Neil Aurelio Nunes & Ors. vs Union of India & Ors.

Constitution of India – Reservation – Scheme of All-India Quota (AIQ) seats – Development of – Petitioners argued that Supreme Court in Pradeep Jain case and the subsequent cases has held that there shall be no reservation in the AIQ seats – Held: Scheme of AIQ was devised to allot seats in State-run medical and dental institutions in which students from across the country could compete – Observations in Pradeep Jain that the AIQ seats must be filled by merit, must be read limited to merit vis-à-vis residence reservation – Supreme Court in Pradeep Jain did not hold that reservation in AIQ seats is impermissible – Evolution of the AIQ in UG and PG medical and dental courses traced.

Constitution of India – Reservation – All-India Quota (AIQ) seats – Power of executive to introduce reservation in AIQ seats – Petitioners argued that the Union Government should have filed an application before Supreme Court before notifying reservations in the AIQ since the AIQ scheme is a creation of Supreme Court – Held: Argument is erroneous – The Union Government in Abhay Nath case had made a submission of its intention to provide reservations in the AIQ for the SC and ST candidates since until then in view of the confusion on demarcation of the seat matrix, there was no clarity on whether reservations could be provided in the AIQ – Thus, in Abhay Nath it was clarified that reservations are permissible in the AIQ seats – Therefore, the order in Abhay Nath was only clarificatory in view of the earlier observations in Buddhi Prakash Sharma – Interpreting the order to mean that the Union of India sought the permission of Supreme Court before providing reservation would amount to aiding an interpretation that would foster judicial overreach – The Union Government was not required to seek the permission of the Court before providing reservation in AIQ seats – Providing reservation in the AIQ seats is a policy decision of the Government.

Constitution of India – Reservation – All-India Quota (AIQ) seats – Impugned notice providing reservation for OBC and EWS categories in the AIQ was issued on 29 July 2021, after the registration for the examination had closed on 18 April 2021 – Plea of the petitioners that the rules of the examination could have only been changed before the last date for registration and as the candidates registered for the exam having a particular seat matrix in mind, the change in the seat matrix after registration would be arbitrary – Held: Clause 11 of the information bulletin specifies that the reservation applicable to NEET-PG would be notified by the counselling authority before the beginning of the counselling process – Therefore, the candidates while applying for NEET-PG are not provided any information on the distribution of seat matrix – Such information is provided by the counselling authority only before the counselling session is to begin – It thus cannot be argued that the rules of the game were set when the registration for the examination closed.

Constitution of India – Reservation – The Constitution (One Hundred and Third Amendment) Act 2019 – Articles 15(6) and 16(6) – Criteria for the determination of the EWS for the ten percent reservation – Challenge to – Held: Challenge to the very criteria for the determination of the EWS would not only require the matter to be heard at length but also to hear all interested parties – However, in view of the delay in the counselling process due to the pendency of this petition, it is deemed necessary to allow the counselling session to begin with the existing criteria for the identification of the EWS category – Judicial propriety does not permit to pass an interim order staying the criteria for determination of the EWS category – It is a settled principle of law that in matters involving challenge to the constitutionality of a legislation or a rule, the Court must be wary to pass an interim order, unless the Court is convinced that the rules are prima facie arbitrary – However, at this stage, without hearing all the interested parties at length on arguments, it would be impermissible to form a prima facie opinion on the alleged arbitrariness of the criteria – Further, in the midst of the pandemic, any delay in the recruitment of doctors would impact the ability to manage the pandemic – Hence, it is necessary to avoid any further delays in the admission process and allow counselling to begin immediately – The implementation of EWS reservation in AIQ seats in NEET UG and PG seats for the academic year of 2021-2022 is allowed – EWS category be identified in view of the criteria in O.M No. 36039/1/2019 – Challenge to the validity of the criteria determined by the Pandey Committee for the identification of the EWS category be listed for final hearing.

Directing the matter to be listed for final hearing on challenge to the validity of the criteria determined by the Pandey committee for the identification of the EWS category, the Court

HELD: 1.1 On its part, this Court initially subscribed to the binary of merit and reservation. Articles 14, 15(1) and 16(1) were thought to embody the general principle of formal equality. Articles 15 (4) and 16 (4) were understood to be exceptions to this general principle, advancing the cause of social justice. This Court sought to balance these competing imperatives. In such an understanding, merit is equated to formal equality of opportunity which has to be balanced against the concerns of social justice through reservation. In MR Balaji v. State of Mysore a Constitution Bench of this Court observed that Article 15 (4) is an exception to Article 15 (1), which was introduced ¯because the interests of the society at large would be served by promoting advancements of the weaker elements in the society. However, since Article 15 (4) (or reservation) was considered at odds with the notion of formal equality under Article 15 (1), which is broadly understood as complying with the principle of merit, this Court observed that there should be a cap on reservations, which it specified generally should be 50 percent. This view was followed by this Court in subsequent judgements where a special provision made for the benefit of a class was seen as a deviation from the principle of formal equality. However, the dominant view of this Court was challenged by the Justice R Subba Rao in his dissent in T. Devadasan v. Union of India, where the learned judge stated that Article 16 (4) is not an exception but rather a facet of Article

16 (1), which seeks to redress the historical disadvantage suffered by certain communities. The view expressed by Justice Subba Rao was adopted by this Court in State of Kerala v. NM Thomas, which transformed the equality jurisprudence in India from that of formal equality to substantive equality; thus, also changing our understanding of reservations. The majority of the judges accepted that special provisions (including reservation) made for the benefit of any class are not an exception to the general principle of equality. Special provisions are a method to ameliorate the structural inequalities that exist in the society, without which, true or factual equality will remain illusory. Justice KK Mathew in his concurring opinion observed that while equality under Article 16 (1) is individual-centric (which was the view of the majority – Justice Mathew and Justice Beg‘s majority opinions, and Justice Khanna and Justice Gupta‘s dissents), the manner in which it is to be achieved is through the identification of groups that do not enjoy equal access to certain rights and entitlements. Thus, the learned judge envisaged that equality of individuals is to be achieved by addressing the structural barriers faced by certain classes of citizens, which he called the “conditions and circumstances [that] stand in the way of their equal access to the enjoyment of basic rights or claims”. Justice Krishna Iyer and Justice Fazal Ali in their concurring opinions went a step further to argue that the content of Article 16 (1) is not individualcentric rather it aims to provide equality of opportunity to sections that face structural barriers to their advancement. Justice Krishna Iyer invoked Article 46 of the Constitution, which although unenforceable, was employed for giving effect to Article 16 (1). In his opinion both Articles 16 (1) and 16 (4) function to equalise group inequalities albeit in different contexts. Justice Fazal Ali in his concurring opinion noted that equality of opportunity under Article 16 (1) entails the removal of barriers faced by certain classes of society. They cannot be denied the right to equality and relegated to suffer backwardness only because they do not meet certain artificial standards set up by institutions. [Paras 1821][619-D-G; 620-E-F; 621-F; 622-E-G; 623-G-H; 624-A-B-F] T. Devadasan v. Union of India (1964) 4 SCR 680; CA Rajendran v. Union of India (1968) 1 SCR 721; State of Kerala v. NM Thomas (1976) 2 SCC 310 : 1976 (1) SCR 906; Indira Sawhney v. Union of India 1992 Supp

(3) SCC 217 : [1992] 2 Suppl. SCR 454 – followed.

MR Balaji v. State of Mysore [1963] Supp 1 SCR 439; Dr Jaishri Laxmanrao Patil v. Chief Minister (2021) 8 SCC 1 – referred to.

1.2 The binary of merit and reservation has now become superfluous once this Court has recognized the principle of substantive equality as the mandate of Article 14 and as a facet of Articles 15 (1) and 16(1). An open competitive exam may ensure formal equality where everyone has an equal opportunity to participate. However, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system. Special provisions (like reservation) enable such disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensuring substantive equality. The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also includes their social networks and cultural capital (communication skills, accent, books or academic accomplishments) that they inherit from their family. The cultural capital ensures that a child is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family’s standing. This works to the disadvantage of individuals who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities. On the other hand, social networks (based on community linkages) become useful when individuals seek guidance and advise on how to prepare for examination and advance in their career even if their immediate family does not have the necessary exposure. Thus, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as merit reproducing and reaffirming social hierarchies. [Para 24][627-BG; 628-A-B]

BK Pavithra v. Union of India (2019) 16 SCC 129: 2019] 7 SCR 1086 – relied on.

1.3 This is not to say that performance in competitive examination or admission in higher educational institutions does not require a great degree of hard work and dedication but it is necessary to understand that merit is not solely of one’s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one’s advancement. Thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making. But the idea of merit based on scores in an exam requires a deeper scrutiny. While examinations are a necessary and convenient method of distributing educational opportunities, marks may not always be the best gauge of individual merit. Even then marks are often used as a proxy for merit. Individual calibre transcends performance in an examination. Standardized measures such as examination results are not the most accurate assessment of the qualitative difference between candidates. At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, which are also shaped by lived experiences, subsequent training and individual character. The meaning of merit itself cannot be reduced to marks even if it is a convenient way of distributing educational resources. When examinations claim to be more than systems of resource allocation, they produce a warped system of ascertaining the worth of individuals as students or professionals. Additionally, since success in examinations results in the ascription of high social status as a meritorious individual, they often perpetuate and reinforce the existing ascriptive identities of certain communities as intellectual and competent by rendering invisible the social, cultural and economic advantages that increase the probabilities of success. Thus, the meaning of merit needs to be reconceptualized. For instance, if a high-scoring candidate does not use their talents to perform good actions, it would be difficult to call them meritorious merely because they scored high marks. The propriety of actions and dedication to public service should also be seen as markers of merit, which cannot be assessed in a competitive examination. Equally, fortitude and resilience required to uplift oneself from conditions of deprivation is reflective of individual calibre. [Para 25][628-G; 629-A-C; 630-B-E]

Michael Sandel, Tyranny of Merit: What‘s become of the Common Good (Penguin Boks), Ashwini

Deshpande, Social Justice Through Affirmative Action in India: An Assessment, in Jeannette Wicks-Lim and Robert Pollin (editors) Capitalism on Trial: Explorations in the Tradition of Thomas Weisskopf, Publisher: Edward Elgar Publishing Inc.

(Northampton, MA), 2013, Satish Deshpande, Pass, Fail, Distinction: The Examination as a Social Institution. Marjorie Sykes Memorial Lecture,

Regional Institute of Education, Ajmer, 3rd March, 2010. Published by the National Council for

Educational Research and Training, New Delhi – referred to.

1.4 It is important to clarify here that after the decision in NM Thomas there is no constitutional basis to subscribe to the binary of merit and reservation. If open examinations present equality of opportunity to candidates to compete, reservations ensure that the opportunities are distributed in such a way that backward classes are equally able to benefit from such opportunities which typically evade them because of structural barriers. This is the only manner in which merit can be a democratizing force that equalizes inherited disadvantages and privileges. Otherwise claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements. If merit is a social good that must be protected, the content of merit must first be critically examine. Scores in an exam are not the sole determinant of excellence or capability. Even if for the sake of argument, it is assumed that scores do reflect excellence, it is not the only value that is considered as a social good. The distributive consequences of merit must be looked at. Accordingly, how merit is assessed should also encapsulate if it mitigates or entrenches inequalities. An oppositional paradigm of merit and reservation serves to entrench inequalities by relegating reserved candidates to the sphere of incompetence, and diminishing their capabilities. While examinations are a necessary and convenient method to allocate educational resources, they are not effective markers of merit. The way merit is understood should not be limited to individual agency or ability (which in any event is not solely of our own doing) but it should be envisioned as a social good that advances equality because that is the value that our Constitution espouses. It is important to note that equality here does not merely have a redistributive dimension but also includes recognizing the worth and dignity of every individual. The content of merit cannot be devoid of what is valued in society. Based on the above discussion, it is difficult to accept the narrow definition of merit (that is, decontextualised individual achievement). Such a definition hinders the realisation of substantive equality. [Paras 27 and 28][633-D-G; 634-F-G; 635A]

Amartya Sen, “Merit and Justice” in Arrow KJ, et al (eds), Meritocracy and Economic Inequality

(Princeton University Press 2000) – referred to.

1.5 Coming to the issue of whether reservation can be permitted in PG courses, it is evident Article 15 (5) does not make a distinction between UG and PG courses. The Constitution enables the State to make special provisions for the advancement of socially and educationally backward classes for admission to educational institutions at both the UG and PG levels. While on certain occasions, this Court has remarked that there cannot be any reservation in SS courses, this Court has never held that reservations in medical PG courses are impermissible. In Pradeep Jain, this Court did not hold that reservation in PG courses is altogether impermissible. It was urged on behalf of the petitioners that for many individuals PG is the end of the road and therefore, the PG courses should be equated with SS courses and no reservation should be allowed in PG. It is difficult to accept this argument when this Court has time and again permitted reservation in PG courses. This argument merely seeks to create an artificial distinction between the courses offered at the PG level. Further, only certain medical fields do not have SS courses and on the basis of that it cannot be deemed that reservation is impermissible in PG as a whole. Crucially, the issue here is whether after graduation, an individual is entitled to reservation on the ground that they belong to a class that suffers from social and educational backwardness. It cannot be said that the impact of backwardness simply disappears because a candidate has a graduate qualification. Indeed, a graduate qualification may provide certain social and economic mobility, but that by itself does not create parity between forward classes and backward classes. In any event, there cannot be an assertion of over-inclusion where undeserving candidates are said to be benefitting from reservation because OBC candidates who fall in the creamy layer are excluded from taking the benefit of reservation. There is no prohibition in introducing reservation for socially and educationally backward classes (or the OBCs) in PG courses. [Para 29][635-B, D-E; 636-A-D]

Dr Preeti Srivastava v. State of Madhya Pradesh (1999)

7 SCC 120 : [1999] 1 Suppl. SCR 249; AIIMS Student Union v. AIIMS 2002 (1) SCC 428 : [2001] 2 Suppl. SCR 79; Saurabh Chaudri v. Union of India (2003) 11 SCC 146 : [2003] 5 Suppl. SCR 152 – referred to.

2.1 Having traced the evolution of the AIQ in UG and PG medical and dental courses, the following questions are answered: whether this Court in Pradeep Jain held that the AIQ seats that were to be filled by an open all- India examination should be free of reservation for the socially and educationally backward classes, and SC and ST as enabled by Article 15(4); and (ii) whether reservation in the AIQ can be provided only pursuant to a direction of this Court. This Court in Pradeep Jain was deciding on the constitutional validity of reservation based on domicile/residence. Having held that residence based reservation is constitutionally valid, the next question that this Court was tasked with was adjudicating the quantum of residence-based reservation that could be permitted. Referring to the decision of this Court in Jagdish Saran v. Union of India, it was held that there cannot be wholesale reservation (that is, 100 percent reservation). It was observed that a certain percentage of seats must be filled by open merit by an all-India examination without reservation based on residence. The Medical Education Review Committee had suggested that 75 percent of the seats in a medical college shall be reserved for residents of the State. This Court decided that it would be fair to reserve 70 percent of the seats for residents of the State. Therefore, 30 percent of the seats were to be filled through an all-India Examination. This would mean that candidates from all across the country could compete against the 30 percent seats available in State run medical colleges. In this context, this Court had observed, “such reservation should in no event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made” (paragraph 21). The Bench further observed that at least 30 percent of the open seats shall be available for admission of students on all-India basis irrespective of the State or University from which they come and such admissions shall be granted purely on merit on the basis of either all-India entrance examination or entrance examination to be held by the State (paragraph 21). The observation of this Court that AIQ seats must be filled purely on the basis of merit, cannot be interpreted to mean that there shall be no reservations in the AIQ seats. Merit must be socially contextualised and reconceptualized according to its distributive consequences where it furthers substantive equality in terms of Articles 15 (4) and 15 (5) of the Constitution. The reference to merit in paragraph 21 of the judgment must be read with the previous observations made in the judgment. [Paras 44 and 45][650-E-G; 651-A-D]

Dr Pradeep Jain v. Union of India (1984) 3 SCC 654 : [1984] 3 SCR 942 – clarified.

Jagdish Saran v. Union of India, 1980 AIR 820 : [1980]

2 SCR 831 – referred to

2.2 While discussing the constitutional validity of domicilereservation, it was observed that selection of candidates for admission based on the all-India open examination would further merit since it would permit the selection of the ‘best minds in the country’. In this context, it was observed that claims that would weigh with this Court in justifying the departure from the principle of merit-based selection are: (i) claim of State interest, where the students by view of their residence are expected to settle down and serve their State; and (ii) the regions’ claim of backwardness (paragraph 16). Further, it was observed that though theoretically, admissions in medical colleges should be based on an all-India examination since it would further merit and would provide equality of opportunity to candidates across the country, keeping in view the differing levels of social, economic, and educational development in different areas, factual equality would not be attained. Therefore, the AIQ seats shall be filed through an all-India examination purely on merit, must be interpreted only with reference to the discussion made on residence-based reservation and the necessity of an all-India examination for admission to medical and dental courses. References to ‘merit’ must therefore be read in the context of merit vis-à-vis residence reservation. This is further evident from the observation in paragraph 21 of the judgment where it was observed that “atleast 30 per cent of the open seats shall be available for admission of students on all-India basis irrespective of the State or university from which they come and such admissions shall be granted purely on merit on the basis of either all-India entrance examination or entrance examination to be held by the State’. The Bench thought it fit that admission through an all-India entrance examination would further merit, enabling the best minds all over the country to study medicine. This aspect was further clarified by the Bench in Dinesh Kumar (I) where this Court observed that the Union Government and the Medical Council for India had not taken any initiative to conduct an allIndia entrance examination for admissions to the AIQ seats. The intention of this Court in Pradeep Jain in creating an AIQ was solely to provide candidates from across the country the opportunity to study medicine in colleges in other parts of the country as well, owing to the unequal number of medical colleges (and opportunities) in different States. [Paras 46 and 47][651-FH; 652-A-D; 653-B-D] Dinesh Kumar (I) v. Motilal Nehru Medical College (1985) 3 SCC 22 : [1985] 1 Suppl. SCR 41 – discussed.

2.3 Reference was made to reservation of backward classes only for the limited purpose of determining the seat matrix. The observation in paragraph 21 in Pradeep Jain on the calculation of seat matrix was clarified in Dinesh Kumar (I). The Bench had clarified that after reservations (for the SC, ST and OBC provided by the States) validly made, 30 percent of the remaining seats would be reserved for AIQ. Therefore, according to the clarification in Dinesh Kumar(I) on the demarcation of seats, the first bifurcation should be between reserved and non-reserved seats, and the seats remaining in the open category must be bifurcated into State Quota and AIQ. It was thus, a three-fold vertical reservation, with the reserved category not being considered within either the AIQ or the State Quota. The logical fallacy of this method of demarcation of seats is that different States provide varying percentages of reservation. Therefore, the total percentage of unreserved seats would inversely depend on the percentage of reservation provided by the State. The State of Tamil Nadu raised this objection in Dinesh Kumar (II). Pursuant to this, it was held that the AIQ seats shall be determined without excluding any reservation validly made. The seats were first bifurcated to State quota and AIQ, and the vertical and horizontal reservations (for example, for persons with disabilities) were accommodated within the State quota. When the judgment in Dinesh Kumar (II) was pronounced, the Union Government had not yet made any decision on providing reservation in AIQ seats. It was subsequently in 2009 that the Union Government had taken a policy decision to provide reservation for the SC and ST categories in the AIQ. It is important to note that in Jayakumar and Rajeshwaran, the petitioners had sought a direction from this Court for providing reservation in the AIQ seats. In Rajeshwaran, this Court declined to ascertain if a person would be entitled to reservation in the AIQ seats. It was observed that if reservations for SC and ST categories is to be provided in the AIQ seats, it would cause difficulty in adjusting seats since the State and the Central lists would differ. However, when the Union Government submitted before this Court in Abhay Nath that it had taken the decision to reserve seats in the AIQ, it was clarified that there was no impediment against the implementation of such reservation. In Buddhi Prakash Sharma, there was a slight deviation from the settled jurisprudence. This Court had held that the total number of PG seats in AIQ would be 50 percent of the total seats without any exclusion for reservation. The Bench had interpreted the observation in Dinesh Kumar (II) that the AIQ seats would be determined without excluding reservations to mean that there would be no reservation in the AIQ. Therefore, since, Pradeep Jain did not preclude the AIQ seats from reservation, a three-Judge Bench in Abhay Nath clarified that the 50 percent AIQ seats in PG medical and dental seats would be inclusive of reservation for SC and ST categories. [Paras 4851][653-E, G-H; 654-A-C, E-H; 655-A-B] Dinesh Kumar (II) v. Motilal Nehru Medical College (1986) 3 SCC 727 : [1986] 3 SCR 345; Union of India v. Jayakumar (2008) 17 SCC 478; Union of India v. R. Rajeshwaran (2003) 9 SCC 294; Buddhi Prakash

Sharma v. Union of India (2005) 13 SCC 61 –

discussed.

3. In Abhay Nath, the Union Government had apprised this Court of its decision to provide reservation for the SC and ST categories in the AIQ. It had then, as a policy decision decided to only provide reservation for the SC and ST categories. The Parliament enacted the Central Educational Institutions (Reservation in Admission) Act 2006 in view of the enabling provision in Article 15(5). Section 3 stipulates that there shall be

15 percent reservation for the SC, 7.5 percent reservation for the ST, and 27 percent reservation for the OBC category in Central Educational Institutions. A Constitution Bench in Ashoka Kumar Thakur v. Union of India upheld the Constitutional validity of 27 percent reservation for the OBC category provided under the Act of 2006. Though the Act of 2006 would not be applicable to the seats earmarked for AIQ in State-run institutions since it would not fall within the definition of a Central educational institution under the Act, the Union of India in view of Article 15(5) has the power to provide reservations for OBCs in the AIQ seats. It is not tenable for the States to provide reservation in the AIQ seats since these seats have been surrendered’ to the Centre. It would also lead to the anomaly highlighted in Dinesh Kumar (II) since the percentage of reservation provided by different States differ, which would lead to an unequal percentage of seats available in the AIQ in different States. This is also coupled with the fact that the SC, ST and OBC lists are not uniform across States. Thus, it is the Union Government’s prerogative to introduce reservation in AIQ seats. [Para 53][655-F-H; 656-AD]

Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1: [2008] 4 SCR 1; Abhay Nath v. University of Delhi (2009) 17 SCC 705 – referred to.

4. The impugned notice providing reservation for the OBC and EWS categories in the AIQ seats was issued after the registration had closed but before the exam was conducted. Clause 11 of the information bulletin specifies that the reservation applicable would be notified by the counselling authority before the beginning of the counselling process, unlike the facts in Dr Prerit Sharma. The candidates while applying for NEET-PG are not provided any information on the distribution of the seat matrix. Such information is provided by the counselling authority only before the counselling session is to begin. [Para 58][659-F-G; 660-B-C]

Dr Prerit Sharma v. Dr Bilu Civil Appeal No. 3840 of 2020 – distinguished.

5. Conclusion- In view of the discussion above it is held that the reservation for OBC candidates in the AIQ seats for UG and PG medical and dental courses is constitutionally valid for the following reasons: (i) Articles 15(4) and 15 (5) are not an exception to Article 15 (1), which itself sets out the principle of substantive equality (including the recognition of existing inequalities). Thus, Articles 15 (4) and 15 (5) become a restatement of a particular facet of the rule of substantive equality that has been set out in Article 15 (1); (ii) Merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity. Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character. Crucially, open competitive examinations do not reflect the social, economic and cultural advantage that accrues to certain classes and contributes to their success in such examinations;

(iii) High scores in an examination are not a proxy for merit. Merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value. In such a context, reservation is not at odds with merit but furthers its distributive consequences; (iv) Articles 15

(4) and 15 (5) employ group identification as a method through which substantive equality can be achieved. This may lead to an incongruity where certain individual members of an identified group that is being given reservation may not be backward or individuals belonging to the non-identified group may share certain characteristics of backwardness with members of an identified group. The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer; (v) The scheme of AIQ was devised to allot seats in State-run medical and dental institutions in which students from across the country could compete. The observations in Pradeep Jain that the AIQ seats must be filled by merit, must be read limited to merit vis-à-vis residence reservation. This Court in Pradeep Jain did not hold that reservation in AIQ seats is impermissible; (vi) The Union of India filed an application before this Court in Abhay Nath placing the policy decision of the Government to provide reservation for the SC and ST categories in the AIQ seats since until then in view of the confusion on demarcation of seat matrix, there was no clarity on whether reservations could be provided in the AIQ seats. The Union Government was not required to seek the permission of this Court before providing reservation in AIQ seats. Therefore, providing reservation in the AIQ seats is a policy decision of the Government, which will be subject to the contours of judicial review similar to every reservation policy; (vii) It was clarified in Dinesh Kumar (II) that the total seats demarcated for AIQ shall be determined without excluding reservation as was earlier directed by Pradeep Jain and clarified in Dinesh Kumar (I). However, this Court in Buddhi Prakash Sharma had erroneously construed the clarification in Dinesh Kumar (II) to mean that there should be no reservation in AIQ seats. Therefore, the order in Abhay Nath was only clarificatory in view of the observations in Buddhi Prakash Sharma; and (viii) Clause 11 of the information bulletin specifies that the reservation applicable to NEET-PG would be notified by the counselling authority before the beginning of the counselling process. Therefore, the candidates while applying for NEET-PG are not provided any information on the distribution of seat matrix. Such information is provided by the counselling authority only before the counselling session is to begin. It thus cannot be argued that the rules of the game were set when the registration for the examination closed. The challenge to the constitutional validity of OBC reservation in AIQ seats introduced through the notice dated 29 July 2021 is rejected. [Para 59][660-D-H; 661-A-H; 662A-D]

Manjusree v. State of AP (2008) 3 SCC 512 : [2008]

2 SCR 1025; Maharashtra State Road Transport

Corporation v. Rajendra Bhimrao Mandve (2011) 10 SCC 51; Umrao Singh v. Punjabi University (2005) 13 SCC 365 : [2005] 5 Suppl. SCR 530; Tej Prakash Pathak v. Rajasthan High Court (2013) 4 SCC 540 – distinguished.

Saloni Kumari v Director General Health Services WP(C) No 596/2015; Gulshan Prakash v. State of Haryana (2010) 1 SCC 477: [2009] 16 SCR 1; Ashoka Kumar Thakur v. Union of India (2007) 4 SCC 361: 2007 (4 ) SCR 493; State of U.P v. Pradip Tandon [1975] 2 SCR 761; Nookavarapu Kanakadurga Devi v. Kakatiya Medical College AIR 1972 AP 83; Jagdish Saran v. Union of India, 1980 AIR 820 : [1980] 2 SCR 831; Dr Sandeep Sadashivrao v. Union of India (2016)

2 SCC 328 : [2015] 14 SCR 328 – referred to.

Indra Sawhney v. Union of India (AIR 1993 SC 477) : [1992] 2 Suppl. SCR 454; Janhit Abhiyan v. Union of India WP (C) 55/ 2019; Shantistar Builders v. Narayan K. Totame (1990) 1 SCC 520; Debraj Samanta & Ors. v. Medical Counselling Committee WP (C) No. 680 of 2021; B K Pavithra v. Union of India (2019) 16 SCC

129 : [2019] 7 SCR 1086; Pradeep Jain v. Union of India 1984 AIR 1420 : [1984] 3 SCR 942; Heart of Millions v. Union of India, 2014 (14) SCC 496 – referred to.

Volume 7, Constituent Assembly of India Debates,

30 November 1948, available at https://

www.constitutionofindia.net/constitution_assembly _debates/volume/7/19 48-11-30, Volume 9, Constituent Assembly of India Debates, 23 August 1949, available at https://www.constitutionofindia.net/constitution_ assembly_debates/volume/9/949-08-23, K.V Syamprasad, Merit and caste as cultural capital: Justifying affirmative action for the underprivileged in Kerala, India, Journal for Critical Education Policy Studies, Vol 17, p.50-81 (2019);. The Bench noticed the judgment in State of Haryana v, Subash Chander Marwaha, (1974) 3 SCC

220 where the Supreme Court upheld the decision of the State to not appoint all candidates who had secured the minimum percentage of marks.