# • ' • CHARLES K. SKARIA v. DR. C. MATHEW - **Citation:** [1980] 3 S.C.R. 71 - **Court:** Supreme Court of India - **Decided:** 1980-03-19 - **Case number:** Civil Appeal Nos. 641-644of 1980 - **Bench:** V. R. Krishna !Yer, R. S. Pathak - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/charles-k-skaria-v-dr-c-mathew-8208 - **Pages:** 22 ## Headnote 71 A Constitution of India 1950, Articles 14 and IS-Admission to Post GraduB ate degree and diploma course in medicine-Reservation Quota of 2% of total number of seats for candidates from entire country minus Kera/a-Such reservation-Whether valid. The Kerala State runs three medical colleges with post-graduate degree and diploma courses in two of its Universities (Trivandrum and Calicut). The selection is made from among candidates guided by the prospectus issued in this behalf and the Selection Committee makes the selection. The principal of the C. Medical College, Trivandrum., being the convener thereof. A notification inviting applications was published in the Gazette dated 27-2-1979 wherein the last date for receipt of application for the post graduate course in ophthalmology was set down as March 31, 1979. Candidates were considered on the basis of their merit, marks being allotted for various attributes including military service, membership of the Scheduled Castes and Tribes, and holding of medical diplomas. The competitive marks provided for 10% to diploma holders in the D selection of candidates to M.S. and M.D. courses in the respective subjects or sub-specialities. The Kerala State provided a quota of 2 % of the total number of seats for candidates from the entire country minus Kerala. While clause 12 of the prospectus fro\Vned upon late and/ or defective applications, clause 13 provided that attested copies of the statement of marks E at each professional examination and those of other documents should be attached with every application. The Special Secretary to the State Government in a communication to the Selection Committee informed that as the result of the Diploma Course conducted by the Medical College, Trivandrum would not be available before the la~ date for the receipt of applications, 10% weightage may be given to the concerned applicants, subject 'to the condition of production of the Diploma Certificate before finalisation of the selection to the post-graduate course. The number of seats for the post-graduate degree course in Ophthalmology available for the year 1979-80 was six of which one belonged to Schedule Caste/Scheduled Tribe candidate, another to a tutor working in a medical college. The State was left with four seats. In the Writ Petition, the High Court held that one of the students, Dr. Gopinathan Nair, was so meritorious that none challenged his admission, and that there was no inherent lacuna or illegality in the communication Ex P 3 of the Special Secretary to the Selection Committee. Jn appeal, the Full Bench of the High Court, allowed the appeal holding that Ex P 3 cannot have the effect of over-riding the effect of clauses 12 and 13 of the prospectus and quashed the selections made on the basis of the rank list for admission. In the appeals to this Court on the question whether the 2% reservation for the entire country's candidate population from outside Kerala in the "Open Merit Pool", was valid, F G H A B D 72 SUPREME COURT REPORTS [1980] 3 S.C.R. HELD : l. Principled policy, consistent with constitutional imperatives (Articles 14 and 15) must guide admissions to courses in higher professional education but Governments and Universities, not infrequently take liberties with this larger obligation under provincial pressures and institutional compulsions and seek asylum in reluctant pragmatism mindless of hostility to oonstitution · a1ity. Nothing is more harrowing for the Court, with increasing litigation and thereby forced in to slow motion and unwilling to intervene in an administrative area than to hamper the stategic stages of educational prcr..ess like admission andexaminations, but the Justice System cannot run- away from hea.ring and deciding questions of unconstitutionality, especially when educational authorities shape policies, change rules and make peace with the crisis of the hour, ignoring the parameters· of the National Charter. Mistrust of Government, is viola· tive of ## Text _Characters 0–39,861 of 59,604. This is a partial read: ask again with offset=39861 for what follows._ • ' • CHARLES K. SKARIA v. DR. C. MATHEW March 19, 1980 [V. R. KRISHNA !YER AND R. S. PATHAK, JJ.] 71 A Constitution of India 1950, Articles 14 and IS-Admission to Post GraduB ate degree and diploma course in medicine-Reservation Quota of 2% of total number of seats for candidates from entire country minus Kera/a-Such reservation-Whether valid. The Kerala State runs three medical colleges with post-graduate degree and diploma courses in two of its Universities (Trivandrum and Calicut). The selection is made from among candidates guided by the prospectus issued in this behalf and the Selection Committee makes the selection. The principal of the C. Medical College, Trivandrum., being the convener thereof. A notification inviting applications was published in the Gazette dated 27-2-1979 wherein the last date for receipt of application for the post graduate course in ophthalmology was set down as March 31, 1979. Candidates were considered on the basis of their merit, marks being allotted for various attributes including military service, membership of the Scheduled Castes and Tribes, and holding of medical diplomas. The competitive marks provided for 10% to diploma holders in the D selection of candidates to M.S. and M.D. courses in the respective subjects or sub-specialities. The Kerala State provided a quota of 2 % of the total number of seats for candidates from the entire country minus Kerala. While clause 12 of the prospectus fro\Vned upon late and/ or defective applications, clause 13 provided that attested copies of the statement of marks E at each professional examination and those of other documents should be attached with every application. The Special Secretary to the State Government in a communication to the Selection Committee informed that as the result of the Diploma Course conducted by the Medical College, Trivandrum would not be available before the la~ date for the receipt of applications, 10% weightage may be given to the concerned applicants, subject 'to the condition of production of the Diploma Certificate before finalisation of the selection to the post-graduate course. The number of seats for the post-graduate degree course in Ophthalmology available for the year 1979-80 was six of which one belonged to Schedule Caste/Scheduled Tribe candidate, another to a tutor working in a medical college. The State was left with four seats. In the Writ Petition, the High Court held that one of the students, Dr. Gopinathan Nair, was so meritorious that none challenged his admission, and that there was no inherent lacuna or illegality in the communication Ex P 3 of the Special Secretary to the Selection Committee. Jn appeal, the Full Bench of the High Court, allowed the appeal holding that Ex P 3 cannot have the effect of over-riding the effect of clauses 12 and 13 of the prospectus and quashed the selections made on the basis of the rank list for admission. In the appeals to this Court on the question whether the 2% reservation for the entire country's candidate population from outside Kerala in the "Open Merit Pool", was valid, F G H A B D 72 SUPREME COURT REPORTS [1980] 3 S.C.R. HELD : l. Principled policy, consistent with constitutional imperatives (Articles 14 and 15) must guide admissions to courses in higher professional education but Governments and Universities, not infrequently take liberties with this larger obligation under provincial pressures and institutional compulsions and seek asylum in reluctant pragmatism mindless of hostility to oonstitution · a1ity. Nothing is more harrowing for the Court, with increasing litigation and thereby forced in to slow motion and unwilling to intervene in an administrative area than to hamper the stategic stages of educational prcr..ess like admission andexaminations, but the Justice System cannot run- away from hea.ring and deciding questions of unconstitutionality, especially when educational authorities shape policies, change rules and make peace with the crisis of the hour, ignoring the parameters· of the National Charter. Mistrust of Government, is viola· tive of comity between instrumentalities and is not permissil,)le unless substanti!:lted by facts. Suspicion is the upas tree under whose shade reason fails and justice dies. High Court has thrown the academic year in post-graduate Opthalmology into disarray and even wastage. [74 F-H, 77 G-H] 2. Welfare-oriented judicial process must be constructive in its objective, must be geared to order as its goal and must pave the way for resultant contentment, avoiding negative writs which, in practice, prove to be congealing commands. [78 D-E} 3. In the instant case, the High Court, on the crucial question, has correctly stated the law regard denial of opportunity for 'outsiders' and consequ.ently found the admission to the courses all wrong, but through its judgment, has jettisoned students who are half-way through their courses and directed fresh admission.,. on new policies yet to be evolved, with little chance of any one geU.ing through the examinations or even admissions during this acaden1ic year. [78 E-F] F. 3. Whatever might be the passion for correct law and provocation on account of governmental indifference, the Court must use its power to correct error and promo_te order and not strike down an illegal error Without going forward to affirmative action which may minimise injury generally. The judicial process, in its creative impulse, must hesitate to scuttle, salvage wherever possible and destroy only when the situation is beyond retrieval. [79 D-E] . F 4. The scheme of reservation or a Paltry 2% for candidates in the whole country outside the two universities of the State has not been substantiated as a sufficient fulfilment of Articles 14 and 15. Fundamental rights of candidates do not depend on the grace of governments and Indians are not, aliens in their own motherland when asking for seats on the score of equal opportunity. A host of goCKi reasons may weigh with the state in formulating prefences, reservations and other cases of choice provided they do not outrage Arts. 14 G and 15, or promote the process of equalisation as a dynamic phase of equality. What is paramount is equal opportunity for each. [81 D-F] State of Kera/a v. V. M. Thomas, [1976] 2 S.C.C. 310 referred to. 5. Law in action being a healing art, the Court must strive to avoid driving out the students half-way through their course and to see that no costly seat for advanced studies in which the community as a whole has a stake is wasted. H 'fhe Court should not give up the search for alternatives. {82 E-F] 6. There is nothing unrea~onable nor arbitrary in adding 10 marks for holders of a diploma. But to earn this extra 10 marks, the diploma must be ' • • y . • r • CHARLES K. SKARIA V. C. MATHEW 73 obtained at least on or before the last date for application, nor later. Proof of having obtained a diploma is different from the factum of having got it. It is prudent to produce evidence of the diploma alongwith the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the secord. .A.cademic excellence, through a diploma for which extra marks is granted, cannot be denuded because proof is produced only later, yet before the date of acrual selection. The emphasis is on the diploma, the proof thereof subserves lhe factum of possession of the diploma and is not an independent factor. [84 D-F] 7. When a statute vests a public power and conditions the manner of exer. cise of that power then the law insists on that mode of exercise alone. It is unconcerned with that rule. A method of convenience for proving possession of a qualification is merely directory. Moreover, The prospectus itself permits government to modify the method. There is nothing objectionable with the government directive to the selection committee, nor in the communication to the selection committee by the university, nor even in their taking into consideration and giving credit for diplomas although the authentic copies of the diplomas \Ver~ not. attached to the application for admission._ [86 A-CJ 8. Much of hardship and harassment in Administration flows from overempha>;is on the external rather than the essential. The government and the selection committee rightly treated as directory (not mandatory) the mode of proving the holding of diplomas and as mandatory the actual possession of the diploma. The frustrating delay in getting copies of degree was by-passed by the State Government by two steps. Government informed the selection committee that even if they got proof or marks only after the last date for application:9 bnt before the date for selections they could be taken note of and secondly the Registrars of the Universities informed officially which of the candidates had passed in the diploma course. The selection committee did not violate any mandatory rule nor act arbitrarily by accepting and acting upon these step» £86 D-GJ 9. The three candidates who had been eventually admitted by the selection committee could not be ousted merely for the reason that the certificate of diploma had not been produced together with the application for admission. Nor, indeed, could government be faulted for issuing a directive to the selection committee that applications from students of the diploma Course could be considered sub-ject to the condition that they would "produce the. diploma certi· ftcate bef•re finalising the selection to post-graduate course". [87 A·B] 10. Though appellant No. 1 bas no legal claim to a seat, the overall circum- !tances. merit compassionate consideration and the Court directed. The Kerala University and the Indian Medical Council directed to permit hin1 to complete A B c D E F his ceur::e by adding one more seat, for this year only, to the ophthalmic degree course. Marginal adustments by increasing one seat more is possible without G injury to academic efficiency. [88 F-H] 11. Directed that the State of Kerala and the Principal of the Trivandrum Medical College, who is the convener of the Selection Committee, as \.V'ell as the two universities concerned,. admit into the post-graduate ophthalmology cemse Dr. Naomi and Dr. Gopal Krishnan for this year. The two applicants will be accorded admission on their reporting within ten days. [91 E-D J H -Stote of Kera/a v. Kum. T. P. Roshana [1972] 2 SCR 974 : A. Pcriakaruppan v. State of Tamilnadu [1971] 3 SCR 449 referred to. 6-189 SCl/80 74 SUPREME COURT REPORTS [1980] 3 S.C.\l.. A 12. The 2% open seats for the candidates from all the Universities of India B c D F G H outside- Kerala runs counter to the constitutional directive of equal opportunity and the preambuler emphasis on national integrity. The State will do well to fashion a formula in terms of the ~idelines given by this Court in Dr. lagdish Saran's v. Union of India and others, [1980] 2 S.C.R. 831 [91A-G] CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 641-644of 1980. Appeals by Special !Leave from the Judgment and ·order dated 10-12-1979 of the Kerala High Conrt No. W.A. No. 22/79, W.A. No. 245/79 and O.P. No. 1586/79. P. Govindan Nair and:A. S. Nambiar for the App,llants in C. A. No. 641 to 643/80. M.M. Abdul Khader and V.J. Francis for the App,Uant in C.A. No. 644/80.; T.S. Krishnamoorthy Iyer and N. Sudhakaran for the Respondent No.1 in C.As. Nos. 641 to 644/80.) Tne Judgment of the C JUrt was delivered by KRISHNA IYER J., Tiie universities in the country are often among the contributaries to the flood of litigation in the higher courts Of the country. rais pathological condition, to Which the healing attention of the nation's educational leadership. Toe· above appeals before us present cb.lllen;is to tlu solum: of a1. mission to post graduate courses in m:dicine in th, CJlleg'; of the Kerala State. But since that State is not alone in the tendency to temporarian with constitutional valu!s and writ p'titioas for college'" admissions are almost a hardly annual, we d,em it our duty to p'rmit ourselves a few preliminary observations before proceeding to the fact-situation and conflict-resolution. Principled policy, consistent with constitutional imp,ratives (Arts. 14 and 15) must guide admissions to courses in higher professio· nal education but Government and Universities, not infrequently take liberties with this larger obligation under provincial pressures and iustitutional compulsions and seek asylum in reluctant pragmatism miudless of hostility to constitutionality. Nothing is more harrowing for the Court, over-burdened with increasing litigation and thereby forced into slow motion, and. unwilling to intervene in an administrative area, than to hamper the strategic stages of educational processes like admissions and examinations, but the Justice system cannot run away from hearing and deciding questions of unconstitutionality, especially !when educational~authorities shape policies, change rules and make peace with the crisis of the hour, ignoring the parameters of the National Charter. We make these .~ .. • CHARLES K. SKARIA v. c. MATHEW(Krishn{l Iyer, J.) 75 -0bservations driven by the painful experience of facing this situation year after year, from State after State. If higher education bids farewell to national vision and equal opportunity-the two fundamental criticisms levelled before us in these cases-what hope is there for constitutionalism save surrender to provincialism and lobby power leaving the fortunes of students of advanced learning to litigative astrology annually ? A national consensus on this issue is long over-due and we venture to suggest that the Union of India will actively involve the academic community and the States, and put the problem on the urgent national agenda and reach solutions constitutionally permissible and agreeable to the genius of the States vis-a-vis post-graduate courses. No State nor University can despise the Constitution nor leave in 'inglorious uncertainty' or myopic ad hocism the career of its talented human resources. Back to the facts. The Kerala State runs three medical colleges with post-graduate degree and diploma courses in two of its universities Trivandrum and Calicut. The selection is made from among candidates guided by the prospectus issued in this behalf and the Selection Committee makes the selection, the principal of the Medi· cal College, Trivandrum, being the convener hereof. A notification inviting applications was published in the Gazette dated 27-2-1979 wherein the last date for receipt of applications was set down as March, 31, 1979. Candidates were considered on the basis of their merit, but the concept of merit was broadened in such manner that marks were allotted for various attributes including mill· tary service, membership of the Scheduled Castes and Tribes, and, were relevant to the point raised in the present case, holding of medi· cal diploma. One of the post-graduate courses offered by two of the colleges is in opthalmology and we are concerned directly with the competitive claims among the candidates for this course only. Right at the outset, we wish to make it clear that we con· fined ourselves to the comparative merits of the candidates for the post graduate degree course in Opthalmology and do not wish to disturb any other course lest there should be upsets beyond what we intend. The competitive marks admittedly provided for 10% to dip· Joma-holders in the selection of candidates to M.S. and M.D. courses in the respective subjects or subspecialities. We are not concerned with the other aspects of the selection process such as percentages in favour of candidates belonging to the scheduled castes and tribes (10 %). Again, 20 % of the seats were set apart for the teaching staff in the medical colleges. One of the bones of contention between the parties in the High Court related to candidates from universities outside Kerala. A B c D E F G H • c D G H 76 SUPREME COURT REPORTS (1980] 3 S.C.R. Articles 14 and 15 do not recognise state frontiers or the cult of 'the "sons of the soil', if we may speak generally ar.d ever-simplistically. The necessary implication of the constitutional mandate is that every basic degree-holder who fills the bill can apply for admission for post-graduate courses. But t)le Kerala State, in its wisdom, provided a niggardly quota of 2 % of the total number of seats for candidates from the entire countcy. minus Kerala-not a catholic approach informed by nationalist generosity, if we may say so with ;some trepedition. By way of aside we may ob· serve that other States, observed with provincial impulses, are equally parsimonious is no validation of a violation of law, if it be so. Anyway, the prospectus provided that "instead of open competition, 2 % of the seats under general merit are set apart for candidates coming from out side Univer~ities other than Kerala and Calicut." Another facet of the forensic right before the High Court needs to be mentioned before we proceed to a formulation of the issues debated in thls Court. While clause 12 of the prospectus frowns upcn late ard/cr cldccti\·e £tplicaticm, clrnfe 13 ftatcs : Certificates to be prcdtcrd :-In all cad his admission. Three seats and six contenders, was the musical chair !cenario. The story thus begins with three seats for post-graduate opthalmology and the whole exercise is confined to allotment of these seats in conformity with the equal op?ortunity rule which is constitutionally inviolable. The seleCtion committee, acting on the gaidelines, had to award 10 marks extra for those who had a post-graduate diplom>-1 reasonable .recognition of an additional accomplishment relevant to the object of excellence in the pnt-graduate degree course. So, no one has attacked the propriety of this addition. On the contrary, both sides have relied on this qualification, the battle being over the subiidiary issue of whether the appellants before us, whose admission to the courses has been undone by the High Court were entitled to reckon in their favour the possession of a diploma the certificate for which was issued to them only after the last date for applications for the post-graduate degree. We. will presently state the events which give rise to this argument. Right or wrong, the Selection C):nn'ttee did admit three students who undoubtedly p)mssed diplo:nll ani, if th' m1rks eligible on that score were to be tacked on, the selections were unassailable except at. the instance of candidates from univmities outside Kerala and - one of wJ.o:n did .suoce>sfully ch1\lenge the selections b>fore the High Court.' Had the final shape of the High Court's order been left int'.\ct it would have meant tbt all those doing their course would be out and the elaborate process of framing fresh rules would iuvolve discussion and debate, consultation and formulation, and then invitation for ap;ilications, only to fild that, at the end of this e'\cunion, everybody has missed the bus since time does nJt stand sti'l until government implements the High Court's will. The major target of attack before the High Court was the 2 % reservation for the entire country's candidate pJp'.llation from outside Kerala in what w1s c11ie;i the "op:n mJrit pJol". TO.: r01.sQn for the nullilication of the pmimo'1ious 'percentage for '0·1t;1de' candidates in the op!n m erifpool has p:en stated by the High Court thus : Despite our anxiety, we are afraid we cannot salvage the principle of selection introduced by the. GJVern m;it under clause 5(c) as a'llounting to a rat10nal clasS1fi· y • ; CHARLES K. SKARIA-v. c. MATHEW(Krishna Iyer,!.) 81 cation based on intelligible differentia having a rational nexus with the object sought to be served. Whether intentionally or otherwise, it strikes us as clever device to oust the 'outside' University Graduates from the general merit pool and to confine them to an illusory scheme of reservations. We have dealt with the policy of institutional reservations paring down the availability of seats for candidates from other universities, in Dr. Jagadish Saran's case (supra). Although in that decision we 1tltimately desisted from striking down the formula · adopted by the Delhi University with a view to avoiding a stalemate for the year, we did direct that University to reconsider the whole problem of admissions and reservations in terms of Arts. 14 and 15 and concretise the constitutional guidelines in that behalf. Having regara to the ratio in the above case, we are not inclined to reverse the view of the Full Bench of the Kerala High Court in the judg· ment under appeal in so far as it has taken the view extracted above. Even so, we feel the need to pursue the matter further because we must design the relief with the least disturbance and not annul the ccurse for the year as a legal consequence. The scheme of reservation of a paltry 2 % for candidates in the w role country outside the two universities of the State has not been substantiated as sufficient fulfilment of Arts. 14 and 15. Fundamental rights· of candidates do not depend on -the grace of goverii::' ments and Indians are not aliens in their own motherland when asking for seats on the score of equal opportunity. A host of good reasons may weigh with the State in formulating preferences, reservations and other cases of choice provided they do not outrage Arts'.'14' and 15, or, indeed, as suggested by this Court in the Thomas case(J.) may promote the process of equalisation as a dynamic phase of equality. What is paramount is equal opportunity for each. The Government, in its wisdom, made provision !for scheduled castes/tribes, backward classes, students from the colleges of Kerala and other categories and, after working out these enclaves of exclusivism and immunity from national competition on sheer merit, wound up with a magnificent 2 % of the total seats by way of homage to "equal opportunity" open to all Indian candidates put together (less Kerala candidates). Can it be that, while sloganising against the parochial doctrine of "sons of the soil", States policy in higher education does not .concede'.more than 2% to Indian candidates qua Indians who are (I) Kera/av. N. M. Thomas, [1976] 2 S.C. C. JJO. A B c D E G H A B c D E F G 82 SUPREME COURT REPORTS [1980] 3 S.C.R. not otherwise sheltered by the dykes of reservations ? The High Court was obviously dissatisfied twith the governmental policy of 2% for "open"' seats which was more a mockery of national integrity, read with equal opportunity, than a sincere respect for the foundational faith enshrined in Arts. 14 and 15. You cannot lay wreath and claim to garland if we may put the point in poignant imagery. Therefore, the High Court struck down the formula for selection because it regarded that a higher proportion of seats for all in "open competition" was a constitutional necessity. We do not delve into this aspect at greater length or scan the pros and cons of the point canvassed because we have already decided in Dr. Jagadish Saran and Ors. v. Union of India (Supra) what guidelines should govern admissions to medical colleges at the higher levels. We, therefore, do not propose to interfere with the holding of the High Court that 2 % for "outsiders" is not sustainable in law. But, we must, even here, caution the Kerala State that an enlightened policy of admission to institutions of higher studies in harmony with the constitution must be formulated if it is not to be guilty of contributing to the confusion in college campuses and "student litigation" which paralyse educational life. Even though we desist from demolishing the reasoning of the High Court on the trivial 2 %, we cannot appreciate the negative stance or note of nullity adopted in the final relief. Remedial jurisprudence is benign judge power. Law in action being a healing art, we must strive to avoid driving out the students half-way through their course and to see that no costly seat for advanced studies in which the community as a whole has a stake is wasted. We do not think the court should give up the search for alternatives. Actually, we persuaded counsel on both sides to make a constructive approach. So viewed, it became feasible for us to reach a reasonable and viable solution to the problem, as will be presently explained. ___..l In conclusion, we agree with the High Court that 2 % in the 'merit pool' for 'outside' candidates is not shown to be rational and so the 'outsider candidates (to use the High Court's expression) should have been considered even beyond 2 %. But how far and under what conditions is for the State to consider. (see Dr. Jagdish Saran, supra). Now we come up against the other limb of the argument which appealed to the High Court. The three candidates already admitted to the Opthalmology course secured their. seats on the basis of 'diploma marks'. Had they no diplomas they would have been screened out. H The High Court.has taken the view that the diplomas of the appellants should have been excluded from consideration by the Selection Committee. Why? The ground is given by the Full Bench in appeal thus: I ' CHARLES K. SKARIA v. c. MATHEW(Krishna Iyer, J.) 83 Under clause 13(k) of the application form, which we have extracted earlier, all certificates required had to be produced with the application. Clause 12 enjoins summary rejection for non-compliance. All of which, only ~eem to indicate that the diploma certificate of weightage must accompany the application. Where it did not, as in this case, accompany the application, there was no right in the Government or special Secretary to over look the defect and direct the weightage to be given even to those who did not have the diploma as was attempted to be done by Ext. P3 letter referred to earlier. Assuming, without deciding that the 'Prospectus' and the notification ware a 'law' we would remind ourselves of the caution administered by the Supreme Court that an unannounced law like Ext. P3 cannot bind, and that it is against the principles of natural justice to penalise a citizen on such 'law vide Har/a v. State of Rajasthan (AIR 1951) SC 467. If acquisition of qualification for eligibility or weightage were to be looked into subsequent to the last date, we should think that only an open and official or authentic declaration of result by the university, or perhaps on official intimation of declaration of result alone can serve the purpose. The direction in Ext. P3 to give weightage to the Kerala University graduates would certainly not serve the purpose, and was wrong and illegal and has vitiated the selection. Bluntly expressed, the comt took the rather pharisaic view that "the diploma certificate for weightage must accompany the application. · Where h did not, as in this case, accompany the application there was no right in the government or Special Secretary to overlook the defect and direct the weightage to be given even to those who did not have the diploma as was accepted to be done by Ext. P3 letter referred to earlier". An oblique suggesfoi; that the Government Secretary's communication was not authentic and, therefore, invalid is also part of the reasoning of the learned judges. With great deference, we express our difference~ It is common case that the diploma holding students who had been ·given admission to. post-graduate opthalmology by the selection committee had secured higher marks than the diploma-holding students who had been refused admission by that committee. But the High Court cancelled the marks awarded to the three students who had been granted admission by the selection committee on round that their diploma certificates were not obtained before A c D E F G H B c D E H 84 SUPREME ·COURT REPORTS [1980] 3 S.C.R.· the last date of application, the intimation to the selection committee by the Secretary to Government was 'unlaw', and. there- -fore, the special marks added to their score had to be deleted. If this stand of the High Court were right, the three students who were currently doing their course would have to get out and since the entire selection had formally been set aside, no one also w@uld be able to get any admission until revised rules were made. The upshot would be that the three seats available for higher opthalmology would be wholly wasted and the 'losers would be the students and the State. Should this be ? We think not. The real reason, apart from' some suspicion, which weighed with the High Court in disregarding the diplomas was that the prospectus and the prescriptions there in were law and could not be deviated from even a wee-bit and, therefore, the non-production of the certified copies of the diplomas along with the applications for admission excluded the candidates from eligibility to the addition of 10 marks. Even if it were not law, an official declaration of university results, not official communication to the selection . committee would· be essential. In our view, this over-stress on literality undermines the substantiality of the guidelines in the prospectus. Here the learned single Judge was right. ... There is nothing unreasonable nor arbitrary in adding 10 marks for holders of a diploma. But to earn this extra IO marks, the diploma mnst be obtained at least on"or before the last date for application, not later. Proof of having obtainedia diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission t0 i'he degree course ? That is the primary qnestion. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for whic1' extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual se/ection. The emphasis is 011 the diploma, the proof thereof subsetves the factum of possession of the diploma and is not an independent factor. The prospectus does say: (4)(b) : 10% to Diploma holders in the selection of candidates to M.S., and M.D., courses in the respective subjects or sub-specialities. 13. Certificates to be produced :--:- In all cases true copies of the following documents have to be produced :- xx xx (k) Any other cetificates required along with application. xx the • • ; CHARLES K. SKARIA v. c. MATHEW(Krishna Iyer, !.) 85 This composite statement cannot be read formalistic fashion. Mode of proof is geared to the goal of the qualification in question. It is su bYersive of sound interpretation and realistic decoding of the JO!escription to telescope the two and make both mandatory in point of time. What is essential in the possession of a diploma before the gi•ien date; what is ancillary is the safe mode of proof of the qualification. To confuse between fact and its proof is blurred perspicacity. To make mandatory .the date of acquiring the additional qualification before the last date for application makes sense.