TMI Blog1979 (1) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... om a traditional type of action and typical kind of relief granted in exercise of its writ jurisdiction by the High Court striking down a transitory scheme of admission to the medical colleges of the State evolved by the Government but invalidated.by the High Court on the ground of discrimination in the distribution of seats among the eligible students drawn from two disparate regions of the State. Of course, the instant repercussion of the decision is apt to be confusion in the admission to the academic courses which have hardly commenced and this desperate situation has driven the Government to this Court seeking reversal of the Judgment under appeal. Law promotes order, not anomie. Any incisive study of the exercise of the writ power in India may reveal that it limits its action to quashing or nullifying orders proceeding on a violation of law, but stops short of a reconstruction whereby a valid scheme may replace a void project. This is no reflection on the High Court's ruling but is symptomatic of an obsolescent aspect of the judicial process, its remedial shortcomings in practice and the need to innovate the means, to widen the base and to organise the reliefs so that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected and litigative adventures being inaugurated on grounds of discrimination. One such writ petition having been allowed, the State has, by special leave, come up in appeal. The points raised in the writ petition under Art. 32 are identical. A sensitive appreciation of the grievance successfully ventilated by the writ petitioners in the High Court is possible only if we unfold a fuller conspectus of the facts. Cognizance of some essential circumstances is necessitous as the first step. There are three Universities in the State but we are concerned only with two-the,Kerala and the Calicut Universities-to which the four medical colleges are affiliated, three of which are under the jurisdiction of the first and the fourth under the latter. Broadly speaking, the latter caters to the academic requirements of the Malabar segment plus a neighbouring district and the former to the rest of the State. The Malabar area has been regarded as notoriously backward from the point of view of collegiate education so much so, the number of colleges which provide pre-degree courses necessary by way of qualification for entrance into the medical colleges, are relatively fewer and, on the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the victim of die-hard disparities the constitutional mandate of equal justice under the law responds to it pragmatically and permits classification geared to eventual equalisation. We, therefore, agree with the High Court that current conditions warrant the classification of the student community on the Zonal basis- not as a legitimation of endless perpetuation but as a transient panacea for a geo-human handicap which the State must actively strive to undo. In Kerala, as in some other States, reservation policies of Governments and `equal protection' pronouncements of courts have chased each other. A happy harmony among the great instrumentalities for accomplishment of constitutional goals by complementary action is the desideratum for developing countries, if we may say so respectfully. The principle of reservation with weightage for the geographical area of the Malabar District has our approval in endorsement of the view or the High Court. An earlier decision of the Kerala High Court (1964 KLT 298) gave rise to a Commission appointed to recommend which sections of the people required special treatment under Art. 15(4) of the Constitution, having regard to their socia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit. Even in the case of candidates appearing for the same examination in the same university there may be a cause for complaint in the matter of marks awarded to the candidates. Quite often revaluation has shown that at least in some cases there is justification for the plea for such revaluation. Different examiners value the answer papers and though there is a Chief Examiner his role is quite limited. But these are inevitable and the marginal errors may have to be ignored. By and large the comparative merits of the candidates will be reflected in the marks they obtain in the examination to which all candidates are uniformly subjected to. But the same could not be said in the case of examinations conducted by two or more Universities. It is well-known that some times question papers are tough and sometimes valuation is liberal. Quite often valuation is guided by the percentage of pass expected in an examination. Moderation is also resorted to. While all these may work uniformly on all the candidates appearing for the same examination in the same University that could not be the case with regard to the candidates appearing for the same qualifying examination from another Unive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Governmental action. Methods for securing uniformity of syllabus, pattern of examination, and mode of evaluation in the different Universities, would well be within the province of the Government to undertake. We allow this writ appeal to the limited extent indicated above. In the end, the writ petitioner won the battle but lost the war, for she got an abstract declaration that her exclusion was invalid but was denied the concrete direction to be admitted into the college. We are not impressed much with the surmise which colours the reasoning of the Full Bench and the learned Single Judge that there is such substantial difference in the pre-degree courses and evaluations between the sister universities within the same State that the breach of Art. 14 by equal treatment of the marks unequally secured by examinees in the two universities may be spelt out. It is trite law that every inconsequential differentiation between two things does not constitute the vice of discrimination, if law clubs them together ignoring venial variances. Art. 14 is not a voodoo which visits with invalidation every executive or legislative fusion of things or categories where there are no pronoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But not glib surmises but solid facts supply the sinews of discriminatory inequality or equality. Going by vague reports, some backward universities and colleges have degenerated into degree-dealers bringing rapid discredit to Indian academic status. The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses. The vagarious element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out. Indeed, there may be differences among the colleges under the same University, among the examiners in the same university. Such fleeting factors or ephemeral differences cannot be the solid foundation for a substantial differentiation whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the examinations. Surely either of the proposals is an effective answer to Art. 14. Even so, when the Committee's recommendations were placed before the Government it reflected carefully on the pragmatics of implementation and reached the conclusion that it would take some time to fulfil the pre- requisites to give effect to that formula. Time runs, university applications rush in, admissions must begin, courses must start and administrative paralysis in decision- making is no alibi. Implementational dilatoriness cannot stall the flow of medical education. Caught in this crisis, caused, in part, by the court ruling, Government fabricated a quick scheme of admission to the four medical colleges, which, again, has now been struck down by the High Court resulting in the appeal before us. The corner-stone of classification adopted for medical admissions by the Government this time was universitywise allocation. By itself, this approach had constitutional sanction, having regard to the ratio in Chanchala's case. The ratio in Chanchala concludes the dispute in this case. The discriminatory vice, if university-wise classification and consequential allocation of seats were re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and do not suffer from infirmities, constitutional or otherwise. Since the universities are set up for satisfying-the educational needs of different areas where they are set up and medical colleges are established in those areas, it can safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities. In our view, there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in specialised subjects, like medicine satisfied through colleges affiliated to their own universities. Such a basis for selection has not the disadvantage of districtwise or unitwise selection as any student from any part of the state can pass the qualifying examination in any of the three universities irrespective of the place of his birth or residence. Further, the rules confer a discretion on the selection committee to admit outsiders upto 20% of the total available seats in any one of these colleges, i.e. those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India..... The fact that a candidate having lesser marks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate but also elsewhere in India. The underlying unity of syllabus and broad agreement on evaluation are assumed in this pool system, confined to 20% but open to several universities. Having held in the earlier Full Bench case that university-wise categorisation for seats allocation was good the High Court, in the impugned judgment, still struck down the new scheme as discriminatory. The vice was traced to a certain feature which went beyond mere universitywise allocation and made further modifications governed by the propor tion of the number of students presented by the two universities for the pre-degree and B. Sc. examinations. 'Ay, there's the rub'. The Committee's long range proposal of uniformity between the two universities was unexceptionable and, if adopted, would end apprehensions of injustice stemming from dissimilarities flowing from divergent syllabi and examination methodology. Indeed Government has accepted it as the long-term solution and rightly. The relevant G.O. dated July 14, 1978, sums up the Committee's unification solution thus : As a long teirm solution Government may move the Universities of Kerala and Calicut to unify the cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial Waterloo. That is the bone of contention and so we excerpt the relevant portion: After considering the proposal in all its aspects Government have decided that the seats available for MBBS course after deducting the seats for mandatory admission may be distributed for the students of the two Universities in the ratio of the candidates registered for the pre-degree and B.Sc. course in the two Universities, taking the average of the number of candidates registered for the pre-degree and B.Sc. degree courses with eligibility for admission to Medical Colleges for the last three years as the basis. This operated as a cut back on the total 'Calicut' seats as wholly available for the Calicut University students and, indeed, as urged by counsel for the respondent, subtly subverted the criterion of 'Malabar' backwardness. The Calicut Medical College and the Calicut University were created as the purpose-oriented mechanisms for progressive elimination of educational backwardness in that territory. This objective would be fulfilled if the entire number of seats of the Calicut Medical College were exclusively made the entitlement for eligible students from coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersity an equal number may have to be expelled from the students already admitted from out of the Kerala University quota. This consequence becomes ccmpulsive since the total strength sanctioned for the four medical colleges fixed by the two Universities and approved by the Medical Council of India is 525 seats. Here comes the play of processual realism in moulding the relief in the given milieu. The rule of law should not petrify life or be inflexibly mulish. It is tempered by experience, mellowed by principled compromise, informed by the anxiety to avoid injustice and softens the blow within the marginal limits of legality. That is the karuna of the law. Nor is law unimaginative, especially in the writ jurisdiction where responsible justice is the goal. The court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government, leaving it to the helpless Government caught in a crisis to make-do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse. We are, therefore, unable to stop with merely declaring that the scheme of admission accepted by Government is ul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Universities concerned have the power to increase the strength ad hoc when gripped by a crisis such as has occurred here. The Medical Council of India has an overall control in this field, being the statutory body created under the Indian Medical Council Act, 1956. Thus, the concurrence of the Calicut and the Kerala Universities and the Medical Council of India becomes necessary for working out effective reliefs in terms of adding to the strength on a temporary footing, with a sense of equity and anxiety to do justice to the existing entrants. Unfortunately, neither the Universities concerned nor the students affected are parties. The presence of the Medical Council of India also has to be secured. Confronted by this situation, we directed, as a measure of emergency issuance of notice to the two Universities and made them party to the record. A similar step was taken in the case of the Medical Council of India. At short notice, all the three parties entered appearance. Although Shri A. S. Nambiar, appearing for the University, expressed inability to consent to any course of addition of strength, he agreed that the concerned academic bodies were likely to meet shortly and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fruit of the writ are not individual but collective and while the 'adversary system' makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the court's power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfilment of legality is complementary. This principle of affirmative action is within our jurisdiction under Art. 136 and Art. 32 and we think the present cases deserve its exercise We direct the State Government to admit 30 more willing students who are qualified under the rules and who are students from the colleges affiliated to the Calicut University-in order of the marks secured. They will be distributed by the Selection Committee among the four medical colleges of Government in an equitable way and their decision will be final. The Kerala and the Calicut Universities will be bound to expand the strength of the medical colleges concerned for this year in obedience to this direction of the Court and the respective bodies under the Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state of affairs wholly opposed to the dynamic fulfilment of the imperatives cast by the Constitution upon the nation and its institutions. Said Lord Curzon in a despatch to the Secretary of State: Your despatch of August 5th arrived. It goes to Foreign Department. Thereupon Clerk No 1 paraphrases and comments upon it over 41 folio pages of print of his own composition, dealing solely with the Khyber suggestions in it. Then comes Clerk No. 2 with 31 more pages upon Clerk No. 1. Then we get to the region of Assistant Secretaries, Deputy Secretaries and Secretaries. All these gentlemen state their worthless views at equal length. Finally we get to the top of the scale and we find the Viceroy and Military Member, with a proper regard for their dignity, expanding themselves over a proportionate space of print. Then these papers wander about from Department to Department and amid the various Members of Council. I am grappling with this vile system in my own department, but it has seated itself like the Old Man of the Sea upon the shoulders of the Indian Government and every man accepts, while deploring the burden. (1) Hopefully, we part with this case with the thought that there wil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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