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Kannan Narayanan Vs. State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 11640 of 1984
Judge
Reported inAIR1985AP149
ActsAndhra Pradesh Regulation of Admission of Students into Medical Colleges Government Dental College Rules, 1983 - Rule 7(9); Constitution of India - Articles 14 and 371-D; Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974; Andhra Pradesh Admission Rules, 1983
AppellantKannan Narayanan
RespondentState of Andhra Pradesh and anr.
Appellant AdvocateH.S. Gururaja Rao, Adv. for ;T.R. Manohar Rao, Adv.
Respondent AdvocateGovt. Pleader for ;Education
Excerpt:
constitution - reservation - rule 7 (9) of andhra pradesh regulation of admission of students into medical colleges government dental college rules, 1983, articles 14 and 371-d of constitution of india, andhra pradesh educational institutions (regulation of admissions) order, 1974 and andhra pradesh admission rules, 1983 - petitioner application for appearing in entrance examination was rejected on ground that petitioner did not belong to respondent state - petitioner claimed that rule 7 (9) was violative to article 14 - under presidential order eighty five percent seats were reserved for local candidates remaining fifteen percent seats were reserved for candidates fulfilling qualification of resident of respondent state under rule 7 (9) - presidential order disentitled candidates living.....order1. the petitioner seeks a writ of certiorari to quash r.7 of the andhra pradesh regulation of admission of students into medical colleges govt. dental college rules, 1983 (for short ''he admission rules'' as unconstitutional and void being violative of art. 14 of the constitution and also to quash the memorandum no. bst/ent/84 dated 19-7-1984 issued by the principal, osmania medical college, hyderabad informing the petitioner that he is not eligible to sit for m.b.b.s. entrance examination for the year 1984-85, as he does not belong to andhra pradesh. learned counsel for the petitioner, during the course of the arguments, however, confined the objections only to the validity of r.7 (9) of the admission rules and did not contend that the provisions contained in r.7 other than in.....
Judgment:
ORDER

1. The petitioner seeks a writ of certiorari to quash R.7 of the Andhra pradesh Regulation of Admission of Students into Medical Colleges Govt. Dental College Rules, 1983 (for short ''he Admission Rules'' as unconstitutional and void being violative of Art. 14 of the Constitution and also to quash the Memorandum No. BST/ENT/84 dated 19-7-1984 issued by the Principal, Osmania Medical College, Hyderabad informing the petitioner that he is not eligible to sit for M.B.B.S. Entrance Examination for the year 1984-85, as he does not belong to Andhra Pradesh. Learned counsel for the petitioner, during the course of the arguments, however, confined the objections only to the validity of R.7 (9) of the Admission Rules and did not contend that the provisions contained in R.7 other than in sub-rule (9) were unconstitutional. It is, therefore, necessary to examine how far R.7 (9) of the Admission Rules is violative of Art. 14 of he Constitution, as contended by the petitioner. In order to appreciate the contention, it is necessary to briefly set out the historical back ground.

2. By S.3 of the Constitution (Thirty- Second Amendment) Act 1973, Art. 371-D was introduced with effect from 1-7-1974. The provisions in Art. 371-D were directed towards making special provision with respect to the State of Andhra Pradesh in the matter of public employment and in the matter of education having regard to he requirements of the State as a whole for equitable opportunities and facilities for the people belonging to different parts of the State. Art. 371-D(1) confers power on the President to make an order for the above purpose. Art. 371-D(2) specifies the matters which can form the subject-matter of the order which may be passed by the President. It is provided inter alia that the order of the President may specify any part or parts of the State which shall be regarded as the local area 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. It is also provided inter alia that the order may specify the extent to which, the manner in which and the conditions subject to which, preference shall be given or made in the matter of admission to any such University or other educational institution referred to in sub-cl. (b) of Art. 371(d)(2) 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 university or other educational institution. In ex4rcise of the above power, the president of India made with respect to the State of Andhra Pradesh an order called 'The Andhra pradesh Educational Institutions (Regulation of Admissions) Order, 1974' (hereinafter referred to as 'the presidential Order'). Under the presidential order, the State of Andhra pradesh is divided into three parts. The first part may be popularly called the area consisting of the Circar Districts, the second part consisting of the districts in the Telangana area and the third part consisting of the district in the Rayalaseema area. The first part relating to Circar Districts comprised of the Andhra University and Nagarjuna University the second part comprising the Telangana area included the Osmania university and the Kakatiya University and the third part relating to Rayalaseema area included Sri Benkateswara university. The State is thus divided into three local areas. Paragraph 4 of the presidential order deals with the local candidates for admission to any course of study in relation to a local area and sets out the requirements for eligibility to admission in each particular local area. Suffice it for the present purpose to state that the eligibility is determining (determined) with reference to he residential qualification in the local area of the candidate seeking admission to any course of study. Paragraph 6 of the presidential order specifies reservation in State wise universities and Statewide educational institutions. Admissions to eighty five per of the available seats in every course of study provided by a Statewide University or a Statewide educational institution shall be reserved in favour of and allocated amongst the local candidates in relation to the local areas specified above. The proportion in which the available seats shall be allocated among the three local areas is also mentioned. The Presidential Order does not specify as to how the balance of fifteen per cent of the available seats shall be filled in. Paragraph 9 of the presidential Order provides that the provisions of the Order shall have effect hot withstanding anything contained in any statute, ordinance, rule regulation or other order (whether made before or after the commencement of this order) in respect of admission to any university or to any other educational institution subject to the control of the State Government. Paragraph 10 of the presidential Order provides that nothing in the order shall affect the operation of any provisions made by he State Government or other competent authority in respect of reservations in the matter of admission to any university or other educational institution in favour of women, socially, educationally backward classes of citizens, the Scheduled Castes and the Scheduled Tribes in so far as such provisions are not inconsistent with the order. On a brief survey of the above provisions, it would be seen that provision is made by the presidential order for filling in the available seats in every course of study in each local area by he local candidates and it is obligatory that eight-five per cent of the available seats shall be filled in by the Local candidates in relation to each local area.

3. In the implementation of the Presidential Order, doubts seem to have arisen as to how the balance of fifteen per cent of the available seats should be filled in. it was thought that the balance of fifteen per cent of the seats were reserved only for non-local candidates and consequently, local candidates, who are unable to secure admission in the reserved quota of eighty five per cent, could not be considered against the balance of fifteen per cent of the seats reserved for anon local candidates. In other words, it was thought that the balance of fifteen percent of the seats were reserved only for non-local candidates. This aspect came to be considered by a Division Bench of this Court in Pampapathi Reddy v. Government of Andhra pradesh (1977) 1 Andh WR 224. After examining the provisions of the presidential order this court held that as per the presidential order the balance of fifteen per cent of the seats were left open. Nothing was mentioned in the Presidential order specifically to show that no local candidates could be admitted in the balance of fifteen per cent of the seats. This court also held that it could not be said that the balance of fifteen per cent of seats were reserved only for non-local candidates when the presidential order does not specifically mention anything with regard to the reservation of fifteen per cent of the seats for non-local candidates. After the above judgment of this court, the Government of Andhra Pradesh issued G.O.P. No. 646, Education (W) Department, dated 10th July, 1979. In paragraph 11 of the said G.O. a clarification was given 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 the educational institutions, subject to the control of the State Government, against the fifteen percent of the available seats kept unreserved in terms of the presidential Order. It is relevant to note that the clarification is given on the basis that the candidates, who are eligible for consideration against the fifteen per cent of the available seats must belong to the State of Andhra pradesh. On the aforesaid basis, the Government specified that the following categories of candidates belonging to the State of Andhra pradesh could be considered for admission against the fifteen per cent of the available seats kept unreserved in terms of he 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 Corporations, 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 Corporation, Local Bodies, Universities and educational institutions recognised by he Government a University or other competent authority and similar other quasi-Govt., institutions within he State.'

Having referred to the above provisions, which are relevant for the purpose I may now refer to the Andhra Pradesh Educational Institutions (Regulation of Admission and prohibition of Capitation Fee) Act 1983 (Andhra Pradesh Act No. 5 of 1983) (hereinafter referred to as 'the said Act'). S.3 of the said Act contains provisions regulating admission of candidates into educational institution. It specifies that, subject to such rules as may be made in that behalf, admission into educational institutions shall be made either on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test conducted by such authority and in such manner as may be prescribed. There is a proviso to this section stating that admission into Medical and Engineering Colleges shall be made only on the basis of the ranking assigned in the commission entrance test conducted as aforesaid. S.15 (1) of the said Act confers power on the Government to make rules, by notification, for carrying out all or any of the purposes of the said Act. In exercise of the powers conferred by S.3 read with sub-sec. (1) of S.15 of the said Act, a notification was issued by the Government in G.O. Ms. No. 351, M. & H. dated 10th June, 1983 as amended in G.O. Ms. No. 502 M & H. dated 14th June, 1984. Reference to the rules made by the above notification has already been made earlier and these rules govern the admission of candidates inter alia into Medical Colleges in the State of Andhra pradesh in the aforesaid local areas. A total number of 920 seats were provided for the eight colleges situate within the three local areas referred to above. In addition to those 920 seats, eight additional seats were also created for reciprocal admission of candidates from other States and vice versa and reciprocal admissions are regulated as per the orders issued in G.O. Ms. No. 508, Medical & Health, dated 27th July, 1979. It may also be mentioned that, out of 920 seats, 12 seats are reserved for the candidates nominated by the Government of India. It is enough to state that the Government of India can nominate candidates against these 12 seats irrespective of the fact whether such candidates reside in the state of Andhra pradesh or elsewhere. The rule does not purport to reserve seats by way of nomination by the Government of India for candidates residing outside the State of Andhra pradesh. R.7 of the Admission Rules, which is relevant for consideration in the present writ petition deals with the reservation in favour of local candidates. Admission of eighty-five per cent of the seats in the First Year M.B.B.S Course is regulated by various provisions in this rule, with which we are not concerned. There is no dispute regarding the reservation of the eighty five per cent of the available seats of the local candidates in the three local areas specified above pursuant to the Presidential Order. Sub-rule (9) of R.7, which is attacked in the present writ petition as unconstitutional, being violative of Art. 14 of the Constitution, deals with the admission of the candidates to the remaining fifteen per cent of the unreserved seats. I have earlier referred to the order of the State Government in G.O. P No. 646 dated the 10h July, 1979 and to the guidelines mentioned in paragraph 11 of the said G.O. regarding the admission of the candidates against the fifteen per cent unreserved quota. I have also pointed out that the basis of admission against the fifteen per cent unreserved quota was that the candidates must belong to the State of Andhra Pradesh. The four categories of persons specified in paragraph 11 are now statutorily recognised in R. 7(9) of the Admission Rules. Since this is under challenge, it would be appropriate to extract the rule.

'R. 7(9) The Following categories of candidates are eligible to apply for admission to the remaining 15% of unreserved seats;

(a) All candidates defined under rule 7(4) and 7(6) (Study certificate/residence certificates should be enclosed)

(b) Candidates who have resided in the State for a total period of ten years excluding period of study outside the State or either of whose percents has resided in the State for a period of ten years excluding periods of employment outside the State; (certificate to the effect from Revenue Official not below the rank of Tahsildar or Deputy Tahsildar/ in case of independent sub-taluk from where the candidate is claiming eligibility should be enclosed.)

(c) 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 Institution within the State (Certificate from the Head of the Institution/Department should be enclosed.)

(d) Candidates who are spouses of those in the employment of the State or Central Government, Public Sector Corporations, Local Bodies, Universities and educational institutions recognised by the Government a University or other competent authority and similar other quasi-Government institutions within the State (Certificate from the Head of the institution/Department should be enclosed.) a reference to the categories of candidates specified against Cls. (a) (c) and (d) above referred would reveal that the categories referred to in paragraph 11 of the G.O.P. No. 646 dated the 10th day of July 1979 formed again the subject-matter of consideration. The category against cl. (a) refers to the local candidates with the result that the candidates residing in the State of Andhra pradesh, who have not been able to secure admission against the reserved quota of eighty-five per cent for the local candidates, are entitled to be considered against the fifteen per cent unreserved quota, Cls. (b), (c) and (d) would reveal that the basis followed is residence in the State of Andhra Pradesh of the candidates or the parents or both or the candidates who are spouses of those in the employment of the State. Basically, therefore, residence in the State of Andhra Pradesh is the qualification for consideration against the unreserved quota of fifteen per cent.

4. Under the presidential Order, eighty five per cent of the available seats are reserved for the local candidates living in the three specified local areas in the State of Andhra pradesh. Under the Admission Rules, the balance of fifteen per cent of the available seats are thrown open only to candidates who fulfil the qualification of residence in the State of Andhra pradesh, whether such reference is of the candidates concerned or of the parents of the candidates or both or of the spouses in the employment of the State. It follows, therefore that only candidates fulfilling the qualification of residence in the State of Andhra Pradesh will be entitled for consideration for admission into First Year M.B.B.S. Course of Study. The presidential Order, read with the Admission Rules, disentitles a candidate living outside the State of Andhra Pradesh for consideration of admission into any of the Medical Colleges in the State of Andhra Pradesh. This is the present legal position regarding admissions.

5. Coming now to the facts of the present case, the petitioner is admittedly not a resident of the State of Andhra pradesh. He passed his Intermediate Examination during the academic years, 1982-84 from Kendruya Vidyalaya, Jyothipuram, Jammu & Kashmir. He applied for M.B.B.S. Course in response to the notification issued by the Government through G.O. Ms. No. 351, Medical and Health Department dated 10th June, 1983 as amended in G.O. Ms. No. 502 Medical & Health Department dated 15th June, 1984 referred to above. His application for admission was returned by the principal of the Osmania Medical College, Hyderabad through his Memorandum No. BST/ENT/84 dated 19-7-1984. The memorandum is extracted below:

'Mr. Kannan Narayanan, son of Brig. P.N.S. Narayanan is informed that he is not eligible to sit for M.B.B.S. Entrance Examination for the year 1984-85, as he does not belong to Andhra Pradesh to be considered under Rule 9 of G.O. Ms. No. 451 M & H dated 10-6-1983 as amended in G.O. Ms. No. 502, M & H dated 14-6-1984.

The application form is returned herewith.'

It may be pointed out that the reference to R. 9 in the memorandum is an obvious mistake for R.7 (9) of the Admission Rules. Thereupon the petitioner filed the present writ petition in this court on 20-7-1984 questioning the validity of R.7 (9) of the Admission Rules. Learned counsel appearing for the petitioner, Sri H.S. Gururaja Rao contended that R.7 (9) of the Admission Rules referred to above is violative of Art. 14 of the Constitution as being disscriminatory. He urged that so far as the reservation of eighty-five per cent in favour of the local candidates pursuant to the Presidential Order is concerned, it is not open to him to challenge the reservation, because of the overriding effect of the Presidential Order. It is urged that the Presidential Order does not deal with the manner in which the balance of fifteen per cent unreserved seats should be filled in and, therefore, the provisions relating to the admission of candidates to the remaining fifteen per cent unreserved quota should accord with the constitutional requirement of equality. According to the learned counsel, refusal to consider the claims of a candidate living outside the State of Andhra Pradesh against the fifteen per cent unreserved quota is hit by the equality clause in Art. 14 of the Constitution. Learned counsel contended that it is not open to the State Government to reserve the entire 100% seats belonging to and residing in the State of Andhra Pradesh. The categorisation of candidates for admission against the fifteen per cent unreserved quota in R.7 (9) of the Admission Rules restricts the admission of candidates only to candidates with the residential qualifications in the State of Andhra Pradesh and ousts from consideration the claims of candidates not belonging to and residing outside the State of Andhra Pradesh. Learned counsel urges that the reservation in respect of the four categories under R.7 (9) against the fifteen per cent unreserved quota is unconstitutional and must, therefore, be struck down. Learned counsel relied on the latest decision of the Supreme Court in Pradeep Jain v. Union of India : (1984)IILLJ481SC Learned counsel also relied on the decision of the Supreme Court in Jagdish Saran v. Union of India : [1980]2SCR831 and a Full Bench decision of this Court in M. Narasimha Rao v. State : AIR1980AP104 . I shall presently refer to these decisions.

6. Learned Government Pleader, Sri Quardri urged that R.7 (9) of the Admission Rules, which is under challenge, is perfectly valid and is not hit by Art. 14 of the Constitution. The learned Government Pleader under (Sic) the following pleas:

(i) Art. 371-D of the Constitution is a special provision and the State of Andhra Pradesh is treated as a class by itself. Under Art. 371D(10), the provisions of that Article and of any order made by the president thereunder shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force. Learned Government Pleader urges that the reservations of eighty-five per cent as well as fifteen per cent originate from the Presidential Order and cannot, therefore, be questioned as constitutionally invalid:

(ii) The whole scheme of the presidential Order issued under Art. 371-D is to provide admission to candidates in the State of Andhra pradesh based on principle of residence either in the local area or in the State. The impugned R.7 (9) has nexus to this scheme in providing categories based on residence. It cannot, therefore, be said to be violative of Art. 14 of the Constitution;

(iii) Under the Presidential Order, reservation is only of the 'available seats' as defined in paragraph 2(a) of the Presidential Order and a candidate residing outside the State of Andhra Pradesh cannot seek admission against the 'available seats' whether or not the relevant rules provide for reservation of seats for outside State candidates; and

(iv) The decision of the Supreme Court in Pradeep Jain v. Union of India : (1984)IILLJ481SC has no application to the State of Andhra pradesh as per the clarification given by the Supreme Court itself subsequent of the pronouncement of the judgment.

7. A scrutiny of the Presidential Order unmistakably indicated that it deals with the reservation of available seats to the extent of only eighty five per cent in favour of the local candidates in the corresponding local areas. There is absolutely no reference in the Presidential Order as to how the balance of fifteen per cent of the available seats forming the unreserved quota should be dealt with. This view is clearly fortified by the decision of the Division Bench in Pampapathi Reddi v. Government of Andhra Pradesh (1977) 1 Andh WR 224, to which I have already referred above. That the Presidential Order is totally silent about the manner in which the fifteen per cent unreserved quota of seats should be filled in is, in my opinion, not open to question. It is not possible to accept the contention of the learned Government Pleader that, because of the scheme of the Presidential Order issued under Art. 371-D, not only eighty-five per cent of the available seats should be provided to the local candidates living in the three local areas of the State of Andhra Pradesh, but also the remaining fifteen per cent unreserved quota. The fifteen per cent unreserved quota has absolutely no nexus with the qualification of residence in the State, as urged by the learned Government Pleader. The learned Government Pleader is right in his submission that Art. 371-D(10) provides that the provisions of that Article and of the presidential Order shall have effect notwithstanding anything in any other provision of the Constitution or in any other law for the time being in force. It is because of the overriding effect of Art. 371-D and the Presidential order that no challenge is made against the reservation of eighty-five per cent of the available seats to candidates living in the State of Andhra pradesh. Learned Counsel for the petitioner is fortified in his statement that, had it not been for Art. 371-D(10) it would have been legally permissible to question the high reservation of eighty-five peer cent in favour of candidates residing in the State of Andhra Pradesh. It is because of Arts. 371-D and the presidential Order that the reservation to the extent of eighty-five per cent has been acquiesced in as constitutionally valid. This does not lead to the further consequence that there can be no challenge on the ground of constitutionality against R.7 (9) of the Admission Rules interrelation to the fifteen per cent unreserved quota, as the seats corresponding to the fifteen per cent are also reserved for candidates on the basis of residential qualification in the State disentitling all candidates outside the State from consideration. I am unable to accept the learned Government Pleader's contention that Art. 371-D(10) is a bar considering the question whether the reservation against the fifteen per cent unreserved quota in favour of candidates on the basis of the residential qualification in the State of Andhra Pradesh is hit by Art. 14 of the Constitution. I am also unable to accept the submission of the learned Government Pleader that consideration of the decision of the Supreme Court in Pradeep Jain v. Union of India : (1984)IILLJ481SC is irrelevant, inasmuch as the Supreme Court clarified after the pronouncement of the judgment that it does not apply to the State of Andhra pradesh. True, the judgment of the Supreme Court may not be applicable to the State of Andhra Pradesh in so far as it concerns the limits of reservation considered reasonable by the Supreme Court. A detailed reference to the Supreme Court judgment will be made in the succeeding paragraphs; but it may be relevant to mention at this stage that the Supreme Court held that not more than seventy per cent of the seats could be reserved in favour of candidates based on residential qualification of a particular State and that is the outer limit. The Supreme Court held that the balance of thirty per cent must be thrown open in the open competition on merit for candidates throughout India. If this decision were to be applied, eighty-five per cent in favour of the local candidates in the State of Andra Pradesh may be open to challenge, but that challenge cannot be entertained to the outer limit of eighty-five per cent because of the Presidential Order. The clarification of the Supreme Court subsequent to the pronouncement of the judgment that it shall not apply to the State of Andhra Pradesh can have reference only to the outer limit of eighty-five per cent instead of seventy per cent enunciated by the Supreme Court in its judgment. I am unable to accept the contention of the learned Government Pleader that the wholesome principles enunciated by the Supreme Court in this regard should be totally disregarded in the State of Andhra Pradesh because of Art. 371-D and the presidential Order. Equally untenable, in my opinion, is the argument of the learned Government Pleader that under the Presidential Order, reservation is only of the 'available seats' as defined in Paragraph 2(a) of the Presidential Order and a candidate outside the State of Andhra Pradesh cannot seek admission against the 'available seats', whether or not the relevant rules provide reservation of seats for outside State candidates. The definition of the expression 'available seats' occurring in Paragraph 2(a) of the presidential Order may be extracted;

' '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.'

The contention of the learned Government Pleader is that the reservation of seats is with reference to the available seats after excluding those reserved for candidates from outside the State and consequently the percentages of eighty-five and fifteen are referable only to available seats after excluding the seats reserved for candidates from outside the State. Learned Government Pleader admits fairly that in the Admission Rules, no reservation is made for candidates from outside the State as such. According to him, it must be held that 'nil' number of seats is reserv4d and consequently, the available seats are 920 as per the Admission Rules and, therefore, the percentages of eighty five and fifteen will have to be determined with deference to the candidates having residential qualification. In my opinion the argument is too nave. One can understand the plausibility of the contention if the Admission Rules make separate provision of reservation for candidates outside the State. When the rules do not make any such provision, the proposition is too extravagant to accept that all the available seats without reservation for candidates from outside the State should be thrown open only to candidates having residential qualification in the State of Andhra pradesh. Learned Counsel points out to R.4 of the Admission Rules which refers to 12 seats reserved for the candidates nominated by the Government of India. According to him, these 12 seats could be considered as having been reserved for the candidates outside the State. I am afraid the contention is untenable. There is nothing in R.4 to show that the Government of India could nominate for the 12 seats only candidates from outside the State of Andhra pradesh. It is open to the Government of India to nominate candidates within the State of Andhra pradesh also. R.4 of the Admission Rules does not lend support to the plea of the learned Government Pleader that the 12 seats reserved for the candidates nominated by the Government of India are only in respect of candidates outside the State of Andhra pradesh. Learned Government Pleader then invites attention to the eight additional seats provided for reciprocal admission for candidates from other States and he urges that these eight additional sears could also be considered as having been reserved for candidates outside the State. The argument is too desperate. These eight seats are in addition to the 920 seats and the admission to the eight additional seats is only on a reciprocal basis, that is to say, if eight candidates from Andhra Pradesh could be admitted into medical Colleges outside the State of Andhra pradesh on reciprocal basis, candidates to that extent belonging to other States can be admitted into the Medical College in the state of Andhra Pradesh. This has nothing to do with the reservation out of 920 seats in favour of candidates outside the State. It is not possible to accept the learned Government Pleader's plea that the eight additional seats created for reciprocal admission of candidates from other States have anything to do with the reservation of seats for outside State candidates to reckon the available seats for purposes of paragraph 2(a) of the presidential Urder. Thus, all the contentions of the learned Government Pleader fail.

8. It is however necessary to examine the tenability of the contention urged by Sri Gururaja Rao that the reservation of seats against the fifteen per cent unreserved quota in respect of the four specific categories under R, 7(9) of the Admission Rules is hit by Art. 14 of the Constitution. It is well to note certain basic principles concerning the matter regarding reservations on a wholesale basis for candidates having residential qualification of any particular State. Reference may be made to he decision of the Supreme Court in Jagdishasran v. Union of India : [1980]2SCR831 . the following observations in the Supreme Court judgment offer useful guidance.

'If equality of opportunity for very person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country's development kin the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce. If the best potential in these fields is cold -garbed as reservations, the victims in the long run, may be the people themselves. Of-course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless.'

The judgment proceeds (Paragraph 49, pp. 834-835)

'We recognise that institution - wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to. But even such rules, until revised by competent authority or struck down judicially, will rule the roost. That is why we have to concede that until the signpost of 'no admission for outsiders' is removed from other universities and some fair percentage of seats in other universities is left for open competition the Delhi students cannot be made martyrs of the Constitution.

Reference to the latest decision of the Supreme Court in Pradeep Jain v. Union of India : (1984)IILLJ481SC may now be made. The question regarding admission to medical colleges in the country and the scheme of reservations has been considered at great length by the Supreme Court. The discussion contained in paragraphs 10, 13, 18, 20 and 21 has been succinctly brought out in Head-note (c) at page 1421 of the report. It is enough if this head -note is extracted:

'Anyone anywhere, humble or high, agrestic or urban man or woman, whatever be his language or religion, place of birth or residence, is entitled to be afforded equal chance for admission to any secular educational course for cultural growth, training facility specialty or employment. It would run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State-A, which ordinarily in the commonality of cases would be the result of his birth in a place situate within that State, should have opportunity for education or advancement which is denied to another citizen because he happens to be resident in State-B. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore, always be to select the best and mist meritorious students for admission to technical institutions and medical colleges, by providing equal opportunity to all citizens in the country and no citizen can legitimately without serious detriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set up. However, departure may justifiably be made from the principle of selection based on merit. The concept of equality under the Constitution is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination. In hierarchical society with an indelible feudal stamp and incurable actual inequality it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground that every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abiliteis. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it. Equality in law must ultimately find its raison d'etre in be facto equality. The State must, therefore, resort to compensatory State must, therefore, resort to compensatory State action for the purpose of making people who are factually unequal in their wealth, education or social environment equal in specified areas. The scheme of admission to medical colleges may, therefore depart from the principle of selection based on merit, where it is necessary to do so for the purpose of bringing about real equality of opportunity, between those who are unequals. Thus a certain percentage of reservation on the basis of residence requirement may legitimately be made in order to equalise opportunities for medical admission on the broader basis and to bring about real and not formal, actual and not merely legal, equality. The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or pre-medical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in the State and for this purpose, there should not be distinction between schools affiliated to State Board and schools affiliated to the Central Board of Secondary Education. However, such reservation should in no event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made. Accordingly, wholesale reservation made by some of the State Governments on the basis of 'domicile' or residence requirement within the State or on the basis of institutional preference of students who have passed the qualifying examination held by the University or the State excluding all students not satisfying these requirements, regardless of merit is unconstitutional and void as being in violation of Art. 14 of the Constitution. This also applies to B.D.S. Course.

The above observations provide a complete answer to the question regarding the validity of the reservation against the fifteen per cent unreserved quota to candidates fulfilling the residential qualification in the State of Andhra Pradesh. Because of the overriding effect of Art. 371-D read with the Presidential Order, the outer limit of reservations on the basis of residence requirement to the extent of eighty five per cent cannot be called question. Different principles should however govern the consideration regarding the reservation against the fifteen per cent unreserved quota. By the reservation of the seats against the fifteen per cent unreserved quota in respect of the categories specified in R.7 (9) of the Admission Rules in favour of the candidates fulfilling only the residential qualification in the State of Andhra pradesh, it turns out that a wholesale reservation of 100% is made entirely on the basis of residence requirement. In order to fall in line and to be in accord with the principles set out by the Supreme Court in the judgment referred to above, it is necessary that the seats against the balance of fifteen per cent unreserved quota should be thrown open for admission to all candidates irrespective of the requirement of residence in the State of Andhra pradesh and no rule can be framed to act as a barrier against consideration of candidates outside the State of Andhra Pradesh for admission against the fifteen per cent unreserved quota. Any such rule would offend the wholesome principle set out by the Supreme Court in he judgment above referred.

9. I must also observe that admission of candidates belonging to the other States with brilliant academic record securing merit distinctions into the Medical Colleges of the State of Andhra Pradesh against a small moiety of the seats will have the salutary effect of candidates belonging to this State establishing comraderie with their counterparts in other States which contributes towards national integration with a happy blending of civilisation relating to different regious of the country and develops a feeling of oneness in the impressionable minds of our brilliant boys and girls. It also adds to the secular character of our educational institutions which can claim with legitimate pride that the best of the talent produced by these institutions lay not merely within the narrow regional limits of this State but is spread far and wide throughout the country. This, in my opinion is basically the idea and philosophy behind the removal of the signpost of 'no admission for outsides'.

10. I am, therefore, clearly of the view that the reservation of the balance of fifteen per cent of the available seats in respect of the four categories of candidates specified in R.7 (9) of the Admission Rules is unconstitutional and void being violtive of Art. 14 of the Constitution. Admissions against the unreserved quota of fifteen per cent under R.7 (9) of the Admission Rules should be thrown open to all candidates in the country without reservation on grounds of residence in the State of Andhra Pradesh.

11. A rule shall accordingly issue striking down R.7 (9) of the Andhra Pradesh Regulation of Admission of Students into Medical Colleges/Govt. Dental College Rules 1983 as unconstitutional and void being violative of Art. 14 of the Constitution.

12. The petitioner is entitled to consideration for admission into the First Year M.B.B.S. course for the year 1984-85 against the fifteen per cent unreserved quota. Pursuant to the interim orders of this court, the petitioner has been allowed to sit for the Entrance Examination. At the moment, under the orders of this court in a different connection, declaration of results of the Entrance Examination held in Aug. 1984 is withheld. If the declaration of results is ordered by this court, then the respondent shall declare the result of the petition in the Entrance Examination along with other candidates who had appeared for the examination. The selection of the petitioner for admission into the First M.B.B.S. Course shall depend upon his passing the Entrance Examination and the merit rank obtained by him in the entrance Examination. The writ petition is allowed. In the circumstances of the case, the parties shall bear their own costs. Advocate's fee Rs.500/-.

13. Petition allowed.


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