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Report No. 123

2.9. A dispute with a different facet but inter-related with the question of reservation cropped up. The question was whether consistently with the constitutional values, admissions to medical colleges or any other institution of higher learning situate in a State can be confined to those who have their domicile within the State or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those who do not possess domicile or residential qualification within the State, irrespective of merit.

Condemning the wholesale reservation made by some of the State Governments on the basis of domicile or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the University or the State excluding all others not satisfying this requirement regardless of merit, the court held that preference to local residents may not be an anathema if the reservation is partial. Having regard to all circumstances, the court fixed an outer limit at 70%.1 It may be interesting to recall at this stage the debate on clause 5 of para 8 of justicable fundamental rights, as proposed by the Advisory Committee of the Constituent Assembly. It would appear that there was a germ of 'sons of the soil theory' in the debates themselves.

An amendment was move to clause 5 by Shri Mahavir Tyagi which would have permitted the State Government to give preference over others to such citizens as are bona fide domicile residents of its own territory. He said that his real intention was that, as far as possible, the administration of a Province should be run by officers and employees who are residents of that Province; otherwise the residents of the Province shall not be able to enjoy self-Government.2 To some extent, this found an echo in the judgment of the court when it felt that it would not be constitutionally invalid to grant partial reservation to the tune of 70% in favour of those having domicile qualification.

1. Dr. Pradeep fain v. Union of India, AIR 1984 SC 1420.

2. CAD, Vol. III, p. 448.

2.10. Even after this herculean effort by the court to find a workable norm and viable solution on the question of preference in admissions so as to avoid future disputes, the exercise has either proved futile or is still open ended. After upholding reservation to the tune of 70%, the court thereafter gave a direction that an all-India entrance examination be held to fill in 30% of the non-reserved seats for MBBS course and 50% open seats for post-graduate courses. Either the Indian Medical Council or the Central Government were directed to hold a single all-India based examination common to all medical colleges with centres in different States.

Further, direction was given that admission must be granted to various medical colleges in the country on the basis of comparative evaluation of marks obtained at such examination having regard to preference expressed by students for any particular State or university and speciality or specialities in case of post-graduate courses. These directions were given in the year 1984. Further directions were given on May 1, 1985.1 A direction was given that the judgment must be implemented from the academic years 1985-86. It appears that the Indian Medical Council and the Central Government failed to take any steps to implement the judgment.

A direction was given to the Indian Medical Council to come forward with a positive scheme for holding all-India entrance examination for regulating admissions to the minimum 30% of non-reserved seats for MBBS course and 50% for the post-graduate course. Difficulties were experienced in implementing the directions and the matter was again brought before the court.2 The court gave further detailed directions as per order dated 21st July, 1986. To conclude this point briefly, the scheme has still not been implemented.

1. Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, 1985 (3) SCR 22.

2. Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, AIR 1986 SC 1877.

2.11. One can confidently conclude how the pendulum is moving backward and forward keeping those affected interests in a confused State which would necessarily encourage disputes coming to courts. What havoc such disputes may cause may be illustrated by two cases. Admissions to medical colleges in the State of Kerala were decided on the merits acquired at a common test. For the academic years 1981-82, a test was held and admissions were given on the merits acquired at that test. This came to be challenged in Kerala High Court and the method of holding the test and assigning merit revealed numerous infirmities. The Kerala High Court gave certain guidelines in this behalf.

The matter landed in the Supreme Court,1 which suggested a formula in this behalf which, amongst others, provided that 50% of the examiners shall be from outside the State. The result of the entrance examination on the basis of centralised evaluation will be declared by a certain date and admissions will be granted on the basis of such result subject, of course, to the reservations already made. This approach reveals that the local examiners could not be fully trusted. The charge, therefore, of unfair practice in evaluating examination results was impliedly accepted. The order of the court was pronounced on January 28, 1982. The test was to be held on 27th and 28th February, 1982.

The result of the test was to be announced on or before 2nd March, 1982. Admissions were then to follow according to the merits keeping in view the reservations. The net result was that the first two semesters of 1981-82 were not available to any student. The students lost one year. The 'nation was denied services of incoming doctors by one year. The university lost credibility and fees. These are ascertainable losses. The second instance is still more glaring. Admissions to P.T.C. course in Gujarat by those who failed to secure the same for the years 1980-81 were challenged in the High Court of Gujarat. Those unsuccessful in obtaining admission were the petitioners. State of Gujarat was the respondent.

Those who had secured admission on invalid, illegitimate and illegal grounds were not impleaded as respondents. The High Court struck down the admissions as being invalid and illegal. Those who had secured admissions filed a separate bunch of petitions questioning that they had been denied the opportunity of being heard as they were not joined as respondents in the earlier petition and they were directly and adversely affected by tile decision of the court. They were heard and their petitions were dismissed and they came over to the Supreme court.2

By that time, one full year had expired and the examination at the end of first year of the two years' P.T.C. course was due. Under interim orders of the court, they were allowed to appear at the examination. Ultimately, even though it was held that their admissions were invalid and illegal, nothing more could be done except saying that they may not be given preference for admission to second year course.

1. State of Kerala v. Kalaprakkal John Andrew, 1982 (1) SCALE 530.

2. Smita Jonbhai Master v. State of Gujarat, 1981 (4) SCC 542.

2.12. Digressing a little to draw attention to other set of disputes arising in the field of education, it may at once be stated that the disputes arose out of policy decisions taken by the Government or by the universities. In order to defeat the charge of arbitrariness in granting admissions, the authorities concerned with admissions will have to prescribe some objective standard applicable to all seeking admission. Those seeking admission must have opportunity to satisfy the standard and must have access to the system by which satisfaction of the standard is arrived at. When applicants seeking admission came from different universities, they cannot be merit listed by reference to their achievement at the qualifying examination held by each university.

A common test therefore had to be devised. In order to be more objective, it has to be a written test. Such a test has been prescribed for admission to various disciplines. Occasionally Government and sometimes universities added viva voce test and final merit list was prepared in accordance with total marks obtained at both the tests. Viva voce suffers from the vice of subjectivism and is open to the charge of nepotism and even indulgence. Indulgence manifests itself in myriad terms. To a candidate who is a favourite, very simple questions may be asked. Some marks are reserved for personality evaluation. What appeals to one may not appeal to another. Thus there is tremendous element of subjectivism in these matters.

The moment viva voce test was introduced, the same was challenged in courts. The Government of the State of Mysore prescribed that 25% of the maximum marks for the examination of the optional subjects taken into account for making the selection of candidates for admission to engineering and medical colleges shall be fixed as interview marks, simultaneously laying down the criterion for allotting marks in the interview. One of the contentions canvassed before the Supreme Court of India was that the system of selection by interview and viva voce examination is illegal inasmuch as it enabled the interviewers to act arbitrarily and to manipulate the results and, therefore, it contravenes Article 14 of the Constitution.

The contentions failed.1 The challenge later on took a different form. The bone of contention was the total number of marks reserved for interview-in other words, from no interview test to the assignment of the total number of marks at the interview test. The underlying apprehension throughout was the utter subjectivism of viva voce test. This was sought to be demonstrated by urging that if there are numerous candidates to be interviewed and hardly three minutes are assigned to each, what evaluation or assessment can be done passes comprehension. The State of Tamil Nadu had in the relevant year assigned 75 marks for interview test. An attempt was made to show that those who fared well at the written test went down in the viva voce test and vice versa.

Even though an apprehension was voiced that 75 marks allotted for interview are on the high side and it would be appropriate for the Government to re-examine the question, the court did not invalidate the selection on this ground.2 Every such observation went on further complicating the matter. Reiterating that the State has power to prescribe an interview test and observing that it cannot be regarded as so defective that selecting candidates for admission on the basis of oral interview in addition to written test must be regarded as arbitrary, the court did express an opinion that allocation of more than 15% of total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid.3

Repeating the earlier criticism that oral test is a farce, a new limb was added to the controversy by saying that the court would not be able to ascertain favouritism because what questions were asked and what answers were given are not recorded and, therefore, even though unfair advantage is given, the same escapes the scrutiny of the court.4 The State of Jammu and Kashmir was repeatedly dragged to the court year after year and almost every time the court interfered with the admissions granted by it. Therefore, for the academic years 1982-83, a direction was given that while deciding admissions to Regional Engineering College, the Committee must prepare questions in advance and put them in envelopes, keep a cassette recorder for preserving primary evidence of answers given and maintain other records.

Even then the admissions were questioned5 The Supreme Court called upon the State to produce cassettes recording answers and the questions kept ready in advance. The records were produced for the court's inspection. The court was satisfied that if questions are drawn up in advance and the candidate is asked to pick up the envelope, the charge of discriminatory and unfair treatment can be avoided. The record of the answers given in the voice of the candidate would put the matter beyond the pale of controversy. But how much time, money, energy and avoidable litigation are spent into these disputes can be gauged.

1. R. Chitralekha v. State of Madras, AIR 1964 SC 1823 (1831).

2. A. Periakaruppan v. State of Tamil Nadu, AIR 1971 SC 2303 (2307).

3. Ajay Hasia v. Khalid Mujid Sehravardi, 1981 (1) SCC 722 (746).

4. Nishi Maghu v. State of Jammu & Kashmir, 1984 SCR 95.

5. Kaushal Kumar Gupta v. State of Jammu & Kashmir, AIR 1984 SC 1056.

2.13. A different type of controversy altogether in the field of education arises while determining the adequacy of experience or qualification, wherever it is prescribed as an essential one. Two persons having post-graduate qualifications in the field of medicine were selected by the Public Service Commission of a State. Their selection was questioned on the ground that the post-doctoral experience in some foreign hospitals would not satisfy the prescribed requirement. The High Court, in a writ petition, quashed the selections.

The Supreme Court while restoring the selections observed that the court should keep in view the twilight zone of interference in appointment to posts requiring technical experience made consequent upon selection by Public Service Commission, aided by experts in the field, within the framework of regulations framed by the Medical Council of India. When, thus, a selection is made by the Commission aided and advised by experts in technical experience and high academic qualifications in the specialist field probing teaching/research experience in technical subjects, the court should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them.1

1. Dr. N.C. Gupta v. Dr. Arun Kumar Gupta, 1979 (2) SCC 339.

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