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PETITIONER: THE STATE OF MADRAS

       Vs.

RESPONDENT: SRIMATHI CHAMPAKAM DORAIRAJANandTHE STATE OF MADRASv.C.R. SR

DATE OF JUDGMENT: 09/04/1951

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND BOSE, VIVIAN MUKHERJEA, B.K.

CITATION:  1951 AIR  226            1951 SCR  525  CITATOR INFO :  F          1954 SC 561  (14,16)  F          1958 SC 731  (12)  R          1958 SC 956  (8)  R          1959 SC 648  (26)  R          1962 SC1621  (73,108)  R          1963 SC 649  (17)  RF         1967 SC1643  (22,164,227)  E          1968 SC1379  (2)  R          1970 SC2079  (16)  RF         1972 SC1375  (81)  RF         1973 SC1461  (506,648,1704,1714,1901,1918)  RF         1975 SC 563  (13)  O          1976 SC 490  (67,69,71,159)  R          1979 SC  83  (5)  RF         1980 SC1789  (115)  RF         1985 SC1495  (8)  RF         1988 SC 305  (7)

ACT:     Constitution  of  India,  Arts.  13.  16  (4),  29  (2), 46--Admission  to educational institutions--Executive  Order fixing number of seats for particular communities--Invalidi- ty--Fundamental  right  against discrimination on the ground of    religion   only--Directive   principles    of    State policy--Value of.

HEADNOTE:     With regard to admission of students to the  Engineering and  Medical Colleges of the State, the Province  of  Madras had issued an order (known as the Communal G. O.) that seats should  be filled in by the selection committee strictly  on the following basis, i.e., out of every 14 seats, 6 were  to be allotted to Non-Brahmin (Hindus), 2 to Backward Hindus, 2 to  Brahmins, 2 to Harijans. 1 to Anglo-Indians  and  Indian Christians and 1 to Muslims:     Held by the Full Court (Kania C.J., Fazl Ali,  PatanJali Sastri,  Mehr  Chand  Mahajan,  Mukherjea,   S.R.  Das   and

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Vivian  Bose  JJ.).--that the Communal  G.O.  constituted  a violation  of the fundamental right guaranteed to the  citi- zens  of India by Art. 29 (2) of the  Constitution,  namely, that "no citizen shall be denied admission to any education- al institution maintained by the State or receiving aid  out of the State funds on grounds only of religion, race, caste, language  or any of them and was therefore void  under  Art. 13. The directive principles of State policy laid down in   Part IV  the Constitution cannot in any way override  or  abridge the fundamental rights guaranteed by Part III.  On the other hand  they have to conform to and run as subsidiary  to  the fundamental rights laid down in Part III. Judgment of the Madras High Court affirmed.

JUDGMENT:     CIVIL APPELLATE JURISDICTION.--Cases Nos. 270 an d 27  1 of 1951, 526     Appeals under Art. 132 (1) of the Constitution of  India from  the Judgment and Order dated 27th July, 1950,  of  the Madras High Court in certain applications under Art. 226  of the Constitution for protection of the fundamental rights of the  petitioners  under Art. 15 (1) and Art. 29 (2)  of  the Constitution and praying for the issue of a writ of mandamus or other suitable prerogative writ restraining the State  of Madras  and all officers and subordinates thereof  from  en- forcing,  observing, maintaining or following the  order  of the  Government known as the Communal G.O. which  laid  down rules  to  be  observed by the selection  committee  in  the matter of admission of students to the Medical and Engineer- ing Colleges of the State.     V.K.T.  Chari,  Advocate-General, Madras  (R.  Ganapathy Iyer, with him) for the appellant.     Aliadi Krishnaswami Aiyar (Alladi Kuppuswami Aiyar, with him) for the respondents.     1951, April 9.  The Judgment of the Court was  delivered by     DAS J. --This judgment covers both Case No. 9.70 of 1951 (State of Madras v. Srimathi Champakam Dorairajan) and  Case No.  271 of 1951 (State of Madras v. C.R. Srinivasan)  which are  appeals from the judgment passed by the High  Court  of Judicature  at  Madras  on July 27, 1950,  on  two  separate applications under article 226 of the Constitution complain- ing  of breach of the petitioners’ fundamental right to  get admission  into educational institutions maintained  by  the State.     The   State of Madras  maintains four  Medical  Colleges and only 330 seats are available for students in those  four Colleges.  Out of these 330 seats, 17 seats are reserved for students  coming  from outside the State and  12  seats  are reserved  for discretionary allotment by the State  and  the balance of the seats available are apportioned between  four distinct groups of districts in the State. 527     Likewise, the State of  Madras maintains four  Engineer- ing  Colleges  and the total number of seats  available  for students  in those Colleges are only 395. Out of  these,  21 seats  are  reserved for students coming  from  outside  the State, 12 seats are reserved for discretionary allotment  by the State and the balance of the seats available are  appor- tioned between the same four distinct groups of districts.     For many years before the commencement of the  Constitu-

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tion,  the seats in both the Medical Colleges and the  Engi- neering  Colleges so apportioned between the  four  distinct groups  of districts used to be filled up according to  cer- tain  proportions  set forth in what used to be  called  the Communal G. O.  Thus, for every 14 seats to be filled by the selection committee, candidates used to be selected strictly on the following basis:--    Non-Brahmin (Hindus)        ...      6    Backward Hindus             ...      2    Brahmins                    ...      2    Harijans                    ...      2    Anglo-Indians and Indian    Christians                  ....     1    Muslims                     ...      1     Subject  to  the aforesaid regional and what  have  been claimed  to  be protective provisions selection  from  among the  applicants from a particular community from one of  the groups  of districts used to be made on  certain  principles based  on academic qualifications and marks obtained by  the candidates.   In the case of the Medical Colleges, not  less than  20 per cent. of the total  number of  seats  available for  students of the State were filled by  women  candidates separately  for each region, it being open to the  selection committee  to admit a larger number of woman  candidates  in any  region if qualified candidates were available  in  that region  and  if they were eligible for selection  on  merits visa  vis the men candidates in accordance with the  general principles governing such 528 admissions as laid down in those rules. It appears that  the proportion  fixed in the old Communal G.O. has been  adhered to even after the commencement of the Constitution on  Janu- ary  26, 1950.  Indeed, G.O. No. 2208, dated June 16,  1950, laying down rules for the selection of candidates for admis- sion into the Medical Colleges substantially reproduces  the communal proportion fixed in the old Communal G.O.     On  June 7, 1950, Srimathi Champakam Doratrajan made  an application to the High Court of Judicature at Madras  under article 226 of the Constitution for protection of her funda- mental rights under article 15 (1) and article 29 (2) of the Constitution and prayed for the issue of a writ of  mandamus or other suitable prerogative writ restraining the State  of Madras  and all officers and subordinates thereof  from  en- forcing,  observing, maintaining or following  or  requiring the enforcement, observance, maintenance or following by the authorities concerned of the notification or order generally referred to as the Communal G.O. in and by which  admissions into the Madras Medical Colleges were sought or purported to be  regulated in such manner as to infringe and involve  the violation  of  her fundamental rights.  From  the  affidavit filed  in support of her petition, it does not  appear  that the  petitioner  had actually applied for admission  in  the Medical  College.   She states that on inquiry she  came  to know  that she would not be admitted to the College  as  she belonged  to the Brahmin community.  No objection,  however, was  taken  to the maintainability of her  petition  on  the ground  of absence of any actual application  for  admission made  by her.  On the contrary, we have been told  that  the State  had  agreed  to reserve a seat for  her,  should  her application  before the High Court succeed. In the  peculiar circumstances,  we  do not consider it necessary  to  pursue this  matter any further. But we desire to  guard  ourselves against  being  understood as holding that we approve  of  a person  who has not actually applied for admission  into  an educational  institution  coming  to  Court  complaining  of

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infringement of any fundamental right 529 under article 29 (2).  The High Court by its judgment deliv- ered on July 27, 1950, allowed this application of  Srimathi Champakam  Dorairajan.  The  State of Madras has now come up before us on appeal which has been numbered Case No. 270  of 1951.     Sri  Srinivasan who had actually applied  for  admission into  the Government Engineering College at Guindy, filed  a petition  praying for a writ of mandamus or any  other  writ restraining  the  State of Madras and all  officers  thereof from  enforcing,  observing, maintaining  or  following  the Communal G.O. in and by which admission into the Engineering College  was sought to be regulated in  such manner  as   to infringe and involve the violation of the fundamental  right of the petitioner under article 15 (1) and article 29 (2) of the Constitution.  In the affidavit filed in support of  his petition,  the petitioner has stated that he had passed  the Intermediate  Examination held in March, 1950, in  Group  1, passing the said examination in the first class and  obtain- ing marks set out in paragraph 1 of his affidavit.  It  will appear that in the optionals which are taken into considera- tion   in  determining  the academic test for  admission  in the  Engineering College the petitioner  Srinivasan  secured 369 marks out of a maximum of 450 marks. The High Court  has by  the same judgment allowed this application also and  the State  has  filed an appeal which has been numbered  271  of 1951.  The learned counsel appearing for the State of Madras conceded that these two applicants would have been  admitted to  the educational institutions they intended to  join  and they would not have been denied admission if selections  had been made on merits alone.     Article 29 which occurs in Part III of the  Constitution under  the  head "Cultural and Educational Rights"  runs  as follows:    "(1) Any section of the citizens residing in the territo- ry of India or any part thereof having a distinct  language, script  or culture of its own shall have the right  to  con- serve the same. 530     (2) No citizen shall be denied admission into any educa- tional institution maintained by the State or receiving  aid out of State funds on grounds only of religion, race, caste, language or any of them."     It  will be noticed that while clause (1)  protects  the language,  script or culture of a section of  the  citizens, clause (2) guarantees the fundamental right of an individual citizen.   The right to get admission into  any  educational institution  of the kind mentioned in clause (2) is a  right which  an individual citizen has as a citizen and not  as  a member of any community or class of citizens. This right  is not to be denied to the citizen on grounds only of religion, race,  caste,  language or any of them.  If  a  citizen  who seeks  admission into any such educational  institution  has not  the  requisite academic qualifications  and  is  denied admission  on that ground, he certainly cannot be  heard  to ,complain  of an infraction of his fundamental  right  under this article. But, on the other hand, if he has the academic qualifications  but is refused admission only on grounds  of religion,  race, caste, language or any of them, then  there is a clear breach of his fundamental right.     The  learned  Advocate-General appearing for  the  State contends that the provisions of this article have to be read along with other articles in the Constitution. He urges that article  46  charges the State with promoting  with  special

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care  the  educational and economic interests of the  weaker sections of the people, and, in particular, of the Scheduled Castes  and the Scheduled Tribes, and with  protecting  them from  social injustice and all forms of exploitation. It  is pointed out that although this article finds a place in Part IV  of  the Constitution which lays down  certain  directive principles  of State policy and though the  provisions  con- tained  in that Part are not enforceable by any  Court,  the principles  therein laid down are  nevertheless  fundamental for  the governance of the country and article 37  makes  it obligatory  on the part of the State to apply those  princi- ples in making laws.  The argument is that having regard  to the  provisions  of  article 46, the State  is  entitled  t0 maintain the Communal 531 G.O.  fixing proportionate seats for  different  communities and if because of that Order, which is thus contended to  be valid  in law and not in violation of the Constitution,  the petitioners are unable to get admissions into the education- al institutions, there is no infringement of their fundamen- tal  rights. Indeed, the learned Advocate-General of  Madras even contends that the provisions of article 46 override the provisions  of  article 29 (2). We reject  the  above  noted contentions  completely.  The directive  principles  of  the State  policy, which by article 37 are expressly made  unen- forceable  by a Court, cannot override the provisions  found in  Part  III which, notwithstanding other  provisions,  are expressly  made enforceable by appropriate Writs, Orders  or directions  under  article 32. The  chapter  of  Fundamental Rights  is sacrosanct and not liable to be abridged  by  any Legislative or Executive Act or order, except to the  extent provided in the appropriate article in Part III. The  direc- tive  principles of State policy have to conform to and  run as subsidiary to the Chapter of Fundamental Rights.  In  our opinion,  that  is the correct way in which  the  provisions found in Parts III and IV have to be understood. However, so long as there is no infringement of any Fundamental.  Right, to the extent conferred by the provisions in Part 1II, there can  be no objection to the State acting in accordance  with the  directive  principles set out in Part IV,  but  subject again  to the Legislative and Executive powers  and  limita- tions  conferred on the State under different provisions  of the Constitution.     In  the next place, it will be noticed that  article  16 which guarantees the fundamental right of equality of oppor- tunity in matters of public employment and provides that  no citizen  shall,  on grounds only of religion,  race,  caste, sex,  descent, place of birth, residence or any of them,  be ineligible  for, or discriminated against in respect of  any employment or office under the State also includes a specif- ic clause in the following terms:-     "  (4) Nothing in this article shall prevent  the  State from  making, any provision for the reservation of  appoint- ments of posts in favour of any backward class 532 of  citizens  which,  in the opinion of the  State,  is  not adequately represented in the services under the State."     If  the arguments founded on article 46 were sound  then clause  (4)of article 16 would have been wholly  unnecessary and redundant. Seeing, however, that clause (4) was inserted in  article  16, the omission of such an  express  provision from  article 29 cannot but be regarded as  significant.  It may  well be that the intention of the Constitution was  not to  introduce at all communal considerations in  matters  of admission into any educational institution maintained by the

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State  or receiving aid out of State funds.  The  protection of  backward classes of citizens may require appointment  of members of backward classes in State services and the reason why power has been given to the State to provide for  reser- vation  of such appointments for backward classes may  under those  circumstances  be  understood.  That   consideration, however, was not obviously considered necessary in the  case of  admission into an educational institution and  that  may well  be  the reason for the omission from article 29  of  a clause similar to clause (4) of article 16.    Take  the case of the petitioner Srinivasan.  It  is  not disputed that he secured a much larger number of marks  than the marks secured by many of the Non-Brahmin candidates  and yet  the Non-Brahmin candidates who secured less  number  of marks  will be admitted into six out of every 14  seats  but the petitioner Srinivasan will not be admitted into any  ,of them. What is the reason for this denial of admission except that  he  is a Brahmin and not a Non-Brahmin.  He  may  have secured higher marks than the Anglo-Indian and Indian Chris- tians or Muslim candidates but, nevertheless, he cannot  get any of the seats reserved for the last mentioned communities for  no fault of his except that he is a Brahmin and  not  a member  of the aforesaid communities. Such denial of  admis- sion  cannot but be regarded as made on ground only  of  his caste.     It is argued that the petitioners are not denied  admis- sion only because they are Brahmins but for a 533 variety  of reasons, e.g., (a) they are Brahmins, (b)  Brah- mins  have an allotment of only two seats out of 14 and  (c) the two seats have already been filled up by more  meritori- ous Brahmin candidates. This may be true so far as these two seats reserved for the Brahmins are concerned but this  line of  argument can have no force when we come to consider  the seats reserved for candidates of other communities, for,  so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than  the sole ground of their being Brahmins and not being members of the  community lot whom those reservations have  been  made. The  classification  in the Communal G.O.  proceeds  on  the basis of religion, race and caste.  In our view, the classi- fication made in the Communal G.O. is opposed to the Consti- tution and constitutes a clear violation of the  fundamental rights  guaranteed to the citizen under article  29(2).   In this  view  of the matter, we do not find  it  necessary  to consider  the  effect of articles 14 or 15 on  the  specific articles discussed above.     For the reasons stated above, we are of opinion that the Communal  G.O.  being inconsistent with  the  provisions  of article 29 (2) in Part III of the Constitution is void under article  13.  The result, therefore, is that  these  appeals stand dismissed with costs. Appeals dismissed. Agent for the appellant: P.A. Mehta. Agent for the respondents: M.S.K. Sastri, 534