SHAMIM AKHTAR Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioners who passed their Pre -Medical (1st Year T. D. C.) from the Jammu and Kashmir University in the year 1969 obtaining 304 and 315 marks respectively and who were applicants for admission to the first year of the Medical degree course of the Medical College, Srinagar, for the session 1969 -70, but were not selected have moved this Court under Article 32(2 -A) of the Constitution of India and Section 103 of the Constitution of Jammu and Kashmir challenging the direction (to the Selection Committees) contained in clause (IV) of the Notification No. 352 -GD of 1969 dated February 12, 1969 to exclude from consideration the marks, if any, obtained by the candidates in Practical Examinations in Science subjects in determining their inter se academic merit for admission to the various training institutions and colleges and the selection made including that of respondents Nos. 4 to 20 as arbitrary, unreasonable, discriminatory, against the principles of fair -play and justice and violative of Articles 14 and 15 of the Constitution. It is also averred by the petitioners that the aforesaid direction was unfair and malafide as it was meant to over -look the merit of deserving candidates and push up undeserving candidates on the basis of nepotism, that the said direction was not founded on any reasonable basis and had no connection with the object sought to be achieved namely the suitability of the candidates for admission to the professional or technical institutions, that the practicals in Chemistry and Biology are particularly of importance for the candidates who have to study the M. B. B. S. course and the exclusion of big chunk of marks obtained by the candidates in the practical examinations in science subjects in the qualifying examination is unreasonable and arbitrary, that the selection made on the aforesaid basis is farcical, illegal, and repugnant to the constitution as it enabled the Selection Committee to plump the marks in such a way so as to convert merit into demerit and demerit into merit and that the Government in giving the direction traversed beyond the rules laid down by the Supreme Court in Chhetarlekha V. State of Mysore, A. I. R. 1964 S. C., 1823 and the State High Court in Subash Mohan Jalali -and others Vs. Principal Medical College and others, AIR 1967, J&K 106. It has been further contended by the petitioners that the aforesaid direction issued by the Government to, the Selection Committee set up for the purpose of selecting candidates for the M.B.B.S, Course is also violative of the letter and spirit of the Regulations adopted, by thee Indian Medical. Council prescribing the minimum qualifications for admission to the Medical Course.

(2.) IN the affidavit filed on behalf of the State in reply to the petition, Shri H. R. Sharma Secretary to Government, General Department, while admitting that the petitioners fulfilled the basis requirements of age and qualification for admission to the aforesaid course, has inter alia averred that neither the impugned clause of the Notification nor the selection made on the basis of the recommendation of the Selection Committee appointed by the Government -was arbitrary, discriminatory, unfair, unreasonable or violative of Article 14 and 15 of the Constitution of India, that it was wrong to say that respondents Nos. 4 to 20 had obtained lesser marks than both the petitioners, that all the said respondents had secured higher percentage of marks in the theory papers of the Science Subjects, that the criterion laid down by the Government in order No. 352 of 1969 dated February 12, 1969 for selection of candidates was neither meant for any malafide or oblique purpose as alleged nor was it against the principles laid down in the decisions alluded to by the petitioners but was objective, just, fair, reasonable and uniform and was completely adhered to in all cases and the candidates who secured the highest marks amongst the interviewees were selected, that there being complaints from a large number of persons that the marking in the practicals of the qualifying examination was not fair and that the marks were plumped in favour of influential examinees in order to give them undue advantage over deserving and un -influential examinees, the Government in order to make the selection unquestionable and above suspicion decided to exclude the marks obtained by the candidates in the practical examinations by the interviewees, that the regulations adopted by the Indian Medical Council are neither sanctioned by the Central Government nor have they any statutory force, that there has been no departure from the regulations even though they had no binding or statutory force, that so far as the question of eligibility for admission to the medical college was concerned 45% of the aggregate marks including the marks in the theory and practicals obtained in the qualifying examinations were taken into consideration, and that the candidates had been selected on the basis of the merit list prepared by the Selection Committee.

(3.) THE petition came up for hearing in the first instance before Jalal -ud -Din J. who by his order dated May 6, 1969, referred it to this bench as in his opinion it involved important points of law and the constitution.