ivil Appeal No 2792 of 1988 Etc
From the Judgment and Order dated 2771988 of the Bombay High Court in WP No 3264 of 1988
G Ramaswamy Additional Solicitor General TR Andya rujuna VV Vaze VM Tarkude DN Misra MD Siodia Pinaki Misra PH Parekh Ms Sunita Sharma AM Khanwil kar AS Bhasme Dalveer Bhandari Vijay Thorat Raian Karanjawala Mrs Manik Karanjawala Ms Meenakshi Arora VD Khanna Rameshwar Nath BR Agarwal PK Pillai PN Gupta Shri Narain Madhuri Gokhale Prangalia and N Nettar for the appearing parties
The Judgment of the Court was delivered by DUTT J
The principal point involved in these appeals relates to the constitutional validity of rule 4A of the Rules flamed by the Bombay Municipal Corporation for admis sion to post graduate degree and diploma courses in its medical colleges framed on June 18 1988 and rule 5 framed under the Government Resolution dated June 18 1971 for admission to the Government Medical College both the rules providing for collegewise institutional preference for admission in the MD Course
By the impugned judgment the High Court allowed the writ petitions out of which these appeals arise and struck down the impugned rule 4A in whole and rule 5 wrongly stated as rule 6 in the High Court judgment in so far as it applies to the Government Medical College in the city of Bombay as discriminatory and viola tive of Article 14 of the Constitution and accordingly invalid
Rule 4A is as follows 4
PREFERENCE A While selecting candidates for admission to the postgraduate courses preference will be given in the following order 922 a Candidates applying for admission at the parent institution
Note Parent institution means the medical college at which the candidate has passed his qualifying examination
b Candidates who have graduated from other Municipal Medical Colleges in Brihan Mumbai
 Relevant portion of rule 5 framed under the Government Resolution dated June 18 1971 reads as follows  5          
While selecting from amongst eligi ble candidates preference will be given to the students of that college ie who passed their final MBBS Examination from that college in Broad specialities and their ancillary discipline
 There are four medical colleges in the city of Bombay and affiliated to the University of Bombay
Of these four medical colleges three are run and conducted by the Bombay Municipal Corporation namely Lokmanya Tilak Memorial Medical College LTMMC Seth GS Medical College GSMC and Topiwalla National Medical College TNMC
The only college that is being run by the Maharashtra Government in the city of Bombay is Grant Medical College GMC
It is not necessary to state in details the facts leading to the filing of the writ petitions before the High Court out of which these appeals arise
Suffice it to say that some candidates who were not admitted in the MD Course in the respective colleges from which they had passed their MBBS Examination were not also admitted in the other medical colleges in the city of Bombay in view of collegewise institutional preference as provided by rule 4A in respect of three Municipal Colleges and by rule 5 relating to GMC the Maharashtra Government College
The High Court as stated already struck down rule 4A and rule 5 in part and allowed the writ petitions
Hence these appeals by special leave
It is Urged by Mr G Ramaswamy the learned Additional Solicitor General that this Court in Dr Pradeep Jain vs Union of India  Ors  has given sufficient indication of its approval 923 of collegewise institutional preference
While the learned Additional Solicitor General frankly concedes that he is not in a position to support cent percent institutional prefer ence or reservation of seats for admission in the MD Course in the Municipal Colleges and the Government College in the city of Bombay such preference or reservation in respect of certain percentage of seats is quite permissible and will not be hit by the provision of Article 14 of the Constitution
In Pradeep Jain s case the question that has been considered by this Court as noted by Bhagwati J as he then was is whether consistently with the constitutional values admissions to a medical college or any other insti tution of higher learning situate in a State can be confined to those who have their domicile within the State or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those who do not possess domicile or residential qualification within the State irrespective of merit
The question that has been formulated and consid ered does not show on the face of it that collegewise institutional preference was also involved as a part of the question
It has been ruled in Pradeep Jain s case that effort must always be to select the best and most meritori ous students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and that it would be against na tional interest to admit in medical colleges or other insti tutions giving instruction in specialities less meritorious students when more meritorious students are available
So wholesale reservation on the basis of domicile or residen tial requirement within the State or on the basis of insti tutional preference for students who have passed the quali fying examination held by the University or the State ex cluding all students not satisfying this requirement re gardless of merit has been condemned
The Court took the view that reservation of seats based on residential require ment within the State or on institutional preference should in no event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservation validly made the 70 per cent reserva tions needs to be reduced if the Indian Medical Council determines a shorter outer limit
The institutional preference that has been referred to in the observation of Bhagwati J does not at all relate to collegewise institutional preference with which we are concerned
The learned Additional Solicitor General has however placed strong reliance on the following observation made by Bhagwati J in Pradeep Jain s case which is ex tracted below 924 We are therefore of the view that so far as admissions to post graduate courses such as MS MD and the like are concerned it would be eminently desirable not to provide for any reservation based on residence re quirement within the State or on institutional preference
But having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses a certain percentage of seats may in the present circumstances be reserved on the basis of institutional preference in the sense that a student who has passed MBB S course from a medical college or university may be given preference for admission to the post graduate course in the same medical colleges or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post graduate course
This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course
But even in regard to admis sions to the post graduate course we would direct that so far as super specialities such as neuro surgery and cardiology are concerned there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis
 It is urged by the learned Additional Solicitor General that in Pradeep Jain s case collegewise institutional pref erence has been recognised and upheld as is apparent from the above observation particularly from the observation a certain percentage of seats may in the present circum stances be reserved on the basis of institutional prefer ence in the sense that a student who has passed MBBS Course from a medical college or University may be given preference for admission to the post graduate course in the same medi cal colleges or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats avail able for admission to the post graduate course
 It is true the expression institutional preference has been used in the said observation in respect of a medical college or a university but we do not think that in making that observa tion Bhagwati J had in his mind 925 collegewise institutional preference
Any observation in a judgment has to be read and understood in the context of facts of that particular case in respect of which such observation has been made
As has been pointed out the question that has been considered in Pradeep Jain s case relates to reservation of seats in medical colleges on the ground of domicile or residential qualification within the State irrespective of merit
It was not the case of anybody that reservation of seats
should be made on the ground of collegewise institutional preference
The institutional preference that was considered in the case was university wise institutional preference and not collegewise institu tional preference
It is also apparent from the judgment of Amarendra Nath Sen J who delivered a separate but concur ring judgment that the Court had no occasion to consider the question of collegewise institutional preference in matters of admission to MD Course
In the circumstances we are unable to accept the contention of the learned Addi tional Solicitor General that this Court in Pradeep s Jain s case has upheld or recognised collegewise institutional preference of seats in medical colleges for admission in MD Course
The position is clarified in a subsequent decision of this Court in Nidamarti Mahesh Kumar vs State of Maharashtra and others  which related to the constitu tional validity of regionwise reservation of seats in medi cal colleges
It has been observed by Bhagwati CJ that where the region from which the students of a university are largely drawn is backward either from the point of view of opportunities for medical education or availability of competent and adequate medical services it will be consti tutionally permissible without violating the mandate of the equality clause to provide a high percentage of reservation or preference for students coming from that region because without reservation or preference students from such back ward region will hardly be able to compete with those from advanced regions since they would not have adequate oppor tunity for development so as to be in a position to compete with others
Further it has been observed that it would not be unconstitutional for the State to provide for reservation or preference in respect of a certain percentage of seats in the medical college or colleges in each region in favour of those who have studied in schools or colleges within that region and even if the percentage stipulated by the State Government is on the higher side it would not fall foul of the constitutional mandate of equality
In respect of such reservation of preference the reasons that have been given are that it would cause considerable hardship and incon 926 venience if students residing in the region of a particular university are compelled to move to the region of another university for medical education which they might have to do if selection for admission to the medical colleges in the entire State were to be based on merit without any reserva tion or preference regionwise
There may be a large number of students who if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit may not be able to go to such other medical college on account of lack of resources and facilities and in the result they would be effectively deprived of real opportu nity for pursuing the medical course even though on paper they would have got admission in the medical college
Fur ther it has been pointed out that some difficulty would arise in case of girls because if they are not able to get admission in the medical college near the place where they reside they might find it difficult to pursue medical educa tion in a medical college situated in another region where hostel facilities may not be available and even if hostel facilities are available the parents may hesitate to send them to the hotels
Even with regard to regionwise reservation of certain percentage of seats in medical colleges except for the reasons mentioned above this Court in Nidamarti s case has turned down the contention that the provision of the im pugned rule that is students from a school or college situate within the jurisdiction of a particular university would not be eligible for admission to medical college or colleges situate in the jurisdiction of another university but would be confined only to medical college or colleges within the jurisdiction of the same university was intended to give protection to students in certain rural areaS the population of which is socially economically and education ally backward for otherwise they would have not been able to compete with students from advanced regions and conse quently the classification made by the provision was con stitutionally permissible
Thus except in certain circum stances even regionwise reservation of seats in medical colleges has not been approved by this Court
In Pradeep Jain s case merely because the expression institutional preference has been used with reference to a student pass ing the MBBS Course from a medical college or a university it does not necessarily follow that the Court had in its contemplation or was laying down collegewise institutional preference
In support of the contention that collegewise institu tional preference or reservation of seats was in the contem plation of this Court reliance has been placed on behalf of the appellants on an earlier 927 decision of this court in Jagdish Saran  Ors
vs Union of India  Ors
  In that case of the three learned Judges Krishna Iyer J delivered the judgment for himself and for Chinnappa Reddy J Pathak J as he then was agreed with the judgment of Krishna Iyer J that the writ petition should be dismissed but he gave his own reasons
The reasons of Pathak J are inter alia con tained in the following observations It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post graduate studies
There is the strong argument of convenience of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic and psychological pressures
But much more than convenience is involved
There are all the advantages of a continuing frame of educational experience in the same educational institution
It must be remembered that it is not an entirely differ ent course of studies which is contemplated it is a specialised and deeper experience in what has gone before
The student has become familiar with the teaching techniques and standards of scholarship and has adjusted his responses and reactions accordingly
The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience
Not infrequently some of the same staff of Professors and Readers may lecture to the post graduate classes also
Over the under graduate years the teacher has come to understand the particular needs of the student where he excels and where he needs an especial encouragement in the removal of deficiencies
In my judgment there is good reason in an educational institution extending a certain degree of preference to its graduate for admission to its post graduate classes
The preference is based on a reasonable clas sification and bears a just relationship to the object of the education provided in the post graduate classes
The concept of equality codified in our constitutional system is not violated
It has been said sometimes that classification contradicts equality
To my mind classification is a feature of the very core of equality
It is a vital concept in ensuring equality for those who are similarly situated alone from a class between them selves and the classification is not 928 vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law
An institutional preference of the kind considered here does not offend the constitutional guarantee of equality
 The above observations or reasons should not be read or understood dehors the facts and the questions involved for the determination of this Court
The facts of that case will be stated presently
The University of Delhi has many post graduate and diploma courses in the faculty of medicine providing in all 250 seats
The three medical colleges in Delhi turn out annually 400 medical graduates who get house jobs in the local hospitals and qualify themselves for postgraduate course
As the graduates from the Delhi Univer sity could not be accommodated fully or even in part for the post graduate course in Medicine and as these graduates were not considered for admission into other universities Delhi University had earmarked some seats at the post graduate level in Medicine for the medical graduates of Delhi Univer sity
By the impugened rule 70 per cent of the seats at the post graduate level was reserved for Delhi graduates and 30 per cent of the seats was kept open to all including gradu ates of Delhi
It was therefore not a case of collegewise reservation but 70 per cent reservation of seats in the medical colleges under the Delhi University for the medical graduates of that University
The question of collegewise institutional preference or reservation of seats did not at all arise nor was it argued or sought to be decided in Jagdish Saran s case
It is true that the observation of Pathak J without reference to the context of the facts and the question involved in that case may support to some extent the contention of the appellants but the contention has to be rejected on a reference to the facts and the question involved in that case
It is however submitted by the learned Additional Solicitor General that there are some special facts and circumstances which justify collegewise reservation as provided by the impugned rules 4A and 5
It is stated by him that while the theoretical examinations in MBBS Course are conducted by the University the practical examinations involving 50 per cent of the total marks are held by the individual colleges
Counsel submits that in such circum stances the merits of the candidates passing the MBBS Exami nation from these four colleges are difficult to be compared and evaluated for the purpose of admission in the MD Course
This submission has also been made by Mr Baze learned Counsel appearing on behalf of the University of Bombay
929 We regret we are unable to accept such a contention
It is not disputed that in each college the practical examina tions are conducted by a set of four examiners consisting of one internal examiner from the same college one external examiner from one of the other three colleges and two exter nal examiners from outside Bombay
Thus excepting one internal examiner three other examiners are external exam iners and all those examiners are presumably appointed by the University
These examiners are of high academic quali fications and we fail to understand why they would deviate from the standard prescribed by the University for the assessment and evaluation of the merits of the students in the practical examinations
There is therefore no sub stance in the contention that the standard of examination and evaluation of the merits of students in such practical examinations differ from college to college
Indeed no material has been placed before us in support of the conten tion that different standards are adopted by the colleges in MBBS practical examinations
Equally untenable is the con tention that because of institutional preference the dif ferent marks given by different colleges do not affect the students as it is the relative merit of the student in the same college which matters in the selection of post graduate students
We do not find any justification for the apprehen sion that if the institutional preference is removed and all the candidates from the University are pooled together a process of dilution and undesirable racing are likely to start making a mockery of the examination system and creat ing mad race of overtaking the other colleges
This appre hension has been expressed by the Dean of Lokmanya Tilak Memorial Medical College in his
affidavit filed before the High Court
Another ground in justification of collegewise institu tional preference which has been relied on by the Dean in his affidavit and urged before us on behalf of the appel lants is that the facilities differ from college to college in respect of the pattern of patients coming to the hospital attached to each college
By way of illustration it is stated that in the hospital attached to Lokmanya Tilak Memorial Medical College there is maximum load of trauma cases accidents and injuries the number of such cases is much higher than that in the hospital attached to the three other colleges
The under graduate students in Lokmanya Tilak Memorial Medical College will have a wider exposure to these cases and will be far more suitable for seat in the post graduate course in Surgery where he will have to actu ally deal with these cases than a student of any other college
Even assuming that the facts stated above are correct we do not think that the same constitute any ground in support of institutional preference
It is the university which is required to maintain a standard in respect of the 930 subjects in the colleges affiliated to it
It is not the case of the University that the standard prescribed by it is not maintained in different colleges or that any particular college is higher in standard in a particular subject than that in another college
It may be that the number of acce dent and injury cases in the hospital attached to Lokmanya Tilak Memorial Medical College is higher than the number of such cases in the hospitals attached to other colleges but that does not prove or lead to the conclusion that the students of other colleges will be deficient in surgery or less meritorious than the students of Lokmanya Tilak Memori al Medical College
The contention in this regard is without substance and is rejected
Let us now examine the question of collegewise institu tional preference from the point of view of Article 14 of the Constitution
By the impugned rules a classification has been sought to be made with the students of each partic ular college passing their MBBS Examination from that col lege to the exclusion of all other students obtaining their MBBS Degree from the other colleges
In order that a classi fication is a permissible one within the meaning of Article 14 of the Constitution two tests are to be satisfied namely 1 that there is an intelligible differentia which distinguishes persons grouped together from those who are left out of the group and 2 that there is a rational nexus to the object sought to be achieved by the impugned rules
The object sought to be achieved by the impugned rules is obviously to prefer merit for the post graduate course and to exclude less meritorious candidates
It will be presently demonstrated that both the tests are not satis fied in the instant case
In this connection we give below following tabular statement showing the number of seats available in each of the said four colleges in some of the disciplines
COLLEGE LTMMC TNMC GSMC GMS Students Intake 100 100 100 DISCIPLINE 1
MD Obs  Gyn 2 1 5 3 IR 2
MS Orthopaedics 2 1 2 1 3
MS General Surgery 4 2 3 3 IR 4
MD General Medicine 4 3 3 3 IR 931 In Seth GS Medical College GSMC there are five seats in Obstetrics and Gynaecology and one seat in Topiwala Nationl Medical College TNMC
In view of the impugned rules providing collegewise institutional preference five seats in Obstetrics and Gynaecology in Seth GS Medical College were allotted to five of its students
Of these five students Dr Ganpat Sawant secured 150 marks and the four other candidates secured marks between 118 and 128 in the MBBS Examination
The respondents Dr Anjali Deokumar Thuk ral and Dr Sumeet Godambe both students of Topiwala Na tional Medical College obtained respectively 140 and 143 marks in the MBBS examination
They however were not admitted in their college for there was only one seat in Obstetrics and Gynaecology and that seat was alotted to a student of that college who secured 156 marks in the MBBS examination
Thus although Dr Anjali Deokumar Thukral and Dr Sumeet Godambe secured more marks than the students admitted in the post graduate course in Obstetrics and Gynaecolocy in the said GS Medical College except the said Dr Ganpat Sawant they were refused admission in view of collegewise institutional preference
Similarly in respect of other disciplines many meritorious students could not get admission even though they secured higher marks than those admitted in the post graduate degree course by virtue of the impugned rules
Thus there is a patent discrimina tion inasmuch as students obtaining lesser marks have been preferred to those obtaining higher marks
There is no intelligible differentia for the classification by way of collegewise institutional preference as provided by the impugned rules distinguishing the preferred candidates in respect of each college from those excluded from such clas sification
By such classification or collegewise institu tional preference merit has been sacrificed far less it has been preferred
When the university is the same for all these colleges the syllabus the standard of examination and even the examiners are the same any preference to candidates to the post graduate degree course of the same university except in order of merit will exclude merit to a great extent affecting the standard of educational insti tutions
In such circumstances collegewise institutional preference cannot be supported and it has already been noticed that this Court has not approved of such preference at all
State of Rajasthan and another vs Dr Ashok Kumar Gupta and others  is a case of college based institutional preference in respect of five medical colleges in Rajasthan under the same University
The impugned Ordi nance of the University provided for addition of 5 per cent of the aggregate of marks which work out to be 932 to 1375 marks by way of institutional preference in the sense of preference dependant on the particular medical college at which the concerned candidate has passed his final MBBS Examination
This collegewise institutional preference has been disapproved by this Court in that case and the impugned Ordinance has been struck down
The learned Additional Solicitor General sought to distinguish Dr Ashok Kumar Gupta s case from the instant case
We do not think that the said case is distinguishable from the case with which we are concerned inasmuch as in both the cases the question of collegewise or college based institutional preference is involved
It is stated that mode or method adopted for giving collegewise institutional preference in Dr Ashok Kumar Gupta s case is different from the instant case but in our opinion nothing turns out of that
So far as educational institutions are concerned unless there are strong reasons for exclusion of meritorious candidates any preference other than in order of merit will not stand the test of Article 14 of the Constitution
So the impugned rules are discriminatory and do not satisfy the tests of reasonable classification and as much cannot be sustained
It is next contended on behalf of the appellants that as the Bombay Municipal Corporation has to spend a lot of money for the running of the three colleges sponsored by it seats for the postgraduate course should be reserved in these three colleges for the students passing the MBBS Examination from any of these colleges
If such reservation is allowed the students of the Maharashtra Government College namely the Grant Medical College will not get any admission in any of the three Municipal Colleges even if the students or some of them passing the MBBS Course from the Government College are more meritorious than the students for whom the seats will be kept reserved in the Municipal Colleges
It is urged that it will not be a case of collegewise institution al preference so far as the Municipal Colleges are concerned and there should be no objection for the Bombay Municipal Corporation to give preference to the students of the Munic ipal Colleges of course to the exclusion of the students of the Government College
This contention in our opinion is without any substance
It may be that the Bombay Munici pal Corporation has to spend a lot of money for the colleges run by it but that will be no ground for making a discrimi nation between the students of the Municipal Colleges and those of the Government College affiliated to the same university for the purpose of admission in the post gradu ate degree course
Such discrimination will not serve any object which can be justified on any rational basis
Such reservation or preference also cannot be allowed for if allowed rule 5 of the Rules framed under the 933 Government Resolution dated June 18 197 1 will survive inasmuch as the students of the Grant Medical College will only be admitted in the MD Course
But those students who could not be admitted in that College will not be eligible for admission in the Municipal Colleges
We are unable to permit such discrimination in the matter of admission in the MD Course
Another ground on which collegewise institutional preference has been sought to be justified by the learned Additional Solicitor General is on the basis of institutional continui ty
In support of this ground of institutional continuity the learned Additional Solicitor General has placed much reliance on the observations of Pathak J in Jagdish Sa ran s case which has already been extracted above
It was not a case of collegewise institutional preference or insti tutional continuity and the said observations should not be understood in that sense but in the sense of institutional continuity in the same university
After giving our thoughtful consideration to the question of collegewise institutional preference we are of the view that such preference or reservation of seats is not permissible and the High Court has rightly struck down both the impugned rule 4A flamed by the Bombay Municipal Corpo ration and part of rule 5 flamed under the Government Reso lution that is to say only in respect of its application to the Grant Medical College in the city of Bombay relating to admission to post graduate MD Course
We however make it clear that the students who have been admitted to post graduate MD Course pursuant to the impugned rules their admission shall not be interfered with or disturbed
At this state we may consider the submission of Mr Lalit learned Counsel appearing on behalf of the applicants in CMP No 20748 of 1988 praying for their impleadment as party respondents to Civil Appeal No 2792 of 1988
We do not think that any useful purpose will be served by implead ing them as party respondents to the appeal
The only prayer that has been made by Mr Lalit is that the applicants who have passed the diploma course from the Municipal Colleges should be held to be eligible for admission in the MD Course with credit for the diploma course in any of the Municipal Colleges
We are told by the learned Counsel appearing for the State Government and the Bombay Municipal Corporation that if the impugned rules are struck down they will have to frame fresh rules consistent with the judgment of this Court and as we have directed not 934 to disturb admission of the candidates in the post graduate MD Course pursuant to the impugned rules we consider the prayer made by the applicants as quite reasonable and accordingly direct that the applicants who have passed the diploma course in the Municipal Colleges after passing the MBBS Examination will be eligible for admission in the post graduate MD Course in any one of the Municipal Col leges with credit for the diploma course
Mr Tarkunde learned Counsel appearing on behalf of the respondents writ petitioners submits that the cases of admission of some of the respondents who have not been admitted to the postgraduate degree course in certain spe cialities of their choice in view of the impugned rules may be considered by the State of Maharashtra and the Municipal Corporation of Greater Bombay in case seats are available either in the Municipal Colleges or in the Grant Medical College which is a Government College
In our opinion the prayer is quite reasonable and the State of Maharashtra and the Bombay Municipal Corporation are directed to consider the question of their admission provided seats are avail able
The names of the said respondents and the respective disciplines of their choice are given below 1
Dr Anjali Deokumar Thukral MD Gynaecology and Obstetrics 2
Dr Atul Jaywant Galtonde MS Orthopaedics 3
Dr Naresh Kanayalal Navani MS General Surgery 4
Dr Anna Koshy Joseph MD General Medicine 5
Dr Vaishali Ramnik Doshi MD General Medicine Before we part with these cases we may dispose of one submission made on behalf of the appellants
Our attention has been drawn to the fact that while striking down the impugned rule 4A and impugned rule 5 in part the High Court has directed the appellants to frame rules adopting certain alternative methods for dismission in the post graduate MD Course for the next year as stated in the judgment
The said directions appear to be in the nature of suggestions by the High Court and the appellants will be free to frame rules for admission in the post graduate MD Course in the said four colleges in the city of Bombay in conformity with the provision of Article 14 of the Constitution and in the light of the judgment of this Court and in 935 framing the rules the appellants may take into considera tion the suggestions of the High Court
In the result Subject to the directions given above the appeals are dismissed
There will however be no order as to costs
SPECIAL LEAVE PETITION CML NO
8883 OF 1988 WRIT PETITION CIVIL NO
1253 OF 1988 For the reasons aforesaid Special Leave Petition and Writ Petition fail and are dismissed without any order as to costs
YL Ap peals dismissed


Summary:
This Petition under Article 32 of the Constitution has been filed by one Madhu Mehta National Convenor of Hindusta ni Andolan and a Social worker praying for a writ of Habeas Corpus or an appropriate direction in regard to one Gyasi Ram so Param aged 60 years who is stated to be waiting for a decision on his mercy petition by the President of India for about 8 or 9 years
He is stated to be confined in the Death Cell Central Jail Jhansi
The Circumstances under which the Writ Petition has been filed may be stated thus Gyasi Ram was convicted under Section 302 IPC
and sentenced to death by Sessions Judge Jhansi on October 19 1978 for committing the Cold blooded murder of one Bhagwan Singh a Government servant
One Daya Ram was also associat ed with him for the Commission of the said Crime who had escaped
The death sentence awarded to Gyasi Ram was con firmed both by the High Court as also by this Court
On 18121981 the wife of Gyasi Ram filed a mercy Petition before the President of India which remained undis posed till the filing of this Writ Petition
It appears that mercy petitions presented by Gyasi Ram on 6101981 and 26111981 were rejected by the Governor of the State and were received in the Ministry of Home Affairs on 5121981 for consideration by the President of India
On 2141983 the mercy petitions were put up for orders before the President and the President returned the file for further consideration
In the meantime information was received by the Govern ment from the Registry of this Court that Daya Ram so Moolchand had also 775 filed a Special Leave Petition against the Judgment dated 17101984 of the Allahabad High Court whereby the death sentence imposed upon him was confirmed
Subsequently two mercy petitions were filed on his behalf which were forward ed to the Governor of the State for consideration in the first instance on 9484 and 9885 which remained undis posed
In the Counter affidavit filed on behalf of the Union of India attempt has been made to explain this long delay occurred in the disposal of the mercy petitions the main reason amongst others that is attributed to the long delay in disposing of the mercy petitions of Gyasi Ram is the pendency of the mercy petitions filed by Daya Ram with the Governor of the State in regard to which the Union is stated to be in touch and Correspondence with the State Government
It is said that the decision on the mercy Peti tion moved on behalf of Daya Ram has a direct bearing to the decision to be taken on the petitions moved on behalf of Gyasi Ram
It was only on 15389 the Union Government had been informed on telex that the mercy petition of Daya Ram has since been disposed of
The Sessions Judge Jhansi had visited the said convict in Jail on 22588 and had sent a report to the effect Gyasi s mental state is such that he might commit suicide by hanging his head on the iron grill of his ceil if a decision on his mercy petition is not taken soon
 Thereafter the instant Petition has been filed
The question that arose for determination by this Court in the facts and Circumstances of the case was whether by reason of the long delay in the execution of the death sentence awarded to Gyasi Ram he was entitled to any commutation alteration in his sentence in view of this Court s Judgments in TV Vatheeswaran vs State of Tamil Nadu and Sher Singh  Ors
vs The State of Punjab  Allowing the Writ Petition this Court HELD Undue long delay in execution of the sentence of death would entitle the condemned person to approach this Court or to he approached under Article 32 of the Constitu tion but this Court would only examine the nature of delay caused and circumstances that ensued after the sentence was finally confirmed by the Judicial process and will have no jurisdiction to re open the conclusions reached by the Court while finally maintaining the sentence of death
782G The Court is entitled and indeed obliged to consider the question 776 of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should he carried out or should he altered into imprisonment for life
No fixed period of delay can he considered to be decisive
782H 783A Speedy trial in Criminal cases though may not he a fundamental right is implicit in the broad sweep and con tent of Article 21
Speedy trial is part of one s fundamen tal right to life and liberty
783B There is no justifiable ground for keeping the mercy petition of Daya Ram and Gyasi Ram pending for such a long time
In the half yearly return dated 8th October 1985 and thereafter in the successive half yearly returns of the Uttar Pradesh Government upto 16th Jan 1989 year after year the Mercy Petitions of Daya Ram were shown to have remained unattended and undisposed and consequently the Mercy Petition made to the President of India by Gyasi Ram was also undisposed
781B The time and the manner in which the Mercy Petition has been dealt with in this case in respect of Gyasi Ram make sad reading and speak of the deplorable lack of speed and promptitude which in these matters should he there
In the meantime there is no denying the fact that Gyasi Ram has suffered a great deal of mental pain and agony
781C The Convict has suffered mental agony of living under the shadow of death for long far too long
He should not suffer that agony any longer
783D The Court directed that the death sentence imposed on Gyasi Ram be altered to imprisonment for life
783E Bachan Singh vs State of Punjab and Smt
Triveniben vs State of Gujarat   referred to