Spl. C. Appln. No. 813 of 1966

18th October, 1966.

Petitioner Counsel: V.R. Manohar, M.B. Mor, V.G. Bhangde
Respondent Counsel: S.M. Hajarnavis, M.N. Phadke, M.W. Puranik, B.B. Ranade, S.M. Hajarnavis, C.S Dharmadhikari, M.N. Chandurkar

Cases Cited:
AIR 1963 SC649. 2. AIR 1964 SC 1823. 3. AIR 1961 Mys. 220.

JUDGMENT

JUDGMENT:- Abhyankar J.-As these two petitions under Article 226 of the Constitution raise one common question of considerable importance in the matter of admissions to Government educational institutions, we propose to dispose of both these petitions in common order.

2. Special Civil Application No. 813 of 1966 is at the instance of Shri Ashok Krishnarao Dhote, to his petition, the Dean, Medical College, Nagpur and the State of Maharashtra have been impleaded as respondents Nos. 1 and 2. Besides them, are also impleaded respondents Nos. 3, 4, 5 and 6, Shri S. W. Korpe, Shri M.V. Mahajan, Shri V.L. Bande and Shri V.Y. Dhote respectively, who, according to the petitioner, have been admitted to the Medical College at Nagpur after the petitioner was included in a provisional list of students eligible to be admitted. Petitioner Dhote's case is that he is a student belonging to the backward class. He passed B.Sc. Part I Examination of the Nagpur University in June 1966 which is a qualifying Examination making him eligible for admission for the First M. B. B. S. Course in the Medical College at Nagpur. The Medical College, Nagpur, is a Government institution run by the State of Maharashtra. Petitioner made an application in the prescribed form to respondent No. 1, viz the Dean, on June 30, 1966. Rules have been framed for regulating admissions to Medical Colleges run by the Government of Maharashtra. It will be necessary to refer to these rules in some detail later on. The total number of seats for which admission is to be made at Nagpur is 200. Some of these seats are reserved seats for Students belonging to different categories. Amongst such reservations, 11 seats are reserved for students belonging to other Backward Classes. In the application made by the petitioner he had disclosed that he belongs to Kunbi caste and is, therefore, a student belonging to other Backward Class. Though this statement as to the actual caste to which the petitioner belongs is not made in the petition, this statement was made at the Bar, and the fact is not now disputed on either side. The petitioner had also stated in column 5(iii) of the application that he seeks admission as a student belonging to the other Backward Class against seats reserved for students of that class. Petitioner had earned 53.90% of corrected percentage of marks according to the rules framed for admission. Respondent No. 1 put on the Notice Board of the College on July 15, 1966 lists of students who were eligible to be admitted. A copy of the list containing names of students classified in the category of 'other Backward Classes' is filed by this petitioner at Annexure "C". The list is headed as "Provisional Merit List of the candidates who have applied for admission to the Medical College, Nagpur, for the year 1966-67 subject to Verification of all the original certificates attached to the application form". Name of the petitioner appears in this list at serial No. 10.

3. Petitioner also stated that simultaneously he had made applications for admission to L.C.P.S. Course of the Government Medical School, to a course in B. Pharm. of the Nagpur University and also for B.Sc. Part II Course of the M.M. Mohta College of Science of the Nagpur University. Petitioner states that he was admitted in the Government Medical School for the L.C.P.S. Course as also for the B.Sc. Part II Course as well as for B. Pharm. Course. But because the petitioner's name was included in the provisional list of students to be admitted to the Medical College, when the petitioner received from the Principal, Government Medical School, Nagpur, a letter dated July 25, 1966 asking whether the petitioner intended to join the L.C.P.S. Course, the petitioner informed the Principal that he did not so wish to join the L.C.P.S. Course as his name was included in the list of students eligible for admission to the Medical College, Nagpur.

4. Respondents Nos. 3 to 6 had each of them passed qualifying examinations for admission to the Medical College in the first year at Nagpur and each of them had also made applications in the prescribed forms for such admission to the First M.B.B.S. Course, as required by rules. But each of these respondents Nos. 3 to 6 had stated in their applications for admission specifically that they did not claim admission to the First M.B.B.S. Course in the category of seats reserved for students of other Backward Classes. At the hearing, the learned counsel for respondents Nos. 1 and 2 had produced original applications of respondents Nos. 3 to 6 and stated that the community disclosed by each of these respondents Nos. 3 to 6 against column 5(i) of the application was as follows:

Respandent No.	Name	Caste disclosed in column 5(i)
3.	S.W. Korpe	Maratha Kunbi
4.	M.V. Mahajan	Kunbi
5.	V.L. Bonde	Kunbi
6.	V.Y. Dhote	Kunbi

A statement to the contrary in para. 8 of the petition that some of respondents Nos. 3 to 6 had stated that they do not belong to other Backward Classes is obviously incorrect. They had made the necessary disclosure of the community to which they belong in the information required to be given against column No. 5(i) in the application. But it is correct that they had not claimed benefit of being considered for admission to the seats reserved for 'other Backward Classes'. In further averments of para. 8 of the petition, the petitioner has given certain misapprehension as to the correct interpretation of the rules which might possibly have led respondents Nos. 3 to 6 not to indicate whether they desired admission to seats reserved for other Backward Classes.

5. We need not consider the averments in paras. 8, 9 and 10 attributing extraneous influence being brought by respondent No. 3 or others on his behalf to secure admission to the Medical College. All these adverse allegations have been strenuously denied and we do not think it is necessary to pursue the matter further at all. It is clear that if respondents Nos. 3 to 6 were entitled to be admitted on the basis of the percentage of corrected marks obtained by them to any of the seats reserved for students of other Backward Classes, their claim could not have been resisted by the petitioner, the petitioner himself admittedly having earned much lower percentage of marks than any of the respondents Nos. 3 to 6. The petitioner stated that he was frequently making enquiries about his admission to the Medical College and he was being told in the office of respondent No. 1 that there was some difficulty about his admission being finalised. Ultimately, the petitioner came to know on September 3, 1966, that respondent No. 3 was admitted, though his name, according to the petitioner was not included in the provisional merit list of candidates belonging to 'other Backward Classes'. He entered into correspondence with respondent No. 1 in the matter. It appears there was exchange of notices and finally the Dean informed the petitioner that he could not be admitted. Petitioner has made some grievance about not having been supplied copies of some documents. But at the hearing the learned counsel appearing for respondents Nos. 1 and 2 had made available all materials available and this grievance of the petitioner does not survive. Petitioner's grievance in this case is that the admission of respondents Nos. 3 to 6, who were not included in the provisional list initially, is illegal and contrary to rules and has affected prejudicially the claim of the petitioner to admission. Petitioner claims that the provisional list published on the Notice Board of the College on or about July 15, 1966, amounts to a representation by respondent No. 1 that the petitioner has been admitted subject to verification of the original certificates and if the petitioner could satisfactorily fulfil this condition, viz. due verification of his original certificates, petitioner's admission could not be revoked. In other words, the petitioner treats the provisional merit list as a notice of admission to the petitioner and once admitted, petitioner could not have been refused admission at a later stage. In the alternative, the petitioner has contended that the petitioner having acted to his prejudice in refusing admission to other courses, such as the L.C.P.S. Course or B. Pharm. Course or B.Sc. Part II Course, on the faith of this representation, respondents Nos. 1 and 2 are estopped from acting to the petitioner's prejudice now by declining to admit the petitioner.

6. Respondents Nos. 3 to 6 as well as respondent No. 1 have common defence to some extent. They claimed that what was put on Notice Board on July 15, 1966, is not a final list but only a provisional list; that nobody whose name was included in the list acquired any legal right in the sense that he was finally admitted in the Medical College for the First M.B.B.S. Course. The admission is governed by the procedure prescribed in rule 9 and nobody can claim to be admitted unless he or she received intimation from the office of respondent No. 1 under rule 9, either by telegram or by registered letter intimating of his or her admission and calling upon him or her to pay fees etc. They further point out that the list put on the Notice Board which was a provisional list was necessarily liable to alteration. Then it was pointed out that persons belonging to the same category to which the petitioner claims to belong, viz. other backward classes, had earned better percentage of corrected marks; their claims could not be ignored. If the petitioner in competition with such persons like respondents Nos. 3 to 6 could not show that he was better qualified, the petitioner could make no grievance.

7. The facts in Special Civil Application No. 876 of 1966 are slightly different. This petition is by two persons (1) Kumari Tara Thaware and (2) Shri Bhaurao Govind Ganar. Each of them claimed to belong to a Scheduled Caste, both being Mahars by caste. Petitioner No. 1 Thaware passed B.Sc. Part I Examination in October 1965 from Government Science College, Nagpur. Petitioner No. 2 Ganar passed the same examination in March-April 1966 from Mohta College of Science. Each of them made an application in the prescribed form before the prescribed date to respondent No. 1 for admission to the First M.B.B.S. Course in June 1966. Among the total number of seats which is 200, 24 seats are reserved for students belonging to the category of Scheduled Caste and Nava-Buddhas. As each of the petitioners belongs to Scheduled Caste, they claim to be entitled to be admitted to one of the seats reserved for that class. Each of the petitioners had mentioned against column 5(i) of their application that they belong to Scheduled Caste and a certificate to that effect was appended to their application. In column 5(iii), the petitioners had stated that they claim to be admitted against seats reserved for Scheduled Castes. Petitioner No. 1 had earned corrected percentage of 46. 47 and petitioner No. 2 had earned 47.04 per cent. of corrected marks as a result of the marks obtained by them in the qualifying examination. On July 19, 1966, respondent No. 1 published on the Notice Board of the College a provisional list of students to be admitted from different categories. The petitioners filed as Annexure "C", a copy of the Provisional Merit List of Students belonging to Scheduled Tribes, Vimukta Jatis, and Nomadic Tribes, Scheduled Castes and Nava-Buddhas, other Backward Classes and D. M. P., who had applied for admission to the Medical College, Nagpur for the year 1966-67, subject to verification of all the original certificates appended to the application Form. This list contained 24 names in the list of students belonging to Scheduled Castes and Nava-Buddhas and the name of petitioner No. 2 appeared at serial No. 18 and that of petitioner No. 1 at serial No. 20, in this list.

8. Respondents Nos. 3 to 7 of this petition are also students seeking admission to the First M.B.B.S. Course at the Medical College, Nagpur. They had passed the qualifying examination and had put in applications for admission. Each of these respondents had given certain information in columns 5(i) to 5(iii) of their application as regards their being member of one of the specified castes, the particulars of that caste or sub-caste and the statement whether they claim admission to the Government Medical College against the seat reserved for such backward class students. The names of these respondents Nos. 3 to 7 also appear in the provisional list Annexure 'C'. Respondent No. 3 Shri Vilhekar was at serial No. 4, respondent No. 4 Shri Jaiswal was at serial No. 9, respondent No. 5 Shri P. Sundarbabu was at serial No. 11, respondent No. 6 Shri Choudhary was at serial No. 12 and respondent No. 7 Shri Ramji Lanje was at serial No. 19, in this list. The petitioners further alleged that respondents Nos. 4, 6 and 7 had appended certificates as to their being students who are Nava-Buddhas and claimed admission on the basis of such certificates. The petitioners asserted that none of respondents Nos. 3 to 6 or 7 were members of the Scheduled Castes but they belonged to different castes which were not eligible for consideration in recruitment to the reserved seats reserved for members of the Scheduled Castes and Nava-Buddhas. The petitioners alleged that respondents Nos. 4, 6 and 7 embraced Buddhism only for the purpose of securing admission in the Medical College, Nagpur, in the hope that such conversion may permit them to be included in the reserved category of Scheduled Castes and Nava-Buddhas in spite of their belonging to other castes originally. Respondent No. 4, it was alleged, was a Kalar by caste i.e. caste Hindu. The petitioners filed documents in support of this averment. Respondent No. 6 Ashokkumar was a Darjee by caste and not a member of the Scheduled Caste. According to the petitioners, this would appear from the transfer certificate filed along with the admission. Respondent No. 7 Ramji Lanje belonged to Kohli caste and was not a member of the Scheduled Caste. This was clear from the certificate produced by him as having been converted as a Nava-Buddha from the General Secretary, Bharatiya Boudha Mahasabha. According to the petitioners, therefore, none of the three respondents Nos. 4, 6 and 7 could claim to be Nava-Buddhas as they never belonged to Scheduled Caste.

9. The petitioners had also alleged that respondents Nos. 3 and 5 were not members of the Scheduled Castes. At a late stage, respondents Nos. 3 and 5, however, have filed affidavits claiming that each of them does belong to the Scheduled Caste, respondent No. 3 claiming to belong to a caste of Khatik and respondent No. 5 claiming to belong to a caste of Mahar. This position is no longer disputed by the petitioners and, to that extent, the petition against respondents Nos. 3 and 5, who have obviously a higher percentage of corrected marks, does not survive.

10. Respondents Nos. 4, 6 and 7 have not disputed the position that each of them have recently converted themselves to Buddhist faith and that they did not belong to a Scheduled Caste prior to such conversion. Respondents Nos. 1 and 2 have now filed a statement to the effect that respondents Nos. 4, 6 and 7 having admitted in their returns that they did not belong to the Scheduled Caste before they embraced Buddhism, they were not eligible to be admitted to the seats reserved for students who belonged to Scheduled Castes or at one time belonged to Scheduled Caste before they embraced Buddhism. In view of these facts respondents Nos. 1 and 2 admitted that these three respondents, Nos. 4, 6 and 7, could not have been admitted and their admission is liable to be cancelled. This petition, therefore, will have to be disposed of on the footing that respondents Nos. 4, 6 and 7 have been wrongly admitted as Nava-Buddhas even though they did not belong to the Scheduled Castes prior to their conversion to Buddhism, and none of them could claim admission on the basis that they were Nava-Buddhas.

11. Now, the common question that arises for decision in these two petitions revolves round the interpretation of rules for admission made by the State Government to regulate admission to the Government Medical Colleges in Maharashtra. The Rules are fairly elaborate and the Form of Application for admission also calls in for exhaustive information. Rule 3(b) requires the applicant to produce several kinds of certificates, as many as 12, as enumerated in clause (b) of that rule. Item (11) under rule 3(b) states that students belonging to Scheduled Castes, Nava-Buddhas, Scheduled Tribes, Tribals outside specified areas in Vidarbha, Vimukta Jatis, Nomadic Tribes and other Backward Classes (Castewise) claiming admission as a member of such community or claiming exemption from payment of tuition fees on admission to a Medical College, must submit with their application certificate in support of their belonging to such classes (specifying caste and sub-caste) as recognised by the Government of Maharashtra from the Executive Magistrate, having jurisdiction over the areas to which the candidates belong. A note added in this rule says that the students should submit only copies of certificates duly attested by a responsible person, but the original certificates will have to be produced by the students before the Dean on admission to the College for verification. Certain conditions are common for all the students, such as age or physical fitness etc. Then follows rule 4 which is reproduced in extenso as different portions of this rule are required to be examined:

"4. (a) Selection of students amongst those who have applied for admissions to a Medical College, will be on the basis of merit as disclosed by the marks obtained in the Science subjects including additional paper on Physics at the qualifying examinations specified under rule 3(a) of a particular University in Maharashtra State, modified with respect to the candidate's college career including extra curricular activities such as Inter-collegiate sports, etc. Matriculation or S.S.C. examination record, number of attempts at, or delay between passing the Matriculation/S.S.C. and I.Sc. or equivalent examination.

Exemption.-Admission will be valid only during the year in which the students are selected for admission, except in the case of candidates who cannot be admitted being underage according to the rules prescribed by the respective Universities. Such candidates will, however, be considered eligible for admission to the Colleges concerned provided they apply for admission in the subsequent year when they first become eligible for admission on attaining the prescribed age. They will be admitted straight-away irrespective of their position on the merit list during that particular year. This concession will hold good only during the year in which the student first attains the requisite age. If the concession is not availed of in the particular year it will be lost.

(b) That as between candidates who have secured equal marks corrected asper rule 4(a) preference will be given to sons or daughters or dependents of persona who joined the Army, Navy or the Air Force. By 'dependent' is meant the husband or wife, as the case may be, of persons who joined the Army, Navy and Air Force, brothers and sisters of such persons if domiciled in Maharashtra State and solely dependent on them and children of deceased brother or sister, if domiciled in Maharashtra State and solely dependent on such persons.

Credit will be given if the student has represented and actually played in the tournament arranged by the University and/or State Government, during the College career and attained the standard of member of the team, captain of the team or Winner of the Championship in any of the games viz., Hockey, Football, Cricket, Tennis, Badminton, Basketball, Volleyball. Swimming, Hu-tu-tu, Kho-kho and Athletics.

These conditions will also govern the selection inter-se of candidates for reserved places at the Colleges.

(c) The percentage of seats reserved at each Medical College after excluding the seats reserved for the Government of India nominees will be as follows:

	Category		Percentage of reservation
1.	Schedule castes and Nav Buddhas..	..	12 per cent.
2.	Schedule Tribes, including Tribals outside specified areas in Vidarbha ..	..	8 per cent.
3.	Vimukta Jatis and Nomadic Tribes	..	4 per cent.
4.	Other Backward Classes ..	..	6 per cent.

The reservation as stated above is separate for each category and the seats remaining vacant in either category for want of applications, shall be treated as open seats and will not go to members of other category. The percentage mentioned above is inclusive of the number of students of the respective Backward Classes who get admission on merit also and will not be in addition thereto.

NOTE.-Koyana-affected students whose percentage of marks is not less than that of the last Backward Class student be admitted to the Medical College against the reserved seats for Backward Class. The seats that will be allotted to the Koyana-affected students should be treated as additional increase to reserved seats for Backward Class.

The definition of the Koyana-affected persons would be as given in Government Resolution, Education and Social Welfare Department, No. BPR 1064/13203/M, dated the 2nd December 1964.

(d) The following number of seats at Government Medical Colleges in Maharashtra State have provisionally been kept at the disposal of the Government of India for the admission of students from South Africa, Afganisthan, Burma, Siam, Indonesia, Kashmir and Nepal, etc.

			No. of seats reserved
(1)	Grant Medical College, Bombay.	.. 1	(For Colombo Plan Scholar to be nominated by Government of India).
		.. 9	(Students to be nominated by the Government of India under any of their schemes).
(2)	B.J. Medical College, Poona.	.. 2	-Do-	-Do-
(3)	Medical College, Nagpur.	.. 2	(For Indian student domiciled abroad)	To be nominated by the Government of India.
		.. 2	(For foreign student under Technical Co-operation of Colombo Plan).
(4)	Government Medical College, Aurangabad.	.. 1	-Do-	-Do-
	Total	.. 17

The admission of students against these seats will be governed according to the following conditions:

(1) that the students are eligible for admission to the Medical College and have secured certificate of eligibility from the University concerned and the migration certificate from their original University, (2) that the students are bona fide residents of these foreign States and have taken their preliminary studies at least up to Matriculation in those States and intended returning to those States for practice, (3) that they apply through the High Commissioner or Ambassador (consuls) of the States and their nominations are received in Bombay before the 26th May of the year and that they are ready to join at the opening of the term on or about 15th June in that year, (4) that the choice of individual students is left to the Government of India, (5) that the choice of the college to which they are to be admitted is left to the Government of Maharashtra, (6) that no hostel accommodation is guaranteed.

If any of these reserved seats are not utilised by the Government of India for the purposes specified above they will be treated as open general seats for admission of students of the Maharashtra State.

(e) Three seats are reserved at the Miraj Medical College, Miraj, for the nominees of the Miraj Medical Centre. These seats are open to students of any University in Maharashtra State subject to fulfilment of all rules of admission.

(f) Notwithstanding anything contained in rule 4(a), the Deans of all the Medical Colleges are authorised to admit students of the local universities to the seats lying vacant, if any, after 30 days from the date of opening of the Colleges. Such admissions should be strictly on the basis of merit from amongst the candidates on the waiting list."

Rule 9 requires the Dean, who is entrusted with the work of admissions in a particular college, to instruct the candidates selected for admission at once by telegram followed by a confirmatory letter in respect of students residing outside Head-quarter town of the College and in respect of local students residing at Head-quarter town of the College only by an express delivery letter, to remit the fees either in cash or by postal or telegraphic money-order to the Dean, from whom the letter of selection is issued, within 5 days. If the fees are not paid by the due date, the student runs the risk of losing his seat unless extension is given. Under rule 11, candidates applying for admission against the seats reserved for the communities mentioned in rule 4(c) have to note that only those candidates who belong to the castes and communities mentioned therein and who are ordinarily residents of the Maharashtra State, will be eligible for the concessions and if the statements made by any candidate is found to be false, his/her admission will be cancelled and he/she may be expelled from the College and prosecuted by Government if deemed necessary. This rule among others will indicate the necessity of taking scrupulous care in filling the Forms of applications in all respects and, in particular, regarding the caste or sub-caste of the community to which the student belongs, as the allocation of students is made on certain basis of reservations. Rule 16 also warns the applicants that if any information supplied by the candidate in connection with his admission is later on at any time found to be incorrect, it will result in the forfeiture of all fees paid and also in the dismissal of the student from the College if so decided by the authorities.

13. It will be seen that among the total number of maximum seats for which admission can be given which is 200, quite a large number of seats are reserved for students of different categories. Respondents Nos. 1 and 2 have annexed to the return the actual provisional list under different categories issued by respondent No. 1 on or about September 15 of this year. A perusal of this list shows that the recruitment to these seats would be as follows:

I.	Scheduled Tribes	..	..	..	..	14
II.	Vimukta Jatis and Nomadic Tribes		..	..	..	7
III.	Scheduled Castes and Nava-Buddhas		..	..	..	22
IV.	Other Backward Classes	..	..	..	..	11
V.	D.M.P.	..	..	..	..	15

The last category describes students who had obtained a local Diploma in Medical Practice and that not being a registerable qualification under the Indian Medical Councils Act, provision was made for their obtaining a medical degree by reservation of certain seats in the local Medical College. The number of seats has been fixed on the basis of percentage of reservation as given in rule 4 above. Certain seats are reserved at each of the Medical Colleges in Maharashtra to be filled on the nomination by the Government of India from among students from foreign countries. In the Medical College at Nagpur, two Indian students domiciled abroad and two foreign students under Technical Co-operation of Colombo Plan, are to be nominated by the Government of India. The important provision in rule 4(c) is that the reservation of seats is separate for each category and the seats remaining vacant in any category have, for want of applications, to be treated as open seats and will not go to members of other category. Further, the percentage mentioned above in respect of the reservation of seats is inclusive of the number of students of the respective Backward Classes who get admission on merit also and will not be in addition thereto. The interpretation of this provision was a subject of debate before us on part of each side.

14. In our opinion, it will be easier to dispose of the second petition i.e. Special Civil Application No. 876 of 1966, as it does not give rise to any disputed questions of fact any longer. It has not now been disputed on behalf of respondents Nos. 4, 6 and 7 that they would not come strictly in the category of Nava-Buddhas if it is held that only those persons can come under this category who, at one time, belonged to Scheduled Castes, but who have embraced Buddhism at a later date. It has been pleaded on their behalf that the rule as well as the information required to be supplied in column 5 of the application does not specifically say that only that person is a Nava-Buddha who has recently embraced Buddhism but who till then belonged to Scheduled Caste. In support of this contention it is pointed out that among the different categories enumerated in column 5(i), category (a) mentions "Schedule Castes" and category (c) mentions "Nav-Buddhas". Therefore, it is urged that these two categories of communities were considered by respondents Nos. 4, 6 and 7 or their guardians as referring to distinct categories and include persons like respondents Nos. 4, 6 and 7, who though belonging to castes other than Scheduled Castes till their conversion to Buddhism, had now become Buddhists. Now, this contention on behalf of respondents Nos. 4, 6 and 7 is wholly untenable. In rule 3(b)(11) it is specifically mentioned that the communities, castes or categories to which reference is made are such as are recognised by the Government of Maharashtra. The Government of Maharashtra had occasion to take a decision in this matter very early in 1950. But the latest position is to be found in the Hand-Book of General Circulars which was published by the Government of Maharashtra in 1962 and is an authentic document. At page 259 of this book, in Part III, General Circular No. 8, a note added at the end of the first paragraph shows that for purposes of clarification it is mentioned that the term "Backward Classes" in Maharashtra State will now include the following categories. Actually Nava-Buddha are included in the category of "Other Backward Classes", and it is stated that Other Backward Classes include "Nava-Buddha i.e. Scheduled Castes converted to Buddhism". If only a reference is made to this clarification, which was made long back by the Government, there could hardly be any reason to doubt that Nava-Buddhas mean Scheduled Castes converted to Buddhism and not just any one belonging to any caste whatever who has embraced Buddhism. In view of this clear position obtaining as to who a Nava-Buddha could be within the meaning of the rules governing admission to reserved seats in the educational institutions run by the Government and, in particular, the Medical Colleges, it is difficult to accept the contention of respondents Nos. 4, 6 and 7 that either they could entertain bona fide a belief that they were Nava-Buddhas within the meaning of this rule or that they acted under such belief. It must, therefore, be held that none of respondents Nos. 4, 6 or 7 was eligible for admisson to the reserved seats reserved for Other Backward Classes and, therefore, their admission could not have been based on the deliberately vague statement made by them in their applications. We will have occasion to deal a little further as to how these applications are required to be processed and scrutinised in order to implement the rules made by the Government for regulating admission to the Medical Colleges. We may, however, observe at this stage that the rules which recognize the principle of Article 15(4) of the Constitution cannot be so implemented or administered or given effect to as to nullify other clauses of Article 15 or Article 29 and, therefore, strict supervision, control and circumspection are required to be observed in implementing these rules.

15. Now, so far as the petitioners in Special Civil Application No. 876 of 1966 are concerned, even a casual glance at the provisional list regarding the filling of seats reserved for Scheduled Castes and Nava-Buddhas will show that respondents Nos. 4, 6 and 7, who are placed at serial Nos. 9, 12 and 19, could not have been included in this list at all. Respondents Nos. 8, 9, 10 and 11 are students admittedly belonging to the Scheduled Castes. They had respectively obtained 56.0 per cent , 47.04 per cent., 54.85 per cent. and 54.28 per cent. of corrected marks respectively. But none of them had indicated in column 5(iii) of their application that they wanted to be considered for admission to seats reserved for the Scheduled Castes. On that account they were not at all considered by respondent No 1 in preparing the provisional list of students to be admitted in the reserved class of Scheduled Castes and Nava-Buddhas. But when it was found that they could not be excluded on a reasonable interpretation of the rule when making final list of students to be admitted through the reserved seats, these four students have been admitted. Thus, though each of them may have obtained less marks than the lowest student considered eligible for admission in the general list, these four students have been admitted as they were eligible for inclusion in the list of students to be admitted in the reserved class. Petitioners Nos. 1 and 2 have been excluded on account of their having obtained corrected percentage of marks lower than respondents Nos. 4, 6 and 7. But inasmuch as respondents Nos. 4, 6 and 7 were not entitled to be admitted to any of the reserved seats in this category of Scheduled Castes and Nava-Buddhas, it is clear that the claims of petitioners Nos. 1 and 2 could not have been rejected. We must, therefore, hold that on a proper compilation of the list of students eligible for admission to the reserved seats in the category of Scheduled Castes and Nava-Buddhas on the basis of bona fide declaration of their caste and community, petitioners Nos. 1 and 2 were entitled to be admitted to the First M. B. B. S. Course in 1966. They had made applications in prescribed forms in proper time and if the rules were correctly applied and the information given by students like respondents Nos. 4, 6 or 7 was properly scrutinised, the claims of petitioners Nos. 1 and 2 could not have been rejected. Respondents Nos. 1 and 2 have filed at page 50 in Special Civil Application No. 813 of 1966, a list of Scheduled Castes and Nava-Buddhas who are eligible for inclusion in the provisional list. It is a list of 24 students, the total number of seats available being 22. Petitioner No. 1 Kum. Thaware is at serial No. 20 and petitioner No. 2 Ganar is at serial No. 18. Respondents Nos. 4, 6 and 7 are at a higher serial and if all these three have to be excluded, it means that 17 students, including petitioners Nos. 1 and 2 and four more, i.e. respondents Nos. 8 to 11, will make a list only of 21 students eligible for admission in this class. One more student can be taken if found eligible according to the corrected marks, in this category.

15. The petitioners in Special Civil Application No. 876 of 1966 have asked for the relief of a direction being given to respondent No. 1 to admit petitioners Nos. 1 and 2 to the First M. B. B. S. Course and have also prayed for quashing of the admission of respondents Nos. 3 to 11. So far as the quashing of the admission is concerned, we have held that respondents Nos. 3 and 5 and Nos. 8, 9, 10 and 11 were eligible for admission and have been properly admitted. We have also held that respondents Nos. 4, 6 and 7 were not eligible for admission to the seats reserved for Scheduled Castes and Nava-Buddhas Respondents Nos. 1 and 2 have made a statement that their (respondents Nos. 4, 6 and 7's) admission is liable to be cancelled and we have no doubt that necessary steps will be taken to cancel their admission. We also hold that on preparation of a proper list of students eligible for admission to the seats reserved for Scheduled Castes and Nava-Buddhas, petitioners Nos. 1 and 2 were entitled to be admitted and, having secured requisite number of corrected percentage of marks, could not have been refused admission in this category. In fact, names of both these petitioners appear in the provisional list and when it is now found that they were entitled to be included in the final list of students who could be properly admitted to the seats reserved for Scheduled Castes and Nava-Buddhas, there is no difficulty in respondent No. 1 confirming the admissions. It is, however, stated that there may be some difficulty in now passing an order of admission of petitioners Nos. 1 and 2 to the First M.B.B.S. Cours which is of a hyper-technical nature. The Nagpur University had fixed a date for admission of students. Originally that date was August 2, 1966, and had been extended by the appropriate authority to September 6, 1966. In the circumstances of this case, however, which disclose that respondents Nos. 4 6 and 7, who were not at all eligible for admission were admitted to the prejudice of the claims of petitioners Nos. 1 and 2, we have no doubt that if proper facts are laid before the authorities of the University by respondents Nos. 1 and 2 the permission, if at all necessary, will be forthcoming. As the University is not made a party to this petition, we do not think any other direction is necessary. We have no doubt that, looking to the justness of the cause of the petitioners, all the authorities concerned, including the University authorities, will see their way to restore the admission to the petitioners to which they were entitled.

16. As regards the claim of the petitioner in Special Civil Application No. 813 of 1966, it is now necessary to consider the scheme of admission of students as laid down by the State Government and the manner in which it is required to be implemented. Contention of the petitioner in this case is that respondents Nos. 3 to 6 either not having indicated that they seek admission to the reserved seats because they belong to other Backward community or having definitely stated that they do not desire to be considered for admission to the reserved seats on that basis, could not have been later admitted to the seats reserved for other Backward Classes to the prejudice of the claim of the petitioner who was included in the provisional list. In other words, what is contended is that respondents Nos. 3 to 6 having once exercised their option could not be allowed to go back on that option to the prejudice of the claim of the petitioner. It is urged that under the Rules there was an option to students belonging to these specified categories including students claiming to belong to other Backward Classes, whether to be considered for admission in the open seats or in the reserved seats; if a student belonging to the other Backward Class made his choice and wanted to be considered for admission in the open seats, then it was not permissible for such a student to claim at the same time that, in case he does not come in the open list, his claim to the seats reserved for other Backward Classes may also be considered. As we shall presently show, in our opinion, this contention is not well founded and cannot be accepted.

17. The normal rule for admission to educational institutions would be to regulate admission strictly on merits or the performance of the candidate at the qualifying examination. In addition to academic performance of the candidate, his merit in other fields of curricular activities or extra-curricular activities can be properly taken into consideration. In fact, the system of computing corrected percentage of marks which has been accepted in the rules made by the State Government, recognizes this salutary principle. As regards the academic performance of a candidate for admission, marks are added or subtracted according as the student passes at the first attempt or at subsequent attempts, or after greater interval than is necessary between the Matriculation and qualifying examination. Then marks are added if the candidate has represented and actually played in any tournament arranged by the University so that his sporting activity during his college career is given due recognition. In addition, if the candidate has served in the Indian Territorial Force or the Home Guards or the University Officers Training Course after passing S.S.C. Examination, he also earns some additional credits. Thus the test that is laid down is to judge the development of integrated personality of the candidate, emphasis, of course, naturally being on his academic performance.

18. Our Constitution, which recognizes principle of equality before the law and equality of opportunity both in its positive and negative aspects, enshrines these rights in Articles 14, 15 and 16 of the Constitution. In addition,a specific guarantee is also given in Article 29(2) of the Constitution so far as admission to educational institutions maintained by the State or receiving aid out of State funds is concerned. Article 15(1) contains the injunction in a positive form not to discriminate against a citizen on grounds only of religion, race, caste, sex, place of birth or any of them, and a similar injunction in the matter of admission to educational institutions is engrafted in Article 29(2) of the Constitution. But the Constitution has been amended in 1951 and sub-Article (4) of Article 15, has introduced what may be called an exception, to these fundamental rights of equality. That Article permits a State for making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. The Constitutional authority for reserving seats in the educational institutions for candidates belonging to any of these categories, viz. Scheduled Castes and Scheduled Tribes or socially and educationally backward classes is founded on this express power given by the Constitution to the State and can only be sustained and justified within the limits of that exception.

19. In our opinion, the principle of reservation can only be justified on the view that as at present constituted, our society has, amongst its various components, communities or castes which are socially and educationally backward and for whom it is necessary for the State to make special efforts to bring them in line with other communities who can be called, in a sense, advanced communities. But the basic idea in recognizing this principle is that at some point of time in future the Constitution itself envisages a gradual disappearance of the need for making any such reservations or such reservations becoming unnecessary or otiose on account of the communities for whose protection and advancement reservations had to be made have now reached a level of advancement and progress no longer needing any such protection or special treatment. That this alone could be the idea must be accepted in view of the fact that sub-Article (4) of Article 15 is a part and parcel of Article 15 which in no uncertain terms guarantees equality of treatment to all citizens irrespective of religion, race, caste or sex or place of birth, and the two provisions are necessarily required to be harmonized. It is not as if the Constitution makers intended that any community should be tempted to put a premium on backwardness for all time so that a claim may be made to reserved seats or opportunities in public service merely on the strength of their belonging to a particular caste or community. It is, therefore, necessary that in interpreting the rules made by the State Government for reservation of seats for admission to the educational institutions on the basis of social or educational backwardness, the governing principle enshrined in Article 15 is given effect to and implemented and not counteracted.

20. Rule 4 of the rules framed by the State Government makes two provisions which, in our opinion, recognize this principle in actual implementation of the State's policy. Firstly, it is provided that the reservation of seats is separate for each category and seats remaining vacant in any category for want of applications have to be treated as open seats and will not go to members of other categories. This means that if students belonging to a particular category do not come forth in sufficient number to qualify for admission to the reserved seats in that category, then the seats so remaining unfilled have to be added to the seats for admission in the open list.

21. The second provision is that the percentage of students belonging to different categories who are to be admitted to the reserved seats is inclusive of the students of that category who get admission on merit and not in addition thereto. This provision requires to be explained in some detail because it is on the interpretation of this clause that the petitioner in this case has founded his claim. According to the petitioner, the proper interpretation of the rule requires that claims of students belonging to a particular category and seeking admission to the seats reserved for that category have to be considered together and inter-se for determining the order in which they will be admitted to the seats reserved for that category. If a student does not desire to be considered for admission to this category, then he may take his chance in competition with other students in the open list. We do not think this contention is apposite vis-a-vis the rules and the principle on which the rules have been framed. On a proper interpretation of the rule, it is clear that the authority entitled to admit students is required to make one general list of all students claiming admission. By general list, we mean list of all students who have applied and who claim admission to the totality of seats for the First M.B.B.S. Course. Column 5(i) of the Form of Application enjoins on every applicant-student to disclose whether the applicant is a member of any of the following classes, viz. whether he belongs to (a) Scheduled Castes, (b) Scheduled Tribes including tribals outside specified areas in Vidarbha, (c) Nav-Buddhas (as understood), (d) Vimukta Jatis and Nomadic Tribes and (e) other Backward Classes. The form clearly enjoins on the applicant to say 'Yes' or 'No'. We must read this injunction as casting a positive duty on every applicant-student to disclose whether he does or does not belong to one or the other of the categories enumerated in this clause. A student who does not belong to any of the categories enumerated in this clause, cannot omit to disclose that information and if he does, to that extent, his application must be considered not only inaccurate but improper. The general list then has to be prepared in the order of corrected percentage of marks obtained by each candidate. Such a general list will at once disclose the number of candidates belonging to different categories mentioned in column 5(i) of the application. If it is found that requisite number of students belonging to a particular category have already qualified for admission in the open general list, no occasion will remain for admitting any other student of that category to a seat reserved for students of that category.

22. To take an example, let us assume 50 students belonging to the Scheduled Castes and Nava-Buddhas category have applied for admission in a given year. According to rules, 24 seats are reserved equal to 12 per cent. for students belonging to this category. If it is found that as many as 24 students of this category, who have applied, have already earned a sufficiently high percentage of corrected marks so as to come in by competition in the open list, no occasion would arise for making any further admission of any student belonging to this category from the remaining students belonging to this category, inasmuch as the maximum number of seats reserved for students in this category comes to be filled by students, no doubt, belonging to this category, but who have also had creditable performance to their credit.

On the other hand, an example may be taken where there may be occasion to admit students to this category partially. Assuming again 50 students belonging to the category of other Backward Classes have applied, the number of seats reserved for students of this category, according to the present rules is 12, at 6 per cent. If only 6 of these students belonging to the category of other Backward Classes have come in competition in the open list, then the Dean will be required in such a case to admit only 6 other students as the total number of reserved seats is 12 for the students belonging to other Backward Classes.

23. If, on the other hand, it happens that no student belonging to a particular category qualifies for inclusion in the open list on account of the low percentage of corrected marks, then all the seats reserved for students of this category will have to be filled from among the students who are eligible though none of them could compete for admission in the open list.

24. As, in our opinion, this is the correct interpretation of the rule, which is in consonance not only with the letter but also the spirit of the provisions in Article 15 (4) read with Article 29(2) of the Constitution, what respondent No. 1 has to consider at the time of making admission is, firstly, to verify whether an applicant is a student belonging to any of the specified categories mentioned in column 5 (i) and (ii) of the application. This necessarily implies a duty on each applicant to disclose whether he does or does not belong to any of the categories mentioned in this application. The reason for this requirement of disclosure of information is obvious. While it is necessary that no student belonging to any of the categories should be denied a fair opportunity of getting admission to the seats reserved for students of his category, the rule should not, at the same time, work to the detriment of all other students who have a right to come in by competition in the open list by an exaggerated proportion of students belonging to specified categories being admitted on account of misapplication of the rule. What the rule guarantees is a minimum number of seats in the total admissions to the first M.B.B.S. Course.

25. It must be remembered that every student who has a creditable performance qualifying him for admission has a right to have his claim considered on merits. When this right is restricted on account of the necessity of reservation of seats to students belonging to specified categories, nothing need be done which will in any manner or to any degree put in jeopardy the fair and equal chance of the generality of students eligible for admission in the open list by a devious interpretation of the rules. We have, therefore, come to the conclusion that on a proper interpretation of rules for admission framed by the State Government, the Dean is required to make, firstly, one general list compiled according to percentage of corrected marks earned by each applicant in order of merit. This list must also show against the names of each student whether or not the student belongs to categories specified in column 5(i). Thereafter the Dean will be required to find out how many of these candidates belonging to specified categories have come in the open list on account of their performance and earning the corrected percentage of marks. Excluding the number of such students if there is remaining any number of seats required to be filled to complete the quota of seats reserved for particular categories, the Dean will be required to make further admissions to this reserved class among the students belonging to this class in the order of merit from those who have not been admitted in the open list.

26. It is now, therefore, necessary to see whether the grievance of the petitioner in this case has any basis for complaint. The petitioner's contention is that he belongs to "Other Backward Classes". As the expression is some-what vague and not defined in the rules for admission, we have to find out from the Government resolutions as to who is eligible to be included in this category of other Backward Classes. We, therefore, asked the learned counsel appearing for respondents Nos. 1 and 2 to make available the Government resolutions or decisions, if any, in this connection. The Government has issued a circular in modification of their previous circular on October 1, 1962. This, we are given to understand, is founded on a Government resolution on the subject. These resolutions are to be found in the Hand-Book of General Circulars at page 259 and onwards. Paragraph 3 of the Circular states that for purposes of clarification it is mentioned that the term "Backward Classes" in Maharashtra State will now include the following categories:

(1)(2)	Scheduled CastesScheduled Tribes	....	As per the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956 as adopted for Maharashtra State vide Part VILA of the Seventh and Eighth Schedules of the Bombay Reorganisation Act, 1960.
(3)	Other Backward Classes which will include-
	(a) Nav Buddhas i.e. Scheduled Castes converted to Buddhism;
	(b) Tribals residing outside the specified areas of Vidarbha;
	(c) Nomadic Tribes(d) Vimukta Jatis		As per the Government Resolution, Education and Social Welfare Department, No. CBC. 1361-M, dated the 21st November, 1961.
	(e) Other Backward Classes based on caste.

(The category of Other Backward Classes based on caste in Maharashtra State has been abolished vide former Bombay Government Resolution, Labour and Social Welfare Department No. OBC. 1759-E, dated the 18th May 1959, and the same has been substituted by a new classification based on income according to which all persons whose annual income does not exceed Rs. 1,200/- are treated as Other Backward Classes. All major concessions available to the castewise Other Backward Classes have been discontinued vide the order referred to above. However, some concessions like reservation in Government services, reservation in educational institutions, grant of waste lands etc. were continued to them pending further consideration. Government has since decided that status quo should be maintained with reference to these concessions for the time being. The competent authorities are therefore, requested to issue Caste Certificates to the castewise Other Backward Classes also).

27. It will be seen that the category of 'Other Backward Classes' based on caste had got to be further defined. It was originally defined in 1959. That definition was substituted by a new classification based on income and it was derided that persons whose annual income did not exceed Rs. 1,200 may be treated as other Backward Classes. This naturally would have resulted in restricting the special reservation of admission to educational institutions only to Scheduled Castes, Scheduled Tribes, Nava-Buddhas i.e. Scheduled Castes converted to Buddhism, Tribals residing outside the specified areas of Vidarbha, Nomadic Tribes and Vimukta Jatis. The Government considered, however, that some concession like reservations in Government services or reservations in educational institutions or grant of waste lands were necessary to be continued communitywise to communities which could be classified as other Backward Classes. The Government, therefore, issued a list of all categories including the list of castes which would be considered in the other Backward Classes in the State of Maharashtra. The Government publication giving this list of Backward Classes in Maharashtra State is placed before us and that has a bearing in understanding and disposing of the contention of the petitioners. The List first describes Scheduled Castes for Maharashtra and this corresponds to Part VILA of the Seventh Schedule of the Bombay Reorganisation Act, 1960. Then it enumerates the Scheduled Tribes in Maharashtra also as given in Part VILA of the Bombay Reorganisation Act, 1960. The third classification is of Vimukta Jatis in Maharashtra, the fourth is of Nomadic Tribes in Maharashtra and the fifth classification which we are concerned, is headed, "Other Backward Classes (Caste Basis) for Maharashtra State". As many as 160 castes are enumerated in detail, the list being alphabetical. Item No. 87 in this list includes the caste of "Kunbi Tilori (in Ratnagiri District)", as belonging to Other Backward Class. There are no other categories of Kunbi included in this list as belonging to other Backward Classes.

28. There is one another list for Vidarbha Territory applicable only for purposes of distribution of Government waste land. In this list Item No. 118 also lists the caste of "Kunbi Tilori (in Ratnagiri District)". Neither side has been able to show us inclusion of Kunbi as a caste in the classification of 'Other Backward Classes' in this List.

29. We may mention, however, that Government of India seems to have prepared a list of other Backward Classes for grant of Post S. S. C. Scholarships and in this list of persons eligible to qualify for such Scholarships are included at serial No. 48 of Vidarbha Territory only persons belonging to Kunbi caste as eligible for such Scholarships.

30. Counsel from neither side have been able to bring to our notice any authorised resolution or circular from the State of Maharashtra showing that a student declaring that he belongs to the Kunbi caste, or Maratha or Maratha Kunbi caste can claim to be classified as belonging to the 'Other Backward Classes'.

31. It is an admitted position so far as Special Civil Application No. 813 of 1966 is concerned that the petitioner Shri Dhote claims to belong to Kunbi caste respondent No. 3 Shri Korpe claims to belong to Maratha Kunbi caste, respondent No. 4 Shri Mahajan claims to belong to Kunbi caste and so does respondent No. 5 Shri Bonde and respondent No. 6 Shri. V.Y. Dhote. In other words neither the petitioner nor any of respondents Nos. 3 to 6 are shown to belong to any caste included in the definition or list of other Backward Classes. by the State of Maharashtra for the purpose of admission to educational institutions to claim admission to the seats reserved for other Backward Classes. In view of this position, whatever the other merits or lack of merits in the case of the petitioner, the petitioner had no basic right to claim admission to the seats reserved for other Backward Classes. It is true his petition is founded on a grievance that respondents Nos. 3 to 6 have been admitted to seats reserved for other Backward Classes. But the petition was founded on the contention that respondents Nos. 3 to 6 had not exercised option of claiming admission to seats reserved for other Backward Classes. We have held that no student is required to make a choice, nor is he restricted by such option. The fact, therefore that none of respondents Nos. 3 to 6 had made a choice will be of no effect if any of them would be otherwise eligible for admission to a seat reserved for 'Other Backward Class'. As it transpires, however, none of them also appear to be eligible for admission to the seats reserved for 'Other Backward Classes'.

32. It was urged by the learned counsel appearing on behalf of respondent No. 3 that the issue whether either the petitioner or any of the respondents belongs to a community or caste included in the other Backward Classes was not raised in this petition, because neither the petitioner nor any of respondents Nos. 3 to 6 disputed their claim that each of them belonged to other Backward Classes. It was, therefore, contended that it was not necessary for this Court to adjudicate on the question whether or not either the petitioner or any of respondents Nos. 3 to 6 qualify for inclusion in the other Backward Classes. We fail to see how in considering the ambit of the rule and its application to the facts of this case the right of the petitioner to claim a seat reserved for other Backward Class', consideration of this issue can be excluded or avoided. The petitioner has founded his claim on the basis that he is a student belonging to the other Backward Class, that he had disclosed his caste, and that he had made a choice of being considered eligible for admission to the seat reserved for this Class and others not having done so, his claim could not be ruled out It was, therefore, necessary to determine what the scheme governing the rules of admission is. We are also not impressed with the argument that merely because neither side has questioned the status, in the matter of belonging to other Backward Class claimed by each, the issue does not require to be decided In examining the whole scheme of reservation of seats and the rules for admission made for implementation of the scheme, it is incumbent on the authorities and therefore, it is incumbent on us for a proper adjudication of the issues involved to find out what the scheme is. We must, therefore, reject the contention of the respondents that the issue is not germane to the decision of the petition. The Court had to be satisfied that the claim made by the petitioner that he belongs to the other Backward Class was well founded. If in the process of examination similar claim made by the respondents with whom the petitioner claimed in competition comes to be examined, it is difficult to see what valid objection could be taken to the adjudication of this question. Perhaps the conclusion to which we have arrived may be either unexpected or unanticipated by the respondents. But when the question is required to be judicially determined, we can hardly fail to exercise our jurisdiction in a comprehensive understanding of the scheme and pronounce on its validity by omitting a particular aspect merely because neither side was interested in the determination of the issue. The relevance and materiality of the adjudication does not depend in a writ petition merely on the plea raised by one side or the other Once the Court is in seisin of the whole matter-and this being an issue of interpretation of a provision of the Constitution and the rules made by the Government in exercise of its executive powers, it is necessary that the matter is considered from all its aspects lest a particular interpretation of the rules may give rise to similar complaints in the future. It is elementary that in invoking the extra ordinary jurisdiction of this Court a scrupulous regard to truthfulness of statements and averments in the petition or in the return is expected. It may be that a particular statement comes to be made through inadvertence or without due circumspection, but the adjudication of such claim cannot be resisted merely because the adjudication may affect the averments made on either side.

33. The principle on which the reservation of seats either in Government service or educational institutions has to be made seems now well settled. In a recent decision their Lordships of the Supreme Court in M.R. Balaji v. State of Mysore1 observed as follows:

"The Backward Classes for whose improvement special provision is contemplated by Article 15 (4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes. The backwardness under Article 15(4) must be social and educational. It is not either social or educational, but it is both social and educational. In dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the cast of the citizens, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves. Social backwardness is on the ultimate analysis, the result of poverty to a very large extent. The occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The place of habitation also plays not a minor part in determining the backwardness of a community of persons."

34. In another decision in Chitralekha v. State of Mysore2, their Lordships have indicated what could be the proper basis of classification. It is observed-in headnote (d):

"An order of the Government making a classification of socially and educationally backward classes on the basis of economic conditions only is not bad because it has not been done by taking into consideration the caste also. The authority concerned may take caste into consideration in ascertaining the backwardness of a group of persons; but if it does not, its order will not be bad on that account, if it can ascertain the backwardness of a group of persona on the basis of other relevant criteria.

Caste is only a relevant and not a compelling circumstance in ascertaining the backwardness of a class and where it can be done the social backwardness of a group of citizens can be determined without reference to caste at all...."

The Mysore High Court considered a somewhat similar question in S.A. Partha v. State of Mysore3 In para. 69 the Division Bench observes as follows:

"In view of the principles discussed above, the only manner in which the reservations in favour of Scheduled Castes and Scheduled Tribes and other Backward Classes can be worked out without being attacked as unconstitutional is to treat the reservation made in respect of each one of those classes as one in the nature of a guaranteed minimum of seats in open competition. For this purpose, it is necessary to prepare one consolidated list arranging all the applicants irrespective of castes or categories in the order of merit. If within the limit of the number of persons to be selected in the said list in the order of merit, each one of the three categories of Scheduled Castes, Scheduled Tribes and other Backward Classes secures the number of seats reserved for each one of them or a larger number, then nothing more need be done.

If, however, any one of those categories secures less number of seats than the minimum guaranteed to it within the said limit, then the deficiency must be made up by selecting in the order of merit from among the members of that category lower down in the list such number to the extent available as is necessary to make up the deficiency and at the same time, deleting an equal number of persons belonging to the unreserved category counting from the bottom of that part of the list falling within the limit of the number to be selected."We respectfully agree with this observation and it must be held that the selection, whenever any seats are reserved for particular categories for admission to the educational institutions, will have to be made only by this method and no other.

35. It is important to note that the State Government has onerous duty to perform when exercising its authority and make reservation for admission to educational institutions on the basis of the power granted to it under Article 15(4) of the Constitution. It has to steer clear of the vice of undue discrimination so as not to jeopardize the right of equal protection to citizens belonging to the communities other than those selected for reservation and, at the same time, ensure that a minimum of opportunity is made available to the members of the particular communities deserving all protection and encouragement in social and educational progress. It is in this context that the backwardness of a community or a caste has to be judged not merely by the accident of birth of an individual in the caste, but by the condition of members of that community or caste in the society as a whole, socially and educationally. This involves an overall effort on the part of the State to take steps in other directions to broad-base the education, provide various opportunities of education and to give economic assistance in the matter of fees, books and other facilities so that education may not be denied to any member of the community desiring to educate himself. In this State the State Government has taken effective steps which enable a preponderant class of students to get education without in some areas being required to pay fees between the ages of 6 and 14 and assistance in the form of reimbursement of fees etc. in educational institutions at later stage. Besides this, scholarships, stipends, free studentships etc. are made available, both by the Government of India as well as the State department, and in this effort to raise the educational and social level of all the communities, the Government can legitimately hope that there will be increasingly diminishing necessity of recruiting students to reserved categories and a corresponding progress in the general level of performance of students of these communities. In course of time, it will be legitimate to expect that the necessity of admitting students to reserved categories would exhaust itself with the betterment of performance of students once belonging to these categories, with the increasing facilities of education and opportunities of bettering their conditions, economically, socially and otherwise. We must not, therefore, accept an interpretation of the rules which unintentionally will result in perpetuation of the backwardness or anything which will put a premium on continuance of the backwarndess. We must, therefore, hold that the rules made for admission have been framed in conformity with the principles enshrined in Articles 15 and 29 of the Constitution and are hereby upheld.

36. The result is that Special Civil Application No. 876 of 1966 is allowed and the petitioners will be entitled to their costs from respondents Nos. 1, 2, 4, 6 and 7.

37. Special Civil Application No. 813 of 1966 fails and is dismissed, but there will be no order as to costs.

Order accordingly.