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P. Padmanabha Reddy and anr. Vs. State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 11630 of 1983
Judge
Reported inAIR1984AP129
ActsConstitution of India - Article 371-D; Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974; Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 - Sections 15(1); Post Graduate Medical Courses Rules - Rule 4(7)
AppellantP. Padmanabha Reddy and anr.
RespondentState of Andhra Pradesh and anr.
Appellant AdvocateH.S. Gururaja Rao, Adv.
Respondent AdvocateGovt. Pleader for Medical and Health
Excerpt:
.....rules - writ petition relates to method of implementation of rule for reservation in favour of local candidates in matter of admission to post graduate medical courses - clause (1) of article 371-a empowers president to provide by order for equitable opportunities and facilities for people belonging to different parts of state in matter of employment and education - in pursuance of article 371-d president issued order of 1974 - paragraph 8 of order of 1974 says that president may require state government to issue appropriate directions for purpose of giving effect to presidential order - he shall also ensure implementation - in gsr 317 (e) president required government to issue appropriate directions for purpose of giving effect to presidential order - in gop no. 646 government..........this writ petition relates to the method of implementation of the rule fo reservation in favour of local candidates, in the matter of admission to post-graduate medical courses. since the said rule of reservation is made in several other courses of study as well, the issue has acquired certain general importance.2. clause (1) of art. 371-d of the constitution 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 fo public employment and education, having regard to the requirements of the state, as a whole. sub-clause (b) of clause (2) says that, the president may, while issuing an order under clause (1), specify any part or parts of the state which shall be regarded as the 'local.....
Judgment:
ORDER

1. The controversy raised in this writ petition relates to the method of implementation of the rule fo reservation in favour of local candidates, in the matter of admission to Post-Graduate Medical Courses. Since the said rule of reservation is made in several other courses of study as well, the issue has acquired certain general importance.

2. Clause (1) of Art. 371-D of the Constitution 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 fo public employment and education, having regard to the requirements of the State, as a whole. Sub-clause (b) of clause (2) says that, the President may, while issuing an order under clause (1), specify any part or parts of the State which shall be regarded as the 'local area', inter alia, for the purpose of admission to any University within the State, or to any other educational institution which is subject to the control of the State Government, while sub-clause (c) empowers him to specify the extent to which, the manner in which, and the conditions subject to which preference or reservation shall be given or made, inter alia, in the matter of admission to any such University or institution, in favour of candidates ho have resided or studied for any period specified in the order, in the local area in respect of such University or other institution, as the case may be.

3. In pursuance of clauses (1) and (2) of Art. 371-D, the President made and issued the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974, which came into forece with effect from July 1, 1974. Paragraph 2 of this order defines the several expressions, including 'local area', 'local candidate' 'State-wide University'. Paragraph 3 specifies three local-areas into which the entire State is divided. Paragraph 4 specifies the conditions which must be satisfied before one can be treated as a local candidate, paragraph 5 provides for reservation in favour of local candidates in non-State-wide Universities and Educational Institutions. (The State-wide institutions are mentioned in the Schedule to the Order, and the Medical Colleges in the State are not among those notified the State are not among those notified in the Schedule). According to Paragraph 5 (1) 'admission to eighty-five per cent 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 State-wide 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.'

4. It is not necessary to notice sub-paragraph (2) of Paragraph 5 for the purpose of this writ petition. Paragraph 6 deals with reservation in State-wide Universities and State-wide educational institutions and, therefore, need not be considered here.

5. Paragraph 8 is relevant to the present purpose. It says that, the President may require the State Government to issue appropriate directions for the purpose of giving effect to the Presidential Order, and shall also ensure that they are implemented. It may be set out in full:-

'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-paragraphs (1) or for satisfying itself that any directions issued ect notwithstanding anything, contained in any statute, Ordinance, Rule, Regulation, or other Order (whether made before or after the commencement of this Order) in respect of admissions to any University or to any other educational institution subject to the control of the State Government.'

6. In G. S. R. 317 (E), which has been re-published in G.O.Ms. No. 486, General Administration (S.P.F.B.) dated 16th July, 1974, the President required the Government of Andhra Pradesh to issue appropriate directions for the purpose of giving effect to the Presidential Order. It reads thus:-

'G. S. R. 317 (E): In pursuance of Paragraph 8 of the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974, the President hereby requires the Government of Andhra Pradesh to issue such directions as may be necessary or expedient for the purpose of giving effect to the said order to any University or to any other educational institution subject to the control of that Government.'

7. In G. O. P. No. 646, dated 10-7-1979, the Government of Andhra Pradesh issued, in supersession of all previous orders on the subject, a consolidated, single self-contained order, as required by G. S. R. 317 (E). Though in the body of the order it is not recited that it has been issued as required by the President in G. S. R. 317 (E) in pursuance of Paragraph 8 of the Presidential Order, it is clear from the several recitals made therein, as also the Abstract found printed at the top of the order that it is one issued in pursuance of paragraph 8 of the Presidential Order, and as required by the President. The Abstract reads as follows:-

'Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 - Consolidated self-contained and comprehensive instructions under the Order - Issued'.

The order refers extensively to the Presidential Order, and to the several provisions thereof, and then says:

'10. The Government have carefully considered the manner of implementation of reservation in favour of local candidates provided in the Presidential Order taking into account the provisions made in respect of reservation in favour of Scheduled Castes, Scheduled Tribes, Backward Classes, Women, etc., in the State and have directed that the procedure set out in the two annexures should be folowed in the implementation of the reservation in favour of local candidates provided under the Order. Annexure-III to this Government Order will regulate admission to non State-wide Universities and non-State-wide educational institutions subject to the control of the State Government...'.

8. It is thus clear that, even though it is not expressly recited as such, the instructions of the Government must be related to, and must be held referable to the power and the obligation, conferred and created upon the State Government by the President's Order contained in G.S.R. 317 (E), issued in pursuance of Paragraph 8 of the Presidential Order. That this is a well recognized rule of interpretation requires no emphasis at my hands.

9. annexure-III carries a long heading, which runs thus:-

'Procedure for implementation of the reservation in favour of local candidates provided under the Andhra Pradesh Educational Insitutions (Regulation of Admissions) Order, 1974 in respect of non-State-wide Universities and other non-State-wide educational institutions (which are subject to the control of the State Government)'.

Paragraphs 1 and 2 in the Annexure say that, the number of 'available seats' in the course of study shall first be computed by deducting from the total number of seats, the number of seats reserved for candidates from outside the State and that, 85% of such 'available seats' shall be reserved in favour of local candidates. Paragraphs 3, 4 and 5, which have a crucial significance for the present controversy, read thus:-

'3. From amongst all eligible applicants, whether such applicants are local candidates or not, a provisional list of admission to fill all the available seats shall be drawn up. This provisional list shall be prepared on the basis of the relative merits of all eligible applicants and the reservations in favour of scheduled castes, scheduled tribes, backward classes, women etc., as provided under the relevant rules of admission. The candidates included in the provisional admission list shall be arranged in order of merit, or where the rules of admission provide for their arrangement in any other order, in the order so provided.

4. The provisional admission list shall be scrutinised to ascertain the number of local candidates finding a place in that list. If the number of local candidates finding a place in the provisional admission list equals or exceeds the number of seats reserved in favour of local candidates, such provisional admission list shall be deemed to be the final admission list.

5. If, however, on the scrutiny referred in para 4, it is found that the number of local candidates finding a place in the said provisional admission list falls short of the number of seats reserved in favour of local candidates, the local candidates not included in the provisional admission list shall be arranged in order of merit in a separate list referred to as a Reminder List. Thereafter, the candidates other than local candidates (referred to 'non-local' candidates) finding a place in the provisional admission list shall be successively eliminated in reserve order from the bottom of such list and replaced by local candidates selected in order of merit from the Reminder List, so however, that the provisions in the rules of admission for reservation in favour of scheduled castes, scheduled tribes, backward classes, women, etc., are observed to the extent that they are not inconsistent with the provisions of the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974. This process of successive elimination of non-local candidates and their replacement by local candidates shall be continued until the number of local candidates in the provisional admission list equals the number of seats reserved for such candidates. At that stage, the provisional admission list so modified shall be deemed to be the final admission list.'

Then follow four illustrations, set out for the purpose of facilitating a clear understanding and application of paragraphs 2 to 4. According to this procedure, what must happen si that, first a provisional admission list shall be prepared, having due regard to the reservations in favour of scheduled castes, scheduled tribes, backward classes, women, etc. While preparing this list, the question of local or non-local should not be kept in mind. But, after the admission list is so prepared, the authorities must verify whether, at least 85% among the admitted candidates, are local candidates, or not. If the local candidates in the admission list are 85% or more, no further question arises, but, if the number of local candidates is less than 85%, the non-local candidates is less than 85%, the non-local candidates at the bottom of the admission list should be eliminated, so as to make way for the local candidates to satisfy the 85% reservation in favour of local candidates. The learned Government Pleader, appearing for the respondents, syas that this was the rule scrupulously followed and observed over the last several years, and proposed to be followed and observed even for the admissions now in question.

10. Mr. H. S. Gururaja Rao, the learned counsel for the petitioners, however, based his contentions wholly upon the Rules of Admission to Post-Graduate Courses, contained in G. O. Ms. No. 549, Medical and Health (E2) Department, dated 6-9-1983, made under the rule-making power conferred upon the Government by Section 15 (1) of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983. Indeed, I am of the opinion that the exclusive reliance upon the said Admission Rules, and the failure to take notice of the instructions issued by the State Government in G. O. P. No. 646 aforesaid, is responsible for the contentions advanced by the learned counsel for the petitioners, before me. Inasmuch as Mr. H. S. Gururaja Rao contended that the Rules of Admission being statutory must be followed, and must prevail over the 'mere administrative instruction' in the words of the learned counsel contained in G. O. P. No. 646, it is necessary to notice the said Rules, and the mutual operation and inter-action of these Admission Rules, and the Presidential Order and the instructions of the State Government issued in pursuance thereof.

11. The Andhra Pradesh Educational Insitutions (Regulations and Admission and Prohibition of Capitation Fee) Act, 1983, being Act No. 5 of 1983, was made to provide for regulation of admissions into educational institutions, and to prohibit the collection of capitation fee in the State of Andhra Pradesh. It came into force with effect from January 30, 1983. Section 3 of this Act provides for regulation of admission into educational institutions. It reads as follows:

'3(1). Subject to such rules as may be made in this 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:

Provided that admission into Medical and Engineering Colleges shall be made only on the basis of the ranking assigned in the common entrance test conducted as aforesaid. (2) The admission into educational institutions under sub-section (1) of shall be subject to such rules as may be made by the Government in regard to reservation of seats to the members belonging to Scheduled Castes, Scheduled Tribes, Backward Classes and the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974'.

Section 12 gives an overriding effect to this Act, in the following words:-

'12. Act to override other laws. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.'

Section 15 confers the rule-making power upon the Government to carry out all or any of the purposes of the Act.

12. The Rules regulating the admission to Post-Graduate Medical Courses contained in G.O.Ms. No. 549, dated 6-9-1983, have been made under Section 15(1), read with Section 3 of the Andhra Pradesh Act No. 5 of 1983, Rule 3 provides for special reservation in favour of scheduled castes, scheduled tribes, backward classes, as also a reservation in favour of inservice candidates. Rule 4 provides for reservation in favour of local candidates. Sub-rule (1) says:

'4 (1) Admissions to 85% of the seats shall be reserved in favour of the local candidaes in relation to the local area in respect of the Educational Institution as specified in this Rule and as provided in Andhra Pradesh Educational Insitutions (Regulation of Admission) Order, 1974, as amended.'

Sub-Rule (2) defines the three local areas, while sub-rule (3) defines the expression 'local candidates'. Sub-rules (4), (5) and (6) contain certain further instructions in the matter of implementation of this Rule, which it is not necessary to notice here. The relevant provision is the one contained in sub-rule (7) of Rule 4, upon which Mr. Gururaja Rao places substantial reliance. It reads:-

'4 (7): The following categories are eligible to apply for admission to the remaining 15% of unreserved seats:

(i) All candidates defined under sub-rule (3) of Rule 4..............'

(Clauses (ii) to (vi) are omitted as unnecessary. It is sufficient to notice that, according to these clauses, certain candidates who have either resided in the State for the specified period, or whose parents or spouses, as the case may be, are employed in the State, are made eligible).

Rule 8 provides for the Entrance Test, and Rule 9 prescribes the basis and method of selection. Sub-rules (1) and (3) of Rule 9 alone are relevant. They provide that selection will be made by the Selection Committee constituted by the Government; that, the Selection Committee shall cause a 'Master Merit List' to be prepared for various categories, after completion of valuation of Entrance Test papers and that 'Merit List shall be prepared on the basis of marks obtained in the Entrance Test subject to reservations mentioned in Rule 4 and as per the instructions contained in G.O.Ms. No. 996, Employment and Social Welfare Department, dated 11-11-1975.'

13. In Annexure-II to the Rules, while setting out the total number of seats and the seats allocated to each of the categories, some seats are mentioned in the category 'unreserved'. For example, in M. D. (General Medicine), the total number of seats are shown as 15, out of which 8 are allocated to 'open competition', 4, 2 and 1 reserved in favour of backward classes, scheduled castes, scheduled tribes respectively, and against it is shown that two seats are un-reserved. It may be noticed that the seats allocated to 'OC', 'BC', 'SC' and 'ST' together marks 15 seats, and those two mentioned as 'unreserved seats' are not something in the nature of a separate reservation. The learned Government Pleader explains that it is only mentioned by way of information and that, by so mentioning, it was not intended to create any reservation in favour of non-local candidates.

14. The contention of Mr. Gururaja Rao is that, according to Rule 4 (7), the local candidates are also eligible to apply for admission to the 15% unreserved seats, besides being eligible for admission against the seats, reserved for local candidates. He contends that, merely because a reservation is made in favour of local candidates, they are not ineligible for competing for, or claiming the 15% un-reserved seats. Learned counsel reiterates the well-accepted principle that a reservation is generally treated as the minimum, but not the maximum. According to the learned counsel, the following procedure should be followed in the matter of admitting the students; first, a Master Merit List should be prepared, and in case the seats are 100, the first 15 out of the Master Merit List should be given admission in the first instance without reference to the question whether they are local, or non-local. If any non-local candidates can get admission among this 15, well and good. But, thereafter, no non-local candidates can get any admission because, according to the learned counsel, all the remaining 85 seats are reserved only for local candidates. Learned counsel, of course, does not dispute that, while following the method suggested by him, due regard can be had to the reservation in favour of scheduled castes, scheduled tribes, backward classes. He submits that the procedure now being followed by the respondents, is contrary to the Rules of Admission and, in particular, Rule 4 (7) and, therefore, the respondents should be directed to follow the method suggested by him, which is the only method, according to the learned counsel, warranted by the Rules.

15. Learned counsel for the petitioners would, probably, have been justified in his submission, if the admissions were to be governed by the Rules of Admission contained in G.O.Ms. No. 549 alone; but that is not the position, since the Presidential Order and the instructions issued by the Government aforesaid, do also govern the admissions. According to clause (10) of Art. 371-D, the provisions of the said 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. Thus, the Presidential Order of 1974 prevails over any other law, to the extent of inconsistency. Indeed, Paragraph 9 expressly gives an overriding effect to the said Order, and in particular, in the matter of admission to any University or any other educational institution subject to the control of the State Government.

16. Now, the Presidential Order defines 'local area' and 'local candidates' and also provides for reservation in favour of local candidates, at the same time providing for the President requiring the State Government to issue appropriate directions for the purpose of giving effect to the Presidential Order. The State Government has, accordingly, issued the directions contained in G.O.P. No. 646, dated 10-7-1979. These instructions not only reiterate the definitions of 'local area' and 'local candidates', but also prescribed the 'manner of implementation of reservation in favour of local candidates provided in the Presidential Order'. Annexure-III to G.O.P. No. 646 expressly sets out the manner of implementation of reservation. It must, therefore, follow that these instructions contained in Annexure-III must prevail, and must be followed even in case the Rules of Admission contained in G.O.Ms. No. 549 sya toh te contrary, in any respect. The fact that the Rules of Admission contained in G.O.Ms. No. 549 are statutory, has no relevance, because these Rules must also be read consistent with and subject to the Presidential Order, and the directions issued by the State Government are within the four-corners of the Presidential Order. In the face of the instructions contained in Annexure-III to G.O.P. No. 646, it is not possible to say that the method suggested by Mr. H. S. Gururaja Rao should be followed in the matter of making selections.

17. Mr. Gururaja Rao sought to contend that the State Government is empowered to give directions only in the matter of implementation of reservation in favour of local candidates, but is not empowered to lay down how the 15% of the un-reserved seats should be filled up and that, therefore, the directions of the State Government in Annexure-III cannot apply in the matter of filling up the said 15% seats. A moment's scrutiny would expose the fallacy in the argument. What the State Government has done is to specify the manner in which the reservation in favour of local candidates should be worked out; the State Government has not purported to lay down the method of filling up the 15% unreserved seats. It is not also suggested that, by following the formula contained in Annexure-III, the rule of reservation in favour of local candidates is in any manner being defeated, or curtailed.

18. I am, therefore, of the opinion that the filling up of the seats reserved for local candidates should be done strictly in accordance with the instructions contained in Annexure-III to G.O.P. No. 646, and not in the manner suggested by the petitioners.

19. The writ petition, accordingly, fails and is dismissed. The admissions shall be finalized without any avoidable delay, and with all reasonable expedition. No costs. Advocate's fee Rs. 250/-.

20. Petition dismissed.


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