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CASE NO.:

Appeal (civil) 7366 of 1996

PETITIONER:

A.I.I.M.S. STUDENTS UNION

Vs.

RESPONDENT:

A.I.I.M.S. & ORS.

DATE OF JUDGMENT: 24/08/2001

BENCH:

CJI, R.C. Lahoti & Shivaraj V. Patil

JUDGMENT:

WITH C.A. Nos.7367/1996

J U D G M E N T

R.C. Lahoti, J.

Delhi, the National Capital of the country is also the seat of the

All India Institute of Medical Sciences, better known as AIIMS, an

autonomous premier institution of national importance.

AIIMS __ an institution of excellence for excellence :

The Health Survey and Development Committee, popularly

known as the Bhore Committee, in its report published in 1946

recommended the establishment of a national medical centre at Delhi

which will concentrate on training well qualified teachers and research

workers in order that a steady stream of these could be maintained to

meet the needs of the rapidly expanding health activities throughout

the country. After the attainment of independence, the Union Ministry

of Health proceeded to implement the challenging idea. A munificent

grant of one million pounds by the Government of New Zealand

through the Colombo Plan helped to translate the idea into a reality.

An Act of Parliament in 1956 established the All India Institute of

Medical Sciences (AIIMS) as an autonomous institution of national

importance and defined its objectives and functions. [see - Prospectus

Postgraduate Courses, January 1996].

The All India Institute of Medical Sciences Act, 1956

(hereinafter the Act, for short) sets out the Statement of Objects and

Reasons as under :-

For improving professional competence

among medical practitioners, it is necessary to

place a high standard of medical education, both

post-graduate and under-graduate, before all

medical colleges and other allied institutions in the

country. Similarly, for the promotion of medical

research it is necessary that the country should

attain self-sufficiency in post-graduate medical

education. These objectives are hardly capable of

realisation unless facilities of a very high order for

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both under-graduate and post-graduate medical

education and research are provided by a central

authority in one place. The Bill seeks to achieve

these ends by the establishment in New Delhi of an

institution under the name of the all-India Institute

of Medical Sciences. The Institute will develop

patterns of teaching in under-graduate and post-

graduate medical education in all its branches so as

to demonstrate a high standard of medical

education to all medical colleges and other allied

institutions, will provide facilities of a high order for

training of personnel in all important branches of

health activities and also for medical research in its

various aspects. The Institute will have the power

to grant medical degrees, diplomas and other

academic distinctions which would be recognised

medical degress for the purpose of the Indian

Medical Council Act, 1933.

A reference to a few provisions of the Act is apposite. Section 5

declares that the Institute shall be an institution of national

importance. Section 13 specifies the objects of the institute as under:

(a) to develop patterns of teaching in under-

graduate and post-graduate medical

education in all its branches so as to

demonstrate a high standard of medical

education to all medical colleges and other

allied institutions in India;

(b) to bring together in one place educational

facilities of the highest order for the training

of personnel in all important branches of

health activity; and

(c) to attain self-sufficiency in post-graduate

medical education.

With a view to promote the abovesaid objects, the functions of

the Institute are specified in Section 14 which include amongst others

establishment of one or more medical colleges, a dental college, a

nursing college and several other institutions. The Institute is not only

to produce graduates and post-graduates of outstanding excellence, it

is also to train teachers who in their turn would impart instructions in

the different medical colleges in India. To achieve the objects and

discharging the functions, the Institute is empowered to hold

examinations and grant degrees, diplomas and other academic

distinctions and titles of under-graduate and post-graduate level.

Section 23 opens with a non-obstante clause giving the provision an

over-riding effect on the provisions of Indian Medical Council Act, 1933

and declares that the medical degrees and diplomas granted by the

Institute shall be recognised medical qualifications for the purpose of

that Act, thereby entitling the holders to the same privileges as those

attached to the equivalent awards from the recognised Universities of

India.

In the field of postgraduate education the most important

function of the Institute is to provide opportunities for training

teachers for medical colleges in the country in an atmosphere of

research and enquiry. The postgraduate students are exposed to the

newer methods of teaching and given opportunities to actively

participate in teaching exercises. The other important objectives of

the Institute are to bring together in one place educational facilities of

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the highest order for the training of personnel in all the important

branches of health activity and to attain self-sufficiency in

postgraduate medical education. The educational principles and

practices being adopted are those which are best suited to the needs

of the nation.[See - Prospectus, Postgraduate Courses, July 2000].

The claim made by the Institute in its prospectus released from

time to time is not so truthful as it professes to be, is a judicial finding

arrived at, in the judgment under appeal by a Division Bench of the

High Court of Delhi presided over by the Chief Justice.

The controversy - an exposure into reality :

Three meritorious students aspiring for achieving excellence in

the field of medical sciences by availing opportunity of receiving

instructions and doing research in the premier medical institution of

the nation in the year 1996, knocked the doors of Delhi High Court by

filing a writ petition and complaining that the system, as devised by

the Institute, of reservations and blocking the seats in the process of

allocation through counselling was resulting in sacrificing merit and

prestigious post-graduation seats in creamy disciplines being usurped

by such candidates who were far far below in merit compared with the

petitioners. The Delhi High Court dug deep into the relevant records of

the Institute and penetrated its searching eyes into correspondence

exchanged between the Central Government and the Institute. All this

exercise led the Delhi High Court into finding itself stunned to see, to

borrow the expression employed by the learned Chief Justice of Delhi

High Court and havoc being played with the laudable aims and

objectives on which the premier Institute of Medical Sciences was

founded and was intended to achieve.

On 3.12.1995 an all-India entrance examination for admission

to post-graduate courses in AIIMS was held. Any medical graduate

who had secured a minimum of 55% marks in MBBS examination was

eligible to participate in the entrance examination. The three writ-

petitioners who were medical graduates having qualified from

colleges/universities other than AIIMS participated in the examination.

The exact number of seats available for graduate and post-

graduate seats in the Institute by reference to the time when they

were made available initially at the commencement of these courses of

study cannot be ascertained from the record as it stands. For our

purpose it would suffice to notice that in the year 1958 the Institute

made provision for 40 seats for graduation and 120 seats for post-

graduation. We are told that though the number of seats for

graduation remains almost the same however the number of seats for

post-graduation in different disciplines taken together has been

increased to 132 some time in the year 1975.

The writ petitioners had sought for admission in postgraduate

courses for January session. The Institute conducts examinations for

admission to postgraduate courses of study twice in a year for its two

sessions commencing respectively in January and July each year. The

prospectus issued in September 1995 declared that the selection shall

be on merits. However, 1/3rd of the seats were reserved for in-house

candidates of the Institute. Two separate merit lists were to be

prepared for the two categories. Each candidate was to be permitted

to opt for two specialities/courses of M.D./M.S. and the allocation was

to be through counselling subject to availability of seats. Not only

33% of the available P.G. seats were reserved for the Institutes in-

house candidates to begin with, there was yet another level of

reservation for the in-house candidates of AIIMS. Such subsequent

reservation provided for reservation in favour of in-house candidates,

of 50% seats discipline-wise, subject to an overall reservation of 33%.

At the counselling, the Institutes in-house candidates were given a

priority by being called first in point of time and they having been

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allotted seats in P.G. disciplines, the general category candidates - the

name denoting the category of students other than in-house

candidates of AIIMS __ were then called and allocated the seats left

over by the in-house candidates.

The result of the common entrance examination was declared

on 8.1.1996 for 100 seats. The writ-petitioners nos.1 to 3 secured

ranks 10, 12 and 89 respectively. The total number of seats available

for allocation in January 1996 was 83. The reservation of seats,

according to the prospectus, was as follows :

(1) Scheduled Castes 15%

(2) Scheduled Tribes 7.5%

(3) Quota for Rural/BW/FM of AIIMS (those who 33%

served in rural area or belong to backward area

or have worked in Family Welfare programmes)

(4) MBBS students from AIIMS 33%

(5) Balance for open category 39.5%

The prospectus also declared that only such candidates as have

secured 65th percentile or higher marks in the entrance examination

shall be eligible for admission to postgraduate courses. The

SC/ST/RBF candidates of AIIMS will be considered for the Institute

graduates quota and open general category if they had secured marks

corresponding to the 65th percentile or higher in postgraduate entrance

examination. The corresponding cut-off marks for reserved quota of

SC/ST/RBF candidates shall be 60th percentile or higher in the entrance

examination. The department/discipline-wise reservation was set out

in the scheme of allocation as follows :-

The seats shall be allocated on the basis of merit

by a process of counselling. Not more than 50%

seats in any department/discipline will be reserved

for AIIMS graduates subject to the overall

reservation of 33% of all Post Graduate seats. A 7-

year roster of seats in different

departments/disciplines is prepared for allocation of

seats.

The scheme contained a tabular statement described as session-wise

allocation of seats for the year 1996 for reserved categories (SC,ST

and Rural) at AIIMS PG Entrance Examination. How these reserved

seats were distributed, it would suffice to demonstrate by setting out

reservation in one of the disciplines only, by way of example. The

reservation of seats made in the discipline of Obstetrics &

Gynaecology was as under:-

Obst. & Gyn : Jan. Seats July Seats Total

4 2 6

S.C. S.T. AIIMS Open General

Jan. July Jan. July Jan. July Jan. July

1 - 1 - 2 1 - 1

Thus for the January 1996 session the seats were four out of

which two would go to SC and ST candidates and two would go to

AIIMS students. No seat was thus left available for the open general

category in January session and out of the two seats available in July

only one could be allocated to open general category candidate.

The writ-petitioners before the High Court sought for striking

down the policy of reservation in favour of institutional candidates as

unconstitutional and fresh allocation of seats consequent thereupon.

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The three writ-petitioners before the High Court had impleaded

only the Institute as respondent. During the course of hearing the High

Court felt the necessity of impleading the Medical Council of India and

the Central Government also as parties before it and that was done.

All India Institute of Medical Sciences Students Union sought for

intervention at the hearing which was allowed.

It is not necessary to set out in details the pleadings of the

parties and the several issues of law arising therefrom in very many

details. It would suffice to state that the Institute, the Central

Government and the Students Union all offered a vehement

opposition to the reliefs sought for by the writ-petitioners on grounds

more or less common to each other. Further it would serve our

purpose to briefly sum up the facts found and the findings on issues

of facts and law arrived at by the High Court so as to highlight the

core of controversy around which the learned counsel for the parties

have made their submissions before us.

Issues before, and Findings arrived at by, the High Court :

The High Court keeping in view the pleadings of the parties and

the submissions made by the learned counsel for different parties

appearing before it framed the following points for consideration and

decision:

(1) Does AIIMS have a special status as per the AIIMS Act, 1956

and can the reservation of 33% for AIIMS students introduced

in 1978 be justified on the basis of principles applicable for a

Universitywise quota?

(2) Whether, in law, the principle of institutional continuity is no

longer acceptable because of the judgments of the Supreme

Court in Thukral Anjalis case, (1989) 2 SCC 249 and in P.K.

Goels case, (1992) 3 SCC 232 ?

(3)a) Whether alternatively, even if it is permissible to have

institutional quota, the 33% quota for MBBS students in P.G.

Courses in a national Institute like the AIIMS, which is expected

to be premier institute in medical education, teaching and

research is on facts not permissible.

(b) Whether, alternatively, the events which have transpired from

1978 when the 33% quota was first introduced till it was

withdrawn on 24.10.1994 and was reintroduced on 17.12.1994

have shown considerable deterioration in AIIMS standards so

as to justify withdrawal of the 33% quota?

(4) In any event, is discipline/department wise quota as per the

scheme of 17th January 1996 valid and is it contrary to the

judgement of the Delhi High Court in Dr. Sandeep Tak Vs.

AIIMS (C.W. 2347/95) dated 11.9.1995?

(5) Is the counselling procedure of 17th January 1996 valid, if it is

based on discipline-wise reservation for AIIMS students (other

than SC/ST students)?

(6) Whether the 65 percentile method is valid?

(7) What is the relief to be granted in the writ petition?

It will be useful to precis the detailed findings arrived at by the

High Court, which we do as under :

Point Nos. 1 & 2 : The Institution based preference on which is

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founded 33% reservation of postgraduate seats in favour of AIIMS

students has no justification on the principle of institutional continuity

or on the principle of regional requirement. Neither it can be said that

the candidates falling in this category belong to a particular region nor

are they going to settle down in Delhi. This Court has not recognised

the principle of institutional continuity as providing reasonable basis

justifying carving out of a category for the purpose of reservation nor

does it help in achieving the aims and objectives with which this

premier institution of the country was established rather it is counter-

productive to the laudable object of achieving excellence in the field

of medical sciences and heath services of the nation. After the

decision of this Court in the case of Dr. Pradeep Jain etc.etc. Vs.

Union of India & Ors. (1984) 3 SCC 654 there are 2000 seats

available throughout the country against which the AIIMS students

can also compete. Thus there is no justification left after the year

1984 for continuing this category of reservation created in the year

1978.

The High Court found out the manner in which the 33%

reservation in favour of AIIMS students both at the level of the

entrance and then at the level of disciplinewise allocation of seats was

actually working up to date. For that purpose the High Court

analysed the statistics of five years, i.e., July, 1992 to January, 1996

(both inclusive) and prepared the following table :

TABLE

Session % AIIMS SC ST Open General

July92 Lowest 31.5 20.66 36.00 47.0

Jan.93 Lowest 14.7 28.16 31.5 42.6

July93 Lowest 22.16 36.16 31.33 49.50

Jan.94 Lowest 24.33 40.50 38.33 54.67

July94 Lowest 19.83 31.50 31.50 50.0

Jan.95 Lowest 31.33 41.1 31.66 47.33

July 95 Lowest 38.00 22.6 37.17 46.33

Jan.96 Lowest 46.167 46.167 45.500 61.333

(33% + Percentile 65%)

The statistics so tabulised led to the following inferences being

drawn by the High Court :-

(i) That AIIMS students who had secured marks as low as 14% or

19% or 22% in the entrance examination got admission to PG

courses while scheduled castes or scheduled tribes candidates

could not secure admission in their 15% or 7% quota in PG

course in spite of having obtained marks far higher than the in-

house candidates of the Institute.

(ii) The figure of 33% reservation for in-house candidates was

statistically so arrived at as to secure 100% reservation for

AIIMS students. There were about 40 AIIMS candidates. The

PG seats being 120, 33% thereof worked out to be 40;

meaning thereby all the 40 AIIMS graduates were 100%

assured of PG seats.

Point No.3 : In spite of facility of having instructions and conducting

research in the premier institution of the country, the reservation in

favour of AIIMS in-house candidates was resulting into complacence

and deterioration of standards. During the period July 1992 to July

1995 the AIIMS in-house candidates could hardly secure notable place

amongst the first 100 meritorious candidates. These were the

number of AIIMS graduates securing a place amongst the first 100 in

the order of merit at the entrance examination for PG courses :-

Number of candidates from AIIMS in first 100 ranks

1. July 1992 3

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2. Jan.93 14

3. July, 1993 1

4. Jan. 1994 4

5. July, 1994 2

6. Jan. 1995 7

7. July, 1995 3

The above is a bare spectacle. And yet the seats in creamy

discipline were being appropriated by the AIIMS in-house candidates.

This deterioration in academic standards was contributed by the

students as well as the teachers. Because of the students being

assured of a seat in PG course of study, they were not working hard

and the teachers too were not putting in their best while imparting

instructions. The reservation was thus proving to be counter-

productive.

The High Court found that the reservation of 33% PG seats in

favour of AIIMS in-house candidates was not an objective policy

decision arrived at on considerations of public good. In the year 1978

this reservation was introduced on account of demand made by the

students union which was resorting to agitation and dharnas. The

Central Government found such reservation not in public interest and

hence it was withdrawn on 24.10.1994. The withdrawal sparked off

once again agitations and dharnas by the members of the Union and

the Central Government had to kneel down before the students within

two months of the withdrawal resulting into the reservation being

restored on 17.12.1994. The reservation in favour of AIIMS

candidates was, thus, not a decision taken with objectivity and by due

application of mind to all relevant facts but only under pressure of

agitating AIIMS Students Union.

Point Nos.4 & 5 : The High Court prepared a chart and set out the

same in its judgment showing disciplinewise allotment of seats from

July 1992 to July 1995, also showing the percentage of marks and

rank in the merit secured by the AIIMS in-house candidates who could

succeed in securing allocation of seats mostly in creamy disciplines

compared with the percentage of marks and the high ranks secured

by open general category candidates and yet either denied a seat or

allocated a seat in lesser important disciplines. We need not burden

this judgment by reproducing the long table running into pages set

out in the judgment of the High Court. We would just highlight the

deductions drawn by the High Court, culled out from its judgment,

and briefly set out as under:-

(i) The petitioner no.1, having secured rank 10 and marks

68.667%, had opted for M.D. Obstetrics and Gynaecology and MD

Physiology while petitioner no.2 having got rank 12 with 66.667%

marks had opted for MS Orthopaedics and M.D. Medicines. At the

counselling none of the two got the seat of his choice. At the same

time AIIMS students with marks 52% and 46.167% respectively and

rank beyond 450 and 900 respectively got PG seats in such

disciplines. At another allocation a general category candidate having

secured 75.67% marks and the top rank, i.e., the first was denied a

discipline of his choice.

(ii) All the creamy discipline such as Obstetrics and Gynaecology,

Medicines, Orthopaedics and Opthalomology were being appropriated

by the AIIMS in-house candidates though lower in merit while the

meritorious open general candidates were either being denied a seat

or were being pushed to the left-over disciplines. Such reservation

was working havoc and was indeed a very sorry state of affairs.

Point 6 : The percentile method along with 33% quota and 50%

quota disciplinewise subject to an overall 33% quota for AIIMS

students was arbitrary and unreasonable. In January 1996 session,

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an AIIMS student with 46.167 marks got admission; that being the

lowest mark for the AIIMS students who got admission in PG course.

At the same time, an SC candidate with 46.167 marks got admission

that was also the lowest mark among SC candidates who secured

admission. Candidates with as low as 52%, 48%, 48.333% and

46.167% from AIIMS got admission and also got the creamy

disciplines such as Obstetrics & Gynaecology, Medicine and

Ophthalomology while SC students with 52%, 51.333%, 50.167%,

47.833%, 47.167%, 46.667%, 46.500% and 46.167%, 47.833%,

47.167%, 46.667%, 46.500% and 46.667% got admission. While SC

candidate of 46.167% got Community Medicine, AIIMS candidate with

46.167% was given the creamy subject of Obstetrics and

Gynaecology. Twelve AIIMS candidates were selected even though

they got less marks than the SC candidate who secured 60.33%

marks. Similarly sixteen AIIMS students got admission to PG courses

even though they got less marks than the ST student who got

62.167%.

Under the 65% percentile method, even if we take the 35%

candidates who are at the top of the merit list, the AIIMS students are

able to get in even though their marks are less than or comparable to

marks of SC/ST students. Further, there being no minimum

qualifying marks, in the top 35% even if the lowest is quite a low

mark, yet he would get in. That is not what is expected of an

Institute like AIIMS. For the above reasons, the High Court was of

the view that the percentile system does not also assure an equitable,

fair or reasonable result.

Point 7 : In view of the findings arrived at, the High Court struck

down 33% quota carved out in favour of the AIIMS in-house

candidates both at the entry level as also disciplinewise. However, the

High Court made incidental directions excluding rigorous application

of its decision to the January 1996 session so as not to prejudice the

career of such AIIMS students who had already got in. The High

Court also made it clear that the reservation in favour of SC, ST

students being constitutional, as also the reservation in favour of

rural/backward/family welfare students, were left untouched as they

were not under challenge.

Appeals and Points for Decision :

Feeling aggrieved by the judgment of Delhi High Court, AIIMS

Students Union and the Institute have filed these appeals by special

leave. We place on record at the very outset that correctness of the

factual findings arrived at by the High Court has not been disputed by

any of the parties before us. At the hearing, though the learned

counsel for the appellants have raised several contentions they can be

crystallised into two. Firstly, it is contended that what has been

provided for the institutes candidates is not a reservation in the

sense in which it is understood in Constitution. The term reservation

has been loosely employed here; what has been provided for is

merely a source of entry or a channel for admission the validity

whereof is not required to be tested on the principles having

relevance for Articles 15 and 16 of the Constitution. Secondly, it was

submitted that reservation, if that be so, in favour of the students

who graduated from the Institute, is justified while seeking

admission to post-graduate courses of study on the well accepted

principle of institutional continuity. It was submitted that

appropriation of 33% of the total post-graduate seats exclusively for

the institutes candidates does not harm the general or open category

candidates. If this protection was withdrawn, the institutes

candidates who had proved their all-India excellence while seeking

admission in under-graduate level of study in the Institute, shall be

thrown once again to swim into deep waters of all-India quota pooled

from medical educational institutions of the country and the

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requirements of domicile, bonafide residence and institutional

reservations applied by various universities and colleges of the

country would create obstacles in their way and they may sink for

good. We will test the validity and worth of the submissions so made.

Reservation or only a source of entry :

Placing reliance on K. Duraisamy and Anr. etc.etc. Vs. The

State of Tamil Nadu and Ors. - JT 2001 (2) SC 48 it was contended

by the learned counsel for the appellants that the reservation of 33%

post-graduation seats in favour of AIIMS students is not a reservation

and use of the expression reservation in this context is misplaced.

In fact, there are two sources of entry to P.G. courses of study in

AIIMS which are: (i) in-house candidates of AIIMS, and (ii) open-

category candidates i.e. students other than from AIIMS. The ratio of

entry between the two sources is 33:67, that is to say, for admission

as against 33% PG seats there is a competition as amongst the

students who have passed MBBS examination from AIIMS and they

get admission in accordance with the order of merit within their

category. The remaining 67% PG seats are available for open

category candidates, that is, left open for students other than AIIMS

and they get admission in the order of merit prepared out of the

candidates belonging to such open category, subject to reservations

within that category. The learned counsel for the appellants further

submitted that in K. Duraisamys case, this Court has upheld the

legality and permissibility of defining and laying down such two

sources of entry and the principles applicable to constitutional

reservations for scheduled caste, scheduled tribe and backward

candidates cannot be applied to test the validity of two sources of

entry to PG courses of study by treating one of the sources of entry

as reservation in favour of AIIMS candidates. We are not impressed.

K. Duraisamy and Anr.s case was one where limited seats

available for post-graduation were equally divided between in-service

candidates, i.e., doctors already in the employment (of Government

and Semi-Government bodies) and open category candidates which

included all candidates, other than those falling within the definition of

in-service candidates. This Court held that the State Government had

undoubted power, as a matter of policy, insofar as the admissions to

super-speciality and P.G. Diploma/Degree/M.D.S. courses are

concerned to devise scheme or pattern of two sources of entry based

upon a broad classification into two categories, i.e. in-service

candidates and non-service or private candidates with each one of

them allocated exclusively for their own category of candidates 50%

of the seats; the ultimate selection for admission depending upon the

inter-se merit performance amongst their own category of candidates.

A candidate belonging to one category could not move across to the

other category and seek entry therefrom. The PG seats available for

candidates in each of the two categories were limited and the

aspirants in each category were much more than the number of seats

allocated to each source of entry. There was competition amongst

the candidates belonging to each category. It is not as if all the

candidates belonging to any of the two categories were completely

assured of availability of seats so as to take away the element of

competition and chances of failure for anyone in its entirety. Such

scheme envisaged not reservation but classification of the sources

from which admissions have to be accorded. This Court also opined

that the meaning, content and purport of the expression reservation

will necessarily depend upon purpose and object with which it is used.

It is to be noted that in K. Duraisamys case in-service candidates

did not belong to any weaker section of the society nor were one who

deserved or needed to be protected. The candidates in both the

categories were medical graduates. Some of them had done

graduation sometime in the past and were either picked up in the

government service or had sought for joining government service

because, may be, they could not get a seat in post-graduation and

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thereby continue their studies because of shortage of seats in higher

level of studies. On account of their having remained occupied with

their service obligations they became detached or distanced from

theoretical studies and therefore could not have done so well as to

effectively compete with fresh medical graduates at the P.G. Entrance

Examination. Permitting in-service candidates to do post-graduation

by opening a separate channel for admittance would enable their

continuance in government service after post-graduation which would

enrich health services of the nation. Candidates in open category

having qualified in post-graduation may not necessarily feel attracted

to public services. Providing two sources of entry at the post-graduate

level in certain proportion between in-service candidates and

otherwise candidates thus achieves the laudable object of making

available better doctors both in public sector and as private

practitioners. The object sought to be achieved is to benefit two

segments of the same society by enriching both at the end and not so

much as to provide protection and encouragement to one at the entry

level.

Reservation is guided by consideration of ensuring allotment of

a privilege or quota to, or conferral of state largesse on, a defined

class or category of limited persons dispensing with the need of

competition with another defined class of persons or remaining

persons. Beneficiary of reservation is necessarily a minor or smaller

group of persons which deservedly stands in need of protection or

push up because of historical, geographical, economic, social,

physical or similar such other handicaps. Persons consisting in

reserved category are found to be an under-privileged class who

cannot be treated on par with a larger and more privileged class of

persons and shall be denied social justice and equality unless

protected and encouraged. Sources of recruitment or entry are

carved out for the purpose of achieving a defined proportion of

intermingling at the target or destination between two or more

categories of such persons who though similarly situated or belonging

to one class to begin with, have stood divided into two or more

categories by fortuitous circumstances and unless allowed entry from

two separate sources one would exclude or block the other. No one

of the two classes can be said to be weaker than the other. The

factor impelling provision of different or separate sources of entry

may not provide justification for reservation. Two source of entry

ensure an equal distribution between two segments of one society.

The emphasis in reservation is on the subjects; the emphasis in

providing sources of entry is on the subject matter. Reservation is

protective discrimination; provision for sources of entry is aimed at

securing equal or proportionate distribution. The characteristics of

the two may to some extent be over lapping yet the distinction is

perceptible though fine.

In Kumari Chitra Ghosh & Anr. Vs. Union of India & Ors.,

(1969) 2 SCC 228, the test laid down for determining validity of

sources of admission are that the sources are properly classified

whether on territorial, geographical or other reasonable basis and

must have a rational nexus with the object of imparting a particular

education and effective selection for the purpose. In laying down

sources of entry there is no question of any preferential treatment

being accorded to any particular category or class of persons desirous

of receiving medical education over the other.

In our opinion, reliance by the learned counsel for the appellant

on the decision in K. Duraisamys case (supra) is entirely

misconceived inasmuch as the questions which are arising for decision

in the case before us are different and attract applicability of different

considerations. Institutes in-house candidates do not bear any

similarity with in-service candidates considered in K. Duraisamys

case so as to claim analogy with them and have the benefit of the

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ratio of K. Duraisamys case. Secondly, the question whether merit

can be sacrificed to such an extent as to be bidden almost a good-bye

resulting into candidates too low in merit being preferred to

candidates too high in merit and the margin of difference between the

two being too wide, did not arise for consideration before this Court in

K. Duraisamys case. We are dealing with a case where the division

of seats between two classes coupled with two level reservation and

unique percentile method has been so carved out, as if tailor-made,

as is resulting into a reservation which ensures allotment to the

extent of 100% of PG seats followed by guaranteed placement in the

choicest of creamy disciplines to the candidates belonging to one

category (i.e. Institutes in-house candidates) without regard to their

competitive merit. This is not a reservation but a super-reservation

and certainly not a source of entry. The first submission of the

learned counsel for the appellants therefore fails.

Reservation for institutional continuity at the cost of merit - if

sustainable and how far?

The principle of institutional continuity while seeking admission

to higher levels of study as propounded by the learned counsel for the

appellants though argued at length does not have much room

available for innovative judicial zeal to play, for the ground already

stands almost occupied by set of precedents, more so when we are

dealing with professional or technical courses of study. It would

suffice to have a brief resume thereof noticing the details wherever

necessary.

In The State of Andhra Pradesh & Ors. Vs. U.S.V. Balaram

& Ors. - (1972) 1 SCC 660 common entrance test was held for

admission to the first year integrated MBBS course and no distinction

was drawn between Pre-University course candidates (PUC) and

Higher Secondary Course candidates(HSC), both of whom had to get

at least 50% marks to be eligible for admission. But the discrimination

was made only after the entrance test was over by denying admission

to the PUC candidates who may have got higher marks than some of

the HSC candidates who got admission because of the 40%

reservation. This Court held that the State could prescribe the sources

for admission to the medical college but when once a common

entrance test was prescribed for all the candidates on the basis of

which selection was to be made the rule providing further that 40% of

the seats will have to be reserved for the HSC candidates was

arbitrary; firstly, because after a common test had been prescribed

there could not be a valid classification dividing the participants, and

secondly, even assuming that such a classification was valid it had no

reasonable relation to the object sought to be achieved, that is,

selecting best candidates for admission to the medical colleges; and

hence it was held to be violative of Article 14 and struck down.

In A. Peeriakaruppan Vs. State of Tamilnadu & Ors. -

(1971) 1 SCC 38 unit-wise distribution of seats said to have been

adopted for administrative convenience was struck down as it

obstructed achieving the intended object which was to select the best

candidates for being admitted to medical colleges.

In M.R. Balaji & Ors. Vs. State of Mysore & Ors., (1963)

Supp.1 SCR 439 what was put in issue was an order of Mysore

Government dated 31.7.1962 reserving 68% seats in technical

institutions for backward classes. The Constitution Bench of this court

held that the order fell foul of the Constitution as the classification

was based solely on considerations of castes, and secondly, because

reservation of 68% was not in consonance of Article 15(4) of the

Constitution. The Constitution Bench held __ if admission to

professional and technical colleges is unduly liberalised, the quality of

our graduates will suffer. That is not to say that reservation should

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not be adopted; reservation should and must be adopted to advance

the prospects of the weaker sections of the society, but in providing

for special measures in that behalf care should be taken not to

exclude admission to higher educational centres to deserving and

qualified candidates of other communities. A special provision

contemplated by Art. 15(4), like reservation of posts and

appointments contemplated by Art. 16(4), must be within reasonable

limits. The Constitution Bench held that if under the guise of making

special provision, practically all the seats available were to be

reserved by the State, that clearly would be subverting the object of

Article 15(4). Speaking generally and in broad way, a special

provision should be less than 50%; how much less than 50% would

depend upon the relevant prevailing circumstances in each case.

M.R. Balajis case (supra) dealt with constitutional reservation

under Article 15(4). In Dr. Pradeep Jain Vs. Union of India,

(1984) 3 SCC 654, a 3-Judges Bench of this court had an occasion to

examine the validity of reservation based on residence requirement

within the State or on institutional preference. P.N. Bhagwati, J. (as

His Lordship then was) during the course of the judgment held:

. . . . . . so far as admissions to post-graduate

courses, such as M.S., M.D. and the like are

concerned, it would be eminently desirable not to

provide for any reservation based on residence

requirement within the State or on institutional

preference. But, having regard to broader

considerations of equality of opportunity and

institutional continuity in education which has its

own importance and value, we would direct that

though residence requirement within the State

shall not be a ground for reservation in admissions

to post-graduate courses, a certain percentage of

seats may in the present circumstances be

reserved on the basis of institutional preference in

the sense that a student who has passed MBBS

course from a medical college or university, may be

given preference for admission to the post-

graduate course in the same medical college or

university but such reservation on the basis of

institutional preference should not in any event

exceed 50 percent of the total number of open

seats available for admission to the post-graduate

course. This outer limit which we are fixing will

also be subject to revision on the lower side by the

Indian Medical Council in the same manner as

directed by us in the case of admissions to the

MBBS course. But, even in regard to admissions to

the post-graduate course, we would direct that so

far as super specialities such as neuro-surgery and

cardiology are concerned, there should be no

reservation at all even on the basis of institutional

preference and admission should be granted purely

on merit on all India basis.

[Underlining by us]

It is thus clear that as far back as in 1984 this court has

disapproved reservations in postgraduate courses on the ground of

institutional preference though justified a reasonable institutional

preference being allowed, for the present, having regard to (i)

broader considerations of equality of opportunity; and (ii) institutional

continuity in education.

The facts of Dr. Jagdish Saran and Ors. Vs. Union of India

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- (1980) 2 SCC 768 are very near to the present case. Several facts

treated as relevant considerations which persuaded the Court in

laying down principles relating to such reservation bear a close

resemblance to those before us and it will therefore be relevant to

notice the case in somewhat details. The rule for selection of

candidates for post-graduation from amongst medical graduates until

April, 1978 provided for 52% seats of the total available being left

open for a combined merit list of Delhi University and other

universities medical graduates while 48% seats were reserved for

Delhi University graduates only. This rule was changed so as to

reserve 70% of the seats to Delhi graduates leaving the remaining

30% open to all including graduates of Delhi. The petitioner a

medical graduate from Madras University took the common entrance

test and secured enough marks to qualify for admission but was

turned down because of inflation in quota, from 48% to 70% plus, for

Delhi graduates exclusively. The University of Delhi contended that

an institutional quota is not a constitutional anathema because of

many universities adopting the exclusionary or segregative device of

de facto monopoly of seats for higher medical courses to its own

alumni which had persuaded Delhi University to reciprocate with such

inflated reservation. The students went on a fast unto death and the

Government had to intervene and save the situation by providing

larger reservation. Krishna Iyer, J. speaking for himself and O.

Chinnappa Reddy, J. placed on record admission of the Attorney

General agreeing that hunger strike cannot amend the Constitution

though it may set in motion changes in the basic law which must

withstand scrutiny on constitutional anvil. All grievance are not

constitutional. The primary imperitive of Articles 14 and 15 is equal

opportunity for all across the nation to attain excellence and this has

burning relevance to our times. Vide para 17, Krishna Iyer, J.

speaking for the majority posed a question to himself __ What if non-

Delhi students start a rival starvation exercise? That will lead to

testing the rule of law on the immolative or masochist capabilities of

affected groups and not on the articles of the Constitution or

provisions of the legislation. We cannot uphold the Delhi Universitiys

reservation strategy merely because government was faced with

student fasts and ministers desired a compromise formula and the

University bodies simply said Amen. The constitutionality of

institutional reservation must be founded on facts of educational life

and the social dynamics of equal opportunity. Political panic does not

ipso facto make constitutional logic.

Vide para 17, it was held that reservation for students of a

particular university is not sanctioned either by Article 14 or by Article

15. Delhi University students, as such, are not an educationally

backward class and, indeed, institution-wise segregation or

reservation has no place in the scheme of Article 15, although social

and educational destitution may be endemic in some parts of the

country where a college or university may be started to remedy this

glaring imbalance and reservation for those alumni for higher studies

may be permissible. Speaking generally, unless there is vital nexus

with equal opportunity, broad validation of university-based

reservation cannot be built on the vague ground that all other

universities are practising it - a fact not fully proved before the court

either. University of illegality, even if the artists of discrimination are

universities, cannot convert such praxis into constitutionality. Nor,

indeed, can the painful circumstance that a batch of medical

graduates demonstratively fasted in front of the Health Ministers

house, ipso facto legalise reservation of seats in their favour.

Krishna Iyer, J. opined that even in the areas where reservation

is constitutionally permissible it should be as an exception and not a

rule and subject to a few rules of caution : (i) that reservation must

be kept in check by the demands of competence. You cannot extend

the shelter of reservation where minimum qualifications are absent;

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(ii) all the best talent cannot be completely excluded by wholesale

reservation; (iii) need for protecting and giving a preferential push in

the interests of basic medical needs of a region or a handicapped

group cannot prevail at the highest scales of speciality where the best

skill or talent must be handpicked by selecting according to

capability. At the level of Ph.D, M.D. or levels of higher proficiency,

where international measure of talent is made, losing one great

scientist or technologist in-the-making is a national loss, the

considerations prevailing at the lower levels of education justifying

protective discrimination for locals and the handicapped group lose

their potency and importance. Here equality measured by matching

excellence, has more meaning and cannot be diluted much without

grave risk for pampering local feeling will boomerang; (iv) backward

regions and universities situated miles away from forward cities with

sophisticated institutions cannot be equated. The former, for

equalisation, need crutches and extra facilities to overcome injustice

while the latter already enjoy all the advantages of the elite and

deserve no fresh props. Else there will be double injury to claims of

equality of the capable candidates coming from less propitiously

circumstanced universities and societies. In conclusion the majority

opinion held that university-wise preferential treatment may be

consistent with the rule of equality of opportunity where it is

calculated to correct an imbalance or handicap and permit equality in

the larger senses.

When protective discrimination for promotion of equalisation is

pleaded, the burden is on the party who seeks to justify the ex facie

deviation from equality. The basic rule is equality of opportunity for

every person in the country which is a constitutional guarantee. A

candidate who gets more marks than another is entitled to preference

for admission. Merit must be the test when choosing the best,

according to this rule of equal chance for equal marks. This

proposition has greater importance when we reach the higher levels

and education like post-graduate courses. Reservation, as an

exception, may be justified subject to discharging the burden of

proving justification in favour of the class which must be educationally

handicapped - the reservation geared up to getting over the handicap.

The rationale of reservation in the case of medical students must be

removal of regional or class inadequacy or like disadvantage. Even

there the quantum of reservation should not be excessive or societally

injurious. The higher the level of the speciality the lesser the role of

reservation.

Dealing with Delhi, the majority opinion in Dr. Jagdish

Sarans case noted that it being the capital of the country,

population therein is drawn from all over the country because of the

vast official, political, parliamentary, judicial, educational, commercial

and other gravitational pulls. Movements, transfers and a host of

other factors contribute fluidity to Delhi population. Delhi University

is not made up so much by the sons of the soil as in universities in

other places. Delhi is in no sense a educationally or commercially

backward human region, measured against the rest of our country.

Delhi or the Delhi University, regard being had to overall Indian

conditions is neither backward nor serves through the medical

colleges of its university regional demands of Delhi.

Reservation in Delhi University for Delhiites, i.e., Delhi alumni

on ground of educational or economic or regional handicaps was

refused to be sustained by this Court; however, some measure of

reservation on the ground of institutional continuity was given a

recognition guided by the consideration that until the signpost of no

admission for outsiders is removed from other universities and some

fair percentage of seats in other universities is left for open

competition the Delhi students cannot be made martyrs of the

Constitution. The conclusions drawn up by the majority in Dr. Jagdish

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Sarans case can be crystallised as under :-

1) It is difficult to denounce or renounce the merit criterion when

selection is for post-graduate or post-doctoral courses in

specialised subjects. To sympathise mawkishly with the

weaker sections by selecting sub-standard candidates, is to

punish society as a whole by denying the prospect of excellence

say in hospital service. Even the poorest, when stricken by

critical illness, needs the attention of super-skilled specialists,

not humdrum second-rates. Relaxation on merit, by overruling

equality and quality altogether, is a social risk where the stage

is post-graduate or post-doctoral;

2) So long as other universities are out of bounds for Delhi

graduates, discrimination needs to be anti-doted by some

percentage of reservation or other legitimate device;

3) There is justification for some measure of reservation for

institutional continuity in education. Parents and teachers will

usually prefer such continuity and it has its own value. But

institutional-wise reservation may become ultra vires if

recklessly resorted to;

4) Such reservation, that is, one securing institutional continuity

in education must be administered in moderation if it is to be

constitutional.

R.S. Pathak, J. recording his concurring but separate opinion

held that the issue before the Court did not raise the question of

backward classes, scheduled castes and scheduled tribes nor was

there the need for invoking the test of territorial nexus. The question

was one of institutional continuity, that is, graduates from the medical

colleges run by the Delhi university being favoured for admission to

post-graduate classes in Delhi university. His Lordship opined :-

It is not beyond reason that a student who enters

a medical college for his graduate studies and

pursues them for the requisite period of years

should prefer on graduation to continue in the

same institution for his post-graduate studies.

There is the strong argument of convenience, of

stability and familiarity with an educational

environment which in different parts of the country

is subject to varying economic and psychological

pressures. But much more than convenience is

involved. There are all the advantages of a

continuing frame of educational experience in the

same educational institution. It must be

remembered that it is not an entirely different

course of studies which is contemplated; it is a

specialised and deeper experience in what has

gone before. The student has become familiar with

the teaching techniques and standards of

scholarship, and has adjusted his responses and

reactions accordingly. The continuity of studies

ensures a higher degree of competence in the

assimilation of knowledge and experience. Not

infrequently some of the same staff of Professors

and Readers may lecture to the post-graduate

classes also. Over the undergraduate years the

teacher has come to understand the particular

needs of the student, where he excels and where

he needs an especial encouragement in the

removal of deficiencies. In my judgment, there is

good reason in an educational institution extending

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a certain degree of preference to its graduates for

admission to its post-graduate classes. The

preference is based on a reasonable classification

and bears a just relationship to the object of the

education provided in the post-graduate classes. . .

. . . . . . . . . An institutional preference of the kind

considered here does not offend the constitutional

guarantee of equality.

[Underlining by us]

The Court by its unanimous verdict struck down the reservation

to the extent of 70% plus, followed by relief to the petitioner before

the Court, but refused to lay down any alternate reservation replacing

the invalidated reservation for want of requisite material being

available on record and left the same to be formulated by a

committee of experts representing constitutional and medical

expertise.

In Municipal Corporation of Greater Bombay & Ors. Vs.

Thukral Anjali, (1989) 2 SCC 249, the impugned rule provided for

college-wise institutional preference for admission in the M.D.

courses. This court agreed with the High Court which had struck

down the rule and observed that unless there are strong reasons for

exclusion of meritorious candidates, any preference other than in

order of merit will not stand the test of Article 14 of the Constitution

of India.

In P.K. Goel & Ors. Vs. U.P. Medical Council & Ors., (1992)

3 SCC 232, a combined entrance examination for admission for

postgraduate medical courses for all the seven medical colleges was

held by the University of Lucknow. A merit list was prepared based

thereon. However, the University reserved 75% of total seats

available for postgraduate degree/diploma courses in an institution,

after excluding 25% seats to be filled by open all-India Entrance

Examination, for the institutional candidates. Institutional candidate

was defined as a student who had obtained MBBS/MDS degree of that

University/institution. This court refused to uphold the rule as it

resulted in sacrificing merit and depriving meritorious candidates of

getting a speciality of their choice.

In State of M.P. Vs. Nivedita Jain, (1981) 4 SCC 296, the

State Government completely relaxed the condition relating to the

minimum qualifying marks for scheduled caste and scheduled tribe

candidates. So was the case in Dr. Sadhna Devi & Ors. Vs. State

of U.P. & Ors., (1997) 3 SCC 90, wherein the State of U.P. had laid

down that it will not be necessary for special category candidates, i.e.

ST, SC and OBC, to obtain even the minimum qualifying marks in the

admission tests in order to gain admission to the postgraduate

medical courses. On both the occasions this court held that need for

such category candidates to take the admission test to postgraduate

medical courses was rendered an idle formality because they would

qualify for admission even though they did not secure any marks in

the test and candidates belonging to such categories were sure to get

an admission so long as their quota of seats were not filled up. It was

held that merit could not be allowed to be sacrificed altogether. In

Dr. Sadhna Devi this court expressed grave doubts if the policy of

reservation could at all be extended to postgraduate level. However,

that line of enquiry was not perused further as it did not pertain to

the case. Yet, the court made it clear that the candidates belonging

even to special categories were required to secure the minimum

qualifying marks in the admission tests in order to gain admission to

postgraduate medical courses and in the event of their failing to do so

the vacant seats should be made available to general category

candidates; else it will be a national loss.

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In Mohan Bir Singh Chawla Vs. Panjab University,

Chandigarh & Anr., (1997) 2 SCC 171, this court having reviewed

the judicial opinion declared the rule __ the higher you go, in any

discipline, lesser should be the reservation __ of whatever kind and

added in the larger interest of the nation, it is dangerous to

depreciate merit and excellence in any field.

Dr. Preeti Srivastava & Anr. Vs. State of M.P. & Ors.,

(1999) 7 SCC 120, is a landmark decision of recent times delivered by

a Constitution Bench. The principles laid down by the Constitution

Bench and so far as relevant for our purpose are culled out and briefly

stated hereunder:

(i) The spread of primary education has to be wide enough to

cover all sections of the society whether forward or backward.

A larger percentage of reservations for the backward would be

justified at this level. These are required in individual as well

as national interest;

(ii) At the stage of postgraduate education in medical specialities,

the element of public interest in having the most meritorious

students at this level of education demands selection of

students of right caliber. This supervening public interest

outweighs the social equity of providing some opportunities to

the backward who are not able to qualify on the basis of marks

obtained by them for postgraduate learning. However, the

extent of reservations and the extent of lowering the qualifying

marks, consistent with the broader public interest in having

the most competent people for specialised training, should be

left to be determined by a body of experts (such as the Medical

Council of India) - whether reservation or lower qualifying

marks, at such level have to be minimised. At the same time

there cannot be a wide disparity between the minimum

qualifying marks for reserved category candidates and the

minimum qualifying marks for general category candidates.

(iii) At the level of superspecialisation there cannot be any

reservation because any dilution of merit at this level would

adversely effect the national goal of having the best people at

the highest levels of professional and educational stream.

Majmudar, J. recorded his separate opinion partly dissenting

with the majority opinion. However, he agreed that,

i) there cannot be a wide disparity between the minimum

qualifying marks for reserved category candidates and for

general category candidates at the speciality level;

ii) there cannot be dilution of minimum qualifying marks for such

reserved category candidates up to almost a vanishing point.

What would be a reasonable extent? His Lordship held that

maximum dilution could be up to 50% of the minimum

qualifying marks prescribed for the general category candidates

and any dilution below this rock bottom would not be

permissible under Article 15(4) of the Constitution of India.

Before we leave this topic and move ahead, to be fair to the

learned counsel for the appellants, we may deal with two decisions

relied on by them. State of Tamil Nadu Vs. T. Dhilipkumar & Ors.,

1995 (5) Scale 67, is a brief decision of this court affirming a judgment

of the Madras High Court. Reservation to the extent of 60% in favour

of in-service candidates for seats in post-graduate medical courses

was struck down by the High Court directing it to keep it confined to

50%. This court left it to the appellants to appoint a highly qualified

committee to determine from year to year what, in fact, is the

percentage-wise reservation requisite for in-service candidates having

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regard to the then prevailing situation and that the percentage of 50%

was, if found appropriate, be reduced accordingly. Question of

institutional reservation was not the one posed before the Court.

Needless to say, the court was dealing with a case of two sources of

entry, though, called reservation, a situation we have already dealt

with hereinabove.

D.N. Chanchala Vs. The State of Mysore & Ors., (1971) 2

SCC 293, is a case where three universities (with medical colleges)

were set up in three different places, presumably for the purpose of

catering to the educational and academic needs of those areas. So far

as the scheme for selection adopted in the relevant rules was

concerned, this court clearly held, vide para 22, that the scheme did

not make it possible for less meritorious students obtaining admission

at the cost of the better candidates. The court noted that a preference

to one attached to one university in its own institutions for post-

graduate or technical training is not uncommon. However, the

preference dealt with by the court did not amount to reservation as is

the case before us. As a broad principle, this court recognised that the

Government which bears the financial burden of running these

institutions can lay down criteria for admissions and to decide the

sources from which admissions would be made and hastened to add,

lest its observations be misunderstood, __ provided of course, such

classification is not arbitrary and has a rational basis and a reasonable

connection with the object of the rules. The test validating

classification, we have held from the material available on record

accepting the factual findings arrived at by the High Court, is not

satisfied in the present case. Further, the classification resulting into

appropriation of seats by way of laying down sources for selection

necessitated by certain over-riding considerations, was held to he

neither excessive nor unreasonable (vide para 23).

None of the two cases really throws any light on the issues

before us and certainly none runs counter to the view we are taking.

Preamble to the Constitution of India secures, as one of its

objects, fraternity assuring the dignity of the individual and the unity

and integrity of the nation to we the people of India. Reservation

unless protected by the constitution itself, as given to us by the

founding fathers and as adopted by the people of India, is sub-version

of fraternity, unity and integrity and dignity of the individual. While

dealing with Directive Principles of State Policy, Article 46 is taken

note of often by overlooking Articles 41 and 47. Article 41 obliges the

State inter alia to make effective provision for securing the right to

work and right to education. Any reservation in favour of one, to the

extent of reservation, is an inroad on the right of others to work and

to learn. Article 47 recognises the improvement of public health as

one of the primary duties of the State. Public health can be improved

by having the best of doctors, specialists and super specialists.

Under-graduate level is a primary or basic level of education in

medical sciences wherein reservation can be understood as the

fulfilment of societal obligation of the State towards the weaker

segments of the society. Beyond this, a reservation is a reversion or

diversion from the performance of primary duty of the State.

Permissible reservation at the lowest or primary rung is a step in the

direction of assimilating the lesser fortunates in mainstream of society

by bringing them to the level of others which they cannot achieve

unless protectively pushed. Once that is done the protection needs to

be withdrawn in the own interest of protectees so that they develop

strength and feel confident of stepping on higher rungs on their own

legs shedding the crutches. Pushing the protection of reservation

beyond the primary level betrays bigwigs desire to keep the crippled

crippled for ever. Rabindra Nath Tagores vision of a free India

cannot be complete unless knowledge is free and tireless striving

stretches its arms towards perfection. Almost a quarter century after

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the people of India have given the Constitution unto themselves, a

chapter on fundamental duties came to be incorporated in the

Constitution. Fundamental duties, as defined in Article 51A, are not

made enforceable by a writ of court just as the fundamental rights

are, but it cannot be lost sight of that duties in Part IVA - Article 51A

are prefixed by the same word fundamental which was prefixed by

the founding fathers of the Constitution to rights in Part III. Every

citizen of India is fundamentally obligated to develop the scientific

temper and humanism. He is fundamentally duty bound to strive

towards excellence in all spheres of individual and collective activity

so that the nation constantly rises to higher levels of endeavour and

achievements. State is, all the citizens placed together and hence

though Article 51A does not expressly cast any fundamental duty on

the State, the fact remains that the duty of every citizen of India is

the collective duty of the State. Any reservation, apart from being

sustainable on the constitutional anvil, must also be reasonable to be

permissible. In assessing the reasonability one of the factors to be

taken into consideration would be __ whether the character and

quantum of reservation would stall or accelerate achieving the

ultimate goal of excellence enabling the nation constantly rising to

higher levels. In the era of globalisation, where the nation as a whole

has to compete with other nations of the world so as to survive,

excellence cannot be given an unreasonable go by and certainly not

compromised in its entirety. Fundamental duties, though not

enforceable by a writ of the court, yet provide a valuable guide and

aid to interpretation of constitutional and legal issues. In case of

doubt or choice, peoples wish as manifested through Article 51A, can

serve as a guide not only for resolving the issue but also for

constructing or moulding the relief to be given by the courts.

Constitutional enactment of fundamental duties, if it has to have any

meaning, must be used by courts as a tool to tab, even a taboo, on

State action drifting away from constitutional values.

Conclusion

The upshot of the above discussion is that institutional

reservation is not supported by the Constitution or constitutional

principles. A certain degree of preference for students of the same

institution intending to prosecute further studies therein is permissible

on grounds of convenience, suitability and familiarity with an

educational environment. Such preference has to be reasonable and

not excessive. The preference has to be prescribed without making an

excessive or substantial departure from the rule of merit and equality.

It has to be kept within limits. Minimum standards cannot be so

diluted as to become practically non-existent. Such marginal

institutional preference is tolerable at post-graduation level but is

rendered intolerable at still higher levels such as that of super-

speciality. In the case of institutions of national significance such as

AIIMS additional considerations against promoting reservation or

preference of any kind destructive of merit become relevant. One can

understand a reasonable reservation or preference being provided for

at the initial stage of medical education, i.e., under-graduate level

while seeking entry into the institute. It cannot be forgotten that the

medical graduates of AIIMS are not sons of the soil. They are drawn

from all over the country. They have no moorings in Delhi. They are

neither backward nor weaker sections of the society by any standards

- social, economical, regional or physical. They were chosen for entry

into the Institute because of their having displayed and demonstrated

excellence at all-India level competition where thousands participate

but only a mere 40 or so are chosen. Their achieving an all-India

merit and entry in the premier institution of national importance

should not bring in a brooding sense of complacence in them. They

have to continue to strive for achieving still higher scales of excellence.

Else there would be no justification for their continuance in a premier

institution like AIIMS. In AIIMS where the best of facilities are

available for learning with best of teachers, best of medical services,

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sophistication, research facilities and infrastructure, the best entrants

selected from the length and breadth of the country must come out as

best of all-India graduates. We fail to understand why those who were

assessed to be best in the country before entering the portals of the

Institute fall down to such low levels as having perceptibly ceased to

be best, not remaining even better, within a period of a few years

spent in the Institute. They trail behind even such candidates as fall in

constitutionally reserved categories and yet steal a march over them in

claiming creamy disciplines. The only reason which logically follows

from the material available on record is that being assured of

allotment of post-graduation seats in the same institution, the zeal for

preserving excellence is lost. The students lose craving for learning.

Those who impart instructions also feel that their non-seriousness

would not make any difference for their taughts. If that is so, there is

no reason why at the point of clearing graduation and seeking entry in

post-graduation courses of study they should not give way for those

who deserve better, and much better, than them. AIIMS holds and

conducts a common entrance examination for post-graduation wherein

graduates of AIIMS and graduates from all over the country participate

and are tested by common standards. The AIIMS students trail in the

race and yet are declared winners, thanks to the ingenious reservation

in their favour. One who justifies reservation must place on record

adequate material enough, to satisfy an objective mind judicially

trained, to sustain the reservation, its extent and qualifying

parameters. In the case at hand no such material has been placed on

record either by the institute or by the AIIMS Students Union. The

facts found by Delhi High Court, well articulated by the learned Chief

Justice speaking for the Division Bench of the High Court of Delhi,

visibly demonstrate the arbitrariness and hence unsustainability of

such a reservation. It was an outcome of agitation-generated-

pressure depriving application of mind, reason and objectivity of those

who took the decision. No material has been placed on record to show

that Institute graduates, if asked to face all-India competition while

seeking PG seats, would get none or face feeble opportunities because

of the policies of other universities. The way merit has been made a

martyr by institutional reservation policy of AIIMS, the high hopes on

which rests the foundation of AIIMS are belied. No sound and sensible

mind can accept scorers of 15-20% being declared as passed, crossing

over the queue and arraigning themselves above scorers of 60-70%

and that too to sit in a course where they will be declared qualified to

fight with dreaded and complicated threats to human life. Will a less

efficient post graduate or specialist doctor be a boon to society? Is the

human life so cheap as to be entrusted to mediocres when meritorious

are available? If the answer is yes, we are cutting at the roots of

nations health and depriving right to equality of its meaning. We have

no hesitation in holding, and thereby agreeing with the Division Bench

of High Court, that reserving 33% seats for institutional candidates

was in effect 100% reservation for subjects. Coupled with 50%

reservation in allocation of specialities not exceeding over-all 33%

reservation integrated with 65 percentile__ a complex method, the

actual working whereof even the learned senior counsel for the parties

frankly confessed their inability in demonstrating before us at the time

of hearing __is a conceited gimmick and accentuated politics of

pampering students, weak in merit but mighty in strength. Such a

reservation based on institutional continuity in the absence of any

relevant evidence in justification thereof is unconstitutional and

violative of Article 14 of the Constitution and has therefore to be

struck down. The impugned reservation, obnoxious to merit, fails to

satisfy the twin test under Article 14. Having taken a common

entrance test, there is no intelligible differentia which distinguishes the

institutional candidates from others; and there is no nexus sought to

be achieved with the objects of AIIMS by such reservation. Can the

court sustain and uphold such reservation? Justice is the earnest and

constant will to render every man his due. The precepts of the law are

these: to live honorably, to injure no other man, to render to every

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man his due __ said Justinian. Giving a man his due, one of the basics

of justice, finds reflected in right to equality. Mediocracy over

meritocracy cuts at the roots of justice and hurts right to equality.

Protective push or prop, by way of reservation or classification must

withstand the test of Article 14. Any over-generous approach to a

section of the beneficiaries if it has the effect of destroying anothers

right to education, more so, by pushing a mediocre over a meritorious

belies the hope of our Founding Fathers on which they structured the

great document of Constitution and so must fall to the ground. To

deprive a man of merit of his due, even marginally, no rule shall

sustain except by the aid of Constitution; one such situation being

when deprivation itself achieves equality subject to satisfying tests of

reason, reasonability and rational nexus with the object underlying

deprivation.

Suggestion of Academic Committee of AIIMS

As already noted some accommodation to AIIMS graduates

within reasonable bounds and without entirely sacrificing the merit is

permissible and that too for the present. We say so because no

material has been placed on record before us to justify if AIIMS

graduates are placed in such a disadvantageous position that if left to

compete against all-India P.G. seats in the country, carved out

pursuant to the decision of this Court in Dr. Pradeep Jains case,

they would be in a lurch. Rightly the High Court left the issue to be

resolved by a well-thought of scheme providing for some institutional

preference being framed by a committee of experts. We too, at one

stage, after hearing learned counsel for the parties, felt that we shall

have to stop short only at invalidating the rule because the facts are

imperfect and Judges should not rush in where specialists fear to

tread - to borrow the expression from Dr. Jagdish Sarans case. On

22.2.2001 the learned Additional Solicitor General appearing for the

Institute informed us that certain suggestions had come for

streamlining the issue involved in these appeals relating to quota for

internal students. He submitted that it would be appropriate for the

Academic Committee of AIIMS to apply its mind to those suggestions

in the light of the law settled by this Court and to consider whether

any constitutionally relevant criteria could be formulated for the future

in this behalf. We deferred the judgment taking on record the

submission and suggestion so made at the Bar. As the Academic

Committee could not meet within three weeks __ the time as originally

appointed, the judgment was further deferred. Then an affidavit dated

11.4.2001 sworn in by the Director of AIIMS was filed stating that the

Academic Committee of the Institute met on three different dates to

consider the issue in all its aspects, and having considered alternatives

which would ensure fairness to all, the prevailing situation through the

country, the judgment of Delhi High Court under appeal and the

proceedings in this Court __ as stated in the affidavit, made a few

recommendations. The special features taken into consideration by

the Academic Committee included the following:-

a) integrated teaching in both __ in the pre as well as the para

clinicals,

b) problem based learning included in the teaching schedule.

c) Small group studies as for example the case studies included in

the teaching schedule.

d) The undergraduate is supposed to work in two scientific study

projects during his or her under graduation.

e) The syllabus which gives a cutting edge to the AIIMS graduates

as it covers the entire spectrum of current medicine together

with that needed to work at the basic level. This is as opposed

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to the pattern being followed elsewhere which often covers only

the bare minimum recommended by the Medical Council of

India.

The Academic Committee felt that a degree of assurance of continuing

post-graduate education had to be offered to AIIMS students for the

following reasons :-

a) to place them on par with other students who had the benefit of

state and institutional preference as AIIMS students lost both

domicile and eligibility in their states of origin upon admission to

the institute;

b) to ensure that the best students at the undergraduate level

continued to come to AIIMS after national competition as

otherwise the absence of protection would make the best opt for

courses where institutional state continuity was assured;

c) In the interest of the institute developing patterns of education

in all disciplines of medicine since some specialities were

available only in the institute and not elsewhere and it was

desirable that some candidates who had been observed right

from inception as doctors be trained even at the post-graduate

stage;

d) Since a comparison based solely on marks in one-off written

examination would not accurately reflect the already assessed

quality of AIIMS undergraduates.

The Academic Committee has been bold enough to admit that

some anomalies had crept in to the selection procedure due to the

quota being implemented without insistence on any minimum

qualifying marks and therefore the committee proposed to

immediately add minimum qualifying marks as pre-requisites to

eligibility for the AIIMS quota which was also to be reduced from 1/3rd

to 1/4th of the available seats. The committee felt that the quota be

implemented disciplinewise in accordance with the pattern all over

India and also to obviate any challenges on the basis of one speciality

being more in demand than the other in any particular year. The

committee therefore decided :-

1) to recommend a 25% quota disciplinewise out of the total post-

graduate seats for AIIMS under-graduates;

2) a uniform minimum cut-off of 50% marks in the competitive

entrance test as a condition of eligibility for all candidates;

3) 75% compulsory attendance during the course shall be made

mandatory for AIIMS students.

We regret our inability to endorse the abovesaid decision of the

Academic Committee in its entirety and for all times. What we had

expected was formulation of any constitutionally relevant criteria but

what has been handed down to us is more of a justification for

institutional reservation. The grounds of justification set out in the

affidavit were, generally speaking, not taken up in the pleadings either

before the High Court or before this Court. The justifications pleaded

are not supported by any factual data so as to enable relationship of

relevancy being judicially spelled out between facts and reasons. We

may quickly test the reasons assigned. For example, as to reason (a)

it is difficult to subscribe to the view that a student coming from a

place other than Delhi would lose his domicile status merely because

he has come to study in an Institute at Delhi. So also we cannot

subscribe to reason (b) that meritorious students would come to

Institute foregoing admissions in other better institutions only because

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they are assured of PG seats. And if that is the impression that they

would assuredly be getting a PG seat inspite of their performance

stooping down too low then that impression must vanish and earlier

the better it would be. As to reason (c) how much time would it take

for even a fresh entrant in PG to assimilate himself with Institutes

developing pattern of education once he has dedicated himself to his

studies and learning? Accepting the content of reason (d) would be

depriving the entrance examination of its efficacy to make assessment.

Without dwelling further, for we are not joining any issue with the

Academic Committee, which is entitled to our esteem for its expertise,

we record our disagreement with the Academic Committee. Yet for

the present, and until a better alternative is found out, we do not

deem it proper to strike down the proposal of the Academic Committee

of AIIMS as incorporated in the affidavit of the Director dated

11.4.2001 in its entirety and we are inclined to sustain the same with

some modifications.

The End Result :

The following directions in our opinion will meet the ends of

justice :-

1) The institutional reservation for AIIMS candidates is declared

ultra vires the Constitution and, hence, is struck down.

2) By way of institutional preference the institutional candidates,

i.e., those who have graduated from the institute shall be

preferred for admission against 25% seats available to open

category candidates and not 25% seats disciplinewise out of the

total post-graduate seats for AIIMS undergraduates as

suggested by the Academic Committee.

3) An uniform minimum cut-off of 50% marks in the competitive

entrance test as a condition of eligibility for all candidates may

be adopted subject to further rider (i) that the last student to

qualify for admission as AIIMS graduate cannot be one who has

secured marks at the common entrance P.G. test less than the

one secured by any other candidate belonging to a reserved

category enjoying constitutional protection such as SC, ST etc.,

and (ii) that the margin of difference between the qualifying

marks for Institutes candidate shall not be too wide with the

one for general category candidate.

4) Any seat left vacant out of the preferential seats for AIIMS

graduates consequent upon the abovesaid directions, shall be

diverted to and made available for open general category

candidates.

5) The preference for institute candidates to the extent of 25% as

abovesaid shall remain confined to admission in P.G. course of

study. There shall be no further reservation in the matter of

allotment of seats disciplinewise which allotment shall be made

solely on the basis of merit out of a common list drawn up

pursuant to the result of common entrance examination placing

the selected candidates strictly as per their ranking.

So we drop the curtain on the controversy for the present.

Before parting it is necessary to place on record certain observations

by way of clarifications lest our judgment should be misunderstood or

misapplied. Our judgment shall not come in the way of the Academic

Committee or any other competent body of experts devising a better

alternative scheme of admissions to the post-graduate level of study in

the Institute which may revise and further scale down the reservation

or preference by giving more weight to merit and excellence. We have

not touched and not dealt with other reservations made by the

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Institute and therefore our judgment is not an implied approval of

other reservations as to which we have grave doubts if they would be

sustainable if challenged and we do not say any more as the present

case does not provide an occasion for testing the validity of other

reservations. Further, this judgment of ours shall not have the effect

of invalidating such admissions as have already been given. The

directions made hereinabove shall operate for future, i.e. today

onwards. The appeals are disposed of in terms of the directions made

hereinabove. No order as to the costs.

. . . . . . . . . . . . . . . . . .CJI.

. . . . . . . . . . . . . . . . . . . .J.

( R.C. Lahoti )

. . . . . . . . . . . . . . . . . . . .J.

( Shivaraj V. Patil )

August 24, 2001.