis
to make-do as best as it may, or throwing the situation open to agitational
chaos to find a solution by demonstrations in the streets and worse. In the
instant case unable to stop with merely declaring that the scheme of admission
accepted by Government is ultra vice and granting the relief to the petitioner
of admission to the medical colleges, the need for controlling its
repercussions calls for judicial response. [991 H-992 A]
12. An incisive study of the exercise of the
writ power in India may reveal that it limits its actions by quashing or
nullifying orders proceeding on a violation of law, but stops short of a
reconstruction whereby a valid scheme may replace a void project. This is
symptomatic of an obsolescent aspect of the judicial process, its remedial
shortcomings in practice and the need to innovate the means, to widen the base
and to organise the reliefs so that the Court actualises social justice even as
it inhibits injustice. [978 A-B]
13. This community perspective of the justice
system explains why the Court has resorted to certain unusual directions and
has shaped the ultimate complex of orders in these proceedings in a self-acting
package. Chronic social disability cannot be amenable to instant administrative
surgery and law shall not bury its head, ostrich fashion, in the sands of
fiction and assume equality where the opposite is the reality. [978 C, 980 C]
14. The rule of law runs close to the rule of
life and where socieal life, as between one part of the State and another, is
the victim of die-hard disparties, the constitutional mandate of equal justice
under the law responds to it pragmatically and permits classification geared to
eventual equalisation.
15. The writ of this Court binds the parties
on record who must abide by the directions issued necessitated by the exigency
of the situation and the need to do justice. [993 D]
16. The court system belongs to the people
and must promote constructive justice; and all institutions, including the
Governments and Universities, likewise belong to the people. This commitment is
the whet-stone for doing justice in the wider context of social good. [993 E-F]
17. Leaving the Judgment of the High Court in
the conventional form of merely quashing the formula of admission the remedy
would have aggravated the malady, confusion, agitation, paralysis. The root of
the grievance and the fruit of the writ are not individual but collective and
while the "adversary system" makes the Judge a mere umpire,
traditionally speaking, the community orientation of the judicual function, so
desirable in the Third World remedial juris- 977 prudence, transforms the
courts' power into affirmative structuring of redress so as to make it
personally meaningful and socially relevant. Frustration of invalidity is part
of the judicial duty; fulfilment of legality is complementary. This principle
of affirmative action is within the court's jurisdiction under Art 136 and Art.
32 and the present cases deserve its exercise. Decisional guidelines given.[994
B-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2297 of 1978.
Appeal by Special Leave from the Judgment and
Order dated 13-11-78 of the Kerala High Court in O.P. No. 3239/78.
AND WRIT PETITION NO. 4705/78 M. M. Abdul
Khader, Adv. Genl. for Kerala, V. J.
Francis and Mustafa K. Rowter for the
Appellant in C.A. 2297/78 and Respondents in W.P. 4705/78.
P. V. Govindan Nair, N. Sudhakaran and Mrs.
Baby Krishnan for the Petitioner in W.P. No. 4705/78 and Respondent No. 1 in CA
2297/78.
Dr. V. A. Sayid Muhammad, S. K. Mehta, P. K. Shamshuddin,
P. N. Puri and E. M. Sarul for the Interveners.
A. S. Nambiar for Respondent No. 3 in CA
2297/78.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-The dynamics of the writ jurisdiction and the potential for
affirmative court action, as part of remedial jurisprudence, constitute the key
thought which animates the ultimate decision and direction we give in this
couple of cases which have come up by Special Leave and under Art. 32 to this
Court, aware as we are of a host of like proceedings which pend in the High
Court.
The State of Kerala is the appellant in the
civil appeal and 1st respondent in the Writ Petition but the collective
litigation springs from a traditional type of action and typical kind of relief
granted in exercise of its writ jurisdiction by the High Court striking down a
transitory scheme of admission to the medical colleges of the State evolved by
the Government but invalidated.by the High Court on the ground of
discrimination in the distribution of seats among the eligible students drawn
from two disparate regions of the State. Of course, the instant repercussion of
the decision is apt to be confusion in the admission to the academic courses
which have hardly commenced and this desperate situation has driven the
Government to this Court seeking reversal of the Judgment under appeal. Law
promotes order, not anomie.
978 Any incisive study of the exercise of the
writ power in India may reveal that it limits its action to quashing or
nullifying orders proceeding on a violation of law, but stops short of a
reconstruction whereby a valid scheme may replace a void project. This is no
reflection on the High Court's ruling but is symptomatic of an obsolescent
aspect of the judicial process, its remedial shortcomings in practice and the
need to innovate the means, to widen the base and to organise the reliefs so
that the court actualises social justice even as it inhibits injustice.
This community perspective of the Justice
System explains why we have resorted to certain unusual directions and have
shaped the ultimate complex of orders in these proceedings in a self-acting
package. With this exordium we proceed to narrate briefly the necessary facts
and developments revelatory of the course of events and the cause of action,
the impact of the High Court's judgment and the compulsions which have brought
the State in appeal to this Court.
The Kerala State, notwithstanding its
striking demographic, cultural, linguistic and political integrality and
educational advance, has certain historical hangovers of academic disparity and
developmental maldistribution which have survived for two decades as this case
testifies. We are not concerned with the etiological enquiry into this malady
but recognise it as a reality since the authentic materials from Commission
reports and prior rulings of the High Court concurrently so establish. Broadly
speaking, this `composite' State may be dichotomised as Travancore-Cochin and
Malabar regions woven into one fabric by the States Reorganisation Act, 1956.
Gaping disparities of development cannot be wished away by political fusion
into one State and determined efforts at equalisation of human conditions,
economic and cultural, alone lend living validity to geo- political
homogeneity. Malabar being admittedly laggard in the educational field, the
State endeavoured to wipe out this weakness by starting or supporting new
colleges in this neglected segment; and one such institution was the medical
college at Calicut. Indeed, the drive to upgrade the educational status of this
backward region persuaded the State to set up the Calicut University to which
were affiliated all the colleges in that Cindrella area, including the Calicut
Medical College. An adjoining district, Trichur, was also tacked on, for
convenience, maybe.
The cynosure of attention in this litigation
is the scheme of admission to medical colleges in the State; and so we may
adjust the forensic lens to focus on the struggle for seats in the four medical
colleges in the State-all run by Government but providing for five hundred and
odd students, as against several thousands of applicants. This `musical 979
chair' situation naturally led to many qualified claimants being rejected and
litigative adventures being inaugurated on grounds of discrimination. One such
writ petition having been allowed, the State has, by special leave, come up in
appeal. The points raised in the writ petition under Art. 32 are identical.
A sensitive appreciation of the grievance
successfully ventilated by the writ petitioners in the High Court is possible
only if we unfold a fuller conspectus of the facts.
Cognizance of some essential circumstances is
necessitous as the first step. There are three Universities in the State but we
are concerned only with two-the,Kerala and the Calicut Universities-to which
the four medical colleges are affiliated, three of which are under the jurisdiction
of the first and the fourth under the latter. Broadly speaking, the latter
caters to the academic requirements of the Malabar segment plus a neighbouring
district and the former to the rest of the State.
The Malabar area has been regarded as notoriously
backward from the point of view of collegiate education so much so, the number
of colleges which provide pre-degree courses necessary by way of qualification
for entrance into the medical colleges, are relatively fewer and, on the
contrary, the remaining part of the State thanks to many factors, has been on a
higher level, with colleges more numerous and pre-degree students more
prolific. Geographic justice, a component of social justice, has to take note
of these comparative imbalances. Rightly, therefore, the State Government,
based on certain reports of Commissions, considered the two territorial
divisions as separate units and regulated seat allocations to medical colleges
in the State on an equitable basis. The social thrust of the classification,
based on geographical dissimilarities, was the core factor in fomulation of
that scheme of admissions.
This principle found favour with the High
Court in its Full Bench ruling in Rafia Rahim's(1) case. While over the years,
amelioration produced by State Plans has reduced the degree of backwardness,
the fact remains that substantial equalisation of opportunities between the two
areas is a "consummation devoutly to be wished." We agree with the
High Court that "in considering the question of the educational
backwardness of a particular class of people or a Particular tract of territory
of this State, we cannot forget that the evolution of human society and its
march from backwardness to progress must essentially be a slow and gradual
process. It is not as if, by a Government or executive fiat, a class of people
or a bit of territory has been condemned to backwardness, and with 980 the
lifting of the ban by efflux of time or otherwise, they auto matically spring
back into a progressive or forward class of people or tract. It is useful to
recall the observations made by this Court is State of Kerala v. Jacob Mathew
(1964 KL T 298).
"9. In these regions of human life and
values the clear-cut . distinctions of cause and effect merge into each other.
Social backwardness contributes to educational backwardness;
educational backwardness perpetuates social
backwardness; and both are often no more than the inevitable corollaries of the
extremes of poverty and the deadening weight of custom and tradition."(1)
If we may add, chronic social disability cannot be amenable to instant
administrative surgery and law shall not bury its head, ostrich fashion, in the
sands of fiction and assume equality where the opposite is the reality.
The rule of law runs close to the rule of
life and where societal life, as between one part of the State and another, is
the victim of die-hard disparities the constitutional mandate of equal justice
under the law responds to it pragmatically and permits classification geared to
eventual equalisation. We, therefore, agree with the High Court that current
conditions warrant the classification of the student community on the Zonal
basis- not as a legitimation of endless perpetuation but as a transient panacea
for a geo-human handicap which the State must actively strive to undo.
In Kerala, as in some other States,
reservation policies of Governments and `equal protection' pronouncements of
courts have chased each other. A happy harmony among the great
instrumentalities for accomplishment of constitutional goals by complementary
action is the desideratum for developing countries, if we may say so
respectfully.
The principle of reservation with weightage
for the geographical area of the Malabar District has our approval in
endorsement of the view or the High Court. An earlier decision of the Kerala
High Court (1964 KLT 298) gave rise to a Commission appointed to recommend
which sections of the people required special treatment under Art. 15(4) of the
Constitution, having regard to their social and educational conditions. That
Commission, inter alia accepted the educational backwardness of the Malabar
area and recommended equitable allocation of seats on that footing.
Substantially founding itself on these recommendations but modifying them in some
measure Government hummered out a formula, a basic feature of which was pooling
together the applications for admission to the four medical colleges in the
State in one consolidated list 981 and selecting students for medical courses
strictly according to the marks secured-of course, making allowance for seats
reserved for a limited percentage of students from outside and the customary
bonus of reservation of seats for Scheduled Castes, Scheduled Tribes and
backward classes.
This part of the 'selection calculus' is
beyond cavil before us, as the nation with all its social engineering boasts
and all its tumultuous bungling, is distances away from human justice through
human law. The rough and tumble of academic life, based on the Pooling System
seemed to run smooth for some years when a new attack was mounted on it in the
High Court with constitutional artillery from the inexhaustible armoury of Art.
14. A Full Bench hit the scheme fatally this time, not with the familiar but
fruitless archery of geographical discrimination but with the weaponry of
'reverse discrimination' in a different mani festation.
The strategy of attack was neatly expressed
by the learned Single Judge whose judgment on this point was endorsed by the
Full Bench. Discrimination was discovered by the Court in attributing parity to
the markes of examinees in pre-degree and degree courses of the Calicut
University with those of the candidates of the Kerala University. The Full
Bench framed the question, tell-tale fashion:
"The question is not whether one
University is superior to the other or maintains higher standards in the matter
of syllabus, examination and evaluation than the other, but whether the
operation of different Universities with varying standards of their own is
productive of inequality.'(1) The descriptive presentation of this
discriminatory facet was given by the learned single Judge in the same case:
"To compare the marks obtained by
students of two different Universities valued by different examiners on answer
papers of different patterns may not be the proper mode of determining
comparative merit. Even in the case of candidates appearing for the same
examination in the same university there may be a cause for complaint in the
matter of marks awarded to the candidates. Quite often revaluation has shown
that at least in some cases there is justification for the plea for such
revaluation. Different examiners value the answer papers and though there is a
Chief Examiner his role is quite limited. But these are inevitable and the
marginal errors may have to be ignored. By and large the comparative merits of
the candidates will be reflected in the marks they obtain in the exami- 982
nation to which all candidates are uniformly subjected to. But the same could
not be said in the case of examinations conducted by two or more Universities.
It is well-known that sometimes question papers are tough and sometimes
valuation is liberal. Quite often valuation is guided by the percentage of pass
expected in an examination. Moderation is also resorted to.
While all these may work uniformly on all the
candidates appearing for the same examination in the same University that could
not be the case with regard to the candidates appearing for the same qualifying
examination from another University writing different papers, which are valued
by a different set of examiners. When comparison is between two candidates
passing out from two Universities taking respective examinations of the
Universities the equation of candidates in matters where near-accuracy is
called for becomes difficult. May be the examinations are similar and the
valuation also is similar, but the other factors cannot be ruled out. If
admissions to courses like medicine and engineering is to be on the basis that
the best talent is to be preferred, where students from more than one
University passing the qualifying examination have to compete some method other
than comparing their marks should be devised to determine their comparative
talent."(1) The Full Bench agreed with this anathematization of equal
treatment of 'unequals' and voided the Selection Process. The Court, with
helpful realism, concluded by adding a positive guideline to the declaration of
nullification:(2) "As a result of our discussion, we are of the opinion,
that the scheme of selection for admission to the Medical Colleges on an
assessment of merit of students drawn from different Universities with no
uniformity of standards is objectionable and violative of Art. 14 of the
Constitution. We grant a declaration to the writ-petitioner to that effect. We
deny effective relief to the writ-petitioner on account of non-joinder of the
selected candidates, and the futility and ineffectiveness of upsetting the
selections and directing fresh admission at this stage.
We consider that the best scheme of selection
in the circumstances would be the method of selection of candidates by holding
a uniform Entrance Examination to secure 983 uniformity of standards, as
recommended by the Indian Medical Council-vide Exts. P5 and P8-and as endorsed
by the University authorities (vide Ex. P7). We direct the State Government to
forthwith devise a scheme of selection by holding such an Entrance Examination
and publish the same within three months from today so that the candidates
wishing to apply for selection to the Medical Colleges of this State for the
next academic year, have due notice of the scheme of selection. The object
being to secure uniformity of standards for assessment and evaluation of
students drawn from different Universities, our direction should not be
understood as unalterably and inelastically fixing the limits for Governmental
action. Methods for securing uniformity of syllabus, pattern of examination,
and mode of evaluation in the different Universities, would well be within the
province of the Government to undertake. We allow this writ appeal to the
limited extent indicated above." In the end, the writ petitioner won the
battle but lost the war, for she got an abstract declaration that her exclusion
was invalid but was denied the concrete direction to be admitted into the
college.
We are not impressed much with the surmise
which colours the reasoning of the Full Bench and the learned Single Judge that
there is such substantial difference in the pre-degree courses and evaluations
between the sister universities within the same State that the breach of Art.
14 by equal treatment of the marks unequally
secured by examinees in the two universities may be spelt out. It is trite law
that every inconsequential differentiation between two things does not
constitute the vice of discrimination, if law clubs them together ignoring
venial variances. Art.
14 is not a voodoo which visits with
invalidation every executive or legislative fusion of things or categories
where there are no pronounced inequalities. Mathematical equality is not the
touchstone of constitutionality. This Court in Triloki Nath Khosa cautioned:
"Mini-classifications based on
micro-distinctions are false to our egalitarian faith and only substantial and
straightforward classifications plainly promoting relevant goals can have
constitutional validity. To overdo classification is to undo equality." In
the same ruling there was a caveat entered by Chandrachud, J (as he then was)
against "a charter for making minute and microcosmic 984
classifications." What is more, a large latitude is allowed in this area
to the State to classify or declassify based on diverse considerations of
relevant pragmatism, and the judiciary should not "rush in" where the
executive warily treads. The core question is whether there is such substantial
differentiation between the two universities in regard to the pre-degree or
degree courses and system of examinations as too glaring to imperil the equal
protection clause. The presumption is in favour of the vires of legislative and
executive action where Art. 14 is the basis of challenge. We see no factual
disparities disclosed in the Full Bench ruling to reach the result of
substantial difference in the syllabi, in the pattern of examinations, in the
marking systems or in the choice of the examiners so as to warrant invalidation
on account of equal regard being accorded to the marks secured by the examinees
from the two universities. We cannot forget that many colleges are run by the
State or institutional managements where pre-degree or degree courses are
undertaken. The teachers move from one university jurisdiction to the other,
the teaching material is inevitably of a like nature; the subjects taught must
ordinarily be alike. The examiners are usually drawn from within the State or
neighbouring States. Even the composition of the academic bodies in the two
universities may have common members. The University Acts themselves are
substantially similar. To surmise discrimination from possibilities is alien to
the forensic process in the absence of hard facts. We are aware that there are
Universities and Universities, that gross divergences among them exist
affecting the quality of the teaching and the marking, the anomalies of grading
and the absurdity or equating the end products on the blind assumption that the
same marks mean the same excellence. But not glib surmises but solid facts
supply the sinews of discriminatory inequality or equality. Going by vague
reports, some backward universities and colleges have degenerated into
degree-dealers bringing rapid discredit to Indian academic status.
The Indian Medical Council Act, 1956 has
constituted the Medical Council of India as an expert body to control the
minimum standards of medical education and to regulate their observance.
Obviously, this high-powered Council has power to prescribe the minimum
standards of medical education. It has implicit power to supervise the
qualifications or eligibility standards for admission into medical
institutions. Thus there is an overall invigilation by the Medical Council to
prevent sub-standard entrance qualifications for medical courses.
The vagarious element in marking and
moderation of marks may be a fact of life, but too marginal to qualify for
substantial difference unless otherwise made out. Indeed, there may be
differences among the 985 colleges under the same University, among the
examiners in the same university. Such fleeting factors or ephemeral
differences cannot be the solid foundation for a substantial differentiation
which is the necessary pre-condition for quashing an executive or legislative
act as too discriminatory to satisfy the egalitarian essence of Art.
14. The functional validation of the writ
jurisdiction is an appropriate examination of the substantiality of the alleged
disparity. We do not, however, proceed finally to pronounce on this point with
reference to the two universities since nothing is available before us, or, for
that matter, was before the High Court to warrant a fair conclusion on the
issue. We are persuaded to make these observations for future guidance, so that
academic schemes may not be struck down as arbitrary or irrational save where
some sound basis has been laid.
We get back to where we left off before this
divagation into the Full Bench decision's ratio on discrimination as between
the two universities. The sole question that survives is of allocation of seats
on a university wise classification. Following upon the Full Bench decision
which struck down the pool scheme of selection, a constitutionally viable
process had to be evolved. Government, therefore, appointed a fresh expert
committee to examine and report the quo modo of admissions to medical colleges
in the light of the directives contained in the Full Bench decision. Two
solutions were seriously considered by the Committee, namely (1) a common
entrance examination such as is in vogue in many States and has the approval of
the Medical Council of India; and (2) the standardization of the syllabi
uniformly for the two universities and the elimination of different yardsticks
in regard to the setting of question papers, marking systems and the like. The
first one, though the better, was given up as productive of public and student
resistance. However wise a measure may be, its viability depends on its
acceptance by the consumers, namely, the student community and the parent
community. Agitational opposition or determined dead-locking may make it unwise
to inflict it on an unwilling constituency. Of course, by a gradual process of
enlightenment the wisdom of such a measure may dawn. What is rejected to-day
may be greeted tomorrow. The Committee jettisoned the first proposal of a
common entrance examination partly scared of its impracticability at the
moment. So it opted for the second, namely uniformity of standards, from the
formulation of syllabi upto assignment of marks at the examinations. Surely
either of the proposals is an effective answer to Art. 14.
Even so, when the Committee's recommendations
were placed before the Government it reflected carefully on the pragmatics of
implementation and reached the 986 conclusion that it would take some time to
fulfil the pre- requisites to give effect to that formula. Time runs,
university applications rush in, admissions must begin, courses must start and
administrative paralysis in decision- making is no alibi. Implementational
dilatoriness cannot stall the flow of medical education. Caught in this crisis,
caused, in part, by the court ruling, Government fabricated a quick scheme of
admission to the four medical colleges, which, again, has now been struck down
by the High Court resulting in the appeal before us.
The corner-stone of classification adopted
for medical admissions by the Government this time was universitywise
allocation. By itself, this approach had constitutional sanction, having regard
to the ratio in Chanchala's case.
The ratio in Chanchala concludes the dispute
in this case. The discriminatory vice, if university-wise classification and
consequential allocation of seats were resorded to, was pressed but repelled.
Shelat, J. speaking for the Court, formulated the contention thus:
"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 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." The fundamental educational realities and
resultant resolution of the legal imbroglio are instructively presented in Chanchala's
case, which 987 have special relevance to our case because the social facts,
constitutional confrontations and administrative answers in the Kerala and
Karnataka litigations are similar. Shelat J.
observed:
"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 feasible 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
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..... 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 988
technical training is not uncommon..... 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 bass 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] In our view, the rules lay
down a valid classification. Candidates passing through the qualifying
examinations 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. In our opinion, the rules cannot justly be attacked on the ground of
hostile discrimination or as being otherwise in breach of Art. 14:
We do not mean to lay down, as an inflexible
dogma of universal application, that under utterly different social and
educational environs university-based grouping of candidates for specialised
courses will, willy-nilly, be valid. But the basic identity of pertinent
circumstances bearing on the university-centred descrimen in Chanchala and here
constitutionalize the scheme of selection adopted by Government grouping all
eligibles from colleges affiliated to each University as separate units. The
High Court's perspective in this regard is impeccable.
It is an interesting sidelight that in
Chanchala as much as 20% of the total seats were thrown open to 'outsiders'
i.e. 'those who have passed the equivalent examination held by any other
university not only in the State but also elsewhere in India. The underlying
unity of syllabus and broad agreement on evaluation are assumed in this pool
system, confined to 20% but open to several universities.
Having held in the earlier Full Bench case
that university-wise categorisation for seats allocation was good the High
Court, in the impugned judgment, still struck down the new scheme as
discriminatory. The vice was traced to a certain feature which went beyond mere
universitywise allocation and made further modifications governed by the proportion
of the number of students presented by the two universities for the pre-degree
and B. Sc. examinations.
'Ay, there's the rub'.
The Committee's long range proposal of
uniformity between the two universities was unexceptionable and, if adopted,
would end apprehensions of injustice stemming from dissimilarities flowing from
divergent syllabi and examination methodology. Indeed Government has accepted
it as the long-term solution and rightly. The relevant G.O. dated July 14,
1978, sums up the Committee's unification solution thus :
"As a long teirm solution Government may
move the Universities of Kerala and Calicut to unify the curriculum and courses
of study for pre-degree course and form Inter University Board for the conduct
of examination. When such a scheme is established pre- degree will be the only
qualifying examination for selection to all courses in the medical colleges.
The Committee has pointed out that unification of the syllabus, course of study
and examination in the four disciplines of B.Sc., viz., Physics, Chemistry,
Zoology and Botany would be impossible and thus the reservation now given to
graduate candidates for selection to Medical and dental colleges will have to
be abolished." And the decision of Government is in these terms:
"Government.......have accepted the
recommendation of the committee to have unified curriculum and course of study
and common board for conduct of examinations for the Kerala and Calicut
Universities. But Government consider that unification of syllabus and method
of examination should be made also at degree level in respect of the 4
disciplines of Physics Chemistry, Zoology and Botany and that the reservation
now given to the graduates for admission to the medical and dental colleges
should be continued. The Universities concerned are being requested to take
further action in the matter." But the modus operandi for unification of
syllabi and what not are incapable of instant execution by unilateral
declaration, since it is the business of the Universities.
And Universities are self-consciously autonomous
and often politicised, with the result that the writ of Government may not run
there. Moreover, administrative slow-motion is the genius of governmental and
university processes.
Universities, with plural bodies, many voices
and contradictory cerebrations, may meet and debate, appoint sub-committees and
discuss their reports, await reactions 990 of other organs and hold joint
meetings to consider academic issues in all their dimensions and act generally
only after leisurely reflect on. Academies cannot be hustled and often hasten
slowly. Meanwhile, the year rolls on, students stagnate and medical education
grinds to a halt.
These painful realities apparently induced
the Government to fabricate in its secretariat foundry a transitory strategy
for the current year.
This short-run project adopted each
University as a unit which, as we have earlier explained, was good so far as it
went. But a dubious rider was added which invited the judicial Waterloo. That
is the bone of contention and so we excerpt the relevant portion:
"After considering the proposal in all
its aspects Government have decided that the seats available for MBBS course
after deducting the seats for mandatory admission may be distributed for the
students of the two Universities in the ratio of the candidates registered for
the pre-degree and B.Sc. course in the two Universities, taking the average of
the number of candidates registered for the pre-degree and B.Sc.
degree courses with eligibility for admission
to Medical Colleges for the last three years as the basis." This operated
as a cut back on the total 'Calicut' seats as wholly available for the Calicut
University students and, indeed, as urged by counsel for the respondent, subtly
subverted the criterion of 'Malabar' backwardness.
The Calicut Medical College and the Calicut
University were created as the purpose-oriented mechanisms for progressive
elimination of educational backwardness in that territory. This objective would
be fulfilled if the entire number of seats of the Calicut Medical College were
exclusively made the entitlement for eligible students from colleges affiliated
to that University. A further slice knifed out of the cake would spell reversal
of policy.
We agree with the High Court that the
injection of the university wise student-strength is drawing the red-herring
across the trail-an irrelevance that invalidates the scheme.
We cannot see the nexus between the
registered student- strength and the seats to be allotted. The fewer the
colleges the fewer the pre-degree or degree students. And so, the linkage of
the division of seats with the registered student-strength would make an
irrational inroad into the university-wise allocation. Such a formula would be
a punishment for backwardness, not a promotion of their advancement. We cannot
uphold the discriminatory paring down based on unreason.
991 Once this premise is reached the calculus
is non- controversial.
The three medical colleges affiliated to the
Kerala University have a total strength of 345 students and the only college
affilated to the Calicut University has a student strength of 180. On these
basic figures, the arithmatic worked out on the principles of deduction is
beyond controversy. 42 students form the reserved quota and have to be
apportioned between the two universities in the ratio of their student
strength. Making available of seats for candidates from other universities is
also common ground. Both sides agree that the net number of seats available to
be filled up, if we proceed solely on the principle of university-wise
allocation, will be 166 for the Calicut University students and 317 for the
Kerala University students. The admissions, even on these agreed figures, will
be subject to the die-hard rule of Communal reservation. The further division of
seats in the ratio of 60: 40 as between the graduates and pre-degree candidates
also has to be maintined. No question of complicating the numbers by any
further injection of the population ratio between Malabar and Travancore-Cochin
arises because the new formula takes care of the backwardness of Malabar and
there cannot be double benefits.
Decoding the rules in simplex form, what we
get in arithmatical terms is that the Calicut University students who have now
been alloted under the Government formula 136 seats will be eintitled to an
extra 30 seats.
If we rigidly direct that these additional
seats be assigned to the students emerging from the colleges under the Calicut
University an equal number may have to be expelled from the students already
admitted from out of the Kerala University quota. This consequence becomes
ccmpulsive since the total strength sanctioned for the four medical colleges
fixed by the two Universities and approved by the Medical Council of India is
525 seats.
Here comes the play of processual realism in
moulding the relief in the given milieu. The rule of law should not petrify
life or be inflexibly mulish. It is tempered by experience, mellowed by
principled compromise, informed by the anxiety to avoid injustice and softens
the blow within the marginal limits of legality. That is the karuna of the law.
Nor is law unimaginative, especially in the
writ jurisdiction where responsible justice is the goal. The court cannot adopt
a rigid attitude of negativity and sit back after striking down the scheme of
Government, leaving it to the helpless Government caught in a crisis to make-do
as best as it may, or throwing the situation open to agitational chaos to find
a 992 solution by demonstrations in the streets and worse. We are, therefore,
unable to stop with merely declaring that the scheme of admission accepted by
Government is ultra vires and granting the relief to the petitioner of
admission to the medical college. The need for controlling its repercussions
calls for judicial response. After all, law is not a brooding omnipresence in
the sky but an operational art in society.
The High Court's ultimate direction is:
"We allow this writ petition and quash Exh. P2 G.O. to the extent to which
it accepts alternative proposal of the committee referred to in Exh. P.1".
The Court also observes: "We think it will be unfair in the circumstances
to deny effective relief to the writ petitioner......" The relief claimed
was admission to the medical college.
The upshot of the judgment, in terms of student
impact, government policy, college admissions and potential for agitation, may
be envisioned for a while. We may also take note of the gregarious trend of one
writ petition being followed by many when the grievance is common and the first
case is in essence a test case and class action. What is granted to the
petitioner has to be granted to others who follow her. In terms of numbers
several candidates may have to be admitted into the medical colleges. More than
that is the chaotic consequence of the pro tempore project of the Government
being struck down with no alternative methodology of selection. Governments
have no magic remedies to tide over sudden crisis. Their processes are
notoriously slow and the temper of the student community is notoriously
inflammable. Thus the negative stroke of voiding the G.O. and granting relief
to the petitioner is to throw out a number of students already undergoing their
course and to incite unwittingly student unrest of magnitude, apart from
leaving the academic algebra for admissions in a state of vacuum. One thing is
certain. If the syndrome of campus chaos is to be obviated, the court should
come to the assistance of the Kerala University students already admitted and
undergoing their medical course who might otherwise have to be jettisoned. We,
therefore, do not think it right to force into the medical colleges any
students who may be qualified for admission by virtue of our order at the
expense of another who has already been admitted and is undergoing the medical
course. This means that 30 students from the colleges affiliated to the Calicut
University will have to be provided for ab extra. But how to find accommodation
for 30 more students ? The Universities concerned have the power to increase
the strength ad hoc when gripped by a crisis such as has occurred here. The
Medical Council of India has an overall control in this field, being the statutory
body created under the Indian Medical Council Act, 1956. Thus, the concurrence
of the Calicut and the Kerala Universities and the Medical Council of India
becomes necessary for working out effective reliefs in terms of adding to the
strength on a temporary footing, with a sense of equity and anxiety to do
justice to the existing entrants.
Unfortunately, neither the Universities
concerned nor the students affected are parties. The presence of the Medical
Council of India also has to be secured. Confronted by this situation, we
directed, as a measure of emergency issuance of notice to the two Universities
and made them party to the record. A similar step was taken in the case of the
Medical Council of India. At short notice, all the three parties entered
appearance. Although Shri A. S. Nambiar, appearing for the University,
expressed inability to consent to any course of addition of strength, he agreed
that the concerned academic bodies were likely to meet shortly and the Universities
themselves would abide by any directions this Court issued in the interests of
Justice. The learned Advocate General had earlier represented that the
Universities were likely to agree to a temporary addition of strength, provided
the Medical Council of India would also approve of the course. We need hardly
say that the writ of this Court binds the parties on record and all the three
bodies are before us and must abide by the directions we issue necessitated by
the exigency of the situation and the need to do justice.
After all, the Court system belongs to the
people and must promote constructive justice; and all institutions, including
the Governments and Universities, likewise belong, to the people. This
commitment is the whet stone for doing justice in the wider context of social
good. The Universities, as we gather from counsel representing all the parties,
may not find it difficult to accommodate 30 students more, apportioned among
the four medical colleges of the State. This addition is compelled by the
critical condition set out above. This need will not survive this academic year
and, in that sense, no long term trauma for academic standards will be
inflicted by each of the colleges accommodating a few more students for their
courses this year. After all, not much time has passed since the teaching
session began. Compared to their existing strength, the additions are
negligible. The Medical Council of India, through the learned Additional
Solicitor General, has expressed that it has no objection to this proposal for
a miniscule addition confined to this academic year. We see no ground for
either University to plead inability to help the cause of Justice. The
insistence on standards, measured by marks, is not being relaxed, so much so
the quality of the admission of additional students does not suffer. A marginal
strain in the 994 matter of teaching and perhaps extra burden in regard to the
practicals may have to be endured. We are, therefore sure that the
Universities, the colleges concerned, the teaching community and the alumni
themselves will appreciate the goal and cooperate in the success of the
direction we make.
Had we left the Judgment of the High Court in
the conventional form of merely quashing the formula of admission the remedy
would have aggravated the malady- confusion, agitation, paralysis. The root of
the grievance and the fruit of the writ are not individual but collective and
while the 'adversary system' makes the Judge a mere umpire, traditionally
speaking, the community orientation of the judicial function, so desirable in
the Third World remedial jurisprudence, transforms the court's power into
affirmative structuring of redress so as to make it personally meaningful and
socially relevant. Frustration of invalidity is part of the judicial duty;
fulfilment of legality is complementary. This principle of affirmative action
is within our jurisdiction under Art. 136 and Art. 32 and we think the present
cases deserve its exercise We direct the State Government to admit 30 more willing
students who are qualified under the rules and who are students from the
colleges affiliated to the Calicut University-in order of the marks secured.
They will be distributed by the Selection Committee among the four medical
colleges of Government in an equitable way and their decision will be final.
The Kerala and the Calicut Universities will be bound to expand the strength of
the medical colleges concerned for this year in obedience to this direction of
the Court and the respective bodies under the Universities will act
accordingly.
The selection of these 30 students will not
be confined to those who have moved this Court or the High Court by way of writ
proceedings or appeal. The measure is academic excellence, not litigative
persistence. It will be thrown open to the first 30, strictly according to
merit measured by marks secured. The apportionment as between graduates and
pre-degree students and the application of the communal reservation will apply
to these 30 to be selected. The Selection Committee will make its decision on
or before the 31st January 1979. The Universities concerned will convey their
approval to the Government for the necessary addition to the student strength
in obedience to the direction of this Court on or before the 27th January 1979.
We direct the State Government for the coming
academic year 1979-80, to allot 166 seats for the students from the colleges
affiliated 995 to the Calicut University and 317 seats to the students from the
colleges affiliated to the Kerala University, the formula regarding every other
aspect being as indicated in this Judgment such as for the mandatory
admissions, the apportionment between pre-degree students and the degree
holders and other reservations.
Another imperative step we cast on the two
Universities, which are parties before us, and are, therefore, bound by this
Order deserves to be clearly expressed. Having regard to the utter confusion in
medical studies that may be produced by keeping the unification of syllabi and
methodology of examinations in a flux we think it absolutely essential to fix a
time target for the University bodies to act. Government will issue necessary
directions to its representatives on these bodies to accelerate the pace. We
expect both the Universities to implement the proposal made by the Committee
and accepted by the Government regardnig the uniform curricula and common
examination system and allied matters in such manner that there will be no
inequality as between students emerging from one University and the other within
the State. This process shall be completed on or before 31st May 1979.
We are aware that these various directions
and orders call for high pressure activisation. Perhaps, we may emphasise the
need for guarding against the slow march of bureaucratic movement embodied in
Lord Curzon's lament respecting the administration of his time, a state of
affairs wholly opposed to the dynamic fulfillment of the imperatives cast by
the Constitution upon the nation and its institutions. Said Lord Curzon in a dispatch
to the Secretary of State:
"Your dispatch of August 5th arrived. It
goes to Foreign Department. Thereupon Clerk No 1 paraphrases and comments upon
it over 41 folio pages of print of his own composition, dealing solely with the
Khyber suggestions in it. Then comes Clerk No. 2 with 31 more pages upon Clerk
No. 1. Then we get to the region of Assistant Secretaries, Deputy Secretaries
and Secretaries. All these gentlemen state their werthless views at equal
length. Finally we get to the top of the scale and we find the Viceroy and
Military Member, with a proper regard for their dignity, expanding themselves
over a proportionate space of print. Then these papers wander about from
Department to Department and amid the various Members of Council. I am grappling
with this vile system in my own department, but it has seated itself like the
996 Old Man of the Sea upon the shoulders of the Indian Government and every
man accepts, while deploring the burden."(1) Hopefully, we part with this
case with the thought that there will be no occasion for any party to move for
extension of time or to prove that the curse Lord Curzon spelt out still haunts
the wheels of administration. The appeal is allowed; so also the writ
petition-in the manner and to the extent we have directed. The parties will
bear their costs. The decisional guidelines herein given will, we dare say, so
help dispose of the many Writ Petitions pending in the High Court. The journey
to the Supreme Court is not always necessitous for final justice.
ORDER While there is agreement that thirty
seats more have to be added as has been indicated in the judgment making the
total number of seats allocable to the students of the Calicut University to
166, there is some dispute regarding the number of seats available for the
students belonging to the Kerala University. We have mentioned in the judgment
that it is 317. It is open to the State Government or to the concerned
Universities to bring it to the notice of the court in case there is any
clarification necessary.
N. V. K. Appeal & Petition allowed.
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