Dr. SANDEEP SADASHIVRAO KANSURKAR & ORS Vs. UNION OF INDIA & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Civil), 444 of 2015, Judgment Date: Oct 27, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.444 OF 2015
Dr. Sandeep s/o Sadashivrao Kansurkar ... Petitioner(s)
and Others
Versus
Union of India and Others ... Respondent(s)
J U D G M E N T
Dipak Misra, J.
The gravamen of grievance and the substratum of discontent of the
petitioners in this writ petition, preferred under Article 32 of the
Constitution of India, is that though the primary eligibility criteria for
appearing in the super-specialty entrance examination conducted in
different States in India for admission to D.M. (Doctorate of Medicine) and
M.Ch. (Masters of Chirurgiae) course regard being had to the purpose that
it endows the students an excellent opportunity to prosecute super
specialty subjects and to fulfill their aspirations for a bright and
vibrant career as well as to serve the society in the institutes recognized
by the Medical Council of India (MCI) and most of the States, namely,
Maharashtra, Uttar Pradesh, Gujarat, Rajasthan, Delhi, Karnataka, Kerala,
West Bengal, Bihar and Haryana, conduct the entrance examination for the
eligible candidates from All Over India and permit them to appear in the
entrance examination, yet the States like, Andhra Pradesh, Telangana and
Tamil Nadu, confine the eligibility only to the candidates having domicile
in their respective States. The fall out of the restriction is that
candidates having the domicile in the said States can appear in other
States’ entrance examination without any restriction and compete with other
candidates, and the said situation creates a clear disparity, and further a
state of inequality has been allowed to reign in the aforesaid three
States. The dissatisfaction is further accentuated by asserting that the
institutes with super-specialty courses are distributed all over India in a
heterogeneous manner and the States like, Punjab, Madhya Prades,
Chhatisgarh, Manipur, Arunachal Pradesh, Nagaland, Mizoram, Tripura,
Sikkim, Uttarakhand are not having any government institutes offering super-
specialty courses and the candidates from the said States have to depend on
the other States’ entrance examinations to seek a career in the discipline
they are interested, but for the restriction imposed by the States like,
Andhra Pradesh, Telangana and Tamil Nadu, they are deprived of the
opportunity to participate in the entrance examination and that invites the
frown of Articles 14 and 16 of the Constitution of India.
2. It is urged in the writ petition that the restraint imposed by the
aforesaid three States amounts to reservation in respect of the post-
graduate level; and as far as the super-specialty courses are concerned,
the question of reservation based on residence or institutional preference
is totally impermissible, for merit cannot be compromised by making
reservation on the consideration, like residential requirement, as that
would be absolutely against the national interest and plays foul of
equality clause engrafted in the Constitution. It is put forth that the
States of Andhra Pradesh and Telangana have drawn support from the
Presidential order, namely, Andhra Pradesh Educational Institutions
(Regulations and Admissions) order 1974 (for short “the Presidential
Order”) issued under Article 371-D of the Constitution and G.O.P. No.646
dated 10th July, 1979 issued by the State of Andhra Pradesh (for short,
‘the 1979 circular’), which are really not applicable to the super-
specialty courses, for the legal system which prevails throughout the
territory of India is a singular and indivisible one and Article 14 lays a
clear postulate for conferment of equal opportunity throughout the nation.
It is asseverated that the reservations made by the States of Andhra
Pradesh, Telangana and Tamil Nadu, ushers in a state of inequality by
putting the residents of the said States in one class solely on the
foundation of domicile and others in a different category altogether
without any rationale and, therefore, the entire action smacks of
arbitrariness and unreasonableness.
3. On the basis of aforesaid assertions prayers have been made to issue
a command to the Respondent Nos.1 and 6 i.e. the Secretary, Ministry of
Health and Family Welfare, Union of India and the Medical Council of India,
respectively, to allow the petitioners to appear in the entrance
examination conducted by the respondent Nos.3 to 5 i.e. the States of Tamil
Nadu, Andhra Pradesh and Telangana for the year 2015-2016 for the super-
specialty courses and further to issue a writ of mandamus directing the
respondent Nos.1 and 6, as well as the respondent No.2, the Director
General of Health Services of the Union of India, to conduct a common
entrance test for admission to super-specialty courses, like DM/M.Ch. at
All India Level, and for certain other ancillary reliefs.
4. A counter affidavit has been filed by the State of Andhra Pradesh
contending, inter alia, that the claim of the petitioners to appear in the
entrance test conducted by the State of Andhra Pradesh for admission into
the medical super-specialty courses is contrary to the scheme of the
Presidential Order and the 1979 circular. It is set forth in the counter
affidavit that the two categories of institutions, namely, State wide
educational Institutions and Non-State wide educational Institutions (Local
Institutions) existed in the State of undivided Andhra Pradesh as per the
Presidential Order and further clarified by 1979 circular all professional
under-graduate and post-graduate courses are covered under the aforesaid
two categories of institutions. It is contended that the erstwhile State
of Andhra Pradesh was divided into three local areas that came under Andhra
University, Osmania University and Sri Venkateswara University for the
purpose of admission into the educational institutions. Subsequent to the
bifurcation of the State, the Andhra University area and Sri Venkateswara
University area have come under the territory of State of Andhra Pradesh
and the Osmania University area has come under the State of Telangana and
85% of the seats are reserved for the local candidates in each University
area and the said system is to remain in vogue for a period of ten years.
A reference has been made to paragraph 3 of the Presidential Order,
indicating the division of the local areas. There is also reference to
paragraphs 5 and 7 of the Presidential Order, which indicate that the
reservations are available for the local candidates in the University areas
in Non-State-wide educational institutions and State-wide educational
institutions. Placing reliance on the same it is asserted that admissions
upto 85% of Non-State-wide seats shall be reserved in favour of the local
areas as per procedure specified in the 1979 circular as amended from time
to time and remaining 15% seats are to be treated as unreserved seats for
the Non-State candidates who have qualified in the Entrance Test.
Elaborating the same, it is contended that admission upto 85% State-wide
seats shall be reserved in favour of Andhra and Nagarjuna University,
Osmania and Kakatiya University and Sri Venkateswara University in the
ratio 42:36:22 respectively as per the procedure specified as per the 1979
circular. It is highlighted that paragraph 4 of the Presidential Order,
defines the local candidate in reference to a local area and how the
remaining 15% unreserved seats have to be dealt with. In essence, it is
the stand of the State of Andhra Pradesh that according to Six Point
Formula of the Constitution of India, as amended by 32nd Amendment,
inserting Article 371-D, special provisions have been made in respect of
the State of Andhra Pradesh which provide equal opportunities in different
parts of the State in the matter of public employment and education. To
bolster the stand that there is no provision for admission to the
candidates of other States except the candidates belonging to the State of
Andhra Pradesh, emphasis is laid on the schematic context of the
Presidential Order and the 1979 circular and further it is reiterated that
in view of the special status conferred on the State by the constitutional
norms of equality which has been assiduously attempted to build is sans
substance as per the Presidential Order read with 1979 circular.
5. The State of Telangana has also filed a counter affidavit wherein it
has been stressed that the Presidential Order, as well as the 1979 circular
are protective in nature and a distinction has been drawn between the local
candidates and reservation for local candidates; and the candidates who are
eligible to apply for admission in respect of the remaining 15% of the
unreserved seats. It is urged that the 15% of unreserved seats as per the
Presidential Order and the circular issued by the State Government in 1979,
do not include the candidates from other States. The other grounds which
have been put forth in the counter affidavit need not be stated because
they are in a way repetition of the stand taken by the State of Andhra
Pradesh.
6. The State of Tamil Nadu has also filed a counter affidavit, but we
shall not refer to the same in praesenti. At the very outset, we would
like to make it absolutely clear that when we reserved the matter, we had
mentioned in our order that the controversy relating to the State of Tamil
Nadu shall be taken up after the judgment is pronounced in respect of the
States of Andhra Pradesh and Telangana.
7. We have heard Ms. Indu Malhotra and Mr. B.H. Marlapalle, learned
senior counsel for the petitioners, Mr. Mukul Rohatgi, learned Attorney
General for Union of India, Mr. H.P. Raval, learned senior counsel, along
with Mr. S. Udaya Kumar Sagar, learned counsel for the State of Telangana,
Mr. Guntur Prabhakar, learned counsel for the State of Andhra Pradesh and
Mr. Gaurav Sharma, learned counsel for the Medical Council of India.
8. It is submitted by Ms. Indu Malhotra, learned senior counsel
appearing for the petitioners that though Article 371-D of the Constitution
of India makes special provisions for the State, yet that would not extend
to cover reservations as regards the super-specialty courses where merit
alone matters as has been held by the Constitution Bench in Dr. Preeti
Srivastava and Another vs. State of M.P. and Others[1]. It is urged by her
that equality before law and equal protection of the law serve the purpose
of excellence and if merit is compromised on the bedrock of geographical
boundary, the basic normative principle of equality would be marred.
Learned senior counsel would further contend that the residential
requirement or institutional preference should not be allowed to have any
room in this category of admissions in view of the pronouncements in Nikhil
Himthani vs. State of Uttarakhand[2] and Vishal Goel vs. State of
Karnataka[3]. It is astutely canvassed by her that the principle
pertaining to domicile was laid down more than a decade back in Saurabh
Chaudri vs. Union of India[4], but both the States, namely, Andhra Pradesh
and Telangana have flagrantly violated the said principle and given an
indecent burial to the guidelines issued by the Medical Council of India.
9. Mr. B.H. Marlapalle, learned senior counsel appearing for the
impleaded petitioners would submit that Rule 9 of the Medical Council of
India Postgraduate Medical Education Regulations, 2000, as amended on 21st
December, 2010, deals with the selection of post-graduate students by all
the medical educational institutions all over the country and these
Regulations are indubitably binding on all the universities in both the
States and they cannot be allowed to violate the same. It is his further
submission that the Presidential Order, issued under Article 371-D of the
Constitution is primarily aimed at removing disparities between the three
different regions of Andhra Pradesh, namely, Andhra, Rayalaseema and
Telangana, as prevailing at the time of its formation of the State of
Andhra Pradesh consequent upon the States Reorganization Act, 1956, in
respect of employment and education and the term “education” as finds place
in Clause 2(1)(a) of the Presidential Order, defines the term “available
seats”, which means number of seats in a course for admission at any time
after excluding those reserved for candidates from outside the State.
Learned senior counsel has referred to Clause 3 of the Presidential Order
and highlighted that whatever manner the interpretation is placed on those
clauses, 15% has to be demarcated as non-local quota or available for the
candidates who are not residents of the State. He has emphatically argued
that clause 2(1)(a) of the 1979 circular, is only a clarifactory one and
hence, it cannot convey that the candidates who have passed the examination
from any State other than Andhra Pradesh/Telangana, do not fall in the
category of candidates from outside the State. That apart, it is urged
that in the name of clarification it cannot place an erroneous
interpretation on the Presidential Order, for that will make the said Order
unworkable, and also would cause violence to the language employed in the
Presidential Order.
10. Mr. Marlapalle has referred to paragraph 11 of the 1979 circular to
buttress his stand that the procedure of implementation of reservation is
clear to the extent that 15% reservation will be meant for non-local
candidates. He has given an example by stating that if there are 12 seats
available for a particular super-specialty course in a university, the
available seats will be arrived at by deducting the national quota, that
may be 2 seats, and from the remaining 10 available seats, 85% will be
earmarked for the local candidates and remaining 15% for those who are
listed in Clause 2 of the Presidential Order would go to non-local quota.
He has placed reliance on the prospectus issued for the academic year 2015-
2016 by Dr. N.T.R. University of Health Sciences, Andhra Pradesh,
especially on Clause 3.8 to 3.8.6. Learned senior counsel has also drawn
inspiration from Rule 2(2) of the Rules for Admission to Post Graduate
Courses in the Medical Colleges in the State of Andhra Pradesh, 1983.
Learned senior counsel has criticized that the prospectus of the academic
year 2015-2016 of the universities, namely, Dr. N.T.R. University of Health
Sciences, Andhra Pradesh and Nizam’s Institute of Medical Sciences, which
do not provide for All India quota and only provide for the “available
seats” and, in that backdrop it is suggested that the Medical Council of
India should issue appropriate directions under the approval of the
Government of India to earmark national quota outside the State of Andhra
Pradesh and Telangana in the super-specialty post-graduate medical courses;
and for the current academic year, the Medical Council of India should be
directed to consider to create additional seats for national quota in
respect of these two States so that the Presidential Order is properly
implemented.
11. Mr. Marlapalle has submitted that to understand the controversy in the
proper perspective of the Presidential Order and how the States have worked
it out, the examination of certain Acts, Rules and Regulations, namely. (i)
A.P. Educational Institutions (Regulation of Admission and Prohibition of
Capitation Fee) Act, 1983; (ii) Rules for Admission to Post Graduate
Courses in the Medical Colleges in the State of Andhra Pradesh, 1983; (iii)
The Andhra Pradesh Regulation of Admission to Super Specialties in the
Medical Colleges Rules, 1983; (iv) Andhra Pradesh Medical Colleges
(Admission into Post Graduate Medical Courses), Rules 1997, as modified
from time to time and (v) Medical Council of India Postgraduate Medical
Education Regulations, 2000, as amended from time to time are necessary .
We must immediately state that their relevance shall depend upon our
eventual analysis of the constitutional provision, the Presidential Order
and the 1979 circular issued by the State of Andhra Pradesh.
12. Mr. Mukul Rohatgi, learned Attorney General appearing for the Union
of India, would contend that Article 371-D of the Constitution enables the
President of India to issue certain category of orders and in exercise of
that power the Presidential Order had been issued in relation to the State
of Andhra Pradesh which pertains to the field of education and that covers
the super-specialty courses; and further the 1979 circular issued by the
State Government is not an amendment to the Presidential Order, but only
postulates the manner and method of implementation. It is canvassed by him
that there can be no cavil that merit is the rule in case of super-
specialty courses and there cannot be any reservation, as has been held in
Preeti Srivastava (supra) and subsequent judgments, but this Court has
consistently held that as far as the State of Andhra Pradesh is concerned,
the super-specialty courses would fall beyond the said concept. It is
propounded by Mr. Rohatgi that the submission that 15% would go to the
students who have no domicile in the State, should go to candidates of
other States, is absolutely incorrect in view of the procedure for
implementation of the Presidential Order, which has been elaborately
determined by the State of Andhra Pradesh in 1979. He has commended us to
the decisions in Dr. Pradeep Jain and Others vs. Union of India and
Others[5], Reita Nirankari vs. Union of India[6], Dr. Dinesh Kumar vs.
Motilal Nehru Medical College[7], C. Surekha vs. Union of India[8] and Dr.
Fazal Ghafoor vs. Union of India and Others[9]. Needless to say, the
learned Attorney General has submitted that the principles stated in the
said authorities shall apply on all fours to the State of Telangana.
13. Mr. Harin P. Raval, learned senior counsel, along with Mr. S. Udaya
Kumar Sagar, learned counsel, appearing for the State of Telangana have
adopted the submissions advanced by the learned Attorney General.
14. To appreciate the controversy raised in this writ petition it is
necessary to reflect upon the language employed in Article 371-D of the
Constitution and the interpretation placed by this Court on the said
provision. That apart, it would also be essential to understand the 1979
circular issued by the State of Andhra Pradesh in the year 1979 and how
this Court has perceived the ambit and scope of the same and further also
consider the concept of non-applicability of reservation in respect of the
super speciality courses. Having stated so, we may reproduce Clauses 1 and
2 of Article 371-D of the Constitution, which are relevant for the present
purpose, They read as follows:-
“371-D. Special provisions with respect to the State of Andhra Pradesh or
the State of Telangana.- (1) The President may by order made with respect
to the State of Andhra Pradesh or the State of Telangana, provide, having
regard to the requirement of each State, for equitable opportunities and
facilities for the people belonging to different parts of such State, in
the matter of public employment and in the matter of education, and
different provisions may be made for various parts of the States.
An order made under clause (1) may, in particular,-
require the State Government to organise any class or classes of posts in a
civil service of, or any class or classes of civil posts under, the State
into different local cadres for different parts of the State and allot in
accordance with such principles and procedure as may be specified in the
order the persons holding such posts to the local cadres so organized;
specify any part or parts of the State which shall be regarded as the local
area –
for direct recruitment to posts in any local cadre (whether organized in
pursuance of an order under this article or constituted otherwise) under
the State Government;
for direct recruitment to posts in any cadre under any local authority
within the State; and
for the purposes of admission to any University within the State or to any
other educational institution which is subject to the control of the State
Government;
specify the extent to which, the manner in which and the conditions subject
to which, preference or reservation shall be given or made –
in the matter of direct recruitment to posts in any such cadre referred to
in sub-clause (b) as may be specified in this behalf in the order;
in the matter of admission to any such University or other educational
institution referred to in sub-clause (b) as may be specified in this
behalf in the order,
to or in favour of candidates who have resided or studied for any period
specified in the order in the local area in respect of such cadre,
University or other educational institution, as the case may be.”
15. At this stage we think it appropriate to refer to the relevant
clauses of the Presidential Order. The pertinent clauses, we are inclined
to think, are:-
“(2) It extends to the whole of the State of Andhra Pradesh.
(3) It shall come into force on the 1st day of July, 1974.
2. Interpretation:- (1) In this Order, unless the context otherwise
requires:-
(a) “available seats” in relation to any course of study, means the number
of seats provided in that course for admission at any time after excluding
those reserved for candidates from outside the State.
(b) “Local area”, in respect of any University or other educational
institution, means the local area specified in paragraph 3 of this Order
for the purposes of admission to such University or other educational
institution.
(c) “Local candidate”, in relation to any local area, means a candidate who
qualifies under paragraph 4 of this Order as a local candidate in relation
to such local area:
(d) “State Government” means the Government of Andhra Pradesh.
(e) “State-wide educational institution” means an educational institution
or a department of an educational institution specified in the Schedule of
this Order.
(f) “State-wide University” means the Andhra Pradesh Agricultural
University constituted under the Andhra Pradesh Agricultural University
Act, 1963 (Andhra Pradesh Act 24 of 1963), or the Jawaharlal Nehru
Technological University constituted under the Jawaharlal Nehru
Technological University Act, 1972 (Andhra Pradesh Act 16 of 1972).
(2) Any reference to any District in this Order shall be construed as a
reference to the area comprised in that District on the 1st day of July,
1974.
(3) The General clauses Act, 1897(10 of 1897) applies for the
interpretation of this order as it applies for the interpretation of a
Central Act.
3. Local area:- (1) The part of the State comprising the district of
Srikakulam, Visakhapatnam, West Godavari, East Godavari, Krishna, Guntur
and Prakasam shall be regarded as the local area for the purposes of
admission to the Andhra University, (the Nagarjuna University) and to any
other educational institution (other than a State-wide University or State-
wide educational institution) which is subject to the control of the State
Government and is situated in that part.
(2) The part of the State comprising the districts of Adilabad, Hyderabad,
Karimnagar, Khammam, Mahaboobnagar, Medak, Nalgonda, Nizamabad and Warangal
shall be regarded as the local area for the purposes of admission to the
Osmania University, (the Kakatiya University) and to any other educational
institution(other than a State-wide University or State-wide Educational
institution) which is subject to the control of the State Government and is
situated in that part.
(3) The part of the State comprising the districts of Anantapur, cuddapah,
Kurnool, Chitoor and Nellore shall be regarded as the local area for the
purposes of admission to Sri Venkateswara University and to any other
educational institution (other than a State-wide University or State-wide
educational institution) which is subject to the control of the State
Government and is situated in that part.
4. Local candidates:- (1) A Candidate for admission to any course of
study shall be regarded as a local candidate in relation to a local area
(a) if he has studied in an educational institution or educational
institutions in such local area for a period of not less than four
consecutive academic years ending with the academic year in which he
appeared or, as the case may be, first appeared in the relevant qualifying
examination; or.
(b) Where during the whole of any part of the four consecutive academic
years ending with the academic year in which he appeared or, as the case
may be, first appeared for the relevant qualifying examination, he has not
studied in any educational institution. If he has resided in that local
area for a period of not less than four years immediately preceding the
date of commencement of the relevant qualifying examination in which he
appeared or as the case may be first appeared.
(2) A candidate for admission to any course of study who is not regarded as
a local candidate under sub-paragraph (1) in relation to any local area
shall.
(a) if he has studied in educational institutions in the State for a period
of not less than seven consecutive academic years ending with the academic
year in which he appeared or, as the case may be, first appeared for the
relevant qualifying examination, be regarded as a local candidate in
relation to.
(i) such local are where he has studied for the maximum period out of the
said period of seven years; or.
(ii) Where the periods of his study in two or more local areas are equal,
such local area where he has studied last in such equal periods; or.
(b) if during the whole or any part of the seven consecutive academic years
ending with the academic year in which he appeared or, as the case may be,
first appeared for the relevant qualifying examination, he has not studied
in the educational institution in any local area, but has resided in the
State during the whole of the said period of seven years be regarded as a
local candidate in relation to.
(i) such local area where he has resided for the maximum period out of the
said period of seven years, or.
(ii) Where the period of “his residence in two or more local areas are
equal, such local area where he has resided last in such equal periods”.]
Explanation – For the purpose of this paragraph.
(i) “Educational institution” means a University or any educational
institution recognized by the State Government a University or other
competent authority;
(ii) “relevant qualifying examination” in relation to admission to any
course of study, means the examination, a pass in which is the minimum
educational qualification for admission to such course of study;
(iii) in reckoning the consecutive academic years during which a candidate
has studied,-
(a) any period of interruption of his study by reason of his failure to
pass any examination; and
(b) any period of his study in a State-wide University or a State wide
educational institution, shall be disregarded.
(iv) the question whether any candidate for admission to any course of
study has resided in any local area shall be determined with reference to
the places where the candidate actually resided and not with reference to
the residence of his parent or other guardian.]
5. Reservation in non-State-wide Universities and educational Institutions:-
(1) Admissions to eighty-five percent of the available seats in every
course of study provided by the *(Andhra University, the Nagarjuna
University, the Osmania University.** the Kakatiya University or Sri
Venkateswara University) or by any other educational institution (other
than a State-wide University or a Statewide educational institution) which
is subject to the control of the State Government shall be reserved in
favour of the local candidates in relation to the local area in respect of
such University or other educational institution.
(2) While determining under sub-paragraph (1) the number of seats to be
reserved in favour of local candidates any fraction of a seat shall be
counted as one:
Provided that there shall be at least one unreserved seat.
6. Reservation in Statewide Universities and State-wide educational
institutions (1) Admissions to eighty five percent of the available seats
in every course of study provided by a State-wide University or a State-
wide educational institution shall be reserved in favour of and allocated
among the local candidates I relation, to the *(Local areas specified in
sub-paragraph(1), sub-paragraph(2) and sub-paragraph(3) of paragraph 3, in
the ratio of 42:36:22 respectively:
Provided that this sub-paragraph shall not apply in relation to any course
of study in which the total number of available seats does not exceed
three.
(2) While determining under sub-paragraph(1) the number of seats to be
reserved in favour of the local candidates, any fraction of a seat shall be
counted as one.
Provided that there shall be at least one unreserved seat.
(3) While allocating under sub-paragraph(1) the reserved seats among the
local candidates in relation to the different local areas, fractions of a
seat shall be adjusted by counting the greatest fraction as one and, if
necessary, also the greater of the remaining fractions as another; and,
where the fraction to be so counted cannot be selected by reason of the
fractions being equal, the selection shall be by lot.
Provided that there shall be at least one seat allocated for the local
candidate in respect of each local area.
7. Filling of reserved vacant seats.- If a local candidate in respect of a
local area is not available to fill any seat reserved or allocated in
favour of local candidate in respect of that local area, such seat shall be
filled as if it had not been reserved.
8. Power to authorise issue of directions. – (1) the president may, by
order, require the State Government to issue such directions as may be
necessary or expedient for the purpose of giving effect to this Order to
any University or to any other educational institution subject to the
control of the State Government; and the University or other educational
institution shall comply with such directions.
(2) The State Government may, for the purpose of issuing any directions
under sub-paragraph (1) or for satisfying itself that any directions issued
under that sub-paragraph have been complied with require, by order in
writing, any University or any other educational institution subject to the
Control of the State Government to furnish them such information, report or
particulars as may be specified in the order; and the University or other
educational institution shall comply with such order.”
16. The State Government issued the circular in 1979. The relevant
paragraphs of the circular deserve to be reproduced. They read as follows:-
“2. The Andhra Pradesh Educational Institutions (Regulation of Admissions)
Order, 1974 provides for reservation of seats in favour of local candidates
in courses of study provided by the Universities and other educational
institutions subject to the Control of the State Government. Paragraph 9
of the order lays down that the provisions of that order shall have effect
notwithstanding anything contained in any statute ordinance, rule,
regulation or other order(whether made before or after the commencement of
the Order) in respect of admissions to any University or any other
educational institutions subject to the control of the State Government.
Paragraph 10 of the said Order, however, declares that nothing in the Order
shall affect the operation of any provisions made by the State Government
or other competent authority (whether before or after the commencement of
the Order) in respect of reservations in the matter of admission to any
University or other education Institution in favor or women, socially and
educationally backward classes of citizens, the Scheduled Castes and the
Scheduled Tribes in so far as such provisions are not inconsistent with the
Order.
3. After the coming into force of the above Presidential Order, with effect
from 1-7-1974, admissions to the educational institutions in the entire
State are to be made in the light of the provisions of the said order.
According to Paragraph 4 of the Order a candidate for admission to any
course of study shall be regarded as a local candidate in relation to the
local area, -
(a) If he has studied in an educational institution or educational
institutions in such local area for a period of not less than four
consecutive academic years ending with the academic year in which he
appeared or, as the case may be, first appeared in relevant qualifying
examination; or
(b) where during the whole or any part of the four consecutive academic
years ending with the academic year in which he appeared or, as the case
may be, first appeared for the relevant qualifying examination, he has not
studied in any educational institution, if he has resided in that local
area for a period of not less than four years immediately preceding the
date of commencement of the relevant qualifying examination in which he
appeared, or, as the case may be, first appeared.
4. It must be noted that para 4(a) as extracted above covers the cases of
those candidates who studied in an educational institution or educational
institutions for a period of not less than four consecutive academic years
ending with the academic year in which he appeared or, as the case may be,
first appeared in the relevant qualifying examination, while para 4 (b)
applies to the case of other candidates. For purposes of para 4(a)
educational institution has been defined as a University or any educational
institution recognized by the State Government, a University or other
competent authority. The eligibility of a candidate who has studied during
any part of the four years period in an unrecognized institution will have
to be dealt with the under para 4(b). While considering the eligibility of
a candidate to be regarded as a local candidate, under paragraph 4(a) of
the Order by virtue of four consecutive years of Study in a local area, it
should be noted that in reckoning the consecutive academic years of study,
any interruption in the period of his study ,by reason of his failure to
pass any examination shall be disregarded. For instance, a candidate who
has studied in the IXth and Xth Classes and the Junior and Senior
Intermediate Classes in institutions of the sale local area with a break of
one year after the Xth class on account of failure to pass the Xth Class
examination at the first attempt, shall be regarded as a local candidate in
relation to that local area for admission to a degree course in any
institution in that area.
5. The above definition of the local candidate (as it stood until it was
amended with effect from 25-11-1976) had given rise to certain situations
wherein some of the candidates belonging to the State of Andhra Pradesh who
have studied or resided throughout within the State came to be regarded as
non-local candidates in all the local areas within the State. In order to
avoid such a situation, the Government of India have since issued the
Andhra Pradesh Educational Institutions (Regulation of Admission) Second
Amendment Order, 1976 amplifying the said definition in paragraph 4 of the
Order
6. The Andhra Pradesh Educational Institutions (Regulation of Admissions)
Second Amendment Order, 1976 inserts a new sub-paragraph in the said 1974
Order-viz., sub-paragraph (2) to Paragraph 4 thereby making provision for
considering the claims of persons, who under the old definition would have
become non-local in relation to all local areas in the State. According to
sub-para (2) (a) of Para 4, after amendment, if such a candidate has
studied in educational institutions in the State for a period of not less
than seven consecutive academic years ending with the academic year in
which he appeared on, as the case may be, first appeared for the relevant
qualifying examination, he shall be regarded as a local candidate in
relation to that local area where he had studied for the longest period out
of the said period of seven years. In the event of the periods of study in
two or more local areas being equal he shall be regarded as local candidate
in relation to that local area where he studied during the last of the said
equal periods. Clause (b) to sub-para (2) applies to a candidate who,
during the whole or any part of the seven consecutive academic years ending
with the academic year in which he appeared or as the case may be, first
appeared for the relevant qualifying examination has not studied in
educational institutions in any local area, but has resided in the State
during the whole of the said seven years, the candidate shall be regarded
as a local candidate in relation to that local area where he has resided
for the longest period out of the said seven year period. This residence
test will be applies to candidates in whose cases there is a gap in study,
occasioned otherwise than by reason of failure to pass in an examination,
in the prescribed full term of seven years immediately preceding the
relevant qualifying examination. It has also been provided that where the
periods of residence in two or more local areas are equal, such a candidate
shall be regarded as a local candidate in relation to the local area where
he resided last in such equal periods. The application of the liberalized
definitions made through the Second Amendment Order are illustrated by the
examples given in the Annexure – I.
xxxxx xxxxx
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.444 OF 2015
Dr. Sandeep s/o Sadashivrao Kansurkar ... Petitioner(s)
and Others
Versus
Union of India and Others ... Respondent(s)
J U D G M E N T
Dipak Misra, J.
The gravamen of grievance and the substratum of discontent of the
petitioners in this writ petition, preferred under Article 32 of the
Constitution of India, is that though the primary eligibility criteria for
appearing in the super-specialty entrance examination conducted in
different States in India for admission to D.M. (Doctorate of Medicine) and
M.Ch. (Masters of Chirurgiae) course regard being had to the purpose that
it endows the students an excellent opportunity to prosecute super
specialty subjects and to fulfill their aspirations for a bright and
vibrant career as well as to serve the society in the institutes recognized
by the Medical Council of India (MCI) and most of the States, namely,
Maharashtra, Uttar Pradesh, Gujarat, Rajasthan, Delhi, Karnataka, Kerala,
West Bengal, Bihar and Haryana, conduct the entrance examination for the
eligible candidates from All Over India and permit them to appear in the
entrance examination, yet the States like, Andhra Pradesh, Telangana and
Tamil Nadu, confine the eligibility only to the candidates having domicile
in their respective States. The fall out of the restriction is that
candidates having the domicile in the said States can appear in other
States’ entrance examination without any restriction and compete with other
candidates, and the said situation creates a clear disparity, and further a
state of inequality has been allowed to reign in the aforesaid three
States. The dissatisfaction is further accentuated by asserting that the
institutes with super-specialty courses are distributed all over India in a
heterogeneous manner and the States like, Punjab, Madhya Prades,
Chhatisgarh, Manipur, Arunachal Pradesh, Nagaland, Mizoram, Tripura,
Sikkim, Uttarakhand are not having any government institutes offering super-
specialty courses and the candidates from the said States have to depend on
the other States’ entrance examinations to seek a career in the discipline
they are interested, but for the restriction imposed by the States like,
Andhra Pradesh, Telangana and Tamil Nadu, they are deprived of the
opportunity to participate in the entrance examination and that invites the
frown of Articles 14 and 16 of the Constitution of India.
2. It is urged in the writ petition that the restraint imposed by the
aforesaid three States amounts to reservation in respect of the post-
graduate level; and as far as the super-specialty courses are concerned,
the question of reservation based on residence or institutional preference
is totally impermissible, for merit cannot be compromised by making
reservation on the consideration, like residential requirement, as that
would be absolutely against the national interest and plays foul of
equality clause engrafted in the Constitution. It is put forth that the
States of Andhra Pradesh and Telangana have drawn support from the
Presidential order, namely, Andhra Pradesh Educational Institutions
(Regulations and Admissions) order 1974 (for short “the Presidential
Order”) issued under Article 371-D of the Constitution and G.O.P. No.646
dated 10th July, 1979 issued by the State of Andhra Pradesh (for short,
‘the 1979 circular’), which are really not applicable to the super-
specialty courses, for the legal system which prevails throughout the
territory of India is a singular and indivisible one and Article 14 lays a
clear postulate for conferment of equal opportunity throughout the nation.
It is asseverated that the reservations made by the States of Andhra
Pradesh, Telangana and Tamil Nadu, ushers in a state of inequality by
putting the residents of the said States in one class solely on the
foundation of domicile and others in a different category altogether
without any rationale and, therefore, the entire action smacks of
arbitrariness and unreasonableness.
3. On the basis of aforesaid assertions prayers have been made to issue
a command to the Respondent Nos.1 and 6 i.e. the Secretary, Ministry of
Health and Family Welfare, Union of India and the Medical Council of India,
respectively, to allow the petitioners to appear in the entrance
examination conducted by the respondent Nos.3 to 5 i.e. the States of Tamil
Nadu, Andhra Pradesh and Telangana for the year 2015-2016 for the super-
specialty courses and further to issue a writ of mandamus directing the
respondent Nos.1 and 6, as well as the respondent No.2, the Director
General of Health Services of the Union of India, to conduct a common
entrance test for admission to super-specialty courses, like DM/M.Ch. at
All India Level, and for certain other ancillary reliefs.
4. A counter affidavit has been filed by the State of Andhra Pradesh
contending, inter alia, that the claim of the petitioners to appear in the
entrance test conducted by the State of Andhra Pradesh for admission into
the medical super-specialty courses is contrary to the scheme of the
Presidential Order and the 1979 circular. It is set forth in the counter
affidavit that the two categories of institutions, namely, State wide
educational Institutions and Non-State wide educational Institutions (Local
Institutions) existed in the State of undivided Andhra Pradesh as per the
Presidential Order and further clarified by 1979 circular all professional
under-graduate and post-graduate courses are covered under the aforesaid
two categories of institutions. It is contended that the erstwhile State
of Andhra Pradesh was divided into three local areas that came under Andhra
University, Osmania University and Sri Venkateswara University for the
purpose of admission into the educational institutions. Subsequent to the
bifurcation of the State, the Andhra University area and Sri Venkateswara
University area have come under the territory of State of Andhra Pradesh
and the Osmania University area has come under the State of Telangana and
85% of the seats are reserved for the local candidates in each University
area and the said system is to remain in vogue for a period of ten years.
A reference has been made to paragraph 3 of the Presidential Order,
indicating the division of the local areas. There is also reference to
paragraphs 5 and 7 of the Presidential Order, which indicate that the
reservations are available for the local candidates in the University areas
in Non-State-wide educational institutions and State-wide educational
institutions. Placing reliance on the same it is asserted that admissions
upto 85% of Non-State-wide seats shall be reserved in favour of the local
areas as per procedure specified in the 1979 circular as amended from time
to time and remaining 15% seats are to be treated as unreserved seats for
the Non-State candidates who have qualified in the Entrance Test.
Elaborating the same, it is contended that admission upto 85% State-wide
seats shall be reserved in favour of Andhra and Nagarjuna University,
Osmania and Kakatiya University and Sri Venkateswara University in the
ratio 42:36:22 respectively as per the procedure specified as per the 1979
circular. It is highlighted that paragraph 4 of the Presidential Order,
defines the local candidate in reference to a local area and how the
remaining 15% unreserved seats have to be dealt with. In essence, it is
the stand of the State of Andhra Pradesh that according to Six Point
Formula of the Constitution of India, as amended by 32nd Amendment,
inserting Article 371-D, special provisions have been made in respect of
the State of Andhra Pradesh which provide equal opportunities in different
parts of the State in the matter of public employment and education. To
bolster the stand that there is no provision for admission to the
candidates of other States except the candidates belonging to the State of
Andhra Pradesh, emphasis is laid on the schematic context of the
Presidential Order and the 1979 circular and further it is reiterated that
in view of the special status conferred on the State by the constitutional
norms of equality which has been assiduously attempted to build is sans
substance as per the Presidential Order read with 1979 circular.
5. The State of Telangana has also filed a counter affidavit wherein it
has been stressed that the Presidential Order, as well as the 1979 circular
are protective in nature and a distinction has been drawn between the local
candidates and reservation for local candidates; and the candidates who are
eligible to apply for admission in respect of the remaining 15% of the
unreserved seats. It is urged that the 15% of unreserved seats as per the
Presidential Order and the circular issued by the State Government in 1979,
do not include the candidates from other States. The other grounds which
have been put forth in the counter affidavit need not be stated because
they are in a way repetition of the stand taken by the State of Andhra
Pradesh.
6. The State of Tamil Nadu has also filed a counter affidavit, but we
shall not refer to the same in praesenti. At the very outset, we would
like to make it absolutely clear that when we reserved the matter, we had
mentioned in our order that the controversy relating to the State of Tamil
Nadu shall be taken up after the judgment is pronounced in respect of the
States of Andhra Pradesh and Telangana.
7. We have heard Ms. Indu Malhotra and Mr. B.H. Marlapalle, learned
senior counsel for the petitioners, Mr. Mukul Rohatgi, learned Attorney
General for Union of India, Mr. H.P. Raval, learned senior counsel, along
with Mr. S. Udaya Kumar Sagar, learned counsel for the State of Telangana,
Mr. Guntur Prabhakar, learned counsel for the State of Andhra Pradesh and
Mr. Gaurav Sharma, learned counsel for the Medical Council of India.
8. It is submitted by Ms. Indu Malhotra, learned senior counsel
appearing for the petitioners that though Article 371-D of the Constitution
of India makes special provisions for the State, yet that would not extend
to cover reservations as regards the super-specialty courses where merit
alone matters as has been held by the Constitution Bench in Dr. Preeti
Srivastava and Another vs. State of M.P. and Others[1]. It is urged by her
that equality before law and equal protection of the law serve the purpose
of excellence and if merit is compromised on the bedrock of geographical
boundary, the basic normative principle of equality would be marred.
Learned senior counsel would further contend that the residential
requirement or institutional preference should not be allowed to have any
room in this category of admissions in view of the pronouncements in Nikhil
Himthani vs. State of Uttarakhand[2] and Vishal Goel vs. State of
Karnataka[3]. It is astutely canvassed by her that the principle
pertaining to domicile was laid down more than a decade back in Saurabh
Chaudri vs. Union of India[4], but both the States, namely, Andhra Pradesh
and Telangana have flagrantly violated the said principle and given an
indecent burial to the guidelines issued by the Medical Council of India.
9. Mr. B.H. Marlapalle, learned senior counsel appearing for the
impleaded petitioners would submit that Rule 9 of the Medical Council of
India Postgraduate Medical Education Regulations, 2000, as amended on 21st
December, 2010, deals with the selection of post-graduate students by all
the medical educational institutions all over the country and these
Regulations are indubitably binding on all the universities in both the
States and they cannot be allowed to violate the same. It is his further
submission that the Presidential Order, issued under Article 371-D of the
Constitution is primarily aimed at removing disparities between the three
different regions of Andhra Pradesh, namely, Andhra, Rayalaseema and
Telangana, as prevailing at the time of its formation of the State of
Andhra Pradesh consequent upon the States Reorganization Act, 1956, in
respect of employment and education and the term “education” as finds place
in Clause 2(1)(a) of the Presidential Order, defines the term “available
seats”, which means number of seats in a course for admission at any time
after excluding those reserved for candidates from outside the State.
Learned senior counsel has referred to Clause 3 of the Presidential Order
and highlighted that whatever manner the interpretation is placed on those
clauses, 15% has to be demarcated as non-local quota or available for the
candidates who are not residents of the State. He has emphatically argued
that clause 2(1)(a) of the 1979 circular, is only a clarifactory one and
hence, it cannot convey that the candidates who have passed the examination
from any State other than Andhra Pradesh/Telangana, do not fall in the
category of candidates from outside the State. That apart, it is urged
that in the name of clarification it cannot place an erroneous
interpretation on the Presidential Order, for that will make the said Order
unworkable, and also would cause violence to the language employed in the
Presidential Order.
10. Mr. Marlapalle has referred to paragraph 11 of the 1979 circular to
buttress his stand that the procedure of implementation of reservation is
clear to the extent that 15% reservation will be meant for non-local
candidates. He has given an example by stating that if there are 12 seats
available for a particular super-specialty course in a university, the
available seats will be arrived at by deducting the national quota, that
may be 2 seats, and from the remaining 10 available seats, 85% will be
earmarked for the local candidates and remaining 15% for those who are
listed in Clause 2 of the Presidential Order would go to non-local quota.
He has placed reliance on the prospectus issued for the academic year 2015-
2016 by Dr. N.T.R. University of Health Sciences, Andhra Pradesh,
especially on Clause 3.8 to 3.8.6. Learned senior counsel has also drawn
inspiration from Rule 2(2) of the Rules for Admission to Post Graduate
Courses in the Medical Colleges in the State of Andhra Pradesh, 1983.
Learned senior counsel has criticized that the prospectus of the academic
year 2015-2016 of the universities, namely, Dr. N.T.R. University of Health
Sciences, Andhra Pradesh and Nizam’s Institute of Medical Sciences, which
do not provide for All India quota and only provide for the “available
seats” and, in that backdrop it is suggested that the Medical Council of
India should issue appropriate directions under the approval of the
Government of India to earmark national quota outside the State of Andhra
Pradesh and Telangana in the super-specialty post-graduate medical courses;
and for the current academic year, the Medical Council of India should be
directed to consider to create additional seats for national quota in
respect of these two States so that the Presidential Order is properly
implemented.
11. Mr. Marlapalle has submitted that to understand the controversy in the
proper perspective of the Presidential Order and how the States have worked
it out, the examination of certain Acts, Rules and Regulations, namely. (i)
A.P. Educational Institutions (Regulation of Admission and Prohibition of
Capitation Fee) Act, 1983; (ii) Rules for Admission to Post Graduate
Courses in the Medical Colleges in the State of Andhra Pradesh, 1983; (iii)
The Andhra Pradesh Regulation of Admission to Super Specialties in the
Medical Colleges Rules, 1983; (iv) Andhra Pradesh Medical Colleges
(Admission into Post Graduate Medical Courses), Rules 1997, as modified
from time to time and (v) Medical Council of India Postgraduate Medical
Education Regulations, 2000, as amended from time to time are necessary .
We must immediately state that their relevance shall depend upon our
eventual analysis of the constitutional provision, the Presidential Order
and the 1979 circular issued by the State of Andhra Pradesh.
12. Mr. Mukul Rohatgi, learned Attorney General appearing for the Union
of India, would contend that Article 371-D of the Constitution enables the
President of India to issue certain category of orders and in exercise of
that power the Presidential Order had been issued in relation to the State
of Andhra Pradesh which pertains to the field of education and that covers
the super-specialty courses; and further the 1979 circular issued by the
State Government is not an amendment to the Presidential Order, but only
postulates the manner and method of implementation. It is canvassed by him
that there can be no cavil that merit is the rule in case of super-
specialty courses and there cannot be any reservation, as has been held in
Preeti Srivastava (supra) and subsequent judgments, but this Court has
consistently held that as far as the State of Andhra Pradesh is concerned,
the super-specialty courses would fall beyond the said concept. It is
propounded by Mr. Rohatgi that the submission that 15% would go to the
students who have no domicile in the State, should go to candidates of
other States, is absolutely incorrect in view of the procedure for
implementation of the Presidential Order, which has been elaborately
determined by the State of Andhra Pradesh in 1979. He has commended us to
the decisions in Dr. Pradeep Jain and Others vs. Union of India and
Others[5], Reita Nirankari vs. Union of India[6], Dr. Dinesh Kumar vs.
Motilal Nehru Medical College[7], C. Surekha vs. Union of India[8] and Dr.
Fazal Ghafoor vs. Union of India and Others[9]. Needless to say, the
learned Attorney General has submitted that the principles stated in the
said authorities shall apply on all fours to the State of Telangana.
13. Mr. Harin P. Raval, learned senior counsel, along with Mr. S. Udaya
Kumar Sagar, learned counsel, appearing for the State of Telangana have
adopted the submissions advanced by the learned Attorney General.
14. To appreciate the controversy raised in this writ petition it is
necessary to reflect upon the language employed in Article 371-D of the
Constitution and the interpretation placed by this Court on the said
provision. That apart, it would also be essential to understand the 1979
circular issued by the State of Andhra Pradesh in the year 1979 and how
this Court has perceived the ambit and scope of the same and further also
consider the concept of non-applicability of reservation in respect of the
super speciality courses. Having stated so, we may reproduce Clauses 1 and
2 of Article 371-D of the Constitution, which are relevant for the present
purpose, They read as follows:-
“371-D. Special provisions with respect to the State of Andhra Pradesh or
the State of Telangana.- (1) The President may by order made with respect
to the State of Andhra Pradesh or the State of Telangana, provide, having
regard to the requirement of each State, for equitable opportunities and
facilities for the people belonging to different parts of such State, in
the matter of public employment and in the matter of education, and
different provisions may be made for various parts of the States.
An order made under clause (1) may, in particular,-
require the State Government to organise any class or classes of posts in a
civil service of, or any class or classes of civil posts under, the State
into different local cadres for different parts of the State and allot in
accordance with such principles and procedure as may be specified in the
order the persons holding such posts to the local cadres so organized;
specify any part or parts of the State which shall be regarded as the local
area –
for direct recruitment to posts in any local cadre (whether organized in
pursuance of an order under this article or constituted otherwise) under
the State Government;
for direct recruitment to posts in any cadre under any local authority
within the State; and
for the purposes of admission to any University within the State or to any
other educational institution which is subject to the control of the State
Government;
specify the extent to which, the manner in which and the conditions subject
to which, preference or reservation shall be given or made –
in the matter of direct recruitment to posts in any such cadre referred to
in sub-clause (b) as may be specified in this behalf in the order;
in the matter of admission to any such University or other educational
institution referred to in sub-clause (b) as may be specified in this
behalf in the order,
to or in favour of candidates who have resided or studied for any period
specified in the order in the local area in respect of such cadre,
University or other educational institution, as the case may be.”
15. At this stage we think it appropriate to refer to the relevant
clauses of the Presidential Order. The pertinent clauses, we are inclined
to think, are:-
“(2) It extends to the whole of the State of Andhra Pradesh.
(3) It shall come into force on the 1st day of July, 1974.
2. Interpretation:- (1) In this Order, unless the context otherwise
requires:-
(a) “available seats” in relation to any course of study, means the number
of seats provided in that course for admission at any time after excluding
those reserved for candidates from outside the State.
(b) “Local area”, in respect of any University or other educational
institution, means the local area specified in paragraph 3 of this Order
for the purposes of admission to such University or other educational
institution.
(c) “Local candidate”, in relation to any local area, means a candidate who
qualifies under paragraph 4 of this Order as a local candidate in relation
to such local area:
(d) “State Government” means the Government of Andhra Pradesh.
(e) “State-wide educational institution” means an educational institution
or a department of an educational institution specified in the Schedule of
this Order.
(f) “State-wide University” means the Andhra Pradesh Agricultural
University constituted under the Andhra Pradesh Agricultural University
Act, 1963 (Andhra Pradesh Act 24 of 1963), or the Jawaharlal Nehru
Technological University constituted under the Jawaharlal Nehru
Technological University Act, 1972 (Andhra Pradesh Act 16 of 1972).
(2) Any reference to any District in this Order shall be construed as a
reference to the area comprised in that District on the 1st day of July,
1974.
(3) The General clauses Act, 1897(10 of 1897) applies for the
interpretation of this order as it applies for the interpretation of a
Central Act.
3. Local area:- (1) The part of the State comprising the district of
Srikakulam, Visakhapatnam, West Godavari, East Godavari, Krishna, Guntur
and Prakasam shall be regarded as the local area for the purposes of
admission to the Andhra University, (the Nagarjuna University) and to any
other educational institution (other than a State-wide University or State-
wide educational institution) which is subject to the control of the State
Government and is situated in that part.
(2) The part of the State comprising the districts of Adilabad, Hyderabad,
Karimnagar, Khammam, Mahaboobnagar, Medak, Nalgonda, Nizamabad and Warangal
shall be regarded as the local area for the purposes of admission to the
Osmania University, (the Kakatiya University) and to any other educational
institution(other than a State-wide University or State-wide Educational
institution) which is subject to the control of the State Government and is
situated in that part.
(3) The part of the State comprising the districts of Anantapur, cuddapah,
Kurnool, Chitoor and Nellore shall be regarded as the local area for the
purposes of admission to Sri Venkateswara University and to any other
educational institution (other than a State-wide University or State-wide
educational institution) which is subject to the control of the State
Government and is situated in that part.
4. Local candidates:- (1) A Candidate for admission to any course of
study shall be regarded as a local candidate in relation to a local area
(a) if he has studied in an educational institution or educational
institutions in such local area for a period of not less than four
consecutive academic years ending with the academic year in which he
appeared or, as the case may be, first appeared in the relevant qualifying
examination; or.
(b) Where during the whole of any part of the four consecutive academic
years ending with the academic year in which he appeared or, as the case
may be, first appeared for the relevant qualifying examination, he has not
studied in any educational institution. If he has resided in that local
area for a period of not less than four years immediately preceding the
date of commencement of the relevant qualifying examination in which he
appeared or as the case may be first appeared.
(2) A candidate for admission to any course of study who is not regarded as
a local candidate under sub-paragraph (1) in relation to any local area
shall.
(a) if he has studied in educational institutions in the State for a period
of not less than seven consecutive academic years ending with the academic
year in which he appeared or, as the case may be, first appeared for the
relevant qualifying examination, be regarded as a local candidate in
relation to.
(i) such local are where he has studied for the maximum period out of the
said period of seven years; or.
(ii) Where the periods of his study in two or more local areas are equal,
such local area where he has studied last in such equal periods; or.
(b) if during the whole or any part of the seven consecutive academic years
ending with the academic year in which he appeared or, as the case may be,
first appeared for the relevant qualifying examination, he has not studied
in the educational institution in any local area, but has resided in the
State during the whole of the said period of seven years be regarded as a
local candidate in relation to.
(i) such local area where he has resided for the maximum period out of the
said period of seven years, or.
(ii) Where the period of “his residence in two or more local areas are
equal, such local area where he has resided last in such equal periods”.]
Explanation – For the purpose of this paragraph.
(i) “Educational institution” means a University or any educational
institution recognized by the State Government a University or other
competent authority;
(ii) “relevant qualifying examination” in relation to admission to any
course of study, means the examination, a pass in which is the minimum
educational qualification for admission to such course of study;
(iii) in reckoning the consecutive academic years during which a candidate
has studied,-
(a) any period of interruption of his study by reason of his failure to
pass any examination; and
(b) any period of his study in a State-wide University or a State wide
educational institution, shall be disregarded.
(iv) the question whether any candidate for admission to any course of
study has resided in any local area shall be determined with reference to
the places where the candidate actually resided and not with reference to
the residence of his parent or other guardian.]
5. Reservation in non-State-wide Universities and educational Institutions:-
(1) Admissions to eighty-five percent of the available seats in every
course of study provided by the *(Andhra University, the Nagarjuna
University, the Osmania University.** the Kakatiya University or Sri
Venkateswara University) or by any other educational institution (other
than a State-wide University or a Statewide educational institution) which
is subject to the control of the State Government shall be reserved in
favour of the local candidates in relation to the local area in respect of
such University or other educational institution.
(2) While determining under sub-paragraph (1) the number of seats to be
reserved in favour of local candidates any fraction of a seat shall be
counted as one:
Provided that there shall be at least one unreserved seat.
6. Reservation in Statewide Universities and State-wide educational
institutions (1) Admissions to eighty five percent of the available seats
in every course of study provided by a State-wide University or a State-
wide educational institution shall be reserved in favour of and allocated
among the local candidates I relation, to the *(Local areas specified in
sub-paragraph(1), sub-paragraph(2) and sub-paragraph(3) of paragraph 3, in
the ratio of 42:36:22 respectively:
Provided that this sub-paragraph shall not apply in relation to any course
of study in which the total number of available seats does not exceed
three.
(2) While determining under sub-paragraph(1) the number of seats to be
reserved in favour of the local candidates, any fraction of a seat shall be
counted as one.
Provided that there shall be at least one unreserved seat.
(3) While allocating under sub-paragraph(1) the reserved seats among the
local candidates in relation to the different local areas, fractions of a
seat shall be adjusted by counting the greatest fraction as one and, if
necessary, also the greater of the remaining fractions as another; and,
where the fraction to be so counted cannot be selected by reason of the
fractions being equal, the selection shall be by lot.
Provided that there shall be at least one seat allocated for the local
candidate in respect of each local area.
7. Filling of reserved vacant seats.- If a local candidate in respect of a
local area is not available to fill any seat reserved or allocated in
favour of local candidate in respect of that local area, such seat shall be
filled as if it had not been reserved.
8. Power to authorise issue of directions. – (1) the president may, by
order, require the State Government to issue such directions as may be
necessary or expedient for the purpose of giving effect to this Order to
any University or to any other educational institution subject to the
control of the State Government; and the University or other educational
institution shall comply with such directions.
(2) The State Government may, for the purpose of issuing any directions
under sub-paragraph (1) or for satisfying itself that any directions issued
under that sub-paragraph have been complied with require, by order in
writing, any University or any other educational institution subject to the
Control of the State Government to furnish them such information, report or
particulars as may be specified in the order; and the University or other
educational institution shall comply with such order.”
16. The State Government issued the circular in 1979. The relevant
paragraphs of the circular deserve to be reproduced. They read as follows:-
“2. The Andhra Pradesh Educational Institutions (Regulation of Admissions)
Order, 1974 provides for reservation of seats in favour of local candidates
in courses of study provided by the Universities and other educational
institutions subject to the Control of the State Government. Paragraph 9
of the order lays down that the provisions of that order shall have effect
notwithstanding anything contained in any statute ordinance, rule,
regulation or other order(whether made before or after the commencement of
the Order) in respect of admissions to any University or any other
educational institutions subject to the control of the State Government.
Paragraph 10 of the said Order, however, declares that nothing in the Order
shall affect the operation of any provisions made by the State Government
or other competent authority (whether before or after the commencement of
the Order) in respect of reservations in the matter of admission to any
University or other education Institution in favor or women, socially and
educationally backward classes of citizens, the Scheduled Castes and the
Scheduled Tribes in so far as such provisions are not inconsistent with the
Order.
3. After the coming into force of the above Presidential Order, with effect
from 1-7-1974, admissions to the educational institutions in the entire
State are to be made in the light of the provisions of the said order.
According to Paragraph 4 of the Order a candidate for admission to any
course of study shall be regarded as a local candidate in relation to the
local area, -
(a) If he has studied in an educational institution or educational
institutions in such local area for a period of not less than four
consecutive academic years ending with the academic year in which he
appeared or, as the case may be, first appeared in relevant qualifying
examination; or
(b) where during the whole or any part of the four consecutive academic
years ending with the academic year in which he appeared or, as the case
may be, first appeared for the relevant qualifying examination, he has not
studied in any educational institution, if he has resided in that local
area for a period of not less than four years immediately preceding the
date of commencement of the relevant qualifying examination in which he
appeared, or, as the case may be, first appeared.
4. It must be noted that para 4(a) as extracted above covers the cases of
those candidates who studied in an educational institution or educational
institutions for a period of not less than four consecutive academic years
ending with the academic year in which he appeared or, as the case may be,
first appeared in the relevant qualifying examination, while para 4 (b)
applies to the case of other candidates. For purposes of para 4(a)
educational institution has been defined as a University or any educational
institution recognized by the State Government, a University or other
competent authority. The eligibility of a candidate who has studied during
any part of the four years period in an unrecognized institution will have
to be dealt with the under para 4(b). While considering the eligibility of
a candidate to be regarded as a local candidate, under paragraph 4(a) of
the Order by virtue of four consecutive years of Study in a local area, it
should be noted that in reckoning the consecutive academic years of study,
any interruption in the period of his study ,by reason of his failure to
pass any examination shall be disregarded. For instance, a candidate who
has studied in the IXth and Xth Classes and the Junior and Senior
Intermediate Classes in institutions of the sale local area with a break of
one year after the Xth class on account of failure to pass the Xth Class
examination at the first attempt, shall be regarded as a local candidate in
relation to that local area for admission to a degree course in any
institution in that area.
5. The above definition of the local candidate (as it stood until it was
amended with effect from 25-11-1976) had given rise to certain situations
wherein some of the candidates belonging to the State of Andhra Pradesh who
have studied or resided throughout within the State came to be regarded as
non-local candidates in all the local areas within the State. In order to
avoid such a situation, the Government of India have since issued the
Andhra Pradesh Educational Institutions (Regulation of Admission) Second
Amendment Order, 1976 amplifying the said definition in paragraph 4 of the
Order
6. The Andhra Pradesh Educational Institutions (Regulation of Admissions)
Second Amendment Order, 1976 inserts a new sub-paragraph in the said 1974
Order-viz., sub-paragraph (2) to Paragraph 4 thereby making provision for
considering the claims of persons, who under the old definition would have
become non-local in relation to all local areas in the State. According to
sub-para (2) (a) of Para 4, after amendment, if such a candidate has
studied in educational institutions in the State for a period of not less
than seven consecutive academic years ending with the academic year in
which he appeared on, as the case may be, first appeared for the relevant
qualifying examination, he shall be regarded as a local candidate in
relation to that local area where he had studied for the longest period out
of the said period of seven years. In the event of the periods of study in
two or more local areas being equal he shall be regarded as local candidate
in relation to that local area where he studied during the last of the said
equal periods. Clause (b) to sub-para (2) applies to a candidate who,
during the whole or any part of the seven consecutive academic years ending
with the academic year in which he appeared or as the case may be, first
appeared for the relevant qualifying examination has not studied in
educational institutions in any local area, but has resided in the State
during the whole of the said seven years, the candidate shall be regarded
as a local candidate in relation to that local area where he has resided
for the longest period out of the said seven year period. This residence
test will be applies to candidates in whose cases there is a gap in study,
occasioned otherwise than by reason of failure to pass in an examination,
in the prescribed full term of seven years immediately preceding the
relevant qualifying examination. It has also been provided that where the
periods of residence in two or more local areas are equal, such a candidate
shall be regarded as a local candidate in relation to the local area where
he resided last in such equal periods. The application of the liberalized
definitions made through the Second Amendment Order are illustrated by the
examples given in the Annexure – I.
xxxxx xxxxx
9. The Government have directed that for the purpose of admission into
educational institutions, those who claim to be local candidates with
reference to para 4(1) (a) or para 4(2) (a) of the Andhra Pradesh
Educational Institutions (Regulation of Admissions) Order, 1974 should
produce evidence in the form of study certificates issued by the heads of
the educational institutions concerned indicating the details of the year
or years in which the candidate has studied in an educational institution
or institutions in such local area for a period of not less that four or
seven consecutive academic years ending with academic year in which he
appeared or, as the case may be, first appeared in the relevant qualifying
examination. Those who do not qualify as local candidates under para 4(1)
(a) or 4(2) (a) but claim to qualify by virtue of residence under para
4(1)(b) or para 4 (2) (b) of the said order should produce a certificate
issued by an Officer of the Revenue Department not below the rank of
Tahsildar in the form annexed vide Annexure – II.
xxxxx xxxxx
11. As clarifications were being sought on the question as to who should be
considered eligible to apply as candidates belonging to the State of Andhra
Pradesh for the purpose of admission to courses of studies offered by
educational institutions, subject to the control of the State Government
against 15% of the available seats kept unreserved in terms of Andhra
Pradesh Educational Institutions (Regulations of Admissions) Order, 1974
the Government after careful consideration have directed that the following
categories of candidates may be treated as eligible to apply for admissions
to educational institutions in the State subject to the control of the
State Government, as candidates belonging to the State of Andhra Pradesh
against the 15% of the available seats left unreserved in terms of the
Presidential Order:
(i) All local candidates defined in the Presidential Order.
(ii) Candidates who have resided in the State for a total period of ten
years excluding periods of study outside the State; or either of whose
parents have resided in the State for a total period of ten years excluding
periods of employment outside the state;
(iii) Candidates who are children of parents who are in the employment of
this State or Central Government, Public Sector corporation, Local Bodies,
Universities and other similar quasi-public institutions within the State;
and
(iv) Candidates who are spouses of those in the employment of this State or
Central Government, Public Sector Corporations, Local Bodies, Universities
and educational institutions recognized by the Government a University or
other competent authority and similar other quasi-Government institutions
within the State.
12. It has been decided that persons in the employment of this State or
Central Government, Public Sector Corporations, Local Bodies, Universities
and other similar Quasi-Public Institutions, within the State may be
treated as eligible to apply for admission to the part-time course of study
offered by the educational institutions in the State subject to the control
of the state government as candidates belonging to the State of Andhra
Pradesh.
13. The Government consider that in the large majority of cases falling
under the above categories, “nativity” may not be in doubt. The Heads of
Educational Institutions or other admission authorities may call for
appropriate certificates of study/residence or employment in cases of
doubt.”
We shall, as we are obliged to in the instant case, proceed to deal
with the purport of the said circular on the bedrock of the Presidential
Order. Be it clarified, we are not called upon to decide upon the
constitutional validity of the circular, but to understand the purport of
the same through the interpretative purpose.
17. In Chief Justice of A.P. vs. L.V.A. Dixitulu[10], the question arose
before the Constitution Bench of this Court as to whether Clause 3 of
Article 371-D of the Constitution that deals with civil services of the
State would include the staff of the High Court or of the Sub-ordinate
judiciary. The Constitution Bench held that the statements and objects of
reasons do not indicate that there was any intention whatsoever on the part
of the legislature to impair or derogate from the scheme of securing
independence of the judiciary as enshrined in Articles 229 and 225; and
indeed the amendment or abridgment of this basic scheme was never an issue
of debate in Parliament. The Constitution Bench while commenting on the
Article 371-D had to say this:-
“73. It will be seen from the above extract, that the primary purpose of
enacting Article 371-D was two fold: (i) To promote “accelerated
development of the backward areas of the State of Andhra so as to secure
the balanced development of the State as a whole”, and (ii) to provide
“equitable opportunities to different areas of the State in the matter of
education, employment and career prospects in public service”.
74. To achieve this primary object, clause (1) of Article 371-D empowers
the President to provide by order, “for equitable opportunities and
facilities for the people belonging to different parts of the State in the
matter of public employment and in the matter of education”. Clause (2) of
the article is complementary to clause (1). It particularises the matters
which an order made under clause (1) may provide. For instance, its sub-
clause (c)(i) enables the President to specify in his Order, “the extent to
which, the manner in which and the conditions subject to which”, preference
or reservation shall be given or made in the matter of direct recruitment
to posts in any local cadre under the State Government or under any local
authority. Sub-clause (c) further makes it clear that residence for a
specified period in the local area, can be made a condition for recruitment
to any such local cadre. Thus, clause (4) also is directly designed to
achieve the primary object of the legislation.”
18. After so stating the Constitution Bench has ruled that the evil that
was sought to be remedied pertained to inequitable opportunities and
facilities for the people belonging to different parts of the State of
Andhra Pradesh in matters of public employment and in the matter of
education and had no causal nexus whatever to the independence of the High
Court and subordinate judiciary which the Founding Fathers have with solemn
concern vouchsafed in Articles 229 and 235 of the Constitution. The Court
also opined that the public agitation which led to the enactment of Article
371-D did not have any grievance against the basic scheme of Chapters V and
VI in Part VI of the Constitution. The Court interpreting the Article in
entirety eventually expressed the view that the Parliament never had
intended to confer a wide, liberal interpretation which will defeat or
render otiose the scheme of Chapters IV and V, Part VI particularized in
Articles 229 and 235 of the Constitution.
19. In Dr. Pradeep Jain (supra), a three-Judge Bench was dealing with
admissions to medical colleges, both at the undergraduate and at the post-
graduate levels. The question that arose for consideration was whether
regard being had to the constitutional values, admission to medical
colleges or any other institution of higher learning situated in a State
can be confined to those who have their domicile within the State or who
are residents within the State for a specified number of years or can any
reservation in admissions be made for them so as to given the precedence
over those who do not possess domicile or residential qualification within
the State, irrespective of merit. After referring to various aspects in
the Constitution and authorities rendered in N. Vasundara v. State of
Mysore[11], Jagdish Saran v. Union of India[12] and various other
authorities the three-Judge Bench came to hold thus:-
“We are therefore of the view that so far as admissions to post-graduate
courses, such as MS, MD and the like are concerned, it would be eminently
desirable not to provide for any reservation based on residence requirement
within the State or on institutional preference. But, having regard to
broader considerations of equality of opportunity and institutional
continuity in education which has its own importance and value, we would
direct that though residence requirement within the State shall not be a
ground for reservation in admissions to post-graduate courses, a certain
percentage of seats may in the present circumstances, be reserved on the
basis of institutional preference in the sense that a student who has
passed MBBS course from a medical college or university, may be given
preference for admission to the post-graduate course in the same medical
college or university but such reservation on the basis of institutional
preference should not in any event exceed 50 per cent of the total number
of open seats available for admission to the post-graduate course. This
outer limit which we are fixing will also be subject to revision on the
lower side by the Indian Medical Council in the same manner as directed by
us in the case of admissions to the MBBS course. But, even in regard to
admissions to the post-graduate course, we would direct that so far as
super specialities such as neuro-surgery and cardiology are concerned,
there should be no reservation at all even on the basis of institutional
preference and admissions should be granted purely on merit on all-India
basis.”
20. After the said judgment was delivered, the said three-Judge Bench
passed a clarificatory order in Reita Nirankari (supra) wherein the Court
considered three aspects one of which is relevant for the present case. We
reproduce the same:-
“We may make it clear that the judgment will not apply to the States of
Andhra Pradesh and Jammu and Kashmir because at the time of hearing of the
main writ petitions, it was pointed out to us by the learned advocates
appearing on behalf of those States that there were special constitutional
provisions in regard to them which would need independent consideration by
this Court.”
21. The aforesaid clarificatory order has its own significance, for it
undeniably excludes the applicability of the domicile test stated in Dr.
Pradeep Jain (supra) in respect of the State of Andhra Pradesh. At this
stage, it would be appropriate to refer to the case of C. Surekha (supra).
The said case arose from Osmania University in Andhra Pradesh. The
petitioner therein had passed from the said University and he intended to
take the All India Entrance Examination for admission to P.G. medical
course in 1988. He had challenged the constitutional validity of Article
371-D(2) (b) (iii) and C (ii) of the Constitution as well as the
Presidential Order as a consequence of which the students of Andhra Pradesh
have been excluded for competing in the aforesaid examination. The two-
Judge Bench referred to the decisions in Dr. Pradeep Jain (supra), Reita
Nirankari (supra), noted the stand of the Union of India and the Andhra
Pradesh in their respective counter affidavits that had asserted that
institutions in the State of Andhra Pradesh were kept out of from the
purview of the scheme in view of the decision rendered in the case of Dr.
Pradeep Jain (supra). The Court also took note of the fact that the issue
was kept open in Reita Nirankari (supra), referred to the pronouncements in
P. Sambamurthy v. State of Andhra Pradesh[13], Minerva Mills Ltd. v. Union
of India[14], P. Sampath Kumar v. Union of India[15] and reiterated the
principle that Article 371-D(3) was valid because clause (10) of the
Article 371-D provides as follows:-
“The provisions of this article and of any order made by the President
thereunder shall have effect notwithstanding anything in any other
provision of this Constitution or in any other law for the time being in
force.”
22. As has been stated earlier, Clause 5 of the Article 371-D was
declared ultra vires earlier with which we are not concerned with in this
case. Thereafter, the Court posed the question whether within the
Presidential Order, the Scheme in Dr. Pradeep Jain (supra) can be worked
out. After so stating, the Court noted thus:-
5. .....“The Presidential Order of 1974 defines “available seats” and
“local area” as also “statewide educational institutions” in sub-clauses
(a), (b) and (e) of clause 2. Clause 3 describes the three local areas.
Clause 9 gives overriding effect to the Presidential Order. Under the
Presidential Order, admission to the educational institutions is limited
only to local and nonlocal candidates. It does not contemplate of admission
into educational institutions otherwise. The contention of Mr Choudhary
that if the Presidential Order has got to be given effect to in its true
spirit, the scheme in Dr Pradeep Jain case cannot, consistently with the
Presidential Order, be implemented cannot be brushed aside and bears
serious examination on certain important aspects. If the 15 per cent seats
are not treated as reserved in terms of the Presidential Order and are
intended to go to those who qualify at the All India Entrance Examination
it is a statable possibility that the Presidential Order might be diluted.
It may be doubtful if, in ascertaining the import of ‘available seats’, it
would be permissible to deduct the 15 per cent seats for non-locals
applying the formula of Dr Pradeep Jain case. We are inclined to think that
the contention advanced by Mr Choudhary on behalf of the respondent-State
that within the ambit of the Presidential Order, the scheme adopted by this
Court in Dr Pradeep Jain case is eminently arguable and raises certain
important issues. It is, however, not necessary to pronounce on this
question finally as the petitioner, admittedly, has already been provided
admission in one of the Medical Colleges.
6. Before we part with the case we would, however, like to indicate that
the Scheme in Dr Pradeep Jain case is, in the opinion of this Court, in
national interest as also in the interest of the States. Competition at the
national level is bound to add to and improve quality. Andhra Pradesh
students on the whole are not at all backward and we are of the opinion
that they would stand well on comparative basis. It is for the State and
the Central Governments, apart from the legal issues involved to decide
whether in the general interest of the State, the scheme in the
Presidential Order should either be so understood as to permit and
assimilate the Pradeep Jain principle or should be explained, if necessary,
by an appropriate amendment of the Presidential Order. We would, however,
leave it to the respondents to take their decision in the matter. We would
not like, therefore, to pronounce on the legal question finally in this
case.
23. Relying on the said passages, it is submitted by Mr. Marlapalle,
learned senior counsel that the observations made in 1988, despite expiry
of two decades and seven years, has not been taken note of by the
authorities which indicates an apathetic attitude. Learned senior counsel
would contend that the State of Andhra Pradesh by no stretch of imagination
can be regarded as an educationally backward region compared to rest of the
country. It is also contended by him that the Presidential Order was
issued at a stage feeling the need of the State but the same is not the
condition after passage of more than 40 years. In fact, submits Mr.
Marlapalle, renouncing the merit criteria on the domicile basis especially
in respect of post graduate and super speciality courses would tantamount
to denouncing the concept of merit which has been enshrined commencing from
Dr. Pradeep Jain (supra) to many a judgment rendered thereafter in respect
of the medical education. The protective affirmation meant for the State
of Andhra Pradesh by the Presidential Order issued in 1974 has to be
interpreted in such a manner so that the 50% which has been demarcated
should go to otherwise meritorious candidates who have taken All India
Entrance Examination for super speciality courses. The concept of
continuity of education, its progress and the rise in time, submits Mr.
Marlapalle, requires this Court to give a broader interpretation to the 15%
quota and not to be guided by the 1979 clarificatory circular which is
otherwise indefensible in law.
24. It is apt to note here that Mr. Marlapalle has commended us to the
authority in Dr. Dinesh Kumar (supra), but we need not refer to the same
as it dealt with the reservation on the domicile basis, regard being had to
the principle stated in Dr. Pradeep Jain (supra) and as far as the State of
Andhra Pradesh (undivided) is concerned, the said authority was not made
applicable as stated in Reita Nirankari (supra).
25. At this juncture, it is absolutely necessitous to refer to a three-
Judge Bench decision in NTR University of Health Sciences v. G. Babu
Rajendra Prasad and Anr.[16] In the said case, the question that was posed
was whether the Government of Andhra Pradesh while framing the 1979
circular in terms of Presidential Order issued in 1974 under Article 371-D
of the Constitution of India was bound to provide reservation for 15% of
non-local seats, although reservation in terms of the policy decision had
been taken in respect of the seats available for local candidates. It is
worth mentioning here that the controversy had travelled to this Court
questioning the validity of the policy of the State of Andhra Pradesh as
regards the non-reservation of scheduled castes, scheduled tribes and
backward classes within 15% that has been separately demarcated. The
learned Single Judge of the High Court had directed to reserve 15% seats
reserved for the reserved category. The Division Bench in Letters Patent
appeal noted the conflict of views in earlier Division Bench judgments and
referred the matter to the Full Bench on the issue whether the reservations
in terms of Article 15(4) of the Constitution of India in favour of
scheduled castes, scheduled tribes and backward classes could be provided
in respect of 15% of the unreserved seats under the Presidential Order,
1974. The Full Bench analyzing the law in the field dismissed the
appeals. This Court dealing with the controversy referred to Article 371-D
of the Constitution, the Presidential Order, reproduced various paragraphs
from the same, took note of the 1979 circular issued by the Government of
Andhra Pradesh, noted the submissions of the learned counsel for the
parties, took into consideration the formation of Universities by the
undivided State of Andhra Pradesh after the Presidential Order and stated
thus:-
“10. A bare perusal of the definition of local area read with paras 3, 4
and 5 of the Presidential Order, as referred to hereinbefore, it would be
evident that 85% of the seats are reserved for local candidates in relation
to local areas. So far as a university area is concerned, a local candidate
in one particular university area would be a non-local one in another. The
criteria for admission of a candidate in the superspeciality courses in the
university on the ground of being local or non-local is, therefore directly
referable to the university area and not the boundaries of the State of
Andhra Pradesh.
11. ...... In the matter of admission, the Health University had followed
the procedure provided in Annexure III of GOP No. 646 dated 10-7-1979
having regard to the fact that by reason of the Presidential Order, 1974
only 85% of the seats are reserved in favour of the local candidates which
are required to be confined to the university area only. We, thus, do not
find any legal infirmity in the action of the appellants herein in
directing that 15% reserved for candidates of non-local area may be filled
up only on merit.
12. Article 371-D of the Constitution of India contains a special provision
applicable to the State of Andhra Pradesh only. 54% of seats are required
to be filled up from open categories and 46% of seats are to be filled up
from the reserved category candidates in each of the three regions from the
medical colleges and engineering colleges. Having regard to the
reservations made regionwise, indisputably 85% of seats are to be filled up
from amongst local candidates whereas only 15% of seats are to be filled up
from amongst outside candidates.”
[Emphasis Supplied]
26. Be it noted, it was contended on behalf of the appellant therein that
the High Court had committed a manifest error by directing for reservation
of seats for reserved category from 15% open seats also on the ground that
such a reservation would exceed 50% which is not permissible. The Court
referred to the Presidential Order and eventually opined thus:-
“In the event, the ratio of the impugned judgment of the High Court is
given effect to having regard to the limited number of seats available by
providing reservation of an additional seat, principle of reservation to
the extent is 50% would be violated. Furthermore, it is not for the High
Court to say as to the efficacy or otherwise of the policy of the State as
regards providing for reservation for the reserved category candidates and
in that view of the matter the High Court, in our opinion must be held to
have committed a manifest error in issuing the impugned directions, as a
result whereof percentage of reservation would exceed 46%. Such a direction
by the High Court is not contemplated in law.”
27. Though the said authority had understood local area and the
boundaries of the State, it was instructive to refer to the said passage.
It is clear that it was addressing the controversy as regards the 15% but
dealing with the reservation of scheduled castes, scheduled tribes and
other backward classes within the said 15% percentage in the context of
instructions/circular of 1979 issued by the State Government. The
aforesaid decision makes it graphically clear that the 85% reservation has
been in respect of local areas and non-locals area is directly referable to
the University area. One has to bear in mind that the local areas and
local candidates have been defined in the Presidential Order and it also
empowers the State Government to issue appropriate directions for the
purpose of giving effect to the Presidential Order. In pursuance of the
power conferred in the said Presidential Order, the State Government has
issued the Circular in 1979. The Circular, as is manifest, reiterates the
definitions of “local area” and “local candidates” and simultaneously it
also lays the postulate the manner of implementation of reservation of
local candidates as stipulated in the Presidential Order. As far as 15% of
the available seats which are kept unreserved in terms of Presidential
Order, the State Government relies on the power conferred on it that the
15% of the available seats are kept unreserved subject to the control of
the State Government. The State Government has clarified the position
about the local candidates in respect of 15% as provided in the
Presidential Order. It covers certain categories but the cavil does not
relate to the same. In fact, on a keen scrutiny, it is demonstrable that
it engulfs certain categories which takes within its umbrella such
candidates who are working in the State of Andhra Pradesh in certain State
Government or Central Government or other public undertakings or the
candidates whose spouses are in the employment of the State or Central
Government or public sector corporation, etc. It does not refer to
candidates who are from outside. That is the only interpretation which can
be placed on the circular. It is the situation in vogue in the State of
Andhra Pradesh since 1979 and in the absence of any challenge to the
circular, there is no need to get into it. Therefore, reference to the
other Acts, Rules, Regulations which have been so done by Mr. Marlapalle do
not require to be dwelt upon.
28. One aspect that has been highlighted by Mr. Marlapalle that almost 27
years back, this Court in C. Surekha (supra) had expressed the view that
the scheme indicated in Dr. Pradeep Jain (supra) is in national interest
and competition at the national level is bound to add to and improve
quality and Ahdra Pradesh students on the whole are not at all backward and
they would stand well on the comparative basis. The need for assimilation
of the principles stated in Dr. Pradeep Jain (supra) was felt and it was
observed that there should be an appropriate amendment of the Presidential
Order. However, as the Court cannot do it, it left to the competent
authorities.
29. In this context, the decisions that have been cited by the learned
counsel for the petitioner become relevant. In Preeti Srivastava (supra),
the Constitution Bench expressed that the object of Article 15(4) is to
advance the equality of principle by providing for protective
discrimination in favour of the weaker sections so that they may become
stronger and may be able to compete equally with others more fortunate, but
simultaneously one cannot ignore the wider interests of society while
devising such special provisions. The Court highlighted on the concept of
national interest such as promoting excellence at the highest level and
providing the best talent in the country with the maximum available
facilities to excel and contribute to society which are also to be borne in
mind. Analysing further, the majority stated thus:-
“In the case of Dr Jagadish Saran v. Union of India this Court observed
that at the highest scales of speciality, the best skill or talent must be
hand-picked by selection according to capability. Losing a potential great
scientist or technologist would be a national loss. That is why the Court
observed that the higher the level of education the lesser should be the
reservation. There are similar observations in Dr Pradeep Jain v. Union of
India. Undoubtedly, Dr Pradeep Jain v. Union of India did not deal with
reservation in favour of the Scheduled Castes and the Scheduled Tribes. It
dealt with reservation in favour of residents and students of the same
University. Nevertheless it correctly extended the principle laid down in
Dr Jagadish Saran v. Union of India to these kinds of reservation also,
holding that at the highest levels of medical education excellence cannot
be compromised to the detriment of the nation. Admissions to the highest
available medical courses in the country at the superspeciality levels,
where even the facilities for training are limited, must be given only on
the basis of competitive merit. There can be no relaxation at this level.”
30. In Saurabh Chaudri (supra), the core question that arose for
consideration centered around the constitutional validity of reservation
whether based on domicile or institution in the matter of admission into
post-graduate courses in Government run medical colleges. In the said
case, the court referred to the writ petition filed by the candidates who
were residents of Delhi. They had joined various medical colleges within
Delhi for undertaking their MBBS courses against the 15% all-India quota on
being qualified in the All-India Entrance Examination. They intended to
join medical colleges in Delhi for their post-graduate medical courses.
They were issued admission forms regard being had to the decision in Parag
Gupta (Dr.) v. University of Delhi[17]. The University also informed them
that the candidates would be entitled to admission in the post-graduate
courses subject to the decision in the matter pending before this Court in
Magan Mehrotra v. Union of India[18].
31. In Magan Mehrotra (supra) a three-Judge Bench of this Court held that
reservation by way of institutional preference be maintained but also
directed certain States to follow the pattern of institutional preferences
as has been indicated in Dr. Pradeep Jain (supra). Delhi University issued
a notification on the basis of the judgment rendered in Magan Mehrotra
(supra). The writ petitioners assailed the notification issued by the
Delhi University as reservation was made by way of institutional preference
for admission to post graduate courses. After the decision was rendered in
Magan Mehrotra (supra), a two-Judge Bench referred the matter to a three-
Judge Bench which ultimately directed it to be placed before a five-Judge
Bench. The reservation of any kind, namely, residence or institutional
preference in the constitutional backdrop was the subject matter of assail.
The first question posed for consideration was whether the reservation on
the basis of a domicile is permissible in terms of Clause 1 of Article 15
of the Constitution of India. The Court referred to the decision in D.P.
Joshi v. State of Madhya Bharat[19] and State of U.P. v. Pradip Tandon[20],
and answered the issue in the negative. The second issue that the Court
addressed was whether reservation by way of institutional preference comes
within the suspected classification warranting strict scrutiny test. The
Court referred to Ram Krishna Dalmia v. Justice S.R. Tendolkar[21] and
various other authorities and opined that no case had been made out for
invoking the doctrine of strict construction or intermediate construction.
The third issue that the Court dwelled upon was whether the reservation by
institutional preference is valid. The Court referred to the authorities
in Jagadish Saran (supra), Dr. D.P. Joshi (supra), Chitra Ghosh v. Union of
India[22] and various other decisions including that of Dr. Pradeep Jain
(supra) and opined that in Dr. Pradeep Jain (supra) a distinction was made
between the undergraduate course i.e. MBBS course and post-graduate medical
course as also super specialist courses and, therefore, the said authority
sought to strike a balance of rights and interests of concerned. The
Constitution Bench took note of the fact that the percentage of seats to be
allotted on all-India basis, however, came to be modified in Dr. Dinesh
Kumar (supra). It also took note of the fact that the directions issued
from time to time regulating the admissions in different courses of study
in the said case, the deviation of the said dicta by the two-Judge Bench in
Dr. Parag Gupta (supra) wherein it created reservation on domicile which
was forbidden in Dr. Pradeep Jain (supra). The larger Bench also referred
to the authority in AIIMS Students’ Union v AIIMS[23], T.M. Pai Foundation
v. State of Karnataka[24] and eventually held as follows:-
70. We, therefore, do not find any reason to depart from the ratio laid
down by this Court in Dr Pradeep Jain. The logical corollary of our finding
is that reservation by way of institutional preference must be held to be
not offending Article 14 of the Constitution of India.
71. However, the test to uphold the validity of a statute on equality must
be judged on the touchstone of reasonableness. It was noticed in Dr Pradeep
Jain case that reservation to the extent of 50% was held to be reasonable.
Although subsequently, in Dr Dinesh Kumar (II) case[25] it was reduced to
25% of the total seats. The said percentage of reservation was fixed
keeping in view the situation as then existing. The situation has now
changed to a great extent. Twenty years have passed. The country has during
this time produced a large number of postgraduate doctors. Our Constitution
is organic in nature. Being a living organ, it is ongoing and with the
passage of time, law must change. Horizons of constitutional law are
expanding.
32. In Nikhil Himthani (supra), the Court was dealing with the grievance
that related to equality in the matter of admissions to post-graduate
medical course in the medical college in the State of Uttarakahand
guaranteed by Article 14 of the Constitution which was violated by the
respondents. After noting the contentions of the learned counsel for the
parties, the Court referred to the Constitution Bench judgment in Saurabh
Chaudri (supra) and the pronouncements in Jagadish Saran (supra) and Dr.
Pradeep Jain (supra) and came to hold thus:-
“We now come to Clauses 2 and 3 of the eligibility criteria in the
Information Bulletin. Under Clauses 2 and 3, a domicile of Uttarakhand who
has passed MBBS from a medical college of some other State having been
admitted either through the 15% all-India quota or through the pre-medical
test conducted by the State Government concerned has been made eligible for
admission to a postgraduate medical course in the State quota. Obviously, a
candidate who is not a domicile of Uttarakhand State is not eligible for
admission to the postgraduate course under Clauses 2 and 3 of the
eligibility criteria. Preference, therefore is given only on the basis of
residence or domicile in the State of Uttarakhand under Clauses 2 and 3 of
the eligibility criteria and such preference on the basis of residence or
domicile within a State has been held to be violative of Article 14 of the
Constitution in Pradeep Jain v. Union of India and Magan Mehrotra v. Union
of India.
33. In Vishal Goel (supra), the two-Judge Bench reiterated the principle
laid down in Nikhil Himthani (supra).
34. At this juncture, we may also refer to the Constitution Bench
decision in Faculty Association of All India Institute of Medical Sciences
v. Union of India[26]. In the said case issue arose about the
applicability of reservation in respect of speciality and super speciality
faculty posts in all-India Institute of Medical Sciences. The matter was
referred to a larger Bench by the three-Judge Bench in view of the
decisions rendered in Jagadish Saran (supra), Dr. Pradeep Jain (supra) and
Indra Sawhney v. Union of India[27]. The Constitution Bench after noting
various contentions ruled that:-
“22. Although the matter has been argued at some length, the main issue
raised regarding reservation at the superspeciality level has already been
considered in Indra Sawhney case by a nine-Judge Bench of this Court.
Having regard to such decision, we are not inclined to take any view other
than the view expressed by the nine-Judge Bench on the issue. Apart from
the decisions rendered by this Court in Jagadish Saran case and Pradeep
Jain case, the issue also fell for consideration in Preeti Srivastava case
which was also decided by a Bench of five Judges. While in Jagadish Saran
case and in Pradeep Jain case it was categorically held that there could be
no compromise with merit at the superspeciality stage, the same sentiments
were also expressed in Preeti Srivastava case as well.
23. In Preeti Srivastava case, the Constitution Bench had an occasion to
consider Regulation 27 of the Post Graduate Institute of Medical Education
and Research, Chandigarh Regulations, 1967, whereby 20% of seats in every
course of study in the institute was to be reserved for candidates
belonging to the Scheduled Castes, Scheduled Tribes or other categories of
persons, in accordance with the general rules of the Central Government
promulgated from time to time. The Constitution Bench came to the
conclusion that Regulation 27 could not have any application at the highest
level of superspeciality as this would defeat the very object of imparting
the best possible training to selected meritorious candidates, who could
contribute to the advancement of knowledge in the field of medical research
and its applications. Their Lordships ultimately went on to hold that there
could not be any type of relaxation at the superspeciality level.”
35. Be it noted, the Court laid immense emphasis on paragraph 836 of
Indra Sawhney (supra) wherein the nine-Judge Bench has observed:-
“...that there were certain services and posts where either on account of
the nature of duties attached to them or the level in the hierarchy at
which they stood, merit alone counts. In such situations, it cannot be
advised to provide for reservations. In the paragraph following, the
position was made even more clear when Their Lordships observed that they
were of the opinion that in certain services in respect of certain posts,
application of rule of reservation may not be advisable in regard to
various technical posts including posts in superspeciality in medicine,
engineering and other scientific and technical posts.”
36. Thereafter, the Court proceeded to state further:-
“We cannot take a different view, even though it has been suggested that
such an observation was not binding, being obiter in nature. We cannot
ascribe to such a view since the very concept of reservation implies
mediocrity and we will have to take note of the caution indicated in Indra
Sawhney case. While reiterating the views expressed by the nine-Judge Bench
in Indra Sawhney case, we dispose of the two civil appeals in the light of
the said views, which were also expressed in Jagadish Saran case, Pradeep
Jain case, Preeti Srivastava case. We impress upon the Central and State
Governments to take appropriate steps in accordance with the views
expressed in Indra Sawhney case and in this case, as also the other
decisions referred to above, keeping in mind the provisions of Article 335
of the Constitution.”
37. We have referred to the aforesaid judgments in extenso as learned
counsel appearing for the petitioners have laid immense emphasis that there
cannot be reservation of any kind in respect of post-graduate or super
speciality courses regard being had to the law laid down by many a judgment
of this Court. It is urged that the State of Andhra Pradesh and Telangana
cannot apply the domicile test only to admit its own students and that too
also in respect of 15% quota meant for non-local candidates. We have
already analysed the factual score and the legal position. The undivided
State of Andhra Pradesh enjoys a special privilege granted to it under
Article 371-D of the Constitution and the Presidential Order. The
judgments of the larger Bench do not refer to the said Article nor do they
refer to the Presidential Order, for the said issue did not arise in the
said cases. A scheme has been laid down in the case of Dr. Pradeep Jain
(supra) and the concept of percentage had undergone certain changes. In
Reita Nirankari (supra), the same three-Judge Bench clarified the position
which we have already reproduced hereinbefore. However, in C. Surekha
(supra), the Court had expressed its view about the amendment of the
Presidential Order regard being had to the passage of time and the
advancement in the State of Andhra Pradesh. It has been vehemently urged
by Mr. Marlapalle that despite 27 years having been elapsed, the situation
remains the same. We take note of the said submission and we are also
inclined to echo the observation that was made in the case of Fazal Ghafoor
(supra) wherein it has been stated thus:-
“In Dr Pradeep Jain case this Court has observed that in Super Specialities
there should really be no reservation. This is so in the general interest
of the country and for improving the standard of higher education and
thereby improving the quality of available medical services to the people
of India. We hope and trust that the Government of India and the State
Governments shall seriously consider this aspect of the matter without
delay and appropriate guidelines shall be evolved by the Indian Medical
Council so as to keep the Super Specialities in medical education
unreserved, open and free.”
38. The fond hope has remained in the sphere of hope though there has
been a progressive change. The said privilege remains unchanged, as if to
compete with eternity. Therefore, we echo the same feeling and reiterate
the aspirations of others so that authorities can objectively assess and
approach the situation so that the national interest can become paramount.
We do not intend to add anything in this regard.
39. Consequently, the writ petition as far as it pertains to the State of
Andhra Pradesh and Telangana, is dismissed. As regards State of Tamil
Nadu, the matter be listed on November 4, 2015 for hearing.
.............................J.
[Dipak Misra]
..........................., J.
[Prafulla C. Pant]
New Delhi
October 27, 2015
-----------------------
[1] (1999) 7 SCC 120
[2] (2013) 10 SCC 237
[3] (2014) 11 SCC 456
[4] (2003) 11 SCC 146
[5] (1984) 3 SCC 654
[6] (1984) 3 SCC 706
[7] (1986) 3 SCC 727
[8] (1988) 4 SCC 526
[9] (1988) Supp SCC 794
[10] (1979) 2 SCC 34
[11] (1971) 2 SCC 22
[12] (1980) 2 SCC 768
[13] (1987) 1 SCC 362
[14] (1980) 3 SCC 625
[15] (1985) 4 SCC 458
[16] (2003) 5 SCC 350
[17] (2000) 5 SCC 684
[18] (2003) 11 SCC 186
[19] (1955) 1 SCR 1215 = AIR 1955 SC 334
[20] (1975) 1 SCC 267
[21] AIR 1958 SC 538
[22] (1969) 2 SCC 228
[23] (2002) 1 SCC 428
[24] (2002) 8 SCC 481
[25] (1986) 3 SCC 727
[26] (2013) 11 SCC 246
[27] (1992) Supp (3) 217
-----------------------
17