S. SATHYAPRIYA ETC. ETC.versusSTATE OF ANDHRA PRADESH ETC. ETC.

                    S. SATHYAPRIYA ETC. ETC.                                 A
                                    v.
             STATE OF ANDHRA PRADESH ETC. ETC.

                           AUGUST 18, 1994

          [B.P. JEEVAN REDDY AND SUHAS C. SEN, JJ.]                          B

      Constitution oflndi~rt. 15-Reservation-l'rofessional courses-Ad-
mission to-Directions to State of Tamil Nadu-lssued.

      Education-Higher Education-Admission to Professional courses in        C
the State of Tamil Nadu-Directions issued.

     In these contempt petitions, in' continuation of Its orders dated
August 1, 1994, this Court further Directed :

      1. On account of the application of 69% reservation provided by the    D
Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes
(Reservation of seats In educational Institutions and of appointment or
posts In the service under the State) Act, 1993, 62 candidates are said to
have been deprived of admission In spite of their merit. These 62 can·
dldates would have been admitted If the rule of 50% had been followed. Of    E
these 62 candidates, 36 belong to 'other communities' and 26 belong to
Backward Classes category. (725·E·FJ

      2. The 161 seats meant for All India merit quota are not yet Oiied
up. This Court does not know whether all the seats will be Died up by the
students allotted by the appropriate authority against that quota or any F
seats will be left vacant and surrendered to the State Government. Secon·
dary, the 54 seats earmarked to be Died up from among the members of
the special categories are deducted from the total number of seats. (these
54 seats are In lieu of 5% reservation In favour of certain special categories
in Tamll Nadu.) This 5% reservation for the said special categories cannot G
be in addition to 69% reservation, Whereas 69% reservation is under
Article 15(4) of the Constitntion, the 5% reservation for special categories
is under Article 1S(1). As held in Indira Sawahney v. Union of India, [1992]
Supp, 2 SCR 454, the seats reserved under Artlde 15(1) corresponding to
Article 16(1) should have to be spread across the social reservation
categories. In other words, while the reservations made under Article 15(4) H
                                  721
    722                   SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A can be broadly described as vertical reservations, the reservations
    provided under Article 15(1) can be described as horizontal reservations.
    The students admitted agains1t horizontal reservation (5% quota in this
    case) will necessarily belong either to open competition category or to the
    BC/MBC/SC/ST category. Once selected they have to be adjusted against
B   their respective quota prescribed under Article 15(4). Thus, in law, these
    54 seats must also be deemed to be now available. The students who will
    b e admitted against these 54 seats will have to be spread across the
    appropriate categories as mentioned above, which would necessarily mean
    elimination of some stud1mts at the bottom of the respective
    OC/BC/MBC/SC/ST list to the extent necessary. At this stage, however, this
C   Court is not inclined to cancel any of the admissions already granted. Nor
    is it proposed to interfere with the method adopted by the respondents in
    filling up these 54 seats at this stage though it means a total reservation
    of 69 +5 = 74% reservation. [72.5·H, 726-A-D]

          3: In the case of Ramacbandra Medical College, it was directed in
D another application that for the current academic year (1994-95), the free
     seats quota shall be 60% and payment quota 40%. In the statement filed by
  · 'the State of tamil Nadu, the free seats in this College are taken only as 50.
     10 More seats will thus be available against free seats category in this
     college. Accordingly, the Government of Tamil Nadu is directed to create
E 52 extra seats In the government medical college for the current academic
     year 1994-95. The Medical Council of India and other appropriate
     authorities shall for with grant the necessary permission for this enhanced
     capacity for ~s years. As agai1mst these 52 seats plus 10 seats available in
     Ramachan~ Medical College-a total of 62 seats-62 students out of the
     consolidate,d merit list shall be admitted. In other words, candidates from
F S. No. 301 lin the consolidated merit list) onwards, excluding those already
     admittedunder one or the other reserved category, shall be admitted upto
     62 candidates. Arter admitting them, the respondents shall file a statement
     giving full particulars of the 61. candidates so included including their
     marks, their posltion:l.n the Merit List and their social status.
G                                                                (726-F-H, 727-A)
          4. If any seats remain unfilled out of the 161 seats allocated towards
    .~I India merit quota, those seats shall not be filled up except under the
     order or this Court. (727-B)

H          5. The 54 seats earmarked for special category may, however, be
                     SATHYAPRIYAv. STATE OF AP.                            723

 filled up as already proposed by the Government though this Court has            A
 indicated that the principle adopted by the Government in filling up the
 said 54 seats is wrong. (727-C]

      6.1 As against 10 seats reserved for Scheduled Tribes category, only
seven appear to have been admitted. The remaining three seats shall also
not be filled up except under the orders of this Court. [727-E]                   B
      6.2 If any of the 54 seats meant for special categories remain unfilled,
they too shall not be filled up except under the orders of this Court. (727-F]

      -7. Having seen the list of MBBS selected candidates of all categories,
it is directed that the respondent shall publish the merit list upto and          C
inclusive of the candidates obtaining 266.00 marks. This shall be done
Within one week. (727-H]

         8. So far as the admission to Engineering College is concerned, it is
· stated by the Government of Tamil Nadu that admissions have not yet been        D
  finalised and that they are in the process of being finalised. After the said
  admissions are finalised, the State of Tamil Nadu shall file a statement
  like the one they have now filed With respect to Medical College admissions
  before this Court for appropriate orders. The same observation/direction
  Will apply With respect to post-graduate medical admissions as well.
                                                                     (728-A·B]    E
      CIVIL ORIGINAL JURISDICTION: Contempt Petition Nos. 43-54
of 1994.

                                      In

      Writ Petition (C) No. 607 of 1992 Etc. Etc.

       (Under Article 32 of the Constitution of India.)

       C.S. Vaidyanathan and K.V. Mohan for the Petitioners.

      Shanti Bhushan for Applicant/Intervenor (in I.A. No. 2 in W.P. No.          G
454/94).

       H.N. Salve in IA No. 3 in W.P. No. 454/94 A.G. Ganguli.

     A. Ranganathan and A.V. Rangam for the Applicant/intervenor in
IA No. 4 in W.P. No. 454/94.                                                      H
    724                   SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A         R. Krishnamurthy, Adv. General, Ashok H. Desai, Kapil Sibal,
    Muthukumaraswamy, Addi. Govt. Pleader, P.Shanmugam, Sp!. Govt.
    Pleader, A. Mariarputham for Arputham Aruna & Co. for State of Tamil
    Nadu.

          Jitendra Sharma, Ms. Gunwant Dara and P. Gaur for the Applicants
B in IA No. 5 in WP. (C) No. 454/94.

          C.B. Babu, Vijay Kr. Verma, C.V.S. Rao Ms. Indu Malhoira, P.R.
    Tripathian, Shailendra Bhardwaj,. Ajit Kr. Sinha, R.N. Keshwani, V. Krish-
    namurthy, M.A. Krishnamurthy, A.T.M. Sampath, S.Srinivasan, S.R. Setia.
    M.T. George and P. Gaur for the Union of India.
c
          The following Orders of the Court was delivered :

          In continuation of the orders dated August 1, 1994 and August 9,
    1994, the following further orders are made :
D         According to the statement filed by the Learned Advocate General,
    Appearing for the State of Tamil Nadu - which is made a part of this order,
    marked as Appendix-A - the position is the following: the total number of
    seats in government medical colleges is 870. Free seats in two private
    medical colleges together are HIO making a total of 970. In addition to
E   above, 161 seats are allocated to be filled up on the basis of All India merit.
    Another, 54 seats are earmarked to be filled up from among the members
    of the special categories on the basis of merit in the respective categories.
    In short, the total number of seats comes to 1185.

          Out of970 seats, only 300 seats representing 31 % were filled up on
F   merit basis as against the open competition quota. Against the 30% reser-
    vation for Backward Classes, 291 students were admitted. Similarly, against
    the 20% quota of Most Backward Classes, 194 were admitted, against the
    18% quota of scheduled castes 175 were admitted and against 1% of
    scheduled tribes quota seven candidates were admitted as against the 10
G   seats reserved for them.

           It is stated that of the 300 candidates admitted as against the open
    competition quota of 31 % the candidates belonging to Backward Classes,
    Most Backward Classes and Scheduled Castes are 213, 29 and 2 respec-
    tively. (None from the Scheduled Tribes were admitted in the O.C.
H   Category.) The students not belonging to any of the reserved categories
                        SATHYAPRIYAv. STATE OF AP.                                       725

admitted against the O.C. quota is 56. This shows and affirms the trend A
disclosed last year - a trend both heartening and highly significant. The
candidates belonging to Backward Classes are getting 80% of the seats in
merit quota on the basis of their merit. In addition, they are getting 50%
of the total seats (excluding All India merit quota) under the rule of B
reservation. This was also the trend during the previous academic year
1993-94, as would be evident from the orders of this Court relating to that·
year. The candidates not belonging to any of the social reservation
categories who got admission in. the merit quota this year is only 56        C
against a total of 970 seats, i.e., not even 6%.

       If the rule of 50% reservation had been followed - which would
mean a proportionate decrease in the quota of Backward Classes and Most
Backward Classes, the position, would have been as follows : O.C. (50%) D
- 485, B.C. '18.6%) - 180, Most Backward classes (12.4%) - 120, Scheduled
Castes (18%) - 175 and Scheduled Tribes (1%)-10. The ultimate result, as
disclosed by the statement Appendix-A, is that on account of the applica-
tion of 69% reservation provided by the Tamil Nadu Backward Classes, E
Scheduled Castes and Scheduled Tribes (Reserv~ of seats in education-
al institution and of appointment or posts in the services under the State)
Act, 1993, 62 candidates are said to have been deprived of admission
inspite of their merit.' These 62 candidates would have been admitted if F
the rule of 50% had been followed. Of these 62 candidates, 36 belong to
'other communities' and 26 belong to Backward Classes category. Our
immediate concern is to provide seats for these merit students. The ques-
tion is how?
                                                                                                 G
       As stated above, the 161 seat meant for All India merit quota are
not yet filled up, we do not know whether all the seats will be filled up by
the students allotted by the appropriate authority against that quota or any                     H
seats will be left vacant and surrendered to the State Government Second-
ly, the 54 seats earmarked to be filled up from among the members of the
special categories are deducted from the total number of seats. (These 54
seats are in lieu of 5% reservation in favour of certain special categories
in Tamil Nadu.) In our opinion, this is wrong. This 5% reservation for the
said special categories cannot be in addition to 69% reservation. Whereas
     .Sri Vaidyanathan, learned counsel for the petitioner does not admit the correctness of
     the said statement. He submits that the said statement was given to him just before
     the arguments in the n1atter commenced and that, therefore, he had no time or
     opportunity to verify the correctness of the facts set out in the Statement. For the time
     being, however, we are._e~ceeding on the basis of the said Statement.
    726                   SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A 69% reservation is under Article 15(4) of the Constitution, the 5% reser-
   vation for special categories is under Article 15(1). As held in Indira
   Sawhney v: Union of India, {1992] Supp. 2 SCR 454, the seats reserved
   under Article 15(1) (corresponding to Article 16(1), should have to be
   spread across the social reservation categories. In other words, while the
   reservations made under Article 15( 4) can be broadly described as vertical
B
   reservations, the reservations provided under Article 15(1) can be
   described· as horizontal reservations. The students admitted against
   horizontal reservation (5% quota in this case) will necessarily belong either
   to open coinpetition category or to the BC/MBC/SC/ST category. Once
   selected they have to be adjusted against their respective quota prescribed
c  under Article 15( 4). Thus, law, these 54 seats must also deemed to be now
   available. The students who will be admitted against these 54 seats will have
   to be spread across the appropriate categories as mentioned above, which
   would necessarily mean elimination of some students at the bottom of the
   respectively OC/BC/MBC/SC/ST list to the extent necessary. At this stage,
D •however, we are not inclined to cancel any of the admissions alr.eady
   granted. We, therefore, do not propose to interfere with the method
   adopted by the respondents in filing up these 54 seats at this stage though
   it means a. total reservation of 69 +5 = 74% reservation - an aspect rightly
   emphasised by Sri Vaidyanathan. Our concern at present is to provide for
   the 62 merit students who have been deprived of admission because of the
E 69% reservation provided by the ;aid Tamil Nadu Act without disturbing
   the admissions already made.

          Ther~ is one more fact to be mentioned at this stage. In the case of
     Ramachandra Medical College, we have directed in another application
F that for the current academic year (1994-95), the free seats quota shall be
    60% and payment quota 40% .In the statement filed by the State of Tamil
    Nadu, the free seats in this college are taken only as 50. 10 niore seats will
    thus be available against free seats category in this college.


G         Accordingly, we direct the Government of Tamil Nadu to create 52
    extra seats in the government medical colleges for the current academic
    year 1994-95. The Medical Council of India and other appropriate
    authorities shall forthwith grant the necessary permission for this enhanced
    capacity for this year. As against these 52 seats plus 10 seats available in
H   Ramachandra Medical College - a total of 62 seats - 62 students out of the
                    SATHYAPRIYAv. STATE OF AP.                            727

consolidated merit list shall be admittedly In other words, candidates from      A
S. No. 301 (in the consolidated merit list) onwards, excluding those already
admitted under one or the other reserved category, shall be admitted upto
62 candidates. After admitting them, the respondents shall file a statement
giving full particulars of the 62 candidates so including their marks, their
position in the Merit List and their social status.                              B
      It is further directed that if any seats remain unfilled out of the 161
seats allocated towards All India merit quota, those seats shall not be filled
up except under the orders of this Court.

      The 54 seats earmarked for special category may, however, be filed         C
up as already proposed by the government though we have indicated that
the principle adopted by the government in filling up the said 54 seats is
wrong. (We are told that the process of selection against these 54 seats is
at an advance stage and is likely to be finalised soon. More particularly
because the application of the correct principle indicated above in this         D
behalf may mean cancellation of admission of some of the students already
admitted in OC/BC/MBC/SC/ST quotas, we are not disturbing the said
process at this stage. This matter can be looked into at a later stage.)

      In this connection, we may also mention that as against 10 seats           E
reserved for Scheduled Tribes category, only seven appear to have been
admitted. The remaining three seats shall also not be filled up except under
the orders of this Court.

      It is also directed that if any of the 54 seats meant for special
                                                                                 F
categories remain unfilled, they too shall not be filled up except under the
orders of this Court.

         A grievance is made by Sri Vaidyanathan, learned counsel for the
  petitioner that the Government of Tamil Nadu has not published the merit
  list pursuant to common entrance test held by it, as directed by this Court G
  in Unnikrishnan, J.P. v. State of Andhra Pradesh, [1993] 1 SCR 594. Having
  seen the list of MBBS sekcted candidates of all categories, we direct that
  the respondent shall publish the merit list upto the inclusive of the can-
. didates obtaining 266.00 marks. This shall be done within one week from
  today.                                                                      H
                          SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A        So far as the admission to engineering college is concerned, it is
  stated by the learned Advocate General that the admission have not yet
  have finalised and that they are in the process of being .finalised. After the
  said admissions are finalised, the State of Tamil Nadu shall file statement
  like the one they have now filed with respect to medical college admissions
B before this court for appropriate orders. The same observation/direction
  will apply with respect to post -graduate medical admissions as well.

    G.N.                                                   Petition disposed of.