Case: Nishi Maghu Etc Vs. State of Jammu and Kashmir and Others

The selection of candidates admitted to the Government Medical College, Jammu, for the academic year 1979-80 is challenged in these petitions under Article 32 of the Constitution by some of the candidates who were not selected. By notification published in the Jammu and Kashmir Government Gazette on June 21, 1979 applications were invited for admission to the M.B.B.S. course in the aforesaid college. Only those candidates who had passed the Pre-Medical or Inter-Science or First Year T.D.C. (Medical Group) examination from the University of Jammu or an y other equivalent examination and had secured not less than 50 per cent marks in science subjects in aggregate (theory and practical) were eligible to apply for admission; however, for scheduled castes, scheduled tribes, Bakarwal and Gujjar candidates and candidates from Ladakh district and Bad Pockets the qualifying marks was 45 per cent. Candidates who had been selected or nominated by the Government of Jammu and Kashmir or had been already selected by a selection commit tee constituted by the Government for any training course in or outside the State were not eligible to apply or to appear for interview for admission to this college. The notification added: "Comparative merit of the candidates will be adjudged with respect to physical fitness, aptitude, personality, general knowledge and general intelligence in the interview, for which marks will be awarded according to the performance of the candidates". It was further provided that the selection would be made in accordance with the manner and procedure laid down in the various orders issued by the Government from time to time. The total number of seats filled by selection in this college for the year 1979-80 was 52. The candidates numbered 526, out of which 473 actually appeared for interview. In addition 10 seats were filled by candidates nominated by the Government. It appears from the supplementary affidavit filed on behalf of the State of Jammu and Kashmir that the nominations had to be made only from two sources: wards of non-resident Defence personnel, and students from othere we proceed to consider the grounds on which the selection is challenged, it will be necessary to refer to the contents of the orders issued by the Government of Jammu and Kashmir to regulate the selection. The earliest order which is relevant in this context was made on July 9, 1973. This concerns admission to technical institutions which include medical colleges . The order starts by saying that "the man power requirements of various parts of the State have not received uniform and equal treatment with the result that there has been imbalance in the development of human resources in these parts", and "since the admissions to technical institutions also lead to the development of human resources", it had therefore "become necessary to provide equal opportunities to the permanent resident candidates of all parts of the State and all sections of society". The order then lays down the following rules for admission until further orders, it is said, with the aforesaid object in view:(1) 50 per cent of the seats "should be straightaway earmark ed for being filled upon the basis of open merit in accordance with the criteria to be adopted by the concerned selection committee constituted by the Government in this behalf"(2) Of the remaining seats, 25 per cent is reserved for candidates falling under the categories specified below to the extent indicated against each, to be filled on the basis of merit in each category:(a) Scheduled castes 8%(b) Children of freedom fighters 7%(c) Children of permanent residentDefence personnel 3%(d) Candidates belonging to thefollowing socially and educationallybackward classes as recommended bythe Backward Classes Committee;(i) Area s adjoining actual lineof control 3%(ii) Areas known as bad pocketsincluding Ladakh. 3%(iii) Social castes 1%It is further provided in the order that after selection as indicated in clauses (1) and (2) above had been made, the remaining 25 per cent of the seats "should be filled on the basis of inter-se merit to ensure rectification of imbalance in the admissions for various parts of the State, if any, so as to give equitable and uniform treatment to those parts". It is added that in case there is no "visible imbalance" or where no candidates are available under a particular category mentioned in clause 2 above the seats earmarked under these two heads "shall be added to the percentage under 1 above". The selection committee while making selections is required by the order to indicate separately the category under which a candidate falls. There is an annexure to the order containing instructions concerning the "identifications of the persons claiming benefit" under clause 2 of the order and the "procedure connected therewith". The instructions define t he different categories mentioned in clause (2). For the present purpose it will be necessary to refer to the definitions of "Areas adjoining actual line of control", "Bad pockets", and "Social castes""Areas adjoining actual line of control -Candidates permanently residing in any village of the State specified in Appendix I to these instructions.""Bad pockets-candidates permanently residing in any village of the State specified in Appendix II to the se instructions.""Social castes-candidates of the State belonging to any of the castes indicated in Appendix III to these instructions."The instructions also provide for the issue of a certificate by the concerned authority stating that a candidate falls under any of the categoriesOn June 27, 1974 another order was issued refixing the percentage of seats reserved for the different categories "with a view to affording more accommodation for open merit".The following changes were made to the earlier order:(1) Instead of 50 per cent, 60 per cent of the seats is now earmarked for admission on the basis of "open merit"(2) Instead of 25 per cent, 20 per cent is earmarked for admission under the categories mentioned in clause 2 of the order dated July 9, 1973. The percentage of seats allotted for children of freedom fighters is reduced fro m 7 per cent to 2 per cent. Under the category "socially and educationally backward classes" the earlier order had reserved 3 per cent of the seats for candidates belonging to areas known as bad pockets including Ladakh, by this order Ladakh is excluded from that category reducing the percentage of seats from 3 per cent to 1 per cent and a separate category has been made for candidates from the Ladakh district allotting 2 per cent of the seats to them(3) Whereas in the earlier order 25 per cent of the seats was earmarked to ensure rectification of imbalance, here the figure is reduced to 20 per centAbout two years later, on April 21, 1976 another order was issued reducing the existing reservation of 20 per cent for meeting regional imbalance to 18 per cent and allotting "the resultant 2% vacancies" for candidates "possessing outstanding proficiency in sports"It is necessary to refer to two more orders. An order made on April 16, 1976 provides that 10 seats at the Government Medical College, Jammu, shall be earmarked for girl students "subject to enough girl students being found otherwise suitable". The order also lays down the procedure to be followed by the selection committee in selecting candidates for admission to technical training courses. By this order, comparative performance of the candidates at an interview to be conducted for the purpose by the selection committee is made the only basis of selection. The order adds that the marks obtain ed by a candidate in the qualifying university examination shall be taken into consideration only to determine the initial eligibility to compete for selection. This order was modified by a subsequent order issued on April 3, 1978. In stead of the marks obtained by a candidate in the qualifying university examination being treated as relevant only to determine eligibility, the subsequent order provides: "there will be 100 marks for academic merit which shall be allotted to each candidate in accordance with the percentage of marks secured by him/her in the basic qualifying examination or its equivalent". This order further provides that 50 marks will be allotted for interview, 10 marks for each of the five factors; physical fitness, personality, aptitude, general knowledge and general intelligence.

Reasoning:
The Wazir Committee in their rep ort mentioned 23 low social castes "as educationally and economically extremely backward" but 4 of them have been held by this Court in Parimoos case as having no basis for inclusion in the list. In appendix III 19 of these castes have been retained which were not disapproved in Parimoos case. Chapter XIII of the Wazir Committee report makes it clear that the classification is with reference to the nature of occupations which the people belonging to this category pursue. That being so we find no substance in the challenge that the classification offends Article 14 or Article 15 of the Constitution. Under this category only one candidate has been selected whose name, Edwin Khokkar, appears at serial No. 33 in the list of selected candidates annexed to the supplementary affidavit filed on behalf of the State of Jammu and Kashmir. An objection was raised against his selection that he being a Christian, as his name shows, could not belong to any of the castes mentioned in appendix III. But as the category is based on occupation and not on caste as such, the objection must be overruled.The classifications based on areas adjoining actual line of control and bad pockets are also challenged as violative of Article 14 of the Constitution. These are really backward areas and the residents of these areas are indisputably socially and educationally backward. Reservations made for candidates from such backward classes cannot be said to offend Article 14. In fact in Parimoos case the reservation made for residents of bad pockets which were identified in the report of the Wazir Committee, was accepted as valid. We therefore hold that the challenge to these two categories is not justifiedHowever the conclusion reached in Periakaruppans case on the point was: "While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re-examine the question, we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview............".Reserving 50 marks for interview out of a total of 150 (100 for written examination and 50 for interview) does seems excessive especially when the time spent was not more than 4 minutes on each candidate. It is difficult to see how it is possible within this short span of time to make a fair estimate of a candidates suitability on a consideration of the five specified factors which are not capable of easy determination, such as physical fitness, personality aptitude, general knowledge and general intelligence. It is also not clear how by merely looking at a candidate the selection committee could come to a conclusion about his or her physical fitness. The fact that the allotment of marks is in accordance with a policy decision may not conclude the matter in all circumstances; if that decision is found to be arbitrary and infringing Article 14 of the Constitution, it cannot claim immunity from challenge. When we say this we are not unmindful of the observations in Periakaruppans case quoted above, which were made in a somewhat similar but not altogether identical situation. It was also contended for the writ petitioners that reserving such high marks for interview leaves room for discrimination and manipulation. It has been held in Chitralekhas case that the fact that a system is capable of abuse is not a ground for quashing it. There is no reliable material before us to prove that there has been discrimination or manipulation of the interview marks in any of these cases. That being so, and considering the possible hardship, if the selections were now set aside, to the students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed two terms, we are not inclined to annul the entire selection, though allotment of 50 marks for interview in the circumstances stated above seem to us excessive. However, we expect the Government of Jammu and Kashmir to reconsider the matter in the light of what we have said above and, other things remaining the same, for future years to reduce the percentage of marks allotted for interview to a reasonable proportion of the total marks for the selectionl for the petitioners in Writ Petitions 1556-57 of 1979 sought to make a point that the regulations framed by the Indian Medical Council underthe Indian Medical Council Act, 1956 do not contemplate interview as a selection device regulating admission of students. The position is not so clear from the affidavit filed on behalf of the petitioners and in any case these regulations came into effect after the interviews were concluded in September 1979It is not necessary to examine the validity of the classification for the simple reason that this is not a category mentioned in any of the orders. That being so the selection of Shri Pathania must be set asideIt does not appear from the affidavits filed by the State of Jammu and Kashmir if the candidates admitted to the Government Medical College, Jammu, from outside the State are equal in number to those from the State who have been nominated for admission to outside institutions, and on what basis the nominations, whatever the number is, have been made. Anita Jains case makes it clear that the reciprocity policy, has not worked as it should have. Miss Jains counsel informed us that Miss Jains was willing to go to any State for admission to a medical college. Having nominated her for admission to an outside institution, we do not think the Government can avoid responsibility now. We therefore direct the first respondent, State of Jammu and Kashmir, to find her a seat in any medical college outside the State on the basis of reciprocity, unless as a result of our Judgment a few more seats are available in the medical college at Jammu and she is entitled to one of them on merit. For disposing of this writ petition it is not necessary to dilate on the problems that failure of the reciprocity policy in Miss Jains case brings to prominenceMr. Kacker, counsel for the State of Jammu and Kashmir, also did not try to justify Harish Kumars nomination. Harish Kumars admission to the medical college must therefore be set asideThat he is a student of the Regional Engineering College is not disputed, but it appears that he was not selected or nominated by the Government of Jammu and Kashmir for admission to the engineering college nor was he selected by any selection committee constituted by the Government of Jammu and Kashmir. Clearly, therefore, the bar in clause 17 or clause 18 cannot apply to his case, and it must be held that he was improperly refused admission to the Government Medical College, Jammu. Kulbhushan Gupta is entitled on merit to a seat in the CollegeWe are conscious that revision of the list of selected candidates at this stage will not only cause hardship to the students who will be excluded but some of those who might get into the list now are al so likely to experience certain difficulties. We are also conscious that the late revision of the list will create problems for the authorities but that, we are afraid, cannot be helped. We hope the authorities will deal sympathetically with the cases where it may be possible for them to render some help to the students in this situation and relax the rigour of the rules to the utmost permissible extent for the purpose.