S. Murtaza Fazl Ali, J.
1. These seven applications for an appropriate writ directing the respondents to admit the petitioners to the Medical College, Srinagar raise common questions of law and fact and would, therefore, be disposed of by one common judgment.
2. The facts leading to the presentation of these petitions may be briefly summarized as follows:-
By a notification issued by the Principal Medical College Srinagar, applications were invited for admission to the 1st year of MBBS course of the said college. The minimum qualification under the Notification was that the candidate must have passed either F. Sc. Medical group or Pre Medical examination of any recognized university. A large number of candidates including the petitioners applied for admission to the Government Medical College, Srinagar and after the candidates were interviewed by a selection board, a merit list was prepared by the Principal and forwarded to the Government through the Secretary General department.
3. The allegation of the petitions is that although the petitioner's names were pretty high in the original merit list submitted by the Principal, yet the Government with an intention of making an arbitrary selection, asked for a revised list in which the petitioners were placed very much below and ultimately 75 candidates from the Slate were selected for admission to the Government Medical College. Srinagar. The petitioner's case is that while selecting the candidates the Government ignored the cases of the petitioners who had secured much higher marks than the candidates who have actually' been selected. It is also stated by the petitioners that the selection was made purely on the basis of caste, creed rather than on merit. The petitioners further complained of hostile discrimination at the hands of the Slate which is in direct contravention of the provisions of Articles 14, 15 and 29 of the Constitution of India. The petitioners have further submitted that although some sort of reservations are alleged to have been made for scheduled caste and the residents of Jammu, but there also the selection was made by discriminating between the candidates inter se rather than selecting candidates from a class as a whole. In writ petition No. 69 of 1965 Kumari Bilori alleges that she belongs to scheduled caste and although she secured much higher marks than other candidates who have been selected from the scheduled caste, her claim was completely ignored and a discrimination was thus made as between the class itself.
4. The petitions have been contested by the respondents firstly on the ground that the selection was made purely on merit and those candidates who were selected with lesser marks than the petitioners, were drawn from socially and educationally backward classes or the scheduled caste as classified by the Govt. In the affidavits which have been filed by the Chief Secretary on behalf of the respondents, no data or statistics have been given in support of their plea that certain reservations were made for socially and educationally backward classes. It is also not indicated in the affidavits as to who-the socially and educationally backward classes are.
5. It appears that no special provision, had been made by the Government in respect of seats for socially and educationally backward classes, or members of the scheduled caste-at the time of selecting the candidates or every till the time when the writ petitions were presented to this Court.
6. The point, however, has been taken for the first time in the affidavits filed by the Chief Secretary and that too without giving any data for the basis of the classification made by the Government. It is true that Article 29 clearly prohibits the State from denying admission to any candidate into an educational institution maintained by it on the ground of religion, race, caste, language or any of them. Article 29 thus enshrines a fundamental right to the citizens of India with respect to admission into educational institutions maintained by the Slate or those receiving aid out of the State funds. Article 15 Sub-clause 4 which was in sorted by the Constitution 1st Amendment Act1 of 1951 is a proviso to Article 29 and permits the State to make any special provision for the advancement of any socially and educationally backward class of citizens or for the scheduled castes and the scheduled tribes. In order therefore, to claim the benefit of Article 15 Sub-clause 4 of the Constitution of India the State must show that a special provision has been made either by a Legislative enactment or even by, an executive order. Where, however, no such provision is made by the Slate, Article 29 will apply without any fetters and the State is not permitted to make any discrimination on the' grounds mentioned in Article 29 of the Constitution of India. Even when the State makes a special provision under Article 15 Sub-clause 4 of the Constitution of India, the matter is clearly justifiable and the courts can examine whether the provision falls within permissible limits of Article 15(4) of the Constitution off India. The matter appears to have been considered at length by their Lordships of the Supreme Court in : AIR1963SC649 . In this authority, their Lordships clearly indicated that the provision of Article 29(2) have to be read subject to the provisions of Article 15 Sub-clause 4 of the Constitution of India. It was further pointed out that the provision contemplated by Article 15(4) must be made for socially and, educationally backward class of citizens and not for individual citizens as such. In other words, s what their Lordships meant was that although f the Government could make a classification of a particular section of backward classes, it could not be allowed to ignore the other members of the society completely in the garb of making a provision for a particular class and where the provision is made for a backward class purely on the basis of caste, such a classification is not permitted even by Article 15 Sub-clause 4 of the Constitution of India. While the Government could take caste of the class concerned as one of the factors to be considered, a classification on the basis of caste alone be beyond the purview of Article 15 Sub-clause 4 of the Constitution of India. Their Lordships further pointed out that in making such a provision, the State has to consider the social conditions of the class namely the extent of its poverty or progress as also the question as to how far the class concerned is educated. In other words, whenever a provision is made the courts could consider the validity of the provision by examining the factors and the data on the basis of which the provision has been made in order to determine whether the provision is justified by the plain language of Article 15 Sub-clause 4 of the Constitution of India. In the case before their Lordships of the Supreme Court a reservation of 68 per cent was held to be beyond the permissible limits of Article 15 Sub-clause 4 of the Constitution of India. In his connection, their Lordships observed as follows:
Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be relevant to consider the caste of the said group of citizens. In this connection it is, however, necessary to year 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 of citizens 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 citizens, it may not always be logical and may perhaps contain the vice of perpetuating the caste themselves......
All that this Court is called upon to do in dealing with the present petitions is to decide whether the tests applied by the impugned order are valid under Article 15(4). If it appears that the test applied by the order in that behalf is improper and invalid, then the classification of socially backward classes based on that test will have to be held to be inconsistent with the requirements of Article 15(4)...
In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Article 15(4) it has to approach its task objectively and in it rational manner. Undoubtedly, it has to take I reasonable and even generous steps to help the advancement of weaker elements the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which I would strike a reasonable balance between the several considerations. Therefore, we are satisfied that the reservation of 68 per cent directed by the impugned order is plainly inconsistent with Article 15(4)....
We have already noticed that the impugned order in the present case has categorized the Back-ward classes on the sole basis of caste, which, in our opinion, is not permitted by Article 15(4); and we have also held that the reservation of 68 per cent made by the impugned order is plainly inconsistent with the concept of special provision authorized by Article 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional powers conferred on the State by Article 15(4).
7. Thus analyzing the principles enunciated by the Supreme Court in the case cited above, the permissible classification of a backward class must satisfy the following conditions:
1 That the said backward class must be drawn from a class of citizens and not from individual citizens as such.
2 That the said class must be grouped after considering several factors social, economic, caste and the like and should not be based on caste or religion alone.
3 That the said class must not only be socially but also educationally backward. In considering social backwardness of a class of citizens the poverty or the economic conditions of a particular class may be vital factors. Similarly in considering the educational backwardness, the Government has got to keep in mind the percentage of student population of the class of citizens. Where the student population of such a class is to the extent of five per thousand or more it cannot be considered to be educationally backward.
4 The reservation of seats in the class concerned should not be disproportionate so as to exclude completely the other members of the society or the citizens A reservation of fi8 per cent for a particular class of citizens or community has been held by the Supreme Court to be invalid and beyond the permissible limits of Article 15(4) of the Constitution of India.
5 In order to make a classification a special provision must be made by the State either by a Legislative enactment or by an executive order.
8. In the instant case, we are satisfied that none of these conditions have been fulfilled while preferring some of the candidates from the so-called backward class to the petitioners. We are further fortified in our view by a division bench of the Patna High Court reported in : AIR1965Pat372 , where under similar circumstances a Division Bench of the Patna High Court held that the fixation of a backward class was made purely on the basis of caste without taking the principles laid down by the Supreme Court into consideration.
9. It is contended by the learned Counsel for the petitioners that the present case falls clearly within the principles laid down by the Supreme Court in the aforementioned case. On the other hand, the Advocate General submitted that in the instant case, the selection was made on the basis of classification contemplated by Article 15(4) of the Constitution of India. He drew our attention to the affidavits of the Chief Secretary in various petitions which show that the selection was made, firstly on the basis of candidates who were drawn from socially and educationally backward classes, secondly of candidates who were residents of Jammu and thirdly, of candidates who were drawn from scheduled caste. It was, therefore, contended toy the Advocate General that the affidavits of the Chief Secretary should be construed as a special provision falling within the permissible limits of Article 15 Sub-clause 4 of the Constitution of India. We are, however, unable to agree with this argument. Article 15(4) as already indicated, clearly contemplates that there must be a special provision for the classes mentioned in that Article; such a provision need not be made by a Legislative enactment and it can be made also by an executive order, but there must be some order or notification to show that the State having applied its mind to the various factors and the statistics of a particular class of citizens considers it to be a socially and educationally backward class for whose benefit provision has to be made. In the instant case, no such provision at all appears to have been made by the State. For the first time, in answer to the petitions, the stand taken by the Chief Secretary is that the selection has been made after taking into consideration the nature of the socially and educationally backward classes of citizens and of scheduled castes. Even in the affidavits, the Chief Secretary has not disclosed the data, statistics or the factors which go to make a particular class as a socially and educationally backward one. It has not even been indicated as to which is the class pf citizens which has been declared to be socially and educationally backward. In these circumstances, therefore, we are constrained to hold that since no provision under Article 15(4) has been made, the selection has been made on a purely discriminatory basis. At any rate, it is manifest that the selection of the candidates who have secured lesser marks than the petitioners has been made purely on the basis of caste in the case of candidates drawn from the so-called socially and educationally backward community. They have been given preference merely because they happened to belong to a particular caste or religion and in the case of scheduled castes, preference has been given to them merely because they belonged to scheduled caste. Such a discrimination however, as pointed out by the Supreme Court in the case mentioned above, is not at all permissible by Article 15(4) of the Constitution of India. Indeed, if the Chief Secretary had disclosed the various statistics and the factors which led the Government to make the classification, this Court would have been able to determine whether the classification made was within the permissible limits of Article 15(4) of the Constitution of India. Take for instance the case of those candidates who are drawn from the so-called socially and educationally backward community and who have been preferred to the petitioners. There is no evidence or material in this case to show in what way the so-called class of citizens can be termed as both socially and educationally backward class. It has not been alleged that the percentage of education of the so-called class of citizens is so low that they may be treated as educationally backward. We might mention here that in the case before the Supreme Court the average of a student population at 5 per thousand was not considered to be sufficient to enable the so-called class of citizens to be treated as educationally backward in the State. Similarly, it has not been shown before us that social backwardness of the so-called class of citizens arise from extreme poverty. In absence, therefore, of any such materials before the court, it will be difficult for us to hold that the so-called class of citizens could be grouped as socially and educationally backward class. At any rate, the fact remains that in absence of any special provision having been made by the State under Article 15(4) of the Constitution of India, Article 29 applies without any fetters and the State is not permitted to make any discrimination on the ground of caste, race, language or the like.
10. We might indicate that according to the list submitted by the Advocate General, the petitioners Ramesh Kumar Tikku, Khema Kaul, Lalita Shuri, Bansi Lal Kaul, Nancy Tikku, Bimla Tikku, and Kumari Billon have secured 346, 340, 323, 308, 319, 314 and 280 marks respectively including the marks granted! to these candidates at the interview. We might mention here that in the case of Romesh Kumar Tikku, the aggregate which he had secured at the University Examination was actually 343 but the Selection Board deducted 10 marks because he had passed at the University examination at the second attempt. We see no warrant at all on the part of the Selection Board to have deducted 10 marks from the aggregate which the candidate had secured at the University, by virtue on his sheer merit. At the most the Selection Board could have deducted marks reserved for the interview, if this principle was to be kept into consideration. It these circumstances, we have, therefore, taken the aggregate of the petitioner as secured by him in the University ignoring the deduction of 10 marks by the Selection Board. Even otherwise the aggregate of this petitioner including the marks awarded at the interview would come to 336, which is higher than the aggregate of some of the candidates selected by the Government. On the other hand some of the candidates who have been selected for admission to the Government Medical College have secured lesser marks than these candidates and these are Nos. 27, 30, 32, 33, 34, 35, 36, 37, 38, 39 to 42, 48 to 55, 58, 69, 70, 71 and 72, in the list of the candidates who have been selected for admission to the Government Medical College. The candidates with lesser marks were obviously selected merely because they happened to belong to the so-called backward class of citizens of Kashmir province. As regards the candidates draw from Jammu it was submitted by the Advocate General that such a classification could be made on the basis of residence. In this connection reliance was placed on an observation of Kerala High Court reported in AIR 1958 Kerala 33 and the provisions of Article 15 of the Constitution of India. It is true that what Article 15 prohibits is discrimination on the ground of birth alone. Their Lordships of the Kerala High Court held that since residence is a matter separate from the place of birth, selection based on the ground of residence cannot be hit by Article 15 or 29 of the Constitution of India. In (S) : 1SCR1215 it was clearly pointed out that the place of birth and residence were different matters and Article 15(4) permits discrimination based on place of residence. It Is not disputed before us that some of the candidates who were preferred to the petitioners were drawn from Jammu and were permanent residents of Jammu, a part of the State of Jammu and Kashmir. Their Lordships of the Supreme Court have held that even different areas in the State could be regarded as a country for the purpose of domicile. In this connection their Lordships of the Supreme Court observed as follows:
Domicile has reference to the system of law by which a person is governed and when we speak of the domicile of a country, we assume that the same system of law prevails all over that country. But it might well happen that laws relating to succession and marriage might not be the same all over the country, and that different areas in the Stale might have different laws in respect of those matters. In that case, each area having a distinct set of laws would itself be regarded as a country for the purpose of domicile.
In view, therefore, of the decision of the Supreme Court, there can be no doubt that the State could be permitted to make a discrimination on the ground of place of residence. The Chief Secretary in his affidavit has clearly Indicated that 23 out of 75 seats were reserved for candidates coming from Jammu. Such a classification, however, being permissible by Article 15(1) cannot be held to be invalid. In these circumstances, therefore, the argument of learned Advocate General on this score must prevail.
11. Lastly the case of Kumari Billori appears to us to be one of wanton and hostile discrimination. According to the list submitted by the Advocate General, Kumari Billori who appears at Serial No. 281 secured 280 marks and is described in the list as a member of scheduled caste. She has also stated this fact in her affidavit and has also filed a certificate from a Magistrate to the effect that she belongs to the scheduled caste. The Chief Secretary in his affidavit has merely stated that sufficient materials have not been produced to show that Kumari Billori belongs to scheduled caste, but has not categorically denied the fact that she belongs to the scheduled caste. On the materials in this case we are satisfied that Kumari Billori was doubtless a member of the scheduled caste, Despite this fact two of the candidates belonging to the scheduled caste in the list of the selected candidates namely Gur Dass and B.R. Panhotay have been given preference to Kumari Billori although the marks secured by them were 275 and 269 respectively which were obviously less than Kumari Billori. It is, therefore, manifest that a discrimination inter se between members of the scheduled caste has also been made by the State and Kumari Billon appears to have been subjected to hostile discrimination instead of her case being considered on merits.
12. Thus it is apparent that the discrimination by the State in respect of the petitioner Kumari Billori is clearly hit by Article 29 of the Constitution of India and is beyond the permissible limits of Article 15 Sub-clause 4. For the reasons mentioned above, we are satisfied that the contentions raised by the petitioners are sound and must prevail.
13. The next question that falls for consideration is as to the relief which should be granted to the petitioners. The petitions have been taken up at a time when a major portion of the session is already over. Furthermore, as the candidates who have been preferred to the petitioners have not been made parties to these petitions, it will be wholly unjust to quash their admissions at this stage. Thirdly, the Chief Secretary has not alleged that all the seats in the Government Medical College have been filled up leaving no room for any further admission. On the other hand, the Advocate General informs us that if the petitioners are ordered to be admitted at the Government Medical College Srinagar by this Court, this can be done without much inconvenience. In these circumstances, we feel that the admission of the other candidates need not be disturbed and the interests of justice will be served by issuing a writ of Mandamus commanding the respondents to admit the petitioners to the 1st year MBBS course of the Government Medical Collage Srinagar to which they are entitled by virtue of their merit. We, however, hope that in future, at the time of making selection of the candidates for admission to the Government Medical College, Srinagar. the Government may consider the desirability of making a special provision as contemplated by Article 15 Sub-clause 4 of the Constitution of India either by Legislative enactment or by an executive order enshrining the principles laid down by the Supreme Court in Balaji's case, as indicated above.
14. For these reasons, therefore, we would allow the petitions and a writ of mandamus is hereby issued commanding the respondents to admit the petitioners to the 1st year MBBS course of the Government Medical' College, Srinagar.
15. In the special circumstances of the case, there will be no order as to costs.
J.N. Bhat, J.
16. As the petitioners have been discriminated against on the basis of their religion I agree to the order proposed by my learned brother.