QAZI YUSRA ASLAM Vs. STATE
LAWS(J&K)-1993-9-6
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 14,1993

Qazi Yusra Aslam Appellant
VERSUS
STATE Respondents


Referred Judgements :-

BSWABAHAN V. GOPEN CHANDRA [REFERRED TO]
BUDHAN CHOUDHARY VS. STATE OF BIHAR [REFERRED TO]
A.K. KARIPAK VS. UNION OF INDIA [REFERRED TO]
PRAKASH CHANDRA PATHAK VS. STATE OF UTTAR PRADESH [REFERRED TO]
RAM KRISHNA DALMIA SHRIYANS PRASAD JAIN JAI DAYAL DALMIA VS. UNION OF INDIA [REFERRED TO]
DIRECTOR OF RATIONING AND DISTRIBUTION VS. CORPORATION OF CALCUTTA [REFERRED TO]
P VAJRAVELU MUDALIAR MOST REV DR L MATHIAS VS. SPECIAL DEPUTY COLLECTOR FOR LAND ACQUISITION WEST MADRAS [REFERRED TO]
STATE OF MADHYA PRADESH VS. THAKUR BHARAT SINGH [REFERRED TO]
B SHAMA RAO VS. UNION TERRITORY OF PONDICHERRY [REFERRED TO]
E P ROYAPPA VS. STATE OF TAMIL NADU [REFERRED TO]
ERUSIAN EQUIPMENT AND CHEMICALS LIMITED UNION OF INDIA VS. STATE OF WEST BENGAL:A K MITHIBORWALA [REFERRED TO]
MANEKA GANDHI VS. UNION OF INDIA [REFERRED TO]
MOHAMMAD RASHTO AHMAD ASHFAQ HUSSAIN VS. STATE OF UTTAR PRADESH [REFERRED TO]
RAMANA DAYARAM SHETTY VS. INTERNATIONAL AIRPORT AUTHORITY OF INDIA [REFERRED TO]
AJAY HASIA VS. KHAUID MUJIB SEHRAVARDI [REFERRED TO]
SUMAN GUPTA VS. STATE OF JAMMU AND KASHMIR [REFERRED TO]
KAUSALYA DEVI BOGRA SYED YUSLJFUDDIN SYED ZIAUDDIN VS. LAND ACQUISITION OFFICER AURANGABAD:STATE OF MAHARASHTRA [REFERRED TO]
ASSISTANT COLLECTOR OF CENTRAL EXCISE CHANDAN NAGAR WEST BENGAL VS. DUNLOP INDIA LIMITED [REFERRED TO]
A R ANTULAY VS. R S NAYAK [REFERRED TO]
ASIF HAMEED STATE OF JAMMU AND KASHMIR RAJEEV MAHAJAN JYOTI KUMARI VS. STATE OF JAMMU AND KASHMIR:RAJEEV MAHAJAN:STATE OF JAMMU AND KASHMIR:STATE OF JAMMU AND KASHMIR [REFERRED TO]
VIKRAMJITSINGH VS. STATE OF MADHYA PRADESH [REFERRED TO]
UNION CARBIDE CORPORATION VS. UNION OF INDIA [REFERRED TO]
INDRA SAWHNEY VS. UNION OF INDIA [REFERRED TO]
P SAGAR VS. STATE OF ANDHRA PRADESH [REFERRED TO]
V PUNNEN THOMAS VS. STATE OF KERALA [REFERRED TO]
DATTATRAYA MOTIRAM MORE VS. STATE OF BOMBAY [REFERRED TO]


JUDGEMENT

- (1.)PERSISTENT defiance of the court directions and conferment of largeses upon the privileged few by the respondents are the main contentions required to be adjudicated upon by this court in these petitions which are directed against the selection and nomination of candidates to MBBS/BDS courses in the state medical colleges and colleges outside the state of Jammu and Kashmir. It has been noticed by this court and the Apex court on various occasions that the respondents have been making selection and nomination of candidates to the aforesaid courses without adopting the procedure already prescribed or directed to be followed as per directions of this court. Selection/ nomination to the professional courses have many a times invited wrath of the courts but without any positive effect upon the respondents particularly the competent authority entrusted with the job of making selection to the aforesaid courses. Persistent and consistent defiance of the court directions has created a sense of insecurity among the competing candidates in this strife torn state engulfed in the crisis of militancy for which the conduct and the manner of selection adopted by the respondents is stated to be a contributory factor. It is high time for this court and the authorities of the respondents state entrusted with the job of making section to follow a procedure which is not tainted with any inherent defective system and is free from the bias attributed to the respondent authorities.
(2.)SOME of the facts relevant for adjudicating the disputes between the parties in these petitions are; that vide 1991 notification No; 2/MBBS/BDS/CAEE of 1991 dated 9th July/1991 the respondent/competent authority invited applications from eligible candidates for admission to the entrance test for selection to the MBBS/BDS course in Govt. Medical College at Jammu and Srinagar. The petitioners who claimed to be eligible are admitted to have applied for being selected to the said courses on the basis of entrance test to be held and conducted by the competent Authority in accordance with the prescribed procedure and the judgment issued by this court. The respondent competent authority issued a brochure styled as "information Brochure of Entrance Test for admission to MBBS/BDS/ Courses 1992 -93 which provided that the conduct of the examination would be governed by the rules and regulations given in the brochure and those specified by the Govt. of Jammu and Kashmir vide SRO -203 of 1991 and other relevant SRO and Govt. orders issued from time to time. The candidates who were to apply for consideration under the "open Merit category were required to have passed Higher Secondary Part; II/TDC (I) 10+2 Higher Secondary Examination from a Recognised statutory Board/University with English, Physics, Chemistry and biology having obtained not less than 50% marks in aggregate. The merit was to be determined on the basis of criteria laid down in Para 12 of the said brochure. The competent authority was to prepare a waiting list of candidates in order of merit for open merit and reserved categories which was to become operative in case of vacancies caused by whatsoever reasons. The question papers were to be multiple choice questions only and each MCO was to be followed by four options out of which only one was to be correct or most appropriate. For each correct answer marked in the answer sheet, candidates were to get one mark and in case of two more candidates found to have obtained equal overall merit the interse merit of such candidates was to be determined in order of preference as given here under; i) candidates obtaining higher marks in biology; ii) candidates obtaining higher marks in biology and chemistry in aggregate; iii) candidates older in age to be preferred if marks in terms of paras (i)& (ii) were equal, The entrance test was to be conducted as per standards of qualifying examination and according to syllabus prescribed by the competent authority. All eligible candidates were issued admit cards and identification cards under roll number supplied by the competent authority, the competent authority vide notification dated 26 -9 -91 published in the local papers on 27 -9 -91, issued selection list of candidates for admission to the aforesaid courses in the Govt. Medical College, Srinagar and Jammu for the year 1991. It is alleged that the select list for sports category and the waiting list as required were not issued. At the time of selection 170 candidates were shown to have been selected for the two colleges in the state in the open merit, and reserved categories which included 87 male and 83 female candidates. It is contended that in view of increase in the number of seats respondent No; 2 proceeded to issue a revised select list of candidates vide, its notification dated 11 -10 -91 and upon the basis of re -valuation selected 191 candidates including 95 male and 96 female candidates against the open merit and various reserved categories. It is alleged that many of the candidates who had attained inferior merit than the petitioners had managed the improvement of their results to the disadvantage of the petitioners. It is further contended that while issuing the select list and revised select list, actual intake capacity and the availability of the infra -structure facilities in Medical Colleges of the state was not considered. It is submitted that the Medical College, Srinagar, in particular has all a long remained fully equipped with entire infra -structual facilities including teaching faculty, library, space scientific equipments of high standard justifying admission to more than 150 candidates every year in the MBBS course. It is contended that in July 1987, the state Govt. appointed a Committee in order to examine the possibility to admit addition of 75 students in the two medical colleges functioning at Srinagar and Jammu and subsequently approached the Medical Council of India (MCI for short) requesting them to arrange the inspection of the two medical colleges with a view to increase the number of seats. The inspectors reported by the MCI are stated to have visited the Srinagar and Jammu from 10th to 12th August 1987 After considering the report of the inspectors the increase in the number of seats was authorised from 75 seats to 100 in Medical College, Srinagar and from 50 to 75 in Medical College, Jammu the MCI stated to have further authorised the increase in the case of Medical College, Jammu from 75 to 100 on the basis of the request and recommendation made by the Government. The petitioners have tried to impress that the intake capacity of the Medical College Srinagar to the extent of 150 seats is justified but the selection was never made by the respondents to that extent. It is submitted that the practice adopted by the respondents for the past years has shown that apart from the admission granted under the orders of the court they have also been accommodating their alleged blue eyed persons for extraneous considerations under the influence of power and wealth and that too secretly and mysteriously. It is submitted that the select list prepared by the competent Authority came under heavy attack on account of alleged grant and serious irregularities and bunglings with the result that a spokesman of the competent authority made a statement to the press to the effect that all apprehensions were unfounded. On 4 -10 -91, the chairman of the competent authority issued a statement to the press declaring that the select list shall suitably be revised after re -evaluation of the papers about which there were complaints that the same were out of the prescribed course. The competent authority is stated to have found 12 questions out of the prescribed syllabus which were directed to be deleted in case of all candidates irrespective of the fact whether they had attempted the questions or had answered correctly. No details of the questions so deleted was conveyed or communicated to the petitioners or notified for the information of the general public. The petitioners claim that they had a right to know as to whether the deletion was properly done or as to whether the question within the syllabus had not been deleted. The deletion of question is stated to have been kept by the respondents as a guarded secret arbitrarily and illegally which adversely affected the whole of the result of selection. Respondent No; 2 is alleged to have unauthorisedly applied the so called rule of deletion of questions which is stated to be in violation of the information brochure and the actual syllabus prescribed. It is again contented that the convenor of the competent authority Prof. K. L. Bhardwaj even admitted that the questions stated to be out of course were, in fact, not out of syllabus. It is alleged that the respondents have illegally, arbitrarily, unjustly and unfairly without any authority resorted to the major departure in setting of the question papers contrary to the pattern and weightage given in the brochure thereby exposing the petitioners to very grave, serious prejudice and handicaps. Not content with the arbitrary selection made, the respondents are alleged to have proceeded to nominate some candidates for admission to the MBBS course in medical colleges outside the state of J&K. The nominations are stated to have been made according to the whims and caprice of the respondents without providing any guide lines or criterion and in total disregard to the preferential claims of the petitioners. It is contended that some of the candidates nominated had not even appeared in the entrance test. It is submitted that the nomination of candidates was kept a guarded secret but on the basis of information received it was found that the children of next of the kin of Mr. Vijay Bakaya, Commissioner/Secy, to Govt. Health and Medical Education Department Mr. G.A Lone Secretary to Govt. Law Department Mr. M.S. Magery Managing Director, State Financial Corporation, Mr, S.K. Sharma Addl, Secretary to Govt. Training, Mr. S.D. Gupta P.A to Commissioner/Secy, Housing Deptt. Mr. B.A. Dar SSP Control Room, Mr. Farooq Nazki, Director, Radio Kashmir, Sgr Syed Gh. Nabi Dy. Director of Information, Moulana Mohd, Syed Masoodi a vetern political leader, Mr. G.D. Sharma Distt & Session Judge, and Shri. Wali Mohd Itoo, Former speaker of the J&K Legislative Assembly were nominated to various colleges outside the state of Jammu And Kashmir, It is submitted that the impugned selection/nomination being arbitrary and bereft of any legal sanctity are required to be quashed. It is alleged that the selection is violative of the mandate of equality and fairness as enshrined in Article 14 and 16 of the constitution of India. The impugned selection is also stated to be mala fide based upon improper exercise of power in as much as the respondents despite of having put the questions in the question papers which otherwise were within the prescribed syllabus, have proceeded to treat them as out of course and deleted them despite the fact that the same ,had been correctly replied by the petitioners. The whole of the selection is also required to be set aside being violative of the provisions of Art. 15 of the Constitution of India and non -compliance of the directions issued by this court in the case entitled Farooq Ahmed Bacha and others Vs. State of J&K and others decided by a Division Bench of this court on 10 -6 -88 and upon difference of opinion on some issues by the third Judge vide his order dated 21 -11 -88. It is submitted that while deciding the Bachs Case Supra) one of the Judges of the Division Bench (Mr. Justice M.L Bhat) even though approved the reservation made in favour of the female candidates yet held that in tie absence of any data or survey the reservation in favour of the females to the extent of 50 percent was excessive. The other judge comprising the Division Bench (Sethi J) agreed with Bhat J. and held that the reservation made in favour of females was arbitrary which was not based on any intelligible criteria or differentia. It was also held that the reservation was not based on any data nor was any survey conducted by the state to find out the actual requirement of female doctors if their number was not adequate to the present or future need of the female population. It was further held that without there being complete details, state could not at rendum make reservation to the extent of 50 percent. It was held that the SRO making reservation besides being non existent was void and ultravires piece of administrative action which was directed to be quashed. When the matter was referred to the third judge in terms of Rule 23 of the J&K High Court Rules, the Division Bench being in agreement on the question of reservation did not refer the point to the third judge for his opinion. The third judge (Honble Dr. A.S. Anand) the then Chief Justice of the state is stated to have not given any opinion regarding the reservation made in favour of the female candidates. It is submitted that the findings regarding reservation in favour of female candidates to the extent of 50 per cent had become final which was to be acted upon by the respondents. As the selection is stated to have been made in violation of the court directions, same is alleged to be against the provisions of law. The petitioners have challenged the proviso (1) to Cl. (3) of SRO -203 of 1991 which according to them is the incorporation of SRO -460 -A of 1987 and is claimed to have already been quashed by a Division Bench Judgment of this court and confirmed by the Supreme court.
(3.)AFTER admitting some of the petitions, a learned Single Judge of this court vide order dated 12 -3 -92, referred the cases to be heard by a Division Bench after formulating some important questions of law required to be authoritatively pronounced. In his order of reference dated 12.3.92 the learned Single Judge (Honble Razvi J) directed; "In the above mentioned writ petitions, the selection to MBBS course for the session 1991 -92 has been challenged in all of which the following questions of law have been raised. I/ Whether after the quashment of reservation for the female candidates by a Division Bench of this court in its Judgment given in writ petition No; 468/87 and upheld by the Supreme court, it was still open to the state Government to incorporate such a provision in SRO No; 203/91 without making any fresh survey and without any basis? 2/ Whether it is open to the state Govt. to make nomination of candidates to Medical Colleges outside the state of J&K without following the man -date of law has laid down by the Supreme court in the case of Suman Gupta V. State of J&K, 3/ Whether the competent authority as empowered to change the Criteria for selection after declaration of the results of the entrance test and delete certain questions, from marking?
/ Whether the Government is bound to increase the intake capacity of the Govt. Medical College Srinagar also on the basis of the increase in case of Govt. Medical College Jammu?



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