# DR. PREETI SRIVASTAVA AND ANR. ETC. ETC v. THE ST A TE OF MAD HY A PRADESH AND ORS

- **Citation:** [1999] Supp. 1 S.C.R. 249
- **Court:** Supreme Court of India
- **Decided:** 1999-08-10
- **Bench:** Dr. A.S. Anand, S.B. Majmudar, Sujata V. Manohar, K. Venkataswami, V.N. Khare
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-preeti-srivastava-and-anr-etc-etc-v-the-st-a-te-of-mad-hy-a-pradesh-and-ors-16948
- **Pages:** 88

## Headnote

A
B
Constitution of India, Articles 14, 15 (4), 16 (I) and 335-Uttar Pradesh
Post Graduate Medical Education (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) Act, 1997-Whether for C
admission to Post Graduate Medical Courses it is permissible to prescribe
a lower minimum percentage of qualifying marks for the reserved categoryUttar Pradesh by legislation prescribing 20% and 45% as qualifying marks
for reserved and general categories respectively-Madhya Pradesh, by
executive order, prescribing minimum qualifying marks as 20% for SC 15% D
for ST and 40% for OBC candidates-Held, Per Majority, prescribing 20%
and 45% as minimum qualifying marks for reserved and general candidates
is not permissible under Article 15(4), being unreasonable and contrary to
public interest; there cannot be a wide disparity between minimum qualifying
marks for reserved category and general candidates at post-graduate level;
Uttar Pradesh legislation and Madhya Pradesh G. 0. set aside; Per Majmudar.
E
J, (partly dissenting) if 45% passing marks are prescribed for general
category, permissible dilution of reserved category can go up to 22 and II
2% (50% of 45%); any further dilution beyond this would be impermissible
under Article 15(4)-Medical Council of India Act, 1956.
Medical Council of India, Act 1956-Ss.20,33(/) rlw Regulations on F
Post-Graduate Medical Education-Constitution of India-Article 254 rlw
Seventh Schedule, Entry 66, list I and Entry 25 List lll-Prescribing lower
minimum percentage of qualifying marks for the reserved category for
admission to post-graduate medical courses-Held, Per Majority, whether
lower minimum qualifying marks can be prescribed is to be decided by the
Medical Council of India since it affects standards of post-graduate medical G
education; Held, further, States cannot in the exercise of power under Entry
25 list llI make rules in conflict with Regulations framed by the Medical
Council of India; Per Majmudar, J, (dissenting), Medical Council of India
Regulations cannot curtail power of States from f1Xing minimum qualifying
249
H
250
SUPREME COURT REPORTS [1999) SUPP. 1 S.C.R.
A marks differently for reserved category candidates; full play is available to
state authorities to exercise legislative or executive power as field is not
occupied by any legislation till date; Held, further, Medical Council of India
regulations do not cover the question and though not binding, cannot be
ignored by State authorities while short-listing eligible candidates for
B admission to post-graduate medical courses.
Constitution of India, Articles 15 (4) and 16(4) Post-Graduate Institute
of Medical Education and Research, Chandigarh Act I966-Ss.2, 13, 32 r/
w Post-Graduate Institute of Medical Education and Research, Chandigarh
Regulations 1967, Regulation 27-Reservation of 20% of seats for SC & ST
C candidates for admission to super speciality courses of D.M .and MC.HHeld, reservation at super-speciality level being inconsistent with
constitutional mandate under Articles 15(4) and 16(4) impermissible ; merit
alone can be basis of selection.
The State of Uttar Pradesh (U.P) prescribed a Post-Graduate Medical
D. Entrance Examination (PGMEE) for admission to Post Graduate Degree/
Diploma courses in medicine. By G.O. dated October 11, 1994 the cut-off
percentage was fixed as 45% marks in the PG MEE for admission of the
general category candidates and 35% for the reserved category candidates
viz., Scheduled Castes (SC), ·scheduled Tribes (ST). Thereafter, by another
G.O. dated August 31, 1995 the State ofU.P completely did away with a cutE off percentage of marks in respect of the reserved category candidates. This
G.O. of August 31, 1995 was challenged liefore this Court in Dr. Sadhna
Devi v. State of UP., by its judgment reported in 11997] 2 SCC 90 this Court
held that while laying down minimum qualifying marks for admission to the
Post Graduate Courses, it was not open to the Government to say that there
F w

## Text

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-
...
DR. PREETI SRIVASTAVA AND ANR. ETC. ETC.
v.
THE ST A TE OF MAD HY A PRADESH AND ORS.
AUGUST 10, 1999
[DR. A.S. ANAND, CJ., S.B. MAJMUDAR, SUJATA V. MANOHAR,
K. VENKATASWAMI AND V.N. KHARE, JJ.]
A
B
Constitution of India, Articles 14, 15 (4), 16 (I) and 335-Uttar Pradesh
Post Graduate Medical Education (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) Act, 1997-Whether for C
admission to Post Graduate Medical Courses it is permissible to prescribe
a lower minimum percentage of qualifying marks for the reserved categoryUttar Pradesh by legislation prescribing 20% and 45% as qualifying marks
for reserved and general categories respectively-Madhya Pradesh, by
executive order, prescribing minimum qualifying marks as 20% for SC 15% D
for ST and 40% for OBC candidates-Held, Per Majority, prescribing 20%
and 45% as minimum qualifying marks for reserved and general candidates
is not permissible under Article 15(4), being unreasonable and contrary to
public interest; there cannot be a wide disparity between minimum qualifying
marks for reserved category and general candidates at post-graduate level;
Uttar Pradesh legislation and Madhya Pradesh G. 0. set aside; Per Majmudar.
E
J, (partly dissenting) if 45% passing marks are prescribed for general
category, permissible dilution of reserved category can go up to 22 and II
2% (50% of 45%); any further dilution beyond this would be impermissible
under Article 15(4)-Medical Council of India Act, 1956.
Medical Council of India, Act 1956-Ss.20,33(/) rlw Regulations on F
Post-Graduate Medical Education-Constitution of India-Article 254 rlw
Seventh Schedule, Entry 66, list I and Entry 25 List lll-Prescribing lower
minimum percentage of qualifying marks for the reserved category for
admission to post-graduate medical courses-Held, Per Majority, whether
lower minimum qualifying marks can be prescribed is to be decided by the
Medical Council of India since it affects standards of post-graduate medical G
education; Held, further, States cannot in the exercise of power under Entry
25 list llI make rules in conflict with Regulations framed by the Medical
Council of India; Per Majmudar, J, (dissenting), Medical Council of India
Regulations cannot curtail power of States from f1Xing minimum qualifying
249
H
250
SUPREME COURT REPORTS [1999) SUPP. 1 S.C.R.
A marks differently for reserved category candidates; full play is available to
state authorities to exercise legislative or executive power as field is not
occupied by any legislation till date; Held, further, Medical Council of India
regulations do not cover the question and though not binding, cannot be
ignored by State authorities while short-listing eligible candidates for
B admission to post-graduate medical courses.
Constitution of India, Articles 15 (4) and 16(4) Post-Graduate Institute
of Medical Education and Research, Chandigarh Act I966-Ss.2, 13, 32 r/
w Post-Graduate Institute of Medical Education and Research, Chandigarh
Regulations 1967, Regulation 27-Reservation of 20% of seats for SC & ST
C candidates for admission to super speciality courses of D.M .and MC.HHeld, reservation at super-speciality level being inconsistent with
constitutional mandate under Articles 15(4) and 16(4) impermissible ; merit
alone can be basis of selection.
The State of Uttar Pradesh (U.P) prescribed a Post-Graduate Medical
D. Entrance Examination (PGMEE) for admission to Post Graduate Degree/
Diploma courses in medicine. By G.O. dated October 11, 1994 the cut-off
percentage was fixed as 45% marks in the PG MEE for admission of the
general category candidates and 35% for the reserved category candidates
viz., Scheduled Castes (SC), ·scheduled Tribes (ST). Thereafter, by another
G.O. dated August 31, 1995 the State ofU.P completely did away with a cutE off percentage of marks in respect of the reserved category candidates. This
G.O. of August 31, 1995 was challenged liefore this Court in Dr. Sadhna
Devi v. State of UP., by its judgment reported in 11997] 2 SCC 90 this Court
held that while laying down minimum qualifying marks for admission to the
Post Graduate Courses, it was not open to the Government to say that there
F will be no minimum qualifying marks for the reserved category of candidates.
This Court struck down the G.O. dated August 31, 1995.
Thereafter the State of U.P. issued another G.O. dated April 2, 1997
under which the cut-off percentage of marks for the reserved category ·
candidates was restored at 35%. However, the State ofU.P. moved an application
G before this Court in which it prayed that it should be given the liberty to
reduce the cut-off percentage from 35% to 20% for the reserved category
candidates who appear in the PGMEE for 1997. Without waiting for a decision,
by an Ordinance date June 15, 1997, the State ofU.P. reduced the minimum
qualifying marks for the reserved category candidates appearing in the
PG MEE 1997 from 35% to 20%. Later the Ordinance, which was challenged
H in the present petition, was replaced by the Uttar Pradesh Post Graduate
-
DR. PREE TI SRIVASTAVA v. ST A TE
251
Medical Education (Reservation for Scheduled Castes, Scheduled Tribes and A
Other Backward Classes) Act 1997.
Also under challenge in writ petitions before this court was the G.O.
dated June 7, 1997 by the State of Madhya Pradesh prescribing the following
minimum percentage of qualifying marks for the reserved category candidates
to make them eligible for counselling and admission to the Post Graduate B
MediciJI Courses:-SC: 20%, ST: 15% and OBC: 40.%.
In the petition seeking review of this court's decision in Post-Graduate
Institute of Medical Education & Research, Chandigarh and Ors. v. KL.
Narasimhan and Anr., [19971 6 SCC 283, the issue involved was the
permissibility of reservations in admissions to super-speciality courses in C
medicine.
Allowing the writ. petitions and review petitions, this court
HELD: Per majority:
1.1. The Uttar Pradesh Post Graduate Medical Education (Reservation
for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act
1997 and the G.O. dated June 7, 1997 of the State of Madhya Pradesh are
set aside. [287-AJ
D
1.2. The percentage of 20% for the reserved category and 45% for E
the general category is not permissible under Article 15(4) the same being
unreasonable at the post-graduate level and contrary to public interest. Even
•
if minimum qualifying marks can be lowered for the reserved categnry
candidates, there cannot be a wide disparity between the minimum qualifying
marks for the reserved category candidates and the minimum qualifying
marks for the general category candidates at this level. [286-G; FJ
F
Dr. Sadhna Devi and Ors. v. State of UP. and Ors., (1997) 3 SCC 90,
affirmed.
Ajay Kumar Singh and Ors. v. State of Bihar and Ors., [1994) 4 SCC
401 and Post Graduate Institute of Medical Education and Research, G
Chandigarh v. KL. Narasimhan, [19971 6 SCC 283, overruled.
M.R. Balaji v. State of Mysore, (1963) Suppl. I SCR 439; Dr. Jagdish
Saran v. Union of India, ( 1980) 2 SCC 768; Indra Sawhney and Ors. v. Union
of India and Ors., [1992) Supp. 3 SCC 217; Mohan Bir Singh Chawla v.
Punjab Universit:.'. Chandigarh, [199712 SCC 171; S Vinod Kumar v. Union H
252
SUPREME COURT REPORTS [1999) SUPP. l S.C.R.
A of India, [1996] 6 SCC 580 and Dr. Fazal Ghafoor v. Union of India, [1988]
Supp. SCC 794, referred to.
'Completing Equalities ' by Marc Galanter, referred to.
1.3. There is a great deal of difference in the knowledge and skills of
B those passing with a high percentage of marks and those passing with a low
percentage of marks. The reserved categ1,>ry of students who are chosen for
higher levels of university education must be in a position to benefit and
improve their skills and knowledge and bring it to a level comparable with
the general group, so that when they emerge with specialized knowledge and
c
qualifications, they are able to function efficiently in public interest.
[268-G-H; 269-A]
2.1. Whether lower minimum qualifying marks for the reserved
category candidates can be prescribed at the post-graduate level of medical
education is a question which must be decided by the Medical Council of
D India since it affects standards of post-graduate medical education. (286-E]
State of Madhya Pradesh v. Kumari Nivedita Jain, [1981] 4 SCC 296;
Medical Council of India v. State of Karnataka, [1998] 6 SCC 131 and State
of Kera/av. Kumari T.P. Roshana. [1979) 1 SCC 572, referred to
E
2.2. The States cannot, in the exercise of power under Entry 25 of ListIll, make rules and regulations which are in conflict with or adversely
impinge upon the Regulations framed by the Medical Council of India for
post-graduate medkal education. Since the standards laid down are in the
exercise of the power conferred under Entry 66 of List-I, the exercise of that
power is exclusively within the domain of the Union Government. The power
F of States under Entry 25 of List-Ill is subject to Entry 66 of List-I.
[281-D-E]
P. Rajendrai1 v. State of Madras, [1968) 2 SCR 786; Chitra Ghosh v.
Union of India [1970[ 1 SCR 413; State of Andhra Pradesh v. Lavu
Narendranath; [1971) 3 SCR 699 and Dr. Ambesh Kumar v. Principal,
G l.l.R.M. Medical College, Meerut, [1986] Supp. SCC 543, referred to.
2.3. A State has the right to control education including medical
education so long as the field is not occupied by any Union Legislation. The
State cannot, while controlling education in the State, impinge on standards
in institutions for higher education because this is exclusively within the
H purview of the Union Government. [271-C-D)
-
-
-
...
,._
j
-
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DR. PREE TI SRIVASTAVA v. ST ATE
253
2.4. A common entrance examination envisaged under the Regulations A
framed by the Medical Council of India for post-graduate medical education
requires fixing of minimum qualifying marks for passing the examination
since it is not a mere screening test. [286-E)
Per Curiam, (Majmudar, J. concurring with the majority) :
1.1. At the level of admission to the super speciality courses, no special
provisions are permissible, they being contrary to national interest. Merit
alone can be the basis of selection. There can be no lowering of minimum
qualifying marks for any category of candidates at the level of admission to
the super-speciality courses. [288-A; F-G)
1.2. Reservations made for SC and ST candidates for admission to D.M
and M.C.H courses which are super-speciality courses, is not consistent
with the constitutional mandate under Articles 15(4) and 16(4). [290-E)
Post Graduate Institute of Medical Education & Research, Chandigarh
B
c
v. K.L. Narasimhan, [1997) 6 sec 283, overruled.
D
Per Majmudar, J. (dissenting)
1. While there cannot be a dilution of minimum qualifying marks for
reserved category candidates up to almost a vanishing point, maximum dilution
can be upto 50% of the minimum qualifying marks prescribed for general E
category candidates. On that basis if 45% passing marks are prescribed for
general category, permissible dilution can then go up to 22 and 112% (50%
of 45% ). Any dilution below this rock bottom would not be permissible under
Article 15 (4) of the Constitution oflndia. [291-E-FJ
2.1. It is permissible to the State authorities which are running and/ F
or controlling the medical institutions in the States concerned to short-list
the eligible and qualified MBBS doctors for being considered for admission
to post-graduate medical courses in these institutions. For the purpose of
such short-listing full play is available to the State authorities to exercise
legislative or executive power as the field is not occupied till date by any
legislation of the Parliament on this aspect in exercise of its legislative G
powers under Entry 25 of List III of the Constitution of India and this topic
is also not covered by any legislation under Entry 66 of List I of the
Constitution. (334-B-C-D)
The Gujarat University, Ahmedabad v. Krishna Ranganath Mudholkar,
[1963) Supp. 1 SCR 112; Tej Kiran Jain v. N. Sanjiva Reddy, [1970) 2 SCC H
254
SUPREME COURT REPORTS [1999] SUPP. I S.C.R. _
A 272; Ajay Kumar Singh and Ors. v. State of Bihar and Ors., (1994) 4 SCC
401; State of M.P. v. Nivedita Jain, (1981) 4 SCC 296 and Indra Sawhney
and Ors. v. Union of India and Ors., [1992) Supp. 3 SCC 217, referred to.
2.2. The Indian Medical Council Act and the regulations framed
thereunder do not cover the question of short-listing of admission of eligible
B and duly qualified MBBS doctors who seek admission to different medical
institutions imparting post graduate education run or controlled by the
States concerned. [334-D-E]
D.N. Chanchala v. State of Mysore,
(1971) Supp. SCR 608; Ajay
Kumar Singh v. State of Bihar, (1994) 4 SCC 401 and State of M.P. v. Nivedita
c Jain, (1981) 4 sec 296, referred to.
2.3. The regulations and guidelines given by the Medical Council of
India in this connection, though persuasive and not having any binding force,
cannot be totally ignored by .the State authorities but must be broadly kept
in view while undertaking exercise of short-listing of eligible candidates for
D being admitted to postgraduate medical courses. The performance of the .
candidate concerned during the time he or she undertool,< the study at MBBS
level for ultimately getting the MBBS degree also would be a relevant
consideration for the State authorities to be kept in view.
(334-E-F-H; 335-A)
E
2. It is permissible for the State authorities while undertaking the
aforesaid exercise of short-listing to fix 50% minimum qualifying marks
at the entrance test for general category of candidates and to dilute and
prescribe lesser percentage of passing marks for reserved category of
candidates as exigencies of situation may require in a given year but in no
F
case the minimum qualifying marks as reduced for reserved category of
candidates can go below 25% of passing marks for such reserved category
of candidates. (335-B-C)
R. Chitralekha v. State of Mysore, [1964) 6 SCR 368; Chitra Ghosh
v. Union of India, (1970) 1 SCR 413; State of Andhra Pradesh v. Lavu
G Narendranath, [1971) 1 SCC 607; Dr. Ambesh Kumar v. Principal L.L.R.M.
Medical College, Meerut, (1986) Supp. SCC 543; Dr. Sadhna Devi and Ors.
v. State of UP. and Ors., [1997) 3 SCC 90; Post-graduate Institute of Medical
Education & Research Chandigarh v. K.L. Narasimhan, (1997) 6 SCC 283;
Medical Council of India v. State of Karnataka, (1998) 6 SCC 131; M.R.
Balaji v. State of Mysore, (1963) Supp. 1 SCR 439; Minor P. Rajendran v.
H State of Madras, (1968) 2 SCR 786; S. Vinod Kumar v. Union of India,
...
.~
....
~
...
;
DR. PREETI SRIVASTAVA v. STATE [SUJATA V. MANOHAR, J.) 255
[1996) 6 SCC 580; R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745 A
and Dr. Pradeep Jain and Ors. v. Union of India and Ors., (1984) 3 SCC 654,
referred to.
'Bakke, befunis and Minority Admissions (The Quest for Equal
Opportunity)' by Allan P. Sindler, referred to.
CVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 290 of
1997 Etc. Etc.
(Under Article 32 of the Constitution of India.)
B
Altaf Ahmad, Additional Solicitor General, A.B. Rohtagi, H.N. Salve, C
Subodh Markandeya, P.P. Rao, Rajendra Sachar, Bhaskar P. Gupta, M.N.
Krishnamani, Anoop G. Chaudhary, D.S. Nehra, (K.R. Nambiar (NP), Ashok K.
Srivastava, Irshad Ahmad, Suranya Aiyar, L.R. Singh, Amitesh Kumar, Mrs.
Vimla Sinha, Yunus Mallik, Ms. Chitra Markandeya, Adesh Kumar, Satish K.
Agnihotri, Ashok K. Singh, Jamshed Bey, Ajay Talesara, Ambar Qamaruddin,
S.K. Agnihotri, Ms. Yogmaya, Sakesh Kumar, K.L. Hathi, Bhagwan Das, A. D
Mariarputham, Ms. Aruna Mathur, Ms. K. Sarada Devi, (Ms. Indra Sawhney)
(NP), Sanjay Parikh, A.K. Mishra, Sanjay Hegde, Vikrant Yadav, Pramod Swarup,
(Goodwill Indeevar) (NP), L.K. Pandey, V.N. Raghupathy, S.K. Mehta, Dhruv
Mehta, Fazlin Anam, Ms. Shobha and (D.K. Garg) (NP) for the appearing
parties.
E
The judgments of the Court were delivered by
MRS. SUJATA V. MANOHAR, J. Leave granted in SLP(C) No.12231
of 1997.
The following issue formulated by this Court at the commencement of p
hearing, requires consideration:
"The question is whether apart from providing reservation for admission
to the Post Graduate Courses in Engineering and Medicine for special
category candidates, it is open to the State to prescribe different
admission criteria, in the sense of prescribing different minimum G
qualifying marks, for special category candidates seeking admission
under the reserved category."
"This question certainly requires consideration of the Constitution Bench as
it arises and is likely to arise in a number of cases in different institutions of
the country and needs to be decided authoritatively keeping in view the H
256
SUPREME COURT REPORTS (1999) SUPP. 1 S.C.R.
A observations made in three different two or three-Judge Bench judgments".
These judgments are Ajay Kumar Singh and Ors. v. State of Bihar and Ors.,
[1994] 4 SCC 401, Dr. Sadhna Devi and Ors. v. State of U.P. and Ors., (1997]
3 SCC 90 and Post Graduate Institute of Medical Education & Research,
Chandigarh and Ors. v. K.L. Narasimhan and Anr., (1997] 6 SCC 283.
B Facts:
The State of Uttar Pradesh has prescribed a Post Graduate Medical
Entrance Examination for admission to Post Graduate Degree/Diploma courses
in medicine. This is in conformity with the relevant Regulations of the Medical
C Council oflndia. By G.O. dated l l.I0.1994, the State Government fixed a cutoff percentage of 45% marks in the Post Graduate Medical Entrance Examination
(PGMEE) for admission of the general category candidates to the Post Graduate
Courses in Medicine. The cut off percentage of marks for the reserved category
candidates viz. Scheduled· Ca~tes, Scheduled Tribes etc. was fixed at 35%.
Thereafter, by another G.O. dated 31.8.1995 the State of Uttar Pradesh
D completely did away with a cut-off percentage of marks in respect of the
reserved category candidates so that there were no minimum qualifying marks
in the Post Graduate Medical Entrance Examination prescribed for the reserved
category candidates who were seeking admission to the Post Graduate
Courses.
E
This G.O. of 31.8.1995 was challenged before this Court in Writ Petition
(C) No.679 of 1995 Dr. Sadhna Devi & Ors. v. State of U.P. & Ors., (1997] 3
SCC 90. This Court, by its judgment dated 19.2.1997, held that while laying
down minimum qualifying marks for admission to the Post Graduate Courses,
it was not open to the Government to say that there will be no minimum
F qualifying marks for the reserved category of candidates. If this is done, merit
will be sacrificed altogether. This Court struck down G.O. dated 31.8.1995.
After the said decision, the State of U.P. issued another G.O. dated
2.4.1997 under which the cut-off percentage of marks for the reserved category
candidates was restored at 35%. However, the State ofU.P. moved an application
G before this Court, being I.A. No.2 of 1997 Dr. Sadhna Devi (Supra) in which
the State of U.P. (inter alia) prayed that it should be given the liberty to
reduce the cut-offpercentage from 35% to 20% for the reserved category
candidates who appear in the PG MEE for 1997. Without waiting for a decision,
by an Ordinance dated 15.6.1997, the State of U.P. reduced the minimum
qualifying marks for the reserved category candidates appearing in the PGMEE
H 1997 from 35% to 20%. This Ordinance is challenged in the present Writ
. I
f-
DR. PREETI SRIVASTAVA v. STATE[SUJATA V. MANOHAR,J.] 257
Petition (C) No.300 of 1997. The Ordinance has now been replaced by the A
Uttar Pradesh Post Graduate Medical Education (Reservation for Scheduled
Castes, Scheduled Tribes and Other Backward Classes) Act, 1997. The
petitioners have now amended the said writ petition to challenge this Act.
For admissions effected in 1998, the State of U.P. again prescribed a cutoff percentage of 20% marks for the reserved category candidates. Learned B
counsel for the State of U.P. has further stated that for the current year's
admission, i.e. for admission to the P.G.M.E.E. 1999, the State has introduced
a Bill in the Legislative Assembly prescribing the same cut-off percentage of
20% marks for the reserved category candidates.
The lower percentage of qualifying marks prescribed for the scheduled C
caste, scheduled tribe and backward class candidates are in conjunction with
the following reservation of seats at the PGMEE:
Scheduled Castes : 21 %, Scheduled Tribes : 2%, Backward Classes :
27%.
~
In the State of Madhya Pradesh also a common entrance examination
D
is held for admission to the Post Graduate Courses in Medicine. Under the
Madhya Pradesh Medical and Dental Post Graduate Entrance Examination
Rules, 1997, certain seats were reserved for the Scheduled Caste, Scheduled
Tribe, BC and in-service candidates. The Rules, however, did not lay down E
any minimum qualifying marks for admission to the Post Graduate Courses
either for the general category or for the reserved category of candidates.
These Rules were challenged by a writ petition before the Madhya Pradesh
High Court. By its judgment which is under challenge in these proceedings,
the Madhya Pradesh High Court directed the State Government to stipulate
minimum qualifying marks in the PGMEE for all categories of candidates, F
including the general category candidates, in view of the decision of this
Court in Dr. Sadhna Devi's case (supra).
By G.O. dated 7.6.1997 the State of Madhya Pradesh prescribed the
following minimum percentage of qualifying marks for the reserved category
candidates to make them eligible for counselling and admission to the Post G
Graduate Medical Courses:
Scheduled Castes
2()0/o
Scheduled Tribes
15%
Other Backward Classes
40%
H
. 258
SUPREME COURT REPORTS (1999] SUPP. 1 S.C.R.
A This Government Order of the State of Madhya Pradesh is under challenge
before us.
We have, therefore, to consider whether for admission to the Post
Graduate Medical Courses, it is permissible to prescribe a lower minimum
percentage of qualifying marks for the reserved category candidates as
B compared to the general category candidates. We do not propose to examine
wlte.ther reservations are permissible at the Post Graduate level in medicine.
That issue was not debated before us, and we express no opinion on it. We
need to examine only whether any special provision in the form of lower
qualifying marks in the PGMEE can be prescribed for the reserved category.
c
The Constitutional Imperative:
The constitutional protection of equality before the law under Article .
14 of the Constitution is one of the basic tenets of the Constitution. It is a
car-<l_inal value which will govern our policies and actions, particularly policies
D for employment and education. Article 15(1) prohibits State discrimination on
the ground (among others) of religion, race or caste. Article 16(1) prescribes
equality of opportunity for all in matters relating to employment or appointment
to any office under the State. Article 16(2) prohibits discrimination on the
ground (among others) of religion, race, caste or descent. At the same time,
E the Constitution permits preferential treatment for historically disadvantaged
groups in the context of entrenched and clearly perceived social inequalities.
That is why Article 16(4) permits reservation of appointments or posts in
favour of any backward class which is not adequately represented in the
services under the State. Reservation is linked with adequate representation
in . the services. Reservation is thus a dynamic and flexible concept. The
F
departure from the principle of equality of opportunity has to be constantly
watched. So long as the backward group is not adequately represented i;9 the
services under the State, reservations should be made. Clearly, reservations
have been considered as a transitory measure that will enable the backward
to enter and be adequately represented in ·the State services against the
G backdrop of prejudice and social discrimination. But finally, as the social
backdrop changes - and a. change in the social backdrop is one of the
constitutional imperatives, as the backward are able to secure adequate
representation in the services, the reservations will not be required. Article
335 enters a further caveat. While considering the claims of Scheduled Castes
and Scheduled Tribes for appointments, the maintenance of efficiency of
H administration shall be kept in sight.
·.
DR. PREETI SRIVASTAVA v. ST ATE [SUJA TA V. MANOHAR, J.] 259
Article 15(4), which was added by the Constitution First Amendment A
of 1951, enables the State to make special provisions for the advancement,
inter alia, of Scheduled Castes and Scheduled Tribes, notwithstanding Articles
15(1) and 29(2). The wording of Article 15(4) is similar to that of Article 15(3).
Article 15(3) was there from inception. It enables special provisions being
made for women and children notwithstanding Article 15(1) which imposes B
the mandate of non- discrimination on the ground (among others) of sex. This
was envisaged as a method of protective discrimination. This same protective
discrimination was extended by Article 15(4) to (among others) Scheduled
Castes and Scheduled Tribes. As a result of the combined operation of these
Articles, an array of programmes of compensatory or protective discrimination
have been pursued by the various States and the Union Government. Marc C
Galanter, in his book, "Competing Equalities" has described the constitutional
scheme of compensatory discrimination thus :
"These compensatory discrimination policies entail systematic
departures from norms of equality (such as merit, evenhandedness,
and indifferences of ascriptive characteristics). These departures are D
justified in several ways. First, preferential treatment may be viewed
as needed assurance of personal fairness, a guarantee against the
persistence of discrimination in subtle and indirect forms. Second,
such policies are justified in t~rms of beneficial results that they will
presumably promote: integration, use of neglected talent, more equitable E
distribution, etc. With these two - the anti-discrimination theme and
the general welfare theme - is entwined a notion of historical restitution
or reparation to offset the systematic and cumulative deprivations
suffered by lower castes in the past. These multiple justifications
point to the complexities of pursuing such a policy and of assessing
its performance."
F
Since every such policy makes a departure from the equality norm,
though in a permissible manner, for the benefit of the backward, it has to be
designed and worked in a manner conducive to the ultimate building up of
an egalitarian non-discriminating society. That is its final constitutional G
justification. Therefore, programmes and policies of compensatory
discrimination under Article 15(4) have to be designed and pursued to achieve
this ultimate national interest. At the same time, the programmes and policies
cannot be unreasonable or arbitrary, nor can they be executed in a manner
which undennines other vital public interests or the general good of all. All
public polices, therefore, in this area have to be tested on the anvil of H
260
SUPREME COURT REPORTS [1999] SUPP. l S.C.R.
A reasonableness and ultimate public good. In the case of Article 16(4) the
Constitution makers explicitly spelt out in Article 335 one such public good
which cannot be sacrificed, namely, the necessity of maintaining efficiency in
administration. Article 15(4) also must be used, and policies under it framed,
in a reasonable manner consistently with the ultimate public interests.
B
In the case of MR. Balaji and Ors. v. State of Mysore, [1963) Suppl.
SCR 439 at pages 466-467), a Constitution Bench of this Court considered
this very question relating to the extent of special provisions .which it would
be competent for the State to make, under Article 15(4). This Court accepted
the submission that Article 15(4) must be read in the light of Article 46 and
C that under it, the educational and economic interests of the weaker sections
of the people can be promoted properly and liberally, to establish social and
economic equality. The Court said, "No one can dispute the proposition that
political freedom and even fundamental rights can have very little meaning or
significance for the backward classes and the Scheduled Castes and Scheduled
Tribes unless the backwardness and inequality from which they suffer are
D immediately redressed".
The Court, however, rejected the argument that the absence of any
limitation on the State's power to make an adequate special provision under
Article 15(4) indicates that.ifthe problem of backward classes of citizens and
E Scheduled Castes and Scheduled Tribes in any given State is of such a
magnitude that it requires the reservation of all seats in the higher educational
institutions, it would be open to the State to take that course. This Court said:
"When Article 15(4) refers to the special provisions for the 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;
F it is not a provision which is exclusive in character so that, in· looking after
the advancement of those classes the 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
G provision to ·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 t5(4). It would be extremely unreasonable to assume that in enacting
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 fundamental rights of the citizens constituting the rest of the society were
H to be completely and absolutely ignored." This Court struck down a reservation
DR.PREETISRIVASTAVAv. STATE[SUJATAV.MANOHAR,J.] 261
of 68% made for backward classes for admission to Medical and Engineering A
Courses in the University. This Court further observed, (at page 407) ':4
svecial provision contemplated by Article I 5(4), like reservation of posts
and appointments contemplated by Article 16(4), must be within reasonable
limits. The interest of weaker sections of society which are a first charge on
the States and the Centre have to be adjusted with the interest of the
community as a whole". The Court also said that while considerhjg the B
reasonableness of the extent of reservation one could not lose sight of the
fact that the admissions were to institutes of higher learning and involved
professional and technical colleges. "The demand for technicians, scientists,
doctors, economists, engineers and experts for the further economic
advancement of the country is so great that it would cause grave prejudice C
to national interests if considerations of merit are completely excluded by
wholesale reservation of seats in all technical, medical or engineering
colleges or institutions of that kind. " (Page 468) Therefore, consideration of
national interest and the interests of the community or society as a whole
cannot be ignored in determjning the reasonableness of a special provision
under Article 15(4).
D
In the case of Dr. Jagdish Saran & Ors. v. Union of India, [ 1980] 2 SCC
768, reservation of 70% of seats for the local candidates in admissions to the
Post Graduate Medical Courses by the Delhi University was struck down by
this Court. While doing so, Krishna Iyer J. speaking for the Court spelt out E
the ambits of Articles 14 and 15. He said, (at page 778) _"But it must be
remembered that exceptions cannot overrule the rule itself by running riot or
by making reservations as a matter of course in every University and every
course. For instance, you cannot wholly exclude meritorious candidates as
that will promote sub-standard candidates and bring about a fall in medical
competence injurious in the long run to the very region .......... Nor can the very F
best be rejected from admission because that will be a national loss and the
interests of no region can be higher than those of the nation. So, within these
limitations without going into excesses there is room for play of the_ State's
policy choices." He further observed, "The first caution is that reservation
must be kept in check by the demands of competence. You cannot extend the G
shelter of reservation where minimum qualifications are absent. Similarly,
all the best talent cannot be completely excluded by wholesale
reservation ...... A fair preference, a reasonable reservation, a just adjustment
of the prior needs and real potentials of the weak with the partial recognition
of the presence of competitive merit - such is the dynamic of social justice
which animates the three egalitarian articles of the Constitution."
H
A
B
c
262
SUPREME COURT REPORTS [1999) SUPP. I S.C.R.
"Flowing from the same stream of equalism is another limitation. The
basic medical needs of a region or the preferential push justified for
a handicapped group cannot prevail in the same measure at the
highest scales of speciality where the best scale or talent must be
handpicked by selecting according to capability. At the level of
P.H.D., MD. or levels of higher proficiency where international
measure of talent is made, where losing one great scientist or
technologist in the making is a national loss, the considerations we
have expended upon as important, lose their potency, where equality
measured by matching excellence has more meaning and cannot be
diluted much without grave risk. "
The same reasoning runs through Dr. Pradeep Jain & Ors. v. Union of
India & Ors., [I 984] 3 SCC 654. It dealt with reservation of seats for the
residents of the State or the students of the same university for admission
to the medical colleges. The Court said, (at page 676) "Now, the concept of
D equality under the Constitution is a dynamic concept. It takes within its
sweep every process of equalisation and protective discrimination. Equality
must not remain mere ideal indentation but it must become a living reality for
the large masses of people............ It is, therefore, necessary to take into
account de facto inequalities which exist in the society and to take affirmative
action by way of giving preference to the socially and economically
E disadvantaged persons or inflicting handicaps on those more advantageously
placed in order to bring about real equality." The Court after considering
institutional and residential preferences for admission to the M.B.B.S. course,
said that different considerations would prevail in considering such
reservations for admission to the Post Graduate Courses such as M.D., M.S.
F and the like. It said, (at page 691) "There we cannot allow excellence to be
compromised by any other considerations because that would be detrimental
to the.interest of the nation." Quoting the observation of Justice Krishna Iyer
in Dr. Jagdish Saran case (supra) the Court said, "This proposition has far
greater importance when we reach the higher levels of education like Post
G Graduate Courses. After all, top technological expertise in any vital field like
medicine is a nation's human asset without which its advance and development
will be stunted. The role of high grade skill or special talent may be less at
the lesser levels of education, jobs and disciplines of social inconsequence,
but more at the higher levels of sophisticated skills and strategic employment.
To devalue merit at the summit is to temporise with the country's development
H in the vital areas of professional expertise." (underlining ours).
DR. PREETI SRIVASTAVA v. STATE [SUJATA V. MANOHAR, J.] 263
A similar strand of thought runs through Indra Sawhney and Ors. v. A
Union of India and Ors., (1992] Supp. 3 SCC 217, where a Bench of nine
Judges of this Court considered the nature, amplitude and scope of the
constitutional provisions relating to reservations in the services of the State.
Jeevan Reddy J. speaking for the majority (in paragraph 836) stated that the
very idea of reservation implies selection of a less meritorious person. At the B
same time, we recognise that this much cost has to be paid if the constitutional
promise of social justice is to be redeemed. We also formally believe that
given an opportunity, members of these classes are bound to overcome their
initial disadvantages and would compete with - and may in some cases excel
- members on open competition. Havi~g said this, the Court went on to add,
(in paragraph 838) "We are of the opinion that there are certain services and C
positions where either on account of nature of duties attached to them or the
level (in the hierarchy) at which they obtain, merit as explained hereinabove
alone counts. In such situations it may not be advisable to provide for
reservations. For example, technical posts in research and development
organisations/departments/institutions, in specialities and super-specialities
in medicine, engineering and other such courses in physical science and D
mathematics, in defence services and in the establishments connected
therewiJi." (underlining ours)
A similar view has been taken in Mohan Bir Singh Chawla v. Punjab
University, Chandigarh and Anr., [ 1997] 2 SCC 171 where this Court said that E
at higher levels of education it would be dangerous to depreciate merit and
excellence. The higher you go in the ladder of education, the lesser should
be the reservation. In Dr. Sadhna Devi's case (supra) also this Court has
expressed a doubt as to whether there can be reservations at the Post
Graduate level in Medicine.
We are, however, not directly concerned with the question of reservations
at the Post Graduate level in Medicine. We are concerned with another special
provision under Article 15(4) made at.the stage of admission to the Post
Graduate Medical Courses, namely, providing for lesser qualifying marks or
F
no qualifying marks for the members of the Scheduled Castes and Scheduled G
Tribes for admission to the Post Graduate Medical Courses. Any special
provision under Article 15( 4) has to balance the importance of having, at the
higher levels of education, students who are meritorious and who have
secured admission on their merit, as against the social equity of giving
compensatory benefit of admission to the Scheduled Caste and Scheduled
Tribe candidates who are in a· disadvantaged position. The same reasoning H
264
SUPREME COURT REPORTS [1999] SUPP. I S.C.R.
A which propelled this Court to underline reasonableness of a special provision,
and the national interest in giving at the highest level of education, the few
seats at the top of the educational pyramid only on the basis of merit and
excellence, applies equally to a special provision in the form of lower qualifying
marks for the backward at the highest levels of education.
B
c
It is of course, important to provide adequate educational opportunities
for all since it is education which ultimately shapes life. It is the source of
that thin stream of reason which alone can nurture a nation's full potential.
Moreover, in a democratic society, it is extremely important that the population
is literate and is able to acquire information that shapes its decisions.
The spread of primary education has to be wide enough to cover all
sections of the society whether forward or backward. A large percentage of
reservations for the backward would be justified at this level. These are
required in individual as well as national interest. A university level education
upto graduation, also enables the individual concerned to secure better
D employment.