ORDER
1. The petitioners in these four writ petitions have prayed for issue of a writ of mandamus directing the Selection Committee constituted by the State Government for making selections for the 1st year M.B.B.S. course during the academic year 1980-81 to consider their cases for selection treating the candidates who have passed the Pre-University examination held in April, 1980 as a separate class.
2. All the four petitioners have passed the Pre-University examination held by the Pre-University Board of this State in April, 1980. The petitioner in W. P. No. 10081 of 1980 G. S. Radhika has secured 89.1% in the optional group consisting of Physics, Chemistry, Mathematics and Biology. The petitioner in W. P. No. 10562 of 1980 B. Srinivasa Mallya has secured 87.33% of marks in the optional group. The petitioner in W. P. No. 15103 of 1980 Vasudha Rao has secured 82.66% in the Optional Group. ‘I he petitioner in W. P. 15570 of 1980 has secured 79.66% in the Optional Group. The petitioners applied to the Selection Committee constituted by the State Government, seeking selection for admission to the I year M.B. B. S. course during the academic year 1980-81. They have not been selected. Hence they have presented these petitions.
3. The plea put forward by the petitioners in these writ petitions is that their right to equality guaranteed under Article 14 of the Constitution has been violated. This plea is raised on the basis of the following facts and circumstances: The petitioners are merited candidates and they have secured high percentage of marks in the Pre-University examination held in April. 1980. They have not been selected because. There were candidates who had secured more marks Wan the petitioners who had passed the Pre-University Examination held in April 1979. The students who have passed the Pre-University course in each examination conducted by the Pre-University Board constitute a separate and distinct class. Therefore in comparing the merit of the candidates, who have passed at different examinations amounts to violation of the right to equality guaranteed under Art. 14 of the Constitution in that by according similar treatment to persons dissimilarly situated.
In any event, there were sufficient grounds to treat the students who passed the Pre-University examination in April, 1979 and the Students who passed in April, 1980 as a separate and distinct class, because the Pre-University Board had given certain number of grace marks in the subject of Chemistry to all students who had appeared for the April 1979 examination whereas in respect of 1980 examination the Board had grace marks only to such of those students could obtain a pass on the addition of such grace marks. It is alleged that view of the different methods of award of grace marks by the Pre-University Board in respect of the April, 1979 examination and April. 1980 examination, large number of students who had passed the Pre-University examination held in April, 1979 and who failed to secure seats in the medical colleges during the academic year 1979-80 have been selected during the academic year 1980-81 and consequently large number of highly merited candidates – like the petitioners, who passed the Pre-University examination held in April, 1980 have been denied seats and consequently they have been subjected to flagrant discrimination in violation of Art 14 of the Constitution.
4. The State Government has framed rules called the. Karnataka Medical Colleges (Selection for Admission) Rules, 1980. Rule 2 of the said Rules prescribed the conditions of eligibility Similar rule had been in force during all the previous academic years during which selections ‘have been made for the medical course. According to the said Rule, the students who have passed the Pre-University examination with Physics, Chemistry and Biology – as optional group, or any other equivalent examination are eligible for consideration for selection to the admission to I year M. B, B. S. course. Only a few seats are reserved to be filled up from among the applicants who are graduates. Rule 10 of the Rules prescribes the procedure for selection. The relevant portion of the Rule reads as follows:
“The percentage of marks secured by the candidates in the optional subjects of II Year P. U. C. examination or in the final year degree examination referred to in R. 2 shall be taken into account for determining the merit.”
From the above Rule it is clear that the selection committee is bound to make selections strictly according to the merit determined on the basis of the marks secured by the applicants in the Pre-University examination. It is not the case of the petitioners that any candidate who had secured lesser marks than the petitioners in the Pre-University Examination has been selected. Therefore, it cannot be said ‘that the selection committee has made selection in violation of Rule 10 of the Rules which itself is incorporated to ensure against discrimination, because the Rule requires the selection committee to make selections strictly on the basis of the merit.
5. The first contention urged by Srivuths C. N. Kaniath, N. S. Srinivasan, Tomy Sebastian and P. Vishwanatha Shetty, learned Counsel for the petitioners, however, was that the candidates who have passed the annual Pre-University examination of different years are not similarly situated as in the nature of things, they appeared at different examinations, answered different question papers and valued by different examiners and, therefore, the marks and standard of merit secured by the candidates appearing in one examination cannot be compared with the marks and standard of merit secured by candidates appearing at another examination., They argued that comparison of merit as among two sets of candidates who had passed Pre-University Course at different annual examinations is violative of Article 14 of the Constitution on the ground of similar treatment of persons who are dissimilarly situated.
6. It is true the right to equality guaranteed under Art 14 stands violated either If similarly situated persons are subjected to dissimilar treatment without rational basis or if similar treatment is accorded to persons or things dissimilarly situated in other words making a classification for according differential treatment where ‘there is none or failure to make a classification where there ‘ is one justifying dissimilar treatment attracts the prohibitive injunction against unequal treatment incorporated in Art. 14. The question for consideration in these cases is whether there existed a valid basis for classification and there has been a failure on the part of the State to make the classification. In my view all the persons who acquire qualification by passing Pre-University Examination conducted by the Pre-University Board or any degree, diploma or certificate, after passing the prescribed examination conducted by any university or any degree academic authority which are considered as equivalent by competent bodies cannot on any rational basis be considered as persons dissimilarly situated on the ground that all of them did not appear at the same examination conducted by the same authority.
The contention urged for the petitioners, if accepted would destroy the very concept of academic equivalance of degrees, diplomas and certificates, awarded by different universities and academic authorities or institutions, and not only that, even similar degrees, diploma or certificates awarded by the same university or institution or authority for having passed at different examinations would not be equal to each other, either for making selection for higher courses or for even making selection for appointments under the State and consequently separate quota would have ‘to be reserved for the applicants who have passed in each examination and also to the applicants who have acquired degree, diploma or certificate from different universities or academic authorities. In fact, the petitioners are insisting for the making of a classification where there is absolutely no basis for classification. Therefore, -I reject the first contention.
7. Learned Counsel for the petitioners next submitted that even assuming that normally all the candidates who have secured the same or equivalent qualification can be regarded as equal and similarly situated and marks secured by them could be compared to adjudge their merit for purposes of selection for admission to medical colleges or for any other purpose, in so far it related to the students who have passed the Pre-University Examination held in April, 1979 and April, 1980, they are entirely dissimilarly situated in view of the different methods of moderation and gracing of marks adopted by the Pre-university Board.
8. The method of moderation ad6pted in respect of the Pre-University’ examination held in April, 1979 and in respect ‘of the Pre-University Examination held in April 1980 by the Pre-University Board were produced by the learned Counsel for the respondents. They read thus:
I.” Extracts from the proceedings of the meeting of the Board of Pre-University Education held on 1-6-1979:
“Consideration of Pre-moderation Statistics pertaining to ‘the results of I and Il Year Pre-University Examinations held during April, 1979.
The Pre-moderation Statistics, a note thereon and the vital statistics had been given to all the members. The Director read out the report of the Chief Examiners. The Chairman invited the opinion of the members.
Dr. Savadatti, while initiating the discussion desired that the percentage of passes in different faculties like Arts, Commerce and Science should be given. The Director explained that it was not -possible since there is no rigidity in combinations of subjects.
After detailed discussion it was resolved to give moderation marks to all candidates as noted below-
P. U. C. I YEAR
Subject Moderation marks to be given
…………… ……………………… …………………..
P. U. C. 11 YEAR
1. Chemistry (10) ten marks
...... ...... .......
It was also resolved that adding of moderation marks should not entitle a candidate to go beyond 90 in subjects whose maximum is only 90 in Theory papers and beyond 100 in subjects whose maximum is 100."
II. "Extract from the Proceedings of the meeting of the Board of Pre-University Education held on 24-5-1980.
Consideration of the Pre-moderation Statistics pertaining to the results of 11 Year Pre-University Examination held during April 1980.
The Pre-moderation Statistics and notes on Pre-moderation statistics were given to all the members. The Director read out the, report of the Chief Examiners on the performance of candidates, After going through the percentage of passes in different subjects, it was resolved by the Board after detailed discussion that grace marks of Five (5) be given to each of subjects where the percentage of passes is less than 50 and Three (3) marks where percentage of passes is more than 50 and less than 70. The gracing is only to enable the candidates to obtain a pass. Thus the grace marks will be added to the subjects as noted below:
SI. No. Subject Grace Marks ** ** ** 5 Chemistry 5 ** ** ** (Underlining by me)
9. Learned Counsel for petitioners pointed out that while ten marks were added in Chemistry to all the candidates who had appeared for the 1979 examination, in respect of 1980 examination only five marks were given and even that was only to such of the students who bad failed, if it enabled t hem to get a pass; and not to the petitioners. Therefore, they submitted that the marks or merit of the candidates who passed in the 1979 examination on the basis of which they have secured the seats was an inflated merit and not real, and therefore the merit of the petitioners, who passed the Pre-University examination held in April, 1980 cannot be compared with the merit of the candidates who passed the Pre-University Examination held in April, 1979. They submitted that it is on account of the different methods of gracing the petitioners who in the normal course could have secured seats in the I Year M B. B S., course have been subjected to discrimination.
10. In my view, the question whether the Pre-University Board was justified in adopting different methods i. e., moderation and gracing for the years 1979 and. 1980 respectively as has been indicated in its proceedings in respect of examination held in April, 1979 and the proceedings in respect of examination held in April, 1980 is not at all a relevant question for consideration in these petitions. The only question, which is relevant for consideration in these petitions, is whether the procedure adopted by the selection committee in comparing the marks of the candidates secured in the Pre-University examination without classifying them as candidates who have passed the Pre-University Examination in different years was violative of Article 14 of the Constitution.
As stated earlier, the passing of Pre-University examination is a condition of eligibility for selection for admission to the I Year M. B. B. S., course under R. 2. Similarly under Rule 10 the merit of candidate is required to be adopted on the basis of the marks secured by the candidates at the Pre-University Examination. The question as to in which year, a candidate had passed the Pre-University examination is not at all relevant for adjudging the merit. All the candidates who have acquired the same academic standard, namely, by passing Pre-University examination or any equivalent examination are similarly situated and there is no basis for treating candidates who have passed Pre-University’ examination in different years dissimilarly. Therefore the selection committee was right in comparing the merit of the candidates on the basis of the marks secured by the candidates in the Pre-University examination without going into the question as to the years in which they passed the Pre-University examination. The selection committee had no authority to enquire into the correctness of the marks entered in the Pre-University marks card given by the Pre-University Board to various candidates after calling for the methods of valuation or moderation and gracing adopted by the Board.
11. Apart from this it is difficult to say that the merit of the candidates who appeared for 1979 examination was inflated or that the Pre-University Board had adopted discriminatory methods of gracing. As is clear from the -proceedings in respect of 1979 examination the Pre-University Board after considering the pre-moderation statistics decided to award moderation marks and in respect of 1980 examination they decided to award only ‘grace marks’. The difference between moderation marks and grace marks is implicit from the proceedings. Moderation marks were awarded to all the candidates. Obviously for the reason that moderation marks are meant to make up of compensate for any disadvantage suffered by the examinees in securing the marks on account of unreasonably stiff question paper set by any examiner or for having included a question or questions outside the syllabus in any question paper or for such other valid reasons considered good by the concerned University or academic body.
Therefore, it is not correct to say that when moderation marks are given the marks arrived at after the addition of moderation marks do not represent the real merit of the concerned candidate, Grace marks are awarded, only to help border line cases i. e., to help the candidates who have failed to secure a pass by a very narrow margin, to secure a pass and therefore given to such candidates only, Therefore, when a body responsible for the conduct of Pre-University examination decided to give moderation marks for the 1979 examination after due deliberation, it should be presumed that they did so for good and sufficient reason. Similarly, when they decided to give only grace marks and not moderation marks for 1980 examination it should be presumed that in their considered opinion there was no case for awarding moderation marks in respect of that examination.
Prima facie, it appears to me that such a decision of an academic body is not open to judicial review. In any event, in a writ petition in which the petitioners are complaining about the procedure adopted in making the selection for admission to I Year M.B.B.S. Course, which is strictly made in accordance with the marks secured by the candidates in the Pre-University examination, the validity of the marks awarded by the Pre-University Board cannot be gone into. Even assuming that such a decision by the Pre-University Board is open to challenge in a petition under Article 226 of the Constitution by a person aggrieved, it C07olitutes entirely a different cause of action and cannot be mixed up with the question of selection for admission made by the selection committee constituted for that purpose which had no power to question the correctness of marks awarded by flag Pre-University Board.
Further, the candidates who had appeared for the Pre-University, examination held April, 1979 and who are beneficiaries of the decision of the Pre-University Board on the question of moderation marks are not parties to these petitions and no decision can be rendered to their prejudice without they being parties to the petitions and without hearing them.
12. Learned Counsel for the petitioners submitted that the petitioners and others who passed the Pre-University examination held in April, 1980 have been seriously prejudiced as large number of candidates who passed the Pre-University examination held in April 1979 and who did not secure admission to I Year M. B. B.S., course during the last academic year have secured seats this year to the exclusion of the petitioners and this would result in permanent deprivation of the petitioners’ right to acquire medical qualification. In fact, they submitted that as many as 2/3 number of seats available for Pre-University passed students in the I Year M. B. B: S., course during the current academic year have been taken away by the candidates who passed the Pre-University examination last year.
I see considerable force in the submission made for the petitioners. Irrespective of the question whether the Pre-University Board was justified in awarding moderation marks in 1979 and only grace marks in 1980. the fact remains that the” petitioners and others who appeared/for Pre-University Examination held in April, 1980 have been seriously prejudiced. ‘The hardship caused is of such a nature which could be remedied Only by the executive, by making a special provision either by increasing certain number of seats in the medical colleges during this academic year for the benefit of the candidates who passed in 1980 examination or by ear-marking a reasonable percentage of seats in the next academic year for consideration of the candidates like the peti tioners who have not been able to secure seats in the medical college, though they have secured high percentage of marks. Therefore, it is necessary to observe that ‘notwithstanding the dismissal of these petitions, it is open, for the petitioners to make representation before the State Government and it is for the State Government to consi der such representation and to accord relief to them in such manner as they consider appropriate.
13. For the reasons the following order:
(i) Rule discharged.
(ii) Writ petitions, dismissed.
(iii) No costs.
Sri G. R. Nataraj is permitted to file memo of appearance in two weeks.
14. petitions dismissed.
