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Thursday, July 25, 2013

whether reservation was inapplicable to specialty and super-specialty faculty posts in the All India Institute of Medical Sciences, hereinafter referred to as “AIIMS”.= While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/ institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.” the Nine-Judge Bench while discussing the provisions of Article 335 also observed that there were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such situations, it cannot be advised to provide for reservations. In the paragraph following, the position was made even more clear when Their Lordships observed that they were of the opinion that in certain services in respect of certain posts, application of rule of reservation may not be advisable in regard to various technical posts including posts in super specialty in medicine, engineering and other scientific and technical posts. 19. We cannot take a different view, even though it has been suggested that such an observation was not binding, being obiter in nature. We cannot ascribe to such a view since the very concept of reservation implies mediocrity and we will have to take note of the caution indicated in Indra Sawhney's case. While reiterating the views expressed by the Nine-Judge Bench in Indra Sawhney’s case, we dispose of the two Civil Appeals in the light of the said views, which were also expressed in Dr. Jagadish Saran's case, Dr. Pradeep Jain's case, Dr. Preeti Srivastava's case. We impress upon the Central and State Governments to take appropriate steps in accordance with the views expressed in Indra Sawhney's case and in this case, as also the other decisions referred to above, keeping in mind the provisions of Article 335 of the Constitution. 20. There will be no order as to costs.

                             Reported in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40578
                                    REPORTABLE


                        IN THE SUPREME COURT OF INDIA



                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 4500 of 2002



   1


2 FACULTY ASSOCIATION OF AIIMS                  … APPELLANT



                 VS.



   2 UNION OF INDIA & ORS.                             … RESPONDENTS



                                    WITH


                        CIVIL APPEAL NO. 5119 OF 2002







                               J U D G M E N T



   ALTAMAS KABIR, CJI.


   1.    When Special Leave Petition (Civil) No. 2106 of 2002, filed by the
   Faculty Association of AIIMS, was taken  up  for  consideration,  notice
   thereupon was issued by a Bench of Two-Judges and it was stipulated that
   any appointment to be made, after the order  was  passed  in  accordance
   with the reservation policy, would only be  tentative  in  nature  until
   further orders.
When the Appeal  was  taken  up  for  hearing  on  20th
   February, 2003, along with Civil Appeal No. 5119  of  2002,  considering
   the important nature of the issues involved  for  determination  in  the
   said cases, as also the recurring nature of the problem, it was  thought
   appropriate that the matters be heard by a larger Bench.
Thereafter, on
   12th February, 2004, a Bench of Three-Judges headed by the Chief Justice
   was of the view that the matters involved substantial questions  of  law
   as to the interpretation of the Constitution and  were  required  to  be
   heard by a Bench of Five-Judges.
It is pursuant to such direction  that
   the matter appeared before the Bench of Five-Judges on several occasions
   and ultimately they were listed before a Bench  of  Five-Judges  on  2nd
   July, 2013.


   2.   Although the matter is now before a Bench of five Judges, the terms
   of reference are not very clear.
From what we have been able to  gather
   from the pleadings and the judgment of the Division Bench  of  the  High
   Court,  the  question  to  be  considered  is
whether  reservation  was inapplicable to specialty and super-specialty faculty posts in  the  All India Institute of Medical Sciences, hereinafter referred to as “AIIMS”.
    Faced with the decisions of this Court in the case of Indra Sawhney Vs.
   Union of India & Ors. [(1992) Supp. (3) SCC 215]; Jagdish Saran  &  Ors.
   Vs. Union of India & Ors. [(1980) 2 SCR 831]; and Dr. Pradeep Jain  etc.
   Vs. Union of India & Ors. etc. [(1984) 3 SCR 942],
wherein  reservation
in admission to specialty and super-specialty  courses  was disallowed, the Division Bench of the High Court  confined  itself  to the  limited issue, namely, 
whether reservation policy was inapplicable  for  making appointments to the entry level faculty post of Assistant Professor  and to super specialty posts and also whether the  resolutions  adopted  by AIIMS on 11.1.1983 and 27.5.1994 were liable to be struck down.


   3.    Appearing  for  the  Petitioner,  Mr.  P.P.  Rao,  learned  Senior
   Advocate, firstly referred to the statement of objects  and  reasons  of
   the All India Institute of Medical Sciences Act, 1956, which provides as
   follows :


      “For improving professional competence among medical practitioners, it
      is necessary to place a high standard of medical education, both post-
      graduate and under-graduate, before all  medical  colleges  and  other
      allied institutions in the country.  Similarly, for the  promotion  of
      medical research it is necessary that the country should attain  self-
      sufficiency in post-graduate medical education.  These objectives  are
      hardly capable of realisation unless facilities of a very  high  order
      for  both  undergraduate  and  post-graduate  medical  education   and
      research are provided by a central authority in one place.   The  Bill
      seeks to achieve these ends by the establishment in New  Delhi  of  an
      institution under the name  of  the  All-India  Institute  of  Medical
      Sciences.  The Institute will develop patterns of teaching  in  under-
      graduate and post-graduate medical education in all its branches so as
      to demonstrate a high standard of medical  education  to  all  medical
      colleges and other allied institutions, will provide facilities  of  a
      high order for training of personnel  in  all  important  branches  of
      health activities  and  also  for  medical  research  in  its  various
      aspects.  The Institute will have the power to grant medical  degrees,
      diplomas and other academic distinctions  which  would  be  recognised
      medical degrees for the purpose of the  Indian  Medical  Council  Act,
      1933.”





   4.   Mr. Rao also referred to Section 5 of the Act  which  declared  the
   institute to be an institution of national importance.  As  pointed  out
   by Mr. Rao, Section 13 of the Act is in line with the objects for  which
   the institute was created and Section 14 deals with the functions of the
   institute relating to the academic aspects of the institutes's functions
   as a teaching institute.




   5.   Mr. Rao submitted that the question had earlier been gone into  and
   considered in Indra Sawhney's  case (supra), wherein  while  considering
   the question of reservation the Bench also took into  consideration  the
   provisions of Article 335 of the Constitution regarding  the  claims  of
   Scheduled Castes and Scheduled Tribes to services and posts.  
Referring
   to the concurring Judgment of Jeevan Reddy, J., learned counsel referred
   to Paragraphs 838 and 839   in  particular  and  the  observations  made
   therein.  Since Paragraph 838 places in focus the view of the Nine-Judge
   Bench, the same is extracted hereinbelow:



       “838. While on Article 335, 
we are of  the  opinion  that  there  are certain services and positions 
where either on account of the  nature of duties attached to them or the level (in the hierarchy)  at  which they obtain, merit as explained hereinabove, alone counts.   
In  such situations, it may not be advisable to provide for reservations.  
For example,   
technical    posts    in    research    and    development
organisations/departments/ institutions, in specialities  and  super-specialities in medicine,  engineering  and  other  such  courses  in physical sciences and mathematics, in defence  services  and  in  the  establishments connected therewith.  Similarly, in the case of  posts at the higher echelons e.g., Professors  (in  Education),  Pilots  in  Indian Airlines and Air India, Scientists and Technicians in  nuclear  and  space  application,  provision  for  reservation  would  not  be
  advisable.”





   6.   In fact, both in Paragraphs 838 and 839,  
while  specifying  areas,
   where it may not be advisable to put reservation, the learned Judge  has included posts in research and  development  organisations/  departments /institutions, in specialties and super-specialties  in  medicine.   
The
   same observation is repeated in Paragraph 839, wherein, categorically it  was held that the Bench was of the opinion that in certain services  and  in respect of certain posts, application of the rule of reservation  may  not be advisable and once again included as the fourth item –  posts  in super-specialties in medicine,  engineering  and  other  scientific  and  technical subjects. 
 Mr. Rao  submitted  that  as  far  as  medicine  is
   concerned “super-specialty” means “post doctoral courses”.


   7.   Mr. Rao submitted that in the instant case, reservation  was  being
   provided for up to the doctoral stage, but at the stage  of  recruitment
   for a post doctoral  courses  and  research  at  the  initial  stage  of
   candidates were required to sit for a written examination and those  who
   are successful, were, thereafter, recruited in the different disciplines
   of teaching.  Mr. Rao submitted that the problem begins  at  that  stage
   when posts are thereafter, reserved in  respect  of  different  courses.
   Mr. Rao submitted that once a candidate qualified for recruitment in the
   different  posts  of  faculty  beginning  from  the  post  of  Assistant
   Professor onward, there was no further  logic  in  thereafter  reserving
   posts for candidates from the Scheduled Castes and Scheduled Tribes  and
   OBC communities.  Mr.  Rao  submitted  that  at  that  level  of  super-
   specialty, the question  of  reservation  ought  not  to  arise  as  was
   observed by the Nine-Judge Bench in Indra Sawhney's case (supra).




   8.   Mr. Rao submitted that while Article 16(4) empowers  the  State  in
   making provisions for reservation of appointments or posts in favour  of
   any backward class of citizens which, in the opinion of the  State,  was
   not adequately represented in the services under  the  State,  the  same
   would have to be read and understood in the manner  indicated  in  Indra
   Sawhney's case (supra).   The  learned  Senior  counsel  submitted  that
   although definite directions have not been given in Paragraphs  838  and
   839 of the judgment in Indra Sawhney's case  (supra),  the  observations
   made therein were guidelines for the Government and  institutions,  such
   as AIIMS, to follow, in order to provide the best  candidates  available
   with the opportunity of going  in  for  super-specialties  which  entail
   higher degree of skill and where no compromise in quality and  expertise
   could be entertained.




   9.   In support of his aforesaid submissions, Mr. Rao also  referred  to
   the decision of a Three-Judge Bench in Dr. Jagadish  Saran  &  Ors.  Vs.
   Union of India [(1980) 2 SCC 768], wherein in Paragraphs 21, 22 and  23,
   Krishna Iyer, J., writing the judgment, spoke about reservation and what
   he referred as wholesale  banishment  of  proven  ability  to  open  up,
   hopefully, some dalit talent, total sacrifice of excellence at the altar
   of equalisation – when the Constitution mandates for every one  equality
   before and equal protection of the law  –  may  be  fatal  folly,  self-
   defeating educational technology and anti-national  if  made  a  routine
   rule of State  Policy.   His  Lordship  further  observed  that  a  fair
   preference, a reasonable reservation, a just  adjustment  of  the  prior
   needs and real potential of the weak with the partial recognition of the
   presence of competitive merit – such is the dynamics of  social  justice
   with animates the three egalitarian articles of the  Constitution.   The
   learned Judge goes on to observe in Paragraph 23 that flowing  from  the
   same stream of equalism is another limitation.  The basic medical  needs
   of a region or the preferential push justified for a  handicapped  group
   cannot prevail in the same measure at the highest  scales  of  specialty
   where the  best  skill  or  talent,  must  be  handpicked  by  selecting
   according to capability.  The learned Judge  went  on  to  restrict  the
   Indian Medical Council's recommendations which indicated  that  students
   of post-graduate courses therein should be selected strictly  on  merit,
   judged on the basis of academic record in the undergraduate course.




   10.  The next decision referred to by Mr. Rao is a short judgment in the
   case of Dr. Fazal Ghafoor Vs. Union of India & Ors.  [(1988)  Supp.  SCC
   794], which was a decision by two Judges, wherein, reliance  was  placed
   on the decision of this Court in the case of Dr. Pradeep Jain & Ors. Vs.
   Union of India & Ors. [(1984) 3 SCC 654], wherein, a  Three-Judge  Bench
   of this Court, while considering the  question  of  reservation  in  the
   light of the aspirations of the citizens of India, as contained  in  the
   Preamble to  the  Constitution,  observed  that  while  reservation  was
   acceptable  with  regard  to   the   undergraduate   course,   different
   considerations will have to prevail when it  came  to  the  question  of
   reservation based on residents’  requirement  within  the  State  or  on
   institutional preference for admission  to  the  post-graduate  courses,
   such as MD, MS and the like.  Following the  decision  in  Dr.  Jagadish
   Saran's case (supra), Their Lordship  observed  that  “there  we  cannot
   allow excellence to be compromised by any  other  consideration  because
   that would  be  detrimental  to  the  interest  of  the  nation.   Their
   Lordships also observed that if equality of opportunity for every  other
   person in the country is the constitutional guarantee, merit must be the
   test when choosing the best.




   11.  Mr. Rao lastly referred to the Constitution Bench decision of  this
   Court in Dr. Preeti Srivastava Vs. State of M.P.  [(1999)  7  SCC  120],
   which was a writ petition heard along with several other writ  petitions
   on various aspects  of  reservation.   Mr.  Rao  pointed  out  that  the
   Constitution Bench also referred to the decision in Dr.  Pradeep  Jain’s
   case (supra) and also Dr. Jagadish Saran’s  case  (supra),  referred  to
   hereinbefore, in expressing its concurrence  with  the  views  expressed
   therein.  In Paragraph 25  of  the  judgment,  Sujata  V.  Manohar,  J.,
   speaking for the Constitution Bench, observed  that  the  specialty  and
   super-specialty courses in medicine also entailed on-hand experience  of
   treating or operating on patients in the  attached  teaching  hospitals.
   Those undergoing these programmes are expected to occupy  posts  in  the
   teaching hospitals or discharge duties  attached  to  such  posts.   The
   elements of Article 335, therefore, colour the selection  of  candidates
   for these course and the rules framed for this  purpose.   Consequently,
   in Paragraph 26, it was  further  observed  that  in  the  premises  the
   special provisions for SC/ST candidates – whether reservations or  lower
   qualifying marks – at the specialty level have  to  be  minimal.   There
   cannot, however, be any such special provisions at the level  of  super-
   specialties.  In  keeping  with  its  findings  the  Constitution  Bench
   ultimately held that since no relaxation is permissible at  the  highest
   levels in the medical institutions, the Petitioners therein  were  right
   when they contended that the reservations made for the Scheduled  Castes
   and Scheduled Tribes candidates for admission to  DM  and  MCH  courses,
   which  are  super-specialty  courses,  in  not   consistent   with   the
   constitutional  mandate  under  Articles  15(4)  and  16(4),  and   that
   Regulation 27 of the Post Graduate Institute of  Medical  Education  and
   Research, Chandigarh Regulations, 1967, would not apply at the levels of
   admissions to DM and MCH courses.


   12.  Mr. Rao submitted that the Health Survey and Development Committee,
   popularly known as the Bhore Committee, in its report published in  1946
   recommended the establishment of a national  medical  centre  at  Delhi,
   which  would  concentrate  on  training,  well-qualified  teachers   and
   research workers in order  that  a  steady  stream  of  those  could  be
   maintained to meet the needs of the rapidly expanding health  activities
   throughout the country.  It seems that pursuant to the said  report  and
   after attainment of Independence, the Union Ministry of Health proceeded
   to implement the aforesaid idea resulting in the enactment  of  the  All
   India Institute of Medical  Sciences  Act,  1956,  with  the  All  India
   Institute of Medical Sciences as an autonomous institution  of  national
   importance and defined its  objectives  and  functions.   Various  other
   decisions, including the decisions in Saurabh  Chaudri  and  Others  Vs.
   Union of India and Others [(2003) 11 SCC 146] and T.M.A. Pai  Foundation
   Vs. State of Karnataka [(2002) 8 SCC 481] were referred to by Mr. Rao to
   urge that the observations made in Indra Sawhney's  case as well  as  in
   Preeti  Srivastava’s  case  were  binding,  though  in  the  nature   of
   observations made in the judgments.  Mr. Rao referred to the decision of
   this Court in Commissioner of Income  Tax,  Hyderabad-Deccan  Vs.  Vazir
   Sultan and Sons [1959 Supp (2) SCR 375], wherein a Bench of Three-Judges
   examined the doctrine of “obiter dicta” and arrived at  a  finding  that
   even obiter at times has the force of law declared by the Supreme  Court
   under Article 141 of the Constitution.  Mr. Rao ended on the  note  that
   the introduction of the concept of reservation in specialty  and  super-
   specialty subjects or for the appointment of  faculty  in  AIIMS,  would
   defeat the very purpose for which the institute  was  established.   Mr.
   Rao also submitted that if excellence was to be achieved at the level of
   super-specialty disciplines, no  compromise  could  be  made  in  either
   imparting such education or recruiting persons  who  would  impart  such
   education at such level.


   13.  Dr. Rajiv Dhawan, learned Senior Advocate, who  appeared  in  Civil
   Appeal No. 5119 of 2002, submitted that the AIIMS Act  did  not  empower
   the Governing Body to impose reservation at any stage, much less at  the
   stage of super-specialty.  Referring  to  the  affidavit  filed  by  the
   Director of AIIMS, Dr. Dhawan submitted that the decision  of  the  High
   Court was contrary to the decision of this Court in Indra Sawhney's case
   and also in M. Nagaraj and Others Vs. Union of India and Others  [(2006)
   8 SCC 212] where it was held that there should be no reservation at  the
   super-specialty stage, and, in any event, the  same  would  have  to  be
   based  on  quantifiable  data.   Mr.  Rao  submitted  that  proportional
   representation and not adequacy, as understood in Indra  Sawhney’s  case
   or even in M. Nagaraj’s case, has been resorted to in the  instant  case
   in the teeth of the said two  cases.   While  making  reference  to  the
   concept of creamy layer, Dr. Dhawan urged that “equality” does not  mean
   that reservation had to be applied in each and every  case  to  maintain
   such equality, for example, the creamy layer concept as  was  considered
   by this Court in E.V. Chinnaiah Vs. State of A.P. and Others  [(2005)  1
   SCC 394].


   14.  Appearing for the Institute, Mr. Mehmood Pracha,  learned  Advocate
   contended that people from Backward classes and the Scheduled Castes and
   the Scheduled Tribes were often discriminated against and even in  spite
   of having excellent qualities, they were not  provided  with  sufficient
   opportunities to come up  to  the  standards,  as  contemplated  by  the
   various medical colleges and, in particular, the All India Institute  of
   Medical Sciences, which is an institution of national  importance.   Mr.
   Pracha urged that although reservation at all different  levels  of  the
   Institute had  been  introduced,  for  quite  some  time,  there  is  no
   available data to indicate that there has been any deterioration in  the
   quality of medical services being provided in AIIMS.  On the other hand,
   AIIMS was one of the most sought after medical institute, not  only  for
   promotion and research  work,  but  also  for  the  purpose  of  medical
   education.  Taking a leaf out of Hindu mythology,  Mr.  Pracha  drew  an
   analogy from the story of Eklavya and Arjun in  the  Mahabharta.   While
   Arjun belonged to the princely class, Eklavya  was  a  tribal  boy,  who
   without actual training  or  guidance  from  any  teacher,  by  his  own
   efforts, excelled in the art of archery.   The  famous  Dronacharya  was
   Arjun’s teacher in archery and Eklavya had acquired the skills  that  he
   had by merely watching Dronacharya guiding Arjun.  However, when it came
   to an archery competition, Dronacharya, who was  more  or  less  certain
   that, if allowed an opportunity,  Eklavya  would  possibly  beat  Arjun,
   requested Eklavya that if he really loved and respected him,  he  should
   give his right thumb as gurudakshina to his master.   Eklavya  dutifully
   obeyed the person he had chosen as his master  and  was  thus  prevented
   from competing in the competition which Arjun won.  Mr. Pracha submitted
   that simply  because  Eklavya  was  a  tribal  boy  he  was  denied  the
   opportunity  of  competing  with  Arjun,  despite  his  brilliance   and
   excellence.  Mr. Pracha submitted that there are many more  Eklavyas  in
   today’s society, who, if  not  suppressed  and  given  a  chance,  would
   possibly even  outshine  those  belonging  to  the  higher  echelons  of
   Society.


   15.  Mr. Pracha strongly supported the concept  of  reservation  at  all
   stages, including at the super-specialty stage.  He urged  that  at  the
   entry level for recruitment to the faculty posts, which were all treated
   as super-specialty disciplines after the Post Graduate course, a  member
   of the Backward Classes had  to  sit  for  an  examination  with  others
   without any separate weightage given for reservation.  It is only  after
   having passed the written examination along with other candidates, was a
   member of the Backward Classes appointed in a teaching post on the basis
   of reservation.  Mr. Pracha submitted that this was done only  with  the
   intention of giving such a candidate  an  opportunity  of  reaching  the
   level of his other fellow faculty members.  Mr. Pracha submitted that  a
   little support was intended to help people from the Backward communities
   to make their presence felt in  academia,  so  as  to  encourage  others
   similarly situated.  Mr. Pracha also relied  on  the  decision  of  this
   Court in Indra Sawhney’s case, in support of his contention that members
   of the Scheduled Castes and Scheduled Tribes and Other Backward  Classes
   were not adequately represented and  for  the  said  purpose  a  certain
   amount of reservation was necessary so  that  they  could  compete  with
   others and excel in academics.  Strongly supporting the  policy  adopted
   by the Institute, Mr. Pracha submitted that the Civil  Appeal  filed  by
   the Faculty of Association of AIIMS was liable to be dismissed.


   16.  Appearing for the Union of India,  the  learned  Solicitor  General
   repeated the submissions made by Mr. Pracha and added that the State had
   a constitutional duty to empower certain sections of society who  needed
   help to uplift themselves from their particular situations.  The learned
   Solicitor General submitted that Article 46 of the Constitution,  though
   a Directive Principle, was  in  the  nature  of  a  guideline  for  good
   governance to the Government of the day.  The said Article was  intended
   to help the depressed classes, who otherwise had little  opportunity  of
   raising their standards.  Faced with the question as to  when  initially
   the Central Government had opposed the doctrine of  reservation  on  the
   ground of excellence in education, why was it necessary in 1972 to  take
   a different stand and come out in support of reservation, even in super-
   specialty courses, the learned Solicitor General urged that  the  policy
   was based not  on  the  question  of  adequacy,  but  as  a  measure  of
   empowerment for the Backward Classes.  While referring to  the  decision
   in M. Nagaraj’s case, which has been referred to by  the  other  learned
   counsel,  the  learned  Solicitor  General  contended  that   with   the
   introduction of Article 16(4A) in the Constitution, the decision arrived
   at in M. Nagaraj’s  case,  would  have  to  be  read  differently.   He,
   however, also urged that there  was  no  constitutional  prohibition  to
   impose reservation, if it was felt necessary  to  benefit  the  Backward
   Classes, who had little or no support to help them  improve  their  lot.
   Referring to the decisions of this Court in Dr.  Jagadish  Saran's  case
   and Dr. Pradeep Jain’s case, which have been  referred  to  hereinabove,
   the learned Solicitor General urged that  the  direction  given  in  Dr.
   Pradeep Jain’s case that reservation should not exceed 70%, did not take
   into consideration Article 16(4A) of the Constitution, while giving such
   directions.


   17.  Although, the matter has been argued at some length, the main issue
   raised regarding reservation at the super-specialty  level  has  already
   been considered in Indra Sawhney’s case (supra) by a Nine-Judge Bench of
   this Court. Having regard to such decision, we are not inclined to  take
   any view other than the view expressed by the Nine-Judge  Bench  on  the
   issue.  Apart from the decisions rendered by this Court in Dr.  Jagadish
   Saran's case (supra) and Dr. Pradeep Jain’s case (supra), the issue also
   fell for considerate in Preeti Srivastava’s case (supra) which was  also
   decided by a Bench of Five Judges.  While in Dr. Jagadish  Saran's  case
   (supra) and in Dr. Pradeep Jain’s case (supra) it was categorically held
   that there could be no compromise with  merit  at  the  super  specialty
   stage, the same sentiments were also expressed  in  Preeti  Srivastava’s
   case  (supra)  as  well.  In  Preeti  Srivastava’s  case  (supra),   the
   Constitution Bench had an occasion to consider Regulation 27 of the Post
   Graduate  Institute  of  Medical  Education  and  Research,   Chandigarh
   Regulations, 1967, whereby 20% of seats in every course of study in  the
   Institute was to be reserved for candidates belonging to  the  Scheduled
   Castes, Scheduled Tribes or other categories of persons,  in  accordance
   with the general rules of the Central Government promulgated  from  time
   to time.  The Constitution Bench came to the conclusion that  Regulation
   27 could not  have  any  application  at  the  highest  level  of  super
   specialty as this would defeat the very object  of  imparting  the  best
   possible  training  to  selected  meritorious  candidates,   who   could
   contribute to the advancement of  knowledge  in  the  field  of  medical
   research and its applications.   Their Lordships ultimately went  on  to
   hold that there could not  be  any  type  of  relaxation  at  the  super
   specialty level.


   18.  In paragraph 836 of the judgment in Indra Sawhney’s  case  (supra),
   it was observed that while the relevance and significance  of  merit  at
   the stage of initial recruitment cannot be ignored, it  cannot  also  be
   ignored that the same idea of reservation implies selection  of  a  less
   meritorious person. It was also observed that at the same  time  such  a
   price would have to be paid if  the  constitutional  promise  of  social
   justice was to be redeemed.  However, after making such  suggestions,  a
   note of caution was introduced in the very next paragraph in  the  light
   of Article 15 of the Constitution.
A  distinction  was,  however,  made
   with regard to the provisions of Article 16 and it was held that Article
   335 would be relevant and it would not be permissible not  to  prescribe
   any minimum standard at all.
Of course, the said observation  was  made
   in the context of admission to medical colleges and reference  was  also
   made to the decision in State of M.P. Vs. Nivedita Jain  [(1981)  4  SCC
   296],
where admission to medical courses was regulated  by  an  entrance
   test.
It was  held  that  in  the  matter  of  appointment  of  medical
officers, the Government or the Public Service Commission would  not  be entitled to say that there would not be  minimum  qualifying  marks  for Scheduled Castes/Scheduled Tribes candidates while prescribing a minimum for others. 
In the very  next  paragraph,  the  Nine-Judge  Bench  while
   discussing the provisions of Article 335 also observed that  there  were certain services and posts where either on  account  of  the  nature  of duties attached to them or the level in  the  hierarchy  at  which  they stood, merit alone counts.
In such situations, it cannot be advised  to  provide for reservations.  
In the paragraph following, the position  was
   made even more clear when
Their Lordships observed that they were of the
 opinion  that  in  certain  services  in  respect  of   certain   posts,
 application of rule of reservation may not be  advisable  in  regard  to various technical posts including posts in super specialty in  medicine, engineering and other scientific and technical posts.


   19.  We cannot take a different view, even though it has been  suggested
   that such an observation was not binding, being obiter in  nature.    We
   cannot ascribe to such a view since  the  very  concept  of  reservation
   implies mediocrity and  we  will  have  to  take  note  of  the  caution
   indicated  in  Indra  Sawhney's  case.   While  reiterating  the   views
   expressed by the Nine-Judge Bench in Indra Sawhney’s case, we dispose of
   the two Civil Appeals in the light of the said views,  which  were  also
   expressed in Dr. Jagadish Saran's case, Dr.  Pradeep  Jain's  case,  Dr.
   Preeti Srivastava's  case.   We  impress  upon  the  Central  and  State
   Governments to take appropriate  steps  in  accordance  with  the  views
   expressed in Indra Sawhney's case and in this case, as  also  the  other
   decisions referred to above, keeping in mind the provisions  of  Article
   335 of the Constitution.


   20.  There will be no order as to costs.


                                                     …………………………………………………CJI.

                                          (ALTAMAS KABIR)





                                                     ………………………………………………………J.
                                   (SURINDER SINGH NIJJAR)






                                                     ………………………………………………………J.

                                       (RANJAN GOGOI)







                                                     ………………………………………………………J.

                                                 (M.Y. EQBAL)







                                                     ………………………………………………………J.

                                       (VIKRAMAJIT SEN)

   New Delhi
   Dated: July 18, 2013.

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