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Report No. 123

13. As pointed out hereinbefore, since there is a great rush for admission to professional colleges, especially engineering and medicine, the universities, in order to forestall any charge of nepotism or subjective preferences, proceed to introduce a written entrance test and would regulate admissions according to the merit disclosed by the test. The written entry test extends equal opportunity to every one taking the test to establish his/her merit. This test was challenged on the ground that a test prescribing proficiency in technical subjects cannot be ordered by the Government. At best, it can be done by the Academic Council of the University.

The Court held that the Government which run the colleges had the right to make a selection out of a large number of candidates and for this purpose, the Government can prescribe a test of its own, which was not against law.1 Some of the Universities prescribe written test as well as viva voce test. The viva voce test was challenged on the ground that the questions and answers being oral and the view about personality being highly subjective, it must be rejected as arbitrary and untenable. The court undoubtedly negatived the argument.2

However, in the same case, the court observed that once the order prescribing criteria for admission laid down the objective criteria and entrusted the matter of selection to the qualified persons, the court cannot obviously have any say in the matter.3 However, at a later stage, the controversy developed about the total marks assigned for viva voce test in relation to written test. In some cases, it was found that those who performed well in the written test went down in the merit list on account of their inadequate performance in viva voce test. Once this ugly feature developed, the courts again interposed by observing that:

"When there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test cannot be accepted by the court as free from the vice of arbitrariness."4

The largest number of cases that flooded the court year after year commencing from 1951 till now centres round the policy of reservation of seats for members of socially and educationally backward classes of citizens, Scheduled Castes and the Scheduled Tribes. It would again not be worthwhile to refer to all the decisions save a few. In order to establish clear cleavage of opinion on a policy decision between Executive and Judiciary, one may refer at once to the earliest decision in which the Supreme Court struck down the classification in the Communal G.O. of Madras founded on the basis of religion and caste on the ground that it is opposed to the Constitution and constitutes a clear violation of the Fundamental Rights guaranteed to the citizen.

The court while rejecting the submission on behalf of the State that the reservation was prescribed to give effect to Directive Principles of State Policy as envisaged in Part IV of the Constitution, ruled that the Directive Principles of State Policy have to conform to, and run as subsidiary to, the chapter on Fundamental Rights.5 As the State in the discharge of its Constitutional obligations increased the percentage of reservation, the courts got into deeper mire of these Policy decisions. Even though Article 15(4) uses the expression, 'socially and educationally backward classes of citizens'. Caste was taken as a label indicative of such backwardness.

The courts interposed saying that caste cannot be the sole or dominant test to determine social backwardness of groups or classes of citizens, while conceding that the classes of citizens who are deplorably poor automatically become socially backward. The criterion for determining social and educational backwardness was confined to caste-tag. Then the court further proceeded to decide what ought to be the fair percentage of reservation;6 and observed that any reservation above 50% would not be fair or constitutionally valid.

As the dispute repeatedly raised its head in courts, it became necessary to draw a distinction between caste and class and a set of objective principles for ascertaining social and educational backwardness. This approach of the court was reflected in a later case in which the majority decision upheld the validity of the orders made by the Government of Mysore in respect of admissions to engineering and medical colleges and observed that a classification of backward classes based on economic conditions and occupations is not bad and does not offend Article 15(4) of the Constitution.

The caste was considered to be a relevant consideration but cannot be the sole or determining factor.7 The pendulum swung the other way round when the court fell back on caste as a tag for determining social and educational backwardness. It said that there was no gainsaying the fact that there are numerous castes in this country which are socially and educationally backward. To ignore their existence is to ignore the realities of life.8 If social and educational backwardness is determined by the membership of a caste, obviously, it will have to be presumed that every member of the caste is socially and educationally backward.

The assumption is not well founded.9 In view of the vacillations of the courts, both with regard to the caste test and means test, one State made an order that cultivations of land the size of whose holding was below the prescribed minimum must be treated at socially and educationally backward and eligible for reserved seat. The court struck it down.10 Similarly, reservation in favour of rural areas was held to be impermissible on the ground that poverty in rural areas cannot be the basis of classification to support reservation for rural areas.11

Reservations in favour of Scheduled Castes and the Scheduled Tribes have, more or less, been upheld on the ground that the political democracy was merely a means to an end to set up a social democracy by which it was meant the social fabric resting upon the principle of 'one man, one value' which would require total abolition of social and economic inequality.12 To conclude on this point, as late as 1985, a Constitution Bench of the Supreme Court delivered five different opinions which have not helped in improving the situation.13

Every State has its own local problems and has to provide for their satisfactory solution. Every State takes policy decisions and ultimately, the policy decision is interfered with by the courts. The State of Jammu & Kashmir, in order to rectify the regional imbalance in the allocation of seats for admission to the medical college, made reservation of 80% seats without identifying the areas suffering from imbalances. The court declared the reservation unconstitutional under Article 14.14 Similarly, the State of Tamil Nadu, failing in its attempt to gave preference on the basis of residence in the State, adopted a novel method of creating units for admission to the medical colleges in the State. The units comprised various undergraduate colleges. The intending applicants were asked not to apply for any of the units but were advised to apply to that unit which was near to their place of residence, as far as possible.

The unitwise preference was challenged as being violative of Articles 14 and 15 on the ground that the State's action was discriminatory in character. The challenge met with the approval of the court and the order was struck down.15 Occasionally, some reserved seats for Scheduled Castes and Scheduled Tribes were claimed by converts to Hinduism which claim was rejected by the court on the ground that a convert must be accepted by the other members of the said caste and admitted within their fold.16 It is not intended to cover all cases but the specimen herein referred to would show the divergence in the views even in the matter of policy decisions between the Executive and the Judiciary and it is notorious that the judiciary takes time render its decisions and the whole policy gets nullified after years leaving a number of victims who suffer on account of this uninformed judicial intervention.

1. State of Andhra Pradesh v. Narendra Nath, AIR 1971 SC 2560, and the view therein expressed was re-affirmed in Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.

2. R. Chitrale Khu v. State of Mysore, AIR 1964 SC 1823.

3. Ibid, p. 1831

4. Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.

5. State of Madras v. Champakam Dorairajan, 1931 SCR 523.

6. M.R. Balaji v.. State of Mysore, (1963) Supp 1 SCR 439.

7. R. Chitrealekha v. State of Mysore, AIR 1964 SC 1823.

8. A. Periakaruppan v. State of Tamil Nadu, AIR 1971 SC 2303.

9. State of Andhra Pradesh v. U.S.V. Balram, AIR 1972 SC 1375.

10. Janaki Prasad Perimoo v. State of Jammu & Kashmir, AIR 1973 SC 930.

11. State of Uttar Pradesh v. Pradeep Tandon, AIR 1975 SC 563.

12. Akhil Bharatiya Soshit Karmachari Sangh v. Union of India, AIR 1981 SC 298.

13. K.C. Vasant Kumar v. State of Karnataka, AIR 1985 SC 1495.

14. Nishi Maghu v. State of Jammu & Kashmir, AIR 1980 SC 1973.

15. A. Periakaruppan v. State of Tamil Nadu, AIR 1971 SC 2303.

16. Principal, Guntur Medical College v. Mohan Rao, AIR 1976 SC 1904.

14. In all cases of judicial intervention, assuming that it is right and justified, relief could never be given to those who came to the court in search of relief and to whom the court lent its helping hand. In Kerala, some years back, a common entrance test was held for admissions to the medical colleges and on the results being declared, numerous writ petitions came to be filed in the High Court of Kerala alleging nepotism and rampant malpractices.

The High Court of Kerala was convinced but could not give the relief to the petitioners except saying that it would give certain directions for voiding malpractices in future. The matter came up to the Supreme Court and the entire test, its results and admissions based thereon were set aside. Now those who were admitted and whose admissions were found to be invalid lost the year and those who would have been entitled to admission but did not get them could not be given benefit of one year. This is a national loss without corresponding national gain.

15. Even in the matter of disciplinary measures, the situation is far from satisfactory. Numerous cases have come to the court questioning the decision of the University Authorities imposing punishment. Two of them may be referred to. An examiner appointed by one University in Gujarat allegedly so manipulated the marks that the gold medal in the subject could be awarded and was in fact awarded to his own student. An inquiry revealed the misconduct and after giving the concerned professor an opportunity to explain his conduct, the University Authorities imposed punishment of withdrawal of his recognition as a University teacher for a period of a few years.

This decision was questioned by the professor in the High Court. The High Court desired the University Authorities to re-consider the quantum of punishment. The Executive Committee of the University, after considering the weighty observations of the High Court, reiterated its earlier conclusion. The High Court, in exercise of its extraordinary jurisdiction under Article 226, interfered with the punishment leaving open an unanswered question whether the High Court in exercise of its extraordinary jurisdiction can tinker with the quantum of punishment imposed by a body like the University.

The Aligarh Muslim University expelled about 13 students for a period varying from five years to the rest of the academic session, after a detailed enquiry and notice. The charge was that the students on whom punishment was imposed and several others mobbed the lodge of the Vice-Chancellor, manhandled him and threatened him with his life. Some of the students from amongst the expelled students approached the High Court of Allahabad, a division bench of which after detailed analysis and examination of the points raised in the petition, dismissed the same. The petitioners before the High Court then approached the Supreme Court under Article 136. The court did not decide the appeal on merits but imposed a working solution which left both sides partly dissatisfied.1

1. Sarvesh Narain Misra v. Vice-Chancellor, A.M.U., AIR 1982 SC 843.

16. Occasionally, right to claim registration for postgraduate degree examination in the specialist branch of the post-graduate medical colleges is brought to the court. Experience shows that the Court would admit the matter and grant interim relief. The grant of interim relief would be more or less in terms of permitting the petitioner to attend classes. Now, it is well knows that in the specialist branch for post-graduate degree, the seats are very limited and they are directly linked to the available facilities. One more student participating in the courses imposes an additional burden on limited resources. In this fashion, such an outsider taking classes under the orders of the court would finish all the semesters. He is permitted to appear at the examination under the orders of the court. The feeling is that those who can afford to fight court cases can enjoy undeserved benefit of occupying a seat to which one is not entitled.

17. There are numerous other heads under which disputes involving university are brought to the court. They drag on for years. In fact, one Vice-Chancellor narrated an interesting anecdote. He said that he has taken disciplinary action against a professor and the matter is pending in the court with a stay order and it is likely to be continued till the term of office of the Vice-Chancellor expired. Thereafter, some injudicious compromise may be worked out. Is this a satisfactory situation?

18. University administration is a dynamic subject because of its philosophical and methodical implications. It is philosophical because it is a way of thinking about extremely complex systems such as management sciences and education.1 A sound, efficient and well-planned university administration programme is very necessary for a stable and meaningful higher education growth and development in the developing countries. Moreover, a systematic university administration programme will not only contribute to the best development of the higher educational system, but will also help the development of education as a whole with a strong filial generic relationship between higher education and general education.

University administration must cater to the supervision of performance programme of the professors, development of faculties of the students, prescribed admission standards, a continuous reform of curriculum so as to keep it up-to-date, updating the library and arranging workshops and seminars. This requires specialist knowledge. Disputes involving universities have, therefore, to be handled not by a purely legalistic approach but keeping in view the obligations of the universities to the society and to the nation. Therefore, both form the point of view of specialist approach in the matter of resolving disputes involving universities and decentralisation of administration of justice with a view to reducing the pressure on High Courts and the Supreme Court, it is time to devise a forum with all-India jurisdiction in which all disputes involving universities and its affiliated colleges may be brought for their resolution.

1. A.H. Mommadi University Administration in Developing Countries, p. 25.

19. The jurisdiction of such a centralised tribunal must be all enveloping. It must include disputes, controversies and causes involving universities, their financial autonomy, appointment of Vice-Chancellors, their administrative functions, their inter-relation with the State Governments, their inter-relation with affiliated colleges, admissions, disciplinary proceedings, et al.

20. The composition of such a tribunal can be tentatively considered. One-third members may come from the cadre of Vice-Chancellors and former Vice Chancellors, and the rest comprising of few legal academics, judges who have functioned in the High Courts, a few professors and retired officers who have worked in the Ministry of Education. It can sit in benches at various places. The jurisdiction of all courts including the High Courts to deal with disputes falling exclusively within the jurisdiction on such a tribunal must be ousted. Only an appeal to the Supreme Court of India under Article 136 can be preferred against any of the decisions of the tribunal.

21. The issues which would arise for consideration in this behalf may be briefly set out:-

(a) Should there be a central educational tribunal to deal with causes, controversies and disputes involving concerned Government, universities, professors in the universities and affiliated colleges and students, with comprehensive jurisdiction to deal with disputes involving the aforesaid parties?

(b) Would such a tribunal provide an all-India perspective to educational problems which today it sadly lacks in view of the fact that education has more or less remained a State subject even after the amendment of Entry 25 in the Concurrent List?

(c) What ought to be the composition of such a tribunal? Should it include educationists, Vice-Chancellor, present and former, Government servants who have dealt with problems of education, lawyers and judges who have worked at the High Court level and even social activists?

(d) Would it be conducive to improving administration of universities if the jurisdiction of the High Courts to deal with such disputes is abolished?

(e) Would decentralisation of administration of justice brought about by establishing such a tribunal achieve the desired result of expeditious disposal of such disputes so as not to render university administration stagnant?

(f) Would such a tribunal help in reducing the area of conflict between the State Government and the university in the matter of appointment of Vice-Chancellors, affiliation of colleges, internal autonomy and financial autonomy?

(g) Would such a tribunal help in introducing undisturbed atmosphere in universities for pursuit of excellence?

(h) Keeping in view the fact that all sorts of corrupt influences have reduced the credibility of examination system, would such a tribunal help in restoring credibility?

(i) Would the tribunal help in resolving disputes about admission to professional colleges which is a recurring phenomenon?

The Law Commission seeks the co-operation of university administrators, teachers, students, Indian Association of Universities and the University Grants Commission in this behalf and every suggestion will be highly appreciated.



Decentralisation of Administration of Justice - Disputes Involving Centres of Higher Education Back




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