K. Subba Rao, C.J.

1. This is an application under Article 226 of the Constitution of India to issue a writ of certiorari or other appropriate writ calling for the records relating to the selection of medical students from region No. 1 of the former Telangana area, to set aside the selections illegally made and to order that fresh selections be made according to law.

2. The petitioner claims to belong to Munnuru Kapu community, which is one of the backward classes in the State. He passed the B.Sc. examination from the Osmania University Science College, Hyderabad in the year 1956 with Zoology main and Botany and Chemistry as subsidiaries. In the group, he secured 57.3 per cent of the marks in the final examination. He applied for admission into the Medical College. He was interviewed but was not selected though his name was put in the first waiting list. Claiming that his fundamental right guaranteed under Article 29 (2) of the Constitution has been violated, he filed the application for the aforesaid relief.

3. The facts pertaining to the selection have been stated in the counter-affidavit filed on behalf of the State. Under the scheme of selection propounded by the State, the total number of seats available both in the Osmania and the Gandhi Medical Colleges was 150. Of these, five seats were allotted to students under the Colombo Plan Cultural Scholarships etc., and of the remaining 145 seats, 15 per cent were allotted to Karnataka, 10 per cent to Marathwada, 30 per cent to women, 15 per cent to backward classes, 15 per cent to scheduled castes and the remaining to candidates under the general pool.

Under this arrangement, the total number of seats available to the Telangana candidates was 110 excluding the reservations. This was divided between regions 1 and 2 on population basis. The total number of seats which became available for region No. 1 was 13, 10 for boys and 3 for girls. The said 13 seats had been distributed as follows :

Boys (General) ... ... 6

Boys (Backward classes) ... 2

Boys (Scheduled castes) ... 2

Girls (General) ... ... 1

Girls (Backward classes) ... 1

Girls (Scheduled castes) ... 1

13

4. The marks of the last candidate in the Boys (General) category was 62.5 per cent and that in the boys (backward classes) category 60.2 per cent. The marks secured by the single backward class-girl candidate was 62.1 per cent. The boys, who competed for the seat reserved for the backward classes, secured the following marks :

1. K. Manohar 60.2%

2. Syed Rahamat Hussain 60.2%

3. Mohd. Bazlullah 57.7%

4. Puppala Sudarsan (Petitioner) 57.3%

The aforesaid facts are not denied.

5. Learned counsel for the petitioner contends that, if Manohar had been allowed to compete for the general pool, the petitioner would have got the seat under reservation for students of backward classes and therefore the selections made rejecting his claims violated his fundamental right under Article 29 (2) of the Constitution of India.

6. From the aforesaid facts, it is clear that even if Manohar was allowed to compete for the general pool, the petitioner would not have secured a seat, for two other boys belonging to backward classes secured more marks than what the petitioner got. But it is said that one of the other two was allotted to the Guntur College and, therefore, the petitioner would have been selected in his place.

7. We shall assume for the purpose of this application, though the supervening circumstances may not be of much relevance, that if Manohar did not compete for the reserved seat, the petitioner would have got in. The next question is whether the petitioners fundamental right has, in any way, been violated in this case.

8. The material parts of the relevant Articles may be read :

Article 29 : -

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 15 : -

(1) The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) * * * * *

(3) * * * * *

(4) Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes.

9. Construing the aforesaid provisions, a Division Bench of this Court of which one of us was a member, in Raghu Ramulu v. State of Andhra Pradesh, Writ Petn. No. 565 of 1957 : A.I.R. 1958 Andhra Pradesh 129, observed as follows :

"Every individual citizen as a citizen whether he belongs to the backward classes or not has a right to get admission into an educational institution of the kind mentioned in clause 2 of Article 29. The said fundamental right is abridged by the special provision made by the State for the advancement of any socially and educationally backward classes of citizens. If the provision is for the advancement of such classes, the fundamental right of a citizen is not infringed for his right itself is reduced by the provision. If the provision though it purports to be for the advancement of the backward classes in effect abridges their rights, the entire provision or that part of it which abridges their rights would be bad leaving untouched the fundamental right of every citizen whether he is a member of the backward classes or not."

10. In the light of these observations and, after considering the validity of the reservation made for backward classes, the Division Bench proceeded to state :

"Therefore, the effect of the provision instead of advancing the cause of the backward classes prevented some members of those classes from getting seats which they would have otherwise got if all the seats were brought under common pool.......... It is, therefore, not necessary to hold that the rule is bad but it would be enough to confine the operation of that rule to a case where the assumption underlying that rule applies and to hold that in other cases where the rule does not operate for the advancement of the backward classes, the fundamental right of a citizen of that class is unaffected by the provision.

We would suggest that the rule may be modified by substituting the words "minimum of 15 per cent" for the words "maximum of 15 per cent" or by any other appropriate way. It is not disputed that but for the provision, the names of the two petitioners would have been considered along with the applicants selected from the general pool and. if so considered, they would have been selected."

11. Learned Counsel for the petitioner contends that the said decision accepts the principle of selection of candidates in two compartments, one for the quota allotted for backward classes and the other for the general pool and, therefore, boys, belonging to the backward classes, who succeed in a competition held for the general pool, must be excluded from the selections in the reserved held. No such principle was accepted in the aforesaid decision.

It was there held that the rule, under the circumstances of that case, did not affect the fundamental right of a citizen belonging to the backward communities and that the petitioners therein having secured marks higher than the students selected from the general pool were directed to be admitted. It was not argued therein, that if all the boys belonging to the backward classes were taken in the general pool, the petitioners would have been excluded, while preserving the minimum guaranteed to backward classes students. We had no occasion therefore to decide therein the question whether the selection should be made in compartments.

12. That question arises in this case. The fundamental right of a citizen whether he belongs to a backward community or not is to secure admission in any educational institution maintained by the State without his being discriminated on grounds only of religion, race, caste, or any of them. The State may abridge this right by making a provision for the advancement of any socially and educationally backward class of citizens.

Presumably in exercise of that power, the State directed that a maximum of 15 per cent of the seats in each faculty should be reserved for candidates from backward classes. If the boys belonging to the backward classes by their merit secure more than 15 per cent of the seats in the general competition, this rule cannot be invoked to reject the boys above the prescribed number; for, in that event their fundamental right under Article 29 (2) would be violated.

On the other hand, if the selection is made in two different compartments in such a way that some boys belonging to the backward classes are allowed to compete for the general pool and some for the reserved seats, it would cause great hardship to the boys belonging to other communities. The rule, therefore, can be worked out in such a way as to protect the interests of students of the backward classes without at the same time causing prejudice to students of other communities.

This could be achieved by pooling all the candidates together and guaranteeing minimum seats for those belonging to the backward classes. To illustrate : If there are 100 applicants for selection to the Medical College, they would be arranged in the order of merit and even if more than 15 per cent of the candidates belonging to the backward classes could be selected on merit alone, they would be so selected.

If they fell short of that number, they would be selected to make up their number on the basis of merit inter se between them, though they got less marks than boys belonging to other communities. This process will protect students of backward classes without doing any injustice to the forward ones. The rule with the modification suggested by this Court in the earlier judgment does not compel selection in different compartments but only reserves some seats to the particular communities. In this view as the petitioner did not succeed in the general competition and as seats reserved for the backward classes for their protection were exhausted, no right of the petitioner is infringed.

13. The application fails and is dismissed with costs. Advocates fee Rs. 50/-.

Application dismissed.