Padmraj Samarendra v. State Of Bihar

SARWAR ALI, J.

(1.) I have advantage of reading in draft the judgment prepared by my learned colleagues. The contentions raised in these cases have been formulated in the judgment of my learned brother S. K. Jha, J. in paragraph 7 of the judgment I concur in the conclusion of my learned brethren Madan Mohan Prasad and S. K. Jha, JJ. with reference to the contentions formulated in paragraph 7 (i) (ii) and (iii). It is only in relation to the arguments advanced in the context of reservation that I would prefer to express my views in my own words. Three of my learned colleagues have also held that the petitions are not maintainable. I have my doubts about the view so expressed, and proceed to deal with the question of reservation on the basis of the petitions being maintainable. In any event, when a decision is based on more than one ground, none of the grounds can be said to be obiter dicta.

(2.) To secure justice, social and economic, and equality of status and opportunity is the promise of the Constitution. This has been sought to be ensured by enacting constitutional provisions giving right to equality on the one hand, and on the other by giving constitutional mandate to the State, in Article 46 of the Constitution a provision though not legally enforceable, nevertheless fundamental in the governance of the country(1) (sic) -- "to promote with special care the education and economic interest of the people and in particular of the Scheduled castes and the Scheduled tribes" and "to protect them from social injustice and all forms of exploita-tion(2) (sic)."

(3.) Article 14 of the Constitution secures equality before the law and equal protection of the laws. Article 15 (1) of the Constitution states mat the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. Article 15 (4), however, states that nothing in Article 15 (1) or Article 29 (2) shall prevent the State from making any special provision for the advancement of socially and educationally backward classes of citizens, or for the Scheduled Castes and the Scheduled Tribes.

(4.) It cannot be gainsaid that when the Constitution came into force, a section of the population was socially and educationally backward. The causes, according to the Backward Class Commission, of backwardness amongst the educationally and socially backward classes were :

1. traditional apathy for education on account of social and environmental conditions or occupational handicaps; 2. poverty and lack of educational institution in rural areas; 3. living in inaccesible areas; 4. lack of adequate educational aids, such as free studentship, scholarship and monetary grants;

(5.) lack of residential hostel facilities;

(6.) unemployment among the educated which acts as a damper on the desire of the members to educate their children; and

(7.) defective educational system which does not train students for appropriate occupations and professions (Extracted from AIR 1963 SC 649 at p. 655). The backwardness, no doubt, is a result of historical causes (T. Devadasan v. Union of India, AIR 1964 SC 179 at p. 185). 5. In order, therefore, to have real equality and not theoretical or formal equality it was, in view of the Constitution, necessary to make special provision for the backward classes, the Scheduled Castes and the Scheduled Tribes. It must, however, be not forgotten that the backwardness, social and educational, is ultimately and primarily due to poverty (M.R. Balaji v. State of Mysore, AIR 1963 SC 649 at pp. 655, 664). The view of the Constitution-maker, clearly, was that if no special provision was made for the classes aforesaid, providing some leverage to the historically oppressed, they would never be able to compete with the more advanced section of the community and such classes would remain unrepresented or marginally represented whether it be in educational institutions or in the services. Thus the interest of society is advanced as a whole by looking after its weaker section (D.N. Chanchala v. State of Mysore, AIR 1971 SC 1762 at p. 1770). I may extract the observation of Khanna, J. in State of Kerala v. N. M. Thomas (AIR 1976 SC 490 at p. 505) which, if I may say so with respect, clearly brings out the rationale for the constitutional provisions in relation to reservation :

".....those sections of the population would not be in a position to compete with advanced sections of the community who had all the advantages of affluence and better education. The fact that the doors of competition were open to them would have been a poor consolation to the members of the backward classes because the chances of their success in the competition were far too remote on account of the inherent handicap and disadvantage from which they suffered. The result would have been that, leaving aside some exceptional cases, the members of backward classes would have hardly got any representation in jobs requiring educational background. It would have thus resulted in virtually repressing those who were already repressed. The framers of the Con-stitution being conscious of the above disadvantage from which backward classes were suffering enjoined upon the State in Article 46 of the Constitution to promote with special care educational and economic interests of the weaker sections of the people, in particular of the Scheduled Castes and Scheduled Tribes, and also protect them from social injustice and all forms of exploitation."

6. The reservation, it is also now firmly established, is permissible only to a limited extent. The maximum permissible limit of reservation was first considered by the Supreme Court some 12 years after the coming into force of the Constitution in M.R. Balaji v. State of Mysore (AIR 1963 SC 649 ). It was held :

".....speaking generally and in a broad way a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case." The true effect of the aforesaid decision was subject-matter of some controversy at the bar. The question posed was whether 50 per cent was the maximum limit of reservation or that Balajis case permitted reservation even beyond 50 per cent. In T. Devadasan v. Union of India (AIR 1964 SC 179 at p. 186) it was observed as follows;

"It has been held by this Court in M. R. Balaji v. State of Mysore (AIR 1963 SC 649 ) that reservation of more than half of the seats in an educational institution for being filled up from members of the backward classes is unconstitutional." It was later observed :

"The ratio of this decision appears to be that the reservation of more than half the vacancy is per se destructive of the provisions of Article 15 (1)." It is thus not open to us to put our own interpretation on the decision in the Balajis case (so far as this aspect is concerned), when the Supreme Court itself has interpreted the decision. Even in N. M. Thomass case (supra) the same interpretation has been accepted. A, N. Ray, C. J. observed in relation to Balajis case :

"It was said that not more than 50 per cent should be reserved for backward classes." It may be noted that the learned Chief Justice interpreted Devadasans case as holding that where 54 seats were reserved out of 100 that would destroy equality. Beg, J. as he then was, observed in relation to Devadasans case and Balajis case :

"It was held that more than 50 per cent reservation for a backward class would violate the requirement of reasonableness inasmuch as it would exclude too large proportion of others."

7. Apart from the interpretation given by the Supreme Court it appears to me that there is good reason for fixing the maximum limit of total reservation at 50 per cent. It has to be noticed that the reservation virtually means that those who are better qualified, and thus deserving, stand excluded in favour of less qualified and thus (in the strict sense) not deserving. To allow the less qualified and less deserving to fill up the majority of seats (or vacancies) would, to borrow the words of A. N. Ray, C. J., "destroy equality"

(8.) Having stated that considering the situation then prevailing and the strides made till the decision of the Supreme Court in Balajis case, 50 per cent was held to be the maximum permissible limit of reservation, it has to be clearly understood and appreciated that the legally permissible limit of reservation will vary from time to time depending on the circumstances prevailing at a particular point of time. How much less than 50 per cent would depend upon the "relevant prevailing circumstances". The nature and type of education or services may also be a relevant factor. It was observed in Devadasans case (supra): "what the percentage ought to be must depend upon the circumstances obtaining from time to time (at p. 188)"". In General Manager, Southern Rly. v. Ranga-chari (AIR 1962 SC 36 ) it was observed in relation to Article 16 (4) of the Constitution that it was intended merely to give adequate representation to backward communities. "It cannot be used for creating monopolies or for unduly and illegitimately disturbing the legitimate interest of other employees." (at p. 45). Similarly in State of Andhra Pradesh v. U. S. V. Balaram (AIR 1972 SC 1375 ) it was held that the reservation has to be adopted to advance the interest of weaker sections of the society but in doing so it is necessary to see that the deserving and qualified candidates are not excluded from admission to higher educational institution. It was also observed in that case (at p. 1400)

"If a situation arises wherein the candidates belonging to the groups included in the list of Backward Classes, are able to obtain more seals on the basis of their own merit, we can only state that it is the duty of the Government to review the question of further reservation of seats for such groups. This has to be emphasised because the Government .should not act on the basis that once a class is considered as a backward class it should continue to be backward for all times. If once a class appears to have reached a stage of progress, from which it could be safely inferred that no further protection is necessary, the State will do well to review such instances and suitably revise the list of Backward classes."

The same .aspect was emphasised in A. Periakaruppan Chettiar v. State of Tamil Nadu (AIR 1971 SC 2303 at p. 2311) in these words :

"But all the same the Government should not proceed on the basis that once a class is considered as a backward class it should continue to be backward class for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as take off stage then competition is necessary for their future progress. The Government should always keep under review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should not be allowed to become a vested interest."

Thus, reservation is not an end but a meant -- a means to secure social and economic justice. The real solution, however, Ties in eliminating the causes that have led to the social, educational and economic backwardness of the weaker section of the community. But till such time as that is not achieved reservation is a measure "compensatory in character" meant to "mitigate surmountable obstacles to ensure equality of opportunity (AIR 1976 SC 490 , 514 (per Mathew, J.))"

(9.) It would, however, be useful to remind what Krishna Iyer, J. said in Thomass case

"In the light of experience, here and elsewhere, the danger of reservation, it seems to me, is threefold. Its benefits, by and large, are snatched away by the top creamy layer of the backward caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake, Secondly, this claim is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment, but wish to wear the weaker section label as a means to score over their near equals formally categorised as the upper brackets. Lastly, a lasting solution to the problem comes only from improvement of social environment, added educational facilities and cross-fertilisation of castes by inter-caste and inter-class marriages sponsored as a massive State programme, and this solution is calcu-latedly hidden from view by the higher backward groups with a vested interest in the plums of backwardism. But social science research, not judicial impressionism, will alone tell the whole truth and a constant process of objective re-evaluation of progress registered by the under-dog categories is essential lest a once deserving reservation should be administrative strategy to help the really untouched, most backward classes also emerge from such socio-legal studies and audit exercises, if dispassionately made. In fact, research conducted by the A. N. Sinha Institute of Social Studies. Patna, has revealed a dual society among harijans, a tiny elite gobbling up the benefits and the darker layers sleeping distance away from the special concessions."

(10.) It is also to be remembered that the main and the real cause for backwardness is economic backwardness or poverty. In this vast country it is not confined to those who are covered by Article 15 (4) of the Constitution. In a country where only a small percentage of the population is above the poverty line, to deny opportunities of higher education (which secures employment), and employment, is to deny to those who are qualified and deserving what is or at least should be their due. When the 42nd Constitutional Amendment was on the anvil there was suggestion of inclusion of "right to work"--which carries with it the natural corollary of assured employment--as a fundamental right. This, understandably, could not be done in a political system which is based on mixed economy. The natural effect of reservation is to close the door of betterment or even employment to even a portion of economically weak section of community. This all the more emphasises the urgent necessity of eliminating or at least substantially reducing the causes which have contributed to the creation of socially and educationally backward section of the community. Thus, creating a situation when the need of reservation would be no more. Then alone the promise of equality for all would become a reality. And it is to be remembered that right of equality is the "cornerstone of the Constitution" (N. M. Thomass case (supra) at p. 509). (Per Khanna, J.) Chandrachud, J. (as he then was) says: "it is a right which more than any other is a basic postulate of our Constitution (Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 , at p. 2469). Mathew, J. describes it as the "most fundamental postulate of republicanism" (AIR 1975 SC 2299 at p. 2385).

(11.) In this context it would further be useful again to extract observation of Iyer, J., who concurring with A. N. Ray, C. J. observed :

".....no caste, however, seemingly backward, or claiming to be derelict, can be allowed to breach the dykes of equality of opportunity guaranteed to all citizens. To them the answer is that, save in rare cases of "chill penury repressing their noble rage", equality is equality--nothing less and nothing else. The heady upperberth occupants from backward classes do double injury. They beguile the broad community into believing that backwardness is being banished. They rob the needbased bulk of the backward of the office advantages, the nation by classification reserves or proffers. The constitutional dharma, however, ia not an unending edification of backwardness and showering classified homage, regardless of advancement registered, but progressive exercising of the social evil and gradual withdrawal of artificial crutches. Here, the Court has to be objective, resisting mawkish politics" Also the note of caution sounded in State of Jammu and Kashmir v. T. N. Khosa (AIR 1974 SC 1 ) :

".....let us not 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 not be left to ask in wonderment what after all is the operational residue of equality and equal opportunity "

(12.) It was contended ort behalf of the petitioners that the reservation made in favour of the backward castes by the State of Bihar is constitutionally invalid. In other words those castes which have been described as backward do not fulfil the constitutional requirement. Since no foundation bad been laid for this attack in the petition itself, it is not possible to entertain this argument in this case. Indeed, as pointed out by learned brother B. P. Sinha, J. the records of this case do not indicate what class or castes have been denominated as backward. I, thus, do not express any opinion on the question whether the castes designated as backward by the State of Bihar do fulfil the constitutional requirement. As to who constitute backward classes has been fully explained in several decisions of the Supreme Court. In Balajis case (supra) it has been said (at p. 6581 --"backward classes for whose improvement special provision is contemplated by Article 15 (4) are in matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes." In Janki Pd. v. State of lammu and Kashmir (AIR 1973 SC 930 ), it was emphasised that the backwardness being "social and educational must be similar to the backwardness from which the Scheduled Castes and Scheduled Tribes suffer". It was pointed out that these principles have been enunciated in Balajis case and Chitralekha v. State of Mysore (1964-6 SCR 368 : AIR 1964 SC 1823 ). Similarly in Thomass case it was emphasised that the backwardness must be "of the type harijans endure". "Not all castes backwardness is recognised., social disparity must be so grim and substantial as to serve as a foundation for benign discrimination" (Thomass case (supra) at page 537 (Iyer, J.) (AIR 1976 SC 490 -537)). I am explaining the criteria as laid down in the Supreme Court decisions to clarify the true concept of backwardness.

(13.) It was contended that in the instant cases the Government has made reservation of 10 per cent in favour of members of backward classes having an annual income of Rs. 3000/-. Thus there is division of backward classes between more backward and less backward. This was not, it is said, permissible. I do not think I can accept this contention. It has already been noticed that the consistent view of the Supreme Court is that basically and essentially even social and ducational backwardness is a result of economic backwardness. In such a situation to make reservation for those who are economically backward is to give representation to those who could not, because of their economic backwardness, compete with those of their own class who have no such disadvantage. To equate the economically weak and the economically strong amongst the members of the same class would to quote again the language of Iyer, J. mean heaping the benefit on "top creamy layer of the backward caste or class". "If there are intelligible differentia", says Mathew, J. :

"which separate a group within that class from the rest and that differentia have nexus with the object of the classification. I see no objection to a further classification within a class."

Here also, in my view, there are not only intelligible differentia but good reason for what has been suggested as a further classification within the class, the nexus being the securing of educational opportunities to those who are really weak and require protection to give them their legitimate due. "Equality of opportunity admits discrimination with reason. Discrimination with reason means rational classification for differential treatment having nexus to the constitutionally permissible object." Differential treatment to economically weak among the classes, who on acceptable standards are backward is, in any event, a rational classification.

(14.) Before concluding on the topic of reservation I must point out that the various dicta, observation or the legal position highlighted are all based on the pronouncement of the Supreme Court. I have only attempted to collate and synthesise them in so far as it is relevant for our present purposes. Indeed I have attempted to use the very language of the decisions of the Supreme Court.

(15.) I agree with my learned brethren Madan Mohan Prasad and S. K. Jha, JJ. that allotment of 125 seats for girl students is not a reservation in the strict sense of the term. It is an allotment of the source from which the seats have to be filled. So is the position in respect of 43 seats described as "cultural seats". My learned brethren have dealt with this matter at length. I need only say that such questions are justiciable and the State cannot in the garb of prescribing source effect reservation. The result, therefore, is that only 502 seats are available for being filled in by the general quota. It is out of these that reservations have to take place. The Government notification fixes 14% of seats for Scheduled castes, 9% for Scheduled tribes and 10% for backward classes. Thus the number of seats 0available for the three categories is 70, 45 and 50 respectively. Since the number of selected Scheduled castes and Scheduled tribes candidates are only 45 and 41 respectively, the quota fixed has not been exceeded. The position, however, is different so far as "backward class" candidates are concerned. The State case is that 63 seats have to be reserved for backward classes, being 10% of 627 seats. Since I am of the view that 10% of available seats, after deductions as noted above, is only 50, the admission of backward class candidates has to be confined to that number. 34 backward class candidates having already been included in the general list, it is apparent on the State case itself, that only 16 more seats can now be filled in by backward class candidates. This naturally follows as the reservation is on percentage basis. 10% seats having been reserved for backward classes. The remaining seats have to be filled in by candidates qualifying in the general competition. I may further clarify that had I been of the view that 125 seats allotted to girl students was a reservation and not allotment or specification of source for recruitment, I would have no alternative but to hold the reservation to be constitutionally impermissible. I say so because in that case the total reservation would have been 53%, and that for reasons discussed in paragraph 6 and 7 of my judgment would be unconstitutional. In the view that I have taken the total factual reservation (including those for Scheduled castes and the Scheduled tribes) comes to about 26% which, on the materials on the record, cannot be said to be constitutionally impermissible.

(16.) Lest there be some ambiguity in what I have said I would like to clarify and reiterate mat I am not expressing any opinion in this judgment, whether the list that has been drawn up by the state of backward classes satisfies the constitutional requirement. When an occasion does arise this Court may have to determine :

(a) Whether the list drawn up by the State is on the basis of caste only; (b) Whether all or some of the enumerated castes or classes come within the meaning of "backward class" as contemplated in Article 15 of the Constitution.

It may also have to be determined with reference to the circumstances now prevailing in this State as to what percentage of reservation would be constitutionally permissible. And whether a uniform formula would be constitutionally valid, or the percentage may vary in different faculties of education, or different categories of service. This is only to indicate some of the problems that may have to be tackled at a later date.

(17.) There are two other observations which I would like to make. It was contended that there has been manipulation in the result of the competitive examination which was held for admission into medical colleges. The petitioners have not been able to establish factual manipulations, which aspect has been fully dealt with by my learned brother S. K. Jha, J. The perusal of the affidavits, however, does leave an impression that the system as at present adopted requires improvement.

(18.) It has been stated in the affidavits that it is not the. answer books which are evaluated by the computer. On the other hand the clerks prepare the sheets that have to be fed into the computers. After the evaluation by the computer the marks are noted again by the clerks. This system does appear to me as to require improvement. There is scope for genuine mistakes in preparing the sheets for the computer. There is also scope for manipulation. If the confidence of the examinees and the general public is to be had a system will have to be evolved which eliminates the chances of mistakes and manipulations. One such method may be to permit re-examination of answer books, on payment of a fee fixed in that regard, by a Special Board constituted for the purpose. It is to be remembered that admission into faculties like medicine or engineering virtually ensures the future prospects of the admitted students. The medical education is one of the most sought after higher education. The evolution of a procedure free from suspicion of bungling or manipulation is certainly something to be aimed at. The authorities will do well to give a thought to this matter.

(19.) There is one other aspect on which I would like to reserve my opinion, as the question was not specifically raised or agitated in the course of argument. I find that whereas according to Annexure 1, 96 is the lowest mark for eligibility of admission so far as general candidates are concerned, the merit lists of Scheduled castes and Scheduled tribes candidates include admission of those who have obtained as low mark as 54. Whether there should be a reasonable difference between marks of candidates in the general list and those who have reservation in the matter of admission is a matter on which I do not express any opinion. Prima facie, it does appear to me that too wide a difference or margin between the two may not be legally or constitutionally permissible.

(20.) Before finally concluding I must express the appreciation of my learned brethren and my own for the assistance rendered by Government Pleader IV. He put forth the State case with ability, eloquence and fairness. He tried to meet with measured confidence the questions raised at the bar and the queries made by bench in the course of hearing of these cases.

(21.) In the result, these applications have to be dismissed as the majority is of the view that the writ petitions are not maintainable on the ground that necessary parties have not been impleaded. S.K. Jha, J.

(22.) In all these three applications under Articles 226 and 227 of the Constitution of India are involved, more or less, identical facts and common questions of law. Hence they were heard together and this common judgment

(23.) There is one petitioner in each of C. W. J. C. 1753 and C. W. J. C. 2063 and five in C. W. J. C. 1812. From the labyrinth of affidavits, counter-affidavits and rejoinders thereto, the following common set of facts emerge. The petitioners have passed the intermediate examination in science with qualifying marks for admission into the pre-medical course of the Patna University and other universities in the State of Bihar teaching medicine in the various medical colleges owned, managed and administered by the State of Bihar. Only such students as have passed the intermediate examination in science or its equivalent examination are eligible for admission into the medical course. Such admission to the medical colleges in Bihar is taken on the basis of the result of a pre-medical test held for the purpose by the State Government in the Department of Health. The State Government took over a number of medical colleges run by private individuals or enterprises in the State. Such medical colleges were the Mahatma Gandhi Memorial (Medical) College, Jamshedpur, Patliputra Medical College, Dhanbad, Magadh Medical College, Gaya, Nalanda Medical College, Patna and Shri Krishna Medical College, Muzaffar-pur. The total number of students admitted into the first year class of pre-existing medical colleges, namely, the medical colleges at Patna, Ranchi, Darbhanga and Bhagalpur, owned, managed and controlled by the State Government, was 500 and the total number of students previously admitted into the first year class of the private colleges aforementioned was approximately 475. This included seats reserved for students who were admitted for studies into the various universities of Bihar and into medical colleges affiliated to those universities. They also included students from different Asian countries (which was termed as cultural reservation), where proper facilities for medical education were not provided. These seats also included those reserved for scheduled castes, scheduled tribes and other educationally and socially backward classes as also girl students. The State Government arranged to hold a pre-medical test for the year 1977 for admission into all those colleges which were previously owned and controlled by the State Government as also the private colleges mentioned above, which were taken over, controlled and managed by the State Government. The total number of candidates proposed to be selected for the purpose of admission into those colleges has now been reduced to 670. The pre-medical test was originally scheduled to be held on the 3rd July, 1977. This examination was cancelled a few days before the date fixed for the examination. The petitioners have alleged in the writ petitions that they came to learn later that certain packets of question papers in transit to Ranchi were suspected to have been tampered with in course of carriage in the railway. A fresh examination was accordingly ordered to be held on the 7th August, 1977 and the same was duly held. The petitioners allege that it has been very strongly and widely rumoured that the questions had been leaked out and some of the medical coaching institutions took advantage of the same in preparing students for the set of questions handed down in the examination held in August. 1977. This allegation has further been amplified in the first supplementary affidavit filed on behalf of the petitioners wherein it has been further alleged that at the time of filing of the original writ application the petitioner of C. W. J. C. 1753 could not get a copy of any such has been further alleged in the same supplementary affidavit that the system of examination for the purpose of pre-medical test is that the question paper is given to the candidates in the examination hall and they have to write answers against each question on the question paper itself and submit the same in the examination hall, no question can be taken out of the hall and each question has to be sub-mitted with answer on it. It has further been alleged in the writ petition that the system of obtaining results of the examination is mechanised and the human element has not properly been excluded. For instance, it has been stated, code numbers are put on the answer books in place of roll numbers which are subsequently transferred to punch cards and are decoded after the computer has indicated the numbers by human hands. This has given rise to ample suspicion in the mind of the people that the rumour regarding leakage is not without foundation. As a result of the test so held on the 7th August, 1977 the names of the candidates categorywise provisionally selected for interview for admission into medical colleges have been drawn up on the basis of the same and published in the local newspapers on Saturday, 24th September, 1977 and Sunday, 25th September, 1977. A copy of the result so published in the newspapers has been marked annexure 1. According to the petitioners case, it would appear from the list (annexure 1) that the candidates have been divided into several categories, namely --

(i) General/backward classes (income below Rs. 3,000 per annum, indicating thereby that the backward classes would cover those persons whose income is below Rs. 3,000 per annum only). No other criterion has been laid down for determining the backwardness. (ii) Waiting list, which probably indicates. a list of persons who may be kept waiting after interview in the event of the seats not being filled at the said interview. (iii) Merit list of girl candidates. (iv) Waiting list of girl candidate. (v) Merit list of scheduled castes. (vi) Merit list of scheduled tribes. The total number of persons selected for the purpose of interview is 525. This, according to the petitioners, included 113 girl students, 45 scheduled castes and 41 scheduled tribes students and 34 from out of backward classes. 27 were placed on the waiting list. It was not notified as to how many seats would be reserved for different categories mentioned above. But the petitioners alleged that they have gathered that in addition to these, 43 seats were also reserved in the name of cultural seats, which included not only students of other Asian countries but also nominees of the Tata Industries and the Coal Mines Welfare Organisation, who have not appeared at the test. Thus, according to the petitioners, out of 670 seats, 375 seats are reserved and 295 seats are open to the general competitive examination. The percentage thus comes to 56 per cent for the reserved seats and 44 for the general seats. The further case of the petitioners is that, as already indicated above the minimum qualification for admission into the medical colleges is the passing of the intermediate examination in science or its equivalent as prescribed by the universities of Bihar. The results of the intermediate examination in science of the various universities in Bihar, except Patna and Ranchi, had not been published at the time of filing of the writ application. In some of them examinations had not been held or completed before the pre-medical test was held. The grievance of the petitioners is that such candidates as had clearly not passed the I. Sc. examination were selected and included in the select list (an-nexure 1). Some of the candidates, it is further alleged who have been selected, have definitely failed in one subject or more in the intermediate examination in science held by the Patna University. Notwithstanding the same, their roll number appeared in the pre-medical test as published in annexure 1. Their selection, it is alleged, was contrary to the eligibility for sitting at the pre-medical test and that, therefore, their selection wax invalid and contrary to the regulation of the universities as also the prospectus which has been issued for the purpose laying down the qualifications for candidates desirous for sitting at the pre-medical test. The Indian Medical Council, it is said, has, by regulation, provided that even in the matter of scheduled castes and scheduled tribes the concession could be only by lowering the marks at the pre-medical test from 50 per cent for such admission but not less than 45 per cent. In order to take more students from those reserved and privileged classes of students, it it said, the minimum marks for them have been sought to be reduced below the percentage of marks prescribed for them by Indian Medical Council. On these facts, it was submitted in the writ petitions as originally filed that all the various steps leading to the publication of t selection proposed to be made on the basis thereof were illegal, ultra vires as being in contravention of Articles 14 and 15 of the Constitution of India; the reservation for candidates to be nominated by the Tata Industries and the Coal Mines Welfare Organisation, is not warranted by the law or the Constitution. The reduction in the number of seats in the medical colleges tends to reduce the number of qualified medical men who may render health service to the people of the State and is accordingly in contravention of the directory policy as contained in Chap. IV of the Constitution. On these facts and submissions, a prayer had originally been made for issuance of an appropriate writ quashing annexure 1, the list published in the newspapers.

(24.) In the second supplementary affidavit filed on behalf of the petitioner in C. W. J. C. 1753 it has further been stated that after filing of the writ application the petitioner found that the interview board at the interview held on the 28th and the 29th Sep., 1977 had been issuing immediately after the interview admit cards to the candidates for admission to the medical colleges on the 7th Oct., 1977. A prayer was also made for an interim order pending the writ application fop restraining the respondents, namely, the State of Bihar through the Secretary, Health Department, and Dr. Manik Singh, Convenor, Pre-medical and Dental Test, 1977, who also happens to be the Principal of Patna Medical College, from giving effect to the !ist as published in Annx. 1. At the time when the rule was issued in these cases, the prayer for interim relief was rejected.

(25.) A counter-affidavit has been filed on behalf of the respondents wherein the following facts have been asserted. True position with regard to the number of seats available for admission and reservation is as follows :--

"Total number of seats available for admission in the nine medical colleges in the State are 627 in the following manner : Patna Medical College 116 Darbhanga Medical College 101 Ranchi Medical College 101 Bhagalpur Medical College 48 Mahatma Gandhi Medical College, Jamshedpur 70 Patliputra Medical College 41 Srikrishna Medical College 50 Magadh Medical College 50 Nalanda Medical College 50."

Out of these 627 seats, 88 seats are reserved for scheduled castes and 56 for scheduled tribes, but in case candidates from scheduled castes and scheduled tribes are not available in the required number, the rest of the seats which remain vacant due to the non-availability of scheduled caste and scheduled tribe candidates are made available to the general pool of candidates. 63 seats are reserved for backward classes. The criterion for filling of the seats against these 63 seats is that the candidates belonging to the backward classes, whose parents income is less than Rs. 3,000 per annum, are candidates of backward classes for admission into medical colleges. The State Government, while determining the backward classes, take into consideration the castes socially and educationally backward and declare those as socially, educationally and economically backward as forming the backward classes and further, for admission, economic condition of backward classes was also taken into consideration. While determining the backward classes, the State Government had taken into consideration the social and educational backwardness as also their economic backwardness. The 63 seats reserved for backward classes are not filled up by backward classes on the basis of reservation alone and if the students belonging to backward classes compete in examination on their own merit with the general candidates, the number of seats under reservation is deducted by the number competing on merit. The experience of the past had shown that 5 to 7 per cent seats are filled up by the students belonging to backward classes getting admission on the basis of general merit list So far as the admission in the calendar session is concerned, 34 students belonging to backward classes, whose results have been published in Annexure 1, have competed on their own merit and only 29 seats have to be filled up on the basis of the reservation for backward classes. Out of the 88 seats reserved for scheduled castes only 45 seats are available for admission belonging to the scheduled castes. In like manner, although 56 seats are available for scheduled tribes, only 41 seats are available for admission belonging to that category. So far as the girl candidates are concerned, it has been asserted that the Government required a large number of lady doctors for posting in the Government hospitals and dispensaries and such lady doctors form 1/5th of the cadre strength of the doctors. Therefore, keeping in view the job requirements, one-fifth of the total number of seats, i. e., 125 seats for the different medical colleges are to be filled up by girl students belonging to all classes. In nutshell, the stand of the respondents in the first counter-affidavit is that for the purposes of admission only 45 seats out of 627 are to be filled up by scheduled castes, 41 by scheduled tribes and 29 by backward classes. With regard to the 43 seats, which are said to be cultural seats, the true position is that 6 seats are available for Nepalese students, 23 seats are to be filled up by nomination by the Government of India for students belonging to foreign countries as well as Nagaland, Sikkim and Bhutan. The candidates to fill up those seats are left to be nominated by the Government of India for State reasons. With regard to the candidates to be nominated by the three institutions, namely, Shri Lakshmi Narayan Trust Committee, the Coal Mines Welfare Organisation and the Tata Iron and Steel Company, it has been asserted that when Patliputra Medical College, Dhanbad and Mahatma Gandhi Medical Colleges, Jamshedpur, were taken over by the State Government, it was found that these colleges are not having hospital facilities and in order to provide medical teaching provision of a hospital is a necessity. As Shri Lakshmi Narayan Trust and the Coal Mines Welfare Organisation are maintaining two hospitals at Dhanbad where Patliputra Medical College is situate, these two institutions offered their hospitals for the purpose of teaching the students of Patliputra Medical College on the condition that some nominees of each of the said two institutions be allowed to be admitted to the said medical college. Similarly, the Tata Iron and Steel Company has been given 5 seats in the Mahatma Gandhi Medical College to be filled up by nomination by that company for extending the facility of the Tisco hospital for teaching the students. Although in paragraph 3 of the counter-affidavit it has been stated that the total number of seats to be filled up by nomination by the three institutions aforesaid is 9 only, in course of argument it was stated at the Bar by the learned Government Pleader IV that five seats in Mahatma Gandhi Medical College are to be filled up by the nomination by the Tisco and five seats in Patliputra Medical College by the L. N. Trust and 4 seats of the latter college by Coal Mines Welfare Organisation. These nominations were necessary in the interest of all the students getting admission in those two colleges. Such nominations are not to be made on the basis of any class or caste. It has further been stated in the counter-affidavit that the students who will not be in a position to produce their mark sheets of I. Sc. examination of 1977 (annual) will not be admitted in the medical colleges nor any such students who have not passed the I. Sc. examination at all. The Government had not taken any decision to reduce the qualifying marks of 45 per cent for the scheduled caste or scheduled tribe students and allegations to the contrary in the writ petitions or the supplementary affidavits were incorrect

(26.) In the petitioners" rejoinder to the counter-affidavit of the respondents in paragraph 8, it has merely been stated that the percentage of reservation being more than 50 per cent was illegal and in paragraph 10 thereof it has been submitted that the reasons for reservations had no nexus with the teaching in the medical colleges and, as such, the reservations were violative of Articles 14 and 15 of the Constitution. This counter-affidavit has been filed even prior to the admission of these 3 writ cases. Subsequent to the issuance of rule, however, a show cause petition was filed by the respondents wherein the facts stated in the earlier counter-affidavit were reaffirmed. In the petitioners rejoinder to the respondents show cause petition, a copy of the prospectus for the session 1977-78 containing the instructions for admission of students to the first year M. B. B. S. course of different medical and dental colleges in Bihar has been annexed and marked Annexure 2. Subsequently, however, a supplementary show cause petition was also filed - on behalf of the respondents in which it has been submitted that the petitioners had no right to challenge the selection of the candidates for admission as they had themselves participated in the examination held for the purpose in which they had not competed. Having taken part in the examination, they could not turn round and challenge the validity thereof. It has further been stated that even if it be assumed that 670 seats were available for admission in the medical colleges in the State, the petitioners could not be admitted as they had not secured sufficient marks in order of merit to be selected for admission. The total mark for test was 120 and the marks secured by different petitioners have been stated in paragraph 2 of the supplementary show c admitted if all the seats were to be filled up on the basis of merit alone without any reservation of any sort. The petitioners, therefore, having failed to secure the minimum possible marks for selection ought not to be heard to challenge the validity of the test for selection of candidates for admission into medical and dental course. The roll numbers of only 3 of the petitioners have been supplied to the respondents till the time the supplementary show cause petition was filed. With regard to them it has been stated that the original mark sheet of marks obtained by the petitioners would be kept available in course of argument Petitioner No. 1 of C. W. J. C. 1812, it has been stated, has secured only 76 marks out of 120, petitioner Sandeep Sen had secured only 78 marks whereas petitioner Jagdish Singh secured only 82 marks, and in between 91 marks and 82 marks there were at least 850 candidates above petitioner Jagdish Singh. Similarly, at least 1,330 candidates were above petitioner San-deep Sen and nearly 1,640 candidates above petitioner Anil Kumar. Thus, there were only three students whose roll numbers had been given by the petitioners. Subsequently, a petition for calling for certain documents from Patna University as also from respondent No. 2 was filed. Mr. Ramananda Sinha, learned Counsel for the University, and the learned Government Pleader IV appearing for the respondents had placed before us all the relevant papers which the petitioners learned Counsel also had occasion to see in course of the arguments.

(27.) It seems till this time the petitioners were merely groping in the dark in taking any definite stand on account of which any constitutional point could be said to be involved in these cases. Ultimately, when a supplementary counter-affidavit was filed on behalf of respondents 1 and 2, it was stated in paragraph 5 thereof that the seats which had been allocated or reserved for the girl candidates were by orders of the Government dated 29-1-1975, a true copy of which was marked Annexure A to the supplementary counter-affidavit. Annexure A is an order dated 29-1-1975 issued by the State Government in the Department of Health to the Principals of various medical colleges wherein it has been stated that for admission into the different Government medical colleges of the State 14 per cent of the seats for admission be reserved for scheduled castes, 9 per cent for scheduled tribes, 10 per cent for backward classes 20 per cent for girls and 47 per cent for the general candidates. Apart from them, it was also directed that the seats reserved for nomination by the Government of India or by other States shall remain as they were before the issuance of Annexure A. It was only after the filing of this supplementary counter-affidavit on behalf of the respondents that a point was raised at the Bar by Mr. B. C. Ghose, learned counsel for the petitioners in C. W. J. C. 1973 and C. W. J. C 1812 that directions of the State Government were ultra vires the provisions of Articles 14 and 15 of the Constitution. When the cases were being heard before a Division Bench, Mr. Ghose, learned Counsel for the petitioners, submitted that the directions of the State Government as contained in Annexure A being violative of Articles 14 and 15 the constitutionality or otherwise of Annexure A should be tested and the cases could accordingly be heard by a 5-Judge Special Bench in view of the provisions of Article 228-A (4). Hence, these cases were placed before us.

(28.) On these pleadings, allegations and counter assertions Mr. B. C. Ghose submitted the following points in support of these applications; Mr. S. C. Ghose, learned Counsel for the petitioner in C. W. J. C. 2063 of 1977, adopted Mr. B. C. Ghoses arguments. The points raised are noted below in the same sequence in which they were argued by Mr. B. C. Ghose--

(i) The minimum qualification for any candidate to sit at the pre-medical test being that he must have passed his intermediate science examination with 50 per cent marks, candidates, who have not passed by the 23rd of July, 1977, were not eligible to sit at the test. (ii) The leakage of the questions in the test to be held on the 7th of August, 1977 rendered the whole test void. (iii) The reduction in the overall number of seats in all the medical colleges of the State of Bihar taken together was without any reasonable basjs and, therefore, in contravention of the directive principles of State Policy as enshrined in Part IV of the Constitution and, as such, the State Government be directed not to reduce the number of seats at all. (iv) The reservations giving weightage to certain classes of people, as indicated in An-nexure A to the supplementary counter-affidavit, were in contravention of the provisions of Articles 14 and 15 of the Constitution. I shall deal with each of these points seriatim.

(29.) Apropos the first point, it was submitted that the prospectus for the session 1977-78 (Annexure 2) lays down in paragraph B the eligibility for competitive test which reads thus--

"B. Eligibility for competitive test :-- (1) Candidates who have passed I. Sc. or equivalent examination from any of the Universities of Bihar or from any other University recognised by Patna/Ranchi/Bihar/ Bhagal-pur/L. N. Mithila University with English, Modern Indian Language; Physics, Chemistry and Biology (Botany and Zoology). Candidates from Universities/Boards where Modern Indian Language is not a compulsory subject are also eligible or Candidates who have passed the B. Sc. examination with one or more of the subjects mentioned above provided they have passed the remaining subjects of the medical group (Physics, Chemistry and Biology) in the I. Sc. Note :-- Such candidates may also apply who may have appeared but results not yet published or may be appearing at the ensuing I. Sc./B. Sc. or equivalent examination before the last date of filing application but they should produce the mark sheet latest by 23rd July, 1977".

It was argued on the basis of the note to paragraph B extracted above that the production of the mark sheet latest by the 23rd July, 1977 was a must and that, therefore, candidates who had not produced their mark sheet by that date ought to have been held not eligible to sit at the competitive test. This submission was further sought to be re-enforced by pressing upon our attention paragraph J of Annexure 2 in which it is, intes alia, stipulated--

"J. Issue of Admit-card :-- (i) ..... (ii) Such candidates who had not submitted the I. Sc./equivalent examination mark sheet along with the application form due to the non-publication of the result till the last date of the application will also receive admit card from the Medical/Dental College where they have applied but they should produce the mark sheet latest by the 23rd July, 1977. (iii) ....."

The argument is fallacious. It will appeaff from paragraph G of the prospectus (Annexure 2) that the date of examination was fixed as the 3rd July, 1977 which, on the admitted case of the parties, was actually held subsequently on the 7th August, 1977, and in paragraph H it has been stipulated that--

"H. Application-form and form for admission to the test (admit-card) :-- Application of candidate seeking admission to the competitive test must reach the office of the Principal concerned on or before 3rd June, 1977 as per instructions given here-under :-- 1. (1) ..... Following documents are required to be enclosed with the application-form :-- (a) Attested copy of marksheet of I, Sc. or equivalent examinations. In case a candidate has passed his/her examination part by part all mark sheets (attested copies) are required to be enclosed. Mark sheets are not returnable."

It will be seen from the aforesaid provisions that the interpretation put on note to paragraph B (1) of the prospectus is not the correct interpretation. In my view, the eligibility for competitive test has been laid down as the point of time when a candidate is to sit at the test. The initial stage when a candidate is qualified to sit at the test cannot have any reference to the production of mark sheet which is not in the dominion of the candidate himself/herself. The production of mark sheet is dependent upon so many factors over which a candidate has no control. It will be noticed from paragraph G of Annexure 2 referred to earlier that the date of examination is scheduled as the 3rd July, 1977 and the prospectus itself permits candidates to produce their mark sheet up to the 23rd July, 1977. This by itself goes to show that the production of mark sheet had or has no relevance to the test for eligibility to sit at the competitive examination. It was just a chance that the date of the examination had to be postponed to the 7th August, 1977. All the provisions of the prospectus read together leave no manner of doubt that the production of the mark sheet can have relevance only at the point of time when the candidate presents himself for selection before the interview board after the result of the test. There is no sacrosanct about the date -- 23rd July 1977. There is great force in the submission of learned Government Pleader IV that the prospectus is merely a document issued ay the selection committee and supplied to the candidates with application form and that merely lays down the guidelines to the students and contains mere instructions. Mere non-observance of or non-compliance with certain clauses of the prospectus like the one with regard to the date of production of mark sheet cannot be held to be laying down the test of eligibility. If certain clause like the date for production of the mark sheet is relaxed by the selection committee, it cannot be said that selection committee constituted by the Board of Principals would be powerless to make any relaxation in respect of such matters over which the candidates had no control. Our attention was also invited to para. O of Annexure 2 which states that --

"O. In all matters relating to the test the decision of the Board of Principals shall be final." and paragraph X which states that-- "X. If by mistake, a candidate is allowed to sit at the test which otherwise would not have been possible and the error is subsequently detected at any stage before/after admission, the candidate will lose all rights and claims for admission even if he/she competes successfully and in case of any legal dispute arising out of it candidate will not be admitted till the final judgment of the case."

The prospectus (Annexure 2) is signed merely by Principal Manik Singh respondent No. 2, who is designated as the "Convenor P. M. D. T. 1977-78". From all these provisions in the prospectus (Annexure 2), it is quite that with regard to some matters of details the decision of the Board of Principals was meant to be final. The date for presentation of the mark sheet by the candidates would, in my view, certainly be one of such matters falling with in the domain of the Principals which they had the power to relax. Apart from this, the petitioners have not been able to substantiate their allegation that any such candidate has been selected for admission after the interview who has not passed the I. Sc. or equivalent examination. There is a clear assertion in the counter-affidavit that no such candidate has been admitted. In that view of the matter, there seems to be no substance in the first point of Mr. Ghose.

(30.) With regard to the second point raised by Mr. Ghose regarding the selection being vitiated on the ground of leakage of the question papers, it has been categorically asserted in paragraph 12 of the show cause petition filed on behalf of the respondents that it was not correct that the same questions were set for the examination held in the month of August, 1977 and the coaching institutes took any advantage out of it. The allegations have been dubbed as false and mere surmises and have been denied. In that view of the matter, it is not possible for this Court to go into that question at all. Even if it were permissible to go into this controversial question of fact, suffice it to say that all that is alleged in the writ petitions, the supplementary affidavits or the rejoinders filed on behalf of the petitioners is that it was strongly rumoured that there had been such a leakage of the questions. I am not prepared to decide this academic question on the allegation of mere rumour. Even Annexure 3 filed by the petitioners along with their supplementary affi-davit, which is a copy of the question paper, gives a bad odour to the petitioners case. It has already been stated earlier that it is the admitted case of the petitioners that the question papers which were supplied in course of the pre-medical test held on the 7th August, 1977 had to be submitted in the examination hall with the answers of the candidates on the question papers themselves. It is curious, therefore, to follow as to bow the petitioners were able to obtain Annexure 3 which is a question paper along with answers given thereon. To say tbe least, the conduct of the petitioners does not seem to be absolutely above board.

(31.) Incidentally, it is worthwhile noticing a particular fact and a particular provision of law which were brought to our notice in course of the arguments. In pursuance of this Courts order the Patna University submitted the marks obtained in the special exa-mination in Chemistry Practical which was held subsequent to the annual examination held in that branch of the subject. A supplementary counter-affidavit was filed on 19-1-1978 on behalf of the respondents. In that counter-affidavit an assistant working in the office of the Principal, Patna Medical College, and conversant with the facts of the case, has stated that the examination board of the Patna University resolved by a resolution dated 22-1-1977 to hold a special examination in Chemistry Practical only. It was submitted that the aforesaid resolution was passed under Regulation 16 of the Patna University Regulations (hereinafter to be referred to as the Regulations) read with Section 29 (2) of the Patna University Act, 1976 (Bihar Act XXIV of 1976), to be referred to hereinafter as the Act. A true copy of that resolution has been marked Annexure B to the counter-affidavit. Section 29 (2) of the Act reads as "29 (2). The Examination Board shall render advice to the Vice-Chancellor on conduct of examinations and appointment of examiners, setting and moderating question papers, preparation, moderation and publication of examination results, submission of report of such examination results to the Academic Council and generally regulating the methods of improvement in the procedure of correct evaluation of achievement of students and the Vice-Chancellor shall be competent to take final decision : Provided that the Vice-Chancellor shall ap-point the question setters and examiners from the panel of names submitted by the Examination Board."

Regulation 16 of the Regulations runs thus--

"Action to be taken by Examination Board, 16. If it is proved to the satisfaction c-f the examination board that the questions in any subject are such that candidates could not reasonably be expected to answer within the time allowed or have not been clearly distributed over the whole course of that subject, or did not conform to the regulations laid down for the examination in that subject, or show a marked change of standard, or that from any other cause injustice has been or is likely to be done, the examination board shall issue such directions as may be necessary to remedy or prevent such injustice and shall inform the board of moderators concerned of the action taken."

It will be seen from the aforesaid provisions of the Act and the Regulations that in case the examination board is satisfied that any injustice has been done on account of any marked change of standard or due to any other cause, the said board may take steps to remedy or prevent such injustice. If the examination board so makes a recommendation under Regulation 16 aforesaid, under the provisions of Section 29 (2) of the Act the Vice-Chancellor may take such steps in the matter as may be deemed advisable, It has been asserted in Annexure B to the counter-affidavit that the examination board had taken into consideration the large number of failure in Chemistry Practical (45 as compared to 4 in the preceding year) as also the sizeable number of hard cases and had decided that a special examination in Chemistry Practical only may be held and candidates who had failed in Chemistry Practical may appear at such an examination if they so liked on payment of fee of Rs. 25/-. The resolution is duly signed by the members of the examination board and the meeting at which the resolution was passed was presided over by the Vice-Chancellor himself. It has been asserted that it was on account of this special examination held in Chemistry Practical only in Patna University that the date for submission of the mark sheet was subsequently extended by the Board of Principals under whose authority the prospectus (Annexure 2) was issued. Mr. Ghose appearing for the petitioners wanted us to consider the provisions of Regulation 16 as laying down that it was only in cases of unfair questions having been set from the point of view of candidates in general that the examination board could take such a step for having the questions re-moderated by the board of moderators. In my opinion, the language of regulation is quoted above does not warrant any such construction for the simple reason that it is intended to undo a mischief either where the mischief is imminent or to prevent such injustice where it has already been done. The words to remedy or prevent such injustice leave no manner of doubt that the examination board was competent to make such a recommendation to the Vice-Chancellor who, under the authority conferred on him under Section 29 (2) of the Act, was competent to order a re-examination in one or more branches of the subject or subjects. Mr. Ghose also submitted that if it be construed to confer a power on the Vice-Chancellor acting in consultation with the examination board to order a re-examination, such a re-examination ought to have been in the entire subject and not only in the practical part of it. It was, therefore, submitted that if at all the University authorities were competent to hold any examination, they could have done so legitimately in the entire subject of Chemistry and not only in Chemistry Practical. Much stress was laid on the words for the examination in that subject for the purpose of justifying such a submission. In my view, this submission is again misconceived. On a true interpretation of Regulation 16 read with Section 29 (2) of the Act it is quite clear in the context that the term subject is a genus which includes a part of the subject which is merely a species. I do not, therefore, see any force in the contention that the Vice-Chancellor and the examination board could not direct a re-examination in only practical branch of the subject of Chemistry. This contention of Mr. Ghose, therefore, also must be overruled.

(32.) It may also incidentally be mentioned, as has already been stated earlier, that the mechanised system of coding and decoding the roll numbers and the symbols allotted to the candidates as also for any other purposes was the subject-matter of great comment by learned Counsel for the petitioners. It was submitted time and again that even in mechanically computerised system the human element was not altogether eliminated. Assuming that to be so, that does not advance the cause of the petitioners case. It is nobodys case that there has been any sort of human manipulation in coding and decoding of the relevant symbols and roll numbers either prejudicing the case of the petitioners or leading any one else to gain any advantageous edge over them on account of such an imperfect system of coding and decoding through mechanised procedure. Indeed, even in the most perfect scientific system of electronic computation human element is bound to be there. For, it is said, in this world there is no other greater than man and in man there is nothing greater than mind. In all fairness, Mr. Ghose very frankly stated that he had no case of mala fide to press. This criticism of the petitioners in the writ petitions with regard to the possible failure in the working out of the human element in computerised system leads us nowhere. As I have already hinted earlier, the petitioners have set themselves in these cases to a wild goose chase.

(33.) This then brings us to the third point of Mr. Ghose, namely, that the reduction in the number of seats without any reasonable basis amounts to violation of Articles 39 and 41 enshrined in Part IV of the Constitution. While developing this point, it was suggested in course of the argument that such an arbitrary reduction was against the interest of the people of Bihar and being arbitrary in nature was violative of Article 14 and also amounted to a curtailment of the right of the citizens of the State to carry on profession of their own choice, namely, the medical profession, thus violating the provisions of Article 19 (1) (g) of the Constitution too. As has already been stated earlier the total number of candidates proposed to be selected for the purpose of admission in the session in question is 670 only whereas before the taking over of the private medical colleges by the State the number of seats for candidates to be admitted to the medical or dental course in the State was approximately 975. This has been stated in paragraph 7 of the writ petitions. A ground has been taken in paragraph 24 (vi) that the reduction in the number of seats in medical colleges tends qualified medical men, who may render health service to the people of the State and is accordingly in contravention of the directive principles of the State policy. In paragraph 11 of the show cause petition filed on behalf of the respondents it has been stated that the reduction in seats has been made on different recommendations of the Indian Medical Council as well as a High Power Committee. It has further been stated that in course of the strike resorted to by the Junior Doctors of the State one of the conditions for calling off the strike was a reduction in the number of seats in the medical colleges which the State Government had to concede. It was suggested by Mr. Ghose that the reply in the show cause petition on this aspect of the matter was too vague to justify the reduction in the number of seats. The grievance with regard to the infringemenl of Articles 14 and 19 (1) (g) on account of the reduction in overall number of seats in all the medical colleges in the State is. if at all, too far-fetched and vague. There cannot, by any stretch of imagination, be said to be any infraction of Article 14 on account of the reduction in the number of seats, for that, in no manner, can be suggested to have re-suited in a denial by the State to any person, much less any of the petitioners, of equality before the law or the equal protection of the law. With regard to Article 19 (1) (g), suffice it to say that Clause (6) of Article 19 confers ample competence to the State to make any law imposing in the interest of the general public reasonable restriction on the exercise of right conferred by Article 19 (1) (g). If in its wisdom the State Government has chosen in the interest of the citizens of the State to reduce the number of seats for the purpose of calling off the strike resorted to by the Junior Doctors of the State, that certainly is a relevant consideration from the point of view of the interest of the general public for which the State has acted. The argument with regard to the infraction of either Article 14 or Article 19 (1) (g) merely on account of the reduction in overall number of seats, apart from being too remote and far-fetched, has to be stated merely to be rejected. There is equally no substance in the point of Mr. Ghose that either Art, 39 or Article any way inhibits the State from reducing the number of seats in medical colleges owned, managed and controlled by the State Government. Our attention was drawn especially to Clause (e) of Article 39 which lays down that the State shall, in particular, direct its policy towards securing that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 41 merely lays down a guideline for the State to follow that within the limits of its capacity and development the State shall make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, etc. In my view, the policy which the State is enjoined to follow by Articles 39 and 41 does not confer any justiciable right legally enforceable by the petitioners. The question as to whether a particular number of seats is desirable to be limited for the purpose of admission in the medical or dental course in the medical profession cannot be said to attract infringement of any right legally conferred on any of the petitioners. Merely because the number of seats in medical colleges has been reduced, it cannot be said that State has been acting in enforcement of its policy towards an end by which the health and strength of workers, men and workmen or children, and citizens are to be adversely affected. The comment of Mr. Ghose that the reply of the respondents in paragraph 11 of their show cause petition in response to the allegations made in paragraph 7 of the writ petitions is vague, is, I say so with due deference, wholly misconceived. As a matter of fact, the allegation of the petitioners in this behalf is itself, if I may say so repeatedly, much too vague and remote to attract any inhibitive clause either in Part III or Part IV of the Constitution. Our attention was drawn to the decisions of the Supreme Court in the case of State of Bombay v. Bombay Education Society (AIR 1954 SC 561 ). In re The Kerala Education Bill, 1957 (1959 SCR 995) and E. P. Royappa v. State of Tamil Nadu (AIR 1974 SC 555 ). None of these cases, as I shall presently point out, can be pressed into service for aiding the petitioners cause. In the case of Bombay Education Society (supra) the question that had fallen for consideration by the Supreme Court was whether an order of the Bombay Government to the effect that no primary or secondary school shall admit to a class where English is used as the medium of instruction any pupil other than one belonging to a section of citizens, language of which is English, namely, Anglo-Indians and citizens of non-Asiatic descent was valid or not. It was held that the impugned order offended against the fundamental right guaranteed to all citizens by Article 29 (2) of the Constitution. There was absolutely no question of any infraction of Articles 14 and 19 or for that matter any provision of Part IV of the Constitution. The decision is wholly irrelevant for the purpose. In the case of Kerala Education Bill (supra) the Supreme Court held that a directive principle of State policy could not override a fundamental right and must subserve it but no court in determining the ambit of fundamental right should entirely ignore a directive principle and should try to give as much effect to both as possible by adopting the principle of harmonious construction. It was further held that the clauses of the Kerala Education Bill, 1957 could not be said to be violative of the provisions of Article 14 of the Constitution. I do not see how this case can be of any help to the petitioners for the purpose of the point canvassed by Mr. Ghose. In Royappas case (supra) the observation of the Supreme Court that was relied upon was that Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that the State action must be based on valid, relevant principles applicable alike to people similarly situate and must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. In that context, it was also observed that mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact, the latter comprehends the former; both are inhibited by Articles 14 and 16. In the instant cases, for the point that has been urged nothing has been shown as to what extraneous or irrelevant consideration has weighed with the Government in reducing the number of overall seats in the medical and dental colleges of the State nor, for that matter, nothing has been shown at to how persons similarly situate are being discriminated against one another. I am not satisfied that anything has been shown to us which can lead to an inference that the reduction of seats is a result of any extraneous consideration or mala fide exerc

(34.) This then brings us to the last submission of Mr. Ghose namely, the infraction of Articles 14 and 15 of the Constitution on the ground of reservation of seats for different cections of people. I have already stated earlier that it is now the admitted case of the parties that out of the total number of 670 seats, 6 seats are available for the Nepalese students, 23 seats are available for being filled up by nomination by the Central Government under the head cultural seats and 14 seats are to be fiiled up by nomination by the three institutions, namely, the Lakshmi Narayan Trust, Tisco and the Coal Mines Welfare Organisation. This leaves a balance of 627 seats. Out of them, 125 seats are earmarked for girl candidates, 88 seats are reserved for scheduled caste candidates, 56 tor scheduled tribe candidates and 63 for backward classes. According to Mr. Ghose, this leaves a balance of 295 seats only. Thus, the total reservation for different classes of candidates is much more than 50 per cent, and is, hence, ultra vires. While dealing with each of the classes separately, I shall state the stand taken by the respondents in this regard.

(35.) So far as the 43 seats to be filled up by nomination are concerned, certainly it cannot be a case attracting the provisions of Article 15 of the Constitution. The question is whether it impinges upon the provisions of Article 14. It is well settled that Government can regulate admissions to its own institutions in the colleges run by it provided the rules for selection applicable to the colleges do not suffer from any unconstitutional or illegal infirmity. In the case of D. N. Chanchala v. State of Mysore (AIR 197! SC 1762) the validity of the rules for admission to the Government medical colleges in the State of Mysore was chalienged on, inter atia. a ground that 60 seats out of an aggregate of 765 seats were placed at the disposal of the Government being set apart for the various categories of persons mentioned therein. While rejecting this contention, Shelat J., speaking for the Supreme Court held as follows :--

"..... The Government is entitled to ay down sources from which selection for admission would be made. A provision laying down such sources is strictly speaking not a reservation. It is not a reservation as understood by Article 15 against which objection can be taken on the ground that it is excessive".

It was further held--

"Setting apart 60 seats under Rule 4, is, as already stated, not a reservation but laying down sources for selection necessitated by certain overriding considerations, such as obligations towards those who serve the interest of the countrys security, certain reciprocal obligations and the like." In the case of Chitra Ghosh v. Union of India (AIR 1970 SC 35 ) a number of seats were reserved in the Maulana Azad Medical College, Delhi, for certain groups of persons. The first group of persons were the sons and daughters of residents of Union Territories other than Delhi. Another group consisted of the sons and daughters of Central Government servants posted in Indian Missions abroad. Still another group of persons were the cultural, Colombo Plan and Thailand scholars by reason of reciprocal arrangements of educational and cultural nature. These reservations were challenged as being ultra vires. In that context, Grover, J., speaking for the Supreme Court, held in para. 9--

"It is the Central Government which bears the financial burden of running the medical college. It is for it to lay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification". So in the case of State of Uttar Pradesh v. Pradip Tandon (AIR 1975 SC 563 ) the reservation of seats in medical colleges in Uttar Pradesh for candidates from hill and Uttarkhand areas was held to be valid on the ground that such areas were instances of socially and educationally backward classes of citizens. In that context, it was observed that when large areas of land maintain a sparce, disorderly and illiterate population, whose property is small and negligible, the element of social backwardness is observed. In the instant cases it has already been stated earlier that the stand of the respondents is that 6 out of 43 seats are available for Nepalese students, 23 seats are placed at the disposal of the Government of India to be filled up by nomination from out of candidates belonging to foreign countries, Nagaland, Sik-kim and Bhutan for State reasons and 14 seats to be filled up by nomination by the three institutions mentioned above. This reservation for Nepalese students cannot be said to be without any reasonable nexus, for it needs no argument to persuade me to hold that relationship with the country of Nepal has, for State reasons, to be as cordial as possible. The lack of sufficient medical education in Nepal is also a wellknown fact of which, I think, we can take judicial notice. So also is the case with regard to the 23 seats to be filled up "by the Central Government. It needs little argument to persuade me to hold that candidates of foreign countries are to be nominated by the Government of India on account of reciprocal arrangements or for other State reasons. And, in so far as the candidates for Nagaland, Sikkim and Bhutan are concerned, they are clearly covered by the principle laid down by the Supreme Court in Pradip Tandons case (supra) as also the cases of Chitra Ghosh and D. N. Chanchala. The economic and educational backwardness of the citizens residing in Nagaland, Sikkim and Bhutan is a notorious fact. The policy of appeasement and maintenance of good relationship with these three territories is equally important. None of these can be said to be unreasonably excessive. So also, the reservation of 14 seats to be filled up by nomination by the three institutions mentioned above can neither be said to be unreasonable nor excessive. The reason given by the respondents is that it was by way of an agreement with those 3 institutions which had offered their hospitals to the State for educational facilities in the medical colleges, namely, Mahatma Gandhi Medical College, Jamshed-pur and Patliputra Medical College. Dhan-bad. This is not by way of any reservation hit by Article 15 or 29. This allotment is merely with regard to the sources from which these seats are to be filled up due to the exigencies of the State policy. In my view, no constitutional provision can be said to be infringed on account of allocation of those 43 seats. A number of other cases were also referred to on behalf of the respondents which I do not think it worthwhile to discuss in detail; I may merely make a reference to them, namely, Probhudas Morarjee v. Union of India (AIR 1966 SC 1044 ) and R. Chitralekha v. State of Mysore (AIR 1964 SC 1823 ).

(36.) With regard to 125 seats earmarked for girl candidates, at the initial stage even Mr. B. C. Ghose did frankly admit that reasonableness was shown in their cases in the counter-affidavits and show cause petitions filed by the respondents. Subsequently, however Mr. Ghose contended that this reservation was hit by the provisions of Article 15 (1) and could be protected by Article 15 (3) only if a rational nexus is established by the State between the object to be achieved and the making of this special provision for girls. It was argued on behalf of the learned Government Pleader that this was not a reservation hit by Article 15 (1) but was merely a classification of a source from which these seats were to be filled up. In my opinion, the contention put forward on behalf of the respondents is justified. Article 15 (1) merely inhibits a discrimination on the ground, inter alia, of sex only. In the instant cases, it cannot be said that the reservation of 125 seats for girls is on account of sex only. It has already been stated that the respondents counter-affidavit and show cause petition clearly state that there was a requirement in the State of a large number of lady doctors for posting in the Govt. Hospitals and dispensaries and the cadre strength of lady doctors was more or less 1/5th of the entire cadre strength of the doctors in the State. The Government, keeping in view the job requirement of this 1/5th of the total cadre strength, had fixed 125 seats to be filled up by girl candidates belonging to all classes. The mental aptitude and psychological background of lady patients for treatment of gynaecological diseases and obstetric services by lady doctors cannot also be ignored for the purpose of judging the reasonableness of such earmarking. The fact that the lady doctors form 1/5th of cadre strength of the doctors strength has nowhere been categorically denied. If in the interest of the lady patients of the State and for filling up the required cadre strength of doctors, 125 seats have been reserved for girl candidates, that action cannot, in my view, be said to be any discrimination on the ground of sex alone. Even assuming though not accepting the position that the provisions of Article 15 (1) are attracted, it cannot be said that the reason behind such a reservation is non est. There is certainly a nexus between the reservation and the object to be achieved by such reservation, namely, the filling up of the 1/5th of the cadre strength of doctors of the entire State by the lady doctors and, therefore, it must be held to be fully protected by the provisions of Article 15 (3). There is thus no merit in this contention of the petitioners also.

(37.) So far as the candidates of the scheduled castes and scheduled tribes are concerned, it has already been stated that the reservation is of 88 seats for scheduled caste candidates and 56 for schedaled tribe candidates. Apart from the fact, as already stated above, that the seats in this particular session to be filled up by reservation by the candidates of scheduled castes and scheduled tribes are 45 and 41 only respectively, even the reservation of 88 seats for scheduled castes and 56 for scheduled tribes cannot be said to be unreasonably excessive, for 88 seats form barely 14 per cent and 56 seats merely 9 per cent of 627 seats to be filled up including the girl candidates. The reservation in their cases, therefore, is fully covered by the provisions of Article 15 (4) and cannot be said to be violative of the provisions of Article 15 (1) or 29 (2) of the Constitution.

(38.) That leads us to the question of reservation for backward classes only. As I have already said earlier, the respondents stand is that even 63 seats said to be reserved for backward classes constituting 10 per cent of the entire aggregate of 627 seate are not filled up by the backward class candidates on the basis of reservation alone. If the students belonging to backward classes compete on their own merit with the general classes, the number of reserved seats for them is reduced by the number competing on merit. It is also their case that the past experience has shown that 5 to 7 per cent seats are to be filled up by candidates belonging to backward classes on their own merit. As such the percentage of reserved seats for backward classes has already been reduced by 5 to 7 per cent in the past. So far as the present session is concerned, 34 candidates belong to backward classes, whose results have been published after competing on their own merit, leaving only 29 seats to be filled up on the basis of reservation for the backward classes. I have also stated earlier that the allegation of the petitioners that there is further relaxation with regard to their eligibility by reducing the percentage of marks from 45 per cent to a figure below that, has been stated to be incorrect on behalf of the respondents. That being so, according to the respondents if only 29 seats out of the total number of 627 seats are to be filled up by the candidates of backward classes on the basis of reservation at all, it cannot be said to be unreasonably excessive. That question is wholly academic in these cases. There is a fundamental reason why the petitioners grievance on this score cannot be ventilated in these writ applications. In the writ petitions the adjudging by the State Goverment, in the past, of persons as forming the backward classes has not been challenged at all. Even if it be assumed that by way of submission in the subsequent affidavits it has been challenged or, as the point has been agitated at the Bar, it was open to challenge, one thing is quite clear, namely, that if it were shown to us that the backward classes had been treated to be synonymous with backward castes, I would have no hesitation in holding it to be unconstitutional. It is evident that economic consideration has to be weighed along with social and educational backwardness by the Government in defining the backward classes. If caste is not the sole factor but other relevant factors are also taken into consideration then it may, to some extent be justified in appropriate cases. Mr. Ghose vehemently contended that the onus was on the State or on the respondents to justify the reservation in favour of the backward classes or for that matter any other reservation which was in the nature of exceptions to the provisions of Articles 14, 15 (1) and 29 (2) of the Constitution. Mr. Ghose strongly relied on the decision of the Supreme Court in the case of M. R. Balaji v. The State of Mysore (AIR 1963 SC 649 ), State of Andhra Pradesh v. P. Sagar (AIR 1968 SC 1379 ) and State of Kerala v. N M. Thomas (AIR 1976 SC 490 : (1976) SCC (Lab) 227). In Balajis case (supra) it was held that Article 15 (4) has to be read as a proviso or as an exception to Article 15 (1) or 29 (2). The backward classes, for whose improvement special provision is contemplated by Art 15 (4) are, in the matter of backwardness comparable to scheduled castes and scheduled tribes. The backwardness under Art 15 (4) must be social and educational. It should not be either social or educational but is both social and educational. Social backwardness is, on the ultimate analysis, the result of poverty to a very large extent. Keeping these principles in view, the Supreme Court held mat the order of the Government of Mysore by which 68 per cent of the seats available for admission to the Engineering and Medical Colleges and to other technical institutions were reserved for backward classes, more backward classes, scheduled castes and scheduled tribes was bad because the classification of socially backward classes of citizens made by the State proceeds on the consideration only on their castes without regard to other factors which were undoubtedly relevant. This case is not of any avail to the petitioners because, as I have already shown, in the instant cases we are left merely guessing as to what factors--relevant or irrelevant--have been taken into consideration apart from the caste factor as the definition of such a class has not been clearly and expressly challenged. If all the relevant considerations weigh with the Government in making the reservation in favour of backward classes whose family income does not exceed Rs. 3,000/- per annum, that per se cannot be said to be illegal. If at all, this case really supports the respondents stand. In the case of P. Sagar (supra) it was held that Article 1.5 (1) guarantees fundamental right of far-reaching importance to the public generally. Within certain defined limits an exception has been engrafted upon the guarantee of the freedom in Clause (i), but being in the nature of an exception, the conditions which justify departure must be strictly shown to exist. It was further held that when a dispute is raised before a Court the Courts of the country are invested with the power to determine the validity of the law which infringes the fundamental right of the citizens and others and when a question arises whether a law which prima facie infringes a guaranteed fundamental right is within an exception, the validity of that law has to be determined by the courts on materials placed before them, Mr. Ghose contended on the authority of these decisions that no materials have been placed before us to justify the validity of the reservation for the backward classes. As I have pointed out at the outset, in the instant cases no dispute has been raised regarding the validity of formation of the backward classes nor have even the Notifications under challenge been produced before us. If and when such a dispute is raised in a more appropriate case, the formation of tuch classes as backward may have to be judged objectively. But in the instant cases no foundation of facts has been laid nor any dispute raised which can justify my going into this question in these cases. In the case of N. M. Thomas (supra) where the Supreme Court was seized with the question of testing the validity of an action in the context of Article 16 (1) and (2) read with Article 14 and was trying to find out whether it could be protected under the provisions of Article 16 (4), it was held that the classification of employees belonging to scheduled castes and scheduled tribes is a just and reasonable classification having rational nexus to the object of providing equal opportunity for all citizens in the matter relating to employment or appointment to public office, and at the same time it was held that the special treatment accorded to the scheduled castes and scheduled tribes in Government services, which had become part and parcel of the conditions of service over these long periods, amply justifies the classification of the members of the scheduled castes and scheduled tribes as a whole by Rule I3-AA and Government Orders dated 13-1-1972 and 11-1-1974 in that case. This case also does not help the petitioners. In the instant cases also it will be seen that the Government order under challenge dated 29-1-1975 as contained under an-nexure A was issued as far back as on the 8th Jan., 1973 and on the basis of economic backwardness seats have been filled up in the past years also, while I fully agree that in a case where dispute is raised challenging the validity of classification, the materials have to be produced by the State to satisfy the Court as to whether they justify the constitution of such backward classes; in the instant cases the question of onus is wholly academic for the simple reason that the petitioners have never challenged the validity of the formation of backward classes.

(39.) A large number of other decisions were relied upon by learned counsel for the petitioners. They were the cases of Heggade Janardhan Subbarye v. State of Mysore ((1963) Supp I SCR 475), Rajendra v. State of Madras ((1968) 2 SCR 786 : AIR 1968 SC 1012 ), Triloki Nath v. State of Jammu and Kashmir (AIR 1969 SC 1 ), Triloki Nath Tiku v. State of Jammu and Kashmir (AIR 1967 SC 1283 ) and A. Periakaruppan Chettuir v. State of Tamil Nadu (AIR 1971 SC 2085 ). In the view that I have taken, none of these decisions can be pressed into service in 1he aid of the petitioners case, and the reservation in the instant cases cannot be said to have been made for extraneous reasons or for reason of caste alone nor can it be said to be unreasonably excessive.

(40.) Mr. Ghose dwelt at length upon, and addressed us, more or less, in a spirited manner that it was high time that there should be no reservation in favour of backward classes, scheduled castes and scheduled tribes at all, for it was intended to give them protection for some time only, namely, for 10 years and subsequently for another 10 years on the recommendation of the Backward Classes Committee and that, therefore, such reservation should no longer be permitted by Courts of Law. There may be much to be said in favour of Mr. Ghoses speech or dissertation but certainly we feel bound by the constitutional provisions and so long as the Constitution contains the provisions like Articles 15 (3) and (4), it is not open to us to go behind the policy of such reservations; we are merely to test as to whether such reservations in favour of such of the classes on the ground of sex or caste or class can be held to be justified. In the instant cases I have already held that in so far as the 43 cultural seats and 125 seats fur girl candidates are concerned, they are not reservations at all nor, for that matter, is the reservation in favour of girl candidates only on the ground of sex. They cannot be said to be reservations hit by Article 15 (1) or 15 (2) but are merely defining the sources from which these seats have to be filled up classifying the sources, and these have been validly classified for the purpose not being hil by the provisions of Article 14 of the Constitution. But even assuming in the case of girl candidates that it was a reservation and not a definition of sources from which the seats were to be filled up, it is not a reservation on the ground of sex alone and. therefore, does not attract the provision of Article 15 (1). Apart from that, even assuming that Article 15 (1) is attracted, the reservation is amply protected on account of its reasonableness by Article 15 (3). In the cases of candidates from scheduled castes and scheduled tribes I have already held that the reservations are both reasonable and not excessive. Regarding the reservation in favour of backward classes, the definition of backward classes by the State may have to be tested in a suitable case where such formation is directly challenged and proper foundation for such challenge has been laid in such a case in future.

(41.) Before parting with the cases, I may mention a technical objection raised on behalf of the respondents regarding the maintainability of these applications on account of non-joinder of the University or the candidates who had already been admitted. I, for one, do not see any force in such objection for two reasons. Firstly, all the candidates who have been admitted have been so done during the pendency of these writ applications and, secondly, what is challenged is the reservation or definition of source from which the candidates are to be taken by the State. If a State action or law is challenged on the ground of infraction of any constitutional provisions, it is not a rule of universal application that all persons deriving an advantage or benefit out of such a State action or law must necessarily be impleaded as parties, for should the State action or law itself be unconstitutional, no person is entitled to geek protection of such an action or law. Without going into this question any further, on the facts and in the circumstances of the instant cases, I do not see any justification in the preliminary objection raised on behalf of the respondents with regard to the non-maintainability of these applications on account of non-joinder either of the candidates who have been admitted during the pendency of these applications or the P;ttna University.

(42.) I thus do not see any merit in these writ applications. They are accordingly dismissed but in the circumstances of the case I shall make no order as to costs. Birendra Prasad Sinha, J.

(43.) Ever since the case of State of Madras v. Smt. Cham-pakam Dorairajan (AIR 1951 SC 226 ), the question regarding the reservation of seats in the medical colleges has been considered by the Supreme Court many a time. In the above case, it was held that the fundamental rights guaranteed by Articles 15 (1) and 29(2) were not controlled by any exception and that since there was no provision under Article 15, corresponding to Article 16 (4), the Governments order fixing the admission in the stated proportion by reference to the communities and the candidates could not be sustained. It was directly as a result of the decision in the above case that Article 15 was amended and Clause (4) was added to it The matter came up for detailed consideration in the case of M. R. Balaji v. The State of Mysore (AIR 1963 SC 649 ). It was held that backwardness under Article 15 (4) must be social and educational. It was not either social or educational but it was both social and educational. The learned Judges stated :

"The problem of determining who are socially backward classes is undoubtedly very complex. Sociological, social and economic considerations come into play in solving the problems, and evolving the proper criteria for determining which classes are socially backward is obviously a very difficult task; it will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way. That is the function of the State which purports to act under Article 15 (4)." On the question and about the extent of the special provision to be made under Article 15(4), the learned Judges observed as follows : "When Article 16 (4) refers to the special provision for the advancement of certain classes or scheduled castes or scheduled tribes, it must not be ignored that the provision which is authorised to be made is a special provision; it is not a provision which is exclusive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interest of the society at large would be served by promoting the advancement of the weaker elements in the society that Article 15 (4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Article 15 (4). It would be extremely unreasonable to assume that in enacting Article 15 (4) the Constitution intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored." They further observed :

"Speaking generally and in a broad way, a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case."

The whole matter, thus, has to be approached objectively and in a rational manner. A reservation of 68 per cent in the above case was held inconsistent with Article 15 (4). The decision in the case of Balaji (supra) was interpreted in the case of T. Devadasam v. Union of India (AIR 1964 SC 179 ), in which it was held that the ratio of the decision in the case of Balaji was that the reservation of more than half the vacancies was per se destructive of the provision of Article 15 (4). Considerations of natural interest and interests of community or society as a whole cannot be ignored in determining the question as to whether the special provision contemplated by Article 15 (4) can be special provision which excludes the rest of the society altogether. It may be relevant to state here that the decision in the case of Balaji (supra) was given on 28th of Sep., 1962. The report of the University Education Committee which had considered the problem of assistance to the Backward communities was considered in the said case. The Commission had observed that the percentage of reservation should not exceed a third of the total number of seats and added that the principle of reservation may be adopted for a period of ten years. The All India Council of Technical Education had recommended that the reservation for Scheduled Castes and Scheduled Tribes and other Backward communities may be up to 25 per cent with marginal adjustments not exceeding 10 per cent in exceptional cases. The Central Government suggested to the various State Governments that reservation should not, in any case, exceed 35 per cent (vide para 14, Balajis case, supra) This shows that the reservation contemplated under Articles 15 (4) and 16 (4) was not to be excessive and, in any event, could not be perpetual. As was pointed out in the case of T. Devadasam (supra), the assessment must be made every year. It must be established by the circumstances and conditions obtaining from year to year.

(44.) It is in this background that I would like to consider the question about the extent of the special provision made in the present case.

(45.) It is admitted on all sides that the total number of seats to be filled in all the medical colleges of Bihar is 670. As stated in para 3 of the counter-affidavit filed on behalf of the respondent-State, the "seats available for admission and reservation" are 627. Out of this, 88 seats are reserved for Scheduled Castes, 56 for Scheduled Tribes, 63 for Backward classes and 125 for girl students. The remaining 43 seats out of 670 are said to be cultural se.ats. Out of the said 43 seats, six are available for Nepalese students, 23 to be filled up by nomination by the Central Government and 14 to be filled up by nomination by the three institutions, viz., the Lakshminarain Trust, TISCO and the Coal Mines Welfare Organisation. So far as the 43 cultural seats are concerned, the argument is that the Government is entitled to set apart certain seats for the various categories of persons. Reliance was placed on the case of D. N. Chanchala v. State of Mysore (AIR 1971 SC 1762 ) in which it was held that the Government was entitled to lay down sources from which selection of admission could be made and a provision laying down such sources was, strictly speaking, not a reservation. This was necessitated by certain overriding considerations. In the case of Chitra Ghosh v. Union of India (AIR 1970 SC 35 ) also it was held that the Government which bears the financial burden of running the medical colleges could lay down the criteria for eligibility and, if the sources are properly classified on reasonable basis, it was not for the Courts to interfere with the manner and making of classifications. I agree that no constitutional provisions can be said to be infringed on account of the allocation of these 43 seats and hold accordingly.

(46.) As regards the 125 seats to be filled up by the girl candidates, I am in respectful disagreement with the findings of my learned brothers that this is not a reservation but merely a classification of sources from which these seats are to be filled up. A half-hearted argument was made by the learned Government Pleader IV that these 125 seats to be filled up by the girl students are not reservation but allotment. In the alternative, it was argued that even if it was treated as reservation, it was fully protected by the provisions of Article 15 (3) of the Constitution and was neither excessive nor unreasonable. It may once again be stated here that according to the States counter-affidavit 627 seats are "available for admission and reservation". 125 seats meant for the girl students are included in these 627 seats. According to paragraph 3 (IV) of the counter-affidavit, these 125 seats are to be filled up by girl students belonging to all classes on account of certain job requirements. In the show cause filed on behalf of the State (in para 7), it was stated that keeping in view the job requirements, 1/5th of the total number of seats have been "ear-marked" for girl candidates. It is nowhere stated in the counter-affidavit that these 125 seats to be filled up by the girl candidates are not reservation but only a classification of source. This probably could not be done. A supplementary counter-affidavit was filed on behalf of the State. In para 5 of this supplementary counter-affidavit, it was stated that "the seats which have been reserved or allotted to the girl candidates are by orders of the Government dated 29-1-1975". Here again, it was not categorically stated that these 125 seats are not reservation seats but allotment. The order dated 29-1-1975 has been annexed to this counter supplementary affidavit and has been marked as An-nexure A. It reads as under : ..(Verunacular Matter Omitted).. This document is the basis of reservation and fixes the percentage of reservation for the scheduled castes, scheduled tribes, backward classes and the girls. According to annexure A, 20 per cent of the seats are to be reserved for the girl students. It may be stated here that 125 is near about 20 per cent of 627. This is not a mere coincidence. It is also stated in annexure A that the seats meant for the Central Government and other States shall remain as before. No percentage has been fixed for this. If these 125 seats for the girl students were meant to be allocation, it could have been so stated in annexure A. No order of the Government has been brought to our notice showing that these 125 seats are allocations or that the Government ever classified the source for the girl candidates. The State has relied only upon annexure A in this respect. Annexure A clearly makes a reservation of 20 per cent even for the girl students. Moreover, if this was a classification of source, then like the 43 seats, these 125 seats also should have been set apart from the total number of 670 seats and in this way only 502 seats could be available for general scheduled castes will be only 70 seats out of 502 and not 88 seats as reserved for them. 88 seats reserved for scheduled castes will become 17.5 per cent of 502. Nine per cent reserved for scheduled tribes will be 45 seats out of 502 and not 56 as reserved for scheduled tribes. 56 seats reserved for the scheduled tribes will be more than 11 per cent of 502. Similarly, ten per cent reserved for Backward classes will be only 50 seats out of 502 and not 63, which has been reserved for them. 63 will be 12 1/2 per cent of 502. The number of seats reserved for Scheduled Castes (88), Scheduled Tribes (58) and Backward classes (63) comes to 207, which will be about 41 per cent of the 502 left over seats for general competition. Annexure A does not make a reservation of 41 per cent for these three categories. Reservation for these three categories, according to annexure A, works out to only 33 per cent. The Government while working out the number of seats on the basis of the percentage given in annexure A appears to have taken into consideration 627 seats and has arrived at the figure 88, 56 and 63 respectively, for the three categories. This also shows that the 125 seats meant for the girl students can never be allocation but a reservation. The argument of the respondent State thus appears to be self-contradictory. No specific averment was made on behalf of the State in this regard and only a half-hearted attempt was made by the learned Government Pleader to justify the 125 seats by saying that it was an allotment. Here, I must once again repeat that the sources, if any, must be properly classified on reasonable basis. The classification of source must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought to be achieved. It is for the State to supplv the materials in this respect as the matter is justifiable. Merely saying that a particular number of seats are allocation or classification of source is not enough. Even assuming that the 125 seats meant for the girl students are allocations, on the basis of the grounds mentioned in the counter-affidavit, I am not prepared to accept that they are reasonable. I am, however, also not prepared to accept that they are allocation and merely a classification of source. On the basis of the materials on record and annexure A, it must be held that this is also a case of reservation. According to annexure A, the total reservation meant for scheduled castes (14 per cent), scheduled tribes (9 per cent), Backward classes (10 per cent) and girls (20 per cent) comes to 53 per cent. A reservation of 53 per cent in the instant case must be held to be destructive of the provisions of the Constitution and is ultra vires.

(47.) So far as the question of reservation in favour of Backward classes is concerned, I agree with the views expressed by Sarwar Ali. J. The principles governing reservation have been succinctly stated by him. It was contended on behalf of the petitioner that the reservation made in favour of the Backward classes is not constitutionally valid, but since there is no case made out for this attack in the writ application, it is not possible to decide this matter in the present case. It is true that no material has been placed on record in support of the States contentions that the Government had taken into consideration the social and educational and economic factors while making the reservation in favour of the Backward classes. The onus to prove this is surely on the State but where the criteria itself is not under challenge, the question of onus does not assume any importance. It is however, relevant to state here that at the time of argument learned Government Pleader produced before us a printed list of backward castes torn out of some document and stated that that list contained the various castes constituting the Backward classes. That list was not brought on the records of the case for the reasons best known to the respondent-State and the learned Government pleader. He was repeatedly asked by us to disclose from where he had got that list but, in spite of promises made in that behalf, he did not disclose the source. There is, therefore, no material on the record to show which caste or castes are included in the list of Backward classes. Tt may be stated here that caste may be a relevant circumstance in ascertaining the social backwardness but it cannot be the sole or dominant test in that behalf. Article 15 (4) of the Constitution does not speak of caste but only speaks of classes. It was pointed out in the case of R. Chitralekha v. State of Mysore (AIR 1964 SC 1823 ) that if the makers of the Constitution intended to take caste also as units of social and educational backwardness, they would have said so as they have said in the case of scheduled castes and scheduled tribes. If it were the intention to equate classes with castes, nothing prevented the makers of the Constitution to use the expression "Backward classes or Castes". The teamed Judge pointed out:

"The juxtaposition of the expression Backward classes and scheduled cartes in Article 15 (4) also leads to a reasonable inference that the expression classes is not synonymous with castes. It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong."

The learned Judge further observed as follows : "But what we intend to emphasize is that under no circumstance a class can be equated to a caste though the caste of an individual or a group of individuals may be considered along with other relevant factors in putting him in a particular class." In the case of Triloki Nath Tiku v. State of Jammu and Kashmir (AIR 1967 SC 1283 ) certain reservations were made in favour of Muslims, Hindus from Jammu Province and Kashmir! Pandits under Article 16 (4). The sole test of backwardness was the inadequacy of representation in the services of the State. It was held that in order to attract Clause (4) of Article 16, it was necessary to satisfy two conditions, viz. (1) a class of citizen is backward, i. e., socially and educationally, in the sense explained in Balajis case (supra) and (ii) the said class was not adequately represented in the services of the State. The question was whether Mohammadans of the entire State of Jammu and Kashmir and the Hindus of Jammu Province were backward and whether they were not adequately represented in the services of the State. If they were backward, whether the percentages of reservation provided for them in the services were reasonable, having regard to the employment opportunities in that cadre of service to the general public. On the materials placed, the Supreme Court could not come to any conclusion and called for a report before finally disposing of the writ petition. It directed the High Court to gather the necessary materials such as -the total population of the entire State, the break up figure of the two provinces, the strength of the two communities and the extent of their social and educational backwardness and the criteria applied in that regard. I have emphasised this point for the following reasons. In the torn printed list mentioned above, a list of several castes has been given. There is nothing more in it. As stated above caste alone cannot be the basis of backwardness. It is for the State to place materials to show that it has taken into consideration the social and educational backwardness of each of them. What would be the basis of such a consideration is fully explained in the case of Triloki Nath Tiku (supra). In the case of Rajendran v. State of Madras (AIR 1968 SC 1012 ) a list was submitted which was based on caste alone. It was contended that it was violative of Article 15 (1). In that case, however, explanation was given by the State which was not controverted. No attempt seems to have been made on behalf of the petitioners to show that any caste mentioned in the said list was not socially and educationally backward. In that event, even though the list was prepared castewise. it was held that it was not violative of Article 15. Such an attempt has not been made on behalf of the State in the present case. It has been generally stated that the Government took into consideration the social and educational backwardness of the various castes mentioned in the list. That, in my opinion, is not sufficient. It may be that a particular caste or castes mentioned in the said list were never socially and educationally backward or, if they were so at any point of time, they have ceased to be so with the advent of the social, educational and economic progress which the country has made since after independence. Backwardness is really and primarily a result of poverty and this factor cannot be lost sight of. In the case of State of Andhra Pradesh v. P. Sagar (AIR 1968 SC 1379 ) it was observed :

"Reservation may be adopted to advance the interests of weaker sections of society, but in doing so, care must be taken to see that deserving and qualified candidates are not excluded from admission to higher educational institutions. The criterion for determining the backwardness must not be based solely on religion, race, caste, sex or place of birth, and the backwardness being social and educational must be similar to the backwardness from which the scheduled castes and the scheduled tribes suffer". By merely asserting that reservation was made after full consideration of the relevant matters, the jurisdiction of the courts to determine whether by making such a reservation the fundamental right has been infringed, is not excluded. In the facts and circumstances of this case, however, I would refrain from expressing any opinion as to whether the persons or the castes who have been designated as Backward classes in the present case, fulfil the constitutional requirements.

(48.) On point No. 1, 2 and 3, formulated in paragraph 7 by S. K. J., I agree with the conclusions arrived at by him and Madan Mohan Prasad, J.

(49.) It was urged on behalf of the State that the writ applications were not maintain-able in absence of the necessary parties, viz. the students who have been selected for admission into the medical colleges. It has been held by Madan Mohan Prasad, J., that in the absence of necessary parties, the writ ap-plications are not maintainable and must be dismissed. I agree with him.

(50.) The writ applications, therefore, must be dismissed but without costs. Lalit Mohan Sharma, J.

(51.) I have got the advantage of perusing all the four judgments prepared by my learned brothers in this case. I agree with Mr. Jus-tice Madan Mohan Prasad that the writ applications are not maintainable in absence of the students who have been selected for admission in the colleges, including the 38 students who passed the I. Sc. examination after clearing Chemistry Practical at the special examination. The petitioners might be held to be under a disadvantage in this regard at the time when the writ applications were filed. They asserted that they had no means to get the names of the selected candidates, but the position changed during the pendency of the writ applications. On an application filed by the petitioner, the respondents were directed to produce the names of all the students either admitted or in respect of whom a decision had been taken for their admission along with their marks etc. The case was taken up for hearing before the Full Bench on the 18th January 1978 and the learned counsel for the petitioners mentioned before the Bench that the documents were not available to them and they have not been able to examine the same. The Bench immediately directed that the documents would be made available for examination by the learned counsel for the petitioners in court. The hearing of the case thereafter continued for a number of days and was ultimately concluded on 1-2-1978, but no attempt was made on behalf of the petitioners to join the selected candidates as parties to the case in spite of pointed observations made from time to time to the non-maintainability of the applications on this ground,

(52.) Even if it be assumed, in the facts and circumstances of the case, that the writ applications cannot be held to be not maintainable, it cannot be denied that the selected candidates will be adversely affected, if the applications are allowed. The sessions in educational institutions in Bihar are, unfortunately, starting late for the last several years and the position of the medical colleges is no better. However, the colleges other than the medical colleges started their classes for the current session several months back, and the first year classes of the medical colleges also have now started. Some of the students selected for admission have not been able to join due to the stay order passed in the present cases. I presume that they are still waiting for the judgment and it has not been said before us that any of them has taken admission in any other college. In these circumstances, I am of the view that the judicial discretion under Article 226 of the Constitution of India should be exercised in refusing to interfere in the present situation.

(53.) In view of what I have said above, no other question requires decision. But since my learned brothers have expressed their opinion on several points, I wish to indicate my views on some of them.

(54.) The general principle applicable to cases of reservation has been considered by Mr. Justice S. Sarwar Ali and I full agree with what he has said in paragraphs 2 to 13 of his judgment. My learned brother B. P. Sinha, J. has discussed the test which has to be applied for determining whether a particular group of persons or caste comes within the expression "backward classes" and I agree with what he has said on the point. I also agree with my learned brothers that the question whether the reservation made in the present case in favour of backward classes is valid or is illegal does not arise to be decided as the petitioners have failed to raise this point in the writ petition or by the further affidavits filed by them. After the State Government filed an affidavit on 13-1-1978 referring to the instruction dated 29-1-1975 making reservations and the case was referred to a Bench of five Judges, the petitioners if they chose, could have got their writ applications amended by specifically challenging the reservation in favour of the backward classes. In his reply, the learned Government Pleader placed the writ application as well as the other petitions and affidavits filed on behalf of the petitioners and submitted that since the question was not raised, the State Government was not attempting to justify the reservation in favour of the backward classes. I agree with the argument of the learned Government pleader. There is, therefore, no occasion to deal with this question, although it appears that if it had been raised by the petitioners, it would have been an important point demanding serious attention of the Bench.

(55.) On the question as to the nature of the allotment of 125 seats to girl students, I agree with the view taken by B. P. Sinha, J. that it is not a case of allocation of the seats at source. This allotment also must be held by way of reservation.

(56.) I further agree with the observations of my learned brother Sarwar Ali, J. in paragraphs 18 and 19 of his judgment.

(57.) The writ applications, however, must be dismissed, but without costs. Madan Mohan Prasad, J.

(58.) The petitioners are students who, having passed the examination of Intermediate in Science (I. Sc.) set for a competitive test examination for admission into the Medical college in Bihar. It appears that the Government of Bihar have a number of Medical Colleges some of which were earlier run by private institutions and were subsequently taken over by the State Government.

(59.) Briefly stated, the facts, as stated in C. W. J. 1753 of 1977 which was filed on 27-9-1977, are as follows. The total number of seats available in various Medical Colleges was 975. This was, however, reduced to 670. This is the first cause of grievance. Next, there are 43 seats reserved by the Governmerit for being available to persons from different Asian countries where proper facilities for medical education are not provided. This is said to be "cultural Reservations". Then there are reservations for Scheduled Castes, Scheduled Tribes and other educationally and socially backward classes, as also for women. The Pre-Medical Test aforesaid was to be held on the 3rd of July, 1977, but due to leakage of question it was postponed and held on the 7th of August 1977. There is strong and wide rumour that the same questions were set for the subsequent examination in August and that certain Coaching Institutes had taken advantage of the leakage of questions. There is a defect in the system of obtaining the results of such examinations which is said to be mechanised but actually it does not properly exclude the human factor which outweighs the mechanical device which is that code numbers are put on the answer books in place of roll numbers and then transferred to punch cards and de-coded after the computer has indicated a number, by human hands. As a result of the test held on the 7th of August, 1977, the results thereof were published on the 24th and 25th of September, 1977 in the newspapers. The result showed that the aforesaid list had been divided into different categories, namely, (1) General/Backward Class (income below Rs. 3,000/- per annum only, no other criterion having laid down for determining the backwardness), (2) Waiting List (probably indicating that "they may have to be kept waiting after interview in the event of all the seats being not filled up at the said interview)", (3) Merit list of Girl candidates, (4) Waiting list of Girl candidates, (5) Merit list of Scheduled castes and (6) Merit list of scheduled tribes. The total number of candidates selected for the purpose of interview was 525, which included 113 girls, 45 scheduled castes, 41 scheduled tribes and 34 backward classes. Besides them, there were 73 on the waiting list. There was no notification as to how many seats would be reserved for different categories, but the petitioners gathered that in addition to the aforesaid there were 43 seats called "Cultural Reservations", but these "Cultural Reservations" included also nominees of the Tata Industries and Coal Mines Welfare Organisation who had not appeared at this test examination. Thus, out of 670 seats, 375 are reserved and the remaining 295 alone are available to General candidates. This means that the reservation comes to 56%, which is illegal. The petitioners made certain representations to the Government in this respect but to no effect. That some of the Universities in Bihar had not yet published the result of the Intermediate Examination in science and yet such persons who had not passed the aforesaid examination have been selected at the interview. Further, some of those who had failed at the I. Sc. examination have also been selected. The result is that those who have passed the examination have been excluded by them. That in respect of scheduled castes and scheduled tribes the Indian Medical Council has provided that the marks secured by them to enable them to be selected for admission, which is 50% for general candidates, may be lowered to 45%, but the State Government are seeking to reduce it below the aforesaid percentage prescribed.

(60.) On the basis of the aforesaid allegations it has been submitted in the petition (1) that all the steps taken for selecting candidates for admission into . the medical colleges are illegal and mala fide, (2) that the list of selection is illegal and ultra vires, (3) that as published in the selections aforesaid are illegal, ultra vires, void and contravening Articles 14 and 15 of the Constitution, (4) that the selection of candidates who had failed is contrary to law, (5) that the reservations for candidates for Tata Industries and Coalfield Management are not warranted by law and (6) that the reduction in the number of seats is in contravention of the directive principles of the Constitution. In that view of the matter, the prayer for issuance of an appropriate writ for quashing the list of selected candidates (Annexure 1) and for a direction to act in accordance with the law and the constitution has been made.

(61.) By a supplementary affidavit filed on 30-9-1977 the petitioner stated that he had been able to obtain one copy of the question paper of the aforesaid examination which he produced. It was further stated that the system of examination is that the question paper is given to the candidate in the examination hall and he has to write out the answers against each question on the question paper itself and submit the question paper in the hall itself and no question paper can be taken out of the hall. By a second supplementary affidavit it was brought to the notice of the court that the interview Board was granting admit cards to the candidates and a prayer for an order of injunction was made but was refused.

(62.) In C. W. J. C. No. 1812 of 1977 which was filed a few days later than C W. J. C. 1753 of 1977 i.e., on 29-9-1977, the petitioners had annexed to their petition a copy of the alleged question paper of the aforesaid examination. The petition is, however identical to that mentioned above. In C. W. J. C. No. 2063 of 1977, which was filed on the 4th November, 1977, also the petition is identical to the others, but amongst the grounds it has been stated "that the reservations made of about 56% seats on various grounds are violative of and contravenes Article 14 of the Constitution and are not protected by Clauses 3 and 4 of Article 15 of the Constitution" and also "that there is no criteria laid down for backward classes and there is no rational basis for fixing the criteria in the list based on monthly income as that is not in consonance of Article 15 of the Constitution of India".

(63.) The respondents had filed a counter-affidavit priorto the admission of the writ petition, which was sworn by an Assistant in the office of the Principal of the Medical college, wherein it was mentioned that the total number of seats available is 627 (leaving out 43 cultural reservation); out of them 88 are reserved for scheduled castes, 56 for scheduled tribes, 63 for backward classes having an income of less than Rs. 3,000/- per annum and in case members of the scheduled castes and tribes are not available the remaining seats would be available to the general candidates. It was further stated that the Government while determining the backward classes had taken into consideration their social and educational backwardness as also their economic backwardness. In this respect also it is said that if the students belonging to backward classes compete for admission on their own merits, the corresponding number of seats are made available to the general class of students. In the present case, it was said that 34 students of the backward classes had competed on their merits and thus 29 alone have to be filled up on the basis of reservation; similarly, only 45 students of the scheduled castes and only 41 students of the scheduled tribes are available and thus the 43 seats of the scheduled castes and the 15 seats of the scheduled tribes would go to general candidates. Further, it was stated that in view of the requirement of a large number of lady doctors for posting in Government hospitals and dispensaries, and keeping in view that the number of lady doctors 1/5th of the cadre strength, the Government directed 125 seats, i. e. 1/5th of the total number to be filled up by girl candidates belonging to all classes. Thus, it was said that out of the total number of 627 seats in the present case only 45 are to be filled up by scheduled castes, 41 by scheduled tribes and 29 by backward classes, making a total of 115 seats and even if the earmarking of 125 seats for women were to be treated as reservations, it would make a total of 240 out of 627 and thus much below 50%. With regard to the remaining 43 cultural seats (670-627), it is said that 6 are meant for students from Nepal, 23 are available to the Government of India for students from foreign countries, Nagaland, Sikkim and Bhutan, the students to be nominated by the Government for State reasons. With regard to the remaining 14 seats it was stated that when the State took over some of the colleges at Jamshedpur and Dhanbad, they had no hospital facilities and the Tatas, the Coalmines Welfare Organisation and Lakshmi Narain Trust offered their hospitals on the condition and some nominees of each of them be admitted into the said colleges. In course of argument it was said that five nominees each were to be of Tisco and coalmines welfare organisation and four of the Lakshmi Narain Trust. It was next said that no student who had failed at the examination would be admitted, nor had they been admitted. It was also said that the Government had not taken any decision to reduce the qualifying marks for the scheduled castes and tribes below the one prescribed by the Indian Medical Council. The other allegations were also denied as incorrect. This very counter-affidavit was to be treated so in C. W. J. C. 1812 of 1977.

(64.) The respondents also filed a petition showing cause after the admission of the writ petition, on the affidavits of a section officer of the department of Health, Government of Bihar and, the Principal of the Patna Medical College, on the same lines as stated above. It was, however, mentioned further that even if all the seats are left open for admission to general candidates on merits and no reservations is made, even then the petitioners will not qualify for admission because on merit only students securing 85 marks or above could qualify for admission and the petitioners had not disclosed the marks obtained by them. It was also stated that the reduction in seats had been made on account of the recommendation of the Indian Medical Council as well as of a High Power committee and also because during the course of strike of junior doctors reduction in seats was demanded and conceded. It was denied that the same set of questions were set for the two examinations, or that any institution had taken any advantage thereof. The apprehension of mistake in the method of arriving at the result of the test was said to be baseless. Regarding the earmarking of seats for women it was said that if was on account of the requirement of the State Government and for special upliftment of women and in accordance with Article 15 (4) of the Constitution. It was stated that candidates selected after the lest for admission on merit are having 91% marks and above and the petitioners are not entitled to invoke UK jurisdiction of this court.

(65.) These led to several rejoinders and replies. The prospectus of the examination was produced by the petitioners along with a rejoinder and it was asserted that there was no mention of reservation for backward classes or for girl students in the prospectus and that no criterion had been laid down therein for backward class candidates nor the number allotted to them had been mentioned. It was said that the petitioners had not been able to obtain their marks sheets and "it is not possible for them to say what would happen if the seats were filled up purely on merits since the very foundation for the selection, i. e., those who got 91 marks had been selected, is itself false. A notice of a special examination in chemistry practical of I. Sc. for such students as had failed in the chemistry practical, was produced as an annexure as also the result showing those who had passed thereat and it was said that 38 students who had passed at the said examination have also been illegally selected. By a supplementary show cause petition the respondents pointed out that the petitioners had participated in the examination held in which they had not competed as they had not secured sufficient marks on merit and they are thus not entitled to maintain the writ application. It was said that the petitioners on the basis of their roll numbers as supplied by them had obtained marks as stated hereafter :--

Anil Kumar 76 marks Sandip Sen 78 marks. Jagdish Sinha 82 marks Prabash Kumar 33 marks Navin Sinha 33 marks Dinesh Kumar 93 marks Parwez Iqbal 77 marks Padmaraj Samarendra 92 marks. The respondents, however, do not know whether the roll numbers have been correctly supplied as they were not stated on affidavit. However, it appears that 753 candidates have secured more than 92 marks and 111 candidates have secured 92 marks, and that 570 have obtained more than 93 marks at the said examination and thus none of these petitioners could be selected on merit. A letter of the Department of Health of the Government of Bihar to the Principals of the Medical Colleges, dated 29-1-1975, was produced as an annexure saying that the State Government had decided that in the various medical colleges in the State 14% seats should be reserved for scheduled castes, 9% for scheduled tribes, 10% for backward classes and 20% for girls and the remaining 47% should be open to the general candidates and besides these, the reservation for the Government of India and the other States would remain as they were. Further, it says that if the candidates of scheduled castes and scheduled tribes are not available the seats would go to the general candidates. A reply was again given to this by the petitioners stating that this was undue and excessive reservations. Apart from other things it was also mentioned that the candidates for the cultural seats were not required to appear for the qualifying tests and were admitted without undergoing such tests. In a supplementary counter-affidavit filed by the respondents it was said that the special examination in chemistry practical was held under Regulation 16 of the Patna University Regulations read with Section 29 (2) of the Patna University Act. It was also pointed out that the Board of Principals of the Medical colleges is the final authority to decide about the test and admission of students to medical colleges and the Board had resolved to extend the date for submission of marks sheets by the candidates, which originally was the 23rd of July, 1977, until the last date of the interview. A resolution of the examination Board was also produced to show that the Board "taking into consideration the large number of failures in Chemistry practical (45 as compared to 4 last year) as also a sizeable number of hard cases" had decided that a special examination in Chemistry practical only, which should be optional, may be held and candidates who have failed in Chemistry practical may appear at this examination, if they so liked on payment of a fee of Rs. 25/-. The proceedings of the meeting of the Board of Principals were also produced to show that the last date for receiving the marks sheets had been decided to be relaxed.

(66.) On the basis of the aforesaid allegations, counsel for the petitioners have made out the following points :--

(i) The reduction of seats from 975 to 670 is violative of Article 39 of the Constitution. (ii) The reservations for backward classes and women and the cultural reservations are arbitrary and violative of Articles 14 and 15 of the Constitution. (iii) The test examination was void because of the leakage of question papers, unfair advantage obtained by some students and the device for competition of marks being defective. (iv) The result of the test is bad because of the selection of the candidates who had failed at the I. Sc. practical examination, candidates who had not submitted their marks sheets by the 23rd of July, 1977 as required by the prospectus, having been selected, and candidates having been admitted during the pendency of the writ application.

(67.) Counsel for the respondents, on the other hand, has contended (1) that the petitions are fit to be thrown out, firstly because even if there were no reservations, the petitioners could not have succeeded, and secondly because they have not impleaded the University, the students who have been selected and whose selection the petitioners challenge; (2) that the reservations in favour of backward classes and the indication of sources in the case of women and cultural seats are justified; and (3) that the test examination and the results were properly held and arrived at

(68.) The first question which I should like to discuss is with regard to the maintainability of the petitions. In all of them only the State of Bihar and the Principal of the Medical college of Patna have been impleaded as respondents. It is undisputed that 525 students have been selected for admission into the medical colleges and, as stated earlier, there being no stay order by this court, some of them have been admitted into the college and are studying. Again undisputedly 38 students who had failed at the I. Sc. Examination in Chemistry practical had appeared at a special examination held by the University and passed thereat and have been selected for admission. The question arises whether these students were necessary parties. It must be borne in mind that the challenge to the validity of the test at which they had appeared and which has created in them the right to be admitted to the colleges, or which has led to their admission, has been made. There is no gainsaying the fact that if we were to hold this test to be illegal all these persons are going to be affected as well as that they will lose their right to be admitted and tho.se who have already been admitted will forfeit their right to study in the Medical Colleges. The question is whether such a right or interest creates a right in such students to be represented. It is obvious that the interest of these 525 students is at a stake. It is equally obvious that the petitioners are challenging not only the validity of the test held but also the admissions of these students. It has been specifically stated that some of them have already been allowed to be admitted into the colleges in spite of the pendency of the writ proceeding and that such admissions are illegal on that account also. It is thus evident that they are necessary parties. It does not need to be said that these students have acquired a right enforceable at law. Once the authorities have found them fit to be admitted into the colleges, the right cannot be refused and these students could as well come into a court of law for enforcement of their legal right in one way or the other. Even so, those students who have already been admitted cannot be denied by the authorities their right to continue the studies. That also is a right enforceable at law. It is not necessary to point out the distinction between proper parties and necessary parties. There the right of an individual is being challenged and a decree or an order is being asked for which would directly affect him, there cannot be the least doubt that such person is a necessary party. In this case there is also a specific challenge against the legality of the selection of 38 students who had failed at the I. Sc. Examination but had passed as a result of the special examination in Chemistry practical. The validity of this examination and not only that, the selection of these 38 students as a result of their passing that examination has also been already and specifically challenged. I have not the slightest doubt in my mind that they were necessary parties.

(69.) During the pendency and hearing of these cases-- they were originally heard by a Division Bench and then by this Full Bench for several days -- the question had cropped up about the necessity of impleading these parties. The petitioners have not taken advantage thereof, and have refused to implead any of them. It is thus not open to the petitioners to say that for one reason or the other, they had no opportunity of doing so even during the pendency of the proceeding. In fact the petitioners ought to have done that in the very beginning. They were challenging the results published in the newspapers (Annexure 1) of 525 specified individuals bearing different roll numbers. They could have easily obtained the names of such candidates and impleaded them as parties. They also knew the names of the 38 candidates who had passed at the special examination in Chemistry practical as would appear from the result sheet produced by them.

(70.) The next point which must be noticed is that although the special examination in Chemistry practical conducted by the University has been challenged as illegal, the Patna University has not been impleaded. It is obvious that if this examination is held to be void or illegal, it affects the University as such as it does those 38 students who passed thereat. These were the only persons who were directly interested in supporting the validity of the said examination and yet they have not been impleaded. That not having been done, the question is whether the present application is maintainable.

(71.) Mr. B. C. Ghose, appearing for some of the petitioners and whose argument was adopted by Mr. S. C. Ghose, appearing for the others has contended that the present applications cannot be thrown out on the ground of absence of parties. Firstly it has been urged that no relief has been claimed as against the University and thus it is not a necessary party; secondly, that the students are also not necessary parties because if the entire procedure is vitiated, those who would suffer by it need not be impleaded; thirdly because no right had accrued to the students before filing of the petition. He has placed reliance on a decision of this Court in Arun Kumar v. State of Bihar ((1970) ILR 49 Pat 396) and in the case of A. Periakaruppan Chettiar v. State of Tamil Nadu (AIR 1971 SC 2085 ). I am unable to accept the contention of Mr. Ghose. With regard to the University it is obvious that the relief claimed is that the examination held by the University be declared to be void and illegal. The University is the statutory authority and conducts the examination by virtue of the rights granted to it by the Patna University Act and its Regulations. One of the proceedings of such a Body is sought to be challenged. I am not prepared to accept that this does not amount to asking for an order against the University. As I have already stated, it is not correct to say that the students had not acquired any right whatsoever prior to the filing of the writ application. They had been selected at the test and that, in my view, gave them a right enforceable at law. On the petitioners own admissions, some of the students had been admitted into the colleges during the pendency of the writ petitions. They had acquired a right to continue their studies in those colleges. It is not as simple as saying that they had acquired no legal right or legal interest.

71-A. There is no substance even in the contention that it is a case where an entire procedure is being challenged from beginning to end and, therefore, the persons who are to be affected thereby need not be impleaded. Here, as will appear from the facts stated, there are different proceedings which are being challenged, viz., the test examination conducted by the Medical Examination Board in which the University has no hand whatsoever and which is undoubtedly different from the proceeding, viz. the examination in Chemistry practical in which respect the Board has nothing to do and the only body concerned is the University. The petitioners are next challenging an order of State Government making reservations and are contending that if there had been no reservations for backward classes, women or those called cultural reservations, they would have been successful in being selected at the test in preference to the students who have been so selected. Obviously thus it is not one proceeding of any one body which is under challenge. Was it not within the rights of such students to show that even if all the premises contended by the petitioners be granted, their claims was still better than those of the petitioners Actually the petitioners are contending that they have been discriminated against vis-a-vis those students who have been selected. Was it not within the right of those selected to come up and show that there has been no discrimination whatsoever The argument is beyond my comprehension that in such circumstances neither the students nor the University were necessary parties or that no right had accrued to them.

71-B. In Arun Kumars case (supra) the petitioner had come up to this court for quashing an order of the State Govt. by which the number of seats in the Medical Colleges of Ranchi and Darbhanga had been fixed for students passing from the different universities in Bihar. The petitioner had contended that there were 180 seats in each of the two colleges and the number of candidates securing marks higher than the petitioner was less than the total number of seats at the two colleges and thus but for the Government orders fixing the number of seats for students passing from different universities, he would have been admitted. This order of Government had been issued after the petitioner had made his application for admission and it was, therefore, contended that this sudden change in the criteria affected his career because if he had known of those reservations earlier he might have applied to some other college. During the pendency of the writ application an application under Chapter XXIC, Rule 5 of the Patna High Court Rules had been filed by five persons for recalling an order of slay passed at the time of admission of the writ application. On behalf of these five persons Mr. B. C. Ghose appearing in that case had contended that they were applicants for admission into the first year M. B. B. S. course in Rajendra Medical College, Ranchi and neither they nor those who had got letters of admission had been made parties to the writ application and the application was accordingly not maintainable. The learned Judge repelled the contention on the following grounds :

"The writ petitioner is aggrieved by the order contained in Annexure 2, and if that order is held to be invalid, the authorities of the two colleges must proceed without being bound by the directions contained therein. It is not possible to hold that the writ petitioner should have made all the students who had applied for admission to the 1st year M. B. B. S. course in Rajendra Medical College, Ranchi, party respondents or even those who would be entitled to admission in this college under Annexure 2." Firstly I would like to show mat the, those against particular individuals saying that they had not passed at the examination of 1. Sc. or that they had no right to be selected because they had not submitted their mark-sheets within time or that they had no right to continue their studies because they had been admitted during the pendency of the applications etc.

(72.) I find support for the view which I have taken in tp1 his respect from other decisions of the Supreme Court itself. In the case of P. Raiendran v. State of Madras (AIR 1968 SC 1012 : 1968 (2) SCA 636) (a decision by five Judges, unlike Chettiars case (supra) decided by three Judges), a preliminary objection was raised on behalf of the respondents that the selected candidates whose number was in the neiahbourhood of 1100 were not included as parties and therefore the cases should be rejected on that ground alone. In that view of the matter the counsel for the petitioners had conceded that they would not press for quashing the selection and they, therefore, prayed "that the points raised may be decided for the future and the selection made this year may not be disturbed". In such circumstances the Court decided the points raised in the cases but did not disturb the selections made that year. If there were no necessity at all of impleading them as parties, the court could have very well held 10 and disturbed the selections in spite of a concession made by the counsel. It is well known that even if concessions are made by counsel wrongly, the Court is not bound to act thereon but decide the case on its merits. There are other cases where the Supreme Court and different High Courts, considering the necessity of impleading necessary parties, allowed the petitioners opportunity to remove the defect of parties (see the Hoshiarpur Azad Transporters (Pvt.) Ltd. v. State of Punjab (AIR 1961 Punj 374). Mandir Thakur Dawara, Dhuri v. State of Pepsu (AIR 1955 Pepsu 159), Devichand Moolchand v. Dhanraj Kantilal (AIR 1949 Mad 54) and Bimal Chand v. Chairman, Jaigunj Azimgunj Municipality (AIR 1954 Cal 285 )). In the circumstances of the present case, therefore, I am unable to accept the contention that neither the university nor the 38 students who were selected on the basis of their passing the special examination in chemistry practical nor the students selected at the competitive test were necessary parties at all.

(73.) As I have said earlier, in the present case the petitioners had ample opportunities of impleading them but they have refused to do so. The question thus arises whether the petitioners having refused to implead persons directly affected. It is obligatory on the part of the court to issue notice to them suo motu and remove the defect of parties. In my view it is not. Mr. B. C. Ghose has relied on Rule 5 of the Chapter XXIC of the Patna High Court Rules. . The aforesaid chapter deals with the rules for disposal of applications under Articles 226 and 227 of the Constitution of India. Rule 5 is as follows ;

"The notice of the application along with a copy of the application and annexures, if any shall be served on all persons directly affected and on such other persons as the court may direct: Provided that on the hearing of any such application, any person who desires to be beard in opposition and appears to the court to be a proper person to be heard shall be heard, notwithstanding that he has not been served with notice of the application and shall be liable to costs in the discretion of the court, if the order shall be made."

Reading the aforesaid rule, the first part appears to be laying down the rule that the notice shall be served on all persons directly affected. Is it for the Court to find out who are the persons directly affected and to serve notices on them or is it the duty of the petitioner to implead them and then it becomes obligatory on the part of the court to issue notices to such persons directly affected. Obviously, it follows from the rules that notices need not go to persons who are not directly affected. Therefore, if persons are impleaded as parties, even though they are not directly affected, notices may not be served on them. The rule, of course, gives the discretion to the court to have notices served on other persons as well. The rule also enables the court to hear a person who has not been served with a notice. The rule, in my view, does not lay down that a person directly affected need not be impleaded as a party or that it is for the court to find out the persons, other than those impleaded, who are going to be directly affected and to serve notices on them. The contention thus that there is no duty on the petitioners to implead persons directly affected, must be rejected.

(74.) In this connection Mr. Ghose further placed reliance on the rules in the Code of Civil Procedure and contended with vehemence, that the Civil Procedure Code applies to writ proceedings and, therefore, a writ application like a suit could not be dismissed only on the ground of non-joinder or mis-joinder. Behind this contention appears to be a reliance on Rule 9 of Order I of the Code of Civil Procedure. Rule 9 lays down :

"No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it : Provided that nothing in this rule shall apply to non-joinder of a necessary party."

The reliance on this rule is a misconceived because in view of the proviso the rule has no application to the case of a non-joinder of necessary party. Apart from that, the contention with regard to the application of the Code of Civil Procedure to writ application must also be rejected for the simple reason that by the Code of Civil Procedure Amending Act I of 1976, an explanation has been added to Section 141 of the Code which is as follows :

"In this section, the expression Proceeding includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution."

This amendment seems to have escaped the notice of the learned counsel and the contention is thus misconceived. For the reasons aforesaid, I hold that the petitioners are not entitled to get the reliefs prayed for in the iabsence of necessary parties who are going to be directly affected by the decision of this court in this matter. On this ground alone the petitions must be dismissed.

(75.) There is however another reason why these petitions must be dismissed. The respondents have taken the objection that these petitions are not maintainable--firstly because these petitioners had appeared at the test examination and failed to secure such marks as would have entitled them to be admitted, and secondly because, even if all the reservations and ear-makings of seats were to be set aside. the petitioners would not be admitted on merit because there were at least 570 candidates who had secured marks higher than all the petitioners, the best among them having secured 93 marks. As stated earlier, the respondents found out the marks allotted to the roll numbers which were alleged by the petitioners to be theirs. It may be stated here that the petitioners did not swear any affidavit to the statement of fact made by them regarding their roll numbers even though the attention of the petitioners had been drawn by the respondents that they had not disclosed on affidavit their roll numbers which was necessary to find out as to what were the marks secured by them. Therefore, the respondents were not sure whether the petitioners had given out their correct roll numbers. But assuming that they have correctly given them, the best among them had secured only 93 marks and there were 570 candidates who had secured much more than that, and in the absence of any reservation of any kind, the petitioners can in no circumstance be admitted on the basis of the marks obtained by them at the test examination. By a reply to a supplementary counter-affidavit of the respondents, the father of one of the petitioners in C. W. J. C. 1812 of 1977 stated that the petitioners did not accept that they had secured 33 marks. It would appear that Prabhas Kumar and Navin Sinha, both petitioners in that case, were stated to have obtained 33 marks. That is, however, immaterial, because except making, this denial, the petitioners have not produced their mark-sheets to contradict the statements by the respondents. What is material is that in respect of the marks obtained by all others the statements made by the respondents on affidavits have not been challenged nor has the statement to the effect that there are 570 candidates above them, been challenged. On these unchallenged facts, therefore, the question arises whether if at all the court directs the selections to be made on the basis of the marks secured at the test examination, any writ can effectively be issued so far as these petitioners are concerned. It has been stated on affidavit with regard to the petitioners who have obtained 77, 78, 76 and 33 marks that their position would be beyond 2080 and thus by no stretch of imagination they have any chance of admission on merit even if all the 670 seats are made available to general candidates. With regard to the candidates securing 92 and 93 marks, it is said that there raj, there are 753 above and 111 equal. With regard to petitioner Dinesh Kumar there are 570 candidates who have secured more than 93 marks and he can be admitted on the basis of the marks obtained by him only if there are more than 570 seats available to the general candidates out of the total number of 670.

(76.) It is thus obvious that the petitioners, other than Dinesh Kumar, have no chance at all of being admitted on the basis of the marks obtained by them at the test examination, even if there were no reservations for any class at all, unless the examination itself is held to be vitiated and a fresh examination is directed. Their petition cannot thus succeed otherwise. Petitioner Dinesh Kumar alone has some chance even if the examination be held not to be vitiated in case he can successfully challenge the reservations so as to make 571 seats available to students of general class.

(77.) That brings me to the question as to whether the test examination was, for any reason, vitiated. In this connection, as stated earlier, what the petitioners have alleged are (1) that there is a widespread rumour that the questions had leaked out and that coaching institutes and others had taken advantage of the same. There is no material produced by the petitioners to support the aforesaid statement of facts which has been controverted by the respondents. In this connection a question paper alleged to have been set for the Examination held in August, 1977, bas been produced. Further it is said that the same question paper had been set for the examination in July. It must be borne in mind in this respect that it is said that the practice is that the question papers are distributed in the hall, answers are written thereon and returned to the examination authorities. Assuming that this question paper was meant for both the examinations, the petitioners have not disclosed the source from which they have been able to obtain this. If the matter is treated on the ground of preponderance of probabilities, it is obvious that this could not have been the question paper which had been obtained earlier than the examination due to leakage in transit. It is said by the petitioners themselves that the candidates had written out answers thereon. If that be so, it could not have been done before the examination. If the question paper had been a blank one, one could have a suspicion that it could have been obtained prior to the examination. There is also no knowing if this very question paper was set for the examination proposed to be held in July. It seems difficult to accept, assuming that there had been leakage of questions and consequent postponement of the examination from July to August that the authorities would allow the same question papers to be used for the examination held in August. Further the petitioners did not call upon the respondents to produce the question papers which were set at the examination in August or the one set for the earlier examination in order to be able to show that the same questions were set at both the examinations. Next, on the statement of the petitioners themselves the question papers bave been correctly answered. If that be so, no student who could answer the questions correctly would leave the examination hall along with the question paper and thus allow himself to fail at the examination rather than pass at it. The circumstances thus clearly rule out the allegation that this is one of the question papers which had been obtained by somebody on account of leakage. In this respect the petitioners allegations are that some question papers had been lost during transit of the packets containing the question papers to Ranchi. As I have said above, if that were so, this question paper would not have contained answers. There is no statement on affidavit that the answers were written by anyone subsequently and that it was blank when obtained. Obviously, therefore, it is a question paper used at the examination and not obtained prior to the examination. There is thus no substance in this contention.

(78.) The second allegation in this respect is that the mechanical device is not foolproof and human factors outweigh the correctness of the results. It is said that code numbers are put on answer books in place of the roll numbers and they are transferred to the punch cards and they are de-coded by human hands after the computer has indicated the numbers. This by itself would not prove that whatever device has been used must be considered to be incorrect and ineffective. Supposing the de-coding is done by human being, unless it is shown that anybody had acted mala fide in this respect, the system adopted to find out the result of the examination cannot be thrown out as defective. After all, examinations used to be held all over the world, answers books were examined by human beings and marks also given by human beings. A human being is also likely to err, but that alone is not sufficient for holding, unless an error is pointed out, that the system is wrong. Even so, where mechanised device has been used in part for the purpose of keeping the roll number secret in order to exclude the possibilities of partiality, only because a part of the process is done by human hands, the system as a whole cannot be said to be one which would bring out wrong results. The petitioners have not even given illustrations to show that the mechanical device has resulted in wrong results on any occasion. How are we to assume then that the system itself is entirely bad and for that reason the result published in the present case must be held to be bad If there be any defect in the system and improvement is required, the authorities holding the examination may think of making such improvements, but the vague apprehen-sion expressed by the petitioners by itself cannot entitle a court to hold that the system is calculated to bring out wrong results. This contention also must, therefore, be held to be untenable.

(79.) The test examination has been assailed on some other grounds also. Firstly it is said that the prospectus required candidates to submit their mark-sheets by 23rd of July. 1977, but those submitting marks even after that date were allowed to appear at the test. Mr. Ghose has said that the prospectus issued to the students had the effect of law which could not be violated by the authorities holding the examination. The argument is misconceived. A prospectus issued by any educational institution is merely a document giving information and directions to candidates who wish to apply. It is not a document of title nor an instrument of law which creates rights to the intending candidates. Besides that, as will be apparent, originally the examination was to be held on the 3rd of July, 1977. Keeping that in view the prospectus required applications to be submitted by the 6th of June and marks-sheets to be submitted by 23rd of July, 1977. Since the results of most of the Universities in Bihar had not been published, the said date for filing of the marks-sheets had been fixed and the intending candidates were intended to be allowed to appear at the examination on the 3rd July, 1977. As has been mentioned earlier, the Board of principals had extended this date until the last date of the interview. According to Mr. Ghose it was a mandatory provision that the marks-sheets should be produced latest by the 23rd of July, 1977. This argument has merely to be mentioned in order to be rejected. It has also been urged that the Board of Principals had no right to extend the date of submitting the marks-sheets. It has been stated on behalf of the respondents that the Board of Principals of all medical colleges in Bihar was the final authority in regard to test and admission of students and the Principal of the Patna Medical College was its Convenor and it was this Board which had decided to extend the date of submission of the marks-sheets. I do not see any reason why the Board which is the final authority in this connection could not extend the date. The contention in this respect also thus is, on its very face, untenable.

(80.) Another ground of attack is that students who had not passed at the I. Sc. having failed in Chemistry practical, were allowed to appear at the test examination and thus the examination was vitiated. This argument has also no foundation. The respondents have produced the resolution of the Examination Board of the Patna University by which the Board had decided to hold a special examination in chemistry practical. It appears therefrom that the Board took into consideration the large number of failure in Chemistry practical, which was in the relevant year 45 as compared to 4 in the previous year, as also the sizeable number of hard cases and on these grounds, it had decided to hold a special examination in Chemistry practical. The aforesaid resolution is said to have been passed in pursuance of the powers given to the Board by Regulation 16 of Chap. IV of die Patna University Regulations read with Section 29 (2) of the Patna University Act. Section 29 (2) of the Act aforesaid is as follows :

"29. (2). The examinations Board shall ren der advice to the Vice-Chancellor on conduct of examination and appointment of exa miners, setting and moderating question papers, preparation, moderation and publica tion of examination results, submission of re port of such examination results to the Aca demic Council and generally regulating the methods of improvement in the procedure of correct evaluation of achievement of stu- dents and the Vice-Chancellor shall be com petent to take final decision : Provided that the Vice-Chancellor shall appoint the question setters and examiners from the panel of names submitted by the Examination Board." Regulation 16 aforesaid is as follows:

"If it is proved to the satisfaction of the Examination Board that the questions in any subject are such as candidates could not reasonably be expected to answer within the time allotted or have not been fairly distributed over the whole course in that subject or do not conform to the regulations laid down for the examination in that subject, of show a marked change of standard, or that from any other cause injustice has been or is likely to be done, the Examination Board shall issue such directions as may be necessary to remedy or prevent such injustice and shall inform the Board of Moderators concerned of the action taken"

In my view, it is thus obvious that it was within the jurisdiction of the Examination Board to take into consideration the aforesaid reasons and decide to hold a special examination. In this connection it was urged that Chemistry practical, being a part of the subject, could not be treated as a subject and, therefore, examination could not be held in part of a subject. Any layman can see the. difference between theoretical and practical examinations. It is true that the practical is a part of the subject. If, however, the Board had the authority to have a fresh examination in the subject, it must be deemed to have the authority to hold an examination also for part of a subject. In the absence of any rule or regulation prohibiting them from doing so, it cannot be said that if their powers were wider they could not be exercised within the smaller sector. That exhausts the grounds for attack on the examination held,

(81.) In the result, I find no good ground for holding that the test examination held for selection of candidates in the present case is vitiated on account of any reason alleged,

(82.) That brings me to the question of reservations. As will appear from the writ petitions, originally the petitioners stated their grievance in this respect to be that the reservation taken as a whole amounted to 56% which was not permissible and secondly that the reservations for the Tata Industries and Coalmines Welfare Organisation and cultural reservations were unwarranted by law. There was no prayer in the writ petitions and there is none even today for holding that the reservations in favour of the scheduled caste and tribes or backward classes were improper or unwarranted. All that was mentioned in the writ petition with regard to the backward classes was in the description of the different categories in which the aforesaid result of test had been divided. While enumerating the first category of backward classes it was merely stated :

"(1) General/Backward Class (Income below Rs. 3,000/- per annum, indicating thereby that the backward class would be those persons whose income is below Rs. 3,000/- only No other criterion has been laid down for determining the backwardness."

In C. W. J. C. No. 2063 of 1977, however, at stated earlier, it was stated that "there is no criteria laid down for backward classes and there is no rational basis for fixing the criteria in the light based on monthly income as that is not in consonance of Art 15 of the Constitution of India". Still even in this petition there was no prayer for quashing any order of Government laying down the list of backward classes on the ground of improper or irrational classification. As I have stated earlier, the Government order was produced in the form of annexure by the respondents. Still, there never was any amendment of the writ petition made asking the court to quash that order. It was not even contended during the course of arguments that those who have been put in the list of backward classes were for any reason, not fit to be included therein. Even though it was said on behalf of the respondents that the fixation of the backward classes has been made on the grounds of social, cultural and economic considerations, there was no challenge by any of the writ petitioners that there was no material for coming to the conclusions aforesaid, nor were they called upon to produce materials in support of the Government decision. As will appear, what was pointed out in the writ petition, was that the criterion of monthly income was not a rational basis. It is well settled that no new ground of attack can be made without amending the writ petition (see Sivadev Singh v. State of Bihar, AIR 1963 Pat 201 ). In such a situation we are not called upon to hold that the list of backward classes prepared by the State of Bihar and produced in this court was illegal, improper and fit to be quashed.

(83.) The limited question thus which, upon the pleadings, arises is whether the classification of the backward classes limiting it to such persons whose parents have an income of less than Rs. 3,000/- per annum, is legal and proper. The question of criteria for determining backward classes came up for consideration before the Supreme Court. In the case of State of Andhra Pradesh v. P. Sagar (AIR 1968 SC 1379 ). In that case it was held that caste alone is no basis to determine backwardness; while determining a class caste cannot be excluded altogether; backwardness must be social and economic and similar to that of scheduled castes and tribes. Long before this in the case of State of Madras v. Smt. Champakam Dorairajan (AIR 1951 SC 226 ) tbe same question had come up for consideration and then: Lordships had held that social and educational backwardness must be tbe determining factor In the case of M. R. Balaji v. State of Mysore (AIR 1963 SC 649 ) again the Supreme Court held that caste cannot be the sole basil for determination of a backward class. In the case of Triloki Nath v. State of Jammu and Kashmir (AIR 1969 SC 1 ) it was held again that caste alone could not be the determining test; it may, however, be that members of one caste may as a whole be backward taking into consideration the social, educational and cultural backwardness of such a caste as a whole. It is not necessary to multiply authorities for the propositions mentioned above. I would only mention the other directly relevant decisions. They are to be found in the cases of Minor P. Rajendran v. State of Madras (AIR 1968 SC 1012 ) and State of Uttar Pradesh v. Pradip Tandon (AIR 1975 SC 563 ) where the Supreme Court held the criteria for determining backwardness and said that the standard of living, the economic condition, the lack of educational facilities and the apathy for education etc. must be taken into consideration for determining backwardness of a class. In the case of State of Andhra Pradesh v. U. S. V. Balaram (AIR 1972 SC 1375 ) the Supreme Court held that the condition of the backward classes should be comparable to that of the scheduled castes and scheduled tribes; determining the backward class by caste name is not violative of Article 15 (4) of the Constitution. Thus, by now it is well settled that while determining the backwardness of a class the social, cultural, educational and even economic circumstances must be taken into consideration.

(84.) In the present case for the purposes of admission into the medical colleges the State Government have decided that seats should be reserved only for such socially, educationally backward classes as have an income of less than Rs. 3,000/- every year. It is obvious that the object is to provide medical education to students and the classification is for the purpose of making such education available even to those members of the backward classes as cannot on grounds of their economic backwardness afford it. There is thus a clear nexus between the object and the classification. In this connection, however it has been pointed out that this is carving out a smaller class from a bigger class which means carving out more backward from within the backward classes. In my view, even that is permissible. It is not discriminatory to other members of the backward classes if it is for a particular purpose that a reasonable classification is made out. The criteria for such classification must, however, have rational basis for separating a group within that class from the rest and that differentia must have nexus with the object of the classification. Obviously the object is to spread medical education and keeping in view the social, educational, cultural and economic condition of the backward classes the said object can be achieved only by making reservation for members of the backward classes and while determining such backward classes, it is open to the State Government to restrict the class to those having a particular annual income. In other words, it means only that the State Government has taken into consideration the economic condition of the class also while determining it. It is that which distinguish the class carved out from the rest and there can be no doubt that it is a reasonable, intelligible and just criterion for separating the smaller out of the bigger class. It may be that the backward class for other purposes may be a bigger class, but for the purpose of reservations in the Medical Colleges, in view of the economic condition, if only a smaller class having a certain monthly income is preferred, there is no discrimination whatsoever. I am supported in this view by the observations of. Mathew, J. In the case of State of Kerala v. N. M. Thomas (AIR 1976 SC 490 at p. 519 in para 108) to the following effect : "If there are intelligible differentia which separate a group from that class from the rest and that differentia have nexus with the subject of the classification, I see no objection to a further classification within a class."

The contention of the petitioners in this respect must, therefore, fail.

(85.) That brings me to the next ground of attack in respect of the cultural reservations. In the writ petitions the challenge was specifically made only to the reservations for the three institutions, namely, the Tatas, the Coalmines Welfare Organisation and the Lak-shmi Narain Trust It has been stated on behalf of the respondents that the reservation for their nominees was a condition precedent to their making available the facilities of their hospitals at Dhanbad and Jamshedpur which was necessary for the purpose of providing medical education through the medical colleges situated at those places and taken over by the State. It is quite obvious that if the State Government had not consented to the reservation aforesaid, the taking over of the medical colleges at those places would have been useless, for, it is well known that medical education cannot be given without affording the facilities of a hospital for the purpose of education and training of the students. It is thus for the very object of spreading medical education that these allotments had to be made. No valid objection can thus be made to it. In fact, these are not reservations but these seats, as stated by the respondents, are earmarked, to be filled up in a certain manner. It has been stated earlier that six such seats are earmarked for students from Nepal, 23 for foreign countries and for Nagaland, Sikkim and Bhutan to be nominated by the Central Government and 14 for the organisations which provided the hospital facilities. It is well settled that the indication of a source for filling up seats does not amount to reservation. The Government have a right to determine as to whether for State reasons, which may include reciprocal arrangements between different States, they should earmark any number of seats in such colleges as are run by them for foreigners or other groups of students. I would refer to the decisions in the case of D. N. Chan-chala v. State of Mysore (AIR 1971 SC 1762 ), Kumari Chitra Ghose v. Union of India (AIR 1970 SC 35 ) and State of Andhra Pra-desh v. U. S. V. Balaram (supra). In the last mentioned case of State of Andhra Pradesh the Supreme Court held that it is open to the State to prescribe the source from which the candidates are declared eligible for applying for admission to the medical college. In the case of D. N. Chanchala (supra) sixty seats had been set apart to be at the disposal of the State Government The Supreme Court held that "the Government is entitled to lay down sources from which selections for admission would be made" and that "a provision laying down such source is, strictly speaking, not a reservation. It is not a reservation as understood by Article 15 against which objection can be taken on the ground that it is excessive," In the case of Chitra Ghose (supra) also, the court held that the Government which bears the financial burden of running the medical colleges has the right to lay down the criteria for eligibility, and further that the Government cannot be denied the right to decide from what source the admission will be made. Their Lordships further said that that "if the sources are properly classified..... it is not for the courts to interfere with the manner and method of making the classification." As I have said, the specific challenge was only with regard to the three organisations yet during the course of argument the earmarking of 43 seats as a whole was assailed but it is for the same reasons that I have mentioned why the argument cannot be accepted either for a part of for the whole.

(86.) The next alleged reservation is in favour of women candidates. This is said to be a reservation not protected by Article 15 (4) of the Constitution. The question first arises whether it is a reservation for women or an earmarking of geats for them unlike reservation for backward classes or scheduled castes or tribes. In this connection it is relevant to state that the State stated in its very first counter-affidavit that it was only an indication of source keeping in view the States job requirements. In its show cause petition, it was sought to be justified also on the ground that even if it amounted to reservation it was protected under Article 15 (4). The Government order shows the reservations in favour of the scheduled castes and tribes and backward classes and at the same time for women. It was on this account said that the Government did not intend to indicate the source in the case of women, but made reservation as in the other cases aforesaid. In such circumstances the question arises, whether assuming this to be so, it is open to them to justify the same now as indication of a source. I do not see any reason why the State cannot do it. It may be that originally it had not occurred to them to mention the nature of the alleged reservation for women as a source. The matter relates, however, only to an interpretation of the nature of the act. The original intent alone cannot be the criterion for determining the same. Now that we are called upon to judge the validity thereof, it is fair that we must judge it, after considering all the interpretations that can be put upon the transaction. Now that we have to decide whether it is reservation or indication of a source, considering all the circumstances obtaining today we have to judge its validity. Today, upon the arguments and the materials produced, if it appears that it is merely earmarking of seats for women, we must hold it to be so. In this background, I will consider the question. Article 15 (1) prohibits discrimination on the grounds "only of.....sex.....". Clause (3) of the said article, however, enables the State to make special provision for women and children. Clause (4) further states that the State is not prevented from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and tribes. This is notwithstanding Article 15 or Art, 29 (2). Article 29 (2) does not refer to women. It has, however, been urged on behalf of the petitioners that the reservation in the present case for women is not covered by Articles 15 (3) and 15 (4). In the present case it has been urged on behalf of the State that in view of certain consideration 20% of the seats have been allotted to women without any restriction of caste or creed or backwardness of the class; the consideration being that there is need for women doctors in the State to run the hospitals and departments therein particularly for women, health and family planning centres etc. and that 1/5th of the cadre strength of doctors in the State Medical services is that of women and, therefore, it follows that the Government needs at feast 20% women doctors to fill up the seats earmarked for them in the Health services and with this end in view the State Government have allotted 20% or 125 seats for women. The question, therefore, arises as to what is the difference between a reservation and indication of a source. A reservation in the sense in which the word is used with regard to backward classes and scheduled tribes and castes, obviously means that particular tribes and castes and classes which are considered to be socially, economically and educationally backward have to be provided for. In my view, the reservations have to be made on account of that fact that they are so backward, that it is for the interest of the communities concerned keeping in view the object of social justice that reservation is made. Where, however, a source is indicated and seats are allotted they would not be, for the reason that the persons for whom the seats are earmarked should be educationally, socially of culturally backward and require protection. HE that Were so, it would amount to reservation, In view of the decisions of the Supreme Court, however, it is undoubtedly the right of the Government which runs the medical institutions to allot certain seats to certain persons on grounds other than social, educational or economical on cultural backwardness. The earmarking of seats in the present case for women is not on account of any need for women as such. It is to fulfill the needs of the State which runs the medical colleges and bears the expenses thereof. The distinction between indication of a source and reservation, to my mind, is that in one case it is the interest of the class for which reservations are made and that is the determining factor, whereas in the case of earmarking it is not the need of the students which dictates the earmarking of seats for them but it is the need of the State or some other valid consideration. To illustrate it, seats are allotted to foreign students, it is not on account of their need for protection that there is allotment. It is because the State wants to have reciprocal arrangement or for other reasons of State it is considered proper that the State should provide for citizens of another State to have education in this country. There are decisions of the Supreme Court categorising certain allotments as mere indication of sources and not reservations. My attention has, however, not been drawn to any decision where the distinction between "reservation" and "indication of source" has clearly been laid down. I have, however, ventured to express my opinion as above. In my view, therefore, in the present case it was the need of the State of having 20% doctors in order to be able to fill up the cadre and to be able to provide medical facilities for women patients in hospitals and other institutions, that the aforesaid earmarking has been done. I have thus the case of the State that these are not reservations like those for the backward classes and scheduled castes and tribes. Such allotment of seats for women cannot, therefore, be challenged as not coming within Article 15 (3) or violative of Article 15 (4). The criteria adopted for testing the validity of reservations in respect of) backward classes or scheduled castes and tribes cannot be employed for testing the validity of allotment of seats. I would accordingly repeal the argument Thus, these allotments cannot be challenged.

(87.) In view of what I have said above, it is clear that the petitioners have not succeeded in challenging successfully the reservations for backward classes or the cultural reservations or the allotment of seats to women. As I have said earlier, they did not challenge at all the reservations in favour of scheduled. castes and tribes.

(88.) Assuming, however, that the reservations in favour of the backward classes, the cultural reservations and the allotment of seats to women are bad, still it cannot be lost sight of that the petitioners do not challenge the reservation for scheduled castes and tribes. These reservations, as stated earlier, are 14% for the scheduled castes and 9% for the tribes. They make a total of 23%. These reservations must be taken to be good. Thus, out of the total number of 670 seats. 23% thereof, which would be roughly 155 seats, have been validly reversed. The total number of seats reserved upon the statement of the parties is, however, 88 for the scheduled castes and 56 for scheduled tribes. If that be relied upon, a total number of 144 seats are reserved for them. Thus the seats which remain to be filled up, if there are no reservation for anyone other than members of the scheduled castes and tribes, are only 526. To go back thus to the point with regard to the claim of the petitioners, it is obvious that even if their entire allegation be accepted and only the reservation in favour of scheduled castes and tribes, which is unchallenged, is accepted, none of these petitioners would be able to qualify for being selected even if all the seats, barring these 144, were left open for general candidates. The reason is, as I have said earlier, that there are 570 persons who sat at the test and have obtained marks higher than the petitioner who has obtained the highest among them, namely, 93 marks. Upon their own case thus, and upon the unco ntr over ted statement with regard to the marks obtained by them, it is quite obvious that the petitioners do not have a right to maintain these writ applications, for, assuming everything in their favour they have no chances at all of being taken in and the writ if issued would thus be infructuous. In this connection I must point out that the finding that the examination was not vitiated in any manner is a premise for the aforesaid finding.

(89.) That brings me again to the challenge which was made originally, namely, that the total reservations come to 56% which violates the maximum laid down in the decision of the Supreme Court in the case of M. R. Balaji (supra). According to the State the total reservations came to 53% and that is what appears from the Government order already referred to earlier. The slight distinction between the two is, however, immaterial. If as I have held above, the cultural reservations and the earmarking of seats for women are allotments and indication of sources from which the seats are to be filled up, they must be excluded in calculating the percentage of reservation from the backward classes and scheduled castes which comes to only 33%. The question of their being beyond 50% does not arise. The question was agitated at the Bar as to whether the limit of 50% laid down in the case of M. R. Balaji (supra) was the maximum limit or not. It is not necessary for me to express any opinion on that question for the simple reason that in view of the findings in the present case the reservations amount to only 33% and no more.

(90.) That brings me to the last point with regard to the reduction of seals from 975 to 670. This has been challenged on the ground that it is violative of Article 39 of the Constitution. It is well known that the directive principles contained in the Constitution are not enforceable at law. Apart from that, the point has to be considered in the background of the circumstances of a case, there being no hard and fast rule laid down anywhere that the number of seats cannot be reduced. In the present case the State Government have reduced the number in accordance with the recommendations of a High Power Committee and of the Indian Medical Council. The Government run the institutions. The Government have thus the right to determine how many students can be given medical education and trained. The Government have also to determine how many students they can afford to educate in their institutions. While fixing the number of seats in the medical colleges in the State the Government have thus to keep in mind and to be dictated by different kinds of relevant considerations. It is difficult for me to understand how when a Government decides upon a total number of seats in a medical college, it can be said to be violative of Article 39 of the Constitution. All that the aforesaid article does is to lay down certain principles of policy to be followed by the State, It is, however, obvious that the principles are to be followed to the extent the State Exchequer or the reasons of State would permit. During the course of argument counsel for the petitioners could not aay anything concrete as to why the Government did not have the right to change its policy with regard to the number of seats to be made available to students within the State. It was urged by Mr. Ghose in this connection that Article 19 (1) (g) of the Constitution guaranteed the right to carry on a profession of ones choice and the curtailment of such a right, by reducing the number of seats available is a violation of such a right. The argument is obviously untenable. It would be plausible only if it be held that a citizen has a right, enforceable at law, to demand from the State that tt shall make provision for the entile population of the country to be educated for each profession. It cannot so be held without being absurd. It would mean that there should be arts colleges, science colleges, medical colleges etc. having unlimited seats and unlimited provisions for education of an unfimited number of students for it is not known what percentage of students would like one profession or the other. If that be not so. then the question as to how many persons the State can provide for, is a matter which rests with their discretion -- of course the discretion must be exercised justly and fairly. In the instant case, the State came out with good reasons, and they remain uncontroverted. It is not said that it was done with any mala fide. In the circumstances aforesaid, the Government had the right to determine whether the medical colleges should have 975 seats or 670. It cannot thus, by any stretch of imagination, be said to violate Article 19 (1) (g) or Article 14 of the Constitution. The argument in this regard if thus untenable,

(91.) In the result, I would dismiss all the three applications. In the circumstances of the case, however, I would make no order as to costs.