KULDIP SINGH - (1.) SPECIAL leave is granted in all these petitions.
(2.) THE selection to the MBBS/BDS course for the session 1988-89 in the two Government medical colleges of Jammu and Kashmir has been set aside in a bunch of writ petitions by a Division Bench of Jammu and Kashmir High Court on the following grounds : - (i) THE selection was not held in accordance with the directions of the said court given in an earlier case Jyotshana Sharma v. State of Jammu and Kashmir, decided on 17th of April, 1989 (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 l7th of October, 1988. Under the said order, competent authority, 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 selection was invalid. The State of Jammu and Kashmir and the selected candidates have challenged the above judgment of the High Court in these appeals. Some of the unsuccessful petitioners before the High Court have also raised various additional grounds of challenge to the selection. Although various arguments have been advanced by the learned counsel for the parties which we propose to examine but the primary question for consideration in these appeals is whether the High Court has the competence to issue directions to the State Government to constitute "Statutory Body" for selections to medical colleges and whether the selection made by any other authority is invalid on that ground alone.
(3.) THE necessary facts to understand the controversy are as under :- Jyotshana Sharma and a number of other unsuccessful candidates for admission to the two medical colleges of Jammu and Kashmir for the year 1986-87 challenged the selection by way of large number of writ petitions. A Division Bench of the High Court by its judgment dated 17/04/1987 upheld the selection in general but allowed some individual writ petitions on different grounds. THE Bench, after adjudicating upon the points involved in the writ petitions, made the following observations : - "Before parting with these writ petitions, we would like to say something about the process of selection and about the safeguards required to be made by the authorities about the reservation of some categories. In future State Government shall entrust the selection process of the two medical colleges to a statutory independent body who will be vested with the power to conduct examination of written as also of viva voce." "... . THE need to have a statutory body for making the selection and for conducting the competitive test has arisen because the candidates every year and this year also had made grievance about the General Department being associated with the selection process of the- candidates. It is generally felt that General Department is a branch of the administration and is under the direct influence of the administrator THErefore, fairness and objectivity of select cannot be achieved unless selection is ensue to be done by some independent body free from executive influence. We have considered this argument and examined the matter in all its aspects ... THErefore, it is ideal that an independent 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 influence. At any rate we do not approve Training Branch, or any other department of the State Government under the control of Administration or associated with the process of selection for the. MBBS/BDS course in the State Medical Colleges. Selection Committee, till a statutory 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 by associated. For evaluation of the answer scripts till a scientific method of setting up of independent 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 and Kashmir." Consequent upon 'the aforesaid directions the State Government issued an order by a notification SRO 291 dated 18th of May, 1987 called the Jammu and Kashmir Government Medical Colleges (Selection of Candidates for Admission to First Year MBBS/BDS Course and other Professional Courses) Procedure Order, 1987 (hereinafter called SRO 291).;