Arti Sapru Vs. State of Jammu and
Kashmir & Ors [1981] INSC 49 (27 February 1981)
PATHAK, R.S.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION: 1981 AIR 1009 1981 SCR (3) 34 1981
SCC (2) 484 1981 SCALE (1)437
CITATOR INFO :
R 1981 SC2045 (10) R 1983 SC 580 (9) R 1984
SC1534 (9)
ACT:
Admission to medical college-Government
Notification No. 41-G.R. of 1980 dated 24th September, 1980 purporting to
identify certain villages as socially and educationally backward for applying
the principle of "rectification of imbalance in different parts of the
State"-Whether the classification is wholly arbitrary and without any
foundation to sustain it and consequently the criteria adopted in granting
admission to the M.B.B.S. course is discriminatory, unreasonable and void-When
viva voce test lasts between two to four minutes, whether allotment of 30% of
total marks is patently unreasonable and arbitrary- Whether accepting
applications beyond the time prescribed on the ground that qualifying
examination in which the applicant appeared was held late and the results were
announced after the date prescribed for submitting the applications, bad in
law.
Regulations framed by the Indian Medical
Council under section 33 read with section 19A of the Indian Medical Council
Act, 1956, whether holding viva voce examination and assigning 30% of the total
marks in it is in violation of Article 31 of the Constitution-Whether the
presence of a Government official on the Selection Committee in the viva voce
test is obnoxious to law.
HEADNOTE:
Selection of candidates to be admitted to
M.B.B.S.
course in the Medical College of the State of
Jammu & Kashmir was made by a Selection Committee on the basis of (a) merit
in qualifying examination (35 marks) (b) an objective test (35 marks) and (c) a
viva voce test (30 marks). The seats were distributed besides the examination
base was determined by a distribution of the seats into three distinct
divisions namely, (i) 60% on the basis of open merit; (ii) 20% on the basis of
reservation for scheduled castes and other reserved categories, one of which
was broadly described as "socially and educationally backward
classes" which included candidates from (a) areas adjoining actual line of
control and (b) areas known as "bad pockets", including Ladhak and
(iii) 20% were reserved as seats to be filled "on the basis of inter se
merit to ensure rectification of imbalance in the admission for various parts
of the State, if any, so as to give equitable and uniform treatment to those
parts".
In Nishi Maghu v. State of Jammu and Kashmir,
[1980] 3 S.C.R. 1253, the Supreme Court held that the selections made under the
third category were invalid, inasmuch as the classification made for
rectification of regional imbalance without identifying the areas suffering
from imbalance was vague.
The State Government, therefore, published
Notification No. 41 G.R. of 1980 dated 24th September, 1980 purporting to
identify certain villages as socially and educationally backward for applying
the principle of "rectification of imbalance in different parts of the
States". and reduced the distribution of seats in the Medical Colleges of
the State under this category from 18 to 17% under this category. This order is
challenged by the petitioner, an unsuccessful candidate in the selection made
for admission to M.B.B.S.
course for the year 1980-81.
35 Allowing the petitions, the Court
HELD: 1. The classification attempted by the
State Government by its order dated 24th September, 1980 suffers from the vice
of arbitrariness and is, therefore, invalid.
There was no intelligible data before the
Court for sustaining the classification. No doubt the State Government had
acted in its own wisdom, but the material to which that wisdom was applied was
not disclosed at all. The fact by itself that some hundreds of villages had
been brought within the classification is of no assistance whatever. That a comprehensive
understanding of regional imbalances from the Anand Committee report and the
Sikri Commission report had not been possible yet affords no justification for
an arbitrary classification. The State failed to bring the case within Article
15(4) of the Constitution. [39 G; 40 D] State of U.P. v. Pradip Tandon, [1975]
2 S.C.R. 761 applied.
2: 1. There is need to revise the marks ratio
for the viva voce test because of the very real risk future selections would
face on this score. The Government would also do well to ensure that Selection
Committees take care to devote sufficient time to the oral interview of
individual candidates having regard to the several relevant considerations
which must enter into their judgment respecting each candidate.[41 D & G]
A. Peeriakaruppan, etc. v. State of Tamil Nadu and Ors., [1971] 2 S.C.R. 430;
Nishi Maghu v. State of Jammu and Kashmir, [1980] 3 S.C.R. 1253; Ajay Hasia v.
Khalid Mujib, [1981] 2 S.C.R. 79, referred to.
2: 2. The selection cannot be said to be
vitiated on the ground that one of the members, Shri Kundal, left after some
time and therefore the composition of the Interview Committee varied from time
to time, since three out of four members remained present throughout the
proceedings and a proportionately small number only of the candidates was
interviewed when Shri Kundal was present. [42 D-E] 2: 3. The appointment of a
Government official as a member of the Selection Committee is not obnoxious to
the law. There is no principle of law disqualifying a Government official from
participating on the Interview Committee merely because he is a Government
official. It cannot be said that a Government official cannot be a person of
high integrity, calibre and qualifications. The constitution of a Committee
lies in the wisdom of the State Government and it is expected men suitably
qualified in every respect will be appointed to discharge the functions of the
Committee. So long as the State Government acts bona fide it cannot be said
that the presence of a Government official on the Selection Committee vitiates
its constitution. [44H, 45 A-B] 2: 4. Selection of a number of candidates, in
the present case, cannot be said to have been made because of favouritism on
account of relationship or friendship with members of the Selection Committee
or because they were related to important and influential persons in the State.
Besides being sketchy and extremely vague,
such allegations have been made for the first time in the rejoinder affidavit
and there has been no reasonable opportunity to the respondents to reply to
them.[42 F] 36
3. The grant of admission to respondents Nos.
7 to 12, in the instant case, is in order, inasmuch as the relevant qualifying
examination was held late and the announcement of the results was delayed. The
State Government correctly permitted the candidature of these applicants to be
considered for inclusion in a common list drawn up to cover candidates for
admission to either of the Government Medical Colleges, at Srinagar and at
Jammu. Even according to petitioner those respondents have an excellent record
and if they had applied in time for admission in the Government College at
Srinagar they would certainly have been admitted on the basis of their merit.
[42G-H]
4. A competitive entrance examination is
permissible in law in addition to the qualifying examination. In regard to the
sufficiency of the objective test, the absence of a prescribed formal
curriculum does not vitiate the objective test. [44 E]
5. A reading of the regulations framed by the
Indian Medical Council under section 33 read with section 19 A of the Indian
Medical Council Act, 1956 makes it clear that the reservation permissible need
not necessarily be confined to Scheduled castes and scheduled tribes. [44 E]
ORIGINAL JURISDICTION: Writ Petition Nos.
5600, 5601, 5615, 5689-5697 and 6283-6307/1980.
(Under Article 32 of the Constitution) Soli
J. Sorabjee, O.N. Tikku, E.C. Aggarwala, M.L. Bhatt, R. Satish, and V.K.
Pandita for the Petitioners in W.Ps. 5600-01,5615 & 5689-97/80.
M. K. Ramamurthy, Miss R. Vaigai, Joginder
Singh and J. Ramamurty for the Petitioners in WPs. 6283-6307/80.
S.N. Kacker and Altaf Ahmed for the
Respondents in all the Writ Petitions.
The Judgment of the Court was delivered by
PATHAK J. The petitioner challenges the admission of a number of candidates to
the M.B.B.S. course in the Government Medical College Srinagar for the session
1980-81.
The petitioner, who had also applied for admission,
was denied it. She contends that the criteria adopted in granting admission, is
discriminatory, unreasonable and void.
The Principal, Government Medical College,
Srinagar invited applications by 3rd April, 1980 for admission to the M.B.B.S.
course for the session 1980-81, and the notice specified the qualifying
examinations of the Board of Secondary Education, Kashmir, or any other
equivalent Board or University which constituted the basis of eligibility.
The manner and procedure governing the eligibility
for admission had been set forth in a Government order 37 of 3rd April, 1978,
which laid down that a Selection Committee constituted by the Government would
determine the inter se merit of eligible candidates on the basis of an
interview for judging their (a) physical fitness, (b) personality, (c)
aptitude, (d) general knowledge and (e) general intelligence. This Government
order was modified by a subsequent Government order dated 23rd June, 1980 and
in the result eligible candidates were now required to appear not only in the
viva voce examination but also in an objective test. These two tests along with
merit in the qualifying examination of the Board or University constituted the
three elements which together combined to form a basis for Selection. The
qualifying examination carried 35 marks, the objective test was allotted 35
marks and the viva voce examination was assigned 30 marks.
Besides the examination base constituted by
the aforesaid three criteria, the selection was also determined by a distribution
of the seats into three distinct divisions. Of the total number of seats 50%
were earmarked for being filled on the basis of open merit, 25% were reserved
for candidates from Scheduled Castes and other reserved categories, one of
which was broadly described as "socially and educationally backward
classes" and included candidates from (a) areas adjoining actual line of
control, and (b) area known as bad pockets including Ladhak. After selection
had been made as above the remaining 25% of the seats were to be filled
"on the basis of inter se merit to ensure rectification of imbalance in
the admission for the State, if any, so as to give equitable and uniform
treatment to those parts". It was also recited that in case there was no "visible
imbalance", the seats earmarked under that head were to be distributed
among further "open merit" candidates. On 27th June, 1974, the
percentage of seats reserved for the different categories was refixed, so that
60% of the seats were now earmarked for admission on the basis of "open
merit", 20% for distribution among candidates from the Scheduled Castes
and other reserved categories including socially and educationally backward
classes, and the remaining 20% of the seats were earmarked for "ensuring
rectification of imbalances". Still another order dated 21st April, 1976
reduced the reservation for removing regional imbalances from 20% to 18%.
The selection of candidates for admission to
the Government Medical College, Jammu for the academic year 1979-80 was challenged
in this Court in Nishi Maghu v. State of Jammu and Kashmir(1) 38 and the Court
held that "the classification made for rectification of regional imbalance
without identifying the areas suffering from imbalance was vague and the
selections made under that head were accordingly invalid". The Court
directed that the seats reserved under that head should be added to the quota
of seats earmarked for selection on the basis of merit and filled accordingly.
Thereafter, in an attempt to remove the
deficiency pointed out by this Court in Nishi Maghu (supra), the State
Government published Notification No. 41-GR of 1980 dated 24th September, 1980
purporting to identify certain villages as socially and educationally backward
for applying the principle of "rectification of imbalance in different
parts of the State". A long schedule (covering over 60 pages of the record
before us) was annexed and listed some hundreds of villages.
About the same time, a Government order was
issued fixing 17% of the seats in the M.B.B.S course of the medical colleges of
the State as the admission quota for the purpose of "rectification of
imbalances." From 14th to 17th July, 1980, as many as 660 candidates were
interviewed by a Committee at Srinagar by way of viva voce examination. On 21st
July, 1980 the State Government issued a directive that a total list of 125
candidates be prepared against all the seats of the two Government Medical
Colleges, at Srinagar and at Jammu. A Selection List was finalised taking into
account the reservations made for various categories and classes by the
different Government orders, and was published on 29th September, 1980, and the
names of 75 candidates were announced for admission to the M.B.B.S. course to
the Government Medical College, Srinagar.
The principal contention of Mr. Soli Sorabjee
appearing for the petitioner in Writ Petition No. 5600 of 1980, is that notwith
standing this brave attempt to meet the constitutional requirement indicated in
Nishi Maghu (supra) the State Government has failed in its purpose. It is urged
that there was no material before the State Government affording a pertinent
basis for classifying these villages.
It is pointed out that almost whole tehsils
of different districts have been identified as socially and educationally
backward, `bad pockets' and areas belonging to the line of actual control have
been included and in the result with more than 95 per cent of the villages
classified as socially and educationally backward, the inference must be that
almost all 39 of Kashmir Division calls for a reservation quota. It is asserted
that a portion of Srinagar city, which includes Sangin Darwaza and Bhagwanpure,
has also been identified as socially and educationally backward. To that class
have also been added towns where Notified Area Committees exist. The submission
is that the classification is wholly arbitrary and without any foundation to
sustain it. The mere circumstance, it is urged, that the classification is
defined on the basis of villages without anything more demonstrates its
unconstitutional character.
The case of the State Government is that the
classification fully satisfies the criterion "social and educational
backwardness". In proof of the assertion it is pointed out that the
present selection shows that candidates from areas not included in this
classified category have taken 66 seats out of 75 on the basis of open merit.
It is conceded that a large number of villages have been included in the
classification, but it is pointed out that the greater bulk of the population
resides in the two cities of Srinagar and Jammu alone and would be equivalent
to the population of hundreds of villages taken together. The classification is
supported by the consideration that in the nature of things the inhabitants of
the rural areas are socially and educationally backward. It is urged that
merely because some of the villages are administered by Notified Area
Committees does not remove the stigma of backwardness.
It is admitted that two reports, popularly
described as the Anand Committee report and the Sikri Commission report, are
under consideration by the Government but, it is said, as a comprehensive
appreciation of the situation disclosed by the two reports of all the aspects
of social and educational backwardness in the State has not been made yet, the
Government has proceeded "in its own wisdom" to identify the areas
suffering from regional imbalance.
We are of opinion that the classification
attempted by the State Government by its order dated 24th September, 1980
suffers from the vice of arbitrariness and must be declared invalid. There is
no intelligible data before us for sustaining the classification. No doubt the
State Government has acted in its own wisdom, but the material to which that
wisdom was applied has not been disclosed at all. The fact by itself that some
hundreds of villages have been brought within the classification is of no
assistance whatever.
Over six years ago, this Court in State of
U.P. v. Pradip Tandon(1) ruled that in the matter of admission of students to
medical colleges 40 a reservation in favour of candidates on the ground that
they hailed from rural areas was unconstitutional. The Court repelled the
argument that it was necessary to reserve seats for candidates from rural areas
because they were handicapped in the matter of education. It also rejected the
plea that as the number of marks obtained by candidates from rural areas in the
qualifying test were much lower than the marks obtained by the general
candidates that was an indication of the former's educational backwardness.
Ray, C.J., speaking for the Court, observed:
"The reservation for rural areas cannot
be sustained on the ground that the rural areas represent socially and
educationally backward classes of citizens. This reservation appears to be made
for the majority population of the State 80 per cent of the population of the
State cannot be a homogeneous class.
Poverty in rural areas cannot be the basis of
classification to support reservation for rural areas." The criterion
adopted by the State Government cannot be accepted unless supported by other
relevant considerations.
That a comprehensive understanding of
regional imbalances from the Anand Committee report and the Sikri Commission
report has not been possible yet affords no justification for an arbitrary
classification. We are not satisfied that the State Government has succeeded in
bringing the case within Article 15 (4) of the Constitution. The material
before us is woefully inadequate and fails to sufficiently support the validity
of the classification. We are of opinion that the order of the State Government
dated 24th September, 1980 must be declared invalid.
The next contention on behalf of the
petitioner is that the allocation to the viva voce test of 30 per cent of the
total marks is patently unreasonable and arbitrary. Our attention has been
drawn to the observations of this Court in Ajay Hasia v. Khalid Mujib(1) where
an allocation of more than 15 per cent of the total marks for the oral
interview was regarded as arbitrary and unreasonable and liable to be struck
down as constitutionally invalid. It seems to us that the State Government
would have done well to apply its mind seriously to the evaluation ratio
between the three criteria adopted for admission. When the Government order of
23rd June, 1980 dividing the total marks between the three criteria was issued,
there 41 was ample evidence of the principle and practice adopted by examining
bodies of high repute and status in the country.
The marks ratio adopted by the Union Public
Service Commission provided wise example. Besides, almost 10 years before this
Court in A. Peeriakaruppan, etc. v. State of Tamil Nadu & Ors. had
expressed its disapproval of the ear- marking of 75 marks for the interview
test out of 275 marks.
And before the selection process was taken in
the present case this Court had already observed in Nishi Maghu (supra) that
reserving 50 marks for the interview out of a total of 150 marks appeared
excessive, especially when the time spent was not more than 4 minutes on each
candidate. This precisely is what happened here, because on the case of the
State Government itself the average time devoted to the oral interview of each
candidate was 4 minutes. However, we are reluctant to interfere on this ground
because a clear pronouncement that an allocation of more than 15% of the total
marks to the viva voce examination would result in constitutional invalidity
has been made only recently, in Ajay Hasia (supra), by this Court and that was
after the selection process in the present case had already been taken. We
would prefer to impress on the State Government that there is need to revise
the marks ratio because of the very real risk future selections will face on
this score.
The next contention for the petitioner is
that having regard to the number of candidates interviewed and the time applied
to conducting the interview no more than two minutes or so could have been
given on the average to the oral interview of each candidate, a period
demonstrating, in the submission of learned counsel, that the selection process
was conducted in a perfunctory manner and there was no real application of the
mind to the selection of candidates. The State Government maintains that the
time spent was four minutes per candidate. We have given the matter our anxious
consideration, and we are unable to hold that there is adequate material for
striking down the selection on this ground. But here again the State Government
would do well to note the observations made by this Court in Ajay Hasia (supra)
in this matter, and to ensure that Selection Committees take care to devote
sufficient time to the oral interview of individual candidates having regard to
the several relevant considerations which must enter into their judgment respecting
each candidate.
42 We are also told by the petitioner that
the composition of the Interview Committee varied from time to time during the
interviews. Therefore, it is said, the selection stands vitiated. It is alleged
that while one member, Shri N.S. Pathania, Principal, Medical College, Jammu
joined the Committee some time after the interviews had begun, another member,
Shri B.R. Kundal, Deputy Commissioner, Udhampur was present during a part of
the proceedings only and left thereafter. In regard to Shri N.S. Pathania, it
is not possible to say that his joining with a slight delay has materially
affected the validity of the proceedings. And as regards Shri Kundal, it
appears that he was present on the 14th July, 1980 and according to the
petitioner, left on the morning of the next day. It will be noticed that all
the members of the Committee except Shri Kundal were persons closely associated
with medical education. Shri B.R. Kundal was Deputy Commissioner of Udhampur.
We also do not know what was the mode of functioning employed by the Committee,
whether it was such as to invalidate the proceedings if one of the members ex
necessitas, was unable to participate throughout in them. The respondents
maintain that at least three out of four members remained present throughout
the proceedings. And according to the petitioner, a proportionately small
number only of the candidates were interviewed when Shri Kundal was present. In
all the circumstances, we find it difficult to say that Shri Kundal's absence
from the Committee vitiated its proceedings.
Shri Soli Sorabjee then contends that a
number of candidates were selected for admission because of favouritism on
account of relationship or friendship with members of the Selection Committee
or because they were related to important and influential persons in the State.
The allegations have for the most part been
made for the first time in the rejoinder affidavit and there has been no
reasonable opportunity to the respondents to reply to them.
Such allegations on this point as are
contained in the writ petition are extremely vague and sketchy, and can form no
basis for a finding in favour of the petitioner.
There is one more contention, and that is
that the respondents Nos. 7 to 12 did not apply for admission to the Principal,
Government Medical College, Srinagar, and even if they are found to have done
so their applications must have been submitted beyond the time prescribed as
the qualifying examination in which they appeared was held late and the results
were announced after the date prescribed for submitting the applications at
Srinagar had expired. It 43 appears from the record before us that inasmuch as
the relevant examination was held late and the announcement of the results was
delayed the State Government permitted the candidature of these applicants to
be considered for inclusion in a common list drawn up to cover candidates for
admission to either of the Government Medical Colleges, at Srinagar and at
Jammu. Besides, it is conceded by the petitioner that those respondents have an
excellent record and if they had applied in time for admission to the
Government Medical College, Srinagar, they would certainly have been admitted
on the basis of their merit. In the circumstances, we do not propose to interfere
with the grant of admission to those respondents.
Accordingly, the only relief which, in our
judgment, should be awarded to the petitioner is the quashing of admissions
granted in the quota reserved for rectifying regional imbalances. In
consequence, those seats must be filled up on the basis of open merit.
Writ Petitions Nos. 5601 of 1980, 5615 and
5689 to 5697 of 1980, which proceed on the same lines as Writ Petition No. 5600
of 1980, must be disposed of in like manner.
The remaining cases, Writ Petitions Nos. 6283
to 6307 of 1980, fall in a separate category. The petitioners here challenge
the selection of candidates for admission to the M.B.B.S. course in the
Government Medical College, Jammu for the year 1980-81; and complain of the
denial of admission to them. The facts on which these writ petitions have been
brought and the grounds on which they claim relief are substantially the same
as in Writ Petition No. 5600 of 1980.
Indeed, Shri M.K. Ramamurthi, learned counsel
for the petitioners, states at the outset that he adopts the submissions urged
in that case against the validity of the admissions granted for the purpose of
rectification of regional imbalances, in regard to the invalidity alleged by
the assigning of 30% marks to the viva voce examination and also in regard to
the legal effect on the interview proceedings of the absence of some members of
the Selection Committee during part of the proceedings. These points have been
considered and disposed of by us in that writ petition, and those findings are
of equal validity in these writ petitions also.
Besides this, learned counsel for the
petitioners raises other contentions. He urges that the selections made are not
in accordance with the Regulations framed by the Indian Medical Council under s.
33 read with s. 19A, Indian Medical Council Act, 1956 and therefore violate the
fundamental right of the petitioner guaranteed 44 under Article 15 of the
Constitution. It is contended that the Regulations are law and are enforceable
in a court, and that if they are to prevail the only reservation permissible is
that in favour of Scheduled Castes and Scheduled Tribes.
According to the Regulations, it is asserted,
a Selection Committee can either take into consideration the marks obtained in
a qualifying examination or in the competitive test. Nor, it is said, can a
viva voce examination be permitted as a vehicle for selection. The validity of
holding a separate objective test is also assailed as also of assigning 35% of
the total marks to it. The merit test is challenged on the ground that no
curricula have been prescribed in relation thereto Objection to the objective
test and the viva voce examination is based on the ground that they fall
outside the scheme envisaged by the Regulations made by the Indian Medical
Council for admission to the M.B.B.S. course. The respondents, however,
question the validity of the Regulations. We are then referred by the
petitioners to clauses (j) and (I) of s. 33, Indian Medical Council Act, 1956 in
support of the contention that the power of the Council to make regulations
extends to making regulations prescribing the examinations and tests for
admission. It seems to us prima facie that those provisions do not authorise
the Council to do so. But we refrain from expressing any final opinion in the
matter as the Council is not a party before us. We are also not satisfied that
the reservations permissible must be confined to Scheduled Castes and Scheduled
Tribes. Nor do we find sufficient basis in the submission that there is
arbitrariness in providing for 35 marks to a separate objective test in
addition to the 35 marks earmarked for the qualifying examination. The grounds
taken before us do not justify the conclusion that a competitive entrance examination
is not permissible in law in addition to the qualifying examination. In regard
to the sufficiency of the objective test, we are not satisfied that the absence
of a prescribed formal curriculum vitiates the objective test.
The next contention on behalf of the
petitioners is that the presence of a Government official on the Selection
Committee vitiates its constitution. It is stressed that the viva voce test to
be acceptable should be conducted by persons who are men of high integrity,
calibre and qualifications. There is no principle of law, so far as we know,
disqualifying a Government official from participating on the Interview
Committee merely because he is a Government official. Nor do we believe that a
Government official cannot be a person of high integrity, calibre and
qualifications. The constitution of a 45 Committee lies in the wisdom of the
State Government and it is expected that men suitably qualified in every
respect will be appointed to discharge the functions of the Committee. So long as
the State Government acts bona fide and on the basis of relevant considerations
it is not possible to say that the appointment of a Government official is
obnoxious to the law.
In the result, the writ petitions are allowed
insofar that the selection of candidates for admission to the M.B.B.S. course
of the Government Medical Colleges at Srinagar and at Jammu for the year
1980-81 made on the basis of rectifying regional imbalances is quashed and the
respondents are directed to fill up those seats on the basis of open merit. The
candidates who will be displaced in consequence have already completed a few
months of study and in order to avoid serious prejudice and detriment to their
careers it is hoped that the State Government will deal sympathetically with
their cases so that while effect is given to the judgment of this Court the
rules may be suitably relaxed, if possible by a temporary increase in the
number of seats, in order to accommodate the displaced candidates. In the
circumstances, there is no order as to costs.
S.R. Petitions allowed.
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