ORDER
1. The question that arises for consideration in this petition is whether there should be reservation for Scheduled Castes and Tribes, even in regard to Super Speciality/Post-Doctoral Courses in Education.
2. The petitioner is the holder of a M.B.B.S. Degree and a Post-Graduate degree in General Medicine, working as a Lecturer with Sri Jayadeva Institute of Cardiology (first respondent), an autonomous Institute. The first respondent is affiliated to Bangalore University and is recognised by Medical Council of India (second respondent). It conducts a Super Speciality/Post-Doctoral Course in Cardioloty, known as D.M. (Cardiology), the intake being three seats. Only persons who hold a M.D. degree in Medicine are eligible to be admitted to D.M. (Cardiology) Course. According to respondents, selection to the post doctoral course is purely on merit in pursuance of an all India Entrance Examination followed by a viva voce.
3. The petitioner claims to belong to a Scheduled Caste. He contends that there is a constitutional mandate to the State to make reservations for Scheduled Castes/Scheduled Tribes in all educational courses and Super Speciality courses are no exception; that is, in the absence of a specific bar in the Constitution excluding reservation for any specified course, there should be reservation for Scheduled Castes and Scheduled Tribes, at all levels of education, without exception. Therefore, the petitioner wrote a letter dated 29-11-1993 to the Medical Council in India seeking reservation in favour of SC/ST in the Super Speciality Course of DM (Cardiology). The Medical Council sent the following reply dated 15-12-1993 (Annexure-B):--
' . . . . Medical Council of India is not in favour of reservation of seats in admission to Post-Graduate Medical course to any category. The Council in its regulations on Post-Graduate Medical Education approved by the Government of India under the Indian Medical Council Act, 1956, has prescribed that students for post-graduate training should be selected strictly on merit.'Aggrieved by such refusal to make reservation for Scheduled Castes and Scheduled Tribes in Super Speciality Courses, the petitioner has filed this petition and sought quashing of the said communication dated 15-12-1993 from the second respondent and seeking a direction to the first respondent to reserve one seat for him, from the three seats available for the Super Speciality Course of D.M. (Cardiology) commencing from 1-1-1994.
4. The learned counsel for the petitioner contended that : (a) the Constitution has mandated reservation at all levels of education in favour of SC/ST, vide Art. 15(4) read with Article 46 of the Constitution;(b) neither the State nor any authority can dilute the reservation or act in derogation of such mandate and refuse reservation; and(c) omission to make reservations in favour of SC/ST candidates for Super Speciality Courses is therefore unconstitutional.
5. On the other hand, the respondents contended that in regard to the Super Speciality Courses, reservation in favour of the Scheduled Castes and Scheduled Tribes is neither contemplated nor provided for and there is no constitutional mandate to reserve seats for Scheduled Castes or Scheduled Tribes in any educational course, much less in Super Speciality Courses; on the other hand, the Constitution merely enables the State to make reservations for Scheduled Castes and Tribes as also for advancement of any socially or economically backward classes of citizens; that the Medical Council of India in its letter dated 27-2-1985 has informed all Medical Colleges, Post-Graduate Institutions, Universities and Government of its decision that 100% of the seats in Super Speciality Courses should be filled up on merit alone, on all India basis; and therefore, the petitioner cannot require any compulsory reservation and the petition was liable to be rejected.
6. Hence, the following two points arise for consideration : (a) Whether there is a constitutional mandate to reserve seats for Scheduled Castes and Scheduled Tribes in all educational courses, including Super Speciality Courses; (b) whether the decision of Medical Council of India that there shall be no reservation in regard to Super Speciality Courses is unconstitutional and arbitrary.
7. The petition is based on the assumption that there is a constitutional mandate requiring 'reservation in favour of SC/ST in regard to Education under Art. 15(4) and Art. 46. Article 15, Clause (1) provides that the State shall not discriminate against any citizen on grounds of only of religion, race, caste, sex, place of birth or any of them. Article 15, Clause (4) provides that nothing in Art. 15 or in Clause (2) of Art. 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Clause (4) of Art. 15 gives competence to the State to reserve seats for socially and economically backward classes of citizens, Scheduled Castes and Tribes in public educational institutions. In other words, the said clause only enables reservations but does not contain a mandate that there shall be reservation for Scheduled Castes/Scheduled Tribes or socially or economically backward classes, in all or any field of education. Being an exception to clause (1) of Art. 15 which forbids discrimination, it is impermissible to read the said enabling provision in Art. 15(4), but for which, any reservation will be termed as unconstitutional, as a mandate to make reservations. Article 46 declares the objective of the State that it shall promote with special care, the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. This Article is in Chapter IV dealing with Directive Principles of State Policy and does not confer any justiciable or legally enforceable right to require reservation for Scheduled Castes and Scheduled Tribes in all fields and at all stages of education. The said two Articles relied on by the petitioner are therefore of no assistance to seek a mandamus to the respondents to make reservations in favour of SC/ST in higher fields of education. In contrast, reference may be made to Articles 330 and 332 of the Constitution which mandate the reservation of seats for: Scheduled Castes and Tribes in the House of i the People and Legislative assemblies of the States. In other words, if the State (which includes Medical Council in India under Art. 12) decides to make a reservation and such decision has a rational nexus with the object of reservation, such a decision will have the protection of Art. 15(4). But on the other hand, if the Medical Council of India, having regard to the facts and circumstances has decided that there should not be any reservation for Post-Doctoral Super Speciality Courses, it cannot be compelled to make reservations.
8. I am fortified in my said view by the following observations of the Bombay High Court in Anil v. Dean, Govt. Medical College, Nagpur, : AIR1985Bom153 , made with reference to backward classes, but equally applicable in the case of Scheduled Castes (at page 156 of AIR) :
'Clause (4) of Art. 15 of Constitution does not confer any right, much less a fundamental right, in the classes, castes or tribes specified in that clause, to have seats reserved for them in services or educational institutions. But, it is only an enabling provision. It does not make it obligatory on the State to make special provision for the advancement of backward classes but merely leaves it to its discretion to take suitable action if found necessary. No right as such can be carved out on the basis of clause (4) of Art. 15 ........The provision made in Art. 15(4) is only by way of exception to the fundamental right guaranteed under clause(l) of Art. 15 and clause (2) of Art. 29 and that it is only an enabling provision. It cannot therefore be said that any right is guaranteed to the backward communities or classes under that clause.'
9. I may now refer to the three decisions relied on by the petitioner in support of his case. At the outset, it should be mentioned that none of the three cases dealt with the question whether the State can be required or compelled to provide reservation in a particular field of education. On the other hand they are cases where the validity of certain reservations made by the State came up for consideration.
9.1 The first case relied on by the petitioner is State of Madhya Pradesh v. Kum. Nivedita, AIR 1991 SC 2045 wherein the Supreme Court held:--
'It cannot be disputed that the State must do everything possible for the upliftment of the Scheduled Castes and Scheduled Tribes and other backward communities and the State is entitled to make reservations for them in the matter of admission to medical and other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as would make the reservation effective and would benefit the candidates belonging to these categories for whose benefit and welfare the reservations have been made. In any particular situation, taking into consideration the realities and circumstances prevailing in the State it will be open to the State to vary or modify the conditions regarding selection for admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made and if there be no law to the contrary.'
But these are general observations and do not deal with reservations at the highest levels of education like Super Speciality Courses.
9.2 The next is the case of Dr. Jagadish Saran v. Union of India, : [1980]2SCR831 wherein the Supreme Court observed (Para 22):--
'The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scales of 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 technologist in-the-making is a national loss, the considerations we have expanded upon as important, loss their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk.....'
The learned Counsel for petitioner strongly relied on para-25 extracted below to contend that the above observation did not apply to reservations in favour of Schedule Castes :
'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 is applied thoughtlessly in other situations may be a remedy which accentuates the malady.'
But the further observations in paras 39, 40 and 44 of the said decision, make it clear that the observations against reservation in super speciality courses, were meant to apply to all types of reservations without exception :-
'If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another 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 educating like post graduate courses. After all, top technological expertise in any vital field like medicine is a nation's 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 country's development in the Vital areas of professional expertise. In science and technology 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 advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce. If the best potential in these fields is cold shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless. (Para 39)
A host of variables influence the quantification of the reservation. But one factor deserves great emphasis. The higher the level of the specialty 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 (Para 40).
Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post-graduate or post-doctoral courses in specialised subjects. There is no substitute for sheet flair, for creative talent, for fine-turned performance at the difficult heights of some disciplines where the best alone is likely to blossom at 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, not humdrum secondrates. 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.' (Para 44).
9.3 The last is the decision in Dr. Pradeep Jain v. Union of India, : (1984)IILLJ481SC , on the basis of which the Medical Council had taken a policy decision not to have any reservations in super-specialty courses. In that case, after taking note of a policy statement filed by Government of India that admissions to post-graduate colleges and Special Professional Colleges should be on all India Merit subject to constitutional reservation in favour of Scheduled Castes and Tribes, the Supreme Court held (Para 22) :
'We are therefore of the view that so far as admission to post-graduate courses, such as M.S., M.D., and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post-graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a Medical College or University, may be given preference for admission to the postgraduate course in the same Medical College or University but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS Course. But,_even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neurosurgery and cardiology are concerned, there should be no reservation at all even, on1 the basic of institutional preference and admission should be granted purely on merit on all India basis.'
9.4 The above observations in Jagdish Saran and Pradeep Jain were no doubt made while considering the reservations based on requirements of domicile/residence or institutional preferences, and not in a case dealing with reservations for scheduled castes and tribes. But the general sweep and context make it clear that whatever be the position in regard to post-graduate courses, in so far as Super Speciality. Courses, there can be no reservations at all, not even reservations in favour of Scheduled Castes and Tribes.
10. Considerable light is thrown on the subject by the Supreme Court in Indra Sawhney v. Union of India, : AIR1993SC477 wherein while answering the question whether reservations are anti-meritarian, Jeevan Reddy, J. speaking for the majority held thus :
'While on Art. 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarche) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organizations departments/institutions, in specialities and super specialities in medinine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g. Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable....Be that as it may we are of the opinion that in certain services and in respect of certain posts, application of the rule of reservation may not be advisable for the reason indicated hereinbefore. Some of them are (1) Defence Services including all technical posts therein but excluding civil posts; (2) All technical posts in establishment engaged in Research and Development including those connected with atomic energy and space and establishments engaged in production of defence equipment. (3) Teaching posts of Professors - and above, if any. 4. Posts in Super specialties in Medicine and engineering and other scientific and technical subjects. 5. Posts of pilots (and co-pilots) in Indian Airlines and Air India. The list given above is merely illustrative and not exhaustive. It is for the Government of India to consider and specify the service and posts to which the Rule of reservation shall not apply but on that account the implementation of the impugned Office Memorandum dated 13th August, 1990 cannot be stayed or withheld.'
The said observations are made with reference to Article 335 containing a Constitutional mandate that claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointments to services and posts in connection with the affairs of the Union or of a State consistent with the maintenance of efficiency of administration. The said observations made in the context of Art. 335 which contains a mandate that the claims of the SC/ST should be taken into consideration while making appointments to services and posts, will more strongly apply where there is no constitutional mandate and where there is merely an enabling provision for reservations.
11. The question whether reservations in favour of Scheduled Castes and Tribes can be made in regard to Super Speciality Courses, came up for consideration directly, before the Punjab and Haryana High Court in Faculty Association, PGI of Medical Education & Research v. Union of India, . The Court while holding that any such reservations was invalid observed :
'I am not suggesting that there should not be any reservation for these categories at all, but such reservations must stop at higher levels. The persons belonging to these categories have already reached quite high because of the reservations for them and that too without competing with the general category candidates. Why should not such candidates rub shoulders with the general category candidates at the higher levels where sophisticated skill and professional expertise of very high degree is required ?........It would be reasonable to say that at the higher levels of education in medicine, there should not be any reservation at all.'
12. I respectfully agree with the above observations. If the constitution intended to provide reservation in regard to all courses, classes, fields and levels of education, then instead of incorporating merely an enabling clause like Art. 15(4), there would have been a mandate as in the case of Articles 330 and 332. Article 15 as originally formulated was in absolute terms, barring any form of discriinitiation. Clause (4) of Article 15 was introduced by the Constitution (First Amendment) Act, 1951, as an exception to the absolute bar of discrimination, giving competence and discretion to the State to make reservations by way of special provisions, wherever necessary, for the advancement of any socially and educationally beck-ward classes of citizens of for the Scheduled Castes and the Scheduled Tribes. The Supreme Court, while interpreting this provision, has reiterated, that higher the level of education, the lower should be the reservation and ultimately in case of highest fields of education like Super Specialities and post-doctoral courses, there shall be no reservations of any kind at all, the criterion for selections and admissions being merit and merit alone. The reasons are not far to seek. Firstly, in the highest levels of education, to make selections, otherwise than by merit, is detrimental to the national and public interest. Secondly the need for making a special provision, itself disappears in the case of students aspiring for the highest level in education as persons who can apply for super speciality and postdoctoral courses are already post-graduates in the Medicine.
13. There are some verified fields where merit and knowledge can be and should be the only criteria and regional, institution, social, economical and political reservations and considerations should take a back seat. Reservations are exceptions to the rule of bar on discrimination; and super speciality courses are exceptions to the rule of reservations. It is true that reservations are not 'anti-meritarian' in a sense, as observed by the Supreme Court in Indra Sawhney v. Union of India, AIR 1993 SC 575 (Para 111):
'It cannot also be ignored that the very idea of reservation implies selection of a less meritorious persons. At the same time, we recognise that this much cost has to be paid, if the consitutional promise of social justice is to be redeemed. We also firmly believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with - and may, in some cases, excel - members of open competitor candidates. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes and that what is required is an opportunity to prove it. It may not, therefore, be said that reservations are anti-meritian.'
The Supreme Court thereafter proceeded to illustrate the higher levels where reservations should not be made, by observing that at such levels, merit alone should count. Therefore, if the Medical Council by taking note of the fact that knowledge and merit the indispensible to Super Speciality Courses, has decided that they alone should be the criteria, and there should be no reservation of any kind in such courses, the decision is justified and is neither unconstitutional or arbitrary. Petitioner is not entitled to seek a direction to the Medical Counsel to provide reservation in Super Speciality Courses.
Hence the petition fails and it is rejected.
14. Petition dismissed