Miss Payal Sawhney vs Meenakshi Suri and others

S.C. Mathur, C. J.

This Full Bench has been constituted to resolve the conflict in views expressed by two Division Benches of this Court on the constitutional

validity of categorisation made by the State Government for nominating candidates to be admitted to the Medical courses, M.B.B.S and B.D.S. in

various Medical Colleges throughout the country against the seats allocated to the State by the Central Government from the central pool. One

Division Bench has held the categorisation to be valid and the other has held it to be invalid. Judgment of the Division Bench upholding the validity

was rendered in OWP No. 995/ 1991, Pankaj Gandotra v. State of Jammu and Kashmir, connected with several other petitions of similar nature,

decided on 1081992 at Jammu. This Division Bench comprised K. K. Gupta and V. K. Gupta, JJ. Judgment of the Division Bench which

negatived the constitutional validity was rendered in OWP No. 2637 of 1991 Qazi Yusra Aslam v. State connected with several writ petitions of

similar nature decided on 1391993 at Srinagar. Before proceeding further a few facts necessary for the resolution of the conflict may be noticed.

In the aforesaid writ petitions the dispute related to the nominations made in the year 1991 for the academic Sessions 199192. For filling seats in

the Medical Colleges at Srinagar and Jammu a combined entrance examination was conducted by the Competent Authority, Entrance

Examinations. On 1971991 the Competent Authority issued notification inviting application from eligible candidates for admission to the entrance

test. Originally 175 seats were available. Later 25 more seats became available. Thus the test was to be held to select 200 candidates. The test

was held on 1491991 and 1591991, and the result was declared on 2691991. There were complaints of irregularity in the conduct of the test

which were gone into by the Competent Authority which found that some of the grievances were correct. Thereafter corrected result was declared

on 11101991. While this process of selection was going on the Central Government allocated, out of the central pool, 25 seats for admission to

the M.B.B.S. course and 4 seats for admission to the B.D.S. course, 29 seats in all. The State Government decided to make nomination from

amongst the candidates who had appeared at the test held on 1491991 and 1591991 but had failed to qualify and proceeded to formulate

categories for nominations. The categories formulated are :

(i) Children of families who had been victims of terrorism and a direct member of the family who had lost his life by an act of terrorism since the

beginning, 1990;

(ii) Children of persons who were officially engaged in encountering terrorism in hazardous circumstances or considered high on the hit list of the

terrorists;

(iii) Children of persons who were forced to abandon their profession on business or place of abode in the Kashmir valley due to conditions of

insecurity created by terrorism; and

(iv) Other category.

Seven seats were earmarked for nomination of candidates falling in category (i), nine, seven and six seats respectively for those falling in categories

(ii), (iii) and (iv).

No applications were invited from candidates desiring nomination against any of the categories. Some candidates made applications on their

own. These applications were considered and nominations were made. On the basis of the nominations, the nominees got admission in various

Medical Colleges of the country.

In both the aforesaid writ petitions the challenge was directed against the result of the test held on 14th and 15th September, 1991 as also

against the nominations made to the 29 seats allocated by the Central Government. In the present case we are not concerned with the admissions

made to the Medical Colleges situate in the State on the basis of the test held on 14th and 15th September, 1991. We are concerned only with the

admissions made to Medical Colleges outside the State on the basis of the nominations made by the State Government.

In both the writ petitions the challenge was threefold(1) the categorisation did not pass the test to reasonableness so as to be constitutionally

valid, (2) the manner of selecting candidates for nomination was faulty, and (3) in selecting candidates favouritism had been practised and persons

not qualifying under any category were nominated.

The Division Bench which decided Pankaj Gandotra's petition negatived challenges (1) and (3) but found substance in challenge (2). Despite

that it did not proceed to quash the nominations and the admissions made on the basis thereof. Instead it issued directions which were required to

be followed while making nominations in future.

Against the above judgment Puja Dulloo and others preferred special leave petitioner (Civil) 42084209 of 1993 in the Supreme Court which

came to be decided on 1531993. In their order their Lorships have referred to the ""very unsatisfactory manner in which nominations have been

made. Their Lordships have gone to the extent of saying that the manner in which all the authorities concerned with the exercise have gone about

the matter leaves the impression that some of the authorities administering the quota made themselves the beneficiaries. It appears from the order of

the Supreme Court that the plea of impermissibility of classification was also raised before their Lordships, but their Lorships did not go into the

plea as their Lordships were of the opinion that the nominations could not be sustained because of the flaw in the manner of selecting candidates.

The main flaw found by their Lordships was that no advertisement had been issued inviting applications from all the eligible candidates and holding

the selection in a clandestine manner. Because of this flaw their Lordships were inclined to quash the entire selection but refrained from doing so as

the parties presented to the Court a memorandum of agreement which did not contemplate quashing of the selection and admissions already made

but contemplated issuance of certain directions on the compliance whereof those candidates who deserved nomination in the session in question

could be given benefit in the future sessions. Their Lordships accepted the memorandum of agreement and decided the leave petition in terms

thereof.

After their Lordships had disposed of the leave petition of Puja Dulloo as above, the petitions filed at Srinagar came up for hearing before a

Division Bench comprising R. P. Sethi and A. Q. Parrey, JJ. This Bench also did not quash the selections and admissions already made but

expressed opinion on the consitutional validity of the categorisation made by the State Government and held the same to be constitutionally

impermissible. After doing this the Bench proceeded to issue directions to the State regarding the manner in which candidates will be selected in

future. A specific direction contained in paragraph (iv) of the operative portion of the judgment reads:

It is directed that in future no selection / nominations shall be made by the state on the basis of classification and categories formulated for the

benefit of children of families who had been the victim of terrorism were officially engaged in encountering terrorism and were forced to abandon

their profession or business or place of abode in the Kashmir valliy (Excepting the implementation of the judgment of the Supreme Court in Puja

Dulloo's case)

Prior to above judgment the State Government issued on 1091992 guidelines for selection of candidates for nomination, to the session 199293.

In these guidelines the first three categories of the previous guidelines were maintained with slight modifications while the fourth category was

dropped. The process of selection which had started prior to the prononcement of judgment was taken to its logical conclusion and nominations

were made and the nominees were given admission. This led to fresh litigation in this court. The petitioners in those fresh petitions naturally relied

upon the judgment of Sethi and Parrey JJ. for challenging the nominations.

Some of the fresh petitions came up before Seth J. sitting single. He passed interim rders to restrain the nominated candidates from pursuing

the course to which he or she had been admitted. The State and some of the restrained candidates have preferred Letters patent appeals in this

court and some, we have been told have approached their Lordships of the Supreme Court. These Letters patent appeals are also before us.

Through interim orders operation of the interim orders passed by the learned single Judge has been stayed.

From the above narration it would be seen that two different Division Benches not only took divergent views on the constitutionality of the

categorisation but also issued directions to the Government which were required to be followed while holding selections in future. The direction by

each Bench naturally reflected the perception of that Bench on the constitutionality of the categorisation. The State Govt. was in a predicament as

to which direction to follow.

In order to have a clear cut guidance from this Court, it moved application in LPA No.271 / 1993 filed by Payal Sawhney for referring the

case to a larger Bench. The application was allowed and the appeals filed by the State against Shazia Bashir and Meenakshi Suri were assigned to

the present Full Bench. Application was made on behalf of the petitioner in SSWP No. 161 / 1993 Sanjay Kumar Bhat and others, for that

petition being heard along with the LPA filed by Payal Sawhney. The prayer was allowed. Prayer for reference to Full Bench was made in SSWP

No. 159 / 1993 filed by Amita Raina and others also. That prayer too was allowed. Counsel in other petitions also desired hearing of their cases

by the Full Bench. This is how all the cases mentioned hereinabove have been heard together by us. Leading arguments were advanced by S / Shri

T. S. Thakur, P. L. Handoo and the learned Advocate General, Shri Bilal Nazki.

After the judgment of the Division Bench in Pankaj Gandotra's case (supra) the State Government issued Order No. 412 (TRG) of 1992

dated 1091992 which is entitled ""Jammu and Kashmir (Selection of Candidates for nomination to M.B.B.S. and B.D.S. courses to the Central

pool) Order, 1992. It is claimed that the order takes care of the directions given in Gandotra's case. Material Clauses are 3 and 4 which read as

follows:

Filing up of the seats: (1) The seats allotted to the State by the Central Government from Central pool shall be filled up from amongst the

candidates belonging to any of the following categories, namely :

A. Children of families where a parent or a direct member of the family has been killed in acts of terrorism or has been an innocent victim in cross

firing or in firing by armed forces in combating terrorism.

B. Children of such persons who are exposed to substantive risk due to their assignment mainly relating to combating acts of terrorism; added

weightage is to be given to persons who have come on the hit list of terrorist organisations.

C. Children of such families of any community who have migrated from the Kashmir valley due to the current situation and have lost their means of

livelihood including their business or use of their property.

The number or seats in each category as mentioned above shall be such as may be allotted by the Government from time to time.

Selection of candidates:

(1) The selection for nomination to aforesaid seats shall be made from amongst the candidates who have appeared in the entrance examination

conducted by the Competent Authority in the year of selection and who belong to any of the category mentioned in Clause 3 of this order.

Provided that the candidates who obtain less than 30% marks in the entrance examination conducted by the Competent Authority shall not be

eligible for consideration for nomination under this order.

Provided further the merit of such candidates who are required to be considered in terms of the order of the High Court in Pankaj Gandotra and

others v. State case and who have not appeared in the entrance excamination held in 1992 shall be determined on the basis of the merit obtained in

entrance examination held in the year 1991.

(2) The inter se merit of candidates in each category shall separately be determined on the basis of marks obtained in the examination conducted

by the Competent Authority. The candidates belonging to each category shall be separately arranged in order of merit according to the results and

shall be selected for admission by nomination against the seats available in each category.

(3) If sufficient number of candidates belonging to any category are not available the resultant seats shall be filled as mentioned in Clause 3. In case

no such candidate is available in any of the categories mentioned in Clause 3 the seats shall be filled up from open merit category.

The salient features of the order are (1) It fixes three categories from which candidates have to be selected; (2) selection for nomination is

confined to those who appear at the entrance examination conducted by the Competent Authority in the year of selection; (3) it fixes minimum

percentage of marks which a candidate must obtain at the entrance examination to fall in the zone of consideration; those obtaining less than 30%

marks are excluded from the zone; and (4) the merit position obtained by a candidate at the entrance examination is protected in the category in

which he is selected.

Since we are called upon to express our opinion only on the validity of the categorisation, we immediately come to it. A bare reading of Clause

3 shows that the Government order gives benefit of nomination to children of families who have suffered, in one form or the other, on account of

current terrorism, which has its roots in the Kashmir Valley. This is the broader classification contemplated by this clause. This broader

classification is then subjected to a further classification. The further classification is based on the degree of harm suffered by the family of the

candidate.

Protection of life and liberty of a citizen is the sacred obligation of the State. It is this principle that the State pays compensation, either on its

own, or under orders of the Court, when some one dies or suffers injury as a result of train, bus or air accident or mob fury. Implicit in the

obligation of the State to protect life and liberty of the citizens is the obligation to contain terrorism. When a citizen is victim of terorism, obviously

the State has failed in the discharge of its obligation mentioned herein. For this failure the State may compensate the citizen in various ways. It may

offer cash compenstion. It ,may offer job opportunities to the victim or to the members of his family. It may offer facilities in education. It may offer

facilities of admission to professional courses. One facility may be to the exclusion of the others or there may be combination of facilities. In the

present case the State has chosen to grant facility of admission to professional course. This is one way of compensating the victims. In our opinion

there is nothing inherently wrong in the State compensating victims or their families. Once this proposition is accepted it follows automatically that

victims of terrorims of their families constitute a distinct class which can be subjected to preferential treatment.

The categories of victims of terrorism who are intended to be given preferential treatment are elaborated in subclauses (A), (B) and (C). It is to

be seen whether the persons intended to be given preferential treatment and the events which will qualify for such treatment have been specified

with sufficient definiteness so as to eliminate chances of ambiguity.

SUBCLAUSE (A)

Regarding the events subclause (A) uses two expressions (1) death and (2) victim. Death is an event about which there can be no uncertainty. If

the expression victim also connotes death there will be no ambiguity about the event. In Black's Law Dictionary sixth Edition the term 'Victim' is

defined thus""The person who is the object of a crime or tort, as the victim, as the victim of a robbery is the person robbed. Person who court

determines has suffered pecuniary damages as result of defendant's criminal activities :"" Killing a person is crime. Therefore the term 'victim' does

not exclude ""killing"", but apart from killing it includes other things also. It covers pecuniary loss too. Therefore if we go by the dictionary meaning

alone, it may be possible to argue that subclause (A) does not specify with certainty the class of persons who will be entitled to beneficial

treatment. But it is a settled principle of interpretation that words take colour from the words in whose company they occur. In subclause (A) the

word ""Victim"" occurs in the company of the words ""killed"", ""terrorism"", ""cross firing"", ""armed forces"" and ""combating"" of particular significance is

the word ""killed"". The company and the context in which the word victim has been used leaves no manner of doubt that the terms as used in the

subclause refers to no other event except the event of being killed. Thus the event contemplated by subclause (A) is certain and definite. Let me

now examine the persons sought to be covered.

Regarding the persons sought to be covered the subclause uses two expressions (1) parent, and (2) a direct member of the family. In its ordinary

connotation the word ""parent refers to father and mother. About the term ""parent"" therefore there is no ambiguity. The term ""family"" of course has

wider connotation and is capable of more than one meaning. In Black's Dictionary(supra)it is said 'The meaning of the word ""family"" necessarily

depends on field of law in which word is used, purpose intended to be accomplished by its use, and facts and circumstances of each case .... Most

commonly refers to group of persons consisting of parents and children; father, mother and their children; immediate kindred, constituting

fundamental social unit in civilised society A collective body of persons who live in one house and under one head or management. A group of

blood relations: All the relations who descend from a common ancestor, or spring from a common root.

In Words and Phrases. Permanent Edition, Volume 16 the following statement is contained at page 303 regarding the connotation of the term

family

The, father, the mother, and the children, ordinarily constitute a ""family"". A family constitutes all who live in one house under one head

At page 305 it is stated

The word ""family"" is narrowed or enlarged in some instances, to include near kindred in others heirs, or to embrace relations by marriage.

From the above statements the proposition deducible may be stated thus : The expression ""family"" has variable connotation. It may denote a

restricted group of relations. It may also denote an extended group of relations. When it will denote a restricted group and when it will denote an

extended group depends upon the context in which the word is used and the words in whose company the expression appears. Shorn of anything

else, it includes only the father, mother and children. It is in this context that the meaning of the word ""family"" as used in subclause (A) has to be

ascertained. The author of the instrument in question has expressed his intention with sufficient clarity by prefixing the word ""direct"" to the

expression ""member of the family"". The use of the word ""direct"" shows that the author wanted to give resticted meaning to the word ""family"" and

not extended meaning. The intention of the author is not to distribute largesse, but to mitigate the trauma suffered by family of the candidate. So

appreciated the word ""family"" as used in subclause (A) covers, only the father, the mother, the brothers and sisters of the candidate. These persons

are definite and there can be no ambiguity, about them.

About the event, one thing more deserves to be stated. It is not every killing that qualifies for the benefit. The killing must be related to terrorism.

Once it is related to terrorism, the entitlement is available irrespective of the fact whether killing resulted from an act of the terrorists or from an act

of the armed forces. In either case the member of the family who has been killed must be innocent. The benefit is not available if the said member

was himself a terrorist.

In view of the above, I am of the opinion that subclause (A) is not vague either in respect of the event which qualifies for preferential treatment or in

respect of the person whose killing so qualifies. Further, neither the selection of the event is arbitrary nor the selection of the member of the family

whose killing qualifies for the benefit.

SUBCLAUSE (B)

I now proceed to consider the contents of subclause (B). This subclause is milder in respect of the event and restricted in respect of the victims.

The event is not actual commission of crime. Even exposure to risk of being subjected to crime qualifies for the benefit. The term ""risk"" is preceded

by the word ""substantive"". The use of the qualifying word shows that the risk must be real and not imaginary. The persons who may be exposed to

such risk are only two, namely the father and the mother of the candidate. Brothers and sisters and other relations of the candidate are excluded.

Not every exposure to risk qualifies for the benefit. The risk should arise from assignment of duties. The duty assigned should relate to combating

acts of terrorism. The significant word used in the subclause is ""combating"". In Black's Dictionary (supra) the word ""combat"" is defined as ""a

forcible encounter between two or more persons; a battle; a duel; to fight with; to struggle against.

Words and Phrases (supra) Vol. 7 A contains this statement) ""Combat is a fight, a contest, a struggle for supremacy, a duel combat connotes

physical violence.

In view of the above statements it may appear at first blush that the subclause will be attracted only when the assigned duty is such as may involve

the father or mother in acts of physical violence, meaning thereby that those involved in directing combating operations will be excluded. If this

interpretation is given higher officers who only give directions to the subordinate staff actually involved in combating operations will be excluded

although they may be the most sought after targets of the terrorists. A closer scrutiny of the subclause will show that the directors of combating

operations are not excluded. This flows from the use of the expression ""mainly related to"" before the words ""acts of terrorism"". Therefore the

assignment of a duty which involves giving directions to those who are involved in physical acts of combating operations also qualifies for the

benefit. However, those who merely formulate policies for combating terrorism are excluded from the purview of the subclause.

In view of the above discussion an Army Commander who formulates strategy for combating terrorism and issues directions to his subordinate

staff regarding implementation of the strategy will be covered by the subclause. Similarly superior officers of the para military forces doing identical

work will also be covered by this subclause, as also the members of police force assigned identical or similar duties. Home Secretary to the

Government who may be involved in taking policy decision will however not be covered by subclause. His main job is not combating terrorism.

His main job is generally to manage the cadre involved in maintenance of law and order and to formulate policies which will ensure general law and

order in the state. When terrorism spreads, law and order is disturbed. It is in this sense that combating terrorism cannot be said to be outside the

sphere of his duties. It is only a part of his duties. It is not the main part of his duties as is contemplated by the expression ""mainly"" used in

subclasue (B). If the Home Secretary falls outside the purview of subclause (B), it is obvious that the other secretaries of the Government will also

fall outside the purview of subclause.

An officer of the judicial service may deal with a case in which the accused is a terrorist and thereby his life may be exposed to risk. Such a judicial

officer will also not qualify for the benefit available under subclause (B). A Judge cannot be said to be assigned the duty of combating the acts of

terrorism. He only awards punishment to those who indulge in acts of terrorism. It is the obligation of the State to ensure law and order throughout

the State. Terrorism is different from ordinary disturbance in Law and order and requires

special machinery, special strategy and special personnel to handle it. Persons assigned the duty of combating terrorism risk their own lives in order

to save the lives of others. Such persons constitute a class by themselves. The State can expect better performance from them in the discharge of

their duty of combating the acts of terrorism if they are relieved of some of their worries about their families. The provision in subclause (B) is

therefore a son of incentive to perform better. Their better performance results in good to the public. Therefore, preferential treatment to the class

covered by Clause (B) cannot be said to be arbitrary.

From the above discussion it follows that the persons who are sought to be benefited under subclause (B) are certain and clearly identifiable. Grant

of preferential treatment to such persons is not arbitrary. Therefore, the classification contemplated by subclause (B) is reasonable.

SUBCLAUSE (C)

This clause seeks to rehabilitate families who have been uprooted from their hearth and homes and who have lost their source of livelihood. They

are migrants from the Kashmir valley. They have migrated because of the prevailing terrorism in the Kashmir valley. Nobody can perhaps say that

these migrants do not require rehabilitation. Giving preferential treatment to the members of such family in the matter of admission to a professional

course cannot be said to be showing undue favour to the family or to the candidate. The favour is preeminently due. The favour has been extended

to all migrants uniformly, without distinction of caste, creed, community or religion.

During the course of arguments the question cropped up as to how such family will be identified. Identification of such families is different from the

validity of categorisation. If the benefit of the clause is availed of by a candidate who is entitled to the benefit by misrepresenting facts the same can

be dealt with by nullifying the preferential treatment given to the candidate, but thereby the categorisation itself cannot be invalidated. The claim of

the candidate can be suitably verified through District Officers or otherwise.

Another question which cropped up was whether there was any reasonable basis to exclude those from the purview of subclause (c) who instead

of leaving the valley preferred to stay on and risk their lives. This question leads to the further question whether those who have chosen to stay on

in the Valley risking their lives can be said to be identically placed as those who have Immigrated from the Valley. In my opinion the two cannot be

placed on equal footing. Those who have chosen to stay on in the Valley have lost nothing and therefore, there is no question of rehabiliting them in

the manner contemplated to be done under subclause (C). They may be exposed to danger, but they are either capable of warding off the danger

of the extent of danger to which they are exposed is not such as the migrant were exposed to. This is the only inference can be drawn from the

continued stay of such persons in the Kashmir Valley.

Under subclause (C) the event which qualifies for the beneficial treatment is migration from the Kashmiur Valley due to terrorism therein and the

persons who are entitled to such treatment are the migrants. The event is well defined and the persons entitled to the benefit are also well defined.

There is no ambiguity. The purpose of giving the beneficial treatment is not arbitrary. Accordingly the classification contemplated by the subclause

is not invidious.

Our attention was invited to dertain decisions which may now be noticed. .

In Ram Prasad Narayan Sahi v. State of Bihar, AIR 1953 SC 215, the propositions of law laid down are:

The presumption is in favour of constitutionality; Article 14 does not prohibit classification; it prohibits only hostile discrimination and oppression of

inequality when classification is resorted to, the selection of the class or classes singled out for preferential or adverse treatment must not be

arbitrary and should rest upon rational basis having regard to the object sought to be achieved.

In Budhan Choudhary v. State of Bihar, AIR 1955 SC 191, it was held that Article 14 does not prohibit reasonable classification and in order

to pass the test of permissible classification, two conditions must be fulfilled; first the classification must be founded on an intelligible differentia

which distinguishes persons or things that are grouped together from others left out of the group and second, the differentia must have rational

relation to the object sought to be achieved.

Over the years Article 14 has come up for interpretation before their Lordships of the Supreme Court in several cases, but the propositions

mentioned above have not been deviated from or altered; rather they have been restated or reiterated and reaffirmed. It is, therefore, not necessary

to burden this judgment with detailed examination of all the authorities cited at the bar. Only a few dealing with reservation of seats for admission to

educational courses may alone be noticed.

In Kumari Chitra Gosh v. Union of India, AIR 1970 SC 35, the challenge was directed against the reservation of seats in favour of (1) the

sons and daughters of residents of Union territories other than Delhi; (2) Sons and daughters of Central Government servants posted abroad; (3)

Cultural scholars; (4) Columbo Plan scholars; (5) Thailand Scholars: and (6) Jammu and Kashmir State Scholars. This classification was upheld

and it was observed in paragraph 9 of the report as under :

It is the Central Government which bears the financial burden of running the medical college. It is for it to lay down the criteria for eligibility. From

the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the

right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia an over all assessment

and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for

medical education. If the sources are properly classified whether an territories geographical or other reasonable basis it is not for the courts to

interfere with the manner and method of making the classification.

The view taken by their Lordships of the Supreme Court is that prescribing sources for admission to an educational Institution run by the

Government is policy matter with which the courts will not interfere so long as the sources are properly classified on a reasonable basis. This

judgment fully supports the impugned classification. The broader classification in the case on hand was made by the Central Government when it

allocated 29 seats to the victims of terrorism. The next classification has been made by the State Government. Both the classifications reflect the

policy of the Government to give assistance to the victims of terrorism. There is no dispute and we can take judicial notice of it that terrorism is

prevailing in the Valley and was prevaling also at the time the classification was made. To provide assistance to the victims of terrorism cannot be

said to be unreasonable. Therefore, there is reasonable basis for the policy decision of both the Governments. The further classification made by

the State Government has reasonable nexus with the object sought to be achieved by the allocation of 29 seats to the State of Jammu and Kashmir

by the Central Government. Persons contemplated by subclauses A, B and C are either present or prospective victims of terrorism. The

subclassification does not become invidious merely because those covered by clause (B) have not yet suffered actual injury. In D. N. Chanchala

etc. v. The State of Mysore, AIR 1971 SC 1762, reservation of seats in Medical Colleges for children of political sufferer and Defence personnel

was upheld. In respect of children of Defence personnel, it has been observed in paragraph 43 at page 1775 thus:

.... The criteria for the such reservation is that those serving in the Defence forces or those who had so served are and were at a disadvantage in

giving education to their children since they had to live, while discharging their duties, in difficult places where normal facilities available elsewhere

are and were not available.

This justification applies with equal force to those covered by subclause (B).

In State of Jammu and Kashmir v. Triloki Nath Khosa, (1974) 1 SCC 19 : (AIR 1974 SC 1) it was held that judicial scrutiny of classification

extends only to finding out whether it rests on a reasonable basis and whether it bears nexus with the object in view and it ""cannot extend to

embarking upon a nice or mathematical evaluation of the basis of classification, for were Such an inquiry permissible, it would be open to the courts

to substitute their own judgment for that of the Legislature or Rule making authority on the need to classify or the desirability of achieving a

particular object."" This authority also Sustains the classification in question.

Having settled the question of reasonableness of the impugned classification and its nexus with the object Sought to be achieved by the

allocation of seats to the State by the Central Government, we may now pass on to scrutinise the judgment of the Division Bench in re: Qazi Yusra

Aslam v. State, (supra). After referring to a large number of decisions of the Supreme Court, the learned Judges proceed to state.

The object and purpose of making Selection the MBBS/ BDS courses is admittedly to Select the best for imparting education and training for

children who are Supposed to become doctors to perform the duties for the service of the society. Such students selected for undergoing the

MBBS/BDS courses are supposed and expected to deal with the suffering masses and to prevent the disaster to the humanity eschewing it on

account of diseases and matters relating to health and welfare of the people. To achieve the object of having professionals in the medical field, an

effort is always made to select the meritorious by ignoring the extraneous considerations. The State has, however, in its wisdom thought it proper

of give some representation to the socially and educationally backward class of citizens or for scheduled caste and scheduled tribes. The

selection/nominations to the professional courses particular the MBBS/ BDS cannot be equated with the ordinary largess or as a reward for the

alleged services rendered by the parents of a candidate. The object of selection being to select the best cannot be permitted to be made the

conferment of benefits upon politicians and bureacrates ignoring the object of selection to MBBS/BDS courses. The object of making selection

and appointment is to recruit doctors and not to pay reward to the persons who are alleged to have suffered on account of insurgency, militancy or

law and order problem. Unless the categories or reservation are referred to the nexus with the object of Selecting the best or promoting socio

economic backward class conditions or to the other deserving unrepresented categories, such classification has to be set aside being violative of

Art. 14 of the Constitution."" (Emphases supplied)

From the emphasised portion, it is apparent that the learned Judges were of the opinion that the classification made by the State Government

should have nexus with the object of holding Selection viz to select the best. With utmost respect to the learned Judges, I am unable to subscribe to

this approach. The validity of the classification in question was not required to be judged with reference to the object of holding selection. It had to

be judged with reference to the object of allocating 29 seats to the State of Jammu and Kashmir. The object of allocating them seats was to help

the victims of insurgency. The classification should bear nexus with this object. So long as the classification bears nexus with this object it cannot be

struck down on the ground that it does not bear nexus with the object of holding selections, I am of the considered opinion that the impugned

classification bears nexus with the object sought be achieved by allocating 29 Seats to the State.

Let me now examine the view taken by the Division Bench in Pankaj Gandotra's case(supra). The Division Bench has referred to a large

number of decisions of the Supreme Court to bring home the point that Article 14 does not prohibit all classifications, but prohibits only invidious

classification and that if the classification is founded on an intelligible differentia which distinguishes persons and things left out of the group and the

differentia has a reasonable relation to the object sought to be achieved, it is not invalid. Thereafter in respect of the classification in question it has

been observed :

There is no doubt in our mind that the Central Government had offered the seats from out of its pool to the State Government, to help it tide over

the difficulties during its state of turmoil and disturbances, and the State was well within its rights, duly recognized under Article 14 to nominate

candidates from out of the classes and categories of persons, who had either suffered or become victims of disturbances, instability and terrorism

or who had been helping the State Government and, for that matter, the nation in countering terrorism. We wish to observe that perhaps no better

cause could be served and perhaps no other class or category could be called as more deserving than the ones constituted by the State for

nominating students in the Medical Colleges outside the State. In fact, here was a classic example of the State Government attempting and trying to

provide some relief to persons who had been victims of some disturbances, who had been suffering because of some situation or the other.

The Division Bench thus considered the validity of the classification with reference to the object of releasing 29 seats to the State. This, in my

opinion, was the correct approach.

From the above discussion it would be seen that the two Division Benches came to two different conclusions on identical matter because of the

difference in their approach to the question of constitutionality of the classification. While one Division Bench approached the question with

reference to the object of making selection for admission to the medical courses, the other approached the question with reference to the object of

releasing 29 seats to the State by the Central Government. As already observed the latter approach was the correct approach. If the former

approach is insisted upon, not only the purpose of releasing the 29 seats will be frustrated, there is every likelihood of the State losing the seats

allocated by the Central Government. If the Central Government finds that the purpose of releasing the seats is frustrated, it may perhaps choose to

withdraw the seats. In that event the loss will be of the State and of the State subjects. The Bench in Qazi Yusra Aslam's case (supra) purports to

support its conclusion on the basis of the dictum laid down by their Lordships of the Supreme Court in Suman Gupta v. State of J. and K., AIR

1993 SC 1235. In my opinion there is nothing in Suman Gupta's case either to support the view taken by the Division Bench or to invalidate the

classification in question. Suman Gupta's case was also a case of choosing candidates for nomination to seats reserved in Medical Colleges of

other States. The purpose of nomination was to promote national integration. The State Government did not formulate any criterion for making

nominations and nominated candidates who had secured lesser marks in the qualifying examination. The charge of discrimination and arbitrariness

was sought to be repelled by the State Government by contending that to serve the objective of national integration the selection of a candidate had

to be determined not only by the marks obtained in the qualifying examination but also by his ability to project an appropriate image of the culture

of his home State in the State to which he is nominated and that in this context no objective criterion was possible to be fixed and the selection per

force had to be left to the absolute and unfettered choice of the State Government. Rejecting this plea, their Lordships have observed in paragraph

6 of the report at page 1238 :

After considering the matter carefully, we confess, we are unable to subscribe to the view that the selection of candidate for that purpose must

remain in the unlimited discretion and the uncontrolled choice of the State Government. We think it beyond dispute that the exercise of all

administrative power vested in public authority must be structured within a system of controls informed by both relevance and reasons 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.Proceeding from there it is evident

that if the State Government desires to advance the objective of national integration it must adopt procedures which are reasonable and are related

to the objective. In this age of reason, all law must measure up to that standard, and necessarily so also must all executive acts. Viewed in this

context, the claim of the State Government in these cases that the nature of the objective and the means adopted to serve it entitle it legitimately to

vest in itself an absolute power in choosing candidates for nomination cannot be allowed to prevail. It is incumbent on the State Government to

adopt a criterion or restrict its power by reference to norms which, while designed to achieve its object, nevertheless confine the flow of that

power within constitutional limits. We are not convinced that an adequate system of standards cannot be devised for that purpose. Tested on the

touchstone of our constitutional values, the claim of the State Government to the content of the power, assumed by it must, in our opinion be

declared invalid."" (Emphasised)

Their Lordships have nowhere laid down in the judgment that the rationality of classification was not required to be judged with reference to the

object of administrative or legislative action; rather their Lordships have laid down that the rationality of classification has to be judged with

reference to the object sought to be achieved by the administrative or legislative action. If the rationality of the classification in question is judged

with reference to the dictum laid down by their Lordships, the same does not suffer from any infirmity. After the seats were released by the Central

Government, the State Government, in the case on hand, did not start making nominations without formulating norms. Norms were formulated in

the shape of classification referred to hereinabove. The nominations were confined to the candidates who had appeared at the entrance

examination. Amongst the candidates falling in the same category, merit at the entrance examination was preserved. Classification and the

administrative action adopted by the State Government, both pass the test of validity laid down by their Lordships. In paragraph 7 of the report,

their Lordships have observed:

How the selection of an appropriate procedure lies ordinarily within the domain of administrative policy, and when the objective can be fulfilled by

more than one constitutionally valid method, the selection must be left to administrative choice. The Courts are generally concerned merely with the

legal validity of the choice made.

In view of the above dictum also there is no occasion for this court to interfere with the classification made by the State Government.

After holding the classification invalid, the Division Bench in Qazi Yusra Aslam's case proceeded to issue directions to the State Government to

be followed in future. The learned Advocate General relying upon AIR 1989 SC 1899 (Asif Hameed v. State of Jammu and Kashmir) submitted

that it was beyond the competence of the Division Bench to issue the said directions. Since we are upholding the classification and overruling the

judgment of the Division Bench, the directions automatically fall through. Accordingly it is not necessary for us to make any comment on the validity

of the directions issued by the Division Bench.

In view of the above my opinion is as follows:

1)The classification made and the criterion adopted by the State Government for making nominations to the seats released by the Central

Government do not suffer from any infirmity;

2) OP No: 995/1991 Pankaj Gandotra v. State of Jammu and Kashmir decided on 10th August, 1992 at Jammu was correctly decided; and,

3) OP No: 2637/1991 Quazi Yusra Aslam v. State and others v. State decided on 1391993 at Srinagar was incorrectly decided.

Let the LPA'S and the writ petitions be now listed before appropriate benches for appropriate orders.

I have gone through the opinions prepared by my learned brethren, Rizvi and Mir JJ. I only wish to place on record that during the course of

hearing neither any party challenged the constitution of the Full Bench and the assignment of the cases to it nor my learned brethren did so. I feel

that the parties who felt that there was conflict of opinion between two Division Benches which required resolution through pronouncement by a

larger bench were entitled to opportunity of advancing arguments on the powers of the Chief Justice to constitute benches and assign cases to

them. Unfortunately, my learned brethren have framed opinion without affording this opportunity to the said parties.

I am further of the opinion that the power of the Chief Justice to constitute benches and assign cases to them is plenary and is not open to

challenge by the members of the bench to whom the case has been assigned.

Clause 26 of the Letters Patent (JandK) confers power upon the Jammu and Kashmir High Court to make rules in respect of the matters

specified in Section 67 of the Jammu and Kashmir Constitution, 1996. Section 102 of the present Constitution of the State of Jammu and Kashmir

preserves the rule making power of the Court. In exercise of the power available under clause 26 of the Letters Patent and Section 102 of the

Jammu and Kashmir Constitution and other provisions enabling in that behalf, the High Court of Jammu and Kashmir has framed rules called the

Jammu and Kashmir High Court Rules, 1975. Chapter V of these rules deals with the ""Jurisdiction of single Judge and Benches of the Court"". This

Chapter contains Rules 14 to 23. Rule 14 enumerates the categories of cases which are to be heard by a judge sitting alone. After this enumeration

there is a proviso which reads as follows:

Provided that

(a) the Chief Justice may direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or

more Judges; and

(b) a Judge sitting alone may, if he thinks fit, refer a case or any question of law arising therein for decision to a larger Bench to be constituted by

the Chief Justice.

The present bunch of cases comprises writ petitions and Letters Patent appeals. The writ petitions were ordinarily to be heard by a Judge

sitting alone. In respect of these petitions no request was made by a learned single Judge to the Chief Justice for constituting a larger bench to hear

them. Accordingly clause(b) is not attracted. Reference was made to this Full Bench by orders passed by me as Chief Justice on applications

made by one or the other party. Accordingly the said writ petitions will be covered by clause (a). The power conferred under clause (a) upon the

Chief Justice is not hedged in by any conditions. The Chief Justice may exercise the power conferred under this clause suo motu or at the instance

of a party. The exercise of the power will not become invalid on account of the fact that there was in fact no conflict between the two Division

Benches on the basis of which reference was sought to a larger Bench.

The Letters Patent appeals which are also comprised in this bench were to be heard by a Division Bench comprising two Judges. Such a case

could be referred to a bench of more than two Judges under Rule 18 which reads as follows:

The Chief Justice may constitute a bench of two or more Judges to decide a case or any question of law formulated by a bench hearing the case.

In the later event the decision of such bench on the question so formulated shall be returned to the bench hearing the case and that bench shall

follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein;

Provided that whenever in any case a Division Bench differs from any other Division Bench of the Court on a point of law or usage having the

force of law such case or point shall be referred for decision by a larger bench to be constituted by the Chief Justice.

Rule 18 also does not prescribe any conditions for the exercise of power by the Chief Justice. Accordingly the Letters Patent appeals could have

been referred to the present Full Bench irrespective of the fact whether there did in fact exist conflict of opinion between two Division Benches or

not.

In taking the above view I am fortified by a Division Bench authority of the Allahabad High Court in Puran Chand v. Abdullah, AIR 1938 All

The facts of this case were these: A reference was made to the High Court by a Small Cause Court Judge. This reference came up before a

Bench of two Judges. The Bench noticed that there were conflicting rulings on the points referred by the Judge Small Causes. It accordingly

directed the papers to be laid before the Chief Justice, with the request to constitute a larger Bench. The Chief Justice constituted a Bench of three

Judges. Before this Bench of three Judges could meet and express its opinion on the question referred to it, another Bench of three Judges

expressed opinion on the said point. This opinion was brought to the notice of the Bench of three Judges which had to express opinion on the

reference made by the Judge Small Causes. The Bench was of the opinion that the matter should now be heard by a Bench of five Judges. The

Bench accordingly returned the reference unanswered with the request to the Chief Justice to constitute a Bench of five Judges. Instead of

constituting a Bench of five Judges, the Chief Justice assigned the case to a Bench of two Judges. When the matter came up before the Bench an

objection was raised to its constitution on the ground that in view of the order of the Bench of three Judges, the case could be assigned to a Bench

of five Judges only. Overruling the objection the Bench held :

Now when the Full Bench of three Judges was constituted by order of 6th September 1937, jurisdiction was given to those three Judges to

decide the question of law which is the subject of the present reference. The Judges did not exercise that jurisdiction and they returned the

reference to the Chief Justice for further orders to be passed by him. When those learned Judges passed this order returning the reference their

jurisdiction in the matter came to an end. Further, it is not for a Bench of Judges to give directions to the Chief Justice as to what he shall do or

what he shall not do under Rule 3A of the High Court Rules and the actions quoted of the Government of India Act. It was therefore in the opinion

of this Bench within the jurisdiction of the Chief Justice to take the course of action which he has taken........."" (Emphasised)

Rule 3A of the Allahabad High Court Rules relied upon in the case is substantially similar to our own Rule 18. Rule 3A reads as follows:

The Chief Justice may constitute a Full Bench of three or more Judges either to decide a case or to decide any question or questions of law

formulated by a Court hearing a case; and in the later case the issues so decided shall be returned to the Court hearing the case.

I have observed hereinabove that in the matter of constitution of Benches and assignment of cases to different Benches the power of the Chief

Justice is plenary. To this must be added a caveat. It is subject to any statutory provision requiring a case of a particular nature to be heard by a

Bench of particular strength. Thus a case which under such provision can be heard by a Bench of not less than two Judges, cannot be assigned to a

single Bench. But it is always permissible to assign a case which is to be heard by a Bench of smaller strength to a Bench of larger strength.

In view of the above, with utmost respect to my learned brethren. I say that there is no occasion for them to hold that the assignment of present

cases to the Full Bench was invalid.

RIZVI, J. : I have gone through the judgment proposed by my Lord the Chief Justice, and with respect, I regret my inability to agree with the

same, for the reasons given below. I need not, however, narrate the facts of the case in detail which have been noticed in the said judgment.

The present reference has come up before us under proviso to Rule18 of the High Court Rules. I have grave doubt in my mind as to whether

the present reference is maintainable in terms of the aforesaid proviso, which reads as under:

Provided that whenever in any case a Division Bench differs from any other Division Bench of the Court on a point of law or usage having the

force of law such case or point shall be referred for decision by a larger Bench to be constituted by the Chief Justice"".

A perusal of the aforequoted proviso shows that a reference is maintainable to a larger Bench only if the following conditions are present:

(i) There must be a decision of a Division Bench of this Court on a point of law or usage having the force of law;

(ii) The same point of law or usage having the form of law must come up for consideration before a subsequent Division Bench of this Court;

(iii)The latter Bench must differ from the earlier Division Bench on the particular point of law or usage having the force of law;

(iv) The subsequent Bench must formulate the points on which it seeks to differ from the earlier Bench, and thereafter, request the Chief Justice to

refer the case, which is pending before it, or the points on which it seeks to differ from the earlier Division Bench, for the decision by a larger

Bench to be constituted by the Chief Justice.

It appears to me that it is for the subsequent Division Bench to formulate the points on which it seeks to differ from the earlier Bench and refer the

same for decision by a larger Bench. Once the point is answered by the larger Bench, it may decide the case pending before it in the light of

decision of the larger Bench. The subsequent Division Bench may, on the other hand, not only refer the point involved but also the entire case

pending before it for the decision of the larger Bench. In the present case, the position is not so.

The admissions to MBBS course for the year,1991 were challenged in various writ petitions filed in both the wings of this court. One of the

grounds of challenge was that the State had filled up 29 seats, offered to it by the Central Government, by nomination, without regard to the merit

of the candidates. It was alleged that nominations were made to accommodate the kith and kin of some bureaucrats and other blueeyed

candidates. The State defended the nominations on the ground that these seats were utilised by the State in order to accommodate the candidates

who had suffered because of the prevailing situation of the military in the State of Jammu and Kashmir.

A group of these petitions titled : Pankaj Gandotra v. State of JandK, came to be disposed of by a Division Bench sitting in Jammu Wing of this

Court on 1081992. A number of petitions were pending in the Srinagar Wing of this Court also but they were not clubbed with the petitions

decided by the Division Bench of the Jammu Wing of this court.

The Division Bench at Jammu upheld the nominations. This judgment of the Division Bench was challenged before the Supreme Court in Pooja

Duloo v. State of Jammu and Kashmir. While the matter was pending before the Supreme Court, the parties therein entered into an agreement in

the light of which the Supreme Court did not quash the selection. The Supreme Court observed as under:

Even assuming that these classifications for the allocation and appropriation of the seats for the benefit of these categories alone were permissible,

the manner in which the actual selections were made under these categories, appears to us to be totally improper.

The Court, after placing the memorandum of agreement on record, observed as under:

We would have quashed the entire selections and set aside the admissions so that right message would go to all those likeminded that benefits

garnered by secretive arrangements would not be lasting.

It further observed as under :

As stated earlier we abstain from quashing selections with the hope that the future admissions will be dealt with and regulated with the strict

rectitude and proprietary and that no room is given for a grievance that a high and mighty walk way with what was intended for the fit and

deserving. The judgment under appeal is modified in terms of agreed memorandum.

From the above, observations of the Supreme Court, it is clear that since it is found that the manner in which the actual selection had been

made was improper, it would have quashed the selection without answering the question of constitutionality, of the classification for the nomination

adopted by the State. The Hon'ble Supreme Court would not have gone into the question of constitutionality because it is a settled principle of

judicial policy not to decide constitutional issues if the matter can be disposed of on some other grounds. Therefore, the question of whether or not

the classification adopted by the State for the nomination of the candidates against seats allocated to it under the Central Government pool was

constitutionally valid was left open by the Hon'ble Supreme Court.

After the aforesaid judgment of Division Bench of Jammu and its modification by the Hon'ble Supreme Court, a bunch of petitioners came up

for disposal before the Division Bench at Srinagar Wing of this Court. Those matters were decided by the Division Bench at Srinagar vide its

judgment in Quzi Yusra Aslam v. State of Jammu and Kashmir decided on 13th September 1993. Before the Division Bench at Srinagar, the State

had contended that all the issues raised before it had already been decided by the Division Bench at Jammu and had been settled by the order of

the Hon'ble Supreme Court, vide its order dated 1531993. The Division Bench at Srinagar, after carefully analysing the judgment of the Division

Bench as well as order of the Supreme Court, concluded as under :

It is, therefore, established that neither the Division Bench judgment in Pankaj Gandotra's case nor the judgment of the Supreme Court in Puja

Dullu's case prevents us from adjudicating upon the points referred to us. However, we propose to give due weightage to the judgment of the

Division Bench which decided the Pankaj Gandotra's case being a bench of coordinate jurisdiction with respect to the points specifically dealt with

by the said bench or not impliedly set aside by the Supreme Court.

The above observations of the Division Bench at Srinagar show that, in its view, there was no conflict between its judgment and that of the Division

Bench at Jammu. Therefore, the question of its disagreeing with the earlier Division Bench on a point of law did not arise. Proviso to R.18 of the

High Court Rules of J and K envisages a situation where the subsequent Division Bench differs from an earlier Division Bench on a point of law.

Where the subsequent Division Bench itself records a finding that its adjudication is on point of law, not decided by the other Division Bench and

that its view does not differ from the earlier judgment, the question of formulating a point for reference to a larger bench does not arise. In my view,

what is being sought to be done by the State, in the present case, is inviting a larger bench of this Court to sit in appeal on the judgment of a

Division Bench of this court. That is not permissible in law. If the State was aggrieved of the judgment of the Division Bench given at Srinagar, it

was open for the State to challenge the same through appropriate proceedings before the Supreme Court. The State cannot seek to set aside the

judgment of a Division Bench of this court by recourse to proviso of R.18 when the Division Bench at Srinagar has recorded its categoric finding

that its judgment covers a point which has not been specifically decided either by the High Court or by the Supreme Court. In my view, therefore,

the present reference is not maintainable.

However, there are other grounds also on which I find it difficult to agree with the judgment proposed by my Lord the Chief Justice. It appears

to me that the nominations made by the State against the vacancies in the year, 1991 are being sought to be justified on the basis of Government

Order No. 412 (TRG) of 1992 dated 1091992. In my opinion, the said Government Order was not the subjectmatter of controversy either before

the Division Bench at Jammu or the Division Bench at Srinagar. Both the Division Benches were concerned with the admissions made in the

year,1991 on the basis of some unpublished guidelines, prepared by some officials of the State, which have been reproduced by the Division

Bench concerned at Srinagar in its judgment at page 76. Those guidelines are, in some material aspects, different from the classification contained

in Government Order 42 of 1992. It seems to me that the correctness or the comparative soundness of the judgments of the two Division Benches

of this Court has to be appreciated in the light of their views expressed on the unpublished guidelines of 1991 and not on the basis of Government

Order No. 412 of 1992, with which neither of the two Division Benches was concerned. In the proposed judgment, the Hon'ble Chief Justice has

analysed the classification contained in Government Order No. 412 of 1992 and found that the same does not suffer from the vice of impermissible

classification. In my opinion, this may not be the correct approach in the present case. Apart from that, for the reasons which I shall state herein,

even the classification contained in Government Order No. 412 of 1992 appears to be unreasonable and arbitrary and violative of Arts. 14 and 15

of the Constitution of India.

However, before I deal with the infirmities of the classification contained in Government Order No. 412 of 1992, I would like to deal with the

views of the earlier two Division Benches on the question of the unpublished guidelines adopted by the State for filling up the 29 seats by process

of nominations.

At pages 31 to 33 of its judgment, the Division Bench at Jammu, had noted the fact that 29 seats in MBBS/ BDS courses for the year 199192

were allotted in favour of J. and K. State by the Central Government. It is common knowledge that some seats were made available by the Central

Government to the States for the purpose of nominations. This is not something peculiar to the State of Jammu and Kashmir and there is nothing on

record to show that these seats were made available to the State by the Central Government only for the purpose of accommodating candidates

who might have suffered on account of militancy in the State. However, the respondentState is reported to have decided, as a matter of policy, that

the Central Government quota should be used for accommodating candidates whose families have suffered on account of militancy. Dealing with

this aspect, the Division Bench at Jammu made the following observations:

It would be inescapable to ignore taking judicial notice of the prevailing situation in Kashmir Valley and to record that the State is passing through

very difficult times and the functionaries of the State, including its Chief Executive, i.e. the Governor are engaged in battling terrorism and militancy.

In such a grim situation, where all round disturbances and dislocations have been ruling the roost for more than two and half years, one cannot lose

sight of the basic reality that a very vast number of persons have suffered either at the hands of the people or the situations. Not only that,

educational institutions, including professional and technical institutions either had to be closed down in Kashmir Valley or had to suspend their

activities for a considerable period of time and a very large number of people were so adversely affected that they had either to migrate from out of

the Valley to safer and more secure areas of the country or had to otherwise suffer because of adversities of the situation. In this phenomenon

naturally the children and other dependents also had to suffer. One also cannot forget that in the grim situation that has been staring at us for past

more than two and half years, many families have been ruined and many children have been orphaned because of various acts of terrorism, for no

fault of the innocent victims and their unfortunate and destitute dependents. Still another fact which also cannot be lost sight of is that, despite very

heavy odds and in the face of very grim realities of devastation and destruction, some brave people are engaged in defending the sovereignty and

integrity of the country and even under severe and adverse conditions, fighting and countering terrorism in the valley. Yes, we do say that, we are

not oblivious of these realities around us.

A perusal of the judgment of the Division Bench in Pankaj Gandotra (pages 52 to 56) shows that the Court focussed its attention on two

questions; (1) whether or not granting some benefit to candidates, who had suffered on account of militancy, was a proper objective and, (ii)

whether or not a procedure had been laid down by the Government for achieving that procedure. It may be pointed out that, as a principle of law,

there does not appear to be any doubt that, in proper circumstances, the object mentioned by the Division Bench may be a permissible object for

the purpose of Art. 14. There also is no doubt that a procedure had been laid down by the State, even though it had not been published. But the

real question is not whether or not the object sought to be achieved is permissible or that the State had laid down any procedure. The real question

is whether or not the classification adopted by the State for the purpose of achieving the objective in question is reasonable and constitutionally

permissible on the touchstone of Arts. 14 and 15.

In my opinion, the Division Bench in Pankaj Gandotra's case has left that question open. On the other hand, the Division Bench at Srinagar has

examined the matter from this particular angle. It has specifically dealt with this aspect of the matter from pages 78 to 84 of its judgment. I may

reproduce the relevant extracts hereunder :

The object and purpose of making selection to the MBBS/ BDS courses is admittedly to select the best for imparting education and training for

children who are supposed to become doctors to perform the duties for the service of the society. Such students selected for undergoing the

MBBS/ BDS courses are supposed and expected to deal with the suffering masses and to prevent the disaster to the humanity on account of

disaster and matters relating to health and welfare of people. To achieve the object of having professionals in the medical field, an effort is always

made to select the meritorious by ignoring the extraneous considerations. The State has, however, in its wisdom thought it proper to give some

representation to the socially and educationally backward class of citizens or for scheduled castes and scheduled tribes. The selection/nominations

to the professional courses, particularly the MBBS/ BDS courses cannot be equated with the ordinary largess or as a reward for the alleged

services rendered by the parents of a candidate. The object of selection being to select the best cannot be permitted to be made the conferment of

benefits upon politicians and bureaucrats ignoring the object of selection to MBBS/ BDS courses. The object of making selections is to recruit

doctors and not pay reward to the persons who are alleged to have suffered on account of insurgency, militancy or law and order problem. Unless

the categories of reservation are referred to the nexus with the object of selecting the best or promoting socioeconomic backward class candidates

or to the other deserving unrepresented categories, such classification has to set aside being violative of Art. 14 of the Constitution.

Let us now examine the classification in this case on the basis of the law laid down by the Apex Court to see whether there is any nexus with the

object sought to be achieved by the classifications made by the respondents, Category (i) pertains to the children of families who had been victims

of terrorism since the beginning of January 1990. It is true, that the child of such a victim family may have suffered in his educational pursuits for a

limited period, but the same cannot be permitted to confer a perpetual right on such a family for getting admission in the professional courses like

MBBS/ BDS. The families of the victims are being compensated by giving them pecuniary and other benefits but their children cannot be allowed

to be admitted to the professional courses irrespetive of their either having applied for the post or having obtained a specified percentage of

numbers / points as has been prescribed in case of the other reserved categories in the State of Jammu and Kashmir. The Court and the nation

have all sympathies with such children but no nexus is referred to the object sought to be achieved and the respondents have not in any way tried

to justify the basis of classification. The respondents have only referred to the miseries of such children inviting sympathy but have failed to show as

to what prompted the State for making reservation of MBBS/ BDS seats in favour of such children. The category having no nexus with the object

or a reasonable criteria, cannot be justified by the respondents to be a reasonable category. It has also failed to stand the test of reasonable

classification as the respondents have not shown that it is founded on any intelligible differentia or that the differentia has a rational relation to the

object sought to be achieved for which the nominations were made.

Similarly, category No. (ii) pertaining to the children of persons who are allegedly engaged officially in encountering the terrorism in hazardous

circumstances are considered high on the hit list of terrorists, has not been tried to be justified either on facts, or under law. The respondents have

not referred to any alleged hazardous circumstances or laid down any guidelines to determine the persons falling under such a category. It has been

left to the whims and caprice and unbridled power of the executive to determine such persons who are required to be helped by falling under this

category. From the record it appears that this category was tailored only to suit few bureaucrats and officials who were allegedly, the favourites of

the then Governor. This Court in State v. Ghulam Mohiuddin (Criminal Revision No. 3/1993) decided on 681993 (SB) found it with pains. ""I can

safely say that one of the causes of such restlessness in our youth is the cancer of corruption which has eaten into the vitals of the body politic of

the State. In the days of past we used to accuse politicians of this mounting corruption. Now they are no more. Political power in the State has

evaporated. This has been substituted by executive power. The unforeseen situation in the State has escalated all powers with a class of

bureaucrats who are accountable to none, people have lost faith in the Government"". The classification of such a category is nothing but a scam of

very serious nature. The category has been carved out by bureaucrats in connivance with the highest executive officer of the State only for the

purpose of conferment of benefits upon themselves. The children of the beneficiaries are shown to have secured marks ranging between 51 to l19

in MBBS entrance test, whereas the first candidate in the open merit category is shown to have obtained 180 marks and the last candidate in the

said category 134 marks........

As the respondents have failed to justify classification, we have no hesitation to call this classification as a classification meant for conferring

benefits upon those who are entrusted with the job of dispensing justice by distributing of seats. The beneficiaries managed, manipulated and

procured favour for themselves either by misleading the State executive or in connivance with the highest of the executive authority. Such a

category has no nexus with the object sought to be achieved and does not in any way stand on the touch stone of the tests laid under Art. 14 of the

Constitution. The creation of such a class is by itself not only illegal but scandalous requiring immediate preventive and other necessary measures as

a follow up, which may prevent the abuse of power by bureaucrats in future...........

On the analogy what we have said with respect to the categories (i) and (ii) we have no hesitation to hold that the respondents have also failed to

justify category (iii) on the basis of the tests laid down by the Apex Court as well as other High Courts in the country while interpreting Arts. 14

and 15 of the Constitution of India. Even migration is a permanent agony to the parents, yet it cannot be termed to be a permanent circumstance

entitling conferment of benefits upon the children of such parents who had to abandon their professions and businesses or place of abode in the

Valley to conditions of insecurity created by terrorism. We have been told that a number of persons belonging to minority community are still

residing in the Valley, and if such an averment is true, those persons can be held to be more deserving to get the benefit of this category than those

who have conveniently left the valley and are being conferred with various kinds of monetary bene fits and rehabilitation facilities.

With respect, I find that the Division Bench at Srinagar has dealt with the crucial issue at some length and has examined the matter on the

touchstone of reasonableness and rationality of the classification which was left open by the Division Bench at Jammu.

I reiterate that it is not proper for this larger bench to examine the validity of classification contained in Government order No. 412 of 1992,

because that was not in issue before the two Division Benches of this Court. However, with that caveat, I may state my reasons for disagreeing

with the views of my Lord Chief Justice in the proposed judgment on the classification contained in the aforesaid Government Order.

49A. In the proposed judgment, the Hon'ble Chief Justice has upheld the classification mainly on the following grounds :

(i) It is the duty of the State to provide security to its citizens. It is also its duty to provide some form of compensation or rehabilitation to people

who have suffered on account of militancy prevailing in the State.

(ii) The compensation/rehabilitation can take many forms. It is open to the State to provide this compensatory rehabilitation in the form of granting

some special privilege to members of the family in the matter of admission to MBBS/BDS courses.

(iii) The classification contained in the Government Order has been made by the Government vide the aforesaid Government Order for the purpose

of obtaining this objective. The classification is reasonable and does not suffer from any vagueness.

Before I state the reasons for my disagreement, I must make one thing very clear. I am aware of the fact that because of the turmoil in the State

most of its population has suffered a great deal. Many families have suffered loss of human lives and property. Many families had to suffer

dislocation and, inevitable crisis that goes with it. The schools and colleges, especially in the Kashmir valley, remain closed for most of the time.

The education has been one of the foremost casualities. I do agree that providing some help to those who have suffered is the constitutional

obligation of the State. The question however, is not whether or not the State should do something to help those who have suffered because of the

prevailing turmoil and crisis in the State. The question is whether or not granting admission to some students, through the process of nomination to

MBBS/BDS courses, according to the method and manner adopted by the State, is constitutionally permissible. We have to be guided by the

Constitution and governed by rule of law. The action of the State has to be tested on the touchstone of Constitution and not the mere intention of

the State authorities. The noble motives and good intentions alone cannot support a State action when its constitutional validity is challenged on the

touchstone of Arts. 14 and 15 of the Constitution. It is an old saying that the road to hell is paved with good intentions. So far as accessibility to

educational facilities, especially in respect of medical courses is concerned, we must not lose sight of two important factors; firstly, the institutional

facilities and financial resources in this field fall grossly short of the demand. Secondly, as has been pointed by the Hon'ble Supreme Court in a

number of cases, the object of adopting the procedures or guidelines for admission in medical colleges is to ensure that, in this sensitive field

concerning the health care of our population, the ideal should be to select the most meritorious, with due regard for making special provisions for

uplifting those classes who are socially and educationally backward. The combined reading of Arts. 14 and 15 supports that view. In other words,

the norm should be to grant admission to such courses mainly on the basis of merit. However, a special exception can be made to this norm for

uplifting of classes who are socially and educationally backward. The Constitution, therefore, visualizes the ideal of meritocracy with equity. The

Constitution reveals its mind or intent in Art. 15, as it were, that the special benefit can be granted only if the class in question suffers from

educational and social backwardness, as a result of which its members stand handicapped visavis the members of other classes who are socially

and educationally advanced. In other words, while making special provision or reservation for students, the guiding factor is to examine whether or

not they have suffered from any handicap or disability in respect of their educational career or avenues. The special benefit of reservation can be

granted to them only if they have suffered from this kind of handicap.

Here I may refer to the judgment of the Apex Court in the case of D. N. Chanchala v. State of Mysore, reported in AIR 1971 SC 1762. That

case dealt with the issue of reservation of seats and the grant of preferential treatment to the children of political sufferers. In para 43 of the

judgment, the Court observed, as under :

....... The object of the rules to admission can obviously be to secure a fair and equitable distribution of seats amongst those seeking admission

and who are eligible under the University Regulations. Such distribution can be on the principle that admission should be available to the best and

the most meritorious. But an equally fair and equitable principle would also be that which secures admission in a just proportion to those who are

handicapped and who, but for the preferential treatment given to them, would not stand a chance against those who are so handicapped and are,

therefore, in a superior position. The principle underlying Art. 15(4) is that a preferential treatment can validly be given because the socially and

educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society. It

would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fall under Art.15(4). It is on

such a principle that reservation for children of Defence personnel and exDefence personnel appears to have been upheld. The criteria for such

reservation is that those serving in the Defence forces or those who had so served are and were at a disadvantage in giving education to their

children since they had to live, while discharging their duties, in difficult places where normal facilities available elsewhere are and were not

available. In our view it is not unreasonable to extend that principle to the children of political sufferers who in consequence of their participation in

the emancipation struggle became unsettled in life; in some cases economically ruined, and were therefore, not in a position to make available to

their children that class of education which would place them in fair competition with the children of those who did not suffer from that

disadvantage. If that be so, it must follow that the definition of 'political sufferer' not only makes the children of such sufferers distinguishable from

the rest, but such a classification has a reasonable nexus with the object of the rules which can be nothing else than a fair and just distribution of

seats. In our view, neither of the two contentions raised by the counsel for the Petitioner can be accepted, with the result that the writ petition fails

and is dismissed.

In the above mentioned authority, the Apex Court has laid down the following principles :

(i) The object and ideal of the admission to Medical courses should be based on the principle that admission should be available to the best and

most meritorious.

(ii) That in view of Art.15(4) a preferential treatment can be given to those who are handicapped and who would not stand a chance against those

who are not so handicapped. Under Art. 15(4) this treatment can be given to socially and educationally backward classes.

(iii) That the principle underlying Art. 15(4) could also be applied to those who are handicapped but do not fall under Art. 15(4). The children of

defence personnel and political sufferers can be brought within the principle of Art. 15(4) only because they are found to be at disadvantage in

receiving their education. The children of defence personnel have to move from place to place and sometime to farflung areas which adversely

affects their education. Likewise, the children of political sufferers were also adversely affected because their parents lived in unsettled life and

were economically ruined.

It is a matter of common knowledge that schools and colleges remain closed for most of the time in the valley of Kashmir. Most of the people

living in the valley of Kashmir have no resources to leave their homes and migrate to safer places outside the valley. They have no prospects of

finding any jobs outside the valley. They have no relatives, no facilities or sympathies awaiting them if they migrate out of the valley. If any children

who have suffered most on account of current situation in the State, it is those who continuously lived in the valley. Further, even in respect of those

families who are still residing in Kashmir, there are different classes. There are families who can afford to send their children outside the Kashmir

valley for the purpose of receiving education. They may include the, families of people who are welltodo and who hold important positions in the

Government. It is a matter of common knowledge that the children of quite a few of these families and Government officers are receiving education

outside the State. In this view of the matter, even though some families of Hindus and Muslims who have migrated from Kashmir have suffered

from psychological trauma and economic difficulties, yet their children may be betterplaced so far as receiving education is concerned, as

compared to the children of those families who are living in Kashmir valley either because they have no resources or avenues to migrate from

Kashmir valley or who for some other reasons choose not to leave their own hearth and home. Likewise, the families of the bureaucrats, who are

serving the State, may feel insecure because of the prevailing situation in the State, yet most of them are in position to have their children educated

outside Kashmir. The children of those officers also stand on a better footing so far as educational opportunities are concerned. It is therefore,

ironical that the children of those who have migrated from the valley or those whose parents are working for the Government and who stand on a

better footing, so far as educational facilities are concerned, as against those children, who are trapped in the valley and whose schools and

colleges remain closed for most of the time, should be given a preferential treatment.

Now, I may also point out some of the infirmities which, in my opinion, are found in the three categories enumerated in para 3 of the

Government Order No. 412/1992.

So far as category 'A' is concerned, it has placed no limit on the number of children of a particular family who may be granted this benefit on

account of the fact that a member of the family has been killed. If we examine this category in the light of para 4(2) of the aforesaid Government

Order, a glaring anomaly and inequity comes to our notice. According to para 4(2), the candidates in each category 'A', 'B' and 'c', enumerated in

para 3 of the aforesaid order, would have to be selected on the basis of their interse merit in that category. Now, suppose there are two families

'X' and 'Y'. The father of each family has been killed in the act of terrorism. Family 'X' has three children and the family 'Y' has one child. Suppose

in the test held by the competent authority, the children of family 'X' have obtained higher marks than the only child of family 'Y', in view of para 3

'A' and 4(2) of the Government Order, all the three children of family 'X' will be nominated for the MBBS course whereas the lone child of family

'Y' will be rejected. Now, consider another scenario. Suppose the family 'X' is a welltodo family whose children have been receiving education in a

good college in the country like say, St. Stephens in Delhi. Suppose further that the child of the family 'Y' has been receiving education in a farflung

district like Kupwara, where the educational facilities, even in normal times, are poorer as compared to the educational facilities available at a good

college, like St. Stephens. Naturally, the child of family 'Y' cannot fare well because of the poor educational facilities as well as because of the fact

that colleges remain closed for most of the time in Kashmir. Is it equitable and fair that in, these circumstances, all the children of family 'X' should

be admitted whereas the only child of family 'Y' should be rejected? Should it advance the object purported to be achieved by the State

Government or it would subvert the very purpose and object sought to be achieved.

Similarly, in category 'B', as in category 'A', the main problem appears to be that it does not focus on the fact whether or not the child in question

has suffered from any disability or handicap so far as her education is concerned. It may very well be that the child of a person who is working for

the Government may be receiving education outside Kashmir valley and may not have suffered any educational handicap. Would it still be

constitutionally permissible to provide this kind of reservation to such a child? The matter of fact is that this kind of reservation, which is usually

availed of by those who are in high positions, despite the fact that their children may be receiving education outside the valley in good schools and

colleges, only demoralises other officers who are not in a position to garner these benefits and whose children continue to be trapped in the valley

of Kashmir and who have actually suffered from educational handicap.

Further, who has to decide and how can it be decided as to which of the officers out of thousands and thousands of people serving in the law and

order field are exposed to substantial risk? Again, what is there to show that a person is particularly on the hit list.

Even category 'C' suffers from gross infirmities. Some of the families who have migrated, whether Hindus or Muslims, have not suffered as much as

those who are left behind in Kashmir. In any case, their children have better educational facilities available to them as compared to the children of

the families who are still in Kashmir.

Some other problems and infirmities have been mentioned in the judgment of Division Bench of Srinagar Wing. The classification, in my

opinion, suffers from both the vice of noninclusion and overinclusion. It is unreasonable and arbitrary. Further, no machinery is provided to

determine whether or not a particular candidate actually fails within a particular category. No machinery is provided for raising objections against

inclusion or exclusion of any member. It may be pointed out that in other SROs, where reservation is provided for other categories, a machinery

has been provided for the redressal of grievances on account of inclusion or exclusion of a candidate in a particular category.

It is an established principle of law that where the classification is based on arbitrary criteria, it is unconstitutional.

E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

Mrs. Manika (Meneka) Gandhi v. UOI, AIR 1978 SC 597.

It may also refer to the judgment of the Supreme Court in Vajravelu Mudaliar v. Special Deputy Collector in AIR 1965 SC 1017. There it was

held that classification has to pass two tests, namely (i) it must be founded on an intelligible differentia which distinguishes persons and things left out

of the group; and (ii) the differentia must have a reasonable relation to the object sought to be achieved.

On top of it all, no notice was given of this case to those writ petitioners at Srinagar in whose favour the Division Bench at Srinagar has given a

decision, and which is, sought to be set at naught by the Full Bench. If we are required to hold any decision of either Division Bench good or bad,

in my opinion, we should give a notice to the concerned petitioners, as otherwise it would be condemning them unheard. There are about a

hundred writ petitioners whose cases were decided by the Division Bench at Srinagar, and they have no notice of the Constitution and hearing of

this Full Bench. It would be unjust to record a finding in respect of their cases without affording them an opportunity of being heard.

The nomination in question, in my opinion, have been and are being made without following the mandate of the judgment of the Supreme

Court, entitled : Suman Gupta v. State of J. and K., reported in AIR 1983 SC 1235.

The Supreme Court while disposing of SLP (Civil) 42084209 of 1993, against the decision of one of the Division Benches of this Court in

Puja Duloo's case, has held the manner in which nominations in question were made, as ""very unsatisfactory"" and their Lordships were bent upon

to upset the said nominations, but for the compromise arrived at between the patties in the said Court.

In my opinion, the Supreme Court has not upheld the constitutional validity of the classification in question in the judgment given in the SLP

referred to above. As a matter of fact, it has not gone into this question after the parties arrived at a compromise. The constitutional validity of the

classification in question is still in doubt, and is yet to be determined. One Division Bench of this Court has upheld the same, and the other

negatived it. The present Full Bench is not the proper forum to hear an appeal against the judgments of either of the Division Benches, and cannot,

therefore, set aside the same. The matter shall have to be decided by the Supreme Court, in any case. The judgment of the Supreme Court is

interpreted differently by different people, as it suits their convenience, and we are not in a happy position while sitting in Full Bench, and not

hearing any appeal against any judgment, and therefore, not in a position to affirm or averrule any of the judgments in question given by the Division

Bench.

The classification in question was made without there being any data before the Government; without conducting any survey and without

making a proper inquiry into it. It is nowhere provided in the Government order in question as to how the identification of the people is to be made

in any category and which is the authority competent to do it. Here it is to be kept in mind that it is the Government order which was considered by

the two Division Benches of this Court that is to be scrutinized by us and not any other order passed thereafter. We could not go into any

Government order which was not considered by such benches. In absence of any reasonable guidelines as to how the selection is to be made and

which was the authority competent to do it, the executive authorities did it according to their own sweet will, and distributed the largesse mostly in

between themselves in the way they liked.

Moreover, the nominations in question were made by the executive authority in a hush manner and without making any advertisement in this behalf.

It was never published in any proper manner. It was kept secret by them till they could. In that view of the matter, the said selections were made

arbitrarily by colourable exercise of power, and by no stretch of imagination, could it be legal. After all, if it is not known to people at large as to

how such selection was to be made and who was the authority to do it, and what was the procedure to be followed, and no advertisement was

made in this behalf, how could it be held reasonable. All this has happened when the selections in question were made, and the said selection was

in question before the concerned Division Benches and the decisions whereof are expected to be scrutinized by us. In my honest opinion, this

bench is not competent to do it, and we are not competent either to affirm or quash any of such decisions. We cannot render any advisory opinion

to the executive as to which way they should follow and nor should be put our seal of approval on the exercise of their arbitrary power in making

the selections without following the procedure as established by law.

This reference arises out of an application made by the State in terms of R. 18 of the High Court Rules, praying for an authoritative judgment,

and impliedly for undoing the effect of the judgment passed by a Division Bench of this Court in Qazi Yusra Aslam's case on 1391993. The fate of

this reference will be determined by an interpretation which this Bench places upon R.18 (supra). The question that arises for determination is as to

whether or not this Bench can adjudicate upon a reference when no case or point of law has been referred to the same.

Rule 18 reads as under:

18 Reference to a larger Bench The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law

formulated by a Bench hearing the case. In the later event the decision of such Bench on the question so formulated shall be returned to the Bench

hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any

arising therein.

Provided that whenever in any case a Division Bench differs from any other Division Bench of the Court on a point of law or usage having the

force of law such case or point shall be referred for decision by a larger bench to be constituted by the Chief Justice.

This Rule breaks up into two parts, the substantive part and the proviso added to the rule. So far as the substantive part of the rule is concerned, it

definitely relates to the reference of a case made by the Chief Justice for its decision by the larger Bench or one made by the Bench which wants a

point of law to be answered by the larger Bench. That Bench has to formulate that point and make a reference. No other situation is perceived by

this part. For the purposes of making things clear, though at the cost of repetition, let the proviso again be reproduced below :

Provided that whenever in any case a Division Bench differs from any other Division Bench of the Court on a point of law or usage having the

force of law such case or point shall be referred for decision by a larger bench to be constituted by the Chief Justice.

The first question that arises while interpreting this rule is as to whether the proviso to the rule can be read independently or in isolation to the

substantive rule. It is an established principle of law of interpretations that the proper function of a proviso is to deal with a case which would

otherwise fall within the general language of the substantive provision and its effect is to be confined to cases stipulated in that provision. A proviso

to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main

provision to which it has been enacted as a proviso and to no other. The object of a proviso is to except something from the main provision or to

qualify a situation that is contemplated by the provision. The scope of a provision generally is confined to the subject matter of the principal clause.

The proviso read in the background of the rule provides for an exigency where a Division Bench in a pending case wants to differ from any

earlier Division Bench of the Court, on a point of law or usage having the force of law, the Division Bench seized of the matter shall refer the case

or point for decision by a larger bench. Of course, the power of constituting such larger bench is with the Chief Justice.

Even if, we take the extreme position of reading the proviso independently, which can only be done in exceptional cases, we will have to note

with circumspection the words in any case', 'differs', 'shall be referred for decision by a larger bench to be constituted by the Chief Justice'. After

the words and expressions used in the proviso are noted, we come to the same conclusion and it becomes clear that it is the Division Bench

hearing the case which, if wants to differ from any other Division Bench on a point of law or usage having force of law, shall refer that point of law

for decision of a larger bench. In that view of the matter also the following features, to me, seem to constitute the pith and substance of this proviso

:

i) That a Division Bench while being seized of the case should show its intention to differ from the findings of an earlier bench.

ii) That such Division Bench should formulate a point on which it wants to differ;

iii) It is that Division Bench which should make a reference to a larger bench:

iv) That larger bench shall (obviously) be constituted by the Chief Justice.

Now taking R. 18 as a whole, following are the circumstances in which this rule can be pressed into service by constituting a bench of two or

more Judges :

a) When the Chief Justice wants a case to be decided by such bench;

b) When a question of law formulated by a bench which was hearing the case is required to be decided by such bench;

c) When a Division Bench proposes to differ from any other bench on a question of law or usage having force of law, it shall refer that case or

point of law for decision.

On the grammatic construction of this rule the Chief Justice is empowered to constitute benches in exercise of administrative powers vested in

him under Rule 18 of High Court Rules. He, under Rule 18 of course enjoys the added power to order that a pending case instead of being heard

by a single Bench or a Division Bench may be heard by a Full Bench. Beyond this power I do not find anything in this rule to suggest that the Chief

Justice can get a conflict resolved or a judgment set aside by making reference under the rule, without referring the case.

The next question that arises is whether there was a real difference in the two Division Benches. For rowing through this question it is interested

to note that the Jammu Bench in Pankaj Gandotra's case handed down the judgment on 1081992. The Government issued order No. 412 (TRG)

of 1992,titled as Jammu and Kashmir (Selection of Candidates for nomination to M.B.B.S. and B.D.S. courses to Central pool), on 1091992,

one month after. This order forms the present categorisation to nominations. The Division Bench in Pankaj Gandotra's case neither had this order

before it, nor has the same returned any formal opinion in respect of its validity, on the anvil of established standard of law. What in fact was done

was that nominations were upheld after admitting that some deserving cases were left out. That bench was conscious that proper categorisation

was yet to come into existence. This was why that Bench of the Court observed as under:

We are quite hopeful that before any appropriate action is taken for nominating the next batch of candidates, the State shall formalise, with

reference to relevant constitutional provisions and rules and regulations the guidelines etc. and the categories constituted or to be reconstituted

under these guidelines and, accordingly, as a consequence issue appropriate and suitable Government orders or notifications on the subject. We

do suggest, however, that while issuing such Government order or notification, the State shall also consider the question of reformulating the

guidelines or categories, especially with regard to the extent of allocation of seats against different individual categories, the minimum standards

expected of the intended nominees, and consequently, the prescription of such minimum standards, reallocation of seats and their automatic

transfer to open merit category if the candidates with the minimum expected standards prescribed are not available in or against a particular

category.

The Division Bench deciding Qazi Yusra Aslam's case seems to have proceeded to decide the case after ascertaining the fact that the decision

in Pankaj Gandotra's case did not stand in its way. This bench observed as under:

It is, therefore, established that neither the Division Bench judgment in Pankaj Gandotra's case nor the judgment of the Supreme Court in Kumari

Pooja Duloo's case prevented us from adjudicating upon the points referred to us. However, we propose to give due weightage to the judgment of

the Division Bench which decided Pankaj Gandotra's case being the bench of coordinate jurisdiction with respect to the points specifically dealt

with by the said bench are not impliedly set aside by the Supreme Court.

Abovesaid observations lead me to the following conclusions:

That neither any case has been referred to this Bench nor any point of law. What has been done is that two judgments have been referred to this

Bench asking it to pronounce upon constitutional validity of the categorisation made by the State Government for nominations to M.B.B.S. and

B.D.S. course, after the decision in Pankaj Gandotra's case was delivered. The object Sought to be achieved is that of resolving a conflict of views

between the two benches of the Court. There is, in fact, no conflict on any point of law. This has been done on an application made by the State

which has not chosen to go in appeal before the apex Court. In my opinion under Rule 18 (supra) there is no scope for resolving a conflict of views

or set at naught a judgment delivered by a Division Bench;

That the categorisation which has been struck down in Qazi Yusra Aslam's case had not come into existence on 1081992 when judgment in

Pankaj Gandotra's case was delivered. The guidelines which have come to be discussed in Pankaj Gandotra's case are materially different from the

categorisation which was held to be bad in Qazi Yusra's case. Therefore, this divergence in no case be termed to be a difference on a point of law.

So also Rule 18 is not applicable.

This reference is neither made by the bench which was hearing the case nor by a bench which wanted to differ from any earlier bench on a point

of law or usage;

4.Rule 18 does not empower the Chief Justice to take up a decided case and make reference of the same to a Full Bench for putting the judgment

to a further judicial scrutiny. That will be equivalent to taking Rule 18 to be a substitute for an appellate provision, which will be preposterous.

On the foregoing anology I do not find any substance in the application filed by the State. I find that this reference does not come within the

purview of Rule 18. I also find that there is no other provision of law under which this reference would be maintainable. The application filed by the

State is dismissed and reference answered accordingly.

This finding renders me unable to pass any verdict in respect of validity or otherwise of the categorisation or to be in a position to express my

opinion in respect of merits of the reference. The same is returned unanswered.