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Judgment
By medium of this writ petition, the selection of candidates made to MBBS/BDS courses in Medical colleges Srinagar/Jammu for the session
199091 has been challenged on various grounds enumerated therein.
In pursuance of Not infection No.2 of 1090 dated 3790 issued by the competent Authority Entrance examinations J&K, hereinafter referred to
as Auihwity the petitioner also appeared in the entrance examination. They expected to he invited for viva voce test as per the earlier procedure.
They were not however called for the same as if was abolished vide SRO No. 191 dated 561990. Under that SRO for the first time, weightage
was to be given to the marks obtained by the candidates in the qualifying examination.
On 2111990 the result of the selected candidates was issued by the Authority and the petitioners were not selected, ft is alleged in the petition
that the said part of the selection process based on giving of weightage to the qualifying examination and reserving 25 points for the same is illegal
and violutive of Art. 14 of the constitution of India. It is further alleged that the deviation made by the respondents from the earlier established
procedure is malafide and based on extraneous considerations. According to the petitioners the candidates throughout the state of J&K are not
subjected to uniform standard, in the matter of their qualifying examination. The academic session for the Kashmir province is different from the
academic session for Jammu province. During the relevant year the academic session for Kashmir province was October/November of the
succeeding year and for the Jammu Province it was March/April of the same year. As a result of that the students appearing in the same standard
of examination are subjected to different sets of questions. The standard of asking questions, the method and manner of evaluation of the answer
scripts, is different from one province to another. In that view of matter allegedly there are no comparable standards on the basis of which the
relevant merit of the standards could be judged.
It is further alleged in the petition that the notification regarding abolition of the viva voce test vide SRO No. 191 was issued on 561990 when
the candidates had already appeared in their qualifying examinations and the results too stood declared. They were not aware of the weightage to
be give for the qualifying examination when they had appeared in the examination and, therefore, it has seriously prejudiced their merit position.
In the objections/counter filed by the answering respondents, it is stated that the petitioners cannot challenge the selection process after having
appeared in the examination under that process. It is further stated that the petitioners are inferior in merit to be selected candidates and, therefore
they have no cause to agitate.
I have heard the learned counsel for the parties and have gone through the file thoroughly. I have also gone through the copy of the relevant
result gazette produced by Mr. Jalali. I have also considered the supplementary affidavits filed by the petitioners.
It may be stated at the very outset that Mr. Shah, learned counsel for the petitioners did not press this petition for four petitioners, namely Miss
RubanaAli, Miss Samia Mufti, Basharat Alam Shah and Mohd Ali Imtiaz, The writ petition is, therefore dismissed as not pressed so far as the said
petitions are concerned.
Now so far as the merits of this case are concerned, I think its fate mainly hinges on the validity or otherwise of the impugned weightage given to
the marks obtained in the qualifying examination by the candidates. Admittedly, all the petitioners have appeared in the open merit category. Their
positive case is that the weightage in question is not only illegal but based on malafide considerations as well. The SRO No. 191 providing for such
weightage, according to them, was brought into existence to help a particular class of candidates. It was brought into existence and remained in
force only for the relevant session of 199091 in which the petitioners had appeared in the examination. It was not in vogue before that and has
been abolished after that. It is submitted that but for the impugned weightage given for .the qualifying examination, the petitioners were entitled to
be selected. According to them in the entrance test they have obtained good position at least, better than some of the candidates selected by the
respondents.
From the perusal of the relevant result gazette produced by Mr. Jalali, it is manifest that PujaBhatia, Roll No.31426 has obtained 50.00 points in
the entrance test. Similarly vishal Rathore Roll No. 31707 has obtained 50.7 points, Fayak Shameem 49.64 points and Charu Jaundial 49.28
points. All of them have been selected though inferior in merit than the petitioner in the entrance test. They have obtained more points in the
qualifying examination and therefore got selected.
As against that one of the petitioners Bilqees Khalil has obtained 51.07 points in the entrance test. Similarly the petitioner Aqeel Hussain has
obtained 50 points and Miss Anjum Afshan 49.28 points. The rest of the petitioners have obtained less than 49 points, i.e. they are below the cut
off points and inferior in merits even to the last candidate selected by the respondents.
The cut off points for the last selected candidate in the entrance test in the open merit is 49.28 points. One of the selected candidates namely
Charu Jandial has obtained 49.28 points. No other candidates having obtained less than 49.28 points appears to have been selected in the open
merit category.
It would thus appear that the writ petitioners Bilqees Khalil and Aqel Hussain have obtained more points in entrance test than some of the
selected candidates as mentioned above. One of the writ petitioner's Anjum Afshan has obtained, if not more, but equal number of points, with
Charu Jandial, one of the selected candidates.
Mr. Shah has referred me to an order of this court dated 29891 passed in CMP Nos. 1615/91,1649/91,1617/91, and 1613/91 arising out of
writ petitions No. 702/91717/91703/91 and 701 /91 respectively. In that order it was held that the weightage given for qualifying examination was
illegal, as it offended Art. 14 of the constitution of India.
Similarly on the same basis, this court has granted provisional admission in the MBBS course to Miss Munima Habib Roll No. 33073, Miss
Bay Nair Bhat Roll No. 32968, Miss RootuAkhter Roll No. 33227 and Miss Samina Shafi Bhat Roll No. 33292 as also to Miss AneesFatima.
They had also obtained more points in the entrance test than many of the selected candidates, as indicated in the relevant orders.
Mr. Jalali, has on the other hand referred me to another order of this court dated 17292 passed in CMP Nos. 2481/91 and 5261/91 arising
respectively out of writ petition Nos. 1082/91 and 2100/91 where under provisional admission was declined to be granted to the concerned.
The perusal of aforesaid order shows that its application was confined to provisional admission only reserving determination of legality or
otherwise of the impugned weightage in the main writ petitions.
Now as regards the legality or otherwise of the impugned weightage, the learned counsel for the petitioner has referred me to (1985) 3SCC22,
wherein some important guidelines have been given in this behalf. As a matter of fact this court has relied upon the said authority to grant
provisional admission to some candidates as mentioned above.
First of all I would like to reproduce below for the sake of facility one of the observations made by their lordships, in the said judgment.
Since it was made clear as far back as July 26, 1984 that our judgment dated June 22,1984 shall be given effect from the academic year 198586
we should have thought that the Govt. of India and the Indian Medical counsel would make the necessary arrangements for holding an all India
entrance examination well in time for admission to the MDBS course for the academic year 198586 so far as the Minimum 30% open seats not
reserved on the basis of residence requirement or institutional preference (hereinafter referred to as the minimum 30% nonreserved seats) were
concerned. But it seems that so far nothing has been done either by the Govt. of India or the Indian Medical council and the fate of the students
seeking admissions to the MBBS course for the academic year 198586, is in a state of total uncertainty. The state Govt. have also been equally
guilty of indifference and inaction in not taking any steps for the purpose of holding an entrance examination which would test the relative merits of
the students seeking admission to the minimum 30% nonreserved seats in the MBBS course in the medical colleges. Some of the state
Governments and universities, we are informed, are proposing to fill up the minimum 30% of reserved seats for the MBBS course on the basis of
the marks obtained by the students at the qualifying examination held by different states and/or universities totally ignoring the fact that the standard
of Judging of these different qualifying examinations cannot, by its very nature be uniform. Some universities may be very liberal in their marking
while some others may be strict. There would be no comparable standards on the basis of which the relative merits of the students can be judged.
It would be wholly unjust to grant admissions to students by assessing their relative merits with reference to the marks obtained by them, not at the
same qualifying examination where standard of judging would be reasonably uniform but at different qualifying examinations held by different state
Governments or universities where the standard of judging would necessarily vary and not be the same. That would indeed be blatantly vioiative of
the concept of equality enshrined in Article 14 of the constitution. We must therefore, make it clear that no State Govt. or university or medical
college shall grant admission to students to fill the minimum 30% nonreserved seats for the MBBS course, on the basis of comparison of the marks
obtained by them at different qualifying examinations. The admission must be based on evaluation of relative merits through an entrance
examination which would be open to all qualifying candidates throughout the country. Such entrance examination should in our opinion be held by
the Government of India or the Indian Medical council on all India basis and should be granted to the various medical colleges in the country on the
basis of the marks obtained at such entrance examination and while granting admission any preference expressed by the students for any particular
state or university or medical college or colleges shall be kept in mind, and as far as possible, effort shall be made to conform to such preferences
so that the students who secure admissions are least inconvenienced and they are able to carry on their studies near their place of residence.
No doubt the direction in the judgment has been given only for a minimum of 30% open seats not reserved on the basis of residence
requirement or institutional preference. But the question is what made the apex court to give such directions. Manifestly it was done to protect
equality before law. ft has weighed in the mind of their lordships that selections were going to be made on the bias of qualifying examinations where
standards of judging was different for different universities/states. They were conscious of the fact thai some universities are liberal on their marking
while some others strict and there can be no comparable standards on the basis of which the relative merits of the students could be judged. It
would be wholly unjust to grant admissions to students by assuming relative merits with reference to the marks obtained by them, not at the same
qualifying examination where standard of judging would be reasonable uniform but at different qualifying examinations held by different universities
where the standard of judging would necessarily very and not be the same. In short the question is of uniformity of the standards while judging the
capability of candidates seeking admission.
The apex court has given us the guidelines and laid down principle that where the standard of judging is different in the qualifying examination of
students it would not be capable to maintain equality before the law. All the candidates must be judged on a uniform standard so as to select best
out of them,
In the present case we have peculiar position in our state. Though apparently the qualifying examination is managed by the same Board of
School Education but actually it has no uniformity of standard. We have separate universities for Jammu province and Kashmir Province, which are
totally independent of each other. The academic session for the Kashmir Province is different from Jammu Province. In the relevant year the
academic session for Kashmir province was OctoberNovember and for Jammu Province MarchApril. As a result of this difference it is natural that
the students appearing in the same standard of examination are subjected to different sets of questbrn The standard of asking questions is different,
the method and (Banner of evaluation of the answer scripts is different. The answer scripts of Ihe candidates who appear in the Kashmir Province
and evaluated by the examiners of the Kaafimir Province and in the Jammu Province by the examiners of the Jammu province. It is therefore nat
oral that the examiners being different question papers being different type of examination being different the evaluation must also be different. In
these circumstances there can be no comparable standards on the basis of which the relevant merits of the students could he judged. It would thus
be wholly unjust to give weightage to the marks obtained in the qualifying examination, when the vigorous of examinations are different and method
of evaluation is different. It is for this very reason that this court has already held the impugned weightage as violative to the mandate of the
judgment of the supreme court referred to above. Moreover it is a fact that mass copying is daily taking place with impunity in the qualifying
examinations and all other examinations, held by the Board of School Education, making its results sham and credible. The students who bank on
their merit do not resort to unfair practices. As against that the dull students indulge in unfair practices and manage obtaining more marks in the
qualifying examinations. The position is different in the entrance test held by the Authority, where merit prevails, and the unfair practical is not
possible.
Previously all I he candidates irrespective of the fact whether they belonged toJammuand Ladakh or Kashmir, were subjected to common
standard. Ali of them were required to answer the same questions simultaneously in the same examination, i.e. entrance test, and thereafter
subjected to viva voce test. No weightage used to be given to qualifying examination and standard of judging was the entrance test plus viva voce.
There was thus uniformity in the criteria of selection.
For the reasons, I am of the opinion that giving of weightage to qualifying examination in the J&K State, in its peculiar situation, directly offends
Art. 14 of the constitution of India.
Perhaps, for the same reasons good sense prevailed upon the respondents and they abolished SRO No. 191 just after one year, and have
done away with the practice of giving marks to the qualifying examination, while making selection of candidates of different courses.
The abolishing of the said SRO after keeping it in force only for one year fortifies the allegation of the petitioners that it was brought into
existence to help some candidates in getting admissions with malafide considerations. No doubt it is the domain of the Government, to devise the
selection procedure for various professional courses, but the question is why it should be changed once and again, after adopting a set procedure,
which was approved eves by the supreme court of India. The procedure once upheld by the courts should not be changed at the whim and caprice
of the executive and that too with malafide considerations, moreso, without sufficient notice to the candidates to prepare themselves accordingly.
Whenever any power is exercised arbitrarily, in an unreasonable manner and wilh malafide consideration, it is to be held bad in law.
The SRO 191 providing for weightage to qualifying examination was brought into existence after the students/ candidates had appeared in such
examination, and even the result had been declared. By the time the said notification was issued, the candidates were under a bonafide impression
and belief that the procedure for purposes of admission to the technical institutions would be the same as was followed in the previous years. The
candidates had appeared in the qualifying examination previously with a view to obtain more than 50% marks so as to be eligible for the purpose
of admission. They did not know at that time that it could constitute as a vital component in the selection process also. In that view of the matter the
SRO No. 191 issued subsequent to the declaration of results of the qualifying examination clearly acted prejudicial to the interests of the
petitioners. Fairness demanded that such a decision should have been taken much before the candidates appeared in the said qualifying
examination. It is well settled principle that the method and manner of selection should be declared publicly much before the candidates are asked
to appear in the examination, having a direct bearing in the selection process.
In these circumstances of the case, the petitioners have definitely been prejudiced by SRO 191 providing for weightage to the qualifying
examination, more so, when it was brought into existence much after they had appeared in the same.
Moreover this court on the analogy of the authority of Supreme court reported in (1985) 3 SCC2, has held the weightage given to the qualifying
examination as bad in law and on that basis granted relief to some persons in the writ petitions mentioned above. In this view of the matter it may
amount to discrimination, violative of constitutional guarantees if the writ petitioners herein are treated differently.
Mr. Jalali however submitted that the petitioners cannot be allowed to challenge the criteria after having subjected themselves to the same in
the impugned selection process. According, to him they are debarred from taking this plea on the principle of estoppel. He has referred me to AIR
1986 SC 1043 in this behalf. I have gone through this authority which in my opinion is not on all fours to the present controversy. There it was a
case pertaining to subordinate civil courts ministeria1l Establishment Rules 1947 and some modifications made in the syllabus for examination by
1950 Rules, and it was held that the entire 1947 Rules cannot be said to be repealed by implication by 1950 Rules. In para 23 of the judgment an
observation to the following effect was made:
Moreover this is a case when the petitioner should not have been granted any relief. He had appeared for the examination without protest. He
filed the petitioner reply after he had perhaps realized that he would not succeed in the examination.
This observation in the said judgment appears to me only as an obiter dictum and not the ratio decidende.
30, It is beaten law that a citizen cannot give up or waive a breach of the fundamental right that is indirectly conferred on him by constitutional
mandate of Article 14 directed to the State. On the language of Art 14 it is absolutely clear that it is a command issued by constitution to the .State
as a matter of public policy with view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as
India, is by her constitution expected to do, and no person can, by an act or conduct, relieve the state of the solemn, obligations imposed on it by
the constitution. In this regard I am fortified by the mandate of AIR 1959 SC 149.
The question is what option a poor candidate has when the criteria is abruptly changed by the Government for appearing in an examination. It
will be expecting too much from him to challenge such criteria ali at once, as soon it is changed, What does he know about the implications of
change of criteria in the beginning, or for that matter, how does he know as to whether it offends any of his fundamental rights. Even the eminent
jurists have divergent opinions on such points, not to speak of an SIC student. Except appearing in the examination and subjecting himself to the
selection process, the candidate at that stage is helpless. We have to be pragmatic enough while resolving the controversies confronting the
students community, who are pathetically eager to seek admissions in the technical institutions. Instead of instigating them to take recourse to
litigation even before appearing in the examination, they are required to prepare themselves for the tests, and more so in the competitive ones. In
my opinion it would be against the interests of the students community to advise them to challenge the rules and criteria of selection process even
before subjecting themselves to the same. Moreover, merely by subjecting SIC to some process it docs not mean that he is debarred from
challenging the legality of the same. If any process criteria or rule offends ones constitutional rights, he cannot be prevented from challenging the
same. In this view of the matter, I don't think the petitioners are stopped from challenging the impugned criteria, after having subjected themselves
to the same.
Mr. Jalali conceded at the bar that SRO No. 191 has been since abolished, and now it is the entrance test alone which determines the merit of
the candidates for their selection.
The question however remains that the operation of that SRO at the relevant point of time has offended the valuable right of some of the
petitioners and the court has to come to their rescue and do justice to them. The abolition of SRO is prospective in character and it cannot restore
the damage already caused to the said petitioners retrospectively. The court therefore will be justified to intervene and give appropriate relief to
them in accordance with law.
So this background of the case, now it is to be seen as to that relief, can be granted to the petitioners. As already mentioned above, from the
ten writ petitioners, four of them have withdrawn from the case. From the remaining six petitioners, only three of them have obtained more points
or equal points than the last candidate selected by the respondents. The remaining three petitioners have obtained less points than the last candidate
selected and, therefore, they are not entitled to any relief.
The petitioners have made the following prayers in the petition:
(i) That by an appropriate writ, direction or order including a writ in the nature of cerliorari, SRO 191 dated 5690 be quashed.
(ii) That by an appropriate writ, direction or order including a writ in the nature of certiorari, selection and admission of the private respondents be
quashed.
(iii) That by an appropriate writ direction or order including a writ in the nature of mandamus, the respondents be directed to hold viva voce test in
accordance with the procedure prevalent before 5690 of all the candidates and to prepare the select list accordingly, based on the points obtained
in the viva voce test.
(iv) That by an appropriate writ, direction or order the respondents be directed to publish and notify the Master Key immediately.
(v) By an appropriate writ, direction or order the respondents be directed to produce the entire record pertaining to selection before this court and
the petitioner be granted liberty to inspect the said records.
(vi) That by an appropriate writ, direction or order having regard to the submissions made in this writ petition, pending disposal of the petition
respondents be directed to grant provisional admission to the petitioners to the ensuring session of the MBBS course in Govt. Medical College,
Srinagar.
(vii) Any other appropriate writ, direction or order as the court may deem fit i n the facts and circumstances of the case be passed in favour of the
petitioners and against the respondents.
So far as prayer No.1 is concerned, it has already become in fructuous due to abolition of SRO 191.
So far as payer No.2 is concerned, its grant would be unjust, improper and inequitable at this stage. The private respondents have already been
admitted to MBBS/BDS courses and studies the same for about two years. For the fault of the concerned authorities they should not be punished
vigorously.
There are about two hundred candidates, who have been selected under the impugned SRO and all of them must have completed a fair
portion of the course by now, and it would be, therefore against the interests of Justice to unseat them in the mid of the way. Moreover from the
persual of the relevant result gazette, it appears had most of them have faired well even in the entrance test and they are superior in merit at least, to
most of the petitioners. Only two of the petitioners are better in merit to the last candidate selected. One of the petitioners is equal in merit to the
said candidate.
The prayers 3 to 5 also cannot be granted at this stage for the afore mentioned reasons.
After giving my serious consideration to the fact and circumstances of the case, I think three of the writ petitioners, namely, Miss Anjum
Afshana, Miss Bilqees Khalil and Syed Aqel Hussain, have been wrongly and unlawfully left out from selection, by the respondents. They deserves
to the selected in the MBBS course, in view of their merit position in the entrance test, as already discussed in this judgment somewhere. In my
opinion, two of them, namely Miss Bilquees Khalil and Syed Aqul Hussain are superior in merit to some of the selected candidates, and one of
them namely, Miss Anjum Afshana is equal in merit to the last candidate selected. The nonselection of these three writ petitioners is therefore held
as unlawful. Needless to mention that the weightage given to the qualifying examination, in my opinion is bad in law and, therefore, the three writ
petitioners cited above, after having obtained superior merit in the entrance test to some of the selected candidates cannot be allowed to suffer for
the same. After holding the impugned weightage as bad in law, the said petitioners cannot be made to suffer for obtaining less points in the same. In
the entrance test they are admittedly superior in merit to some of the selected candidates, as already stated above.
In these circumstances of the case, I partly allow this petition in favour of the three writ petitioners whose names and merit position has been
given above. The remaining writ petitioners cannot be granted any relief, as they are inferior in merit to the last selected candidate, even in the
entrance test.
It is, therefore directed that the writ petitioners namely Miss Anjum Afshana, Miss Bilquees Khalil and Mr. Syed Aqel Hussain be admitted in
the MBBS course, in the Medical College Srinagar fortwith. The writ petition shall stand dismissed so far as the rest of the petitioners are
concerned. There is no order as to costs. The file shall be consigned to records after due completion.