VERY MINUTE SUMMARY OF JUDJMENT ON RESERVATION

 

Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. ... on 16 November, 1992

 

 

ORDER

 

1. Judgment of The Chief Justice, M.N. Venkatachallah, A.M. Ahmadi and B.P. Jeevan Reddy, JJ. Delivered by B.P. Jeevan Reddy, J.

 

B.P. Jeevan Reddy, J

 

 

 

para 2. reservation was given  due  to  oppresion  of  shudra  centuries after  centuries by higher  caste  in  view  of  supreme court judjes

 

 

 

207entire caste and every member of the caste must be backward to call it as backward class so creamy layer was applied by court

225about entire population of muslim was kept in obc

236/ 240 /241blame on upper caste by court

226  neo baudhist

229 blaming hindu religion for caste system on muslim christians by court on the basis of mandal report

286 , 287 llustrating wrong example of a horse race infact obc sc who are studying in better school how can they come in this criteria given by court based on mandal report given below

91rickshwala  can be backward

94 areservation adequate not population basis striking down  44percent obc reservation in andhra and extra  ordinary condition

9550  percent for article  16[ 4] only

112 certain condition excluded from reservation

117periodic review of obc list

118 a    criteria of mandal  commission that only shudra can be obc

121 para 5 and c   50 percent rule in one year

836  merit on initial stage cant be ignored

837 minimum qualifying mark is necessary

838 resevation should not be in medical technichzal and in other

                            summary of judjement

see below

PART - VII

 

121. We may summarise our answers to the various questions dealt with and answered hereinabove:

 

(1)(a) It is not necessary that the 'provision' under Article 16(4) should necessarily be made by the Parliament/Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised. (Para 55)

 

(b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued. (Para 56) (2)(a) Clause (4) of Article 16 is not an exception to Clause (1). It is an instance and an illustration of the classification inherent in Clause (1). (Para 57)

 

(b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment. (Para 58)

 

(c) Reservations can also be provided under Clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under Clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for 'backward class of citizens' - as explained in this Judgment. (Para 60) (3)(a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent backward social collectives for the purposes of Article 16(4). (Paras 61 to 82)

 

(b) Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people. One can start the process either with the occupational groups or with castes or with some other groups. Thus one can start the process with the castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find out whether it satisfies the criteria. If it does - what emerges is a "backward class of citizens" within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's population, one can well begin with it and then go to other groups, sections and classes. (Paras 83 and 84)

 

(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (Paras 87 and 88)

 

(d) 'Creamy layer' can be, and must be excluded. (Para 86)

 

(e) It is not correct to say that the backward class of citizens contemplated in Article 16(4) is the same as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. (Para 85)

 

(f) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority. (Para 89) (4)(a) A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. (Para 90)

 

(b) It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised. (Para 91).

 

(5) There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories. (Para 92) (6)(a)&(b) The reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

 

(c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. (Para 96)

 

(d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is inconsistent with this judgment. (Paras 97 to 99) (7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. If is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so. (Ahmadi, J. expresses no opinion on this question upholding the preliminary objection of Union of India). It would not be impermissible for the State to extent concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. (Paras 100 to 107).

 

(8) While the rule of reservation cannot be called anti-meritarion, there are certain services and posts to which it may not be advisable to apply the rule of reservation. (Paras 108 to 112) (9) The distinction made in the impugned Office Memorandum dated 25th September, 1991 between 'poorer sections' and others among the backward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as other Backward classes, as explained in para 114 of this Judgment (Para 114). (11) The reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservation' made in the impugned office memorandum dated 25.9.1991 is constitutionally invalid and is accordingly struck down. (Para 115) (12) There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4). (Para 113) (13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Commission - for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of O.B.Cs. and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefor. (Para 117) (14) In view of the answers given by us herein and the directions issued herewith, it is not necessary to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission. It is equally unnecessary to send the matters back to the Constitution Bench of Five Judges. (Paras 118 to 119) 122. For the sake of ready reference, we also record our answers to questions as framed by the counsel for the parties and set out in para 26. Our answers question-wise are:

 

(1) Article 16(4) is not an exception to Article 16(1). It is an instance of classification inherent in Article 16(1). Article 16(4) is exhaustive of the subject of reservation in favour of backward classes, though it may not be exhaustive of the very concept of reservation. Reservations for other classes can be provided under Clause (1) of Article 16.

 

(2) The expression 'backward class' in Article 16(4) takes in 'Other Backward Classes', S.Cs., S.Ts. and may be some other backward classes as well. The accent in Article 16(4) is upon social backwardness. Social backwardness leads to educational backwardness and economic backwardness. They are mutually contributory to each other and are inter-twined with low occupations in the Indian society. A caste can be and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16(4). The weaker sections referred to Article 46 do include S.E.B.Cs. referred to in Article 340 and covered by Article 16(4).

 

(3) Even under Article 16(1), reservations cannot bo made on the basis of economic criteria alone.

 

(4) The reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

 

For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.

 

To the extent, Devadasan is inconsistent herewith, it is over-ruled.

 

(5) There is no constitutional bar to classification of backward classes into more backward and backward classes for the purposes of Article 16(4). The distinction should be on the basis of degrees of social backwardness. In case of such classification, however, it would be advisable - nay, necessary - to ensure equitable distribution amongst the various backward classes to avoid lumping so that one or two such classes do not eat away the entire quota leaving the other backward classes high and dry.

 

For excluding 'creamy layer', an economic criterion can be adopted as an indicium or measure of social advancement.

 

(6) A 'provision' under Article 16(4) can be made by an executive order. It is not necessary that it should be made by Parliament/Legislature.

 

(7) No special standard of judicial scrutiny can be predicated in matters arising under Article 16(4). It is not possible or necessary to say more than this under this question.

 

(8) Reservation of appointments or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so.

 

(As pointed out at the end of the paragraph 101 of this judgment, Ahmadi, J. having upheld the preliminary objection raised by Sri Parasaran and others has not associated himself with the discussion on the question whether reservation in promotion is permissible. Therefore, the views expressed in this judgment on the said point are not the views of Ahmadi. J.) THE FOLLOWING DIRECTIONS ARE GIVEN TO THE GOVERNMENT OF INDIA. THE STATE GOVTS. AND THE ADMINISTRATION OF UNION TERRITORIES.

 

123. (A). The Government of India, each of the State Governments and the Administrations of Union Territories shall, within four months from today, constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the lists of other backward classes of citizens. The advice tendered by such body shall ordinarily be binding upon the Government.

other  observation of indira sahney  regarding sc st

 

in a constitunal bench of supreme court they obserced some part of indira sahney that for determining sc st and placing any caste in sc st no any quantifable data is reqired

 

 

 

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.30621 OF 2011 JARNAIL SINGH & OTHERS … PETITIONERS VERSUS LACHHMI NARAIN GUPTA & OTHERS …RESPONDENTS

 

7. We may begin with the nine-Judge Bench in Indra Sawhney (1) (supra). In this case, the lead judgment is of B.P. Jeevan Reddy, J., speaking on behalf of himself and three other learned Judges, with Pandian and Sawant, JJ., broadly concurring in the result by their separate judgments. Thommen, Kuldip Singh, and Sahai, JJ., dissented. The bone of contention in this landmark judgment was the Mandal Commission Report of 1980, In arriving at this decision, the judgment of Jeevan Reddy, J., referred to and contrasted Article 16(4) with Article 15(4), and stated that when Article 16(4) refers to a backward class of citizens, it refers primarily to social backwardness (See paragraph 774). Scheduled Castes and Scheduled Tribes, not being the subject matter before the Court, were kept aside as follows:

 

 

 

―781. At the outset, we may state that for the purpose of this discussion, we keep aside the Scheduled Tribes and Scheduled Castes (since they are admittedly included within the backward classes), except to remark that backward classes contemplated by Article 16(4) do comprise some castes — for it cannot be denied that Scheduled Castes include quite a few castes.‖

 

In dealing with the creamy layer concept insofar as it is applicable to backward classes, the last sentence of paragraph 792 also states:

 

―792. …… (This discussion is confined to Other Backward Classes only and has no relevance in the case of Scheduled Tribes and Scheduled Castes).‖

 

In the summary of the discussion contained in paragraphs 796-797, it is stated, ―the test or requirement of social and educational backwardnesscannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall within the expression ―backward class of citizens‖.‖ Jeevan Reddy, J. then went on to state that in certain posts, of specialities and super-specialities, provisions for reservation would not be advisable (See paragraph 838). Ultimately, the judgment decided that reservation would apply at the stage of initial entry only and would not apply at the stage of promotion.

 

21. Thus, we conclude that the judgment in Nagaraj (supra) does not need to be referred to a seven–Judge Bench. However, the conclusion in Nagaraj (supra) that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-Judge Bench in Indra Sawhney (1) (supra) is held to be invalid to this extent

 

K.C. Vasanth Kumar & Another vs State Of Karnataka on 8 May, 1985

Equivalent citations: 1985 AIR 1495, 1985 SCR Supl. (1) 352

Author: Y Chandrachud

Bench: Chandrachud, Y.V. ((Cj), Desai, D.A., Reddy, O. Chinnappa (J), Sen, A.P. (J), Venkataramiah, E.S. (J)

Para 117 perhaps 123 also   vasant kumar case review of obc list which is endorsed in para 117 of this judjement

 

2    sabarwal case

 

R. K. Sabharwal And Ors vs State Of Punjab And Ors on 10 February, 1995

Equivalent citations: 1995 AIR 1371, 1995 SCC (2) 745

Author: K Singh

Bench: Kuldip Singh (J), Mohan, S. (J), Mukherjee M.K. (J), Hansaria B.L. (J), Majmudar S.B. (J)

 

5   all members of caste eighther they selected from reserve or open will be counted to calculate adequate representation and adequately represented caste shoulb be excluded from obc list

6     making  of a roaster and when vacency full of that class then no reservation

 

 

6        making  of a roaster and when vacency full of that class then no reservation

                              MARATHA  reservation  JUDJEMENT

158  ambedkar  about reservation less than 50 percent

155equal opportunity is right of citizen but reservation not

156doing more than 50 percent  reservation will end democracy and will make caste rule

170     OTHER MEASURES THAN RESERVATION

171   ENDENCY OF BACHWARDNESS people are declaring backward in greed of reservation

176   COURT IS GUARDIAN OF CONSTITUTION

 

183    RESERVATION SHOULD

NOT BE IN CERTAIN INSTITUTUE

199   MINORTIY INSTITUTION

description in maratha judjement

why  some  minority institute  are excluded  from  50 percent reservation rule  because  they run pre school  also

205  ,206   NDIRA SAHNEY NOW HAS CONSTITUNAL VALIDITY BY constitunal AMMENDMENT

239   WHATS IS EXCEPTIONAL CASE OF INDIRA SAHNEY where  can be breached  [panchayat election in scedule area only ]

232  233  QUANITATATIVE  DATA IS FOR GIVING RESERVATION NOT FOR  BERACHING 50%

236 to 244  QUANITATATIVE  DATA IS FOR GIVING RESERVATION NOT FOR  BERACHING 50%

277 ,281  adequate representation  is a relative term not on basis of propornate population   propornate was for article 330 and for limited period

 

325   only   higher  post less representation cant decide backwardness

327  why jat case dismissed

328    more and more people are being backward

                 cheborulila vs andhrapradesh

 79    all post of teacher was reserved

Para  114 me  114. In K. Krishna Murthy (Dr.) & Ors. v. Union of India & Anr., (2010) 7 SCC 202, this Court observed thus:

  Part 66 and  67 that political reservation can breach celing only in psedule area

107 definition of ST

133  MERIT CAN NOT BE IGNORED WHY NON TRIBAL CANT TEACH TRIBAL

ORDER IS IN SECTION OF RELIEF

 

                   K. Krishna Murthy & Ors vs Union Of India & Anr on 11 May, 2010

 

 

Equivalent citations: 2010 AIR SCW 3368, 2010 (7) SCC 202, (2010) 4 MAD LJ 393, (2010) 2 ORISSA LR 530, (2010) 3 GUJ LH 207, (2010) 3 RECCIVR 108, (2010) 2 CLR 24 (SC), (2010) 2 KER LT 46, (2010) 4 ANDHLD 70, (2010) 3 ICC 1, (2010) 5 SCALE 448, (2010) 4 ALL WC 3819

Author: K.G. Balakrishnan

Bench: J.M. Panchal, P. Sathasivam, D.K. Jain, R.V. Raveendran, K.G. Balakrishnan

39         m0re than 50 percent is political in panchatat in psedule area only

 

                        justice sudhir agrawal  allahabad  high court

delivered on 3/10/2013

civil Misc. Stay Application No. 247959 of 2013

In

Case :­ WRIT ­ A No. ­ 46249 of 2013

Petitioner :­ Sumit Kumar Shukla And 3 Ors.

Respondent :­ State Of U.P.& 2 Ors.

Counsel for Petitioner :­ Agnihotri Kumar Tripathi,Anil Singh

Bishen

Counsel for Respondent :­ C.S.C.

Court No.­ 34

 

Civil Misc. Stay Application No. 247959 of 2013

In

Case :­ WRIT ­ A No. ­ 46249 of 2013

Petitioner :­ Sumit Kumar Shukla And 3 Ors.

Respondent :­ State Of U.P.& 2 Ors.

Counsel for

 what  is  adequate  representation

26 Exclusion of classes which are now well represented in service would also help the other groups in reserved category, who are not able to compete intra class with those groups which are much advanced, well represented and excel over the other groups, so as not to allow them to compete them at par. The exclusion of well represented groups will increase available vacancies to left over groups and will give them a boost in getting more seats in reserved quota which will be conducive to the objective of providing speedier better representation to them.

 

27 The Apex Court has also repeated and reiterated that the reservation under Article 16(4) can continue only if particular class is not "adequately represented" in service. In these facts and circumstances, prima facie, in my view, the State Government deserves to be restrained from continuing with reservation in respect of such classes which are now adequately represented in service in the recruitment in question.

 

28 The next question would be, what is the dividing line of adequate representation. For the said purpose, at this stage, I find it expedient to follow the proportionate representation. Those, whose proportionate representation in service (individual or collective) is 50% and above, can safely be taken as adequately represented.

Sumit Kumar Shukla and Others v. State of Uttar Pradesh and Others

 

 

                           sanjeev kumar singh  judjement

                          allahabad high court

Sanjeev Kumar Singh Son Of Sri Amar ... vs State Of U.P. Through Its ... on 22 December, 2006

Author: S Agarwal

Bench: S R Alam, S Agarwa

JUDGMENT Sudhir Agarwal, J

23  british convenance to give reservation to divide country initial percentage and limited time

25  first time reservation in university

38 do a study and exclude some caste from obc

41  right of unreserved candidate

44  reverse discrimination is not allowed

45   dnt kill other from reservatiom

46  ambedkar also said right of unreserved

47   article  15 [4] different from 16[4] since no resevation word is incuded in artcle 15[4] and employ ment reservation is for individual only so equality of every individual should be preserved

59    adequate representation counting total selection of caste candidates maatters irrespective of category he selected and if  more reserved  candidate selected then exclude  castte but exclusion is not from one result  183  selection in open category in 600 seat is high

61    irection of court to to find which class or caste is had  adequate representation now

 

 

                                                         Supreme Court of India

                                       7    Ashoka Kumar Thakur vs Union Of India And Ors on 10 April, 2008

Author: . Arijit Pasayat

Bench: Dr. Arijit Pasayat, C.K. Thakker

 

           CASE NO.:

Writ Petition (civil)  265 of 2006

 

PETITIONER:

Ashoka Kumar Thakur

 

RESPONDENT:

Union of India and Ors

 

DATE OF JUDGMENT: 10/04/2008

 

BENCH:

Dr. ARIJIT PASAYAT & C.K. THAKKER

 

JUDGMENT:

9    reservation is for appeasement only no caste is excluded

 

47    reservation will be op[erative only 10 year after this judjement

24   Gujagujrat rane commission who said only economicaly backward are socially backwardrat

28  some  caste snatch reservation

 

9 ,   10   exclusion of caste and taking care not to take forward caste

 

60  reservation by vested interest

observation of indira sahney which directed reservation should be avoided other means should be done

in paragraph of 64 of this judjment

120    if  50 percent seats of open category is bagged by reserve caste candidates then reservation should be reviewed

124  criteria of educational backwardness

136   RESERVATIN IN MD MS

 

[JUDJEMENT NOT CLEAR ]

137    resrvation not at phd MD

138    periodic review after 5 year

caste is not class only [ vvimp] it is in summary of jjment para 7

 

 

 

 

AFTER TAKING  AGE RELAXATION  cant take seat in open merit

 

APPELLANT(S)/PETITIONERS IN WPC:

--------------------------------

     8

 DEEPA E.V. AGED 31 YEARS  WA.No. 827 of 2015 ()  IN WP(C).14500/20 THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN

                                  &

              THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

 

        MONDAY, THE 20TH DAY OF JULY 2015/29TH ASHADHA, 193712

final paragraphe of judjement

In view of the foregoing discussions, we are of the view that no error has been committed by the learned Single Judge in dismissing the Writ Petition filed by the appellant. The appellant was clearly not entitled to be considered against the general vacancy, she having appeared in selection after taking relaxation in upper age limit. We do not find any substance in the submissions made by learned counsel for the appellant. The Writ Appeal is dismissed.

 

 

 

 

 

udjment which allowed neet obc aiq reservation described below

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Writ Petition (C) No. 961 of 2021

Neil Aurelio Nunes and Ors. … Petitioners

Versus

Union of India and Ors. … Respondents

With

Writ Petition (C) No 967 of 2021

With

Writ Petition (C) No 1002 of 2021

With

Writ Petition (C) No 1021 of 2021

And With

J U D G M E N T

  9    Dr Dhananjaya Y Chandrachud, JWrit Petition (C) No 1105 of 2021

ubmission of anti reservation councellor he had submitted very important point and some judjment of supreme court regarding mbbs

 

part c in judjement

see a important point that in pradeep jain case court held that reservation in medical should be minimum

see all point below

C. Submissions of Counsel

13 Mr Shyam Divan, learned Senior Counsel appearing for the petitioners

argued that there must be no reservation for the OBC community in the AIQ

quota. In pursuance of this argument, he made the following submissions:

(i) In Pradeep Jain v. Union of India22

, this Court raised serious

concerns about the reservation in PG seats. Once a person is qualified

as a doctor, he cannot be treated as belonging to a backward class

anymore. Therefore, admission in PG seats must be purely based on

merit, without any reservation;

(ii) At the level of PG and super-speciality23, doctors are required to

possess high degree of skill and expert knowledge in specialised

areas. This skill cannot be acquired by everyone. It would be

detrimental to national interest to have reservations at this stage.

Opportunities that are available for such training are minimal and

therefore, it should only be available to the most meritorious;

(iii) This Court in Pradeep Jain (supra) created a right against reservation

in the AIQ seats. The judgment of this Court in Abhay Nath v.

University of Delhi24

 allowing reservations for SC and ST categories

in the AIQ is per incuriam in light of the judgments in Pradeep Jain

(supra), Union of India v. R. Rajeshwaran25 and Union of India v.

Jayakumar26;

(iv) The AIQ scheme was conceived by this Court in Pradeep Jain (supra)

and developed in Dinesh Kumar (I) (supra) and Dinesh Kumar (II)

(supra). Therefore, only this Court can alter the reservation scheme in

the AIQ seats. The Union Government ought to have made an

application to this Court apprising it of its intention to provide

reservation for OBC and EWS categories in AIQ, and this Court could

decide to allow or deny permission;

(v) It has been held by this Court in Dr Preeti Srivastava v. State of

Madhya Pradesh27 and various other cases that reservation in PG

courses must be minimum;

(vi) Even if reservation for the OBC category in the AIQ seats is

constitutionally valid, it ought not to have been introduced for the

academic year of 2021-22 since the notice on reservation for the OBC

category was introduced after the registration window was closed. It is

a settled principle that the rules of the game cannot be changed after

the game has begun;

(vii) The candidates had registered for the exam against a certain seat

matrix, having knowledge of the total number of seats for which they

could compete. The impugned notification alters the seat matrix,

changing the rules of the game after the game had begun;

(viii) The phrase ‗as may be applicable‘ in clause 11.1 of the information

bulletin must be read to mean the reservation applicable as on the dateof registration. The rules of the game were set when the registration

closed; and

(ix) In specific branches of specialisation such as MD Radiology, MD

Dermatology, MD Gynaecology, MS Psychiatry, MD (Chest), MD

Preventive and Social Medicine, MD Forensic Medicine, MS

Microbiology, MS Pathology, MD Biochemistry, MS Anatomy, MS

Orthopedics, and MS ENT, no SS course is offered in India. Therefore,

such courses are the end of the branch and there must be no

reservation in such courses since they are equivalent to SS courses

(Dr. Preeti Srivastava (supra)).

D. Analysis

D. 1 The Merit of Reservation

constitunal assembly member who opposed reservatioN

Shri Damodar Swarup Seth argued that reservation results in the ―very negation

of efficiency and good Government‖ and appointments should be ―made on merit

and qualification‖. However, the Constituent Assembly rejected these claims and

adopted clause (3) of draft Article 10. Although there was debate on the meaning

of ―backward classes‖, it was felt that there must be a provision that enables entry

of those communities into administration since they were deprived of such access

in the past and formal equality of opportunity would not suffice.

31 However, the

view that merit or efficiency in service is distinct from concerns of advancement of

backward classes persisted for some members

Shri k m munshi view

―What we want to secure by this clause [Article 10] are two

things. In the fundamental right in the first clause we want to

achieve the highest efficiency in the services of the State--

highest efficiency which would enable the services to function

effectively and promptly. At the same time, in view of the

conditions in our country prevailing in several provinces, we

want to see that backward classes, classes who are really

backward, should be given scope in the State services; for itis realised that State services give a status and an

opportunity to serve the country, and this opportunity should

be extended to every community, even among the backward

people.‖

court wrong interpretatation that reserved category students are not studying in well scholl only upeer caste are studyin in good schools

[basicaly court gave judjement in favour of obc due to this wrong  fact although jjudje  must know that obc sc students are also reading in good school but perhaps he feared due to high population of obc and victim card]

see his observation below

24 The crux of the above discussion is that the binary of merit and reservation

has now become superfluous once this Court has recognized the principle of

substantive equality as the mandate of Article 14 and as a facet of Articles 15 (1)

and 16(1). An open competitive exam may ensure formal equality where

everyone has an equal opportunity to participate. However, widespread

inequalities in the availability of and access to educational facilities will result in

the deprivation of certain classes of people who would be unable to effectively

compete in such a system. Special provisions (like reservation) enable such

disadvantaged classes to overcome the barriers they face in effectively

competing with forward classes and thus ensuring substantive equality. The

privileges that accrue to forward classes are not limited to having access to

quality schooling and access to tutorials and coaching centres to prepare for a

competitive examination but also includes their social networks and cultural

capital (communication skills, accent, books or academic accomplishments) that

they inherit from their family.

42 The cultural capital ensures that a child is trained

unconsciously by the familial environment to take up higher education or high

posts commensurate with their family‘s standing. This works to the disadvantage

of individuals who are first-generation learners and come from communities

whose traditional occupations do not result in the transmission of necessary skills

required to perform well in open examination. They have to put in surplus effort tcompete with their peers from the forward communities.43 On the other hand,

social networks (based on community linkages) become useful when individuals

seek guidance and advise on how to prepare for examination and advance in

their career even if their immediate family does not have the necessary exposure.

Thus, a combination of family habitus, community linkages and inherited skills

work to the advantage of individuals belonging to certain classes, which is then

classified as ―merit‖ reproducing and reaffirming social hierarchies. In BK

Pavithra v. Union of India44

, a two-judge Bench of this Court, of which one of us

was a part (Justice DY Chandrachud) had observed how apparently neutral

systems of examination perpetuate social inequalities. This Court observed

―134. It is well settled that existing inequalities in society can

lead to a seemingly ―neutral‖ system discriminating in favour

of privileged candidates. As Marc Galanter notes, three broad

kinds of resources are necessary to produce the results in

competitive exams that qualify as indicators of ―merit‖. These

are:

―… (a) economic resources (for prior education, training,

materials, freedom from work, etc.); (b) social and cultural

resources (networks of contacts, confidence, guidance and

advice, information, etc.); and (c) intrinsic ability and hard

work…‖ [ Galanter M., Competing Equalities : Law and the

Backward Classes in India, (Oxford University Press, New

Delhi 1984), cited by Deshpande S., Inclusion versus

excellence : Caste and the framing of fair access in Indian

higher education, 40 : 1 South African Review of Sociology

127-147.]

135. The first two criteria are evidently not the products of a

candidate's own efforts but rather the structural conditions

into which they are borne. By the addition of upliftment of SCs

and STs in the moral compass of merit in government

appointments and promotions, the Constitution mitigates the

risk that the lack of the first two criteria will perpetuate the

structural inequalities existing in society

 obervation of court that medical seat should be filled by merit have been Described in this judjement

Jagdish Saran v.

Union of India

PARAGRAPHE  46 OF THIS JUDJEMENT REFERS JUDJEMENT GIVEN IN JAGDISH SARAN CASE

―10. The philosophy and pragmatism of universal

excellence through equality of opportunity for education

and advancement across the nation is part of our founding

faith and constitutional creed. The effort must, therefore,

always be to select the best and most meritorious students

for admission to technical institutions and medical colleges

by providing equal opportunity to all citizens in the country

and no citizen can legitimately, without serious detriment to

the unity and integrity of the nation, be regarded as an

outsider in our constitutional set-up. Moreover, it would be

against national interest to admit in medical colleges or

other institutions giving instruction in specialities, less

meritorious students when more meritorious students are

available, simply because the former are permanent

residents or residents for a certain number of years in the

State while the latter are not, though both categories are

citizens of India. Exclusion of more meritorious students on

the ground that they are not resident within the State would

be likely to promote substandard candidates and bring

about fall in medical competence, injurious in the long run

to the very region. ―It is no blesaelection of

candidates for admission to the medical colleges must,

therefore, be merit. The object of any rules which may be

made for regulating admissions to the medical colleges

must be to secure the best and most meritorious student

 sad after citing this JUDJEMENT later he said that it will not apply

to obc