2001 Supreme(SC) 1161

2001(6) Supreme 367
Supreme Court of India
(From Delhi High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and Shivaraj V. Patil, JJ.
A.I.I.M.S. Students Union —Appellant
versus
A.I.I.M.S. & Ors. —Respondents
Civil Appeal No. 7366 of 1996
And
Civil Appeal No. 7367 of 1996
Decided on 24-8-2001
Counsel for the Parties :
For the Appearing Parties : R.N. Trivedi, Additional Solicitor General, Rakesh Dwivedi, U.N. Bachawat, Sr. Advocates, Ms. Kamini Jaiswal, T. Raja, Advocate (NP), S.R. Hegde, Satya Mitra, Sushil Kumar Jain, S.D. Sharma, Alok Bachawat, A.P. Dhamija, A.P. Chhabra, L.P. Singh, Shyam Moorjhani, M.K.D. Namboodri, Advocate (NP), S.R. Bhat, Naveen R. Nath, Mukul Gupta, Advocates.

Very Important Point
The institutional reservation for AIIMS candidates is declared ultra vires the Constitution and hence, is rightly struck down by Delhi High Court. However, Apex Court laid down certain directions for future to meet the ends of justice with a note of caution to adopt a better alternative scheme discussed by Academic Committee or any body of experts in future.

Headnote:(i) Constitution of India—Articles 15 and 16—Delhi High Court striking down 33 quota carved out in favour of the AIIMS in-house candidates both at the entry level and also disciplinewise—Appeal against to Supreme Court—Contention that what has been provided for the institute’s candidates is not a ‘reservation’ in the sense it is understood in Constitution as what has been provided for is a source of entry or a channel for admission which is held valid in K. Duraiswamy & Anr.’s case—Whether correct? (No)—It is reservation and not a source of entry.

       Held : Reservation is guided by consideration of ensuring allotment of a privilege or quota to, or conferral of state largesse on, a defined class or category of limited persons dispensing with the need of competition with another defined class of persons or remaining persons. Beneficiary of reservation is necessarily a minor or smaller group of persons which deservedly stands in need of protection or push up because of historical, geographical, economic, social, physical or similar such other handicaps. Persons consisting in reserved category are found to be an under-privileged class who cannot be treated on par with a larger and more privileged class of persons and shall be denied social justice and equality unless protected and encouraged. Sources of recruitment or entry are carved out for the purpose of achieving a defined proportion of intermingling at the target or destination between two or more categories of such persons who though similarly situated or belonging to one class to begin with, have stood divided into two or more categories by fortuitous circumstances and unless allowed entry from two separate sources one would exclude or block the other. No one of the two classes can be said to be weaker than the other. The factor impelling provision of different or separate sources of entry may not provide justification for reservation. Two source of entry ensure an equal distribution between two segments of one society. The emphasis in reservation is on the subjects; the emphasis in providing sources of entry is on the subject matter. Reservation is protective discrimination; provision for sources of entry is aimed at securing equal or proportionate distribution. The characteristics of the two may to some extent be over lapping yet the distinction is perceptible though fine. In Kumari Chitra Ghosh & Anr. v. Union of India & Ors., (1969) 2 SCC 228, the test laid down for determining validity of sources of admission are that the sources are properly classified whether on territorial, geographical or other reasonable basis and must have a rational nexus with the object of imparting a particular education and effective selection for the purpose. In laying down sources of entry there is no question of any preferential treatment being accorded to any particular category or class of persons desirous of receiving medical education over the other. In our opinion, reliance by the learned counsel for the appellant on the decision in K. Duraisamy’s case (supra) is entirely misconceived inasmuch as the questions which are arising for decision in the case before us are different and attract applicability of different considerations. Institute’s in-house candidates do not bear any similarity with in-service candidates considered in K. Duraisamy’s case so as to claim analogy with them and have the benefit of the ratio of K. Duraisamy’s case. Secondly, the question whether merit can be sacrificed to such an extent as to be bidden almost a good-bye resulting into candidates too low in merit being preferred to candidates too high in merit and the margin of difference between the two being too wide, did not arise for consideration before this Court in K. Duraisamy’s case. We are dealing with a case where the division of seats between two classes coupled with two level reservation and unique percentile method has been so carved out, as if tailor-made, as is resulting into a reservation which ensures allotment to the extent of 100 of PG seats followed by guaranteed placement in the choicest of creamy disciplines to the candidates belonging to one category (i.e. Institute’s in-house candidates) without regard to their competitive merit. This is not a reservation but a super-reservation and certainly not a source of entry. The first submission of the learned counsel for the appellants therefore fails. (Paras 30, 31 and 32)

       (ii) Constitution of India—Articles 15 and 16—Delhi High Court striking down 33 quota carved out in favour of the AIIMS in-house candidates both at the entry level as also disciplinewise—Appeal against to Supreme Court—Contention that reservation in favour of those who graduated from Institute is justified while seeking admission to post-graduate courses of study on the well accepted principles of Institutional community—Reservation for institutional community at the cost of merit —If sustainable and how far?—Suggestions of Academic council of AIIMS—Whether acceptable in toto? —The end result—Directions Clarifications about directions—Appeals disposed of in terms of the directions made—Case law reviewed and discussed—(Law of education—Criteria for admission in professional courses —Legality) necessary.

       Held : The principle of institutional continuity while seeking admission to higher levels of study as propounded by the learned counsel for the appellants though argued at length does not have much room available for innovative judicial zeal to play, for the ground already stands almost occupied by set of precedents, more so when we are dealing with professional or technical courses of study. It would suffice to have a brief resume thereof noticing the details wherever necessary. (Para 33)

       After reviewing case law upto 1984

       Held : It is thus clear that as far back as in 1984 this court has disapproved reservations in postgraduate courses on the ground of institutional preference though justified a reasonable institutional preference being allowed, ‘for the present’, having regard to (i) broader considerations of equality of opportunity; and (ii) institutional continuity in education. (Para 38)

       Held further : When protective discrimination for promotion of equalisation is pleaded, the burden is on the party who seeks to justify the ex facie deviation from equality. The basic rule is equality of opportunity for every person in the country which is a constitutional guarantee. A candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels and education like post-graduate courses. Reservation, as an exception, may be justified subject to discharging the burden of proving justification in favour of the class which must be educationally handicapped - the reservation geared up to getting over the handicap. The rationale of reservation in the case of medical students must be removal of regional or class inadequacy or like disadvantage. Even there the quantum of reservation should not be excessive or societally injurious. The higher the level of the speciality the lesser the role of reservation. (Para 42 )

       After discussing case law :

       Held : Preamble to the Constitution of India secures, as one of its objects, fraternity assuring the dignity of the individual and the unity and integrity of the nation to ‘we the people of India’. Reservation unless protected by the constitution itself, as given to us by the founding fathers and as adopted by the people of India, is sub-version of fraternity, unity and integrity and dignity of the individual. While dealing with Directive Principles of State Policy, Article 46 is taken note of often by overlooking Articles 41 and 47. Article 41 obliges the State inter alia to make effective provision for securing the right to work and right to education. Any reservation in favour of one, to the extent of reservation, is an inroad on the right of others to work and to learn. Article 47 recognises the improvement of public health as one of the primary duties of the State. Public health can be improved by having the best of doctors, specialists and super specialists. Under-graduate level is a primary or basic level of education in medical sciences wherein reservation can be understood as the fulfilment of societal obligation of the State towards the weaker segments of the society. Beyond this, a reservation is a reversion or diversion from the performance of primary duty of the State. Permissible reservation at the lowest or primary rung is a step in the direction of assimilating the lesser fortunates in mainstream of society by bringing them to the level of others which they cannot achieve unless protectively pushed. Once that is done the protection needs to be withdrawn in the own interest of protectees so that they develop strength and feel confident of stepping on higher rungs on their own legs shedding the crutches. Pushing the protection of reservation beyond the primary level betrays bigwigs’ desire to keep the crippled crippled for ever. Rabindra Nath Tagore’s vision of a free India cannot be complete unless "knowledge is free" and "tireless striving stretches its arms towards perfection". Almost a quarter century after the people of India have given the Constitution unto themselves, a chapter on fundamental duties came to be incorporated in the Constitution. Fundamental duties, as defined in Article 51A, are not made enforceable by a writ of court just as the fundamental rights are, but it cannot be lost sight of that ‘duties’ in Part IVA - Article 51A are prefixed by the same word ‘fundamental’ which was prefixed by the founding fathers of the Constitution to ‘rights’ in Part III. Every citizen of India is fundamentally obligated to develop the scientific temper and humanism. He is fundamentally duty bound to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievements. State is, all the citizens placed together and hence though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the State. 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 nation constantly rising to higher levels. In the era of globalisation, where the nation as a whole has to compete with other nations of the world so as to survive, excellence cannot be given an unreasonable 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 51A, can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values. (Para 56)

       Held consequently : The upshot of the above discussion is that institutional reservation is not supported by the Constitution or constitutional principles. A certain degree of preference for students of the same institution intending to prosecute further studies therein is permissible on grounds of convenience, suitability and familiarity with an educational environment. Such preference has to be reasonable and not excessive. The preference has to be prescribed without making an excessive or substantial departure from the rule of merit and equality. It has to be kept within limits. Minimum standards cannot be so diluted as to become practically non-existent. Such marginal institutional preference is tolerable at post-graduation level but is rendered intolerable at still higher levels such as that of super-speciality. In the case of institutions of national significance such as AIIMS additional considerations against promoting reservation or preference of any kind destructive of merit become relevant. One can understand a reasonable reservation or preference being provided for at the initial stage of medical education, i.e., under-graduate level while seeking entry into the institute. It cannot be forgotten that the medical graduates of AIIMS are not ‘sons of the soil’. They are drawn from all over the country. They have no moorings in Delhi. They are neither backward nor weaker sections of the society by any standards - social, economical, regional or physical. They were chosen for entry into the Institute because of their having displayed and demonstrated excellence at all-India level competition where thousands participate but only a mere 40 or so are chosen. Their achieving an all-India merit and entry in the premier institution of national importance should not bring in a brooding sense of complacence in them. They have to continue to strive for achieving still higher scales of excellence. Else there would be no justification for their continuance in a premier institution like AIIMS. In AIIMS where the best of facilities are available for learning with best of teachers, best of medical services, sophistication, research facilities and infrastructure, the best entrants selected from the length and breadth of the country must come out as best of all-India graduates. We fail to understand why those who were assessed to be best in the country before entering the portals of the Institute fail down to such low levels as having perceptibly ceased to be best, not remaining even better, within a period of a few years spent in the Institute. They trail behind even such candidates as fall in constitutionally reserved categories and yet steal a march over them in claiming creamy disciplines. The only reason which logically follows from the material available on record is that being assured of allotment of post-graduation seats in the same institution, the zeal for preserving excellence is lost. The students lose craving for learning. Those who impart instructions also feel that their non-seriousness would not make any difference for their taughts. If that is so, there is no reason why at the point of clearing graduation and seeking entry in post-graduation courses of study they should not give way for those who deserve better, and much better, than them. AIIMS holds and conducts a common entrance examination for post-graduation wherein graduates of AIIMS and graduates from all over the country participate and are tested by common standards. The AIIMS students trail in the race and yet are declared winners, thanks to the ingenious reservation in their favour. One who justifies reservation must place on record adequate material enough, to satisfy an objective mind judicially trained, to sustain the reservation, its extent and qualifying parameters. In the case at hand no such material has been placed on record either by the institute or by the AIIMS Students’ Union. The facts found by Delhi High Court, well articulated by the learned Chief Justice speaking for the Division Bench of the High Court of Delhi, visibly demonstrate the arbitrariness and hence unsustainability of such a reservation. It was an outcome of agitation- generated-pressure depriving application of mind, reason and objectivity of those who took the decision. No material has been placed on record to show that Institute graduates, if asked to face all-India competition while seeking PG seats, would get none or face feeble opportunities because of the policies of other universities. The way merit has been made a martyr by institutional reservation policy of AIIMS, the high hopes on which rests the foundation of AIIMS are belied. No sound and sensible mind can accept scorers of 15-20 being declared as passed, crossing over the queue and arraigning themselves above scorers of 60-70 and that too to sit in a course where they will be declared qualified to fight with dreaded and complicated threats to human life. Will a less efficient post graduate or specialist doctor be a boon to society? Is the human life so cheap as to be entrusted to mediocres when meritorious are available? If the answer is yes, we are cutting at the roots of nation’s health and depriving right to equality of its meaning. We have no hesitation in holding, and thereby agreeing with the Division Bench of High Court, that reserving 33 seats for institutional candidates was in effect 100 reservation for subjects. Coupled with 50 reservation in allocation of specialities not exceeding over-all 33 reservation integrated with 65 percentile’ – a complex method, the actual working whereof even the learned senior counsel for the parties frankly confessed their inability in demonstrating before us at the time of hearing – is a conceited gimmick and accentuated politics of pampering students, weak in merit but mighty in strength. Such a reservation based on institutional continuity in the absence of any relevant evidence in justification thereof is unconstitutional and violative of Article 14 of the Constitution and has therefore to be struck down. The impugned reservation, obnoxious to merit, fails to satisfy the twin test under Article 14. Having taken a common entrance test, there is no intelligible differentia which distinguishes the institutional candidates from others; and there is no nexus sought to be achieved with the objects of AIIMS by such reservation. Can the court sustain and uphold such reservation? ‘Justice is the earnest and constant will to render every man his due. The precepts of the law are these: to live honorably, to injure no other man, to render to every man his due’ – said Justinian. Giving a man his due, one of the basics of justice, finds reflected in right to equality. Mediocracy over meritocracy cuts at the roots of justice and hurts right to equality. Protective push or prop, by way of reservation or classification must withstand the test of Article 14. Any over-generous approach to a section of the beneficiaries if it has the effect of destroying another’s right to education, more so, by pushing a mediocre over a meritorious belies the hope of our Founding Fathers on which they structured the great document of Constitution and so must fall to the ground. To deprive a man of merit of his due, even marginally, no rule shall sustain except by the aid of Constitution; one such situation being when deprivation itself achieves equality subject to satisfying tests of reason, reasonability and rational nexus with the object underlying deprivation. (Para 57)

       As to suggestions of Academic Council of AIIMS :

       Held : The Academic Committee has been bold enough to admit that some anomalies had crept in to the selection procedure due to the quota being implemented without insistence on any minimum qualifying marks and therefore the committee proposed to immediately add minimum qualifying marks as pre-requisites to eligibility for the AIIMS quota which was also to be reduced from 1/3rd to 1/4th of the available seats. The committee felt that the quota be implemented disciplinewise in accordance with the pattern all over India and also to obviate any challenges on the basis of one speciality being more in demand than the other in any particular year. The committee therefore decided :-

       (1) to recommend a 25 quota disciplinewise out of the total post-graduate seats for AIIMS under-graduates;

       (2) a uniform minimum cut-off of 50 marks in the competitive entrance test as a condition of eligibility for all candidates;

       (3) 75 compulsory attendance during the course shall be made mandatory for AIIMS students..

       We regret our inability to endorse the abovesaid decision of the Academic Committee in its entirety and for all times. What we had expected was formulation of any constitutionally relevant criteria but what has been handed down to us is more of a justification for institutional reservation. The grounds of justification set out in the affidavit were, generally speaking, not taken up in the pleadings either before the High Court or before this Court. The justifications pleaded are not supported by any factual data so as to enable relationship of relevancy being judicially spelled out between facts and reasons. We may quickly test the reasons assigned. For example, as to reason (a) it is difficult to subscribe to the view that a student coming from a place other than Delhi would lose his domicile status merely because he has come to study in an Institute at Delhi. So also we cannot subscribe to reason (b) that meritorious students would come to Institute foregoing admissions in other better institutions only because they are assured of PG seats. And if that is the impression that they would assuredly be getting a PG seat inspite of their performance stooping down too low then that impression must vanish and earlier the better it would be. As to reason (c) how much time would it take for even a fresh entrant in PG to assimilate himself with ‘Institute’s developing pattern of education’ once he has dedicated himself to his studies and learning? Accepting the content of reason (d) would be depriving the entrance examination of its efficacy to make assessment. Without dwelling further, for we are not joining any issue with the Academic Committee, which is entitled to our esteem for its expertise, we record our disagreement with the Academic Committee. Yet for the present, and until a better alternative is found out, we do not deem it proper to strike down the proposal of the Academic Committee of AIIMS as incorporated in the affidavit of the Director dated 11.4.2001 in its entirety and we are inclined to sustain the same with some modifications. (Para 60 & 61)

       Held finally : The following directions in our opinion will meet the ends of justice :-

       (1) The institutional reservation for AIIMS candidates is declared ultra vires the Constitution and, hence, is struck down.

       (2) By way of institutional preference the institutional candidates, i.e., those who have graduated from the institute shall be preferred for admission against 25 seats available to open category candidates and not 25 seats disciplinewise out of the total post-graduate seats for AIIMS undergraduates as suggested by the Academic Committee.

       (3) An uniform minimum cut-off of 50 marks in the competitive entrance test as a condition of eligibility for all candidates may be adopted subject to further rider (i) that the last student to qualify for admission as AIIMS graduate cannot be one who has secured marks at the common entrance P.G. test less than the one secured by any other candidate belonging to a reserved category enjoying constitutional protection such as SC, ST etc., and (ii) that the margin of difference between the qualifying marks for Institute’s candidate shall not be too wide with the one for general category candidate.

       (4) Any seat left vacant out of the preferential seats for AIIMS graduates consequent upon the abovesaid directions, shall be diverted to and made available for open general category candidates.

       (5) The preference for institute candidates to the extent of 25 as abovesaid shall remain confined to admission in P.G. course of study. There shall be no further reservation in the matter of allotment of seats disciplinewise which allotment shall be made solely on the basis of merit out of a common list drawn up pursuant to the result of common entrance examination placing the selected candidates strictly as per their ranking. (Para 62)

       Held by way of clarification : So we drop the curtain on the controversy for the present. Before parting it is necessary to place on record certain observations by way of clarifications lest our judgment should be misunderstood or misapplied. Our judgment shall not come in the way of the Academic Committee or any other competent body of experts devising a better alternative scheme of admissions to the post-graduate level of study in the Institute which may revise and further scale down the reservation or preference by giving more weight to merit and excellence. We have not touched and not dealt with other reservations made by the Institute and therefore our judgment is not an implied approval of other reservations as to which we have grave doubts if they would be sustainable if challenged and we do not say any more as the present case does not provide an occasion for testing the validity of other reservations. Further, this judgment of ours shall not have the effect of invalidating such admissions as have already been given. The directions made hereinabove shall operate for future, i.e. today onwards. The appeals are disposed of in terms of the directions made hereinabove. No order as to the costs. (Para 63)