# 11 S.C.R. 1124 SAMTA AANDOLAN SAMITI & ANR v. UNION OF INDIA & ORS

- **Citation:** [2013] 11 S.C.R. 1124
- **Court:** Supreme Court of India
- **Decided:** 2013-12-11
- **Bench:** K.S.Radhakrishnan, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/11-s-c-r-1124-samta-aandolan-samiti-anr-v-union-of-india-ors-28675
- **Pages:** 25

## Headnote

Education - Admission - Medical admissions - MBBS
- Choice given by respondents to SCISTIOBC candidates
C taking admission in open competition, to opt for better
Institution of their choice for which he/she would have been
eligible as per the rules of reservation -
Challenged -
Whether once a candidate in reserved category had taken
admission under the open competition, he could not have
o been given a choice for better Institution on the premise that
he/she will be governed by Rules of reservation - Held:
Respondents, at the time of counseling, only accorded a
higher/better choice to meritorious reserved candidates
(MRC) who got recommended against general/unreserved
E seats vis-a-vis those reserved category candidates who were
accommodated against their quota - It was an inter-se
adjustment between two kinds of persons belonging to
reserved category - In inter-se merit, persons who were able
to find their place in general list on account of their merit are
F definitely better placed than those candidates who are
selected in the reserved category, though both types of
candidates belong to reserved category - If between two
categories of persons belonging to same class, higher choice
is not given to the persons who are better in merit viz. the
MRCs, it would clearly be injustice to them - Action of the
G respondents not prejudicial to the interests of the petitioners
in any manner.
H
The petitioners filed the instant Writ Petition under
1124
SAMTA AANDOLAN SAMIT! v. UNION OF INDIA
1125
Article 32 of the Constitution pleading that while making
A
admissions in the MBBS course, the respondent-All India
Institute of Medical Sciences (AllMS) was not strictly
adhering to the reservation policy; and questioning the
manner in which seats were allotted to the candidates
belonging to reserved category. As per them, the AllMS
B
far exceeded the quota prescribed for the reserved
category candidates resulting in more than 50 %
reservations of the seats, which is contrary to the law laid
down by this Court.
The petitioners objected to the choice given by C
respondents to SC/ST/OBC candidates who had taken
admission in the open competition, to opt for a better
Institution of their choice for which he/she would have
been eligible as per the rules of reservation. This,
according to the petitioner, was impermissible as once a
D
candidate in reserved category had taken admission
under the open competition, he could not have been
given a choice for better Institution on the premise that
he/she will be governed by Rules of reservation.
The stand of the respondent-AllMS, on the other E
hand, was that the methodology adopted by the AllMS for
admission in MBBS course was perfectly valid and
justified. The respondent maintained that 50% quota had
not been breached and what was done in fact was inter
se adjustment among those who belong to reserved
F
class i.e. those who were selected on their own merit and
found their way into general category vis-a-vis those who
were admitted on the basis of reservation provide~ in the
respective reserved categories. It was contended on
behalf of the respondent that this was necessary as
G
otherwise those persons from reserved category who
were more meritorious would be in a disadvantageous
position vis-a-vis those who secured admission on the
basis of relaxed standard under the reserved quota
meant for them.
H
1126
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
Dismissing the petition, the Court
HELD: 1.1. When certain persons belonging to
reserved category get selected in open competition on
the basis of their merit, they are not to be counted in the
reserved category against the reserved category quota.
8 It is open to the authorities to fill the posts meant for
reserved category candidates from amongst the persons
in such categories after excluding those who have found
their place in general merit. As a fortiori, while calculating
the limit of 50% reservation, those candidates belonging
C to reserved category who have

## Text

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A
B
[2013) 11 S.C.R. 1124
SAMTA AANDOLAN SAMITI & ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 677 of 2013)
DECEMBER 11, 2013
[K.S.RADHAKRISHNAN AND A.K. SIKRI, JJ.]
Education - Admission - Medical admissions - MBBS
- Choice given by respondents to SCISTIOBC candidates
C taking admission in open competition, to opt for better
Institution of their choice for which he/she would have been
eligible as per the rules of reservation -
Challenged -
Whether once a candidate in reserved category had taken
admission under the open competition, he could not have
o been given a choice for better Institution on the premise that
he/she will be governed by Rules of reservation - Held:
Respondents, at the time of counseling, only accorded a
higher/better choice to meritorious reserved candidates
(MRC) who got recommended against general/unreserved
E seats vis-a-vis those reserved category candidates who were
accommodated against their quota - It was an inter-se
adjustment between two kinds of persons belonging to
reserved category - In inter-se merit, persons who were able
to find their place in general list on account of their merit are
F definitely better placed than those candidates who are
selected in the reserved category, though both types of
candidates belong to reserved category - If between two
categories of persons belonging to same class, higher choice
is not given to the persons who are better in merit viz. the
MRCs, it would clearly be injustice to them - Action of the
G respondents not prejudicial to the interests of the petitioners
in any manner.
H
The petitioners filed the instant Writ Petition under
1124
SAMTA AANDOLAN SAMIT! v. UNION OF INDIA
1125
Article 32 of the Constitution pleading that while making
A
admissions in the MBBS course, the respondent-All India
Institute of Medical Sciences (AllMS) was not strictly
adhering to the reservation policy; and questioning the
manner in which seats were allotted to the candidates
belonging to reserved category. As per them, the AllMS
B
far exceeded the quota prescribed for the reserved
category candidates resulting in more than 50 %
reservations of the seats, which is contrary to the law laid
down by this Court.
The petitioners objected to the choice given by C
respondents to SC/ST/OBC candidates who had taken
admission in the open competition, to opt for a better
Institution of their choice for which he/she would have
been eligible as per the rules of reservation. This,
according to the petitioner, was impermissible as once a
D
candidate in reserved category had taken admission
under the open competition, he could not have been
given a choice for better Institution on the premise that
he/she will be governed by Rules of reservation.
The stand of the respondent-AllMS, on the other E
hand, was that the methodology adopted by the AllMS for
admission in MBBS course was perfectly valid and
justified. The respondent maintained that 50% quota had
not been breached and what was done in fact was inter
se adjustment among those who belong to reserved
F
class i.e. those who were selected on their own merit and
found their way into general category vis-a-vis those who
were admitted on the basis of reservation provide~ in the
respective reserved categories. It was contended on
behalf of the respondent that this was necessary as
G
otherwise those persons from reserved category who
were more meritorious would be in a disadvantageous
position vis-a-vis those who secured admission on the
basis of relaxed standard under the reserved quota
meant for them.
H
1126
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
Dismissing the petition, the Court
HELD: 1.1. When certain persons belonging to
reserved category get selected in open competition on
the basis of their merit, they are not to be counted in the
reserved category against the reserved category quota.
8 It is open to the authorities to fill the posts meant for
reserved category candidates from amongst the persons
in such categories after excluding those who have found
their place in general merit. As a fortiori, while calculating
the limit of 50% reservation, those candidates belonging
C to reserved category who have found their place on the
basis of their merit competing with general candidates are
not to be taken into consideration. [Para 15] [1143-G-H;
1144-A]
o
1.2. Those members who belong to reserved
category but get selected in the open competition on the
basis of their own merit have a right to be included in the
general/unreserved category. Such Meritorious reserved
candidates (MRC) not to be included in the quota
E reserved for Scheduled Caste etc. It is an admitted
position that if these persons are excluded, the
respondents have not exceeded the quota meant for
reserved category. The respondents, at the time of
counseling, have only accorded a higher/better choice to
these meritorious reserved candidates (MRC) who got
F recommended against general/unreserved seats vis-8-vis
those reserved category candidates who are
accommodated against their quota. It is, therefore, an
inter-se adjustment between the two kinds of persons
belonging to reserved category. In their inter-se merit,
G these persons who have been able to find their place in
general list on account of their merit are definitely better
placed than those candidates who are selected in the
reserved category, though both types of candidates
belong to reserved· category. Thus, if between these two
H
SAMTAAANDOLAN SAMITI v. UNION OF INDIA
1127
categories of persons belonging to same class, higher A
choice is not given to the persons Who are better in merit
viz. the MRCs, it would clearly be injustice to them. In the
instant case, neither upper limit of 50% reservation is
breached, nor any rights of the petitioners are violated or
the action of the respondents have been to their prejudice
B
in any manner. [Paras 19 and 24] [1145-E-H; 1146-A;
1148-G]
Ritesh R.Sah vs. Dr. Y.L. Yamul & Ors. (1996) 3 SCC
253: 1996 (2) SCR 695 - held applicable
Indira Swhney vs. Union of India (1992) Suppl. 3 SCC
212; Union of India vs. Ramesh Ram & Ors. (2010) 7 SCC
234: 2010 (6) SCR 698 and Yoganand Vishwasrao Patil vs.
State of Maharashtra (2005) 12 SCC 311 - referred to.
Case Law Reference:
1996 (2) SCR 695
held applicable
Para 12
Para13
c
D
(1992) Suppl. 3 SCC 212 referred to
2010 (6) SCR 698
referred to
Para 15
E
(2005) 12 sec 311
referred to
Para 22
CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
Constitution of India.
Writ Petition (Civil) No. 677 of 2013.
F
A. Mariarputham, M.L. Lahoty, Paban K. Sharma, Shobhit
Tiwari, Gargi B. Bharali, Lal Pratap Singh, Ram Niwas, Umesh
Pratap Singh, Ruchi Kohli, Gopal Shankarnarayanan,
G
Vikramaditya, Dr. R.R. Kishore, Shiva Pujan Singh, Niranjana
Singh, Kumar Rajan Mishra, Narender S. Yadav, Alok Prasanna
Kumar, D.L. Chidananda, B. Krishna Prasad, Yusuf Khan,
Mahmood Pracha, Suit Babbar, Naresh Kumar (for AllMS) for
the appearing parties.
H
1128
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
The Judgment of the Court was delivered by
A.K. SIKRI, J. 1. The petitioners have approached this
Court by way of filing the present Writ Petition filed under Article
32 of the Constitution of India with the grievance that while
9
making admissions in the MBBS course, the respondent All
India Institute of Medical Sciences (AllMS) is not strictly adhering
to the reservation policy and have questioned the manner in
which seats are allotted to the candidates belonging to
reserved category. As per them, the AllMS have far exceeded
the quota prescribed for the reserved category candidates
C which has resulted in more than 50 % reservations of the seats,
which is contrary to the law laid down by this Court. The stand
of the AllMS, on the other hand, is that there is no violation of
the law laid down by this Court in this behalf and the
methodology adopted by the AllMS for admission in MBBS
D course is perfectly valid and justified. The controversy has
arisen in the following backdrop:
2. "The All India Institute of Medical Sciences (AllMS), New
Delhi issued Prospectus for admission in the MBBS course
E starting from August, 2013 along with admission in Six New
AllMS at Bhopal, Patna, Jodhpur, Rishikesh,Raipur and
Bhubaneswar with an intake of 100 students in each new AllMS.
The reservation policy was notified to be 7.5.% ST, 15% SC,
27% OBC and Indian Nationals, 3% reservation for Orthopedic
F physically handicapped to be provided on horizontal basis.
G
H
Para 4.2 of the prospectus prescribe the procedure for
selection into the MBBS course hereunder:
"4.2 PROCEDURE OF SELECTION:
Based on the result of the Competitive Entrance
examination, merit lists will be prepared as below:
(a) Common Merit List: Subject to the Govt. of lndi,
DOPT. O.M.No.36011/1/98.Estt.(Res), dated 1st July
1998. It is clarified that only such SC/ST/OBC candidates
SAMTA AANDOLAN SAMITI v. UNION OF INDIA
1129
[A.K.SIKRI, J.]
who are selected on the same standard as applied to
A
general candidates shall not be adjusted against reserved
vacancies. In other words, when a relaxed standard is
applied in selecting an SC/ST/OBS candidates, for
example in the age-limit, experience, qualification,
permitted number of chances in written examination,
B
extended zone of consideration larger than what is
provided for General Category candidates etc. the SC/ST/
OBS candidates are to be counted against reserved
vacancies. Such candidates would be deemed as
unavailable for consideration against the unreserved
C
vacancies. Therefore the reserved candidate will be
considered on General Seat only if no relaxation of the
eligibility level (i.e. % of marks) and at cut off level of marks
in MBBS entrance examination is given.
(b) Scheduled Caste candidates list
D
(c) Scheduled Tribe candidates list
(d) Other Backward Classes candidates list"
3. Thirty seven (37) candidates from the common merit list,
E
eleven (11) candidates from the merit list of Scheduled Caste
category and five (5) candidates from the merit list of
Scheduled Tribe and 19 (nineteen) candidates from the merit
list of Other Backward Classes category will be admitted
including 3% reservation for orthopaedic physically
F
handicapped on horizontal basis in the seats available. The
reservation will be 7 % % ST, 15% SC and 27% for OBC
category. In case eleven (11) candidates from the Scheduled
Caste or five (5) candidates from the Scheduled Tribe
categories and nineteen (19) candidates belonging to OBC are
G
not available, then the number of candidates selected on the
basis of merit for general seats shall be correspondingly
increased so that the total number of candidates selected for
the MBBS course remains seventy two (72). The remaining
candidates will be kept on the waiting list in order of merit. Inter
H
1130
SUPREME COURT REPORTS
, [2013] 11 S.C.R.
A se merit of two or more candidates in the same category
obtaining equal marks in the competitive entrance examination
will be determined in order of preference as under:
B
c
(a) Candidates obtaining higher marks in Biology in
the entrance examination.
(b) Candidates obtaining higher marks in Chemistry
in the entrance examination.
(c) Candidates obtaining higher marks in Physics
in the entrance examination.
(d) Candidates older in age to be preferred.
A similar procedure for selection will apply for the six
new AllMS where the number will be calculated for a total
D
of 100 admissions for each."
4. Petitioner No.2 being eligible in all respects' under
unreserved category had submitted his application form and
was allotted application form number-1021016668. He was
issued the Admit Card for AllMS-MBBS 2013 Entrance
E Examination. Petitioner No.2 appeared in the competitive
entrance examination held on 1.6.2013 and secured 1066 over
all rank. A counseling letter was issued for counseling at Delhi
AllMS on 10-12 July 2013 and the Petitioner No.1 was called
for counseling scheduled to be held on 10th July 2013.
F
That as per the counseling letter the method of counseling
is:
4. Method of counseling: The following process will be
G
adapted for counseling for all 7AllMS Institutes.
i. In the counseling process, the seats to be filled by
open (UR) competition should be filled up first, wherein the
candidates should be called for counseling based on merit
alone irrespective of whether they belong to SC,ST or
H
OBC.
'
SAMTAAANDOLAN SAMIT! v. UNION OF INDIA
1131
[A.K.SIKRI, J.]
ii. Next, reservation categories like SC/ST/OBC
A
candidates will be counseled to fill up the seats earmarked
for them in their respective categories. During this process,
if a candidate belonging to SC/ST/OBC who had taken
admission under open competition, opts for a better
institution of his/her choice for which he or she would be
B
eligible as per the rules of reservation, the seat vacated
by him or her in open (UR) competition shall be filled with
a candidate from the same reservation category only, in
order of merit.
Note: All reserved category candidates who qualify c
in the open (general) merit list (i.e. 4 times of the open
category seats) shall necessarily attend the counseling for
open category seats and shall exercise his/her option and
then if, he/she desires to opt for a different institution in his/
her respective reserved category, he/she may attend the
D
counseling meant for that reserved category.
Provided:
a. If he/she is not present or if present, fails to or
E
refused to take a seat in open category, he/she shall not
be allowed for attending the counseling for reserved seats.
b.He/she cannot opt for institution under reservation,
if he/she had already opted the same institution in open
category.
F
Methods of counseling: In the counseling process,
the seats to be filled by open (UR) competition should be
filled up first, wherein the candidates should be called for
counseling strictly by merit alone till the last unreserved seat
G
is filled, irrespective of whether they belong to SC,ST or
OBC. The counseling for ref erved category seat ( which
will also be strictly by meritY should commence only after
filling up of all the unreserved seats (i.e. open category
seats). Meritorious reserved candidate belonging to SC/
H
A
B
c
D
E
1132
SUPREME COURT REPORTS
[2013] 11 S.C.R.
ST/OBC category, who has taken unreserved seat in any
institution after attending the open merit counseling, if
exercises his/her option to take a different institute in the
reserved category counseling, the seat so vacated by this
candidate should be available to next meritorious
candidate belonging to that particular reserved category
only. In other word if SC/ST/OBC candidate got any
institution under unreserved category and if he/she opts
different institution under reserved category of his/her
choice the resultant vacated unreserved seat shall be
allotted to same category candidate in order of merit i.e.
the vacated seat of meritorious reserved category
candidate should be immediately added to the seats
available under the reserved category in the institute he/
she had opted during counseling for UR seat.
Note: For example - if a SC meritorious candidate
who has initially opted a X institution from open category,
vacates a seat in open category because he wants to take
Y institution from reserved category during the counseling
in reserved category, the same seat (i.e. UR seat of X
institute) which is vacated by him/her shall be made
available to the next SC candidate in order of merit."
5. Petitioner No.2 appeared in the counseling (1st
counseling) conducted by the respondents. The petitioners aver
F that the respondents had conducted the counseling in strict
adherence of the procedure quoted hereinabove. However, the
respondents forced reserve candidates to obtain the
unreserved (UR) seats by note (4.2.a) in counseling call letter.
In this way the respondents deliberately tried to convert UR
seats to reserve category seat because of note 4.2. Otherwise
G the candidates would have been provided freedom to opt seats
under UR seats or category seats of their choice in different
AllMS. It is averred that the common practice in the counseling
of NEET (National Eligibility cum Entrance Test), AIPMT (All
India Pre Medical Test) and states counseling for admission in
H
SAMTA AANDOLAN SAMITI v. UNION OF INDIA
1133
[A.K.SIKRI, J.]
Government Medical Colleges, is parallel counseling for all
A
categories on their merit cum choice basis in which unreserved
seats are filled first as per rule framed _by this Court in Indira
Sawhney case.
6. It is stated that ·the petitioner No.2 has secured rank
1066 in the competitive entrance examination and counseling
for unreserved seats on 1st day of counseling could reach only
up to 663 ranks only. In the counseling done for unreserved
seats approx. around 140 reserve categories candidate found
place on general seats.
B
c
7. On the second day of counseling, which is for other
backward classes (OBC) category, the counseling started from
rank 1st for OBC and approx. around 120 OBC candidates,
who has secured their merit position in unreserved category
opted for better colleges from their counterpart in unreserved
D
category by enjoying their reserv.e status on OBC seats: In other
words, the seats/position occupied by meritorious reserved
category candidates was vacated. All vacated seats and 181
reserve seats were filled on 11 July by comparative low rank
OBC candidate. By adding this around 45 percent of
E
candidates from OBC took the benefit of Quota instead of 27
per cent. The case sought to be set up is that by this procedure
it exceeds the limit given by the Constitution.
8. This position is sought to be highlighted by the following
MBBS seat position in each AllMS:
Name of Institution
Total
UR
OBC SC
ST
Seats
AllMS, New Delhi
72
37
19
11
5
.1.
All MS, Bhopal
100
50
27
15
8
AllMS,Bhubaneswar
100
50
27
15
8
AllMS,Jodhpur
100
50
27
15
8
F
G
H
1134
SUPREME COURT REPORTS
[2013) 11 S.C.R.
A
AllMS, Patna
100
50
27
15
8
AllMS, Raipur
100
50
27
15
8
AllMS,Rishikesh
100
50
27
15
8
B
Total
672
337
181
101
53
9. It is stated that as against 181 seats meant for OBC
category, 270 seats have been filled from amongst the
candidates belonging to this category which is evidentially
impermissible. By the time this matter was argued, as the third
C and final counseling had taken place and the allotment of the
seats was done on the basis of that counseling. The final
picture which emerged, is that the last unreserved candidates
who secured admission in reserved category had rank of 1476.
There were 79 ca.ndidates in OBC category who had higher
D rank than 1476 and were, thus, adjusted as meritorious
reserved candidates (MRC) candidates in unreserved
candidates. Likewise, this SC candidate with rank above 1476
could make their way to unreserved list.
E
10. On the aforesaid basis, following prayer is made in the
F
G
H
Writ Petition:
(a) Pass writ, order or direction whereby respondents be
directed to give admission to petitioner No.1 in unreserved
category in MBBS course 2013,
(b) Pass writ, order or direction whereby directions No.4
(reproduced at para No.8 of the writ petition) in counseling
letter prescribing procedure for counseling be quashed and
set aside.
(c)Pass writ order or direction whereby respondents be
directed to make strict compliance of the Hon'ble Supreme
Court judgment passed in the case of Union of India vs.
Ramesh Ram (2010) 7 SCC 234).
SAMTA AANDOLAN SAMITI v. UNION OF INDIA
1135
[A.K.SIKRI, J.]
(d) Pass writ order or direction whereby respondents be
A
restrained to permit the reserve category candidates to
-occupy the seats in unreserved category vacated by
meritorious category candidates, who have opted/chosen
their reserve category for seeking admission in MBBS
course 2013.
B
(e) Pass writ order or direction whereby respondents be
directed to undertake the admission exercise for MBBS
course 2013 strictly in terms of prayer sought in Paragraph
(c).
(f) Pass such other or further order (s) as this Hon'ble Court
may deem fit in the facts and circumstances of the case."
11. After issuance of the show cause notice, respondents
c
appeared. Since main contesting party is the AllMS, counsel
D
affidavit on its behalf filed by Dr.A.B.Dey, Dean, (Research)
who had acted as Convener of the counseling in the aforesaid
admission process. It is stated by him in his affidavit that the
process of counseling was discussed and finalized in the
meeting held on 26.5.2013 with all Directors, AllMS, senior
E
officials and senior faculties. The minutes of the meeting, interalia, mentioned that :
•
• ... it was mandatory for all candidates to be present in
person for counseling on the days as given in the call letter.
No request for authorized representative to be present on
F
behalf of candidate would be entertained. If a candidate
failed to come for counseling in person, she/she would be
marked absent and her/his candidature would stand
cancelled .. ."
12. It is also stated in the counter affidavit that in this
meeting it was decided to constitute a Counseling Committee
to undertake three counts of counseling for MBBS and two
rounds of counseling for B.Sc. (Hons.) Nursing for 7 AllMS. For
this reason, in the counseling letter, attention of the candidates
G
H
1136
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A was drawn to the provision in the prospectus whereby
candidates were asked to give choice about different AllMS
where they would like to be admitted. They were also informed
that allocation of seats will be done on merit-cum-choice. In the
counseling letter, therefore, candidates were informed that they
B would exercise their choice of the particular Institute when called
during the counseling as per the rank in respective category.
Notwithstanding whatsoever choices he/she had made while
filling form, choice thus made was to be final and no claim
whatsoever on the basis of choices made in admission form
c was to be entertained. This was widely circulated through
newspaper advertisement and posted on AllMS website as
well, well in advance. It is pleaded that this method of counseling
adopted by AllMS was in tune with the judgment of this Court
in Ritesh R.Sah vs. Dr. Y.L. Yamu/ & Ors. (1996) 3 SCC 253.
0
The exact nature of the counseling method which was adopted
is stated below :
E
F
G
H
1. In the counseling process, the seats to be filled by open
(UR) competition should be filled up first, wherein the
candidates should be called for counseling based on merit
alone irrespective of whether they belong to SC,ST or
OBC.
2. Next, reservation categories like SC/ST/OBC
candidates will be counseled to fill up the seats earmarked
for them in their respective categories. During this process,
if a candidate belonging to SC/ST/OBC who had taken
admission under open competition, opts for a better
institution of his/her choice for which he or she would be
eligible as per the rules of reservation, the seat vacated
by him or her in open (UR) competition shall be filled with
a candidate from the same reservation category only, in
order of merit.
\
Note: All reserved category candidates who qualify in the
open (general) merit list (i.e. 4 times of the open category
seats) shall necessarily attend the counseling for open
SAMTA AANDOLAN SAMITI v. UNION OF INDIA
1137
[A.K.SIKRI, J.]
category seats and shall exercise his/her option and then
A
if, he/she desires to opt for a different institution in his/her
respective reserved category, he/she may attend the
counseling meant for that resel')led category.
Provided
a. If he/she is not present or if present, fails to or refuses
to take a seat in open category, he/she shall not be
allowed for attending the counseling for reserved seats.
8
b. He/she cannot opt for institution under reservation, if he/
she had already opted the same institution in open
C
category ..
Methods of counseling
In the counseling process, the seats to be filled by open
(UR) competition should be filled up first, wherein the
D
candidates should be called for counseling strictly by merit
alone till the last unreserved seat is filled, irrespective of
whether they belong to SC,ST or OBC.
The counseling for reserved category seat (which will also
E
be strictly by merit) should commence only after filling up
of all the unreserved seats (i.e. open category seats).
Meritorious reserved candidate belonging to SC/ST/OBC
category, who has taken unreserved seat in any institution
after attending the open merit counseling, if exercises his/
her option to take a different institute in the reserved
category counseling, the seat so vacated by this candidate
should be available to next meritorious candidate
belonging to that particular reserved category only. In other
word if SC/ST/OBC candidate got any institution under
unreserved category and if he/she opts different institution
G
under reserved category of his/her choice the resultant
vacated unreserved seat shall be allotted to same category
candidate in order of merit, i.e. the vacated seat of
meritorious reserved category candidate should be
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immediately added to the seats available under that
reserved category in the institute he/she had opted during
counseling for UR seat.
Note: For example - 'if a SC meritorious candidate who
has initially opted a X institution from open category,
vacates a seat in open category because he wants to take
Y institution from reserved cate_gory during his counseling
in reserved category, the same seat (i.e. UR seat of X
institute) which is vacated by him/her shall be made
»·available to the next SC candidate in order of merit."
.. 13. It is pleaded that with the adoption of the aforesaid
method, the authorities found out the candidates among
reserved candidates who qualified on their own merit and are
on the open merit list and then asking their option if they want
0
to choose other Institute of their choice which is present in their
reserved Cc;ltegory and not in unreserved category. This method
gives them option to change Institute in their better choice in
reserved category and once that is done such candidates are
given that reserved seats but while computing the percentage
of reservation they are not counted against reservation pool.
E
To achieve that objective, the seat which they vacated ·is offered
to the same reserved category below in merit. It is thus pleaded
that 50% of the ceiling is never broken in the present counseling
and thus persons belonging to reserved category, who are able
to come on their own merit while competing with the general
F
candidates category can be put in the list of general/unreserved
category, as held by this Court in the case of Indira Swhney
vs. Union of India (1992) Suppl. 3 SCC 212.
14. We have already quoted the general proposition of law,
G in so far as extend of reservation is concerned, as laid down
in Indira Sawhney (supra). Mr. Lahoti has placed reliance on.
paragraphs 804, 807 and 809 of lt\_is judgment whereas
learned counsel for the respondent led e-mphasis on paras 811
and 813. In the case of Indira Sawhney (supra) the principle was
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SAMTA AANDOLAN SAMITI v. UNION OF INDIA
1139
[A.K.SIKRI, J.]
stated in the following terms: We quote hereunder all these A
paragraphs:
PART-V
(QUESTION NOS. 6. 7 AND 8)
B
Question 6: To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji a binding
rule or only a rule of caution or rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations C
made under Clause (4) of Article 16 or whether it takes in
all types of reservations that can be provided under Article
16?
(c) Further while applying 50% rule, if any, whether an year
should be taken as a unit or whether the total strength of D
the cadre should looked to?
In Balaji, a Constitution Bench of this Court rejected the
argument that in the absence of a limitation contained in
Article 15(4), no limitation can be prescribed by the court E
on the extent of reservation. It observed that a provision
under Article 15(4) being a "special provision" must be
-within reasonable limits. It may be appropriate to quote the
relevant holding from the judgment.
-When Article 15(4) refers to the special provision for the
F
advancement of certain classes or scheduled castes or
scheduled tribes, it must not be ignored that the provision
which is authorised to be made is a special provision; it
is not a provision which is exhaustive in character, so that
in looking after the advancement of those classes, the G
-State would be justified in ignoring altogether the
advancement of the rest of the society. It is because the
, interests of the society at large would be served by
• promoting the advancement of the weaker elements in the
society that Article 15(4) authorises special provision to
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•
be made. But if a provision which is in the nature of an
exception completely excludes the rest of the society, that
clearly is outside the scope of Article 15(4) the Parliament
intended to provide that where the advancement of the
Backward classes or the Scheduled Castes and Tribes
was concerned, the fundar.1ental rights of the citizens,
constituting the rest of the society were to be completely
and absolutely ignored ... A special provision contemplated
by Article 16(4) must be within reasonable limits. The
interests of weaker sections of society which are a first
charge on the State and the center have to be adjusted
with the interests of the community as a whole. The
. adjustment of these competing claims is undoubtedly a·
difficult matter, but if under the guise of making a special ·
provision, a State reserves practically all the seats
available in all the colleges, that clearly would be subverting
the object of Article 15(4). In this matter again, we are
reluctant to say definitely what would be a proper provision
to make. Speaking generally and in a broad way a special
provision should be less than 50%; how much less than
50% would depend upon the relevant prevailing
circumstances in each case.
,.,
In Devadasan this rule of 50% was applied to a case
arising under Article 16(4) and on that basis the carryforward rule was struck down. In Thomas, however, the
correctness of this principle was seriously questioned,
Fazal Ali, J. observed:
This means that the reservation should be within the
permissible limits and should not be a cloak to fill all the
posts belonging to a particular class of citizens and thus
violate Article .1fil1l of the Constitution indirectly. At the
same time Clause (4) of Article 16 does not fix any limit
on the power of the Government to make reservation.
Since Clause (4) is a part of Article 16 of the Constitution
it is manifest that the State cannot be allowed to indulge
in excessive reservation so as to defeat the policy
SAMTAAANDOLAN SAMITI v. UNION OF INDIA
1141
[A.K.SIKRI, J.]
contained in Article 1fil11. As to what would be a suitable
A
reservation within permissible limits will depend upon the
facts and circumstances of each case and no hard and fast
rule can be laid down, nor can this matter be reduced to a
mathematical formula so as to be adhered to in all cases.
Decided cases of this Court have no doubt laid down that
B
the percentage of reservation should not exceed 50%. As
I read the authorities, this is however, a rule of caution and
does not exhaust all cattgories. Suppose for instance a
Stats has a large number of backward class of citizens
which constitute 80% of the population and the c
Government, in order to give them proper representation,
reserves 80% of the·jobs for them can it be said that the
percentage of reservation is bad and violates the
permissible limits of Clause (4) of Article 16? The answer
must necessarily be in the negative. The dominant object
0
to this provision is to take steps to make inadequate
representation adequate.
Krishna Iyer, J. agreed with the view taken by Fazal Ali, J.
in the following words:
E
I agree with my learned brother Fazal Ali, J. in the view
that the arithmetical limit of 50% in any one year set by
some earlier rulings cannot perhaps be pressed too far.
Overall representation in a department does not depend
on recruitment in a particular year, but the total, strength
of a cadre. I agree with his construction of Article 16(4)
and his view-about the 'carry forward' rule.
823. Mathew, J. did not specifically deal with this aspect
F
but from the principles of 'proportional equality' and
'equality of results' espoused by the learned Judge, it is
G
argued that he did not accept the 50% rule. Bag, J. also
did not refer to this rule but the following sentence occurs
in his judgment at page 962 and 963:
If a reseNation of posts under Article 16(4) for employees
of backward classes could include complete reservation
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of higher posts to which they could be promoted, about
which there could be no doubt now, I fail to see why it
cannot be partial or for a part of the duration of service
and hedged round with the condition that a temporary
promotion would operate as a complete and confirmed
promotion only if the temporary promotee satisfies some
tests within a given time.
Ray, C.J. did not dispute the correctness of the 50% rule
but at the same time he pointed out that this percentage
should be applied to the entire service as a whole.
807. We must, however, point out that Clause (4) speaks
of adequate representation .and not proportionate
representation. Adequate representation cannot be read
as proportionate representation. Principle of proportionate
representation is accepted only in Articles 330 and 332
of the Constitution and that too for a limited period. These
articles speak of reservation of seats in Lok Sabha and
the State legislatures in favour of Scheduled Tribes and
Scheduled Castes proportionate to their population, but
they are only temporary and special provisions. It is
therefore not possible to accept the theory of proportionate
representation though the proportion of population of
backward classes to the total population would certainly
be relevant. Just as every power must be exercised
reasonably and fairly, the power conferred by Clause (4)
of Article 16 should also be exercised in a fair manner and
within reasonable limits -and what is more reasonable than
to say that reservation under Clause (4) shall not exceed
50% of the appointments or posts, barring certain
extraordinary situations as explained hereinafter. From this
point of view, the 27% reservation provided by the
impugned Memorandums in favour of backward classes
is well within the reasonable limits. Together with
reservation in favour of Scheduled Tribes, it comes to a
total of 49.5%. In this connection, reference may be had
to the Full Bench decision of the Andhra Pradesh High
SAMTA AANDOLAN SAMITI v. UNION OF INDIA
1143
[A.K.SIKRI, J.]
Court in Narayan Rao v. State , striking down the
A
enhancement of reservation from 25% to 44% for 0.8.Cs.
The said enhancement had the effect of taking the total
reservation under Article 16(4) to 65%.
"809. From the above discussion, the irresistible
conclusion that foTIOws is that the reservations
contemplated in clause (4) of Article 16 should not exceed
50%.
8
" ... 811 ... It is well to remember that the reservations under
Article 16 (4) do not operate like a communal reservation.
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It may well happen that some members belonging to, say
Scheduled Castes get-selected in the open competition
field on the basis of their own merit; they will not be counted
against the quota reserved for Scheduled Castes; they will
· be treated as open competition candidates."
o
"813 .... lt is however, made clear that the rule of 50%
shall be applicable only to reservation proper; they shall
not be - indeed cannot be - applicable to exemptions,
concessions or relaxations, if any provided to backward
class of citizen's under Article 16(4) ... "
E
15. There is no quarrel upto this stage. It is now well
entrenched principle of law that those members belonging to
reserved category who get selected in the open competition
on the basis of their own merit have right to be included in the
general list/unreserved category and not to be counted against
the quota reserved for Scheduled Caste. This was recognized
F
by the Constitutional Bench judgment of this Court in Indira
Sawhney {supra) and has been followed in series of judgments
thereafter. Thus, when certain persons belonging to reserved
category get selected in open competition on the basis of their
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merit, they are not to be counted in the reserved category
against the reserved category quota. It is open to the authorities
to fill the posts meant for reserved category candidates from
amongst the persons in such categories after excluding those
who have found their place in general merit. As a fortiori, while
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A calculating the limit of 50% reservation, those candidates
belonging to reserved category who have found their place on
the basis of their merit competing with general candidates are
not to be taken into consideration. It is also not in dispute that
such OBC/SC candidates who have been included in general
B category have come in that category on their own merit with no
relaxation of the eligibility level i.e. percentage of marks.
However, the objection of Mr. Lahoti, learned counsel for the
petitioner, was to the method of counseling which was adopted
in the present case as that has come, no doubt, above to the
c persons in reserved categories. He submitted that as per para
4 of the counseling letter choice was given to SC/ST/OBC
candidates who had taken admission in the open competition,
to opt for a better Institution of their choice for which he/she
would have been eligible as per the rules of reservation. This,
0
according to him, was impermissible as once a candidate in
reserved category had taken admission under the open
competition, he could not have been given a choice for better
Institution on the premise that he/she will be governed by Rules
of reservation. For this reason, he took strong objection to the
note appended to para 4 of the counseling letter as well which
E facilitated this process. t-:te, thus, submitted that the counseling
letter/circular was opposed to the provision made in the
prospectus and was also contrary to the judgment of this Court
in Union of India vs. Ramesh Ram & Ors. (2010) 7 SCC 234.
F
16. Learned counsel for the respondent, on the other hand,
maintained that 50% quota had not been breached and what
was done in fact was inter se adjustment among those who
belong to reserved class i.e. those who were selected on their
own merit and found their way into general category vis-a-vis
G those who were admitted on the basis of reservation provided
in the respective reserved categories. He argued that this was
necessary as otherwise those persons from reserved category
who was more meritorious would be in a disadvantageous
position vis-a-vis those who secured admission on the basis
H of relaxed standard under the reserved quota meant for them.
SAMTA AANDOLAN SAMITI v. UNION OF INDIA
1145
[A.K.SIKRI, J.]
His submission was that this was approved by this Court in the
A
case of Yoganand Vishwasrao Patil vs. State of Maharashtra
(2005) 12 sec 311.
B
17. We have considered the submissions of counsel of
both the parties. At the outset, we would like to point out that in
the present case, we are dealing with the case of admission
with medical course, and the position which we are going to
explain in the subsequent paragraphs is confined to cases of
admissions and not appointment into the service under the
Government. Further, this applies only to MBBS Course and
not Post Graduate Courses.