Andhra HC (Pre-Telangana)
Dr. B. Kaladhar And Ors. vs Government Of A.P., Health, Medical And ... on 21 November, 2005
Equivalent citations: 2006(1)ALD1, 2005(6)ALT723, AIR 2006 (NOC) 85 (ANDH. PRA.) (FULL BENCH)
Author: L. Narasimha Reddy
Bench: J. Chelameswar, Goda Raghuram, L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. While most of the principles relating to Hindu Law were decided in the cases which arose under the Income Tax Act, those relating to reservation of seats in educational institutions fall for consideration mostly in cases involving admission into post-graduate and under-graduate medical courses. With new categories of reservation being added year after year, to the existing ones, the matter is yet to reach finality. In the State of Andhra Pradesh, in addition to providing reservations under Article 15 (4) of the Constitution of India, those in favour of physically handicapped candidates, service candidates and women, the State is under obligation to ensure reservation as per the orders issued in exercise of power under Article 371-D of the Constitution of India, in favour of local candidates. Working out these reservations, some vertical, some horizontal, and yet others, in a way, diagonal, naturally poses the problems, inherent in it. The importance and primacy of the courses naturally force the aggrieved candidates to approach the Courts.
2. For the current academic year, the process of admission into post-graduate medical courses into the institutions in the State commenced with the issuance of G.O.Ms.No. 44, HM & FW (E2) Department, dated 25-02-2005. One salient feature of this G.O. was that, it provided for arrangement of all the post-graduate courses in alphabetical order. Thereafter, the colleges, in which the courses were available, were required to be arranged in alphabetic order, separately, for the three University areas, representing three parts of the State. Against the seats so arranged, the roster points were required to be indicated. Out of every 7-points in the list, 6 were to be earmarked for local candidates and the 7th was to be treated as unreserved. This measure was resorted to, as a compliance with the Presidential Order issued under Article 371-D of the Constitution of India. The entire exercise was called as "seat matrix". It is not necessary to refer to the other aspects of the G.O.
3. Complaining that the method of reservation provided for in the matter of implementation of the Presidential Order was not proper, and pointing out certain other defects, a batch of writ petitions was filed before this Court. A Division Bench, which initially heard the same, felt it proper that the matter be heard by a Full Bench, since interpretation of several judgments and provisions was involved. Thereafter, a Full Bench heard the batch and rendered its judgment in Md. Abdul Azeez Asad v. State of A.P., (F.B.). The procedure adopted in G.O.Ms.No. 44, dated 25-02-2005 for implementation of the Presidential Order was held to be illegal and unconstitutional. The reservations that were provided for, in favour of physically handicapped candidates and women under the said G.O. were found to be in order. Other questions, that were raised before it, were left open.
4. In view of the judgment of the Full Bench in Md. Abdul Azeez Asad's case the Government framed a new set of admission Rules in G.O.Ms.No. 123, HM & FW, (E2) Department, dated 23-04-2005. An altogether different admission procedure was adopted. Broadly stated, it provided for preparation of 100-point roster, which was adopted from the A.P. State and Subordinate Services Rules, (for short 'the Rules'), in all respects, except for a minor variation, as to interchange of points 1 and 3. The points in the roster were identified to comply with the reservations, in favour of SC, ST and BC candidates. A semblance of horizontal reservation was also ensured, earmarking the vacancies for women, physically handicapped and service candidates. The reservation in favour of local candidates was meant to be followed by ensuring 85% of the vacancies in favour of local candidates.
5. W.P.No. 9938 of 2005 and some other writ petitions are filed challenging the validity of G.O.Ms.No. 123, dated 23-04-2005. The complaint of the petitioners therein is that though the Full bench of this Court in Asad's case (1 supra), found fault with the pattern of reservation in favour of local candidates alone, and upheld the procedure in all other respects, the Government brought about an altogether new scheme of admissions. Their main complaint is that by stipulating the 100-point roster, the State of A.P. and N.T.R. University of Health Sciences have violated the principle laid down by the Supreme Court in Ritesh R. Sah v. Dr. Y.L. Yamul and Ors., . It was urged that the mode of admissions adopted by the respondents would result in, the meritorious candidates belonging to reserved categories, being counted against the seats reserved in favour of the respective categories. According to them, this leads to reduction in the number of seats for candidates belonging to the respective categories, or denial of seats in important courses to substantial number of them. Certain other points, such as the non-publication of the G.O., violation of business rules, the pace at which, the rules were framed and the admissions were made; are also urged. The submissions have also touched those aspects, which were dealt with by the Division Bench.
6. Even while the admissions in accordance with the procedure prescribed under G.O.Ms.No. 123 were in progress, the Government issued G.O.Ms.No. 167, dated 26-05-2005, replacing the procedure prescribed under G.O.Ms.No. 123, to a substantial extent, particularly in the context of the method of admission of candidates belonging to reserved categories. Another batch of writ petitions came to be filed assailing the validity of this G.O. Both the batches of writ petitions was heard by a Division Bench comprising two of us, (J, Chelameswar and G. Raghuram, JJ.). Several contentions were urged touching on various aspects, such as the timing and manner of publication of G.O.Ms.No. 167; permissibility of modification of Rules, when the admissions were already in progress; competence of the Government to alter the Rules of Admissions with retrospective effect, and sanctity of the dates stipulated by the Hon'ble Supreme Court in its judgment in Medical Council of India v. Madhu Singh, . Arguments were also advanced about the purport and application of the principle laid down by the Supreme Court in Ritesh Sah's case (2 supra).
7. Through a detailed order dated 05-08-2005 the Division Bench took the view that the admissions, made in accordance with the procedure stipulated under G.O.Ms. No. 123 have proceeded to a substantial extent, and the students admitted into various courses have acquired valuable rights, it was observed that it is impermissible for the Government to alter the rules of admission, once the process has commenced. The Division Bench has also expressed the view that the Rules of admission cannot be altered with retrospective effect and that by the time the Rules in G.O.Ms.No. 167 were to be implemented, there was no valid publication. So far as the purport and application of principle laid down in Ritesh Sah's case (2 supra) is concerned, the Division Bench felt that the judgment of a Full Bench of this Court, in Koganti Jaya Krishna and Anr. v. State of A.P., (F.B.). would have a bearing on the issue, and is better that the matter be heard by a Bench of appropriate strength, on that limited aspect. The relevant portion of the order of reference reads as under:
"We consider it appropriate that the issue whether the principle enunciated in Ritesh Sah's case (2 supra) is relevant and applicable in the context of postgraduate medical admissions, independent of the implications of the Presidential Order; and whether a general seat declined by a meritorious reserved candidate who opts for a reserved seat invariably be reserved for being filled up by a lower ranked student belonging to the same reserved class are matters which require a consideration by a Bench of appropriate strength".
In view of the same, this Full Bench was constituted.
8. Though number of writ petitions have been listed before the Bench; for all practical purposes, the consideration of the matter is restricted to the one raised in W.P.No. 9938 of 2005, that too, in relation to the application of the principle laid down by the Supreme Court in Ritesh Sah's case (2 supra).
9. In their affidavit and additional affidavit, the petitioners have raised several contentions, while assailing the G.O.Ms. No. 123. As observed earlier, several aspects of the matter have al ready been dealt with, by the Division Bench, in the order, dated 5.8.2005. So far as the present context is concerned, the petitioners contend that the procedure adopted by the respondents under G.O.Ms.No. 123, is illegal and unconstitutional. They point out that in Asad's case (1 supra), the Full Bench approved the method of admissions, stipulated under G.O.Ms.No. 44, in all respects, except for the manner of reservation in the Presidential Order in favour of the local candidates, and instead of curing the said defect, the respondents have brought about a new procedure of admission, contrary to settled principles.
10. It is contended that the adoption of 100-point roster would defeat the very spirit of reservation, in favour of socially backward classes, and that several seats, which were earmarked for reserved candidates, have been knocked away by the meritorious reserved candidates belonging to backward sections of the society, though they were entitled to be allotted seats in the Open Category. It is urged that on account of the defective and unlawful procedure, adopted by the respondents, substantial number of seats were denied to the reserved categories. Illustrations were supplied with reference to some candidates and annexures were filed, depicting the various aspects of the matter.
11. In the counter affidavit filed on behalf of the respondents, the allegations of the petitioners were denied. It is stated that proper care has been taken even under G.O.Ms. No. 123, to ensure that not a single seat is denied to the reserved categories, in the matter of filling of the seats by adopting roster.
12. Sri P.P. Rao, learned Senior Counsel, led the arguments on behalf of the petitioners. He commenced his submissions, by raising an objection, as to the validity of order of reference. He contends that it was not open to the Division Bench, to doubt the correctness of the judgment of Full Bench in Koganti Jaya Krishna's case (4 supra). Another facet of the submissions of the learned Senior Counsel, on this aspect, is that even otherwise, one Full Bench cannot decide the correctness of the judgment rendered by the other Full Bench. He contends that any such attempt would amount to judicial impropriety. In support of this submission, he relied upon the judgments of the Supreme Court in Pradip Chandra Parija v. Pramod Chandra Patnaik, , in Union of India v. Godfrey Philips India Ltd., , and certain other decisions.
13. Sri Rao, had analyzed the principle laid down by the Supreme Court in Ritesh Sah's case (2 supra), and submits that an admission into professional colleges, in the context of working out reservations, consists of three stages, viz. selection against a seat in the course, choice of speciality and choice of institution. He submits that the principle of reservation has to be followed in its letter and spirit, and that the character of the seat remains the same, throughout these stages. He submits that a seat, which had accrued to a reserved candidate in any of these stages, cannot be denied to the category to which he belongs, under any circumstances. By placing reliance upon several decided cases, learned Counsel contends that reservation in favour of a particular category under Article 15(4) of Constitution of India, is in addition to what the said category of candidates get in the ordinary course. It is pleaded that it is permissible in law, to undertake an internal adjustment of priorities, among the candidates belonging to a particular category, irrespective of the fact whether some of them got the seats in the Open Category, and the others through reservation. Sri Rao concluded his submissions, by stating that there is no conflict between the judgments of the Supreme Court in Ritesh Sah's case (2 supra) and State of Bihar v. M. Neethi Chandra, and that it has been held so by the Supreme Court in Anurag Patel v. U.P. Public Service Commission, ..
14. Sri Ravi Varma Kumar, learned Senior Counsel appeared in W.P.No. 21330 of 2005, filed by Mahatma Jyothi Rao Pule Institute of Social Justice. He submits that framing of fresh set of rules in G.O.Ms.No. 123 was totally unwarranted, when almost the entire G.O.Ms.No. 44, except for a minor aspect, was upheld by a Full Bench of this Court. Learned Senior Counsel would submit that by taking recourse to the roster system, the respondents have watered down the entire principle of reservation, and that it has resulted in loss of about 30 seats to the reserved categories in Osmania University alone. He further contends that in the process of filling the seats through roster, the respondents have done away with the reservation of seats, in favour of various categories in individual courses, and thereby, seats of almost insignificant value and importance are left for the choices of the reserved categories. He relied upon the judgment of the Supreme Court in R.K. Sabharwal v. State of Punjab, and the one in Indira Sawhney v. Union of India, 1992 Supp. (3) SCC 217. Learned Counsel further points out that though the respondents have adopted the roster prescribed under Rule 22 of the Rules, they deviated from the requirement under the other provisions, thereof.
15. Sri Bojja Tarakam, learned Senior Counsel, has apprised this Court, of the various factual as well as legal aspects. He made elaborate submissions on different aspects, including those covered by the other two Senior Counsel, who argued before him. He has taken us through the entire record, and tried to demonstrate that the procedure stipulated in G.O.Ms.No. 123, runs contrary to the constitutional mandate of protecting the interests of weaker sections. Learned Senior Counsel submits that the pattern of reservation in G.O.Ms.No. 44, in favour of backward classes, provided for under Article 15(4), was not found fault with by the Full Bench in Asad's case (1 supra), and that there were no bona fides, on the part of the respondents, in replacing the entire system of admissions. He contends that G.O.Ms. No. 123, particularly Clause-III thereof, is in conflict, with the principle laid down by the Supreme Court in Indira Sawhney's case and R.K. Sabharwal's case (9 supra) etc., apart from offending the principle of equality and requirement of providing equal opportunity. Sri Tarakam submits that once the respondents have treated individual disciplines or specialities at post-graduate degree and diploma levels, as separate "courses of study", for the purpose of implementation of Presidential Order, there was no justification for them, in treating all the courses, as one unit at degree level, and Another unit at diploma level, for the purpose of implementing the reservations under Article 15(4) of the Constitution of India.
16. Without prejudice to his submissions, as to the legality and permissibility of adoption of roster system, learned Senior Counsel submits that the roster adopted by the respondents, is contrary to the one prescribed under Rule 22 of the Rules. He elaborates by stating that Rule 22, as well as the roster appended to it, was framed in exercise of power under proviso to Article 309 of the Constitution of India, and it was impermissible for the respondents to alter the same, even if it was restricted to the interchange of Points 1 and 3. A further submission is made to the effect that the roster ought not to have been operated from the starting point every year and that the same would result in denial of seats, in important courses, to the candidates belonging to reserved categories.
17. Learned Senior Counsel submits that the Government prescribed the procedure, by issuing various orders, requiring that the candidates belonging to Open category must be called first, and it is only thereafter, that the admissions against reserved seats must be taken up, and contrary to the same, G.O.Ms.No. 123 prescribed a different procedure. He submits that such a procedure is detrimental to the interests of the reserved candidates. He contends that the said procedure has resulted in denial of substantial number of seats for candidates, belonging to reserved categories. He further submits that the respondents did not ensure reservation under the Presidential Order, properly.
18. Sri Tarakam had also made submissions, touching on the procedural aspects of G.O.Ms.No. 123. According to him, the entire exercise of issuance of G.O. smacks of arbitrariness and reflects mala fides. He submits that the judgment of the Full Bench in Asad's case (1 supra) was delivered on 21-4-2005, and within two days thereafter, i.e. on 23-4-2005, G.O.Ms.No. 123 was issued. He points out that 24-4-2005 was a Sunday, and on the next day itself, the counseling was undertaken, even before the G.O. was published. Another submission of the learned Counsel is that the file was not routed through the Department of Social Welfare, and that the State Government violated the business rules, while issuing the G.O. He too has analyzed the principle laid down by the Supreme Court in various cases, such as, Indira Sawhney's case, (10 supra) R.K. Sabharwal's case (9 supra), Ritesh Sah's case, (2 supra), M. Neethi Chandra's case (7 supra), and Anurag Patel's case (8 supra).
19. A serious objection was raised by him, to the attempt of the Government in trying to sustain G.O.Ms.No. 123, as well as G.O.Ms. No. 167, in one and the same breath. During the course of his arguments at various stages, he pointed out that the State cannot be permitted to plead that it has the unfettered discretion, in the matter of providing reservation. By making reference to Articles 46, 15(4) and 16(4) of the Constitution of India and certain decided cases, he contends that it is the obligation of the State to ameliorate the conditions of the backward sections. He submits that while the requirement under Article 16(4) is confined to ensuring adequate representation, an additional obligation is cast upon the State under Article 15(4), to ensure advancement of the said categories. He filed written arguments also.
20. Learned Advocate General dealt with the various aspects argued by the learned Senior Counsel, referred to above. He contends that the discretion of the Government in the matter of providing reservation, stipulating the extent thereof, and adopting the principle in the matter of enforcement of the same, is unfettered. He contends that in the light of the judgment of the Full Bench in Asad's case (1 supra), the Government took immediate steps to proceed with the admissions, so that the deadline prescribed by the Supreme Court in Madhu Singh's case (3 supra) is not violated, and lest, the 700 and odd seats in the Post Graduate Medical courses go waste.
21. Learned Advocate-General points out that the G.O. was published, as provided for in law, before it was implemented. He submits that having regard to the multidimensional reservations and limited number of seats available in each speciality, the Government adopted the roster system, and that such a procedure was approved by this Court, in its judgment in A. Rajakaran Reddy v. N.T.R University of Health Sciences, . According to him, the roster would ensure the most objective and transparent way of admissions and proper implementation of the reservations in favour of the respective categories. He contends that the roster, which is part of Rule 22 of the Rules, was adopted, for the sake of convenience, and by no stretch of imagination, the exercise of admissions can be treated as a function, traceable to the power under proviso to Article 309 of the Constitution of India. On this premise, he submits that the question of alteration of the roster, prepared under the said provision, in exercise of executive powers of the State, does not arise.
22. As regards the submission of Sri Tarakam, learned Senior Counsel, that the Government cannot attempt to sustain. G.O.Ms.Nos. 123 and 167, at the same breath, the learned Advocate-General submits that the endeavour of the Government was only to improve upon the existing situations. According to him, the procedure prescribed under G.O.Ms.No. 123 does not suffer from any basic infirmity, and G.O.Ms.N.167 was issued, only with a view to improve upon the situation, and there does not exist any contradiction in terms, in the strict sense. On the same aspect, he submits that depending upon the view that may be expressed by the Full Bench, the Government may implement either of them, or formulate a new one, for the admissions in the next academic year.
23. As for the principle laid down by the Supreme Court in Ritesh Sah's case (2 supra), learned Advocate General submits that though it applies only to uniform courses, such as MBBS, and though it has no application for the situations, where roster is adopted, the Government incorporated Clause-III(iv) in G.O.Ms.No. 123, to enforce the spirit underlying the said principle. It is stated that such number of reserved seats in the roster, as were occupied by meritorious candidates, belong to reserved categories, were made good of, and replenished. He raised an objection as to the locus standi of the petitioners, on certain aspects, such as interchange of roster points. He contends that operation of roster point in continuation, year after year, is required only where the cycle of a roster is not complete in one year, and not where many cycles are completed, as in the instant case. It is also his case that the definition or purport of "course of study" need not be the same for reservations under the Presidential Order, on the one hand, and those under Article 15(4) of the Constitution of India, on the other hand.
24. Some students who were admitted into different courses, got impleaded themselves in the writ petitions, which are filed challenging the G.O.Ms.No. 123. Sri Nooti Rama Mohana Rao, learned Counsel appearing for such candidates, had presented an analysis flowing from implementation of G.O.Ms.No. 123, and made submissions on questions of law. According to the learned Counsel, the operation of roster did not result in denial of even a single seat, either to the meritorious candidates in the reserved categories, or to the candidates of those categories, who are entitled to be admitted, on the basis of the reservation. He submits that by their very nature, the priorities of courses differ from year to year, or from candidate to candidate, and it is difficult to imagine that a particular course in any particular college had any definite assessable importance, in the context of being chosen by the candidates.
25. Sri Ram Mohan Rao submits that the contention advanced on behalf of the writ petitioners that a seat offered to a reserved candidate, occurring in Open Category, must invariably pass on to the other candidate of the same category, irrespective of his merit, in the event of interchange of choices to them, is not at all supported by the judgment of the Supreme Court in Ritesh Sah's case (2 supra), and that such a contingency does not arise where roster is followed. Learned Counsel submits that the record demonstrates that though several seats were offered to the reserved candidates, by cancelling admissions of the Open Category candidates against them, the former did not turn up and many seats remained vacant. He submits that in its letter and spirit, the principle laid down in the said case stands honoured, by virtue of Clause III(iv) of G.O.Ms.No. 123. Learned Counsel placed reliance upon several judgments of Supreme Court and this Court, in support of his contentions.
26. At the outset, the submissions made by Sri P.P. Rao, learned Senior Counsel for the petitioners, as to the validity of the reference, need to be dealt with. He urged certain important contentions, dealing with the course to be adopted by the Courts whenever they are faced with precedents, and there exists any element of doubt as to their correctness or difference of opinion.
27. In a system governed by the principle of stare decisis, the judgment of the superior Courts as well as those of the same Court rendered by the Benches of higher strength are binding, and discipline demands that they be followed without any demur. The ultimate object is to ensure consistency and to eliminate the element of subjectivity in the matter of adjudication, to the extent possible. It is apt to refer to the various decisions cited by the learned Senior Counsel in this regard.
28. In State of Tripura v. Tripura Bar Association, (1985) 5 SCC 637 and Godfrey Philips' case (6 supra), the Supreme Court held that a Bench of the High Court must follow the judgment rendered by a co-ordinate Bench, and in case it doubts the correctness of such a judgment, the only course open to it, is to refer to a Larger Bench. This principle was held to be applicable even to Administrative Tribunals. (See Sub-Inspector Rooplal v. Lt. Governor, . The same principle was enunciated as regards the Benches in the Supreme Court, vide its judgment in Pradip Chandra's case (5 supra). In that case, a two-judge Bench of the Hon'ble Supreme Court doubted the correctness of the judgment rendered by a Bench of a three learned judges straightaway referred the matter to a Bench of five learned judges. The Bench of five Learned Judges to which it was referred, took exception to such a course, and directed that the matter be heard by a Bench of three learned Judges.
29. Hardly there exists any doubt that the judgments of the Supreme Court, irrespective of the number of judges comprising of the Bench, are binding on the High Courts. The Supreme Court reiterated the same in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engg. Works (P) Ltd., .. In Suganthi Suresh Kumar v. Jagdeeshan, . the Supreme Court held that the High Court or any other subordinate court cannot by-pass the judgment of the Supreme Court even by invoking the principle or doctrine of per incuriam. There may be an occasion for the Supreme Court, in an appropriate case to restate, by stipulating the guidelines to invoke the doctrine. However, the other principles referred to above are of universal application and there cannot be any second opinion about the same. The learned Senior Counsel sought to apply the same in the context of the reference made to this Full Bench.
30. In this regard, it needs to be observed that the Division Bench that heard these very matters had in fact, decided certain points of controversy such as, nature of rights of the persons admitted to various courses in accordance with the procedure prescribed under G.O.Ms.No. 123, impermissibility of alteration of the rules of admission after the commencement of the admission process. Strenuous contentions were advanced by the learned Counsel for the parties, as to whether the principle laid down by the Supreme Court in Ritesh Sah's case (2 supra) would apply to the situation, brought about by G.O.Ms.No. 123. Heavy reliance was placed upon the said judgment as well as the one rendered by a Full Bench of this Court Koganti Jayakrishna's case (4 supra). The Division Bench did take note of the fact that the subject matter of Koganti Jayakrishna's case (4 supra) was, the admissions into engineering courses, where, the "course of study" was co-extensive with the one adopted for the purpose of Article 371-D. An ostensible and alleged difference between the principles laid down by the Supreme Court in Ritesh Sah's case (2 supra) and M. Neethi Chandra's case (7 supra) was also projected before it. The reason for Division Bench, to refer the matter to a Larger Bench was that Koganti Jayakrishna's case (4 supra) was decided by a Full Bench. It is rather difficult to discern that the correctness of the judgment in Koganti Jayakrishna's case (4 supra) was doubted by the Division Bench, which heard these matters. Further, G.O.Ms.No. 123 brought about a new method of admissions, by, adopting a 100-point roster and the necessity arose to examine the matter with reference to the settled principles of law. In that view of the matter, while agreeing with the principles enunciated by the learned Senior Counsel, with due respect to him, we are of the view that the occasion to apply them does not arise or exist in this case.
31. The purport of submissions on merits, made by the learned Counsel for the parties is fairly wide. However, the scope of reference to the Full Bench is restricted. While the Court feels the obligation to deal with the contentions advanced on behalf of the parties, the consideration, however, must be focused to the point referred to it. The relevant facts have been narrated within the permissible limits of elaboration. The important questions that fall for consideration before us are,
(a) whether the principle laid down by the Ritesh Sah's case (2 supra), is applicable to the admissions to Post Graduate Medical courses, in the context of the procedure stipulated under G.O.Ms.No. 123, and if so,
(b) whether it has been followed by the respondents.
32. It is not necessary to trace the history of the reservations in favour of socially and economically backward classes. Even before the advent of Indian Constitution, the protective measures in the form of reservation in favour of weaker sections existed, though in different form. One of the fundamental rights guaranteed under the Constitution of India is right to equality under Articles 14 to 16. Article 14 mandates that the State shall not deny equality before law and equal protection of laws to any person within the territory of India. Article 16(1) directs that the State shall provide equal opportunity to all the citizens in the matters relating to employment or appointment to any office under the State. Article 15(4) enables the State to make special provision for advancement of socially and educationally backward classes of citizens, apart from SCs and STs. Article 16(4), is almost in the same terms, in the matter of employment to any office under the State.
33. A view point emerged and remained for quite some time, to the effect that Articles 14 and 16 (1) guarantee equality, whereas Articles 15(4) and 16(4) are exceptions to it. After taking note of the obligation of the State under Article 46 of the Constitution of India and the historical background of concept of reservations, the Supreme Court held in State of Kerala v. N.M. Thomas, that reservation is not an exception to the principle of equality. It was pointed out that the device of reservation, on the other hand, brings about a semblance of equality, by removing the handicap, suffered by the persons belonging to the weaker sections. Reference can also be made to the judgment of the Supreme Court in A.B. S.K. Sangh (Rly.) v. Union of India, . It is not necessary to delve deep into this aspect, since the matter is beyond any pale of controversy.
34. In the matter of implementation of reservations, several problems arose; not much as to the necessity or obligation of the State, to provide reservation, but in relation to the unreserved seats in the relevant courses. By their very nature, the unreserved seats or posts are to be filled, purely on the basis of merit. It is not uncommon that the candidates belonging to reserved categories secure admission and employment against Open Category seats or posts. In Indira Sawhney (10 supra) and R.K. Sabharwal (9 Supra), the Supreme Court held that the seats or posts secured by candidates belonging to reserved category in the open competition cannot be reckoned against the number of seats or posts, reserved for that category. In the matter of admissions, the application of the said principle does not pose any serious problem or controversy as such, as long as the seats in a particular educational institution are uniform, in all respects. Where, however, the seats are of varying importance and are spread over in the colleges of different standards, certain complications do arise.
35. Let this illustration be examined. Courses I to V of a level of study are available in colleges A, B, C and D, in the State. 40% (sic. 60%) of seats in each of the courses are unreserved. 10% is the reservation in favour of Schedule Castes and 30% for other categories. Let it be assumed that college 'A' has the faculty and infrastructure of comparatively high standards and that Course-Ill is in greater demand. If the admissions to all the four colleges are undertaken through a common counselling, it may so happen that candidate 'X', who belongs to S.C., is able to secure admission in the 60% of open category seats in Course-I, in college 'B'. He is not satisfied with it. If his case is considered as a reserved candidate, he would be able to secure seat in Course-Ill in college 'A'. This would result in displacement of candidate 'Y', who is less meritorious and belongs to the same category, but is entitled to be admitted against the said seat, on the basis of reservation. Two situations can be contemplated in such an event: (a) If the candidate 'X' is precluded from switching over to reserved seats, the merit secured by him turns out to be a factor, disentitling him to a seat of his choice, (b) If he is permitted to choose a seat in the reserved category, to that extent the category as a whole would stand to lose one seat, and denial of admission to 'Y'. It was. in a situation nearer to this, in relation to medical admissions, that the Supreme Court examined the matter in Ritesh Sah's case (2 supra). In that case, there was only one variable factor viz., college and not the other variable i.e. the course of study. After referring to its judgment in Indira Sawhney's case (10 supra), Ajay Kumar Singh v. State of Bihar etc., . the Supreme Court held as under:
"In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time, the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates."
36. Having laid down the principle, it proceeded to provide the solution and indicated the manner in which the admissions must be effected in such cases. It observed, "The aforesaid objective can be achieved, if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allowed seats in whichever colleges the seats should be available".
37. From a reading of the latter passage, it is evident that the meritorious candidate among reserved category must be accorded the freedom to choose the course or college of his choice and the displaced candidate belonging to the same category must be allotted seat "in whichever colleges the seat should be available". The principle, which applies to the institutions, equally governs the situations relating to courses also. In a given situation, it may be a combination of both.
38. The purport of the submissions made on behalf of the petitioners is that if a candidate born in reserved category is entitled to be admitted against a seat in a particular course, and in a particular college, as a candidate in the open category, and if he intends to get admitted against a seat reserved for the said category, the seat against which he was entitled to be admitted in the open category must be made available to the person who is displaced on account of the change of choice by an otherwise open category candidate. In the illustration, given in the preceding paragraphs, candidate 'X', who belongs to S.C. category was entitled to be admitted into course-I in college 'B' as an open category candidate. Not being satisfied with that, he gets admitted against a seat in Course-II in college 'A', which incidentally was reserved in favour of a S.C. category to which he belongs. Such an option by 'X' is to result in displacement of candidate-Y, who was eligible to get admission only as a reserved candidate. According to the petitioners, candidate-Y must be accommodated in course-I in college 'A' (sic. 'B') vacated by candidate-X.
39. We are of the view that the ratio of the judgment in Ritesh Sah's case (2 supra) does not support such a contention. The judgment, according to us, is to the effect that if candidate-Y faces displacement from reserved category, on account of shifting of priority by candidate-X, he must be accommodated in any course, may be I, III, IV, V, and in any colleges C, D, E., depending on the availability, and not necessarily against the seat vacated by 'A'. It is a different thing, if he gets that seat, in the process. The number of seats so affected may have to be replenished, if necessary by displacing the candidate of other categories, from the bottom. The words "they be allotted seats in whichever college the seats should be available" used by the Supreme Court supports this view.
40. In M. Neethi Chandra's case (7 supra), the Supreme Court did not take note of its decision in Ritesh Sah's case (2 supra), rendered few months earlier. It is possible to argue that a slightly different note was struck, in that case, on the issue. However the little doubt, if one may call it, as to the consistency between those two judgments stood cleared with the recent judgment of the Supreme Court in Anurag Patel's case (8 supra). Specific reference was made to both the judgments and the relevant portions were extracted. That case related to appointment to civil services in the State of U.P. The appellant therein, a candidate belonging to OBC, who secured 97th rank was appointed as Deputy Collector against a reserved vacancy, whereas candidates with superior ranks belonging the same category were appointed against unimportant posts in the open category. Following the instructions issued by the Government on 19-10-1992, the appellant was replaced by a more meritorious candidate in that category. The contention of the appellant that he was entitled to be retained as Deputy Collector was not accepted, and support was taken from the principle in the Ritesh Sah's case (2 supra), and M. Neethi Chandra's case (7 supra).
41. In a common law system, which has been by and large inherited and adopted by our country, as distinguished from the continental system, judgments in decided cases are treated as source of law, with the same primacy as enacted law. However, in the matter of application, the Courts do not find themselves in the same comfortable situation, when it comes to a question of application of enacted law on the one hand, and a precedent, on the other hand.
42. The manner in which, these two recognized sources of law come into existence, radically differs. In the case of a legislation, extensive preparatory work is undertaken by the executive, in the matter of identification of the menace or problem, which is sought to be remedied, and extensive discussion takes place in the Legislature, before finality is attached to the Bill. What we find in the form of an Act, or other form of Legislation, is the filtered and distilled form of the ultimate decision, that has emerged out of the exercises referred to above. The application thereof is left to be undertaken, as and how the situations emerge.
43. Precedent, on the other hand, emerges in a totally different set of circumstances, mostly in the process of application of the enacted law. Discussion on the relevant aspect takes place in the Court itself. The Court would not stop with the formulation of the principle, as does the Legislature. It proceeds to apply the same to the set of facts pleaded before it. Therefore, the precedent contains in itself, the factual background or material, the necessary discussion and reasoning, the ultimate principle that emerges, and the application thereof, to the facts of the case. What becomes binding on the Courts, which happen to deal with similar situations, is the principle part of a precedent, and not the other components, referred to above, and that is known as the ratio decidendi.
44. It is by no means an easy task for a Court to discern a ratio decidendi in precise form. While the enacted law remains static, till it is amended or repealed, the ratio decidendi would keep on gaining or losing strength, depending upon the number of situations, that it comes to be dealt with. In the words of Dias, "The pronouncement of the judge who decided the case is a necessary step towards ascertaining the ratio, but the process by no means ends there; subsequent interpretation is at least as significant, sometimes more so".
He proceeded to add, "No one can foresee the precise situations that will arise, so the rule has to be capable of applying to a range of broadly similar situations against a background of changing conditions". (See Dias on Jurisprudence, Fifth Edition, pages 140 and 136) Writing about ratio decidendi, in his legal classic, Salmond said, "We must distinguish what a case decides generally and as against all the world, from what it decides between the parties themselves". (See Salmond on Jurisprudence Twelfth Edition, page 175)
45. More often than not, an obiter dicta in a binding precedent is taken or rather mistaken to include not only the principle, but also the application of it. While the principle covers all situations, which are broadly similar, the application thereof, differs from case to case, except where the facts are identical, in all respects. Adequate care needs to be taken always, to distinguish the principle in a precedent from the application part of it. Failure in this regard may lead to a situation, where the precedent would assume a different connotation, than what was ascribed to it, by the Court, which rendered it.
46. Edgar Bodenheimer, furnished an illustration in his book, 'Jurisprudence', to demonstrate this aspect:
"The defendant, a redheaded man named Walpole, riding in a Buick automobile painted pale magenta, caused his car to swerve on the road, and a collision with another car occurred. The plaintiff, Atkinson, was injured in the accident. The court's award of damages to Atkinson was upheld by the appellate court which, in the course of its opinion, laid down a broad rule of law for the guidance of courts in automobile accident cases. If a later court should narrow down the ratio decidendi of this case to its particular facts by holding that "this rule holds only of redheaded Walpoles in pale magenta Buick cars," an example of an improper and dangerous application of the prevailing ratio decidendi doctrine is presented". (See Edgar Bodenheimer on Jurisprudence (revised edition), page 436 and 437)
47. If we examine the judgments of the Supreme Court rendered in the cases of Ritesh R. Sah (2 supra), Neethi Chandra (7 supra) and Anurag Patel's (8 supra), referred to above, it emerges that the Supreme Court laid down a principle to the effect that the merit obtained by a candidate belonging to a reserved category, cannot be treated, or permitted to become, a factor, to deprive or minimize the options to him, when compared to a candidate belonging to the same category, and accommodated in the reserved seats or posts. This principle, in turn, came to be applied in different manners, in different cases, depending on the procedure adopted for selection of candidates. It is the principle, that becomes a guiding factor, than the application part of it. The principle - the ratio decidendi, as we understand is that a higher ranked/merited candidate belonging to a reserved category, should not suffer a deprivation in the choices of either a seat or an institution of his choice vis-a-vis a lesser ranked/merited candidate of the same social class, by the operation of a reservation principle. Any admissions programme that accords with such principle is valid.
48. In Koganti Jayakrishna's case (4 supra), the context was a bit different. The controversy was, whether each individual discipline in graduate engineering courses was liable to be treated as a course of study, in the matter of implementing the reservations for socially backward classes. Since the admissions did not provide for any other definition, the Court took the view that recourse can be had to the expression "Course of study" occurring in the Presidential Order, which was also applicable to those admissions. The question as to whether the definition "course of study" must be the same for all purposes shall be considered a little later.
49. In applying this principle, the distinction between cases where separate blocks of seats are allocated in favour of different categories, on the one hand, and those in which seats are filled up by following the roster, on the other hand; needs to be maintained. In the former case, the admissions are first undertaken for the open category of seats. The claims for these seats can be from the candidates belonging to any social group or category, and the only consideration would be merit. After the open category seats are filled up, the seats reserved for various categories are taken up, one after the other. Depending on the nature of the course and the number of colleges in which it is imparted, occasions may arise, where the candidates belonging to a particular reserved category, who have secured or were entitled to secure admission against the seats earmarked for open category, may choose to get admitted against a seat reserved for that category. In such an event, a process known as sliding takes place, in relation to the nature of course or the college. The principle laid down in Ritesh Sah's case (2 supra), squarely applies in such cases.
50. Roster, on the other hand, has a different connotation. It provides for arrangement and interspersing of various reserved categories, in such a way that an equitable distribution and arrangement in sequence, is ensured. For instance, in a roster of 100-points, the 15% reserved seats in favour of SC candidates are spread equitably, at various places, to ensure that there is a proportionate representation at every level. So is the case with other categories of reservation. It avoids clustering of seats earmarked to a particular category, at any level.
51. Normally, rosters are maintained in the matter of appointment to public services. The object underlying the same is that even where the appointments are made to limited number of vacancies, proportionate representation of the reserved categories is ensured and the same roster is continued, till the cycle is complete. The question as to whether rosters can be adopted in the matter of admissions into educational institutions was dealt with by a Division Bench of this Court in Preeti Puranik v. N.T.R University of Health Sciences, . It was observed;
"We gave our anxious consideration to find out as to whether there is any enacted or decided case law, which supports the contention of the petitioner that the principle of roster is in the exclusive domain of employment. Our attention was not invited to any such law. Though introduction of the system of roster in the matter of admissions appears to be new, there does not appear to be anything objectionable in applying the same for the admissions. By applying the principle of roster, seats in the specified position are identified for various categories. The seats so identified are liable to be filled up by the candidates belonging to the category for which it is meant. In a way, it ensures the most objective method of working of reservations. Each category is not only ensured of its quota, but also the fair distribution of the seats in various courses. Except the general allegation, it is not demonstrated as to how it had worked out to the detriment of any category."
Learned Senior Counsel for the petitioners are not able to convince us to deviate from or differ with the same.
52. At the first blush, it may appear that the principle laid down in Ritesh Sah's case (2 supra) has no application, where the admissions are effected through the system of roster. The basis for such an assumption is that each category is earmarked its own slot in the roster, and there does not exist any scope for sliding. However, on a close analysis, it emerges that the principle does apply, may be in a different form, even where the admissions are through roster. The general merit list has to be taken into account and adopted while operating a roster. For example, let it be assumed that Slot-7 in the roster is earmarked for a scheduled tribe candidate. If there exists a meritorious scheduled tribe candidate, whose rank in the list is above 7, he does not have to wait till his turn comes. He can be admitted against the immediately available open category seat, and his admission cannot be counted against any reserved seat. If such a candidate occurs in the list, corresponding to the slot, no problem as such would arise, and he can be straightaway admitted against the slot. Where, however, the candidate occurring at the relevant place in the merit list belongs to some other category and the scheduled tribe candidate immediately available is, let us say, at Serial No. 20, corresponding to a slot, earmarked for Open Category in the roster, he deserves to be pushed up, and admitted against slot No. 7. This situation, resembles, may be, in a remote sense, the "sliding" in the other pattern of admissions. This results in an otherwise Open Category candidate, being admitted against a reserved vacancy. The resultant numerical loss of seats to that particular category needs to be replenished. It is here, that the principle in Ritesh Sah's case (2 supra) becomes relevant.
53. Had no arrangement been made under G.O.Ms.No. 123 to meet such contingencies, it deserves to be declared as violative of the principle laid down by the Supreme Court, to that extent. The respondents have, however, made an effort to meet the contingency. It is beneficial to extract Clause-III of G.O.Ms.No. 123, which dealt with the same.
"III. COUNSELLING:
(i) Statewide seats and seats available in each University local area i.e., AU, OU and SVU have to be displayed at and during the counselling by earmarking in each subject/discipline 85% and 15% seats for locals and unreserved respectively.
(ii) Counselling will be conducted for the statewide seats, AU, OU and SVU areas simultaneously.
(iii) Candidates will be called for counselling based on the statewide merit/ranking in respective categories as per the roster mentioned in para II, and candidates may opt for statewide seats, seats meant for local candidates of his/her University area besides 15% of unreserved seats of all the three University local areas.
(iv) The Health University has to make an exercise to find out how many meritorious reserved candidates have been allotted seats as against their respective reservation point who would otherwise be eligible to be treated as open category candidate and that many reserved seats occupied by such meritorious candidates have to be earmarked for the less meritorious candidates, in such reserved category and to achieve this, open category points/ candidates in reverse order have to be substituted by the respective reserved category point/candidate."
A perusal of Sub-clause (iv) of Clause-III discloses that wherever any reserved candidates, who were otherwise eligible to be admitted against Open Category seats, are admitted against reserved seats, the corresponding number of seats shall be made available to the said category, by displacing the Open Category candidates in the reverse order. This arrangement in our view, fully accords with the principle laid down in Ritesh Sah's case (2 supra). It also strikes a decent balance between two conflicting situations that were pointed out by the Supreme Court, in that case.
54. It was urged on behalf of the petitioners that providing seats at the bottom of the list, to make good, the resultant loss, on account of admission of meritorious reserved candidates, against reserved seats, would cause serious injustice to that particular category, and that the very purpose of reservation would be defeated. Here, it needs to be noted that if the exercise of replenishment is undertaken, at the end of each cycle of 100-point, there does not exist such a contingency. A close look to 100-point roster that is adopted by the respondents, discloses that it is only the 36th meritorious candidate belonging to unreserved category that can get the last seat in the roster. Such a situation emerges, because of interspersing of the various categories throughout the roster. If a candidate belonging to a particular reserved category, with a rank, inferior to 36, is able to secure a seat, which an open category candidate is unable to get, he cannot be said to have been meted out any unjust or discriminatory treatment. One important aspect needs to be taken note of, in this context. In a roster system, particularly the one adopted by the respondents, no seat of a particular course of study is earmarked against any point of a roster. A candidate can choose any of the available courses that remain by the time his turn comes. For example, if there are 150 seats in different courses and specializations, a candidate in the roster point No. 1 will have an option to choose any of the 150 seats, and a candidate who occurs at roster point No. 15 will have the option against 135 seats.
55. In the ultimate analysis, the number of candidates belonging to a particular reserved category admitted to a course, would be those, who get admissions on the basis of merit as well as those who get on account of reservation. Clause III (iv) of G.O.Ms.No. 123, ensures that no reserved category loses even a single seat on account of adoption of roster. If the contention of the petitioners is to be accepted, the reservation tends to become an end by itself, and not a means to achieve and ensure equality. The principle laid down by the Supreme Court in Ritesh Sah's case (2 supra) applies, may be in a modified form, to the procedure adopted under G.O.Ms. No. 123; and Clause III(iv) of the said G.O. had ensured compliance therewith.
56. The other subsidiary and ancillary questions, though fall outside the scope of reference, need to be dealt with. The first contention is that a Full Bench of this Court in Md. Abdul Azeez's case (1 supra) found fault with the procedure laid in G.O.Ms.No. 44, only as regards a minute aspect, and that there was no justification on the part of the Government in replacing the entire procedure. It is not in dispute that the Government is vested with the power to prescribe the procedure for admission. It prescribed a particular procedure in G.O.Ms.No. 44. The Full Bench took the view that the pattern of reservation, in favour of local candidates, was contrary to the Presidential Order. The G.O. was struck down. The Government had chosen to adopt an altogether different procedure and issued G.O.Ms.No. 123. It is always open to the Government to formulate its own policies and to prescribe any procedure, as long as the same is within its power and competence. When several alternatives are available to an individual or the State, the right to choose one of them cannot be restricted, as long as the alternative so chosen does not suffer from any legal infirmity.
57. It was submitted that G.O.Ms.No. 123 was issued with undue haste, and the counselling was undertaken, without giving even breathing time to the affected parties, to enable them to know where they stand in the changed context. If one looks at certain dates, such as the date of judgment, date of issuance of G.O., and date of counselling, the contention of the petitioners becomes readily acceptable. However, if a special circumstance is taken into account, the speed with which the Government moved in the matter, cannot be said to be unwarranted. In Madhu Singh's case (3 supra), the Supreme Court stipulated deadlines for completion of admissions in the Post Graduate and Under-Graduate Medical courses, to ensure that consistency in the matter is brought about, through out the country. There are several instances where the Supreme Court rejected the petitions filed by the institutions or individuals, seeking relaxation of the dates, even where, plainly justifiable grounds existed. 1st May of every year was stipulated, as the last date for admissions into Post Graduate Medical course. It was in this context that the Government moved with the required speed, and not in undue haste, and issued G.O.Ms.No. 123, to ensure that the admissions are concluded before the stipulated date.
58. One serious objection was raised to the effect that the G.O.Ms.No. 123 was sought to be implemented, even before it was published. There is no dispute that any rules made under A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act 1983, (G.O.Ms.No. 123 is issued under the said Act) must be published in the Gazette, before they are enforced. On behalf of the respondents, a counter affidavit is filed stating that the G.O. was published on 25-4-2005, and the necessary supporting material was placed before this Court. Petitioners are not able to convince us to disbelieve the same. Therefore, we are not inclined to accept this contention.
59. Though it was urged that the implementation of G.O.Ms.No. 123 resulted in violation of Presidential Order, on a closer examination of the entire matter, we are convinced that no such violation has taken place.
60. Extensive submissions were made in relation to the adoption of the roster and change of some points in it. It was pleaded that the roster, which was part of the Rule 22 of the Rules, ought to have been adopted as it is, and that there was no justification for the respondents in interchanging the Points 1 and 3. In the roster, which forms part of Rule 22, the 1st point was earmarked for Open Category (woman) and the 3rd point was earmarked for Open Category (General). They were interchanged. The only person who could have had any grievance about this, was an Open Category (woman) candidate, who had suffered any detriment, on account of this. None of the petitioners belong to that category. Further, shifting of Open Category seat from the 3rd point to 1st point, cannot be said to have resulted in detriment to any one. The seat was available to all possible categories of candidates, cutting across caste, creed, sex, handicap, etc. Therefore, we do not find any force in this submission.
61. Another limb of this aspect is about the power of the Government to alter the roster, prepared in exercise of powers under proviso to Article 309 of the Constitution of India. It is true that the roster under Rule 22 of the Rules is prepared, in exercise of power under the said provision. The petitioners would have been right in their submission, had the alteration been in exercise of executive power, and the amended roster operated for the same purpose. In the instant case, the roster prepared under the A.P. State and Subordinate Services Rules was adopted for the purpose of admissions, obviously as a matter of convenience. The roster referred to and adopted for G.O.Ms. No. 123, does not retain the character of being part of State and Subordinate Services Rules.
62. It was vehemently contended that on account of the adoption of roster and readjustment of seats, several reserved category candidates were denied admissions. The verification of records, however, discloses that as many as 139 seats remained vacant, on account of the fact that the candidates belonging to reserved categories to whom the seats were offered, did not join. Howsoever desirable it may be that the candidates belonging to socially backward sections must be provided the best possible seats, within the frame-work of the Rules, it is rather impossible to provide the seats of their choice to all the candidates. Therefore, we do not find any merit in the submission.
63. Placing reliance upon the judgment rendered by a Full Bench of this Court in Koganti Jayakrishna's case (4 supra) and certain other decisions, it was argued that the respondents committed illegality in adopting different definitions for "course of study", for the purpose of reservations under the Presidential Order, on the one hand, and those for the reservations under Article 15(4) of the Constitution of India, on the other hand. The petitioners contend that each specialization in the post-graduate medical courses was treated as a course of study for the purpose of Presidential Order, whereas, all the courses in degree and diploma, as the case may be, were clubbed together for the purpose of reservations under Article 15(4).
64. It is true that in Koganti Jayakrishna's case (4 supra), the Full Bench adopted the definition of the 'course of study', occurring in the Presidential Order, for the purpose of working out reservations provided for under Article 15(4). This was resorted to, because the concerned authorities did not coin or adopt a different definition for this purpose.
65. 'Course of study' is not a term of definite connotation. Its purport may change, depending on the context in which it is used. It is not uncommon that the levels of study, specializations etc., are treated as the bases for this purpose. For example, the courses will be known as under-graduate, postgraduate courses, depicting the stage at which they are studied. Instances are also not lacking, where courses of study are understood with reference to the specialization of study, such as M.S. General Surgery, M.S. Ophthalmology. When the State has the absolute discretion in the matter of providing reservations, and to decide the extent and mode thereof, it cannot be precluded from adopting a particular unit, for enforcing the same. It is not necessary that the unit of reservation must be the same for all purposes. It is also to be noted that the Presidential Order itself provides for unit of reservation, being "courses of study"; whereas no such expression is found in Article 15(4). It is obviously in this context, that G.O.Ms.No. 123 had adopted different terms and expressions in this regard. They read as under:
"(i) 15%, 6% and 25% seats of Post Graduate Degree and Diploma Courses are reserved for SC, ST and BC candidates respectively, which are called vertical reservations".
"(iv) 85% of the available seats in every course of study (subject/discipline) shall be reserved in favour of local candidates in relation to the local area. While determining 85% in favour of local candidates any fraction of seat shall be counted as one."
Therefore, the respondents cannot be said to have committed any illegality in adopting different methods, in the matter of working out the reservations for the two categories, referred to above.
66. Another submission made on behalf of the petitioners is that the respondents ought to have made course-wise reservations. The petitioners contend that on account of non-providing of course-wise reservations, the reserved categories are deprived of courses of importance.
67. In the preceding paragraphs it has already been pointed out that course wise reservation and roster cannot go together. In a way, it can be said that both are mutually exclusive. Further, the importance of a course or specialization varies from time to time. Even at a given point of time, it would depend, much upon the likes and dislikes of candidates. During the current academic year itself the topper in the list has chosen the course in M.D. Radio-diagnosis. Annexure-B1 filed by the petitioners discloses that the candidate at roster No. 2 in the Osmania University area has chosen M.D. Pediatrics, and it was only the candidate at roster point Nos. 7 and 31, that have chosen the other two seats in the M.D. Radio-diagnosis. The same is the case with other courses. One clear phenomenon, which cuts across all the admissions, is that the courses of study were guided, mostly by the choices of the candidates, than by any definite importance.
68. One serious objection was raised, as to the attempt made by the Government to sustain G.O.Ms.No. 123, on the one hand, and G.O.Ms.No. 167, on the other hand. Soon after the judgment rendered by a Full Bench in Asad's case (1 supra), the Government swung into action and published a set of rules in G.O.Ms.No. 123, to ensure that the admissions are concluded, within the time frame stipulated by the Supreme Court. Several representations were made to it by number of candidates, complaining that injustice was caused to them, on account of the procedure adopted in G.O.Ms.No. 123. With an object of correcting the same, it issued G.O.Ms.No. 167.
69. Issuance of G.O.Ms.No. 167, by itself, cannot be treated as a circumstance, to suggest or conclude that the Government was convinced that the procedure in G.O.Ms.No. 123 was defective. Equally, if an attempt is made to justify G.O.Ms.No. 123, it cannot be treated as an acknowledgement that the G.O.Ms.No. 167 was either superfluous, or untenable. There is nothing, which prevents the Government to sustain both, as long as the latter was conceived as an improvement over the former. At any rate, the plea taken by the Government is not going to be the last word on the subject matter.
70. Even if there is any possibility to find fault with the procedure adopted in G.O.Ms.No. 123, from one angle or the other, urged on behalf of the petitioners, we find an insurmountable difficulty in accepting the same. The reason is that nothing can be done, at this stage, in view of the deadline prescribed by the Supreme Court in Madhu Singh's case (3 supra). The only consequence of setting at naught the admissions made under G.O.Ms.No. 123, would be, to render all the seats to go waste. It is not only impossible, but is also impermissible, to protect the seats to be filled by adopting any other procedure at this stage.
71. We answer the reference accordingly.
72. We direct the Registry to post the writ petitions before the appropriate Bench for further steps and disposal.
73. Before parting with the case, we acknowledge the valuable assistance rendered by Sri P.P. Rao, Sri Bojja Tarakam, Sri Ravi Varma Kumar, learned Senior Counsel, learned Advocate-General and Sri Nooti Rama Mohan Rao, who analyzed the various issues from all possible angles.