1. the petitioner, who was one of the applicants for admission to the Government Medical College in Nagpur, challenges the validity of sub-cls. (b) and (d) of Cl. A of Rule 5 of the Rules made by the regulating admission to the Government (respondent No. 3) for regulating admission to the Government Medical Colleges for the year 1983-84 (hereinafter referred to as 'the Rules'). The portion of the rule which is relevant for our purpose is in the following terms:--
'5 Reservation of Seats
A. Reservation of Backward Classes -
(a) The percentage of seats reserved at each college will be as follows:--
Serial Category Percentage of No. seats reserved 1. Scheduled castes and Scheduled castes converts to Buddhism .... 132. Scheduled Tribes including those living outside Specified areas ... 73. Denotified Tribes and Nomadic Tribes ... ... ... ... ... ... ... ... ... 4. Other Backward Communities ... ... ... ... ... ... ... ... ... ... ... .. Total ... ... ... ... ... ... ... ... ... ... ... ... 34 (b) The 24 per cent seats reserved for students belonging to the three categories backward classes : (i) Scheduled castes and Scheduled castes converts to Buddhism (ii) Scheduled Tribes including those living outside specified areas, and (iii) Denotified and Nomadic Tribes, should be exclusive of the number of students belonging to these three categories who secure admission on merit provided that the total number of students of these three categories of backward classes who secured admission against the 24 per cent reserved quota and merit does not exceed 40 per cent of the total number of seats available for admission.
(c) x x x x x
(d) Students belonging to the backward classes mentioned in the uniform list of backward classes for the whole of Maharashtra under Government Resolution, Education and Social Welfare Department, No. EBC-2169/J, dated 10th July 1969, as amended from time to time will continue to enjoy the benefit of the 10 per cent reservation of seats for them.
It is clarified for the information of all that 10 per cent is not an overall ceiling for the O.B.C. candidates. It is open to the O.B.C. candidates to secure more than 10 percent seats on the basis of merit. However, if the admissions they secure on merit are less than 10 per cent there should be reservation for them to the extent of the shortfall below 10 per cent.'
The petitioner belongs to one of the Other Backward Communities for which 10 per cent of the total seats have been reserved. He asserts that if this percentage is not reduced by applying the provision contained in the concluding portion of the sub-cl. (d), he stands fairly good chances of being admitted in one of the Medical Colleges on Nagpur. In sum and substance, his contention id that candidates from the Other Backward Communities who are admitted on their own merit should be taken against the quota for the open category without affecting the seats which are reserved for the Backward Communities and the seats which are reserved should be filled in irrespective of the number of candidates who have been admitted on their own merit. In other words, he submits that the admission of the candidates belonging to these communities should be in two separate groups, one group consisting of candidates who secure admission on their own merit in the open category and the other group consisting of candidates admitted against the quota reserved for these communities and the former should not be included in the latter. It is urged that the concluding portion of sub-cl. (d) of Cl. A of R. 5 impinges on the right of the backward class for which certain percentage of seats are reserved and if candidates belonging to this class can get themselves admitted on their own merit, that would be by virtue of the constitutional right guaranteed to them under Cl. (2) of Art. 29 of the Constitution and such seats cannot be off set against the seats which are reserved for such community by virtue of the power exercised by the Government under cl.(4) of Art. 15 of the Constitution. It is this submission which falls for consideration on this case.
2. At the outset, we may state that in this case we are not called upon to pronounce on the validity or otherwise of sub-cl. (b) of Cl. A of R.5 inasmuch as the petitioner admittedly belongs to the category of Other Backward Communities for which 10 per cent seats are reserved. He would not be affected in any way even if sub-cl.(b) is pronounced to be valid or invalid. His case is governed by sub-cl. (d) and it is validity of this clause alone which needs our attention. It is for this reason that we refrain from giving our opinion in so far as the validity of sub-cl. (b) of Cl. A of R. 5 is concerned.
3. Mr. A. M. Gordey, the learned counsel for the petitioner, submitted that under cl. A of R. 5, 10 per cent of the seats have been reserved and they are assured for the Other Backward Communities. According to him, these reserved seats must go to the candidates belonging to the Other Backward Communities, irrespective of the number of marks they secured at the qualifying examination. In other words, according to him, the reserved seats must be filled in by admitting suitable candidates irrespective of the fact whether they fair well in open merit. He submitted that if the concluding portion of sub-cl.(d) is to be given effect to, it will reduce the number of seats which are reserved for those candidates who belong to the Other Backward Communities and who cannot compete on merit in the general pool. In support of his submission, he relies on the decision of a learned single Judge of the Kerala High Court in R. Jacob Mathew v. State of Kerala : AIR1964Ker39 and certain observations of the Supreme Court in State of Andhra Pradesh v. U.S.V. Balaram : 3SCR247 .
4. On the other hand, Mr. A. M. Tayade, the learned counsel for the respondents, supported the validity of sub-cl. (d) on the ground that while reserving certain seats for the Backward Classes by virtue of the power given under cl.(4) of Art. 15, a balance has to be maintained between the candidates belonging to the advanced classes and the reservations cannot be made in a way which would reduce the chances of the latter class to its detriment. He submits that it would be in the interest of the nation to maintain an equitable balance between the two competing interests namely those of the Backward Classes and those of the forward or advanced classes and it s precisely from this point of view that the provision contained in the concluding portion of sub-xl. (d) of Cl. A of R. 5 has been made. He submitted that the object and purpose of reserving seats for the Backward Classes or Communities is to assure and guarantee to them the minimum number of seats in professional colleges and if that number is available even from candidates admitted on open merit, the purpose is served and it would not be then necessary to enlist even those candidates who do not fair well in the open competition and have to be admitted under the reserved category. For the proposition which he has set out, he relies on the view taken by Division Bench of the Andhra Pradesh High Court in Puppala Sudarsan v. State of Andhra Pradesh AIR 1958 AP 569 and the decision of a Division Bench of Mysore High Court in S. A. Partha v. State of Mysore AIR 1961 Mys 220.
5. Clause (1) of Art. 15 of the Constitution provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Clause (3) thereof carves out an exception in favour of women and children. Clause (2) of Art. 29 lays down that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Reading cl. (2) of Art. 29 with cl. (1) of Art. 15, it would appear that admission to educational institutions of the categories stated on Art. 29(2) is guaranteed to all citizens and any discrimination on the ground of religion, race, caste, sex, language or any of them has been prohibited. It would, therefore, appear that it would not have been permissible for the State to deny admission into any educational institutions maintained by it or receiving aid from it to any citizen on the ground of religion, race, caste, sex or language. This was the position as it obtained when the Constitution was enacted. However, in view of the decision of the Supreme Court in the State of Madras v. Sm. Champakam Dorairajan : 2SCR525 , cl (4) was added to Art. 15 or in clause (2) of Art. 29 would prevent the State from making any special provision for the advancement of any socially and educationally Backward Classes of citizens or for Scheduled Castes and the Scheduled Tribes. It will, therefore, appear that cl. (4) of Art. 15, which, as has been said above, has been added by the Constitution (1st Amendment) Act, 1951 carves out an exception to the general provisions contained on cl. (1) of Art. 15 and cl. (2)of Art. 29. It is clear that what is enacted in cl. (4) of Art. 15 is merely an enabling provision and it does not confer any right, much less a fundamental right, in the socially and educationally backward classes of citizen or the members of the Scheduled Castes and the Scheduled Tribes. Clause (4) of Art. 15 can be read merely to hold that if the State intends to make any special provisions for the advancement of these classes, the fundamental rights guaranteed under cl. (1) of Art. 15 and cl. (2) of Art. 29 would not come in its way. In other worlds, if an impugned order is justified under cl. (4) of Art. 15, its validity cannot be assailed on the ground that it violates cl. (1) of Art. 15 or cl. (2).of Art. 29. Hence cl. (4) of Art. 15 would have to be read to this limited extent and it cannot be read to extend any right whatsoever in favour of the classes specified therein.
6. The portion of sub-cl. (d) of Cl. A of R.5 which, according to the petitioner is offending, is the last sentence which runs as follows :
'However, if the admissions they secure on merit are less than 10 per cent there should be reservation for them to the extent of the shortfall below 10 per cent.'
What has been argued on behalf of the petitioner is that if the admissions secured by candidates belonging to the backward classes on the basis of their own merit are included in the 10 per cent seats reserved for them, the number of seats reserved for the candidates belonging to such classes would be correspondingly reduced and, according to the learned counsel for the petitioner, this would, offend cl. (4) of Art. 15 of the Constitution as it would eat away substantial portion of the seats which are guaranteed to these classes under the reservation. There is obviously fallacy in this submission. As said above, cl. (4) of Art. 15 does not confer any right, much less a fundamental right, in the classes, castes or tribes specified in that clause to nave seats reserved for them in services or educational institutions. But, as said above, it is only an enabling provision. It does not make it obligatory on the State to make special provision for the advancement of the backward classes but merely leaves it to its necessary. No right as such can be carved out on the basis of cl. (4) of Art. 15. It would, therefore, be fallacious to say that what is provided in the above said portion of sub-cl. (d) of Cl. A of R.5 violates any right guaranteed to the backward classes.
7. The purpose of reservation in favour of the castes, tribes and communities specified in sub-cl. (a) of Cl. A of R. 5 is to guarantee to them minimum number of seats out of the total seats in the Medical Colleges run by the State Government. In other words, this special provision has been made to meet the anxiety on the part of the State to see that students belonging to these socially and educationally backward classes do secure a minimum number of seats in the Medical Colleges and their admission is not hampered for the simple reason that they do not compete well with the advanced classes. The purpose behind this reservation obviously is not to guarantee a minimum number of seats over and above the seats which such students may secure in open merit. If the said provision is interpreted as sought to be done by the learned counsel for the petitioner, it would mean that those students belonging to these classes who secure admission on the basis of their own merit and belong to the backward classes should be completely ignored while admitting candidates for the reserved seats. This would mean that over and above such candidates being admitted on their own merit, more candidates to the extent of the reserved seats should also be admitted, thus enlarging the number of candidates belonging to such classes above that reserved for them. Here we may note that in so far as the category of other backward communities is concerned, no overall ceiling has been prescribed unlike in the case of candidates belonging to Scheduled Castes, Scheduled Tribes and Denotified and Nomadic Tribes. It would be open to the candidates belonging to the Other Backward Communities unlike the other backward classes to capture as many seats as they can on the basis of their merit since there is no overall ceiling for them. Now if this is so and if the minimum number of seats guaranteed under the reservation are filled in by candidates competing in open merit, the purpose of the reservation would serve itself and in that case it would not be necessary to further admit candidates from these classes against the reserved seats. In our view, on the other hand, if this was to be done, it would offend cl. (2) of Art. 29 of the Constitution, since this would encroach on the fundamental rights of admission guaranteed under that article, in so far as the candidates belonging to advanced classes are concerned.
8. We are supported in the view which we take by the decision of the Division Benches of the Andhra Pradesh and Mysore High Courts in Puppala AIR 1958 AP 569 and Partha's AIR 1961 Mys 220 cases (cited supra). A more or less similar question fell for consideration in those cases. It was urged in Puppula's case that the selection of candidates belonging to backward classes should be in two compartments, one for the quota allotted to the backward classes and the other for general pool and, therefore, candidates belonging to backward classes who succeed in a competition held for the selection in the reserved field. In rejecting this contention, the Division Bench held as follows :
'(12) XXXXXXXX the fundamental right of a citizen whether he belongs to a backward community or not is to secure admission in any educational institution maintained by the State without his being discriminated on grounds only of religion, race, caste, or any of them. The state may abridge this right by making a provision for educationally backward class of citizens.
Presumably in exercise of that power, the State directed that maximum of 15 per cent of the seats in each faculty should be reserved for candidates from backward classes by their merit secure more than 15 per cent of the seats in the general competition, this rule cannot be invoked to reject the boys above the prescribed number; for, in that event their fundamental right under Art. 29(2) would be violated.
On the other hand, if the selection is made in two different compartments in such a way that some boys belonging to the backward classes are allowed to compete for the general pool and some for the reserved seats, it would cause great hardship to the boys belonging to other communities.
This could be achieved by pooling all the candidates together and guaranteeing minimum seats for those belonging to the backward classes. To illustrate: If there are 100 applicants for selection to the Medical College, they would be arranged in the order of merit and even id more than 15 per cent of the candidates belonging to the backward classes could be selected on merit alone, they would be so selected.
If they fall short of that number, they would be selected to make up their number on the basis of merit inter se between them, though they got less marks than boys belonging to other communities. This process will protect students of backward classes without doing any injustice to the forward ones.'
Discounting the argument in favour of selection in compartments, the Division Bench of Kerala High Court observed as follows in Parthas's case AIR 1961 Mys 220 of the report :
'(65). xxxxxxxxxxxxxxxxxx Hence, for a reservation of a certain number of percentage of seats to be constitutionally correct or appropriate, it should not be in the nature of compartmentalisation but in the course of a general competition among all categories of citizens.
(69). In view of the principles discussed above, the only manner in which the reservations in favour of Scheduled Castes and Scheduled Tribes and Other Backward Classes can be worked out without being attacked as unconstitutional is to treat the reservation made in respect of each one of those classes as one in the nature of a guaranteed minimum of seats in open competition. For this purpose, it is necessary to applicants irrespective of castes or categories in the order of merit. If within the limit of the number of persons to be selected in the said list in the order of merit, each one of the three categories of Scheduled Castes, Scheduled Tribes and Other Backward Classes secures the number of seats reserved for each one of them or a larger number, then nothing more need be done.
If, however, any one of those categories secures less number of seats than the minimum guaranteed to it within the said limit, then the deficiency must be made up by selecting in the order of merit from among the members of that category lower down in the list such number to the extent available as is necessary to make up the deficiency and at the sane time, deleting an equal number of persons belonging to the unreserved category counting from the bottom of that part of the list falling within the limit of the number to be selected.'
The impugned provision in our case is in line with the principle laid down and method suggested in the above said two cases.
9. It is true that a different view has been taken by the learned Single Judge of the Kerala High Court in Mathew's case : AIR1964Ker39 . There one of the contentions of the petitioners was that if a particular percentage of seats are reserved for a particular group and that group is able to get some seats on the basis of merit, the number of seats that can be given to that group under the reserved category must be proportionately reduced and they can get only such number out of the reserved seats as are required to make up the deficiency. It was urged that allowing candidates of the reserved group who are given protection under Art. 15(4) to compete also in the general category really amounts to giving them more number of seats than is justified under the reservation and to that extent it affects rights guaranteed to other candidates under Art. 29(2). It was however conceded that if the candidates belonging to the reserved category are able to get more number of seats on the basis of their merit than that reserved for them, they would be entitled to get all those seats, but in such a case no further allotment need be made to any member of that group under the reserved category. In short the method for selection propounded in that case is identical to the one incorporated in the second para of sub-cl. (d) Cl. A of R. 5, in the present case (see para 102 and 103 of the report). The learned Single Judge, after referring to the decision of the Andhra Pradesh High Court in Puppala Sudarsan's case AIR 1958 AP 569 and another decision of the Division Bench of the said High Court in V. Raghuramulu v. State of Andhra Pradesh AIR 1958 AP 129 and also the decision of the Mysore High Court n S. A. Partha's case AIR 1961 Mys 220 cited supra, rejected this contention on the part of the petitioners. With respect to decisions in Puppala Sudarsan and S.A. Partha's case, the learned Judge observed that they did not lay down any proposition of law as such to the effect that whenever some candidates coming in the reserved group have been able to get a few seats in the general pool, to that extent, there must be reduction effected in the percentage reserved for them as backward classes. The learned Judge held that 'the question more specially arose' in Reghuramula's case. He read that decision to mean that 'notwithstanding the fact that a class has been treated as Backward and given protection under Art. 15(4) by providing a particular percentage for that group, it does not take away the right of any number of that group, from competing on the general merit basis, and securing as many seats as possible'. In this background, the learned Judge proceeded to observe as follows in paras 107, 108 and 109 of the report :
'(107) xxxxxxxxxxxxxxxxxxxxx In my view, this decision clearly shows that, notwithstanding the fact that a class has been treated as Backward and given protection under Art. 15(4) by providing a particular percentage for that group, it does not take away the right of any number of that group, from competing on the general merit basis, and securing as many seats as possible. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.
(108) In my view, if the contentions of the learned counsel for the petitioners are accepted in this behalf, it will mean that the provisions of Art. 15(4), which are really intended for the advancement of the weaker sections of the citizens, are really invoked for the purpose of causing prejudice to the members of that class. That certainly is not the intention of the Constitution; nor do I find any support for that principle in the decision relied upon by the learned counsel for the petitioners. I have already referred to the extract from the decision of the Supreme Court in : 2SCR525 , to the effect that cl. (2) of Art. 29 guarantees the fundamental right of an individual citizen, and that the right to get admission into any educational institution of the kind mentioned in cl.(2) is a right which an individual citizen has as a citizen, and not as a member of any community of class of citizens.
(109) Therefore, the conclusion that in have arrived at regarding this aspect of the matter derives support from the observations of the Supreme Court referred to above. This classes the discussion on this aspect of the matter, and it follows that the contention of the learned counsel for the petitioners in this regard will have to be rejected.'
It is pertinent to note that the learned Single Judge observed that the right guaranteed under Art. 15(4) is for a particular class as such. With great respect to the learned Judge, he has read cl.(4) of Art. 15 as conferring a right in favour of the Backward Classes specified therein which, as we nave pointed out above, is not so. There is ample authority for the proposition that provision made in cl. (4) of Art. 15 is only by way of exception to the fundamental right guaranteed under cl.(1) of Art. 15 and cl. (2) of Art. 29 and that it is only an enabling provision. See M. R. Balaji v. State of Mysore, : AIR1963SC649 and State of Andhra Pradesh v. U.S.V. Balaram, : 3SCR247 . It is difficult to agree with the learned Judge that any right is guaranteed to the Backward Communities or Classes under that clause. The conclusion at which he has arrived flows from his reading of Art. 15(4) on this light. If, as we hold, Art. 15(4) does not confer any right, the conclusion to which the learned Single Judge has arrived, would, with great respect, be unsustainable in law. Apart from this, it appears that the learned Single Judge sought support for his proposition from certain observation made by the Division Bench of the Andhra Pradesh High Court in Raghuramulu's case AIR 1958 AP 129. Now that decision was cited before the Division Bench of the Andhra Pradesh High Court deciding Puppala Sudarsan's case AIR 1958 AP 569. One of the two Judges of this Division Bench, namely K. Subba Rao C.J., happened to be one of the two Judges constituting the Division Bench deciding Raghuramulu's case. From the observations made by the Division Bench in Puppala Sudarsan's case in para 11 of the report, it would appear that the question which arose for consideration in that case did not arise for consideration of the Division Bench in Raghuramulu's case. It is, therefore, clear that even according to the Division Bench of the Andhra Pradesh High Court. Raghuramulu's case AIR 1958 A P 129 cannot be taken to be an authority for the proposition which was being canvassed and upheld in Puppala Sudarsan's case AIR 1958 AP 569. With respect, therefore, the learned Single Judge of the Kerala High Court could not have drawn any support from Raghuramulu's case for the proposition which he laid down. Further the decision of the Supreme Court in State of Madras v. Sm. Champakam Dorairajan : 2SCR525 upon which reliance has been placed by the learned Judge, considered the effect of Art. 29(2) only. It did not have the occasion to consider that article in juxtaposition with cl. (4) of Art. 15 as that clause did not exist then and as has been said above was added to overcome that decision. In our opinion, this decision is of little assistance in deciding the question involved. We may repeat that the question is not whether a class for which reservation has been made in pursuance of power under Art. 15(4) is entitled to compete on general merit basis, thus securing as many seats as possible. There cannot be two opinions on this issue. The question is whether the quota of reserved seats could be reduced to the extent of seats captured by members of such class in open merit. This question has been squarely answered by the Division Benches of the Andhra Pradesh and Mysore High Courts in the cases referred above. It is not possible to agree with the learned Judge of Kerala High Court that these two cases do not lay down any such proposition of law. We are in respectful agreement with what has been said by the 'Andhra Pradesh High Court in Puppala Sudersan's case and by the Mysore High Court in S.A. Partha's case AIR 1961 Mys 220 which, according to us, lays down the correct law in this respect.
10. It will be of interest to note that in State of Andhra Pradesh v. U. S. V. Balaram : 3SCR247 (cited supra) the Supreme Court took not of the above said decisions of the Kerala and Andhra Pradesh High Courts (see para 100 of the report). However, it did not pronounce on the correctness of any of these two decisions.
11. In view of what we have said above, it is not possible to uphold the challenge to sub-cl. (d) of cl. A of R. 5 of the said Rules.
12. The result, therefore, is that the writ petition stands dismissed and the rule discharged without any order as to costs.
13. Petition dismissed.