JUDGMENT K.B. Asthana, J.
4. The stand taken on behalf of the respondents, as appears from the two counter-affidavits, was that in the State of Uttar Pradesh there were six State Medical Colleges situate at Allahabad, Kanpur, Meerut, Agra, Jhansi and Gorakhpur, and. in addition to the aforesaid State-controlled Medical Colleges, there was King George Medical College, Lucknow, which is managed and controlled by the Lucknow University. In the year 1973 it was decided to hold the Combined Pre-Medical Test for selecting students for admission to the M.B.B.S. course to the seven State-controlled Medical Colleges and also to the course of B.D.S. of the King George Medical College, Lucknow, and the Meerut University was asked to conduct the Combined Pre-Medical Test vide order of the Government dated 28-2-1973. The Meerut University took necessary steps in accordance with the instructions contained in the aforesaid Government order for holding the Combined Pre-Medical Test of 1973. Applications were invited by the Meerut University for the said test on a prescribed application form which contained detailed conditions and instructions for 782 seats for M.B.B.S. and 30 seats for B.D.S. The general seats were more than 50%. As a result of the test a merit list of all the candidates was prepared categorywise and the list contained the names of the 7-82 successful candidates for M.B. B.S. seats and 30 candidates for the B.D.S. in accordance with the marks obtained by them in the test. A waiting list was also prepared categorywise. These lists were sent to the Government for scrutiny by a Special Committee appointed in this behalf and thereafter the result was published. It was stated that the petitioner though academically qualified to appear at the test of 1973 could not achieve the merit required to entitle him for admission to M.B.B.S. course for which he applied in the application form prescribed by the Meerut University for the Combined Pre-Medical Test of 1973. It was emphasized that the petitioner filled the application form and signed it and agreed to abide by the conditions of the test contained in the form and the instructions enclosed. It was denied that in making the reservations of seats for certain classes or grounds any constitutional or any fundamental rights of the petitioner were violated. It was pleaded that the State Government considered rural area, hill area and Uttarkhand areas of the State as economically undeveloped and also considered these areas backward socially and educationally. In the supplementary counter-affidavit this plea was further elaborated and it was stated that rural areas, hill areas other than Uttarkhand and Uttarkhand areas were areas where there was lack of educational facility and people living in these areas were either illiterate or had a modest education; their economic conditions were highly unsatisfactory and their income was very low. There was acute poverty in those areas. There was also lack and in some cases total absence of communication and transport in these areas. It was a historical fact that those areas had been neglected from olden times and as such they lagged behind and the march of civilisation as is well known and understood in reference to urban areas has been slow to reach these areas because of such factors. The candidates from those areas on account of various difficulties and handicaps could not generally compete on parallel or equal footing with the candidates who receive education in urban areas where educational facilities were easily available. The people who follow the medical profession are averse to settle down in rural areas, hill areas and far off Uttarkhand Division which are remote hilly areas. There being lack of living comforts in these areas as compared to conditions in urban areas, a large number of dispensaries in those areas remain without doctors. The reservations as such made were to provide medical service to be rendered to the people of those areas.
5. As regards the Special Test held at Varanasi, it was stated that the Combined Pre-Medical Test 1973 had nothing to do with the Special Pre-Medical Test which was held exclusively for the students of the Sampurnanand Medical College, Varanasi, which had been banned by the U. P. Government by an ordinance which later on was replaced by an Act of Legislature. For the benefit of the students of the banned college the State Government in compliance with the directions by this Court's order dated 10-4-1973 in Civil Misc. Writ No. 826 of 1973 (All.), Rabindranath Tagore Medical College Educational Society v. State of U. P. arranged for Pre-Medical Test coaching at Queens College, Varanasi. to enable them to appear at the aforesaid test. A 'Special Pre-Medical Test was held for these students by the Gorakhpur University, according to the decision taken by the Government on 6-4-1973. The Special Pre-Medical Test was, therefore, held in a different background and circumstances having no connection, whatever, with the Combined Pre-Medical Test 1973 and it did not affect the right of admission of the candidates who appeared at the Combined Pre-Medical Test of 1973. It was admitted that as against 150 seats reserved for the students of the banned college only 110 candidates were declared successful and the remaining 40 seats remained unfilled. It was emphasized that out of 782 seats only 390 seats were reserved for the various categories and, thus, the reservation was below 50%. In the counter-affidavit reliance was placed on another decision of this Court in Subhash Chandra v. State Of U. P., (AIR 1973 All 295) wherein a reservation made for the 1971 Combined Pre-Medical Test was upheld. It was pleaded that the judgment of the High Court in (AIR 1973 All 592) was brought to the notice of the Government only in April 1973, much after the decision to hold the Combined Pre-Medical Test of 1973 by the Meerut University had been taken and the directions had been issued. This then is, in substance the case of the respondents.
6. When this writ petition was admitted by a Bench of this Court, at the preliminary hearing the Bench ordered the petition to be placed before a Full Bench of three Judges in view of the apparent conflict between the above two Division Bench decisions of this Court. This is how this writ petition has come up before us.
7. It may be stated that we had deferred the hearing of this petition at an earlier stage on the representation of the Chief Standing Counsel that an appeal against the judgment of this Court in AIR 1973 All 592 (supra) by Special Leave was pending in the Supreme Court and was likely to be decided early. Since, it appeared to us subsequently that there was no likelihood of the decision of the Supreme Court being pronounced early and another session for teaching in State-controlled Medical Colleges was to start in July or August 1974, we heard the petition on the insistence of the learned counsel of the petitioner.
8. The main question that arises for determination in this petition relates to the constitutional validity of the reservation of seats made by the State Government for candidates of the hill areas other than Uttarkhand Division, rural areas, Uttarkhand Division and special privilege granted to the students of the banned Medical College and the reservation of seats for the nominees of the Central Government. The learned counsel for the petitioner at the hearing did not challenge the reservations made for the Scheduled Castes, Scheduled Tribes, the girl candidates, the children of political sufferers and the children of the Army Personnel, the reservations made for the latter two classes having been considered by the petitioner's learned counsel as immaterial.
9. It would be convenient at this stage to refer to the two Division Bench cases decided by this Court, already mentioned above, viz., AIR 1973 All 295 and AIR 1973 All 592. In the case of Subhash Chandra the Division Bench pronounced its judgment on 27-10-1972. The judgment is reported in the AIR 1973 All 295. In the said case Subhash Chandra had appeared in the Combined Pre-Medical Test held in 1971 for one of the general seats but failed to be selected for admission. The Scheme of the Combined Pre-Medical Test of 1971 was similar to the Scheme of 1973. The substantial point raised and canvassed before the Division Bench was that if 26 seats reserved for the nominees of the Central Government were added to the total seats available, the reservation of seats would be more than 50% and that being illegal was liable to be struck down. This argument did not find acceptance before the Bench who held that the State Government may have been under obligation to the Government of India to provide some seats for its nominees and since these 26 seats were not open to be filled by the Pre-Medical Test, they could not be taken into account while determining the reasonableness of reservation of seats. Once these 26 seats were kept out of consideration, the reservation for other categories was found to be 49 per cent and held not to be unreasonable. In Dilip Kumar's case, AIR 1973 All 592 the challenge against the Scheme of the Combined Pre-Medical Test of 1969 was based on different grounds. The Scheme of this Test was also similar to the one of the 1971 test and of the 1973 test. This Test was held by the Agra University. The judgment in this case was pronounced by the Division Bench on 31-1-1973. It appears from the reported judgment that the decision of the Division Bench in Subhash Chandra's case was not noticed. It further appears from the reported judgment that the constitutionality of the Scheme was attacked on various grounds which wore not raised and canvassed in Subhash Chandra's case, AIR 1973 All 295. The Division Bench held that the reservation made for candidates of Rural Areas and Hill Areas other than Uttarkhand was not justified as there was no proper application of mind in determining that the people of Hill Areas and Rural Areas were socially and educationally backward. Therefore, the reservations made for persons of these areas will be struck down as violative of Article 15(4) of the Constitution. As a result the whole paragraph 10 of the instructions of the Combined Pre-Medical Test 1969 and the order of the State Government was quashed. It has not been disputed and it cannot be disputed that paragraph 10 of the instructions of the 1969 Combined Pre-Medical Test was in the same terms as paragraph 10 of the instructions of the 1973 Combined Pre-Medical Test save for the difference in the numbers of seats of various categories.
10. In Subhash Chandra's case, AIR 1973 SC 295 there is a passing observation of the Division Bench in paragraph 6 of the reported judgment to the effect;--
"The reservation in respect of candidates from rural areas, hill areas and Uttarkhand Division has been stated to be because the citizens of these area's form a socially and educationally backward class of citizens. This, in our opinion, is undeniable from the point of view of education in medicine, because in this State there are only six medical colleges, each one of which is situated in a municipal town. There is no facility for imparting medical education in the rural or hill areas or in the Uttarkhand Division. From the point of view of imparting medical education, these areas were correctly treated by the State Government as having socially and educationally backward citizen."
From the observations extracted above it is clear that the Division Bench justified the reservations of the candidates from rural areas, hill areas and Uttarkhand areas from the point of education in medicine as no medical college was situate in these areas and the six medical colleges controlled by the State were situate in far flung municipal towns and that there was no facility for imparting medical education in these areas. Therefore, the Division Bench held that from the point of view of imparting medical education these areas were correctly treated by the State Government as having been socially and educationally backward. The question is whether the social and educational backwardness of the citizens for the purpose of Article 15(4) of the Constitution is to be determined with respect to some special need for meeting peculiar situation, or the correct view of law is as adumbrated by the Division Bench in Dilip Kumar's case, AIR 1973 All 592. In paragraph 10 of the reported judgment the Division Bench observed in Dilip Kumar's case as follows:--
"In the instant case the State has tried to justify why the various groups or areas detailed in the instructions were considered to be educationally backward but nothing has been indicated why and how could they all be treated as socially backward also. For educational backwardness the main criterion appears to be the percentage of marks obtained in the Pre-Medical Test, the number of candidates from reserved areas appearing in the Pre-Medical Test and also the shortage of Higher Secondary Schools in these areas. We must say that this is not sufficient for classifying all the residents of these areas as belonging to educationally backward classes. All the residents of one village may be educationally backward but the same cannot be said in regard to all the rural areas. Instances are not unknown where literacy in a rural area is very high in some villages nearing cent per cent. Similarly in the hill areas other than Uttarkhand Division there are classes of citizens who cannot be classed as educationally backward. Uttarkhand Division stands in a different category and in the absence of data it may be said that major part thereof is socially and educationally backward; but in Uttarkhand Division also there are certain areas all the residents whereof cannot be classed as socially and educationally backward."
The Division Bench in Dilip Kumar's case did not correlate the social and educational backwardness of the citizens of these areas to imparting of medical education alone. It disapproved the generalization made by the Government and rejected the case set up by it that all the residents of rural and hill areas were socially and educationally backward. That is why it held that there has been no application of mind by the Government. The Government indulged in generalization without the proper data and figures. It was emphasised impliedly that before any class of citizens can be classified for exceptional treatment under Article 15 of the Constitution, they must be socially and educationally backward, i.e., both the criteria should co-exist. If a class of citizens is not socially backward but is educationally backward or vice versa, they would not be covered by the exception.
11. Indeed, on this part of the case, the learned counsel for the petitioner referred to Article 340 of the Constitution and contended that as no Commission, as contemplated by that Article, has made any recommendations as to the steps that should be taken by the State to remove any difficulties faced by the residents of rural areas, hill areas and the Uttarkhand Division of Uttar Pradesh for improving their conditions, a mere opinion of a minion of the Government of Uttar Pradesh, however highly placed he may be, ought not to be accepted by the Court for judicially sanctioning that all the residents of those areas are socially and educationally backward. The submission was that only when a Commission has been appointed facts investigated and recommendations received that the Government could say with any justification that any class of citizens was socially and educationally backward and then the special provisions could be made under Article 15(4) of the Constitution. We do not think this contention put forward on behalf of the petitioner can carry his case much forward. Article 340 of the Constitution does not envisage a Commission for finding out and classifying the citizens who are socially and educationally backward. What it envisages is that for the removal of difficulties of citizens who are socially and educationally backward, the Commission may investigate facts and submit recommendations. When in regard to certain citizens, a Commission appointed by the President under Article 340 of the Constitution investigates facts and circumstances under which they live and exist, treating them as socially and educationally backward, that circumstance can only be a piece of evidence that that class of citizens has been so treated. So the absence of any report of a Commission under Article 340 of the Constitution set up for investigating the conditions of life of the residents of the hill areas, rural areas and Uttarkhand Division would not necessarily lead to the inference that they are not socially and educationally backward. Further, it appears that for the purpose of Article 15, the Government concerned may justifiably treat a class of citizens as socially and educationally backward depending on facts and circumstances and need not wait for appointment of a Commission by the President under Article 340 which may or may not be appointed by the President. Therefore, the question has to be answered on the material placed in the supplementary counter-affidavit, for it appears to be the settled law that the burden is on the respondents to establish by evidence that all citizens residing in the rural areas, hill areas and Uttarkhand Division of the State of Uttar Pradesh are socially and educationally backward. In the counter-affidavit sworn in by Sri Fateh Narain Rai, a Section Officer in Medical Section of the U. P. Civil Secretariat, the only material furnished in paragraph 22 was in the nature of a mere allegation to the effect that the State Government considered rural, hill and Uttarkhand areas of the State as economically undeveloped and also considered these areas backward socially and educationally. No data and particulars were furnished. This lacuna was sought to be remedied by a supplementary counter-affidavit sworn in by Sri Raj Kumar Vaish, Deputy Secretary to the Government of Uttar Pradesh in Medical Department. According to this affidavit, the population as per Census conducted in 1971 of the hill areas other than Uttarkhand Division was 24,70.286, of Uttarkhand 7,55,356 and of rural areas 7,59,96,292. It is further averred to this affidavit that about 80 per cent of the Indian Population lived in villages and 20 per cent in Urban Areas. It is obvious that in case population of the rural areas of Uttar Pradesh is considered as socially and educationally backward, then 80 per cent of the population inhabiting Uttar Pradesh will be socially and educationally backward. This is a proposition which it is impossible to accept The Division Bench in Dilip Kumar's case, AIR 1973 All 592 rightly pointed out that in making reservation of seats for candidates of rural areas the Government did not seem to have applied its mind but indulged in generalization. The social and educational backwardness of the citizen residing in rural areas has not been justified on any social survey or investigation. It will be a travesty of truth to say that all the citizens residing in rural areas of Uttar Pradesh are socially and educationally backward. Some segments of the rural population may be educationally backward. Some other segments may toe socially backward. There would be few who could be said to be both socially and educationally backward. Most of such sections of population have been classified already under our Constitution as belonging to the Scheduled Castes or the Scheduled Tribes.
12. It has been further contended in the supplementary counter-affidavit that sufficient number of candidates from rural, hill and Uttarkhand areas did not turn up for admission to the Medical Colleges and out of those who came very few could qualify and the reservations of seats were considered necessary to be made so as to attract Graduates from those areas who were otherwise handicapped in the matter of education and to feed the dispensaries therein with medical men in adequate numbers to serve the people inhabiting those areas. To our mind, the mere circumstances that a large number of candidates did not turn up for medical education from such areas and the reservation was made for them with a view to feed the dispensaries in those areas will hardly be relevant for the purpose of forming an opinion that the citizens residing in these areas were socially and educationally backward. Furthermore, lack of educational facilities to the inhabitants of these areas may result in denial of opportunity for appropriate education in recognised schools and colleges to the citizens in these areas and that may make them educationally backward but they cannot be said to be socially backward for that reason alone. No data or particulars have been furnished in the supplementary counter-affidavit to justify the opinion that all the citizens in these areas were socially backward. It is well known that very often one branch of the family resides in Urban centres and the other branch of the family continues to reside in rural areas. Both the branches as far as social habits and norms are concerned prevailing in the community to which the family belongs remain the same. Then, to say that the branch which resides in urban centre is socially forward while the branch that resides in rural centre is socially backward would be contradictory. It would, indeed, be an appalling opinion, staggering to one's imagination, that seven and half crores of the people of Uttar Pradesh residing in rural areas out of a total population of about nine crores are socially and educationally backward.
13. In the report of the Medical Education Committee appointed by the Government of India in 1969 some of the reasons given for non-availability of Doctors in health centres situate in rural areas are the difficult conditions of living, lack of accommodation, lack of basic facilities such as communications, children's education, lack of diagnostic facilities and lack of proper living conditions which do not give job satisfaction to a practitioner in rural areas. The further reason given by the Committee is that the under-graduate medical education adopted in our country is 'urban oriented' and the Medical Council of India is not able to guide the under-graduate medical education fitted to feed the rural service. In the opinion of the Committee to meet the needs what is required is a complete change of the mould so that the model brought out is suited to the rural requirements. Thus, it would be seen that the Medical Graduates will be attracted far service in rural centres when the Government provides satisfactory living and working conditions and diagnostic facilities which will afford job satisfaction to a Medical Practitioner in Rural areas through a reorientation of medical education in the country. The stand of the State of Uttar Pradesh for reservation of seats for candidates of rural areas in order to encourage the Medical Graduates settling in rural areas is belied by the Medical Education Committee Report 1969. Medical Graduates hailing from rural areas may also be disinclined to return to the villages for medical practice on account of poor facilities and they will also try to build their career in the Urban centres where they hope to have a better job satisfaction. The assertion on behalf of the State of U. P. that the reservation of seats for candidates of these areas was with a view to feed the dispensaries of these areas appears to be pretentious and cannot be a justifiable ground for making reservations. Such grounds of reservation of seats in the State-controlled Medical Colleges, will be wholly outside the ambit and scope of Article 15(4) of the Constitution. It has been suggested in the counter-affidavit that the U. P. Government takes a bond from the Medical Graduates to serve in rural areas. That, again, will be irrelevant for the purpose of taking the benefit of Article 15(4) of the Constitution.
14. There is another consideration which strikes us ,as militating against the reservation. In the instructions for reservation of seats appended to the application form it is provided that a candidate applying for admission against one of the reserved seats for rural/hill/Uttarkhand areas must submit a certificate of the District Magistrate of the District to which he belongs that he was born in rural/hill/Uttarkhand Division and has a permanent home there and is residing there or that he was born in rural/hill/ Uttarkhand Division and his parents or guardians (if parents are dead) are still living there and derive their livelihood primarily from there. Thus, it is the incident of birth in rural/hill/Uttarkhand Division which is the basic qualification for eligibility for admission against the reserved seats. Any candidate who fulfills that qualification will be admitted against the reserved quota though in the Combined Pre-Medical Test he may even secure lesser marks than many candidates competing against the general seats. This results in discriminating against the candidates who did not happen to be born in rural/kill/Uttarkhand Division. They are deprived of admission to the State-controlled Medical Colleges though they secure higher marks only because they were born in Urban Areas and their parents or guardians do not reside in rural areas and derive their livelihood from there. The State-controlled Medical Colleges are in a class of professional Colleges where after taking the requisite course in medicine the candidates who are successful in the medical examination secure eligibility either for practising medicine or for employment in Government Medical Department. Though at the stage of admission, strictly speaking, the guarantee of equality of opportunity in respect of any employment in any office under the State as is conferred under Article 16 of the Constitution may not be available to a candidate nevertheless the admission being to a professional college controlled by the State and run on public funds, the guarantee of equality of opportunity conferred by Article 16(1) of the Constitution can legitimately be extended to a candidate and he cannot be discriminated merely on the ground of place of birth, residence or any of them. It follows that such a classification based on place of birth for admission to the State-controlled Medical Colleges will not be a reasonable classification and would be hit by Article 14 of the Constitution. Article 15(1) of the Constitution which is a species of Article 14 of the Constitution also prohibits discrimination against any citizen on grounds of place of birth. But it permits by its Sub-article (4) making of special provisions for the advancement of any socially and educationally backward class as an exception to the injunction against discrimination. To the prohibition enjoined by Sub-articles (1) and (2) of Article 15 of the Constitution, the only exceptions are contained in Sub-articles (3) and (4) to that Article. For women and children, for the advancement of any socially and educationally backward class of citizens, and for the Scheduled Castes and the Scheduled Tribes special provisions can be made. There may be class of citizens born in Urban areas and residing therein who can be said to be socially and educationally backward. Merely the place of birth of a citizen in areas other than Urban areas and his parents residing and deriving their livelihood, primarily from there would not make that citizen socially and educationally backward. Such reservation or special provision as has been made by the State Government for candidates of rural/hill/Uttarkhand Division for the purpose of admission will be hit by Article 15 of the Constitution.
15. For reasons given above, we have no hesitation in holding that the reservation of seats for candidates of hill areas other than Uttarkhand Division, rural areas and Uttarkhand Division is unconstitutional and is liable to be struck down. This finding, we think, will be sufficient to afford relief to the petitioner, therefore, we need not examine the force behind the attack on the validity of the reservation of seats based on other grounds.
16. An argument was raised on behalf of the respondents that this writ petition was not maintainable as the petitioner had not impleaded the successful candidates who had been selected for admission in 1973 as any relief given to him would affect their rights. We do not find any substance in this submission. By a direction to the respondents to admit the petitioner in any one of the State-controlled Medical Colleges no right of any candidate selected for admission and who is studying in any such College would be affected prejudicially. The petitioner is not seeking admission as against any of the seats already filled. The petitioner is not pressing for quashing of the admissions already made, his learned counsel having stated that he withdraws the prayer to that effect. As admitted in the counter-affidavit, there were forty seats which remained unfilled. However, it may be observed that almost a year has already passed when the 1973 session in the State-controlled Medical College started. The petitioner cannot be admitted directly to the second year course for 1974 in the State-controlled Medical College. It is obvious that the students who had been admitted as a result of the Combined Pre-Medical Test of 1973 would not be affected.
17. The suggestion, oft repeated in the counter-affidavits as a defence, that the petitioner having knowingly signed the form and having agreed to abide by all the terms and instructions incorporated therein was not entitled to any relief on the ground of constitutional invalidity of any of such terms and instructions, has no tenability. Merely the signing of the form by the petitioner would not confer upon the State a power to discriminate in violation of the constitutional injunction. No question of estoppel or waiver arises where the State lacks the constitutional power to enforce a rule which is unconstitutional and thus ultra vires.
18. In the result, we allow the writ petition and quash paragraph 10 of the instructions on the basis of which the Combined Pre-Medical Test 1973 was conducted by the Meerut University and all other consequential orders against the petitioner and direct that the petitioner shall be admitted in the 1974 Session to any of State-controlled Medical Colleges in the first year class. The petitioner would be entitled to his costs.