ARTI SA-PRU

STATE OF JAMMU AND KASHMIR & OTHERS

February 27, 1981

[R.S. PATHAK AND 0. CHlNNAPPA REDDY, JJ.J

Admission to medical college-Government Notification No. 41-G.R of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward.for applying the pri11ciple nf"rectification of imbalance in different parts of the S1ate"-W/1ether the classification is wholly arbitrary a11d without any foundatio11 to sustain ir and conseque111/y the criteria adopted in grallfing admission to the M.B.B.S. course is discriminatory, unreasonable and void-When viva voce test lasts between two to four minutes, whether allotment of 30% of total marks is patently unreasonable and arbitrary-Whether accepting applications beyond the time prescribed on the [!round that qualifying examination in which the applicant appeared was held late and the results were announced after the date prescribed for submitting the applications, bad in law.

Regulationsframed by the Indian Medical Council under section 33 read with section T9A oft he I11dian Medical Council Act, 1956, whether Ito/ding viva voce examination and assigning 30% of the total marks in it is in violation of Article 31 of the Constitution-Whether the presence of a Government official 011 the Selection Committee in the viva vore test is obnoxious to law.

Selection of candidates to be admitted to M.B.B, S. course in the Medical College of the State of Jammu & Kashmir was made by a Selection Committee on the basis of (a) merit in qualifyin.g examination (35_ marks) (b) an objective test (35 marks) and (c) a viva voce test (30 marks). The seats were distributed besides the examination base was determined by a distribution of the seats into three distinct divisions namely, (i) 60% on the basis of open merit ; (ii) 20% on the basis of reservation for scheduled castes and other reserved categories, one of which was broadly described as "socially and educationally backward classes" which included candidates from (a) areas adjoining actual line of control and

(b) areas known as "bad pockets", including Ladhak and (iii} 20% were reserved as seats to be.filled "on the basis of inter se merit to ensure rectification of imbalance in the admission for various parts of the State, if any, so as to give equitable and uniform treatment to those parts".

In Nishi Maghu v. State of Jammu and Kashmir, (1980) 3 S.C.R. 1253, the Supreme Court held that the selections made under the third category were invalid, inasmuch as the classification made for rectification of regional imbalance without identifying the areas suffering 'from imbalance was vague.

The Stale Government, therefore, published Notification No. 41 G.R. of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward for applying the principle of "rectification of imbalance in different parts of the States" and reduced the distribution of seats in the Medical Colleges of the State under this category from 18 to 17% under this category. This order is challenged by the petitioner, an unsuccessful candidate in the selection made for admission to M.B.B.S. course.for the year 1980-81.

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ART! SAPRU V. J. AND K. 35

Allowing the petitions, the Court

HELD: I. The classification attempted by the State Government by its order dated 24th September, 1980 suffers from tbe vice of arbitrariness and is, therefore, invalid. There was no intelligible data before the Court for sustaining the classification. No doubt the State Government had acted in its own wisdom, but the material to which that wisdom was applied was not disclosed at all. The fact by itself that some hundreds of villages had been brought within the classification is of no assistance whatever. That a comprehensive understanding of regional imbalances from the Anand Committee report and the Sikri Commission report had not been possible yet affords no justification for an arbitrary classification.

The State failed to bring the case within Article 15(4) of the Constitution.

[39 G; 40 DJ

State of U.P. v. Pradip Tandon, [1975] 2 S.C.R. 761 applied.

2 : I. There is need to revise the marks ratio for the viva voce test because of the very real risk future selections would face on this score. The Government would also do well to ensure that Selection Committees take care to devote sufficient time to the oral interview of individual candidates having regard to the several relevant considerations which must enter into their judgment respecting each candidate. [ 41 D & G]


2: 2. The selection cannot be said to _be vitiated on the ground that one of the members, Shri Kunda!, left after some time and therefore the composition of the Interview Cgmmittee varied from time to time, since three out of four members remained present throughout the proceedings and a proportionately small number only of the candidates was interviewed when Shri Kunda! was present. [ 42 D-E]

2 : 3. The appointment of a Government official as a member of the Selection Committee is not obnoxious to the law.

There is no principle of law disqualifying a Government official from participating on the Interview Committee merely because he is a Government official. It cannot be said that a Government official cannot be a person of high integrity, calibre and qualifications. The constitution of a Committee lies in the wisdom of the State Government and it is expected men suitably qualified in every respect will be appointed to discharge the functions of the Committee. So long as the . State Government acts boQa fide it cannot be said that the presence of a Government official on the Selection Committee vitiates its constitution. [44H, 45 A-Bl

2 : 4. Selection of a number of candidates, in the present -case, cannot be said to have been made because of favouritism on account of relationship or friendship with members of the Selection Committee or because they were related

to important and influential persons in the State. Besides being sketchy and extremely vague, such allegations have been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to H reply to them. [ 42 F]

SUPREME COURT ~J; JPORTS

[198!] 3 S.C.R.

3. The grant of admission to respondents Nos. 7 to 12, in the instant case is in order, inasmuch as the relevant qualifying examination was held ]ate and th~

annoncement of. the results was delayed. The State Government correctly permitted the candidature of these applicants to be considered for inclusion in a common list drawn up to cover canidates for admission to either of the Government Medical Colleges, at Srinagar and at Jammu. Even according to petitioner those respondents have an excellent record and if they had applied in time for admission in the Government College at Srinagar they would certainly have been'admitted on the basis of their meri.t. [42G-H]

' 4.

A competitive entrance examinat, ion is permissible in law in addition to the qualifying examination. Jn regard to the sufficiency of the objectiw test, the absence of a prescribed formal curriculum does not vitiate the objective test.

[44 F]

5. A reading of the regulations framed by the Indian Medical Council under section 33 read with section 19A of the Indian Medical Council Act, 1956 makes it clear that the reservation permissible need not necessarily be confined to scheduled castes and scheduled tribes. [44 .E]

ORIGINAL JURISDICTION: Writ Petition Nos. 5600, 5601, 5615, 5689-5697 and 6283-6307/1980.

(Under Article 32 of the Constitµtion)

Soli J. Sorabjee, O.N. Tikk~, ·.E.C. Aggarwala, M.L. Bhatt, R.

Satish, and V.K. Pandita for the Petitioners in W.Ps. 5600-01,5615& 5689-97/80. ' '

M. K. Ramamurthy, Miss R. Vaigai, Joginder Singh and J.

Ramamurty for the Petitioners in WPs. 6283-6307/80.

S.N. Kacker and A/taf' Ahmed for the Respondents in all the l Writ Petitions.

The Judgment of the Court was delivered by

PATHAK J.

The petitioner challenges the admission of a number of candidates to the M.B.B.S. course in the Government Medical College Srinagar for the session I 980-81.

The petitioner, who had also applied for admission, was denied it.

She contends that the criteria adopted in granting admission is discriminatory, unreasonable and void.

The Principal, Government Medical College, Srinagar invited applications by 3rd April, 1980 for admission to the M.B.B.S. cours~ for the session 1980-81, and the notice specified the qualifying examinations of the Board of Secondary Education, Kashmir, or any other equivalent Board or University which constituted the basis of eligibility.

The manner and procedure governing the eligibility for admission had been set forth in a Government order

ARTI SAPRU v. J. AND K. (Pathak, J.) 37

of 3rd April, 1978, which laid down that a Selection Committee constituted by the Government would determine the inter se merit of eligible candidates on the basis of an interview for judging their

(a) physical fitness, (b) personality, (c) aptitude, (d) general knowledge and (e) general intelligence. This Government order was modified by a subsequent Government order dated 23rd June, 1980 and in the result eligible candidates were now required to appear not only in the viva voce examination but also in an objective test. These two tests along with merit in the qualifying examination of the Board or University constituted the three elements which together combined to form a basis for Selection. The qualifying exammation carried 35 marks, the objective test was allotted 35 marks and the viva voce examination was assigned 30 marks.

Besides the examination base constituted by the aforesaid three criteria, the selection was also determined by a distribution of the seats into three distinct divisions.

Of the total number of seats 50% were earmarked for being filled on the basis of open merit, 25%were reserved for candidates from Scheduled Castes and other reserved categories, one of which was broadly described as "socially and educationlly backward classes'' and included candidates from (a) areas adjoining actual line of control, and (b) area known as bad pockets including Ladhak.

After selection had been made as above the remaining 25% of the seats were to be filled "on the basis of inter se merit to ensure rectification of imbalance in the admission for the State, if any, so as to give equitable and uniform treatment to those parts". It was also recited that in case there was no "visible imbalance", the seats earmarked under that head were to be distributed among further "open merit" candidates.

On 27th June, 1974, the percentage of seats reserved for the different categories was refixed, so that 60% of the seats were now earmarked for admission on the basis of "open merit", 20% for distribution among candidates from the Scheduled Castes and other reserved categories including socially and educationally backward classes, and the remaining 20% of the seats were earmarked for "ensuring rectification of imbalances". Still another order dated 21st April, 1976 reduced the reservation for removing regional imbalances from 20% to 18%.

The selection of candidates for admission to the Government Medical College, Jammu for the academic year 1979-80 was challenged in this Court in Nishi Maghu v. State of Jammu and Kashmir(1)


and the Court held that "the classification made for rectification of regional imbalance without identifying the areas suffering from imbalance was vague and the selections made under that head were accordingly invalid'". The Court directed that the seats reserved under that head should be added to the quota of seats earmarked for selection on the basis of merit and filled accordingly.

Thereafter, in an attempt to remove the deficiency pointed out by this Court in Nishi Maghu (supra), the State Government published Notification No. 41-GR of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward for applying the principle of "rectification of imbalance in different parts of the State". A long schedule (covering over 60 pages of the record before us) was annexed and listed some hundreds of villages.

About the same. time, a Government order was issued fixing 17% of the seats in the M.B.B.S course of the medical colleges of D the State as the admission quota for the purpose of "rectification of

imbalances."

From 14th to 17th July, 1980, as many as 660 candidates were interviewed by a Committee at Srinagar by way of viva voce examination. On 21st July, 1980 the State Government issued a directive that a total list of J 25 candidates be prepared against all the seats of the two Government Medical Colleges, at Srinagar and at Jammu.

A Selection List was finalised taking into account the reservations made for various categories and classes by the different Government orders, and was published on 29th September, 1980, and the names of 75 candidates were announced for admission to the M.B.B.S. course to the Govenment Medical College, Srinagar.

The principal contention of Mr. Soli Sorabjee appearing for the petitioner in Writ Petition No. 5600 of J 980, is that not with standing this brave attempt to meet the constitutional requirement indicated in Nishi Maghu (supra) the State Government has failed in its purpose.

Tt is urged that there was no material before the State Government affording a pertinent basis for classifying these villages.

It is pointed out that almost whole tehsils of different districts have been identified as socially and educationally backward, 'bad pockets' and areas belonging to the line of actual control have been included and in the result with more than 95 per cent of the villages classified as socially and educationally backward, the inference must be that almost all

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of Kashmir Division calls for a reservation quota. It is asserted that a portion of Srinagar city, which includes Sangin Darwaza and Bhagwanpure, has also been identified as socially and educationally backward. To that class have also been added towns where Notified Area Committees exist. The submission is that the classification is wholly arbitrary and without any foundation to sustain it.

The

mere circumstance, it is urged, that the classification is defined on

B the basis of villages without anything more demonstrates its unconstitutional character.

The case of the State Government is that the classification fully satisfies the criterion "social and educational backwardness". In proof of the assertion it is pointed out that the present selection shows that candidates from areas not included in this classified category have taken 66 seats out of 75 on the basis of open merit.

It is conceded that a large number of villages have been included in the classification, but it is pointed out that the greater bulk of the population resides in the two cities of Srinagar and Jammu alone and would be equivalent to the population of hundreds of villages taken together. The classification is supported by the consideration that in the nature of things the in habitants of the rural areas are socially. and educationally backward.

It is urged that merely because some of the villages are administered by Notified Area Committees does not remove the stigma of backwardness. It is admitted that two reports, popularly described as the Anand Committee report and the Sikri Commission report, are under consideration by the Government but, it is said, as a comprehensive appreciation of the situation disclosed by the two reports of all the aspects of social and educational backwardness in the State has not been made yet, the Government has proceeded "in its own wisdom" to identify the areas suffering from regional imbalance.

We are of opinion that the classification attempted by the State Government by its order dated 24th September, 1980 suffers from the vice of arbitrariness and must be declared invalid. There is no intelligible data before us for sustaining the classification. No doubt the State Government has acted in its own wisdom, but the material to which that wisdom was applied has not been disclosed at all. The fact by itself that some hundreds of villages have been brought within the classification is of no assistance whatever.

Over six years ago, this Court in State of U.P. v. Pradip Tandon(1) ruled that in the matter of admission of students to medical colleges

(1) [ 1975] 2 S.C.R. 761.

a reservation in favour of candidates on the ground that they hailed from rural areas was unconstitutional.

The Court repelled the argument that it was necessary to reserve seats for candidates from rural areas because they were handicapped in the matter of education. It also rejected the plea that as the number of marks obtained by candidates from rural areas in the qualifying test were much lower than the marks obtained by the general candidates that was an indication of the farmer's educational backwardness. Ray, C.J., speaking for the Court, observed :

"The reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens. This reservation appears to be made for the majority population of the State 80 per cent of the population of the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas."

The criterion adopted by the State Government cannot be accepted unless supported by other relevant considerations. That a comprehensive understanding of regional imbalances from the Anand Committee report and the Sikri Commission report has not been possible yet affords no justification for an arbitrary classification.

We are not satisfied that the State Government has succeeded in bringing the case within Article 15 (4) of the Constitution. The material before us is woeful, ly inadequate and fails to sufficiently support the validity of the classification.

We are of opinion that the order of the State Government dated 24th September, 1980 must be declared invalid.

The next contention on behalf of the petitioner is that the allocation to the viva voce test of 30 per cent of the total marks is patently unreasonable and arbitrary. Our attention has been drawn to the observations of this Court in Ajay Hasia v. Khalid Mujrb(1) where an allocation of more than 15 per cent of the total marks for the oral interview was regarded as arbitrary and unreasonable and liable to be struck down as constitutionally invalid. It seems to us that the State Government would have done well to apply its mind seriously to the evaluation ratio between the three criteria adopted for admission.

When the Government order of 23 rd June, 1980 dividing the total marks between the three criteria was issued, there


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was ample evidence of the principle and practice adopted by examining bodies of high repute and status in the country. The marks ratio adpoted by the Union Public Service Commission provided wise example. Besides, almost 10 years before this Court in A. Peeriakaruppan, etc. v. State of Tamil Nadu & Ors.(1) had expressed its disapproval of the ear-marking of 75 marks for the interview test out of 275 marks. And before the selection procees was taken in the present case this Court had already observed in Nishi M:ighu

(supra) that reserving 50 marks for the interview out of 'a total of 150 marks appeared excessive, especially when the time spent was not more than 4 minutes on each candidate. This precisely is what happened here, because on the case of the State Government itself the average time devoted to the oral interview of each candidate was 4 minutes. However, we are reluctant to interfere on this ground because a clear pronouncement that an allocation of more than 15%

of the total marks to the viva voce examination would result in constitutional invalidity has been made only recently, in Ajay Rasia (supra), by this Court and that was after the selection process in the present case had already been taken.

We would prefer to impress D on the State Government tliat there is need to revise the marks ratio because of the very real risk future selections will face on this score.

The next contention for the petitioner is that having regard to the number of candidates interviewed and the time applied to conducting the interview no more than two minutes or so could have been given on the average to the oral interview of each candidate, a period demonstrating, in the submission of learned counsel, that the selection process was conducted in a perfunctory manner and there was no real application of the mind to the.selection of candidates.

The State Government maintains that the time spent was four minutes per candidate'.

We have given the matter our anxious consideration, and we are unable to hold.that there is adequate material for striking down the selection on this ground.

But_ here again the State Government would do well to note the observations made by this Court in Ajay Rasia (supra) in this matter, and to ensure that Selection Committees take care to devote sufficient time to the oral interview. of individual candidates having regard to the several relavant considerations which must enter into their judgment respecting each candidate.

(J) (1971] 2 S.C.R. 430.

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We are also told by the petitioner that the composition of the Interview Committee varied from time to time during the interviews.

Therefore, it is said, the selection stands vitiated. It is alleged that while one member, Shri N.S. Pathania, Principal, Medical College, Jammu joined the Committee some time after the interviews had begun, another member, Shri B.R. Kunda!, Deputy Commissioner, Udhampur was present during a part of the proceedings only and left thereafter. In regard to Shri N.S. Pathania, it is not possible to say that his joining with a slight delay has materially affected the validity of the proceedings. And as regards Shri Kunda!, it appears that he was present on the I 4th July, I 980 and according to the petitioner, left on the morning of the next day. It will be noticed that all the members of the Committee except Shri Kunda! were persons closely associated with medical educatfon. Shri B.R. Kunda! was Deputy Commissioner of Udhampur. We also do not know what was the mode , of functioning employed by the Committee, whether it was such as to invalidate the proceedings if one of the members ex necessitas, was unable to participate throughout in them. The respondents maintain that at least three out of four members remain ed present throughout the proceedings.

And according to the petitioner, a proportionately small number only of the candidates was interviewed when Shri Kunda! was present. In all the circumstances, we find it difficult to say that Shri Kundal's absence from the Committee vitiated its proceedings.

Shri Soli Sorabjee then contends that a number of candidates were selected for admission because of favouritism on account of Y relationship or friendship with members of the Selection Committee er because they were related to important and influential persons in the State. The allegations have for the most part been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to reply to them. Such

allegations on this point as are contained in the writ petition are extremely vague and sketchy, and can form no basis for a finding in favour of the petitioner.

There is one more contention, and that is that the respondents Nos. 7 to 12 did not apply for admission to the Principal, Government Medical College, Srinagar, and even if they are found to have done so their applications must have been submitted beyond the time prescribed as the qualifying examination in which they appeared was held late and the results were announced after the date prescribed for submitting the applications at Srinagar had expired. lt

ARTI SAPRU 'v. J. AND K. (Pathak, J.) 43

appears from the record before us that inasmuch as the relevant A examination was held late and the announcement of the results was delayed the State Government permitted the candidature of these applicants to be considered for inclusion in a common list drawn up to cover candidates for admission to either of the Government Medical Colleges, at Srinagar and at Jammu. Besides, it is conceded

by the petitioner that those respondents have an excellent record B and if they had applied in time for admission to the Government Medical College, Srinagar, they would certainly have been admitteti on the basis of their merit. In the circumstances, we do not propose to interfere with the grant of admission to those respondents.

Accordingly, the only relief which, in our judgment, should be awarded to the petitioner is the quashing of admissions granted irt the quota reserved for rectifying regional imbalances. In consequence, those seats must be filled up on the basis of open merit.

Writ Petitions Nos. 560 I of 1980, 5615 and 5689 to 5697 of

1980, which proceed on the same lines as Writ Petition No. 5600 of D 1980, must be disposed of in like manner.

The remaining cases, Writ Petitions Nos. 6283 to 6307 of 1980, fall in a separate category. The petitioners here challenge the selection of candidates for admission to the M B.B.S. course in the Government Medical College, Jammu for the year 1980-81; and complain of the denial of admission to them. The facts on which. these writ petitions have been brought and the grounds on which they claim relief are substantially the same as in Writ Petition .No. 5600

of 1980. Indeed, Shri M.K. Ramamurthi, learned counsel for the petitioners, states at the outset that he adopts the submissions urged in that case against the validity of the admissions granted for the purpose of rectification of regional imbalances, in regard to the invalidity alleged by the assigning of 30% marks to the viva voce examination and also in regard to the legal effect on the interview proceedings of the absence of some members of the Selection Committee during part of the proceedings. These pofots have bee11 considered and disposed of by us in that writ petition, and those findings are of equal validity in these writ petitions also.

Besides this, learned counsel for the petitioners raises other contentions.

He urges that the selections made are not in accordance with the Regulations framed by the Indian Medical Council under

s. 33 read with s .. 19A, Indian Medical Council Act, 1956 and H therefore violate the fundamental right of the petitioner guaranteed

under Article 15 of the Constitution.

It is contended that the Regulations are law and are enforceable in a court, and that if they are to prevail the only rese1vation permissible is that in favour of Scheduled Castes and Scheduled Tribes.

According to the Regulations, it is asserted, a Selection Committee can either take into consideration the marks obtained in a qualifyin.g examination or in the competitive test.

Nor, it is said, can a viV1 voce examination be permitted as a vehicle for selection. The validity of holdin.g a separate objective test is also assailed as also of assign.ing 35% of the total marks to it.

The merit test is challenged on the ground that no curricula have been prescribed in relation thereto

Objection to the objective test and the viva voce examination is based on the ground that they fall outside the scheme envisaged by the Regulations made by the Indian Medical Council for admission to the M.B.B.S. course. The respondents, however, question the validity of the Regulations.

We are then referred by the petitioners to clauses ( j) and (I) of s. 33, Indian Medical Council Act, 1956 in support of the contention that the power of the Council to make regulations extends to making regulations prescribing the examinations and tests for admission. It seems to us prima facie that those provisions do not authorise the Council to do so.

But we refrain from expressing any final opinion in the matter as the Council is not a party before us.

We are also not satisfied that the reservations permissible must be confined to Scheduled Castes and Scheduled Tribes. Nor do we find sufficient basis in the submission that there is arbitrariness in providing for 35 marks to a separate objective test in addition to the 35 marks earmarked for the qualifying examination. The grounds taken before us do not justify the conclusion that a competitive entrance examination is not permissible in law in addition to the qualifying examination. In regard to the sufficiency of the objective test, we are not satisfied that the absence of a prescribed formal curriculum vitiates the objective test.

The next contention on behalf of the petitioners is that the presence of a Government official on the Selection Committee vitiates its constitution. It is stressed that the viva voce test to be acceptable should be conducted by persons who are men of high integrity, calibre and qualifications. There is no principle of law, so far as we know, disqualifying a Government official from participating on the Interview Committee merely because he is a Government official.

Nor do we believe that a Government official cannot be a person of high integrity, calibre and qualifications.

The constitution of a

. .

Committee lies in the wisdom of the State Government and it is expected that men suitably qualified in every respect will be appointed to discharge the functions of the Committee. So long as the State Government acts bona fide and on the basis of relevant considerations it is not possible to say that the appointment of a Government official is obnoxious to the law.

In the result, the writ pelitions are allowed insofar that the selection of candidates for admission to the M.B.B.S. course of the Government Medical Colleges at Srinagar and at Jammu for the year 1980-81 mde on the basis of rectifying regional imbalances is quashed and the respondents are directed to fill up those seats on the basis of open merit. The candidates who will be displaced in consequence have already completed a few months of study and in order to avoid serious prejudice and detriment to their careers it is hoped that the State Government will deal sympathetically with their cases so that while effect is given to the judgment of this Court the rules may be suitably relaxed, if possible by a temporary increase in the number of seats, in order to accommodate the displaced can didates.

In the circumstances, there is no order as to costs.

S.R.

Petitions allowed .