SAMTA AANDOLAN SAMITI & ANR.versusUNION OF INDIA & ORS.

                       [2013) 11 S.C.R. 1124


A               SAMTA AANDOLAN SAMITI & ANR.
                                  v.
                     UNION OF INDIA & ORS.
               (Writ Petition (Civil) No. 677 of 2013)

                       DECEMBER 11, 2013
B
          [K.S.RADHAKRISHNAN AND A.K. SIKRI, JJ.]

         Education - Admission - Medical admissions - MBBS
   - Choice given by respondents to SCISTIOBC candidates
C taking admission in open competition, to opt for better
   Institution of their choice for which he/she would have been
   eligible as per the rules of reservation - Challenged -
   Whether once a candidate in reserved category had taken
   admission under the open competition, he could not have
o been given a choice for better Institution on the premise that
  he/she will be governed by Rules of reservation - Held:
  Respondents, at the time of counseling, only accorded a
  higher/better choice to meritorious reserved candidates
  (MRC) who got recommended against general/unreserved
E seats vis-a-vis those reserved category candidates who were
  accommodated against their quota - It was an inter-se
  adjustment between two kinds of persons belonging to
  reserved category - In inter-se merit, persons who were able
  to find their place in general list on account of their merit are
F definitely better placed than those candidates who are
  selected in the reserved category, though both types of
  candidates belong to reserved category - If between two
  categories of persons belonging to same class, higher choice
  is not given to the persons who are better in merit viz. the
  MRCs, it would clearly be injustice to them - Action of the
G respondents not prejudicial to the interests of the petitioners
  in any manner.

        The petitioners filed the instant Writ Petition under
                                1124
H
   SAMTA AANDOLAN SAMIT! v. UNION OF INDIA             1125


Article 32 of the Constitution pleading that while making      A
admissions in the MBBS course, the respondent-All India
Institute of Medical Sciences (AllMS) was not strictly
adhering to the reservation policy; and questioning the
manner in which seats were allotted to the candidates
belonging to reserved category. As per them, the AllMS         B
far exceeded the quota prescribed for the reserved
category candidates resulting in more than 50 %
reservations of the seats, which is contrary to the law laid
down by this Court.
     The petitioners objected to the choice given by           C
respondents to SC/ST/OBC candidates who had taken
admission in the open competition, to opt for a better
Institution of their choice for which he/she would have
been eligible as per the rules of reservation. This,
according to the petitioner, was impermissible as once a       D
candidate in reserved category had taken admission
under the open competition, he could not have been
given a choice for better Institution on the premise that
he/she will be governed by Rules of reservation.
     The stand of the respondent-AllMS, on the other E
hand, was that the methodology adopted by the AllMS for
admission in MBBS course was perfectly valid and
justified. The respondent maintained that 50% quota had
not been breached and what was done in fact was inter
se adjustment among those who belong to reserved F
class i.e. those who were selected on their own merit and
found their way into general category vis-a-vis those who
were admitted on the basis of reservation provide~ in the
respective reserved categories. It was contended on
behalf of the respondent that this was necessary as G
otherwise those persons from reserved category who
were more meritorious would be in a disadvantageous
position vis-a-vis those who secured admission on the
basis of relaxed standard under the reserved quota
meant for them.                                           H
    1126    SUPREME COURT REPORTS              [2013] 11 S.C.R.


A       Dismissing the petition, the Court
       HELD: 1.1. When certain persons belonging to
  reserved category get selected in open competition on
  the basis of their merit, they are not to be counted in the
  reserved category against the reserved category quota.
8 It is open to the authorities to fill the posts meant for
  reserved category candidates from amongst the persons
  in such categories after excluding those who have found
  their place in general merit. As a fortiori, while calculating
  the limit of 50% reservation, those candidates belonging
C to reserved category who have found their place on the
  basis of their merit competing with general candidates are
  not to be taken into consideration. [Para 15] [1143-G-H;
  1144-A]

o      1.2. Those members who belong to reserved
  category but get selected in the open competition on the
  basis of their own merit have a right to be included in the
  general/unreserved category. Such Meritorious reserved
  candidates (MRC) not to be included in the quota
E reserved for Scheduled Caste etc. It is an admitted
  position that if these persons are excluded, the
  respondents have not exceeded the quota meant for
  reserved category. The respondents, at the time of
  counseling, have only accorded a higher/better choice to
  these meritorious reserved candidates (MRC) who got
F recommended against general/unreserved seats vis-8-vis
  those reserved category candidates who are
  accommodated against their quota. It is, therefore, an
  inter-se adjustment between the two kinds of persons
  belonging to reserved category. In their inter-se merit,
G these persons who have been able to find their place in
  general list on account of their merit are definitely better
  placed than those candidates who are selected in the
  reserved category, though both types of candidates
  belong to reserved· category. Thus, if between these two
H
   SAMTAAANDOLAN SAMITI v. UNION OF INDIA              1127


categories of persons belonging to same class, higher          A
choice is not given to the persons Who are better in merit
viz. the MRCs, it would clearly be injustice to them. In the
instant case, neither upper limit of 50% reservation is
breached, nor any rights of the petitioners are violated or
the action of the respondents have been to their prejudice     B
in any manner. [Paras 19 and 24] [1145-E-H; 1146-A;
1148-G]

    Ritesh R.Sah vs. Dr. Y.L. Yamul & Ors. (1996) 3 SCC
253: 1996 (2) SCR 695 - held applicable
                                                               c
     Indira Swhney vs. Union of India (1992) Suppl. 3 SCC
212; Union of India vs. Ramesh Ram & Ors. (2010) 7 SCC
234: 2010 (6) SCR 698 and Yoganand Vishwasrao Patil vs.
State of Maharashtra (2005) 12 SCC 311 - referred to.
                                                               D
                     Case Law Reference:
    1996 (2) SCR 695            held applicable    Para 12
    (1992) Suppl. 3 SCC 212 referred to            Para13
    2010 (6) SCR 698            referred to        Para 15     E
    (2005) 12 sec 311           referred to        Para 22

    CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
Constitution of India.
                                                               F
    Writ Petition (Civil) No. 677 of 2013.

     A. Mariarputham, M.L. Lahoty, Paban K. Sharma, Shobhit
Tiwari, Gargi B. Bharali, Lal Pratap Singh, Ram Niwas, Umesh
Pratap Singh, Ruchi Kohli, Gopal Shankarnarayanan,             G
Vikramaditya, Dr. R.R. Kishore, Shiva Pujan Singh, Niranjana
Singh, Kumar Rajan Mishra, Narender S. Yadav, Alok Prasanna
Kumar, D.L. Chidananda, B. Krishna Prasad, Yusuf Khan,
Mahmood Pracha, Suit Babbar, Naresh Kumar (for AllMS) for
the appearing parties.
                                                               H
    1128    SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A       The Judgment of the Court was delivered by

       A.K. SIKRI, J. 1. The petitioners have approached this
  Court by way of filing the present Writ Petition filed under Article
  32 of the Constitution of India with the grievance that while
  making admissions in the MBBS course, the respondent All
9
  India Institute of Medical Sciences (AllMS) is not strictly adhering
  to the reservation policy and have questioned the manner in
  which seats are allotted to the candidates belonging to
  reserved category. As per them, the AllMS have far exceeded
  the quota prescribed for the reserved category candidates
C which has resulted in more than 50 % reservations of the seats,
  which is contrary to the law laid down by this Court. The stand
  of the AllMS, on the other hand, is that there is no violation of
  the law laid down by this Court in this behalf and the
  methodology adopted by the AllMS for admission in MBBS
D course is perfectly valid and justified. The controversy has
  arisen in the following backdrop:

        2. "The All India Institute of Medical Sciences (AllMS), New
  Delhi issued Prospectus for admission in the MBBS course
E starting from August, 2013 along with admission in Six New
  AllMS at Bhopal, Patna, Jodhpur, Rishikesh,Raipur and
  Bhubaneswar with an intake of 100 students in each new AllMS.
  The reservation policy was notified to be 7.5.% ST, 15% SC,
  27% OBC and Indian Nationals, 3% reservation for Orthopedic
F physically handicapped to be provided on horizontal basis.
  Para 4.2 of the prospectus prescribe the procedure for
  selection into the MBBS course hereunder:

        "4.2 PROCEDURE OF SELECTION:

G            Based on the result of the Competitive Entrance
        examination, merit lists will be prepared as below:

             (a) Common Merit List: Subject to the Govt. of lndi,
        DOPT. O.M.No.36011/1/98.Estt.(Res), dated 1st July
        1998. It is clarified that only such SC/ST/OBC candidates
H
   SAMTA AANDOLAN SAMITI v. UNION OF INDIA                      1129
                [A.K.SIKRI, J.]
     who are selected on the same standard as applied to                 A
     general candidates shall not be adjusted against reserved
     vacancies. In other words, when a relaxed standard is
     applied in selecting an SC/ST/OBS candidates, for
     example in the age-limit, experience, qualification,
     permitted number of chances in written examination,                 B
     extended zone of consideration larger than what is
     provided for General Category candidates etc. the SC/ST/
     OBS candidates are to be counted against reserved
     vacancies. Such candidates would be deemed as
     unavailable for consideration against the unreserved                C
     vacancies. Therefore the reserved candidate will be
     considered on General Seat only if no relaxation of the
     eligibility level (i.e. % of marks) and at cut off level of marks
     in MBBS entrance examination is given.
             (b) Scheduled Caste candidates list                         D

             (c) Scheduled Tribe candidates list
             (d) Other Backward Classes candidates list"
      3. Thirty seven (37) candidates from the common merit list,        E
 eleven (11) candidates from the merit list of Scheduled Caste
 category and five (5) candidates from the merit list of
 Scheduled Tribe and 19 (nineteen) candidates from the merit
 list of Other Backward Classes category will be admitted
 including 3% reservation for orthopaedic physically                     F
 handicapped on horizontal basis in the seats available. The
 reservation will be 7 % % ST, 15% SC and 27% for OBC
category. In case eleven (11) candidates from the Scheduled
Caste or five (5) candidates from the Scheduled Tribe
categories and nineteen (19) candidates belonging to OBC are             G
not available, then the number of candidates selected on the
basis of merit for general seats shall be correspondingly
increased so that the total number of candidates selected for
the MBBS course remains seventy two (72). The remaining
candidates will be kept on the waiting list in order of merit. Inter     H
    1130    SUPREME COURT REPORTS                , [2013] 11 S.C.R.


A   se merit of two or more candidates in the same category
    obtaining equal marks in the competitive entrance examination
    will be determined in order of preference as under:

              (a) Candidates obtaining higher marks in Biology in
        the entrance examination.
B
              (b) Candidates obtaining higher marks in Chemistry
        in the entrance examination.

               (c) Candidates obtaining higher marks in Physics
c       in the entrance examination.

              (d) Candidates older in age to be preferred.

             A similar procedure for selection will apply for the six
        new AllMS where the number will be calculated for a total
D       of 100 admissions for each."

        4. Petitioner No.2 being eligible in all respects' under
  unreserved category had submitted his application form and
  was allotted application form number-1021016668. He was
  issued the Admit Card for AllMS-MBBS 2013 Entrance
E Examination. Petitioner No.2 appeared in the competitive
  entrance examination held on 1.6.2013 and secured 1066 over
  all rank. A counseling letter was issued for counseling at Delhi
  AllMS on 10-12 July 2013 and the Petitioner No.1 was called
  for counseling scheduled to be held on 10th July 2013.
F
        That as per the counseling letter the method of counseling
  is:

        4. Method of counseling: The following process will be
G       adapted for counseling for all 7AllMS Institutes.

             i. In the counseling process, the seats to be filled by
        open (UR) competition should be filled up first, wherein the
        candidates should be called for counseling based on merit
        alone irrespective of whether they belong to SC,ST or
H       OBC.
                     '
SAMTAAANDOLAN SAMIT! v. UNION OF INDIA                      1131
           [A.K.SIKRI, J.]

       ii. Next, reservation categories like SC/ST/OBC               A
candidates will be counseled to fill up the seats earmarked
for them in their respective categories. During this process,
if a candidate belonging to SC/ST/OBC who had taken
admission under open competition, opts for a better
institution of his/her choice for which he or she would be           B
eligible as per the rules of reservation, the seat vacated
by him or her in open (UR) competition shall be filled with
a candidate from the same reservation category only, in
order of merit.

       Note: All reserved category candidates who qualify
                                                                     c
in the open (general) merit list (i.e. 4 times of the open
category seats) shall necessarily attend the counseling for
open category seats and shall exercise his/her option and
then if, he/she desires to opt for a different institution in his/
her respective reserved category, he/she may attend the              D
counseling meant for that reserved category.

      Provided:

      a. If he/she is not present or if present, fails to or         E
refused to take a seat in open category, he/she shall not
be allowed for attending the counseling for reserved seats.

       b.He/she cannot opt for institution under reservation,
if he/she had already opted the same institution in open
category.                                                            F

        Methods of counseling: In the counseling process,
the seats to be filled by open (UR) competition should be
filled up first, wherein the candidates should be called for
counseling strictly by merit alone till the last unreserved seat     G
is filled, irrespective of whether they belong to SC,ST or
OBC. The counseling for ref erved category seat ( which
will also be strictly by meritY should commence only after
filling up of all the unreserved seats (i.e. open category
seats). Meritorious reserved candidate belonging to SC/              H
    1132    SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A       ST/OBC category, who has taken unreserved seat in any
        institution after attending the open merit counseling, if
        exercises his/her option to take a different institute in the
        reserved category counseling, the seat so vacated by this
        candidate should be available to next meritorious
B       candidate belonging to that particular reserved category
        only. In other word if SC/ST/OBC candidate got any
        institution under unreserved category and if he/she opts
        different institution under reserved category of his/her
        choice the resultant vacated unreserved seat shall be
c       allotted to same category candidate in order of merit i.e.
        the vacated seat of meritorious reserved category
        candidate should be immediately added to the seats
        available under the reserved category in the institute he/
        she had opted during counseling for UR seat.
D              Note: For example - if a SC meritorious candidate
        who has initially opted a X institution from open category,
        vacates a seat in open category because he wants to take
        Y institution from reserved category during the counseling
        in reserved category, the same seat (i.e. UR seat of X
E       institute) which is vacated by him/her shall be made
        available to the next SC candidate in order of merit."

       5. Petitioner No.2 appeared in the counseling (1st
  counseling) conducted by the respondents. The petitioners aver
F that the respondents had conducted the counseling in strict
  adherence of the procedure quoted hereinabove. However, the
  respondents forced reserve candidates to obtain the
  unreserved (UR) seats by note (4.2.a) in counseling call letter.
  In this way the respondents deliberately tried to convert UR
  seats to reserve category seat because of note 4.2. Otherwise
G the candidates would have been provided freedom to opt seats
  under UR seats or category seats of their choice in different
  AllMS. It is averred that the common practice in the counseling
  of NEET (National Eligibility cum Entrance Test), AIPMT (All
  India Pre Medical Test) and states counseling for admission in
H
   SAMTA AANDOLAN SAMITI v. UNION OF INDIA                    1133
                [A.K.SIKRI, J.]

Government Medical Colleges, is parallel counseling for all          A
categories on their merit cum choice basis in which unreserved
seats are filled first as per rule framed _by this Court in Indira
Sawhney case.

     6. It is stated that ·the petitioner No.2 has secured rank      B
1066 in the competitive entrance examination and counseling
for unreserved seats on 1st day of counseling could reach only
up to 663 ranks only. In the counseling done for unreserved
seats approx. around 140 reserve categories candidate found
place on general seats.
                                                                     c
     7. On the second day of counseling, which is for other
backward classes (OBC) category, the counseling started from
rank 1st for OBC and approx. around 120 OBC candidates,
who has secured their merit position in unreserved category
opted for better colleges from their counterpart in unreserved       D
category by enjoying their reserv.e status on OBC seats: In other
words, the seats/position occupied by meritorious reserved
category candidates was vacated. All vacated seats and 181
reserve seats were filled on 11 July by comparative low rank
OBC candidate. By adding this around 45 percent of                   E
candidates from OBC took the benefit of Quota instead of 27
per cent. The case sought to be set up is that by this procedure
it exceeds the limit given by the Constitution.

   8. This position is sought to be highlighted by the following
MBBS seat position in each AllMS:                                    F

  Name of Institution       Total UR       OBC SC         ST
                            Seats

  AllMS, New Delhi          72      37      19     11     5          G
            .1.

  All MS, Bhopal            100     50     27      15     8
  AllMS,Bhubaneswar         100     50     27      15     8
  AllMS,Jodhpur             100     50     27      15     8
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    1134     SUPREME COURT REPORTS                  [2013) 11 S.C.R.


A    AllMS, Patna              100     50     27      15     8
     AllMS, Raipur             100     50     27      15     8
     AllMS,Rishikesh           100     50     27      15     8

B    Total                     672     337    181     101    53
       9. It is stated that as against 181 seats meant for OBC
  category, 270 seats have been filled from amongst the
  candidates belonging to this category which is evidentially
  impermissible. By the time this matter was argued, as the third
C and final counseling had taken place and the allotment of the
  seats was done on the basis of that counseling. The final
  picture which emerged, is that the last unreserved candidates
  who secured admission in reserved category had rank of 1476.
  There were 79 ca.ndidates in OBC category who had higher
D rank than 1476 and were, thus, adjusted as meritorious
  reserved candidates (MRC) candidates in unreserved
  candidates. Likewise, this SC candidate with rank above 1476
  could make their way to unreserved list.

E        10. On the aforesaid basis, following prayer is made in the
    Writ Petition:

         (a) Pass writ, order or direction whereby respondents be
    directed to give admission to petitioner No.1 in unreserved
    category in MBBS course 2013,
F
        (b) Pass writ, order or direction whereby directions No.4
        (reproduced at para No.8 of the writ petition) in counseling
        letter prescribing procedure for counseling be quashed and
        set aside.
G
        (c)Pass writ order or direction whereby respondents be
        directed to make strict compliance of the Hon'ble Supreme
        Court judgment passed in the case of Union of India vs.
        Ramesh Ram (2010) 7 SCC 234).

H
   SAMTA AANDOLAN SAMITI v. UNION OF INDIA                   1135
               [A.K.SIKRI, J.]

     (d) Pass writ order or direction whereby respondents be          A
     restrained to permit the reserve category candidates to
    -occupy the seats in unreserved category vacated by
     meritorious category candidates, who have opted/chosen
     their reserve category for seeking admission in MBBS
     course 2013.                                                     B

     (e) Pass writ order or direction whereby respondents be
     directed to undertake the admission exercise for MBBS
     course 2013 strictly in terms of prayer sought in Paragraph
     (c).
                                                                      c
     (f) Pass such other or further order (s) as this Hon'ble Court
     may deem fit in the facts and circumstances of the case."

      11. After issuance of the show cause notice, respondents
appeared. Since main contesting party is the AllMS, counsel           D
affidavit on its behalf filed by Dr.A.B.Dey, Dean, (Research)
who had acted as Convener of the counseling in the aforesaid
admission process. It is stated by him in his affidavit that the
process of counseling was discussed and finalized in the
meeting held on 26.5.2013 with all Directors, AllMS, senior           E
officials and senior faculties. The minutes of the meeting, inter-
alia, mentioned that :
                •
     • ... it was mandatory for all candidates to be present in
     person for counseling on the days as given in the call letter.
     No request for authorized representative to be present on        F
     behalf of candidate would be entertained. If a candidate
     failed to come for counseling in person, she/she would be
     marked absent and her/his candidature would stand
     cancelled .. ."
                                                                      G
      12. It is also stated in the counter affidavit that in this
meeting it was decided to constitute a Counseling Committee
to undertake three counts of counseling for MBBS and two
rounds of counseling for B.Sc. (Hons.) Nursing for 7 AllMS. For
this reason, in the counseling letter, attention of the candidates
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    1136    SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A was drawn to the provision in the prospectus whereby
  candidates were asked to give choice about different AllMS
  where they would like to be admitted. They were also informed
  that allocation of seats will be done on merit-cum-choice. In the
  counseling letter, therefore, candidates were informed that they
B would exercise their choice of the particular Institute when called
  during the counseling as per the rank in respective category.
  Notwithstanding whatsoever choices he/she had made while
  filling form, choice thus made was to be final and no claim
  whatsoever on the basis of choices made in admission form
c was to be entertained. This was widely circulated through
  newspaper advertisement and posted on AllMS website as
  well, well in advance. It is pleaded that this method of counseling
  adopted by AllMS was in tune with the judgment of this Court
  in Ritesh R.Sah vs. Dr. Y.L. Yamu/ & Ors. (1996) 3 SCC 253.
0 The exact nature of the counseling method which was adopted
  is stated below :

        1. In the counseling process, the seats to be filled by open
        (UR) competition should be filled up first, wherein the
        candidates should be called for counseling based on merit
E       alone irrespective of whether they belong to SC,ST or
        OBC.

        2. Next, reservation categories like SC/ST/OBC
        candidates will be counseled to fill up the seats earmarked
F       for them in their respective categories. During this process,
        if a candidate belonging to SC/ST/OBC who had taken
        admission under open competition, opts for a better
        institution of his/her choice for which he or she would be
        eligible as per the rules of reservation, the seat vacated
        by him or her in open (UR) competition shall be filled with
G
        a candidate from the same reservation category only, in
        order of merit.
            \
        Note: All reserved category candidates who qualify in the
        open (general) merit list (i.e. 4 times of the open category
H       seats) shall necessarily attend the counseling for open
SAMTA AANDOLAN SAMITI v. UNION OF INDIA                   1137
            [A.K.SIKRI, J.]

category seats and shall exercise his/her option and then          A
if, he/she desires to opt for a different institution in his/her
respective reserved category, he/she may attend the
counseling meant for that resel')led category.

Provided
                                                                   8
a. If he/she is not present or if present, fails to or refuses
to take a seat in open category, he/she shall not be
allowed for attending the counseling for reserved seats.
b. He/she cannot opt for institution under reservation, if he/
she had already opted the same institution in open                 C
category ..
 Methods of counseling
In the counseling process, the seats to be filled by open
(UR) competition should be filled up first, wherein the            D
candidates should be called for counseling strictly by merit
alone till the last unreserved seat is filled, irrespective of
whether they belong to SC,ST or OBC.
The counseling for reserved category seat (which will also         E
be strictly by merit) should commence only after filling up
of all the unreserved seats (i.e. open category seats).
Meritorious reserved candidate belonging to SC/ST/OBC
category, who has taken unreserved seat in any institution
after attending the open merit counseling, if exercises his/
                                                                   F
her option to take a different institute in the reserved
category counseling, the seat so vacated by this candidate
should be available to next meritorious candidate
belonging to that particular reserved category only. In other
word if SC/ST/OBC candidate got any institution under
unreserved category and if he/she opts different institution       G
under reserved category of his/her choice the resultant
vacated unreserved seat shall be allotted to same category
candidate in order of merit, i.e. the vacated seat of
meritorious reserved category candidate should be
                                                                   H
    1138     SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A        immediately added to the seats available under that
         reserved category in the institute he/she had opted during
         counseling for UR seat.
         Note: For example - 'if a SC meritorious candidate who
         has initially opted a X institution from open category,
B        vacates a seat in open category because he wants to take
         Y institution from reserved cate_gory during his counseling
         in reserved category, the same seat (i.e. UR seat of X
         institute) which is vacated by him/her shall be made
       »·available to the next SC candidate in order of merit."
c
        .. 13. It is pleaded that with the adoption of the aforesaid
    method, the authorities found out the candidates among
    reserved candidates who qualified on their own merit and are
    on the open merit list and then asking their option if they want
    to choose other Institute of their choice which is present in their
0
    reserved Cc;ltegory and not in unreserved category. This method
    gives them option to change Institute in their better choice in
    reserved category and once that is done such candidates are
    given that reserved seats but while computing the percentage
    of reservation they are not counted against reservation pool.
E   To achieve that objective, the seat which they vacated ·is offered
    to the same reserved category below in merit. It is thus pleaded
    that 50% of the ceiling is never broken in the present counseling
    and thus persons belonging to reserved category, who are able
    to come on their own merit while competing with the general
F   candidates category can be put in the list of general/unreserved
    category, as held by this Court in the case of Indira Swhney
    vs. Union of India (1992) Suppl. 3 SCC 212.
       14. We have already quoted the general proposition of law,
G in so far as extend of reservation is concerned, as laid down
  in Indira Sawhney (supra). Mr. Lahoti has placed reliance on.
  paragraphs 804, 807 and 809 of lt\_is judgment whereas
  learned counsel for the respondent led e-mphasis on paras 811
  and 813. In the case of Indira Sawhney (supra) the principle was

H
  SAMTA AANDOLAN SAMITI v. UNION OF INDIA                  1139
               [A.K.SIKRI, J.]

stated in the following terms: We quote hereunder all these         A
paragraphs:
    PART-V
    (QUESTION NOS. 6. 7 AND 8)
                                                                    B
    Question 6: To what extent can the reservation be made?
    (a) Whether the 50% rule enunciated in Balaji a binding
    rule or only a rule of caution or rule of prudence?
    (b) Whether the 50% rule, if any, is confined to reservations   C
    made under Clause (4) of Article 16 or whether it takes in
    all types of reservations that can be provided under Article
    16?
    (c) Further while applying 50% rule, if any, whether an year
    should be taken as a unit or whether the total strength of D
    the cadre should looked to?
     In Balaji, a Constitution Bench of this Court rejected the
     argument that in the absence of a limitation contained in
     Article 15(4), no limitation can be prescribed by the court    E
     on the extent of reservation. It observed that a provision
     under Article 15(4) being a "special provision" must be
   - within reasonable limits. It may be appropriate to quote the
     relevant holding from the judgment.
     -When Article 15(4) refers to the special provision for the F
     advancement of certain classes or scheduled castes or
     scheduled tribes, it must not be ignored that the provision
     which is authorised to be made is a special provision; it
     is not a provision which is exhaustive in character, so that
     in looking after the advancement of those classes, the G
    -State would be justified in ignoring altogether the
     advancement of the rest of the society. It is because the
   , interests of the society at large would be served by
   • promoting the advancement of the weaker elements in the
     society that Article 15(4) authorises special provision to H
    1140   SUPREME COURT REPORTS                  [2013] 11 S.C.R.
                                                       •
A       be made. But if a provision which is in the nature of an
        exception completely excludes the rest of the society, that
        clearly is outside the scope of Article 15(4) the Parliament
        intended to provide that where the advancement of the
        Backward classes or the Scheduled Castes and Tribes
B       was concerned, the fundar.1ental rights of the citizens,
        constituting the rest of the society were to be completely
        and absolutely ignored ... A special provision contemplated
        by Article 16(4) must be within reasonable limits. The
        interests of weaker sections of society which are a first
c       charge on the State and the center have to be adjusted
        with the interests of the community as a whole. The
      . adjustment of these competing claims is undoubtedly a·
        difficult matter, but if under the guise of making a special ·
        provision, a State reserves practically all the seats
        available in all the colleges, that clearly would be subverting
D
        the object of Article 15(4). In this matter again, we are
        reluctant to say definitely what would be a proper provision
        to make. Speaking generally and in a broad way a special
        provision should be less than 50%; how much less than
        50% would depend upon the relevant prevailing
E       circumstances in each case.
              ,.,
         In Devadasan this rule of 50% was applied to a case
        arising under Article 16(4) and on that basis the carry-
        forward rule was struck down. In Thomas, however, the
F       correctness of this principle was seriously questioned,
        Fazal Ali, J. observed:
       This means that the reservation should be within the
       permissible limits and should not be a cloak to fill all the
       posts belonging to a particular class of citizens and thus
G      violate Article .1fil1l of the Constitution indirectly. At the
       same time Clause (4) of Article 16 does not fix any limit
       on the power of the Government to make reservation.
       Since Clause (4) is a part of Article 16 of the Constitution
       it is manifest that the State cannot be allowed to indulge
H      in excessive reservation so as to defeat the policy
SAMTAAANDOLAN SAMITI v. UNION OF INDIA                  1141
           [A.K.SIKRI, J.]

contained in Article 1fil11. As to what would be a suitable      A
reservation within permissible limits will depend upon the
facts and circumstances of each case and no hard and fast
rule can be laid down, nor can this matter be reduced to a
mathematical formula so as to be adhered to in all cases.
Decided cases of this Court have no doubt laid down that         B
the percentage of reservation should not exceed 50%. As
I read the authorities, this is however, a rule of caution and
does not exhaust all cattgories. Suppose for instance a
Stats has a large number of backward class of citizens
which constitute 80% of the population and the                   c
Government, in order to give them proper representation,
reserves 80% of the·jobs for them can it be said that the
percentage of reservation is bad and violates the
permissible limits of Clause (4) of Article 16? The answer
must necessarily be in the negative. The dominant object
                                                                 0
to this provision is to take steps to make inadequate
representation adequate.
 Krishna Iyer, J. agreed with the view taken by Fazal Ali, J.
 in the following words:
                                                                 E
 I agree with my learned brother Fazal Ali, J. in the view
 that the arithmetical limit of 50% in any one year set by
 some earlier rulings cannot perhaps be pressed too far.
 Overall representation in a department does not depend
 on recruitment in a particular year, but the total, strength
 of a cadre. I agree with his construction of Article 16(4)      F
 and his view-about the 'carry forward' rule.

 823. Mathew, J. did not specifically deal with this aspect
 but from the principles of 'proportional equality' and
 'equality of results' espoused by the learned Judge, it is      G
 argued that he did not accept the 50% rule. Bag, J. also
 did not refer to this rule but the following sentence occurs
 in his judgment at page 962 and 963:
 If a reseNation of posts under Article 16(4) for employees
 of backward classes could include complete reservation          H
    1142   SUPREME COURT REPORTS                 [2013) 11 S.C.R.


A      of higher posts to which they could be promoted, about
       which there could be no doubt now, I fail to see why it
       cannot be partial or for a part of the duration of service
       and hedged round with the condition that a temporary
       promotion would operate as a complete and confirmed
8      promotion only if the temporary promotee satisfies some
       tests within a given time.
       Ray, C.J. did not dispute the correctness of the 50% rule
       but at the same time he pointed out that this percentage
       should be applied to the entire service as a whole.
c
       807. We must, however, point out that Clause (4) speaks
       of adequate representation .and not proportionate
       representation. Adequate representation cannot be read
       as proportionate representation. Principle of proportionate
D      representation is accepted only in Articles 330 and 332
       of the Constitution and that too for a limited period. These
       articles speak of reservation of seats in Lok Sabha and
       the State legislatures in favour of Scheduled Tribes and
       Scheduled Castes proportionate to their population, but
       they are only temporary and special provisions. It is
E
       therefore not possible to accept the theory of proportionate
       representation though the proportion of population of
       backward classes to the total population would certainly
       be relevant. Just as every power must be exercised
       reasonably and fairly, the power conferred by Clause (4)
F      of Article 16 should also be exercised in a fair manner and
       within reasonable limits -and what is more reasonable than
       to say that reservation under Clause (4) shall not exceed
       50% of the appointments or posts, barring certain
       extraordinary situations as explained hereinafter. From this
G      point of view, the 27% reservation provided by the
       impugned Memorandums in favour of backward classes
       is well within the reasonable limits. Together with
       reservation in favour of Scheduled Tribes, it comes to a
       total of 49.5%. In this connection, reference may be had
H      to the Full Bench decision of the Andhra Pradesh High
   SAMTA AANDOLAN SAMITI v. UNION OF INDIA                     1143
               [A.K.SIKRI, J.]

     Court in Narayan Rao v. State , striking down the                  A
     enhancement of reservation from 25% to 44% for 0.8.Cs.
     The said enhancement had the effect of taking the total
     reservation under Article 16(4) to 65%.
     "809. From the above discussion, the irresistible
                                                                        8
     conclusion that foTIOws is that the reservations
     contemplated in clause (4) of Article 16 should not exceed
     50%.
      "... 811 ... It is well to remember that the reservations under
      Article 16 (4) do not operate like a communal reservation.        C
      It may well happen that some members belonging to, say
      Scheduled Castes get-selected in the open competition
      field on the basis of their own merit; they will not be counted
      against the quota reserved for Scheduled Castes; they will
    · be treated as open competition candidates."                       o
           "813 .... lt is however, made clear that the rule of 50%
     shall be applicable only to reservation proper; they shall
     not be - indeed cannot be - applicable to exemptions,
     concessions or relaxations, if any provided to backward
     class of citizen's under Article 16(4) ... "                       E
       15. There is no quarrel upto this stage. It is now well
entrenched principle of law that those members belonging to
reserved category who get selected in the open competition
on the basis of their own merit have right to be included in the
                                                                        F
general list/unreserved category and not to be counted against
the quota reserved for Scheduled Caste. This was recognized
by the Constitutional Bench judgment of this Court in Indira
Sawhney {supra) and has been followed in series of judgments
thereafter. Thus, when certain persons belonging to reserved
category get selected in open competition on the basis of their         G
merit, they are not to be counted in the reserved category
against the reserved category quota. It is open to the authorities
to fill the posts meant for reserved category candidates from
amongst the persons in such categories after excluding those
who have found their place in general merit. As a fortiori, while       H
    1144    SUPREME COURT REPORTS                  [2013) 11 S.C.R.


A calculating the limit of 50% reservation, those candidates
  belonging to reserved category who have found their place on
  the basis of their merit competing with general candidates are
  not to be taken into consideration. It is also not in dispute that
  such OBC/SC candidates who have been included in general
B category have come in that category on their own merit with no
  relaxation of the eligibility level i.e. percentage of marks.
  However, the objection of Mr. Lahoti, learned counsel for the
  petitioner, was to the method of counseling which was adopted
  in the present case as that has come, no doubt, above to the
c persons in reserved categories. He submitted that as per para
  4 of the counseling letter choice was given to SC/ST/OBC
  candidates who had taken admission in the open competition,
  to opt for a better Institution of their choice for which he/she
  would have been eligible as per the rules of reservation. This,
0 according to him, was impermissible as once a candidate in
  reserved category had taken admission under the open
  competition, he could not have been given a choice for better
  Institution on the premise that he/she will be governed by Rules
  of reservation. For this reason, he took strong objection to the
  note appended to para 4 of the counseling letter as well which
E facilitated this process. t-:te, thus, submitted that the counseling
  letter/circular was opposed to the provision made in the
  prospectus and was also contrary to the judgment of this Court
  in Union of India vs. Ramesh Ram & Ors. (2010) 7 SCC 234.
F      16. Learned counsel for the respondent, on the other hand,
  maintained that 50% quota had not been breached and what
  was done in fact was inter se adjustment among those who
  belong to reserved class i.e. those who were selected on their
  own merit and found their way into general category vis-a-vis
G those who were admitted on the basis of reservation provided
  in the respective reserved categories. He argued that this was
  necessary as otherwise those persons from reserved category
  who was more meritorious would be in a disadvantageous
  position vis-a-vis those who secured admission on the basis
H of relaxed standard under the reserved quota meant for them.
     SAMTA AANDOLAN SAMITI v. UNION OF INDIA                     1145
                  [A.K.SIKRI, J.]

 His submission was that this was approved by this Court in the           A
 case of Yoganand Vishwasrao Patil vs. State of Maharashtra
 (2005) 12 sec 311.
      17. We have considered the submissions of counsel of
 both the parties. At the outset, we would like to point out that in
                                                                          B
 the present case, we are dealing with the case of admission
 with medical course, and the position which we are going to
 explain in the subsequent paragraphs is confined to cases of
 admissions and not appointment into the service under the
 Government. Further, this applies only to MBBS Course and
 not Post Graduate Courses. Further, we are concerned herein              C
 admission process in Seven AllMS only and the position
 explained does not relate to those cases where their
 admissions are in different colleges.
       18. With this clarification, we proceed to deal with the           0
 issue.
        19. 1t is stated at the cost of the repetition that those
  members who belong to reserved category but get selected in
  the open competition on the basis of their own merit have a
  right to be included in the general/unreserved category. Such           E
  MRC not to be included in the quota reserved for Scheduled
  Caste etc. It is an admitted position that if these persons are
  excluded, the respondents have not exceeded the quota meant
  for reserved category. The respondents, at the time of
  counseling, have only accorded a higher/better choice to these          F
  meritorious reserved candidates (MRC) who got
  recommended against general/unreserved seats vis-a-vis those
  reserved category candidates who are accommodated against
  their quota. It is, therefore, an inter-se adjustment between the
  two kinds of persons belonging to reserved category. In their           G
  inter-se merit, these persons who have been able to find their
, place in general list on account of their merit are definitely better
  placed than those candidates who are selected in the reserved
  category, though both types of candidates belong to reservec;l
  category. Thus, if between these two categories of persons              H
    1146    SUPREME COURT REPORTS                [2013) 11 S.C.R.


A belonging to same class, higher choice is not given to the
  persons who are better in merit viz. the MRCs, it would clearly
  be injustice to them. This was precisely the issue which was
  referred for decision to the Constitution Bench in the case of
  Ramesh Ram (supra). In paragraph 3 of the judgment, the
B Constitution Bench stated the question which was referred for
  its decision and, the same reads as follows:
        "Whether candidates belonging to reserved category, who
        get recommended against general/unreserved vacancies
        on account of their merit (without the benefit of any
c       relaxation/concession), can opt for a higher choice of
        service earmarked for reserved category and thereby
        migrate to reserved category:"
       20. In the light of the submissions made by the counsel for
D the parties, the Court framed three questions which had arisen
  for consideration and the same are as under:
              I.Whether the reserved category candidates who
        were selected on merit (i.e. MRCs) and placed in the list
        of general category candidates could be considered as
E       reserved category candidates at the time of "service
        allocation"?
               II.Whether Rules 16(2),(3),(4) and (5) of the CSE
        Rules are inconsistent with Rule 16(1) and violative of
        Articles 14, 16(4) and 335 of the Constitution of India?
F
              Ill.Whether the order of the Central Administrative
        Tribunal was valid to the extent that it relied on Anurag
        Patel vs. U.P.Public Service Commission (which in turn
        had referred to the judgment in Ritesh R.Sah v.
G       Dr.Y.L.Yamul, which dealt with reservations for the purpose
        of admission to postgraduate medical course); and
        whether .the principles followed for reservations in
        admissions to educational institutions can be applied to
        examine the constitutionality of a policy that deals with
H       reservation in civil services."
    SAMTAAANDOLAN SAMITI v. UNION OF INDIA                 1147
                [A.K.SIKRI, J.]
       21. Dealing with the first question which directly arises in A
 the present case, the Court clarified .that a distinction is to be
 maintained between the cases dealing with the admission to
 educational institutions and appointment to a service. The Court
 accepted the general proposition that such a course of action
 affords a meritorious reserved candidates (MRC), the benefit s
 of reservation in so far as service allocation is concerned, if
 this is not done, lesser meritorious reserved candidates would
 be able to secure better discipline. Therefore, this course of
 action preserves and protects inter-se merit amongst the
 reserved candidates.                                               c
       22. No doubt, while doing so, the Court was of the opinion
 that such meritorious reserved candidates (MRC) who avail the
 benefit of Rule 16(2) of the Civil Services Examination Rul~s
 (which permitted 1such inter-se transfer) and are eventually
 adjustment in the reserved category, they should be counted D
 part of reserved category for the purpose of computing
 aggregate reservation quota. However, it was categorically
 stated that this proposition applies when there is an
 appointment to a service under the State and categorically
 excluded the cases of admission in educational institutions. In E
 so far as admission in educational institutions is concerned,
 such a MRC was to continue to be treated as belonging to
 general category, .Jvhich position he attained because of his
 initial merit. The Court noted that this was so held in Ritesh
 R.Sah v. Dr. Y.L. Yamul (1996) 3 SCC 253.                        F
       23. The question in that case was whether a reserved
  category candidate who is entitled to be selected for admission
  in open competition on the basis of his/her own merit should
  be counted against the quota meant for the reserved category
  or should he be treated as a general candidate. The Court G
  reached the conclusion that when a candidate is admitted to
  an educational institution on his own merit, .then such admission
  is not to be counted against the quota reserved for Schedule
. Castes or any other reserved category. It was so held in the
  fdU9Viing words:                                                  H
        1148     SUPREME COURT REPORTS                  [2013] 11 S.C.R.


    A       " ...... In view of the legal position enunciated by this Court
            in the aforesaid cases the conclusion is irresistible that a
            student who is entitled to be admitted on the basis of merit
            though belonging to a reserved category cannot be
            considered to be admitted against sets reserved for
    B       reserved category. But at the same time the provisions
            should be so made that it will not work out to the
            disadvantage of such candidate and he may not be placed
            at a more disadvantageous position than the other less·
            meritorious reserved category candidates. The aforesaid
            objective can be achieved if after finding out the
    c       candidates from amongst the reserved category who
            would otherwise come in the open merit list and then
            asking their option for admission into the different colleges
            which have been kept reserved for reserved category and
            thereafter the cases of less meritorious reserved category
    D       candidates should be considered and they be allotted
            seats in whichever colleges the seats should be available.
            In other words, while a reserved category candidate
            entitled to admission on the basis of his merit will have
            the option of taking admission in the colleges where a
    E       specified number of seats have been kept reserved for
            reserved category but while computing the percentage of
            reservation he will be deemed to have been admitted as
            an open category candidate and not as a reserved
            category candidate."
    F
           24. Since, we are concerned with the admission to
      medical course, aforesaid judgment squarely applies to the
      present case. Thus we find that neither upper limit of 50%
      reservation is breached, nor any rights of the petitioners are
    G violative or the action of the respondents have been to their
      prejudice in any manner. Thus, we do not find any merit in the
      present petition, which is accordingly dismissed. No costs.

        8.8.B.                                  Writ Petition dismissed.

    H




)