TMI Blog1980 (3) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... Universities, not infrequently take liberties with this larger obligation under provincial pressures and institutional compulsions and seek asylum in reluctant pragmatism mindless of hostility to constitutionality. Nothing is more harrowing for the Court, over-burdened with increasing litigation and thereby forced into slow motion, and unwilling to intervene in an administrative area, than to hamper the strategic stages of educational processes like admissions and examinations, but the Justice system cannot run away from hearing and deciding questions of unconstitutionality, especially when educational authorities shape policies, change rules and make peace with the crisis of the hour, ignoring the parameters of the National Charter. We make these observations driven by the painful experience of facing this situation year after year, from State after State. If higher education bids farewell to national vision and equal opportunity-the two fundamental criticisms leveled before us in these cases-what hope is there for constitutionalism save surrender to provincialism and lobby power leaving the fortunes of students of advanced learning to litigative astrology annually ? A national co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. Articles 14 and 15 do not recognise state frontiers or the cult of 'the sons of the soil', if we may speak generally and over-simplistically. The necessary implication of the constitutional mandate is that every basic degree-holder who fills the bill can apply for admission for post-graduate courses. But the Kerala State, in its wisdom, provided a niggardly quota of 2% of the total number of seats for candidates from the entire country minus Kerala-not a catholic approach informed by nationalist generosity, if we may say so with some trepidation. By way of aside we may observe that other States, observed with provincial impulses, are equally parsimonious is no validation of a violation of law, if it be so. Anyway, the prospectus provided that instead of open competition, 2% of the seats under general merit are set apart for candidates coming from out side Universities other than Kerala and Calicut. 6. Another facet of the forensic right before the High Court needs to be mentioned before we proceed to a formulation of the issues debated in this Court. While Clause 12 of the prospectus frowns upon late and/or defective applications, Clause 13 states : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned single Judge who had specially examined the Government file in this connection, with an eye on the legitimacy of the processes involved and the sufficiency of the nothings and consultations made, came to the conclusion that the communication never represented the decision of the Government and was in conformity with Secretariat practice. The learned single Judge summed up his view thus : There is thus no inherent lacuna or illegality in the proceedings which led to Ext. P3. I hold that Ext. P3 was validly issued. Nothing presented to us persuades to a contrary view although we may presently advert to what, with a slant, the Full Bench of the High Court had to say, in appeal, on this aspect of the matter. Mistrust of Government, implicit in the judgment of the Full Bench in appeal, is violative of comity between instrumentalities and is not permissible unless substantiated by facts. It has been well said that suspicion is the upas tree under whose shade reason fails and justice dies. We permit ourselves these observations only because the learned Chief Justice who spoke for the Full Bench did use words which did not indict but did su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fallout of demolition : As a result of our above discussion and conclusion we allow N.A. No. 222 of 1979 and set aside the judgment of the learned Judge and the rank list for admission to the post-graduate courses in Opthalmology, and quash the selections made on the basis of the said list. We were rather distressed at having to quash the selections of budding youngsters to the specialised, courses. Such thoughts prevailed with us in the Full Bench decision in State of Kerala and Anr. v. Rafia Rahim 1978 KLT 369. While the petitioners in those cases won the battle, they were denied the fruits of victory. We see no ground for a repetition of the same treatment to the petitioners before us. Particularly it is so, because some of them had filed the writ petitions before the selections, and some had obtained interim orders that the selections shall be finalised only subject to the result of the writ petitions in this court. We cannot lightly pass over these aspects. We would accordingly quash the selections made and directly a fresh selection to the courses, in accordance with law and in the light of the observation contained in this judgment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on this qualification, the battle being over the subsidiary issue of whether the appellants before us, whose admission to the courses has been undone by the High Court were entitled to reckon in their favour the possession of a diploma the certificate for which was issued to them only after the last date for applications for the post-graduate degree. We will presently state the events which give rise to this argument. Right or wrong, the Selection Committee did admit three, students who undoubtedly possessed diplomas and, if the marks eligible on that score were to be tacked on, the selections were unassailable except at the instance of candidates from universities outside Kerala and one of whom did successfully challenge the selections before the High Court. 13. Had the final shape of the High Court's order been left intact it would have meant that all those doing their course would be out and the elaborate process of framing fresh rules would involve discussion and debate, consultation and formulation, and then invitation for applications, only to find that, at the end of this excursion, everybody has missed the bus since time does not stand still until gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested by this Court in the Thomas case Kerala v. N.M. Thomas (1976)ILLJ376SC may promote the process of equalisation as a dynamic phase of equality. What is paramount is equal opportunity for each. 16. The Government, in its wisdom, made provision for scheduled castes/tribes, backward classes, students from the colleges of Kerala and other categories and, after working out these enclaves of exclusivism and immunity from national competition on sheer merit, wound up with a magnificent 2% of the total seats by way of homage to equal opportunity open to all Indian candidates put together (less Kerala candidates). 17. Can it be that, while sloganising against the parochial doctrine of sons of the soil , States policy in higher education does not concede more than 2% to Indian candidates qua Indians who are not otherwise sheltered by the dykes of reservations ? The High Court was obviously dissatisfied [with the governmental policy of 2% for open seats which was more a mockery of national integrity, read with equal opportunity, than a sincere respect for the foundational faith enshrined in Articles 14 and 15. You cannot lay wreath and claim to garland ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s should have been excluded from consideration by the Selection Committee. Why ? The ground is given by the Full Bench in appeal thus: Under Clause 13(k) of the application form, which we have extracted earlier, all certificates required had to be produced with the application. Clause 12 enjoins summary rejection for non-compliance. All of which, only seem to indicate that the diploma certificate of weightage must accompany the application. Where it did not, as in this case, accompany the application, there was no right in the Government or special Secretary to over look the defect and direct the weightage to be given even to those who did not have the diploma as was attempted to be done by Ext. P3 letter referred to earlier. Assuming, without deciding that the 'Prospectus' and the notification were a 'law' we would remind ourselves of the caution administered by the Supreme Court that an unannounced law like Ext. P3 cannot bind, and that it is against the principles of natural justice to penalise a citizen on such 'law vide Harla v. State of Rajasthan [1952]1SCR110 . If acquisition of qualification for eligibility or weightage were to be looked i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtified copies of the diplomas along with the applications for admission excluded the candidates from eligibility to the addition of 10 marks. Even if it were [not law, an official declaration of university results, not official communication to the selection committee would be essential. In our view, this over-stress on literality undermines the substantiality of the guidelines in the prospectus. Here the learned single Judge was right. 20. There is nothing unreasonable nor arbitrary in adding 10 marks for holders of a diploma. But to earn this extra 10 marks, the diploma must be obtained at least on or before the last date for application, not later. Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course ? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case is a capital illustration of nominalism battling with realism for judicial success. Both sides admit that the appellants before us had secured diplomas. They further admit (ignoring for a moment the submission on 2 % for outsiders) that if the diploma scores were added, the applicants, by the measure of marks, deserve to be selected, provided the diploma obtained in the examination held in 1979 is within time. Then, why did the High Court upset their selection? Because the certificates of diploma were not attached to the applications and communication by the Registrar of the University to the selection committee was an unauthorised mode of proof, deviating from the prospectus, though authentic in fact. Two flaws vitiate this verbally virtuous approach. True the prospectus directs that certificates shall be produced along with the applications for admission. The purpose obviously is to have instant proof of the qualification. 23. We are aware that when a statute vests a public power and conditions the manner of exercise of that power than the law insists on that mode of exercise alone. We are here unconcerned with that rule. A method of convenience for pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Once this position is plain the addition of special marks was basic justice to proficiency measured by marks. 25. We thus reach the conclusion that the three candidates who had been eventually admitted by the selection committee could not be ousted merely for the reason that the certificate of diploma had not been produced together with the application for admission. Nor, indeed, could government be faulted for issuing a directive to the selection committee that applications from students of the diploma course could be considered subject to the condition that they would produce the diploma certificates before finalising the selection to post-graduate courses . The equity of this instruction of the government comes into bold relief when we realise that no party in this Court has a case that the candidates admitted by the selection committee did not secure a diploma in opthalmology. 26. Even so, there is a snag. Who are the diploma-holders eligible for 10 extra marks ? Only those who, at least by the final date for making applications for admissions possess the diploma. Acquisition of a diploma later may qualify him later, not this year. Otherwise, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous or unveracious touch about the process. 27. Judged by the above tests it is conceded that while the Calicut University's diploma-holders had completed their examination before the last date for M.D. applications and produced the certificate before the selection, the Kerala University diploma-holder completed his diploma examination including public action of results only after the last date for applications and produced the, certificate before the selection. By this token he is ineligible for admission because his diploma result was published only after the last date for applications. The accident of time has cheated him even as in human affairs generally, be it individual or collective, fortune ebbs and flows, influenced critically by happenstances of time and circumstances of life. That is the relativity of Life, if one may look at problems philosophically. We, therefore, hold that appellant Nos. 2 and 3 are entitled to admission and their appeal must succeed. By the same token the appeal of appellant No. one must be dismissed. 28. To dismiss an appeal is merely to declare that judicial remedy will not issue and not that by other processes ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul applicants had moved the High Court of Madras for relief similar to that sought by the petitioners herein. But it appears, their writ petitions have been dismissed. Some out of them have intervened in the petitions. Other non-selected candidates have evinced no interest in challenging the selections made. In the circumstances, it is reasonable to assume that they have abandoned their claim and it is too late for them to press their claim. Certainly, this limited approach strengthens the submission of Shri Krishnamurthy Iyer. The force of the reasoning in Peri-akaruppan's case (supra) consists in the probability that a party who does not litigate manifests apathy for the enforcement of his rights. The logic is simple. He who does not promptly pursue his remedy may reasonably be assumed to have lost interest in gaining admission to the course. If this were a universal proposition, Dr. Gopal krishnan could be allotted the only vacant seat. But, on a suggestion from the court, the Principal of the Medical College, Trivandrum ascertained the wishes of Dr. Naomi J. Vettath and Dr. Joggy Joseph who are diploma-holders from universities outside Kerala and are current ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are willing to take in, for the post-graduate opthalmology course for this year, two more candidates in the Medical College, Trivandrum and the Medical College, Calicut together. This means that the Government is satisfied that, as a special case, sufficient facilities can be found for accommodating Dr. Naomi and Dr. Gopalakrishnan. The Indian Medical Council appeared in Court through one of its officers after a notice was issued to it explaining the purpose for which that Council was being summoned, namely, to tell the Court whether, from a technical angle, it would be feasible to direct two more candidates to be absorbed in the post-graduate ophthalmology course. The officer, on behalf of the Indian Medical Council stated that from the point of view of the Medical Council there was no objection to that course and it would concept to such additional accommodation of two candidates if the Court felt it just to do so. 33. We, therefore, direct the State of Kerala and the Principal of the Trivandrum Medical College, who is the convener of the Selection Committee, as well as the two Universities concerned, to admit into the post-graduate opthalmology course Dr. Naomi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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