# 97 4 STATE OF KERALA v. KUMARI T. P. ROSHANA & ANR

- **Citation:** [1979] 2 S.C.R. 974
- **Court:** Supreme Court of India
- **Decided:** 1979-01-17
- **Case number:** Civil Appeal No. 2297 of 1978
- **Bench:** \'. R. Krishna !Yer, R S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/97-4-state-of-kerala-v-kumari-t-p-roshana-anr-7718
- **Pages:** 23

## Headnote

Consti:ution of India 1950-Al't. 14-Medical College admission-Selection
of students /ro1n different universities with no unifonnity of standards--Reser11a-
:io11 of 5<'t:1~ 011 territorial basis-Validity-H'11t:rhcr vio/,uii·e of Art. 14.
•
•
Auiclcs 32 and 136-When root of' the r;riei'l.'liCr? and the fruit of writ are
nor ilulh·id1ud but cC9llective courts power is l1Tle cf a.f]innative structuring of
C
rt~drt.\S 10 nu1kc it n1eani11gful and sociall.v re!~l'(l.'!f-Dccf ,.innaf t,'1tidclir.es 10 be
_.-
E
F
G
gh·en.
The State of K.crala appointed a Comn1i&Sion to recommend which sections
oi the people required spe-.::ial tr ec.tn1ent under Art. 15 ( 4) having reganl to thl!ir
scdal and educational conditions.
That Commission
recommended
equitable
allJcali()fi of seals on the basis of educational b:ick\vardness o.f the -:Vlnlahar nrca.
Subgtantinlly foui.1ding itself on these
recommendations the State Government
evolved a formula, which by polling all applications for admission to the four
medical colleges in the state, one cons.olidated list was prepared and c;indidate,s
\Vere selected strictly
ac,..::ording to the marks secured by thenl.
This schen1~ having been stn1ck down by the High Court, a fresh exp'ert committee was appointed to cxarnine the quo 111odo of admissions to medica.l colleges.
'fh:e Government on the basis of these recommendafons decided that seats available for the nledical course might be distributed for the students of the two
Uni1:crsities of Kcrala and Calicut in the ratio of the candidates registerl!d for
the pre-degree 21nd B. Sc. course in them.
In a writ petition under Art. 226 the High Court held that the
~...:h'en1e of
selection for admission to the medical colleges on on assessment of inerits of
students drawn from different universities with no uniforn1ity of standards
is
obje<."tionabl'e and the linknge of the division of seats \Vith the registered studentstrength of the universities bears no nexus :ind is Yiolative of Art. 14 of the
Constitution.
On the question of the validity of the scheme of selection for admission to the
medical roJleg'es.
J!ELD : 1. Current conditions warrant the classification of student comn1unity on the Zonal basis-not as a legitimation of endless perpetuation but a9' a
transient panacea for a geo-human handicap
which the State
must actively
strive to undo. f980 E]
2. 1he principle of reservation with weightagc for th,,: geogrnphical area of
the t1lalabar district is approved. [980 G]
H
3. The reasoning of the High Court that ther'e is such substantial difference
iR the pre-degree courses and evaluations bet\vecn the sister univers-ities within
the same State that the breach of Art. 14 by equal treatment of the nut·rks nn-
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KE!b\LJ! v. ROSHANA
97 !j
·eqillilty secured by the examinees ifi the !>Vo U11itetsi1ies may be spelt out.
A
Evet'f inctmsequentilll differentiation between two things does not cortstitute the
. viCe or di:sctln'llnatfo .. 1, if lzm clubs them together igr.oring vanial
varittnces.
Atlitle l 4 is not a voodoo which visits. wi h invalidation every executive or
regWahYe fu:rion of things or categories where there are no pronounced inequali ..
tiCS. Matbem•tical equality is not the touchstone of constitutionality. [983 E-FJ
St.W of Jammu & Kashmir v. Triloki Nath Khosa & AllT. [1974] 1 SCC 19
B
at 42; referred to.
4. A latge latitude is allowed in this area to the State to classify or declaasify
based ()fl diverse considerations of relevant pragmatisn1 and the judiciary should
IIOl "nlllb. in" Where the executive vatily treads.
[984 A]
5. Many colleges are run by the State or institutional rnanagement9 where
pre-degree or degree courses are undertaken.
The teachers move from
one
university ju1hdiction to the o_ther, the teaching materi2J is. inevitably of a, like
naturt, the sut:jects taught must ordinarily be :ilik.!. The ~·xaminers are ustinlly
dra\\·n from \\'ithin the s· ate or neighbouring States.
E

## Text

_Characters 0–39,696 of 62,497. This is a partial read: ask again with offset=39696 for what follows._

A
B
97 4
STATE OF KERALA
v.
KUMARI T. P. ROSHANA & ANR.
January 17, 1979
[\'. R. KRISHNA !YER AND R S. PATHAK, JJ.]
Consti:ution of India 1950-Al't. 14-Medical College admission-Selection
of students /ro1n different universities with no unifonnity of standards--Reser11a-
:io11 of 5<'t:1~ 011 territorial basis-Validity-H'11t:rhcr vio/,uii·e of Art. 14.
•
•
Auiclcs 32 and 136-When root of' the r;riei'l.'liCr? and the fruit of writ are
nor ilulh·id1ud but cC9llective courts power is l1Tle cf a.f]innative structuring of
C
rt~drt.\S 10 nu1kc it n1eani11gful and sociall.v re!~l'(l.'!f-Dccf ,.innaf t,'1tidclir.es 10 be
_.-
E
F
G
gh·en.
The State of K.crala appointed a Comn1i&Sion to recommend which sections
oi the people required spe-.::ial tr ec.tn1ent under Art. 15 ( 4) having reganl to thl!ir
scdal and educational conditions.
That Commission
recommended
equitable
allJcali()fi of seals on the basis of educational b:ick\vardness o.f the -:Vlnlahar nrca.
Subgtantinlly foui.1ding itself on these
recommendations the State Government
evolved a formula, which by polling all applications for admission to the four
medical colleges in the state, one cons.olidated list was prepared and c;indidate,s
\Vere selected strictly
ac,..::ording to the marks secured by thenl.
This schen1~ having been stn1ck down by the High Court, a fresh exp'ert committee was appointed to cxarnine the quo 111odo of admissions to medica.l colleges.
'fh:e Government on the basis of these recommendafons decided that seats available for the nledical course might be distributed for the students of the two
Uni1:crsities of Kcrala and Calicut in the ratio of the candidates registerl!d for
the pre-degree 21nd B. Sc. course in them.
In a writ petition under Art. 226 the High Court held that the
~...:h'en1e of
selection for admission to the medical colleges on on assessment of inerits of
students drawn from different universities with no uniforn1ity of standards
is
obje<."tionabl'e and the linknge of the division of seats \Vith the registered studentstrength of the universities bears no nexus :ind is Yiolative of Art. 14 of the
Constitution.
On the question of the validity of the scheme of selection for admission to the
medical roJleg'es.
J!ELD : 1. Current conditions warrant the classification of student comn1unity on the Zonal basis-not as a legitimation of endless perpetuation but a9' a
transient panacea for a geo-human handicap
which the State
must actively
strive to undo. f980 E]
2. 1he principle of reservation with weightagc for th,,: geogrnphical area of
the t1lalabar district is approved. [980 G]
H
3. The reasoning of the High Court that ther'e is such substantial difference
iR the pre-degree courses and evaluations bet\vecn the sister univers-ities within
the same State that the breach of Art. 14 by equal treatment of the nut·rks nn-
-~
~
,
~
'
~ ~
..
I
' ' '
~
;'.'::'.
. Ii
\-
••
'
•
KE!b\LJ! v. ROSHANA
97 !j
·eqillilty secured by the examinees ifi the !>Vo U11itetsi1ies may be spelt out.
A
Evet'f inctmsequentilll differentiation between two things does not cortstitute the
. viCe or di:sctln'llnatfo .. 1, if lzm clubs them together igr.oring vanial
varittnces.
Atlitle l 4 is not a voodoo which visits. wi h invalidation every executive or
regWahYe fu:rion of things or categories where there are no pronounced inequali ..
tiCS. Matbem•tical equality is not the touchstone of constitutionality. [983 E-FJ
St.W of Jammu & Kashmir v. Triloki Nath Khosa & AllT. [1974] 1 SCC 19
B
at 42; referred to.
4. A latge latitude is allowed in this area to the State to classify or declaasify
based ()fl diverse considerations of relevant pragmatisn1 and the judiciary should
IIOl "nlllb. in" Where the executive vatily treads.
[984 A]
5. Many colleges are run by the State or institutional rnanagement9 where
pre-degree or degree courses are undertaken.
The teachers move from
one
university ju1hdiction to the o_ther, the teaching materi2J is. inevitably of a, like
naturt, the sut:jects taught must ordinarily be :ilik.!. The ~·xaminers are ustinlly
dra\\·n from \\'ithin the s· ate or neighbouring States.
Even the coinpositio:n ot
the &el'idetttit bodie~ in the two universities may have common members.
The
Uuivetsity Act& themselves are sub5tanti<•lly similar. To surmise discrimination.
from j:los&ibilities is alien to the forensic prOC'!~5 in the <:!Jsence ot bard facls~
Grrus dtvcrgenc~ exist among Universities affeCting the quality of the teaching
and the marking, the anomalies of grading and the absurdity of. equating the end
producf on the blind r;;sumptic•.1 that the s.ame marks mean the same excellence.
But not glib surmises but oolid facts supply the sinews of discriminatory inequality
or equality.
Some backward universities and colleges have degenerated into
degree-'lealers bringing rapid discredit to Indian Academic st~1.tu'i. [984 D-F]
6. The vagarious element in marking aud moden:.~ion of marks may be a
fact of Jife, but too marginal to qualify for substantial difference unless otherwise
made 011t
Indeed, there may be differeoces among_ the coileges under the same
University, among the examiners in the Siame University. Such fleeting factors or
e9hemerail differences cannot ·be the solid foundation for a subs·antial differentiation Whi~h is the necessary pre-condition for quh~h:ng an executive or legislative
. act as too discriminatory to satisfy the egalitarian essence of Art
14.
[984 H-985 Al
.
7. The functional validation of the writ jurisdiction is an appropriate cXMni·
nation of tbe subst.:1.ntiality of the alleged di-sparity. [985 BJ
8. The corner-stone of classification adopted for medical adrnissioos by the
Government was University-wise allocation. By itself, this approach had constitutional sanction. r986 c1
D. N. Chane/la/a v. State of Mysore & Ors. etc. [1971] Supp. SCR 608; relied
on.
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9. TI1e discriminatory vice, if University-~·ise classification rrnd c:on<ieou-Cntial
cllocation of seats were resorted to, was pressed therein but repelled. The fundamental 'educational_ realities and rCSuitant resolution of the legal imbro~fio are
fnatru~th·ely presented therein, which have- spedi\1 relevance to the ins+ant case
~
the social facts, con&titutional cont_rontations and administrative an.11Wem
H
in !lie Keraln and Karnataka litigations are similar .. [986 J), 986 H-~~7 .A]
6-"H9 BCI179
976
SUPREME COURT· REPORTS
(1979} 2 S.C.R.
A
10. 1he injection of the University-wise studc.nt strength is drawing_ W.," red·
herring across the trail-an irrelevance that invalidates the scheme. Tl;lere .is no
, nexus between the registered student strc.'.1gth and the seats to be allotted. The
fewer the o.Jlleges the fewer the pre-degree or degree students. And so, thC linkages of the division of s'cats with the registered student strength would make au
irrational inroad into the University-wise allocation. Such a formula would be
a punishment for backwardness, not a promotion of the advancem'ent.
The
8
discriminatory paring down based on unreasoa cannot be upheld. [990 G-H]
c
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11.
La~ is not unimaginative, especially in th'e writ jurisdiction where res~
ponsible lusti~e is the goal. The court cannot adopt a rigid attitude of negativity
and ~it back· after striking down the scheme of Government Jeavin& it to the
helpless Government caught in a crisis to make-do as best as it may, or throwing
the situat:on open to agitational chaos to find a solution by demonstrationa in the
streets and \\Drse. Jn the instant case unnble to stop with merely declaring that
the scht-me of admission accepted by Government is ultra vir~s and gnmting
the relief to the petitioner of admission to the medical colleges, the need for
controlling its repercussions calls for judicial response.
[991 H-992 A]
12. An incisive study of the exercise of the writ power in India may reveal
that it limits its actioruf by quashing or nullifying orders proceeding on a viola·
tion of law, but stops short of a reconstruction whereby a valid scheme may
replace a void project.
This is symptomatic of an obsolescent aspect of the
judicial process, its remedial shortcomings in practice and the need to innovate
the n1eans, to widen the base and to organise the reliefs so that -the Court
actualise.~ sr>eial justice even as it inhibits injustice. [978 A-B]
13. This community perspective of the justice system explains why the Court
bas resorted to certain unusual directions ood bas s-haped the ultimate com~
pl ex of orders in thes'e proceedings in a self ~acting package.
Chronic social
disability cannot be amenable to instant administrative surgery and law. 6hall
not bury its head, ostrich fashion, in th'c sands of fiction and assume equality
where the opposite is the reality.
[978 C, 980 CJ
14. The rule of law runs close to the rule of life and where societal. life,
as between one part of the State and another, is the victim of die-hard disparities, the constitutional mandate of equal justice under the law responds to
it pragmatically and permits classification geared to eventual equalis&tion.
!'80 DJ
J.5, The writ of this Court binds the parties on record who must abide by
the <lirections issued necessitated by the exigency of the situation and the need
to do justice. [993 DJ
G
16. 'fhe court system belongs to the people and must promote constructive
justice; and aU institutions, including the Governments and Universities~ likewise
belong t"' the people.
This commitment is the whet-stone for doing j\istice in
the wider context of social good. [993 B-F]
i7 .. Leaving the Judgment of the High Court in the conventional fofm of
· merely quashing the formula of admis~ion the remedy would have &gg:raVatecl the
'.malady; confusion, agitation, paralysis. The root of the grievance· and the fruit
n . pf. the writ are riot individual but co1Iective and white the "adv'ersaty system"
makes the Judge a mere umpire, traditionally speaking, the co'mmunity orientation of the judic;al function, so desirable in the Thtrd WOrld remMial ·juri!r
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KERALA v. ROSllANA (Krishna Iyer, !. )
9 7 7
a.....}
prudence, transforms the courts' power info affirmative structuring of redress so
·A
at to make it personaJly meaningful and soci<!Jly relevant.
Frustration of in-
,
•
. validity is part of the Judicial duty; fulfilment of legality is
complementary,
. nm principIC of affirmative action is within the court's jurisdiction under Art.
1.36 and Art. 32 and the present cases deserve its exercise. Decisional auideline• giver., [994 B-F]
CivIL APPELLATE JURISDICTION : Civil Appeal No. 2297 of 1978.
B
Appeal by Special Leave from the Judgment and Order dated
13-11-78 of the Kerala High Court in O.P. No. 3239/78.
AND
WRIT PETITION NO. 4705/78
M. M. Abdul Khader, Adv. Genl. for Kerala, V. J. Francis and
Mustafa K. Rowter for the Appellant in C.A. 2297 /78 and Respondents in W.P. 4705/78.
P. V. Govindan Nair, N. Sudhakaran and Mrs. Baby Krishnan for
the Petitioner in W.P. No. 4705/78 and Respondent No. 1 in CA
2297/78.
Dr, V. A. Sayid Muhammad, S. K. Mehta, P. K. Shamshuddin,
P. N. Puri and E. M. Sarul for the Interveners .
A. S. Nambiar for Respondent No. 3 in CA 2297 /78.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-Thc dynamics of the writ jurisdiction and the
potential for affirmative court action, as part of remedial jurisprudence,
constitute the key thought which animates the ultimate decision and
direction we give in this couple of cases which have come up by
Special Lellve and under Art. 32 to this Court, aware as we are of a
host of like proceedings which pend in the High Court.
Tho State of Kerala is the appellant in the civil appeal and 1st
rei;pondent in the Writ Petition but the collective litigation springs from
a traditional type of action and typical kind of relief granted in exercise
of its writ jurisdiction by the High Court striking down a transitory
scheme of adriiission to the medical colleges of the State evolved by
the Government but invalidated by the High Court on the ground of
discrimination in the distribution of seats among the eligible student$
drawn from two disparate regions of the State. Of course, the instant
repercussion of the dC£isiQn is apt to be confusion in the admission .
to the academic courses which
have hardly commenced and
this desperate situation has driven the Government to this Court seeking reversal of_ the Judgment under appeal.
Law promotes order, not
anomie.
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A
B
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978
SUPREME COURT REPORTS
[ 1979] 2 S.C.R.
Any incisive study of the exercise of the writ power in India may
reveal that it limits its action t<l' quashing or nullifying orders prOCtleding· on a violation of law, but stops short of a reconstruction whereby
a valid scheme may replace a void project.
This is no reflection on
the High Court's ruling but is symptomatic of an obsolescent aspect of
the judicial process, its remedial shortcomings in practice and the need
to innovate the means, to widen the base and to organise the reliefs
so that the court actualises social justice even as it inhibits injustice.
This community perspective of the Justice System explains why we
have resorted to certain unusual directions and have shaped the ultimate
complex of orders in t_hese proceedings in a self-acting package. With
this exordium we proceed to narrate briefly the necessary facts and
developments revelatory of the course of events and the cause of action,
the impact of the High Court"s judgment and the compulsions which
have brought the State in appeal t<l' this Court.
The Kerala State, notwithstanding its striking demographic, cultural, linguistic and political integrality and educational advance, has
certain histQrical hangovers of academic disparity and devel<l'prnen~
maldistribution which have survived for two decades as this case testifies.
We are not concerned with the etiological enquiry into this
malady but recognise it as a reality since the authentic materials from
Commission reports and prior rulings of the High Court concurrently
so establish. B.roadly speaking, this 'composite' State may be dichot<l'mised as Travancore-Cochin and Malabar regions woven into ooe·
fabric by the States Reorganisation Act, 1956. Gaping disparities of
development cannot be wished away by political fusion into ooe State
and determined efforts at equalisation of human conditions, economic
and cultural, alone lend living validity to geo-political homogeneity.
Malabar being admittedly laggard in the educational field, the State
endeavoured to wipe out this weakness by starting or supporting new
colleges in this neglected segment; and one such institution was the ·
medical college at Calicut.
Indeed, the drive to upgrade the educational status of this backward !egion persuaded the State to set up
the Calicut University to which were affiliated all the colleges in that
CTndrella area, including the Calicut Medical College.
An adjoining
district, Trichur, was also tacked on, for convenience, maybe.
The cynQ1;ure of attention in this litigation is the scheme c4 admission to medical colleges in the State; and so we may adjust the forensic
IL lens to focus on the struggle for seats in the four medical c<l'ilege&
in the State-all run by Government but providing for five hundred and
odd students, as against several thousands of applicants. This 'musical
+.
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KERALA v. 11.0SllANA (Krishna Iyer, J.)
979
chair' situation naturally led to many qualified claimants beiug rejected
A
and litigative adventures being inaugurated on grounds of discrimination. One such \\Tit petition having been allowed, the State has, by
specialleave, come up in appeal.
The points raised in the writ petition
under Art. 32 are identical .
A sensitive appreciation of the grievance successfully ventilated
B
by the writ petitioners in the High Court is possible only if we unfold
a fuller conspectus of the facts.
Cognizance of some essential ci.rcwnstances is necessitous as the first step.
There are three Universities
in the State but we are concerned only with two-the Kerala and the
Calicut Universities..-to which the four medical colleges are affiliated,
three of which are unde;r the jurisdiction of the first and the fourth
C
·under the latte<r.
Broadly speaking, the latter caters to the academic
requirements of the Malabar segment plus a neighbouring district and
the former to the rest of the State.
The Malabar area has been regarded as notoriously backward
from the point of view of collegiate education so much so, the number
-0f colleges which provide pre-degree courses necessary by way of
qualification for entrance into the medical colleges, are relatively fewer
and, on the contrary, the remaining part of the State thanks to many
factors, has been on a higher level, with colleges more numerous and
pre-deg;ree students more prolific.
Geographic justice, a component
of social justice, has to take note of these comparative imbalances.
Rightly, therefore, the State Government, based on certain reports of
Commissions, con•idered the two territorial divisions as separate units
:and regulated seat allocations to medical colleges in the State on an
equitable basis.
The social thrust of the classification, based on geographical dissimilarities, was the core factor in formulation
of that
·scheme of admissions.
This principle found favour with the High
Court in its Ful! Bench ruling in Rafia Rahim's( 1) case.
While over
the 'years, amelioration produced by State Plans has reduced the degree
·of backwardness, the fact remains that substantial equalisation of opportunities between the two areas is a "consummation devoutly to be
wished." We agree with the High Court that
"in considering the question of the educational backwardness of a particular class of people. or a particular tract of
territory of this State, we cannot forget that the evolution of
human society and its march from backwardness to progress
must essentially be a slow and gradual process. It is not as if,
by a Government or executive fiat, a class of people or a bit
of territory has been condemned to backwardness, and with
D
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(I) State of Kerala v. Rafla Rahim, 1978 KLT 369.
A
B
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G
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980
SUPREME COURT REPORTS
[1979] 2 s.c.R.
the lifting of the ban by effi.ux of time or otherwise, they automatically spring back into a progressive or forward class of
people or tract. It is useful to recall the observations made
by this Court in State of Kerpla v. Jacob Mathew ( 1964 KLT
298).
"9. In these regions of human life and values the clear-cut
distinctions of cause and effect merge into each other.
Social backwardness contributes to educational backwardness; educational backwardness perpetuates social
backwardness; and both are often no more than the
inevitable corollaries of the extremes of poverty and
the deadening weight of custom and tradition."(')
If we may add, chronic social disability cannot be amenable to
instant administrative surgery and Jaw shall not bury its head, ostrich
fashion, in the sands of fiction and assume equality where the opposite
is the reality.
The rule of law runs close to the rule of life and where societal life,
as between one part of the State and another, is the victim of die-hard
disparities the constitutional mandate of equal justice under the law
responds to it pragmatically and permits classification geared to eventual equalisation.
We,
therefore, agree with the
High Court that
current conditions warrant the classification of the student community
on the Zonal basis-not as a legitimation of endless perpetuation bui
as a transient panacea for a geo-human handicap which the State mnst
actively strive to undo.
In Kerala, as in some other States, reservation policies of Governments and 'equal protection' pronouncements of courts have chased
each other. A happy harmony among the great instrumentalities for
accomplishment of constitutional goals by complementary action is the
desideratum for developing countries, if we may say so respectfully.
The principle of reservation with weightage for the geographical area
of the Malabar District has our approval in endorsement of the view Of
the High Court. An earlier decision of the Kerala High Court ( 1964
KLT 298) i,:ave rise to a Commission appointed to recommend whLh
sections of the people required special treatment under Art. 15(4) of
the Constitution, having regard to their social and educational conditions.
That Commission, inter alia accepted the educational backwardness of
the Malabar area and recommended equitable allocation of seats on that
footing. Substantially founding itself on these recommendations but
modifying them in some measure Government hammered out a formula,
a basic feature of which was pooling together the applications for admission to the four medical colleges in the State in one consolidated list
(I) 1978 KLT 369 at 387.
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KERALA v. ROSHANA (Krishna Tyer; J.)
98 I
;
and selecting students for medical courses strictly according to the matks
secured-of course, making allowance for seats reserved for a limited
percentage of students from outside and the customary bonus of rescrva..
tion of seats for Scheduled Castes, Scheduled Tribes and backward
classes. This part of the 'selection calculus' is beyond cavil before ns,
as the nation with all its social engineering boasts and all its tumultuous
bungling, is distances away from human justice through human law.
The rough and tumble of academic life, based on the Pooling System
seemed to run smooth for some years when a new attack was mow1ted
on it in the High Court with constitutional artillery from the inexhaustible armoury of Art. 14. A Full Bench hit the scheme fatally this time,
not with the familiar hut fruitless archery of geographical discrimination
hut with the weaponry of 'reverse discrimination' in a different manifestation.
TI1e strategy of attack was neatly expressed by the learned Single
Judge whose judgment on this point was endorsed by the Full Bench.
Discrimination was discovered by the Court in attributing parity to !he
marks of examinees in pre-degree and degree courses of the Calicut
University with those of the candidates of the Ke.rala University.
The
Full Bench framed the question, tell-tale fashion :
"The question is not whether one_ University is superior
to the other or maintains higher standards in the matter of
syllabus, examination and evaluation than the
other, hut
whether the operation of different Universities with varying
standards of their own is productive of inequality.'('}
The descriptive presentation of this discriminatory facet was given
by the learned single Judge in the same case :
"To compare the marks obtained by students of two different Universities valued by different examiners on answer
papers of different patterns may not he the proper mode of
determining comparative merit.
Even in the case of candidates appearing for the same examination in the same university tl1ere may be a cause for complaint in the matter of marks
awarded to the candidates. Quite often revaluation has shown
that at least in some cases there is justification for the plea for
such revaluation. Different examiners value the answer papers
and though there is a Chief Examiner his role is quite limited.
But these are inevitable and the marginal errors may have to
be ignored. By and large the comparative merits of the candidates will be reflected in the marks they obtain in the exami-
( l) 1978KLT369at375
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n:;ition to which all candidates are uniformly subjected to. B11t
the same could not be said in the case of examinations condllCted by two or more Universities.
It is well-known that solill'-
times question papers are tough and sometimes valuation is
liberal. Quite of'en valuation is guided by the percentage of pass
expected in an examination.
Moderation is also resorted to.
While all these may work uniformly on all the candidates appearing for the same examination in the same University that
could not be the case with regard to the candida·e·s appearing
for the same qualifying examination from another University
writing different papers, which are valued by a different set of
examiners.
When comparison is between two candidates passing out from two Universities taking respective examinations
of the Universities the equation of candidates in matters where
near-accuracy is called for becomes difficult.
May be the
examinations
are
similar
and
the
valuation also
is
similar, but the other factors cannot be ruled out.
If admissions to courses like medicine and engineering is to be on the
basis that the best talent is to be preferred, where students from
more than one University passing the qualifying examination
have to compete some method other than comparing their
marks shuu~d be devised to determine
their
comparative
!alent."( 1)
The Full Bench agreed with this anathematization of equal treatment of 'unequals' and voided the Selection Process. The Court, with
helpful realism, concluded by adding a positive guideline to the decla-
. --'-,
ration of nullification : (')
"As a result of our discus'sion, we are of the opinion, that
the scheme of selection for admission to the Medical Colleges
on an assessment of merit of students drawn from different
Universities with no uniformity of standards is objedonablc
and violative of Art. 14 of the Constitution.
We grant a declaration to the writ-petitioner to that effe,st.
We deny effective relief to the writ-petitioner on account of non-joinder of
the selected candidates, and the fu'ility and ineffectiveness of
upsetting the selections and directing fresh admission at
this
stage.
We consider that the best ·scheme of selection in the
circumstances would be th!' method of selection of candidates
by holding a uniform Entrance Examination to se<:ure
(I) 1978 KLT 359 at 371-372
(2) Ibid, 382.
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KERALA v. ROSH/.l<A (Krishna Tyer, J.)
983
mufQmlity of stam,lards, as .recommended by the Indian
Medical Council-vide El!.ts.
PS and PS-and as endorsed
by the University authorities (vide Ex. P7). We direct the
State Government to forthwith devise a scheme of selection
by holding such an Entrance Examination and publis? the
same within three months from today so that the candidates
wishing to apply for selection to the Medical Colleges of this .
State for the next academic year, have due notice of the
scheme of selection. The object being to secure uniform'ty of
standards for assessment and evaluation of students drawn
from different Universities, our directicrn should not
be
understood as unalterably and inelastically fixing the limits
for Governmental action.
Methods for securing un'.formity
of syllabus, pattern of examination, and mode of evaluation
in the different Universities, would well be within the province of the Government to undertake. We allow this writ
appeal to the limited extent indicated above."
In •he end, the writ petitioner won the battle but lost the war, for
·she got an abstract declaration that her exclu5ion was invalid but was
·denied the concrete direction to be admitted into the college.
We are not impressed much with the surmise which colours the reasoning of the Full Bench and •he learned S·ingle Judge that there is such
substantial difference in the pre-de!!Jee courses and evaluations between
the sister •rniversities w;thin the same Stole that the brearh f'f Art.
14
by equal treatment of the marks unequally secured by examinees i:l the
two universities may be spelt out. It is trite law that every inconsequential differentiation be•ween two things does not constitute the vice
of discrimination, if law clubs them lo!!ether i"110ring venial variances.
Art. 14 is not a voodoo which visits with invalidation_ every execu'ive
or legislative fusion of things or categories where there are no pronounced inequalities.
Mathematical equality is not the touchstone
of constitutionality. This Court in Triloki Nath Khosa(') cautioned
"Mini-classifications based on micro-distinctions are fa1se
to our egalitarian faith and only substantial and straightforward c' assifications plainly promoting relevant goals can have
constitutional validity.
To overdo classification is to undo
equality."
In the same ruling there was a caveat entered by Oiandrachud, J
(as be then was) against "a charter for making minute and microcosmic
" ~
q) ~tattof Jammu & Kashmir v. Tri/oki Nath Khosa & Anr. [1974) I SCC 19 at 42.
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classifications."
What is more, a large latitude is allowed in this area
to the State to classify or declassify based ·on diverse considerations of
relevant pragmatism, and the judiciary shonld not "rush in" where the
executive warily treads.
The core question is whether there is such
substantial differentiation between the two universities in regard to the
pre·degree or degree courses and system of examina·ions as too glaring
to imperil the equal protection clause.
The presumption is in favour
of the vircs of legislative and executive action where Art. 14 is the basis
of challenge.
We see no factual disparities disclosed in the Full Bench
ruling to reach the result of substantial difference in the syllabi, in the
pattern of examinations, in the marking systems or in the choice
of
the examiners so as to warrant invalidation on account of equal regard
being accorded to the marks secured by the examinees from the two
universities. We cannot forget that many colleges are run by the State
or institutional managements where pre-degree or degree courses are
undertaLen.
The teachers move from one university jurisdiction
to
the other, the teaching· material is inevitably of a like nature; the subjects ·
taught must ordinarily be alike.
The examiners are usually drawn
from \vithin the State or neighbouring States.
Even the com~ition of
the academic bodies in the two universities may have common members.
The University Acts themselves are substantially similar.
To surmise
discrimination from possibilities is alien to the forensic process in the
absence of hard facts.
We are aware that there arc Universities and
Universities, that gross divergences among them exist affecting the quality of the teaching and the marking, the anomalies of grading and the
absurdity or equating the end products on the blind assumption that the
same marks mean the same excellence.
But not glib surmises but solid
facts supply the sinews of discriminatory inequality or equality. Going
by vague reports, some backward universities and colleges have degenerated into degree-dealers bringing rapid discredit to Indian academic status.
The Indian Medical Council Act, 1956 has constituted the Medical
Council of India a's an expert body to control the minimum standards
of medical educa'ion and to regulate their observance.
Obviously, tht'
high-powered Council bas power to prescribe the minimum standards of
medical ed{1cation.
It has implicit power to supervise the qualifications
or eligibility standards for admission into medical institutions.
Thus
there is an overa11 invigilation by the Medical Council to prevent
iubstandard entrance qualifications for medical courses.
·The vagarious element in marking and moderation of marks may be
a fact of life, but too marginal to qualify for substantial difference unless
otherwise made out.
Indeed, there may be differences among the
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KERALA v. ROSHANA (Krishna Iyer, I.)
985
colleges under the same University, among the examiners in the same
nniversity.
Such fleeting factors or ephemeral differences cannot
be
the ~olid foundation for a substantial differentiation which is the necessary pre-condition for quashing an executive or legislative act as
too
discriminatory to satisfy the egalitarian essence of Art. 14. The functional validation of the writ jurisdiction is an appropriate examination of
the substantiality of the alleged disparity. We do not, however, proceed finally to pronounce on this point with reference to the two universities since nothing is available. before us, or, for that matter, was before
the High Court to warrant a fair conclusion on the issue.
We are persuaded to make these observations for future guidance, so .that academic
scheme!! may not be struck down as arbitrary or irrational save where
some sound basis has been laid.
We get back to where we left off before this divagation into the Full
B.ench decision's ratio on discrimination as between the two universities.
The sole question that survives is of alloca'ion of 'seats on a universitywise classification.
Following upon the Full Bench decision
which
struck down the pool scheme of selection, a constitutionally viable process had to be evolved.
Government, therefore, appointed a fresh expert committee to examine and report the quo modo of admissions
to
medical colleges in the light of the directives contained in the Full Bench
decision.
Two solutions were seriously considered by the Committee,
namely ( 1) .a common entrance examination such as is in vogue in many
SUI.tea and has the approval of the Medical Council of India; and
(2)
the •tandardization of the syllabi uiiiformly for the two universitie's and
the elimination of different yardsticks in regard to the setting of question
papers, marking systems and the like.
The first one, though the
better, was given up as productive of public and student resistance. However wise a measure may be, its viability depends on its acceptance by
the consumers, namely, the student community and the parent community.
Agitational opposition or determined dead-locking may make
it unwise to inflict it on an unwilling constituency.
Of course, by
a
gradual process of enlightenment the wisdom of such a measure may
dawn.
What is rejected to-day may be greeted tomorrow.
The Committee jettisoned the first proposal of a common entrance examination
~tly scared of its impracticability at the moment. So it opted for the
second, namely uniformity of standards, frnm the formulation of syllabi
upto assignment of marks at the el!1aminations.
Surely either of the
proposals is an effective answer to Art. 14. Even so, when the Committee's recommendations were placed before the Government it rellected carefully on the pragmatics of implementation and reached the
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conclusion that it would take some· time to fulfil the pre-requisites to
give effect to that formula. Time runs, university applications rush Ui,
arlmissions must begin, courses must start and administrative paralysis
in decision-making is no alibi.
Implementational dilatoriness cannot
stall the flow of medical education. Caught in this crisis, caused, in
part, by the court ruling, Government fabricated a quick scheme of
admission to the four medical colleges, which, again, bas now been
struck down by the High Court resulting in the appeal before us.
The corner-stone of classification adopted for medical admi<sioM by
the Government this time was uuiversitywise allocation. By itself, ths
approach had constitutional sanction, having regard to the ratio in Chanchala' s case(').
The ratio in Chanchala conclndes the dispute in this ca·se.
'The discriminatory vice, if university-wise classification and consequential allocation of seats were resorted to, was pressed but repelled.
She lat, J.
speaking for the Court, formulated the contention thus : (')
"The next contention was that r.9( 1 ), which pre·scribes
university-wise distribu'.ion of seats results in discrimination for
it lays down a classification which is neither based on any inte'ligible differentia, nor has a rational nexus with the object of the
rules.
The argument was that although there i"s one selection
committee for all the Government medical colleges in all the
three universities and for the said 59 seats in private colleges,
students passing from college·s affiliated to a parlicu'ar university arc first admitted in Government medical colleges affiliated
to that university and only seats upto 20% in each of such
medical colleges can be allotted to outsiders in the discretion
of the committee.
The result is that a student having higher
marks than the last admitted student is deprived of a seat only
for the reason that he bad passed his P.U.C.
examination
from a college affiliated to another university.
According to
ccunsel. such a classification has no rational basis and has no
reasonable nexus with and is in fact inconsistent with the very
object of cs<ablishment of Government medical
colleges,
namely, to train in medicine the most meritorious amongst the
candidates seeking admission."(')
The fundamental educational realities and resultant resolution of the
legal imbroglio are instructively presented in Chanchala's case, which
(I) D. N. Chancha/a v. St te of Mysore & Ors. etc. [19711 Supp SCR 608.
(2) Ibid pp. 617-618.
(3) [19711 Su.op. S.C.R. 608 at 619-€21.
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KERALA v. ROSHANA (Krishna Iyer, J.)
987
haV() special relevance to our case because the social facts, constitutional
confrontations and administrative answers in the Kerala. and Karnataka
litigations are similar. Shelat J. observed : (')
"The three universities were set up in three diffuent places
presumably for the purpose of catering to the educational and
academic need~ of thdse areas.
Obviously one university foc
the whole of the State could neither have been adequate nor
foasible to satisfy those needs.
Since it would not be possible
lo admit all candidates in the medical colleges run by the Government, some basis for screening the candidates had to be
set up.
There can be no manner of doubt, and it is now fairly
well settled, that the Government, a·s also other private agencies, who found such centres for medical training, have the
right to frame rules for admission so long as those rules are not
inconsistent with the university statutes and regulations and do
not $uller from infirmities, constitutional or otherwise.
Since
the universities are set up for satisfying-the educational needs
of different areas where they are set up and· medical colleges are
es'ablished in those areas, it can safely be presumed that they
also were so set up to ·satisfy the needs for medical training -0f
those attached to those universities.
In our view, there is
nothing undesirable in ensuring that those attached to such
universities have their ambitions to have training in spec'alised
subjects, like medicine,, satisfied through colleges affiliated to
their own universities.
Such a basis for selection has not the
disadvantage of districtwise or unitwise selection as any student
from any part of the state can pass the qualifying examination
in any of the three universities irrespective of the place of his
birth or residence.
Further, the rules confer a discretion on
the selection committee to admit outsiders upto 20% of the
total available seats in any one of these colleges, i.e. those who
have passed the equivalent examination held by any other university not only in the S•ate bnt also elsewhere in India ....
The fact that a candidate having lesser marks might obtain admission at the cost of another having higher marks from another
university does not necessarily mean that a less meritorious
candidate gets advan'age over a more meritorious one.
As is
well known, different universitie& have different standards in
the eliaminatiom held by them.
A preference to one attached
to< one university in its own institutions. for posl-8faG!uate
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(I) [1971] Supp. S.C.R. 608 at 619-621.
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technical training is not unco=on .....