Holding

Reservation for OBC and EWS candidates in the AIQ seats for undergraduate and postgraduate medical and dental courses is constitutionally valid as it furthers substantive equality, and the Union Government may introduce such reservation without prior Court approval; the timing of the notice does not constitute an impermissible change of the rules of the game.

Summary

The petitioners challenged the Government's notification dated 29 July 2021 granting 27% reservation for OBC (non‑creamy layer) and 10% reservation for Economically Weaker Sections (EWS) in the All‑India Quota (AIQ) seats for undergraduate and postgraduate medical and dental courses under NEET. The Court examined whether such reservation is constitutionally valid under Articles 15(4), 15(5) and 15(1) of the Constitution, the scope of substantive equality, the executive's power to introduce reservation in AIQ seats, and whether the timing of the notice violated the principle of "changing the rules of the game". It held that Articles 15(4) and 15(5) are facets of substantive equality, that merit must be socially contextualised, and that the Union Government may introduce reservation in AIQ seats without prior Court permission. The notice was issued before the counselling process, so the rules were not altered after registration closed. Consequently, the OBC reservation in AIQ seats was upheld and the EWS reservation for the 2021‑22 academic year was allowed, with the challenge to the EWS criteria deferred for a later hearing.

Issues considered

Whether reservation for OBC (non‑creamy layer) in AIQ seats for UG and PG medical/dental courses is constitutionally valid under Articles 15(4), 15(5) and 15(1).
Whether Articles 15(4) and 15(5) are exceptions to Article 15(1) or part of the principle of substantive equality.
Whether the executive has the power to introduce reservation in AIQ seats without seeking prior permission of the Supreme Court.
Whether the notice introducing reservation after the registration deadline violates the principle of not changing the rules of the game.
Whether the criteria for identification of the EWS category under Article 15(6) are arbitrary or unconstitutional.
Whether the concept of merit can be limited to examination scores in the context of reservation.

Legislation cited

Central Educational Institutions (Reservation in Admission) Act, 2006s. Section 3
Constitution of India (as amended by the Constitution (One Hundred and Third Amendment) Act, 2019)s. Art.15(1), s. Art.15(4), s. Art.15(5), s. Art.15(6), s. Art.16(1), s. Art.16(4), s. Art.16(6)

Subjects

reservationOBCEWSAll‑India QuotaNEETmedical educationsubstantive equalitymeritConstitutional lawArticles 15 and 16executive powerrules of the game

Judgment

[2022] 11 S.C.R. 585 585

NEIL AURELIO NUNES & ORS. A
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 961 of 2021)
JANUARY 20, 2022 B
[DR. DHANANJAYA Y CHANDRACHUD AND
A. S. BOPANNA, JJ.]
Constitution of India – Arts. 15(1), 15(4), 15(5), 16(1) and
16(4) – Reservation – National Eligibility cum Entrance Test (NEET)
C
– Reservation for Other Backward Classes-OBC (non-creamy layer)
in the All-India Quota (AIQ) seats in NEET for undergraduate and
postgraduate medical courses – Held: Reservation for OBC
candidates in the AIQ seats for UG and PG medical and dental
courses is constitutionally valid – Articles 15(4) and 15 (5) are not
an exception to Article 15 (1), which itself sets out the principle of D
substantive equality (including the recognition of existing
inequalities) – Merit cannot be reduced to narrow definitions of
performance in an open competitive examination which only
provides formal equality of opportunity – Open competitive
examinations do not reflect the social, economic and cultural
E
advantage that accrues to certain classes and contributes to their
success in such examinations – High scores in an examination are
not a proxy for merit – Merit should be socially contextualized and
reconceptualized as an instrument that advances social goods like
equality – In such a context, reservation is not at odds with merit
but furthers its distributive consequences – Articles 15(4) and 15(5) F
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
G
backwardness with members of an identified group – The individual
difference may be a result of privilege, fortune, or circumstances
but it cannot be used to negate the role of reservation in remedying
the structural disadvantage that certain groups suffer – Challenge
to the constitutional validity of OBC reservation in AIQ seats
introduced through the notice dated 29 July 2021 is rejected. H
585
586 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Constitution of India – Article 14, 15(1), 15(4), 16(4) –
Reservation – Merit – Plea of the petitioners that at the level of PG
courses, a high degree of skill and expertise is required thus, such
opportunities must be available to the most meritorious and providing
any reservation for PG seats would be detrimental to national interest
– Held: This is not a novel argument – Special provisions (including
B
reservation) made for the benefit of any class are not an exception
to the general principle of equality – Special provisions are a method
to ameliorate the structural inequalities that exist in the society,
without which, true or factual equality will remain illusory – The
binary of merit and reservation has now become superfluous once
C Supreme Court has recognized the principle of substantive equality
as the mandate of Article 14 and as a facet of Articles 15 (1) and
16(1) – The narrow definition of merit (that is, decontextualised
individual achievement) hinders the realisation of substantive
equality.
D Constitution of India – Reservation – Scheme of All-India
Quota (AIQ) seats – Development of – Petitioners argued that
Supreme Court in Pradeep Jain case and the subsequent cases has
held that there shall be no reservation in the AIQ seats – Held:
Scheme of AIQ was devised to allot seats in State-run medical and
dental institutions in which students from across the country could
E compete – Observations in Pradeep Jain that the AIQ seats must be
filled by merit, must be read limited to merit vis-à-vis residence
reservation – Supreme Court in Pradeep Jain did not hold that
reservation in AIQ seats is impermissible – Evolution of the AIQ in
UG and PG medical and dental courses traced.
F Constitution of India – Reservation – All-India Quota (AIQ)
seats – Power of executive to introduce reservation in AIQ seats –
Petitioners argued that the Union Government should have filed an
application before Supreme Court before notifying reservations in
the AIQ since the AIQ scheme is a creation of Supreme Court –
Held: Argument is erroneous – The Union Government in Abhay
G
Nath case had made a submission of its intention to provide
reservations in the AIQ for the SC and ST candidates since until
then in view of the confusion on demarcation of the seat matrix,
there was no clarity on whether reservations could be provided in
the AIQ – Thus, in Abhay Nath it was clarified that reservations are
H permissible in the AIQ seats – Therefore, the order in Abhay Nath
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 587

was only clarificatory in view of the earlier observations in Buddhi A
Prakash Sharma – Interpreting the order to mean that the Union of
India sought the permission of Supreme Court before providing
reservation would amount to aiding an interpretation that would
foster judicial overreach – The Union Government was not required
to seek the permission of the Court before providing reservation in
B
AIQ seats – Providing reservation in the AIQ seats is a policy decision
of the Government.
Constitution of India – Reservation – All-India Quota (AIQ)
seats – Impugned notice providing reservation for OBC and EWS
categories in the AIQ was issued on 29 July 2021, after the
registration for the examination had closed on 18 April 2021 – C
Plea of the petitioners that the rules of the examination could have
only been changed before the last date for registration and as the
candidates registered for the exam having a particular seat matrix
in mind, the change in the seat matrix after registration would be
arbitrary – Held: Clause 11 of the information bulletin specifies D
that the reservation applicable to NEET-PG would be notified by
the counselling authority before the beginning of the counselling
process – Therefore, the candidates while applying for NEET-PG
are not provided any information on the distribution of seat matrix
– Such information is provided by the counselling authority only
before the counselling session is to begin – It thus cannot be argued E
that the rules of the game were set when the registration for the
examination closed.
Constitution of India – Reservation – The Constitution (One
Hundred and Third Amendment) Act 2019 – Articles 15(6) and 16(6)
– Criteria for the determination of the EWS for the ten percent F
reservation – Challenge to – Held: Challenge to the very criteria
for the determination of the EWS would not only require the matter
to be heard at length but also to hear all interested parties – However,
in view of the delay in the counselling process due to the pendency
of this petition, it is deemed necessary to allow the counselling
G
session to begin with the existing criteria for the identification of
the EWS category – Judicial propriety does not permit to pass an
interim order staying the criteria for determination of the EWS
category – It is a settled principle of law that in matters involving
challenge to the constitutionality of a legislation or a rule, the Court
must be wary to pass an interim order, unless the Court is convinced H
588 SUPREME COURT REPORTS [2022] 11 S.C.R.

A that the rules are prima facie arbitrary – However, at this stage,
without hearing all the interested parties at length on arguments, it
would be impermissible to form a prima facie opinion on the alleged
arbitrariness of the criteria – Further, in the midst of the pandemic,
any delay in the recruitment of doctors would impact the ability to
manage the pandemic – Hence, it is necessary to avoid any further
B
delays in the admission process and allow counselling to begin
immediately – The implementation of EWS reservation in AIQ seats
in NEET UG and PG seats for the academic year of 2021-2022 is
allowed – EWS category be identified in view of the criteria in O.M
No. 36039/1/2019 – Challenge to the validity of the criteria
C determined by the Pandey Committee for the identification of the
EWS category be listed for final hearing.
Directing the matter to be listed for final hearing on
challenge to the validity of the criteria determined by the Pandey
committee for the identification of the EWS category, the Court
D
HELD: 1.1 On its part, this Court initially subscribed to
the binary of merit and reservation. Articles 14, 15(1) and 16(1)
were thought to embody the general principle of formal equality.
Articles 15 (4) and 16 (4) were understood to be exceptions to
this general principle, advancing the cause of social justice. This
E Court sought to balance these competing imperatives. In such
an understanding, merit is equated to formal equality of
opportunity which has to be balanced against the concerns of
social justice through reservation. In MR Balaji v. State of Mysore
a Constitution Bench of this Court observed that Article 15 (4) is
an exception to Article 15 (1), which was introduced ¯because
F
the interests of the society at large would be served by promoting
advancements of the weaker elements in the society. However,
since Article 15 (4) (or reservation) was considered at odds with
the notion of formal equality under Article 15 (1), which is broadly
understood as complying with the principle of merit, this Court
G observed that there should be a cap on reservations, which it
specified generally should be 50 percent. This view was followed
by this Court in subsequent judgements where a special provision
made for the benefit of a class was seen as a deviation from the
principle of formal equality. However, the dominant view of this
Court was challenged by the Justice R Subba Rao in his dissent
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 589

in T. Devadasan v. Union of India, where the learned judge stated A
that Article 16 (4) is not an exception but rather a facet of Article
16 (1), which seeks to redress the historical disadvantage suffered
by certain communities. The view expressed by Justice Subba
Rao was adopted by this Court in State of Kerala v. NM Thomas,
which transformed the equality jurisprudence in India from that
B
of formal equality to substantive equality; thus, also changing our
understanding of reservations. The majority of the judges
accepted that special provisions (including reservation) made for
the benefit of any class are not an exception to the general
principle of equality. Special provisions are a method to
ameliorate the structural inequalities that exist in the society, C
without which, true or factual equality will remain illusory. Justice
KK Mathew in his concurring opinion observed that while
equality under Article 16 (1) is individual-centric (which was the
view of the majority – Justice Mathew and Justice Beg‘s majority
opinions, and Justice Khanna and Justice Gupta‘s dissents), the
D
manner in which it is to be achieved is through the identification
of groups that do not enjoy equal access to certain rights and
entitlements. Thus, the learned judge envisaged that equality of
individuals is to be achieved by addressing the structural barriers
faced by certain classes of citizens, which he called the “conditions
and circumstances [that] stand in the way of their equal access to E
the enjoyment of basic rights or claims”. Justice Krishna Iyer
and Justice Fazal Ali in their concurring opinions went a step
further to argue that the content of Article 16 (1) is not individual-
centric rather it aims to provide equality of opportunity to sections
that face structural barriers to their advancement. Justice Krishna
F
Iyer invoked Article 46 of the Constitution, which although
unenforceable, was employed for giving effect to Article 16 (1).
In his opinion both Articles 16 (1) and 16 (4) function to equalise
group inequalities albeit in different contexts. Justice Fazal Ali
in his concurring opinion noted that equality of opportunity under
Article 16 (1) entails the removal of barriers faced by certain G
classes of society. They cannot be denied the right to equality
and relegated to suffer backwardness only because they do not
meet certain artificial standards set up by institutions. [Paras 18-
21][619-D-G; 620-E-F; 621-F; 622-E-G; 623-G-H; 624-A-B-F]
H
590 SUPREME COURT REPORTS [2022] 11 S.C.R.

A T. Devadasan v. Union of India (1964) 4 SCR 680; CA
Rajendran v. Union of India (1968) 1 SCR 721; State
of Kerala v. NM Thomas (1976) 2 SCC 310 : 1976 (1)
SCR 906; Indira Sawhney v. Union of India 1992 Supp
(3) SCC 217 : [1992] 2 Suppl. SCR 454 – followed.
B MR Balaji v. State of Mysore [1963] Supp 1 SCR 439;
Dr Jaishri Laxmanrao Patil v. Chief Minister (2021) 8
SCC 1 – referred to.
1.2 The binary of merit and reservation has now become
superfluous once this Court has recognized the principle of
C
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
D 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
E
schooling and access to tutorials and coaching centres to prepare
for a competitive examination but also includes their social
networks and cultural capital (communication skills, accent, books
or academic accomplishments) that they inherit from their family.
The cultural capital ensures that a child is trained unconsciously
F 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
G perform well in open examination. They have to put in surplus
effort to compete with their peers from the forward communities.
On the other hand, social networks (based on community
linkages) become useful when individuals seek guidance and
advise on how to prepare for examination and advance in their
career even if their immediate family does not have the necessary
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NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 591

exposure. Thus, a combination of family habitus, community A
linkages and inherited skills work to the advantage of individuals
belonging to certain classes, which is then classified as merit
reproducing and reaffirming social hierarchies. [Para 24][627-B-
G; 628-A-B]
BK Pavithra v. Union of India (2019) 16 SCC 129: B
2019] 7 SCR 1086 – relied on.
1.3 This is not to say that performance in competitive
examination or admission in higher educational institutions does
not require a great degree of hard work and dedication but it is
necessary to understand that merit is not solely of one’s own C
making. The rhetoric surrounding merit obscures the way in which
family, schooling, fortune and a gift of talents that the society
currently values aids in one’s advancement. Thus, the
exclusionary standard of merit serves to denigrate the dignity of
those who face barriers in their advancement which are not of
their own making. But the idea of merit based on scores in an D
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. E
Standardized measures such as examination results are not the
most accurate assessment of the qualitative difference between
candidates. At the best, an examination can only reflect the current
competence of an individual but not the gamut of their potential,
capabilities or excellence, which are also shaped by lived
experiences, subsequent training and individual character. The F
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 G
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.
H
592 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Thus, the meaning of merit needs to be reconceptualized. For
instance, if a high-scoring candidate does not use their talents to
perform good actions, it would be difficult to call them meritorious
merely because they scored high marks. The propriety of actions
and dedication to public service should also be seen as markers
of merit, which cannot be assessed in a competitive examination.
B
Equally, fortitude and resilience required to uplift oneself from
conditions of deprivation is reflective of individual calibre. [Para
25][628-G; 629-A-C; 630-B-E]
Michael Sandel, Tyranny of Merit: What‘s become of
the Common Good (Penguin Boks), Ashwini
C
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.
D (Northampton, MA), 2013, Satish Deshpande, Pass,
Fail, Distinction: The Examination as a Social
Institution. Marjorie Sykes Memorial Lecture,
Regional Institute of Education, Ajmer, 3rd March,
2010. Published by the National Council for
E Educational Research and Training, New Delhi –
referred to.
1.4 It is important to clarify here that after the decision in
NM Thomas there is no constitutional basis to subscribe to the
binary of merit and reservation. If open examinations present
F equality of opportunity to candidates to compete, reservations
ensure that the opportunities are distributed in such a way that
backward classes are equally able to benefit from such
opportunities which typically evade them because of structural
barriers. This is the only manner in which merit can be a
democratizing force that equalizes inherited disadvantages and
G privileges. Otherwise claims of individual merit are nothing but
tools of obscuring inheritances that underlie achievements. If
merit is a social good that must be protected, the content of merit
must first be critically examine. Scores in an exam are not the
sole determinant of excellence or capability. Even if for the sake
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 593

of argument, it is assumed that scores do reflect excellence, it is A
not the only value that is considered as a social good. The
distributive consequences of merit must be looked at.
Accordingly, how merit is assessed should also encapsulate if it
mitigates or entrenches inequalities. An oppositional paradigm
of merit and reservation serves to entrench inequalities by
B
relegating reserved candidates to the sphere of incompetence,
and diminishing their capabilities. While examinations are a
necessary and convenient method to allocate educational
resources, they are not effective markers of merit. The way merit
is understood should not be limited to individual agency or ability
(which in any event is not solely of our own doing) but it should C
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
D
is valued in society. Based on the above discussion, it is difficult
to accept the narrow definition of merit (that is, decontextualised
individual achievement). Such a definition hinders the realisation
of substantive equality. [Paras 27 and 28][633-D-G; 634-F-G; 635-
A]
Amartya Sen, “Merit and Justice” in Arrow KJ, et al E
(eds), Meritocracy and Economic Inequality
(Princeton University Press 2000) – referred to.
1.5 Coming to the issue of whether reservation can be
permitted in PG courses, it is evident Article 15 (5) does not
make a distinction between UG and PG courses. The Constitution F
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 G
reservations in medical PG courses are impermissible. In Pradeep
Jain, this Court did not hold that reservation in PG courses is
altogether impermissible. It was urged on behalf of the petitioners
that for many individuals PG is the end of the road and therefore,
the PG courses should be equated with SS courses and no
H
594 SUPREME COURT REPORTS [2022] 11 S.C.R.

A reservation should be allowed in PG. It is difficult to accept this
argument when this Court has time and again permitted
reservation in PG courses. This argument merely seeks to create
an artificial distinction between the courses offered at the PG
level. Further, only certain medical fields do not have SS courses
and on the basis of that it cannot be deemed that reservation is
B
impermissible in PG as a whole. Crucially, the issue here is
whether after graduation, an individual is entitled to reservation
on the ground that they belong to a class that suffers from social
and educational backwardness. It cannot be said that the impact
of backwardness simply disappears because a candidate has a
C graduate qualification. Indeed, a graduate qualification may provide
certain social and economic mobility, but that by itself does not
create parity between forward classes and backward classes. In
any event, there cannot be an assertion of over-inclusion where
undeserving candidates are said to be benefitting from
D reservation because OBC candidates who fall in the creamy layer
are excluded from taking the benefit of reservation. There is no
prohibition in introducing reservation for socially and
educationally backward classes (or the OBCs) in PG courses.
[Para 29][635-B, D-E; 636-A-D]
Dr Preeti Srivastava v. State of Madhya Pradesh (1999)
E
7 SCC 120 : [1999] 1 Suppl. SCR 249; AIIMS Student
Union v. AIIMS 2002 (1) SCC 428 : [2001] 2 Suppl.
SCR 79; Saurabh Chaudri v. Union of India (2003) 11
SCC 146 : [2003] 5 Suppl. SCR 152 – referred to.
2.1 Having traced the evolution of the AIQ in UG and PG
F medical and dental courses, the following questions are answered:
whether this Court in Pradeep Jain held that the AIQ seats that
were to be filled by an open all- India examination should be free
of reservation for the socially and educationally backward classes,
and SC and ST as enabled by Article 15(4); and (ii) whether
G reservation in the AIQ can be provided only pursuant to a
direction of this Court. This Court in Pradeep Jain was deciding
on the constitutional validity of reservation based on domicile/
residence. Having held that residence based reservation is
constitutionally valid, the next question that this Court was tasked
with was adjudicating the quantum of residence-based reservation
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NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 595

that could be permitted. Referring to the decision of this Court A
in Jagdish Saran v. Union of India, it was held that there cannot
be wholesale reservation (that is, 100 percent reservation). It
was observed that a certain percentage of seats must be filled by
open merit by an all-India examination without reservation based
on residence. The Medical Education Review Committee had
B
suggested that 75 percent of the seats in a medical college shall
be reserved for residents of the State. This Court decided that it
would be fair to reserve 70 percent of the seats for residents of
the State. Therefore, 30 percent of the seats were to be filled
through an all-India Examination. This would mean that candidates
from all across the country could compete against the 30 percent C
seats available in State run medical colleges. In this context, this
Court had observed, “such reservation should in no event exceed
the outer limit of 70 per cent of the total number of open seats
after taking into account other kinds of reservations validly made”
(paragraph 21). The Bench further observed that at least 30
percent of the open seats shall be available for admission of D
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 E
on the basis of merit, cannot be interpreted to mean that there
shall be no reservations in the AIQ seats. Merit must be socially
contextualised and reconceptualized according to its distributive
consequences where it furthers substantive equality in terms of
Articles 15 (4) and 15 (5) of the Constitution. The reference to
merit in paragraph 21 of the judgment must be read with the F
previous observations made in the judgment. [Paras 44 and
45][650-E-G; 651-A-D]
Dr Pradeep Jain v. Union of India (1984) 3 SCC 654 :
[1984] 3 SCR 942 – clarified.
Jagdish Saran v. Union of India, 1980 AIR 820 : [1980] G
2 SCR 831 – referred to
2.2 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
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596 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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,
C economic, and educational development in different areas, factual
equality would not be attained. Therefore, the AIQ seats shall be
filed through an all-India examination purely on merit, must be
interpreted only with reference to the discussion made on
residence-based reservation and the necessity of an all-India
examination for admission to medical and dental courses.
D
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
E of the State or university from which they come and such
admissions shall be granted purely on merit on the basis of either
all-India entrance examination or entrance examination to be held
by the State’. The Bench thought it fit that admission through an
all-India entrance examination would further merit, enabling the
best minds all over the country to study medicine. This aspect
F
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
intention of this Court in Pradeep Jain in creating an AIQ was
G solely to provide candidates from across the country the
opportunity to study medicine in colleges in other parts of the
country as well, owing to the unequal number of medical colleges
(and opportunities) in different States. [Paras 46 and 47][651-F-
H; 652-A-D; 653-B-D]
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NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 597

Dinesh Kumar (I) v. Motilal Nehru Medical College (1985) 3 A
SCC 22 : [1985] 1 Suppl. SCR 41 – discussed.
2.3 Reference was made to reservation of backward classes
only for the limited purpose of determining the seat matrix. The
observation in paragraph 21 in Pradeep Jain on the calculation of
seat matrix was clarified in Dinesh Kumar (I). The Bench had B
clarified that after reservations (for the SC, ST and OBC provided
by the States) validly made, 30 percent of the remaining seats
would be reserved for AIQ. Therefore, according to the
clarification in Dinesh Kumar(I) on the demarcation of seats, the
first bifurcation should be between reserved and non-reserved
seats, and the seats remaining in the open category must be C
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, D
the total percentage of unreserved seats would inversely depend
on the percentage of reservation provided by the State. The State
of Tamil Nadu raised this objection in Dinesh Kumar (II). Pursuant
to this, it was held that the AIQ seats shall be determined without
excluding any reservation validly made. The seats were first
bifurcated to State quota and AIQ, and the vertical and horizontal E
reservations (for example, for persons with disabilities) were
accommodated within the State quota. When the judgment in
Dinesh Kumar (II) was pronounced, the Union Government had
not yet made any decision on providing reservation in AIQ seats.
It was subsequently in 2009 that the Union Government had F
taken a policy decision to provide reservation for the SC and ST
categories in the AIQ. It is important to note that in Jayakumar
and Rajeshwaran, the petitioners had sought a direction from this
Court for providing reservation in the AIQ seats. In Rajeshwaran,
this Court declined to ascertain if a person would be entitled to
reservation in the AIQ seats. It was observed that if reservations G
for SC and ST categories is to be provided in the AIQ seats, it
would cause difficulty in adjusting seats since the State and the
Central lists would differ. However, when the Union Government
submitted before this Court in Abhay Nath that it had taken the
decision to reserve seats in the AIQ, it was clarified that there H
598 SUPREME COURT REPORTS [2022] 11 S.C.R.

A was no impediment against the implementation of such
reservation. In Buddhi Prakash Sharma, there was a slight
deviation from the settled jurisprudence. This Court had held
that the total number of PG seats in AIQ would be 50 percent of
the total seats without any exclusion for reservation. The Bench
had interpreted the observation in Dinesh Kumar (II) that the
B
AIQ seats would be determined without excluding reservations
to mean that there would be no reservation in the AIQ. Therefore,
since, Pradeep Jain did not preclude the AIQ seats from
reservation, a three-Judge Bench in Abhay Nath clarified that
the 50 percent AIQ seats in PG medical and dental seats would
C be inclusive of reservation for SC and ST categories. [Paras 48-
51][653-E, G-H; 654-A-C, E-H; 655-A-B]
Dinesh Kumar (II) v. Motilal Nehru Medical College
(1986) 3 SCC 727 : [1986] 3 SCR 345; Union of India
v. Jayakumar (2008) 17 SCC 478; Union of India v. R.
D Rajeshwaran (2003) 9 SCC 294; Buddhi Prakash
Sharma v. Union of India (2005) 13 SCC 61 –
discussed.
3. In Abhay Nath, the Union Government had apprised this
Court of its decision to provide reservation for the SC and ST
E 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
F the ST, and 27 percent reservation for the OBC category in
Central Educational Institutions. A Constitution Bench in Ashoka
Kumar Thakur v. Union of India upheld the Constitutional validity
of 27 percent reservation for the OBC category provided under
the Act of 2006. Though the Act of 2006 would not be applicable
to the seats earmarked for AIQ in State-run institutions since it
G
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
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 599

the Centre. It would also lead to the anomaly highlighted in Dinesh A
Kumar (II) since the percentage of reservation provided by
different States differ, which would lead to an unequal percentage
of seats available in the AIQ in different States. This is also coupled
with the fact that the SC, ST and OBC lists are not uniform across
States. Thus, it is the Union Government’s prerogative to
B
introduce reservation in AIQ seats. [Para 53][655-F-H; 656-A-
D]
Ashoka Kumar Thakur v. Union of India (2008) 6 SCC
1: [2008] 4 SCR 1; Abhay Nath v. University of Delhi
(2009) 17 SCC 705 – referred to.
C
4. The impugned notice providing reservation for the OBC
and EWS categories in the AIQ seats was issued after the
registration had closed but before the exam was conducted.
Clause 11 of the information bulletin specifies that the reservation
applicable would be notified by the counselling authority before
the beginning of the counselling process, unlike the facts in Dr D
Prerit Sharma. The candidates while applying for NEET-PG are
not provided any information on the distribution of the seat matrix.
Such information is provided by the counselling authority only
before the counselling session is to begin. [Para 58][659-F-G;
660-B-C] E
Dr Prerit Sharma v. Dr Bilu Civil Appeal No. 3840 of
2020 – distinguished.
5. Conclusion- In view of the discussion above it is held
that the reservation for OBC candidates in the AIQ seats for UG
and PG medical and dental courses is constitutionally valid for F
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
G
that has been set out in Article 15 (1); (ii) Merit cannot be reduced
to narrow definitions of performance in an open competitive
examination which only provides formal equality of opportunity.
Competitive examinations assess basic current competency to
allocate educational resources but are not reflective of excellence,
capabilities and potential of an individual which are also shaped H
600 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C 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
D
role of reservation in remedying the structural disadvantage that
certain groups suffer; (v) The scheme of AIQ was devised to
allot seats in State-run medical and dental institutions in which
students from across the country could compete. The
observations in Pradeep Jain that the AIQ seats must be filled
E by merit, must be read limited to merit vis-à-vis residence
reservation. This Court in Pradeep Jain did not hold that
reservation in AIQ seats is impermissible; (vi) The Union of India
filed an application before this Court in Abhay Nath placing the
policy decision of the Government to provide reservation for the
SC and ST categories in the AIQ seats since until then in view of
F
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
G decision of the Government, which will be subject to the contours
of judicial review similar to every reservation policy; (vii) It was
clarified in Dinesh Kumar (II) that the total seats demarcated for
AIQ shall be determined without excluding reservation as was
earlier directed by Pradeep Jain and clarified in Dinesh Kumar
(I). However, this Court in Buddhi Prakash Sharma had
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 601

erroneously construed the clarification in Dinesh Kumar (II) to A
mean that there should be no reservation in AIQ seats. Therefore,
the order in Abhay Nath was only clarificatory in view of the
observations in Buddhi Prakash Sharma; and (viii) Clause 11 of
the information bulletin specifies that the reservation applicable
to NEET-PG would be notified by the counselling authority before
B
the beginning of the counselling process. Therefore, the
candidates while applying for NEET-PG are not provided any
information on the distribution of seat matrix. Such information
is provided by the counselling authority only before the
counselling session is to begin. It thus cannot be argued that the
rules of the game were set when the registration for the C
examination closed. The challenge to the constitutional validity
of OBC reservation in AIQ seats introduced through the notice
dated 29 July 2021 is rejected. [Para 59][660-D-H; 661-A-H; 662-
A-D]
Manjusree v. State of AP (2008) 3 SCC 512 : [2008] D
2 SCR 1025; Maharashtra State Road Transport
Corporation v. Rajendra Bhimrao Mandve (2011) 10
SCC 51; Umrao Singh v. Punjabi University (2005) 13
SCC 365 : [2005] 5 Suppl. SCR 530; Tej Prakash
Pathak v. Rajasthan High Court (2013) 4 SCC 540 –
distinguished. E

Saloni Kumari v Director General Health Services
WP(C) No 596/2015; Gulshan Prakash v. State of
Haryana (2010) 1 SCC 477: [2009] 16 SCR 1; Ashoka
Kumar Thakur v. Union of India (2007) 4 SCC 361:
2007 (4 ) SCR 493; State of U.P v. Pradip Tandon F
[1975] 2 SCR 761; Nookavarapu Kanakadurga Devi
v. Kakatiya Medical College AIR 1972 AP 83; Jagdish
Saran v. Union of India, 1980 AIR 820 : [1980] 2 SCR
831; Dr Sandeep Sadashivrao v. Union of India (2016)
2 SCC 328 : [2015] 14 SCR 328 – referred to. G
Indra Sawhney v. Union of India (AIR 1993 SC 477) :
[1992] 2 Suppl. SCR 454; Janhit Abhiyan v. Union of
India WP (C) 55/ 2019; Shantistar Builders v. Narayan
K. Totame (1990) 1 SCC 520; Debraj Samanta & Ors.
v. Medical Counselling Committee WP (C) No. 680 of H
602 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 2021; B K Pavithra v. Union of India (2019) 16 SCC
129 : [2019] 7 SCR 1086; Pradeep Jain v. Union of
India 1984 AIR 1420 : [1984] 3 SCR 942; Heart of
Millions v. Union of India, 2014 (14) SCC 496 –
referred to.
B Volume 7, Constituent Assembly of India Debates,
30 November 1948, available at https://
www.constitutionofindia.net/constitution_assembly
_debates/volume/7/19 48-11-30, Volume 9, Constituent
Assembly of India Debates, 23 August 1949, available
at https://www.constitutionofindia.net/constitution_
C assembly_debates/volume/9/949-08-23, 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);. The Bench noticed the judgment in State of
D 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.
Case Law Reference
E In the Judgment:
[1984] 3 SCR 942 clarified Para 2
[1985] 1 Suppl. SCR 41 discussed Para 2
[1986] 3 SCR 345 discussed Para 2
F
(2009) 17 SCC 705 referred to Para 4
(2003) 9 SCC 294 discussed Para 4(iii)
(2008) 17 SCC 478 discussed Para 4(iii)
[1999] 1 Suppl. SCR 249 referred to Para 4(v)
G
[2003] 5 Suppl. SCR 152 referred to Para 14(viii)
[2009] 16 SCR 1 referred to Para 14(viii)
[2007] 4 SCR 493 referred to Para 14(viii)
[1963] Supp 1 SCR 439 referred to Para 18
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 603

[1964] 4 SCR 680 followed Para 19 A
[1968] 1 SCR 721 followed Para 19
[1976] 1 SCR 906 followed Para 20
[1992] 2 Suppl. SCR 454 followed Para 23
(2021) 8 SCC 1 referred to Para 23 B
[2019] 7 SCR 1086 relied on Para 24
[2001] 2 Suppl. SCR 79 referred to Para 29
[1975] 2 SCR 761 referred to Para 31
(2005) 13 SCC 61 discussed Para 40 C

[1980] 2 SCR 831 referred to Para 45
[2008] 4 SCR 1 referred to Para 53
[2008] 2 SCR 1025 distinguished Para 55
D
[2005] 5 Suppl. SCR 530 distinguished Para 56
(2011) 10 SCC 51 distinguished Para 56
(2013) 4 SCC 540 distinguished Para 57
[2015] 14 SCR 328 referred to Para 57
E
In the Order:
[1992] 2 Suppl. SCR 454 referred to Para 8 (vi)
[2019] 7 SCR 1086 referred to Para 26(vii)
[1984] 3 SCR 942 referred to Para 27
F
[2014] 14 SCC 496 referred to Para 30
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
961 of 2021.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
G
With
Writ Petition (C) Nos. 967, 1002, 1021 and 1105 of 2021.
V. Krishnamurthy AAG, Arvind Datar, Maninder Singh, A.
Mariarputham, Sr. Advs., Subodh S. Patil, Vivek Singh, Ramesh Allanki,
Dr. Charu Mathur, Ms. Tanvi, Sanjay Kumar Dubey, Rahul Unnikrishnan, H
604 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Malak Bhatt, Gurmeet Singh Makker, Gaurav Sharma, Kirtman Singh,
Waize Ali Noor, Dhawal Mohan, Prateek Bhatia, Ms. Srirupa Nag, Taha
Yasin, Amrish Kumar, R. Nedumaran, Dr. Joseph Aristotle S., V. K.
Biju, Ms. Ria Sachthey, Chetanya Singh, Amlendu Kumar Akhilesh
Kumar Jha, Shaji George, Ms. Vijay Laxmi, Ms. Archana Pathak Dave,
Kumar Prashant, Ms. Vanya Gupta, Avnish Dave, Parmod Kumar
B
Vishnoi, Ms. Himanshi Shakya, Devashish Bharuka, Mithu Jain, Shashank
Ratnoo, Vikram Hegde, Shantanu Lakhotia, Advs. for the appearing
parties.
The following Judgment and Order of the Court were passed :
C JUDGMENT
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into the following sections to
facilitate analysis:
D A. Factual Background....................................................3
B. Pendency of the Writ Petition Instituted by
Saloni Kumari............................................................10
C. Submissions of Counsel...........................................11

E 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
F
D.4 Changing the Rules of the Game....................61
E. Conclusion..............................................................66

G A. Factual Background
1. These writ petitions challenge the reservation for Other
Backward Classes1 and the Economically Weaker Section2 in the All-

1
“OBC”
H 2
“EWS”
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 605
[DR. DHANANJAYA Y CHANDRACHUD, J.]

India Quota 3 seats in the National Eligibility cum Entrance Test A
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
B
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. C
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 D
AIQ seats was devised by this Court in 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– E
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 F
empower the State to make special provisions (including reservation)
for the advancement of socially and educationally backward classes (or

3
“AIQ”
4
“NEET-PG”
G
5
“UG”
6
“PG”
7
“MH&FW”
8
(1984) 3 SCC 654
9
(1985) 3 SCC 22
10
(1986) 3 SCC 727 H
606 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B 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.”
C
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 200614, which came into effect on 3
January 2007, was enacted to provide for reservation for students
D 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.
E 5. The State of Tamil Nadu granted 50 percent reservation to
OBCs in State-run 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
F filled according to the provisions of the Act of 1993. A writ petition16
was instituted before this Court by Dravida Munnetra Kazhagam17
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:

G 11
(2009) 17 SCC 705
12
“SC”
13
“ST”
14
“Act of 2006”
15
“Act of 1993”
16
WP No 507 of 2020
17
H “DMK”
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 607
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“The learned senior counsel for the petitioners seek permission to A
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.” B
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 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 C
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
D
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. E
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 F
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 G
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.
18
WP No 8326 of 2020
19
Saloni Kumari v Director General Health Services WP(C) No 596/2015. H
608 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B is not similar to that in Saloni Kumari’s case, the High Court can
proceed to adjudicate the writ 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.”
C
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
D 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
E 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.
F 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., either State-specific
G 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
20
SLP (C) No 9286 of 2020
H 21
Contempt Petition No 181 of 2021
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 609
[DR. DHANANJAYA Y CHANDRACHUD, J.]

reservation in AIQ seats. In the meanwhile, a notice dated 29 July 2021 A
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:
B
“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 C
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: D
SC-15%
ST-7.5%
OBC (Non-creamy layer) as per the Central OBC list-27%
EWS- as per the Central Government Norms-10% E

PwD-5% Horizontal Reservation as per NMC Norms”
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 F
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 G
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
H
610 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C 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 PG seats. The constitutionality of the
criteria used for the identification of the EWS category is yet to be
D 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.
E
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
F 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
G the validity of the notification dated 29 July 2021.
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
H the following submissions:
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 611
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(i) In Pradeep Jain v. Union of India22, this Court raised A
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;
B
(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 C
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 D
light of the judgments in Pradeep Jain (supra), Union of
India v. R. Rajeshwaran 25 and Union of India v.
Jayakumar26;
(iv) The AIQ scheme was conceived by this Court in Pradeep
Jain (supra) and developed in Dinesh Kumar (I) (supra) E
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 F
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;
G
22
(1984) 3 SCC 654
23
“SS”
24
(2009) 17 SCC 705
25
(2003) 9 SCC 294
26
(2008) 17 SCC 478
27
(1999) 7 SCC 120 H
612 SUPREME COURT REPORTS [2022] 11 S.C.R.

A (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
B
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
C 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 of registration. The rules of the
game were set when the registration closed; and
D
(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,
E 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
F 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
G 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:
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 613
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(a) Release of Information Brochure: 23 February 2021 A
(b) Commencement of Registration Process: 23
February 2021
(c) Last date of Registration: 15 March 2021
(d) Scheduled examination date: 18 April 2021 B
(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
C
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
D
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 E
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 F
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; G
(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; H
614 SUPREME COURT REPORTS [2022] 11 S.C.R.

A (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;
B (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
C (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 India 28;
Gulshan Prakash v. State of Haryana29) have clarified
D 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
E 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 institutions, aided
F
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
G 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
28
(2003) 11 SCC 146
29
(2010) 1 SCC 477
H 30
(2007) 4 SCC 361
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 615
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Nadu Backward Classes, Scheduled Castes and Scheduled A
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
B
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 C
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); D

(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 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 E
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 F
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 G
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;
H
616 SUPREME COURT REPORTS [2022] 11 S.C.R.

A (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
B
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;
(viii) Central medical institutions such as AIIMS and PGI hold
C 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
D 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
E 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
F
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.
G
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
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 617
[DR. DHANANJAYA Y CHANDRACHUD, J.]

has been incorporated as Article 16 of the Constitution, some members A
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
B
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 C
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
D
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 E
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 F
backward classes, classes who are really backward, should be
given scope in the State services; for it 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.”
G
However, many members also recognized that merit cannot be
separated from the function of the existing inequalities in society. They
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 H
618 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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:
B “…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
C 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
D 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
E 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
F 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:
“…Much has been made of merit in this case; but equal merit
pre-supposes equal opportunity, and I think it goes without saying
G that the toiling masses are denied all those opportunities which a
few literate people living in big cities enjoy. To ask the people

32
Volume 9, Constituent Assembly of India Debates, 23 August 1949, available at
https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-
H 08-23
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 619
[DR. DHANANJAYA Y CHANDRACHUD, J.]

from the villages to compete with those city people is asking a 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.
B
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 C
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 D
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 E
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 society at large would F
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 G
generally should be 50 percent.36 This Court stated:

33
Ibid
34
1963 Supp (1) SCR 439
35
Ibid, paragraph 31.
36
Ibid, paragraph 34. H
620 SUPREME COURT REPORTS [2022] 11 S.C.R.

A “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
B
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
C 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
D 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
E 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 rather a facet of Article
16 (1), which seeks to redress the historical disadvantage suffered by
F 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
G
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

37
T. Devadasan v. Union of India (1964) 4 SCR 680; CA Rajendran v. Union of India
H (1968) 1 SCR 721
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 621
[DR. DHANANJAYA Y CHANDRACHUD, J.]

practical content was given to it. Its strict enforcement brings A
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
B
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 C
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
D
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 E
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 F
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:
“44. Our Constitution aims at equality of status and opportunity
for all citizens including those who are socially, economically and G
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
38
(1976) 2 SCC 310 H
622 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C 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
D
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
E 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,
F 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 identification of groups that do not enjoy equal access to
G 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

H 39
Ibid, paragraph 52.
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 623
[DR. DHANANJAYA Y CHANDRACHUD, J.]

account of the differing conditions and circumstances of a class A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
624 SUPREME COURT REPORTS [2022] 11 S.C.R.

A claims”. Justice Krishna Iyer and Justice Fazal Ali in their concurring
opinions went a step further to argue that the content of Article 16 (1) is
not 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
B
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
C 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
D 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,
E 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
F 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
G 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
H incident of Article 14, Article 14 being the genus is of universal
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 625
[DR. DHANANJAYA Y CHANDRACHUD, J.]

application whereas Article 16 is the species and seeks to obtain A
equality of opportunity in the services under the State. The theory
of reasonable classification is implicit and inherent in the concept
of equality 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
B
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 C
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
D
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 E
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
F
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 G
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
H
626 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C 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
should be made by the Court, to resolve any apparent inconsistency.
D 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.”
E 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
F 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.
G 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
H are not an exception to the principle of equality was re-affirmed by a
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 627
[DR. DHANANJAYA Y CHANDRACHUD, J.]

nine-Judge Bench in Indira Sawhney v. Union of India40. These A
observations were made in the context of Articles 16 (1) and 16(4). In
Dr Jaishri Laxmanrao Patil v. Chief Minister 41, this Court has
observed that the principles applied for interpreting 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
B
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 C
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 D
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 E
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 F
skills required to perform well in open examination. They have to put in
surplus effort to 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
G
40
1992 Supp (3) SCC 217
41
(2021) 8 SCC 1
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).
43
Ibid H
628 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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)
B
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
C 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,
D 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.]
E
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
F the first two criteria will perpetuate the structural inequalities
existing in society.”
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
G 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

44
(2019) 16 SCC 129
45
Michael Sandel, Tyranny of Merit: What’s become of the Common Good (Penguin
H Boks)
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 629
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Thus, the exclusionary standard of merit serves to denigrate the dignity A
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
B
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: C
“…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, D
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 E
performance in it serves as an index – an indicator – of something
else namely her potential to be a good civil servant.
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. F
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 G
required (so to speak) to be traumatic bloodbaths. Anything less would

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 H
630 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B 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
C 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
D 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 assessed in a
E 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:

F “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
G calls for a sense of social commitment and dedication to the cause

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
H Ibid
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 631
[DR. DHANANJAYA Y CHANDRACHUD, J.]

of the poor. We agree with Krishna Iyer, J., when he says A
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, B
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.” C

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 D
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 E
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:
“13. We may now proceed to consider what are the circumstances F
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 G
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
H
632 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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
H which large masses of people suffer in the country. Equality in
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 633
[DR. DHANANJAYA Y CHANDRACHUD, J.]

law must produce real equality; de jure equality must ultimately A
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
B
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 C
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
D
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 E
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. F
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 G
at the distributive consequences of 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 H
634 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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.
B …..
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)
C 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
D
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
E ¯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
F 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) but it should be
envisioned as a social good that advances equality because that is the
G 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

49
Amartya Sen, ‘Merit and Justice’ in Arrow KJ, et al (eds), Meritocracy and Economic
H Inequality (Princeton University Press 2000).
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 635
[DR. DHANANJAYA Y CHANDRACHUD, J.]

merit cannot be devoid of what we value in society. Based on the above A
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 B
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 C
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.”
D
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 E
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 was
concerned with the question whether it is permissible to prescribe a
lower minimum percentage of qualifying marks for reserved category F
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 G
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
50
2002 (1) SCC 428
51
2003 (11) SCC 146
52
Ibid, paragraph 67. H
636 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C a candidate has a graduate qualification. Indeed, a graduate qualification
may provide certain social and economic mobility, but that by itself does
not create parity between forward classes and backward classes. In
any event, there cannot be an assertion of over-inclusion where
undeserving candidates are said to be benefitting from reservation
because OBC candidates who fall in the creamy layer are excluded
D
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
E 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.

F 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 Tandon 53 and
Nookavarapu Kanakadurga Devi v. Kakatiya Medical College54,
where reservation for the people of the hills in Uttarakhand and Telangana
G 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

53
(1975) 2 SCR 761
54
H AIR 1972 AP 83
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 637
[DR. DHANANJAYA Y CHANDRACHUD, J.]

action programme based on residence or domicile is not arbitrary and A
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 States on comparison to others are backward,
B
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 C
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. D
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, E
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 F
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: G
“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 H
638 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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.”
33. This Court then determined the quantum of reservation based
B 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
C 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
D 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
E 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
F 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
G 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
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 639
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Medical Education Review Committee has suggested that the outer A
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
B
any reduction or attenuation which may be made by the Indian
Medical Council which 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 C
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
D
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 E
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. Of course, we need not
add that even where reservation on the basis of residence
F
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) G

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.
H
640 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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 all-India basis and
there should be no restriction regarding domicile in the State/Union
B 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 post-graduate
colleges and special professional colleges is concerned, it should
C be entirely on the basis of all-India merit subject to constitutional
reservations in favour of Scheduled Castes and Scheduled Tribes.”
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
D 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
E 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,
F 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
G 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 post-graduate course.”
H (emphasis supplied)
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 641
[DR. DHANANJAYA Y CHANDRACHUD, J.]

The observations were to guide both medical and dental courses A
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 B
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:
“It would be wholly unjust to grant admissions to students assessing
their relative merits with reference to the marks obtained by them, C
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.” D

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 E
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 F
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. G
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 H
642 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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 non-reserved categories. According to our
B
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.”
37. Pursuant to the directions given by the Bench in Dinesh
C 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
D 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
E 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
F 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
G AIQ (as per the revised scheme of the Central Government), without
taking into account any reservation validly made. For PG, it 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:

55
H 1986 (3) SCC 727
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 643
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“5. […] There can be no doubt that if in each State, 30 per cent of A
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
B
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 C
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 D
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 E
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 F
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 G
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 H
644 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B seats available after 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
C 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
D 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
E 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:
F “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
G remaining 75 seats 60 seats will be filled by the State Government
as unreserved and 15 seats will be earmarked for the all-India
quota.
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
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 645
[DR. DHANANJAYA Y CHANDRACHUD, J.]

think, it would be appropriate to travel outside the said provisions A
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
B
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 all-India basis takes
note of reservations and hence the High Court need not have C
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 D
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 E
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 F
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.
40. In Buddhi Prakash Sharma v. Union of India56, the writ G
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

56
(2005) 13 SCC 61
57
“DGHS” H
646 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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 all-India quota
of seats was 25%, the number of postgraduate seats was worked
C
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
D 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
E 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
F
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
G concerned. The counselling will commence on the dates already
announced as we have no doubt that entire information about
availability of the seats would be furnished by all concerned to
DGHS.”
(emphasis supplied)
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 647
[DR. DHANANJAYA Y CHANDRACHUD, J.]

41. In Jayakumar (supra), an appeal was filed before this Court A
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
B
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
C
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 D
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 E
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 F
up by the various colleges in India, 50% of the seats shall be
admitted on the basis 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 G
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

58
“PIL” H
648 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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,
C 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
D 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
E 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
F 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 all-India basis would be worked out on the
basis of 50% of the total number of seats without any exclusion.
G 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
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 649
[DR. DHANANJAYA Y CHANDRACHUD, J.]

percentage to reservation out of the 50% seats left for them to be A
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 India has decided to provide 22.5% reservation
for SC/ST candidates in all-India quota from the academic year
B
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 C
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) D

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 E
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 F
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 G
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
59
(2010) 1 SCC 477 H
650 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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. 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
B
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
C 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
D 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
E constitutional validity of reservation based on domicile/residence. Having
held that residence-based reservation is constitutionally valid, the next
question that this Court was tasked with was adjudicating the quantum
of residence-based reservation 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
F 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
G 70 percent of the seats for residents of the State. Therefore, 30 percent
of the seats were to be filled through an all-India Examination. This
would mean that candidates from all across the country could compete
against the 30 percent seats available in State-run medical colleges. In

60
H 1980 AIR 820
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 651
[DR. DHANANJAYA Y CHANDRACHUD, J.]

this context, this Court had observed, “such reservation should in no A
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
B
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 C
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
D
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 E
in admissions be made for them so as to give them precedence
over those who do not possess “domicile” or residential qualification
within the State, irrespective of merit.”
(emphasis supplied)
F
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: G
(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 H
652 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C available for admission of students on all-India basis irrespective
of the State or university from which they come and such admissions
shall be granted purely on merit on the basis of either all-India
entrance examination or entrance examination to be held by the
State’. The Bench thought it fit that admission through an all-India
entrance examination would further merit, enabling the best minds all
D
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
E 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
F 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
G 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
H people by wholesale sacrifice of talent at the threshold. Nor can
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 653
[DR. DHANANJAYA Y CHANDRACHUD, J.]

the very best be rejected from admission because that will be a 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
B
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 C
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 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 D
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 E
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:

F

G
(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 non-reserved seats, and the seats remaining in the open
category must be bifurcated into State Quota and AIQ. It was thus, a
H
654 SUPREME COURT REPORTS [2022] 11 S.C.R.

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
B
objection in Dinesh 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
C seat matrix is graphically represented below:

D

(Figure 2)
50. When the judgment in Dinesh Kumar (II) (supra)was
E 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
F 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
G 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.
51. In Buddhi Prakash Sharma (supra), there was a slight
deviation from the settled jurisprudence. This Court had held that the
H total number of PG seats in AIQ would be 50 percent of the total seats
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 655
[DR. DHANANJAYA Y CHANDRACHUD, J.]

without any exclusion for reservation. The Bench had interpreted the A
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 three-Judge Bench in Abhay Nath (supra) clarified that the 50 percent
B
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 C
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 D
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 E
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 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 F
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 G
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
H
656 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C seats available in the AIQ in different States. This is also coupled with
the fact that the SC, ST and OBC lists are not uniform across States.
Thus, it is the Union Government’s prerogative to introduce reservation
in AIQ seats.
D.4 Changing the Rules of the Game
D 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
E 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
F 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
G 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
61
H (2008) 6 SCC 1
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 657
[DR. DHANANJAYA Y CHANDRACHUD, J.]

a separate handbook is released by the counselling authority. The A
candidates would possess no knowledge of the seat matrix at the time of
registration.
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 B
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 C
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 twenty-five marks, and prescribed minimum category marks
for the written examination. The exam was held on 30 January 2005. D
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 E
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. F
Candidates whose names were featured in the first select list but were
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 G
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

62
(2008) 3 SCC 512 H
658 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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.
B 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
C 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
D process for selection had started. In Tej Prakash Pathak v. Rajasthan
High Court65, the 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
E 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
F 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
G
63
(2011) 10 SCC 51
64
(2005) 13 SCC 365
65
(2013) 4 SCC 540
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
H appoint all candidates who had secured the minimum percentage of marks.
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 659
[DR. DHANANJAYA Y CHANDRACHUD, J.]

in C. Channabasavaih v. State of Mysore [AIR 1965 SC 1293], A
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
B
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 C
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 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 D
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 E
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. F
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 G
‘changing the rules of the game midway’ referred to changes
in the selection criteria or the procedure for selection. Those

67
Civil Appeal No. 3840 of 2020
68
(2016) 2 SCC 328 H
660 SUPREME COURT REPORTS [2022] 11 S.C.R.

A cases are distinguishable from the case before us since the
impugned notice did not alter the selection criteria;
(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
B (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
C 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
D 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,
E 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
F provides formal equality of opportunity. Competitive
examinations assess basic current competency to allocate
educational resources but are not reflective of excellence,
capabilities and potential of an individual which are also
shaped by lived experiences, subsequent training and
G 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.
H Merit should be socially contextualized and reconceptualized
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 661
[DR. DHANANJAYA Y CHANDRACHUD, J.]

as an instrument that advances social goods like equality A
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. B
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, C
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 D
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 reservation.
This Court in Pradeep Jain (supra) did not hold that
reservation in AIQ seats is impermissible; E
(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 F
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 G
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, H
662 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
(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
C the distribution of seat matrix. Such information is provided
by the counselling authority only before the counselling
session is to begin. It thus cannot be argued that the rules
of the game were set when the registration for the
examination closed.
D 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
E disposed of.

ORDER
This order has been divided into the following sections to facilitate
analysis:
F
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
G
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 H. Analysis...................................................................33
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 663
[DR. DHANANJAYA Y CHANDRACHUD, J.]

A. Genesis of the Controversy A
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 B
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 C
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- D
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 E
reservation (non-creamy 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: F
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/
G
1
“OBC”
2
“EWS”
3
“AIQ”
4
“NEET-PG”
5
“MoHFW”
6
“UG” H
664 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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%
B
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”
C
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
D 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
E other indicators of economic disadvantage”
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
F 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:
G
(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
H 7
“OM”
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 665
[DR. DHANANJAYA Y CHANDRACHUD, J.]

28.12.1961), according to which scientific and technical posts for A
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 B
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 C

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, D
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; E
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 F
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 G
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.”
5. The petitioners are doctors who appeared for the NEET-PG
2021 examination. The petitioners filed a writ petition on 24 August 2021 H
666 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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 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
C 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,
D 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:

E “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 them in this order so that the
F 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
G 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
H record of these proceedings;
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 667
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(iii) Whether the EWS category is over inclusive; A
(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 B
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; C
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 D
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 E
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
F
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: G
(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; H
668 SUPREME COURT REPORTS [2022] 11 S.C.R.

A (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
B 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
C 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
D 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
E 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
F
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:

G (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
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 669
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Government had set up the Major Sinho Commission in 2005 A
for 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 B
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 C
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 D
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’ E
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 F
districts in a State), it is sufficient if the criteria is based on
‘some material’. There is no need to prescribe 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 G
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 H
670 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B 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 five-judge Bench in Janhit Abhiyan v. Union of India9,
which is adjudicating upon the constitutional validity of the
C Constitution (One Hundred and Third Constitution
Amendment) Act 2019.
D. Major Sinho Commission Report
9. At this stage, a reference must be made to the Major Sinho
D 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
E 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:

F 8
AIR 1993 SC 477
9
WP (C) 55/2019
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
G 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
H reservation to any class.”
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 671
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(a) Monthly Per Capita Expenditure; A
11
(b) Below Poverty Line Category;
(c) Occupational Pattern and Backwardness;
(d) Educational Backwardness;
(e) Status of Health and Nutrition; and B
(f) Housing Conditions
10. Analysing the above parameters across categories, the
Commission arrived at the following conclusions:
(i) A part of the general category formed a class of poor along
with poor of other social groups. Poor households resulted C
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 D
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 E
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 F
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, G
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
11
“BPL” H
672 SUPREME COURT REPORTS [2022] 11 S.C.R.

A would not be effective to ensure intended benefits to EWS.
The percentage of BPL among the general category was
less compared to the backward 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-
B
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
C
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.
D 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.
E 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,
F
b) To examine various approaches so far followed in the country
for determining economically weaker sections, and
c) Recommend criteria that may be adopted for identifying EWS
category in future.”
G 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

12
“Pandey Committee”
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 673
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Pandey Committee including its recommendation that the new criteria A
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. B
The Pandey Committee’s short responses to the issues raised by this
Court are given in the table below13:

C

D

E

F

G

13
Internal page number 29 of the Report H
674 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C 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.”
D 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 category. Further, it noted that despite having a
similar threshold of Rs 8 lakhs, the criteria applied for the determination of
E 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

F

G

H 14
Internal page number 44 of the Report
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 675
[DR. DHANANJAYA Y CHANDRACHUD, J.]

The Pandey Committee also submitted that if adequate investments A
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 B
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 C
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 D
lakh, interest on education loans, National Pension Scheme
contributions, medical insurance, medical expenditure on 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 E
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. F
….
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 G
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. H
676 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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
C 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
D 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 administrative difficulty in implementation. The Pandey
Committee concluded thus:
“3.3.2.5 In the present context of establishing a uniform income
E 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
F
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
G
nor desirable.”
18. The Pandey Committee submitted that the Rs 8 lakhs cut-off
is not over-inclusive because data shows that the majority of the
candidates fall within the lower income brackets of below Rs 5 lakhs.

H 15
Para 3.3.1.34 at internal page 44 of the Report.
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 677
[DR. DHANANJAYA Y CHANDRACHUD, J.]

The Pandey Committee relied on the data on household income A
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 B
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, C
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 D
of INR 8 lakh per annum performs well based on evidence and
should be kept unchanged for identifying EWS.”
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 E
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 F
<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. G
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.”
H
678 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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.
B
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
C areas measured and calculated for obtaining certificates from the
designated authority. The Pandey 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:
D “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
E 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.”

F 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
G be caused if it is implemented in the present year as well. The relevant
observations of the Pandey Committee are reproduced below:
“4.19….
…..
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 679
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(iv) The Committee deliberated upon the vexed question as to A
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
B
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 C
and advanced stage. The existing system which is going on since
2019, if disturbed at the end or fag-end of the 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 D
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. E
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, F
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 G
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.”
H
680 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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.
B 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
C by the notice dated 29 July 2021, including the 27 percent 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
D
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
E
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
F 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
G 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
H category of OBC/BC/MBC is used to identify EWS.
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 681
[DR. DHANANJAYA Y CHANDRACHUD, J.]

The OBC category suffer from both social and A
economic backwardness unlike the unreserved
category. The criteria for exclusion cannot be used
as the criteria for inclusion;
(b) The prescription of the Rs 8 lakhs income limit would
amount to treating unequal’s equally. For example, B
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 C
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 D
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 E
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 F
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 G
family, and high cost of living in certain locations;
(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’; H
682 SUPREME COURT REPORTS [2022] 11 S.C.R.

A (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
B 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
C 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
D 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
E 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
F
data’ on actual outcomes does not 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-
G 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
H and dry lands; and
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 683
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(g) The Pandey committee has determined the criteria A
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 B
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 C
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 D
general category and the reserved categories. According
to the Rajan committee report submitted in Tamil Nadu,
only 2.3 percent of the open category seats are occupied
by the forward community. By improperly identifying the
EWS, the injustice suffered by the forward community is E
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; F
and
(viii) In the case of Shantistar Builders v. Narayan K.
Totame16, a three-judge 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 G
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.

16
(1990) 1 SCC 520 H
684 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B 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;
C (ii) The EWS category is identified by the income limit, and
other indicators are used only to exempt a class falling within
the income criteria. Indicators such as housing, literacy,
education, and health have been ignored while identifying
the EWS category;

D (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’;
E
(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
F
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
G 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
H had begun since the reservation through the impugned notice
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 685
[DR. DHANANJAYA Y CHANDRACHUD, J.]

issued on 29 July 2021 was introduced much prior to the A
date on which the exams were conducted and before the
commencement of the counselling process. The NEET PG
examination schedule is as under:
(a) Release of Information Brochure: 23 February 2021
(b) Commencement of Registration Process: 23 B
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 C
(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 D
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 E
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 F
comply with the order of this court dated 11 August 2021 in
Debraj Samanta & Ors. v. Medical Counselling
Committee 17;
(iii) The EWS reservation is already in place and is now being
extended to AIQ seats for UG/PG admission in medical G
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 H
686 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B 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
C 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;
D (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.
E
Thus, the implementation of the constitutional amendment
through the notice dated 29 July 2021 cannot be questioned
in the present writ petitions;
(vii) The criteria for reservation for admission in the AIQ seats
is a question of policy and is within the powers of Union
F 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,
G 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;

18
WP (C) No. 55 of 2019
H 19
(2019) 16 SCC 129.
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 687
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(viii) It is always possible to come up with an alternative criteria. A
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;
B
(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 C
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 D
category. Even then the criteria that applies to the OBC
creamy layer is significantly 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 E
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 F
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; G
(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 H
688 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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;
B (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 year. Merely one
year of windfall income earned by a household can push
them out of the EWS category;
C
(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
D 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
E 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
F 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.
G 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.
H
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 689
[DR. DHANANJAYA Y CHANDRACHUD, J.]

H. Analysis A
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 B
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 C
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 D
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 E
stay on the implementation of reservation for the former in view of the
pending counselling 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 F
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 G
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
20
1984 AIR 1420
21
Paragraph 23.
22
WP (C) No. 1105 of 2021 H
690 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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
B
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.
C 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
D 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
E 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 to begin with the existing criteria for the identification 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
F 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
G 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, it would be impermissible for

H 23
Heart of Millions v. Union of India, 2014 (14) SCC 496
NEIL AURELIO NUNES & ORS. v. UNION OF INDIA & ORS. 691
[DR. DHANANJAYA Y CHANDRACHUD, J.]

us to form a prima facie opinion on the alleged arbitrariness of the criteria. A
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 B
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 C
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 D
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- E
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 for the identification of the EWS
category shall be listed for final hearing in the third week of March
2022. F

Divya Pandey Matters to be listed for final hearing.
(Assisted by : Roopanshi Virang, LCRA)

G

H