# NEIL AURELIO NUNES & ORS v. UNION OF INDIA & ORS

- **Citation:** [2022] 11 S.C.R. 585
- **Court:** Supreme Court of India
- **Decided:** 2022-01-20
- **Bench:** Dr. Dhananjaya Y Chandrachud, A. S. Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/neil-aurelio-nunes-ors-v-union-of-india-ors-35689
- **Pages:** 107

## Headnote

Constitution of India - Arts. 15(1), 15(4), 15(5), 16(1) and
16(4) - Reservation - National Eligibility cum Entrance Test (NEET)
- Reservation for Other Backward Classes-OBC (non-creamy layer)
in the All-India Quota (AIQ) seats in NEET for undergraduate and
postgraduate medical courses - Held: Reservation for OBC
candidates in the AIQ seats for UG and PG medical and dental
courses is constitutionally valid - Articles 15(4) and 15 (5) are not
an exception to Article 15 (1), which itself sets out the principle of
substantive equality (including the recognition of existing
inequalities) - Merit cannot be reduced to narrow definitions of
performance in an open competitive examination which only
provides formal equality of opportunity - Open competitive
examinations do not reflect the social, economic and cultural
advantage that accrues to certain classes and contributes to their
success in such examinations - High scores in an examination are
not a proxy for merit - Merit should be socially contextualized and
reconceptualized as an instrument that advances social goods like
equality - In such a context, reservation is not at odds with merit
but furthers its distributive consequences - Articles 15(4) and 15(5)
employ group identification as a method through which substantive
equality can be achieved - This may lead to an incongruity where
certain individual members of an identified group that is being given
reservation may not be backward or individuals belonging to the
non-identified group may share certain characteristics of
backwardness with members of an identified group - The individual
difference may be a result of privilege, fortune, or circumstances
but it cannot be used to negate the role of reservation in remedying
the structural disadvantage that certain groups suffer - Challenge
to the constitutional validity of OBC reservation in AIQ seats
introduced through the notice dated 29 July 2021 is rejected.
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[2022] 11 S.C.R.
Constitution of India - Article 14, 15(1), 15(4), 16(4) -
Reservation - Merit - Plea of the petitioners that at the level of PG
courses, a high degree of skill and expertise is required thus, such
opportunities must be available to the most meritorious and providing
any reservation for PG seats would be detrimental to national interest
- Held: This is not a novel argument - Special provisions (including
reservation) made for the benefit of any class are not an exception
to the general principle of equality - Special provisions are a method
to ameliorate the structural inequalities that exist in the society,
without which, true or factual equality will remain illusory - The
binary of merit and reservation has now become superfluous once
Supreme 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) - The narrow definition of merit (that is, decontextualised
individual achievement) hinders the realisation of substantive
equality.
Constitution of India - Reservation - Scheme of All-India
Quota (AIQ) seats - Development of - Petitioners argued that
Supreme Court in Pradeep Jain case and the subsequent cases has
held that there shall be no reservation in the AIQ seats - Held:
Scheme of AIQ was devised to allot seats in State-run medical and
dental institutions in which students from across the country could
compete - Observations in Pradeep Jain that the AIQ seats must be
filled by merit, must be read limited to merit vis-à-vis residence
reservation - Supreme Court in Pradeep Jain did not hold that
reservation in AIQ seats is impermissible - Evolution of the AIQ in
UG and PG medical and dental courses traced.
Constitution of India - Reservation - All-India Quota (AIQ)
seats - Power of executive to introduce reservation in AIQ seats -
Petitioners argued that the Union Government should have filed an
application before Supreme Court before notifying reservations in
the AIQ since the AIQ scheme i

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[2022] 11 S.C.R. 585
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NEIL AURELIO NUNES & ORS.
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 961 of 2021)
JANUARY 20, 2022
[DR. DHANANJAYA Y CHANDRACHUD AND
A. S. BOPANNA, JJ.]
Constitution of India - Arts. 15(1), 15(4), 15(5), 16(1) and
16(4) - Reservation - National Eligibility cum Entrance Test (NEET)
- Reservation for Other Backward Classes-OBC (non-creamy layer)
in the All-India Quota (AIQ) seats in NEET for undergraduate and
postgraduate medical courses - Held: Reservation for OBC
candidates in the AIQ seats for UG and PG medical and dental
courses is constitutionally valid - Articles 15(4) and 15 (5) are not
an exception to Article 15 (1), which itself sets out the principle of
substantive equality (including the recognition of existing
inequalities) - Merit cannot be reduced to narrow definitions of
performance in an open competitive examination which only
provides formal equality of opportunity - Open competitive
examinations do not reflect the social, economic and cultural
advantage that accrues to certain classes and contributes to their
success in such examinations - High scores in an examination are
not a proxy for merit - Merit should be socially contextualized and
reconceptualized as an instrument that advances social goods like
equality - In such a context, reservation is not at odds with merit
but furthers its distributive consequences - Articles 15(4) and 15(5)
employ group identification as a method through which substantive
equality can be achieved - This may lead to an incongruity where
certain individual members of an identified group that is being given
reservation may not be backward or individuals belonging to the
non-identified group may share certain characteristics of
backwardness with members of an identified group - The individual
difference may be a result of privilege, fortune, or circumstances
but it cannot be used to negate the role of reservation in remedying
the structural disadvantage that certain groups suffer - Challenge
to the constitutional validity of OBC reservation in AIQ seats
introduced through the notice dated 29 July 2021 is rejected.
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SUPREME COURT REPORTS
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Constitution of India - Article 14, 15(1), 15(4), 16(4) -
Reservation - Merit - Plea of the petitioners that at the level of PG
courses, a high degree of skill and expertise is required thus, such
opportunities must be available to the most meritorious and providing
any reservation for PG seats would be detrimental to national interest
- Held: This is not a novel argument - Special provisions (including
reservation) made for the benefit of any class are not an exception
to the general principle of equality - Special provisions are a method
to ameliorate the structural inequalities that exist in the society,
without which, true or factual equality will remain illusory - The
binary of merit and reservation has now become superfluous once
Supreme 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) - The narrow definition of merit (that is, decontextualised
individual achievement) hinders the realisation of substantive
equality.
Constitution of India - Reservation - Scheme of All-India
Quota (AIQ) seats - Development of - Petitioners argued that
Supreme Court in Pradeep Jain case and the subsequent cases has
held that there shall be no reservation in the AIQ seats - Held:
Scheme of AIQ was devised to allot seats in State-run medical and
dental institutions in which students from across the country could
compete - Observations in Pradeep Jain that the AIQ seats must be
filled by merit, must be read limited to merit vis-à-vis residence
reservation - Supreme Court in Pradeep Jain did not hold that
reservation in AIQ seats is impermissible - Evolution of the AIQ in
UG and PG medical and dental courses traced.
Constitution of India - Reservation - All-India Quota (AIQ)
seats - Power of executive to introduce reservation in AIQ seats -
Petitioners argued that the Union Government should have filed an
application before Supreme Court before notifying reservations in
the AIQ since the AIQ scheme is a creation of Supreme Court -
Held: Argument is erroneous - The Union Government in Abhay
Nath case had made a submission of its intention to provide
reservations in the AIQ for the SC and ST candidates since until
then in view of the confusion on demarcation of the seat matrix,
there was no clarity on whether reservations could be provided in
the AIQ - Thus, in Abhay Nath it was clarified that reservations are
permissible in the AIQ seats - Therefore, the order in Abhay Nath
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was only clarificatory in view of the earlier observations in Buddhi
Prakash Sharma - Interpreting the order to mean that the Union of
India sought the permission of Supreme Court before providing
reservation would amount to aiding an interpretation that would
foster judicial overreach - The Union Government was not required
to seek the permission of the Court before providing reservation in
AIQ seats - Providing reservation in the AIQ seats is a policy decision
of the Government.
Constitution of India - Reservation - All-India Quota (AIQ)
seats - Impugned notice providing reservation for OBC and EWS
categories in the AIQ was issued on 29 July 2021, after the
registration for the examination had closed on 18 April 2021 -
Plea of the petitioners that the rules of the examination could have
only been changed before the last date for registration and as the
candidates registered for the exam having a particular seat matrix
in mind, the change in the seat matrix after registration would be
arbitrary - Held: Clause 11 of the information bulletin specifies
that the reservation applicable to NEET-PG would be notified by
the counselling authority before the beginning of the counselling
process - Therefore, the candidates while applying for NEET-PG
are not provided any information on the distribution of seat matrix
- Such information is provided by the counselling authority only
before the counselling session is to begin - It thus cannot be argued
that the rules of the game were set when the registration for the
examination closed.
Constitution of India - Reservation - The Constitution (One
Hundred and Third Amendment) Act 2019 - Articles 15(6) and 16(6)
- Criteria for the determination of the EWS for the ten percent
reservation - Challenge to - Held: Challenge to the very criteria
for the determination of the EWS would not only require the matter
to be heard at length but also to hear all interested parties - However,
in view of the delay in the counselling process due to the pendency
of this petition, it is deemed necessary to allow the counselling
session to begin with the existing criteria for the identification of
the EWS category - Judicial propriety does not permit to pass an
interim order staying the criteria for determination of the EWS
category - It is a settled principle of law that in matters involving
challenge to the constitutionality of a legislation or a rule, the Court
must be wary to pass an interim order, unless the Court is convinced
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that the rules are prima facie arbitrary - However, at this stage,
without hearing all the interested parties at length on arguments, it
would be impermissible to form a prima facie opinion on the alleged
arbitrariness of the criteria - Further, in the midst of the pandemic,
any delay in the recruitment of doctors would impact the ability to
manage the pandemic - Hence, it is necessary to avoid any further
delays in the admission process and allow counselling to begin
immediately - The implementation of EWS reservation in AIQ seats
in NEET UG and PG seats for the academic year of 2021-2022 is
allowed - EWS category be identified in view of the criteria in O.M
No. 36039/1/2019 - Challenge to the validity of the criteria
determined by the Pandey Committee for the identification of the
EWS category be listed for final hearing.
Directing the matter to be listed for final hearing on
challenge to the validity of the criteria determined by the Pandey
committee for the identification of the EWS category, the Court
HELD: 1.1 On its part, this Court initially subscribed to
the binary of merit and reservation. Articles 14, 15(1) and 16(1)
were thought to embody the general principle of formal equality.
Articles 15 (4) and 16 (4) were understood to be exceptions to
this general principle, advancing the cause of social justice. This
Court sought to balance these competing imperatives. In such
an understanding, merit is equated to formal equality of
opportunity which has to be balanced against the concerns of
social justice through reservation. In MR Balaji v. State of Mysore
a Constitution Bench of this Court observed that Article 15 (4) is
an exception to Article 15 (1), which was introduced ̄because
the interests of the society at large would be served by promoting
advancements of the weaker elements in the society. However,
since Article 15 (4) (or reservation) was considered at odds with
the notion of formal equality under Article 15 (1), which is broadly
understood as complying with the principle of merit, this Court
observed that there should be a cap on reservations, which it
specified generally should be 50 percent. This view was followed
by this Court in subsequent judgements where a special provision
made for the benefit of a class was seen as a deviation from the
principle of formal equality. However, the dominant view of this
Court was challenged by the Justice R Subba Rao in his dissent
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in T. Devadasan v. Union of India, where the learned judge stated
that Article 16 (4) is not an exception but rather a facet of Article
16 (1), which seeks to redress the historical disadvantage suffered
by certain communities. The view expressed by Justice Subba
Rao was adopted by this Court in State of Kerala v. NM Thomas,
which transformed the equality jurisprudence in India from that
of formal equality to substantive equality; thus, also changing our
understanding of reservations. The majority of the judges
accepted that special provisions (including reservation) made for
the benefit of any class are not an exception to the general
principle of equality. Special provisions are a method to
ameliorate the structural inequalities that exist in the society,
without which, true or factual equality will remain illusory. Justice
KK Mathew in his concurring opinion observed that while
equality under Article 16 (1) is individual-centric (which was the
view of the majority - Justice Mathew and Justice Beg's majority
opinions, and Justice Khanna and Justice Gupta's dissents), the
manner in which it is to be achieved is through the identification
of groups that do not enjoy equal access to certain rights and
entitlements. Thus, the learned judge envisaged that equality of
individuals is to be achieved by addressing the structural barriers
faced by certain classes of citizens, which he called the "conditions
and circumstances [that] stand in the way of their equal access to
the enjoyment of basic rights or claims". Justice Krishna Iyer
and Justice Fazal Ali in their concurring opinions went a step
further to argue that the content of Article 16 (1) is not individualcentric rather it aims to provide equality of opportunity to sections
that face structural barriers to their advancement. Justice Krishna
Iyer invoked Article 46 of the Constitution, which although
unenforceable, was employed for giving effect to Article 16 (1).
In his opinion both Articles 16 (1) and 16 (4) function to equalise
group inequalities albeit in different contexts. Justice Fazal Ali
in his concurring opinion noted that equality of opportunity under
Article 16 (1) entails the removal of barriers faced by certain
classes of society. They cannot be denied the right to equality
and relegated to suffer backwardness only because they do not
meet certain artificial standards set up by institutions. [Paras 1821][619-D-G; 620-E-F; 621-F; 622-E-G; 623-G-H; 624-A-B-F]
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS.
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T. Devadasan v. Union of India (1964) 4 SCR 680; CA
Rajendran v. Union of India (1968) 1 SCR 721; State
of Kerala v. NM Thomas (1976) 2 SCC 310 : 1976 (1)
SCR 906; Indira Sawhney v. Union of India 1992 Supp
(3) SCC 217 : [1992] 2 Suppl. SCR 454 - followed.
MR Balaji v. State of Mysore [1963] Supp 1 SCR 439;
Dr Jaishri Laxmanrao Patil v. Chief Minister (2021) 8
SCC 1 - referred to.
1.2 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.
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 to compete with their peers from the forward communities.
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
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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. [Para 24][627-BG; 628-A-B]
BK Pavithra v. Union of India (2019) 16 SCC 129:
2019] 7 SCR 1086 - relied on.
1.3 This is not to say that performance in competitive
examination or admission in higher educational institutions does
not require a great degree of hard work and dedication but it is
necessary to understand that merit is not solely of one's own
making. The rhetoric surrounding merit obscures the way in which
family, schooling, fortune and a gift of talents that the society
currently values aids in one's advancement. Thus, the
exclusionary standard of merit serves to denigrate the dignity of
those who face barriers in their advancement which are not of
their own making. But the idea of merit based on scores in an
exam requires a deeper scrutiny. While examinations are a
necessary and convenient method of distributing educational
opportunities, marks may not always be the best gauge of
individual merit. Even then marks are often used as a proxy for
merit. Individual calibre transcends performance in an examination.
Standardized measures such as examination results are not the
most accurate assessment of the qualitative difference between
candidates. At the best, an examination can only reflect the current
competence of an individual but not the gamut of their potential,
capabilities or excellence, which are also shaped by lived
experiences, subsequent training and individual character. The
meaning of merit itself cannot be reduced to marks even if it is a
convenient way of distributing educational resources. When
examinations claim to be more than systems of resource allocation,
they produce a warped system of ascertaining the worth of
individuals as students or professionals. Additionally, since success
in examinations results in the ascription of high social status as a
meritorious individual, they often perpetuate and reinforce the
existing ascriptive identities of certain communities as intellectual
and competent by rendering invisible the social, cultural and
economic advantages that increase the probabilities of success.
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Thus, the meaning of merit needs to be reconceptualized. For
instance, if a high-scoring candidate does not use their talents to
perform good actions, it would be difficult to call them meritorious
merely because they scored high marks. The propriety of actions
and dedication to public service should also be seen as markers
of merit, which cannot be assessed in a competitive examination.
Equally, fortitude and resilience required to uplift oneself from
conditions of deprivation is reflective of individual calibre. [Para
25][628-G; 629-A-C; 630-B-E]
Michael Sandel, Tyranny of Merit: What's become of
the Common Good (Penguin Boks), Ashwini
Deshpande, Social Justice Through Affirmative Action
in India: An Assessment, in Jeannette Wicks-Lim
and Robert Pollin (editors) Capitalism on Trial:
Explorations in the Tradition of Thomas Weisskopf,
Publisher:
Edward
Elgar
Publishing
Inc.
(Northampton, MA), 2013, Satish Deshpande, Pass,
Fail, Distinction: The Examination as a Social
Institution. Marjorie Sykes Memorial Lecture,
Regional Institute of Education, Ajmer, 3rd March,
2010. Published by the National Council for
Educational Research and Training, New Delhi -
referred to.
1.4 It is important to clarify here that after the decision in
NM Thomas there is no constitutional basis to subscribe to the
binary of merit and reservation. If open examinations present
equality of opportunity to candidates to compete, reservations
ensure that the opportunities are distributed in such a way that
backward classes are equally able to benefit from such
opportunities which typically evade them because of structural
barriers. This is the only manner in which merit can be a
democratizing force that equalizes inherited disadvantages and
privileges. Otherwise claims of individual merit are nothing but
tools of obscuring inheritances that underlie achievements. If
merit is a social good that must be protected, the content of merit
must first be critically examine. Scores in an exam are not the
sole determinant of excellence or capability. Even if for the sake
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of argument, it is assumed that scores do reflect excellence, it is
not the only value that is considered as a social good. The
distributive consequences of merit must be looked at.
Accordingly, how merit is assessed should also encapsulate if it
mitigates or entrenches inequalities. An oppositional paradigm
of merit and reservation serves to entrench inequalities by
relegating reserved candidates to the sphere of incompetence,
and diminishing their capabilities. While examinations are a
necessary and convenient method to allocate educational
resources, they are not effective markers of merit. The way merit
is understood should not be limited to individual agency or ability
(which in any event is not solely of our own doing) but it should
be envisioned as a social good that advances equality because
that is the value that our Constitution espouses. It is important
to note that equality here does not merely have a redistributive
dimension but also includes recognizing the worth and dignity of
every individual. The content of merit cannot be devoid of what
is valued in society. Based on the above discussion, it is difficult
to accept the narrow definition of merit (that is, decontextualised
individual achievement). Such a definition hinders the realisation
of substantive equality. [Paras 27 and 28][633-D-G; 634-F-G; 635A]
Amartya Sen, "Merit and Justice" in Arrow KJ, et al
(eds), Meritocracy and Economic Inequality
(Princeton University Press 2000) - referred to.
1.5 Coming to the issue of whether reservation can be
permitted in PG courses, it is evident Article 15 (5) does not
make a distinction between UG and PG courses. The Constitution
enables the State to make special provisions for the advancement
of socially and educationally backward classes for admission to
educational institutions at both the UG and PG levels. While on
certain occasions, this Court has remarked that there cannot be
any reservation in SS courses, this Court has never held that
reservations in medical PG courses are impermissible. In Pradeep
Jain, this Court did not hold that reservation in PG courses is
altogether impermissible. It was urged on behalf of the petitioners
that for many individuals PG is the end of the road and therefore,
the PG courses should be equated with SS courses and no
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reservation should be allowed in PG. It is difficult to accept this
argument when this Court has time and again permitted
reservation in PG courses. This argument merely seeks to create
an artificial distinction between the courses offered at the PG
level. Further, only certain medical fields do not have SS courses
and on the basis of that it cannot be deemed that reservation is
impermissible in PG as a whole. Crucially, the issue here is
whether after graduation, an individual is entitled to reservation
on the ground that they belong to a class that suffers from social
and educational backwardness. It cannot be said that the impact
of backwardness simply disappears because a candidate has a
graduate qualification. Indeed, a graduate qualification may provide
certain social and economic mobility, but that by itself does not
create parity between forward classes and backward classes. In
any event, there cannot be an assertion of over-inclusion where
undeserving candidates are said to be benefitting from
reservation because OBC candidates who fall in the creamy layer
are excluded from taking the benefit of reservation. There is no
prohibition in introducing reservation for socially and
educationally backward classes (or the OBCs) in PG courses.
[Para 29][635-B, D-E; 636-A-D]
Dr Preeti Srivastava v. State of Madhya Pradesh (1999)
7 SCC 120 : [1999] 1 Suppl. SCR 249; AIIMS Student
Union v. AIIMS 2002 (1) SCC 428 : [2001] 2 Suppl.
SCR 79; Saurabh Chaudri v. Union of India (2003) 11
SCC 146 : [2003] 5 Suppl. SCR 152 - referred to.
2.1 Having traced the evolution of the AIQ in UG and PG
medical and dental courses, the following questions are answered:
whether this Court in Pradeep Jain held that the AIQ seats that
were to be filled by an open all- India examination should be free
of reservation for the socially and educationally backward classes,
and SC and ST as enabled by Article 15(4); and (ii) whether
reservation in the AIQ can be provided only pursuant to a
direction of this Court. This Court in Pradeep Jain was deciding
on the constitutional validity of reservation based on domicile/
residence. Having held that residence based reservation is
constitutionally valid, the next question that this Court was tasked
with was adjudicating the quantum of residence-based reservation
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that could be permitted. Referring to the decision of this Court
in Jagdish Saran v. Union of India, it was held that there cannot
be wholesale reservation (that is, 100 percent reservation). It
was observed that a certain percentage of seats must be filled by
open merit by an all-India examination without reservation based
on residence. The Medical Education Review Committee had
suggested that 75 percent of the seats in a medical college shall
be reserved for residents of the State. This Court decided that it
would be fair to reserve 70 percent of the seats for residents of
the State. Therefore, 30 percent of the seats were to be filled
through an all-India Examination. This would mean that candidates
from all across the country could compete against the 30 percent
seats available in State run medical colleges. In this context, this
Court had observed, "such reservation should in no event exceed
the outer limit of 70 per cent of the total number of open seats
after taking into account other kinds of reservations validly made"
(paragraph 21). The Bench further observed that at least 30
percent of the open seats shall be available for admission of
students on all-India basis irrespective of the State or University
from which they come and such admissions shall be granted purely
on merit on the basis of either all-India entrance examination or
entrance examination to be held by the State (paragraph 21).
The observation of this Court that AIQ seats must be filled purely
on the basis of merit, cannot be interpreted to mean that there
shall be no reservations in the AIQ seats. Merit must be socially
contextualised and reconceptualized according to its distributive
consequences where it furthers substantive equality in terms of
Articles 15 (4) and 15 (5) of the Constitution. The reference to
merit in paragraph 21 of the judgment must be read with the
previous observations made in the judgment. [Paras 44 and
45][650-E-G; 651-A-D]
Dr Pradeep Jain v. Union of India (1984) 3 SCC 654 :
[1984] 3 SCR 942 - clarified.
Jagdish Saran v. Union of India, 1980 AIR 820 : [1980]
2 SCR 831 - referred to
2.2 While discussing the constitutional validity of domicilereservation, it was observed that selection of candidates for
admission based on the all-India open examination would further
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merit since it would permit the selection of the 'best minds in
the country'. In this context, it was observed that claims that
would weigh with this Court in justifying the departure from the
principle of merit-based selection are: (i) claim of State interest,
where the students by view of their residence are expected to
settle down and serve their State; and (ii) the regions' claim of
backwardness (paragraph 16). Further, it was observed that
though theoretically, admissions in medical colleges should be
based on an all-India examination since it would further merit
and would provide equality of opportunity to candidates across
the country, keeping in view the differing levels of social,
economic, and educational development in different areas, factual
equality would not be attained. Therefore, the AIQ seats shall be
filed through an all-India examination purely on merit, must be
interpreted only with reference to the discussion made on
residence-based reservation and the necessity of an all-India
examination for admission to medical and dental courses.
References to 'merit' must therefore be read in the context of
merit vis-à-vis residence reservation. This is further evident from
the observation in paragraph 21 of the judgment where it was
observed that "atleast 30 per cent of the open seats shall be
available for admission of students on all-India basis irrespective
of the State or university from which they come and such
admissions shall be granted purely on merit on the basis of either
all-India entrance examination or entrance examination to be held
by the State'. The Bench thought it fit that admission through an
all-India entrance examination would further merit, enabling the
best minds all over the country to study medicine. This aspect
was further clarified by the Bench in Dinesh Kumar (I) where this
Court observed that the Union Government and the Medical
Council for India had not taken any initiative to conduct an allIndia entrance examination for admissions to the AIQ seats. The
intention of this Court in Pradeep Jain in creating an AIQ was
solely to provide candidates from across the country the
opportunity to study medicine in colleges in other parts of the
country as well, owing to the unequal number of medical colleges
(and opportunities) in different States. [Paras 46 and 47][651-FH; 652-A-D; 653-B-D]
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Dinesh Kumar (I) v. Motilal Nehru Medical College (1985) 3
SCC 22 : [1985] 1 Suppl. SCR 41 - discussed.
2.3 Reference was made to reservation of backward classes
only for the limited purpose of determining the seat matrix. The
observation in paragraph 21 in Pradeep Jain on the calculation of
seat matrix was clarified in Dinesh Kumar (I). The Bench had
clarified that after reservations (for the SC, ST and OBC provided
by the States) validly made, 30 percent of the remaining seats
would be reserved for AIQ. Therefore, according to the
clarification in Dinesh Kumar(I) on the demarcation of seats, the
first bifurcation should be between reserved and non-reserved
seats, and the seats remaining in the open category must be
bifurcated into State Quota and AIQ. It was thus, a three-fold
vertical reservation, with the reserved category not being
considered within either the AIQ or the State Quota. The logical
fallacy of this method of demarcation of seats is that different
States provide varying percentages of reservation. Therefore,
the total percentage of unreserved seats would inversely depend
on the percentage of reservation provided by the State. The State
of Tamil Nadu raised this objection in Dinesh Kumar (II). Pursuant
to this, it was held that the AIQ seats shall be determined without
excluding any reservation validly made. The seats were first
bifurcated to State quota and AIQ, and the vertical and horizontal
reservations (for example, for persons with disabilities) were
accommodated within the State quota. When the judgment in
Dinesh Kumar (II) was pronounced, the Union Government had
not yet made any decision on providing reservation in AIQ seats.
It was subsequently in 2009 that the Union Government had
taken a policy decision to provide reservation for the SC and ST
categories in the AIQ. It is important to note that in Jayakumar
and Rajeshwaran, the petitioners had sought a direction from this
Court for providing reservation in the AIQ seats. In Rajeshwaran,
this Court declined to ascertain if a person would be entitled to
reservation in the AIQ seats. It was observed that if reservations
for SC and ST categories is to be provided in the AIQ seats, it
would cause difficulty in adjusting seats since the State and the
Central lists would differ. However, when the Union Government
submitted before this Court in Abhay Nath that it had taken the
decision to reserve seats in the AIQ, it was clarified that there
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was no impediment against the implementation of such
reservation. In Buddhi Prakash Sharma, there was a slight
deviation from the settled jurisprudence. This Court had held
that the total number of PG seats in AIQ would be 50 percent of
the total seats without any exclusion for reservation. The Bench
had interpreted the observation in Dinesh Kumar (II) that the
AIQ seats would be determined without excluding reservations
to mean that there would be no reservation in the AIQ. Therefore,
since, Pradeep Jain did not preclude the AIQ seats from
reservation, a three-Judge Bench in Abhay Nath clarified that
the 50 percent AIQ seats in PG medical and dental seats would
be inclusive of reservation for SC and ST categories. [Paras 4851][653-E, G-H; 654-A-C, E-H; 655-A-B]
Dinesh Kumar (II) v. Motilal Nehru Medical College
(1986) 3 SCC 727 : [1986] 3 SCR 345; Union of India
v. Jayakumar (2008) 17 SCC 478; Union of India v. R.
Rajeshwaran (2003) 9 SCC 294; Buddhi Prakash
Sharma v. Union of India (2005) 13 SCC 61 -
discussed.
3. In Abhay Nath, the Union Government had apprised this
Court of its decision to provide reservation for the SC and ST
categories in the AIQ. It had then, as a policy decision decided
to only provide reservation for the SC and ST categories. The
Parliament enacted the Central Educational Institutions
(Reservation in Admission) Act 2006 in view of the enabling
provision in Article 15(5). Section 3 stipulates that there shall be
15 percent reservation for the SC, 7.5 percent reservation for
the ST, and 27 percent reservation for the OBC category in
Central Educational Institutions. A Constitution Bench in Ashoka
Kumar Thakur v. Union of India upheld the Constitutional validity
of 27 percent reservation for the OBC category provided under
the Act of 2006. Though the Act of 2006 would not be applicable
to the seats earmarked for AIQ in State-run institutions since it
would not fall within the definition of a Central educational
institution under the Act, the Union of India in view of Article
15(5) has the power to provide reservations for OBCs in the
AIQ seats. It is not tenable for the States to provide reservation
in the AIQ seats since these seats have been surrendered' to
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the Centre. It would also lead to the anomaly highlighted in Dinesh
Kumar (II) since the percentage of reservation provided by
different States differ, which would lead to an unequal percentage
of seats available in the AIQ in different States. This is also coupled
with the fact that the SC, ST and OBC lists are not uniform across
States. Thus, it is the Union Government's prerogative to
introduce reservation in AIQ seats. [Para 53][655-F-H; 656-AD]
Ashoka Kumar Thakur v. Union of India (2008) 6 SCC
1: [2008] 4 SCR 1; Abhay Nath v. University of Delhi
(2009) 17 SCC 705 - referred to.
4. The impugned notice providing reservation for the OBC
and EWS categories in the AIQ seats was issued after the
registration had closed but before the exam was conducted.
Clause 11 of the information bulletin specifies that the reservation
applicable would be notified by the counselling authority before
the beginning of the counselling process, unlike the facts in Dr
Prerit Sharma. The candidates while applying for NEET-PG are
not provided any information on the distribution of the seat matrix.
Such information is provided by the counselling authority only
before the counselling session is to begin. [Para 58][659-F-G;
660-B-C]
Dr Prerit Sharma v. Dr Bilu Civil Appeal No. 3840 of
2020 - distinguished.
5. Conclusion- In view of the discussion above it is held
that the reservation for OBC candidates in the AIQ seats for UG
and PG medical and dental courses is constitutionally valid for
the following reasons: (i) Articles 15(4) and 15 (5) are not an
exception to Article 15 (1), which itself sets out the principle of
substantive equality (including the recognition of existing
inequalities). Thus, Articles 15 (4) and 15 (5) become a
restatement of a particular facet of the rule of substantive equality
that has been set out in Article 15 (1); (ii) Merit cannot be reduced
to narrow definitions of performance in an open competitive
examination which only provides formal equality of opportunity.
Competitive examinations assess basic current competency to
allocate educational resources but are not reflective of excellence,
capabilities and potential of an individual which are also shaped
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by lived experiences, subsequent training and individual
character. Crucially, open competitive examinations do not reflect
the social, economic and cultural advantage that accrues to certain
classes and contributes to their success in such examinations;
(iii) High scores in an examination are not a proxy for merit. Merit
should be socially contextualized and reconceptualized as an
instrument that advances social goods like equality that we as a
society value. In such a context, reservation is not at odds with
merit but furthers its distributive consequences; (iv) Articles 15
(4) and 15 (5) employ group identification as a method through
which substantive equality can be achieved. This may lead to an
incongruity where certain individual members of an identified
group that is being given reservation may not be backward or
individuals belonging to the non-identified group may share certain
characteristics of backwardness with members of an identified
group. The individual difference may be a result of privilege,
fortune, or circumstances but it cannot be used to negate the
role of reservation in remedying the structural disadvantage that
certain groups suffer; (v) The scheme of AIQ was devised to
allot seats in State-run medical and dental institutions in which
students from across the country could compete. The
observations in Pradeep Jain that the AIQ seats must be filled
by merit, must be read limited to merit vis-à-vis residence
reservation. This Court in Pradeep Jain did not hold that
reservation in AIQ seats is impermissible; (vi) The Union of India
filed an application before this Court in Abhay Nath placing the
policy decision of the Government to provide reservation for the
SC and ST categories in the AIQ seats since until then in view of
the confusion on demarcation of seat matrix, there was no clarity
on whether reservations could be provided in the AIQ seats.
The Union Government was not required to seek the permission
of this Court before providing reservation in AIQ seats.
Therefore, providing reservation in the AIQ seats is a policy
decision of the Government, which will be subject to the contours
of judicial review similar to every reservation policy; (vii) It was
clarified in Dinesh Kumar (II) that the total seats demarcated for
AIQ shall be determined without excluding reservation as was
earlier directed by Pradeep Jain and clarified in Dinesh Kumar
(I). However, this Court in Buddhi Prakash Sharma had
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erroneously construed the clarification in Dinesh Kumar (II) to
mean that there should be no reservation in AIQ seats. Therefore,
the order in Abhay Nath was only clarificatory in view of the
observations in Buddhi Prakash Sharma; and (viii) Clause 11 of
the information bulletin specifies that the reservation applicable
to NEET-PG would be notified by the counselling authority before
the beginning of the counselling process. Therefore, the
candidates while applying for NEET-PG are not provided any
information on the distribution of seat matrix. Such information
is provided by the counselling authority only before the
counselling session is to begin. It thus cannot be argued that the
rules of the game were set when the registration for the
examination closed. The challenge to the constitutional validity
of OBC reservation in AIQ seats introduced through the notice
dated 29 July 2021 is rejected. [Para 59][660-D-H; 661-A-H; 662A-D]
Manjusree v. State of AP (2008) 3 SCC 512 : [2008]
2 SCR 1025; Maharashtra State Road Transport
Corporation v. Rajendra Bhimrao Mandve (2011) 10
SCC 51; Umrao Singh v. Punjabi University (2005) 13
SCC 365 : [2005] 5 Suppl. SCR 530; Tej Prakash
Pathak v. Rajasthan High Court (2013) 4 SCC 540 -
distinguished.
Saloni Kumari v Director General Health Services
WP(C) No 596/2015; Gulshan Prakash v. State of
Haryana (2010) 1 SCC 477: [2009] 16 SCR 1; Ashoka
Kumar Thakur v. Union of India (2007) 4 SCC 361:
2007 (4 ) SCR 493; State of U.P v. Pradip Tandon
[1975] 2 SCR 761; Nookavarapu Kanakadurga Devi
v. Kakatiya Medical College AIR 1972 AP 83; Jagdish
Saran v. Union of India, 1980 AIR 820 : [1980] 2 SCR
831; Dr Sandeep Sadashivrao v. Union of India (2016)
2 SCC 328 : [2015] 14 SCR 328 - referred to.
Indra Sawhney v.