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Rahul Verma and anr. Vs. Himachal Pradesh University, Simla and ors. - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. Nos. 201, 206, 207, 218, 219, 229, 234 and 248 of 1982
ActsConstitution of India - Article 14
AppellantRahul Verma and anr.
RespondentHimachal Pradesh University, Simla and ors.
Appellant Advocate Kapil Dev Sood, Adv.
Respondent Advocate Bhawani Singh,; Devinder Gupta,; Chhabil Dass,;
Cases ReferredSukhvinder v. State of Himachal Puidesh
- v.d. misra, c.j. 1. the himachal pra-desh medical college, simla (referred to as the college), provides a course of study for m. b. b. s. degree of the himachal pradesh university (referred to as the university). the prospectus of the college issued for 1982-83 for 'under-graduate (m. b. b. s.) course mentions in detail the method of admission. a total of 65 seats are available. these are divided into two groups. under group 'a' fall the reserved seats which are 34 in number. three seats are reserved for candidates whom the chief minister may nominate at his discretion. one seal is reserved for 'children of defence personnel posted in h. p.' group 'b' relates to unreserved seats which are 31 in number. though the minimum qualifications of eligibility are laid down, admissions are made on.....

V.D. Misra, C.J.

1. The Himachal Pra-desh Medical College, Simla (referred to as the college), provides a course of study for M. B. B. S. degree of the Himachal Pradesh University (referred to as the University). The prospectus of the College issued for 1982-83 for 'under-graduate (M. B. B. S.) course mentions in detail the method of admission. A total of 65 seats are available. These are divided into two groups. Under group 'A' fall the reserved seats which are 34 in number. Three seats are reserved for candidates whom the Chief Minister may nominate at his discretion. One seal is reserved for 'children of Defence personnel posted in H. P.' Group 'B' relates to unreserved seats which are 31 in number. Though the minimum qualifications of eligibility are laid down, admissions are made on the basis of a competitive examination, known as the 'Pre-Medical Test' (P. M. T.) conducted by the University. The examination is based on written papers in the subjects of Physics, Chemistry (including Organic Chemistry) and Biology. There is one written paper in each subject. The question papers are to be 'objective (MCQ) type'. The medium of examination is English. The examination was held on 25th, 26th and 27th, July, 1982. The result was declared on 10th Aug., 1982. The Chief Minister nominated three candidates. A number of writ petitions have been filed by the unsuccessful candidates claiming admission to the college. We are deciding all the petitions by this judgment. Before we deal with the case of each petitioner individually, we will like to dispose of the common questions raised by the petitioners.

2. The reservation of three seats for the nominees of the Chief Minister as well as the nominations made by the Chief Minister are assailed on various grounds. It may be noticed that when Civil Writ Petition No. 201 of 1982 (Rahul Verma v. H. P. University) was filed the Chief Minister had not nominated anyone. The Stale filed the return before these nominations. However, during the pendency of the writ petitions nominations were made. The writ petition was amended challenging the nominations. The State filed an amended return. We will presently refer to them in detail. We will first refer to the nominations.

3. In 'Appendix A' of the prospectus is the application for admission and its annexures which each candidate is required to send along with registration fee by a specified date in respect of reserved and unreserved seats except those to be nominated by the Chief Minister. The prospectus also requires candidates desirous of being nominated by the Chief Minister to make applications. These applications are to be sent direct to 'the Secretary to the Chief Minister, Himachal Pradesh Government, Elerslie, Simla 2'. No form of application is prescribed. No registration fee is required. Even the last date by which the applications should be made has not been prescribed. Of course the candidates must possess the mini-mum eligible qualifications. What information the Chief Minister requires to exercise his discretion is not known. No guidelines have been mentioned. No date is fixed by which time the Chief Minister is expected to exercise his discretion to nominate the candidates.

4. As many as 98 candidates applied to the Chief Minister for being nominated, Since the prospectus is silent about the qualifications which a candidate must possess for being nominated, the applications, which have been placed before us, show that every candidate has given such information which he thought would weigh with the Chief Minister. Some of the applications have been recommended by various persons. Personal letters have also been written to the Chief Minister by persons who seem to know him. We will now refer to the applications made by the three candidates who have been nominated by the Chief Minister.

5. Kavjnder Lal is one of the candidates who has been nominated by the Chief Minister. He also competed in the competitive examination. It is averred by the petitioner that Kavinder Lal obtained very less murks. The petitioner could not possibly know 'he exact marks since the University in its wisdom did not display the full result of the examination on its notice board. However, neither Kavinder Lal nor the University nor the State have cared to tell us the exact marks obtained by him. Their stand, of course, seems to be that this fact is irrelevant. He had, however, obtained 55 per cent marks in the 10 + 2 examination.

6. Now Kavinder Lal is son of Mohinder Lal, the Deputy Commissioner of Simla. The facts which he has laid in bis application for nomination are these :

'(I) The syllabus of P. M. T. examination is that of B. Sc. Part I and is different from 10 + 2 examination and hence it is difficult for me to compete in the P. M. T. examination.

(2) That my family members have rendered services to the State and the country and I belong to a backward area of Kulu valley.' In the 'Particulars' annexed to this application, the percentage of marks obtained in Science subjects in the 10 + 2 examination is given as 54.33. Then follows his claim for special consideration. We would like to reproduce it verbatim :

'Special claim for consideration : (i) That the late uncle of my father Dr. Devi Chand has rendered outstanding services to the Nation. He was a renowned cardiologist of country and died in an accident while attending to the late Prime Minister Shri Jawahar Lal Nehru as his personal physician. Dr. Devi Chand was also one of the founders of Snowden Hospital and none of his family members have received any benefit of nomination from Himachal Pradesh Government.

(ii) That the elder brother of my father is a renowned Plastic Surgeon of the country. He was decorated with Padam Shri and has received B. C. Roy award, for his outstanding work in the field of medical science.

(iii) My father is an outstanding admin-istrator and has done outstanding work in the Pradesh. It was due to my father's posting in Mashobra that I had to come to school to Simla for long five years which hampered my studies. Later my father was transferred to Chamba and I had to join school at Delhi which also affected my studies. Subsequently on his posting to Simla I again changed school to Simla.

(iv) My mother is an outstanding social worker ... .. ... .. Due to her engagements in social work she was not able to look after me in the house which also hampered my studies.

(v) I have received many certificates in games and other extra-curricular activities of the school. I am enclosing copies of the certificates.'

One of the certificates annexed to the application is from the Vice-Chairman, Indian Red Cross Society, H. P. Branch, Simla. This certificate reveals that the candidate's mother has been a member of the Executive Committee of the Indian Red Cross Society, Hima-chal Pradesh Branch, during the year 1981-82, that she has been doing outstanding social work and that her contribution for the raising of the funds for the Red Cross Society was the highest in the State during the year 1981-82. Another certificate is from the Chairman of the H. P. State Social Welfare Advisory Board, Simla. This is dated 10th June, 1982. It again certifies that the candidate's mother 'is a social worker of repute and has been doing social work in various parts of the Pradesh for the last over 20 years. She has taken active interest in various activities especially for the uplift of women, children and weaker section. Her contribution for raising funds for helping poor is commendable.' There is another certificate from the Honorary General Secretary of the Indian Counsel for Child Welfare, H. P. Branch, Simla. This also certifies that the candidate's mother 'has been doing commendable social work in the rural areas of Himachal Pradesh for the last over 20 years. She is at present a member of the Executive Committee of the Indian Council for Child Welfare, Himachal Pradesh Branch, and is working for the welfare and uplift of women and children in the State.' The Chairman has also certified that Mrs. Gupta (mother of the candidate) is the President of the Hospital Welfare Section of Indian Red Cross Society, Simla District Branch, and has done commendable work for collecting funds for the Indian Red Cross Society. We may at this stage point out that the Honorary General Secretary of the Indian Counsel for Child Welfare, Himachal Pradesh Branch, Simla, and the Vice-Chairman of Indian Red Cross Society, H. P. Branch, Simla, is one and the same person-- Mrs. Vidya Stockes. She is also an M. L. A.

7. Now, it is not uncommon that the wife of a Deputy Commissioner, keeping in view the status of the husband, would be made member of the social welfare societies. It is also common knowledge that wives of high Government officials out-do others in raising funds for the social work.

8. The question is what weighed with the Chief Minister to nominate this candidate 7 Is it the social work of the candidate's mother Is it the outstanding administrative capability of the candidate's father Is it because the candidate suffered because of the two transfers of his father Is it because the uncle of the candidate's father was a renowned cardiologist or the elder brother of the candidate's father is a renowned plastic surgeon of the country Is it because he belongs to backward area Or is it because the standard of the P. M. T. examination was higher and since the candidate had only done 10 + 2 examination in which the percentage of marks regarding Physics, Chemistry, and Biology was 54.33 per cent, he was doubtful of successfully competing in the test We will deal with this question a little later.

9. Another candidate who has been nominated is Hirak Dass Gupta. He also competed in the P. M. T. examination. Evidently he could not achieve high marks. In his application he says that he passed the AH India Senior School Certificate Examination (10 + 2) conducted by the Central Board of Secondary Education, obtaining 55.6 per cent marks in Physics, Chemistry and Biology. Earlier he had passed the All India Secondary School Certificate Examination 'obtaining 62% marks in total with 82% in mathematics (distinction) and 72 % in Science subjects.' He states that his father is a Professor of Medicine in H. P. Medical College, Simla, and is a renowned physician in Simla. It is also stated that he is a displaced person from East Pakistan. The candidate refers to various social services being done by his mother 'through different organisations like All India Women's Conference and Lady Chelmsford Club.' It is also stated that the parents of the candidate are doing social service through Simla Kali Bari and Simla Banjiya Smmilani. This candidate also states that 'since the syllabi of the P. M.T. is strictly the syllabi of B.Sc. I of H.P. University and is entirely different from that of Central Board of Secondary Education, my chance of coming out successful in the unreserved category is remote. Since I am not eligible for any reserved quota, like Political Sufferers, Ex-Servicemen or a defence personnel posted in Himachal Pradesh where the seats are reserved, considering the parents' service to the nation, I request you to kindly consider me favourably for admission in the H. P. Medical College.' Along with the application he has submitted a certificate from the Administrative Officer, H. P. Medical College, Simla that the candidate's father is employed by the Department of Health (Teaching Wing) of Government of Himachal Pradesh as Professor of Medicine. In a nutshell this candidate complained of a higher standard of P. M. T. examination and relied upon the position of his father as a Professor of Medicine in the H. P. Medical College in addition to the candidate's mother being a member of various social service organisations.

10. The third candidate who was successful in getting the nomination is Pravin Rai. In his application he states that he has passed the All India Senior School Certificate Examination with 74.75 per cent marks in aggregate. He refers to his father Dr. Ramji Rai, a Scientist in the National physical Laboratory, New Delhi. It is stated that 'he rendered valuable and outstanding services to the Nation. When he went to Iran from 1978 to 1980, to disseminate his scientific knowledge, I remained in India and had to stay without my parents, which affected my studies. A few members of my family have rendered outstanding services in the freedom struggle.' He also refers to the fact that his mother is actively involved in social service and is working for the welfare of the people.

11. Another candidate who applied for the Chief Minister's discretionary quota is Trilok Chand (one of the petitioners in Civil Writ Petition No. 248 of 1982). He also tried his luck in the competitive examination. He has secured 181 marks in total. It is not disputed that these marks are much more than the marks secured by the first two nominees of the Chief Minister. But his father is only a driver in the H. P. P. W. D., Simla.

12. The State has placed before us the applications of 95 candidates who failed to get the nominations. These are stitched in file. There is a note by the Private Secretary to the Chief Minister pointing out the candidates who either do not fulfil the minimum eligibility condition of having obtained at. least 50 per cent marks in the qualifying examinations mentioned in the prospectus, or have not cared to mention the marks obtained by them in such examinations. Another Private Secretary to the Chief Minister has made the following endorsement:

'C. M. has seen all the applications and discussed their merits. Taking into account all the circumstances, he has decided that the following candidates are the most deserving for being nominated out of his discretionary quota in the public interest;

1. Shri Hirak Das Gupta.

2. Shri Pravin Rai, and

3. Shri Kavinder Lal.

Please issue a letter at once to the Principal Medical College, conveying the C. M.'s nomination. Candidates' applications be also forwarded.

I find that the applications are placed loose in the file. After letter is issued, these may be numbered serially and the file be recorded.'

The first as well as the second note are dated 2nd September, 1982.

13. Before we note the rival contentions of the parties, we may refer to the return of the State on this aspect. It may be repeated that before the Chief Minister made the nominations, Civil Writ Petition No. 201 of 1982 had been filed. In para 16 of this petition a challenge was made to the reservation of three seats to the nominees of the Chief Minister. The challenge is:

'No guidelines have been laid in the manner the discretion is to be utilised. The power is vulnerable to favour undeserving candidates and politicians ... ... ... ... ... the language giving power for nomination to the Chief Minister is much too vide capable of being so interpreted as to authorise the Government to show favour to particular individuals and to admit them.' In the counter-affidavit the State submitted :

'The reservation made against the quota of Govt. of India and Hon'ble Chief Minister is good, because it is on reciprocity basis and for maintaining good neighbourly relations with other States and with those countries maintaining cultural and educational affinity with India.'

14. After the nominations had been made by the Chief Minister, the petitioner amended his writ petition to challenge the nominations. A new para 16-A was added and it was submitted that Kavinder Lal and Hirak Dass Gupta, who had competed with the petitioner, had secured very low marks. It was also stated that 'persons who wield political influence and have obliged the Hon'ble Chief Minister have been nominated.' It was submitted that the nominations are liable to be quashed 'inasmuch as there arc no guidelines laid down for the exercise of this discretionary power which is vulnerable to political and other influences at the instance of political big-wigs and persons holding influences in the Government for various reasons. In the manner in which the nominations have now been made by the Chief Minister itself demonstrate the abuse of power and sacrifice of meritorious persons in preference to undeserving wards of persons who have influence with the Government and have been granted admissions through the backdoor.'

15. To the amended petition the State took the objection that the petitioner had no locus standi since he did not apply for this quota of nominations. (We may, at this stage, point out that in view of Civil Writ Petition No. 248 of 1982 in which the petitioner had applied for this quota, this objection does no longer survive). As regards the nominations, the State stated :

'the nominations appear to have been made by the Hon'ble Chief Minister according to rules which have left the criteria and the nominations to the sole discretion of high dignitary of the State. In fact the only challenge that can be made is to the nomination itself and not to the rules in view of the fact that the nomination has been left to a very high dignitary i.e. Hon'ble Chief Minister, who is expected to exercise his discretion in a reasonable and constitutional manner ..... ...... ..... ..... ..... ..... ......

The aforesaid reservation at the Hon'ble Chief Minister's discretion does not in any way amount to abuse of power of the Hon'ble Chief Minister nor it adversely affects the rights of anybody. However, the power to nominate candidates by the Hon'ble Chief Minister is exercised in rare cases that too with great caution after having gone into the minimum eligibility requirements, if fulfilled by the candidates, as envisaged in the Prospectus.'

16. Obviously the State has taken a contradictory stand. To begin with the power of nomination was justified on the ground of reciprocity for good neighbourly relations with other States. These could obviously be accepted as guidelines. But after having actually nominated aforementioned persons, the State wants to take shelter under the plea that the discretion being of the high dignitary of the State, tins is a sufficient guarantee that the discretion is properly exercised.

17. We will firstly consider whether the nominations made by the Chief Minister are bad. It may be repeated with advantage that the Prospectus had invited application from the candidates for the Chief Minister's discretionary quota without giving any indication as to what information was required from a candidate. It may be remembered that reservations have been made for Scheduled Castes, Scheduled Tribes, Political sufferers, backward classes, children of ex-servicemen, children of defence personnel, and for rural areas. The result is that a candidate would not know what information is likely to weigh with the Chief Minister. If the information given by the three candidates, who have succeeded in getting the nomination, can be of any guide, it appears that : (1) candidates who had passed 10 + 2 examination and were doubtful of successfully competing in the P. M. T. examination because of its standard being of B.Sc. Part-I examination could be favourably considered, (2) candidates whose fathers held important Government jobs and had served well were to be preferred; (3) candidates whose father or mother or both had been engaged in social services were to get preference; and (4) the transfer of the father of a candidate from one place to another was also to be a consideration with the Chief Minister on the ground that the ward could not be looked after properly. If that be so, then it was the duty of the authorities concerned to inform the general public so that other candidates possessing similar qualifications or suffering from similar handicaps could supply information on these topics. Thus their right to have a fair consideration at the hands of the Chief Minister has been taken away. Once the applications were invited for nomination by the Chief Minister a right was given to all the candidates to apply so that they may be considered. The consideration will be no better than an eye-wash in case a candidate has been prevented from giving the information which was to weigh with the Chief Minister.

18. Mr. Chhabil Dass, learned counsel for the nominated candidates, contends that nomination was in fact a selection out of the applicants. He, therefore, invites us to look into all the applications to find out whether selections can be said to be reasonable. It is submitted that if these are found unreasonable, these may be struck down. It is also submitted that it was the duty of each candidate to make out a special case which could Dot be visualised because of the divergent conditions prevailing in the State of Himachal Pradesh.

19. It is not the case of the State that the Chief Minister had selected the best candidates out of the applicants. It may be repeated that Trilok Chand, petitioner in Civil Writ Petition No. 248 of 1982, has admittedly received higher marks in the competitive examination than Ravinder Lal and Harik Dass Gupta. He is, therefore, better than them. Of course his father is not a well placed Government official at Simla and, therefore, perhaps had no opportunity to be in the lime-light. Every Government servant is expected to do his best. For meritorious services he gets the rewards by way of promotions etc. This cannot, in our opinion, be a valid consideration for nominating their wards who cannot successfully compete with others. Such qualifications of the parents cannot be even a valid classification. We would, therefore, strike down the nominations.

20. Now we will deal with the question whether the power of nomination as given to the Chief Minister is valid. A number of cases relating to the power of the Central Government to nominate candidates to the Medical Colleges have been cited before us. We will now refer to various decisions.

21. The Supreme Court in Jyoti Pershad v. Administrator for the Union Territory of Delhi, AIR 1961 SC 1602, summarised the rules of guidance for the interpretation of Article 14 of the Constitution. The relevant part of the rules for our purposes is in the following terms:

'(1) If the statute itself or the rule made under it applies unequally to persons or things similarly situated, it would be an instance of a direct violation of the constitutional guarantee and the provisions of the statute or the rule in question would have to be struck down.

(2) The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal of discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi-judicial capacity by a legislation which does not lay down any policy or disclose any tangible of intelligible purpose, thus clothing the authority with unguided and arbitrary powers enabling it to discriminate.

The legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.

XX XX XX XX (3) It is manifest that the above rule would not apply to cases where the legislature lays down the policy and indicates the rule of the line of action which should serve as a guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power, no question of violation of Art. 14 could arise, unless it be that the rules themselves or the policy indicated lay down different rules to be applied to persons or things similarly situated. Even where such is not the case, there might be a transgression by the authority of the limits laid down or an abuse of power, but the actual order would be set aside in appropriate proceedings not so much on the ground of a violation of Art. 14, but as really being beyond its power.

(4) It is not, however, essential for the legislation to comply with the rule as to equal protection, that the rules for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself.

Such guidance may thus be obtained from or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated The legislation, taken in conjunction with well known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits, 1952 SCR 435 : (AIR 1952 SC 123). being an instance where the guidance was gathered in the manner above indicated, (b) or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved by the enactment.'

It was also observed :

'So long, therefore, as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords as basis either for the contention that there bas been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law.'

22. It is submitted by the learned counsel for the parties that though in the instant case we are not concerned with any statute or law or order, we should apply the above principles in order to determine whether the discretion left to the Chief Minister to nominate can be struck down as being arbitrary, unguided, and uncanalised.

23. In Hari Chand Sarda v. Mizo District Council, AIR 1967 SC 829 (at p. 834), it was observed :

'Even if a statute lays down a policy it is conceivable that its implementation may be left in such an arbitrary manner that the statute providing for such implementation would amount to an unreasonable restriction. A provision which leaves an unbridled power to an authority cannot in any sense be characterised as reasonable.'

24. In State of Mysore v. S.R. Jayaram, AIR 1968 SC 346, the rule reserving the right of the Government to appoint any candidate to any particular cadre irrespective of the preference mentioned by a candidate though the candidate has successfully competed in the examination conducted by the Public Service Commission, was struck down since the rules were silent on the question as to how the Government is to find out the suitability of a candidate for a particular cadre.

25. The Supreme Court in State of Punjab v. Khan Cband, AIR 1974 SC 543, on analysing the provisions of East Punjab Movable Property (Requisitioning) Act, 1947 came to the conclusion that the Act conferred uncontrolled power on the State Government or the officers authorised by it to requisition any movable property. It was also found that no guidelines have been laid down regarding the object or the purpose for which it becomes necessary or expedient to requisition a movable property. It was also found that there is no provision in the Act that the power could be exercised only for a public purpose. It was observed (at p. 547) :

'Discretion which is absolute, uncontrolled and without any guidelines in the exercise of the powers can easily degenerate into arbitrariness. When individuals act according to their sweet-will, there is bound to be an element of 'pick and choose' according to the notion of the individuals.'

26. In P.N. Kaushal v. Union of India, AIR 1978 SC 1457, after referring to various earlier decisions of the Court, it was observed (at p. 1473) :

'But the essential point made in all these cases is that unchannelled and arbitrary discretion is patently violative of the requirements of reasonableness in Article 19 and of equality under Article 14, a proposition with which no one can now quarrel. It is in the application of these principles that disputes arise as Patanjali Sastri, C. J., clarified early in the day in V.G. Row's case (AIR 1952 SC 196). Reasonableness and arbitrariness are not abstractions and must be tested on the touchstone of principles pragmatism and living realism.'

This view was reiterated in Avinder Singh v. State of Punjab, AIR 1979 SC 321.

27. It was in Kumari Chitra Ghosh v. Union of India, AIR 1970 SC 35, that the validity of the powers of the Central Government to nominate candidates to the Medical College came up for consideration. In that case the petitioners challenged the reservation of the seats which were filled by nomination by the Central Government to the Maulana Azad Medical College, Delhi. The Central Government bad nominated 9 students out of the 23 seats which were reserved for various categories ((c) to (h) mentioned in the judgment). It was contended that the nominees had obtained less percentage of marks than the petitioners. It was found that the categories in question were reasonable classifications since these were based on intelligible differentia which distinguished them from the groups to which the petitioners belonged. In these circumstances it was observed that the Government could not be denied the right to decide from that sources the admission will be made if the sources were properly classified. It was also observed that if the sources were properly classified whether on territorial, geographical or other reasonable basis, it is not for the Courts to interfere with the manner and method of making the classification. It can thus be validly said that as long as the sources are properly classified, the power of nomination by the Government cannot be questioned. We may, straightway point out that in the instant case, as already pointed out, no category or source has been classified out of which the Chief Minister had the right to make the nomination. It is a clear case where the Chief Minister has applied the method of 'pick and choose' out of the applicants who had applied for nomination.

28. In D.N. Chanchala v. State of Mysore, AIR 1971 SC 1762, which related to the reservation of seats in Mysore Medical College, the Court observed :

'......... if the sources were properly classified, whether on territorial, geographical or other reasonable basis, the Court would refuse to interfere with the manner and method of making the classification. ........ the only question which would remain for consideration would be whether such categorisation has an intelligible criteria and whether it has a reasonable relation with the object for which the rule for admission are made.''

29. It is submitted by the learned counsel for the opposite party as well as the Advocate General that the Supreme Court in State of U. P. v. Pradip Tandon, AIR 1975 SC 563, has observed, after referring to D.N. Chan-chala's case, that a provision laying down a source is not a reservation and to that extent Chanchala's case having been interpreted, the very power of nomination amounts to a source. We are afraid we cannot agree. We have already reproduced the relevant part of the judgment in Chanchala's case. Para 3 of the judgment in the case of Pradip Tandon shows that the nominations to be made by the Government of India in respect of the seats reserved for the nominees were specified. The relevant line reads : '26 seats were reserved for the nominees, of the Government of India under various heads' (Em-bhasis supplied). It shows that there was categorisation which itself was valid and it was only out of these categories that nominations could be made.

30. Our attention has been drawn to a judgment of a learned single Judge of the Rajasthan High Court in Inder Dev Arya v. University of Rajasthan, AIR 1981 Raj 269. In that case the challenge was to, amongst others, the reservation of 15 seats for students from abroad/other States to be nominated by the Government of India and the reservation of 5 seats for students from other States of Indian Union on reciprocal basis. It was observed that these reserva-tions in fact lay down the sources for selection of candidates, but it has to be seen whether in laying down the said sources a rational classification has been made and' whether the classification has a reasonable nexus with the object sought to be achieved by the rules.

31. It has been contended by the learned counsel for the respondents that Prospectus does contain the guidelines. A reference is made to the following:

'Admission to this college is done according to the conditions given below, which should be carefully gone through by the desirous candidate while submitting application.

Subject to any specific order of the Hima-chal Pradesh Government, the total seats in the college are limited to 65. Children of bona fide Himachalies/Himachal Government employees and employees of autonomous bodies wholly or partially financed by Himachal Pradesh Government will only be considered for seats under Group A (Reserved) Categories (1), (2), (5), (6), (7), (8) and (9) and Group B (Unreserved). In Group A (Reserved) Categories (3) and (4) the eligibility will be determined in accordance with tile condition laid down there against.'

32. Then follows the distribution of seats under various categories. Part IV relates to the eligibility. It lays down the minimum qualifications which each candidate must possess in order to sit in the competitive examination or to claim the nominations. It is contended that the words 'according to the conditions below' and the phrase 'the eligibility will be determined in accordance with the condition laid down there against' is a sufficient guideline for the purpose of enabling the Chief Minister to nominate. We find no force in this contention. These words have to be read with reference to the context. The conditions talk about the eligibility and the definitions of the terms 'Political Sufferers', 'Permanent residents of Himachal Pradesh', 'Rural Areas', as well as the minimum educational qualifications and the percentages of marks obtained therein. The conditions of eligibility cannot by any stretch of imagination be said to be a guideline for the purposes of nomination by the Chief Minister. These were the minimum qualifications which every candidate must possess before he could be admitted to the Medical College. What was necessary was to lay down the guidelines on which the Chief Minister could exercise his discretion to make the nominations. We are also not impressed by the contention that since every statute must be supposed to be for public good and the presumption must be in favour of constitutionality, the present power of the Chief Minister to nominate should he upheld even if necessary by reading down the rules (1979 (2) SCC 249 : (AIR 1979 SC 1588), Commr. of Sales Tax, Madhya Pradesh. Indore v. Radhakrishan, is cited.) 32. Since we find that there is no identfiable source, much less validly categorised and classified, the power of nomination given to the Chief Minister must be struck down.

33. We now advert to Mr. Sood's contention that since there is more than 50 per cent reservation and so the reservation is bad. We may recapitulate that there are 34 seats for the reserved category whereas the open category has 31 seats. However, in 34 seats arc included the four seats of the Government of India. If these seats are excluded, then undoubtedly the reservation is not more than 50 per cent., The Supreme Court has laid down in the cases of Chitra Ghosh (AIR 1970 SC 35) and D.N. Chanchala (AIR 1971 SC 1762) that the nominees do not strictly fall under the reserved category and they have to be excluded from the consideration of the reserved seats. We, therefore, do not find any force in this contention.

34. The last contention of the learned counsel for the petitioners is that marks had not been properly awarded.

35. Now, during the course of hearing We had been shown the answer books in which marks in respect of particular questions were disputed before us.

36. Mr. Anjni Kumar who had set the question paper in Biology for the Pre-Medical Test. 1982, was questioned by us with regard to two questions. Question No. 60 reads: ''Portuguese-man-of war' is known as'. Then followed four alternatives. A candidate was required to tick the correct alternative. One of the alternatives given was 'Sea-anemone'. Rahul Verma, petitioner in Civil Writ Petition No. 201 of 1982. white answering this question gave a note 'none of the above answers is correct' and the correct answer was ''Physalia' member of Coelentrata'. Mr. Anjni Kumar agreed that indeed 'Physalia' was the word by which the 'Portuguese-man-of war' was known and that 'Sea-anemone' is the group of animals under which it falls. He stated that his intention was to find out the group of animals It was pointed out to him that the question required a candidate to give the name by which it was known and not to specify the group of the animals in which it fell. He readily agreed that it would have been better if be had asked about the group of animals. We, therefore, find that Rahul Verma petitioner was justified in understanding the question as it was put and answering it correctly. He was, therefore, entitled to one mark more. This will take his total of marks to 187.

37. The contention raised on behalf of Rahul Verma petitioner that his answer to question No. 10 relating to food poisoning is correct, cannot be accepted. The question was : 'which causes food poisoning ?' Then followed four alternatives. Two of the alternatives were 'Clostridium' and 'Salmonella'. The petitioner picked 'Salmonella' as the correct answer. He avers in the petition that both the alternatives are correct. Mr. Anjni Kumar, who had set this question, explains with reference to W.C. Frazier's book on 'Food Microbiology'. 2nd Edn.. Pp. 436, 444 and 450. In this book under the heading 'Food Infections' a reference is made to 'Salmonella'. It reads :' 'Infections by certain species of Salmonella sometimes are called food poisoning because the symptoms in general resemble those of staphylococcus poisoning and the outbreeds commonly are exclusive.' On page 451 there is another sub-heading and the author writes : 'Salmonella infections are called 'Food Poisoning' and may be caused by any of a large number of species or serological types of species of that genus, most of which bear the name of the location where the first identified culture was obtained.' Mr. Anjni Kumar explained that an incident of a particular type of food poisoning has nothing to do with the question since the question related to the cause of food poisoning. In view of the explanation of Mr. Anjni Kumar. we hold that the correct answer to the question was 'Clostridium' and not 'Salmonella' and so the petitioner's contention is rejected.

38. Now Ved Kumar petitioner on re-checking of the total of the marks, had to be awarded one more mark taking his total marks to 187. This tie between him and Rahul Verma is to be broken in terms of the following para 5 of the Prospectus:

'Merit shall be determined on the basis of aggregate number of marks obtained by the candidates and a merit list shall be prepared by the Controller of Examination. The inter se ranking of the candidates obtaining equal aggregate marks in the competitive examination shall be according to the aggregate marks obtained by the candidates in Physics. Chemistry and Biology or qualifying examination.'

Comparison of aggregate marks in Physics, Chemistry and Biology of the qualifying examination shows that Rahul Verma petitioner gets more marks and so he is entitled to be selected.

39. A contention has been raised that Ved Kumar's marks in the B.Sc. degree should be considered. We find that Ved Kumar did not have Biology in that degree and we cannot, therefore, compare the marks obtained by him in B.Sc. degree. It has not been brought to our notice if anyone else has also been awarded a total of 187 marks. In these circumstances Rahul Verma will be en-titled to be admitted subject to other rules like physical fitness etc. We will, therefore, allow this petition with costs. Counsel's fee Rs. 300/-. Costs will be borne by the University, respondent No. 1, since it is due to the fault of the examiner that he was awarded less marks.

40. We find that Ajay Kumar Dutta petitioner in Civil Writ Petition No. 206 of 1982 as well as Sanjay Kumar petitioner in Civil Writ Petition No. 248 of 1982 were awarded 186 marks each whereas Surinder Kumar petitioner in Civil Writ Petition No. 201 of 1982 and Trilok Chand petitioner in Civil Writ Petition No. 248 of 1982 were awarded 181 marks each. They had raised objections about totalling of marks, failure to award marks, and wrong marking of answers. During the course of arguments the relevant answer books and the answers in question were scrutinised by us. The students were permitted to see these answers and each one was satisfied. Since we find that their objections were not well founded, their petitions fail and are dismissed.

41. Civil Writ Petition No. 218 of 1982 is of Shasi Kant Sharma petitioner. Mr. Nag, learned counsel for the petitioner, contends that the reservation of seats for the rural area should be struck down. We find that no one has been allotted seats in this quota. Therefore, we need not go into this question. We may, however, make a reference to a Division Bench judgment of this Court in Sukhvinder v. State of Himachal Puidesh, ILR (1973) Him Pra 1203 : (AIR 1974 Him Pra 35) in which this reservation has been upheld. We may also point out that the term 'rural area' has been defined in the Prospectus. This petition is, therefore, dismissed.

42. Meera Sachdev is the petitioner in Civil Writ Petition No. 219 of 1982. She obtained 185 marks in the competitive examination. Under the rules a minimum of 10 women candidates were to be admitted irrespective of the women candidates, if any nominated by the Central Government or the Chief Minister. The University, which held the competitive examination, sent a list of 10 women candidates for admission to the college. The University also sent the name of one Avtar Singh for the one seat reserved for the children of defence personnel posted in Himachal Pradesh. Now, out of the 10 women candidates one Rupali Sbarma who was duly offered the seat, declined to accept it. Her mother wrote to the Principal of the College that Rupali Sharma was not interested in admission since she had got admission in another Medical College. Thus the number of women candidates fell to 9. However, in the meantime Avtar Singh failed to get the admission because he could not, it is stated, satisfy that he was the ward of a bona fide Himachali. The University, therefore, nominated the next person for this quota who was one Ambika Kaprate, a girl. It is conlended by Mr. Nag, learned counsel for Meera Sachdev, that the petitioner was entitled to admission as 10th woman candidate from the open category in case action had been taken quickly by the University to nominate the 10th woman candidate when a reference was made by the Principal of the Medical College. Of course if Ambika Kaprate had not been nominated Meera Sachdev was the 10th woman candidate and she would have got the admission. Even thereafter Ambika Kaprate would have got the admission since she was to occupy a reserved seat. In the net result one boy had to be eliminated from the open category. The question for decision, therefore, is whether there bad been any mala fides on the part of the University in not nominating Meera Sachdev as the 10th woman candidate before nominating Ambika Kaprate for the reserved seat

43. The University has placed the relevant records before us. We find that it was on 23rd August, 1982 that the Principal of the College wrote to the Controller of Examinations of the University drawing the latter's attention to the fact that 'Brig. H.C. Sachdev has delivered to me a photostat copy of letter dated 17-8-1982 stated to have been signed by 'Shanta Sharma' mother of Rupali Sbarma, wherein she has intimated that her daughter (Rupali Sharma) has secured admission in a Medical College at Delhi and under these circumstances she will not be able to join in Medical College, Simla. The above letter is forwarded in original for your kind perusal and further necessary action.' In the University a note was written on this letter. It is : 'The Principal has not demanded any more names and the letter is not in original which is said to be written by the mother of the candidate. Therefore, we cannot take any action on it. May file please unless the Principal asks for another name.' On the same day this note was seen by the Vice-Chancellor.

44. The Principal wrote a letter on 27th August, 1982 to the Vice-Chancellor of the University. This was received by the University on 28th August, 1982. The relevant part of this letter reads:

'In this connection this is to inform you that one Miss Rupali Sharma D/S Sh. C.D. Sharma (Roll No. 664) one of the ten girl candidates appearing at serial number 24 (Unreserved category) of the list has not reported for admission so far, as already intimated vide this office letter of even number dated the 23rd August, 1982, addressed to the Controller of Exams., Himachal pradesh University.

This is for, your kind Information and further necessary action please.' On 27th August, 1982 a letter was written by the Controller of Examination, to the Principal. It refers to the Principal's letter dated 23rd August, 1982. The relevant part of the letter reads :

'The Vice-Chancellor has desired that a proper requisition, if you need more names of the candidates for admission to M.B.B.S. course 1982-83, may please be sent. However, you may keep in view the implications of various writs filed in the High Court of Himachal Pradesh while sending such requisition.'

Evidently this letter crossed the subsequent letters sent by the Principal. It may at this stage be noticed that we had, while admitting some writ petitions, directed the University as well as the college to keep seats for the petitioners vacant. This order was later on clarified on 30th August, 1982 to the effect that the seat in the category to which the petitioner had laid claim in the writ petition should be kept vacant.

45. The relevant noting on the tiles of the University shows that an objection had been raised about the copy being not original and the signatures of Rupali Sharma's mother being not legible. It is submitted before us that the University was not conversant with the signatures of Rupali Sharma's mother and so also it could not be taken that the seat had become vacant.

46. The noting further reveals that the Principal's letter dated 27th August, 1982 was received in the University on 28th Aug., 1982 through a special messenger. It was noticed that the Principal had not specifically requisitioned any name in the place of Rupali Sharma. On the same day the Vice-Chancellor directed that the Principal be requested to inform the University whether the last date for admission was over as well as the number of vacancies for admission in the College.

47. Still another relevant fact may also be noticed. One Biswajit Mukerjee filed Civil Writ Petition No. 199 of 1982 claiming the reserved seat for the children of Defence personnel. It may be recalled that one Avtar Singh Rai had been nominated for this seat provisionally subject to his furnishing Himachali domicile certificate up to 19th August, 1982. Avtar Singh Rai failed to produce the relevant certificate though the Principal waited for the same till the last date of admission, that is 21st August, 1982. One Miss Ambika Kaprate had also filed a writ petition claiming this seat. Though the order cancelling the name of Avtar Singh Rai was passed on 28th August, 1982 by the University, no nomination was made because of the stay granted in favour of Miss Ambika Kaprate by this Court. Biswajit Mukher-jee's petition was dismissed on 2nd Sept., 1982 and Miss Ambika Kaprate withdrew her petition since she was nominated. It is explained that the various stay orders passed by this Court in the writ petitions had complicated the matter so much that the University acted very cautiously so as not to be blamed for violating any order. Moreover, it is submitted that after Avtar Singh Rai had failed to furnish the requisite Himachali certificate, the seat was to go to Miss Ambika Kaprate, the next candidate, according to the marks obtained by her in the competitive examination. It is also submitted by the University that no new name of the woman candidate could be sent by the University because one Miss Madhuri Verma, whose name was already sent, was not given admission by the Principal till 4th Sept., 1982 and so the position was not clear. The Vice-Chancellor has filed a detailed affidavit explaining the circumstances under which the name of the petitioner could not be sent. We are satisfied that there were neither any mala fides nor any inordinate delay on the part of the University in doing its duty. We, therefore, do not find any force in the petition which is dismissed.

48. The result is that except the petition of Rahul Verma (one of the petitioners in Civil Writ Petition No. 201 of 1982) all other writ petitions fail and are dismissed.

49. Before parting with these petitions we must observe that whereas under Para V --'Details of competitive test/examination' on page 4 of the Prospectus -- it is stated : 'The merit list indicating marks in respect of all the candidates appearing in the Pre-Medical Test will be declared and displayed on the Notice Board by the University', we find that the University for reasons best known to it did not display the merit list in respect of all the candidates. The result was that a candidate whose name and marks had not been displayed on the notice board did not know where he stood and when his chance could come if anyone who was nominated by the University for admission failed to take advantage. If this list was displayed, each candidate would have known where he stood in the merit list. In our opinion if is the duty of the University to display such a list on its notice board and we hope that in future it will be duly displayed.

50. Another fact which we must highlight is this. The University does not allow any candidate to even have his totalling of marks rechecked. In as many as three cases we have found that the totalling of the marks was not correct. In one case, which we have earlier decided, the candidate achieved quite a higher position in the merit list. It will be better if the University can make some provision so that no candidate suffers on this account.

51. As a consequence of our striking down the three nominations made by the Chief Minister, three seats fall vacant. We would, therefore, recommend to the authorities concerned to allot these seats to candidates who competed for the seats in the open category according to their positions in the merit list.

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