AI Drafter 
TaxTMI 
TaxTMI 
1989 (5) TMI 316
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....de in a bunch of writ petitions by a Division Bench of Jammu & Kashmir High Court on the follow- ing grounds: (I) The selection was not held in accordance with the directions of the said court given in an earlier case Jyotshana Sharma and Ors., v. State of Jammu & Kashmir, decided on 17th of April, 1987 (hereinafter called Jyotshana Sharma's case). In that case the High Court directed the State Government to entrust the selection process of the two medical colleges to a statutory independent body and till that was done the State Government should entrust the process of selection to such a body which was to be free from executive influence. No statutory body was constituted and hence according to the High Court the selection made by any other authority was in violation of the directions of the High Court and as such bad in law. (II) The selection was not held by the competent authority as constituted by the order of the High Court dated 17th of October, 1988. Under the said order, competent authori- ty, was to consist of three persons. According to the High Court all the three persons never met and all of them never scrutinised the cases of the candidates who appeared in t....
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....in its all aspects ...... " "... Therefore, it is ideal that an independ- ent statutory body is constituted for conduct of entrance test for the MBBS/BDS course in the State which body shall be kept free from executive influence. Till that is done, State may entrust the process of selection to such a body which will be free from executive influ- ence. At any rate we do not approve Training Branch, or any other department of the State Government under the control of Administration or associate with the process of selection for the MBBS/BDS course in the State Medical Colleges. Selection Committee, till a statuto- ry body is constituted, shall consist of such persons who are academicians of high calibre and with the process of selection principals of the two medical colleges shall necessarily be associated. For evaluation of the answer scripts till a scientific method of setting up of independ- ent statutory body is evolved, as suggested by us, the evaluation of answer scripts shall be made through such examiners who shall be appointed in each subject in consultation with the Vice Chancellors of the two Universities of Jammu & Kashmir." Consequent upon the aforesaid directio....
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....o conduct written tests and hold inter- views and take such other steps as may be considered necessary for the purpose of making selection to the professional courses. (b) To select and invite experts and appoint examiners for the purpose specified in clause (a). (c) To appoint committees of persons specified in clause (b) for the purpose of assisting the Competent Authority in making selection to professional course. (d) To incur such expenditure as shall be necessary for the due discharge of his powers under this para, out of the funds placed at his disposal by the Government from time to time. (ii) Subject to the orders issued by the Government in this behalf from time to time the competent authority shall be fully independent for exercise of the powers vested in him in this paras". Thereafter under SRO 29 1 one Shri Satish Raina, retired principal, S.P. College, Srinagar, was appointed as the Competent Authority on 19.5. 1987. Meanwhile the selection to the medical colleges for the year 1987-88 was also challenged in a number of writ peti- tions. The judgment was delivered in Farooq Ahmed Bacha and others v. State of Jammu & Kashmir, and connected petitions....
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.... Considering the above said agreed order, we dispose of .the petition and order according- ly. The stay order passed earlier shall stand vacated and the connected CMPs disposed of." On 22nd October, 1988 a committee consisting of Prof M.Y. Tawana, Retired Controller of Examination, University of Kashmir, Dr. Y. Singh, Prof. of Physics, University of Kashmir and Dr. Abdul Azim, Reader in Mathematics, Universi- ty of Kashmir, was constituted to assist the competent authority. On 27th of October, 1988 list of selected candidates to the MBBS/BDS course for the session 1988-89 was published. Thereafter, Rajeev Mahajan and number of other unsuccessful candidates started second round of litigation by filing writ petitions in the High Court on 29th October, 1988. While the second batch of petitions was pending before the High Court, on 2 Ist November, 1988 the learned Chief Justice in the capacity of a third Judge, delivered judgment on the reference in Farooq Bacha's case. The learned Chief Justice in the last para of judgment observed as under: "Before parting with the case and even at the cost of repetition, I would like to emphasize on the state government that to ensur....
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....the Constitution in its abso- lute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, Executive and Judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democ- racy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding hori- zon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, ....
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....ions issued in Jyotshana Sharma's case have not been complied with thereby rendering the state- action in making selections for admission to the medical colleges invalid. To examine the High Court reasoning we have to see, as to which of the three organs of the State is entrusted, under the Constitution, with the function of taking a policy decision regarding management and admissions to medical colleges in the State. Both the medical colleges at Jammu and Srinagar are Government institutions. Entry 25 List III of Seventh Schedule, Article 246(2) and Article 162 of the Constitution of India and Section 5 of the Constitu- tion of Jammu & Kashmir which are relevant, are reproduced hereinafter: "Entry 25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List 1; vocational and technical training of labour" "Art. 246. Subject-matter of laws made by Parliament and by the Legislatures of States--(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the mat- ters enumerated in List II....
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.... of ragging, for otherwise it is difficult to see why, after the clear. and categorical statement by the Chief Secretary on behalf of the State Government that the Government will introduce legislation if found necessary and so advised, the Division Bench should have proceeded to again give the same direction. Thus the Division Bench was clearly not entitled to do. It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular le gislation. Of course, any member of the legislature can also introduce legislation but the court certainly cannot mandate the executive or any member of the legislature to initiate legislation, howsoever neces- sary or desirable the court may consider it to be. That is not a matter which is within the sphere of the functions and duties allocated to the judiciary under the Constitution ...... " "... But at the same time the court cannot usurp the func- tions assigned to the executive and the legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law-mak....
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....a conse- quence of the judgment in Jyotshana sharma's case. The notification specifically states "whereas a Division Bench of the High Court by judgment and order 17th April, 1987 inter-alia made certain suggestions for improving the system for making admission to MBBS/BDS course in the State, now, therefore, in deference to the observations of the High Court of Jammu & Kashmir ..... the Government hereby makes the following order ..... "Mr. Bhim Singh, learned counsel appearing for the unsuccessful candidates, however, argued that the principals of two medical colleges have not been associated with the selections. That may be so but we are satisfied that SRO 291 read with 1987 Order issued by the State Government which provide method and elaborate procedure for making selections to the medical colleges of Jammu & Kashmir substantially comply with the directions of the High Court. Mr. Bhim Singh, Mr. Anil Dev Singh, Mr. D.D. Thakur and Mr. Salman Khurshid, the learned counsel appearing for the unsuccessful candidates have vehemently contended that the reconstituted competent authority consisting of three mem- bers never functioned because Shri J.P. Kesar did not join the oth....
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....lusion that when a vacancy occurred it was obligato- ry on the Government to notify its decision as to whether it intended to fill up the vacancy or not, and if the Govern- ment decided not to fill up the vacancy, a notification under Section 7 of the Act was essential to reconstitute the remaining members of the tribunal. The decision was rendered on the construction of the relevant statutory provisions and keeping in view the fact that the tribunal was to perform quasi-judicial functions. The ratio of this decision is inapplicable to the committee constituted by executive order for performing purely administrative functions. Selection of candidates for admission to medical colleges does not in- volve performance of any judicial or quasi-judicial func- tions. Mr. Anil Dev Singh then relied upon A vadh Bihari Sinha v. University of Bihar, C.A. 1650/67 decided by this Court on 4th of January, 1968. In this case Bihar University Regulations framed under the Bihar State Universities Act, 1960 provided that a Board of moderators must consist of five members of whom two must be external experts. Two external experts were invited to join the Board but they declined. The appointment of me....
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....been approved by the competent authority, it cannot be said that the competent authority abdicated its powers to the committee. We, therefore, do not see any force in this argument of the learned counsel. Mr. Bhim Singh also objected to the appointment of committee by the Government. According to him under SRO 291 the committee could only be appointed by the competent authority. Reading SRO 291 with 1987 order it is clear that the competent authority is to function subject to the orders issued by the Government from time to time. The Government was therefore, within its authority to appoint the committee and no fault can be found with the same. All the learned counsel appearing for the unsuccessful candidates have attacked the method and procedure of holding the entrance examination and the viva voce. Mr. Altar Ahmed with the help of Prof. Satish Raina, who was present in the Court and also other officials, explained to us the way the entrance examination and the viva voce was conducted. The entrance examination prescribed by the competent authority is of an objective type test. Every candidate taking the written examination is provided with one copy of answer sheet and one q....
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....peration. This very method of viva voce came for consideration before this Court in Kaushal Kr. Gupta v. State ofJammu & Kashmir, [1984] 3 SCR 407. The court ob- served: " ..... We must record our appreciation that respondents 1 to 3 have practically set at naught drawbacks and deficien- cies in oral interview as pointed out by this Court. The viva voce test conducted must be held to be fair, free from the charge of arbitrariness, reasonable and just ...... Undoubtedly, the expectation of the Court which frowns upon anything arbitrary or unreasonable hag added to the workload of the Selection Committee. But today when there is rush for admission to Engineering Colleges like the Ceaser's wife, the selection must be objective and beyond reproach. That has been scientifically achieved in this case. We hope that bodies charged with the difficult task of ascertaining merits for admission will take cue from what has been done by respondents 1 to 3 and the lead provided by them in this field would restore faith of young aspirants in the system ..... " The objective test for entrance examination and viva voce for admission to the MBBS course in the medical col- leges of Jammu & K....
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....ng seats are to be offered to the reserved category thereafter. Counting the reserve candidate, who fall within the first 50 positions, as gener- al candidate, is thus permissible under SRO 272. The execu- tive orders providing reservations have not been challenged. There is no material on the record to show that procedure followed to fill the reserve/general vacancies has resulted in excessive representation to the reserve category. We, therefore, see no merit in the contention. Mr. B. Sen and Mr. Bhim Singh also assailed the selec- tions on the ground that SRO 380 dated 7th of July, 1983 as amended by notification dated 9th May, 1986 provides that the candidates who obtain such minimum qualifying marks in the written test as may be fixed shall only be called for viva voce. It is argued that since minimum qualifying marks have not been fixed the selection is bad. We do not agree with the learned counsel. The competent authority called candidates for viva voce four times the number of seats available for admission. It was open to the authority to either fix the minimum percentage of marks for providing eligibility or to indicate the qualifying cut-off-line by calling candidates ....