Alladi Kuppuswami, J.
1. The main question that arises in these writ petitions is whether R. 2 (2) of the Rules for admission to Post- graduate courses in the Medical colleges of Andhra Pradesh State contained in G. O. Ms. 624 M & H D/- 26 th September 1979 (referred to in this judgment as the Rules) whereby 50% of the seats in certain subjects and 30% of the seats in all other subject are reserved for the in- Service candidates who are appointed to the Andhra Pradesh Medical Services violates Article 14 of the Constitution and is therefore illegal and void?
2... when two of the above writ petitions came up for hearing before a Division Bench of this court, reliance was placed by the State Government on the decision of a Division Bench of this Court in K. Ramakrishna v. Director of Medical service, : AIR1979AP223 where it was held that a similar rule in the earlier year was valid and not violative of Article 14 of the Constitution. As it was felt that this decision required re- consideration, these matters have been posted before the Full Bench. The division Bench which directed the cases to be posted before a Full Bench also observed that as the entire case was posted before the Full Bench, it would be open to the parties to urge all other points in support of their respective contentions.
3. Under the rules, the state is divided into three areas, namely (1) Osmania University and Kakatiya University, (1) Andhra University and Nagarjuna University; and (3) Sri Venkateswara University. Annexure-I to the rules gives the number of seats are divided into three areas. The seats are divided into four groups as follows:-
Group1: Non- clinical; Group 2: Medicine; Group 3: Surgery; Group 4: Obstetrics and Gynaecology.
A part from these four groups there are 9 courses of which 7 are state- wide courses. Of these, serial Nos. 4 to 9 are described as super- specialities.
4. Admissions to 85% of the seats are reserved in favour of local candidates as provided in the Andhra Pradesh Educational Institutions (Regulation of Admissions) order 1974
5. Rule 2 deals with special reservations. Under Rule 2 (1) (a) 14%, 4% and 25% of the total number of seats available both in degree and diploma courses shall be reserved for Scheduled castes, Scheduled Tribes and Backward classes respectively in the subjects specified in Rule 1 (a). In all, 43% of the seats are reserved for Scheduled Castes, Scheduled Tribes and Backward classes which are for convenience, referred to as 'weaker sections' in this judgement.
6. Rule 2 (1) (b) however states that no observation shall be followed in respect of state- wide courses and super- specialties. Rule 2 (2) is as follows:-
50% of the seats in the following subjects and 30% of the seats in all other subjects shall be reserved for the in service candidates who are appointed in Andhra Pradesh Medical Services. candidates selected in reserved quota and in open competition shall be counted for this purpose.
Anatomy; Physiology; Biochemistry; Pathology; Pharmacology; Microbiology; Forensic Medicine.
Social & preventive Medicine community:-
Medicine and public Health.
N. B. (I) * * *
(ii) Any fraction of 5 above shall be counted as one.
Rule 5 deals with eligibility and is as follow:
5 (a) 'Candidates who have passed M. B. B. S. Examination of one of the Universities of the State or any other University recognised as equivalent thereto and who would be competing their compulsory rotating internship by the date to be notified by the chairman of the Selection Committed every year before the Entrance test, are eligible to apply, subject to the fulfillment of the conditions Stipulated in Rule 3..
(b) Applicants who are already post- graduate degree holders in a subject or admitted and registered for a post graduate degree in a subject shall not be considered for selection for post- graduate degree in another subject.
(c) Applicants who are already post- graduate diploma holders in a subject shall not be considered for another post graduate diploma or degree in the subject available in another group
(d) Applicants who are already post- graduate diploma holders in a subject may be considered for the P. G. degree in subject available in the same group.
(e) Candidates undergoing diploma course shall not be eligible for applying to degree course in the same subject or other groups, till they actually appear for the examination after completion of the course.
7. Rule 7 provides that selection of the candidates for the seats notified in Annexure-I shall be by an entrance test.
8. Rule 8 states the selection committee constituted by the Government of Andhra Pradesh shall conduct entrance test.
9. Rule 10 (b) provides that the selection committee shall, after completion of valuation of entrance test papers cause a Master Merit list for various categories.
10. Rule 10 (3) provides for weightage of 3 marks to be added to the following categories: Provided however that not more than 3 marks shall be added to any of the candidates:
(I) P. H. C. service of 2 years or more;
(ii) Army Service of 6 months or more;
(iii) Rotating internship in the District Headquarters Hospital, for 3 months or more;
(iv) Diploma holders applying for degree course in the same subject;
(v) Research fellows / Demonstrators / Tutors with an experience of over 2 years in the same subject;
Rule 10 (f) provides that the selection committee will select the candidates as per reservation specified in Rules 2 and for the total seats available in the groups as detailed in Annexure-I.
11. The main contention urged on be half of the petitioners in these writ petitions is that the reservation contained in Rule 2 (2) reserving 50% of the seats in certain subjects and 30% of the seats in all other subjects for the in-service candidates who are appointed in the Andhra Pradesh Medical Services is violative of Article 14 of the Constitution.
12. The petitioners contend that the classification of in- service candidates is improper, and has no just relation to the object to the rules, namely, to get the best available talent for admission into the post- graduate medical courses. In any event, it is contended that the reservation is excessive and out of proportion to the number of in-service candidates eligible for admission into the post-graduate course and is therefore arbitrary.
13. It is well settled that while Articles 14 of the Constitution guarantees equality before law to any person within the territory of India, it does not forbid reasonable classification. But, in order that a classification may be reasonable, it should be founded on intelligible differentia which distinguishes person or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to he achieved vide for instance Dalmia's case : 1SCR279 .
14. The question for consideration before us is whether the classification of candidates for admission as in-service candidates for the purpose of reservation of certain seats is a reasonable classification.
15. The submission of the State Government in support of the reasonableness of this classification which found favour with a Division Bench of this court in K. Ramakrishna v. Director of Medical Service, : AIR1979AP223 is as follows:-
It is the State Government which finances the medical colleges as well as the Medical Service that are remanded (sic) in the State. The main object of the reservation of seats in favour of persons in the Andhra Pradesh Medical Service is to see that graduate doctors in service complete their post- graduation courses and thereby be of greater service to the people for whose benefit the medical service is constituted. This reservation will enable the State Government to have better qualified doctors and medical personnel to serve the people of the State with greater knowledge acquired by undergoing post- graduate courses. The reservation is only in the nature of an amenity provided to the doctors who are already in service for being trained in post-graduate course so that the medical personnel are equipped with latest techniques and post- graduate excellence. Thus, the classification of the service candidates into a separate category for the purpose of reservation is eminently reasonable.
16.- 17. On the other hand, the contention of the petitioners is that the object of the rules is to get the best available medical talent admitted into the post-graduate course. In exercise of the power conferred under Section 33 of the Medical Counsel Act, the Medical Counsel is empowered to make regulations. Accordingly, it made certain recommendations in regard to the post- graduate medical education which are approved as Regulations under Section 33 of the Act. The most important of these recommendations which are to be treated as regulations is that students for post-graduate training should be selected strictly on merit. In order to determine the merit his performance at the M. B. B. S. examination, his performance during the course of internship and the report of the teacher may be considered. Alternatively, it is suggested that the authorities may conduct competitive entrance examination to determine the merit of a candidate for admission to post-graduate medical courses. Accordingly, the rules provide for an entrance test being conducted for all person seeking admission to the Post- graduate courses and a master merit list being prepared on the basis of marks obtained in such entrance test. The recommendations and regulations of the Medical Council do not envisage any distinction being drawn between in- service candidates and other candidates in regard to admission. All of them have to be considered only on the basis of merit. Apart from this, there is no rational basis for reserving seats for in-service candidates. The whole object of getting the best talent admitted for the post-graduate courses will be defeated if a substantial number of seats are reserved for in-service candidates. Such reservation will stand in the way of candidates being selected on the basis of merit.
18. Before dealing with these respective contentions, it would be profitable to consider some decisions of the Supreme court and the High Courts cited at the bar which deal with the specific question of reasonable classification in the matter of admission to Medical Colleges run by the State.
19. In P. Rajendran v. State of Madras, : 2SCR786 the Supreme Court had to deal with a rule allocating seats district- wise. The Supreme Court observed that considering the fact that there is a larger number of candidates than seats available, selection has necessarily to be made. But the object of selection can only be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward classes which is permitted under Article 15(4) of the Constitution. The Supreme Court observed material would be defeated if seats are allocated district by district. The Supreme Court went on to say that while Article 14 does not forbid classification, that classification must not only be reasonable but there should be a nexus between the classification and the object to be achieved. Admission to the colleges district- wise would result in the object of getting the best talent for admission being destroyed. Hence, the classification , even if reasonable, would result in discrimination inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources. There is no nexus between the territorial distribution and the object to be achieved namely, admission of the best talent. Similarly, in A. Periakarupan v. State of T. N., AIR 1971 SC 203 the Supreme court struck down unit- wise distribution of seats in Medical Colleges in the city of Madras which were constituted as one unit and each one of the other Medical Colleges in the mofussil as a separate State. In respect of each one of the units, a separate selection committee was constituted and the applicants were asked to apply to any one of the committees. This scheme was sought to be justified on the ground of administrative convenience as it was not possible for one selection committee to interview, all the candidates in the State. The Supreme Court observed that the object of selecting the best candidates for being admitted to the Medical colleges cannot be achieved by the method adopted. It was held that the unit- wise distribution of seats is in the same position as district wise distribution which was not countenanced in Rajendran's case, : 2SCR786 . In State of U. P. v. Pradip Tandon, : 2SCR761 , the Supreme Court struck down reservation of seats for candidates in rural areas in the rules relating to admission to Medical Colleges in U. P. They rejected the contention that such reservation would be justified on the ground that rural areas represent socially and educationally backward classes and would therefore be violative of Articles 15.Thereafter they considered the reservation apart from Articles 15 and observed that the reservation cannot be upheld because such a reservation defeats the object of securing best possible students for admission to the medical colleges. They followed the decision in Rajendran's case (supra) wherein district wise allocation was held violative of Articles 14.
20. On the other hand, the learned Advocate General drew our attention to a number of decisions in which reservation in favour of particular categories of candidates was upheld. In Chitra Ghosh v. Union of India, : 1SCR413 the Supreme court had to consider reservation of certain seats for the sons and daughters of residents of Union territories other than Delhi and also for the sons and daughters of Central Government servants posted in Indian Missions abroad. The Supreme Court observed that it was the Central Govt. Which both the financial burden of running the medical college and it was for it to lay down criteria for eligibility. It cannot be denied the right to decide from what sources the admission will be made. If the sources are properly classified, whether on territorial, geographical or other reasonable basis, it is not for the courts to interfere with the manner and method of making the classification. The main purpose of admission to medical colleges is to impart education in theory and practice of medicine. The Supreme court observed that in the case of sons and daughters of residents of Union territories, these areas are well known to be comparatively backward and with the exception Himachal Pradesh, they do not have any Medical College of their own. It was therefore necessary that persons desirous of receiving medical education from these areas should be provided some facility for doing so. Regarding sons and daughters of Central Government servants posted in Indian Missions abroad, the Supreme Court observed that it is well known that these persons are faced with , a lot of difficulties in the matter of education in foreign countries. The classification in these cases was therefore based on intelligible differentia. In D. N. Chanchala v. State of Mysore, : AIR1971SC1762 the Supreme Court upheld the University wise allocation of seats. Referring to Rajendran's case. (supra) they observed that University- wise distribution of sears has nothing in common with the district- wise selection struck down in Rajendran's case. There was three Universities set up in different places and there was nothing undesirable in ensuring that those attached to such Universities have their ambitions to have training in specialised subject like medicine , attained through colleges affiliated to their own Universities. As is well known, different Universities have different standing in the examination held by them. The Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a ratable basis and a reasonable connection with the object of the rules. Candidates passing through the qualifying examination held by a University from a class by themselves as distinguished from those passing through such examination from the other two Universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own University to advance their training in technical studies. Apart from these decisions of the Supreme Court, reliance was also places upon the decision of the Mysore High court in Dr. Narayana Swamy v. State of Mysore, ( AIR 1968 Mys 189). The Mysore High Court had to consider the Validity of the rules relating too admission of Licentiates to he condensed M. B. B. S. course. The rules classified the licentiates as those who were in Government service and those who were not in Government service. 90% of the seats were reserved for person in Government service and the remaining seats were open to others. The Mysore High Court held that this classification was valid. It was observed that the doctors in Government service serve in Government Hospitals which are open to the General public. The object of the rules was to improve the knowledge and the educational standard of the licentiates. It was intended that Licentiates in the Government service should be provided an opportunity to improve their knowledge and educational; standard so that the Government may have better qualified and better equipped doctors to man the hospitals maintained by them. It is only incidentally and by way of an exception that the facility of the condensed M. B. B. S. course was extended to a limited number of licentiates who were not in Government service. In these circumstances, it was held that reservation of 90% of the seats for Licentiates in Government service was valid.
21. we are inclined to agree with the submission of the learned Advocate General that the classification of the candidates who are members of the Andhra Pradesh Medical Service is reasonable in the circumstances of the case and bears a just relation to the object of the rules. It is well known that in a poor country like India, a very large number of person in need of medical aid are compelled to seek medical aid in Government Hospitals where they can get free medical aid or medical aid on payments of nominal charges. Doctors who are members of the Andhra Pradesh Medical Services and who are employed in Government hospitals are therefore instrumental in rendering medical aid to a great majority of the public. It is therefore essential that they should be enable to become more competent to render medical assistance by increasing their knowledge in specialised fields. By making reservation in favour of persons who are already in medical service, the number of competent doctors with Specialised skill in the Government hospitals would be increased and ultimately, the public is greatly benefited. The object of the rules being to impart medical education and produce capable doctors with adequate knowledge and skill, the reservation of some seats for Government doctors who are already having some experience and whose increased knowledge would be put to use for the benefit of the public, is one which has a just relation to the object and purpose of the rules. On this aspect we agree with the view expressed by this court in k. Ramakrishna v. Director of Medical Service (supra). The decision relied on by the petitioners, namely, Rajendran's case (supra). Periakaruppan's case (supra), and Pradip Tandon's case (supra) are not of much assistance to them. In the first case, there was a district- wise allocation of seats and it was held by wise allocation would defeat the object of getting best talent. Similarly, the unit- wise allocation in Periakaruppan's case and allocation on the basis of residence in rural areas were also held to stand in the way of the admission of the best talent into the medical colleges. As pointed out by the Supreme court in the numerous decisions cited on behalf of the Advocate- General, the Government which bears the financial burden of running the medical colleges has the right to decide from what source the admission will be made. Of course, as pointed out by the Supreme Court, even if the Government has a right to choose the source from which selection has to be made, the classification of the source be based on intelligible differentia. In this case, the Government has decided to take in a certain number of candidates for admission into post- graduate courses from a particular source, namely, in service candidates. As observed by us earlier, the classification of this source is reasonable and has a just relation to the object of the rules.
22. we are however of the view that the contention of petitioners that reservation of 50% of seats in certain subjects and 30% in other subjects for the inservice candidates is excessive and wholly out of proportion to the number of in -service candidates eligible for admission, as compared to the total number of applicants (sic). Taking for instance Osmania University, we have been informed that last year, the total number of applicants was 877 out of which only 86 were in- service candidates. This year, the total number of applicants is 797 out of which in- service candidates are 189. Thus, it is seen that while in service candidates from less than 20% of the total number of applicants, there is a reservation of 50% of the seats in some subjects and 30% in other subjects. In this connection, it has to be noticed that, after 43% of the seats are reserved for weaker sections, 50% of the seats are reserved in addition for in- service candidates, the total number of seats open to the applicants on the ground of merit will be only 7%. With regard to the other subjects, it will be 27%. If the reservation for in-service candidates is to be reasonable, it must have some correlation to the number of eligible in- service candidates and its proportion of the total number of applicants. In this case, we consider that the seats reserved are totally out of proportion to the small number of eligible in- service candidates. It is no doubt true that in rule 2 (2), It is also provided that candidates selected in reserved quota and in open competition shall be counted for this purpose, In other words. 50% will be computed by taking into account also the in service quota for weaker sections and who also get selected in open competition. Even making some allowance for this, still, the total number of reserved seats for weaker section as well as in- service candidates will be extremely high and the seats available by open competition will be very few.
23. Dealing with this aspect, the Division Bench in K. Ramakrisna v. Director of Medical Service (supra) observed:
' if service candidates have been selected as per the observation in the category of Scheduled Castes, Scheduled Tribe or Backward classes, no more reservation is permissible to the service candidates. This is the very important consideration which weighed with our learned brother and rightly so in our opinion. It may be that in some cases there may not be that in some cases there may not be any service candidates in scheduled castes, Scheduled Tribes and Backward classes, but that does not invalidate the Rule and reservation made therein. Further more, there is no special reservation of more than 50% in favour of any particular class or category mentioned in r. 2.'
24. In our view, this observation failed to take into account that even if some service candidates find a place among the candidates belonging to the weaker section, the number would naturally be very small and this will not effectively reduce the percentage of seats reserved for in- service candidates. The further reason given in the said judgment that there is no special reservation of more than 50% in favour of any particular category mentioned in rule 2 is, in our view, not sound. The normal principle should be that all person who apply for admission into the college should stand an equal chance for getting admission on the state is entitled to make reservation in favour of weaker sections and it has done so to the extent of 43%. It may be, as we have held earlier, that the State is entitled to make a reasonable classification of candidates belonging to Government service and make reservation for them. But in doing so, the exceptions made by way of reservations should not be such as to allow the main rule, namely , to admit the candidates on the basis of merit. It is therefore not a proper answer to say that the reservations of less than 50% in different categories, which may satisfy the test of reasonable classification. But the total number of seats so reserved mau equal the total number of seats available, leaving no seat available for candidates on the basis of merit. The entire question of reservation must be considered as a whole and if the reservation is so excessive as to leave very few seats available for candidates to be selected on the basis of merit, such reservation of 50% of the seats in some subjects and 30% of the seats in other subjects for the in- service candidates who from a small fraction of the total number of applicants is arbitrary and excessive and therefore violates Article 14 of the constitution.
25. The learned Advocate General argued that the observation of the Supreme Court in Balaji's case, : AIR1963SC649 , that 'speaking generally and in a broad way, a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon relevant prevailing circumstances in each case' was only in regard to the reservation for backward classes etc. under Art. 15(4) of the constitution and that principle should not be extended to reservation in respect of in -service candidates. It is true that the Supreme Court was dealing in Balaji's case, : AIR1963SC649 , with reservation for weaker sections of the society will have to be adjusted with the interests of the community as a whole and if, under the guise of making special provision, the State reserves Practically all the seats available, that clearly would be subverting the object of Article 15(4), would in our view apply with equal force to any reservation made in respect of a particular category of persons. The principle enunciated by the Supreme Court is of universal application even in matters not falling under Articles 15(4), but coming with in Articles 14 of the constitution. The learned Advocate General also drew our attention to Chitra Ghosh v. Union of India, where 45% of the seats that is, 18% reserved for various categories of applicants like sons and daughters of Central Government servants in Union territories, sons and daughters of Central Government servants posted in Indian Missions abroad , cultural scholars etc., were held to be valid though the total of the reservations amounted to 63%. It has however to be noted that in that case, it was found that the central Government had been acting in a very reasonable way and was making nominations only to nine seats out of 23 reserved seats and the rest was thrown open to the general pool. Hence, as a matter of practice reservation under these heads was only 9 out of 125, that is about 7%. Reference was also made to state of U. P. v. Pradip Tandon (supra), where the Supreme Court up held the reservation of 26 seats for Government of India nominees which taken along with other reserved seats would make the total reserved seats 52%. Even here, it is seen that by adding all the categories of reservation, the total number of seats was only 52% whereas in our case, it would be as high as 93% in one case and 73% in another.
26. we therefore strike down rule 2 (2) of the rules as violative of Art. 14 of the Constitution on the ground that reservation for in- service candidates though based on reasonable classification, is excessive and arbitrary.
27. In W. P. No. 7019/ 97, the petitioner has raised a contention that rule 2 (2) which provided for reservation only for candidates belonging to the Andhra Pradesh Medical Services is discriminatory and such reservation should be available to candidates belonging to the All India Medical Services also. But, at the time of arguments, Sri, M. Jagannathrao submitted that he preferred to take up the stand along with other petitioners that rule 2 (2) is ultra vires and has to be struck down.
28. Sri Parvatharao who appeared for the petitioners in W. P. No. 7088 of 1979 submitted that rule 2 (1) which reserves 25% of the total number of seats available to backward classes is ultra vires. This contention cannot be accepted as such a reservation is permissible in view of the clear terms of Art. 15(4) of the constitution- vide Balaji's case. Sri Parvatha Rao however argued that while Art. 15(4) of the constitution enables a special provision to be made for the advancement of socially and educationally backward class citizens, we are concerned here with admission to a post- graduate course and person who are eligible for admission of those who have passes the M. B. B. S., examination. He argued that a person who has already passed M. B. B. S., examination cannot be considered educationally backward. He cannot also be considered socially backward as it cannot be imagined that a person who has passed M. B. B. S., being considered socially inferior. There is considerable force in the submission that a person who is M. B. B. S.., graduate cannot be considered socially or educationally backward and does not need any protection individually. As a matter of fact, we are informed that in many states, there is no reservation for backward classes for post- graduate courses, obviously because it was felt that person who have passed M. B. B. S. and are applying for post-graduate course do not require any special protection, But this argument is of the clear language of Art. 15(4) which deals not with individuals but with special provision for advancement of any socially and educationally back ward class. It may be that individually a person who has passed M. B. B. S., examination cannot be considered socially or educationally backward, but nevertheless, if a person who belongs to the backward class passes the M. B. B. S. examination he does not cases to be a member of the backward . The criterion for protection under Articles 15(4) is not whether a particular person is by himself socially and educationally backward, but whether he belongs to a socially and educationally backward class. we see considerable force in the contention of the petitioner that such a provision would perpetuate the existence of backward classes. Any safeguard provided and protection afforded would destroy every urge to improve. Hothouse plants find it difficult to survive in sunshine. Even with regard to children while they should be brought up with love and affection, too much protection and shelter by their parents renders them unfit to stand by themselves and fight the battle of life. So it is with weaker section of society. While every attempt should be made to help them to compete with their more fortunate brother on equal terms, too much protection and for too long a time is not conductive to their well being. It would encourage persons to claim themselves as belonging to backward classes and some constitutional protection. Further, experience during these thirty years has shown how difficult it is to determine whether any class is backward or not. With a large number of persons in what may be regarded a backward class moving forward in the social, educational and economic sphere it is becoming increasingly difficult to classify any groups as a backward class. 'what justification' Sri Parvatharao asks 'is there to give protection to a person who is wealthy, or well placed in society or is well educated, merely because he belongs to a backward class'. It is true, it would have been admissible if protection has given to an educationally and socially and even economically backward individual than to a class. The time has come when we have to consider seriously whether it is not necessary to amend Art. 15(4) by providing for the advance meant of socially and educationally and even economically backward individuals instead of socially, and educationally, backward classes, But until that is done, this court has to consider only the language used in the Articles. It is not for this court to question the wisdom of the framers of the Constitution. On the languages of Art, 15(4), we have no option but to hold that so long as a person is a member of backward class, he is entitled to the protection afforded by the article irrespective of the question whether individually he is socially or educationally backward or not. we therefore negative the contention raised by Sri. Pravatharao that rule 2 (1) is ultra vires.
29. Some of the petitioners challenged the validity of rule 9 (h) which provides that minimum marks required to pass in the Entrance test is 25% for scheduled caste and Schedule Tribe candidates and 30% for all other categories. It was argued that there is no rational basis for providing a lower percentage of minimum marks in the case of Scheduled Castes and Scheduled Tribes. we do not agree. It is well- known that the Scheduled Caste and Scheduled Tribe candidates suffer from a servering handicap while competing with others and the constitution itself recognises that they need special treatment. Such a provision is one which is necessary 'for the advancement of the Scheduled Castes and Scheduled Tribes' and is there fore justified under Art. 15(4) of the Constitution.
30. It was also contended that R. 10 (e) which gives weightages of 3 marks to various categories of applicants referred to in that sub-rule is violative of Art. 14. Though there are 5 categories mentioned, at the time of arguments, the challenge was confined to categories (I) to (iii) namely P. H. C. service for 2 years or more; Army service of 6 months of more; Rotating Internship in the District Head-quarters Hospital for 3 months or more. We are of the view that the provision for adding a small percentage of marks namely, 3, to the candidates belonging to the categories referred to above, cannot be regarded as unjustifiable and discriminatory. In regard to the first category, it is intended to encourage persons to serve in public health centers. Similarly, service in the army is sought to be encouraged by awarding marks to those who have served the army for 6 months or more. Regarding the third category, it was intended to encourage medical graduates to do a part of their intercship in the District Headquarters hospital. It is well-known that Doctors are reluctant to serve in rural areas and are concentrated in big cities. The object of 3 Extra marks to those who did a part of their internship in the District Headquarters Hospitals is to encourage service in the districts. Sri Waghray, learned counsel for the petitioner in W. P. N. 6752 of 79 submitted that this was not made known to the applicants earlier. In such an announcement had been made the petitioners would certainly have served internship in the District Headquarters hospital. Further, when a rule which partakes the character of a legislation is made, conferring a benefit on a particular category of persons, it is no argument to say that if the petitioners had known of such a legislation, they would have taken care to see that they came within the category of persons entitled to such a benefit.
31. In W. P. N. 6727-79, the petitioner secured a seat in 1979 in M. D. (Radio Therapy). In the present year, he applied for a seat in M. D. (Pediatrics), or M. S. (General Surgery) and M. S. (Orthopedics). Rule 5 (b) however provides that applicants who are already post-graduate degree holders in a subject or admitted and registered for a post-graduate degree in a subject shall not be considered for selection for post-graduate degree in another subject. The petitioner challenges this rule as illegal. It is well-known that the State spends huge sums of money on each individual who is undergoing a post-graduate course. Further, the number of seats available are few. It was therefore rightly felt that a person who is already admitted for M. D. Course in a particular subject should not be permitted to apply for a seat in another subject. If that is permitted, it would result not only in a large sum of money spent on the candidate being wasted, but in denying the seat to another deserving person. It is a salutary principle that candidates should not be permitted to change horses in mid-stream. Sri Ramamohan Rao pointed out that there is a similar rule wit regard to post-graduate diploma holders, but subsequently, that rule was relaxed by a notification D/- 17-10-1979 by stating that candidates who were undergoing diploma course also can appear for the entrance test for subject available in the same groups. He contended that similar relaxation of the rule regarding post-graduate students should have been made. The mere fact that rule was relaxed in the case of diploma holders does not entitle the petitioners to claim relaxation in their case also. The diploma holders form a distinct and separate category from post-graduate degree holders and relaxation in regard to the first category as of right to claim such relaxation. We therefore see no substance in the contention raised by Sri Ramamohan Rao.
32. For all the reasons, we are of the view that rule (2) deserves to be struck down, as ultra vires. We hold that Rr. 2 (1), 9 (h) and 10 (e) are valid. In the result, W. P. Nos. 6752/79, 7019/79 and 7088/79 are allowed to this extent. W. P. No. 6727/79 is dismissed.
33. There will be no order as to costs in any of the Writ Petitioners.
34. Advocate's fee Rs. 100/- in each case.
35. An oral application is made by the learned Government pleader for leave to appeal to the Supreme Court. As we are satisfied that there are substantial questions of law of general importance which require to be considered by the Supreme Court, we grant leave.
36. A further application is made orally to suspend the operation of this judgment. We direct that the operation of this judgment should be suspended till one month from today, so that the appellants may approach the Supreme Court and obtain suitable orders. The list of successful candidates will not be published until then though the other proceedings regarding correction of papers etc. may go on 7-12-1979.
P.A. Choudary, J.
37. I agree but with some hesitation on one question. That question which appears to me of far-reaching constitutional significance is mooted in the argument but unfortunately not developed at all. The question is whether or not it is constitutionally permissible for the State of reserve seats under Article 15(4) of the Constitution in Post-graduate Medical Courses?
38. Article 15(4) speaks of the power of the State 'to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.' Constitution recognizes such a reservation would not constitute an infringement of the individual rights guaranteed to the Indian citizens in Articles 15 and 29. That such a special provision should, as matter of constitutional interpretation, be construed not expansively but restrictively is a part of the conventional wisdom. But considering the age-old social degradation to which these classes of people were oppressively condemned and denial of equality and equal opportunities to which they were unjustly subjected, the rigorous of the traditional rule of restrictive interpretation must, I believe be greatly relaxed, Yet, I feel that a reservation in post-graduate medical course on the ground of educational backwardness way not constitutionally be permissible because a Medical Graduate ex-hypothesis loses his educational backwardness. No doubt, Article 15(4) of the Constitution speaks of socially and educationally backward classes and their advancement. But a class is merely a group of persons united by some common characteristics. Under Article 15(4), the common trait that unites a cluster of persons into a socially and educationally backward class is the social and educational backwardness of the members of that class. We are here concerned with educational backwardness. The doubt I am entertaining is whether a person who acquires his M. B. B. S. Degree and becomes a candidate for admission into post-graduate medical course, does not cease to be a member of an educationally backward class. Speaking either relatively or absolutely, it should be admitted that the acquisition of a graduate medical qualification would automatically cut the umbilical cord that ties that individual to the group called 'Backward class'. It follows that thereafter that individual cannot properly be called a member of Backward Class and therefore the question of advancing his interests which is the concern of Art. 15(4) would cease to exist. But it is said that Article 15(4) of the Constitution speaks of classes and not individuals. It is therefore necessary here to emphasize that class has no independent existence in the objective world. It is merely a language device and a name given to denote a group of persons. It is an unverifiable, metaphysical, conceptual entity. The famous statement of Arthus Koestler that Classes are unreal and only individuals are real is worthy of being recalled in the context. It follows therefore that the aim of Article 15(4) is to advance the educational conditions of individuals who are backward and not those of classes which do not exist in reality. There are also two other reasons which prompt me to think that Article 15(4) in the ultimate analysis thinks of individuals only. Of them, one is that Article 15(4) forms an exception to the individual fundamental right guaranteed to the citizens as an individual under Articles 15 and 29. The exception could only deal with the same subject matter of the main enacting clause. The other is that the quality of backwardness can attach itself only to an individual and therefore the subject of backwardness can only be an individual.
39. Because of the inherent rule of mobility which is the peculiar feature of a 'Class' as different, from a caste which is basically immobile, old members go out while new ones join the group called 'Backward Classes.' I have the gravest of doubt whether Article 15(4) which is intended on my interpretation for the benefit of an educationally backward individual but who as an individual is not today backward would be entitled to those benefits because he was once a member of the backward class. That view appears to me to be a static and metaphysical view that is willing to sacrifice the objective reality at the altar of an abstract concept. Man has suffered most from the tyranny of concepts and words. I believe that the interpretation of Article 15(4) must not be allowed to share in that fate. Constitution could never have intended the use of the scarce resources of this poor nation to be used for the discriminatory benefit and advantage of those individuals who are already well advanced. The meaning of the language of Article 15(4) which speaks of 'the advancement of socially and educationally backward classes' appears to me to point in the contrary direction. We should not by our interpretation promote the pernicious theory, 'once backward always backward' and create and protect vested interest in backwardness. While I firmly believe in the need to protect the interests of the socially and educationally backward classes, I humbly plead that the State must identify the socially and educationally backward classes in such a way as to deny entry into or stay in that group at any point of time to those individuals who do not answer the description of backwardness individually.
40. What I say above is tentative. I reserve my right for a future day to decide this point fully.
41. Ordered accordingly.