Holding

Article 15(4) is an enabling provision granting the State discretion to make reservations, and the State of Haryana's decision not to reserve postgraduate seats for SC/ST does not violate the Constitution.

Summary

The petitioners challenged the prospectus of Maharshi Dayanand University for MD/MS/PG courses, alleging that the absence of reservation for Scheduled Caste and Scheduled Tribe candidates violated Article 15(4) of the Constitution. The High Court dismissed the writ petition and the appellants appealed to the Supreme Court. The Court examined whether Article 15(4) imposes a mandatory duty on the State to provide reservation at the postgraduate level and whether a mandamus could be issued to compel such reservation. It held that Article 15(4) is an enabling provision, giving the State discretion to decide on reservation, and does not create a mandatory obligation. Consequently, the State of Haryana's conscious decision not to reserve seats for SC/ST candidates at the postgraduate level was not infirm, and no mandamus could be issued. The appeal and the writ petition were dismissed.

Issues considered

The scope of Article 15(4) of the Constitution – whether it imposes a mandatory duty to provide reservation for SC/ST in postgraduate medical courses.
Whether the State of Haryana's decision to omit reservation for SC/ST at the postgraduate level is constitutionally infirm.
Whether the Supreme Court can issue a mandamus directing the State to provide such reservation.

Legislation cited

Constitution of Indias. Article 15(4), s. Article 16(4)

Subjects

ReservationArticle 15(4)Postgraduate medical educationState policyMandamusSC/STConstitutional lawDiscrimination

Judgment

[2009] 16 (ADDL.) S.C.R. i

DR. GULSHAN PRAKASH & ORS. A
v.
STATE OF HARYANA & ORS.
(Civil Appeal No. 7964 of 2009)
DECEMBER 02, 2009
8
[K.G. BALAKRISHNAN CJI., P. SATHASIVAM AND
J.M. PANCHAL, JJ.]

Constitution of India, 1950 - Article 15 - Prohibition of
discrimination on the grounds of religion, race, caste etc. - C
Prospectus for Post-Graduate level medical courses issued
by University in Haryana, not providing any reservation of
seats for SC/ST candidates - Challenge to - Writ petition
dismissed by High Court- On appeal, held: Article 15(4) does
not make any mandatory provision for reservation - State D
Government is a competent authority to make reservation for
SC/ST/backward classes category at Post-Graduate level in
admission - It took conscious decision not to make
reservation for SC/ST/backward classes at Post-Graduate
level - Thus, the decision does not suffer from infirmity - E
Even, Medical Council of India which governs Post-Graduate
Degree/Diploma in medical education did not follow strict
adherence to rule of reservation policy in admission for SCI
ST category.

The question which arose for consideration in the F
instant appeal was whether High Court was justified in
dismissing the writ petition filed by appellants for
quashing of the prospectus for the MD/MS/PG Diploma
and MOS Courses issued by Maharshi Dayanand
University, Rohtak, Haryana for Academic Session 2007- G
2008 to the extent that it did not provide any reservation
of seats for Scheduled Caste/Scheduled Tribe
candidates.

1 H
2 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

ii.
A In .the writ petition filed before this Court, the ~

prospectus issued by the Maharshi Dayanand University
for the same course for academic session 2009-2010 is
under challenge.

Dismissing the appeal and the writ petition, the Court
B
HELD: 1.1. The principle behind Article 15 (4) of the
Constitution of India, 1950 is that a preferential treatment
can be given validly when the socially and educationally
backward classes need it. Article 15 (4) is an enabling
c provision. It enables the State Government to make
provisions for upliftment of Scheduled Castes and
Schedules Tribes including reservation of seats for
admission to educational institutions. Article 15 (4) is not
an exception but only makes a special application of the
D principle of reasonable classification. Article 15 (4) does
I-
not make any mandatory provision for reservation and
the power to make reservation under article 15 (4) is
discretionary and no writ can be issued to effect
reservation. Such special provision maybe made not only
E by the Legislature but also by the Executive. [Para 13)
[13-B-D]

1.2. The Government of India itself has made a
provision for reservation of SC/ST categories. This was •
a decision by the Government of India and it is applicable
F in respect of All-India Entrance Examination for MD/MS/
PG Diploma and MOS Courses, and reservation for SC/
ST candidates in All-India quota for PG seats. However,
the same cannot automatically be applied in other
selections where State Governments have power to
G regulate. The Government of Haryana in the counter
affidavit before the High Court, explained their position ...
that according to them, the matter regarding reservation
of seats in the PG Courses was considered by the State
Government from time to time and it was decided that
H keeping in view the recommendations of the Medical
DR. GULSHAN PRAKASH & ORS. v. STATE OF 3
HARYANA & ORS.
Council of India and precedents in the other States, A
reservation of SCIST in PG Courses is neither feasible nor
warranted, as there is already a reservation of 50 per cent
of the total seats in MDIMSIPG Diploma and MOS Course
in the in.stitutions of the State of Haryana on all-India
basis entrance examination, being conducted by AllMS, B
New Delhi, and that the appellants had already availed the
benefit of reservation of seats in their qualifying
examination of MBBSIBDS. They further clarified that
only the State Government is the Competent Authority to
decide the reservation in the State. The State Government c
did not prescribe any reservation for SCIST and
backward classes in admission to MDIMSIPG Diploma
and MOS Course, due to which it was not included in the
prospectus. Since Government of Haryana has taken a
conscious decision of not to make reservation for SCIST
0
categories in admission at the Post-Graduate level, such
a decision of the Government suffers no infirmity.
Though, even at the Post-Graduate level, reservation for
SCISTIBackward Community is permissible, in view of the
specific decision by the State of Haryana not to have
reservation for Scheduled Castes and Scheduled Tribes E
at the Post-Graduate level, there cannot be any
mandamus by this Court as claimed by the appellants.
+ Medical education is an important issue which should not
have any mandatory condition of this nature which may
give rise to a situation against public interest if so F
interpreted by the State Government as State Government
is in a better position to determine the situation and
requirement of that particular State, as mandated by the
Constitution. [Para 17] [16-E-H; 18-A-B; 17-A-H]
G
; 1.3 The order in Abhay Nath's case makes it clear that
the directions of this Court are applicable to admission
on All-l(ldia basis whereas the same have no bearing on
the admissions meant for State quota. Inasmuch as the
H
4 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
,._

A Government of Haryana has not prescribed· any
reservation for the Post-Graduate Courses, neither the
University nor any other authority be blamed for
approving and publishing the prospectus which does not
contain reservation for Post-Graduate Courses. The
B clarificatory order of this Court in Abhay Nath's case is
applicable for the Institutes managed/run by the Central
Government and unless the State Government takes any
decision for granting reservation in MD/MS/PG Diploma
and MOS Courses, it cannot be made applicable. As the
c State Government is competent to make the reservation
to a particular class or category, until it is decided by the
State, as being a Policy matter, there cannot be any
direction to provide reservation at the PG level. The State
of Haryana has explained that reservation in under-
Graduate Medical Courses is being provided strictly as
D
per their policy. The Post-Graduate Degree/Diploma in
medical education is governed by Medical Council. Even,
the Medical Council of India has not followed strict
adherence to the rule of reservation policy in admission
for SC/ST category at the Post-Graduate level. [Para 18)
E [18-H; 19-A-E]

1.4. The State Government is the best judge to grant
reservation for SC/ST/Backward Class categories at •
Post-Graduate level in admission and the decision of the
F State of Haryana not to make any provision for
reservation at the Post-Graduate level suffers no infirmity.
Every State can take its own decision with regard to
reservation depending on various factors. Since the
Government of Haryana has decided to grant reservation
G for SC/ST categories/Backward Class candidates in
admission at MBBS level-under graduate level, then it
does not mean that it is bound to grant reservation at the
Post-Graduate level also. State Government, in more than
one communication, has conveyed its decision that it is
H not in favour of reservation for SC/ST/Backward Classes
DR. GULSHAN PRAKASH & ORS. v. STATE OF 5
HARYANA & ORS.
~-
' at Post-Graduate level. In such circumstances, Court A
cannot issue mandamus against their decision and their
prospectus also cannot be faulted with for not providing

- I
reservation in Post-Graduate Courses. However, State of
Haryana is free to reconsider its earlier decision, if they
so desire, and circumstances warrant in the future years. B
[Para 19) [19-E-H; 20-A-B]

+ State of Kera/a and Anr. vs. N.M. Thomas and Ors. (1976)
2 SCC 310; Indra Sawhney and Ors. vs. Union of India and
Ors. 1992 Supp (3) SCC 217; K. Duraisamy and Anr. vs.
State of T.N. and Ors. (2001) 2 SCC 538; A/IMS Student's c
Union vs. A/IMS and Ors. (2002) 1 SCC 428; Union of India
vs. R. Rajeshwaran and Anr. (2003) 9 SCC 294; Dr. Preeti
Srivastava and Anr. vs. State of M.P. and Ors. (1999) 7 SCC
120; State of Punjab vs. Dayanand Medical College and
Hospital and Ors. (2001) 8 SCC 664; State of T.N. and Anr. D
i
vs. S. V. Bratheep (Minor) and Ors. (2004) 4 SCC 513; Ajit
Singh and Ors. (//)vs. State of Punjab and Ors. (1999) 7 SCC
209; Abhay Nath and Ors. vs. University of Delhi and
Ors.W.P. (C) No. 138/2006 decided by Cupreme Court on
31.01.2007, referred to. E

Case Law Reference:
(1976) 2 sec 310 Referred to. Para 8
1992 Supp (3) SCC 217 Referred to. Para 9 F
c2001) 2 sec 538 Referred to. Para 10
(2002) 1 sec 428 Referred to. Para 11

(2003) 9 sec 294 Referred to. Para 12
G
j
(1999) 1 sec 120 Referred to. Para 14
..., c2001) a sec 664 Referred to . Para 15
(2004) 4 sec 513 Referred to. Para 15
H
6 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A (1999) 1 sec 209 Referred to. Para 16 • ,
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7964 of 2009.
,___
From the Judgment & Order dated 5.2.2008 of the High
B Court of Punjab &Haryana at Chandigarh in Civil Writ Petition ,_
No. 1431 of 2008.

WITH ~

c W.P. (C) No. 69 of 2009.
Dr. Krishan Singh Chauhan, Chand Kiran, K.C. Lamba for
the Appellants.

Nidhesh Gupta, Tarun Gupta, S. Janani, Maninder Singh,
D Gaurav Sharma, Sumeet Bhatia, Surbhi Mehta, Ankit Gupta,
Harikesh Singh (for T.V. George), Alok Sangwan for the
;
Respondents.

The Judgment of the Court was delivered by

E P. SATHASIVAM, J. 1. The petitioners in S.L.P.(C) No.
4590 of 2008 and Writ Petition (C) No. 69 of 2009 are one
and the same. Leave granted in the special leave petition.

2. Challenge in this appeal is to the judgment dated
05.02.2008 of the High Court of Punjab & Haryana at •
F
Chandigarh, dismissing the Civil Writ Petition No. 1431 of
2008, filed by the appellants herein for quashing of the
prospectus for the MD/MS/PG Diploma and MQS Courses
issued by Maharshi Dayanand University, Rohtak, Haryana for
Academic Session 2007-2008 to the extent that it does not
G provide any reservation of seats for Scheduled Caste/
Scheduled Tribe candidates.

3. Challenge in Writ Petition (C) No. 69 of 2009, filed
under Art. 32 of the Constitution of India, relates to the
H ~
DR. GULSHAN PRAKASH & ORS. v. STATE OF 7
HARYANA & ORS. [P. SATHASIVAM, J.]
prospectus issued by the aforesaid University for the same A
courses for Academic Session 2009-2010 ..

4. The brief facts leading to the filing of these matters are
as under:

Vi de Notification dated 12.11.2007, State of Haryana B
instructed Maharshi Dayanand University, ('MDU' in short)
Rohtak to conduct the entrance examination for admission in
the MD/MS/PG Diploma and MOS Courses in Government
Medical and Dental Colleges in the State of Haryana for the
session 2008-2009 and declare results. By the same C
notification, the State of Haryana also instructed Pt. 8.0.
Sharma PGIMS, Rohtak to conduct the counseling and to finalize
the admission in the said courses. In pursuance of the said
notification, MDU, Rohtak published a prospectus for holding
entrance examination for the MD/MS/PG Diploma and. MOS D
" Courses in Government Medical and Dental Colleges in the
State of Haryana for the year 2008-2009. On 15.12.2007, the
appellants made a representation to the Commissioner and
Health Secretary, Ministry of Health and Medical Education,
Government of Haryana, Panchkula for implementation of SCI E
ST reservation in Post-Graduate Courses (MD/MS/MOS/
Diploma) PGIMS in accordance with the guidelines issued by
the State Government on 19.03.1999. Since there was no
•· response, the appellants preferred writ petition before the High
Court for quashing of the prospectus which was dismissed. F
Hence, the appellants have preferred this appeal by way of
special leave.

5. According to the appellants, on 07.08.2000, MDU
published the prospectus for the MBBS/BDS/BAMS/BHMS
Common Entrance Examination for admission to Medical/ G
Dental/Ayurvedic/Homeopathic Colleges/Institutions in Haryana
:r
notifying the seats for admission to various categories providing
20% reservation for the members of Scheduled Castes. On
17.09.2005, all the Institutions including All-India Institute of
Medical Sciences provided reservation in the Post-Graduate H
8 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A courses for the members of Scheduled Castes and Scheduled
Tribes. The Government Medical College, Patiala, Amritsar and
Faridkot also provided reservation in Post-Graduate Courses
for the Academic Session, 2007. The University of Delhi is also
providing reservation to the members of the Scheduled Castes
B and Scheduled Tribes. In addition to the same, counsel for the
appellants submitted that some States have also provided
reservation in Post-Graduate Courses. On the other hand,
learned counsel for the respondents submitted that the State +
of Haryana has already provided reservation at the graduate
c level courses i.e. MBBS/BDS/BAMS/BHMS·etc. and there is
no reservation in respect of Post-Graduate Courses and that
is the reason the prospectus issued for Post-Graduate Courses
does not contain any clause for reservation. They also
contended that Article 15(4) is only an enabling provision and
the State of Haryana, taking note of various aspects, decided
D
not to provide reservation for Scheduled Caste, Scheduled
Tribe and Other Backward Class candidates in Post-Graduate
Courses. They also pointed out that there cannot be any
mandamus compelling the State to provide reservation for a
particular class of persons.
E
6. We have heard Dr. Krishan Singh Chauhan, learned
counsel for the appellants and Mr. Nidhesh Gupta, learned
senior counsel for the respondents and perused all the relevant
materials and considered rival contentions. ~•

F
7. Article 15 mandates that the State shall not discriminate
against any citizen on the grounds only of religion, race, caste,
sex, place of birth or any of them. Sub-clause (4) in both Articles
15 and 16 is only an enabling provision for ~i1e State
Government to bring forward a legislation or pass an executive
G order for the benefit of socially and educationally Backward
Classes of citizens and for the Scheduled Castes and
Scheduled Tribes. Article 15(4) reads as follows:-

"4. Nothing in this Article or in clause (2) of Article 29 shall
H prevent the State from making any special provision for the
DR. GULSHAN PRAKASH & ORS. v. STATE OF 9
HARYANA & ORS. [P. SATHASIVAM, J.]

advancement of any socially and educational1y backward A
classes of citizens or for the Scheduled Cas es and the
Scheduled Tribes."

8. Learned counsel for the appellants, in support of his
claim, relied on a seven-Judge Bench decision of this Co1,1rt
8
reported in State of Kera/a and Another vs. N.M. Thomas and
Others, (1976) 2 SCC 310. The issue therein relates to
constitutionality of Rule 13AA of the Kerala State and
...
Subordinate Services Rules, 1958 granting exemption to
members of Scheduled Castes and Scheduled Tribes for a
specified period from special and departmental tests in the C
matter of promotion. By majority, their Lordships have upheld
the validity of Rule 13AA of the Kerala State and Subordinate
Services Rules, 1958, and two consequential orders and set
aside the judgment of the High Court. In the said decision, the
Court nowhere considered the effect and implication of Article D
-,l 15(4), particularly, whether it mandates the State to provide
reservation in Post-Graduate Courses or is only an enabling
provision.

9. On the ottier hand, the consistent view of this Court is E
that Article 15(4) is only an enabling provision and it is for the
respective States either to enact a legislation or issue an
executive instruction providing reservation in Post-Graduate
Courses. In Indra Sawhney and Others vs. Union of India and
~
Others, 1992 Supp (3) SCC 217, which is a nine-Judge Bench F
judgment of this Court, while considering Articles 16(4) & (1),
15(4), 14, 32, 340 and various other provisions, Jeevan Reddy,
J. speaking for the majority held:

"744. The aspect next to be considered is whether clause
(4) is exhaustive of the very concept of reservations? In G
other words, the question is whether any reservations can
be provided outside clause (4) i.e., under clause (1) of
Article 16. There are two views on this aspect. On a fuller
consideration of the matter, we are of the opinion that
clause (4) is not. and cannot be held to be, exhaustive of H
10 SUPREME COURT REPORTS [2009J 16 (ADDL.) S.C.R.

A the concept of reservations; it is exhaustive of reservations
in favour of backward classes alone. Merely because, one
form of classification is stated as a specific clause, it does
not follow that the very concept and power of classification
implicit in clause (1) is exhausted thereby. To say so would
B not be correct in principle. But, at the same time, one thing
is clear. It is in very exceptional situations, - and not for
all and sundry reasons - that any further reservations, of
whatever kind, should be provided under clause (1). In such
cases, the State has to satisfy, if called upon, that making
c such a provision was necessary (in public interest) to
redress a specific situation. The very presence of clause
(4) should act as a damper upon the propensity to create
further classes deserving special treatment. The reason for
saying so is very simple. If reservations are made both
under clause (4) as well as under clause (1 ), the vacancies
D available fpr free competition as well as reserved
categories would be a correspondingly whittled down and
that is not a reasonable thing to do."

10) In K. Duraisamy and Another vs. State of T.N. and
E Others, (2001) 2 SCC 538, a three-Judge Bench, while dealing
with the reservation at the Post-Graduate level and super-
speciality level, observed as follows:-

"8. That the Government possesses the right and authority
to decide from what sources the admissions in educational
F
institutions or to particular disciplines and courses therein
have to be made and that too in wh,at proportion, is well
established and by now a proposition well settled, too. It
has been the consistent and authoritatively-settled view of
this Court that at the super-speciality level, in particular, and
G even at the postgraduate level reservations of the kind
known as "protective discrimination" in favour of those
considered to be backward should be avoided as being
not permissible. Reservation, even if it be claimed to be
so in this case, for and in favour of the in-service
H
DR. GULSHAN PRAKASH & ORS. v. STATE OF 11
HARYANA & ORS. [P. SATHASIVAM, J.]
candidates, cannot be equated or treated on par with A
communal reservations envisaged under Articles 15(4) or
16(4) and extended the special mechanic.s of their
implementation to ensure such reservations to be the
minimum by not counting those selected in open
competition on the basis of their own merit as against the B
quota reserved on communal considerations."

11. In A/IMS Student's Union vs. A/IMS and Others,
(2002) 1 sec 428, while considering the similar issue, it was
held:-
c
"44. When protective. discrimination for promotion of
equalisation is pleaded, the burden is on the party who
seeks to justify the ex facie deviation from equality. The
basic rule is equality of opportunity for every person in the
country, which is a constitutional guarantee. A candidate D
who gets more marks than another is entitled to preference
"-- i for admission. Merit must be the test when choosing the
best, according to this rule of equal chance for equal marks
This proposition has greater importance when we reach
the higher levels and education like postgraduate courses. E
Resel'\fation, as an ex-ception, may be justified subject to
discharging the burden otproving justification in favour of
the class which must be educationally handicapped - the
reseivation geared up to getting over the handicap.
The rationale of reservation in the case of medical students F
must be removal of regional or class inadequacy or like
disadvantage. Even there the quantum of reservation
should not be excessive or societally injurious. The higher
the level of the speciality the lesser the role of reservation."

Again it was held that:- G

"..... Permissible reservation at the lowest or primary rung
is a step in the direction of assimilating the lesser
fortunates in the mainstream of society by bringing them
to the level of others which they cannot achieve unless H
12 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A protectively pushed. Once that is done the protection needs
to be withdrawn in the own interest of protectees so that
they develop strength and feel confident of stepping on
higher rungs on their own legs shedding the crutches.
Pushing the protection of reservation beyond the primary
B level betrays the bigwigs' desire to keep the crippled
crippled for ever ....... Any reservation, apart from being
sustainable on the constitutional anvil, must also be
reasonable to be permissible. In assessing the
reasonability, one of the factors to be taken into
c consideration would be - whether the character and
quantum of reservation would stall or accelerate achieving
the ultimate goal of excellence enabling the nation
constantly rising to higher levels. In the era of globalisation,
where the nation as a whole has to compete with other
nations of the world so as to survive, excellence cannot be
D
,given an unreasonable go-by and certainly not
compromised in its entirety ...... "

12. In Union of India vs. R. Rajeshwaran and Another,
(2003) 9 sec 294, direction was sought for to apply the rule
E of reservation to the Scheduled Castes and Scheduled Tribes
in respect of those seats which are set apart for All-India pQol
in MBBS/BDS list. In the present context, the following
conclusion is relevant:-

F "9. In Ajit Singh (II) v. State of Punjab this Court held that
Article 16(4) of the Constitution confers a discretion and
does not create any constitutional duty and obligation.
\-anguage of Article 15(4) is identical and the view in
Comptroller and Auditor General of India, Gian Prakash
v. K. S. Jagannathan and Superintending Engineer,
G Public Health v. Ku/deep Singh that a mandamus can be
issued either to provide for reservation or for relaxation is
not correct and runs counter to judgments of earlier
Constitution Benches and, therefore, these two judgments
cannot be held to be laying down the correct law. In these
H
DR. GULSHAN PRAKASH & ORS. v. STATE OF 13
HARYANA & ORS. [P. SATHASIVAM, J.]
circumstances, neither the respondent in the present case A
" •
could have sought for a direction nor the High Court could
have granted the same.

' 10. Hence, we allow the writ appeal transferred to this
Court and set aside order made in the writ petition. The
B
appeal also shall stand disposed of accordingly."

13. The principle behind Article 15(4) is that a preferential
treatment can be given validly when the socially and
• educationally backward classes need it. This article enables the
State Government to make provisions for upliftment of c
Scheduled Castes and Scheduled Tribes including reservation
of seats for admission to educational institutions. It was also
held that Article 15(4) is not an exception but only makes a
special application of the principle of reasonable classification.
Article 15(4) does not make any mandatory provision for D
reservation and the power to make reservation under Article
~ 15(4) is discretionary and no writ can be issued to effect
reservation. Such special provision may be made not only by
the Legislature but also by the Executive.
E
14. Learned counsel for the appellants relying on the
Constitution Bench decision of this Court in Dr. Preeti
Srivastava and Another vs. State of M.P. and Others, (1999)
7 sec 120, submitted that when it is permissible to prescribe
-I
a lower minimum percentage of qualifying marks for the
reserved category candidates, as compared to the general F
category candidates, it is incumbent on the part of the State
Government to prescribe certain percentage for SC/ST
candidates even for the Post-Graduate Courses. On going
through the decision, we are unable to accept the said
contention. In para 10 of the judgment, this Court has posed G
the following question for consideration:-
1
"We have therefore, to consider whether for admission to
the postgraduate medical course::, it is permissible to
prescribe a lower minimum percentage of qualifying marks H
14 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A for the reserved category candidates as compared to the
general category candidates. We do not propose to
examine whether reservations are permissible at the }
postgraduate level in Medicine. That issue was not
debated before us, and we express no opinion on it. We
B need to examine only whether any special provision in the
form of lower qualifying marks in PGMEE can be
prescribed for the reserved category"

After discussing relevant aspects and earlier decisions this
Court concluded:-
c
"In the premises, we agree with the reasoning and
conclusion in Dr Sadhna Devi v. State of U.P. and we
overrule the reasoning and conclusions in Ajay Kumar
Singh v. State of Bihar and Post Graduate Institute of
D Medical Education & Research v. K.L. Narasimhan. To
conclude:
•
1. We have not examined the question whether
reservations are permissible at the postgraduate level of
medical education.
E
2. A common entrance examination envisaged under the
regulations framed by the Medical Council of India for
postgraduate medical education reqLJires fixing of
minimum qualifying marks for passing the examination ,,.
F since it is not a mere screening test.

3. Whether lower minimum qualifying marks for the
reserved category candidates can be prescribed at the
postgraduate level of medical education is a question
which must be decided by the Medical Council of India
G
since it affects the standards of postgraduate medical
education. Even if minimum qualifying marks can be
lowered for the reserved category candidates, there cannot
be a wide disparity between the minimum qualifying marks
for the reserved category candidates and the minimum
H
DR. GULSHAN PRAKASH & ORS. v. STATE OF 15
HARYANA & ORS. [P. SATHASIVAM, J.]
qualifying marks for the general category candidates at A
this level. The percentage of 20% for the reserved category
and 45% for the general category is not permissible under
~ Article 15(4), the same being unreasonable at the
postgraduate level and contrary to the public interest.
.... B
4. At the level of admission to the superspeciality courses,
no special provisions are permissible, they being contrary
to the national interest. Merit alone can be the basis of
selection."
' It is clear that first of all in Preeti Srivastava (supra), this Court c
did not examine whether reservation is permissible at the Post-
Graduate level in Medicine. It is also clear that the .Court has
dealt with only the question as to the prescribing lower minimum
percentage of qualifying marks for the reserved category
candidates at the Post-Graduate Medical Courses and D
ultimately it was concluded that the same is permissible,
i however, insofar as medical education is concerned, it must
be decided by the Medical Council of India. It is relevant to
mention that pursuant to the said decision the Medical Council
of India ('MCI' in short) has prescribed minimum qualifying E
marks as 50 per cent for the 'general category candidates' and
40 per cent for the 'reserved category candidates'. In such
circumstances, the argument based on Preeti Srivastava
(supra), by the learned counsel for the appellants is liable to
. be rejected .
F
15. It is also useful to refer the judgment in State of Punjab
I
vs. Dayanand Medical College and Hospital and Others,
_, (2001) 8 sec 664, wherein similar contention as projected
before us by the counsel for the appellants was raised. In para
10 of the judgment in Preeti Srivastava (supra), it was clarified G
that this Court was only paying attention to the question of fixing
lower minimum qualifying marks for reserved category
candidates. In the same decision, it was stated that such
question must be decided by the Medical Council of India, since
it affects the standard of Post-graduate medical education. In H
16 SUPREME COURT REPORTS (2009] 16 (ADDL.) $.C.R.

A State of T.N. and Another vs. S. V. Bratheep (Minor) and ..
Others, (2004) 4 SCC 513, this Court reiterated the same
reasoning as stated in State of Punjab (supra).

16. In Ajit Singh and Others (II) vs. State of Punjab and
•
Others, (1999) 7 SCC 209, Constitution Bench of this Court in
8 paragraph 28 has held that Article 16(4) is only an enabling
provision which reads as under:

"On the face of it, the above language in each of Articles
16(4) and 16(4-A) is in the nature of an enabling provision
c and it has been so held in judgments rendered by
Constitution Benches and in other cases right from 1963."

17. Learned counsel for the appellants next contended that,
inasmuch as even in All-India Entrance Examination for Post-
Graduate Courses, the Government of India itself has made a
D
provision for reservation for SC/ST candidates, the State of
Haryana is bound to follow the same and issue appropriate ~

orders/directions providing reservation in the Post-Graduate
Courses. He further contended that the prospectus de hors any
provision for reservation is bad and is liable to be quashed. In
E our view, this contention is also liable to be rejected. It is true
that Government of India itself has made a provision for
reservation of SC/ST categories. This was a decision by the
Government of India and it is applicable in respect of All-India
Entrance Examination for MD/MS/PG Diploma and MOS
F Courses, and reservation for SC/ST candidates in All-India
quota for PG seats. However, the same cannot automatically
be applied in other selections where State Governments have
power to regulate. In fact, the Government of Haryana, in the ..
counter affidavit before the High Court, explained their position
G that according to them, the matter regarding reservation of
seats in the PG Courses has been considered by the State
Government from time to time and it has been decided that !
keeping in view the recommendations of the Medical Council
of India and precedents in the other States, reservation of SC/
H ST in PG Courses is neither feasible nor warranted, as there
DR. GULSHAN PRAKASH & ORS. v. STATE OF 17
HARYANA & ORS. [P. SATHASIVAM, J.]
, is already a reservation of 50 per cent of the total se.ats in MD/ A
MS/PG Diploma and MOS Course in the institutions of the State
of Haryana on all-India basis entrance examination, being
conducted by AllMS, New Delhi, and that the appellants had
already availed the benefit of reservation of seats in their
qualifying examination of MBBS/BDS. They further clarified that 8
only the State Government is the Competent Authority to decide
the reservation in the State. The State Government did not
prescribe any reservation for SC/ST and backward classes,
due to which it was not included in the prospectus. They also
clarified that the petitioners before the High Court were on the c
wrong impression that the Government of Haryana has already
taken a decision to make a reservation in admission to MD/
MS/PG Diploma and MOS Courses for SC/ST category. It was
clarified that the Government of Haryana has never granted the
~
' benefit of reservation to SC/ST category in admission to MD/ D
" MS/PG Diploma and MOS Course. The Government of
i Haryana, for the first ·time, considered and decided on
' 05.04.1988 that there will be no reservation in admission to
PG/Diploma courses. Again, in their letter dated 01.01.1991,
reiterated that Government of Haryana is not in favour of
E
reservation for SC/ST categories in PG/Degree/Diploma
Courses. Again, by the letter dated 26.04.2002 reiterated that
there will be no reservation for SC/ST candidates at Post-
Graduate level admission in PGIMS, Rohtak. It is pointed out
./ that since Government of Haryana has taken a conscious
decision of not to make reservation for SC/ST categories in F
admission at the Post-Graduate level, such a decision of the
Government suffers no infirmity. The other materials placed by

- the State shows that before taking such a decision, they
considered the recommendations of the Medical Council of
India and precedents/decisions in other States and concluded G
that the reservation for SC/ST categories in Post-Graduate
'( Degree and Diploma Courses is not feasible in the State.
Though, even at the Post-Graduate level, reservation for SC/
ST/Backward Community is permissible in view of the specific
decision by the State of Haryana not to have reservation for H
18 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

A Scheduled Castes and Scheduled Tribes at the Post-Graduate '
level, there cannot be any mandamus by this Court as claimed
by the appellants. After all, medical education is an important
issue which should not have any mandatory condition of this
nature which may give rise to a situation against public interest
B if so interpreted by the State Government as State Government
is in a better position to determine the situation and
requirement of that particular State, as mandated by the
Constitution.

18. Finally, learned counsel for the appellants, in more than
c one occasion, relied on an order dated 31.01.2007 of this Court
in Writ Petition (C) No. 138 of 2006, Abhay Nath and Others
vs. University of Delhi and Others.

The operative part of the order is as follows:-
D "
"The Additional Solicitor General pointed out that in the All
India quota of 50% seats, if 22.5% are reserved for SC/
ST students, it would be difficult for the State to give the )

entire percentage to reservation out of the 50% seats left
E for them to be filled up. It is equally difficult for the DGHS
to have entire 22.5% reservation out of the 50% of the
seats allotted to be admitted in the All India Entrance
Examination. Therefore, it is suggested that the Union of
India has decided to provide 22.5% reservation for SC/
ST candidates in All India Quota from the academic year ..
F
2007-2008 onwards. The Union of India seeks clarification
of the order passed in Budhi Prakash Sharma vs. Union
of India passed on 28.02.2005, to the effect that 50% seats
for All India Quota shall exclude the reservation. We review
that order and make it clear that the 50% of the seats to
G be filled up by All India Entrance Examination shall include
the reservation to be provided for SC/ST students. To that
!
extent the order passed on 28.02.2005 is clarified."

The above order makes. it. clear that the directions of this Court
H are applicable to admission on All-India basis whereas the
DR. GULSHAN PRAKASH & ORS. v. STATE OF 19
HARYANA & ORS. [P. SATHASIVAM, J.]
ti same have no bearing on the admissions meant for State A
quota. Inasmuch as the Government of Haryana has not
(
prescribed any reservation for the Post-Graduate Courses,
' n~ither the University nor any other authority be blamed fdr
approving and publishing the prospectus which does not contain
--(
reservation for Post-Graduate Courses. The clarificatory order B
of this Court in Abhay Nath (supra), is applicable for the
Institutes managed/run by the Central Government and unless
the State Government takes any decision for granting
' reservation in MD/MS/PG Diploma and MOS Courses, it cannot
be made applicable. As the State Government is competent c
to make the reservation to a particular class or category, until
it is decided by the State, as being a Policy matter, there cannot
be any direction to provide reservation at the PG level. The
State of Haryana has explained that reservation in under-
Graduate Medical Courses is being provided strictly as per their
D
policy. The Post-Graduate Degree/Diploma in medical
.., education is governed by Medical Council. Even, the Medical
Council of India has not followed strict adherence to the rule of
reservation policy in admission for SC/ST category at the Post-
Graduate level.
E
19. As stated earlier, Article 15(4) is an enabling provision
and the State Government is the best judge to grant reservation
for SC/ST/Backward Class categories at Post-Graduate level
-I
in admission and the decision of the State of Haryana not to
- make any provision for reservation at the Post-Graduate level F
suffers no infirmity. In our view, every State can take its own
decision with regard to reservation depending on various
' factors. Since the Government of Haryana has decided to grant
reservation for SC/ST categories/Backward Class candidates
in admission at MBBS level i.e. under graduate level, then it G
does not mean that it is bound to grant reservation at the Post-
"! Graduate level also. As stated earlier, the State Government,
in more than one communication, has conveyed its decision
that it is not in favour of reservation for SC/ST/Backward
Classes at Post-Graduate level. In such circumstances, Court H
20 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

..
A cannot issue mandamus against their decision and their
prospectus also cannot be faulted with for not providing
•
reservation in Post-Graduate Courses. However, we make tt '
clear that irrespective of above conclusion, State of Haryana
is free to reconsider its earlier decision, if they so desire, and
B circumstances warrant in the future years.

20. In the result, the Civil Appeal as well as the Writ Petition
fail and the same are dismissed accordingly with no order as
to costs.
c N.J. Appeal and writ petition dismissed.