1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Writ Petition (C) No. 961 of 2021

Neil Aurelio Nunes and Ors. … Petitioners

Versus

Union of India and Ors. … Respondents

With

Writ Petition (C) No 967 of 2021

With

Writ Petition (C) No 1002 of 2021

With

Writ Petition (C) No 1021 of 2021

And With

Writ Petition (C) No 1105 of 2021

2

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

This judgment has been divided into the following sections to facilitate analysis:

A. Factual Background ............................................................................................ 3

B. Pendency of the Writ Petition Instituted by Saloni Kumari ............................ 10

C. Submissions of Counsel ................................................................................... 11

D. Analysis .............................................................................................................. 18

D. 1 The Merit of Reservation ............................................................................. 18

D.2 The Court and the AIQ seats ...................................................................... 39

D.3 The Executive’s power to introduce reservation in AIQ seats ................. 59

D.4 Changing the Rules of the Game ................................................................ 61

E. Conclusion ......................................................................................................... 66

PART A

3

A. Factual Background

1 These writ petitions challenge the reservation for Other Backward Classes

1

and the Economically Weaker Section

2

in the All-India Quota

3

seats in the

National Eligibility cum Entrance Test examination

4

for undergraduate

5

and

postgraduate

6

medical courses. The Directorate General of Health Services in the

Union Ministry of Health and Family Welfare

7

issued a notice on 29 July 2021

providing 27 percent reservation for OBC (non-creamy layer) and 10 percent

reservation for EWS in the 15 percent UG and 50 percent PG seats in AIQ from

the academic year 2021-2022. By an order dated 7 January 2022, a two-judge

Bench of this Court upheld the constitutional validity of the OBC reservation in

AIQ seats and posted the challenge to the validity of the EWS criteria for final

hearing in the third week of March 2022. This judgement provides reasons for

upholding the permissibility of reservations in the AIQ seats and constitutionality

of OBC reservation in AIQ seats.

2 Some of the salient facts that have led to the implementation of OBC

reservation in AIQ seats are being adverted for setting out the broad contours of

the controversy. While we have discussed in detail the history of the AIQ and the

evolution of an All-India common entrance examination in Section D.2, it is

sufficient to highlight that the scheme of AIQ seats was devised by this Court in

1

“OBC”

2

“EWS”

3

“AIQ”

4

―NEET-PG‖

5

―UG‖

6

―PG‖

7

―MH&FW‖

PART A

4

Dr Pradeep Jain v. Union of India

8

to provide domicile free seats in State run

medical and dental institutions. The AIQ scheme was further developed by this

Court in Dinesh Kumar (I) v. Motilal Nehru Medical College

9

and Dinesh

Kumar (II) v. Motilal Nehru Medical College

10

. Presently, under the AIQ

scheme, 15 percent UG seats and 50 percent PG seats in State–run institutions

are surrendered by the states to the AIQ. The remaining seats in the State

institutions are reserved for candidates domiciled in the respective States.

3 The Constitution (Ninety-Third Amendment) Act 2005 amended Article 15 of

the Constitution by inserting clause (5) to Article 15 to empower the State to

make special provisions (including reservation) for the advancement of socially

and educationally backward classes (or the OBCs) relating to their admission in

educational institutions. Article 15 (5) reads thus:

―(5) Nothing in this article or in sub-clause (g) of clause

(1) of article 19 shall prevent the State from making any

special provision, by law, for the advancement of any

socially and educationally backward classes of citizens or

for the Scheduled Castes or the Scheduled Tribes in so

far as such special provisions relate to their admission to

educational institutions including private educational

institutions, whether aided or unaided by the State, other

than the minority educational institutions referred to in

clause (1) of article 30.‖

4 In Abhay Nath v. University of Delhi

11

, this Court held that reservations for

Scheduled Caste

12

and Scheduled Tribe

13

candidates are permissible in the AIQ

seats. The Central Educational Institutions (Reservation in Admissions) Act

8

(1984) 3 SCC 654

9

(1985) 3 SCC 22

10

(1986) 3 SCC 727

11

(2009) 17 SCC 705

12

“SC”

13

“ST”

PART A

5

2006

14

, which came into effect on 3 January 2007, was enacted to provide for

reservation for students belonging to the SCs, STs and OBCs in Central

educational institutions. The Act of 2006 provided that 15 percent seats shall be

reserved for SCs, 7.5 percent seats for STs, and 27 percent seats for OBCs in

Central educational institutions. However, reservation for OBCs was not

extended to State contributed seats for AIQ in State-run institutions.

5 The State of Tamil Nadu granted 50 percent reservation to OBCs in State-

run medical institutions under the Tamil Nadu Backward Classes, Scheduled

Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions

and of Appointments or Posts in the Services under the State) Act, 1993

15

. Thus,

the State quota seats were being filled according to the provisions of the Act of

1993. A writ petition

16

was instituted before this Court by Dravida Munnetra

Kazhagam

17

seeking a mandamus to provide OBC reservation in AIQ. This Court

by its order dated 11 June 2020 directed that the issue be agitated before the

Madras High Court. This Court observed thus:

―The learned senior counsel for the petitioners seek

permission to withdraw these Writ Petitions with liberty to

approach the High Court by filing Writ Petitions under

Article 226 of the Constitution.

Permission granted.

The Writ Petitions are, accordingly, dismissed as

withdrawn with the aforesaid liberty.‖

6 Pursuant to the above order, DMK instituted a writ petition

18

before the

Madras High Court arguing that the AIQ seats available in State-run medical and

14

―Act of 2006‖

15

―Act of 1993‖

16

WP No 507 of 2020

17

―DMK‖

18

WP No 8326 of 2020

PART A

6

dental institutions in the State of Tamil Nadu must follow the reservation policy as

applicable under the Act of 1993. However, the Madras High Court after issuing

notice in the petition accepted the argument of the Union Government that the

hearing in the matter be deferred in view of the pendency of a writ petition

19

before this Court on a similar issue. Aggrieved by the deferral of the hearing,

special leave petitions were instituted before this Court. By its order dated 13 July

2020, this Court disposed of the petitions holding that the issue raised in the writ

petition pending before it is different from the one raised by the DMK before the

Madras High Court and directed the High Court to proceed with the hearing of the

case. This Court made the following observations:

―Permission to file Special Leave Petition without

certified/plain copy of impugned order in Diary No.

13644/2020 is granted.

These special leave petitions are directed against the

order dated 22.6.2020 by which the High Court adjourned

the matters in view of the pendency of Writ Petition

No.596 of 2015 in this Court. This order was passed on

the basis of the stand taken by the Union of India that the

points arising in the writ petitions filed in the High Court

are similar to those that arose in Saloni Kumari and Anr.

Versus DGHS & Ors. (Writ Petition No.596 of 2015).

We have perused the writ petition filed by Saloni Kumari

which is pending consideration in this Court. The issue

that arises in the writ petition pertains to the

implementation of 27% seats for admission to Post

Graduate courses in the All India Quota. The complaint of

the petitioner is that the seats in the 27% quota of OBCs

should not be restricted to Central Government

institutions.

Whereas, the writ petitions pending in the High Court

involve a dispute pertaining to the percentage of

reservation to be followed in State of Tamil Nadu in

respect of the surrendered seats in the All India Quota for

PG medical admissions.

As the point raised in the writ petitions pending in the

High Court is not similar to that in Saloni Kumari‘s case,

the High Court can proceed to adjudicate the writ

19

Saloni Kumari v Director General Health Services WP(C) No 596/2015.

PART A

7

petitions on merits. We are informed that the writ petitions

are listed before the High Court for final hearing on

17.7.2020. The High Court is requested to decide the writ

petitions expeditiously.

Special Leave Petitions are disposed of accordingly.‖

7 The Madras High Court by its judgement dated 27 July 2020 disposed of the

writ petition holding that there are no legal or constitutional impediments in

extending reservation to OBCs in the AIQ seats in the medical colleges in the

State of Tamil Nadu. The High Court directed the Union Government to constitute

an Expert Committee for implementing reservation for OBCs in the seats

surrendered by the State of Tamil Nadu in AIQ. However, the High Court

observed that the reservation should be implemented only from the academic

year 2021-2022 since it would disturb the selection process that had been set

into motion for the academic year of 2020-2021. The State of Tamil Nadu

challenged the order of the Madras High Court dated 27 July 2020 before this

Court in a special leave petition

20

on the limited ground that the High Court erred

in denying implementation of the OBC reservation for the academic year 2020-

2021. In its order dated 26 October 2020, this Court upheld the order of the High

Court regarding the implementation of the OBC reservation from the subsequent

academic year 2021-2022.

8 The MH&FW set up an Expert Committee to determine the modalities of

granting reservation to OBC candidates in AIQ seats in UG and PG courses in

state-run medical colleges within the State of Tamil Nadu from the academic year

2021-2022. The Committee recommended two options in its final report, i.e.,

20

SLP (C) No 9286 of 2020

PART A

8

either State-specific reservation can be implemented for OBCs in AIQ seats or

OBC reservation can be granted in terms of the provisions of the Act of 2006.

9 A Contempt petition

21

was instituted by DMK before the Madras High Court

against the Union of India for non-implementation of OBC reservation in AIQ

seats. In the meanwhile, a notice dated 29 July 2021 was issued by the

Directorate General of Health Services, MoHFW to implement 27 percent OBC

reservation (non-creamy Layer) and 10 percent EWS reservation in the 15

percent UG and 50 percent PG AIQ seats in the current academic session of

2021-22. The notice stated thus:

“NOTICE

Urgent Attention Candidates of NEET-UG and NEET-

PG:

It has been decided by the Government of India to

implement 27% OBC reservation (Non-creamy later) and

10% EWS reservation in the 15% AIQ UG seats and the

50% All India Quota seats (MBBS/BDS and

MD/MS/MDS) (contributed by the State/UTs). This

reservation will take effect from the current Academic

session 2021-22.

Consequently, the overall reservation in 15% UG and

50% PG All India Quota seats would be as follows:

SC-15%

ST-7.5%

OBC (Non-creamy layer) as per the Central OBC list-27%

EWS- as per the Central Government Norms-10%

PwD-5% Horizontal Reservation as per NMC Norms‖

21

Contempt Petition No 181 of 2021

PART A

9

10 By its order dated 25 August 2021, the Madras High Court dismissed the

contempt petition since the Union Government had complied with the order dated

27 July 2020 of the Madras High Court by constituting a committee. The High

Court observed thus:

―Since the committee required to be constituted by the

order dated July 27, 2020 was instituted and such

committee gave its opinion and the Union, or its

appropriate agencies, have acted on the basis thereof,

albeit not exactly in terms of the recommendations, no

case of willfull or deliberate violation of the said order can

be said to have been made out."

Nonetheless, the High Court proceeded to scrutinize the validity of the notification

dated 29 July 2021 providing reservation for OBC and EWS candidates in AIQ

seats in medical and dental institutions. With respect to the reservation granted to

EWS under the notification dated 29 July 2021, the High Court observed that

such reservation can be permitted only with the approval of this Court. Special

leave petitions were instituted before this Court challenging the order of the

Madras High Court. This Court by its order dated 24 September 2021 disposed of

the petitions observing that the Madras High Court in its contempt jurisdiction

could not have entered into a discussion on the validity of the EWS reservation

provided by the notice dated 29 July 2021 and set aside the direction that the

approval of this Court should be received before implementing reservation for the

EWS category in AIQ seats.

11 We have traced the trajectory of the introduction of OBC reservation in

NEET AIQ seats, which is challenged before this Court in the present batch of

writ petitions. By its order dated 7 January 2022, this Court upheld the

constitutional validity of the OBC reservation in AIQ medical and dental UG and

PART B

10

PG seats. The constitutionality of the criteria used for the identification of the

EWS category is yet to be decided. However, in the interim, this Court directed

that the counselling in NEET-PG 2021 and NEET-UG 2021 be conducted by

giving effect to the reservation provided by the notice dated 29 July 2021,

including the 27 percent OBC reservation and 10 percent EWS reservation. The

challenge to the validity of the OBC reservation in AIQ seats is dealt with in this

judgement.

B. Pendency of the Writ Petition instituted by Saloni Kumari

12 We are aware that a writ petition was filed by Saloni Kumari seeking 27

percent OBC reservation in AIQ seats in State-run medical institutions on the

ground that such reservation should not be restricted to Central education

institutions in terms of the Act of 2006. The claim raised in that petition was of

parity. The issue that has been raised before us is of the validity of the notification

dated 29 July 2021 that provides for 27 percent OBC reservation in the AIQ seats

in UG and PG seats from the academic year 2021-2022. On account of the

difference in the nature of the issues raised before this Court, we will proceed to

rule on the validity of the notification dated 29 July 2021.

PART C

11

C. Submissions of Counsel

13 Mr Shyam Divan, learned Senior Counsel appearing for the petitioners

argued that there must be no reservation for the OBC community in the AIQ

quota. In pursuance of this argument, he made the following submissions:

(i) In Pradeep Jain v. Union of India

22

, this Court raised serious

concerns about the reservation in PG seats. Once a person is qualified

as a doctor, he cannot be treated as belonging to a backward class

anymore. Therefore, admission in PG seats must be purely based on

merit, without any reservation;

(ii) At the level of PG and super-speciality

23

, doctors are required to

possess high degree of skill and expert knowledge in specialised

areas. This skill cannot be acquired by everyone. It would be

detrimental to national interest to have reservations at this stage.

Opportunities that are available for such training are minimal and

therefore, it should only be available to the most meritorious;

(iii) This Court in Pradeep Jain (supra) created a right against reservation

in the AIQ seats. The judgment of this Court in Abhay Nath v.

University of Delhi

24

allowing reservations for SC and ST categories

in the AIQ is per incuriam in light of the judgments in Pradeep Jain

(supra), Union of India v. R. Rajeshwaran

25

and Union of India v.

Jayakumar

26

;

22

(1984) 3 SCC 654

23

“SS”

24

(2009) 17 SCC 705

25

(2003) 9 SCC 294

26

(2008) 17 SCC 478

PART C

12

(iv) The AIQ scheme was conceived by this Court in Pradeep Jain (supra)

and developed in Dinesh Kumar (I) (supra) and Dinesh Kumar (II)

(supra). Therefore, only this Court can alter the reservation scheme in

the AIQ seats. The Union Government ought to have made an

application to this Court apprising it of its intention to provide

reservation for OBC and EWS categories in AIQ, and this Court could

decide to allow or deny permission;

(v) It has been held by this Court in Dr Preeti Srivastava v. State of

Madhya Pradesh

27

and various other cases that reservation in PG

courses must be minimum;

(vi) Even if reservation for the OBC category in the AIQ seats is

constitutionally valid, it ought not to have been introduced for the

academic year of 2021-22 since the notice on reservation for the OBC

category was introduced after the registration window was closed. It is

a settled principle that the rules of the game cannot be changed after

the game has begun;

(vii) The candidates had registered for the exam against a certain seat

matrix, having knowledge of the total number of seats for which they

could compete. The impugned notification alters the seat matrix,

changing the rules of the game after the game had begun;

(viii) The phrase ‗as may be applicable‘ in clause 11.1 of the information

bulletin must be read to mean the reservation applicable as on the date

27

(1999) 7 SCC 120

PART C

13

of registration. The rules of the game were set when the registration

closed; and

(ix) In specific branches of specialisation such as MD Radiology, MD

Dermatology, MD Gynaecology, MS Psychiatry, MD (Chest), MD

Preventive and Social Medicine, MD Forensic Medicine, MS

Microbiology, MS Pathology, MD Biochemistry, MS Anatomy, MS

Orthopedics, and MS ENT, no SS course is offered in India. Therefore,

such courses are the end of the branch and there must be no

reservation in such courses since they are equivalent to SS courses

(Dr. Preeti Srivastava (supra)).

14 The Union of India addressed the following arguments contending that the

27 percent reservation for the OBC category in AIQ seats is constitutionally valid.

Mr Tushar Mehta, Solicitor General and Mr KM Nataraj, Additional Solicitor

General made the following submissions:

(i) The rules of the game were not changed after the process had begun

since the reservation through the impugned notice issued on 29 July 2021

was introduced much prior to the date on which the exams were conducted

and before the commencement of the counselling process. The NEET PG

examination schedule is as follows:

(a) Release of Information Brochure: 23 February 2021

(b) Commencement of Registration Process: 23 February 2021

(c) Last date of Registration: 15 March 2021

(d) Scheduled examination date: 18 April 2021

(e) Postponement for four months on: 03 May 2021

PART C

14

(f) New date of examinations announced on: 13 July 2021

(g) New date for examination: 11 September 2021

Clause 11.1 of the information bulletin issued on 23 February 2021 states

that reservation of PG seats shall be as per the norms of the Central

Government and the respective State Governments. Clause 11.2 states

that a separate handbook providing information on the counselling process

and applicable reservation shall be released by the designated counselling

authority for NEET-PG 2021. Therefore, the process begins only with the

commencement of the counselling process and not when the registration

closes;

(ii) Reservation in AIQ seats according to the impugned notice has been

implemented for MDS admissions in the current academic year of 2021-22;

(iii) The AIQ scheme was introduced in 1986 to provide domicile free

admission to students from across the country. Till 2007, there was no

reservation in the AIQ. In 2007, this Court in the case of Abhay Nath

(supra) permitted 15 percent reservation for the SCs and 7.5 percent

reservation for the STs in the AIQ seats. The Act of 2006 providing 27

percent reservation to OBCs which came into force in 2007 was

implemented in all Central educational institutions, including medical

colleges run by the Central Government;

(iv) The AIQ scheme is a Central scheme. Therefore, the Central List of OBCs

shall be used for implementing the reservation. Around 1500 OBC students

in UG and 2500 in PG will be benefitted through reservation for OBC

category in AIQ seats;

PART C

15

(v) In the last six years, MBBS seats in the country have been increased by 56

percent from 54,348 in 2014 to 84,649 seats in 2020. The number of PG

medical seats has been increased by 80 percent from 30,191 seats in

2014 to 54,275 seats in 2020;

(vi) Providing reservation for the AIQ seats in medical/dental courses is a

matter of policy;

(vii) Though observations have been made by this Court on the desirability or

otherwise of reservation in PG courses, it has never been held to be

unconstitutional; and

(viii) This Court in Pradeep Jain (supra) only held that there would be no

domicile-based reservation in the AIQ seats. It was not held that no

reservation otherwise would be impermissible in the AIQ seats.

Subsequent decisions of this Court (Saurabh Chaudri v. Union of India

28

;

Gulshan Prakash v. State of Haryana

29

) have clarified that this Court in

Pradeep Jain (supra) had only observed that the AIQ seats shall be free

from domicile reservation.

15 Mr P Wilson, learned Senior Counsel appearing for the DMK, submitted

that the 27 percent reservation for the OBC seats in the AIQ is constitutionally

valid. The Senior Counsel made the following submissions:

(i) Parliament by the Constitution (Ninety-Third Amendment) Act 2005

introduced Clause (5) in Article 15 providing reservation for the SCs, STs

and socially and educationally backward classes (or the OBCs) in

admission to educational institutions, including private educational

28

(2003) 11 SCC 146

29

(2010) 1 SCC 477

PART C

16

institutions, aided or unaided by the State and other minority educational

institutions. Pursuant to the amendment, the Union Government enacted

the Act of 2006 providing 27 percent reservation for the OBC category in

Central educational institutions. The Supreme Court upheld the

constitutional validity of the Ninety-Third Constitutional Amendment and

the Act of 2006 in Ashoka Kumar Thakur v. Union of India

30

. The Tamil

Nadu State legislature enacted the Tamil Nadu Backward Classes,

Scheduled Castes and Scheduled Tribes (Reservation of Seats in

Educational Institutions and of Appointments or Posts in the Services

under the State) Act 1993 providing 69 percent reservation. The enactment

permits 50 percent reservation for backward classes and the most

backward classes. Therefore, both the State legislature and the Parliament

allow reservation for the OBC category;

(ii) Regulation 9(IV) of the PG Medical Education Regulations 2000 and

Regulation 5(5) of the UG Medical Education Regulations stipulate

reservation for the categories based on the applicable laws prevailing in

the States/Union Territories. Therefore, reservation must be applicable to

all seats including the State contributed seats of AIQ;

(iii) Merit cannot be measured solely in terms of marks. Merit must be

construed in terms of the social value of a member in the medical

profession (Pradeep Jain (supra);

(iv) In UG courses, the States contribute 15 percent seats to the AIQ. Of the

6060 seats in the AIQ contributed by the States, 1636 seats (that is 27

30

(2007) 4 SCC 361

PART C

17

percent) seats ought to have been reserved for the OBC category on the

enactment of the Act of 2006. Similarly, 2569 of the 9515 seats contributed

by the States to the AIQ in PG courses ought to have been reserved for

the OBC category;

(v) The Madras High Court in a judgment dated 27 July 2020 (in WP No. 8626

of 2020) had observed that there was no legal or constitutional impediment

in extending the benefit of reservation to the OBC category in the AIQ in

PG courses. The petitioners have not challenged the judgment of the

Madras High Court;

(vi) Clause 11 of the information bulletin for the NEET-PG examination states

that reservation would be ‗as per the norms of GOI and State prevailing at

the time of counselling’. Therefore, the argument of the petitioners that the

rules of the game should not be changed in the middle of the game would

be applicable only if the reservation was introduced after the counselling

had begun;

(vii) The submission of the petitioners that no reservation was provided at the

level of SS in view of the judgment of this Court in Dr. Preeti Srivastava

(supra) is erroneous since the Act of 2006 only exempts reservations in

institutions of excellence, research institutions, and institutions of national

and strategic importance specified in the schedule of the Act, and Minority

Educational Institutions as referred to under section 4 of the Act of 2006.

Reservation is provided in SS courses in Central educational institutions

such as AIIMS and JIPMER;

PART D

18

(viii) Central medical institutions such as AIIMS and PGI hold their own

examination twice a year for PG courses. There is no demarcation of State

Quota and AIQ in these Central institutions. Therefore, the AIQ PG seats

are different from PG seats of Central institutions; and

(ix) Reservation can be provided either through a legislation or by an executive

order such as a notification, order, and memorandum.

16 The arguments of the petitioners are three-fold: (i) Admissions to PG

courses must solely be based on open competition; (ii) this Court in Pradeep

Jain (supra) and subsequent cases has held that there shall be no reservation in

the AIQ seats and that admission to the AIQ seats shall be strictly by open

competition; and (iii) as this Court evolved the concept of AIQ seats, any

reservation to be introduced in the AIQ seats must only be pursuant to the

direction of this Court.

D. Analysis

D. 1 The Merit of Reservation

17 On behalf of the petitioners, it was urged that at the level of PG courses, a

high degree of skill and expertise is required. Thus, such opportunities must be

available to the most meritorious and providing any reservation for PG seats

would be detrimental to national interest. In effect, a binary was sought to be

created between merit and reservation, where reservation becomes antithetical to

establishing meritocracy. This is not a novel argument. There has been a

longstanding debate over whether reservation for any class impinges on the idea

of merit. In the Constituent Assembly Debates on draft Article 10, which has been

PART D

19

incorporated as Article 16 of the Constitution, some members raised concerns on

the inclusion of clause (3) to draft Article 10 (now Article 16 (4) of the

Constitution) which provided that the State is empowered to make reservation in

appointments or posts in favour of any backward class of citizens who, in the

opinion of the State, is not adequately represented in the services under the

State. Certain members of the Constituent Assembly argued for the deletion of

clause (3). For instance, Shri Loknath Misra stated that such a provision puts, ―a

premium on backwardness and inefficiency‖ and no citizen had a fundamental

right ―to claim a portion of State employment, which ought to go by merit alone.‖

Shri Damodar Swarup Seth argued that reservation results in the ―very negation

of efficiency and good Government‖ and appointments should be ―made on merit

and qualification‖. However, the Constituent Assembly rejected these claims and

adopted clause (3) of draft Article 10. Although there was debate on the meaning

of ―backward classes‖, it was felt that there must be a provision that enables entry

of those communities into administration since they were deprived of such access

in the past and formal equality of opportunity would not suffice.

31

However, the

view that merit or efficiency in service is distinct from concerns of advancement of

backward classes persisted for some members. Shri KM Munshi (a member of

the Drafting Committee) observed that:

―What we want to secure by this clause [Article 10] are two

things. In the fundamental right in the first clause we want to

achieve the highest efficiency in the services of the State--

highest efficiency which would enable the services to function

effectively and promptly. At the same time, in view of the

conditions in our country prevailing in several provinces, we

want to see that backward classes, classes who are really

backward, should be given scope in the State services; for it

31

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PART D

20

is realised that State services give a status and an

opportunity to serve the country, and this opportunity should

be extended to every community, even among the backward

people.‖

However, many members also recognized that merit cannot be separated from

the function of the existing inequalities in society. They envisaged that social

justice must be read into the promise of equality of opportunity; otherwise the

latter merely advances the interests of the privileged. During the debates on draft

Article 286, which pertained to the functions of Public Service Commission with

regard to appointments to public posts, Dr PS Deshmukh argued that:

―…people's capacities cannot be measured by mere passing

of examinations or obtaining the highest possible marks. But

those communities who have had the advantage of English

education, because they were prepared to be more servile

than the rest, think it is a preserve of theirs, and whenever

anybody gets up and speaks on behalf of the millions who

have had no chances of education, they consider it as a

threat to their monopoly on the part of the rest of the

communities and accuse the advocates as communal and

communally minded. There is no communalism in this.

Neither I nor anybody who speaks on their behalf want any

particular community to dominate, where as those who

oppose this move are interested only in particular

communities. They want to preserve communalism while

accusing us of communalism because they have had the

advantage of education which they fear will be taken away.

They think and urge that merit is or can be tested only by

examinations. But so far as the masses of the country are

concerned, the millions of our populations who have not had

even the chance to get primary school education, they have

no place so far as the public services are concerned, so long

as the present system lasts.‖

32

Shri Phool Singh emphatically provided a conception of substantive equality

when he stated that merit of candidates cannot be evaluated through an open

competition without regard to their social positions. He further highlighted that the

meaning of merit should also take into reference the task that is to be carried out.

He stated thus:

32

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PART D

21

―…Much has been made of merit in this case; but equal merit

pre-supposes equal opportunity, and I think it goes without

saying that the toiling masses are denied all those

opportunities which a few literate people living in big cities

enjoy. To ask the people from the villages to compete with

those city people is asking a man on bicycle to compete with

another on a motorcycle, which in itself is absurd. Then again,

merit should also have some reference to the task to be

discharged. Mr.Tyagi interrupted Dr. Deshmukh by saying

that it is a fight for the illiterates. I think, however sarcastic

that remark may be, he was probably right. Self-Government,

means a government by the people, and if the people are

illiterate, a few leaders have no right to usurp all the power to

themselves. This cry, this bogey of merit and fair-play is being

raised by those who are in a[n] advantageous position and

who stand to suffer if others also come into the picture.‖

33

While these observations were made in the context of employment to public

posts, the debate on conceptualisation of reservation as an exception to the

principle of merit has relevance in regard to admission to educational institutions

as well. The debates in Constituent Assembly were limited to reservation in public

posts because reservation in educational institutions was introduced through a

subsequent constitutional amendment.

18 On its part, this Court initially subscribed to the binary of merit and

reservation. Articles 14, 15(1) and 16(1) were thought to embody the general

principle of formal equality. Articles 15 (4) and 16 (4) were understood to be

exceptions to this general principle, advancing the cause of social justice. This

Court sought to balance these competing imperatives. In such an understanding,

merit is equated to formal equality of opportunity which has to be balanced

against the concerns of social justice through reservation. In MR Balaji v. State

of Mysore

34

, a Constitution Bench of this Court observed that Article 15 (4) is an

exception to Article 15 (1), which was introduced ―because the interests of the

33

Ibid

34

1963 Supp (1) SCR 439

PART D

22

society at large would be served by promoting advancements of the weaker

elements in the society‖.

35

However, since Article 15 (4) (or reservation) was

considered at odds with the notion of formal equality under Article 15 (1), which is

broadly understood as complying with the principle of merit, this Court observed

that there should be a cap on reservations, which it specified generally should be

50 percent.

36

This Court stated:

―32. …Therefore, in considering the question about the

propriety of the reservation made by the impugned order, we

cannot lose sight of the fact that the reservation is made in

respect of higher university education. The demand for

technicians, scientists, doctors, economists, engineers and

experts for the further economic advancement of the country

is so great that it would cause grave prejudice to national

interests if considerations of merit are completely excluded by

whole-sale reservation of seat in all technical, Medical or

Engineering colleges or institutions of that kind. Therefore,

considerations of national interest and the interests of the

community or society as a whole cannot be ignored in

determining the question as to whether the special provision

contemplated by Article 15(4) can be special provision which

exclude the rest of the society altogether. In this connection, it

would be relevant to mention that the University Education

Commission which considered the problem of the assistance

to backward communities, has observed that the percentage

of reservation shall not exceed a third of the total number of

seats, and it has added that the principle of reservation may

be adopted for a period of ten years (p. 53).‖

19 This view was followed by this Court in subsequent judgements where a

special provision made for the benefit of a class was seen as a deviation from the

principle of formal equality.

37

However, the dominant view of this Court was

challenged by the Justice R Subba Rao in his dissent in T. Devadasan v. Union

of India, where the learned judge stated that Article 16 (4) is not an exception but

35

Ibid, paragraph 31.

36

Ibid, paragraph 34.

37

T. Devadasan v. Union of India (1964) 4 SCR 680; CA Rajendran v. Union of India (1968) 1 SCR 721

PART D

23

rather a facet of Article 16 (1), which seeks to redress the historical disadvantage

suffered by certain communities. Justice Subba Rao observed thus:

―26. Article 14 lays down the general rule of equality. Article

16 is an instance of the application of the general rule with

special reference to opportunity of appointments under the

State. It says that there shall be equality of opportunity for all

citizens in matters relating to employment or appointment to

any office under the State. If it stood alone, all the backward

communities would go to the wall in a society of uneven basic

social structure; the said rule of equality would remain only an

utopian conception unless a practical content was given to it.

Its strict enforcement brings about the very situation it seeks

to avoid. To make my point clear, take the illustration of a

horse race. Two horses are set down to run a race —one is a

first class race horse and the other an ordinary one. Both are

made to run from the same starting point. Though

theoretically they are given equal opportunity to run the race,

in practice the ordinary horse is not given an equal

opportunity to compete with the race horse. Indeed, that is

denied to it. So a handicap may be given either in the nature

of extra weight or a start from a longer distance. By doing so,

what would otherwise have been a farce of a competition

would be made a real one. The same difficulty had confronted

the makers of the Constitution at the time it was made.

Centuries of calculated oppression and habitual submission

reduced a considerable section of our community to a life of

serfdom. It would be well nigh impossible to raise their

standards if the doctrine of equal opportunity was strictly

enforced in their case. They would not have any chance if

they were made to enter the open field of competition without

adventitious aids till such time when they could stand on their

own legs. That is why the makers of the Constitution

introduced clause (4) in Article 16. The expression ―nothing in

this article‖ is a legislative device to express its intention in a

most emphatic way that the power conferred thereunder is

not limited in any way by the main provision but falls outside

it. It has not really carved out an exception, but has preserved

a power untrammelled by the other provisions of the article.‖

20 The view expressed by Justice Subba Rao was adopted by this Court in

State of Kerala v. NM Thomas

38

, which transformed the equality jurisprudence

in India from that of formal equality to substantive equality; thus, also changing

our understanding of reservations. Chief Justice AN Ray writing the judgement of

this Court held:

38

(1976) 2 SCC 310

PART D

24

―44. Our Constitution aims at equality of status and

opportunity for all citizens including those who are socially,

economically and educationally backward. The claims of

members of Backward Classes require adequate

representation in legislative and executive bodies. If members

of Scheduled Castes and tribes, who are said by this Court to

be Backward Classes, can maintain minimum necessary

requirement of administrative efficiency, not only

representation but also preference may be given to them to

enforce equality and to eliminate inequality. Article 15(4) and

16(4) bring out the position of Backward Classes to merit

equality. Special provisions are made for the advancement of

Backward Classes and reservations of appointments and

posts for them to secure adequate representation. These

provisions will bring out the content of equality guaranteed by

Articles 14, 15(1) and 16(1). The basic concept equality is

equality of opportunity for appointment. Preferential treatment

for members of Backward Classes with due regard to

administrative efficiency alone can mean equality of

opportunity for all citizens. Equality under Article 16 could not

have a different content from equality under Article 14.

Equality of opportunity for unequals can only mean

aggravation of inequality. Equality of opportunity admits

discrimination with reason and prohibits discrimination without

reason. Discrimination with reasons means rational

classification for differential treatment having nexus to the

constitutionally permissible object. Preferential representation

for the Backward Classes in services with due regard to

administrative efficiency is permissible object and Backward

Classes are a rational classification recognised by our

Constitution. Therefore, differential treatment in standards of

selection are within the concept of equality.‖

The majority of the judges accepted that special provisions (including reservation)

made for the benefit of any class are not an exception to the general principle of

equality. Special provisions are a method to ameliorate the structural inequalities

that exist in the society, without which, true or factual equality will remain illusory.

Justice KK Mathew in his concurring opinion observed that while equality under

Article 16 (1) is individual-centric

39

(which was the view of the majority – Justice

Mathew and Justice Beg‘s majority opinions, and Justice Khanna and Justice

Gupta‘s dissents), the manner in which it is to be achieved is through the

39

Ibid, paragraph 52.

PART D

25

identification of groups that do not enjoy equal access to certain rights and

entitlements. The learned judge made the following observations:

―73. There is no reason why this Court should not also require

the State to adopt a standard of proportional equality which

takes account of the differing conditions and circumstances of

a class of citizens whenever those conditions and

circumstances stand in the way of their equal access to the

enjoyment of basic rights or claims.

74. The concept of equality of opportunity in matters of

employment is wide enough to include within it compensatory

measures to put the members of the Scheduled Castes and

scheduled tribes on par with the members of other

communities which would enable them to get their share of

representation in public service. How can any member of the

so-called forward communities complain of a compensatory

measure made by the Government to ensure the members of

Scheduled Castes and scheduled tribes their due share of

representation in public services?

75. It is said that Article 16(4) specifically provides for

reservation of posts in favour of Backward Classes which

according to the decision of this Court would include the

power of the State to make reservation at the stage of

promotion also and therefore Article 16(1) cannot include

within its compass the power to give any adventitious aids by

legislation or otherwise to the Backward Classes which would

derogate from strict numerical equality. If reservation is

necessary either at the initial stage or at the stage of

promotion or at both to ensure for the members of the

Scheduled Castes and scheduled tribes equality of

opportunity in the matter of employment, I see no reason why

that is not permissible under Article 16(1) as that alone might

put them on a parity with the forward communities in the

matter of achieving the result which equality of opportunity

would produce. Whether there is equality of opportunity can

be gauged only by the equality attained in the result. Formal

equality of opportunity simply enables people with more

education and intelligence to capture all the posts and to win

over the less fortunate in education and talent even when the

competition is fair. Equality of result is the test of equality of

opportunity.‖

Thus, the learned judge envisaged that equality of individuals is to be achieved

by addressing the structural barriers faced by certain classes of citizens, which

he called the ―conditions and circumstances [that] stand in the way of their equal

access to the enjoyment of basic rights or claims‖. Justice Krishna Iyer and

Justice Fazal Ali in their concurring opinions went a step further to argue that the

PART D

26

content of Article 16 (1) is not individual-centric rather it aims to provide equality

of opportunity to sections that face structural barriers to their advancement.

Justice Krishna Iyer invoked Article 46 of the Constitution, which although

unenforceable, was employed for giving effect to Article 16 (1). In his opinion both

Articles 16 (1) and 16 (4) function to equalise group inequalities albeit in different

contexts. The learned judge observed thus:

―137. ―reservation‖ based on classification of backward and

forward classes, without detriment to administrative standards

(as this Court has underscored) is but an application of the

principle of equality within a class and grouping based on a

rational differentia, the object being advancement of

backward classes consistently with efficiency. Article 16(1)

and (4) are concordant. This Court has viewed Article 16(4)

as an exception to Article 16(1). Does classification based on

desperate backwardness render Article 16(4) redundant? No.

Reservation confers pro tanto monopoly, but classification

grants under Article 16(1) ordinarily a lesser order of

advantage. The former is more rigid, the latter more flexible,

although they may overlap sometimes. Article 16(4) covers all

backward classes; but to earn the benefit of grouping under

Article 16(1) based on Articles 46 and 335 as I have

explained, the twin considerations of terrible backwardness of

the type harijans endure and maintenance of administrative

efficiency must be satisfied.‖

21 Justice Fazal Ali in his concurring opinion noted that equality of opportunity

under Article 16 (1) entails the removal of barriers faced by certain classes of

society. They cannot be denied the right to equality and relegated to suffer

backwardness only because they do not meet certain artificial standards set up

by institutions. Justice Fazal Ali made the following observations:

―158. It is no doubt true that Article 16(1) provides for equality

of opportunity for all citizens in the services under the State. It

is, however, well-settled that the doctrine contained in Article

16 is a hard and reeling reality, a concrete and constructive

concept and not a rigid rule or an empty formula. It is also

equally well-settled by several authorities of this Court that

Article 16 is merely an incident of Article 14, Article 14 being

the genus is of universal application whereas Article 16 is the

species and seeks to obtain equality of opportunity in the

services under the State. The theory of reasonable

classification is implicit and inherent in the concept of equality

PART D

27

for there can hardly be any country where all the citizens

would be equal in all respects. Equality of opportunity would

naturally mean a fair opportunity not only to one section or the

other but to all sections by removing the handicaps if a

particular section of the society suffers from the same. It has

never been disputed in judicial pronouncements by this Court

as also of the various High Courts that Article 14 permits

reasonable classification. But what Article 14 or Article 16

forbid is hostile discrimination and not reasonable

classification. In other words, the idea of classification is

implicit in the concept of equality because equality means

equality to all and not merely to the advanced and educated

sections of the society. It follows, therefore, that in order to

provide equality of opportunity to all citizens of our country,

every class of citizens must have a sense of equal

participation in building up an egalitarian society, where there

is peace and plenty, where there is complete economic

freedom and there is no pestilence or poverty, no

discrimination and oppression, where there is equal

opportunity to education, to work, to earn their livelihood so

that the goal of social justice is achieved. Could we, while

conferring benefits on the stronger and the more/advanced

sections of the society, ignore the more backward classes

merely because they cannot come up to the fixed standards?

Such a course, in my opinion, would lead to denial of

opportunity to the backward classes resulting in complete

annihilation of the concept of equality contained in Articles 14

and 16. The only manner in which the objective of equality as

contemplated by the founding fathers of our Constitution and

as enshrined in Articles 14 and 16 can be achieved is to

boost up the backward classes by giving them concessions,

relaxations, facilities, removing handicaps, and making

suitable reservations so that the weaker sections of the

people may compete with the more advanced and in due

course of time all may become equals and backwardness is

banished for ever. This can happen only when we achieve

complete economic and social freedom. In our vast country

where we have diverse races and classes of people, some of

whom are drowned in the sea of ignorance and illiteracy, the

concept of equality assumes very important proportions.

There are a number of areas in some States like Kashmir,

Sikkim, hilly areas of U.P., Bihar and the South, where due to

lack of communications or transport, absence of proper

educational facilities or because of old customs and

conventions and other environmental reasons, the people are

both socially and educationally backward. Could we say that

the citizens hailing from these areas should continue to

remain backward merely because they fall short of certain

artificial standards fixed by various institutions? The answer

must be in the negative. The directive principles enshrined in

our Constitution contain a clear mandate to achieve equality

and social justice. Without going into the vexed question as to

whether or not the directive principles contained in Part IV

override the fundamental rights in Part III there appears to be

a complete unanimity of judicial opinion of this Court that the

directive principles and the fundamental rights should be

construed in harmony with each other and every attempt

PART D

28

should be made by the Court, to resolve any apparent

inconsistency. The directive principles contained in Part IV

constitute the stairs to climb the high edifice of a socialistic

State and the fundamental rights are the means through

which one can reach the top of the edifice. I am fortified in my

view by several decisions of this Court to which I will refer

briefly.‖

22 Even if the judges differed on whether Article 16 (1) is individual-centric or

group-centric, they nonetheless accepted that Article 16 (4) is crucial to achieve

substantive equality that is envisaged under Article 16 (1). Articles 16 (4), 15 (4),

and 15 (5) employ group identification as a method through which substantive

equality can be achieved. This may lead to an incongruity where individual

members of an identified group may not be backward or individuals belonging to

the non-identified group may share certain characteristics of backwardness with

members of an identified group. However, this does not change the underlying

rationale of the reservation policy that seeks to remedy the structural barriers that

disadvantaged groups face in advancing in society. Reservation is one of the

measures that is employed to overcome these barriers. The individual difference

may be a result of privilege, fortune, or circumstances but it cannot be used to

negate the role of reservation in remedying the structural disadvantage that

certain groups suffer.

23 The view that special provisions made for a backward class are not an

exception to the principle of equality was re-affirmed by a nine-Judge Bench in

Indira Sawhney v. Union of India

40

. These observations were made in the

context of Articles 16 (1) and 16(4). In Dr Jaishri Laxmanrao Patil v. Chief

Minister

41

, this Court has observed that the principles applied for interpreting

40

1992 Supp (3) SCC 217

41

(2021) 8 SCC 1

PART D

29

Article 16 are also to be used for the interpretation of Article 15. Thus, Articles 15

(4) and Article 15 (5) are nothing but a restatement of the guarantee of the right

to equality stipulated in Article 15 (1).

24 The crux of the above discussion is that the binary of merit and reservation

has now become superfluous once this Court has recognized the principle of

substantive equality as the mandate of Article 14 and as a facet of Articles 15 (1)

and 16(1). An open competitive exam may ensure formal equality where

everyone has an equal opportunity to participate. However, widespread

inequalities in the availability of and access to educational facilities will result in

the deprivation of certain classes of people who would be unable to effectively

compete in such a system. Special provisions (like reservation) enable such

disadvantaged classes to overcome the barriers they face in effectively

competing with forward classes and thus ensuring substantive equality. The

privileges that accrue to forward classes are not limited to having access to

quality schooling and access to tutorials and coaching centres to prepare for a

competitive examination but also includes their social networks and cultural

capital (communication skills, accent, books or academic accomplishments) that

they inherit from their family.

42

The cultural capital ensures that a child is trained

unconsciously by the familial environment to take up higher education or high

posts commensurate with their family‘s standing. This works to the disadvantage

of individuals who are first-generation learners and come from communities

whose traditional occupations do not result in the transmission of necessary skills

required to perform well in open examination. They have to put in surplus effort to

42

K.V Syamprasad, Merit and caste as cultural capital: Justifying affirmative action for the underprivileged in

Kerala, India, Journal for Critical Education Policy Studies, Vol 17, p.50-81 (2019).

PART D

30

compete with their peers from the forward communities.

43

On the other hand,

social networks (based on community linkages) become useful when individuals

seek guidance and advise on how to prepare for examination and advance in

their career even if their immediate family does not have the necessary exposure.

Thus, a combination of family habitus, community linkages and inherited skills

work to the advantage of individuals belonging to certain classes, which is then

classified as ―merit‖ reproducing and reaffirming social hierarchies. In BK

Pavithra v. Union of India

44

, a two-judge Bench of this Court, of which one of us

was a part (Justice DY Chandrachud) had observed how apparently neutral

systems of examination perpetuate social inequalities. This Court observed:

―134. It is well settled that existing inequalities in society can

lead to a seemingly ―neutral‖ system discriminating in favour

of privileged candidates. As Marc Galanter notes, three broad

kinds of resources are necessary to produce the results in

competitive exams that qualify as indicators of ―merit‖. These

are:

―… (a) economic resources (for prior education, training,

materials, freedom from work, etc.); (b) social and cultural

resources (networks of contacts, confidence, guidance and

advice, information, etc.); and (c) intrinsic ability and hard

work…‖ [ Galanter M., Competing Equalities : Law and the

Backward Classes in India, (Oxford University Press, New

Delhi 1984), cited by Deshpande S., Inclusion versus

excellence : Caste and the framing of fair access in Indian

higher education, 40 : 1 South African Review of Sociology

127-147.]

135. The first two criteria are evidently not the products of a

candidate's own efforts but rather the structural conditions

into which they are borne. By the addition of upliftment of SCs

and STs in the moral compass of merit in government

appointments and promotions, the Constitution mitigates the

risk that the lack of the first two criteria will perpetuate the

structural inequalities existing in society.‖

43

Ibid

44

(2019) 16 SCC 129

PART D

31

25 This is not to say that performance in competitive examination or admission

in higher educational institutions does not require a great degree of hard work

and dedication but it is necessary to understand that ―merit‖ is not solely of one‘s

own making. The rhetoric surrounding merit obscures the way in which family,

schooling, fortune and a gift of talents that the society currently values aids in

one‘s advancement.

45

Thus, the exclusionary standard of merit serves to

denigrate the dignity of those who face barriers in their advancement which are

not of their own making. But the idea of merit based on ―scores in an exam‖

requires a deeper scrutiny. While examinations are a necessary and convenient

method of distributing educational opportunities, marks may not always be the

best gauge of individual merit. Even then marks are often used as a proxy for

merit. Individual calibre transcends performance in an examination. Standardized

measures such as examination results are not the most accurate assessment of

the qualitative difference between candidates.

46

Ashwini Deshpande highlights

that there is always a degree of separation between what examinations claim to

measure and what they actually measure. He states:

―…most examinations and tests have an inevitably indexical

character – they claim to measure something more than (or

other than) what is established by the actual tasks they set.

Thus, for example, a candidate aspiring to join civil service

may take an entrance exam where she appears in papers in,

say geology, philosophy and general knowledge. On the

basis of her performance in these papers, the entrance exam

claims to predict her potential ability to be a good civil

servant. There is at best a rather indirect link between good at

writing exam answers in geology, philosophy and general

knowledge and being a good civil servant. This is the sense in

which the exam and the candidate‘s performance in it serves

as an index – an indicator – of something else namely her

potential to be a good civil servant.

45

Michael Sandel, Tyranny of Merit: What‘s become of the Common Good (Penguin Boks)

46

Ashwini Deshpande, Social Justice Through Affirmative Action in India: An Assessment, in Jeannette

Wicks­Lim and Robert Pollin (editors) Capitalism on Trial: Explorations in the Tradition of Thomas Weisskopf,

Publisher: Edward Elgar Publishing Inc. (Northampton, MA), 2013

PART D

32

All examinations are more of less indexical, even those that

have a lot of ‗practical‘ components involving activities that

appear to be very close to what successful candidates will

eventually be doing professionally. All other things being

equal, indexicality tends to weaken diagnostic claims of the

examination. Because of this, the higher the stakes, the

greater the ideological energy that is spent on building up the

prestige and popular deference accorded to the exam. That is

why exams guarding the gateway to a prized profession or

status are steeped in hyperbole and are socially required (so

to speak) to be traumatic bloodbaths. Anything less would not

only undermine the status of the status that they are

guarding, it would also endanger the main social function that

such exams perform, which is to persuade the vast majority of

aspirants to consent to their exclusion.‖

47

At the best, an examination can only reflect the current competence of an

individual but not the gamut of their potential, capabilities or excellence,

48

which

are also shaped by lived experiences, subsequent training and individual

character. The meaning of ―merit‖ itself cannot be reduced to marks even if it is a

convenient way of distributing educational resources. When examinations claim

to be more than systems of resource allocation, they produce a warped system of

ascertaining the worth of individuals as students or professionals. Additionally,

since success in examinations results in the ascription of high social status as a

―meritorious individual‖, they often perpetuate and reinforce the existing ascriptive

identities of certain communities as ―intellectual‖ and ―competent‖ by rendering

invisible the social, cultural and economic advantages that increase the

probabilities of success. Thus, we need to reconceptualize the meaning of

―merit‖. For instance, if a high-scoring candidate does not use their talents to

perform good actions, it would be difficult to call them ―meritorious‖ merely

because they scored high marks. The propriety of actions and dedication to

public service should also be seen as markers of merit, which cannot be

47

Satish Deshpande, Pass, Fail, Distinction: The Examination as a Social Institution. Marjorie Sykes Memorial

Lecture, Regional Institute of Education, Ajmer, 3rd March, 2010. Published by the National Council for

Educational Research and Training, New Delhi.

48

Ibid

PART D

33

assessed in a competitive examination. Equally, fortitude and resilience required

to uplift oneself from conditions of deprivation is reflective of individual calibre.

Such a formulation of merit was emphasised by this Court in Pradeep Jain

(supra), where it observed:

―12. But let us understand what we mean when we say that

selection for admission to medical colleges must be based on

merit. What is merit which must govern the process of

selection? It undoubtedly consists of a high degree of

intelligence coupled with a keen and incisive mind, sound

knowledge of the basic subjects and infinite capacity for hard

work, but that is not enough; it also calls for a sense of social

commitment and dedication to the cause of the poor. We

agree with Krishna Iyer, J., when he says in Jagdish Saran

case [(1980) 2 SCC 768 : AIR 1980 SC 820 : (1980) 2 SCR

831] : (SCC p. 778, para 21)

―If potential for rural service or aptitude for rendering medical

attention among backward people is a criterion of merit —

and it, undoubtedly, is in a land of sickness and misery,

neglect and penury, wails and tears — then, surely, belonging

to a university catering to a deprived region is a plus point of

merit. Excellence is composite and the heart and its

sensitivity are as precious in the scale of educational values

as the head and its creativity and social medicine for the

common people is more relevant than peak performance in

freak cases.‖

Merit cannot be measured in terms of marks alone, but

human sympathies are equally important. The heart is as

much a factor as the head in assessing the social value of a

member of the medical profession. This is also an aspect

which may, to the limited extent possible, be borne in mind

while determining merit for selection of candidates for

admission to medical colleges though concededly it would not

be easy to do so, since it is a factor which is extremely

difficult to judge and not easily susceptible to evaluation.‖

26 However, after contextualising the meaning of merit, in the next paragraph

this Court reverted to equating the selection process adopted for admission to

merit. However, irrespective of the true purport of merit, this Court notes that the

selection process for admission must satisfy the test of equality. This Court

observed thus:

PART D

34

―13. We may now proceed to consider what are the

circumstances in which departure may justifiably be made

from the principle of selection based on merit. Obviously,

such departure can be justified only on equality-oriented

grounds, for whatever be the principle of selection followed

for making admissions to medical colleges, it must satisfy the

test of equality. Now the concept of equality under the

Constitution is a dynamic concept. It takes within its sweep

every process of equalisation and protective discrimination.

Equality must not remain mere idle incantation but it must

become a living reality for the large masses of people. In a

hierarchical society with an indelible feudal stamp and

incurable actual inequality, it is absurd to suggest that

progressive measures to eliminate group disabilities and

promote collective equality are antagonistic to equality on the

ground that every individual is entitled to equality of

opportunity based purely on merit judged by the marks

obtained by him. We cannot countenance such a suggestion,

for to do so would make the equality clause sterile and

perpetuate existing inequalities. Equality of opportunity is not

simply a matter of legal equality. Its existence depends not

merely on the absence of disabilities but on the presence of

abilities. Where, therefore, there is inequality, in fact, legal

equality always tends to accentuate it. What the famous poet

William Blake said graphically is very true, namely, ―One law

for the Lion and the Ox is oppression‖. Those who are

unequal, in fact, cannot be treated by identical standards; that

may be equality in law but it would certainly not

be real equality. It is, therefore, necessary to take into

account de facto inequalities which exist in the society and to

take affirmative action by way of giving preference to the

socially and economically disadvantaged persons or, inflicting

handicaps on those more advantageously placed, in order to

bring about real equality. Such affirmative action though

apparently discriminatory is calculated to produce equality on

a broader basis by eliminating de facto inequalities and

placing the weaker sections of the community on a footing of

equality with the stronger and more powerful sections so that

each member of the community, whatever is his birth,

occupation or social position may enjoy equal opportunity of

using to the full his natural endowments of physique, of

character and of intelligence. We may in this connection

usefully quote what Mathew, J., said in Ahmedabad St.

Xavier's College Society v. State of Gujarat [(1974) 1 SCC

717, 799 : AIR 1974 SC 1389 : (1975) 1 SCR 173] : (SCC p.

799, para 132)

―… it is obvious that ‗equality in law precludes discrimination

of any kind; whereas equality in fact may involve the

necessity of differential treatment in order to attain a result

which establishes an equilibrium between different situations‘

[ The Advisory opinion on Minority Schools in Albania, April 6,

1935 publications of the Court, series A/B No 64, p 19] .‖

We cannot, therefore, have arid equality which does not take

into account the social and economic disabilities and

inequalities from which large masses of people suffer in the

country. Equality in law must produce real equality; de jure

PART D

35

equality must ultimately find its raison d'etre in de facto

equality. The State must, therefore, resort to compensatory

State action for the purpose of making people who are

factually unequal in their wealth, education or social

environment, equal in specified areas. The State must, to use

again the words of Krishna Iyer, J., in Jagdish Saran

case [(1980) 2 SCC 768 : AIR 1980 SC 820 : (1980) 2 SCR

831] (SCC p. 782, para 29) ―weave those special facilities into

the web of equality which, in an equitable setting, provide for

the weak and promote their levelling up so that, in the long

run, the community at large may enjoy a general measure

of real equal opportunity. . . . equality is not negated or

neglected where special provisions are geared to the larger

goal of the disabled getting over their disablement

consistently with the general good and individual merit‖. The

scheme of admission to medical colleges may, therefore,

depart from the principle of selection based on merit, where it

is necessary to do so for the purpose of bringing about real

equality of opportunity between those who are unequals.‖

27 It is important to clarify here that after the decision in NM Thomas (supra)

there is no constitutional basis to subscribe to the binary of merit and reservation.

If open examinations present equality of opportunity to candidates to compete,

reservations ensure that the opportunities are distributed in such a way that

backward classes are equally able to benefit from such opportunities which

typically evade them because of structural barriers. This is the only manner in

which merit can be a democratizing force that equalises inherited disadvantages

and privileges. Otherwise claims of individual merit are nothing but tools of

obscuring inheritances that underlie achievements.

28 If merit is a social good that must be protected, we must first critically

examine the content of merit. As noted above, scores in an exam are not the sole

determinant of excellence or capability. Even if for the sake of argument, it is

assumed that scores do reflect excellence, it is not the only value that is

considered as a social good. We must look at the distributive consequences of

PART D

36

merit. Accordingly, how we assess merit should also encapsulate if it mitigates or

entrenches inequalities. As Amartya Sen argues:

―If, for example, the conceptualization of a good society

includes the absence of serious economic inequalities, then in

the characterization of instrumental goodness, including the

assessment of what counts as merit, note would have to be

taken of the propensity of putative merit to lessen—or

generate—economic inequality. In this case, the rewarding of

merit cannot be done independent of its distributive

consequences.

…..

In most versions of modern meritocracy, however, the

selected objectives tend to be almost exclusively oriented

towards aggregate achievements (without any preference

against inequality), and sometimes the objectives chosen are

even biased (often implicitly) towards the interests of more

fortunate groups (favouring the outcomes that are more

preferred by ―talented‖ and ―successful‖ sections of the

population. This can reinforce and augment the tendency

towards inequality that might be present even with an

objective function that inter alia, attaches some weight to

lower inequality levels‖

49

A similar understanding of merit was advanced by this Court in BK Pavithra

(supra), where this Court held:

―131. Once we understand ―merit as instrumental in

achieving goods that we as a society value, we see that the

equation of ―merit‖ with performance at a few narrowly

defined criteria is incomplete. A meritocratic system is one

that rewards actions that result in the outcomes that we as a

society value.‖

An oppositional paradigm of merit and reservation serves to entrench inequalities

by relegating reserved candidates to the sphere of incompetence, and

diminishing their capabilities. We have already stated that while examinations are

a necessary and convenient method to allocate educational resources, they are

not effective markers of merit. The way we understand merit should not be limited

to individual agency or ability (which in any event is not solely of our own doing)

49

Amartya Sen, ‗Merit and Justice‘ in Arrow KJ, et al (eds), Meritocracy and Economic Inequality (Princeton

University Press 2000).

PART D

37

but it should be envisioned as a social good that advances equality because that

is the value that our Constitution espouses. It is important to note that equality

here does not merely have a redistributive dimension but also includes

recognizing the worth and dignity of every individual. The content of merit cannot

be devoid of what we value in society. Based on the above discussion, we find it

difficult to accept the narrow definition of merit (that is, decontextualised

individual achievement). We believe such a definition hinders the realisation of

substantive equality.

29 Coming to the issue of whether reservation can be permitted in PG courses,

it is evident Article 15 (5) does not make a distinction between UG and PG

courses. Article 15 (5) reads thus:

―(5) Nothing in this article or in sub-clause (g) of clause (1) of

article 19 shall prevent the State from making any special

provision, by law, for the advancement of any socially and

educationally backward classes of citizens or for the

Scheduled Castes or the Scheduled Tribes in so far as such

special provisions relate to their admission to educational

institutions including private educational institutions, whether

aided or unaided by the State, other than the minority

educational institutions referred to in clause (1) of article 30.‖

The Constitution enables the State to make special provisions for the

advancement of socially and educationally backward classes for admission to

educational institutions at both the UG and PG levels. While on certain

occasions, this Court has remarked that there cannot be any reservation in SS

courses, this Court has never held that reservations in medical PG courses are

impermissible. In Pradeep Jain (supra), this Court did not hold that reservation in

PG courses is altogether impermissible. In Dr Preeti Srivastava (supra), this

Court was not concerned with the issue of reservation in PG courses; rather it

PART D

38

was concerned with the question whether it is permissible to prescribe a lower

minimum percentage of qualifying marks for reserved category candidates in

comparison to the general category candidates. In AIIMS Student Union v.

AIIMS

50

, this Court was concerned with the question of reservation based on

institutional preference in PG courses and held that limited preference to students

of the same institution can be given at the PG level. In Saurabh Chaudhri v.

Union of India

51

, a Constitution Bench of this Court observed that reservation in

PG courses to a reasonable extent did not violate the equality clause.

52

Mr Divan

had urged on behalf of the petitioners that for many individuals PG is the end of

the road and therefore, the PG courses should be equated with SS courses and

no reservation should be allowed in PG. We find it difficult to accept this

argument when this Court has time and again permitted reservation in PG

courses. This argument merely seeks to create an artificial distinction between

the courses offered at the PG level. Further, only certain medical fields do not

have SS courses and on the basis of that we cannot deem that reservation is

impermissible in PG as a whole. Crucially, the issue here is whether after

graduation, an individual is entitled to reservation on the ground that they belong

to a class that suffers from social and educational backwardness. In our opinion,

it cannot be said that the impact of backwardness simply disappears because a

candidate has a graduate qualification. Indeed, a graduate qualification may

provide certain social and economic mobility, but that by itself does not create

parity between forward classes and backward classes. In any event, there cannot

be an assertion of over-inclusion where undeserving candidates are said to be

50

2002 (1) SCC 428

51

2003 (11) SCC 146

52

Ibid, paragraph 67.

PART D

39

benefitting from reservation because OBC candidates who fall in the creamy

layer are excluded from taking the benefit of reservation. Thus, we find that there

is no prohibition in introducing reservation for socially and educationally backward

classes (or the OBCs) in PG courses.

D.2 The Court and the AIQ seats

30 In order to address the argument of the petitioners that this Court in

Pradeep Jain (supra) and the subsequent cases has held that there shall be no

reservation in the AIQ seats, it is necessary that we chronologically refer to the

development of the concept of AIQ seats by various cases.

31 In Pradeep Jain (supra), a three-Judge Bench of this Court was deciding

on the constitutional validity of reservation based on domicile and institutional

preference in medical colleges or institutions of higher learning. Referring to

State of U.P v. Pradip Tandon

53

and Nookavarapu Kanakadurga Devi v.

Kakatiya Medical College

54

, where reservation for the people of the hills in

Uttarakhand and Telangana was held to be permissible since they were

backward regions which would fall within the ambit of socially and educationally

backward classes in Article 15(4), it was held that reservation or any other

affirmative action programme based on residence or domicile is not arbitrary and

violative of Article 14. However, it was also observed that it is desirable to admit

students to the MBBS course on an all-India basis, in furtherance of ‗merit‘,

without any classification based on residence. It was observed that however, in

view of the inequality in the society where a few areas within a State, and a few

53

(1975) 2 SCR 761

54

AIR 1972 AP 83

PART D

40

States on comparison to others are backward, admission based on an all-India

examination will lead to inequality:

―19. […]Theoretically, of course, if admissions are given

on the basis of all-India national entrance examination,

each individual would have equal opportunity of securing

admission, but that would not take into account diverse

considerations, such as, differing level of social,

economic and educational development of different

regions, disparity in the number of seats available for

admission to the MBBS course in different States,

difficulties which may be experienced by students from

one region who might in the competition on all-India basis

get admission to the MBBS course in another region far

remote from their own and other allied factors. There can

be no doubt that the policy of ensuring admissions to the

MBBS course on all-India basis is a highly desirable

policy, based as it is on the postulate that India is one

nation and every citizen of India is entitled to have equal

opportunity for education and advancement, but it is an

ideal to be aimed at and it may not be realistically

possible, in the present circumstances, to adopt it, for it

cannot produce real equality of opportunity unless there

is complete absence of disparities and inequalities — a

situation which simply does not exist in the country

today.‖

32 In order to balance between the claims of legal and factual equality, it was

observed that even if the Union Government decides to conduct an all-India

entrance examination for admission to medical courses, a certain percentage of

seats may be reserved for candidates based on residence. Further, it was held

that wholesale reservation of 100 percent based on domicile for admission in

educational institutions is unconstitutional:

―20 […] We agree wholly with these observations made

by the learned Judge and we unreservedly condemn

wholesale reservation made by some of the State

Governments on the basis of ‗domicile‘ or residence

requirement within the State or on the basis of

institutional preference for students who have passed the

qualifying examination held by the university or the State

excluding all students not satisfying this requirement,

regardless of merit. We declare such wholesale

reservation to be unconstitutional and void as being in

violation of Article 14 of the Constitution.‖

PART D

41

33 This Court then determined the quantum of reservation based on

residence and institutional preference. This Court observed that reservation

based on residence in MBBS shall not exceed 70 percent of the total seats

available, after taking into account other reservations validly made. It was also

observed that the Indian Medical Council must consider revising the percentage

of reservation based on the residence criteria every three years. The remaining

30 percent seats were available for admission on an all-India basis irrespective of

the residence of the candidate:

―21. But, then to what extent can reservation based on

residence requirement within the State or on institutional

preference for students passing the qualifying

examination held by the university or the State be

regarded as constitutionally permissible? It is not possible

to provide a categorical answer to this question for, as

pointed out by the policy statement of the Government of

India, the extent of such reservation ―would depend on

several factors including opportunities for professional

education in that particular area, the extent of

competition, level of educational development of the area

and other relevant factors‖. It may be that in a State

where the level of educational development is woefully

low, there are comparatively inadequate opportunities for

training in the medical speciality and there is large scale

social and economic backwardness, there may be

justification for reservation of a higher percentage of

seats in the medical colleges in the State and such

higher percentage may not militate against ―the equality

mandate viewed in the perspective of social justice‖. So

many variables depending on social and economic facts

in the context of educational opportunities would enter

into the determination of the question as to what in the

case of any particular State, should be the limit of

reservation based on residence requirement within the

State or on institutional preference. But, in our opinion,

such reservation should in no event exceed the outer

limit of 70 per cent of the total number of open seats

after taking into account other kinds of reservations

validly made. The Medical Education Review Committee

has suggested that the outer limit should not exceed 75

per cent but we are of the view that it would be fair and

just to fix the outer limit at 70 per cent. We are laying

down this outer limit of reservation in an attempt to

reconcile the apparently conflicting claims of equality and

excellence. We may make it clear that this outer limit

fixed by us will be subject to any reduction or attenuation

which may be made by the Indian Medical Council which

PART D

42

is the statutory body of medical practitioners whose

functional obligations include setting standards for

medical education and providing for its regulation and

coordination. We are of the opinion that this outer limit

fixed by us must gradually over the years be

progressively reduced but that is a task which would have

to be performed by the Indian Medical Council. We would

direct the Indian Medical Council to consider within a

period of nine months from today whether the outer limit

of 70 per cent fixed by us needs to be reduced and if the

Indian Medical Council determines a shorter outer limit, it

will be binding on the States and the Union Territories.

We would also direct the Indian Medical Council to

subject the outer limit so fixed to reconsideration at the

end of every three years but in no event should the outer

limit exceed 70 per cent fixed by us. The result is that in

any event at least 30 per cent of the open seats shall

be available for admission of students on all-India

basis irrespective of the State or university from

which they come and such admissions shall be

granted purely on merit on the basis of either all-

India entrance examination or entrance examination

to be held by the State. Of course, we need not add that

even where reservation on the basis of residence

requirement or institutional preference is made in

accordance with the directions given in this judgment,

admissions from the source or sources indicated by such

reservation shall be based only on merit, because the

object must be to select the best and most meritorious

students from within such source or sources.‖

(emphasis supplied)

34 This Court then distinguished admission to the MBBS course (at the UG

level) and the MD course (at the PG level). It observed that at the PG level, merit

cannot be compromised since compromising the standard of medical facilities

would be detrimental to national interest. The Court referred to the submissions

of the Medical Education Review Committee according to which:

―22. […] all admissions to the post-graduate courses in

any institution should be open to candidates on an all-

India basis and there should be no restriction regarding

domicile in the State/Union territory in which the

institution is located‖.

The policy statement filed by the Government of India was as follows:

―22. […] So far as admission to the institutions of post-

graduate colleges and special professional colleges is

concerned, it should be entirely on the basis of all-India

merit subject to constitutional reservations in favour of

Scheduled Castes and Scheduled Tribes.‖

PART D

43

35 Consequently, it was held that it would be desirable to not provide

reservation based on residence in PG medical courses, though there shall be a

maximum of 50 percent reservation based on institutional preference. Therefore,

a doctor who has passed the MBBS course from a certain college may be given

preference in the same college for admission to PG course. It was observed:

―22. [..] We are therefore of the view that so far as

admissions to post-graduate courses, such as MS, MD

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 per cent of the total number

of open seats available for admission to the post-

graduate course.‖

(emphasis supplied)

The observations were to guide both medical and dental courses in State-run

institutions.

36 The Bench in Pradeep Jain (supra) clarified its decision in Dinesh Kumar

(I) (supra). It was observed by the Bench that the admission to the AIQ quota

seats (30 percent in UG and 50 percent in PG) shall only be through a uniform

all-India examination. The suggestion of the Union Government that the

admission to the AIQ seats in UG and PG medical courses could be made

through marks received in the individual qualifying examinations was rejected

observing:

PART D

44

―It would be wholly unjust to grant admissions to students

assessing their relative merits with reference to the marks

obtained by them, not at the same qualifying examination

where standard of judging would be reasonably uniform

but at different qualifying examinations held by different

State Government or Universities where the standard of

judging would necessarily vary and not be the same. That

would be blatantly violative of the concept of equality

enshrined in Article 14 of the Constitution.‖

Further, the Bench also clarified the demarcation of seats for the AIQ. It was

observed that 30 percent of the total number of seats were not demarcated for

AIQ. Rather, after deducting the seats filled by reservation, 30 percent of the

remaining seats are reserved for AIQ. As an example, if there are 100 seats

available, of which 30 percent of the seats are reserved for SC and ST (that is 30

seats), 30 percent of the remaining seats (that is 21 of the remaining 70 seats)

must be filled by the AIQ. It was observed:

―5. We would also like to clear up one misunderstanding

which seems to prevail with some State Governments

and universities in regard to the true import of our

Judgment dated June 22, 1984. They have

misinterpreted our Judgment to mean that 30% of

the total number of seats available for admission to

MBBS course in a medical college should be kept free

from reservation on the basis of residence requirement or

institutional preference. That is a total misreading of our

Judgment. What we have said in our Judgment is that

after providing for reservation validly made, whatever

seats remain available for non-reserved categories, 30%

of such seats at the least, should be left free for open

competition and admission to such 30% open seats

should not be based on residence requirement or

institutional preference but students from all over the

country should be able to compete for admissions to such

30% open seats. To take an example, suppose there are

100 seats in a radical college or university and 30% of

the seats are validly reserved for candidates belonging to

Scheduled Castes and Scheduled Tribes. That would

leave 70 seats available for others belonging to non-

reserved categories. According to our Judgment, 30% of

70 seats, that is, 21 seats out of 70 and not 30% of the

total number of 100 seats, namely, 30 seats, must be

filled up by open competition regardless of residence

requirement or institutional preference.‖

PART D

45

37 Pursuant to the directions given by the Bench in Dinesh Kumar (I) (supra),

the Medical Council of India formulated a scheme for holding an all- India medical

entrance examination for admission to the AIQ seats in UG and PG. However,

difficulties arose in the implementation of the scheme. This Court thought it

necessary to iron out the creases and by an order dated 16 September 1985,

directed the Government of India, in the Ministry of Health to convene a meeting

of the Deans of Medical colleges, representatives of the Medical Council of India

and Dental Council of India. A revised scheme was formulated and submitted to

this Court for approval. Various State Governments raised objections to the

revised scheme before a two-Judge Bench in Dinesh Kumar (II) v. Motilal

Nehru Medical College

55

. The State of Tamil Nadu submitted that since the total

percentage of reservation varies in different States, if the AIQ seats are

calculated after deducting the seats in which reservations are validly made, the

total AIQ seats in a medical college in the State would be inversely proportional

to the percentage of reservation in the State. This Court addressed this

submission and observed that it would then be open to the State Governments to

reduce the number of seats available in the AIQ by increasing the percentage of

reservation in the State. Therefore, this Court altered the formula for seat matrix

adopted in Pradeep Jain (supra) and clarified in Dinesh Kumar (I) (supra). This

Court held that for UG, 15 percent of the total seats in each medical college or

institution shall be demarcated for AIQ (as per the revised scheme of the Central

Government), without taking into account any reservation validly made. For PG, it

55

1986 (3) SCC 727

PART D

46

was held that 25 percent of the total seats would be reserved for the AIQ, without

taking into account reservation validly made. It was observed:

―5. […] There can be no doubt that if in each State, 30

per cent of the seats were to be made available for

admission on the basis of All-India Entrance Examination

after taking into account reservations validly made, the

number of seats which would be available for admission

on the basis of All-India Entrance Examination would vary

inversely with the percentage of reservations validly

made in that State. If the percentage of reservations is

high as in the State of Tamil Nadu or the State of

Karnataka, the number of seats available for admission

on the basis of All-India Entrance Examination would be

relatively less than what would be in a State where the

percentage of reservations is low. There would thus be

total inequality in the matter of making available seats for

admission on the basis of All-India Entrance Examination.

It would be open to a State Government to reduce the

number of seats available for admission on the basis of

All-India Entrance Examination by increasing the number

of reserved categories or by increasing the percentage of

reservations. We therefore agree with the Government of

India that the formula adopted by us in our main

judgment dated June 22, 1984 [Dr Pradeep Jain v. Union

of India, (1984) 3 SCC 654] for determining the number

of seats which should be made available for admission

on the basis of All-India Entrance Examination should be

changed. We would direct, in accordance with the

suggestion made in the Scheme by the Government of

India, that not less than 15 per cent of the total number of

seats in each medical college or institution, without

taking into account any reservations validly made,

shall be filled on the basis of All-India Entrance

Examination. This new formula is in our opinion fair and

just and brings about real equality of opportunity in

admissions to the MBBS/BDS course without placing the

students in one State in an advantageous or

disadvantageous position as compared to the students in

another State. The same formula must apply also in

regard to admissions to the postgraduate courses and

instead of making available for admission on all-India

basis 50 per cent of the open seats after taking into

account reservations validly made, we would direct that

not less than 25 per cent of the total number of seats

without taking into account any reservations, shall be

made available for being filled on the basis of All-India

Entrance Examination. This suggestion of the

Government of India deserves to be accepted and the

objection to it must be overruled.‖

(emphasis supplied)

As opposed to the clarification issued in Dinesh Kumar (I) (supra), where

reservation based on residence was against the total seats available after

PART D

47

reservation made for backward classes under Article 15, Dinesh Kumar (II)

applies reservation based on residence against the total number of seats

available without excluding the reserved seats.

38 In Rajeshwaran (supra), the respondent filed a writ petition before the

Madras High Court seeking a direction to the Union of India to provide

reservation for the SC and ST categories in the AIQ seats set aside for MBBS

and BDS courses. The Madras High Court prima facie observed that there was

no specific order by this Court not to apply reservation as under Article 15 in the

AIQ seats. It was further observed that the AIQ seats were demarcated only to

overcome reservation based on residence. The Madras High Court allowed the

writ petition directing the Central Government to provide 15 percent reservation

for SC and ST in the AIQ seats. The Union of India filed an appeal against the

order of the Madras High Court. This Court in appeal referring to the judgment in

Dinesh Kumar (II) (supra) observed that since this Court has settled the scheme,

it would not be appropriate to determine if the candidates of SC and ST

categories are entitled to reservation in the AIQ seats since: (i) each State will

have different categories of SC and ST, and the Central list would also vary

making it difficult to adjust seats; and (ii) States anyway provide reservation for

SC and ST categories in the 85 percent seats demarcated for them. It was

observed:

―7. In respect of undergraduate course, the scheme

works out like this. If a State has a total of 100 seats and

in that State 15% of the seats are reserved for Scheduled

Castes and 10% for Scheduled Tribes, the State will fill

up 15% seats for Scheduled Caste candidates and 10%

for Scheduled Tribe candidates, of the remaining 75

seats 60 seats will be filled by the State Government as

unreserved and 15 seats will be earmarked for the all-

India quota.

PART D

48

8. Inasmuch as 15% all-India quota has been earmarked

under the scheme framed by this Court and that scheme

itself provides the manner in which the same should be

worked out, we do not think, it would be appropriate to

travel outside the said provisions to find out whether a

person in the position of the petitioner would be entitled

to plead in the manner sought for because each of the

States could also provide for reservation for the

Scheduled Caste and Scheduled Tribe category in

respect of 85% of the seats available with them. If we

meddle with this quota fixed, we are likely to land in

innumerable and insurmountable difficulties. Each State

will have different categories of Scheduled Castes and

Scheduled Tribes and the Central Government may have

a different category and hence adjustment of seats would

become difficult. The direction fixing 15% quota for all-

India basis takes note of reservations and hence the High

Court need not have made any further directions.‖

39 A Constitution Bench of this Court in Saurabh Chaudri (supra), decided

on the constitutional validity of reservation based on domicile and institutional

preference in admission to PG courses in Government-run medical colleges.

This Court held that there was no reason to depart from the ratio laid down in

Pradeep Jain (supra) that reservation based on institutional preference and

residence in PG courses is constitutionally valid. The ratio of Pradeep Jain

(supra) was referred to and the Court observed:

― 70. We, therefore, do not find any reason to depart from

the ratio laid down by this Court in Dr Pradeep Jain. The

logical corollary of our finding is that reservation by way

of institutional preference must be held to be not

offending Article 14 of the Constitution of India.‖

The Constitution Bench also increased the total percent of AIQ seats from 25

percent (as held in Dinesh (II) (supra)) to 50 percent of the seats reasoning that

the situation has improved to a great extent and that the country has produced

numerous PG doctors with the passage of time.

PART D

49

40 In Buddhi Prakash Sharma v. Union of India

56

, the writ petitioners

challenged the communication issued by the Directorate General of Health

Services

57

on 7 December 2004 directing the States to provide information on the

total number of PG medical seats under the 50 percent AIQ seats after excluding

the seats reserved for SC and ST categories. By an order dated 21 February

2005, this Court directed the States to provide the total number of seats in PG

medical courses, without any exclusion. This Court observed that the DGHS was

not permitted to change the basis of the seat distribution by identifying the AIQ

seats after applying reservation for the SC and ST categories. This Court

observed that the total seats in AIQ would be 50 percent of the total number of

available seats, without any exclusion. It was observed:

―3. […] It is not in dispute that till 2004-2005 when all-

India quota of seats was 25%, the number of

postgraduate seats was worked out on the basis of total

seats without any exclusion. It is because of the letter

dated 7-12-2004 requiring the information about 50% of

all-India quota after excluding the reserved seats that this

mess has been created. None permitted DGHS to

change the basis this year. The result of

communication is that in many States the total number of

postgraduate seats has gone down than what it was

when the all-India percentage was 25% instead of it

being almost double since the direction of this Court was

that from this academic year it would be 50%.

4. From the material placed before us, it is evident that

some of the States have not furnished the requisite

information to DGHS. We direct that the total number

of postgraduate seats on all-India basis would be

50% of the total number of seats without any

exclusion and the calculation of seats would be done

on the same basis which was adopted when all-India

quota was 25%. The Chief Secretaries of States/Union

Territories, who have not supplied the requisite

information to DGHS on this basis, are directed to supply

the same latest by 5.00 p.m. on 1-3-2005 and file a

compliance affidavit in this Court. Failure to supply the

information would be seriously viewed as a violation of

this Court's direction by the Chief Secretaries concerned.

The counselling will commence on the dates already

56

(2005) 13 SCC 61

57

―DGHS‖

PART D

50

announced as we have no doubt that entire information

about availability of the seats would be furnished by all

concerned to DGHS.‖

(emphasis supplied)

41 In Jayakumar (supra), an appeal was filed before this Court against the

judgment of the Madras High Court in a Public Interest Litigation

58

seeking

reservation for SC and ST candidates in the 15 percent AIQ seats in the UG

medical course. The Madras HC disposed of the PIL observing that reservation

was a constitutional mandate and that the Government could implement

reservation in the AIQ seats in the future. This Court allowed the appeal in terms

of the decision in Rajeshwaran (supra) where it was held that there shall be no

reservation for the AIQ seats. It observed:

―6. In our considered opinion, the question has been

directly considered in the decision of this Court in R.

Rajeshwaran, referred to supra, and it has been indicated

as to how incongruous it would be, if the provisions of

reservation be made applicable to the seats meant for

being filled up on the basis of all-India entrance

examination. Following the judgment of this Court in R.

Rajeshwaran as well as in Dr. Dinesh Kumar we hold that

the High Court was wholly in error in observing that the

requirement of reservation should also apply to the seats

to be filled up on the basis of all-India entrance

examination.‖

42 In Abhay Nath (supra) the Union of India sought clarification of the order

passed in Buddhi Prakash Sharma (supra) wherein it was held that the 50

percent seats for AIQ seats shall exclude reservation. A three-judge Bench

reviewed the order and held that there may be reservation for the SC and ST

students in the AIQ. The order of this Court was as follows:

―1. This Court in Pradeep Jain (Dr.) v. Union of

India [(1984) 3 SCC 654] directed that out of the

postgraduate seats to be filled up by the various colleges

in India, 50% of the seats shall be admitted on the basis

58

“PIL”

PART D

51

of All-India Entrance Examination. It was directed that out

of the total number of seats, 50% of the open seats shall

be filled up by All-India Entrance Examination.

2. Thereafter in Dinesh Kumar (Dr.) v. Motilal Nehru

Medical College [(1985) 3 SCC 22] , it was explained:

(SCC p. 28, para 5)

―5. … That is a total misreading of our judgment.

What we have said in our judgment is that after providing

for reservation validly made, whatever seats remain

available for non-reserved categories, 30% of such seats

at the least, should be left free for open competition and

admission to such 30% open seats should not be based

on residence requirement or institutional preference but

students from all over the country should be able to

compete for admissions to such 30% open seats. To take

an example, suppose there are 100 seats in a medical

college or university and 30% of the seats are validly

reserved for candidates belonging to Scheduled Castes

and Scheduled Tribes. That would leave 70 seats

available for others belonging to non-reserved categories.

According to our judgment, 30% of 70% seats, that is, 21

seats out of 70 and not 30% of the total number of 100

seats, namely, 30 seats, must be filled up by open

competition regardless of residence requirement or

institutional preference.‖

3. And in Dinesh Kumar (Dr.) (II) v. Motilal Nehru

Medical College [(1986) 3 SCC 727] , it was clarified:

(SCC p. 733, para 5)

―5. … that not less than 25 per cent of the total

number of seats without taking into account any

reservations, shall be made available for being filled on

the basis of All-India Entrance Examination. This

suggestion of the Government of India deserves to be

accepted and the objection to it must be overruled.‖

4. In Saurabh Chaudri v. Union of India [(2003) 11

SCC 146] the percentage of seats to All-India Entrance

Examination was increased to 50%.

5. Another writ petition was filed in this Court

in Buddhi Prakash Sharma v. Union of India [(2005) 13

SCC 61] . In this writ petition an order was passed by this

Court on 28-2-2005 [(2005) 13 SCC 61] wherein it was

stated that the total number of postgraduate seats on all-

India basis would be worked out on the basis of 50% of

the total number of seats without any exclusion. The

order indicated that out of 50% that are allocated are to

be admitted by All-India Entrance Examination and it was

made clear that there shall not be any seats excluded on

reservation.

6. 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 DGHS

to have the 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

PART D

52

India has decided to provide 22.5% reservation for SC/ST

candidates in all-India quota from the academic year

2007-2008 onwards.

7. The Union of India seeks clarification of the order

passed in Buddhi Prakash Sharma v. Union of

India [(2005) 13 SCC 61] passed on 28-2-2005, 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 28-2-2005 [(2005) 13 SCC 61] is

clarified.

(emphasis supplied)

43 In Gulshan Prakash v. State of Haryana

59

, a writ petition was filed

seeking to quash the prospectus issued by Maharishi Dayanand University,

Rohtak, Haryana for the academic session 2007-2008 to the extent that it did not

provide any reservation of seats for SC and ST candidates. One of the

contentions raised by the petitioners was that this Court in Abhay Nath (supra)

had directed that reservation for SC and ST candidates be provided in PG

medical courses. However, the three-Judge Bench in Gulshan Prakash (supra)

clarified that the directions in Abhay Nath (supra) would be applicable only to

AIQ seats and would have no bearing on admissions in the State quota for the

PG course. It was further clarified that if the State of Haryana has decided to not

provide reservation in PG medical courses for seats in the State Quota, this Court

cannot direct the State to provide such reservation. It was observed:

―29. Inasmuch as the Government of Haryana has not

prescribed any reservation for the postgraduate courses,

neither the University nor any other authority can be

blamed for approving and publishing the prospectus which

does not contain reservation for postgraduate courses. The

clarificatory order of this Court in Abhay Nath [(2009) 17

SCC 705] 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.

59

(2010) 1 SCC 477

PART D

53

As the State Government is competent to make the

reservation to a particular class or 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

undergraduate medical courses is being provided strictly as

per their policy. The postgraduate degree/diploma in

medical education is governed by the 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 postgraduate level.‖

44 Having traced the evolution of the AIQ in UG and PG medical and dental

courses, we answer the following questions: (i) whether this Court in Pradeep

Jain (supra) held that the AIQ seats that were to be filled by an open all- India

examination should be free of reservation for the socially and educationally

backward classes, and SC and ST as enabled by Article 15(4); and (ii) whether

reservation in the AIQ can be provided only pursuant to a direction of this Court.

45 This Court in Pradeep Jain (supra) was deciding on the constitutional

validity of reservation based on domicile/residence. Having held that residence-

based reservation is constitutionally valid, the next question that this Court was

tasked with was adjudicating the quantum of residence-based reservation that

could be permitted. Referring to the decision of this Court in Jagdish Saran v.

Union of India

60

, it was held that there cannot be wholesale reservation (that is,

100 percent reservation). It was observed that a certain percentage of seats must

be filled by open merit by an all-India examination without reservation based on

residence. The Medical Education Review Committee had suggested that 75

percent of the seats in a medical college shall be reserved for residents of the

State. This Court decided that it would be fair to reserve 70 percent of the seats

60

1980 AIR 820

PART D

54

for residents of the State. Therefore, 30 percent of the seats were to be filled

through an all-India Examination. This would mean that candidates from all

across the country could compete against the 30 percent seats available in State-

run medical colleges. In this context, this Court had observed, ―such reservation

should in no event exceed the outer limit of 70 per cent of the total number of

open seats after taking into account other kinds of reservations validly made‖

(paragraph 21). The Bench further observed that ―at least 30 percent of the open

seats shall be available for admission of students on all-India basis irrespective of

the State or University from which they come and such admissions shall be

granted purely on merit on the basis of either all-India entrance examination or

entrance examination to be held by the State‖ (paragraph 21). The observation

of this Court that AIQ seats must be filled purely on the basis of merit, cannot be

interpreted to mean that there shall be no reservations in the AIQ seats. As noted

in Section D.1 of this judgement, merit must be socially contextualised and

reconceptualized according to its distributive consequences where it furthers

substantive equality in terms of Articles 15 (4) and 15 (5) of the Constitution. The

reference to merit in paragraph 21 of the judgment must be read with the

previous observations made in the judgment. Identifying the issue before this

Court, Justice PN Bhagwati writing for a three-judge Bench formulated the

following question:

―1. […] The question is, whether, consistently with the

constitutional values, admissions to a medical college or

any other institution of higher learning situate in a State

can be confined to those who have their ―domicile‖ within

the State or who are resident within the State for a

specified number of years or can any reservation in

admissions be made for them so as to give them

precedence over those who do not possess ―domicile‖ or

PART D

55

residential qualification within the State, irrespective of

merit.”

(emphasis supplied)

46 While discussing the constitutional validity of domicile-reservation, it was

observed that selection of candidates for admission based on the all-India open

examination would further merit since it would permit the selection of the ‗best

minds in the country‘. In this context, it was observed that claims that would

weigh with this Court in justifying the departure from the principle of merit-based

selection are: (i) claim of State interest, where the students by view of their

residence are expected to settle down and serve their State; and (ii) the regions‘

claim of backwardness (paragraph 16). Further, it was observed that though

theoretically, admissions in medical colleges should be based on an all-India

examination since it would further merit and would provide equality of opportunity

to candidates across the country, keeping in view the differing levels of social,

economic, and educational development in different areas, factual equality would

not be attained. Therefore, the observation in paragraph 21 of the judgment that

the AIQ seats shall be filed through an all-India examination purely on merit, must

be interpreted only with reference to the discussion made on residence-based

reservation and the necessity of an all-India examination for admission to medical

and dental courses. References to ‗merit‘ must therefore be read in the context of

merit vis-à-vis residence reservation. This is further evident from the observation

in paragraph 21 of the judgment where it was observed that ―atleast 30 per cent

of the open seats shall be available for admission of students on all-India basis

irrespective of the State or university from which they come and such admissions

shall be granted purely on merit on the basis of either all-India entrance

PART D

56

examination or entrance examination to be held by the State’. The Bench thought

it fit that admission through an all-India entrance examination would further merit,

enabling the best minds all over the country to study medicine. The observations

of the Bench extracted below also aid the interpretation that we have arrived at:

―10. The philosophy and pragmatism of universal

excellence through equality of opportunity for education

and advancement across the nation is part of our founding

faith and constitutional creed. The effort must, therefore,

always be to select the best and most meritorious students

for admission to technical institutions and medical colleges

by providing equal opportunity to all citizens in the country

and no citizen can legitimately, without serious detriment to

the unity and integrity of the nation, be regarded as an

outsider in our constitutional set-up. Moreover, it would be

against national interest to admit in medical colleges or

other institutions giving instruction in specialities, less

meritorious students when more meritorious students are

available, simply because the former are permanent

residents or residents for a certain number of years in the

State while the latter are not, though both categories are

citizens of India. Exclusion of more meritorious students on

the ground that they are not resident within the State would

be likely to promote substandard candidates and bring

about fall in medical competence, injurious in the long run

to the very region. ―It is no blessing to inflict quacks and

medical midgets on people by wholesale sacrifice of talent

at the threshold. Nor can the very best be rejected from

admission because that will be a national loss and the

interests of no region can be higher than those of the

nation.‖ The primary consideration in selection of

candidates for admission to the medical colleges must,

therefore, be merit. The object of any rules which may be

made for regulating admissions to the medical colleges

must be to secure the best and most meritorious students.‖

47 This aspect was further clarified by the Bench in Dinesh Kumar (I) where

this Court observed that the Union Government and the Medical Council for India

had not taken any initiative to conduct an all-India entrance examination for

admissions to the AIQ seats. The suggestion that admission to the AIQ could be

made based on the marks obtained in the qualifying examination held by different

States or/and Universities was rejected on the ground that the standard of

assessment would not be uniform. It is thus evident that the intention of this

PART D

57

Court in Pradeep Jain (supra) in creating an AIQ was solely to provide

candidates from across the country the opportunity to study medicine in colleges

in other parts of the country as well, owing to the unequal number of medical

colleges (and opportunities) in different States.

48 Reference was made to reservation of backward classes only for the limited

purpose of determining the seat matrix. The observation in paragraph 21 in

Pradeep Jain (supra) on the calculation of seat matrix was clarified in Dinesh

Kumar (I) (supra). The Bench had clarified that after reservations (for the SC, ST

and OBC provided by the States) validly made, 30 percent of the remaining seats

would be reserved for AIQ. The graphical representation of the demarcation is as

under:

Reserved category Remaining seats (open category)

(Figure 1)

(Figure 1)

49 Therefore, according to the clarification in Dinesh Kumar(I) (supra) on the

demarcation of seats, the first bifurcation should be between reserved and non-

reserved seats, and the seats remaining in the open category must be bifurcated

into State Quota and AIQ. It was thus, a three-fold vertical reservation, with the

reserved category not being considered within either the AIQ or the State Quota.

The logical fallacy of this method of demarcation of seats is that different States

provide varying percentages of reservation. Therefore, the total percentage of

unreserved seats would inversely depend on the percentage of reservation

provided by the State. The State of Tamil Nadu raised this objection in Dinesh

SC/ST AIQ State Quota

PART D

58

Kumar (II) (supra). Pursuant to this, it was held that the AIQ seats shall be

determined without excluding any reservation validly made. The seats were first

bifurcated to State quota and AIQ, and the vertical and horizontal reservations

(for example, for persons with disabilities) were accommodated within the State

quota. The revised seat matrix is graphically represented below:

State Quota AIQ

(Figure 2)

50 When the judgment in Dinesh Kumar (II) (supra) was pronounced, the

Union Government had not yet made any decision on providing reservation in

AIQ seats. It was subsequently in 2009 that the Union Government had taken a

policy decision to provide reservation for the SC and ST categories in the AIQ. It

is important to note that in Jayakumar (supra) and Rajeshwaran (supra), the

petitioners had sought a direction from this Court for providing reservation in the

AIQ seats. In Rajeshwaran (supra), this Court declined to ascertain if a person

would be entitled to reservation in the AIQ seats. It was observed that if

reservations for SC and ST categories is to be provided in the AIQ seats, it would

cause difficulty in adjusting seats since the State and the Central lists would

differ. However, when the Union Government submitted before this Court in

Abhay Nath (supra) that it had taken the decision to reserve seats in the AIQ, it

was clarified that there was no impediment against the implementation of such

reservation.

SC ST OBC General Category

PART D

59

51 In Buddhi Prakash Sharma (supra), there was a slight deviation from the

settled jurisprudence. This Court had held that the total number of PG seats in

AIQ would be 50 percent of the total seats without any exclusion for reservation.

The Bench had interpreted the observation in Dinesh Kumar(II) (supra) that the

AIQ seats would be determined without excluding reservations (as depicted by

figure 1) to mean that there would be no reservation in the AIQ. Therefore, since,

Pradeep Jain (supra) did not preclude the AIQ seats from reservation, a three-

Judge Bench in Abhay Nath (supra) clarified that the 50 percent AIQ seats in PG

medical and dental seats would be inclusive of reservation for SC and ST

categories.

D.3 The Executive’s power to introduce reservation in AIQ seats

52 We next address the argument of the petitioners that the Union

Government should have filed an application before this Court before notifying

reservations in the AIQ since the AIQ scheme is a creation of this Court. We are

unable to agree to this argument. The Union Government in Abhay Nath (supra)

had made a submission to this Court of its intention to provide reservations in the

AIQ for the SC and ST candidates since until then in view of the confusion on

demarcation of the seat matrix, there was no clarity on whether reservations

could be provided in the AIQ. This Court in Abhay Nath (supra) clarified that

reservations are permissible in the AIQ seats. Therefore, the order in Abhay

Nath (supra) was only clarificatory in view of the earlier observations in Buddhi

Prakash Sharma (supra). Interpreting the order to mean that the Union of India

sought the permission of this Court before providing reservation would amount to

aiding an interpretation that would foster judicial overreach. Therefore, the

PART D

60

argument that the Union Government should have approached this Court before

notifying the reservations for the OBC and EWS categories in the AIQ seats is

erroneous.

53 In Abhay Nath (supra), the Union Government had apprised this Court of

its decision to provide reservation for the SC and ST categories in the AIQ. It had

then, as a policy decision decided to only provide reservation for the SC and ST

categories. The Parliament enacted the Central Educational Institutions

(Reservation in Admission) Act 2006 in view of the enabling provision in Article

15(5). Section 3 stipulates that there shall be 15 percent reservation for the SC,

7.5 percent reservation for the ST, and 27 percent reservation for the OBC

category in Central Educational Institutions. A Constitution Bench in Ashoka

Kumar Thakur v. Union of India

61

upheld the Constitutional validity of 27

percent reservation for the OBC category provided under the Act of 2006.

Though the Act of 2006 would not be applicable to the seats earmarked for AIQ

in State-run institutions since it would not fall within the definition of a Central

educational institution under the Act, the Union of India in view of Article 15(5)

has the power to provide reservations for OBCs in the AIQ seats. It is not tenable

for the States to provide reservation in the AIQ seats since these seats have

been ‗surrendered‘ to the Centre. It would also lead to the anomaly highlighted in

Dinesh Kumar (II) (supra) since the percentage of reservation provided by

different States differ, which would lead to an unequal percentage of seats

available in the AIQ in different States. This is also coupled with the fact that the

61

(2008) 6 SCC 1

PART D

61

SC, ST and OBC lists are not uniform across States. Thus, it is the Union

Government‘s prerogative to introduce reservation in AIQ seats.

D.4 Changing the Rules of the Game

54 The impugned notice providing reservation for OBC and EWS categories

in the AIQ was issued on 29 July 2021, after the registration for the examination

had closed on 18 April 2021. It is the contention of the petitioners that the rules of

the examination could have only been changed before the last date for

registration. The petitioners argue that the candidates registered for the exam

having a particular seat matrix in mind and that the change in the seat matrix

after registration would be arbitrary. However, the Union Government has argued

that Clause 11 in the Information Bulletin released by the National Board of

Examinations during the registration process provided that information regarding

seat matrix would be separately released by the counselling authority. Clause 11

reads as follows:

―11.1. Reservation of PG seats shall be as per the norms

of the Government of India and respective State

Governments as may be applicable.

11.2. A separate handbook informing details of the

counselling process and applicable reservation shall be

released by the designated counselling authority for

NEET-PG 2021.‖

It is evident from a reading of clause 11.2 that applicants are informed of the seat

matrix (that is, the applicable reservation) only when a separate handbook is

released by the counselling authority. The candidates would possess no

knowledge of the seat matrix at the time of registration.

PART D

62

55 In Manjusree v. State of AP

62

, the selection of candidates to ten vacant

posts of District and Session Judges (Grade II) in the Andhra Pradesh State

Higher Judicial Service was the subject-matter of the appeal. The selection and

appointments to the post of District & Session Judges (Grade II) are governed by

the Andhra Pradesh State Higher Judicial Service Rules 1958. The rules

prescribe that one-third of the posts are to be filled by direct recruitment.

However, the method of recruitment is not prescribed in the Rules. Therefore, the

High Court determines the method of selection when the vacancies are notified.

An advertisement was issued on 28 May 2004 calling for applications. The

Administrative Committee by its resolution dated 30 November 2004 decided to

conduct a written examination for seventy-five marks and an interview for twenty-

five marks, and prescribed minimum category marks for the written examination.

The exam was held on 30 January 2005. The results were declared on 24

February 2005. The merit list was prepared by aggregating the marks obtained in

the written examination out of 100 and the interview for 25 marks. However, the

Full Court did not agree with the selection list and another committee of judges

was constituted to prepare the list. The committee was of the view that the select

list changed the proportion of marks of the written exam to the interview from 3:1

to 4:1 since the written exam marks (out of 100) were not converted to 75 marks.

The sub-committee also directed that there must be minimum marks for the

interview component, in the same cut-off percentage as applied to the written test

component. Another selection list was prepared based on the revised selection

criteria. Candidates whose names were featured in the first select list but were

62

(2008) 3 SCC 512

PART D

63

absent in the second list, challenged the second selection list. A three-judge

Bench of this Court held that the scaling down of marks in the written exam in

proportion to the maximum of 75 marks was valid since it was in consonance with

the resolution dated 30 November 2004. However, it was observed that

introducing minimum marks in the interview component ‗after the entire selection

process (consisting of written examination and interview) was completed, would

amount to changing the rules of the game after the game was played which is

clearly impermissible.’ The facts of the case in Manjusree (supra) differ from the

factual matrix before us since the impugned notice notifying reservation in the

AIQ was introduced even before the examination was held. Further, unlike the

case before us, there was in that case, a change in the selection criteria.

56 In Maharashtra State Road Transport Corporation v. Rajendra

Bhimrao Mandve

63

, the selection to the post of drivers and conductors was in

question. The writ petitioners satisfied the qualifications and possessed the

requisite experience. A total of 12.5 percent marks was initially allotted to the

personal interview component. However, a change in the criteria for selection

was introduced after the driving test was conducted. This Court then held the new

criteria was invalid since it proposed to change the rules of the game after the

game had begun. In Umrao Singh v. Punjabi University

64

, this Court held that

the selection norms for selection to the posts of lecturers could not have been

relaxed after the last date for making the application and after the process for

selection had started. In Tej Prakash Pathak v. Rajasthan High Court

65

, the

63

(2011) 10 SCC 51

64

(2005) 13 SCC 365

65

(2013) 4 SCC 540

PART D

64

Rajasthan High Court had called applications for the post of ‗translators‘.

According to the Rajasthan High Court Staff Service Rules 2002, 100 marks was

prescribed for the written exam and 50 marks for the personal interview. After the

exam was conducted, 75 percent marks was prescribed as the qualifying marks

in the written examination. Justice Chelameshwar, writing for a three-judge

Bench observed that changing the ‗rules of the game‘ midstream or after the

game has been played is an ―aspect of retrospective law-making power‖. This

Court held that the principle applied in Manjusree (supra), without further scrutiny

would not further public justice and efficient administration. This Court referred

the question to a larger Bench in the following terms

66

:

―15. No doubt it is a salutary principle not to permit the

State or its instrumentalities to tinker with the ―rules of the

game‖ insofar as the prescription of eligibility criteria is

concerned as was done in C. Channabasavaih v. State of

Mysore [AIR 1965 SC 1293], etc. in order to avoid

manipulation of the recruitment process and its results.

Whether such a principle should be applied in the context

of the ―rules of the game‖ stipulating the procedure for

selection more particularly when the change sought is to

impose a more rigorous scrutiny for selection requires an

authoritative pronouncement of a larger Bench of this

Court. We, therefore, order that the matter be placed

before the Hon'ble Chief Justice of India for appropriate

orders in this regard.‖

57 In Dr Prerit Sharma v. Dr Bilu

67

, the information bulletin for NEET-SS

2020 was issued on 3 August 2020. The examination was held on 15 September

2020, and the results were declared on 25 September 2020. Clause 5.16 of the

information bulletin that was released when the registration process had begun

stipulated that there would be no reservation in the SS courses. The medical

66

The Bench noticed the judgment in State of Haryana v, Subash Chander Marwaha, (1974) 3 SCC 220 where

the Supreme Court upheld the decision of the State to not appoint all candidates who had secured the minimum

percentage of marks.

67

Civil Appeal No. 3840 of 2020

PART D

65

counselling committee issued the counselling scheme for AIQ for NEET-SS

course 2020-21 in which it was mentioned that there would be no reservation for

the SS courses by referring to the judgments of this Court in Dr Preeti

Srivastava (supra) and Dr Sandeep Sadashivrao v. Union of India

68

. The

counselling for the SS course was postponed. The State of Tamil Nadu issued

GOMS No. 462 dated 7 November 2020 stipulating that 50 percent of the SS

seats in Government medical colleges in the State of Tamil Nadu would be

reserved for in-service candidates. This Court observed that when the process for

admissions to the SS courses had began, it was notified through the information

bulletin that there would be no reservation in the SS courses. Therefore, it was

held that reservation for in-service doctors shall not be permitted for the current

academic year.

58 The impugned notice providing reservation for the OBC and EWS

categories in the AIQ seats was issued after the registration had closed but

before the exam was conducted. Thus, it would not amount to altering the rules of

the game for the following reasons:

(i) The judgments cited by the counsel for the petitioner on ‗changing the

rules of the game midway‘ referred to changes in the selection criteria

or the procedure for selection. Those cases are distinguishable from

the case before us since the impugned notice did not alter the selection

criteria;

68

(2016) 2 SCC 328

PART E

66

(ii) The judgments referred to applied the principle of not changing the

rules of the game mid-way after the selection process (of exams and

interviews) was completed; and

(iii) Clause 11 of the information bulletin specifies that the reservation

applicable would be notified by the counselling authority before the

beginning of the counselling process, unlike the facts in Dr Prerit

Sharma (supra). The candidates while applying for NEET-PG are not

provided any information on the distribution of the seat matrix. Such

information is provided by the counselling authority only before the

counselling session is to begin.

E. Conclusion

59 In view of the discussion above we hold that the reservation for OBC

candidates in the AIQ seats for UG and PG medical and dental courses is

constitutionally valid for the following reasons:

(i) Articles 15(4) and 15 (5) are not an exception to Article 15 (1), which itself

sets out the principle of substantive equality (including the recognition of

existing inequalities). Thus, Articles 15 (4) and 15 (5) become a

restatement of a particular facet of the rule of substantive equality that has

been set out in Article 15 (1);

(ii) Merit cannot be reduced to narrow definitions of performance in an open

competitive examination which only provides formal equality of opportunity.

Competitive examinations assess basic current competency to allocate

educational resources but are not reflective of excellence, capabilities and

PART E

67

potential of an individual which are also shaped by lived experiences,

subsequent training and individual character. Crucially, open competitive

examinations do not reflect the social, economic and cultural advantage

that accrues to certain classes and contributes to their success in such

examinations;

(iii) High scores in an examination are not a proxy for merit. Merit should be

socially contextualized and reconceptualized as an instrument that

advances social goods like equality that we as a society value. In such a

context, reservation is not at odds with merit but furthers its distributive

consequences;

(iv) Articles 15 (4) and 15 (5) employ group identification as a method through

which substantive equality can be achieved. This may lead to an

incongruity where certain individual members of an identified group that is

being given reservation may not be backward or individuals belonging to

the non-identified group may share certain characteristics of backwardness

with members of an identified group. The individual difference may be a

result of privilege, fortune, or circumstances but it cannot be used to

negate the role of reservation in remedying the structural disadvantage

that certain groups suffer;

(v) The scheme of AIQ was devised to allot seats in State-run medical and

dental institutions in which students from across the country could

compete. The observations in Pradeep Jain(supra) that the AIQ seats

must be filled by merit, must be read limited to merit vis-à-vis residence

PART E

68

reservation. This Court in Pradeep Jain (supra) did not hold that

reservation in AIQ seats is impermissible;

(vi) The Union of India filed an application before this Court in Abhay Nath

(supra) placing the policy decision of the Government to provide

reservation for the SC and ST categories in the AIQ seats since until then

in view of the confusion on demarcation of seat matrix, there was no clarity

on whether reservations could be provided in the AIQ seats. The Union

Government was not required to seek the permission of this Court before

providing reservation in AIQ seats. Therefore, providing reservation in the

AIQ seats is a policy decision of the Government, which will be subject to

the contours of judicial review similar to every reservation policy;

(vii) It was clarified in Dinesh Kumar (II) (supra) that the total seats

demarcated for AIQ shall be determined without excluding reservation as

was earlier directed by Pradeep Jain (supra) and clarified in Dinesh

Kumar (I). However, this Court in Buddhi Prakash Sharma (supra) had

erroneously construed the clarification in Dinesh Kumar (II) to mean that

there should be no reservation in AIQ seats. Therefore, the order in Abhay

Nath (supra) was only clarificatory in view of the observations in Buddhi

Prakash Sharma (supra); and

(viii) Clause 11 of the information bulletin specifies that the reservation

applicable to NEET-PG would be notified by the counselling authority

before the beginning of the counselling process. Therefore, the candidates

while applying for NEET-PG are not provided any information on the

distribution of seat matrix. Such information is provided by the counselling

PART E

69

authority only before the counselling session is to begin. It thus cannot be

argued that the rules of the game were set when the registration for the

examination closed.

60 The challenge to the constitutional validity of OBC reservation in AIQ seats

introduced through the notice dated 29 July 2021 is rejected in view of the above

discussion.

61 Pending application(s), if any, relating to the issue of OBC reservation

implemented through the notice dated 29 July 2021 stand disposed of.

…….…………………………...............................J.

[Dr Dhananjaya Y Chandrachud]

…….…………………………...............................J.

[A S Bopanna]

New Delhi;

January 20, 2022

1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Writ Petition (C) N o. 961 of 2021

Neil Aurelio Nunes and Ors. … Petitioners

Versus

Union of India and Ors. … Respondents

With

Writ Petition (C) No 967 of 2021

With

Writ Petition (C) No 1002 of 2021

With

Writ Petition (C) No 1021 of 2021

And With

Writ Petition (C) No 1105 of 2021

2

O R D E R

This order has been divided into the following sections to facilitate analysis:

A. Genesis of the Controversy .......................................................................... 3

B. Issues raised by this Court ........................................................................... 6

C. The Initial Stand of the Union Government ................................................. 8

D. Major Sinho Commission Report ............................................................... 11

E. Union Government’s Decision to Revisit the EWS Criteria ..................... 13

F. The Findings of the Pandey Committee .................................................... 14

G. Submissions of Counsel ............................................................................. 22

H. Analysis ........................................................................................................ 33

PART A

3

A. Genesis of the Controversy

1 These writ petitions challenge the reservation for Other Backward Classes

1

and Economically Weaker Section

2

in the All India Quota

3

seats in the National

Eligibility cum Entrance Test (Post Graduate) examination

4

. The criteria for the

determination of the EWS for the ten percent reservation in pursuance of The

Constitution (One Hundred and Third Amendment) Act 2019 has come under

challenge. The permissibility of reservations in the AIQ seats has been

addressed in the judgment dated 20 J anuary 2022. This order will only deal with

the challenge to the criteria for determination of the EWS category.

2 An information brochure was released on 23 February 2021 scheduling the

NEET-PG 2021 examination on 18 April 2021. The registration process

commenced on 23 February 2021 and the last date for registration was 15 April

2021. However, in view of the second wave of the COVID -19 pandemic, the

Ministry of Health and Family Welfare

5

issued a notice dated 15 April 2021

postponing the examination until further notice. By an official statement issued on

3 May 2021, the NEET-PG 2021 examination was postponed by another four

months. The National Board of Examinations in Medical Sciences, New Delhi

issued a notice on 13 April 2021 rescheduling the NEET-PG 2021 examination to

11 September 2021. The Directorate General of Health Services, MoHFW issued

a notice on 29 July 2021 to implement 27 percent OBC reservation (non- creamy

1

“OBC”

2

“EWS”

3

“AIQ”

4

“NEET-PG”

5

“MoHFW"

PART A

4

Layer) and 10 percent EWS reservation in the 15 percent undergraduate

6

and 50

percent PG AIQ seats in the current academic session of 2021- 22. The notice

stated thus:

“NOTICE

Urgent Attention Candidates of NEET-UG and NEET-PG:

It has been decided by the Government of India to implement

27% OBC reservation (Non- creamy later) and 10% EWS

reservation in the 15% AIQ UG seats and the 50% All India

Quota seats (MBBS/BDS and MD/MS/MDS) (contributed by

the State/UTs). This reservation will take effect from the

current Academic session 2021- 22.

Consequently, the overall reservation in 15% UG and 50%

PG All India Quota seats would be as follows:

SC-15%

ST-7.5%

OBC (Non-creamy layer) as per the Central OBC list-27%

EWS- as per the Central Government Norms -10%

PwD-5% Horizontal Reservation as per NMC Norms”

3 The Constitution was amended by the Constitution (One Hundred and Third

Amendment) Act 2019, including Articles 15(6) and 16(6). Article 15(6) states that

special provisions (including reservation) shall be made for the advancement of

the EWS category in classes “other than the classes mentioned in clauses (4)

and (5)”. An explanation to Article 15 was also included by the constitutional

amendment which reads as follows:

“Explanation- For the purposes of this article and article 16,

“economically weaker sections” shall be such as may be

notified by the State from time to time on the basis of family

income and other indicators of economic disadvantage”

6

“UG”

PART A

5

4 The Department of Personnel, Public Grievances & Pensions, Department

of Personnel & Training, Government of India on 17 January 2019

7

in pursuance

of the explanation to Article 15(6) issued an executive order (O.M No.

36039/1/2019) defining the criteria for identification of EWS. The relevant extract

of the OM is as under:

“3. EXEMPTION FROM RESERVATION

3.1 “Scientific and Technical” posts which satisfy all the

following conditions can be exempted from the purview of the

reservation orders by the Ministries/Departments:

(i) The posts should be in grades above the lowest grade in

Group A of the service concerned.

(ii) They should be classified as ‘scientific or technical” in

terms of Cabinet Secretariat (OM No. 85/11/CF-61(1) dated

28.12.1961), according to which scientific and technical posts

for which qualifications in the natural sciences or exact

sciences or applied sciences or in technology are prescribed

and the incumbents of which have to use that knowledge in

the discharge of their duties.

(iii) The posts should be ‘for conducting research’ or ‘for

organising, guiding and directing research’.

3.2 Orders of the Minister concerned should be obtained

before exempting any posts satisfying the above condition

from the purview of the scheme of reservation.

4.CRITERIA FOR INCOME & ASSETS

4.1 Persons who are not covered under the scheme of

reservation for SCs, STs and OBCs and whose family has

gross annual income below Rs 8 lakh (Rupees eight lakh

only) are to be identified as EWSs for benefit of reservation.

Income shall also include income from all sources i.e. salary,

agriculture, business, profession, etc. for the financial year

prior to the year of application. Also persons whose family

owns or possesses any of the following assets shall be

excluded from being identified as EWS, irrespective of the

family income:-

i. 5 acres of agricultural land and above;

ii. Residential at of 1000 sq ft. and above;

iii. Residential plot of 100 sq. yards and above in notified

municipalities;

iv. Residential, plot of 200 sq. yards and above in areas other

than the notified municipalities.

4.2. The property held by a "Family" in different locations or

different places/cities would be clubbed while applying the

land or property holding test to determine EWS status.

4.3 The term "Family" for this purpose will include the person

who seeks benefit of reservation, his/her parents and siblings

below the age of 18 years as also his/her spouse and children

below the age of 18 years.”

7

“OM”

PART B

6

5 The petitioners are doctors who appeared for the NEET-PG 2021

examination. The petitioners filed a writ petition on 24 August 2021 challenging

the validity of the notice issued on 29 July 2021 providing reservation for the OBC

category and EWS category in NEET-PG examination and sought quashing of

the notice. One of the arguments raised by the petitioners was that the criteria

under the OM for the determination of the EWS category is arbitrary.

B. Issues raised by this Court

6 Notice was issued on 6 September 2021. The NEET-PG results were

declared on 28 September 2021. The arguments were heard in part by the Bench

on 7 October 2021. The Bench questioned the basis of using Rs 8 lakhs as the

income limit for identifying EWS. Two weeks were granted to the Union

Government to file an affidavit clarifying the basis for adopting the Rs 8 lakhs

income criteria.

7 When the petitions were called for hearing on 21 October 2021, the Union

Government had not filed an affidavit clarifying the basis of the Rs 8 lakhs income

limit for determining the EWS. Mr KM Nataraj, learned Additional Solicitor

General informed the Bench that he would be in a position to file an affidavit in

two days. The Bench formulated specific questions on the Rs 8 lakhs income limit

and required disclosure from the Union Government. The order dated 21 October

2021 stated thus:

“2. Mr K M Nataraj, the learned Additional Solicitor General

states that he has received oral instructions and would be in a

position to file the affidavit within a period of two days. At the

same time, during the course of the hearing, we have

formulated certain issues in regard to the criteria adopted for

identification of the EWS category. We propose to formulate

PART B

7

them in this order so that the Union government can bring

clarity to the issues by filing its affidavit. The specific issues

on which a disclosure shall be made in the affidavit are as

follows:

(i) Whether the Union government undertook an exercise before

arriving at the criteria for the determination of the EWS

category;

(ii) If the answer to (i) above is in the affirmative, whether the

criteria are based on the report submitted by Major General

Sinho (2010). If the criteria are based on Major General

Sinho’s report, a copy of the report should be placed on the

record of these proceedings;

(iii) Whether the EWS category is over inclusive;

(iv) The income limit in the criteria for the determination of the

creamy layer of the OBC category and the EWS category is

the same, namely, Rs 8 lakhs. While the creamy layer in the

OBC category is identified for excluding a section of the

community that has ‘economically progressed’ to such an

extent that the social backwardness of the community

diminishes, the EWS category is identified to include the

segment which is ‘poorer’ when compared to the rest of the

community. Therefore (a) the income criterion in respect of

the OBC category is aimed at exclusion from a class while in

the case of the EWS category, it is aimed at inclusion; and (b)

the OBC category is socially and educationally backward and,

therefore, has additional impediments to overcome as

compared to those belonging to the general category. In

these circumstances, would it be arbitrary to provide the

same income limit both for the OBC and EWS categories;

(v) Whether the differences in the GDP/per capita income of

different States have been accounted for while arriving at Rs

8 lakhs income limit;

(vi) Whether the differences in the purchasing power between

rural and urban areas have been accounted for while fixing

the income limit; and

(vii) According to the notification of Union government (OM No.

36039/1/2019), families which have an income lower than Rs

8 lakhs would be excluded from the EWS category if the

family holds assets of (a) five acres of agricultural land and

above; (b) a residential plot of 100 square yards and above in

notified municipalities and 200 square yards and above in

areas other than notified municipalities; and (c) a residential

flat of 1000 square feet and above. In this context, a

disclosure may be made on the following aspects:

(i) On what basis has the asset exception been arrived at and

was any exercise undertaken for that purpose; WP(C)

961/2021;

(ii) (ii) Whether municipalities as required under the exception

have been notified;

PART C

8

(iii) The reason why the residential flat criterion does not

differentiate between metropolitan and nonmetropolitan

areas.

3. We grant liberty to the Union government to place its affidavit

on record making a full disclosure on the record on the issues

raised above since the Court must be apprised of the nature

of the exercise undertaken while fixing the income criterion for

the EWS category. In this context, it would be significant to

note that the explanation to Article 15(6) which was

introduced as a result of the 103rd Constitutional Amendment

in 2019, specifically enunciates that for the purposes of Article

15(6) and for Article 16(6), economically weaker sections

shall be such as may be notified by the State from time to

time on the basis of family income and other indicators of

economic disadvantage. It is in this context that it would be

necessary for the Union government to disclose before the

Court the nature of the exercise which was undertaken to

categorize the economically weaker section as mandated by

the provisions of the explanation to Article 15. We may clarify

at this stage that the Court is not embarking upon any issue

of policy while requiring such a disclosure to be made before

it, but will determine as to whether the constitutional

requirements have been duly complied with. 4 Counter

affidavit, if any, be filed on or before 26 October 2021. 5 List

the Writ Petitions on 28 October 2021 as the first item on the

Board.”

C. The Initial Stand of the Union Government

8 On 25 October 2021, the Union Government deferred counselling due to the

pendency of the petitions . The Union Government filed an affidavit justifying the

EWS criteria on 26 October 2021, making the following submissions:

(i) Exercise was undertaken by the Union Government to determine the

EWS category: The criteria for the determination of the EWS category

was arrived at after due deliberation within the Ministry of Social

Justice and Empowerment and all the concerned stakeholders. Even

before the OM dated 17 January 2019 was issued, the Union

Government had set up the Major Sinho Commission in 2005 for

PART C

9

identification of the EWS and determining the c onstitutional

permissibility of reservation for the class;

(ii) The criteria for the determination of the EWS category does not suffer

from over-inclusiveness: Any cut-off criteria is likely to have some

degree of assumption. The fixation of Rs 8 Lakhs is based on criteria

for the determination of the creamy layer of the OBCs. The Major

General Sinho Commission had recognised that the income limit for

the determination of the creamy layer of the OBCs could be used for

the identification of the EWS category. The OM dated 17 January 2019

provides further checks in the form of the assets exemption so that

only the needy receive the benefit of reservation under Articles 15(5)

and 16(6);

(iii) The same income limit criteria used for determining both the EWS and

the creamy layer of OBCs is not arbitrary: The exercise conducted to

determine the creamy layer for the purpose of the OBC reservation would be equally applicable for the determination of the EWS category

since the premise is that persons having substantial economic standing

may not receive the benefits of the reservation. The courts can only

determine if there is ‘some material’ for arriving at the income criteria.

The courts cannot review the criteria;

(iv) Urban- rural and State divide: Though there will be differences in the

purchasing power and GDP of different areas (Urban/Rural; amongst

States, amongst different districts in a State), it is sufficient if the

criteria is based on ‘some material’. There is no need to prescribe

PART C

10

different income limits for rural and urban families since EWS is

intended mostly for students in higher education and employment.

Since there is constant migration from rural to urban areas for

education and employment, a separate criteria will not be needed. It is

sufficient if the criteria is based on broad probabilities since it is

impossible to achieve mathematical precision;

(v) Asset Exception: The assets exception is provided to ensure that the

reservation is provided only to the needy. ‘Notified municipalities’ refers

to all municipalities legally constituted; and

(vi) Other Arguments: The total seats have been increased by 56 percent

in MBBS and by 80 percent in PG in the last six years. Therefore, the

total number of seats available for the general category has increased.

The issue of whether reservation for the EWS would violate the law laid

down in Indra Sawhney v. Union of India

8

since it exceeds the 50

percent reservation cap is the subject matter of reference to a five-

judge Bench in Janhit Abhiyan v. Union of India

9

, which is

adjudicating upon the constitutional validity of t he Constitution (One

Hundred and Third Constitution Amendment) Act 2019.

8

AIR 1993 SC 477

9

WP (C) 55/2019

PART D

11

D. Major Sinho Commission Report

9 At this stage, a reference must be made to the Major Sinho Commission

report since the Union Government has strongly relied on the observations in the

report on using the income limit for identifying the creamy layer of the OBC for

determining the EWS. The Major Sinho Commission was constituted for

determining the EWS among the unreserved categories. Chapter III of the

Commission’s report noted that the welfare measures (excluding reservation

which would require other considerations) may be extended to the EWS

category.

10

Chapter IV of the report discusses the parameters to determine the

EWS category. The relevant parameters for the identification of EWS were

enumerated as follows:

(a) Monthly Per Capita Expenditure;

(b) Below Poverty Line

11

Category;

(c) Occupational Pattern and Backwardness;

(d) Educational Backwardness;

(e) Status of Health and Nutrition; and

(f) Housing Conditions

10 Analysing the above parameters across categories, the Commission arrived

at the following conclusion s:

10

Internal page 20 of the Report. The Report noted, “On the basis of the above, this Commission gathers the

Constitutional and legal understanding that ‘Backward Classes’ cannot be identified for providing reservation in

employment and admission in educational institutions on the basis of economic criteria and hence ‘Economically

Backward Classes’ (EBCs) can be identified by the State for extending welfare measures only and in order to

provide any quantum of reservation to them (EBCs) two essential aspects need to be considered:

(i) Social, educational and economic backwardness, and

(ii) Until a different direction is given by the Supreme Court or a Constitutional Amendment is made,

the 50 per cent limit for reservation makes a binding on the State for any further increase in the

quantum of reservation to any class.”

11

“BPL”

PART D

12

(i) A part of the general category formed a class of poor along with poor of

other social groups. Poor households resulted from landlessness, high

women illiteracy, marginal farm holdings and part-time/temporary work

in the unrecognized sector. Such people have to cope with kutcha

housing, poor hygiene and inability to spend on basics;

(ii) Socio-economic condition of the general category is better than other

social groups but segments within the general category are equivalent

to or worse off than the OBCs; and

(iii) The general category has a deeper creamy layer than OBCs. The

lower end of the spectrum of the g eneral category and the OBCs are

comparable.

The Major Sinho Commission made the following recommendations for the

identification of the EWS:

(i) Socio-economic backwardness prevails at a community level. However,

economic backwardness prevails at a family level. Thus, the family

should be the unit for identification of EWS; and

(ii) The BPL families must be identified as EWS. This view was also

expressed by various States. While the creamy layer criteria could be

used for the identification of EWS, the creamy layer was a concept

exclusive to a class that suffers both social and educational

backwardness. The economic needs of EWS differs and hence just one

criterion of BPL or setting creamy layer of OBC as the upper limit would

not be effective to ensure intended benefits to EWS. The percentage of

BPL among the g eneral category was less compared to the backward

PART E

13

class, however the poor of the g eneral category (though above BPL)

still suffered from malnutrition, poor health, and low standard of living.

Therefore, families with income less than the current non- taxable limit

of Rs. 1,60,000 (as may be revised from time to time) and the BPL

families should be identified as EWS.

E. Union Government’s Decision to Revisit the EWS Criteria

11 On 28 October 2021, the learned Solicitor General sought an adjournment,

requesting that the petitions be heard after the Diwali vacation. Thereafter, on 25

November 2021, the learned Solicitor General stated that the Union Government

had taken a considered decision to revisit the criteria for determining EWS in

accordance with the provisions of the explanation to Article 15 of the Constitution

inserted by t he Constitution (One Hundred and Third Constitution Amendment)

Act 2019. The Solicitor General submitted that a period of four weeks would be

required to conduct this exercise and the counselling would remain suspended

during such period. Acceding to the Union Government’s request to revisit the

criteria, this Court posted the petitions for hearing on 6 January 2022.

12 The Union Government by its order dated 30 November 2021 constituted a

Committee

12

to review the criteria for determination of the EWS category. The

terms of reference of the committee stated thus:

“a) To re-visit the criterion given in OM dated 17.01.2019 in

determining EWS category keeping in view the observations

of the Hon’ble Supreme Court in their order date d

21.10.2021,

b) To examine various approaches so far followed in the

country for determining economically weaker sections, and

12

“Pandey Committee”

PART F

14

c) Recommend criteria that may be adopted for identifying

EWS category in future.”

The Pandey Committee submitted its report to the Government on 31 December

2021.

13 Thereafter, the Union Government filed an affidavit before this Court

submitting that it has accepted the recommendations of the Pandey Committee

including its recommendation that the new criteria for identifying EWS must be

applied prospectively and not in the current admission year of 2021- 2022.

F. The Findings of the Pandey Committee

14 It is important to advert to the findings of the Pandey Committee on the

issues raised by this Court by its order dated 21 October 2021. The Pandey

Committee’s short responses to the issues raised by this Court are given in the

table below

13

:

Q. Based on prevailing conditions and economic disparity in the country, what should

be the principles for determining criteria that may be used for identifying EWS?

A feasible criterion for defining EWS can be based on income (family income).

Q. If income criteria is to be used then what would be the threshold for income for

identifying EWS

A threshold of Rs 8 lakhs of annual family income, in the current situation, seems reasonable

for determining EWS.

Q. Is there any justification for adopting a uniform income-based threshold across the

country for the identification of EWS - especially in light of the disparity in purchasing

power across the country?

The desirability of a uniform income- based threshold has been upheld by the Supreme Court,

and it can be adopted across the country as a matter of economic and social policy, drawing

authority from Article 254 and Article 73, read with Entry 20 of the Concurrent List.

13

Internal page number 29 of the Report

PART F

15

Q. Is the current limit of annual family income of Rs 8 lakhs over-inclusive?

The current limit of annual family income of Rs 8 lakhs does not seem to be over-inclusive as

the available data on actual outcomes does not indicate overinclusion. It should be noted that

income includes salary and agriculture as well.

Q. Should there be other criteria to determine economic weakness, in addition to

income? Should residential or other assets be considered for EWS?

Q. In case, inclusion of asset in the criteria for EWS is justified, is the current asset limit adequate or does it require a review based on factors including differences in valuation

due to location of the assets?

It will be prudent to have only income criteria for EWS. Residential asset criteria may be

omitted altogether. However, the families holding more than 5 acres of land or more may be excluded from EWS.

15 The Pandey Committee observed that income limit is the most appropriate

criteria to identify EWS as opposed to a multiple -criteria approach because the

latter requires complex and large- scale surveys. The periodic surveys may not be

able to capture the evolving nature of the EWS category. Further, over-reliance

on consumption patterns would result in beneficiaries hiding or avoiding the

consumption of goods and services. The report stated thus:

“3.3.1.24. The problem with a multiple- criteria approach is

that it requires complex, large- scale surveys. While it may be

possible to periodically do such detailed socio- economic

surveys, it should be noted that our idea of EWS keeps

evolving. For example, using the refrigerator or a phone

connection as one of the parameters may have been valid for

exclusion in 2011 but may not be true today. Moreover, if we

start to rely too heavily on certain consumption patterns to

identify beneficiaries, we will end up with people gaming the

system by hiding or avoiding certain goods and services. ”

16 The Pandey Committee sought to justify the use of Rs 8 lakhs income- cut

off for determining the EWS category by placing reliance on the Major Sinho

Commission report, which it submitted, proposed using the concept of “creamy

layer” in OBCs to determine the criteria for identifying EWS among the general

PART F

16

category. Further, it noted that despite having a similar threshold of Rs 8 lakhs,

the criteria applied for the determination of creamy layer in OBCs and EWS is

different. The report contains the following table enumerating the differences

between the two criteria

14

:

Table III: Creamy Lawyer among OBCs vs EWS criteria

Parameters Creamy Layer among OBCs EWS

Annual Family Income and

Eligibility in years

Annual Income above Rs 8

lakh for 3 consecutive years

will be excluded

Annual income should be

less than Rs 8 lakhs in the

preceding financial year will

be included

Income from salaries or

agricultural land

Excluded Included

Persons working as artists or

engaged in hereditary

occupations

Excluded Included

Definition of Family Candidate, parents, minor

children

Candidate, parents, minor

siblings, spouse, minor

children

The Pandey Committee also submitted that if adequate investments are made

and deductions are taken advantage of, the effective income tax exemption limit

is Rs 7 to 8 lakhs. The relevant portion of the report is reproduced below:

“3.3.1.39 The current annual income tax exemption limit is Rs

2,50,000. However, in February 2019 the Government

through Finance Act amended the Income Tax Act to provide

relief to the low-income individuals wherein anyone having

taxable income up to five lakhs of rupees per annum was

exempt from paying income tax. Whatever tax that was

calculated for the income exceeding Rs.2,50,000 was given

back to the taxpayer by way of rebate which effectively meant

that individuals having taxable income up to 5 lakhs of rupees

had their entire income tax free. As a result, even persons

having gross income up to Rs. 6.50 lakhs are not be required

to pay any income tax if they make investments in provident

funds, specified savings, insurance etc. In fact, with additional

deductions such as interest on a home loan up to Rs 2 lakh,

interest on education loans, National Pension Scheme

contributions, medical insurance, medical expenditure on

14

Internal page number 44 of the Report

PART F

17

senior citizens etc, persons having even higher income do not

have to pay any tax. In addition, salaried persons get an

additional standard deduction of Rs 50,000. Income from

capital gain on listed shares/units up to Rs 100,000 too is

exempt from tax. Effectively, a person earning up to around

Rs 8 lakhs are not be required to pay any income tax from the

financial year 2019- 2020 onwards, provided he makes some

specified savings etc. Further, Income from agriculture too is

not included for the purpose of income tax in this case.

….

3.3.1.42 It should be noted that the Rs 8 lakh annual gross

annual income limit for inclusion into EWS is

-is for the entire family as against the individual income tax

exemption limit of Rs 5 lakh

-is without any deduction’s available various provisions of

income tax such as 80C, standard deductions etc.

-includes agricultural income. The individual income tax

exemption limit does not include agricultural income.

3.3.1.43 As per current income tax norms, the effective

income tax on individuals is zero for those with incomes up to

INR 5 lakhs. As discussed in the foregoing paras after taking

advantage of the various provisions for savings, insurance

etc., the tax-payer may not need to pay any tax up to an

annual income of INR 7- 8 lakhs. Thus, the EWS cut-off, if

applied to just an individual, is in the ballpark of income tax

requirements for zero tax liability. Once applied to include

family income and farm income, however, it becomes much

more demanding.”

In the Pandey Committee’s opinion, a lower-income limit would increase the risk

of excluding deserving candidates. However, to avoid undeserving candidates

from taking the benefit of reservation, a set of simple asset criteria should be

introduced to weed out such candidates instead of lowering the income limit.

15

17 The Pandey Committee submitted that uniform criteria should be imposed

for identifying EWS because prescribing different income limits based on the

differences in purchasing power in urban and rural areas would create

complications, especially on account of migration. It will also lead to

15

Para 3.3.1.34 at internal page 44 of the Report.

PART F

18

administrative difficulty in implementation. The Pandey Committee concluded

thus:

“3.3.2.5 In the present context of establishing a uniform

income criterion across the country for determining EWS, this

judgment draws focus on the need to have a uniform criterion

for determining EWS across the country, as it relates to the

practical implementation of such criterion. It was argued

before the Supreme Court in Jaishree Laxman Rao Patil

(Supra) that the establishment of such standards by the

states may lead to vote- bank politics and that a national body

that would be charged with establishing such uniform criteria

would be able to objectively, “without being pressurised by

the dust and din of electoral politics” be able to provide

benefits.

3.3.2.6 Therefore, the Committee is of the view having

different income limits for different geographies or areas is

neither feasible nor desirable.”

18 The Pandey Committee submitted that the Rs 8 lakhs cut -off is not over-

inclusive because data shows that the majority of the candidates fall within the

lower income brackets of below Rs 5 lakhs. The Pandey Committee relied on the

data on household income distribution for qualified EWS candidates in UPSC,

NEET-UG 2020 and JEE (2021) examinations. The Pandey Committee’s

conclusion is reproduced below:

“3.3.3.6 After analysing the data of the three different

entrance examinations. The committee is of the view that

there is no evidence that the current cut-off of Rs 8 lakhs is

leading to a major problem of the inclusion of undeserving

candidates. Nonetheless, the committee observed that the

distribution of the deserving candidates will have a long “tail”

for various factors such as income volatility, size of family, the

inclusion of agricultural income, high cost of living in certain

locations and so on. Therefore, despite the fact that the bulk

of the qualifying candidates is below Rs 5 lakhs, a somewhat

higher threshold is needed which ensures that deserving

beneficiaries in the tail of the distribution are not excluded.

3.3.3.7 Thus, the committee is of opinion that the income

criteria of INR 8 lakh per annum performs well based on

evidence and should be kept unchanged for identifying EWS.”

PART F

19

19 The Pandey Committee was of the view that there should be no interference

with the existing criteria relating to exclusion of families having agricultural land of

5 acres or more from the category of EWS even if their gross income is less than

Rs 8 lakhs. The Pandey Committee observed that it is the marginal and small

farmers who have farm holdings up to 5 acres whose monthly income is in the

range of Rs 10,000. The Pandey Committee observed thus:

“3.3.4.17 The situation is quite vulnerable for the marginal

(less <1 hectare) and small farmers (1-2 hectares of land) as

their income is way behind that of the medium and large

farmers. A finer categorisation of farmers as per the size of

land holdings reveals that the marginal and small farmers’

average monthly earning are barely Rs 9,099, and Rs 11,000

respectively.

3.3.4.18 Therefore, considering that the marginal and small

farmers (having landholding up to 5 acres of land) are able to

have monthly income only in the range of around Rs 10,000,

the committee is of the view, there is no need to interfere in

the criterion of 5 acres of agricultural land.”

20 The Pandey Committee opined that the residential asset criteria for

identifying EWS must be removed. The Pandey Committee noted that there are

practical difficulties in identifying a common denominator that can be used in rural

and urban areas for determining EWS. The Pandey Committee submitted that it

could be difficult to apportion the share of the nuclear family in the residential

house of a joint family. Further, in rural and semi -rural areas, house plots are also

used for storing grains, agricultural equipment and sheltering cattle. It will be

difficult to demarcate the criteria of the residential house. In urban areas, various

measurements are used like carpet area, built -up area and super -built-up area. It

will place an onerous burden on a candidate to get these areas measured and

calculated for obtaining certificates from the designated authority. The Pandey

PART F

20

Committee also observed that criteria of residential house or plot area does not

encapsulate the value of the land which may differ according to geographic

location. The Pandey Committee concluded thus:

“3.3.4.31…. The Committee is therefore of the view that a

similar approach could be adopted for EWS wherein

residential asset exclusion criterion may be omitted for

simplicity, ease, and convenience. In short, an asset criterion

on residential plot size or flat floor area should not be

imposed unless there is clear evidence that the system is

being widely gamed in practice. Even if there was evidence of

misuse, the Committee is of the opinion that it may be easier

to mine the wealth of digital information to establish real

income rather than get caught in a complex debate about

ownership and valuation.”

21 Thus, effectively the only revision that the Pandey Committee has

recommended is the exclusion of the residential asset criteria in determining the

category of EWS. The Pandey Committee in its report observed that applying the

new criteria would disturb the ongoing admissions and lead to delay. It was

further stated that since the present EWS criteria was being applied since 2019,

no serious prejudice would be caused if it is implemented in the present year as

well. The relevant observations of the Pandey Committee are reproduced below:

“4.19….

…..

(iv) The Committee deliberated upon the vexed question as to

from which year the criteria suggested in his Report should be

used, adopted and made applicable. The Committee found

that the existing criteria [the criteria applicable prior to this

Report] is in use since 2019. The question of desirability of

the existing criteria arose and a possibility of its being

revisited arose only recently in Neil Aurelio Nunes and ors.

versus Union of India and ors. and a batch of petitions

towards the later part of 2021. By the time this Hon'ble Court

started examining the said question and the Central

Government decided to revisit the criteria by appointing this

Committee, the process with respect to some appointments /

admissions have taken place ormust have been at an

irreversible and advanced stage. The existing system which is

going on since 2019, if disturbed at the end or fag- end of the

PART F

21

process would create more complications than expected both

for the beneficiaries as well as for the authorities.

In case of admissions to educational institutions, sudden

adoption of a new criteria inevitably and necessarily would

delay the process by several months which would have an

inevitable cascading effect on all future admissions and

educational activities / teaching / examination which are time

bound under various statutory / judicial time prescriptions.

Under these circumstances, it is completely unadvisable and

impractical to apply the new criteria (which are being

recommended in this report) and change the goal post in the

midst of the on- going processes resulting in inevitable delay

and avoidable complications. When the existing system is

ongoing since 2019, no serious prejudice would be caused if

it continues for this year as well. Changing the criteria midway

is also bound to result in spate of litigations in various courts

across the country by the people/persons whose eligibility

would change suddenly.

The Committee, therefore, after analysing the pros and cons

on this issue and after giving serious consideration,

recommends that the existing and ongoing criteria in every

on-going process where EWS reservation is available, be

continued and the criteria recommended in this Report may

be made applicable from next advertisement / admission

cycle.”

22 The petitions were listed on 5 January 2022 after a request for urgent listing

was made by the Solicitor General. It was urged on behalf of the Union

Government that the OBC and EWS reservation (following the old criteria) must

be allowed to be implemented in the present admission year. This has been

contested by the petitioners.

23 By an order dated 7 January 2022, this Court upheld the constitutional

validity of the OBC reservation in AIQ medical and dental UG and PG seats. The

constitutionality of the criteria used for the identification of the EWS category is

yet to be decided. However, in the interim, this Court directed that the counselling

in NEET-PG 2021 and NEET-UG 2021 be conducted by giving effect to the

reservation provided by the notice dated 29 July 2021, including the 27 percent

PART G

22

OBC reservation and 10 percent EWS reservation. The reasons for allowing

EWS reservation for the current academic year 2021- 2022 are provided in this

order.

G. Submissions of Counsel

24 Mr. Arvind Datar, learned Senior Counsel appearing for the petitioner s

argued that the criteria fixed for determining the EWS category in the OM is prima

facie arbitrary. In support of this argument, he made the following submissions:

(i) The Constitution was amended by t he Constitution (One Hundred and

Third Amendment) Act 2019 on 14 January 2019 to provide 10 percent

reservation for the EWS of the unreserved category. The OM laid down

the criteria for determining the EWS category within three days of

introducing the amendment. The Union Government did not undertake

any study before notifying the criteria on 17 January 2019. It evident

from the report submitted by the Pandey committee that no exercise

was undertaken before notifying the criteria in 2019;

(ii) The report of the Pandey committee only justifies the criteria but does

not submit the exercise that was undertaken for arriving at the criteria;

(iii) The Rs 8 lakhs incom e limit prescribed for determining the EWS

category is arbitrary because:

(a) The income limit used to determine the creamy layer category of

OBC/BC/MBC is used to identify EWS. The OBC category suffer from

both social and economic backwardness unlike the unre served

category. The criteria for exclusion cannot be used as the criteria for

inclusion;

PART G

23

(b) The prescription of the Rs 8 lakhs income limit would amount to treating

unequal’s equally. For example, the per capita income of States differs.

Goa has a per capita income of Rs 4 lakhs, while Bihar has a per capita

income of Rs 40,000. The Minister of State of the Ministry of Statistics

and Programme implementation, while answering a P arliamentary

question acknowledged the disparity in per capita income among

States and the rural and urban populations. The 8 lakhs income criteria

is higher than the per capital income of any of the States;

(c) The Rs 8 lakhs cap is on the higher end and does not cover the section

of those who are economically weaker. The affluent of the general

category would take away all the reserved seats available. Thus, the Rs

8 lakhs limit is over-inclusive;

(d) The Major Sinho Commission was constituted for the purpose of

determining the feasibility of providing reservation for the EWS and the

criteria for determining EWS category. The Commission submitted its

report in 2010 after extensive study and consultation with all States.

After undertaking such an extensive study, it recommended that the

criteria for the determination of EWS shall be families tha t fall under the

BPL category and the families exempted from payment of income tax

(that is Rs. 1.6 lakhs at the relevant time) ;

(e) The common income limit of Rs 8 lakhs does not include factors such

as income volatility, size of family, and high cost of living in certain

locations;

PART G

24

(f) The current non- taxable limit is Rs. 2.5 lakhs. A person who saves Rs.

2-3 lakh a year to avail benefits under Section 80C of the Income Tax

Act 1961 cannot be termed as ‘economically weak’;

(g) According to the Seventh Pay Commission, a class IV employee

receives a salary between Rs 18,000 to Rs, 30,0000. Therefore, the Rs

8 lakh limit is over-inclusive; and

(h) The Rs 8 lakhs limit is a top down approach and not a bottom up

approach. The Pandey Committee has erroneously interpreted the

recommendations of the Major Sinho Commission.

(iv) The Pandey Committee report does not have any reasons to reject the

recommendation of the Major Sinho commission. The report does not

sufficiently address the issues raised by this Court by the order dated

21 October 2021 because:

(a) The report acknowledges the absence of reliable data;

(b) The report was submitted within three weeks without undertaking any

study, unlike the Major Sinho Commission report which was submitted

after four years of extensive research by placing reliance on data,

survey reports, and feedbacks;

(c) The Pandey Committee did not consult with the State

Governments/Union Territories while framing the report. Without any

consultation, it is recommended that there should not be different

income limits for different States or areas based on purchasing power ;

(d) The report stated that the family income of Rs 8 lakh does not seem to

be over-inclusive as the ‘available data’ on actual outcomes does not

PART G

25

indicate over-inclusion. However, no data was submitted on ‘actual

outcomes’ to prove the claim;

(e) The justification in the report for not considering the varying costs of

living in metropolitan and non- metropolitan cities, rural and urban areas

for determining the EWS criteria was that it would create complications.

Such a justification is not reasonable;

(f) The 5 acres agricultural land asset exemption is arbitrary since no

exemption is made between wet and dry lands; and

(g) The Pandey committee has determined the criteria by ignoring the

relevant factors and taking into account irrelevant factors.

(v) The explanation to Article 15 states that for the purposes of Article 15 and Article 16, ‘economically weaker sections’ shall be notified by the

State from time to time on the basis of family income and other

indicators of economic disadvantage. Both the Union and the State

Governments have the power to determine the EWS. However, the

Pandey committee did not even consult the States before arriving at the

criteria. The Kerala Government constituted a commission for

determining the criteria for identifying the EWS. The Commission

chaired by Mr. K Sasidharan Nair submitted its report on 29 November

2019 recommending that Rs 4 lakhs gross family income must be used

to identify the EWS category in Kerala;

(vi) The open category seats are filled by the members of the general

category and the reserved categories. According to the Rajan

committee report submitted in Tamil Nadu, only 2.3 percent of the open

PART G

26

category seats are occupied by the forward community. By improperly

identifying the EWS, the injustice suffered by the forward community is

being compounded;

(vii) This Court in Indra Sawhney (supra) held that a class identified for the

purposes of reservation under Articles 15 and 16 must have common

traits. The EWS class identified by the impugned criteria does not

possess common traits; and

(viii) In the case of Shantistar Builders v. Narayan K. Totame

16

, a three-

judge Bench of this Court held that the ‘economic basis’ or the ‘means

test’ maybe adopted as a working guideline for determining ‘weaker

sections of the society’. In this case, a family having an annual income

not exceeding Rs 18,000 was considered to be belonging to the weaker

sections of the society.

25 Mr. Anand Grover, senior counsel appearing for the intervenor s made the

following submissions challenging the criteria for the determination of EWS:

(i) The explanation to Article 15 states that EWS must be determined on

the basis of ‘family income and other indicators of economic

disadvantage’. Therefore, the criteria used for the identification of the

class must encompass both the income and other indicators. However,

the criteria devised does not use any other indicator for economic

disadvantage;

(ii) The EWS category is identified by the income limit, and other

indicators are used only to exempt a class falling within the income

16

(1990) 1 SCC 520

PART G

27

criteria. Indicators such as housing, literacy, education, and health

have been ignored while identifying the EWS category;

(iii) The daily minimum wage in India is Rs 176 per day, which is not even

half of what is recommended by the Parliamentary Committee. Around

76 percent of India’s population does not receive a minimum wage.

Therefore, the criteria only identifies the creamy layer and not the

‘poorest of the poor’;

(iv) The income criteria must be the based on the income tax exemption

slab that is Rs. 2.5 lakhs. Considering that the cut off of Rs. 2.5 lakhs

was fixed in 2004, the amount may be increased by 10- 12 percent; and

(v) The Pandey committee report states that ‘despite the fact that the bulk

of the qualifying candidates are below Rs 5 lakhs, a somewhat higher

threshold is needed which ensures that deserving beneficiaries

affected by various factors such as income volatility, size of family, high

cost of living in certain locations are not excluded.’ No other

justification is given to not prescribe Rs. 5 lakhs as the income limit.

26 On behalf of the Union of India, the Solicitor General, Mr Tushar Mehta,

and the Additional Solicitor General, Mr KM Natraj, made the following

submissions:

(i) The rules of the game were not changed after the game had begun

since the reservation through the impugned notice issued on 29 July

2021 was introduced much prior to the date on which the exams were

conducted and before the commencement of the counselling process.

The NEET PG examination schedule is as under:

PART G

28

(a) Release of Information Brochure: 23 February 2021

(b) Commencement of Registration Process: 23 February 2021

(c) Last date of Registration: 15 March 2021

(d) Scheduled examination date: 18 April 2021

(e) Postponement for four months on: 03 May 2021

(f) New date of examinations announced on: 13 July 2021

(g) New date for examination: 11 September 2021

Clause 11.1 of the information bulletin issued on 23 February 2021 states

that reservation of PG seats shall be as per the norms of the Central

Government and the respective State Governments. Clause 11.2 states

that a separate handbook providing information on the counselling process

and applicable reservation shall be released by the designated counselling

authority for NEET-PG 2021. Therefore, the process begins only with the

commencement of the counselling process and not when the registration

closes;

(ii) The reservation in AIQ seats in terms of the notice dated 29 July 2021 has

been already implemented in MDS admissions for the current academic

year 2021- 2022 to comply with the order of this court dated 11 August

2021 in Debraj Samanta & Ors. v. Medical Counselling Committee

17

;

(iii) The EWS reservation is already in place and is now being extended to AIQ

seats for UG/PG admission in medical and dental courses. The EWS

reservation has already been implemented for IITs and Central educational

institutions, amongst others. The reservation is in compliance with The

17

WP (C) No. 680 of 2021

PART G

29

Constitution (One Hundred and Third Amendment) Act 2019 and is in

terms of the prescribed parameters of eligibility criteria, which, inter alia ,

includes gross income;

(iv) The reservation for EWS was introduced on broader considerations of

equality of opportunity and concerns of social justice. Around 550 EWS

students for MBBS and 1000 EWS students for PG medical courses would

benefit each year; from this reservation

(v) In the last six years, MBBS seats has been increased by 56 percent from

54, 348 seats in 2014 to 84, 649 seats in 2020 and the number of PG

seats has been increased by 80 percent from 30,191 seats in 2014 to 54,

275 seats in 2020. In the same duration, 179 medical colleges have been

established and now there are 558 medical colleges in the country. Thus,

the reservation for the EWS category will not be at the expense of other

categories;

(vi) The challenge to the constitutional validity of the Constitution (One

Hundred and Third Amendment) Act 2019 has been referred to a

Constitution Bench by the order dated 5 August 2020 in Janhit Abhiyan v.

Union of India & Ors.

18

. While referring the challenge to the Constitution

Bench, this Court did not stay the operation of the constitutional

amendment. Thus, the implementation of the constitutional amendment

through the notice dated 29 July 2021 cannot be questioned in the present

writ petitions;

18

WP (C) No. 55 of 2019

PART G

30

(vii) The criteria for reservation for admission in the AIQ seats is a question of

policy and is within the powers of Union Government . The criteria depends

on an overall assessment and survey of requirements of various categories

of persons to whom it is essential to provide facilities of higher education.

The contours of judicial review have been defined by this Court in BK

Pavithra v. Union of India

19

, which is the “Barium Chemicals Test”. Thus,

unless the criteria for EWS is so grossly unfair that no person with common

sense would arrive at it, there is no reason for judicial interference;

(viii) It is always possible to come up with an alternative criteria. However, the

judiciary is only required to assess whether the Government took into

account only relevant considerations, showed application of mind and did

not adopt an absurd view that no person with common sense would arrive

at;

(ix) The Union Government had undertaken an exercise for the determination

of the EWS criteria as stipulated in the OM, which was arrived at after due

deliberation within the Ministry of Social Justice and Empowerment and all

concerned stakeholders. Even before the OM came into existence, the

Government had set up the Major General Sinho Commission in 2005. The

Major Sinho Commission in its report dated July 2010 arrived at various

conclusions including that the creamy layer threshold among the OBCs

can serve as the basis to decide the upper limit for identifying the

economically backward category among the unreserved category. Even

then the criteria that applies to the OBC creamy layer is significantly

19

(2019) 16 SCC 129.

PART G

31

different from the criteria applicable for identifying the EWS. The criteria for

the latter is more stringent;

(x) The Pandey Committee has merely tweaked the Major Sinho Commission

report. It has also considered relevant material including the Socio

Economic and Caste Census 2011. Based on the material, it opined that

economic weakness is a complex issue and no single indicator can be

used to capture the level of poverty. The Pandey Committee observed that

a multi-pronged criteria requires complex and large- scale surveys. Since

EWS is a dynamic concept and keeps evolving, it is suitable to have an

income criteria. A criteria based on consumption patterns would lead to

people avoiding certain goods and services for the purpose of securing the

reservation benefit;

(xi) The Major Sinho Commission report recommended using the income tax

exemption limit. While the current income tax exemption limit is Rs 2.5

lakhs, the income of Rs 8 lakhs effectively falls within the income tax

exemption limit since a tax rebate is provided for income upto Rs 5 lakhs

and with sufficient savings and investments, such a tax rebate can be

obtained. Further, income tax exemption limit applies to individuals but the

8 lakhs income limit applies to families. If three members of a family

annually earn Rs 3 lakhs, they could fall outside the bracket of EWS;

(xii) If a lower income limit for identifying EWS is adopted, it will be

underinclusive. For being eligible for EWS reservation, the beneficiary

household income has to be less than Rs 8 lakhs in the preceding financial

PART G

32

year. Merely one year of windfall income earned by a household can push

them out of the EWS category;

(xiii) It is important to note that the state is not identifying the poor but rather

those belonging to the economically weaker category. Such people may be

above the poverty line;

(xiv) It will be difficult to adopt different income limits for urban and rural areas

because of internal migration and it would lead to implementation issues. A

uniform criteria can be used to provide reservation;

(xv) It will be discriminatory if EWS reservation is not implemented in medical

and dental colleges, when it is being implemented in other educational

institutions; and

(xvi) While the Pandey Committee has highlighted that the certification process

for determining the size of the residential plot is a cumbersome process

and has recommended doing away with the residential criteria for

exemption from the EWS category, it has also recommended that the new

criteria should apply prospectively. The EWS candidates would have

prepared their respective certificates to satisfy the EWS criteria which are

to be submitted once the counselling process begins for this admission

cycle. Thus, no hardship would be caused to them for applying this year.

On the other hand, if the new criteria is implemented from this year, it

would disturb the entire admission process since candidates who qualify

under the new criteria would have to be given additional time to satisfy it

and participate in the counselling process.

PART H

33

H. Analysis

27 It has been brought to our notice that the counselling for the MDS courses

has already begun, where the reservation for EWS in AIQ has been provided. On

behalf of the petitioners, Mr Shyam Divan has urged that a completely separate

exercise is conducted for MDS courses. He has submitted that a separate

notification is issued for admission to MDS courses and a different schedule for

examination and counselling is followed. Be that as it may, the medical and

dental courses have been treated on the same footing with respect to the

creation of the AIQ seats. The decision of this Court in Pradeep Jain v. Union of

India

20

which led to the inception of AIQ seats in State -run medical and dental

colleges specifically clarified that the observations and directions made with

regard to MBBS and MD/MS courses would equally apply to BDS and MDS

courses.

21

The notification dated 29 July 2021 introduced reservation for the OBC

and EWS categories for AIQ seats in both medical and dental courses. Thus,

there has been parity between medical and dental courses with regard to the

implementation of the AIQ and the reservation policy governing seat distribution.

Mr Divan has also submitted that a separate challenge

22

has been mounted to

the notification dated 29 July 2021 by doctors possessing a Bachelor’s degree in

Dental Surgery, which is being heard with the current batch of petitions. This

argument, in fact, supports the conclusion that while the reservation in both the

medical and dental courses has been challenged, any interim stay on the

implementation of reservation for the former in view of the pending counselling

20

1984 AIR 1420

21

Paragraph 23.

22

WP (C) No. 1105 of 2021

PART H

34

process, would creat a position of disparity between the two streams which have

always been treated alike. Therefore, a stay on reservation for this academic year

for medical courses would lead to differential treatment being meted out to dental

candidates who are similarly placed.

28 On behalf of the petitioners, it has been urged that the rules of the game

cannot be changed midway and hence, the notification dated 29 July 2021 is

liable to be set aside because it was issued after the registration for the

examination was closed. We have dealt with this argument in detail in the

judgement delivered on 20 January 2022 in the current batch of petitions on the

validity of OBC reservation in AIQ seats. The information bulletin dated 23

February 2021 issued for the purpose of conducting NEET examination

specifically mentioned that the counselling authority would issue a separate

handbook relating to details of counselling process and applicable reservation.

Thus, during the registration process which commenced on 23 February 2021

and ended on 15 March 2021, the candidates knew that the details relating to the

seat matrix would only be available during the counselling process. The

notification dated 29 July 2021 was issued much before the exams were

conducted and the counselling process was to begin. It cannot be said that the

rules for the game were set when the registrations closed on 15 March 2021 as

has been urged on behalf of the petitioners.

PART H

35

29 In the judgement pronounced on 20 January 2022 on the validity of OBC

reservation in AIQ seats, we have dealt with the challenge to the power of the

Union Government to implement reservation in AIQ seats. The Union of India in

view of Article 15 (5) and Article 15(6) of the Constitution has the power to

provide reservation in AIQ seats since these seats have been surrendered to the

Centre.

30 The argument of the petitioners on the validity of EWS reservation was not

limited to the permissibility of reservation in the AIQ seats. Rather, the petitioners

challenged the very criteria for the determination of the EWS , which would not

only require us to hear the matter at length but would also entail us to hear all

interested parties. However, in view of the delay in the counselling process due to

the pendency of this petition, we deem it necessary to allow the counselling

session tobegin with the existing criteria for theidentification of the EWS category.

Judicial propriety would not permit us to pass an interim order staying the criteria

for determination of the EWS category. It is a settled principle of law that in

matters involving challenge to the constitutionality of a legislation or a rule, the

Court must be wary to pass an interim order, unless the Court is convinced that

the rules are prima facie arbitrary.

23

However, at this stage, without hearing all

the interested parties at length on arguments such as (i) extent of judicial review

of materials relied on for providing reservation under Article 15; (ii) the power of

the States to determine EWS in view of the explanation to Article 15 and in view

of an alternative criteria proposed by the committee formed by the Government of

Kerala; and (iii) the meaning of EWS - the identification of the poor or the poorest,

23

Heart of Millions v. Union of India, 2014 (14) SCC 496

PART H

36

it would be im permissible for us to form a prima facie opinion on the alleged

arbitrariness of the criteria. These arguments are only indicative of the wide

range of arguments that have been raised before us, which would require proper

consideration as it has wide ranging constitutional and societal implications on

equality and the law.

31 Additionally, any judicial intervention which would have changed the stated

reservation policy for this academic year 2021- 2022 would have delayed the

admission process. The notification introducing reservation for OBC and EWS

was issued on 29 July 2021. Thereafter, a notice dated 6 August 2021 was

issued to allow candidates to change their category and EWS status. The window

for editing one’s status was between 16 August 2021 and 20 August 2021. The

exam was conducted on 11 September 2021. The candidates who qualify for the

EWS category would have prepared the necessary documentation to satisfy the

eligibility criteria for applying for reservation. Any change in the eligibility status

for reservation at this stage would have caused confusion and led to possible

litigation challenging such a change. This would have only caused further delay.

We are still in the midst of the pandemic and any delay in the recruitment of

doctors would impact the ability to manage the pandemic. Hence, it is necessary

to avoid any further delays in the admission process and allow counselling to

begin immediately. As a result, we allow the implementation of EWS reservation

in AIQ seats in NEET UG and PG seats for the academic year of 2021- 2022. The

EWS category shall be identified in view of the criteria in O.M No. 36039/1/2019.

The challenge to the validity of the criteria determined by the Pandey committee

PART H

37

for the identification of the EWS category shall be listed for final hearing in the

third week of March 2022.

……….….....................................................J.

[Dr Dhananjaya Y Chandrachud]

..…..….….....................................................J.

[AS Bopanna]

New Delhi;

January 20, 2022