Andhra HC (Pre-Telangana)
Dr. B. Vamsi Pavani And Ors. vs Government Of A.P. And Ors. on 9 July, 2004
Equivalent citations: 2004(6)ALD751
JUDGMENT B.S.A. Swamy, J.
1. The subject-matter of these writ petitions relate to admission into Post-Graduate Courses in Dental Sciences.
Writ Petition No. 12486 of 1999:
The complaint of the petitioner in this writ petition is that though she secured highest marks in the common merit list from Andhra University local area for admission to MDS Course, she could not get the admission, while respondent Nos.4 and 5 who secured lesser rank got seats in MDS Course from the local areas of Osmania and Sri Venkateswara University in Dental College, a State wide institution on the basis of class reservation. Hence, she questioned the vires of Rule 4 of the A.P. Regulation of Admission to the MDS Course in the Government Dental College and Hospital, Hyderabad Rules, 1985 (hereinafter referred to as 'Dental Course Rules') providing reservation to the reserved categories speciality-wise on rotation basis by contending that the same is contrary to Full Bench Judgment of this Court reported in Devarakonda Rajesh Babu v. Nizam's Institute of Medical Sciences, (FB).
(1) Writ Petition No.18723 of 1999:
2. The case of the petitioner in this writ petition is that he hails from Warangal and he studied upto VII Class in Kendriya Vidyalaya Fertiliser City, Karimnagar, from 1987 to 1994. In the year 1994 A.P. Public Service Commission conducted common qualifying examination for admission into Rastriya Indian Military College, Dehradun, for Class VIII and the petitioner having got selection joined in the Indian Military College at Dehradun and passed X Class in Science with distinction. Thereafter he studied Intermediate Course in Gowthami Junior College, Gudavalli, Vijayawada (Rural) during the years 1997-99 and he appeared for EAMCET - 1999 examination with Hall Ticket No.2204130 and obtained a rank of 386. He questioned the action of the authorities concerned in denying a seat in Medicine in Osmania University local area on the ground that he has not satisfied the residential qualification prescribed in Rule 8(l)(ii) of G.O. Ms. No. 184, Education (EC-2) Department, dated 20.8.1993, which is nothing but replica of Rule-4 of A.P. Educational Institutions (Regulation of Admissions) Order, 1974 issued by the President of India under Clauses (1) and (2) of Article 371-D of the Constitution of India in respect of State of Andhra Pradesh, hereinafter referred as 'Presidential Order'.
3. The contention of the petitioner in this writ petition is that the local area of a candidate cannot be decided on the ground of his study without reference to his permanent place of his residence and without reference to qualitative as well as quantitative test prescribed to find out the place of residence of an individual. He also contended that the Presidential Order relating to Educational Institutions runs counter to the very objective underlying Article 371-D of the Constitution of India introduced by 32nd Amendment Act, 1973. Finally he sought for issuance of writ of mandamus directing the respondents to consider him as a local candidate of Osmania University local area and allot a seat in MBBS Course for the year 1999-2000.
(2) Writ Petition No.18108 of 1999 :
4. In this case the petitioners two in number hail from Osmania University local area and they were allotted seats in Kumool Medical College as a non-local candidates in MBBS pursuant to the EAMCET examinations held in 1993. Now they filed this writ petition questioning the Regulations relating to admission to Post Graduate Medical Colleges affiliated to NTR University of Health Sciences, A.P. for the academic year 1999-2000, wherein it was specified that the candidates who studied for not less than four consecutive academic years shall be regarded as a local candidate of that local area where the institution was situated, on the basis of which they are likely to be treated as candidates belonging to Sri Venkateswara University, though they hail from Osmania University local area.
Writ Petition No. 1832 of 2000:
5. 36 persons who passed BDS Course filed this writ petition, even before the relevant notification inviting applications for admissions to MDS Course was issued, apprehending that the persons who obtained BDS qualification from outside the State of A.P. will be allowed to appear for the entrance test though they cannot qualify themselves as a local candidate and also in providing class reservation on rotation basis by clubbing all the branches of Dental Course and treating MDS Course for seven years as a unit.
Writ Petition No.24474 of 2000:
6. The case of the petitioner in this writ petition is that though he secured 37th rank in the entrance test for P.G. Dental Courses and though he belongs to B.C. category, he was denied a seat in P.G. Dental Course while Respondent No.3 who obtained BDS degree from Karnataka is permitted to sit for entrance test and he was given a seat in BC-B category in violation of Rule-6 of the Presidential Order, 1974, whereunder the seats in Statewide institutions have to be filled up in the ratio of 42 : 36 : 22 between the local areas of Andhra University, Osmania University and Sri Krishna Devaraya University. The petitioner filed this Writ Petition after the selection to M.D.S. Course is over, while the earlier writ petition was filed before issuance of notification. The grievance of the petitioner is that while the seats in State-wide Universities are to be allotted region-wise the respondent who studied in Karnataka was allotted a seat though he do not satisfy Rule-4 of Presidential Order.
7. During the course of hearing, this Court noticed that certain grey areas are left open on the issues that arise for consideration under Article 371-D of the Constitution of India. Hence, I have formulated the following issues and directed all the Counsel to address arguments on these issues:
1. Article 371-D is intended to remove the regional imbalances. That being the case, whether it is open to the authorities concerned to fix the local area of a particular individual on the basis of his study.
2. Whether regional reservations provided under Article 371-D override the reservations in favour of constitutionally permissible classes under Article 15(4) and Article 16(4) of the Constitution of India on the ground that they are general reservations and those reservations are special reservations.
3. Whether the Health University is justified in conducting separate entrance tests to each of the colleges for admission into Post-Graduate Courses, more so, on the same day and deny the opportunity to the students to compete for non-local seats earmarked in each of the institutions though all the institutions are under the administrative control and supervision of the Health University.
4. While implementating the reservations under Presidential Order, the authorities concerned have to implement reservations in favour of constitutionally permissible classes. Is it open to the authorities concerned to allot a seat reserved for a particular category to open category on the ground that no qualified candidate is available in that particular area though the reservations in favour of constitutionally permissible classes have to be implemented State-wide and whether such an action won't run counter to the reservation policy in favour of these classes.
5. It is brought to the notice of this Court that none of the medical colleges functioning in the State got affiliated to the University of Health Sciences and they are affiliated only to the respective Universities in whose territorial jurisdiction these institutions are located, but at the same time, University of Health Sciences is conferring Bachelor, Post-Graduate and Super Speciality degrees. When no colleges are affiliated to it, the question that arises for consideration would be, whether Health University is empowered to confer degrees or can the University have any control or say in the matter of admissions to Medical Courses.
6. When a particular student's residence is determined on the basis of his study in a particular area for the purpose of education, how his residence will be decided (i.e.,) on the basis of birth or study for purposes of employment.
8. Since the Court is well within its limits to mould the relief in a given circumstances of the case, I requested all the Counsel to address arguments on these issues to put an end to the everlasting controversy as there is no authoritative pronouncement on the issue raised above. Indeed, the Additional Advocate-General as well as other Counsel of eminence consented to address arguments on the questions of law and also the objective underlying under Article 371-D of the Constitution of India.
9. It is reported that the defects pointed out in Issues 3 and 5 were rectified by the Government during the course of hearing. Now the other issues are to be looked into.
10. By the time the arguments were completed, the admission year was over. Hence, I reserved the matters to make a reference on all these issues to a Larger Bench for an authoritative pronouncement. There was some delay in making the referential order. Since the issue is cropping up every year mostly in admission to P.G. Medical Courses, an authoritative pronouncement is still required for the guidance to the implementing agency as well as the subjects. Hence, I propose to make this referential order.
11. It is a known fact that after formation of State of Andhra Pradesh some misunderstandings have been cropped up among the people belonging to Telangana region and Andhra region over the development of Telangana Region and failure to comply with the safeguards given at the time of formation of the State with regard to employment opportunities and educational facilities for the people of Telangana region and the same led to two agitations demanding separate States for Andhra and Telangana region. To find out a satisfactory solution to the problems faced by the people of the State and with a view to achieve fuller emotional integration of the people of Andhra Pradesh, the leaders of both the regions after deliberations, on 21st September, 1973 suggested some measures popularly known as six-point formula indicating uniform approach for promoting accelerated development of the backward areas of the State of Andhra Pradesh so as to secure the balanced development of the State as a whole; (ii) to provide equitable opportunities and facilities for the people belonging to different areas of the State in the matter of education, employment and career prospects in public service. To give effect to this six-point formula, Article 371-D was introduced in the Constitution of India in the year 1972 by 32nd Amendment.
12. I have carefully gone through the various judgments of the Supreme Court on the validity of Article 371-D of the Constitution of India. Their Lordships have taken the view that Article 371-D is intra vires of the Constitution. In P. Sambamurthy v. State of A.P., AIR 1987 SC 663, Dr. C. Surekha v. Union of India, , Dr. Fazal Ghafoor v. Union of India, , S. Prakash Rao v. Commissioner of Commercial Taxes, , B. Sudhator v. Union of India (FB), 1994 (2) An. WR 252, Fazil Gaffor v. Osmania Medical College, . Likewise in B. Ramesh v. University of Health Sciences, Vijayawada, , a Division Bench of this Court upheld the validity of A.P. Educational Institutions Regulation of Admission Order, 1974 on the ground that validity of Article 371-D was upheld in P. Sambamurthy's case (supra). In P. Padmanabha Reddy v. State, AIR 1984 AP 1297 a Single Judge of this Court held that by virtue of non-abstante clause in Clause 10 of Article 371-D the Presidential Order 1974 prevails over any other law to the extent of any inconsistency. But at the same time the Supreme Court in Dr. Sureka's case (supra), referring to the argument of Sri P.A. Chowdary as he then was observed that if the Presidential order is to be given effect in its true spirit, the principle in Dr. Pradeep Jain v. Union of India, , cannot consistently with the Presidential Order be implemented cannot be brushed aside and requires serious consideration and left the matter there, since the petitioner secured admission in one of the Medical Colleges. But their Lordships observed that the scheme in the Presidential Order should be so understood as to permit and to assimilate the Dr. Pradeep Jain's case (supra) principle or should be explained if necessary by appropriate amendment to the Presidential Order. If we look at these judgments where constitutional validity of Article 371-D of Constitution of India was upheld, they simply followed the judgment in Sambamurthy's case (supra) without further discussion in the matter. It is useful to extract Para 2 of Sambamurthy's case (supra).
"2. No constitutional objection to the validity of clause (3) of Article 371-D could possibly taken since we have already held in S.P. Sampath Kumar v. Union of India, decided on 9th December, 1986 (reported in AIR 1987 SC 386) that judicial review is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution, but Parliament can ceitainly without in any way violating the basic structure doctrine amend the Constitution so as to set up an effective alternative institutional mechanism or arrangement for judicial review. One of us (Bhagwati, C.J.) pointed out in the judgment delivered in that case that : "the basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangement for judicial review, provided it is not less efficacious than the High Court". We summarised the constitutional position in regard to the power of Parliament to amend the Constitution with a view to taking up the jurisdiction of the High Court in the following words:
............if any constitutional amendment made by Parliament takes away from the High Court the power of judicial review in any particular area and vests it in any other institutional mechanism or authority, it would not be volatile of the basic structure doctrine so long as the essential condition is fulfilled, namely, that the alternative institutional mechanism or authority set up by the Parliamentary amendment is so less effective than the High Court.
"Parliament was therefore competent by enacting clause (3) of Article 371-D to provide for setting up an Administrative Tribunal and excluding the jurisdiction of the High Court in regard to the matters coming within the jurisdiction of the Administrative Tribunal so long as the Administrative Tribunal was not less effective or efficacious than the High Court insofar as the power of judicial review is concerned. The constitutional validity of clause (3) of Article371-D could not therefore be successfully assailed on the ground that it excluded the jurisdiction of the High Court in regard to certain specified service matters and vested it in the Administrative Tribunal."
13. From the above it is seen that their Lordships of the Supreme Court opined that judicial review being a basic and essential feature of the Constitution, it cannot be abrogated without affecting the basic structure of the Constitution. But their Lordships opined that the Parliament is competent to amend the Constitution for setting up an effective alternative institutional mechanism or Tribunal for judicial review provided it is not less efficacious than the High Court. In that view of the matter their Lordships held that the Administrative Tribunal constituted under Clause 3 of Article 371-D of the Constitution an alternative arrangement for judicial review was not less effective or efficacious than the High Court.
14. But at the same time their Lordships struck down the proviso to Clause 5 of Article 371-D of the Constitution conferring power on the State Government to modify or anal the order of the Administrative Tribunal by holding that it is violative of the doctrine of basic structure. The Constitutional amendment falls under the basic structure of the Constitution and the proviso to clause (5) of Article 371-D deprive the Administrative Tribunal of its effectiveness and efficacy which enable the State Government which is a party before the Tribunal to override the decision.
15. But, the Supreme Court in L. Chandrakumar v. Union of India, , repealed the judgment in Samba Murthy's case (supra).
16. In L.Chandrakumar's case (supra), their Lordships held as follows:
"The power of judicial review over legislative action vested in the High Court under Article 226; and in Supreme Court under Article 32 is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded."
Paras 17, 72, 80, 81, 92 and 93 of the judgment runs as follows:
"Chapter V ("Miscellaneous") the final Chapter of the Act, comprising Sections 28 to 37, vests the Tribunals under the Act with ancillary powers to aid them in the effective adjudication of disputes. Section 28, the "execution of jurisdiction" clause reads as follows:
28. Exclusion of jurisdiction of Courts:-On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no Court except-
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters."
72. In Kihoto Hollohan v. Zachillu, 1992 Supp (2) SCC 651, a five Judge Constitution Bench had to, inter alia, consider the validity of Paragraph 7 of the Tenth Schedule to the Constitution which excluded judicial review. The judgment for the minority, delivered by Varma, J., struck down the provision on the ground that it violated the rule of law which is a basic feature of the Constitution requiring that decisions be subject to judicial review by an independent outside authority. (Paras 181-182). Though the majority judgment delivered by Venkatachalaiah, J., also struck down the offending provision, the reasoning employed was different. The judgment for the majority contains an observation to the effect that in the opinion, of the Judges in the majority, it was not necessary for them to express themselves on the question whether judicial review is part of the basic structure of the Constitution,
80. However, it is important to emphasise that though the subordinate judiciary or Tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supieme Courts, there is no constitutional prohibition against their, performing a supplemental as opposed to a substitutional-role in this respect. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses clause (3) of Article 32 of the Constitution which reads as under:
"32. Remedies for enforcement of rights conferred by this part (1)............
(2).............
(3) Without prejudice to the powers conferred on the Supreme Court by Clauses (1) and (2). Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2)".
81. If the power under Article 32 of the Constitution, which has been described as the "heart" and "soul" of the Constitution, can be additionally conferred upon " any other Court", there is no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon the High Courts under Article 226 of the Constitution. So long as the jurisdiction of the High Courts under Articles 226/227 and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323 B of the Constitution. It is to be remembered that, apart from the authorisation that flows from Articles 323A and 323B, both Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under Entries 77, 78, 79 and 95 of List I; and to State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by Parliament and the State Legislatures for this puipose.
92. We may add here that under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above-mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution.
93. Before moving on to other aspects, we may summarise our conclusions of the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Court. We may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislation (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.
17. With the result the decisions cited supra upholding the constitutional validity of Article 371-D of the Constitution became non-est and the issue whether Article 371-D opposes the basic structure of the Constitution or not is at large and it has to be gone into. In fact in Devarakonda Rajesh Babu's case (supra), a Full Bench of this Court did not permit the Counsel for the petitioner to raise the question of constitutional validity of Article 371-D of the Constitution vis-a-vis whether it violates the basic structure of the Constitution on the same ground since the issue was not raised in the writ petition and requires examination at a deeper depth. Hence I am of the opinion that the issue whether Article 371-D is ultra vires of the Constitution or not is wide open and it requires reconsideration.
18. Even assuming without admitting that Article 371-D is constitutionally valid, the next question that falls for consideration would be whether the Explanation 4 to Paragraph 4 of the Presidential Order is valid in law.
19. A reading of Article 371-D makes it abundantly clear that the State was divided into different parts and the provisions made therein are intended to provide equitable opportunities to the people of each part of the State as a whole. "The people of each part of the State" used in this Article indicate that the Article refers to the people of each region as a whole, but not individuals in the matters of education and public employment. No limitation was prescribed on the power of President for making different provisions for various parts of the State and the protective discrimination made in this Article is based on area-wise/ territory-wise, but not individual-wise. While making any provision the President must have regard to the requirements of the State as a whole. These facts connotes that there is some imbalances in education, agriculture, communication, allocation of funds for development, per capita income, economic inequalities, employment opportunities in three regions (i.e.,) Telangana, Andhra and Rayalaseema. In exercise of the powers conferred on him, under clauses (1) and (2) of Article 371-D of the Constitution, the President of India issued Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974. This order deals with admission to various educational institutions. Under Clause (3) the State was divided into various local areas. On the basis of the jurisdiction of the Universities catering to the needs of the students of that area. Under Clause (4) a candidate on the basis of his study was declared as a local candidate in relation to the local area and the jurisdiction of those Universities. But the division of the State into local areas has no application to State wide Universities or a State wide educational institutions, but certain percentage of seats area-wise were reserved.
20. Under Clause-4 a candidate for admission to any course of study shall be regarded as a local candidate in relation to a local area on the basis of his study, subject to one exception (i.e.,) if the candidate has not studied in the educational institutions of any local area in the preceding academic year in which he first appeared for the relevant qualifying examinations, then the local area of such a candidate will be decided on the basis of his residence in the State during the whole of the said period of seven years, in relation to that local area (i) such local area where he has resided for the maximum period out of the said period of seven years; or (ii) where the periods of his residence in two or more local areas are equal, such local area where he has resided last in such equal periods.
21. From the above rule, it is seen that the place of residence of a student who studied in the State is being decided on the basis of actual study and whereas the place of residence of a student who has not studied in the State for the whole of seven years will be decided on the basis of residence in the State. To put it aptly, a student if he has not studied in the local area to which he belongs in the relevant period will not be treated as a resident of that area, but the student who did not study during the relevant period in the State will be treated as a resident of that local area where his parents are residing.
22. Under Clause-5, admission to eighty-five per cent of the available seats in every course of study provided in the Universities covering that local area are reserved in favour of local candidates in relation to local area in respect of such Universities or other educational institutions.
23. Under Clause-6, in State-wide Universities and State-wide Educational Institutions, eighty-five per cent of the available seats in every course of study provided by that institution were reserved for local candidates and allotted among the local candidates in relation to the local areas specified in sub-paragraphs (1), (2) and (3) of Paragraph 3, in the ratio of 42 : 36 : 22.
24. If we take the case of the petitioner in W.P. 18723 of 1999 the Government sent him to study in Indian Military College, Dehradun under National Integration Scheme, which he never felt that this going to Dehradun will come in his way in his further studies. By merely studying for two years in Dehradun, can it be said that he has not resided in his native place and there is a cessation of family relationship between him and his parents. Likewise, the petitioners in W.P.No.18108 of 1999 belong to Osmania University local area and they were allotted seats in Kurnool Medical College as a non-local candidate in pursuance of EAMCET Examination, 1993. Can it be said that they actually resided in Kurnool because of their study in MBBS Course in Kurnool. We should also keep in mind that unlike western countries an Indian student whether he is a minor or major as long as he pursues his education he depends on his parents for his or her study and maintenance.
25. Article 371-D read with Para 4-B of the Presidential Order came up for consideration before this Court in a case reported in The Tahsildar, Hyderabad Urban Taluk, Hyderabad v. T. Venkata Reddy, AIR 1976 AP 408. A Division Bench of this Court in approving the reasoning of a learned Single Judge on Para 4-B of the Presidential Order, after an elaborate discussion at Paras 11 and 12 held that "the residence of a candidate, though he has temporarily stayed in another area even for purposes of study or training while his parents, guardians and family reside in the local area from which he has applied for admission to the University and where he has the sense of belonging and where he gets back immediately after the short duration of study, is his place of residence. "
26. To get over the judgment of this Court, the Government of India issued G.S.R.359, (E), dated 19.7.1976 and thereafter the Government of A.P., issued G.O. Ms. No.563, G.A. (SPF), dated 20.7.1976 adding Explanation No.(iv) to Paragraph 4, which is as hereunder; .
"(iv) The question whether any candidate for admission to any course of study has resided in any local area shall be determined with reference to the places where the candidate actually resided and not with reference of his parent or other guardian."
27. It is not known why this explanation is not being applied to the students who did not study at all in the State.
28. While the judgment referred above was rendered after interpreting the language of Article 371-D, the above clarification was given to the Presidential Order without amending the Constitution.
The question to be considered is whether the defect pointed out by this Court in The Tahsildar, Hyderabad Urban Taluk's case (supra) is cured or not. I do not find any judgment to that effect. On the other hand, another Division Bench of this Court in R. Sreedhar v. The Convenor, EMCET-1995, J.N.T.U. (Writ Appeal No.1007 of 1995 dated 13.9.1995) considered the definition of'local' and 'non-local' status appearing in Annexure-III to sub-clause 1.2 of the Presidential Order with reference to the above judgment. In that case, while the petitioner was studying in Jawahar Navodaya Vidyalaya, Choppadandi, Karimnagar District, a committee constituted by the District Collector under National Integration Scheme selected him and sent him to Birauli in Bihar State for studying 9th and 10th Classes. After completion of 10th Class he returned back to Karimnagar and having studied 12th standard during the academic year 1990-92 appeared for EAMCET examinations in the year 1995 and secured a rank of 3,940. The Convenor, EAMCET Examinations excluded two years study at Birauli on the ground that Birauli is not within the local area of Osmania University and treated him as a non-local candidate and denied admission. Questioning the said action, he filed writ petition. Their Lordships considered having considered the words 'abode', 'residence', 'permanent abode', 'permanent residence' and 'domicile' etc., which are frequently used in Municipal Laws of various countries and States held that ...... There has, however, been never any doubt to the rule that the residence must answer qualitative as well as quantitative test (i.e.,) as expressed in Satya v. Teja Singh, , in which the Supreme Court approved the view of the Nevada Court to the effect, "'true' that the concept of domicile is not uniform throughout the world and just as long residence does not by itself establish domicile, brief residence may not negative it. But residence for a particular purpose fails to answer the qualitative test for, the purpose being accomplished the residence would cease. The residence must answer 'qualitative as well as quantitative test', that is, the two elements offactum at animus must concur".
29. Ultimately their Lordships held that "once parents are found residing in a particular area, it will be difficult, unless there are such materials to show that there were circumstances to divide the animus of the child from that of the parents, to hold that the child would ever have a residence of its own, independent of the residence of the parents. " Their Lordships further held that "a candidate generally speaking, is a young boy or a girl dependant upon the parents or guardians for their study and upbringing must necessarily be the residence of his or her parents or guardians. It is inconceivable that a dependant can reside independently of his parents or guardians. A divided son or a married daughter may reside by themselves, but not a dependent son or an unmarried daughter."
30. Explanation No.IV to Para 4 of the Presidential Order was again considered by another Division Bench of this Court reported in Chairman, University of Health Sciences v. K. Tulasiram, 1996 (3) ALD 1031 (DB). In this case also the petitioner who belongs to Chittoor District had been sent by Jawahar Navodaya Vidyalaya, Valasapalle to study IX and X Classes in a place called Pabra in the district of Hissar in the State of Haryana in the years 1991-92 and 1992-93. After completing his X Class, the petitioner returned back to his district and studied Intermediate during the years 1993-94 and -1994-95 in Chittoor District. He passed EAMCET-1995 and secured a rank of 11050. But the Convenor denied a seat to him in the First Year MBBS Course of study of a college in Sri Venkateswara University on the ground that he was not a local candidate as contemplated under Presidential Order.
31. Their Lordships observed that "A serious question, however, has arisen whether, notwithstanding his staying away from the local area for a period of two years in the State of Haryana, he was qualified as one who resided in the local area for a period of not less than four years immediately preceding the date of commencement of the relevant qualifying examination. One has to take notice, however, of the fact that the petitioner is a minor and that it is not in dispute that his parents have been residing in village Valasapalle falling within the local area. Writ petitioner's parents thus are residents of the local area and native of Valasapalle village.
32. The learned Standing Counsel contended that once it is found that the petitioner-respondent has not actually resided within the local area consecutively for a period of four years immediately preceding the date of commencement of the relevant qualifying examinations, disqualification gets attached. With such disqualification he cannot qualify for admission under the said Presidential Order and the Rules and no investigation with regard to animus of a child can be divided from that of his or her parents is required. Rejecting that contention, their Lordships observed that "we would have given some more consideration to this argument had we not noticed the obvious contradiction in the contention that when a reference is made to a candidate for admission to any course of study in the above Presidential Order, no mention is made, while deciding whether the candidate resided in any local area, the concept of animus in the case of the candidate shall not be considered at all and when such a provision is made it is not clarified whether the candidate actually resided will not include the residence, as the animus must always determine answering both the qualitative as well as quantitative test."
33. Their Lordships further held that "Rules are intended to be reasonable, and should take into account the variety of circumstances in which those whom the rules seek to govern find themselves."
Their Lordships further observed as follows:
"15. In a suitable case one may have to pause and think whether the interruption of two years in the continuous education of a candidate like the petitioner-respondent on account of the situation which is beyond his control will disqualify him and in an appropriate case the Court may consider that his education outside the local area for such compelling reasons should be taken as continuous with the education in the local area as this Court has held in the case of R. Sridhar v. The Convenor, EAMCET-1995, (supra)."
34. Stating the objectives of national integration, their Lordships further observed that:
"The scheme of national integration is obviously not one which is intended to create a disqualification in a person who otherwise would have continued to study in a school in the State of Andhra Pradesh but for the scheme and nomination for the scheme by the competent authority. Any other interpretation, in our opinion shall be against the scheme of the Presidential Order as well as the scheme of National integration."
Again their Lordships taking note of the apathy of the parties concerned in interpreting the Presidential Order observed:
"It is indeed a matter of concern for the academicians .that when entrance examinations are held and candidates are selected they are subjected to such interpretations of the Presidential Orders and rules of eligibility by the persons authorized to make selections that instead of promoting the cause of education many impediments are created including the one faced by the appellant herein."
35. Coming to the other case law on the subject, in T. Sareetha v. T.Venkata Subbaiah, . Justice P.A.Choudhary, as he then was, while deciding the competency of a Court to entertain a petition for restitution of conjugal rights, interpreted the words 'last resided' occurring in Section 19(111) of the Hindu Marriage Act held in Para 9 as follows:
"9. Section 19: "Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction-
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
(iv) the petitioner is residing at the time of presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he was alive."
Of its four clauses of Section 19 of the Act, we are concerned, in this case, with Clause (iii) which speaks of a place where the parties to the marriage last resided together. The words "parties to the marriage" in that clause present no difficulty and they obviously refer to the wife and husband. It is the use of the word "resided" that causes a degree of uncertainty in the asceriainment of the meaning of this clause. The word is not defined by the Act. In its dictionary sense of the word, "to reside" means, "to dwell permanently or for a length of time." (See Webster's dictionary). Temporary place of residence or a casual place of stay is thus excluded from being called a residence. Further, in the third clause of Section 19 of the Act, the "residence" spoken of is the joint residence. Combinedly read, the third clause of Section 19 refers to a place where the husband and wife lived together permanently or at least for sufficiently long period of time. Such a place can only be a place of permanent dwelling taken up by the husband and wife jointly for their matrimonial purposes. That place must be one to which the parties are bound by the solemn ties of their matrimony. That can only be the place chosen by them jointly as suitable for fulfilling their matrimonial vows of Dharma, Artha, Kama and Moksha. In other words the third clause of Section 19 of the Act refers to the matrimonial home of the parties to the marriage."
From this it is seen that temporary place of residence or a casual place of stay has to be excluded from being called as residence.
36. A Full Bench of Mysore High Court in M. Clarance v. M. Raicheal, AIR 1964 Mysore 67, considered the words 'reside' occurring in Section 3 of the Indian Divorce Act.
"The word 'reside' connotes some degree of continuity of stay in a place and the words 'residing together' would consequently mean that the persons residing together should have continuously stayed together in the same dwelling for sometime. There is no material in this case to show that the two parties were together at any time except during the marriage ceremony at the Church and at the dwelling where the marriage was intended to be consummated on the night of the marriage. Being together in such circumstances may not be regarded as 'residing together' in the ordinary sense of those words. The Courts, however, have given a liberal construction to the term to obviate obvious hardships and even a brief period of stay together has been held to fulfil the requirements of the provision in cases where the residence together has been confined to one occasion. But in cases where there has been residence together of a more permanent character and a casual or brief residence together, the Courts have taken the view that it is only the former that can be considered as residence together for determining the jurisdiction. Indeed that is the view taken by this Court in C.R.C. No.38 of 1962 (Mys.)"
37. From the above discussion, (1) the words 'reside' or 'residence' occurring in the Municipal Laws mean not a casual or a temporary place of residence, but there must be some animus to live permanently.
(2) The word 'residence' has to satisfy both the qualitative as well as quantitative tests;
(3) 'residence' at a particular place for a particular purpose being accomplished the residence would cease. In cases of minor and dependants their residence would be the residence of theirs parents and guardian.
38. But a Division Bench of this Court in a case reported in Dr. N. Prashantha v. Union of India, (DB), held that since the S.V.Medical College, Tirupati, in which the petitioner studied MBBS course has not been recognised as a State-wide educational institution in the Presidential Order, 1974, the benefit provided under Explanation (iii)(b) of Paragraph-4 of the Presidential Order cannot be extended to the petitioner and therefore, she is entitled to be treated as a local candidate of S.V.University Area only. Under the Presidential Order, no candidate can be treated as a local candidate for two local areas simultaneously.
39. The facts of this case are similar to the facts of the case on hand. In this case also the petitioner is a resident of Karimnagar District and in the Entrance Test for under Graduate Courses in MBBS and allotted to Sri Venkateswara Medical College, Tirupati as a non-local candidate. Her contention was that either she should be treated as a local candidate of Osmania Medical College or by extending the benefit under Explanation (iii)(b) of Paragraph-4 of the Presidential Order she must be treated as a student in State-wide educational institutions and extend the benefits provided in the section. But the Bench limited its consideration to the Explanation (iii)(b) of Para 4 of the Presidential Order and simply declared that the petitioner has to be treated as a local candidate of Sri Venkateswara University area without considering Explanation-(iv) to Clause-4 of the Presidential Order or the case law on the subject.
40. Under Article 371-D the President is empowered to make any order having regard to the requirements of the State as a whole for equitable opportunities and facilities for the people belonging to different parts of the State in the matter of public employment and in the matter of education and different provisions may be made for various parts of the State. Under Article 371-D(2)(b)(iii) the President is empowered to specify any part or parts of the State to be regarded as the local area for purposes of admission to any University within the state or to any other educational institutions which is subject to the control of the State Government. Accordingly, the President issued A.P. Educational Institutions Regulation of Admission Order, 1974 whereunder the State was divided into different local areas for purposes of admission into various Universities other than State-wide educational institutions. But under Clause (4) the local area for a student is determined on the basis of his study in a particular area. If the local area of a student is decided on the basis of his study the students like petitioners who were forced to go outside the local area to which they belong for further Studies they are being treated as non-locals for further studies since they were outside the local area for more than four years. The resultant effect is that students of one local area by birth is becoming students of the other local area by virtue of his studies, more so in cases where students got selection under 15% quota reserved for open competition and I feel that by following this procedure the very object underlying under Article 371-D is defeated since the state was divided into various local areas and meant to provide better opportunities to the students belonging to backward areas by treating them as a class, since they are not able to compete with the students of forward areas. Merely studying for four years in a forward area his backwardness cannot be eliminated and since he is not able to compete with the other students of the area he will loose the opportunity of meeting his educational qualifications. Likewise, a student belonging to the forward area who got a seat in a backward area under open category, by virtue of his study in that area he is being treated as a student of backward area and he will be gaining advantage over other students of that area. I feel that the very Presidential Order treating a student as a local candidate of an area on the basis of his study without answering the quantitative as well as qualitative test to decide the place of residence runs counter to the principle underlying under Article 371-D.
41. Nextly, after the judgment of this Court in Tahsildar Hyderabad Urban Taluk's case (supra), Explanation-IV was added to Clause-4 of the Presidential Order to the effect that local area of a student will be determined with reference to the place where the student resided and not with reference of his parent or other guardian residing. But at the same time under Clause 4(2)(b) a student who has not studied in any of the educational institutions in any local area is being treated as a. resident of a local area on the basis of his residence in such local area. Since he studied outside the state as per Explanation IV to Clause-4 he cannot be treated as a student of any local area. But on the basis of residence of his parents the student is being treated as a student of that particular area though he never studied in any of the educational institutions in the State. To put it aptly the Presidential Order differentiates the students who studied in the educational institutions in the State and the students who have not studied in the State and the principle of local area is being applied differently to these two categories of students. I am of the opinion that the same amounts to a hostile discrimination without any nexus to the object sought to be achieved and the same offends Article 14 of the Constitution.
42. The question is that in the light of these well settled principles and three judgments of this Court on the word 'residence' used in the Presidential Order whether Explanation (iv) to Rule 4 whether the authorities are justified in still following the rule and whether the said explanation is inconsonance with the objective of underlying Article 371-D principle that place of study of the candidate concerned has to be taken into consideration to determine whether he is a local or non-local candidate.
43. Nextly, the petitioners in Writ Petition Nos.12486, 12144 of 1999 and W.P. No. 1832 of 2000 questioned the vires of Rule 4 of Andhra Pradesh Regulation of Admission to M.D.S. Course wherein it was specified that in Master of Dental surgery, rule of reservation in various specialities will be observed by rotation by contending that such a provision runs counter to the Full Bench decision of this Court in Devarakonda Rajesh Babu's case (supra), which held as follows:
(1) that Article 371-D is intra vires the Constitution;
(2) that any order passed under Article 371-D of the Constitution of India making special provision for area reservation based on the residential qualification is valid and shall prevail over the general provision for class reservation envisaged under Article 15(4) and/ or 16(4) of the Constitution of India;
(3) that the roster for class reservation has to be confined to the area for which reservation is provided under the Presidential Orders and for class reservation in each area independent roster is necessary;
(4) that for the purposes of reservation in appointments after adhering to the area reservation as aforementioned the fiction of carry forward can be applied, as envisaged above but such fiction of carry forward cannot be applied to admissions in the educational institutions and any class reservation if at all possible has to be confined to the number of seats available in a particular academic year of admissions. One seat or couple of seats, since area reservation has to be implemented before any class reservation is given effect to, cannot be subjected to either the so-called rule of dereservation or the rule of class reservation as they are to be made available first in accordance with the Presidential Order for each area of reservation. The rule in this behalf will be as one indicated in the judgment of this Court in P. Padmanabha Reddy's case (supra) or B. Ramesh's case (supra) as the case may be."
44. In this case their Lordships proceeded on the assumption that the area reservation based on the residential qualification is valid and while area reservation is a special provision, it will prevail over the general provision for class reservation provided under Article 15(4) and/or 16(4) of the Constitution. Their Lordships further held that if number of seats in a particular year are less than making the class reservation roaster operational, since area reservations must prevail, class reservation may not be available without thus reserving such number of seats for different classes of persons on the basis of the fiction of the carry forward each year admissions in educational institutions in different disciplines must be completed and exhausted if there is a chance of any class losing the benefit of the roaster, it is obvious the roaster be in-operational. In arriving at the above decision or conclusion their Lordships relied on a judgment of the Supreme Court in R.C. Poudyal v. Union of India, , wherein the Supreme Court interpreted Article 371-F(f) as introduced by Constitution 36th Amendment Act 1975. Their Lordships rejected the contention that reservation of seats in the Legislature based on ethnic group is itself destructive of democratic principles, observed that the provisions covered by non- obstante clause in a statute gives overriding effect over other provisions in the statute to which it applies and in that sense, the non-obstante clause used in Article 371-F would give overriding effect to clauses (a) to (p) of Article 371-F over other provisions of the Constitution. In that case the said provision was upheld by the Supreme Court by observing that clause (i) of Article 371-F and the consequent change in the electoral roll were intended to recognise and accommodate the place of growth of the political institutions of Sikkim and to make the transition gradual and peaceful and to prevent dominance of one section of the population over another on the basis of ethnic loyalties and identities. These adjustments and accommodations reflect political expediencies for the maintenance of social equilibrium. The political and social maturity and of economic development might in course of time enable the people of Sikkim to transcend and submerge these ethnic apprehensions and imbalances. Their Lordships further held that the inequalities in representation in the case are an inheritance and compulsion from the past.
45. To my mind this judgment supports the case of the backward classes than the regional reservations. The class reservations are intended to undo the injustice meted out to the majority of the Hindu Society who were kept away from education, civilisation, political and economic power and they were treated worse than cattle. While it is a caste prejudice in India, it is racial discrimination in western society. With the result the social, economic and political power is being enjoyed by people belonging to microscopic minority of people vast segment of the society has no say in the governance of the country. In one word, the society can be classified into two groups (1) beneficiaries of the system and victims of the system. These two classes of people do exist in any part of the State, Country or Globe. Ours being a welfare state, a duty is cast on the Government to improve the living conditions of these people also. Exactly, Part IV of our Constitution is aimed at the establishment of an egalitarian society by removing the disparities in all walks of life, while area backwardness is transitional, social backwardness is times immemorial. Hence I feel that the observation of the Bench in this case that class reservation being general, it has to give way to the area reservations being a special provision is to be given credence, the people belonging to weaker sections in that local area can never get an opportunity to get into the educational institutions of excellence and it amounts to reservation to the forward communities in these institutions.
46. Be that as it may, it is a known fact that Articles 15(4) and 16(4) forms part of the fundamental rights Chapter guaranteed to the citizens which are inalienable and either a constitutional provision or any statute law infringes the fundamental rights guaranteed to the citizens of this country, the constitutional provision as well as the statute law has to be declared as invalid. Merely on the ground that the regional reservation was introduced later than the class of reservations, the former will prevail because of the non-absentee clause used in Clause 10 of Article 371-D may not satisfy the constitutional test. Article 371-D is intended to eliminate regional imbalances and to provide equal opportunities to the people of different areas of the State in matters of employment and education. One should also keep in mind that 371-D is intended to speedy development of the backward areas of the State so as to secure balanced development of the State as well and to provide equitable opportunities to different areas of the state in the matter of education, employment and other career prospects in public services. From this it is seen that development of area contemplated in matters of education and employment should reach all the people of that part of the State to achieve balanced development of the State. That will be possible only when all sections of people in that area get equal opportunities. If the Court holds that the class of reservation has to give way to the area reservation and if the reservations are not observed for the reserved categories of citizens in the backward area, forward communities alone stands benefited under area reservation. Hence a duty is cast on the Courts to interpret the provision in a harmonious way and for giving effect to the object underlying legislative scheme and the purpose of the legislation In Chief Justice of Andhra Pradesh v. L.V.A Dikshithulu, , their Lordships of the Supreme Court held in Paras 63 and 54 as follows:
"63. The primary principle of interpretation is that a constitutional or statutory provision should be construed "according to the intent of they that made it" (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and employed by the legislation is precise and plain and thus by itself, proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean, or evocative or can reasonably bear meaning more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to as to abstain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well recognised rules of construction, such as its legislative history, the basic scheme and framework of the stature as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.
64. Where two alternative constructions are possible the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purposes of the enactment. These canons of construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living, integrated organism, having a soul and consciousness of its own. The pulse beats emanating from the spinal cord of the basic framework can be felt all over its body, evening the extremities of its limbs. Constitutional exposition is not mere literary garniture, nor a mere exercise in grammar. As one of us {Chandrachud, J. as he then was) put it in Kesavananda Bharati's case , "while interpreting words in a solemn document like the Constitution, one must look at them not in a school-masterly fashion, not with the cold eye of a lexicographer, but with the realisation that they occur in 'a single complex instrument in which one part may throw light on the other' so that the construction must hold a balance between all its parts."
47. Coming to Super specialities, naturally the seats will be limited in single digits and in allotting the seats area wise at times each area may get one seat and in a State-wide institution though three seats are to be filled and one seat is allotted to each of the region and no class reservation is observed none of the students belonging to the reserved category will be able to get a seat at any time. In such an event it results in wholesale reservation in favour of open categories and hostile discrimination in favour of the reserved categories. Hence to give an harmonious construction and interpretation the authorities have to observe class reservation by rotation to provide equal opportunities to all sections of the society. If any other procedure is followed the persons belonging to the reserved categories will be in disadvantage.
48. Hence, I feel that the judgment in Devarakonda Rajesh Babu's case (supra) requires reconsideration in the light of the judgment of the Supreme Court in L.Chandra Kumar's case (supra) as well as the observations made by me in this order.
49. Likewise, the Superior Courts in India held that if there is one post or one seat the principle of class reservation cannot be observed, on the other hand while interpreting Article 371-D the Courts held that if there is one seat even in a non-Statewide institution it can be reserved for a local candidate conforming to 85% seats reserved for local candidates. I feel that both the above views runs counter to each other and require reconsideration.
50. Likewise in Fazil Gafoor's case (supra), their Lordships held that class reservation to be made should be confined to the area for which reservation is provided. To the same effect is the judgment in Devarakonda Rajesh Babu's case (supra). While area wise reservations are meant for uplifting the people of that area the class reservations are meant for the upliftment of the Socially and Educationally Backward Class people wherever they are in the State and the percentage of reservations are provided both in education and employment on State-wide basis more so on population basis in case of S.Cs. and S.Ts.. Hence if a candidate belonging to a particular reserved category for which the seat is ear marked it should go to the next reserved category in that area as per the scheme of reservations and if no candidate from any reserved category is available it should be filled up with a candidate belonging to reserved category of other region. Under no circumstances the seat or post can be allotted to the open category. If such a procedure is not followed there will be an in-equilibrium in observing the rule of reservation in favour of reserved category by taking the whole State as a unit.
51. In the light of the foregoing discussion, I feel that an authoritative pronouncement is required preferably by a Larger Bench, on the following issues:
1. Whether Article 371-D of the Constitution is intra vires and does not affect the basic structure of Constitution of India in the light of the judgment in L. Chandrakumar's case (supra).
2.(a) Whether Clause-4 of the A.P. Educational Institutions Admissions Order, 1974 in fixing the local area of a student on the basis of his stay in a particular local area without reference to his actual residence is valid in the light of the law of the land as laid down by the Superior Courts with regard to place of residence;
(b) Whether the Explanation-IV to Clause-4 of the said order cures the defect pointed out by this Court in Tahsildar Hyderabad Urban Taluk's case (supra).
(c) Whether the authorities concerned are justified in determining the place of residence of a student on the basis of the above explanation after the judgments of this Court rendered in Sreedhar v. The Convenor, EAMCET-1995, J.N.T.U (Writ Appeal No.1007 of 1995, dated 13.9.1995) and The Chairman, University of Health Sciences's case (supra) after considering the above explanation.
3. Whether the judgment in Devarakonda Rajesh Babu 's case (supra), wherein it was held that class reservations have to give way to area reservation requires reconsideration in the light of the opinion expressed in this order.
4. In case of class reservation, the superior courts held that no reservation can be provided in case where there is one seat or one post. But coming to area reservation this court held that even if one seat is there in a non-State-wide institution reservation has to be observed in favour of local candidates. Whether these two opinions runs counter to each other or not.
5. Since class reservations are state wide reservations and the reservation is inter transferable amount the various groups of BCs as per the policy of the Government, whether the view taken by this Court in Dr. Fazal Gafoor's case (supra) that class reservation group-wise has to be confined to the local area but not State-wide is correct proposition of law.
6. Office is directed to place this order before the Hon'ble the Chief Justice and obtain appropriate orders for referring the matter to a Large Bench in the light of the importance of issues raised in this order.