FACULTY ASSOCIATION OF AIIMS Vs UNION OF INDIA .
Bench: ALTAMAS KABIR,SURINDER SINGH NIJJAR,RANJAN GOGOI,M.Y. EQBAL,VIKRAMAJIT SEN
Case number: C.A. No.-004500-004500 / 2002
Diary number: 312 / 2002
Advocates: SHEKHAR KUMAR Vs
SUSHMA SURI
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4500 of 2002
FACULTY ASSOCIATION OF AIIMS … APPELLANT
VS. UNION OF INDIA & ORS. …
RESPONDENTS
WITH CIVIL APPEAL NO. 5119 OF 2002
J U D G M E N T
ALTAMAS KABIR, CJI. 1. When Special Leave Petition (Civil) No. 2106 of
2002, filed by the Faculty Association of AIIMS, was
taken up for consideration, notice thereupon was issued
by a Bench of Two-Judges and it was stipulated that any
appointment to be made, after the order was passed in
accordance with the reservation policy, would only be
tentative in nature until further orders. When the
Appeal was taken up for hearing on 20th February, 2003,
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along with Civil Appeal No. 5119 of 2002, considering
the important nature of the issues involved for
determination in the said cases, as also the recurring
nature of the problem, it was thought appropriate that
the matters be heard by a larger Bench. Thereafter, on
12th February, 2004, a Bench of Three-Judges headed by
the Chief Justice was of the view that the matters
involved substantial questions of law as to the
interpretation of the Constitution and were required to
be heard by a Bench of Five-Judges. It is pursuant to
such direction that the matter appeared before the
Bench of Five-Judges on several occasions and
ultimately they were listed before a Bench of Five-
Judges on 2nd July, 2013.
2. Although the matter is now before a Bench of five
Judges, the terms of reference are not very clear.
From what we have been able to gather from the
pleadings and the judgment of the Division Bench of the
High Court, the question to be considered is whether
reservation was inapplicable to specialty and super-
specialty faculty posts in the All India Institute of
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Medical Sciences, hereinafter referred to as “AIIMS”.
Faced with the decisions of this Court in the case of
Indra Sawhney Vs. Union of India & Ors. [(1992) Supp.
(3) SCC 215]; Jagdish Saran & Ors. Vs. Union of India &
Ors. [(1980) 2 SCR 831]; and Dr. Pradeep Jain etc. Vs.
Union of India & Ors. etc. [(1984) 3 SCR 942], wherein
reservation in admission to specialty and super-
specialty courses was disallowed, the Division Bench of
the High Court confined itself to the limited issue,
namely, whether reservation policy was inapplicable for
making appointments to the entry level faculty post of
Assistant Professor and to super specialty posts and
also whether the resolutions adopted by AIIMS on
11.1.1983 and 27.5.1994 were liable to be struck down.
3. Appearing for the Petitioner, Mr. P.P. Rao, learned
Senior Advocate, firstly referred to the statement of
objects and reasons of the All India Institute of
Medical Sciences Act, 1956, which provides as follows :
“For improving professional competence among medical practitioners, it is necessary to place a high standard of medical education, both post- graduate and under-graduate, before all medical colleges and other allied institutions in the
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country. Similarly, for the promotion of medical research it is necessary that the country should attain self-sufficiency in post-graduate medical education. These objectives are hardly capable of realisation unless facilities of a very high order for both undergraduate and post-graduate medical education and research are provided by a central authority in one place. The Bill seeks to achieve these ends by the establishment in New Delhi of an institution under the name of the All-India Institute of Medical Sciences. The Institute will develop patterns of teaching in under-graduate and post-graduate medical education in all its branches so as to demonstrate a high standard of medical education to all medical colleges and other allied institutions, will provide facilities of a high order for training of personnel in all important branches of health activities and also for medical research in its various aspects. The Institute will have the power to grant medical degrees, diplomas and other academic distinctions which would be recognised medical degrees for the purpose of the Indian Medical Council Act, 1933.”
4. Mr. Rao also referred to Section 5 of the Act which
declared the institute to be an institution of national
importance. As pointed out by Mr. Rao, Section 13 of
the Act is in line with the objects for which the
institute was created and Section 14 deals with the
functions of the institute relating to the academic
aspects of the institutes's functions as a teaching
institute.
5. Mr. Rao submitted that the question had earlier been
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gone into and considered in Indra Sawhney's case
(supra), wherein while considering the question of
reservation the Bench also took into consideration the
provisions of Article 335 of the Constitution regarding
the claims of Scheduled Castes and Scheduled Tribes to
services and posts. Referring to the concurring
Judgment of Jeevan Reddy, J., learned counsel referred
to Paragraphs 838 and 839 in particular and the
observations made therein. Since Paragraph 838 places
in focus the view of the Nine-Judge Bench, the same is
extracted hereinbelow:
“838. While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/ institutions, in specialities and super- specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.”
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6. In fact, both in Paragraphs 838 and 839, while
specifying areas, where it may not be advisable to put
reservation, the learned Judge has included posts in
research and development organisations/ departments
/institutions, in specialties and super-specialties in
medicine. The same observation is repeated in
Paragraph 839, wherein, categorically it was held that
the Bench was of the opinion that in certain services
and in respect of certain posts, application of the
rule of reservation may not be advisable and once again
included as the fourth item – posts in super-
specialties in medicine, engineering and other
scientific and technical subjects. Mr. Rao submitted
that as far as medicine is concerned “super-specialty”
means “post doctoral courses”.
7. Mr. Rao submitted that in the instant case,
reservation was being provided for up to the doctoral
stage, but at the stage of recruitment for a post
doctoral courses and research at the initial stage of
candidates were required to sit for a written
examination and those who are successful, were,
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thereafter, recruited in the different disciplines of
teaching. Mr. Rao submitted that the problem begins at
that stage when posts are thereafter, reserved in
respect of different courses. Mr. Rao submitted that
once a candidate qualified for recruitment in the
different posts of faculty beginning from the post of
Assistant Professor onward, there was no further logic
in thereafter reserving posts for candidates from the
Scheduled Castes and Scheduled Tribes and OBC
communities. Mr. Rao submitted that at that level of
super-specialty, the question of reservation ought not
to arise as was observed by the Nine-Judge Bench in
Indra Sawhney's case (supra).
8. Mr. Rao submitted that while Article 16(4) empowers
the State in making provisions for reservation of
appointments or posts in favour of any backward class
of citizens which, in the opinion of the State, was not
adequately represented in the services under the State,
the same would have to be read and understood in the
manner indicated in Indra Sawhney's case (supra). The
learned Senior counsel submitted that although definite
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directions have not been given in Paragraphs 838 and
839 of the judgment in Indra Sawhney's case (supra),
the observations made therein were guidelines for the
Government and institutions, such as AIIMS, to follow,
in order to provide the best candidates available with
the opportunity of going in for super-specialties which
entail higher degree of skill and where no compromise
in quality and expertise could be entertained.
9. In support of his aforesaid submissions, Mr. Rao
also referred to the decision of a Three-Judge Bench in
Dr. Jagadish Saran & Ors. Vs. Union of India [(1980) 2
SCC 768], wherein in Paragraphs 21, 22 and 23, Krishna
Iyer, J., writing the judgment, spoke about reservation
and what he referred as wholesale banishment of proven
ability to open up, hopefully, some dalit talent, total
sacrifice of excellence at the altar of equalisation –
when the Constitution mandates for every one equality
before and equal protection of the law – may be fatal
folly, self-defeating educational technology and anti-
national if made a routine rule of State Policy. His
Lordship further observed that a fair preference, a
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reasonable reservation, a just adjustment of the prior
needs and real potential of the weak with the partial
recognition of the presence of competitive merit – such
is the dynamics of social justice with animates the
three egalitarian articles of the Constitution. The
learned Judge goes on to observe in Paragraph 23 that
flowing from the same stream of equalism is another
limitation. The basic medical needs of a region or the
preferential push justified for a handicapped group
cannot prevail in the same measure at the highest
scales of specialty where the best skill or talent,
must be handpicked by selecting according to
capability. The learned Judge went on to restrict the
Indian Medical Council's recommendations which
indicated that students of post-graduate courses
therein should be selected strictly on merit, judged on
the basis of academic record in the undergraduate
course.
10. The next decision referred to by Mr. Rao is a short
judgment in the case of Dr. Fazal Ghafoor Vs. Union of
India & Ors. [(1988) Supp. SCC 794], which was a
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decision by two Judges, wherein, reliance was placed on
the decision of this Court in the case of Dr. Pradeep
Jain & Ors. Vs. Union of India & Ors. [(1984) 3 SCC
654], wherein, a Three-Judge Bench of this Court, while
considering the question of reservation in the light of
the aspirations of the citizens of India, as contained
in the Preamble to the Constitution, observed that
while reservation was acceptable with regard to the
undergraduate course, different considerations will
have to prevail when it came to the question of
reservation based on residents’ requirement within the
State or on institutional preference for admission to
the post-graduate courses, such as MD, MS and the like.
Following the decision in Dr. Jagadish Saran's case
(supra), Their Lordship observed that “there we cannot
allow excellence to be compromised by any other
consideration because that would be detrimental to the
interest of the nation. Their Lordships also observed
that if equality of opportunity for every other person
in the country is the constitutional guarantee, merit
must be the test when choosing the best.
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11. Mr. Rao lastly referred to the Constitution Bench
decision of this Court in Dr. Preeti Srivastava Vs.
State of M.P. [(1999) 7 SCC 120], which was a writ
petition heard along with several other writ petitions
on various aspects of reservation. Mr. Rao pointed out
that the Constitution Bench also referred to the
decision in Dr. Pradeep Jain’s case (supra) and also
Dr. Jagadish Saran’s case (supra), referred to
hereinbefore, in expressing its concurrence with the
views expressed therein. In Paragraph 25 of the
judgment, Sujata V. Manohar, J., speaking for the
Constitution Bench, observed that the specialty and
super-specialty courses in medicine also entailed on-
hand experience of treating or operating on patients in
the attached teaching hospitals. Those undergoing
these programmes are expected to occupy posts in the
teaching hospitals or discharge duties attached to such
posts. The elements of Article 335, therefore, colour
the selection of candidates for these course and the
rules framed for this purpose. Consequently, in
Paragraph 26, it was further observed that in the
premises the special provisions for SC/ST candidates –
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whether reservations or lower qualifying marks – at the
specialty level have to be minimal. There cannot,
however, be any such special provisions at the level of
super-specialties. In keeping with its findings the
Constitution Bench ultimately held that since no
relaxation is permissible at the highest levels in the
medical institutions, the Petitioners therein were
right when they contended that the reservations made
for the Scheduled Castes and Scheduled Tribes
candidates for admission to DM and MCH courses, which
are super-specialty courses, in not consistent with the
constitutional mandate under Articles 15(4) and 16(4),
and that Regulation 27 of the Post Graduate Institute
of Medical Education and Research, Chandigarh
Regulations, 1967, would not apply at the levels of
admissions to DM and MCH courses.
12. Mr. Rao submitted that the Health Survey and
Development Committee, popularly known as the Bhore
Committee, in its report published in 1946 recommended
the establishment of a national medical centre at
Delhi, which would concentrate on training, well-
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qualified teachers and research workers in order that a
steady stream of those could be maintained to meet the
needs of the rapidly expanding health activities
throughout the country. It seems that pursuant to the
said report and after attainment of Independence, the
Union Ministry of Health proceeded to implement the
aforesaid idea resulting in the enactment of the All
India Institute of Medical Sciences Act, 1956, with the
All India Institute of Medical Sciences as an
autonomous institution of national importance and
defined its objectives and functions. Various other
decisions, including the decisions in Saurabh Chaudri
and Others Vs. Union of India and Others [(2003) 11 SCC
146] and T.M.A. Pai Foundation Vs. State of Karnataka
[(2002) 8 SCC 481] were referred to by Mr. Rao to urge
that the observations made in Indra Sawhney's case as
well as in Preeti Srivastava’s case were binding,
though in the nature of observations made in the
judgments. Mr. Rao referred to the decision of this
Court in Commissioner of Income Tax, Hyderabad-Deccan
Vs. Vazir Sultan and Sons [1959 Supp (2) SCR 375],
wherein a Bench of Three-Judges examined the doctrine
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of “obiter dicta” and arrived at a finding that even
obiter at times has the force of law declared by the
Supreme Court under Article 141 of the Constitution.
Mr. Rao ended on the note that the introduction of the
concept of reservation in specialty and super-specialty
subjects or for the appointment of faculty in AIIMS,
would defeat the very purpose for which the institute
was established. Mr. Rao also submitted that if
excellence was to be achieved at the level of super-
specialty disciplines, no compromise could be made in
either imparting such education or recruiting persons
who would impart such education at such level.
13. Dr. Rajiv Dhawan, learned Senior Advocate, who
appeared in Civil Appeal No. 5119 of 2002, submitted
that the AIIMS Act did not empower the Governing Body
to impose reservation at any stage, much less at the
stage of super-specialty. Referring to the affidavit
filed by the Director of AIIMS, Dr. Dhawan submitted
that the decision of the High Court was contrary to the
decision of this Court in Indra Sawhney's case and also
in M. Nagaraj and Others Vs. Union of India and Others
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[(2006) 8 SCC 212] where it was held that there should
be no reservation at the super-specialty stage, and, in
any event, the same would have to be based on
quantifiable data. Mr. Rao submitted that proportional
representation and not adequacy, as understood in Indra
Sawhney’s case or even in M. Nagaraj’s case, has been
resorted to in the instant case in the teeth of the
said two cases. While making reference to the concept
of creamy layer, Dr. Dhawan urged that “equality” does
not mean that reservation had to be applied in each and
every case to maintain such equality, for example, the
creamy layer concept as was considered by this Court in
E.V. Chinnaiah Vs. State of A.P. and Others [(2005) 1
SCC 394].
14. Appearing for the Institute, Mr. Mehmood Pracha,
learned Advocate contended that people from Backward
classes and the Scheduled Castes and the Scheduled
Tribes were often discriminated against and even in
spite of having excellent qualities, they were not
provided with sufficient opportunities to come up to
the standards, as contemplated by the various medical
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colleges and, in particular, the All India Institute of
Medical Sciences, which is an institution of national
importance. Mr. Pracha urged that although reservation
at all different levels of the Institute had been
introduced, for quite some time, there is no available
data to indicate that there has been any deterioration
in the quality of medical services being provided in
AIIMS. On the other hand, AIIMS was one of the most
sought after medical institute, not only for promotion
and research work, but also for the purpose of medical
education. Taking a leaf out of Hindu mythology, Mr.
Pracha drew an analogy from the story of Eklavya and
Arjun in the Mahabharta. While Arjun belonged to the
princely class, Eklavya was a tribal boy, who without
actual training or guidance from any teacher, by his
own efforts, excelled in the art of archery. The
famous Dronacharya was Arjun’s teacher in archery and
Eklavya had acquired the skills that he had by merely
watching Dronacharya guiding Arjun. However, when it
came to an archery competition, Dronacharya, who was
more or less certain that, if allowed an opportunity,
Eklavya would possibly beat Arjun, requested Eklavya
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that if he really loved and respected him, he should
give his right thumb as gurudakshina to his master.
Eklavya dutifully obeyed the person he had chosen as
his master and was thus prevented from competing in the
competition which Arjun won. Mr. Pracha submitted that
simply because Eklavya was a tribal boy he was denied
the opportunity of competing with Arjun, despite his
brilliance and excellence. Mr. Pracha submitted that
there are many more Eklavyas in today’s society, who,
if not suppressed and given a chance, would possibly
even outshine those belonging to the higher echelons of
Society.
15. Mr. Pracha strongly supported the concept of
reservation at all stages, including at the super-
specialty stage. He urged that at the entry level for
recruitment to the faculty posts, which were all
treated as super-specialty disciplines after the Post
Graduate course, a member of the Backward Classes had
to sit for an examination with others without any
separate weightage given for reservation. It is only
after having passed the written examination along with
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other candidates, was a member of the Backward Classes
appointed in a teaching post on the basis of
reservation. Mr. Pracha submitted that this was done
only with the intention of giving such a candidate an
opportunity of reaching the level of his other fellow
faculty members. Mr. Pracha submitted that a little
support was intended to help people from the Backward
communities to make their presence felt in academia, so
as to encourage others similarly situated. Mr. Pracha
also relied on the decision of this Court in Indra
Sawhney’s case, in support of his contention that
members of the Scheduled Castes and Scheduled Tribes
and Other Backward Classes were not adequately
represented and for the said purpose a certain amount
of reservation was necessary so that they could compete
with others and excel in academics. Strongly
supporting the policy adopted by the Institute, Mr.
Pracha submitted that the Civil Appeal filed by the
Faculty of Association of AIIMS was liable to be
dismissed.
16. Appearing for the Union of India, the learned
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Solicitor General repeated the submissions made by Mr.
Pracha and added that the State had a constitutional
duty to empower certain sections of society who needed
help to uplift themselves from their particular
situations. The learned Solicitor General submitted
that Article 46 of the Constitution, though a Directive
Principle, was in the nature of a guideline for good
governance to the Government of the day. The said
Article was intended to help the depressed classes, who
otherwise had little opportunity of raising their
standards. Faced with the question as to when
initially the Central Government had opposed the
doctrine of reservation on the ground of excellence in
education, why was it necessary in 1972 to take a
different stand and come out in support of reservation,
even in super-specialty courses, the learned Solicitor
General urged that the policy was based not on the
question of adequacy, but as a measure of empowerment
for the Backward Classes. While referring to the
decision in M. Nagaraj’s case, which has been referred
to by the other learned counsel, the learned Solicitor
General contended that with the introduction of Article
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16(4A) in the Constitution, the decision arrived at in
M. Nagaraj’s case, would have to be read differently.
He, however, also urged that there was no
constitutional prohibition to impose reservation, if it
was felt necessary to benefit the Backward Classes, who
had little or no support to help them improve their
lot. Referring to the decisions of this Court in Dr.
Jagadish Saran's case and Dr. Pradeep Jain’s case,
which have been referred to hereinabove, the learned
Solicitor General urged that the direction given in Dr.
Pradeep Jain’s case that reservation should not exceed
70%, did not take into consideration Article 16(4A) of
the Constitution, while giving such directions.
17. Although, the matter has been argued at some length,
the main issue raised regarding reservation at the
super-specialty level has already been considered in
Indra Sawhney’s case (supra) by a Nine-Judge Bench of
this Court. Having regard to such decision, we are not
inclined to take any view other than the view expressed
by the Nine-Judge Bench on the issue. Apart from the
decisions rendered by this Court in Dr. Jagadish
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Saran's case (supra) and Dr. Pradeep Jain’s case
(supra), the issue also fell for considerate in Preeti
Srivastava’s case (supra) which was also decided by a
Bench of Five Judges. While in Dr. Jagadish Saran's
case (supra) and in Dr. Pradeep Jain’s case (supra) it
was categorically held that there could be no
compromise with merit at the super specialty stage, the
same sentiments were also expressed in Preeti
Srivastava’s case (supra) as well. In Preeti
Srivastava’s case (supra), the Constitution Bench had
an occasion to consider Regulation 27 of the Post
Graduate Institute of Medical Education and Research,
Chandigarh Regulations, 1967, whereby 20% of seats in
every course of study in the Institute was to be
reserved for candidates belonging to the Scheduled
Castes, Scheduled Tribes or other categories of
persons, in accordance with the general rules of the
Central Government promulgated from time to time. The
Constitution Bench came to the conclusion that
Regulation 27 could not have any application at the
highest level of super specialty as this would defeat
the very object of imparting the best possible training
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to selected meritorious candidates, who could
contribute to the advancement of knowledge in the field
of medical research and its applications. Their
Lordships ultimately went on to hold that there could
not be any type of relaxation at the super specialty
level.
18. In paragraph 836 of the judgment in Indra Sawhney’s
case (supra), it was observed that while the relevance
and significance of merit at the stage of initial
recruitment cannot be ignored, it cannot also be
ignored that the same idea of reservation implies
selection of a less meritorious person. It was also
observed that at the same time such a price would have
to be paid if the constitutional promise of social
justice was to be redeemed. However, after making such
suggestions, a note of caution was introduced in the
very next paragraph in the light of Article 15 of the
Constitution. A distinction was, however, made with
regard to the provisions of Article 16 and it was held
that Article 335 would be relevant and it would not be
permissible not to prescribe any minimum standard at
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all. Of course, the said observation was made in the
context of admission to medical colleges and reference
was also made to the decision in State of M.P. Vs.
Nivedita Jain [(1981) 4 SCC 296], where admission to
medical courses was regulated by an entrance test. It
was held that in the matter of appointment of medical
officers, the Government or the Public Service
Commission would not be entitled to say that there
would not be minimum qualifying marks for Scheduled
Castes/Scheduled Tribes candidates while prescribing a
minimum for others. In the very next paragraph, the
Nine-Judge Bench while discussing the provisions of
Article 335 also observed that there were certain
services and posts where either on account of the
nature of duties attached to them or the level in the
hierarchy at which they stood, merit alone counts. In
such situations, it cannot be advised to provide for
reservations. In the paragraph following, the position
was made even more clear when Their Lordships observed
that they were of the opinion that in certain services
in respect of certain posts, application of rule of
reservation may not be advisable in regard to various
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technical posts including posts in super specialty in
medicine, engineering and other scientific and
technical posts.
19. We cannot take a different view, even though it has
been suggested that such an observation was not
binding, being obiter in nature. We cannot ascribe to
such a view since the very concept of reservation
implies mediocrity and we will have to take note of the
caution indicated in Indra Sawhney's case. While
reiterating the views expressed by the Nine-Judge Bench
in Indra Sawhney’s case, we dispose of the two Civil
Appeals in the light of the said views, which were also
expressed in Dr. Jagadish Saran's case, Dr. Pradeep
Jain's case, Dr. Preeti Srivastava's case. We impress
upon the Central and State Governments to take
appropriate steps in accordance with the views
expressed in Indra Sawhney's case and in this case, as
also the other decisions referred to above, keeping in
mind the provisions of Article 335 of the Constitution.
20. There will be no order as to costs.
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…………………………………………………CJI. (ALTAMAS KABIR)
………………………………………………………J. (SURINDER SINGH NIJJAR)
………………………………………………………J. (RANJAN GOGOI)
………………………………………………………J. (M.Y. EQBAL)
………………………………………………………J. (VIKRAMAJIT SEN)
New Delhi Dated: July 18, 2013.
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