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TMI Blog1989 (5) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... Kashmir High Court on the follow- ing grounds: (I) The selection was not held in accordance with the directions of the said court given in an earlier case Jyotshana Sharma and Ors., v. State of Jammu Kashmir, decided on 17th of April, 1987 (hereinafter called Jyotshana Sharma's case). In that case the High Court directed the State Government to entrust the selection process of the two medical colleges to a statutory independent body and till that was done the State Government should entrust the process of selection to such a body which was to be free from executive influence. No statutory body was constituted and hence according to the High Court the selection made by any other authority was in violation of the directions of the High Court and as such bad in law. (II) The selection was not held by the competent authority as constituted by the order of the High Court dated 17th of October, 1988. Under the said order, competent authori- ty, was to consist of three persons. According to the High Court all the three persons never met and all of them never scrutinised the cases of the candidates who appeared in the entrance examination and viva voce and as such the selecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an independ- ent statutory body is constituted for conduct of entrance test for the MBBS/BDS course in the State which body shall be kept free from executive influence. Till that is done, State may entrust the process of selection to such a body which will be free from executive influ- ence. At any rate we do not approve Training Branch, or any other department of the State Government under the control of Administration or associate with the process of selection for the MBBS/BDS course in the State Medical Colleges. Selection Committee, till a statuto- ry body is constituted, shall consist of such persons who are academicians of high calibre and with the process of selection principals of the two medical colleges shall necessarily be associated. For evaluation of the answer scripts till a scientific method of setting up of independ- ent statutory body is evolved, as suggested by us, the evaluation of answer scripts shall be made through such examiners who shall be appointed in each subject in consultation with the Vice Chancellors of the two Universities of Jammu Kashmir. Consequent upon the aforesaid directions the State Government issued an order by a notification SRO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent authority had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. 5. Powers and Duties (i) The Competent Authority shall have the following powers and duties namely: (a) To conduct written tests and hold inter- views and take such other steps as may be considered necessary for the purpose of making selection to the professional courses. (b) To select and invite experts and appoint examiners for the purpose specified in clause (a). (c) To appoint committees of persons specified in clause (b) for the purpose of assisting the Competent Authority in making selection to professional course. (d) To incur such expenditure as shall be necessary for the due discharge of his powers under this para, out of the funds placed at his disposal by the Government from time to time. (ii) Subject to the orders issued by the Government in this behalf from time to time the competent authority shall be fully independent for exercise of the powers vested in him in this paras . Thereafter under SRO 29 1 one Shri Satish Raina, retired principal, S.P. College, Srinagar, was appointed as the Competent Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed competent authority after scrutinizing all the cases of the candidates who appeared in the entrance examination. Petitioner shall however have liberty to challenge the selection if he still feels aggrieved on all the grounds which are available to him. Considering the above said agreed order, we dispose of .the petition and order according- ly. The stay order passed earlier shall stand vacated and the connected CMPs disposed of. On 22nd October, 1988 a committee consisting of Prof M.Y. Tawana, Retired Controller of Examination, University of Kashmir, Dr. Y. Singh, Prof. of Physics, University of Kashmir and Dr. Abdul Azim, Reader in Mathematics, Universi- ty of Kashmir, was constituted to assist the competent authority. On 27th of October, 1988 list of selected candidates to the MBBS/BDS course for the session 1988-89 was published. Thereafter, Rajeev Mahajan and number of other unsuccessful candidates started second round of litigation by filing writ petitions in the High Court on 29th October, 1988. While the second batch of petitions was pending before the High Court, on 2 Ist November, 1988 the learned Chief Justice in the capacity of a third Judge, delivered judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore adverting to the controversy directly involved in these appeals we may have a fresh look on the inter-se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its abso- lute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, Executive and Judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democ- racy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which under the Constitution lies within the sphere of legislature of executive, provided these authorities do not transgress their constitutional limits or statutory powers. Now coming to the judgment under appeal the High Court says that its directions issued in Jyotshana Sharma's case have not been complied with thereby rendering the state- action in making selections for admission to the medical colleges invalid. To examine the High Court reasoning we have to see, as to which of the three organs of the State is entrusted, under the Constitution, with the function of taking a policy decision regarding management and admissions to medical colleges in the State. Both the medical colleges at Jammu and Srinagar are Government institutions. Entry 25 List III of Seventh Schedule, Article 246(2) and Article 162 of the Constitution of India and Section 5 of the Constitu- tion of Jammu Kashmir which are relevant, are reproduced hereinafter: Entry 25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List 1; vocational and technical training of labour Art. 246. Subject-matter of laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l college, Simla and ors., [1985] 3 SCC 169 this court held as under: ... The directions given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging, for otherwise it is difficult to see why, after the clear. and categorical statement by the Chief Secretary on behalf of the State Government that the Government will introduce legislation if found necessary and so advised, the Division Bench should have proceeded to again give the same direction. Thus the Division Bench was clearly not entitled to do. It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular le gislation. Of course, any member of the legislature can also introduce legislation but the court certainly cannot mandate the executive or any member of the legislature to initiate legislation, howsoever neces- sary or desirable the court may consider it to be. That is not a matter which is within the sphere of the functions and duties allocated to the judiciary under the Constitution ...... ... But at the same time the court cannot usurp the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Justice rightly treated the Bench's observations as suggestions and we agree with the same. There is also force in the contention that assuming the said suggestions to be the directions, the same have been complied with. SRO 29 1 was issued as a conse- quence of the judgment in Jyotshana sharma's case. The notification specifically states whereas a Division Bench of the High Court by judgment and order 17th April, 1987 inter-alia made certain suggestions for improving the system for making admission to MBBS/BDS course in the State, now, therefore, in deference to the observations of the High Court of Jammu Kashmir ..... the Government hereby makes the following order ..... Mr. Bhim Singh, learned counsel appearing for the unsuccessful candidates, however, argued that the principals of two medical colleges have not been associated with the selections. That may be so but we are satisfied that SRO 291 read with 1987 Order issued by the State Government which provide method and elaborate procedure for making selections to the medical colleges of Jammu Kashmir substantially comply with the directions of the High Court. Mr. Bhim Singh, Mr. Anil Dev Singh, Mr. D.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of the third member without reconstituting the tribunal were without jurisdiction. This Court, construing the provisions of Sections 7 and 8 of Industrial disputes Act, 1947 read with Rule 5 of the Industrial Disputes Rules, 1949, came to the conclusion that when a vacancy occurred it was obligato- ry on the Government to notify its decision as to whether it intended to fill up the vacancy or not, and if the Govern- ment decided not to fill up the vacancy, a notification under Section 7 of the Act was essential to reconstitute the remaining members of the tribunal. The decision was rendered on the construction of the relevant statutory provisions and keeping in view the fact that the tribunal was to perform quasi-judicial functions. The ratio of this decision is inapplicable to the committee constituted by executive order for performing purely administrative functions. Selection of candidates for admission to medical colleges does not in- volve performance of any judicial or quasi-judicial func- tions. Mr. Anil Dev Singh then relied upon A vadh Bihari Sinha v. University of Bihar, C.A. 1650/67 decided by this Court on 4th of January, 1968. In this case Bihar University Regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, not correct to say that the scrutiny was done only by the committee and not by the competent authority. The purpose of appointing a committee under SRO 291 read with 1987 Order was to assist the competent authority. The scrutiny in this case having been approved by the competent authority, it cannot be said that the competent authority abdicated its powers to the committee. We, therefore, do not see any force in this argument of the learned counsel. Mr. Bhim Singh also objected to the appointment of committee by the Government. According to him under SRO 291 the committee could only be appointed by the competent authority. Reading SRO 291 with 1987 order it is clear that the competent authority is to function subject to the orders issued by the Government from time to time. The Government was therefore, within its authority to appoint the committee and no fault can be found with the same. All the learned counsel appearing for the unsuccessful candidates have attacked the method and procedure of holding the entrance examination and the viva voce. Mr. Altar Ahmed with the help of Prof. Satish Raina, who was present in the Court and also other officials, explained to us th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the proc- ess of selection while bringing objectivity and reducing subjectivity the element of chance has crept in. We would prefer a method of selection which rules out human discre- tion and favouritism but may bring in a fraction of chance in its operation. This very method of viva voce came for consideration before this Court in Kaushal Kr. Gupta v. State ofJammu Kashmir, [1984] 3 SCR 407. The court ob- served: ..... We must record our appreciation that respondents 1 to 3 have practically set at naught drawbacks and deficien- cies in oral interview as pointed out by this Court. The viva voce test conducted must be held to be fair, free from the charge of arbitrariness, reasonable and just ...... Undoubtedly, the expectation of the Court which frowns upon anything arbitrary or unreasonable hag added to the workload of the Selection Committee. But today when there is rush for admission to Engineering Colleges like the Ceaser's wife, the selection must be objective and beyond reproach. That has been scientifically achieved in this case. We hope that bodies charged with the difficult task of ascertaining merits for admission will take cue from what has been done by r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory. The reservations have been provid- ed under SRO 291 read with SRO 272 dated 3rd of July, 1982. Reading Paras II and III of SRO 272 together it is clear that the 50% of the general category seats have to be filled in the first instance and remaining seats are to be offered to the reserved category thereafter. Counting the reserve candidate, who fall within the first 50 positions, as gener- al candidate, is thus permissible under SRO 272. The execu- tive orders providing reservations have not been challenged. There is no material on the record to show that procedure followed to fill the reserve/general vacancies has resulted in excessive representation to the reserve category. We, therefore, see no merit in the contention. Mr. B. Sen and Mr. Bhim Singh also assailed the selec- tions on the ground that SRO 380 dated 7th of July, 1983 as amended by notification dated 9th May, 1986 provides that the candidates who obtain such minimum qualifying marks in the written test as may be fixed shall only be called for viva voce. It is argued that since minimum qualifying marks have not been fixed the selection is bad. We do not agree with the learned counsel. The competent authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee more seats are added Shaheen Aara comes within the zone of selection. On the other hand Mr. Altar Ahmed urged that 50% is to be counted of the local intake. According to him 175 seats for MBBS and 10 seats for BDS are for the local candidates which he meant as local-intake. According to him total available seats for local-intake being 185 the general category has been rightly given 93 seats. He urged that six additional seats have been provided for Non Resident Defence Personnel, Para Military Defence Personnel and Non Residents under the Government Orders. According to him these six seats cannot be added to the available seats which would remain 185. We see no illegality in taking 185 as the number of available seats for determining 50% for the general category. Mr. Prithviraj in SLP (C) No. 305/89 contends that petitioner Jyoti Kumari is at number one in the waiting list of Scheduled Caste candidate. There are 15 seats for this category as a result of 8% reservations. Since 50% seats have to go to female candidates out of these 15 seats, 7 have been given to men and 7 to women. The 15th seat has been given to a male Schedule Caste candidate as he was having better merit than J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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