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P. SATHASIVAM, J. – 2. Challenge in this appeal is to the judgment dated 05.02.2008
of the High Court of Punjab & Haryana at Chandigarh, dismissing the Civil Writ Petition No.
1431 of 2008, filed by the appellants herein for quashing of the prospectus for the
MD/MS/PG Diploma and MDS Courses issued by Maharshi Dayanand University, Rohtak,
Haryana for Academic Session 2007-2008 to the extent that it does not provide any
reservation of seats for Scheduled Caste/Scheduled Tribe candidates.
- Challenge in Writ Petition (C) No. 69 of 2009, filed under Art. 32 of the Constitution
of India, relates to the prospectus issued by the aforesaid University for the same courses for
Academic Session 2009-2010. - The brief facts leading to the filing of these matters are as under:
Vide Notification dated 12.11.2007, State of Haryana instructed Maharshi Dayanand
University, (`MDU’) Rohtak to conduct the entrance examination for admission in the
MD/MS/PG Diploma and MDS Courses in Government Medical and Dental Colleges in the
State of Haryana for the session 2008-2009 and declare results.
By the same notification, the State of Haryana also instructed Pt. B.D. Sharma PGIMS,
Rohtak to conduct the counseling and to finalize the admission in the said courses. In
pursuance of the said notification, MDU, Rohtak published a prospectus for holding entrance
examination for the MD/MS/PG Diploma and MDS Courses in Government Medical and
Dental Colleges in the State of Haryana for the year 2008-2009.
On 15.12.2007, the appellants made a representation to the Commissioner and Health
Secretary, Ministry of Health and Medical Education, Government of Haryana, Panchkula for
implementation of SC/ST reservation in Post-Graduate Courses (MD/MS/MDS/Diploma)
PGIMS in accordance with the guidelines issued by the State Government on 19.03.1999.
Since there was no response, the appellants preferred writ petition before the High Court for
quashing of the prospectus which was dismissed. Hence, the appellants have preferred this
appeal by way of special leave. - According to the appellants, on 07.08.2000, MDU published the prospectus for the
MBBS/ BDS/ BAMS/ BHMS Common Entrance Examination for admission to Medical/
Dental/Ayurvedic/Homeopathic Colleges/Institutions in Haryana notifying the seats for
admission to various categories providing 20% reservation for the members of Scheduled
Castes. On 17.09.2005, all the Institutions including All-India Institute of Medical Sciences
provided reservation in the Post-Graduate courses for the members of Scheduled Castes and
Scheduled Tribes. The Government Medical College, Patiala, Amritsar and Faridkot also
provided reservation in Post-Graduate Courses for the Academic Session, 2007. The
University of Delhi is also providing reservation to the members of the Scheduled Castes and
Scheduled Tribes. In addition to the same, counsel for the appellants submitted that some
States have also provided reservation in Post-Graduate Courses. On the other hand, learned
counsel for the respondents submitted that the State of Haryana has already provided
reservation at the graduate level courses i.e. MBBS/BDS/BAMS/BHMS etc. and there is no
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reservation in respect of Post-Graduate Courses and that is the reason the prospectus issued
for Post-Graduate Courses does not contain any clause for reservation. They also contended
that Article 15(4) is only an enabling provision and the State of Haryana, taking note of
various aspects, decided not to provide reservation for Scheduled Caste, Scheduled Tribe and
Other Backward Class candidates in Post-Graduate Courses. They also pointed out that there
cannot be any mandamus compelling the State to provide reservation for a particular class of
persons. - Article 15 mandates that the State shall not discriminate against any citizen on the
grounds only of religion, race, caste, sex, place of birth or any of them. Sub-clause (4) in both
Articles 15 and 16 is only an enabling provision for the State Government to bring forward a
legislation or pass an executive order for the benefit of socially and educationally Backward
Classes of citizens and for the Scheduled Castes and Scheduled Tribes. - Learned counsel for the appellants, in support of his claim, relied on a seven-Judge
Bench decision of this Court reported in State of Kerala v. N.M. Thomas [(1976) 2 SCC
310]. The issue therein relates to constitutionality of Rule 13AA of the Kerala State and
Subordinate Services Rules, 1958 granting exemption to members of Scheduled Castes and
Scheduled Tribes for a specified period from special and departmental tests in the matter of
promotion. By majority, their Lordships have upheld the validity of Rule 13AA of the Kerala
State and Subordinate Services Rules, 1958, and two consequential orders and set aside the
judgment of the High Court. In the said decision, the Court nowhere considered the effect and
implication of Article 15(4), particularly, whether it mandates the State to provide reservation
in Post-Graduate Courses or is only an enabling provision. - On the other hand, the consistent view of this Court is that Article 15(4) is only an
enabling provision and it is for the respective States either to enact a legislation or issue an
executive instruction providing reservation in Post-Graduate Courses. In Indra Sawhney v.
Union of India [1992 Supp (3) SCC 217], which is a nine-Judge Bench judgment of this
Court, while considering Articles 16(4)(1), 15(4), 14, 32, 340 and various other provisions,
Jeevan Reddy, J. speaking for the majority held:
“744. The aspect next to be considered is whether clause (4) is exhaustive of the
very concept of reservations? In other words, the question is whether any
reservations can be provided outside clause (4) i.e., under clause (1) of Article 16.
There are two views on this aspect. On a fuller consideration of the matter, we are of
the opinion that clause (4) is not, and cannot be held to be, exhaustive of the concept
of reservations; it is exhaustive of reservations in favour of backward classes alone.
Merely because, one form of classification is stated as a specific clause, it does not
follow that the very concept and power of classification implicit in clause (1) is
exhausted thereby. To say so would not be correct in principle. But, at the same time,
one thing is clear. It is in very exceptional situations, – and not for all and sundry
reasons – that any further reservations, of whatever kind, should be provided under
clause (1). In such cases, the State has to satisfy, if called upon, that making such a
provision was necessary (in public interest) to redress a specific situation. The very
presence of clause (4) should act as a damper upon the propensity to create further
classes deserving special treatment. The reason for saying so is very simple. If
reservations are made both under clause (4) as well as under clause (1), the vacancies
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available for free competition as well as reserved categories would be a
correspondingly whittled down and that is not a reasonable thing to do.” - In K. Duraisamy v. State of T.N. [(2001) 2 SCC 538], a three-Judge Bench, while
dealing with the reservation at the Post-Graduate level and super-speciality level, observed as
follows:-
“8. That the Government possesses the right and authority to decide from what
sources the admissions in educational institutions or to particular disciplines and
courses therein have to be made and that too in what proportion, is well established
and by now a proposition well settled, too. It has been the consistent and
authoritatively-settled view of this Court that at the super-speciality level, in
particular, and even at the postgraduate level reservations of the kind known as
“protective discrimination” in favour of those considered to be backward should be
avoided as being not permissible. Reservation, even if it be claimed to be so in this
case, for and in favour of the in-service candidates, cannot be equated or treated on
par with communal reservations envisaged under Articles 15(4) or 16(4) and
extended the special mechanics of their implementation to ensure such reservations
to be the minimum by not counting those selected in open competition on the basis of
their own merit as against the quota reserved on communal considerations.” - In AIIMS Student’s Union v. AIIMS [(2002) 1 SCC 428], while considering the
similar issue, it was held:-
“44. When protective discrimination for promotion of equalisation is pleaded, the
burden is on the party who seeks to justify the ex facie deviation from equality. The
basic rule is equality of opportunity for every person in the country, which is a
constitutional guarantee. A candidate who gets more marks than another is entitled to
preference for admission. Merit must be the test when choosing the best, according to
this rule of equal chance for equal marks. This proposition has greater importance
when we reach the higher levels and education like postgraduate courses.
Reservation, as an exception, may be justified subject to discharging the burden of
proving justification in favour of the class which must be educationally handicapped
- the reservation geared up to getting over the handicap. The rationale of reservation
in the case of medical students must be removal of regional or class inadequacy or
like disadvantage. Even there the quantum of reservation should not be excessive or
societally injurious. The higher the level of the speciality the lesser the role of
reservation.” Again it was held that:- “….. Permissible reservation at the lowest or
primary rung is a step in the direction of assimilating the lesser fortunates in the
mainstream of society by bringing them to the level of others which they cannot
achieve unless protectively pushed. Once that is done the protection needs to be
withdrawn in the own interest of protectees so that they develop strength and feel
confident of stepping on higher rungs on their own legs shedding the crutches.
Pushing the protection of reservation beyond the primary level betrays the bigwigs’
desire to keep the crippled crippled for ever….. Any reservation, apart from being
sustainable on the constitutional anvil, must also be reasonable to be permissible. In
assessing the reasonability, one of the factors to be taken into consideration would be
whether the character and quantum of reservation would stall or accelerate achieving
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the ultimate goal of excellence enabling the nation constantly rising to higher levels.
In the era of globalisation, where the nation as a whole has to compete with other
nations of the world so as to survive, excellence cannot be given an unreasonable goby and certainly not compromised in its entirety……”
- In Union of India v. R. Rajeshwaran [(2003) 9 SCC 294], direction was sought for
to apply the rule of reservation to the Scheduled Castes and Scheduled Tribes in respect of
those seats which are set apart for All-India pool in MBBS/BDS list. In the present context,
the following conclusion is relevant:-
“9. In Ajit Singh (II) v. State of Punjab this Court held that Article 16(4) of the
Constitution confers a discretion and does not create any constitutional duty and
obligation. Language of Article 15(4) is identical and the view in Comptroller and
Auditor General of India, Gian Prakash v. K.S. Jagannathan and Superintending
Engineer, Public Health v. Kuldeep Singh that a mandamus can be issued either to
provide for reservation or for relaxation is not correct and runs counter to judgments
of earlier Constitution Benches and, therefore, these two judgments cannot be held to
be laying down the correct law. In these circumstances, neither the respondent in the
present case could have sought for a direction nor the High Court could have granted
the same. - Hence, we allow the writ appeal transferred to this Court and set aside order
made in the writ petition. The appeal also shall stand disposed of accordingly.” - The principle behind Article 15(4) is that a preferential treatment can be given validly
when the socially and educationally backward classes need it. This article enables the State
Government to make provisions for upliftment of Scheduled Castes and Scheduled Tribes
including reservation of seats for admission to educational institutions. It was also held that
Article 15(4) is not an exception but only makes a special application of the principle of
reasonable classification. Article 15(4) does not make any mandatory provision for
reservation and the power to make reservation under Article 15(4) is discretionary and no writ
can be issued to effect reservation. Such special provision may be made not only by the
Legislature but also by the Executive. - Learned counsel for the appellants relying on the Constitution Bench decision of this
Court in Dr. Preeti Srivastava v. State of M.P. [(1999) 7 SCC 120], submitted that when it is
permissible to prescribe a lower minimum percentage of qualifying marks for the reserved
category candidates, as compared to the general category candidates, it is incumbent on the
part of the State Government to prescribe certain percentage for SC/ST candidates even for
the Post- Graduate Courses. On going through the decision, we are unable to accept the said
contention. In para 10 of the judgment, this Court has posed the following question for
consideration:-
“We have therefore, to consider whether for admission to the postgraduate
medical courses, it is permissible to prescribe a lower minimum percentage of
qualifying marks for the reserved category candidates as compared to the general
category candidates. We do not propose to examine whether reservations are
permissible at the postgraduate level in Medicine. That issue was not debated before
us, and we express no opinion on it. We need to examine only whether any special
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provision in the form of lower qualifying marks in PGMEE can be prescribed for the
reserved category.”
After discussing relevant aspects and earlier decisions this Court concluded:-
“In the premises, we agree with the reasoning and conclusion in Dr. Sadhna
Devi v. State of U.P. and we overrule the reasoning and conclusions in Ajay Kumar
Singh v. State of Bihar and Post Graduate Institute of Medical Education &
Research v. K.L. Narasimhan. To conclude: - We have not examined the question whether reservations are permissible at the
postgraduate level of medical education. - A common entrance examination envisaged under the regulations framed by
the Medical Council of India for postgraduate medical education requires fixing of
minimum qualifying marks for passing the examination since it is not a mere
screening test. - Whether lower minimum qualifying marks for the reserved category
candidates can be prescribed at the postgraduate level of medical education is a
question which must be decided by the Medical Council of India since it affects the
standards of postgraduate medical education. Even if minimum qualifying marks can
be lowered for the reserved category candidates, there cannot be a wide disparity
between the minimum qualifying marks for the reserved category candidates and the
minimum qualifying marks for the general category candidates at this level. The
percentage of 20% for the reserved category and 45% for the general category is not
permissible under Article 15(4), the same being unreasonable at the postgraduate
level and contrary to the public interest. - At the level of admission to the super speciality courses, no special provisions
are permissible, they being contrary to the national interest. Merit alone can be the
basis of selection.”
It is clear that first of all in Preeti Srivastava, this Court did not examine whether
reservation is permissible at the Post-Graduate level in Medicine. It is also clear that the Court
has dealt with only the question as to the prescribing lower minimum percentage of qualifying
marks for the reserved category candidates at the Post- Graduate Medical Courses and
ultimately it was concluded that the same is permissible, however, insofar as medical
education is concerned, it must be decided by the Medical Council of India. It is relevant to
mention that pursuant to the said decision the Medical Council of India (MCI' in short) has prescribed minimum qualifying marks as 50 per cent for thegeneral category candidates’ and
40 per cent for the `reserved category candidates’. In such circumstances, the argument based
on Preeti Srivastava, by the learned counsel for the appellants is liable to be rejected. - It is also useful to refer the judgment in State of Punjab v. Dayanand Medical
College and Hospital [(2001) 8 SCC 664], wherein similar contention as projected before us
by the counsel for the appellants was raised. In para 10 of the judgment in Preeti Srivastava it
was clarified that this Court was only paying attention to the question of fixing lower
minimum qualifying marks for reserved category candidates. In the same decision, it was
stated that such question must be decided by the Medical Council of India, since it affects the
standard of Post-graduate medical education. In State of T.N. v. S.V. Bratheep (Minor)
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[(2004) 4 SCC 513], this Court reiterated the same reasoning as stated in State of Punjab v.
Dayanand Medical College and Hospital. - In Ajit Singh (II) v. State of Punjab [(1999) 7 SCC 209], Constitution Bench of this
Court in paragraph 28 has held that Article 16(4) is only an enabling provision which reads as
under:
“On the face of it, the above language in each of Articles 16(4) and 16(4-A) is in
the nature of an enabling provision and it has been so held in judgments rendered by
Constitution Benches and in other cases right from 1963.” - Learned counsel for the appellants next contended that, inasmuch as even in All-India
Entrance Examination for Post-Graduate Courses, the Government of India itself has made a
provision for reservation for SC/ST candidates, the State of Haryana is bound to follow the
same and issue appropriate orders/directions providing reservation in the Post-Graduate
Courses. He further contended that the prospectus de hors any provision for reservation is bad
and is liable to be quashed. In our view, this contention is also liable to be rejected. It is true
that Government of India itself has made a provision for reservation of SC/ST categories.
This was a decision by the Government of India and it is applicable in respect of All-India
Entrance Examination for MD/MS/PG Diploma and MDS Courses, and reservation for
SC/ST candidates in All-India quota for PG seats. However, the same cannot automatically be
applied in other selections where State Governments have power to regulate. In fact, the
Government of Haryana, in the counter affidavit before the High Court, explained their
position that according to them, the matter regarding reservation of seats in the PG Courses
has been considered by the State Government from time to time and it has been decided that
keeping in view the recommendations of the Medical Council of India and precedents in the
other States, reservation of SC/ST in PG Courses is neither feasible nor warranted, as there is
already a reservation of 50 per cent of the total seats in MD/MS/PG Diploma and MDS
Course in the institutions of the State of Haryana on all-India basis entrance examination,
being conducted by AIIMS, New Delhi, and that the appellants had already availed the
benefit of reservation of seats in their qualifying examination of MBBS/BDS. They further
clarified that only the State Government is the Competent Authority to decide the reservation
in the State. The State Government did not prescribe any reservation for SC/ST and backward
classes, due to which it was not included in the prospectus. They also clarified that the
petitioners before the High Court were on the wrong impression that the Government of
Haryana has already taken a decision to make a reservation in admission to MD/MS/PG
Diploma and MDS Courses for SC/ST category. It was clarified that the Government of
Haryana has never granted the benefit of reservation to SC/ST category in admission to
MD/MS/PG Diploma and MDS Course. The Government of Haryana, for the first time,
considered and decided on 05.04.1988 that there will be no reservation in admission to
PG/Diploma courses. Again, in their letter dated 01.01.1991, reiterated that Government of
Haryana is not in favour of reservation for SC/ST categories in PG/Degree/Diploma Courses.
Again, by the letter dated 26.04.2002 reiterated that there will be no reservation for SC/ST
candidates at Post-Graduate level admission in PGIMS, Rohtak. It is pointed out that since
Government of Haryana has taken a conscious decision of not to make reservation for SC/ST
categories in admission at the Post-Graduate level, such a decision of the Government suffers
no infirmity. The other materials placed by the State shows that before taking such a decision,
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they considered the recommendations of the Medical Council of India and precedents/
decisions in other States and concluded that the reservation for SC/ST categories in PostGraduate Degree and Diploma Courses is not feasible in the State. Though, even at the PostGraduate level, reservation for SC/ST/Backward Community is permissible in view of the
specific decision by the State of Haryana not to have reservation for Scheduled Castes and
Scheduled Tribes at the Post-Graduate level, there cannot be any mandamus by this Court as
claimed by the appellants. After all, medical education is an important issue which should not
have any mandatory condition of this nature which may give rise to a situation against public
interest if so interpreted by the State Government as State Government is in a better position
to determine the situation and requirement of that particular State, as mandated by the
Constitution. - Finally, learned counsel for the appellants, in more than one occasion, relied on an
order dated 31.01.2007 of this Court in Writ Petition (C) No. 138 of 2006, Abhay Nath v.
University of Delhi. The operative part of the order is as follows:-
“The Additional Solicitor General pointed out that in the All India quota of 50%
seats, if 22.5% are reserved for SC/ST students, it would be difficult for the State to
give the entire percentage to reservation out of the 50% seats left for them to be filled
up. It is equally difficult for the DGHS to have entire 22.5% reservation out of the
50% of the seats allotted to be admitted in the All India Entrance Examination.
Therefore, it is suggested that the Union of India has decided to provide 22.5%
reservation for SC/ST candidates in All India Quota from the academic year 2007-
2008 onwards. The Union of India seeks clarification of the order passed in Budhi
Prakash Sharma v. Union of India passed on 28.02.2005, to the effect that 50%
seats for All India Quota shall exclude the reservation. We review that order and
make it clear that the 50% of the seats to be filled up by All India Entrance
Examination shall include the reservation to be provided for SC/ST students. To that
extent the order passed on 28.02.2005 is clarified.”
The above order makes it clear that the directions of this Court are applicable to
admission on All-India basis whereas the same have no bearing on the admissions meant for
State quota. Inasmuch as the Government of Haryana has not prescribed any reservation for
the Post- Graduate Courses, neither the University nor any other authority be blamed for
approving and publishing the prospectus which does not contain reservation for PostGraduate Courses. The clarificatory order of this Court in Abhay Nath is applicable for the
Institutes managed/run by the Central Government and unless the State Government takes any
decision for granting reservation in MD/MS/PG Diploma and MDS Courses, it cannot be
made applicable. As the State Government is competent to make the reservation to a
particular class or category, until it is decided by the State, as being a Policy matter, there
cannot be any direction to provide reservation at the PG level. The State of Haryana has
explained that reservation in under-Graduate Medical Courses is being provided strictly as per
their policy. The Post-Graduate Degree/Diploma in medical education is governed by
Medical Council. Even, the Medical Council of India has not followed strict adherence to the
rule of reservation policy in admission for SC/ST category at the Post-Graduate level. - As stated earlier, Article 15(4) is an enabling provision and the State Government is
the best judge to grant reservation for SC/ST/Backward Class categories at Post-Graduate
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level in admission and the decision of the State of Haryana not to make any provision for
reservation at the Post-Graduate level suffers no infirmity. In our view, every State can take
its own decision with regard to reservation depending on various factors. Since the
Government of Haryana has decided to grant reservation for SC/ST categories/Backward
Class candidates in admission at MBBS level i.e. under graduate level, then it does not mean
that it is bound to grant reservation at the Post-Graduate level also. As stated earlier, the State
Government, in more than one communication, has conveyed its decision that it is not in
favour of reservation for SC/ST/Backward Classes at Post-Graduate level. In such
circumstances, Court cannot issue mandamus against their decision and their prospectus also
cannot be faulted with for not providing reservation in Post-Graduate Courses. However, we
make it clear that irrespective of above conclusion, State of Haryana is free to reconsider its
earlier decision, if they so desire, and circumstances warrant in the future years. - In the result, the Civil Appeal as well as the Writ Petition fail and the same are
dismissed accordingly with no order as to costs.
