1. These nineteen writ petitions are directed against the validity of G.O Ms. No. 1886, Health, dated 21st June 1963. W.P Nos. 857, 880, 908, 973 and 997 represented by Mr. P.A Choudary, as well as W.P Nos. 905, 922 and 956 represented by Mr. Babul Reddy, W.P No. 1015 of 1963 represented by Mr. Venkatramana Reddy and W.P No. 879 of 1963 represented by Mr. Audina rayana Reddy, related to one general question as to whether the above Government order conflicts with Articles 14, 15 and 19(1)(g) of the Constitution and if so whether the Government Order should be struck down. The above petitions as well as the other writ petitions also challenge the validity of the action taken. under the order on several other grounds which will be stated and dealt with at the appropriate place. I will refer to the affidavit and the counter in W.P No. 857 of 1963 which is typical of this batch of writs. At any rate, the counter filed in all these writs is almost identical.
2. The allegations in these writ petitions are that there are four Medical Colleges in the Andhra area which are maintained by the State of Andhra and the total number of medical seats available under the above Government Order after reserving 5 seats for the Government of India scholars, are 495. Of these, 5 per cent are reserved for candidates who have distinguished themselves in sports and extracurricular activities, 16 per cent for the scheduled castes and scheduled tribes, 25 per cent for backward classes, in accordance with the list of such classes appended to the rules, and 30 per cent for women. Apart from these, under rule 6, for the purposes of selection, the seats available for admission in the Andhra area of the State, after deducting the reservations specified in rule 2(i)(a), shall be allotted to the candidates belonging to the Andhra area only, provided, that a number of seats equal to the number of Andhra candidates who are selected for admission to the M.B.B.S course in the institutions in the Hyderabad City shall be reserved for Telangana candidates who are transferred to the Andhra region in exchange and the latter shall not be subject to any further selection. The Andhra area is divided into three groups of districts or regions as indicated therein and the reginal distribution of seats available for admission for the area after deducting the reservations specified in rule 2 shall be on the basis of the ratio of the population of each region to the total population of the area—Region I; comprising the Districts of Srikakulam and Visakhapatnam; region II comprising the districts of Guntur, Krishna, East Godavary and West Godavary; and Region III; comprising the districts of Nellore, Cuddapah, Kurnool, Anantapur and Chittoor. If, in any regionl there is deficiency in the number of candidates selected against the reserved quota for the region in favour of a particular category, the candidates of the same category in the other regions of the area, shall be considered for selection. There is again a reservation of ⅓rd of the total seats in favour of the Multipurpose and P.U.C students (in all categories put together) at least should be given to the multipurpose and senior Cambridge candidates and in case the multipurpose and senior Cambridge candidates fail to get at least one third of the seats (scheduled castes and tribes and women backward classes, general) the number should be made up by admitting corresponding number of multipurpose and senior Cambridge candidates who are otherwise qualified. Rules 7-C (i) and 7-C (ii) are as follows.
(C) Marks.— (i) For purposes of selection to the integrated M.B.B.S course the aggregate of marks obtained by the candidate in the optional science subjects only equated to a maximum of 300) in the Pre-University or the Higher Secondary Examination shall be taken into account. When there is a tie, the aggregate marks obtained by the candidate in the optional subjects and english only (equated to a maximum of 400 i.e, 300 optional subjects and 100 (in English in the Pre-University or Higher Secondary Examination shall be taken into account.
Notes.— Admissions for the integrated M.B.B.S Course in the medicine would be made from the categories the Multipurpose, senior Cambridge and Pre-University Course candidates on merit basis subject to the conditions that one-third of the total seats (in all categories put together) at least should be given to multipurpose and Senior Cambridge candidates. In case the multipurpose and-Senior Cambridge Candidates fail to get at least one third of the seats (in all categories put together i.e, General, Backward classes, Scheduled castes and Tribes and women etc.) the number should be made up by admitting corresponding number of multipurpose and Senior Cambridge candidates who are otherwise qualified.
(ii) Only candidates, who have obtained not less than 45 per cent of total marks in all the subjects in the qualifying examination in respect of M.B.B.S course shall be considered as far as candidates belonging to the communities other than Scheduled Castes and Scheduled Tribes, this limit shall be reduced to 40 per cent. Apart from these reservations there is a reservation of five seats for Mysore Government. These are on a reciprocal basis and willingness, so that in fact no candidates from the Andhra area who is eligible to be admitted will suffer because of this rule and those only admitted to the Andhra Colleges or Mysore Colleges will be exchanged under Rule 2(ii). Similarly with respect to Kerala Government nominee, one seat is reserved for the nominee of the Andhra Government in one of the Medical Colleges of Kerala.
3. The main contention in the thirteen writ petitions is that the classifications of backward classes is solely based on caste and that the Government recently under the above impugned G.O have added two more castes at Nos. 84 and 85 viz., Telagas and Kapus of Circar districts and Settibalijis of all Districts, and Rayalaseema and the Districts of Nellore and Guntur, which by no means are said to be backward and are merely selected on the basis of caste without applying the indicia of social and educational backwardness, which is necessary to bring them under the exeeption envisaged by Article 15(4) and secondly, Christian converts from scheduled castes and tribes are also included in the socially and educationally backward classes here again taking caste as the only criterion and not the social and educational backwardness which are the requirements envisaged by Article 15(4). In some of the writ petitions, the reservation of 5 per cent, for sports and extracurricular activities under Rule 3 is also challenged.
4. The petitioners in all the writ petitions are applicants to the Medical Colleges in the Andhra area and apprehend in spite of very high marks the rejection of a seat because of these reservations, which they say are unconstitutional.
5. The petitioners stated that more than 10 candidates belonging to the so called socially and educationally backward classes who had secured less than 70 per cent, (sic) marks or more, are getting seats under the impugned G.O which offends the fundamental rights guaranted under Articles 14, 15, 16 and 29(1)(g) of the Constitution of India and that the State Government acting in fraud of its powers had listed more than 119 castes which has been designated as socially and educationally backward classes. It was further submitted that the aforesaid 100 and odd groups are caste groupings based on the incident of birth and has no reference whatsoever to the social and economic position of those groups in the society, and that except in the case of scheduled castes, caste cannot be the basis of any State action. It is contended that the enumeration of 119 castes as backward classes enable any person, however, educationally advanced he might be for claiming the special benefits and similarly a person who does not belong to those castes but who is socially and educationally backward is not entitled to these benefits. For example, it was stated, that as socially and educationally backward class of caste, and on that basis, the members of that caste have been successfully competing for medical seats during all these years. Further the general education among the members of the Kapus caste is very widespread and a large number of members belonging to that caste to-day occupy several important posts in private and public service in the State and that the Government succumbing to political pressure had included that caste also in the list of socially and educationally backward classes. It was also averred that the division of the Andhra area into three regions is unconstitutional and opposed to the petitioners' fundamental rights guaranteed under Articles 14, 15, 16, and 19(i)(g) of the Constitution.
6. The counter of the respondent avers that it is a fact that the Government maintains a list of backward classes based on the social and educational backwardness of the caste and to these people 25 per cent, of the seats in the Government Medical Colleges are reserved. The reservations for these classes have been followed by the Government for a very long time and, is continued year after year as a matter of policy. This list is being revised periodically deleting certain classes from the list and adding certain other classes whenever it was found that particular class is socially and educationally forward as the case may be. Moreover the extent of reservation in this State for backward classes is also very much limited inasmuch as only 25 per cent, of the seats are reserved. Therefore they contend that the present classification of backward classes in this State is made in respect of castes and communities which are considered to be socially and educationally backward. It is further stated that the classification on the ground of residence is not prohibited either by Article 29(2) or Article 15(1) of the Constitution and that it does not amount to discrimination on the ground of place of birth. It is averred that the place of birth and domicile are two different concepts each with different import and that the rule in question makes a classification on geographical basis so that there may be a fair distribution of seats over all the regions, which classification it is submitted, was held valid by this Court as well as by the Supreme Court.
7. Out of the 495 seats, ignoring the reciprocal arrangements with the Mysore and Kerala Governments, the numerical reservations are: 25 for sportsmen, 79 for scheduled castes and tribes, 124 for socially and educationully backward classes, 148 for women making a total of 381 seats, which it is said is more than 50 per cent, reservation and which according to the latest decision of their Lordships of the Supreme Court in the Mysore case—Balaji v. State of Mysore . A.I.R 1963 S.C 649., offends the provisions of the Constitution and would be deemed to be regulated in fraud of exercise of the powers vested in the State Government. Learned Advocate-General on the other hand, says that what their Lordships of the Supreme Court were dealing with was only the reservations for the socially and educationally backward classes under Article 15(4) and the Schedule caste and Schdeule tribes which their Lordships indicated should not be more than 50 per cent, and if these alone are taken into consideration, they would not contravene the provisions, nor could it be said that these reservations are made in fraud of the powers.
8. The main questions, however, in this case are (1) whether the list of backward classes given in the annexure to the impugned G.O is based solely on considerations of caste; and (2) whether the Government has adopted any standard or method of determining the social and educational backwardness of the classes specified and if so, what is the material upon which it has acted. Neither the counter, nor anything placed before me shows that the Government has acted on any concrete and reliable data to determine the social and educational backwardness, nor has it held any enquiry to ascertain these conditions. Their Lordships of the Supreme Court were considering the G.O of the Mysore Government which was based upon an enquiry of a Committee constituted by that Government and on the data available before them, they had according to the principles laid down in that and the previous cases, held that the G.O was bad inasmuch as it offends Article 15(1) of the Constitution.
9. It is strenuously contended by Mr. Chaudhary and Mr. Babul Reddy before me that when an order is challenged on the ground of it offending the fundamental rights of the citizen, it is for the Government to support that order by placing material on record which it has and since in this case the Government by their counter have virtually admitted (as averred in their reply to the counter by the petitioner) that the list of clashes enumerated in the impugned G.O were based on caste: as such this G.O offends Article 14 and particularly Article. 15(1) of the Constitution which enjoins that the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them and it cannot be saved by clause (4) of that Article. Articles 15(1), 15(4) and 29(2) read as follows:—
“15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste sex, place of birth or any of them.
(4) Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens, or for the Scheduled Castes and the Scheduled Tribes.
29. (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”
10. It may be seen that while Articles 14 and 15 deal with equality before law and inhibit discrimination Article 29 gives protection to cultural and educational rights of all citizens.
11. Learned Advocate-General while not denying the force of the contention that if the social and educationally backwardness of the classes is only based on the caste they would offend Articles 15(1) and 29(2), submits that while classes are not to be equated with castes, they may coincide with castes. At any rate, they are not antithetical nor is there a conflict between classes and castes and that one category may include the other. He further submitted that when the Court is called upon to strike down an order or executive action, though it is justiciable, the Court should be satisfied that it is a fraud on the Constitution and when however it is a marginal case and the State is trying to protect the weaker sections of the community, that attempt cannot be declared to be a fraud of the powers. It is also pointed out that in this case the Government have been notifying the list of backward classes from even prior to the Constitution and this list has been in existence for a period of 25 years and consequently it would be for the petitioners to show whether or which of them are not backward classes. In so far as item 84—Settibalijas of all Districts and Rayalaseema and the Districts of Nellore and Guntur—added only by the G.O of this year, it will be for the Government to place necessary materials on record to show that they are socially and educationally backward and since having regard to the decision of their Lordships of the Supreme Court, this Court can delete those categories, but it would not be justified in striking down the entire G.O
12. It is to be remembered that our Constitution-makers embodied in Part IV of our Constitution certain directive principles of which Article 41 is general and Article 46 is particular. In the first of these Articles, they set out that the State shall within the limits of its economic capacity and development make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of underserved want; while in the latter they enjoined that the State shall promote with special care the educational and economic interest of the weaker sections of the people, and in particular of the Scheduled castes and the Scheduled tribes, and shall protect them from social injustice and all forms of exploitation. These and other directive principles have been embodied in our Constitution not as so many platitudes, but as directions of State policy in caring for the welfare, uplift and the general wellbeing of a great majority of our citizens, who require special and particular attention. These directive principles are variously described by some as a political manifesto and by the others as instruments of instruction, such as those issued to the former Governors-General and Governors of the colonies. But, in the main they serve as a reminder to those who exercise powers under the Constitution as paramount and compelling duty to look after the vital interests of those backward sections of the community of which there are many, so that their uplift can in the shortest possible time enable them to take part and pull their due weight in the functioning of a democratic system of government, which has been adopted by the Constitution of this country. These directive principles, however, have not any controlling or overriding effect on Article 15(1) or Article 29(2). The two principles that emerge from a reading of these articles are: (1) the State is under an obligation to protect the weaker sections of the community, which obligation is in the nature of a trust; and (b) that under Article 15(4) the State can make a special provision to protect the above classes.
13. Mr. Choudhary, however, contends that the protection envisaged in clause 9(4) of Article 15 can only be regulated by a law and not by executive action and cites several American cases in support of the proposition that education comes not under due process, but under the equal portection clause and that it is also one of the facts of liberty and if so, it must be regulated by a law. It is indisputable that decisions and opinions given or expressed in respect of provisions of law which are not in pari materia which the Courts are called upon to consider can be of little assistance. The problem of Scheduled castes or Scheduled tribes or of backward classes is not one which the framers of the American Constitution were called upon to tackle. While the right to have education may come within the ambit of personal liberty and is a fundamental right, there are special provisions embodied in our Constitution, whether originally or by subsequent amendments necessitated by pronouncements of Courts interpreting the then existing provisions which are an exception to this right. The XIV Amendment of the American Constitution that the State shall not deprive without due courses of law nor deny the equal protection of the laws, was not fettered with any exception or proviso to meet any special contingencies as confronted the framers of our Constitution. Article 14 of our Constitution embodies the ideal of equality in the Preamble and is in general terms while the succeeding Articles, 15, 16, 17 and 18 enact particular application of the rule and consequently Article 14 must be read with the other provisions which set out the ambit of the fundamental rights. The concepts of equality before law or equal protection of law or the guarantee of freedom or personal lliberty are not absolute. What they mean is that among equals the law should be equal and that like should be treated alike. There is a denial of any special privilege by reason of birth, creed, caste, race, religion or the like inherent in those words as also equal subjection of all individuals and classes to the ordinary law of the land. In dealing with the particular topic of education and the admission of students to educational institutions run or maintained by the State, the necessity to educate the great masses of individuals, the great disparity in the incomes of the various sections of the community, the social and educational backwardness of a class or classes of people, the scourge centuries-old prejudices and social ostracism of sections of our people like the Harijans who are included in the term Scheduled caste and yet other sections of the people who have lived without contact with civilization and in utter seclusion of their tribal life and the great paucity of educational institutions and the limits on the resources of the State, had all to be taken into consideration in imposing the limitations to the general guaranteed of fundamental rights. With none of these, the framers of the American Constitution were plagued. The case of Oliver Brown v. Board of Education of Topeka, was dealing with the segregation and denial of admission to Negro children, to State Laws requiring or permitting segregation according to the race, Warren, C.J, gave a quietus to the application of the doctrine of “separate but equal” in the field of Public Education which has been holding the field from 1896 when Plessy v. Rerguson . 41 L.Ed 256. was first written. It was held that the segregation of children in the public schools solely on the basis of race even though the physical faculties may be equal deprived the children of the equal educational opportunities. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities would create a sense of inferiority and would affect the motivation of the child to learn and hence segregation with the sanction of law, has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system. This decision is against reservations of any kind and gives equal opportunities to the minorities to obtain admission to educational institutions.
14. It is exactly this that the framers of our Constitution aimed to achieve by reservations, because if all sections of the community are treated alike, there is little prospect of the educationally backward people getting the benefits of education for a png time to come or at any rate until there is abundance of educational institutions to keep pace with the demand for education.
15. The first case after the promulgation of our Constitution relating to reservations in educational institutions arose out of what is known as the communal G.O issued by the Madras Government. In Champakam Dorairajan v. State Of Madras . 1950 2 M.L.J 404 F.B. a Full Bench of the Madras High Court consiting of Rajammanar, C.J and Viswana tha Sastri and Somasundaram, JJ., struck down the G.O as offending the guarantee under Article 15(1), since the discrimination is based only on religion, race or caste. On appeal by the State, their Lordships of the Supreme Court in State Of Madras v. Srimathi Champakam Dorairajan . A.I.R 1951 S.C 226., while affirming the decision of the Madras High Court, held the G.O to be bad as violative of Article 29(2) as such void under Article 13. It is in this case that they have held that the argument that the provisions of Article 46 override the provisions of Articles 29(2) must be rejected completely. As a result of these decision clause (4) of Article 15 was added by section 2 of the Constitution (First Amendment) Act, 1951 on 18th June, 1951. It is interesting and appropriate to note that the Select Committee has stated relating to the fears and doubts expressed in respect of the addition of this clause. It is:
‘Some apprehensions have been expressed in respect of this amendment. The Select Committee is of the view that this provision is not likely to be, and cannot indeed be, misused by any Government for perpetuating any class discrimination against the spirit of the Constitution or for treating non-backward classes as backward for the purpose of conferring privileges on them.” Gazette of India 1951, Pt. II, S. 2, page 379.
16. The question of reservations under clause (4) of Article 15 of the Constitution, the scope and power of the State and the manner and the extent of the reservations came up for consideration in the recent case of M.R Balaji v. State of Mysore, where it was strenously contended that it is not competent to the State to make an order under Article 15(4) unless a Commission has been appointed under Article 340(1) and a copy of the report of the said Commission is laid before the House of Parliament under Art. 340(3) and since that Article envisages the appointment of a Commission to investigate the conditions of backward classes and any report made by it and received by the President, the President is required to cause a copy of the same placed before the Houses of Parliament and it is therefore the President that can make special provisions for the advancement of the backward classes. Their Lordships, however, repelled this contention as misconceived and while admitting that the appointment of the commission and the subsequent steps that were to follow it constituted a condition precedent to any action being taken under Article 15(4). It was further contended, as was sought to be contended by some of the learned Advocates, that Article 15(4) envisaged legislative action, which contention was also repelled as being equally misconceived. It was pointed out that under Article 12 the State includes the Government and the Legislature of each of the States and so it is unreasonable to suggest that the State must necessarily mean the Legisalature and not the Government. It was further pointed out by their Lordships that where the Constitution intended that a certain action has to be taken by legislation and not by executive action it has adopted suitable pharaseology in that behalf, such as Article 16(3) and 16(5). Therefore it is clear that when Article 15(4) contemplates that the State can make the special provision in question, the said provision can be made by an executive order.
17. Now that it is within the ambit of the executive by its actions alone to make special provision for the advancement of any socially and educationally backward classes of the citizens, the question is whether any other provisions of the Constitution has provided the manner and the extent to which this can be done. In contrast with the provisions relating to the Scheduled castes and Scheduled tribes regarding which also special provision has been made, there as no particular method by which the State can determine its socially and educationally backward classes of citizens. In the case of Scheduled castes and Scheduled tribes, sub-clauses (24) and (25) of Article 366 define Scheduled castes and Scheduled tribes respectively. But there is no such definition of the other category, namely, socially and educationally backward classes of citizens to determine and indicate the indicia or the basis upon which it has classified these clauses. So that, when it is challenged, it is possible to ascertain on what basis they are educationally and socially backward classes of its citizens. In this respect, the reservation relating to the Scheduled castes and the Scheduled tribes does not suffer from the same difficulty because Articles 341 and 342 provides for the issue of public notifications specifying the castes, races or tribes and once those notifications are published for the purpose of the Constitution, the notified castes and tribes will be deemed to be Scheduled castes and Scheduled tribes. As pointed out by Gajendragadkar, J., in the: Mysore case, under Article 338 reference to the Scheduled castes and Scheduled tribes shall be construed as including references to such other backward classes; as the President may, on receipt of the report of a commission appointed under Article 340(1), by order, specify and also to the Anglo-Indian community, this provision therefore contemplates that some backward classes may by the Presidential order be included in, the point that the backward classes for whose improvement in the matter of their backwardness comparable to the Scheduled castes and Scheduled tribes.
18. While this may be so, a comparison of backward classes with Scheduled castes and Scheduled tribes may be one thing, while it is another to equate the educationally and socially backward classes with any particular caste or community.
19. It is not always that caste and class coincide. What is required to be deter mined for the purpose of Article 15(4) is not only social backwardness, but educational backwardness and that a class which comes within the exception of clause (4) must satisfy both these requirements. It was observed in the Mysore case in M.R Balaji v. State of Mysore at page 659 by Gajendragadkar, J., after refering to the definition of the dictionary meaning of the word ‘class’ and the part played by caste in the Hindu social structure:—
“Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant,’ its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizens it may not always belogical and may perhaps contain the vice of perpetuating the castes themselves.
Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or Jains or even Lingayats are socially backward or not? The test of castes would be inapplicable to these groups but that would hardly justify the exclusion of these groups in to to from the operation of Article 15(4). It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or class of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a backward seat. It is true that social backwardness which result from poverty is likely to be aggravated by consi derations of caste to which the poor Citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens.”
20. Again it was stated that the problem of determining, who the socially backward classes are is undoubtedly very complex, that the social and economic considerations come into play in solving the problem, and evolving proper criteria for determining which classes are socially backward is obviously a very difficult task; that it will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way, his Lordship proceeded at the same page to observe as follows:—
“That is the function of the State which purports to act under Article 15(4). All that this Court is called upon to do in dealing with the present petitions is to decide whether the tests applied by the impugned order are valid under Article 15(4). If it appears that the test applied by the order in that behalf is improper and invalid then the classification of socially backward classes based on that test will have to be held to be inconsistent with the requirements of Article 15(4).”
21. The above decision also dealt with the extent to which a special provision as contemplated by Article 15(4) or 16(4) is possible, which is that it should be within reasonable limits.
The interests of weaker sections of society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly 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 the object of Article 15(4).
22. His Lordship further observed at page 663 as follows:—
“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 per cent how much less than 50 per cent. would depend upon the relevant prevailing circumstances in each case……… in our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Article 15(4) it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations.”
23. The above observations and the principles and decisions laid down by their Lordships, in my view, lays the onus of supporting the classification of citizens as social and educational backward classes on the State. It cannot be, as contended by the learned Advocate-General, that merely because a list has been published for over 25 years without any demur, after the Constitution, it shifts that onus to the party, who challenges the order. In the first place it is well established that legislative or executive action though acquiesced cannot be a bar to a subsequent action challenging the validity of those actions. In Webster v. Luther Justice Harlan at page 342 observed that the Supreme Court has often said that “it will not permit the practise of an executive department to defeat the obvious purpose of a statute.” Again in United States v. Graham the Court said:—
“It matters not What the practice of the departments may have been or how long continued, for it can only be resorted to in aid of interpretation, and it is not allowable to interpret what has no need of interpretation.”
24. In the second place, both in M.R Balaji v. State of Mysore and Saghir Ahmed v. State of U.P the onus of proof of bringing the impugned orders within the exception of clause (4) of Article 14 and clause (6) of Article 19 lay upon those who sought to bring the executive action or legislation within the purview of the respective exceptions. In the latter case Saghir Ahmed v. State of U.P Mukherjea, J., has this to say at page 830:—
“But when the enactment on the face of it is found to violate a fundamental right guaranteed under Article 19(1)(g) of the Contitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause (6) of the Article. If the respondents do not place any materials before the Court to establish that the legislation comes within the permissible limits of the exception laid down in clause (6) it is surely not for the appellants to prove negatively that the legislation was pot reasonable and was not conducive to the welfare of the community. In the present case we have absolutely no materials before us to say in which way the establishment of State monopoly in regard to road transport service in the particular areas would be conducive to the general welfare of the public…….”
25. It is, therefore, clear that the onus is upon the State to sustain the classification of the innumerable categories specified in the impugned Government Order as being educationally and socially backward classes within the meaning of Article 15(4). The State has not attempted to place before me how the classification has been made, except to admit quite clearly that the Government maintains a list of backward classes based on the social and educational backwardness of the caste which in other words, means that caste was the only criterion in determining the social and educational backwardness. This is exactly what Article 15(1) and 29(2) inhibit.
26. The respondents have stated that they have from time to time deleted the various classes from the list of backward classes as if to indicate that they have adverted their mind to the progress of the community and have subsequently filed G.O.Ms No. 3553 Education, dated the 7th December, 1962, Memorandum No. 2096-P-2/63-3 dated the 6th September, 1963 and Memorandum No. 3534-P-2/60-28 Education, dated the 30th July, 1963; but I cannot draw any such inference from those orders. The G.O of 1962 shows that the Government of composite Madras State had stated in their Memorandum No. 35531/48-3-C1. Education, dated 27th October, 1948, informed the Director of Public Instruction that the two castes “Veerasaiva Lingayat” and “Kannadian” might be treated identical on the authority of the Tahsildar's certificate and that they might be granted educational concession under 92 M.E Rules. They however, considered it not necessary to include “Veerasaiva Lingayat” in the list of backward classes appended to the M.E Rules. Again it was stated that the Director of Public Instruction had requested the Government to issue orders to the effect that the two castes “Lingayat” and “Veerasaiva Lingayat” may be treated as identical for the purposes of granting fee concessions under Rule 92 M.E Rules. Subsequently it was stated that the “Kannadian” caste shown under Item 56 in the list of backward classes in Appendix 17 (a) of the M.E Rules is nowhere found in the Andhra area except in some parts of Rayalaseema and therefore suggests that the “Kannadian” community may be deleted from the list of backward classes. Accordingly, they have removed “Kannadian” community from the list. The question of inclusion of the two communities “Lingayat” and “Veerasaiva Lingayat” in the list of backward classes was under consideration. In the Government Order of 30th July, 1962, as Item 84-A “Mogaveera” and 85-A “Moniagar” were to be deleted, because they were not in existence in any of the districts of the Andhra area. In the Government Order of the 6th September, 1963, a note was to be added under Item 159 “Kapus (in Circar districts only)” included in the list of backward classes in Appendix 17-A of the Andhra Education Rules to the effect that the Reddis of Nellore district who are generally known as “Kapus” shall not be treated as backward classes list was prepared purely on the basis of caste.
27. The consideration which prevailed long prior to the Constitution at a time when the Government maintained a list of backward classes based on social and educational backwardness of the caste are totally different to what the Constitution requires as an exception to the guarantee of fundamental rights. Mr. Choudhary contends that at one time a large number of castes and communities classified in what are known as non-Brahmins were considered to be socially and educationally backward classes. They may be so educationally but under no circumstances could they be so considered socially. The Kamma, the Reddis, the Velamas, the Telagas, etc., were some such, but sure enough even before the Constitution they were deleted from that class. He also points out that in the list are included the Viswa-Brahmins of Andhra, who he says according to them were a very advanced community and considered themselves equal to Brahmins. So much so, it was contended in Pitchamma v. Battu where Viswa-Brahmins merely by reason of wearing a sacred thread claimed to be Dwijas, which contention was negatived by Viswanatha Sastri, J. In that case the plaintiffs' claim as heirs of one Amara-lingam was resisted on the ground that he was a Dwija and his illegitimate son Lakshmaiah had no right of inheritance to him. Mr. Choudhary also referred to the several volumes of castes, and tribes in Southern India by Edgar Thurston to point out that most of these castes are not socially backward, though some of them may be educationally backward. In Volume 3 at page 94 relating to the Kamma caste, it is stated:
“writing collectively concerning the Kammas, Kapus, or Reddis, Velamas and Telagas Mr. W. Francis states that all four of these large castes closely resemble one another in appearance and customs and seems to have branched off from one and the same Dravidian stock. Originaly solidiers by profession, they are now mainly agriculturists and traders, and some of them in the north are zamindars (land-owners).”
28. At page 222 he describes the Kapus Reddis as the largest caste in the Madras Presidency, numbering more than two millions and are the great caste of cultivators, farmers, and squireens in the Telugu country. In the Gazetteer of Ananta-pur they are described as being the great land-holding body in the Telugu districts, who are held in much respect as substantial, steady-going yeomen, and next to the Brahmans are the leaders of Hindu society.” In Volume VII, page 13, the Telagas are said to be a
“Telugu caste of cultivators, who were formerly soldiers in the armies of the Hindu sovereigns of Telangana. This may perhaps account for the name, for it is easy to see that the Telugu soldiers might come to be regarded as the Telugus or Telagas par excellance. The sub-divisions returned under this name show that there has been some confusion between the Telagas proper, and persons who are members of other Telugu castes. The Telagas are Vaishnavites, and have Brahmans for their priests. Their customs closely resemble those of the Kapus. They eat flesh, but are not allowed to drink liquor. They are usually farmers now but many still serve as soldiers, though their further recruitment has recently been stopped.”
29. Similarly, he has given the seven volumes of Thurstons's which find a place in Tribes of Southern India at different places. It will be difficult to refer to these or to discuss the question whether they are socially backward or not. For curiosity, I looked up the first of the castes referred in the Government Order, namely, Agamudaiyan, which is at page 5 of Volume 1, from which it is seen that this caste as referred to by Mr. W. Francis, is
“a cultivating caste found in all the Tamil districts. In Ghingleput, North Arcot, Salem, Coimbatore and Trichinopoly, they are much less numerous than they were thirty years ago. The reason probably is that they have risen in the social scale, and have returned themselves as Vellalas. Within the same period, their strength has nearly doubled in Tanjore, perhaps owing to the assumption of the name by other castes like the Maravans and Kalians. In their manners and customs they closely follow the Vellalas. Many of these in the Madurai district are the domestic servants of the Maraya. Zamindars. The Agamudaiyans who have settled in the North Arcot District are described by Mr. H.A Stuart as a class of cultivators differing widely from the Agamudaiyans of the Madurai District. The former are closely allied to the Vellalas, while the latter are usually regarded as a more civilised section of the southern Maravans.”
30. There is, however, no reference to this caste being found in any place in the Andhra. Nonetheless this caste finds a place in the impugned Government Order. Most of these castes referred to in the Government Order are cultivators who are not initially, socially backward but as pointed out by Gajendragadkar, J., dire poverty may relegate them to a lesser status in society. The march of time since 1908 has been progressively to increase the economic condition and consequently to enhance the social status as years pass by. Even so there is a great leeway to be made.
31. I have however no material before me as to the economic conditions of these various castes or the occupation and habitation, their social status and the educational backwardness vis-a-vis the State averages and consequently I must hold that the impugned Government Order offends Articles 15(1) and 29(2) of the Constitution. In these circumstances, the severability of items 84 and 85 does not arise. Evert otherwise, if 25 per cent, of the reservation is provided for with items 84 and 85, it must necessarily be less than 25 per cent, without items 84 and 85. How much less, the State alone can decide and not the Court. Looking at it from any point of view, if in the previous year the reservation of 25 percent was for all the others, except 84 and 85, it could not be that there has been such an educational progress in those classes as to bring in the petitioners socially and educationally advanced communities, a fact not denied by the respondent and reduce that percentage and expect them to compete in the general pool. A severance is therefore not possible and the Government Order must stand or fall as a whole. In Saunders v. South Eastern Railway Co. Cockburn, C.J said:
“Now it is settled law, not only that it is essential to the validity of a by-law that it be reasonable (Com. Dig. By-law, C. 6) but also that, ‘a by-law being entire, if it be unreasonable in any particular, it shall be void for the whole (Ibid-C. 7) of which Comyans gives as an instance—as if the penalty be unreasonable’.”
32. Similarly, the Supreme Court also in M.R Balaji v. State of Mysore, dealing with similar argument as is addressed by the Advocate-General observed at page 663 as follows:
“We do not see how it would be possible to sever the invalid provisions of the impugned order If the categorisation of the Backward Glasses is invalid, this Court cannot and would not attempt the task of enumerating the said categories; and if the percentage of reservation is improper and outside Article 15(4), this Court would not attempt to lay down definitely and in any inflexible manner as to what would be the proper percentage to reserve.”
33. It is again argued by the learned Advocate-General that the State could not be said to be acting in fraud of its powers. But, there again the answer is given by their Lordships at page 663:—
“When it is said about an executive action that it is a fraud on the Constitution, it does not necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra vires the State Authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power.”
34. It is contended by the learned Advocate for the petitioners that applying the test laid down by their Lordships of the Supreme Court in M.R Balaji v. State of Mysore, that the reservations should not be more than 50 per cent, in this case that the total reservations under all categories amount to about 76 per cent. But, the reply of the learned Advocate-General is that what their Lordships of the Supreme Court were dealing with was that the reservations of Scheduled Castes, Scheduled Tribes and backward classes under Article 15(4) should not exceed 50 per cent. which in this case they do not so exceed. It is true that their Lordships referred specifically to these three categories as in judging the reasonableness and the reservations themselves should not exceed 50 per cent, and for good reasons too, because the other reservations, namely, reservation for women, sports all admit general categories and do not confine them to any particular class or caste. Nor do they offend the provisions of Article 15(1) or Article 29(2) of the Constitution: The reservations for women is made under Article 15(3) of the Constitution which says that nothing in Article 15 shall prevent the State from making any special provision for women and children. That apart in the reservation for women not only those women who have secured admission in any of the two categories of 11(i) and (ii) Scheduled Caste, Scheduled Tribes and Backward classes but also those who have secured a seat in general competition are included so that no real discrimination as such is apparent. The result is, therefore, that the impugned Government Order being violative of Article 15(1) and Article 29(2) of the Constitution and in fraud of powers, must therefore be struck down. The result of this may create some hardship to those classes which are socially and educationally backward, coming as it does, particularly at the time when the admissions are held up; but that is a consequence which must necessarily follow from the conclusion to which I have arrived at.
35. In W.P No. 908 of 1963 represented by Mr. Choudhury, W.P Nos. 905, 922 and 956 of 1963 represented by Mr. Babul Reddy, W.P Nos. 978, 986, 1000 and 1021, the first two represented by Sarva Shri Somakonda Reddy, Nagasheshaiah respectively and the last two by K. Suryanarayana the question that falls for determination is whether the respondents were justified in deducting 5 per cent, of the marks which were said to have been added for N.C.C activities in biological and physical sciences in the Andhra University in some colleges for working out the percentage for purpose of admission. The affidavit in W.P No. 908 of 1963 states that the petitioner obtained 75 per cent, marks in his group which alone is considered for purposes of selection and according to rule 7 (c) of the Rules of Admission, only the marks obtained by the candidate in the optional subjects alone will be taken into account; that the Principal who was in charge of the admissions had refused admission to the petitioner although candidates who had secured less than 75 per cent, were given admission. The Government in their counter have stated that the marks shown by the petitioner are inclusive of the 5 per cent, marks awarded by the University to those being trained in N.C.C and cannot be said to have been secured in the optional subject within the meaning of rule 7 (c) of the Rules. If those 5 per cent, marks are not taken into consideration, the petitioner cannot secure a seat. It is contended that the Principal has no right to delete or deduct any marks from those given in the memorandum of marks furnished to him by the Andhra University. In my view, this contention has force, not only because the rule does not say that the 5 per cent, marks added in the biological and physical sciences shall be deleted, but also the addition of these marks are as compensation for the time spent by the students in joining this Corps, which apart from strengthening the body and making them physically fit, has national service as a basis, when compared to those who take no part in this extra-curricular activity and who would have more time to pursue their studies and get a few more marks. Mr. Babul Reddy contended that for this reason Venkateswara University has reduced the subjects, because N.C.C has been made compulsory, while in the Andhra University students of those colleges who participated in the N.C.C have been given this weightage. If the 5 per cent. marks are treated as part of the biological and physical sciences awarded by the University, which the University has every right to award under its rules unless the rules of admission specifically say that these should be deleted, in my view, it would not be just or proper to delete the same. Besides rule 9(ii) B(IV) shows that only a certified copy of the statement of marks obtained by the candidate qualifying him for admission to the course is to be attached. If that shows the marks he got, the selection authorities cannot go behind it.
36. W.P No. 921 of 1963.— In this Writ Petition, the candidate has been denied admission because he is underaged. The applicant was born on 1st December, 1946, but the date of birth was wrongly entered as 1st December, 1947. The procedure laid down in the Government Order was followed by presenting an application on 19th November, 1962 which was rejected on 31st November, 1962. A suit notice was issued on 22nd January, 1963 and O.S No. 134 of 1963 was filed on 29th March, 1963 making the State of Andhra Pradesh, the Registrar of Andhra University and the Director of Public Instruction parties and the suit was decreed on 13th June, 1963. In the application for admission the correct date of birth was given and along with it the petitioner filed a certified copy of the decree and judgment in O.S No. 134 of 1963 dated 13th June, 1963; but the Principal has refused to accept it holding that the date entered in the S.S.L.C Register is the correct date. The Government has filed no counter. It appears to me that when there is a decree which is binding on the Director of Public Instruction and the Government of Andhra Pradesh and the Andhra University, the rejection of the candidate's application is without jurisdiction and his application should be entertained; particularly in view of the fact that none of the respondents have filed a counter which can only mean that they have accepted the contentions of the applicant. The Advocate-General also did not really contest the matter.
37. W.P No. 1006 of 1963.— This Writ also concerns the correction of age, but it suffers from the defect theat the decree obtained by the candidate is only against the Andhra University. Neither the Government nor the Director of Public Instruction was made parties and consequently they cannot be held to be bound and mo effect can be given to the decree as against them, nor can it be said that the rejection of the candidate's application is not within the jurisdiction of the admission authority. But the learned Advocate-General however, stated that he would request and recommend to the authorities to consider this application on merits.
38. W.P Nos. 968, 978, 991, 1015 of 1963.— In these four Writ Petitions, the question of reservation for the Senior Cambridge and the Multipurpose students has been challenged. Rule 11(iv) states that candidates passing H.S.C (Multipurpose) and Senior Cambridge examinations shall be selected to the extent of seats reserved for them after deducting the number of Multipurpose and Senior Cambridge candidates selected under clauses (i), (ii) and (iii), and in the Note to 7 (c) the principle for making the admissions from the categories of Multipurpose Senior Cambridge and Pre-University Course candidates on merit basis is stated. The petitioner's contention is that this rule is designed to deprive equal opportunity of the P.U.C students as against Multipurpose students of 60 per cent, of the seats. It is also contended that the reservation of ⅓ from out of the total number only in the residuary category and the chances of a P.U.C candidate getting admission in the Medical College is absolutely nil and is a total deprivation of the right of the general category to study a course of his choice and consequently, it is said to be void and must be struck down. The scheme of the rule is that after all the reservations specified in rule 2 have been provided for, of the general category ⅓ is to be provided for the Multipurpose and Senior Cambridge students in such a way that all the Multipurpose and Senior Cambridge students who have got admissions under the reservations have to be given credit to in the ⅓ quota and only the balance of it will have to be admitted from out of this category.
39. The question whether ⅓rd of the total is to be reserved or ⅓ in each category of the reservations has to be reserved is concluded by a decision of a Bench consisting of Chandra Reddy, C.J, and Gopal Krishnan Nair, J., in Writ Appeal No. 5 of 1963 and W.P Nos. 811 of 1962 and 65 of 1963, dated the 12th February, 1963.
40. A Note similar to 7(c)(i) came up for consideration. The principal point was whether the note warrants the division of the Multipurpose candidates into different compartments as per the reservations for the various categories. Umamaheswaram, J., thought that it did, because when the note says that ⅓ of the seats should be given to Multipurpose candidates, it meant to each of the categories mentioned therein, i.e, the Scheduled Castes and Tribes, Backward classes, candidates who have distinguished themselves in sports and extra-curricular activities, women and the general pool. In other words, according to Umamaheswaram, J., the seats reserved for the Multipurpose and Senior Cambridge students should be distributed in proportion to the reservations made in rules 4, 5, and 6. This view has been rejected by the Bench. His Lordship the Chief Justice said:
“We are unable to subscribe to the view taken by the learned Judge in our opinion, all that the rule contemplates is that the allotment of not less than one-third of the total number of seats should be made to students emerging from the Multipurpose schools and to Senior Cambridge students. There is no further requirement that these seats should again be distributed category-wise i.e, in accordance with the reservations indicated above. This rule does not concern itself with dividing the seats into different compartments, since it is plain from the language that emphasis is on the assignment of a particular percentage of seats to the Multipurpose, Senior Cambridge candidates. It does not warrant the conclusion that one-third of the seats reserved to each of the categories should be given to those from the Multipurpose schools. The object of the rules as already stated, is that admission should be made not only from the P.U.C candidates but also from those coming from the Multipurpose schools.”
41. The Bench also pointed out that if the interpretation adopted by the learned Judge was given effect to, it would result in a disadvantage to the Scheduled Castes and Scheduled Tribes, since it would cut down the number of seats reserved for them.
42. It is again contended that the principle adopted in this rule in accordance with what was laid down by Umamaheswaram, J., was construed by the Principals of the Medical Colleges of the Andhra area and cannot be interfered with. I do not accept this contention as sound, because a Principal, though he may be in charge of the admission does not have the power to admit contrary to the rule.
43. The constitutionality of the rule also was challenged before a Bench of this Court consisting of the Chandra Reddy, Chief Justice, and Chandrasekhara Sastry, J. in Gullapalli Nageswara Rao v. Principal, Medical College, Guntur. The Bench held that
“The purpose of the rule that admissions for Pre-professional Course in Medicine should be made from the date of the categories of Multipurpose and P.U.C students or merit basis, subject to the condition that one-third of the total number of seats in all categories should be given to Multipurpose candidates, is to mete out equal treatment to both seats of candidates without giving any weightage to one as against another. Without this reservation, students of Multipurpose schools will find it hard to obtain their due share of the seats despite their possessing equal talent with those of P.U.C candidates, because they cannot score as high percentage of marks in optional subjects as others on account of the several disadvantages they suffer Government which is charged with the duty of organising educational activities, obviously thought that this rule will enable students who have passes the H.S.C examination to have equal treatment and equal opportunities with candidates who have passed P.U.C examination. If that were the purpose of the rule, it is difficult to posit that it has the postulate of discrimination witnin the ambit of Article 14 of the Constitution. On the other hand, if seems to be designed to extend to the candidates the guarantee of equal protection. It rests on a substantial distinction bearing a reasonable and just relation to the purpose sought to be attained thereby. It has not resulted in unequal treatment to P.U.C candidates.”
44. Mr. Mohan Rao and Mr. Venkataramana Reddy contended that the reservation unlike in the Bench case is far in excess of the number of candidates who appeared for the Multipurpose examination. Before the Bench also, it was sought to be contended that the seats reserved for the Multipurpose and Senior Cambridge students were out of all proportion to the number of students who pass out of the Multipurpose schools and it was held that this contention was unsubstantial as the reservation seems to be in the ratio of the students that passed out of the Multipurpose schools in March April 1961 examination. It is stated in the affidavit in W.P No. 968 of 1963 that the total students that appear the P.U.C examination in the Andhra and Venkateswara Universities is more than 40,000 whereas the strength of the Multipurpose and Senior Cambridge students who appeared in the same are is only about 5,000 and thus out of the 500 seats available in the Medical College the P.U.C ex-students who are more than 40,000 will get only 330 seats, while the Multipurpose students who are only 5,000 strong will get 170 seats, which is said to be a discrimination. No counter seems to have been filed by the Government in these cases and consequently it contended that the averments made in the petitions are deemed to have been admitted. But the learned Advocate-General states that the rules take into account the fact that the Multipurpose is a four-year course and all the marks are taken into account, while P.U.C is a one-year course and has fewer subjects. But that does not answer the serious criticism that the reservation is quite out of all proportion to the number of candidates appearing for the Multipurpose vis-a-vis P.U.C candidates which would amount to a discrimination. It is contended that the figures placed before the Bench for the year in question shows that the proportion or ratio fixed for Multipurpose was in accord with the number of students that passed out in that examination. But it is not so in this case.
45. The two conditions necessary to satisfy that test of reasonable classification for the purposes of saving from the vice of Article 14 have been now well established, i.e (I) there should be an intelligible differentia distinguishing persons or things that are grouped together from those left out of this group and (2) that differentia should have a rational relation to the object sought to be attained by the statute or the rule in question. The essential requirement is that there should be a nexus between the classification and the purpose of the enactment of the rule. Can it be said that in this case these tests have been satisfied ? In so far as there being an intelligible differentia distinguishing persons or things grouped together are concerned, it is well satisfied. But is there a rational relation to the object sought to be achieved and is there a nexus between the classification and the purpose of the enactment of the rule. The rational relation to the object sought to be achieved is to give protection to the Multipurpose and Senior Cambridge students and if those categories are given protection commensurate with their claims, that would be a rational relation to the object sought to be attained; but if it far out weighs that object in making reservations, nearly three times that which is required, it cannot be said that it has a rational relation. If the figures given in the affidavit are correct, the reservation for Multipurpose and Senior Cambridge candidates is out of all proportion to the number of candidates who appeared for both the examinations but of the total of 45,000 students appearing for both P.U.C and Multipurpose and Senior Cambridge, the latter being only one-ninth of the total are getting a reservation of one-third of the total number of seats. If there is such a differentiation, it cannot be said to be meting out equal treatment to both the sets of candidates without giving any weightage to one as against the other or that the proportion reserved to the Multipurpose candidates can be said to be resting on a substantial distinction bearing a reasonable and just relation to the purpose sought to be attained thereby and that it has not resulted in unequal treatment to the P.U.C candidates. If this was not so, it would almost amount to a large number of students (nearly 40,000) being placed in a position where they would in effect require protection. If seats proportionate to their numbers are not available, there would be discrimination and a likelihood of deserving and brilliant students being rejected. The Government would be entitled to take the number of candidates successful in each category of the two examinations into considerations and make a reasonable reservation consistent with their numbers and the object to be achieved. This is what the Bench also considered in the case of Nageshwar Rao. But if it is more convenient and facilitates quicker admission, the number appearing can be taken as an indicia to fix the proportion. The adoption of this rule would not in any way create hardship because before the March examination itself the Government would be in a position to know how many candidates have appeared for each category of examination and notify their reservation well in advance. For these reasons after the judgment was prepared but before it was pronounced,
46. I had called upon the Government Pleader to furnish me with the figures of the number of students that have taken the P.U.C and H.S.C (Multipurpose) in the Andhra area. These figures were shown to the other side and Mr. Mohan Rao has accepted these figures. The figures furnished show that 12,655 candidates from Andhra University appeared for P.U.C and 3,127 from Venkateswara University making a total of 15,782 for March 1963, while 3,098 and 2,075 have appeared respectively in Andhra University and Venkateswara University for H.S.C (Multipurpose) making a total of 5,173 roughly taking the total of both to be 20,955, the proportion of Multipurpose and P.U.C is 1:4. In the circumstances, the reservation should have been 1:4; but it cannot be said that this amounts to overweightage or discrimination within the meaning of Article 14. Consequently I there is no merit in the contentions raised in these petitions.
47. W.P No. 991 of 1963.— In this petition, apart from the general questions which have already been dealt with, it is contended (1) that proficiency in extra-curricular activities does not bear any relation to facts, since it cannot be skid that a goad sportsman or a debator or a singer necessarily makes a good doctor (this point is also raised in W.P No. 978 of 1963); (2) that the division of the Andhra area into three regions is against law and is not supported by any principles of rational basis and the classification amounts to discrimination and withholding of equal opportunity to all the students seeking admission; (3) that in any case proviso to rule 6 is unconstitutional inasmuch as it provides for filling up the deficiency in one region in a particular reserved class by transfer of the reserved class candidates only from the other region without such seats being transferred to the general pool in the region; (4) that rule 6 (c) does not contemplate reservation of any seats for the Telangana candidates to be transferred to the Andhra region, that the selection for admission to all the seats of the region has to be completed in accordance with the rules before the transfer from the Telangana region to the Andhra region and vice versa is effected. The respondents have committed an error in keeping certain number of seats vacant on the ground that Telangana candidates are to be transferred; (5) that rule 7(c)(ii) requiring minimum marks of 45 per cent, for general communities and 40 per cent, for Scheduled Castes and Tribes is quite arbitrary and does not bear any relation to facts; (6) that respondent No. 2. has violated rule 10(2) in not publishing the marks list as against each selected candidate. The respondent No. 2 also acted without jurisdiction and with material irregularity in publishing a partial list of selected candidates without finalising the entire selection of candidates eligible for admission.
48. No counter has also been filed to this writ petition.
49. The basis of selection for a professional course can be as varied as the wisdom of the persons in authority formulating that basis. It may be considered that consideration based on the total number of marks in all the subjects might indicate the suitability for the selection or it may be that the marks in biological and physical sciences with English may be taken as the proper test, because a knowledge of English is necessary for the understanding of the professional subjects which are at present taught in English medium. At one time when the medium of instruction in the Osmania University was Urdu, proficiency in Urdu was one of the considerations and it may be one day Hindi may take that place when it replaces English as the medium of instruction. The authorities in charge of Medical education may also think that due to lack of extra-curricular activity and concentration too much on the brain work, the health of the students is not sufficiently good enough for them to pursue the hard and strenuous course such as Medical Course and may take into account the physical fitness, activities in sports, N.C.C, they may think that for a doctor who is to have good manners besides which bring cheer and comfort to the sick and infirm, cultural activities and general knowledge may also be necessary requisites. It is difficult to postulate at any given time what would be the best test for determining the suitability of the candidate for the profession. These are matters, which must be left to those in charge of education men of great experience and ability and well-versed in fathoming from time to time the essential requirements for selection. The 5 per cent, reservation for sports men and extra-curricular category is not in any way discriminatory, nor does it offend any of the fundamental rights guaranteed by the Constitution. If at all, it will encourage boys to take greater part in one of the essential activities of student life. The old adage “All work and no play makes Jack a dull boy” can have no better truism than it is to-day when marks getting is the only criterion for judging the ability of a student. An activity-integrated individual who is good at studies and good at out-door activities is far more suited not only to this profession, but also to any other profession, and if the Universities have given protection and encouragement in this field they can only be commended for their far-sighted policy. I find there is no basis for declaring this reservation as arbitrary or irregular.
50. On the second point, several judgments of this Court have held that the division into regions cannot be said to be based on any irrational basis or without any nexus between the classification and the purposes of the enactment, particularly when the number of seats have been allotted in accordance with the population in each region, it is a reasonable classification and the question, in my view, is not res Integra.
51. The serious objection in the third point is to rule 6 which provides for filling up the deficiency in one region by transfer of the reserved class candidates from the other region without such seats being transferred to the general pool in that region. Once the Government have decided to divide the number of seats available in accordance with the population in each of the three regions and allotted seats to them for admission under the various categories of reservations and the general pool, the transfer of candidates of that category to the other regions would militate against the very principle and makes the matter discriminatory. There can be no semblance of an attempt in such circumstances to say that it was done for the purposes of any particular region. If supposing in one region ten seats are available from the category of Scheduled Castes and Tribes, which of the other two regions are to be given priority ? Can they be taken from any one of the other two regions or can the remaining seats be divided in accordance with the population of the other two regions, or can it be divided into half and half or in what proportion ? It is not clears Such an arrangement would be placing an arbitrary power in the selecting authorities without any reasonable basis or classification. Nor is a bias in favour of one class for reservation only can be said to give equality of treatment to other classes of reservation. Probably, recognising this, the learned Advocate-General submitted that he would himself make a recommendation in this regard. But since this question is raised, I have to determine this matter and must hold that this power is violative of Article 14.
52. In respect of the fourth point, rule 6(1) is clear that a number of seats equal to the number of Andhra candidates who are selected for admission to the M.B.B.S course in the institutions in the Hyderabad city shall be reserved for Telangana candidates who are transferred to the Andhra region in exchange and the latter shall not be subject to any further selection. This rule, it is said, requires not only the selection of candidates in the Andhra institution, but also the selection of the Telangana candidates into Telangana institutions and the exchange of such students selected in the respective areas. The rule appears to be somewhat unhappily drafted because it postulates a number of seats to be reserved for Telangana candidates equal to the number of Andhra candidates who are selected to the M.B.B.S course to the institution in the Hyderabad city. How these selections of Andhra candidates in the institution in Hyderabad city are made is not evident. Does this mean that the selection of the Andhra candidates to the institutions in the city are on a comparative merit with the candidates for admission to the institutions in Hyderabad city or with candidates who would otherwise get admission to institutions in the Andhra area ? Is it in respect of such number of Telangana candidates who would otherwise be selected in the Telangana institutions reservations is made in the Andhra area ?
53. The latter part of the rule uses the words “exchange” and “further selection” indicating that the Telangana candidates are exchanged without any further selection, which could only mean that they have got admission and are exchanged. An exchange can only be with a candidate who is already selected. But in the first part of the rule the word “selected” is used. Therefore, does the rule postulate the selection of Telangana and Andhra candidates to institutions in the Hyderabad city on comparative merit and thereafter the transfer of a number of Telangana candidates equal to the number of Andhra candidates so admitted, for whom the vacancies have to be kept in the Andhra area ? Reading this rule as such would mean that the selection is always in excess of the number available in Telangana institutions by the number of Andhra candidates admitted in Hyderabad city, which would in effect mean that there is a reservation for Telangana candidates selected in their area in the institutions of the Andhra area. Again on this basis in the Telangana region candidates for other regions will be permitted to apply.
54. If this was the intention, the rule could have specifically stated so. In these circumstances that interpretation should be placed on this rule which would harmonise to achieve a reasonable and practical result. I must hold that the exchange of the Andhra students vis-a-vis the Telangana students is on the basis of selection in their respective areas and consequently if any seats have been kept vacant in the Andhra area without selecting the Andhra candidates that would not be in consonance with the spirit and intention of rule.
55. The next point, in my view, has little force. It is open to the State Government, having regard to the general proficiency of any particular class to fix different-minimum of marks, as long as it conforms to the two tests set out above to save it from the vice of Article 14. The difference of five marks as the minimum qualifications for making applications between the general communities and the Scheduled Castes and Tribes cannot be said to be discriminatory. The persons in charge of education are the most competent persons and with the material before them spread over a period of years, they would be placed to formulate the minimum marks. It may be that when educational state have increased, the minimum marks also may also be increased but that is not a question which can be agitated as long as it does not amount to discrimination within meaning of Article 14.
56. With respect to the last point, there is nothing in rule 10, which show that the list should exhibit the percentage of marks obtained by each of the candidates selected. There is no sub-rule (2) to rule 10 at all. If at all the rule is rule 13 which deals with the publication of the names of the selected candidates. All that the rule states is that immediately on the list being finalised, the Principal of the College concerned shall communicate under certificate of posting the provisional selection to the candidates concerned to their addresses given in the application forms and the publication of the names of all the candidates selected in all the centres of the area. If the candidate who is not selected is in doubt, he can always ascertain the fact from the Principal. It is, however, salutary to indicate the percentage of marks against the candidates selected to avoid a great deal of enquiry and trouble to the authorities concerned. The formulation of any procedure in this regard is, however, a matter entirely for the authorities authorised to publish the list.
57. In respect of the allegation only a partial list was published, learned Advocate-General submitted that as soon as these writs were filed, the Government held its hand and did not proceed with the admissions awaiting the result of writs.
58. The result is, W.P Nos. 857, 879, 880, 908, 973, 997, 905, 922, 956, 978, 991, 1015 and 1038 are allowed and the reservation for socially and educationally backward classes is quashed. W.P Nos. 908, 905, 922, 956, 978, 986, 1000 and 1021 are also allowed with the direction that the marks of the candidates of biological and, physical science should be taken into consideration without the deduction of the 5 per cent, marks for purposes of selection.
59. W.P No. 921 of 1963 is allowed with costs with the direction that the application of the candidate be taken into consideration on the basis that the date of birth is 1st December, 1946.
60. W.P No. 968 of 1963 is dismissed with costs. W.P No. 1006 of 1963 is also dismissed with costs.
61. In W.P No. 991 of 1963, there will be a further direction in respect of the seats reserved for Telangana students as indicated above.
62. Of the thirteen writ petitions raising the general question, W.P Nos. 991 and 1015 of 1963 raised the other questions on which they fail. Consequently they are allowed without costs and the rest eleven are allowed with costs. W.P Nos. 986, 1000 and 1021 of 1963 are allowed without costs. Advocate's fee Rs. 100.
63. All petitions except Nos. 968 and 1006 of 1963 allowed.