Neil Aurelio Nunes vs Union of India - OBC Reservation Case

Neil Aurelio Nunes vs Union of India - OBC Reservation Case

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (C) No. 961 of 2021
Neil Aurelio Nunes and Ors. … Petitioners
Versus
Union of India and Ors. … Respondents
With
Writ Petition (C) No 967 of 2021
With
Writ Petition (C) No 1002 of 2021
With
Writ Petition (C) No 1021 of 2021
And With
Writ Petition (C) No 1105 of 2021
2
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
This judgment has been divided into the following sections to facilitate analysis:
A. Factual Background ............................................................................................ 3
B. Pendency of the Writ Petition Instituted by Saloni Kumari............................ 10
C. Submissions of Counsel................................................................................... 11
D. Analysis.............................................................................................................. 18
D. 1 The Merit of Reservation............................................................................. 18
D.2 The Court and the AIQ seats ...................................................................... 39
D.3 The Executive’s power to introduce reservation in AIQ seats ................. 59
D.4 Changing the Rules of the Game ................................................................ 61
E. Conclusion ......................................................................................................... 66
PART A
3
A. Factual Background
1 These writ petitions challenge the reservation for Other Backward Classes1
and the Economically Weaker Section2
in the All-India Quota3
seats in the
National Eligibility cum Entrance Test examination4
for undergraduate5
and
postgraduate6 medical courses. The Directorate General of Health Services in the
Union Ministry of Health and Family Welfare7
issued a notice on 29 July 2021
providing 27 percent reservation for OBC (non-creamy layer) and 10 percent
reservation for EWS in the 15 percent UG and 50 percent PG seats in AIQ from
the academic year 2021-2022. By an order dated 7 January 2022, a two-judge
Bench of this Court upheld the constitutional validity of the OBC reservation in
AIQ seats and posted the challenge to the validity of the EWS criteria for final
hearing in the third week of March 2022. This judgement provides reasons for
upholding the permissibility of reservations in the AIQ seats and constitutionality
of OBC reservation in AIQ seats.
2 Some of the salient facts that have led to the implementation of OBC
reservation in AIQ seats are being adverted for setting out the broad contours of
the controversy. While we have discussed in detail the history of the AIQ and the
evolution of an All-India common entrance examination in Section D.2, it is
sufficient to highlight that the scheme of AIQ seats was devised by this Court in

1
“OBC”
2
“EWS”
3
“AIQ”
4
―NEET-PG‖
5
―UG‖
6
―PG‖
7
―MH&FW‖
PART A
4
Dr Pradeep Jain v. Union of India8
to provide domicile free seats in State run
medical and dental institutions. The AIQ scheme was further developed by this
Court in Dinesh Kumar (I) v. Motilal Nehru Medical College9
and Dinesh
Kumar (II) v. Motilal Nehru Medical College10
. Presently, under the AIQ
scheme, 15 percent UG seats and 50 percent PG seats in State–run institutions
are surrendered by the states to the AIQ. The remaining seats in the State
institutions are reserved for candidates domiciled in the respective States.
3 The Constitution (Ninety-Third Amendment) Act 2005 amended Article 15 of
the Constitution by inserting clause (5) to Article 15 to empower the State to
make special provisions (including reservation) for the advancement of socially
and educationally backward classes (or the OBCs) relating to their admission in
educational institutions. Article 15 (5) reads thus:
―(5) Nothing in this article or in sub-clause (g) of clause
(1) of article 19 shall prevent the State from making any
special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or
for the Scheduled Castes or the Scheduled Tribes in so
far as such special provisions relate to their admission to
educational institutions including private educational
institutions, whether aided or unaided by the State, other
than the minority educational institutions referred to in
clause (1) of article 30.‖
4 In Abhay Nath v. University of Delhi11, this Court held that reservations for
Scheduled Caste12 and Scheduled Tribe13 candidates are permissible in the AIQ
seats. The Central Educational Institutions (Reservation in Admissions) Act

8
(1984) 3 SCC 654
9
(1985) 3 SCC 22
10 (1986) 3 SCC 727
11 (2009) 17 SCC 705
12 “SC”
13 “ST”
PART A
5
200614, which came into effect on 3 January 2007, was enacted to provide for
reservation for students belonging to the SCs, STs and OBCs in Central
educational institutions. The Act of 2006 provided that 15 percent seats shall be
reserved for SCs, 7.5 percent seats for STs, and 27 percent seats for OBCs in
Central educational institutions. However, reservation for OBCs was not
extended to State contributed seats for AIQ in State-run institutions.
5 The State of Tamil Nadu granted 50 percent reservation to OBCs in Staterun medical institutions under the Tamil Nadu Backward Classes, Scheduled
Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions
and of Appointments or Posts in the Services under the State) Act, 199315
. Thus,
the State quota seats were being filled according to the provisions of the Act of
1993. A writ petition16 was instituted before this Court by Dravida Munnetra
Kazhagam
17 seeking a mandamus to provide OBC reservation in AIQ. This Court
by its order dated 11 June 2020 directed that the issue be agitated before the
Madras High Court. This Court observed thus:
―The learned senior counsel for the petitioners seek
permission to withdraw these Writ Petitions with liberty to
approach the High Court by filing Writ Petitions under
Article 226 of the Constitution.
Permission granted.
The Writ Petitions are, accordingly, dismissed as
withdrawn with the aforesaid liberty.‖
6 Pursuant to the above order, DMK instituted a writ petition18 before the
Madras High Court arguing that the AIQ seats available in State-run medical and

14 ―Act of 2006‖
15 ―Act of 1993‖
16 WP No 507 of 2020
17 ―DMK‖
18 WP No 8326 of 2020
PART A
6
dental institutions in the State of Tamil Nadu must follow the reservation policy as
applicable under the Act of 1993. However, the Madras High Court after issuing
notice in the petition accepted the argument of the Union Government that the
hearing in the matter be deferred in view of the pendency of a writ petition19
before this Court on a similar issue. Aggrieved by the deferral of the hearing,
special leave petitions were instituted before this Court. By its order dated 13 July
2020, this Court disposed of the petitions holding that the issue raised in the writ
petition pending before it is different from the one raised by the DMK before the
Madras High Court and directed the High Court to proceed with the hearing of the
case. This Court made the following observations:
―Permission to file Special Leave Petition without
certified/plain copy of impugned order in Diary No.
13644/2020 is granted.
These special leave petitions are directed against the
order dated 22.6.2020 by which the High Court adjourned
the matters in view of the pendency of Writ Petition
No.596 of 2015 in this Court. This order was passed on
the basis of the stand taken by the Union of India that the
points arising in the writ petitions filed in the High Court
are similar to those that arose in Saloni Kumari and Anr.
Versus DGHS & Ors. (Writ Petition No.596 of 2015).
We have perused the writ petition filed by Saloni Kumari
which is pending consideration in this Court. The issue
that arises in the writ petition pertains to the
implementation of 27% seats for admission to Post
Graduate courses in the All India Quota. The complaint of
the petitioner is that the seats in the 27% quota of OBCs
should not be restricted to Central Government
institutions.
Whereas, the writ petitions pending in the High Court
involve a dispute pertaining to the percentage of
reservation to be followed in State of Tamil Nadu in
respect of the surrendered seats in the All India Quota for
PG medical admissions.
As the point raised in the writ petitions pending in the
High Court is not similar to that in Saloni Kumari‘s case,
the High Court can proceed to adjudicate the writ

19 Saloni Kumari v Director General Health Services WP(C) No 596/2015.
PART A
7
petitions on merits. We are informed that the writ petitions
are listed before the High Court for final hearing on
17.7.2020. The High Court is requested to decide the writ
petitions expeditiously.
Special Leave Petitions are disposed of accordingly.‖
7 The Madras High Court by its judgement dated 27 July 2020 disposed of the
writ petition holding that there are no legal or constitutional impediments in
extending reservation to OBCs in the AIQ seats in the medical colleges in the
State of Tamil Nadu. The High Court directed the Union Government to constitute
an Expert Committee for implementing reservation for OBCs in the seats
surrendered by the State of Tamil Nadu in AIQ. However, the High Court
observed that the reservation should be implemented only from the academic
year 2021-2022 since it would disturb the selection process that had been set
into motion for the academic year of 2020-2021. The State of Tamil Nadu
challenged the order of the Madras High Court dated 27 July 2020 before this
Court in a special leave petition20 on the limited ground that the High Court erred
in denying implementation of the OBC reservation for the academic year 2020-
2021. In its order dated 26 October 2020, this Court upheld the order of the High
Court regarding the implementation of the OBC reservation from the subsequent
academic year 2021-2022.
8 The MH&FW set up an Expert Committee to determine the modalities of
granting reservation to OBC candidates in AIQ seats in UG and PG courses in
state-run medical colleges within the State of Tamil Nadu from the academic year
2021-2022. The Committee recommended two options in its final report, i.e.,

20 SLP (C) No 9286 of 2020
PART A
8
either State-specific reservation can be implemented for OBCs in AIQ seats or
OBC reservation can be granted in terms of the provisions of the Act of 2006.
9 A Contempt petition21 was instituted by DMK before the Madras High Court
against the Union of India for non-implementation of OBC reservation in AIQ
seats. In the meanwhile, a notice dated 29 July 2021 was issued by the
Directorate General of Health Services, MoHFW to implement 27 percent OBC
reservation (non-creamy Layer) and 10 percent EWS reservation in the 15
percent UG and 50 percent PG AIQ seats in the current academic session of
2021-22. The notice stated thus:
“NOTICE
Urgent Attention Candidates of NEET-UG and NEETPG:
It has been decided by the Government of India to
implement 27% OBC reservation (Non-creamy later) and
10% EWS reservation in the 15% AIQ UG seats and the
50% All India Quota seats (MBBS/BDS and
MD/MS/MDS) (contributed by the State/UTs). This
reservation will take effect from the current Academic
session 2021-22.
Consequently, the overall reservation in 15% UG and
50% PG All India Quota seats would be as follows:
SC-15%
ST-7.5%
OBC (Non-creamy layer) as per the Central OBC list-27%
EWS- as per the Central Government Norms-10%
PwD-5% Horizontal Reservation as per NMC Norms‖

21 Contempt Petition No 181 of 2021
PART A
9
10 By its order dated 25 August 2021, the Madras High Court dismissed the
contempt petition since the Union Government had complied with the order dated
27 July 2020 of the Madras High Court by constituting a committee. The High
Court observed thus:
―Since the committee required to be constituted by the
order dated July 27, 2020 was instituted and such
committee gave its opinion and the Union, or its
appropriate agencies, have acted on the basis thereof,
albeit not exactly in terms of the recommendations, no
case of willfull or deliberate violation of the said order can
be said to have been made out."
Nonetheless, the High Court proceeded to scrutinize the validity of the notification
dated 29 July 2021 providing reservation for OBC and EWS candidates in AIQ
seats in medical and dental institutions. With respect to the reservation granted to
EWS under the notification dated 29 July 2021, the High Court observed that
such reservation can be permitted only with the approval of this Court. Special
leave petitions were instituted before this Court challenging the order of the
Madras High Court. This Court by its order dated 24 September 2021 disposed of
the petitions observing that the Madras High Court in its contempt jurisdiction
could not have entered into a discussion on the validity of the EWS reservation
provided by the notice dated 29 July 2021 and set aside the direction that the
approval of this Court should be received before implementing reservation for the
EWS category in AIQ seats.
11 We have traced the trajectory of the introduction of OBC reservation in
NEET AIQ seats, which is challenged before this Court in the present batch of
writ petitions. By its order dated 7 January 2022, this Court upheld the
constitutional validity of the OBC reservation in AIQ medical and dental UG and
PART B
10
PG seats. The constitutionality of the criteria used for the identification of the
EWS category is yet to be decided. However, in the interim, this Court directed
that the counselling in NEET-PG 2021 and NEET-UG 2021 be conducted by
giving effect to the reservation provided by the notice dated 29 July 2021,
including the 27 percent OBC reservation and 10 percent EWS reservation. The
challenge to the validity of the OBC reservation in AIQ seats is dealt with in this
judgement.
B. Pendency of the Writ Petition instituted by Saloni Kumari
12 We are aware that a writ petition was filed by Saloni Kumari seeking 27
percent OBC reservation in AIQ seats in State-run medical institutions on the
ground that such reservation should not be restricted to Central education
institutions in terms of the Act of 2006. The claim raised in that petition was of
parity. The issue that has been raised before us is of the validity of the notification
dated 29 July 2021 that provides for 27 percent OBC reservation in the AIQ seats
in UG and PG seats from the academic year 2021-2022. On account of the
difference in the nature of the issues raised before this Court, we will proceed to
rule on the validity of the notification dated 29 July 2021.
PART C
11
C. Submissions of Counsel
13 Mr Shyam Divan, learned Senior Counsel appearing for the petitioners
argued that there must be no reservation for the OBC community in the AIQ
quota. In pursuance of this argument, he made the following submissions:
(i) In Pradeep Jain v. Union of India22
, this Court raised serious
concerns about the reservation in PG seats. Once a person is qualified
as a doctor, he cannot be treated as belonging to a backward class
anymore. Therefore, admission in PG seats must be purely based on
merit, without any reservation;
(ii) At the level of PG and super-speciality23, doctors are required to
possess high degree of skill and expert knowledge in specialised
areas. This skill cannot be acquired by everyone. It would be
detrimental to national interest to have reservations at this stage.
Opportunities that are available for such training are minimal and
therefore, it should only be available to the most meritorious;
(iii) This Court in Pradeep Jain (supra) created a right against reservation
in the AIQ seats. The judgment of this Court in Abhay Nath v.
University of Delhi24
 allowing reservations for SC and ST categories
in the AIQ is per incuriam in light of the judgments in Pradeep Jain
(supra), Union of India v. R. Rajeshwaran25 and Union of India v.
Jayakumar26;

22 (1984) 3 SCC 654
23 “SS”
24 (2009) 17 SCC 705
25 (2003) 9 SCC 294
26 (2008) 17 SCC 478
PART C
12
(iv) The AIQ scheme was conceived by this Court in Pradeep Jain (supra)
and developed in Dinesh Kumar (I) (supra) and Dinesh Kumar (II)
(supra). Therefore, only this Court can alter the reservation scheme in
the AIQ seats. The Union Government ought to have made an
application to this Court apprising it of its intention to provide
reservation for OBC and EWS categories in AIQ, and this Court could
decide to allow or deny permission;
(v) It has been held by this Court in Dr Preeti Srivastava v. State of
Madhya Pradesh27 and various other cases that reservation in PG
courses must be minimum;
(vi) Even if reservation for the OBC category in the AIQ seats is
constitutionally valid, it ought not to have been introduced for the
academic year of 2021-22 since the notice on reservation for the OBC
category was introduced after the registration window was closed. It is
a settled principle that the rules of the game cannot be changed after
the game has begun;
(vii) The candidates had registered for the exam against a certain seat
matrix, having knowledge of the total number of seats for which they
could compete. The impugned notification alters the seat matrix,
changing the rules of the game after the game had begun;
(viii) The phrase ‗as may be applicable‘ in clause 11.1 of the information
bulletin must be read to mean the reservation applicable as on the date

27 (1999) 7 SCC 120
PART C
13
of registration. The rules of the game were set when the registration
closed; and
(ix) In specific branches of specialisation such as MD Radiology, MD
Dermatology, MD Gynaecology, MS Psychiatry, MD (Chest), MD
Preventive and Social Medicine, MD Forensic Medicine, MS
Microbiology, MS Pathology, MD Biochemistry, MS Anatomy, MS
Orthopedics, and MS ENT, no SS course is offered in India. Therefore,
such courses are the end of the branch and there must be no
reservation in such courses since they are equivalent to SS courses
(Dr. Preeti Srivastava (supra)).
14 The Union of India addressed the following arguments contending that the
27 percent reservation for the OBC category in AIQ seats is constitutionally valid.
Mr Tushar Mehta, Solicitor General and Mr KM Nataraj, Additional Solicitor
General made the following submissions:
(i) The rules of the game were not changed after the process had begun
since the reservation through the impugned notice issued on 29 July 2021
was introduced much prior to the date on which the exams were conducted
and before the commencement of the counselling process. The NEET PG
examination schedule is as follows:
(a) Release of Information Brochure: 23 February 2021
(b) Commencement of Registration Process: 23 February 2021
(c) Last date of Registration: 15 March 2021
(d) Scheduled examination date: 18 April 2021
(e) Postponement for four months on: 03 May 2021
PART C
14
(f) New date of examinations announced on: 13 July 2021
(g) New date for examination: 11 September 2021
Clause 11.1 of the information bulletin issued on 23 February 2021 states
that reservation of PG seats shall be as per the norms of the Central
Government and the respective State Governments. Clause 11.2 states
that a separate handbook providing information on the counselling process
and applicable reservation shall be released by the designated counselling
authority for NEET-PG 2021. Therefore, the process begins only with the
commencement of the counselling process and not when the registration
closes;
(ii)Reservation in AIQ seats according to the impugned notice has been
implemented for MDS admissions in the current academic year of 2021-22;
(iii) The AIQ scheme was introduced in 1986 to provide domicile free
admission to students from across the country. Till 2007, there was no
reservation in the AIQ. In 2007, this Court in the case of Abhay Nath
(supra) permitted 15 percent reservation for the SCs and 7.5 percent
reservation for the STs in the AIQ seats. The Act of 2006 providing 27
percent reservation to OBCs which came into force in 2007 was
implemented in all Central educational institutions, including medical
colleges run by the Central Government;
(iv) The AIQ scheme is a Central scheme. Therefore, the Central List of OBCs
shall be used for implementing the reservation. Around 1500 OBC students
in UG and 2500 in PG will be benefitted through reservation for OBC
category in AIQ seats;
PART C
15
(v) In the last six years, MBBS seats in the country have been increased by 56
percent from 54,348 in 2014 to 84,649 seats in 2020. The number of PG
medical seats has been increased by 80 percent from 30,191 seats in
2014 to 54,275 seats in 2020;
(vi) Providing reservation for the AIQ seats in medical/dental courses is a
matter of policy;
(vii)Though observations have been made by this Court on the desirability or
otherwise of reservation in PG courses, it has never been held to be
unconstitutional; and
(viii) This Court in Pradeep Jain (supra) only held that there would be no
domicile-based reservation in the AIQ seats. It was not held that no
reservation otherwise would be impermissible in the AIQ seats.
Subsequent decisions of this Court (Saurabh Chaudri v. Union of India28;
Gulshan Prakash v. State of Haryana29) have clarified that this Court in
Pradeep Jain (supra) had only observed that the AIQ seats shall be free
from domicile reservation.
15 Mr P Wilson, learned Senior Counsel appearing for the DMK, submitted
that the 27 percent reservation for the OBC seats in the AIQ is constitutionally
valid. The Senior Counsel made the following submissions:
(i) Parliament by the Constitution (Ninety-Third Amendment) Act 2005
introduced Clause (5) in Article 15 providing reservation for the SCs, STs
and socially and educationally backward classes (or the OBCs) in
admission to educational institutions, including private educational

28 (2003) 11 SCC 146
29 (2010) 1 SCC 477
PART C
16
institutions, aided or unaided by the State and other minority educational
institutions. Pursuant to the amendment, the Union Government enacted
the Act of 2006 providing 27 percent reservation for the OBC category in
Central educational institutions. The Supreme Court upheld the
constitutional validity of the Ninety-Third Constitutional Amendment and
the Act of 2006 in Ashoka Kumar Thakur v. Union of India30. The Tamil
Nadu State legislature enacted the Tamil Nadu Backward Classes,
Scheduled Castes and Scheduled Tribes (Reservation of Seats in
Educational Institutions and of Appointments or Posts in the Services
under the State) Act 1993 providing 69 percent reservation. The enactment
permits 50 percent reservation for backward classes and the most
backward classes. Therefore, both the State legislature and the Parliament
allow reservation for the OBC category;
(ii) Regulation 9(IV) of the PG Medical Education Regulations 2000 and
Regulation 5(5) of the UG Medical Education Regulations stipulate
reservation for the categories based on the applicable laws prevailing in
the States/Union Territories. Therefore, reservation must be applicable to
all seats including the State contributed seats of AIQ;
(iii)Merit cannot be measured solely in terms of marks. Merit must be
construed in terms of the social value of a member in the medical
profession (Pradeep Jain (supra);
(iv) In UG courses, the States contribute 15 percent seats to the AIQ. Of the
6060 seats in the AIQ contributed by the States, 1636 seats (that is 27

30 (2007) 4 SCC 361
PART C
17
percent) seats ought to have been reserved for the OBC category on the
enactment of the Act of 2006. Similarly, 2569 of the 9515 seats contributed
by the States to the AIQ in PG courses ought to have been reserved for
the OBC category;
(v) The Madras High Court in a judgment dated 27 July 2020 (in WP No. 8626
of 2020) had observed that there was no legal or constitutional impediment
in extending the benefit of reservation to the OBC category in the AIQ in
PG courses. The petitioners have not challenged the judgment of the
Madras High Court;
(vi) Clause 11 of the information bulletin for the NEET-PG examination states
that reservation would be ‗as per the norms of GOI and State prevailing at
the time of counselling’. Therefore, the argument of the petitioners that the
rules of the game should not be changed in the middle of the game would
be applicable only if the reservation was introduced after the counselling
had begun;
(vii) The submission of the petitioners that no reservation was provided at the
level of SS in view of the judgment of this Court in Dr. Preeti Srivastava
(supra) is erroneous since the Act of 2006 only exempts reservations in
institutions of excellence, research institutions, and institutions of national
and strategic importance specified in the schedule of the Act, and Minority
Educational Institutions as referred to under section 4 of the Act of 2006.
Reservation is provided in SS courses in Central educational institutions
such as AIIMS and JIPMER;
PART D
18
(viii) Central medical institutions such as AIIMS and PGI hold their own
examination twice a year for PG courses. There is no demarcation of State
Quota and AIQ in these Central institutions. Therefore, the AIQ PG seats
are different from PG seats of Central institutions; and
(ix)Reservation can be provided either through a legislation or by an executive
order such as a notification, order, and memorandum.
16 The arguments of the petitioners are three-fold: (i) Admissions to PG
courses must solely be based on open competition; (ii) this Court in Pradeep
Jain (supra) and subsequent cases has held that there shall be no reservation in
the AIQ seats and that admission to the AIQ seats shall be strictly by open
competition; and (iii) as this Court evolved the concept of AIQ seats, any
reservation to be introduced in the AIQ seats must only be pursuant to the
direction of this Court.
D. Analysis
D. 1 The Merit of Reservation
17 On behalf of the petitioners, it was urged 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. In effect, a binary was sought to be
created between merit and reservation, where reservation becomes antithetical to
establishing meritocracy. This is not a novel argument. There has been a
longstanding debate over whether reservation for any class impinges on the idea
of merit. In the Constituent Assembly Debates on draft Article 10, which has been 
PART D
19
incorporated as Article 16 of the Constitution, some members raised concerns on
the inclusion of clause (3) to draft Article 10 (now Article 16 (4) of the
Constitution) which provided that the State is empowered to make reservation in
appointments or posts in favour of any backward class of citizens who, in the
opinion of the State, is not adequately represented in the services under the
State. Certain members of the Constituent Assembly argued for the deletion of
clause (3). For instance, Shri Loknath Misra stated that such a provision puts, ―a
premium on backwardness and inefficiency‖ and no citizen had a fundamental
right ―to claim a portion of State employment, which ought to go by merit alone.‖
Shri Damodar Swarup Seth argued that reservation results in the ―very negation
of efficiency and good Government‖ and appointments should be ―made on merit
and qualification‖. However, the Constituent Assembly rejected these claims and
adopted clause (3) of draft Article 10. Although there was debate on the meaning
of ―backward classes‖, it was felt that there must be a provision that enables entry
of those communities into administration since they were deprived of such access
in the past and formal equality of opportunity would not suffice.
31 However, the
view that merit or efficiency in service is distinct from concerns of advancement of
backward classes persisted for some members. Shri KM Munshi (a member of
the Drafting Committee) observed that:
―What we want to secure by this clause [Article 10] are two
things. In the fundamental right in the first clause we want to
achieve the highest efficiency in the services of the State--
highest efficiency which would enable the services to function
effectively and promptly. At the same time, in view of the
conditions in our country prevailing in several provinces, we
want to see that backward classes, classes who are really
backward, should be given scope in the State services; for it

31 Volume 7, Constituent Assembly of India Debates, 30 November 1948, available at
https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-11-30
PART D
20
is realised that State services give a status and an
opportunity to serve the country, and this opportunity should
be extended to every community, even among the backward
people.‖
However, many members also recognized that merit cannot be separated from
the function of the existing inequalities in society. They envisaged that social
justice must be read into the promise of equality of opportunity; otherwise the
latter merely advances the interests of the privileged. During the debates on draft
Article 286, which pertained to the functions of Public Service Commission with
regard to appointments to public posts, Dr PS Deshmukh argued that:
―…people's capacities cannot be measured by mere passing
of examinations or obtaining the highest possible marks. But
those communities who have had the advantage of English
education, because they were prepared to be more servile
than the rest, think it is a preserve of theirs, and whenever
anybody gets up and speaks on behalf of the millions who
have had no chances of education, they consider it as a
threat to their monopoly on the part of the rest of the
communities and accuse the advocates as communal and
communally minded. There is no communalism in this.
Neither I nor anybody who speaks on their behalf want any
particular community to dominate, where as those who
oppose this move are interested only in particular
communities. They want to preserve communalism while
accusing us of communalism because they have had the
advantage of education which they fear will be taken away.
They think and urge that merit is or can be tested only by
examinations. But so far as the masses of the country are
concerned, the millions of our populations who have not had
even the chance to get primary school education, they have
no place so far as the public services are concerned, so long
as the present system lasts.‖32
Shri Phool Singh emphatically provided a conception of substantive equality
when he stated that merit of candidates cannot be evaluated through an open
competition without regard to their social positions. He further highlighted that the
meaning of merit should also take into reference the task that is to be carried out.
He stated thus:

32 Volume 9, Constituent Assembly of India Debates, 23 August 1949, available at
https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-08-23
PART D
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―…Much has been made of merit in this case; but equal merit
pre-supposes equal opportunity, and I think it goes without
saying that the toiling masses are denied all those
opportunities which a few literate people living in big cities
enjoy. To ask the people from the villages to compete with
those city people is asking a man on bicycle to compete with
another on a motorcycle, which in itself is absurd. Then again,
merit should also have some reference to the task to be
discharged. Mr.Tyagi interrupted Dr. Deshmukh by saying
that it is a fight for the illiterates. I think, however sarcastic
that remark may be, he was probably right. Self-Government,
means a government by the people, and if the people are
illiterate, a few leaders have no right to usurp all the power to
themselves. This cry, this bogey of merit and fair-play is being
raised by those who are in a[n] advantageous position and
who stand to suffer if others also come into the picture.‖33
While these observations were made in the context of employment to public
posts, the debate on conceptualisation of reservation as an exception to the
principle of merit has relevance in regard to admission to educational institutions
as well. The debates in Constituent Assembly were limited to reservation in public
posts because reservation in educational institutions was introduced through a
subsequent constitutional amendment.
18 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 Mysore34, 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

33 Ibid
34 1963 Supp (1) SCR 439
PART D
22
society at large would be served by promoting advancements of the weaker
elements in the society‖.35 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.
36 This Court stated:
―32. …Therefore, in considering the question about the
propriety of the reservation made by the impugned order, we
cannot lose sight of the fact that the reservation is made in
respect of higher university education. 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 to national
interests if considerations of merit are completely excluded by
whole-sale reservation of seat in all technical, Medical or
Engineering colleges or institutions of that kind. Therefore,
considerations of national interest and the interests of the
community or society as a whole cannot be ignored in
determining the question as to whether the special provision
contemplated by Article 15(4) can be special provision which
exclude the rest of the society altogether. In this connection, it
would be relevant to mention that the University Education
Commission which considered the problem of the assistance
to backward communities, has observed that the percentage
of reservation shall not exceed a third of the total number of
seats, and it has added that the principle of reservation may
be adopted for a period of ten years (p. 53).‖
19 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.
37 However, the dominant view of this Court was
challenged by the Justice R Subba Rao in his dissent in T. Devadasan v. Union
of India, where the learned judge stated that Article 16 (4) is not an exception but

35 Ibid, paragraph 31.
36 Ibid, paragraph 34.
37 T. Devadasan v. Union of India (1964) 4 SCR 680; CA Rajendran v. Union of India (1968) 1 SCR 721
PART D
23
rather a facet of Article 16 (1), which seeks to redress the historical disadvantage
suffered by certain communities. Justice Subba Rao observed thus:
―26. Article 14 lays down the general rule of equality. Article
16 is an instance of the application of the general rule with
special reference to opportunity of appointments under the
State. It says that there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to
any office under the State. If it stood alone, all the backward
communities would go to the wall in a society of uneven basic
social structure; the said rule of equality would remain only an
utopian conception unless a practical content was given to it.
Its strict enforcement brings about the very situation it seeks
to avoid. To make my point clear, take the illustration of a
horse race. Two horses are set down to run a race —one is a
first class race horse and the other an ordinary one. Both are
made to run from the same starting point. Though
theoretically they are given equal opportunity to run the race,
in practice the ordinary horse is not given an equal
opportunity to compete with the race horse. Indeed, that is
denied to it. So a handicap may be given either in the nature
of extra weight or a start from a longer distance. By doing so,
what would otherwise have been a farce of a competition
would be made a real one. The same difficulty had confronted
the makers of the Constitution at the time it was made.
Centuries of calculated oppression and habitual submission
reduced a considerable section of our community to a life of
serfdom. It would be well nigh impossible to raise their
standards if the doctrine of equal opportunity was strictly
enforced in their case. They would not have any chance if
they were made to enter the open field of competition without
adventitious aids till such time when they could stand on their
own legs. That is why the makers of the Constitution
introduced clause (4) in Article 16. The expression ―nothing in
this article‖ is a legislative device to express its intention in a
most emphatic way that the power conferred thereunder is
not limited in any way by the main provision but falls outside
it. It has not really carved out an exception, but has preserved
a power untrammelled by the other provisions of the article.‖
20 The view expressed by Justice Subba Rao was adopted by this Court in
State of Kerala v. NM Thomas38, which transformed the equality jurisprudence
in India from that of formal equality to substantive equality; thus, also changing
our understanding of reservations. Chief Justice AN Ray writing the judgement of
this Court held:

38 (1976) 2 SCC 310
PART D
24
―44. Our Constitution aims at equality of status and
opportunity for all citizens including those who are socially,
economically and educationally backward. The claims of
members of Backward Classes require adequate
representation in legislative and executive bodies. If members
of Scheduled Castes and tribes, who are said by this Court to
be Backward Classes, can maintain minimum necessary
requirement of administrative efficiency, not only
representation but also preference may be given to them to
enforce equality and to eliminate inequality. Article 15(4) and
16(4) bring out the position of Backward Classes to merit
equality. Special provisions are made for the advancement of
Backward Classes and reservations of appointments and
posts for them to secure adequate representation. These
provisions will bring out the content of equality guaranteed by
Articles 14, 15(1) and 16(1). The basic concept equality is
equality of opportunity for appointment. Preferential treatment
for members of Backward Classes with due regard to
administrative efficiency alone can mean equality of
opportunity for all citizens. Equality under Article 16 could not
have a different content from equality under Article 14.
Equality of opportunity for unequals can only mean
aggravation of inequality. Equality of opportunity admits
discrimination with reason and prohibits discrimination without
reason. Discrimination with reasons means rational
classification for differential treatment having nexus to the
constitutionally permissible object. Preferential representation
for the Backward Classes in services with due regard to
administrative efficiency is permissible object and Backward
Classes are a rational classification recognised by our
Constitution. Therefore, differential treatment in standards of
selection are within the concept of equality.‖
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-centric39(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

39 Ibid, paragraph 52.
PART D
25
identification of groups that do not enjoy equal access to certain rights and
entitlements. The learned judge made the following observations:
―73. There is no reason why this Court should not also require
the State to adopt a standard of proportional equality which
takes account of the differing conditions and circumstances of
a class of citizens whenever those conditions and
circumstances stand in the way of their equal access to the
enjoyment of basic rights or claims.
74. The concept of equality of opportunity in matters of
employment is wide enough to include within it compensatory
measures to put the members of the Scheduled Castes and
scheduled tribes on par with the members of other
communities which would enable them to get their share of
representation in public service. How can any member of the
so-called forward communities complain of a compensatory
measure made by the Government to ensure the members of
Scheduled Castes and scheduled tribes their due share of
representation in public services?
75. It is said that Article 16(4) specifically provides for
reservation of posts in favour of Backward Classes which
according to the decision of this Court would include the
power of the State to make reservation at the stage of
promotion also and therefore Article 16(1) cannot include
within its compass the power to give any adventitious aids by
legislation or otherwise to the Backward Classes which would
derogate from strict numerical equality. If reservation is
necessary either at the initial stage or at the stage of
promotion or at both to ensure for the members of the
Scheduled Castes and scheduled tribes equality of
opportunity in the matter of employment, I see no reason why
that is not permissible under Article 16(1) as that alone might
put them on a parity with the forward communities in the
matter of achieving the result which equality of opportunity
would produce. Whether there is equality of opportunity can
be gauged only by the equality attained in the result. Formal
equality of opportunity simply enables people with more
education and intelligence to capture all the posts and to win
over the less fortunate in education and talent even when the
competition is fair. Equality of result is the test of equality of
opportunity.‖
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 
PART D
26
content of Article 16 (1) is not individual-centric 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. The learned judge observed thus:
―137. ―reservation‖ based on classification of backward and
forward classes, without detriment to administrative standards
(as this Court has underscored) is but an application of the
principle of equality within a class and grouping based on a
rational differentia, the object being advancement of
backward classes consistently with efficiency. Article 16(1)
and (4) are concordant. This Court has viewed Article 16(4)
as an exception to Article 16(1). Does classification based on
desperate backwardness render Article 16(4) redundant? No.
Reservation confers pro tanto monopoly, but classification
grants under Article 16(1) ordinarily a lesser order of
advantage. The former is more rigid, the latter more flexible,
although they may overlap sometimes. Article 16(4) covers all
backward classes; but to earn the benefit of grouping under
Article 16(1) based on Articles 46 and 335 as I have
explained, the twin considerations of terrible backwardness of
the type harijans endure and maintenance of administrative
efficiency must be satisfied.‖
21 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. Justice Fazal Ali made the following observations:
―158. It is no doubt true that Article 16(1) provides for equality
of opportunity for all citizens in the services under the State. It
is, however, well-settled that the doctrine contained in Article
16 is a hard and reeling reality, a concrete and constructive
concept and not a rigid rule or an empty formula. It is also
equally well-settled by several authorities of this Court that
Article 16 is merely an incident of Article 14, Article 14 being
the genus is of universal application whereas Article 16 is the
species and seeks to obtain equality of opportunity in the
services under the State. The theory of reasonable
classification is implicit and inherent in the concept of equality 
PART D
27
for there can hardly be any country where all the citizens
would be equal in all respects. Equality of opportunity would
naturally mean a fair opportunity not only to one section or the
other but to all sections by removing the handicaps if a
particular section of the society suffers from the same. It has
never been disputed in judicial pronouncements by this Court
as also of the various High Courts that Article 14 permits
reasonable classification. But what Article 14 or Article 16
forbid is hostile discrimination and not reasonable
classification. In other words, the idea of classification is
implicit in the concept of equality because equality means
equality to all and not merely to the advanced and educated
sections of the society. It follows, therefore, that in order to
provide equality of opportunity to all citizens of our country,
every class of citizens must have a sense of equal
participation in building up an egalitarian society, where there
is peace and plenty, where there is complete economic
freedom and there is no pestilence or poverty, no
discrimination and oppression, where there is equal
opportunity to education, to work, to earn their livelihood so
that the goal of social justice is achieved. Could we, while
conferring benefits on the stronger and the more/advanced
sections of the society, ignore the more backward classes
merely because they cannot come up to the fixed standards?
Such a course, in my opinion, would lead to denial of
opportunity to the backward classes resulting in complete
annihilation of the concept of equality contained in Articles 14
and 16. The only manner in which the objective of equality as
contemplated by the founding fathers of our Constitution and
as enshrined in Articles 14 and 16 can be achieved is to
boost up the backward classes by giving them concessions,
relaxations, facilities, removing handicaps, and making
suitable reservations so that the weaker sections of the
people may compete with the more advanced and in due
course of time all may become equals and backwardness is
banished for ever. This can happen only when we achieve
complete economic and social freedom. In our vast country
where we have diverse races and classes of people, some of
whom are drowned in the sea of ignorance and illiteracy, the
concept of equality assumes very important proportions.
There are a number of areas in some States like Kashmir,
Sikkim, hilly areas of U.P., Bihar and the South, where due to
lack of communications or transport, absence of proper
educational facilities or because of old customs and
conventions and other environmental reasons, the people are
both socially and educationally backward. Could we say that
the citizens hailing from these areas should continue to
remain backward merely because they fall short of certain
artificial standards fixed by various institutions? The answer
must be in the negative. The directive principles enshrined in
our Constitution contain a clear mandate to achieve equality
and social justice. Without going into the vexed question as to
whether or not the directive principles contained in Part IV
override the fundamental rights in Part III there appears to be
a complete unanimity of judicial opinion of this Court that the
directive principles and the fundamental rights should be
construed in harmony with each other and every attempt 
PART D
28
should be made by the Court, to resolve any apparent
inconsistency. The directive principles contained in Part IV
constitute the stairs to climb the high edifice of a socialistic
State and the fundamental rights are the means through
which one can reach the top of the edifice. I am fortified in my
view by several decisions of this Court to which I will refer
briefly.‖
22 Even if the judges differed on whether Article 16 (1) is individual-centric or
group-centric, they nonetheless accepted that Article 16 (4) is crucial to achieve
substantive equality that is envisaged under Article 16 (1). Articles 16 (4), 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 individual
members of an identified group may not be backward or individuals belonging to
the non-identified group may share certain characteristics of backwardness with
members of an identified group. However, this does not change the underlying
rationale of the reservation policy that seeks to remedy the structural barriers that
disadvantaged groups face in advancing in society. Reservation is one of the
measures that is employed to overcome these barriers. 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.
23 The view that special provisions made for a backward class are not an
exception to the principle of equality was re-affirmed by a nine-Judge Bench in
Indira Sawhney v. Union of India40. These observations were made in the
context of Articles 16 (1) and 16(4). In Dr Jaishri Laxmanrao Patil v. Chief
Minister41, this Court has observed that the principles applied for interpreting

40 1992 Supp (3) SCC 217
41 (2021) 8 SCC 1
PART D
29
Article 16 are also to be used for the interpretation of Article 15. Thus, Articles 15
(4) and Article 15 (5) are nothing but a restatement of the guarantee of the right
to equality stipulated in Article 15 (1).
24 The crux of the above discussion is that the binary of merit and reservation
has now become superfluous once this Court has recognized the principle of
substantive equality as the mandate of Article 14 and as a facet of Articles 15 (1)
and 16(1). An open competitive exam may ensure formal equality where
everyone has an equal opportunity to participate. However, widespread
inequalities in the availability of and access to educational facilities will result in
the deprivation of certain classes of people who would be unable to effectively
compete in such a system. Special provisions (like reservation) enable such
disadvantaged classes to overcome the barriers they face in effectively
competing with forward classes and thus ensuring substantive equality. The
privileges that accrue to forward classes are not limited to having access to
quality schooling and access to tutorials and coaching centres to prepare for a
competitive examination but also includes their social networks and cultural
capital (communication skills, accent, books or academic accomplishments) that
they inherit from their family.
42 The cultural capital ensures that a child is trained
unconsciously by the familial environment to take up higher education or high
posts commensurate with their family‘s standing. This works to the disadvantage
of individuals who are first-generation learners and come from communities
whose traditional occupations do not result in the transmission of necessary skills
required to perform well in open examination. They have to put in surplus effort to

42 K.V Syamprasad, Merit and caste as cultural capital: Justifying affirmative action for the underprivileged in
Kerala, India, Journal for Critical Education Policy Studies, Vol 17, p.50-81 (2019).
PART D
30
compete with their peers from the forward communities.43 On the other hand,
social networks (based on community linkages) become useful when individuals
seek guidance and advise on how to prepare for examination and advance in
their career even if their immediate family does not have the necessary exposure.
Thus, a combination of family habitus, community linkages and inherited skills
work to the advantage of individuals belonging to certain classes, which is then
classified as ―merit‖ reproducing and reaffirming social hierarchies. In BK
Pavithra v. Union of India44
, a two-judge Bench of this Court, of which one of us
was a part (Justice DY Chandrachud) had observed how apparently neutral
systems of examination perpetuate social inequalities. This Court observed:
―134. It is well settled that existing inequalities in society can
lead to a seemingly ―neutral‖ system discriminating in favour
of privileged candidates. As Marc Galanter notes, three broad
kinds of resources are necessary to produce the results in
competitive exams that qualify as indicators of ―merit‖. These
are:
―… (a) economic resources (for prior education, training,
materials, freedom from work, etc.); (b) social and cultural
resources (networks of contacts, confidence, guidance and
advice, information, etc.); and (c) intrinsic ability and hard
work…‖ [ Galanter M., Competing Equalities : Law and the
Backward Classes in India, (Oxford University Press, New
Delhi 1984), cited by Deshpande S., Inclusion versus
excellence : Caste and the framing of fair access in Indian
higher education, 40 : 1 South African Review of Sociology
127-147.]
135. The first two criteria are evidently not the products of a
candidate's own efforts but rather the structural conditions
into which they are borne. By the addition of upliftment of SCs
and STs in the moral compass of merit in government
appointments and promotions, the Constitution mitigates the
risk that the lack of the first two criteria will perpetuate the
structural inequalities existing in society.‖

43 Ibid
44 (2019) 16 SCC 129
PART D
31
25 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.45 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.46 Ashwini Deshpande highlights
that there is always a degree of separation between what examinations claim to
measure and what they actually measure. He states:
―…most examinations and tests have an inevitably indexical
character – they claim to measure something more than (or
other than) what is established by the actual tasks they set.
Thus, for example, a candidate aspiring to join civil service
may take an entrance exam where she appears in papers in,
say geology, philosophy and general knowledge. On the
basis of her performance in these papers, the entrance exam
claims to predict her potential ability to be a good civil
servant. There is at best a rather indirect link between good at
writing exam answers in geology, philosophy and general
knowledge and being a good civil servant. This is the sense in
which the exam and the candidate‘s performance in it serves
as an index – an indicator – of something else namely her
potential to be a good civil servant.

45 Michael Sandel, Tyranny of Merit: What‘s become of the Common Good (Penguin Boks)
46 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
PART D
32
All examinations are more of less indexical, even those that
have a lot of ‗practical‘ components involving activities that
appear to be very close to what successful candidates will
eventually be doing professionally. All other things being
equal, indexicality tends to weaken diagnostic claims of the
examination. Because of this, the higher the stakes, the
greater the ideological energy that is spent on building up the
prestige and popular deference accorded to the exam. That is
why exams guarding the gateway to a prized profession or
status are steeped in hyperbole and are socially required (so
to speak) to be traumatic bloodbaths. Anything less would not
only undermine the status of the status that they are
guarding, it would also endanger the main social function that
such exams perform, which is to persuade the vast majority of
aspirants to consent to their exclusion.‖47
At the best, an examination can only reflect the current competence of an
individual but not the gamut of their potential, capabilities or excellence,
48 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. Thus, we need to reconceptualize the meaning of
―merit‖. 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

47 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.
48 Ibid
PART D
33
assessed in a competitive examination. Equally, fortitude and resilience required
to uplift oneself from conditions of deprivation is reflective of individual calibre.
Such a formulation of merit was emphasised by this Court in Pradeep Jain
(supra), where it observed:
―12. But let us understand what we mean when we say that
selection for admission to medical colleges must be based on
merit. What is merit which must govern the process of
selection? It undoubtedly consists of a high degree of
intelligence coupled with a keen and incisive mind, sound
knowledge of the basic subjects and infinite capacity for hard
work, but that is not enough; it also calls for a sense of social
commitment and dedication to the cause of the poor. We
agree with Krishna Iyer, J., when he says in Jagdish Saran
case [(1980) 2 SCC 768 : AIR 1980 SC 820 : (1980) 2 SCR
831] : (SCC p. 778, para 21)
―If potential for rural service or aptitude for rendering medical
attention among backward people is a criterion of merit —
and it, undoubtedly, is in a land of sickness and misery,
neglect and penury, wails and tears — then, surely, belonging
to a university catering to a deprived region is a plus point of
merit. Excellence is composite and the heart and its
sensitivity are as precious in the scale of educational values
as the head and its creativity and social medicine for the
common people is more relevant than peak performance in
freak cases.‖
Merit cannot be measured in terms of marks alone, but
human sympathies are equally important. The heart is as
much a factor as the head in assessing the social value of a
member of the medical profession. This is also an aspect
which may, to the limited extent possible, be borne in mind
while determining merit for selection of candidates for
admission to medical colleges though concededly it would not
be easy to do so, since it is a factor which is extremely
difficult to judge and not easily susceptible to evaluation.‖
26 However, after contextualising the meaning of merit, in the next paragraph
this Court reverted to equating the selection process adopted for admission to
merit. However, irrespective of the true purport of merit, this Court notes that the
selection process for admission must satisfy the test of equality. This Court
observed thus:
PART D
34
―13. We may now proceed to consider what are the
circumstances in which departure may justifiably be made
from the principle of selection based on merit. Obviously,
such departure can be justified only on equality-oriented
grounds, for whatever be the principle of selection followed
for making admissions to medical colleges, it must satisfy the
test of equality. Now the concept of 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 idle incantation but it must
become a living reality for the large masses of people. In a
hierarchical society with an indelible feudal stamp and
incurable actual inequality, it is absurd to suggest that
progressive measures to eliminate group disabilities and
promote collective equality are antagonistic to equality on the
ground that every individual is entitled to equality of
opportunity based purely on merit judged by the marks
obtained by him. We cannot countenance such a suggestion,
for to do so would make the equality clause sterile and
perpetuate existing inequalities. Equality of opportunity is not
simply a matter of legal equality. Its existence depends not
merely on the absence of disabilities but on the presence of
abilities. Where, therefore, there is inequality, in fact, legal
equality always tends to accentuate it. What the famous poet
William Blake said graphically is very true, namely, ―One law
for the Lion and the Ox is oppression‖. Those who are
unequal, in fact, cannot be treated by identical standards; that
may be equality in law but it would certainly not
be real equality. 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 disadvantaged persons or, inflicting
handicaps on those more advantageously placed, in order to
bring about real equality. Such affirmative action though
apparently discriminatory is calculated to produce equality on
a broader basis by eliminating de facto inequalities and
placing the weaker sections of the community on a footing of
equality with the stronger and more powerful sections so that
each member of the community, whatever is his birth,
occupation or social position may enjoy equal opportunity of
using to the full his natural endowments of physique, of
character and of intelligence. We may in this connection
usefully quote what Mathew, J., said in Ahmedabad St.
Xavier's College Society v. State of Gujarat [(1974) 1 SCC
717, 799 : AIR 1974 SC 1389 : (1975) 1 SCR 173] : (SCC p.
799, para 132)
―… it is obvious that ‗equality in law precludes discrimination
of any kind; whereas equality in fact may involve the
necessity of differential treatment in order to attain a result
which establishes an equilibrium between different situations‘
[ The Advisory opinion on Minority Schools in Albania, April 6,
1935 publications of the Court, series A/B No 64, p 19] .‖
We cannot, therefore, have arid equality which does not take
into account the social and economic disabilities and
inequalities from which large masses of people suffer in the
country. Equality in law must produce real equality; de jure 
PART D
35
equality must ultimately find its raison d'etre in de facto
equality. The State must, therefore, resort to compensatory
State action for the purpose of making people who are
factually unequal in their wealth, education or social
environment, equal in specified areas. The State must, to use
again the words of Krishna Iyer, J., in Jagdish Saran
case [(1980) 2 SCC 768 : AIR 1980 SC 820 : (1980) 2 SCR
831] (SCC p. 782, para 29) ―weave those special facilities into
the web of equality which, in an equitable setting, provide for
the weak and promote their levelling up so that, in the long
run, the community at large may enjoy a general measure
of real equal opportunity. . . . equality is not negated or
neglected where special provisions are geared to the larger
goal of the disabled getting over their disablement
consistently with the general good and individual merit‖. The
scheme of admission to medical colleges may, therefore,
depart from the principle of selection based on merit, where it
is necessary to do so for the purpose of bringing about real
equality of opportunity between those who are unequals.‖
27 It is important to clarify here that after the decision in NM Thomas (supra)
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 equalises inherited disadvantages
and privileges. Otherwise claims of individual merit are nothing but tools of
obscuring inheritances that underlie achievements.
28 If merit is a social good that must be protected, we must first critically
examine the content of merit. As noted above, scores in an exam are not the sole
determinant of excellence or capability. Even if for the sake of argument, it is
assumed that scores do reflect excellence, it is not the only value that is
considered as a social good. We must look at the distributive consequences of 
PART D
36
merit. Accordingly, how we assess merit should also encapsulate if it mitigates or
entrenches inequalities. As Amartya Sen argues:
―If, for example, the conceptualization of a good society
includes the absence of serious economic inequalities, then in
the characterization of instrumental goodness, including the
assessment of what counts as merit, note would have to be
taken of the propensity of putative merit to lessen—or
generate—economic inequality. In this case, the rewarding of
merit cannot be done independent of its distributive
consequences.
…..
In most versions of modern meritocracy, however, the
selected objectives tend to be almost exclusively oriented
towards aggregate achievements (without any preference
against inequality), and sometimes the objectives chosen are
even biased (often implicitly) towards the interests of more
fortunate groups (favouring the outcomes that are more
preferred by ―talented‖ and ―successful‖ sections of the
population. This can reinforce and augment the tendency
towards inequality that might be present even with an
objective function that inter alia, attaches some weight to
lower inequality levels‖
49
A similar understanding of merit was advanced by this Court in BK Pavithra
(supra), where this Court held:
―131. Once we understand ―merit as instrumental in
achieving goods that we as a society value, we see that the
equation of ―merit‖ with performance at a few narrowly
defined criteria is incomplete. A meritocratic system is one
that rewards actions that result in the outcomes that we as a
society value.‖
An oppositional paradigm of merit and reservation serves to entrench inequalities
by relegating reserved candidates to the sphere of incompetence, and
diminishing their capabilities. We have already stated that while examinations are
a necessary and convenient method to allocate educational resources, they are
not effective markers of merit. The way we understand merit should not be limited
to individual agency or ability (which in any event is not solely of our own doing)

49 Amartya Sen, ‗Merit and Justice‘ in Arrow KJ, et al (eds), Meritocracy and Economic Inequality (Princeton
University Press 2000).
PART D
37
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 we value in society. Based on the above discussion, we find it
difficult to accept the narrow definition of merit (that is, decontextualised
individual achievement). We believe such a definition hinders the realisation of
substantive equality.
29 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. Article 15 (5) reads thus:
―(5) Nothing in this article or in sub-clause (g) of clause (1) of
article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the
Scheduled Castes or the Scheduled Tribes in so far as such
special provisions relate to their admission to educational
institutions including private educational institutions, whether
aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of article 30.‖
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 (supra), this Court did not hold that reservation in
PG courses is altogether impermissible. In Dr Preeti Srivastava (supra), this
Court was not concerned with the issue of reservation in PG courses; rather it 
PART D
38
was concerned with the question whether it is permissible to prescribe a lower
minimum percentage of qualifying marks for reserved category candidates in
comparison to the general category candidates. In AIIMS Student Union v.
AIIMS50, this Court was concerned with the question of reservation based on
institutional preference in PG courses and held that limited preference to students
of the same institution can be given at the PG level. In Saurabh Chaudhri v.
Union of India51, a Constitution Bench of this Court observed that reservation in
PG courses to a reasonable extent did not violate the equality clause.52 Mr Divan
had 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 reservation should be allowed in PG. We find it 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 we cannot deem 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. In our opinion,
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

50 2002 (1) SCC 428
51 2003 (11) SCC 146
52 Ibid, paragraph 67. 
PART D
39
benefitting from reservation because OBC candidates who fall in the creamy
layer are excluded from taking the benefit of reservation. Thus, we find that there
is no prohibition in introducing reservation for socially and educationally backward
classes (or the OBCs) in PG courses.
D.2 The Court and the AIQ seats
30 In order to address the argument of the petitioners that this Court in
Pradeep Jain (supra) and the subsequent cases has held that there shall be no
reservation in the AIQ seats, it is necessary that we chronologically refer to the
development of the concept of AIQ seats by various cases.
31 In Pradeep Jain (supra), a three-Judge Bench of this Court was deciding
on the constitutional validity of reservation based on domicile and institutional
preference in medical colleges or institutions of higher learning. Referring to
State of U.P v. Pradip Tandon53 and Nookavarapu Kanakadurga Devi v.
Kakatiya Medical College54, where reservation for the people of the hills in
Uttarakhand and Telangana was held to be permissible since they were
backward regions which would fall within the ambit of socially and educationally
backward classes in Article 15(4), it was held that reservation or any other
affirmative action programme based on residence or domicile is not arbitrary and
violative of Article 14. However, it was also observed that it is desirable to admit
students to the MBBS course on an all-India basis, in furtherance of ‗merit‘,
without any classification based on residence. It was observed that however, in
view of the inequality in the society where a few areas within a State, and a few

53 (1975) 2 SCR 761
54 AIR 1972 AP 83
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40
States on comparison to others are backward, admission based on an all-India
examination will lead to inequality:
―19. […]Theoretically, of course, if admissions are given
on the basis of all-India national entrance examination,
each individual would have equal opportunity of securing
admission, but that would not take into account diverse
considerations, such as, differing level of social,
economic and educational development of different
regions, disparity in the number of seats available for
admission to the MBBS course in different States,
difficulties which may be experienced by students from
one region who might in the competition on all-India basis
get admission to the MBBS course in another region far
remote from their own and other allied factors. There can
be no doubt that the policy of ensuring admissions to the
MBBS course on all-India basis is a highly desirable
policy, based as it is on the postulate that India is one
nation and every citizen of India is entitled to have equal
opportunity for education and advancement, but it is an
ideal to be aimed at and it may not be realistically
possible, in the present circumstances, to adopt it, for it
cannot produce real equality of opportunity unless there
is complete absence of disparities and inequalities — a
situation which simply does not exist in the country
today.‖
32 In order to balance between the claims of legal and factual equality, it was
observed that even if the Union Government decides to conduct an all-India
entrance examination for admission to medical courses, a certain percentage of
seats may be reserved for candidates based on residence. Further, it was held
that wholesale reservation of 100 percent based on domicile for admission in
educational institutions is unconstitutional:
―20 […] We agree wholly with these observations made
by the learned Judge and we unreservedly condemn
wholesale reservation made by some of the State
Governments on the basis of ‗domicile‘ or residence
requirement within the State or on the basis of
institutional preference for students who have passed the
qualifying examination held by the university or the State
excluding all students not satisfying this requirement,
regardless of merit. We declare such wholesale
reservation to be unconstitutional and void as being in
violation of Article 14 of the Constitution.‖ 
PART D
41
33 This Court then determined the quantum of reservation based on
residence and institutional preference. This Court observed that reservation
based on residence in MBBS shall not exceed 70 percent of the total seats
available, after taking into account other reservations validly made. It was also
observed that the Indian Medical Council must consider revising the percentage
of reservation based on the residence criteria every three years. The remaining
30 percent seats were available for admission on an all-India basis irrespective of
the residence of the candidate:
―21. But, then to what extent can reservation based on
residence requirement within the State or on institutional
preference for students passing the qualifying
examination held by the university or the State be
regarded as constitutionally permissible? It is not possible
to provide a categorical answer to this question for, as
pointed out by the policy statement of the Government of
India, the extent of such reservation ―would depend on
several factors including opportunities for professional
education in that particular area, the extent of
competition, level of educational development of the area
and other relevant factors‖. It may be that in a State
where the level of educational development is woefully
low, there are comparatively inadequate opportunities for
training in the medical speciality and there is large scale
social and economic backwardness, there may be
justification for reservation of a higher percentage of
seats in the medical colleges in the State and such
higher percentage may not militate against ―the equality
mandate viewed in the perspective of social justice‖. So
many variables depending on social and economic facts
in the context of educational opportunities would enter
into the determination of the question as to what in the
case of any particular State, should be the limit of
reservation based on residence requirement within the
State or on institutional preference. But, in our opinion,
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. The Medical Education Review Committee
has suggested that the outer limit should not exceed 75
per cent but we are of the view that it would be fair and
just to fix the outer limit at 70 per cent. We are laying
down this outer limit of reservation in an attempt to
reconcile the apparently conflicting claims of equality and
excellence. We may make it clear that this outer limit
fixed by us will be subject to any reduction or attenuation
which may be made by the Indian Medical Council which 
PART D
42
is the statutory body of medical practitioners whose
functional obligations include setting standards for
medical education and providing for its regulation and
coordination. We are of the opinion that this outer limit
fixed by us must gradually over the years be
progressively reduced but that is a task which would have
to be performed by the Indian Medical Council. We would
direct the Indian Medical Council to consider within a
period of nine months from today whether the outer limit
of 70 per cent fixed by us needs to be reduced and if the
Indian Medical Council determines a shorter outer limit, it
will be binding on the States and the Union Territories.
We would also direct the Indian Medical Council to
subject the outer limit so fixed to reconsideration at the
end of every three years but in no event should the outer
limit exceed 70 per cent fixed by us. The result is that in
any event at least 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 allIndia entrance examination or entrance examination
to be held by the State. Of course, we need not add that
even where reservation on the basis of residence
requirement or institutional preference is made in
accordance with the directions given in this judgment,
admissions from the source or sources indicated by such
reservation shall be based only on merit, because the
object must be to select the best and most meritorious
students from within such source or sources.‖
 (emphasis supplied)
34 This Court then distinguished admission to the MBBS course (at the UG
level) and the MD course (at the PG level). It observed that at the PG level, merit
cannot be compromised since compromising the standard of medical facilities
would be detrimental to national interest. The Court referred to the submissions
of the Medical Education Review Committee according to which:
―22. […] all admissions to the post-graduate courses in
any institution should be open to candidates on an allIndia basis and there should be no restriction regarding
domicile in the State/Union territory in which the
institution is located‖.
The policy statement filed by the Government of India was as follows:
―22. […] So far as admission to the institutions of postgraduate colleges and special professional colleges is
concerned, it should be entirely on the basis of all-India
merit subject to constitutional reservations in favour of
Scheduled Castes and Scheduled Tribes.‖
PART D
43
35 Consequently, it was held that it would be desirable to not provide
reservation based on residence in PG medical courses, though there shall be a
maximum of 50 percent reservation based on institutional preference. Therefore,
a doctor who has passed the MBBS course from a certain college may be given
preference in the same college for admission to PG course. It was observed:
―22. [..] We are therefore of the view that so far as
admissions to post-graduate courses, such as MS, MD
and the like are concerned, it would be eminently
desirable not to provide for any reservation based on
residence requirement within the State or on
institutional preference. But, having regard to broader
considerations of equality of opportunity and institutional
continuity in education which has its own importance and
value, we would direct that though residence requirement
within the State shall not be a ground for reservation in
admissions to post-graduate courses, a certain
percentage of seats may in the present circumstances,
be reserved on the basis of institutional preference in
the sense that a student who has passed MBBS course
from a medical college or university, may be given
preference for admission to the post-graduate course in
the same medical college or university but such
reservation on the basis of institutional preference should
not in any event exceed 50 per cent of the total number
of open seats available for admission to the postgraduate course.‖
 (emphasis supplied)
The observations were to guide both medical and dental courses in State-run
institutions.
36 The Bench in Pradeep Jain (supra) clarified its decision in Dinesh Kumar
(I) (supra). It was observed by the Bench that the admission to the AIQ quota
seats (30 percent in UG and 50 percent in PG) shall only be through a uniform
all-India examination. The suggestion of the Union Government that the
admission to the AIQ seats in UG and PG medical courses could be made
through marks received in the individual qualifying examinations was rejected
observing:
PART D
44
―It would be wholly unjust to grant admissions to students
assessing their relative merits with reference to the marks
obtained by them, not at the same qualifying examination
where standard of judging would be reasonably uniform
but at different qualifying examinations held by different
State Government or Universities where the standard of
judging would necessarily vary and not be the same. That
would be blatantly violative of the concept of equality
enshrined in Article 14 of the Constitution.‖
Further, the Bench also clarified the demarcation of seats for the AIQ. It was
observed that 30 percent of the total number of seats were not demarcated for
AIQ. Rather, after deducting the seats filled by reservation, 30 percent of the
remaining seats are reserved for AIQ. As an example, if there are 100 seats
available, of which 30 percent of the seats are reserved for SC and ST (that is 30
seats), 30 percent of the remaining seats (that is 21 of the remaining 70 seats)
must be filled by the AIQ. It was observed:
―5. We would also like to clear up one misunderstanding
which seems to prevail with some State Governments
and universities in regard to the true import of our
Judgment dated June 22, 1984. They have
misinterpreted our Judgment to mean that 30% of
the total number of seats available for admission to
MBBS course in a medical college should be kept free
from reservation on the basis of residence requirement or
institutional preference. That is a total misreading of our
Judgment. What we have said in our Judgment is that
after providing for reservation validly made, whatever
seats remain available for non-reserved categories, 30%
of such seats at the least, should be left free for open
competition and admission to such 30% open seats
should not be based on residence requirement or
institutional preference but students from all over the
country should be able to compete for admissions to such
30% open seats. To take an example, suppose there are
100 seats in a radical college or university and 30% of
the seats are validly reserved for candidates belonging to
Scheduled Castes and Scheduled Tribes. That would
leave 70 seats available for others belonging to nonreserved categories. According to our Judgment, 30% of
70 seats, that is, 21 seats out of 70 and not 30% of the
total number of 100 seats, namely, 30 seats, must be
filled up by open competition regardless of residence
requirement or institutional preference.‖
PART D
45
37 Pursuant to the directions given by the Bench in Dinesh Kumar (I) (supra),
the Medical Council of India formulated a scheme for holding an all- India medical
entrance examination for admission to the AIQ seats in UG and PG. However,
difficulties arose in the implementation of the scheme. This Court thought it
necessary to iron out the creases and by an order dated 16 September 1985,
directed the Government of India, in the Ministry of Health to convene a meeting
of the Deans of Medical colleges, representatives of the Medical Council of India
and Dental Council of India. A revised scheme was formulated and submitted to
this Court for approval. Various State Governments raised objections to the
revised scheme before a two-Judge Bench in Dinesh Kumar (II) v. Motilal
Nehru Medical College55
. The State of Tamil Nadu submitted that since the total
percentage of reservation varies in different States, if the AIQ seats are
calculated after deducting the seats in which reservations are validly made, the
total AIQ seats in a medical college in the State would be inversely proportional
to the percentage of reservation in the State. This Court addressed this
submission and observed that it would then be open to the State Governments to
reduce the number of seats available in the AIQ by increasing the percentage of
reservation in the State. Therefore, this Court altered the formula for seat matrix
adopted in Pradeep Jain (supra) and clarified in Dinesh Kumar (I) (supra). This
Court held that for UG, 15 percent of the total seats in each medical college or
institution shall be demarcated for AIQ (as per the revised scheme of the Central
Government), without taking into account any reservation validly made. For PG, it

55 1986 (3) SCC 727
PART D
46
was held that 25 percent of the total seats would be reserved for the AIQ, without
taking into account reservation validly made. It was observed:
―5. […] There can be no doubt that if in each State, 30
per cent of the seats were to be made available for
admission on the basis of All-India Entrance Examination
after taking into account reservations validly made, the
number of seats which would be available for admission
on the basis of All-India Entrance Examination would vary
inversely with the percentage of reservations validly
made in that State. If the percentage of reservations is
high as in the State of Tamil Nadu or the State of
Karnataka, the number of seats available for admission
on the basis of All-India Entrance Examination would be
relatively less than what would be in a State where the
percentage of reservations is low. There would thus be
total inequality in the matter of making available seats for
admission on the basis of All-India Entrance Examination.
It would be open to a State Government to reduce the
number of seats available for admission on the basis of
All-India Entrance Examination by increasing the number
of reserved categories or by increasing the percentage of
reservations. We therefore agree with the Government of
India that the formula adopted by us in our main
judgment dated June 22, 1984 [Dr Pradeep Jain v. Union
of India, (1984) 3 SCC 654] for determining the number
of seats which should be made available for admission
on the basis of All-India Entrance Examination should be
changed. We would direct, in accordance with the
suggestion made in the Scheme by the Government of
India, that not less than 15 per cent of the total number of
seats in each medical college or institution, without
taking into account any reservations validly made,
shall be filled on the basis of All-India Entrance
Examination. This new formula is in our opinion fair and
just and brings about real equality of opportunity in
admissions to the MBBS/BDS course without placing the
students in one State in an advantageous or
disadvantageous position as compared to the students in
another State. The same formula must apply also in
regard to admissions to the postgraduate courses and
instead of making available for admission on all-India
basis 50 per cent of the open seats after taking into
account reservations validly made, we would direct that
not less than 25 per cent of the total number of seats
without taking into account any reservations, shall be
made available for being filled on the basis of All-India
Entrance Examination. This suggestion of the
Government of India deserves to be accepted and the
objection to it must be overruled.‖
 (emphasis supplied)
As opposed to the clarification issued in Dinesh Kumar (I) (supra), where
reservation based on residence was against the total seats available after 
PART D
47
reservation made for backward classes under Article 15, Dinesh Kumar (II)
applies reservation based on residence against the total number of seats
available without excluding the reserved seats.
38 In Rajeshwaran (supra), the respondent filed a writ petition before the
Madras High Court seeking a direction to the Union of India to provide
reservation for the SC and ST categories in the AIQ seats set aside for MBBS
and BDS courses. The Madras High Court prima facie observed that there was
no specific order by this Court not to apply reservation as under Article 15 in the
AIQ seats. It was further observed that the AIQ seats were demarcated only to
overcome reservation based on residence. The Madras High Court allowed the
writ petition directing the Central Government to provide 15 percent reservation
for SC and ST in the AIQ seats. The Union of India filed an appeal against the
order of the Madras High Court. This Court in appeal referring to the judgment in
Dinesh Kumar (II) (supra) observed that since this Court has settled the scheme,
it would not be appropriate to determine if the candidates of SC and ST
categories are entitled to reservation in the AIQ seats since: (i) each State will
have different categories of SC and ST, and the Central list would also vary
making it difficult to adjust seats; and (ii) States anyway provide reservation for
SC and ST categories in the 85 percent seats demarcated for them. It was
observed:
―7. In respect of undergraduate course, the scheme
works out like this. If a State has a total of 100 seats and
in that State 15% of the seats are reserved for Scheduled
Castes and 10% for Scheduled Tribes, the State will fill
up 15% seats for Scheduled Caste candidates and 10%
for Scheduled Tribe candidates, of the remaining 75
seats 60 seats will be filled by the State Government as
unreserved and 15 seats will be earmarked for the allIndia quota.
PART D
48
8. Inasmuch as 15% all-India quota has been earmarked
under the scheme framed by this Court and that scheme
itself provides the manner in which the same should be
worked out, we do not think, it would be appropriate to
travel outside the said provisions to find out whether a
person in the position of the petitioner would be entitled
to plead in the manner sought for because each of the
States could also provide for reservation for the
Scheduled Caste and Scheduled Tribe category in
respect of 85% of the seats available with them. If we
meddle with this quota fixed, we are likely to land in
innumerable and insurmountable difficulties. Each State
will have different categories of Scheduled Castes and
Scheduled Tribes and the Central Government may have
a different category and hence adjustment of seats would
become difficult. The direction fixing 15% quota for allIndia basis takes note of reservations and hence the High
Court need not have made any further directions.‖
39 A Constitution Bench of this Court in Saurabh Chaudri (supra), decided
on the constitutional validity of reservation based on domicile and institutional
preference in admission to PG courses in Government-run medical colleges.
This Court held that there was no reason to depart from the ratio laid down in
Pradeep Jain (supra) that reservation based on institutional preference and
residence in PG courses is constitutionally valid. The ratio of Pradeep Jain
(supra) was referred to and the Court observed:
― 70. We, therefore, do not find any reason to depart from
the ratio laid down by this Court in Dr Pradeep Jain. The
logical corollary of our finding is that reservation by way
of institutional preference must be held to be not
offending Article 14 of the Constitution of India.‖
The Constitution Bench also increased the total percent of AIQ seats from 25
percent (as held in Dinesh (II) (supra)) to 50 percent of the seats reasoning that
the situation has improved to a great extent and that the country has produced
numerous PG doctors with the passage of time. 
PART D
49
40 In Buddhi Prakash Sharma v. Union of India56, the writ petitioners
challenged the communication issued by the Directorate General of Health
Services57 on 7 December 2004 directing the States to provide information on the
total number of PG medical seats under the 50 percent AIQ seats after excluding
the seats reserved for SC and ST categories. By an order dated 21 February
2005, this Court directed the States to provide the total number of seats in PG
medical courses, without any exclusion. This Court observed that the DGHS was
not permitted to change the basis of the seat distribution by identifying the AIQ
seats after applying reservation for the SC and ST categories. This Court
observed that the total seats in AIQ would be 50 percent of the total number of
available seats, without any exclusion. It was observed:
―3. […] It is not in dispute that till 2004-2005 when allIndia quota of seats was 25%, the number of
postgraduate seats was worked out on the basis of total
seats without any exclusion. It is because of the letter
dated 7-12-2004 requiring the information about 50% of
all-India quota after excluding the reserved seats that this
mess has been created. None permitted DGHS to
change the basis this year. The result of
communication is that in many States the total number of
postgraduate seats has gone down than what it was
when the all-India percentage was 25% instead of it
being almost double since the direction of this Court was
that from this academic year it would be 50%.
4. From the material placed before us, it is evident that
some of the States have not furnished the requisite
information to DGHS. We direct that the total number
of postgraduate seats on all-India basis would be
50% of the total number of seats without any
exclusion and the calculation of seats would be done
on the same basis which was adopted when all-India
quota was 25%. The Chief Secretaries of States/Union
Territories, who have not supplied the requisite
information to DGHS on this basis, are directed to supply
the same latest by 5.00 p.m. on 1-3-2005 and file a
compliance affidavit in this Court. Failure to supply the
information would be seriously viewed as a violation of
this Court's direction by the Chief Secretaries concerned.
The counselling will commence on the dates already

56 (2005) 13 SCC 61
57 ―DGHS‖
PART D
50
announced as we have no doubt that entire information
about availability of the seats would be furnished by all
concerned to DGHS.‖
 (emphasis supplied)
41 In Jayakumar (supra), an appeal was filed before this Court against the
judgment of the Madras High Court in a Public Interest Litigation58 seeking
reservation for SC and ST candidates in the 15 percent AIQ seats in the UG
medical course. The Madras HC disposed of the PIL observing that reservation
was a constitutional mandate and that the Government could implement
reservation in the AIQ seats in the future. This Court allowed the appeal in terms
of the decision in Rajeshwaran (supra) where it was held that there shall be no
reservation for the AIQ seats. It observed:
―6. In our considered opinion, the question has been
directly considered in the decision of this Court in R.
Rajeshwaran, referred to supra, and it has been indicated
as to how incongruous it would be, if the provisions of
reservation be made applicable to the seats meant for
being filled up on the basis of all-India entrance
examination. Following the judgment of this Court in R.
Rajeshwaran as well as in Dr. Dinesh Kumar we hold that
the High Court was wholly in error in observing that the
requirement of reservation should also apply to the seats
to be filled up on the basis of all-India entrance
examination.‖
42 In Abhay Nath (supra) the Union of India sought clarification of the order
passed in Buddhi Prakash Sharma (supra) wherein it was held that the 50
percent seats for AIQ seats shall exclude reservation. A three-judge Bench
reviewed the order and held that there may be reservation for the SC and ST
students in the AIQ. The order of this Court was as follows:
―1. This Court in Pradeep Jain (Dr.) v. Union of
India [(1984) 3 SCC 654] directed that out of the
postgraduate seats to be filled up by the various colleges
in India, 50% of the seats shall be admitted on the basis

58 “PIL”
PART D
51
of All-India Entrance Examination. It was directed that out
of the total number of seats, 50% of the open seats shall
be filled up by All-India Entrance Examination.
2. Thereafter in Dinesh Kumar (Dr.) v. Motilal Nehru
Medical College [(1985) 3 SCC 22] , it was explained:
(SCC p. 28, para 5)
―5. … That is a total misreading of our judgment.
What we have said in our judgment is that after providing
for reservation validly made, whatever seats remain
available for non-reserved categories, 30% of such seats
at the least, should be left free for open competition and
admission to such 30% open seats should not be based
on residence requirement or institutional preference but
students from all over the country should be able to
compete for admissions to such 30% open seats. To take
an example, suppose there are 100 seats in a medical
college or university and 30% of the seats are validly
reserved for candidates belonging to Scheduled Castes
and Scheduled Tribes. That would leave 70 seats
available for others belonging to non-reserved categories.
According to our judgment, 30% of 70% seats, that is, 21
seats out of 70 and not 30% of the total number of 100
seats, namely, 30 seats, must be filled up by open
competition regardless of residence requirement or
institutional preference.‖
3. And in Dinesh Kumar (Dr.) (II) v. Motilal Nehru
Medical College [(1986) 3 SCC 727] , it was clarified:
(SCC p. 733, para 5)
―5. … that not less than 25 per cent of the total
number of seats without taking into account any
reservations, shall be made available for being filled on
the basis of All-India Entrance Examination. This
suggestion of the Government of India deserves to be
accepted and the objection to it must be overruled.‖
4. In Saurabh Chaudri v. Union of India [(2003) 11
SCC 146] the percentage of seats to All-India Entrance
Examination was increased to 50%.
5. Another writ petition was filed in this Court
in Buddhi Prakash Sharma v. Union of India [(2005) 13
SCC 61] . In this writ petition an order was passed by this
Court on 28-2-2005 [(2005) 13 SCC 61] wherein it was
stated that the total number of postgraduate seats on allIndia basis would be worked out on the basis of 50% of
the total number of seats without any exclusion. The
order indicated that out of 50% that are allocated are to
be admitted by All-India Entrance Examination and it was
made clear that there shall not be any seats excluded on
reservation.
6. The Additional Solicitor General pointed out that in
the all-India quota of 50% seats, if 22.5% are reserved for
SC/ST students, it would be difficult for the State to give
the entire percentage to reservation out of the 50% seats
left for them to be filled up. It is equally difficult for DGHS
to have the entire 22.5% reservation out of the 50% of
the seats allotted to be admitted in the All-India Entrance
Examination. Therefore, it is suggested that the Union of 
PART D
52
India has decided to provide 22.5% reservation for SC/ST
candidates in all-India quota from the academic year
2007-2008 onwards.
7. The Union of India seeks clarification of the order
passed in Buddhi Prakash Sharma v. Union of
India [(2005) 13 SCC 61] passed on 28-2-2005, to the
effect that 50% seats for all-India quota shall exclude the
reservation. We review that order and make it clear
that the 50% of the seats to be filled up by All-India
Entrance Examination shall include the reservation to
be provided for SC/ST students. To that extent the
order passed on 28-2-2005 [(2005) 13 SCC 61] is
clarified.
 (emphasis supplied)
43 In Gulshan Prakash v. State of Haryana59, a writ petition was filed
seeking to quash the prospectus issued by Maharishi Dayanand University,
Rohtak, Haryana for the academic session 2007-2008 to the extent that it did not
provide any reservation of seats for SC and ST candidates. One of the
contentions raised by the petitioners was that this Court in Abhay Nath (supra)
had directed that reservation for SC and ST candidates be provided in PG
medical courses. However, the three-Judge Bench in Gulshan Prakash (supra)
clarified that the directions in Abhay Nath (supra) would be applicable only to
AIQ seats and would have no bearing on admissions in the State quota for the
PG course. It was further clarified that if the State of Haryana has decided to not
provide reservation in PG medical courses for seats in the State Quota, this Court
cannot direct the State to provide such reservation. It was observed:
―29. Inasmuch as the Government of Haryana has not
prescribed any reservation for the postgraduate courses,
neither the University nor any other authority can be
blamed for approving and publishing the prospectus which
does not contain reservation for postgraduate courses. The
clarificatory order of this Court in Abhay Nath [(2009) 17
SCC 705] is applicable for the institutes managed/run by
the Central Government and unless the State Government
takes any decision for granting reservation in MD/MS/PG
diploma and MDS courses, it cannot be made applicable.

59 (2010) 1 SCC 477
PART D
53
As the State Government is competent to make the
reservation to a particular class or category, until it is
decided by the State, as being a policy matter, there cannot
be any direction to provide reservation at the PG level. The
State of Haryana has explained that reservation in
undergraduate medical courses is being provided strictly as
per their policy. The postgraduate degree/diploma in
medical education is governed by the Medical Council.
Even the Medical Council of India has not followed strict
adherence to the rule of reservation policy in admission for
SC/ST category at the postgraduate level.‖
44 Having traced the evolution of the AIQ in UG and PG medical and dental
courses, we answer the following questions: (i) whether this Court in Pradeep
Jain (supra) 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.
45 This Court in Pradeep Jain (supra) was deciding on the constitutional
validity of reservation based on domicile/residence. Having held that residencebased reservation is constitutionally valid, the next question that this Court was
tasked with was adjudicating the quantum of residence-based reservation that
could be permitted. Referring to the decision of this Court in Jagdish Saran v.
Union of India60, 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

60 1980 AIR 820
PART D
54
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 Staterun 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. As noted
in Section D.1 of this judgement, 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. Identifying the issue before this
Court, Justice PN Bhagwati writing for a three-judge Bench formulated the
following question:
―1. […] The question is, whether, consistently with the
constitutional values, admissions to a medical college or
any other institution of higher learning situate in a State
can be confined to those who have their ―domicile‖ within
the State or who are resident within the State for a
specified number of years or can any reservation in
admissions be made for them so as to give them
precedence over those who do not possess ―domicile‖ or 
PART D
55
residential qualification within the State, irrespective of
merit.”
 (emphasis supplied)
46 While discussing the constitutional validity of domicile-reservation, it was
observed that selection of candidates for admission based on the all-India open
examination would further 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 observation in paragraph 21 of the judgment that
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 
PART D
56
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. The observations
of the Bench extracted below also aid the interpretation that we have arrived at:
―10. The philosophy and pragmatism of universal
excellence through equality of opportunity for education
and advancement across the nation is part of our founding
faith and constitutional creed. The effort must, therefore,
always be to select the best and most meritorious students
for admission to technical institutions and medical colleges
by providing equal opportunity to all citizens in the country
and no citizen can legitimately, without serious detriment to
the unity and integrity of the nation, be regarded as an
outsider in our constitutional set-up. Moreover, it would be
against national interest to admit in medical colleges or
other institutions giving instruction in specialities, less
meritorious students when more meritorious students are
available, simply because the former are permanent
residents or residents for a certain number of years in the
State while the latter are not, though both categories are
citizens of India. Exclusion of more meritorious students on
the ground that they are not resident within the State would
be likely to promote substandard candidates and bring
about fall in medical competence, injurious in the long run
to the very region. ―It is no blessing to inflict quacks and
medical midgets on people by wholesale sacrifice of talent
at the threshold. Nor can the very 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.‖ The primary consideration in selection of
candidates for admission to the medical colleges must,
therefore, be merit. The object of any rules which may be
made for regulating admissions to the medical colleges
must be to secure the best and most meritorious students.‖
47 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 all-India entrance examination for
admissions to the AIQ seats. The suggestion that admission to the AIQ could be
made based on the marks obtained in the qualifying examination held by different
States or/and Universities was rejected on the ground that the standard of
assessment would not be uniform. It is thus evident that the intention of this 
PART D
57
Court in Pradeep Jain (supra) 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.
48 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 (supra) on the calculation of seat matrix was clarified in Dinesh
Kumar (I) (supra). 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. The graphical representation of the demarcation is as
under:
 Reserved category Remaining seats (open category)
(Figure 1)
(Figure 1)
49 Therefore, according to the clarification in Dinesh Kumar(I) (supra) on the
demarcation of seats, the first bifurcation should be between reserved and nonreserved 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
SC/ST AIQ State Quota
PART D
58
Kumar (II) (supra). 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. The revised seat matrix is graphically represented below:
 State Quota AIQ
(Figure 2)
50 When the judgment in Dinesh Kumar (II) (supra) 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 (supra) and Rajeshwaran (supra), the
petitioners had sought a direction from this Court for providing reservation in the
AIQ seats. In Rajeshwaran (supra), 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 (supra) that it had taken the decision to reserve seats in the AIQ, it
was clarified that there was no impediment against the implementation of such
reservation.
SC ST OBC General Category
PART D
59
51 In Buddhi Prakash Sharma (supra), 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) (supra) that the
AIQ seats would be determined without excluding reservations (as depicted by
figure 1) to mean that there would be no reservation in the AIQ. Therefore, since,
Pradeep Jain (supra) did not preclude the AIQ seats from reservation, a threeJudge Bench in Abhay Nath (supra) clarified that the 50 percent AIQ seats in PG
medical and dental seats would be inclusive of reservation for SC and ST
categories.
D.3 The Executive’s power to introduce reservation in AIQ seats
52 We next address the argument of the petitioners that the Union
Government should have filed an application before this Court before notifying
reservations in the AIQ since the AIQ scheme is a creation of this Court. We are
unable to agree to this argument. The Union Government in Abhay Nath (supra)
had made a submission to this Court 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. This Court in Abhay Nath (supra) clarified that
reservations are permissible in the AIQ seats. Therefore, the order in Abhay
Nath (supra) was only clarificatory in view of the earlier observations in Buddhi
Prakash Sharma (supra). Interpreting the order to mean that the Union of India
sought the permission of this Court before providing reservation would amount to
aiding an interpretation that would foster judicial overreach. Therefore, the 
PART D
60
argument that the Union Government should have approached this Court before
notifying the reservations for the OBC and EWS categories in the AIQ seats is
erroneous.
53 In Abhay Nath (supra), 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 India61 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 the Centre. It would also lead to the anomaly highlighted in
Dinesh Kumar (II) (supra) 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

61 (2008) 6 SCC 1
PART D
61
SC, ST and OBC lists are not uniform across States. Thus, it is the Union
Government‘s prerogative to introduce reservation in AIQ seats.
D.4 Changing the Rules of the Game
54 The 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. It is the contention of the petitioners that the rules of
the examination could have only been changed before the last date for
registration. The petitioners argue that the candidates registered for the exam
having a particular seat matrix in mind and that the change in the seat matrix
after registration would be arbitrary. However, the Union Government has argued
that Clause 11 in the Information Bulletin released by the National Board of
Examinations during the registration process provided that information regarding
seat matrix would be separately released by the counselling authority. Clause 11
reads as follows:
―11.1. Reservation of PG seats shall be as per the norms
of the Government of India and respective State
Governments as may be applicable.
11.2. A separate handbook informing details of the
counselling process and applicable reservation shall be
released by the designated counselling authority for
NEET-PG 2021.‖
It is evident from a reading of clause 11.2 that applicants are informed of the seat
matrix (that is, the applicable reservation) only when a separate handbook is
released by the counselling authority. The candidates would possess no
knowledge of the seat matrix at the time of registration. 
PART D
62
55 In Manjusree v. State of AP62, the selection of candidates to ten vacant
posts of District and Session Judges (Grade II) in the Andhra Pradesh State
Higher Judicial Service was the subject-matter of the appeal. The selection and
appointments to the post of District & Session Judges (Grade II) are governed by
the Andhra Pradesh State Higher Judicial Service Rules 1958. The rules
prescribe that one-third of the posts are to be filled by direct recruitment.
However, the method of recruitment is not prescribed in the Rules. Therefore, the
High Court determines the method of selection when the vacancies are notified.
An advertisement was issued on 28 May 2004 calling for applications. The
Administrative Committee by its resolution dated 30 November 2004 decided to
conduct a written examination for seventy-five marks and an interview for twentyfive marks, and prescribed minimum category marks for the written examination.
The exam was held on 30 January 2005. The results were declared on 24
February 2005. The merit list was prepared by aggregating the marks obtained in
the written examination out of 100 and the interview for 25 marks. However, the
Full Court did not agree with the selection list and another committee of judges
was constituted to prepare the list. The committee was of the view that the select
list changed the proportion of marks of the written exam to the interview from 3:1
to 4:1 since the written exam marks (out of 100) were not converted to 75 marks.
The sub-committee also directed that there must be minimum marks for the
interview component, in the same cut-off percentage as applied to the written test
component. Another selection list was prepared based on the revised selection
criteria. Candidates whose names were featured in the first select list but were

62 (2008) 3 SCC 512
PART D
63
absent in the second list, challenged the second selection list. A three-judge
Bench of this Court held that the scaling down of marks in the written exam in
proportion to the maximum of 75 marks was valid since it was in consonance with
the resolution dated 30 November 2004. However, it was observed that
introducing minimum marks in the interview component ‗after the entire selection
process (consisting of written examination and interview) was completed, would
amount to changing the rules of the game after the game was played which is
clearly impermissible.’ The facts of the case in Manjusree (supra) differ from the
factual matrix before us since the impugned notice notifying reservation in the
AIQ was introduced even before the examination was held. Further, unlike the
case before us, there was in that case, a change in the selection criteria.
56 In Maharashtra State Road Transport Corporation v. Rajendra
Bhimrao Mandve63, the selection to the post of drivers and conductors was in
question. The writ petitioners satisfied the qualifications and possessed the
requisite experience. A total of 12.5 percent marks was initially allotted to the
personal interview component. However, a change in the criteria for selection
was introduced after the driving test was conducted. This Court then held the new
criteria was invalid since it proposed to change the rules of the game after the
game had begun. In Umrao Singh v. Punjabi University64, this Court held that
the selection norms for selection to the posts of lecturers could not have been
relaxed after the last date for making the application and after the process for
selection had started. In Tej Prakash Pathak v. Rajasthan High Court65, the

63 (2011) 10 SCC 51
64 (2005) 13 SCC 365
65 (2013) 4 SCC 540
PART D
64
Rajasthan High Court had called applications for the post of ‗translators‘.
According to the Rajasthan High Court Staff Service Rules 2002, 100 marks was
prescribed for the written exam and 50 marks for the personal interview. After the
exam was conducted, 75 percent marks was prescribed as the qualifying marks
in the written examination. Justice Chelameshwar, writing for a three-judge
Bench observed that changing the ‗rules of the game‘ midstream or after the
game has been played is an ―aspect of retrospective law-making power‖. This
Court held that the principle applied in Manjusree (supra), without further scrutiny
would not further public justice and efficient administration. This Court referred
the question to a larger Bench in the following terms66:
―15. No doubt it is a salutary principle not to permit the
State or its instrumentalities to tinker with the ―rules of the
game‖ insofar as the prescription of eligibility criteria is
concerned as was done in C. Channabasavaih v. State of
Mysore [AIR 1965 SC 1293], etc. in order to avoid
manipulation of the recruitment process and its results.
Whether such a principle should be applied in the context
of the ―rules of the game‖ stipulating the procedure for
selection more particularly when the change sought is to
impose a more rigorous scrutiny for selection requires an
authoritative pronouncement of a larger Bench of this
Court. We, therefore, order that the matter be placed
before the Hon'ble Chief Justice of India for appropriate
orders in this regard.‖
57 In Dr Prerit Sharma v. Dr Bilu67, the information bulletin for NEET-SS
2020 was issued on 3 August 2020. The examination was held on 15 September
2020, and the results were declared on 25 September 2020. Clause 5.16 of the
information bulletin that was released when the registration process had begun
stipulated that there would be no reservation in the SS courses. The medical

66 The Bench noticed the judgment in State of Haryana v, Subash Chander Marwaha, (1974) 3 SCC 220 where
the Supreme Court upheld the decision of the State to not appoint all candidates who had secured the minimum
percentage of marks.
67 Civil Appeal No. 3840 of 2020
PART D
65
counselling committee issued the counselling scheme for AIQ for NEET-SS
course 2020-21 in which it was mentioned that there would be no reservation for
the SS courses by referring to the judgments of this Court in Dr Preeti
Srivastava (supra) and Dr Sandeep Sadashivrao v. Union of India68. The
counselling for the SS course was postponed. The State of Tamil Nadu issued
GOMS No. 462 dated 7 November 2020 stipulating that 50 percent of the SS
seats in Government medical colleges in the State of Tamil Nadu would be
reserved for in-service candidates. This Court observed that when the process for
admissions to the SS courses had began, it was notified through the information
bulletin that there would be no reservation in the SS courses. Therefore, it was
held that reservation for in-service doctors shall not be permitted for the current
academic year.
58 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. Thus, it would not amount to altering the rules of
the game for the following reasons:
(i) The judgments cited by the counsel for the petitioner on ‗changing the
rules of the game midway‘ referred to changes in the selection criteria
or the procedure for selection. Those cases are distinguishable from
the case before us since the impugned notice did not alter the selection
criteria;

68 (2016) 2 SCC 328
PART E
66
(ii) The judgments referred to applied the principle of not changing the
rules of the game mid-way after the selection process (of exams and
interviews) was completed; and
(iii) 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 (supra). 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.
E. Conclusion
59 In view of the discussion above we hold 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
PART E
67
potential of an individual which are also shaped 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(supra) that the AIQ seats
must be filled by merit, must be read limited to merit vis-à-vis residence 
PART E
68
reservation. This Court in Pradeep Jain (supra) did not hold that
reservation in AIQ seats is impermissible;
(vi) The Union of India filed an application before this Court in Abhay Nath
(supra) 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) (supra) that the total seats
demarcated for AIQ shall be determined without excluding reservation as
was earlier directed by Pradeep Jain (supra) and clarified in Dinesh
Kumar (I). However, this Court in Buddhi Prakash Sharma (supra) had
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 (supra) was only clarificatory in view of the observations in Buddhi
Prakash Sharma (supra); 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 
PART E
69
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.
60 The challenge to the constitutional validity of OBC reservation in AIQ seats
introduced through the notice dated 29 July 2021 is rejected in view of the above
discussion.
61 Pending application(s), if any, relating to the issue of OBC reservation
implemented through the notice dated 29 July 2021 stand disposed of.
 …….…………………………...............................J.
[Dr Dhananjaya Y Chandrachud]
…….…………………………...............................J.
 [A S Bopanna]
New Delhi;
January 20, 2022
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (C) No. 961 of 2021
Neil Aurelio Nunes and Ors. … Petitioners
Versus
Union of India and Ors. … Respondents
With
Writ Petition (C) No 967 of 2021
With
Writ Petition (C) No 1002 of 2021
With
Writ Petition (C) No 1021 of 2021
And With
Writ Petition (C) No 1105 of 2021
2
O R D E R
This order has been divided into the following sections to facilitate analysis:
A. Genesis of the Controversy..........................................................................3
B. Issues raised by this Court...........................................................................6
C. The Initial Stand of the Union Government.................................................8
D. Major Sinho Commission Report...............................................................11
E. Union Government’s Decision to Revisit the EWS Criteria.....................13
F. The Findings of the Pandey Committee ....................................................14
G. Submissions of Counsel.............................................................................22
H. Analysis........................................................................................................33
PART A
3
A. Genesis of the Controversy
1 These writ petitions challenge the reservation for Other Backward Classes1
and Economically Weaker Section2 in the All India Quota3 seats in the National
Eligibility cum Entrance Test (Post Graduate) examination4
. The criteria for the
determination of the EWS for the ten percent reservation in pursuance of The
Constitution (One Hundred and Third Amendment) Act 2019 has come under
challenge. The permissibility of reservations in the AIQ seats has been
addressed in the judgment dated 20 January 2022. This order will only deal with
the challenge to the criteria for determination of the EWS category.
2 An information brochure was released on 23 February 2021 scheduling the
NEET-PG 2021 examination on 18 April 2021. The registration process
commenced on 23 February 2021 and the last date for registration was 15 April
2021. However, in view of the second wave of the COVID -19 pandemic, the
Ministry of Health and Family Welfare5 issued a notice dated 15 April 2021
postponing the examination until further notice. By an official statement issued on
3 May 2021, the NEET-PG 2021 examination was postponed by another four
months. The National Board of Examinations in Medical Sciences, New Delhi
issued a notice on 13 April 2021 rescheduling the NEET-PG 2021 examination to
11 September 2021. The Directorate General of Health Services, MoHFW issued
a notice on 29 July 2021 to implement 27 percent OBC reservation (non-creamy
 1 “OBC” 2 “EWS” 3 “AIQ” 4 “NEET-PG” 5 “MoHFW"
PART A
4
Layer) and 10 percent EWS reservation in the 15 percent undergraduate6 and 50
percent PG AIQ seats in the current academic session of 2021-22. The notice
stated thus:
“NOTICE
Urgent Attention Candidates of NEET-UG and NEET-PG:
It has been decided by the Government of India to implement
27% OBC reservation (Non-creamy later) and 10% EWS
reservation in the 15% AIQ UG seats and the 50% All India
Quota seats (MBBS/BDS and MD/MS/MDS) (contributed by
the State/UTs). This reservation will take effect from the
current Academic session 2021-22.
Consequently, the overall reservation in 15% UG and 50%
PG All India Quota seats would be as follows:
SC-15%
ST-7.5%
OBC (Non-creamy layer) as per the Central OBC list-27%
EWS- as per the Central Government Norms-10%
PwD-5% Horizontal Reservation as per NMC Norms”
3 The Constitution was amended by the Constitution (One Hundred and Third
Amendment) Act 2019, including Articles 15(6) and 16(6). Article 15(6) states that
special provisions (including reservation) shall be made for the advancement of
the EWS category in classes “other than the classes mentioned in clauses (4)
and (5)”. An explanation to Article 15 was also included by the constitutional
amendment which reads as follows:
“Explanation- For the purposes of this article and article 16,
“economically weaker sections” shall be such as may be
notified by the State from time to time on the basis of family
income and other indicators of economic disadvantage”
 6 “UG”
PART A
5
4 The Department of Personnel, Public Grievances & Pensions, Department
of Personnel & Training, Government of India on 17 January 20197 in pursuance
of the explanation to Article 15(6) issued an executive order (O.M No.
36039/1/2019) defining the criteria for identification of EWS. The relevant extract
of the OM is as under:
“3. EXEMPTION FROM RESERVATION
3.1 “Scientific and Technical” posts which satisfy all the
following conditions can be exempted from the purview of the
reservation orders by the Ministries/Departments:
(i) The posts should be in grades above the lowest grade in
Group A of the service concerned.
(ii) They should be classified as ‘scientific or technical” in
terms of Cabinet Secretariat (OM No. 85/11/CF-61(1) dated
28.12.1961), according to which scientific and technical posts
for which qualifications in the natural sciences or exact
sciences or applied sciences or in technology are prescribed
and the incumbents of which have to use that knowledge in
the discharge of their duties.
(iii) The posts should be ‘for conducting research’ or ‘for
organising, guiding and directing research’.
3.2 Orders of the Minister concerned should be obtained
before exempting any posts satisfying the above condition
from the purview of the scheme of reservation.
4.CRITERIA FOR INCOME & ASSETS
4.1 Persons who are not covered under the scheme of
reservation for SCs, STs and OBCs and whose family has
gross annual income below Rs 8 lakh (Rupees eight lakh
only) are to be identified as EWSs for benefit of reservation.
Income shall also include income from all sources i.e. salary,
agriculture, business, profession, etc. for the financial year
prior to the year of application. Also persons whose family
owns or possesses any of the following assets shall be
excluded from being identified as EWS, irrespective of the
family income:-
i. 5 acres of agricultural land and above;
ii. Residential at of 1000 sq ft. and above;
iii. Residential plot of 100 sq. yards and above in notified
municipalities;
iv. Residential, plot of 200 sq. yards and above in areas other
than the notified municipalities.
4.2. The property held by a "Family" in different locations or
different places/cities would be clubbed while applying the
land or property holding test to determine EWS status.
4.3 The term "Family" for this purpose will include the person
who seeks benefit of reservation, his/her parents and siblings
below the age of 18 years as also his/her spouse and children
below the age of 18 years.”
 7 “OM”
PART B
6
5 The petitioners are doctors who appeared for the NEET-PG 2021
examination. The petitioners filed a writ petition on 24 August 2021 challenging
the validity of the notice issued on 29 July 2021 providing reservation for the OBC
category and EWS category in NEET-PG examination and sought quashing of
the notice. One of the arguments raised by the petitioners was that the criteria
under the OM for the determination of the EWS category is arbitrary.
B. Issues raised by this Court
6 Notice was issued on 6 September 2021. The NEET-PG results were
declared on 28 September 2021. The arguments were heard in part by the Bench
on 7 October 2021. The Bench questioned the basis of using Rs 8 lakhs as the
income limit for identifying EWS. Two weeks were granted to the Union
Government to file an affidavit clarifying the basis for adopting the Rs 8 lakhs
income criteria.
7 When the petitions were called for hearing on 21 October 2021, the Union
Government had not filed an affidavit clarifying the basis of the Rs 8 lakhs income
limit for determining the EWS. Mr KM Nataraj, learned Additional Solicitor
General informed the Bench that he would be in a position to file an affidavit in
two days. The Bench formulated specific questions on the Rs 8 lakhs income limit
and required disclosure from the Union Government. The order dated 21 October
2021 stated thus:
“2. Mr K M Nataraj, the learned Additional Solicitor General
states that he has received oral instructions and would be in a
position to file the affidavit within a period of two days. At the
same time, during the course of the hearing, we have
formulated certain issues in regard to the criteria adopted for
identification of the EWS category. We propose to formulate 
PART B
7
them in this order so that the Union government can bring
clarity to the issues by filing its affidavit. The specific issues
on which a disclosure shall be made in the affidavit are as
follows:
(i) Whether the Union government undertook an exercise before
arriving at the criteria for the determination of the EWS
category;
(ii) If the answer to (i) above is in the affirmative, whether the
criteria are based on the report submitted by Major General
Sinho (2010). If the criteria are based on Major General
Sinho’s report, a copy of the report should be placed on the
record of these proceedings;
(iii) Whether the EWS category is over inclusive;
(iv) The income limit in the criteria for the determination of the
creamy layer of the OBC category and the EWS category is
the same, namely, Rs 8 lakhs. While the creamy layer in the
OBC category is identified for excluding a section of the
community that has ‘economically progressed’ to such an
extent that the social backwardness of the community
diminishes, the EWS category is identified to include the
segment which is ‘poorer’ when compared to the rest of the
community. Therefore (a) the income criterion in respect of
the OBC category is aimed at exclusion from a class while in
the case of the EWS category, it is aimed at inclusion; and (b)
the OBC category is socially and educationally backward and,
therefore, has additional impediments to overcome as
compared to those belonging to the general category. In
these circumstances, would it be arbitrary to provide the
same income limit both for the OBC and EWS categories;
(v) Whether the differences in the GDP/per capita income of
different States have been accounted for while arriving at Rs
8 lakhs income limit;
(vi) Whether the differences in the purchasing power between
rural and urban areas have been accounted for while fixing
the income limit; and
(vii) According to the notification of Union government (OM No.
36039/1/2019), families which have an income lower than Rs
8 lakhs would be excluded from the EWS category if the
family holds assets of (a) five acres of agricultural land and
above; (b) a residential plot of 100 square yards and above in
notified municipalities and 200 square yards and above in
areas other than notified municipalities; and (c) a residential
flat of 1000 square feet and above. In this context, a
disclosure may be made on the following aspects:
(i) On what basis has the asset exception been arrived at and
was any exercise undertaken for that purpose; WP(C)
961/2021;
(ii) (ii) Whether municipalities as required under the exception
have been notified;
PART C
8
(iii) The reason why the residential flat criterion does not
differentiate between metropolitan and nonmetropolitan
areas.
3. We grant liberty to the Union government to place its affidavit
on record making a full disclosure on the record on the issues
raised above since the Court must be apprised of the nature
of the exercise undertaken while fixing the income criterion for
the EWS category. In this context, it would be significant to
note that the explanation to Article 15(6) which was
introduced as a result of the 103rd Constitutional Amendment
in 2019, specifically enunciates that for the purposes of Article
15(6) and for Article 16(6), economically weaker sections
shall be such as may be notified by the State from time to
time on the basis of family income and other indicators of
economic disadvantage. It is in this context that it would be
necessary for the Union government to disclose before the
Court the nature of the exercise which was undertaken to
categorize the economically weaker section as mandated by
the provisions of the explanation to Article 15. We may clarify
at this stage that the Court is not embarking upon any issue
of policy while requiring such a disclosure to be made before
it, but will determine as to whether the constitutional
requirements have been duly complied with. 4 Counter
affidavit, if any, be filed on or before 26 October 2021. 5 List
the Writ Petitions on 28 October 2021 as the first item on the
Board.”
C. The Initial Stand of the Union Government
8 On 25 October 2021, the Union Government deferred counselling due to the
pendency of the petitions. The Union Government filed an affidavit justifying the
EWS criteria on 26 October 2021, making the following submissions:
(i) Exercise was undertaken by the Union Government to determine the
EWS category: The criteria for the determination of the EWS category
was arrived at after due deliberation within the Ministry of Social
Justice and Empowerment and all the concerned stakeholders. Even
before the OM dated 17 January 2019 was issued, the Union
Government had set up the Major Sinho Commission in 2005 for 
PART C
9
identification of the EWS and determining the constitutional
permissibility of reservation for the class;
(ii) The criteria for the determination of the EWS category does not suffer
from over-inclusiveness: Any cut-off criteria is likely to have some
degree of assumption. The fixation of Rs 8 Lakhs is based on criteria
for the determination of the creamy layer of the OBCs. The Major
General Sinho Commission had recognised that the income limit for
the determination of the creamy layer of the OBCs could be used for
the identification of the EWS category. The OM dated 17 January 2019
provides further checks in the form of the assets exemption so that
only the needy receive the benefit of reservation under Articles 15(5)
and 16(6);
(iii) The same income limit criteria used for determining both the EWS and
the creamy layer of OBCs is not arbitrary: The exercise conducted to
determine the creamy layer for the purpose of the OBC reservation
would be equally applicable for the determination of the EWS category
since the premise is that persons having substantial economic standing
may not receive the benefits of the reservation. The courts can only
determine if there is ‘some material’ for arriving at the income criteria.
The courts cannot review the criteria;
(iv) Urban- rural and State divide: Though there will be differences in the
purchasing power and GDP of different areas (Urban/Rural; amongst
States, amongst different districts in a State), it is sufficient if the
criteria is based on ‘some material’. There is no need to prescribe 
PART C
10
different income limits for rural and urban families since EWS is
intended mostly for students in higher education and employment.
Since there is constant migration from rural to urban areas for
education and employment, a separate criteria will not be needed. It is
sufficient if the criteria is based on broad probabilities since it is
impossible to achieve mathematical precision;
(v) Asset Exception: The assets exception is provided to ensure that the
reservation is provided only to the needy. ‘Notified municipalities’ refers
to all municipalities legally constituted; and
(vi) Other Arguments: The total seats have been increased by 56 percent
in MBBS and by 80 percent in PG in the last six years. Therefore, the
total number of seats available for the general category has increased.
The issue of whether reservation for the EWS would violate the law laid
down in Indra Sawhney v. Union of India8 since it exceeds the 50
percent reservation cap is the subject matter of reference to a fivejudge Bench in Janhit Abhiyan v. Union of India9
, which is
adjudicating upon the constitutional validity of the Constitution (One
Hundred and Third Constitution Amendment) Act 2019.
 8 AIR 1993 SC 477
9 WP (C) 55/2019
PART D
11
D. Major Sinho Commission Report
9 At this stage, a reference must be made to the Major Sinho Commission
report since the Union Government has strongly relied on the observations in the
report on using the income limit for identifying the creamy layer of the OBC for
determining the EWS. The Major Sinho Commission was constituted for
determining the EWS among the unreserved categories. Chapter III of the
Commission’s report noted that the welfare measures (excluding reservation
which would require other considerations) may be extended to the EWS
category.
10 Chapter IV of the report discusses the parameters to determine the
EWS category. The relevant parameters for the identification of EWS were
enumerated as follows:
(a) Monthly Per Capita Expenditure;
(b) Below Poverty Line11 Category;
(c) Occupational Pattern and Backwardness;
(d) Educational Backwardness;
(e) Status of Health and Nutrition; and
(f) Housing Conditions
10 Analysing the above parameters across categories, the Commission arrived
at the following conclusions:
 10 Internal page 20 of the Report. The Report noted, “On the basis of the above, this Commission gathers the
Constitutional and legal understanding that ‘Backward Classes’ cannot be identified for providing reservation in
employment and admission in educational institutions on the basis of economic criteria and hence ‘Economically
Backward Classes’ (EBCs) can be identified by the State for extending welfare measures only and in order to
provide any quantum of reservation to them (EBCs) two essential aspects need to be considered:
(i) Social, educational and economic backwardness, and
(ii) Until a different direction is given by the Supreme Court or a Constitutional Amendment is made,
the 50 per cent limit for reservation makes a binding on the State for any further increase in the
quantum of reservation to any class.” 11 “BPL”
PART D
12
(i) A part of the general category formed a class of poor along with poor of
other social groups. Poor households resulted from landlessness, high
women illiteracy, marginal farm holdings and part-time/temporary work
in the unrecognized sector. Such people have to cope with kutcha
housing, poor hygiene and inability to spend on basics;
(ii) Socio-economic condition of the general category is better than other
social groups but segments within the general category are equivalent
to or worse off than the OBCs; and
(iii) The general category has a deeper creamy layer than OBCs. The
lower end of the spectrum of the general category and the OBCs are
comparable.
The Major Sinho Commission made the following recommendations for the
identification of the EWS:
(i) Socio-economic backwardness prevails at a community level. However,
economic backwardness prevails at a family level. Thus, the family
should be the unit for identification of EWS; and
(ii) The BPL families must be identified as EWS. This view was also
expressed by various States. While the creamy layer criteria could be
used for the identification of EWS, the creamy layer was a concept
exclusive to a class that suffers both social and educational
backwardness. The economic needs of EWS differs and hence just one
criterion of BPL or setting creamy layer of OBC as the upper limit would
not be effective to ensure intended benefits to EWS. The percentage of
BPL among the general category was less compared to the backward
PART E
13
class, however the poor of the general category (though above BPL)
still suffered from malnutrition, poor health, and low standard of living.
Therefore, families with income less than the current non-taxable limit
of Rs. 1,60,000 (as may be revised from time to time) and the BPL
families should be identified as EWS.
E. Union Government’s Decision to Revisit the EWS Criteria
11 On 28 October 2021, the learned Solicitor General sought an adjournment,
requesting that the petitions be heard after the Diwali vacation. Thereafter, on 25
November 2021, the learned Solicitor General stated that the Union Government
had taken a considered decision to revisit the criteria for determining EWS in
accordance with the provisions of the explanation to Article 15 of the Constitution
inserted by the Constitution (One Hundred and Third Constitution Amendment)
Act 2019. The Solicitor General submitted that a period of four weeks would be
required to conduct this exercise and the counselling would remain suspended
during such period. Acceding to the Union Government’s request to revisit the
criteria, this Court posted the petitions for hearing on 6 January 2022.
12 The Union Government by its order dated 30 November 2021 constituted a
Committee12 to review the criteria for determination of the EWS category. The
terms of reference of the committee stated thus:
“a) To re-visit the criterion given in OM dated 17.01.2019 in
determining EWS category keeping in view the observations
of the Hon’ble Supreme Court in their order dated
21.10.2021,
b) To examine various approaches so far followed in the
country for determining economically weaker sections, and
 12 “Pandey Committee”
PART F
14
c) Recommend criteria that may be adopted for identifying
EWS category in future.”
The Pandey Committee submitted its report to the Government on 31 December
2021.
13 Thereafter, the Union Government filed an affidavit before this Court
submitting that it has accepted the recommendations of the Pandey Committee
including its recommendation that the new criteria for identifying EWS must be
applied prospectively and not in the current admission year of 2021-2022.
F. The Findings of the Pandey Committee
14 It is important to advert to the findings of the Pandey Committee on the
issues raised by this Court by its order dated 21 October 2021. The Pandey
Committee’s short responses to the issues raised by this Court are given in the
table below13:
Q. Based on prevailing conditions and economic disparity in the country, what should
be the principles for determining criteria that may be used for identifying EWS?
A feasible criterion for defining EWS can be based on income (family income).
Q. If income criteria is to be used then what would be the threshold for income for
identifying EWS
A threshold of Rs 8 lakhs of annual family income, in the current situation, seems reasonable
for determining EWS.
Q. Is there any justification for adopting a uniform income-based threshold across the
country for the identification of EWS - especially in light of the disparity in purchasing
power across the country?
The desirability of a uniform income-based threshold has been upheld by the Supreme Court,
and it can be adopted across the country as a matter of economic and social policy, drawing
authority from Article 254 and Article 73, read with Entry 20 of the Concurrent List.
 13 Internal page number 29 of the Report
PART F
15
Q. Is the current limit of annual family income of Rs 8 lakhs over-inclusive?
The current limit of annual family income of Rs 8 lakhs does not seem to be over-inclusive as
the available data on actual outcomes does not indicate overinclusion. It should be noted that
income includes salary and agriculture as well.
Q. Should there be other criteria to determine economic weakness, in addition to
income? Should residential or other assets be considered for EWS?
Q. In case, inclusion of asset in the criteria for EWS is justified, is the current asset limit
adequate or does it require a review based on factors including differences in valuation
due to location of the assets?
It will be prudent to have only income criteria for EWS. Residential asset criteria may be
omitted altogether. However, the families holding more than 5 acres of land or more may be
excluded from EWS.
15 The Pandey Committee observed that income limit is the most appropriate
criteria to identify EWS as opposed to a multiple-criteria approach because the
latter requires complex and large-scale surveys. The periodic surveys may not be
able to capture the evolving nature of the EWS category. Further, over-reliance
on consumption patterns would result in beneficiaries hiding or avoiding the
consumption of goods and services. The report stated thus:
“3.3.1.24. The problem with a multiple-criteria approach is
that it requires complex, large-scale surveys. While it may be
possible to periodically do such detailed socio-economic
surveys, it should be noted that our idea of EWS keeps
evolving. For example, using the refrigerator or a phone
connection as one of the parameters may have been valid for
exclusion in 2011 but may not be true today. Moreover, if we
start to rely too heavily on certain consumption patterns to
identify beneficiaries, we will end up with people gaming the
system by hiding or avoiding certain goods and services.”
16 The Pandey Committee sought to justify the use of Rs 8 lakhs income-cut
off for determining the EWS category by placing reliance on the Major Sinho
Commission report, which it submitted, proposed using the concept of “creamy
layer” in OBCs to determine the criteria for identifying EWS among the general 
PART F
16
category. Further, it noted that despite having a similar threshold of Rs 8 lakhs,
the criteria applied for the determination of creamy layer in OBCs and EWS is
different. The report contains the following table enumerating the differences
between the two criteria14:
Table III: Creamy Lawyer among OBCs vs EWS criteria
Parameters Creamy Layer among OBCs EWS
Annual Family Income and
Eligibility in years
Annual Income above Rs 8
lakh for 3 consecutive years
will be excluded
Annual income should be
less than Rs 8 lakhs in the
preceding financial year will
be included
Income from salaries or
agricultural land
Excluded Included
Persons working as artists or
engaged in hereditary
occupations
Excluded Included
Definition of Family Candidate, parents, minor
children
Candidate, parents, minor
siblings, spouse, minor
children
The Pandey Committee also submitted that if adequate investments are made
and deductions are taken advantage of, the effective income tax exemption limit
is Rs 7 to 8 lakhs. The relevant portion of the report is reproduced below:
“3.3.1.39 The current annual income tax exemption limit is Rs
2,50,000. However, in February 2019 the Government
through Finance Act amended the Income Tax Act to provide
relief to the low-income individuals wherein anyone having
taxable income up to five lakhs of rupees per annum was
exempt from paying income tax. Whatever tax that was
calculated for the income exceeding Rs.2,50,000 was given
back to the taxpayer by way of rebate which effectively meant
that individuals having taxable income up to 5 lakhs of rupees
had their entire income tax free. As a result, even persons
having gross income up to Rs. 6.50 lakhs are not be required
to pay any income tax if they make investments in provident
funds, specified savings, insurance etc. In fact, with additional
deductions such as interest on a home loan up to Rs 2 lakh,
interest on education loans, National Pension Scheme
contributions, medical insurance, medical expenditure on
 14 Internal page number 44 of the Report
PART F
17
senior citizens etc, persons having even higher income do not
have to pay any tax. In addition, salaried persons get an
additional standard deduction of Rs 50,000. Income from
capital gain on listed shares/units up to Rs 100,000 too is
exempt from tax. Effectively, a person earning up to around
Rs 8 lakhs are not be required to pay any income tax from the
financial year 2019-2020 onwards, provided he makes some
specified savings etc. Further, Income from agriculture too is
not included for the purpose of income tax in this case.
….
3.3.1.42 It should be noted that the Rs 8 lakh annual gross
annual income limit for inclusion into EWS is
-is for the entire family as against the individual income tax
exemption limit of Rs 5 lakh
-is without any deduction’s available various provisions of
income tax such as 80C, standard deductions etc.
-includes agricultural income. The individual income tax
exemption limit does not include agricultural income.
3.3.1.43 As per current income tax norms, the effective
income tax on individuals is zero for those with incomes up to
INR 5 lakhs. As discussed in the foregoing paras after taking
advantage of the various provisions for savings, insurance
etc., the tax-payer may not need to pay any tax up to an
annual income of INR 7-8 lakhs. Thus, the EWS cut-off, if
applied to just an individual, is in the ballpark of income tax
requirements for zero tax liability. Once applied to include
family income and farm income, however, it becomes much
more demanding.”
In the Pandey Committee’s opinion, a lower-income limit would increase the risk
of excluding deserving candidates. However, to avoid undeserving candidates
from taking the benefit of reservation, a set of simple asset criteria should be
introduced to weed out such candidates instead of lowering the income limit.15
17 The Pandey Committee submitted that uniform criteria should be imposed
for identifying EWS because prescribing different income limits based on the
differences in purchasing power in urban and rural areas would create
complications, especially on account of migration. It will also lead to
 15 Para 3.3.1.34 at internal page 44 of the Report.
PART F
18
administrative difficulty in implementation. The Pandey Committee concluded
thus:
“3.3.2.5 In the present context of establishing a uniform
income criterion across the country for determining EWS, this
judgment draws focus on the need to have a uniform criterion
for determining EWS across the country, as it relates to the
practical implementation of such criterion. It was argued
before the Supreme Court in Jaishree Laxman Rao Patil
(Supra) that the establishment of such standards by the
states may lead to vote-bank politics and that a national body
that would be charged with establishing such uniform criteria
would be able to objectively, “without being pressurised by
the dust and din of electoral politics” be able to provide
benefits.
3.3.2.6 Therefore, the Committee is of the view having
different income limits for different geographies or areas is
neither feasible nor desirable.”
18 The Pandey Committee submitted that the Rs 8 lakhs cut-off is not overinclusive because data shows that the majority of the candidates fall within the
lower income brackets of below Rs 5 lakhs. The Pandey Committee relied on the
data on household income distribution for qualified EWS candidates in UPSC,
NEET-UG 2020 and JEE (2021) examinations. The Pandey Committee’s
conclusion is reproduced below:
“3.3.3.6 After analysing the data of the three different
entrance examinations. The committee is of the view that
there is no evidence that the current cut-off of Rs 8 lakhs is
leading to a major problem of the inclusion of undeserving
candidates. Nonetheless, the committee observed that the
distribution of the deserving candidates will have a long “tail”
for various factors such as income volatility, size of family, the
inclusion of agricultural income, high cost of living in certain
locations and so on. Therefore, despite the fact that the bulk
of the qualifying candidates is below Rs 5 lakhs, a somewhat
higher threshold is needed which ensures that deserving
beneficiaries in the tail of the distribution are not excluded.
3.3.3.7 Thus, the committee is of opinion that the income
criteria of INR 8 lakh per annum performs well based on
evidence and should be kept unchanged for identifying EWS.”
PART F
19
19 The Pandey Committee was of the view that there should be no interference
with the existing criteria relating to exclusion of families having agricultural land of
5 acres or more from the category of EWS even if their gross income is less than
Rs 8 lakhs. The Pandey Committee observed that it is the marginal and small
farmers who have farm holdings up to 5 acres whose monthly income is in the
range of Rs 10,000. The Pandey Committee observed thus:
“3.3.4.17 The situation is quite vulnerable for the marginal
(less <1 hectare) and small farmers (1-2 hectares of land) as
their income is way behind that of the medium and large
farmers. A finer categorisation of farmers as per the size of
land holdings reveals that the marginal and small farmers’
average monthly earning are barely Rs 9,099, and Rs 11,000
respectively.
3.3.4.18 Therefore, considering that the marginal and small
farmers (having landholding up to 5 acres of land) are able to
have monthly income only in the range of around Rs 10,000,
the committee is of the view, there is no need to interfere in
the criterion of 5 acres of agricultural land.”
20 The Pandey Committee opined that the residential asset criteria for
identifying EWS must be removed. The Pandey Committee noted that there are
practical difficulties in identifying a common denominator that can be used in rural
and urban areas for determining EWS. The Pandey Committee submitted that it
could be difficult to apportion the share of the nuclear family in the residential
house of a joint family. Further, in rural and semi-rural areas, house plots are also
used for storing grains, agricultural equipment and sheltering cattle. It will be
difficult to demarcate the criteria of the residential house. In urban areas, various
measurements are used like carpet area, built-up area and super-built-up area. It
will place an onerous burden on a candidate to get these areas measured and
calculated for obtaining certificates from the designated authority. The Pandey 
PART F
20
Committee also observed that criteria of residential house or plot area does not
encapsulate the value of the land which may differ according to geographic
location. The Pandey Committee concluded thus:
“3.3.4.31…. The Committee is therefore of the view that a
similar approach could be adopted for EWS wherein
residential asset exclusion criterion may be omitted for
simplicity, ease, and convenience. In short, an asset criterion
on residential plot size or flat floor area should not be
imposed unless there is clear evidence that the system is
being widely gamed in practice. Even if there was evidence of
misuse, the Committee is of the opinion that it may be easier
to mine the wealth of digital information to establish real
income rather than get caught in a complex debate about
ownership and valuation.”
21 Thus, effectively the only revision that the Pandey Committee has
recommended is the exclusion of the residential asset criteria in determining the
category of EWS. The Pandey Committee in its report observed that applying the
new criteria would disturb the ongoing admissions and lead to delay. It was
further stated that since the present EWS criteria was being applied since 2019,
no serious prejudice would be caused if it is implemented in the present year as
well. The relevant observations of the Pandey Committee are reproduced below:
“4.19….
…..
(iv) The Committee deliberated upon the vexed question as to
from which year the criteria suggested in his Report should be
used, adopted and made applicable. The Committee found
that the existing criteria [the criteria applicable prior to this
Report] is in use since 2019. The question of desirability of
the existing criteria arose and a possibility of its being
revisited arose only recently in Neil Aurelio Nunes and ors.
versus Union of India and ors. and a batch of petitions
towards the later part of 2021. By the time this Hon'ble Court
started examining the said question and the Central
Government decided to revisit the criteria by appointing this
Committee, the process with respect to some appointments /
admissions have taken place ormust have been at an
irreversible and advanced stage. The existing system which is
going on since 2019, if disturbed at the end or fag-end of the
PART F
21
process would create more complications than expected both
for the beneficiaries as well as for the authorities.
In case of admissions to educational institutions, sudden
adoption of a new criteria inevitably and necessarily would
delay the process by several months which would have an
inevitable cascading effect on all future admissions and
educational activities / teaching / examination which are time
bound under various statutory / judicial time prescriptions.
Under these circumstances, it is completely unadvisable and
impractical to apply the new criteria (which are being
recommended in this report) and change the goal post in the
midst of the on-going processes resulting in inevitable delay
and avoidable complications. When the existing system is
ongoing since 2019, no serious prejudice would be caused if
it continues for this year as well. Changing the criteria midway
is also bound to result in spate of litigations in various courts
across the country by the people/persons whose eligibility
would change suddenly.
The Committee, therefore, after analysing the pros and cons
on this issue and after giving serious consideration,
recommends that the existing and ongoing criteria in every
on-going process where EWS reservation is available, be
continued and the criteria recommended in this Report may
be made applicable from next advertisement / admission
cycle.”
22 The petitions were listed on 5 January 2022 after a request for urgent listing
was made by the Solicitor General. It was urged on behalf of the Union
Government that the OBC and EWS reservation (following the old criteria) must
be allowed to be implemented in the present admission year. This has been
contested by the petitioners.
23 By an order dated 7 January 2022, this Court upheld the constitutional
validity of the OBC reservation in AIQ medical and dental UG and PG seats. The
constitutionality of the criteria used for the identification of the EWS category is
yet to be decided. However, in the interim, this Court directed that the counselling
in NEET-PG 2021 and NEET-UG 2021 be conducted by giving effect to the
reservation provided by the notice dated 29 July 2021, including the 27 percent
PART G
22
OBC reservation and 10 percent EWS reservation. The reasons for allowing
EWS reservation for the current academic year 2021-2022 are provided in this
order.
G. Submissions of Counsel
24 Mr. Arvind Datar, learned Senior Counsel appearing for the petitioners
argued that the criteria fixed for determining the EWS category in the OM is prima
facie arbitrary. In support of this argument, he made the following submissions:
(i) The Constitution was amended by the Constitution (One Hundred and
Third Amendment) Act 2019 on 14 January 2019 to provide 10 percent
reservation for the EWS of the unreserved category. The OM laid down
the criteria for determining the EWS category within three days of
introducing the amendment. The Union Government did not undertake
any study before notifying the criteria on 17 January 2019. It evident
from the report submitted by the Pandey committee that no exercise
was undertaken before notifying the criteria in 2019;
(ii) The report of the Pandey committee only justifies the criteria but does
not submit the exercise that was undertaken for arriving at the criteria;
(iii) The Rs 8 lakhs income limit prescribed for determining the EWS
category is arbitrary because:
(a) The income limit used to determine the creamy layer category of
OBC/BC/MBC is used to identify EWS. The OBC category suffer from
both social and economic backwardness unlike the unreserved
category. The criteria for exclusion cannot be used as the criteria for
inclusion;
PART G
23
(b) The prescription of the Rs 8 lakhs income limit would amount to treating
unequal’s equally. For example, the per capita income of States differs.
Goa has a per capita income of Rs 4 lakhs, while Bihar has a per capita
income of Rs 40,000. The Minister of State of the Ministry of Statistics
and Programme implementation, while answering a Parliamentary
question acknowledged the disparity in per capita income among
States and the rural and urban populations. The 8 lakhs income criteria
is higher than the per capital income of any of the States;
(c) The Rs 8 lakhs cap is on the higher end and does not cover the section
of those who are economically weaker. The affluent of the general
category would take away all the reserved seats available. Thus, the Rs
8 lakhs limit is over-inclusive;
(d) The Major Sinho Commission was constituted for the purpose of
determining the feasibility of providing reservation for the EWS and the
criteria for determining EWS category. The Commission submitted its
report in 2010 after extensive study and consultation with all States.
After undertaking such an extensive study, it recommended that the
criteria for the determination of EWS shall be families that fall under the
BPL category and the families exempted from payment of income tax
(that is Rs. 1.6 lakhs at the relevant time);
(e) The common income limit of Rs 8 lakhs does not include factors such
as income volatility, size of family, and high cost of living in certain
locations;
PART G
24
(f) The current non-taxable limit is Rs. 2.5 lakhs. A person who saves Rs.
2-3 lakh a year to avail benefits under Section 80C of the Income Tax
Act 1961 cannot be termed as ‘economically weak’;
(g) According to the Seventh Pay Commission, a class IV employee
receives a salary between Rs 18,000 to Rs, 30,0000. Therefore, the Rs
8 lakh limit is over-inclusive; and
(h) The Rs 8 lakhs limit is a top down approach and not a bottom up
approach. The Pandey Committee has erroneously interpreted the
recommendations of the Major Sinho Commission.
(iv) The Pandey Committee report does not have any reasons to reject the
recommendation of the Major Sinho commission. The report does not
sufficiently address the issues raised by this Court by the order dated
21 October 2021 because:
(a) The report acknowledges the absence of reliable data;
(b) The report was submitted within three weeks without undertaking any
study, unlike the Major Sinho Commission report which was submitted
after four years of extensive research by placing reliance on data,
survey reports, and feedbacks;
(c) The Pandey Committee did not consult with the State
Governments/Union Territories while framing the report. Without any
consultation, it is recommended that there should not be different
income limits for different States or areas based on purchasing power;
(d) The report stated that the family income of Rs 8 lakh does not seem to
be over-inclusive as the ‘available data’ on actual outcomes does not 
PART G
25
indicate over-inclusion. However, no data was submitted on ‘actual
outcomes’ to prove the claim;
(e) The justification in the report for not considering the varying costs of
living in metropolitan and non-metropolitan cities, rural and urban areas
for determining the EWS criteria was that it would create complications.
Such a justification is not reasonable;
(f) The 5 acres agricultural land asset exemption is arbitrary since no
exemption is made between wet and dry lands; and
(g) The Pandey committee has determined the criteria by ignoring the
relevant factors and taking into account irrelevant factors.
(v) The explanation to Article 15 states that for the purposes of Article 15
and Article 16, ‘economically weaker sections’ shall be notified by the
State from time to time on the basis of family income and other
indicators of economic disadvantage. Both the Union and the State
Governments have the power to determine the EWS. However, the
Pandey committee did not even consult the States before arriving at the
criteria. The Kerala Government constituted a commission for
determining the criteria for identifying the EWS. The Commission
chaired by Mr. K Sasidharan Nair submitted its report on 29 November
2019 recommending that Rs 4 lakhs gross family income must be used
to identify the EWS category in Kerala;
(vi) The open category seats are filled by the members of the general
category and the reserved categories. According to the Rajan
committee report submitted in Tamil Nadu, only 2.3 percent of the open 
PART G
26
category seats are occupied by the forward community. By improperly
identifying the EWS, the injustice suffered by the forward community is
being compounded;
(vii) This Court in Indra Sawhney (supra) held that a class identified for the
purposes of reservation under Articles 15 and 16 must have common
traits. The EWS class identified by the impugned criteria does not
possess common traits; and
(viii) In the case of Shantistar Builders v. Narayan K. Totame16, a threejudge Bench of this Court held that the ‘economic basis’ or the ‘means
test’ maybe adopted as a working guideline for determining ‘weaker
sections of the society’. In this case, a family having an annual income
not exceeding Rs 18,000 was considered to be belonging to the weaker
sections of the society.
25 Mr. Anand Grover, senior counsel appearing for the intervenors made the
following submissions challenging the criteria for the determination of EWS:
(i) The explanation to Article 15 states that EWS must be determined on
the basis of ‘family income and other indicators of economic
disadvantage’. Therefore, the criteria used for the identification of the
class must encompass both the income and other indicators. However,
the criteria devised does not use any other indicator for economic
disadvantage;
(ii) The EWS category is identified by the income limit, and other
indicators are used only to exempt a class falling within the income
 16 (1990) 1 SCC 520
PART G
27
criteria. Indicators such as housing, literacy, education, and health
have been ignored while identifying the EWS category;
(iii) The daily minimum wage in India is Rs 176 per day, which is not even
half of what is recommended by the Parliamentary Committee. Around
76 percent of India’s population does not receive a minimum wage.
Therefore, the criteria only identifies the creamy layer and not the
‘poorest of the poor’;
(iv) The income criteria must be the based on the income tax exemption
slab that is Rs. 2.5 lakhs. Considering that the cut off of Rs. 2.5 lakhs
was fixed in 2004, the amount may be increased by 10-12 percent; and
(v) The Pandey committee report states that ‘despite the fact that the bulk
of the qualifying candidates are below Rs 5 lakhs, a somewhat higher
threshold is needed which ensures that deserving beneficiaries
affected by various factors such as income volatility, size of family, high
cost of living in certain locations are not excluded.’ No other
justification is given to not prescribe Rs. 5 lakhs as the income limit.
26 On behalf of the Union of India, the Solicitor General, Mr Tushar Mehta,
and the Additional Solicitor General, Mr KM Natraj, made the following
submissions:
(i) The rules of the game were not changed after the game had begun
since the reservation through the impugned notice issued on 29 July
2021 was introduced much prior to the date on which the exams were
conducted and before the commencement of the counselling process.
The NEET PG examination schedule is as under:
PART G
28
(a) Release of Information Brochure: 23 February 2021
(b) Commencement of Registration Process: 23 February 2021
(c) Last date of Registration: 15 March 2021
(d) Scheduled examination date: 18 April 2021
(e) Postponement for four months on: 03 May 2021
(f) New date of examinations announced on: 13 July 2021
(g) New date for examination: 11 September 2021
Clause 11.1 of the information bulletin issued on 23 February 2021 states
that reservation of PG seats shall be as per the norms of the Central
Government and the respective State Governments. Clause 11.2 states
that a separate handbook providing information on the counselling process
and applicable reservation shall be released by the designated counselling
authority for NEET-PG 2021. Therefore, the process begins only with the
commencement of the counselling process and not when the registration
closes;
(ii) The reservation in AIQ seats in terms of the notice dated 29 July 2021 has
been already implemented in MDS admissions for the current academic
year 2021-2022 to comply with the order of this court dated 11 August
2021 in Debraj Samanta & Ors. v. Medical Counselling Committee17;
(iii) The EWS reservation is already in place and is now being extended to AIQ
seats for UG/PG admission in medical and dental courses. The EWS
reservation has already been implemented for IITs and Central educational
institutions, amongst others. The reservation is in compliance with The
 17 WP (C) No. 680 of 2021
PART G
29
Constitution (One Hundred and Third Amendment) Act 2019 and is in
terms of the prescribed parameters of eligibility criteria, which, inter alia,
includes gross income;
(iv) The reservation for EWS was introduced on broader considerations of
equality of opportunity and concerns of social justice. Around 550 EWS
students for MBBS and 1000 EWS students for PG medical courses would
benefit each year; from this reservation
(v) In the last six years, MBBS seats has been increased by 56 percent from
54, 348 seats in 2014 to 84, 649 seats in 2020 and the number of PG
seats has been increased by 80 percent from 30,191 seats in 2014 to 54,
275 seats in 2020. In the same duration, 179 medical colleges have been
established and now there are 558 medical colleges in the country. Thus,
the reservation for the EWS category will not be at the expense of other
categories;
(vi) The challenge to the constitutional validity of the Constitution (One
Hundred and Third Amendment) Act 2019 has been referred to a
Constitution Bench by the order dated 5 August 2020 in Janhit Abhiyan v.
Union of India & Ors.
18. While referring the challenge to the Constitution
Bench, this Court did not stay the operation of the constitutional
amendment. Thus, the implementation of the constitutional amendment
through the notice dated 29 July 2021 cannot be questioned in the present
writ petitions;
 18 WP (C) No. 55 of 2019
PART G
30
(vii) The criteria for reservation for admission in the AIQ seats is a question of
policy and is within the powers of Union Government. The criteria depends
on an overall assessment and survey of requirements of various categories
of persons to whom it is essential to provide facilities of higher education.
The contours of judicial review have been defined by this Court in BK
Pavithra v. Union of India19, which is the “Barium Chemicals Test”. Thus,
unless the criteria for EWS is so grossly unfair that no person with common
sense would arrive at it, there is no reason for judicial interference;
(viii) It is always possible to come up with an alternative criteria. However, the
judiciary is only required to assess whether the Government took into
account only relevant considerations, showed application of mind and did
not adopt an absurd view that no person with common sense would arrive
at;
(ix) The Union Government had undertaken an exercise for the determination
of the EWS criteria as stipulated in the OM, which was arrived at after due
deliberation within the Ministry of Social Justice and Empowerment and all
concerned stakeholders. Even before the OM came into existence, the
Government had set up the Major General Sinho Commission in 2005. The
Major Sinho Commission in its report dated July 2010 arrived at various
conclusions including that the creamy layer threshold among the OBCs
can serve as the basis to decide the upper limit for identifying the
economically backward category among the unreserved category. Even
then the criteria that applies to the OBC creamy layer is significantly
 19 (2019) 16 SCC 129.
PART G
31
different from the criteria applicable for identifying the EWS. The criteria for
the latter is more stringent;
(x) The Pandey Committee has merely tweaked the Major Sinho Commission
report. It has also considered relevant material including the Socio
Economic and Caste Census 2011. Based on the material, it opined that
economic weakness is a complex issue and no single indicator can be
used to capture the level of poverty. The Pandey Committee observed that
a multi-pronged criteria requires complex and large-scale surveys. Since
EWS is a dynamic concept and keeps evolving, it is suitable to have an
income criteria. A criteria based on consumption patterns would lead to
people avoiding certain goods and services for the purpose of securing the
reservation benefit;
(xi) The Major Sinho Commission report recommended using the income tax
exemption limit. While the current income tax exemption limit is Rs 2.5
lakhs, the income of Rs 8 lakhs effectively falls within the income tax
exemption limit since a tax rebate is provided for income upto Rs 5 lakhs
and with sufficient savings and investments, such a tax rebate can be
obtained. Further, income tax exemption limit applies to individuals but the
8 lakhs income limit applies to families. If three members of a family
annually earn Rs 3 lakhs, they could fall outside the bracket of EWS;
(xii) If a lower income limit for identifying EWS is adopted, it will be
underinclusive. For being eligible for EWS reservation, the beneficiary
household income has to be less than Rs 8 lakhs in the preceding financial 
PART G
32
year. Merely one year of windfall income earned by a household can push
them out of the EWS category;
(xiii) It is important to note that the state is not identifying the poor but rather
those belonging to the economically weaker category. Such people may be
above the poverty line;
(xiv) It will be difficult to adopt different income limits for urban and rural areas
because of internal migration and it would lead to implementation issues. A
uniform criteria can be used to provide reservation;
(xv) It will be discriminatory if EWS reservation is not implemented in medical
and dental colleges, when it is being implemented in other educational
institutions; and
(xvi) While the Pandey Committee has highlighted that the certification process
for determining the size of the residential plot is a cumbersome process
and has recommended doing away with the residential criteria for
exemption from the EWS category, it has also recommended that the new
criteria should apply prospectively. The EWS candidates would have
prepared their respective certificates to satisfy the EWS criteria which are
to be submitted once the counselling process begins for this admission
cycle. Thus, no hardship would be caused to them for applying this year.
On the other hand, if the new criteria is implemented from this year, it
would disturb the entire admission process since candidates who qualify
under the new criteria would have to be given additional time to satisfy it
and participate in the counselling process.
PART H
33
H. Analysis
27 It has been brought to our notice that the counselling for the MDS courses
has already begun, where the reservation for EWS in AIQ has been provided. On
behalf of the petitioners, Mr Shyam Divan has urged that a completely separate
exercise is conducted for MDS courses. He has submitted that a separate
notification is issued for admission to MDS courses and a different schedule for
examination and counselling is followed. Be that as it may, the medical and
dental courses have been treated on the same footing with respect to the
creation of the AIQ seats. The decision of this Court in Pradeep Jain v. Union of
India20 which led to the inception of AIQ seats in State-run medical and dental
colleges specifically clarified that the observations and directions made with
regard to MBBS and MD/MS courses would equally apply to BDS and MDS
courses.21 The notification dated 29 July 2021 introduced reservation for the OBC
and EWS categories for AIQ seats in both medical and dental courses. Thus,
there has been parity between medical and dental courses with regard to the
implementation of the AIQ and the reservation policy governing seat distribution.
Mr Divan has also submitted that a separate challenge22 has been mounted to
the notification dated 29 July 2021 by doctors possessing a Bachelor’s degree in
Dental Surgery, which is being heard with the current batch of petitions. This
argument, in fact, supports the conclusion that while the reservation in both the
medical and dental courses has been challenged, any interim stay on the
implementation of reservation for the former in view of the pending counselling
 20 1984 AIR 1420 21 Paragraph 23. 22 WP (C) No. 1105 of 2021
PART H
34
process, would creat a position of disparity between the two streams which have
always been treated alike. Therefore, a stay on reservation for this academic year
for medical courses would lead to differential treatment being meted out to dental
candidates who are similarly placed.
28 On behalf of the petitioners, it has been urged that the rules of the game
cannot be changed midway and hence, the notification dated 29 July 2021 is
liable to be set aside because it was issued after the registration for the
examination was closed. We have dealt with this argument in detail in the
judgement delivered on 20 January 2022 in the current batch of petitions on the
validity of OBC reservation in AIQ seats. The information bulletin dated 23
February 2021 issued for the purpose of conducting NEET examination
specifically mentioned that the counselling authority would issue a separate
handbook relating to details of counselling process and applicable reservation.
Thus, during the registration process which commenced on 23 February 2021
and ended on 15 March 2021, the candidates knew that the details relating to the
seat matrix would only be available during the counselling process. The
notification dated 29 July 2021 was issued much before the exams were
conducted and the counselling process was to begin. It cannot be said that the
rules for the game were set when the registrations closed on 15 March 2021 as
has been urged on behalf of the petitioners. 
PART H
35
29 In the judgement pronounced on 20 January 2022 on the validity of OBC
reservation in AIQ seats, we have dealt with the challenge to the power of the
Union Government to implement reservation in AIQ seats. The Union of India in
view of Article 15 (5) and Article 15(6) of the Constitution has the power to
provide reservation in AIQ seats since these seats have been surrendered to the
Centre.
30 The argument of the petitioners on the validity of EWS reservation was not
limited to the permissibility of reservation in the AIQ seats. Rather, the petitioners
challenged the very criteria for the determination of the EWS, which would not
only require us to hear the matter at length but would also entail us to hear all
interested parties. However, in view of the delay in the counselling process due to
the pendency of this petition, we deem it necessary to allow the counselling
session tobegin with the existing criteria for theidentification of the EWS category.
Judicial propriety would not permit us 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 that
the rules are prima facie arbitrary.23 However, at this stage, without hearing all
the interested parties at length on arguments such as (i) extent of judicial review
of materials relied on for providing reservation under Article 15; (ii) the power of
the States to determine EWS in view of the explanation to Article 15 and in view
of an alternative criteria proposed by the committee formed by the Government of
Kerala; and (iii) the meaning of EWS - the identification of the poor or the poorest,
 23 Heart of Millions v. Union of India, 2014 (14) SCC 496
PART H
36
it would be impermissible for us to form a prima facie opinion on the alleged
arbitrariness of the criteria. These arguments are only indicative of the wide
range of arguments that have been raised before us, which would require proper
consideration as it has wide ranging constitutional and societal implications on
equality and the law.
31 Additionally, any judicial intervention which would have changed the stated
reservation policy for this academic year 2021-2022 would have delayed the
admission process. The notification introducing reservation for OBC and EWS
was issued on 29 July 2021. Thereafter, a notice dated 6 August 2021 was
issued to allow candidates to change their category and EWS status. The window
for editing one’s status was between 16 August 2021 and 20 August 2021. The
exam was conducted on 11 September 2021. The candidates who qualify for the
EWS category would have prepared the necessary documentation to satisfy the
eligibility criteria for applying for reservation. Any change in the eligibility status
for reservation at this stage would have caused confusion and led to possible
litigation challenging such a change. This would have only caused further delay.
We are still in the midst of the pandemic and 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. As a result, we allow the implementation of EWS reservation
in AIQ seats in NEET UG and PG seats for the academic year of 2021-2022. The
EWS category shall be identified in view of the criteria in O.M No. 36039/1/2019.
The challenge to the validity of the criteria determined by the Pandey committee 
PART H
37
for the identification of the EWS category shall be listed for final hearing in the
third week of March 2022.
……….….....................................................J.
[Dr Dhananjaya Y Chandrachud]
..…..….….....................................................J.
[AS Bopanna]
New Delhi;
January 20, 2022

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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