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P. Sagar and ors. Vs. State of Andhra Pradesh Represented by Health Department, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 1268, 1287, 1317, 1319, 1321, 1324, 1330, 1333, 1334, 1335, 1336 to 1341, 1342 to 13
Judge
Reported inAIR1968AP165
ActsConstitution of India - Articles 5(1), 12, 13, 14, 15, 15(1), 15(3), 15(4), 16, 16(2), 16(3), 16(4), 16(5), 19, 19(1), 19(8), 21, 29(2), 46, 261, 341, 341(2), 342, 342(2) and 371; Andhra Pradesh Regional Committee Order, 1958; Evidence Act - Sections 115; Constitution of India (First Amendment) Act, 1951 - Sections 2
AppellantP. Sagar and ors.
RespondentState of Andhra Pradesh Represented by Health Department, Hyderabad and ors.
Appellant AdvocateP.A. Choudhary, ;P. Babulu Reddy, ;P. Rameshwara Rao, ;P. Bhalakrishna Murthy, ;P. Sitarama Raju, ;P.C. Lakshmana Rao, ;P. Venkateswara Rao, ;P. Raghunatha Reddy, ;P. Yadagiri Rao, ;P. Seshapani, ;S.
Respondent AdvocateAdv. General, ;3rd Government Pleader and ;A. Pandu Ranga Rao, Adv.
Excerpt:
constitution - classification based on residence - articles 14, 15, 16, 19 (1), 21 and 29 of constitution of india - writ challenging reservation made by rules for selection of applicant in medical college - court observed that regional distribution of seats does not offend fundamental rights - whether particular class of citizens socially backward or not caste of said group is to be considered - validity of rules cannot be challenged on ground that they are executive orders and division can be made only by legislature. - - in this manner, like in the telangana rules, 5 per cent are reserved under rule 4 for the several categories enumerated above. 1 per cent of the total number of seats are to be reserved to the children of displaced gold smiths, though there is no mention, like.....p. jaganmohan reddy, c.j.1. this batch of 104 writ petitions, referred to a bench by an order of one of us (venkatesam, j.) as they raise important constitutional issues, challenges the reservations made by the rules for selection of candidates for admission to the integrated m. b. b. s. course in the andhra and the telangana are, issued through g o. ms. no. 1135 and 1136, health, hoasins and municipal administration department dated the 16th june 1966, of these, 84 are from the andhra area and 20 are from the telangana area. in the main the impugned reservations are common to both the areas, except in so far as they have been indicated hereafter.2. in the telangana area, the seats for admission available in the osmania medical college are 150 while those in the gandhi medical college are.....
Judgment:

P. Jaganmohan Reddy, C.J.

1. This batch of 104 Writ Petitions, referred to a Bench by an order of one of us (Venkatesam, J.) as they raise important Constitutional issues, challenges the reservations made by the Rules for selection of candidates for admission to the Integrated M. B. B. S. course in the Andhra and the Telangana are, issued through G O. Ms. No. 1135 and 1136, Health, Hoasins and Municipal Administration Department dated the 16th June 1966, of these, 84 are from the Andhra area and 20 are from the Telangana area. In the main the impugned reservations are common to both the areas, except in so far as they have been indicated hereafter.

2. In the Telangana area, the Seats for admission available in the Osmania Medical College are 150 while those in the Gandhi Medical College are 120; and applications for admission to these 270 seats were invited for the academic year 1966-67. Similarly for the Andhra area, the seats for which applications were called for are 150 in the Andhra Medical College, Visakhapatnam 150 in the Guntur Medical College; 150 in the Kurnool Medical College and 100 in the Sri Venkateswara Medical College; -- making in all 550 seats.

3. In the Telangana area, 3 seats are reserved for candidates selected by the Government of India from outside the State of Andhra Pradesh for admission to the course in the colleges. Similarly, in the Andhra area, 5 seats are reserved for Central Government candidates for admission to the Course in the Colleges in that area. With respect to these reservations of 3 and 5 seats respectively, the Government of India under Rule 2(b) shall have the right to select and nominate candidates of their own choice and the seats coming under the said reservation shall be excluded from the purview of the Selection Committee. Clause (c) of Rule 2 provides that the candidates for admission against the reservation shall possess the required minimum educational and other qualifications for admission to the course, as required under the rules If the candidates specified above are not forthcoming in any year to fill up the seats reserved for them, the vacant seats shall, under Rule 2(d) be reallotted to the overall total of the candidates in both the Telangana and the Andhra areas After deducting the above reservations allotted to the Central Government, a maximum of 5 per cent of the total number of seats available in the Telangana area, are reserved under Rule 3 for candidates who have distinguished themselves in N. C. C. A. C. C. President's Scouts and Guides, Sports and Extra curricular activities and children of ex-service men and armed personnel. Of these, 2 per cent of the seats are reserved exclusively for students possessing the prescribed certificates in N. C. C. and A C. C. and President's Scouts and Guides, to be selected in accordance with the procedure prescribed in Appendix I of the rules; 1 per cent to be reserved for sportsmen and students who participated in games, to be selected in accordance with the procedure detailed in Appendix II : and 1 per cent is reserved for students who have participated in extra-curricular activities, such as Elocution, Debats, Eassays and Fine Arts, such as Dance, Drama, Music and Painting. There are several notes added to Rule 3. which are for the present may be ignored.

4. In the Andhra area, after the reservation in favour of the Central Government, Rule 3 provides for reservation of not more than 10 seats for candidates belonging to the States is Southern Region, who have to be selected strictly on the basis of merit along with the candidates of the State in Region III, as provided for under Rule 7. (We will refer to these Regions later). If the candidates for these 10 seats are treated as scheduled castes and scheduled tribes in their parent State they will be treated as such for the purpose of selection under their reservation categories. Other candidates will be considered in the general category on merit. Seats unfilled from this reservation will be redistributed among the three Regions in the Andhra area on population basis Rule 4 of the Andhra rules makes provision for reservation of a maximum of 4 per cent of the total number of seats available after deduction the number of seats reserved under Rules 2(a) and 3 from the over all total for candidates who have distinguished themselves in the N. C. C. A C C., President's Scouts and Guides. Sports and Extra-curricular activities: out of which 2 per cent are exclusively reserved for students possessing the prescribed certificates in N. C. C and A. C. C., and President's Scouts and Guides, selection for which will be made in accordance with the procedure detailed in Appendix I: 1 per cent for sportsmen and students who participated in games -- the selection for which will be made according to the procedure prescribed in Appendix II. and 1 per cent for students who have participated in extra-curricular activities such as Elocution, Debates, Essays and Fine Arts (such as dance, drama, music, and Painting). In the Andhra rules also there are Notes added to Rule 4 giving preferences in each of the categories. Apart from this 4 per cent Clause (d) of Rule 4 provides for reservation of 1 per cent of the total seats to be reserved for the children of ex-service men and Armed Personnel. In this manner, like in the Telangana Rules, 5 per cent are reserved under Rule 4 for the several categories enumerated above.

5. Thereafter, Rule 4 of the Telangana Rules and Rule 5 of the Andhra Rules, make provision for reservation of seats for candidates belonging to the scheduled castes and scheduled tribes. They provide that subject to the procedure prescribed in Rule 17, 14 per cent and 4 per cent of the number of seats available after deducting the number of seats reserved in the respective areas already specified from the overall total, are to be reserved for candidates, including women candidates, belonging to the Scheduled Castes and Scheduled Tribes respectively. If any seats reserved for the Scheduled Tribes fall vacant, they will be thrown open to the candidates belonging to the Scheduled Castes and vice versa. A list of Scheduled seats and Scheduled Tribes in the State have been specified in Appendix III. Under Rules 4(c) and 5(c) of the Telangana and the Andhra Rules respectively if qualified candidates from the scheduled castes and scheduled tribes are not available upto the limit of 18 per cent of the seats reserved for them, the balance of the seats available in the reservation shall be allotted to the general pool. It may be noted that under Rule 4(c) of the Telangana Rules, 1 per cent of the total number of seats available after deducting the number of seats reserved under Rule 2(a) from the over all total, shall be reserved . for the children of displaced goldsmiths; while under Rule 5(d) of the Andhra Rules, a similar percentage, viz. 1 per cent of the total number of seats are to be reserved to the children of displaced gold smiths, though there is no mention, like under the Telangana Rules, from what total this 1 per cent is to be reserved. It may, however, be presumed that it must be after deducting the reservations in Rules 2 and 3.

6. Rules 5 and 6 respectively of the Telangana and Andhra Rules, reserve 30 per cent of the number of seats available after deducting the number of seats as per Rule 2 (a) of the Telangana rules and Rules 2 and 3 of the Andhra Rules, for women candidates, to be selected in accordance with the pro-cedure prescribed in Rule 17.

7. Rule 6 of the Telangana rules states that the Telangana area shall be divided into two regions, and for purposes of selection, the seats available for admission in the Telangana area after deducting the reservation specified in Rule 2 (a) are to be allotted to the candidates belonging to that area only. These regions are; Region 1: The cities of Hyderabad and Secunderabad; Region II: The Telengana area of the State excluding the cities of Hyderabad and Secunderabad. Sons and daughters of officers of Government belonging to the Andhra region and working in the twin cities and sons and daughters of non-officials, who have moved into Hyderabad City on or after 1-11-1956 and are bona fide permanent residents thereof, are eligible for admission. These admissions are not in any case to exceed 5 per cent of the total number of seats available for Region I. In Notes (i) and (ii) it is further provided that the children of Andhra Officers and non-officials should get selection on merit from their respective regions in the Andhra Area. Similarly all candidates of Telangana area from Region I, who but for these outside admissions would have secured admissions in the Colleges concerned, shall, without any further procedure for selection, be entitled to secure admission in the corresponding Colleges in the Andhra region, and preferably in the districts adjacent to Telangana. Under Rule 6(c) it is further provided that If in any region in the Telangana area there is deficiency in the number of candidates admitted against the reserved quota for that region in favour of a particular category, the candidates from the general category in that region shall be considered for admission In so far as the Andhra area is concerned, Rule 7 deals with regional distribution of seats and contains reciprocal provisions in respect of seats reserved for Government officials and non-officials of the Telangana area. The three regions into which the Andhra area is divided are:

Region I: Comprising the districts of Srikakulam and Visakhapatnam.

Region II: Comprising the districts of East Godawari, West Godawari, Krishna and Guntur and

Region III: Comprising the districts of Nellore, Cuddaph, Kurnool, Anantpur and Chittoor.

In all other respects, this rule is similar to Rule 6 of the Telangana rules.

8. Rules 10 and 11 respectively of the Telangana and Andhra rules reserve a certain percentage of the seats for candidates successful In the H.S.C. (Multi-purpose), I. S. C., and P. U. C. examinations. Both in the Andhra and the Telangana regions, all those candidates are to be selected on merit basis, subject to the condition, in both the areas that at least one-third of the total seats (in all categories put together) should be given to H. S. C. (Multipurpose) and I. S. C. candidate? and that at least 50 per cent of the seats should be given to the P. U. C. candidates.

In case the H. S. C. (Multi-purpose) and I. S. C candidates and the P. U. C candidates fail to get at least the quota of seats fixed for them in all the categories (general, scheduled castes, scheduled tribes and women etc.) the number should be made up by admitting corresponding number of H. S. C. (Multi-purpose) and I. S. C. candidates and P. U. C. candidates as the case may be, who are otherwise qualified. In so far as this reservation is concerned, during the hearing of these Writ Petitions, the Government have amended the rules further, in both the Telangana and Andhra areas, by G. O. Ms. No. 2216 and 2217, Health, Housing and Municipal Administration Department, dated 24-9-1966, to which we shall advert at the appropriate time in dealing with the contentions relating to this particular reservation.

9. The last of the reservations deal with admission of M. Sc. and B. Sc. candidates in the 1st year, which it the subject-matter of Rules 11 and 12 respectively and Rules 12 and 13 in the respective rules deal with admission of M. Sc. and B. Sc. candidates in the II year in casual vacancies.

10. It may be observed that under Rules 13 and 14 respectively of the Telangana and Andhra rules, dates have been indicated for the publication of the notifications inviting the applications as 15th May 1966 the last date for receipt of filled-in-applications as 15th June, selection on 1st July and provisional publication of the names of selected candidates, on 5th July. This is subject to the power conferred on the Director of Medical Services to alter the above programme of dates according to circumstances, keeping in view the need for allowing sufficient time to candidates to apply for the application forms, after the announcement of the examination results, and to secure the several documents to be produced. The applications are to be made to the Principals of the Osmania Medical College, Hyderabad and the Guntur Medical College, Guntur ,for the respective areas. Rule 25 of the Telangana and Rule 22 of the Andhra Rules reserve a power to the State Government to amend or alter the rules in the respective areas from time to time.

11. In accordance with these rules, prospectus was issued calling for applications for admission to the M. B. B. S. Course. In respect of the Telangana area, the notification as published on 18-6-1966 calling for applications and the last date for receipt of filled-in-applications was, fixed as 30-7-1966; while for the Andhra area, the notification was published on 22-6-1966 and the last data for receipt of filled-in-applications was 25-7-66. For the Andhra area the time was extended for receipt of the applications upto 30-7-66, then upto 10-8-66 and finally upto 16-8-66 Similarly for the Telangana region also, these dates were extended to 10-8-66 and finally to 16-8-1966 During these extended dates of the last date for receipt of filled-in-applications, the Government issued a G. O. Ms No 1880 Education dated 29-7-1966. making reservation of 20 per cent of the seats to the backward classes and 3 per cent for physically handicapped Based on this G. O. the Telangana rules have been amended by G O. Ms No. 1784 Health and the Andhra Rules by G O Ms 1783. Health dated 2-8-1966. In the amended rules, however, reservation for physically handicapped were not provided for.

12. It may be pointed out that in so far as reservations for backward classes in the Telangana area is concerned, the proposals have to be submitted to the Telangana Regional Committee for consideration, under the Andhra Pradesh Regional Committee Order, 1958. which came into effect on 1st February, 1958. inasmuch as regulation of admission to the educational institutions in the Telangana region is one of the scheduled matters, the Regional Committee has power, to consider and pass resolutions recommending fo the State Government any legislative or executive action. This, it is stated, has been done, and the draft order relating to reservation for Backward Classes, met with the approval of the Committee, which met on 25-7-1966. The Committee, after considering the Government Order proposed to be issued with regard to certain concessions to the backward classes in the State in the matter of admissions to Colleges, recommended inclusion of the communities of 'Passi' and 'Munnur Kapu' (Telagu) in Telangana as items 111 and 112 respectively in the list of Backward Classes annexed to the draft C. O., and also to add 'Mudiraj' as item (55) of the list. This is apparent from a communication issued by the Secretary to Government, Legislature Department, to the Deputy Secretary to Government, General Administration (RC) Department, contained in a D. O. letter No. 536/RC/ 66-3 dated 25-7-1966 After complying with the recommendations of the Regional committee, G. O. Ms No 1880 Education dated 29-7-1966 was passed, and 350 copies of the list were placed before the Legislative Assembly and 150 before the Legislative Council; shortly before the G. O. was issued

13. In this batch of the writ petitions the validity of the G. Os. making reservations and the rules made thereunder, has been challenged in some or other of them and as such, we will state the basis of the challenge to these reservations and consider them accordinglv.

14. The first attack is upon the division of the respective areas into Regions as provided in Rule 6 of the Telangana and Rule 7 of the Andhra rules. It is averred that these rules are opposed to the fundamental rights guaranteed under Articles 14, 15, 16 and 19(1)(8) of the Constitution, being unreasonable and without any nexus between the basis of the classification and the object sought to be achieved and that by reserving some seats for each region, students who set a certain percentage of marks in one region may not be able to get a seat, while students who set equal or lesser percentage of marks in a different region may be able to get, which would amount to a total denial of equal protection of laws guranteed under Article 14 of the Constitution. It is also urged that the division into regions is wholly unreasonable and is based on an arbitrary classification, inasmuch as candidates who apply for seats study mostly either in the Andhra University or in Sri Venkateswara university, which have more or less a uniform standard of education, and even those who study in other Universities would have undergone a similar educational test. Instead of selecting them on a uniform basis in our group, they are selected on the basis of region to which they belong, discriminating candidates in the different regions, which is a complete and total denial of equality of law and equal protection of laws, guaranteed under Article 14. It is stated that there is no conceivable basis for the division, nor is the idea that the majority of the persons who qualify themselves for the M. B. B. S., degree will settle down in their native districts and practice there is supportable by evidence. On the other hand, the overwhelming majority of medical graduates join Government service, subjecting themselves to transfers throughout the State and not merely in the region to which they belong. This arbitrary division, It is further contended, is opposed to the idea of oneness of the State, as It is based upon the place of birth but not on the residence, as is evident from the relevant G. Os.

15. Mr. Chowdari relies on a decision of Vaidialingam, J. in Jacob Mathew v. State of Kerala, : AIR1964Ker39 , as supporting this contention of the petitioners that the regional division offends Article 14 of the Constitution, That case related to admission to the medical and engineering colleges in the State of Kerala where the basis of allotment of seats was made to depend upon the population of an area and district-war It was argued that though some sort of equitable distribution can be arranged for. on the basis of the student population of an area, or the number of educational institutions existing in that area, or on the basis of the number of applications from a particular area, having due regard to the actual number of marks obtained by them, the principle adopted for making selections on district-war basis is absolutely unreasonable; nor is there any justification in the State Government's contention that was done so. to enable the various territorial divisions of the State which are unevenly developed, from the point of view of educational attainments and standards and to ensure a fair and equitable distribution to all the territorial divisions of the State, so as to allow those territorial divisions to attain the same level in the field of 'duration:

16. These contentions were controverted by the State Advocate-General, who urged that nobody is discriminated on the ground of place of birth, and therefore Article 15(1) is not violated, that if at all, residence is adopted as the test, and residence does not come under one of the prohibitive categories either under Article 15(1) or under 29(2) and in am case, discrimination on the ground of residence is specifically referred to in Article 18(2) that inasmuch as residence is a significant omission in Articles 15(1) and 29(2), there was no question of their being violated, and consequently no fundamental rights guaranteed to the petitioners therein can be considered to have been violated by the adoption of district-war selection.

17. The learned Judge (Vaidialingarn, J.) while conceding that classification on the basis of residence can be adopted as seen from the decision in D. P. Joshi v. State of Madhya Bharat, : [1955]1SCR1215 distinguished a Division Bench case in Joseph Thomas v. State of Kerala, : AIR1958Ker33 , which held that distribution of seats between Malabar and Travencore-Cochin in the ratio of 5:8 for admission to Engineering and Medical Colleges did not contravene Articles 14, 15(1) or 29(2) of the Constitution, and observed at page 67: As I have already indicated that residence and place of birth are two distinct conceptions with different connotation both in law and in fact, and that Article 15(1) cannot be read prohibiting discrimination based on residence.' Nonetheless, it was pointed out that Division Bench had sustained the regional distribution on certain criteria, namely, that Malabar was not having the same facilities for medical educations as those obtaining in Travancore-Cochin area, that a medical college was started in Kozhikode only in 1957, as such the students in Malabar area were under severe handicap regarding education in medicine, and that there was a crying need for more doctors in the Malabar area, and that the Government, therefore felt that the only way to ameliorate the condition in the Malabar area was to distribute seats in the Medical Colleges in the Kerala State in the ratio of 5:8 between Malabar and Travancore-Cochin, which stand was accepted by the learned Judges of the Division Bench. In view of this, Vaidialingam, J. thought that unless some such requirement, laid down in that decision, is not satisfied the classification will have to be struck down. A judgment of this Court in Muralidhar v. State of Andhra Pradesh, : AIR1959AP437 was referred to in respect of allocation of seats between Regions I and II., viz., 30% to students of Secunderabad and Hyderabad and 70% in the rest of the Telangana area, but was also distinguished on the ground that the college facilities and student copulation justified it. But in so far as district-war allotment was concerned the learned Judge thought that the selection was certainly not based upon any scientific data collected, either regarding the student population of a particular area, or having due regard to the educational backwardness of a particular district concerned.

18. Whatever may have been the justification of that decision, which must be construed in the light of the facts and circum-stances of that case, as evident from the material placed before the Court, we must rely on decision of this Court, particularly of Division Bench decisions, which have held such classification to be valid, as not offending any of the provisions of the Constitution. The first case to which we may refer is a decision of a Division Bench of the Andhra High Court consisting of Subba Rao, C.J. (as he then was) and Bhimasankaram, J., in Writ Petition No. 420 of 1955 D/- 19-8-1955 (Andhra), which unfortunately, not having been reported in any of the law journals, might have encouraged the petitioners to raise this point. In that case also, a similar question arose, in respect of the very same regions, consisting of the same districts in each region as the ones which we are now considering, and seats alloted on population basis. The certificates which are required for qualifying any of the candidates applying from the regions were based on Nativity, i.e., residence in a particular district forming part of one of other of the different regions. As in the case before the Division Bench, as also before us, 10 years residence immediately proceeding, 1st January last, exclusive of the period spent in any other district or districts by the candidate for his studies with his parent while the latter was employed in Government, service, or was engaged in any occupation, trade, business, or profession, which would make the candidate a native of that district, or that the parent of the candidate for admission resided in the district for a total period of ten yean immediately preceding the 1st January last exclusive of the periods spent by the said parent in Government service or in any occupation trade business, or profession in any other district or districts, and would, consequently be a native of that district. Where the 10 years residence of a candidate in any particular district cannot be certified, the district in which the candidate or his parent resided will be taken as the district to which the candidate belongs, provided he is a citizen of India and that either he or his parent resided in that district for a total period of 10 years. The Bench considered the counter-affidavit of the Secretary. Education Department that the certificate prescribed exclusively referred to the place of residence and where the place of residence of a candidate in any one place is for a short period due to extraneous causes, the residence of his father is taken into account. Subba Rao, C. J. (as he then was) accepted the statement of the Secretary of the Education Department, and held that there was no discrimination made on the basis of place of birth within the meaning of Article 15(1) of the Constitution nor was any fundamental right conferred thereunder was infringed Even the contention based on Article 14 was negatived, accepting the statement of the Secretary of the Education Department, that the classification of the State into three regions was made to ensure that People from Education-ally backward areas are given opportunity to get admission in the Medicial College, and equality of opportunity between the various regions in the State, so that pupils from tame districts may not monopolise all the seats. In this connection, it was observed:

'The object of the State was to provide medical personal for the entire State. Apart from the few doctors who are employed in the Government service, the rest will have to take to private practice. It is reasonable to expect that doctors ordinarily will settle down for private practice in places to which they belong. Therefore, for the purpose of equitable distribution of the personal throughout the different parts of the State the residential qualification was fixed. With that object, the State has been classified into three regions having regard to the comparative backwardness from the standpoint of medical education. When the State, for achieving the aforesaid object, classified the State into three regions on the base of the backwardness of these regions from the stand point of medical education. I cannot say that either the classification is arbitrary, or, it has no rational relation to the object sought to be achieved'

The other learned Judge. Bhimasankararn J., In a separate Judgment, agreed with this conclusion, and held that there was no discrimination so far as he could see on the ground of place of birth of the candidates. The learned judge proceeds to state: 'The primary test, is seems to me, is only one of residence. Therefore, the G. O. does not come within the mischief of Article 15(1)'. The learned Judge further held that the classification was rational and that there was nexus between the object intended to be achieved and the classification, and so it did not offend Article 14.

19. We have already referred to AIR 1659 Andh Pra 437 (supra) while considering the decision of the Kerala High Court. That was also a case where the division of Telangana into Regions I and II was sustained as valid and not offending any of the Constitutional provisions.

20. The next case is Ramakrishna v. Osmania University (1961) 2 Andh WR 385--(AIR 1962 Andh Pra 120) that case also dealt with the division of Telangana region into Regions I and II. much in the same way as is sought to be challenged before us in respect of the very same regions. In that case, Rule 6 of the Rules For Admission of the Osmania University prescribed the place of residence and not place of birth. It was held that place of birth and place of domicile are two different concepts each with different import the first bearing on the place where the candidate is born while the other relates to the place where the candidate or his parents reside; that the place of birth is not synonymous with place of domicile and the prohibition enacted in Article 15 of the Constitution is the discrimination resting on place of birth whereas in the offending rule the discrimination rests on the place of domicile and that hence, it could not be posited that the rule in question offends against the principle embodied in Article 15. It was also held that there is nothing unreasonable or discriminatory when persons belonging to different regions of the same state are required to prove domicile in a particular region; that there is a reasonable relation between the classification and the object of the rule, namely, giving educational facilities and encouragement to the students of the region known as 'Telangana', and that, therefore, the impugned rule is not open to attack as being violate of Article 14. Support was drawn from the observations of their Lordships of the Supreme Court in : [1955]1SCR1215 (supra), Chandra Reddy C. J., delivering the Judgment of the Bsnch observed at page 389 (of Andh WR) = (at p. 123 of AIR):

'As has been repeatedly pointed out by the Supreme Court, in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that there must be a nexus between the basis of the classification and the object of the legislation under consideration It is also well recognised that the classification may be founded on different bases, namely, a geographical or according to objects or occupations or the like. Could it be said that the tests propounded have not been satisfied in this case? There can be no dispute that the classification in this behalf rests on the residence of the applicants or their parents. Thus it is geographical. There is also a classification based on occupation, namely, sons of officials working in the twin cities of Hyderabad and Secunderabad on the one hand and others on the other. Such classifications are permissible under Article 14. Hence it can be safely postulated that the classification is reasonable'

21. One of us in Sukhdev v. Government of Andhra Pradesh 1966 (1), Andh WR 294 (decided on 27-9-1963) had again to consider this very question raising the very same contention in respect of the reservations. At page 31) it was observed: --

On the second point, several judgments of this court have held that the division into regions cannot be said to be based on any irrational basis or without any nexus between the clasification and the purpose of the enactment, particularly, when the number of seats have been allotted in accordance with the population in each region it is a reasonable classification and the question, in any view is not res integra '

22. Thereafter once again the same objection was raised before our learned brother Chandrasekhra Sastry. J. in W P No. 1204 of 1965 D/- 1-12-1965 (A. P.) Before him it was contended that the considerations which prevailed earlier in holding that the regional distribution is valid, did not prevail that year, which contention was, in our view with great respect properly, rejected. The Learned Judge followed the judgment of the Bench, to which we have earlier referred, viz WP No. 420 of 1955 Andhra decided by the Andhra High Court. The distinction sought to be made on the ground that two more medical colleges, one at Kurnool and another at Tirupati. were established, did not find favour with the learned Judge, as it could not really affect the question. We are satisfied that the classification into region in both the Andhra and the Telangana areas is not based on birth but on the other hand, based on residence and residence alone. In this view, the regional distribution of seats does not offend the fundamental rights guaranteed in any of the Articles of the Constitution, to which reference has been made.

23. Mr. Rama Sarma in WP No. 1334/66 contends that the basis of population will work hardship and is discriminatory, because all the four districts in Region II are thickly populated districts and that the reservation based on the population according to the last Census cannot stand. We fail to understand how there can be a question of discrimination, because if Region II consists of 4 thickly populated districts, it is bound to get more seats allotted to it in accordance with its population. Nor can we understand how else the population of the four districts be determined except on the basis of the last Census.

24. It is also argued for the petitioners that the division of the State into regions cannot, in view of Kharak Singh v. State of U. P., 1964 (2) SCJ 107-AIR 1963 SC 1205 be effected by an executive order. It can be done only by legislature, which alone is competent to do it. This argument is based on the interpretation of Article 21 which says that no person shall be deprived of his life or personal liberty except according to procedure established by law We shall, however deal with the content of the word 'liberty' occurring in that Article as extending to educational institutions and intellectual freedom, when we deal with the validity of the backward class reservation. But suffice it to say for the present in so far as this contention is concerned. that their Lordships of the Supreme Court in M. R. Balaji v. State of Mysore, : AIR1963SC649 while dealing with a similar contention that a special provision, which the State of Mysore has made under Article 15(4), cannot be made by an executive order, but only by legislation, observed at page 658:

'This argument is equally misconceived. Under Article 12. the State includes the Government and the Legislature of each of the States, and so, it would be unreasonable to suggest that the State must necessarily mean the Legislature and not the Government. Besides, where the Constitution intended that a certain action should be taken by legislation and not by executive action, it has adopted suitable phraseology in that behalf. Articles 16(3) and (5) are illustrations in point Both the said sub-clauses of Article 16, in terms, refer to the making of the law by the Parliament in respect of the matters covered by them. Similarly, Articles 341(2) and 342(2) expressly refer to a law being made by Parliament as therein contemplated. Therefore when Article 15(4) contemplates that the State can make the special provision in question, it is clear that the said provision can be made by an executive order '

To the same effect is a decision of a Bench of this Court in : AIR1959AP437 (supra). The very same contention was also raised by Mr. Chowdary in 1966-1 Andh WR 294 (supra) that the protection envisaged in Clause (4) of Article 15 can only be regulated by a law and not by executive action, on the basis of several American decisions in support of the proposition that education comes not under the process, but under the equal protection clause and that it is also one of the facts of liberty and if so. it must be regulated by a law. There also one of us (the Chief Justice) had negatived the contention based on the observations in Balaji's case, : AIR1963SC649 (supra) and it was held that under Article 15(4) the State can make special provision by an executive order.

25. It is not contended that the reservation of 3 seats and 5 seats in the Telangana area and Andhra area respectively, for nominees of the Government of India is unconstitutional. It was sought to be argued by the several learned Advocates for the petitioners that this facility afforded to nominees of the Government of India, in many cases, benefited the applicants of this State who had failed to get seats under any of the other reservations or on merit. Apart from there being no material placed before this court to warrant such a conclusion, a reading of the Rule itself will negative such a possibility The seats that are reserved for candidates selected by the Government of India are available only for candidates outside the State of Andhra Pradesh so that there is no possibility of any one of the candidates within the State, who having failed to obtain a seat under the Rules, getting the benefit of this reservation. We do not think that there is any semblance or validity for the suggestion that this reservation is only a guise for conferring favours upon persons who have failed to secure seats in accordance with the Rules. The Rule as at present stands, can give no room for complaint. The reservation, as appears from the counter of the Assistant Secretary Health Department, has been made because the Central Government gives considerable financial assistance to the State, in particular for medical studies. The reservation does not offend any of the Constitutional inhibitions in our view, it subserves the purpose and policy to further national Integration and also provides opportunities for children of Indian origin who, either due to their love for the country of their origin or because of their not being properly treated in the land of their adoption, wish to study in this country, and further it enables the Central Government to better international relations by providing for exchange of students and affording facilities to children of other nationalities. There can be little doubt about the wisdom of this policy and the classification made not only in regard to the medical colleges of this State but uniformly in other States as well, cannot be held to be violative of Article 14 nor can it be said to be unreason able.

26. (sic) similar reservation made for students coming from other States, Cultural Scholars of Indian origin domiciled abroad, Colombo Plan Scholars, students of Indian origin migrating from Burma, students from Asian and African countries and Union territory students made under the Mysore Rules, was attacked but a Bench of the Court of that State in Subhashini v. State of Mysore, AIR 1966 Mys 40 held it to be based on lawful State policy and not violative of Article 14 nor was the reservation made in favour of Goa students could be attacked on the ground that it was a political gift made with a view to woo the Goans to join that State. Assuming it to be so. Hegde. J (at page 45) said

'They are made with a view to exchange students and to the extent possible to break the barrier of caste, religion and region. Classification based on lawful State policy is not violative of Article 14.'

27. The reservation obtaining in the Andhra area for students of southern States is impugned on an additional ground that from last year the southern States have 'withdrawn reciprocal facilities given to the students of this State and that this is the only State giving such facilities The contention of the learned Advocates is that this is discriminatory against the students of this State, inasmuch as it is said the expenditure 'on the education of the subjects of Andhra State (is) to the detriment and exclusion of its own subjects' It appears to us somewhat incongruous and unfortunate that the citizens of this country who are Indian citizens throughout the States of India, are treated or termed as subjects of other States as If other States of the Union are foreign States We cannot countenance such an argument and in dealing with this matter objectively, we must emphasise that facilities afforded to citizens resident in other States can never offend or affect the constitutional validity nor be termed as an unwise or unreasonable State policy. In matters of education, as in many other matters, it will be fatal for any State in the Union to think in narrow terms and become exercised merely because other States have not given reciprocity. The learned Advocate-General pleaded for sustaining this reservation. There is here, in our view, no discrimination against any race, religion or caste and if the State of Andhra Pradesh has given facilities to the students of the southern States, notwithstanding the withdrawal of that facility to the students of the Andhra Pradesh State, it does not make the policy any the less unwise. If at all it is generous and broad in outlook, and is designed ultimately to induce other Stales to reconsider the question of granting reciprocal facilities It is, however, for the Government of this State to decide whether to continue this reservation In future, if the other southern States still refuse to afford reciprocal facilities.

28. The 30 per cent reservation for women candidates also has been challenged and the ground that it is meant for those who cannot come up in open selection and that the procedure sought to be adopted by the Government in bringing all women candidates into the reservation quota without there being tested for open selection is uncalled for and unwarranted under rules and is therefore, illegal. This contention ignores the provisions of Article 15(3) which is an exception engrafted to Clause (1) of the said Article, which provides that nothing in that article shall prevent the State from making any special provision for women and children. In view of this specific provision, that reservation cannot be assailed. Further, the reservation is a general one for the class as a whole and the rule is so designed as to take into account women candidates who have secured seats under the other valid reservations as well as on general competition in merit pool. Nothing has been urged to show what provision of the constitution this reservation offends. While dealing with a similar contention in 1966-1 Andh WR 294 (supra) one of us (the Chief Justice) had held that this reservation could not be impugned. It was there held that reservation for women, sportsmen, etc. all admit general categories and do not confine them to any particular class or caste; nor offend the provisions of Article 15(1) or Article 29(2) of the Constitution.

29. The provisions for admission of M. Sc and B. Sc. students in the 1st year and provisions for their admission in the II year In casual vacancies under Rules 11 and 12 of the Telangana and 12 and 13 of the Andhra Rules, it is submitted illegal. But we find tt difficult to appreciate this contention. It is argued that B. Sc. students who have earlier failed to secure seats on their P. U. C. or Multi-purpose performance are now given facilities to get admission. This argument would, in effect, mean that no B. Sc. or M. Sc. student, however, brilliant his performance may be, can ever hope to become a doctor. It cannot be gainsaid that students who might not have done well in schools hap fared better in Colleges, and vice versa. If this were not so. how is it that a considerable proportion of these candidates selected to the Medical colleges on the basis of competition and said to be the cream of students passing H. B. C. or P. U. C. In Biological Science in any particular year, nonetheless fail in the medical examinations.

Apart from this, M. Sc. or B. Sc. students will be in touch with Science subjects for a longer period than P. U. C. students and from out of them only first or second class students alone are considered and that too on the basis of their merit for admission to the integrated course Further M. Sc. and B. Sc. candidates who have obtained first or second class alone are given facility to seek admission to the second year of the Integrated M. B B. S. course subject to the condition that they pass Physics, Chemistry, Botany and/or Biology in the first year M. B. B. S. course before they are permitted to appear for the University examination at the end of the IIIrd year of the 6-years M. B. B. S. course. Selection to these casual vacancies for direct admission into the second year integrated M B. B S, course, is also to be made on merit basis. Mr. Adinarayana Reddy says that under the rules, mathematics graduates are also eligible which has no relevance to medical studies. We fail to understand this contention, because mathematics students are nonetheless Science students, and the condition in the rule is that they should complete the necessary Science subjects of the first year Integrated course.

30. Mr. Kuppuswamy in W. P. No. 139/66 contends that Note (1) in Rules 12 of the Telangana and 13 of the Andhra Rules has no application, inasmuch as there are no seats reserved under that rule. It may be stated that in the first of the rules, viz. 11 and 12 respectively reservation of 3 per cent has been made for M. Sc. and B. Sc. candidates in the first year of the 6 year Integrated course, while in the succeedding rules, provision has been made for these candidates who also seek admission for casual vacancies in the second year, subject to the conditions enumerated in Notes 1 and 2 are applicable to both these rules so, read, there will be no difficulty in construing them as indicating that the selections under this category will be made on merit and merit alone. Application of the rules relating the reservation for Scheduled Tribes and Scheduled Castes and women candidates to these admissions is prohibited. Notes (i) and (ii) in the Telangana rules are as follows:

Note (i) The reservations made in these rules separately for scheduled Castes and Scheduled Tribes and Women candidates will not apply to the reservation made under Rules 11 and 12 above.

Note (ii) Applications may be called for the 3 per cent of the seats reserved for B. Sc. and M. Sc. candidates under Rule 11, and a combined merit list shall be prepared. Out of this list, the required number of candidates will be selected in order of merit to the extent to which the number of casual vacancies are available. The remaining candidates will be considered against the 2 per cent seats reserved under Rule 11.

In our view, there is nothing in Article 15(1) or 29(2) which makes reservation for M. Sc. and B. Sc. students unconstitutional or otherwise illegal

31. Sri Ali Adil in W. P. 1521/66 contends that while the Government in their G. O. No. 1880 Education provided 3 per cent reservation for physically handicapped candidates in the professional colleges in the States for a period of 5 years they have withdrawn the reservation in the case of medical colleges on the ground that medical education requires a high skill of mental and physical faculties and that it is discriminatory, particularly having regard to the fact that similar reservation is made for candidates in Engineering College It was pointed out in our view with justification, by the learned Advocate General that the rules framed in accordance with the G. O are the only effective rules, that they made no such reservation for candidates who are physically handicapped and in the absence of such reservation, the petitioner has no claim for a seat: nor is it within the province of this Court to lay down particular qualifications, or the kind of disability which is permissible for declaring a person fit for pursuing medical studies

32. Mr. Bhooma Raju in W. P. 1537/66 has brought to our notice that while under Rule 4 (a) read with Appendix I of the Andhra Rules certificates were prescribed for N. C C. and A. C. C. nothing is stated as to the certificates required for admitting President's Scouts and Guides, that the petitioner has reached a high proficiency in President's Scouts and Guides and because of this omission, he is not likely to get a seat. The learned Advocate General quite frankly admitted that there is an inadvertent omission in Appendix I and asked this Court to give necessary directions, and accordingly, in so far as that writ petition is concerned, the Government is directed to amend Appendix I to prescribe the required certificate to give effect to Rule 4(a) of the Andhra and Rule 3(a) of the Telangana Rules

33. Mr. Ayyapu Reddy on behalf of the petitioner in W. P. 1373/66 complains that while the age of the Scheduled Caster for admission to the medical colleges is 24. the age for engineering college has been reduced to 21, which is discriminatory This contention, in our view has no basis, because what we are considering is not the comparative requirements of the various branches of education, but the requirements for medical colleges. The question of discrimination therefore does not arise

34. The reservation for H. S. C. (Multipurpose) and P. U. C. is also impugned, particularly in so far as the Telangana area is concerned. With regard to one-third reservation for H. S. C (Multi-purpose) and I. S. C. on the one hand, and 50 per cent reservation for P. U. C. on the other, it is contended that while the reservation of a minimum one-third of the seats for H. S. C. (Multi-purpose) and I. S. C may not work hardship, the reservation, however, of 50 per cent for P. U. C. would certainly work hardship. It is submitted that in Region No. 1. 74 per cent reserved seats are given to candidates belonging to the Multi-purpose as well as the P. U. C. strictly in the order of marks they secured, that since the majority of the candidates from Region I passed the Multi-purpose examination, almost all the seats are filled up by candidates enjoying reservation under other rules and who passed the Multipurpose examination, in the result that the other Multi-purpose candidates who cannot claim the reserved quota have, practically no chance of getting even a single seat in spite of very high marks secured by them. Mr. Babulu Reddy submits that consequently, merit has to go a-begging for seats, for even a H.S.C. candidate who secures 100 per cent marks will be eliminated for the simple reason that he came from a Multipurpose school. It is stated that as the petitioner in Writ Petition No. 1502 of 1966 obtained the highest number of marks in Multipurpose and the petitioners in W. P. Nos. 1511 and 1530 of 1966. who stood first in their respective schools, and the petitioner in W. P. No. 1531/66 who scored 75.23 per cent from the Multipurpose school, this reservation has placed merit at a discount so far as H. S. C. students are concerned. It is stated that reservation of 50 per cent seats for P. U. C. in Telangana area has only been made this year and was copied from the rules of the Andhra area without any reference to the basic facts in the Telangana area. It is argued that there is justification for this rule in the Andhra area, as it does not work any hardship in that area because there are only a few Multi-purpose schools, as against a number of Colleges providing for Pre-Uni-versity course. But in the Telangana area, slnre the P. U. C. candidate? represent only one-third of the total number of eligible candidates, fifty per cent reservation for P. U. C., it is contended, is clearly discriminatory and violative of Articles 14 and 29(2) of the Constitution.

35. In so far as the Andhra area is concerned, Mr. Y. G. Krishna Murty appearing for the petitioner in W P No 1364/66 contends that the H.S.C. (Multi-purpose) and P. U. C. examinations are of the same standard and equivalent and consequently any reservation specifically for candidates who pass in the latter examination is illegal and invalid under Article 14 of the Constitution. The argument of the learned advocate is based on the premises that the H.S.C. (Multipurpose) examination is much more difficult and as such it is difficult to score higher marks in it when compared to the P. U C. examination. In support of this, he cited a judgment of a Bench of this Court in Gullapalli Nageswara Rao v. Principal Medical College Guntur. 1962-1 Andh WR 60 = (AIR 1962 Andh Pra 212), That was a case in which the P. U. C. candidates had challenged the reservation of one-third seats for the Multi-purpose. It was contended that the seats available for the general pool is thus reduced and candidates who secure more than 75 per cent marks alone can get admission that candidates who get less than that percentage of marks have no chance of being admitted. In considering this contention, it was held that none of the Articles viz., 15, 16 or 29 come into play because the alleged discrimination is not based on any of the grounds set out in those Articles, and that the matter can only be considered under Article 14 for which two conditions have to be satisfied to pass the test of reasonable classification. It was pointed out that the scheme evolved by the Government of Andhra Pradesh and the Government of India was to replace the Pre-University Courses by the Higher Secondary Certificate Courses by a gradual process and in furtherance of this policy, they were converting the Higher Secondary Schools into Multi-purpose Schools, the examination of which has two extra subjects, viz., Hindi and Mathematics, which are not compulsory in the P. U. C. in the Biological Sciences Group. Further the candidates appearing for the Higher Secondary Certification Examination are examined in courses covering a period of four years from IV Form to VII Form while the examination of the P. U. C. candidates was confined to the subjects taught in one year. Further it was urged in that case that there is a fixed condonation formula for Higher Secondary students whereas for the P. U. C. candidates of Examiners, In these circumstances, it was held that there are possibilities for the moderation of marks is done by the Board P. U. C. candidates to secure a higher percentage of marks in the optional subjects than the Multi-purpose candidates. It is on this basis that the one-third reservation was upheld. It is, therefore, urged on the basis of this decision that the fifty per cent reservation for the P U. C. Is discriminatory particularly when in the Telangana area the number of students taking the P. U. C examination is less when compared to the Multi-purpose or H S C.

36. We had asked the Advocate-General to give us figures of the number of candidates who pass in both these examinations in Biological Sciences, and he has informed us that while 4932 candidates passed in the Multi-purpose. 2268 passed in the P. U. C. examination in the Telangana area. While the proportion of the successful candidates in the examinations in each category may be a criterion to be taken into consideration, we are not however, in a position to evaluate the comparative merits of those two examinations or the curricula. It is difficult to consider the marks spread over a period of four years. The fact that P. U. C. candidates have to take two public examinations, one at the Matric stage and the other at the University stage has not been taken into consideration in comparing the standards of both these examinations. In any case, during the course of the argument, the learned Advocate-General stated that the Government were aware of the rule working to the detriment of the Multipurpose candidates who have obtained high marks, and were, there-lore, amending the rule, which assurance in fact had been translated into action before the conclusion of the arguments, by amending the relevant rules through G. O. Ms. 2216 and 2217 dated 24-9-66 for the Telangana area and the Andhra area respectively where-under the H. S. C. and P. U. C. candidates in each of the reservations are to obtain seats in the proportion of 33 1/3 per cent and fifty per cent, that after the respective quotas of 33 1/3 per cent of H. S. C. (including I. S. C.) and fifty per cent for P. U. C. candidates have been selected, the remaining candidates in categories (i) to (iv) relating to Scheduled Castes, Scheduled Tribes, Backward Classes, and Women Candidates respectively shall be selected from a combined merit list of the candidates possessing H. S. C. (including I. S. C.) and P. U. C. qualifications

37. The explanation to the amended procedure set out in Rule 17 says that in case, the H. S. C. (including I. S. C.) or P. U. C. candidates are not available for selection upto the percentage of seats reserved for them under Clauses (i), (ii), (iii) and (iv), the deficiency shall be made up by selecting P. U. C. or H.S.C. (including I. S. C.) candidates of the same category as the case may be. Thereafter Sub-rules (v), (vi) and (vii) of Rule 17 provide that candidates possessing the H. S. C. (Multipurpose) (including I. S. C.) or equivalent qualification or candidates possessing the P. U. C. qualifications shall be selected to the extent of the percentage of seats reserved respectively, for each of them after deducting the number of such candidates already selected under Clauses (i), (ii), (iii) and (iv) referred to above and then after deducting the number of candidates already selected under Clauses (iii) to (vi) and also after deducting the number of candidates selected under other special categories like B. Sc. N. C. C. etc. from the total number of seats available for the region concerned, the remaining seats shall be filled up by selecting the candidates strictly in the order of merit, Irrespective of the qualifications they possess or the category to which they belong. The illustrations given on the basis of 100 seats in respect of each category makes the working out of the amended rule quite clear.

38. The learned advocates for the petitioners were satisfied with the working of this rule and any lurkine doubt they may have has been clarified by the learned Advocate-General that the 33 1/3 per cent reservations in favour of the Multipurpose and I. S. C., on the one hand and fifty per cent to the P. U. C. on the other, according to the amended G. O., is also applicable to the sixteen and two-thirds merit pool in respect of the Sub-clauses (iv) to (vi) of the illustration. Further the note after illustration (iv) does not affect the general pool i.e., the merit seats in illustrations (v) to (vii) as indeed it cannot as it is a note appearing after illustration (iv), and cannot, therefore, apply to the subsequent illustrations viz., (v), (vi) and (vii). In view of the amendment to the rule, there is no need to further consider the challenge with respect to the Multipurpose and P. U. C. reservations. Further, for the same reasons, even the basis that both the examinations are of equal standard as contended by Mr. Y. G. Krishnamurty, cannot be a factor which can be taken into consideration in declaring the reservation to be invalid as being discriminatory of Article 14 of the Constitution.

39. The main attack is upon the validity of the G. O. Ms. 1880 dated 29-7-66 on the basis of which Rules 4-A and 5-A in respect of the Telangana and Andhra areas were framed. The learned advocates for the petitioners contended inter alia, (1) that the G. O. Ms. 1880 on the basis of which these Rules were framed reserving 20 per cent of the seats for backward classes, has no retrospective effect and is inapplicable for admission to Medical Colleges for the year 1966-67, (2) that the Government is estopped from considering the applications of backward class candidates, (3) that the G. O., and the rules are invalid by reason of their not being published in the Gazettee. (4) that the Telangana Regional Committee has not approved of Rule 4-A of the Telangana Rules and as such it is invalid; and (5) that the backward classes enumerated in Annexura to the G. O., and the rules violates the Constitutional inhibitions and the fundamental rights guarenteed to the citizens

40. In respect of the first point namely that the G. O. has no retrospective effect, it is contended that it was issued after the last date of admissions, and as such it cannot affect the selection of the candidates who applied by 26-7-66. The operation of the G. O. itself, as is stated therein, is for five years from the date of the G. O. It is however, contended by the learned Advocate-General that before the final date of the admissions arrived, that date has been extended as already seen in exercise of the powers reserved under Rules 25 and 26 respectively of the Telangana and Andhra Rules which empower the State Government to amend or alter the rules from time to time, and as such, the G. O. and the rules made thereunder are effective But this is countered by the argument that the Government cannot, at any rate alter that date, as it precluded itself from exercising the powers to amend the rules in that regard. It is submitted that para 22 of the prospectus issued for the Andhra area stated that the last date and time for the receipt of filled in application fixed by the Principal, the Medical College, Guntur is 5 p.m on 26-7-66 and that date will not be altered on any account, It is also stated therein that applications received after the due date and time shall not be considered, and that postal delays cannot be considered as reasons for late receipt.

41. It is further contended that the Authorities in charge of admissions are precluded from what is called promissory estoppel to consider the applications filed after the last date on the ground that had the applicants known that 20 per cent backward classes reservation is going to be enforced, they would have applied to other colleges for admission which they are now precluded from doing.

42. We will dispose of these contentions before dealing with the constitutionality of the reservation. There is, in our view, no justification for contending that merely because the prospectus stated that the last date will not be altered on any account, the power reserved in the State Government to alter or amend the rules cannot be exercised. What in fact the Principal intended to convey to the applicants is that the last date which was fixed would not be altered for any reason as the candidates may want It to be altered, but it does not mean that the Government would be precluded thereby from exercising its power to alter that date. Rule 26 has been set out in para 22 of the prospectus. The rest of it is not part of the rule at all. The prospectus issued for the Telangana area, however, does not mention any such thing, even though Rule 25 of the Telangana Rules is similar to Rule 26 of the Andhra Rules. The prospectus issued by the institute of Medical Sciences, Osmania Medical College has reproduced Rule 13 of the Rules except that the tentative dates given in the rule have been changed in the notification in which the last date is fixed for the receipt of the applications. Under this Rule which corresponds to R. 14 of the Andhra Rules, the Director of Medical Services has been empowered to alter the above programme of Hates according to circumstances keeping mainly in view the necessity of giving sufficient time to the candidates to apply for the application form after announcement of the examination resuits end secure the several documents to be produced. This power was conferred on the Director of the Medical Services for the benefit of affording facilities to the candidates. The principal could not either limit this power by any note in the prospectus, nor could the Director of Medical Services preclude the exercise of the power by the State Government under the relevant rules referred to above, by adding anything thereto in the prospectus. We must, therefore, reject the contention that the mention in the prospectus with regard to not altering the last date is as good as a proviso restricting the power of the Government to alter the rules. If the last date for receipt of filled in applications could be extended, and in fact were extended as seen already, the persons who have already applied cannot complain merely because some others have been given a chance.

43. The next contention of Mr. Choudhry is that since the applications were called in on the basis that 248 seats were available for the general pool, the Government by amending the rules and reserving 20 per cent of the seats for backward classes, has withdrawn 107 seats in so far as the Andhra area is concerned, are estopped from giving effect to the backward class reservation for this year's admissions. Several cases have been cited before us in support of the proposition that the doctrine of estoppel at common law has since been developed and expanded to affect legal relations, but in our view, none of those cases, which are mainly English, have gone to the extent of enlarging this doctrine as creating a cause of action, though it may be used as a good defence.

44. In Lyle Meller v. Lewis and Co. Ltd., 1956-1 All ER 247 the Court of Appeal were considering the case of a company which by an agreement, consented to grant to the defendants the sole right of exploiting his inventions in return for royalties on every lighter and refill embodying his inventions. The plaintiff retained the right to determine the agreement and to exploit his inventions elsewhere if the royalties did not realise 2,000 a year Subsequently the defendants repudiated their liability to pay this sum and any further royalties in respect of lighters and refills which they had made on the ground that their lighters and refills did not embody the plaintiff's inventions. It was held that it was not open to the defendants to deny that the lighters and refills which they had sold embodied the plaintiff's inventions because in the words of Hodson. L J and Morris. L J

'..... the defendants were estopped at common law because they had by their conduct represented that the lighters and refills embodied the plaintiff's inventions and they intended the plaintiff to act on the representation and he had acted on it to his detriment, since he had refrained from ending the agreement and exploiting his inventions elsewhere '

Denning. L. J also held that the defendants had by their conduct given an assurance that the lighters and refills embodied the plaintiff's inventions and that they were liable to pay royalties thereon and. as it was intended that the plaintiff should act on the assurance and he had acted on it. the defendants could not, by virtue of what he called the new estoppel affecting legal relations, go back on their assurance were a representation of fact or of mixed law and fact or of law alone.

45. It may be stated that the defendants had taken a plea that the lighters and refills sold did not embody the plaintiff's inventions and the plaintiff has recourse to the doctrine of estoppel to combat that contention. The defendants denied their liability to pay any royalties as already stated earlier. The agreement between the parties was construed and it was held that royalties were payable under the agreement before the grant of letters patent. It was observed that the question of estoppel was raised only in reply after the defendants had specifically pleaded by amendment that royalties were not payable by them in respect of lighters and refills sold by them which were not protected by the claims

45A. Lord Denning said that the whole course of conduct by the defendants amounted to a clear assurance based on the following terms:

'We acknowledge that the lighters and refills which we are making embody your inventions and that we are liable to pay you royalties thereon.'

The learned Lord Justice thought that the plaintiff acted on that assurance and altered his position in this way that if it has not been Riven, he would undoubtedly have sought to exploit his inventions elsewhere. As it was he refrained from so doing. The question before Lord Denning was whether in the circumstances, the assurance was binding on the defendants. It was contended for the defendants that this course of a conduct amounted to only a representation of law and such representation did not give rise to an estoppel. But that contention was negatived by him in these words at page 250 of the report:

'I am clearly of opinion that this assurance was binding, no matter whether it is regarded as a representation of law or of fact or a mixture of both, and no matter whether it concerns the present or future. It may, not be such as to give rise to an estoppel at common law, strictly so called, for that was confined to representations of existing fact but we have got far beyond the old common law estoppel now. We have reached a new estoppel which affects legal relations'.

Again at page 251 it was stated that the plaintiff acted on that assurance, he altered his position on the faith of it, and it is binding on the defendants. They cannot now be allowed to go back on it, at any rate, not in respect of past lighters and refills on which they have acknowledged that royalties are payable. In Central London Property Trust Ltd. v. High Trees House Ltd., 1956-1 All ER 256 also Lord Denning have expression to a similar doctrine in those words

'There has been a series of decisions over the last fifty years which although said to be cases of estoppel, are not really such. They are cases of promises which were intended to create legal relations and which in the knowledge of the person making the promise, were going to be acted or by the party to whom the promise was made, and in fact been so acted on. In such cases the courts have said these promises must be honoured'.

Again after considering several cases which though apparently were cases of estoppel were not so ......it was observed:

'The time has now come for the validity of such promise to be recognised. The legal consequence, no doubt is that a promise to accept a smaller sum in discharge of a larger sum, if acted on, is binding, notwithstanding the absence of consideration and if the fusion of law and equity leads to that result, so much the better. At this time of day it is not helpful to try to draw a distinction between law and equity. They have been joined together now far over seventy years, and the problems have to be approached in a combined sense.'

In the above case, the landlords agreed to have a reduction in rent on certain condtions, and having accepted the reduced rent for nearly five years, resiled from it, and wanted to recover the original rent. It was held that the promise of reduction of rent being intended to be legally binding and having been acted on by the tenants, was binding on the landlords to the extent that they would not be allowed to act inconsistent with it although it is not a case of estoppel at common law. But the promise was for the reduction of rent as a temporary expedient while the block of flats was not fully or substantially fully let owing to the conditions prevailing and which means that the reduction of rent applied upto the end of 1944. In those circumstances, it was held that the landlords were entitled to full rent for the quarter ending September 29, 1945, and the quarter ending December 25, 1945, which were the amounts claimed in that action.

46. Both these cases, it may be stated, arose initially out of a contractual relationship and the subsequent attempt to resile therefrom on the ground of estoppel whether at common law or under the new estoppel was not permitted Lord Russel of Killowen commenting on the rule in Ramsden v. Dyson (1866) LR 1 H. L. 129, one of the leading cases on equitable estoppel, expressed a doubt in C. P. R. v. R. 1931 A. C. 414 at p. 429, whether this is an accurate phrase and whether estoppel in equity differs in any way from estoppel at common law. It was thought that estoppel at common law is a mere rule of evidence which prevents one party from contradicting some statement on the strength of which the other party has altered his position to his own prejudice, whereas estoppel in equity gives rise to substantive rights, in that it may operate to divest a party of title. Fortunately we have not been harassed in this country with the historical distinction between law and equity, based upon forms of action arising out of specified writs, to minimise the rigours of which equitable principles were called in aid. Even after there forms made by the Judicature Act in England, Professor Maitland could not help remarking: 'These forms of action we have buried, but they still rule us from the graves'. The doctrine of estoppel, as far as this country is concerned, is embodied in Section 115 of the Evidence Act. which provides as follows:

'When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.'

This section is based on equity and good conscinece and is grounded on the well-known rule in Pickard v. Sears, 1837-6 Ad and El 469 and comprehends a variety of intricate matters. It is, however, unnecessary to delve deeper into this aspect of the matter because in our view the application of the doctrine of estoppel does not arise on the facts disclosed by these Writ Petitions. The rules clearly empower the Government and the Director of Medical Services to alter the last date of receipt of applications in the exercise of which power those dates were altered. The applicants for admission are as much bound by the said rules as the Government and since the rules were amended before the extended last date for the receipt of the applications, there is no question of any estoppel, nor there is any question of any representation being made that the rules existing on the date of the calling in of the applications will remain unaltered till the last date. If so, the petitioners would be bound by the amended rules and no question of implied representation will arise.

47. In this connection, two cases of this Court may be cited one pro and the other contra for the proposition. In Kumari Akthar v. Admission Committee. : AIR1959AP493 implied representations were made that if a candidate satisfied the standard set up for selection of candidates for admission into Medical Colleges; it is not open to the authorities concerned to retract from it It was held that the principle of legal or equitable estoppel would apply to the case, and the authorities could not retract from the standard set up for selection The petitioner had made an application which satisfied the requirements of the rules, and she had also fared well at the interview. Consequent on the reorganisation of States in 1956. the State of Andhra Pradesh reserved 10 per cent of the seats available on 1-11-56 in Osmania and Gandhi Medical Colleges for students coming from the Marathwada area for a period of two years Meanwhile the State of Andhra Pradesh represented to the Union Government that the reservation made for the Marathwada area should be cancelled, and it was accepted by the Central Government. This happened after the interview of the petitioner by the Selection Committee but before the actual publication of the results. and the selections made were not even stated to be provisional. The petitioner did not apply for a seat in any other college where in all probability, she might have secured admission. She was permitted to apply for a seat in the Medical College at Aurangabad for which time was extended, but she was not successful. In these circumstances, it was held that the Govt was estopped from denying a seat to her. Notwithstanding the fact that the power to amend the rules or notifications, did not affect it, in that case the order withdrawing the concession was made some time after the selection. One other fact may also be stated which has relevance to the applicability of the doctrine of estoppel in that case. The reservation for students coming from Marathwada was made for a period of two years but it was withdrawn before the period expired, nor did the rules empower the reservation being withdrawn. It was held by the Bench following the decision in University of Madras v. Sundara Shetty, 1956-1 Mad LJ 25= (AIR 1956 Mad 309) that the principle of legal and equitable estoppel would apply in that case.

48. In 1962-1 Andh WR 60-(AIR 1962 Andh Pra 212) another Bench of our High Court was considering the effect of the deletion of a rule which prescribed that the candidates applying for admission to Pre-professional courses in Medicine from the categories of Multipurpose and P. U. C. students should pass the qualifying examination in one attempt. The argument on behalf of the petitioner was that he believed that selection would be made on the basis that the candidates who pass different subjects at different times would be excluded from consideration and, therefore, the petitioner did not apply to other medical colleges in the Andhra area the time for making Applications to which expired on 30-6-61. Secondly it was urged that the authorities concerned were stopped and precluded from amending the rule and enlarging thereby the field of eligibility. Chandra Reddy C. J. countered this contention and observed at page 66 as follows:

'We fail to see how on these facts there is any scope for invoking the doctrine of equitable estoppel. Nothing prevented her from applying to the other Medical Colleges in the Andhra Area. This rule did not create any obstacle in the way of her seeking admission in other colleges. No representation is alleged to have been made by the Government, which could have induced her to believe that she could be sure of a seat in that college or that candidates who have not passed in one attempt would be exclude from consideration. Moreover, the operation of the amendment is not restricted to the Medical College Guntur. It is applicable to all the colleges in the Andhra Area. The position is the same in this behalf in every college. Further, indisputably. Government is invested with authority to amend the rules from time to time, therefore, there is no restraint on the power of the Government to amend these rules. It should also be borne in mind that the rules preventing students who did not qualify for admission to the college by passing all the subjects in one attempt, had its life only for less than a week. In any event, we are unable to understand how the principle of equitable estoppel could have any application to this case. This argument is unsubstantial and does not deserve serious consideration. To say the least. It is utterly devoid of merits and has to be rejected '

We have therefore, the least doubt that the (facts in the writ petitions before us do not warrant the applicability of the principle of estoppel.

49. The argument that the G. O. and the rules are invalid by reason of their not being published in the Gazette is also in our view equally untenable. As we have already stated this G. O. and the Rules are not law and have not been issued in the exercise of any legislative authority nor did the State purport to issue them as such. These rules are executive instructions for the guidance of the Committee charged with the selection of candidates. There is no obligation or duty cast upon the Government to publish these orders before they come into operation. It is not denied that candidates for admission to the colleges were aware of these rules. In the circumstances, they cannot be impugned on the ground that they were not published. In : AIR1959AP437 (supra) a Bench of this Court consisting of Chandra Reddy, C. J. and Srlnivasachari, J., support this view of ours. We do not, therefore, think that the validity of the rules suffer by reason of their non-publication in the Gazette

50. It is contended by Mr. Upendralal Waghrey that in so far as Rule 4-A is concerned, it is invalid because the Telangana Regional Committee has not approved of the said rule even though G. O. Ms. 1880 making 20 per cent reservation for the backward classes was approved. This contention also in our view has little force because all that the Andhra Pradesh Regional Commit-tee Order, 1958 made by the President in exercise of the powers conferred by Clause (1) of Article 371 of the Constitution requires, as has already been noticed, is that the committee shall have the power to consider and pass resolutions recommendine to the State Government any legislative or executive action affecting the Telangana Region with respect to any scheduled matters, so however, that the executive action relates to general questions of policy and the legislative or executive action does not involve any financial commitment other than expenditure of a routine and incidental character it may be noted that the Regional Committee can only recommend to the State Government legislative or executive action affecting the Telangana region, and that too in so far as the executive action relates to general questions of policy. The scheduled matters include regulation of admission to educational institutions in the Telangana area vide item 4 of the first schedule. In furtherance of this order. Rule 164-M was added by the second schedule as a modification of the Andhra Pradesh Legislative Assembly Rules and which is in identical terms as Clause (7) of the order. The Government Business Rules are also likewise amended by the addition of Rule 8-A which says:

'The council shall normally give effect to the recommendations of the Regional Committee made under paragraph 7 of the Andhra Pradesh Regional Committee Order, 1958. in regard to any legislative or executive action affecting Telengana Region with respect to scheduled matters, but if the Council is of the opinion that it would not be expedient to give effect to any such recommendation or that the Regional Committee was not competent to make any such recommendation, the matter shall be referred by the Chief Minister to the Governor whose decision thereon shall be final and binding on the Council and action shall be taken accordingly.'

As can be seen, the aforesaid provisions do not require that any recommendation by the Regional Committee and approved by the Council of Ministers in regard to a policy decision affecting the Telangana area, when given effect to by rules, these rules must be again submitted to the Regional Committee for approval. If the rules so made do not give effect to the policy, the Regional Committee is not without power to take up the matter for giving effect to that policy.

51. The last remaining attack on the rules relating to the reservation for backward classes, which is none the less a formidable one, is that the Government have published the vary same list of backward classes which was struck down by one of us in 1963 by a Judgment reported in 1966-1 Andh WR 294 (supra) and thus violated the provisions of the Constitution, viz Articles 14, 15(1) and 29(2). on the same ground? as found favour with their Lordships of the Supreme Court in Balaji's case. : AIR1963SC649 (supra) as also with this court in 1966-1 Andh WR 294 (supra) It is said that this action of the Government also offends Article 26] because it has not given full faith and credit to the judgment of this Court

51A. Sri Narasa Ralu contend that the validity of the provision for the advancement of socially and educationally backward classes in Article 15(4) which is an exception to the guarantee under Articles 15(1) and 29(2) that the State shall not discriminate against any citizen on grounds onlY of religion race, caste sex, place of birth or any of them depends upon two fundamental criteria, both of which must co-exist viz (1) that the State Government which it, not pre-vented under Article 15(4) from makinig any special provision for the advancement of socially backward classes of citizens, must ascertain and base its conclusions on materials before it that these classes are not merely sociailv backward but are also educationally backward; and (2) that the reservation should be less than 50 per cent, though how much less cannot be said, which means that more than 50 per cent of the seats reserved should be considered on merit and merit alone, without any discrimination as contemplated by Articles 15(1) and 29(2). The first of these implies that caste alone is not the criterion but that there are certain other criteria which must be applied for determining social backwardness as well as educational backwardness. The criteria applicable in determining these classes should be based on statistical enquiry.

52. Mr. Choudari contends that the content of the word 'liberty' in Article 21 would take in fieedom to Ret admission to educational institutions, which guarantee under Article 21 is unfettered by any other consideration so that the reservation for backward classes is bad under that Article as well as under Article 19(1)(g). even if it satisfies Article 15(4).

53. Mr. Babulu Reddy, apart from adopting the submissions of Mr. Narasa Raju, contends that for the reservation to come within the exception of Article 15(4), it must be shown that the backward classes declared by the State are a little above, though not much more, in educational and social status than the scheduled castes and scheduled tribes, and that in any case, any such reservation must exclude the children of the advanced members of the socially and educationally backward classes. In other words, his formula for making reservation for backward class is that they constitute backward castes minus its forward members, which formula alone he says satisfies the test laid down by the Supreme Court that caste should not be the sole and dominant test and that social and educational advancement of the members of the caste is to be taken into consideration

54. We shall first deal with the argument of Mr. Chowdary that Articles 21 and 19 are infringed in making reservations for the Backward classes, in spite of the exception in Article 15(4) or 29(2), because each one of the fundamental rights conferred by Part III of the Constitution must be given effect to This contention seems to be based on the analogy of the Vth amendment to the Constitution of America, but as we have often pointed out it is not always appropriate to draw on American cases interpreting the American Constitution for an interpretation of the provisions of our Constitution. While our Constitution makers may have considered the interpretation of that Constitution in drafting our Constitution, they had to provide for the needs peculiar, to this country and the objectives which have to be achieved for ameliorating the conditions of the Rreat masses of our people who are socially, educationally and economically backward: for; otherwise, freedom would have no meaning. While the American Constitution is a concise document, couched in general terms, our Constitution is somewhat more specific and lengthy. The Chapter on the Fundamental Rights provided for freedoms embracing several aspects of life, such as, right to equality, right to freedom of speech, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to Constitutional remedies, under each of which the positive and the negative aspect were provided for, engrafting thereon such exceptions as are reasonable and necessary. When, therefore, under Article 15(1), the State was inhibited from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, or under Article 29(2) from denying to any citizen 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, it was positively permitttd to make special provisions notwithstanding anything contained in those Articles for the advancement of any specially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. These provisions having been made in respect of educational institutions, it cannot be assumed that the Constitution makers will again provide for these when guranteelng life or personal liberty of any person under Article 21, much less to take away by this guarantee what was positively permitted under Article 15(4).

The Vth Amendment of the American Constitution provides that 'no person shall be deprived of life, liberty or property, without due process of law', in the context of which as observed by Warren, C. J. in Boll-ing v. Sharpe, (1953) 98 Law Ed. 884, 'Although the Court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental obiective'. Quite contrary to this, the Supreme Court in Gopalan v. State of Madras. : 1950CriLJ1383 and in subsequent cases, has confined the words 'personal liberty' in Article 21 as applicable only to freedom from bodily restraint inasmuch as the word 'personal' is prefixed to 'liberty' which intended to confine the meaning of the word 'liberty' to personal freedom and not to intellectual or educational freedom. Personal liberty in England had always had a connotation that it is liberty and freedom of the body as distinct from the freedom of the mind or liberty of the mind. B. K Mukherjee, J., (as he then was) at page 96. if we may say so with respect, after a very learned and historical discourse, observed:

'In ordinary language, 'personal liberty' means liberty relating to or concerning the person or body of the individual and 'personal liberty' in this sense it the antithesis is of physical restraint or coercion. ..... It is in my opinion, this negative right of not being subjected to any form of physical restraining or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory'.

The learned Judge went on to point out that it was in accordance with the recommendation of the Drafting Committee that the word 'personal' was inserted before 'liberty' in Article 15 of the Constitution which now stands as Article 21; that in the report of the Drafting Committee, it is stated that the word 'liberty' should be qualified by the insertion of the word 'personal' before it; otherwise, it might be construed very widely so as to include even the freedoms already dealt with in Article 13 (which is the present Article 19); and that if the views of the Drafting Committee were accepted by the Constituent Assembly, the intention obviously was to exclude the contents of Art, 19 from the concept of 'personal liberty' as used in Article 21. It was also pointed out that the word 'liberty' standing by itself has beer. given a very wide meaning by the Supreme Court of the United States of America: that it includes not only personal freedom from physical restraint but the right to the free use of one's own property and to enter into free contractual relations; and in the Indian Constitution, on the other hand, the expression 'personal liberty' has been deliberately used to restrict it to freedom from physical restraint of a person by incarceration or otherwise.

The learned Judge further pointed out that apart from the report of the Drafting Committee, that is the plain grammatical meanine of the Expression. In : 1963CriLJ329 the provisions of Domiciliary visits in U. P. Police Regulations (Regulation 236 Clause (b) were challenged. The Majority consisting of Sinha, C. J., Imam, Rajagopala Ayyangar and Mudholkar. JJ. held that the word 'life' in Article 21 means not merely the right to the continuance of a person's animal existence but a right to the possession of each of his organs -- his arms and legs etc. Subbarao, J. (as he then was) and Shah J., who delivered the minority judgment observed that the right of personal liberty in Article 21 may be defined as a right of an individual to be free from restrictions or encroachments on Ms person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. In view of the authoritative pronouncement of the Supreme Court, it would be unnecessary to further examine this aspect of the matter or to consider the several American cases that have been cited by the learned advocates for the petitioners. In our view, there is no justification for the thesis that the word 'personal liberty' in Article 21 must be construed in the same manner as the American Supreme Court has done in considering the word 'liberty' in the V Amendment; nor can, we subscribe to the proposition that Article 211 negatives the exception in Article 15(4).

55. The provision to narrow down the guarantee in Clause (1) of Article 15 is the result of the Constitution First Amendment Act, 1951. which, by Section 2, added Clause (4). This amendment was a direct consequence of the decision of the Madras High Court, which struck down what is known as the Communal G. O. issued by the State of Madras fixing certain proportions in which students seeking for admissions to the Engineering and Medical College in the State should be admitted, as offending the Fundamental rights guaranteed under Articles 15(1) and 29(2) of the Constitution, which decision was affirmed by their Lordships of the Supreme Court in State of Madras v. Cham-pakam Dorairajan. : [1951]2SCR525 . During the discussion on this Bill, the Prime Minister said that his Government wanted to bring the words 'socially and educationally backward classes' used in Article 340 'bodily from there' to Article 15(4) -- Parliamentary Debates 1951. Third Session. Part Vol. XII Col. 9830.

56. Since this amendment, several attempts of the Mysore Government to make reservations for socially and educationally backward classes have been challenged and came up for consideration by the highest Court of which the two most important are : AIR1963SC649 ('Supra') and Chitralekha v. State of Mysore. : [1964]6SCR368 . A single Bench of this Court, after the Balaji's case, : AIR1963SC649 (supra) had also considered in September 1963 the validity of the Backward Classes G. O No. 1886 Health dated 21-6-1963 making reservations of seats in Government Medical Colleges, and the G. O. was struck down as being violative of Articles 16 and 29(2) of the Constitution, having been based solely on case, applying the criteria propounded by their Lordships of the Supreme Court in Balaji's case. : AIR1963SC649 (Supra) It is contended by the petitioners that the impugned G. O. and Rules 4A and 5A and the consolidated list of the Telangana and Andhra backward classes attached to the G. O., is the same as the one that was struck down on the previous occasion deleting (1) Kalarulu; (2) Oriya Backward classes and (3) Telagas and Kapus adding at the instance of the Telangana Regional Committee of two other communities, namely Passi and Munnur Kapu (Telaga) as items 111 and 112 respectively and the addition of Mudirai at item 55 in the list This list, it is stated has not altered the position as it existed at the time when G. O. No. 1886 Health dated 21-6-1963 was struck down: nor has the State taken into consideration any relevant data or material in preparing the list of Backward Classes

57. The learned Advocate General submits that the President had appointed a Backward Classes commission under Article 340 headed by Sri Kaka Kalelkar, to prepare a list of socially and educationally backward classes and that Commission in its Report interpreted the words 'socially and educationally backward classes' as relating primarily to social hierarchy based on caste and pointed out that such an interpretation is not only correct but inevitable and no other interpretation is possible' Vol. Ip-42. It may be pointed out that referring to the other backward Classes, the Commission stated that besides the scheduled castes and the scheduled tribes 'there were other communities, castes or social groups which were also backward socially and educationally; that no definite provision could be made for these social groups on account of paucity of Information regarding their backwardness and that it was thought necessary, therefore, to collect data regarding the conditions of these communities. The commission no doubt used 'classes' as synonymous to 'castes' and 'communities' and prepared a list of the other backward classes, by taking 'castes' as units. The Government of India, however, did not accept this Report. The difficulty in obtaining materials from Census reports as to the castes or communities, according to the learned Advocate General, became insuperable and insurmountable, as the Census of 1961. and for that matter even the earlier Census it is said did not give these details It is submitted by him that a class is not a conglomeration of similar individuals; therefore 'backward class' is not a conglomeration of backward individuals; that a backward class though not definite, must be a homogenous, identifiable class with either common occupation, common location, common disabilities and so forth: it must be a class of low grade of society as a class and not as a mere group of individuals suffering the same or similar disabilities. The backwardness must be social, educational and economic Applying this test, he contends that the Director of Social Welfare, who is an expert with respect to the states and backward conditions of socially and educationally backward classes, drew up a list in consultation with the Law Secretary, in accordance with the criteria given by him; that the Cabinet Sub-Committee considered this list and sent up their opinion to the Council of Ministers, that the Council of Ministers considered this and made alterations after applying the relevant criteria and that the final list having been placed before the Legislative Assembly, is according to the Government, a list of well-known socially and educationally backward classes Tn these circumstances, it is averred that this is a prima facie proof that the list includes socially and educationally backward classes, the burden of proof of which is discharged by the Government by placing the list before the Court after stating the factors as to how the list attached to G. O. Ms No 1880 Health, emerged. It is further stated that no one community in the impugned list has been attached by the petitioners as not being socially and educationally backward, except Munnur Kapus. In support of these several contentions the affidavit of the Chief Secretary to Government, as well as of the Director of Social Welfare, who was working at the time when the matter was considered by the Cabinet Sub-Committee, have been filed during the course of the arguments before us.

58. The learned Advocate-General has also filed an affidavit of the Manager of his Office attaching thereto, lists of candidates belonging to the backward classes in the several regions and the income of the parents or guardians of the candidates, to show that merit is not affected, and that children of economically well-to-do parents in the backward classes are not likely to obtain seats in this reservation under the guise of their being socially and educationally backward. It is also submitted that it is not a correct criterion to hold that merely because some members of the backward classes have secured employment and are economically well-to-do, their children cease to be considered as backward classes

59. Shri Babulu Reddy has filed an affidavit of the petltioner in W. P. No. 1530 of 1966 to counter the contention that the backward classes list does not contain some of the communities which are not really backward; and pointed out several communities which are not socially and educationally backward.

The prceedings of the first meeting of the Cabinet Sub-Committee on 14-5-1965 which is an enclosure to the affidavit of the chief Secretary, would show that the committe was initially of the view, that the criteria adopted by the State of Puniab for backward classes under Article 15(4) viz., (a) all citizens whose family income is less than Rs. 1000 per annum irrespective of the fact as to which caste, community or class they belong to or (b) all the citizens belonging to backward communities that are specially looked down by the people whose family income does not exceed Rs. 1800 per annum and are declared backward by the State Government, was more suitable for adoption in this State. The matter however was postponed because two members of the Sub-Committee, the Ministers for the Panchavati Rai and Co-operation were not present, and since full details were not before the Committee This meeting also decided to invite the law secretary and the Director of Social Welfare to the next meeting of the Sub-Committee After this on 31-?-1965 letters seem to have been written to the Chief Secretaries of Assam Bihar, Gujarat, Madhya Pradesh, Maharashtra Rajasthan, Uttar Pra-desh and West Bengal, calling for information as to the criteria adopted by each of those States for determining backward classes. But only the Governments of Mysore and Puniab seem to have given some particulars relating to Brant of scholarships. The Government of Kerala replied that the communities in that State, grouped as other eligible communities are treated on par with the scheduled castes and are made eligible for all educational concessions normally granted to scheduled castes pending inclusion of communities in the list of Scheduled Castes or Tribes by the President of India. The Government of Maharashtra replied that the report of the Committee appointed by that Government to review the question of recruitment of backward classes into Government service has not yet been published and that a copy of the report cannot therefore be supplied at that stage.

60. The Chief secretary in his counter-affidavit stated that the council of Ministers of Andhra Pradesh State pursuant to a resolution dated-17-2-1965, constituted a subcommittee to draw up lists of backward classes consistently with the provisions of the Constitution for, among other purposes, the purpose of admission of students to professional College On the invitation of the Cabinet Sub-committee, the Law Secretary and the Director of Social Welfare (who was joint secretary to Government Education (Social Welfare) Department) were present at two of its meetings. 18-9-1965 and 15-10-1965. The Cabinet Sub-Committee also directed obtaining of information from other states as to the action taken or proposed to be taken by them as to the criteria for determining backwardness and for drawing up lists of backward classes for the purposes of Articles 15(4) and 16(4) of the Constitution. After obtaining such information, the cabinet sub-committee directed that 'as per the advise of the Law Secretary, the Director of Social Welfare should take further action to cherk up lists of backward classes in the Andhra and Telangana regions, with a view to selecting from these lists of castes or communities which, apart from the point of view of caste are considered backward on account of the low standard of living education poverty, place of habitation, inferiority of occupation followed etc ' Accordingly the Law Secretary and the Director of Social Welfare considered the social and educational backwardness of the several classes and communities of citizens, on whose behalf several representations were being made to the Government from time to time for many years and the Director drew up the Lists and the priorities called for by the Cabinet sub-committee, which he did in consultation with the Law Secretary opinion on the legal aspect, dated 1-10-1965, was also submitted in writing to the Cabinet Sub Committee separately The recommendations of the Caninet Sub-committee were considered by the Council of Ministers on 4-7-1966 in which the Ministers considered the social, educational and economic conditions of the backward classes named in the lists submitted to them, dealt with each class, dealing with each community as a backward class (and as a caste, even if so styled in common parlance) deleted certain items or classes in the lists, like items 21, 26, 32 and 41 of Appendix 4 (b) of the lists placed before the Cabinet, changed the denomination of certain backward classes for the more precise effectuation of concessions to those classes only who really need them and consolidated the backward classes into one list, ruling out the priorities suggested by the Director of Social Welfare in accordance with the opinion of one or more ministers of the Cabinet Sub-Committee. It may be stated that the Chief Secretary himself did not speak from his personal knowledge as to the backwardness socially and educationally of each of the classes, but merely said that he was speaking to the facts to the extent of his knowledge thereof by reason of his presence at the meetings of the Council, although he was neither a participant therein nor was present at any meetings of the Cabinet Sub-Commitee.

61. A perusal of this affidavit, as well is that of the Director of Social Welfare, to which we shall presently refer, which are filed on behalf of the Government do not say what was the material placed before the Cabinet Sub-Committee or the Council of Ministers, from which we could conclude that the criteria laid down by their Lordships of the Supreme Court have been applied in preparing the list of backward classes. It is true the law Secretary in his written opinion, examined the legal position and stated that the classification of backward classes, which was formerly in force in the State, was made solely on the basis of caste, without reference to any other factor, and as such. It was given up as unconstitutional, He therefore, advised that the Cabinet Sub committee may direct preparation of the list of backward classes on the basis of the following criteria:-

(i) Poverty:

(ii) Low standard of education:

(iii) Low standard of living:

(iv) Place of habitation:

(v) Inferiority of occupation:

(vi) Caste:

The Director of Social Welfare at the very outset stated that in view of the practical difficulties involved in the classification of classes of citizens as backward classes of citizens for the purposes of Articles 15(4) and 16(4) of the Constitution and on the ground of avoidance of putting premium on 'mediocricy'' that it is enough if they had a list of the Scheduled Castes and the Scheduled Tribes and that there is no need to prepare a list of othet socially and educationally backward classes of citizens for the making of any special provision for the advancement of those classes under Article 15(4) and for reservation of appointments or posts in favour of such classes under Article 16(4).

61A. After this opinion, we are not able to ascertain whether any material, and if so what material, was placed before the Cabinet Sub-Committee, upon which the list of backward classes was drawn. On the other hand, it is stated that the Law Secretary and the Director of Social Welfare sat together and drew up a list, the former specifying the legal requirements and the latter as an Expert advising on the social and educational backwardness of class or classes. It may be observed that according to the Law Secretary's written opinion, the Director of Social Welfare at the very outset stated that there were practical difficulties in the classifica-tion of classes of citizens as backward classes of citizens for the purposes of Article 15(4) and 16(4). This view may have been the result of G. O. Ms. No. 301 dated 3-2-1964 which declared null and void the then existing list of other backward classes maintained by the Social Welfare Department, and therefore, nothing could have been done by that Department after September 1963, when the previous G. O. No. 1886 was struck down to collect any material or data in respect of any of the communities mentioned in that list. This G. O. (No 301 Edition dated 3-2-1964) after setting out the fact that in the list drawn up by the State Government, 145 communities, 85 in Andhra and 60 in Telangana, have been described as the other backward classes and after referring to the Backward Classes Commission's report and there commendations of the Chairman that acceptance of the Caste as a criterion of backwardness would be worse than the evil of backwardness itself recorded the minutes of the Chief Minister's conference that economic backwardness rather than community or caste would provide a more appropriate criterion for giving aid to individuals in matters of education including professional and technical training, which has in fact been done by some of the State Governments already and that it was agreed that all the states should move in that direction. As the Government of India decided not to draw up any All India list of Backward classes (other than Scheduled Castes and Scheduled Tribes) it left the discretion in the State Governments to choose their own criteria for determining backwardness The Government by this G. O. decided that the criterion for determining the backwardness should only be an economic one and should be applied to the individual family rather than to the whole caste, and directed that all assistance etc now being extended by the Social Welfare Department for the other backward classes be afforded to these economically weaker sections of the population, whose family income is below Rs. 1500 per year irrespective of caste or community The annual income limit of a family should cover the income of members of family as well as any amount received as a share from the joint family income. In view of this decision, the existing list of other backward classes maintained by the Social Welfare Department was declared null and void. This order was to take effect from 1-4-1964.

62. In his affidavit, the Director of Social Welfare states that after taking legal advice and ascertaining the criteria he satisfied himself from the knowledge or in formation that he had or that he could secure from books on castes, tribes etc., like 'Thurston's Castes and Tribes' and 'Sirajlul-Hasan's Castes and Tribes'., that the 113 communities or classes who were included in the recommended list are socially and educationally backward within the meaning of Articles 15(4) and 16(4) He further stated that at an officer of the Government he did considerable touring in many of the districts of Andhra Pradesh; and though he cannot say that he has personal knowledge of the life, condition and the needs of all or most of the 113 communities or classes, he had, and has sufficient knowledge of their life and conditions and needs, and his information derived from books (which spoke of a past, more or less remote) was reinforced or altered or qualified by his own direct knowledge and by the information derived by him from discussion with other officers placed like him in the matter of study and observation regarding the present and existing conditions of these backward classes. He also discussed these matters with all his colleagues in the Social Welfare Department. He then went on to give the information which he could get from Thurston's book as an example of the following communities, viz. Yerukulas, Dudekulas Basta Chakali, Gajula, Colla, Padmasali, Uppara, Satani, Gowda, Bhatraju. Koppulavelama. Telukula, Nakkala, Petechie-guntla, Nagaralu and Valmiki Boyas. It may however be noted that even according to the books on Castes and Tribes by Thurston and Siraj-ul-Hasan, some of the castes included in the impugned list are forward and could not be considered as socially and educationally backward, such as, Thurupukapu, Kalinga, Kachi, Bondili Bhatraju, Khatri Vanjara, Satani, Padmasali Reddi angam, Munnur Mudiraj and may more. At any rate, their social and educational backwardness cannot be classified as comparable to the Scheduled Castes and the Scheduled Tribes.

63. Neither the Director of Social Wel-fare not the Cabinet Sub-Committee, nor the Cabinet had before them the population of each of these classes, their economic conditions percentage of literacy or education, inferiority of their occupation, their habitation, or their social and economic status vis-a-vis the Scheduled Castes and the Scheduled Tribes In fact, there was. in our view, no change from the position that existed on the date when the Backward Classes G. O. No 1886 was struck down in 1963. No person or commission was appointed to gather the relevant material or information in respect of the backward classes, and no attempt was made in that direction since that date when the G. O. was struck down. The fact that the information cannot be easily obtained from the Census Reports, can afford no valid ground or justification for sustaining list of backward classes under Article 15(4). This information could be obtained, if the state required it, and it is not for us to suggest the manner in which it can be done, a duty which it should perform however in convenient and difficult it may be, if it has to sustain under Article 15(4) in discrimination prohibited by Article 5(1). To accept the contentions of the learned Advocate General that we should rely on the expert knowledge of the Director of Social Welfare would be tantamount to saying that we have to be satisfied with the personal knowledge of an officer of the Government who himself is frank enough to admit that the classification is a difficult one and that he cannot say that he has personal knowledge of the life, conditions and the needs of these classes and that his knowledge as to the life, conditions and needs of these backward classes was acquired as a result of his considerable touring of many districts of the Andhra Pradesh and information derived from books, like Thurston and Siraj-ul Hasan, which information, in our view, is available to every one Further what Thurston or Sirai-ul Hasan wrote with respect to the social and economic conditions of the castes and tribes was nearly 60 years ago. Even these authors did not and could not ascertain the educational backwardness of these castes and tribes; nor would these books disclose what was the criterion adopted in determining the social and educational backwardness.

64. The earlier G. O. was struck down by this Court in Sukhadev's case (supra) on the ground that it was based on caste alone. If so, the present G. O. which has deleted the overlapping due to the same castes being found both in the Telangana and Andhra is in effect the same and suffers from the same objection. The learned Advocate-General says that it was conceded by the Advocate-General in Sukhadev's case. 1966-1 Andh WR 294 (supra) that the G. 6. was based on caste though we do not find in the judgment any such concession. What was stated by the Advocate General in that case was that if social and educational backwardness of the class is based only on the caste, that would offend Articles 15(1) and 29(2) vide page 298 but that is not to say that he conceded that the G. O. in that case was based on caste alone Even so, there is no material before us to show that they are not so based, or to hold otherwise.

64A. The meaning of the word 'class' occurring in Arts. 15(4), 16(4) and 29(2) vis-a-vis caste, and the criteria necessary for determining that class to escape the prohibition in Article 15(1) have been set out in Balaji's case. : AIR1963SC649 (Supra) which is now the locus classicus on the subject. In that case, the Mysore Government passed an order on 31-7-1962 dividing the backward classes into (1) the backward and (ii) the mere backward, on the basis of castes and communities, and 68 per cent of the seats in Engineering and Medical Colleges were reserved for them and the Scheduled Castes and Scheduled Tribes leaving only 32 per cent of seats for admission to the candidates on merit.

65. The Supreme Court held that this was not Justified, as the classification is based entirely on consideration of caste, and the State was not justified in treating 90 per cent of the total population of the State as backward, so as to make a special provision for them under Article 15(4) It held that in determining the backwardness of a class under Article 15(4) the class should be backward both socially and educationally. In determining this social and educational backwardness, caste though not an irrelevant consideration, cannot be the sole basis of backwardness as that would perpetuate the caste system. If caste was taken as the only criterion, social and educational backwardness of a class cannot be ascertained in relation to those groups which do not recognise castes, such as Sikhs, Jains, Christians etc. The Court observed that social backwardness is in the ultimate analysis the result of property to a large extent and that occupations may also contribute to social backwardness. Gajendragadkar J. (as he then was) at page 658 observed:

'In determining the question as to whether a particular provision has been validly made under Article 15(4) or not, the first question which falls to be determined is whether the State has validly determined who should be included in these Backward Classes. It seems fairly clear that the backward classes of citizens for whom special provision is authorised to be made are, by Article 15(4) itself, treated as being similar to the Scheduled Castes and thp Scheduled Tribes'

66. Sri Babulu Reddy quite justifiably contends that neither the Law Secretary nor the Social Welfare Director, or for that matter the Cabinet Sub-Committee or the Council of Ministers, applied this criteria to the preparation of the Backward Classes list. There is no material from which we could determine that the classes shown in the list are similar to the Scheduled Castes and the Scheduled Tribes. The comparison, according to this test, is not with forward classes, but with backward classes and the Scheduled Castes and the Scheduled Tribes. The assertion that the communities in the list of backward Classes are notoriously backward socially and educationally is just as much an assertion and a conclusion without data as in Balaji's case, : AIR1963SC649 (supra) in regard to Muslims, the view of the majority of the Committee that they were as a whole to be treated as socially backward was and which elicited a comment of their Lordships who remarked:

'This conclusion is stated merely as a conclusion and no date or reasons are cited in support of it. The average of student population in respect of this community works at 5 per thousand and that, in our opinion, is not so below the State average that the community could be treated as educationally backward in the State of Mysore. If the test has to be applied by a reference to the State average of student population, the legitimate view to take would be that the classes of citizens whose average is well or substantially below the State Average can be treated as educationally backward.'

Though their Lordships did not propose to lay down any hard and fast rule, as it is for the State to consider the matter and decide it in a manner which is consistent with the requirements of Article 15(4) we may state that it is not as if considerations of caste should be excluded altogether. That is no doubt a relevant consideration Gajendragadkar, J. at page 659 said:

'Therefore in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group may be relevant, Its importance should not be exaggerated, if the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and mav perhaps contain the vice of perpetuating the castps themselves'

It is unnecesary for us to examine in detail that judgment, because it has already been exhaustively dealt with in Sukhadev's case, 1966-1 Andh WR 294 (supra) by one of us the Chief Justice. After Balaji's case, : AIR1963SC649 (supra) a different bench of the Supreme Court except for Sinha C. J. considered the question again in Chitralekha's case. : [1964]6SCR368 (supra). In that case, the Government of Mysore, by an order dated July 26, 1963, defined 'Backward Classes' and directed that 30 per cent of the seats in the professional and technical colleges and institutions shall be reserved for them. The classification of the socially and educationally backward classes should be made on the basis of (1) economic condition and (2) occupation. According to that, under a family whose income is Rs. 1,200 per annum or less and persons or classes following occupations of agriculture, petty business, inferior services crafts or other occupations involving manual labour, are, in general, socially economically and educationally backward. The Government listed the following occupations as contributing to social backwardness: (1) actual cultivator: (2) artisan; (3) petty businessmen; (4) inferior services (i.e. Class IV in Government services and corresponding class or service in private em-ployment) including casual labour; and (5) any other occupation involving manual labour. Pending an elaborate study, the Government of Mysore, as a temporaary measure, had taken into consideration the economic condition and occupation of the family concerned as the criteria for Backward Classes within the meaning of Article 15(4). The order did not take into consideration the caste of an applicant as one of the criteria for backwardness. Before their Lordships, the validity of the order was not attacked; but in the High Court conflicting arguments were advanced in support of that order as well as against it. The High Court of Mysore stated that the scheme adopted by the Government was a very imperfect scheme and that in addition to the occupation and poverty tests, the State should have adopted the 'caste' test as well as the 'residence' test in making the classification. In view of this, their Lordships thought it necessary to consider the exact scope of the decision in Balaii's case, : AIR1963SC649 .

After examining the observations of Gajendragadkar. J., Subba Rao. J. (as he then was) at page 1835 said:

'Two principles stand out prominently from the said observations, namely (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness; and (ii) though it is a relevant factor to determine the social backwardness of a class of citizens, it cannot be the sole or dominant test in that behalf.'

In this view, it was pointed out, the observations of the Mysore High Court appeared to be in conflict with the observations of the Supreme Court. It was pointed out that while the Supreme Court stated that caste is only a relevant circumstance and that it cannot be a dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it was an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the tests. Inasmuch as these observations of the High Court may lead to some confusion it was thought necessary to make it clear that caste is only a relevant circumstance in ascertaining the backwardness of a class and that there is nothing in the judgment in Balaji's case, : AIR1963SC649 which can preclude the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste.

At page 1833. Subba Rao. J. (as he then was) observed:

'While this Court has not excluded caste from ascertaining the backwardness of a class of citizens, it has not made it one of the compelling circumstances affording a basis for the ascertainment of backwardness of a class.

To put it differently, the authority concerned may takf caste in a consideration in ascertaining the backwardness of a group of persons but if it does not, its order will not be bad on that account, if it can ascertain the backwardness of a group of persons on the basis of other relevant criteria.'

Again, at the same page after referring to Articles 46, 341 and 342, which are said to form a group of Articles, in making a special provision for the advancement of any socially and educationally Backward Classes of citizens in the matter of admissions to Colleges, the present Chief Justice, who delivered the majority judgment, said:

'The important factor to be noticed in Article 15(4) is that it does not speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes. Though it mav be suggested that the wider expression 'classes' is used in Clause (4) of Article 15, as there arc communities without castes, if the intention was to equate classes with castes, nothing prevented the makers of the Constitution to use the expression 'Backward Classes or Castes.' The juxtaposition of the expression 'Backward Classes' and 'Scheduled Castes' in Article 15(4) also leads to a reasonable inference that the expression 'classes is not synonymous with castes. It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertain-ing the class to which he or they belong.'

This view of the majority, that in no circumstances 'class' in Article 15(4) is to be equated with 'caste' was commented upon in an article in the Indian Law Institute Journal. 1965. Vol 7 page 262. but it is unnecessary to concern ourselves with this aspect of the matter, because, as we have said, the impugned backward classes list cannot be and has not been sustained by the Government as coming within the exception provided in Article 15(4) on any material placed before this Court. In fact, there is a total absence of any material, from which we can sav that the Government applied the criteria enunciated by their Lordships of the Supreme Court in the above referred cases, in preparing the list of Backward Classes. We cannot accept the contention of the learned Advocate-General that 'once there is proof that the Government bona fide considered the matter it is sufficient; acceptance of this argument would make for arbitrariness, absolving the party or whom the burden of proof to bring it within the exception rests, from proving it. The mere fact that the act is bona fide and that there was total absence of mala fides is not relevant. In fact, in Union of India v. H. C. Goel, : (1964)ILLJ38SC their Lordships of the Supreme Court held that it is not necessary that for attacking the order of the ground that it is based on no evidence, mala fide exercise of power by the Government should be alleged. What is required to be established on material will be deemed not to have been establish-sd, if the Government has acted without any material and is not able to sustain the discrimination as coming wthin the exception of Article 15(4).

67. The learned Advocate-General then contended that having regard to the fact that there are a very large number of candidates who have applied under the Backward Classes reservation, would in any case get admission on merit, that reservation should be sustained. The learned Advocates for tha petitioners, on the other hand, contend that the total reservations on account of the Scheduled Castes, Scheduled Tribes, women and Backward Classes exceed 50 per cent and candidates on merit will only get less than 50 per cent of the seats, which according to the. Supreme Court decision, is not permissible. Gajendragadkar, J. (as he then was) in Balaji's case. : AIR1963SC649 dealing with the competing claims vis-a-vis merit said at page 663:

'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 the relevant prevailing circumstances in each case '

If this criteria is to be applied, candidates obtaining seats on merit must certainly be more than 50 per cent. This test according to the learned advocates, is also not fulfilled in this case, because the total reservations amount to 76 per cent. The learned Advocate-General, however, controverts this and says that what should be taken into consideration is only the reservations for tha Scheduled Castes Scheduled Tribes and Backward Classes, and not reservation for women or for other special categories, in which irrespective of any backwardness, educational or social, or of sex, seats ara allotted on general merit. It is true that if all the four special categories are taken into consideration, viz., the Scheduled Castes Scheduled Tribes, women and backward classes, there is possibility of less than 50 per cent of the seats being available to candidates on merit. The three special reservations, viz. the Schedule Castes, the Scheduled Tribes and backward classes, together add to 38 per cent. In these classes, there may be certain percentage of women, also which will have to be taken into consideration in computing the 30 per cent reservation for women, It is only after deducting the women candidates who have got admission under these three special reservations, the balance of 30 per cent if any has to be given to them, which need not necessarily be from the general merit pool. This may in a particular year reduce the general merit pool, affecting the test of at least 50 per cent if not more being reserved for merit

68. We cannot also countenance the argument of the learned Advocate General that because out of the Backward Class reservations, totalling 109 seats, in three Regions of Andhra, 83 candidates would secure admission on merit, and similarly in Telanyana, out of 53 seats, 48 would get on merit, this should be added to the general merit pool which does not then suffer and on that ground to sustain the reservation for the backward classes. But this, in our view, is not a proper approach. We are not considering the effect of the reservations in any particular year. What we are considering is whether the reservations for classes enumerated in the rules are sustainable. As a large proportion of applicants from Backward Classes would get seats on merit, it is argued with some justification that one of two conclusions is possible, namely, that either the list itself is not entirely of backward communities, or that persons who do not belong to it and who cannot really come under that class managed to have the benefit of this reservation. If neither of these is correct, it can only mean that 76 per cent of the Andhra and 88-5 per cent of Telangana candidates who call themselves as backward classes would get admission on merit in the general pool, as such there is no justification for the reservation because the candidates belonging to backward classes hold their own in general pool on merit. It may also be seen that in Region III of Andhra, there are 42 seats reserved for backward classes, while 46 backward class candidates would have got them in general merit pool. Similarly, in Telangana in Region II, out of 37 backward class reservations. 37 backward class candidates would have got in the general pool. If the conclusion is that backward class candidates have really made great strides, that is a happy one: but in view of the total lack of data in respect of any of the criteria suggested by their Lordships of the Supreme Court, it is difficult to come to that conclusion; nor is it possible to sustain the reservation for backward classes under Article 15(4), which we declare to be unconstitutional, with this satisfaction however, that 76 and 88 per cent of those who applied under the reservation in the two areas are getting seats on their own merit.

69. In so far as 1 per cent reservation for displaced goldsmiths is concerned, the objection of some of the petitioners is that if really goldsmiths come in backward classes in which goldsmiths are included, which has been invalid the question is whether there is proper nexus for this reservation. It is stated that because of the Gold Control Order, many goldsmiths have become unemployed and are in bad economic plight and as such, this reservation can be sustained. No doubt the Gold Control Order has been modified and the rigours of it have been softened, only recently: but this consideration will not weigh for this year. In Chitralekha's case : [1964]6SCR368 classification based on occupation and economic poverty was sustained, and we do not see why this classification cannot be sustained, in so far is this year's admissions are concerned.

70. In the result, except for striking down the reservation for backward classes under Rules 4A and 5A, respectively of the Telangana and the Andhra Rules, and the directions in respect of the President's Scouts and Guides, all other reservations are sustained. To the extent that the writ petitions challenged the backward classes reservation, and the prayer in the writ petition in respect of the President's Scouts and Guides, they are partly allowed; and they are dismissed in respect of the challenge to the other reservations. The applications of the candidates for whom seats have been reserved will have to be considered in accordance with the rules ignoring the backward class reservation, which we have struck down. In Writ Petitions 1348, 1454 and 1485, since only the reservation for backward classes has been questioned, the petitioners in those petitions will have their costs; advocate's fee Rs. 50 in each. Since in the other writ petitions the petitioners have had partial success and partial failure, there will be no order as to costs. Government Pleader's fee is fixed at Rs. 50 in each case.

* * * * *

71. These petitions having been set down on Friday the 14th day of October, 1966 for being mentioned on the letter of the 3rd Government Pleader and upon hearing the arguments of the Counsel for the both sides, the Court made the following FURTHER ORDER:

72. Though the G. O. reserving seatsfor backward classes has been held invalid,our judgment does not preclude the authority incharge of the admissions from considering the applications for admission byignoring that reservation even in the case ofthose applicants who are not the petitioners.


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