Holding

The High Court erred in directing the State to constitute a statutory independent body; such direction usurps the legislative function, and the selection carried out by the executive‑constituted Competent Authority is valid.

Summary

The Supreme Court examined appeals filed by the State of Jammu & Kashmir and the candidates who had been selected to the MBBS/BDS courses against a Jammu & Kashmir High Court judgment that had set aside those selections. The High Court had directed the State to create a statutory independent body for admissions, based on its earlier Jyotshana Sharma decision, and had held the later selection invalid because the Competent Authority did not function as a statutory body and one of its three members never participated. The Supreme Court held that the High Court exceeded its jurisdiction by directing the legislature to enact a law and that such a direction usurps the legislative function. It further ruled that the executive‑constituted Competent Authority, even with only two members, validly carried out the selection and that the procedure – written test and viva‑voce – was not arbitrary. Consequently, the High Court’s order was set aside and the writ petitions of the unsuccessful candidates were dismissed.

Issues considered

Whether a High Court can issue a direction to a State Government to constitute a statutory body, thereby compelling legislative action
Whether the selection to medical colleges is invalid because the Competent Authority was not a statutory body and one member did not participate
Whether the procedure adopted for admission (written test and viva‑voce) is constitutionally valid and non‑arbitrary
Whether the directions in Jyotshana Sharma’s case are binding on the State and the subsequent selection process

Legislation cited

Constitution of Indias. Article 162, s. Article 226, s. Article 246(2), s. Article 32
Jammu & Kashmir Constitutions. Section 5

Subjects

judicial reviewseparation of powersstatutory bodymedical college admissionsexecutive authorityselection procedurereservation policyconstitutional law

Judgment

ASIF HAMEED & ORS. ETC. ETC.
A
v.
STATE OF JAMMU & KASHMIR & ORS. ETC. ETC.

MAY 3, 1989

-·..( [K.N. SINGH, K. JAGANNATHA SHETTY, AND B
'· KULDIP SINGH JJ.]

Constitution of India, 1950: A~ticles 32, 226-.fudicial review--
Court not an appellate authority-Not to advise executive in matters of
policy-Doctrine of separation of powers-What is.

""')" Professional Colleges-Admission to Jammu & Kashmir Govern-
c
\ ment Medical Colleges (Selection of Candidates for Admission) Proce-
dure Order 1987. Clause 2(b), 2(c), 3 and 4-High Court-
Whether competent to issue direction to State Government to constitute
'Statutory Body' for selections to medical colleges.
D
A number of unsuccessful candidates to the MBBS/BDS course
in the two Government medical colleges of Jammu & Kashmir for the
1988-89 Session had challenged in the High Court of Jammu and
/,. Kashmir the selection to the above courses on the ground that the selec-
tion was violative of the directions of the High Court in Jyotshana
Sharma & Ors. v. State of Jammu & Kashmir, (decided on 17.4.1987). E
In that case, the High Court had directed the State of Jammu and
Kashmir to entrust the selection process of the two medical colleges to a
statutory independent body, and till that was done, to entrust the
process of selection to such a body which was to be free from executive
influence. In deference to the observations of the High Court, the State
Government issued the Jammu & Kashmir Government Medical F
Colleges (selection of candidates for admission to first year MBBS/BDS
course and other professional courses) Procedure, Order, 1987. The
Order provided for the constitution of a Competent Authority for the
purpose of making selections to the professional courses. Another order
was issued laying down the qualifications, functions, conditions of
'"''~ service and powers and duties of the Competent Authority. G

The High Court allowed the writ petitions on the ground that the
selection was in violation of the court's directions in Jyotshana Sharma's
case. The High Court held the directions in Jyotshana Sharma's case to
-·, be of a binding nature and it reiterated the same by issuing a
mandamus. H
19
20 SUPREME COURT REPORTS [1989] 3 S.C.R.

A Earlier the petitioners had tiled a writ petition in the High Court
challenging the appointment of Prof, Satish Raina as the Competent
Authority and non-implementation of the directions in Jyotshana
Sharma's case. The High Court has disposed of the writ by a consent
order. The order observed that the State Government had reconstituted
the Competent Authority by appointing two more persons on it, that the
B reconstituted competent authority shall carry on with the selection
process, and the petitioners shall have liberty to challenge the selection
if still aggrieved on any ground. Later, a committee of three acade-
micians was constituted by the Government to assist the Competent
Authority.

It was contended on behalf of the State and the selected condidates
C that the High Court did not have the competence to issllc directions to --.--
the State Government to constitute a "Statutory Body" for selections to
medical colleges. It was further urged that the observations in
Jyotshana Sharma's case were in the nature of suggestions only, and
even if those observations were taken as directions, the same had been
D complied with.

On behalf of the unsuccessful candidates it was inter alia
contended that (1) the reconstituted competent authority consisting of
three members never functioned because Shri J.P. Kesar did not join
the other two members at any stage of the selection; (2) the scrutiny was
E not done by the competent authority but by the committee appointed by
the State Government; (3) the committee appointed to assist the Compe-
tent Authority coulrl only be appointed by the Authority itself and not
by the Government; and (4) there were discrepancies in the criterion,
method and procedure of holding the entrance examination and the viva
voce.
F
Allowing the appeals tiled by the State and the successful candi-'
dates and dismissing the appeals filed by the unsuccessful candidates,
this Court.

HELD: (1) Although the doctrine of separation of powers has
G not been recognised under the Constitution in its absolute rigidity
but the Constitution makers have meticulously defined the functions y
of various organs of.the State. Legislature, Executive and Judiciary
have to function within their own spheres demarcated under the Consti-
tution. [30H; 3IA]

H (2) Judicial review is a powerful weapon to restrain unconstitu-
ASIF HAMEED v. STATE OF J~K 21

tional exercise of power by the legislature and executive. The expend- A
ing horizon of judicial review has taken in its fold the concept of
social and economic justice. While exercise of powers by the legisla-
ture and executive is subject to judicial restraint, the only check on
Court's exercise of power is the self imposed discipline of judicial
--( restraint. [3IC-D]
B
Trap v. D,;lles, 356 US 86, referred to.

(3) When a State action Is challenged, the function of the court is
to examine the action in accordance with law and to determine whether
the legislature or the executive has acted within the powers and
functions assigned under the Constitution and if not, the court must
strike down the action. While doing so the court must remain within its C
self-imposed limits. [32B]

(4) While exercising power of judicial review of administrative
action, the court is not an appellate authority. The Constitution does not
permit the court to direct or advise the executive in matters of policy or D
to sermonize qua any matter which under the Constitution lies within
the sphere of legislatnre or executive, provided these authorities do not
transgress their constitutional limits or statutory powers. [32C]
.. .}
(5) The High Court's direction for constituting "Statutory Inde-
pendent Body" obviously mean that the State legislature must enact a E
law in this respect. The Constitution has laid down elaborate pocedure
for the legislature to act thereunder. The legislature is supreme in its
own sphere under the Constitution. It is soletY for the legislature to
consider as to when and in respect of what subject matter the laws are to
be enacted. No directions in this regard can be issued to the legislature
by ihe courts. The High Court was, therefore, patently in error in F
issuing directions in Jyotshana Sharma's case and reiterating the same
in the judgment under appeal. [33C-D]

Narender Chand Hem Raj & Ors. v. Lt. Governor, Union Terri-
tory, Himachal Pradesh & Ors., [1972] 1 SCR 940 and State of
Himachal Pradesh v. A parent of a student of medical college, Simla & G
Ors., [1985] 3 SCC 169, referred to.

(6) The .Legislature of Jammu & Kashmir having not made any
law pertaining to medical education the field is exclusively to be
operated by the executive under Article I6i of the Constitution of India
read with section 5 of Jainmu & Kasbmir Constitution. [34F) H
22 • SUPREME COURT REPORTS [1989] 3 S.C.R.

A (7) When the Constitution gives power to the executive Govern-
ment to lay down policy and procedure for admisssion to medical
colleges in the State, then the High Court has no authority to divest the
executive of that power. [34F-G I

(8) The procedure for selection laid down by the executive as well
B as the selection are always open to judicial review on the ground of 'r
unreasonableness or on any other constitutional or legal infirmity. [34H]

~r
(9) The State Government have substantially complied with the
directions of the High Court by issuing orders constituting the Compe-
tent Authority and providing for method and elaborate procedure for
making selections to the medical colleges. [35F] -y
c ,
(IO) The three members authority was not a statutory authority.
It was entrusted with the functions of executive nature. The mere fact
that one member did not participate in the selection does not ipso facto
render the selections illegal. [36C-D I
D
United Commercial Bank Ltd. v. Their Workmen, [1951] SCR
380, distinguished.

(11) In the absence of any statutory provision to the contrary,
,;..,
it was perfectly legitimate for the authority to function with two
E members. [37C-D]
~
Avadh Bihari Sinha v. University of Bihar, (C.A. 1650/67 decided
by this Court on 4.1.1968, distinguished.

(12) Selection of candidates for admission to medical colleges ~-
F does not involved performance of any judicial or quasi-judicial func-
tions. [36H]

(13) The purpose of appointing a committee was to assist the
competent authority. The scrutiny having been approved by the compe-
tent authority, it cannot be said that the competent authority abdicated
G its powers to the committee. [37H; 38A]
y
'.
(14) The objective test for the entrance examination and viva
voce for admission to the MBBS course in the medical colleees of
Jam mu & Kashmir was the accepted method for selection. [39G I
~

H Kaushal Kr. Gupta v. State of Jammu &·Kashmir, [1984] 3 SCR
ASIF HAMEED v. STATE OF J&K [KULDIP SINGH] 23

407 and Atul Khullar v. State of Jammu & Kashmir, [1986) Supp. SCC A
225, referred to.

(15) There is no material on the record to show that the pro-
cedure followed to fill the reserved/general vacancies has resulted in
excessive representation to the reserve category. {40G I
B
(16) It was open to the authority to either fix the minimum
percentage· of marks in the written test for providing eligibility or to
indicate the qualifying cut-off line by calling candidates for viva voce in
relation to the number of vacancies. [4 IB I

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2711 C
of 1989 etc. etc.

From the judgment and order dated 9.12.88 of the Jammu &
Kashmir High Court in WP. No. 1304 of 1988.

G.L. Sanghi, Prithvi Raj, M.H. Baig, Anil Dev Singh, B.Sen, D
D.D. Thakur, Altaf Ahmed, A.D. Singh, H.D. Pathak, D.C. Raina,
Vijay Lakshimi Menon, S.K. Bhattacharya, Salman Khurshid, LR.
Singh, R.C. Gandhi, P.D. Sharma, P.S. Shroff, S.S. Shroff, S.A.
- .J, Shrooff, Ramesh C. Pathan, S. Joginder Singh, Jaswant Singh
... Kotwal, E.C. Agarwala, Ms. Purnima Bhatt, A.P. Aggarwal, Atul
Sharma, V.K. Gupta, D.B. Sawhney, B.B. Sawhney, R. S~tish, S.S. Ii.
Lehar, Dalveer Bhandari, Bhim Singh, R.C. Pathak, Suhail Dutt, Ms.
V. Menon, Ms. Indra Sawhney, Subhash Sharma and Anil Vaidhya for
the appearing parties.

-{. The Judgment of the Court was delivered by
F
KULDIP SINGH, J. Special Leave is granted in all these
petitions .

.The selection to the MBBS/BDS course for the session 1988-89
in the two Government medical colleges of Jammu & Kashmir has
been set aside in a bunch of writ petitions by a Division Bench -of G
Jammu · & Kashmir High Court on the following grounds:

(J) The selection was not held in accordance with the directions
of the said court given in an earlier case Jyotshana Sharma
and Ors., v. State of Jammu & Kashmir, decided on 17th of H
24 SUPREME COURT REPORTS [1989] 3 S.C.R.

April, 1987 (hereinafter called Jyotshana Sharma's case). In
A
that case the High Court directed the State Government to
entrust the selection process of the two medical colleges to a
statutory independent body and till that was done the State
Government should entrust the process of selection to such a
body which was to be free from executive influence. No
B statutory body was constituted and hence according to the
High Court the selection made by any other authority was in
. violation of the directions of the High Court and as such bad
in law.

(II) The selection was not held by the competent authority as
constituted by the order of the High Court dated 17th of
c October, 1988. Under the said order, competent authority,
was to consist of three persons. According to the High Court
all the three persons never met and all of them never
·-
scrutinised the cases of the candidates who appeared in the
enterance examination and viva voce and as such the selec-
D tion was invalid.

The State of Jammu & Kashmir and the selected candidates have.
challenged the above judgment of the High Court in these appeals. l
Some of the unsuccessful petitioners before the High Court have also ,/\., !
raised various additional grounds of challenge to the selection. ,.
E
Although various arguments have been advanced by the learned :;:.--
counsel for the parties which we propose to examine but the primary
question for consideration in these appeals is whether the High Court
has the competence to issue directions to the State Government to
constitute "Statutory Body" for selections to medical colleges and ~
F whether the selection made by any other authority is invalid on that
ground alone. (/II

The necessary facts to understand the controversy are as under.

Jyotshana Sharma and a number of other unsuccessful candi-
G dates for admission to the two medical colleges of Jammu & Kashmir
for the year 1986-87 challenged the selection by way of large number of ·~
writ petitions. A Division Bench of the High Court by its judgment
dated 17th April, 1987 upheld the selection in general but allowed
some individual writ petitions on different grounds. The Bench, after
adjudicating upon the points involved in the writ petitions, made the
H following observations:
ASIF HAMEED v. STATE OF J&K [KULDIP SINGH! 25

"Before parting with these writ petitions, we would like to
A
say something about the process of selection and about the
safeguards required to be made by the authorities about
the reservation of some categories.

In future State Government shall entrust the selection
process of the two medical colleges to a statutory indepen- B
dent body who will be vested with the power to conduct
examination of written as also of viva voce."

" ... The need to have a statutory body for making the

,..
)
selection and for conducting the competitive test has arisen
because the candidates every year and this year also had
made grievance about the General Department being C
associated with the selection process of the candidates. It is
generally felt that General Department is a branch of the
administration & is under the direct influence of the
Administration. Therefore, fairness and objectivity of
selection cannot be achieved unless selection is ensured to D
be done by some independent body free from executive
influence. We have considered this argument & examined
the matter in its all aspects ...... "

" ... Therefore, it is ideal that an independent statutory
body is constituted for conduct of entrance test for the E
MB BS/BOS course in the State which body shall be kept
free from executive influence. Till that is done, State may
entrust the process of selection to such a body which will be
free from executive influence. At any rate we do not
approve Training Branch, or any other department of the
State Government under the control of Administration or F
associate with the process of selection for the MBBS/BDS
course in the State Medical Colleges. Selection Committee,
till a statutory body is constituted, shall consist of such
persons who are academicians of high calibre and with the
process of selection principals of the two medical colleges
shall necessarily be associated. G

For evaluation of the answer scripts till a scientific
method of setting up of independent statutory body is
evolved, as suggested by us, the evaluation of answer scripts
shall be made through such examiners who shall be
appointed in each subject in consultation with the Vice H
26 SUPREME COURT REPORTS [1989] 3 S.C.R.

A Chancellors of the two Universities of Jammu & Kashmir."

Consequent upon the aforesaid directions the State Government
issued an order by a notification SRO 291 dated 18th of May, 1987
called the Jammu & Kashmir Government Medical Colleges (selection
B of candidates for admission to first year MBBS/BDS course and other
professional courses) Procedure Order, 1987. (hereinafter called SRO T
291).

Clauses 2(b ), 2( c), 3 and 4 of the Order are as under:

"2(b) Competent Authority" means the authority consti-
c tuted by the Government for the purpose of making selec- _
lion to the professional courses." ;

"2(c) Committee" means the committee of experts consti-
tuted by the Competent Authority for the purpose of assist-
ing the Competent Authority making selection to profes-
D sional courses."

3. "PERCENTAGE FOR FILLING UP SEATS

The available seats shall be filled up:
E i) From open merit category 50%
ii) From reserved category 50%,,

4. "MERIT

The inter-se merit of the candidate shall be determined on the -(-·
F
basis of the following:

i) written test 85 points
ii) viva voce 15 points
Total 100 points

G The points earmarked for viva voce will be sub-divided into the
following factors: -~

i) Aptitude 8 points
ii) G.K.G.I. 7 points
Total 15 points"
H
ASIF HAMEED v. STATE OF J&K IKULDIP SINGH] 27

On 18th of May, 1987 the Government also issued another Order A
called "The Competent Authority" functions, Conditions of Service
and Powers (Order) of 1987 (hereinafter called 1987 Order). Clauses
I, 2 and 5 of the Order are reproduced as under:

I. "Qualification for appointment
B
A person shall not be qualified for appointment as Com-
petent Authority unless he is educationist of repute hav-
ing served the State for a period of not less than 25
years."

2. "Resignation and removal
c
(a) A person appointed as the ·competent Authority
under clause (b) of the said Order may, by notice in
writing under his hand addressed to the Government
resign his office.
D
(b) The competent authority shall not be removed from
his office except by an order made by the Government
on the ground of proved misconduct or incapacity after
an enquiry, made in which the competent authority had
been informed of the charges against him and given a
reasonable opportunity of being heard in respect of E
those charges."

5. "Powers and Duties

(i) The Competent Authority shall have the following
powers and duties namely: F

(a) To conduct written tests and hold interviews
and take such other steps as may be considered
necessary for the purpose of making selection to the
professional courses.
G
(b) To select and invite experts and appoint
examiners for the purpose specified in clause (a).

(c) To appoint committees of persons specified in
clause (b) for the purpose of assisting the Compe-
tent Authority in making selection to professional H
course.
28 SUPREME COURT REPORTS {1989] 3 S.C.R.

(dJ To incur such expenditure as shall be necessary
A
for the due discharge of his powers under this para,
out of the funds placed at his disposal by the
Government from time to time.

(ii) Subject to the orders issued by the Government in
B this behalf from time to time the competent autho-
rity shall be fully independent for exercise of the
powers vested in him in this paras".

Thereafter under SRO 291 one Shri Salish Raina, retired princi-
pal, S.P. College, Srinagar, was appointed as the Competent Author-
ity on 19.5.1987.
c
Meanwhile the selection to the medical colleges for the year
1987-88 was also ahallenged in ii number of writ petitions. The judg-
ment was delivered in Farooq Ahmed Bacha and others v. State of
Jammu & Kashmir, and connected petitions on 10th of June, 1988.
D Both the Judges constituting the Bench, differed and as such by
formulating points of difference the case was referred to a third Judge.
The main challenge in Bacha's case was to Government notification
SRO 460A which provided 50% reservations for female candidates.
,A._
While Bacha's case was pending before the third Judge, the pro-
E cess of selection for admission to the medical colleges for the session
1988-89 had commenced and almost completed. The written test was
held on 7th and 8th of August, 1988 and the result was published on
25th of August, 1988. The viva voce test was held from 29th August,
1988 to 7th of September, 1988. While the viva voce test was going on,
a Bunch of writ petitions including Rajeev Mahajan & others v. State of -{-
F Jammu & Kashmir, were filed in Jammu & Kashmir High Cuort chal-
lenging the appointment of Prof. Satish Raina as competent authority
and non-implementation of the directions in Jyotshana Sluirma's case.
It was prayed that the writ petitioners be declared to have qualified the
written test and they be called for viva voce.

G While these petitions were pending, the State Government
superseded the Order dated 19th of May, 1987 appointing Prof. "'(
Satish Raina as competent authority and instead issued a fresh Order
dated 15.9.1988 reconstituting the competent authority consisting of
Dr. Aga Ashraf Ali, Mr. J.P. Kesar and Prof. Salish Raina. The writ
petitions Rajeev Mahajan and others v. State of Jammu & Kashmir &
H Ors., came up for hearing on 17th of October, 1988 and the High
ASIF HAMEED v. STATE OF J&K (KULD!P SINGH] 29
·-i
' Court disposed off the writ petitions by a consent ·order, which is as A
under:

"It has been pointed out that Government have issued
order No. 1347-GD of 1988 dated 15.9.1988 reconstituting
the Competent Authority in supersession of Government B
Order No. 923-GD of 1987 dated May 19, 1987 consisting
of (1) Dr. Aga Ashraf Ali (2) Shri J.P. Kesar and (3) Prof.
Salish Raina.

As agreed to by the learned counsel for both the sides, the
selection process for the selection of candidates for admis-
sion to !st year MBBS/BDS course 1988-89 shall be carried C
out by the above said reconstituted competent authority
after scrutinizing all the cases of the candidates who
appeared in the entrance examination. Petitioner shall
however have liberty to challenge the selection if he still
feels aggrieved on all the grounds which are available to
him. D

Considering the above said agreed order, we dispose of the
petition and order accordingly. The stay order passed
earlier shall stand vacated and the connected CMPs dis-
posed of."
E
On 22nd October, 1988 a committee consisting of Prof M.Y.
Tawana, Retired Controller of Examination, University of_Kashmir,
Dr. Y. Singh, Prof. of Physics, University of Kashmir and Dr. Abdul
Azim, Reader in Mathematics, University of Kashmir, was constituted
. -{ to assist the competent authority.
I F
On 27th of October, 1988 list of selected candidates to the
MBBS/BDS course for the session 1988-89 was published. Thereafter,
Rajeev Mahajan and number of other unsuccessful candidates started
second round of litigation by filing writ petitions in the High Court on
29th October, 1988.
G
"r While the second batch of petitions was pending before the High
Court, on 21st November, 1988 the learned Chief Justice in the capa-
city of a third Judge, delivered judgment on the reference in Farooq
Bacha's case. The learned Chief Justice in the last para of judgment
observed as under:
H
30 SUPREME COURT REPORTS [1989] 3 S.C.R.

"Before parting with the case and even at the cost of repeti-
A
tion, I would like to emphasize on the state government
that to ensure fairness in the selection to the professional
colleges, an autonomous independent statutory body, with
security of tenure for its members, should be created ex-
peditiously, to function as far as possible, on the lines sug-
B gested by the Division Bench in Jyotshana Sharma's case
and the stop-gap arrangement made by reconstituting the
competent authority comprising three gentlemen, as
noticed earlier, should not be considered as a substitute for
it. In the interim period, the reconstitutea Competent
Authority should also function keeping in view the
guidelines given by the apex court and this court in various
c judgments, including the ones in Jyotshana Sharma's case ·1
and the submission of Mr. B.A. Khan."

The batch of writ petitions Rajeev Mahajan & Ors. v. State of
Jammu & Kashmir & ors. was finally heard by the High Court on 29th
D of November, 1988 and the judgment was pronounced on 9th of
December, 1988. The High Court allowed the writ petitions holding
that the list of selected candidates was liable to be quashed on the
ground of its having been issued in violation of court's directions in
Jyotshana Sharma's case. The High Court, however, directed that the A.
respondent-state should reconstitute the competent authority within a
E period of 2 weeks for finalising the selection for the session 1988-89 on
the basis of written test already conducted excluding the viva voce. It
was further directed by the High Court that the marks obtained by the
candidates in the Science subjects of the qualifying examination may
be equated with 15 points reserved for viva voce and be awarded to the
candidates proportionately according to their merit in the Science
F subjects in the qualifying examination. Such points be added in the
points obtained by the candidates in the written entrance test already
conducted and thereafter the merit list of the candidates be prepared.
The High Court has held the directions in Jyotshana Sharma's case to
be of binding nature and it reiterated the same by issuing a mandamus.
The present appeals are against the aforesaid judgment of the Jammu
G & Kashmir High Court.

Before adverting to the controversy directly involved in these
appeals we may have a fresh look on the inter-se functioning of the
three organs of democracy under our Constitution. Although the
doctrine of separation of powers has not been recognised under the
H Constitution in its absolute rigidity but the Constitution makers'have
ASIF HAMEED v. STATE OF J&K [KULDIP SINGH] 31
-"'"'(
meticulously defined the functions of various organs of the State.
A
Legislature, Executive and Judiciary have to function within their own
spheres demarcated under the Constitution. No organ can usurp the
functions assigned to another. The Constitution trusts to the judgment
of these organs to function and exercise their discretion by strictly
following the procedure prescribed therein. The functioning of democ-
~ racy depends upon the strength and independence of each of its B
organs. Legislature and executive, the two facets of people's will, they
have all the powers including that of finance. Judiciary has no power
over sword or the purse nonetheless it has power to ensure that the
-;,\_aforesaid two main organs of State function within the constitutional
· limits. It is the sentinel of democracy. Judicial review is a powerful
weapon to restrain unconstitutional exercise of power by the legisla-
.'-1' · ture and executive. The expanding horizon of judicial review has taken c
· in its fold the concept of social and economic justice. While exercise of
powers by the legislature and executive is subject to judicial restraint,
the only check on our own exercise of power is the self imposed disci-
pline of judicial restraint.
D
Frankfurter, J. of the U.S. Supreme Court dissenting in the con-
troversial expatriation case of Trap v. Dulles, 356 US 86 observed as
under:

"All power is, in Madison's phrase, "of an encroaching
nature". Judicial power is not immune against this human E
weakness. It also must be on guard against encroaching
beyond its proper bounds, and not the less so since the only
restraint upon it is self-restraint ....... .

Rigorous observance of the difference between limits
of power and wise exercise of power-between questions of F
authority and questions of prudence-requires the most
alert appreciation of this decisive but subtle relationship of
two concepts that too easily coalesce. No less does it
require a disciplined will to adhere to the difference. It is
not easy to stand aloof and allow want of wisdom to prevail
to disregard one's own strongly held view of what is wise in G
the conduct of affairs. But it is not the business of this
Court to pronounce policy. It must observe a fastidious
regard for limitations on its own power, and this precludes
the Court's giving effect to its own notions of what is wise
or politic. That self-restraint is of the essence in the obser-
vance of the judicial oath, for the Constitution has not H
32 SUPREME COURT REPORTS [1989] 3 S.C.R.

authorized the judges to sit in judgment on the wisdom of (
A
what Congress and the Executive Branch do."

When a State action is challenged, the function of the court is to
examine the action in accordance with Law and to determine whether
the legislature or the executive has acted within the powers and func-
B lions assigned under the Constitution and if not, the court must strike-
down the action. While doing so the court must remain within its
self-imposed limits. The court sits in judgment on the action of a
coordinate branch of the Government. While exercising power of judi-
cial review of administrative action, the court is not an appellate
authority. The Constitution does not permit the court to direct or
..}- -
advise the executive in matters. of policy or to sermonize qua any
C matter which under the Constitution lies within the sphere of legisla-
ture of executive, provided these authorities do not transgress their
constitutional limits or statutory powers.

Now coming to the judgment under appeal the High Court says
D that its directions issued in Jyotshana Sharma's case have not been
complied with thereby rendering the state-action in making selections
for admission to the medical colleges invalid. To examine the High
Court reasoning we have to see as to which of the three organs of the
state is entrusted, under the Constitution, with the function of taking a
policy decision regarding management and admissions to medical col-
E leges in the State. Both the medical colleges at Jammu and Srinagar
are Government institutions. Entry 25 List IIl of Seventh Schedule,
Article 246(2) and Article 162 of the Constitution of India and Section
5 of the Constitution of Jammu & Kashmir which are relevant, are
reproduced hereinafter:

F "Entry 25. Education, including technical education,
medical education and universities, sub.Ject to the provi-
sions of Entries 63, 64, 65 and 66 of List I; vocational and
technical training of labour"

"Art. 246. Subject-matter of laws made by Parliament and
G by the Legislatures of States-(2) Notwithstanding anyth-
ing in clause (3), Parliament, and, subject to clause (1), the
Ligislature of any State also, have power to make laws with
respect to any of the matters enumerated in List III in the
Seventh Schedule (in this Constitution referred to as the
"Concurrent List")."
H
ASIF HAMEED v. STATE OF J&K [KULDIP SINGH] 33

"Art. 162. Extent of executive power of State-Subject to A
the provisions of this Constitution, the executive power of
a State shall extend to the matters with respect to which the
Legislature of the State has power to make laws."

"Section 5. Extent of executive and legislative power of
the State - The executive and legislative power of the B
State extends to all matters except those with respect to
which Parliament has power to make laws for the Stat~
under the provisions of the Constitution of India."

The High Courts directions for constituting "Statutory Indepen-
dent Body" obviously mean that the State legislature must enact a Law c
in this respect. The Constitution has laid-down elaborate procedure
for the legislature to act thereunder. The legislature is supreme in its
own sphere under the Constitution. It is solely for tthe legislature to
consider as to when and in respect of what subject matter, the laws are
to be enacted. No directions in this regard can be issued to the legisla-
ture by the courts. The High Court was, therefore, patently in error in D
issuing directions in Jyotshana Sharma's case and reiterating the same
in the judgment under·appeal.

This Court in Narender Chand Hem Raj & Ors. v. Lt. Governor,
Union Territory, Himachal Pradesh & Ors., [1972] 1 SCR 940
observed as under: E

"The power to impose tax is undoubtedly a legislative
power. That power can be exercised by the legislature
directly or subject to certain conditions, the legislature may
. -f. delegate that power to some other authority. But the
F
exercise of that power whether by the legislature or by its
delegate is an exercise of a legislative power. The fact that
the power was delegated to the executive does not convert
that power into an executive or administrative power. No
court can issue a mandate to a legislature to enact a parti-
cular law. Similarly no court can direct a subordinate
legislative body to enact or not to enact a law which it may G
be competent to enact."

In the State of Himachal Pradesh v. A parent of a student of
medical college, Simla and ors., [1985] 3 SCC 169 this court held ·as
under:
H
34 SUPREME COURT REPORTS [1989] 3 S.C.R.

" ... The directions given by the Division Bench was really
A
nothing short of an indirect attempt to compel the State
Government to initiate legislation with a view to curbing
the evil of ragging, for otherwise it is difficult to see why,
after the clear and categorical statement by the Chief Sec-
retary on behalf of the State Government that the Govern-
B ment will introduce legislation if found necessary and so
advised, the Division Bench should have proceeded to
again give the same direction. Thus the Division Bench was
clearly npt entitled to do. It is entirely a matter for the
executive branch of the Government to decide whether or -../'-
not to introduce any particular legislation. Of course, any
member of the legislature can also introduce legislation but
c the court certainly cannot mandate the executive or any
member of the legislature to initiate legislation, howsoever
necessary or desirable the court may consider it to be. That
is not a matter which is within the sphere of the functions
and duties allocated to the judiciary under the Constitu-
D tion ...... "

" . . . But at the same time the court cannot usurp the
fonctions assigned to the executive and the legislature
under the Constitution and it cannot even indirectly
require the executive to introduce a particular legislation or
E the legislature to pass it or assume to itself a supervisory
role over the law-making activities of the executive and the
legislature."

The legislature of Jammu & Kashmir having not made any law

F
pertaining to medical education the field is exclusively to be operated
by the executive under Article 162 of the Constitution of India read
t·
with Section 5 of Jammu & Kashmir Constitution. When the Constitu-
tion gives power to the executive Government to lay-down policy and
procedure for admission to medical colleges in the State then the High
Court has no authority to divest the executive of that power. The State
Government in its executive power, in the absence of any law on the
G subject, is the competent authority to prescribe method and procedure
for admission to the medical colleges by executive instructions but the
High Court transgressed its self imposed limits in issuing the aforesaid
directions for constituting statutory authority. We would make it clear
that the procedure for selection laid-down by the executive as well as
the selection is always open to judicial review on the ground of
H unreasonableness or on any other constitutional or legal infirmity.
ASIF nAMEED v. STATE OF J&K [KULDIP SINGH! 35

Mr. Altaf Ahmed, learned Advocate General, Jammu &
A
Kashmir, appearing for the State, Mr. M.H. Baig and Mr. G.L.
Sanghi, learned counsel appearing for the selected candidates, have
contended that the observations in Jyotshana Sharma's case were in
the nature of suggestions by the Court. It is further argued that even if
those are taken to be directions, the same have been complied with by
the State Government. There was no issue before the court in B
Jyotshana Sharma's case regarding method or procedure adopted by
the Government for making selections. None of the parties argued for
__ , Statutory Body on the ground of Jack of confidence in the executive. A
~- bare reading of the judgment shows that the Bench, before parting
with the judgment, laid-down some guidelines for the Government to
follow. The learned Chief Justice in his judgment in Farooq Bacha's
--r . case, reiterated the necessity of having an autonomous independent c
' statutory body "on the lines suggested by the Division Bench in
Jyotshana Sharma's case." The learned Chief Justice rightly treated
the Bench's observations as suggestions and we agree with the same.
There is also force in the contention that assuming the said suggestions
to be the directions, the same have been complied with. SRO 291 was D
issued as a consequence of the judgment in Jyotshana sharma's case.
The notification specifically states "whereas a Division Bench of the
High Court by judgment and order 17th April, 1987 inter-alia made
certain suggestions for improving the system for making admission to
MBBS/BDS course in the State, now, therefore, in deference to the
observations of the High Court of Jammu & Kashmir ..... the E
Government hereby makes the following order ..... " Mr. Bhim
<. Singh, learned counsel appearing for the unsuccessful candidates,
however, argued that the principals of two medical colleges have not
been associated with the selections. That may be so but we are
..,_,_
.. -1 satisfied that SRO 291 read with 1987 Order issued by the State
Government which provide method and elaborate procedure for mak- F
ing selections to the medical colleges of J ammu & Kashmir substan-
tially comply with the directions of the High Court.

Mr. Bhim Singh, Mr. Anil Dev Singh, Mr. D.D. Thakur and Mr.
Salman Khurshid, the learned counsel appearing for the unsuccessful
candidates have vehemently contended that the reconstituted competent G
authority consisting of three members never functioned because Shri
J.P. Kesar did not join the other two members at any stage of the
selection process·. It was also contended that the scrutiny as per con-
sent order dated 17th October, 1988 was not done by the competent
authority ·but by the committee appointed by the State Government.
Before examining these contentions we may notice that the competent H
36 SUPREME COURT REPORTS [1989] 3 S.C.R.

authority was reconstituted on 15th September, 1988 by the State
A
Government and it was approved by the High Court in the consent
order dated 17th of October, 1988. The written test had taken place on
7th and 8th August, 1988 and the result thereof was published on 25th
of August, 1988. The viva voce test was held from 29th August, 1988 to
7th September, 1988. The whole of the process of selection was almost
B complete on 17th October, 1988 when the consent order reconstituting
the competent authority was passed by the High Court. The competent
authority was only to scrutinize the selections. There are no specific
allegations of favouritism or arbitrariness in the cond11ct of entrance
examination or the viva voce.

We may now examine the submissions. It is an admitted fact that
c Mr. J.P. Kesar never functioned as part of competent authority. The
scrutiny and compilation of the selections was done by two members
namely Dr. Aga Ashraf Ali and Prof. Satish Raina. The three member
authority was not a statutory authority. It was entrusted with the
functions of executive nature. The mere fact that one member did not
D participate in the selection does not ipso facto render the selections
illegal. Mr. Anil Dev Singh disputed the validity of selection placing
.reliance on the United Commercial Bank Ltd. v. Their workmen,
[ 1951] SCR 380. In this case Central Government had constituted an
Industrial Tribunal for the adjudication of industrial disputes in bank-
ing companies in exercise of its powers under Section 7 of the Jndus-
E trial disputes Act, 1947. The tribunal was to consist of three members.
One of the members did not function on the tribunal for a period of
about three months. By a majority judgment this Court held that the ->
two remaining members were not a duly constituted tribunal and any
proceedings in the absence of the third member without reconstituting
the tribunal were without jurisdiction. This Court, construing the pro-
F visions of Sections 7 and 8 of Industrial disputes Act, 1947 read with
Rule 5 of the Industrial Disputes Rules, 1949, came to the conclusion
that when a vacancy occurred it was obligatory on the Government to
notify its decision as to whether it intended to fill up the vacancy or
not, and if the Government decided not to fill up the vacancy, a notifi-
cation under Section 7 of the Act was essential to reconstitute the
G remaining members of the tribunal. The decision was rendered on the
construction of the relevant statutory provisions and keeping in view
the fact that the tribunal was to perform quasi-judicial functions. The
ratio of this decision is inapplicable to the committee constituted by
executive order for performing purely administrative functions. Selec-
tion of candidates for admission to medical colleges does not involve
H performance of any judicial or quasi-judicial functions. Mr. Anil Dev
ASIF HAMEED v. STATE OF J&K [KULDIP SINGH) 37

I~ Singh then relied upon Avadh Bihari Sinha v. University of Bihar,
C.A. 1650/67 decided by this Court on 4th of January, 1968. In this A
case Bihar University Regulations framed under the Bihar State
Universities Act, 1960 provided that a Board of moderators must
consist of five members of whom two rnust be external experts. Two
external experts were invited to join the Board but they declined. The
appointment of members to the Board was to be completed only after B
they were designated and had accepted their appointment. Three
members without the two external experts moderated an award which
__._)
.-l',---- was set aside by this Court. This was a case where interpreting the
statutory provisions of the regulations this Court came to the
conclusion that the constitution of the Board of moderators was not
complete without the designation and acceptance of the appointment C
by the external experts. The ratio cannot be attracted to the facts of
the present case. In the present case competent authority with three
members was constituted by an executive action. In the absence of any
statutory provision to the contrary, it was perfectly legitimate for the
authority to function with two members. Even otherwise the written
test and viva vocz having already taken place, the selection process D
was almost complete and nothing much was left for the competent
authority to do. It had only to scrutinize and finalise the selection. No
arguments were addressed and not a single circumstance was pointed
out to show any prejudice to any candidate in the scrutiny and finalisa-
tion of the selection by the authority. Mr. Altaf Ahmed fairly made all
the records available in the Court. The learned counsel for the unsuc- E
cessful candidates could not point out any prejudice or injustice to any
of them. We have, therefore, no hesitation in rejecting this contention
of the learned counsel.

~ Regarding the other attack on competent authority it is argued
that under the consent order it was the reconstituted competent F
authority which was to scrutinize all the cases of the candidates who
appeared in the entrance examination and since it was done only by
the committee the selection is vitiated. Mr. Altaf Ahmed has taken us
through the records and we find that the committee consisting of Prof.
Shafi-ud-Din, Dr. Y. Singh and Dr. Abdul Aziz scrutinized the answer
sheets of the candidates and recorded a note to this effect on 24th. of G
-r October, 1988. Thereafter the two members of the competent autho-
rity approved the said scrutiny on 25th of October, 1988. It is, there-
fore, not correct to say that the scrutiny was done only by the commit-
tee and not by the competent authority. The purpose .of appointing a
committee under SRO 291 read with 1987 Order was to assist the
competent authority. The scrutiny in this case having been approved H
38 SUPREME COURT REPORTS [1989] 3 S.C.R.

by the competent authority, it cannot be said that the competent
A
authority abdicated its powers to the committee. We, therefore, do
not see any force in this argument of the learned counsel.

B
Mr. Bhim Singh also objected to the appointment of committee
by the Government. According to him under SRO 291 the committee
could only be appointed by the competent authority. Reading SRO 291
.,.
with 1987 order it is clear that the competent authority is to function
subject to the orders issued by the Government from time to time. The
Government was therefore, within its authority to appoint the commit-
tee and no fault can be found with the same. -r
c dates All the learned counsel appearing for the unsuccessful candi-
have attacked the method and procedure of holding the entrance
-y
examination and the viva voce. Mr. Altaf Ahmed with the help of
Prof. Salish Raina, who was present in the Court and also other
officials, explained to us the way the entrance examination and the
viva voce was conducted. The entrance examination prescribed by the
D competent authority is of an objective type test. Every candidate
taking the written examination is provided with one copy of answer
sheet and one question booklet per subject. Every question paper
contains 70 questions and each question has one correct answer and
three distractors printed on the question paper itself. Every answer ,.A
sheet is a printed document in duplicate and the candidate has to write
E the answer in the space provided against the question number. The
candidate is required to put the number of what according to him is the
correct answer, on the answer sheet against the question number.
Similarly the viva voce test is also on objective basis. The candidates
are supplied with printed question cards in two lots. Lot 'A' consist of
question cards pertaining to general science for determining the -{'
F aptitude of the candidates. Lot 'B' consist of question cards pertaining
to the general knowledge to test the general ability of the candidates.
The experts are provided with necessary answer booklets which carry
the answer to a question against a particular serial number of the
question card. The candidate is asked to pick up two questions cards
one at a time from each lot. Each correct answer is awarded four
G marks in the case of lot 'A' and 3.5 marks in the case of lot 'B'. The
award is given to the candidate and recorded on the award sheet t
supplied to the experts. The award is as per answers given in the
answer booklet. The proceedings of the day including the viva voce of
each candidate is tape recorded and kept on record. The awards of the
written examination and viva voce are sent to CMC India Ltd., New
H Delhi for computerised result processing.
ASIF HAMEED v. STATE OF J&K [KULDIP SINGH] 39

The above procedure was demonstrated before us in the Court.
A
It has totaly eliminated the element of discretion and has minimised
the scope of favouritism. Mr. Altaf Ahmed fairly offered to produce
the answer sheets or to play the tape recording in respect of any candi-
date. Although Mr. Bhim Singh generally argued that there was bugl-
ing in the entrance examination and the viva voce but he could not
specifically pointout any infirmity in the whole of the process of selec- B
tion. Mr. Salman Khurshid also appearing for the unsuccessful candi-
dates has contended that in the process of selection while bringing
--1
objectivity and.reducing subjectivity the element of chance has crept
in. We would prefer a method of selection which rules out human
"°""' .. discretion and favouritism but may bring in a fraction of chance in its
operation. This very method of viva voce came for consideration
before this Court in Kaushal Kr. Gupta v. State of Jammu & Kashmir,
c
[1984] 3 SCR 407. The court o.bserved: ·
., , . .,.,

" ..... We must record our appreciation that respondents
1 to 3 have practically set at naught drawbacks and
deficiencies in oral interview as pointed out by this Court. D
The viva voce tes~ conducted must be held to be fair, free
from the charge of arbitrariness, reasonable and just
...... Undoubtedly, the expectation of the Court which
frowns upon anything arbitrary or unreasonable hai; added
to the workload of the Selection Committee. But today
when there is rush for admission to Engineering Colleges E
like the Ceaser's wife, the selection must be objective and
beyond reproach. That has been scientifically achieved in
this case. We hope that bodies charged with the difficult
task of ascertaining merits for admission will take cue from
what has been done by respondents 1 to 3 and the lead
provided by them in this field would restore faith of young F
aspirants in the system ..... "

The objective test for entrance examination and viva voce for
admission to the MBBS course in the medical colleges of Jammu &
Kashmir for the session 1984-85 was again approved by this Court in
Atul Khullar v. State of J & K, [19861 Supp. SCC 225. We see no force G
in the argument of learned counsel and uphold the selection.

Mr. Bhim Singh invited our attention to the judgment rendered
by one of the learned judges in Farooq Bacha's case to show that there
were observations adversely criticising the conduct of Prof. Satish
Raina. Mr. Bhim Singh says that since the conduct of a person was H
40 SUPREME COURT REPORTS [1989] 3 S.C.R.

A adversely commented upon by one of the learned judges, it was unfair
to entrust him with the functions of competent authority. The action of
the State Government, according to him, is not bona fide and as such
the selection is vitiated. It is correct that there are some adverse obser-
vations, but the same have not been endorsed by the learned Chief
Justice who delivered the judgment on reference. In any case all the
B parties including the unsuccessful candidates agreed to the consent "-,.
order which was passed by the High Court on 17th of October, 1988.
These candidates accepkd the appointment of Prof. Salish Raina in
the reconstituted competent authority. It was to their knowledge that .i'-
entrance examination and viva voce, which was complete before the -..{' •
consent order, was got conducted by Prof. Salish Raina. No objection
was raised to the process of selection already conducted by Prof. Salish
c Raina, rather his appointment on the reconstituted competent autho- ~,r
rity to complete the remaining process of selection was accepted by
the parties in the consent order. '

Mr. B. Sen learned counsel appearing in SLP (C) No. 1299/89
D contends that 50% seats are to be filled from general category and
remaining 50% from reserved categories. He urged that when a
reserved candidates secures merit in the first 50% seats then he is
treated as a general candidates and the seat in the reserved category
which he should have occupied is given to some other reserved candi- ~.
dates with lower points. According to him the reserved candidate who
E secures merit in both the general category and the reserved category
must consume the seat in the reserved category and not the general
category. The reservations have been provided under SRO 291 read
with SRO 272 dated 3rd of July, 1982. Reading Paras II and III of SRO
272 together it is clear that the 50% of the general category seats have
to be filled in the first instance and remaining seats are to be offered to -~"
F the reserved category thereafter. Counting the reserve candidate, who
fall within the first 50 positions, as general candidate, is thus per-
missible under SRO 272. The executive orders providing reservations
have not been challenged. There is no material on the record to show
that procedure followed to fill the reserve/general vacancies has
resulted in excessive representation to the reserve category. We,
G therefore, see no merit in the contention.

Mr. B. Sen and Mr. Bhim Singh also assailed the selections on
the ground that SRO 380 dated 7th of July, 1983 as amended by notifi-
cation dated 9th May, 1986 provides that the candidates who obtain
such minimum qualifying marks in the written test as may be fixed
H shall only be called for viva voce. It is argued that since minimum
ASIF HAMEED v. STATE OF J&K [KULDJP SINGH] 41

qualifying marks have not been fixed the selection is bad. We do not
A
agree with the learned counsel. The competent authority called candi-
dates for viva voce four times the number of seats available for
admission. It was open to the authority to either fix the minimum
percentage of marks for providing eligibility or to indicate the qualify-
ing cut-off-line by calling candidates in relation to the number of
( vacancies. In all 2921 candidates qualified in the written test out of B
which 710 candidates, four times the number of available seats, were
called for viva voce. The cut-off-line at 710 indicates the minimum
I qualifying marks. There is thus no merit in the contention.
;,,,_...
CMP 4252A/1989 in SLP(C) No. 92/1989 by one Iqbal Singh who
was a candidate for one of the seats reserved for the sportsmen!. Mr. C
Anil Dev Singh appearing for him contended that he was recom-
mended at number one in the category of sportsmen but in spite of that
he was not selected. A sportsmen has been defined under SRO 272 to
mean one who has shown outstanding ability in sports and games at
State/National level. All those candidates who fulfil the criteria fall
within the category of sportsmen, but their selection depends on the D
merit earned by the candidates in the entrance examination and the
viva voce. It is not disputed that all the candidates selected in the
sports category have higher merit than Iqbal Singh. The contention is
thus rejected.

Mr. E.C. Aggarwala appearing for unsuccessful candidate E
Shaheen Aara contended that the candidate got 73.83 points and was
bracketed with another girl who also got 73.83 points. He says in the
case of a tie, both the candidates should be selected. This contention
cannot be accepted in view of the procedure provided by the compe-
f. tent authority for this eventuality. In a case of the the inter-se merit of
the candidates is to be determined in order of preference i.e ..: F

(i) Candidate obtaining higher marks in Biology,

(ii) Candidate obtaining higher marks in Biology and Chemistry
in aggregate,
G
-~I (iii) candidate older in age to be preferred.

By adopting above criteria the other girl was rightly preferred to
Shaheen Aara. Mr. E.C. Aggarwala raised another argument that
under SRO 29150% of the available seats are to be filled from general
category. He urged that there was 191 available seats and as such 96 .H
42 SUPREME COURT REPORTS [1989] 3 S.C.R.

A seats should have gone to general category and 95 to the reserved
'r
category. According to him only 93 seats have been given to the
general category and if three more seats are added Shaheen Aara
comes within the zone of selection. On the other hand Mr. Altaf
Ahmed urged that 50% is to be counted of the local intake. According
B
to him 175 seats for MBBS and 10 seats for BDS are for the local
candidates which he meant as local-intake. According to him total
.
available seats for local-intake being 185 the general category has been
rightly given 93 seats. He urged that six additional seats have been
provided for Non Resident Defence Personnel, Para Military Defence
Personnel and Non Residents under the Government Orders. Accord-
ing to him these six seats cannot be added to the available seats which
c would remain 185. We see no illegality in taking 185 as the number of - 'r.
available seats for determining 50% for the general category.

Mr. Prithviraj in SLP (C) No. 305/89 contends that petitioner
Jyoti Kumari is at number one in the waiting list of Scheduled Caste
candidate. There are 15 seats for this category as a result of 8% reser-
D
vations. Since 50% seats have to go to female candidates out of these
15 seats, 7 have been given to men and 7 to women. The 15th seat has
been given to a male Schedule Caste candidate as he was having better
merit than Jyoti Kumari. Mr. Prithviraj contends that 8th seat should
have been given to the female candidate. There being one seat bet-
ween a male and female candidate it has been rightly given to the male
A.
E candidate with better merit.

In view of the above discussion Civil Appeals arising out of
SLP(C) Nos. 16112-57/88 and SLP(C) No. 92/89 filed by the State of
Jammu & Kashmir and the successful candidates are allowed, the
F
judgment of the Jammu & Kashmir High Court is set aside and th~
writ petitions filed by the unsuccessful candidates before the J ammu &
.-r·
Kashmir High Court are dismissed. Civil Appeals arising out of
SLP(C) No. 287 of 1989, SLP(C) No. 305 of 1989 and SLP(C) No. 1299
of 1989 filed by the unsuccessful candidates are dismissed. CMP
4252A/89 is also dismissed. There shall be no 0rder as to costs.
G R.S.S. Petitions dismissed.
-t-