SUPREME COURT ON RESERVATIONS

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 4500 of 2002 

   1  2 FACULTY ASSOCIATION OF AIIMS     … APPELLANT

                 VS.

   2 UNION OF INDIA & ORS.                 … RESPONDENTS 

                                    WITH

                       CIVIL APPEAL NO. 5119 OF 2002

                                                               J U D G M E N T

   ALTAMAS KABIR, CJI.

   1.    When Special Leave Petition (Civil) No. 2106 of 2002, filed by the Faculty Association of AIIMS, was taken  up  for  consideration,  notice thereupon was issued by a Bench of Two-Judges and it was stipulated that    any appointment to be made, after the order  was  passed  in  accordance  with the reservation policy, would only be  tentative  in  nature  until

   further orders.  When the Appeal  was  taken  up  for  hearing  on  20th February, 2003, along with Civil Appeal No. 5119  of  2002,  considering the important nature of the issues involved  for  determination  in  the said cases, as also the recurring nature of the problem, it was  thought appropriate that the matters be heard by a larger Bench.  Thereafter, on 12th February, 2004, a Bench of Three-Judges headed by the Chief Justice was of the view that the matters involved substantial questions  of  law as to the interpretation of the Constitution and  were  required  to  be    heard by a Bench of Five-Judges.  It is pursuant to such direction  that    the matter appeared before the Bench of Five-Judges on several occasions and ultimately they were listed before a Bench  of  Five-Judges  on  2nd July, 2013. 

   2.   Although the matter is now before a Bench of five Judges, the terms of reference are not very clear.  From what we have been able to  gather from the pleadings and the judgment of the Division Bench  of  the  High Court,  the  question  to  be  considered  is  whether  reservation  was inapplicable to specialty and super-specialty faculty posts in  the  All India Institute of Medical Sciences, hereinafter referred to as “AIIMS”.

    Faced with the decisions of this Court in the case of Indra Sawhney Vs.Union of India & Ors. [(1992) Supp. (3) SCC 215]; Jagdish Saran  &  Ors. Vs. Union of India & Ors. [(1980) 2 SCR 831]; and Dr. Pradeep Jain  etc. Vs. Union of India & Ors. etc. [(1984) 3 SCR 942],  wherein  reservation in admission to specialty and super-specialty  courses  was  disallowed, the Division Bench of the High Court  confined  itself  to  the  limited issue, namely, whether reservation policy was  inapplicable  for  making    appointments to the entry level faculty post of Assistant Professor  and to super specialty posts and also whether  the  resolutions  adopted  by AIIMS on 11.1.1983 and 27.5.1994 were liable to be struck down.

   3.    Appearing  for  the Petitioner,  Mr.  P.P. Rao, learned  Senior Advocate, firstly referred to the statement of objects  and  reasons  of the All India Institute of Medical Sciences Act, 1956, which provides as follows :

      “For improving professional competence among medical practitioners, it is necessary to place a high standard of medical education, both post- graduate and under-graduate, before all  medical  colleges  and  other allied institutions in the country.  Similarly, for the  promotion  of medical research it is necessary that the country should attain  self-sufficiency in post-graduate medical education.  These objectives  are hardly capable of realisation unless facilities of a very  high  order for both undergraduate  and  post-graduate  medical  education and       research are provided by a central authority in one place. The Bill       seeks to achieve these ends by the establishment in New  Delhi  of  an institution under the name  of  the  All-India  Institute  of  Medical Sciences.  The Institute will develop patterns of teaching  in  under-graduate and post-graduate medical education in all its branches so as to demonstrate a high standard of medical  education  to  all  medical colleges and other allied institutions, will provide facilities  of  a high order for training of personnel  in  all  important  branches of health activities and also for  medical  research  in  its  various aspects.  The Institute will have the power to grant medical  degrees, diplomas and other academic distinctions  which  would  be  recognised medical degrees for the purpose of the  Indian  Medical  Council  Act, 1933.” 

   4.   Mr. Rao also referred to Section 5 of the Act which  declared  the institute to be an institution of national importance.  As  pointed  out by Mr. Rao, Section 13 of the Act is in line with the objects for  which the institute was created and Section 14 deals with the functions of the institute relating to the academic aspects of the institutes's functions as a teaching institute.

   5.   Mr. Rao submitted that the question had earlier been gone into  and considered in Indra Sawhney's  case (supra), wherein  while  considering the question of reservation the Bench also took into consideration the provisions of Article 335 of the Constitution regarding the claims of Scheduled Castes and Scheduled Tribes to services and posts.   Referring to the concurring Judgment of Jeevan Reddy, J., learned counsel referred to Paragraphs 838 and 839   in  particular  and  the  observations  made therein.  Since Paragraph 838 places in focus the view of the Nine-Judge    Bench, the same is extracted hereinbelow: 

“838. While on Article 335, we are of the opinion that  there  are certain services and positions where either on account of the  nature of duties attached to them or the level (in the hierarchy)  at  which they obtain, merit as explained hereinabove, alone counts. In  such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/ institutions, in specialities  and  super-specialities in medicine,  engineering  and  other  such  courses  in physical sciences and mathematics, in defence  services  and  in  the establishments connected therewith.  Similarly, in the case of  posts at the higher echelons e.g., Professors  (in  Education),  Pilots  in Indian Airlines and Air India, Scientists and Technicians in  nuclear and  space  application,  provision  for reservation  would  not  be advisable.” 

   6.   In fact, both in Paragraphs 838 and 839,  while  specifying  areas, where it may not be advisable to put reservation, the learned Judge  has included posts in research and  development organisations/departments/institutions, in specialties and super-specialties  in medicine. The same observation is repeated in Paragraph 839, wherein, categorically it  was held that the Bench was of the opinion that in certain services  and in respect of certain posts, application of the rule of reservation  may not be advisable and once again included as the fourth item – posts  in   super-specialties in medicine,  engineering  and  other  scientific  and technical subjects.  Mr. Rao  submitted  that  as  far  as  medicine  is concerned “super-specialty” means “post doctoral courses”. 

   7.   Mr. Rao submitted that in the instant case, reservation  was  being provided for up to the doctoral stage, but at the stage  of  recruitment for a post doctoral  courses  and  research  at  the  initial  stage  of candidates were required to sit for a written examination and those  who are successful, were, thereafter, recruited in the different disciplines of teaching.  Mr. Rao submitted that the problem begins  at  that  stage when posts are thereafter, reserved in  respect  of  different  courses. Mr. Rao submitted that once a candidate qualified for recruitment in the    different  posts  of  faculty  beginning  from  the  post  of  Assistant Professor onward, there was no further  logic  in  thereafter  reserving posts for candidates from the Scheduled Castes and Scheduled Tribes  and OBC communities.  Mr.  Rao  submitted  that  at  that  level  of  super-specialty, the question  of  reservation  ought  not  to  arise  as  was observed by the Nine-Judge Bench in Indra Sawhney's case (supra). 

   8.   Mr. Rao submitted that while Article 16(4) empowers  the  State  in making provisions for reservation of appointments or posts in favour  of any backward class of citizens which, in the opinion of the  State,  was not adequately represented in the services under  the  State,  the  same would have to be read and understood in the manner  indicated  in  Indra Sawhney's case (supra).   The  learned  Senior  counsel  submitted  that    although definite directions have not been given in Paragraphs  838  and 839 of the judgment in Indra Sawhney's case  (supra),  the  observations made therein were guidelines for the Government and  institutions,  such as AIIMS, to follow, in order to provide the best  candidates  available with the opportunity of going  in  for  super-specialties  which  entail higher degree of skill and where no compromise in quality and  expertise could be entertained. 

   9.   In support of his aforesaid submissions, Mr. Rao also  referred  to  the decision of a Three-Judge Bench in Dr. Jagadish  Saran  &  Ors. Vs. Union of India [(1980) 2 SCC 768], wherein in Paragraphs 21, 22 and  23, Krishna Iyer, J., writing the judgment, spoke about reservation and what he referred as wholesale  banishment  of  proven  ability  to  open  up, hopefully, some dalit talent, total sacrifice of excellence at the altar of equalisation – when the Constitution mandates for every one  equality before and equal protection of the law – may be fatal  folly, self-defeating educational technology and anti-national if  made a routine rule of State  Policy.   His  Lordship  further observed  that a fair    preference, a reasonable reservation, a just  adjustment  of  the  prior needs and real potential of the weak with the partial recognition of the presence of competitive merit – such is the dynamics of  social  justice with animates the three egalitarian articles of the  Constitution. The learned Judge goes on to observe in Paragraph 23 that flowing  from  the same stream of equalism is another limitation.  The basic medical  needs of a region or the preferential push justified for a  handicapped  group cannot prevail in the same measure at the highest scales of specialty    where the  best  skill  or  talent,  must  be  handpicked  by  selecting according to capability.The learned Judge  went  on  to  restrict  the Indian Medical Council's recommendations which indicated  that  students of post-graduate courses therein should be selected strictly  on  merit, judged on the basis of academic record in the undergraduate course.

   10.  The next decision referred to by Mr. Rao is a short judgment in the    case of Dr. Fazal Ghafoor Vs. Union of India & Ors.  [(1988)  Supp.  SCC 794], which was a decision by two Judges, wherein, reliance  was  placed on the decision of this Court in the case of Dr. Pradeep Jain & Ors. Vs. Union of India & Ors. [(1984) 3 SCC 654], wherein, a  Three-Judge  Bench of this Court, while considering the  question  of  reservation in the    light of the aspirations of the citizens of India, as contained  in  the Preamble to  the  Constitution,  observed  that  while  reservation  was acceptable  with  regard  to the undergraduate   course,   different considerations will have to prevail when it  came  to  the  question  of reservation based on residents’  requirement  within  the  State  or  on institutional preference for admission  to  the  post-graduate  courses, such as MD, MS and the like.  Following the  decision in Dr. Jagadish Saran's case (supra), Their Lordship  observed  that  “there  we  cannot    allow excellence to be compromised by any  other  consideration  because that would  be  detrimental  to  the  interest  of  the  nation. Their Lordships also observed that if equality of opportunity for every  other person in the country is the constitutional guarantee, merit must be the test when choosing the best. 

   11.  Mr. Rao lastly referred to the Constitution Bench decision of  this Court in Dr. Preeti Srivastava Vs. State of M.P.  [(1999)  7  SCC  120], which was a writ petition heard along with several other writ  petitions on various aspects of reservation. Mr. Rao  pointed  out  that  the Constitution Bench also referred to the decision in Dr.  Pradeep  Jain’s case (supra) and also Dr. Jagadish Saran’s  case  (supra),  referred  to hereinbefore, in expressing its concurrence  with  the  views  expressed therein. In Paragraph 25  of  the  judgment,  Sujata  V.  Manohar,  J., speaking for the Constitution Bench, observed  that  the  specialty and    super-specialty courses in medicine also entailed on-hand experience  of treating or operating on patients in the  attached  teaching  hospitals. Those undergoing these programmes are expected to occupy  posts  in  the teaching hospitals or discharge duties  attached  to  such  posts. The elements of Article 335, therefore, colour the selection  of  candidates for these course and the rules framed for this  purpose. Consequently, in Paragraph 26, it was  further  observed  that  in  the  premises the special provisions for SC/ST candidates – whether reservations or lower   qualifying marks – at the specialty level have  to  be  minimal.   There cannot, however, be any such special provisions at the level  of  super-specialties. In keeping with its findings the  Constitution  Bench ultimately held that since no relaxation is permissible at  the  highest levels in the medical institutions, the Petitioners therein  were  right when they contended that the reservations made for the Scheduled  Castes and Scheduled Tribes candidates for admission to  DM  and  MCH  courses, which  are super-specialty courses, in not consistent with the constitutional  mandate  under  Articles  15(4)  and  16(4),  and   that    Regulation 27 of the Post Graduate Institute of  Medical Education  and Research, Chandigarh Regulations, 1967, would not apply at the levels of admissions to DM and MCH courses. 

   12.  Mr. Rao submitted that the Health Survey and development Committee, popularly known as the Bhore Committee, in its report published in  1946d recommended the establishment of a national  medical  centre  at  Delhi,d which  would  concentrate  on  training,  well-qualified  teachers and research workers in order  that  a  steady  stream  of  those  could  be maintained to meet the needs of the rapidly expanding health  activities throughout the country.  It seems that pursuant to the said report and after attainment of Independence, the Union Ministry of Health proceeded to implement the aforesaid idea resulting in the enactment  of  the  All India Institute of Medical  Sciences  Act,  1956,  with  the  All  India Institute of Medical Sciences as an autonomous institution  of  national importance and defined its  objectives  and  functions. Various  other decisions, including the decisions in Saurabh  Chaudri  and  Others  Vs. Union of India and Others [(2003) 11 SCC 146] and T.M.A. Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481] were referred to by Mr. Rao to urge that the observations made in Indra Sawhney's  case as well  as  in Preeti  Srivastava’s  case  were  binding,  though  in  the  nature   of observations made in the judgments.  Mr. Rao referred to the decision of this Court in Commissioner of Income  Tax,  Hyderabad-Deccan  Vs.  Vazir Sultan and Sons [1959 Supp (2) SCR 375], wherein a Bench of Three-Judges examined the doctrine of “obiter dicta” and arrived at  a  finding that even obiter at times has the force of law declared by the Supreme  Court    under Article 141 of the Constitution.  Mr. Rao ended on the  note  that the introduction of the concept of reservation in specialty  and  super-specialty subjects or for the appointment of  faculty  in  AIIMS,  would defeat the very purpose for which the institute  was  established.   Mr. Rao also submitted that if excellence was to be achieved at the level of super-specialty disciplines, no  compromise  could  be  made  in  either imparting such education or recruiting persons  who  would  impart  such  education at such level.

   13.  Dr. Rajiv Dhawan, learned Senior Advocate, who  appeared  in  Civil Appeal No. 5119 of 2002, submitted that the AIIMS Act  did  not  empower the Governing Body to impose reservation at any stage, much less at  the stage of super-specialty.  Referring  to  the  affidavit  filed  by  the Director of AIIMS, Dr. Dhawan submitted that the decision  of  the  High Court was contrary to the decision of this Court in Indra Sawhney's case and also in M. Nagaraj and Others Vs. Union of India and Others[(2006) 8 SCC 212] where it was held that there should be no reservation at the    super-specialty stage, and, in any event, the  same  would  have  to  be    based  on  quantifiable  data.   Mr.  Rao  submitted  that  proportional representation and not adequacy, as understood in Indra  Sawhney’s  case or even in M. Nagaraj’s case, has been resorted to in the  instant  case in the teeth of the said two  cases.   While  making  reference  to  the concept of creamy layer, Dr. Dhawan urged that “equality” does not  mean  that reservation had to be applied in each and every  case  to  maintain such equality, for example, the creamy layer concept as was   considered by this Court in E.V. Chinnaiah Vs. State of A.P. and Others  [(2005)1 SCC 394]. 

   14.  Appearing for the Institute, Mr. Mehmood Pracha,  learned  Advocate  contended that people from Backward classes and the Scheduled Castes and the Scheduled Tribes were often discriminated against and even in  spite of having excellent qualities, they were not  provided  with  sufficient opportunities to come up  to  the  standards,  as contemplated by the  various medical colleges and, in particular, the All India Institute of    Medical Sciences, which is an institution of national  importance.   Mr. Pracha urged that although reservation at all different  levels  of  the Institute had  been  introduced,  for  quite  some  time,  there  is  no available data to indicate that there has been any deterioration in  the quality of medical services being provided in AIIMS.  On the other hand, AIIMS was one of the most sought after medical institute, not  only for promotion and research  work,  but  also  for  the  purpose  of  medical education.  Taking a leaf out of Hindu mythology,  Mr.  Pracha  drew  an analogy from the story of Eklavya and Arjun in  the  Mahabharta. While

   Arjun belonged to the princely class, Eklavya  was  a  tribal  boy,  who without actual training  or  guidance  from  any  teacher,  by  his  own efforts, excelled in the art of archery.   The  famous  Dronacharya  was Arjun’s teacher in archery and Eklavya had acquired the skills  that  he had by merely watching Dronacharya guiding Arjun.  However, when it came to an archery competition, Dronacharya, who was  more  or  less  certain    that, if allowed an opportunity,  Eklavya  would  possibly  beat  Arjun, requested Eklavya that if he really loved and respected him,  he  should give his right thumb as gurudakshina to his master.   Eklavya  dutifully obeyed the person he had chosen as his master  and  was  thus  prevented from competing in the competition which Arjun won.  Mr. Pracha submitted that simply  because  Eklavya  was  a  tribal  boy  he  was  denied  the opportunity  of  competing  with  Arjun,  despite  his  brilliance and   excellence.  Mr. Pracha submitted that there are many more Eklavyas  in today’s society, who, if  not  suppressed  and  given  a  chance,  would possibly even  outshine  those  belonging  to  the  higher  echelons  of Society.

   15.  Mr. Pracha strongly supported the concept  of  reservation  at  all  stages, including at the super-specialty stage.  He urged  that  at  the entry level for recruitment to the faculty posts, which were all treated as super-specialty disciplines after the Post Graduate course, a  member of the Backward Classes had  to  sit  for  an  examination  with  others without any separate weightage given for reservation.  It is only  after having passed the written examination along with other candidates, was a member of the Backward Classes appointed in a teaching post on the basis    of reservation.  Mr. Pracha submitted that this was done only with  the intention of giving such a candidate an opportunity of  reaching  the level of his other fellow faculty members.  Mr. Pracha submitted that  a little support was intended to help people from the Backward communities to make their presence felt in  academia,  so  as  to  encourage  others similarly situated.  Mr. Pracha also relied  on  the  decision  of  this Court in Indra Sawhney’s case, in support of his contention that members  of the Scheduled Castes and Scheduled Tribes and Other Backward  Classes were not adequately represented and  for  the  said  purpose  a  certain amount of reservation was necessary so  that  they  could  compete  with others and excel in academics.  Strongly supporting the  policy  adopted by the Institute, Mr. Pracha submitted that the Civil  Appeal  filed  by the Faculty of Association of AIIMS was liable to be dismissed.

   16.  Appearing for the Union of India,  the  learned  Solicitor  General repeated the submissions made by Mr. Pracha and added that the State had a constitutional duty to empower certain sections of society who  needed help to uplift themselves from their  particular situations.  The learned Solicitor General submitted that Article 46 of the Constitution,  though a Directive Principle, was  in  the  nature  of  a  guideline  for  good governance to the Government of the day.  The said Article was  intended to help the depressed classes, who otherwise had little opportunity of raising their standards.  Faced with the question as to  when  initially    the Central Government had opposed the doctrine of  reservation  on  the ground of excellence in education, why was it necessary in 1972 to  take a different stand and come out in support of reservation, even in super-specialty courses, the learned Solicitor General urged that  the  policy was based not  on  the  question  of  adequacy,  but  as  a  measure  of empowerment for the Backward Classes.  While referring to  the  decision in M. Nagaraj’s case, which has been referred to by  the  other learned   counsel,  the  learned  Solicitor  General  contended  that    with   the introduction of Article 16(4A) in the Constitution, the decision arrived at in M. Nagaraj’s  case,  would  have  to  be  read  differently.   He, however, also urged that there  was  no  constitutional  prohibition  to impose reservation, if it was felt necessary  to  benefit  the  Backward Classes, who had little or no support to help them  improve  their  lot. Referring to the decisions of this Court in Dr.  Jagadish  Saran's  case and Dr. Pradeep Jain’s case, which have been  referred  to  hereinabove,

the learned Solicitor General urged that  the  direction  given  in  Dr.Pradeep Jain’s case that reservation should not exceed 70%, did not take into consideration Article 16(4A) of the Constitution, while giving such directions.

   17.  Although, the matter has been argued at some length, the main issue raised regarding reservation at the super-specialty  level  has  already been considered in Indra Sawhney’s case (supra) by a Nine-Judge Bench of this Court. Having regard to such decision, we are not inclined to  take any view other than the view expressed by the Nine-Judge  Bench  on  the  issue.  Apart from the decisions rendered by this Court in Dr.  Jagadish Saran's case (supra) and Dr. Pradeep Jain’s case (supra), the issue also fell for considerate in Preeti Srivastava’s case (supra) which was  also    decided by a Bench of Five Judges.  While in Dr. Jagadish  Saran's  case (supra) and in Dr. Pradeep Jain’s case (supra) it was  categorically held that there could be no compromise with  merit  at  the  super  specialty stage, the same sentiments were also  expressed  in  Preeti  Srivastava’s case  (supra)  as  well.  In  Preeti  Srivastava’s  case  (supra),   the Constitution Bench had an occasion to consider Regulation 27 of the Post Graduate  Institute  of  Medical  Education  and  Research, Chandigarh    Regulations, 1967, whereby 20% of seats in every course of study in  the Institute was to be reserved for candidates belonging to  the  Scheduled Castes, Scheduled Tribes or other categories of persons,  in  accordance with the general rules of the Central Government promulgated  from  time to time.  The Constitution Bench came to the conclusion that  Regulation 27 could not  have  any  application  at  the  highest  level  of  super specialty as this would defeat the very object  of  imparting  the  best possible  training  to  selected  meritorious  candidates,   who   could

contribute to the advancement of  knowledge  in  the  field  of  medical research and its applications.   Their Lordships ultimately went  on  to hold that there could not be any type  of  relaxation  at  the  super specialty level.

   18.  In paragraph 836 of the judgment in Indra Sawhney’s  case  (supra), it was observed that while the relevance and significance  of  merit  at the stage of initial recruitment cannot be ignored, it  cannot  also  be ignored that the same idea of reservation implies selection  of  a  less meritorious person. It was also observed that at the same  time  such  a price would have to be paid if  the  constitutional  promise  of  social justice was to be redeemed.  However, after making such  suggestions, a note of caution was introduced in the very next paragraph in the light of Article 15 of the Constitution.  A  distinction  was,  however,  made with regard to the provisions of Article 16 and it was held that Article 335 would be relevant and it would not be permissible not  to  prescribe any minimum standard at all.  Of course, the said observation  was  made in the context of admission to medical colleges and reference  was  also made to the decision in State of M.P. Vs. Nivedita Jain  [(1981) 4 SCC 296], where admission to medical courses was regulated  by  an  entrance test. It was  held  that  in  the  matter  of  appointment  of  medical officers, the Government or the Public Service Commission would not be    entitled to say that there would not be  minimum  qualifying  marks  for Scheduled Castes/Scheduled Tribes candidates while prescribing a minimum for others. In the very next  paragraph,  the  Nine-Judge  Bench  while discussing the provisions of Article 335 also observed that  there  were certain services and posts where either on  account  of  the  nature  of duties attached to them or the level in  the  hierarchy  at  which  they stood, merit alone counts.  In such situations, it cannot be advised to provide for reservations.  In the paragraph following, the position  was    made even more clear when Their Lordships observed that they were of the opinion  that  in  certain  services  in  respect  of   certain   posts, application of rule of reservation may not be  advisable  in  regard  to various technical posts including posts in super specialty in  medicine, engineering and other scientific and technical posts.

   19.  We cannot take a different view, even though it has been  suggested that such an observation was not binding, being obiter in  nature. We cannot ascribe to such a view since  the  very  concept  of  reservation implies mediocrity and  we  will  have  to  take  note  of  the  caution indicated  in  Indra  Sawhney's  case.   While  reiterating  the   views expressed by the Nine-Judge Bench in Indra Sawhney’s case, we dispose of the two Civil Appeals in the light of the said views,  which  were  also expressed in Dr. Jagadish Saran's case, Dr.  Pradeep Jain's case, Dr. Preeti Srivastava's  case.   We  impress  upon  the  Central  and  State Governments to take appropriate  steps  in  accordance  with  the  views expressed in Indra Sawhney's case and in this case, as  also  the  other  decisions referred to above, keeping in mind the provisions  of  Article 335 of the Constitution. 

   20.  There will be no order as to costs.

                      (ALTAMAS KABIR)……………….………CJI.

       (SURINDER SINGH NIJJAR)………………J. 

       (RANJAN GOGOI)……………………………J.

       (M.Y. EQBAL)……………..…………………J. 

       (VIKRAMAJIT SEN)…….…..………………J.                                

   New Delhi

   Dated: July 18, 2013.