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PETITIONER: A. PERIAKARUPPAN CHETTIAR

       Vs.

RESPONDENT: STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT15/01/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C. GROVER, A.N.

CITATION:  1971 AIR 2303            1971 SCR  (2) 430  1971 SCC  (1)  38

ACT: Admission   to  Medical  Colleges-Allegation  of   malafides against   Selection  Committee-Proof  of Interview   marks Government  specifies heads of distribution of marks but  no marks allotted to each head Presumption that marks should be distributed  equally-Violation of presumption  by  Selection Committee-Elect on selections made.

HEADNOTE:  The petitioner, who was an unsuccessful applicant for a seat  in  one  of  the medical colleges  in  the  respondent-State  challenged  the selections made by a writ petition  in  this  Court.    This  Court  came  to  the  conclusion  that   the  selections made were invalid, but did not strike them  down,  and  instead,  directed the State to constitute  a  separate  expert  Committee  for  making selections  to  the  unfilled  seats.  The Court further directed that the Committee should  interview only the candidates shown in the waiting list  and  those  who  moved  unsuccessfully the High  Court  and  this  Court.  This Court observed that the 75 marks allocated  for  interview should be divided equally among the five different  beads with respect to which the marks should be given at the  interview.  In  pursuance  of  the direction  the  State  constituted  a  Selection  Committee.   The Committee called  for  interview  several   other  candidates  besides  those  asked   to   be  interviewed  by this Court, though the  Committee  refrained  from interviewing such additional candidates.  The Selection  Committee also distributed the 75 interview marks, among the  five heads not equally but according to its own  discretion.  Candidates were selected for all the unfilled seats but  the  petitioner was not selected.  He challenged the selection on  the  grounds that : (1) the Selection Committee showed  open  hostility to him at the interview, (2) the violation of  the  directions  of  this Court showed malafides, and  (3)  those  illegalities vitiated the selection made.  HELD  :  (1) The Selection Committee denied  that  they  had  exhibited any hostility towards the petitioner.  The  charge  of  malafides  has to be established by  the  petitioner  by  satisfactory  evidence,  and the fact  that  the  petitioner  could  not  get  any  outside  evidence  to  establish  what

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happened at the interview cannot shift the burden that is on  him. [451 F-H]  (2)  The  Selection  Committee explained  that  they  called  additional  candidates  for interview because they  did  not  understand the scope of the judgment of this Court, and that  they  distributed  the 75 marks in their  dicretion  because  there was no specific direction in the operative portion  of  the  judgment  of  this Court to  distribute  them  equally.  Though the explanation was not satisfactory, it could not be  said  that the Committee had acted mala fide. [452 B-C;  453  E-F]  (3)  The  interview  rules  were  made  by  Government   and  Government  alone could have distributed the  marks  amongst  the  various heads.  In the absence of such a  distribution’  it should be deemed that each one of the heads carried equal  marks.   Therefore, the procedure adopted by  the  Committee  was illegal and contrary to the directions of this Court and  was  likely  to have affected the result of  the  interview.  [453 F-G]  450  Moreover,  the  Moreover  the Committee even  on  the  basis  adopted by it, had proceeded on wholly wrong premises  while  granting  marks to the petitioner under the  head  ’National  Cadet Corps activities’. [455 F-G]  Therefore, the selections made could not be sustained.

JUDGMENT:  ORIGINAL JURISDICTiON : Writ Petition No. 623 of 1970.  Petition  under  Art. 32 of the Constitution  of  India  for  enforcement of fundamental rights.  K.   K. Venugopal and R. Gopalakrishnan, for the petitioner.  S.   Govind Swaminathan, Advocate-General, Tamil Nadu, S.  Mohan and A. V. Rangam, for respondents Nos. 1 to 5.  The Judgment of the Court was delivered by  Hegde,  J. This is an unfortunate case.  The  petitioner,  a  bright  young  student  is approaching this  Court  for  the  second  time to seek justice.  He, had a brilliant  academic  career.   He secured high marks in all the  examinations  in  which  he appeared.  In the Pre-University  Examination,  he  secured  First  class  with  Grade D  plus  in  Physics  and  Chemistry  and  A  plus in Biology.  He  stood  4th  in  his  college.   Grade D plus represents 85 to 99 per  cent  marks  and  A  plus  65  to 75 per  cent  marks.   He  applied  for  admission  for a seat in one of the medical colleges in  the  State  of Tamil Nadu.  He was called for interview  but  was  not selected as he is said to have secured low marks in  the  interview.   He challenged before this Court the  selections  made  on various grounds in Writ Petition No. 285  of  1970.  That  petition  was heard along with  another  petition  and  those petitions were allowed on September 23, 1970.  In that  petition the petitioner had alleged that the selections made  were illegal for various reasons.  He had also alleged  that  the  selections  were manipulated by the  Government.   This  Court  came to the conclusion that the allegations  of  mala  fide  had not been established but yet selections were  held  to  be invalid for the reasons mentioned in our order  dated  23rd September, 1970.  Despite coming to the conclusion that  the selections made were invalid, we did not strike down the  selections in view of the fact that the selected  candidates  had  not been made parties to those petitions.  We  directed  the State of Tamil Nadu to immediately constitute a separate  expert committee consisting of eminent medical practitioners  (after  excluding  all  those who were the  members  of  the

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previous committee) for making selections to the 24 unfilled  seats.  We further ordered :  "The  selection  shall  be made  on  statewise  basis.   The  committee shall interview only the candidates who are  shown  in  the waiting list, the persons who  unsuccessfully  moved  the High Court of Madras and the two  451  petitioners  before this Court.  They shall  allot  separate  marks  under  the five he-ads mentioned in  the  rule.   The  committee  shall take into consideration only  matters  laid  down  in the rule exclude from consideration all  irrelevant  matters  and thereafter prepare a gradation list to fill  up  the 24 seats mentioned earlier."  In pursuance of the above direction, the State of Tamil Nadu  constituted   a  selection  committee  and   the   selection  committee  has selected 24 students for being admitted  into  one  or the other medical colleges run by the Government  of  Tamil  Nadu  but  the  petitioner  has  not  been  selected.  Thereafter  the  petitioner  has  come  up  with  this  writ  petition  challenging the validity of the  selections  made.  The  main  contention taken by him in his writ  petition  is  that  in  view  of the widespread  publicity  given  to  our  previous judgment by the newspapers and the radio, there had  been a widespread discontent and criticism in regard to  the  prevailing system of interviews.  That widespread  publicity  affected  very much the prestige of the State Government  of  Tamil  Nadu and therefore the Government of Tamil  Nadu  was  particular to see that the petitioner was not selected.   He  sought  to  establish this plea primarily on  the  basis  of  three circumstances namely (1) that during the interview the  members  of  the selection committee showed  open  hostility  towards  him; (2) that despite the order of this Court,  the  selection committee called for interview several persons  in  addition  to those directed to be interviewed by this  Court  and  it  is only after he moved this Court  to  take  action  against  the  committee for disobeying the  orders  of  this  Court,   the  committee  refrained  from  interviewing   the  candidates  other than those directed to be  interviewed  by  this Court and (3) the selection committee has  deliberately  contravened the directions of this Court.  The  members of the selection committee have denied the  al-  legation  that they had exhibited any hostility towards  the  petitioner during the interview.  On the question as to what  happened  during the interview, we have only the version  of  the  petitioner  on the one side and of the members  of  the  committee on the other.  On the basis of the material before  us  it  cannot  be said that the  allegations  made  by  the  petitioner  are established.  The charge of mala fide  is  a  serious  charge  and  the  same has  to  be  established  by  satisfactory evidence.  The fact that the petitioner  could  not  get any outside evidence to establish what happened  at  the time of the interview cannot shift the burden that is on  him to prove his allegations.  It is true that at one stage, the selection committee called  for  interview several candidates other than those asked  to  be  interviewed  by  this Court.  When  those  persons  were  called  for interview, the petitioner approached this  Court  to restrain the selection  452  committee  from  interviewing  those  persons.   This  Court  declined  to go into that matter at that stage.   Thereafter  the  State of Tamil Nadu moved this Court for  clarification  of  our order.  We rejected that application as in our  view  the order did not require any clarification.  Thereafter the  selection   committee   refrained  from   interviewing   the

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candidates  whom it had called for interview in addition  to  those  whom  this  Court asked the  selection  committee  to  inter-view.  The members of the selection committee say that  they  did not clearly understand the scope of  our  judgment  and  it is in those circumstances they called for  interview  some  candidates  whom they ultimately  did  not  interview.  Though  this explanation is not very satisfactory  but  from  that  circumstance alone, we cannot come to  the  conclusion  that  the  selection committee had any ulterior  purpose  in  calling a large number of candidates for interview.  So  far  as  the illegalities said to  have  been  committed  during the interview are concerned, we shall separately deal  with  them.  But those illegalities do not establish  either  by   themselves   or  even  when   considered   along   with  circumstances mentioned above the plea of mala fide.  This  takes  us  to the illegalities alleged  to  have  been  committed  by the selection committee.  As mentioned in  our  earlier  judgment, the selection committee was  directed  to  interview the candidates under five different heads viz.-  1 .  Sports or National Cadet Corps activities;  2.   Extra Curricular special services;  3.   General Physical condition and endurance;  4.   General ability; and  5.   Aptitude.  The  Government allocated 75 marks for interview but it  did  not prescribe separate marks for the separate heads.  In the  previous writ petition, it was contended that the  interview  was  invalid  inasmuch as the Government did  not  prescribe  separate  marks  for  separate  heads.   We  rejected   that  contention with these observations :  "It  is true that the rule did not prescribe separate  marks  for separate heads.  But that in our opinion did not  permit  the selection committee to allot marks as it pleased.   Each  one  of  the tests prescribed had its  own  importance.   As  observed at foot-note 20 at p. 485 of American Jurisprudence  Vol.  15  that  the interviewers  need  not  record  precise  questions and answers when oral test(; are used to  appraise  personality  traits;  it  is sufficient  if  the  examiner’s  findings are recorded on the appraisal  453  sheet according to the personal qualifications itemised  for  measure.   A  contention similar to those  advanced  by  the  petitioners came up for consideration before the Mysore High  Court  in D. G. Viswanaih v. Chief Secretary of  Mysore  and  Ors.(1). There the Court observed thus  "it  is true that Annexure IV does not specifically  mention  the   marks   allotted  for  each  head.   But   from   that  circumstance  it  cannot  be held that  the  Government  had  conferred  an  unguided  power on the  Committees.   In  the  absence  of specific allocation of marks for each  head,  it  must be presumed that the Government considered that each of  the  heads  mentioned  in  Annexure IV  as  being  equal  in  importance  to any other.  In other words we have  to  infer  that  the intention of the Government was that each  one  of  those heads should carry 1/5th of the ’Interview marks’."  It is clear from our judgment that we quoted the decision in  Viswanath’s  case (supra) with approval.  But yet  when  the  impugned  selections  were  made,  the  selection  committee  allotted  marks to the various heads according to their  own  discretion.   It was admitted before us at the hearing  that  the  selection committee distributed the 75 interview  marks  among  the five heads mentioned above according to  its  own  discretion.  For some heads, 1 0 marks were allotted and for  others  25  marks.  The procedure adopted by  the  selection  committee  clearly contravened our judgment in  the  earlier

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writ  petition.  There is no substance in the plea  advanced  on  behalf of the selection committee that in the  operative  portion  of  our  order, we did  not  direct  the  selection  committee  that each one of the heads should carry 1/5th  of  the "interview" marks.  The selection committee was not  the  rule making authority.  The interview rules were made by the  Government.  The Government alone could have distributed the  marks  amongst the various heads.  In the absence of such  a  distribution, as mentioned by us in our earlier judgment, it  should be deemed that each one of those heads carried  equal  marks.  There can be no doubt that the procedure adopted  by  the  selection  committee  is likely to  have  affected  the  result of the interview.  As   seen  earlier,  one  of  the  heads  under  which   the  interviewers were asked to interview is "Snorts or  National  Cadet  Corps  activities".  It is not  Sports  and  National  Cadet Corps activities.  The requirement is either snorts or  National Cadet Corps activities.  Admittedly the  petitioner  produced a "A" certificate to show that he had the  National  Cadet Corps training.  But yet he was given  (1) A.I.R. 1964. Mys. 132.  454  only  five marks out of the 10 marks allotted for that  head  by  the selection committee.  The petitioner’s complaint  is  that  the selection committee had no right to cut  down  the  marks  to  which  he was entitled to.  We  called  upon  the  selection committee to disclose the basis on which the marks  were given for National Cadet Corps activities.  In response  to  that direction, the Chairman of the Selection  Committee  filed an affidavit on December 28, 1970.  In paragraph 4  of  his affidavit he deposed thus :  "Likewise  in  the  National Cadet  Corps  also,  there  are  various  grades and the candidate may have joined in  N.C.C.  in  school or college for one year or 2 years or more;  (ii)  passed  examinations and attained certificates and  stripes.  The  grades  arc certificate-A-Part 1, lowest in  rank  then  Part  11,  Certificate B, Certificate C being  the  highest.  Some candidates may in addition have attained promotions  as  Lance  Corporal,  Sergeant  or Under  Officer.   Marks  were  allotted  according  to  the  grades  as  shown  by  various  certificates."  In  the reply affidavit filed by one Ramanathan, a  relation  of  the  petitioner  (the petitioner is  a  minor),  it  was  averred as follows (in paragraphs 5 and 6 of the  affidavit)  :  "I state the averments in para 4 of the supplemental counter  affidavit are misleading and do not attempt to place  before  this  Honourable  Court  the entire facts.   The  N.C.C.  is  divided  into  two Divisions, namely,  Junior  Division  and  Senior  Division.  The Junior Division N.C.C.  is  conducted  only  in the High Schools, while the Senior Division  N.C.C.  only in the colleges.  The ’A’ Certificate is issued to  the  Junior  Division N.C.C. cadets who pass the ’A’  Certificate  Examination,  while the ’B’ and ’C’ Certificates are  issued  to  the Senior Division N.C.C. Cadets who pass the  ’B’  and  ’C’  Certificate  Examinations  respectively  held  in   the  Colleges  for the Senior Division.  As such, a  High  School  student would be eligible to obtain only an ’A’  Certificate  and not the ’B’ and ’C’ Certificates.  6.   The  students  who appeared for the  selection  to  the  Medical course for the year 1970-71 could not have  obtained  a  ’B’ or a ’C’ Certificate for the reason that  N.C.C.  was  discontinued  in the State of Tamil Nadu in all Schools  and  Colleges  in  Jan. 1968.  In the Anglo Indian  Schools,  the  school  year  ends  in December, while in the  rest  of  the

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schools  the  school year is from June April.  The students        studying in the High Schools other than Anglo-        Indian Schools during the year 1967-68  455  would  ,  therefore, not have obtained even  an  ’A’  Certi-  ficate, as the Certificate is issued after undergoing train-  ing  for  a period of one year and then passing,  he  exami-  nation.   The  petitioner  obtained such  a  certificate  in  January, 1968 for the N.C.C. Course of one year in regard to  which  he  wrote  his  examination in  October,  1967.   The        students  studying in the schools  other  than        the  Anglo-Indian  Schools  would,  therefore,        have  not  been  able to obtain  even  an  ’A’        Certificate  for the year 1967-68,  since  the        N.C.C. was discontinued in the middle of their        academic year, N.C.C. was resumed in the State        of  Tamil Nadu only in November 1969;  and  as        such  students  studying in  the  schools  and        colleges in the State of Tamil Nadu would  not        have  been  Able  to get the ’A’  ’B’  or  ’C’        Certificate  in  the  Schools  and   ’Colleges        during the academic year 1968-69 or 1969-70: ’ The petition er, therefore, sumbits that  none        among  the  students  who  appeared  for   the        selection  to the Medical Course for the  year        1970-71  could  have obtained the ’B’  or  ’C’        Certificates, the ’A’ Certificate,  therefore,        was  in effect the highest certificate that  a        candidate  appearing  for  selection  for  the        Medical  Course  for the  year  1970-71  could        possibly obtain.  Even this certificate  would        not  be available to the students passing  out        of  the  schools other than  the  Anglo-Indian        Schools  and who appeared for  this  selection        for the Medical Course 1970-71.  It is a  mat-        ter  of easy verification as to who among  the        24 selected candidates or the 11.4  candidates        eligible for the selection for these 24  seats        in  fact possessed the N.C.C. ’A’  Certificate        or even the ’B’ and ’C’ certificates."  No  reply was made to the allegations quoted above. Nor  was  the   learned  Advocate  General  of  Tamil  Nadu  able   to  controvert those allegations.  Under those circumstances  we  must hold that selection committee had proceeded on a wholly  wrong premises while granting marks under the head "National  Cadet Corps activities".  For  the reasons mentioned above we hold at  the  selections  made are vitiated and as such they cannot be sustained.   We  were  informed  that the 24 students  whose  selections  are  impugned  in the present writ petition have  already  joined  one or the other medical college in the State of Tamil  Nadu  and  they have been attending classes for over a month.   In  view  of the hardship that may be caused to  those  innocent  students,  by the order that we, proposed to make, we  asked  the Advocate General of Tamil Nadu on January 4, 1971,  when  the petition came no for hearing to see if he could persuade  the Government of Tamil Nadu to admit  456  the  petitioner in any one of the medical colleges in  Tamil  Nadu  and thus avoid the unpleasant consequence.   For  that  purpose we adjourned the petition to the 7th of this  month.  When  the  matter  was taken up on that  date,  the  learned  Advocate General informed us that the Government was  unable  to accept our suggestion.  That day the hearing of the  case  was  completed.   Bearing in mind the  serious  consequences

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that  our order is likely to have on those 24  students,  we  again   asked  the  Advocate-General  to  explain   to   the  Government  the hardship that is likely to be caused to  the  selected  students for no fault of their own and  inform  us  the  decision  of the Government before the  14th  of  this  month.  The Government’s reaction was not favourable.  Hence  there  is  no alternative before us but to  allow  the  writ  petition, quash the impugned selections and direct the Stale  of  Tamil  Nadu to appoint a fresh selection  committee  for  making  selections  in  accordance  with  our  order   dated  September 23, 1970.  The State of Tamil Nadi, shall pay  the  costs of the petitioner in this writ petition.  V.P.S.                                              Petition  allowed  457