Andhra HC (Pre-Telangana)
G. Beena vs A.P. University Of Health Sciences, ... on 5 March, 1990
Equivalent citations: AIR1990AP247, AIR 1990 ANDHRA PRADESH 247
Author: Syed Shah Mohammad Quadri
Bench: Syed Shah Mohammad Quadri
ORDER Syed Shah Mohammad Quadri, J.
1. The short but significant question that arises in these cases is 'whether the Rules of Admission specifying length of service and/or prescribing preference based on length of service for purposes of claiming admission in the quota reserved for children of ex-servicemen, are arbitrary and violative of Art. 14 of the Constitution of India.
2. Writ Petition No. 13250 of 1989 is referred to a Full Bench by one of us (Jagannadha Rao, J.), expressing doubt about the correctness of judgment of a Division Bench of this Court in Writ Appeal No. 825 of 1982 dated 18-11-1982 holding Rule 2(e) of the Rules for Admission to I Year M.B.B.S. Course in Medical Colleges in Andhra Pradesh made in G. O. Ms. No. 490, M & H, dated 21-6-1982 discriminatory and violative of Art. 14 of the Constitution. Thisjudgment was followed by another Division Bench of this Court in allowing Writ Petition No. 6729 of 1982 and holding that order of preference given in Rule 4(iv) of Rules of Admission to Courses of Engineering of the Osmania University is bad. In the writ appeals the correctness of the judgment dated 17-2-1983 in Writ Petition No. 6729 of 1982 is questioned, so they are also referred to the Full Bench. That is how all these cases have come up before us.
3. To appreciate the question presented by these cases, it would be appropriate to notice the relevant facts,
4. W. P. No. 13250 of 1989:- The petitioner herein is a candidate for admission to the 1st year M.B.B.S. Course of 1988-89 in Kakatiya Medical College, Warangal. Having passed the qualifying examination (Intermediate examination), she appeared for E.A.M.C.E.T. examination and secured 728th rank. She claimed benefit of R. 8E of the Rules for Admission to 1st Year MBBS/ BDS/BAMS/BHMS/BUMS Courses for the Academic "Year 1989-90 of the A. P. University of Health Sciences (for short 'M.B.B.S. Admission Rules of the Health University'), which provides reservation for the children of servicemen and ex-servicemen. She submits that her father worked in the regiment of Artillery as Operator (Wireless) for a period of 3 years 10 months and 27 days and that he was discharged on compassionate grounds. Her name was included in the first selection list published on 24-8-1989 for a seat in Kakatiya Medical College, Warangal, which was subject to confirmation by the Director of Andhra Pradesh Sainik Welfare Board. Later, she noticed that her name was not found in the second list of selected candidates published on 18-9-1989 and a candidate who secured 952nd rank was included. She approached this Court for a Writ of Mandamus declaring, the action of the respondent is not in accordance with the M.B.B.S. Admission Rules of the Health University; but later she challenged Rule 8.E(iv) of the M.B.B.S. Admission Rules of the Health University rendering the children of ex-servicemen who were released at their own request and who have not completed 5 years service in the armed forces of Indian Union, ineligible for the reserved quota provided for the children of ex-servicemen, as violative of Art. 14 of the Constitution of India.
5. Writ Appeals Nos. 1797 and 1823 of 1989:-- These two writ appeals are filed by the Registrar of Osrnania University and the Convener, E.A.M.C.E.T.-89, Osmania University, against the judgments of the learned single Judge allowing the writ petitions filed by the petitioners therein. The petitioners contended that categorisation of the children of ex-servicemen into two categories --category (iv) for the children of ex-servicemen who have put in 18 years or more of service and category (v) for children of ex-servicemen who have put in less than 18 years of service -- in R. V (6) of the Rules of Admission to Courses of Engineering of the Osmania ,, University (for short, 'Engineering Admission Rules of the Osmania University'), is unrealistic, irrational and unconnected with the object sought to be fulfilled and therefore violative of Art. 14 of the Constitution. The writ petitions were allowed following the judgment of a Division Bench of this Court dated 17-2-1983 in W. P. No. 6729 of 1982 and the appellants were directed to consider the eligibility of the petitioners to seats in the 1st year B. E. course in the quota reserved for the children of ex-servicemen, irrespective of the length of service put in by the father of the petitioners.
6. Sri C. P. Sarathi, the learned counsel appearing for the petitioner in the writ petition, contended that having provided reservation for the children of ex-servicemen in Rule 8.E of the M.B.B.S. Admission Rules of the Health University, the term 'ex-servicemen' is so defined in clause (4) of the said Rule, inter alia, prescribing a period of five years service before being released at the request of the servicemen, that it takes away the benefit of the reservation, so the condition of 5 years service is illegal and arbitrary. So also, the contention of Sri T. Veerabhadraiah. is that the classification of the candidates seeking admission in the reserved quota meant for ex-servicemen, into the children of ex-servicemen who have put in service of 18 years or more, and the children of other ex-servicemen who have put in less than 18 years of service in Rule V(6)(iv) and (v) of the Engineering Admission Rules of the Osmania University, is illegal and arbitrary and there is no rational basis for fixing 18 years of service as eligibility criteria.
7. The learned counsel for the Univer sity as well as the learned Government Pleader appearing for the Director of Sainik Welfare Board support the correctness of the Rules.
8. It may be useful to extract the Rules in question here.
"A. P. UNIVERSITY OF HEALTH SCIENCES Vijayawada-520005, Andhra Pradesh, India.
Rules for admission to 1st year MBBS/ BDS/ BAMS/BHMS/BUMS Courses for the Academic Year 1989-90.
xxxx xxxx xxxx xxxx 8. Reservation of Seats: A. to D. xxxx xxxx xxxx E. Reservation for the children of Service men and ex-servicemen:
Out of the available seats for admission by the University of Health Sciences 1% of the seats shall be reserved in Statewide Institutions and in each local area for non-Statewide institutions in respect of MBBS and BDS Courses ..... for the children of Ex-servicemen and Servicemen belonging to the State of Andhra Pradesh including those serving in other States, and persons who are posted and stationed in the State of Andhra Pradesh on the date of submission of application.
(1) Ex-servicemen means a person who has served in any rank (whether combatant or as non-combatant) in the Armed Forces of the Indian Union, including the Armed Forces of the former Indian States, but excluding the Assam Rifles, Defence Security Corps, General Reserve Engineering Force, Lok Sahayak Sena and Territorial Army, for a continuous period of not less than six months after attestation, and (2) has been released otherwise than at his own request by way of dismissal or discharge on account of misconduct or inefficiency or has been transferred to the reserve pending such release, or (3) has to serve for not more than six months for completing the period of service requisite for becoming entitled to be released or transferred to the reserve as aforesaid, or (4) has been released at his own request after completing five years service in the Armed Forces of the Indian Union.
xxxx xxxx xxxx xxxx."
9. From a perusal of the Rule extracted above, it is seen that the case of the candidate for admission into 1st year M.B.B.S. course can be considered under the reserved quota for ex-servicemen, provided:
(1) the parent of the candidate has worked in any rank, whether combatant or non-combatant, in the Armed Forces of Indian Union, including the Armed Forces of the former Indian States, but excluding the Assam Rifles, Defence Security Corps, General Reserve Engineering Force, Lok Sahayak Sena and Territorial Army for a continuous period of six months after attestation, and (2) he has been released (a) otherwise than at his own request or (b) otherwise than by way of dismissal or discharge on account of misconduct or inefficiency, or (c) has been transferred to the reserve pending such release, or (d) he is released at his own request after completing 5 years of service in the Armed Forces of the Indian Union.
10. A person who has to serve for not more than six months for completing the period of service requisite for becoming entitled to be released or transferred to the reserve, is also treated as a person released otherwise than at his own request.
11. Therefore, it follows that where a person has been released at his own request before completing the period of five years, he cannot be treated as an ex-serviceman as he does not fulfil one of the conditions mentioned in the definition and consequently children of such a person cannot be considered for admission in the quota reserved for ex-servicemen.
12. Now we shall read Rule V(6) of the Engineering Admission Rules of the Osmania University.
"OSMANIA UNIVERSITY.
Extract of Rules of Admission.
V. Other Reservations.
xxxx xxxx xxxx xxxx
6. Children of Ex-Service men Armed Personnel. Defence Personnel. Border Security Force, and C.R.P.F. Personnel (Ex-Ser):
4% of the seats in each course of study mentioned in para I are reserved for children of ex-servicemen. Armed Personnel. Defence Personnel. Border Security Force and Central Reserve Police Force Personnel in service. The condition of domicile is waived for this category. The order of preference in regard to the candidates under this item shall be as follows:--
(i) to (iii) xxx xxx xxx
(iv) Children of Ex-servicemen. Armed Personnel, Border Security Force and C.R.P.F. Personnel who have put in 18 years or more service:
(v) Children of Defence Personnel who have been killed (or) have become disabled and children of all other Ex-servicemen."
13. It is seen that for purposes of admission to Engineering course; in the reserved 'quota, the categories have been specified in order of preference. In this case we are not concerned with the preference mentioned in clauses (i) to (iii) of Rule 6. Clause (iv) of Rule 6 provides preference to children of Ex-Servicemen. Armed Personnel, Defence Personnel. Border Security Force, and C.R..P.F. Personnel who have put in service of 18 years or more, over the children of Defence Personnel who have been killed or have been disabled and children of all other ex-servicemen who are placed in category (v). In other words, children of ex-servicemen who have put in service of 18 years or more have preference in the matters of admission over the children of ex-servicemen who have put in less than 18 years of service.
14. Now reverting to the main contention of the learned counsel for the students that prescribing a period of five years service by the ex-servicemen, in the M.B.B S. Admission Rules of the Health University, and 18 years service by an ex serviceman for classifying them in category (iv) in the Engineering Admission Rules of the Osmania University. is arbitrary and illegal. This contention derives support from the judgment of a Division Bench of this Court in Writ Appeal Nos. 784, 82.823 and barch dated 18-1-1982. in that case the Note appended to Rule 2(e) of the Rules for admission to first year M.B.P.S. course in Medical Colleges in Andhra Pradesh State made in G.O.Ms. No. 490, M & H. dated 21-6-1582, was assailed as discriminatory and violative of Art. 14 of the Constitution. A learned single Judge upheld the contention of the writ petitioners therein. On appeal, the Division Bench confirmed the said view. The reasoning of the Bench is that "under the modern warfare every person in the armed force is vulnerable to attack in diverse ways. A person may be fatally wounded or totally immobilised even within a year of his entry in the service of the armed forces. "Therefore, the Note appended to the Rule restricting the benefit to the children of the ex-servicemen who had been in continuous service for a period of five years was held to be arbitrary and violative of Art. 14 of the Constitution. This judgment was followed by another Division Bench of this Court in Writ Petition No. 6729 of 1982. In that case the petitioner applied for admission to the 1st year; B. F.. course under the quota (4% of the seats.) reserved for children of ex-servicemen and armed personnel. Her. complaint was that she secured higher rank than those admitted in the reserved quota and that she was denied the sent on the ground that he, father had not put in 18 years of service in the Army. She, therefore, challenged the order of preference prescribed in the Rules of admission. for the children of ex-servicemen as violative of Art 14 of the Constitution, Under Rule 4. Clause (iv) of the Rule: of Admission relevant to that year, children of ex-servicemen and Armed Per-sonnel who have put in 18 years and more service were given preference over the child-ren of ex-servicemen who had put in less than 18 year; of service Observing that the issue raised in that writ petition, viz. that the order of' preference prescribed in Rule 4 between ex-servicemen who had put in service of 18 years or more and those who had put in service of less than 18 year, is covered by the judgment dated 18-11-198? in Writ Appeal No. 784 of 1982 and batch, the Division Bench allowed the writ petition on 17-2-1983 and issued the direction to consider the eligibility of the petitioner to a seat in the B.E. course out of the 4% of seats reserved for the ex-servicemen irrespective of the length of service put in by the father of the petitioner in the Army.
15. As stated above, this decision is followed by the learned single Judge while allowing the writ petitions out of which the above writ appeals arise.
16. With great respect to the learned Judges of the Division Benches we are unable to agree with their view. The reservation made in favour of the children of ex-servicemen is not one of the categories mentioned in Art. 15(4) of the Constitution. But such reservations have, however, been upheld by the courts on the ground of reasonable classification. The rule-making authority, in our view, while prescribing the reservation, is entitled to prescribe such conditions for availing the reservation as it considers just and proper. The candidate must take the benefit conferred by the Rule along with conditions imposed thereunder or leave it. He cannot claim the benefit of the Rule without the conditions unless the conditions are fanciful and arbitrary. What length of service should be prescribed for availing the benefit of the reservation is for the rule-making authority. For any basis adopted by the rule-making authorities, two views may be possible. As we are not sitting in appeal, we cannot substitute our view for the view of the rule-making authority. While execising power of judicial review of administrative action, the Court is not an appellate authority. (Vide Asif Hameed v. State of Jammu & Kashmir, ). Our jurisdiction is limited and we can only interfere where the authority has adopted a classification which is unreasonable and where the classification has no nexus to the object sought to be achieved, as the Court's duty lies in preventing arbitrariness and denial of equal opportunity (Vide observation of Chinnappa Reddy, J. in Javid Rasool Bhat v. State of Jammu & Kashmir. ).
17. We are informed by the learned government Pleader that army personnel are not released within six, months from the date of attestation, -- administration of oath of office at the time of enrolment as a member of the army -- and they will be entitled to monetary or other benefits under the Rules if they complete 5 years service after attestation.
They are released on medical grounds or on demobilisation of the Army within the said period. If they are released or discharged on their request within the said period they are not entitled to any monetary or other benefits under the Rules. For ensuring that the benefits of policy of reservation reach the deserving persons, definition of ''ex-service men" was formulated in 1966. Later, the President of India made the Rules for regulating the recruitment of ex-servicemen in Central Civil Services arid posts under Proviso to Art. 309 of the Constitution, Rule 2(c) of the said Rules; define "ex-
servicemen" as follows :--
"2.(c) "Ex-servicemen" means a person, who has served in any rank whether as a combatant or as non-combatant in the, Armed Forces of the Union, including the Armed Forces of the former Indian States, but excluding the Assam Rifles, Defence Security Corps, General Reserve Engineering Force; Lok Sahayak Sena and Territorial Army, for a continuous period of not less than six months after attestation, and
(i) has been released, otherwise than at his own request or by way of dismissal or discharge on account of misconduct o'r inefficiency, or has been transferred to the reserve pending such release, or
(ii) has to serve for not more than six months for completing the period of service, requisite for becoming entitled to be released or transferred to the reserve as aforesaid, or
(iii) has been released at his own request, after completing five years service in the. Armed Forces of the Union."
This definition of the term is given in Notification No. 39016/ 10/79-Estt(C), dated' 15-12-1979 issued by the Department of Personnel and Administrative Reforms, Ministry of Home Affairs', Government of India. The definition of ex-servicemen con-tained in Rule 8-E of the M.B.B.S. Admission Rules of the Health University is identical with the definition of the term in the Rales made by the President contained in the said Notification No. 39016/10/79-Estt (C), dated 15-12-79. The period of five years prescribed in the impugned Rules is the minimum period which an army personnel is expected to serve for obtaining benefits under the conditions of service. The classification of ex-servicemen into those who have put in 5 years of service and those who are released, at their request, Without completing 5 years service is; in our view: reasonable classification and has nexus with the object of the Rules, namely, conferring benefit on the children of the ex-service-men. On the ground that inherent risk is involved in the defence service, classification based on the minimum, length of service, cannot be said to be arbitrary. For all the.se reasons, the definition of ex-servicemen contained in the impugned Rule 8-E(4) cannot be held to be arbitrary and violative of Art; 14 of the Constitution.
18. To ascertain the basis of the impugned rule of the Engineering Admission Rules of the Osmania University, we, after hearing the learned counsel for the appellants for some time, directed them to file a counter-affidavit. A common counter-affidavit is filed by the Osmania University in the writ appeals. It is stated that prior to 1968-69 no reservation was made in favour of the children of ex-servicemen and armed personnel and for the first time in 1968-69 1% of the seats were reserved for the children of ex-servicemen and armed personnel in the various courses in the University including B.E./B.Tech. courses. The order of preference in those rules was as follows:--
(i) Children of Ex-servicemen and Armed Personnel killed in action.
(ii) Children of Ex-servicemen and Armed Personnel disabled in action and are in receipt of disability pension.
(iii) Children of Ex-servicemen and Armed Personnel who have received gallantry awards.
(iv) Children of Ex-servicemen and Armed Personnel who have put in long service, who are residing in Telangana area (or Andhra area as the case may be).
New Rules were framed for admission into B.E./B.Tech. courses which were approved by the Academic Council on 27th March, 1978. In those Rules 4% of the seats were reserved for the children of ex-servicemen. In the year 1977 Government have issued G.O.Ms. No. 848 dated 15-8-1977 prescribing Rules of Admission into Diploma Courses in the Government Polytechnic Colleges of Andhra Pradesh State. In those rules 'long service by Army personnel' was substituted by 'service of 18 years or more' for purposes of Category (iv). Based on these orders of the Government, the University also prescribed service of 18 years or more instead of long service. It is further stated that the Director, Rajya Sainik Welfare Board addressed a letter to the State Government on 29-10-1979 stating that there are no uniform rules for selection of candidates for admission into Engineering Colleges in the Universities of this State for the children of ex-servicemen, and requested the Government to ensure that the categories mentioned therein are followed by all the Universities for admission of children of ex-servicemen in the Engineering Collleges of various Universities. That letter was forwarded to the Universities. The Board has suggested one more category as category (v), viz., "children of all other ex-servicemen". The Convener has recommended the inclusion of that category and the Vice-Chancellor approved the same in anticipation of the approval of the Standing Committee of the Academic Council. Subsequently the Standing Committee ratified the action taken by the Vice-Chancellor in including category (v) in the Rules on 4-2-1983, which was approved by the Academic Council in its 68th meeting on 31-3-1983. In the 99th meeting of the Standing Committee two more categories have been added --Categories (vi) and (vii) -- to the said Rules on 21-3-1984. It is stated that the classification of children of ex-servicemen. who have put in serving of 18 years or more is based on intelligible differentia and has reasonable relation to the object sought to be achieved by the Rules and that it is neither arbitrary nor discrimintory. and therefore it cannot be said to be violative of Art. 14 of the Constitution.
19. Sri T. Veerabhadraiah has contended that prescribing different length of service of ex-servicemen by different Universities in the Rules of admission in the State for purposes of claiming seat in the quota reserved for children of ex-servicemen, is discriminatory. He has also invited our intention to the Rules of the Regional Engineering Colleger to show that length of service of 15 years is prescribed therein. We are afraid we cannot accede to this contention of the learned counsel. Each University is a separate autonomous body. It is not necessary that Rules of Admission relating to the A. P. University of Health Sciences should be the same as the Rules of Admission relating to Osrasnia University or the Regional Engineering Colleges. That by itself, in our view, does not make the Rules of Admissions discriminatory and violative of Art. 14 of the Constitution. While, no one can deny the desirability if having uniform rules of admissions particularly in regard to reservations in all the universities in the State, but for the reason that different Universities have prescribed different rules, we cannot hold that the Rules are discriminatory. We have, therefore, to see whether prescribing a period of service in the Rules for claiming the benefit of reservation is itself arbitrary and violative of Art. 14 of the Constitution. Before proceeding to discuss this aspect, it would be appropriate to refer to the cases cited by the learned counsel fcr the parties.
20. Surendrakumar v. State of Raja-sthan. : A Division Bench of the Rajasthan High Court upheld the reservation provided in the admission rules in favour of the children of defence personnel on the ground of reasonable classification. It futher held that the Government can prescribe conditions for admission into cources.
21. Kaja Sudhir v. Principal. Guntur Medical College. Guntur. : In this case classification of N.C.C. candidates and prescribing preference among them for admission to 1st year M.B.B.S. course was challenged as discriminatory. A Division Bench of our High Court while holding the classification as valid, held thus (Paras 9 and 10):--
"Whether the standard of the total length of training in the N.C.C. both in schools and colleges is taken as the criterion for efficiency or as a qualification for selection, or whether preference is to be given only to the training and certificates obtained in the Senior Division of N.C.C. is a matter which is not within the jurisdiction of this Court. It is a matter entirely for the authority empowered to frame the rules for selection. There is not a rule, the basis of which cannot be disagreed with. But what the Courts have to see is whether in making or framing the rule, the authority concerned has adopted a reasonable classification and has based it on an intelligible differentia which has a reasonable connection with the object sought to be achieved.
xxxx xxxx xxxx xxxx If this is the avowed object, namely to compensate those candidates who have taken part in some of the activities referred to above, then the authority concerned is perfectly justified in giving preference to persons who have taken part in these activities for a longer period than those who have taken part for a comparatively shorter period. There is nothing discriminatory or unintelligible in this classification."
We respectfully agree with the reasoning of the learned Judges, State of Jammu & Kashmir v. Triloki Nath Khosa. : This case deals with classification of employees for purposes of promotion. The employees were classified as degree-holders and diploma-holders. This classification was challenged. The Supreme Court held that the classification is no; unjust or discriminatory. It further held that there is a presumption of constitutionality in favour of the rule, unless the classification is ex facie discriminatory, in which case the burden shifts on the rule-making authority to show that it is not discriminatory.
22. D. S. Nakara v. Union of India, : Great reliance is placed on this case. In this case a date was fixed for purposes of application" of Liberalised Pension Rules to the retired employees. A Constitution Bench of the Supreme Court held that prescribing the date so as to divide the pensioners into two groups had no nexus with the purpose of the Act so it was arbitrary and violative of Art. 14 of the Constitution, and further held, that this part of the scheme being severable, the rest of the scheme could be implemented; and accordingly issued directions to the Government to apply the scheme to all the retired employees irrespective of the date of retirement. This case was distinguished in Dr. (Mrs.) Sushma Sharma v. State of Rajasthan, , in the following words (Para 41):--
" ..... In that case Art. 14 was wholly violated inasmuch as the pension rules being statutory in character, the amended rules, since the specified date, accord differential and discriminatory treatment to equals in the matter of commutation of pension. Pensioners being all equal, no date could be chosen to separate one group getting more benefit than other. If a particular benefit is to be given to all then making a classification between them is discriminatory. Pension was the right of all retired persons. A particular date was chosen by the Government and that date had no nexus with the purpose of the Act i.e.. give relief to them."
In this case the choice of date for purposes of benefit of Section 3 of the Rajasthan Universities Teachers and Officers (Special Conditions of Service) Act was held to be relevant. The petitioners were all temporary lecturers who were appointed on or before 25-6-1975 and who were continuing as such at the commencement of the Ordinance and were to be considered by the University for screening for absorption. Repelling the contention that a teacher who was working a few months before 25-6-1975 would be eligible but a person who had put in continuous service for considerable time but was not working on that day, would be ineligible, it is observed by the Supreme Court that it is well-settled that if a particular period of experience, is fixed for screening or for absorption, it is. within the wisdom of the Legislature and what period would be sufficient for a particular job or a particular employment is not subject to judicial review.
23. In Motor General Traders v. State of Andhra Pradesh, AIR 1984 SC 121, the constitutional validity of Section 32(b) of the A. P. Buildings (Lease, Rent and Eviction) Control Act was questioned as violative of Art. 14 of the Constitution. This was defended inter alia on the ground that the constitutional validity of the Act was upheld by the High Court. Observing that a provision which was valid at the commencement of the Act may by passage of time become invalid, it was held that the impugned provision was violative of Art. 14 of the Constitution as it did not satisfy the true tests of a valid classification and the continuance of that provision on the statute book will imply the creation of the privileged class of landlords without any rational basis as the incentive to build which provided a nexus for reasonable classification of such class of landlords no longer exists by lapse of time in the case of majority of such landlords. In this context the Supreme Court observed thus:
"What was once a non-discriminatory piece of legislation may in course of time become discriminatory and be exposed to asuccessful challenge on the ground that it violated Art. 14 of the Constitution. Thus it cannot be said that if at the time when the Act was enacted S. 32(b) was not unconstitutional, it cannot at any time thereafter be challenged on the ground of unconstitutionality."
Similarly in Rattan Arya v. State of Tamil Nadu, , Section 3(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act was held to he violative of Art. 14 of the Constitution.
24. From the above discussion it follows, that mere prescribing a date or a period is not perse discriminatory if it has a nexus with the object sought to be achieved.
25. It has already been noticed that under the M.B.B.S. Admission Rules of the Healt University, the length of service of 5 years is prescribed as eligibility criteria for being considered in the quota reserved for children of ex-servicemen, whereas in the Rules pre-cribed by the Osmania University for admission to Engineering courses, 18 years length of service is prescribed for giving preference over children of ex-servicemen having less than 18 years of service in the reserved quota. Though apparently prescribing different lengths of service appears to be arbitrary, yet having regard to the scheme of the respective Rules, viz., in the latter case it is a matter of preference, therefore longer period of service, is prescribed for the purpose of classifying the candidates into the 4th preference and the 5th preference whereas in the former case it is total exclusion of the candidate from the benefit of the rule of reservation, so lesser period is fixed, it cannot be said that Rule V(a)(iv), of the Engineering Admission Rules of the Osmania University is arbitrary and violative of Article 14 of the Constitution.
26. Further, in order to find out the reason for prescribing 18 years period in rules of reservation, we sent for the concerned file. The file relating to G. O. Ms. No. 848, Labour, Employment & Technical Education (E) Department dated 5-8-1977 is not made available by the Government in spite of granting considerable time. On a perusal of file produced by the Osmania University, it is noticed that as many educated individuals who joined the Army services sought discharge on completion of five years after which they are entitled to special benefits, the phrase "long service" in category (iv) of the Rules referred to above was defined to mean 18 years or more', and this definition is incorporated by the Osmania University in the Engineering Admission Rules. The period of 18 years is fixed having regard to conditions of service of different categories of Army personnel serving with colour and in reserve. It is brought to our notice that 18 years period has been reduced to 15 years consequent upon the change in the service conditions of the Army personnel and a recommendation has been sent to the Government to amend the Rules by substituting '15 years 'for' 18 years' and the matter is receiving consideration of the State Government and the University. From the file produced it is also seen that in the conference of the Vice-Chancellors of the universities in the State held in March, 1989, the suggestion of the Government for having uniform order of preference, has been agreed to and the Government was requested to issue necessary orders in this regard. Be that as it may, for the afore-mentioned reasons, we are unable to say that the preference incorporated in the Rules either discriminatory or arbitrary.
26A In the cases in question, fathers of the candidates in the writ appeals had put in service of 15 years 30 days, and 15 years 18 days, less than 18 years service, so the petitioners fall under category (v); unless all the candidates of category (iv) are considered, the petitioners cannot be considered for admission to the courses against the reservation for ex-servicemen.
27. It is represented by the learned counsel for the candidates that pursuant to the directions of this Court, the writ petitioners in W. A. Nos. 1797 and 1823 of 1989 have been admitted into the courses. We called upon the Convener to furnish the information. It is stated that there are 138 candidates in category (iv) and 81 candidates in category (v). Under the Rules the petitioners can be classified in category (v) and that they are entitled to get a seat in Mechanical or Production Engineering branches in some private engineering colleges located outside Hyderabad or Civil Engineering branch in any of the private engineering colleges in Andhra Pradesh except C.B.I.T., Hyderabad, and that there are four candidates above Mr. K. V. S. Raju and 30 candidates above Miss. Rajatalatha Manthri in category (v) who have secured higher rank in the EAMCET-89. In so far as K. V. S. Raju is concerned, it appears that he did not take admission in any of the private engineering colleges and was admitted in civil engineering branch in the College of Engineering, Osrnania University under open category and a seat is kept vacant in Electrical branch under ex-servicemen quota as per Court's direction. However, he cancelled his seat and took admission in J.N.T.U. under ex-servicemen quota. Ms. Rajathalatha was provisionally admitted in Production Engineering Branch in C. B. I. T. on 3-10-89. In as much as the admissions have already been finalised on 6-10-1989, i.e., about four months before, we do not consider it just and proper to disturb the admissions already made.
28. Subject to the above, the writ appeals are allowed and the writ petition is dismissed. There shall be no order as to costs. Advocate's fees Rs. 250/- in each.
29. Order accordingly.