Case: Neil Aurelio Nunes and Ors Vs. Union of India and Ors


Decision:
1[ds]2. Some of the salient facts that have led to the implementation of OBC reservation in AIQ seats are being adverted for setting out the broad contours of the controversy. While we have discussed in detail the history of the AIQ and the evolution of an All-India common entrance examination in Section D.2, it is sufficient to highlight that the scheme of AIQ seats was devised by this Court in Dr Pradeepv. Union of India(1984) 3 SCC 654  to provide domicile free seats in State run medical and dental institutions. The AIQ scheme was further developed by this Court in Dinesh Kumar (I) v. Motilal Nehru Medical College (1985) 3 SCC 22  and Dinesh Kumar (II) v. Motilal Nehru Medical College (1986) 3 SCC 727 . Presently, under the AIQ scheme, 15 percent UG seats and 50 percent PG seats in State–run institutions are surrendered by the states to the AIQ. The remaining seats in the State institutions are reserved for candidates domiciled in the respective States.4. In Abhay Nath v. University of Delhi (2009) 17 SCC 705, this Court held that reservations for Scheduled Caste (SC) and Scheduled Tribe (ST) candidates are permissible in the AIQ seats. The Central Educational Institutions (Reservation in Admissions) Act 2006 (Act of 2006), which came into effect on 3 January 2007, was enacted to provide for reservation for students belonging to theSCs, STs and OBCsin Central educational institutions. The Act of 2006 provided that 15 percent seats shall be reserved for SCs, 7.5 percent seats for STs, and 27 percent seats for OBCs in Central educational institutions. However, reservation for OBCs was not extended to State contributed seats for AIQ in State-run institutions.This is not a novel argument. There has been a longstanding debate over whether reservation for any class impinges on the idea of merit. In the Constituent Assembly Debates on draft Article 10, which has been incorporated as Article 16 of the Constitution, some members raised concerns on the inclusion of clause (3) to draft Article 10 (now Article 16 (4) of the Constitution) which provided that the State is empowered to make reservation in appointments or posts in favour of any backward class of citizens who, in the opinion of the State, is not adequately represented in the services under the State. Certain members of the Constituent Assembly argued for the deletion of clause (3). For instance, Shri Loknath Misra stated that such a provision puts, a premium on backwardness and inefficiency and no citizen had a fundamental right to claim a portion of State employment, which ought to go by merit alone. Shri Damodar Swarup Seth argued that reservation results in the very negation of efficiency and good Government and appointments should be made on merit and qualification. However, the Constituent Assembly rejected these claims and adopted clause (3) of draft Article 10. Although there was debate on the meaning of backward classes, it was felt that there must be a provision that enables entry of those communities into administration since they were deprived of such access in the past and formal equality of opportunity would not suffice (Volume 7, Constituent Assembly of India Debates,30 November 1948, available at https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-11-30). However, the view that merit or efficiency in service is distinct from concerns of advancement of backward classes persisted for some members.In MR Balaji v. State of Mysore 1963 Supp (1) SCR 439, a Constitution Bench of this Court observed that Article 15 (4) is an exception to Article 15 (1), which was introduced because the interests of the society at large would be served by promoting advancements of the weaker elements in the society. (Ibid, paragraph 31) However, since Article 15 (4) (or reservation) was considered at odds with the notion of formal equality under Article 15 (1), which is broadly understood as complying with the principle of merit, this Court observed that there should be a cap on reservations, which it specified generally should be 50 percent. (Ibid, paragraph 34) This Court stated:32. …Therefore, in considering the question about the propriety of the reservation made by the impugned order, we cannot lose sight of the factthat the reservation ismade in respect of higher university education. The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by whole-sale reservation of seat in all technical, Medical or Engineering colleges or institutions of that kind. Therefore, considerations of national interest and the interests of the community or society as a whole cannot be ignored in determining the questionas to whether thespecial provision contemplated by Article 15(4) can be special provision which exclude the rest of the society altogether. In this connection, it would be relevant to mention that the University Education Commission which considered the problem of the assistance to backward communities, has observed that the percentage of reservation shall not exceed a third of the total number of seats, and it has added that the principle of reservation may be adopted for a period of ten years (p. 53).19. This view was followed by this Court in subsequent judgements where a special provision made for the benefit of a class was seen as a deviation from the principle of formal equality T.(1964) 4 SCR 680 ; CA(1968) 1 SCR 721.  However, the dominant view of this Court was challenged by the Justice R Subba Rao in his dissent in T.where the learned judge stated that Article 16 (4) is not an exception but rather a facet of Article 16 (1), which seeks to redress the historical disadvantage suffered by certain communities. Justice Subba Rao observed thus:26. Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone, all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only an utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid. To make my point clear, take the illustration of a horse race. Two horses are set down to run a race —one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced clause (4) in Article 16. The expression nothing in this article is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the article.20. The view expressed by Justice Subba Rao was adopted by this Court in State of Kerala v. NM Thomas (1976) 2 SCC 310,  which transformed the equality jurisprudence in India from that of formal equality to substantive equality; thus, also changing our understanding of reservations. Chief Justice AN Ray writing the judgement of this Court held:44. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of Backward Classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and tribes, who are said by this Court to be Backward Classes, can maintain minimum necessary requirement of administrative efficiency, not only representation but also preference may be given to them to enforce equality and to eliminate inequality. Article 15(4) and 16(4) bring out the position of Backward Classes to merit equality. Special provisions are madefor the advancement ofBackward Classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic concept equality is equality of opportunity for appointment. Preferential treatment for members of Backward Classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 could not have a different content from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the constitutionally permissible object. Preferential representation for the Backward Classes in services with due regard to administrative efficiency is permissible object and Backward Classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection are within the concept of equality.The majority of the judges accepted thatspecial provisions (including reservation)made for the benefit of any class are not an exception to the general principle of equality. Special provisions are a method to ameliorate the structural inequalities that exist in the society, without which, true or factual equality will remain illusory. Justice KK Mathew in his concurring opinion observed that while equality under Article 16 (1) is individual-centric (Ibid, paragraph 52) (which was the view of the majority – Justice Mathew and Justice Begs majority opinions, and Justice Khanna and Justice Guptas dissents), the manner in which it is to be achieved is through the identification of groups that do not enjoy equal access to certain rights and entitlements. The learned judge made the following observations:73. There is no reason why this Court should not also require the State to adopt a standard of proportional equality which takes account of the differing conditions and circumstances of a class of citizens whenever those conditions and circumstances stand in the way of their equal access to the enjoyment of basic rights or claims.74. The concept of equality of opportunity in matters of employment is wide enough to include within it compensatory measures to put the members of the Scheduled Castes and scheduled tribes on par with the members of other communities which would enable them to get their share of representation in public service. How can any member of the so-called forward communities complain of a compensatory measure made by the Government to ensure the members of Scheduled Castes and scheduled tribes their due share of representation in public services?75. It is said that Article 16(4) specifically provides for reservation of posts in favour of Backward Classes which according to the decision of this Court would include the power of the State to make reservation at the stage of promotion also and therefore Article 16(1) cannot include within its compass the power to give any adventitious aids by legislation or otherwise to the Backward Classes which would derogate from strict numerical equality. If reservation is necessary either at the initial stage or at the stage of promotion or at both to ensure for the members of the Scheduled Castes and scheduled tribes equality of opportunity in the matter of employment, I see no reason why that is not permissible under Article 16(1) as that alone might put them on a parity with the forward communities in the matter of achieving the result which equality of opportunity would produce. Whether there is equality of opportunity can be gauged only by the equality attained in the result. Formal equality of opportunity simply enables people with more education and intelligence to capture all the posts and to win over the less fortunate in education and talent even when the competition is fair. Equality of result is the test of equality of opportunity.Thus, the learned judge envisaged that equality of individuals is to be achieved by addressing the structural barriers faced by certain classes of citizens, which he called the conditions and circumstances [that] stand in the way of their equal access to the enjoyment of basic rights or claims. Justice Krishna Iyer and Justice Fazal Ali in their concurring opinions went a step further to argue that the content of Article 16 (1) is not individual-centric rather it aims to provide equality of opportunity to sections that face structural barriers to their advancement. Justice Krishna Iyer invoked Article 46 of the Constitution, which although unenforceable, was employed for giving effect to Article 16 (1). In his opinion both Articles 16 (1) and 16 (4) function to equalise group inequalities albeit in different contexts. The learned judge observed thus:137. reservation based on classification of backward and forward classes, without detriment to administrative standards (as this Court has underscored) is but an application of the principle of equality within a class and grouping based on a rational differentia, the object being advancement of backward classes consistently with efficiency. Article 16(1) and (4) are concordant. This Court has viewed Article 16(4) as an exception to Article 16(1). Does classification based on desperate backwardness render Article 16(4) redundant? No. Reservation confers pro tanto monopoly, but classification grants under Article 16(1) ordinarily a lesser order of advantage. The former is more rigid, the latter more flexible, although they may overlap sometimes. Article 16(4) covers all backward classes; but to earn the benefit of grouping under Article 16(1) based on Articles 46 and 335 as I have explained, the twin considerations of terrible backwardness of the type harijans endure and maintenance of administrative efficiency must be satisfied.21. Justice Fazal Ali in his concurring opinion noted that equality of opportunity under Article 16 (1) entails the removal of barriers faced by certain classes of society. They cannot be denied the right to equality and relegated to suffer backwardness only because they do not meet certain artificial standards set up by institutions. Justice Fazal Ali made the following observations:158. It is no doubt true that Article 16(1) provides for equality of opportunity for all citizens in the services under the State. It is, however, well-settled that the doctrine contained in Article 16 is a hard and reeling reality, a concrete and constructive concept and not a rigid rule or an empty formula. It is also equally well-settled by several authorities of this Court that Article 16 is merely an incident of Article 14, Article 14 being the genus is of universal application whereas Article 16 is the species and seeks to obtain equality of opportunity in the services under the State. The theory of reasonable classification is implicit and inherent in the concept of equality for there can hardly be any country where all the citizens would be equal in all respects. Equality of opportunity would naturally mean a fair opportunity not only to one section or the other but to all sections by removing the handicaps if a particular section of the society suffers from the same. It has never been disputed in judicial pronouncements by this Court as also of the various High Courts that Article 14 permits reasonable classification. But what Article 14 or Article 16 forbid is hostile discrimination and not reasonable classification. In other words, the idea of classification is implicit in the concept of equality because equality means equality to all and not merely to the advanced and educated sections of the society. It follows, therefore, that in order to provide equality of opportunity to all citizens of our country, every class of citizens must have a sense of equal participation in building up an egalitarian society, where there is peace and plenty, where there is complete economic freedom and there is no pestilence or poverty, no discrimination and oppression, where there is equal opportunity to education, to work, to earn their livelihood so that the goal of social justice is achieved. Could we, while conferring benefits on the stronger and the more/advanced sections of the society, ignore the more backward classes merely because they cannot come up to the fixed standards? Such a course, in my opinion, would lead to denial of opportunity to the backward classes resulting in complete annihilation of the concept of equality contained in Articles 14 and 16. The only manner in which the objective of equality as contemplated by the founding fathers of our Constitution and as enshrined in Articles 14 and 16 can be achieved is to boost up the backward classes by giving them concessions, relaxations, facilities, removing handicaps, and making suitable reservations so that theweaker sections of thepeople may compete with the more advanced and in due course of time all may become equals and backwardness is banished for ever. This can happen only when we achieve complete economic and social freedom. In our vast country where we have diverse races and classes of people, some of whom are drowned in the sea of ignorance and illiteracy, the concept of equality assumes very important proportions. There are a number of areas in some States like Kashmir, Sikkim, hilly areas of U.P., Bihar and the South, where due to lack of communications or transport, absence of proper educational facilities or because of old customs and conventions and other environmental reasons, the people are bothCould we say that the citizens hailing from these areas should continue to remain backward merely because they fall short of certain artificial standards fixed by various institutions? The answer must be in the negative. The directive principles enshrined in our Constitution contain a clear mandate to achieve equality and social justice. Without going into thevexed question as towhether or not the directive principles contained in Part IV override the fundamental rights in Part III there appears to be a complete unanimity of judicial opinion of this Court that the directive principles and the fundamental rights should be construed in harmony with each other and every attempt should be made by the Court, to resolve any apparent inconsistency. The directive principles contained in Part IV constitute the stairs to climb the high edifice of a socialistic State and the fundamental rights are the means through which one can reach the top of the edifice. I am fortified in my view by several decisions of this Court to which I will refer briefly.22. Even if the judges differed on whether Article 16 (1) is individual-centric or group-centric, they nonetheless accepted that Article 16 (4) is crucial to achieve substantive equality that is envisaged under Article 16 (1). Articles 16 (4), 15 (4), and 15 (5) employ group identification as a method through which substantive equality can be achieved. This may lead to an incongruity where individual members of an identified group may not be backward or individuals belonging to the non-identified group may share certain characteristics of backwardness with members of an identified group. However, this does not change the underlying rationale of the reservation policy that seeks to remedy the structural barriers that disadvantaged groups face in advancing in society. Reservation is one of the measures that is employed to overcome these barriers. The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer.24. The crux of the above discussion is that the binary of merit and reservation has now become superfluous once this Court has recognized the principle of substantive equality as the mandate of Article 14 and as a facet of Articles 15 (1) and 16(1). An open competitive exam may ensure formal equality where everyone has an equal opportunity to participate. However, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system. Special provisions (like reservation) enable such disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensuring substantive equality. The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also includes their social networks and cultural capital (communication skills, accent, books or academic accomplishments) that they inherit from their family [K.V Syamprasad, Merit and caste as cultural capital: Justifying affirmative action for the underprivileged in Kerala, India, Journal for Critical Education Policy Studies, Vol 17, p.50-81 (2019)]. The cultural capital ensures that a child is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their familys standing. This works to the disadvantage of individuals who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities. (Ibid)On the other hand,social networks (based on community linkages) become useful when individuals seek guidance and advise on how to prepare for examination and advance in their career even if their immediate family does not have the necessary exposure. Thus, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as merit reproducing and reaffirming social hierarchies. In BK Pavithrav. Union of India(2019) 16 SCC 129 ,a two-judge Bench of this Court, of which one of us was a part (Justice DY Chandrachud) had observed how apparently neutral systems of examination perpetuate social inequalities. This Court observed:134. It is well settled that existing inequalities in society can lead to a seemingly neutral system discriminating in favour of privileged candidates. As Marc Galanter notes, three broad kinds of resources are necessary to produce the results in competitive exams that qualify as indicators of merit. These are:… (a) economic resources (for prior education, training, materials, freedom from work, etc.); (b) social and cultural resources (networks of contacts, confidence, guidance and advice, information, etc.); and (c) intrinsic ability and hard work… [ Galanter M., Competing Equalities : Law and the Backward Classes in India, (Oxford University Press, New Delhi 1984), cited by Deshpande S., Inclusion versus excellence : Caste and the framing of fair access in Indian higher education, 40 : 1 South African Review of Sociology 127-147.]135. The first two criteria are evidently not the products of a candidates own efforts but rather the structural conditions into which they are borne. By the addition of upliftment of SCs and STs in the moral compass of merit in government appointments and promotions, the Constitution mitigates the risk that the lack of the first two criteria will perpetuate the structural inequalities existing in society.Such a formulation of merit was emphasised by this Court in Pradeep Jain (supra), where it observed:12. But let us understand what we mean when we say that selection for admission to medical colleges must be based on merit. What is merit which must govern the process of selection? It undoubtedly consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic subjects and infinite capacity for hard work, but that is not enough; it also calls for a sense of social commitment and dedication to the cause of the poor. We agree with Krishna Iyer, J., when he says in Jagdish Saran case [(1980) 2 SCC 768  : AIR 1980 SC 820  : (1980) 2 SCR 831 ] : (SCC p. 778, para 21)If potential for rural service or aptitude for rendering medical attention among backward people is a criterion of merit — and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tears — then, surely, belonging to a university catering to a deprived region is a plus point of merit. Excellence is composite and the heart and its sensitivity are as precious in the scale of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases.Merit cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor as the head in assessing the social value of a member of the medical profession. This is also an aspect which may, to the limited extent possible, be borne in mind while determining merit for selection of candidates for admission to medical colleges though concededly it would not be easy to do so, since it is a factor which is extremely difficult to judge and not easily susceptible to evaluation.26. However, after contextualising the meaning of merit, in the next paragraph this Court reverted to equating the selection process adopted for admission to merit. However, irrespective of the true purport of merit, this Court notes that the selection process for admission must satisfy the test of equality. This Court observed thus:13. We may now proceed to consider what are the circumstances in which departure may justifiably be made from the principle of selection based on merit. Obviously, such departure can be justified only on equality-oriented grounds, for whatever be the principle of selection followed for making admissions to medical colleges, it must satisfy the test of equality. Now the concept of equality under the Constitution. It takes within its sweep every process of equalisation and protective discrimination. Equality must not remain mere idle incantation but it must become a living reality for the large masses of people. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground that every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. We cannot countenance such a suggestion, for to do so would make the equality clause sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it. What the famous poet William Blake said graphically is very true, namely, One law for the Lion and the Ox is oppression. Those who are unequal, in fact, cannot be treated by identical standards; that may be equality in law but it would certainly not be real equality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action by way of giving preference to the socially and economically disadvantaged persons or, inflicting handicaps on those more advantageously placed, in order to bring about real equality. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing theweaker sections of thecommunity on a footing of equality with the stronger and more powerful sections so that each member of the community, whatever is his birth, occupation or social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence. We may in this connection usefully quote what Mathew, J., said in Ahmedabad St. Xaviers College Society v. State of Gujarat [(1974) 1 SCC 717, 799  : AIR 1974 SC 1389  : (1975) 1 SCR 173 ] : (SCC p. 799, para 132)… it is obvious that equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations [ The Advisory opinion on Minority Schools in Albania, April 6, 1935 publications of the Court, series A/B No 64, p 19] .We cannot, therefore, have arid equality which does not take into account the social and economic disabilities and inequalities from which large masses of people suffer in the country. Equality in law must produce real equality; de jure equality must ultimately find its raison detre in de facto equality. The State must, therefore, resort to compensatory State actionfor the purpose ofmaking people who are factually unequal in their wealth, education or social environment, equal in specified areas. The State must, to use again the words of Krishna Iyer, J., in Jagdish Saran case [(1980) 2 SCC 768  : AIR 1980 SC 820  : (1980) 2 SCR 831 ] (SCC p. 782, para 29) weave those special facilities into the web of equality which, in an equitable setting, provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity. . . . equality is not negated or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit. The scheme of admission to medical colleges may, therefore, depart from the principle of selection based on merit, where it is necessary to do sofor the purpose ofbringing about real equality of opportunity between those who are unequals.It is important toclarify here that after the decision in NM Thomas (supra) there is no constitutional basis to subscribe to the binary of merit and reservation. If open examinations present equality of opportunity to candidates to compete, reservations ensure that the opportunities are distributed in such a way that backward classes are equally able to benefit from such opportunities which typically evade them because of structural barriers. This is the only manner in which merit can be a democratizing force that equalises inherited disadvantages and privileges. Otherwise claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements.28. If merit is a social good that must be protected, we must first critically examine the content of merit. As noted above, scores in an exam are not the sole determinant of excellence or capability. Even if for the sake of argument, it is assumed that scores do reflect excellence, it is not the only value that is considered as a social good. We must look at the distributive consequences of merit. Accordingly, how we assess merit should also encapsulate if it mitigates or entrenches inequalities. As Amartya Sen argues:If, for example, the conceptualization of a good society includes the absence of serious economic inequalities, then in the characterization of instrumental goodness, including the assessment of what counts as merit, notewould have to betaken of the propensity of putative merit to lessen—or generate—economic inequality. In this case, the rewarding of merit cannot be done independent of its distributive consequences.In most versions of modern meritocracy, however, the selected objectives tend to be almost exclusively oriented towards aggregate achievements (without any preference against inequality), and sometimes the objectives chosen are even biased (often implicitly) towards the interests of more fortunate groups (favouring the outcomes that are more preferred by talented and successful sections of the population. This can reinforce and augment the tendency towards inequality that might be present even with an objective function that inter alia, attaches some weight to lower inequality levels [Amartya Sen, Merit and Justice in Arrow KJ, et al (eds), Meritocracy and Economic Inequality (Princeton University Press 2000)].A similar understanding of merit was advancedby this Court in BK Pavithra(supra), where this Court held:131. Once we understand merit as instrumental in achieving goods that we as a society value, we see that the equation of merit with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value.An oppositional paradigm of merit and reservation serves to entrench inequalities by relegating reserved candidates to the sphere of incompetence, and diminishing their capabilities. We have already stated that while examinations are a necessary and convenient method to allocate educational resources, they are not effective markers of merit. The way we understand merit should not be limited to individual agency or ability (which in any event is not solely of our own doing) but it should be envisioned as a social good that advances equality because that is the value that our Constitution espouses. Itis important to note thatequality here does not merely have a redistributive dimension but also includes recognizing the worth and dignity of every individual. The content of merit cannot be devoid of what we value in society. Based on the above discussion, we find it difficult to accept the narrow definition of merit (that is, decontextualised individual achievement). We believe such a definition hinders the realisation of substantive equality.this Court did nothold that reservation in PG courses is altogether impermissible. In Dr Preeti Srivastava (supra), this Court was not concerned with the issue of reservation in PG courses; rather it was concerned with the question whether it is permissible to prescribe a lower minimum percentage of qualifying marks for reserved category candidates in comparison to the general category candidates. In AIIMS Student Union v. AIIMS 2002 (1) SCC 428,  this Court was concerned with the question of reservation based on institutional preference in PG courses and held that limited preference to students of the same institution can be given at the PG level. In Saurabh Chaudhriv. Union of India2003 (11) SCC 146,  a Constitution Bench of this Court observed that reservation in PG courses to a reasonable extent did not violate the equality clause (Ibid, paragraph 67). Mr Divan hadurged on behalf of thepetitioners that for many individuals PG is the end of the road and therefore, the PG courses should be equated with SS courses and no reservation should be allowed in PG. We find it difficult to accept this argument when this Court has time and again permitted reservation in PG courses. This argument merely seeks to create an artificial distinction between the courses offered at the PG level. Further, only certain medical fields do not have SS courses andon the basis ofthat we cannot deem that reservation is impermissible in PG as a whole. Crucially, the issue here is whether after graduation, an individual is entitled to reservation on the ground that they belongto a class that sufferssocial and educational backwardness.In our opinion, it cannot be said that the impact of backwardness simply disappears because a candidate has a graduate qualification. Indeed, a graduate qualification may provide certain social and economic mobility, but that by itself does not create parity between forward classes and backward classes. In any event, there cannot be an assertion of over-inclusion where undeserving candidates are said to be benefitting from reservation because OBC candidates who fall in the creamy layer are excluded from takingThus, we find that there is no prohibition in introducing reservation forsocially and educationally backwardclasses (or the OBCs) in PG courses.31. In Pradeep Jain (supra), a three-Judge Bench of this Court was decidingreservation based on domicile and institutional preference in medical colleges or institutions of higher learning. Referring to State of U.P v. Pradip Tandon (1975) 2 SCR 761   and Nookavarapu Kanakadurga Devi v. Kakatiya Medical College AIR 1972 AP 83 , where reservation for the people of the hills in Uttarakhand and Telangana was held to be permissible since they were backward regions which would fall within the ambit ofsocially and educationally backwardclasses in Article 15(4), it was held that reservation or any other affirmative action programme based on residence or domicile is not arbitrary and violative of Article 14. However, it was also observed that it is desirable to admit students to the MBBS course on an all-India basis, in furtherance of merit, without any classification based on residence. It was observed that however, in view of the inequality in the society where a few areas within a State, and a few States on comparison to others are backward, admission based on an all-India examination will lead to inequality:19. […]Theoretically, of course, if admissions are givenon the basis ofall-India national entrance examination, each individual would have equal opportunity of securing admission, but that would not take into account diverse considerations, such as, differing level of social, economic and educational development of different regions, disparity in thenumber of seats available foradmission to the MBBS course in different States, difficulties which may be experienced by students from one region who might in the competition on all-India basis get admission to the MBBS course in another region far remote from their own and other allied factors. There can be no doubt that the policy of ensuring admissions to the MBBS course on all-India basis is a highly desirable policy, based as it is on the postulate that India is one nation and every citizen of India is entitled to have equal opportunity for education and advancement, but it is an ideal to be aimed at and it may not be realistically possible, in the present circumstances, to adopt it, for it cannot produce real equality of opportunity unless there is complete absence of disparities and inequalities — a situation which simply does not exist in the country today.