Full Judgment Text
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CASE NO.:
Appeal (civil) 4852-53 of 2000
PETITIONER:
N.T.R. University of Health, Sciences, Vijaywada
RESPONDENT:
G. Babu Rajendra Prasad & Anr.
DATE OF JUDGMENT: 10/03/2003
BENCH:
CJI, S.B. Sinha & AR Lakshmanan.
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Whether the Government of Andhra Pradesh while framing A.P.
Educational Institutions (Regulation of Admissions) Order, 1974 made in
terms of Article 371-D of the Constitution of India was bound to provide
reservation for 15% of non-local seats, although reservations in terms of its
policy decision had been taken in respect of seats available for local
candidates, is the question involved in these appeals which arise out of a
judgment and order dated 29.03.200 of the Full Bench of the Andhra
Pradesh High Court.
The First Respondent herein is said to be a member of Scheduled
Caste. He questioned the validity of policy decision of the State of Andhra
Pradesh as regards non-reservation for Scheduled Castes, Scheduled Tribes
and Backward Classes by filing a writ petition in the High Court
A learned Single Judge of the Andhra Pradesh High Court by a
judgment and order dated 27.10.1998 directed the appellant herein to reserve
seats for the reserved category for 15% open seats also. A review
application filed by the appellant herein before the learned Single Judge was
dismissed. Thereafter, the appellant preferred a letters patent appeal before
the Division Bench questioning the said order of the learned Single Judge.
The Division Bench, however, noticing conflict in some decisions on the
question referred the matter to a Full Bench on the following question :
"Whether the reservations in terms of Article 15(4)
of the Constitution of India in favour of Scheduled
Castes, Scheduled Tribes and Backward Classes
could be provided even in respect of 15% of the
unreserved seats under the Presidential Order,
1974."
By reason of the impugned judgment the said appeals were dismissed.
The appellant is, thus, in appeal before us.
By reason of the Constitution 32nd Amendment Act, a special
provision by way of Article 371-D of the Constitution of India was inserted
in respect of the State of Andhra Pradesh relating to both employment and
education; pursuant to or in furtherance whereof the President was
empowered to make orders in relation thereto contained in different
provisions for different parts of the State. Pursuant to or in furtherance of
the said power, A.P. Educational Institution (Regulation of Admissions)
Order, 1974 (hereinafter referred to as the Presidential Order) was made.
The relevant provisions of the Presidential Order are as under :-
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(A) Para-2 "available seats" in relation to any
courses of study as number of seats provided in
that course for admission at any time after
excluding those reserved for candidates from
outside the State. It defines "local area" in respect
of any University or other educational institution
as the local area specified in para-3 of the order for
the purpose of admission to such University or
other educational institution.
(B) Para-3 carves out the local areas by reference
to the earliest Universities operating in Andhra,
Telengana and Rayalaseema areas of the State,
Andhra University, Osmania University and Sri
Venkateswara University and delineates the
district comprised in such local area.
(C) Para-4 sets out the qualifications for
determining local candidates with reference to
study in an educational institution or institutions
for specified period or in the alternative with
reference to residence in the local area.
(D) Para-5 enjoins that admission to 85% of the
available seats in every course of study provided
by Andhra, Nagarjuna, Osmania, Kakatiya or Sri
Venkateswara Universities or by educational
institution other than a State wide University or
State-wide educational institution which is subject
to control of the State Government, shall be
reserved in favour of the local candidates in
relation to the local area in respect of such
University or other educational institution. Sub-
para (2) of this para states while determining
number of seats to be reserved in favour of the
local candidates under sub para (1) any fraction of
seats shall be counted as one. The proviso to the
para ordains that there should be at least one
unreserved seat.
(E) Para-8 enables the President by order to
require the State to issue such directions as may be
necessary or expedient effectuating the provisions
of the order to any University or other educational
institution which shall comply with such
directions.
(F) Para-9 reiterates the overriding effect set out
in clause (10) of the parent Article and mandates
that the provisions of the order shall have the
effect notwithstanding anything contained in any
statute, ordinance, rules, regulations, or other
orders whether made before or after the
commencement of the Presidential Order
irrespective of the admissions
.
(G) Para-10 provides that nothing in the order
shall affect the operation of any provisions made
by the State Government or other competent
authority whether before or after the
commencement of the order in respect of
reservations in the matter of admissions to any
University or the educational institution in favour
of women, socially and educationally backward
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class of citizens, the Schedule Castes and
Scheduled Tribes, in so far as such provisions are
not inconsistent with the order.
With a view to prescribe the procedure adopted for admissions, the
Government of Andhra Pradesh issued G.O.Ms. No.646 dated 10.7.1979
whereby and whereunder it was directed that the procedure framed in
Annexure-III thereto would be followed in the matter of implementation of
reservations in favour of local candidates provided under the Presidential
Order in respect of non-Statewide Universities and non-Statewide
educational institutions subject to its control; the relevant provisions whereof
are as under :-
"1. The number of "available seats" in the course
of study shall first be computed by deducting from
the total number of sets provided in that course,
and the number of seats reserved for candidates
from outside the State.
2. The number of seats reserved in favour of local
candidates in relation to local area in respect of the
University or other educational institution
concerned shall then be determined; this number
shall be 85% of the available seats, any fraction of
a seat being counted as one provided that there
shall be at least one unreserved seat;
3. From amongst all eligible applicants,
whether such applicants are local candidates or
not, a provisional list of admission to fill the
available seats shall be drawn up. This
provisional list shall be prepared on the basis of
the relative merit of all eligible applicants and the
reservations in favour of Scheduled Castes,
Scheduled Tribes and Backward Classes, women
etc., as provided under the relevant rules of
admission. The candidates included in the
provisional admission list shall be arranged in
order of merit or where the rules of admission
provide for their arrangement in any other order,
in the order so provided;"
Mr. G. Prabhakar, learned counsel appearing on behalf of the
appellant has raised a short question in support of this appeal. The learned
counsel would submit that the High Court committed a manifest error in
issuing the impugned direction insofar as it failed to take into consideration
that having regard to the fact that the appellant has already made
reservations to the extent of 15%, 6% and 25% for Scheduled Castes,
Scheduled Tribes and Backward Classes respectively covering 85% of the
seats, no further reservation could be made in respect of balance 15% of the
seats as by reason thereof the seats reserved for the reserved category
candidates would exceed 50%. It has been pointed out that out of 17 seats
for admission in the post graduate courses 8 seats were already reserved
which would account for 46% of the seats and, thus, if reservation is directed
to be made in relation to 2 seats, which would have gone to the local
candidates, one seat out of it will have to be reserved, which would mean
reservation in excess of the quota of reservation made in terms of Regulation
4 which reads thus :
"4. RESERVATION IN FAVOUR OF THE
LOCAL CANDIDATES
(A) Admission to 85% of the seats shall be reserved in
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favour of the local candidates in relation to the local
area as provided in A.P. Educational Institutions
(Regulations of Admission) Order, 1974 as amended
from time to time.
STATE-WIDE COURSE :
M.D.(R.T) is State-wide course and admission to
this course shall be regulated as per the provision
in the A.P. Educational Institutions (Regulations of
Admission) Order, 1974 for State-wide course.
(B) LOCAL AREA :
i) The part of the State comprising the Districts of
Srikakulam, Vizianagaram, Visakhapatnam, East
Godavari, West Godavari, Krishna, Guntur and
Prakasam (Andhra University and Nagarjuna
University area) shall be regarded as the local area for
the purpose of admission to the Andhra Medical
College, Visakhapatnam, Rangaraya Medical College,
Kakinada and Guntur Medical College, Guntur.
ii) The part of the State comprising the Districts of
Adilabad, Hyderabad (including twin cities)
Rangareddy, Karimnagar, Khammam, Medak,
Mahaboobnagar, Nalgonda, Nizamabad and Warangal
(Osmania University and Kakatiya University area)
shall be regarded as local area for the purpose of
admission to the Osmania Medical College,
Hyderabad, Gandhi Medical College, Hyderabad and
Kakatiya Medical College, Warangal.
iii) The part of the State comprising the Districts of
Ananthapur, Kurnool, Chittoor, Cuddapah and
Nellore (S.V. University area) shall be regarded as
local area for the purpose of admission to the Kurnool
Medical College, Kurnool, and S.V. Medical College,
Tirupati.
(C) LOCAL CANDIDATES :
I) A candidate for admission shall be regarded as local
candidate in relation to a local area.
i) If he/she studied in an Educational Institution or
Educational Institutions in such local area for a period of
not less than 4 consecutive academic years ending with
the academic year in which he/she appeared or as the
case may be first appeared in relevant qualifying
examination.
Or
ii) Where during the whole or any part of the 4 consecutive
academic years ending with the academic year in which
he/she appeared or as the case ,may be first appeared for
the relevant qualifying examination, he/she has not
studied in Educational Institutions, if he/she had resided
in that local area for a period of not less than 4 years
immediately preceding the date of commencement of the
relevant qualifying examination, in which he/she
appeared or as the case may be first appeared.
II) A candidate for admission to any course of study who is
not regarded as a local candidate under sub-regulation (1)
above in relation to any local area shall
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i) If he/she has studied in educational institutions in
the State for a period of not less than 7 consecutive
academic years ending with academic year in
which he/she appeared or as the case may be first
appeared for the relevant qualifying examination
be regarded as local candidate in relation to;
a) Such local area where he/she has studied for the
maximum period out of the said period of 7
years
Or
b) Where the period of his/her study in two or
more local areas are equal, such local area
where he/she has last studied in such equal
periods
ii) If during the whole or any part of seven
consecutive academic years ending with academic
year in which he/she appeared or as the case may
be first appeared for relevant qualifying
examination, he/she has not studied in the
educational institution in any local area, but he/she
has resided in the State during the whole of the
said period of 7 years be regarded as a local
candidate in relation to
a)Such local area where he/she has resided for the
maximum period out of the said period of seven
years.
Or
b)Where the period of his/her residence in two or
more local areas are equal, such local area where
he/she has resided last in such equal periods.
EXPLANATION : (for purpose of this sub-regulation)
i) "Educational Institutions" means a University or
any Educational Institution recognized by the State
Government, a University or any other competent
authority.
ii) "Relevant qualifying examination in relation to
admission to any course of study" means the
examination, a pass in which is the minimum
educational qualification for admission to such
course of study.
NOTE: The relevant qualifying examination for admission to
Post-Graduate courses is MBBS examination. The
question whether the candidate is a local candidate
or not will be determined with reference to his/her
first appearance in the Part II of Final MBBS
examination.
iii) a) In reckoning the consecutive academic years
during which a candidate has studied any period of
interruption of his/her study by reasons of his/her
failure to pass any examination and any period of
his/her study in a statewide University or a statewide
educational institution shall be disregarded.
b) The status of candidates who passed MBBS from
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Siddhartha Medical College will be decided basing
on their study period prior to their admission into
MBBS course at Siddhartha Medical College for
arriving at the local and non-local status, since it is a
statewide institution.
iv) The question whether any candidate for admission to
any course of study has resided in any local area
shall be determined with reference to the places
where the candidate actually resided and not with
reference to the residence of his/her parent or
guardian.
(D) While determining under sub-regulation (A) the number
of seats to be reserved in favour of local candidates, any
fraction of seat shall be counted as one, provided that
there shall be one unreserved seat.
(E) If a local candidate in respect of a local area is not
available to fill any seats reserved or allocated in favour
of local candidate in respect of that local area such seats
shall be filled in as if it had not been reserved.
(F) The applicant who claims to be a local candidate with
reference to sub-regulation 4(C(1)(i) or 4(C)(II)(i) shall
produce in the form of study certificate/certificates issued
by the Head of the Educational Institution/Institutions
concerned indicating the details of the year or years in
which the candidate has studied in educational institution
in such local area for a period of not less than 4/7
consecutive academic years ending with the academic
year in which he/she appeared or as the case may be first
appeared for the Part-II of Final MBBS examination.
Those who did not qualify as local candidate under sub-
regulation 4(C)(1)(i) and 4(C)(II)(i) but claim to qualify
by virtue of residence shall produce a certificate issued
by an officer of the Revenue Department not below the
rank of Mandal Revenue Officer independent charge of
sub-taluk/Mandal in the form annexed to G.O.P. No.628
education dated 25.7.1974 appended to application form
with necessary modification.
(G) The following categories are eligible to apply for
admission to the remaining 15% of un-reserved seats:
i) All candidates defined under sub-regulation (C) of
regulation-4
ii) Candidates who have resided in the State for total period
of ten years excluding period of study outside the State or
either of those parents have resided in the State for a total
period of ten years excluding period of employment
outside the State.
iii) Candidates who are children of parents who are in the
employment of this State or Central Government, Public
Sector Corporation, Local Bodies, Universities and other
similar quasi-Public Institutions in the State.
iv) Candidates, who are spouses of those in employment of
this State or Central Government, Public Sector
Corporations, Local Bodies, Universities and Educational
Institutions recognized by the Government or a
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University or other competent authority and similar other
quasi Government Institutions within the State.
v) Candidates, who are employed in the State Government
undertakings, Public Sector Corporation, Local Bodies,
Universities and other similar quasi-Public Institutions
within the State.
vi) Candidates who are spouses of the local candidates as per
regulation 4(C)."
The State of Andhra Pradesh enacted the A.P. Educational Institutions
(Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983. In
exercise of its rule making power conferred upon it thereunder, the State
Government also framed the A.P. Medical College (Admissions into Post
Graduate Medical Course) Rules, 1997. By reason of G.O.Ms. No.260 dated
10.7.1997 reservation to the extent 15%, 6% and 25% of the total number of
seats was notified in each group of Degree and Diploma Courses in favour
of Scheduled Castes, Scheduled Tribes and Backward Classes respectively,
to the extent of 85% of the seats reserved in favour of the local candidates in
relation to the local areas in terms of the Presidential Order. So far as 15%
of the balance seats are concerned, the same were made unreserved i.e. seats
for open category candidates. The University of Health Sciences, Andhra
Pradesh also made regulations for admission to Post Graduate Medical
Courses in the Medical College in University of Health Sciences for the
academic year 1997-98 in terms of the Presidential Order as also the 1997
Rules.
Pursuant to Presidential Order of 1974, the state of Andhra Pradesh
was sub-divided into three local university areas, namely, (1) Osmania
University; (2) Andhra University and (3) Sri Venkateshwara University.
All these three university areas are situated in three different regions of the
State envisaged under the Presidential Order.
A bare perusal of the definition of local area read with Paragraphs 3, 4
and 5 of the Presidential Order, as referred to herein before, it would be
evident that 85% of the seats are reserved for local candidates in relation to
local areas. So far as an university area is concerned, a local candidate in one
particular university area would be a non-local one in another. The criteria
for admission of a candidate in the super speciality courses in the university
on the ground of being local or non-local is, therefore directly referable to
the university area and not the boundaries of the State of Andhra Pradesh.
It was not the case of the respondents that the Health University
regulations framed by the state of Andhra Pradesh was violative of the
Presidential Order, 1974 or Andhra Pradesh Medical Colleges (Admission
into Post Graduate Medical Courses) Rules, 1997. It is further not in dispute
that in terms of Rule 4 of the Andhra Pradesh Post Graduate Admission
Rules read with the Health Regulations; 85% of the seats in each local areas
are reserved for local candidates. It was not the contention of the
respondents that admissions in the courses of studies had not been made on
the basis of merit of the candidate in the entrance examination upon
following the rules of reservations nor was it the contention of the
respondents that the reservation made by the State to the extent of 46% in
favour of the reserved classes was ultra vires Articles 15 and 16 of the
Constitution of India. In the matter of admission, the Health University had
followed the procedure provided in Annexure III of G.O.(P) No. 646 dated
10.7.1979 having regard to the fact that by reason of the Presidential Order,
1974 only 85% of the seats are reserved in favour of the local candidates
which are required to be confined to the university area only. We, thus, do
not find any legal infirmity in the action of the appellants herein in directing
that 15% reserved for candidates of non-local area may be filled up only on
merit.
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Article 371-D of the Constitution of India contains a special
provision applicable to the State of Andhra Pradesh only. 54% of seats are
required to be filled up from open categories and 46% of seats are to be
filled up from the reserved category candidates in each of the three regions
from the medical colleges and engineering colleges. Having regard to the
reservations made region-wide, indisputably 85% of seats are to be filled up
from amongst local candidates whereas only15% of seats are to be filled up
from amongst outside candidates.
Articles 15 and 16 of the Constitution of India provide for enabling
provisions. By reason thereof the State would be entitled to either adopt a
policy decision or make laws providing for reservations. How and in what
manner the reservations should be made is a matter of policy decision of the
State. Such a policy decision normally would not be open to challenge
subject to its passing the test of reasonableness as also the requirements of
the Presidential Order made in terms of Article 371-D of the Constitution of
India.
It is not in dispute that limited seats are available for admission in the
super speciality courses. It may be true that normally the reservation has to
be made for the entire State but in terms of Article 371-D of the Constitution
of India reservation has to be made region-wise. The Seats have been
reserved indisputably on total available seats in each discipline and those
who come within the zone of consideration are considered for admission
from amongst the reserved category candidates. Once it is found that
reservation has been made for the reserved category candidates on the total
number of seats available in each course; the High Court must be held to
have committed a manifest error in issuing the impugned direction.
Having regard to the fact reservation has been provided to the extent of
46% of all the seats, the question of any further reservation i.e. for the
remaining 15% of the seats would not arise.
The High Court keeping in view the decision of this Court in Indra
Sawhney vs. Union of India and Ors. [1992 Supp (3) SCC 215] was bound
to proceed on the basis that the reservation cannot exceed 50%. In the said
case it was held :
"Just as every power must be exercised reasonably and
fairly, the power conferred by clause (4) of Article 16
should also be exercised in a fair manner and within
reasonable limits-and what is more reasonable than to say
that reservation under clause(4) shall not exceed 50% of
the appointments or posts, barring certain extraordinary
situations as explained hereinafter.
While 50% shall be the rule, it is necessary not to put out
of consideration certain extraordinary situations inherent
in the great diversity of this country and the people. It
might happen that in farflung and remote areas the
population inhabiting those areas might, on account of
their being out of the mainstream of national life and in
view of conditions peculiar to and characteristical to
them, need to be treated in a different way, some
relaxation in this strict rule may become imperative. In
doing so, extreme caution is to be exercised and a special
case made out."
Reservation being extreme form of protective measure
or affirmative action, it should be confined to minority of
seats. Even though the Constitution does not lay down
any specific bar but the constitutional philosophy being
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against proportional equality the principle of balancing
equality ordains reservation, of any manner, not to
exceed 50%.
(emphasis supplied)
In R.K. Sabharwal vs. State of Punjab [(1995) 2 SCC 745], this Court
observed:
"When the State Government after doing the necessary
exercise makes the reservation and provides the extent of
percentage of posts to be reserved for the said Backward
Class then the percentage has to be followed strictly. The
prescribed percentage cannot be varied or changed
simply because some of the members of the Backward
Class have already been appointed/promoted against the
general seats. As mentioned above the roster point which
is reserved for a Backward Class has to be filled by way
of appointment/promotion of the member of the said
class. No general category candidate can be appointed
against a slot in the roster which is reserved for the
backward Class. The fact that considerable number of
members of a Backward Class have been
appointed/promoted against general seats in the State
Services may be a relevant factor for the State
Government to review the question of continuing
reservation for the said class but so long as the
instructions/rules providing certain percentage of
reservations for the Backward Classes are operative the
same have to be followed. Despite any number of
appointees/promotees belonging to the Backward Classes
against the general category posts the given percentage
has to be provided in addition."
Reservation is aimed at securing equal and protective discrimination.
Recently, the purpose of reservation although in a different context has been
stated by this Court in A.I.I.M.S. Students Union vs. A.I.I.M.S [ 2002 (1)
SCC 428]. It was observed:
"Reservation, as an exception, may be justified subject to
discharging the burden of proving justification in favour
of the class which must be educationally handicapped
the reservation geared up to getting over the handicap.
The rationale of reservation in the case of medical
students must be removal of regional or class inadequacy
or like disadvantage. Even there the quantum of
reservation should not be excessive or societally
injurious. The higher the level of the speciality the lesser
the role of reservation.
Any reservation, apart from being sustainable on the
constitutional anvil, must also be reasonable to be
permissible. In assessing the reasonability one of the
factors to be taken into consideration would be whether
the character and quantum of reservation would stall or
accelerate achieving the ultimate goal of excellence
enabling the National constantly rising to higher levels.
In the era of globalisation, where the nation as a whole
has to compete with other nations of the world so as to
survive, excellence cannot be given an unreasonable go
by and certainly not compromised in its entirety.
Fundamental duties, though not enforceable by a writ of
the Court, yet provide a valuable guide and aid to
interpretation of Constitutional and legal issues. In case
of doubt or choice, people’s wish as manifested through
Article 51-A can serve as a guide not only for resolving
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the issue but also for constructing or moulding the relief
to be given by the Courts."
In Marri Chandra Sekhar Rao vs. Dean, Seth G.S. Medical College
& Ors. [1990 (3) SCC 130], it was held:
"Equality must become a living reality for the large
masses of the people. Those who are unequal, in fact,
cannot be treated by identical standards; that may be
equality in law but it would certainly not be real equality.
Existence of equality of opportunity depends not merely
on the absence of disabilities but on presence of abilities.
It is not simply a matter of legal equality. De jure
equality must ultimately find its raison d’etre in de facto
equality. The State must, therefore, resort to
compensatory State action for the purpose of making
people who are factually unequal in their wealth,
education or social environment, equal in specified areas.
It is necessary to take into account de facto inequalities
which exist in the society and to take affirmative action
by way of giving preference and reservation to the
socially and economically disadvantaged persons or
inflicting handicaps on those more advantageously
placed, in order to bring about real equality."
The principle of fixing the percentage of reservation emanates from
the doctrine of reasonableness. In Balaji vs. State of Mysore [1963 Supp.
1 SCR 439] this Court speaking through Gajendragadkar, J. struck down the
Government Order impugned therein describing it as a fraud on the
Constitution and the action of the executive was characterized as ’patently
and plainly outside the limits of the Constitutional authority conferred on the
State’.
In N.M. Thomas vs. State of Kerala AIR 1976 SC 490, it was held
that reservation exceeding 49% had been permitted on the ground that SCs
were not castes in a real sense and Article 16(4) was not an exception.
Krishna Iyer, J. in Karmachari Sangh AIR 1981 SC 293, however,
abandoned the aforementioned theory wherein his Lordship held that he was
prepared to assume that they were castes and in any event Article 16(4) was
an exception. In the said judgment, the final address of Dr. Ambedkar to the
Constituent Assembly was dealt with in extenso.
Sri H.M. Seervai in his classic treatise on "Constitutional Law of
India", Fourth Edition at page 611 states:
"But this passage gives an incorrect impression of Dr.
Ambedkar’s final address. He was not thinking of the
SCs and STs or of the equality code as the following
passage clearly shows:
I remember the days when politically minded Indians
resented the expression ’the people of India’. They
preferred the expression "The Indian nation". I am of the
opinion that in believing that we are a nation we are
cherishing a greet delusion. How can people divided into
several thousands of castes be a nation? The sooner we
realize that we are not as yet a nation in the social and
phychological sense of the word, the better for us. For,
then only we shall realise the necessity of becoming a
nation and seriously think of ways and means of realising
the goal. The realisation of his goal is going to be very
difficult-far more difficult that it has been in the United
States. The United States has no caste problem. In India
there are castes. The castes are anti-national. In the first
place because they bring about separation in social life.
They are anti-national also because they generate
jealousy and antipathy between caste and caste. But we
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must overcome all these difficulties if we wish to become
a nation in reality. For, fraternity can be a fact only when
there is a nation. Without fraternity, equality and liberty
will be no deeper than coats of paint."
The learned author states:
A service which lacks an esprit de corps, that is,
consciousness of and pride in belonging to a particular
service, lacks an element essential to an efficient and
harmonius administration. To balance the claims of these
parties, in considering reservation quotas, requires
critical analysis and calm deleberation; anger at the
treatment meted out to classes to which one of the parties
belongs does not help, for anger has been rightly likened
"to a hasty servant who runs away before he has heard
half the message".
Further it was opined:
"It is necessary to remember that in litigation there are
more parties than one, that it is wrong to gratify the
plaintiff to the detriment of the defendant, and that, while
sympathy is a most commendable quality, it never
appears in a less attractive guise than when it is practiced
at the expense of somebody else.
If past injustice done to members of SCs and STs
because of the accident of their birth calls for
condemnation, so does injustice done to members of
’advanced classes’ because of the accident of their birth.
It may be that members of ’advanced classes’ may have
to bear for a time, as best as they can, the injustice done
to them by reverse discrimination, if a long standing
historical wrong has to be righted. But 40 years have
gone by since our Constitution came into force; and
every year that passes increases the individual’s sense of
injustice and injury. It is submitted that Judges who have
to balance the claims of all the parties affected by any
action under Article 16(4) ought to reflect that if the
injustice of the past are to be strongly denounced now,
then the future will denounce quite as strongly the
injustices suffered by members of ’advanced classes’
since 1950".
In Indra Sawhney (supra) it has been clearly held that the doctrine of
principles of reservations have to be applied having regard to the vacancy
position as existing in the entire area, the only exception being the cases,
which would be falling under Article 16(4).
In K.Duraisamy & Anr. vs. State of T.N. & Ors., (2001) 2 SCC 538,
this Court held:
"The mere use of the word ’reservation’ per se does not
have the consequence of ipso facto applying the entire
mechanism underlying the constitutional concept of a
protective reservation specially designed for the
advancement of any socially-and-educationally-backward
classes of citizens or for the Scheduled Castes and
Scheduled Tribes, to enable them to enter and adequately
represent in various fields. The meaning, content and
purport of the expression will necessarily depend upon
the purpose and object with which it is used."
In the event, the ratio of the impugned judgement of the High Court
is given effect to having regard to the limited number of seats available by
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providing reservation of an additional seat, principle of reservation to the
extent is 50% would be violated. Furthermore, it is not for the High Court to
say as to the efficacy or otherwise of the policy of the State as regard
providing for reservation for the reserved category candidates and in that
view of the matter the High Court, in our opinion must be held to have
committed a manifest error in issuing the impugned directions, as a result
whereof percentage of reservation would exceed 46%. Such a direction by
the High Court is not contemplated in law.
The impugned direction of the High Court, therefore, cannot be
sustained. It is set aside accordingly.
These appeals are allowed but in the facts and circumstances of the
case, there shall be no order as to costs.