Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4500 of 2002

FACULTY ASSOCIATION OF AIIMS … APPELLANT

VS.

UNION OF INDIA & ORS. …

RESPONDENTS

WITH

CIVIL APPEAL NO. 5119 OF 2002

J U D G M E N T

ALTAMAS KABIR, CJI.

1. When Special Leave Petition (Civil) No. 2106 of

2002, filed by the Faculty Association of AIIMS, was

taken up for consideration, notice thereupon was issued

by a Bench of Two-Judges and it was stipulated that any

appointment to be made, after the order was passed in

accordance with the reservation policy, would only be

tentative in nature until further orders. When the

Appeal was taken up for hearing on 20th February, 2003,

1

Page 2 along with Civil Appeal No. 5119 of 2002, considering

the important nature of the issues involved for

determination in the said cases, as also the recurring

nature of the problem, it was thought appropriate that

the matters be heard by a larger Bench. Thereafter, on

12th February, 2004, a Bench of Three-Judges headed by

the Chief Justice was of the view that the matters

involved substantial questions of law as to the

interpretation of the Constitution and were required to

be heard by a Bench of Five-Judges. It is pursuant to

such direction that the matter appeared before the

Bench of Five-Judges on several occasions and

ultimately they were listed before a Bench of Five-

Judges on 2nd July, 2013.

2.Although the matter is now before a Bench of five

Judges, the terms of reference are not very clear.

From what we have been able to gather from the

pleadings and the judgment of the Division Bench of the

High Court, the question to be considered is whether

reservation was inapplicable to specialty and super-

specialty faculty posts in the All India Institute of

2

Page 3 Medical Sciences, hereinafter referred to as “AIIMS”.

Faced with the decisions of this Court in the case of

Indra Sawhney Vs. Union of India & Ors. [(1992) Supp.

(3) SCC 215]; Jagdish Saran & Ors. Vs. Union of India &

Ors. [(1980) 2 SCR 831]; and Dr. Pradeep Jain etc. Vs.

Union of India & Ors. etc. [(1984) 3 SCR 942], wherein

reservation in admission to specialty and super-

specialty courses was disallowed, the Division Bench of

the High Court confined itself to the limited issue,

namely, whether reservation policy was inapplicable for

making appointments to the entry level faculty post of

Assistant Professor and to super specialty posts and

also whether the resolutions adopted by AIIMS on

11.1.1983 and 27.5.1994 were liable to be struck down.

3.Appearing for the Petitioner, Mr. P.P. Rao, learned

Senior Advocate, firstly referred to the statement of

objects and reasons of the All India Institute of

Medical Sciences Act, 1956, which provides as follows :

“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

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Page 4 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 both undergraduate 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 degrees for the purpose

of the Indian Medical Council Act, 1933.”

4.Mr. Rao also referred to Section 5 of the Act which

declared the institute to be an institution of national

importance. As pointed out by Mr. Rao, Section 13 of

the Act is in line with the objects for which the

institute was created and Section 14 deals with the

functions of the institute relating to the academic

aspects of the institutes's functions as a teaching

institute.

5.Mr. Rao submitted that the question had earlier been

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Page 5 gone into and considered in Indra Sawhney's case

(supra), wherein while considering the question of

reservation the Bench also took into consideration the

provisions of Article 335 of the Constitution regarding

the claims of Scheduled Castes and Scheduled Tribes to

services and posts. Referring to the concurring

Judgment of Jeevan Reddy, J., learned counsel referred

to Paragraphs 838 and 839 in particular and the

observations made therein. Since Paragraph 838 places

in focus the view of the Nine-Judge Bench, the same is

extracted hereinbelow:

“838. While on Article 335, we are of the opinion

that there are certain services and positions where

either on account of the nature of duties attached

to them or the level (in the hierarchy) at which

they obtain, merit as explained hereinabove, alone

counts. In such situations, it may not be

advisable to provide for reservations. For

example, technical posts in research and

development organisations/departments/

institutions, in specialities and super-

specialities in medicine, engineering and other

such courses in physical sciences and mathematics,

in defence services and in the establishments

connected therewith. Similarly, in the case of

posts at the higher echelons e.g., Professors (in

Education), Pilots in Indian Airlines and Air

India, Scientists and Technicians in nuclear and

space application, provision for reservation would

not be advisable.”

5

Page 6 6.In fact, both in Paragraphs 838 and 839, while

specifying areas, where it may not be advisable to put

reservation, the learned Judge has included posts in

research and development organisations/ departments

/institutions, in specialties and super-specialties in

medicine. The same observation is repeated in

Paragraph 839, wherein, categorically it was held that

the Bench was of the opinion that in certain services

and in respect of certain posts, application of the

rule of reservation may not be advisable and once again

included as the fourth item – posts in super-

specialties in medicine, engineering and other

scientific and technical subjects. Mr. Rao submitted

that as far as medicine is concerned “super-specialty”

means “post doctoral courses”.

7.Mr. Rao submitted that in the instant case,

reservation was being provided for up to the doctoral

stage, but at the stage of recruitment for a post

doctoral courses and research at the initial stage of

candidates were required to sit for a written

examination and those who are successful, were,

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Page 7 thereafter, recruited in the different disciplines of

teaching. Mr. Rao submitted that the problem begins at

that stage when posts are thereafter, reserved in

respect of different courses. Mr. Rao submitted that

once a candidate qualified for recruitment in the

different posts of faculty beginning from the post of

Assistant Professor onward, there was no further logic

in thereafter reserving posts for candidates from the

Scheduled Castes and Scheduled Tribes and OBC

communities. Mr. Rao submitted that at that level of

super-specialty, the question of reservation ought not

to arise as was observed by the Nine-Judge Bench in

Indra Sawhney's case (supra).

8.Mr. Rao submitted that while Article 16(4) empowers

the State in making provisions for reservation of

appointments or posts in favour of any backward class

of citizens which, in the opinion of the State, was not

adequately represented in the services under the State,

the same would have to be read and understood in the

manner indicated in Indra Sawhney's case (supra). The

learned Senior counsel submitted that although definite

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Page 8 directions have not been given in Paragraphs 838 and

839 of the judgment in Indra Sawhney's case (supra),

the observations made therein were guidelines for the

Government and institutions, such as AIIMS, to follow,

in order to provide the best candidates available with

the opportunity of going in for super-specialties which

entail higher degree of skill and where no compromise

in quality and expertise could be entertained.

9.In support of his aforesaid submissions, Mr. Rao

also referred to the decision of a Three-Judge Bench in

Dr. Jagadish Saran & Ors. Vs. Union of India [(1980) 2

SCC 768], wherein in Paragraphs 21, 22 and 23, Krishna

Iyer, J., writing the judgment, spoke about reservation

and what he referred as wholesale banishment of proven

ability to open up, hopefully, some dalit talent, total

sacrifice of excellence at the altar of equalisation –

when the Constitution mandates for every one equality

before and equal protection of the law – may be fatal

folly, self-defeating educational technology and anti-

national if made a routine rule of State Policy. His

Lordship further observed that a fair preference, a

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Page 9 reasonable reservation, a just adjustment of the prior

needs and real potential of the weak with the partial

recognition of the presence of competitive merit – such

is the dynamics of social justice with animates the

three egalitarian articles of the Constitution. The

learned Judge goes on to observe in Paragraph 23 that

flowing from the same stream of equalism is another

limitation. The basic medical needs of a region or the

preferential push justified for a handicapped group

cannot prevail in the same measure at the highest

scales of specialty where the best skill or talent,

must be handpicked by selecting according to

capability. The learned Judge went on to restrict the

Indian Medical Council's recommendations which

indicated that students of post-graduate courses

therein should be selected strictly on merit, judged on

the basis of academic record in the undergraduate

course.

10.The next decision referred to by Mr. Rao is a short

judgment in the case of Dr. Fazal Ghafoor Vs. Union of

India & Ors. [(1988) Supp. SCC 794], which was a

9

Page 10 decision by two Judges, wherein, reliance was placed on

the decision of this Court in the case of Dr. Pradeep

Jain & Ors. Vs. Union of India & Ors. [(1984) 3 SCC

654], wherein, a Three-Judge Bench of this Court, while

considering the question of reservation in the light of

the aspirations of the citizens of India, as contained

in the Preamble to the Constitution, observed that

while reservation was acceptable with regard to the

undergraduate course, different considerations will

have to prevail when it came to the question of

reservation based on residents’ requirement within the

State or on institutional preference for admission to

the post-graduate courses, such as MD, MS and the like.

Following the decision in Dr. Jagadish Saran 's case

(supra), Their Lordship observed that “there we cannot

allow excellence to be compromised by any other

consideration because that would be detrimental to the

interest of the nation. Their Lordships also observed

that if equality of opportunity for every other person

in the country is the constitutional guarantee, merit

must be the test when choosing the best.

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Page 11 11.Mr. Rao lastly referred to the Constitution Bench

decision of this Court in Dr. Preeti Srivastava Vs.

State of M.P. [(1999) 7 SCC 120], which was a writ

petition heard along with several other writ petitions

on various aspects of reservation. Mr. Rao pointed out

that the Constitution Bench also referred to the

decision in Dr. Pradeep Jain ’s case (supra) and also

Dr. Jagadish Saran ’s case (supra), referred to

hereinbefore, in expressing its concurrence with the

views expressed therein. In Paragraph 25 of the

judgment, Sujata V. Manohar, J., speaking for the

Constitution Bench, observed that the specialty and

super-specialty courses in medicine also entailed on-

hand experience of treating or operating on patients in

the attached teaching hospitals. Those undergoing

these programmes are expected to occupy posts in the

teaching hospitals or discharge duties attached to such

posts. The elements of Article 335, therefore, colour

the selection of candidates for these course and the

rules framed for this purpose. Consequently, in

Paragraph 26, it was further observed that in the

premises the special provisions for SC/ST candidates –

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Page 12 whether reservations or lower qualifying marks – at the

specialty level have to be minimal. There cannot,

however, be any such special provisions at the level of

super-specialties. In keeping with its findings the

Constitution Bench ultimately held that since no

relaxation is permissible at the highest levels in the

medical institutions, the Petitioners therein were

right when they contended that the reservations made

for the Scheduled Castes and Scheduled Tribes

candidates for admission to DM and MCH courses, which

are super-specialty courses, in not consistent with the

constitutional mandate under Articles 15(4) and 16(4),

and that Regulation 27 of the Post Graduate Institute

of Medical Education and Research, Chandigarh

Regulations, 1967, would not apply at the levels of

admissions to DM and MCH courses.

12.Mr. Rao submitted that 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 would concentrate on training, well-

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Page 13 qualified teachers and research workers in order that a

steady stream of those could be maintained to meet the

needs of the rapidly expanding health activities

throughout the country. It seems that pursuant to the

said report and after attainment of Independence, the

Union Ministry of Health proceeded to implement the

aforesaid idea resulting in the enactment of the All

India Institute of Medical Sciences Act, 1956, with the

All India Institute of Medical Sciences as an

autonomous institution of national importance and

defined its objectives and functions. Various other

decisions, including the decisions in Saurabh Chaudri

and Others Vs. Union of India and Others [(2003) 11 SCC

146] and T.M.A. Pai Foundation Vs. State of Karnataka

[(2002) 8 SCC 481] were referred to by Mr. Rao to urge

that the observations made in Indra Sawhney's case as

well as in Preeti Srivastava ’s case were binding,

though in the nature of observations made in the

judgments. Mr. Rao referred to the decision of this

Court in Commissioner of Income Tax, Hyderabad-Deccan

Vs. Vazir Sultan and Sons [1959 Supp (2) SCR 375],

wherein a Bench of Three-Judges examined the doctrine

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Page 14 of “obiter dicta” and arrived at a finding that even

obiter at times has the force of law declared by the

Supreme Court under Article 141 of the Constitution.

Mr. Rao ended on the note that the introduction of the

concept of reservation in specialty and super-specialty

subjects or for the appointment of faculty in AIIMS,

would defeat the very purpose for which the institute

was established. Mr. Rao also submitted that if

excellence was to be achieved at the level of super-

specialty disciplines, no compromise could be made in

either imparting such education or recruiting persons

who would impart such education at such level.

13. Dr. Rajiv Dhawan, learned Senior Advocate, who

appeared in Civil Appeal No. 5119 of 2002, submitted

that the AIIMS Act did not empower the Governing Body

to impose reservation at any stage, much less at the

stage of super-specialty. Referring to the affidavit

filed by the Director of AIIMS, Dr. Dhawan submitted

that the decision of the High Court was contrary to the

decision of this Court in Indra Sawhney's case and also

in M. Nagaraj and Others Vs. Union of India and Others

14

Page 15 [(2006) 8 SCC 212] where it was held that there should

be no reservation at the super-specialty stage, and, in

any event, the same would have to be based on

quantifiable data. Mr. Rao submitted that proportional

representation and not adequacy, as understood in Indra

Sawhney’s case or even in M. Nagaraj’s case, has been

resorted to in the instant case in the teeth of the

said two cases. While making reference to the concept

of creamy layer, Dr. Dhawan urged that “equality” does

not mean that reservation had to be applied in each and

every case to maintain such equality, for example, the

creamy layer concept as was considered by this Court in

E.V. Chinnaiah Vs. State of A.P. and Others [(2005) 1

SCC 394].

14.Appearing for the Institute, Mr. Mehmood Pracha,

learned Advocate contended that people from Backward

classes and the Scheduled Castes and the Scheduled

Tribes were often discriminated against and even in

spite of having excellent qualities, they were not

provided with sufficient opportunities to come up to

the standards, as contemplated by the various medical

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Page 16 colleges and, in particular, the All India Institute of

Medical Sciences, which is an institution of national

importance. Mr. Pracha urged that although reservation

at all different levels of the Institute had been

introduced, for quite some time, there is no available

data to indicate that there has been any deterioration

in the quality of medical services being provided in

AIIMS. On the other hand, AIIMS was one of the most

sought after medical institute, not only for promotion

and research work, but also for the purpose of medical

education. Taking a leaf out of Hindu mythology, Mr.

Pracha drew an analogy from the story of Eklavya and

Arjun in the Mahabharta. While Arjun belonged to the

princely class, Eklavya was a tribal boy, who without

actual training or guidance from any teacher, by his

own efforts, excelled in the art of archery. The

famous Dronacharya was Arjun’s teacher in archery and

Eklavya had acquired the skills that he had by merely

watching Dronacharya guiding Arjun. However, when it

came to an archery competition, Dronacharya, who was

more or less certain that, if allowed an opportunity,

Eklavya would possibly beat Arjun, requested Eklavya

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Page 17 that if he really loved and respected him, he should

give his right thumb as gurudakshina to his master.

Eklavya dutifully obeyed the person he had chosen as

his master and was thus prevented from competing in the

competition which Arjun won. Mr. Pracha submitted that

simply because Eklavya was a tribal boy he was denied

the opportunity of competing with Arjun, despite his

brilliance and excellence. Mr. Pracha submitted that

there are many more Eklavyas in today’s society, who,

if not suppressed and given a chance, would possibly

even outshine those belonging to the higher echelons of

Society.

15. Mr. Pracha strongly supported the concept of

reservation at all stages, including at the super-

specialty stage. He urged that at the entry level for

recruitment to the faculty posts, which were all

treated as super-specialty disciplines after the Post

Graduate course, a member of the Backward Classes had

to sit for an examination with others without any

separate weightage given for reservation. It is only

after having passed the written examination along with

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Page 18 other candidates, was a member of the Backward Classes

appointed in a teaching post on the basis of

reservation. Mr. Pracha submitted that this was done

only with the intention of giving such a candidate an

opportunity of reaching the level of his other fellow

faculty members. Mr. Pracha submitted that a little

support was intended to help people from the Backward

communities to make their presence felt in academia, so

as to encourage others similarly situated. Mr. Pracha

also relied on the decision of this Court in Indra

Sawhney’s case, in support of his contention that

members of the Scheduled Castes and Scheduled Tribes

and Other Backward Classes were not adequately

represented and for the said purpose a certain amount

of reservation was necessary so that they could compete

with others and excel in academics. Strongly

supporting the policy adopted by the Institute, Mr.

Pracha submitted that the Civil Appeal filed by the

Faculty of Association of AIIMS was liable to be

dismissed.

16. Appearing for the Union of India, the learned

18

Page 19 Solicitor General repeated the submissions made by Mr.

Pracha and added that the State had a constitutional

duty to empower certain sections of society who needed

help to uplift themselves from their particular

situations. The learned Solicitor General submitted

that Article 46 of the Constitution, though a Directive

Principle, was in the nature of a guideline for good

governance to the Government of the day. The said

Article was intended to help the depressed classes, who

otherwise had little opportunity of raising their

standards. Faced with the question as to when

initially the Central Government had opposed the

doctrine of reservation on the ground of excellence in

education, why was it necessary in 1972 to take a

different stand and come out in support of reservation,

even in super-specialty courses, the learned Solicitor

General urged that the policy was based not on the

question of adequacy, but as a measure of empowerment

for the Backward Classes. While referring to the

decision in M. Nagaraj’s case, which has been referred

to by the other learned counsel, the learned Solicitor

General contended that with the introduction of Article

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Page 20 16(4A) in the Constitution, the decision arrived at in

M. Nagaraj’s case, would have to be read differently.

He, however, also urged that there was no

constitutional prohibition to impose reservation, if it

was felt necessary to benefit the Backward Classes, who

had little or no support to help them improve their

lot. Referring to the decisions of this Court in Dr.

Jagadish Saran's case and Dr. Pradeep Jain ’s case,

which have been referred to hereinabove, the learned

Solicitor General urged that the direction given in Dr.

Pradeep Jain’s case that reservation should not exceed

70%, did not take into consideration Article 16(4A) of

the Constitution, while giving such directions.

17.Although, the matter has been argued at some length,

the main issue raised regarding reservation at the

super-specialty level has already been considered in

Indra Sawhney’s case (supra) by a Nine-Judge Bench of

this Court. Having regard to such decision, we are not

inclined to take any view other than the view expressed

by the Nine-Judge Bench on the issue. Apart from the

decisions rendered by this Court in Dr. Jagadish

20

Page 21 Saran's case (supra) and Dr. Pradeep Jain ’s case

(supra), the issue also fell for considerate in Preeti

Srivastava’s case (supra) which was also decided by a

Bench of Five Judges. While in Dr. Jagadish Saran 's

case (supra) and in Dr. Pradeep Jain’s case (supra) it

was categorically held that there could be no

compromise with merit at the super specialty stage, the

same sentiments were also expressed in Preeti

Srivastava’s case (supra) as well. In Preeti

Srivastava’s case (supra), the Constitution Bench had

an occasion to consider Regulation 27 of the Post

Graduate Institute of Medical Education and Research,

Chandigarh Regulations, 1967, whereby 20% of seats in

every course of study in the Institute was to be

reserved for candidates belonging to the Scheduled

Castes, Scheduled Tribes or other categories of

persons, in accordance with the general rules of the

Central Government promulgated from time to time. The

Constitution Bench came to the conclusion that

Regulation 27 could not have any application at the

highest level of super specialty as this would defeat

the very object of imparting the best possible training

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Page 22 to selected meritorious candidates, who could

contribute to the advancement of knowledge in the field

of medical research and its applications. Their

Lordships ultimately went on to hold that there could

not be any type of relaxation at the super specialty

level.

18.In paragraph 836 of the judgment in Indra Sawhney’s

case (supra), it was observed that while the relevance

and significance of merit at the stage of initial

recruitment cannot be ignored, it cannot also be

ignored that the same idea of reservation implies

selection of a less meritorious person. It was also

observed that at the same time such a price would have

to be paid if the constitutional promise of social

justice was to be redeemed. However, after making such

suggestions, a note of caution was introduced in the

very next paragraph in the light of Article 15 of the

Constitution. A distinction was, however, made with

regard to the provisions of Article 16 and it was held

that Article 335 would be relevant and it would not be

permissible not to prescribe any minimum standard at

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Page 23 all. Of course, the said observation was made in the

context of admission to medical colleges and reference

was also made to the decision in State of M.P. Vs.

Nivedita Jain [(1981) 4 SCC 296], where admission to

medical courses was regulated by an entrance test. It

was held that in the matter of appointment of medical

officers, the Government or the Public Service

Commission would not be entitled to say that there

would not be minimum qualifying marks for Scheduled

Castes/Scheduled Tribes candidates while prescribing a

minimum for others. In the very next paragraph, the

Nine-Judge Bench while discussing the provisions of

Article 335 also observed that there were certain

services and posts where either on account of the

nature of duties attached to them or the level in the

hierarchy at which they stood, merit alone counts. In

such situations, it cannot be advised to provide for

reservations. In the paragraph following, the position

was made even more clear when Their Lordships observed

that they were of the opinion that in certain services

in respect of certain posts, application of rule of

reservation may not be advisable in regard to various

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Page 24 technical posts including posts in super specialty in

medicine, engineering and other scientific and

technical posts.

19.We cannot take a different view, even though it has

been suggested that such an observation was not

binding, being obiter in nature. We cannot ascribe to

such a view since the very concept of reservation

implies mediocrity and we will have to take note of the

caution indicated in Indra Sawhney's case. While

reiterating the views expressed by the Nine-Judge Bench

in Indra Sawhney’s case, we dispose of the two Civil

Appeals in the light of the said views, which were also

expressed in Dr. Jagadish Saran 's case, Dr. Pradeep

Jain's case, Dr. Preeti Srivastava 's case. We impress

upon the Central and State Governments to take

appropriate steps in accordance with the views

expressed in Indra Sawhney's case and in this case, as

also the other decisions referred to above, keeping in

mind the provisions of Article 335 of the Constitution.

20.There will be no order as to costs.

24

Page 25 ………………………………………………… CJI.

(ALTAMAS KABIR)

……………………………………………………… J.

(SURINDER SINGH NIJJAR)

……………………………………………………… J.

(RANJAN GOGOI)

……………………………………………………… J.

(M.Y. EQBAL)

……………………………………………………… J.

(VIKRAMAJIT SEN)

New Delhi

Dated: July 18, 2013.

25