TaxTMI 
TaxTMI 
1980 (3) TMI 271
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....ies 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 consensus on this issue is long over-due and....
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....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 : Certificates to be produced :-In all cases true copies of the following documents have to be produced....
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....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 suspect : We wish to record [that it was stated for Respondents 4 and 5 in W.A. No. 222 and 245 of 1979 that the marks of the Diploma Test were communicated to the principals on before the last date for receipt of applications and received by them on 31-3-1979. There was nothing to show whether the communi....
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....ungsters 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. 9. Whatever might be the passion for correct law and provocation on account of [governmental indifference, the court, in our view, must use its power to correct error and promote, order and not strike down an illegal error without going forward to affirmative action which may minimise injury generally. Indeed, the judicial process, in its creative impulse, must hesitate to scuttle, salvage wherever poss....
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....n 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 government implements the High Court's will. 14. The major target of attack before the High Court was the 2% reservation for the entire country's candidate population from outside Kerala in what was called the "open merit pool". The reason for the nullification of the parsimonious percentage for 'outside' candidates in the open merit pool has peen stated by the High Court thus : Despite our anxiety, we are afraid we cannot salvage the principle of s....
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....omage 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 if we may put the point in poignant imagery. Therefore, the High Court struck down the formula for selection because it regarded that a higher proportion of seats for all in "open competition" was a constitutional necessity. We do not delve into this aspect at greater length or scan the pros and cons of the point canvassed because we have already decided in Dr. Jagadish Saran and Ors. v. Union of India (Supra) what guidelines should govern admissions to medical colleges at the higher levels. We, therefore, do not propose to interfere with the ho....
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....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 into subsequent to the last date, we should think that only an open and official or authentic declaration of result by the university, or perhaps on official intimation of declaration of result alone can serve the purpose. The direction in Ext. P3 to give weightage to the Kerala University graduates would certainly not serve the purpose, and was wrong and illegal and has vitiated the selection. Bluntly expressed, the court took the rather pharisaic view that "the diploma certificate for weightage must accompany the application. Where it did not, as in this case, accompany the applicati....
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....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 later, yet before the date of actual selection. The emphasis is on the diploma, the proof thereof subserves the factum of possession of the diploma and is not an independent factor. The prospectus does say : (4)(b) : 10% to Diploma holders in the selection of candidates to M.S., and M.D., courses in the respective subjects or sub-specialities, 13. Certificates to be produced :- In all cases true copies of the following documents have to be produced :- x x x (k) Any other certificates required along with the application. This composite statement cannot be read formalistic fashion. Mode of proof is geare....
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.... 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 proving possession of a qualification is merely directory. Moreover, the prospectus itself permits government to modify the method, as the learned single Judge has pointed out. In this view, we see nothing objectionable with the government directive to the selection committee, nor in the communication to the selection committee by the university, nor even in their taking into consideration and giving credit for diplomas although the authentic copies of the diplomas were not attached to the application for admission. A hundred examples of absurd consequences can be given if the substance of the matter was to be sacrificed for mere form and prescriptions regarding procedures. 24. It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingl....
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....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, the dateline makes no sense. So, the short question is when can a candidate claim to have got a diploma? When he has done all that he has to do and the result of it is officially made known by the concerned authority. An examinee for a degree or diploma must complete his examination-written, oral or practical-before he can tell the selection committee or the court that he has done his part. Even this is not enough. If all goes well after that, he cannot be credited with the title to the degree if the results are announced only after the last date for applications but before selection. The second condition precedent must also be fulfilled, viz., the official communication of the result before the selection and its being brought to the ken of the committee in an authentic manner. May be, the examination is cancell....
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....ivity 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 justice should not be sought or granted. From the humane perspective and with a view to helping appellant No. one and to pursue his relief through the University or other appropriate State agency, we directed the impleadment of the Indian Medical Council which is the statutory body concerned, at the national level, with higher medical degrees and courses. The Medical Council has not appeared before the court though its presence would have helped the forensic process to heal the fractured academic course. But we cannot wait longer. It behaves the State to give academic justice-not legal remedy-to appellant No. 1 if circumstances permit, having regard to the fact that, with diploma qualification, he has spent months in doing his opthalmology degree course. In law he fails, in justice he need not, if marginal adjustments by increasing one sea....
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....position, 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 currently working as doctors in hospitals. Dr. Gopala krishnan unlike the two others, is working as an ophthalmologist in a private hospital. All the three have indicated their wish to continue in the post-graduate degree course in opthalmology when the Principal enquired of them, although only Dr. Gopalakrishnan has chosen to assert his rights in court. 31. In this dilemma, we consider that while the observations in Periakaruppan's case (supra) are entitled to great weight, it is conceivable that Dr. Naomi who has out-distanced the other two in marks and is desirous of joining the post-graduates course might have been prevented by indigence from litigating for her right. Such a bright student who has much more merit than the other two should not suffer for the sole reason that she has not come to court. This ground does not operate in favour of Dr. Joggy Joseph who has a slight edge over Dr. G....
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.... 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 and Dr. Gopalakrishnan for this year. The two applicants will report within 10 days from today for such admission and the admission will be accorded to them. The Principal of the Trivandrum Medical College will inform Dr. Naomi about this direction of the Court. 34. Last there should be any further confusion we make it clear that the two candidates who according to our earlier direction will continue their course, will not be disturbed. Dr. Skaria who got hi? diploma from the Trivandrum Medical College will be permitted to continue in the light of the Compassionate considerations we have earlier mentioned. 35. To conclude, we hold that the 2 % open seats for the candidates from all the Universities of India outside Kerala runs counter to the constitutional directive of equal opportunity and the preambular emphasis on national integrity and the State will do well to fashion a formula in terms of the guidelines given in Dr. Jagdish S....