REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2009

(Arising out of S.L.P. (C) No. 4590 of 2008)

Dr. Gulshan Prakash & Ors. .... Appellant(s)

Versus

State of Haryana & Ors. .... Respondent(s)

WITH

WRIT PETITION (C) No. 69 OF 2009

J U D G M E N T

P. Sathasivam, J.

1)The petitioners in S.L.P.(C) No. 4590 of 2008 and

Writ Petition (C) No. 69 of 2009 are one and the same.

Leave granted in the special leave petition.

2)Challenge in this appeal is to the judgment dated

05.02.2008 of the High Court of Punjab & Haryana at

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Chandigarh, dismissing the Civil Writ Petition No. 1431 of

2008, filed by the appellants herein for quashing of the

prospectus for the MD/MS/PG Diploma and MDS Courses

issued by Maharshi Dayanand University, Rohtak,

Haryana for Academic Session 2007-2008 to the extent

that it does not provide any reservation of seats for

Scheduled Caste/Scheduled Tribe candidates.

3)Challenge in Writ Petition (C) No. 69 of 2009, filed

under Art. 32 of the Constitution of India, relates to the

prospectus issued by the aforesaid University for the same

courses for Academic Session 2009-2010.

4) The brief facts leading to the filing of these matters are

as under:

Vide Notification dated 12.11.2007, State of Haryana

instructed Maharshi Dayanand University, (‘MDU’ in

short) Rohtak to conduct the entrance examination for

admission in the MD/MS/PG Diploma and MDS Courses

in Government Medical and Dental Colleges in the State of

Haryana for the session 2008-2009 and declare results.

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By the same notification, the State of Haryana also

instructed Pt. B.D. Sharma PGIMS, Rohtak to conduct the

counseling and to finalize the admission in the said

courses. In pursuance of the said notification, MDU,

Rohtak published a prospectus for holding entrance

examination for the MD/MS/PG Diploma and MDS

Courses in Government Medical and Dental Colleges in

the State of Haryana for the year 2008-2009. On

15.12.2007, the appellants made a representation to the

Commissioner and Health Secretary, Ministry of Health

and Medical Education, Government of Haryana,

Panchkula for implementation of SC/ST reservation in

Post-Graduate Courses (MD/MS/MDS/Diploma) PGIMS

in accordance with the guidelines issued by the State

Government on 19.03.1999. Since there was no response,

the appellants preferred writ petition before the High

Court for quashing of the prospectus which was

dismissed. Hence, the appellants have preferred this

appeal by way of special leave.

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5)According to the appellants, on 07.08.2000, MDU

published the prospectus for the

MBBS/BDS/BAMS/BHMS Common Entrance

Examination for admission to Medical/

Dental/Ayurvedic/Homeopathic Colleges/Institutions in

Haryana notifying the seats for admission to various

categories providing 20% reservation for the members of

Scheduled Castes. On 17.09.2005, all the Institutions

including All-India Institute of Medical Sciences provided

reservation in the Post-Graduate courses for the members

of Scheduled Castes and Scheduled Tribes. The

Government Medical College, Patiala, Amritsar and

Faridkot also provided reservation in Post-Graduate

Courses for the Academic Session, 2007. The University

of Delhi is also providing reservation to the members of

the Scheduled Castes and Scheduled Tribes. In addition

to the same, counsel for the appellants submitted that

some States have also provided reservation in Post-

Graduate Courses. On the other hand, learned counsel

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for the respondents submitted that the State of Haryana

has already provided reservation at the graduate level

courses i.e. MBBS/BDS/BAMS/BHMS etc. and there is

no reservation in respect of Post-Graduate Courses and

that is the reason the prospectus issued for Post-Graduate

Courses does not contain any clause for reservation. They

also contended that Article 15(4) is only an enabling

provision and the State of Haryana, taking note of various

aspects, decided not to provide reservation for Scheduled

Caste, Scheduled Tribe and Other Backward Class

candidates in Post-Graduate Courses. They also pointed

out that there cannot be any mandamus compelling the

State to provide reservation for a particular class of

persons.

6) We have heard Dr. Krishan Singh Chauhan, learned

counsel for the appellants and Mr. Nidhesh Gupta,

learned senior counsel for the respondents and perused

all the relevant materials and considered rival contentions.

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7) Article 15 mandates that the State shall not

discriminate against any citizen on the grounds only of

religion, race, caste, sex, place of birth or any of them.

Sub-clause (4) in both Articles 15 and 16 is only an

enabling provision for the State Government to bring

forward a legislation or pass an executive order for the

benefit of socially and educationally Backward Classes of

citizens and for the Scheduled Castes and Scheduled

Tribes. Article 15(4) reads as follows:-

“4. Nothing in this Article or in clause (2) of Article 29

shall prevent the State from making any special provision

for the advancement of any socially and educationally

backward classes of citizens or for the Scheduled Castes

and the Scheduled Tribes.”

8) Learned counsel for the appellants, in support of his

claim, relied on a seven-Judge Bench decision of this

Court reported in State of Kerala and Another vs. N.M.

Thomas and Others, (1976) 2 SCC 310. The issue

therein relates to constitutionality of Rule 13AA of the

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Kerala State and Subordinate Services Rules, 1958

granting exemption to members of Scheduled Castes and

Scheduled Tribes for a specified period from special and

departmental tests in the matter of promotion. By

majority, their Lordships have upheld the validity of Rule

13AA of the Kerala State and Subordinate Services Rules,

1958, and two consequential orders and set aside the

judgment of the High Court. In the said decision, the

Court nowhere considered the effect and implication of

Article 15(4), particularly, whether it mandates the State

to provide reservation in Post-Graduate Courses or is only

an enabling provision.

9) On the other hand, the consistent view of this Court is

that Article 15(4) is only an enabling provision and it is for

the respective States either to enact a legislation or issue

an executive instruction providing reservation in Post-

Graduate Courses. In Indra Sawhney and Others vs.

Union of India and Others, 1992 Supp (3) SCC 217,

which is a nine-Judge Bench judgment of this Court,

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while considering Articles 16(4) & (1), 15(4), 14, 32, 340

and various other provisions, Jeevan Reddy, J. speaking

for the majority held:

“744. The aspect next to be considered is whether clause

(4) is exhaustive of the very concept of reservations? In

other words, the question is whether any reservations

can be provided outside clause (4) i.e., under clause (1) of

Article 16. There are two views on this aspect. On a fuller

consideration of the matter, we are of the opinion that

clause (4) is not, and cannot be held to be, exhaustive of

the concept of reservations; it is exhaustive of

reservations in favour of backward classes alone. Merely

because, one form of classification is stated as a specific

clause, it does not follow that the very concept and power

of classification implicit in clause (1) is exhausted

thereby. To say so would not be correct in principle. But,

at the same time, one thing is clear. It is in very

exceptional situations, — and not for all and sundry

reasons — that any further reservations, of whatever

kind, should be provided under clause (1). In such cases,

the State has to satisfy, if called upon, that making such

a provision was necessary (in public interest) to redress a

specific situation. The very presence of clause (4) should

act as a damper upon the propensity to create further

classes deserving special treatment. The reason for

saying so is very simple. If reservations are made both

under clause (4) as well as under clause (1), the

vacancies available for free competition as well as

reserved categories would be a correspondingly whittled

down and that is not a reasonable thing to do.”

10) In K. Duraisamy and Another vs. State of T.N. and

Others, (2001) 2 SCC 538, a three-Judge Bench, while

dealing with the reservation at the Post-Graduate level

and super-speciality level, observed as follows:-

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“8. That the Government possesses the right and

authority to decide from what sources the admissions in

educational institutions or to particular disciplines and

courses therein have to be made and that too in what

proportion, is well established and by now a proposition

well settled, too. It has been the consistent and

authoritatively-settled view of this Court that at the

super-speciality level, in particular, and even at the

postgraduate level reservations of the kind known as

“protective discrimination” in favour of those considered

to be backward should be avoided as being not

permissible. Reservation, even if it be claimed to be so in

this case, for and in favour of the in-service candidates,

cannot be equated or treated on par with communal

reservations envisaged under Articles 15(4) or 16(4) and

extended the special mechanics of their implementation

to ensure such reservations to be the minimum by not

counting those selected in open competition on the basis

of their own merit as against the quota reserved on

communal considerations.”

11) In AIIMS Student’s Union vs. AIIMS and Others,

(2002) 1 SCC 428, while considering the similar issue, it

was held:-

“44. 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

postgraduate 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

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higher the level of the speciality the lesser the role of

reservation.”

Again it was held that:-

“…..Permissible reservation at the lowest or primary rung

is a step in the direction of assimilating the lesser

fortunates in the 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 the bigwigs’ desire to keep the

crippled crippled for ever……. 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…...”

12) In Union of India vs. R. Rajeshwaran and Another ,

(2003) 9 SCC 294, direction was sought for to apply the

rule of reservation to the Scheduled Castes and Scheduled

Tribes in respect of those seats which are set apart for All-

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India pool in MBBS/BDS list. In the present context, the

following conclusion is relevant:-

“9. In Ajit Singh (II) v. State of Punjab this Court held that

Article 16(4) of the Constitution confers a discretion and

does not create any constitutional duty and obligation.

Language of Article 15(4) is identical and the view in

Comptroller and Auditor General of India, Gian Prakash v.

K.S. Jagannathan

and Superintending Engineer, Public

Health v. Kuldeep Singh that a mandamus can be issued

either to provide for reservation or for relaxation is not

correct and runs counter to judgments of earlier

Constitution Benches and, therefore, these two

judgments cannot be held to be laying down the correct

law. In these circumstances, neither the respondent in

the present case could have sought for a direction nor the

High Court could have granted the same.

10. Hence, we allow the writ appeal transferred to this

Court and set aside order made in the writ petition. The

appeal also shall stand disposed of accordingly.”

13) The principle behind Article 15(4) is that a

preferential treatment can be given validly when the

socially and educationally backward classes need it. This

article enables the State Government to make provisions

for upliftment of Scheduled Castes and Scheduled Tribes

including reservation of seats for admission to educational

institutions. It was also held that Article 15(4) is not an

exception but only makes a special application of the

principle of reasonable classification. Article 15(4) does

not make any mandatory provision for reservation and the

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power to make reservation under Article 15(4) is

discretionary and no writ can be issued to effect

reservation. Such special provision may be made not only

by the Legislature but also by the Executive.

14) Learned counsel for the appellants relying on the

Constitution Bench decision of this Court in Dr. Preeti

Srivastava and Another vs. State of M.P. and Others,

(1999) 7 SCC 120, submitted that when it is permissible

to prescribe a lower minimum percentage of qualifying

marks for the reserved category candidates, as compared

to the general category candidates, it is incumbent on the

part of the State Government to prescribe certain

percentage for SC/ST candidates even for the Post-

Graduate Courses. On going through the decision, we are

unable to accept the said contention. In para 10 of the

judgment, this Court has posed the following question for

consideration:-

“We have therefore, to consider whether for

admission to the postgraduate medical courses, it is

permissible to prescribe a lower minimum

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percentage of qualifying marks for the reserved

category candidates as compared to the general

category candidates. We do not propose to examine

whether reservations are permissible at the

postgraduate level in Medicine. That issue was not

debated before us, and we express no opinion on it.

We need to examine only whether any special

provision in the form of lower qualifying marks in

PGMEE can be prescribed for the reserved category”

After discussing relevant aspects and earlier decisions this

Court concluded:-

“In the premises, we agree with the reasoning and

conclusion in Dr Sadhna Devi v. State of U.P. and we

overrule the reasoning and conclusions in Ajay

Kumar Singh v. State of Bihar and Post Graduate

Institute of Medical Education & Research v. K.L.

Narasimhan. To conclude:

1. We have not examined the question whether

reservations are permissible at the postgraduate

level of medical education.

2. A common entrance examination envisaged

under the regulations framed by the Medical

Council of India for postgraduate medical education

requires fixing of minimum qualifying marks for

passing the examination since it is not a mere

screening test.

3. Whether lower minimum qualifying marks for the

reserved category candidates can be prescribed at

the postgraduate level of medical education is a

question which must be decided by the Medical

Council of India since it affects the standards of

postgraduate medical education. Even if minimum

qualifying marks can be lowered for the reserved

category candidates, there cannot be a wide

disparity between the minimum qualifying marks

for the reserved category candidates and the

minimum qualifying marks for the general category

candidates at this level. The percentage of 20% for

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the reserved category and 45% for the general

category is not permissible under Article 15(4), the

same being unreasonable at the postgraduate level

and contrary to the public interest.

4. At the level of admission to the superspeciality

courses, no special provisions are permissible, they

being contrary to the national interest. Merit alone

can be the basis of selection.”

It is clear that first of all in Preeti Srivastava (supra), this

Court did not examine whether reservation is permissible

at the Post-Graduate level in Medicine. It is also clear that

the Court has dealt with only the question as to the

prescribing lower minimum percentage of qualifying

marks for the reserved category candidates at the Post-

Graduate Medical Courses and ultimately it was

concluded that the same is permissible, however, insofar

as medical education is concerned, it must be decided by

the Medical Council of India. It is relevant to mention that

pursuant to the said decision the Medical Council of India

(‘MCI’ in short) has prescribed minimum qualifying marks

as 50 per cent for the ‘general category candidates’ and 40

per cent for the ‘reserved category candidates’. In such

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circumstances, the argument based on Preeti Srivastava

(supra), by the learned counsel for the appellants is liable

to be rejected.

15) It is also useful to refer the judgment in State of

Punjab vs. Dayanand Medical College and Hospital

and Others, (2001) 8 SCC 664, wherein similar

contention as projected before us by the counsel for the

appellants was raised. In para 10 of the judgment in

Preeti Srivastava (supra), it was clarified that this Court

was only paying attention to the question of fixing lower

minimum qualifying marks for reserved category

candidates. In the same decision, it was stated that such

question must be decided by the Medical Council of India,

since it affects the standard of Post-graduate medical

education. In State of T.N. and Another vs. S.V.

Bratheep (Minor) and Others, (2004) 4 SCC 513, this

Court reiterated the same reasoning as stated in State of

Punjab (supra).

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16) In Ajit Singh and Others (II) vs. State of Punjab

and Others, (1999) 7 SCC 209, Constitution Bench of

this Court in paragraph 28 has held that Article 16(4) is

only an enabling provision which reads as under:

“On the face of it, the above language in each of

Articles 16(4) and 16(4-A) is in the nature of an

enabling provision and it has been so held in

judgments rendered by Constitution Benches and in

other cases right from 1963.”

17) Learned counsel for the appellants next contended

that, inasmuch as even in All-India Entrance Examination

for Post-Graduate Courses, the Government of India itself

has made a provision for reservation for SC/ST

candidates, the State of Haryana is bound to follow the

same and issue appropriate orders/directions providing

reservation in the Post-Graduate Courses. He further

contended that the prospectus de hors any provision for

reservation is bad and is liable to be quashed. In our

view, this contention is also liable to be rejected. It is true

that Government of India itself has made a provision for

reservation of SC/ST categories. This was a decision by

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the Government of India and it is applicable in respect of

All-India Entrance Examination for MD/MS/PG Diploma

and MDS Courses, and reservation for SC/ST candidates

in All-India quota for PG seats. However, the same cannot

automatically be applied in other selections where State

Governments have power to regulate. In fact, the

Government of Haryana, in the counter affidavit before the

High Court, explained their position that according to

them, the matter regarding reservation of seats in the PG

Courses has been considered by the State Government

from time to time and it has been decided that keeping in

view the recommendations of the Medical Council of India

and precedents in the other States, reservation of SC/ST

in PG Courses is neither feasible nor warranted, as there

is already a reservation of 50 per cent of the total seats in

MD/MS/PG Diploma and MDS Course in the institutions

of the State of Haryana on all-India basis entrance

examination, being conducted by AIIMS, New Delhi, and

that the appellants had already availed the benefit of

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reservation of seats in their qualifying examination of

MBBS/BDS. They further clarified that only the State

Government is the Competent Authority to decide the

reservation in the State. The State Government did not

prescribe any reservation for SC/ST and backward

classes, due to which it was not included in the

prospectus. They also clarified that the petitioners before

the High Court were on the wrong impression that the

Government of Haryana has already taken a decision to

make a reservation in admission to MD/MS/PG Diploma

and MDS Courses for SC/ST category. It was clarified

that the Government of Haryana has never granted the

benefit of reservation to SC/ST category in admission to

MD/MS/PG Diploma and MDS Course. The Government

of Haryana, for the first time, considered and decided on

05.04.1988 that there will be no reservation in admission

to PG/Diploma courses. Again, in their letter dated

01.01.1991, reiterated that Government of Haryana is not

in favour of reservation for SC/ST categories in

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PG/Degree/Diploma Courses. Again, by the letter dated

26.04.2002 reiterated that there will be no reservation for

SC/ST candidates at Post-Graduate level admission in

PGIMS, Rohtak. It is pointed out that since Government

of Haryana has taken a conscious decision of not to make

reservation for SC/ST categories in admission at the Post-

Graduate level, such a decision of the Government suffers

no infirmity. The other materials placed by the State

shows that before taking such a decision, they considered

the recommendations of the Medical Council of India and

precedents/decisions in other States and concluded that

the reservation for SC/ST categories in Post-Graduate

Degree and Diploma Courses is not feasible in the State.

Though, even at the Post-Graduate level, reservation for

SC/ST/Backward Community is permissible in view of the

specific decision by the State of Haryana not to have

reservation for Scheduled Castes and Scheduled Tribes at

the Post-Graduate level, there cannot be any mandamus

by this Court as claimed by the appellants. After all,

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medical education is an important issue which should not

have any mandatory condition of this nature which may

give rise to a situation against public interest if so

interpreted by the State Government as State Government

is in a better position to determine the situation and

requirement of that particular State, as mandated by the

Constitution.

18) Finally, learned counsel for the appellants, in more

than one occasion, relied on an order dated 31.01.2007 of

this Court in Writ Petition (C) No. 138 of 2006, Abhay

Nath and Others vs. University of Delhi and Others.

The operative part of the order is as follows:-

“The Additional Solicitor General pointed out that in

the All India quota of 50% seats, if 22.5% are

reserved for SC/ST students, it would be difficult for

the State to give the entire percentage to reservation

out of the 50% seats left for them to be filled up. It

is equally difficult for the DGHS to have entire

22.5% reservation out of the 50% of the seats

allotted to be admitted in the All India Entrance

Examination. Therefore, it is suggested that the

Union of India has decided to provide 22.5%

reservation for SC/ST candidates in All India Quota

from the academic year 2007-2008 onwards. The

Union of India seeks clarification of the order

passed in Budhi Prakash Sharma vs. Union of India

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passed on 28.02.2005, to the effect that 50% seats

for All India Quota shall exclude the reservation.

We review that order and make it clear that the 50%

of the seats to be filled up by All India Entrance

Examination shall include the reservation to be

provided for SC/ST students. To that extent the

order passed on 28.02.2005 is clarified.”

The above order makes it clear that the directions of this

Court are applicable to admission on All-India basis

whereas the same have no bearing on the admissions

meant for State quota. Inasmuch as the Government of

Haryana has not prescribed any reservation for the Post-

Graduate Courses, neither the University nor any other

authority be blamed for approving and publishing the

prospectus which does not contain reservation for Post-

Graduate Courses. The clarificatory order of this Court in

Abhay Nath (supra), is applicable for the Institutes

managed/run by the Central Government and unless the

State Government takes any decision for granting

reservation in MD/MS/PG Diploma and MDS Courses, it

cannot be made applicable. As the State Government is

competent to make the reservation to a particular class or

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category, until it is decided by the State, as being a Policy

matter, there cannot be any direction to provide

reservation at the PG level. The State of Haryana has

explained that reservation in under-Graduate Medical

Courses is being provided strictly as per their policy. The

Post-Graduate Degree/Diploma in medical education is

governed by Medical Council. Even, the Medical Council

of India has not followed strict adherence to the rule of

reservation policy in admission for SC/ST category at the

Post-Graduate level.

19)As stated earlier, Article 15(4) is an enabling

provision and the State Government is the best judge to

grant reservation for SC/ST/Backward Class categories at

Post-Graduate level in admission and the decision of the

State of Haryana not to make any provision for reservation

at the Post-Graduate level suffers no infirmity. In our

view, every State can take its own decision with regard to

reservation depending on various factors. Since the

Government of Haryana has decided to grant reservation

22

for SC/ST categories/Backward Class candidates in

admission at MBBS level i.e. under graduate level, then it

does not mean that it is bound to grant reservation at the

Post-Graduate level also. As stated earlier, the State

Government, in more than one communication, has

conveyed its decision that it is not in favour of reservation

for SC/ST/Backward Classes at Post-Graduate level. In

such circumstances, Court cannot issue mandamus

against their decision and their prospectus also cannot be

faulted with for not providing reservation in Post-Graduate

Courses. However, we make it clear that irrespective of

above conclusion, State of Haryana is free to reconsider its

earlier decision, if they so desire, and circumstances

warrant in the future years.

20)In the result, the Civil Appeal as well as the Writ

Petition fail and the same are dismissed accordingly with

no order as to costs.

.….…….…………………… CJI.

(K.G. BALAKRISHNAN)

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...…………………………………J.

(P. SATHASIVAM)

...…………………………………J.

(J.M. PANCHAL)

NEW DELHI;

DECEMBER 2, 2009.

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