judgement:
Civil Appeal No. 2297 of 1978.
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.
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, section K. Mehta, P. K. Shamshuddin, P. N. Puri and E. M. Sarul for the Interveners.
A. section Nambiar for Respondent No. 3 in CA 2297/78.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The 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 Leave and under article 32 to this Court, aware as we are of a host of like proceedings which pend in the High Court.
The State of Kerala is the appellant in the civil appeal and 1st respondent 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 admission 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 students drawn from two disparate regions of the State.
Of course, the instant repercussion of the decision 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.
978 Any incisive study of the exercise of the writ power in India may reveal that it limits its action to quashing or nullifying orders proceeding 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 these 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 to this Court.
The Kerala State, notwithstanding its striking demographic, cultural, linguistic and political integrality and educational advance, has certain historical hangovers of academic disparity and developmental 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.
Broadly speaking, this `composite ' State may be dichotomised as Travancore Cochin and Malabar regions woven into one fabric by the .
Gaping disparities of development cannot be wished away by political fusion into one 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 region persuaded the State to set up the Calicut University to which were affiliated all the colleges in that Cindrella area, including the Calicut Medical College.
An adjoining district, Trichur, was also tacked on, for convenience, maybe.
The cynosure of attention in this litigation is the scheme of admission to medical colleges in the State; and so we may adjust the forensic lens to focus on the struggle for seats in the four medical colleges in the State all run by Government but providing for five hundred and odd students, as against several thousands of applicants.
This `musical 979 chair ' situation naturally led to many qualified claimants being rejected and litigative adventures being inaugurated on grounds of discrimination.
One such writ petition having been allowed, the State has, by special leave, come up in appeal.
The points raised in the writ petition under article 32 are identical.
A sensitive appreciation of the grievance successfully ventilated by the writ petitioners in the High Court is possible only if we unfold a fuller conspectus of the facts.
Cognizance of some essential circumstances 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 under the jurisdiction of the first and the fourth under the latter.
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 of 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 degree 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, considered 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 fomulation of that scheme of admissions.
This principle found favour with the High Court in its Full 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 980 the lifting of the ban by efflux of time or otherwise, they auto matically spring back into a progressive or forward class of people or tract.
It is useful to recall the observations made by this Court is State of Kerala vs Jacob Mathew "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.
"(1) If we may add, chronic social disability cannot be amenable to instant administrative surgery and law 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 but as a transient panacea for a geo human handicap which the State must 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 or the High Court.
An earlier decision of the Kerala High Court gave rise to a Commission appointed to recommend which sections of the people required special treatment under article 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 hummered 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 981 and selecting students for medical courses strictly according to the marks secured of course, making allowance for seats reserved for a limited percentage of students from outside and the customary bonus of reservation of seats for Scheduled Castes, Scheduled Tribes and backward classes.
This part of the 'selection calculus ' is beyond cavil before us, 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 mounted on it in the High Court with constitutional artillery from the inexhaustible armoury of article 14.
A Full Bench hit the scheme fatally this time, not with the familiar but fruitless archery of geographical discrimination but with the weaponry of 'reverse discrimination ' in a different mani festation.
The 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 the markes of examinees in pre degree and degree courses of the Calicut University with those of the candidates of the Kerala 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, but whether the operation of different Universities with varying standards of their own is productive of inequality. '(1) 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 be the proper mode of determining comparative merit.
Even in the case of candidates appearing for the same examination in the same university there 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 982 nation to which all candidates are uniformly subjected to.
But the same could not be said in the case of examinations conducted by two or more Universities.
It is well known that some times question papers are tough and sometimes valuation is liberal.
Quite often 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 candidates 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 should be devised to determine their comparative talent.
"(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 declaration of nullification:(2) "As a result of our discussion, 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 objectionable and violative of article 14 of the Constitution.
We grant a declaration to the writ petitioner to that effect.
We deny effective relief to the writ petitioner on account of non joinder of the selected candidates, and the futility 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 the method of selection of candidates by holding a uniform Entrance Examination to secure 983 uniformity of standards, as recommended by the Indian Medical Council vide Exts.
P5 and P8 and as endorsed by the University authorities (vide exhibit P7).
We direct the State Government to forthwith devise a scheme of selection by holding such an Entrance Examination and publish 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 uniformity of standards for assessment and evaluation of students drawn from different Universities, our direction should not be understood as unalterably and inelastically fixing the limits for Governmental action.
Methods for securing uniformity 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 the end, the writ petitioner won the battle but lost the war, for she got an abstract declaration that her exclusion 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 the learned Single Judge that there is such substantial difference in the pre degree courses and evaluations between the sister universities within the same State that the breach of article 14 by equal treatment of the marks unequally secured by examinees in the two universities may be spelt out.
It is trite law that every inconsequential differentiation between two things does not constitute the vice of discrimination, if law clubs them together ignoring venial variances.
article 14 is not a voodoo which visits with invalidation every executive 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 false to our egalitarian faith and only substantial and straightforward classifications 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 Chandrachud, J (as he then was) against "a charter for making minute and microcosmic 984 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 should 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 examinations as too glaring to imperil the equal protection clause.
The presumption is in favour of the vires of legislative and executive action where article 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 undertaken.
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 within the State or neighbouring States.
Even the composition 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 are 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 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance.
Obviously, this high powered Council has power to prescribe the minimum standards of medical education.
It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions.
Thus there is an overall invigilation by the Medical Council to prevent sub standard 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 985 colleges under the same University, among the examiners in the same university.
Such fleeting factors or ephemeral differences cannot be the solid 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 article 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 schemes 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 Bench decision 's ratio on discrimination as between the two universities.
The sole question that survives is of allocation of seats on a university wise 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 States and has the approval of the Medical Council of India; and (2) the standardization of the syllabi uniformly for the two universities 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 partly scared of its impracticability at the moment.
So it opted for the second, namely uniformity of standards, from the formulation of syllabi upto assignment of marks at the examinations.
Surely either of the proposals is an effective answer to article 14.
Even so, when the Committee 's recommendations were placed before the Government it reflected carefully on the pragmatics of implementation and reached the 986 conclusion that it would take some time to fulfil the pre requisites to give effect to that formula.
Time runs, university applications rush in, admissions 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, has now been struck down by the High Court resulting in the appeal before us.
The corner stone of classification adopted for medical admissions by the Government this time was universitywise allocation.
By itself, this approach had constitutional sanction, having regard to the ratio in Chanchala 's case.
The ratio in Chanchala concludes the dispute in this case.
The discriminatory vice, if university wise classification and consequential allocation of seats were resorded to, was pressed but repelled.
Shelat, J. speaking for the Court, formulated the contention thus: "The next contention was that r.9(1), which prescribes university wise distribution of seats results in discrimination for it lays down a classification which is neither based on any intelligible differentia, nor has a rational nexus with the object of the rules.
The argument was that although there is 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 colleges affiliated to a particular university are 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 had passed his P.U.C. examination from a college affiliated to another university.
According to counsel such a classification has no rational basis and has no reasonable nexus with and is in fact inconsistent with the very object of establishment 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 987 have 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 different places presumably for the purpose of catering to the educational and academic needs of those areas.
Obviously one university for the whole of the State could neither have been adequate nor feasible to satisfy those needs.
Since it would not be possible to 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, as 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 suffer 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 established in those areas, it can safely be presumed that they also were so set up to satisfy the needs for medical training of 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 specialised 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 State but 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 advantage over a more meritorious one.
As is well known, different universities have different standards in the examinations held by them.
A preference to one attached to one university in its own institutions for post graduate or 988 technical training is not uncommon. .
Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational bass and a reasonable connection with the object of the rules.
So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged.
[See Chitra Ghosh vs Union of India] In our view, the rules lay down a valid classification.
Candidates passing through the qualifying examinations held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities.
Such a classification has a reasonable nexus with the object of the rules" namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies.
In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of article 14: We do not mean to lay down, as an inflexible dogma of universal application, that under utterly different social and educational environs university based grouping of candidates for specialised courses will, willy nilly, be valid.
But the basic identity of pertinent circumstances bearing on the university centred descrimen in Chanchala and here constitutionalize the scheme of selection adopted by Government grouping all eligibles from colleges affiliated to each University as separate units.
The High Court 's perspective in this regard is impeccable.
It is an interesting sidelight that in Chanchala as much as 20% of the total seats were thrown open to 'outsiders ' i.e. 'those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India.
The underlying unity of syllabus and broad agreement on evaluation are assumed in this pool system, confined to 20% but open to several universities.
Having held in the earlier Full Bench case that university wise categorisation for seats allocation was good the High Court, in the impugned judgment, still struck down the new scheme as discriminatory.
The vice was traced to a certain feature which went beyond mere universitywise allocation and made further modifications governed by the propor 989 tion of the number of students presented by the two universities for the pre degree and B. Sc.
examinations. 'Ay, there 's the rub '.
The Committee 's long range proposal of uniformity between the two universities was unexceptionable and, if adopted, would end apprehensions of injustice stemming from dissimilarities flowing from divergent syllabi and examination methodology.
Indeed Government has accepted it as the long term solution and rightly.
The relevant G.O. dated July 14, 1978, sums up the Committee 's unification solution thus : "As a long teirm solution Government may move the Universities of Kerala and Calicut to unify the curriculum and courses of study for pre degree course and form Inter University Board for the conduct of examination.
When such a scheme is established pre degree will be the only qualifying examination for selection to all courses in the medical colleges.
The Committee has pointed out that unification of the syllabus, course of study and examination in the four disciplines of B.Sc., viz., Physics, Chemistry, Zoology and Botany would be impossible and thus the reservation now given to graduate candidates for selection to Medical and dental colleges will have to be abolished." And the decision of Government is in these terms: "Government. .have accepted the recommendation of the committee to have unified curriculum and course of study and common board for conduct of examinations for the Kerala and Calicut Universities.
But Government consider that unification of syllabus and method of examination should be made also at degree level in respect of the 4 disciplines of Physics Chemistry, Zoology and Botany and that the reservation now given to the graduates for admission to the medical and dental colleges should be continued.
The Universities concerned are being requested to take further action in the matter." But the modus operandi for unification of syllabi and what not are incapable of instant execution by unilateral declaration, since it is the business of the Universities.
And Universities are self consciously autonomous and often politicised, with the result that the writ of Government may not run there.
Moreover, administrative slow motion is the genius of governmental and university processes.
Universities, with plural bodies, many voices and contradictory cerebrations, may meet and debate, appoint sub committees and discuss their reports, await reactions 990 of other organs and hold joint meetings to consider academic issues in all their dimensions and act generally only after leisurely reflect on.
Academies cannot be hustled and often hasten slowly.
Meanwhile, the year rolls on, students stagnate and medical education grinds to a halt.
These painful realities apparently induced the Government to fabricate in its secretariat foundry a transitory strategy for the current year.
This short run project adopted each University as a unit which, as we have earlier explained, was good so far as it went.
But a dubious rider was added which invited the judicial Waterloo.
That is the bone of contention and so we excerpt the relevant portion: "After considering the proposal in all its aspects Government have decided that the seats available for MBBS course after deducting the seats for mandatory admission may be distributed for the students of the two Universities in the ratio of the candidates registered for the pre degree and B.Sc.
course in the two Universities, taking the average of the number of candidates registered for the pre degree and B.Sc.
degree courses with eligibility for admission to Medical Colleges for the last three years as the basis.
" This operated as a cut back on the total 'Calicut ' seats as wholly available for the Calicut University students and, indeed, as urged by counsel for the respondent, subtly subverted the criterion of 'Malabar ' backwardness.
The Calicut Medical College and the Calicut University were created as the purpose oriented mechanisms for progressive elimination of educational backwardness in that territory.
This objective would be fulfilled if the entire number of seats of the Calicut Medical College were exclusively made the entitlement for eligible students from colleges affiliated to that University.
A further slice knifed out of the cake would spell reversal of policy.
We agree with the High Court that the injection of the university wise student strength is drawing the red herring across the trail an irrelevance that invalidates the scheme.
We cannot see the nexus between the registered student strength and the seats to be allotted.
The fewer the colleges the fewer the pre degree or degree students.
And so, the linkage of the division of seats with the registered student strength would make an irrational inroad into the university wise allocation.
Such a formula would be a punishment for backwardness, not a promotion of their advancement.
We cannot uphold the discriminatory paring down based on unreason.
991 Once this premise is reached the calculus is non controversial.
The three medical colleges affiliated to the Kerala University have a total strength of 345 students and the only college affilated to the Calicut University has a student strength of 180.
On these basic figures, the arithmatic worked out on the principles of deduction is beyond controversy.
42 students form the reserved quota and have to be apportioned between the two universities in the ratio of their student strength.
Making available of seats for candidates from other universities is also common ground.
Both sides agree that the net number of seats available to be filled up, if we proceed solely on the principle of university wise allocation, will be 166 for the Calicut University students and 317 for the Kerala University students.
The admissions, even on these agreed figures, will be subject to the die hard rule of Communal reservation.
The further division of seats in the ratio of 60: 40 as between the graduates and pre degree candidates also has to be maintined.
No question of complicating the numbers by any further injection of the population ratio between Malabar and Travancore Cochin arises because the new formula takes care of the backwardness of Malabar and there cannot be double benefits.
Decoding the rules in simplex form, what we get in arithmatical terms is that the Calicut University students who have now been alloted under the Government formula 136 seats will be eintitled to an extra 30 seats.
If we rigidly direct that these additional seats be assigned to the students emerging from the colleges under the Calicut University an equal number may have to be expelled from the students already admitted from out of the Kerala University quota.
This consequence becomes ccmpulsive since the total strength sanctioned for the four medical colleges fixed by the two Universities and approved by the Medical Council of India is 525 seats.
Here comes the play of processual realism in moulding the relief in the given milieu.
The rule of law should not petrify life or be inflexibly mulish.
It is tempered by experience, mellowed by principled compromise, informed by the anxiety to avoid injustice and softens the blow within the marginal limits of legality.
That is the karuna of the law.
Nor is law unimaginative, especially in the writ jurisdiction where responsible justice is the goal.
The court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government, leaving it to the helpless Government caught in a crisis to make do as best as it may, or throwing the situation open to agitational chaos to find a 992 solution by demonstrations in the streets and worse.
We are, therefore, unable to stop with merely declaring that the scheme of admission accepted by Government is ultra vires and granting the relief to the petitioner of admission to the medical college.
The need for controlling its repercussions calls for judicial response.
After all, law is not a brooding omnipresence in the sky but an operational art in society.
The High Court 's ultimate direction is: "We allow this writ petition and quash Exh. P2 G.O. to the extent to which it accepts alternative proposal of the committee referred to in Exh.
The Court also observes: "We think it will be unfair in the circumstances to deny effective relief to the writ petitioner. " The relief claimed was admission to the medical college.
The upshot of the judgment, in terms of student impact, government policy, college admissions and potential for agitation, may be envisioned for a while.
We may also take note of the gregarious trend of one writ petition being followed by many when the grievance is common and the first case is in essence a test case and class action.
What is granted to the petitioner has to be granted to others who follow her.
In terms of numbers several candidates may have to be admitted into the medical colleges.
More than that is the chaotic consequence of the pro tempore project of the Government being struck down with no alternative methodology of selection.
Governments have no magic remedies to tide over sudden crisis.
Their processes are notoriously slow and the temper of the student community is notoriously inflammable.
Thus the negative stroke of voiding the G.O. and granting relief to the petitioner is to throw out a number of students already undergoing their course and to incite unwittingly student unrest of magnitude, apart from leaving the academic algebra for admissions in a state of vacuum.
One thing is certain.
If the syndrome of campus chaos is to be obviated, the court should come to the assistance of the Kerala University students already admitted and undergoing their medical course who might otherwise have to be jettisoned.
We, therefore, do not think it right to force into the medical colleges any students who may be qualified for admission by virtue of our order at the expense of another who has already been admitted and is undergoing the medical course.
This means that 30 students from the colleges affiliated to the Calicut University will have to be provided for ab extra.
But how to find accommodation for 30 more students ? The Universities concerned have the power to increase the streghth ad hoc when gripped by a crisis such as has occurred here.
The Medical Council of India has an overall control in this field, being the statu 993 tory body created under the .
Thus, the concurrence of the Calicut and the Kerala Universities and the Medical Council of India becomes necessary for working out effective reliefs in terms of adding to the strength on a temporary footing, with a sense of equity and anxiety to do justice to the existing entrants.
Unfortunately, neither the Universities concerned nor the students affected are parties.
The presence of the Medical Council of India also has to be secured.
Confronted by this situation, we directed, as a measure of emergency issuance of notice to the two Universities and made them party to the record.
A similar step was taken in the case of the Medical Council of India.
At short notice, all the three parties entered appearance.
Although Shri A. section Nambiar, appearing for the University, expressed inability to consent to any course of addition of strength, he agreed that the concerned academic bodies were likely to meet shortly and the Universities themselves would abide by any directions this Court issued in the interests of Justice.
The learned Advocate General had earlier represented that the Universities were likely to agree to a temporary addition of strength, provided the Medical Council of India would also approve of the course.
We need hardly say that the writ of this Court binds the parties on record and all the three bodies are before us and must abide by the directions we issue necessitated by the exigency of the situation and the need to do justice.
After all, the Court system belongs to the people and must promote constructive justice; and all institutions, including the Governments and Universities, likewise belong,to the people.
This commitment is the whet stone for doing justice in the wider context of social good.
The Universities, as we gather from counsel representing all the parties, may not find it difficult to accommodate 30 students more, apportioned among the four medical colleges of the State.
This addition is compelled by the critical condition set out above.
This need will not survive this academic year and, in that sense, no long term trauma for academic standards will be inflicted by each of the colleges accommodating a few more students for their courses this year.
After all, not much time has passed since the teaching session began.
Compared to their existing strength, the additions are negligible.
The Medical Council of India, through the learned Additional Solicitor General, has expressed that it has no objection to this proposal for a miniscule addition confined to this acadcmic year.
We see no ground for either University to plead inability to help the cause of Justice.
The insistence on standards, measured by marks, is not being relaxed, so much so the quality of the admission of additional students does not suffer.
A marginal strain in the 994 matter of teaching and perhaps extra burden in regard to the practicals may have to be endured.
We are, therefore sure that the Universities, the colleges concerned, the teaching community and the alumni themselves will appreciate the goal and cooperate in the success of the direction we make.
Had we left the Judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the malady confusion, agitation, paralysis.
The root of the grievance and the fruit of the writ are not individual but collective and while the 'adversary system ' makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the court 's power into affirmative structuring of redress so as to make it personally meaningful and socially relevant.
Frustration of invalidity is part of the judicial duty; fulfilment of legality is complementary.
This principle of affirmative action is within our jurisdiction under article 136 and article 32 and we think the present cases deserve its exercise We direct the State Government to admit 30 more willing students who are qualified under the rules and who are students from the colleges affiliated to the Calicut University in order of the marks secured.
They will be distributed by the Selection Committee among the four medical colleges of Government in an equitable way and their decision will be final.
The Kerala and the Calicut Universities will be bound to expand the strength of the medical colleges concerned for this year in obedience to this direction of the Court and the respective bodies under the Universities will act accordingly.
The selection of these 30 students will not be confined to those who have moved this Court or the High Court by way of writ proceedings or appeal.
The measure is academic excellence, not litigative persistence.
It will be thrown open to the first 30, strictly according to merit measured by marks secured.
The apportionment as between graduates and pre degree students and the application of the communal reservation will apply to these 30 to be selected.
The Selection Committee will make its decision on or before the 31st January 1979.
The Universities concerned will convey their approval to the Government for the nceessary addition to the student strength in obedience to the direction of this Court on or before the 27th January 1979.
We direct the State Government for the coming academic year 1979 80, to allot 166 seats for the students from the colleges affiliated 995 to the Calicut University and 317 seats to the students from the colleges affiliated to the Kerala University, the formula regarding every other aspect being as indicated in this Judgment such as for the mandatory admissions, the apportionment between pre degree students and the degree holders and other reservations.
Another imperative step we cast on the two Universities, which are parties before us, and are, therefore, bound by this Order deserves to be clearly expressed.
Having regard to the utter confusion in medical studies that may be produced by keeping the unification of syllabi and methodology of examinations in a flux we think it absolutely essential to fix a time target for the University bodies to act.
Government will issue necessary directions to its representatives on these bodies to accelerate the pace.
We expect both the Universities to implement the proposal made by the Committee and accepted by the Government regardnig the uniform curricula and common examination system and allied matters in such manner that there will be no inequality as between students emerging from one University and the other within the State.
This process shall be completed on or before 31st May 1979.
We are aware that these various directions and orders call for high pressure activisation.
Perhaps, we may emphasise the need for guarding against the slow march of bureaucratic movement embodied in Lord Curzon 's lament respecting the administration of his time, a state of affairs wholly opposed to the dynamic fulfilment of the imperatives cast by the Constitution upon the nation and its institutions.
Said Lord Curzon in a despatch to the Secretary of State: "Your despatch of August 5th arrived.
It goes to Foreign Department.
Thereupon Clerk No 1 paraphrases and comments upon it over 41 folio pages of print of his own composition, dealing solely with the Khyber suggestions in it.
Then comes Clerk No. 2 with 31 more pages upon Clerk No. 1.
Then we get to the region of Assistant Secretaries, Deputy Secretaries and Secretaries.
All these gentlemen state their werthless views at equal length.
Finally we get to the top of the scale and we find the Viceroy and Military Member, with a proper regard for their dignity, expanding themselves over a proportionate space of print.
Then these papers wander about from Department to Department and amid the various Members of Council.
I am grappling with this vile system in my own department, but it has seated itself like the 996 Old Man of the Sea upon the shoulders of the Indian Government and every man accepts, while deploring the burden.
"(1) Hopefully, we part with this case with the thought that there will be no occasion for any party to move for extension of time or to prove that the curse Lord Curzon spelt out still haunts the wheels of administration.
The appeal is allowed; so also the writ petition in the manner and to the extent we have directed.
The parties will bear their costs.
The decisional guidelines herein given will, we dare say, so help dispose of the many Writ Petitions pending in the High Court.
The journey to the Supreme Court is not always necessitous for final justice.
ORDER While there is agreement that thirty seats more have to be added as has been indicated in the judgment making the total number of seats allocable to the students of the Calicut University to 166, there is some dispute regarding the number of seats available for the students belonging to the Kerala University.
We have mentioned in the judgment that it is 317.
It is open to the State Government or to the concerned Universities to bring it to the notice of the court in case there is any clarification necessary.
N. V. K. Appeal & Petition allowed.

summary/full:
Articles 32 and 136 When root of the grievance and the fruit of writ are not individual but collective courts power is one of affirmative structuring of redress to make it meaningful and socially relevant Decisional guidelines to be given.
The State of Kerala appointed a Commission to recommend which sections of the people required special treatment under article 15(4) having regard to their social and educational conditions.
That Commission recommended equitable allocation of seats on the bais of education backwardness of the Malabar area.
Substantially founding itself on these recommendations the these recommendations the State Government evolved a formula, which by polling all applications for admission to the four medical colleges in the state one consolidated list was prepared and candidates were selected strictly according to the marks secured by them.
This scheme having been struck down by the High Court, a fresh expert committee was appointed to examine the quo modo of admissions to medical colleges.
The Government on the basis of these recommendations decided that seats available for the medical course might be distributed for the students of the two 1, Universities of Kerala and Calicut in the ratio of the candidates registered for the pre degree and B. Sc.
course in them.
In a writ petition under article 226 the High Court held that the scheme of selection for admission to the medical colleges on an assessment of merits of students drawn from different universities with no uniformity of standards is objectionable and the linkage of the division of seats with the registered student strength of the universities bears no nexus and is violative of article 14 of the Constitution.
On the question of the validity of the scheme of selection for admission to the medical colleges.
^ HELD : 1.
Current conditions warrant the classification of student community on the zonal basis not as a legitimation of endless perpetuation but as a transient panacea for a geo human hadicap which the State must actively strive to undo.[980E] 2.The principal of reservation with weightage for the geographical area of the Malabar district is approved.[980 G] 3 The reasoning of the High Court that there is such substantial difference in the pre degree courses and evaluations between the sister universities within the same State that the breach of article 14 by equal treatment of the marks un 975 equally secured by the examinees in the two Universities may be spelt out.
Every inconsequential differentiation between two things does not constitute the vice of discrimination, if law clubs them together ignoring vanial variances.
Article 14 is not a voodoo which visits.
with invalidation every executive or legislative fusion of things or categories where there are no pronoanced inequalities.
Mathematical equality is not the touchstone of constitutionality.
[983 E F] State of Jammu & Kashmir vs Triloki Nath Khosa & Anr. ; at 42 referred to.
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 should not "rush in" where the executive varily treads.
[984 A] 5.
Many colleges are run by the State or institutional managements where pre degree or degree courses are undertaken, 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 within the State or neighbouring States.
Even the composition of the academic bodies in the two universities may have common members.
The University Act themselves are substantially similar.
To surmise discrimination from possibilities is alien to the forensic process in the absence of hand facts.
Gross divergences exist amoung Universities affecting the quality of the teaching and the inaiking.
the anomalies of grading and the absurdity of equating the end product 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.
Some backward universities and colleges have degenerated into degree dealers bringing rapid discredit to Indian Academic status.
[984 D F] 6.
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 colleges under the same University.
among the examiners in the same University.
Such fleeting factors or eohemeral differences cannot be the solid 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.
[984 H 985 A] 7.
The functional validation of the writ jurisdiction is an appropriate examination of the substantiality of the alleged disparity.
[985 B] 8.
The corner stone of classification adopted for medical admission.
by the Government was University wise allocation.
By itself.
this approach had constitutional sanction.
[986 C] D. N. Chanchala vs State of mysore & Ors. etc.
[1971] Supp.
SCR 608; relied on 9.
The discriminatory vice,if University wise classification and consequential allocation of seats were resorted to, was pressed therein but repelled.
The fundamental `educational realities and resultant resolution of the legal imbrogliro are instructively presented therein, which have special relevance to the instant case because the social facts, constitutional confrontations and administrative answers in the Kerala and Karnataka litigations are similar.
[986 D, 986 H 987 A] 976 10.The injection of the University wise student strength is drawing the redherring across the trail an irrelevance that invalidates the scheme.
There is no nexus between the registered student strength and the seats to be allotted.
The fewer the colleges the fewer the pre degree or degree students.
And so, the linkages of the division of seats with the registered student strength would make an irrational inroad into the University wise allocation.
Such a formula would be a punishment for backwardness, not a promotion of the advancement.
The discriminatory paring down based on unreason cannot be upheld.
[990 G H] 11.
Law is not unimaginative, especially in the writ jurisdiction where responsible justice is the goal.
The court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government leaving it to the helpless Government caught in a crisis to make do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse.
In the instant case unable to stop with merely declaring that the scheme of admission accepted by Government is ultra vice and granting 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 actions by quashing or nullifying orders proceeding on a violation 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 means, to widen the base and to organise the reliefs so that the Court actualises social justice even as it inhibits injustice.
[978 A B] 13.
This community perspective of the justice system explains why the Court has resorted to certain unusual directions and has shaped the ultimate complex of orders in these proceedings in a self acting package.
Chronic social disability cannot be amenable to instant administrative surgery and law shall not bury its head, ostrich fashion, in the sands of fiction and assume equality where the opposite is the reality.
[978 C, 980 C] 14.
The rule of law runs close to the rule of life and where socieal life, as between one part of the State and another, is the victim of die hard disparties, the constitutional mandate of equal justice under the law responds to it pragmatically and permits classification geared to eventual equalisation.
The writ of this Court binds the parties on record who must abide by the directions issued necessitated by the exigency of the situation and the need to do justice.
[993 D] 16.
The court system belongs to the people and must promote constructive justice; and all institutions, including the Governments and Universities, likewise belong to the people.
This commitment is the whet stone for doing justice in the wider context of social good.
[993 E F] 17.
Leaving the Judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the malady, confusion, agitation, paralysis.
The root of the grievance and the fruit of the writ are not individual but collective and while the "adversary system" makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicual function, so desirable in the Third World remedial juris 977 prudence, transforms the courts ' power into affirmative structuring of redress so as to make it personally meaningful and socially relevant.
Frustration of invalidity is part of the judicial duty; fulfilment of legality is complementary.
This principle of affirmative action is within the court 's jurisdiction under Art 136 and article 32 and the present cases deserve its exercise.
Decisional guidelines given.[994 B F]


judgement:
Civil Appeal No. 2153 of 1969.
Appeal by Special Leave from the Judgment and Decree dated 12 8 69 of the Punjab and Haryana High Court in R.F.A. No. 357 of 1963.
Hardayal Hardy, P. H. Parekh, C. B. Singh and M. Mudgal for the Appellants.
M. N. Phadke, Mohan Behari Lal for Respondent No. 1.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
This appeal is directed against the judgment of the High Court of Punjab and Haryana confirming that of the Subordinate Judge 1st Class, Nabha.
The respondent plaintiff filed a suit for a declaration that he was the Mahant of Dera Baba Khiali Das, Khansura, Tehsil Nabha, District Patiala, that he was entitled to manage the properties of the Dera and that the alienations made by Mahant Krishan Das and Amar Parkash were not 1014 binding on him.
It was alleged by the plaintiff that Amar Parkash who held power of attorney from Mahant Krishan Das, the previous Mahant of the Dera, had mismanaged the properties and had granted leases of lands belonging to the Dera to his mistress and his brother in law.
Mahant Krishan Das came to know about the mismanagement by Amar Parkash and cancelled the power of attorney which he had previously executed in favour of Amar Parkash.
Mahant Krishan Das summoned the general assembly of the Udasi Ghekh and held a meeting, with the help of the Deputy Commissioner, Patiala and the Police, on 23rd July 1961.
The meeting was attended by other Mahants of Udasi Bhekh.
In the general assembly of the Udasi Bhekh, Mahant Krishan Das tendered resignation of office of Mahant on the ground of old age and ill health and appointed the plaintiff as his successor Mahant.
This was accepted by all the Mahants of Udasi Bhekh.
Mahant Krishan Das, treating the plaintiff as his Sadaq Chela, applied Tilak, performed Pagri ceremony with his own hand and duly installed the plaintiff as the Mahant.
The visiting Mahants also performed the Pagri ceremony.
Despite the installation of the plaintiff as Mahant of the Dera, Amar Parkash continued his activities and started obstructing the plaintiff from discharging his obligations as Mahant.
The plaintiff, therefore, filed the suit for a declaration that he was the Mahant of the Dera and for other reliefs.
The defendant Amar Parkash raised the plea that the was the chela of Mahant Krishan Das and that Mahant Krishan Das who died on 30th December, 1961, had executed two Wills on 17th July, 1955 and 24th September, 1961, appointing him as the Mahant to succeed him.
It was alleged that the proceedings which took place on 23rd July 1961 were the result of fraud and undue influence exercised over Mahant Krishan Das.
On the pleadings of the parties the primary question which arose for consideration was whether the plaintiff was validly appointed as Mahant of Dera Baba Khiali Das.
The learned Subordinate Judge.
Nabha framed two principal issues.
Issue No. 1 was: "What was the particular custom or usage prevailing in the Dera in dispute for the appointment of a Mahant on the relevant date ?" Issue No. 1 A was: "whether the plaintiff was validly appointed the Mahant of the Dera in accordance with the prevalent custom ?" The learned Subordinate Judge noticed that neither party pleaded or referred to any particular usage or custom for appointing a Mahant 1015 for the disputed Dera.
He also noticed that the documentary evidence showed that the final appointment of Mahants for Deras in the Nabha State was required to be approved by the Ruler of the State.
Leaving the matter there, the learned Subordinate Judge found that the plaintiff was duly and validly installed as Mahant of the Dera by Mahant Krishan Das in the presence of and with the approval of Udasi Bhekh.
He held that the plea of fraud and undue influence raised by the defendant was not established.
On those findings the suit was decreed.
The first defendant Amar Parkash preferred an appeal to the High Court of Punjab and Haryana.
During the pendency of the appeal the plaintiff sought an amendment of the plaint in order to enable him to expressly plead the particular custom relating to succession to the office of the Mahant of Dera Baba Khiali Das.
The amendment was allowed and the High Court directed the Subordinate Judge to record additional evidence and submit a report giving his finding on the question whether the custom pleaded by the plaintiff was established and if so, whether the plaintiff was appointed in accordance with such custom.
After recording additional evidence the learned Subordinate Judge submitted a report to the effect that the custom alleged by the plaintiff was not established and that upto 1948 the practice was for the Ruler of Nabha State to appoint the Mahant.
After receiving the report of the learned Subordinate Judge, the High Court heard the appeal.
It was conceded by the learned Counsel for the appellant before the High Court that in view of the report of the learned Subordinate Judge, the appeal should be decided on the basis of the evidence adduced before the Trial Court prior to the order of the High Court calling for a report from the Trial Court.
On that basis the learned Counsel for the appellant attacked the finding on issue No. 1 A only and did not assail the findings on the other issues.
The High Court confirmed the finding of the Trial Court that there was no undue influence exercised over Mahant Krishan Das and that the plaintiff was validly appointed and installed as Mahant of the Dera.
In the first instance Shri Hardayal Hardy, learned Counsel for the appellant invited us to explore the evidence and the case law to find out the custom relating to succession to the office of Mahant of Deras in Nabha State in general and Dera Baba Khiali Das in particular.
Ultimately, however, he conceded that if the plaintiff was shown to have been validly appointed and installed as Mahant by late Mahant Krishan Das at the ceremony held on 23rd July 1961, the plaintiff was entitled to succeed.
He argued that late Mahant Krishan Das was covered into appointing and installing the plaintiff 1016 as Mahant and therefore, the appointment of the plaintiff as Mahant of the Dera was invalid.
He also argued that the plaintiff was not a chela of Mahant Krishan Das and, therefore, he could not have been validly appointed as Mahant of the Dera in question.
As pointed out in Mukherjea 's Hindu Law of Religious and Charitable Trusts (Third Edition), succession to the office of Mahant is a matter of some complexity and the custom varies greatly from institution to institution.
Generally speaking, it is pointed out, Mutts may be divided into three classes: Mourasi, Panchayati and Hakimi.
"In the first, the office of the Mohunt is hereditary and devolves upon the chief disciple of the existing Mohunt who moreover usually nominates him as his successor; in the second, the office is dective, the presiding Mohunt being selected by an assembly of Mohunts.
In the third, the appointment of the presiding Mohunt is vested in the ruling power or in the party who has endowed the temple".
It is also said "In various institutions the custom is that in order to entitle a chela to succeed, he must be appointed or nominated by the reigning Mohunt during his life time or shortly before his death and this may be done either by a written declaration or some sort of testamentary document".
It is further said "Even where the Mohunt has the power to appoint his successor, it is customary in various Mutts that such appointment should be confirmed or recognised by the members of the religious fraternity to which the deceased belonged".
In Mahant Satnam Singh vs Bawan Bhagwan Singh(1), the Privy Council while noticing that succession to the office of Mahant was to be regulated by the particular custom of the Math, observed as follows: "In the normal case of the death of a Mahant, the members of the fraternity will be fully aware of the vacancy in the office, and the usual practice will be for the installation of his successor usually nominated by him, to take place on the seventeenth day after the death.
On the other hand, when the Mahant resigns during his life and installs his successor on the gaddi, it is obvious that the fraternity should be made aware of the proposed vacancy in the office and should be given the opportunity of confirming or refusing to confirm the nominee".
It is unnecessary for us to make any further investigation into the custom relating to the appointment of Mahant since, in the light of the submissions made before us, two questions alone arise for consideration namely whether Mahant Krishan Das was coerced into appointing the plaintiff as his successor Mahant and whether the appointment of the plaintiff was invalid on the ground of his not being a Chela of Mahant Krishan Das. 1017 On the question whether late Mahant Krishan Das was subjected to any pressure to appoint the plaintiff as Mahant, both the Courts below have concurrently found that he was subjected to no such pressure.
The finding is one of fact and we are unable to see any ground justifying our interference with a concurrent finding of fact.
Shri Hardyal Hardy submitted that the High Court failed to consider the complaint said to have been made by late Mahant Krishan Das a few days after the installation of the plaintiff as Mahant in which he stated that he had been coerced into appointing the plaintiff as Mahant.
Shri Hardyal Hardy also submitted that the evidence showed that the services of the Police had been requisitioned to pressurise late Mahant Krishan Das.
The submission that the High Court did not consider the complaint said to have been made by late Mahant Krishan Das is without basis since we find that the High Court did refer to the complaint.
The High Court confirmed the finding of the Trial Court that late Mahant Krishan Das who was previously under the influence of Amar Parkash had again come under the influence of Amar Parkash when he made the complaint.
With regard to the presence of the Police at the installation ceremony we are of the view that the presence of the police, at the ceremony, far from advancing the appellant 's case, destroys the case that Mahant Krishan Das acted under coercion.
The question that remains for consideration is whether the plaintiff was the Chela of Mahant Krishan Das and whether he could be validly appointed, if he was not the Chela.
In Exhibit P 7 dated 23rd July 1961 which was executed by Mahant Krishan Das and attested by all visiting Mahants the plaintiff Parkasha Nand was described as 'Sadaq Chela ' of Mahant Krishan Das.
The ceremony which took place on 23rd July 1961 was described by Parkasha Nand in the following words: "The congregation sat on the durries on the first floor of the Dera.
About 25 Mahants and about 30 villagers sat on those durries.
Mahant Krishan Das offered a Tilak on my forehead.
Mahant Bikram Dass collected turbans from the Mahants who were present there and tied five turbans on my head.
Mahant Som Parkash offered me a Doshala and sugar cakes were distributed.
All these proceedings were gone through with the free and voluntary consent of late Mahant Krishan Das and no pressure was brought to bear on him.
Mahant Krishan Das was not confined.
Exhibits P6 to P8 were written at that time and the people who 1018 were present had affixed their signatures and thumbimpressions thereon".
We are satisfied that late Mahant Krishan Das accepted the plaintiff as his Chela and appointed him as his successor Mahant.
We may also mention here that the learned Subordinate Judge in his report mentioned that Pandit Bhagtanand who was previously a Mahant of the Dera was not a Chela of his predecessor Mahant Sunder Das and that Mahant Krishan Das himself was not a Chela of his predecessor Mahant Bhagtanand.
We are unable to see any ground for inteference and the appeal,is accordingly dismissed with costs.
N.V.K. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
In his suit for declaration that he was the Mahant of a Ders, the plaintiff (respondent) claimed that the late Mahant who had previously executed the power of attorney in favour of the defendant (appellant) cancelled it and summoned the General Assembly of the Udasi Bhekh which was attended by other Mahants of the Udasi Bhekh and tendered his resignation on the ground of old age and ill health, that the late Mahant treated him as Sadaq Chela and that he made him a Mahant by applying Tilak and performing the Pagri ceremony at the Udasi Bhekh.
The defendant on the other hand claimed that it was he who was the chela of the late Mahant who, before his passing away executed two wills appointing him as the successor to the gaddi and that the proceedings making the plaintiff as Mahant were the result of fraud and undue influence exercised by the plaintiff over the late Mahant.
Decreeing the suit the Subordinate Judge held that neither party referred to any particular usage or custom of appointing a Mahant, that upto 1948 the practice was for the Ruler of the erstwhile State of Nabha to appoint a Mahant, but that in this case the plaintiff was duly and validly installed as the Mahant in the presence of and with the approval of the Udasi Bhekh and that no fraud or undue influence alleged by the defendant was established.
The High Court confirmed all the findings of the trial court.
On further appeal to this Court the defendant (appellant) contended that (1) the late Mahant was coerced into appointing the plaintiff as his successor and (2) the appointment of plaintiff was invalid in that he was not a chela of the late Mahant.
Dismissing the appeal, ^ HELD: 1 (a) On the question whether the late Mahant was subjected to any pressure to appoint the plaintiff as Mahant, both the courts have concurrently found that he was subjected to no such pressure.
There is no reason for interference with a concurrent finding of fact by the two courts below.[1017 A B] (b) The submission that the High Court did not consider the complaint said to have been made by the late Mahant that he had been coerced into appointing the plaintiff as Mahant is without basis.
The High Court did refer to the complaint.
It confirmed the finding of the trial court that the late Mahant who was previously under the influence of the appellant had again come under his influence when he made the complaint.
The presence 1013 of the police at the installation ceremony far from advancing the appellant 's case, destroys the case that the Mahant acted under coercion.
[1017 C D] 2(a) In the matter of succession to the office of Mahant the custom prevalent in various institutions is that in order to entitle a chela to succeed, he must be appointed or nominated by the reigning Mahant during his life time or shortly before his death and this may be done either by a written declaration or some sort of testamentary document.
Even where a Mahant has the power to appoint his successor, it is customary in various Mutts that such appointment should be confirmed or recognised by the members of the religious fraternity to which the late Mahant belonged.
When a Mahant resigns during his life time and installs his successor, on the gaddi the fraternity is made aware of the proposed vacancy in the office and is given an opportunity of confirming or refusing to confirm the nominee.
[1016 D, E, G] In the instant case the document executed by the late Mahant on the date of the installation of the plaintiff as Mahant was attested by all the visiting Mahants of the Udasi Bhekh who assembled at the Dera.
The plaintiff was described as Sedaq Chela of the late Mahant.
This document showed that the late Mahant accepted the plaintiff as chela and appointed him as his successor.
[1017 E 1018 A] (b) The Subordinate Judge found that none of the three earlier Mahants of the Dera who succeeded to the gaddi was a chela of each of his predecessors.
[1018 B] Mahant Satnam Singh vs Bawan Bhagwan Singh, AIR 1938 PC 216; referred to.
Mukherjea 's Hindu Law of Religious & Charitable Trusts (Third Edition) referred to.


judgement:
N: Criminal Appeal No. 194 of 1973.
Appeal by Special Leave from the Judgment and Order dated 3 4 1973 of the Andhra Pradesh High Court in Criminal Appeal No. 703/71.
A. N. Mulla and A. Subba Rao for the Appellant.
G. Narayana Rao for the Respondent.
The Judgment of the Court was delivered by FAZAL ALL, J.
In this appeal by special leave the appellant has been convicted under section 161 I.P.C. and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 250/ on each count.
1009 The appellant had been convicted by Special Judge but on appeal by the State to the High Court the High Court reversed the judgment of acquittal and convicted the appellant as indicated above.
According to the prosecution the appellant is said to have struck a bargain for taking a bribe of Rs. 125/ which he received on the 15th of July, 1968 in the presence of P.Ws. 1 and 3.
On receiving the signal the raiding party appeared on the scene and the hand of the accused was dipped in water containing phenopthelien solution which showed that he touched the notes.
The defence of the appellant was that he never demanded any bribe and that the notes were thrust into his pocket.
It is not necessary for us to dwell on the merits of the case because, in our opinion, the appeal must succeed on a short point of law, raised by Mr. A. N. Mulla, learned counsel for the appellant.
It was argued that the sanction under section 6 of the Prevention of Corruption Act produced in this case does not reveal the facts constituting the offence and, therefore, there is no evidence to show on what materials the sanctioning authority applied its mind and granted the sanction.
The Resolution of the Standing Committee granting the sanction is Exh.
P 16 and is dated 31 3 1969, and runs as follows: "As per note of the Commissioner, M.C.H. the Standing Committee unanimously accords sanction for prosecution of Sri Mohd. Iqbal Ahmed (in the scale of 110 180) Section Officer of Town Planning Section (Under suspensions) in a competent Court for the offence mentioned in the note of the Commissioner M.C.H., dated 18 1 1969 so as to enable the Commissioner to sign the prosecution order and send it to the Director, Anti Corruption Bureau for taking further action at the earliest".
A perusal of the Resolution of the Sanctioning Authority clearly shows that no facts on the basis of which the prosecution was to be sanctioned against the appellant are mentioned in the sanction nor does this document contain any ground on which the satisfaction of the Sanctioning Authority was based and its mind applied.
This document merely mentions that the sanction has been given on the basis of a note of the Commissioner, Municipal Corporation which appears to have been placed before the Committee.
It is obvious, therefore, that this note, if any, must have come into existence either on 31 3 1969 or at any date prior to this.
The prosecution could have proved the facts constituting the offence which were placed before the Sanctioning Authority by producing the note at 1010 the trial.
But no such thing has been done.
What the prosecution did was merely to examine two witnesses P.Ws. 2 and 7.
P.W. 2 has produced the order implementing the Resolution of the Sanction ing Authority which is Exhibit P 10 and is dated 21st April, 1969, that is to say after the sanction was given.
This document no doubt contains the facts constituting the offence but that does not solve the legal issues that arise in this case.
It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence.
This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.
It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio.
In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in Exhibit P 16 which was placed before the Sanctioning Authority.
The evidence of P.W. 2 or P.W. 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject matter of the sanction by the Standing Committee of the Corporation.
The note referred to above was the only primary evidence for this purpose.
Mr. Rao vehemently argued that although the Resolution, Exh.
P 16 does not mention the facts, the Court should presume the facts on the basis of the evidence given by P.W. 2 and the order implementing sanction which mentions these facts.
This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant.
The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
It was next contended by Mr. Rao that in view of the presumption which is to be drawn under section 4 of the Prevention of Corruption Act, even if, no facts are mentioned in the Resolution of 1011 the Sanctioning Authority it must be presumed that the Sanctioning Authority was satisfied that the prosecution against the appellant should be launched on the basis of the presumpion that the accused had received a bribe.
With due respects to the learned counsel, this argument seems to be wholly mis conceived.
In the first place, there is no question of the presumption being available to the Sanctioning Authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court.
Secondly, the presumption does not arise automatically but only on proof of certain circumstances, that is to say, where it is proved by evidence in the Court that the money said to have been paid to the accused was actually recovered from his possession.
It is only then that the Court may presume the amount received would be deemed to be an illegal gratification.
So far as the question of sanction is concerned this arises before the proceedings come to the Court and the question of drawing the presumption, therefore, does not arise at this stage.
Lastly, it was submitted by Mr. Rao that he should be given a chance to produce the materials before the Court to satisfy that the Sanctioning Authority had duly applied its mind to the facts constituting the offence.
We are, however, unable to accede to this prayer which has been made at a very late stage.
The prosecution had been afforded a full and complete opportunity at the trial stage to produce whatever material it liked and it had chosen to examine two witnesses but for reasons best known to it did not produce the note which formed the subject matter of the Resolution of the Sanctioning Authority Exh.
It is well settled that in a criminal case this Court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna delibrately left by the prosecution.
The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it.
For these reasons, therefore, we are satisfied that the present prosecution was launched without any valid sanction and, therefore, the cognizance taken by the Special Judge was completely without jurisdiction.
The appeal is accordingly allowed.
The judgment of the High Court is set aside and convictions and sentences passed on the appellant are quashed.
The appellant will now be discharged from his bail bonds.
P.B.R. Appeal allowed.

summary/full:
The appellant who was charged with an offence under section 5(2) read with s.5(1)(d) of the Prevention of Corruption Act was acquitted by the Special Judge.
But the High Court on appeal by the State, reversed the judgment of he Special Judge and convicted him.
In appeal to this Court it was contended on behalf of the appellant that there was no evidence to show on what materials the sanctioning authority applied its mind before granting the sanction under s.6 of the Act.
The entire proceedings are void ab initio.
Allowing the appeal.
^ HELD: 1 (a).
The prosecution of the appellant was without valid sanction and, therefore, cognizance taken by the Special Judge was without jurisdiction.
[1011 G] (b) Any case instituted without proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio.
It is incumbent on the prosecution to prove that a valid sanction had been granted by the sanctioning authority after it was satisfied that a case had been made out constituting the offence.
This should be done in two ways: either (i) by producing the original sanction which itself contains the facts constituting the offence and the grounds of sutisfaction or (ii) by adducing evidence aliunde showing the facts placed before the authority and the satisfaction arrived at by it.
[1010 B D] In the present case no evidence, either primay or secondary, had been led to prove the contents of the note placed before the sanctioning authority nor were the witnesses examined in a position to state the contents of the note.
The grant of sanction is not an idle formality but a solemn and sacrosanct act which affords protection to government servanats against frivolous prosecutions and must therefore be strictly complied with before any prosecution could be launched against public servants.
[1010G] (b) There is no force in the argument of the State that the Court should presume the facts on the basis of evidence given by one of the witnesses and the order implementing the sanction mentioning those facts.
What the Court 1008 has to see is whether or not the sanctioning authority at the time of giving the sanction was aware of the facts constituting the offence and applied its mind for the same.
Any subsequent fact coming into existence after the resolution had been passed is wholly irrelevant.
[1010 F] (c) There is equally no force in the State 's contention that even if no facts were mentioned in the resolution it must be presumed that the sanctioning authority was satisfied that the accused had received a bribe.
There is no question of a presumption being available .o the sactioning authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court.
[1011 B] (d) The presumption does not arise automatically but only on proof of certain circumstances that is to say, where it is proved by evidence in Court that the money said to have been paid to the accused was actually recovered from his possession.
It is only then that the Court may presume the amount received would be deemed to be an illegal gratification.
The question of sanction arises before the proceedings come to the Court and the question of drawing a presumption does not arise at this stage.
[1011 C] (e) The prosecution cannot be given a chance to produce any material before the court at the appellate stage to satisfy that the sanctioninf authority had duly applied its mind before giving the sanction.
The prosecution had been afforded a full and complete opportunity at the trial stage to produce whatever material it liked and it had chosen to examine two witnesses; but for reasons best known to it, it did not produce the note which formed the subject matter of resolution of the sanctioning authority.
[1011 E] (f) In a criminal case this Court would not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution.
The liberty of the subject was in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it.
[1011 J]