13 Dec 2009

Decision to give reservation rests only on Government: Supreme Court

In an eleborately written recent decision the Supreme Court has declared that the Constitution only makes a provision for grant of reservation of seats in educational institutions and does not mandate that the reservation should be given. The decision to give the reservation vests squarely with the concerned government which depending upon the factors may chose to give reservation or otherwise. The Supreme Court was dealing with the challenge against the decision of the High Court of Punjab and Haryana which had dismissed the petitions filed before it praying the High Court to quash the "prospectus for the MD/MS/PG Diploma and MDS Courses issued by Maharshi Dayanand University, Rohtak, Haryana for Academic Session 2007-2008 to the extent that it does not provide any reservation of seats for Scheduled Caste/Scheduled Tribe candidates."

The decision of the State Government was defended by its counsels in the following terms; "the State of Haryana has already provided reservation at the graduate level courses i.e. MBBS/BDS/BAMS/BHMS etc. and there is no reservation in respect of Post-Graduate Courses and that is the reason the prospectus issued for Post-Graduate Courses does not contain any clause for reservation. ... Article 15(4) is only an enabling provision and the State of Haryana, taking note of various aspects, decided not to provide reservation for Scheduled Caste, Scheduled Tribe and Other Backward Class candidates in Post-Graduate Courses. ... there cannot be any mandamus compelling the State to provide reservation for a particular class of persons."

In this factual background, the Supreme Court declared the position of law as under;

the consistent view of this Court is that Article 15(4) is only an enabling provision and it is for the respective States either to enact a legislation or issue an executive instruction providing reservation in Post- Graduate Courses. In Indra Sawhney and Others vs. Union of India and Others, 1992 Supp (3) SCC 217, which is a nine-Judge Bench judgment of this Court, while considering Articles 16(4) & (1), 15(4), 14, 32, 340 and various other provisions, Jeevan Reddy, J. speaking for the majority held:
"744. The aspect next to be considered is whether clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside clause (4) i.e., under clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, -- and not for all and sundry reasons -- that any further reservations, of whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under clause (4) as well as under clause (1), the vacancies available for free competition as well as reserved categories would be a correspondingly whittled down and that is not a reasonable thing to do."
10) In K. Duraisamy and Another vs. State of T.N. and Others, (2001) 2 SCC 538, a three-Judge Bench, while dealing with the reservation at the Post-Graduate level and super-speciality level, observed as follows:- 
"8. That the Government possesses the right and authority to decide from what sources the admissions in educational institutions or to particular disciplines and courses therein have to be made and that too in what proportion, is well established and by now a proposition well settled, too. It has been the consistent and authoritatively-settled view of this Court that at the super-speciality level, in particular, and even at the postgraduate level reservations of the kind known as "protective discrimination" in favour of those considered to be backward should be avoided as being not permissible. Reservation, even if it be claimed to be so in this case, for and in favour of the in-service candidates, cannot be equated or treated on par with communal reservations envisaged under Articles 15(4) or 16(4) and extended the special mechanics of their implementation to ensure such reservations to be the minimum by not counting those selected in open competition on the basis of their own merit as against the quota reserved on communal considerations."
11) In AIIMS Student's Union vs. AIIMS and Others, (2002) 1 SCC 428, while considering the similar issue, it was held:-
"44. When protective discrimination for promotion of equalisation is pleaded, the burden is on the party who seeks to justify the ex facie deviation from equality. The basic rule is equality of opportunity for every person in the country, which is a constitutional guarantee. A candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels and education like postgraduate courses. Reservation, as an exception, may be justified subject to discharging the burden of proving justification in favour of the class which must be educationally handicapped -- the reservation geared up to getting over the handicap. The rationale of reservation in the case of medical students must be removal of regional or class inadequacy or like disadvantage. Even there the quantum of reservation should not be excessive or societally injurious. The higher the level of the speciality the lesser the role of reservation."
Again it was held that:-
".....Permissible reservation at the lowest or primary rung is a step in the direction of assimilating the lesser fortunates in the mainstream of society by bringing them to the level of others which they cannot achieve unless protectively pushed. Once that is done the protection needs to be withdrawn in the own interest of protectees so that they develop strength and feel confident of stepping on higher rungs on their own legs shedding the crutches. Pushing the protection of reservation beyond the primary level betrays the bigwigs' desire to keep the crippled crippled for ever....... Any reservation, apart from being sustainable on the constitutional anvil, must also be reasonable to be permissible. In assessing the reasonability, one of the factors to be taken into consideration would be -- whether the character and quantum of reservation would stall or accelerate achieving the ultimate goal of excellence enabling the nation constantly rising to higher levels. In the era of globalisation, where the nation as a whole has to compete with other nations of the world so as to survive, excellence cannot be given an unreasonable go-by and certainly not compromised in its entirety......"
The Court concluded, thus, as under;
The principle behind Article 15(4) is that a preferential treatment can be given validly when the socially and educationally backward classes need it. This article enables the State Government to make provisions for upliftment of Scheduled Castes and Scheduled Tribes including reservation of seats for admission to educational institutions. It was also held that Article 15(4) is not an exception but only makes a special application of the principle of reasonable classification. Article 15(4) does not make any mandatory provision for reservation and the power to make reservation under Article 15(4) is discretionary and no writ can be issued to effect reservation. Such special provision may be made not only by the Legislature but also by the Executive.
19) As stated earlier, Article 15(4) is an enabling provision and the State Government is the best judge to grant reservation for SC/ST/Backward Class categories at Post-Graduate level in admission and the decision of the State of Haryana not to make any provision for reservation at the Post-Graduate level suffers no infirmity. In our view, every State can take its own decision with regard to reservation depending on various factors. Since the Government of Haryana has decided to grant reservation for SC/ST categories/Backward Class candidates in admission at MBBS level i.e. under graduate level, then it does not mean that it is bound to grant reservation at the Post-Graduate level also. As stated earlier, the State Government, in more than one communication, has conveyed its decision that it is not in favour of reservation for SC/ST/Backward Classes at Post-Graduate level. In such circumstances, Court cannot issue mandamus against their decision and their prospectus also cannot be faulted with for not providing reservation in Post-Graduate Courses. However, we make it clear that irrespective of above conclusion, State of Haryana is free to reconsider its earlier decision, if they so desire, and circumstances warrant in the future years. 

Being of this view, the Supreme Court declined to interfere in the decision of the State Government not to give reservation. 

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