NEIL AURELIO NUNES & ORS. versus UNION OF INDIA & ORS on 20 January 2022

[2022] 11 S.C.R. 585

NEIL AURELIO NUNES & ORS.

v.

UNION OF INDIA & ORS.

(Writ Petition (C) No. 961 of 2021)

JANUARY 20, 2022

[DR. DHANANJAYA Y CHANDRACHUD ANDA. S. BOPANNA, JJ.]

Constitution of India – Arts. 15(1), 15(4), 15(5), 16(1) and16(4) – Reservation – National Eligibility cum Entrance Test (NEET)– Reservation for Other Backward Classes-OBC (non-creamy layer)in the All-India Quota (AIQ) seats in NEET for undergraduate andpostgraduate medical courses – Held: Reservation for OBCcandidates in the AIQ seats for UG and PG medical and dentalcourses is constitutionally valid – Articles 15(4) and 15 (5) are notan exception to Article 15 (1), which itself sets out the principle ofsubstantive equality (including the recognition of existinginequalities) – Merit cannot be reduced to narrow definitions ofperformance in an open competitive examination which onlyprovides formal equality of opportunity – Open competitiveexaminations do not reflect the social, economic and culturaladvantage that accrues to certain classes and contributes to theirsuccess in such examinations – High scores in an examination arenot a proxy for merit – Merit should be socially contextualized andreconceptualized as an instrument that advances social goods likeequality – In such a context, reservation is not at odds with meritbut furthers its distributive consequences – Articles 15(4) and 15(5)employ group identification as a method through which substantiveequality can be achieved – This may lead to an incongruity wherecertain individual members of an identified group that is being givenreservation may not be backward or individuals belonging to thenon-identified group may share certain characteristics ofbackwardness with members of an identified group – The individualdifference may be a result of privilege, fortune, or circumstancesbut it cannot be used to negate the role of reservation in remedyingthe structural disadvantage that certain groups suffer – Challengeto the constitutional validity of OBC reservation in AIQ seatsintroduced through the notice dated 29 July 2021 is rejected.

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AConstitution of India – Article 14, 15(1), 15(4), 16(4) –Reservation – Merit – Plea of the petitioners that at the level of PGcourses, a high degree of skill and expertise is required thus, suchopportunities must be available to the most meritorious and providingany reservation for PG seats would be detrimental to national interest– Held: This is not a novel argument – Special provisions (includingBreservation) made for the benefit of any class are not an exceptionto the general principle of equality – Special provisions are a methodto ameliorate the structural inequalities that exist in the society,without which, true or factual equality will remain illusory – Thebinary of merit and reservation has now become superfluous onceCSupreme Court has recognized the principle of substantive equalityas the mandate of Article 14 and as a facet of Articles 15 (1) and16(1) – The narrow definition of merit (that is, decontextualisedindividual achievement) hinders the realisation of substantiveequality.

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DConstitution of India – Reservation – Scheme of All-IndiaQuota (AIQ) seats – Development of – Petitioners argued thatSupreme Court in Pradeep Jain case and the subsequent cases hasheld that there shall be no reservation in the AIQ seats – Held:Scheme of AIQ was devised to allot seats in State-run medical anddental institutions in which students from across the country couldEcompete – Observations in Pradeep Jain that the AIQ seats must befilled by merit, must be read limited to merit vis-à-vis residencereservation – Supreme Court in Pradeep Jain did not hold thatreservation in AIQ seats is impermissible – Evolution of the AIQ inUG and PG medical and dental courses traced.FConstitution of India – Reservation – All-India Quota (AIQ)

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FConstitution of India – Reservation – All-India Quota (AIQ)seats – Power of executive to introduce reservation in AIQ seats –Petitioners argued that the Union Government should have filed anapplication before Supreme Court before notifying reservations inthe AIQ since the AIQ scheme is a creation of Supreme Court –Held: Argument is erroneous – The Union Government in AbhayGNath case had made a submission of its intention to providereservations in the AIQ for the SC and ST candidates since untilthen in view of the confusion on demarcation of the seat matrix,there was no clarity on whether reservations could be provided inthe AIQ – Thus, in Abhay Nath it was clarified that reservations areHpermissible in the AIQ seats – Therefore, the order in Abhay Nath was only clarificatory in view of the earlier observations in BuddhiPrakash Sharma – Interpreting the order to mean that the Union ofIndia sought the permission of Supreme Court before providingreservation would amount to aiding an interpretation that wouldfoster judicial overreach – The Union Government was not requiredto seek the permission of the Court before providing reservation inAIQ seats – Providing reservation in the AIQ seats is a policy decisionof the Government.

Constitution of India – Reservation – All-India Quota (AIQ)seats – Impugned notice providing reservation for OBC and EWScategories in the AIQ was issued on 29 July 2021, after theregistration for the examination had closed on 18 April 2021 –Plea of the petitioners that the rules of the examination could haveonly been changed before the last date for registration and as thecandidates registered for the exam having a particular seat matrixin mind, the change in the seat matrix after registration would bearbitrary – Held: Clause 11 of the information bulletin specifiesthat the reservation applicable to NEET-PG would be notified bythe counselling authority before the beginning of the counsellingprocess – Therefore, the candidates while applying for NEET-PGare not provided any information on the distribution of seat matrix– Such information is provided by the counselling authority onlybefore the counselling session is to begin – It thus cannot be arguedthat the rules of the game were set when the registration for theexamination closed.

Constitution of India – Reservation – The Constitution (OneHundred and Third Amendment) Act 2019 – Articles 15(6) and 16(6)– Criteria for the determination of the EWS for the ten percentreservation – Challenge to – Held: Challenge to the very criteriafor the determination of the EWS would not only require the matterto be heard at length but also to hear all interested parties – However,in view of the delay in the counselling process due to the pendencyof this petition, it is deemed necessary to allow the counsellingsession to begin with the existing criteria for the identification ofthe EWS category – Judicial propriety does not permit to pass aninterim order staying the criteria for determination of the EWScategory – It is a settled principle of law that in matters involvingchallenge to the constitutionality of a legislation or a rule, the Courtmust be wary to pass an interim order, unless the Court is convinced AB

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Athat the rules are prima facie arbitrary – However, at this stage,without hearing all the interested parties at length on arguments, itwould be impermissible to form a prima facie opinion on the allegedarbitrariness of the criteria – Further, in the midst of the pandemic,any delay in the recruitment of doctors would impact the ability tomanage the pandemic – Hence, it is necessary to avoid any furtherBdelays in the admission process and allow counselling to beginimmediately – The implementation of EWS reservation in AIQ seatsin NEET UG and PG seats for the academic year of 2021-2022 isallowed – EWS category be identified in view of the criteria in O.MNo. 36039/1/2019 – Challenge to the validity of the criteriaCdetermined by the Pandey Committee for the identification of theEWS category be listed for final hearing.

Conclusion

Directing the matter to be listed for final hearing onchallenge to the validity of the criteria determined by the Pandeycommittee for the identification of the EWS category, the CourtD

HELD: 1.1 On its part, this Court initially subscribed tothe 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 tothis general principle, advancing the cause of social justice. ThisECourt sought to balance these competing imperatives. In suchan understanding, merit is equated to formal equality ofopportunity which has to be balanced against the concerns ofsocial justice through reservation. In MR Balaji v. State of Mysorea Constitution Bench of this Court observed that Article 15 (4) isan exception to Article 15 (1), which was introduced ¯becauseFthe interests of the society at large would be served by promotingadvancements of the weaker elements in the society. However,since Article 15 (4) (or reservation) was considered at odds withthe notion of formal equality under Article 15 (1), which is broadlyunderstood as complying with the principle of merit, this CourtGobserved that there should be a cap on reservations, which itspecified generally should be 50 percent. This view was followedby this Court in subsequent judgements where a special provisionmade for the benefit of a class was seen as a deviation from theprinciple of formal equality. However, the dominant view of thisCourt was challenged by the Justice R Subba Rao in his dissentH

in T. Devadasan v. Union of India, where the learned judge statedthat Article 16 (4) is not an exception but rather a facet of Article16 (1), which seeks to redress the historical disadvantage sufferedby certain communities. The view expressed by Justice SubbaRao was adopted by this Court in State of Kerala v. NM Thomas,which transformed the equality jurisprudence in India from thatof formal equality to substantive equality; thus, also changing ourunderstanding of reservations. The majority of the judgesaccepted that special provisions (including reservation) made forthe benefit of any class are not an exception to the generalprinciple of equality. Special provisions are a method toameliorate the structural inequalities that exist in the society,without which, true or factual equality will remain illusory. JusticeKK Mathew in his concurring opinion observed that whileequality under Article 16 (1) is individual-centric (which was theview of the majority – Justice Mathew and Justice Beg‘s majorityopinions, and Justice Khanna and Justice Gupta‘s dissents), themanner in which it is to be achieved is through the identificationof groups that do not enjoy equal access to certain rights andentitlements. Thus, the learned judge envisaged that equality ofindividuals is to be achieved by addressing the structural barriersfaced by certain classes of citizens, which he called the “conditionsand circumstances [that] stand in the way of their equal access tothe enjoyment of basic rights or claims”. Justice Krishna Iyerand Justice Fazal Ali in their concurring opinions went a stepfurther to argue that the content of Article 16 (1) is not individual-centric rather it aims to provide equality of opportunity to sectionsthat face structural barriers to their advancement. Justice KrishnaIyer invoked Article 46 of the Constitution, which althoughunenforceable, was employed for giving effect to Article 16 (1).In his opinion both Articles 16 (1) and 16 (4) function to equalisegroup inequalities albeit in different contexts. Justice Fazal Aliin his concurring opinion noted that equality of opportunity underArticle 16 (1) entails the removal of barriers faced by certainclasses of society. They cannot be denied the right to equalityand relegated to suffer backwardness only because they do notmeet certain artificial standards set up by institutions. [Paras 18-21][619-D-G; 620-E-F; 621-F; 622-E-G; 623-G-H; 624-A-B-F]

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AT. Devadasan v. Union of India (1964) 4 SCR 680; CARajendran v. Union of India (1968) 1 SCR 721; Stateof Kerala v. NM Thomas (1976) 2 SCC 310 : 1976 (1)SCR 906; Indira Sawhney v. Union of India 1992 Supp(3) SCC 217 : [1992] 2 Suppl. SCR 454 – followed.

BMR Balaji v. State of Mysore [1963] Supp 1 SCR 439;Dr Jaishri Laxmanrao Patil v. Chief Minister (2021) 8SCC 1 – referred to.

1.2 The binary of merit and reservation has now becomesuperfluous once this Court has recognized the principle ofCsubstantive equality as the mandate of Article 14 and as a facet ofArticles 15 (1) and 16(1). An open competitive exam may ensureformal equality where everyone has an equal opportunity toparticipate. However, widespread inequalities in the availabilityof and access to educational facilities will result in the deprivationDof certain classes of people who would be unable to effectivelycompete in such a system. Special provisions (like reservation)enable such disadvantaged classes to overcome the barriers theyface in effectively competing with forward classes and thusensuring substantive equality. The privileges that accrue toforward classes are not limited to having access to qualityEschooling and access to tutorials and coaching centres to preparefor a competitive examination but also includes their socialnetworks and cultural capital (communication skills, accent, booksor academic accomplishments) that they inherit from their family.The cultural capital ensures that a child is trained unconsciouslyFby the familial environment to take up higher education or highposts commensurate with their family’s standing. This works tothe disadvantage of individuals who are first-generation learnersand come from communities whose traditional occupations donot result in the transmission of necessary skills required toGperform well in open examination. They have to put in surpluseffort to compete with their peers from the forward communities.On the other hand, social networks (based on communitylinkages) become useful when individuals seek guidance andadvise on how to prepare for examination and advance in theircareer even if their immediate family does not have the necessaryH

exposure. Thus, a combination of family habitus, communitylinkages and inherited skills work to the advantage of individualsbelonging to certain classes, which is then classified as meritreproducing and reaffirming social hierarchies. [Para 24][627-B-G; 628-A-B]

BK Pavithra v. Union of India (2019) 16 SCC 129:2019] 7 SCR 1086 – relied on.

1.3 This is not to say that performance in competitiveexamination or admission in higher educational institutions doesnot require a great degree of hard work and dedication but it isnecessary to understand that merit is not solely of one’s ownmaking. The rhetoric surrounding merit obscures the way in whichfamily, schooling, fortune and a gift of talents that the societycurrently values aids in one’s advancement. Thus, theexclusionary standard of merit serves to denigrate the dignity ofthose who face barriers in their advancement which are not oftheir own making. But the idea of merit based on scores in anexam requires a deeper scrutiny. While examinations are anecessary and convenient method of distributing educationalopportunities, marks may not always be the best gauge ofindividual merit. Even then marks are often used as a proxy formerit. Individual calibre transcends performance in an examination.Standardized measures such as examination results are not themost accurate assessment of the qualitative difference betweencandidates. At the best, an examination can only reflect the currentcompetence of an individual but not the gamut of their potential,capabilities or excellence, which are also shaped by livedexperiences, subsequent training and individual character. Themeaning of merit itself cannot be reduced to marks even if it is aconvenient way of distributing educational resources. Whenexaminations claim to be more than systems of resource allocation,they produce a warped system of ascertaining the worth ofindividuals as students or professionals. Additionally, since successin examinations results in the ascription of high social status as ameritorious individual, they often perpetuate and reinforce theexisting ascriptive identities of certain communities as intellectualand competent by rendering invisible the social, cultural andeconomic advantages that increase the probabilities of success.

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AThus, the meaning of merit needs to be reconceptualized. Forinstance, if a high-scoring candidate does not use their talents toperform good actions, it would be difficult to call them meritoriousmerely because they scored high marks. The propriety of actionsand dedication to public service should also be seen as markersof merit, which cannot be assessed in a competitive examination.BEqually, fortitude and resilience required to uplift oneself fromconditions of deprivation is reflective of individual calibre. [Para25][628-G; 629-A-C; 630-B-E]

Michael Sandel, Tyranny of Merit: What‘s become ofthe Common Good (Penguin Boks), AshwiniCDeshpande, Social Justice Through Affirmative Actionin India: An Assessment, in Jeannette Wicks-Limand Robert Pollin (editors) Capitalism on Trial:Explorations in the Tradition of Thomas Weisskopf,Publisher: Edward Elgar Publishing Inc.D(Northampton, MA), 2013, Satish Deshpande, Pass,Fail, Distinction: The Examination as a SocialInstitution. Marjorie Sykes Memorial Lecture,Regional Institute of Education, Ajmer, 3rd March,2010. Published by the National Council forEEducational Research and Training, New Delhi –referred to.

1.4 It is important to clarify here that after the decision inNM Thomas there is no constitutional basis to subscribe to thebinary of merit and reservation. If open examinations presentFequality of opportunity to candidates to compete, reservationsensure that the opportunities are distributed in such a way thatbackward classes are equally able to benefit from suchopportunities which typically evade them because of structuralbarriers. This is the only manner in which merit can be ademocratizing force that equalizes inherited disadvantages andGprivileges. Otherwise claims of individual merit are nothing buttools of obscuring inheritances that underlie achievements. Ifmerit is a social good that must be protected, the content of meritmust first be critically examine. Scores in an exam are not thesole determinant of excellence or capability. Even if for the sake H

of argument, it is assumed that scores do reflect excellence, it isnot the only value that is considered as a social good. Thedistributive consequences of merit must be looked at.Accordingly, how merit is assessed should also encapsulate if itmitigates or entrenches inequalities. An oppositional paradigmof merit and reservation serves to entrench inequalities byrelegating reserved candidates to the sphere of incompetence,and diminishing their capabilities. While examinations are anecessary and convenient method to allocate educationalresources, they are not effective markers of merit. The way meritis understood should not be limited to individual agency or ability(which in any event is not solely of our own doing) but it shouldbe envisioned as a social good that advances equality becausethat is the value that our Constitution espouses. It is importantto note that equality here does not merely have a redistributivedimension but also includes recognizing the worth and dignity ofevery individual. The content of merit cannot be devoid of whatis valued in society. Based on the above discussion, it is difficultto accept the narrow definition of merit (that is, decontextualisedindividual achievement). Such a definition hinders the realisationof substantive equality. [Paras 27 and 28][633-D-G; 634-F-G; 635-A]

Amartya Sen, “Merit and Justice” in Arrow KJ, et al(eds), Meritocracy and Economic Inequality(Princeton University Press 2000) – referred to.

1.5 Coming to the issue of whether reservation can bepermitted in PG courses, it is evident Article 15 (5) does notmake a distinction between UG and PG courses. The Constitutionenables the State to make special provisions for the advancementof socially and educationally backward classes for admission toeducational institutions at both the UG and PG levels. While oncertain occasions, this Court has remarked that there cannot beany reservation in SS courses, this Court has never held thatreservations in medical PG courses are impermissible. In PradeepJain, this Court did not hold that reservation in PG courses isaltogether impermissible. It was urged on behalf of the petitionersthat for many individuals PG is the end of the road and therefore,the PG courses should be equated with SS courses and no ABC

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Areservation should be allowed in PG. It is difficult to accept thisargument when this Court has time and again permittedreservation in PG courses. This argument merely seeks to createan artificial distinction between the courses offered at the PGlevel. Further, only certain medical fields do not have SS coursesand on the basis of that it cannot be deemed that reservation isBimpermissible in PG as a whole. Crucially, the issue here iswhether after graduation, an individual is entitled to reservationon the ground that they belong to a class that suffers from socialand educational backwardness. It cannot be said that the impactof backwardness simply disappears because a candidate has aCgraduate qualification. Indeed, a graduate qualification may providecertain social and economic mobility, but that by itself does notcreate parity between forward classes and backward classes. Inany event, there cannot be an assertion of over-inclusion whereundeserving candidates are said to be benefitting fromreservation because OBC candidates who fall in the creamy layerDare excluded from taking the benefit of reservation. There is noprohibition in introducing reservation for socially andeducationally backward classes (or the OBCs) in PG courses.[Para 29][635-B, D-E; 636-A-D]

Dr Preeti Srivastava v. State of Madhya Pradesh (1999)E7 SCC 120 : [1999] 1 Suppl. SCR 249; AIIMS StudentUnion v. AIIMS 2002 (1) SCC 428 : [2001] 2 Suppl.SCR 79; Saurabh Chaudri v. Union of India (2003) 11SCC 146 : [2003] 5 Suppl. SCR 152 – referred to.

2.1 Having traced the evolution of the AIQ in UG and PGFmedical and dental courses, the following questions are answered:whether this Court in Pradeep Jain held that the AIQ seats thatwere to be filled by an open all- India examination should be freeof reservation for the socially and educationally backward classes,and SC and ST as enabled by Article 15(4); and (ii) whetherGreservation in the AIQ can be provided only pursuant to adirection of this Court. This Court in Pradeep Jain was decidingon the constitutional validity of reservation based on domicile/residence. Having held that residence based reservation isconstitutionally valid, the next question that this Court was taskedwith was adjudicating the quantum of residence-based reservationH

that could be permitted. Referring to the decision of this Courtin Jagdish Saran v. Union of India, it was held that there cannotbe wholesale reservation (that is, 100 percent reservation). Itwas observed that a certain percentage of seats must be filled byopen merit by an all-India examination without reservation basedon residence. The Medical Education Review Committee hadsuggested that 75 percent of the seats in a medical college shallbe reserved for residents of the State. This Court decided that itwould be fair to reserve 70 percent of the seats for residents ofthe State. Therefore, 30 percent of the seats were to be filledthrough an all-India Examination. This would mean that candidatesfrom all across the country could compete against the 30 percentseats available in State run medical colleges. In this context, thisCourt had observed, “such reservation should in no event exceedthe outer limit of 70 per cent of the total number of open seatsafter taking into account other kinds of reservations validly made”(paragraph 21). The Bench further observed that at least 30percent of the open seats shall be available for admission ofstudents on all-India basis irrespective of the State or Universityfrom which they come and such admissions shall be granted purelyon merit on the basis of either all-India entrance examination orentrance examination to be held by the State (paragraph 21).The observation of this Court that AIQ seats must be filled purelyon the basis of merit, cannot be interpreted to mean that thereshall be no reservations in the AIQ seats. Merit must be sociallycontextualised and reconceptualized according to its distributiveconsequences where it furthers substantive equality in terms ofArticles 15 (4) and 15 (5) of the Constitution. The reference tomerit in paragraph 21 of the judgment must be read with theprevious observations made in the judgment. [Paras 44 and45][650-E-G; 651-A-D]

Dr Pradeep Jain v. Union of India (1984) 3 SCC 654 :[1984] 3 SCR 942 – clarified.

Jagdish Saran v. Union of India, 1980 AIR 820 : [1980]2 SCR 831 – referred to 2.2 While discussing the constitutional validity of domicile-reservation, it was observed that selection of candidates foradmission based on the all-India open examination would further ABC

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Amerit since it would permit the selection of the ‘best minds inthe country’. In this context, it was observed that claims thatwould weigh with this Court in justifying the departure from theprinciple of merit-based selection are: (i) claim of State interest,where the students by view of their residence are expected tosettle down and serve their State; and (ii) the regions’ claim ofBbackwardness (paragraph 16). Further, it was observed thatthough theoretically, admissions in medical colleges should bebased on an all-India examination since it would further meritand would provide equality of opportunity to candidates acrossthe country, keeping in view the differing levels of social,Ceconomic, and educational development in different areas, factualequality would not be attained. Therefore, the AIQ seats shall befiled through an all-India examination purely on merit, must beinterpreted only with reference to the discussion made onresidence-based reservation and the necessity of an all-Indiaexamination for admission to medical and dental courses.DReferences to ‘merit’ must therefore be read in the context ofmerit vis-à-vis residence reservation. This is further evident fromthe observation in paragraph 21 of the judgment where it wasobserved that “atleast 30 per cent of the open seats shall beavailable for admission of students on all-India basis irrespective

Eof the State or university from which they come and suchadmissions shall be granted purely on merit on the basis of eitherall-India entrance examination or entrance examination to be heldby the State’. The Bench thought it fit that admission through anall-India entrance examination would further merit, enabling thebest minds all over the country to study medicine. This aspectFwas further clarified by the Bench in Dinesh Kumar (I) where thisCourt observed that the Union Government and the MedicalCouncil for India had not taken any initiative to conduct an all-India entrance examination for admissions to the AIQ seats. Theintention of this Court in Pradeep Jain in creating an AIQ wasGsolely to provide candidates from across the country theopportunity to study medicine in colleges in other parts of thecountry as well, owing to the unequal number of medical colleges(and opportunities) in different States. [Paras 46 and 47][651-F-H; 652-A-D; 653-B-D]

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Dinesh Kumar (I) v. Motilal Nehru Medical College (1985) 3SCC 22 : [1985] 1 Suppl. SCR 41 – discussed.

2.3 Reference was made to reservation of backward classesonly for the limited purpose of determining the seat matrix. Theobservation in paragraph 21 in Pradeep Jain on the calculation ofseat matrix was clarified in Dinesh Kumar (I). The Bench hadclarified that after reservations (for the SC, ST and OBC providedby the States) validly made, 30 percent of the remaining seatswould be reserved for AIQ. Therefore, according to theclarification in Dinesh Kumar(I) on the demarcation of seats, thefirst bifurcation should be between reserved and non-reservedseats, and the seats remaining in the open category must bebifurcated into State Quota and AIQ. It was thus, a three-foldvertical reservation, with the reserved category not beingconsidered within either the AIQ or the State Quota. The logicalfallacy of this method of demarcation of seats is that differentStates provide varying percentages of reservation. Therefore,the total percentage of unreserved seats would inversely dependon the percentage of reservation provided by the State. The Stateof Tamil Nadu raised this objection in Dinesh Kumar (II). Pursuantto this, it was held that the AIQ seats shall be determined withoutexcluding any reservation validly made. The seats were firstbifurcated to State quota and AIQ, and the vertical and horizontalreservations (for example, for persons with disabilities) wereaccommodated within the State quota. When the judgment inDinesh Kumar (II) was pronounced, the Union Government hadnot yet made any decision on providing reservation in AIQ seats.It was subsequently in 2009 that the Union Government hadtaken a policy decision to provide reservation for the SC and STcategories in the AIQ. It is important to note that in Jayakumarand Rajeshwaran, the petitioners had sought a direction from thisCourt for providing reservation in the AIQ seats. In Rajeshwaran,this Court declined to ascertain if a person would be entitled toreservation in the AIQ seats. It was observed that if reservationsfor SC and ST categories is to be provided in the AIQ seats, itwould cause difficulty in adjusting seats since the State and theCentral lists would differ. However, when the Union Governmentsubmitted before this Court in Abhay Nath that it had taken thedecision to reserve seats in the AIQ, it was clarified that there AB

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Awas no impediment against the implementation of suchreservation. In Buddhi Prakash Sharma, there was a slightdeviation from the settled jurisprudence. This Court had heldthat the total number of PG seats in AIQ would be 50 percent ofthe total seats without any exclusion for reservation. The Benchhad interpreted the observation in Dinesh Kumar (II) that theBAIQ seats would be determined without excluding reservationsto mean that there would be no reservation in the AIQ. Therefore,since, Pradeep Jain did not preclude the AIQ seats fromreservation, a three-Judge Bench in Abhay Nath clarified thatthe 50 percent AIQ seats in PG medical and dental seats wouldCbe inclusive of reservation for SC and ST categories. [Paras 48-51][653-E, G-H; 654-A-C, E-H; 655-A-B]

Dinesh Kumar (II) v. Motilal Nehru Medical College(1986) 3 SCC 727 : [1986] 3 SCR 345; Union of Indiav. Jayakumar (2008) 17 SCC 478; Union of India v. R.DRajeshwaran (2003) 9 SCC 294; Buddhi PrakashSharma v. Union of India (2005) 13 SCC 61 –discussed.

3. In Abhay Nath, the Union Government had apprised thisCourt of its decision to provide reservation for the SC and STEcategories in the AIQ. It had then, as a policy decision decidedto only provide reservation for the SC and ST categories. TheParliament enacted the Central Educational Institutions(Reservation in Admission) Act 2006 in view of the enablingprovision in Article 15(5). Section 3 stipulates that there shall be15 percent reservation for the SC, 7.5 percent reservation forFthe ST, and 27 percent reservation for the OBC category inCentral Educational Institutions. A Constitution Bench in AshokaKumar Thakur v. Union of India upheld the Constitutional validityof 27 percent reservation for the OBC category provided underthe Act of 2006. Though the Act of 2006 would not be applicableto the seats earmarked for AIQ in State-run institutions since itGwould not fall within the definition of a Central educationalinstitution under the Act, the Union of India in view of Article15(5) has the power to provide reservations for OBCs in theAIQ seats. It is not tenable for the States to provide reservationin the AIQ seats since these seats have been surrendered’ toH

the Centre. It would also lead to the anomaly highlighted in DineshKumar (II) since the percentage of reservation provided bydifferent States differ, which would lead to an unequal percentageof seats available in the AIQ in different States. This is also coupledwith the fact that the SC, ST and OBC lists are not uniform acrossStates. Thus, it is the Union Government’s prerogative tointroduce reservation in AIQ seats. [Para 53][655-F-H; 656-A-D]

Ashoka Kumar Thakur v. Union of India (2008) 6 SCC1: [2008] 4 SCR 1; Abhay Nath v. University of Delhi(2009) 17 SCC 705 – referred to.

4. The impugned notice providing reservation for the OBCand EWS categories in the AIQ seats was issued after theregistration had closed but before the exam was conducted.Clause 11 of the information bulletin specifies that the reservationapplicable would be notified by the counselling authority beforethe beginning of the counselling process, unlike the facts in DrPrerit Sharma. The candidates while applying for NEET-PG arenot provided any information on the distribution of the seat matrix.Such information is provided by the counselling authority onlybefore the counselling session is to begin. [Para 58][659-F-G;660-B-C]

Dr Prerit Sharma v. Dr Bilu Civil Appeal No. 3840 of2020 – distinguished.

Dr Prerit Sharma v. Dr Bilu Civil Appeal No. 3840 of2020 – distinguished.

5. Conclusion- In view of the discussion above it is heldthat the reservation for OBC candidates in the AIQ seats for UGand PG medical and dental courses is constitutionally valid forthe following reasons: (i) Articles 15(4) and 15 (5) are not anexception to Article 15 (1), which itself sets out the principle ofsubstantive equality (including the recognition of existinginequalities). Thus, Articles 15 (4) and 15 (5) become arestatement of a particular facet of the rule of substantive equalitythat has been set out in Article 15 (1); (ii) Merit cannot be reducedto narrow definitions of performance in an open competitiveexamination which only provides formal equality of opportunity.Competitive examinations assess basic current competency toallocate educational resources but are not reflective of excellence,capabilities and potential of an individual which are also shaped AB

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Aby lived experiences, subsequent training and individualcharacter. Crucially, open competitive examinations do not reflectthe social, economic and cultural advantage that accrues to certainclasses and contributes to their success in such examinations;(iii) High scores in an examination are not a proxy for merit. Meritshould be socially contextualized and reconceptualized as anBinstrument that advances social goods like equality that we as asociety value. In such a context, reservation is not at odds withmerit but furthers its distributive consequences; (iv) Articles 15(4) and 15 (5) employ group identification as a method throughwhich substantive equality can be achieved. This may lead to anCincongruity where certain individual members of an identifiedgroup that is being given reservation may not be backward orindividuals belonging to the non-identified group may share certaincharacteristics of backwardness with members of an identifiedgroup. The individual difference may be a result of privilege,fortune, or circumstances but it cannot be used to negate theDrole of reservation in remedying the structural disadvantage thatcertain groups suffer; (v) The scheme of AIQ was devised toallot seats in State-run medical and dental institutions in whichstudents from across the country could compete. Theobservations in Pradeep Jain that the AIQ seats must be filled Eby merit, must be read limited to merit vis-à-vis residencereservation. This Court in Pradeep Jain did not hold thatreservation in AIQ seats is impermissible; (vi) The Union of Indiafiled an application before this Court in Abhay Nath placing thepolicy decision of the Government to provide reservation for theSC and ST categories in the AIQ seats since until then in view ofFthe confusion on demarcation of seat matrix, there was no clarityon whether reservations could be provided in the AIQ seats.The Union Government was not required to seek the permissionof this Court before providing reservation in AIQ seats.Therefore, providing reservation in the AIQ seats is a policyGdecision of the Government, which will be subject to the contoursof judicial review similar to every reservation policy; (vii) It wasclarified in Dinesh Kumar (II) that the total seats demarcated forAIQ shall be determined without excluding reservation as wasearlier directed by Pradeep Jain and clarified in Dinesh Kumar(I). However, this Court in Buddhi Prakash Sharma hadH

erroneously construed the clarification in Dinesh Kumar (II) tomean that there should be no reservation in AIQ seats. Therefore,the order in Abhay Nath was only clarificatory in view of theobservations in Buddhi Prakash Sharma; and (viii) Clause 11 ofthe information bulletin specifies that the reservation applicableto NEET-PG would be notified by the counselling authority beforethe beginning of the counselling process. Therefore, thecandidates while applying for NEET-PG are not provided anyinformation on the distribution of seat matrix. Such informationis provided by the counselling authority only before thecounselling session is to begin. It thus cannot be argued that therules of the game were set when the registration for theexamination closed. The challenge to the constitutional validityof OBC reservation in AIQ seats introduced through the noticedated 29 July 2021 is rejected. [Para 59][660-D-H; 661-A-H; 662-A-D]

Manjusree v. State of AP (2008) 3 SCC 512 : [2008]2 SCR 1025; Maharashtra State Road TransportCorporation v. Rajendra Bhimrao Mandve (2011) 10SCC 51; Umrao Singh v. Punjabi University (2005) 13SCC 365 : [2005] 5 Suppl. SCR 530; Tej PrakashPathak v. Rajasthan High Court (2013) 4 SCC 540 –distinguished.

Saloni Kumari v Director General Health ServicesWP(C) No 596/2015; Gulshan Prakash v. State ofHaryana (2010) 1 SCC 477: [2009] 16 SCR 1; AshokaKumar Thakur v. Union of India (2007) 4 SCC 361:2007 (4 ) SCR 493; State of U.P v. Pradip Tandon[1975] 2 SCR 761; Nookavarapu Kanakadurga Deviv. Kakatiya Medical College AIR 1972 AP 83; JagdishSaran v. Union of India, 1980 AIR 820 : [1980] 2 SCR831; Dr Sandeep Sadashivrao v. Union of India (2016)2 SCC 328 : [2015] 14 SCR 328 – referred to.

Indra Sawhney v. Union of India (AIR 1993 SC 477) :[1992] 2 Suppl. SCR 454; Janhit Abhiyan v. Union ofIndia WP (C) 55/ 2019; Shantistar Builders v. NarayanK. Totame (1990) 1 SCC 520; Debraj Samanta & Ors.v. Medical Counselling Committee WP (C) No. 680 of A

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[2022] 11 S.C.R.

A2021; B K Pavithra v. Union of India (2019) 16 SCC129 : [2019] 7 SCR 1086; Pradeep Jain v. Union ofIndia 1984 AIR 1420 : [1984] 3 SCR 942; Heart ofMillions v. Union of India, 2014 (14) SCC 496 –referred to.

BVolume 7, Constituent Assembly of India Debates,30 November 1948, available at https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/19 48-11-30, Volume 9, ConstituentAssembly of India Debates, 23 August 1949, availableat https://www.constitutionofindia.net/constitution_Cassembly_debates/volume/9/949-08-23, K.V Syamprasad,Merit and caste as cultural capital: Justifying affirmativeaction for the underprivileged in Kerala, India, Journalfor Critical Education Policy Studies, Vol 17, p.50-81(2019);. The Bench noticed the judgment in State ofDHaryana v, Subash Chander Marwaha, (1974) 3 SCC220 where the Supreme Court upheld the decision ofthe State to not appoint all candidates who had securedthe minimum percentage of marks.

Case Law Reference

EIn the Judgment:

NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS.

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.961 of 2021.

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)With G

Writ Petition (C) Nos. 967, 1002, 1021 and 1105 of 2021.

V. Krishnamurthy AAG, Arvind Datar, Maninder Singh, A.Mariarputham, Sr. Advs., Subodh S. Patil, Vivek Singh, Ramesh Allanki,Dr. Charu Mathur, Ms. Tanvi, Sanjay Kumar Dubey, Rahul Unnikrishnan, H

AMalak Bhatt, Gurmeet Singh Makker, Gaurav Sharma, Kirtman Singh,Waize Ali Noor, Dhawal Mohan, Prateek Bhatia, Ms. Srirupa Nag, TahaYasin, Amrish Kumar, R. Nedumaran, Dr. Joseph Aristotle S., V. K.Biju, Ms. Ria Sachthey, Chetanya Singh, Amlendu Kumar AkhileshKumar Jha, Shaji George, Ms. Vijay Laxmi, Ms. Archana Pathak Dave,Kumar Prashant, Ms. Vanya Gupta, Avnish Dave, Parmod KumarBVishnoi, Ms. Himanshi Shakya, Devashish Bharuka, Mithu Jain, ShashankRatnoo, Vikram Hegde, Shantanu Lakhotia, Advs. for the appearingparties.

The following Judgment and Order of the Court were passed :

CJUDGMENT

The following Judgment and Order of the Court were passed :

CJUDGMENT

DR. DHANANJAYA Y CHANDRACHUD, J.

This judgment has been divided into the following sections tofacilitate analysis:

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

D

B.Pendency of the Writ Petition Instituted bySaloni Kumari............................................................10

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

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

E

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

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

D.3The Executive’s power to introduce reservationin AIQ seats...................................................59F

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

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

GA. Factual Background

1. These writ petitions challenge the reservation for OtherBackward Classes[1] and the Economically Weaker Section[2] in the All- 1 “OBC”H2 “EWS”

India Quota[3] seats in the National Eligibility cum Entrance Testexamination[4] for undergraduate[5] and postgraduate[6] medical courses. TheDirectorate General of Health Services in the Union Ministry of Healthand Family Welfare[7] issued a notice on 29 July 2021 providing 27 percentreservation for OBC (non-creamy layer) and 10 percent reservation forEWS in the 15 percent UG and 50 percent PG seats in AIQ from theacademic year 2021-2022. By an order dated 7 January 2022, a two-judge Bench of this Court upheld the constitutional validity of the OBCreservation in AIQ seats and posted the challenge to the validity of theEWS criteria for final hearing in the third week of March 2022. Thisjudgement provides reasons for upholding the permissibility of reservationsin the AIQ seats and constitutionality of OBC reservation in AIQ seats.

2. Some of the salient facts that have led to the implementation ofOBC reservation in AIQ seats are being adverted for setting out thebroad contours of the controversy. While we have discussed in detailthe history of the AIQ and the evolution of an All-India common entranceexamination in Section D.2, it is sufficient to highlight that the scheme ofAIQ seats was devised by this Court in Dr Pradeep Jain v. Union ofIndia[8 ]to provide domicile free seats in State run medical and dentalinstitutions. The AIQ scheme was further developed by this Court inDinesh Kumar (I) v. Motilal Nehru Medical College[9] and DineshKumar (II) v. Motilal Nehru Medical College[10]. Presently, underthe AIQ scheme, 15 percent UG seats and 50 percent PG seats in State–run institutions are surrendered by the states to the AIQ. The remainingseats in the State institutions are reserved for candidates domiciled inthe respective States.

3. The Constitution (Ninety-Third Amendment) Act 2005 amendedArticle 15 of the Constitution by inserting clause (5) to Article 15 toempower the State to make special provisions (including reservation)for the advancement of socially and educationally backward classes (or 3 “AIQ”

4 “NEET-PG”

5 “UG”

6 “PG”

7 “MH&FW”

8 (1984) 3 SCC 654

9 (1985) 3 SCC 22

10 (1986) 3 SCC 727

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Athe OBCs) relating to their admission in educational institutions. Article15 (5) reads thus:

“(5) Nothing in this article or in sub-clause (g) of clause (1) ofarticle 19 shall prevent the State from making any special provision,by law, for the advancement of any socially and educationallyBbackward classes of citizens or for the Scheduled Castes or theScheduled Tribes in so far as such special provisions relate totheir admission to educational institutions including privateeducational institutions, whether aided or unaided by the State,other than the minority educational institutions referred to in clause(1) of article 30.”C

4. In Abhay Nath v. University of Delhi[11], this Court held thatreservations for Scheduled Caste[12] and Scheduled Tribe[13] candidatesare permissible in the AIQ seats. The Central Educational Institutions(Reservation in Admissions) Act 2006[14], which came into effect on 3January 2007, was enacted to provide for reservation for studentsDbelonging to the SCs, STs and OBCs in Central educational institutions.The Act of 2006 provided that 15 percent seats shall be reserved forSCs, 7.5 percent seats for STs, and 27 percent seats for OBCs in Centraleducational institutions. However, reservation for OBCs was not extendedto State contributed seats for AIQ in State-run institutions.

E

5. The State of Tamil Nadu granted 50 percent reservation toOBCs in State-run medical institutions under the Tamil Nadu BackwardClasses, Scheduled Castes and Scheduled Tribes (Reservation of Seatsin Educational Institutions and of Appointments or Posts in the Servicesunder the State) Act, 1993[15]. Thus, the State quota seats were beingFfilled 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 byits order dated 11 June 2020 directed that the issue be agitated beforethe Madras High Court. This Court observed thus:

G11 (2009) 17 SCC 70512 “SC”13 “ST”14 “Act of 2006”15 “Act of 1993”16 WP No 507 of 2020H17 “DMK”

“The learned senior counsel for the petitioners seek permission towithdraw these Writ Petitions with liberty to approach the HighCourt by filing Writ Petitions under Article 226 of the Constitution.

Permission granted.

The Writ Petitions are, accordingly, dismissed as withdrawn withthe 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 inState-run medical and dental institutions in the State of Tamil Nadu mustfollow the reservation policy as applicable under the Act of 1993.However, the Madras High Court after issuing notice in the petitionaccepted the argument of the Union Government that the hearing in thematter be deferred in view of the pendency of a writ petition[19] beforethis Court on a similar issue. Aggrieved by the deferral of the hearing,special leave petitions were instituted before this Court. By its orderdated 13 July 2020, this Court disposed of the petitions holding that theissue raised in the writ petition pending before it is different from the oneraised by the DMK before the Madras High Court and directed theHigh Court to proceed with the hearing of the case. This Court madethe following observations:

“Permission to file Special Leave Petition without certified/plaincopy of impugned order in Diary No. 13644/2020 is granted.

These special leave petitions are directed against the order dated22.6.2020 by which the High Court adjourned the matters in viewof the pendency of Writ Petition No.596 of 2015 in this Court.This order was passed on the basis of the stand taken by theUnion of India that the points arising in the writ petitions filed inthe High Court are similar to those that arose in Saloni Kumariand Anr. Versus DGHS & Ors. (Writ Petition No.596 of 2015).

We have perused the writ petition filed by Saloni Kumari which ispending consideration in this Court. The issue that arises in thewrit petition pertains to the implementation of 27% seats foradmission to Post Graduate courses in the All India Quota. Thecomplaint of the petitioner is that the seats in the 27% quota ofOBCs should not be restricted to Central Government institutions.

18 WP No 8326 of 2020

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

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Whereas, the writ petitions pending in the High Court involve adispute pertaining to the percentage of reservation to be followedin State of Tamil Nadu in respect of the surrendered seats in theAll India Quota for PG medical admissions.

A

As the point raised in the writ petitions pending in the High CourtBis not similar to that in Saloni Kumari’s case, the High Court canproceed to adjudicate the writ petitions on merits. We are informedthat the writ petitions are listed before the High Court for finalhearing on 17.7.2020. The High Court is requested to decide thewrit petitions expeditiously.

Special Leave Petitions are disposed of accordingly.”C

7. The Madras High Court by its judgement dated 27 July 2020disposed of the writ petition holding that there are no legal or constitutionalimpediments in extending reservation to OBCs in the AIQ seats in themedical colleges in the State of Tamil Nadu. The High Court directedthe Union Government to constitute an Expert Committee forDimplementing reservation for OBCs in the seats surrendered by the Stateof Tamil Nadu in AIQ. However, the High Court observed that thereservation should be implemented only from the academic year 2021-2022 since it would disturb the selection process that had been set intomotion for the academic year of 2020-2021. The State of Tamil Naduchallenged the order of the Madras High Court dated 27 July 2020 beforeEthis Court in a special leave petition[20] on the limited ground that the HighCourt erred in denying implementation of the OBC reservation for theacademic year 2020-2021. In its order dated 26 October 2020, this Courtupheld the order of the High Court regarding the implementation of theOBC reservation from the subsequent academic year 2021-2022.

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8. The MH&FW set up an Expert Committee to determine themodalities of granting reservation to OBC candidates in AIQ seats inUG and PG courses in state-run medical colleges within the State ofTamil Nadu from the academic year 2021-2022. The Committeerecommended two options in its final report, i.e., either State-specificGreservation can be implemented for OBCs in AIQ seats or OBCreservation can be granted in terms of the provisions of the Act of 2006.

9. A Contempt petition[21] was instituted by DMK before the MadrasHigh Court against the Union of India for non-implementation of OBC

20 SLP (C) No 9286 of 2020H21 Contempt Petition No 181 of 2021

21 Contempt Petition No 181 of 2021

reservation in AIQ seats. In the meanwhile, a notice dated 29 July 2021was issued by the Directorate General of Health Services, MoHFW toimplement 27 percent OBC reservation (non-creamy Layer) and 10percent EWS reservation in the 15 percent UG and 50 percent PG AIQseats in the current academic session of 2021-22. The notice statedthus:

“NOTICE

Urgent Attention Candidates of NEET-UG and NEET-PG:

It has been decided by the Government of India to implement27% OBC reservation (Non-creamy later) and 10% EWSreservation in the 15% AIQ UG seats and the 50% All India Quotaseats (MBBS/BDS and MD/MS/MDS) (contributed by the State/UTs). This reservation will take effect from the current Academicsession 2021-22.

Consequently, the overall reservation in 15% UG and 50% PG AllIndia 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”

10. By its order dated 25 August 2021, the Madras High Courtdismissed the contempt petition since the Union Government hadcomplied with the order dated 27 July 2020 of the Madras High Court byconstituting a committee. The High Court observed thus:

“Since the committee required to be constituted by the order datedJuly 27, 2020 was instituted and such committee gave its opinionand the Union, or its appropriate agencies, have acted on the basisthereof, albeit not exactly in terms of the recommendations, nocase of willfull or deliberate violation of the said order can be saidto have been made out.”

Nonetheless, the High Court proceeded to scrutinize the validityof the notification dated 29 July 2021 providing reservation for OBC andEWS candidates in AIQ seats in medical and dental institutions. With A

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Arespect to the reservation granted to EWS under the notification dated29 July 2021, the High Court observed that such reservation can bepermitted only with the approval of this Court. Special leave petitionswere instituted before this Court challenging the order of the MadrasHigh Court. This Court by its order dated 24 September 2021 disposedof the petitions observing that the Madras High Court in its contemptBjurisdiction could not have entered into a discussion on the validity of theEWS reservation provided by the notice dated 29 July 2021 and setaside the direction that the approval of this Court should be receivedbefore implementing reservation for the EWS category in AIQ seats.

11. We have traced the trajectory of the introduction of OBCCreservation in NEET AIQ seats, which is challenged before this Court inthe present batch of writ petitions. By its order dated 7 January 2022,this Court upheld the constitutional validity of the OBC reservation inAIQ medical and dental UG and PG seats. The constitutionality of thecriteria used for the identification of the EWS category is yet to beDdecided. However, in the interim, this Court directed that the counsellingin NEET-PG 2021 and NEET-UG 2021 be conducted by giving effect tothe reservation provided by the notice dated 29 July 2021, including the27 percent OBC reservation and 10 percent EWS reservation. Thechallenge to the validity of the OBC reservation in AIQ seats is dealtwith in this judgement.E

B. Pendency of the Writ Petition instituted by Saloni Kumari

12. We are aware that a writ petition was filed by Saloni Kumariseeking 27 percent OBC reservation in AIQ seats in State-run medicalinstitutions on the ground that such reservation should not be restrictedto Central education institutions in terms of the Act of 2006. The claimFraised in that petition was of parity. The issue that has been raised beforeus is of the validity of the notification dated 29 July 2021 that providesfor 27 percent OBC reservation in the AIQ seats in UG and PG seatsfrom the academic year 2021-2022. On account of the difference in thenature of the issues raised before this Court, we will proceed to rule onGthe validity of the notification dated 29 July 2021.

C. Submissions of Counsel

13. Mr Shyam Divan, learned Senior Counsel appearing for thepetitioners argued that there must be no reservation for the OBCcommunity in the AIQ quota. In pursuance of this argument, he madeHthe following submissions:

(i) In Pradeep Jain v. Union of India[22], this Court raisedserious concerns about the reservation in PG seats. Oncea person is qualified as a doctor, he cannot be treated asbelonging to a backward class anymore. Therefore,admission in PG seats must be purely based on merit,without any reservation; A

B

(ii) At the level of PG and super-speciality[23], doctors arerequired to possess high degree of skill and expert knowledgein specialised areas. This skill cannot be acquired byeveryone. It would be detrimental to national interest tohave reservations at this stage. Opportunities that areCavailable for such training are minimal and therefore, it shouldonly be available to the most meritorious;

(iii) This Court in Pradeep Jain (supra) created a right againstreservation in the AIQ seats. The judgment of this Court inAbhay Nath v. University of Delhi[24 ]allowing reservationsfor SC and ST categories in the AIQ is per incuriam inlight of the judgments in Pradeep Jain (supra), Union ofIndia v. R. Rajeshwaran[25]and Union of India v.Jayakumar[26]; D

(iv) The AIQ scheme was conceived by this Court in PradeepEJain (supra) and developed in Dinesh Kumar (I) (supra)and Dinesh Kumar (II) (supra). Therefore, only this Courtcan alter the reservation scheme in the AIQ seats. TheUnion Government ought to have made an application tothis Court apprising it of its intention to provide reservationfor OBC and EWS categories in AIQ, and this Court couldFdecide 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 thatreservation in PG courses must be minimum; G

22 (1984) 3 SCC 654

23 “SS”

24 (2009) 17 SCC 705

25 (2003) 9 SCC 294

26 (2008) 17 SCC 478

27 (1999) 7 SCC 120

A(vi)Even if reservation for the OBC category in the AIQ seatsis constitutionally valid, it ought not to have been introducedfor the academic year of 2021-22 since the notice onreservation for the OBC category was introduced after theregistration window was closed. It is a settled principle thatthe rules of the game cannot be changed after the gameBhas begun;

(vii) The candidates had registered for the exam against a certainseat matrix, having knowledge of the total number of seatsfor which they could compete. The impugned notificationalters the seat matrix, changing the rules of the game afterCthe game had begun;

(viii) The phrase ‘as may be applicable’ in clause 11.1 of theinformation bulletin must be read to mean the reservationapplicable as on the date of registration. The rules of thegame were set when the registration closed; andD

(ix) In specific branches of specialisation such as MD Radiology,MD Dermatology, MD Gynaecology, MS Psychiatry, MD(Chest), MD Preventive and Social Medicine, MD ForensicMedicine, MS Microbiology, MS Pathology, MDBiochemistry, MS Anatomy, MS Orthopedics, and MS ENT,Eno SS course is offered in India. Therefore, such coursesare the end of the branch and there must be no reservationin such courses since they are equivalent to SS courses(Dr. Preeti Srivastava (supra)).

14. The Union of India addressed the following argumentsFcontending that the 27 percent reservation for the OBC category in AIQseats is constitutionally valid. Mr Tushar Mehta, Solicitor General andMr KM Nataraj, Additional Solicitor General made the followingsubmissions:

(i) The rules of the game were not changed after the processGhad begun since the reservation through the impugned noticeissued on 29 July 2021 was introduced much prior to thedate on which the exams were conducted and before thecommencement of the counselling process. The NEET PGexamination schedule is as follows:

H

(a) Release of Information Brochure: 23 February 2021A

(b) Commencement of Registration Process: 23February 2021

(c) Last date of Registration: 15 March 2021

(d) Scheduled examination date: 18 April 2021B

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

(f) New date of examinations announced on: 13 July2021

(g) New date for examination: 11 September 2021

C

Clause 11.1 of the information bulletin issued on 23 February2021 states that reservation of PG seats shall be as per thenorms of the Central Government and the respective StateGovernments. Clause 11.2 states that a separate handbookproviding information on the counselling process andapplicable reservation shall be released by the designatedcounselling authority for NEET-PG 2021. Therefore, theprocess begins only with the commencement of thecounselling process and not when the registration closes; D

(ii) Reservation in AIQ seats according to the impugned noticeEhas been implemented for MDS admissions in the currentacademic year of 2021-22;

(iii) The AIQ scheme was introduced in 1986 to provide domicilefree admission to students from across the country. Till 2007,there was no reservation in the AIQ. In 2007, this Court inFthe case of Abhay Nath (supra) permitted 15 percentreservation for the SCs and 7.5 percent reservation for theSTs in the AIQ seats. The Act of 2006 providing 27 percentreservation to OBCs which came into force in 2007 wasimplemented in all Central educational institutions, includingmedical colleges run by the Central Government;G

G

(iv) The AIQ scheme is a Central scheme. Therefore, theCentral List of OBCs shall be used for implementing thereservation. Around 1500 OBC students in UG and 2500 inPG will be benefitted through reservation for OBC categoryin AIQ seats; H

A(v)In the last six years, MBBS seats in the country have beenincreased by 56 percent from 54,348 in 2014 to 84,649 seatsin 2020. The number of PG medical seats has been increasedby 80 percent from 30,191 seats in 2014 to 54,275 seats in2020; B(vi)Providing reservation for the AIQ seats in medical/dentalcourses is a matter of policy;

(vii) Though observations have been made by this Court on thedesirability or otherwise of reservation in PG courses, ithas never been held to be unconstitutional; and C(viii) This Court in Pradeep Jain (supra) only held that therewould be no domicile-based reservation in the AIQ seats.It was not held that no reservation otherwise would beimpermissible in the AIQ seats. Subsequent decisions ofthis Court (Saurabh Chaudri v. Union of India[28];Gulshan Prakash v. State of Haryana[29]) have clarifiedDthat this Court in Pradeep Jain (supra) had only observedthat 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 AIQis constitutionally valid. The Senior Counsel made the followingEsubmissions:

(i) Parliament by the Constitution (Ninety-Third Amendment)Act 2005 introduced Clause (5) in Article 15 providingreservation for the SCs, STs and socially and educationallybackward classes (or the OBCs) in admission to educationalinstitutions, including private educational institutions, aidedFor unaided by the State and other minority educationalinstitutions. Pursuant to the amendment, the UnionGovernment enacted the Act of 2006 providing 27 percentreservation for the OBC category in Central educationalinstitutions. The Supreme Court upheld the constitutionalGvalidity of the Ninety-Third Constitutional Amendment andthe Act of 2006 in Ashoka Kumar Thakur v. Union ofIndia[30]. The Tamil Nadu State legislature enacted the Tamil 28 (2003) 11 SCC 14629 (2010) 1 SCC 477H30 (2007) 4 SCC 361

28 (2003) 11 SCC 14629 (2010) 1 SCC 477H30 (2007) 4 SCC 361

Nadu Backward Classes, Scheduled Castes and ScheduledATribes (Reservation of Seats in Educational Institutions andof Appointments or Posts in the Services under the State)Act 1993 providing 69 percent reservation. The enactmentpermits 50 percent reservation for backward classes andthe most backward classes. Therefore, both the StateBlegislature and the Parliament allow reservation for the OBCcategory; A

(ii) Regulation 9(IV) of the PG Medical Education Regulations2000 and Regulation 5(5) of the UG Medical EducationRegulations stipulate reservation for the categories basedon the applicable laws prevailing in the States/UnionTerritories. Therefore, reservation must be applicable to allseats including the State contributed seats of AIQ; C

(iii) Merit cannot be measured solely in terms of marks. Meritmust be construed in terms of the social value of a memberDin the medical profession (Pradeep Jain (supra);

(iv) In UG courses, the States contribute 15 percent seats tothe AIQ. Of the 6060 seats in the AIQ contributed by theStates, 1636 seats (that is 27 percent) seats ought to havebeen reserved for the OBC category on the enactment ofthe Act of 2006. Similarly, 2569 of the 9515 seats contributedEby the States to the AIQ in PG courses ought to have beenreserved 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 noF

(v) The Madras High Court in a judgment dated 27 July 2020(in WP No. 8626 of 2020) had observed that there was nolegal or constitutional impediment in extending the benefitof reservation to the OBC category in the AIQ in PGcourses. The petitioners have not challenged the judgmentof the Madras High Court;

(vi) Clause 11 of the information bulletin for the NEET-PGexamination states that reservation would be ‘as per theGnorms of GOI and State prevailing at the time ofcounselling’. Therefore, the argument of the petitionersthat the rules of the game should not be changed in themiddle of the game would be applicable only if the reservationwas introduced after the counselling had begun; H

A(vii)The submission of the petitioners that no reservation wasprovided at the level of SS in view of the judgment of thisCourt in Dr.Preeti Srivastava (supra) is erroneous sincethe Act of 2006 only exempts reservations in institutions ofexcellence, research institutions, and institutions of nationaland strategic importance specified in the schedule of theBAct, and Minority Educational Institutions as referred tounder section 4 of the Act of 2006. Reservation is providedin SS courses in Central educational institutions such asAIIMS and JIPMER;

(viii) Central medical institutions such as AIIMS and PGI holdCtheir own examination twice a year for PG courses. Thereis no demarcation of State Quota and AIQ in these Centralinstitutions. Therefore, the AIQ PG seats are different fromPG seats of Central institutions; and

(ix) Reservation can be provided either through a legislation orDby an executive order such as a notification, order, andmemorandum.

16. The arguments of the petitioners are three-fold: (i) Admissionsto PG courses must solely be based on open competition; (ii) this Courtin Pradeep Jain (supra) and subsequent cases has held that there shallEbe no reservation in the AIQ seats and that admission to the AIQ seatsshall be strictly by open competition; and (iii) as this Court evolved theconcept of AIQ seats, any reservation to be introduced in the AIQ seatsmust only be pursuant to the direction of this Court.

D. AnalysisF

D. 1 The Merit of Reservation

D. AnalysisF

D. 1 The Merit of Reservation

17. On behalf of the petitioners, it was urged that at the level ofPG courses, a high degree of skill and expertise is required. Thus, suchopportunities must be available to the most meritorious and providingany reservation for PG seats would be detrimental to national interest.GIn effect, a binary was sought to be created between merit andreservation, where reservation becomes antithetical to establishingmeritocracy. This is not a novel argument. There has been a longstandingdebate over whether reservation for any class impinges on the idea ofmerit. In the Constituent Assembly Debates on draft Article 10, which H

has been incorporated as Article 16 of the Constitution, some membersraised concerns on the inclusion of clause (3) to draft Article 10 (nowArticle 16 (4) of the Constitution) which provided that the State isempowered to make reservation in appointments or posts in favour ofany backward class of citizens who, in the opinion of the State, is notadequately represented in the services under the State. Certain membersof the Constituent Assembly argued for the deletion of clause (3). Forinstance, Shri Loknath Misra stated that such a provision puts, “a premiumon backwardness and inefficiency” and no citizen had a fundamentalright “to claim a portion of State employment, which ought to go by meritalone.” Shri Damodar Swarup Seth argued that reservation results inthe “very negation of efficiency and good Government” and appointmentsshould be “made on merit and qualification”. However, the ConstituentAssembly rejected these claims and adopted clause (3) of draft Article10. Although there was debate on the meaning of “backward classes”, itwas felt that there must be a provision that enables entry of thosecommunities into administration since they were deprived of such accessin the past and formal equality of opportunity would not suffice.[31]However, the view that merit or efficiency in service is distinct fromconcerns of advancement of backward classes persisted for somemembers. Shri KM Munshi (a member of the Drafting Committee)observed that:

“What we want to secure by this clause [Article 10] are twothings. In the fundamental right in the first clause we want toachieve the highest efficiency in the services of the State—highestefficiency which would enable the services to function effectivelyand promptly. At the same time, in view of the conditions in ourcountry prevailing in several provinces, we want to see thatbackward classes, classes who are really backward, should begiven scope in the State services; for it is realised that State servicesgive a status and an opportunity to serve the country, and thisopportunity should be extended to every community, even amongthe backward people.”

However, many members also recognized that merit cannot beseparated from the function of the existing inequalities in society. They 31 Volume 7, Constituent Assembly of India Debates, 30 November 1948, available athttps://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-11-30

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Aenvisaged that social justice must be read into the promise of equality ofopportunity; otherwise the latter merely advances the interests of theprivileged. During the debates on draft Article 286, which pertained tothe functions of Public Service Commission with regard to appointmentsto public posts, Dr PS Deshmukh argued that:

B“…people’s capacities cannot be measured by mere passing ofexaminations or obtaining the highest possible marks. But thosecommunities 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 andspeaks on behalf of the millions who have had no chances ofCeducation, they consider it as a threat to their monopoly on thepart of the rest of the communities and accuse the advocates ascommunal and communally minded. There is no communalism inthis. Neither I nor anybody who speaks on their behalf want anyparticular community to dominate, where as those who opposeDthis move are interested only in particular communities. They wantto preserve communalism while accusing us of communalismbecause they have had the advantage of education which theyfear will be taken away. They think and urge that merit is or canbe tested only by examinations. But so far as the masses of thecountry are concerned, the millions of our populations who haveEnot had even the chance to get primary school education, theyhave no place so far as the public services are concerned, so longas the present system lasts.”[32]

Shri Phool Singh emphatically provided a conception of substantiveequality when he stated that merit of candidates cannot be evaluatedFthrough an open competition without regard to their social positions. Hefurther highlighted that the meaning of merit should also take intoreference the task that is to be carried out. He stated thus:

“…Much has been made of merit in this case; but equal meritpre-supposes equal opportunity, and I think it goes without sayingGthat the toiling masses are denied all those opportunities which afew literate people living in big cities enjoy. To ask the people 32 Volume 9, Constituent Assembly of India Debates, 23 August 1949, available athttps://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-H08-23

from the villages to compete with those city people is asking aman on bicycle to compete with another on a motorcycle, whichin itself is absurd. Then again, merit should also have somereference 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 thepeople are illiterate, a few leaders have no right to usurp all thepower to themselves. This cry, this bogey of merit and fair-play isbeing raised by those who are in a[n] advantageous position andwho stand to suffer if others also come into the picture.”[33]

While these observations were made in the context of employmentto public posts, the debate on conceptualisation of reservation as anexception to the principle of merit has relevance in regard to admissionto educational institutions as well. The debates in Constituent Assemblywere limited to reservation in public posts because reservation ineducational institutions was introduced through a subsequent constitutionalamendment.

18. On its part, this Court initially subscribed to the binary of meritand reservation. Articles 14, 15(1) and 16(1) were thought to embody thegeneral principle of formal equality. Articles 15 (4) and 16 (4) wereunderstood to be exceptions to this general principle, advancing the causeof social justice. This Court sought to balance these competing imperatives.In such an understanding, merit is equated to formal equality of opportunitywhich has to be balanced against the concerns of social justice throughreservation. In MR Balaji v. State of Mysore[34], a Constitution Bench ofthis Court observed that Article 15 (4) is an exception to Article 15 (1),which was introduced “because the interests of the society at large wouldbe served by promoting advancements of the weaker elements in thesociety”.[35] However, since Article 15 (4) (or reservation) was consideredat odds with the notion of formal equality under Article 15 (1), which isbroadly understood as complying with the principle of merit, this Courtobserved that there should be a cap on reservations, which it specifiedgenerally should be 50 percent.[36] This Court stated:

33 Ibid

34 1963 Supp (1) SCR 439

35 Ibid, paragraph 31.

36 Ibid, paragraph 34.

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A“32. …Therefore, in considering the question about the proprietyof the reservation made by the impugned order, we cannot losesight of the fact that the reservation is made in respect of higheruniversity education. The demand for technicians, scientists,doctors, economists, engineers and experts for the furthereconomic advancement of the country is so great that it wouldBcause grave prejudice to national interests if considerations ofmerit are completely excluded by whole-sale reservation of seatin all technical, Medical or Engineering colleges or institutions ofthat kind. Therefore, considerations of national interest and theinterests of the community or society as a whole cannot be ignoredCin determining the question as to whether the special provisioncontemplated by Article 15(4) can be special provision whichexclude the rest of the society altogether. In this connection, itwould be relevant to mention that the University EducationCommission which considered the problem of the assistance tobackward communities, has observed that the percentage ofDreservation shall not exceed a third of the total number of seats,and it has added that the principle of reservation may be adoptedfor a period of ten years (p. 53).”

19. This view was followed by this Court in subsequent judgementswhere a special provision made for the benefit of a class was seen as aEdeviation from the principle of formal equality.[37] However, the dominantview of this Court was challenged by the Justice R Subba Rao in hisdissent in T. Devadasan v. Union of India, where the learned judgestated that Article 16 (4) is not an exception but rather a facet of Article16 (1), which seeks to redress the historical disadvantage suffered bycertain communities. Justice Subba Rao observed thus:F

“26. Article 14 lays down the general rule of equality. Article 16 isan instance of the application of the general rule with specialreference to opportunity of appointments under the State. It saysthat there shall be equality of opportunity for all citizens in mattersrelating to employment or appointment to any office under theGState. If it stood alone, all the backward communities would go tothe wall in a society of uneven basic social structure; the said ruleof equality would remain only an utopian conception unless a 37 T. Devadasan v. Union of India (1964) 4 SCR 680; CA Rajendran v. Union of IndiaH(1968) 1 SCR 721

practical content was given to it. Its strict enforcement bringsabout the very situation it seeks to avoid. To make my point clear,take the illustration of a horse race. Two horses are set down torun a race —one is a first class race horse and the other anordinary one. Both are made to run from the same starting point.Though theoretically they are given equal opportunity to run therace, in practice the ordinary horse is not given an equal opportunityto compete with the race horse. Indeed, that is denied to it. So ahandicap may be given either in the nature of extra weight or astart from a longer distance. By doing so, what would otherwisehave been a farce of a competition would be made a real one.The same difficulty had confronted the makers of the Constitutionat the time it was made. Centuries of calculated oppression andhabitual submission reduced a considerable section of ourcommunity to a life of serfdom. It would be well nigh impossibleto raise their standards if the doctrine of equal opportunity wasstrictly enforced in their case. They would not have any chance ifthey were made to enter the open field of competition withoutadventitious aids till such time when they could stand on their ownlegs. That is why the makers of the Constitution introduced clause(4) in Article 16. The expression “nothing in this article” is alegislative device to express its intention in a most emphatic waythat the power conferred thereunder is not limited in any way bythe main provision but falls outside it. It has not really carved outan exception, but has preserved a power untrammelled by theother provisions of the article.”

20. The view expressed by Justice Subba Rao was adopted bythis Court in State of Kerala v. NM Thomas[38], which transformed theequality jurisprudence in India from that of formal equality to substantiveequality; thus, also changing our understanding of reservations. ChiefJustice AN Ray writing the judgement of this Court held:

“44. Our Constitution aims at equality of status and opportunityfor all citizens including those who are socially, economically andeducationally backward. The claims of members of BackwardClasses require adequate representation in legislative and executivebodies. If members of Scheduled Castes and tribes, who are saidby this Court to be Backward Classes, can maintain minimum AB

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Anecessary requirement of administrative efficiency, not onlyrepresentation but also preference may be given to them to enforceequality and to eliminate inequality. Article 15(4) and 16(4) bringout the position of Backward Classes to merit equality. Specialprovisions are made for the advancement of Backward Classesand reservations of appointments and posts for them to secureBadequate representation. These provisions will bring out the contentof equality guaranteed by Articles 14, 15(1) and 16(1). The basicconcept equality is equality of opportunity for appointment.Preferential treatment for members of Backward Classes withdue regard to administrative efficiency alone can mean equalityCof opportunity for all citizens. Equality under Article 16 could nothave a different content from equality under Article 14. Equalityof opportunity for unequals can only mean aggravation of inequality.Equality of opportunity admits discrimination with reason andprohibits discrimination without reason. Discrimination with reasonsmeans rational classification for differential treatment having nexusDto the constitutionally permissible object. Preferential representationfor the Backward Classes in services with due regard toadministrative efficiency is permissible object and BackwardClasses are a rational classification recognised by our Constitution.Therefore, differential treatment in standards of selection are withinEthe concept of equality.”

The majority of the judges accepted that special provisions(including reservation) made for the benefit of any class are not anexception to the general principle of equality. Special provisions are amethod to ameliorate the structural inequalities that exist in the society,Fwithout which, true or factual equality will remain illusory. Justice KKMathew in his concurring opinion observed that while equality underArticle 16 (1) is individual-centric[39 ](which was the view of the majority– Justice Mathew and Justice Beg’s majority opinions, and Justice Khannaand Justice Gupta’s dissents), the manner in which it is to be achieved isthrough the identification of groups that do not enjoy equal access toGcertain rights and entitlements. The learned judge made the followingobservations:

“73. There is no reason why this Court should not also require theState to adopt a standard of proportional equality which takes H39 Ibid, paragraph 52.

account of the differing conditions and circumstances of a classof citizens whenever those conditions and circumstances stand inthe way of their equal access to the enjoyment of basic rights orclaims.

74. The concept of equality of opportunity in matters ofemployment is wide enough to include within it compensatorymeasures to put the members of the Scheduled Castes andscheduled tribes on par with the members of other communitieswhich would enable them to get their share of representation inpublic service. How can any member of the so-called forwardcommunities complain of a compensatory measure made by theGovernment to ensure the members of Scheduled Castes andscheduled tribes their due share of representation in publicservices?

75. It is said that Article 16(4) specifically provides for reservationof posts in favour of Backward Classes which according to thedecision of this Court would include the power of the State tomake reservation at the stage of promotion also and thereforeArticle 16(1) cannot include within its compass the power to giveany adventitious aids by legislation or otherwise to the BackwardClasses which would derogate from strict numerical equality. Ifreservation is necessary either at the initial stage or at the stageof promotion or at both to ensure for the members of the ScheduledCastes and scheduled tribes equality of opportunity in the matterof employment, I see no reason why that is not permissible underArticle 16(1) as that alone might put them on a parity with theforward communities in the matter of achieving the result whichequality of opportunity would produce. Whether there is equalityof opportunity can be gauged only by the equality attained in theresult. Formal equality of opportunity simply enables people withmore education and intelligence to capture all the posts and to winover the less fortunate in education and talent even when thecompetition is fair. Equality of result is the test of equality ofopportunity.”

Thus, the learned judge envisaged that equality of individuals is tobe achieved by addressing the structural barriers faced by certain classesof citizens, which he called the “conditions and circumstances [that]stand in the way of their equal access to the enjoyment of basic rights or A

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Aclaims”. Justice Krishna Iyer and Justice Fazal Ali in their concurringopinions went a step further to argue that the content of Article 16 (1) isnot individual-centric rather it aims to provide equality of opportunity tosections that face structural barriers to their advancement. Justice KrishnaIyer invoked Article 46 of the Constitution, which although unenforceable,was employed for giving effect to Article 16 (1). In his opinion bothBArticles 16 (1) and 16 (4) function to equalise group inequalities albeit indifferent contexts. The learned judge observed thus:

“137. “reservation” based on classification of backward andforward classes, without detriment to administrative standards (asthis Court has underscored) is but an application of the principleCof equality within a class and grouping based on a rationaldifferentia, the object being advancement of backward classesconsistently with efficiency. Article 16(1) and (4) are concordant.This Court has viewed Article 16(4) as an exception to Article16(1). Does classification based on desperate backwardnessDrender Article 16(4) redundant? No. Reservation confers pro tantomonopoly, but classification grants under Article 16(1) ordinarilya lesser order of advantage. The former is more rigid, the lattermore flexible, although they may overlap sometimes. Article 16(4)covers all backward classes; but to earn the benefit of groupingunder Article 16(1) based on Articles 46 and 335 as I have explained,Ethe twin considerations of terrible backwardness of the type harijansendure and maintenance of administrative efficiency must besatisfied.”

21. Justice Fazal Ali in his concurring opinion noted that equalityof opportunity under Article 16 (1) entails the removal of barriers facedFby certain classes of society. They cannot be denied the right to equalityand relegated to suffer backwardness only because they do not meetcertain artificial standards set up by institutions. Justice Fazal Ali madethe following observations:

“158. It is no doubt true that Article 16(1) provides for equality ofGopportunity for all citizens in the services under the State. It is,however, well-settled that the doctrine contained in Article 16 is ahard and reeling reality, a concrete and constructive concept andnot a rigid rule or an empty formula. It is also equally well-settledby several authorities of this Court that Article 16 is merely anHincident of Article 14, Article 14 being the genus is of universal

application whereas Article 16 is the species and seeks to obtainequality of opportunity in the services under the State. The theoryof reasonable classification is implicit and inherent in the conceptof equality for there can hardly be any country where all thecitizens would be equal in all respects. Equality of opportunitywould naturally mean a fair opportunity not only to one section orthe other but to all sections by removing the handicaps if a particularsection of the society suffers from the same. It has never beendisputed in judicial pronouncements by this Court as also of thevarious High Courts that Article 14 permits reasonable classification.But what Article 14 or Article 16 forbid is hostile discrimination andnot reasonable classification. In other words, the idea of classificationis implicit in the concept of equality because equality means equalityto all and not merely to the advanced and educated sections ofthe society. It follows, therefore, that in order to provide equalityof opportunity to all citizens of our country, every class of citizensmust have a sense of equal participation in building up an egalitariansociety, where there is peace and plenty, where there is completeeconomic freedom and there is no pestilence or poverty, nodiscrimination and oppression, where there is equal opportunity toeducation, to work, to earn their livelihood so that the goal ofsocial justice is achieved. Could we, while conferring benefits onthe stronger and the more/advanced sections of the society, ignorethe more backward classes merely because they cannot come upto the fixed standards? Such a course, in my opinion, would leadto denial of opportunity to the backward classes resulting incomplete annihilation of the concept of equality contained in Articles14 and 16. The only manner in which the objective of equality ascontemplated by the founding fathers of our Constitution and asenshrined in Articles 14 and 16 can be achieved is to boost up thebackward classes by giving them concessions, relaxations, facilities,removing handicaps, and making suitable reservations so that theweaker sections of the people may compete with the moreadvanced and in due course of time all may become equals andbackwardness is banished for ever. This can happen only whenwe achieve complete economic and social freedom. In our vastcountry where we have diverse races and classes of people, someof whom are drowned in the sea of ignorance and illiteracy, theconcept of equality assumes very important proportions. There ABC

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Aare a number of areas in some States like Kashmir, Sikkim, hillyareas of U.P., Bihar and the South, where due to lack ofcommunications or transport, absence of proper educationalfacilities or because of old customs and conventions and otherenvironmental reasons, the people are both socially andeducationally backward. Could we say that the citizens hailingBfrom these areas should continue to remain backward merelybecause they fall short of certain artificial standards fixed byvarious institutions? The answer must be in the negative. Thedirective principles enshrined in our Constitution contain a clearmandate to achieve equality and social justice. Without going intoCthe vexed question as to whether or not the directive principlescontained in Part IV override the fundamental rights in Part IIIthere appears to be a complete unanimity of judicial opinion ofthis Court that the directive principles and the fundamental rightsshould be construed in harmony with each other and every attemptshould be made by the Court, to resolve any apparent inconsistency.DThe directive principles contained in Part IV constitute the stairsto climb the high edifice of a socialistic State and the fundamentalrights are the means through which one can reach the top of theedifice. I am fortified in my view by several decisions of thisCourt to which I will refer briefly.”E22. Even if the judges differed on whether Article 16 (1) isindividual-centric or group-centric, they nonetheless accepted that Article16 (4) is crucial to achieve substantive equality that is envisaged underArticle 16 (1). Articles 16 (4), 15 (4), and 15 (5) employ groupidentification as a method through which substantive equality can beFachieved. This may lead to an incongruity where individual members ofan identified group may not be backward or individuals belonging to thenon-identified group may share certain characteristics of backwardnesswith members of an identified group. However, this does not change theunderlying rationale of the reservation policy that seeks to remedy thestructural barriers that disadvantaged groups face in advancing in society.GReservation is one of the measures that is employed to overcome thesebarriers. The individual difference may be a result of privilege, fortune,or circumstances but it cannot be used to negate the role of reservationin remedying the structural disadvantage that certain groups suffer.

23. The view that special provisions made for a backward classHare not an exception to the principle of equality was re-affirmed by a nine-Judge Bench in Indira Sawhney v. Union of India[40]. Theseobservations were made in the context of Articles 16 (1) and 16(4). InDr Jaishri Laxmanrao Patil v. Chief Minister[41], this Court hasobserved that the principles applied for interpreting Article 16 are also tobe used for the interpretation of Article 15. Thus, Articles 15 (4) andArticle 15 (5) are nothing but a restatement of the guarantee of the rightto equality stipulated in Article 15 (1).

24. The crux of the above discussion is that the binary of meritand reservation has now become superfluous once this Court hasrecognized the principle of substantive equality as the mandate of Article14 and as a facet of Articles 15 (1) and 16(1). An open competitiveexam may ensure formal equality where everyone has an equalopportunity to participate. However, widespread inequalities in theavailability of and access to educational facilities will result in thedeprivation of certain classes of people who would be unable to effectivelycompete in such a system. Special provisions (like reservation) enablesuch disadvantaged classes to overcome the barriers they face ineffectively competing with forward classes and thus ensuring substantiveequality. The privileges that accrue to forward classes are not limited tohaving access to quality schooling and access to tutorials and coachingcentres to prepare for a competitive examination but also includes theirsocial networks and cultural capital (communication skills, accent, booksor academic accomplishments) that they inherit from their family.[42] Thecultural capital ensures that a child is trained unconsciously by the familialenvironment to take up higher education or high posts commensuratewith their family’s standing. This works to the disadvantage of individualswho are first-generation learners and come from communities whosetraditional occupations do not result in the transmission of necessaryskills required to perform well in open examination. They have to put insurplus effort to compete with their peers from the forwardcommunities.[43] On the other hand, social networks (based on communitylinkages) become useful when individuals seek guidance and advise onhow to prepare for examination and advance in their career even if their 40 1992 Supp (3) SCC 217

41 (2021) 8 SCC 1

42 K.V Syamprasad, Merit and caste as cultural capital: Justifying affirmative action forthe underprivileged in Kerala, India, Journal for Critical Education Policy Studies, Vol17, p.50-81 (2019).

43 Ibid

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Aimmediate family does not have the necessary exposure. Thus, acombination of family habitus, community linkages and inherited skillswork to the advantage of individuals belonging to certain classes, whichis then classified as “merit” reproducing and reaffirming socialhierarchies. In BK Pavithra v. Union of India[44], a two-judge Benchof this Court, of which one of us was a part (Justice DY Chandrachud)Bhad observed how apparently neutral systems of examination perpetuatesocial inequalities. This Court observed:

“134. It is well settled that existing inequalities in society can leadto a seemingly “neutral” system discriminating in favour ofprivileged candidates. As Marc Galanter notes, three broad kindsCof resources are necessary to produce the results in competitiveexams 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,Dinformation, etc.); and (c) intrinsic ability and hard work…” [Galanter M., Competing Equalities : Law and the BackwardClasses in India, (Oxford University Press, New Delhi 1984), citedby Deshpande S., Inclusion versus excellence : Caste and theframing of fair access in Indian higher education, 40 : 1 SouthAfrican Review of Sociology 127-147.]E135. The first two criteria are evidently not the products of acandidate’s own efforts but rather the structural conditions intowhich they are borne. By the addition of upliftment of SCs andSTs in the moral compass of merit in government appointmentsand promotions, the Constitution mitigates the risk that the lack ofFthe first two criteria will perpetuate the structural inequalitiesexisting in society.”

25. This is not to say that performance in competitive examinationor admission in higher educational institutions does not require a greatdegree of hard work and dedication but it is necessary to understandGthat “merit” is not solely of one’s own making. The rhetoric surroundingmerit obscures the way in which family, schooling, fortune and a gift oftalents that the society currently values aids in one’s advancement.[45]

44 (2019) 16 SCC 12945 Michael Sandel, Tyranny of Merit: What’s become of the Common Good (PenguinHBoks)

Thus, the exclusionary standard of merit serves to denigrate the dignityof those who face barriers in their advancement which are not of theirown making. But the idea of merit based on “scores in an exam” requiresa deeper scrutiny. While examinations are a necessary and convenientmethod of distributing educational opportunities, marks may not alwaysbe the best gauge of individual merit. Even then marks are often used asa proxy for merit. Individual calibre transcends performance in anexamination. Standardized measures such as examination results arenot the most accurate assessment of the qualitative difference betweencandidates.[46] Ashwini Deshpande highlights that there is always a degreeof separation between what examinations claim to measure and whatthey actually measure. He states:

“…most examinations and tests have an inevitably indexicalcharacter – they claim to measure something more than (or otherthan) what is established by the actual tasks they set. Thus, forexample, a candidate aspiring to join civil service may take anentrance exam where she appears in papers in, say geology,philosophy and general knowledge. On the basis of herperformance in these papers, the entrance exam claims to predicther potential ability to be a good civil servant. There is at best arather indirect link between good at writing exam answers ingeology, philosophy and general knowledge and being a good civilservant. This is the sense in which the exam and the candidate’sperformance in it serves as an index – an indicator – of somethingelse namely her potential to be a good civil servant.

All examinations are more of less indexical, even those that havea lot of ‘practical’ components involving activities that appear to be veryclose to what successful candidates will eventually be doing professionally.All other things being equal, indexicality tends to weaken diagnostic claimsof the examination. Because of this, the higher the stakes, the greaterthe ideological energy that is spent on building up the prestige and populardeference accorded to the exam. That is why exams guarding the gatewayto a prized profession or status are steeped in hyperbole and are sociallyrequired (so to speak) to be traumatic bloodbaths. Anything less would

46 Ashwini Deshpande, Social Justice Through Affirmative Action in India: AnAssessment, in Jeannette Wicks-Lim and Robert Pollin (editors) Capitalism on Trial:Explorations in the Tradition of Thomas Weisskopf, Publisher: Edward Elgar PublishingInc. (Northampton, MA), 2013

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Anot only undermine the status of the status that they are guarding, itwould also endanger the main social function that such exams perform,which is to persuade the vast majority of aspirants to consent to theirexclusion.”[47]

At the best, an examination can only reflect the currentBcompetence of an individual but not the gamut of their potential, capabilitiesor excellence,[48] which are also shaped by lived experiences, subsequenttraining and individual character. The meaning of “merit” itself cannotbe reduced to marks even if it is a convenient way of distributingeducational resources. When examinations claim to be more thansystems of resource allocation, they produce a warped system ofCascertaining the worth of individuals as students or professionals.Additionally, since success in examinations results in the ascription ofhigh social status as a “meritorious individual”, they often perpetuateand reinforce the existing ascriptive identities of certain communities as“intellectual” and “competent” by rendering invisible the social, culturalDand economic advantages that increase the probabilities of success. Thus,we need to reconceptualize the meaning of “merit”. For instance, if ahigh-scoring candidate does not use their talents to perform good actions,it would be difficult to call them “meritorious” merely because they scoredhigh marks. The propriety of actions and dedication to public serviceshould also be seen as markers of merit, which cannot be assessed in aEcompetitive examination. Equally, fortitude and resilience required to upliftoneself from conditions of deprivation is reflective of individual calibre.

Such a formulation of merit was emphasised by this Court inPradeep Jain (supra), where it observed:F“12. But let us understand what we mean when we say thatselection for admission to medical colleges must be based on merit.What is merit which must govern the process of selection? Itundoubtedly consists of a high degree of intelligence coupled witha keen and incisive mind, sound knowledge of the basic subjectsand infinite capacity for hard work, but that is not enough; it alsoGcalls for a sense of social commitment and dedication to the cause 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, NewDelhi.H48 Ibid of the poor. We agree with Krishna Iyer, J., when he saysin 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 medicalattention 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 cateringto a deprived region is a plus point of merit. Excellence is compositeand the heart and its sensitivity are as precious in the scale ofeducational values as the head and its creativity and social medicinefor the common people is more relevant than peak performancein freak cases.”

Merit cannot be measured in terms of marks alone, but humansympathies are equally important. The heart is as much a factoras the head in assessing the social value of a member of themedical profession. This is also an aspect which may, to the limitedextent possible, be borne in mind while determining merit forselection of candidates for admission to medical colleges thoughconcededly it would not be easy to do so, since it is a factor whichis extremely difficult to judge and not easily susceptible toevaluation.”

26. However, after contextualising the meaning of merit, in thenext paragraph this Court reverted to equating the selection processadopted for admission to merit. However, irrespective of the true purportof merit, this Court notes that the selection process for admission mustsatisfy the test of equality. This Court observed thus:

“13. We may now proceed to consider what are the circumstancesin which departure may justifiably be made from the principle ofselection based on merit. Obviously, such departure can be justifiedonly on equality-oriented grounds, for whatever be the principleof selection followed for making admissions to medical colleges,it must satisfy the test of equality. Now the concept of equalityunder the Constitution is a dynamic concept. It takes within itssweep every process of equalisation and protective discrimination.Equality must not remain mere idle incantation but it must becomea living reality for the large masses of people. In a hierarchicalsociety with an indelible feudal stamp and incurable actual AB

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Ainequality, it is absurd to suggest that progressive measures toeliminate group disabilities and promote collective equality areantagonistic to equality on the ground that every individual is entitledto equality of opportunity based purely on merit judged by themarks obtained by him. We cannot countenance such a suggestion,for to do so would make the equality clause sterile and perpetuateBexisting inequalities. Equality of opportunity is not simply a matterof legal equality. Its existence depends not merely on the absenceof disabilities but on the presence of abilities. Where, therefore,there is inequality, in fact, legal equality always tends to accentuateit. What the famous poet William Blake said graphically is veryCtrue, namely, “One law for the Lion and the Ox is oppression”.Those who are unequal, in fact, cannot be treated by identicalstandards; that may be equality in law but it would certainly notbe real equality. It is, therefore, necessary to take into account defacto inequalities which exist in the society and to take affirmativeaction by way of giving preference to the socially and economicallyDdisadvantaged persons or, inflicting handicaps on those moreadvantageously placed, in order to bring about real equality. Suchaffirmative action though apparently discriminatory is calculatedto produce equality on a broader basis by eliminating de factoinequalities and placing the weaker sections of the community onEa footing of equality with the stronger and more powerful sectionsso that each member of the community, whatever is his birth,occupation or social position may enjoy equal opportunity of usingto the full his natural endowments of physique, of character andof intelligence. We may in this connection usefully quote whatMathew, J., said in Ahmedabad St. Xavier’s CollegeFSociety v. State of Gujarat [(1974) 1 SCC 717, 799 : AIR 1974SC 1389 : (1975) 1 SCR 173] : (SCC p. 799, para 132)

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“… it is obvious that ‘equality in law precludes discrimination ofany kind; whereas equality in fact may involve the necessity ofdifferential treatment in order to attain a result which establishesan equilibrium between different situations’ [ The Advisory opinionon Minority Schools in Albania, April 6, 1935 publications of theCourt, series A/B No 64, p 19] .”

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We cannot, therefore, have arid equality which does not take intoaccount the social and economic disabilities and inequalities fromwhich large masses of people suffer in the country. Equality in H

law must produce real equality; de jure equality must ultimatelyfind its raison d’etre in de facto equality. The State must, therefore,resort to compensatory State action for the purpose of makingpeople who are factually unequal in their wealth, education orsocial environment, equal in specified areas. The State must, touse again the words of Krishna Iyer, J., in Jagdish Sarancase [(1980) 2 SCC 768 : AIR 1980 SC 820 : (1980) 2 SCR 831](SCC p. 782, para 29) “weave those special facilities into the webof equality which, in an equitable setting, provide for the weakand promote their levelling up so that, in the long run, the communityat large may enjoy a general measure of real equal opportunity. .. . equality is not negated or neglected where special provisionsare geared to the larger goal of the disabled getting over theirdisablement consistently with the general good and individualmerit”. 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 aboutreal equality of opportunity between those who are unequals.”

27. It is important to clarify here that after the decision in NMThomas (supra) there is no constitutional basis to subscribe to the binaryof merit and reservation. If open examinations present equality ofopportunity to candidates to compete, reservations ensure that theopportunities are distributed in such a way that backward classes areequally able to benefit from such opportunities which typically evadethem because of structural barriers. This is the only manner in whichmerit can be a democratizing force that equalises inherited disadvantagesand privileges. Otherwise claims of individual merit are nothing but toolsof obscuring inheritances that underlie achievements.

28. If merit is a social good that must be protected, we must firstcritically examine the content of merit. As noted above, scores in anexam are not the sole determinant of excellence or capability. Even iffor 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 lookat the distributive consequences of merit. Accordingly, how we assessmerit should also encapsulate if it mitigates or entrenches inequalities.As Amartya Sen argues:

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characterization of instrumental goodness, including theassessment of what counts as merit, note would have to be takenof the propensity of putative merit to lessen—or generate—economic inequality. In this case, the rewarding of merit cannotbe done independent of its distributive consequences.

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In most versions of modern meritocracy, however, the selectedobjectives tend to be almost exclusively oriented towards aggregateachievements (without any preference against inequality), andsometimes the objectives chosen are even biased (often implicitly)Ctowards the interests of more fortunate groups (favouring theoutcomes that are more preferred by “talented” and “successful”sections of the population. This can reinforce and augment thetendency towards inequality that might be present even with anobjective function that inter alia, attaches some weight to lowerinequality levels”[49]DA similar understanding of merit was advanced by this Court inBK Pavithra (supra), where this Court held:

“131. Once we understand ¯merit as instrumental in achievinggoods that we as a society value, we see that the equation ofE¯merit with performance at a few narrowly defined criteria isincomplete. A meritocratic system is one that rewards actionsthat result in the outcomes that we as a society value.”

An oppositional paradigm of merit and reservation serves toentrench inequalities by relegating reserved candidates to the sphere ofFincompetence, and diminishing their capabilities. We have already statedthat while examinations are a necessary and convenient method to allocateeducational resources, they are not effective markers of merit. The waywe understand merit should not be limited to individual agency or ability(which in any event is not solely of our own doing) but it should beenvisioned as a social good that advances equality because that is theGvalue that our Constitution espouses. It is important to note that equalityhere does not merely have a redistributive dimension but also includesrecognizing the worth and dignity of every individual. The content of 49 Amartya Sen, ‘Merit and Justice’ in Arrow KJ, et al (eds), Meritocracy and EconomicHInequality (Princeton University Press 2000).

merit cannot be devoid of what we value in society. Based on the abovediscussion, we find it difficult to accept the narrow definition of merit(that is, decontextualised individual achievement). We believe such adefinition hinders the realisation of substantive equality.

29. Coming to the issue of whether reservation can be permittedin PG courses, it is evident Article 15 (5) does not make a distinctionbetween UG and PG courses. Article 15 (5) reads thus:

“(5) Nothing in this article or in sub-clause (g) of clause (1) ofarticle 19 shall prevent the State from making any special provision,by law, for the advancement of any socially and educationallybackward classes of citizens or for the Scheduled Castes or theScheduled Tribes in so far as such special provisions relate totheir admission to educational institutions including privateeducational 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 forthe advancement of socially and educationally backward classes foradmission to educational institutions at both the UG and PG levels. Whileon certain occasions, this Court has remarked that there cannot be anyreservation in SS courses, this Court has never held that reservations inmedical PG courses are impermissible. In Pradeep Jain (supra), thisCourt did not hold that reservation in PG courses is altogetherimpermissible. In Dr Preeti Srivastava (supra), this Court was notconcerned with the issue of reservation in PG courses; rather it wasconcerned with the question whether it is permissible to prescribe alower minimum percentage of qualifying marks for reserved categorycandidates in comparison to the general category candidates. In AIIMSStudent Union v. AIIMS[50], this Court was concerned with the questionof reservation based on institutional preference in PG courses and heldthat limited preference to students of the same institution can be given atthe PG level. In Saurabh Chaudhri v. Union of India[51], a ConstitutionBench of this Court observed that reservation in PG courses to areasonable extent did not violate the equality clause.[52] Mr Divan hadurged on behalf of the petitioners that for many individuals PG is the end 50 2002 (1) SCC 42851 2003 (11) SCC 146

52 Ibid, paragraph 67.

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Aof the road and therefore, the PG courses should be equated with SScourses and no reservation should be allowed in PG. We find it difficultto accept this argument when this Court has time and again permittedreservation in PG courses. This argument merely seeks to create anartificial distinction between the courses offered at the PG level. Further,only certain medical fields do not have SS courses and on the basis ofBthat we cannot deem that reservation is impermissible in PG as a whole.Crucially, the issue here is whether after graduation, an individual isentitled to reservation on the ground that they belong to a class thatsuffers from social and educational backwardness. In our opinion, itcannot be said that the impact of backwardness simply disappears becauseCa candidate has a graduate qualification. Indeed, a graduate qualificationmay provide certain social and economic mobility, but that by itself doesnot create parity between forward classes and backward classes. Inany event, there cannot be an assertion of over-inclusion whereundeserving candidates are said to be benefitting from reservationbecause OBC candidates who fall in the creamy layer are excludedDfrom taking the benefit of reservation. Thus, we find that there is noprohibition in introducing reservation for socially and educationallybackward classes (or the OBCs) in PG courses.

D.2 The Court and the AIQ seats

E30. In order to address the argument of the petitioners that thisCourt in Pradeep Jain (supra) and the subsequent cases has held thatthere shall be no reservation in the AIQ seats, it is necessary that wechronologically refer to the development of the concept of AIQ seats byvarious cases.F31. In Pradeep Jain (supra), a three-Judge Bench of this Court F31. In Pradeep Jain (supra), a three-Judge Bench of this Courtwas deciding on the constitutional validity of reservation based on domicileand institutional preference in medical colleges or institutions of higherlearning. Referring to State of U.P v. Pradip Tandon[53] andNookavarapu Kanakadurga Devi v. Kakatiya Medical College[54],where reservation for the people of the hills in Uttarakhand and TelanganaGwas held to be permissible since they were backward regions whichwould fall within the ambit of socially and educationally backward classesin Article 15(4), it was held that reservation or any other affirmative 53 (1975) 2 SCR 761H54 AIR 1972 AP 83

action programme based on residence or domicile is not arbitrary andviolative of Article 14. However, it was also observed that it is desirableto admit students to the MBBS course on an all-India basis, in furtheranceof ‘merit’, without any classification based on residence. It was observedthat however, in view of the inequality in the society where a few areaswithin a State, and a few 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 thebasis of all-India national entrance examination, each individualwould have equal opportunity of securing admission, but that wouldnot take into account diverse considerations, such as, differinglevel of social, economic and educational development of differentregions, disparity in the number of seats available for admission tothe MBBS course in different States, difficulties which may beexperienced by students from one region who might in thecompetition on all-India basis get admission to the MBBS coursein another region far remote from their own and other allied factors.There can be no doubt that the policy of ensuring admissions tothe MBBS course on all-India basis is a highly desirable policy,based as it is on the postulate that India is one nation and everycitizen of India is entitled to have equal opportunity for educationand advancement, but it is an ideal to be aimed at and it may notbe realistically possible, in the present circumstances, to adopt it,for it cannot produce real equality of opportunity unless there iscomplete absence of disparities and inequalities — a situation whichsimply does not exist in the country today.”

32. In order to balance between the claims of legal and factualequality, it was observed that even if the Union Government decides toconduct an all-India entrance examination for admission to medicalcourses, a certain percentage of seats may be reserved for candidatesbased on residence. Further, it was held that wholesale reservation of100 percent based on domicile for admission in educational institutions isunconstitutional:

“20 […] We agree wholly with these observations made by thelearned Judge and we unreservedly condemn wholesalereservation made by some of the State Governments on the basisof ‘domicile’ or residence requirement within the State or on thebasis of institutional preference for students who have passed the AB

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Aqualifying examination held by the university or the State excludingall students not satisfying this requirement, regardless of merit.We declare such wholesale reservation to be unconstitutional andvoid as being in violation of Article 14 of the Constitution.”

33. This Court then determined the quantum of reservation basedBon residence and institutional preference. This Court observed thatreservation based on residence in MBBS shall not exceed 70 percent ofthe total seats available, after taking into account other reservationsvalidly made. It was also observed that the Indian Medical Councilmust consider revising the percentage of reservation based on theresidence criteria every three years. The remaining 30 percent seatsCwere available for admission on an all-India basis irrespective of theresidence of the candidate:

“21. But, then to what extent can reservation based on residencerequirement within the State or on institutional preference forstudents passing the qualifying examination held by the universityDor the State be regarded as constitutionally permissible? It is notpossible to provide a categorical answer to this question for, aspointed out by the policy statement of the Government of India,the extent of such reservation “would depend on several factorsincluding opportunities for professional education in that particularEarea, the extent of competition, level of educational developmentof the area and other relevant factors”. It may be that in a Statewhere the level of educational development is woefully low, thereare comparatively inadequate opportunities for training in themedical speciality and there is large scale social and economicbackwardness, there may be justification for reservation of a higherFpercentage of seats in the medical colleges in the State and suchhigher percentage may not militate against “the equality mandateviewed in the perspective of social justice”. So many variablesdepending on social and economic facts in the context ofeducational opportunities would enter into the determination ofGthe question as to what in the case of any particular State, shouldbe the limit of reservation based on residence requirement withinthe State or on institutional preference. But, in our opinion, suchreservation should in no event exceed the outer limit of 70per cent of the total number of open seats after taking intoaccount other kinds of reservations validly made. The H

Medical Education Review Committee has suggested that the outerlimit should not exceed 75 per cent but we are of the view that itwould be fair and just to fix the outer limit at 70 per cent. We arelaying down this outer limit of reservation in an attempt to reconcilethe apparently conflicting claims of equality and excellence. Wemay make it clear that this outer limit fixed by us will be subject toany reduction or attenuation which may be made by the IndianMedical Council which is the statutory body of medical practitionerswhose functional obligations include setting standards for medicaleducation and providing for its regulation and coordination. Weare of the opinion that this outer limit fixed by us must graduallyover the years be progressively reduced but that is a task whichwould have to be performed by the Indian Medical Council. Wewould direct the Indian Medical Council to consider within a periodof nine months from today whether the outer limit of 70 per centfixed by us needs to be reduced and if the Indian Medical Councildetermines a shorter outer limit, it will be binding on the Statesand the Union Territories. We would also direct the Indian MedicalCouncil to subject the outer limit so fixed to reconsideration at theend of every three years but in no event should the outer limitexceed 70 per cent fixed by us. The result is that in any eventat least 30 per cent of the open seats shall be available foradmission of students on all-India basis irrespective of theState or university from which they come and suchadmissions shall be granted purely on merit on the basis ofeither all-India entrance examination or entranceexamination to be held by the State. Of course, we need notadd that even where reservation on the basis of residencerequirement or institutional preference is made in accordance withthe directions given in this judgment, admissions from the sourceor sources indicated by such reservation shall be based only onmerit, because the object must be to select the best and mostmeritorious 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 thatat the PG level, merit cannot be compromised since compromising thestandard of medical facilities would be detrimental to national interest.

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“22. […] all admissions to the post-graduate courses in anyinstitution should be open to candidates on an all-India basis andthere should be no restriction regarding domicile in the State/UnionBterritory in which the institution is located”.

The policy statement filed by the Government of India was asfollows:

“22. […] So far as admission to the institutions of post-graduatecolleges and special professional colleges is concerned, it shouldbe entirely on the basis of all-India merit subject to constitutionalreservations in favour of Scheduled Castes and Scheduled Tribes.”

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35. Consequently, it was held that it would be desirable to notprovide reservation based on residence in PG medical courses, thoughthere shall be a maximum of 50 percent reservation based on institutionalDpreference. Therefore, a doctor who has passed the MBBS course froma certain college may be given preference in the same college foradmission to PG course. It was observed:

“22. [..] We are therefore of the view that so far as admissions topost-graduate courses, such as MS, MD and the like areEconcerned, it would be eminently desirable not to providefor any reservation based on residence requirement withinthe State or on institutional preference. But, having regard tobroader considerations of equality of opportunity and institutionalcontinuity in education which has its own importance and value,Fwe would direct that though residence requirement within the Stateshall not be a ground for reservation in admissions to post-graduatecourses, a certain percentage of seats may in the presentcircumstances, be reserved on the basis of institutionalpreference in the sense that a student who has passed MBBScourse from a medical college or university, may be givenGpreference for admission to the post-graduate course in the samemedical college or university but such reservation on the basis ofinstitutional preference should not in any event exceed 50 percent of the total number of open seats available for admission tothe post-graduate course.”

(emphasis supplied)

The observations were to guide both medical and dental coursesin State-run institutions.

36. The Bench in Pradeep Jain (supra) clarified its decision inDinesh Kumar (I) (supra).It was observed by the Bench that theadmission to the AIQ quota seats (30 percent in UG and 50 percent inPG) shall only be through a uniform all-India examination. The suggestionof the Union Government that the admission to the AIQ seats in UG andPG medical courses could be made through marks received in theindividual qualifying examinations was rejected observing:

“It would be wholly unjust to grant admissions to students assessingtheir relative merits with reference to the marks obtained by them,not at the same qualifying examination where standard of judgingwould be reasonably uniform but at different qualifyingexaminations held by different State Government or Universitieswhere the standard of judging would necessarily vary and not bethe same. That would be blatantly violative of the concept of equalityenshrined in Article 14 of the Constitution.”

Further, the Bench also clarified the demarcation of seats for theAIQ. It was observed that 30 percent of the total number of seats werenot demarcated for AIQ. Rather, after deducting the seats filled byreservation, 30 percent of the remaining seats are reserved for AIQ. Asan example, if there are 100 seats available, of which 30 percent of theseats are reserved for SC and ST (that is 30 seats), 30 percent of theremaining seats (that is 21 of the remaining 70 seats) must be filled bythe AIQ. It was observed:

“5. We would also like to clear up one misunderstanding whichseems to prevail with some State Governments and universities inregard to the true import of our Judgment dated June 22, 1984.They have misinterpreted our Judgment to mean that 30% ofthe total number of seats available for admission to MBBScourse in a medical college should be kept free from reservationon the basis of residence requirement or institutional preference.That is a total misreading of our Judgment. What we have said inour 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 competitionand admission to such 30% open seats should not be based onresidence requirement or institutional preference but students from AB

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Aall over the country should be able to compete for admissions tosuch 30% open seats. To take an example, suppose there are 100seats in a radical college or university and 30% of the seats arevalidly reserved for candidates belonging to Scheduled Castesand Scheduled Tribes. That would leave 70 seats available forothers belonging to non-reserved categories. According to ourBJudgment, 30% of 70 seats, that is, 21 seats out of 70 and not30% of the total number of 100 seats, namely, 30 seats, must befilled up by open competition regardless of residence requirementor institutional preference.”

37. Pursuant to the directions given by the Bench in DineshCKumar (I) (supra), the Medical Council of India formulated a schemefor holding an all- India medical entrance examination for admission tothe AIQ seats in UG and PG. However, difficulties arose in theimplementation of the scheme. This Court thought it necessary to ironout the creases and by an order dated 16 September 1985, directed theDGovernment of India, in the Ministry of Health to convene a meeting ofthe Deans of Medical colleges, representatives of the Medical Councilof India and Dental Council of India. A revised scheme was formulatedand submitted to this Court for approval. Various State Governmentsraised objections to the revised scheme before a two-Judge Bench inDinesh Kumar (II) v. Motilal Nehru Medical College[55]. The StateEof Tamil Nadu submitted that since the total percentage of reservationvaries in different States, if the AIQ seats are calculated after deductingthe seats in which reservations are validly made, the total AIQ seats in amedical college in the State would be inversely proportional to thepercentage of reservation in the State. This Court addressed this submissionFand observed that it would then be open to the State Governments toreduce the number of seats available in the AIQ by increasing thepercentage of reservation in the State. Therefore, this Court altered theformula for seat matrix adopted in Pradeep Jain (supra) and clarified inDinesh Kumar (I) (supra). This Court held that for UG, 15 percent of the total seats in each medical college or institution shall be demarcated forGAIQ (as per the revised scheme of the Central Government), withouttaking into account any reservation validly made. For PG, it was held that25 percent of the total seats would be reserved for the AIQ, without takinginto account reservation validly made. It was observed:

H55 1986 (3) SCC 727

“5. […] There can be no doubt that if in each State, 30 per cent ofthe seats were to be made available for admission on the basis ofAll-India Entrance Examination after taking into accountreservations validly made, the number of seats which would beavailable for admission on the basis of All-India EntranceExamination would vary inversely with the percentage ofreservations validly made in that State. If the percentage ofreservations is high as in the State of Tamil Nadu or the State ofKarnataka, the number of seats available for admission on thebasis of All-India Entrance Examination would be relatively lessthan what would be in a State where the percentage of reservationsis low. There would thus be total inequality in the matter of makingavailable seats for admission on the basis of All-India EntranceExamination. It would be open to a State Government to reducethe number of seats available for admission on the basis of All-India Entrance Examination by increasing the number of reservedcategories or by increasing the percentage of reservations. Wetherefore agree with the Government of India that the formulaadopted by us in our main judgment dated June 22, 1984 [DrPradeep Jain v. Union of India, (1984) 3 SCC 654] fordetermining the number of seats which should be made availablefor admission on the basis of All-India Entrance Examination shouldbe changed. We would direct, in accordance with the suggestionmade in the Scheme by the Government of India, that not lessthan 15 per cent of the total number of seats in each medicalcollege or institution, without taking into account anyreservations validly made, shall be filled on the basis ofAll-India Entrance Examination. This new formula is in ouropinion fair and just and brings about real equality of opportunityin admissions to the MBBS/BDS course without placing thestudents in one State in an advantageous or disadvantageousposition as compared to the students in another State. The sameformula must apply also in regard to admissions to the postgraduatecourses and instead of making available for admission on all-Indiabasis 50 per cent of the open seats after taking into accountreservations validly made, we would direct that not less than 25per cent of the total number of seats without taking into accountany reservations, shall be made available for being filled on thebasis of All-India Entrance Examination. This suggestion of the AB

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AGovernment of India deserves to be accepted and the objectionto 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 totalBseats available after reservation made for backward classes under Article15, Dinesh Kumar (II) applies reservation based on residence againstthe total number of seats available without excluding the reserved seats.

38. In Rajeshwaran (supra), the respondent filed a writ petitionbefore the Madras High Court seeking a direction to the Union of IndiaCto provide reservation for the SC and ST categories in the AIQ seats setaside for MBBS and BDS courses. The Madras High Court prima facieobserved that there was no specific order by this Court not to applyreservation as under Article 15 in the AIQ seats. It was further observedthat the AIQ seats were demarcated only to overcome reservation basedDon residence. The Madras High Court allowed the writ petition directingthe Central Government to provide 15 percent reservation for SC andST in the AIQ seats. The Union of India filed an appeal against theorder of the Madras High Court. This Court in appeal referring to thejudgment in Dinesh Kumar (II) (supra) observed that since this Courthas settled the scheme, it would not be appropriate to determine if theEcandidates of SC and ST categories are entitled to reservation in theAIQ seats since: (i) each State will have different categories of SC andST, and the Central list would also vary making it difficult to adjust seats;and (ii) States anyway provide reservation for SC and ST categories inthe 85 percent seats demarcated for them. It was observed:F“7. In respect of undergraduate course, the scheme works outlike 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% forScheduled Tribes, the State will fill up 15% seats for ScheduledCaste candidates and 10% for Scheduled Tribe candidates, of theGremaining 75 seats 60 seats will be filled by the State Governmentas unreserved and 15 seats will be earmarked for the all-Indiaquota.

8. Inasmuch as 15% all-India quota has been earmarked underthe scheme framed by this Court and that scheme itself providesthe manner in which the same should be worked out, we do notH

think, it would be appropriate to travel outside the said provisionsto find out whether a person in the position of the petitioner wouldbe entitled to plead in the manner sought for because each of theStates could also provide for reservation for the Scheduled Casteand Scheduled Tribe category in respect of 85% of the seatsavailable with them. If we meddle with this quota fixed, we arelikely to land in innumerable and insurmountable difficulties. EachState will have different categories of Scheduled Castes andScheduled Tribes and the Central Government may have adifferent category and hence adjustment of seats would becomedifficult. The direction fixing 15% quota for all-India basis takesnote of reservations and hence the High Court need not havemade any further directions.”

39. A Constitution Bench of this Court in Saurabh Chaudri(supra), decided on the constitutional validity of reservation based ondomicile and institutional preference in admission to PG courses inGovernment-run medical colleges. This Court held that there was noreason to depart from the ratio laid down in Pradeep Jain (supra) thatreservation based on institutional preference and residence in PG coursesis constitutionally valid. The ratio of Pradeep Jain (supra) was referredto and the Court observed:

“ 70. We, therefore, do not find any reason to depart from theratio laid down by this Court in Dr Pradeep Jain. The logicalcorollary of our finding is that reservation by way of institutionalpreference must be held to be not offending Article 14 of theConstitution of India.”

The Constitution Bench also increased the total percent of AIQseats from 25 percent (as held in Dinesh (II) (supra)) to 50 percent ofthe seats reasoning that the situation has improved to a great extent andthat the country has produced numerous PG doctors with the passage oftime.

40. In Buddhi Prakash Sharma v. Union of India[56], the writpetitioners challenged the communication issued by the DirectorateGeneral of Health Services[57] on 7 December 2004 directing the Statesto provide information on the total number of PG medical seats under 56 (2005) 13 SCC 6157 “DGHS”

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Athe 50 percent AIQ seats after excluding the seats reserved for SCand ST categories. By an order dated 21 February 2005, this Courtdirected the States to provide the total number of seats in PG medicalcourses, without any exclusion. This Court observed that the DGHSwas not permitted to change the basis of the seat distribution byidentifying the AIQ seats after applying reservation for the SC and STBcategories. This Court observed that the total seats in AIQ would be50 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 quotaof seats was 25%, the number of postgraduate seats was workedCout on the basis of total seats without any exclusion. It is becauseof the letter dated 7-12-2004 requiring the information about 50%of all-India quota after excluding the reserved seats that this messhas been created. None permitted DGHS to change the basisthis year. The result of communication is that in many States theDtotal number of postgraduate seats has gone down than what itwas when the all-India percentage was 25% instead of it beingalmost double since the direction of this Court was that from thisacademic year it would be 50%.

4. From the material placed before us, it is evident that some ofEthe States have not furnished the requisite information to DGHS.We direct that the total number of postgraduate seats onall-India basis would be 50% of the total number of seatswithout any exclusion and the calculation of seats would bedone on the same basis which was adopted when all-Indiaquota was 25%. The Chief Secretaries of States/UnionFTerritories, who have not supplied the requisite information toDGHS on this basis, are directed to supply the same latest by5.00 p.m. on 1-3-2005 and file a compliance affidavit in this Court.Failure to supply the information would be seriously viewed as aviolation of this Court’s direction by the Chief SecretariesGconcerned. The counselling will commence on the dates alreadyannounced as we have no doubt that entire information aboutavailability of the seats would be furnished by all concerned toDGHS.”

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41. In Jayakumar (supra), an appeal was filed before this Courtagainst the judgment of the Madras High Court in a Public InterestLitigation[58] seeking reservation for SC and ST candidates in the 15 percentAIQ seats in the UG medical course. The Madras HC disposed of thePIL observing that reservation was a constitutional mandate and thatthe Government could implement reservation in the AIQ seats in thefuture. This Court allowed the appeal in terms of the decision inRajeshwaran (supra) where it was held that there shall be no reservationfor the AIQ seats. It observed:

“6. In our considered opinion, the question has been directlyconsidered in the decision of this Court in R. Rajeshwaran, referredto supra, and it has been indicated as to how incongruous it wouldbe, if the provisions of reservation be made applicable to the seatsmeant for being filled up on the basis of all-India entranceexamination. Following the judgment of this Court in R.Rajeshwaran as well as in Dr. Dinesh Kumar we hold that theHigh Court was wholly in error in observing that the requirementof reservation should also apply to the seats to be filled up on thebasis of all-India entrance examination.”

42. In Abhay Nath (supra) the Union of India sought clarificationof the order passed in Buddhi Prakash Sharma (supra) wherein it washeld that the 50 percent seats for AIQ seats shall exclude reservation. Athree-judge Bench reviewed the order and held that there may bereservation for the SC and ST students in the AIQ. The order of thisCourt 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 filledup by the various colleges in India, 50% of the seats shall beadmitted on the basis of All-India Entrance Examination. It wasdirected that out of the total number of seats, 50% of the openseats shall be filled up by All-India Entrance Examination.

2. Thereafter in Dinesh Kumar (Dr.) v. Motilal Nehru MedicalCollege [(1985) 3 SCC 22] , it was explained: (SCC p. 28, para 5)

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reservation validly made, whatever seats remain available fornon-reserved categories, 30% of such seats at the least, shouldbe left free for open competition and admission to such 30% openseats should not be based on residence requirement or institutionalpreference but students from all over the country should be ableto compete for admissions to such 30% open seats. To take anexample, suppose there are 100 seats in a medical college oruniversity and 30% of the seats are validly reserved for candidatesbelonging to Scheduled Castes and Scheduled Tribes. That wouldleave 70 seats available for others belonging to non-reservedcategories. 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 regardlessof residence requirement or institutional preference.”

3. And in Dinesh Kumar (Dr.) (II) v. Motilal Nehru MedicalCollege [(1986) 3 SCC 727] , it was clarified: (SCC p. 733, para5)

“5. … that not less than 25 per cent of the total number ofseats without taking into account any reservations, shall be madeavailable for being filled on the basis of All-India EntranceExamination. This suggestion of the Government of India deservesto be accepted and the objection to it must be overruled.”

4. In Saurabh Chaudri v. Union of India [(2003) 11 SCC146] the percentage of seats to All-India Entrance Examinationwas increased to 50%.

5. Another writ petition was filed in this Court in BuddhiPrakash Sharma v. Union of India [(2005) 13 SCC 61] . Inthis 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 ofpostgraduate seats on all-India basis would be worked out on thebasis of 50% of the total number of seats without any exclusion.The order indicated that out of 50% that are allocated are to beadmitted by All-India Entrance Examination and it was made clearthat 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/STstudents, it would be difficult for the State to give the entire

percentage to reservation out of the 50% seats left for them to befilled 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 inthe All-India Entrance Examination. Therefore, it is suggestedthat the Union of India has decided to provide 22.5% reservationfor SC/ST candidates in all-India quota from the academic year2007-2008 onwards.

7. The Union of India seeks clarification of the order passedin Buddhi Prakash Sharma v. Union of India [(2005) 13 SCC61] passed on 28-2-2005, to the effect that 50% seats for all-India quota shall exclude the reservation. We review that orderand make it clear that the 50% of the seats to be filled upby All-India Entrance Examination shall include thereservation to be provided for SC/ST students. To thatextent 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 petitionwas filed seeking to quash the prospectus issued by Maharishi DayanandUniversity, Rohtak, Haryana for the academic session 2007-2008 to theextent that it did not provide any reservation of seats for SC and STcandidates. One of the contentions raised by the petitioners was thatthis Court in Abhay Nath (supra) had directed that reservation for SCand ST candidates be provided in PG medical courses. However, thethree-Judge Bench in Gulshan Prakash (supra) clarified that thedirections in Abhay Nath (supra) would be applicable only to AIQ seatsand would have no bearing on admissions in the State quota for the PGcourse. It was further clarified that if the State of Haryana has decidedto not provide reservation in PG medical courses for seats in the StateQuota, this Court cannot direct the State to provide such reservation. Itwas observed:

“29. Inasmuch as the Government of Haryana has not prescribedany reservation for the postgraduate courses, neither the Universitynor any other authority can be blamed for approving and publishingthe prospectus which does not contain reservation for postgraduatecourses. The clarificatory order of this Court in Abhay AB

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ANath [(2009) 17 SCC 705] is applicable for the institutes managed/run by the Central Government and unless the State Governmenttakes any decision for granting reservation in MD/MS/PG diplomaand MDS courses, it cannot be made applicable. As the StateGovernment is competent to make the reservation to a particularclass or category, until it is decided by the State, as being a policyBmatter, there cannot be any direction to provide reservation at thePG level. The State of Haryana has explained that reservation inundergraduate medical courses is being provided strictly as pertheir policy. The postgraduate degree/diploma in medical educationis governed by the Medical Council. Even the Medical Council ofCIndia has not followed strict adherence to the rule of reservationpolicy in admission for SC/ST category at the postgraduate level.”

44. Having traced the evolution of the AIQ in UG and PG medicaland dental courses, we answer the following questions: (i) whether thisCourt in Pradeep Jain (supra) held that the AIQ seats that were to beDfilled by an open all- India examination should be free of reservation forthe socially and educationally backward classes, and SC and ST asenabled by Article 15(4); and (ii) whether reservation in the AIQ can beprovided only pursuant to a direction of this Court.

45. This Court in Pradeep Jain (supra) was deciding on theEconstitutional validity of reservation based on domicile/residence. Havingheld that residence-based reservation is constitutionally valid, the nextquestion that this Court was tasked with was adjudicating the quantumof residence-based reservation that could be permitted. Referring to thedecision of this Court in Jagdish Saran v. Union of India[60], it was heldthat there cannot be wholesale reservation (that is, 100 percentFreservation). It was observed that a certain percentage of seats must befilled by open merit by an all-India examination without reservation basedon residence. The Medical Education Review Committee had suggestedthat 75 percent of the seats in a medical college shall be reserved forresidents of the State. This Court decided that it would be fair to reserveG70 percent of the seats for residents of the State. Therefore, 30 percentof the seats were to be filled through an all-India Examination. Thiswould mean that candidates from all across the country could competeagainst the 30 percent seats available in State-run medical colleges. In this context, this Court had observed, “such reservation should in noevent exceed the outer limit of 70 per cent of the total number of openseats after taking into account other kinds of reservations validly made”(paragraph 21). The Bench further observed that “at least 30 percent ofthe open seats shall be available for admission of students on all-Indiabasis irrespective of the State or University from which they come andsuch admissions shall be granted purely on merit onthe basis of eitherall-India entrance examination or entrance examination to be held by theState” (paragraph 21). The observation of this Court that AIQ seatsmust be filled purely on the basis of merit, cannot be interpreted to meanthat there shall be no reservations in the AIQ seats. As noted in SectionD.1 of this judgement, merit must be socially contextualised andreconceptualized according to its distributive consequences where itfurthers substantive equality in terms of Articles 15 (4) and 15 (5) of theConstitution. The reference to merit in paragraph 21 of the judgmentmust be read with the previous observations made in the judgment.Identifying the issue before this Court, Justice PN Bhagwati writing fora three-judge Bench formulated the following question:

“1. […] The question is, whether, consistently with the constitutionalvalues, admissions to a medical college or any other institution ofhigher learning situate in a State can be confined to those whohave their “domicile” within the State or who are resident within the State for a specified number of years or can any reservationin admissions be made for them so as to give them precedenceover those who do not possess “domicile” or residential qualificationwithin the State, irrespective of merit.”

(emphasis supplied)

46. While discussing the constitutional validity of domicile-reservation, it was observed that selection of candidates for admissionbased on the all-India open examination would further merit since itwould permit the selection of the ‘best minds in the country’. In thiscontext, it was observed that claims that would weigh with this Court injustifying the departure from the principle of merit-based selection are:(i) claim of State interest, where the students by view of their residenceare expected to settle down and serve their State; and (ii) the regions’claim of backwardness (paragraph 16). Further, it was observed thatthough theoretically, admissions in medical colleges should be based onan all-India examination since it would further merit and would provide AB

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Aequality of opportunity to candidates across the country, keeping in viewthe differing levels of social, economic, and educational development indifferent areas, factual equality would not be attained. Therefore, theobservation in paragraph 21 of the judgment that the AIQ seats shall befiled through an all-India examination purely on merit, must be interpretedonly with reference to the discussion made on residence-basedBreservation and the necessity of an all-India examination for admissionto medical and dental courses. References to ‘merit’ must therefore beread in the context of merit vis-à-vis residence reservation. This is furtherevident from the observation in paragraph 21 of the judgment where itwas observed that “atleast 30 per cent of the open seats shall beCavailable for admission of students on all-India basis irrespectiveof the State or university from which they come and such admissionsshall be granted purely on merit on the basis of either all-Indiaentrance examination or entrance examination to be held by theState’. The Bench thought it fit that admission through an all-Indiaentrance examination would further merit, enabling the best minds allDover the country to study medicine. The observations of the Benchextracted below also aid the interpretation that we have arrived at:

“10. The philosophy and pragmatism of universal excellencethrough equality of opportunity for education and advancementacross the nation is part of our founding faith and constitutionalEcreed. The effort must, therefore, always be to select the bestand most meritorious students for admission to technical institutionsand medical colleges by providing equal opportunity to all citizensin the country and no citizen can legitimately, without seriousdetriment to the unity and integrity of the nation, be regarded asFan outsider in our constitutional set-up. Moreover, it would beagainst national interest to admit in medical colleges or otherinstitutions giving instruction in specialities, less meritorious studentswhen more meritorious students are available, simply becausethe former are permanent residents or residents for a certainnumber of years in the State while the latter are not, though bothGcategories are citizens of India. Exclusion of more meritoriousstudents on the ground that they are not resident within the Statewould be likely to promote substandard candidates and bring aboutfall in medical competence, injurious in the long run to the veryregion. “It is no blessing to inflict quacks and medical midgets onHpeople by wholesale sacrifice of talent at the threshold. Nor can

the very best be rejected from admission because that will be anational loss and the interests of no region can be higher thanthose of the nation.” The primary consideration in selection ofcandidates for admission to the medical colleges must, therefore,be merit. The object of any rules which may be made for regulatingadmissions to the medical colleges must be to secure the best andmost meritorious students.”

47. This aspect was further clarified by the Bench in DineshKumar (I) where this Court observed that the Union Government andthe Medical Council for India had not taken any initiative to conduct anall-India entrance examination for admissions to the AIQ seats. Thesuggestion that admission to the AIQ could be made based on the marksobtained in the qualifying examination held by different States or/andUniversities was rejected on the ground that the standard of assessmentwould not be uniform. It is thus evident that the intention of this Court inPradeep Jain (supra)in creating an AIQ was solely to provide candidatesfrom across the country the opportunity to study medicine in colleges inother parts of the country as well, owing to the unequal number of medicalcolleges (and opportunities) in different States.

48. Reference was made to reservation of backward classes onlyfor the limited purpose of determining the seat matrix. The observationin paragraph 21 in Pradeep Jain (supra) on the calculation of seat matrixwas clarified in Dinesh Kumar (I) (supra). The Bench had clarifiedthat after reservations (for the SC, ST and OBC provided by the States)validly made, 30 percent of the remaining seats would be reserved forAIQ. The graphical representation of the demarcation is as under:

(Figure 1)

49. Therefore, according to the clarification in Dinesh Kumar(I)(supra)on the demarcation of seats, the first bifurcation should be betweenreserved and non-reserved seats, and the seats remaining in the opencategory must be bifurcated into State Quota and AIQ. It was thus, a AB

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Athree-fold vertical reservation, with the reserved category not beingconsidered within either the AIQ or the State Quota. The logical fallacyof this method of demarcation of seats is that different States providevarying percentages of reservation. Therefore, the total percentage ofunreserved seats would inversely depend on the percentage ofreservation provided by the State. The State of Tamil Nadu raised thisBobjection in Dinesh Kumar (II) (supra).Pursuant to this, it was heldthat the AIQ seats shall be determined without excluding any reservationvalidly made. The seats were first bifurcated to State quota and AIQ,and the vertical and horizontal reservations (for example, for personswith disabilities) were accommodated within the State quota. The revisedCseat matrix is graphically represented below:

D

(Figure 2)

50. When the judgment in Dinesh Kumar (II) (supra)wasEpronounced, the Union Government had not yet made any decision onproviding reservation in AIQ seats. It was subsequently in 2009 that theUnion Government had taken a policy decision to provide reservationfor the SC and ST categories in the AIQ. It is important to note that inJayakumar (supra) and Rajeshwaran (supra), the petitioners had soughtFa direction from this Court for providing reservation in the AIQ seats. InRajeshwaran (supra), this Court declined to ascertain if a person wouldbe entitled to reservation in the AIQ seats. It was observed that ifreservations for SC and ST categories is to be provided in the AIQseats, it would cause difficulty in adjusting seats since the State and theCentral lists would differ. However, when the Union GovernmentGsubmitted before this Court in Abhay Nath (supra) that it had taken thedecision to reserve seats in the AIQ, it was clarified that there was noimpediment against the implementation of such reservation.

51. In Buddhi Prakash Sharma (supra), there was a slightdeviation from the settled jurisprudence. This Court had held that theHtotal number of PG seats in AIQ would be 50 percent of the total seats without any exclusion for reservation. The Bench had interpreted theobservation in Dinesh Kumar(II) (supra)that the AIQ seats would bedetermined without excluding reservations (as depicted by figure 1) tomean 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 percentAIQ seats in PG medical and dental seats would be inclusive ofreservation for SC and ST categories.

D.3 The Executive’s power to introduce reservation in AIQseats

52. We next address the argument of the petitioners that the UnionGovernment should have filed an application before this Court beforenotifying reservations in the AIQ since the AIQ scheme is a creation ofthis Court. We are unable to agree to this argument. The UnionGovernment in Abhay Nath (supra)had made a submission to this Courtof its intention to provide reservations in the AIQ for the SC and STcandidates since until then in view of the confusion on demarcation ofthe seat matrix, there was no clarity on whether reservations could beprovided in the AIQ. This Court in Abhay Nath (supra)clarified thatreservations are permissible in the AIQ seats. Therefore, the order inAbhay Nath (supra) was only clarificatory in view of the earlierobservations in Buddhi Prakash Sharma (supra). Interpreting the orderto mean that the Union of India sought the permission of this Courtbefore providing reservation would amount to aiding an interpretationthat would foster judicial overreach. Therefore, the argument that theUnion Government should have approached this Court before notifyingthe reservations for the OBC and EWS categories in the AIQ seats iserroneous.

53. In Abhay Nath (supra), the Union Government had apprisedthis Court of its decision to provide reservation for the SC and STcategories in the AIQ. It had then, as a policy decision decided to onlyprovide reservation for the SC and ST categories. The Parliament enactedthe Central Educational Institutions (Reservation in Admission) Act 2006in view of the enabling provision in Article 15(5). Section 3 stipulatesthat there shall be 15 percent reservation for the SC, 7.5 percentreservation for the ST, and 27 percent reservation for the OBC categoryin Central Educational Institutions. A Constitution Bench in Ashoka AB

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AKumar Thakur v. Union of India[61] upheld the Constitutional validityof 27 percent reservation for the OBC category provided under the Actof 2006. Though the Act of 2006 would not be applicable to the seatsearmarked for AIQ in State-run institutions since it would not fall withinthe definition of a Central educational institution under the Act, the Unionof India in view of Article 15(5) has the power to provide reservationsBfor OBCs in the AIQ seats. It is not tenable for the States to providereservation in the AIQ seats since these seats have been ‘surrendered’to the Centre. It would also lead to the anomaly highlighted in DineshKumar (II) (supra) since the percentage of reservation provided bydifferent States differ, which would lead to an unequal percentage ofCseats available in the AIQ in different States. This is also coupled withthe fact that the SC, ST and OBC lists are not uniform across States.Thus, it is the Union Government’s prerogative to introduce reservationin AIQ seats.

D.4 Changing the Rules of the GameD54. The impugned notice providing reservation for OBC and EWScategories in the AIQ was issued on 29 July 2021, after the registrationfor the examination had closed on 18 April 2021. It is the contention ofthe petitioners that the rules of the examination could have only beenchanged before the last date for registration. The petitioners argue thatEthe candidates registered for the exam having a particular seat matrix inmind and that the change in the seat matrix after registration would bearbitrary. However, the Union Government has argued that Clause 11 inthe Information Bulletin released by the National Board of Examinationsduring the registration process provided that information regarding seatmatrix would be separately released by the counselling authority. ClauseF11 reads as follows:

“11.1. Reservation of PG seats shall be as per the norms of theGovernment of India and respective State Governments as maybe applicable.

11.2. A separate handbook informing details of the counsellingGprocess and applicable reservation shall be released by thedesignated counselling authority for NEET-PG 2021.”It is evident from a reading of clause 11.2 that applicants areinformed of the seat matrix (that is, the applicable reservation) only when H61 (2008) 6 SCC 1

a separate handbook is released by the counselling authority. Thecandidates would possess no knowledge of the seat matrix at the time ofregistration.

55. In Manjusree v. State of AP[62], the selection of candidates toten vacant posts of District and Session Judges (Grade II) in the AndhraPradesh State Higher Judicial Service was the subject-matter of theappeal. The selection and appointments to the post of District & SessionJudges (Grade II) are governed by the Andhra Pradesh State HigherJudicial Service Rules 1958. The rules prescribe that one-third of theposts are to be filled by direct recruitment. However, the method ofrecruitment is not prescribed in the Rules. Therefore, the High Courtdetermines the method of selection when the vacancies are notified. Anadvertisement was issued on 28 May 2004 calling for applications. TheAdministrative Committee by its resolution dated 30 November 2004decided to conduct a written examination for seventy-five marks and aninterview for twenty-five marks, and prescribed minimum category marksfor the written examination. The exam was held on 30 January 2005.The results were declared on 24 February 2005. The merit list wasprepared by aggregating the marks obtained in the written examinationout of 100 and the interview for 25 marks. However, the Full Court didnot agree with the selection list and another committee of judges wasconstituted to prepare the list. The committee was of the view that theselect list changed the proportion of marks of the written exam to theinterview 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 thatthere must be minimum marks for the interview component, in the samecut-off percentage as applied to the written test component. Anotherselection list was prepared based on the revised selection criteria.Candidates whose names were featured in the first select list but wereabsent in the second list, challenged the second selection list. A three-judge Bench of this Court held that the scaling down of marks in thewritten exam in proportion to the maximum of 75 marks was valid sinceit was in consonance with the resolution dated 30 November 2004.However, it was observed that introducing minimum marks in theinterview component ‘after the entire selection process (consistingof written examination and interview) was completed, would amountto changing the rules of the game after the game was played which AB

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Ais clearly impermissible.’ The facts of the case in Manjusree(supra)differ from the factual matrix before us since the impugned noticenotifying reservation in the AIQ was introduced even before theexamination was held. Further, unlike the case before us, there was inthat case, a change in the selection criteria.

B56. In Maharashtra State Road Transport Corporation v.Rajendra Bhimrao Mandve[63], the selection to the post of drivers andconductors was in question. The writ petitioners satisfied the qualificationsand possessed the requisite experience. A total of 12.5 percent markswas initially allotted to the personal interview component. However, achange in the criteria for selection was introduced after the driving testCwas conducted. This Court then held the new criteria was invalid sinceit proposed to change the rules of the game after the game had begun.In Umrao Singh v. Punjabi University[64], this Court held that theselection norms for selection to the posts of lecturers could not havebeen relaxed after the last date for making the application and after theDprocess for selection had started. In Tej Prakash Pathak v. RajasthanHigh Court[65], the Rajasthan High Court had called applications for thepost of ‘translators’. According to the Rajasthan High Court Staff ServiceRules 2002, 100 marks was prescribed for the written exam and 50marks for the personal interview. After the exam was conducted, 75percent marks was prescribed as the qualifying marks in the writtenEexamination. Justice Chelameshwar, writing for a three-judge Benchobserved that changing the ‘rules of the game’ midstream or after thegame has been played is an “aspect of retrospective law-making power”.This Court held that the principle applied in Manjusree (supra), withoutfurther scrutiny would not further public justice and efficientFadministration. This Court referred the question to a larger Bench in thefollowing terms[66]:

“15. No doubt it is a salutary principle not to permit the State orits instrumentalities to tinker with the “rules of the game” insofaras the prescription of eligibility criteria is concerned as was done G

63 (2011) 10 SCC 5164 (2005) 13 SCC 36565 (2013) 4 SCC 54066 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 notHappoint all candidates who had secured the minimum percentage of marks.

in C. Channabasavaih v. State of Mysore [AIR 1965 SC 1293],etc. in order to avoid manipulation of the recruitment process andits results. Whether such a principle should be applied in the contextof the “rules of the game” stipulating the procedure for selectionmore particularly when the change sought is to impose a morerigorous scrutiny for selection requires an authoritativepronouncement of a larger Bench of this Court. We, therefore,order that the matter be placed before the Hon’ble Chief Justiceof India for appropriate orders in this regard.”

57. In Dr Prerit Sharma v. Dr Bilu[67], the information bulletin forNEET-SS 2020 was issued on 3 August 2020. The examination washeld on 15 September 2020, and the results were declared on 25September 2020. Clause 5.16 of the information bulletin that was releasedwhen the registration process had begun stipulated that there would beno reservation in the SS courses. The medical counselling committeeissued the counselling scheme for AIQ for NEET-SS course 2020-21 inwhich it was mentioned that there would be no reservation for the SScourses by referring to the judgments of this Court in Dr PreetiSrivastava (supra) and Dr Sandeep Sadashivrao v. Union of India[68].The counselling for the SS course was postponed. The State of TamilNadu issued GOMS No. 462 dated 7 November 2020 stipulating that 50percent of the SS seats in Government medical colleges in the State ofTamil Nadu would be reserved for in-service candidates. This Courtobserved that when the process for admissions to the SS courses hadbegan, it was notified through the information bulletin that there wouldbe no reservation in the SS courses. Therefore, it was held thatreservation for in-service doctors shall not be permitted for the currentacademic year.

58. The impugned notice providing reservation for the OBC andEWS categories in the AIQ seats was issued after the registration hadclosed but before the exam was conducted. Thus, it would not amountto 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 changesin the selection criteria or the procedure for selection. Those 67 Civil Appeal No. 3840 of 2020

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cases are distinguishable from the case before us since theimpugned notice did not alter the selection criteria;

(ii) The judgments referred to applied the principle of notchanging the rules of the game mid-way after the selectionprocess (of exams and interviews) was completed; and B

(iii) Clause 11 of the information bulletin specifies that thereservation applicable would be notified by the counsellingauthority before the beginning of the counselling process,unlike the facts in Dr Prerit Sharma (supra). Thecandidates while applying for NEET-PG are not providedCany information on the distribution of the seat matrix. Suchinformation is provided by the counselling authority onlybefore the counselling session is to begin.

E. Conclusion

59. In view of the discussion above we hold that the reservationDfor OBC candidates in the AIQ seats for UG and PG medical and dentalcourses 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,EArticles 15 (4) and 15 (5) become a restatement of aparticular facet of the rule of substantive equality that hasbeen set out in Article 15 (1);

(ii) Merit cannot be reduced to narrow definitions ofperformance in an open competitive examination which onlyFprovides formal equality of opportunity. Competitiveexaminations assess basic current competency to allocateeducational resources but are not reflective of excellence,capabilities and potential of an individual which are alsoshaped by lived experiences, subsequent training andGindividual character. Crucially, open competitiveexaminations do not reflect the social, economic and culturaladvantage that accrues to certain classes and contributesto their success in such examinations;

(iii) High scores in an examination are not a proxy for merit.HMerit should be socially contextualized and reconceptualized as an instrument that advances social goods like equalitythat we as a society value. In such a context, reservation isnot at odds with merit but furthers its distributiveconsequences; A

(iv) Articles 15 (4) and 15 (5) employ group identification as amethod through which substantive equality can be achieved.BThis may lead to an incongruity where certain individualmembers of an identified group that is being givenreservation may not be backward or individuals belongingto the non-identified group may share certain characteristicsof backwardness with members of an identified group. TheCindividual difference may be a result of privilege, fortune,or circumstances but it cannot be used to negate the role ofreservation in remedying the structural disadvantage thatcertain groups suffer;

(v) The scheme of AIQ was devised to allot seats in State-runmedical and dental institutions in which students from acrossthe country could compete. The observations in PradeepJain (supra) that the AIQ seats must be filled by merit,must be read limited to merit vis-à-vis residence reservation.This Court in Pradeep Jain (supra) did not hold thatreservation in AIQ seats is impermissible; D

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(vi) The Union of India filed an application before this Court inAbhay Nath (supra) placing the policy decision of theGovernment to provide reservation for the SC and STcategories in the AIQ seats since until then in view of theconfusion on demarcation of seat matrix, there was noclarity on whether reservations could be provided in theAIQ seats. The Union Government was not required toseek the permission of this Court before providingreservation in AIQ seats. Therefore, providing reservationin the AIQ seats is a policy decision of the Government,which will be subject to the contours of judicial review similarto every reservation policy; F

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Athis Court in Buddhi Prakash Sharma (supra) haderroneously construed the clarification in Dinesh Kumar(II) to mean that there should be no reservation in AIQseats. Therefore, the order in Abhay Nath (supra) wasonly clarificatory in view of the observations in BuddhiPrakash Sharma (supra); andB

(viii) Clause 11 of the information bulletin specifies that thereservation applicable to NEET-PG would be notified bythe counselling authority before the beginning of thecounselling process. Therefore, the candidates whileapplying for NEET-PG are not provided any information onCthe distribution of seat matrix. Such information is providedby the counselling authority only before the counsellingsession is to begin. It thus cannot be argued that the rulesof the game were set when the registration for theexamination closed.

D60. The challenge to the constitutional validity of OBC reservationin AIQ seats introduced through the notice dated 29 July 2021 is rejectedin view of the above discussion.

61. Pending application(s), if any, relating to the issue of OBCreservation implemented through the notice dated 29 July 2021 standEdisposed of.

ORDER

This order has been divided into the following sections to facilitateanalysis:F

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

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E.Union Government’s Decision to Revisit the EWS Criteria...........................................................13

F.The Findings of the Pandey Committee.................14

G.Submissions of Counsel..........................................22

HH.Analysis...................................................................33

A. Genesis of the Controversy

1. These writ petitions challenge the reservation for OtherBackward Classes[1] and Economically Weaker Section[2] in the All IndiaQuota[3] seats in the National Eligibility cum Entrance Test (Post Graduate)examination[4]. The criteria for the determination of the EWS for the tenpercent reservation in pursuance of The Constitution (One Hundred andThird Amendment) Act 2019 has come under challenge. The permissibilityof reservations in the AIQ seats has been addressed in the judgmentdated 20 January 2022. This order will only deal with the challenge tothe criteria for determination of the EWS category.

2. An information brochure was released on 23 February 2021scheduling the NEET-PG 2021 examination on 18 April 2021. Theregistration process commenced on 23 February 2021 and the last datefor registration was 15 April 2021. However, in view of the second waveof the COVID -19 pandemic, the Ministry of Health and Family Welfare[5]issued a notice dated 15 April 2021 postponing the examination untilfurther notice. By an official statement issued on 3 May 2021, the NEET-PG 2021 examination was postponed by another four months. TheNational Board of Examinations in Medical Sciences, New Delhi issueda notice on 13 April 2021 rescheduling the NEET-PG 2021 examinationto 11 September 2021. The Directorate General of Health Services,MoHFW issued a notice on 29 July 2021 to implement 27 percent OBCreservation (non-creamy Layer) and 10 percent EWS reservation in the15 percent undergraduate[6] and 50 percent PG AIQ seats in the currentacademic 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 implement27% OBC reservation (Non-creamy later) and 10% EWSreservation in the 15% AIQ UG seats and the 50% All India Quotaseats (MBBS/BDS and MD/MS/MDS) (contributed by the State/

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AUTs). This reservation will take effect from the current Academicsession 2021-22.

Consequently, the overall reservation in 15% UG and 50% PG AllIndia Quota seats would be as follows:

SC-15%BST-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”C

3. The Constitution was amended by the Constitution (OneHundred and Third Amendment) Act 2019, including Articles 15(6) and16(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 explanationDto Article 15 was also included by the constitutional amendment whichreads as follows:

“Explanation- For the purposes of this article and article 16,“economically weaker sections” shall be such as may be notifiedby the State from time to time on the basis of family income andEother indicators of economic disadvantage”

4. The Department of Personnel, Public Grievances & Pensions,Department of Personnel & Training, Government of India on 17 January2019[7] in pursuance of the explanation to Article 15(6) issued an executiveorder (O.M No. 36039/1/2019) defining the criteria for identification ofFEWS. The relevant extract of the OM is as under:

“3. EXEMPTION FROM RESERVATION

3.1 “Scientific and Technical” posts which satisfy all the followingconditions can be exempted from the purview of the reservationorders by the Ministries/Departments:G(i) The posts should be in grades above the lowest grade in GroupA of the service concerned.

(ii) They should be classified as ‘scientific or technical” in termsof Cabinet Secretariat (OM No. 85/11/CF-61(1) dated 28.12.1961), according to which scientific and technical posts forwhich qualifications in the natural sciences or exact sciences orapplied sciences or in technology are prescribed and theincumbents of which have to use that knowledge in the dischargeof their duties.

(iii) The posts should be ‘for conducting research’ or ‘fororganising, guiding and directing research’.

3.2 Orders of the Minister concerned should be obtained beforeexempting any posts satisfying the above condition from thepurview of the scheme of reservation.

4. CRITERIA FOR INCOME & ASSETS

4.1 Persons who are not covered under the scheme of reservationfor SCs, STs and OBCs and whose family has gross annualincome below Rs 8 lakh (Rupees eight lakh only) are to beidentified as EWSs for benefit of reservation. Income shall alsoinclude 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 followingassets shall be excluded from being identified as EWS, irrespectiveof 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 notifiedmunicipalities;

iv. Residential, plot of 200 sq. yards and above in areas other thanthe notified municipalities.

4.2. The property held by a “Family” in different locations ordifferent places/cities would be clubbed while applying the landor property holding test to determine EWS status.

4.3 The term “Family” for this purpose will include the personwho seeks benefit of reservation, his/her parents and siblings belowthe age of 18 years as also his/her spouse and children below theage of 18 years.”

5. The petitioners are doctors who appeared for the NEET-PG2021 examination. The petitioners filed a writ petition on 24 August 2021

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Achallenging the validity of the notice issued on 29 July 2021 providingreservation for the OBC category and EWS category in NEET-PGexamination and sought quashing of the notice. One of the argumentsraised by the petitioners was that the criteria under the OM for thedetermination of the EWS category is arbitrary.BB. Issues raised by this Court

6. Notice was issued on 6 September 2021. The NEET-PG resultswere declared on 28 September 2021. The arguments were heard inpart by the Bench on 7 October 2021. The Bench questioned the basisof using Rs 8 lakhs as the income limit for identifying EWS. Two weeksCwere granted to the Union Government to file an affidavit clarifying thebasis 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 ofthe Rs 8 lakhs income limit for determining the EWS. Mr KM Nataraj,learned Additional Solicitor General informed the Bench that he wouldDbe in a position to file an affidavit in two days. The Bench formulatedspecific questions on the Rs 8 lakhs income limit and required disclosurefrom the Union Government. The order dated 21 October 2021 statedthus:

E“2. Mr K M Nataraj, the learned Additional Solicitor General statesthat he has received oral instructions and would be in a position tofile the affidavit within a period of two days. At the same time,during the course of the hearing, we have formulated certain issuesin regard to the criteria adopted for identification of the EWScategory. We propose to formulate them in this order so that theFUnion government can bring clarity to the issues by filing itsaffidavit. The specific issues on which a disclosure shall be madein the affidavit are as follows:

(i) Whether the Union government undertook an exercisebefore arriving at the criteria for the determination of theGEWS category;

(ii) If the answer to (i) above is in the affirmative, whether thecriteria are based on the report submitted by Major GeneralSinho (2010). If the criteria are based on Major GeneralSinho’s report, a copy of the report should be placed on theHrecord of these proceedings; NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS.667[DR. DHANANJAYA Y CHANDRACHUD, J.](iii)Whether the EWS category is over inclusive;A(iv)The income limit in the criteria for the determination of thecreamy layer of the OBC category and the EWS categoryis the same, namely, Rs 8 lakhs. While the creamy layer inthe OBC category is identified for excluding a section ofthe community that has ‘economically progressed’ to suchBan extent that the social backwardness of the communitydiminishes, the EWS category is identified to include thesegment which is ‘poorer’ when compared to the rest ofthe community. Therefore (a) the income criterion in respectof the OBC category is aimed at exclusion from a classCwhile in the case of the EWS category, it is aimed at inclusion;and (b) the OBC category is socially and educationallybackward and, therefore, has additional impediments toovercome as compared to those belonging to the generalcategory. In these circumstances, would it be arbitrary toprovide the same income limit both for the OBC and EWSDcategories;(v)Whether the differences in the GDP/per capita income ofdifferent States have been accounted for while arriving atRs 8 lakhs income limit;(vi)Whether the differences in the purchasing power betweenErural and urban areas have been accounted for while fixingthe income limit; and(vii)According to the notification of Union government (OMNo. 36039/1/2019), families which have an income lowerthan Rs 8 lakhs would be excluded from the EWS categoryFif the family holds assets of (a) five acres of agriculturalland and above; (b) a residential plot of 100 square yardsand above in notified municipalities and 200 square yardsand above in areas other than notified municipalities; and(c) a residential flat of 1000 square feet and above. In thiscontext, a disclosure may be made on the following aspects:G(i)On what basis has the asset exception been arrived at andwas any exercise undertaken for that purpose; WP(C) 961/2021;

(ii) (ii) Whether municipalities as required under the exceptionhave been notified; H

668SUPREME COURT REPORTS

A(iii)The reason why the residential flat criterion does notdifferentiate between metropolitan and nonmetropolitanareas.

3. We grant liberty to the Union government to place its affidaviton record making a full disclosure on the record on theBissues raised above since the Court must be apprised of thenature of the exercise undertaken while fixing the incomecriterion for the EWS category. In this context, it would besignificant to note that the explanation to Article 15(6) whichwas introduced as a result of the 103rd ConstitutionalAmendment in 2019, specifically enunciates that for theCpurposes of Article 15(6) and for Article 16(6), economicallyweaker sections shall be such as may be notified by theState from time to time on the basis of family income andother indicators of economic disadvantage. It is in thiscontext that it would be necessary for the Union governmentDto disclose before the Court the nature of the exercise whichwas undertaken to categorize the economically weakersection as mandated by the provisions of the explanation toArticle 15. We may clarify at this stage that the Court isnot embarking upon any issue of policy while requiring sucha disclosure to be made before it, but will determine as toEwhether the constitutional requirements have been dulycomplied with. 4 Counter affidavit, if any, be filed on orbefore 26 October 2021. 5 List the Writ Petitions on 28October 2021 as the first item on the Board.”

C. The Initial Stand of the Union GovernmentF8. On 25 October 2021, the Union Government deferredcounselling due to the pendency of the petitions. The Union Governmentfiled an affidavit justifying the EWS criteria on 26 October 2021, makingthe following submissions:

G(i)Exercise was undertaken by the Union Government todetermine the EWS category: The criteria for thedetermination of the EWS category was arrived at afterdue deliberation within the Ministry of Social Justice andEmpowerment and all the concerned stakeholders. Evenbefore the OM dated 17 January 2019 was issued, the Union H

Government had set up the Major Sinho Commission in 2005for identification of the EWS and determining theconstitutional permissibility of reservation for the class; A

(ii) The criteria for the determination of the EWS category doesnot suffer from over-inclusiveness: Any cut-off criteria islikely to have some degree of assumption. The fixation ofBRs 8 Lakhs is based on criteria for the determination of thecreamy layer of the OBCs. The Major General SinhoCommission had recognised that the income limit for thedetermination of the creamy layer of the OBCs could beused for the identification of the EWS category. The OMCdated 17 January 2019 provides further checks in the formof the assets exemption so that only the needy receive thebenefit of reservation under Articles 15(5) and 16(6);

(iii) The same income limit criteria used for determining boththe EWS and the creamy layer of OBCs is not arbitrary:DThe exercise conducted to determine the creamy layer forthe purpose of the OBC reservation would be equallyapplicable for the determination of the EWS category sincethe premise is that persons having substantial economicstanding may not receive the benefits of the reservation.The courts can only determine if there is ‘some material’Efor arriving at the income criteria. The courts cannot reviewthe criteria;

(iv) Urban- rural and State divide: Though there will bedifferences in the purchasing power and GDP of differentareas (Urban/Rural; amongst States, amongst differentdistricts in a State), it is sufficient if the criteria is based on‘some material’. There is no need to prescribe differentincome limits for rural and urban families since EWS isintended mostly for students in higher education andemployment. Since there is constant migration from ruralto urban areas for education and employment, a separatecriteria will not be needed. It is sufficient if the criteria isbased on broad probabilities since it is impossible to achievemathematical precision; FG

(v) Asset Exception: The assets exception is provided to ensurethat the reservation is provided only to the needy. ‘Notified H

Amunicipalities’ refers to all municipalities legally constituted;and

(vi) Other Arguments:The total seats have been increased by56 percent in MBBS and by 80 percent in PG in the last sixyears. Therefore, the total number of seats available forBthe general category has increased. The issue of whetherreservation for the EWS would violate the law laid down inIndra Sawhney v. Union of India[8]since it exceeds the 50percent reservation cap is the subject matter of referenceto a five-judge Bench in Janhit Abhiyan v. Union of India[9],which is adjudicating upon the constitutional validity of theCConstitution (One Hundred and Third ConstitutionAmendment) Act 2019.

D. Major Sinho Commission Report

9. At this stage, a reference must be made to the Major SinhoDCommission report since the Union Government has strongly relied onthe observations in the report on using the income limit for identifyingthe creamy layer of the OBC for determining the EWS. The MajorSinho Commission was constituted for determining the EWS among theunreserved categories. Chapter III of the Commission’s report notedthat the welfare measures (excluding reservation which would requireEother considerations) may be extended to the EWS category.[10] ChapterIV of the report discusses the parameters to determine the EWS category.The relevant parameters for the identification of EWS were enumeratedas follows:

F8 AIR 1993 SC 477

9 WP (C) 55/2019

10 Internal page 20 of the Report. The Report noted, “On the basis of the above, thisCommission gathers the Constitutional and legal understanding that ‘Backward Classes’cannot be identified for providing reservation in employment and admission in educationalinstitutions 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 orderGto provide any quantum of reservation to them (EBCs) two essential aspects need to beconsidered:

(i) Social, educational and economic backwardness, and(ii)Until a different direction is given by the Supreme Court or aConstitutional Amendment is made, the 50 per cent limit for reservationmakes a binding on the State for any further increase in the quantum ofHreservation to any class.”

(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, theCommission arrived at the following conclusions:

(i) A part of the general category formed a class of poor alongwith poor of other social groups. Poor households resultedfrom landlessness, high women illiteracy, marginal farmholdings and part-time/temporary work in the unrecognizedsector. Such people have to cope with kutcha housing, poorhygiene and inability to spend on basics;

(ii) Socio-economic condition of the general category is betterthan other social groups but segments within the generalcategory 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 general category andthe OBCs are comparable.

The Major Sinho Commission made the followingrecommendations for the identification of the EWS:

(i) Socio-economic backwardness prevails at a communitylevel. However, economic backwardness prevails at a familylevel. Thus, the family should be the unit for identificationof EWS; and

(ii) The BPL families must be identified as EWS. This viewwas also expressed by various States. While the creamylayer criteria could be used for the identification of EWS,the creamy layer was a concept exclusive to a class thatsuffers both social and educational backwardness. Theeconomic needs of EWS differs and hence just one criterionof BPL or setting creamy layer of OBC as the upper limit A

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Awould not be effective to ensure intended benefits to EWS.The percentage of BPL among the general category wasless compared to the backward class, however the poor ofthe general category (though above BPL) still suffered frommalnutrition, poor health, and low standard of living.Therefore, families with income less than the current non-Btaxable limit of Rs. 1,60,000 (as may be revised from timeto time) and the BPL families should be identified as EWS.

A

E. Union Government’s Decision to Revisit the EWS Criteria

11. On 28 October 2021, the learned Solicitor General sought anadjournment, requesting that the petitions be heard after the DiwaliCvacation. Thereafter, on 25 November 2021, the learned Solicitor Generalstated that the Union Government had taken a considered decision torevisit the criteria for determining EWS in accordance with the provisionsof the explanation to Article 15 of the Constitution inserted by theConstitution (One Hundred and Third Constitution Amendment) Act 2019.DThe Solicitor General submitted that a period of four weeks would berequired to conduct this exercise and the counselling would remainsuspended during such period. Acceding to the Union Government’srequest to revisit the criteria, this Court posted the petitions for hearingon 6 January 2022.

E12. The Union Government by its order dated 30 November 2021constituted a Committee[12] to review the criteria for determination of theEWS category. The terms of reference of the committee stated thus:

“a) To re-visit the criterion given in OM dated 17.01.2019 indetermining EWS category keeping in view the observations ofthe Hon’ble Supreme Court in their order dated 21.10.2021,Fb) To examine various approaches so far followed in the countryfor determining economically weaker sections, and

c) Recommend criteria that may be adopted for identifying EWScategory in future.”

GThe Pandey Committee submitted its report to the Governmenton 31 December 2021.

13. Thereafter, the Union Government filed an affidavit beforethis Court submitting that it has accepted the recommendations of the H12 “Pandey Committee”

Pandey Committee including its recommendation that the new criteriafor identifying EWS must be applied prospectively and not in the currentadmission year of 2021-2022.

F. The Findings of the Pandey Committee

14. It is important to advert to the findings of the Pandey Committeeon the issues raised by this Court by its order dated 21 October 2021.The Pandey Committee’s short responses to the issues raised by thisCourt are given in the table below[13]:

13 Internal page number 29 of the Report

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A15. The Pandey Committee observed that income limit is the mostappropriate criteria to identify EWS as opposed to a multiple-criteriaapproach because the latter requires complex and large-scale surveys.The periodic surveys may not be able to capture the evolving nature ofthe EWS category. Further, over-reliance on consumption patterns wouldresult in beneficiaries hiding or avoiding the consumption of goods andBservices. The report stated thus:

A

“3.3.1.24. The problem with a multiple-criteria approach is that itrequires complex, large-scale surveys. While it may be possible toperiodically do such detailed socio-economic surveys, it should benoted that our idea of EWS keeps evolving. For example, using theCrefrigerator or a phone connection as one of the parameters mayhave been valid for exclusion in 2011 but may not be true today.Moreover, if we start to rely too heavily on certain consumptionpatterns to identify beneficiaries, we will end up with people gaming the system by hiding or avoiding certain goods and services.”D16. The Pandey Committee sought to justify the use of Rs 8 lakhsincome-cut off for determining the EWS category by placing reliance onthe Major Sinho Commission report, which it submitted, proposed using theconcept of “creamy layer” in OBCs to determine the criteria for identifyingEWS among the general category. Further, it noted that despite having asimilar threshold of Rs 8 lakhs, the criteria applied for the determination ofEcreamy layer in OBCs and EWS is different. The report contains thefollowing table enumerating the differences between the two criteria[14]:

Table III: Creamy Lawyer among OBCs vs EWS criteria F

G

H14 Internal page number 44 of the Report

The Pandey Committee also submitted that if adequate investmentsare made and deductions are taken advantage of, the effective incometax exemption limit is Rs 7 to 8 lakhs. The relevant portion of the reportis reproduced below:

“3.3.1.39 The current annual income tax exemption limit is Rs2,50,000. However, in February 2019 the Government throughFinance Act amended the Income Tax Act to provide relief to thelow-income individuals wherein anyone having taxable income upto five lakhs of rupees per annum was exempt from paying incometax. Whatever tax that was calculated for the income exceedingRs.2,50,000 was given back to the taxpayer by way of rebatewhich effectively meant that individuals having taxable incomeup to 5 lakhs of rupees had their entire income tax free. As aresult, even persons having gross income up to Rs. 6.50 lakhs arenot be required to pay any income tax if they make investments inprovident funds, specified savings, insurance etc. In fact, withadditional deductions such as interest on a home loan up to Rs 2lakh, interest on education loans, National Pension Schemecontributions, medical insurance, medical expenditure on seniorcitizens etc, persons having even higher income do not have topay any tax. In addition, salaried persons get an additional standarddeduction of Rs 50,000. Income from capital gain on listed shares/units up to Rs 100,000 too is exempt from tax. Effectively, a personearning up to around Rs 8 lakhs are not be required to pay anyincome tax from the financial year 2019-2020 onwards, providedhe makes some specified savings etc. Further, Income fromagriculture too is not included for the purpose of income tax in thiscase.

….

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3.3.1.42 It should be noted that the Rs 8 lakh annual gross annualincome limit for inclusion into EWS is -is for the entire family as against the individual income taxexemption limit of Rs 5 lakh -is without any deduction’s available various provisions of incometax such as 80C, standard deductions etc.

-includes agricultural income. The individual income tax exemptionlimit does not include agricultural income.

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A3.3.1.43 As per current income tax norms, the effective incometax on individuals is zero for those with incomes up to INR 5lakhs. As discussed in the foregoing paras after taking advantageof the various provisions for savings, insurance etc., the tax-payermay not need to pay any tax up to an annual income of INR 7-8lakhs. Thus, the EWS cut-off, if applied to just an individual, is inBthe ballpark of income tax requirements for zero tax liability. Onceapplied to include family income and farm income, however, itbecomes much more demanding.”

In the Pandey Committee’s opinion, a lower-income limit wouldincrease the risk of excluding deserving candidates. However, to avoidCundeserving candidates from taking the benefit of reservation, a set ofsimple asset criteria should be introduced to weed out such candidatesinstead of lowering the income limit.[15]

17. The Pandey Committee submitted that uniform criteria shouldbe imposed for identifying EWS because prescribing different incomeDlimits based on the differences in purchasing power in urban and ruralareas would create complications, especially on account of migration. Itwill also lead to administrative difficulty in implementation. The PandeyCommittee concluded thus:

“3.3.2.5 In the present context of establishing a uniform incomeEcriterion across the country for determining EWS, this judgmentdraws focus on the need to have a uniform criterion for determiningEWS across the country, as it relates to the practical implementationof such criterion. It was argued before the Supreme Court inJaishree Laxman Rao Patil (Supra) that the establishment of suchstandards by the states may lead to vote-bank politics and that aFnational body that would be charged with establishing such uniformcriteria would be able to objectively, “without being pressurisedby the dust and din of electoral politics” be able to provide benefits.

3.3.2.6 Therefore, the Committee is of the view having differentincome limits for different geographies or areas is neither feasibleGnor desirable.”18. The Pandey Committee submitted that the Rs 8 lakhs cut-offis not over-inclusive because data shows that the majority of thecandidates fall within the lower income brackets of below Rs 5 lakhs.

H15 Para 3.3.1.34 at internal page 44 of the Report.

The Pandey Committee relied on the data on household incomedistribution for qualified EWS candidates in UPSC, NEET-UG 2020 andJEE (2021) examinations. The Pandey Committee’s conclusion isreproduced below:

“3.3.3.6 After analysing the data of the three different entranceexaminations. The committee is of the view that there is noevidence that the current cut-off of Rs 8 lakhs is leading to amajor problem of the inclusion of undeserving candidates.Nonetheless, the committee observed that the distribution of thedeserving candidates will have a long “tail” for various factorssuch as income volatility, size of family, the inclusion of agriculturalincome, high cost of living in certain locations and so on. Therefore,despite the fact that the bulk of the qualifying candidates is belowRs 5 lakhs, a somewhat higher threshold is needed which ensuresthat deserving beneficiaries in the tail of the distribution are notexcluded.

3.3.3.7 Thus, the committee is of opinion that the income criteriaof INR 8 lakh per annum performs well based on evidence andshould be kept unchanged for identifying EWS.”

19. The Pandey Committee was of the view that there should beno interference with the existing criteria relating to exclusion of familieshaving agricultural land of 5 acres or more from the category of EWSeven if their gross income is less than Rs 8 lakhs. The Pandey Committeeobserved that it is the marginal and small farmers who have farm holdingsup to 5 acres whose monthly income is in the range of Rs 10,000. ThePandey 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 theirincome is way behind that of the medium and large farmers. Afiner categorisation of farmers as per the size of land holdingsreveals that the marginal and small farmers’ average monthlyearning 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 monthlyincome only in the range of around Rs 10,000, the committee is ofthe view, there is no need to interfere in the criterion of 5 acres ofagricultural land.”

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A20. The Pandey Committee opined that the residential asset criteriafor identifying EWS must be removed. The Pandey Committee notedthat there are practical difficulties in identifying a common denominatorthat can be used in rural and urban areas for determining EWS. ThePandey Committee submitted that it could be difficult to apportion theshare of the nuclear family in the residential house of a joint family.BFurther, in rural and semi-rural areas, house plots are also used for storinggrains, agricultural equipment and sheltering cattle. It will be difficult todemarcate the criteria of the residential house. In urban areas, variousmeasurements are used like carpet area, built-up area and super-built-up area. It will place an onerous burden on a candidate to get theseCareas measured and calculated for obtaining certificates from thedesignated authority. The Pandey Committee also observed that criteriaof residential house or plot area does not encapsulate the value of theland which may differ according to geographic location. The PandeyCommittee concluded thus:D“3.3.4.31…. The Committee is therefore of the view that a similarapproach could be adopted for EWS wherein residential assetexclusion criterion may be omitted for simplicity, ease, andconvenience. In short, an asset criterion on residential plot size orflat floor area should not be imposed unless there is clear evidenceEthat the system is being widely gamed in practice. Even if therewas evidence of misuse, the Committee is of the opinion that itmay be easier to mine the wealth of digital information to establishreal income rather than get caught in a complex debate aboutownership and valuation.”F21. Thus, effectively the only revision that the Pandey Committeehas recommended is the exclusion of the residential asset criteria indetermining the category of EWS. The Pandey Committee in its reportobserved that applying the new criteria would disturb the ongoingadmissions and lead to delay. It was further stated that since the presentEWS criteria was being applied since 2019, no serious prejudice wouldGbe caused if it is implemented in the present year as well. The relevantobservations of the Pandey Committee are reproduced below:

“4.19….

…..

(iv) The Committee deliberated upon the vexed question as tofrom which year the criteria suggested in his Report should beused, adopted and made applicable. The Committee found thatthe existing criteria [the criteria applicable prior to this Report] isin use since 2019. The question of desirability of the existing criteriaarose and a possibility of its being revisited arose only recently inNeil Aurelio Nunes and ors. versus Union of India and ors. and abatch of petitions towards the later part of 2021. By the time thisHon’ble Court started examining the said question and the CentralGovernment decided to revisit the criteria by appointing thisCommittee, the process with respect to some appointments /admissions have taken place ormust have been at an irreversibleand advanced stage. The existing system which is going on since2019, if disturbed at the end or fag-end of the process wouldcreate more complications than expected both for the beneficiariesas well as for the authorities.

In case of admissions to educational institutions, sudden adoptionof a new criteria inevitably and necessarily would delay the processby several months which would have an inevitable cascading effecton all future admissions and educational activities / teaching /examination which are time bound under various statutory / judicialtime prescriptions.

Under these circumstances, it is completely unadvisable andimpractical to apply the new criteria (which are beingrecommended in this report) and change the goal post in the midstof the on-going processes resulting in inevitable delay and avoidablecomplications. When the existing system is ongoing since 2019,no serious prejudice would be caused if it continues for this yearas well. Changing the criteria midway is also bound to result inspate of litigations in various courts across the country by thepeople/persons whose eligibility would change suddenly.

The Committee, therefore, after analysing the pros and cons onthis issue and after giving serious consideration, recommends thatthe existing and ongoing criteria in every on-going process whereEWS reservation is available, be continued and the criteriarecommended in this Report may be made applicable from nextadvertisement / admission cycle.”

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22. The petitions were listed on 5 January 2022 after a requestfor urgent listing was made by the Solicitor General. It was urged onbehalf of the Union Government that the OBC and EWS reservation(following the old criteria) must be allowed to be implemented in thepresent admission year. This has been contested by the petitioners.

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B23. By an order dated 7 January 2022, this Court upheld theconstitutional validity of the OBC reservation in AIQ medical and dentalUG and PG seats. The constitutionality of the criteria used for theidentification of the EWS category is yet to be decided. However, in theinterim, this Court directed that the counselling in NEET-PG 2021 andNEET-UG 2021 be conducted by giving effect to the reservation providedCby the notice dated 29 July 2021, including the 27 percent OBC reservationand 10 percent EWS reservation. The reasons for allowing EWSreservation for the current academic year 2021-2022 are provided inthis order.

G. Submissions of CounselD

24. Mr. Arvind Datar, learned Senior Counsel appearing for thepetitioners argued that the criteria fixed for determining the EWS categoryin the OM is prima facie arbitrary. In support of this argument, he madethe following submissions:

(i) The Constitution was amended by the Constitution (OneEHundred and Third Amendment) Act 2019 on 14 January2019 to provide 10 percent reservation for the EWS of theunreserved category. The OM laid down the criteria fordetermining the EWS category within three days ofintroducing the amendment. The Union Government did notFundertake any study before notifying the criteria on 17January 2019. It evident from the report submitted by thePandey committee that no exercise was undertaken beforenotifying the criteria in 2019;

(ii) The report of the Pandey committee only justifies the criteriaGbut does not submit the exercise that was undertaken forarriving at the criteria;

(iii) The Rs 8 lakhs income limit prescribed for determining theEWS category is arbitrary because:

(a) The income limit used to determine the creamy layerHcategory of OBC/BC/MBC is used to identify EWS.

The OBC category suffer from both social andeconomic backwardness unlike the unreservedcategory. The criteria for exclusion cannot be usedas the criteria for inclusion; A

(b) The prescription of the Rs 8 lakhs income limit wouldamount to treating unequal’s equally. For example,Bthe per capita income of States differs. Goa has aper capita income of Rs 4 lakhs, while Bihar has aper capita income of Rs 40,000. The Minister of Stateof the Ministry of Statistics and Programmeimplementation, while answering a ParliamentaryCquestion acknowledged the disparity in per capitaincome among States and the rural and urbanpopulations. The 8 lakhs income criteria is higher thanthe per capital income of any of the States;

(c) The Rs 8 lakhs cap is on the higher end and does notcover the section of those who are economicallyweaker. The affluent of the general category wouldtake away all the reserved seats available. Thus, theRs 8 lakhs limit is over-inclusive; D

(d) The Major Sinho Commission was constituted forthe purpose of determining the feasibility of providingEreservation for the EWS and the criteria fordetermining EWS category. The Commissionsubmitted its report in 2010 after extensive study andconsultation with all States. After undertaking suchan extensive study, it recommended that the criteriaFfor the determination of EWS shall be families thatfall under the BPL category and the familiesexempted 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 notinclude factors such as income volatility, size ofGfamily, and high cost of living in certain locations; (f)The current non-taxable limit is Rs. 2.5 lakhs. Aperson who saves Rs. 2-3 lakh a year to avail benefitsunder Section 80C of the Income Tax Act 1961cannot be termed as ‘economically weak’; H

A(g)According to the Seventh Pay Commission, a classIV employee receives a salary between Rs 18,000to 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 notBa bottom up approach. The Pandey Committee haserroneously interpreted the recommendations of theMajor Sinho Commission.

(iv) The Pandey Committee report does not have any reasonsto reject the recommendation of the Major SinhoCcommission. The report does not sufficiently address theissues raised by this Court by the order dated 21 October2021 because:

(a) The report acknowledges the absence of reliable data; (b)The report was submitted within three weeks withoutundertaking any study, unlike the Major SinhoCommission report which was submitted after fouryears of extensive research by placing reliance ondata, survey reports, and feedbacks; D

(c) The Pandey Committee did not consult with the StateGovernments/Union Territories while framing thereport. Without any consultation, it is recommendedthat there should not be different income limits fordifferent States or areas based on purchasing power; E

(d) The report stated that the family income of Rs 8 lakhdoes not seem to be over-inclusive as the ‘availableFdata’ on actual outcomes does not indicate over-inclusion. However, no data was submitted on ‘actualoutcomes’ to prove the claim; (e)The justification in the report for not considering thevarying costs of living in metropolitan and non-Gmetropolitan cities, rural and urban areas fordetermining the EWS criteria was that it would createcomplications. Such a justification is not reasonable; (f)The 5 acres agricultural land asset exemption isarbitrary since no exemption is made between wetHand dry lands; and (g)The Pandey committee has determined the criteriaAby ignoring the relevant factors and taking intoaccount irrelevant factors.

(v) The explanation to Article 15 states that for the purposesof Article 15 and Article 16, ‘economically weaker sections’shall be notified by the Statefrom time to time on the basisBof family income and other indicators of economicdisadvantage. Both the Union and the State Governmentshave the power to determine the EWS. However, thePandey committee did not even consult the States beforearriving at the criteria. The Kerala Government constitutedCa commission for determining the criteria for identifyingthe EWS. The Commission chaired by Mr. K SasidharanNair submitted its report on 29 November 2019recommending that Rs 4 lakhs gross family income mustbe used to identify the EWS category in Kerala; D

(vi) The open category seats are filled by the members of thegeneral category and the reserved categories. Accordingto the Rajan committee report submitted in Tamil Nadu,only 2.3 percent of the open category seats are occupiedby the forward community. By improperly identifying theEWS, the injustice suffered by the forward community isbeing compounded; E

(vii) This Court in Indra Sawhney (supra) held that a classidentified for the purposes of reservation under Articles 15and 16 must have common traits. The EWS class identifiedby the impugned criteria does not possess common traits;and F

(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 aworking guideline for determining ‘weaker sections of theGsociety’. In this case, a family having an annual income notexceeding Rs 18,000 was considered to be belonging to theweaker sections of the society.

A25. Mr. Anand Grover, senior counsel appearing for the intervenorsmade the following submissions challenging the criteria for thedetermination of EWS:

(i) The explanation to Article 15 states that EWS must bedetermined on the basis of ‘family income and otherBindicators of economic disadvantage’. Therefore, the criteriaused for the identification of the class must encompass boththe income and other indicators. However, the criteriadevised does not use any other indicator for economicdisadvantage; C(ii)The EWS category is identified by the income limit, andother indicators are used only to exempt a class falling withinthe income criteria. Indicators such as housing, literacy,education, and health have been ignored while identifyingthe EWS category; D(iii)The daily minimum wage in India is Rs 176 per day, whichis not even half of what is recommended by theParliamentary Committee. Around 76 percent of India’spopulation does not receive a minimum wage. Therefore,the criteria only identifies the creamy layer and not the‘poorest of the poor’; E

(iv) The income criteria must be the based on the income taxexemption slab that is Rs. 2.5 lakhs. Considering that thecut off of Rs. 2.5 lakhs was fixed in 2004, the amount maybe increased by 10-12 percent; and

(v) The Pandey committee report states that ‘despite the factFthat the bulk of the qualifying candidates are below Rs 5lakhs, a somewhat higher threshold is needed which ensuresthat deserving beneficiaries affected by various factors suchas income volatility, size of family, high cost of living incertain locations are not excluded.’ No other justification isGgiven to not prescribe Rs. 5 lakhs as the income limit.

26. On behalf of the Union of India, the Solicitor General, MrTushar Mehta, and the Additional Solicitor General, Mr KM Natraj, madethe following submissions:

(i) The rules of the game were not changed after the gameHhad begun since the reservation through the impugned notice

issued on 29 July 2021 was introduced much prior to theAdate on which the exams were conducted and before thecommencement of the counselling process. The NEET PGexamination schedule is as under:

(a) Release of Information Brochure: 23 February 2021

B

(b) Commencement of Registration Process: 23February 2021

(c) Last date of Registration: 15 March 2021

(d) Scheduled examination date: 18 April 2021

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

(f) New date of examinations announced on: 13 July2021

(g) New date for examination: 11 September 2021

Clause 11.1 of the information bulletin issued on 23 February2021 states that reservation of PG seats shall be as per thenorms of the Central Government and the respective StateGovernments. Clause 11.2 states that a separate handbookproviding information on the counselling process andapplicable reservation shall be released by the designatedcounselling authority for NEET-PG 2021. Therefore, theprocess begins only with the commencement of thecounselling process and not when the registration closes; D

EF

(ii) The reservation in AIQ seats in terms of the notice dated29 July 2021 has been already implemented in MDSadmissions for the current academic year 2021-2022 tocomply with the order of this court dated 11 August 2021 inDebraj Samanta & Ors. v. Medical CounsellingCommittee[17];

(iii) The EWS reservation is already in place and is now beingGextended to AIQ seats for UG/PG admission in medicaland dental courses. The EWS reservation has already beenimplemented for IITs and Central educational institutions,amongst others. The reservation is in compliance with The 17 WP (C) No. 680 of 2021

686SUPREME COURT REPORTS

AConstitution (One Hundred and Third Amendment) Act2019 and is in terms of the prescribed parameters of eligibilitycriteria, which, inter alia, includes gross income;

(iv) The reservation for EWS was introduced on broaderconsiderations of equality of opportunity and concerns ofBsocial justice. Around 550 EWS students for MBBS and1000 EWS students for PG medical courses would benefiteach year; from this reservation

(v) In the last six years, MBBS seats has been increased by 56percent from 54, 348 seats in 2014 to 84, 649 seats in 2020and the number of PG seats has been increased by 80Cpercent from 30,191 seats in 2014 to 54, 275 seats in 2020.

In the same duration, 179 medical colleges have beenestablished and now there are 558 medical colleges in thecountry. Thus, the reservation for the EWS category willnot be at the expense of other categories;

D(vi)The challenge to the constitutional validity of the Constitution(One Hundred and Third Amendment) Act 2019 has beenreferred to a Constitution Bench by the order dated 5 August2020 in Janhit Abhiyan v. Union of India & Ors.[18]. Whilereferring the challenge to the Constitution Bench, this Courtdid not stay the operation of the constitutional amendment.EThus, the implementation of the constitutional amendmentthrough the notice dated 29 July 2021 cannot be questionedin the present writ petitions;

(vii) The criteria for reservation for admission in the AIQ seatsis a question of policy and is within the powers of UnionFGovernment. The criteria depends on an overall assessmentand survey of requirements of various categories of personsto whom it is essential to provide facilities of highereducation. The contours of judicial review have beendefined by this Court in BK Pavithra v. Union of India[19],Gwhich is the “Barium Chemicals Test”. Thus, unless thecriteria for EWS is so grossly unfair that no person withcommon sense would arrive at it, there is no reason forjudicial interference; 18 WP (C) No. 55 of 2019H19 (2019) 16 SCC 129.

(viii) It is always possible to come up with an alternative criteria.AHowever, the judiciary is only required to assess whetherthe Government took into account only relevantconsiderations, showed application of mind and did not adoptan absurd view that no person with common sense wouldarrive at; B

(ix) The Union Government had undertaken an exercise for thedetermination of the EWS criteria as stipulated in the OM,which was arrived at after due deliberation within theMinistry of Social Justice and Empowerment and allconcerned stakeholders. Even before the OM came intoexistence, the Government had set up the Major GeneralSinho Commission in 2005. The Major Sinho Commissionin its report dated July 2010 arrived at various conclusionsincluding that the creamy layer threshold among the OBCscan serve as the basis to decide the upper limit for identifyingthe economically backward category among the unreservedcategory. Even then the criteria that applies to the OBCcreamy layer is significantly different from the criteriaapplicable for identifying the EWS. The criteria for the latteris more stringent; C

D

(x) The Pandey Committee has merely tweaked the Major SinhoCommission report. It has also considered relevant materialincluding the Socio Economic and Caste Census 2011. Basedon the material, it opined that economic weakness is acomplex issue and no single indicator can be used to capturethe level of poverty. The Pandey Committee observed thata multi-pronged criteria requires complex and large-scalesurveys. Since EWS is a dynamic concept and keepsevolving, it is suitable to have an income criteria. A criteriabased on consumption patterns would lead to people avoidingcertain goods and services for the purpose of securing thereservation benefit; E

F

G

(xi) The Major Sinho Commission report recommended usingthe income tax exemption limit. While the current incometax exemption limit is Rs 2.5 lakhs, the income of Rs 8lakhs effectively falls within the income tax exemption limitsince a tax rebate is provided for income upto Rs 5 lakhs H

688SUPREME COURT REPORTS

and with sufficient savings and investments, such a taxrebate can be obtained. Further, income tax exemption limitapplies to individuals but the 8 lakhs income limit applies tofamilies. If three members of a family annually earn Rs 3lakhs, they could fall outside the bracket of EWS; A

B(xii)If a lower income limit for identifying EWS is adopted, itwill be underinclusive. For being eligible for EWSreservation, the beneficiary household income has to be lessthan Rs 8 lakhs in the preceding financial year. Merely oneyear of windfall income earned by a household can pushthem out of the EWS category; C

(xiii) It is important to note that the state is not identifying thepoor but rather those belonging to the economically weakercategory. Such people may be above the poverty line;

(xiv) It will be difficult to adopt different income limits for urbanand rural areas because of internal migration and it wouldlead to implementation issues. A uniform criteria can beused to provide reservation; D

(xv) It will be discriminatory if EWS reservation is notimplemented in medical and dental colleges, when it is beingimplemented in other educational institutions; and E

(xvi) While the Pandey Committee has highlighted that thecertification process for determining the size of theresidential plot is a cumbersome process and hasrecommended doing away with the residential criteria forFexemption from the EWS category, it has also recommendedthat the new criteria should apply prospectively. The EWScandidates would have prepared their respective certificatesto satisfy the EWS criteria which are to be submitted oncethe counselling process begins for this admission cycle. Thus,no hardship would be caused to them for applying this year.GOn the other hand, if the new criteria is implemented fromthis year, it would disturb the entire admission process sincecandidates who qualify under the new criteria would haveto be given additional time to satisfy it and participate in thecounselling process.

H

H. Analysis

27. It has been brought to our notice that the counselling for theMDS courses has already begun, where the reservation for EWS inAIQ has been provided. On behalf of the petitioners, Mr Shyam Divanhas urged that a completely separate exercise is conducted for MDScourses. He has submitted that a separate notification is issued foradmission to MDS courses and a different schedule for examination andcounselling is followed. Be that as it may, the medical and dental courseshave been treated on the same footing with respect to the creation ofthe AIQ seats. The decision of this Court in Pradeep Jain v. Union ofIndia[20 ]which led to the inception of AIQ seats in State-run medical anddental colleges specifically clarified that the observations and directionsmade with regard to MBBS and MD/MS courses would equally applyto BDS and MDS courses.[21] The notification dated 29 July 2021introduced reservation for the OBC and EWS categories for AIQ seatsin both medical and dental courses. Thus, there has been parity betweenmedical and dental courses with regard to the implementation of theAIQ and the reservation policy governing seat distribution. Mr Divanhas also submitted that a separate challenge[22] has been mounted to thenotification dated 29 July 2021 by doctors possessing a Bachelor’s degreein Dental Surgery, which is being heard with the current batch of petitions.This argument, in fact, supports the conclusion that while the reservationin both the medical and dental courses has been challenged, any interimstay on the implementation of reservation for the former in view of thepending counselling process, would creat a position of disparity betweenthe two streams which have always been treated alike. Therefore, astay on reservation for this academic year for medical courses wouldlead to differential treatment being meted out to dental candidates whoare similarly placed.

28. On behalf of the petitioners, it has been urged that the rules ofthe game cannot be changed midway and hence, the notification dated29 July 2021 is liable to be set aside because it was issued after theregistration for the examination was closed. We have dealt with thisargument in detail in the judgement delivered on 20 January 2022 in thecurrent batch of petitions on the validity of OBC reservation in AIQ

20 1984 AIR 142021 Paragraph 23.22 WP (C) No. 1105 of 2021

A

B

C

D

E

F

G

H

Aseats. The information bulletin dated 23 February 2021 issued for thepurpose of conducting NEET examination specifically mentioned thatthe counselling authority would issue a separate handbook relating todetails of counselling process and applicable reservation. Thus, duringthe registration process which commenced on 23 February 2021 andended on 15 March 2021, the candidates knew that the details relating toBthe seat matrix would only be available during the counselling process.The notification dated 29 July 2021 was issued much before the examswere conducted and the counselling process was to begin. It cannot besaid that the rules for the game were set when the registrations closedon 15 March 2021 as has been urged on behalf of the petitioners.C29. In the judgement pronounced on 20 January 2022 on the validityof OBC reservation in AIQ seats, we have dealt with the challenge tothe power of the Union Government to implement reservation in AIQseats. The Union of India in view of Article 15 (5) and Article 15(6) ofthe Constitution has the power to provide reservation in AIQ seats sinceDthese seats have been surrendered to the Centre.

30. The argument of the petitioners on the validity of EWSreservation was not limited to the permissibility of reservation in theAIQ seats. Rather, the petitioners challenged the very criteria for thedetermination of the EWS, which would not only require us to hear theEmatter at length but would also entail us to hear all interested parties.However, in view of the delay in the counselling process due to thependency of this petition, we deem it necessary to allow the counsellingsession to begin with the existing criteria for the identification of theEWS category. Judicial propriety would not permit us to pass an interimorder staying the criteria for determination of the EWS category. It is aFsettled principle of law that in matters involving challenge to theconstitutionality of a legislation or a rule, the Court must be wary to passan interim order, unless the Court is convinced that the rules are primafacie arbitrary.[23] However, at this stage, without hearing all the interestedparties at length on arguments such as (i) extent of judicial review ofGmaterials relied on for providing reservation under Article 15; (ii) thepower of the States to determine EWS in view of the explanation toArticle 15 and in view of an alternative criteria proposed by the committeeformed by the Government of Kerala; and (iii) the meaning of EWS -the identification of the poor or the poorest, it would be impermissible for H23 Heart of Millions v. Union of India, 2014 (14) SCC 496

us to form a prima facie opinion on the alleged arbitrariness of the criteria.These arguments are only indicative of the wide range of argumentsthat have been raised before us, which would require proper considerationas it has wide ranging constitutional and societal implications on equalityand the law.

31. Additionally, any judicial intervention which would have changedthe stated reservation policy for this academic year 2021-2022 wouldhave delayed the admission process. The notification introducingreservation for OBC and EWS was issued on 29 July 2021. Thereafter,a notice dated 6 August 2021 was issued to allow candidates to changetheir category and EWS status. The window for editing one’s statuswas between 16 August 2021 and 20 August 2021. The exam wasconducted on 11 September 2021. The candidates who qualify for theEWS category would have prepared the necessary documentation tosatisfy the eligibility criteria for applying for reservation. Any change inthe eligibility status for reservation at this stage would have causedconfusion and led to possible litigation challenging such a change. Thiswould have only caused further delay. We are still in the midst of thepandemic and any delay in the recruitment of doctors would impact theability to manage the pandemic. Hence, it is necessary to avoid anyfurther delays in the admission process and allow counselling to beginimmediately. As a result, we allow the implementation of EWS reservationin 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 inO.M No. 36039/1/2019. The challenge to the validity of the criteriadetermined by the Pandey committee for the identification of the EWScategory shall be listed for final hearing in the third week of March2022.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Matters to be listed for final hearing.

A

BC

D

E

F

G

H