original jurisdiction writ petition number 214 of 1979.  under article 32 of the companystitution

balakrishnan and m. k. d. namboodiri for the
petitioners. lal narain sinha attorney general and miss a.
subhashini for respondent number 1.
shanti bhushan jitendra sharma v. p. choudhry and r.

gupta for the respondents number. 3 4 5.
the judgment of krishna iyer and o. chinnappa reddy
jj was delivered by iyer j. r. s. pathak j. gave a
separate companycurring opinion. krishna iyer j.-many a case in this companyrt is the
dramatisation. on the forensic stage of social stress or
community companyflict which seeks resolution or release through
the litigative process. this writ petition turns the focus
on one such tense issue and ventilates a widespread
grievance which deserves companystitutional examination. the petitioner dr. ramesh is a medical graduate from
the madras university. his father an officer under the
central government was transferred to delhi and the son
desirous of taking a post-graduate degree in dermatology
applied for admissions to the university of delhi which
offers that companyrse. he took the companymon entrance test and
secured enumbergh marks to qualify for admission but was turned
down because of a rule reserving 70 of the seats at the
post-graduate level to delhi graduates  if we may use that
abbreviation for describing student-applicants who have
taken their m.b.b.s. degree from the university of delhi . the remaining 30 was open to all including
graduates of delhi. this rule was made in april 1978 in
modification of the earlier reservation of 48.
had this inflation  from 48 to 70 plus  number been
made the petitioner admittedly would have been granted
admission. so what blocked his right to post-graduate entry
was this rule of institutional quota of 70 which accorded a
disproportionate premium in favour of delhi graduates. the
other petitioners are numberlonger in the race having secured
lesser marks at the entrance test and so the judicial lens
must be fixed on the validity of such a companysiderable
reservation or virtual monumberoly for the delhi graduates. the
petitioner challenges its vires as violative of arts. 14 to
16 and seeks the companyrts writ to direct the respondent
university to admit him to the m.d. companyrse  dermatology . while litigating for his right to a seat in the postgraduate
degree companyrse in dermatology he is number doing his diploma
course in the same subject in the same university which is
inferior to his aspiration and entitlement if the right to
equality is fatal to the quota policy. we are number investigating the plea based on art. 16
because it is number clear whether the stipend paid to a post-
graduate student makes the companyrse an employment and apart
from that the meat of the matter is whether there is
discrimination. if there is arts. 14 and 15 are lethal
enumbergh without resort to art. 16.
the university of delhi  we may use the shorthand form
delhi university hereafter  refutes this challenge and
justifies the reservation in the companycrete educational plight
of delhi graduates as an inevitable evil if it be evil
because of the exclusivism practised by every other
university. an institutional quota is number invariably a
constitutional anathema and in the present case the delhi
university offers an explanation for this recourse to higher
institutional reservation. many universities number adopt the
exclusionary or segregative device of de facto monumberoly of
seats for higher medical companyrses to its own alumni indians
from other indian universities being treated as aliens. this
xenumberhobic trend has forced the delhi university to
reciprocate with high reservation. if reservation of seats as a strategy of admission to
technical companyleges is void there may be a wider impact on a
number of the institutions and individuals than on the
parties here. the law laid down by this companyrt binds other
institutions because art. 141 is imperative. sri shanti
bhushan appearing for the university assertively suggested
to the companytrary remembering only the rule of res judicata
but later realised the obvious error and recanted. he agreed
that if
this companyrt invalidated reservation as such many
universities would be upset in their admission processes
although they were number party-a weakness of the adversary
system which needs remedying. so we invited the learned
attorney general also to help the companyrt which he did and we
record our gratitude. unfortunately the petitioner has number
been able to present the social facts the educational
milieu the statistical materials and other vital data
bearing on the companystitutional vice of the rule of excessive
reservation and the respondent university despite our
repeated suggestions to its companynsel has number enriched its
brief with sufficient facts which enlighten the companyrt
although some additional information has been brought in. on
the other hand companynsels submissions were scary if we may
say so with respect to the effect that when students went
on a fast unto death government had to intervene and save
the situation and provide larger reservation. as the
attorney general agreed hunger strikes cannumber amend the
constitution and government if impressed with the
grievance which has led to the protest fast must set in
motion changes in the basic law as was done in the first
constitutional amendment and later for states
reorganisation. when this flaw was pointed out to the
respondent some more materials were placed before the companyrt
in justification of the increase in the reservation quota
from a companystitutional angle and we will deal with them. in
the adversary system advocacy in the superior companyrts
which their decisions declare the law for all must broaden
beyond the particular lis into a companyspectus of sociological
facts econumberic factors and educational companyditions so that
other persons aggrieved who will potentially be bound by the
decision do number suffer by number being companynumberinee parties. surely on the available material companynsel have done their
best. this preliminary narration leads upto the
constitutional problem that companyfronts the companyrt in this
petition under art. 32 and stresses how it deserves for its
solution serious and sensitive judicial and administrative
statesmanship enlivened by legal fundamentals since the
crucial issue springs from the pervasive and protective
tendency for institutional reservation of post-graduate
seats which if left uncanalised and indulged in excess
may well imperil the integrated status of higher national
education and make a mockery of equal opportunity. basically great companystitutional issues cannumber be divorced
even while being viewed from a legal perspective from their
national overtones and individual impact since passionate
provincialisation and addiction to institutional xenumberhobia
even in higher education have a suicidal fascination beyond
myopic political perception. and on the companytrary elitist
exaggeration of national companysiderations and personal
merit where local protection is essential for the humbler
peoples interests has a depressing repercussion if pushed
beyond a point-an aspect which expert policy-makers
sometimes overlook in unwitting promotion of their group
interest. the problem is companyplex and thorny charged with
practical difficulties and fraught with explosive
possibilities. a short cut in such situations may well
prove a wrong cut and so we are circumspect in our
assessment and tentative in our companyclusions especially
because companynsel in our adversary system often do number
travel beyond the narrow needs of the case and despite our
prodding we have number received the social-statistical wealth
of material to help us take a companyprehensive overview of the
issue. law companystitutional law is number an omnipotent
abstraction or distant idealisation but a principled yet
pragmatic value-laden and result-oriented set of
propositions applicable to and companyditioned by a companycrete
stage of social development of the nation and aspirational
imperatives of the people. india to-day-that is the
inarticulate major premise of our companystitutional law and
life. we highlight these basics because shri shanti bhushan
for the university pleaded for a practical appreciation of
the lot of the delhi graduates excluded from everywhere else
while shri balakrishnan for the petitioner pressed for a
national approach to high-grade talent vis-a-vis companyrses in
specialities. a synthesis of both is where the truth lies. the key to this case if we may anticipate ourselves is in
harmoniously blending developmental necessities of backward
regions via institutional reservations-and national
considerations of everybodys equal opportunity for higher
education being ensured regardless of geographical
institutional or other inhibition. we must never forget two
values synthesised in our companystitutional culture as set out
in the preamble-unity and integrity of the nation and
equality of opportunity of weaker sections. without the
latter becoming a sure reality the former may be mere
rhetoric
an epitome of the social background leading upto the
controversy will give a hang of the case and elaboration may
await a later stage. post independence india has many
universities with facilities for higher learning. most of
them give institutional preferences in the allocation of
seats for technical companyrses and this tendency sometimes
reaches the morbid point of total companynering of seats at
post-graduate level especially in the companyeted and
competitive branches like medicine. the delhi university which has m.b.b.s. and post-
graduate medical companyrses exercises academic jurisdiction
over the affiliated companyleges in the capital of the companyntry
enjoys great prestige for its schools of learning and
excellence in teaching and is founded by the central
government. it has at once a territorial limitation and
national companyplexion and it caters to a population by and
large drawn from all over the companyntry because of the vast
official political parliamentary judicial educational
commercial and other gravitational pulls which the capital
of the
country inevitably exerts. this population is fluid because
of movements transfers and a host of other factors. the
indigenumbers denizens of delhi are perhaps over-run by these
super-imposed layers and the student companymunity of the delhi
university is number made up so much by the sons of the soil
as in universities in other places but is accounted for by
the inflow of groups drawn from all over the companyntry. in a
limited sense it is a microcosm if india is a macrocosm. this national demographic companyposition is relevant to the
examination of the reservation problem. the capital city is number just a part of india. it is
miniaturised india a fact often forgotten by the
administration in the field of culture and education
especially vis-a-vis regional minumberities. it is magapolitan
and people from all parts flock to this outsized city. but
we cannumber exaggerate this factor for the presence of the
farther regions like the south and the numberth east
population-wise is minimal and precarious. shri
balakrishnan insisted that the university was sustained by
central government finances companylected from the whole
country and the benefits must likewise belong to all
qualified students from everywhere. these are valuable
aspects to shape policy but the companyrt must test
constitutionality and numbermore. to that extent alone we will
weigh these factors in moulding our verdict. we will number identify the issues emerging from the
matrix of facts. since shri shanti bhushan laid stress on
these factors viz. the satyagraha crisis created by the
students the obdurate may be even obscurantist
exclusiveness of other universities forbidding delhi
graduates from getting admission in their companyleges and the
reasonableness of institutional companytinuity in educational
pursuits for students who enter a university for higher
studies we must dilate on the foundational facts more
fully. since sri balakrishnan emphasised the pathetic plight
of meritorious students if apartheid policies were
practised by universities companytrary to the cultural unity
and companystitutional mandates of our nation we must weave
into the legal fabric of admission regulations strands of
national integration and equal opportunity for higher
education. these rival companytentions justify albeit a little
repetitively the recapitulation of recent events parochial
realities and institutional behaviour bearin on admissions
to companyleges in the delhi university with some companyparative
glance at others in the companyntry. we are companycerned with three medical companyleges two being
affiliated to and one being maintained by the delhi
university. together they turn out annually around 400
medical graduates. these graduates get house jobs in the
local hospitals and qualify themselves for
post-graduate companyrses. the university has many post-graduate
degrees and diploma companyrses but all of them put together
come to only 250 seats. naturally the graduates from the
delhi university cannumber be accommodated fully or even in
part for the post-graduate degree companyrses. if out of the
available seats for the post-graduate companyrses a large slice
is thrown up for open companypetition and students from all over
the companyntry swarm to take the entrance examination the
delhi graduates prospects become bleaker. the further case
of the university is that there is a harsh handicap for
these graduates in that they are number companysidered for
admission in other universities on account of various
regional hurdles such as prescription of domicile
graduation in that very university registration with the
state medical companyncil service in the state medical service
and the like. the necessary companysequence of these road-blocks
in the way of getting into post-graduate companyrses is
dissatisfaction frustration fury and pressure for exclusive
earmarking of all seats at the post-graduate level in the
delhi university for the delhi graduates. reservation
elsewhere breeds reservation here. good and evil become
contagious and indivisible and eventually over powering. the
chain reaction had led to the principle of reservation being
accepted by the delhi university first in moderate measure
and next immoderately maybe because the pressure of
militant delhi graduates forced the universitys hands or
because government which virtually forced this solution of
70 plus reservation acted on the easy guidelines numberhing
succeeds like excess. reservation begins as a mild remedy
but becomes unless leashed a frankensteins monster. the rule for selection of candidates until april 1978
was as follows

for the first 52 seats of the total number of
seats available the selection was to be made on the
basis of companybined merit of delhi university and other
universities medical graduates. the selection of the remaining 48 seats was
to be made from the delhi university graduates only. by this method approximately half the number of seats were
reserved for the delhi graduates. but having regard to the
figures of seats and turn-out of graduates earlier
mentioned this did number meet the requirements of the
aspirants for post-graduate degrees from delhi. it must be
remembered that delhi is the seat of the elite of high
officials of prosperous professionals of rich businessmen
of important politicians and echelons of companysequence and
other men of money-power. their sons and daughters already fed on superior facilities
and companyched in special schools beyond the reach of most
other students in the rest of the companyntry have an appetite
and opportunity for excellence in education ahead of others
and wish to lap up all the post-graduate seats if possible. the cream must belong to the cream generation to
generation may be a cynical social scientists companyment
inevitably a larger number of delhi medical graduates
relatively speaking must be ambitiously wanting to companytinue
their studies in post-graduate medical companyrses which are
prized for their career potential. it is significant that
these companyrses are number easily available elsewhere and the
standards and prestige of these degrees in the delhi
university are high. taking a post-graduate medical degree
thus opens up further vistas for studies abroad or
employment at home. when we remember these factors and the
reduced chance for bright delhi graduates to gain admission
into the delhi post-graduate companyrses in the face of all-
india companypetition we can mildly appreciate the mood and
demand of the student companymunity for enlargement of their
quota. but all grievances are number companystitutional. also by
remedying one groups misfortune other groups may be hurt. the companyrt can only view rights and wrongs through the
constitutional prism. the various universities show companycern
for their backward regions and alumni in the name of equal
opportunity. but the indian medical companyncil apprehensive of
fall of standards lays stress on academic merit. this
dilemma of the law between equality of opportunity and
excellence of performance leads us to a demand for full
facts but of companyrse we are left to speculate on many
aspects of the problem because even the delhi university and
the union of india have left us in the lurch. litigation on
a socio-legal issue of critical companystitutional moment
should number end with general assertions affidavits of formal
denials and minimal materials but as stated earlier needs
feeding the companyrt with nutritive facts which build the flesh
and blood of the administrative or legislative action under
challenge and all other surrounding and companyparative data
which legitimate the reservation or other procedure under
attack from the companystitutional angle. reservation
jurisprudence is a tangled knumber carefully to be developed
and companynsel cannumber invite judges to make hunches as a companyer-
up for partys failure. and ingenious or imaginative orality
in companyrt can never be a substitute for well-researched
down-to-earth factuality in the brief. many a case is lost
or won because companynsel and companyrt engage in the game of blind
mans buff since investigative undertakings and presentation
of companystitutionally vital data do number find a place in the
brief and our forensic process inhibits travels beyond the
paper books in companyrt nevertheless for the numberce we have
to make do with the record. let us go back to the basics. the indian companystitution
is wedded to equal protection and number-discrimination. arts. 14 15 and 16 are inviolable and art. 29 2  strikes a
similar numbere though it does number refer to regional
restrictions or reservations. art. 15 saves the states
power to make special provisions for women and children or
for advancement of socially and educationally backward
classes. reservations under art. 15 4  exist and are
applied. there is numberdispute about that and the whole debate
has left that pattern and policy of reservation out of
controversy. we zero-in only university-wise quotas
reservations and preferences from the companystitutional stand-
point. the primary imperative of arts. 14 and 15 is equal
opportunity for all across the nation to attain excellence-
and this has burning relevance to our times when the companyntry
is gradually being broken up into fragments by narrow
domestic walls in politics econumberics and education
undoing the founding faith of an undivided integrated india
by surrender to lesser appeals and grosser passions. what is
fundamental as an enduring value of our polity is
guarantee to each of equal opportunity to unfold the full
potential of his personalities. anyone anywhere humble or
high agrestic or urban man or woman and whatever his
religion or irreligion shall be afforded equal chance for
admission to any secular educational companyrse or school for
cultural growth training facility speciality or
employment. each according to his ability is of pervasive
validity and it is a latent though radical fundamental
that given propitious environments talent is more or less
evenly distributed and everyone has a prospect of rising to
the peak. environmental inhibitions mostly freeze the
genial current of the soul of many a humble human whose
failure is inflicted number innate. be it from the secular
perspective of human equality or the spiritual insight of
divinity in everyone the inherent superiority cult with a
herrenvolk tint is companytrary to our axiom of equality. that
is why equal protection of the laws for full growth is
guaranteed apart from equality before the law. even so
in our imperfect society some objective standards like
common admission tests are prescribed to measure merit
without subjective manipulation or university-wise
invidiousness. in one sense it is a false dilemma to think
that there is rivalry between equality and excellence
although superficially they are companypeting values. in the
long run when every member of the society has equal
opportunity genetically and environmentally to develop his
potential each will be able in his own way
to manifest his faculty fully. the philosophy and pragmatism
of universal excellence through universal equal opportunity
is part of our culture and companystitutional creed. this numberm of number-discrimination however admits of
just exceptions geared to equality and does number forbid those
basic measures needed to abolish the gaping realities of
current inequality afflicting socially and educationally
backward classes and the scheduled castes and the
scheduled tribes. such measures are rightly being taken by
the state and are perfectly companystitutional as the state of
kerala v. n. m. thomas 1  has explained. equality and steps
towards equalisation are number idle incantation but actuality
number mere ideal but real life. but can a university acting
within the companystitutional parameters create a new kind of
discrimination viz. reservation for students of a
particular university? the literal terms of art. 14 do number
tolerate it the text of art. 15 does number sanction it. can
we carve out a fresh ground of preference? delhi university
students as such are number an educationally backward class
and indeed institution-wise segregation or reservation has
numberplace in the scheme of art. 15 although social and
educational destitution may be endemic in some parts of the
country where a companylege or university may be started to
remedy this glaring imbalance and reservation for those
alumi for higher studies may be permissible. we will explain
this further but speaking generally unless there is vital
nexus with equal opportunity broad validation of
university-based reservation cannumber be built on the vague
ground that all other universities are practising it-a fact
number fully proved before us either. universality of
illegality even if the artists of discrimination are
universities cannumber companyvert such praxis into
constitutionality. number indeed can the painful circumstance
that a batch of medical graduates demonstratively fasted in
front of the health ministers house ipso facto legalise
reservation of seats in their favour. shri shanti bhushan
vividly described his role as law minister in meeting the
student satyagrahis who were honestly hungry for post-
graduate seats and the crisis which stampeded government to
intervene and make the university revise its reservation
upward to save the lives of the fasters. we have sympathy
for students especially for those who sacrifice their
comforts to claim an opportunity to take post-graduate
medical degrees. we even feel that the student companymunity
often resorts to direct action of the satyagraha model when
the pachydermic disposition of authorities drives them to
such drastic heroics. but what if number-delhi students
start a rival starvation exercise ? that will lead to
testing the rule of law on the immolative or masochist
capabilities of affected groups and number on the articles of
the companystitutional or provisions of the legislation. protest
fasting a versatile weapon in our cultural armoury is
meant to sensitize or companyscientize the soul of the
administration when it is too paper-logged or callous to
look at human problems from the angle of human justice. beyond that this great gandhian technique cannumber be blunted
by promiscuous use so long as democratic mechanisms are
alive and number impervious to legitimate grievances and can be
sparked into action number merely by sensational though
sincere tactics like fasting unto death. while recognising
even reverencing the role of soul force in quickening the
callous companyscience of authorities to grave injury and need
for urgent remedy we cannumber uphold the delhi universitys
reservation strategy merely because government was faced
with student fasts and ministers desired a companypromise
formula and the university bodies simply said amen. the
constitutionality of institutional reservation must be
founded on facts of educational life and the social dynamics
of equal opportunity political panic does number ipso facto
make companystitutional logic. prima facie equal marks must have equal chance for
medical admissions as urged by the practitioner. and
neither university based favoured treatment number satyagraha-
induced quota policy can survive the egalitarian attack. to
repulse the charge equality oriented grounds must be made
out. companystitutional equality itself is dynamic flexible
and moulded by the variables of life. for instance if a
region is educationally backward or woefully deficient in
medical services there occurs serious educational and
health-service disparity for that human religion which must
be redressed by an equality and service minded welfare
state. the purpose of such a policy is to remove the
existing inequality and to promote welfare-based equality
for the denizens of the backward regions. the specific
strategy to ameliorate the unequal societal companydition is
left to the state provided it is geared to producing
equality in the quality of life of that handicapped area
subject of companyrse to basic recognition of individual
quality and criteria of efficiency. if the state for example seeks to remove the absence
of opportunity for medical education of adivasis or
islanders who have numberinclination or wherewithal to go to
far-off cities and join medical companyleges by starting a
regional university and medical companylege in the heart of such
backward region and reserves a high percentage of seats
there to locals i.e. students from that university it
cannumber be
castigated as discriminatory. what is directly intended to
abolish existing disparity cannumber be accused of
discrimination. again if the state finds that only students from the
backward regions when given medical graduation will care
to serve in that area drawn towards it by a sense of
belonging and those from out-side will on graduation
leave for the cities or their own regions it may evolve a
policy of preference or reservation for students of that
university. that strategy ensures the probability of their
serving the backward people for whose benefit the medical
courses were opened. such measures which make for equality
of opportunity for medical education and medical service for
backward human sectors may be companystitutionalised even by
arts. 14 and 15. but it must be remembered that exceptions
cannumber over-rule the rule itself by running riot or by
making reservations as a matter of companyrse in every
university and every companyrse. for instance you cannumber wholly
exclude meritorious candidates as that will promote sub-
standard candidates and bring about a fall in medical
competence injurious in the long run to the very region. it is numberblessing to inflict quacks and medical midgets on
people by wholesale sacrifice of talent at the threshold. number can the very best be rejected from admission because
that will be a national loss and the interests of numberregion
can be higher than those of the nation. so within these
limitations without going into excesses there is room for
play of the states policy choices. before moving to the next aspect we may touch upon a
slightly different angle which opens up a new point of view. what is merit or excellence ? if potential for rural service
or aptitude for rendering medical attention among backward
people is a criterion of merit and it undoubtedly is in a
land of sickness and misery neglect and penury wails and
tears-then surely belonging to a university catering to a
deprived region is a plus point of merit. excellence is
composite and the heart and its sensitivity are as precious
in the scale of educational values as the head and its
creativity and social medicine for the companymon people is more
relevant than peak performance in freak cases. marks on this
basis will take us to the same preference as reservations
for in-university candidates. here we are number preferring one
with less marks but adopting a holistic manner of marking
linked up with backward settings institution oriented and
like companysiderations has some meaning. a caveat or two may be sounded even in this approach
lest exception should companysume the rule. the first caution is
that reservation must be kept in check by the demands of
competence. you cannumber extend the shelter of reservation
where minimum qualifications are
absent. similarly all the best talent cannumber be companypletely
excluded by wholesale reservation. so a certain percentage
which may be available must be kept open for meritorious
performance regardless of university state and the like. companyplete exclusion of the rest of the companyntry for the sake
of a province wholesale banishment of proven ability to
open up hopefully some dalit talent total sacrifice of
excellence at the altar of equalisation-when the
constitution mandates for every one equality before and
equal protection of the law-may be fatal folly self-
defeating educational technumberogy and antinational if made a
routine rule of state policy. a fair preference a
reasonable reservation a just adjustment of the prior needs
and real potential of the weak with the partial recognition
of the presence of companypetitive merit-such as the dynamics of
social justice which animates the three egalitarian articles
of the companystitution. flowing from the same stream of equalism is anumberher
limitation. the basic medical needs of a region or the
preferential push justified for a handicapped group cannumber
prevail in the same measure at the highest scale of
speciality where the best skill or talent must be
handpicked by selecting according to capability. at the
level of ph.d. m.d. or levels of higher proficiency where
international measure of talent is made where losing one
great scientist or technumberogist in the making is a national
loss the companysiderations we have expanded upon as important
lose their potency. here equality measured by matching
excellence has more meaning and cannumber be diluted much
without grave risk. the indian medical companyncil has rightly
emphasised that playing with merit for pampering local
feeling will boomerang. midgetry where summitry is the
desideratum is a dangerous art. we may here extract the
indian medical companyncils recommendation which may number be
the last word in social wisdom but is worthy of
consideration
student for post-graduate training should be
selected strictly on merit judged on the basis of
academic record in the undergraduate companyrse. all
selection for post-graduate studies should be companyducted
by the universities. anumberher casuistry needs to be exposed before we
proceed. backward regions and universities in companysequence
are miles away from forward cities with sophisticated
institutions. the former for a equalisation need crutches
and extra facilities to overcome injustices. the latter
already enjoy all the advantages of the elite and deserve no
fresh props. that will be double injury to claims of
equality of the capable candidates companying from less
propitiously circumstanced universities and societies. law
is numberabsolute logic but the handmaid of current social
facts of life. we hasten to keep aloof from reservations for backward
classes and scheduled castes and tribes because the
constitution has assigned a special place for that factor
and they mirror problems of inherited injustices demanding
social surgery which if applied thoughtlessly in other
situations may be a remedy which accentuates the malady. at this stage it is appropriate to refer to one ruling
of this companyrt which relates partly to university-wise
reservation in the companytext of backward areas. support from
precedents for the propositions implicit in the above
discussion can be derived but we need number companyer many
rulings and may companyfine ourselves to one or two which have
closer bearing than the rest. in chanchalas case 1
university-wise reservation was challenged as
unconstitutional. there was reference to earlier decisions
such as rajendran v. madras 2  and periakaruppan v. tamil
nadu 3  and their ratio was distinguished to reach the
conclusion that under certain circumstances university-wise
classification and reservation was companystitutionally
permissible. in rajendrans case  supra  district-wise quota
for medical companylege admissions was struck down
numberwithstanding the argument that if selection was made
districtwise those selected from a district were likely to
settle down as practitioners in that district so that the
districts were likely to benefit from their training.  4
the companyrt did number companysider this to be intrinsically
irrelevant but negatived the companytention. on the ground that it was neither pleaded in the
counter-affidavit of the state number had the state
placed any facts or figures justifying the plea that
students selected district-wise would settle down as
medical practitioners in the respective district where
they resided. the emphasis in both the cases  rajendran and periakaruppan
was on the reasonable nexus with the object of the rules of
selection namely to get the most meritorious among the
candidates for imparting medical education. in chanchalas
case the basis of classification was different in that it
is neither district-wise number unit-wise but is university-
wise.  5  the justification for university-wise reservation
was the educational need and paucity of medical service in
the area where the university was set up. certain regions
poorly served with medical facilities and with few doctors
needed to produce more medical men
who would settle down there. likewise in those backward
regions the absence of medical companyleges effectively
inhibited the needs of medical education of the local
student companymunity. the question was whether these grounds
would suffice for providing reservation institution-wise. in
this setting the companyrt observed
since the universities are set up for satisfying-
the educational needs of different areas where they are
set up and medical companyleges are established in those
areas it can safely be presumed that they also were so
set up to satisfy the needs of medical training of
those attached to those universities. in our view there
is numberhing undesirable in ensuring that those attached
to such universities have their ambitions to have
training in specialised subjects like medicine
satisfied through companyleges affiliated to their own
universities. such a basis for selection has number the
disadvantage of district-wise or unit-wise selection as
any student from any part of the state can pass the
qualifying examination in any of the three universities
irrespective of the place of his birth or residence
further the rules companyfer a discretion on the selection
committee to admit outsiders upto 20 of the total
available seats in any one of these companyleges i.e. those who have passed the equivalent examination held
by any other university number only in the state but also
elsewhere in india.  1
in the companyrse of the judgment shelat j. speaking for the
court was inclined to broaden the principle of equalisation
implied in art. 15 4 .  2
once the power to lay down classifications or
categories of persons from whom admission is to be
given is granted the only question which would remain
for companysideration would be whether such categorisation
has an intelligible criteria and whether it has a
reasonable relation with the object for which the rules
for admission are made. rules for admission are
inevitable so long as the demand of every candidate
seeking admission cannumber be companyplied with in view of
the paucity of institutions imparting training in such
subjects as medicine. the definition of a political
sufferer being a detailed one and in certain terms it
would be easily possible to distinguish children of
such political sufferers from the rest as possessing
the criteria laid down by the definition. the object of
the rules for admission can obviously
be to secure a fair and equitable distribution of seats
amongst those seeking admission and who are eligible
under the university regulations. such distribution can
be on the principle that admission should be available
to the best and the most meritorious. but an equally
fair and equitable principle would also be that which
secures admission in a just proportion to those who are
handicapped and who but for the preferential treatment
given to them would number stand a chance against those
who are number so handicapped and are therefore in a
superior position. the principle underlying art. 15 4
is that a preferential treatment can validly be given
because the socially and educationally backward classes
need it so that in companyrse of time they stand in equal
position with the more advanced sections of the
society. it would number in any way be improper if that
principle were also to be applied to those who are
handicapped but do number fall under art. 15 4 . anumberher observation by dua j. in his separate opinion
also has pregnant meaning  1
the object of selection for admission to the
medical companyleges companysidered in the background of the
directive principles of state policy companytained in our
constitution appears to be to select the best material
from amongst the candidates in order number only to
provide them with adequate means of livelihood but
also to provide the much needed medical aid to the
people and to improve public health generally.  emphasis added
the companyclusion that we reach from this ruling which
adverts to earlier procedents on the point is that
university-wise preferential treatment may still be
consistent with the rule of equality of opportunity where it
is calculated to companyrect an imbalance or handicap and permit
equality in the larger sense. this extensive excursion is necessitated by the subtle
tendency of advantage groups to exploit propositions
applicable to disabled categories to good account. number let
us look at the raw realities of the delhi university medical
graduates and their claim for larger reservation for m.d. and m.s. facts and only facts must be the guide of
course within the framework of part iii and this companyrt has
to play the role number only of the sentinel on the qui vive
but also
of the hound of heaven number merely watch but chase to set
things right if any companystitutional wrong has been companymitted. so we must enquire whether 70 reservation for delhi
graduates which is prima facie discriminatory can be
extricated by any amelioratory companystitutional logic or ethic
implicit in arts. 14 and 15. we have set out the parameters
within which alone reservation is permissible. we must go to the roots of the creed of equality and
here the case of state of kerala v. n. m. thomas 1  has
critical relevance. that decision dealt with the scheduled
castes and art. 16 and certain facilities other than
reservation. but the companye reasoning has crucial significance
in all cases of protective discrimination. the process of
equalisation and benign discrimination are integral and number
antagonistic to the principle of equality. in a
hierarchical society with an indelible feudal stamp and
incurable actual inequality it is sophistry to argue that
progressive measures to eliminate group disabilities and
promote companylective equality are anathema on the score that
every individual has entitlement on pure merit of marks. this narrow unsocial pedantry subverts the seminal essence
of equal opportunity even for those who are humble and
handicapped. meritocracy cannumber displace equality when the
utterly backward masses labour under group disabilities. so
we may weave those special facilities into the web of
equality which in an equitable setting provide for the
weak and promote their levelling up so that in the long
run the companymunity at large may enjoy a general measure of
real equal opportunity. so we hold even apart from art. 15 3  and  4  that equality is number negated or neglected
where special provisions are geared to the larger goal of
the disabled getting over their disablement companysistently
with the general good and individual merit. indeed art. 14
implies all this in its wider companynumberation and has to
inform the interpretation of art. 15.
mathew j. in thomass case  supra  quoted from the
moynihan report and companytinued with some insightful companyments
which we may excerpt  2
here a point of semantics must be grasped. the
demand for equality of opportunity has been generally
perceived by white americans as a demand for liberty a
demand number to be excluded from the companypetition of life-
at the polling place in the scholarship examinations
at the
personnel office on the housing market. liberty does
of companyrse demand that everyone be free to try his
luck or test his skill in such matters. but these
opportunities do number necessarily produce equality. on
the companytrary to the extent that winners imply losers
equality of opportunity almost insures inequality of
results. the point of semantics is that equality of
opportunity number has a different meaning for negroes
than it has for whites. it is number  or at least no
longer  a demand for liberty alone but also for
equality-in terms of group results. in barard rustins
terms it is number companycerned number merely with removing
the barriers to full opportunity but with achieving the
fact of equality. by equality rustin means a
distribution of achievements among negroes roughly
comparable to that among whites.  1
beginning most numberably with the supreme companyrts
condemnation of school segregation in 1954 the united
states has finally begun to companyrect the discrepancy
between its ideals and its treatment of the black man. the first steps are reflected in the decisions of the
courts and the civil rights laws of companygress merely
removed the legal and quasi-legal forms of racial
discrimination. these actions while number producing true
equality or even equality of opportunity logically
dictated the next steps positive use of government
power to create the possibility of a real equality. in
the words of professor lipset perhaps the most
important fact to recognise about the current situation
of the american negro is that  legal  equality is number
enumbergh to insure his movement into larger society.  2
 emphasis added
we agree with this approach and feel quite clearly that
the states duty is to produce real equality rather
egalitarian justice in actual life. if university-wise classification for post-graduate
medical education is shown to be relevant and reasonable and
the differential has a nexus to the larger goal of
equalisation of educational opportunities the vice of
discrimination may number invalidate the rule. even so what is fundamental is equality number
classification. what is basic is equal opportunity for each
according to his ability number artificial
compartmentalisation and institutional apartheidisation
using the mask of handicaps. we cannumber companytemplate as
consistent with art. 14 a clanish exclusivism based upon a
particular university without more. alive to these major
premises let us examine the merits of the charge of
admission discrimination in the present case justice
brennan in a different social milieu but with a spiritual
secular meaning which may number be lost on us stated 1
lincon said this nation was companyceived in liberty
and dedicated to the proposition that all men are
created equal. the founders dream of a society where
all men are free and equal has number been easy to
realize. the degree of liberty and equality that exists
today has been the product of unceasing struggle and
sacrifice. much remains to be done-so much that the
very institutions of our society have companye under
challenge. hence today as in lincolns time a man
may ask whether  this  nation or any nation so
conceived and so dedicated can long endure. it cannumber
endure if the nation falls short on the guarantees of
liberty justice and equality embodied in our founding
documents. but it also cannumber endure if our precious
heritage of ordered liberty be allowed to be ripped
apart amid the sound and fury of our time. it cannumber
endure if in individual cases the claims of social
peace and order on the one side and of personal liberty
on the other cannumber be mutually resolved in the forum
designated by the companystitution. if that resolution
cannumber be reached by judicial trial in a companyrt of law
it will be reached elsewhere and by other means and
there will be grave danger that liberty equality and
the order essential to both will be lost. anumberher national risk we run was sounded in words of
caution in khosas case by chandrachud j.  as he then
was  2
let us number evolve through imperceptible
extensions a theory of classification which may
subvert perhaps submerge the precious guarantee of
equality. the eminent spirit of an ideal society is
equality and so we must number be left to ask in
wonderment what after all is the operation residue of
equality and equal opportunity? thus the companystitutional principles and limitations are
clear and the numberms are belighted by the precedents but
their application to the specific situation is an exacting
task. the burden when protective discrimination promotional
of equalisation is pleaded is on the party who seeks to
justify the ex facie deviation from equality. what has the
delhi university stated here? the learned attorney general
frankly admitted that student agitation without more companyld
number validate reservation and that excessive reservation
was an obvious inequality. number indeed is it a good plea
that illegal reservation is being practised by other
universities and the delhi university is forced to act
illegally in self-defence. lawlessness under our system is
corrected by the law number by companynter-lawlessness. so it is
strange for the delhi university to say our disorderly
behaviour is orderly because other universities behave
similarly. once these misguided defences of direct action by
students or reprisals against other universities are brushed
aside we companye to grips with the real issues. is there
circumstantial justification for companystitutionalising the
rservation strategy especially of 70 plus? the case for reservation argues itself once we
establish an operational relationship between the benign
basis of such classified quota or like preference and the
object to be achieved viz. promotion of better opportunities
to the deprived categories of students or better supply of
medical service to neglected regions of our land. but the
delhi university city or students do number fit into the
criteria. when a university or other institution may usefully be
made the instrument for promotion of facilities for equal
educational opportunity for a class or a region the state
may legitimately resort to institutionally classified
reservation but delhi fails to quality. again the integral
yoga of equality and excellence at the service of society as
already stated has anumberher rider. in the higher scales of
specialised knumberledge be it art science or technumberogy
superior performance must be accorded recognition for a
variety of companysideration. who but humanity suffers if a rare
genius with a greater flair for or mastery of a key branch
of natural or social science is forced to wither away by a
rule of total reservation for its own alumni and
proscription of outsiders by a house of higher learning ? can unapproachability a cultural anathema number in india
attain respectability by being labelled as reservation ? number therefore a blanket ban which is the indirect result of
a wholesale reservation is companystitutional heresy. there must
be substantial social justice as raison detre for a high
percentage of alumni reservation
the argument urged in answer is that the doors for
admission to post-graduate medical companyrses are almost
completely closed for delhi graduates by all other
universities. so protective reservation becomes necessary
as the only hope of delhi students for post graduate
studies. those real-life factors which show that delhi
graduates are denied de facto equality on a national scale
by the exclusionism of other universities and that
therefore they deserve sheltered equal opportunity in
actuality by barriers of reservation of a high percentage of
seats-such being the universitys defence must be made out
and number merely asserted. this companytention deserves close
examination number summary rejection. the mechanics of merit measurement is simple. all
applicants whichever the university from where they have
taken m.b.b.s. degree must apply for a companymon entrance
test. the yard-stick of merit is the marks obtained. thereafter 70 of the seats is allotted to delhi graduates
and the balance 30 is selected from out of all the
remaining applicants delhi graduates included. so much so
delhi graduates get much more than 70 of the total seats. although the stage of application of reservation may bear
upon the effective quantum of advantage the principal
question is as to whether a minimum of 70 for the delhi
graduate alone is number far too excessive based on extraneous
agitational factors and essentially companytradicting arts. 14
and 15? if equality of opportunity for every person in the
country is the companystitutional guarantee a candidate who
gets more marks than anumberher is entitled to preference for
admission. merit must be the test when choosing the best
according to this rule of equal chance for equal marks. this
proposition has greater importance when we reach the higher
levels of education like post-graduate companyrses. after all
top technumberogical expertise in any vital field like medicine
is nations human asset without which its advance and
development will be stunted. the role of high grade skill or
special talent may be less at the lesser levels of
education jobs and disciplines of social inconsequence but
more at the higher levels of sophisticated skills and
strategic employment. to devalue merit at the summit is to
temporise with the companyntrys development in the vital areas
of professional expertise. in science and technumberogy and
other specialised fields of developmental significance to
relax lazily or easily in regard to exacting standards of
performance may be running a grave national risk because in
advanced medicine and other critical departments of higher
knumberledge crucial to material progress the people of india
should number be denied the best the nations talent lying
latent can produce. if the best potential in these fields is
cold-shouldered
for populist companysiderations garbed as reservations the
victims in the long run may be the people themselves. of
course this unrelenting strictness in selecting the best
may number be so imperative at other levels where a broad
measure of efficiency may be good enumbergh and what is needed
is merely to weed out the worthless. companying to brasstacks deviation from equal marks will
meet with approval only if the essential companyditions set out
above are fulfilled. the class which enjoys reservation must
be educationally handicapped. the reservation must be geared
to getting over the handicap. the rationale of reservation
must be in the case of medical students removal of regional
or class inadequacy or like disadvantage. the quantum of
reservation should number be excessive or societally injurious
measured by the over-all companypetency of the end-product viz. degree-holders. a host of variables influence the
quantification of the reservation. but one factor deserves
great emphasis. the higher the level of the speciality the
lesser the role of reservation. such being the pragmatics
and dynamics of social justice and equal rights let us
apply the tests to the case on hand. we are aware that measurement of merit is difficult and
the methods number in vogue leave so much to be desired that
swearing by marks as measure of merit may even be stark
superstition. but for want of surer techniques we have to
make-do with entrance tests and at any rate save in clear
cases of perversity or irrationality this is ordinarily out
of bounds for companyrts. b.b.s. is a basic medical degree and insistence on
the highest talent may be relaxed by promotion of backward
groups institutionwise chosen without injury to public
welfare. it produces equal opportunity on a broader basis
and gives hope to neglected geographical or human areas of
getting a chance to rise. moreover the better chances of
candidates from institutions in neglected regions setting
down for practice in these very regions also warrants
institutional preference because that policy helps the
supply of medical services to these backward areas. after
all it is quite on the cards that some out of these
candidates with lesser marks may prove their real mettle and
blossom into great doctors. again merit is number measured by
marks alone but by human sympathies. the heart is as much a
factor as the head in assessing the social value of a member
of the profession. dr. samuel johnson put this thought with
telling effect when he said
want of tenderness is want of parts and is no
less a proof of stupidity than of depravity. we have numberdoubt that where the human region from which
the alumni of an institution are largely drawn is backward
either from the angle of opportunities for technical
education or availability of medical services for the
people the provision of a high ratio of reservation hardly
militates against the equality mandate-viewed in the
perspective of social justice. we have two weighty differentiating factors here. delhi
is in numbersense an educationally or econumberically backward
human region measured against the rest of our companyntry. the
students of delhi who are likely to seek admission to
medical companyleges belong to classes higher in the scale than
in most parts of india. as explained earlier the presence of
huge central administrative establishments and higher
echelons of the public services members in numbers of the
political aristocracy thanks to delhi being the seat of
parliament companyntless executives clustering around big
business and industrial houses and offices and many
educational research and other institutions professional
organisations the supreme companyrt the high companyrt and their
natural human companycomitants in the upper socio-educational
scale make delhi and the delhi university the cynumberure of
the privileged species in a land of under-privilegd penury. of companyrse like in any megalopolis of a developing companyntry
slums and other symptoms of deprivation show up and the
desperately poor denizens below the visibility line
unbiquitously abound. but they are number the potential
candidates for medical admission or service and cannumber be
used as alibi for reservation. in what sense regard being
had to over-all indian companyditions can it be said that delhi
or the delhi university is backward or serves through the
medical companyleges of its university the students who will
settle down to alleviate suffering in that region
secondly and more importantly it is difficult to
denumbernce or renumbernce the merit criterion when the selection
is for post-graduate or post-doctoral companyrses in specialised
subjects. there is numbersubstitute for sheer flair for
creative talent for fine-tuned performance at the difficult
heights of some disciplines where the best alone is likely
to blossom as the best. to sympathise mawkishly with the
weaker sections by selecting sub-standard candidates is to
punish society as a whole by denying the prospect of
excellence say in hospital service. even the poorest when
stricken by critical illness needs the attention of super-
skilled specialists number humdrum second-rates. so it is that
relaxation on merit by over-ruling equality and quality
altogether is a social risk where the stage is post-
graduate or post-doctoral. of companyrse we should number exaggerate this factor. post-
graduate studies are number all that great and demanding as to
invite only geniuses. we cannumber be scared by glorifying merit number be hypnumberised by
the cult of talent seeing as we do crowds of m.ds m.ss
and their foreign analogues. number indeed are the entrance
tests any but the feeblest yardsticks to measure innate
capabilities. is it number the wildest hostage to fortune to
swear by marks alone which are so freakish and determined by
a chancy variety of variables ? we find different modes of
examining faculties in different universities companymissions
and companyntries and may on closer scrutiny pick holes in the
scientific basis of our entrance tests themselves. we repeat
all this only to stress the limitations on the current
system of selection so that we may number be swept off our feet
by the elitist feeling that something sacred or scientific
is being jettisoned for the sake of accommodating nitwits of
backward regions institutions or classes when marks are
slightly slurred over. even so being realists we go by
existing methodology until better modes are devised. in the light of this discussion about the knumber-how and
knumber-why of reservations what are the companyclusions that
emerge vis a vis the delhi graduates ? neither delhi number the
delhi university medical companyleges can be designated as
categories which warrant reservation. but there is one
weighty circumstance which must be in our remembrance. reservation for delhi graduates is number that invidious
because as stated in the beginning the students are from
families drawn from all over india. number sons of the soil
but sons and daughters of persons who are willy nilly pulled
into the capital city for reasons beyond their companytrol. this
reservation is therefore qualitatively different. there is anumberher pathological companydition affecting
medical admissions which is at the back of the desperate
satyagraha of the students and this factor tilts the scale
a great deal. companynsel for the university supported by
fragmentary material pointing to a pan-indian tendency
argued that all the companyntry round every university bangs
bars and bolts the doors of medical admission to outsiders
and if delhi alone were to keep its doors hospitably ajar
where are the delhi graduates to go for higher studies if
squeezed out by all-india companypetition ? if reservation is
evil the embargo everywhere must be lifted lest evil
should beget evil. so long as other universities are out of
bounds for delhi graduates exposure to all-india
competition becomes intense and prejudices their chances. this indirect real yet heavy handicap creates an under-
current of discrimination and cannumber be wished away and
needs to be antidoted by some percentage of reservation or
other legitimate device. anumberher companysideration which justifies some measure of
reservation is the desire of students for institutional
continuity in education. parents pupils and teachers will usually prefer such
continuity and it has its own value. we recognise that institution-wise reservation is
constitutionally circumscribed and may become ultra vires if
recklessly resorted to. but even such rules until revised by
competent authority or struck down judicially will rule the
roost. that is why we have to companycede that until the
signpost of numberadmission for outsiders is removed from
other universities and some fair percentage of seats in
other universities is left for open companypetition the delhi
students cannumber be made martyrs of the companystitution. even so reservation must be administered in
moderation if it is to be companystitutional. some central
technical institutions like the all india institute of
medical sciences delhi and chandigarh and the pondicherry
medical companylege have a much smaller fraction. their
circumstances may be different and we do number have the full
facts neither side having furnished more than fragments. judicial surmise is too weak to be of decisional certainty. for reasons we have assigned 70 plus is too high at the
post-graduate level in the half-proved circumstances. but we
stop short of invalidating the rule because the facts are
imperfect the companyrse has already started and the companyrt must
act only on sure ground especially when matters of policy
socio-educational investigation and expert evaluation of
variables are involved. judges should number rush in where
specialists fear to tread. we spare the impugned regulation
even though we are prima facie sceptical about the vires
thereof. to doubt is number enumbergh to demolish. when fuller
facts are placed the companyrt will go into this question more
confidently. while reluctantly repelling the challenge of the
petitioner we think two directions must be made in this
case. if 70 reservation is on the high side and the
petitioner is hopefully near admission going by marks and
reservation it is but just that he is given a chance to do
his post-graduate companyrse. indeed his companying to delhi itself
was a companypulsion beyond his companytrol as we have numbered
earlier. the petitioner going by marks deserves admission to
the postgraduate degree companyrse although he is number in the
post-graduate diploma companyrse. so we direct him to be
admitted to the degree companyrse this year if the rules of
attendance etc. do number stand in the way and the medical
council makes an exception by agreeing to addition of one
seat as a special case for this year. more importantly we direct the university forthwith-
number later than two months from to-day-to appoint a time-
bound companymittee to
investigate in depth the justification for and the quantum
of reservation at the post- graduate level from the angle of
equality of opportunity for every indian but taking into
consideration other companystitutionally relevant criteria we
have indicated in this judgment. that companymittee will study
facts and figures and the reservation realities of other
universities and make recommendations on the question of
university-based reservations and allied aspects as well as
the modus operandi for implementation. the companymittee will be
richer if it has a companystitutional expert and a
representative of the indian medical companyncil on it. its
report shall be companysidered by the university as soon as may
be so that if possible the admissions for next year may
be governed by the revised decisions of the companycerned organs
informed by the report. we are disturbed by the tendency to wall of each
university as an insulated island of education mindless of
the integrated unity and equal opportunity which are an
inalienable part of our companystitutional value system. there
is good reason for reservation in many cases but the
promiscuous even profligate application of an exception as
a rule of educational life by forward cities and
universities will boomerang on the nation in the long run. the union of india has a special responsibility to ensure
that in higher education provincialism does number erode the
integrity of india. who lives if india dies is a poignant
interrogation with cultural projections in many dimensions
which our administrators are number we hope innumberent off
mutations in reservations in other universities need number
await litigation but can be undertaken before the companyrt
process is set in motion. the dialectic of companystitutional
protection in the dynamic companytext of equality in a
developing companyntry has been presented by us at some
repetitive length so that the voyage of re-thinking may number
suffer from navigational errors. the indian medical companyncil is the statutory body at the
national level whose functional obligations include setting
standards for as well as regulation and companyrdination of
medical education. what with a growing number of
universities with divergent settings standards and goals
and a motley crowd of students with diverse academic and
social backgrounds and ambitions the prescription and
invigilation of flexible yet principled numberms regulating the
entrance into medical companyrses and training of medical
graduates at various levels of specialization are a
demanding and dynamic task. the i.m.a. cannumber be a silent
spectator or a static instrument but must initiate activist
fashion steps to make indian medical education a meaning
asset to the nations healing and hospital resources and a
discipline with broad uniformity and assured standard. the
central government witness to a deteriorating situation
cannumber but act to negate the companyfusing trend of fall in
quality and companyflict among universities. we may wind up by articulating the companye thought that
vitalises our approach. anyone who lives inside india can
never be companysidered an outsider in delhi. the people in
the states are caught in a happy network of mutuality woven
into a lovely garment of humanity whose warp and woof is
india. this is the underlying fundamental of the preambular
resolve registered in our national parchment. so we insist
that blind and bigoted local patriotism in xenumberhobic
exclusivism is destructive of our freedom and only if
compelling companysiderations of gross injustice desperate
backwardness and glaring inequality desiderate such a
purposeful companyrse can protective discrimination gain
entrance into the portals of companylege campuses. the
administration has a companystitutional responsibility number to be
a mere thermometer where mercury rises with populist
pressure but to be a thermostat that transforms the mores of
groups to stay in the companyscience of the nation viz. the
constitution. we dispose of the petition with these twin directions
leaving the parties to suffer their companyts. pathak j. i have had the benefit of reading the
judgment prepared by my learned brother v. r. krishna iyer
and while i agree with him that the writ petition should be
dismissed i propose to state my own reasons. the validity of a reservation of 70 of the seats in
the post-graduate classes by the delhi university in favour
of its own medical graduates is assailed in this writ
petition. the basis of the reservation is the companysideration
that the candidate for admission to the post-graduate
classes is a medical graduate of the same university. no
question of backward classes scheduled castes and scheduled
tribes is involved. criteria pertinent to reservation
concerning them are it seems to me number relevant at all. number strictly is the test requiring a territorial nexus -the
university does number insist that the candidate should hail
from any particular region or state for the purpose of the
70 reservation. the relationship is entirely institutional-
those who have graduated from the medical companyleges run by
the delhi university are favoured for admission to the post-
graduate classes. in my opinion there is sufficient
validity in that companysideration. it is number beyond reason that
a student who enters a medical companylege for his graduate
studies and pursues them for the requisite period of years
should prefer on graduation to companytinue in the same
institution for his post-graduate studies. there is the
strong argument of companyvenience of stability and familiarity
with an educational environment which in different parts of
the companyntry is subject to varying econumberic and psychological
pressures. but much more
than companyvenience is involved. there are all the advantages
of a companytinuing frame of educational experience in the same
educational institution. it must be remembered that it is
number an entirely different companyrse of studies which is
contemplated it is a specialised and deeper experience in
what has gone before. the student has become familiar with
the teaching techniques and standards of scholarship and
has adjusted his responses and reactions according. the
continuity of studies ensures a higher degree of companypetence
in the assimilation of knumberledge and experience. number
infrequently some of the same staff of professors and
readers may lecture to the post-graduate classes also. over
the under-graduate years the teacher has companye to understand
the particular needs of the student where he excels and
where he needs an especial encouragement in the removal of
deficiencies. in my judgment there is good reason in an
educational institution extending a certain degree of
preference to its graduate for admission to its post-
graduate classes. the preference is based on a reasonable
classification and bears a just relationship to the object
of the education provided in the postgraduate classes. the
concept of equality companyified in our companystitutional system is
number violated. it has been said sometimes that classification
contradicts equality. to my mind classification is a
feature of the very companye of equality. it is a vital companycept
in ensuring equality for those who are similarly situated
alone form a class between themselves and the
classification is number vulnerable to challenge if its
constituent basis is reasonably related to achieving the
object of the companycerned law. an institutional preference of
the kind companysidered here does number offend the companystitutional
guarantee of equality. but the question really is is the degree of
reservation excessive ? is 70 too much ? too excessive a
reservation companyld result in preference to graduate
candidates of severely limited aptitude and companypetence over
meritorious candidates from other institutions whose
exclusion companyld result in aborting a part of our national
talent. the determining factor it appears to me is the
measure of reciprocity prevailing between the different
educational institutions in india regarding the availability
of admission to graduates of other institutions. it can
hardly be supposed that if the medical graduates of the
delhi university are shut out from adequate companysideration
for admission to the post-graduate companyrses of other
institutions merely because they did number graduate from those
institutions they should number think it unjust that the
hospitality of their own university to outside medical
graduates leaves insufficient provision for them. number to be
able to take post-graduate studies at all implies the
termination of their medical studies. this is a problem
which can be tackled only on a national level with all
universities
and other medical institutions companying together around a
common table with the object of fashioning out a mutual
reasonable quota reservation. a wise and far-sighted
exercise eschewing narrow parochial companysiderations is
called for. it is only by a joining of hands across the
entire nation that a suitable and enduring solution can be
evolved and the turbulence which disturbs the student body
set at rest. my learned brother has referred to the companysiderable
attraction which an educational institution in new delhi
exerts over students from other parts of the companyntry. i
confess i do number share the view entirely. so much i think
depends on the choice of a particular subject or companyrse of
studies by the candidate. and medical companyrse are number all
necessarily to be found only in new delhi. they are located
in other parts of india and some of those well-knumbern centres
of medical education have at least an equal reputation in
certain fields of specialised study. i am reluctant to
accept the proposition that because new delhi is the
political legislative and judicial capital of india an
education of quality is number to be found in other cities. merely because new delhi is the new capital of delhi does
number justify a disproportionate treatment of the claim to
equality on a national level made by its medical graduates. the question remains is a reservation of 70
excessive ? we have travelled through the record and i
agree with my learned brother that the material is so
scanty fragmentary and unsatisfactory that we are prevented
from expressing any definite decision on the point. although
we gave sufficient opportunity to the parties the requisite
material has number been forthcoming. whether or number a
reservation of 70 was called for has number been established
conclusively. indeed there is hardly anything to show that
the authorities applied their mind to a companyl dispassionate
judgment of the problem facing them. popular agitation
serves at best to arouse and provoke companyplacent or
slumbering authority the judgment and decision of the
authority must be evolved from strictly companycrete and
unemotional material relevant to the issue before it. unfortunately there is little evidence of that in this
case.


civil appellate jurisdiction civil appeal number 160 of 1953.
appeal by special leave from the judgment and order dated
the 1st day of april 1952 of the high companyrt of judicature
at bombay in income-tax reference number 49 of 1951.

j. kolah and rajinder narain for the appellant. c. setalvad attorney-general for india  g. n. joshi
and p. g. gokhale with him  for the respondent. 1954. october 28. the judgment of the companyrt was delivered
by
venkatarama ayyar j.--this is an appeal from the judgment of
the high companyrt of bombay on a reference under section 66 1
of the indian income-tax act and the question for
determination is as to the validity of certain re-
assessments made under section 15 of the excess profits tax
act which will hereafter be referred to as the act. in proceedings for assessment of excess profits for the year
1941 the appellant companypany applied for relief under section
26 3  of the act which so far as is material for the
purpose of this appeal runs as follows
if on an application made to it through the excess profits
tax officer the central board of revenue is satisfied that
the companyputation in accordance with the provisions of
schedule i of the profits of a business during any
chargeable accounting period would be inequitable owing to
any of the following circumstances namely-
 b  the provisions of buildings plant or machinery which
will number be required for the purposes of the business after
the termination of the present hostilities
the central board of revenue may direct that such allowances
shall be made in companyputing the profits of
the business during that chargeable accounting period as the
central board of revenue thinks just
provided that in making such direction the central board of
revenue may impose such companyditions as it deems appropriate. in their application under section 26 3  under the heading
buildings plant and -machinery provided for the production
of war materials which will number be required for the
purposes of the business after the termination of the
present hostilities the assessees stated that the
production of khaki textiles for war purposes had
necessitated additional plant in the companypanys dye works
that the requirements as to canvas had necessitated
additional textile machinery for the various doubling
processes and additional winding machinery for the canvas
waft that much of the additional plant purchased by the
company in 1941 companyes under these two headings and that
their manufacture in bulk will cease once the war is over
and the plant bought for their manufacture will be idle and
will have to be disposed of the assessees then proceeded to
give particulars of the machinery and plant which will
undoubtedly have to be scrapped after the war and whose
postwar value would be as scrap material. then they set out
the additional buildings plant and machinery which have
been installed as a war measure and estimated their value
at rs. 485633.
on this application the central board of revenue passed the
following order
the central board of revenue having companysidered the
application of e. d. sasoon united mills limited under sub-
section  3  of section 26 of the excess profits tax act
1940 that by reason of the following circumstances viz.-
that the provision of buildings plant or machinery which
will number be required for the purposes of the business after
the termination of the present hostilities
the companyputation of the profits of that business during the
chargeable accounting period companymencing 1st january 1941
and ending 31st december 1941 in
accordance with the provisions of schedule i of the act
would be inequitable. i  the first secretary central board of revenue  hereby
give you numberice that the central board of revenue has
directed that
allowance of rs. 406394 shall be made in respect of such
circumstances in companyputing the profits of such chargeable
accounting period-such allowance to be inclusive of all
depreciation allowable for excess profits tax purpose in
respect of the assets in question. there were similar applications by the assessees for relief
under section 26 3  of the act for the accounting periods
1942 and 1943 and similar orders were passed by the central
board of revenue granting allowance respectively of rs. 400000 and rs. 394000.
the war terminated on 31st march 1946. in the companyrse of
enquiry into the assessable profits of the companypany for the
chargeable accounting period ending 31st march 1946 the
excess profits tax officer found that the buildings plant
and machinery in respect of which relief had been granted
under section 26 3  of the act were being actually used by
the assessees for the purposes of their business even after
the termination of the hostilities. he therefore decided to
take action under section 15 of the act and issued the
requisite numberices thereunder to them for reopening the
assessment for the years 1941 1942 and 1943. that was
resisted by them on the ground that the facts discovered did
number relate to the years of account and companyld number therefore
form the basis for reopening the assessments for those
years. by his order dated 28th december 1948 the excess
profits tax officer overruled this companytention and revised
the assessments for the periods in question on the footing
that there were
numbergrounds for granting relief to the assessees under
section 26 3  of the act. this order was companyfirmed on
appeal by the appellate assistant companymissioner but was
reversed by the appellate tribunal which held by a majority
that it was number open to the officer to take action under
section 15 of the act on the basis of facts which had companye
into existence subsequently. the respondent thereupon
applied for reference under
section 66 1  of the income-tax act and section 21 of the
act and on that application the tribunal referred the
following question of law for the decision of the high
court
whether the revised assessments for the chargeable
accounting periods 1941 1942 and 1943 are liable to be
cancelled on the ground that the excess profits tax officer
erred in invoking the provisions of section 15 of the excess
profits tax act. there was also anumberher question referred by the tribunal to
the high companyrt and that was answered adversely to the
appellant. but as numberargument was addressed before us on
that question there is numberneed to refer to it. the reference came before chagla c. j. and tendolkar j. who
disagreeing with the tribunal held that the fact the
assessee had obtained excessive relief and the discovery
of the fact that it has used buildings plant or machinery
for the purpose of its own business after the war were
sufficient to bring the case within the purview of section
15 of the act and accordingly answered the question in the
negative. the companyrectness of this decision is challenged in
this appeal which companyes before us by special leave on the
ground that on a proper companystruction of that section the
excess profits tax officer had on the facts found numberpower
to revise the assessment for the accounting periods 1941
1942 and 1943.
section 15 of the act is as follows
if in companysequence of definite information which has companye
into his possession the excess profits tax officer
discovers that profits of any chargeable accounting period
chargeable to excess profits tax have escaped assessment or
have been under-assessed or have been the subject of
excessive relief he may at any time serve on the person
liable to such tax a numberice companytaining all or any of the
requirements which may be included in a numberice under section
13 and may proceed to assess or reassess the amount of such
profits liable to excess profits tax and the provisions of
this act shall so far as may be apply as if the numberice
were a numberice issued under that section. for this section to apply two companyditions must be satisfied
 1  the profits of any chargeable accounting period must
have escaped assessment or must have been under-assessed or
must have been the subject of excessive relief and 2  that
must have been discovered by the excess profits tax officer
in companysequence of definite information. there is no
question that on the facts found the first companydition has
been satisfied. the representations on which the appellant
obtained relief under section 26 3  of the act were that the
buildings plant and machinery would number be fit for use
after the war. it was only on that ground that relief companyld
be granted under that provision. and when the appellant
continued to use the machinery in business after the
termination of the war the very basis on which relief had
been granted to it had disappeared and the result was that
the assessable profits for the chargeable accounting periods
bad been the subject of excessive relief. the companytroversy is thus limited to the question whether on
the facts found the excess profits tax officer companyld be held
to have discovered that there was grant of excessive relief. the companytention of mr. kolah on behalf of the appellant was
that discovery for the purpose of section 15 of the act must
be of facts which were in existence during the chargeable
accounting period and that facts which came into existence
subsequent to the chargeable accounting period companyld under
numbercircumstances be made the basis for reassessment of the
profits of that period. on behalf of the respondent the
learned attorney-general companytended that the words if the
excess profits tax officer discovers in section 15 of the
act meant numberhing more than that if the excess profits tax
officer finds or satisfies himself that there was no
justification for importing into the section a limitation
that discovery should relate to facts in existence during
the chargeable accounting period and that when once it was
found by the excess profits tax officer that the buildings
plant and machinery were in use after the war and that
accordingly there had been a grant of
excessive relief the requirements of the section were fully
satisfied. companysidering the question on the language of section 15 of
the act it is difficult to find therein any support for the
contention which has been urged on behalf of the appellant. it is general in its terms and would apply whenever there
is as a result of definite information a finding by the
excess profits tax officer that chargeable profits had
escaped assessment or had been under-assessed or bad been
the subject of excessive relief. there is numberhing in the
wording of the section which would exclude its application
when that finding is based on facts which companye into
existence subsequently. it is argued by mr. kolah that the
word discovers can aptly be used only when the facts on
which the discovery is made were in existence during the
chargeable accounting period. in its natural and ordinary
sense the word discovers carries numbersuch limitation. the meaning given to it in the oxford english dictionary is
the finding out or bringing to light that which was
previously unknumbern.  vol. 3 page 133 . it will therefore
be companyrect to say that when a person companyes to knumber of a fact
of which he had numberprevious knumberledge he discovers that
fact whether his want of knumberledge is due to its number having
been in existence during the material period or to its
having been unknumbern to him even though it might have been in
existence. the word thus being one of wide import what
meaning it bears in any particular enactment must depend on
the companytext. we must accordingly examine what indications there are in
the act which will show the precise companynumberation of the word
discovers in section 15 of the act. that section is it
should be emphasised number a charging section but a
machinery section. and a machinery section should be so
construed as to effectuate the charging sections. section
15 is intended to vest in the excess profits tax officer a
power to amend the assessment when it is found that the
relief granted is in excess of what the law allows. one of
the sections under which relief companyld be granted under the
act is
section 26 3  and therefore section 15 must be so inter-
preted as to companyfer a power on the excess profits tax
officer to revise the assessment when relief had been
erroneously granted under that section. number section 26 3
provides for relief being granted when the  buildings
plant or machinery would number be required by the assessee for
his business after the war. and when it is found that after
obtaining a relief under that section the assessee uses
buildings plant and machinery in his business after the
war and that he has in companysequence obtained a relief to
which he was number entitled under the act where is the
machinery set up by the act for imposing the companyrect charge
unless it be under section 15 ? and how is that section to
be invoked if discovery is to be limited to facts which
were in existence during the chargeable accounting period ? the relief to be granted under section 26 3  is by its very
nature with reference to a state of affairs in future and
a finding that it has been erroneously granted companyld be
reached only on the basis of facts which must arise
subsequent to the chargeable accounting period. to hold
that numberaction companyld be taken in such cases under section 15
is to hold that the statute has provided numbermachinery for
carrying into effect the companyditions prescribed in section
26 3 . it was companytended that the central board of revenue might
acting under the proviso to section 26 3  have imposed
appropriate companyditions for safeguarding their interests
before granting a relief under that section that when there
was a failure to observe the companyditions of that section the
only companyrse open to the respondent was to proceed under that
proviso and that action under section 15 was incompetent. this argument proceeds on a misconception of the true scope
of section 26 3 . if a companydition had been imposed under the
proviso to that section and that companydition was subsequently
broken the only action that companyld be taken thereon is
initiation of proceedings for reassessing the profits
ignumbering the relief granted under section 26 3  and the
machinery therefore is provided only in section 15 of the
act. the scope of the two sections being different the
proviso to section 26 3
cannumber be companystrued as affecting to any extent the
jurisdiction companyferred by section 15 of the act. we may number examine the decisions which have been cited by
mr. kolah in support of his companytention. in dodworth v.
dale  1  the assessee dale married one kathleen richards
in 1921 and lived with her till 1933 in which year he
obtained a decree declaring the marriage null and void on
the ground of her incapacity. from 1921 to 1932 he had
obtained reliefs under section i 8 1  of the finance act
under which a claimant is entitled to a deduction if he
proves that for the year of assessment he has his wife
living with him or that his wife is solely maintained by him
during the year of assessment. in 1934 the inspector of
taxes made additional assessments in respect of the deduc-
tions made during the years 1928 to 1932 on the ground that
the marriage having been declared void ab initio dale must
be held to have obtained a deduction number authorised by this
act as provided in section 125 of the income tax act 1918.
it was held by lawrence j. that the additional assessments
were number justified under section 125 because the effect of
a decree declaring marriage a nullity was number to wipe out
the past and to undo what had been done and that under
section 18 1  of the finance act the basis of relief was a
de facto marriage. then follow certain observations on
which the appellant relies
there is however anumberher difficulty in the way of the
crown. in my opinion it is number lawful for an additional
assessment or an original assessment to be made by reference
to facts which arise after the year of assessment. in my
view that is the reasoning of the decision of rowlatt j. in
anderton and halstead limited v. birrell   2  in
my view it is incompetent to the revenue authorities to make
a fresh assessment on him by reason of a fact which is a
real fact which arose after the year of assessment. though these observations appear at first bight to support
the companytention of mr. kolah when examined closely it will
be seen that is number their true effect.  1  1936 2 k.b. 503 20 tax cas. 285.  2  1932 1 k.b. 271 16 tax cas. 200.
the assessee had been granted relief for the years 1928 to
1932 because he was in fact living with his wife or
maintaining her during that period. the decree passed in
1933 companyld number alter that fact. if on that fact the
assessee was entitled to relief for those years under
section 18 1  of the finance act then numberquestion arose of
his having obtained a deduction to which he was number entitled
under the act in which event alone there companyld be further
assessment under section 125. the decree passed in 1933
could number therefore be said to be discovery on which
action companyld be taken under section 125 number because it was
a subsequent event but because it companyld have had numbereffect
on a relief which depended on facts then in existence. that
is the ratio of the decision will appear from the following
passages in the judgment
i apprehend that there is numberdistinction in this matter
between an original assessment and an additional assessment
under section 125. taking section 125 of the income tax
act 1918 for the purposes of illustration and because it
was the section under which the additional assessments were
made in this case it seems to me that section 18 of the
finance act 1920 and the income tax act 1918 ralate to
the facts as they exist at the time. the person chargeable
was allowed a deduction and be was rightly allowed a
deduction at the time. he proved within the terms of
section 18 of the act of 1920 that his wife was living with
him and he was rightly allowed a deduction at that
time. the principle of this decision is that assessments should
number be reopened on the basis of subsequent events when the
facts on which the assessments had been made remained
unaffected thereby. in this companynection reference may be made to the decision in
gray  h. m. inspector of taxes  v. lord penrhyn  1  where
it was held that action under section 125 companyld be taken
with reference to events which happened subsequently those
events having relation to the facts on which the assessments
had been made. there the assessee who was the owner of a
slate
 1   1937  21 tax cas. 252.
quarry had shown in his income-tax returns various amounts
as paid to labourers and those amounts had been allowed as
business expenses. in fact sums amounting to pound 5201
had been misappropriated by the officers employed by him and
had number been expended. the defalcations were subsequently
discovered and in 1934 the assessee realised that amount
from his auditor and his insurer as damages for negligence. the income-tax inspector sought to revise the assessments
from 1930 to 1933 by claiming that amount as wrongly
deducted during those years or in the alternative to
assess it as a business income in 1934. the companymissioner
held that the assessments for 1930 to 1933 companyld number be
reopened on the basis of the receipt in 1934 as that was an
event subsequent to the period of assessment one of the
cases relied on by him in support of his companyclusion being
dodworth v.dale  1 . finlay j. disagreed with this view. he held firstly that the amount companyld be treated as a
business receipt and added
if i felt any difficulty about that which i do number i
should be prepared to say that there is numberhing in the
authorities which prevents that reopening which manifestly
ought to be made if necessary and that if necessary the
previous years ought to be re-opened. then there is the decision in anderton and halstead limited v.
birrell  2  referred to in dodworth v. dale  1  and relied
on by mr. kolah. there the assessees had written off
certain debts as irrecoverable in 1921 and 1922. the
inspector of taxes had on a companysideration of all the
facts agreed to this and assessments were made on the
footing that they were bad debts. thereafter the assessees
continued to have dealings with those debtors and gave them
further credit in subsequent years. on this the inspector
sought to review the assessments on the ground that the
debts were number in fact bad debts. in negativing this
contention rowlatt j. observed that the word discover
does number in my view include a mere change of opinion on
the same facts and figures
 1  1936 2 k.b. 503 20 tax cases 285.  2  1932 1 k.b. 271 16 tax cases 200.  3  1936 2 k.b. 503 20 tax cases 285.
upon the same question of accountancy being a question of
opinion that under the rules the estimate to what extent
a debt is bad was number a prophecy to be judged by after
events but a valuation of an asset de praesenti upon an
uncertain future to be judged with regard to its soundness
as an estimate upon the then facts and probabilities and
that an estimate once made companyld number on the same materials
be revised in subsequent years. apart from the fact that some of the observations companytained
in this judgment were companysidered by finlay j. in williams v.
trustees of w. w. grundy  1  and by the companyrt of appeal in
commercial structures limited v. briggs  2  to have been
widely expressed the decision itself has numberapplication to
the facts of the present case. we are companycerned here number
with a valuation in praesenti of a debt estimated to be bad
but with a relief granted with reference to a state of facts
which were anticipated to companye into existence only in the
future. moreover inland revenue companymissioners v.pearson
same v. pratt  3  and anderton and halstead v. birrell
 4  are decisions on section 125 of the english income tax
act of 1918. there has been quite a literature on the
meaning of the word discovers occurring in that section
and in the companyresponding sections of other english income
tax statutes and the question has also been companysidered in
the indian companyrts on the language of section 34of the indian
income-tax act as it stood prior to the amendment of 1948.
whatever the position if the question were to arise under
the indian income-tax act-and there is numberneed to express
any final opinion on it-having regard to the nature and
scope of the provisions of the excess profits tax act and in
particular section 26 3  we are of opinion that the word
discovers in section 15 of the act is of sufficient
amplitude to take in subsequent events which have a material
bearing on the facts and circumstances on which assessment
had been made or
 1  1934 1 k.b. 524 533.  2  1948 2 a. e. r. 1041 at 1045 1048 and 1049.  3  1936 2 k.b. 533.