Madras High Court
S. Hari Ganesh (Minor) And Anr. vs State Of Tamil Nadu And Anr. on 3 January, 1986
Equivalent citations: AIR1987MAD55, AIR 1987 MADRAS 55
Author: S. Natarajan
Bench: S. Natarajan
JUDGMENT S. Natarajan, J.
1. These two writ petitions have been filed by two brothers, who sought admission in any of the Government Medical Colleges in Tamil Nadu for the M. B. B. S., or B. D. S. Degree Course in the quota of twelve seats reserved for children born of intercaste marriage, under the special categories of candidates enumerated in Annexure I of the prospectus issued by the first respondent. Since neither of them was selected, the two petitioners have filed the respective petitions praying for the issue of a writ of certiorarified mandamus in favour of each for quashing sub-clauses (1) and (2) of Category (iv) of the reservations specified in Annexure I so far as it relates to each of them, and in addition, for the directions being issued to the respondents to admit each one of them in the first year of the M.B.B.S. Degree Course for the academic year 1985-86.
2. Thiru Ramesh, petitioner in W.P. No. 9647 of 1985, is a major while Thiru Hari Ganesh, petitioner in W.P. No. 8390 of 1985 is a minor represented by his father and guardian Thiru P. Shanmugham. It is stated that Thiru Ramesh applied for admission for the M.B.B.S./B.D.S. Course in the year 1983-84. If so, it is not clear how the petitioner is entitled to seek the issue of a writ of certiorarified mandamus relating to the selections that have been made for the academic year 1985-86. Be that as it may, the ground on which the two writ petitions are founded, is of limited dimension.
3. For admission of students to the Government Medical Colleges in Tamil Nadu for the M.B.B.S.,/B.D.S./B. Pharm. Courses, 1985-86, it was announced in the prospectus that selections would be made for a total number of 1072 seats in the various medical colleges, existing as well as proposed, in different parts of the State. Annexture I of the prospectus sets out the number of seats reserved for certain special categories of candidates in the State of Tamil Nadu. Candidates wishing to apply for selection to one of the seats reserved for the special categories have been directed to indicate clearly the particular category under which they seek admission. The categories of reservation are as under :
As we are concerned only with Category (iv) and Cls. (1) and (2), the details of this category alone have been set out and the details of the other categories have not been extracted.
4. The petitioners are children born of intercaste marriage between their father belonging to a Backward community and their mother belonging to a Forward community. As the reservation under Category (iv) has been made for children born of intercaste marriage, the petitioners contend that the preference shown under Cl. (1) for the children born of intercaste marriage between Category of Reservation No. of seats for 1985-86 (i) For Physically handicapped 3 (ii) For Widows 10 (iii) Eminent Sportsmen 3
(iv) Children born of inter-caste marriage in the order of preference mentioned below : 12 (1) For the Children born of inter-caste marriage between SC/ST and Forward Communities (2) For the children born of inter-Caste marriage between SC/ST and Most Backward Class/Backward Class Communities
(v) Defence Quota 6
(vi) Children of Freedom Fighters 3
(vii) Tamil Language Candidate whose parent/parents has/have suffered for the cause of development of Tamil and contributed towards the protection of Tamil 6
(viii) For orphans from orphanages approved and aided by State Government 5 Scheduled Castes/ Scheduled Tribes and Forward Classes and under Cl. (2) for the children born of intercaste marriage between Scheduled Castes/Scheduled Tribes and Most Backward Classes, amounts to preferential treatment of those children and it is violative of Art. 14 of the Constitution. Mr. Shanmugham, who argued the petitions on behalf of both the petitioners, strenuously pleaded that the reservation of twelve seats for children born of inter-caste marriage is permissible under the Constitution, but conferring preference to children born of parents of whom one happened to be a member of the Scheduled Caste/Scheduled Tribe, for selection, is discriminatory in nature and such a differentiation violates Art. 14 of the Constitution. In support of his argument he placed reliance on Kathi Raning v. State of Saurashtra, and State of Bombay v. F. N. Balsara, AIR 1951 SC 318. Mr. Shanmugharn therefore, prayed that Cls. 1 and 2 of Category (iv) of Annexure I in the prospectus should be held unconstitutional and quashed so far as the petitioners are concerned and, in addition, a mandamus should be issued to the respondents to give admission to the two petitioners in the First Year of the M.B.B.S., Degree course for the year 1985-86. Lastly, he pleaded that he will be satisfied if admission is given at least to one of the two petitioners.
5. The respondents have filed a counter affidavit in Writ Petition No. 8390 of 1985, but the learned Advocate General stated that it can be treated as a common counter affidavit in both the writ petitions. Mr. Shanmugham conceded that the defence raised in the counter-affidavit would cover both the petitions.
6. In the counter-affidavit it is stated that the reservation under Category (iv) has been made mainly with a view to encourage intercaste marriages with members of the Scheduled Castes/Scheduled Tribes by members of the Forward Communities or Backward Classes, as the case may be, and as such Cls. 1 and 2 in Category (iv) are perfectly valid in law. It is further stated that since the State Government is running the medical college from out of its funds, the Government has a right to reserve certain seats in the medical colleges for the weaker sections of Society as they need upliftment in greater measure : than other sections of society. Lastly, it is stated that the reservation of twelve seats under Category (iv), in terms of Cls. 1 and 2, is in conformity with Art. 46 of the Constitution, and the directive principle contained therein. The counter further states that the policy of reservation contained in Category (iv) together with Cls. 1 and 2, is not violative of Arts. 14, 15 and 19 in any manner.
7. Having regard to the contentions of the petitioners and the respondents, two questions fall for consideration, viz., whether the State can reserve certain number of seats for special categories of candidates; and secondly, whether the State is entitled to prescribe an order of preference for filling up those seats ?
8. So far as the first question is concerned, it is worthy of note that Art. 46 of the Constitution enjoins the State to promote, with special care, the educational and economic interests of the weaker sections of the people, particularly members belonging to the Scheduled Castes and Scheduled Tribes. The State is therefore under a bounden duty to take appropriate measures for promoting the educational and economic interests of the weaker sections of society, especially the members belonging to the Scheduled Castes and Scheduled Tribes. It therefore follows that even among the weaker sections of people, members belonging to the Scheduled Caste/Scheduled Tribe can legitimately claim priority of consideration. In Chitra Ghosh v. Union, ; it has been laid down, following the ratio in Shri Ram Krishna Daliam v. Shri Justice Tendolkar, , that "while Art. 14 forbids class legislation, it does not forbid reasonable classification." Mr. Shanmugham concedes the position that the State is entitled to make reasonable classification for setting apart a certain number of seats in the medical college for special categories of candidates, but would, however, say that all candidates falling under a designed category, should be treated equally for purposes of selection under that classification and preferential treatment should not be given to any section of the classified category for admission. In other words, Mr. Shanmugham argued that the reservation of seats for children born of intercaste marriage is a reasonable classification, but the directions under Cls. 1 and 2 of Category (iv) for preference being given to children born of inter-caste marriages in which one of the spouses is necessarily a member of the Scheduled Castes or Scheduled Tribes, are discriminatory and will amount to class legislation. It is this portion of the argument which requires consideration.
9. Before examining the legal content in the arguments of Mr. Shanmugham, we may look at the matter from a general perspective. Theoretically speaking, Society is expected to view every marriage as a lawful union between a man and a woman, and creating marital rights and obligations betwixt them besides legal rights of inheritance to them and their off-springs to the spouses themselves their union by matrimony is an endearing fusion of hearts till death parts them asunder. Thus, conceptually all marriages may seem alike and may call for recognition and respect. But the ways, of the world and the hard facts of life call for realistic perspectives. In a country like ours, where the caste-system has taken deep roots for centuries and created unsurmountable social barriers, the very mention of the word 'marriage' brings to the mind of concept of an alliance between a man and a woman of the same caste. The mental picture does not stop with that, but goes further, and conjures visions of an alliance between two families where the economic levels, cultural standards and food habits are parity-oriented. Consequently, even in a marriage between members of the same caste, if disparities are noticed in the levels of wealth, social standing, cultural standards, religious tenets and food habits of the spouses, the marriage arouses suspicion and sarcastic comments. In such a society, if a marriage taken place between a member of the Forward Community of Backward Class, on the one hand, and a member of the Scheduled Caste or Scheduled Tribe, on the other, it is not only starting event, but a revolutionary alliance. The reason for it, it is needless to say, is because of the pernicious caste-system which has dubbed the members of the Scheduled Caste/Scheduled Tribe as untouchables and thrown them into the abysmal depths of' society. It cannot, therefore, be said that all inter-caste marriages are on the same plane and that a marriage between a member of the Forward Community or Backward Class with a member of the Scheduled Caste or Scheduled Tribe is not a greater social break-through than a marriage of a member of the Forward Community with a member of the Backward Class.
10. Coming, now, to the legal aspect of the matter, we have to bear in mind Arts. 17 and 16 of the Constitution. While under Art. 17 untouchability is abolished and its practice in any form is forbidden, under Art. 46 the State is obligated to promote with special care the educational and economic interests of the weaker sections of the people and especially those of the Scheduled Castes and Scheduled Tribes and protect them from social injustice and all forms of exploitation. The State is, therefore, bound legally and morally to give special recognition to marriages of the so-called caste-Hindus with members of the Scheduled Castes and Scheduled Tribes because such marriages remove the imbalances and inequalities in society to a greater degree than marriages between members of the Forward Communities and members of the Backward Class. Any welfare and secular State, committed to the abolition of untouchability and to the ushering in of an egalitarian society, rid of caste and communal barriers, has necessarily to be given greater weightage and preference to a marriage in which a member of a Forward Community or a Backward Class marries a member of a Scheduled Caste or Scheduled Tribe. It therefore follows that though the State has reserved twelve seats under the category of 'Children born of intercaste marriages', it is entitled to give preference to (i) children born of inter-caste marriages between members of Scheduled Castes/Scheduled Tribes and members of Forward Communities, and (ii) children born of inter-caste marriages between members of the Scheduled Castes/Scheduled Tribes and members of Most Backward Class/Backward Class. In fact, the category of reservation is essentially in the nature of 'children born of inter-caste-Hindus and Hindus belonging to the Scheduled Castes/Scheduled Tribes. The status of the children born of such marriages is undoubtedly different from the status given by Society to Children born of inter-caste marriages between members belonging to the Forward Communities and Backward Classes. In such circumstances, there is no scope for arguing that Cls. 1 and 2 of Category (iv) offend Art. 14 of the Constitution.
11. In Air India v. Nergesh Meerza, it was pointed out that where the classes of categories are essentially different, Art. 14 cannot be attracted and that what Art. 14 forbids is hostile discrimination, but not reasonable classification. It was further observed that where persons belonging to a particular class, in view of the special attributes, qualities, mode of recruitment and the like, are differently treated in order to advance and boost members belonging to Backward Class, such classification would not amount to, discrimination forbidden by Art. 14 and it has also been observed that Art. 14 would apply only when equals are treated differently without any reasonable basis. In another case, Murthy Match Works v. Asst. Collector, Excise, it has been pointed out that 'equality of treatment regardless of the inequality of realities, is neither justice nor homage to the Constitutional principle'. In yet another case, Chitra Ghosh v. Union, , the Supreme Court has held that the reservation of seats in the Maulana Azad Medical College for the sons and daughters of (i) residents of Union Territories, other than Delhi, (ii) Central Government Servants posted in Indian Missions abroad, etc., and reservation of seats for Jammu and Kashmir State scholars, were all justifiable, as the reservations had been made with reference to certain handicaps suffered by the concerned students. These pronouncements, therefore, clearly lend authority to our view that the reservation of twelve seats in the medical colleges for children born of inter-caste marriages with preference for children born to spouses of whom one is a member of a Scheduled Caste or a Scheduled Tribe, even though the heading of the category is 'children born on inter-caste marriages', it is perfectly in accordance with law, and does not offend the Constitutional provisions in any manner. Hence, even from the legal point of view, the criticism levelled by the petitioner about the formula prescribed for filling up the 12 reserved seats under category (iv) cannot be sustained.
12. Mr. Shanmugham argued that if preference is to be given to offsprings born of revolutionary inter-caste marriages then primacy should be given to children born of inter-religious marriages and not to the children born of inter-caste marriages with members of the Scheduled Caste/Scheduled Tribe. He argued that a marriage between a Hindu and a Muslim or a Hindu and a Christian, is for more radical in nature, than a marriage between a member of a Forward Community or a Backward Class with a member of the Scheduled Caste or Scheduled Tribe. We are afraid Mr. Shanmugham has missed the purpose underlying the reservation of these twelve seats for children of intercaste marriages in which one of the spouses is a member of the Scheduled Caste or Scheduled Tribe. The preference has been given in order to remove the evil of untouchability and to give social upliftment to the children born of inter-caste marriages with persons belonging to the Scheduled Caste or Scheduled Tribe. Even though Christians and Muslims fall outside the fold of Hindu Community, they do not suffer from the disgrace of untouchability. On the other hand, the members of the Scheduled Castes or Scheduled Tribes have been given less than human status by being treated as untouchables. It is in order to remove this injustice, that priority has been given to children born of inter-caste marriages in which one of the spouses is a member of the Scheduled Caste or Scheduled Tribe for filling up the twelve seats reserved under Category (iv).
13. Mr. Shanmugham lastly pleaded that since some private medical colleges have been opened and since Government has the right to fill up fifty per cent of the seats from candidates selected by it, the Government may be called upon to give admission to at least one of his two sons. While we fully comprehend the anxiety of Mr. Shanmugham as a father to secure admission for at least one of his sons in the Medical College, we find ourselves unable to accede to his request because there is no basis on which we can make a recommendation to Government in the manner sought for by Mr. Shanmugham.
14. In the light of our discussion and the resultant conclusion reached by us, it follows that the writ petitions have to fail. Accordingly, they will stand dismissed. There will however be no order as to costs.
15. Petitions dismissed.