DR. SAURABH CHOUDHARY AND ORS.versusUNION OF INDIA AND ORS.

               DR. SAURABH CHOUDHARY AND ORS.                           A
                               v.
                    UNION OF INDIA AND ORS.

                             MAY 17, 2004
                                                                        B
   [R.C. LAHOTI, B.N. AGRA WAL, ASHOK BHAN, S.B. SINHA
              AND DR. AR LAKSHMANAN, JJ.]
                             0
        Constitution of India, 1950 :

       Articles 141, 142 and 144-Judgment-Prospective operation of- C
Medical admissions-Saurabh Chaudri's case directing All India quota of
50% of PG seats to be filled up by common entrance test-IA. by Union
of India seeking clarification that Saurabh Chaudri's case to be applied
prospectively since admission process for 2004 PG courses had alrea_dy
started prior to the saidjudgment-Held, allotment ofseats under All India D
quota, process as to which had already commenced shall remain confined
to 25% only-Education/Educational Institutions-Medical admissions.

       Per majority (Lahoti, Agrawal, Ashok Bhan and Dr. Lakshmanan,
JJ.)                                                                    E
     1.1.     It would be appropriate to hold and direct the decision
in Dr. Saurabh Chaudri's case being made applicable only prospectively
and thus to exclude from the operation thereof the process of admission
which had already commenced and was nearing finalisation when the F
judgment came to be pronounced. (615-E-F]

     1.2.     It is directed that the allotment of seats under AU-India
quota, the process as to which had commenced pursuant to the
advertisement dated September 16, 2003 shall remain confined to 25%
only. (615-F]                                                           G

     Saurabh Chaudri & Ors. v. Union of India & Ors., (2003] 11 SCC
146, (2003) 9 SCALE 272, clarified.

       Dr. Pradeep Jain and Ors. Etc. v. Union of India and Ors. Etc., H
                                   611
    612                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A (1984) 3 sec 654 and AJIMS Students Union v. A/IMS, (2002) 1 sec
    428, referred to.

         Dr. Dinesh Kumar & Ors. (II) v. Motilal Nehru Medical College,
    Allahabad &Ors., (1986) 3 SCC 727, stands overruled.
B
          Per Sinha, J. (Dissenting)

                                                  •
          The jurisdiction of this Court under Article 142 of the Constitution
    of must be applied at the time of rendition of the judgment and not
C   thereafter. After a judgment is rendered the Court can only exercise its
    power ofreview, ifit intends to take a different view from the one rendered
    in the main judgmi;.nt. Review of the judgment cannot be granted in the
    garb of a clarification. It is not the case of the Union of India that the
    judgment in Saurabh Chaudri's case cannot be given effect to even at
    this stage. If it can be given effectto the court should not issue a direction
D   which would run contrary to the ratio laid down by this Court in the
    main judgment, particularly when the examinations had been held much
    after the rendition of the judgment. Asking the court to apply the
    judgment of this Court with prospective effect would amount to asking
    for a review, and thus, the same cannot be permitted to be achieved by
E   filing an application for clarification. Application for clarification/
    modification filed by Union oflndia is based on wholly wrong premise. A
    judgment, as is well-known, must be read as a whole. So read it is evident
    that declaration of law has clearly been made therein. There does not
    exist any ambiguity clarification. (625-D-E; 626-A-C)

F      Delhi Administration v. Gurdip Singh Uban and Ors., (2000) 7 SCC
  296; Saurabh Chaudri & Ors. v. Union of India & Ors., (2003) 11 SCC
  146 = (2003) 9 SCALE 272; Dr. Pradeep Jain and Ors. Etc. v. Union of
  India and Ors. Etc., (1984) 3 sec 654; Dr. Dinesh Kumar & Ors. (II)
  v. Motilal Nehru Medical College, Allahabad & Ors., [1986) 3 SCC 727;
G Magan Mehrotra and Ors. v. Union of India and Ors. (2003) 3 SCALE
  101; T.MA. Pai Foundation and Ors. v. State of Karnataka and Ors.,
  (2002) 8 SCC 481; Islamic Academy of Education and Anr. v. State of
  Karnataka and Ors., JT(2003) 7 SC 1; Union of India v. Naveen Jindal
  and Anr., [20041 2 SCC 510; Prafulla Kumar Das and Ors. Etc. v. State
H of Orissa and Ors., Etc., (2003) 11 sec 614; S.S. Bola and Ors. v. B.D.
                   SAURABH CHOUDHARY v. U.0.1.                         613

Sardana and Ors., (1997) 8 sec 522 and Commissioner of Customs, A
Calcutta and Ors. v. Indian Oil Corpn. Ltd. and Anr,. [2004) 3 SCC 488,
referred to.

     CIVIL ORIGINAL JURISDICTION : I.A. Nos. 6-7 and 8, 9-14.

                                    IN                                         B
     Writ Petition (C) No. 29 of 2003.

     Under Article 32 of the Constitution of India.

     Raju Ramachandran, Additional Solicitor General, Ranjit Kumar, C
Gopal Subramanium, K. Radhakrishnan, P.P. Malhotra, S.K. Dholakia, Sr.
Advs., M.C. Dhingra, A. Mariarputham, Ms. Aruna Mathur, Shankar
Divate, Parmanand Gaur, Ms. Sunita Sharma, 0.S. Mahra, Divjyot Singh,
Nikhil Nayyar, S. Udaya Kumar Sagar, Ms. Bina Madhavan, Bikas Kar
Gupta, Ms. Pooja Nanekar, Sanjay R. Hegde, Shailendra Sharma, Ms. Binu
Tamta, Manoj Kumar Das, Sibo Sankar Mishra, Maninder Singh, Angad D
Mirdha, Ms. Pratibha M. Singh, Ms. Krishna Sarma, Ms. Asha G. Nair,
V.K. Siddharthan, Anil Shrivastav, B.B. Singh, Prakash Shrivastava, Ms.
Hemantika Wahi, Ms. Shalini Gupta, Mohit Chaudhary, Dhruv Mehta, Ms.
Kavita Wadia, J.S. Attri, Anis Suhrawardy, Ashok Mathur, Sanjay R.
Hegde, Khwairakpam Nobin Singh, M. Gireesh Kumar, Ms. Kamakshi, S. E
Mehlwal, Uday Umesh Lalit, Ravindra Kumar Adsure, Ranjan Mukherjee,
Ms. V.D. Khanna, Radha Shyam Jena, Swaroop Singh, Addi. Advocate
General, for State of Punjab, Kuldip Singh, Raj Kumar Pandey, Jatinder
Kumar Bhatia, Ms. Sandhya Goswami, H.C. Kharbanda, Subramonioum
Prasad, Gopal Singh, Anurag Sharma, Navin Prakash, Tara Chandra F
Sharma, Ms. Neelam Sharma, Ms. Sunita Sharma, V.G. Pragasam, Ms.
Kamini Jaiswal and M.N. Shroff for the appearing parties.

     The following Orders of the Court were delivered :

I. Lahoti; Agrawal, Ashok Bhan and Dr. Lakshmanan, JJ:                         G
      Several applications have been filed seeking clarifications in, and/or
directions for implementing, the judgment of this Court dated 4 November
4, 2003 in W.P.(C) No. 29 of 2003 - Saurabh Chaudri & Ors. v. Union
of India & Ors., and connected cases (since reported as [2003] I I
scr1~.                                                                         H
    614                SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.

A        The issue arising for decision was : whether any reservation, be it
    based on residence or on institutional preference, is constitutionally
    permissible in PG courses of study. The conclusions arrived at by the Court
    may briefly be summed up as under :-

B (I)     All-India quota of PG seats should be 50% (instead of 25% as
          prevailing hitherto) which should be filled up by common entrance
          test.

    (2)   The original scheme as framed by this Court in Dr. Pradeep Jain's
          Case (1984] 3 SCC 654 shculd be continued unless replaced by a
c         Central Legislation in preference to the scheme laid down by this
          Court in Dr. Dinesh Kumar's case (1986] 3 SCC 727.

    (3)   Institutional preference to be given to medical students for the
          purpose of admission against PG seats in All India InstiMe of
D         Medical Sciences should remain confined to 50% of the total seats
          in MBBS and the decision of this Court in AIIMS Students Union v.
          A/IMS, (2002] I SCC 428 should continue to hold the field.

          The examination for admission against All-India quota seats is
E conducted by All India Institute of Medical Sciences (hereinafter, 'AIIMS')
  The prospectus for holding All-India Entrance Examination for MD/MS/
  PG Diploma and MDS Courses 2004 was issued by the AIIMS and was
  available for sale on and from Sept. 22, 2003. Therein it was declared that
  the competitive entrance examination on All-India basis was being held for
F admission to 25% open merit seats in various post-graduate courses. Public
  advertisement in this regard was issued on September 16, 2003. The last
  date for receipt of applications was October 27, 2003. The examinations
  were held on January 11, 2004. The result was declared on March 4 2004.
  The AIIMS commenced counselling for the purpose of allotting 25% PG
  seats. At this point of time, several applications have come to be filed. IA
G No. 8 of2004 has been filed by the Union oflndia submitting that it would
  be proper to confine the percentage of seats for the All-India quota to 25%,
  i.e., the percentage based whereon the process for selection and admission
  had already commenced before the date of judgment of this Covrt. There
  are several other similar applications filed by a few students who have
H applied for admission against quotas other than All-India quota. IA No. 7
                   SAURABH CHOUDHARY v. U.0.1.                         615

of 2004 has been filed by a batch of students seeking admission against A
All-India quota for directing the Union of India to make available 50%
seats under the All India quota consistently with the judgment of this Court.
There are other similar applications.

      We have heard the learned Solicitor General and all other learned B
counsel appearing for the several applicants. It is not disputed at the Bar
that the process of admission commenced with the release of prospectus
and public advertisement in September, 2003, and at that point of time the
seats available under the All-India quota were only 25% and this is how
the examination was planned and obviously the medical graduates also C
must have made applications seeking admissions against 25% seats. The
law has been settled by the Constitution Bench of this Court through its
judgment dated November 4, 2003. However, this Court has nowhere in
its judgment made the declaration of law applicable to the process of
admission which had already commenced. Indeed, there is no direction
made to the contrary either, i.e., as to the prospective applicability of the D
judgment and prospective overruling of the decision of this Court in Dr.
Dinesh Kumar case (supra). This has prompted the several applications
being filed and the position, therefore, needs to be clarified so as to clear
the doubts.
                                                                             E
      In our opinion, it would be appropriate to hold and direct the decision
in Dr. Saurabh Chaudri 's case being made applicable only prospectively
and thus exclude from the operation thereof the process ofadmission which
had already commenced and was nearing finalisation when the judgment
came to be pronounced.                                                        F
     Accordingly, it is directed that the allotment of seats under All-India
quota, the process as to which had commenced pursuant to the advertisement
dated September 16, 2003 shall remain confined to 25% only. As a
consequence, IA No. 8 of 2004 filed by the Union of India and IA Nos.
9, 12, 13 and 14 seeking similar relief, and taking the same stand as has G
been taken by the Union of India, are allowed.

      IA Nos. 6, 7 and I 0 seeking implementation of 50% All-India quota
for the current year and taking stand contrary to the one taken by the Union
of India are dismissed.                                                      H
    616                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A         IA No. 11 seeking substitution of words 'post-graduate course' in
    place of 'MBBS course' in para 74 of the judgment (as reported in SCC)
    is totally uncalled for. It is also rejected.

        The interim order of stay on counselling is vacated. The same shall
B   now be resumed.

    II. Sinha J. :

        Whether a Constitution Bench decision of this Court in Saurabh
C (;_haudri & Ors. v. Union of India and Ors., [2003] 11 SCC 146 = (2003)
  9 SCALE 272 should be applied prospectively from the academic
  year 2005-06 is the question involved in these interlocutory applications
  which have not only been filed by the rival groups of students aspiring
  admissions in the medical colleges in different disciplines of Post Graduate
  Courses but also by the Union of India.
D
          The scheme relating to implementation of the policy of reservation
    evolved by various States, whether based on domicile or institution had
    been receiving attention of this Court for a long time. Institutional
    reservation in preference to domicile reservation found favour with this
E   Court in Dr. Pradeep Jain and Others Etc. v. Union of India and Others
    Etc., [1984 J 3 SCC 654 wherein it was held :

             "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
F            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
G            though residence requirement within the State shall not be ground
             for reservation in admissions to post-graduate courses, a certain
             percentage ofseats may in the presents 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,
H            may be given preference for admission to the post-graduate
                        SAURABH CHOUDHARY v. U.0.1.                         617

             course in the same medical college or university but such A
             reservation on the basis of institutional preference should not in
             any even exceed 50 per cent of the total number of open seats
             available for admission to the post-graduate course. This outer
             limit which we are fixing will also be subject to revision on the
             lower side by the Indian Medical Council in the same manner as B



..           directed by us in the case of admissions to the MBBS course. But,
             even in regard to admissions to the post-graduate course, we
             would direct that so far as super specialities such as neuro-surgery
             and cardiology are concerned, there should be no reservation at
             all even on the basis of institutional preference and admissions C
             should be granted purely on merit on all-India basis."
                                                             (Emphasis supplied)

         The said decision was modified by this Court in Dr. Dinesh Kumar
     & Ors. (II) v. Motilal Nehru Medical College, Allahabad & Ors., (1986] D
     3 sec 727 stating :

             " ... 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 E
             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 oflndia, that
             not less .than 15 per cent of the total number of seats in each
             medical college or institution, without taking into account any F
             reservations validly made, shall be filled on the basis of All India
             Entrance Examination ..."

          The principle was reiterated in Magan Mehrotra and Ors. v. Union
     of India and Ors., [2003] 3 SCALE JOI.                                G

          In Saurabh Chaudri (supra), having regard to the constitutional
     scheme and the need of the time while upholding the constitutional validity
     of institutional reservation, it was held :
                                                                                   H
    618                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A                 "However, the test to uphold the validity of a statute on
             equality must be judged on the touch-stone of reasonableness. It
             was noticed in Dr. Pradeep 's Jain's case (supra) that reservation
             to the extent of 50% was held to be reasonable. Although
             subsequently in Dr. Dinesh Kumar's case (supra) it was reduced
B            to 25% of the total seats. The said percentage of reservation was
             fixed keeping in view the situation as then existing. The situation
                                                                                     ,..
             has now changed to a great extent. Twenty years have passed. The
             country has during this time have produced a large number of Post
             Graduate doctors. Our Constitution is organic in nature. Being a

c            living organ, it is ongoing and with the passage oftime, law must
             change. Horizons of constitutional law are expanding.

                   Having regard to the facts and circumstances of the cases,
             we are of the opinion that the original scheme as framed in Dr.
             Pra:ieep Jain's case (supra) should be reiterated in preference to
D            Dr. Dinesh Kumar's case (supra). Reservation by way of
             institutional preference, therefore, should be confined to 50% of
             the seats since it is in public interest".

          The Court further directed that only one test should be held for all
E the students taking admission throughout the country. The said order was
    passed keeping in view the fact that whereas one entrance test is held for
    admission against 25% of all India quota, the other tests are being held by
    the respective Universities/States. It was emphasized that the disparities ir.
    such tests should be done away with and merit of the students should be
F   judged on the basis of one test held therefor.

       The hearing in Saurabh Chaudri (supra) was completed and the
  judgment was reserved on 29.4.2003. The interlocutory application filed
  by the writ petitioners, for a direction upon the respondents not to take
G admission of the students pursuant to or in furtherance of the results
  published by the Delhi University, however, was heard on 29.4.2003 and
  the order thereupon was passed on 1.5 .2003 directing :

                 "Keeping in view the fact that the process of admission is
H            complete and successful students are to join their respective
                   SAURABH CHOUDHARY v. u.o.r.                          619

         courses of studies on and from 2nd May, 2003, interest of justice A
         will be subserved if the admission of petitioners may be subject
         to the decision of these petitions.

               In that view of the matter, we are not inclined to pass any
         further interim orders. However, the admission of petitioners in B
         Post Graduate Courses shall be subject to the decision in these
         petitions."

      It is not in dispute that the Union of India and all the States were
parties to the writ petition, and, 'thus, were aware of the aforementioned C
orders as also the fact that the judgment in the matter has been reserved.
Despite the same All India Institute of Medical Sciences (AIIMS) issued
a purported advertisement on 16.9.2003 fixing 25%quota for the students
appearing at the All India Admission Test. It failed and/or neglected to
point out that the said advertisement would be subject to the result of the
decision in Saurabh Chaudri (supra); although in its prospectus reference D
was made to the earlier order of this Court. The last date for receipt of the
application was fixed on 29 .I 0.2003 and entrance examinations were held
on 1I. 1.2004 and allotment of seats by personal appearance had been fixed
on 8.3.2004 wherefor results were declared on 4.3.2004.
                                                                               E
      Having regard to the fact that the Union oflndia was not implementing
the judgment of this Court in Saurabh Chaudri (supra), various interlocutory
applications were filed being I.A. Nos. 6, 7 and 10, inter alia, praying for
the following reliefs :
                                                                               F
         "(a) direct the Director General Health Services to provide
              number of seats according to 25% additional seats, in terms
              of judgment dated 4.11.2003 passed by this Hon 'hie Court,
              to AIJMS so as to enable it to declare result on <hat basis
              and hold counselling thereafter;                            G

         (b)   stay the counselling scheduled to commence by DGHS from
               15.3 .2004 onwards for allotting seats to MS/MD/PG Course-
               2004;
                                                                               H
    620                SUPREME COURT REP(i)RTS [2004] SUPP. 2 S.C.R.

A            (c)   direct the Director General Health Services to issue
                   instructions to all the contributing States/Universities not to
                   fill more than 50% of its sears on the basis of institutional
                   preference as permitted by this. Hon 'ble Court vi de the
                   aforesaid judgment; and may also
B
             (d)   pass such other order or orders as this Hon 'ble Court may
                   deem fit and proper in the facts and circumstances of the
                   case."


c India One  of the said application was filed on l 1.3.2004. The Union of
        filed an application for clarification only on 19.3.2004 asking for
    certain clarificatory directions on the purported issues stated therein. It is
    unfortunate tliat the Union of India did not consider it expedient to
    approach this Court soon after the judgment was pronounced. If it faced
D   any difficulty in relation to the efficacy of implementing the directions
    issued in the judgment, it could have approached this Court immediately
    after the pronouncement thereof; but it chose to wait till other applications
    had been filed by the students.

          By reason of a judgment, as is well-known, a law is declared.
E Declaration of such law may affect the rights of the parties retrospectively.
  Prospective application of a judgment by the court must, therefore, be
  expressly stated. The order dated l.5.2004 furthermore is a pointer to the
  fact that this Court refused to interfere at that stage having regard to the
  fact that the admission of the students had already taken place. Despite the
F same, such admissions were made subject to the result of the writ petition.
  The parties, therefore, could not have any doubt as regard the fact that the
  judgment will be implemented in relation to the students who were to take
  admission in 2004 and onwards. The students appearing at the All India
  Entrance Examination held by AIIMS or by the State Governments or the
G Universities, presumably were aware of the said fact.

         As would appear from one of the interlocutory applications being I.A.
    No. 12 of 2004 that the students had appeared at both the examinations.
    The students who evidently did not fare well in the All India Test but had
H   fared well in the test held by the States, have filed application for a
                   SAURABH CHOUDHARY v. U.0.1.                          621

directions by this Court that the decision in Saurabh Chaudri (supra) be A
given effect from the academic year 2005-06. The said students submit that
the examinations conducted by AIIMS, New Delhi and the one conducted
for admission in the State quota are substantially different and the
probability of the students scoring well in the State examination being not
able to do well in the all-India Examination and vice-versa.                B
      It is not the contention of anybody that the students in general could
not appear both at the examination held by AIIMS as also the State/
Universities. Once they have taken a chance, they cannot be heard to say
that they had prepared for the examination held by University/State.
                                                                               c
      A perusal of the judgment in Dr. Saurabh Chaudri (supra) leaves no
.manner of doubt that the emphasis had been laid therein on merit. In no
 uncertain terms, this Court held that the merit of the students must be
 judged on the basis of one test which should be the criteria for determining
 the inter se merit of the students. Despite such clear direction, two D
 examinations were held.

      Reservation is anti-thesis to rule of merit. A I I-Judge Bench of this
Court in T.MA. Pai Foundation and Others v. State of Karnataka and
Others., [2002] 8 sec 481 sought to strike a balance between the right E
of minority students to take admission in the minority institutions
vis-a-vis the meritorious students. The said decision came up for
interpretation in Islamic Academy of Education and Anr. v. State of
Karnataka and Ors., JT (2003) 7 SC I. Therein this Court held :

         "For the purpose of achieving excellence in a professional
                                                                               F
         institution, merit indisputably should be a relevant criterion.
         Merit, as has been noticed in the judgment, may be determined
         in various ways (p:;ira 59). There cannot be, however, any foold-
         proof method whereby and whereunder the merit of a student for
         all times to come may be judged. Only, however, because a G
         student may fare differently in a different situation and at different
         point of time by itself cannot be a ground to adopt different
         standards for judging his merit at different points of time. Merit
         for any purpose and in particular for the purpose of admission in
         a professional college should be judged as far as possible on the H
    622                SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.

A            basis of same or similar examination. In other words, inter se
             merit amongst the students similarly situated should be judged
             applying the same norm or standard. Different types of
             examinations, different sets of questions, different ways of
             evaluating the answer books may yield different results in the case
             of the same student.
B
                  Selection of students, however, by the minority institutions
             even for the members of their community cannot be bereft of
             merit. Only in a given situation less meritorious candidates from
             the minority community can be admitted vis-a-vis the general
c            category; but therefor the modality has to be worked out. For the
             said purpose de facto quality doctrine may be applied instead of
             de Jure equality as every kind of discrimination may not be
             violative of the quality clause. (See Pradeep Jain v. Union of
             India, (1984] 3 SCC 654."
D
         The aforementioned judgment had been noticed by one of us in
    Saurabh Chaudri (supra) also.

          One of us, Lakshmanan, J. observed :
E
             "The view was approved by this Court in the case of Indra
             Sawhney v. Union of India. If one looks at this issue in the light
             of the spirit of the ratios laid down in Preeti Srivastava v. State
             of MP., AIR (1999) SC 2894 and in A/IMS Students Union v.
F            A/IMS, AIR (2001) SC 3262, one would come to the inevitable
             conclusions that the constitutional reservations contemplated under
             Article 15(4) should be kept at the minimal level so that national
             interest in the achievement of the goal of excellence in all fields
             is not unduly affected."
G
          It was, inter alia, concluded :

             "(4) The institutional preference should be limited to 50% and the
             rest being left for open competition based purely on merits on an
             All India basis."
H
                   SAURABH CHOUDHARY v. U.0.1.                         623

      Right of a meritorious student to get admission in a Post-Graduate A
Course is a Fundamental and Human Right, which is required to be
protected. Such a valuable right cannot be permitted to be whittled down
at the instance of less meritorious students.

      Constitution is living organ. Reasonableness of the policy of the State B
in the matter of reservation of seats is always subject to judicial scrutiny.
Rights are, thus, determined in terms of judgment interpreting the
constitution. In Union of India v. Naveen Jindal and Another, [2004] 2
SCC 510, this Court observed :

              "Interpretation of the Constitution is a difficult task. While
                                                                             c
         doing so, the constitutional courts are not only required to take
         into consideration their own experience over the time, the
         international treatise and covenants but also keeping the doctrine
         of flexibility in mind. This Court times without number have D
         extended the scope and extent of the provisions of the fundamental
         rights, having regard to several factors including the intent and
         purport of the constitution makers as reflected in Parts IV and IVA
         of the Constitution of India."

     It was further noticed :                                                E

         In People's Union for Civil Liberties (PUCL) and Another Etc.
         v. Union of India and Another, [2003) 4 SCC 399 at page 403,
         this Court held :
                                                                             F
        " .. It is established that fundamental rights themselves have no
        fixed content, most of them are empty vessels into which each
        generation must pour its content in the light of its experience. The
        attempt of the court should be to expand the reach and ambit of
        the fundamental rights by process of judicial interpretation. The G
        Constitution is required to be kept young, energetic and alive."

      This Court must remind itself that in Saurabh Chaudri (supra), a
contention was raised that any reservation, be it domicile or institutional
is not constitutionally permissible. This Court although did not agree with H
    624                SUPREME COURT REPORTS (2004) SUPP. 2 S.C.R.

A the said contention but interpreted the constitutional scheme having regard
    to the present requirement of the society. The judgment, therefore, must
    be given full effect so that no benefit is derived by the students who could
    not secure any rank in All-India Examination but secured rank in the
    examination held by the State. The said students are less meritorious than
B those who fared well in the all-india Examination held by AIIMS.

         Furthermore, by reason of an advertisement alone, the students did
    not derive any right far less any vested or accrued right. (See Prafulla
    Kumar Das and Others Etc. v. State of Orissa and Others Etc., (2003] 1 I
C sec 614).
        A statute is applied prospectively only when thereby vested or
  accrued right is taken away and not otherwise. (See S.S. Bola and Others
  v. B.D. Sardana and Others, (1997] 8 SCC 522). A judgment rendered by
  a superior court declaring the law may even affect the right of the parties
D retrospectively.
          This Court recently in Commissioner of Customs, Calcutta and
    Others v. Indian Oil Corpn. Ltd. and Another, (2004] 3 SCC 488 stated
    the law thus :
E
             "As is evident from Section 151-A, the Board is empowered to
             issue orders or instructions in order to ensure uniformity in the
             classification of goods or with respect to levy of duty. The need
             to issue such instructions arises when there is a doubt or ambiguity
F            in relation to those matters. The possibility of varying views being
             taken by the customs officials while administering the Act may
             bring about uncertainty and confusion. Jn order to avoid this
             situation, Section 15 I-A has been enacted on the same lines as
             Section 37-A of the Central Excise Act. The apparent need to issue
             such circulars is felt when there is no authoritative pronouncement
G            of the Court on the subject. Once the relevant issue is decided by
             the Court at the highest level, the very basis and substratum of
             the circular disappears. The law laid down by this Court will
             ensure uniformity in the decisions at all levels. By an express
             constitutional provisions, the law declared by the Supreme Court
H            is made binding on all the courts within the territory of India (vide
                   SAURABH CHOUDHARY v. U.0.1.                          625

         Article 141 ). Proprio vigore the law is binding on all the tribunals A
         and authorities. Can it be said that even after the law is declared
         by t)le Supreme Court the adjudicating authority should still give
         effect to the circular issued by the Board ignoring the legal
         position laid down by this Court? Even after the legal position is
         settled by the highest court of the land, should the Customs B
         Authority continue to give primacy to the circular of the Board?
         Should Section 151-A be taken to such extremities? Was it
         enacted for such purpose? Does it not amount to transgression of
         constitutional mandate while adhering to a statutory mandate?
         Even after the reason and rationale underlying the circular
         disappears, is it obligatory to continue to follow the circular? C
         These are the questions which puzzle me and these are the
         conclusions which follow if the observations of this Court in the
         two cases of Dhiren Chemical Industries are taken to their logical
         conclusion."
                                                                              D
     Furthermore, it is extremely doubtful whether a Constitution Bench
can modify a judgment rendered by a different Constitution Bench even
in exercise of its jurisdiction under Article 142 of the Constitution oflndia.
The jurisdiction of this Court under Article 142 of the Constitution oflndia
must be applied at the time of renditlon of the judgment and not thereafter. E
After a judgment is rendered the Court can only exercise its power of
review, if it intends to take a different view from the one rendered in the
main judgment. Review of the judgment cannot be granted in the garb of
a clarification (See Delhi Adfl!{nistration v. Gurdip Singh Uban and
Others, [2000] 7 SCC 296).
                                                                              F
      Fu-rthermore, an order of review or modification of a judgment should
not also ordinarily be passed at the behest of the app Iicants who are not
parties to the writ petition. Union of India and the States, on the other hand,
were parties to the writ petition. They in terms of Article 141 as w<;ll as
Article 144 of the Constitution of India were bound to implement the G
judgment. They had enough time to do so. If they had taken any other
decision, it would be its own peril. Meritorious students cannot be
permitted to suffer therefor.

     We must notice that it is not a case of the Union of India that the H
    626                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A judgment in Saurabh Chaudri (supra) cannot be given effect to even at this
  stage. If it can be given effect to the court should not issue a direction which
  would run contrary to the ratio laid down by this Court in the main
  judgment, particularly when the examinations had been held much after
  the rendition of the judgment. Asking the court to apply the judgment of
B this Court with prospective effect would amount to asking for a review and,
  thus, the same cannot be permitted to be achieved by filing an application
  for clarification.

         Application for clarification/modification filed by Union of India is
    based on wholly wrong premise. A judgment, as is well-known, must be
C   read as a whole. So read it is evident that declaration of law has clearly
    been made therein. There does not exist any ambiguity requiring clarification.

           Therefore, I respectfully dissent with the opinion of Brother Lahoti,
    J. I am of the view that no case has been made out for applying the
D   judgment in Saurabh Chaudri (supra) from the academic year 2005.

    R.P.                                                      Matter is pending.