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PETITIONER: CHARLES. K. SKARIA

       Vs.

RESPONDENT: DR.C.MATHEW

DATE OF JUDGMENT19/03/1980

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S.

CITATION:  1980 AIR 1230            1980 SCR  (3)  71  1980 SCC  (2) 752

ACT:      Constitution  of   India  1950,  Articles  14  and  15- Admission to  Post Graduate  degree and  diploma  course  in medicine-Reservation Quota  of 2%  of total  number of seats for  candidates   from  entire   country  minus  Kerala-Such reservation-Whether valid.

HEADNOTE:      The Kerala State runs three medical colleges with post- graduate  degree   and  diploma   courses  in   two  of  its Universities (Trivandrum and Calicut). The selection is made from among  candidates guided  by the  prospectus issued  in this behalf and the Selection Committee makes the selection. The principal  of the Medical College, Trivandrum, being the convener thereof.  A notification  inviting applications was published in  the Gazette  dated 27-2-1979  wherein the last date for receipt of application for the post graduate course in ophthalmology  was set down as March 31, 1979. Candidates were considered  on the  basis of  their merit,  marks being allotted for  various attributes including military service, membership of  the Scheduled  Castes and Tribes, and holding of medical  diplomas. The competitive marks provided for 10% to diploma  holders in  the selection  of candidates to M.S. and  M.D.   courses  in  the  respective  subjects  or  sub- specialities.      The Kerala  State provided  a quota  of 2% of the total number of seats for candidates from the entire country minus Kerala.      While clause  12 of  the prospectus  frowned upon  late and/or  defective  applications,  clause  13  provided  that attested  copies   of  the   statement  of   marks  at  each professional examination and those of other documents should be attached with every application.      The Special  Secretary to  the State  Government  in  a communication to  the Selection  Committee informed  that as the result  of the  Diploma Course  conducted by the Medical College, Trivandrum  would not  be available before the last date for  the receipt  of applications, 10% weightage may be given to  the concerned applicants, subject to the condition of production of the Diploma Certificate before finalisation of the selection to the post-graduate course.      The number of seats for the post-graduate degree course

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in Ophthalmology  available for  the year 1979-80 was six of which  one   belonged  to   Schedule  Caste/Scheduled  Tribe candidate, another  to a tutor working in a medical college. The State was left with four seats.      In the  Writ Petition,  the High Court held that one of the students,  Dr. Gopinathan  Nair, was so meritorious that none  challenged  his  admission,  and  that  there  was  no inherent lacuna or illegality in the communication Ex P 3 of the Special Secretary to the Selection Committee. In appeal, the Full Bench of the High Court, allowed the appeal holding that Ex P 3 cannot have the effect of over-riding the effect of clauses  12 and  13 of  the prospectus  and  quashed  the selections made on the basis of the rank list for admission.      In the  appeals to  this Court  on the question whether the  2%  reservation  for  the  entire  country’s  candidate population from outside Kerala in the "Open Merit Pool", was valid, 72 ^      HELD:   1.    Principled   policy,    consistent   with constitutional imperatives  (Articles 14  and 15) must guide admissions to  courses in  higher professional education but Governments  and   Universities,   not   infrequently   take liberties  with  this  larger  obligation  under  provincial pressures and  institutional compulsions  and seek asylum in reluctant    pragmatism    mindless    of    hostility    to constitutionality. Nothing  is more harrowing for the Court, with increasing  litigation and  thereby forced  in to  slow motion and  unwilling to intervene in an administrative area than to  hamper the  strategic stages of educational process like admission  and examinations,  but  the  Justice  System cannot run  away from  hearing  and  deciding  questions  of unconstitutionality, especially when educational authorities shape policies,  change rules and make peace with the crisis of  the  hour,  ignoring  the  parameters  of  the  National Charter. Mistrust  of Government,  is  violative  of  comity between instrumentalities  and  is  not  permissible  unless substantiated by  facts. Suspicion  is the  upas tree  under whose shade  reason fails  and justice  dies. High Court has thrown the academic year in post-graduate Ophthalmology into disarray and even wastage. [74 F-H, 77 G-H]      2.   Welfare-oriented    judicial   process   must   be constructive in  its objective,  must be  geared to order as its goal  and must  pave the  way for resultant contentment, avoiding negative  writs which,  in practice,  prove  to  be congealing commands. [78 D-E]      3. In  the instant case, the High Court, on the crucial question, has  correctly stated  the law  regard  denial  of opportunity  for  ’outsiders’  and  consequently  found  the admission  to   the  courses  all  wrong,  but  through  its judgment, has  jettisoned students  who are half-way through their courses  and directed fresh admissions on new policies yet to  be evolved,  with little  chance of  any one getting through the  examinations or  even  admissions  during  this academic year. [78 E-F]      3. Whatever  might be  the passion  for correct law and provocation on  account of  governmental  indifference,  the Court must  use its power to correct error and promote order and not  strike down  an illegal error without going forward to affirmative  action which  may minimise injury generally. The judicial process, in its creative impulse, must hesitate to scuttle,  salvage wherever possible and destroy only when the situation is beyond retrieval. [79 D-E]      4. The  scheme  of  reservation  or  a  Paltry  2%  for candidates in the whole country outside the two universities

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of the  State has  not been  substantiated as  a  sufficient fulfillment of  Articles 14  and 15.  Fundamental rights  of candidates do  not depend  on the  grace of  governments and Indians are  not, aliens in their own motherland when asking for seats  on the score of equal opportunity. A host of good reasons may  weigh with  the state in formulating prefences, reservations and  other cases of choice provided they do not outrage  Arts.   14  and  15,  or  promote  the  process  of equalisation  as  a  dynamic  phase  of  equality.  What  is paramount is equal opportunity for each. [81 D-F]      State of  Kerala v.  V. M.  Thomas, [1976] 2 S.C.C. 310 referred to.      5. Law  in action  being a  healing art, the Court must strive to  avoid driving  out the  students half-way through their course  and to  see that  no costly  seat for advanced studies in  which the  community as  a whole  has a stake is wasted.  The  Court  should  not  give  up  the  search  for alternatives. [82 E-F]      6. There  is  nothing  unreasonable  nor  arbitrary  in adding 10  marks for  holders of a diploma. But to earn this extra 10 marks, the diploma must be 73 obtained  at   least  on   or  before   the  last  date  for application, nor  later. Proof  of having obtained a diploma is different from the factum of having got it. It is prudent to  produce   evidence  of   the   diploma   alongwith   the application, but  that is  secondary. Relaxation of the date on the  first is  illegal, not  so on  the second.  Academic excellence, through  a diploma  for  which  extra  marks  is granted, cannot  be denuded  because proof  is produced only later, yet before the date of actual selection. The emphasis is on the diploma, the proof thereof subserves the factum of possession of  the diploma and is not an independent factor. [84 D-F]      7. When  a statute  vests a public power and conditions the manner of exercise of that power then the law insists on that mode  of exercise  alone. It  is unconcerned  with that rule. A  method of  convenience for  proving possession of a qualification is  merely directory. Moreover, The prospectus itself permits  government to  modify the  method. There  is nothing objectionable  with the  government directive to the selection  committee,   nor  in  the  communication  to  the selection committee  by the  university, nor  even in  their taking into  consideration and  giving credit  for  diplomas although the  authentic copies  of  the  diplomas  were  not attached to the application for admission. [86 A-C]      8. Much  of hardship  and harassment  in Administration flows from  overemphasis on  the external  rather  than  the essential.  The   government  and  the  selection  committee rightly treated  as directory  (not mandatory)  the mode  of proving the  holding of diplomas and as mandatory the actual possession of  the diploma. The frustrating delay in getting copies of  degree was  by-passed by  the State Government by two steps.  Government informed the selection committee that even if they got proof or marks only after the last date for applications but  before the  date for selections they could be  taken  note  of  and  secondly  the  Registrars  of  the Universities informed officially which of the candidates had passed in  the diploma  course. The  selection committee did not violate  any  mandatory  rule  nor  act  arbitrarily  by accepting and acting upon these steps. [86 D-G]      9.  The   three  candidates  who  had  been  eventually admitted by  the selection  committee could  not  be  ousted merely for  the reason  that the  certificate of diploma had not  been   produced  together   with  the  application  for

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admission. Nor,  indeed, could  government  be  faulted  for issuing  a   directive  to   the  selection  committee  that applications from  students of  the diploma  course could be considered subject to the condition that they would "produce the diploma  certificate before  finalising the selection to post-graduate course". [87 A-B]      10. Though  appellant No.  I has  no legal  claim to  a seat,  the   overall   circumstances   merit   compassionate consideration and  the Court directed. The Kerala University and the  Indian Medical  Council directed  to permit  him to complete his  course by  adding one more seat, for this year only, to  the ophthalmic degree course. Marginal adjustments by increasing  one seat  more is  possible without injury to academic efficiency. [88 F-H]      11. Directed that the State of Kerala and the Principal of the  Trivandrum Medical  College, who  is the convener of the Selection  Committee, as  well as  the two  universities concerned, admit into the post-graduate ophthalmology course Dr. Naomi  and Dr.  Gopal Krishnan  for this  year. The  two applicants will  be accorded  admission on  their  reporting within ten days. [91 E-D]      State of Kerala v. Kum. T. P. Roshana [1972] 2 SCR 974: A. Periakaruppan  v. State  of Tamilnadu  [1971] 3  SCR  449 referred to. 74      12. The  2% open  seats for the candidates from all the Universities of  India outside  Kerala runs  counter to  the constitutional  directive   of  equal  opportunity  and  the preambuler emphasis on national integrity. The State will do well to  fashion a  formula in terms of the guidelines given by this  Court in  Dr. Jagdish Saran’s v. Union of India and others, [1980] 2 S.C.R. 831 [91A-G]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.641-644 of 1980.      Appeals by  Special Leave  from the  Judgment and Order dated 10-12-1979  of the  Kerala High  Court  No.  W.A.  No. 22/79, W.A. No. 245/79 and O.P. No. 1586/79.      P. Govindan Nair and A. S.Nambiar for the Appellants in C. A. No. 641 to 643/80.      M.M. Abdul Khader and V.J. Francis for the Appellant in C.A. No. 644/80.      T.S. Krishnamoorthy  Iyer and  N.  Sudhakaran  for  the Respondent No. 1 in C.As. Nos. 641 to 644/80.      The Judgment of the Court was delivered by      KRISHNA IYER  J., The  universities in  the country are often among the contributaries to the flood of litigation in the  higher   courts  of   the  country.  This  pathological condition, to  which the  healing attention  of the nation’s educational leadership.  The above appeals before us present challenges to  the scheme  of  admission  to  post  graduate courses in medicine in the colleges of the Kerala State. But since that State is not alone in the tendency to temporarian with constitutional  values and  writ petitions  for college admissions are  almost a  hardly annual, we deem it our duty to permit  ourselves a  few preliminary  observations before proceeding to the fact-situation and conflict-resolution.      Principled  policy,   consistent  with   constitutional imperatives (Arts.  14 and  15)  must  guide  admissions  to courses in  higher professional education but Government and Universities, not  infrequently  take  liberties  with  this larger   obligation    under   provincial    pressures   and

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institutional  compulsions  and  seek  asylum  in  reluctant pragmatism  mindless   of  hostility  to  constitutionality. Nothing is  more harrowing for the Court, over-burdened with increasing litigation  and thereby  forced into slow motion, and unwilling  to intervene  in an administrative area, than to hamper the strategic stages of educational processes like admissions and  examinations, but  the Justice system cannot run  away   from   hearing   and   deciding   questions   of unconstitutionality, especially when educational authorities shape policies,  change rules and make peace with the crisis of  the  hour,  ignoring  the  parameters  of  the  National Charter. We make these 75 observations driven by the painful experience of facing this situation year after year, from State after State. If higher education  bids   farewell  to  national  vision  and  equal opportunity-the two  fundamental criticisms  levelled before us in  these cases-what  hope is there for constitutionalism save surrender  to provincialism and lobby power leaving the fortunes of  students of  advanced  learning  to  litigative astrology annually  ? A  national consensus on this issue is long over-due  and we  venture to  suggest that the Union of India will  actively involve  the academic community and the States, and  put the  problem on  the urgent national agenda and  reach   solutions  constitutionally   permissible   and agreeable to  the  genius  of  the  States  vis-a-vis  post- graduate courses.  No State  nor University  can despise the Constitution nor leave in ’inglorious uncertainty’ or myopic ad hocism the career of its talented human resources.      Back to  the facts. The Kerala State runs three medical colleges with  post-graduate degree  and diploma  courses in two  of   its  universities   Trivandrum  and  Calicut.  The selection is  made  from  among  candidates  guided  by  the prospectus issued in this behalf and the Selection Committee makes the  selection, the  principal of the Medical College, Trivandrum,  being   the  convener  hereof.  A  notification inviting applications was published in the Gazette dated 27- 2-1979 wherein the last date for receipt of applications was set down  as March,  31, 1979. Candidates were considered on the basis  of their  merit, but  the concept  of  merit  was broadened in  such  manner  that  marks  were  allotted  for various attributes including military service, membership of the Scheduled  Castes and  Tribes, and, were relevant to the point  raised  in  the  present  case,  holding  of  medical diploma. One  of the post-graduate courses offered by two of the colleges  is  in  ophthalmology  and  we  are  concerned directly with  the competitive  claims among  the candidates for this  course only.  Right at the outset, we wish to make it clear  that we  confined  ourselves  to  the  comparative merits of the candidates for the post graduate degree course in Ophthalmology and do not wish to disturb any other course lest there should be upsets beyond what we intend.      The competitive  marks admittedly  provided for  10% to diploma-holders in  the selection  of candidates to M.S. and M.D. courses  in the respective subjects or subspecialities. We are not concerned with the other aspects of the selection process  such   as  percentages   in  favour  of  candidates belonging to  the scheduled  castes and tribes (10%). Again, 20% of  the seats  were set  apart for the teaching staff in the medical colleges.      One of  the bones  of contention between the parties in the High  Court  related  to  candidates  from  universities outside Kerala. 76      Articles 14  and 15 do not recognise state frontiers or

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the cult  of ’the  sons  of  the  soil’,  if  we  may  speak generally and over-simplistically. The necessary implication of the  constitutional mandate  is that  every basic degree- holder who  fills the bill can apply for admission for post- graduate courses.  But the  Kerala  State,  in  its  wisdom, provided a  niggardly quota  of 2%  of the  total number  of seats for  candidates from  the entire country minus Kerala- not a  catholic approach informed by nationalist generosity, if we  may say  so with some trepedition. By way of aside we may observe  that other  States,  observed  with  provincial impulses, are  equally parsimonious  is no  validation of  a violation of  law, if  it  be  so.  Anyway,  the  prospectus provided that  "instead of open competition, 2% of the seats under general merit are set apart for candidates coming from out side Universities other than Kerala and Calicut."      Another facet  of the  forensic right  before the  High Court  needs   to  be  mentioned  before  we  proceed  to  a formulation of  the issues  debated  in  this  Court.  While clause  12   of  the  prospectus  frowns  upon  late  and/or defective applications, clause 13 states:           Certificates to  be produced:-In  all  cases  true      copies of the following documents have to be produced:-      xx           xx                         xx           (k) Any other certificates required along with the      application. Clause 13  in the form of application for admission contains an explanation which deserves mention in this context:           NB: Attested  copies of  the statement of marks at      each  professional   examination  and  those  of  other      documents should  be attached  with every  application.      Here also  specify whether  a diploma  holder or having      Military service  or Rural  service  and  also  whether      certificates to this effect have been produced.                                             (emphasis added)      While  the   prospectus  is   a  fairly   comprehensive repository of  the directions issued by the State Government in regard  to  the  selection  of  candidates,  the  opening passage  in  paragraph  4  thereof  contains  the  following statement:           "The  selection   of  candidates   will  be   made      according to  G.O. Ms.  280/76/HD  dated  14-7-1976  as      modified from  time to  time which  shall be  deemed to      have incorporated ibid" 77 (This power  to modify is not arbitrary and can be exercised only   reasonably). Apparently in exercise of this power and making a realistic appraisal of the examination-situation in the Calicut  and Kerala  universities, the Special Secretary to  Government  issued  a  communication  to  the  Selection Committee, the  operative portion  whereof has  relevance to the discussion that is to follow:           It is  noted that the result of the Diploma Course      conducted in Medical College, Calicut will be published      before the  last date for the receipt of application to      the post-graduate  course,  while  the  result  of  the      students of  Medical College,  Trivandrum will  not  be      available  before   the  last   date  for   receipt  of      application to post-graduate course.           Thus the  students of  Medical College  Trivandrum      are placed  at a disadvantage, I am therefore to inform      you that it has been decided that applications from the      students of  the Diploma Course, Trivandrum may also be      considered and  that 10%  weightage may be given to the      post graduate  students of  Diploma course  in  Medical      College Trivandrum,  subject to the condition that they

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    will produce  the Diploma Certificate before finalising      the selection to post-graduate course. The learned  single Judge  who had  specially  examined  the Government file  in this  connection, with  an  eye  on  the legitimacy of  the processes involved and the sufficiency of the notings  and consultations  made, came to the conclusion that the communication never represented the decision of the Government and  was in conformity with Secretariat practice. The learned single Judge summed up his view thus:           There is  thus no inherent lacuna or illegality in      the proceedings  which led to Ext. P3. I hold that Ext.      P3 was validly issued. Nothing  presented  to  us  persuades  to  a  contrary  view although we  may presently advert to what, with a slant, the Full Bench  of the High Court had to say, in appeal, on this aspect of  the matter.  Mistrust of  Government, implicit in the judgment  of the  Full Bench  in appeal, is violative of comity between  instrumentalities  and  is  not  permissible unless substantiated  by facts.  It has  beer well said that suspicion is  the upas  tree under  whose shade reason fails and justice  dies. We  permit ourselves  these  observations only because  the learned  Chief Justice  who spoke  for the Full Bench  did use  words which  did  not  indict  but  did suspect: 78           We  wish   to  record   that  it  was  stated  for      Respondents 4  and 5  in W.A.  No. 222  and 245 of 1979      that the marks of the Diploma Test were communicated to      the principals  on before  the last date for receipt of      applications and  received by  them on 31-3-1979. There      was nothing  to show  whether the  communication was an      open or an authenticated one and we are doubtful to say      no more  whether at  acquisition of  qualification  for      eligibility and  weightage, subsequent to the last date      for application  can save an applicant who did not have      these on  the said  date. We  are clear  that  Ext.  P3      cannot have  the effect  of overriding  the  effect  of      clauses 12 and 13 (k) of the Prospectus.                     (emphasis supplied) We will scan the soundness of this criticism in due course.      It is  fair to  state now  that we  have  sketched  the backdrop, what  the further  facts are  and  what  the  High Court’s verdict  is. We may abbreviate the narration because we substantially  agree with the main legal point decided by the High  Court. Regrettably,  its  ultimate  direction  has thrown the academic year in post-graduate Ophthalmology into disarray and even wastage. Welfare-oriented judicial process must be  constructive in  its objective,  must be  geared to order as  its goal  and must  pave  the  way  for  resultant contentment, avoiding  negative writs  which,  in  practice, prove to  be congealing commands. Indeed, the High Court, on the crucial  question, has more or less correctly stated the law regarding  denial of  opportunity  for  ’outsiders’  and consequently found  the admission  to the courses all wrong, but through  its judgment,  has jettisoned  students who are half-way through their courses and directed fresh admissions on new policies yet to be evolved, with little chance of any one getting  through the  examinations  or  even  admissions during this  academic year  consistently with the university regulations   and    governmental   tardiness.   We   cannot countenance such  negativity without  some effort  at rescue through the  court writ  since a whole year of Ophthalmology study at  the post-graduate  level may  well be  lost to the State, what  with the  enormous investment  in running  such courses that the universities have laid out and the people’s

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need for  such specialists.  The Full  Bench decision of the High Court,  in its  ultimate effect,  has left  behind it a fallout of demolition:           As a result of our above discussion and conclusion      we allow  N.A. No.  222  of  1979  and  set  aside  the      judgment of  the learned  Judge and  the rank  list for      admission to 79      the post-graduate  courses in  Ophthalmology, and quash      the selections made on the basis of the said list.           We were  rather distressed  at having to quash the      selections of  budding youngsters  to  the  specialised      courses. Such  thoughts prevailed  with us  in the Full      Bench decision  in State  of Kerala  and Anr.  v. Rafia      Rahim (1978  KLT 369).  While the  petitioners in those      cases won  the battle,  they were  denied the fruits of      victory. We  see no ground for a repetition of the same      treatment to the petitioners before us. Particularly it      is  so,  because  some  of  them  had  filed  the  writ      petitions before  the selections, and some had obtained      interim orders  that the  selections shall be finalised      only subject  to the  result of  the writ  petitions in      this court.  We cannot lightly pass over these aspects.      We would  accordingly quash  the  selections  made  and      directly  a   fresh  selection   to  the   courses,  in      accordance with law and in the light of the observation      contained in this judgment.      Whatever might  be the  passion  for  correct  law  and provocation on  account of  governmental  indifference,  the court, in  our view, must use its power to correct error and promote order  and not  strike down an illegal error without going forward  to  affirmative  action  which  may  minimise injury generally.  Indeed,  the  judicial  process,  in  its creative impulse, must hesitate to scuttle, salvage wherever possible and  destroy only  when  the  situation  is  beyond retrieval-life-giving facts forgotten by the High Court when quashing  the   admissions  for   the  year.  This  positive perspective justifies  the final  direction that we issue in the concluding  para of  this judgment, if we may anticipate the nature of the relief we have moulded.      Some more  facts may now be narrated merely to illumine the ground  on which  we are  disposing  of  these  appeals. Indeed, our anxiety to hasten the pace of justice and reduce the damage  to the  courses under  way has persuaded us into hearing full  arguments at  the earliest  stage conceivable. Having recently  discussed a  similar issue  in Dr. Jagadish Saran’s case we desist from elaborately examining the merits of one  of the  major issues  raised here.  Abridged  facts, condensed examination  and brief  directions  will  suffice, although arguments have been full and helpful.      The number of seats for the post-graduate degree course in Ophthalmology  available for the year 1979-80 was six, of which one belonged 80 to a Scheduled Caste/Scheduled Tribe candidate, another to a tutor working  in a medical college. The State was left with four seats.  The High  Court has  clarified that  one of the students, Dr.  Gopinathan Nair, was so meritorious that none challenged his  admission. Three  seats and  six contenders, was the musical chair scenario.      The story  thus  begins  with  three  seats  for  post- graduate Ophthalmology and the whole exercise is confined to allotment of  these  seats  in  conformity  with  the  equal opportunity rule  which is  constitutionally inviolable. The selection committee,  acting on the guidelines, had to award

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10 marks  extra for  those who had a post-graduate diploma-a reasonable  recognition   of  an  additional  accomplishment relevant to  the object  of excellence  in the post-graduate degree course. So, no one has attacked the propriety of this addition. On  the contrary,  both sides  have relied on this qualification, the battle being over the subsidiary issue of whether the  appellants before  us, whose  admission to  the courses has  been undone  by the High Court were entitled to reckon in  their favour  the possession  of  a  diploma  the certificate for which was issued to them only after the last date for  applications for the post-graduate degree. We will presently state the events which give rise to this argument. Right or  wrong, the  Selection Committee  did  admit  three students who  undoubtedly possessed  diplomas  and,  if  the marks eligible  on that  score were  to be  tacked  on,  the selections were  unassailable  except  at  the  instance  of candidates from  universities outside Kerala and one of whom did successfully  challenge the  selections before  the High Court.      Had the final shape of the High Court’s order been left intact it would have meant that all those doing their course would be  out and  the elaborate  process of  framing  fresh rules would  involve discussion and debate, consultation and formulation, and  then invitation  for applications, only to find that,  at the  end of  this  excursion,  everybody  has missed the  bus  since  time  does  not  stand  still  until government implements the High Court’s will.      The major  target of  attack before  the High Court was the  2%  reservation  for  the  entire  country’s  candidate population from  outside Kerala in what was called the "open merit  pool".  The  reason  for  the  nullification  of  the parsimonious percentage for ’outside’ candidates in the open merit pool has peen stated by the High Court thus:           Despite our  anxiety,  we  are  afraid  we  cannot      salvage the  principle of  selection introduced  by the      Government under clause 5(c) as amounting to a rational      classifi- 81      cation  based  on  intelligible  differentia  having  a      rational nexus  with the  object sought  to be  served.      Whether intentionally  or otherwise,  it strikes  us as      clever  device   to  oust   the  ’outside’   University      Graduates from  the general  merit pool  and to confine      them to an illusory scheme of reservations. We have  dealt with the policy of institutional reservations paring down  the availability  of seats  for candidates from other universities,  in Dr.  Jagadish Saran’s  case (supra). Although  in  that  decision  we  ultimately  desisted  from striking down  the formula  adopted by  the Delhi University with a  view to  avoiding a  stalemate for  the year, we did direct that  University to  reconsider the  whole problem of admissions and  reservations in terms of Arts. 14 and 15 and concretise the  constitutional guidelines  in  that  behalf. Having regard  to the  ratio in  the above  case, we are not inclined to reverse the view of the Full Bench of the Kerala High Court  in the judgment under appeal in so far as it has taken the view extracted above. Even so, we feel the need to pursue the  matter further because we must design the relief with the  least disturbance and not annul the course for the year as a legal consequence.      The scheme of reservation of a paltry 2% for candidates in the  whole country  outside the  two universities  of the State has  not been  substantiated as sufficient fulfillment of Arts.  14 and 15. Fundamental rights of candidates do not depend on  the grace  of governments  and  Indians  are  not

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aliens in  their own motherland when asking for seats on the score of equal opportunity. A host of good reasons may weigh with the  State in formulating preferences, reservations and other cases  of choice provided they do not outrage Arts. 14 and 15, or, indeed, as suggested by this Court in the Thomas case may  promote the  process of  equalisation as a dynamic phase of  equality. What  is paramount  is equal opportunity for each.      The Government,  in  its  wisdom,  made  provision  for scheduled castes/tribes, backward classes, students from the colleges of  Kerala and  other categories and, after working out these enclaves of exclusivism and immunity from national competition on  sheer merit,  wound up with a magnificent 2% of the  total seats  by way of homage to "equal opportunity" open to  all Indian  candidates put  together  (less  Kerala candidates).      Can it be that, while sloganising against the parochial doctrine of  "sons of  the soil",  States policy  in  higher education does not concede more than 2% to Indian candidates qua Indians who are 82 not otherwise  sheltered by  the dykes of reservations ? The High Court  was obviously dissatisfied with the governmental policy of  2% for  "open" seats  which was more a mockery of national integrity,  read with  equal  opportunity,  than  a sincere respect  for the  foundational  faith  enshrined  in Arts. 14  and 15. You cannot lay wreath and claim to garland if we  may put the point in poignant imagery. Therefore, the High Court  struck down the formula for selection because it regarded that  a higher proportion of seats for all in "open competition" was a constitutional necessity. We do not delve into this aspect at greater length or scan the pros and cons of the  point canvassed  because we  have already decided in Dr. Jagadish  Saran and  Ors. v. Union of India (Supra) what guidelines should  govern admissions  to medical colleges at the  higher   levels.  We,  therefore,  do  not  propose  to interfere with  the holding  of the  High Court  that 2% for "outsiders" is  not sustainable  in law.  But, we must, even here, caution the Kerala State that an enlightened policy of admission to  institutions of higher studies in harmony with the constitution  must be  formulated if  it is  not  to  be guilty of  contributing to the confusion in college campuses and "student litigation" which paralyse educational life.      Even though we desist from demolishing the reasoning of the High  Court on  the trivial 2%, we cannot appreciate the negative stance  or note  of nullity  adopted in  the  final relief. Remedial jurisprudence is benign judge power. Law in action being  a healing art, we must strive to avoid driving out the  students half-way  through their  course and to see that no  costly seat  for  advanced  studies  in  which  the community as  a whole has a stake is wasted. We do not think the court  should  give  up  the  search  for  alternatives. Actually, we  persuaded counsel  on both  sides  to  make  a constructive approach.  So viewed, it became feasible for us to reach a reasonable and viable solution to the problem, as will be  presently explained.  In conclusion,  we agree with the High  Court that  2% in  the ’merit  pool’ for ’outside’ candidates is  not shown to be rational and so the ’outsider candidates (to  use the High Court’s expression) should have been considered  even beyond  2%. But how far and under what conditions is  for the  State to  consider. (see Dr. Jagdish Saran, supra).      Now we  come up  against the other limb of the argument which appealed  to the  High  Court.  The  three  candidates already admitted  to the  Ophthalmology course secured their

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seats on  the basis of ’diploma marks’. Had they no diplomas they would  have been screened out. The High Court has taken the view  that the  diplomas of  the appellants  should have been excluded from consideration by the Selection Committee. Why? The ground is given by the Full Bench in appeal thus: 83           Under clause  13(k) of the application form, which      we have  extracted earlier,  all certificates  required      had to  be produced  with the  application.  Clause  12      enjoins summary  rejection for  non-compliance. All  of      which,  only   seem  to   indicate  that   the  diploma      certificate   of    weightage   must    accompany   the      application.  Where  it  did  not,  as  in  this  case,      accompany the  application, there  was no  right in the      Government or special Secretary to over look the defect      and direct  the weightage to be given even to those who      did not have the diploma as was attempted to be done by      Ext. P3  letter referred  to earlier. Assuming, without      deciding that  the ’Prospectus’  and  the  notification      ware a  ’law’ we  would remind ourselves of the caution      administered by  the Supreme  Court that an unannounced      law like  Ext. P3  cannot bind,  and that it is against      the principles of natural justice to penalise a citizen      on such  ’law vide  Harla v.  State of  Rajasthan  (AIR      1951) SC  467.  If  acquisition  of  qualification  for      eligibility  or   weightage  were  to  be  looked  into      subsequent to  the last date, we should think that only      an open and official or authentic declaration of result      by the university, or perhaps on official intimation of      declaration of  result alone can serve the purpose. The      direction in  Ext. P3  to give  weightage to the Kerala      University graduates  would  certainly  not  serve  the      purpose, and was wrong and illegal and has vitiated the      selection. Bluntly expressed,  the court took the rather pharisaic view that "the  diploma certificate  for weightage must accompany the  application.  Where  it  did  not,  as  in  this  case, accompany  the   application  there  was  no  right  in  the government or  Special Secretary  to overlook the defect and direct the  weightage to  be given even to those who did not have the  diploma as  was accepted  to be  done by  Ext.  P3 letter referred  to earlier". An oblique suggestion that the Government Secretary’s  communication was not authentic and, therefore, invalid  is also  part of  the reasoning  of  the learned  judges.   With  great  deference,  we  express  our difference. It  is common  case  that  the  diploma  holding students who  had  been  given  admission  to  post-graduate Ophthalmology by  the selection committee had secured higher marks than the diploma-holding students who had been refused admission by  that committee.  But the  High Court cancelled the marks awarded to the three students who had been granted admission by  the selection  committee on  the  ground  that their diploma certificates were not obtained before 84 the  last   date  of  application,  the  intimation  to  the selection committee  by  the  Secretary  to  Government  was ’unlaw’, and,  therefore, the  special marks  added to their score had  to be  deleted. If  this stand  of the High Court were right,  the three  students who  were  currently  doing their course  would have  to get  out and  since the  entire selection had  formally been set aside, no one also would be able to get any admission until revised rules were made. The upshot would  be that  the three  seats available for higher Ophthalmology would be wholly wasted and the losers would be the students  and the  State. Should this be ? We think not.

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The real  reason, apart  from some  suspicion, which weighed with the  High Court  in disregarding  the diplomas was that the prospectus  and the  prescriptions there in were law and could not  be deviated  from even  a wee-bit and, therefore, the non-production  of the  certified copies of the diplomas along with  the  applications  for  admission  excluded  the candidates from  eligibility to  the addition  of 10  marks. Even  if  it  were  not  law,  an  official  declaration  of university  results,   not  official  communication  to  the selection committee  would be  essential. In  our view, this over-stress on  literality undermines  the substantiality of the guidelines  in the  prospectus. Here  the learned single Judge was right.      There is  nothing unreasonable  nor arbitrary in adding 10 marks for holders of a diploma. But to earn this extra 10 marks, the  diploma must  be obtained  at least on or before the last  date for  application, not  later. Proof of having obtained a  diploma is  different from  the factum of having got it. Has the candidate, in fact, secured a diploma before the final  date of  application for  admission to the degree course ?  That is  the primary  question. It  is prudent  to produce evidence  of the diploma along with the application, but that  is secondary.  Relaxation of the date on the first is illegal,  not so  on  the  second.  Academic  excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of  actual selection.  The emphasis  is on the diploma, the proof  thereof subserves the factum of possession of the diploma and  is not  an independent  factor. The  prospectus does say:           (4)(b) :  10% to  Diploma holders in the selection      of  candidates  to  M.S.,  and  M.D.,  courses  in  the      respective subjects or sub-specialities.           13. Certificates  to be  produced :-  In all cases      true copies  of the  following  documents  have  to  be      produced:-      xx                  xx                  xx           (k) Any other certificates required along with the           application. 85 This composite statement cannot be read formalistic fashion. Mode of  proof is geared to the goal of the qualification in question. It  is  subversive  of  sound  interpretation  and realistic decoding  of the prescription to telescope the two and make  both mandatory in point of time. What is essential in the  possession of  a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To  confuse   between  fact   and  its   proof  is   blurred perspicacity. To  make mandatory  the date  of acquiring the additional  qualification   before   the   last   date   for application makes sense. But if it is unshakeably shown that the qualification  has been  acquired  before  the  relevant date, as  is the  case here, to invalidate this merit factor because proof,  though indubitable,  was adduced  a few days later but  before the selection or in a manner not mentioned in the  prospectus,  but  still  above  board,  is  to  make procedure not the hand made but the mistress and form not as subservient to substance but as superior to the essence.      Before the  selection committee adds special marks to a candidate based  on a  prescribed ground  it asks itself the primary question:  has he the requisite qualification? If he has the  marks must  be added.  The manner  of  proving  the qualification is indicated and should ordinarily be adopted. But, if  the candidate  convincingly establishes the ground, though through a method different from the specified one, he

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cannot be  denied the  benefit. The end cannot be undermined by the means. Actual excellence cannot be obliterated by the choice of an incontestable but unorthodox probative process. Equity shall  overpower technicality  where human justice is at stake.      The  present   case  is   a  capital   illustration  of nominalism battling  with realism for judicial success. Both sides admit  that  the  appellants  before  us  had  secured diplomas. They  further admit  (ignoring for  a  moment  the submission on  2% for  outsiders) that if the diploma scores were added, the applicants, by the measure of marks, deserve to  be  selected,  provided  the  diploma  obtained  in  the examination held  in 1979  is within time. Then, why did the High Court  upset their  selection? Because the certificates of  diploma  were  not  attached  to  the  applications  and communication by  the Registrar  of the  University  to  the selection committee  was  an  unauthorised  mode  of  proof, deviating from the prospectus, though authentic in fact. Two flaws vitiate  this verbally  virtuous  approach.  True  the prospectus directs that certificates shall be produced along with the  applications for  admission. The purpose obviously is to have instant proof of the qualification. 86      We are  aware that  when a statute vests a public power and conditions the manner of exercise of that power than the law insists  on that  mode of  exercise alone.  We are  here unconcerned with  that rule.  A method  of  convenience  for proving possession  of a  qualification is merely directory. Moreover, the prospectus itself permits government to modify the method,  as the learned single Judge has pointed out. In this view,  we see nothing objectionable with the government directive  to   the  selection   committee,   nor   in   the communication to  the selection committee by the university, nor even  in their  taking  into  consideration  and  giving credit for  diplomas although  the authentic  copies of  the diplomas were not attached to the application for admission. A hundred  examples of  absurd consequences  can be given if the substance  of the  matter was  to be sacrificed for mere form and prescriptions regarding procedures.      It is  notorious that  this  formalistic,  ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive  of the  purpose of the exercise. This way of viewing problems  dehumanises the  administrative,  judicial and even  legislative processes  in the wider perspective of law for  man and  not man  for law.  Much  of  hardship  and harassment in Administration flows from over-emphasis on the external rather  than the essential. We think the government and the  selection committee  rightly treated  as  directory (not mandatory)  the mode of proving the holding of diplomas and an  mandatory the  actual possession  of the diploma. In actual life,  we know  how exasperatingly  dilatory it is to get copies  of degrees,  decrees and  deeds, not to speak of other   authenticated   documents   like   mark-lists   from universities,  why,   even  bail   orders  from  courts  and government orders  from  public  offices.  This  frustrating delay was  by-passed by  the State Government in the present case  by   two  steps.  Government  informed  the  selection committee that  even if  they got  proof of marks only after the last  date for  applications but  before  the  date  for selections they  could be  taken note  of and  secondly  the Registrars of  the Universities informed officially which of the  candidates  had  passed  in  the  diploma  course.  The selection committee  did not  violate any mandatory rule nor act arbitrarily  by accepting  and acting  upon these steps. Had there  been anything  dubious, shady or unfair about the

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procedure or any mala fide move in the official exercises we would never  have tolerated  deviations. But a prospectus is not  scripture   and  commonsense   is   not   inimical   to interpreting and  applying the guidelines therein. Once this position is  plain the  addition of  special marks was basic justice to proficiency measured by marks. 87      We thus  reach the conclusion that the three candidates who had  been eventually admitted by the selection committee could  not   be  ousted  merely  for  the  reason  that  the certificate of  diploma had  not been produced together with the application for admission. Nor, indeed, could government be  faulted   for  issuing  a  directive  to  the  selection committee that  applications from  students of  the  diploma course could  be considered  subject to  the condition  that they  would   "produce  the   diploma  certificates   before finalising the  selection  to  post-graduate  courses".  The equity of this instruction of the government comes into bold relief when  we realise  that no  party in  this Court has a case that the candidates admitted by the selection committee did not secure a diploma in Ophthalmology.      Even so,  there is  a snag. Who are the diploma-holders eligible for  10 extra  marks ?  Only those who, at least by the  final  date  for  making  applications  for  admissions possess the  diploma. Acquisition  of a  diploma  later  may qualify him  later, not  this year.  Otherwise, the dateline makes no  sense. So,  the  short  question  is  when  can  a candidate claim  to have got a diploma? When he has done all that he  has to  do and  the result of it is officially made known by  the concerned  authority. An examinee for a degree or diploma  must complete  his examination-written,  oral or practical-before he  can tell the selection committee or the court that he has done his part. Even this is not enough. If all goes  well after  that, he  cannot be  credited with the title to  the degree if the results are announced only after the last  date for  applications but  before selection.  The second condition precedent must also be fulfilled, viz., the official communication  of the  result before  the selection and its  being brought  to the  ken of  the committee  in an authentic manner.  May be,  the examination  is cancelled or the marks  of the  candidates are with-held. He acquires the degree or  diploma only when the results are officially made known. Until  then his  qualification is  inchoate. But once these events  happen his  qualification can  be  taken  into account in  evaluation of  equal  opportunity  provided  the selection committee has the result before it at the time of- not after-the  selection is  over. To  sum up, the applicant for post-graduate degree course earns the right to the added advantage of  diploma only  if  (a)  he  has  completed  the diploma examination  on or  before the  last  date  for  the application, (b)  the result  of  the  examination  is  also published before  that date, and (c) the candidate’s success in the  diploma course  is brought  to the  knowledge of the selection committee  before completion  of selection  in  an authentic or  acceptable manner.  The  prescription  in  the prospectus that a certificate of the 88 diploma shall  be attached  to the application for admission is directory,  not mandatory,  a sure  mode,  not  the  sole means. The  delays  in  getting  certified  copies  in  many departments  have   become  so  exasperatingly  common  that realism and  justice forbid  the iniquitous  consequence  of defeating the  applicant if,  otherwise than  by a certified copy, he satisfies the committee about his diploma. There is nothing improper  even in  a selection  committee requesting

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the concerned  universities to inform them of the factum and get the proof straight by communication therefrom-unless, of course, this  facility is arbitrarily confined only to a few or there  is otherwise  some capricious or unveracious touch about the process.      Judged by the above tests it is conceded that while the Calicut University’s  diploma-holders  had  completed  their examination before  the last  date for M.D. applications and produced the  certificate before  the selection,  the Kerala University diploma-holder  completed his diploma examination including public  action of results only after the last date for applications  and produced  the certificate  before  the selection. By  this token  he is  ineligible  for  admission because his diploma result was published only after the last date for  applications. The accident of time has cheated him even as  in human  affairs generally,  be it  individual  or collective, fortune ebbs and flows, influenced critically by happenstances of time and circumstances of life. That is the relativity  of   Life,  if   one  may   look   at   problems philosophically. We, therefore, hold that appellant Nos. 2 & 3 are  entitled to  admission and their appeal must succeed. By the  same token  the appeal  of appellant No. one must be dismissed.      To dismiss an appeal is merely to declare that judicial remedy will  not issue  and  not  that  by  other  processes justice should  not be  sought or  granted. From  the humane perspective and with a view to helping appellant No. one and to  pursue  his  relief  through  the  University  or  other appropriate State agency, we directed the impleadment of the Indian  Medical   Council  which   is  the   statutory  body concerned,  at  the  national  level,  with  higher  medical degrees and  courses. The  Medical Council  has not appeared before the  court though  its presence would have helped the forensic process  to heal the fractured academic course. But we cannot wait longer. It behoves the State to give academic justice-not legal remedy-to appellant No. 1 if circumstances permit,  having  regard  to  the  fact  that,  with  diploma qualification,  he   has   spent   months   in   doing   his ophthalmology degree  course. In law he fails, in justice he need not,  if marginal  adjustments by  increasing one  seat more were  possible without  injury to  academic efficiency. What we mean is that though 89 appellant No.  1 has  no legal  claim to a seat, the overall circumstances will merit compassionate consideration, and we direct the  Kerala University and the Indian Medical Council to permit  him to  complete his  course by  adding one  more seat, for this year only, to the Ophthalmic degree course.      On  this   basis  there  is  one  seat  vacant  in  the Trivandrum Medical  College. To  whom should it be allotted? There are three ’outsiders’ and there is one seat available. Ordinarily, the  best applicant  is one  who has the highest marks and  the seat must be awarded to her i.e. Dr. Naomi J. Vettath. She has not filed any writ petition although denied admission. Among  the  three  only  Dr.  Gopalakrishnan  has chosen to  challenge the rejection of admission. So Sri T.S. Krishnamurthy Iyer contends that the only seat available for allotment should  be confirmed to the only applicant who has cared to  challenge by  writ petition and those who have not cared to  impugn the  admission scheme  in court  should  be ignored as having given up the pursuit.      Shri T.S. Krishnamurthy Iyer relies on the ruling in A. Periakaruppan v.  State of  Tamilnadu to support his special plea to  award the seat to Dr. Goppala Krishnan, who has got less marks  than the  non-litigant Dr Naomi. Hegde, J in the

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above case did observe:           There are  about 80 persons, who, we are told, are      in  the   waiting  list.   Some  of   the  unsuccessful      applicants had  moved the  High  Court  of  Madras  for      relief  similar  to  that  sought  by  the  petitioners      herein. But  it appears, their writ petitions have been      dismissed. Some  out of  them have  intervened  in  the      petitions. Other  non-selected candidates  have evinced      no interest  in challenging the selections made. In the      circumstances, it  is reasonable  to assume  that  they      have abandoned  their claim and it is too late for them      to press their claim. Certainly, this  limited approach strengthens the submission of Shri  Krishnamurthy Iyer.  The force  of the reasoning in Periakaruppan’s case  (supra) consists  in  the  probability that a  party who does not litigate manifests apathy for the enforcement of  his rights. The logic is simple. He who does not promptly  pursue his remedy may reasonably be assumed to have lost  interest in  gaining admission  to the course. If this were  a universal proposition, Dr. Gopalakrishnan could be allotted  the only vacant seat. But, on a suggestion from the court,  the Principal of the Medical College, Trivandrum ascertained the wishes of Dr. Naomi J. Vettath and Dr. 90 Joggy  Joseph  who  are  diploma-holders  from  universities outside Kerala  and are  currently  working  as  doctors  in hospitals. Dr.  Gopalakrishnan unlike  the  two  others,  is working as an ophthalmologist in a private hospital. All the three have  indicated their  wish to  continue in  the post- graduate degree  course in  ophthalmology when the Principal enquired of  them,  although  only  Dr.  Gopalakrishnan  has chosen to assert his rights in court.      In  this   dilemma,  we   consider   that   while   the observations in Periakaruppan’s case (supra) are entitled to great weight,  it is conceivable that Dr. Naomi who has out- distanced the  other two in marks and is desirous of joining the post-graduates  course  might  have  been  prevented  by indigence from  litigating for  her  right.  Such  a  bright student who  has much  more merit  than the other two should not suffer  for the  sole reason  that she  has not  come to court. This  ground does  not operate in favour of Dr. Joggy Joseph who  has a slight edge over Dr. Gopalakrishnan and is in general practice, not in ophthalmology, nor has he chosen to challenge  the selection,  in short,  while we  should be guided by  the observations  in Periakaruppan’s case (supra) we are  reluctant to  overlook the  superior  claim  of  Dr. Naomi. While  transfixed between  these  two  candidates-Dr. Naomi and  Dr.  Gopalakrishnan-for  the  one  seat  that  is available, we  were given to understand by Shri Abdul Khadar appearing for  the State  that very  probably there  will be facilities enough  in the  Medical College,  Trivandrum  and Medical College,  Calicut to accommodate one extra candidate in the  ophthalmology course  if it  were to  be confined to this year as a special case. The only other agency which has a voice  in this  matter is the Indian Medical Council which is a party before us but even after repeated notices has not indicated  its  willingness  to  appear.  We  think  that  a practical course  which  will  meet  the  ends  of  justice, following the  reasoning in Pariakaruppan’s case (supra) and the realistic  approach made  in State  of Kerala  v. Kumari T.P. Roshana  and Anr.  will be  to direct the Principals of the two  medical  colleges,  viz.,  Trivandrum  and  Calicut together  to   accommodate  two   more  candidates   in  the postgraduate degree course in ophthalmology for this year.      Shri Abdul  Kadar, counsel  for the State, after taking

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time to consult his client made a statement in Court that so far as  the State  Government is concerned, they are willing to take  in, for  the post-graduate ophthalmology course for this year,  two more  candidates  in  the  Medical  College, Trivandrum and  the Medical  College, Calicut together. This means that the Government is 91 satisfied that, as a special case, sufficient facilities can be found for accommodating Dr. Naomi and Dr. Gopalakrishnan. The Indian  Medical Council appeared in Court through one of its officers  after a notice was issued to it explaining the purpose for  which that  Council was being summoned, namely, to tell  the Court whether, from a technical angle, it would be feasible  to direct two more candidates to be absorbed in the post-graduate  ophthalmology  course.  The  officer,  on behalf of  the Indian  Medical Council  stated that from the point of  view of the Medical Council there was no objection to that  course and  it would  concept  to  such  additional accommodation of two candidates if the Court felt it just to do so.      We, therefore,  direct the  State  of  Kerala  and  the Principal of  the Trivandrum  Medical College,  who  is  the convener of  the Selection  Committee, as  well as  the  two Universities concerned,  to  admit  into  the  post-graduate ophthalmology course  Dr. Naomi  and Dr.  Gopalakrishnan for this year.  The two  applicants will  report within  10 days from today  for such  admission and  the admission  will  be accorded to  them. The  Principal of  the Trivandrum Medical College will  inform Dr.  Naomi about  this direction of the Court.      Last there  should be  any further confusion we make it clear that  the two  candidates who according to our earlier direction will continue their course, will not be disturbed. Dr. Skaria  who got  his diploma from the Trivandrum Medical College will  be permitted  to continue  in the light of the compassionate considerations we have earlier mentioned.      To conclude,  we hold  that the  2% open  seats for the candidates from all the Universities of India outside Kerala runs  counter  to  the  constitutional  directive  of  equal opportunity  and   the  preambular   emphasis  on   national integrity and the State will do well to fashion a formula in terms of  the guidelines  given in Dr. Jagdish Saran’s Case. After  all,   lines  of  poetry  may  drive  home  rules  of constitutionality vigorously           Pity the nation           Divided into fragments           Each fragment deeming itself a nation. 92 Although the  selection formula  may be bad for violation of Art. 14,  it is  possible to  reconstruct for  this  year  a practical admission  formula. That is precisely what we have done, overruling  the High  Court’s approach  which, in  our view but  with all respect, is a little too pedantic. In the result, the  appellants 2  and 3 who took their diploma from the Medical  College, Calicut  will be  entitled to continue their  course.   Appellant  No.   1  will   move   the   two universities, the  Indian Medical  Council  and  the  Kerala Government for  permission to  continue his  studies in  the exigencies of  the case and in the light of the observations we have made above. Dr. Naomi and Dr. Gopalakrishnan will be assigned a seat each in one or other two Medical Colleges by the Principal  of the Medical College, Trivandrum who is the convener of the selection committee.      Finally, we  make it  clear once  again that  the  only branch which  has fallen  for our  examination is the degree

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course in  Ophthalmology. No  other department  or course is sought to  be upset. The Court is not a bull in a china shop and we  restrict the  order we  have made  to  the  solitary department of  Ophthalmology and  wish to  leave undisturbed all the other studies in progress.      We must  express our distress at being driven to patch- work solutions because of the academic crisis created by the State in  working out  its programme  of selection  and hope that time will not be lost in giving a fresh and fundamental look at  the problem  so that  litigative  history  may  not repeat itself. N.K.A. 93