The Supreme Court on Thursday put the ball in Centre's court to take a call on providing reservation in appointment for faculty posts in speciality and super speciality posts in medical colleges including the prestigious All India Institute of Medical Sciences.
"We clarify that it is for the Central Government to take a decision as to whether there should be reservation in speciality and super speciality posts," a five-judge bench headed by justice H L Dattu said.
The Centre had moved the apex court seeking review of a Constitution Bench judgement which had said it cannot take a view contrary to the one expressed in 1992 by a nine-judge bench in the Indra Sawhney case, also known as the Mandal case, that there could be no compromise with merit at super speciality stage.
As soon as Additional Solicitor General L Nageshwar Rao opened his arguments, the bench said the judgement makes it clear that the Centre has to follow the advice given in the Indra Sawhney case.
"Thats all and nothing more than that," the bench said and explained by saying that "we have not added a word other than what has been said in the Indra Sawhney judgement".
"It is open for the Central Government to take a decision whether there can be a reservation in speciality and super speciality posts," the bench, also comprising justices S S Nijjar, Ranjan Gogoi, M Y Eqbal and Vikramajit Sen said.
"At the best, we can add one sentence that it is for Central Government to take decision to amend the Constitution," it said leaving it to the Centre to take a decision on the controversial aspect of reservation.
"Even now the ball is in your court. You can say whether in speciality and super-speciality posts there can be reservation or not. Choice is yours to follow the advise made in the Indira Sawhney judgement," the bench said.
"If you want to give reservation, give it and if the matter comes to court then we will see," the bench said while disagreeing with the Centre's submission that "advice has taken the shape of direction in the judgement".
The apex court had in July last year said, "we cannot take a different view, even though it has been suggested that such an observation (of Mandal verdict) was not binding, being obiter in nature.
"We cannot ascribe to such a view since the very concept of reservation implies mediocrity and we will have to take note of the caution indicated in Indra Sawhney's case," the bench had said.
Referring to various judgements including that of the Mandal case, it had said, "We impress upon the Central andState Governments to take appropriate steps in accordance with the views expressed in Indra Sawhney's case and in this case, as also the other decisions referred to above, keeping in mind the provisions of Article 335 (claims of SC/ST to service and posts) of the Constitution."
The court had pronounced its verdict on the plea of the Faculty Association of AIIMS against a Delhi high court judgement.
The Association had contended that there cannot be any reservation for faculty posts to speciality and super speciality faculty courses in AIIMS.
AIIMS and the Centre had however taken a contrary stand and had pleaded that the reservation be given to SC/STs and Backward classes candidates in appointment to assistant professors and other senior posts in speciality and super speciality courses.