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21. The aforesaid clarificatory order has its own significance, for it undeniably excludes the applicability of the domicile test stated in Dr. Pradeep Jain (supra) in respect of the State of Andhra Pradesh. At this stage, it would be appropriate to refer to the case of C. Surekha (supra). The said case arose from Osmania University in Andhra Pradesh. The petitioner therein had passed from the said University and he intended to take the All India Entrance Examination for admission to P.G. medical course in 1988. He had challenged the constitutional validity of Article 371-D(2) (b) (iii) and C (ii) of the Constitution as well as the Presidential Order as a consequence of which the students of Andhra Pradesh have been excluded for competing in the aforesaid examination. The two- Judge Bench referred to the decisions in Dr. Pradeep Jain (supra), Reita Nirankari (supra), noted the stand of the Union of India and the Andhra Pradesh in their respective counter affidavits that had asserted that institutions in the State of Andhra Pradesh were kept out of from the purview of the scheme in view of the decision rendered in the case of Dr. Pradeep Jain (supra). The Court also took note of the fact that the issue was kept open in Reita Nirankari (supra), referred to the pronouncements in P. Sambamurthy v. State of Andhra Pradesh[13], Minerva Mills Ltd. v. Union of India[14], P. Sampath Kumar v. Union of India[15] and reiterated the principle that Article 371-D(3) was valid because clause (10) of the Article 371-D provides as follows:-

5. .....“The Presidential Order of 1974 defines “available seats” and “local area” as also “statewide educational institutions” in sub-clauses
(a), (b) and (e) of clause 2. Clause 3 describes the three local areas.

Clause 9 gives overriding effect to the Presidential Order. Under the Presidential Order, admission to the educational institutions is limited only to local and nonlocal candidates. It does not contemplate of admission into educational institutions otherwise. The contention of Mr Choudhary that if the Presidential Order has got to be given effect to in its true spirit, the scheme in Dr Pradeep Jain case cannot, consistently with the Presidential Order, be implemented cannot be brushed aside and bears serious examination on certain important aspects. If the 15 per cent seats are not treated as reserved in terms of the Presidential Order and are intended to go to those who qualify at the All India Entrance Examination it is a statable possibility that the Presidential Order might be diluted. It may be doubtful if, in ascertaining the import of ‘available seats’, it would be permissible to deduct the 15 per cent seats for non-locals applying the formula of Dr Pradeep Jain case. We are inclined to think that the contention advanced by Mr Choudhary on behalf of the respondent-State that within the ambit of the Presidential Order, the scheme adopted by this Court in Dr Pradeep Jain case is eminently arguable and raises certain important issues. It is, however, not necessary to pronounce on this question finally as the petitioner, admittedly, has already been provided admission in one of the Medical Colleges.

“In the case of Dr Jagadish Saran v. Union of India this Court observed that at the highest scales of speciality, the best skill or talent must be hand-picked by selection according to capability. Losing a potential great scientist or technologist would be a national loss. That is why the Court observed that the higher the level of education the lesser should be the reservation. There are similar observations in Dr Pradeep Jain v. Union of India. Undoubtedly, Dr Pradeep Jain v. Union of India did not deal with reservation in favour of the Scheduled Castes and the Scheduled Tribes. It dealt with reservation in favour of residents and students of the same University. Nevertheless it correctly extended the principle laid down in Dr Jagadish Saran v. Union of India to these kinds of reservation also, holding that at the highest levels of medical education excellence cannot be compromised to the detriment of the nation. Admissions to the highest available medical courses in the country at the superspeciality levels, where even the facilities for training are limited, must be given only on the basis of competitive merit. There can be no relaxation at this level.”

31. In Magan Mehrotra (supra) a three-Judge Bench of this Court held that reservation by way of institutional preference be maintained but also directed certain States to follow the pattern of institutional preferences as has been indicated in Dr. Pradeep Jain (supra). Delhi University issued a notification on the basis of the judgment rendered in Magan Mehrotra (supra). The writ petitioners assailed the notification issued by the Delhi University as reservation was made by way of institutional preference for admission to post graduate courses. After the decision was rendered in Magan Mehrotra (supra), a two-Judge Bench referred the matter to a three- Judge Bench which ultimately directed it to be placed before a five-Judge Bench. The reservation of any kind, namely, residence or institutional preference in the constitutional backdrop was the subject matter of assail. The first question posed for consideration was whether the reservation on the basis of a domicile is permissible in terms of Clause 1 of Article 15 of the Constitution of India. The Court referred to the decision in D.P. Joshi v. State of Madhya Bharat[19] and State of U.P. v. Pradip Tandon[20], and answered the issue in the negative. The second issue that the Court addressed was whether reservation by way of institutional preference comes within the suspected classification warranting strict scrutiny test. The Court referred to Ram Krishna Dalmia v. Justice S.R. Tendolkar[21] and various other authorities and opined that no case had been made out for invoking the doctrine of strict construction or intermediate construction. The third issue that the Court dwelled upon was whether the reservation by institutional preference is valid. The Court referred to the authorities in Jagadish Saran (supra), Dr. D.P. Joshi (supra), Chitra Ghosh v. Union of India[22] and various other decisions including that of Dr. Pradeep Jain (supra) and opined that in Dr. Pradeep Jain (supra) a distinction was made between the undergraduate course i.e. MBBS course and post-graduate medical course as also super specialist courses and, therefore, the said authority sought to strike a balance of rights and interests of concerned. The Constitution Bench took note of the fact that the percentage of seats to be allotted on all-India basis, however, came to be modified in Dr. Dinesh Kumar (supra). It also took note of the fact that the directions issued from time to time regulating the admissions in different courses of study in the said case, the deviation of the said dicta by the two-Judge Bench in Dr. Parag Gupta (supra) wherein it created reservation on domicile which was forbidden in Dr. Pradeep Jain (supra). The larger Bench also referred to the authority in AIIMS Students’ Union v AIIMS[23], T.M. Pai Foundation v. State of Karnataka[24] and eventually held as follows:-