Full Judgment Text
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PETITIONER:
ATUL KHULLAR & ORS. ETC. ETC.
Vs.
RESPONDENT:
STATE OF J & K AND ORS. ETC. ETC.
DATE OF JUDGMENT15/04/1986
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
MISRA, R.B. (J)
CITATION:
1986 AIR 1224 1986 SCR (2) 560
1986 SCC Supl. 225 1986 SCALE (1)1329
CITATOR INFO :
R 1989 SC1899 (32)
ACT:
Professional Colleges - Admission to Medical/
Engineering Colleges - Selection of candidates from backward
areas/classes - Validity of. Selection Procedure -
Allocation of only 85 points to written test and 15 points
to viva voce Whether gives weightage to viva voce over
written test. Viva voce test - Reference of components -
Behaviour, physical bearing and power of oral expression -
Worksheets of individual members of Selection Committee -
Need to maintain. Selection/Nomination of candidates -
Relevance of merit in the Select List.
HEADNOTE:
The petitioners challenged the selection of candidates
for admission to the first year of the MBBS and BDS degrees
in the Government Medical Colleges at Srinagar and Jammu,
the B.E. First Year Course in the Regional Engineering
College, Srinagar, and the nominations made by the State
Government to the Medical and Engineering Colleges outside
the State for the academic year 1984-85.
Admission to these courses was through entrance
examinations consisting of a written test and a viva voce
test, conducted separately for the medical and engineering
courses. Under the procedure laid down in the Jammu &
Kashmir Government Medical Colleges (Selection of Candidates
for Admission to the First Year MBBS Course) Procedure
Order, 1983, the written test carried 85 points and the viva
voce test 15 points, making a total of 100 points. The
points reserved for the viva voce test were sub-divided into
8 points for "Aptitude" and 7 points for "General knowledge
and General Intelligence". A similar procedure was
prescribed for admission to the Regional Engineering
College, Srinagar. The entire proceedings during the
interviews were to be recorded on a tape recorder. Fifty per
cent of the total admissions were to be affected on the
basis of open merit and the
561
remaining fifty per cent on the basis of merit from amongst
A reserved categories including the Scheduled Castes,
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socially and educationally backward classes as well as
residents of backward areas. Nominations to the institutions
outside the State were to be made on the basis of merit in
the select list.
Annexure 1 to SRO 272 issued by the State Government on
July 3, 1982 enumerated 1153 villages short of the Actual
Line of Control Zone as backward areas of the State. SRO 334
dated June 13, 1983, raised this figure to 1754 villages.
Thereafter SRO 335 dated June 14, 1983 added 25 villages and
SRO 412 dated August 27, 1984 another 14 villages with the
result that 1793 villages constituted the backward areas of
the State. In regard to the Actual Line of Control Zone, SCO
335 added 9 villages to the 347 villages identified earlier.
Candidates claiming consideration under the backward areas
category were required to enclose a certificate by the
Tehsildar in support of their claim to that benefit.
It was contended for the petitioners that the selection
of several candidates from the backward areas categories,
including areas near the Actual Line of Control Zone, w
invalid as the category includes areas which were not
originally included in Annex. 1-to SRO 272 but have been
added subsequently, that candidates shown as residing in
urban areas of cities cannot be regarded as candidates from
the backward areas category even though their respective
families hailed from such areas, that the absence of minimum
qualifying standard renders the selection of candidates from
reserved areas categories arbitrary and invalid, that the
allocation of only 85 points to the written test and as many
as 15 points to the viva voce of a total of 100 point gives
a weightage to the viva voce test over the written test
which was unreasonable, that the marks assigned to the
candidates during the viva voce test had been manipulated in
order to ensure that the number of candidates selected from
the Valley of Kashmir corresponded in proportion to the
respective strengths of the communities in Kashmir, that
notwithstanding the specific order made by the Court on
March 19, 1985 the respondent State had failed to produce
the worksheets of the individual members of the Selection
Committee, that the Selection Committee by taking into
account the behaviour,
562
physical bearing and power of oral expression of the
candidates under the "general intelligence" during the viva
voce test, had given importance to considerations which were
hardly relevant for assessing the intelligence and
suitability of the candidates, that candidates with inferior
merit in the select list were admitted over the head of
those with superior merit, and that the nominations of
candidates made by the State Government to colleges outside
the State were invalid in as much as they violated the
criteria laid down by this Court.
The special leave petition had been filed by the
candidates against the order of the High Court setting aside
their selection because of their inferior merit in the
select list.
Dismissing the writ petitions and the special leave
petition, the Court,
^
HELD : 1. The State Government could not be said to haw
acted arbitrarily and without reason in identifying and
adding more backward villages to the number enumerated in
SCO 272 dated July 3, 1982. That list was open to further
enlargement, and so was the case with subsequent
notifications. It is perfectly possible for the conditions
of a village to change during the years, and it is quite
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conceivable that a village considered suitably developed at
one time should deteriorate thereafter to the point of
becoming backward. [570 C-E]
2. Temporary residence in an urban area cannot deny a
candidate the right of admission on the basis of a reserved
category if in fact he belongs permanently to a village in a
backward area. Because of the lack of higher educational
facilities a candidate belonging to a village in the
backward area may have to reside temporarily in a city where
such education is available. It may also be that a parent of
the candidate may pursuant to his employment, have taken up
residence in an urban area. That in itself does not snap the
bond between the candidate’s family and their village, so
long as the assumption of residence in the city is
occasioned by temporary necessity. The candidates who
claimed the benefit of permanent residence in backward areas
have filed a certificate
563
from the Tehsildar in the prescribed form in support of
their A claim, and there is nothing on record ex facie to
doubt the correctness of that certificate. [571 F; 572 A-C;
571 B-C]
3. The advertisement calling for applications for
admission prescribed the minimum percentage of marks
required in the specified examinations as a condition of
eligibility for candidates generally, while laying down a
lower minimum percentage for candidates belonging to
reserved categories. That ensured not only that candidates
with sufficiently suitable academic level were alone
permitted to apply but also that the minimum percentage of
marks attained by candidates from the several categories in
the entrance examination would not fall below a reasonable
level. Though no minimum has been prescribed as the bottom
line for selecting candidates from the reserved categories,
no such minimum has been prescribed for selecting candidates
from the general category either. The rule must be that
candidates are selected for admission from the different
categories according to the order of merit. [572 F-H; 573 A-
C]
4. The allocation of only 85 points to the written test
and as many as 15 points to the viva voce test out of 100
points does not give a weightage to the viva voce test over
the written test. It cannot be said to create an
unreasonable imbalance in the evaluation of a candidate’s
ability. [573 F-G]
Koshal Kumar Gupta & Ors. v, State of J & K & Ors.,
[1984] 3 S.C.R. 407 referred to.
5. Unless there was clear evidence to show that there
was a conscious attempt to ensure that the selection of
candidates from different communities corresponded to the
strength of those communities in the Valley of Kashmir, it
cannot be said that there was any deliberate connection
between the number of candidates selected and the strength
of the respective communities from which they hail. [574 C-
E]
Triloki Nath & Anr, v. State of Jammu & Kashmir & Ors.,
[1969] 1 S.C.R. 103 referred to
6. A Selection Committee conducting the viva voce test
should maintain the entire record, including the original
worksheets on which the marks have been recorded by each
564
member separately, for a minimum period of one year after
the examination. Failure to do so could strengthen an
allegation of malafides against the Selection Committee.
[575 F-G]
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7. Where a viva voce test is permissible for the
purpose of adjudging the general intelligence of the
candidates, its three components behaviour, physical bearing
and the power of oral expression become relevant. The
presence of mind displayed by a candidate in answering a
question in an index of general intelligence, and his power
of oral expression is evidence of his ability to communicate
intelligently. The third component-physical bearing,
possesses a somewhat remote connection with general
intelligence. It denotes the physical manner in which the
candidate responds to the stress ant tension experienced by
him during the interview. Though tenuous, this component is
not so unrelated to general intelligence that it could be
said to be an unreasonable element in deciding on a
candidate’s suitability. [577 F-H; 578 A-Bl
8. The admission of candidates is liable to be quashed
unless they have been selected by virtue of their merit in
the select list. If a candidate not holding a position of
merit has been erroneously selected, the candidate who is
qualified by virtue of his position in order of merit is
entitled to be admitted in his place. [579 G-H]
9. Nominations to medical and engineering colleges
outside the State shall be made strictly on the basis of a
writ in the select list. me State Government must nominate
candidates in place of the vacancies arising thereafter in
accordance with the merit list which was in force in the
State. [579 F]
Suman Gupta & Ors. v. State of J & K & Ors., [1983] 3
S.C.R. 985 followed.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petitions Nos. 3023-32 of
1985 etc.
Under Article 32 of the Constitution of India.
Dr. Y.S. Chitale, Altaf Ahmad, S.K. Bisaria, S.K.
Bhattacharya, S.C. Patel, Subhash Sharma, L.R. Singh,
B.B.
565
Sawhney, Ms. Indra Sawhney, Mrs. Jaya Mala and K. Bansi Lal
A for the Petitioners.
S.N. Kacker, M.H. Baig, E.C. Agarwala, R. Sathish,
V.K. Pandit, Shabir Ahmed for the Respondents.
The Judgment of the Court was delivered by
PATHAK, J. On May 10, 1985 we delivered an order in
these cases disposing of the writ petitions and special
leave petitions. We stated that the reasons for the order
would be pronounced later. The hearing of these cases had
been completed only a few days before the commencement of
the Long Vacation and as counsel for the parties desired
that we deliver the order before the Court closed we did so.
We now set forth the reasons.
The large group of writ petitions and special leave
petition before us fall into two groups. A number of them
challenge the selection of candidates for admission to the
first year course of the M.B.B.S. Degree and the B.D.S.
Degree in the Government Medical Colleges at Srinagar and
Jammu for the session 1984-85. They also challenge the
nominations of students from Jammu and Kashmir by the State
Government to Nedical Colleges outside that State. The other
group of cases challenges the validity of the Select List
for admission to the B.E. First Year course of studies at
the Regional Engineering College, Srinagar and also aasail
the validity of nominations made by the State Government to
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Engineering Colleges outside the State.
Medical Group F
On June 10, 1984 the Government of Jammu and Kashmir
published an advertisement inviting applications from
permanent residents of the State for admission to the First
Year M.B.B.S. Course in the Medical Colleges of the State
for the session 1984-85. To be eligible, candidates should
have passed one of the qualifying examinations mentioned
therein and should have studied in the recognised
educational institutions in the State. Fifty per cent of the
total admissions were to be affected on the basis of open
merit while the remaining fifty per cent were to be selected
on the
566
basis of their merit from certain reserved categories,
including Scheduled Castes, Socially and Educationally
Backward classes comprising weak and under-privileged
classes (Gujjar and Bakarwal and other social castes), as
well as residents of backward areas. Eligible candidates
were to appear in a written entrance test and a viva voce
test. The backward areas consisted of the areas enumerated
in Annexure I to S.R.O. 272 dated July 3, 1982 issued by the
State Government and prepared on the basis of the Wazir
Committee Report and the Anand Committee Report as well as
the Census Reports of 1971. To those villages were added a
number of others by Notification No. SRO 335 dated June 14,
1983 and S.R.O. 412 dated August 27, 1984. Candidates
claiming consideration under the backward areas category
were required to enclose a certificate by the Tehsildar in
support of their claim to that benefit.
Thereafter the State Government issued S.R.O. 380 dated
July 7, 1983 modifying the Notification S.R.O. 272 dated
July 3, 1982, and promulgating the Jammu and Kashmir
Government Medical Colleges (Selection of Candidates for
Admission to the First Year M.B.B.S. Course) Procedure
Order, 1983. merely the written test was to carry 85 points
and the viva voce test was to carry 15 points, making a
total of 100 points. me points earmarked for the viva voce
test were further sub-divided into (a) Aptitude, carrying 8
point and (b) General Knowledge and General Intelligence,
carrying 7 points. On August 9, 1984 the State Government
sanctioned the constitution of an Admission Selection
Committee for the selection of candidates for admission to
the two Medical Colleges of the State for the session 1984-
85. The Chairman of the Public Service Commission was
appointed Chairman of the Admission Selection Committee, and
the Principal, Government Medical College, Srinagar and the
Principal Government Medical College, Jammu were to be its
two members. The Committee was empowered to arrange and
conduct the written test and to evolve its own procedure for
the appointment of Examiners, the setting of papers and the
conduct of the Examination. The Selection Committee decided
that the Principals of the two Medical Colleges, who were
Members of the Committee, would set the question papers and
the answer books would be evaluated by a list of Examiners
drawn up by the Committee. The viva voce Examination was to
be conducted by a procedure which envisaged the preparation
of
567
question cards on each subject, the question cards would be
kept in the interview room during the interview and
individual candidates would be asked to draw the question
cards of their choice, each candidate being required to pick
up one card from each group and after reading the question
the candidate was to give his oral answer. The Committee
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would assess the performance of each candidate and allot
points in accordance with the provisions of S.R.O. 380 dated
July 7, 1983. The entire proceeding during the interviews
was to be recorded by tape recorders.
The written tests were held at Srinagar and Jammu on
September 12 and 13, 1983, and the answer scripts were
evaluated from October 1, 1984 to October 13, 1984. The viva
voce test was conducted at Srinagar from October 8, 1984 to
October 17, 1984 and at Jammu from November 19, 1984 to
November 24, 1984. Before the interviews comprising the viva
voce test were commenced the Admission Selection Committee
decided on October 8, 1984 that the 15 points allocated to
the viva voce test should be further sub-divided as follows
:
Aptitude ... 8 Points
1. Physics ... 2 points
2. Chemistry ... 2 points
3. Biology ... 4 points
(Botany) ... 2 points
(Zoology) ... 2 points
General Knowledge and General Intelligence 7 Points
1. General Knowledge ... 4 points
2. General Intelligence ... 3 points
(a) Presence of mind ... 1 point
(b) Physical Bearing ... 1 point
(c) Expression ... 1 point
Earlier the State Government had published an advertisement
dated September 19, 1984 inviting applications from
residents of the State for training in the B.D.S. Course in
various Dental Colleges of different States for the session
1984-85, and on September 21, 1984 the State Government
wrote to the Admission Selection Committee that while
holding interviews of
568
candidates for admission to the M.B.B.S. Course it should
give an option to the candidates to choose whether they
would like to be considered for training in the B.D.S.
Course during the current session, and that accordingly such
candidates should be interviewed in accordance with the
provisions of Notification S.R.O. 380 dated July 7, 1983.
Nine candidates were to be selected for that Course.
On January 19, 1985 the State Government published a
list of candidates selected for admission to the First Year
M.B.B.S. Course in the two Government Medical Colleges of
the State and to the First Year B.D.S. Course in the
Government Medical College, Srinagar for the session 1984-
85. For the First Year M.B.B.S. Course 76 candidates were
selected on the basis of open merit and 74 candidates were
selected from the reserved categories, making 150 candidates
in all. Nine candidates were selected for admission to the
First Year B.D.S. Course.
Beside the selection of candidates for admission to the
Medical Colleges of the State of Jammu and Kashmir, the
State Government nominated certain candidates for admission
to Medical Colleges outside the State. These included
nominations of candidates for admission to the M.B.B.S.
Course and the B.D.S. Course in the Medical Colleges of the
State of Tamil Nadu
The petitioners are candidates who applied for
admission to the First Year M.B.B.S. Course and the First
Year B.D.S. Course in the Government Medical Colleges of the
State of Jammu and Kashmir, but were not included in the
Select List respecting those Medical Colleges nor were
nominated for admissions to any Medical College outside the
State. They challenge the selection of candidates for
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admission to the Medical Colleges of the State as well as
the nominations made for admission to Medical Colleges
outside the State.
Learned counsel for the petitioners has taken us
through a historical survey of the various stages of
evolution in Jammu and Kashmir of the procedure for
selecting candidates for the professional courses of
medicine and engineering, culminating in the procedure
employed for the purpose of the present selections. The
successive decisions of this Court,
569
from Triloki Nath & Anr. v. State of Jammu & Kashmir & Ors.,
[1969] 1 S.C.R. 103 onwards, have been placed before us and
our attention has been invited to the contents of the Wazir
Committee Report, the Anand Committee Report and other
material which has entered into the formulation of the
scheme for admission.
It is contended by learned counsel for the petitioners
that the selection of several candidates from the Backward
Areas category, including areas near the Actual Line of
Control, is invalid inasmuch as the category includes areas
which were not included originally in Annexure I to
Notification S.R.O. 272 dated July 3, 1982 but have been
added subsequently, and that candidates not belonging to
backward areas have been selected under the reserved
category. The first prong of attack proceeds on the
assumption that the area added to those enumerated in
Annexure I to Notification S.R.O. 272 dated July 3, 1982
could not have been treated as backward areas. It is urged
that the villages enumerated in Annexure I to S.R.O. 272
dated July 3, 1982 had been selected on the basis of
criteria set forth in the Wazir Committee Report, the Anand
Committee Report and the Census Reports of 1971, and no
further areas could be added to that list which was
completely exhaustive. It is pointed out that the Actual
Line of Control had all along remained unaltered after the
Simla Agreement and there was no basis for adding to the
villages defined by their proximity to it. We are unable to
accept the submission. In regard to the backward areas short
of the Actual Line of Control Zone, the Wazir Committee
Report had identified 696 villages as constituting the
backward areas of the State. The Anand Committee Report
enlarged the number to 1153 villages. S.R.O. 334 dated June
13, 1983 identified as many as 1754 villages in that
category. Thereafter S.R.O. 335 dated June 14, 1983 added 25
villages and S.R.O. 412 dated August 27, 1984 added another
14 villages. In the result, 1793 villages constituted the
backward areas of the State. In regard to the Actual Line of
Control Zone, S.R.O. 335 dated June 14, 1983 added 9
villages to the 347 villages identified earlier. The
additional villages added by S.R.O. 335 dated June 14, 1983
and S.R.O. 412 dated August 27, 1984 by the State Government
were so added after the Cabinet of Ministers had considered
the material placed before it and taken a decision thereon.
The
570
material included reports from the District Development
Commissioners concerned. It is apparent from the Memorandum
submitted to the Cabinet that the criteria formulated by the
Wazir Committee Report, the Anand Committee Report and the
data contained in the Census Reports of 1971 were present to
the mind of the Cabinet when the Orders were made. These
comprised the same criteria as formed the basis of
identifying backward areas in S.R.O. 272 dated July 3, 1982.
The District Development Commissioners of the district
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concerned had already gone into the matter, and after
holding meetings of the District Development Boards they had
made the recommendations responsible for the addition of
those villages. We are not satisfied that the material
before the State Government was such that the State
Government can be said to have acted arbitrarily and without
reasons. We are of opinion that S.R.O. 335 dated June 14,
1983 and S.R.O. 412 dated August 27, 1984 cannot be regarded
as invalid on that ground. We are also of the view that the
list of villages enumerated in S.R.O. 272 dated July 3, 1982
cannot be regarded as a final and complete list for all time
of villages constituting the backward areas. It is perfectly
possible for the conditions of a village to change during
the years, and it is quite conceivable that a village
considered suitably developed at one time should deteriorate
thereafter to the point of becoming backward. Therefore we
hold that not only was the number of villages enumerated in
Annexure I to S.R.O. 272 dated July 3, 1982 open to further
enlargement, there was also good material on the basis of
which the particular villages mentioned by the State
Government in the subsequent Notifications could be
legitimately added to the list of backward areas.
The second part of the contention set forth earlier is
that candidates not belonging to backward areas have been
selected for admission from the reserved categories. The
petitioners have indicated several names in the Select List
who, they say, should not have been given admission. We have
gone through the entire list and carefully considered the
facts pertaining to those candidates whose inclusion has
been challenged by the petitioners. We find no sufficient
material for sustaining the challenge made by the
petitioners. With the assistance of counsel for the parties
we have considered the case in respect of each of the
candidates selected in the
571
backward area categories, the Line of Actual Control
Category and the B.D.S. Course and we find that in each case
the candidate can be said to belong to a village listed as a
backward area either in S.R.O. 272 dated July 3, 1982 as
originally framed or pertaining to S.R.O. 335 dated June 14,
1983 or S.R.O. 412 dated August 27, 1984. In some cases the
candidates had given an address in Jammu, and it is
contended by the petitioners that such candidates could not
be regarded as belonging to a backward area. The candidates
who claimed the benefit have filed a Tehsildar’s Certificate
in the prescribed Form in support of their claim, and there
is nothing on record ex facie to doubt the correctness of
that Certificate. Nor is it for the Court in this proceeding
to inquire into the correctness of the Certificates.
Annexure II to Notification S.R.O. 272 dated July 3, 1982
makes provision for the grant of such Certificate, their
prescribed Forms, the authority entrusted with the power to
grant them and the conditions subject to which they can be
granted. Even if this Court could be said to possess
jursidiction to enter into an inquiry whether the
Tehsildar’s Certificates are valid and reliable documents,
it appears difficult, having regard to the state of the
record before us, to sustain the challenge to their
validity. A specific submission has been made in regard to
the selections of Meenakshi Kotwal, Inderjit Singh and
certain other candidates who have been shown as residing in
the City of Jammu, and it is urged that they cannot be
regarded as candidates from the backward areas category even
though their respective families hail from such areas. It
appears to us that their residence in the City of Jammu is
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essentially of limited and temporary duration, and to our
mind, temporary residence in an urban area cannot deny those
candidates the right to admission on the basis of a reserved
category if in fact they belong permanently to a village in
a backward area. Appendix II of Annexure II to S.R.O. 272
dated July 3, 1982 requires that a candidate claiming to be
a permanent resident in areas adjoining the Actual Line of
Control or in other backward areas should establish the
ground of his claim before the Tehsildar before he can be
issued a certificate in that behalf. The Tehsildar has
granted a certificate to the different candidates whose
title to consideration as members of the reserved categories
has been challenged by the petitioners, and there is no
satisfactory material before us to indicate that the basis
underlying the
572
certificate is entirely without substance. A candidate may
belong to a village in terms of the requirement prescribed
by the Anand Committee Report and because of the lack of
higher educational facilities he may have to reside
temporarily in a city where such education is available. It
may also be that a parent of the candidate may pursuant to
his employment, have taken up residence in an urban area.
That in itself does not snap the bond between the
candidate’s family and the village, so long as the
assumption of residence in the city is occasioned by
temporary necessity.
A specific challenge has also been made to the
selection of the candidate Farooq Ahmed (Roll No. 503) who
is said to have been actually awarded 41.31 points but has
been shown as having got 44.31 points. We have carefully
examined the matter and in our opinion it appears that a
mistake had been committed in the original recording of
marks, and the mistake was removed by finally correcting the
candidate’s tally to 44.31 points.
A complaint has been made by the petitioners that in
the case of candidates from reserved area categories no
qualifying minimum has been prescribed and, therefore, no
matter what the marks attained by him the candidate has to
be regarded as entitled to selection. It is contended that
the absence of minimum qualifying standard renders the
selection of candidates from reserved area categories
arbitrary and invalid. The contention must fail. In the
first place, the advertisement calling for applications for
admission to the Medical Colleges clearly prescribes the
minimum percentage of marks required in the specified
examinations as a condition of eligibility. While a minimum
percentage of marks has been prescribed for candidates
generally, a lower minimum percentage has been laid down for
candidates belonging to the categories of Scheduled Castes,
Gujjars, Bakarwals and candidates hailing from the Districts
of Leh and Kargil. That ensures that candidates with a
sufficiently suitable academic level are alone permitted to
apply. It can be expected that having regard to the minimum
qualifying percentage applied as a condition of eligibility
for the purpose of submitting applications, the minimum
percentage of marks attained by candidates from the several
categories in the entrance examination will not fall below a
reasonable level. There is
573
no doubt that no minimum has been prescribed as the bottom
line for selecting candidates from the reserved categories,
but no such minimum has been prescribed for selecting
candidates from the general category either. There is a
limited number of seats, and the allocation of those seats
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between candidates from the general category and candidates
from the reserved categories has been fixed. The rule must
be that candidates are selected for admission from the
different categories according to the order of merit.
It was faintly urged that admissions to the B.D.S.
Course within the State has been affected without separate
applications from the candidates. It appears, however, that
each candidate was asked whether he was interested in being
considered for admission to the B.D.S. Course, and that all,
or at least most, of them opted for being so considered in
addition to the M.B.B.S. Course of studies.
Another contention raised by the petitioners is that
the answers in some of the answer scripts have not been
assigned marks. We examined the answer scripts placed before
us and we could find nothing to substantiate the grievance
of the petitioners.
There was a general submission that the procedure
followed in conducting the written test and the viva voce
test by the Selection Committee was invalid. We have
examined the detailed procedure followed in preparing the
question papers and evaluating the answer scripts and have
considered other aspects of the matter. The petitioners have
not succeeded in establishing that the procedure is
materially defective. It is urged that the allocation of
only 85 points to the written test and as many as 15 points
to the viva voce test out of a total of 100 points gives a
weightage to the viva voce test over the written test which
is unreasonable. We are unable to agree that the allocation
of 15 points to the viva voce test creates an unreasonable
imbalance in the evaluation of a candidate’s ability. See
Koshal Kumar Gupta & Ors. v. State of J & K & Ors., [1984] 3
S.C.R. 407.
The next contention is that the dates for the written
test and for the viva voce test were so fixed that it was
possible for the Selection Committee conducting the viva
voce
574
test to know before hand what were the marks obtained by
each candidate in the written test. The suggestion is that
it was possible for the Selection Committee to favour some
candidates at the expense of the others during the viva voce
test in order to make good any deficiency in the marks
awarded in the written test. As we have mentioned earlier,
the written test was conducted on September 12 and 13, 1984.
The answer books were evaluated from October 1, 1984 to
October 13, 1984. The viva voce test commenced at Srinagar
from October 8, 1984. We are not satisfied upon the material
before us that there is any substance in the allegation
levelled by the petitioners.
The main attack by the petitioners has been directed
against the procedure adopted during the viva voce test. It
was vehemently urged by the petitioners that the marks
assigned to the candidates during the viva voce test had
been manipulated in order to ensure that the number of
candidates selected from the communities constituting the
population of the Valley of Kashmir corresponded in
proportion to the respective strengths of these communities
in Kashmir. The submission was made apparently to gain
support from the decision of this Court in Triloki Nath’s
case (supra) and the cases following it. The petitioners
have, however, been unable to establish that there is any
deliberate connection between the number of candidates
selected and the strength of the respective communities from
which they hail. To establish this allegation something more
is required. There must be clear evidence to show that there
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was a conscious attempt to ensure that the selection of
candidates from different communities corresponded to the
strength of those communities.
It is then urged that individual candidates were
specially favoured during the viva voce test because they
were children or relations of senior Professors or teachers
of the Medical Colleges or of highly placed officers in the
State Government or possessed powerful political connections
within the State. We sent for the cassette tapes which
recorded the oral interviews held by the Selection Committee
during the viva voce test. The petitioners placed only a few
of these cassette tapes before us, and we have carefully
heard them played before us. We are unable to reach the
conclusion that the charge levelled by the petitioners is
substantiated.
575
Then it is pointed out that notwithstanding the
specific order made by this Court on March 19, 1985
requiring the respondent State to produce the work-sheets of
the individual Members of the Selection Committee prepared
during the viva voce test no such document was placed before
the Court amidst the voluminous records brought by the
respondent into Court. When this omission was pointed out
during the hearing of these cases, learned counsel for the
State Government and the Selection Committee informed us
that the work-sheets had been destroyed after the marks had
been recorded in the final Roll and before our order was
passed. We are not at all happy about that statement. The
Selection Committee can be presumed to have known that the
selections made for admission to the Medical Colleges of
Jammu and Kashmir would be challenged in court, even as they
had year after year in the past. Indeed some unsuccessful
candidates had already filed writ petitions in the High
Court assailing the selection shortly after the publication
of the list of successful candidates. Common sense and
reason required the Selection Committee to preserve the
Work-sheets on which they had recorded the marks awarded to
individual candidates during the viva voce test. It is urged
on behalf of the State Government and the Selection
Committee that it was considered appropriate to destroy the
work-sheets so that candidates would not know the particular
marks awarded by the individual members of the Selection
Committee. The plea is specious and weak and affords no
excuse. The work-sheets should have been kept in a sealed
cover for a period of time. As however the cassette tapes
selected by learned counsel for the petitioners have been
played before us, and we have found nothing there to throw
doubt on the marks assigned to the particular candidate, we
shall refrain in this case from drawing any adverse
conclusion against the Selection Committee. We find it
necessary, however, to emphasise that a Selection Committee
conducting the viva voce test should maintain the entire
record, including the original work-sheets on which the
marks have been recorded by each Member separately, for a
minimum period of one year after the Examination. Failure to
do so can strengthen an allegation of malafides against the
Selection Committee.
We shall now deal with the challenge made by the
petitioners to the nominations affected by the State
Government of candidates to Medical Colleges outside the
576
State. Three candidates, Syed Manzoor Ahmed Bhukari,
Rajinder Krishan Raina and Monika Verma were nominated to
the B.D.S. Course in the King George’s Medical College,
Lucknow. The petitioners do not dispute that the first two
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of these candidates were rightly nominated. The challenge is
confined to the third candidate, namely, Monika Verma, and
the ground underlying it is that she does not belong to the
reserved category of "Line of Actual Control". That Monika
Verma belongs to that reserved category is supported by the
Tehsildar’s Certificate in her favour, and we are not
satisfied that the certificate can be successfully assailed.
Besides, the nominations to the King George’s Medical
College, Lucknow, six nominations were made to Medical
Colleges in the State of Tamil Nadu, three to the MBBS
Course and three to the BDS Course. It is conceded by
learned counsel for the State Government that the six
nominations are invalid inasmuch as they violate the
criteria laid down by this Court in Suman Gupta and Ors.
etc. v. State of Jammu and Kashmir & Ors., [1983] 3 S.C.R.
985 as clarified by this Court by its Order dated September
22, 1983. They are liable to be quashed.
Engineering Group
The petitioners in these writ petitions challenge the
selection of candidates for admission to the Regional
Engineering College, Srinagar and also challenge the
nominations made by the State Government of candidates to
Regional Engineering colleges and other engineering
institutions outside the State. The State Government
constituted a Selection Committee consisting of Shri T.R.
Gupta, a Member of the State Public Service Commission as
Chairman of the Committee and Shri A.R. Mir, Chief Engineer,
Public Health Engineering, Kashmir, Professor Ansari,
Professor of Mathematics, Regional Engineering College,
Srinagar and Shri Mohd. Amin, Additional Secretary, General
Department (Trainings Branch), Government of Jammu and
Kashmir as its Members. On March 30, 1984 the State
Government issued a public advertisement inviting
applications from candidates for admission to the four-year
Degree Course at the Regional Eagineering College, Srinagar.
The Entrance Examination for the Purpose of admission was to
consist of a written test and a viva voce test. Out of 100
points, 85 points were allocated to the written test and the
remaining 15 points were allocated
577
to the viva voce test. The points reserved for the viva voce
test were sub-divided into 8 points for ’Aptitude’ and 7
points for ’General Knowledge and General Intelligence’. The
written test was held in June 1984 and the viva voce test
followed in July 1984. As in the case of admission to the
Medical Colleges, tape recorders were employed for recording
the oral interviews held during the viva voce test. On
September 21, 1984 the State Government issued a Select List
of 212 candidates. The State Government also made
nominations of a number of candidates to Regional
Engineering Colleges and engineering institutions outside
the State.
And now these writ petitions. Learned counsel for the
petitioners states that the several grounds on which the
Medical Group of writ petitions were founded can constitute
the basis of these writ petitions also and has adopted the
submissions made by learned counsel in those cases. Those
grounds have already been dealt with earlier by us and we
need not reiterate our observations and findings in respect
of them. Learned counsel has in addition taken certain
further grounds in support of the present petitions. He
points out that the Selection Committee took into account
the behaviour, physical bearing and power of oral expression
of the candidates during the viva voce test for the purpose
of awarding points under the head "General Intelligence". In
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doing so, learned counsel urges, the Selection Committee
gave importance to considerations which were not only vague
but were wholly irrelevant for the selection of candidates
to the Engineering Course. It is contended that the
behaviour, physical bearing and oral expression of a
candidate can hardly be relevant for assessing his
intelligence and suitability for the Engineering Course. We
are unable to agree. In our opinion, if a viva voce test is
permissible for the purpose of adjudging the general
intelligence of the candidates, there can be no doubt that
the three components mentioned earlier would have some
relevance. Presence of mind and expression can be considered
as components of general intelligence. The presence of mind
displayed by a candidate in answering a question is an index
of general intelligence, and his power of oral expression is
evidence of his ability to communicate intelligently. The
third component, physical bearing, possesses a somewhat
remote connection with general intelligence. But we may
suppose that by physical bearing what is
578
meant is the physical manner in which the candidate responds
to the stress and tension experienced by him during the
interview. It is a weak component, but even though tenuous
it is not so unrelated to general intelligence that we
should strike it down as unreasonable element in deciding on
a candidate’s suitability. We now enter the realm of
admissions made by learned counsel for the State, who
conceded that the selection of certain specified candidates
could not be supported.
Five candidates, Abdul Rashid Dhobi, Roohi Firdous
Adhami, Rais Ahmed Zargar, Shabir Durrani and Zahoor Ahmad
Sheikh, were among those selected for admission to the first
year B.E. Course in the Regional Engineering College at
Srinagar for the session commencing in 1984-85. It is
apparent that on the basis of their result during the
selection examination they were not entitled to admission. A
number of writ petitions were filed in the High Court of
Jammu and Kashmir challenging the validity of the selection
for admission to the aforesaid course. During the hearing of
those writ petitions, counsel who appeared for the State
Government and the Selection Committee, made a statement in
Court conceding that the aforesaid five candidates were not
entitled to admission because of their inferior merit and
that an error had inadvertently been committed in including
their names in the Select List. The High Court, by its
judgment dated March 20, 1985 took the concession into
account and set aside their selection. The five candidates
have filed Special Leave Petition (Civil) No. 5197 of 85 in
this Court, but after carefully examining the matter we find
that the concession made by counsel for the State before the
High Court was perfectly justified. Accordingly, the Special
Leave Petition is liable to be dismissed. There are thus
five vacancies on this account.
Five names were added to the Select List to fill up the
aforesaid vacancies. They were candidates who had been
nominated to Engineering Colleges outside the State, but had
been unable to join there because they were late in doing
so. In consequence they were admitted to the Regional
Engineering College, Srinagar. These candidates are Abdul
Mateen Sherwani, Parvez Ahmed, Rajinder Kaul, Shanker Singh
and Sanjay Razdan. It is not clear whether these five
candidates who have now
MANOHAR
579
been admitted to the Regional Engineering College, Srinagar
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would have been entitled to do so on the basis of their
merit in the Select List. Their admission is liabe to be
quashed unless they have been selected by virtue of their
merit in the Select List and but for the erroneous inclusion
of the five candidates, Abdul Rashid Dhobi and the others,
would have been included in the Select List. If one or more
or such candidates does not hold a position of merit
qualifying him or them for such selection, the candidates
who are qualified by virtue of their position in order of
merit are entitled to be admitted to the Regional
Engineering College, Srinagar.
The Government of the State of Jammu and Kashmir
nominated eight other candidates to seats in Engineering
Colleges outside the State. They are Ghulam Hassan Mir,
Sudhir Kumar Tukra, Sahab Ji Kachroo, Niraj Kumar Gupta,
Mahmood Ahmed, Avneet Kumar, Mohd. Bashir Khan and Abdul
Rehman. As Abdul Rehman declined the offer his place has
been filled by Maqbool Hussain. There is no dispute that
they could not in law be nominated by the State Government
having regard to what was laid down by this Court in Suman
Gupta & Ors. (supra) (as clarified by this Court by its
Order dated September 22, 1983). Their nominations are
liable to be quashed. Additionally, a candidate Arshad
Hussain Wani was also nominated to a seat in an Engineering
College outside the State. It is conceded by learned counsel
for the State that the nomination of Arshad Hussain Wani
cannot be supported. Accordingly that nomination is also
liable to be quashed. In the circumstances the State
Government must nominate candidates in place of the
vacancies so arising in accordance with the law laid down by
this Court on the basis of the merit list which was in force
in the State on the date when the impuged nominations were
made.
Eight candidates selected for admission to the Regional
Engineering College, Srinagar did not join or having joined
did not continue there. To fill the eight vacancies so
arising eight other candidates were selected for admission
to the Regional Engineering College, Srinagar. me inclusion
of those names is also liable to be quashed unless the
nominations have been made in accordance with law by virtue
of their merit in the Select List and who, if the eight
persons who were selected but did not join or continue in
the Regional
580
Engineering College, Srinagar had not been selected, would
have been included in the Select List. If one or more of
such candidates does not hold a position of merit qualifying
him or them for such inclusion the candidates who are
qualified by virtue of their position in order of merit are
entitled to admission to the Regional Engineering College,
Srinagar.
Ten candidates were nominated by the State Government
to Engineering College outside the State on October 27,
1984, but all those ten nominations, as averred in the
Counter Affidavit filed by the Chief Minister, have been
cancelled by him pursuant to the law laid down by this Court
in Suman Gupta and Ors., (supra) (as clarified by this Court
by its Order dated September 22, 1983).
Some candidates were nominated for admission to the
Five Year Engineering Course of Studies. It is apparent that
their selection was made arbitrarily and they could not be
treated as constituting a separate category. We are informed
that other candidates, while applying for admission to the
Four Year Course of Studies, also applied for the Five Year
Course of Studies and their claim was not considered. It is
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conceded by learned counsel for the State that the selection
of the candidates to the Five Year Engineering Course of
Studies cannot be supported. Accordingly the selection of
candidates for admission to the Five Year Course of Studies
in Engineering Colleges outside the State is liable to be
quashed.
Finally the petitioners, Sanjeev Kumar Handoo, in Civil
Writ Petitions Nos. 428-32 of 1985, does not press for
relief inasmuch as he has been admitted to a Medical
College, and therefore, the Writ Petition filed by him is
liable to be dismissed as withdrawn.
P.S.S. Petitions dismissed.
581