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PETITIONER: A. PEERIAKARUPPAN, ETC.

       Vs.

RESPONDENT: STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT: 23/09/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C. GROVER, A.N.

CITATION:  1971 AIR 2303            1971 SCR  (2) 430  1971 SCC  (1)  38

ACT: Constitution  of India, 1950, Arts. 14 and  15-Selection  of candidates  to medical colleges--Colleges  constituted  into different  units-Ratio of seats to candidates  different  in each  unit-Candidates  interviewed by  ,different  selection committees-Propriety. Interview system-Utility of Classification  of  backward  classes  on  basis  of  caste- Validity of reservation of seats to backward  classes-Proper proportion.

HEADNOTE: In  1970-71,  selection  of candidates  to  various  medical colleges  in  the  State  of Tamil  Nadu  was  done  on  the ’unit wise’ basis.  Under that scheme the medical  colleges in the city of Madras were constituted as ,one unit and each of   the  other  medical  colleges  in  the   mofussil   was constituted as a unit.  In respect of each one of the units, a   separate  selection  committee  was  constituted.    The intending  applicants were asked to apply to any one of  the committees  but  were  advised to  apply  to  the  committee nearest to their place of residence and, if they applied  to more  than  one  committee, their applications  were  to  be forwarded  by the Government to only one of the  committees. A  few seats were reserved to certain special categories  of students  and out of the remaining seats, 41 per  cent  were reserved for students coming from socially and educationally backward classes, scheduled castes and scheduled tribes, and the rest were placed in the general pool. All  the applicants in the general pool who secured  110  or more  marks ,out of 200, calculated according to  a  certain formula, were called for interview and selection  committees were  authorised to give in addition, a maximum of 75  marks at the interview.  The award of these marks was on the basis of  the following five criteria, namely, (a) Sports  or  NCC activities  ’  (b) extra-curricular  special  services,  (c) general  physical  condition  and  endurance;  (d)   general ability,  and (e) aptitude.  The gradation list prepared  by the   selection  committee  was  to  be  submitted  to   the Government.

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The petitioners, who unsuccessfully sought admission to  the medical  colleges in the State, challenged the  validity  of the selections made.  They contended that : (1) The unitwise selection  contravened Arts. 14 and 15 of  the  Constitution because, (a) the applicants of ’some of the units were in  a better position than those who applied to other units, since the ratio between the applicants and the number of seats  in each unit varied, and several applicants who secured lesser marks  than  the petitioners were  selected  merely  because their  applications came to be considered in  ,other  units, and  (b) the scheme was merely intended as a device  to  get over  the  decision of this Court in Rajendran v.  State  of Madras,  [1968] 2 S.C.R. 786; (2) the interview was a  farce because it Was held for only three minutes and no guidelines we’re  provided for the award of marks at the interview  and earmarking  for interview marks 75 out of the total  of  275 was excessive; (3) the interview marks were manipulated both by  the selection committee and the Government in  order  to pull  up undeserving :applicants; (4) the list  of  backward classes was solely made on the basis 431 of caste and therefore did not conform to Art. 15(4) of  the Constitution; (5) the reservation made for backward  classes was  disproportionately  high;  and  (6)  the  division   of backward  classes  into backward classes and  more  backward classes was impermissible under law. HELD  :  (1) (a) The object intended to be achieved  in  the present  case,  is to select the best candidates  for  being admitted  to  medical  colleges.   This  object  cannot   be satisfactorily  achieved  by  the  method  adopted.   It  is admitted that the minimum marks required for being  selected in  some  units is less than in other  units.   Hence  prima facie the scheme in question results in discrimination.  The plea  of delay in selection on State-wise basis  is  neither real nor substantial. [436 F-G; 437 C-D] (b)The  unitwise  distribution of seats appears  to  be  a different  manifestation of the  district-wise  distribution which  was struck down by this Court in  Rajendran’s  case,. [437 D-E] (2)In the course of three minutes interview, it is  hardly possible  to the capability of a candidate  since,the  first impression need not necessarily be the best impression.  But it  cannot  be  held  that the system  of  interview  is  so defective as to make it useless, or that the Government  has no  power to provide such high marks for interview  or  that there  was an arbitrary exercise of the power. [437 G-H; 438 H; 439 A] It  is true that the rule did not prescribe  separate  marks for  the  separate heads, but it must be presumed  that  the Government  considered that each of the heads  mentioned  as being  of equal importance and that the intention  was  that each  of  those  heads ’should carry 115  of  the  interview marks. [440 B-G] Since the marks list, as prepared in the present case, shows that the marks were given in a lump it was clearly  illegal. [440 F-G] Chitralekha  v.  State  of  Mysore  [1964]  6  S.C.R.   368, followed. Viswasnath  v.  Chief Secretary, Mysore, A.I.R.,  1964  Mys. 132, approved. The  tests  relating to the various  matters  for  allotting interview marks. are objective tests.  The aptitude referred to  in the rule is aptitude for the medical profession;  but in  this  case certain irrelevant matters  were  taken  into consideration and relevant matters were omitted.

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[439 H; 440 A, 441 A-B, C-D] (3)There is no material for concluding that there was  any manipulation of marks.  Numerous students whose  performance in the university examination was none too satisfactory  nor their  past records creditable have secured very high  marks at  the  interview,  and a large number  of  students  whose performance  in  the University examination was  very  good, secured very low marks at the interview.  This  circumstance is  undoubtedly disturbing but the courts cannot uphold  the plea  of mala fides on the basis of mere probabilities  [439 C-F] (4)The list of backward classes appears to include  castes and  not classes.  But caste is a relevant  circumstance  in ascertaining backwardness of a class and a classification of backward classes on the basis of caste is within the purview of Art. 15(4) of the Constitution, if those castes are shown to   be  socially  and  educationally  backward.   But   the Government  could not proceed on the basis once a  class  is considered  as a backward class it should continue to  be  a backward class for all time, because, once a class reaches a certain stage of progress competi- 432 tion  is necessary for its future progress.  The  Government should, therefore, always keep under review the question  of ’reservation  of  seats  and only those  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, and  the fact  that, in the present case, the candidate  of  backward classes had secured 50 per cent of the seats in the  general pool  does  show  that  the time has  come  for  a  de  novo comprehensive examination of the question.  The Government’s decision in this regard is open to judicial review. [442  B- C, 444 E-H] Balaji  v.  State  of Mysore, [1963] Supp.   1  S.C.R.  438, Chitralekha v. State of Mysore [1964] 6 S.C.R. 368, State of Andhra  Pradesh  v.  Sagar, [1963] 3 S.C.R.  595,  Minor  P. Rajendran  v. State of Madras, [1968] 2 S.C.R. 786,  Narayan Vasudev  v.  Emperor,  A.I.R. 1940  Bom.  379  and  Backward Classes Commission’s Report, referred to. (5)There is no basis for, the contention that  reservation made for backward classes is excessive.  While it is against the  immediate  interest of the Nation to exclude  from  the portals  of  our medical colleges  qualified  and  competent students,  immediate  advantages of the Nation  have  to  be harmonised with the Nation’s long range interest.  The  best way  of  serving  the Nation’s interest would  to  help  the backward  classes to march forward and take their  place  in line  with the advanced sections of the people. In  Balaji’s case  it was held that the total, reservation  for  backward classes,  scheduled castes and scheduled tribes  should  not ordinarily exceed 50 per cent of the available seats.  Since in the present case it was only 41 per cent, it could not be held that the reservation was excessive. [441 E-H; 442 A-B] (6)For the purpose of selection there is no classification of backward classes as backward and more backward.  The list sent  to the selection committee was that prepared  for  the purpose of fee concession. [441 F] In  the  present  case,  however,  the  impugned  selections already  made  could not be set aside because  the  selected candidates had already joined the course and are  undergoing training  and  they  had  not  been  made  parties  to   the petitions.   Since there are 24 seats yet to be  filled  up, the  State  shall immediately constitute a  separate  expert committee   consisting  of  eminent  medical   practitioners

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(excluding   all  those  who  were  members of   previous committees)  for  selection to these  unfilled  seats.   The selection should be made on State-wise basis.  The committee should interview only those candidates who are shown in the waiting  list and persons who unsuccessfully moved the  High Court  and the petitioners before this Court.  in  preparing the  gradation  list, the committee  should  allot  separate marks  under  the five heads mentioned in the rule  and  the committee  should take into consideration only matters  laid down in the rule excluding from consideration all irrelevant matters. [445 B-H]

JUDGMENT: ORIGINAL  JURISDICTION: Writ Petitions Nos. 285 and  314  of 1970. Under   Article  32  of  the  Constitution  of   India   for enforcement of the Fundamental Rights. K.K. Venugopal, and R. Gopalakrishnan, for the petitioner (in W.P. No. 285 of 1970). 433 M.Natesan, R. Gopalakrishnan, for the petitioner (in W.P. No. 314 of 1970). S.Govind  Swaminathan, Advocate-General for the State  of Tamil Nadu, A. V. Rangam and S. Mohan, for respondents  Nos. 1  to  5 (in W.P. No. 285 of 1970) and the  respondents  (in W.P. No. 314 of 1970). M. K. Ramamurthi and Vineet Kumar, for the interveners. The Judgment of the Court was delivered by Hegde,  J. In these two petitions under Art. 32 of the  Con- stitution   the   petitioners  who   unsuccessfully   sought admission to certain Medical Colleges in the State of  Tamil Nadu  have asked for a writ of mandamus to direct the  State of Tamil Nadu to allot to each, one of them a seat in one of the  Government  Medical  Colleges in  that  State  and  for consequential orders. In the State of Tamil Nadu, there are eight Medical Colleges out of which three are situate in the city of Madras, one in Madurai,  one  in  Chingleput, one  in  Coimbatore,  one  in Thanjavur and one in Tirunelveli.  The total seats available in  Madras  Colleges are 500.  The  sanctioned  strength  of seats  in  Madurai, Chingleput,  Coimbatore,  Thanjavur  and Tirunelveli are 200, 50, 100, 200 and 75 respectively.  Thus the   total  number  of  medical  seats  available  in   the Government Colleges for 1st year of M.B.B.S., course in  the State of Tamil Nadu are 1125.  We understand that for  these seats nearly 7,000 students applied for admission. In the previous years except in the year 1967-68,  selection of candidates for admission to the 1st year M.B.B.S.  course was  done  on State-wise basis.  In the  year  1967-68,  the seats  were  distributed  on district-wise  basis  but  that scheme  was  held to be invalid by this Court  in  Minor  P. Rajendran  v.  State of Madras and  Ors.(1)  Thereafter  the selection  was again made on State-wise basis in  the  years 1968-69 and 1969-70 but in the current year that system  was given up and selection was directed to be made on the  basis of  what  is  known as unitwise basis.   Under  the  present scheme  the  Medical  Colleges in the city  of  Madras  were constituted  as one unit and each one of the  other  Medical Colleges  in the mofussil was constituted as a  unit.   Thus six units were created in the State.  In respect of each one of the units a separate selection committee was constituted. The  intending applicants were asked to apply to any one  of the  committees  but  they  were advised  to  apply  to  the

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committee  nearest  to their place of residence  as  far  as possible.. They were told that if they applied to more  than one  committee their applications will be forwarded  by  the Government to only one of the committees. (1)[1968] 2 S. C. R. 786. 434 A few seats out of the 1125 seats were reserved for  certain special  categories  of students.  As there  is  no  dispute about those seats we shall not refer to them hereafter.  Out of  the remaining seats 41 per cent seats were reserved  for students  coming  from socially and  educationally  backward classes  Scheduled Castes & Scheduled Tribes.  The  rest  of them were placed in the general pool. In the State of Tamil Nadu actual marks are not being  given in  the Pre-University examination.  The papers were  valued on the basis of grades.  There are all together four  grades i.e.  Grades A to D. For the purpose of selection  to  first year  M.B.B.S., course only marks obtained in  the  optional subjects  were taken into consideration.  Selection  to  the seats  with  which we are concerned in  these  petitions  is confined to students who have taken in their  Pre-University examination Physics, Chemistry and Biology as their optional subjects though each of these subjects carried a maximum  of 100  marks  thus a total of 300 marks, for  the  purpose  of selection  to the first year M.B.B.S. course  the  procedure prescribed  was to take the minimum marks provided  for  the grade  secured by the applicant in Chemistry  and.   Physics and  add them together and thereafter divide the  ’total  by two and to that add the minimum marks provided for the grade secured  by the applicant in Biology.  Thus the total  marks in  the optional subjects was reduced from 300 to 200.   All the applicants in the general pool who secured 1 10 or  more marks  calculated on the basis of the formulae  referred  to earlier   were  called  for  interview  by   the   selection committees.  Selection committees were authorised to give  a maximum  of  75  marks  at  the  interview.   The  selection committees  were asked to award these marks on the basis  of following tests. (1)  Sports or National Cadet Corps activities; (2)  Extra Curricular special services; (3)  General physical condition and endurance-, (4)  General ability, and (5)  Aptitude. The   selection  committees  were  directed  to  prepare   a gradation  list on the basis of the total marks obtained  by each applicant and submit the same to the Government. The  petitioners  before  us appear to  have  had  brilliant academic career.  The facts mentioned by the petitioners  in this  regard were not controverted by the respondents.   The petitioner in Petition No. 285 of 1970 came out within first three ranks in the 10th and 11 th standards and in the final examination  he secured 451 marks out of the total, of  700. He Stood third in his school. 43 5 Du  ring  his school career he had taken  keen  interest  in extracurricular  activities.   He was a  N.C.C.  Cadet and passed  creditably the ’A’ certificate examination.  He  had also  obtained  certificate in boxing.  He  had  joined  the correspondence  course  conducted  by  the  Voice   Prophecy Institute,  New Delhi and obtained a certificate  in  Health and  Hygiene.   After having passed his  Anglo  Indian  High School examination creditably he joined Madurai college,  in the  Pre-University  course taking  Physics,  Chemistry  and Biology as his science subjects.  In that course he  secured first class with Grade D plus in Physics and Chemistry and A

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plus in Biology.  He stood fourth in his college.  The grade D  plus represents 85 to 99 per cent marks and A plus 65  to 75 per cent marks. The  petitioner in Petition No. 314 of 1970 passed her  Pre- University  examination  in  March,  1970  from  the   Scott Christian College, Nagercoil which college stands affiliated to  Madurai University.  She secured first class with  grade ’D’  (75 to 85 per cent marks) in Physics; grade D plus  (85 to  99 per cent) in Chemistry and D (75 to 85) per  cent  in Biology.   The  petitioner  also  had  a  brilliant   career throughout  in,  the High School classes as well as  in  the college  class.   She secured a merit card for  the  highest distinction consecutively for the years 1965-66, 1966-67 and 1967-68 in Standards 8 to 10 of St. Joseph’s Convent, Nager- coil.   In the S.S.L.C. examination held in March, 1969  she secured  456 marks out of 600.  She obtained distinction  in extracurricular activities both in school and college.   She had been a girl guide.  She took keen interest in games  and sports particularly in net-ball, throw ball and  tenniquoit. She  was  a  member of the Representative  team.   She  also passed with merit the pianoforte playing Grade 1 examination conducted by the Trinity College of Music, London. The petitioners before this Court challenged the validity of the selections made on various grounds.  They contended that the  unitwise selection contravenes Arts. 14 and 15  of  the Constitution  inasmuch as the same places the applicants  of some  of  the  units in a better  position  than  those  who applied  to  other  units.  It was alleged  that  the  ratio between  applicants  and number of seats in  the  Coimbatore unit was 1 : 13; in Tirunelveli 1 : 10; in Chingleput 1 : 6; in the Madras 1 : 5 1/2 ; in Thanjavur 1 : 6 and in  Madurai 1 : 71.  It was further alleged that several applicants  who secured lesser marks than the petitioners before this  Court were  selected merely because their applications came to  be considered  in other units.  It was also alleged  that  this unitwise scheme was merely intended as a device to get  over the  decision of this Court in Rajendran’s case().   It  was next  contended  on  behalf  of  the  petitioners  that  the interview held was a farce. (1)[1968] 2 S. C. R. 786. 436 Each  applicant  was interviewed hardly for  three  minutes. During that interview irrelevant questions were put to them. The  interview  marks  were manipulated so  as  to  pull  up under serving applicants and downgrade those who had secured excellent marks in their Pre-University examination.  It was said  that a perusal of the marks list would show  that  the whole selection was a manipulation.  The applicants who  had failed  more  than once and ultimately secured  bare  second class were selected while the first rate applicants who  had secured  first class with high marks were rejected.  It  was urged  on  their behalf that even the students who  get  the minimum marks could be pulled up by the selection committee by plumping 70 or more out of 75 interview marks whereas the students  who have secured 170 marks the highest marks  that could  have been secured under the admission rules  in  Pre- University  examination could be pulled down by giving  less than  10 marks out of 75 marks.  The petitioners’  complaint is that after the interview the selection committee  carried the  marks given by them to Madras and there the  Government has manipulated the marks in such a way as to ’select  their favourites  and reject such of them in whom  the  Government was not interested. It  was  also  urged that no  guidelines.were  provided  for awarding  marks  at the interview and  therefore  the  power

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conferred  on the selection committee is an arbitrary  power which  is  capable  of being misused and in  fact  has  been misused.  It was contended that the list of backward classes provided  to the committee was solely made on the  basis  of caste  and  as  such  that  list  did  not  conform  to  the requirements  of  Art.  15(4)  of  the  Constitution.    The petitioners  also  urged  that  the  reservation  made   for backward classes is disproportionately high and further  the division of backward classes into backward classes and  more backward classes was impermissible under law. We  shall first take up the plea regarding the  division  of medical  seats on unitwise basis.  It is admitted  that  the minimum  marks required for being selected in some  unit  is less than in the other units.  Hence prima facie the  scheme in  question results in discrimination against some  of  the applicants.   In Rajendran’s case(1) this Court  ruled  that the   district-wise  distribution  of  available  seats   is violative  of  Art.  15 of the Constitution’.   But  it  was Contended   on  behalf  of  the  State  that  the   unitwise distribution  of  seats  was adopted  for   administrative convenience.   It was said that it was not possible for  one selection   committee  to  interview  all  the   applicants. Therefore several committees had to be constituted.  In  the past when applicants were interviewed by several  committees there  were  complaints  that the standard  adopted  by  one committee differed from that adopted by others and therefore the  applicants’  ability  was  not  tested  by  a   uniform standard.  Further (1) [1968] 2 S. C. R. 786. 43 7 it  was  said  that when selections  were  made  by  several committees there was delay in preparing a consolidated list. We are unable to accept these grounds as being real  grounds for classification.  The grievance when selections were made by several committees in a State-wise selection the standard adopted by various committees differed, would continue  even when selections are made by several committees in a unitwise selection.   Whether  the  selection is  made  by  selection committees  on  State-wise  basis  or  unitwise  basis,  the standard  adopted  by various committees is bound  to  vary. Hence in principle it makes no difference. Now  coming to the question of delay, we see no  reason  why there should be any delay in preparing a consolidated  list. At any rate the delay caused is not likely to be such as  to justify  departure  from the principle of selection  on  the basis of merit on a Statewise basis.  Before a clasification can be justified, it must be based on an objective  criteria and  further it must have reasonable nexus with  the  object intended to be achieved.  The object intended to be achieved in  the  present case is to select the best  candidates  for being  admitted to Medical Colleges.  That object cannot  be satisfactorily   achieved  by  the  method   adopted.    The complaint  of the petitioners is that unitwise  distribution of   seats   is  but  a  different  manifestation   of   the districtwise  distribution sought in 1967-68 has some  force though on the material on record we will not be justified in saying   that  the  unitwise  distribution  was   done   for collateral  purposes.  Suffice it to say that  the  unitwise distribution of seats is violative of Arts. 14 and 15 of the Constitution.   The fact that an applicant is free to  apply to  any  one  unit  does not take  the  scheme  outside  the mischief of Arts. 14 and 15.  It may be remembered that  the students  were  advised as far as possible to apply  to  the unit nearest to their place of residence. Earmarking 75 marks out of 275 marks for interview as inter-

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view  marks prima facie appears to be excessive.  It is  not denied  that the interview lasted hardly, for three  minutes for  each  candidate.   In  the  course  of  three   minutes interview it is hardly possible to assess the capability  of a  candidate.  In most cases the first impression  need  not necessarily be the best impression.  But under the  existing conditions  in this country we are unable to accede  to  the contention of the petitioners that the system of  interview, as  in vogue in this country is so defective as to  make  it useless.   It is true that various researches  conducted  in other  countries particularly in U.S.A. show that  there  is possibility of serious errors creeping in interviews made on haphazard  basis.   C. W. Valentine on "Psychology  and  its Bearing on Education"’ refers to the marks given to the same set of persons interviewed 438 by two different competent Boards and this is what is stated in his book :               "The  members of each board awarded a mark  to               each  candidate and then he was discussed  and               an average mark agreed on.               When  the orders of merit for the  two  boards               were compared it was found that the man placed               first by Board A was put 13th by Board B  when               the  main placed 1st by Board B was 11th  with               Board A." Even  when  the, interviews are conducted by  impartial  and competent  persons on scientific lines very  many  uncertain factors  like  the initial nervousness on the part  of  some candidates, the mood in which the interviewer happens to  be and  the  odd  questions  that may be  put  to  the  persons interviewed  may  all  go  to  ,affect  the  result  of  the interview.  But as observed by this Court in R.  Chitralekha and Anr. v. State of Mysore and Ors(1).               "In the field of education there are divergent               views  as  regards  the mode  of  testing  the               capacity and calibre of students in the matter               of    admissions   to   colleges.     Orthodox               educationists stand by the marks obtained by a               student in the annual examination.  The  modem               trend of opinion insists upon other additional               tests,  such  as  interview,  performance   in               extracurricular activities, personality  test,               psychiatric  tests etc.  Obviously we are  not               in  a position to judge which method  is  pre-               ferable or which test is the correct one.   If               there  can  be manipulation or  dishonesty  in               allotting  marks  at  interviews,  there   can               equally  be  manipulation  in  the  matter  of               awarding marks in the written examination.  In               the  ultimate  analysis,  whatever  method  is                             adopted  its  success  depends  on  th e   moral               standards  of  the  members  constituting  the               selection   committee  and  their   sense   of               objectivity and devotion to duty.  This criti-               cism  is  more a reflection on  the  examiners               than  on  the system itself.  The  scheme,  of               selection,  however,  perfect it  may  be,  on               paper, may be abused in practice.  ’Mat it  is               capable of abused is not a ground for quashing               it.  So long as the order lays  down  relevant               objective criteria and entrusts the-  business               of selection to qualified persons, this  Court               cannot obviously have any say in the matter."

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While we do feel that the marks allotted for interview’  are on  the  high  side  and  it  may  be  appropriate  for  the Government to (1)  [1964] 6 S.C.R. 368. 439 re-examine  the  question,  we  are  unable  to  uphold  the contention  that  it  was  not  within  the  power  of   the Government to provide such high marks for interview or  that there was any arbitrary exercise of power.  It was urged  on behalf  of  the petitioners that the interview  marks  were, allotted on collateral considerations.  We are told that the selection  committees  were  tools  in  the  hands  of   the Government and the Government manipulated the marks in  such a  way as to facilitate the selection of those  students  in whom  the  members of the party in  power  were  interested. These  allegations were denied by the  respondents.   While, elaborating their arguments on their plea of mala fides  the learned Counsel for the petitioners invited our attention to the marks lists which according to them clearly showed  that the marks given at the interview are-by and large-in inverse proportion  to the marks obtained by the candidates  at  the University  examination.  We were also told that  the  marks lists  on  their  face show that the  interview  marks  were manipulated.  It was said that marks were so given as to see that  certain candidates got at least the  minimum  required for  selection.   While  there  is  some  basis  for   these criticisms  there is not sufficient material before us  from which  we could conclude that there was any manipulation  in preparing  the  gradation list.  It is  true  that  numerous students whose performance in the University examination was none too satisfactory nor their past records creditable  had secured  very high marks at the interview.  It is also  true that  a large number of students who had secured  very  high marks in the University examination and whose performance in the earlier classes was very good had secured very low marks at   the  interview.   This  circumstance   is   undoubtedly disturbing  but  the courts cannot uphold the plea  of  mala fides on the basis of mere probabilities.  We cannot believe that any responsible Government would stoop to  manipulating marks.   The  selection  committees  consisted  of   eminent persons.   Most of them are medical practitioners  occupying responsible  positions’ in life.  It would be a bad day  for this country if such persons take to manipulation of  marks. Hence  we  cannot accept the contention that  the  interview marks  were manipulated either by the Government or  by  the selection committees. It was next urged that no objective criterion was fixed for interview.  We are unable to accept this contention as well. I  The selectors were asked to interview candidates  on  the basis of the five criteria prescribed to which we have  made reference  earlier.  Those tests are sufficiently  objective in  character.  Similar tests were held to be  objective  by this  Court in Chitralekha’s case(1).  It cannot  be  denied that  extra  curricular  activities  like  sports,   N.C.C., special  services, general physical condition and  endurance and general ability are objective tests.  The aptitude (1)  (1964)6 S.C.R 368. 440 referred  to  in the rule, in our opinion, is  aptitude  for medical profession. It  was  next  contended that separate marks  had  not  been allotted  for each one of the tests enumerated in the  rule. A total of 75 interview marks were placed at the disposal of the selection committee and from out of those the  committee could award marks according to its sweet will and pleasure.

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Such  a  power it was said is an arbitrary power.   We  were told  that  the entire 75 marks could have been given  to  a candidate  even  if he satisfied only one out  of  the  five criterion  prescribed.   It is true that the  rule  did  not prescribe  separate marks for separate heads.  But  that  in our opinion did not permit the selection committee to  allot marks  as it pleased.  Each one of the tests prescribed  had its own importance.  As observed at footnote 20 at p. 485 of American  Jurisprudence Vol. 15 that the  interviewers  need not record precise questions and answers when oral tests are used to appraise personality traits; it is sufficient if the examiner’s  findings  are recorded on  the  appraisal  sheet according  to  the  personal  qualifications  itemised   for measure.   A  contention similar to those  advanced  by  the petitioners came up for consideration before the Mysore High Court  in D. G. Viswanath v. Chief Secretary of  Mysore  and Ors. Therein the court observed thus :               "It   is  true  that  Annexure  IV  does   not               specifically  mention the marks  allotted  for               each  head.   But from  that  circumstance  it               cannot   be  held  that  the  Government   had               conferred an unguided power on the Committees.               In the absence of specific allocation of marks               for  each head, it must be presumed  that  the               Government  considered that each of the  heads               mentioned  in  Annexure IV as being  equal  in               importance  to any other.  In other words,  we               have  to  infer  that  the  intention  of  the               Government  was that each one of  those  heads               should carry 1/5th of the "Interview" marks." We may note that the committee had not divided the interview marks  under  various  heads nor were  the  marks  given  on itemised  basis.   The marks list produced before  us  shows that  the  marks  were given in a  lump.   This  is  clearly illegal. The interview held was also vitiated for the reason that the selection  committee  took  into  consideration   irrelevant matters   and  at  the  same  time  failed  to   take   into consideration   matters   required   to   ’be   taken   into consideration.   In  the  counter-affidavit  filed  by   the Chairman  of the selection committee it was averred that  in allotting   interview   marks  the   committee   took   into consideration A.I.R. 1964 Mys.132. 441 qualities such as pleasant personality, quick thinking  etc. One  of the extra-curricular activities that  the  committee was   required  to  take  into%  consideration  was   N.C.C. training.   That was clearly an objective test but from  the counter-affidavit  filed, it appears that the committee  did not  think that it was sufficient if an applicant  had  good record  as a cadet, but according to it, he must  also  know why  he joined the N.C.C. and what role N.C.C. plays in  the National  life.   These,  in  our  opinion,  are  irrelevant considerations.  Again the test like the physical  condition and  endurance  can be best judged by  a  competent  medical practitioner after a careful medical examination.  It was in the  very  nature of things not possible for  the  selection committee though composed of eminent doctors to find out the physical  condition  and  endurance by a mere  look  at  the candidate.   It is clear from the affidavit filed on  behalf of  the selection committees that at the time  of  interview much  attention  had not been given to the  general  ability which  test include past performance of the  applicants  and the varied interest taken by them.

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From  the  facts  placed  before us it  is  clear  that  the candidates were not interviewed in accordance with the rules governing the interview. It  was  next  urged that  the  classification  of  backward classes  by  the Government into backward classes  and  more backward  classes  was  illegal  and  in  support  of   that contention our attention was invited to the decision of this Court in M. R. Balaji and Ors. v. State of Mysore().  It  is unnecessary to go into that question because for the purpose of the present selection the backward classes were not  sub- divided  into  backward classes and more  backward  classes. What  had  happened  is that the list  of  backward  classes supplied to the selection committee showed that some of  the communities are more backward than others but that list  was prepared for the purpose of fee concession.  For the purpose of the present selection all the classes shown therein  were treated as backward classes. There  is no basis for the contention that  the  reservation made  for backward classes is excessive.  We were  dot  told why it is, excessive.  Undoubtedly we should not forget that it  is  against  the immediate interest  of  the  Nation  to exclude  from the portals of our medical colleges  qualified and competent students but then the immediate advantages  of the  Nation  have  to be harmonised  with,  its  long  range interests.   It cannot be denied that unaided many  sections of  the  people  in this country  cannot  compete  with  the advanced sections of the Nation.  Advantages secured due to, historical  reasons should not be considered as  fundamental rights.  Nation’s interest will be best served-taking a long range  view-if  the  backward classes are  helped  to  march forward and take their- (1)(1963) Supp. 1 S. C. R. 438. 442 place  in  line with the advanced sections  of  the  people. That  is ,why in Balaji’s case (1) this Court held that  the total of reservations for backward classes, scheduled castes and scheduled tribes should not ordinarily exceed 50% of the avail able  seats.  In the present case it is 41 %.  On  the material  before  us we are unable to hold  that  the  said reservation is excessive. Considerable arguments were advanced assailing the  enumera- tion  of backward classes.  It was said that  the  concerned list included only castes and not classes.  The petitioners’ case  is that every one of the classes mentioned therein  is in  reality a. caste. Hence that list cannot be  sustained. In  Balaji’s case(1) this Court held that though caste is  a relevant factor in ascertaining a ,class for the purpose  of Art.  15(4),  a class cannot be constituted solely  on  the basis of caste.  Gajendragadkar J. (as he then was) speaking for the Court observed :               "That though castes in relation to Hindus  may               be   a   relevant  factor   to   consider   in               determining the social ,backwardness of groups               or  classes of citizens it cannot be made  the               sole  or  the dominant test  in  that  behalf.               ’Social   backwardness  is  on  the   ultimate               analysis  the  result of poverty,  to  a  very               large  extent.  The classes of citizens  who               are   deplorably  poor  automatically   become               socially backward.  They do not enjoy a status               in society I and have, therefore to be content               to  take  a backward seat.  It  is  true  that               social backwardness which results from poverty               is  likely to be aggravated by  considerations               of  caste  to  which  the  poor  citizens  may

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             belong,  but that only shows the relevance  of               both  caste  and poverty  in  determining  the               backwardness of citizens." In  Chiterlekha’s  case(2), this Court reiterated  that  the caste  is  a  relevant  circumstance  in ascertaining  the backwardness of a class.  Further it was observed therein :               "While this Court has not excluded caste  from               ascertaining  the backwardness of ’a class  of               citizens,  it  has  not made  it  one  of  the               compelling circumstances affording a basis for               the ascertainment of backwardness of a  class.               To put it differently 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 had on that account, if it can  ascer-               tain the backwardness of a group of persons on               the basis of other relevant criteria." The  same  view  was, expressed by this court  in  State  of Andhra  Pradesh  and anr. v. P. Sagar(3).  There in  it  was observed (1) (1963) Supp. 1 S. C. R. 438. (2) (1964) 6 S. C. R. 368. (3) (1968) 3 S. C. R. 595. 443-               "In  the  context  in  which  it  occurs   the               expression ’class’ means a homogeneous section of               the  people grouped together  because  of               certain  likenesses or common traits  and  who               are  identifiable  by some  common  attributes               such as status, rank, occupation, residence in               a  locality, race, religion and the like.   In               determining whether a particular section forms               a class, caste cannot be excluded  altogether.               But  in the determination of a class  a  test               solely  based  upon  the  caste  or  community               cannot also be accepted." A  caste  has  always  been  recognised  as  a  class.    In construing   the  expression  "classes  of   His   Majesty’s subjects"  found  in  s. 153-A of  the  Indian  Penal  Code) Wassoodew J. observed in Narayan Vasudev v. Emperor(1).               "In  my  opinion, the expression  ’classes  of               His-Majesty’s  subjects’ in Section  153-A  of               the  Code  is  used in  restrictive  sense  as               denoting a collection of individuals or groups               bearing a common and exclusive designation and               also    possessing   common   and    exclusive               characteristics  which may be associated  with               their original race or religion, and that  the               term ’class’ within that section carries  with               it the idea of numerical strength so large  as               could  be  grouped  in  a  single  homogeneous               community.,,               In  Paragraph  10, Chapter V of  the  Backward               Classes Commission’s Report, it is observed :               "We  tried  to  avoid caste  but  we  find  it               difficult  to  ignore  caste  in  the  present               prevailing  conditions.  We wish it were  easy               to  dissociate caste from social  backwardness               at the present juncture.  In modem times  any-               body can take to any profession.  The  Brahman               taking to tailoring, does not become a  tailor               by caste, (nor is his social status lowered as               a Brahman.  A Brahman may be a seller of boots               and  shoes, and yet his social status  is  not

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             lowered    thereby.    Social    backwardness,               therefore, is not today due to the ’particular               profession  of a person, but we cannot  escape               caste  in considering the social  backwardness               in India."               In Paragraph II of that Report it is stated:               "It  is  not  wrong  to  assume  that   social               backwardness  has largely contributed  to  the               educational backwardness of a large number  of               social groups."               Finally   in  Paragraph  13,   the   committee               concludes with following observations :               "All      this  goes  to  Prove  that   social               backwardness  is   mainly  based  on   racial,               tribal, caste and denominational differences." (1)  A. I. R.1940 Bom. 3 9. 444 The  validity of the impugned list of backward classes  came up  for  consideration  before  this  Court  in  Rajendran’s case(1) and this is what this Court observed therein               "The  contention is that the list of  socially               and  educationally backward classes  for  whom               reservation is made under r. 5 is nothing  but               a   list  of  certain   castes.    There.fore,               reservation in favour of certain castes  based               only on caste considerations violates Art. 1 5               (  1 ), which prohibits discrimination on  the               ground of caste only.  Now if the  reservation               in  question had been based only on caste  and               had  not  taken into account  the  social  and               educational  backwardness  of  the  caste   in               question, it would be violative of Art. 15(1).               But  it must not be forgotten that a caste  is               also a class of citizens and if the caste as a               whole is socially and educationally  backward,               reservation  can be made in favour of  such  a               caste on the ground that it is, a socially and               educationally   backward  class  of   citizens               within the meaning of Art. 15 (4) " Rajendran’s  case(1)  is an authority  for  the  proposition that the classification of backward classes on the basis of castes is within the purview of Art. 15(4) if those  castes are  shown to be socially and educationally  backward.   No further material has been placed before us to show that  the reservation  for backward classes with which we  are  herein concerned is not in accordance with Art. 15(4).  There is no gain  saying the fact the there are numerous castes in  this country  which are socially and educationally backward.’  To ignore  their  existence  is to ignore the  facts  of  life. Hence  we are unable to uphold the contention that  impugned reservation is not in accordance with Art. 15 (4).  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  back-ward 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 modem  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.  The fact that candidate,,  of backward classes have secured about 50% of the seats in the general pool does show that the time has come for a de  novo

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comprehensive  examination  of  the question.   It  must  be remembered that the Government’s decision in this regard is open to judicial review. (1)  (1968) 2 S. C. R. 786. 445 For  the reasons mentioned above we are of opinion that  the selections  impugned  in these petitions cannot be  held  to have   been  made  validly  inasmuch  as  the   seats   were distributed   on  unitwise  basis  and  further   that   the interviews were not held in accordance with the rules.   But despite  coming  to  that conclusion we are  unable  to  set ’aside the selections already made.  The selected candidates have  not been made parties to these petitions.   They  have already  joined  the  course and  are  undergoing  training. Their  selection cannot be set aside without giving them  an opportunity to put forward their case.  It is true that  the petitioners  had filed applications to premit them  to  have recourse to O. 1, r. 8. C.P.C. for the representation of the persons  interested  in opposing these applications  but  no order  has been passed on those applications and it  is  now too  late  to have recourse to that procedure even  if  that procedure  is,  permissible under law.  We are told  by  the learned  Advocate General of Tamil Nadu that 24 seats  still remain to be filled up.  He has assured us on behalf of  the State that those seats will be filled up in accordance  with the  orders of this Court.  There are about 80 persons,  who we  are  told  are  in  the  waiting  list.   Some  of   the unsuccessful  applicants had moved the High Court of  Madras for relief similar to that sought by the petitioners herein. But  it  appears their writ petitions have  been  dismissed. Some out of them have intervened in these petitions.   Other non-selected  candidates have evinced no interest  in  chal- lenging the selections made.  Under the circumstances, it is reasonable  to assume that they have abandoned  their  claim and  it  is too late for them to press their  claim.   Under these  circumstances, after discussion with the Counsel  for the  parties  we  have come to  the  conclusion  that  these petitions  should  be  allowed  subject  to  the   following conditions : The State of Tamil Nadu shall immediately constitute a sepa- rate   expert  committee  consisting  of   eminent   medical practitioners  (excluding all those who were members of  the previous committees) for selection to the 24 unfilled seats. The  selection  shall  be  made  on  Statewise  basis.   The committee  shall interview only the candidates who are  show in  the waiting list, the persons who  unsuccessfully  moved the High Court of Madras and the two petitioners before this Court.  They shall allot separate marks under the five heads mentioned  in  the  rule.  The  committee  shall  take  into consideration  only matters laid down in the  rule,  exclude from  consideration  all irrelevant matters  and  thereafter prepare  a gradation list to fill up the 24 seats  mentioned earlier.  It is ordered accordingly.  We think this is a fit case  where the petitioners should get their costs from  the State of Tamil Nadu. V.P.S.               Petition allowed and directions given.. 446