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PETITIONER: SHRI CHANDER CHINAR BADA AKHARA UDASIN SOCIETY & ORS.

       Vs.

RESPONDENT: THE STATE OF J & K AND ORS. ETC.

DATE OF JUDGMENT:       11/09/1996

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) AHMADI A.M. (CJ) KIRPAL B.N. (J)

CITATION:  JT 1996 (8)    89

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T      N.P.SINGH,J      Leave granted.      Appellant No.1  Shri Chander  Chinar Bada Akhara Udasin Society (hereinafter  referred  to  as  the  Society)  is  a society registered under the J & K Society Registration Act, the primary  object being  to promote  medical education  by establishing medical  colleges, hospitals  and child welfare centres. A  proposal was  submitted to  the State Government for setting  up a  medical college and a private hospital in Jammu, in  the year  1988˜ The State Government allotted 356 kanals  of   land  for  the  proposed  medical  college  and charitable hospital.  A further  allotment of  250 kanals of land is  said to have been made by the State Government. The State Government  recommended to  the Jammu  University  for grant of  affiliation to  the proposed medical college to be set up  by the  society. The State Government also requested the Medical  Council of  India to grant approval/recognition to the  said medical  college. Inspection  was made  by  the representatives of  the Medical  Council of India in respect of infrastructure  including the teaching facilities. In due course temporary recognition of the institution was granted. It is  said that the Society approached the State Government to issue necessary guidelines and to frame rules to regulate the admissions  to the  medical college  established by  the Society. The  Society in its communication undertook to make admissions in  accordance with the directions of the Supreme Court of  India in the case of J.P.Unnikrishnan vs. State of A.P. & Ors., (1993) 1 SCC 645 and other directions issued by this Court. The last such communication was addressed by the Society to  the State  Government on  17.10.1995 saying that although it  had got  recognition  from  the  Government  of India, but  no rules/regulations  were being  framed by  the State Government for admissions to the said medical college.      The State  Government had  issued an  advertisement  on

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6.7.1995 inviting  applications from eligible candidates for appearing at  the entrance  test for  admission to  the  two governments  medical   colleges.  But   while  issuing  such advertisement  the   State   Government   did   not   invite applications for  the admission  into the medical college of the  Society.   In  the  brochure  published  by  the  State Government for  information to  the candidates,  who may  be willing to  seek  admission,  nothing  was  said  about  the medical college  in question. which was necessary in view of the judgments  and Orders  of this  Court for filling up the ’merit seats’ and the ’payment seats’      It is  further the case of the Society that when people of the  State of  J &  K learnt about the medical college of the Society,  they approached  the  management  for  seeking admission and  some applications  were also submitted to the management.  However,   no  action   was   taken   on   such applications, as no instructions had been received from the State Government.      Some students  seeking admission in the medical college in question,, filed a writ petition before the High Court of Jammu &  Kashmir making a grievance in respect of failure on the  part   cf  the  State  Government  to  frame  necessary rules/guidelines  to   regulate  admission  to  the  medical college of  the Society  which  had  deprived  them  of  the opportunitv of  seeking admission  against the ’merit seats’ or the  ’payment seats.  The appellant-society was impleaded as a respondent to the said writ petition. Counter affidavit was  filed  on  their  behalf.  All  necessary  records  and information were  placed before  the High  Court. lnspite of the  several   opportunities  being   given  to   the  state government, no  affidavit on  their behalf  was filed. By an order dated 27.11.1995, the learned single Judge constituted a Committee consisting of:      "(a)   Mr.Justice   J.N.Bhat,(Rtd.)      Judge   of   J&K   High   Court   :      Chairman.      (b) Mr.  A.M.Watali, former  member      J&K Public Serv ice Commission:      (C) Dr.Krishan  lal  Gupta,  Former      Director, Health  Services, J  &  K      state:      (d) Prof.Vidya nath Gupta, formerly      Prof. and Head, Department of Hindi      University of Jammu:      Member."      A  direction   was  given  to  the  said  Committee  to immediatley proceed with the selection process for admission of students  in the Ist year MBBS course of the said medical college.  An   option  was  given  to  invite  or  call  for applications  by   publication  through   recognised   modes including issuance  of an  advertisement  in  at  least  one leading newspaper having wide circulation. In the order, the learned Judge  observed that  the  selection  Committee  may conduct oral  interviews of the candidates for short-listing the applicants  on basis  of their inter se merit. The first meeting of the aforesaid Committee is said to have been held on 29.11.1995.  An advertisement  was  issued  on  4.12.1995 inviting applications from eligible candidates in respect of the following four categories:-      "(a) 50% merit seats from permanent      resident of the State of J&K;      (b)   20%    payment   seats   from      permanent resident of  the State of      J&K;      (c)   15%    payment   seats   from

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    candidates  outside  the  State  of      J&K; and      (d) 15% from NRI’s and foreigners."      The advertisement  was published  in the Indian Express in its  issue dated  4.12.1995˜ In  the said  advertisement, 11.12.1995 was  fixed as  the last  date for  receipt of the applications saying  that the  interviews of  the candidates shall be  held between  15.12.1995 and 17.12.1995. It is the case of  the Society that after the interviews were so held, a merit  list was  prepared on  basis of  the percentage  of marks secured  by the  applicants at  the  Higher  Secondary School Examiantion  or equivalent examinations and the marks secured at  the  interview.  The  report  of  the  Selection Committee was  forwarded on  19.12.1995, which was placed on the notice  board on 20.12.1995. Candidates so selected were admitted between 20.12.1995 to 25.12 1995. The teaching  commmenced from 26 12.1995.      A  Letters   Patent  Appeal  against  the  order  dated 27.11.1995. aforesaid  of the learned single Judge, had been filed on  behalf of  the State  Government, which was listed before the Division Bench on 27.12.1995. On the basis of the caveat filed  on behalf  of the  Society, the  parties  were heard on  the aforesaid date. After hearing the parties, the appeal filed on behalf of the State Government, was admitted and the  operation of  the order of the learned single Judge was stayed.  Ultimately, the  Appeal filed  on behalf of the State and the appeals filed on behalf of others were allowed on 22.3.1996.  The order of the learned single Judge was set aside. The  present appeals have been filed against the said judgment of the Division Bench.      From the  judgement of  the Division  Bench, it.  shall appear that  after taking  into consideration  the different aspects of the controversy as well as the predicament of the students who  claimed to  have been  admitted in the medical college aforesaid, the following directions were given:-      "To  conclude,   considering  these      several  aspects,   we   make   the      following orders:      (1) These  appeals are allowed. The      order of  the learned  Single Judge      passed  on  OWP  No.379/1995  dated      November 27, 1995 is set aside.      (2) We  issue a writ of Mandamus to      the  State   Govt.   to   issue   a      Notification      calling       for      application   from   the   eligible      candidates in  the prescribed  form      for appearing  in the  common  viva      voce  entrance  examination.  There      shall be no common entrance written      . examination. Notification calling      for application  shall be published      in  one   local  Daily   Varnacular      language and  in one  daily  widely      circualted    English     newspaper      petioners,      the      contesting      respondents, the  appellants of the      LAPs who  have already applied need      not apply  once again  except those      who have not applied.      (3) The last date for receiving the      applications in the prescribed form      shall   be    5th   April,    1996.      Applications  received   after  the      date fixed  above either by post or

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    by hand would not be entertained.      (4) The  Roll Nos.  to the eligible      candidates shall be supplied by the      8th  April,   1996.  The  date  for      holding the  common  entrance  viva      voce examination  is fixed  as 10th      April, 1996.      (5) The  Competent Authority  shall      make. selection  and  announce  the      results on  or before  17th  April,      1996.   The   selection   list   so      prepared shall  be got published in      atleast two  leading local  dailies      of Srinagar  and Jammu and it shall      also be  displayed at the office of      Competent    Authority,    Entrance      Examination in Jammu and Srinagar.      (6) Out  of 100  marks awarded  for      selection of  the  candidates,  75%      shall be for academic qualification      and  25%   shall  be   for   common      Entrance Viva Voce Examination.      (7) The  number of  100 seats shall      be   filled    up   by    selecting      candidates from the order of merit.      (8) At  least 50%  of the seats out      of the 100 seats shall be filled up      by the  nominees of  the  Govt.  or      University  as  the  case  may  be,      hereinafter  referred  to  as  free      seats .  These  students  shall  be      selected  on  the  basis  of  merit      determined on  the basis  of  merit      list by  such criteria  as  may  be      determined   by    the    Competent      Authority or  appropriate Authority      as the  case may  be. The remaining      50% of  the seats  (payment  seats)      shall  be   filled  up   by   those      candidates who  are prepared to pay      the fee prescribed therefor and who      have complied with the instructions      regarding deposit and furnishing of      cash  security/Bank  guarantee  for      the  balance  of  the  amount.  The      allotment   of   students   against      payment seats shall also be done on      the   basis    of   inter   semerit      determined on  the same basis as in      the case of free seats.      (9) In so far as the reservation of      the  seats   for  persons  claiming      constitutionally        permissible      reserved, the  SRO  issued  by  the      State of  J&K in  relation  to  the      reservation  of   seats  shall   be      followed.      (10) In  so far  as the fixation of      the scale  of fee  payable by these      students,  the  State  Govt.  shall      constitute  a  committee  within  a      period  of   ten  days   and   that      committee shall  fix the  scale  of      fee payable   by  the  students  in      accordance  with   the   guidelines

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    contained in  the  scheme  of  Unni      Krishnan J.P. (AIR 1993 SC 2173)      It is  apparent from the order aforesaid that a writ of mandamus was  issued  to  the  State  Government  to  invite applications from eligible candidates in prescribed form for appearing in  the common  viva  voce  entrance  examination. However, there  is  a  specific  direction  that  no  common entrance written  examination shall be held. 5th April, 1996 was as  the last  date for receiving the applications in the prescribed form.  Thereafter a  time schedule was prescribed in  respect   of  common  viva  voce  entrance  examination, selection and  announcement of  the result.  A direction was also given  that out  of 100  marks awarded for selection of the candidates.  75% shall be for academic qualification and 25% shall be for common entrance viva voce examination.      According  to   the  appellant-society,  there  was  no justification on the part of the Division Bench to interfere with the directions given by the learned single Judge, which were just  and proper.  It was  pointed out  that under  the predicament  under   which  the  appellant-society  and  the applicants had  been placed  because of  the inaction on the part of  the State  Government, the learned single Judge had no option but to constitute a Committee of persons mentioned above for selecting the applicants for admission in order to save them  from loosing an academic session, for no fault of theirs.      It is  true that  when the  Society requested the State Government to  frame necessary  rules/guidelines to regulate the admissions  in the  medical college  of the Society, the State Government should have taken appropriate and immediate steps and  there was  no sense in shelving the said issue by ignoring it  outright. The  learned counsel, who appeared on behalf of  the State,  could not  give any explanation as to why the  necessary guidelines were not issued to the Society in  respect   of  the  admissions  in  the  medical  college aforesaid. But  the fact  remains that  the  learned  Single Judge on  the writ  petition filed on behalf of the students adopted a  procedure and fixed a time schedule in respect of admission of  the applicants,  which are not consistent with the orders  and directions issued by this Court in different cases, indicating  the procedure  for admission  in  private medical colleges. There is no dispute that the advertisement inviting applications from eligible candidates was issued on 4.12.1995 and  11.12.1995 was  fixed as  the last  date  for receipt of  the such  applications i.e. within a week, which according to us, was perse an arbitrary time limit fixed for receipt of  the applications. It is said that the interviews were  held   Between  15.12.1995   and  17.12.1995  and  the selection list  was forwarded  on 19.12.1995.  The  selected candidates are said to have been admitted between 20.12.1995 and 26.12.1995  and classes are said to have commenced since 26.12.1995 itself.  Admittedly, the Division Bench passed an interim order  staying the  operation of the judgment of the single Judge  only  the  next  day  i.e.  27˜12.95  In  this background, it  is difficult  to accept  the claim  made  on behalf of  the Society as well as applicants who are said to have been  admitted in  the said medical college, that their studies commenced  since 26.12.1995 and as such on equitable grounds they should be allowed to pursue their studies.      It is  unfortunate that due to the indifferent attitude of the  State Government  and haste  shown by the appellant- society, the  so-called selected candidates, who are said to have been  admitted, are virtually on the roads. But only on equitable grounds,  a procedure  which is  not sanctioned by law cannot be approved only to mitigate the hardship of such

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candidates who have sought admissions in the medical college aforesaid. But at the same time many of the directions given by the  Division Bench  also  cannot  be  approved.  It  has directed that selection be made on basis of common viva voce entrance  examination   and  no   common  entrance   written examination be  held. According  to  the  direction  of  the Division Bench,  75% marks  have been  allotted for academic qualification and  25% marks for the viva voce exam-ination. It need  not be  pointed out  that the  percentage of  marks secured  by  different  applicants  at  different  types  of examinations at the higher secondary stage cannot be treated as uniform.  Some of  such examinations are conducted at the state level,  others at  the national  level  including  the Indian  School   Certificate  examination.   The  percentage secured  at   different  examinations   are  bound  to  vary according to  the standard applied by such examining bodies, which is a well known. As such a common entrance examination has to  be held. The counsel appearing for the parties could not justify  the  awarding  of  25%  markes  for  viva  voce examination in  view of  the several judgments of this Court in connection  with admission  in educational  institutions; one such  judgment being from the State of J&K itself in the case of Ajay Hasia etc vs. Khalid Mujib Sehravadi and others etc., AIR 1981 SC 487 = (1981) 1 SCC 722.      The learned  counsel appearing  on behalf  of the State informed the  Court that  pursuant to the direction given by the Division Bench, an advertisement was issued on 27.3.1996 by  the   State  Government,  notifying  the  conditions  of eligibility for  admission in the said medical college. From the said advertisement it appears that one of the conditions is that  the candidate  must be permanent resident of J & K. There was  no such  direction given  by the  Division Bench. Apart from  that any  such condition  is not consistent with the different judgments and orders of this Court. Mr. Verma, learned senior  counsel, immediately  offered to rectify the same and to abide by any direction given by this Court.      Taking   all   the   facts   and   circumstances   into consideration, we are of the view that for one reason or the other, now  it is  not possible to complete the admission in the said  medical college  for the session which has already commenced. As  such the only reasonable course shall be that a fresh  advertisement  be  issued  for  the  next  academic session in  accordance with  law in  the light of directions given by  this Court  in the  cases of J.P. Unnikrishnan vs. State of  AP &  Ors. (supra).  T.M.A. Pai  Foundation & Ors. vs. State  of Karnataka,  (1993) 4  SCC 276, Manipal Academy of Higher  Education vs. State of Karnataka & ors. (1994)  2 SCC 201  and in  the case  of T.M.A.Pai  Foundation and ors. vs. State  of Karnataka  and ors.,  (1995) 5  SCC  220.  The advertisement inviting  applications should  be given proper publicity and thereafter the seats should be ear-marked  and allotted  in   terms  of   the  judgments   aforesaid  which prescribe the procedure for admission by the private medical colleges. Seats  shall also  be reserved  for NRI within the percentage fixed  in those  judgments. The  State Government shall  extend  all  cooperation  and  help  so  that  proper selections are  made as per directions of this Court and the appellant-society which  has established the medical college is able  to pursue  its goal  by making  the medical college functional, which shall be in the interest of the State of J & K  itself. The  learned counsel appearing for the State of J&K assured  this Court  that all  necessary steps  shall be taken promptly.      In the  result, the  appeals are  dismissed but at  the same time  in view of the directions given above, it has  to

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be held  that we  are not  approving the directions given by the Division  Bench. Now,  the steps have to be taken by the appellant-society and  the State  Government  in  accordance with the  different  directions  given  by  this  Court  for admission in the private medical colleges. There shall be no orders as to cost.