A. Sambasiva Rao, Acting C.J.
1. Who is a 'local candidate' within the meaning of the Andhra Pradesh Educational Institutions (Regulation of Admission) Order (1974) (hereinafter called 'the Presidential Order') in the State of Andhra Pradesh. This is the crucial question which we will have to answer in these three matters.
2. Let us state the circumstances in which the question arose in the first of the three cases viz., W.A. No. 706 of 1975. The respondent applied for admission into the medical course in the Osmania University. His father has been the Legal Assistant in the Andhra Pradesh Co-operative Central Land Mortgage Bank and has been residing in the city of Hyderabad with his family from 1963. His son, the respondent, studied in the city of Hyderabad upto the year 1969 and passed his 7th class examination held in April 1969. It is alleged that there is no reason to doubt it, in fact it is not denied in the counter-affidavits, that his parents sent him to study in the Zilla Parishad High School, Biccavole on account of raging Telengana agitation in the city at that time, dislocating and disturbing the even life of this area and the studies of the students. With the result, the boy completed his 8th, 9th and 10th classes in Biccavole, during which time his parents were living in Hyderabad. Whenever there were no classes in Biccavole he used to come back to his home at Hyderabad. After completion of the 10th class, he joined the Intermediate course in the New Science College, Ameerpet, Hyderabad in 1972. During 1972-73 he completed his Intermediate course. He first took his final examination in May, 1974. Though he got through the examination, he did not get adequate number of marks for the purpose of applying for admission into the medical course. He once again appeared for the examination in December, 1974 and this time he got through with 62% in group subjects. Thereafter, he applied to the lst appellant viz., the Tahsildar, Hyderabad Urban Taluk, for a certificate that he is a 'local candidate' within the meaning of the Presidential order. That Officer, however, refused to give the certificate. Thereupon, he filed W.P. No. 4203/75 seeking an appropriate writ declaring that he is a 'local candidate' within the meaning of paragraph 4 (b) of the Presidential order and directing the lst appellant to issue a certificate to that effect to enable him to sit at the entrance examination for admission into the Government Medical Colleges in Telangana area. In addition to the lst appellant the Director of Medical and Health Services, Hyderabad was also impleaded as the other respondent in the writ petition. Ramachandra Rao, J, allowed the writ petition and issued a mandamus to the lst appellant to issue a certificate to the respondent that he is a local candidate from the Telangana area. This appeal is against that decision of the learned Judge. To complete the statement of events which have happened in the case under the orders of he court the respondent was permitted to sit for the entrance ex and we were informed at the time of the arguments of the appeal that the respondent was given admission into the Medical College in Telangana area as a non-local candidate.
3. The contention of the respondent is that he does not satisfy the requirements of paragraph 4 (a) of the Presidential Order, since he had not studied for four consecutive academic years ending with the academic year in which he appeared for the qualifying examination. He, however, takes the stand that he comes clearly within the ambit of sub-paragraph (b), because he had resided in Hyderabad for a period of not less than four years immediately preceding the date of the commencement of the relevant qualifying examination in which he appeared. This contention is on the basis that his parents have been residing in the city even since 1963, that he was brought up in the city itself, educated there upto 1969 and was sent out for three years as it became impossible to study in the city on account of the Telangana Agitation and that after the agitation subsided he was again put back in a city College where he completed the qualifying course. Thus, his family and this residence has been in Hyderabad right from 1963 despite the fact that he stayed in Biccavole for three years for the purpose of continuing his studies without disruption.
4. On the other hand, the appellants viz., the Tahsildar and the Director of Medical and Health Services contend that the respondent does not satisfy the requirements of sub-paragraph (b). In the first place, what is required is his residence and not his parents' or family's. It is undoubted that he had resided in Biccavole, outside the Telangana area for three years and thus did not reside for not less than four years immediately preceding the date of commencement of the qualifying examination in which he appeared. Further, the other requirement of sub-paragraph (b) that he should not have studied during the whole or any part of the four consecutive academic years ending with the academic year in which he appeared for the qualifying examination is not satisfied, because he did study during the four consecutive years either in Bicavole or in Hyderabad. They, therefore, maintain that he is not a 'local candidate' within the meaning of paragraph 4 (b) of the Presidential Order.
5. Ramachandra Rao, J, held on a comparative scrutiny of sub-paragraphs (a) and (b) of paragraph 4 that the first requirement of sub-paragraph (b) necessarily relates to what is provided in sub-paragraph (a). That is to say, that he should not be a candidate who fulfills the requirements of sub-paragraph (a). In regard to the requirement of residence, the respondent must be understood as having is residence in Hyderabad itself, because he was obliged to go to Biccavole to continue his studies uninterrupted. But all the time, his parents, his family and his own residence was in Hyderabad itself. It is in this manner the question we have posed at the threshold of our judgment arises for our consideration.
6. Learned Advocate General presented the case of the appellants. Learned Solicitor General who had come down to appear in W.P No. 5366/75, also advanced his arguments on the point on our invitation. Their submission is that the respondent does not come even within the ambit of paragraph 4 (b) since he had not resided in the local area, which is Telangana, for a period of not less than four years immediately preceding the date of the commencement of the qualifying examination, and also for the reason that he had studied during the four consecutive academic years ending with the academic year in which he appeared for the qualifying examination.
7. It is essential to notice the background in which the Presidential Order came to be made, in order to understand the intendment of the President in making paragraph 4 (b) in his Order. After the constitution of the State of Andhra Pradesh in 1956, there were difficulties expressed by the people of the State relating to employment and educational facilities in addition to other problems. There was an agitation i the year 1969 in the Telangana area for constitution of that area into a separate State. A few years thereafter there was a similar agitation in the Andhra Districts for a separate State for those districts. With the intention of resolving the underlying difficulties and problems, which were the basic causes for the two agitations, the Parliament thought necessary to make certain provisions which would be applicable only to the State of Andhra Pradesh for the purpose of solving those difficulties. With that intention, 32nd Amendment to the Constitution was made inserting certain new Articles. While the newly inserted Art. 371-E provided for the establishment of a Central University in Andhra Pradesh, Article 371-D made certain special provisions with respect to the State of Andhra Pradesh in the matters of public employment and education. Material portions of that Article read like this :
'Special provisions with respect to the State of Andhra Pradesh : (10 The President may by other order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the State as a whole, 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 and different provisions may be made for various parts of the State.
(2) An order made under clause (l) may, in particular :
(a) require the State Government to organise any class or classes of posts in civil services of, or any class or classes of civil posts under, the State into different local cadres or different parts of the State and allot in accordance with such principles and procedure as may be specified in the order and the persons holding such posts to the local cadre so organised.
(b) specify any part or parts of the State which shall be regarded as a local area :
(i) for direct recruitment to posts in any local cadre whether organised in pursuance of an order under this article or constituted otherwise under the State Government;
(ii) for direct recruitment to posts in any cadre under any local authority within the State; and
(iii) for the purposes of admission in any University within the State or any other educational institution which is subject to the control of the State Government;
(c) Specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made :
(i) 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 ;
(ii) 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 reside or studied for any period specified in the order in the local area in respect of such cadres, university or other educational institution, as the case may be.'
8. It can be immediately seen that the special provision in respect of the State of Andhra Pradesh has been made by the Parliament in the Constitution to obviate the legal and constitutional difficulties that arose on account of Art. 16 (3) for making special provision in regard to employment and educational facilities for the people belonging to different parts of the State, at the same time having regard to the requirements of the State as a whole. That was because, while the people of the respective parts wee complaining that they should have predominant facilities in their own areas other people were agitation about lack of employment and education facilities even though they have been residing in the areas other than those in which they had been born. Earlier there were in force Mulki Rules, based on the domicile rule. Many decisions were endured by this Court and the Supreme Court as well in regard to them with varying degrees of approbation and reprobation of those rules. But the two agitations, which occurred in the State, radically altered the position and so, the Parliament in regard to the State of Andhra Pradesh which necessitated the amendment of the Constitution itself. In the place of the Mulki rules, the Presidential Order was issued incorporating in them the implementation of the 'six point formula' enunciated by the Government of India to bring about an equilibrium in the life of the people of the State.
9. This background will have to be borne i mind when one tries to understand and spell out the intention of the President in making different provisions in the Order he had issued. This intention will have to be gathered by reading the entirety of the Order, with the aid of the constitutional amendments. Reading a provision here or trying to understand a word there independently by themselves, or turn out of their background and the entirety of the Order, might lead to absurd and preposterous results which might defeat the very purpose for which the President has promulgated the Order. The newly introduced Article 371-D empowers the President to make an order for the State of Andhra Pradesh to bring about equitable opportunities and facilities for the people belonging to the different parts of the State in the matters of public employment and education. This will have to be done with due regard to the requirements of the State as a whole. In so far as educational facilities are concerned, what is relevant is the provisions in para 2 (b). According to it, the President in his Order may specify any part or parts of the State for being regarded as a local area. That will be for the purpose of admission to any University within the State or any other educational institution which is subject to the control of the State Government. The Order can also specify the extent to which, the manner in which and the conditions subject to which preference or reservation 'shall be given or made i the matter of admission to any such University or other educational institutions 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 cadres. University or other educational institutions as the case may be. The words 'in favour of candidates who have resided or studied for any period in the local area' are significant. One of the problems which the constitutional Amendment and the Presidential Order seek to resolve is that of those who have come to reside in areas other than those of their birth either by free volition, or on account of employment or on account of industrial or commercial enterprises. It should also be borne in mind that Hyderabad, which is in the Telangana Area, is the capital town of the State of Andhra Pradesh. Consequently all the Central and Administrative Offices of the State including the Secretariat, High Court and departmental superstructures are located in Hyderabad. So much so, several persons in whatever areas they might have been born, come to reside in Hyderabad to discharge their deferent functions or carry out vocations. Lack of educational and employment facilities to such people on account of the Mulki rules, which had been in force, was one of the grave irritants which provoked the two separatist movements. Likewise, people belonging to Telangana area had bitterly complained that they were deprived of adequate opportunities in their own area. It was a strike of balance and to achieve reconciliation between these two apparently conflicting claims, the Mulki rules were abolished and the 'Six Point Formula', as it has been given shape in the Constitutional Amendment and the Presidential Order, has been substituted. While under the Mulki Rules 15 years residence in Telangana area was one of the requirements, it has now been brought to 4 years obviously to obviate the rigour of the former rule. This residence can only be that of the family and certainly not that of an individual member of the family unless he is a separated one. People who have been living in Telangana area, though they were born in other parts of the State and likewise people living in another area though they were born in Telangana region, should have these facilities provided under the Presidential Order. To separate a dependant, a son or a daughter, from the family for the purpose of consideration of the requirement of residence would not only be preposterous but would positively violate against the very spirit and intendment of the Constitutional Amendment and the Presidential Order. Manifestly and patently the residential requirement is in regard to the family's and not that of any particular individual member of that family. May be for a short while or even for a long while, a dependant in the family may stay in another part of the State, while the family as such continue to reside in the Telengana Area. That stay of the dependant in another part shall not be permitted to take away from the qualification which the family acquires by having resided in the Telangana area for four years and more. It would be the same case in regard to people of Telengana region living in the other parts of the State. If it is not the family's residence that is not postulated by the Parliament in its constitutional Amendment and the President in his Order, then one of the principal purposes for which the amendment Order issued would be defeated. The Presidential Order repeats the same language that the pat as well as the President meant by the words 'candidate residing in the local area' his family including his protectors and guardians living in the local area. In other words, a candidate is meant to reside where his family lives.
10. In paragraph 3 the Presidential Order enumerates what districts constitute what local area, for the purpose of admission to the three Universities in the State (apart from Statewide Universities) namely the Andhra, Osmania and Sri Venkateswara Universities. Coastal region of the State upto and inclusive of Prakasam District is constituted into one local area for the purpose of admission to the Andhra University ; the Telangana area is the local area for the Osmania University, and Nellore and the Royalaseema is the local area for Sri Venkateswara University. Paragraph 5 provides for reservation in non-Statewide Universities and educational institutions. Eighty five per cent of the available seats in every course of study shall be reserved in favour of the local candidates in relation to the local area in respect of such University or other educational institution. It must necessarily follow that the balance of fifteen per cent of seats are made available as an open pool for all applicants without insisting on their being local candidates. Paragraph 4 says who the 'local candidate' are Sub-paragraph (a) makes a candidate 'local candidate' if he has studied in an educational institution in that local area for a period of not less than four consecutive academic years ending with academic year in which he appeared. Sub-paragraph (b) provides :
'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.'
11. Now first taking the requirement of the residence in the local area, undoubtedly it refers to the candidate's own residence because in sub-paragraph (a) also it refers to his study. But then, what is his residence? A candidate generally speaking, is a young boy or a girl dependant upon the parents or guardians for their study and upbringing. Therefore, his or her residence must necessarily be the residence of his or her parents or guardians. It is inconceivable that a dependant can reside independently of his parents or guardians. A divided son or a married daughter may reside by themselves, but not a dependant son or an unmarried daughter. What we are now considering is part and independent from the general background in which the Presidential Order came to be issued. Even going by the actual expression used in paragraph 4 (b) 'a candidate's residence in a local area can be taken only as his residence with his parents or guardians. Supposing he goes to visit, friends or relations in other area during vacations, could it be said that he has not resided in the local area where his parents and guardians have been living? Likewise, if he has been sent by his parents to another area for tuition, coaching and training, could it be said that his residence has changed? To extend illustration if he has been sent by his parents to a different area for study on account of some family inconvenience or local conditions, is it possible to say that the boy had changed his residence from that of the place where he has been living with his family and where he intends to come back. In our considered view it would be violating the natural meaning of the word 'reside' if we say that he has resided elsewhere for those short duration's. It would be appropriate to say that he has merely 'stayed' in the other area for the purpose of the visit, or for the purpose of a temporary study or training, when all the time his residence is the original place where he has always been brought up and where he goes back after that visit or stay.
12. Chamber's Twentieth Dictionary gives the meaning of the word 'reside' as 'to dwell permanently; to be in residence, to abide; to be vested, to inhere'. The Concise Oxford Dictionary gives the meaning of the word 'reside' as 'have one's home, dwell permanently.' Thus the normal and natural meaning of the word 'reside' brings out an element of permanently in living at a particular place. To say that if a young man or woman stays in a particular place temporarily either on a visit or for a short duration for study, he resided in that area and ceased to reside in his home which means the place where he was brought up, where his family lives and where he gets back after his temporary work, would be going against the normal meaning of the word 'reside'. We, therefore, hold that the residence of a candidate, though he has temporarily stayed in another area even for purposes of study or training while his parents, guardians and family reside in the local area from which he has applied for admission to the University and where he has the sense of belonging and where he gets back immediately after the short duration of study in his place of residence. It follows that the respondent in the writ appeal is a resident of the local area which is within the jurisdiction of the Osmania University.
13. Learned Advocate-General invited our attention to paragraph 10 of the Presidential Order to say that the provisions of the Order have overriding effect. The overriding effect given under paragraph 10 is in respect of reservations made in favour of woman, socially and educationally backward classes of citizens, the Scheduled Castes and the Scheduled Tribes and not in regard to other aspects. Be that as it may, the Presidential Order, by virtue of paragraph 9, prevails over any other statute, ordinance, rule, regulation or other Order, whether made before or after its commencement, in respect of admissions to any university or to any other educational institution subject to the control of the State Government. It was possible to give this overriding effect to the provisions of this Presidential Order only because the Constitution itself was amended to incorporate Art. 371-D, the learned Solicitor General pointed out, Articles 15 and 16 ordain that there shall not be any discrimination. Article 19 protects rights relating to residence and setting in any part of the territory of India and to carry on any occupation to all citizens. Article 301 makes trade, commerce and intercourse throughout the territory of India free. Nonetheless, the Parliament was obliged to make special provision in regard to the State of Andhra Pradesh by inserting Art. 371-D in order to remove special difficulties that arose in the State. That is why overriding effect is given to the provision of the Presidential Order.
14. There is no direct judicial pronouncement excepting that of our learned brother under appeal which directly deals with this question. We may, however, refer to the decision of the Supreme Court in Satya v. Tea Singh, : 1975CriLJ52 . There, the question of the validity of a decree for divorce obtained in Nevada Court in the United States of America was under consideration. It arose out of an application made by the wife under Section 488 of the Code of Criminal Procedure, 1898 of 1898. The defence of the husband was that he had obtained divorce from the wife in the Nevada Court, though both of them were Indian citizens. Chandrachud, J, stating the opinion of the court, observed that the Nevada Court assumed and exercised jurisdiction to pass the divorce decree on the basis that the respondent was a bona fide resident of and was domiciled in Nevada. However, on examination of the facts, learned Judge found that the husband spent in the United States on the whole five years. Then the learned Judge pointed out that prior to the institution of the divorce proceedings the husband might have stayed in Nevada but never lived there. He made false representation to the Nevada Court that he was a bona fide resident of the Nevada. In this connection examination of the scope of the words 'residence' and 'domicile' became material. Learned Judge, observed in paragraph 45 :--
'True, that the concept of domicile is not uniform throughout the world and just as long residence does not by itself establish domicile, brief residence may not negative it. But residence for a particular purpose fails to answer the qualitative test for, the purpose being accomplished the residence would cease. The residence must answer 'qualitative as well as quantitative test', that is, the two elements of factum at animus must concur.'
15. Applying this test to the facts of the present case, we feel fully reinforced and supported in the view we have taken about the meaning of the word 'residence' used in the Presidential Order.
16. Learned Solicitor General, however, invited our attention to the judgment of Subba Rao, J, (as he then was) in Jagir Kaur v. Jaswant Singh : 2SCR73 . Once again the matter arose under Section 488, Crl. P.C. The Court had to give the meaning of the crucial words 'resides' 'is' and 'where he last resided with his wife' occurring in sub-clause (8) of that section. Explaining the word 'resides' in the sub-section, Subba Rao, J, (as he then was) observed :--
'It however means something more than a flying visit to or a casual stay in a particular place. There shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. A person resides in a place if he through choice makes it his above permanently or even temporarily whether a person has chosen to make a particular place his abode depends upon the facts of each case.'
It will have to be noted that these observations were made in relation to the facts of the case before the Supreme Court and in construction of Section 488 (8). Nevertheless, the Court made it clear that whether a person has chosen to make particular place his abode depends upon the facts of each case. In the facts of the present case, as we have found, the residence of the respondent has been Hyderabad which is within the local area of Osmania University.
17. The next hurdle that is sought to be raised in the way of the respondent fulfilling the requirements of sub-paragraph (b) is that he had studied in an educational institution during the four consecutive academic years ending with the academic year in which he appeared for the relevant qualifying examination. This first requirement of sub-paragraph (b) is not, therefore, satisfied in the case of the respondent. This argument did not appeal to Ramachandra Rao, J, nor does it persuade us to accept it. Sub-paragraph (a) makes a candidate a 'local candidate' if he has studied in any educational institution in the local area for a period of not less than four consecutive academic years ending with the academic year in which he appeared for the qualifying examination. It is in this context we will have to understand the provisions of sub-paragraph (b). If the candidate has not studied in any educational institution in the local area, then the question of application of sub-paragraph (b) arises. This requirement is obviously intended to exclude candidates falling within sub-paragraph (a0 and to cover candidates who have satisfied the requirement of residence. It cannot be understood to operate as a disqualification against any candidate who has studied in any educational institution in the local area. If the argument of the learned Advocate General or Solicitor General is to be accepted a candidate should not have studied in any educational institution whatever, if he is to qualify himself under sub-paragraph (b). When the provision is being made to enable candidates to secure admission into University and educational courses, it is untenable and even preposterous to think that the President has laid an impossible embargo that the candidate should not have studied in any educational institution. Learned Solicitor General tries to get over this patent absurdity by saying that perhaps a candidate could have studied privately without attending any educational institutions. It is impossible to understand that the provision is intended only for candidates who have studied privately. Study in an educational institution in order to enter the University or a higher educational institution is essential and so, it is not permissible to import a bar against study in any educational institution as a pre-condition for qualifying a candidate to become a local candidate. It is well known that a harmonious construction, which advances the purposes and intention for which the order is made, has to be laid on the provisions. If that rule of construction is applied, it necessary follows that sub-paragraph (a) prescribes the educational requirement, while sub-paragraph (b) prescribes the residential requirement for making a candidate a 'local candidate'. Therefore, it is reasonable to understand sub-paragraph (b) as providing for qualifying a candidate as a local candidate who has resided in the local area for four years when he has not satisfied the requirement of sub-paragraph (a). Thus, we see no substance in any of the objections raised by the learned Advocate General and the learned Solicitor General for treating the respondent as a local candidate. We are in agreement with Ramachandra Rao, J, in holding that the respondent satisfies the requirement of para 4 (b) and is a local candidate qualified to seek admission into the Osmania University. In the result, the writ appeal is dismissed.
18. Coming to W.P. No. 5366/1975 the petitioner is the daughter of a Government employee. She appeared for the entrance test held in September, 1975 whose results were announced in Oct. 1975 where she obtained 125 out of 200 marks in group subjects. She applied to Sri Venkateswara University but she was not considered on the ground that she was not a local candidate. Her father originally hailed from Cuddapah within Sri Venkateswara University but was appointed in the Registration Department of the Government of Andhra Pradesh. According to the exigencies of service he was posted at Ongole, then in Chittoor District, then in Gudivada, and later transferred to Kurnool in January, 1975 when the father was at Gudivada the gird did her intermediate course at that place. It thus transpired that the parents did not reside for four years continuously in any particular local area. The argument advanced for her by the learned counsel is that since the family originally hailed from Cuddapah, she must be treated as a local candidate relating to Sri Venkateswara University. Unfortunately, this cannot be done because it does not come within the scope of either sub-paragraph (a) or sub-paragraph (b) of paragraph 4 of the Presidential Order. So, this Court cannot help her.
19. In W.P. No. 5401 of 1975 the petitioner was an applicant for medical course in the Osmania University. He is the son of a Government servant. When his father was working in Hyderabad, he did his first year of intermediate course in Hyderabad. Then for the two months when his father was in Kurnool, he studied for two months there and then from July 1974, when his father was again transferred to Hyderabad he completed his intermediate course in Hyderabad. He secured only 115 marks out of 200 in the group subjects. Learned Government Pleader pointed out and also placed before us the local candidate in the Osmania University the last candidate obtained 138 marks out of 200 and so, the petitioner could never dream of getting into the selection list out of the 85 per cent of the seats reserved for local candidates.
20. The learned counsel argued and the same argument was adopted by the learned counsel for the petitioner in W.P. No. 5366 of 1975 though the point was not raised in the writ petition, that the remaining 15 per cent of the seats after reservation of 85 per cent for the local candidates in all the three Universities should be pooled together and the most meritorious of all the candidates should be selected out of the common pool. It was pointed out that a common entrance test is held for all the Universities conducted y a common examination board and then the selection committee appointed by the Government selects candidates in accordance with merit on the basis of a master merit list. It was, therefore, submitted that the balance of 15 per cent in all the three Universities should be pooled together and selection on the basis of merit of all the candidates, who have applied to all the three Universities should be made. We do not think that this is permissible. The applications are required to be made to the Principal of each College. There are two colleges in each University and the applications may be sent to the Principals of the six colleges. Records were placed before us which sowed that the Government appointed three Selection Committee, one for each University. The three committees made selections for their respective Universities on the basis of the merit list. In the circumstances, it is reasonable to limit the consideration of the available general pool of 15 per cent of the seats only to those who applied to the particular University. We do not think it is reasonable to say that the 15 per cent of the seats made available for non-local candidates should be pooled together In this view, we direct the respondents to consider the cases of the petitioners in W.P. Nos. 5366 and 5401 of 1975 within the 15 per cent of the non-local candidate seats available in each of the two Universities. With this observation, these two writ petitions are dismissed.
21. In the result, the writ appeal as well as the two writ petitions are dismissed but in the circumstances without costs. Advocate's the Rs. 150 in each case.
22. Appealandpetition dismissed.