Holding

Reservation for Scheduled Castes, Scheduled Tribes and Backward Classes cannot be extended to the 15% unreserved seats, and the High Court’s direction is a manifest error.

Summary

The Supreme Court examined whether the Andhra Pradesh government could extend reservations for Scheduled Castes, Scheduled Tribes and Backward Classes to the 15% of seats left unreserved for non‑local candidates under the 1974 Presidential Order. The appellant, N.T.R. University of Health Sciences, argued that reservations had already been made for 85% of seats (including 15% for SC, 6% for ST and 25% for BC) and that extending them to the remaining 15% would push the total reservation beyond the permissible 46% (or 50%) limit. The Court held that the Presidential Order, read with Article 371‑D of the Constitution, limits total reservation to 46% and that the High Court’s direction to reserve seats in the 15% unreserved category was a manifest error. Consequently, the Supreme Court set aside the High Court order and allowed the appeals.

Issues considered

Whether the 1974 Presidential Order and Article 371‑D permit reservation for SC/ST/BC in the 15% unreserved seats for non‑local candidates.
Whether extending reservation would cause the total reservation to exceed the constitutional ceiling of 50% (or the region‑wise 46%).
Whether the High Court’s direction to reserve seats in the 15% unreserved category is legally valid.

Legislation cited

Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983

Subjects

reservationArticle 371-DAndhra Pradesheducational admissionsSC/ST/BCconstitutional lawaffirmative action50% ceilinglocal vs non‑local seats

Judgment

- N.T.R. UNIVERSITY OF HEALTH SCIENCES, VIJAYWADA
v.
G. BABU RAJENDRA PRASAD AND ANR.
A

MARCH I 0, 2003

[V.N. KHARE, CJ, S.B. SINHA AND B
DR. AR. LAKSHMANAN, JJ.)

Educational Laws:

Andhra Pradesh Educational Institutions (Regulation of Admissions) C

- Order, 1974-Reserving 85% of seats in each course for local candidates in
relation to local area for admission, balance 15% reserved for candidates of
non local area-Government order making reservation to the extent of 15%,
6% and 25% for SC, ST and backward classes covering 85% of the reserved
seats and no reservation in respect of balance seats-Validity of-Held, Such
policy decision is valid if it is reasonable and is in conformity with the D
Presidential order-As reservation is made for the reserved category candidates
on the total number of seats available in each course, reservation for the
remaining seats does not arise-Thus High Court erred in directing reservation
for 15% of open seats-Constitution ofIndia, 1950 Articles 371-D, 15 and 16.
E
The Presidential Order viz. A.P. Educational Institution (Regulation
of Admissions) Order, 1974 provided that for admission to Universities
or educational institutions 85 % of the seats in every course of study
were reserved in favour of local candidates in relation to local areas and
balance seats of 15% were laid unreserved for open category candidates.
Thereafter, the Government order was passed by which reservation to F
the extent of 15%, 6% and 25% were made for Scheduled Castes,
Scheduled Tribes and Backward classes covering 85% of reserved seats
but no reservation was made with regard to 15% of the balance seats.
Thereafter, State enacted A.P. Educational Institutions (Regulation of
Admissions and Prohibition of Capital Fee) Act, 1983 and also framed G
A.P. Medical College (Admissions into Post Graduate Medical Course)
Rules, 1997. University of Health Sciences, Andhra Pradesh also made
regulations for admission to Post Graduate Medical courses in the Medical
College in terms of Presidential Order as well as 1997 Rules. Respondent,
a Scheduled caste candidate seeking admission to Post Graduate Medical
781 H
782 SUPREME COURT REPORTS [2003] 2 S.C.R.

A courses challenged the policy decision. High Court allowed the petition
and directed the appellant to reserve seats for reserved category for the
15% open seats also. Both the review petition and the letters patent
appeal filed by the appellant were dismissed. Hence the present appeals.

Appellant contended that the High Court erred in issuing the
B impugned direction as it failed to take into consideration that having
regard to the fact that the appellant has already made reservations to the
extent of 15%, 6% and 25% for Scheduled Castes, Scheduled Tribes and
Backward Classes respectively covering 85% of the seats, no further
reservation could be made in respect of balance 15% of the seats as by
C reason thereof the seats reserved for the reserved category candidates
would exceed 50%.
.
....
Allowing the appeals, the Court

HELD: I.I. Article 371-D of the Constitution of India contains a
D special provision applicable to the State of Andhra Pradesh only. 54% of
seats are required to be filled up from open categories and 46% of seats
are to be filled up from the reserved category candidates in each of the
three regions from the medical colleges and engineering colleges. Having
regard to the reservations made region-wide, indisputably 85% of seats
are to be filled up froin amongst local candidates whereas only 15% of
E seats are to be filled up from amongst outside candidates.
(792-G-H; 793-A]

1.2. Articles 15 and 16 of the Constitution of India provide for
enabling provisions. By reason thereof the State would be entitled to
either adopt a policy decision or make laws providing for reservations.
F How and in what manner the reservations should be made is a matter of
policy decision of the State. Such a policy decision normally would not be
open to challenge subject to its passing the test of reasonableness as also
the requirements of the Presidential Order made in terms,ofArticle 371-
D of the Constitution. (793-A-B(
G 1.3. It is not in dispute that limited seats are available for admission
in the super speciality courses. It may be true that normally the reservation
has to be made for the entire State but in terms of Article 371-D of the
Constitution of India reservation has to be made region-wise. The seats
have been reserved indisputably on total available seats in each discipline
H and those who come within the zone of consideration are considered for
i \

N.T.R. UNI. OF HEALTH SCIEN. v. G. BABU RAJENDRA PRASAD [S.B. SINHA, lJ783

admission from amongst the reserved category candidates. Once it is A
fonnd that reservation has been made for the reserved category candidates
on the total number of seats available in each course, the question of any
further reservation for the remaining seats would not arise. [793-C-E]

1.4. In the event, the ratio of the impugned judgment of the High
Court is given effect to having regard to the limited number of seats B
available by providing reservation of an additional seat, principle of
reservation to the extent is 50% would be violated. Furthermore, it is not
for the High Court to say as to the efficacy or otherwise of the policy of
the State as regards providing for reservation for the reserved category
candidates and in that view of the matter the High Court, committed a C
manifest error in issuing the impugned directions, as a result whereof
percentage of reservation would exceed 46%. Such a direction by the
High Court is not contemplated in law. (798-D-E]

Indra Sawhney v. Union of India and Ors., [1992[ Supp. 3 SCC 215;
R.K. Sabharwal v. State of Punjab, [1995[ 2 SCC 745; A.I.I.MS. Students D
Union v. A.l.l.M.S., [2002] 1 SCC 428; Marri Chandra Sekhar Rao v. Dean,
Seth G.S. Medical College and Ors., (1990] 3 SCC 130; Balaji v. State of
Mysore, [1963[ Supp. 1 SCR 439; NM Thomas v. State of Kera/a, AIR
[1976] SC 490; Rangarajan v Railway Karamchari Sangh, AIR (1981) SC
298 and K. Duraisamy and Anr. v. State of TN and Ors., [2001] 2 SCC 538,
~~~ E
Constitutional Law of India by HM. Seervai Fourth Edition p 611,
referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4852-
53 of 2000. F
From the Judgment and Order dated 29.3.2000 of the Andhra Pradesh
High Court in W.A. Nos. 341 and 1500 of 1999.

G. Prabhakar, for the Appellant.
G
The Judgment of the Court was delivered by

S.B. SINHA, J. Whether the Government of Andhra Pradesh while
framing A.P. Educational Institutions (Regulation of Admissions) Order, 1974
made in terms of Article 371-0 of the Constitution of India was bound to
provide reservation for 15% of non-local seats, although reservations in terms H
784 SUPREME COURT REPORTS (2003] 2 S.C.R.

A of its policy decision had been taken in respect of seats available for local
candidates, is the question involved in these appeals which arise out of a
judgment and order dated 29.03.2000 of the Full Bench of the Andhra Pradesh
High Court. The First Respondent herein is said to be a member of Scheduled
Caste. He questioned the validity of policy decision of the State of Andhra
B Pradesh as regards non-reservation for Scheduled Castes, Scheduled Tribes
and Backward Classes by filing a writ petition in the High Court.

A learned Single Judge of the Andhra Pradesh High Court by a judgment
and order dated 27. l 0.1998 directed the appellant herein to reserve seats for
the reserved category for 15% open seats also. A review application filed by
C the appellant herein before the learned Single Judge was dismissed. Thereafter,
the appellant preferred a letters patent appeal before the Division Bench
questioning the said order of the learned Single Judge. The Division Bench,
however, noticing conflict in some deci~ions on the question referred the
matter to a Full Bench on the following question :

D "Whether the reservations in tenns of Article 15(4) of the Constitution
of India in favour of Scheduled Castes, Scheduled Tribes and
Backward Classes could be provided even in respect of 15% of the
unreserved seats under the Presidential Order, 1974."

By reason of the impugned judgment the said appeals were dismissed.
E The appellant is, thus, in appeal before us.
By reason of the Constitution 32nd Amendment Act, a special provision
by way of Article 371-D of the Constitution of India was inserted in respect
of the State of Andhra Pradesh relating to both employment and education;
pursuant to or in furtherance whereof the President was empowered to make
F orders in relation thereto contained in different provisions for different parts
of the State. Pursuant to or in furtherance of the said power, A.P. Educational
Institution (Regulation of Admissio~s) Order, 1974 (hereinafter referred to as
the Presidential Order) was made. The relevant provisions of the Presidential
Order are as under :- --.
G (A) Para-2 "available seats" in relation to any courses of study as
number of seats provided in that course for admission at any time
after excluding those reserved for candidates from outside the State.
It defines "local area" in respect of any University or other educational
institution as the local area specified in para-3 of the order for the
H purpose of admission to such University or other educational
i\
N.T.R. UNI. or !!EAL TH SCIEN. "· G. BABU RAJENDRA PRASAD [S.B. SINHA, J.] 785

institution. A
(B) Para-3 carves out the local areas by reference to the earliest
Universities operating in Andhra, Telengana and Rayalaseema areas
of the State, Andhra University, Osmania University and Sri
Venkateswara University and delineates the district comprised in such
local area. B
(C) Para-4 sets out the qualifications for determining local candidates
with reference to study in an educational institution or institutions for
specified period or in the alternative with reference to residence in
the local area.

(D) Para-5 enjoins that admission to 85% of the available seats in
c
every course of study provided by Andhra, Nagarjuna, Osmania,
Kakatiya or Sri Venkateswara Universities or by educational institution
other than a State wide University or State-wide educational institution
which is subject to control of the State Government, shall be reserved
in favour of the local candidates in relation to the local area in respect D
of such University or other educational institution. Sub-para (2) of
this para states while determining number of seats to be reserved in
favour of the local candidates under sub para (I) any fraction of seats
shall be counted as one. The proviso to the para ordains that there
should be at least one unreserved seat.
E
(E) Para-8 enables the President by order to require the State to issue
such directions as may be necessary or expedient effectuating the
provisions of the order to any University or other educational institution
which shall comply with such directions.

(F) Para-9 reiterates the overriding effect set out in clause (I 0) of the F
parent Article and mandates that the provisions of the order shall
have the effect notwithstanding anything contained in any statute,
ordinance, rules, regulations, or other orders whether made before or
after the commencement of the Presidential Order irrespective of the
admissions. G
(G) Para-IO provides that nothing in the order shall affect the operation
of any provisions made by the State Government or other competent
authority whether before or after the commencement of the order in
respect of reservations in the matter of admissions to any University
or the educational institution in favour of women, socially and H
786 SUPREME COURT REPORTS (2003] 2 S.C.R.

A educationally backward class of citizens, the Schedule Castes and
Scheduled Tribes, in so far as such provisions are not inconsistent
with the order.

With a view to prescribe the procedure adopted for admissions, the
Government of Andhra Pradesh issued G.O.Ms. No.646 dated 10.7.1979
B whereby and whereunder it was directed that the procedure framed in
Annexure-lll thereto would be followed in the matter of implementation of
reservations in favour of local candidates provided under the Presidential
Order in respect of non-Statewide Universities and non-Statewide educational
institutions subject to its control; the relevant provisions whereof are as under:-
c "I. The number of "available seats" in the course of study shall first
be computed by deducting from the total number of sets provided in
that course, and the number of seats reserved for candidates from
---
outside the State.

2. The number of seats reserved in favour of local candidates in
D relation to local area in respect of the University or other educational
institution cor..cerned shall then be detennined; this number shall be
85% of the available seats, any fraction of a seat being counted as
one provided that there shall be at least one unreserved seat;

3. From amongst all eligible applicants, whether such applicants are
E local candidates or not, a provisional list of admission to fill the
available seats shall be drawn up. This provisional list shall be prepared
on the basis of the relative merit of all eligible applicants and the
reservations in favour of Scheduled Castes, Scheduled Tribes and
Backward Classes, women etc., as provided under the relevant rules
F of admission. The candidates included in the provisional admission
list shall be arranged in order of merit or where the rules of admission
provide for their arrangement in any other order, in the order so
provided;"

Mr. G. Prabhakar, learned counsel appearing on behalf of the appellant
··-
G has raised a short question in support of this appeal. The learned counsel
would submit that the High Court committed a manifest error in issuing the
impugned direction insofar as it failed to take into consideration that having
regard to the fact that the appellant has already made reservations to the
extent of 15%, 6% and 25% for Scheduled Castes, Scheduled Tribes and
H Backward Classes respectively covering 85% of the seats, no further
N.TR ' '1!. OF HEALTH SCI EN.''· G. BABU RAJENDRA PRASAD [S.B. SINHA, J.J 787

reservation could be made in respect of balance 15% of the seats as by reason A
thereof the seats reserved for the reserved category candidates would exceed
50%. It has been pointed out that out of 17 seats for admission in the post
graduate courses 8 seats were already reserved which would account for 46%
of the seats and, thus, if reservation is directed to be made in relation to 2
seats, which would have gone to the local candidates, one seat out of it will B
have to be reserved, which would mean reservation in excess of the quota of
reservation made in terms of Regulation 4 which reads thus :

"4. RESERVATION IN FA YOUR OF THE LOCAL CANDIDA TES

(A) Admission to 85% of the seats shall be reserved in favour
of the local candidates in relation to the local area as C
provided in A.P. Educational Institutions (Regulations of
Admission) Order, 1974 as amended from time to time.

STATE-WIDE COURSE:

M.D.(R.T) is State-wide course and admission to this D
course shall be regulated as per the provision in the A.P.
Educational Institutions (Regulations of Admission) Order,
1974 for State-wide course.

(B) LOCAL AREA :

(i) The part of the State comprising the Districts of
E
Srikakulam, Vizianagaram, Visakhapatnam, East
Godavari, West Godavari, Krishna, Guntur and Prakasam
(Andhra University and Nagarjuna University area) shall
be regarded as the local area for the purpose of admission
to the Andhra Medical College, Visakhapatnam, F
Rangaraya Medical College, Kakinada and Guntur Medical
College, Guntur.

(ii) The part of the State comprising the Districts of Adilabad,
Hyderabad (including twin cities) Rangareddy,
Karimnagar, Khammam, Medak, Mahaboobnagar, G
Nalgonda, Nizamabad and Warangal (Osmania University
and Kakatiya University area) shall be regarded as local
area for the purpose of admission to the Osmania Medical
College, Hyderabad, Gandhi Medical College, Hyderabad
and Kakatiya Medical College, Warangal.
H
788 SUPREME: COURT REPORTS (2003] 2 S.C.R.

A (iii) The part of the State comprising the Districts of
Ananthapur, Kurnool, Chittoor, Cuddapah and Nellore
(S.V. University area) shall be regarded as local area for
the purpose of admission to the Kurnool Medical College,
Kurnool, and S.V. Medical College, Tirupati.
B (C) LOCAL CANDIDATES :
(I) A candidate for admission shall be regarded as local candidate
in relation to a local area.
(i) If he/she studied in an Educational Institution or
Educational Institutions in such local area for a period of
c not less than 4 consecutive academic years ending with
the academic year in which he/she appeared or as the
case may be first appeared in relevant qualifying
examination.

Or
D
(ii) Where during the whole or any part of the 4 consecutive
academic years ending with the academic year in which
he/she appeared or as the case, may be first appeared for
the relevant qualifying examination, he/she has not studied
in Educational Institutions, if he/she had resided in that
E
local area for a period of not less than 4 years immediately
preceding the date of commencement of the relevant
qualifying examination, in which he/she appeared or as
the case may be first appeared.
(II) A candidate for admission to any course of study who is not
F
regarded as a local candidate under sub-regulation(!) above in
relation to any local area shall
(i) If he/she has studied in educational institutions in the
State for a period of not less than 7 consecutive academic
years ending with academic year in which he/she appeared
G or as the case may be first appeared for the relevant
qualifying examination be regarded as local candidate in
relation to;

(a) Such local area where he/she has studied for the
maximum period out of the said period of 7 years
H
N.T.R. UNI. OF HEAL TH SCIEN. v. G. BABU RAJENDRA PRASAD [S.B. SINHA, JJ789

Or A
(b) Where the period of his/her study in two or more
local areas are equal, such local area where he/she
has last studied in such equal periods

(ii) If during the whole or any part of seven consecutive academic B
years ending with academic year in which he/she appeared or as
the case may be first appeared for relevant qualifying
examination, he/she has :10t studied in the educational institution
in any local area, but he/she has resided in the State during the
whole of the said period of 7 years be regarded as a local
candidate in relation to C
(a) Such local area where he/she has resided for the maximum
period out of the said period of seven years.

Or

(b) Where the period of his/her residence in two or more D
local areas are equal, such local area where he/she has
resided last in such equal periods.

EXPLANATION : (for purpose of this sub-regulation)

(i) "Educational Institutions" means a University or any Educational E
Institution recognized by the State Government, a University or
any other competent authority.

(ii) "Relevant qualifying examination in relation to admission to
any course of study" means the examination, a pass in which is
the minimum educational qualification for admission to such p
course of study.
NOTE : The relevant qualifying examination for admission to Post-
Graduate courses is MBBS examination. The question whether
the candidate is a local candidate or not will be determined with
reference to his/her first appearance in the Part II of Final MBBS G
examination.

(iii) (a) In reckoning the consecutive ac::ademic years during which
a candidate has studied any period of interruption of his/her
study by reasons of his/her failure to pass any examination and
any period of his/her study in a statewide University or a H
•
790 SUPREME COURT REPORTS [2003] 2 S.C.R.

A statewide educational institution shall be disregarded.
(b) The status of candidates who passed MBBS from Siddhartha
Medical College will be decided basing on their study period
prior to their admission into MBBS course at Siddhartha Medical
College for arriving at the local and non-local status, since it is
B a statewide institution.
(iv) The question whether any candidate for admission to any course
of study has resided in any local area shall be determined with
reference to the places where the candidate actually resided and
not with reference to the residence of his/her parent or guardian.
c (D) While determining under sub-regulation (A) the number of seats
to be reserved in favour of lcical candidates, any fraction of seat
shall be counted as one, provided that there shall be one
unreserved seat.
(E) If a local candidate in respect of a local area is not available to
D . fill any seats reserved or allocated in favour of local candidate
in respect of that local area such seats shall be filled in as if it
had not been reserved.
(F) The applicant who claims to be a local candidate with reference
to sub-regulation 4(C) (J)(i) or 4(C)(II)(i) shall produce in the
E form of study certificate/certificates issued by the Head of the
Educational Institution/Institutions concerned indicating the details
of the year or years in which the candidate has studied in
educati_onal institution in such local area for a period of not less
than 417. consecutive academic years ending with the academic
year in which he/she appeared or as the case may be first appeared
.
F for the Part-II of Final MBBS examination.
Those who did not qualify as local candidate under sub-regulation
4(C)(l)(i) and 4(C)(Il)(i) but claim to qualify by virtue of
residence shall produce a certificate issued by an officer of the
Revenue Department not below the rank of Manda! Revenue
G Officer independent charge of sub-taluk/Mandal in the form
annexed to G.O.P. No.628 education dated 25.7.1974 appended
to application form with necessary modification.
. (G) The following categories are eligible to apply for admission to
the remaining 15% of un-reserved seats:
H
N.T.R. UNI. OF HEAL TH SCIEN. v. G. BABU RAJENDRA PRASAD [S.B. SINHA, JJ791

(i) All candidates defined under sub-regulation (C) of regulation-4 A
(ii) Candidates who have resided in the State for total period of ten
years excluding period of study outside the State or either of
those parents have resided in the State for a total period of ten
years excluding period of employment outside the State.

(iii) Candidates who are children of parents who are in the B
employment of this State or Central Government, Public Sector
Corporation, Local Bodies, Universities and other similar quasi-
Public Institutions in the State.

(iv) Candidates, who are spouses of those in employment of this
State or Central Government, Public Sector Corporations, Local C
Bodies, Universities and Educational Institutions recognized by
the Government or a University or other competent authority
and similar other qua~i Government Institutions within the State.

(v) Candidates, who are employed in the State Government
undertakings, Public Sector Corporation, Local Bodies, D
Universities and other similar quasi-Public Institutions within
the State.
(vi) Candidates who are spouses of the local candidates as per
regulation 4(C)."
E
The State of Andhra Pradesh enacted the A.P. Educational Institutions
(Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983. In
exercise of its rule making power conferred upon it thereunder, the State
Government also framed the A.P. Medical College (Admissions into Post
Graduate Medical Course) Rules, 1997. By reason ofG.0. Ms. No.260 dated
10.7.1997 reservation to the extent 15%, 6% and 25% of the total number of F
seats was notified in each group of Degree and Diploma Courses in favour
of Scheduled Castes, Scheduled Tribes and Backward Classes respectively, .
to the extent of 85% of the seats reserved in favour of the local candidates
in relation to the local areas in terms of the Presidential Order. So far as 15%
of the balance seats are concerned, the same were made unreserved i.e. seats G
for open category candidates. The University of Health Sciences, Andhra
Pradesh also made regulations for admission to Post Graduate Medical Courses
in the Medical College in University of Health Sciences for the academic
year 1997-98 in terms of the Presidential Order as also the 1997 Rules.

Pursuant to Presidential Order of 1974, the State of Andhra 'Pradesh H
792 SUPREME COURT REPORTS [2003] 2 S.C.R.

A was sub-divided into three local university areas, namely, (I) Osmania
University; (2) Andhra University and (3) Sri Venkateshwara University. All
these three university areas are situated in three different regions of the State
envisaged under the Presidential Order.

A bare perusal of the definition of local area read with Paragraphs 3,
B . 4 and 5 of the Presidential Order, as referred to herein before, it would be
evident that 85% of the seats are reserved for local candidates in relation to
local areas. So far as an university area is concerned, a local candidate in one
particular university area would be a non-local one in another. The criteria
for admission of a candidate in the super speciality courses in the university
C on the ground of being local or non-local is, therefore directly referable to
the university area and not the boundaries of the State of Andhra Pradesh.

It was not the case of the respondents that the Health University
. regulations framed by the State of Andhra Pradesh was violative of the
Presidential Order, 1974 or Andhra Pradesh Medical Colleges (Admission
D 'into PostGraduate Medical Courses) Rules, 1997. It is further not in dispute
that in terms of Rule 4 of the Andhra Pradesh Post Graduate Admission
Rules read with the Health Regulations; 85% of the seats in each local areas
are reserved for local candidates. It was not the contention of the respondents
. that admissions in the courses of studies had not been made on the basis of
E merit of the candidate in the entrance examination upon following the rules
·of reservations nor was it the contention of the respondents that the reservation
made by the State to the extent of 46% in favour of the reserved classes was
ultra vires Articles 15 and 16 of the Constitution of India. In the matter of
admission, the Health University had followed the procedure provided in
Annexure Ill of G.0.(P) No. 646 dated 10.7.1979 having regard to the fact
F that by reason of the Presidential Order, 1974 only 85% of the seats are
reserved in favour of the local candidates which are required to be confined
to the university area only. We, thus, do not find any legal infirmity in the
action of the appellants herein in directing that 15% reserved for candidates
of non-local area may be filled up only on merit.

G Article 371-D of the Constitution of India contains a special provision
· applicable to the State of Andhra Pradesh only. 54% of seats are required to
be filled up from open categories and 46% of seats are to be filled up from
the reserved category candidates in each of the three regions from the medical
colleges and engineering colleges. Having regard to the reservations made
H region-wide, indisputably 85% of seats are to be filled up from amongst local
-(
N.T.R. UNI. Of HEAL TH SCIEN. 1• G. BABU RAJENDRA PRASAD[S.B. SINHA, JJ79J

candidates whereas only 15% of seats are to be filled up from .amongst A
outside candidates.

Articles 15 and 16 of the Constitution of India provide for enabling
provisions. By reason thereof the State would be entitled to either adopt a
policy decision or make laws providing for reservations. How and in what
manner the reservations should be made is a matter of policy decision of the B
State. Such a policy decision normally would not be open to challenge·subject
to its passing the test of reasonableness as also the requirements of the
Presidential Order made in terms of Article 371-D of the Constitution of
India.

It is not in dispute that limited seats are available for admission in the C
super speciality courses. It may be true that normally the reservation has to
be made for the entire State but in terms of Article 371-D of the Constitution
oflndia reservation has to be made region-wise. The seats have been reserved
indisputably on total available seats in each discipline and those who come
within the zone of consideration are considered for admission from amongst D
the reserved category candidates. Once it is found that reservation has been
made for the reserved category candidates on the total number of seats available
in each course; the High Court must be held to have committed a manifest
error in issuing the impugned direction.

Having regard to the fact reservation has been provided to the extent E
of 46% of all the seats, the question of any further reservation i.e. for the
remaining 15% of the seats would not arise.

The High Court keeping in view the decision of this Court in Indra
Sawhney v. Union of India and Ors., (1992] Supp 3 SCC 215 was bound to
proceed on the basis that the reservation cannot exceed 50%. In the said case F
it was held :

"Just as every power must be exercised reasonably and fairly, the
power conferred by clause (4) of Article 16 should also be exercised
in a fair manner and within reasonable limits-and what is more
reasonable than to say that reservation under clause(4) shall not exceed G
50% of the appointments or posts, barring certain extraordinary
situations as explained hereinafter.

While 50% shall be the rule, it is necessary not to put out of H
794 SUPREME COURT REPORTS [2003] 2 S.C.R.

A consideration certain extraordinary situations inherent in the great
diversity of this country and the people. It might happen that in
farflung and remote areas the population inhabiting those areas might,
on account of their being out of the mainstream of national life and
in view of conditions peculiar to and characteristical to them, need
to be treated in a different way, some relaxation in this strict rule
B may become imperative. In doing so, extreme caution is to be exercised
and a special case made out."

Reservation being extreme form ofprotective measure or affirmative
action, it should be confined to minority of seats. Even though the
Constitution does not lay down any specific bar but the constitutional
c philosophy. being against proportional equality the principle of
balancing equality ordains reservation, of any manner, not to exceed
50%. (emphasis supplied)

ln R.K. Sabharwal v. State of Punjab, ['1995] 2-SCC 745, this Court
D observed:

"When the State Government after doing the necessary exercise makes
the reservation and provides the ·extent of percentage of posts to be
· reserved for the said Backward Class then the percentage has to be ·
followed strictly. The prescribed percentage cannot be varied or
E changed simply because some of the members of the Backward Class
have already been appointed/promoted against the general seats. As
mentioned above the roster point which is reserved for a Backward
Class has to be filled by way of appointment/promotion of the member
of the said class. No general category candidate can be appointed
against a slot in the roster which is reserved for the backward Class.
F The fact that considerable number of members of a Backward Class
have been appointed/promoted against general seats in the State
Services may be a relevant factor for the State Government to review
the question of continuing reservation for the said class but so Jong
as the instructions/rules providing certain percentage of reservations
for the Backward Classes are operative the same have to be followed.
G
Despite any number of appointees/promotees belonging to the
Backward Classes against the general category posts the given
percentage has to be provided in addition."

Reservation is aimed at securing equal and protective discrimination.
H Recently, the purpose of reservation although in a different context has been
. N.T.R. UNI. OF HEALTH SCJEN. v. G. BABU RAJENDRA PRASAD [S.B. SINHA, J.]795

- stated by this Court in A.I.I.MS. Students Union v. A.I.I.MS, [2002] l SCC
428]. It was observed:

"Reservation, as an exception, may be justified subject to discharging
A

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 B
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.
c
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 D
accelerate achieving the ultimate goal of excellence enabling the
National constantly rising to higher levels. In the era of globalisation,
where the nation as a whole has to compete with other ~ations of the
world so as to survive, excellence cannot be given an unreasonable
go by and certainly not compromised in its entirety. Fundamental
duties, though not enforceable by a writ of the Court, yet provide a E
valuable guide and aid to interpretation of Constitutional and legal
issues. In case of doubt or choice, people's wish as manifested through
Article 51-A can serve as a guide not only for resolving the issue but
also for constructing or moulding the relief to be given by the Courts."

.f In Marri Chandra Sekhar Rao v. Dean, Seth G.S. Medical College & F
Ors., [1990] 3 SCC 130, it was held:

"Equality must become a living reality for the large masses of the
people. 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. Existence of equality of opportunity depends not merely G
on the absence of disabilities but on presence of abilities. It is not
simply a matter of legal equality. De jure 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 H
l
796 SUPREME COURT REPORTS [2003] 2 S.C.R.

A environment, equal in specified areas. It is necessary to take into
account de facto inequalities which exist in the society and to take
affirmative action by way of giving preference and reservation to the
socially and economically disadvantaged persons or inflicting
handicaps on those more advantageously placed, in order to bring
about real equality."
B
The principle of fixing the percentage of reservation emanates from the
doctrine of reasonableness. In Balaji v. State of Mysore, [1963) Supp. I SCR
439 this Court speaking through Gajendragadkar, J. struck down the
Government Order impugned therein describing it as a fraud on the
C Constitution and the action of the executive was characterized as 'patently
and plainly outside the limits of the Constitutional authority conferred on the
State'.

In N.M Thomas v. State of Kera/a, AIR ( 1976) SC 490, it was held that
reservation exceeding 49% had been permitted on the ground that SCs were
D not castes in a real sense and Article 16(4) was not an exception. Krishna
Iyer, J. in Karmachari Sangh AIR (1981) SC 293, however, abandoned th1~
aforementioned theory wherein his Lordship held that he was prepared to
assume that they were castes and in any event Article 16(4) was an exception.
In the said judgment, the final address of Dr. Ambedkar to the Constituent
Assembly was dealt with in extenso.
E
Sri H.M. Seervai in his classic treatise on "Constitutional Law oflndia",
Fourth Edition at page 611 states:

"But this passage gives an incorrect impression of Dr. Ambedkar's
final address. He was not thinking of the SCs and STs or of the
F equality code as the following passage clearly shows:

I remember the days when politically minded Indians resented the
expression 'the people of India'. They preferred the expression "The
Indian nation". I am of the opinion that in believing that we are a
nation we are cherishing a greet delusion. How can people divided
G into several thousands of castes be a nation? The sooner we realize
that we are not as yet a nation in the social and phychological sense
of the word, the better for us. For, then only we shall realise the
necessity of becoming a nation and ser.iously think of ways and means
of realising .the goal. The realisation of his goal is going to be very
H difficult-far more difficult that it has been in the United States. The
N.T.R. UNI. OF HEALTH SCIEN. v. G. BABU RAJENDRA PRASAD [S.B. SINHA, J.J 797

United States has no caste problem. In India there are castes. The A
castes are anti-national. In the first place because they bring about
separation in social life. They are anti-national also because they
generate jealousy and antipathy between caste and caste. But we must
overcome all these difficulties if we wish to become a nation in
reality. For, fraternity can be a fact only when there is a nation.
Without fraternity, equality and liberty will be no deeper than coats B
of paint."

The learned author states:

A service which lacks an esprit de corps, that is, consciousness of and
pride in belonging to a particular service, lacks an element essential C
to an efficient and harmonius administration. To balance the claims
of these parties, in considering reservation quotas, requires critical
analysis and calm deleberation; anger at the treatment meted out to
classes to which one of the parties belongs does not help, for anger
has been rightly likened "to a hasty servant who runs away before he D
has heard half the message".

Further it was opined:

"It is necessary to remember that in litigation there are more parties
than one, that it is wrong to gratify the plaintiff to the detriment of E
the defendant, and that, while sympathy is a most commendable
quality, it never appears in a less attractive guise than when it is
I,
practiced at the expense of somebody else.

If past injustice done to members of SCs and STs because of the
accident of their birth calls for condemnation, so does injustice done F
to members of 'advanced classes' because of the accident of their
birth. It may be that members of 'advanced classes' may have to bear
for a time, as best as they can, the injustice done to them by reverse
discrimination, if a long standing historical wrong has to be righted.
But 40 years have gone by since our>constitution came into force;
and every year that passes increases the individual's sense of injustice G
and injury. It is submitted that Judges who have to balance the claims
of all the parties affected by any action under Article 16(4) ought to
reflect that if the injustice of the past are to be strongly denounced
now, then the future will denounce quite as strongly the· injustices
suffered by members of 'advanced classes' since 1950".
H
798 SUPREME COURT REPORTS [2003] 2 S.C.R.

A In Indra Sawhney (supra) it has been clearly held that the doctrine of
principles of reservations have to be applied having regard to the vacancy
position as existing in the entire area, the only exception ~-being the cases,
which would be falling under Article 16(4).

In K. Duraisamy and Anr. v. State ofT.N. and Ors., [2001) 2 SCC 538,
B this Court held:
"The mere use of the word 'reservation' per se does not have the
consequence of ipso facto applying the entire mechanism underlying
the constitutional concept of a protective reservation specially designed
for the advancement of any socially-and-educationally-backward
c classes of citizens or for the Scheduled Castes and Scheduled Tribes,
to enable them to enter and adequately represent in various fields.
The meaning, content and purport of the expression will necessarily
depend upon the purpose and object with which it is used."

D In the event, the ratio of the impugned judgement of the High Court is
given effect to having regard to the limited number of seats available by
providing reservation of an additional seat, principle of reservation to the
extent is 50% would be violated. Furthermore, it is not for the High Court
to say as to the efficacy or otherwise of the policy of the State as regard
providing for reservation for the reserved category candidates and in that
E view of the matter the High Court, in our opinion must be held to have
committed a manifest error in issu·ing the impugned directions, as a result
whereof percentage of reservation would exceed 46%. Such a direction by
the High Court is not contemplated in law.

The impugned direction of the High Court, therefore, cannot be
F sustained. It is set aside accordingly.
These appeals are allowed but in the facts and circumstances of the
case, there shall be no order as to costs.

N.J. Appeals allowed.