& Ors Vs. State of Jammu & Kashmir & Ors  INSC 176 (3 May 1989)
Singh (J) Kuldip Singh (J) Singh, K.N. (J) Shetty, K.J. (J)
1989 AIR 1899 1989 SCR (3) 19 1989 SCC Supl. (2) 364 JT 1989 (2) 548 1989 SCALE
INFO : R 1990 SC1251 (11)
of India, 1950: Articles 32, 226--Judicial
review-Court not an appellate authority--Not to advise executive in matters of
policy--Doctrine of separation of powers----What is.
Colleges--Admission to Jammu & Kashmir Government Medical Colleges
(Selection of Candidates for Admission) Procedure Order 1987. Clause 2(b),
2(c), 3 and 4 High Court-Whether competent to issue direction to State
Government to constitute 'Statutory Body' for selections to medical colleges.
number of unsuccessful candidates to the MBBS/BDS course in the two Government
medical colleges of Jammu & Kashmir for the 1988-89 Session had challenged
in the High Court of Jammu and Kashmir the
selection to the above courses on the ground that the selection was violative
of the directions of the High Court in Jyotshana Sharma & Ors. v. State of
Jammu & Kashmir, (decided on 17.4.1987). In that case, the High Court had
directed the State of Jammu
and Kashmir to
entrust the selection process of the two medical colleges to a statutory
independent body, and till that was done, to entrust the process of selection
to such a body which was to be free from executive influence. In deference to
the observations of the High Court, the State Government issued the Jammu &
Kashmir Government Medical Colleges (selection of candidates for admission to
first year MBBS/BDS course and other professional courses) Procedure, Order,
1987. The Order provided for the constitution of a Competent Authority for the
purpose of making selections to the professional courses. Another order was
issued laying down the qualifications, functions, conditions of service and
powers and duties of the Competent Authority.
High Court allowed the writ petitions on the ground that the selection was in
violation of the court's directions in Jyotshana Sharma's case. The High Court
held the directions in Jyotshana Sharma's case to be of a binding nature and it
reiterated the same by issuing a mandamus.
Earlier the petitioners had filed a writ petition in the High Court challenging
the appointment of Prof. Satish Raina as the Competent Authority and
non-implementation of the directions in Jyotshana Sharma's case. The High Court
has disposed of the writ by a consent order. The order observed that the State
Government had reconstituted the Competent Authority by appointing two more
persons on it, that the reconstituted competent authority shall carry on with
the selection process, and the petitioners shall have liberty to challenge the
selection if still aggrieved on any ground. Later, a committee of three
academicians was constituted by the Government to assist the Competent
contended on behalf of the State and the selected candidates that the High Court
did not have the competence to issue directions to the State Government to
constitute a "Statutory Body" for selections to medical colleges. It
was further urged that the observations in Jyotshana Sharma's case were in the
nature of suggestions only, and even if those observations were taken as
directions, the same had been complied with.
behalf of the unsuccessful candidates it was inter alia contended that (1) the
reconstituted competent authority consisting of three members never functioned
because Shri J.P. Kesar did not join the other two members at any stage of the
selection; (2) the scrutiny was not done by the competent authority but by the
committee appointed by the State Government; (3) the committee appointed to
assist the Competent Authority could only be appointed by the Authority itself
and not by the Government; and (4) there were discrepancies in the criterion,
method and procedure of holding the entrance examination and the viva voce.
the appeals filed by the State and the successful candi-' dates and dismissing
the appeals filed by the unsuccessful candidates, this Court.
Although the doctrine of separation of powers has not been recognised under the
Constitution in its absolute rigidity but the Constitution makers have
meticulously defined the functions of various organs of the State. Legislature,
Executive and Judiciary have to function within their own spheres demarcated
under the Constitution. [30H; 31A]
Judicial review is a powerful weapon to restrain unconstitu21 tional exercise
of power by the legislature and executive.
expending horizon of judicial review has taken in its fold the concept of
social and economic justice. While exercise of powers by the legislature and
executive is subject to judicial restraint, the only check on Court's exercise
of power is the self imposed discipline of judicial restraint. [31C-D] Trop v.
Dulles, 356 US 86, referred to.
When a State action is challenged, the function of the court is to examine the
action in accordance with law and to determine whether the legislature or the
executive has acted within the powers and functions assigned under the
Constitution and if not, the court must strike down the action. While doing so
the court must remain within its self-imposed limits. [32B]
While exercising power of judicial review of administrative action, the court
is not an appellate authority.
Constitution does not permit the court to direct or advise the executive in
matters of policy or to sermonize qua any matter which under the Constitution
lies within the sphere of legislature or executive, provided these authorities
do not transgress their constitutional limits or statutory powers. [32C]
The High Court's direction for constituting "Statutory Independent
Body" obviously mean that the State legislature must enact a law in this
respect. The Constitution has laid down elaborate procedure for the legislature
to act thereunder. The legislature is supreme in its own sphere under the
Constitution. It is solely for the legislature to consider as to when and in
respect of what subject matter the laws are to be enacted. No directions in
this regard can be issued to the legislature by the courts. The High Court was,
therefore, patently in error in issuing directions in Jyotshana Sharma's case
and reiterating the same in the judgment under appeal. [33C-D] Narender Chand
Hem Raj & Ors. v. Lt. Governor, Union Territory, Himachal Pradesh & Ors.,
 1 SCR 940 and State of Himachal Pradesh
v. A parent of a student of medical college, Simla & Ors.,  3 SCC
169, referred to.
The Legislature of Jammu & Kashmir having not made any law pertaining to
medical education the field is exclusively to be operated by the executive
under Article 162 of the Constitution of India read with section 5 of Jammu
& Kashmir Constitution. [34F] 22
When the Constitution gives power to the executive Government to lay down
policy and procedure for admission to medical colleges in the State, then the
High Court has no authority to divest the executive of that power. [34F-G]
The procedure for selection laid down by the executive as well as the selection
are always open to judicial review on the ground of unreasonableness or on any
other constitutional or legal infirmity. [34H]
The State Government have substantially complied with the directions of the
High Court by issuing orders constituting the Competent Authority and providing
for method and elaborate procedure for making selections to the medical
three members authority was not a statutory authority. It was entrusted with
the functions of executive nature. The mere fact that one member did not
participate in the selection does not ipso facto render the selections illegal.
[36C-D] United Commercial Bank Ltd. v. Their Workmen,  SCR 380,
In the absence of any statutory provision to the contrary, it was perfectly
legitimate for the authority to function with two members. [37C-D] Avadh Bihari
Sinha v. University of Bihar, (C.A. 1650/67) decided by this Court on 4.1.1968,
Selection of candidates for admission to medical colleges does not involved
performance of any judicial or quasi-judicial functions. [36H]
The purpose of appointing a committee was to assist the competent authority.
The scrutiny having been approved by the competent authority, it cannot be said
that the competent authority abdicated its powers to the committee. [37H; 38A]
The objective test for the entrance examination and viva voce for admission to
the MBBS course in the medical colleges of Jammu & Kashmir was the accepted
method for selection. [39G] Kaushal Kr. Gupta v. State of Jammu & Kashmir,
 3 SCR 23 407 and Atul Khullar v. State of Jammu & Kashmir, 
Supp. SCC 225, referred to.
There is no material on the record to show that the procedure followed to fill
the reserved/general vacancies has resulted in excessive representation to the
reserve category. [40G]
It was open to the authority to either fix the minimum percentage of marks in
the written test for providing eligibility or to indicate the qualifying
cut-off line by calling candidates for viva voce in relation to the number of
APPELLATE JURISDICTION Civil Appeal No. 2711 of 1989 etc. etc.
the judgment and order dated 9.12.88 of the Jammu & Kashmir High Court in
WP. No. 1304 of 1988.
Prithvi Raj, M.H. Baig, Anil Dev Singh, B.Sen, D.D. Thakur, Altar Ahmed, A.D.
Singh, H.D. Pathak, D.C. Raina, Vijay Lakshimi Menon, S.K. Bhattacharya, Salman
Khurshid, L.R. Singh, R.C. Gandhi, P.D. Sharma, P.S. Shroff, S.S. Shroff, S.A. Shrooff,
Ramesh C. Pathan, S. Joginder Singh, Jaswant Singh Kotwal, E.C. Agarwala, Ms. Purnima
Bhatt, A.P. Aggarwal, Atul Sharma, V.K. Gupta, D.B. Sawhney, B.B. Sawhney, R. Satish,
S.S. Lehar, DaIveer Bhandari, Bhim Singh, R.C. Pathak, Suhail Dutt, Ms. V. Menon,
Ms. Indra Sawhney, Subhash Sharma and Anil Vaidhya for the appearing parties.
Judgment of the Court was delivered by KULDIP SINGH, J. Special Leave is
granted in all these petitions.
selection to the MBBS/BDS course for the session 1988-89 in the two Government
medical colleges of Jammu & Kashmir has been set aside in a bunch of writ
petitions by a Division Bench of Jammu & Kashmir High Court on the
The selection was not held in accordance with the directions of the said court
given in an earlier case Jyotshana Sharma and Ors., v. State of Jammu &
Kashmir, decided on 17th of 24 April, 1987 (hereinafter called Jyotshana
Sharma's case). In that case the High Court directed the State Government to
entrust the selection process of the two medical colleges to a statutory
independent body and till that was done the State Government should entrust the
process of selection to such a body which was to be free from executive
influence. No statutory body was constituted and hence according to the High
Court the selection made by any other authority was in violation of the
directions of the High Court and as such bad in law.
The selection was not held by the competent authority as constituted by the
order of the High Court dated 17th of October, 1988. Under the said order,
competent authority, was to consist of three persons. According to the High
Court all the three persons never met and all of them never scrutinised the
cases of the candidates who appeared in the entrance examination and viva voce
and as such the selection was invalid.
State of Jammu & Kashmir and the selected candidates have challenged the above
judgment of the High Court in these appeals. Some of the unsuccessful
petitioners before the High Court have also raised various additional grounds
of challenge to the selection.
various arguments have been advanced by the learned counsel for the parties
which we propose to examine but the primary question for consideration in these
appeals is whether the High Court has the competence to issue directions to the
State Government to constitute "Statutory Body" for selections to
medical colleges and whether the selection made by any other authority is
invalid on that ground alone.
necessary facts to understand the controversy are as under.
Sharma and a number of other unsuccessful candidates for admission to the two
medical colleges of Jammu & Kashmir for the year 1986-87 challenged the
selection by way of large number of writ petitions. A Division Bench of the
High Court by its judgment dated 17th April, 1987 upheld the selection in
general but allowed some individual writ petitions on different grounds. The
Bench, after adjudicating upon the points involved in the writ petitions, made
the following observations:
"Before parting with these writ petitions, we would like to say something
about the process of selection and about the safeguards required to be made by
the authorities about the reservation of some categories.
future State Government shall entrust the selection process of the two medical
colleges to a statutory independent body who will be vested with the power to conduct
examination of written as also of viva voce." "... The need to have a
statutory body for making the selection and for conducting the competitive test
has arisen because the candidates every year and this year also had made
grievance about the General Department being associated with the selection
process of the candidates. It is generally felt that General Department is a
branch of the administration & is under the direct influence of the
Administration. Therefore, fairness and objectivity of selection cannot be
achieved unless selection is ensured to be done by some independent body free
from executive influence. We have considered this argument & examined the
matter in its all aspects ...... " "... Therefore, it is ideal that
an independent statutory body is constituted for conduct of entrance test for
the MBBS/BDS course in the State which body shall be kept free from executive
influence. Till that is done, State may entrust the process of selection to
such a body which will be free from executive influence. At any rate we do not
approve Training Branch, or any other department of the State Government under
the control of Administration or associate with the process of selection for
the MBBS/BDS course in the State Medical Colleges. Selection Committee, till a
statutory body is constituted, shall consist of such persons who are
academicians of high calibre and with the process of selection principals of
the two medical colleges shall necessarily be associated.
evaluation of the answer scripts till a scientific method of setting up of
independent statutory body is evolved, as suggested by us, the evaluation of
answer scripts shall be made through such examiners who shall be appointed in
each subject in consultation with the Vice 26 Chancellors of the two
Universities of Jammu & Kashmir." Consequent upon the aforesaid
directions the State Government issued an order by a notification SRO 291 dated
18th of May, 1987 called the Jammu & Kashmir Government Medical Colleges
(selection of candidates for admission to first year MBBS/BDS course and other
professional courses) Procedure Order, 1987. (hereinafter called SRO 291).
2(b), 2(c), 3 and 4 of the Order are as under:
Competent Authority" means the authority constituted by the Government for
the purpose of making selection to the professional courses." "2(c)
Committee" means the committee of experts constituted by the Competent
Authority for the purpose of assisting the Competent Authority making selection
to professional courses."
"PERCENTAGE FOR FILLING UP SEATS The available seats shall be filled up:
From open merit category 50% ii) From reserved category 50%,,
"MERIT The inter-se merit of the candidate shall be determined on the
basis of the following:
written test 85 points ii) viva voce 15 points Total 100 points The points
earmarked for viva voce will be sub-divided into the following factors:
Aptitude 8 points ii) G.K.G.E 7 points Total 15 points" 27 On 18th of May,
1987 the Government also issued another Order called "The Competent
Authority" functions, Conditions of Service and Powers (Order) of 1987
(hereinafter called 1987 Order). Clauses 1, 2 and 5 of the Order are reproduced
"Qualification for appointment A person shall not be qualified for appointment
as Competent Authority unless he is educationist of repute having served the
State for a period of not less than 25 years."
"Resignation and removal (a) A person appointed as the Competent Authority
under clause (b) of the said Order may, by notice in writing under his hand
addressed to the Government resign his office.
The competent authority shall not be removed from his office except by an order
made by the Government on the ground of proved misconduct or incapacity after
an enquiry, made in which the competent authority had been informed of the
charges against him and given a reasonable opportunity of being heard in
respect of those charges."
"Powers and Duties (i) The Competent Authority shall have the following
powers and duties namely:
conduct written tests and hold interviews and take such other steps as may be
considered necessary for the purpose of making selection to the professional
select and invite experts and appoint examiners for the purpose specified in
appoint committees of persons specified in clause (b) for the purpose of
assisting the Competent Authority in making selection to professional course.
To incur such expenditure as shall be necessary for the due discharge of his
powers under this para, out of the funds placed at his disposal by the
Government from time to time.
Subject to the orders issued by the Government in this behalf from time to time
the competent authority shall be fully independent for exercise of the powers
vested in him in this paras".
under SRO 29 1 one Shri Satish Raina, retired principal, S.P. College, Srinagar,
was appointed as the Competent Authority on 19.5. 1987.
the selection to the medical colleges for the year 1987-88 was also challenged
in a number of writ petitions. The judgment was delivered in Farooq Ahmed Bacha
and others v. State of Jammu & Kashmir, and connected petitions on th of
June, 1988. Both the Judges constituting the Bench, differed and as such by
formulating points of difference the case was referred to a third Judge. The
main challenge in Bacha's case was to Government notification SRO 460A which
provided 50% reservations for female candidates.
case was pending before the third Judge, the process of selection for admission
to the medical colleges for the session 1988-89 had commenced and almost
completed. The written test was held on 7th and 8th of August, 1988 and the
result was published on 25th of August, 1988. The viva voce test was held from
29th August, 1988 to 7th of September, 1988. While the viva voce test was going
on, a Bunch of writ petitions including Rajeev Mahajan & others v. State of
Jammu & Kashmir, were filed in Jammu & Kashmir High Court challenging
the appointment of Prof. Satish Raina as competent authority and
non-implementation of the directions in Jyotshana Sharma's case. It was prayed
that the writ petitioners be declared to have qualified the written test and
they be called for viva voce.
these petitions were pending, the State Government superseded the Order dated
19th of May, 1987 appointing Prof. Satish Raina as competent authority and
instead issued a fresh Order dated 15.9.1988 reconstituting the competent
authority consisting of Dr. Aga Ashraf Ali, Mr. J.P. Kesar and PrOf. Satish Raina.
The writ petitions Rajeev Mahajan and others v. State of Jammu & Kashmir
& Ors., came up for hearing on 17th of October, 1988 and the High 29 Court
disposed off the writ petitions by a consent order, which is as under:
has been pointed out that Government have issued order No. 1347-GD of 1988
dated 15.9.1988 reconstituting the Competent Authority in supersession of
Government Order No. 923-GD of 1987 dated May 19, 1987 consisting of
Dr. Aga Ashraf Ali
J.P. Kesar and
Prof. Satish Raina.
agreed to by the learned counsel for both the sides, the selection process for
the selection of candidates for admission to 1st year MBBS/BDS course 1988-89
shall be carried out by the above said reconstituted competent authority after
scrutinizing all the cases of the candidates who appeared in the entrance
examination. Petitioner shall however have liberty to challenge the selection
if he still feels aggrieved on all the grounds which are available to him.
the above said agreed order, we dispose of .the petition and order accordingly.
The stay order passed earlier shall stand vacated and the connected CMPs
disposed of." On 22nd
October, 1988 a
committee consisting of Prof M.Y. Tawana, Retired Controller of Examination, University of Kashmir, Dr. Y. Singh, Prof. of Physics, University of Kashmir and Dr. Abdul Azim, Reader in Mathematics, University of Kashmir, was constituted to assist the competent authority.
27th of October, 1988 list of selected candidates to the MBBS/BDS course for
the session 1988-89 was published.
Rajeev Mahajan and number of other unsuccessful candidates started second round
of litigation by filing writ petitions in the High Court on 29th October, 1988.
the second batch of petitions was pending before the High Court, on 2 Ist
November, 1988 the learned Chief Justice in the capacity of a third Judge,
delivered judgment on the reference in Farooq Bacha's case. The learned Chief
Justice in the last para of judgment observed as under:
"Before parting with the case and even at the cost of repetition, I would
like to emphasize on the state government that to ensure fairness in the
selection to the professional colleges, an autonomous independent statutory
body, with security of tenure for its members, should be created expeditiously,
to function as far as possible, on the lines suggested by the Division Bench in
Jyotshana Sharma's case and the stop-gap arrangement made by reconstituting the
competent authority comprising three gentlemen, as noticed earlier, should not
be considered as a substitute for it. In the interim period, the reconstituted
Competent Authority should also function keeping in view the guidelines given
by the apex court and this court in various judgments, including the ones in Jyotshana
Sharma's case and the submission of Mr. B .A. Khan." The batch of writ
petitions Rajeev Mahajan & Ors. v. State of Jammu & Kashmir & ors. was
finally heard by the High Court on 29th of November, 1988 and the judgment was
pronounced on 9th of December, 1988. The High Court allowed the writ petitions
holding that the list of selected candidates was liable to be quashed on the
ground of its having been issued in violation of court's directions in Jyotshana
Sharma's case. The High Court, however, directed that the respondent-state
should reconstitute the competent authority within a period of 2 weeks for finalising
the selection for the session 1988-89 on the basis of written test already
conducted excluding the viva voce. It was further directed by the High Court
that the marks obtained by the candidates in the Science subjects of the
qualifying examination may be equated with 15 points reserved for viva voce and
be awarded to the candidates proportionately according to their merit in the
Science subjects in the qualifying examination. Such points be added in the
points obtained by the candidates in the written entrance test already
conducted and thereafter the merit list of the candidates be prepared. The High
Court has held the directions in Jyotshana Sharma's case to be of binding
nature and it reiterated the same by issuing a mandamus. The present appeals
are against the aforesaid judgment of the Jammu & Kashmir High Court.
adverting to the controversy directly involved in these appeals we may have a
fresh look on the inter-se functioning of the three organs of democracy under
our Constitution. Although the doctrine of separation of powers has not been recognised
under the Constitution in its absolute rigidity but the Constitution makers
have 31 meticulously defined the functions of various organs of the State.
Legislature, Executive and Judiciary have to function within their own spheres
demarcated under the Constitution.
organ can usurp the functions assigned to another. The Constitution trusts to
the judgment of these organs to function and exercise their discretion by
strictly following the procedure prescribed therein. The functioning of
democracy depends upon the strength and independence of each of its organs.
Legislature and executive, the two facets of people's will, they have all the
powers including that of finance. Judiciary has no power over sword or the
purse nonetheless it has power to ensure that the aforesaid two main organs of
State function within the constitutional limits. It is the sentinel of
democracy. Judicial review is a powerful weapon to restrain unconstitutional
exercise of power by the legislature and executive. The expanding horizon of
judicial review has taken in its fold the concept of social and economic
justice. While exercise of powers by the legislature and executive is subject
to judicial restraint, the only check on our own exercise of power is the self
imposed discipline of judicial restraint.
J. of the U.S. Supreme Court dissenting in the controversial expatriation case
of Trop v. Dulles, 356 US 86 observed as under:
power is, in Madison's phrase, "of an encroaching nature". Judicial
power is not immune against this human weakness. It also must be on guard
against encroaching beyond its proper bounds, and not the less so since the
only restraint upon it is selfrestraint ........
observance of the difference between limits of power and wise exercise of
power--between questions of authority and questions of prudence--requires the
most alert appreciation of this decisive but subtle relationship of two
concepts that too easily coalesce. No less does it require a disciplined will
to adhere to the difference. It is not easy to stand aloof and allow want of
wisdom to prevail to disregard one's own strongly held view of what is wise in
the conduct of affairs. But it is not the business of this Court to pronounce
policy. It must observe a fastidious regard for limitations on its own power,
and this precludes the Court's giving effect to its own notions of what is wise
or politic. That self-restraint is of the essence in the observance of the
judicial oath, for the Constitution has not 32 authorized the judges to sit in
judgment on the wisdom of what Congress and the Executive Branch do." When
a State action is challenged, the function of the court is to examine the
action in accordance with Law and to determine whether the legislature or the
executive has acted within the powers and functions assigned under the
Constitution and if not, the court must strike down the action.
doing so the court must remain within its self-imposed limits. The court sits
in judgment on the action of a coordinate branch of the Government. While
exercising power of judicial review of administrative action, the court is not
an appellate authority. The Constitution does not permit the court to direct or
advise the executive in matters of policy or to sermonize qua any matter which
under the Constitution lies within the sphere of legislature of executive,
provided these authorities do not transgress their constitutional limits or
coming to the judgment under appeal the High Court says that its directions
issued in Jyotshana Sharma's case have not been complied with thereby rendering
the stateaction in making selections for admission to the medical colleges
invalid. To examine the High Court reasoning we have to see, as to which of the
three organs of the State is entrusted, under the Constitution, with the
function of taking a policy decision regarding management and admissions to
medical colleges in the State. Both the medical colleges at Jammu and Srinagar are Government institutions. Entry 25 List III of Seventh
Schedule, Article 246(2) and Article 162 of the Constitution of India and
Section 5 of the Constitution of Jammu & Kashmir which are relevant, are
25. Education, including technical education, medical education and
universities, subject to the provisions of Entries 63, 64, 65 and 66 of List 1;
vocational and technical training of labour" "Art. 246.
Subject-matter of laws made by Parliament and by the Legislatures of
States--(2) Notwithstanding anything in clause (3), Parliament, and, subject to
clause (1), the Legislature of any State also, have power to make laws with
respect to any of the matters enumerated in List III in the Seventh Schedule
(in this Constitution referred to as the "Concurrent List")." 33
"Art. 162. Extent of executive power of State--Subject to the provisions
of this Constitution, the executive power of a State shall extend to the
matters with respect to which the Legislature of the State has power to make
laws." "Section 5. Extent of executive and legislative power of the
State --The executive and legislative power of the State extends to all matters
except those with respect to which Parliament has power to make laws for the
State under the provisions of the Constitution of India." The High Courts
directions for constituting "Statutory Independent Body" obviously
mean that the State legislature must enact a Law in this respect. The
Constitution has laid-down elaborate procedure for the legislature to act there
under. The legislature is supreme in its own sphere under the Constitution. It
is solely for the legislature to consider as to when and in respect of what
subject matter, the laws are to be enacted. No directions m this regard can be
issued to the legislature by the courts. The High Court was, therefore,
patently in error in issuing directions in Jyotshana Sharma's case and
reiterating the same in the judgment under appeal.
Court in Narender Chand Hem Raj & Ors. v. Lt. Governor, Union Territory, Himachal Pradesh & Ors.,  1 SCR 940 observed as
power to impose tax is undoubtedly a legislative power. That power can be
exercised by the legislature directly or subject to certain conditions, the
legislature may delegate that power to some other authority. But the exercise
of that power whether by the legislature or by its delegate is an exercise of a
legislative power. The fact that the power was delegated to the executive does
not convert that power into an executive or administrative power. No court can
issue a mandate to a legislature to enact a particular law.
no court can direct a subordinate legislative body to enact or not to enact a
law which it may be competent to enact." In the State of Himachal Pradesh v. A parent of a student of medical
college, Simla and ors.,  3 SCC 169 this court held as under:
"... The directions given by the Division Bench was really nothing short
of an indirect attempt to compel the State Government to initiate legislation
with a view to curbing the evil of ragging, for otherwise it is difficult to
see why, after the clear. and categorical statement by the Chief Secretary on
behalf of the State Government that the Government will introduce legislation
if found necessary and so advised, the Division Bench should have proceeded to
again give the same direction. Thus the Division Bench was clearly not entitled
to do. It is entirely a matter for the executive branch of the Government to
decide whether or not to introduce any particular le gislation. Of course, any
member of the legislature can also introduce legislation but the court
certainly cannot mandate the executive or any member of the legislature to
initiate legislation, howsoever necessary or desirable the court may consider
it to be. That is not a matter which is within the sphere of the functions and
duties allocated to the judiciary under the Constitution ...... "
"... But at the same time the court cannot usurp the functions assigned to
the executive and the legislature under the Constitution and it cannot even
indirectly require the executive to introduce a particular legislation or the
legislature to pass it or assume to itself a supervisory role over the
law-making activities of the executive and the legislature." The
legislature of Jammu & Kashmir having not made any law pertaining to
medical education the field is exclusively to be operated by the executive
under Article 162 of the Constitution of India read with Section 5 of Jammu
& Kashmir Constitution. When the Constitution gives power to the executive
Government to lay-down policy and procedure for admission to medical colleges
in the State then the High Court has no authority to divest the executive of
that power. The State Government in its executive power, in the absence of any
law on the subject, is the competent authority to prescribe method and procedure
for admission to the medical colleges by executive instructions but the High
Court transgressed its self imposed limits in issuing the aforesaid directions
for constituting statutory authority.
would make it clear that the procedure for selection laid-down by the executive
as well as the selection is always open to judicial review on the ground of
unreasonableness or on any other constitutional or legal infirmity.
Altaf Ahmed, learned Advocate General, Jammu & Kashmir, appearing for the
State, Mr. M.H. Baig and Mr. G.L. Sanghi, learned counsel appearing for the
selected candidates, have contended that the observations in Jyotshana Sharma's
case were in the nature of suggestions by the Court. It is further argued that
even if those are taken to be directions, the same have been complied with by
the State Government. There was no issue before the court in Jyotshana Sharma's
case regarding method or procedure adopted by the Government for making
selections. None of the parties argued for Statutory Body on the ground of lack
of confidence in the executive. A bare reading of the judgment shows that the
Bench, before parting with the judgment, laid-down some guidelines for the
Government to follow. The learned Chief Justice in his judgment in Farooq Bacha's
case, reiterated the necessity of having an autonomous independent statutory
body "on the lines suggested by the Division Bench in Jyotshana Sharma's
case." The learned Chief Justice rightly treated the Bench's observations
as suggestions and we agree with the same. There is also force in the
contention that assuming the said suggestions to be the directions, the same
have been complied with. SRO 29 1 was issued as a consequence of the judgment
in Jyotshana sharma's case. The notification specifically states "whereas
a Division Bench of the High Court by judgment and order 17th April, 1987
inter-alia made certain suggestions for improving the system for making
admission to MBBS/BDS course in the State, now, therefore, in deference to the
observations of the High Court of Jammu & Kashmir ..... the Government
hereby makes the following order ..... "Mr. Bhim Singh, learned counsel
appearing for the unsuccessful candidates, however, argued that the principals
of two medical colleges have not been associated with the selections. That may
be so but we are satisfied that SRO 291 read with 1987 Order issued by the
State Government which provide method and elaborate procedure for making
selections to the medical colleges of Jammu & Kashmir substantially comply
with the directions of the High Court.
Singh, Mr. Anil Dev Singh, Mr. D.D. Thakur and Mr. Salman Khurshid, the learned
counsel appearing for the unsuccessful candidates have vehemently contended
that the reconstituted competent authority consisting of three members never
functioned because Shri J.P. Kesar did not join the other two members at any
stage of the selection process.
also contended that the scrutiny as per consent order dated 17th October, 1988 was not done by the competent authority
but by the committee appointed by the State Government. Before examining these
contentions we may notice that the competent 36 authority was reconstituted on
15th September, 1988 by the State Government and it was approved by the High
Court in the consent order dated 17th of October, 1988. The written test had
taken place on 7th and 8th August, 1988 and the result thereof was published on
25th of August, 1988. The viva voce test was held from 29th August, 1988 to 7th September, 1988. The whole of the process of selection was almost
complete on 17th October, 1988 when the consent order reconstituting the
competent authority was passed by the High Court. The competent authority was
only to scrutinize the selections. There are no specific allegations of favouritism
or arbitrariness in the conduct of entrance examination or the viva voce.
now examine the submissions. It is an admitted fact that Mr. J.P. Kesar never
functioned as part of competent authority. The scrutiny and compilation of the
selections was done by two members namely Dr. Aga Ashraf Ali and Prof. Satish Raina.
The three member authority was not a statutory authority. It was entrusted with
the functions of executive nature. The mere fact that one member did not
participate in the selection does not ipso facto render the selections illegal.
Mr. Anil Dev Singh disputed the validity of selection placing reliance on the
United Commercial Bank Ltd. v. Their workmen,  SCR 380. In this case
Central Government had constituted an Industrial Tribunal for the adjudication
of industrial disputes in banking companies in exercise of its powers under
Section 7 of the Industrial disputes Act, 1947. The tribunal was to consist of
three members. One of the members did not function on the tribunal for a period
of about three months. By a majority judgment this Court held that the two
remaining members were not a duly constituted tribunal and any proceedings in
the absence of the third member without reconstituting the tribunal were
without jurisdiction. This Court, construing the provisions of Sections 7 and 8
of Industrial disputes Act, 1947 read with Rule 5 of the Industrial Disputes
Rules, 1949, came to the conclusion that when a vacancy occurred it was
obligatory on the Government to notify its decision as to whether it intended
to fill up the vacancy or not, and if the Government decided not to fill up the
vacancy, a notification under Section 7 of the Act was essential to
reconstitute the remaining members of the tribunal. The decision was rendered
on the construction of the relevant statutory provisions and keeping in view
the fact that the tribunal was to perform quasi-judicial functions. The ratio
of this decision is inapplicable to the committee constituted by executive
order for performing purely administrative functions. Selection of candidates
for admission to medical colleges does not involve performance of any judicial
or quasi-judicial functions. Mr. Anil Dev 37 Singh then relied upon A vadh Bihari
Sinha v. University of Bihar, C.A. 1650/67 decided by this Court on 4th of
January, 1968. In this case Bihar University Regulations framed under the Bihar
State Universities Act, 1960 provided that a Board of moderators must consist
of five members of whom two must be external experts. Two external experts were
invited to join the Board but they declined. The appointment of members to the
Board was to be completed only after they were designated and had accepted
their appointment. Three members without the two external experts moderated an
award which was set aside by this Court. This was a case where interpreting the
statutory provisions of the regulations this Court came to the conclusion that
the constitution of the Board of moderators was not complete without the
designation and acceptance of the appointment by the external experts.
ratio cannot be attracted to the facts of the present case. In the present case
competent authority with three members was constituted by an executive action.
In the absence of any statutory provision to the contrary, it was perfectly
legitimate for the authority to function with two members. Even otherwise the
written test and viva voce having already taken place, the selection process
was almost complete and nothing much was left for the competent authority to
do. It had only to scrutinize and finalise the selection. No arguments were
addressed and not a single circumstance was pointed out to show any prejudice
to any candidate in the scrutiny and finalisation of the selection by the
authority. Mr. Altar Ahmed fairly made all the records available in the Court.
The learned counsel for the unsuccessful candidates could not point out any
prejudice or injustice to any of them. We have, therefore, no hesitation in
rejecting this contention of the learned counsel.
the other attack on competent authority it is argued that under the consent
order it was the reconstituted competent authority which was to scrutinize all
the cases of the candidates who appeared in the entrance examination and since
it was done only by the committee the selection is vitiated. Mr. Altar Ahmed
has taken us through the records and we find that the committee consisting of
Prof. Shafi-ud-Din, Dr. Y. Singh and Dr. Abdul Aziz scrutinized the answer
sheets of the candidates and recorded a note to this effect on 24th of October,
1988. Thereafter the two members of the competent authority approved the said
scrutiny on 25th of October, 1988. It is, therefore, not correct to say that
the scrutiny was done only by the committee and not by the competent authority.
The purpose of appointing a committee under SRO 291 read with 1987 Order was to
assist the competent authority. The scrutiny in this case having been approved
38 by the competent authority, it cannot be said that the competent authority
abdicated its powers to the committee.
therefore, do not see any force in this argument of the learned counsel.
Singh also objected to the appointment of committee by the Government.
According to him under SRO 291 the committee could only be appointed by the
competent authority. Reading SRO 291 with 1987 order it is clear that the
competent authority is to function subject to the orders issued by the
Government from time to time. The Government was therefore, within its
authority to appoint the committee and no fault can be found with the same.
the learned counsel appearing for the unsuccessful candidates have attacked the
method and procedure of holding the entrance examination and the viva voce. Mr.
Altar Ahmed with the help of Prof. Satish Raina, who was present in the Court
and also other officials, explained to us the way the entrance examination and
the viva voce was conducted. The entrance examination prescribed by the
competent authority is of an objective type test. Every candidate taking the
written examination is provided with one copy of answer sheet and one question
booklet per subject. Every question paper contains 70 questions and each
question has one correct answer and three distractors printed on the question
paper itself. Every answer sheet is a printed document in duplicate and the
candidate has to write the answer in the space provided against the question
number. The candidate is required to put the number of what according to him is
the correct answer, on the answer sheet against the question number. Similarly
the viva voce test is also on objective basis. The candidates are supplied with
printed question cards in two lots. Lot
'A' consist of question cards pertaining to general science for determining the
aptitude of the candidates. Lot 'B' consist of question cards pertaining to the
general knowledge to test the general ability of the candidates. The experts
are provided with necessary answer booklets which carry the answer to a
question against a particular serial number of the question card. The candidate
is asked to pick up two questions cards one at a time from each lot. Each
correct answer is awarded four marks in the case of lot 'A' and 3.5 marks in
the case of lot 'B'. 'The award is given to the candidate and recorded on the
award sheet supplied to the experts. The award is as per answers given in the
answer booklet. The proceedings of the day including the viva voce of each
candidate is tape recorded and kept on record. The awards of the written
examination and viva voce are sent to CMC India Ltd., New Delhi for computerised
above procedure was demonstrated before us in the Court. It has totally
eliminated the element of discretion and has minimised the scope of favouritism.
Mr. Altaf Ahmed fairly offered to produce the answer sheets or to play the tape
recording in respect of any candidate. Although Mr. Bhim Singh generally argued
that there was bugling in the entrance examination and the viva voce but he
could not specifically point out any infirmity in the whole of the process of
selection. Mr. Salman Khurshid also appearing for the unsuccessful candidates
has contended that in the process of selection while bringing objectivity and
reducing subjectivity the element of chance has crept in. We would prefer a
method of selection which rules out human discretion and favouritism but may
bring in a fraction of chance in its operation. This very method of viva voce
came for consideration before this Court in Kaushal Kr. Gupta v. State ofJammu
& Kashmir,  3 SCR 407. The court
..... We must record our appreciation that respondents 1 to 3 have practically
set at naught drawbacks and deficiencies in oral interview as pointed out by
this Court. The viva voce test conducted must be held to be fair, free from the
charge of arbitrariness, reasonable and just ......
the expectation of the Court which frowns upon anything arbitrary or
unreasonable hag added to the workload of the Selection Committee. But today
when there is rush for admission to Engineering Colleges like the Ceaser's
wife, the selection must be objective and beyond reproach. That has been
scientifically achieved in this case. We hope that bodies charged with the
difficult task of ascertaining merits for admission will take cue from what has
been done by respondents 1 to 3 and the lead provided by them in this field
would restore faith of young aspirants in the system ..... " The objective
test for entrance examination and viva voce for admission to the MBBS course in
the medical colleges of Jammu & Kashmir for the session 1984-85 was again
approved by this Court in Atul Khullar v. State of J & K,  Supp. SCC
225. We see no force in the argument of learned counsel and uphold the
Singh invited our attention to the judgment rendered by one of the learned
judges in Farooq Bacha's case to show that there were observations adversely criticising
the conduct of Prof. Satish Raina. Mr. Bhim Singh says that since the conduct
of a person was 40 adversely commented upon by one of the learned judges, it
was unfair to entrust him with the functions of competent authority. The action
of the State 'Government, according to him, is not bona fide and as such the
selection is vitiated.
correct that there are some adverse observations, but the same have not been
endorsed by the learned Chief Justice who delivered the judgment on reference.
In any case all the parties including the unsuccessful candidates agreed to the
consent order which was passed by the High Court on 17th of October, 1988.
These candidates accepted the appointment of Prof. Satish Raina in the
reconstituted competent authority.
to their knowledge that entrance examination and viva voce, which was complete
before the consent order, was got conducted by Prof. Satish Raina. No objection
was raised to the process of selection already conducted by Prof. Satish Raina,
rather his appointment on the reconstituted competent authority to complete the
remaining process of selection was accepted by the parties in the consent
Sen learned counsel appearing in SLP (C) No. 1299/89 contends that 50% seats
are to be filled from general category and remaining 50% from reserved
categories. He urged that when a reserved candidates secures merit in the first
50% seats then he is treated as a general candidates and the seat in the
reserved category which he should have occupied is given to some other reserved
candidates with lower points. According to him the reserved candidate who secures
merit in both the general category and the reserved category must consume the
seat in the reserved category and not the general category. The reservations
have been provided under SRO 291 read with SRO 272 dated 3rd of July, 1982.
Paras II and III of SRO 272 together it is clear that the 50% of the general
category seats have to be filled in the first instance and remaining seats are
to be offered to the reserved category thereafter. Counting the reserve
candidate, who fall within the first 50 positions, as general candidate, is
thus permissible under SRO 272. The executive orders providing reservations
have not been challenged.
is no material on the record to show that procedure followed to fill the
reserve/general vacancies has resulted in excessive representation to the
reserve category. We, therefore, see no merit in the contention.
Sen and Mr. Bhim Singh also assailed the selections on the ground that SRO 380
dated 7th of July, 1983 as amended by notification dated 9th May, 1986 provides that the candidates who
obtain such minimum qualifying marks in the written test as may be fixed shall
only be called for viva voce. It is argued that since minimum 41 qualifying
marks have not been fixed the selection is bad.
not agree with the learned counsel. The competent authority called candidates
for viva voce four times the number of seats available for admission. It was
open to the authority to either fix the minimum percentage of marks for
providing eligibility or to indicate the qualifying cut-off-line by calling
candidates in relation to the number of vacancies. In all 2921 candidates
qualified in the written test out of which 710 candidates, four times the
number of available seats, were called for viva voce. The cut-offline at 710
indicates the minimum qualifying marks. There is thus no merit in the
4252A/1989 in SLP(C) No. 92/1989 by one Iqbal Singh who was a candidate for one
of the seats reserved for the sportsment. Mr. Anil Dev Singh appearing for him
contended that he was recommended at number one in the category of sportsmen
but in spite of that he was not selected. A sportsmen has been defined under
SRO 272 to mean one who has shown outstanding ability in sports and games at
State/National level. All those candidates who fulfil the criteria fall within
the category of sportsmen, but their selection depends on the merit earned by
the candidates in the entrance examination and the viva voce. It is not
disputed that all the candidates selected in the sports category have higher
merit than Iqbal Singh. The contention is thus rejected.
E.C. Aggarwala appearing for unsuccessful candidate Shaheen Aara contended that
the candidate got 73.83 points and was bracketed with another girl who also got
73.83 points. He says in the case of a tie, both the candidates should be
selected. This contention' cannot be accepted in view of the procedure provided
by the competent authority for this eventuality. In a case of the inter-se
merit of the candidates is to be determined in order of preference i.e..:
Candidate obtaining higher marks in Biology, (ii) Candidate obtaining higher
marks in Biology and Chemistry in aggregate, (iii) candidate older in age to be
adopting above criteria the other girl was rightly preferred to Shaheen Aara.
Mr. E.C. Aggarwala raised another argument that under SRO 291 50% of the
available seats are to be filled from general category. He urged that there was
191 available seats and as such 96 42 seats should have gone to general
category and 95 to the reserved category. According to him only 93 seats have
been given to the general category and if three more seats are added Shaheen Aara
comes within the zone of selection. On the other hand Mr. Altar Ahmed urged
that 50% is to be counted of the local intake. According to him 175 seats for
MBBS and 10 seats for BDS are for the local candidates which he meant as
local-intake. According to him total available seats for local-intake being 185
the general category has been rightly given 93 seats. He urged that six
additional seats have been provided for Non Resident Defence Personnel, Para
Military Defence Personnel and Non Residents under the Government Orders.
According to him these six seats cannot be added to the available seats which
would remain 185. We see no illegality in taking 185 as the number of available
seats for determining 50% for the general category.
in SLP (C) No. 305/89 contends that petitioner Jyoti Kumari is at number one in
the waiting list of Scheduled Caste candidate. There are 15 seats for this
category as a result of 8% reservations. Since 50% seats have to go to female
candidates out of these 15 seats, 7 have been given to men and 7 to women. The
15th seat has been given to a male Schedule Caste candidate as he was having
better merit than Jyoti Kumari. Mr. Prithviraj contends that 8th seat should
have been given to the female candidate. There being one seat between a male
and female candidate it has been rightly given to the male candidate with
view of the above discussion Civil Appeals arising out of SLP(C) Nos.
16112-57/88 and SLP(C) No. 92/89 filed by the State of Jammu & Kashmir and
the successful candidates are allowed, the judgment of the Jammu & Kashmir
High Court is set aside and the writ petitions filed by the unsuccessful
candidates before the Jammu & Kashmir High Court are dismissed. Civil
Appeals arising out of SLP(C) No. 287 of 1989, SLP(C) No. 305 of 1989 and
SLP(C) No. 1299 of 1989 filed by the unsuccessful candidates are dismissed. CMP
4252A/89 is also dismissed. There shall be no order as to costs.