IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 01/11/2002 Coram THE HONOURABLE Mr. B. SUBHASHAN REDDY, Chief Justice, THE HONOURABLE Mr. Justice V.S. SIRPURKAR, THE HONOURABLE Mr. Justice R. JAYASIMHA BABU, THE HONOURABLE Mr. Justice P.D. DINAKARAN and THE HONOURABLE Mr. Justice C. NAGAPPAN W.A. No.3221 of 2002 and W.A.M.P. No.5348 of 2002 and W.P. Nos.23615, 23616 and 33272 of 2002, W.P.M.P. Nos.32515 to 32518 and 49326 of 2002 and W.V.M.P. Nos.936, 1138, 1151 and 1558 of 2002. -------------------------------------------------------------------------------------------- W.A. No.3221 of 2002 M. Aarthi (Minor) rep. by her mother and natural guardian Mrs. M. Renuka ... Appellant -Vs- 1. The State of Tamil Nadu, rep. by its Secretary to Government, Health & Family Welfare Department, Fort St. George, CHENNAI - 600 009. 2. The Director of Medical Education, No.162, Periyar EVR High Road, Kilpauk, CHENNAI - 600 010. 3. The Selection Committee, The Director of Medical Education, No.162, Periyar EVR High Road, Kilpauk, CHENNAI - 600 010. ... Respondents L.......T.......T.......T.......T.......T.......T.......T.......T.......T....J Prayer: Appeal against the order in W.P. No.33838 of 2002 dated 3.9.2002 of the learned single Judge. W.P. No.23615 of 2002 P. Sakthi Priya (Minor) rep. by her father & natural guardian M. Pechimuthu ... Petitioner Vs. 1. The Secretary, Tamil Nadu Engineering Admissions, 2002 Anna University, CHENNAI - 600 025. 2. Government of Tamil Nadu, rep. by its Secretary, Dept. of Education, Fort St. George, CHENNAI - 600 009. ... Respondents Prayer: Petition filed under Article 226 of Constitution of India for the issuance of a Writ of Declaration for the reasons as stated therein. W.P. No.23616 of 2002 P. Sakthi Priya (Minor) rep. by her father & natural guardian M. Pechimuthu ... Petitioner Vs. 1. The State of Tamil Nadu, rep. by its Secretary to Government, Health & Family Welfare Department, Fort St. George, CHENNAI - 600 009. 2. The Director of Medical Education, No.162, Periyar EVR High Road, Kilpauk, CHENNAI - 600 010. 3. The Selection Committee, The Director of Medical Education, No.162, Periyar EVR High Road, Kilpauk, CHENNAI - 600 010. 4. Minor Sumitha 5. Minor C. Socrates 6. Minor G. Kalyani 7. Minor K. Majnu 8. Minor D. Kanimozhi 9. Minor Satish Kumar 10. Minor V. Barathvajan ... Respondents Prayer: Petition filed under Article 226 of Constitution of India for the issuance of a Writ of Declaration for the reasons as stated therein. W.P. No.33272 of 2002 V. Divyakala ... Petitioner Vs. 1. The State of Tamil Nadu, rep. by its Secretary to Government, Health & Family Welfare Department, Fort St. George, CHENNAI - 600 009. 2. The Secretary, Selection Committee, The Director of Medical Education, No.162, Periyar EVR High Road, Kilpauk, CHENNAI - 600 010. ... Respondents Prayer: Petition filed under Article 226 of Constitution of India for the issuance of a Writ of Certiorarified Mandamus for the reasons as stated therein. !For Appellant in W.A. No.3221 : Mr. R. Gandhi, Sr. Counsel of 2002 for Mr. R.G. Narendhiran For Petitioners in W.P. Nos.23615 : Mr. V. Prakash and 23616 of 2002 For Petitioner in W.P. No.33272 : Mr. C. Selvaraju of 2002 ^For Respondents 1 to 3 in all the : Mr. N.R. Chandran, matters Advocate General, assisted by Mr. V. Raghupathi, Govt. Pleader in W.A. No.3221 of 2002 and Mr. V.R. Rajasekaran, Spl. Govt. Pleader in Writ Petitions. For 4th Respondent in W.P. No. : Mr. V. Bhiman 23616 of 2002 For 5th Respondent in W.P. No. : Mr. K. Chandru, Sr. Counsel, 23616 of 2002 for Mr. T.R. Ravi For Respondents 6 to 9 in W.P. No. : Mr. V.K. Vijayaraghavan 23616 of 2002 For 6th Respondent in W.P. No.23616 : Mr. S. Sathyamoorthy of 2002 :J U D G M E N T THE HONOURABLE THE CHIEF JUSTICE (For himself and V.S.S.J., P.D.D.J and C.N.J.,) This Writ Appeal and Writ Petitions raise an important question relating to the entitlement of separate reservation for the children of inter-caste marriage under special category other than the reserved categories. 2. W.A. No.3221 of 2002 arises out of the judgment rendered on 3.9.2002 in W.P. No.33838 of 2002. Because of the stay granted by a Division Bench of this Court in W.P. No.23616 of 2002, no relief could be granted by the learned single Judge and the writ appeal has been filed. 3. Ms. P. Sakthipriya, a minor represented by her father and natural guardian Pechimuthu, has filed W.P. Nos.23615 and 23616 of 2002. (a) In W.P. No.23615 of 2002, the prayer is to declare that Item 10 of clause 4.4. of the Prospectus for Admission into B.E./B.Tech/B.Arch course is to be interpreted as meaning equal opportunity for the various categories mentioned therein and preferen e to be given when marks are equal on the basis of merit consequent to such direction, direct the respondents to consider the petitioner's case based on such interpretation and issue such further or other orders or directions as this Court may deem fit. (b) In W.P. No.23616 of 2002, the relief sought for is to declare that sub-clause (viii) of Clause 13 of the Prospectus for Admission into M.B.B.S./B.D.S course is to be interpreted as meaning equal opportunity for the various categories mention in and preference to be given when marks are equal on the basis of merit consequent to such direction, direct the respondents to consider the petitioner's case based on such interpretation and issue such further or other orders or directions as this Cour t may deem fit. 4. In W.P. No.33272 of 2002, the relief sought for is to issue Writ of Certiorarified Mandamus calling for the records pertaining to the Prospectus of M.B.B.S./B.D.S. Admissions 2002 - 2003 of the second respondent and quash the Clause (viii) o and direct the respondents to select the petitioner under the Special Category for the children of inter-caste marriage people without any order of preference and on merits. 5. (a) W.P.M.P. No.46329 of 2002 in W.P. No.23616 of 2002, has been filed by one C. Socrates seeking impleadment and the same was ordered on 5.8.2002. (b) W.P. M.P. No. 50036 of 2002 in W.P. No.23616 of 2002 has been filed by one Sumitha seeking impleadment and the same was ordered on 5.9.2002. (c) W.P.M.P. No.55683 of 2002 in W.P. No.23616 of 2002, has been filed by one V. Barathvajan seeking impleadment and the same was ordered on 31.10.2002. (d) W.P.M.P. No.59679 of 2002 in W.P. No.23616 of 2002, has been filed by G. Kalyani, K. Majnu, D. Kanimozhi and Satish Kumar seeking impleadment and the same was ordered on 31.10.2002. 6. By order dated 3.7.2002, an injunction has been granted regarding the selection on the basis of preferential reservation pursuant to Item (viii) of Clause 13 of Prospectus of Tamil Nadu M.B.B.S./B.D.S. Admission 2002 - 2003 as also regardin imilar provision relating to Engineering admissions. Petitions to vacate the same have been filed and they came up for hearing on 26.9.2002. But the injunction order was not vacated. Learned Government Pleader brought to the notice of the Court the de cision rendered by a Division Bench of this Court in S. HARI GANESH v. STATE OF TAMIL NADU (AIR 1987 Madras 55) and a Full Bench of this Court in M. SONA RAJAN v. STATE OF TAMIL NADU (1999 (II) CTC 1) and submitted that the matter is no more res integra in view of the aforementioned decisions and that the writ petitions are liable to be dismissed as being covered by the aforesaid decisions. Learned counsel for the petitioners submitted that the ratio laid down in the said decisions is incorrect and the same need to be reconsidered. A Full Bench judgment in MINOR S. MUTHU SENTHIL v. STATE OF TAMIL NADU (2002 (1) C.T.C. 385) was also brought to the notice of the Court, which dealt with a matter of reservation traceable to Article 15 (4) of the Indian C onstitution. As such, the matter has been referred to a Larger Bench of 5 Judges by order dated 26.9.2002. On 23.10.2002, W.A. No.3221 of 2002 has been filed and Mr. R. Gandhi, learned senior counsel for the appellant, submitted that the matter require s expeditious disposal as the admissions to other categories has already been completed and that the courses have to start and any loss of time would result in irreparable injury to the students. Therefore, a Larger Bench was constituted and the matter was heard on 30.10.2002 and 31.10.2002. 7. In order to avoid confusion and duplication, we refer the parties as indicated below. We are not mentioning the respondents in W.P. No.23615 of 2002 as Mr. V. Prakash, learned counsel for the petitioner, has withdrawn the writ petition on t that the petitioner has opted to have admission into medical course and not engineering course. M. Aarthi : First Petitioner P. Sakthi Priya : Second Petitioner V. Divyakala : Third Petitioner State of Tamil Nadu, rep. by the : First Respondent Secretary to Government, Health & Family Department, Chennai. The Director of Medical Education : Second Respondent The Selection Committee, : Third Respondent The Director of Medical Education S. Sumitha : Fourth Respondent C. Socrates : Fifth Respondent G. Kalyani : Sixth Respondent K. Majnu : Seventh Respondent D. Kanimozhi : Eighth Respondent Satish Kumar : Ninth Respondent V. Barathvajan : Tenth Respondent 8. In the Entrance Examination, out of 300 marks, the petitioners 1 to 3 and the respondents 4 to 10 have obtained the following marks: First Petitioner : 267.35 Second Petitioner : 233.14 Third Petitioner : 279.47 Fourth Respondent : 244.50 Fifth Respondent : 262.13 Sixth Respondent : 279.24 Seventh Respondent : 279.29 Eighth Respondent : 255.85 Ninth Respondent : 271.65 Tenth Respondent : 224.52 9. The last marks (cut off marks) obtained by the students opting for M.B.B.S. course in OC/BC/MBC/SC/ST categories are as follows: Government IRT Free Payment OC 295.20 293.88 293.84 292.86 BC 293.77 293.69 293.52 MBC 291.61 291.40 291.19 SC 285.47 285.22 284.68 ST 273.01 278.31 276.80 It is not in dispute that neither the petitioners nor the respondents 4 to 10 could get a seat in M.B.B.S. course for the year 2002 - 2003 as the marks obtained by them are far below the cut off marks obtained by the above categories. That is why, they fell back upon Clause 13 (viii) of the Prospectus, which reads, 13. SEATS RESERVED FOR SPECIAL CATEGORIES IN GOVERNMENT COLLEGES: (viii) SEATS RESERVED FOR CHILDREN BORN OF INTER-CASTE MARRIAGE NO. OF SEATS RESERVED IN M.B.B.S. - 12 The following order of preference shall be followed for selection of candidates from this category based on merit: (a) The children born of intercaste Marriage between SC/ST and Forward Community (b) The children born of intercaste Marriage between SC/ST and Backward Community (c) The children born of intercaste Marriage between SC/ST and MBC and Denotified Communities. The castes of parents of the respective petitioners and respondents 4 to 10 and the categories they fall into, are mentioned infra: Father Mother Category 1st Petitioner S.C. F.C. (a) 2nd Petitioner S.C. B.C. (b) 3rd Petitioner S.C. M.B.C. (c) 4th Respondent F.C. S.C. (a) 5th Respondent S.C. F.C. (a) 6th Respondent F.C. S.C. (a) 7th Respondent S.C. F.C. (a) 8th Respondent S.C. F.C. (a) 9th Respondent F.C. S.C. (a) 10th Respondent S.C. F.C. (a) 10. Mr. V. Prakash, learned counsel appearing for the second petitioner, led the arguments. He submits that 12 seats in Medical Course were carved out as a special category for the children born of inter-caste marriages and once the students come withi that category, there cannot be further categorisation and that all the children of inter-caste marriages opted under the special category are entitled to be selected in accordance with the marks and not on the basis of any preference. He further submit s that there is no intelligible differentia for giving preference to one category over the other and such categorisation infracts equality and equal protection clauses enshrined in Article 14 of Indian Constitution. According to the learned counsel, the special reservation is not traceable to sub-Article (4) of Article 15 of the Indian Constitution. He submits that the reservation is horizontal. Mr. C. Selvaraj, the learned counsel for the third petitioner, supports the said arguments. 11. Mr. N.R. Chandran, learned Advocate General appearing for the State, counters the petitioners' arguments on the ground of existence of intelligible differentia for giving preference. According to the learned Advocate General, the degree of d varies from (a) category and (b) category and from (b) category to (c) category and it is higher in (a) category and narrows down in (b) category and further narrows down in (c) category and that forms the nexus for differentiation and preferential treat ment. The learned Advocate General further submits that the State is entitled to identify the special categories under Article 162 read with Entry 25 of List III of Schedule 7 of Indian Constitution and that such power flows from Article 15 (1) of the I ndian Constitution and the criteria for the special reservation is not based on caste but on merit and to encourage the inter-caste marriages. Mr. R. Gandhi, learned senior counsel appearing for the first petitioner, supports the stand taken by the lear ned Advocate General. 12. Mr. K. Chandru, the learned senior counsel appearing for the fifth respondent, submits that the very reference to Five-Judges Bench is bad as the matter ought to first be referred to Three-Judges Bench and only if the Three-Judges Bench opin t was a matter to be decided by a Five-Judges Bench, then a reference ought to be made to a Five-Judges Bench. He also submits that a Special Leave Petition has been filed before the Supreme Court assailing the order of reference and that is likely to b e listed on 1.11.2002. 13. We are unable to accede to the submission of Mr. K. Chandru, learned senior counsel, as the reference order was passed on 26.9.2002 and no objection has been raised by anybody. Even at the start of the arguments on 30.10.2002, no objection ed and arguments went on on 30.10.2002 and on 31.10.2002. Only towards the end of the day and on the verge of closure of the arguments, the above argument has been raised. Further, education matters like this cannot brook any delay. Admissions to all other categories of Medicine have been completed on 30.09.2002 and the classes have begun. Only 12 seats under this category had to be filled up and responding to the urgency and at the cost of the other work, this Larger Bench has been constituted. In the circumstances, in our considered view, there is no legal impediment to dispose of this matter without any loss of time. 14. Mr. Chandru, learned senior counsel, then proceeds with his arguments and submits that there is no lis present so as to adjudicate whether reservation is traceable to Article 15 (1) or Article 15 (4) of the Constitution and the entire discus only academic for nobody has assailed the validity of the special reservation and what is being fought for is only the preferential treatment. He further submits that the special category reservation is outside the purview of Article 15 and for that rea son, even Article 14 and this springs out of Preamble to the Indian Constitution read with Article 38 (2) and Entry 25 of List III of Schedule 7 of the Indian Constitution. He reiterates the stand taken by the learned Advocate General that the State is entitled to carve out a special reservation of this nature as a part of the caste eradication scheme and the special treatment is protected under the theory of 'compensatory discrimination' akin to compassionate appointment and that as Tamil Nadu Act 45 of 1994 does not provide for this kind of special reservation, the State has rightly invoked its executive power under Article 162 of Indian Constitution. 15. Mr. V. Bhiman, learned counsel for the fourth respondent, Mr. V.K. Vijayaraghavan, learned counsel for the respondents 6 to 9 and Mr.Sathyamoorthy, learned counsel appearing for the tenth respondent, adopt the above arguments of Mr. Chandru, learned senior counsel. 16. The contention that there is no lis pending for adjudication is unacceptable. The bone of contention is for admission into medical course, 12 seats have been specially earmarked for promotion of inter-caste marriages and that forms a specia ry of reservation. But the writ petitioners 2 and 3 contend that there cannot be any preferences while applying the special reservation. Then consideration goes to the roots of the matter as to whether special reservation pleaded really exists and fits in our Constitutional scheme. When the equal treatment is the rule and the reservation is an exception, it is fundamental that foundation should be laid relating to power to carve out such an exception and that such power has been validly exercised and thus burden lies on the persons or the State pleading for the same. The preferential treatment arises only when special category reservation exists and when it does not exist, the entire thing falls to ground. Now, we proceed to examine the prime cont ention that the special reservation of this kind is not a reservation flowing from Article 15 (4) but is traceable to Article 15 (1) as contended by some learned counsel mentioned above and the extreme contention of Mr. K. Chandru, learned senior counsel , that this special reservation is not relatable either to Article 15 or Article 14 of Indian Constitution but is directly traceable to the Preamble of the Constitution as part of caste eradication policy in furtherance of social justice. 17. In HARI GANESH's case (cited supra) and SONA RAJAN's case (cited supra), the judgments were rendered on the premise that there is a special reservation provided by the State and the only aspect considered was the validity of the discrimina giving preferential treatment between categories (a), (b) and (c) on the touchstone of Article 14 of Indian Constitution. Article 15 was never considered. While Article 14 enshrines general right of equality, Articles 15 and 16 of Indian Constitution d eal with specific rights of equality. Admission to educational institutions is the one specifically covered by Article 15. Exception to equal treatment under Article 15 has been carved out by incorporating sub-Article (4) by the Constitution (First Ame ndment) Act, 1961, which was necessitated because of the judgment of the Supreme Court in STATE OF MADRAS v. CHAMPAKAM DORAIRAJAN (AIR 1951 S.C. 226). Article 15 (4) protects the reservation for admissions to educational institutions if any order is pas sed by the State for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes. The prime consideration is whether the special reservation in the instant case is traceable to above Ar ticle 15 (4) and if so traceable, whether the power is exhausted by reason of enactment of Tamil Nadu Act 45 of 1994. 18. It is too late in a day to say that no reservations of any kind can be provided, be it admission to educational institutions under Article 15 or in public appointments under Article 16 of Indian Constitution. Plethora of precedents have bee by the learned counsel appearing in the matter but we find that the matter is squarely covered by the legal principles enunciated by a majority judgment in INDRA SAWHNEY v. UNION OF INDIA (AIR 1993 S.C. 477). Surveying the entire case law on the subject relating to public employment and reservations thereto under Article 16 and also touching upon Article 15, it was authoritatively held that once the State carves out an exception of social reservation, the power is exhausted and no further social reserv ation can be resorted to. What is applicable to Article 16 (4) is equally applicable to Article 15 (4). In fact, nobody disputes this. While approving the provision relating to reservations, the Supreme Court in INDRA SAWHNEY's case (cited supra) hel d that reservations cannot exceed 50% and necessarily 50% has to be set apart for Open Category on the basis of merit and only in exceptional circumstances, can the rule of this 50% maximum limit be relaxed but heavy burden lies upon the State to justify such reservation in excess of 50%. Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994) provide 69% reservation leaving only 31% to Open Category. Allocation of seats in educational institutions is provided as under: OC 31% BC 30% MBC & Denotified Communities 20% SC 18% ST 1% The validity of this Act is under challenge before the Supreme Court. Therefore, our consideration is confined only to the aspects other than the validity of the above enactment. In tune with Tamil Nadu Act 45 of 1994, the Prospectus provides the rule of reservation in sub-clause (9) of Clause 8, which reads, (9) The rule of reservation: Open Competition 31% Backward Classes 30% Most Backward Classes/Denotified Communities 20% Scheduled Castes 18% Scheduled Tribes 1% 19. The executive power of the State under Article 162 of the Constitution is co-extensive with the legislative power and when the field of law is occupied by a legislative Act, the exercise of executive power is not available. There is no dispute abou the State's power to provide reservation even by executive order under Article 162 of Indian Constitution. But such power can be exercised only in the absence of a legislative Act. Of course, if an aspect is not covered by the legislative Act, then th e executive power can be resorted to. To put it precisely, if the power of reservation is exhausted under Tamil Nadu Act 45 of 1994, then no power exists to invoke the executive power under Article 162 of the Constitution. The special reservation, whic h has been provided for the children born of inter-caste marriage is one traceable to Article 15 (4) on the ground of social and educational backwardness. That power has already been exhausted by the State by enacting the Tamil Nadu Act 45 of 1994. We are unable to accede to the contention that the special reservation provided for the children of inter-caste marriage is not traceable to Article 15 (4) but to Article 15 (1) or Article 14 or Preamble of the Constitution. The very basis of reservation for inter-caste children is based on their social and educational backwardness and is only traceable to Article 15 (4) and when the State had already exhausted that power of reservation by enacting Act 45 of 1994, there is no other reason for invocation of Article 162 of the Constitution. In fact, the State did not even invoke such power under Article 162 of the Constitution, obviously, for the reason of its exhaustion of power under Tamil Nadu Act 45 of 1994. A reading of G.O. Ms.No.477, Social Welfa re Department, dated 27.6.1975, on the basis of which this special reservation for the children born of inter-caste marriage has been provided, makes it clear that the State did not venture to carve out any special reservation as pleaded by the parties. In fact, this was never taken note of in HARI GANESH's case (cited supra) or SONA RAJAN's case (cited supra). We feel it apt to extract the same.: SOCIAL WELFARE DEPARTMENT G.O.Ms.No.477 Dated: 27.06.1975 ORDER:- The Government have been extending certain concessions to the members of Scheduled Tribes, Scheduled Castes and Backward Classes from time to time. A question has arisen about the determination of the community of the children born of inter-caste m ages. 2. The Government after carefully examining the question, direct that the children born of inter-caste marriages, that is marriages - (i) between a person of a Scheduled Tribe and another of a Scheduled Caste or Backward Class or Forward Class; (ii) between a person of a Scheduled Caste and another of a Backward Class or Forward Class; and (iii) between a person of