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PETITIONER: POST GRADUATE INSTITUTE OFMEDICAL EDUCATION & RESEARCH ETC.

       Vs.

RESPONDENT: K.L.NARASIMHAN & ANR. ETC.

DATE OF JUDGMENT:       02/05/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                   THE 2ND DAY OF MAY, 1997 PRESENT:               Hon’ble Mr. Justice K.Ramaswamy               Hon’ble Mr. Justice S.Saghir Ahmad               Hon’ble Mr. Justice G.B.Pattanaik M.S.Usgaonkar,  Additional   Solicitor  General,  D.S.Nehra, G.L.Sanghi, R.K.Jain,  N.N.Goswamy, P.P.Rao,  Sr. Advs., and S.K. Mehta,  Dhruv Mehta,  Fazlin Anam, Suresh C.Gupta, S.C. Paul, Jitender  Chauhan, Ms.Asha  Jain  Madan,  Ms.  Manjula Gupta, Wasim  Qatri, A.D.N.Rao,  S.K.Jain, Raj  kumar Gupta, H.V.P.Sharma, Rajesh,  Advs. with  them  for  the  appearing parties.                 J U D G M E N T S/O R D E R      The  following   judgments/Order  of   the  Court  were delivered:                             WITH          CIVIL APPEAL NOS. 3175,3177 &3176 OF 1997    (Arising out of SLP(C) Nos.17366/92, 420 and 3028/93)                             AND              WRIT PETITION (C) NO. 781 OF 1995                       J U D G M E N T K.RAMASWAMY, J.      Leave granted.      These appeals  and the  writ petition  arise out of the common  cause   relating  to  recruitment  to  the  post  of Assistant professors  in various  faculties in the appellant post  Graduate  Institute,  Chandigarh  and  admission  into specialities and  super-specialities. Advertisement  No.6/90 dated November 16,1990 relates to recruitment to the post of Assistant Professor;  out of 12 posts, 8 posts were reserved for Scheduled  Castes (for short, ‘Dalits’) and 4 posts were reserved fir  Scheduled Tribes (for short, ‘tribes’), in the pay scale  of Rs.3500-4500/-.  Essential qualifications were prescribed for  the said posts; there being no dispute, vis- a-vis qualifications,  it is not necessary to elaborate them except to  state that  these are  backlog vacancies. Through advertisement  No.   15/90  dated   November  25,1990,   the appellants had  called for  applications for  appointment to the said  posts and  admission to Doctoral Courses and Ph.D. programme for the academic session starting from 1.1.1991 in

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which posts  were reserved  for the  Dalits and  Tribes. The contesting respondents  in these  appeals  (for  short,  the ‘General Candidates’) and the Faculty Association challenged the advertisement  for recruitment  to the post of Assistant Professor  and  admission  to  Doctoral  Courses  and  Ph.d. Programme. Two  learned single judges in different judgments held  that  the  post  of  Assistant  professor  in  various disciplines is single post cadre; reservation for the Dalits and Tribes would amount to 1005 reservation; accordingly, it is unconstitutional.      In respect of admission to the post of Doctoral Courses and Ph.d..  Programme,. another  learned single  judge  held that the  reservation in recruitment to the post of Doctoral Courses   and    Ph.D.   Programme   undermines   efficiency detrimental to excellence for which purpose the appellant is established and  thereby it  is unconstitutional. On appeal, the Division  Bench  in  LPA  Nos.787/92,7827/92  and  batch dismissed the appeals. Thus, these appeals by special leave.      It is  not  in  dispute  that  the  post  of  Assistant Professor in  Diverse disciplines,  is single post cadre but carries the  same scale of pay and grade in all disciplines. The Institute  is of  national importance and is established with  the   object  to   develop  patterns  of  teaching  in undergraduate and  postgraduate medical education in all its branches so  as to  demonstrate a  high standard  of medical educational  facilities   of  the  highest  order,  for  the training of  personnel in  all important  branches of health activity; to teach under graduate and postgraduate sciences, including physical  and biological  sciences and  to provide facilities for  research in  the various  branches  of  such sciences etc.  Section 32  of the post-Graduate Institute of Medical Education  & research,  Chandigarh, Act  1966 (55 of 19660 (for  short, the  ‘Act’) provides for grant of (i) the degree, diploma  and other  academic distinctions and titles by the  institute;  (ii)  the  professorships,  readerships, lecturership and  other posts  which may  be instituted  and persons  who   may  be  appointed  to  such  professorships, readerships, lecturerships and other posts.      Rule 7 of the PGIMER, Chandigarh Rules, 1967(for short, the  ‘Rules),  as  amended  from  time  to  time,  envisage) creation of  posts, their  classification  into  grades  and specification of  their designations  provided that  no post above the  Associate professor level shall be created except with the  prior approval  of the  Central  Government;  (ii) determination of  method  of  recruitment,  the  age  limit, educational qualifications and other matters relating to the appointment to various posts in the Institute, in the manner provided for  by the  Regulations, as  amended from  time to time,  provides   that   all   matters   relating   to   the administration of  the academic affairs of the Institute are required to be considered by the Standing Academic Committee and all proposals for the creation of posts, by the standing Finance Committee.  under Regulation  32, the  Institute  is competent to  specify the age, experience and qualifications for a  post  subject  to  the  conditions  that  non-medical persons shall  not be  appointed to the post of Director and Medical Superintendent.  Regulation  32(2)  postulates  that while filling  up vacancies in posts and services, including the vacancies  in  teaching  faculty  under  the  Institute, reservations in  favour of the Dalits and Tribes is required to be  made as  per the  reservation orders  issued  by  the Central Government  from time  to time.  "Teaching  faculty" includes research post as well. in furtherance thereof, when the question  of application  of the  rule of reservation to senior faculty  posts was  put up  for consideration  to the

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Governing Body  of the  Institute on September 28,1984, they resolved as under:      "Reservation be  applied on  vacant      posts  of   professors,   Associate      professors and Assistant Professors      in addition  to lecturers  dn a  40      Point Roster  be maintained for the      same. As and when the advertisement      was sent  to the  press, the number      of   posts   reserved   should   be      indicated.    On     Receipt     of      applications, candidates  belonging      to reserved  categories  who  apply      for any  of the specialities should      be     considered     for     those      specialities.    After    comparing      merits the  best person  should  be      selected   on    the    basis    of      qualification  and   merit.  if  no      suitable candidate is then all such      posts  should  be  filled  in  from      general  candidates   and  reserved      vacancy should  be carried forward.      In  the   next  advertisement,  the      carry forward vacancies should also      be indicated."      It  was  decided  that  no  relaxation  in  respect  of qualifications  or   experience  would   be  recommended  by scrutiny Committee  for  any  of  the  applicants  including candidates belonging  to Dalits  and Tribes.  In furtherance thereof,  the   faculty  posts  would  be  reserved  without mentioning the speciality: if the Dalit and Tribe candidates were available  and found suitable, they would be treated as reserved candidates.  If no  Dalit and  Tribe candidate  was found available,  the post  would  be  filled  from  general candidates; otherwise  the reserved  post would  be  carried forward to  the next  year/advertisement. It  is settled law that if  a  dalit  or  Tribe  candidate  gets  selected  for admission to  a course or appointment to a post on the basis of merit  as general  candidate, he should not be treated as reserved candidate.  Only one  who  does  get  admission  or appointment by  virtue of relaxation of eligibility criteria should be treated as reserved  candidate.      The  Government  of  India  in  their  instruction  No. 9/2/73-Est.(SCT), dated  June 23,  1975, inter alia provided the scheme  of reservation  for Dalits  dn Tribes  to  cover appointments made  to ‘Scientific  and Technical’ posts upto and  including   lowest  of  Group  ‘A’  (Class  I)  in  the respective services which were not exempted from the purview of the  scheme of  reservation orders.  In the event of Non- availability   of    candidates   belonging    to   reserved communities, the  reserved vacancies  were  directed  to  be treated as  dereserved by  the  administrative  Ministry  or Department concerned  without obtaining  the approval of the Department of  Personnel and  Administrative  Reforms.  Only such ‘Scientific  & Technical"  posts in  the  Institute  as satisfied  the   following  conditions   laid  down  by  the Department of  personnel and  Administrative  Reforms  dated June 23,19975  exemption from  the  purview  of  reservation Orders:      (i) The  posts should  be in grades      above the  lowest grade  in Group A      (Class   I   )   of   the   service      concerned;      (ii) They  should be  classified as

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    ‘Scientific or  technical’ in terms      of Cabinet  Secretariat (Department      of Cabinet  Affairs)  O.M.85/11/CF-      61(1) dated 28.12.1961; and      (iii)  They  should  be  posts  for      conducting    research    or    for      organising, guiding  and  directing      research.      The rule  of reservation  for  Dalits  and  Tribes  was applied while  filling up  various vacant  teaching posts at the Institute  and for  that purpose all the vacant teaching posts at  the  level  of  lecturers,  Assistant  professors, Associate professors  and Professors,  though  in  different specialities /superspecialities,  were  clubbed  altogether, because the  posts were in the same pay scale under the same designation.      While filling  up the  posts at each level in different teaching Department  or specialities  or  superspecialities, different    educational    qualifications    in    specific field/specialities or  super-speciality were  prescribed. In the case  of non-medical  scientists or Ph.D. in the subject concerned,  allied   subjects  also   were  required  to  be fulfilled.      As the  posts belong  to different  specialities/super- specialities  for   which  qualifications   prescribed   are distinct and  different, the  posts cannot  be and  are  not transferable from  one speciality  to another.  However, the Institute had  clubbed all the posts of Assistant professors for the purpose of reservation in view of the fact that they are in the same pay-scale and have the same designation. The Institute has  been imparting  training for Md/M.Ch. courses in the  following super-specialities,  besides  other  post- graduate                                            courses:      DOCTOR OF MEDICINE (D.M.)      1. Cardiology      2. Endocrinology      3. Gastroenterlogy      4. Nephorology      5. Neonatology      6. Pulmonary Medicine      7. Clinical Pharmacology      8. Neurology      MAGISTER CHIRUGIAGE (M.CH.)      1.   Cardiovascular    &   Thoracic      Surgery      2. Neurosurgery      3.Paediatric Surgery      4. Plastic Surgery      5. Urology      Admission to  the above post-doctoral courses conducted at the Institute is made twice a year. The sessions commence from 1st  January and  1st July  each  Year.  The  Institute provides residency  service-cum-training scheme.  Candidates selected for  M.D./M.Ch. courses  and paid  by the Institute are designated  as senior  residents. The  admission to  the courses imparted  at the  Institute is  made on merit on all India basis by holding an entrance examination after issuing a countrywide  admission notice.  The admission is published in leading English Newspapers of India.      In the  light of  the above scheme and the Regulations, the  question   arises  is:   whether  the   reservation  in appointment to  the posts of Assistant professors in various disciplines in the Institute is violative of Articles 14 and 16 (1) of the Constitution? The High Court has relied on the judgement of  Dr. Chakradhar Paswan vs. State of Bihar [ AIR

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1988 SC  959] to  deny the  rights to the Dalits and Tribes. The controversy  is no longer res integra. In Union of India & Anr.  vs. Madhav s/o Gajanan Chaubaal & Anr. [(1997) 2 SCC 332], this  court has  considered the entire case law on the subject. The  question therein was: whether in a single post cadre, namely,  Secretary, applying the rule of rotation and application of  40 point  roster to  successive vacancies is violative of  Article 16(1)  and 14  of the Constitution? In para 10,  this Court had held that "[Thus, we hold that even though there  is a  single  post,  if  the  Government  have applied the  rule of  rotation and  the roster  point to the vacancies that  had arisen in the single point post and were sought to  be filled  up by  the candidate  belonging to the reserved categories  at the point on which they are eligible to be  considered, such  a rule  is not violative of Article 16(1)   of the  Constitution". In  that case,  the  post  of Secretary carrying  the pay  scale of  Rs.1200-2400/- was  a single post  cadre. The  Government applied  40 point roster for the post of Secretary. The vacancy available at the time of point  No. 4  of the  roster was reserved for Tribal. The Tribunal had  set aside the appointment order  on the ground that it  amounted to 100% reservation, violating Article 14. While reversing  the order   of the Tribunal, this Court has applied the  rule of  rotation and  roster  and  upheld  the appointment by  reservation in  a  carry  forward  post  and followed the  ratio of  the Constitution  Bench decision  in Arati Roy  Choudhary v.  union of India [(1974) 2 SCR 1]. In State of  Uttar Pradesh  vs. Dr. Dina Nath Shukla & anr. [JT 1997 (2)  SC 467=1997(3)   Supreme  Today 386], the question arose whether  pooling of  all the posts in similar grade or category for  application of  the rule  of  reservation  and rotation is valid in law? The University, applying the Uttar Pradesh Public  Services (Reservation  for Scheduled  Castes Scheduled  Tribes   and  OBC)Act,   1994,   advertised   for appointment  of   the  posts  of  professors  and  Lecturers treating the post as one unit; recruitment was made applying the rule  of rotation  for the  Dalits, Tribes  and OBCs  in respect of  all the  posts. The  Division Bench  of the High Court had  set aside  the notification on the ground that it was violative  of Articles 14 and 16(1) of the Constitution. This  Court   reversed  the  judgement  of  the  High  Court following Madhav’s case and R.K. Sabharwal & Ors . vs. State of Punjab & ors. [(1995) 2 SCC 745] relying on the Arati Roy Choudhary’s ratio  of the Constitution Bench. It was held in paragraph 14 as under:      "Thus it  could be seen that if the      subject wise recruitment is adopted      in each  service or  post  in  each      cadre in  each faculty, discipline,      speciality or  super-speciality, it      would not  only  be  clear  to  the      candidates who seek recruitment but      also there  would not  be an  over-      lapping in  application of the rule      of reservation  to the  service  or      posts   as   specified   and   made      applicable by Section 3 of the Act.      If there  is  any  single  post  of      professor, Reader  or  lecturer  in      each  faculty,   speciality   which      cannot  be  reserved  for  reserved      candidates, it  should  be  clubbed      roster   applied    and   be   made      available    for    the    reserved      candidates,  in  terms  of  section

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    3(5) of  the  Act.  Even  if  there      exists any  isolated post,  Rule of      rotation by  application of  roster      should be  adopted for appointment.      For achieving  the said object, the      Vice-Chancellor, who is responsible      authority under   Section 4 enforce      the Act,  would ensure  that single      post in  each category  are clubbed      since admittedly  all the  posts in      each   of    the   categories    of      professor,  Readers   or  Lecturers      carry  the   same  scale   of  pay.      Therefore,    their    fusion    is      constitutional and permissible. The      Vice-Chancellor  should  apply  the      rule of  rotation and the roster as      envisaged under  sub-section(5)  of      Section 3."      Accordingly, the  appeal was allowed. In Union of India & Ors.  vs. Brij Lal Thakur [JT 1997(4) SC 195], the post of E.C.G. Technician  in the  grade  of  Rs.1200-2040/-  was  a single cadre post in Central Hospital, Northern Railway. The rule of  rotation and  40 points  roster  was  applied.  The appellants therein selected the reserved candidate. The Same was questioned  by the  general candidate. The Tribunal Held that since  it was  solitary post,  reservation amounted  to 100%  reservation   and  was,  therefore,  unconstitutional. Reversing the  judgment and reiterating the law laid down in Madhav’s case and State of Bihar vs. Bageshwari Prasad [1995 Supp. (1)  SCC 432],  this court had held that to the single post of  E.C.G. Technician,  application of  40 point roster and rule  of rotation  was not  violative of Articles 14 and 16(1) of  the Constitution.  The Promotion  was held  to  be legal and  valid. Same was the question in Bageshwari Prasad case. In  State of  Punjab &  Ors. vs.  G.S.Gill &  Anr. [CA 3005/97   decided on  March 27, 1997], the single cadre post of Assistant superintendent, Quality Market Centre (Textile) was reserved  for Dalit  candidate applying rule of rotation and the  roster. The  High Court  set aside the promotion as violative of  Article 14.  Reversing that  judgment, it  was held  that  "  thus,  it  is  settled  legal  position  that application of  roster to  single post cadre and appointment by  promotion   to  carry   forward  post   is   valid   and constitutionl. With  a view  to give adequate representation in public  service  to  reserved  category  candidates,  the opportunity given  to them  is not  violative of Articles 14 and 16(1)  of the  Constitution". In Shri Suresh Chandra vs. Shri J.B.  Agarwal &  Osrs. {CA No. 3081/97 decided on April 4,  1997],  the  post  of  Assistant  Manager  (Electrical() carrying the  pay scale  of Rs.1000-1600/-  was  the  feeder channel for  promotion to  Senior Manager.  When the rule of rotation and  reservation was applied, the Tribunal declared the reservation  as violative  of Article  14. Reversing the order  of  the  Tribunal,  this  court  has  held  that  the reservation  to  single  post  cadre  is  not  violative  of Articles 14  and 16  of the  Constitution. The contention of the counsel  for the  respondent that Madhav’s case requires reconsideration in  view of  Chetana Dilip Motgnare v. Bhide Girls Edn. Socy., Nagpur & Ors. [(1985) supp. 1 SCC 157] was rejected.      In all  these decisions,  the ratio  laid down  by this Court in  Arati Ray Choudhury case was followed. Reservation to a  single cadre  post, applying  rule of  rotation of  40 point roster, was held valid and constitutional. Clubbing of

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the posts  carrying the  same scale  of pay or grade is also constitutionally permissible and accordingly clubbing of the single  point   post  of  assistant  professors  in  various disciplines of the appellant carrying  the same scale of pay and grade has been held to be constitutionally permissible.      Shri P.P.  Rao, learned  senior counsel for the general candidates,  contends  that  as  per  the  Circular  of  the Government of  India, dated  July 17,1964, the scientific or research posts  in the  institute are  exemptible  from  the purview of the reservation. The Committee recommended to the Government to  dereserve the  posts of Professors, Associate Professors and  Assistant Professors from the purview of the reservation. Since  the Committee  had not  taken any policy decision, and  the Institute being an autonomous body it, by itself, is  entitled to  take a  decision; permission of the Government for  dereservation is  not necessary.  We find no force  in   the  contention.   Far  from  admission  by  the institute, Regulation  32(2) establishes  that the Institute is bound  by the  reservation policy  of the  Government  of India.  Reservation   is  applicable   and,  therefore,  the Committee is  bound to  apply the rule of reservation to the said posts,  Merely because  the Institute is and autonomous body, it  cannot, except  with the  prior permission  of the Ministry of  personnel and  the concerned Ministry of Health and  Family   Welfare,  dereserve  the  posts.  it  is  then contended that  since the  committee has  deferred the issue requesting  the   Government  of   India  to   consider  the dereservation and  the same was reiterated in the year 1991, the  declaration   given  by   the  High   Court  that   the dereservation  is  constitutionally  permissible,  does  not warrant interference.  In respect  thereof, he placed strong reliance on  the decision  of this  court in Comptroller and Auditor General of India, Gian Prakash, New Delhi & Anr. vs. K.S.Jagannathan & Anr. [(1996) 2 SCR 78]. We find that there is no  force in  the contention.  It is seen that though the Committee of the Institute had recommended to the Government of India to dereserve the post, so long as the Government of India has  not given  any  direction  to  the  Institute  to dereserve the  post, it  has no  power to do the same and is bound to implement the principle of reservation.      The question  arises: whether the Court can give such a direction in  that behalf?  The Department  of personnel and Training in O.M. No. 36012, dated April 25,1989, had imposed a  ban  on  de-reservation  in  direct  recruitment  to  the vacancies under  the Government by letter No. 3612 dated May 9, 1989 issued by the Secretary, Department of Personnel and Training to  the Health  Secretary. Direction  was given  to make special  recruitment to  fill up  the backlog vacancies reserved for  Dalits and  Tribes. By  letter No. 36012 dated May 22,1989,  addressed  by  the  Deptt.  of  Personnel  and Training to  the Health  Secretary,  procedure  is  laid  to compute the  backlog vacancies  to be  filled up  by special recruitment drive to be launched w.e.f. 1.6.1989, as well as monitoring of filling up of vacancies by special recruitment drive; and  preparation of  action plan  was issued  in that behalf.  it   would,  therefore,   be  incumbent   upon  the appellant-P.G.I.  to make special recruitment to fill up the backlog of carried forward vacancies. Obviously , therefore, for  the   posts  of  Asstt.  Professor  which  are  backlog vacancies,  in   the  aforesaid   O.M.No.36012  dated  April 25,1989, the  Government have  stated that " it has now been decided that where sufficient number of candidates belonging to   SC/ST are  not  available  to  fill  up  the  vacancies reserved for them in direct recruitment, the vacancies shall not be  filled by candidates belonging to these communities.

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In other  words, there will be a ban on de-reservation. This will come into effect from 1.4.1989 in respect of all direct recruitment to  be made to fill up vacancies in groups A B C & D.  It is  further clarified  that this ban will apply not only to  vacancies which  arise after 1.4.1989, but also the the vacancies  reserved for  SC/ST  communities  of  earlier years which  have not  yet been filled up by other community candidates whether such vacancies have been deserved or not. It was  further stated that "if the required number of SC/ST candidates are  not even  then available the vacancies which could not be filled up, shall remain unfilled until the next recruitment year. These vacancies will be treated as backlog vacancies". In  the subsequent  year, "when  recruitment  is made for  the vacancies  of that  year (called  the  current vacancies), the backlog vacancies will also be announced for recruitment,  keeping   in  vacancies   of  the   particular recruitment year, i.e. the current vacancies and the backlog vacancies,  for   the  year   of  recruitment,   the  normal instructions relating  to calculation  of vacancies reserved for SC/ST  as well as the instructions for SC/ST, Physically handicapped, etc.,  will apply  to all the backlog vacancies reserved for  SC/ST and  will be  filled up by the concerned candidates  belonging   to  reserved  category  without  any without  any   restriction  whatsoever  as  they  belong  to distinct group of backlog vacancies. " It was further stated that "while  the vacancies  reserved for  SC/ST which remain unfilled will  be  carried  forward  to  the  next  year  of recruitment  as   backlog  vacancies,  the  carried  forward reservations for  SC/ST as  on 1.4.89  as a  result  of  the filling up  of the  relevant vacancies  after dereservation, will continue  to be  operated against a ‘current’ vacancies following the  existing  orders  dn  instructions.  If  such reserved vacancies  are still  not filled  up they  will  be carried forward  as backlog  vacancies under these orders. " With regard  to Group ‘A’ service, it was stated that "while the ban  on dereservation  comes into  effect from 1.4.89 on direct recruitment  on Groups  A B  C &  D in case of direct recruitment to  the vacancies in group A services, there may be  rare   and  exceptional   cases  where  after  the  non- availability of  suitable SC  and ST candidates posts cannot be allowed  to remain  vacant in  public interest."  In such situations, "  the administrative Ministry/Deparatment under which the  recruitment is  being made  shall make a proposal for  de-reservation   giving  full  justification  for  such action, and  consult the  Commissioner for  SC and  ST   and obtain his  comment on  each proposal.  After obtaining  the comments  of   the  Commissioner   for  SC   and   ST,   the administrative  Ministry   shall  place   the  proposal  for dereservation along with the Commissioner’s comment before a committee comprising  the Secretaries  in  the  Ministry  of Personnel,   in    the   Ministry   of   Welfare   and   the Ministry/Deptt. under  which the  recruitment is to be made. The recommendation  of this committee shall be placed before the Minster-in-Charge  of the  Ministry of  Personnel for  a final decision."  It would  thus be  seen that  a fool-proof procedure in  regard to  de-reservation has  been  provided. Before de-reservation  could be  made for recruitment of the Dalits and  Tribes, special drive is made as is incumbent on the administration to fill up not only the current vacancies but also  backlog vacancies. Only in exceptional cases, that too if  in spite  of all  sincere efforts  recruitment,  the backlog vacancies  or current  vacancies in  Class ’A’ posts remain  unfilled,   for   reasons   to   be   recorded   for dereservation, they  are required  to de-reserve  the posts; the   procedure    indicated   hereinbefore    with    prior

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consultations and  concurrence of  the Commission for SC/ST, should be  obtained and  the reserved  vacancies be notified for recruitment  by general  candidates and  the  denotified vacancies are carried forward.      The question,  therefore, is whether the Court can give direction to  throw  open  the  reserved  vacancies  to  the general candidates  by a  writ of  mandamus or direction, as the case  may be?  The contention  of Shri  P.P. Rao is that since the  institute had  already apprised  the Ministry  of Health and  Family Welfare  of the need for dereservation of the posts  relating to scientific and research and no action has since  been taken,  the  Court  is  empowered  to  issue directions. In  support thereof  he placed  reliance on  the judgment of this Court in Comptroller and Auditor General of India v.  K.S. Jaganathan  & Anr. [(1986) 2 SCR 17]. We find it difficult  to give acceptance to the contention. The same question had  arisen in  S.S. Sharma  v. U.O.I. [AIR 1981 SC 588], wherein  a Bench  of three  Judges of  this Court  had considered  the   question  whether  the  Court  could  give direction to  de-reserve the  post. This  court pointed  out that so  long as  the recruitment  by a limited departmental competitive examination  for the  Dalits and Tribes could be adopted and  followed, i.e.,  one of  the  methods  to  make recruitment, a  mandamus cannot  be issued  by the  Court to direct the Government to de-reserve the post. C.A.G. case is a reverse case. Therein , rule of reservation was applicable to all  the Departments since the C.A.G. had not applied the relaxed standard  in conducting  the examination  and making recruitment on  the basis thereof, the Division Bench of the High Court  had directed  to relax  the  standard  and  make recruitment of  the Dalits  and Tribes  by  promotion.  This court had  upheld  the  judgment  and  held  that  when  the authorities have  a power coupled with discretion, they have also a  duty to  implement the  policy of the Government. At page 39, this Court had pointed out that in order to prevent injustice resulting  in injustice  to the concerned parties, the Court  may itself pass an order or give directions which the Government or the competent authority should have passed or  given  had  it  properly  and  lawfully  exercised  its, discretion. Far  from helping the appellants, the ratio goes in favour  of the  reserved candidates.  This  question  was considered in  G.S. Gill’s case. Therein, the High Court has given direction to de-reserve the post and to throw open the same to  the general candidates, while considering the ratio in C.A.G.  case and  other decisions, this Court had pointed out  that   court  cannot   give  mandamus  to  disobey  the Constitution  and  principle  of  reservation  enshrined  in Articles 15(4)  and 16; nor it the Court competent to direct the authorities  to disobey  the constitutional  mandate. It would, therefore,  be manifestly  illegal to seek a mandamus or direction; nor would the Court be justified to issue such mandamus or  direction to  the appropriate Government to de- reserve vacancy.  It is common knowledge that selections are not  objectively   being  made   to  select  the  candidates belonging to  the Dalits and Tribes to fill up the vacancies reserved for  them though qualified candidates are available to be  promoted/appointed, with  a view to see that reserved vacancies are  not filled  up and the same are passed off as eligible candidates being not available so as to ensure that carry forward vacancies either exceed 50% of the accumulated total vacancies or that selection goes beyond three years so as to  make the  Government  de-reserve  the  vacancies.  It would, therefore,  be  clear  that  the  authorities  should implement the  executive/legislative/ constitutional  policy or principle in their true spirit, honestly and sincerely to

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effectuate the  policy; no  mandamus or  direction should be issued to  de-reserve the  carry forward  vacancies reserved for  appointment   of  the  Dalits  and  Tribes  nor  should direction be  given to  fill  up  the  reserved  posts  with general candidates.  Thus, it is settled legal position that application of  roster to  single post cadre and appointment by  promotion   to  carry   forward  post   is   valid   and constitutional. With a view to given adequate representation in public  service  to  reserved  category  candidates,  the opportunity given  to them  is not  violative of Articles 14 and 16(1) of the Constitution; nor is it unconstitutional.      In R.K.  Sabharwal &  Ors. v.  State of  Punjab &  Ors. [(1995)  2   SCC  745],  it  was  held  that  promotions  in accordance with roster are valid and constitutional.      Even  in   Indira  Sawhney’s   case,  this   Court  has reiterated the  view that  reservation for  the  Dalits  and Tribes is  as a  class but not as individual and, therefore, such a reservation is not violative of Article 14 or 16 (1)l of  the  Constitution.  This  we  hold  that  the  fact  the Government  of   India  has  not  de-reserved  the  post  as recommended by the appellent-P.G.I, itself is positive proof that the  Government are not in favour of de-reservation; On the other  had the  aforesaid Government order is a positive mandate not to de-reserve any post. Only in exceptional case that  too  in  group  ‘A’  posts,  de-reservation  could  be resorted to  in conformity  with  the  procedure  prescribed therein and  as per  the law above laid. Thus we do not find any force in the contention of Shri Rao.      Shri Rao  then contended  that this  Court in  Madhav’s case has  noted the  ratio of Sabharwal’ case, upholding the right to reservation in promotion but it relates only to the post and  not vacancy and that, therefore, in Madhav’s case, the distinction was not considered. Accordingly, it requires reconsideration. We  find no  force in  the  contention.  In every direct  recruitment, appointment is only to the vacant post. Equally,  when appointment by promotion is made, it is only to  the vacant  post.  The  ‘vacancy’  and  ‘post’  are usually used  interchangeable. When  roster is  applied  and rule  of   reservation  is  implemented,  it  should  be  in conformity with  the roster  by the prescribed procedure and appointments  of  the  reserved  candidates  by  the  direct recruitment or  by promotion  would always be only to vacant post ear-marked  in the  roster to  the general  candidates. Only in  a single  post cadre  by fiction  of law successive vacancies are  treated as  vacant post  as  per  the  roster applying the  rule of  rotation to  vacancies and  they  are filled up  as per  the  roster.  This  principle  guarantees equality of  opportunity to  the Dalits and Tribes to occupy the higher  echelons of  service. Otherwise  it would  be  a reverse  case   of  total  denial  of  opportunity  to  them violating Article  14, 15(4),  16(1) and  16(4A)  read  with Article 335. Sabharwal’s case does not deal with this aspect of the case as it did not arise therein. Therefore, there is no infirmity  either in the judgment in Madhav’s case nor is there any  inconsistency with  Sabharwal’s ratio.  In  fact, Sabharwal’s ratio  is applicable per force. The fact is that appointment   to   a   post   by   promotion   is   also   a constitutionally permissible  right  under  Article  16(4A). This Court  has observed in Sabharwal’s case that the roster should be  operated on current account basis in the order in which the  vacancies are required to be filled in. No doubt, this Court  pointed out  that once  roster points are filled up, the roaster gets exhausted but, in the latter paragraph, it was  pointed out  that re-cycling  would start  after the roster points  are totally  filled up.  It was  held by this

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court, in paragraph 10, while pointing out the anomaly, that "on the contrary, if the roster is permitted to operate till the total  posts in  a cadre  are filled  and thereafter the vacancy falling in the cadre are to be filled up by the same category  of   persons  whose  retirement  etc.  caused  the vacancies, then  the balance  between the  reserved category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserved candidate at the roster point, it would be open to the State Government to  carry forward  the point  in a  just and fair manner." Thus  it would  be apparent  that once  the  roster point is exhausted, it does not mean that reservation should not be  applied thereafter.  The  recycling  of  the  roster starts running  like current account and as and when vacancy arises  in   accordance   with   the   roster   point,   the posts/vacancies  would   subsequently  be   filled   up   by appointment. It would be a continuous process.      The contention  of Shri Rao that the Institute being an independent and  autonomous statutory  body, is not bound by the Government of India policy is devoid of base. It is seen that Regulation  32(2) itself  makes  rules  of  reservation issued by  the Government  of India  Applicable from time to time. It  is not in dispute that the Government of India was not spending  the entire  expenditure of  the Institute from the  public   exchequer  and,   therefore,  per   force  the appellants-Institute is enjoined to abide the constitutional policy of reservation.      It is  then contended  that in  view of the decision of this court in Indira Sawhney v. Union of India [(1992) Supp. SCC 217], the recruitment to 12 posts reserved for Dalits dn Tribes, is  in violation  of  the  carry  forward  principle adumbrated therein.  he placed strong reliance on paragraphs 817-18 at  pages 739-40. The carried-forward posts cannot be filled up  or reservation cannot exceed 50% of the 12 posts, proposed to  be filled.  It is contended that recruitment to the balance,  i.e., 6  posts, whenever  made or  in whatever manner it  is sought to be worked out, should be thrown open for general  candidates. We find no force in the contention. The case  therein did  not relate  to carried-forward posts. Firstly, he admits that Indira Sawhney’s case is not a ratio decided on  carried forward  rule since the facts therein do not relate  to carried forward posts and,  therefore, though it does  not operate  as a  binding precedent, yet, he says, the ratio is obiter and would bind the smaller benches; and, therefor, this  Bench is bound by the said ratio. In view of the   fair stand  taken by Shri Rao that it does not operate as a  ratio decidendi,  the question arises whether it binds smaller Benches  as obiter dicta. On the facts in this case, it is  not necessary  to go into that aspect of that matter. Suffice to  state that  the case  can be  decided on another point without  touching upon that issue and leaving it open. it is  seen that  this notification  is only  for a  special recruitment exclusively  for the  Dalits and  Tribes. In the light of Sharma’s ratio, it is always open to the Government to carry  out special  recruitment to  fill up   the backlog vacancies reserved  for SC/ST.  It  is  not  the  case  that backlog vacancies  should be  thrown  open  to  the  general candidates unless  they  are  de-reserved  and  notified  of recruitment by  general candidates and equal number of posts are  carried   forward.  There  sis  no  compulsion  on  the Government to  fill up  the vacancies  stage by  stage.  For instance, all  the 12  vacancies are  meant exclusively  for Dalits and  Tribes. The  recruitment is  by a special drive. Until the  posts are  thrown open  after  de-reservation  in accordance with  the principle referred to hereinbefore, the

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post would  nota be available to the general candidates. The obite dicta  in Indira  Sawhney case  on carry forward rule, even    if  applied,  does  no  t  violate  50%  reservation principle for the reason that if 12 posts are advertised for recruitment, appointment  to 6  posts could  be made and the balance 6  posts again  would be re-advertised; 3 post again would be  filled up  and; when  3 posts would be advertised; two could  be filled up and one could be carried forward and the  remaining   one  could   be  filled   up  in  the  last recruitment. There  is no  prohibition on filling up backlog vacancies by special recruitment. The special recruitment is not treated  as routine  recruitment in any year. The bar of special recruitment  is not   treated as routine recruitment in any  year. The  bar of  50% would apply only when general recruitment is  made on  both to  the general as well as the reserved candidates in respect of the current vacancies. But when  special   recruitment  is   made  for   selection  and appointment of  the  Dalits  and  Tribes,  to  the  reserved backlog  vacancies,   the  normal  run  for  recruitment  is inapplicable. Accordingly  instead of  conducting the  exams for different  categories in  the  manner  indicated  above, there is  no constitutional prohibition on filling up of the backlog vacancies  by a  special recruitment in a single go. Thus we  hold that  the special recruitment is not violative of the principle of carry forward within one year’s equally, reservation  within  50%  quota  is  not  violative  of  the principle  of  carry  forward  within  one  year’s  equally, reservation within  50% quota   is  not violative.  In  this behalf, this Court in G.S. Gill’s case had held as under:      "Thus it  could be  seen  that  the      carry-forward        rule        is      constitutionally permissible. It is      an extention  of the  principle  of      providing facility  and opportunity      to   secure    adequacy   of    the      representation to Dalits and Tribes      mandated by  Article 335. it should      be carried for three years. Even in      the post  when the  vacancy as  per      roster    was     available,    but      candidates were not available, same      could be  carried forward for three      years. However, in each recruitment      year, the carry-forward rule cannot      exceed 50%  of the  vacancies. That      question  does   nota  arise  in  a      situation  where  there  is  single      post/cadre. In  S.S. Sharma  & Ors.      V/s. union  of India  &  Ors.  [AIR      1981 SC 588] in paragraph 8 at page      592, this  Court had  held that the      limited  Departmental   competitive      examination of  recruitment of  the      members of  the schedule Castes and      Scheduled Tribes  for determination      of eligibility  for   promotion  is      not   invalid   nor   the   Central      Government be directed to dereserve      the  vacancies   meant   for   such      members  when  it  was  found  that      suitable   Schedule    Caste    and      Schedule Tribe  candidates were not      available for  inclusion within the      field of  selection. Whether or not      reserved vacancies  should  be  de-

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    reserved  is   a   matter   falling      primarily within the administrative      discretion of the Government. There      is no  right in  general candidates      to seek filling up of the vacancies      belonging to  the reserved category      and to  insist on  de-rservation of      reserved vacancies so long as it is      possible  in   law  to   fill   the      reserved vacancies. In other words,      carried     forward      (unfilled)      vacancies reserved  for Dalits  and      Tribes should  be filled up only by      the reserved candidates and general      candidates have  no right  to  seek      direction for dereservation thereof      for  filling  up  of  the  same  by      general candidates.  It would  thus      be clear that carry-forward rule is      a permissible  constitutional rule.      Carry forward  would  be  done  for      three years.      The next  question is;  whether the reservation in post graduate and  doctoral courses is violative of Article 15(1) of the  Constitution?  Shri Gupta, learned counsel appearing for the  General candidates, contends that the post graduate and doctoral  courses are  highly specialised  subjects. The reservation  for   those  posts  in  inconsistent  with  the maintenance of  high degree  of excellence  which the nation needs for  the treatment  of  the  patients  suffering  from critical diseases. the reservation in these specialities and super specialities Shri Gupta, learned counsel appearing for the General  candidates, contends that the post graduate and doctoral  courses   are  highly  specialised  subjects.  The reservation  for   those  posts  in  inconsistent  with  the maintenance of  high degree  of excellence  which the nation needs for  the treatment  of  the  patients  suffering  from critical diseases. the reservation in these specialities and super specialities Shri Gupta, learned counsel appearing for the General  candidates, contends that the post graduate and doctoral  courses   are  highly  specialised  subjects.  The reservation  for   those  posts  in  inconsistent  with  the maintenance of  high degree  of excellence  which the nation needs for  the treatment  of  the  patients  suffering  from critical diseases. the reservation in these specialities and super specialities Shri Gupta, learned counsel appearing for the General  candidates, contends that the post graduate and doctoral  courses   are  highly  specialised  subjects.  The reservation  for   those  posts  in  inconsistent  with  the maintenance of  high degree  of excellence  which the nation needs for  the treatment  of  the  patients  suffering  from critical diseases. the reservation in these specialities and super specialities Shri Gupta, learned counsel appearing for the General  candidates, contends that the post graduate and doctoral  courses   are  highly  specialised  subjects.  The reservation  for   those  posts  in  inconsistent  with  the maintenance of  high degree  of excellence  which the nation needs for  the treatment  of  the  patients  suffering  from critical diseases. the reservation in these specialities and super specialities  is detrimental to the public welfare. As a consequence,  this Court  has pointed  out in  Dr. Jagdish Saran &  Ors. vs.  Union of  India [(1980) 2 SCC 768 and Dr. Pradeep Jain  & Ors. vs. Union of India & Ors. [(1984) 3 SCC 654] as  was reiterated  in Indira  Sawhney’s  case.  It  is contended that the view of the High Court is correct in law.

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We find  no force  in the  contention. It  is true  that the learned single  Judge of  the High  court has  held that the Institute has  been established with the object of achieving high degree  of excellence  in medical studies, specialities and super-specialities  taught in the Institute as a measure to aheive the highest scales of super-specialities where the best skills  or talent  must be  hand  picked  by  selecting candidates on the basis of capability. As the level of Ph.D, M.D. or  M.Ch., proficiency of highest level is required and losing one  great scientist or technologist in the making is a national  loss.  The  consideration,  therefore,  is  upon achieving high  excellence  by  measure  of  matching  is  a national  loss.   The  consideration,   therefore,  is  upon achieving high excellence by measure of matching excellence; nation cannot afford to lose such excellence by taking grave risk. The Indian Medical Council also emphasis adopting high standards of  merit. The  question is  : whether by applying rule of reservation in admission to into the specialities or super-specialities course/faculties  would lead  to loss  of proficiency or  high excellence needed in the specialised or super-specialised faculties?  In our  considered view, it is not so.  It is  an accepted position that a student admitted to a  medical course  of a  post graduate course of study is required to  pass the  same standard  of examination  as  is prescribed in  the particular  course of  study. Equally,  a student, admitted  on reservation,  is required  to pass the same  standard   prescribed  for   speciality  or  a  super- speciality in a subject or medical science or technology. In that behalf,  no relaxation  is  given  nor  sought  by  the candidates belonging  to reserved categories. What is sought is a  facility or  opportunity for admission to the courses, Ph.D., speciality  or super-speciality or high technology by relaxation of  a lesser  percentage  of  marks  for  initial admission than  the general candidates. For instance, if the general candidate is required to get 80% as qualifying marks for  admission  into  speciality  or  super-speciality,  the relaxation for admission to the reserved candidates is of 10 marks less, i.e., qualifying marks in his case would be 70%. A doctor  or a  technologist has to pass the post graduation or the  graduation or  the graduation with the same standard as had  by general candidate and has also to posses the same degree of standard. However, with the facility of possessing even lesser  marks the  reserved candidate  gets  admission. Thereby, the  proficiency is  not affected.  In Dr.  Jagdish Saran’s case, this Court pointed out that the reservation of seats on  the basis of domicile or residence of the State of student of  the same  University was not consistent with the high degree  of proficiency   or  excellence required.  This Court took  care to  observe that  the above  ratio was  not intended to  be applied to the admission under Article 15(4) of the  Constitution. It  was expressly  stated to  be so in paragraph 25 thus:      "we  hasten   to  keep  aloof  from      reservation  for  backward  classes      and Scheduled  Castes and scheduled      Tribes because the Constitution has      assigned a  special place  for that      factor and  they mirror problems of      inherited   injustices    demanding      social  surgery  which  if  applied      thoughtlessly in  other  situations      may be  a remedy  which accentuates      the malady."      Even in  Dr. Pradeep Jain’s case also, in paragraph 13, this court pointed outa thus;

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    "we may  now  proceed  to  consider      what are the circumstances in which      departure may  justifiably be  made      from  the  principle  of  selection      based  on  merit.  Obviously,  such      departure can  be justified only on      equality-oriented   grounds,    for      whatever  be   the   principle   of      selection   followed   for   making      admission to  medical colleges,  it      must satisfy  the test of equality.      Now the  concept of  equality under      the  Constitution   is  a   dynamic      concept. It  takes within its sweep      every process  of equalisation  and      protective discrimination. Equality      must   not    remain   mere    idle      incantation but  it must  become  a      living reality for the large masses      of  people.   in   a   hierarchical      society with  an  indelible  feudal      stamp    and    incurable    actual      inequality, it is absurd to suggest      that   progressive    measures   to      eliminate  group  disabilities  and      promote  collective   equality  are      antagonistic  to  equality  on  the      ground  that  every  individual  is      entitled to equality of opportunity      based purely on merit judged by the      marks obtained  by him.  We  cannot      countenance such  a suggestion, for      to do  so would  make the  equality      clause   sterile   and   perpetuate      existing inequalities.. Equality of      opportunity is  not simply a matter      of legal  equality.  its  existence      depends not  merely on  the absence      of disabilities but on the presence      of  abilities   where,   therefore,      there is inequality, in fact, legal      equality always tends to accentuate      it. what  the famous  poet  William      Blake  said   graphically  is  very      true, namely, "One law for the Lion      and the  Ox is  oppression".  Those      who are unequal, in fact, cannot be      treated  by   identical  standards;      that may  be equality in law but it      would   certainly   not   be   real      equality.    It    is    therefore,      necessary to  take into  account do      facto inequal,  in fact,  in facto,      cannot  be   treated  by  identical      standards that  may be equality. It      is, therefore,  necessary  to  take      into account  de facto inequalities      which exist  in the  society and to      take affirmative  action by  way of      giving preference  to the  socially      and   economically    disadvantaged      persons or  inflicting handicaps on      those more  advantageously  placed,      in  order   to  bring   about  real      equality.. Such  affirmative action

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    though apparently discriminatory is      calculated to produce equality on a      broader  basis  by  eliminating  de      facto inequalities  and placing the      weaker sections of the community on      a  footing  of  equality  with  the      stronger and more powerful sections      so social  position may enjoy equal      opportunity of  using to  the  full      his natural endowments of physique,      of character and of intelligence."      In Ajay  Kumar singh  & Ors.  vs. State of Bihar & Ors. [(1994) 4  SCC 401],  reservation in  admission to  the post graduate medical courses was challenged. Reliance was placed on Dr.  Jagdish Saran  and Dr.  Pradeep Jain’s  cases.  This Court, after  noticing the  law laid  down in  the aforesaid case, held  in paragraph  13 that  "it is again necessary to notice the  context in which the said observation were made. In  Pradeep   Jain’s  case  the  Court  was  concerned  with wholesale reservation  made by some of the State Governments on the basis of fomicile or residence requirement within the state and  admitting only  those students  to their  medical colleges who satisfied the said requirements. With a view to extend the rule of equality, the Court directed that certain percentage  of  seats  both  in  M.B.B.S.  and  postgraduate medical courses  should be  filled on the basis of All India entrance test  and that  students  to  this  reserved  quota should not  be called  upon to satisfy the rule of residence or domicile,  as the  case may be. This was again not a case arising under Article 15(4). The observations made cannot be torn from  their context  and  read  as  applicable  to  the situation  obtained  under  Article  15(4).  For  the  above reasons, the  second contention  of Shri Vikas Singh is also rejected."  Thus,   this  Court   has  reiterated  that  the applicability of  the reservation in post graduation courses under Article  15(4) is  constitutionally permissible.  Even the observation  in Indira  Sawhney’s case  was explained in para 7, holding that the observations made with reference to Article 335  of the  constitution was  not with reference to Article 15(4).  it is  true that  a suggestion  was made for exclusion of  the reservation  in the specialised posts etc, under Sections  16(1) and  16(4). But  it is to be seen that what  Constitution  gives  tot  he  reserved  candidates  is facility and  opportunity to  enjoy the  right  to  equality enshrined  under   Articles  14,15(1),15(4),16(1),16(4)  and 16(4A)   respectively.    For   educational   and   economic empowerment and social justice, the arch of the Constitution in the  preamble and the relevant articles in Part III & IV, protective discrimination ensures practical content applying the  protective  and  actuality  and  equality  in  results, instead of  legal equality,  in favour  of the disadvantaged segments of the society.      In The  Ahmedabad St.  Xaviers College  Society case, a Bench of  nine Judges of this Court reiterated the rights of all minorities,  while deciding  whether the making religion or language  as the  base of reservation in establishing and administering the educational institution of their choice is unconstitutional. Articles  25 to  30 are a befitting pledge to the  minorities. The  attempt of  the Court  interpreting those articles  should be such as to facilitate enjoyment of the  rights.   The  object  is  to  integrate  them  in  the mainstream of  the society  to instill a sense of confidence in the  minorities so  that none  might have  a feeling that other section  of the  population  would  trample  upon  the fundamental rights  guaranteed under  the Constitution.  The

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ration equally  applies  to  the  protective  discrimination guaranteed to  the Dalits  and Tribes. The Dalits and Tribes are victims  of social injustice, practice of untouchability and segregation  from the  mainstream of  national life. The object of  protective discrimination is to integrate them in the national  mainstream so  as to  establish an  integrated social order  with equal  dignity of person in which justice social, economic and political  are enjoyed by them in equal measure with  the general  members of  the society. Dr. B.R. Ambedkar in  his closing  speech, in reply to the Debates in the Constituent Assembly, had stated that the edifice in the Constitution was  build up  with laborious  effect. There is no defect in the Constitution. if the Constitution fails, it fails not because there is defect in the Constitution but on account  of   the  bad  management  by  the  administrators. Judiciary is a part of the State under the Constitution. Dr. K.M. Munshi, in reply to the Debates on the minority rights, had stated  that one day the minority rights will be decided by 11  worthy judges was so high that they chose to describe Supreme Court  Judges as  " Worty  Judges’ to  interpret the Constitution only to sustain the social order, integrate the people in  united  Bharat  to  elongate  the  constitutional rights and  ensure the  enjoyment of  those rights  and make these  rights   available  to   the  Dalits.  Tribes,  poor, minorities  and   all  sections  in  equal  measure.  It  is repeatedly held by this Court that the interpretation of the constitutional provisions should always be such as to enable the availing  of the rights given in the Constitution to the citizens, and  not to  deny or  denude them  by  process  of interpretation. The  judges of the constitutional Courts, in particular. As judicial statesmen, would always endeavour to ensure enjoyment of the rights enshrined in the Constitution to every section of the society consistent with the policies and principles  laid down in the constitution we are to keep at the back of our mind. The above perspectives to reach the result.      As stated  earlier, the benefit of reservation does not necessarily imply down-grading the excellence. Every student after admission  into the  post graduate speciality or super speciality its  is required  to undergo  the same  course of study, same  standard and  higher performance for qualifying the course  for conferment  of the degrees in the respective specialities or  super-speciality or  technical subjects. In that  regard, there is no relaxation given to the candidates is also  expected to  have the  same degree of excellence on par with  general candidate,  with a lesser benefit of marks only for  admission into the course of study by relaxing the same standard  of marks. Securing marks is not he sure proof of higher  proficiency, efficiency  or excellence. These are matter of  acquired ability by studious application of mind, skills in  performance by  the candidate  concerned,  be  it general candidate  or reserved candidate. It is a matter  of application of  the  mind,  constant  assiduity  to  improve skills, capabilities  and capacities  and excellence  in the subject or  the field  of action chosen by the candidate. In that behalf,  it is  common knowledge  that marks  would  be secured in  diverse modes.  It is no indicia that particular percentage  of   the  marks  secured  is  an  index  of  the proficiency, efficiency  and excellence. They are awarded in internal examination  on the  basis of caste, creed, colour, religion etc.  It is  the constitutional  imperative of  the executive to  provide opportunities  and facilities  to  the handicapped to  acquire the  degree in  specialities, super- specialities or  technical posts. Denial thereof, is a total denial of  right to enjoy equality. It is well-settled legal

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position that  fundamental  rights  are  to  be  interpreted broadly to enable the citizens to enjoy the rights enshrined in part  III and  IV of the constitution {Vide The Ahmedabad St. Xaviers  College Society & Anr. etc. vs state of Gujarat & Anr.  [(1975) 1  SCR 173];  Marri Chandra  Shekhar Rao vs. DEAN, Seth  G.S. Medical  College &  Ors. [(1990) 3 SCC 130] and Ashok  Kumar Gupta  & Anr.  vs. State of U.P. & ors. (3) SCALE 289]} pa      Under these  circumstances, the  view of the High Court that the  reservation in  post  graduation  specialities  or super-specialities are  detrimental to  the high  degree  of efficiency and violative of article 14 is clearly incorrect, erroneous, illegal  and unconstitutional. Thus, we hold that the reservation  in post  graduation  speciality  or  super- speciality is  valid under  Articles 14,  15(1) and 15(4) of the Constitution.      These appeals  are accordingly allowed with no order as to costs.      The writ Petition 781/95 filed by Scheduled Association relates to  withdrawal of the reservations in the Institute. The action  taken  by  the  Institute  is  pursuant  to  the directions issued  by the  High Court.  In view  of the fact that we  allowed  the  appeals,  the  Institute,  hereafter, should follow  the reservation  and make appointments to the posts of  Assistant professors and other posts in accordance with Regulation  32(2) and  in other  faculties as  well  as admission  to  the  various  courses  in  the  Institute  by applying the rule of reservation.      Accordingly, the  writ petition is disposed of, but, in the circumstances, without costs.      We place on record the valuable assistance rendererd by the learned counsel appearing for the parties.