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2003 (11) TMI 601

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....ourses. They applied for and were granted admission forms having regard to the decision of this Court in Dr. Parag Gupta v. University of Delhi and Ors., In the Bulletin of Information issued by the University of Delhi, it was stated, that Candidates like the appellants would be entitled for admission in Post Graduate Courses subject to the decision of a matter pending in this Court, i.e. Magan Mehrotra and Ors. v. Union of India and Ors. since reported in (2003)3 SCALE 101. A three-Judge Bench of this Court in Magan Mehrotra (supra) inter alia, therein held that apart from institutional preference, no other preference including reservation on the basis of residence is envisaged in the Constitution, in view of the decision of this Court in Dr. Pradeep Jain and Ors. v. Union of India and Ors. The Delhi University on or about 31.12.2002 relying on or on the basis of the decision of this Court in Magan Mehrotra (supra) issued the following notification : "In view of the judgment of the Hon'ble Supreme Court of India dated 17.12.2002 in Writ Petition (C) No. 417 of 2002. It is hereby notified that for admission of P.G. Courses during the Academic Session 2003, only Delhi Univers....

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....reference would be unconstitutional. The learned counsel took us through the decisions of this Court operating in the field and urged that in view of the passage of time no reservation should be permitted either on the basis of residence or on institutional preference. Reservation on residential criteria, the learned counsel contended, is squarely hit by Clause (1) of Article 15 of the Constitution of India. Placing reliance on the debates on the subject at the time of framing of the Constitution. Shri Salve urged that the 'place of birth' being synonymous with 'domicile' the observations made contrary thereto in D.P. Joshi v. The State of Madhya Bharat and Anr. are not correct. Shri Salve further contended that in terms of the constitutional scheme, reservation is permissible only when there exist compelling Government objectives therefore and that too on nominal basis if it can be demonstrated that 'rule of merit' should not be allowed to be sustained and when the class in whose favour a departure is sought to be made constitutes a homogeneous group and such departure satisfies the tests of social justice for securing equality upon comparison of such disa....

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....this Court in Dr. Pradeep Jain's case (supra), the learned counsel submitted that as all students are entitled to equal opportunities all sorts of reservations must be given a go bye. The learned counsel next contended that in any event, the students like the appellants should not be held to have lost their residential status only because they had gone out of their State of origin for pursuing their MBBS Course for a period of five years. According to Shri Salve, Magan Mehrotra (supra), does not lay down the correct law and it is required to be overruled. Assailing reservation by way of institutional preference, Shri Salve, further submitted that the very premise upon which it, is based is fallacious inasmuch as the majority of students, in view of the decision of this Court in Dr. Pradeep Jain's case (supra) having taken admission on the criteria of domicile alone, would again be considered for pursuing their Post Graduate Studies only on that basis and, thus, reservation by way of institutional preference would amount to indirect way of doing things as the same would for all intent and purport would be based on domicile and, thus, is liable to (sic) Shri Salve further ....

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....lass family to send their children out of the State. Furthermore, the learned counsel contended that the chances that the local students would serve the local people cannot be completely ruled out and, thus, such a criteria cannot be said to be illogical or bad in law. As regard application of strict scrutiny test, Shri Shanti Bhushan relying on or on the basis of the decision in Shri Ram Krishna Dalmia v. Justice S.R. Tendolkar and Ors. [1959 SCR 279] submitted that this Court has laid down the law that the constitutionality of a statute must be presumed and onus to prove that the statute is unconstitutional is upon the person who asserts the same. Only two tests, namely, as to whether the classification is reasonable and based on an intelligible differentia stood the test of time and there is no reason to deviate therefrom. Shri Shanti Bhushan argued that reservation by way of institutional preference had been holding the field since this Court decided Dr. Pradeep Jain's case (supra) and nothing has been pointed out by the petitioners to show that the said principle should be departed from. Shri A. Mariarputham, learned counsel appearing on behalf of Delhi University, suppl....

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....ts for the local candidates. It was pointed out that unlike other studies Post Graduate Medical Courses involve practical training and the students are required to work in the hospitals wherein they are paid stipends by the States. It was urged that the States have been finding it extremely difficult to get good number of local doctors to serve the rural population and, thus, such a criteria, according to the learned counsel, cannot be said to be unconstitutional. Before we embark upon the questions raised at the Bar, we may notice that the States before the decision of this Court in Dr. Parag Gupta's case (supra) had been following different criteria as regard grant of preference i.e. either on institution basis or on residence basis or both. The positions prevailing in different States before and after Dr. Parag Gupta's case (supra) and at present are given as under : POSITION BEFORE PARAG GUPTA Sl. State Nature of Preference 1. U.P. Institutional 2. Delhi Institutional 3. Maharashtra Institutional 4. Gujarat Institutional 5. West Bengal Institutional 6. Assam Residence 7. Tamil Nadu Residence 8. Goa Residence 9. Karnataka Residence 10. Madhya Pradesh Institut....

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....y of issuing notices by this Court again in Magan Mehrotra's case (supra) must be considered from that angle. In Magan Mehrota's case (supra), this Court not only reiterated that the reservation by way of institutional preference be maintained but also directed the aforementioned States to follow the same. The questions must, therefore, be considered in the aforementioned factual backdrop. The first question that arises for consideration is, whether the reservation on the basis of domicile is impermissible in terms of Clause (1) of Article 15 of the Constitution of India ? The term 'place of birth' occurs in Clause (1) of Article 15 but not 'domicile'. If a comparison is made between Article 15(1) and Article 16(2) of the Constitution of India, it would appear that whereas the former refers to 'place of birth' alone, the latter refers to both 'domicile' and 'residence' apart from place of birth. A distinction, therefore, has been made by the makers of the Constitution themselves to the effect that the expression 'place of birth' is not synonymous to the expression "domicile" and they reflect two different concepts. It may be....

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....lassification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure." The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to othe....

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....ourts always lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative "on the principle expressed in the maxim : ut res magis valeat quam pereat". [See CIT v. Teja Singh and Tinsukhia Electric Supply Co. Ltd. v. State of Assam]. Applying the test of presumption of constitutionality no case has been made out for invoking the doctrine of strict construction or intermediate construction. The third question that arises for our consideration is, whether the reservation by institutional preference is valid? India is one country and all its citizens should equally be treated. The essence of equality is enshrined in Article 14 of the Constitution of India. But does it mean that equality clause must be applied to all citizens to all situations? It is true that the country should strive to achieve a goal of excellence which in turn would mean that meritorious students should not be denied pursuit of higher studies. This itself brings us the question, who is to judge the merit and what are the standards therefor? It is extremely difficult to lay down a fool- proof criteria. Suc....

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....nt act, like the Constitution of the United States, we must realise that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realise or to hope that they had created an organism, it has taken a century and has cost their successors must sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." [Emphasis supplied] Equally important is an elucidation of Justice Frankfurter contained in an article "Some Reflections on the Reading of Statutes". This Court also in Jagadish Saran and Ors. v. Union of India, a decision which is applicable in the fact situation of this case, stated the law thus : "Law, constitutional law, is not an omnipotent abstraction or distant idealization but a principled, yet pragmatic, value-laden and resulted-oriented, set of propositions applicable to and conditioned by a concrete stage of social development of the nation and aspirational imperatives of the people. India Today -- that is the inarticulate major premise of o....

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.... therefore, to be evolved for making selection of students for admission to the medical colleges and such principle has to be in conformity with the requirement of Article 14. Now, the primary imperative of Article 14 is equal opportunity for all across the nation for education and advancement and, as pointed out by Krishna Iyer, J. in Jagdish Saran v. Union of India "this has burning relevance to our times when the country is gradually being 'broken up into fragments by narrow' domestic walls' by surrender to narrow parochial loyalties". What is fundamental, as an enduring value of our polity, is guarantee to each of equal opportunity to unfold the full potential of his personality. Anyone anywhere, humble or high agrestic or urban, man or women, whatever be his language or religion, place of birth or residence, is entitled to be afforded equal chance for admission to any secular educational course for cultural growth, training facility, speciality or employment. It wold run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State A, which ordinarily in the commonality of cases, would be ....

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....l colleges must be to secure the best and most meritorious students.'" But it was observed : "...Whether consistently with the constitutional values, admissions to a medical college or any other institution of higher learning situate in a State can be confined to those who have their 'domicile' within the State or who are residents within the State for a specified number of years or can any reservation in admission be made for them so as to give them precedence over those who do not possess 'domicile' or residential qualification within the State, irrespective of merit..." The right of development in a developing country is acknowledged in International Treaties, Charters and Conventions. Referring to the State mentality and pointing out to the law that there does not exist any separate State domicile in India, this Court specifically banished the residential requirement for the purpose of admission into Post Graduate Medical Courses for all times. It directed : "So much for admission to the MBBS course, but different consideration must prevail when, we come to consider the question of reservation based on residence requirement within the State or on instit....

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....s, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless.  Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for postgraduate or post-doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital sendee. Even the poorest, when stricken by critical illness, needs the attention of super-skilled specialists, not humdrum second-rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is post-graduate or post- doctoral. These passages from the judgment of Krishna Iyer, J. clearly and forcibly express the ....

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....ege or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admission to the MBBS course. But, even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all-India basis." It in no uncertain terms directed : "The decisions reached by us in these writ petitions will bind the Union of India, the State Governments and Administrations of Union Territories because it lays down the law for the entire country and moreover we have reached this decision after giving notice to the Union of India and all the State Governments and Union Territories..." A scheme, thus, came to be framed by this Court which is a law within the meaning of Article ....

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....s, however, came to be modified in Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College, Allahabad and Ors. in the following terms :- "We would also like to clear up one misunderstanding which seems to prevail with some State Governments and universities in regard to the true import of our Judgment dated June 22, 1984. They have misinterpreted our Judgment to mean that 30% of the total number of seats available for admission to MBBS course in a medical college should be kept free from reservation on the basis of residence requirement or institutional preference. That is a total misreading of our Judgment. What we have said in our Judgment is that after providing for reservation validly made, whatever seats remain available for non-reserved categories, 30% of such seats at the least, should be left free for open competition and admission to such 30% open seats should not be based on residence requirement or institutional preference but students from all over the country should be able to compete for admissions to such 30% open seats. To take an example, suppose there are 100 seats in a medical college or university and 30% of the seats are validly reserved for candidates belo....

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....o be misapplied by the Allahabad High Court in Vineet Singh's case wherein the High Court directed consideration of cases of the students who belonged to the State of U.P. irrespective of the fact that whether they had gone out of their home State on 15% all-India quota or not. This Court in State of U.P. and Ors. v. Vineet Singh and Ors. clarified the position holding that the High Court was wrong in extending the benefit in Dr. Parag Gupta's case (supra) to other students and reiterated that Dr. Parag Gupta's decision was confined to the students who had gone to other States under 15% all-India quota. The ratio of the judgment in Dr. Parag Gupta's case (supra) came to be reiterated in Abhinav Aggarwal and Anr. v. Union of India and Ors. [(2001) 3 SCC 425]. In Dr. Prachi Almeida v. Dean, Goa Medical College and Ors., a problem was faced by a student from Delhi who was admitted into Goa Medical College under the 15% all-India quota. She was denied admission in Goa on the ground that she was not resident of the said State. She, however, was married in Goa. This Court followed Dr. Pradeep Jain's case (supra) and directed that the student cannot be denied admissio....

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....eiterated by us today..." We may, however, notice that this Court in K. Duraisamy and Anr. v. State of Tamil Nadu and Ors. upheld the sources for admission by giving preference to the doctors working in the hospitals in the Post Graduate Courses on the ground that the same constitutes a valid classification. The discussions on this topic would remain incomplete if we fail to notice a recent decision of this Court in All India Institute of Medical Sciences Students' Union (supra) rendered by one of us, Hon'ble Lahoti, J. wherein this Court, keeping in view the peculiar situation obtaining in the case of AIMS, held institutional reservation to be unconstitutional. It, however, keeping in view the necessity of giving institutional preference to students who had studied from AIIMS, directed that such preference be given to the extent of 25% of students instead of 33%. However, keeping in view the fact that there were 40 seats in MBBS Course whereas 132 seats in Post Graduate Courses, the institutional preference to be given to the students of AIIMS came to about 82.5%. In this context it is relevant to examine the relevance of an entry in the State List or Concurrent List. ....

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....le 14 of the Constitution of India. We think not. Article 14, it will bear repetition to state, forbids class legislation but does not forbid reasonable classification, which means - (1) must be based on reasonable and intelligible differentia; and (2) such differentia must be on rational basis. Hence, we may also notice the argument, whether institutional reservation fulfils the aforementioned criteria or not must be judged on the following :- 1. There is a presumption of constitutionality; 2. The burden of proof is upon the writ petitioners as they have questioned the constitutionality of the provisions; 3. There is a presumption as regard the State's power on extent of its legislative competence; 4. Hardship of few cannot be the basis for determining the validity of any statute. The court while adjudicating upon the constitutionality of the provisions of the statute may notice all relevant facts whether existing or conceived. This Court may therefore notice the following : (i) The State runs the Universities. (ii) It has to spend a lot of money in imparting medical education to the students of the State. (iii) Those who get admission in Post Graduate Courses are al....

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....vation by way of institutional preference must be held to be not offending Article 14 of the Constitution of India. However, the test to uphold the validity of a statute on equality must be judged on the touch-stone of reasonableness. It was noticed in Dr. Pradeep's Jain's case (supra) that reservation to the extent of 50% was held to be reasonable. Although subsequently in Dr. Dinesh Kumar's case (supra) it was reduced to 25% of the total seats. The said percentage of reservation was fixed keeping in view the situation as then existing. The situation has now changed to a great extent. Twenty years have passed. The country has during this time have produced a large number of Post Graduate doctors. Our Constitution is organic in nature. Being a living organ, it is ongoing and with the passage of time, law must change. Horizons of constitutional law arc expanding. Having regard to the facts and circumstances of the case, we are of the opinion that the original scheme as framed in Dr. Pradeep Jain's case (supra) should be reiterated in preference to Dr. Dinesh Kumar's case (supra). Reservation by way of institutional preference, therefore, should be confined to 5....

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....xtent. Genius hidden in the citizens must be allowed to blossom. Despite 55 years of India's existence as an independent nation, a National policy on higher education has not come into being. Its significance and importance was highlighted in Dr. Pradeep Jain's case (supra); but the Parliament did not pay any heed thereto. The courts are normally reluctant to issue any direction to the Central Government for making law. Following our practice, we refrain ourselves to issue any direction in this regard. We hope and trust that the Central Government expeditiously consider of making legislation or taking such steps as are necessary in this behalf keeping in view the requirement of coordination in higher education in terms of Entry 66, List I of the Seventh Schedule of the Constitution of India. For the aforesaid reasons, we do not find any merit in the contentions advanced on behalf of the petitioners. The petitioners are not entitled to any relief. With the aforesaid directions, these writ petitions and the appeal are disposed of. There shall be no order as to costs. S.B. Sinha, J. I have had the advantage of reading the draft opinion of Hon'ble the Chief Justice of ....

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....erefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty." Recently a question came up before the US Supreme Court in Jennifer Gratz and Patrick Hamacher v. Lee Bollinger decided on 23rd June, 2003 likely to be reported in (2003) 539 U.S. wherein the guidelines providing for selection method under which every applicant from an under represented racial or ethnic minority groups was to be automatically awarded 20 points out of 100 points needed to guarantee admission, was struck down as has been violative of equality protection clause. It was observed: "The very nature of a college's permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants' chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in association some stated value to a relevant characteristic, whether it be reasoning ability, writing....

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....tional reservation, we have taken into consideration the effect of equality clause contained in Article 14 and 15 of the Constitution of India. The question as regard merit of the students vis-a-vis right of development and human rights angle had been considered at some length in Islamic Academy of Education and Anr. v. State of Karnataka and Ors. [JT 2003 (7) SC 1] and following Pradeep Jain v. Union of India it has been held: For the purpose of achieving excellence in a professional institution, merit indisputably should be a relevant criterion. Merit, as has been noticed in the judgment may be determined in various ways (Para 59). There cannot be, however, any fool-proof method whereby and whereunder the merit of a student for all times to come may be judged. Only, however, because a student may fare differently in a different situation and at different point of time by itself cannot be a ground to adopt different standards for judging his merit at different points of time. Merit for any purpose and in particular for the purpose of admission in a professional college should be judged as far as possible on the basis of same or similar examination. In other words, inter se merit....

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....pes of better economic security and partly by a desire to attain greater upward social mobility. Then begins their trauma due to many prevailing unfair practices in admissions and devious ways of fee collections exploiting the anxiety of students and uncertainty of procedures. Most of the efforts to deal with these problems are ad-hoc in nature often decided under judicial orders. Different State and Central authorities take many different actions often leading to severe inconsistencies. There is substantial scope for streamlining the admission process, even within the regulatory powers of the authorities, provided these issues are not dealt with on an emergency basis during the admission season but done in a coordinated and comprehensive manner ahead of time. ISSUE NUMBER ONE: ENTRY QUALIFICATION: For admissions to under-graduate programmes, there are several different eligibility norms among the different categories of institutions and among the various States. Some are based on Twelfth Standard marks or grades only, some are based on the Entrance Examination only, and some are determined by a combination of these with different weightages. There is endless number of justific....

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....the college publications and any fee collected without a formal receipt should be punishable offences. This rule should be strictly enforced. ISSUE NUMBER FOUR: CERTIFICATES HASSLES: When we consider the size of our country and the large number of institutions and huge volume of applicants, the man hour and money lost in running around for getting the certificates during the admission season must run into equivalent of several crores of rupees. A more hassle-free system for authenticating the required information from students should be evolved. OPTIONS: Every student be provided with a basic identity certificate while he/she is in the higher secondary stage (10th to 12th std). This should provide all essential information such as date of birth, community, domicile, photo identity etc., authenticated by a designated official. This should be acceptable for admission requirements in any institution and in any State in India. Superspeciality Institutions and Institutions where highly skilled Training/Education is imparted: On the issue whether there can be Article 15(4) reservations in super-speciality courses, this Court was categorical when it declared that there could not be....

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....ing has veered around the dominant idea of national interest with its limiting effect on the constitutional prescription of reservations. The result is that in the case of these institutions the scope for reservations is minimal. 2) As regards the feasibility of constitutional reservations at the level of super-specialities, the position is that the judiciary has adopted the dominant norm, i.e., "the higher the level of the speciality the lesser the role of reservation". At the level of super-specialities the rule of "equal chance for equal marks" dominates. This view equally applies to all super-speciality institutions. 3) As regards the scope of reservation of seats in educational institutions affiliated and recognised by State Universities, the constitutional prescription of reservation of 50% of the available seats has to be respected and enforced. 4 ) The institutional preference should be limited to 50% and the rest being left for open competition based purely on merits on an All India basis. 5) As regards private non-minority educational institutions distinction between government aided and unaided institutions. While government/State can prescribe guidelines as to the p....