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PETITIONER: NISHI MAGHU ETC. ETC.

       Vs.

RESPONDENT: STATE OF JAMMU AND KASHMIR AND ORS.

DATE OF JUDGMENT09/05/1980

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. FAZALALI, SYED MURTAZA KAILASAM, P.S.

CITATION:  1980 AIR 1975            1980 SCR  (3)1253  1980 SCC  (4)  95  CITATOR INFO :  RF         1981 SC 487  (5,9)  RF         1981 SC1009  (4,5,7,11)

ACT:      Selection of  candidates  admitted  to  the  Government Medical College,  Jammu-Whether the  notifications issued by the Government  of Jammu  and Kashmir  indicating  different categories under  clause (2)  and earmarking seats arbitrary and unconstitutional-Articles 14 and 15 of the Constitution- Interview method of selection whether a valid test.

HEADNOTE:      The selection  of candidates admitted to the Government Medical College, Jammu are to be made in accordance with the manner and  procedure laid down in the various orders issued by the  Government of  Jammu and  Kashmir from time to time. The earliest  order made  on July 9, 1973 concerns admission to technical institutions which include medical colleges and says that  "the man  power requirements  of various parts of the State have not received uniform and equal treatment with the result  that there has been imbalance in the development of  human   resources  in   these  parts",  and  "since  the admissions  to  technical  institutions  also  lead  to  the development of  human resources", it had, therefore, "become necessary to  provide equal  opportunities to  the permanent resident candidates  of all  parts  of  the  State  and  all sections of  the society".  As, per  this order  50% of  the seats were  earmarked for selection on open competition, 25% of the  seats were  reserved for candidates belonging to the categories specified in clause (2) of the order according to the  percentage  indicated  against  each.  It  was  further provided in  the order  that after  selection, as above, the remaining 25% of the seats "should be filled on the basis of inter se  merit to  ensure rectification of imbalance in the admissions for  various parts of the State, if any, so as to give equitable  and uniform  treatment to  those parts".  In case there was no "visible imbalance" or where no candidates were available  under a  particular  category  mentioned  in clause (2)  above the  seats earmarked under these two heads "shall be  added to  the percentage under [clause] I above". The annexure  to the order contained instructions concerning

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the "identification  of the  persons claiming benefit" under clause  2   of  the   order  and  "the  procedure  connected therewith".   The   instructions   defined   the   different categories mentioned in clause (2):           "Areas adjoining actual line of control-Candidates      permanently  residing  in  any  village  of  the  State      specified in Appendix I to these instructions".           "Bad pockets-Candidates  permanently  residing  in      any village  of the  State specified  in Appendix II to      these instructions".           "Social Castes-Candidates  of the  State belonging      to any of the castes indicated in Appendix III to these      instructions". The  instructions   also  provided   for  the   issue  of  a certificate  by  the  concerned  authority  stating  that  a candidate fell under any of the categories. 1254      On June  27, 1974 another order was issued refixing the percentage of  seats reserved  for the  different categories "with a  view  to  affording  more  accommodation  for  open merit". Open  merit  percentage  was  increased  to  60,  by reducing by 5% the percentage of seats allotted for children of freedom  fighters and by reducing the percentage of seats of 25% earmarked to ensure "rectification of imbalance" from 25% to  20%. 3%  of seats reserved for candidates from areas known  as  bad  pockets  which  included  Ladakh  under  the category "socially  and educationally  backward classes" was reduced to  1%  and  the  resultant  difference  of  2%  was earmarked to  candidates from Ladakh which was excluded from the above  category. By  another order dated April 21, 1976, the  existing   reservation  of  20%  for  meeting  regional imbalance was reduced to 18% and the "resultant 2% vacancies earmarked for candidates possessing, outstanding proficiency in sports".  An order  made on  April 16,  1976 earmarked 10 seats at  the Government  Medical College,  Jammu, for  girl students  "subject  to  enough  girl  students  being  found otherwise suitable".  The order also laid down the procedure to be  followed by  the  selection  committee  in  selecting candidates for  admission to  technical training  course. By this order,  comparative performance of the candidates at an interview to  be conducted  for the purpose by the selection committee was  made the  only basis  of selection. The order added  that  the  marks  obtained  by  a  candidate  in  the qualifying  university  examination  should  be  taken  into consideration only  to determine  the initial eligibility to compete  for   selection.  This  order  was  modified  by  a subsequent order  issued on  April 3,  1978. Instead  of the marks obtained  by a  candidate in the qualifying university examination being  treated as  relevant  only  to  determine eligibility, the  subsequent order  provided: "there will be 100 marks for academic merit which shall be allotted to each candidate in accordance with the percentage of marks secured by him/her  in  the  basic  qualifying  examination  or  its equivalent". This order further provided that 50 marks would be allotted  for interview,  10 marks  for each  of the five factors: physical,  fitness, personality,  aptitude  general knowledge and general intelligence.      By notification  published in  the  Jammu  and  Kashmir Government  Gazette  on  June  21,  1979  applications  were invited  for   admission  to  the  M.B.B.S.  course  in  the aforesaid college.  Only those candidates who had passed the Pre-Medical or  Inter-Science or  First Year T.D.C. (Medical Group) examination from the University of Jammu or any other equivalent examination  and had secured not less than 50 per cent marks  in science  subjects in  aggregate  (theory  and

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practical) were  eligible to  apply for  admission; however, for scheduled  castes, scheduled  tribes Bakarwal and Gujjar candidates and  candidates from  Ladakh  district  and  ’Bad pockets’ the  qualifying marks  was 45  per cent. Candidates who had  been selected  or nominated  by the  Government  of Jammu  and  Kashmir  or  had  been  already  selected  by  a selection committee  constituted by  the Government  for any training course in or outside the State were not eligible to apply or  to appear  for interview  for  admission  to  this college. The  notification added:  "Comparative merit of the candidates  will   be  adjudged  with  respect  to  physical fitness, aptitude personality, general knowledge and general intelligence in  the interview,  for  which  marks  will  be awarded according  to the performance of the candidates". It was further  provided that  the selection  would be  made in accordance with  the manner  and procedure  laid down in the various orders  issued by  the Government from time to time. The total  number of  seats  filled  by  selection  in  this college for the year 1979-80 was 52. The candidates numbered 526, out  of which  473 actually  appeared for interview. In addition 10 1255 seats were filled by candidates nominated by the Government. The nomination  had to  be made only from two sources: wards of non-resident  Defence personnel,  and students from other states.      The petitioners  challenged the selection of candidates admitted to  the Government  Medical College,  Jammu for the academic  year  1979-80  as  bad  and  that  the  categories mentioned  in   the  several   orders   as   arbitrary   and unconstitutional. ^      HELD: 1.  The classification  made for rectification of regional imbalance  is vague and the selections (serial Nos. 43 to  51 to  the List) made under this head are invalid for the following reasons: [1263 C-D,]      (i) The  notification dated  June  21,  1979  by  which applications were  invited  for  admission  to  the  medical college provided  that the  selection of candidates would be made in  accordance with  the manner and procedure laid down in the  various orders issued by the Government from time to time, but  none of  these  orders  contains  an  explanation offered in the supplementary affidavit filed by the State of Jammu &  Kashmir that: "......the State Government has found that for peculiar historical, geographical and topographical reasons  there  prevails  an  imbalance  in  the  matter  of development of  the various  parts of  the State  which  has resulted in  certain areas  being backward  as compared with the rest.  In order  therefore to  rectify  the  distinction which inevitably  would otherwise creep in to the selection, the  State   Government  has   reserved  18%  of  seats  for rectification   of   such   imbalance".   Even   with   this explanation, the  affidavit, does  not identify  the area of imbalance. There was thus no objective standard to guide the selection committee. [1261 E-H, 1262 A]      (ii) Even  in the  supplementary affidavit  it  is  not claimed that  the area of imbalance is only another name for the areas  adjoining the  actual line of control and the had pockets, as  contended on  behalf of the State. What is said in the  affidavit is that the areas of imbalance are similar to the  aforesaid areas  in being equally backward. But this does not  mean that  these categories  are all identical and co-extensive  in   all  respects.   Further  in   spite   of similarity, even  areas adjoining the actual line of control and  the   bad  pockets   have  been   put  under  different

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categories; and [1262 B-]      (iii) The  contention was  that the  classification was justified  on   the  report  of  the  Anand  Committee.  The Selection Committee  was required  to follow  not the  Anand Committee report  but what was provided in the orders passed by  the   Government.  There  is  no  order  containing  any reference  to   the  Anand  Committee  Report.  Neither  the Government adopted  the Anand Committee’s report nor did the Selection Committee  proceeded on  the basis of that report. Though the Anand Committee did not accept "social castes" as a  category   indicative  of   backwardness,  the  Selection Committee has  selected one  candidate under  this  category which clearly  shows that  the Selection  Committee was  not guided by the Anand Committee Report, the selection made was not and could not be on the basis of that report. [1263 A-C]      2. In  Janki Prasad Parimoo and Ors. etc. etc. v. State of Jammu  and Kashmir  and Ors.,  [1973] 3  SCR p.  236, the Supreme Court  did not  approve 4  out  of  23  "low  social castes"  mentioned   in  the   Wazir  Committee  Report  "as educationally  and   economically  extremely  backward",  as having no basis for inclu- 1256 sion in  the List.  In Appendix III, 19 of these castes have been retained  which were not disapproved in Parimoo’s case. Chapter XIII  of the  Wazir Committee  report makes it clear that the  classification is  with reference to the nature of occupations which  the people  belonging  to  this  category pursue. That  being so,  the classification  does not offend Article 14  or Article 15 of the Constitution. The selection of Edwin  Khakkar, a  Christian is  in order  since he falls under one  such category  listed and  since the  category is based on  occupation and  not on  caste as  such. [1263 G-H, 1264 A-B]      3. The  areas adjoining  actual line of control and bad pockets are really backward areas and the residents of these areas are  indisputably socially and educationally backward. Reservations made  for such  candidates from  such  backward classes  cannot   be  said  to  offend  Article  14  of  the Constitution. [1264C-D]      Janaki Prasad Parimoo and Ors. etc. v. State of Jammu & Kashmir and Ors., [1973]3 SCR p. 236; followed.      4. Though  the contention that "interviewing candidates to judge  their suitability  was not a reliable test as many uncertain factors  were likely  to affect  the result of the interview" reflects  a legitimate point of view, but it is a point of  view only  and cannot be taken as the last word on the subject.  However, it is impossible within allotted span of time (4 minutes) to make a fair estimate of a candidate’s suitability on a consideration of the five specified factors which are not capable of easy determination such as physical fitness,  personality,   aptitude,  general   knowledge  and general intelligence.  By merely looking at a candidate, the selection committee  could not  come to  a conclusion  about one’s  physical   fitness.  Therefore,  the  fact  that  the allotment of  marks is  in accordance with a policy decision may not  conclude the  matter in  all circumstances; if that decision is  found to be arbitrary and infringing Article 14 of the Constitution it cannot claim immunity from challenge. [1264 E-H, 1265 G-H, 1266 A]      R. Chitralekha  and anr.  v. State  of Mysore  and Ors. [1964] 6  SCR 368;  A Peeriakaruppan  etc. v. State of Tamil Nadu and  Ors., [1971]  2 SCR  430; distinguished  and  held inapplicable to the facts of the instant case.      5. The  selection under  the category "wards of Medical

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College Staff"  is invalid  as such a category does not find place in any of the orders. [1266 G-H]      6.  Reservation  for  students  from  other  states  on reciprocal basis,  as seen  from Anita  Jain’s case  has not worked in  practice and  she is  entitled to a seat. Nor did the two clauses 17 and 18 of the notification dated June 21, 1979 apply  to Kulbhushan Gupta since he was not selected or nominated  by  the  Government  of  Jammu  and  Kashmir  for admission to  the Engineering College nor was he selected by any selection  committee constituted  by the  Government  of Jammu and Kashmir. [1267 E-H, 1268 G-H]

JUDGMENT:      ORIGINAL  JURISDICTION:  Writ  Petition  Nos.  1488-89, 1556-57, 1571/79  and 29,  201, 222, 249, 260-263, 267, 268- 271, 278, 279, 304, 305, 309, 310 and 326 of 1980.      (Under Article 32 of the Constitution) 1257      Anil Dev  Singh, S.S.  Jauhar and Lalit Kumar Gupta for the Petitioners  in WP  Nos. 1488-89,  1571/79 and 304, 309- 310/80.      Anil Dev  Singh and  S.K. Sabharwal for the Petitioners in WP Nos. 201, 249, 267, 278, 279 and 326/80.      Naunit Lal  for the  Petitioners in WP Nos. 1556-57/79, 29, 222, 260-63, 268-271 and 305/80.      S.N. Kackar for the Respondent in WP Nos. 1488-1489/79.      Y.S. Chitale  and Mukul Mudgal for the Respondent in WP Nos. 1556-1557/79.      Altaf Ahmed  for Respondent Nos. 1-3 in WP 1488 and RR. 1-6 in WP 1489/79 and in all the matters.      ATM Sampath  and P.N.  Ramalingam for  RR. 7  in WP No. 1488/79 and 1551-1557/79.      C.S.S. Rao for RR. 12 in WP No. 1488/79.      S.P. Gupta,  V.K. Pandita,  R. Satish and E.C. Agarwala and Dwarka  Nath Gupta  for the  Intervener in WP Nos. 1556- 1557/79.      A.K. Sen,  V.K. Pandey,  R. Satish,  S.P. Gupta, Dwarka Nath Gupta  and E.C.  Agarwala for the Intervener in WP Nos. 1488-1489/79.      L.M. Singhvi  (Dr.), L.K. Pandey and Mr. Naunit Lal for the Petitioner in WP No. 29/80.      The Judgment, of the Court was delivered by      GUPTA, J.-The  selection of  candidates admitted to the Government Medical  College, Jammu,  for the  academic  year 1979-80 is challenged in these petitions under Article 32 of the Constitution  by some  of the  candidates who  were  not selected. By notification published in the Jammu and Kashmir Government  Gazette  on  June  21,  1979  applications  were invited  for   admission  to  the  M.B.B.S.  course  in  the aforesaid college. Only those candidates who  had passed the Pre-Medical or  Inter-Science or  First Year T.D.C. (Medical Group) examination from the University of Jammu or any other equivalent examination  and had secured not less than 50 per cent marks  in science  subjects in  aggregate  (theory  and practical) were  eligible to  apply for  admission; however, for scheduled  castes, scheduled tribes, Bakarwal and Gujjar candidates and  candidates from  Ladakh  district  and  ’Bad Pockets’ the  qualifying marks  was 45  per cent. Candidates who had  been selected  or nominated  by the  Government  of Jammu  and  Kashmir  or  had  been  already  selected  by  a selection committee  constituted by  the Government  for any training course in or outside the State were not eligible to apply or  to appear  for interview  for  admission  to  this

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college. The notification 1258 added: "Comparative merit of the candidates will be adjudged with respect  to physical  fitness,  aptitude,  personality, general knowledge and general intelligence in the interview, for which marks will be awarded according to the performance of  the  candidates".  It  was  further  provided  that  the selection would  be made  in accordance  with the manner and procedure laid  down in  the various  orders issued  by  the Government from  time to  time. The  total number  of  seats filled by selection in this college for the year 1979-80 was 52. The  candidates numbered  526, out of which 473 actually appeared for  interview. In addition 10 seats were filled by candidates nominated  by the Government. It appears from the supplementary affidavit  filed on  behalf of  the  State  of Jammu and  Kashmir that  the nominations had to be made only from two  sources: wards  of non-resident Defence personnel, and students from other States.      Before we  proceed to consider the grounds on which the selection is  challenged, it  will be  necessary to refer to the contents of the orders issued by the Government of Jammu and Kashmir  to regulate  the selection.  The earliest order which is  relevant in this context was made on July 9, 1973. This concerns  admission  to  technical  institutions  which include medical  colleges. The  order starts  by saying that "the man  power requirements  of various  parts of the State have not  received uniform  and  equal  treatment  with  the result that  there has  been imbalance in the development of human resources  in these  parts", and "since the admissions to technical  institutions also  lead to  the development of human resources",  it had  therefore  "become  necessary  to provide  equal   opportunities  to  the  permanent  resident candidates of  all parts  of the  State and  all sections of society". The  order then  lays down the following rules for admission  until  further  orders,  it  is  said,  with  the aforesaid object in view:           (1)  50  per   cent  of   the  seats   "should  be                straightaway earmarked  for being filled upon                the basis  of open  merit in  accordance with                the criteria  to be  adopted by the concerned                selection  committee   constituted   by   the                Government in this behalf".           (2)  Of  the  remaining  seats,  25  per  cent  is                reserved for  candidates  falling  under  the                categories  specified  below  to  the  extent                indicated against  each, to  be filled on the                basis of merit in each category:                (a)  Scheduled castes                      8%                (b)  Children of freedom fighters          7%                (c)  Children of permanent resident                     Defence personnel                     3% 1259                (d)  Candidates belonging to the                     following socially and educationally                     backward classes as recommended by                     the Backward Classes Committee;                     (i)  Areas   adjoining    actual    line                          of control                       3%                     (ii) Areas known as bad pockets                          including Ladakh.                3%                    (iii) Social castes                    1% It is  further provided in the order that after selection as indicated in  clauses (1)  and (2)  above had been made, the remaining 25  per cent of the seats "should be filled on the basis of inter-se merit to ensure rectification of imbalance

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in the admissions for various parts of the State, if any, so as to  give equitable and uniform treatment to those parts". It is  added that in case there is no "visible imbalance" or where  no   candidates  are  available  under  a  particular category mentioned  in clause  2 above  the seats  earmarked under these  two heads  "shall be  added to  the  percentage under  1   above".  The  selection  committee  while  making selections is  required by  the order to indicate separately the category  under which  a candidate  falls. There  is  an annexure to the order containing instructions concerning the "identifications of  the  persons  claiming  benefit"  under clause  2   of  the   order  and  the  "procedure  connected therewith". The instructions define the different categories mentioned in  clause (2). For the present purpose it will be necessary to  refer to  the definitions  of "Areas adjoining actual line of control", "Bad pockets", and "Social castes".           "Areas adjoining actual line of control-Candidates      permanently  residing  in  any  village  of  the  State      specified in Appendix I to these instructions."           "Bad pockets-candidates  permanently  residing  in      any village  of the  State specified  in Appendix II to      these instructions."           "Social castes-candidates  of the  State belonging      to any of the castes indicated in Appendix III to these      instructions." The instructions also provide for the issue of a certificate by the  concerned authority  stating that  a candidate falls under any of the categories. 1260      On June  27, 1974 another order was issued refixing the percentage of  seats reserved  for the  different categories "with a  view  to  affording  more  accommodation  for  open merit". The following changes were made to the earlier order:           (1)  Instead of  50 per  cent, 60  per cent of the                seats is  now earmarked  for admission on the                basis of "open merit".           (2)  Instead of  25  per  cent,  20  per  cent  is                earmarked for  admission under the categories                mentioned in clause 2 of the order dated July                9, 1973. The percentage of seats allotted for                children of  freedom fighters is reduced from                7 per  cent to 2 per cent. Under the category                "socially and educationally backward classes"                the earlier  order had reserved 3 per cent of                the seats  for candidates  belonging to areas                known as  bad pockets  including  Ladakh,  by                this  order  Ladakh  is  excluded  from  that                category reducing  the  percentage  of  seats                from 3  per cent to 1 per cent and a separate                category has  been made  for candidates  from                the Ladakh  district allotting  2 per cent of                the seats to them.           (3)  Whereas in  the earlier  order 25 per cent of                the   seats    was   earmarked    to   ensure                rectification of  imbalance, here  the figure                is reduced to 20 per cent.      About two  years later, on April 21, 1976 another order was issued  reducing the existing reservation of 20 per cent for meeting  regional imbalance to 18 per cent and allotting "the resultant  2%  vacancies"  for  candidates  "possessing outstanding proficiency in sports".      It is  necessary to  refer to two more orders. An order made on  April 16,  1976  provides  that  10  seats  at  the Government Medical  College, Jammu,  shall be  earmarked for

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girl students  "subject to  enough girl students being found otherwise suitable".  The order also lays down the procedure to be  followed by  the  selection  committee  in  selecting candidates for  admission to  technical training courses. By this order,  comparative performance of the candidates at an interview to  be conducted  for the purpose by the selection committee is  made the  only basis  of selection.  The order adds  that   the  marks  obtained  by  a  candidate  in  the qualifying  university   examination  shall  be  taken  into consideration only  to determine  the initial eligibility to compete for selection. This order was modified by a 1261 subsequent order  issued on  April 3,  1978. Instead  of the marks obtained  by a  candidate in the qualifying university examination being  treated as  relevant  only  to  determine eligibility, the  subsequent order  provides: "there will be 100 marks for academic merit which shall be allotted to each candidate in accordance with the percentage of marks secured by him/her  in  the  basic  qualifying  examination  or  its equivalent". This  order further provides that 50 marks will be allotted  for interview,  10 marks  for each  of the five factors; physical  fitness, personality,  aptitude,  general knowledge and general intelligence.      Some of  the categories  mentioned in these orders have been challenged  as arbitrary  and unconstitutional.  We may begin with  the classification  made for  ’rectification  or regional imbalance’  for which  18 per  cent of the seats is reserved. The  criticism is  that the  order  creating  this category does  not identify  the  areas  which  suffer  from imbalance  nor   does  it  supply  any  guidelines  for  the selection committee. It appears that the selection committee has admitted 9 candidates under this head whose names appear at serial  Nos. 43  to 51 of the list of selected candidates annexed to  the supplementary  affidavit filed  on behalf of the first  respondent,  State  of  Jammu  and  Kashmir.  How exactly the  selection committee  understood  what  regional imbalance was  and on what basis they accepted certain areas of the  State as  suffering from imbalance is not known. The supplementary affidavit  seeks to  explain the  category  as follows:  "....the  State  Government  has  found  that  for peculiar historical,  geographical and topographical reasons there prevails  an imbalance in the matter of development of the various parts of the State which has resulted in certain areas being  backward as  compared with  the rest.  In order therefore to  rectify the  distortion which inevitably would otherwise creep into the selection, the State Government has reserved 18%  of seats for rectification of such imbalance". The affidavit  refers to the disadvantages suffered by areas which adjoin  the actual line of control and the bad pockets and states:  "likewise there  are other  areas in  the State which have  received lesser  attention in  the past  in  the matter of economic development. These areas, inter alia, are either inaccessible  on account  of  difficult  geographical terrain    or     suffer     from     difficult     climatic condition....Naturally therefore  the human  resources  from those areas  have also  not developed".  It may  be recalled that  the   notification  dated   June  21,  1979  by  which applications were  invited  for  admission  to  the  medical college provided  that the  selection of candidates would be made in  accordance with  the manner and procedure laid down in the  various orders issued by the Government from time to time, but none 1262 of these  orders contains  an explanation  as  the  one  now offered in  the  supplementary  affidavit.  Even  with  this

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explanation the  affidavit does  not identify  the areas  of imbalance. There was thus no objective standard to guide the selection committee.  Mr. Kacker  appearing for the State of Jammu and  Kashmir sought to argue that by area of imbalance what was  meant was really the same thing as areas adjoining actual line  of control  and bad  pockets. But  in  all  the orders issued  by the  Government from time to time the area of imbalance  has been  treated as a distinct category. Even in the  supplementary affidavit  it is  not claimed that the area of  imbalance  is  only  another  name  for  the  areas adjoining the  actual line  of control  and the bad pockets, what is  said is  that these  are similar  in being  equally backward. But  this does  not mean that these categories are all identical  and co-extensive  in all respects. It will be noticed  that,  in  spite  of  the  similarity,  even  areas adjoining the  actual line  of control  and the  bad pockets have been put under different categories.      Mr. Kacker  also urged that as the areas suffering from imbalance  were  backward  areas,  constituting  a  separate category for  candidates coming from such backward areas was in accordance  with the  report of a committee headed by Mr. Justice Anand  of Jammu  and Kashmir  High Court.  The Anand Committee was  appointed on  August 24,  1976 to examine and remove defects  in the  Jammu and   Kashmir Scheduled Castes and Backward Classes (Reservation) Rules, 1970 and the Jammu and  Kashmir   Scheduled   Castes   and   Backward   Classes (Reservation of  Appointment by Promotion) Rules 1970. These rules were  framed on  the basis of the recommendations of a committee, called  the Wazir  Committee, set  up in 1969 for drawing up  a list  of backward  classes in  the State.  Mr. Justice J.N.  Wazir, a  former Chief  Justice of  Jammu  and Kashmir High  Court, was the Chairman of this Committee. The Wazir  Committee  submitted  its  report  in  November  1969 recommending several classes of citizens to be classified as backward classes.  The validity  of these  Rules came up for scrutiny before  this Court  in  Janki  Prasad  Parimoo  and others  etc.   etc.  v.  State  of  Jammu  and  Kashmir  and others.(1) In  Parimoo’s case  certain defects  in the  1970 Rules  were   pointed  out   and  the  Anand  Committee  was constituted, as  stated already,  "with a  view  to  examine removal of  defects" in  the 1970 Rules. The Anand Committee submitted its  report in September 1977. Mr. Kacker drew our attention to  the fact  that the  report was  debated on the floor of  both houses  of the  Jammu and Kashmir legislature which resolved as 1263 follows: "The report need to be adopted by the Government as quickly as  possible and  rules made  so that  the  backward classes could  derive benefits quickly". It is not necessary to examine whether the Anand Committee report identifies the areas of  imbalance  in  the  State  because  the  selection committee was  required to  follow not  the Anand  Committee report but  what was  provided in  the orders  passed by the Government. There  is no  order containing  any reference to the Anand  Committee report.  There is  also nothing to show that the  Government had  adopted the  report  of  that  the selection committee  proceeded on  the basis of that report. It appears  from page  59 of the Anand Committee report that the Committee  did not  accept "social castes" as a category indicative of  backwardness, but the selection committee has selected one  candidate under  this category  which  plainly shows that  the selection  committee was  not guided  by the Anand Committee  report. There  can be  no  doubt  that  the selections made  were not  and could  not be on the basis of that  report.   It  must   therefore  be   held   that   the

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classification made  for rectification of regional imbalance without identifying  the areas  suffering from  imbalance is vague  and   the  selections   made  under   this  head  are accordingly invalid.      In support  of this  contention that  area of imbalance was only  another name   for  bad pockets or areas adjoining actual line  of control,  Mr.  Kacker  claimed  that  the  9 candidates selected  for ’rectification  of  imbalance’  all came from  either bad pockets or from areas adjoining actual line of control. The claim was questioned by the petitioners who sought  to disprove  it by  reference to the material on record. We  do not  consider it  necessary  to  examine  the individual  cases  here.  It  may  be  that  some  of  these candidates really  came from  areas adjoining actual line of control or  bad pockets,  yet they  cannot  be  accommodated unless the  percentage  of  seats  reserved  for  these  two categories was raised.      Another category  under challenge  is "social  castes". Included in  this  category  are  candidates  of  the  State belonging to  any of the castes indicated in appendix III to the instructions  forming part  of the  order dated  July 9, 1973 to  which reference  has already  been made.  The Wazir Committee in their report mentioned 23 low social castes "as educationally and  economically extremely backward" but 4 of them have  been held  by this  Court in  Parimoo’s  case  as having no  basis for  inclusion in the list. In appendix III 19 of  these  castes  have  been  retained  which  were  not disapproved in  Parimoo’s case.  Chapter XIII  of the  Wazir Committee report  makes it  clear that the classification is with reference to the nature of occupations which the people belong- 1264 ing to  this category  pursue. That  being  so  we  find  no substance in  the challenge  that the classification offends Article 14  or Article  15 of  the Constitution.  Under this category only  one candidate  has been  selected whose name, Edwin Khokkar,  appears at  serial No.  33 in  the  list  of selected candidates  annexed to  the supplementary affidavit filed on  behalf of  the State  of  Jammu  and  Kashmir.  An objection was  raised against  his selection that he being a Christian, as his name shows, could not belong to any of the castes mentioned  in appendix  III. But  as the  category is based on  occupation and not on caste as such, the objection must be overruled.      The classifications  based on  areas  adjoining  actual line of  control and  bad pockets  are  also  challenged  as violative of  Article 14  of  the  Constitution.  These  are really backward  areas and  the residents of these areas are indisputably   socially    and    educationally    backward. Reservations made  for candidates from such backward classes cannot be  said to  offend Article  14. In fact in Parimoo’s case the reservation made for residents of bad pockets which were identified  in the  report of  the Wazir Committee, was accepted as  valid. We  therefore hold that the challenge to these two categories is not justified.      Apart from  the challenge  to some  of  the  categories mentioned  in   the  Government   orders,  the  validity  of interview as  a test for selection has also been questioned, not only  in principle  but also  in regard to the manner in which it  was conducted.  It was contended that interviewing candidates to  judge their  suitability was  not a  reliable test as  many uncertain  factors were  likely to  affect the result of the interview. The criticism reflects a legitimate point of  view but  it is a point of view only and cannot be taken as the last word on the subject. In this connection we

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may  refer   to  the   observations  of  this  Court  in  R. Chitralekha and  another v.  State of Mysore and others :(1) "In the  field of  education there  are divergent  views  as regard the  mode of  testing the  capacity  and  calibre  of students in  the matter  of admissions to colleges. Orthodox educationists stand  by the  marks obtained  by a student in the annual  examination. The modern trend of opinion insists upon other  additional tests, such as interview, performance in   extra-curricular    activities,    personality    test, psychiatric test  etc. Obviously we are not in a position to judge which  method is  preferable  or  which  test  is  the correct one".  In A.  Periakaruppan, etc.  v. State of Tamil Nadu and others(2) this Court said: "In most cases the first impression need  not necessarily be the best impression. But under the 1265 existing conditions  in this country we are unable to accede to the  contention of  the petitioners  that the  system  of interview as  in vogue in this country is so defective as to make it useless".      In almost  all the  writ petitions  before us  the oral test as  conducted has  been described  as  a  "farce".  The criticism is  based on the allegation that the time spent on each candidate was between 1-1/2 and 2 minutes within which, it was contended, one could hardly assess the suitability of the candidate  on  a  consideration  of  the  five  factors: physical fitness,  aptitude, personality,  general knowledge and general  intelligence, some  of which are also difficult to evaluate  objectively. In an affidavit filed on behalf of the State  of Jammu  and Kashmir,  sworn by Dr. A. H. Fazli, Professor of  Pharmacology, Srinagar,  who was  one  of  the members of  the selection committee, it is stated that on an average the  time spent  for interview  was "4  minutes  per candidate". Mr.  Kacker for  the State  of Jammu and Kashmir submitted that it was a policy decision by the Government to convert the full marks of the qualifying examinations to 100 marks and  allot 50  marks for  interview  for  the  purpose selection. He  explained that  the conversion  was necessary because the  candidates had appeared in different qualifying examinations  and   the  total   marks  in   the   different examinations varied  between 550 and 300. It was pointed out on behalf of the writ petitioners that allotment of 50 marks for interview  after reducing the total marks of the written examination, where  it was 550 to 100, amounted to allotting 275 marks  for interview  as against  550 marks  for written examination. It  was contended  that  this  was  beyond  all reasonable proportion  especially considering  the fact that only 4  minutes  were  spent  in  evaluating  a  candidate’s performance in  the interview.  Our attention  was drawn  to Periakaruppan’s case where this Court thought "earmarking 75 marks out  of 275  marks for  interview as  interview  marks prima facie appears to be excessive". However the conclusion reached in  Periakaruppan’s case on the point was: "While we do feel  that the  marks allotted  for interview  are on the high side  and it  may be  appropriate for the Government to re-examine  the  question,  we  are  unable  to  uphold  the contention  that   it  was  not  within  the  power  of  the Government    to     provide    such    high    marks    for interview............".Reserving 50  marks for interview out of a  total of  150 (100  for written examination and 50 for interview) does  seems excessive  especially when  the  time spent was  not more  than 4 minutes on each candidate. It is difficult to  see how  it is possible within this short span of time to make a fair estimate of a candidate’s suitability on a  consideration of  the five specified factors which are

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not capable of easy determination, such as physical fitness, personality  aptitude,   general   knowledge   and   general intelligence. It is also not clear how by 1266 merely looking  at a candidate the selection committee could come to  a conclusion about his or her physical fitness. The fact that  the allotment  of marks  is in  accordance with a policy  decision   may  not   conclude  the  matter  in  all circumstances; if that decision is found to be arbitrary and infringing Article  14 of  the Constitution, it cannot claim immunity from  challenge.  When  we  say  this  we  are  not unmindful of the observations in Periakaruppan’s case quoted above, which  were  made  in  a  somewhat  similar  but  not altogether identical  situation. It  was also  contended for the writ  petitioners that  reserving such  high  marks  for interview leaves  room for  discrimination and manipulation. It has  been held in Chitralekha’s case that the fact that a system is  capable of abuse is not a ground for quashing it. There is  no reliable material before us to prove that there has been  discrimination or  manipulation of  the  interview marks in  any of these cases. That being so, and considering the possible hardship, if the selections were now set aside, to the  students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed two  terms,   we  are  not  inclined  to  annul  the  entire selection, though allotment of 50 marks for interview in the circumstances stated above seem to us excessive. However, we expect the Government of Jammu and Kashmir to reconsider the matter in  the light  of what  we have said above and, other things remaining  the same,  for future  years to reduce the percentage of  marks allotted  for interview to a reasonable proportion of the total marks for the selection test.      Counsel for  the petitioners  in Writ Petitions 1556-57 of 1979  sought to  make a point that the regulations framed by the  Indian Medical  Council  under  the  Indian  Medical Council  Act,   1956  do  not  contemplate  interview  as  a selection  device  regulating  admission  of  students.  The position is  not so clear from the affidavit filed on behalf of the  petitioners and  in any  case these regulations came into effect after the interviews were concluded in September 1979.      The selection  of one  candidate has been questioned on the ground that he does not fall under any of the categories mentioned in  the orders.  Shri Sanjay  Pathania whose  name appears at  serial No.  52 in the list of candidates annexed to the  supplementary affidavit filed on behalf of the State of Jammu and Kashmir appears to have been selected under the category "Wards  of Medical  College Staff".  It was  argued that this  category is  not based  on a valid classification and infringes  Article 14  of the  Constitution. It  is  not necessary to  examine the validity of the classification for the simple  reason that  this is not a category mentioned in any of  the orders.  That being  so the  selection  of  Shri Pathania must be set aside. 1267      Earlier in  this  Judgment  it  has  been  stated  that following a  request made  by the Government of India 10 per cent of  the seats  in the College was reserved for students from other  States on  reciprocal basis.  This was  a policy decision. However,  the way  the policy  has been  worked is criticised by the writ petitioner in writ petition No. 29 of 1980, Miss  Anita Jain.  Pursuant to  this policy 5 students from Rajasthan  and 1  from Andhra  Pradesh were admitted to the Government Medical College, Jammu. Miss Jain states that she was  a candidate  for admission  to the Medical College,

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Jammu, for  the session  1979-80. On  November 8,  1979  the Government of  Jammu and  Kashmir informed  her by  a letter that she  had been nominated for admission to the first year M.B.B.S. course  in one  of the  medical colleges  in Madhya Pradesh. When  she went to Bhopal for admission on the basis of the  said letter  she was refused admission on the ground that the  State  of  Jammu  and  Kashmir  had  not  admitted nominees of  the Madhya  Pradesh Government  and unless they were admitted  she would  not be  admitted  to  any  medical college in  the State  of Madhya  Pradesh. Her  grievance is that even after she had informed the Government of Jammu and Kashmir of  what had  happened, the  Government did not take any step  to get  her admitted to any medical college in the State or  outside. It  does not  appear from  the affidavits filed by  the State  of Jammu  and Kashmir if the candidates admitted to  the Government  Medical  College,  Jammu,  from outside the  State are  equal in  number to  those from  the State who  have been  nominated  for  admission  to  outside institutions, and  on what  basis the  nominations, whatever the number  is, have  been made.  Anita Jain’s case makes it clear that  the reciprocity  policy, has  not worked  as  it should have.  Miss Jain’s  counsel  informed  us  that  Miss Jain’s was  willing to  go to  any State  for admission to a medical college.  Having nominated  her for  admission to an outside institution,  we do  not think  the  Government  can avoid responsibility  now. We  therefore  direct  the  first respondent, State  of Jammu  and Kashmir, to find her a seat in any  medical college  outside the  State on  the basis of reciprocity, unless  as a  result of our Judgment a few more seats are  available in the medical college at Jammu and she is entitled  to one  of them on merit. For disposing of this writ petition  it is not necessary to dilate on the problems that failure  of the  reciprocity policy in Miss Jain’s case brings to prominence.      It now  remains to deal with two more individual cases, one  of   improper  nomination   and  the  other  of  unjust rejection. In  the list of nominated candidates, the name of Harish Kumar  appears against  serial No. 62. Nomination, as stated earlier, was to be made from two classes of students- candidates from outside the State of Jammu 1268 and Kashmir  and wards of Defence personnel (non-residents). There is  no dispute  that Harish Kumar belongs to the State of Jammu  and Kashmir and it is not claimed that he falls in the other  class. There  was therefore  no  basis  on  which Harish Kumar could be validly nominated. Mr. Kacker, counsel for the  State of  Jammu and  Kashmir, also  did not  try to justify Harish  Kumar’s nomination. Harish Kumar’s admission to the medical college must therefore be set aside.      The  petitioner  in  writ  petition  No.  201  of  1980 Kulbhushan Gupta  obtained 104 marks out of total 150 marks. Of the  31 candidates who were selected on open competition, the one whose name appears 25th in order of merit got 103.25 marks out  of 150.  But Kulbhushan Gupta was not selected on the plea  that he  had been  selected earlier  for  Regional Engineering College. The notification dated June 21, 1979 by which applications  were invited  for admission  to  medical college, Jammu,  for the  year 1979-80  includes to  clauses Nos. 17 and 18 which are as follow:           "17. The  candidates, while applying for admission      to the  M.B.B.S. Course, should specifically mention in      their  application   forms  that  they  have  not  been      selected/nominated by  the Govt.  of  J  &  K  for  any      training course within or outside the J & K State.           18. The candidates, who have already been selected

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    by any  other selection  committee constituted  by  the      Govt. Of  J & K for any other training course within or      outside the  State, are  not eligible  to apply  or  to      appear for  interview for  admission to this college. A      candidate who tries to cheat the Selection Committee on      this account, will be disqualified and even if selected      under false pretence will not be given admission, or if      he/she has  secured admission,  his/her admission  will      stand null and void."      It was  contended that  in  view  of  these  conditions Kulbhushan Gupta  was not  eligible for  selection though no objection was raised when he appeared for interview. That he is a  student of  the Regional  Engineering College  is  not disputed, but  it  appears  that  he  was  not  selected  or nominated  by  the  Government  of  Jammu  and  Kashmir  for admission to  the engineering college nor was he selected by any selection  committee constituted  by the  Government  of Jammu and  Kashmir. Clearly, therefore, the bar in clause 17 or clause  18 cannot  apply to his case, and it must be held that he  was improperly  refused admission to the Government Medical College,  Jammu. Kulbhushan  Gupta  is  entitled  on merit to a seat in the College. 1269      The conclusions  we have  reached on the various issues do not warrant cancellation of the entire list of candidates admitted to  the Government  Medical College, Jammu, for the 1979-80 session  of the  M.B.B.S.  course  but  call  for  a revision of the list. We therefore direct as follows:-           (1)  As the classification made for "rectification                of regional  imbalance"  without  identifying                the areas of imbalance has been held invalid,                the seats  reserved under  this head  may  be                added to  the quota  of seats  earmarked  for                selection on  the basis  of merit  and filled                accordingly.                     Even if  some of the candidates who have                been  selected   under  this   category  were                eligible for  selection  as  candidates  from                areas adjoining actual line of control or bad                pockets, they  cannot be  accommodated unless                the percentage  of seats  reserved for  these                two categories was raised.           (2)  As the selection of Shri Sanjay Pathania (No.                52 in  the list of selected candidates) under                the category "wards of medical college staff"                has been  set aside,  one  more  seat  should                therefore be  added to the "open merit" quota                and filled accordingly.           (3)   The Government  must find  a  seat  for  the                petitioner in  writ petition  No. 29 of 1980.                Miss  Anita   Jain,  who  was  nominated  for                admission to  an outside  institution, in any                medical college outside the State unless as a                result  of   the  revision  of  the  list  of                candidates admitted  she finds a place in the                Medical  College,  Jammu,  on  the  basis  of                merit.           (4)   The admission of Harish Kumar (No. 62 in the                list of  admitted candidates)  has  been  set                aside. To  complete the  quota  of  nominated                candidates another candidate in his place may                be nominated if the Government so desires.           (5)   The petitioner  in writ  petition No. 201 of                1980 Kulbhushan Gupta, it has been found, was                wrongly refused  admission. He is entitled on

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              merit to a seat.      The writ  petitions therefore  succeed  to  the  extent indicated above.  In the  circumstances of  the cases  there will be no order as to costs. 1270      We are  conscious that revision of the list of selected candidates at this stage will not only cause hardship to the students who  will be  excluded but  some of those who might get into  the list now are also likely to experience certain difficulties. We  are also  conscious that the late revision of the  list will  create problems  for the  authorities but that,  we   are  afraid,  cannot  be  helped.  We  hope  the authorities will  deal sympathetically  with the cases where it may  be possible  for them  to render  some help  to  the students in this situation and relax the rigour of the rules to the utmost permissible extent for the purpose. S.R.                                      Petitions allowed. 1271