Dr. Riaz Ahmed And Others Etc. Etc. v. Competent Authority And Another, Etc.

1. Heard.

2. Clause (5) of the J. & K. Medical Colleges (Selection of Cadidates Postgraduate Courses) Procedure Order, 1989 (SRO-3 of 1989 dt. 3-1-1989) is sought to be quashed on the ground of being violative of Art. 14 of the Constitution and a direction is prayed to be issued to the respondents to allow the petitioners to compete in the entrance examination for admission to various Post-graduate Courses in the two States run medical colleges. It is submitted that the petitioners are qualified MBBS doctors having obtained MBBS degrees and are engaged in medical service of the Govt. of Jammu & Kashmir. The petitioners are stated to have been deprived of sitting in the entrance examination for admission to MD/MS/Diploma courses 1992 on the basis of the aforesaid offending clause of SRO-3 of 1989 which, inter alia provides that the candidates with more than two failures in the MBBS shall not be eligible for any Post-graduate (PG for short) course under the said order. It is contended that there is no intelligible differentia between the doctors having more than two failures and the other doctors in the context for the purpose of allowing them to sit in the entrance examination for admission to the PG courses.

3. In the objections filed it is submitted that as no fundamental or legal right of the petitioners has been infringed the petitioners are liable to be dismissed. The issuance of notification in pursuance to SRO-3 of 1989 is not disputed. It is submitted that cl. (5) was incorporated with a view to have uniform approach and for the purposes of bringing at par the standard of selection with other prestigious institutions of the country. The purpose and object of the impugned clause is proclaimed to be selecting most meritorious candidates out of large number of candidates who are desirous of competing for the selection to the PG courses. The fact that the petitioners were in possession of MBBS degrees and in service of the State Government has not been denied. Some of the petitioner are stated to have been allowed to appear in the entrance test provisionally subject to objections/result of the writ petitions. The relevant clause is stated to be legal, valid and according to law.

4. After the commencement of the Constitution and pronouncement made by the Apex Court in various cases, the law relating to fundamental rights as enshrined by Part III of the Constitution, have undergone tremendous change conferring sufficient safeguards upon the citizens for protection of their rights. It was held in R.D.R Shetty v. International Airport Authority of India, AIR 1979 SC 1628 that with the tremendous expansion of the welfare and social service functions, increasing control of material and economic resources and large scale assumption of activities by the State, the power of executive to effect the lives of the citizens has steadily grown. It was further held in that case that the attainment of socio economic justice renders it necessary to structure the power of the executive so as to prevent its arbitrarily, application or exercise. In view of the fact that the petitioners have alleged violation of fundamental rights in the matters of admission to the PG courses it cannot be said that their petition are not maintainable particularly when lately the Supreme Court has gone to the extent of holding that right to have education is not less than a fundamental right. The preliminary objection of learned counsel for the respondents, is, therefore, rejected.

5. Article 14 of the Constitution of India guarantees equality before law and Art. 15 prohibits discrimination on the grounds of religion race, caste, sex or place of birth. It has continuously been held by all the Courts in the country that equality before and equal protection of law means the right to equal treatment in similar circumstances. The State and the authorities contemplated by Art. 12 are under an obligation to ensure equality and not to discriminate between similarly situated person. The State is, however, at liberty to make classification and provide differential treatment to different classes if the purpose and object is shown to be based upon reasonable basis for differentiation. What is prohibited by Art. 14 is class legislation and not reasonable classification. In order to stand the test of reasonable classification, two conditions are required to be fulfilled, (i) classification must be found on an intelligible differentia which distinguishes the persons or other things that are grouped together from others left of the groups; and (ii) that the differentia must have rational relation to the object sought to be achieved by the impugned statute or order. It was held by the Supreme (Court in Pathumma v. State of Kerala, (1978) 2 SCC 1 : (AIR 1978 SC 771 at p. 785).

“—. A reasonable classification is inherent in the very concept of equality, because all persons living on this earth are not alike and have different problems. Some may be wealthy; some my be poor; some may be economically educated; and some may be highly advanced and others may be economically backward. It is for the State to make a reasonable classification which must fulfil two conditions: (1) The classification must be founded on an intelligible differentia which distinguishes person or things that are grouped together from others left out of the group, (2) The differentia must have a reasonable nexus to the object sought to be achieved by the statute….” In Shri Ram Krishen Dalmia v. Shri Justice S.R Tendolkar, AIR 1958 SC 538 it was held (Para 11):

“It is now well establised that while Art. 14 forbid class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification must be founded on different basis, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

Similarly in State of Kerala v. N.M Thimas, (1976) 2 SCC 310 : (AIR 1976 SC 490) it was held that the theory of reasonable classification is implicit and inherent in the concept of quality. Equality of opportunity would an a fair opportunity not only to one section or the other but to all sections by removing the handicaps if a particular section of the society suffers from the same. Art. 14 forbids hostile discrimination and not reasonable classification; In order to provide equality of opportunity to all the citizens every class of citizens must have a sense of participation in building up an egalitarian society, where there is peace and plenty, where there is complete economic freedom and there is no pestilence or poverty, no discrimination and oppression, where there is equal opportunity to education, to work, to earn their livelihood so that the goal of social justice is achieved.

6. In Javed Rasool Bhat v. State of J. & K., AIR 1984 SC 873 it was held (para 8):

“The Government should devise a selection procedure which would be above reproach. No rigid rules can be laid down in these matters by Courts. In the very nature of things it would not be within the province or even the competence of the Court and the Court would not venture into such exclusive thickets to discover ways out, when the matters are more appropriately left to the wise expertise of medical academicians interested in the quality and integrity of medical education and public administrators conversant with various administrative and socio economic problems, needs and requirements. The Court's duty lies in preventing arbitrariness and denial of equal opportunity…..”

In view of the settled position of law regarding the applicability of Art. 14 in the matter of selection to the higher education the respondents have rightly stated that Cl. (5) has been incorporated in SRO — 3 of 1989 for the purposes of selection of the best possible students out of the candidates available for undergoing PG courses in the Medical Colleges of the State. The respondents have, however not shown any reasonable nexus with the object in view for incorporating such provision. It is true that at higher level's of education, merit is the basic criterion for admission but it cannot be presumed that a person having two failures cannot be meritorious for being selected to undergo PG courses. The classification made in the instant case appears not have been based upon any reasonable guidelines nor any object is spelt out by the respondents. Generally speaking all students who are in possession of MBBS degree are to be grouped together and no discrimination can be made amongst them. The respondents may, however, make reasonable classification for the purposes of achieving the object discussed hereinabove for which they have to show a reasonable nexus sought to be achieved by such discrimination. It is not the case of the respondents that the offending clause has been incorporated to curtail the liberty to competing students for selection to the PG courses. The respondents have also not prescribed any cut out point on the basis of merit obtained by the students in their MBBS examination. The alleged object sought to be achieved, as projected in the objections is that the respondents by incorporating such a rule intended to select the best out of the lot for the purposes of undergoing PG courses. It could not be shown by the respondents as to how a candidate having not qualified in the first or second attempt, for any reasons whatsoever, could be adjudged to be less meritorious than the others who had obtained the MBBS degree in their first attempt even though with lesser merit. It cannot be ruled out that there may be cases where a candidate could not have passed MBBS examination with two attempts for the reasons beyond his control. A candidate might not have faired well in the examination on account of his ill health, some unfortunate domestic problem, inadequacy of education facilities, law and order problem, acts of the State or the authorities and like others.

7. It may further be pointed out that the classification putting restriction from consideration for entarnce tests has no obejective sought to be achieved because in the absence of such a condition a candidate is not required to be selected to the higher courses but is only entitled to compete along with others for the purpose of selection to such courses. The respondents could have placed some restriction upon the students competing for entrance if their number was unmanageable but not otherwise. This is not the case of the respondents in this case that they could not manage the holding of examination of all the candidates for selection to the PG courses. In the instant cases, persons similarly situated have been subjected to discrimination and the discrimination so made, which is apparently illegal, could not be justified by the respondents on the basis of the touchstone of the law as laid down by the Apex Court and various High Courts in the country.

8. Learned counsel for the respondents relied upon a judgment of the Supreme Court in Jawaharlal Nehru University Students' Union v. Jawaharalal Nehru University, AIR 1985 SC 567 in support of his contention that the respondents had the absolute authority to fix any criteria of eligibility for appearance in the entrance test. The argument of the learned counsel is without substance inasmuch as in that case their Lordships held that the respondents-authorities were justified in confining the entrance examination to graduates who had undergone 10 + 2 + 3 graduates. Their Lordships were persuaded to come to that conclusion on the basis of the recommendations made at the Conference of Vice Chancellors, wherein it was observed (at P. 568):

“The Universities should have a three year degree course, which some universities would call honours courses and this opportunity should be taken to strengthen the level of courses and update and modernise their content in view of the opportunity made possible by the 2 year post 10 year school including some part of the 1st year programme of the present 1st degree course.

Some universities plan 2 years pass 1st degree course after 10 + 2. They should make a provision for pre-postgraduate course of one year of arbridged course to prepare their students for entry to post-graduate courses.”

In the counter-affidavit filed on behalf of the University Grants Commission, it was stated:

“It is further submitted that the rationale behind the insistence on provision for pre-post-graduate course or abridged course of one year to prepare the students for every University to Post-graduate Courses is to bring them at par with universities having 10 + 2 + 3 pattern of education i.e after school education, universities should have a 3 years' degree course. However, some universities are having 2 years degree course i.e 10 + 2 + 2 or 11 + 2 + 2. In this case the college education in only 2 years and not 3 years. But if student from such universities wants to join Postgraduate studies, he must be brought to the level of 3 years degree course. In fact this is to co-ordinate and maintain standard of education at the pre-post-graduate level and not bar students from those universities who are having 10 + 2 + 2 or 11 + 2 + 2”.

9. Under the circumstances Cl. (5) of SRO-3 (J and K Medical Colleges (Selection of Candidates to Post-graduate Courses) Procedure Order, 1989), is held to be unconstitutional and struck down accordingly. All candidates who are otherwise eligible in the absence of such a provision are entitled for appearance and competing in the entrance examination held for the purposes of making selection to the PG Courses in both the Medical Colleges to the State.

10. As the offending clause of SRO-3 has been struck down being unconstitutional, the selection made to the PG courses consequently should have normally been set aside because it had deprived a number of eligible candidates their right to compete and sit in the entrance examination. However, in view of the fact that the selection has already been made and candidates selected, I am not inclined to quash the selection made for MD/MS/Diploma courses for the year 1992 and direct that all the persons holding MBBS degree, shall be permitted to compete and sit in the entrance examination hence forth in the absence of said clause, but, according to the other conditions specified in SRO-3 of 1989. Learned counsel for the petitioners have also been very fair to concede that the selection already made consequent upon the advertisement notice impugned should not be quashed for this session.

11. Some of the petitions, were, however, allowed by this court to appear in the entrance examination of MD/MS/Diploma courses at their own risk and subject to the out come of the writ petitions. The respondents shall immediately declare their result and pass orders regarding their selection to the PG courses on the basis of their merit obtained in the said examination.

12. All the connected C.M.Ps shall stand disposed of accordingly.

Order accordingly.