JYOTIPRAKASH PANI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Two elected members to the Legislature, one to the Orissa State Legislative Assembly and holding the office of Minister and another elected to Parliament, have overstepped their limits of functioning and have interfered in the matter of selection for admission into Bachelor of Ayurvedic Medicine and Surgery Course (in short, 'BAMS course') in Government Ayurvedic Colleges, allege the petitioners.

(2.) THE background facts as highlighted by them are that the petitioner along with hundreds of others sought admission into two Government Ayurvedic Colleges, namely, Gopabandhu Ayurved Mahavidyalaya, Puri and Government Ayurvedic College, Bolangir for undergoing BAMS course relating to the academic year 1992 -93. Applications for admission were invited on the basis of prospectus issued which inter alia stipulated the guidelines for admission, requisite qualification, age, reservation of seats, procedure of selection and many other relevant aspects. Clause 7 (b) of the prospectus clearly stipulated that the basis of selection shall be merit alone. The management of each college vests on the Principal of the respective college subject to overall control of the Director, Indian Medicines , and Homeopathy, Orissa having its office at Bhubaneswar. Out of thirty seats in each of the above two colleges, 6% is reserved for the children of green card holders, 8% and 12% respectively for candidates belonging to scheduled caste and scheduled tribe, 1 seat for physically handicapped person and 1 seat for nominee of the Government of India. In other words 21 seats belong to unreserved category while 9 seats are earmarked as reserved seats. A committee for selection was formed with the Director, Indian Medicine and Homeopathy. Orissa (opp. party No. 2) as Chairman and both the Principals as members, in terms of paragraph 7 (a) of the prospectus. Undisputedly the petitioners were applicants. The criteria followed for selection, was on the basis of career marking. Though this was not a drescription in the prospectus, but to get meritorious students the career marking system was adopted. The minimum academic qualification prescribed was that a candidate should have passed +2 Science examination. So far as Puri College is concerned, on the basis of marks secured at the relevant examination and the career marking, 29 candidates were asked to take admission by 29 -9 -1992. Intimations in this regard were sent on 23 -9 -1992. On 29 -9.1992, 20 candidates turned up and took their admission. Thereafter a waiting list of 40 candidates was prepared for the remaining seats. Intimations were issued in batches and 7 candidates were given admission on five different dates. As a result three seats including the reserved seat of the Central Government remained unfilled. On 28 -12 -1992 the Director (opp. party No. 2) in his capacity, as Chairman issued a letter to the Principal to hold a spot selection with due notice in the notice board in addition to the intimation. On 28 -12 -1992 no spot selection was held and on the contrary opposite party Nos. 5 and 6 were admitted. It is not in dispute that neither the petitioners nor opposite party Nos. 5 and 6 were in the waiting list. It is also not in dispute that opposite party No. 5 is less meritorious than both the petitioners, and opp. party No. 6 is more meritorious than petitioner No. 2 although she is less meritorious than petitioner No. 1, Jyoti prakash Pant on the basis of career marking and marks secured at the relevant examination. Petitioners allege that the selection of opposite party Nos. 5 and 6 was only on account of political pressure put by the Minister, Health and Family Welfare, and Member of Parliament, Puri Loksabha Constituency.

(3.) ALTHOUGH the doctrine of separation of power has not been recognised under the Constitution in its absolute 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 places implicit trust on the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. While exercise of powers by the legislature and executive Is subject to judicial restraint, the only check on judicial exercise of power is the self -imposed decision of judicial restraint. Frankfurter, J. of the Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles (1958) 356 US 86 observed as under: 'All power is, in Madison's phrase, 'of an encroaching nature', Judicial power is not immense against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self -restraint... Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of prudence -requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce.' The judiciary observes a fastidious regard for limitations on its own power, it restraints from entering upon the areas which are more politic in nature The Executive and the Legislature are obligated not to encroach upon areas which are foreign to their limits of exercise We are not in a position to know for certain as to what had prompted the Minister and the Member of Parliament' to embark upon an enterprise which was certainly not within their functional domain because they are not parties before us. However, in the counter affidavit filed by the State and its functionaries, it is accepted that the cases of opp. party Nos. 5 and 6 were sponsored by the Minister and the Member of Parliament and as a result the said opposite parties have got admission into the institution, which otherwise they could not have got. From the records we find that the Minister has passed the following order on an application relating to Biswaranjan Pradhan (opp. party No. 5). 'Principal, Gopabahdhu Ayurvedic College, Puri. Please see that Shri Pradhan gets admission into your Institution. Sd/ - 17 -12 -1992 Minister Health & Family Welfare; Orissa' This endorsement of the Ministers a letter addressed to him is placed at page 131 of the records produced, before us. Though there is no written recommendation of the Member of Parliament, Puri, available on the said record, we find that;opp. party No. 6 has given her address as C/o. B. K. Tripathy, M.P. Tiadisahi, Puri town, Puri. As indicated supra. we are not able to know the background in which the recommendations were made as the recommenders are not parties before us. Had they been impleaded, the background, purpose and desirability could have been explained. They could have also either accepted or denied the recommendation. We have before us the affidavits of ppp. party Nos. 1 to 3 wherein it has been accepted that the, cases of opp. party Nos. 5 and 6 were sponsorod. We proceed on the basis of that acceptance. It is sometime considered wise not to ask questions, so as not to hear lies. If the Minister and or the Member of Parliament have pressurised and/or directly or indirectly instrumental in the irregular admission, the action is deplorable. Admissions in educational institutions should on the basis of merit alone and not on the ground of political patronage. If the reverse happens, meritorious students without political god fathers and patrons shall not get admission. In their place intellectual pigmies with political pull and patronage shall get admission. That will affect the educational system.