Madras High Court
V. Vijayamelu (Minor) Represented By ... vs The Director Of Medical Education And ... on 8 January, 1990
Equivalent citations: (1990)1MLJ393
JUDGMENT Sathiadev, J.
1. Petitioner in W.P.No. 8142 of 1987 is the appellant herein and the respondents therein are the two respondents herein.
2. The relief claimed in the writ petition is for issue of Writ of mandamus directing the respondents to admit the petitioner in the First Year Integrated M.B.B.S. Course in any one of the Government Medical Colleges in Tamil Nadu. She belongs to Kattunayakan community, which is a notified Scheduled Tribe in the State of Tamil Nadu. She applied in July, 1987 for a seat in M.B.B.S. Course for the academic year 1987-88 and she secured 170.8 marks out of 250 marks which works out to 68.32% but yet, she was not selected even though a reservation of 18% of Medical seats was made for Scheduled Castes and Scheduled Tribes (hereinafter referred to as SC/ST). Though second respondent is obliged in law to reserve a separate quota of seats for ST, by fixing 18% of seats together for SC/ST, the Scheduled Tribes do not get seats in Medical Colleges in proportion to their population. As per 1981 Census, they form 1% of the total population in Tamil Nadu, and thus they will be entitled to allotment of 11 seats in Government Medical Colleges. Even though the Government of India and other State Government do not club together Scheduled Castes and Scheduled Tribes for employment and education, it is only in Tamil Nadu, this procedure which is contrary to the directives in Article 46 of the Constitution of India, is being followed. This failure on its part, deprives her from securing admission, in spite of her securing 68% in the selection process.
3. Learned Judge dismissed the Writ Petition in limine by holding that there cannot be any compulsion to reserve separate seats for SC/ST, because Article 15(4) is an enabling provision and not a mandate, and that petitioner had addressed to wrong quarters for relief. It is on being aggrieved with this approach made, without even entertaining her writ petition of this nature this writ appeal is preferred.
4. In the Writ appeal, respondents have filed a counter claiming the petitioner has secured 170.8 marks out of 250 in the total marks inclusive of Entrance Examination marks, and that the cut-off marks for SC/ST Community is 199.10 during the year 1987-88 session. As her aggregate mark was below the cut-off marks, she was not selected. As per the policy of the Government, 18% seats have been reserved for a SC/ST Community combined together. Having applied under the prescriptions for admission, and accepting them having partaken in the Entrance process, she cannot now question the system of reservation of seats. In the 1981 Census, out of the total population in Tamil Nadu, Scheduled Tribes constituted 1.07%. Hence, separate reservation of seats for the members of the Scheduled Tribes Community is not called for. As Constitution of India does not prescribe any separate reservation of seats for Scheduled Tribes in educational institutions, and when Article 15(4) is an enabling provision; the relief claimed is liable to be rejected.
5. Mr. Abdul Kareem, learned Counsel for the appellant/petitioner, submits that, when the constitutional intention is to treat SC and ST as distinct and separate class of person and in the eye of law they being unequals, they could not be put together in extending a Constitutional protection to them. No doubt as held by the Supreme Court, Article 15(4) of the Constitution is not a mandate, but once the state decides to extend the benefit under the Constitution, it is prohibited from treating unequals as equals. Scheduled Tribes having been socially backward because of detestable discard practised against them by the vested majority Communities, in the evolution of achieving betterness, the Scheduled Castes having comparably better placed than Scheduled Tribes; but by locational habitation, the Scheduled Tribes who are still being deprived of achieving equal status with Scheduled Castes, are entitled to get a separate reservation in proportion to the population of the State. Even though Central Government and more than one State Government, had realised a duty to obey the Constitutional intention and earmarked separate seats for Scheduled Tribes in educational Institutions it is only in Tamil Nadu, the Scheduled Tribes are allowed to take undue advantage of getting more seats than what they are entitled to, by clubbing SC/ST together for reservation purposes.
6. The relevant Articles he had relied upon are Articles 15(4), 169(4), 46, 330(1)(a) and (b), 330(2), 332, 335, 338, 341, 342 and 366(24) and (25) of the Constitution of India. By referring to these Articles, he submits that, when the Constitution itself had chosen to treat Scheduled Castes and Scheduled Tribes as distinct and different classes of persons by resorting to define them under Article 366(24) and (25), they can never be grouped together as belonging to one class of persons. When the State chooses to extend any Constitutional benefits by invoking any provision of the Constitution; it's distinctive nature which is Constitutionally recognised cannot be undermined by claiming that in extending the benefits, the State would do as it likes, thus effacing the distinction which exists between Scheduled Castes and Scheduled Tribes. In making provision for reservation of seats in Parliament and Legislative Assemblies, based on population reservation having been made treating them as different class, and specify Scheduled Tribes as distinct from Scheduled Castes, here could be not justification in grouping them together, to confer educational benefits under Article 15(4).
7. Learned Advocate-General, by referring to the decision reported in M.R. Balaji v. State of Mysore , submits that Article 15(4) is an enabling provision, and therefore, a mandamus cannot be issued to direct the State to make a reservation for SC/ST and whatever be the specific provision with regard to cannot be read into Article 15(4) of the Constitution. Following this decision, a Division Bench in Abdul Latif v. State held that, what is sought to be achieved under Art 15(4) is like reservation of posts and appointments as contemplated under Article 16(4), and it should be done only within a reasonable limit Article 15(4) only enables the State to make special provisions in the nature of promoting the advancement of the weaker sections of the Society, and therefore has to be read as a provision or an exception to Article 15(1). In this context, he also refers to the decision in Desh Rayaudu v. A.F. Public Service Commission wherein it was held as follows:
It was not incumbent upon the State government to prepare any list of backward classes, nor is it incumbent on it now to prepare any list. Both the Articles enable the State Government to make provision for extending help to socially and educationally backward classes. The State Government therefore cannot be compelled by the issue Mandamus to continue either what it was doing or do something in accordance with the mandate issued.
He therefore submits that, as held by learned Judge, when Article 15(4) is not a mandate; while extending certain benefits or reservation, it is open to the State to prescribe the manner in which it could be achieved, and failure to differentiate between Scheduled Castes and Scheduled Tribes cannot be assailed in the manner done by the appellant.
8. Supreme Court held M.R. Balaji v. State of Mysore in that Article 15(4) of the Constitution is only an enabling provision and does not impose an obligation, and it is in the discretion of the appropriate Government to take suitable action if necessary and provide for reservation for SC/ST, so that they acquire educational advancement. The purpose of this decision is that, it is left the discretion of the State Government, if circumstances warrant to take appropriate steps under this Article, whenever it is considered necessary, It is open to State to provide the benefits under this Article. Only for Scheduled castes or for Scheduled Tribes. It is equally open to the State Government either to concern or deny reservation in educational institutions for certain Backward Classes, if they are comparably better placed than certain other sections of the Society. If it chooses to invoke Article 15(4) then it is bound to treat Scheduled Castes and Scheduled Tribes as distinct from one another for reservation purposes. It is not open to the State of Tamil Nadu to claim that Scheduled Tribes belong to the same category as Scheduled Castes and will have to be treated alike. It is only in implementing the Constitutional provision, it had chosen to extend benefits by reserving 18% seats in educational institutions, for those who would come under Article 15(4) of the constitution. In doing so, it has to treat those two classes of persons only in the manner in which they have been understood by the Constitution. In exercising their discretionary powers under Article 15(4) they have no right to act against the Constitutional "intention of treating them as distinct and separate class of persons. Under Article 366(24), the Constitution had chosen to define "Scheduled Castes" as follows:
Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution.
As far as "Scheduled Tribes" are concerned, it is defined in Article 366(25) as follows:
Scheduled Tribes means such tribes of tribal communities of parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purpose of this Constitution The attempt to distinguish "Scheduled Tribes" from "Scheduled Castes" has been maintained right through in other provisions of the constitution whenever necessity had arisen to deal with their rights, as distinct from the other members of the Society. In part XVI of the Constitution, which deals with "Special provisions relating to certain Classes", in the House of the people seats have been reserved for SC/ST by treating them as distinct and separate classes of Citizens. In doing so, under Article 330(2), the seats so reserved, shall bear a proportion to the total population of the State. Regarding Legislative Assembly of a State, a similar provision is made under Article 332. In relation to services and posts in connection with the affairs of the Union or of a State, under Article 335, their claims shall be taken into consideration consistent with the maintenance of the efficiency of administration, and in doing so, the distinction brought out in the Constitution by treating them as separate and distinct classes had been maintained. Article 341 and 342 deal with separate notifications being made to identify them as Scheduled Castes and Scheduled Tribes, which would further strengthen the proposition, that they can never be treated as one group of persons Article 46 enjoins upon the State to promote with special care "the educational and economic interests of SC/ST. This distinction having been purposefully and pointedly brought about in more than one Article in the Constitution; in extending the coverage or a protection or reservation relating to them under Article 15(4), they could not be treated alike by the State. As earlier stated, it is certainly open to the State either to give protection only to the Scheduled Castes or Scheduled Tribes as if may deem fit but if it chooses to extend the benefit to both of them, it has to treat each class separately, and adopt such standards as are permissible in law to reserve seats in educational institutions separately for Scheduled Castes and Scheduled Tribes.
A Division Bench in Raveendra Raju v. State of Kerala ILR (1978) 2 Ker. 250 : 1978 KLT 754, had observed as follows:
Even under the constitution, Scheduled Castes and Scheduled Tribes have been treated as separate classes and not as a composite group. They are defined separately in Clauses (24 and 25) of Article 366 and the separate provisions made in respect of Scheduled Castes and in respect of Scheduled Tribes in Article 330, 332, 341 and 342, 352., all go to show that the two groups have been dealt with in the constitution as separate and distinct from one another. It cannot be gainsaid that members of he Scheduled Tribes are by any large very much more backward socially, educationally and economically than members of the Scheduled Castes. Any scheme of reservation of posts in favour of such backward classes of citizens cannot but take due note of this gram reality. What the State Government has done under the impinged orders Exts. P-4 and P-5 is to effect a classification between candidates belonging to Scheduled Castes and those belong to Scheduled Tribes after taking into account the greater degree of backwardness from which the latter group suffers and to make provision for a reservation of a small percentage of the posts earmarked for special recruitment in favour of candidates belonging to Scheduled Tribes by stipulating that the second and thereafter every following fifth turn shall be reserved for candidates belonging to the Scheduled Tribes. We do not see any illegality whatever in the provision for such reservation made by Exts.P-4 and P-5. As already pointed out, the members of the Scheduled Tribes being more backward socially, educationally and economically compared to members of the Scheduled Castes there is ample justification for the two groups being classified separately and such a classification has undoubtedly a rational nexus with the object and purpose underlying rule 17A, namely that on securing adequate representation in the services to the backward classes of citizens and more especially members of the Scheduled castes and the Scheduled Tribes. As pointed out by the Supreme Court in State of Kerala v. N.M. Thomas AIR 1976 490, the basic concept of the equality guaranteed by Article 16(1) of the Constitution is equality of opportunity for appointment to any office under the State and it is only by giving preferential treatment for members of backward classes that such equality of opportunity can be really brought about. "Equality of opportunity of inequality." As observed by Ray, C.J. at page 497:
Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment Equality is amongst equals.
If unequals are treated alike that would amount to a violation of the guarantee of equality of opportunity..."
In State of Kerala v. N.M. Thomas AIR 1976 SC 90, it was observed as follows:
Equality means parity of treatment under Parity of conditions...The Constitution makes a classification of Scheduled Castes and Scheduled Tribes in numerous provisions and gives a mandate to the State to accord special or favoured treatment to them. Article 46 contains a Directive Principle of State Policy -- fundamental in the governance of the country enjoining the State to promote with special care educational and economic interests of the Scheduled Castes and Scheduled Tribes and to protect them from any social injustice and exploitation....
9. Learned counsel for the appellant relies upon the following materials to show that this distinction has been taken note of by the Union Government and several State Governments, and the ordain of the Constitution had been correctly understood and acted upon, which the Government of Tamil Nadu had failed to implement. Department of Personnel and Training of the Government of India in it's circular dated 24-5-1985 had revised the roster Statewise by fixing separate quotas for SC/ST, taking into account the population of each State. There are many States wherein the quota for Scheduled Tribes is much more than the reservation made for Scheduled Castes. In Nagaland, Andaman and Nicobar Islands, Lakshwadeep and Mizoram, there is no reservation for Scheduled Castes at all. In the prospectus issued by JIPMER at Pondicherry, for Scheduled Castes and Scheduled Tribes, separate seats have been reserved. For Regional Engineering College, 'Warangal' a similar provision is made. In all Regional Engineering Colleges numbering eleven in the Country, including for Tamil Nadu; separate reservation had been made for SC/ST. The Brochure on Reservation for SC/ST in Service, in more than one place provides for separate quotas being fixed for SC/ST. He therefore respectfully submits that, when this distinction spelt out in the Constitution had been scrupulously followed also for educational purposes; the prescription of the respondents herein the allocation of 18% for admission to Medical Colleges by grouping SC/ST together, is therefore illegal.
10. Further, in exercise of the powers conferred under Article 341(1) of the Constitution, separate Acts had been enacted. For Scheduled Castes, the Scheduled Castes (Amendment) Act, 1976 had been passed and in Part XVI, the Scheduled Castes in Tamil Nadu had been identified. Likewise, the Scheduled Tribes (Amendment) Act, 1976 was passed and in Part XIV, 36 Tribes had been identified in Tamil Nadu. This is yet another factor which clearly shows that in the eye of law, they have been differently treated and, therefore, they could not be treated alike. While passing G.O.Ms. No. 1565 Social Welfare Department dated 30.7.1985, which is produced before Court to show that in respect of educational institutions, 18% seats are to be ear-marked for Scheduled Castes and Scheduled Tribes. This G.O. came to be passed consequent to the decision in Vasanth Kumar and Another v. State Of Karnataka recognising therein the existing 18% reservation for SC/ST, as found in G.O. Ms. No. 73 S.W. dated 1.2.1980. It is claimed that based on these G.O.s., the prospectus for Government Medical Colleges in Tamil Nadu for MBBS/SDS/D Pharm. Courses, 1987-88, came to be issued.
12. As pointed out above, once Article 15(4) is invoked to extend educational benefit SC/ST it is not then open to the State of Tamil Nadu to group than in one category without realising that the Scheduled Tribes are by and large very much backward socially, educationally and economically than members of the Scheduled Castes. Hence, this prescription of grouping them as one category as found in the Prospectus, which in turn came to be issued, based on G.O.M.s.No. 1565, Social Welfare Department, dated 30-7-1985 and G.O.Ms.No. 73, Social Welfare Department dated 1-2-1980, is declared as invalid and illegal.
13. The appellant cannot be granted relief for the Course for which she had applied in the particulars as to how many scheduled Tribes have been secured marks over and above her, etc. Therefore, in this Prospectus to be issued for 1990-91, on separate quota fixed for Scheduled Tribes, it will then be open to her to apply for admission to the Courses. Hence, the only relief that could be granted is to declare that the earmarking of 18% for SC/ST for admission to MBBS course as found in Prospectus is invalid and illegal and it cannot be followed henceforth, when admissions are made in future. To this affect, this writ appeal is allowed with costs. Counsel fee Rs. 1,000.