Full Judgment Text
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PETITIONER:
A. PEERIAKARUPPAN, ETC.
Vs.
RESPONDENT:
STATE OF TAMIL NADU & ORS.
DATE OF JUDGMENT:
23/09/1970
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
SHAH, J.C.
GROVER, A.N.
CITATION:
1971 AIR 2303 1971 SCR (2) 430
1971 SCC (1) 38
ACT:
Constitution of India, 1950, Arts. 14 and 15-Selection of
candidates to medical colleges--Colleges constituted into
different units-Ratio of seats to candidates different in
each unit-Candidates interviewed by ,different selection
committees-Propriety.
Interview system-Utility of
Classification of backward classes on basis of caste-
Validity of reservation of seats to backward classes-Proper
proportion.
HEADNOTE:
In 1970-71, selection of candidates to various medical
colleges in the State of Tamil Nadu was done on the
’unit wise’ basis. Under that scheme the medical colleges
in the city of Madras were constituted as ,one unit and each
of the other medical colleges in the mofussil was
constituted as a unit. In respect of each one of the units,
a separate selection committee was constituted. The
intending applicants were asked to apply to any one of the
committees but were advised to apply to the committee
nearest to their place of residence and, if they applied to
more than one committee, their applications were to be
forwarded by the Government to only one of the committees.
A few seats were reserved to certain special categories of
students and out of the remaining seats, 41 per cent were
reserved for students coming from socially and educationally
backward classes, scheduled castes and scheduled tribes, and
the rest were placed in the general pool.
All the applicants in the general pool who secured 110 or
more marks ,out of 200, calculated according to a certain
formula, were called for interview and selection committees
were authorised to give in addition, a maximum of 75 marks
at the interview. The award of these marks was on the basis
of the following five criteria, namely, (a) Sports or NCC
activities ’ (b) extra-curricular special services, (c)
general physical condition and endurance; (d) general
ability, and (e) aptitude. The gradation list prepared by
the selection committee was to be submitted to the
Government.
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The petitioners, who unsuccessfully sought admission to the
medical colleges in the State, challenged the validity of
the selections made. They contended that : (1) The unitwise
selection contravened Arts. 14 and 15 of the Constitution
because, (a) the applicants of ’some of the units were in a
better position than those who applied to other units, since
the ratio between the applicants and the number of seats in
each unit varied, and several applicants who secured lesser
marks than the petitioners were selected merely because
their applications came to be considered in ,other units,
and (b) the scheme was merely intended as a device to get
over the decision of this Court in Rajendran v. State of
Madras, [1968] 2 S.C.R. 786; (2) the interview was a farce
because it Was held for only three minutes and no guidelines
we’re provided for the award of marks at the interview and
earmarking for interview marks 75 out of the total of 275
was excessive; (3) the interview marks were manipulated both
by the selection committee and the Government in order to
pull up undeserving :applicants; (4) the list of backward
classes was solely made on the basis
431
of caste and therefore did not conform to Art. 15(4) of the
Constitution; (5) the reservation made for backward classes
was disproportionately high; and (6) the division of
backward classes into backward classes and more backward
classes was impermissible under law.
HELD : (1) (a) The object intended to be achieved in the
present case, is to select the best candidates for being
admitted to medical colleges. This object cannot be
satisfactorily achieved by the method adopted. It is
admitted that the minimum marks required for being selected
in some units is less than in other units. Hence prima
facie the scheme in question results in discrimination. The
plea of delay in selection on State-wise basis is neither
real nor substantial. [436 F-G; 437 C-D]
(b)The unitwise distribution of seats appears to be a
different manifestation of the district-wise distribution
which was struck down by this Court in Rajendran’s case,.
[437 D-E]
(2)In the course of three minutes interview, it is hardly
possible to the capability of a candidate since,the first
impression need not necessarily be the best impression. But
it cannot be held that the system of interview is so
defective as to make it useless, or that the Government has
no power to provide such high marks for interview or that there
was an arbitrary exercise of the power. [437 G-H; 438
H; 439 A]
It is true that the rule did not prescribe separate marks
for the separate heads, but it must be presumed that the
Government considered that each of the heads mentioned as
being of equal importance and that the intention was that
each of those heads ’should carry 115 of the interview
marks. [440 B-G]
Since the marks list, as prepared in the present case, shows
that the marks were given in a lump it was clearly illegal.
[440 F-G]
Chitralekha v. State of Mysore [1964] 6 S.C.R. 368,
followed.
Viswasnath v. Chief Secretary, Mysore, A.I.R., 1964 Mys.
132, approved.
The tests relating to the various matters for allotting
interview marks. are objective tests. The aptitude referred
to in the rule is aptitude for the medical profession; but
in this case certain irrelevant matters were taken into
consideration and relevant matters were omitted.
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[439 H; 440 A, 441 A-B, C-D]
(3)There is no material for concluding that there was any
manipulation of marks. Numerous students whose performance
in the university examination was none too satisfactory nor
their past records creditable have secured very high marks
at the interview, and a large number of students whose
performance in the University examination was very good,
secured very low marks at the interview. This circumstance
is undoubtedly disturbing but the courts cannot uphold the
plea of mala fides on the basis of mere probabilities [439
C-F]
(4)The list of backward classes appears to include castes
and not classes. But caste is a relevant circumstance in
ascertaining backwardness of a class and a classification of
backward classes on the basis of caste is within the purview
of Art. 15(4) of the Constitution, if those castes are shown
to be socially and educationally backward. But the
Government could not proceed on the basis once a class is
considered as a backward class it should continue to be a
backward class for all time, because, once a class reaches a
certain stage of progress competi-
432
tion is necessary for its future progress. The Government
should, therefore, always keep under review the question of
’reservation of seats and only those classes which are
really socially and educationally backward should be allowed
to have the benefit of reservation. Reservation of seats
should not be allowed to become a vested interest, and the
fact that, in the present case, the candidate of backward
classes had secured 50 per cent of the seats in the general
pool does show that the time has come for a de novo
comprehensive examination of the question. The Government’s
decision in this regard is open to judicial review. [442 B-
C, 444 E-H]
Balaji v. State of Mysore, [1963] Supp. 1 S.C.R. 438,
Chitralekha v. State of Mysore [1964] 6 S.C.R. 368, State of
Andhra Pradesh v. Sagar, [1963] 3 S.C.R. 595, Minor P.
Rajendran v. State of Madras, [1968] 2 S.C.R. 786, Narayan
Vasudev v. Emperor, A.I.R. 1940 Bom. 379 and Backward
Classes Commission’s Report, referred to.
(5)There is no basis for, the contention that reservation
made for backward classes is excessive. While it is against
the immediate interest of the Nation to exclude from the
portals of our medical colleges qualified and competent
students, immediate advantages of the Nation have to be
harmonised with the Nation’s long range interest. The best
way of serving the Nation’s interest would to help the
backward classes to march forward and take their place in
line with the advanced sections of the people. In Balaji’s
case it was held that the total, reservation for backward
classes, scheduled castes and scheduled tribes should not
ordinarily exceed 50 per cent of the available seats. Since
in the present case it was only 41 per cent, it could not be
held that the reservation was excessive. [441 E-H; 442 A-B]
(6)For the purpose of selection there is no classification
of backward classes as backward and more backward. The list
sent to the selection committee was that prepared for the
purpose of fee concession. [441 F]
In the present case, however, the impugned selections
already made could not be set aside because the selected
candidates had already joined the course and are undergoing
training and they had not been made parties to the
petitions. Since there are 24 seats yet to be filled up,
the State shall immediately constitute a separate expert
committee consisting of eminent medical practitioners
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(excluding all those who were members of previous
committees) for selection to these unfilled seats. The
selection should be made on State-wise basis. The committee
should interview only those candidates who are shown in the
waiting list and persons who unsuccessfully moved the High
Court and the petitioners before this Court. in preparing
the gradation list, the committee should allot separate
marks under the five heads mentioned in the rule and the
committee should take into consideration only matters laid
down in the rule excluding from consideration all irrelevant
matters. [445 B-H]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 285 and 314 of
1970.
Under Article 32 of the Constitution of India for
enforcement of the Fundamental Rights.
K.K. Venugopal, and R. Gopalakrishnan, for the petitioner
(in W.P. No. 285 of 1970).
433
M.Natesan, R. Gopalakrishnan, for the petitioner (in W.P.
No. 314 of 1970).
S.Govind Swaminathan, Advocate-General for the State of
Tamil Nadu, A. V. Rangam and S. Mohan, for respondents Nos.
1 to 5 (in W.P. No. 285 of 1970) and the respondents (in
W.P. No. 314 of 1970).
M. K. Ramamurthi and Vineet Kumar, for the interveners.
The Judgment of the Court was delivered by
Hegde, J. In these two petitions under Art. 32 of the Con-
stitution the petitioners who unsuccessfully sought
admission to certain Medical Colleges in the State of Tamil
Nadu have asked for a writ of mandamus to direct the State
of Tamil Nadu to allot to each, one of them a seat in one of
the Government Medical Colleges in that State and for
consequential orders.
In the State of Tamil Nadu, there are eight Medical Colleges
out of which three are situate in the city of Madras, one in
Madurai, one in Chingleput, one in Coimbatore, one in
Thanjavur and one in Tirunelveli. The total seats available
in Madras Colleges are 500. The sanctioned strength of
seats in Madurai, Chingleput, Coimbatore, Thanjavur and
Tirunelveli are 200, 50, 100, 200 and 75 respectively. Thus
the total number of medical seats available in the
Government Colleges for 1st year of M.B.B.S., course in the
State of Tamil Nadu are 1125. We understand that for these
seats nearly 7,000 students applied for admission.
In the previous years except in the year 1967-68, selection
of candidates for admission to the 1st year M.B.B.S. course
was done on State-wise basis. In the year 1967-68, the
seats were distributed on district-wise basis but that
scheme was held to be invalid by this Court in Minor P.
Rajendran v. State of Madras and Ors.(1) Thereafter the
selection was again made on State-wise basis in the years
1968-69 and 1969-70 but in the current year that system was
given up and selection was directed to be made on the basis
of what is known as unitwise basis. Under the present
scheme the Medical Colleges in the city of Madras were
constituted as one unit and each one of the other Medical
Colleges in the mofussil was constituted as a unit. Thus
six units were created in the State. In respect of each one
of the units a separate selection committee was constituted.
The intending applicants were asked to apply to any one of
the committees but they were advised to apply to the
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committee nearest to their place of residence as far as
possible.. They were told that if they applied to more than
one committee their applications will be forwarded by the
Government to only one of the committees.
(1)[1968] 2 S. C. R. 786.
434
A few seats out of the 1125 seats were reserved for certain
special categories of students. As there is no dispute
about those seats we shall not refer to them hereafter. Out
of the remaining seats 41 per cent seats were reserved for
students coming from socially and educationally backward
classes Scheduled Castes & Scheduled Tribes. The rest of
them were placed in the general pool.
In the State of Tamil Nadu actual marks are not being given
in the Pre-University examination. The papers were valued
on the basis of grades. There are all together four grades
i.e. Grades A to D. For the purpose of selection to first
year M.B.B.S., course only marks obtained in the optional
subjects were taken into consideration. Selection to the
seats with which we are concerned in these petitions is
confined to students who have taken in their Pre-University
examination Physics, Chemistry and Biology as their optional
subjects though each of these subjects carried a maximum of
100 marks thus a total of 300 marks, for the purpose of
selection to the first year M.B.B.S. course the procedure
prescribed was to take the minimum marks provided for the
grade secured by the applicant in Chemistry and. Physics
and add them together and thereafter divide the ’total by
two and to that add the minimum marks provided for the grade
secured by the applicant in Biology. Thus the total marks
in the optional subjects was reduced from 300 to 200. All
the applicants in the general pool who secured 1 10 or more
marks calculated on the basis of the formulae referred to
earlier were called for interview by the selection
committees. Selection committees were authorised to give a
maximum of 75 marks at the interview. The selection
committees were asked to award these marks on the basis of
following tests.
(1) Sports or National Cadet Corps activities;
(2) Extra Curricular special services;
(3) General physical condition and endurance-,
(4) General ability, and
(5) Aptitude.
The selection committees were directed to prepare a
gradation list on the basis of the total marks obtained by
each applicant and submit the same to the Government.
The petitioners before us appear to have had brilliant
academic career. The facts mentioned by the petitioners in
this regard were not controverted by the respondents. The
petitioner in Petition No. 285 of 1970 came out within first
three ranks in the 10th and 11 th standards and in the final
examination he secured 451 marks out of the total, of 700.
He Stood third in his school.
43 5
Du ring his school career he had taken keen interest in
extracurricular activities. He was a N.C.C. Cadet and
passed creditably the ’A’ certificate examination. He had
also obtained certificate in boxing. He had joined the
correspondence course conducted by the Voice Prophecy
Institute, New Delhi and obtained a certificate in Health
and Hygiene. After having passed his Anglo Indian High
School examination creditably he joined Madurai college, in
the Pre-University course taking Physics, Chemistry and
Biology as his science subjects. In that course he secured
first class with Grade D plus in Physics and Chemistry and A
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plus in Biology. He stood fourth in his college. The grade
D plus represents 85 to 99 per cent marks and A plus 65 to
75 per cent marks.
The petitioner in Petition No. 314 of 1970 passed her Pre-
University examination in March, 1970 from the Scott
Christian College, Nagercoil which college stands affiliated
to Madurai University. She secured first class with grade
’D’ (75 to 85 per cent marks) in Physics; grade D plus (85
to 99 per cent) in Chemistry and D (75 to 85) per cent in
Biology. The petitioner also had a brilliant career
throughout in, the High School classes as well as in the
college class. She secured a merit card for the highest
distinction consecutively for the years 1965-66, 1966-67 and
1967-68 in Standards 8 to 10 of St. Joseph’s Convent, Nager-
coil. In the S.S.L.C. examination held in March, 1969 she
secured 456 marks out of 600. She obtained distinction in
extracurricular activities both in school and college. She
had been a girl guide. She took keen interest in games and
sports particularly in net-ball, throw ball and tenniquoit.
She was a member of the Representative team. She also
passed with merit the pianoforte playing Grade 1 examination
conducted by the Trinity College of Music, London.
The petitioners before this Court challenged the validity of
the selections made on various grounds. They contended that
the unitwise selection contravenes Arts. 14 and 15 of the
Constitution inasmuch as the same places the applicants of
some of the units in a better position than those who
applied to other units. It was alleged that the ratio
between applicants and number of seats in the Coimbatore
unit was 1 : 13; in Tirunelveli 1 : 10; in Chingleput 1 : 6;
in the Madras 1 : 5 1/2 ; in Thanjavur 1 : 6 and in Madurai
1 : 71. It was further alleged that several applicants who
secured lesser marks than the petitioners before this Court
were selected merely because their applications came to be
considered in other units. It was also alleged that this
unitwise scheme was merely intended as a device to get over
the decision of this Court in Rajendran’s case(). It was
next contended on behalf of the petitioners that the
interview held was a farce.
(1)[1968] 2 S. C. R. 786.
436
Each applicant was interviewed hardly for three minutes.
During that interview irrelevant questions were put to them.
The interview marks were manipulated so as to pull up
under serving applicants and downgrade those who had secured
excellent marks in their Pre-University examination. It was
said that a perusal of the marks list would show that the
whole selection was a manipulation. The applicants who had
failed more than once and ultimately secured bare second
class were selected while the first rate applicants who had
secured first class with high marks were rejected. It was
urged on their behalf that even the students who get the
minimum marks could be pulled up by the selection committee
by plumping 70 or more out of 75 interview marks whereas the
students who have secured 170 marks the highest marks that
could have been secured under the admission rules in Pre-
University examination could be pulled down by giving less
than 10 marks out of 75 marks. The petitioners’ complaint
is that after the interview the selection committee carried
the marks given by them to Madras and there the Government
has manipulated the marks in such a way as to ’select their
favourites and reject such of them in whom the Government
was not interested.
It was also urged that no guidelines.were provided for
awarding marks at the interview and therefore the power
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conferred on the selection committee is an arbitrary power
which is capable of being misused and in fact has been
misused. It was contended that the list of backward classes
provided to the committee was solely made on the basis of
caste and as such that list did not conform to the
requirements of Art. 15(4) of the Constitution. The
petitioners also urged that the reservation made for
backward classes is disproportionately high and further the
division of backward classes into backward classes and more
backward classes was impermissible under law.
We shall first take up the plea regarding the division of
medical seats on unitwise basis. It is admitted that the
minimum marks required for being selected in some unit is
less than in the other units. Hence prima facie the scheme
in question results in discrimination against some of the
applicants. In Rajendran’s case(1) this Court ruled that
the district-wise distribution of available seats is
violative of Art. 15 of the Constitution’. But it was
Contended on behalf of the State that the unitwise
distribution of seats was adopted for administrative
convenience. It was said that it was not possible for one
selection committee to interview all the applicants.
Therefore several committees had to be constituted. In the
past when applicants were interviewed by several committees
there were complaints that the standard adopted by one
committee differed from that adopted by others and therefore
the applicants’ ability was not tested by a uniform
standard. Further
(1) [1968] 2 S. C. R. 786.
43 7
it was said that when selections were made by several
committees there was delay in preparing a consolidated list.
We are unable to accept these grounds as being real grounds
for classification. The grievance when selections were made
by several committees in a State-wise selection the standard
adopted by various committees differed, would continue even
when selections are made by several committees in a unitwise
selection. Whether the selection is made by selection
committees on State-wise basis or unitwise basis, the
standard adopted by various committees is bound to vary.
Hence in principle it makes no difference.
Now coming to the question of delay, we see no reason why
there should be any delay in preparing a consolidated list.
At any rate the delay caused is not likely to be such as to
justify departure from the principle of selection on the
basis of merit on a Statewise basis. Before a clasification
can be justified, it must be based on an objective criteria
and further it must have reasonable nexus with the object
intended to be achieved. The object intended to be achieved
in the present case is to select the best candidates for
being admitted to Medical Colleges. That object cannot be
satisfactorily achieved by the method adopted. The
complaint of the petitioners is that unitwise distribution
of seats is but a different manifestation of the
districtwise distribution sought in 1967-68 has some force
though on the material on record we will not be justified in
saying that the unitwise distribution was done for
collateral purposes. Suffice it to say that the unitwise
distribution of seats is violative of Arts. 14 and 15 of the
Constitution. The fact that an applicant is free to apply
to any one unit does not take the scheme outside the
mischief of Arts. 14 and 15. It may be remembered that the
students were advised as far as possible to apply to the
unit nearest to their place of residence.
Earmarking 75 marks out of 275 marks for interview as inter-
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view marks prima facie appears to be excessive. It is not
denied that the interview lasted hardly, for three minutes
for each candidate. In the course of three minutes
interview it is hardly possible to assess the capability of
a candidate. In most cases the first impression need not
necessarily be the best impression. But under the existing
conditions in this country we are unable to accede to the
contention of the petitioners that the system of interview,
as in vogue in this country is so defective as to make it
useless. It is true that various researches conducted in
other countries particularly in U.S.A. show that there is
possibility of serious errors creeping in interviews made on
haphazard basis. C. W. Valentine on "Psychology and its
Bearing on Education"’ refers to the marks given to the same
set of persons interviewed
438
by two different competent Boards and this is what is stated
in his book :
"The members of each board awarded a mark to
each candidate and then he was discussed and
an average mark agreed on.
When the orders of merit for the two boards
were compared it was found that the man placed
first by Board A was put 13th by Board B when
the main placed 1st by Board B was 11th with
Board A."
Even when the, interviews are conducted by impartial and
competent persons on scientific lines very many uncertain
factors like the initial nervousness on the part of some
candidates, the mood in which the interviewer happens to be
and the odd questions that may be put to the persons
interviewed may all go to ,affect the result of the
interview. But as observed by this Court in R. Chitralekha
and Anr. v. State of Mysore and Ors(1).
"In the field of education there are divergent
views as regards the mode of testing the
capacity and calibre of students in the matter
of admissions to colleges. Orthodox
educationists stand by the marks obtained by a
student in the annual examination. The modem
trend of opinion insists upon other additional
tests, such as interview, performance in
extracurricular activities, personality test,
psychiatric tests etc. Obviously we are not
in a position to judge which method is pre-
ferable or which test is the correct one. If
there can be manipulation or dishonesty in
allotting marks at interviews, there can
equally be manipulation in the matter of
awarding marks in the written examination. In
the ultimate analysis, whatever method is
adopted its success depends on th
e moral
standards of the members constituting the
selection committee and their sense of
objectivity and devotion to duty. This criti-
cism is more a reflection on the examiners
than on the system itself. The scheme, of
selection, however, perfect it may be, on
paper, may be abused in practice. ’Mat it is
capable of abused is not a ground for quashing
it. So long as the order lays down relevant
objective criteria and entrusts the- business
of selection to qualified persons, this Court
cannot obviously have any say in the matter."
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While we do feel that the marks allotted for interview’ are
on the high side and it may be appropriate for the
Government to
(1) [1964] 6 S.C.R. 368.
439
re-examine the question, we are unable to uphold the
contention that it was not within the power of the
Government to provide such high marks for interview or that
there was any arbitrary exercise of power. It was urged on
behalf of the petitioners that the interview marks were,
allotted on collateral considerations. We are told that the
selection committees were tools in the hands of the
Government and the Government manipulated the marks in such
a way as to facilitate the selection of those students in
whom the members of the party in power were interested.
These allegations were denied by the respondents. While,
elaborating their arguments on their plea of mala fides the
learned Counsel for the petitioners invited our attention to
the marks lists which according to them clearly showed that
the marks given at the interview are-by and large-in inverse
proportion to the marks obtained by the candidates at the
University examination. We were also told that the marks
lists on their face show that the interview marks were
manipulated. It was said that marks were so given as to see
that certain candidates got at least the minimum required
for selection. While there is some basis for these
criticisms there is not sufficient material before us from
which we could conclude that there was any manipulation in
preparing the gradation list. It is true that numerous
students whose performance in the University examination was
none too satisfactory nor their past records creditable had
secured very high marks at the interview. It is also true
that a large number of students who had secured very high
marks in the University examination and whose performance in
the earlier classes was very good had secured very low marks
at the interview. This circumstance is undoubtedly
disturbing but the courts cannot uphold the plea of mala
fides on the basis of mere probabilities. We cannot believe
that any responsible Government would stoop to manipulating
marks. The selection committees consisted of eminent
persons. Most of them are medical practitioners occupying
responsible positions’ in life. It would be a bad day for
this country if such persons take to manipulation of marks.
Hence we cannot accept the contention that the interview
marks were manipulated either by the Government or by the
selection committees.
It was next urged that no objective criterion was fixed for
interview. We are unable to accept this contention as well.
I The selectors were asked to interview candidates on the
basis of the five criteria prescribed to which we have made
reference earlier. Those tests are sufficiently objective
in character. Similar tests were held to be objective by
this Court in Chitralekha’s case(1). It cannot be denied
that extra curricular activities like sports, N.C.C.,
special services, general physical condition and endurance
and general ability are objective tests. The aptitude
(1) (1964)6 S.C.R 368.
440
referred to in the rule, in our opinion, is aptitude for
medical profession.
It was next contended that separate marks had not been
allotted for each one of the tests enumerated in the rule.
A total of 75 interview marks were placed at the disposal of
the selection committee and from out of those the committee
could award marks according to its sweet will and pleasure.
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Such a power it was said is an arbitrary power. We were
told that the entire 75 marks could have been given to a
candidate even if he satisfied only one out of the five
criterion prescribed. It is true that the rule did not
prescribe separate marks for separate heads. But that in
our opinion did not permit the selection committee to allot
marks as it pleased. Each one of the tests prescribed had
its own importance. As observed at footnote 20 at p. 485 of
American Jurisprudence Vol. 15 that the interviewers need
not record precise questions and answers when oral tests are
used to appraise personality traits; it is sufficient if the
examiner’s findings are recorded on the appraisal sheet
according to the personal qualifications itemised for
measure. A contention similar to those advanced by the
petitioners came up for consideration before the Mysore High
Court in D. G. Viswanath v. Chief Secretary of Mysore and
Ors. Therein the court observed thus :
"It is true that Annexure IV does not
specifically mention the marks allotted for
each head. But from that circumstance it
cannot be held that the Government had
conferred an unguided power on the Committees.
In the absence of specific allocation of marks
for each head, it must be presumed that the
Government considered that each of the heads
mentioned in Annexure IV as being equal in
importance to any other. In other words, we
have to infer that the intention of the
Government was that each one of those heads
should carry 1/5th of the "Interview" marks."
We may note that the committee had not divided the interview
marks under various heads nor were the marks given on
itemised basis. The marks list produced before us shows
that the marks were given in a lump. This is clearly
illegal.
The interview held was also vitiated for the reason that the
selection committee took into consideration irrelevant
matters and at the same time failed to take into
consideration matters required to ’be taken into
consideration. In the counter-affidavit filed by the
Chairman of the selection committee it was averred that in
allotting interview marks the committee took into
consideration
A.I.R. 1964 Mys.132.
441
qualities such as pleasant personality, quick thinking etc.
One of the extra-curricular activities that the committee
was required to take into% consideration was N.C.C.
training. That was clearly an objective test but from the
counter-affidavit filed, it appears that the committee did
not think that it was sufficient if an applicant had good
record as a cadet, but according to it, he must also know
why he joined the N.C.C. and what role N.C.C. plays in the
National life. These, in our opinion, are irrelevant
considerations. Again the test like the physical condition
and endurance can be best judged by a competent medical
practitioner after a careful medical examination. It was in
the very nature of things not possible for the selection
committee though composed of eminent doctors to find out the
physical condition and endurance by a mere look at the
candidate. It is clear from the affidavit filed on behalf
of the selection committees that at the time of interview
much attention had not been given to the general ability
which test include past performance of the applicants and
the varied interest taken by them.
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From the facts placed before us it is clear that the
candidates were not interviewed in accordance with the rules
governing the interview.
It was next urged that the classification of backward
classes by the Government into backward classes and more
backward classes was illegal and in support of that
contention our attention was invited to the decision of this
Court in M. R. Balaji and Ors. v. State of Mysore(). It is
unnecessary to go into that question because for the purpose
of the present selection the backward classes were not sub-
divided into backward classes and more backward classes.
What had happened is that the list of backward classes
supplied to the selection committee showed that some of the
communities are more backward than others but that list was
prepared for the purpose of fee concession. For the purpose
of the present selection all the classes shown therein were
treated as backward classes.
There is no basis for the contention that the reservation
made for backward classes is excessive. We were dot told
why it is, excessive. Undoubtedly we should not forget that
it is against the immediate interest of the Nation to
exclude from the portals of our medical colleges qualified
and competent students but then the immediate advantages of
the Nation have to be harmonised with, its long range
interests. It cannot be denied that unaided many sections
of the people in this country cannot compete with the
advanced sections of the Nation. Advantages secured due to,
historical reasons should not be considered as fundamental
rights. Nation’s interest will be best served-taking a long
range view-if the backward classes are helped to march
forward and take their-
(1)(1963) Supp. 1 S. C. R. 438.
442
place in line with the advanced sections of the people.
That is ,why in Balaji’s case (1) this Court held that the
total of reservations for backward classes, scheduled castes
and scheduled tribes should not ordinarily exceed 50% of the avail
able seats. In the present case it is 41 %. On the
material before us we are unable to hold that the said
reservation is excessive.
Considerable arguments were advanced assailing the enumera-
tion of backward classes. It was said that the concerned
list included only castes and not classes. The petitioners’
case is that every one of the classes mentioned therein is
in reality a. caste. Hence that list cannot be sustained.
In Balaji’s case(1) this Court held that though caste is a
relevant factor in ascertaining a ,class for the purpose of
Art. 15(4), a class cannot be constituted solely on the
basis of caste. Gajendragadkar J. (as he then was) speaking
for the Court observed :
"That though castes in relation to Hindus may
be a relevant factor to consider in
determining the social ,backwardness of groups
or classes of citizens it cannot be made the
sole or the dominant test in that behalf.
’Social backwardness is on the ultimate
analysis the result of poverty, to a very
large extent. The classes of citizens who
are deplorably poor automatically become
socially backward. They do not enjoy a status
in society I and have, therefore to be content
to take a backward seat. It is true that
social backwardness which results from poverty
is likely to be aggravated by considerations
of caste to which the poor citizens may
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belong, but that only shows the relevance of
both caste and poverty in determining the
backwardness of citizens."
In Chiterlekha’s case(2), this Court reiterated that the
caste is a relevant circumstance in ascertaining the
backwardness of a class. Further it was observed therein :
"While this Court has not excluded caste from
ascertaining the backwardness of ’a class of
citizens, it has not made it one of the
compelling circumstances affording a basis for
the ascertainment of backwardness of a class.
To put it differently the authority concerned
may take caste into consideration in
ascertaining the backwardness of a group of
persons; but, if it does not, its order will
not be had on that account, if it can ascer-
tain the backwardness of a group of persons on
the basis of other relevant criteria."
The same view was, expressed by this court in State of
Andhra Pradesh and anr. v. P. Sagar(3). There in it was
observed
(1) (1963) Supp. 1 S. C. R. 438.
(2) (1964) 6 S. C. R. 368.
(3) (1968) 3 S. C. R. 595.
443-
"In the context in which it occurs the
expression ’class’ means a homogeneous section of
the people grouped together because of
certain likenesses or common traits and who
are identifiable by some common attributes
such as status, rank, occupation, residence in
a locality, race, religion and the like. In
determining whether a particular section forms
a class, caste cannot be excluded altogether.
But in the determination of a class a test
solely based upon the caste or community
cannot also be accepted."
A caste has always been recognised as a class. In
construing the expression "classes of His Majesty’s
subjects" found in s. 153-A of the Indian Penal Code)
Wassoodew J. observed in Narayan Vasudev v. Emperor(1).
"In my opinion, the expression ’classes of
His-Majesty’s subjects’ in Section 153-A of
the Code is used in restrictive sense as
denoting a collection of individuals or groups
bearing a common and exclusive designation and
also possessing common and exclusive
characteristics which may be associated with
their original race or religion, and that the
term ’class’ within that section carries with
it the idea of numerical strength so large as
could be grouped in a single homogeneous
community.,,
In Paragraph 10, Chapter V of the Backward
Classes Commission’s Report, it is observed :
"We tried to avoid caste but we find it
difficult to ignore caste in the present
prevailing conditions. We wish it were easy
to dissociate caste from social backwardness
at the present juncture. In modem times any-
body can take to any profession. The Brahman
taking to tailoring, does not become a tailor
by caste, (nor is his social status lowered as
a Brahman. A Brahman may be a seller of boots
and shoes, and yet his social status is not
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lowered thereby. Social backwardness,
therefore, is not today due to the ’particular
profession of a person, but we cannot escape
caste in considering the social backwardness
in India."
In Paragraph II of that Report it is stated:
"It is not wrong to assume that social
backwardness has largely contributed to the
educational backwardness of a large number of
social groups."
Finally in Paragraph 13, the committee
concludes with following observations :
"All this goes to Prove that social
backwardness is mainly based on racial,
tribal, caste and denominational differences."
(1) A. I. R.1940 Bom. 3 9.
444
The validity of the impugned list of backward classes came
up for consideration before this Court in Rajendran’s
case(1) and this is what this Court observed therein
"The contention is that the list of socially
and educationally backward classes for whom
reservation is made under r. 5 is nothing but
a list of certain castes. There.fore,
reservation in favour of certain castes based
only on caste considerations violates Art. 1 5
( 1 ), which prohibits discrimination on the
ground of caste only. Now if the reservation
in question had been based only on caste and
had not taken into account the social and
educational backwardness of the caste in
question, it would be violative of Art. 15(1).
But it must not be forgotten that a caste is
also a class of citizens and if the caste as a
whole is socially and educationally backward,
reservation can be made in favour of such a
caste on the ground that it is, a socially and
educationally backward class of citizens
within the meaning of Art. 15 (4) "
Rajendran’s case(1) is an authority for the proposition that
the classification of backward classes on the basis of
castes is within the purview of Art. 15(4) if those castes
are shown to be socially and educationally backward. No
further material has been placed before us to show that the
reservation for backward classes with which we are herein
concerned is not in accordance with Art. 15(4). There is no
gain saying the fact the there are numerous castes in this
country which are socially and educationally backward.’ To
ignore their existence is to ignore the facts of life.
Hence we are unable to uphold the contention that impugned
reservation is not in accordance with Art. 15 (4). But all
the same the Government should not proceed on the basis that
once a class is considered as a backward class it should
continue to be back-ward class for all times. Such an
approach would defeat the very purpose of the reservation
because once a class reaches a stage of progress which some
modem writers call as take off stage then ,competition is
necessary for their future progress. The Government should
always keep under review the question of reservation ,of
seats and only the classes which are really socially and
educationally backward should be allowed to have the benefit
of reservation. Reservation of seats should not be allowed
to become a vested interest. The fact that candidate,, of
backward classes have secured about 50% of the seats in the
general pool does show that the time has come for a de novo
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comprehensive examination of the question. It must be
remembered that the Government’s decision in this regard is
open to judicial review.
(1) (1968) 2 S. C. R. 786.
445
For the reasons mentioned above we are of opinion that the
selections impugned in these petitions cannot be held to
have been made validly inasmuch as the seats were
distributed on unitwise basis and further that the
interviews were not held in accordance with the rules. But
despite coming to that conclusion we are unable to set
’aside the selections already made. The selected candidates
have not been made parties to these petitions. They have
already joined the course and are undergoing training.
Their selection cannot be set aside without giving them an
opportunity to put forward their case. It is true that the
petitioners had filed applications to premit them to have
recourse to O. 1, r. 8. C.P.C. for the representation of the
persons interested in opposing these applications but no
order has been passed on those applications and it is now
too late to have recourse to that procedure even if that
procedure is, permissible under law. We are told by the
learned Advocate General of Tamil Nadu that 24 seats still
remain to be filled up. He has assured us on behalf of the
State that those seats will be filled up in accordance with
the orders of this Court. There are about 80 persons, who
we are told are in the waiting list. Some of the
unsuccessful applicants had moved the High Court of Madras
for relief similar to that sought by the petitioners herein.
But it appears their writ petitions have been dismissed.
Some out of them have intervened in these petitions. Other
non-selected candidates have evinced no interest in chal-
lenging the selections made. Under the circumstances, it is
reasonable to assume that they have abandoned their claim
and it is too late for them to press their claim. Under
these circumstances, after discussion with the Counsel for
the parties we have come to the conclusion that these
petitions should be allowed subject to the following
conditions :
The State of Tamil Nadu shall immediately constitute a sepa-
rate expert committee consisting of eminent medical
practitioners (excluding all those who were members of the
previous committees) for selection to the 24 unfilled seats.
The selection shall be made on Statewise basis. The
committee shall interview only the candidates who are show
in the waiting list, the persons who unsuccessfully moved
the High Court of Madras and the two petitioners before this
Court. They shall allot separate marks under the five heads
mentioned in the rule. The committee shall take into
consideration only matters laid down in the rule, exclude
from consideration all irrelevant matters and thereafter
prepare a gradation list to fill up the 24 seats mentioned
earlier. It is ordered accordingly. We think this is a fit
case where the petitioners should get their costs from the
State of Tamil Nadu.
V.P.S. Petition allowed and directions given..
446