Op EdsOP. ED.


If the local Government included in this category of reservations such a large number of seats, I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner.

Dr B. R. Ambedkar in Constituent Assembly Debates on 30-11-1948 Part II.[1]

History is witness; making India independent was not a cakewalk. Our great leaders had left no stone unturned to unite the newly independent but fragmented India and shape it into an Akhand Bharat. The integration of States was made possible after pacifying every section of Indian population through deliberate talks, meetings, agreements, and policies. One such policy for socially and educationally backward sections was “reservation”. Back in 1948, when the reservation policy was proposed, it was welcomed with an overwhelming response, yet with an intention to initially limit its implementation to the period of 10 years which could be extended, only if necessary.

Since then, more than 75 years have passed, Indian politicians still seem to play the “reservation” card in pursuit of their political advantage, and Indians are still brawling for quotas in educational institutions and jobs. A little while ago, in January 2019, the present Government brought a new reservation policy granting 10% reservation of seats in government jobs and educational institutions for economically weaker section (EWS). The persons who will fall into the category of EWS are those who, are not covered under the scheme of reservation for Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs).[2] This was facilitated by incorporating Articles 15(6) and 16(6) by the 103rd Constitutional Amendment Act on 14-1-2019.[3]

Since then, debates on EWS reservations have been the talk of the town. Numerous writ petitions were filed challenging the constitutional validity of the 103rd Constitutional Amendment in Supreme Court.[4] Though final decision on validity of EWS reservation and 103rd Constitutional Amendment is yet to be decided by the Supreme Court, the State and Union Governments are implementing EWS reservation scheme under the principle that there is always a presumption that the legislature understands and correctly appreciates the need of its own people and therefore, every legislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality.[5]

In July 2021, Central Government issued notifications regarding 27% reservations for OBCs and 10% quota for EWS in NEET All India Quota seats. These created furors among doctors which led them to protest and document multitudinous writ petitions in the Supreme Court. The Supreme Court heard all writ petitions under the case, Neil Aurelio Nunes v. Union of India.[6] Though the Supreme Court passed an interim order in this case allowing 27% reservation to OBC and 10% to EWS for the current academic cycle but the question is still unanswered — Is EWS reservation constitutionally valid?

To derive to the conclusion to this question, the Supreme Court sought clarifications from the Central Government by asking whether the Union Government endeavoured to take any exercise before deciding the criteria for the determination of the EWS category, whether or not EWS criteria is over-inclusive and arbitrary at the same time as it provides identical income cap both for the OBC and EWS categories, whether the regional income differences is considered before arriving at Rs 8 lakh income limit and many more related questions. This article endeavoured to analyse the answers to such micro questions in order to derive at solution to one mega question — Is EWS reservation constitutionally valid?

Definition of economic weaker section —A game changer

Definitions are of the utmost significance in legal thought, and that terms which cannot be defined should be dropped.[7] Central Government defines EWS[8] as –

“Persons who are not covered under the scheme of reservation for SCs, STs and OBCs and whose family has gross annual income below Rs 8 lakh are to be identified as EWSs for benefit of reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc. for the financial year prior to the year of application. Also, persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income:

  1. 5 acres of agricultural land and above;
  2. Residential flat of 1000 sq ft and above;

iii. Residential plot of 100 sq yd and above in notified municipalities;

  1. Residential plot of 200 sq yd and above in areas other than the notified municipalities.”

A bare reading of the definition seems to be clear, comprehensive and unambiguous, but subsequent paragraphs of this article show this definition grossly violates Articles 14[9], 15[10] and 16[11] of the Constitution.

An arbitrary definition

“It is an injustice to treat unequals as equals, just as it is an injustice to treat equals as unequals.”– Aristotle.

Reservation of OBC is based on rule of exclusion which excludes socially advanced sections of people from OBC category (creamy layer) from the purview of reservation. Criteria for determining creamy layer are given under Annexure II of Official Memorandum on Issue of Instructions on Reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes in services under the Government of India.[12] Out of 6 categories that have been set out for determining creamy layer among OBCs, one category is income/wealth test. Sons and daughters of persons having gross annual income of Rs 1 lakh or above for a period of three consecutive years would fall within the creamy layer and would not be entitled to get the benefit of reservation available to the Other Backward Classes.[13] The income slab for ascertaining the creamy layer sections was subsequently raised to Rs 2.5 lakhs, Rs 4.5 lakh, Rs 6 lakhs vide different notifications. The current income slab for creamy layer status has been raised to Rs 8 lakhs per annum.[14] Therefore, income/wealth test to determine rule of exclusion (creamy layer) and rule of inclusion (EWS) for the benefit of reservation is same.

By employing only income/wealth test to determine the category for EWS reservation, the Government has bypassed a catena of Supreme Court judgments[15], where the Court has held that neither income by itself nor caste by itself can be the sole criteria to determine social backwardness, and both income and caste together are relevant in determining the backwardness of citizens but, nevertheless, the Government has brought reservation solely based on economic factor. Not much scrutinising on the debate whether or not it is constitutionally valid to make economic factor sole criteria to determine EWS reservation; this paper will remain focus on analysing the “economic factor” already set by the Government to determine EWS reservation.

Before further examining the income/wealth test of EWS reservation through a hypothetical situation, it is pertinent to understand the meaning of “socially and educationally backward”. In Indra Sawhney v. Union of India[16] the following observation was penned down:

The expression “backward class of citizens” is neither defined nor explained in the Constitution…. However, the backward class or classes can certainly be identified with reference to caste along with other criteria nature of traditional occupation or trade, poverty, place of residence, lack of education and these factors are not exhaustive and in communities where caste is not recognised by the above recognised and accepted criteria except caste criterion…a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservations can be made in the favour of the caste.

Considering a hypothetical situation, where there are 2 families, one is General category (herein referred as Family A) and the other is OBC category family (herein referred as Family B).  Each has 4 members – father (businessman), mother (housewife), candidate, and a minor sibling. For many consecutive years, Family A’s annual income was Rs 8,50,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.) and pay tax accordingly, but due to temporary loss in business, their 2020-2021 annual income dropped to Rs 7,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.).Therefore, for the year 2020-2021, Family A falls under the definition of economic weaker section and the candidate can claim reservation under EWS category. On the other hand, Family B generally has annual income of Rs 6,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.) but due to unpredictable profit in business for 3 consecutive years the family income has raised to Rs 8,00,000 (including from all sources such as salaries, agriculture, traditional artisanal professions, etc.). This implies that now a candidate from Family B falls under creamy layer status and cannot claim reservation. This implies that backward class community who are socially and educationally deprived for years but only due to economic growth in 3 consecutive years they are not been given reservation benefit, but parallel to this, general category community who are neither socially nor educationally nor economically deprived but due to loss in business in a single year will make them eligible for reservation.

The Central Government tries to explain the differences between Rs 8 lakhs income test of EWS criteria and creamy layer criteria on the basis of definition of “family”, constituents of “annual income” and considering 3 consecutive years in OBC and prior year annual income in EWS. But from this hypothetical situation it can be concluded that despite the differences between the two Rs 8 lakh income slabs, the Government are treating unequal equally and therefore violate Article 14 of the Constitution.

Even though Central Government accepts the proposal to increase the income limit of Rs 8 lakhs to 12 lakhs for determining the creamy layer among OBCs17, the over-inclusive nature of Rs 8 lakh income slabs for determining EWS category will still make it a problematic policy to implement.

An over-conclusive definition

In India, the income tax structure is designed in such a way that up to Rs 2,50,000 annual income, no tax rate is levied. Above Rs 2,50,000, different tax rate is imposed according to different income slab. It is pertinent to note that neither in existing tax regime nor in new tax regime, Rs 8,00,000 is made upper limit or lower limit of any income tax slab. The present government reports that for Financial Year 2018-2019 till February 2020, only 1% of the Indian population pays income tax. Meaning thereby, out of 138 crore populations, only 5.78 crore individuals are taxpayers and out of these total taxpayers, only 1.46 crores individual filed income tax returns above Rs 5 lakhs income tax slab.18It would be wrong to argue that due to tax evading practices in India there are so few taxpayers. As per the data released by the Government, 75% Indians have annual income less than Rs 5lakhs and 17% Indians have income between Rs 5 lakhs to 10 lakhs.19 According to the Government’s Economic Survey 2020-2021, per capita income of India in 2020-21 is Rs 1,26,96820, which means the average Indian earns Rs 1.3 lakhs (approx.) in a year. These statistical data implies that the bulk of population will be eligible for EWS reservations within Rs 8 lakhs income bracket, making it an unreasonable and irrational threshold.

Inequality among Indian States

In a country like India, where inter-State disparity and regional income inequality prevails across the Indian States21, Government has imposed Rs 8 lakh income cap as a uniform income-based threshold which is uniformly adopted across the country. As per  RBI Handbook of Statistics on Indian States, per capita net State domestic product for the year 2020-2021 is highest in Goa (Rs 4,72,216) followed by Sikkim (Rs 4,24,454) and Delhi (Rs 3,54,004) and lowest in Bihar (Rs 46,292), Uttar Pradesh (Rs 65,431) and Jharkhand (Rs 75,587).22 This implies that State economic production value attributed to per person of Goa, Sikkim and Delhi is much higher than that to per person of Bihar, Uttar Pradesh and Jharkhand. Under this background, it can be concluded that majority population from Bihar, Uttar Pradesh, Jharkhand and other low per capita (NSDP) States will fall under 10% EWS reservation. Therefore, Rs 8 lakhs income criterion is over-inclusive.

On the substratum of the above discussion, it can be very well stated that the scheme of EWS reservation suffers from the vice of non-application of mind by the authority concerned, as the Union Government had “mechanically” adopted Rs 8lakhs cut-off without endeavouring to undertake any appropriate exercise before determining the criteria for EWS reservation. This act of arbitrariness by the Government manifests flagrant violation of the constitutional mandate of Article 14.

Is even10% valid

The Report of the National Backward Classes Commission states forward Hindu caste and communities (which includes Brahmins, Bhumihars, Rajputs, Marathas, Jats, Vaishyas-Bania, Kayasthas and other forward Hindu castes) constitute 17.58% of the population.23 In addition to these 17.58%, Buddhist (0.67%) and Jains (0.47%) are also not covered under any scheme of reservations. This data has been recently used by  the Supreme Court in deciding the civil appellate/original jurisdiction case Jaishri Laxmanrao Patil v. Chief Minister (also called Maratha Reservation case).24 Based on the calculation of above data, it can be estimated that the total population outside the purview of reservation benefit in India is not more than 20%. For 20% socially and educationally forward population, the Government has reserved 10% seats in government jobs and education institutions with over-inclusive income brackets.

Though 50% has been set as the maximum limit for caste-based reservation, but this ceiling can be crossed in extraordinary circumstances.25Unfortunately, the Government is treating the underline situation as extraordinary in order to validate the breaching of 50% reservation ceiling while implementing 10% EWS reservation. Before delving into the discussion of whether the present matter falls within the ambit of an extraordinary situation, it is necessary to understand what comes under an extraordinary situation. Indra Sawhney case26 has given illustration regarding certain extraordinary situation in para 810 of the said judgment:

  1. … It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

The Supreme Court in para 475 of Maratha Reservation case27agreed that the expression in far-flung and remote areas” incorporates geographical test and “the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them” incorporates social test. In the same paragraph of the abovementioned case, the Supreme Court held that:

475 … one of the social conditions in para 810 (of Indra Sawhney case28) is that (not) being within the mainstream of national life, the case of Maratha does not satisfy the extraordinary situations as indicated in para 810 of Indra Sawhney29, as the Marathas are in the mainstream of the national life….30

The above discussion makes it clear that due to over-inclusive nature of EWS definition, people from mainstream of national life are also covered for the benefit of reservation and therefore, the present case does not quench the extraordinary situations as specified in Indra Sawhney judgment31. Overstepping the 50% reservation maximum cap without there being any instance of extraordinary circumstances clearly flouts Articles 14 and 16 of the Constitution, which makes the enactment ultra vires.32

Under this background, it would not be wrong to conclude that the EWS reservation scheme criteria have been implemented without taking due consideration of gross domestic product (GDP)/per capita income, inter-State economical differences, rural urban purchasing power and other various data. This is a blatant manifestation of political moves in the guise of policy implementation with a lack of up-to-date and quantifiable data. In the line of a series of recent judgments, the Supreme Court and High Courts33 have called attention to the significance of quantifiable data as a mandatory prerequisite for the reservation scheme in education and employment. In Jaishri Laxmanrao Patil v. Chief Minister34, the Supreme Court reiterated the observation held in M. Nagaraj v. Union of India35 that if they are making provisions related to reservations, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation. The Supreme Court in Maratha Reservation case36 has struck down the reservation policy for Maratha as the Government could not back up the reservation policy with appropriate, adequate and quantifiable data. Same might be the fate of EWS Reservation policy, if the authority concerned could not come up with the necessary modification in tuned with appropriate and quantifiable data.


In India, the “reservation” is getting deceptively complex with each passing day. Judiciary with its legal power consistently engrossed in simplifying the puzzle posed by the regular conflicting interest between the Indian politicians, who once in 5 years deliberate on “reservation” as their election manifesto to secure their vote bank and the stakeholders, who for the entire 5 years agitate either “for” reservation or “against” reservations. The present Government by bringing EWS reservation has though chosen bold path but with wobble steps which, if get implemented will result in more harm than good. Considering the present scenario, the Supreme Court can lead the case to three different possible situations: first, upheld the 103rd Constitutional Amendment Act, 2019; second, partially upheld by recommending certain modification in income bracket and quantum of seats reserved; and third, quash the 103rd Constitutional Amendment Act, 2019 on basis of sole economic criterion and exceeding 50% reservation cap. Whether the Supreme Court ends the controversy with these expected outcomes or adopts a different strategy to decide the case is yet to be seen.

*5th year student, B.A-LL.B, National University of Study and Research in Law, Ranchi. Author can be reached at subhashni.kumari@nusrlranchi.ac.in.

[1]Constituent Assembly Debates, Vol. 7, 30-11-1948 speech by Dr B.R. Ambedkar, p. 702.

[2]Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, Official Memorandum No.36039/1/2019-Estt (Res) (notified on 31-1-2019).

[3]Constitution (103rd Amendment) Act, 2019, Arts. 15(6) and 16(6).

[4] Janhit Abhiyan v. Union of India, 2020 SCC OnLine SC 624.

[5]State of Bombay v. F.N. Balsara, AIR 1951 SC 318.

[6] 2022 SCC OnLine SC 75.

[7] Huntington Cairns, A Note on Legal Definitions, 36 Columbia Law Review 1099, 1099 (1936),


[8]Government of India, Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training, Official Memorandum No.36039/1/2019-Estt (Res) (notified on 31-1-2019).

[9]Constitution of India, Art. 14.

[10]Constitution of India, Art. 15.

[11]Constitution of India, Art. 16.

[12] Government of India Ministry of Personnel, Public GrievancesandPensions Department of Personnel & Training Official Memorandum No.36011/6/2010-Estt.(Res), (Notified on 25-6-2010),


[13] Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel &Training Office Memorandum No. 36012/22/93-Estt. (SCT) (Notified on 8-9-1993).

[14] Government of India Ministry of Personnel, Public Grievances and Pensions, Department of Personnel &Training Office Memorandum No. 36033/1/2013-Estt. (Res.) (Notified on13-9-2017).

[15]Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420; K.S Jayasree v. State of Kerela, (1976) 3 SCC 730.

[16]1992 Supp (3) SCC 217, para 243.

17Rahul Srivastava, Centre Considering Proposal to Revise Income Criteria for Determining Creamy Layer among OBCs,India Today (3-2-2021), <https://www.indiatoday.in/india/story/centre-considering-proposal-to-revise-income-criteria-for-determining-creamy-layer-among-obcs-1765327-2021-02-03>.

18Only 1% Indians Pay Income Tax, Government Tells Lok Sabha, Business Today, <https://www.businesstoday.in/latest/economy-politics/story/only-1-percent-indians-file-income-tax-govt-tells-lok-sabha-273519-2020-09-21> (last visited on 8-1-2022).

19Only 1% of Taxpayers Earn over Rs 50 Lakhs: Government Data, Times of India, <https://timesofindia.indiatimes.com/business/india-business/people-earning-less-than-2-5-lakh-constitute-57-of-taxpayers-govt-data/articleshow/77519141.cms> (last visited on 10-1-2022).

20Statistical Appendix: Economic Survey 2020-21, <https://www.indiabudget.gov.in/economicsurvey/doc/Statistical-Appendix-in-English.pdf> (last visited on19-1-2022).

21Government of India, Ministry of Finance Department of Economic Affairs Economic Division, Economic Survey 2020-21, Vol. 1, Ch. 4, Inequality and Growth: Conflict or Convergence, 121-149,


22RBI Handbook of Statistics on Indian States Report, <https://rbidocs.rbi.org.in/rdocs/Publications/PDFs/16T_241121E38C1EC7A0CE444BB1D875B6CBAC913B.PDF > (last visited 8-1-2022).

23Government of India : Report of the Backward Classes Commission (Mandal Commission Report), Part 1, Vol. I, p. 56.

24(2021) 8 SCC 1.

25Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

261992 Supp (3) SCC 217, 735.

27JaishriLaxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 247.

281992 Supp (3) SCC 217.

291992 Supp (3) SCC 217.

30Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 247, para 475.

311992 Supp (3) SCC 217.

32Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, 254, para 493.

33V.V.Saminathan v. Govt. of T.N., 2021 SCC OnLine Mad 5646.

34(2021) 8 SCC 1, 245, para 466.

35(2006) 8 SCC 212.

36Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1.

Case BriefsSupreme Court

Supreme Court: In a detailed judgment, the bench of Dr. DY Chandrachud and AS Bopanna, JJ has upheld the Constitutional validity of the reservation for OBC candidates in the AIQ seats for PG and UG  medical and dental courses and noticed that while 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.

It is important to note that considering the urgent need to commence the process of Counselling, the Court had, on January 7, 2022, directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats. Read here

Purpose of Reservation

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.

Special provisions (like reservation) enable 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. 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 family‘s 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.

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.

What is “merit”?

““Merit” is not solely of one‘s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.”

Thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making. However,

“While examinations are a necessary and convenient method of distributing educational opportunities, marks may not always be the best gauge of individual merit. Even then marks are often used as a proxy for merit. Individual calibre transcends performance in an examination. Standardized measures such as examination results are not the most accurate assessment of the qualitative difference between candidates.”

At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, which are also shaped by lived experiences, subsequent training and individual character.

Hence, the meaning of “merit” itself cannot be reduced to marks even if it is a convenient way of distributing educational resources. When examinations claim to be more than systems of resource allocation, they produce a warped system of ascertaining the worth of individuals as students or professionals. Additionally, since success in examinations results in the ascription of high social status as a “meritorious individual”, they often perpetuate and reinforce the existing ascriptive identities of certain communities as “intellectual” and “competent” by rendering invisible the social, cultural and economic advantages that increase the probabilities of success.

For instance, if a high-scoring candidate does not use their talents to perform good actions, it would be difficult to call them “meritorious” merely because they scored high marks. The propriety of actions and dedication to public service should also be seen as markers of merit, which cannot be assessed in a competitive examination. Equally, fortitude and resilience required to uplift oneself from conditions of deprivation is reflective of individual calibre.

Hence. merit should not be limited to individual agency or but it should be envisioned as a social good that advances equality because that is the value that our Constitution espouses.

Whether after graduation, an individual is entitled to reservation on the ground that they belong to a class that suffers from social and educational backwardness?

The Court observed that 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 taking the benefit of reservation. Thus, we find that there is no prohibition in introducing reservation for socially and educationally backward classes (or the OBCs) in PG courses.

Why is reservation for OBC candidates in the AIQ seats for UG and PG medical and dental courses constitutionally valid?

  • Articles 15(4) and 15 (5) are not an exception to Article 15 (1), which itself sets out the principle of substantive equality (including the recognition of existing inequalities). Thus, Articles 15 (4) and 15 (5) become a restatement of a particular facet of the rule of substantive equality that has been set out in Article 15 (1);
  • Merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity. Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character. Crucially, open competitive examinations do not reflect the social, economic and cultural advantage that accrues to certain classes and contributes to their success in such examinations;
  • High scores in an examination are not a proxy for merit. Merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value. In such a context, reservation is not at odds with merit but furthers its distributive consequences;
  • Articles 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 certain individual members of an identified group that is being given reservation may not be backward or individuals belonging to the non-identified group may share certain characteristics of backwardness with members of an identified group. 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;
  • The scheme of AIQ was devised to allot seats in State-run medical and dental institutions in which students from across the country could compete. Providing reservation in the AIQ seats is a policy decision of the Government, which will be subject to the contours of judicial review similar to every reservation policy;
  • Clause 11 of the information bulletin specifies that the reservation applicable to NEET-PG would be notified by the counselling authority before the beginning of the counselling process. Therefore, the candidates while applying for NEET-PG are not provided any information on the distribution of seat matrix. Such information is provided by the counselling authority only before the counselling session is to begin. It thus cannot be argued that the rules of the game were set when the registration for the examination closed.

[Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 75, decided on 20.01.2022]

*Judgment by: Justice Dr. DY Chandrachud


For petitioners: Senior Advocates Arvind Datar, Shyam Divan and Anand Grover and AORs Charu Mathur, Vivek Singh, Subodh S. Patil

For Respondents: SG Tushar Mehta, ASG Nataraj, Additional Solicitor General, ASG Vikramajit Banerjee and Senior Advocates P Wilson, Mariarputham

Case BriefsSupreme Court

Supreme Court: Considering the urgent need to commence the process of Counselling, the bench of Dr. DY Chandrachud* and AS Bopanna, JJ, has directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats.

The order came after the notice issued by the Directorate General of Health Services in the Union Ministry of Health and Family Welfare on 29 July 2021 was challenged by the doctors who appeared in the NEET- PG 2021 examination.

The notice implements a 27 per cent reservation for Other Backward Classes1 (non-creamy layer) and a 10 per cent reservation for the Economically Weaker Section, while filling up 15 per cent undergraduate and 50 per cent post-graduate All India Quota seats in pursuance of the National Eligibility cum Entrance Test. The notice takes effect from the current admission year, 2021-2022.

It was argued before the Court that there cannot be any reservation for the OBC and EWS category in the AIQ seats in NEET-PG and that the criteria for the determination of the EWS category notified by O.M 36039/1/2019 (OM 2019) was unconstitutional.

On 25 October 2021, the Union Government of its own accord deferred the counselling due to the pendency of the petitions. Thereafter, the Union Government filed an affidavit justifying the EWS criteria on 26 October 2021 stating that the criteria was adopted after due deliberation within the Ministry of Social Justice and Empowerment and all the concerned stakeholders.

The Union Government formed the Panday Committee on 30 November 2021 to review the criteria for identifying EWS. The Committee submitted its report on 31 December 2021. Thereafter, the Union Government filed an affidavit before this Court accepting the recommendations of the Committee including the recommendation that the existing criteria for identifying EWS be retained for the present admission year 2021-2022.

While the Supreme Court observed that the formulation of the reasons in the interim order on the EWS reservation would take some time, it upheld the validity of the OBC reservation in the AIQ seats in NEET-PG and NEET-UG and directed that the counselling be conducted in order to ensure that the admission process is not dislocated.

The Court further directed that,

  • The criteria for the determination of the EWS notified by OM 2019 shall be used for identifying the EWS category for candidates who appeared for the NEET-PG 2021 and NEET-UG 2021 examinations;
  • The validity of the criteria determined by the Pandey Committee for identification of EWS would prospectively for the future be subject to the final result of the petitions; and
  • The petitions shall be listed for final hearing on the validity of the EWS criteria as recommended by the Pandey Committee in the third week of March 2022.

[Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 21, decided on 07.01.2022]

*Judgment by: Justice Dr. DY Chandrachud


For petitioners: Senior Advocates Arvind Datar, Shyam Divan and Anand Grover and AORs Charu Mathur, Vivek Singh, Subodh S. Patil

For Respondents: SG Tushar Mehta, ASG Nataraj, Additional Solicitor General, ASG Vikramajit Banerjee and Senior Advocates P Wilson, Mariarputham

Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and P.D. Audikesavalu, J. while addressing the contempt petition, expressed that,

Merely because the immediate lis pertains to the contempt jurisdiction would not imply that this court sheds its plenary authority under Article 226 of the Constitution while considering the manner of implementation of the said order. 

Rather than the caste system being wiped away, the present trend seems to perpetuate it by endlessly extending a measure that was to remain only for a short duration to cover the infancy and, possibly, the adolescence of Republic. Though the life of a nation state may not be relatable to the human process of aging, but at over-70, it ought, probably, to be more mature.

Factual Background

Petitioner is stated to be a political party, one which has returned to power in this State following the Assembly elections conducted a few months back. Most major political parties in the State had filed the other petition that came to be decided the Order dated 27-07-2020 (“the said order”).

Petitions that were decided by the said order sought implementation of reservation for Other Backward Classes (OBC) in the All India Quota (AIQ) of the seats surrendered by the State for admission to the under-graduate, post-graduate and diploma medical and dental courses in the State. Reservation implementation was sought from 2020-21.

Request for interim relief, was rejected with the observation that this court was justified in holding that since the selection process for the relevant academic year had commenced, the same could not be disturbed. However, the appeals remain pending and, in such sense, the order of this Court of July 27, 2020, has not attained finality, though there is no impediment to it being implemented in academic year 2021-22.

Analysis, Law and Decision

While addressing the matter, Court observed that,

If a pool of seats is available to candidates from all over the country, irrespective of an individual’s place of residence, the State-wise reservation, which is based on demography of the State, cannot hold good for the entire country as the mix of socially backward classes would differ from region to region even within a State.

Court added that, Ordinarily, reservations pertaining to admission to educational institutions and appointments to government service are provided by statutory enactments or rules under a particular statute.

Difficulty, in the present case, arises in the fact that the present contempt petition arises out of an order which has been carried to the Supreme Court by way of an appeal and an interim order in the appeal observed as to the import of the order dated July 27, 2020

To elaborate more, the Bench added that the matter is of some importance as the careers of not only the prospective all-India candidates in the medical entrance seats surrendered by the State in the AIQ would be affected by the present order, it may also have an all-India impact, subject to what may ultimately be decided by the Supreme Court.

Coming to the question, whether the said order of this Court has been complied with?

Bench noted that:

to the extent that a committee was constituted and the committee made its recommendations, the order has been complied with. However, the order may not have contemplated that neither recommendation of the committee would be accepted and a third alternative would be imposed by the Union, though the order required consultation between several stakeholders to arrive at an informed decision. Equally, the first option indicated by the committee was no option at all, as it was absurd to suggest that the State reservation rules would apply to AIQ seats for admission to the under-graduate, post- graduate and diploma medical and dental courses in the State since that would, ipso facto, take the seats away from the AIQ pool back to the State as only backward classes as notified by the State in its official gazette would be entitled to the reservation and not candidates not resident in the State.

Adding to the above, Court expressed that, it is true that the petition before this Court is one for the perceived breach of a previous order of this court, but if the present petition were to be ineffectively disposed of that would result in another petition, multiplicity of proceedings and the issue being left unresolved.

It may be in the public interest, at times, for courts to be decisive, without being rash, of course.

At least there is a safety net even if this court goes wrong for the matter to be decided at the highest stage; but a decision is called for in the matter in the larger public interest.

Analyzing further, the Bench stated that the AIQ scheme had been introduced for entrance to under-graduate and post-graduate degrees and diploma courses in government-run or aided medical and dental colleges across the country pursuant to orders of the Supreme Court.

To the extent that 27 per cent of the seats available for admission in Central educational institutions is reserved for OBC candidates, other than the creamy layer, and such figure having been arrived at upon empirical studies being conducted, the provision for 27 per cent reservation for OBC candidates, in addition to the approved reservation for scheduled caste and scheduled tribe candidates as indicated in the notification of July 29, 2021, may be permissible, subject to the formal approval of the Supreme Court being obtained in such regard.

Another significant point expressed by the Court was that, if the AIQ seats are thrown open to candidates across the country, there cannot be reservation to one extent in one State and reservation to another extent in another State.


  1. Since the committee required to be constituted by the order dated July 27, 2020, was constituted and such committee gave its opinion and the Union, or its appropriate agencies, have acted on the basis thereof – albeit not exactly in terms of the recommendations – no case of wilful or deliberate violation of the said order can be said to have been made out.
  2. The notification of July 29, 2021, issued by the Union as a consequence of the order dated July 27, 2020, appears to be in order insofar as it provides for reservation for scheduled castes, scheduled tribes and OBC categories. The horizontal reservation provided in such notification for persons with disabilities also appears to be in accordance with law.
  3. The additional reservation provided for economically weaker sections in the notification of July 29, 2021, cannot be permitted, except with the approval of the Supreme Court in such regard.

In view of the above, contempt petition was dropped.

“…entire concept of reservation that appears to have been addressed by the Constituent Assembly while framing the Constitution may have been turned on its head by repeated amendments and the veritable reinvigoration of the caste system – and even extending it to denominations where it does not exist – instead of empowering citizens so that merit may ultimately decide matters as to admission, appointment and promotion.”

 [Dravida Munnetra Kazhagam v. Rajesh Bhushan, 2021 SCC OnLine Mad 4851, decided on 25-08-2021]

 Advocates before the Court:

For the Petitioner: Mr. P. Wilson, Senior Advocate for M/s. P. Wilson Associates

For the Respondents: Mr. K.M. Nataraj

Additional Solicitor-General of India assisted by Mr. V. Chandrasekaran

Senior Panel Counsel for respondents 1, 2, 4 and 8

: Mr. P. Muthukumar Counsel for the State for respondents 6 and 9

: Ms. Shubharanjini Ananth Standing Counsel  for 3rd respondent

: Service awaited for respondents 5 and 7

Legislation UpdatesNotifications

On July 29, 2021, the Government has announced 27% reservation for the OBCs (Other Backward Classes) and 10% quota for the Economically Weaker Sections (EWS) in the All India Quota (AIQ) scheme for undergraduate (UG) and postgraduate (PG) medical / dental courses (MBBS / MD / MS / Diploma / BDS / MDS) from 2021-22 onwards.

Source: PIB

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Sanjay Yadav and Rajendra Kumar Srivastava, JJ., dismissed a writ petition which was raised alleging disproportionate distribution of increased Post Graduate Medical seats in Clinical and Non-Clinical subjects. The Petitioner sought to strike down complete process of admission in Post Graduate Medical seats through NEET-PG 2020 and that the respondents be restrained from allotting the seats to EWS quota candidates by reducing the seats of unreserved category students.

It was contended that vide said communication dated 17-01-2019, Chief Secretaries of all State Governments/Union Territories were requested to give effect to the provisions of 103rd Amendment of the Constitution for all higher educational institutions funded/aided, directly or indirectly, by the State Government in such manner that the provision for reservation for EWS would become operational from academic year 2019-20. It was urged that in the State of Madhya Pradesh, 187 seats have been increased under Section 10A of the Indian Medical Council Act, 1956 for EWS category which was disputed by the Deputy Advocate General and it was urged that as per MCI’s letter dated 20-02-2020, 87 seats were needed to be increased for implementation of 10% EWS quota and not 187, as contended. Be that as it may, there is no cogent material on record to establish that the seats under 10% EWS quota for academic session 2020-21 were increased by 187. Therefore, the contention to said effect made on behalf of the petitioner is discarded.

Dwelling on the contention regarding actual distribution of Post Graduate medical seats in various streams, it was urged on behalf of the respondents/State that they include Post Graduate medical seats for PWD candidates which are 22 displayed on MP Online Portal and DME website; therefore, it is contended that there are 420 Post Graduate medical seats and not 398, as depicted by the petitioner. Respondents have further justified allocation of 14, 16 and 7 seats in General Medicine, General Surgery and Ophthalmology respectively for UR category which, it was urged, amounted to 40% of the seats reserved for the said category.

The Court discussed in detail the 103rd amendment of the of the Constitution of India and concluded that Amendment enables the State to make provision for not more than 10% reservation to economically weaker sections who are not covered under the existing scheme of reservation for the Scheduled Castes, Scheduled Tribes and Socially & Educationally Backward Classes, to receive the benefits of reservation on a preferential basis, meaning thereby that a class to be determined as EWS out of General Category are to be provided 10% reservation. In other words, with 50% reservation already in existence in favour of ST/SC/OBC, out of remaining 50%, 10% reservation is carved out for EWS, which leaves the unreserved category with 40% reservation.

The Court after carefully studying the distribution of seats as submitted by the respondents came to a conclusion that though total number of seats have been increased from 155 of the year 2019 to 160 of the year 2020 but, the respondents/State, without proper application of mind, has reduced the clinical seats for general category as compared to the previous year. The Court finally found that the contention that the reservation exceeds 50% was belied.

The Court dismissed the petition finding that there was no substance in the challenge.[Kanishk Bhandari v. State of M.P., Writ Petition No. 7831 of 2020, decided on 14-07-2020]

Suchita Shukla, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: In an interesting case Sanjay Kumar Dwivedi, J., had held that the 10% reservation to Economically Weaker Sections cannot be applied retrospectively.

The petitioners had preferred this writ petition for quashing the Advertisement No.05/2019, so far as it relate to the appointments to be made on the post of Assistant Engineer (Civil) to the extent of retrospective applicability of 10% reservation for Economically Weaker Section (EWS) reservation. The prayer was also made for quashing of the decision to conduct single selection process on the vacancies of the year 2013 and 2015 respectively.


The facts of the case were that the Road Construction Department vacancies for the post of Assistant Engineer (Civil) were published in the year 2013 wherein petitioners had applied to participate in the selection process for their direct recruitment. The number of unreserved posts advertised was 105 vacancies. There was no EWS reservation of 10% quota applicable at that point of time. Later on, by another Advertisement No. 06 of 2015, the department earmarked vacancies to be filled up for the post of Assistant Engineer (Civil) in the year 2015. The petitioners eligible on all counts, applied to participate in the selection process for their direct recruitment. The number of unreserved posts advertised was 93 vacancies again; there was no EWS reservation of 10% quota applicable at that point of time. However, no selection test was conducted pursuant to above two advertisements.

The grievance of the petitioners was that the respondent-department further published Advertisement No.05 of 2019 to make appointment on the post of Assistant Engineer (Civil). The earlier advertisements had been superseded by the current advertisement, which contains merged vacancies of advertisements of 2013 and 2015 and also current vacancies of 2019. Due to merger of vacancies, the seats which were available in the year 2013 and 2015, had been brought under the cover of current advertisement of the year 2019, wherein 10% reservation for EWS had been made applicable retrospectively for all the earlier vacancies. Aggrieved with the merger part of the earlier advertisements, the petitioners had filed the instant petition.

Grievance of the Petitioners

The counsel for the petitioners, Mr. Saurabh Shekhar submitted that the petitioners were not EWS candidates, and therefore, the applicability of reservation quota would adversely affect their right on earlier vacancies, on which the provisions of EWS could not be made applicable retrospectively. It was further submitted that 52 seats had been earmarked for EWS candidates separately, but these seats had been carved out from the unreserved quota, as the reservation point had been increased by 10%, thereby, enhancing the upper limit of reservation 60%, but that had to be done on post facto vacancies. Therefore, the counsel contended that the petitioners would suffer as the vacancies in unreserved quota had been reduced by applicability of EWS in the vacancies of earlier selection process.

Whether EWS reservation can be given effect retrospectively or not?

Reliance was placed by the Court on M. R. Balaji v. The State of Mysore, AIR 1963 SC 649, wherein the Constitution Bench of the Supreme Court had rejected the argument that in the absence of a limitation contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation. It had also been observed that a provision under Article 15(4) being a special provision must be within reasonable limits. Again, in Indra Sawhney v. Union of India, reported in 1992 Supp (3) SCC 217, the Constitution Bench of the Supreme Court had approved the view taken in the case of M. R. Balaji by providing proposition that the extent of reservation shall not exceed to 50% of the appointment of post except in certain extraordinary situation taking together with reservation in favour of Scheduled Caste and Scheduled Tribe category candidates.

Admittedly, 103rd Amendment Act, 2019 which introduced the reservation for EWS was made effective w.e.f. 14-01-2019. The Government of Jharkhand by way of resolution dated 15-02-2019 had also adopted the said amendment. In view of Clause 11 of that resolution, it was clear that the reservation would be effective w.e.f. 15-01-2019 in subsequent advertisement. Thus, that reservation could not be allowed to be made effective with retrospective effect, which was against the mandate of the Constitution which is the fountain of all the Statutes. The Bench clarified,

“At the time of advertisement of 2013 and 2015, 10% reservation for EWS was not there and by way of clubbing the vacancies, 10% reservation for EWS has been provided in the vacancy of 2013 and 2015, which is against the mandate of the Constitution of India. The merger of earlier advertisements, which has been made effective retrospectively, is against the constitutional scheme.”

Hence, reservation for EWS which had been made effective in the garb of resolution dated 15-02-2019, along with the vacancy of the year 2013 and 2015 could not be allowed. The Bench stated,

“The respondent-State has already come out with advertisement of the year 2013 and 2015 respectively, which was cancelled subsequently. This appointment was required to be completed adhering to the extent of reservation up to 50%. Thus, the said vacancies are required to be filled up in terms of Rule of that time.”

In view of the above, the impugned Advertisement No. 05 of 2019 was set aside and the Court declared that retrospective application of 10% EWS quota is against Articles 14 and 16 of the Constitution of India. Consequently, the State Government was directed to modify the impugned Advertisement to the extent that 10% quota for EWS should not be made effective retrospectively for the vacancy of the year 2013 and 2015. Similarly, ongoing appointment process were declared contrary to the constitutional mandate and hence, held to be illegal.

Accordingly, the State was directed to advertise those posts separately within eight weeks and modify the impugned advertisement of 2019 in light of 103rd Amendment of Constitution.[Ranjeet Kumar Sah v. State of Jharkhand, 2021 SCC OnLine Jhar 78, decided on 21-01-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioners: Mr. Saurabh Shekhar, Advocate

For the Respondent-State: Mr. Rajiv Ranjan, Advocate General, Mr. Mohan Kumar Dubey, A.C. to A.G.

For the Respondent-JPSC: Mr. Sanjay Piprawall, Advocate

Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., directed that the petitioner, belonging to the Maratha caste, be considered for providing the benefit of EWS quota albeit a rider.

In the instant petition, the petitioners stated that they belong to the ‘Maratha Caste’ and have applied from E.W.S Category in the central format.

The same is categorized as S.E.B.C. Because of the G.R. dated 28-07-2020, a person from the reserved category cannot apply from E.W.S. Supreme Court had stayed the reservation of S.E.B.C

Further, the petitioners state that they will give an undertaking that they would not claim the benefit of reservation for educational purpose at any point in time.


Bench held that respondents may not deny the EWS Certificate to the petitioners only on the count of them belonging to the Maratha caste hence shall consider them on the production of the EWS Certificates required as per the rules from EWS Category.

Adding to the above, Court also stated that the petitioners shall not be entitled to any benefit of reservation for educational purposes once having been admitted from EWS Category.

Petitioners will have to prove before the Tahsildar that they belong to the economically weaker section then only would be entitled to EWS certificate.

Court expressed that:

If the petitioners are issued with the EWS certificates in the State format and undertaking is filed by the petitioners that during the entire educational career, they would not claim benefit of any reservation, either vertical or horizontal except EWS category, then the petitioners be considered for admission from EWS category.

[Vaishnavi Maroti Wadje v. State of Maharashtra, 2020 SCC OnLine Bom 4350, decided on 18-12-2020]

Case BriefsCOVID 19High Courts

“Education is the passport to the future.”

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., while addressing the issue with regard to digital education observed that

“…tuition fee was payable towards imparting education and “not for a lien on a seat”

Schools imparting Synchronous Face-to-face Real-Time Online Education, not as a voluntary service but as a part of their responsibility under the RTE Act, 2009.


Inequality in education has been around long before Covid-19, but the pandemic has exacerbated the same by adding another strand/element to it, namely, the digital divide.

Reopening of physical classroom

Unparalleled education disruption from the Covid-19 pandemic is far from over, as, despite lapse of nearly six months, the Union of India and the Government of NCT of Delhi are yet to announce a date for reopening of the physical classroom for elementary schools.

Concern in the present petition

The instant Public Interest Litigation was filed seeking a direction to respondents to supply free laptops/android mobile phones/electronic tablets with high-speed internet to children belonging to the Economically Weaker Section (EWS) so that they could attend their classes by way of video conferencing just like fee-paying students in their classes.

During the pendency of the present petition, some other schools also started online classes, the petitioner sought modification in the prayer clause to include children studying in these schools, so that comprehensive orders could be passed under Article 21A of the Constitution of India for all the children other than fee-paying students.

Analysis and Decision

Article 21A of the Constitution imposes an enforceable/justiciable obligation upon the State to provide free and compulsory elementary education to each and every child between the age of six and fourteen in a manner as determined by law.

In pursuance of the above stated constitutional obligation, the Centre enacted the RTE Act, 2009.

Court cited the Supreme Court decision in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, wherein it was held that,

Universal elementary education as a constitutional goal and obligation is a salutary principle and while interpreting the provisions of the RTE Act, 2009, Article 21A has to be the guiding principle.

Supreme Court in Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1 held that,

“…the Constitution being a living and dynamic document ought to receive a dynamic and pragmatic interpretation that harmonizes and balances competing aims and objectives and promotes attainment of natural goods and objections.”

RTE Act, 2009 is not a historical Act but an ‘always speaking statute’ which intends to achieve social, economic and political equity and human progress over a period of time.

Court observed that,

RTE Act, 2009 is not a static but a living and a dynamic document and it ought to receive a pragmatic interpretation.

Consistent with the legislative intent, an updating construction has to be applied to RTE Act, 2009 and the Court of law can deal with a drastically changed situation, like Covid-19 pandemic, even if it was not known or visualized by Parliament when the Act was enacted.

Adding to its’ analysis, Court stated that the new National Education Policy, 2020 prepared by the Government of India states that education is fundamental for achieving full human potential, developing an equitable and just society, and promoting national development.

Why the RTE Act, 2009 does not define the word ‘Education’?

Bench in the present matter was of the view that the RTE Act, 2009 intentionally does not define the word Education as it needs to deal with changes in society as well as technological advances, outbreak of diseases, natural calamities and a broad range of circumstances that are not possible to anticipate in advance.

Concept of synchronous face-to-face real-time online education

The concept of Synchronous Face-to-Face Real Time Online Education like any other alternate means/methods of dissemination of education, in that sense, is covered under the RTE Act, 2009.

The teaching through online means is in accordance with the RTE Act, 2009 requirements.

Adding to the above, the Court stated that at the present, the neighborhood schools are still open but the physical classrooms are closed and the mode of providing education has changed.

Court is of the view that tuition fees are payable towards imparting education and not for a lien on a seat. Accordingly, the word Education includes Synchronous Face-to-Face Real Time Online Education and respondent schools are estopped from contending to the contrary.

Differential Fee Structure

Section 12(2) of the RTE Act, 2009 unequivocally proves the existence of a differential fee structure amongst private unaided schools and consequently, differential methods/means of dissemination of instructions amongst the private schools.

Further, the Court added that just as private schools are free to adopt the mode of the method of imparting education they feel the most appropriate, the government schools also have similar freedom and flexibility.

There is neither any statutory obligation under the RTE Act, 2009 nor any recommendation by any statutory authority like State Academic Authority that the Synchronous Face-to-Face Real Time Online Education is the only suitable option during a pandemic.

High Court also opined that in view of the geographical location of a school or non-availability of technologically savvy teachers or poor availability of electricity or lack of internet penetration in the neighbourhood, it may also not be appropriate for a school to opt for Synchronous Face-to-Face Real Time Online Education.

There has to be one common minimum level/standard of impartation of education for all schools. Further, the said school has to then ensure that the same is uniformly adopted and followed sans any discrimination.

Bench opined that

Synchronous Face-to- Face Real Time Online Education is neither a core nor a non-derogable facet of either Article 21A of the Constitution or the RTE Act, 2009.

High Court was of the view that it cannot be said that the education being provided by GNCTD schools does not satisfy the basic minimum required level of impartation of education in the present extraordinary scenario.

Private Unaided Schools

The tuition fee charged by the private unaided schools is governed and regulated by the DSE Act and the same does not include expenses on devices such as laptops, phones, high-speed internet at children‟s homes, etc.

Even though the cost of such gadget/digital equipment which enables access to online learning facilities is not a part of tuition fee, yet it has to be provided free of cost to the EWS / DG students in terms of Section 12(1)(c) read with Section 3(2) of the Act, 2009 as cost of such equipment would be covered under Rule 11 of the Central RTE Rules, 2010 as well as Rule 10 of the Delhi RTE Rules, 2011 and Section 3(2) of the RTE Act, 2009 inasmuch as absence of such equipment ‘will prevent the child from pursuing his or her elementary education‘ at par with other students in the same class in the present scenario.


To ensure a level playing field and to remedy this digital divide or digital gap or ̳digital apartheid‟ in addition to segregation, if the private unaided school has to bear any additional cost, it must bear it in the first instance with a right to claim reimbursement from the State in accordance with Section 12(2) of the RTE Act, 2009.

GNCTD must consider rewarding the schools that innovate.

Intra-class discrimination, especially inter-se 75% fee paying students viz-a-viz 25% EWS/DG students‟ upsets the ̳level playing field‘ and amounts to discrimination as well as creates a vertical division, digital divide or digital gap or „digital apartheid‘ in addition to segregation in a classroom which is violative of RTE Act, 2009 and Articles 14, 20 and 21 of the Constitution.

High Court directs constitution of a three-member committee within a week comprising Secretary, Education, Ministry of Education, Central Government or his nominee, Secretary Education, GNCTD or his nominee and a representative of respondent No.18 to frame a Standard Operating Procedure (SOP) for identification of standard gadget(s)/equipment(s) as well as the manufacturer/supplier and internet package so that EWS/DG students can access elementary education through digital online means.

Further, the private unaided schools shall file their claims for reimbursement under Section 12(2) to the GNCTD within eight weeks from the date of supply of such gadget(s)/equipment(s).

“To achieve education for all, Digital Education is a major component of the solution, though not a replacement for formal classroom schooling, provided digital- divide is erased from Indian Society.”

Creating a better and resilient elementary education system is increasingly important as a child’s starting point in life determines his/her future.

Concurring with the above view, Sanjeev Narula, J. stated that,

In the present pandemic situation, the shift towards online education has taken place literally overnight, and without much deliberation. One could argue that the unprecedented situation warranted such a drastic switch over. Therefore, I do not find any fault with the approach of the schools that have adopted digital technology for imparting education. However, it is necessary to issue a note of caution here so that the modes and methods adapted during this extraordinary time are not seen as the quintessential purpose of the Act.

The scheme of Article 21A and the RTE Act rests on a twofold premise: to prevent financial and psychological barriers from hindering access to primary education of children, and, non-discrimination in the imparting of education.

Reservation for EWS
Children of the socially and economically weaker sections are normally unable to secure an admission in private schools due to their unaffordable fees. The RTE Act seeks to address this gap via section 12(1)(c) which mandates all private schools to reserve 25 per cent of their seats for children belonging to economically weaker sections and disadvantaged group.


Imbalance in the imparting of education due to the non- availability of gadgets, internet connectivity and modes of access, has the potential of pushing the less-fortunate children outside the education system altogether. The digital enablement of EWS students, is thus, in my opinion, absolutely necessary.

The precious right guaranteed by the Constitution of India and the RTE Act has to be replicated in the online environment.

It is the responsibility of the schools and obligation of the State to assist EWS students to overcome all constraints that deprive them of meaningful education.

[Justice for All v. GNCTD, 2020 SCC OnLine Del 1217, decided on 18-09-2020]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while addressing the present petition issued directions with regard to the counselling process at the time of admission into Medical Postgraduate.

Petitioner a qualified doctor filed the present petition praying to preserve his admission at the Maulana Azad Medical college for MD (Pathology).

Petitioner belongs to the Economically Weaker Section and holds an EWS certificate from the State of Kerala. Petitioner had appeared for NEET Examination on 5-01-2020.

After the results, as a procedural step, the petitioner had to register himself for counselling for various quotas wherein he applied for the All India Quota, Central Inst. Quota and the Delhi University Quota.

Petitioner had obtained a seat for MD (Pathology) in MAMC and after the process for admission was completed in the evening he was informed by the college staff that he had been wrongfully allotted a seat under the Delhi University Quota and thus his admission could not be confirmed.

He did not get any clarity from the authorities on the said decision and hence filed the present petition.

Decision and Analysis

Delhi University Quota

Bench on perusal of the averments and facts of the present matter observed that there was no doubt about the fact that the petitioner ought to have been conscious of the fact that he would not have been eligible under the Delhi University Quota.

Prior to the registration for counseling, the eligibility criteria for each of the institutional quotas are already set.

Court observed that in order to avail of a PG seat in Delhi University Quota, the candidate must have passed his/her final MBBS from Delhi University.

Petitioner is clearly not qualified from the Delhi University Quotaand he was at best entitled to a seat in the All India Quota or in the State Quota for Kerala depending upon his rank.

Hence in view of the above-stated position, Court opines that the petitioner does not satisfy the eligibility for being considered in DU Quota and therefore the relief sought is not tenable.

Further, the Court added that the said confusion could have been avoided if there were proper checks at different levels of counselling.

The Court while being empathetic with the position in which the Petitioner currently finds himself, however, cannot direct confirmation of his admission in MAMC under the Delhi University Quota.

Bench directed the State of Kerala to allot any unfilled seat to the petitioner in a post-graduate medical course to enable him to take admission on or before 31-08-2020.

To avoid situations as arose in the present case, the Court passed the following directions:

  • At the time of registration for counselling there shall be a specific field in which candidates would be required to fill up with details of the college and the University from where they have completed their M.B.B.S. course.
  • Upon the said field being incorporated, the system should be designed in such a manner that only those quotas for which the candidates are eligible would be made available to the candidates.
  • After registration, prior to the allotment of seats, the data submitted by candidates shall be cross-verified with the data available with MCC so that wrong allotment is not made.

In view of the above, the present petition was disposed of. [Dr Machat Balakrishnan Menon v. Medical Council of India, 2020 SCC OnLine Del 1086, decided on 25-08-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Y.K. Sinha (Information Commissioner) addressed an RTI application filed seeking the following information:

  1. Names of students of Class 8th and 12th students who were given admission under EWS Quota for the session 2017-18. Provide information in detail.
  2. Names of Class 12th students who fall under EWS Quota in the final year.
  3. Provide the names of parents/Guardians of Class 8th and 12th students who were given admission under EWS Quota in the year 2017-18.
  4. Provide copies income certificates submitted by Class 8th and 12th students who were enrolled under EWS Quota in the year 2017-18?

Applicant on being dissatisfied with the response and aggrieved with the same approached the Commission with the instant second appeal.

Respondents stated that data about online registration of students is available since the year 2018-19, while the appellant seeks information pertaining to the academic year 2017- 18, hence the information could not be readily provided.

He further explained that before the implementation of the Right to Education Act, admissions to students from economically weaker sections were given under the freeship quota. The registration of students under EWS quota is not done at the stage of class 8 or 12, hence data sought by the appellant is not readily available.

Hence, in view of the above, the information sought by the appellant could not be readily provided.


Commission noted that the reply of the respondent that information about admissions under EWS[Economically Weaker Section] quota is not available in their office is totally unacceptable.

The respondent being the regulatory authority of all educational institutions cannot remain oblivious nor avoid questions relating to such crucial information which involves the implementation of the Right to Education Act.

Further, the commission added that information about names and particulars of students is personal information held by the school in a fiduciary capacity disclosure of which would invade the privacy of the concerned children.

RTE Act makes education a fundamental right of every child between the ages of 6 and 14 and specifies minimum norms in elementary schools, requiring all private schools(except the minority institutions) to reserve 25% of seats for children belonging to the economically weaker section of society.

Respondent was directed to provide information about the total number of students, if any, admitted under EWS quota in Class 8 and Class 12 for the academic year 2017-18.

Appeal was disposed of in the above terms.[Anita Chaudhary v. PIO, DDE-ZONE II, Dte, of Education, 2020 SCC OnLine CIC 731, decided on 09-06-2020]

Hot Off The PressNews

The Government has formulated the National Health Policy, 2017, which aims at the attainment of the highest possible level of good health and well-being, through a preventive and promotive health care orientation in all developmental policies, and universal access to good quality health care services without anyone having to face financial hardship as a consequence.

One of the key principles of the policy is to reduce inequity which would mean affirmative action to reach the poorest. It would mean minimizing disparity on account of gender, poverty, caste, disability, other forms of social exclusion and geographical barriers.

The policy also recognizes the special health needs of tribal and socially vulnerable population groups and recommends situation-specific measures in provisioning and delivery of services.

To encourage doctors working in remote and/or difficult and/or rural areas, Medical Council of India with the approval of Central Government has amended the Post Graduate Medical Education Regulations, 2000 to provide:-

  1. 50% of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served for at least three years in remote and/or difficult and/or rural areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult and/or rural areas; and
  2. Incentive at the rate of upto 10% of the marks obtained for each year in service in remote and/or difficult or rural areas upto the maximum of 30% of the marks obtained in the entrance test for admissions in Post Graduate Medical Courses.

Ministry of Health and Family Welfare

[Press Release dt. 11-02-2020]

[Source: PIB]

Legislation UpdatesNotifications

Following instructions are issued in consultation ‘with’ Ministry of Social Justice and Empowerment and Department of Legal Affairs regarding reservation for EWSs not covered under the reservation scheme for SCs/STs/OBCs in respect of direct recruitment in civil posts and services in’ the Government of India.

Quantum of Reservation

The persons belonging to EWSs who, are not covered under the scheme of reservation for SCs, STs and OBCs shall get 10% reservation in direct recruitment in civil posts and services in the Government of India.

Exemption from Reservation

“Scientific and Technical” posts which satisfy the conditions mentioned shall be exempted.

Criteria for Income & Assets

Persons who are not covered under the scheme of reservation for SCs, STs and OBCs and whose family has a gross annual income below Rs 8 lakh (Rupees eight lakh only) are to be identified as EWSs for benefit of reservation. Income shall also include income from all sources i.e. salary, agriculture, business, profession, etc. for the financial year prior to the year of application.

Also, persons whose family owns or possesses any of the following assets shall be excluded from being identified as EWS, irrespective of the family income:-

  1. 5 acres of agricultural land and above;
  2. Residential at of 1000 sq ft. and above;
  3. Residential plot of 100 sq. yards and above in notified municipalities;
  4. Residential, plot of 200 sq. yards and above in areas other than the notified municipalities.

Income and Asset Certificate Issuing Authority and Verification of Certificate

Benefit of reservation under EWS can be availed upon production of an Income and Asset Certificate issued by a Competent Authority. The Income and Asset Certificate issued ‘by any one of the following authorities in the prescribed format as given in Annexure-I shall only be accepted as proof of candidate’s claim as ‘belonging to EWS.

 Effecting Reservation – Maintenance of Rosters

Department of Personnel and Training had circulated Office Memorandum No.36012/2/96-Estt(Res) dated July 2, 1997, regarding the implementation of post based reservation roster. The general principles for making and operating post based reservation roster would be as per the principles laid down in the said Office Memorandum.

Adjustment Against Unreserved Vacancies

A person belonging to EWS cannot be denied the right to compete for appointment against an unreserved vacancy. Persons belonging to EWS who are selected on the basis of merit and not on account of reservation are not to be counted towards the quota meant for reservation.

Fortnightly/Annual Reports Regarding Representation of EWS

The Ministries/Departments shall send single consolidated fortnightly report including their attached/subordinate offices beginning from 15.2.2019 as per format at Annexure-VL -. From 01.01.2020, the Ministries/Departments shall upload data on the representation of EWSs in respect of posts/services under the Central Government on the URL i.e. www.rrcps.nic.inas on 1st January of every year. All Ministries/Departments have already been provided respective user code and password with guidelines for operating the URL.

Maintenance of Register of Complaints by the Government Establishment

Every Government establishment shall appoint a senior officer of the Department as the Grievance Redressal Officer.

Liaison Officer

Ministries/Departments/Attached and Subordinate Offices shall appoint Liaison Officer to monitor the implementation of reservation for EWSs.

The above scheme of the reservation will be effective in respect of all direct recruitment vacancies to be notified on or after 01.02.2019.

All the Ministries/Departments are requested to bring the above instructions to the notice of all appointing authorities, under their control. In case of any difficulty with regard to the implementation of the provisions of this OM, the concerned authorities may consult DOP&T through their administrative Ministry/Department.

Detailed Notification available here: Notification

Ministry of Personnel, Public Grievances & Pensions

[Office Memorandum dt. 31-01-2019]