Orissa High Court
Amisha Nagpaul And Ors. vs State Of Orissa And Ors. on 26 November, 1987
Equivalent citations: AIR1988ORI190, AIR 1988 ORISSA 190, (1988) 65 CUT LT 24
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. In this batch of writ petitions, the legality of the Prospectus prescribing "Oriya" as a subject in the Entrance Test and further prescribing fifty per cent of the marks in Oriya to be secured in order to be eligible to be considered for admission to the M.B.B.S. Course is the point in issue. The petitioners in O.J. Cs. Nos. 2586, 2893, 3054, 3266 and 3537 of 1986 had appeared at the Entrance Test held for the academic session 1986-87 and petitioners in O.J.C. No. 2662 of 1987 have appeared at the Entrance Test that has been held during this year, but the results have not yet been declared. It is the common case of the petitioners in all these writ petitions that the admission to the M.B.B.S. Course in three different Colleges in the State as well as the B.D.S. Course in Government Medical Colleges including the Dental Wing of the S.C.B. Medical College is made through an Entrance Test. For that purpose every year a prospectus is issued. Para 8 of the Prospectus deals with the Entrance Examination. Para 8.7 provides : - -
"There shall be one question paper in the Entrance Examination consisting of multiple choice objective type questions covering Physics, Chemistry and Biology (Botany and Zoology) and English taught at the qualifying examination level and another question paper with separate Answer sheet of Descriptive type in Oriya up to M.E. Standard."
It is asserted in the writ petition that the Indian Medical Council which exercises control over the medical studies throughout the country has prescribed the subjects in which tests should be held for entry into medical colleges and these subjects are Physics, Chemistry, Biology and English. Without any rhyme or reason, the State of Orissa has prescribed "Oriya" as also a subject in the Entrance Test and such prescription is arbitrary having no reasonable nexus with the object to be achieved and accordingly requires to be struck down.
2. In the counter-affidavit filed on behalf of the opposite parties, a stand has been taken that the Indian Medical Council, no doubt, has recommended the subjects to be examined at the Entrance Examination for admission to the M.B.B.S. Course, but that does not take away the power of the State Government to prescribe any additional subject in which the Entrance Test may also be held. It has been further asserted that since Oriya has been declared as the official language of the State with effect from 1-4-1985 and it is the only spoken language of the people of the State, it is essential for every medical student to have dialogue with the patients to understand their problems and for that purpose, the Government thought it fit to have a test in Oriya also and accordingly such prescription cannot be held. to be arbitrary or irrational.
3. The short question which arises for consideration, therefore, is as to whether prescribing "Oriya" as a subject in the Entrance Test for admission to the M.B.B.S. Course in the three medical colleges of the State obviously for assessing the individual merit can be said to have any reasonable nexus with the object to be achieved It is too well known that in a State where there is more than one medical college and there is more than one University from which students usually obtain their minimum qualification for being entitled to be admitted to the M.B.B.S. Course, it is not possible to have their relative merits on the basis of the marks obtained by them in the University Examination, inasmuch as the standard of examination and valuation of answer papers varies from one University to the other. There cannot be a second opinion on the point that the admission to any institution must be made on the basis of merit. Since it is not possible to assess the relative merit of the students seeking admission on the basis of their respective marks obtained in the University examination as the standard of marking varies from University to University, the Indian Medical Council had suggested that the relative merit could be assessed through an entrance examination and that is how an entrance examination is conducted Therefore, the prime object of holding an entrance examination is to assess the relative merit of the students seeking admission to the M.B.B.S. Course. As per the Regulation of the Indian Medical Council, the subjects in which the students should be tested in the Entrance Examination are Physics, Chemistry, Biology and English and by far in all States in the country this has been the practice. However, for the first time in the prospectus issued for the academic session 1986-87, the additional subject of "Oriya" in the Entrance Test is introduced. A batch of writ petitions had been filed challenging the legality of the same in this Court which were heard by us. When again the same prescription continued for the academic session 1987-88, the petitioners in OJ.C. No. 2662 of 1987 have challenged the same.
4. The subject "Oriya" has nor reasonable connection with the study of medical science. The books are in English, the teaching is in English and the examination is held also in English. The subjects Physics, Chemistry and Biology have undoubtedly some relevance in the study of medical science and that is why probably the Indian Medical Council in its Regulation had fixed the subjects in which the Entrance Test should be held as Physics, Chemistry, Biology and English. If Oriya as a subject cannot have any rational nexus with the study of M.B.B.S. Course, or in obtaining the M.B.B.S. degree, it is not understood how that subject can be introduced at the entrance test to assess the relative merit of the candidates. Relative merit of a candidate has to be assessed through the medium of an entrance test in the subjects which may have some relevance in the context of medical studies. That is why at the entrance test, other subjects like Mathematics have not been introduced. In this view of the matter, it is not understood as to what nexus the subject "Oriya" can have with the object to be achieved, namely assessment of relative merit for the study of M.B.B.S. Course. The nexus or object for having Oriya as a subject in the Entrance Test as given in the counter-affidavit of the opposite parties, namely, the students must have dialogue with the patients, in our opinion, does not appear to be a reasonable one. It is no doubt true that the medical students in course of their practical training may have to examine patients which necessitates dialogue with patients in Oriya, but that object was being achieved and can be very well achieved through the process of making it compulsory for those who have not taken 'Oriya' as a language in their High School Certificate Examination, to obtain a certificate by appearing at a test which is usually conducted by the Government to test the candidates by M.E. standard in Oriya. In fact, the resolution of the Government 'of Orissa in the General Administration Department No. 21388/Gen. dt. 12-9-1984 indicates that the language test would be held twice a year by the Education and Youth Services Department to test the candidates by M.E. Standard in Oriya to enable them to qualify for employment in public service. The students who have not passed their examination of High School Leaving Certificate with Oriya as a subject may be required to obtain that certificate of passing Oriya test up to M.E. Standard with in a reasonable period. But even for those who have passed their High School Certificate Examination with Oriya as a subject, prescribing Oriya as a subject in the Entrance Test for admission to the M.B.B.S. Course cannot but be said to be irrational and arbitrary having no nexus with the object to be achieved. As has been stated earlier, the main object of holding an entrance test for admission to the medical colleges in the State must be the object of finding out the relative merit of the candidates and to select the meritorious ones and the said merit can be tested by holding the test in subjects which have some relevance with the study of medical science. That being so, it is not possible to appreciate the stand of the State Government as unfolded in the counter-affidavit that "Oriya" was introduced as a subject in the Entrance Test with the object of making the candidates proficient in their dialogue in Oriya with patients which is necessary in course of medical studies. Equally unreasonable is the stand that 'Oriya' has been the official language with effect from 1-4-1985. It is not known how that can have any relevance with the study of medical science in the medical colleges.
5. The Supreme Court has observed in the case of Suman Gupta v. State of J. & K., AIR 1983 SC 1235 :-
"......We think it beyond dispute that thee exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason- relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so........"
Of course, this observation had been made in the context of nomination of candidates by the State Government for admission to medical colleges in other States against reserved vacancies for the States, but the said observation equally applies to the present case and applying the said test, we do not find any relevance of introducing 'Oriya' as a subject at the Entrance Test with the object which it seeks to serve, as unfolded in the counter-affidavit of the State Government. In the result, therefore, Para 8.7 of the prospectus so far as prescribing a paper of descriptive type in Oriya up to M.E. Standard and consequently that portion of Para 9.2 of the prospectus providing that a candidate is required to secure not less than fifty per cent marks in Oriya to qualify for selection, are struck down.
6. Though the provision in the prospectus prescribing 'Oriya' as a subject at the Entrance Test has been struck down, yet it is not possible for us to grant any relief to the petitioners those who have challenged the said provision contained in the Prospectus for the year 1986-87, since the seats for that academic year have already been filled up and the students who have taken admission during that year have already studied for more than a year. It is not possible to reassess the relative merit now of the condidates who had appeared pursuant to the Prospectus issued for the academic session 1986-87 excluding the marks obtained by them in Oriya, particularly when those who have been selected and admitted and have studied for one year are not parties before us and their admission cannot be struck down by us. Even it is not possible for giving a direction in favour of those petitioners who had appeared pursuant to the prospectus issued for the year 1986-87 to find out as to whether they would have been selected excluding their marks obtained in Oriya during the test held for the last academic session and directing the opposite parties to give them admission during this year since for this year the relative merit of the candidates has to be assessed on the basis of the test that has been held this year the results whereof are awaited. Consequently, no relief can be given to the petitioners in O.J. Cs. Nos. 2586, 2893. 3054, 3266 and 3537 of 1986 and accordingly these writ petitions are dismissed.
7. So far as the Entrance Test that has been held for admission to the M.B.B.S. Course during the academic session 1987-88 is concerned, it is stated before us that the results have not been published and since we have struck down Paragraphs 8.7 and 9.2 of the prospectus so far as they relate to the test in Oriya is concerned, 1 direct that the results of the Entrance Test held for the academic session 1987-88 be declared excluding the marks obtained in Oriya, but assessing the respective merits of the candidates on the basis of marks obtained in the Entrance Test in the subjects of Physics, Chemistry, Biology and English. O.J.C. No. 2662 of 1987 is accordingly allowed, but in the circumstances, there will be no order as to costs.
Agrawal, C.J.
8. I have perused the judgment prepared by brother Patnaik, and while entirely agreeing with him, I would like to add a few observations of my own.
9. The Indian Medical Council has prescribed certain subjects in which entrance examination is held for admission into the M.B.B.S. Course in every medical college of the country and the subjects are Physics, Chemistry, Biology and English, This system was being followed in this State also until the year 1985. Thereafter, when Oriya was declared as the Official language in the State with effect from 1-4-1985, Oriya has been added a subject in the entrance examination and one question paper with a separate answer script of descriptive type in Oriya up to M.E. Standard is being set.
Para 9.2 of the Prospectus mandatorily provides that : --
" A candidate is required to secure not less than 50 per cent marks in Oriya to qualify for the selection."
It is this provision of the prospectus which is under attack.
10. It was submitted by Dr. Dash, learned counsel for the petitioners, that in essence this provision amounts to reservation of all the seats only for Oriya students in disguise and offends the equality Clause enshrined in Articles 14 and 16 of the Constitution.
Article 16 guarantees equality of opportunities to all citizens in matters relating to employment or appointment to any office under the State and prohibits discrimination only on grounds of religion, race, caste, sex, descent, place of birth and residence.
It was further submitted that a compulsory provision for passing in Oriya, apart from having no nexus with the objective of medical education, amounted to denial of equal opportunity to students coming from other States or even local residents but not securing qualifying marks only in Oriya paper, howsoever brilliant otherwise he may be and howsoever high marks he might have secured in the other subjects.
11. Article 14 of the Constitution also contains an Equality Clause and no State can deny to any person equality before the law or the equal protection of the laws within the territory of India. It is no doubt true that the principle of equality does not mean that every law must have universal application for all persons who are not, by nature, attainment or circumstances, in the same position as the varying needs of different classes of persons often require separate treatment and the State in appropriate cases has the power of classifying persons for legitimate purposes which is bound to produce some inequality.
The doctrine announced by the Supreme Court in this regard is that law, in order to survive the challenge of the Equality Clause in Article 14, must be "reasonable, right, just and fair."
It is now well accepted and a settled position that in order to pass the test of "reasonable classification", two conditions must be fulfilled, namely, that (1) the classification must be founded on a reasonable differentia which distinguishes those that are grouped together from others left out of the group and that (2) the differentia must have a reasonable relation to the object sought to be achieved by the pro visions of law in question.
12. The Supreme Court in the case of Dr. Pradeep Jain v. Union of India, AIR 1984 SC 1420 has firmly observed that the Constitution recognises only one domicile, namely, domicile in India. The following observation in that judgment is very apposite : --
"Anyone anywhere, humble or high, agrestic or urban, man or woman, whatever be his language or religion, place of birth or residence, is entitled to be afforded equal chance for admission to pay secular educational course for cultural growth, training facility, speciality or employment. It would run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State A, which ordinarily in the commonality of cases would be the result of his birth in a place situate within that State, should have opportunity for eduction or advancement which is denied to other citizen because he happens to be resident in State B. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore, always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen can legitimately, without serious detriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set up."
In this very decision, also the Supreme Court has reiterated the right to depart from the principle of selection based on merit where it is necessary to do so for the purpose of bringing about real equality to those who are unequable. This question was a little more elaborately discussed in a later decision of the Supreme Court in the case of Nidamarti v. State of Maharashtra, AIR 1986 SC 1362, where a line of poet William Blake, namely " one law for the Lion and the Ox is oppression" was quoted with approval and the power of the State to resort to compensatory State action for the purpose of making people, who are factually unequal in their wealth, education or social environment, equal in specified areas was recognised.
13. However, the action of the opposite parties in this case, in my opinion, does not subserve any of the objectives, and actually the educational advancement in medical education in State is rather sought to be impeded by geographical limitations.
The only ground that has been pressed into service on behalf of the opposite parties is that a candidate after completing his course without having knowledge of the local dialect cannot gainfully serve the purpose of his education. A am sorry to observe that the whole approach is illusory and erroneous. Why should one assume that all the students, who would ultimately pass their final M.B.B.S. Course, would enter into active practice in the State of Orissa alone, because the contingency contemplated can arise only in that situation. Even assuming so, by living in the State for a period of 5-6 years as a student, one should naturally pick up that much of proficiency in speaking and understanding the Oriya language which may be sufficient for him to deliver the goods.
Another aspect has also been noticed in the judgment of my learned brother, namely, the Government Resolution dt. 12-9-1984 in this regard.
14. Reference may also be made to Article 29(2) of the Constitution under the Fundamental Rights Chapter protecting the cultural and educational rights of the citizens. According to that, no citizen is to be denied admission into any educational institution maintained by the State or receiving aid out of the State funds on grounds only of religion, race, caste, language or any of them. Clause (2) thus confers an individual right to the citizens as such and the prospectus prescribing Oriya as a compulsory subject would be discriminatory in nature and offend the protection under Article 29(2) of the Constitution.
15. On a consideration of all the above facts and materials, I, in complete agreement with my learned brother Patnaik, would strike ' down the provision prescribing the Oriya paper and the provision for its compulsory passing in the prospectus on the ground of unreasonableness and direct that the results of the students who had appeared at the entrance test for admission into the M.B.B.S. course for the academic session 1987-88 on the basis of the marks obtained by their performance in the subjects prescribed by the Indian Medical Council be published now without any unreasonable delay.
16. Let an appropriate writ issue accordingly.