http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 18  

PETITIONER: ASIF HAMEED & ORS. ETC. ETC.

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR & ORS. ETC. ETC.

DATE OF JUDGMENT03/05/1989

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SINGH, K.N. (J) SHETTY, K.J. (J)

CITATION:  1989 AIR 1899            1989 SCR  (3)  19  1989 SCC  Supl.  (2) 364 JT 1989 (2)   548  1989 SCALE  (1)1547  CITATOR INFO :  R          1990 SC1251  (11)

ACT:    Constitution  of India, 1950: Articles 32,  226--Judicial review-Court  not  an  appellate  authority--Not  to  advise executive  in matters of policy--Doctrine of  separation  of powers----What is.     Professional  Colleges--Admission  to  Jammu  &  Kashmir Government  Medical  Colleges (Selection of  Candidates  for Admission)  Procedure  Order  1987.  Clause 2(b),  2(c),   3 and  4  High Court-Whether competent to issue  direction  to State  Government to constitute ’Statutory Body’ for  selec- tions to medical colleges.

HEADNOTE:     A  number  of unsuccessful candidates  to  the  MBBS/BDS course  in  the two Government medical colleges of  Jammu  & Kashmir  for the 1988-89 Session had challenged in the  High Court  of  Jammu  and Kashmir the  selection  to  the  above courses  on the ground that the selection was  violative  of the directions of the High Court in Jyotshana Sharma &  Ors. v. State of Jammu & Kashmir, (decided on 17.4.1987). In that case,  the  High Court had directed the State of  Jammu  and Kashmir to entrust the selection process of the two  medical colleges to a statutory independent body, and till that  was done,  to  entrust the process of selection to such  a  body which was to be free from executive influence. In  deference to the observations of the High Court, the State  Government issued  the  Jammu  & Kashmir  Government  Medical  Colleges (selection  of  candidates  for  admission  to  first   year MBBS/BDS  course and other professional courses)  Procedure, Order,  1987. The Order provided for the constitution  of  a Competent Authority for the purpose of making selections  to the  professional courses. Another order was  issued  laying down  the qualifications, functions, conditions  of  service and powers and duties of the Competent Authority.     The High Court allowed the writ petitions on the  ground that  the selection was in violation of the  court’s  direc- tions  in Jyotshana Sharma’s case. The High Court  held  the directions  in  Jyotshana Sharma’s case to be of  a  binding

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 18  

nature and it reiterated the same by issuing a mandamus. 20       Earlier  the petitioners had filed a writ  petition  in the  High Court challenging the appointment of Prof.  Satish Raina  as the Competent Authority and non-implementation  of the  directions in Jyotshana Sharma’s case. The  High  Court has  disposed  of  the writ by a consent  order.  The  order observed  that  the State Government had  reconstituted  the Competent  Authority by appointing two more persons  on  it, that  the reconstituted competent authority shall  carry  on with  the selection process, and the petitioners shall  have liberty to challenge the selection if still aggrieved on any ground. Later, a committee of three academicians was consti- tuted by the Government to assist the Competent Authority.     It was contended on behalf of the State and the selected candidates  that the High Court did not have the  competence to issue directions to the State Government to constitute  a "Statutory Body" for selections to medical colleges. It  was further  urged that the observations in  Jyotshana  Sharma’s case  were  in the nature of suggestions only, and  even  if those  observations were taken as directions, the  same  had been complied with.     On  behalf of the unsuccessful candidates it  was  inter alia contended that (1) the reconstituted competent authori- ty consisting of three members never functioned because Shri J.P.  Kesar did not join the other two members at any  stage of  the  selection;  (2) the scrutiny was not  done  by  the competent  authority but by the committee appointed  by  the State Government; (3) the committee appointed to assist  the Competent Authority could only be appointed by the Authority itself  and not by the Government; and (4) there  were  dis- crepancies in the criterion, method and procedure of holding the entrance examination and the viva voce.     Allowing the appeals filed by the State and the success- ful  candi-’ dates and dismissing the appeals filed  by  the unsuccessful candidates, this Court.     HELD: (1) Although the doctrine of separation of  powers has not been recognised under the Constitution in its  abso- lute rigidity but the Constitution makers have  meticulously defined the functions of various organs of the State. Legis- lature,  Executive  and Judiciary have  to  function  within their  own spheres demarcated under the Constitution.  [30H; 31A] (2)  Judicial  review is a powerful weapon to  restrain  un- constitu- 21 tional  exercise of power by the legislature and  executive. The  expending horizon of judicial review has taken  in  its fold  the  concept  of social and  economic  justice.  While exercise  of  powers  by the legislature  and  executive  is subject  to  judicial restraint, the only check  on  Court’s exercise of power is the self imposed discipline of judicial restraint. [31C-D] Trop v. Dulles, 356 US 86, referred to.     (3)  When a State action is challenged, the function  of the  court is to examine the action in accordance  with  law and  to determine whether the legislature or  the  executive has acted within the powers and functions assigned under the Constitution  and  if not, the court must  strike  down  the action.  While  doing so the court must  remain  within  its self-imposed limits. [32B]     (4) While exercising power of judicial review of  admin- istrative  action, the court is not an appellate  authority. The  Constitution  does not permit the court  to  direct  or advise  the executive in matters of policy or  to  sermonize

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 18  

qua any matter which under the Constitution lies within  the sphere of legislature or executive, provided these  authori- ties do not transgress their constitutional limits or statu- tory powers. [32C]     (5) The High Court’s direction for constituting  "Statu- tory Independent Body" obviously mean that the State  legis- lature  must enact a law in this respect.  The  Constitution has laid down elaborate procedure for the legislature to act thereunder.  The  legislature is supreme in its  own  sphere under the Constitution. It is solely for the legislature  to consider  as to when and in respect of what  subject  matter the laws are to be enacted. No directions in this regard can be  issued to the legislature by the courts. The High  Court was,  therefore, patently in error in issuing directions  in Jyotshana  Sharma’s  case and reiterating the  same  in  the judgment under appeal. [33C-D]     Narender  Chand  Hem Raj & Ors. v. Lt.  Governor,  Union Territory,  Himachal  Pradesh & Ors., [1972] 1 SCR  940  and State of Himachal Pradesh v. A parent of a student of  medi- cal college, Simla & Ors., [1985] 3 SCC 169, referred to.     (6)  The Legislature of Jammu & Kashmir having not  made any law pertaining to medical education the field is  exclu- sively to be operated by the executive under Article 162  of the  Constitution  of India read with section 5 of  Jammu  & Kashmir Constitution. [34F] 22     (7)  When the Constitution gives power to the  executive Government to lay down policy and procedure for admission to medical  colleges in the State, then the High Court  has  no authority to divest the executive of that power. [34F-G]     (8) The procedure for selection laid down by the  execu- tive  as well as the selection are always open  to  judicial review  on  the ground of unreasonableness or on  any  other constitutional or legal infirmity. [34H]     (9)  The  State Government have  substantially  complied with  the  directions of the High Court  by  issuing  orders constituting  the  Competent  Authority  and  providing  for method and elaborate procedure for making selections to  the medical colleges. [35F]     (10)  The  three members authority was not  a  statutory authority. It was entrusted with the functions of  executive nature. The mere fact that one member did not participate in the  selection  does not ipso facto  render  the  selections illegal. [36C-D]     United Commercial Bank Ltd. v. Their Workmen, [1951] SCR 380, distinguished-     (11)  In the absence of any statutory provision  to  the contrary,  it was perfectly legitimate for the authority  to function with two members. [37C-D]     Avadh  Bihari  Sinha  v.  University  of  Bihar,   (C.A. 1650/67) decided by this Court on 4.1.1968, distinguished.     (12)  Selection of candidates for admission  to  medical colleges  does not involved performance of any  judicial  or quasi-judicial functions. [36H]     (13) The purpose of appointing a committee was to assist the  competent authority. The scrutiny having been  approved by  the  competent  authority, it cannot be  said  that  the competent  authority abdicated its powers to the  committee. [37H; 38A]      (14)  The objective test for the  entrance  examination and viva voce for admission to the MBBS course in the  medi- cal colleges of Jammu & Kashmir was the accepted method  for selection. [39G] Kaushal Kr. Gupta v. State of Jammu & Kashmir, [1984] 3 SCR 23

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 18  

407  and  Atul Khullar v. State of Jammu &  Kashmir,  [1986] Supp. SCC 225, referred to.      (15)  There is no material on the record to  show  that the  procedure followed to fill the reserved/general  vacan- cies has resulted in excessive representation to the reserve category. [40G]      (16)  It  was open to the authority to either  fix  the minimum percentage of marks in the written test for  provid- ing  eligibility or to indicate the qualifying cut-off  line by  calling  candidates  for viva voce in  relation  to  the number of vacancies. [41B]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION Civil Appeal No.  2711  of 1989 etc. etc.     From the judgment and order dated 9.12.88 of the Jammu & Kashmir High Court in WP. No. 1304 of 1988.     G.L.  Sanghi,  Prithvi Raj, M.H. Baig, Anil  Dev  Singh, B.Sen,  D.D. Thakur, Altar Ahmed, A.D. Singh,  H.D.  Pathak, D.C. Raina, Vijay Lakshimi Menon, S.K. Bhattacharya,  Salman Khurshid, L.R. Singh, R.C. Gandhi, P.D. Sharma, P.S. Shroff, S.S.  Shroff,  S.A. Shrooff, Ramesh C. Pathan,  S.  Joginder Singh,  Jaswant  Singh Kotwal, E.C.  Agarwala,  Ms.  Purnima Bhatt, A.P. Aggarwal, Atul Sharma, V.K. Gupta, D.B. Sawhney, B.B. Sawhney, R. Satish, S.S. Lehar, DaIveer Bhandari,  Bhim Singh,  R.C.  Pathak, Suhail Dutt, Ms. V. Menon,  Ms.  Indra Sawhney,  Subhash Sharma and Anil Vaidhya for the  appearing parties. The Judgment of the Court was delivered by     KULDIP  SINGH, J. Special Leave is granted in all  these petitions.     The  selection  to the MBBS/BDS course for  the  session 1988-89  in the two Government medical colleges of  Jammu  & Kashmir has been set aside in a bunch of writ petitions by a Division Bench of Jammu & Kashmir High Court on the  follow- ing grounds:                 (I) The selection was not held in accordance               with the directions of the said court given in               an earlier case Jyotshana Sharma and Ors.,  v.               State of Jammu & Kashmir, decided on 17th of               24               April,  1987  (hereinafter  called   Jyotshana               Sharma’s  case). In that case the  High  Court               directed  the State Government to entrust  the               selection process of the two medical  colleges               to a statutory independent body and till  that               was  done the State Government should  entrust               the process of selection to such a body  which               was  to be free from executive  influence.  No               statutory  body  was  constituted  and   hence               according to the High Court the selection made               by any other authority was in violation of the               directions  of the High Court and as such  bad               in law.                  (II)  The  selection was not  held  by  the               competent  authority  as  constituted  by  the               order of the High Court dated 17th of October,               1988. Under the said order, competent authori-               ty, was to consist of three persons. According               to the High Court all the three persons  never               met  and  all of them  never  scrutinised  the               cases  of the candidates who appeared  in  the               entrance examination and viva voce and as such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 18  

             the selection was invalid.     The State of Jammu & Kashmir and the selected candidates have  challenged  the above judgment of the  High  Court  in these  appeals. Some of the unsuccessful petitioners  before the  High Court have also raised various additional  grounds of challenge to the selection.     Although  various  arguments have been advanced  by  the learned counsel for the parties which we propose to  examine but the primary question for consideration in these  appeals is whether the High Court has the competence to issue direc- tions to the State Government to constitute "Statutory Body" for selections to medical colleges and whether the selection made by any other authority is invalid on that ground alone. The  necessary  facts to understand the controversy  are  as under.     Jyotshana  Sharma  and a number  of  other  unsuccessful candidates  for  admission to the two  medical  colleges  of Jammu  & Kashmir for the year 1986-87 challenged the  selec- tion  by way of large number of writ petitions.  A  Division Bench  of the High Court by its judgment dated  17th  April, 1987 upheld the selection in general but allowed some  indi- vidual writ petitions on different grounds. The Bench, after adjudicating upon the points involved in the writ petitions, made the following observations: 25               "Before parting with these writ petitions,  we               would like to say something about the  process               of selection and about the safeguards required               to be made by the authorities about the reser-               vation of some categories.               In  future State Government shall entrust  the               selection process of the two medical  colleges               to  a statutory independent body who  will  be               vested  with the power to conduct  examination               of written as also of viva voce."               "...  The  need to have a statutory  body  for               making  the selection and for  conducting  the               competitive test has arisen because the candi-               dates  every year and this year also had  made               grievance  about the General Department  being               associated  with the selection process of  the               candidates. It is generally felt that  General               Department is a branch of the administration &               is under the direct influence of the  Adminis-               tration.  Therefore, fairness and  objectivity               of selection cannot be achieved unless  selec-               tion is ensured to be done by some independent               body  free from executive influence.  We  have               considered this argument & examined the matter               in its all aspects  ......  "               "... Therefore, it is ideal that an  independ-               ent statutory body is constituted for  conduct               of  entrance test for the MBBS/BDS  course  in               the  State which body shall be kept free  from               executive influence. Till that is done,  State               may entrust the process of selection to such a               body which will be free from executive  influ-               ence.  At any rate we do not approve  Training               Branch,  or any other department of the  State               Government under the control of Administration               or associate with the process of selection for               the  MBBS/BDS  course  in  the  State  Medical               Colleges. Selection Committee, till a statuto-               ry body is constituted, shall consist of  such               persons  who are academicians of high  calibre

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 18  

             and  with the process of selection  principals               of the two medical colleges shall  necessarily               be associated.                   For evaluation of the answer scripts  till               a scientific method of setting up of independ-               ent statutory body is evolved, as suggested by               us, the evaluation of answer scripts shall  be               made  through  such  examiners  who  shall  be               appointed in each subject in consultation with               the Vice               26               Chancellors of the two Universities of Jammu &               Kashmir."     Consequent  upon  the  aforesaid  directions  the  State Government  issued an order by a notification SRO 291  dated 18th  of  May, 1987 called the Jammu  &  Kashmir  Government Medical  Colleges (selection of candidates for admission  to first  year MBBS/BDS course and other professional  courses) Procedure Order, 1987. (hereinafter called SRO 291). Clauses 2(b), 2(c), 3 and 4 of the Order are as under:               "2(b) Competent Authority" means the authority               constituted by the Government for the  purpose               of   making  selection  to  the   professional               courses."               "2(c)  Committee" means the committee  of  ex-               perts  constituted by the Competent  Authority               for  the  purpose of assisting  the  Competent               Authority  making  selection  to  professional               courses." 3. "PERCENTAGE FOR FILLING UP SEATS The available seats shall be filled up:  i)        From open merit category        50%  ii)       From reserved category          50%,, 4. "MERIT      The inter-se merit of the candidate shall be determined on the basis of the following:  i)        written test                   85 points  ii)       viva voce                      15 points                                 Total     100 points The points earmarked for viva voce will be sub-divided  into the following factors:  i)        Aptitude                    8 points  ii)       G.K.G.E                     7 points                              Total     15 points" 27     On 18th of May, 1987 the Government also issued  another Order called "The Competent Authority" functions, Conditions of  Service and Powers (Order) of 1987  (hereinafter  called 1987 Order). Clauses 1, 2 and 5 of the Order are  reproduced as under:               1. "Qualification for appointment               A  person shall not be qualified for  appoint-               ment  as  Competent  Authority  unless  he  is               educationist of repute having served the State               for a period of not less than 25 years."               2. "Resignation and removal               (a)  A person appointed as the  Competent  Au-               thority  under  clause (b) of the  said  Order               may,  by  notice  in writing  under  his  hand               addressed to the Government resign his office.               (b)  The  competent  authority  shall  not  be               removed  from  his office except by  an  order               made by the Government on the ground of proved               misconduct  or  incapacity after  an  enquiry,               made in which the competent authority had been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 18  

             informed of the charges against him and  given               a  reasonable  opportunity of being  heard  in               respect of those charges."               5. "Powers and Duties                      (i) The Competent Authority shall  have               the following powers and duties namely:               (a)  To conduct written tests and hold  inter-               views  and  take such other steps  as  may  be               considered necessary for the purpose of making               selection to the professional courses.               (b)  To select and invite experts and  appoint               examiners for the purpose specified in  clause               (a).               (c) To appoint committees of persons specified               in clause (b) for the purpose of assisting the               Competent  Authority  in making  selection  to               professional course.               28               (d)  To  incur such expenditure  as  shall  be               necessary for the due discharge of his  powers               under  this para, out of the funds  placed  at               his  disposal by the Government from  time  to               time.                      (ii)  Subject to the orders  issued  by               the  Government  in this behalf from  time  to               time  the competent authority shall  be  fully               independent for exercise of the powers  vested               in him in this paras".     Thereafter under SRO 29 1 one Shri Satish Raina, retired principal,  S.P.  College, Srinagar, was  appointed  as  the Competent Authority on 19.5. 1987.     Meanwhile the selection to the medical colleges for  the year  1987-88 was also challenged in a number of writ  peti- tions. The judgment was delivered in Farooq Ahmed Bacha  and others v. State of Jammu & Kashmir, and connected  petitions on th of June, 1988. Both the Judges constituting the Bench, differed and as such by formulating points of difference the case  was referred to a third Judge. The main  challenge  in Bacha’s  case was to Government notification SRO 460A  which provided 50% reservations for female candidates.     While  Bacha’s case was pending before the third  Judge, the  process of selection for admission to the medical  col- leges  for  the  session 1988-89 had  commenced  and  almost completed.  The  written  test was held on 7th  and  8th  of August, 1988 and the result was published on 25th of August, 1988. The viva voce test was held from 29th August, 1988  to 7th  of September, 1988. While the viva voce test was  going on,  a  Bunch of writ petitions including Rajeev  Mahajan  & others  v. State of Jammu & Kashmir, were filed in  Jammu  & Kashmir  High  Court challenging the  appointment  of  Prof. Satish  Raina as competent authority and  non-implementation of the directions in Jyotshana Sharma’s case. It was  prayed that the writ petitioners be declared to have qualified  the written test and they be called for viva voce.     While these petitions were pending, the State Government superseded  the  Order dated 19th of  May,  1987  appointing Prof. Satish Raina as competent authority and instead issued a  fresh Order dated 15.9.1988 reconstituting the  competent authority  consisting of Dr. Aga Ashraf Ali, Mr. J.P.  Kesar and  PrOf. Satish Raina. The writ petitions  Rajeev  Mahajan and  others v. State of Jammu & Kashmir & Ors., came up  for hearing on 17th of October, 1988 and the High 29 Court  disposed off the writ petitions by a  consent  order, which is as under:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 18  

             "It has been pointed out that Government  have               issued   order  No.  1347-GD  of  1988   dated               15.9.1988 reconstituting the Competent Author-               ity  in supersession of Government  Order  No.               923-GD  of 1987 dated May 19, 1987  consisting               of (1) Dr. Aga Ashraf Ali (2) Shri J.P.  Kesar               and (3) Prof. Satish Raina.               As  agreed to by the learned counsel for  both               the  sides,  the  selection  process  for  the               selection  of candidates for admission to  1st               year MBBS/BDS course 1988-89 shall be  carried               out by the above said reconstituted  competent               authority after scrutinizing all the cases  of               the  candidates who appeared in  the  entrance               examination.  Petitioner  shall  however  have               liberty to challenge the selection if he still               feels  aggrieved on all the grounds which  are               available to him.               Considering  the above said agreed  order,  we               dispose of .the petition and order  according-               ly. The stay order passed earlier shall  stand               vacated and the connected CMPs disposed of."     On  22nd  October, 1988 a committee consisting  of  Prof M.Y.  Tawana, Retired Controller of Examination,  University of  Kashmir, Dr. Y. Singh, Prof. of Physics,  University  of Kashmir and Dr. Abdul Azim, Reader in Mathematics, Universi- ty  of  Kashmir,  was constituted to  assist  the  competent authority.     On 27th of October, 1988 list of selected candidates  to the  MBBS/BDS course for the session 1988-89 was  published. Thereafter, Rajeev Mahajan and number of other  unsuccessful candidates started second round of litigation by filing writ petitions in the High Court on 29th October, 1988.     While  the second batch of petitions was pending  before the  High Court, on 2 Ist November, 1988 the  learned  Chief Justice in the capacity of a third Judge, delivered judgment on  the reference in Farooq Bacha’s case. The learned  Chief Justice in the last para of judgment observed as under: 30               "Before parting with the case and even at  the               cost of repetition, I would like to  emphasize               on  the state government that to ensure  fair-               ness  in  the selection  to  the  professional               colleges, an autonomous independent  statutory               body, with security of tenure for its members,               should  be created expeditiously, to  function               as far as possible, on the lines suggested  by               the Division Bench in Jyotshana Sharma’s  case               and the stop-gap arrangement made by reconsti-               tuting  the  competent  authority   comprising               three  gentlemen, as noticed  earlier,  should               not  be considered as a substitute for it.  In               the  interim period, the reconstituted  Compe-               tent Authority should also function keeping in               view  the guidelines given by the  apex  court               and this court in various judgments, including               the  ones in Jyotshana Sharma’s case  and  the               submission of Mr. B .A. Khan."     The  batch  of writ petitions Rajeev Mahajan &  Ors.  v. State  of  Jammu & Kashmir & ors. was finally heard  by  the High  Court on 29th of November, 1988 and the  judgment  was pronounced on 9th of December, 1988. The High Court  allowed the writ petitions holding that the list of selected  candi- dates  was liable to be quashed on the ground of its  having been issued in violation of court’s directions in  Jyotshana

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 18  

Sharma’s  case. The High Court, however, directed  that  the respondent-state should reconstitute the competent authority within a period of 2 weeks for finalising the selection  for the  session  1988-89 on the basis of written  test  already conducted  excluding the viva voce. It was further  directed by the High Court that the marks obtained by the  candidates in the Science subjects of the qualifying examination may be equated with 15 points reserved for viva voce and be awarded to  the candidates proportionately according to their  merit in the Science subjects in the qualifying examination.  Such points be added in the points obtained by the candidates  in the  written entrance test already conducted and  thereafter the merit list of the candidates be prepared. The High Court has held the directions in Jyotshana Sharma’s case to be  of binding  nature  and  it reiterated the same  by  issuing  a mandamus.  The  present appeals are  against  the  aforesaid judgment of the Jammu & Kashmir High Court.     Before adverting to the controversy directly involved in these  appeals  we  may have a fresh look  on  the  inter-se functioning  of  the  three organs of  democracy  under  our Constitution. Although the doctrine of separation of  powers has not been recognised under the Constitution in its  abso- lute rigidity but the Constitution makers have 31 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  trusts  to  the judgment of  these  organs  to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of  democ- racy  depends upon the strength and independence of each  of its  organs.  Legislature and executive, the two  facets  of people’s  will, they have all the powers including  that  of finance.  Judiciary  has no power over sword  or  the  purse nonetheless  it has power to ensure that the  aforesaid  two main  organs  of State function  within  the  constitutional limits. It is the sentinel of democracy. Judicial review  is a  powerful weapon to restrain unconstitutional exercise  of power by the legislature and executive. The expanding  hori- zon of judicial review has taken in its fold the concept  of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial  restraint, the  only  check on our own exercise of power  is  the  self imposed discipline of judicial restraint.     Frankfurter, J. of the U.S. Supreme Court dissenting  in the  controversial expatriation case of Trop v. Dulles,  356 US 86 observed as under:               "All  power  is, in Madison’s phrase,  "of  an               encroaching  nature".  Judicial power  is  not               immune  against this human weakness.  It  also               must  be on guard 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 rela-               tionship  of  two  concepts  that  too  easily               coalesce.  No  less does it require  a  disci-               plined will to adhere to the difference. It is               not  easy  to stand aloof and  allow  want  of               wisdom  to  prevail  to  disregard  one’s  own

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 18  

             strongly  held  view of what is  wise  in  the               conduct of affairs. But it is not the business               of  this  Court to pronounce policy.  It  must               observe a fastidious regard for limitations on               its own power, and this precludes the  Court’s               giving  effect to its own notions of  what  is               wise or politic. That self-restraint is of the               essence  in  the observance  of  the  judicial               oath, for the Constitution has not               32               authorized  the judges to sit in  judgment  on               the wisdom of what Congress and the  Executive               Branch do."     When  a State action is challenged, the function of  the court is to examine the action in accordance with Law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitu- tion  and  if not, the court must strike  down  the  action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a  coor- dinate  branch of the Government. While exercising power  of judicial  review of administrative action, the court is  not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the  Constitution lies within the sphere of legislature of executive, provided these  authorities  do not transgress  their  constitutional limits or statutory powers.     Now  coming to the judgment under appeal the High  Court says  that its directions issued in Jyotshana Sharma’s  case have  not  been complied with thereby rendering  the  state- action  in  making selections for admission to  the  medical colleges  invalid.  To examine the High Court  reasoning  we have to see, as to which of the three organs of the State is entrusted,  under  the Constitution, with  the  function  of taking a policy decision regarding management and admissions to medical colleges in the State. Both the medical  colleges at Jammu and Srinagar are Government institutions. Entry  25 List III of Seventh Schedule, Article 246(2) and Article 162 of the Constitution of India and Section 5 of the  Constitu- tion  of Jammu & Kashmir which are relevant, are  reproduced hereinafter:               "Entry  25.  Education,   including  technical               education, medical education and universities,               subject  to the provisions of Entries 63,  64,               65 and 66 of List 1; vocational and  technical               training of labour"               "Art.  246.  Subject-matter of  laws  made  by               Parliament   and   by  the   Legislatures   of               States--(2) Notwithstanding anything in clause               (3),  Parliament, and, subject to clause  (1),               the Legislature of any State also, have  power               to  make laws with respect to any of the  mat-               ters  enumerated  in List III in  the  Seventh               Schedule (in this Constitution referred to  as               the "Concurrent List")."               33               "Art.  162.  Extent  of  executive  power   of               State--Subject  to  the  provisions  of   this               Constitution,  the executive power of a  State               shall  extend to the matters with  respect  to               which  the Legislature of the State has  power               to make laws."               "Section  5. Extent of executive and  legisla-               tive  power of the State --The  executive  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18  

             legislative power of the State extends to  all               matters  except  those with respect  to  which               Parliament  has  power to make  laws  for  the               State under the provisions of the Constitution               of India."     The  High Courts directions for constituting  "Statutory Independent Body" obviously mean that the State  legislature must  enact  a  Law in this respect.  The  Constitution  has laid-down  elaborate  procedure for the legislature  to  act thereunder.  The  legislature is supreme in its  own  sphere under the Constitution. It is solely for the legislature  to consider  as to when and in respect of what subject  matter, the laws are to be enacted. No directions m this regard  can be  issued to the legislature by the courts. The High  Court was,  therefore, patently in error in issuing directions  in Jyotshana  Sharma’s  case and reiterating the  same  in  the judgment under appeal.     This  Court  in  Narender Chand Hem Raj &  Ors.  v.  Lt. Governor, Union Territory, Himachal Pradesh & Ors.,   [1972] 1 SCR 940 observed as under:               "The  power  to impose tax  is  undoubtedly  a               legislative power. That power can be exercised               by  the  legislature directly  or  subject  to               certain conditions, the legislature may  dele-               gate  that power to some other authority.  But               the  exercise  of that power  whether  by  the               legislature or by its delegate is an  exercise               of  a  legislative power. The  fact  that  the               power was delegated to the executive does  not               convert that power into an executive or admin-               istrative power. No court can issue a  mandate               to  a legislature to enact a  particular  law.               Similarly  no court can direct  a  subordinate               legislative  body to enact or not to  enact  a               law which it may be competent to enact."                   In  the  State of Himachal  Pradesh  v.  A               parent of a student of medical college,  Simla               and ors., [1985] 3 SCC 169 this court held  as               under:               34               "...  The  directions given  by  the  Division               Bench was really nothing short of an  indirect               attempt  to  compel the  State  Government  to               initiate  legislation with a view  to  curbing               the  evil  of  ragging, for  otherwise  it  is               difficult  to  see why, after the  clear.  and               categorical  statement by the Chief  Secretary               on  behalf  of the State Government  that  the               Government will introduce legislation if found               necessary  and so advised, the Division  Bench               should  have proceeded to again give the  same               direction. Thus the Division Bench was clearly               not  entitled to do. It is entirely  a  matter               for the executive branch of the Government  to               decide whether or not to introduce any particular le gislation. Of course, any  member of  the legislature can also introduce legislation  but  the court  certainly cannot mandate the executive or any  member of the legislature to initiate legislation, howsoever neces- sary  or desirable the court may consider it to be. That  is not a matter which is within the sphere of the functions and duties    allocated    to   the    judiciary    under    the Constitution  ...... " "...  But at the same time the court cannot usurp the  func- tions  assigned to the executive and the  legislature  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18  

the  Constitution and it cannot even indirectly require  the executive  to  introduce  a particular  legislation  or  the legislature  to  pass it or assume to itself  a  supervisory role over the law-making activities of the executive and the legislature."     The  legislature of Jammu & Kashmir having not made  any law pertaining to medical education the field is exclusively to  be  operated by the executive under Article 162  of  the Constitution of India read with Section 5 of Jammu & Kashmir Constitution.  When  the  Constitution gives  power  to  the executive  Government to lay-down policy and  procedure  for admission  to  medical colleges in the State then  the  High Court  has  no  authority to divest the  executive  of  that power.  The State Government in its executive power, in  the absence of any law on the subject, is the competent authori- ty  to prescribe method and procedure for admission  to  the medical colleges by executive instructions but the High Court  transgressed its self imposed limits in  issuing  the aforesaid  directions for constituting statutory  authority. We  would  make it clear that the  procedure  for  selection laid-down  by  the  executive as well as  the  selection  is always  open to judicial review on the ground of  unreasona- bleness or on any other constitutional or legal infirmity. 35     Mr.  Altaf  Ahmed,  learned Advocate  General,  Jammu  & Kashmir, appearing for the State, Mr. M.H. Baig and Mr. G.L. Sanghi,  learned counsel appearing for the  selected  candi- dates,  have  contended that the observations  in  Jyotshana Sharma’s  case  were  in the nature of  suggestions  by  the Court. It is further argued that even if those are taken  to be directions, the same have been complied with by the State Government. There was no issue before the court in Jyotshana Sharma’s  case regarding method or procedure adopted by  the Government for making selections. None of the parties argued for  Statutory Body on the ground of lack of  confidence  in the executive. A bare reading of the judgment shows that the Bench,  before  parting with the  judgment,  laid-down  some guidelines  for the Government to follow. The learned  Chief Justice  in his judgment in Farooq Bacha’s case,  reiterated the necessity of having an autonomous independent  statutory body "on the lines suggested by the Division Bench in  Jyot- shana  Sharma’s  case." The learned  Chief  Justice  rightly treated the Bench’s observations as suggestions and we agree with  the same. There is also force in the  contention  that assuming the said suggestions to be the directions, the same have  been  complied with. SRO 29 1 was issued as  a  conse- quence  of  the  judgment in Jyotshana  sharma’s  case.  The notification  specifically states "whereas a Division  Bench of  the  High Court by judgment and order 17th  April,  1987 inter-alia made certain suggestions for improving the system for  making admission to MBBS/BDS course in the State,  now, therefore,  in  deference to the observations  of  the  High Court  of  Jammu & Kashmir  .....    the  Government  hereby makes  the following order  .....  "Mr. Bhim Singh,  learned counsel appearing for the unsuccessful candidates,  however, argued that the principals of two medical colleges have  not been  associated with the selections. That may be so but  we are  satisfied that SRO 291 read with 1987 Order  issued  by the  State  Government which provide  method  and  elaborate procedure  for making selections to the medical colleges  of Jammu & Kashmir substantially comply with the directions  of the High Court.     Mr. Bhim Singh, Mr. Anil Dev Singh, Mr. D.D. Thakur  and Mr.  Salman Khurshid, the learned counsel appearing for  the unsuccessful  candidates have vehemently contended that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18  

reconstituted  competent authority consisting of three  mem- bers  never functioned because Shri J.P. Kesar did not  join the other two members at any stage of the selection process. It was also contended that the scrutiny as per consent order dated  17th  October,  1988 was not done  by  the  competent authority  but by the committee appointed by the State  Gov- ernment.  Before examining these contentions we  may  notice that the competent 36 authority  was reconstituted on 15th September, 1988 by  the State  Government and it was approved by the High  Court  in the  consent order dated 17th of October, 1988. The  written test  had  taken place on 7th and 8th August, 1988  and  the result  thereof was published on 25th of August,  1988.  The viva  voce test was held from 29th August, 1988 to 7th  Sep- tember,  1988.  The whole of the process  of  selection  was almost complete on 17th October, 1988 when the consent order reconstituting  the  competent authority was passed  by  the High  Court. The competent authority was only to  scrutinize the selections. There are no specific allegations of  favou- ritism or arbitrariness in the conduct of entrance  examina- tion or the viva voce.     We  may now examine the submissions. It is  an  admitted fact that Mr. J.P. Kesar never functioned as part of  compe- tent  authority. The scrutiny and compilation of the  selec- tions was done by two members namely Dr. Aga Ashraf Ali  and Prof.  Satish  Raina. The three member authority was  not  a statutory authority. It was entrusted with the functions  of executive  nature.  The mere fact that one  member  did  not participate in the selection does not ipso facto render  the selections illegal. Mr. Anil Dev Singh disputed the validity of selection placing reliance on the United Commercial  Bank Ltd. v. Their workmen, [1951] SCR 380. In this case  Central Government  had constituted an Industrial Tribunal  for  the adjudication of industrial disputes in banking companies  in exercise  of  its powers under Section 7 of  the  Industrial disputes  Act,  1947. The tribunal was to consist  of  three members. One of the members did not function on the tribunal for  a period of about three months. By a majority  judgment this  Court held that the two remaining members were  not  a duly constituted tribunal and any proceedings in the absence of the third member without reconstituting the tribunal were without jurisdiction. This Court, construing the  provisions of  Sections 7 and 8 of Industrial disputes Act,  1947  read with Rule 5 of the Industrial Disputes Rules, 1949, came  to the conclusion that when a vacancy occurred it was obligato- ry on the Government to notify its decision as to whether it intended  to fill up the vacancy or not, and if the  Govern- ment  decided  not to fill up the  vacancy,  a  notification under Section 7 of the Act was essential to reconstitute the remaining members of the tribunal. The decision was rendered on the construction of the relevant statutory provisions and keeping  in view the fact that the tribunal was  to  perform quasi-judicial  functions.  The ratio of  this  decision  is inapplicable to the committee constituted by executive order for performing purely administrative functions. Selection of candidates  for admission to medical colleges does  not  in- volve  performance of any judicial or  quasi-judicial  func- tions. Mr. Anil Dev 37 Singh then relied upon A vadh Bihari Sinha v. University  of Bihar, C.A. 1650/67 decided by this Court on 4th of January, 1968. In this case Bihar University Regulations framed under the Bihar State Universities Act, 1960 provided that a Board of moderators must consist of five members of whom two  must

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18  

be  external experts. Two external experts were  invited  to join the Board but they declined. The appointment of members to the Board was to be completed only after they were desig- nated  and  had accepted their  appointment.  Three  members without  the two external experts moderated an  award  which was  set aside by this Court. This was a case  where  inter- preting  the  statutory provisions of the  regulations  this Court  came to the conclusion that the constitution  of  the Board of moderators was not complete without the designation and  acceptance of the appointment by the external  experts. The  ratio cannot be attracted to the facts of  the  present case.  In  the present case competent authority  with  three members  was  constituted  by an executive  action.  In  the absence  of any statutory provision to the contrary, it  was perfectly legitimate for the authority to function with  two members.  Even  otherwise  the written test  and  viva  voce having already taken place, the selection process was almost complete and nothing much was left for the competent author- ity to do. It had only to scrutinize and finalise the selec- tion.  No arguments were addressed and not a single  circum- stance  was pointed out to show any prejudice to any  candi- date  in the scrutiny and finalisation of the  selection  by the  authority. Mr. Altar Ahmed fairly made all the  records available  in the Court. The learned counsel for the  unsuc- cessful  candidates  could not point out  any  prejudice  or injustice to any of them. We have, therefore, no  hesitation in rejecting this contention of the learned counsel.     Regarding the other attack on competent authority it  is argued that under the consent order it was the reconstituted competent authority which was to scrutinize all the cases of the candidates who appeared in the entrance examination  and since  it  was done only by the committee the  selection  is vitiated.  Mr. Altar Ahmed has taken us through the  records and   we  find  that  the  committee  consisting  of   Prof. Shafi-ud-Din,  Dr. Y. Singh and Dr. Abdul  Aziz  scrutinized the  answer sheets of the candidates and recorded a note  to this  effect  on 24th of October, 1988. Thereafter  the  two members of the competent authority approved the said scruti- ny  on 25th of October, 1988. It is, therefore, not  correct to say that the scrutiny was done only by the committee  and not by the competent authority. The purpose of appointing  a committee  under SRO 291 read with 1987 Order was to  assist the  competent authority. The scrutiny in this  case  having been approved 38 by  the  competent  authority, it cannot be  said  that  the competent  authority abdicated its powers to the  committee. We, therefore, do not see any force in this argument of  the learned counsel.     Mr.  Bhim  Singh  also objected to  the  appointment  of committee by the Government. According to him under SRO  291 the  committee  could  only be appointed  by  the  competent authority. Reading SRO 291 with 1987 order it is clear  that the competent authority is to function subject to the orders issued  by the Government from time to time. The  Government was therefore, within its authority to appoint the committee and no fault can be found with the same.     All  the learned counsel appearing for the  unsuccessful candidates have attacked the method and procedure of holding the entrance examination and the viva voce. Mr. Altar  Ahmed with the help of Prof. Satish Raina, who was present in  the Court and also other officials, explained to us the way  the entrance  examination and the viva voce was  conducted.  The entrance  examination prescribed by the competent  authority is  of  an objective type test. Every candidate  taking  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18  

written  examination  is provided with one  copy  of  answer sheet  and one question booklet per subject. Every  question paper  contains 70 questions and each question has one  cor- rect  answer and three distractors printed on  the  question paper  itself. Every answer sheet is a printed  document  in duplicate  and the candidate has to write the answer in  the space provided against the question number. The candidate is required  to put the number of what according to him is  the correct  answer,  on the answer sheet against  the  question number.  Similarly the viva voce test is also  on  objective basis.  The  candidates are supplied with  printed  question cards  in two lots. Lot ’A’ consist of question  cards  per- taining  to general science for determining the aptitude  of the candidates. Lot ’B’ consist of question cards pertaining to the general knowledge to test the general ability of  the candidates.  The experts are provided with necessary  answer booklets  which  carry the answer to a  question  against  a particular serial number of the question card. The candidate is  asked to pick up two questions cards one at a time  from each  lot. Each correct answer is awarded four marks in  the case  of lot ’A’ and 3.5 marks in the case of lot ’B’.  ’The award  is given to the candidate and recorded on  the  award sheet  supplied to the experts. The award is as per  answers given  in  the answer booklet. The proceedings  of  the  day including  the viva voce of each candidate is tape  recorded and  kept on record. The awards of the  written  examination and  viva  voce are sent to CMC India Ltd.,  New  Delhi  for computerised result processing. 39     The  above procedure was demonstrated before us  in  the Court.  It has totally eliminated the element of  discretion and has minimised the scope of favouritism. Mr. Altaf  Ahmed fairly  offered to produce the answer sheets or to play  the tape  recording  in respect of any candidate.  Although  Mr. Bhim  Singh generally argued that there was bugling  in  the entrance  examination  and the viva voce but  he  could  not specifically  point  out any infirmity in the whole  of  the process of selection. Mr. Salman Khurshid also appearing for the unsuccessful candidates has contended that in the  proc- ess  of  selection while bringing objectivity  and  reducing subjectivity  the element of chance has crept in.  We  would prefer  a method of selection which rules out human  discre- tion  and favouritism but may bring in a fraction of  chance in  its  operation. This very method of viva voce  came  for consideration  before  this Court in Kaushal  Kr.  Gupta  v. State  ofJammu  & Kashmir, [1984] 3 SCR 407. The  court  ob- served: "  .....  We must record our appreciation that respondents 1 to 3 have practically set at naught drawbacks and  deficien- cies  in  oral interview as pointed out by this  Court.  The viva voce test conducted must be held to be fair, free  from the  charge  of arbitrariness, reasonable  and  just  ...... Undoubtedly, the expectation of the Court which frowns  upon anything arbitrary or unreasonable hag added to the workload of the Selection Committee. But today when there is rush for admission  to Engineering Colleges like the  Ceaser’s  wife, the  selection must be objective and beyond  reproach.  That has been scientifically achieved in this case. We hope  that bodies  charged  with  the difficult  task  of  ascertaining merits  for admission will take cue from what has been  done by respondents 1 to 3 and the lead provided by them in  this field  would  restore  faith  of  young  aspirants  in   the system  .....  "     The  objective  test for entrance examination  and  viva voce  for admission to the MBBS course in the  medical  col-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18  

leges  of Jammu & Kashmir for the session 1984-85 was  again approved  by this Court in Atul Khullar v. State of J  &  K, [1986]  Supp.  SCC 225. We see no force in the  argument  of learned counsel and uphold the selection.     Mr.  Bhim  Singh invited our attention to  the  judgment rendered by one of the learned judges in Farooq Bacha’s case to  show that there were observations adversely  criticising the conduct of Prof. Satish Raina. Mr. Bhim Singh says  that since the conduct of a person was 40 adversely  commented upon by one of the learned  judges,  it was  unfair to entrust him with the functions  of  competent authority. The action of the State ’Government, according to him, is not bona fide and as such the selection is vitiated. It is correct that there are some adverse observations,  but the same have not been endorsed by the learned Chief Justice who delivered the judgment on reference. In any case all the parties including the unsuccessful candidates agreed to  the consent order which was passed by the High Court on 17th  of October, 1988. These candidates accepted the appointment  of Prof. Satish Raina in the reconstituted competent authority. It was to their knowledge that entrance examination and viva voce,  which was complete before the consent order, was  got conducted by Prof. Satish Raina. No objection was raised  to the  process of selection already conducted by Prof.  Satish Raina, rather his appointment on the reconstituted competent authority to complete the remaining process of selection was accepted by the parties in the consent order.     Mr.  B.  Sen learned counsel appearing in  SLP  (C)  No. 1299/89 contends that 50% seats are to be filled from gener- al  category and remaining 50% from reserved categories.  He urged  that when a reserved candidates secures merit in  the first  50% seats then he is treated as a general  candidates and  the seat in the reserved category which he should  have occupied  is  given to some other reserved  candidates  with lower  points. According to him the reserved  candidate  who secures merit in both the general category and the  reserved category must consume the seat in the reserved category  and not the general category. The reservations have been provid- ed under SRO 291 read with SRO 272 dated 3rd of July,  1982. Reading  Paras  II and III of SRO 272 together it  is  clear that the 50% of the general category seats have to be filled in the first instance and remaining seats are to be  offered to  the reserved category thereafter. Counting  the  reserve candidate, who fall within the first 50 positions, as gener- al candidate, is thus permissible under SRO 272. The  execu- tive orders providing reservations have not been challenged. There  is no material on the record to show  that  procedure followed to fill the reserve/general vacancies has  resulted in  excessive  representation to the reserve  category.  We, therefore, see no merit in the contention.     Mr.  B. Sen and Mr. Bhim Singh also assailed the  selec- tions on the ground that SRO 380 dated 7th of July, 1983  as amended  by notification dated 9th May, 1986  provides  that the  candidates who obtain such minimum qualifying marks  in the  written test as may be fixed shall only be  called  for viva voce. It is argued that since minimum 41 qualifying  marks have not been fixed the selection is  bad. We  do  not agree with the learned  counsel.  The  competent authority  called  candidates for viva voce four  times  the number of seats available for admission. It was open to  the authority to either fix the minimum percentage of marks  for providing   eligibility  or  to  indicate   the   qualifying cut-off-line by calling candidates in relation to the number

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18  

of vacancies. In all 2921 candidates qualified in the  writ- ten test out of which 710 candidates, four times the  number of available seats, were called for viva voce. The  cut-off- line at 710 indicates the minimum qualifying marks. There is thus no merit in the contention.     CMP 4252A/1989 in SLP(C) No. 92/1989 by one Iqbal  Singh who  was a candidate for one of the seats reserved  for  the sportsment.  Mr. Anil Dev Singh appearing for him  contended that  he  was recommended at number one in the  category  of sportsmen  but  in  spite of that he  was  not  selected.  A sportsmen has been defined under SRO 272 to mean one who has shown   outstanding   ability  in  sports   and   games   at State/National  level. All those candidates who  fulfil  the criteria  fall within the category of sportsmen,  but  their selection  depends on the merit earned by the candidates  in the  entrance examination and the viva voce. It is not  dis- puted that all the candidates selected in the sports catego- ry  have  higher merit than Iqbal Singh. The  contention  is thus rejected.     Mr. E.C. Aggarwala appearing for unsuccessful  candidate Shaheen  Aara contended that the candidate got 73.83  points and  was  bracketed  with another girl who  also  got  73.83 points.  He says in the case of a tie, both  the  candidates should  be selected. This contention’ cannot be accepted  in view  of the procedure provided by the  competent  authority for this eventuality. In a case of the inter-se merit of the candidates is to be determined in order of preference i.e..: (i) Candidate obtaining higher marks in Biology,    (ii)  Candidate  obtaining higher marks  in  Biology  and Chemistry in aggregate, (iii) candidate older in age to be preferred.     By  adopting above criteria the other girl  was  rightly preferred to Shaheen Aara. Mr. E.C. Aggarwala raised another argument  that under SRO 291 50% of the available seats  are to be filled from general category. He urged that there  was 191 available seats and as such 96 42 seats  should  have gone to general category and 95  to  the reserved category. According to him only 93 seats have  been given  to the general category and if three more  seats  are added  Shaheen Aara comes within the zone of  selection.  On the  other  hand  Mr. Altar Ahmed urged that 50%  is  to  be counted of the local intake. According to him 175 seats  for MBBS and 10 seats for BDS are for the local candidates which he  meant as local-intake. According to him total  available seats  for local-intake being 185 the general  category  has been  rightly given 93 seats. He urged that  six  additional seats have been provided for Non Resident Defence Personnel, Para Military Defence Personnel and Non Residents under  the Government  Orders. According to him these six seats  cannot be  added to the available seats which would remain 185.  We see  no illegality in taking 185 as the number of  available seats for determining 50% for the general category.     Mr.  Prithviraj  in  SLP (C) No.  305/89  contends  that petitioner Jyoti Kumari is at number one in the waiting list of  Scheduled Caste candidate. There are 15 seats  for  this category  as  a result of 8% reservations. Since  50%  seats have  to  go to female candidates out of these 15  seats,  7 have  been  given to men and 7 to women. The 15th  seat  has been  given  to a male Schedule Caste candidate  as  he  was having  better merit than Jyoti Kumari. Mr. Prithviraj  con- tends  that  8th seat should have been given to  the  female candidate.  There being one seat between a male  and  female candidate  it has been rightly given to the  male  candidate with better merit.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18  

   In  view of the above discussion Civil  Appeals  arising out of SLP(C) Nos. 16112-57/88 and SLP(C) No. 92/89 filed by the  State of Jammu & Kashmir and the successful  candidates are allowed, the judgment of the Jammu & Kashmir High  Court is set aside and the writ petitions filed by the  unsuccess- ful  candidates  before the Jammu & Kashmir High  Court  are dismissed.  Civil Appeals arising out of SLP(C) No.  287  of 1989,  SLP(C)  No. 305 of 1989 and SLP(C) No. 1299  of  1989 filed  by  the unsuccessful candidates  are  dismissed.  CMP 4252A/89  is also dismissed. There shall be no order  as  to costs. R.S.S.                                             Petitions dismissed. 43