Andhra HC (Pre-Telangana)
Dr. K.V. Seshaiah vs Ntr University Of Health Sciences And ... on 12 March, 2003
Equivalent citations: 2003(3)ALD435
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. This Writ Petition is filed seeking a writ of Mandamus declaring that the action of the 1st respondent-University in denying admission to the petitioner in MD (General Medicine) Course in Kurnool Medical College, Kurnool, against the in service OC category as unconstitutional and illegal and further to declare that the action of the 1st respondent-University in granting admission to the 4th respondent into the said course is illegal and unconstitutional and for consequential reliefs.
2. The facts are not in dispute. For the Academic Year 2002-2003 entrance test was conducted on 30.10.2002 for admission to Postgraduate Medical Courses in the Medical Colleges affiliated to the 1st respondent-University.
3. The petitioner who completed MBBS Course in the year 1981 from Kurnool Medical College, after completing one year housemanship at the Government General Hospital, Kurnool worked as a Medical Officer with South Eastern Railway Division till 1987. Thereafter he resigned the said job and during 1991 he was recruited as Civil Assistant Surgeon in the Medical and Health Department of State Government. He worked as Medical Officer at different places in Krishna District and completed more than 11 years of continuous rural service. He appeared for the Post-graduate Medical Entrance Test held on 30.10.2002 as an in-service candidate and secured 145 out of 200 marks. He was assigned merit-ranking No. 272. On the basis of the said rank he staked his claim for admission to MD (General Medicine) in a seat available for in-service candidate under Open Category in Kurnool Medical College.
4. However, the 4th respondent who is also an in-service candidate and appeared for the P.G. Medical Entrance Test on 30.10.2002 also secured identical marks like the petitioner i.e., 145/200. The 4th respondent was assigned the rank No. 268 by the 1 st respondent-University on the basis of the marks secured by him in the MBBS examination and on the basis of the said rank, the 4th respondent has been granted admission into MD (General Medicine) course at Kurnool Medical College, Kurnool.
5. In the circumstances, the action of the 1st respondent-University in denying admission to the petitioner in MD (General Medicine) Course in Kurnool Medical College and granting admission to the 4th respondent has been questioned in this writ petition.
6. The contention of the petitioner is that when in-service candidates secured identical marks in the P.G. Entrance Test the tie is liable to be resolved basing on the length of service they have put in, but not on the basis of the marks they have secured in the MBBS examination. It is contended that since the petitioner has completed more than 11 years of continuous service in rural area and gained experience, whereas the 4th respondent has just finished the required three years service in the rural sector, the 1 st respondent-University ought to have given weightage to the service component to be inconformity with the object of providing 15% reservation for the in-service candidate. It is also alleged that since the 4th respondent could not clear final MBBS examination in the first attempt and further he had been detained in surgery subject and completed the course only as a referred student, whereas the petitioner cleared all his examinations in the MBBS Course in his first attempt itself, the fact that the 4th respondent secured more marks in MBBS examination ought not to have been taken as a deciding factor for resolving the tie. The further contention is that since the petitioner and the 4th respondent passed MBBS Course from different Universities, the comparison of the marks secured by them in their MBBS examination ought not to have been adopted by the 1st respondent-University for resolving the tie. The petitioner placed reliance upon Regulation 9 of the P.G. Medical Education Regulations, 2000 and contended that the academic merit on the basis of the individual cumulative performance at the MBBS examinations can be determined only where such examinations have been passed from the same University. Accordingly it is pleaded that the 4th respondent who secured identical marks like the petitioner cannot be assigned a higher rank and consequently he cannot be granted admission into MD (General Medicine) Course ignoring the claim of the petitioner.
7. The 1st respondent contested the writ petition by filing a counter. The Registrar of the 1st respondent-University who has sworn to the counter-affidavit stated that as per Rule 9(ii) of the Rules issued under A.P. Act 5 of 1983 which govern the admissions into P.G. Medical Courses in the State, in case of equality of marks in the entrance test the total percentage of marks in the MBBS shall be taken into consideration for fixing the merit ranking of the candidates and where even the entrance test marks and the MBBS marks are equal, marks obtained in the concerned subject in MBBS shall be taken into consideration, if the candidates opt for the same subject. It is stated that the procedure envisaged in the said Rule has been strictly followed while preparing the merit list for resolving the tie between the petitioner and the 4th respondent and since the 4th respondent is more meritorious than the petitioner he was allotted the seat in MD (General Medicine) Course in Kurnool Medical College under OC local service quota as opted by him. It is further stated that the expression "in-service candidate" has been specifically defined under the Rules, and therefore, the length of service cannot be taken as criteria for resolving the tie between the candidates securing equal marks. It is further stated that since all the Medical Colleges in the State of Andhra Pradesh are affiliated to the 1st respondent-University which was established in the year 1986 and has been conducting common entrance test for admission into P.G. Medical Courses from the year 1987, in case of tie among the candidates with equal marks in the entrance test the percentage of marks in the MBBS are being considered to decide the ranking among the candidates. Therefore, according to the 1st respondent-University the procedure adopted by the University is in accordance with the statutory Rules and there is no illegality as alleged by the petitioner in granting admission to the 4th respondent.
8. On behalf of the 4th respondent a separate counter has been filed denying the allegations made by the writ petitioner and contending that the procedure adopted by the 1 st respondent-University in assigning a higher rank to him and granting admission into M.D (General Medicine) on the basis of the said rank is in accordance with law and there is absolutely no justifiable reason warranting interference with the said decision of the 1st respondent-University.
9. I have heard the learned Counsel for the petitioner Sri Nooty Rama Mohana Rao, the learned Standing Counsel for the 1st respondent-University Dr. Y. Padmavati, and Sri Mowa Chandrasekhara Rao, the learned Counsel appearing for the 4th respondent.
10. The learned Counsel for the writ petitioner reiterated the contentions raised in the affidavit filed in support of the writ petition and strenuously contended that so far as in-service candidates are concerned the length of service alone shall be given priority for resolving the tie. The learned Counsel also submits that failure to give weightage to the service component will frustrate the very object of the reservation provided for the in-service candidates to improve and enhance the quality of the Medicare liable to be extended by the Government Doctors in the Hospitals. He also contended that Rule 9 (ii) relied upon by the 1st respondent-University for resolving the tie is not in conformity with Regulation 9 of the P.G. Medical Education Regulations, 2000. He pointed out that since the P.G. Medical Education Regulations made under Indian Medical Council Act are binding on the 1st respondent, they cannot adopt a procedure for resolving the tie, in contravention of the Regulations. He also contended that since the petitioner was treated as a local candidate of S.V. University area and since no seats are earmarked for the in-service candidates against the 15% of unreserved seats other candidates who secured lesser marks than the petitioner have been granted admission in MD (General Medicine) in the other Universities local areas and thus great injustice has been meted out to the petitioner by confining the case of the petitioner only to S.V. University area.
11. On behalf of the 1st respondent-University the learned Standing Counsel at the outset submitted that the admissions for the Academic Year 2002-2003 were closed on 31.12.2002 and since the course has already been commenced with effect from 30.11.2002, it is not open to the petitioner to challenge the admissions at this belated stage and on that ground alone the writ petition is liable to be dismissed.
12. The learned Standing Counsel further submitted that in the absence of specific provision for resolving the tie between the candidates who secured equal marks in the entrance test, the State Government has rightly prescribed Rule 9(ii) of the Rules in exercise of rule making power under A.P. Act 5 of 1983 and the higher rank assigned to the 4th respondent strictly in accordance with the said Rule cannot be held to be arbitrary or illegal on any ground whatsoever. The learned Standing Counsel while referring to the relevant provisions under A.P. Medical Colleges (Admission into P.G. Medical Courses) Rules contended that the length of service is immaterial for resolving the tie among in-service candidates.
13. On behalf of the 4th respondent Sri Mowa Chandrasekhara Rao submitted that the selection made by the 1st respondent-University is in accordance with the statutory provisions and since the petitioner failed to challenge the vires of the Rule 9 (ii), he cannot be granted any relief. The learned Counsel also relied upon Section 6(3) and Section 8 of the University of Health Sciences Act, 1986 and contended that after the establishment of the 1st respondent-University all the Medical Colleges in the State are affiliated to the 1st respondent-University and therefore, the contention of the petitioner that the performance of the petitioner and the 4th respondent cannot be compared since they studied in different Universities is misconceived and untenable. The learned Counsel contended that the 1st respondent-University has strictly followed the merit as the only criteria for granting admission and therefore the contentions of the writ petitioner are devoid of merit and he is not entitled to the relief as prayed for.
14. At the outset I shall consider the objection raised by the learned Standing Counsel for the 1st respondent-University as to the maintainability of the writ petition on the ground that the course has already been commenced with effect from 30.11.2002. The learned Counsel in support of her contention placed reliance upon Shafali Namdwani v. State of Haryana and Ors., .
15. In the said decision the Apex Court was dealing with a case where the entrance examination for the academic session 2000 was held on 16.4.2000. The first counselling was held on 8.5.2000 and the second counselling was also held on 13.6.2000. The appellant was allotted a seat in MS (Obstetrics and Gynaecology) in the first counselling; however, she opted for being wait-listed for second counselling. When the candidate in the merit position 42 who was initially admitted to MD (Medicine) against a seat reserved for the All India Quota, opted for MD Pathology in the second Counselling, a seat occupied by her in MD (Medicine) fell vacant. The said seat was offered to the appellant who is next in the merit. She accepted the same and joined the session on 14.6.2000. The admission process was closed on 14.6.2000. Thereafter, the respondent No. 4 filed a writ petition on 25.9.2000 contending that the admission of the appellant in MD Medicine was invalid as respondent No. 4 was higher than the appellant in merit position. The said writ petition was allowed by the High Court on 24.1.2001 quashing the admission granted to the appellant in MD Medicine. However, the appellant continued in MD Medicine Course by virtue of the interim orders, pending Special Leave Petition filed by her. The Supreme Court while allowing the Appeal on 25.9.2002 reiterated the ratio laid down in the earlier decisions and held as under:
"The clause in the prospectus makes it clear that there would be no change in the subject or readmission into a different course once the last date of admission was over. To permit Respondent 4 to take admission in MD (Medicine) for the subsequent academic session would not only be a contravention of the prospectus but would also amount to an increase in the permissible seats for postgraduate students in MD (Medicine) for the subsequent year. This is impermissible under Regulation 10(A) of the Medical Council of India Regulations on Graduate Medical Education, 1997 which provides, inter alia, that no Medical College shall increase its admission capacity in any course of study or training (including a postgraduate course of study or training) except with the previous permission of the Central Government. An academic seat is limited to an academic session. It cannot like a vacant Government post be "carried forward" to the next year."
"Besides there is no question of respondent 4, "making up" the requisite period necessary to complete the course. The course is for three years which having commenced in May, 2000 should be completed in May, 2003. Respondent 4 would be wholly ill equipped to take the examination nor would he have put in the requisite number of years for taking the 2003 examination. There is no provision by which a student who has, for whatever reason, failed to attend the course from the commencement of the session to take supplementary classes in order to be sufficiently equipped for the final examination. Apart from anything else, the postgraduate courses in question are for 3 years. Respondent 4 and the appellant have already completed two-and-half years of their respective courses. To disallow the appellant from completing her MD (Medicine) and to grant admission to respondent 4 in MD (Medicine) at this stage would amount to a colossal waste of effort and expenditure."
16. There can be no dispute as to the above ratio laid down by the Supreme Court. But the facts in the present case are clearly distinguishable and the ratio of the above case has no application to the facts on hand.
17. It is pertinent to note that in the instant case the entrance test was conducted on 30.10.2002 and the results were announced on 5.11.2002. The petitioner attended the counselling on 16.11.2002 and aggrieved by the action of the 1st respondent-University in denying a seat to him filed the writ petition on 22.11.2002 by which time the 4th respondent was only granted a provisional admission and the required formalities were yet to be complied with for regular admission. It is also pertinent to note that that this Court while admitting the writ petition on 26.11.2002 granted an interim direction that the admission of the 4th respondent shall be treated as provisional. Thereafter the 1st respondent-University could come forward with a counter affidavit only in the third week of February, 2003. It is true that the admissions were closed on 31.12.2002, but admittedly this writ petition was pending as on that date. Therefore, there is absolutely no reason to attribute any laches on the part of the petitioner. That apart, the duration of the Postgraduate course in question for the in-service candidates is two years and the 4th respondent has completed about two months in the course in question. In the facts and circumstances of the case I am of the view that the case on hand cannot be rejected at the threshold on the basis of the ratio laid down by the Apex Court in Shafali Ncmdwani v. State of Haryana (supra).
18. For better appreciation of the other contentions raised by the petitioner on merits, the facts not in dispute may be noted in brief. Both the petitioner and the 4th respondent appeared for the entrance test as in-service candidates against O.C. category. Both are local candidates in respect of S.V. University local area. Whereas the petitioner passed MBBS in the year 1981 from S.V. University, Tirupathi, the 4th respondent passed MBBS long thereafter from the 1st respondent-University. Similarly the fact that the petitioner has put in much longer service than the 4th respondent is also not in dispute. However, both of them secured equal marks of 145/ 200 in the entrance test. The 1st respondent while preparing merit list assigned a higher rank to 4th respondent on the basis of marks obtained by him in MBBS. Hence the question is whether the 1st respondent is justified in assigning higher rank to the 4th respondent.
19. The Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (Act No. 5 of 1983) hereinafter referred to as "the Act", provides for regulation of admissions into educational institutions and prohibition of the collection of capitation fees in the State of Andhra Pradesh. Section 2(c) of the said Act which defines educational institution includes a college whether managed by Government, private body, local authority or University and carrying on the activity of imparting education therein whether technical or otherwise. Section 3(1) of the Act provides that subject to such Rules as may be made in this behalf, admission into educational institutions shall be made either on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test conducted by such authority and in such manner as may be prescribed. As per the proviso to Section 3 (1) admission into Medical and Engineering Colleges shall be made only on the basis of the ranking assigned in the common entrance test conducted as aforesaid. Section 3 (2) states that the admission into educational institutions under Sub-section (1) shall be subject to such Rules as may be made by the Government in regard to reservation of seats to the members belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and other categories of students as may be notified by the Government in this behalf and the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974.
20. Section 15 of the Act empowers the State Government to make Rules for carrying out all or any of the purposes of the Act. In exercise of the power conferred under Section 15 (1) of the Act G.O. Ms. No. 260, Health, Medical and Family Welfare, (E. II) dated 10.7.1977 has been issued making the A.P. Medical Colleges (Admission into Postgraduate Medical Courses) Rules, 1997 (for short "the Rules"). It is necessary to extract Rule 3 of the said Rules, which provides for reservation.
"Reservations :--(1) 15%, 6%, 25% of the total number of seats notified each group for Degree and Diploma Courses separately shall be reserved for Scheduled Castes, Scheduled Tribes and Backward Classes respectively."
(2) 15% of seats in Clinical subjects i.e., in Medicine, Surgery, Obstetric and Gynaecology Groups and 30% of the seats in non-clinical subjects in each group for Degree and Diploma Courses separately are reserved for in-service candidates in each category under service quota. Candidates selected on merit in respective categories shall be counted against service quota. Service rendered shall be calculated as per date specified by University of Health Sciences.
Explanation - 1 :--It is hereby clarified that "in-service candidate" means a candidate who has put in
(a) two years of continuous regular tribal service;
(b) three years of continuous regular rural service; or
(c) six years of continuous regular service. Explanation-2
(a) 'Tribal Service' means service in tribal institutions recognized by Government of Andhra Pradesh.
(b) 'Rural Service' means service in Primary Health Centres, Subsidiary Health Centres, Dispensaries, Taluk Hospitals, Mobile Medical units, Leprosy Control units, or the Sample Survey-cum-Assessment units under Leprosy Temporary Hospitalisation Wards situated in Taluks and Leprosy Training Centre at Pogiri (Ref: G.O. Ms. No. 31, HM & FW (B2) Department, dated 11.2.1997)
(c) 'Continuous regular service' means regular service in Andhra Pradesh in the following services, namely :-
(a),Andhra Pradesh Medical and Health Services;
(b) Andhra Pradesh Insurance Medical Services;
(c) Andhra Pradesh Vaidya Vidhana Parishad; or
(d) University of Health Sciences."
xxxxx xxxxx"
21. Whereas Rule 7 of the Rules provides that Notification shall be issued by the University of Health Sciences inviting applications from the eligible candidates to appear for entrance test to the P.G. Degree or for the Diploma Courses in the Medical Colleges, Rule 8 states that there shall be a common entrance test for Clinical, Preclinical and Para-clinical subjects and the procedure for conducting the entrance test has been prescribed.
22. Then it is relevant to note Rule 9, which deals with preparation of merit lists.
Merit Lists :--(i) The examination board constituted by the NTR University of Health Sciences shall get the entrance test papers valued either manually or mechanically and prepare a common Master Merit List of the candidates qualified on the basis of marks obtained in the entrance test subject to Sub-rule (ii). The marks of the candidates in order of merit and in order of Hall Ticket numbers will be displayed on the notice boards of the colleges and in the Office of the NTR University of Health Sciences.
(ii) In case of equality of marks in the entrance test, the total percentage of marks in MBBS excluding Pre-professional course Non-Medical subjects of 1st year integrated MBBS course up to 2 decimal places shall be taken into consideration for fixing the merit of the candidates. If the entrance test marks and MBBS marks are equal, marks obtained in the concerned subject in MBBS shall be taken into consideration if the candidates opt for the same subject.
(iii) Any candidate who wishes to have re-totalling of marks, should pay a fee specified by the UHS to enable the University to verify the same. Such application shall be submitted within 5 days after announcement of the results to the Registrar, University of Health Sciences, Vijayawada.
23. On a careful reading of Sections 3(1) and (2) of the Act and Rules 3, 7, 8 and 9 of the Rules, it is clear that admission into P.G. Medical Courses shall be made only on the basis of the ranking assigned in the common entrance test conducted by the 1st respondent-University.
24. It is pertinent to note that whereas Rule 3(1) of the Rules provides for reservations in consonance with the Constitutional provisions, Rule 3(2) provides for an additional reservation for 'in-service candidates' i.e., 15% of seats in Clinical subjects and 30% of seats in non-clinical subjects in each group for Degree and Diploma Courses separately in each category under service quota. It is also relevant to note that 'in-service candidate' has been specifically defined under Explanations I & II of Rule 3(2). Whereas Explanation I states that 'in-service candidate' means a candidate who has put in two years of continuous regular tribal service or three years of continuous regular rural service or six years of continuous regular service, Explanation II defines what is meant by "tribal service", "rural service" and "continuous regular service".
25. Thus the requirements to be satisfied to claim a seat under the service quota under Rule 3(2) are very specific. It is to be noted that though Explanation I read with Explanation II prescribe minimum service to be put in by a candidate to be eligible for consideration under service quota, none of the Rules either expressly or by necessary implication provides that length of service shall be taken into consideration for selections among the in-service candidates. On the other hand, Rule 3 (2) expressly states that "candidates selected on merit in respective categories shall be counted against service quota". Thus it is clear that the Rule making authority while providing "service quota" intended that merit alone should be taken into consideration as basis for the selection even among the in-service candidates.
26. However, the learned Counsel for the petitioner contended that since the reservation for in-service candidates in P.G. Medical Courses has been provided with an object of ensuring better health care for people of the State, failure to give weightage to the length of service, would frustrate the very object of service quota. Therefore, according to the learned Counsel so far as selection among in-service candidates is concerned, and particularly where comparative merit between the competing in-service candidates is the same, length of service alone should be taken as the criteria for resolving the tie. I am unable to agree with the said contention. As expressed above, the Scheme of the Act and the Rules makes it very clear that merit ranking assigned in the entrance test alone shall be made the basis for selections to the Medical Courses even against the seats reserved under Rule 3 (1) and (2) and by no stretch of imagination it can be said that there is any deviation from the said criteria so far as the selections under service quota are concerned.
27. It may be true that the object of providing reservation for in-service candidates is to enhance and improve the quality of health care to the people of the State, but I am unable to understand how the object would be frustrated if a more meritorious candidate with required minimum service is preferred to a less meritorious candidate with long service. Any in-service candidate who improves his qualification will be in a position to offer better service to public. There is absolutely no reason to hold that a candidate shall be preferred merely on the ground of his long service. Therefore, viewed from any angle, I do not find any merit in the contention raised by the learned Counsel for the petitioner.
28. The next contention of the learned Counsel for the petitioner is that while resolving the tie between two candidates who secured equal marks in the entrance test, the 1st respondent ought not to have taken into consideration the performance of the candidates in MBBS. Whereas the learned Standing Counsel contends that the procedure adopted by the 1st respondent-University in resolving the tie is strictly in compliance with Rule 9 (ii) of the Rules, the learned Counsel for the petitioner vehemently contended that the procedure prescribed under Rule 9 (ii) being contrary to the Post-Graduate Medical Education Regulations, 2000 cannot be adopted for resolving the tie.
29. The learned Counsel for the petitioner while elaborating his contention submitted that the Post-graduate Medical Education Regulations, 2000 made by the Medical Council of India in exercise of power conferred under Section 33 of the Indian Medical Council Act, 1956 are binding and prevail over the Rules made under A.P. Act 5 of 1983. He contends that as per Regulation 9 (2) (iii) of the P.G. Medical Education Regulations, 2000 (for short "Regulations under MCI Act") the academic merit of competing candidates can be determined on the basis of performance in MBBS examinations only where the candidates passed such examinations from the same University. He contends that since the petitioner and the 4th respondent passed MBBS from different Universities, their performance in MBBS cannot be compared for resolving the tie and such procedure would be contrary to Regulation 9(2)(iii) of the Regulations under MCI Act.
30. Regulation 9 of the Regulations under MCI Act runs as follows:
9. Selection of Post-graduate students :--(1) Students for Postgraduate Medical Courses shall be selected strictly on the basis of their academic merit.
(2) For determining the academic merit, the University/Institution may adopt any one of the following procedures both for degree and diploma courses:-
(i) On the basis of merit as determined by a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of Universities in the same State; or
(ii) On the basis of merit as determined by a centralised competitive test held at the national level; or
(iii) On the basis of the individual cumulative performance at the first, second and third MBBS examinations, if such examinations have been passed from the same University; or
(iv) Combination of (i) and (iii)"
31. As can be seen Regulation 9(2) states that for determining the Academic merit the University/Institution may adopt any one of the procedures prescribed thereunder both for degree and diploma courses. As rightly submitted by the learned Counsel for the respondents the 1st respondent-University for the purpose of determining the academic merit adopted the procedure prescribed under Regulation 9 (2) (i) which provides for a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of Universities in the same State,
32. Admittedly the 1st respondent conducted entrance test for admission to P.G. Medical Courses. However, the question is with regard to the procedure to be followed when two candidates secured equal marks in the said entrance (competitive) test. Regulation 9 of the Regulations made under MCI Act is totally silent about such situation.
33. Neither Section 3 nor any provision of AP Act 5 of 1983 indicated any procedure to resolve a tie between two or more candidates of equal merit, who seek admission to P.G. Medical Courses. Therefore, Rule 9 (ii) of the Rules has been prescribed by the rule making authority in exercise of power under Section 15 of A.P. Act 5 of 1983 to fill in the gap to deal with a contingency where two or more candidates secured equal marks in the entrance test.
34. As can be seen Rule 9 (ii) of the Rules specifically provided that in case of equality of marks in the entrance test the total percentage of marks in MBBS shall be taken into consideration for fixing the merit of the candidates and if the entrance test marks and MBBS marks are equal, marks obtained in the concerned subject in MBBS shall be taken into consideration if the candidates opt for the same subject. The Rule is very specific and there is absolutely no ambiguity. It is pertinent to note that the petitioner has not chosen to assail the validity of the said Rule.
35. As a matter of fact, a Division Bench of this Court in Dr. B.G.V. Giridhar v. Dr. Ch. Ramakriskna Rao, (DB), while dealing with an identical question relating to Super Specialties considered the validity of Rule 7(3) of A.P. Regulation of Admission to Super Specialties in the Medical Colleges Rules, 1983 which is in pari materia to Rule 9(ii) of the Rules in question in the present case. The contention raised in the said case is that the said Rule 7(3) is arbitrary and illegal and ultra virus the Act 5 of 1983. The Division Bench held that the Rule making authority has enacted Sub-rule (3) of Rule 7 to fill in the gap to deal with a possible contingency and such a power is undoubtedly available to the Rule making authority by virtue of power conferred under Section 3 and Sub-section (1) of Section 15 of the Act. It is further held that if such a power is not conceded to the Rule making authority the method of selection and admission envisaged under Section 3 of the Act could not be given effect in the event of two or more students securing same marks in the entrance test. The Division Bench also observed that the performance of the applicant in the respective subject in MBBS Course is undoubtedly a relevant consideration to assess his relative merit for the purpose of admitting him to the Super Specialty.
36. In view of the above observations made by the Division Bench there cannot be any doubt whatsoever that the performance in MBBS is relevant for resolving the tie between two candidates who secured equal marks even under service quota. The said procedure prescribed under Rule 9(ii) of the Rules cannot be said to be in conflict with either the Regulations made under the MCI Act or the provisions of the A.P. Act 5 of 1983.
37. Obviously the 1st respondent-University has followed the procedure under Rule 9(ii) of the Rules for resolving the tie between the petitioner and the 4th respondent. As rightly submitted by the learned Counsel for the respondents Clause (iii) of Regulation 9 (2) of the Regulations under MCI Act has no application to the facts and circumstances of the present case. Consequently, it is not necessary to go into the controversy whether the fact that the petitioner and the 4th respondent passed MBBS from different Universities is of any consequence for resolving the tie between them. For the same reason, I do not find any merit in the contention raised by the petitioner that the 4th respondent cannot be given admission in preference to the petitioner since the 4th respondent was a referred candidate in MBBS Course.
38. The learned Counsel for the petitioner raised yet another contention that even assuming that the petitioner is not eligible for consideration as a local candidate of S.V. University area under service quota, since no seats are set apart against 15% unreserved for in-service candidates, the petitioner is deprived of a seat at least in the other Universities local areas in the 15% unreserved seats and the said action of the 1st respondent is liable to be declared as arbitrary and illegal.
39. In pursuance of the Order of this Court the learned Counsel for the 1st respondent - University has produced the list of the candidates selected for admission into MD (General Medicine) in Andhra University and Osmania University area Colleges. The said list shows that in Andhra University area two seats earmarked against the 15% unreserved seats were allotted to two OC non-local candidates who secured the ranks of 55 and 57 respectively. Similarly, so far as Osmania University area is concerned, two seats earmarked against 15% unreserved seats were allotted to non-local candidates out of whom one candidate belongs to BC category and he secured rank No. 1 and the other candidate belongs to OC category who secured rank No. 15. Admittedly all the said four candidates secured much higher ranks than the petitioner. It is true that the two seats each earmarked against 15% unreserved in the said University areas do not include candidates under service quota. However, it cannot be said that the admission process is vitiated on that ground. The learned Counsel for the petitioner placed much reliance upon the decision in Registrar, NTR University of Health Sciences v. G.B. Rajendra Prasad, AIR 2000 AP 308, wherein a Full Bench of this Court held that the reservations in favour of SCs, STs and BCs cannot be denied in respect 15% of unreserved seats under the Presidential Order. But the ratio laid down in the said case with specific reference to SCs, STs, and BCs on the basis of Para-10 of the Presidential Order which refers to reservations in favour of women, socially and educationally backward classes of citizens, the SCs and STs, in my considered opinion, cannot be extended to reservation for in-service candidates prescribed under Rule 3(2) of the Rules under A.P. Act 5 of 1983. The reservation prescribed for in-service candidates under the Rules is a facility conceived by the State Government may be with an object to enhance and improve the quality of health care to the people of the State. Therefore, the ratio in G.B. Rajendra Prasad's case cannot be applied to the case on hand and it cannot be said that it is mandatory to work out the reservations prescribed for in-service candidates against the 15% unreserved seats.
40. At any rate, even in G.B. Rajendra Prasad case (supra), the Full Bench held that if the number of available seats in a particular discipline and having regard to the obligation of the reservation of the candidates for local area is less in a given situation, no reservation for SC, ST and BC etc., is possible in respect of the 15% of unreserved seats and that the non-accommodation of such class of reserved candidates would not be the consequences of any overt illegality, non-conformity with the reservation policy of the State or discrimination on the part of the University, but a consequence of factual circumstances obtaining in such a course or discipline. As can be seen in the instant case the seats against un-reserved 15% in MD (General Medicine) are only two and the Selection Committee constituted by the 1st respondent-University while making selections thought it fit to allot the said seats strictly in accordance with merit ranking.
41. It is well settled that in the matters of admission to educational courses this Court will not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India unless the procedure followed is arbitrary or vitiated by any patent material irregularity or where the mala fides attributed are established. In the case of Admission Committee, C.I.I. 1995 v. Anand Kumar, , the Supreme Court observed that in the absence of any mala fide or any other supporting material, the Court would have preferred to accept the version of the Selection Committee and further added that calling upon the Selection Committee to answer and justify each and every selection made, in the absence of any mala fides is to cause impossible burden upon it.
42. For the aforesaid reasons, I do not find any merit in the contentions raised by the petitioner. Accordingly the Writ Petition is dismissed. No costs.