Telangana High Court
Pulipati Sreesaipushpanjali vs The State Of Telangana on 17 December, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE J.SREENIVAS RAO
+ WRIT PETITION Nos. 30771, 30801, 31093, 31161,
31288, 31297, 31315, 31317, 31319, 31350, 31356,
31357, 31361, 31362, 31369, 31375, 31376, 31396,
31412, 31431, 31450, 31454, 31470, 31472, 31473,
31475, 31481, 31482, 31484, 31487, 31493, 31496,
31497, 31499, 31505, 31508, 31515, 31518, 31520,
31523, 31527, 31532, 31533, 31535, 31538, 31541,
31542, 31545, 31546, 31548, 31554, 31559, 31565,
31572, 31578, 31582, 31584, 31587, 31604, 31621,
31623, 31628, 31630, 31637, 31640, 31643, 31654,
31659, 31675, 31677, 31705, 31718, 31743, 31818,
31846, 31854, 31858, 31865, 31873, 31915, 31917,
31925, 31994, 32010, 32227, 32235, 32246, 32273,
32274, 32289, 32494, 32969, 33149, 33242, 34019,
34025, 34293 and 34371 of 2024
% Date: 17.12.2024
# Dr. S.Satyanarana and others. ... Petitioners
v.
$ The State of Telangana, Rep by its Principal Secretary to
Government, Health, Medical and Family Welfare (Cl)
Department, Dr. B.R.Ambedkar Telangana State
Secretariat, Hyderabad, and another.
... Respondents
^ Counsel for the petitioners:
Mr. M.Surender Rao, learned Senior Counsel
representing Mr. Srinivasa Rao Madiraju
2
Mr. S.Satyam Reddy, learned Senior Counsel
representing Mr. Sarasani Rahul Reddy
Mr. A.Venkatesh, learned Senior Counsel
representing Ms. Pratusha Boppana
Mr. G.Vidya Sagar, learned Senior Counsel
representing Mr. N.Ramesh
Mr. B.Mayur Reddy, learned Senior Counsel
representing Mr. Alluri Divakar Reddy and
Mr. Saini Aravind
Mr. K.R.K.V.Prasad
Mr. Srinivasa Reddy. K
Mr. Md. Sultana Basha
Mr. G.Madhusudhan Reddy
Mr. B.Shiva Kumar
Mr. S.Aravind, learned counsel representing
Mr. Alluri Divakar Reddy
Mr. Alluri Divakar Reddy
^ Counsel for the respondents :
Mr. A.Sudarshan Reddy,
learned Advocate General for the State.
Mr. A.Prabhakar Rao,
learned Standing Counsel for
the Kaloji Narayana Rao University of Health
Sciences
< GIST:
HEAD NOTE:
3
? CASES REFERRED:
1. AIR 1971 AP 118
2. (2004) 6 SCC 689
3. (2021) 11 SCC 401
4. 2024 SCC OnLine SC 3184
5. (1984) 3 SCC 654
6. (2001) 7 SCC 640
7. (2003) 11 SCC 186
8. (2003) 11 SCC 146
9. (2004) 5 SCC 618 : 2004 SCC OnLine SC 668
10. 2003 SCC OnLine Ker 510
11. 2023 (1) MPLJ 170
12. (1976) 1 SCC 428
13. (2024) 3 SCC 51
14. (2024) 8 SCC 172
15. 1955 SCC OnLine SC 4
16. (2003) 11 SCC 146
17. (2020) 13 SCC 675
18. 2021 SCC OnLine MP 264
19. (2003) 11 SCC 146
20. (1995) 2 SCC 135
21. (2018) 17 SCC 524
22. 2022 SCC OnLine SC 1501
23. (1984) 3 SCC 654
24. (2019) 7 SCC 584
25. (1984) 3 SCC 654
26. 2023 SCC OnLine SC 1140
27. 1955 SCC OnLine SC 4
28. (1984) 3 SCC 654
29. (1995) 2 SCC 135
30. 1955 SCC OnLine SC 4
31. (2001) 7 SCC 640
32. (2003) 11 SCC 186
33. (1984) 3 SCC 654
34. (2003) 11 SCC 146
35. (2003) 11 SCC 186
36. (2013) 10 SCC 237
37. (2003) 11 SCC 186
38. (2014) 11 SCC 456
39. (1984) 3 SCC 654
40. (2018) 17 SCC 453
41. (2014) 11 SCC 456
42. (2018) 17 SCC 524
43. (2020) 13 SCC 675
44. (1984) 3 SCC 654
45. (2003) 11 SCC 186
46. (2003) 11 SCC 146
47. (2020) 13 SCC 675
48. 2023 SCC OnLine SC 1140
49. (2020) 13 SCC 675
50. 1955 SCC OnLine SC 4
4
51. (1984) 3 SCC 654
52. (1995) 2 SCC 135
53. 1955 SCC OnLine SC 4
54. (2020) 13 SCC 675
55. (2003) 11 SCC 186
56. (1984) 3 SCC 654
57. (2003) 11 SCC 146
58. AIR 1972 SC 2427
59. (2019) 11 SCC 1
60. (2016) 16 SCC 110
61. (2004) 3 SCC 48
62. AIR 2002 AP 115
63. 2023 SCC OnLine SC 1666
64. (1997) 1 SCC 373
5
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE J.SREENIVAS RAO
WRIT PETITION Nos. 30771, 30801, 31093, 31161,
31288, 31297, 31315, 31317, 31319, 31350, 31356,
31357, 31361, 31362, 31369, 31375, 31376, 31396,
31412, 31431, 31450, 31454, 31470, 31472, 31473,
31475, 31481, 31482, 31484, 31487, 31493, 31496,
31497, 31499, 31505, 31508, 31515, 31518, 31520,
31523, 31527, 31532, 31533, 31535, 31538, 31541,
31542, 31545, 31546, 31548, 31554, 31559, 31565,
31572, 31578, 31582, 31584, 31587, 31604, 31621,
31623, 31628, 31630, 31637, 31640, 31643, 31654,
31659, 31675, 31677, 31705, 31718, 31743, 31818,
31846, 31854, 31858, 31865, 31873, 31915, 31917,
31925, 31994, 32010, 32227, 32235, 32246, 32273,
32274, 32289, 32494, 32969, 33149, 33242, 34019,
34025, 34293 and 34371 of 2024
COMMON ORDER:(Per the Hon'ble the Chief Justice Alok Aradhe) Mr. M.Surender Rao, learned Senior Counsel representing Mr. Srinivasa Rao Madiraju, learned counsel for the petitioners in W.P.Nos.30771 and 33149 of 2024. 6
Mr. S.Satyam Reddy, learned Senior Counsel representing Mr. Sarasani Rahul Reddy, learned counsel for the petitioner in W.P.No.30801 of 2024.
Mr. A.Venkatesh, learned Senior Counsel representing Ms. Pratusha Boppana, learned counsel for the petitioner in W.P.No.31093 of 2024.
Mr. K.R.K.V.Prasad, learned counsel for the petitioner in W.P.No.31161 of 2024.
Mr. Srinivasa Reddy. K, learned counsel for the petitioners in W.P.No.31677 of 2024.
Mr. Md. Sultana Basha, learned counsel for the petitioners in W.P.Nos.31743, 31818 and 33242 of 2024.
Mr. G.Vidya Sagar, learned Senior Counsel representing Mr. N.Ramesh, learned counsel for the petitioner in W.P.No.31854 of 2024.
Mr. G.Madhusudhan Reddy, learned counsel for the petitioner in W.P.No.31917 of 2024.
7
Mr. B.Shiva Kumar, learned counsel for the petitioner in W.P.No.32494 of 2024.
Mr. B.Mayur Reddy, learned Senior Counsel representing Mr. Alluri Divakar Reddy, learned counsel for the petitioners in W.P.Nos.31288, 31297, 31315, 31317, 31319, 31350, 31356, 31357, 31361, 31362, 31369, 31396, 31412, 31431, 31450, 31454, 31470, 31472, 31473, 31475, 31481, 31482, 31484, 31487, 31493, 31496, 31497, 31499, 31505, 31508, 31515, 31518, 31520, 31523, 31527, 31532, 31533, 31535, 31538, 31541, 31542, 31545, 31546, 31548, 31554, 31559, 31565, 31572, 31578, 31582, 31584, 31587, 31604, 31621, 31623, 31628, 31630, 31637, 31640, 31643, 31654, 31659, 31675, 31705, 31718, 31846, 31858, 31865, 31873, 31915, 31925, 31994, 32010, 32227, 32235, 32246, 32273, 32274, 32289 and 32969 of 2024.
Mr. B.Mayur Reddy, learned Senior Counsel also represents Mr. Saini Aravind, learned counsel for the petitioners in W.P.Nos.31375 and 31376 of 2024. 8
Mr. S.Aravind, learned counsel representing Mr. Alluri Divakar Reddy, learned counsel for the petitioners in W.P.Nos.34019 and 34025 of 2024.
Mr. Alluri Divakar Reddy, learned counsel for the petitioners in W.P.Nos.34293 and 34371 of 2024.
Mr. A.Sudarshan Reddy, learned Advocate General for the State.
Mr. A.Prabhakar Rao, learned Standing Counsel for the Kaloji Narayana Rao University of Health Sciences (hereinafter referred to as, "the University").
2. This order has been divided into the following sections to facilitate analysis:-
SECTIONS HEADING PAGE No. A FACTUAL MATRIX 10 B THE RULES 14 C IMPUGNED RULES 18 D SUBMISSIONS ON BEHALF OF 20 PETITIONERS E SUBMISSIONS ON BEHALF OF 27 STATE 9 F REJOINDER SUBMISSIONS ON 30 BEHALF PETITIONERS G REPLY SUBMISSIONS ON 36 BEHALF OF STATE H ISSUES: 37 (i) ISSUE Nos.1 and 2 40-54 (ii) ISSUE No.3 54-56 (iii) ISSUE No.4 56-76 (iv) ISSUE No.5 76-87 (v) ISSUE No.6 87-94 (vi) ISSUE No.7 94-95 (vii) ISSUE No.8 95-96 (viii) ISSUE No.9 96-100 I COMMON ORDER DATED 100 11.09.2023 IN W.P.No.18047 OF 2023 AND BATCH J CONCLUSION 105
3. A common issue with regard to validity of Rule VIII of the Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021 (hereinafter referred to as, "the 2021 Rules") and Rule 8 of the Telangana Admission into Post Graduate (AYUSH) Courses Rules, 2024 (hereinafter referred to as, "the AYUSH Rules, 2024") arises for consideration in these writ petitions. The writ petitions, therefore, were heard analogously and are being decided by this common order.
10(A) FACTUAL MATRIX:
4. In order to appreciate the grievance of the petitioners, relevant facts need mention. All the petitioners, except the petitioners in W.P.Nos.31854, 32494 and 34371 of 2024, are residents of Andhra Pradesh and Rajasthan and have completed their MBBS course in an institution situate in the State of Telangana. The petitioners in the said writ petitions have been admitted under 15% All India Quota to MBBS course in the State of Telangana. The petitioners in W.P.Nos.30771 and 33149 of 2024 are the candidates who have completed their MBBS course from the State of Andhra Pradesh and are serving as Civil Assistant Surgeons in the State of Telangana. They are inservice candidates. The petitioner in W.P.No.30801 of 2024 has completed his MBBS course from China and is serving as Civil Assistant Surgeon in the State of Telangana. The petitioner in W.P.No.32494 of 2024 has completed his MBBS course from Krygyztan and has completed his internship from the State of Telangana. The petitioners in W.P.Nos.31161, 31375, 31677, 31743, 31818 and 33242 11 of 2024 have completed their BAMS/BHMS course from the States other than the State of Telangana. The petitioners in W.P.Nos.31375 and 31376 of 2024 have completed their BAMS/BHMS course in the State of Telangana. All the petitioners are aspirants for admission as local candidates to Post Graduate medical course in the State of Telangana.
5. In these writ petitions, the petitioners, except the petitioners in W.P.Nos.31161, 31375, 31376, 31677, 31743, 31818 and 33242 of 2024, have assailed the validity of Rule VIII of the 2021 Rules, as amended by G.O.Ms.No.148, Health, Medical and Family Welfare (C1) Department, dated 28.10.2024. In W.P.Nos.31161, 31375, 31376, 31677, 31743, 31818 and 33242 of 2024, the petitioners have challenged the validity of Rule 8 of the AYUSH Rules, 2024, issued vide G.O.Ms.No.149, Health, Medical and Family Welfare (C1) Department, dated 28.10.2024, which is in pari materia with Rule VIII of the 2021 Rules.
12
6. Section 61(2) of the National Medical Commission Act, 2019 read with Chapter IV of Post Graduate Medical Education Regulations, 2023 prescribes NEET PG Examination as the eligibility-cum-ranking examination and is a single entrance examination for admission to various MD/MS and PG diploma courses. The Government of India has established the National Board of Examination in Medical Sciences (NBEMS) with an object of improving the quality of medical education by establishing high and uniform standards of postgraduate examinations in modern medicine on an All India Basis. The role of the NBEMS is limited to conduct of NEET PG examination and to declare the results. The role of NBEMS is over once the result is handed over to the designated counselling authority. NBEMS has no role in counselling and allotment of post graduate seats. The NBEMS issued a notification on 16.04.2024 for admission to Post Graduate Courses NEET PG 2024 in the State of Telangana. The NBEMS conducted an examination on 11.08.2024 for admission to post graduate courses. The petitioners appeared in the said 13 examination. The NBEMS declared the result of the examination on 23.08.2024. The State Government vide G.O.Ms.No.148, dated 28.10.2024 amended the 2021 Rules and enacted by G.O.Ms.No.149, dated 28.10.2024 the Telangana Admission into Post Graduate (AYUSH) Courses Rules, 2024. The notification inviting online applications for admission to various post graduate courses in the State of Telangana was issued by the Kaloji Narayana Rao University on 30.10.2024 inviting the applications.
7. The State Government in exercise of the powers conferred by Section 3 read with Section 15(1) of Telangana Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee), Act 1983, framed the rules, namely Telangana Medical Colleges (Admission into Postgraduate Medical Courses) Rules, 2021, which govern the admission to Post Graduate Courses in the State of Telangana.
14(B) THE RULES:
8. The unamended Rule VIII of the 2021 Rules and relevant portion of Rule 6 of the Rules for admission into M.D. courses Ayurveda, Unani and Homoeopathy, 2004, read as under:
(i) Unamended Rule VIII of the 2021 Rules:
"VIII. RESERVATION IN FAVOUR OF THE LOCAL CANDIDATES:
i. Admission to 85% of the seats shall be reserved in favour of the local candidates in relation to the local area as provided in Andhra Pradesh Educational Institutions (Regulation of Admission) Order 1974 as amended from time to time.
ii. STATE WIDE COURSE: M.D. (RT) is State-wide course and admissions to this course shall be regulated as per the provisions in the Andhra Pradesh Educational Institutions (Regulation of Admission) Order 1974 for State wide course and guidelines of A.P. State Reorganisation Act."
(ii) Rule 6 of the Rules for admission into M.D. courses Ayurveda, Unani and Homoeopathy, 2004:
"6. LOCAL CANDIDATE:
(i) A candidate for admission to any course of study shall be regarded as local candidate in relation to local area:-15
(a) If he/she has studied in any educational institution(s) in such local area for a period of not less than four consecutive academic years ending with the academic year in which he/she appeared or as the case may be, first appeared in the relevant qualifying examination, or
(b) Where, during the whole or any part of the four consecutive academic years ending with the academic year in which he/she appeared or, as the case may be, first appeared for the relevant qualifying examination.
If he/she has not studied in any educational institution, if he/she has resided in that local area for a period of not less than four years immediately preceding the date of commencement of the relevant qualifying examination in which he/she appeared or as the case may be, first appeared.
(ii) A candidate for admission to any course of study who is not regarded as a local candidate under sub-rule (i) above in relation to any local area shall:
(a) If he/she has studied in an educational institution in the State of a period of not less than seven consecutive academic years ending with the academic year in which he/she appeared or as the case may be, first appeared for the relevant qualifying examination be regarded as a local candidate in relation to:-
(i) Such local area where he/she has studied for the maximum period out of the said period of seven years;
or 16
(ii) Where the period of his/her study in two or more local areas are equal, such local area where he/she studied last in such equal periods; or
(b) If during the whole or any part of the seven consecutive academic years ending with the academic year in which he/she appeared or, as the case may be, first appeared for the relevant qualifying examination, he/she had not studied in the educational institution in any local area, but has resided in the State during the whole of the said period of seven years, be regarded as local candidate in relation to:
(i) Such local area where he/she has resided for the maximum period out of the said period of seven years;
or
(ii) Where the periods of his/her residence in two or more local areas are equal, such local area where he/she resided last in such equal periods."
9. Thus, from perusal of Rule VIII of the 2021 Rules and Rule 6 of the Rules for admission into M.D. courses Ayurveda, Unani and Homoeopathy, 2004, it is evident that the candidates who had completed the MBBS/BAMS/ BHMS course from the educational institutions situate in local area under the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974 17 (hereinafter referred to as, "the Presidential Order, 1974"), were eligible to be treated as local candidates.
10. The State Government by a notification dated 28.10.2024, vide G.O.Ms.No.148, Health, Medical and Family Welfare (C1) Department, amended Rule VIII of the 2021 Rules. Explanation (b) to Rule VIII provides that in order to be a local candidate, a candidate should secure admission to Undergraduate course i.e., MBBS under local quota. A pari materia provision, namely Rule 8, has also been incorporated under the AYUSH Rules, 2024. The petitioners, therefore, in view of the amended Rule VIII of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024 have become ineligible to be treated as local candidates, as they were not admitted to MBBS and BHMS/BAMS courses under local candidate quota. In the aforesaid factual background, the challenge has been made to the constitutional validity of Rule VIII of the 2021 Rules as amended by G.O.Ms.No.148, dated 28.10.2024, and Rule 8 of the AYUSH Rules, 2024. The amended Rule VIII of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024, to which 18 challenge has been made in these writ petitions, are extracted below for the facility of reference:
(C) IMPUGNED RULES:
Rule VIII of the 2021 Rules:
"(i) A candidate to be eligible for admission into P.G. Medical courses under these rules should be an Indian National/Person of Indian Origin/Overseas Citizen of India Card Holder and be a Local candidate.
(ii) 'Local candidate' means a candidate who has studied in the educational institutions in the State of Telangana for a period of not less than four (04) consecutive years ending with the academic year in which he appeared or as the case may be, first appeared in the relevant qualifying examination subject to:
Explanation (a): A candidate who is regarded as a Local Candidate for the purpose of admission to Undergraduate (MBBS) in the State of Telangana, but has studied in a State-wide Institutions outside the Stat of Telangana, shall also be regarded as a Local Candidate.
Explanation (b): A candidate, who has secured admission to the relevant Undergraduate Course (MBBS) under Non-Local Quota in the State of Telangana, shall not be regarded as a Local Candidate."19
Rule 8 of the AYUSH Rules, 2024:
"8. CRITERIA FOR ELIGIBILITY AS LOCAL CANDIDATE:
(i) A candidate to be eligible for admission into P.G.AYUSH Courses under these rules should be an Indian National/Person of Indian Origin/Overseas Citizen of India Card Holder and be a Local candidate.
(ii) 'Local candidate' means a candidate who has studied in the educational institutions in the State of Telangana for a period of not less than four (04) consecutive years ending with the academic year in which he appeared or as the case may be, first appeared in the relevant qualifying examination, subject to:
Explanation (a): A candidate who is regarded as a Local Candidate for the purpose of admission to Undergraduate (UG AYUSH) course in the State of Telangana, but has studied in a State wide Institutions outside the State of Telangana, shall also be regarded as a Local Candidate.
Explanation (b): A candidate who has secured admission to the Undergraduate (UG AYUSH) course under Non-Local Quota in the State of Telangana, shall not be regarded as a Local Candidate."20
(D) SUBMISSIONS ON BEHALF OF PETITIONERS:
11. Mr. G.Vidya Sagar, learned Senior Counsel for the petitioner in W.P.No.31854 of 2024 submitted that by virtue of Section 101 of the Andhra Pradesh Reorganisation Act, 2014 (hereinafter referred to as, 'the Reorganisation Act'), the State of Telangana has adopted the Telangana Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee), Act, 1983 (hereinafter referred to as, "the 1983 Act"), and has made the same applicable to the State of Telangana. It is contended that in view of Section 3(2) of the 1983 Act and non obstante clause in Article 371D(10) of the Constitution of India, the Rules which may be made for admission into such educational institutions, to be subject to the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974, i.e., the Presidential Order.
12. It is submitted that Explanation (b) to Rule VIII of the 2021 Rules is in contravention of para 4 of the Presidential Order, 1974 and therefore, the same is liable to be struck 21 down. It is contended that the Presidential Order continues to apply to the State of Telangana. In support of his submissions, reliance has been placed on the Full Bench decision of the erstwhile Andhra Pradesh High Court in P.Lakshmana Rao vs. State of Andhra Pradesh 1, and the decisions of the Supreme Court in Commissioner of Commercial Taxes, Ranchi vs. Swarn Rekha Cokes and Coals (P) Limited 2 and Chebrolu Leela Prasad Rao vs. State of Andhra Pradesh 3.
13. Mr. B.Mayur Reddy, learned Senior Counsel for the petitioners in W.P.No.31288 of 2024 and other writ petitions, submitted that Explanation (b) to Rule VIII of the 2021 Rules as amended by G.O.Ms.No.148 dated 28.10.2024 mandates that if a candidate joins MBBS course as a non-local candidate, he shall not be regarded as a local candidate. It is further submitted that if a candidate is admitted to MBBS course under 15% All India Quota, on merit basis, is excluded from consideration, for 1 AIR 1971 AP 118 2 (2004) 6 SCC 689 3 (2021) 11 SCC 401 22 admission to Post Graduate course as a local candidate. It is also submitted that by amending the Rules, the Legislature has coupled the requirement of residence/ domicile with the requirement of institutional preference, for admission to post graduate courses under local candidate quota. Therefore, the aforesaid Rule is violative of Article 14 of the Constitution of India.
14. It is argued that, after the process of admission had commenced, the Rules were amended on 28.10.2024. It is, therefore, contended that the Rules for admission to post graduate courses cannot be changed after process of admission had commenced. In support of the aforesaid, reference has been made to the Constitution Bench decision of the Supreme Court in Tej Prakash Pathak vs. Rajasthan High Court 4.
15. It is urged that for admission to Post Graduate course, merit alone, should be criteria to the exclusion of residence. Reliance is placed on decision of the Supreme 4 2024 SCC OnLine SC 3184 23 Court in Dr. Pradeep Jain vs. Union of India 5. However, it is submitted that the institutional based preference can be provided, if the same does not exceed 50%. It is pointed out that the aforesaid decision in Dr. Pradeep Jain (supra) has been followed in Dr. Prachi Almeida vs. Dean, Goa Medical College 6 and Magan Mehrotra vs. Union of India 7. Our attention has also been invited to the decision of the Constitution Bench of the Supreme Court in Saurabh Chaudri vs. Union of India 8 and Saurabh Chaudri (DR.) vs. Union of India 9.
16. Mr. A.Venkatesh, learned Senior Counsel for the petitioner in W.P.No.31093 of 2024, submitted that the State Government has no power to amend the 2021 Rules.
Alternatively, it is submitted that Rule VIII of the 2021 Rules is in violation of the Presidential Order, 1974. It is contended that since the process for admission to Post Graduate course had commenced on 09.11.2023, the protection of Section 95 of the Reorganisation Act is 5 (1984) 3 SCC 654 6 (2001) 7 SCC 640 7 (2003) 11 SCC 186 8 (2003) 11 SCC 146 9 (2004) 5 SCC 618 : 2004 SCC OnLine SC 668 24 available to the petitioner. It is urged that once the process of admission had commenced, the Rules for admission to post graduate courses could not have been amended midway. In support of the aforesaid submissions, reliance has been placed on the Constitution Bench decision of the Supreme Court in Tej Prakash Pathak vs. Rajasthan High Court, Division Bench decisions of Kerala and Madhya Pradesh High Courts in Dr. K.Varghese Philip vs. State of Kerala 10 and Dr. Diwakar Patel vs. State of Madhya Pradesh 11 respectively.
17. Mr. M.Surender Rao, learned Senior Counsel for the petitioners in W.P.Nos.30771 and 33149 of 2024 submitted that Rules I and VI of the 2021 Rules have not been amended while amending the Rules in the year 2024. It is further submitted that the notification dated 30.10.2024 issued by the University inviting applications for admission into Post Graduate Medical Degree Courses under Competent Authority Quota for 2024-25, is contrary to Rules I and VI of the 2021 Rules. Alternatively, it is 10 2003 SCC OnLine Ker 510 11 2023 (1) MPLJ 170 25 submitted that classification sought to be made by Rule VIII (ii) of the 2021 Rules is not based on any valid criteria and does not achieve the object for which the Rule has been enacted. It is argued that Rule VIII is in contravention of Section 3(2) of the 1983 Act. It is contended that the petitioners who are inservice candidates and have obtained the MBBS degree from the State of Andhra Pradesh cannot be treated as non-local candidates.
18. Mr. S.Satyam Reddy, learned Senior Counsel for the petitioner in W.P.No.30801 of 2024, submits that the petitioner has obtained the degree of MBBS from China and is an inservice candidate. It is also submitted that the petitioner has completed the requisite years of Government service and is therefore eligible to be treated as a local candidate under Rules I and VI of the 2021 Rules.
19. Mr. B.Shiva Kumar, learned counsel for the petitioner in W.P.No.32494 of 2024, has adopted the submissions made by the learned Senior Counsel for the petitioner in W.P.No.31854 of 2024.
26
20. Mr. K.R.K.V.Prasad, learned counsel for the petitioner in W.P.No.31161 of 2024 submitted that the petitioner is an inservice candidate and therefore, the petitioner has to be treated as a local candidate. It is argued that Rule VIII of the 2021 Rules is in contravention of Rules I and VI of the 2021 Rules. Learned counsel has adopted the submissions made by Mr. M.Surender Rao, learned Senior Counsel for the petitioners in W.P.Nos.30771 and 33149 of 2024.
21. Mr. S.Aravind, learned counsel for the petitioners in W.P.Nos.34019 and 34025 of 2024 has adopted the submissions made by Mr. B.Mayur Reddy, learned Senior Counsel for the petitioners in W.P.No.31288 of 2024 and other writ petitions. Alternatively, it is submitted that he is also adopting the submissions made by Mr. G.Vidya Sagar, learned Senior Counsel for the petitioner in W.P.No.31854 of 2024.
27(E) SUBMISSIONS ON BEHALF OF STATE:
22. On the other hand, learned Advocate General contended that Section 95 of the Reorganisation Act puts an end to any reference either to Presidential Order, 1974 or to Article 371D of the Constitution of India. It is urged that the State Government has not approached the President to seek any amendment in the Presidential Order, 1974, which deals with education. It is submitted that Section 95 of the Reorganisation Act is unambiguous and clear and therefore, the literal as well as purposive construction has to be given to it. Our attention has been invited to the Statement of Objects and Reasons of the Reorganisation Act and it has been contended that any other interpretation of Section 95 would defeat the object of the said Act. In support of the aforesaid submissions, reliance has been placed on the decisions of the Supreme Court in Zaffar Mohd. vs. State of West Bengal 12, 12 (1976) 1 SCC 428 28 V.Senthil Balaji vs. State 13 and Fertilizer Corporation of India Limited vs. Coromandal Sacks (P) Limited 14.
23. It is submitted that the State can amend the Rules and can introduce a residence based criteria for admission to Post Graduate course, in view of decisions in D.P.Joshi vs. State of Madhya Bharat 15 and Saurabh Chaudri vs. Union of India 16. It is further submitted that Explanation
(b) to Rule VIII (ii) of the 2021 Rules does not provide for requirement of domicile along with institutional preference. It is contended that any student who has studied from classes 8 to 12 in the State of Telangana is eligible for admission in local quota and is thus entitled to be treated as a local candidate for admission to Post Graduate course. It is pointed out that most of the petitioners have joined the MBBS course in the State of Telangana under 15% quota i.e., All India Quota and under the management quota. 13 (2024) 3 SCC 51 14 (2024) 8 SCC 172 15 1955 SCC OnLine SC 4 16 (2003) 11 SCC 146 29
24. It is pointed out that a two-Judge Bench of the Supreme Court in Tanvi Behl vs. Shrey Goel 17 has referred the question of providing reservation based on residence in respect of Post Graduate course for consideration of the Larger Bench. Our attention has been invited to a Division Bench decision of Madhya Pradesh High Court in Tikaram vs. State of Madhya Pradesh 18. It is pointed out that the law laid down by the Constitution Bench of the Supreme Court in Saurabh Chaudri vs. Union of India 19 binds this Court. It is contended that the principles laid down in Anant Madaan vs. State of Haryana 20 and Rajdeep Ghosh vs. State of Assam 21, though pertain to MBBS course are applicable for admission to Post Graduate course as well.
25. It is urged that the issue raised by Mr. G.Vidya Sagar, learned Senior Counsel for the petitioner in W.P.No.31854 of 2024, has already been answered by a Division Bench of this Court vide judgment dated 17 (2020) 13 SCC 675 18 2021 SCC OnLine MP 264 19 (2003) 11 SCC 146 20 (1995) 2 SCC 135 21 (2018) 17 SCC 524 30 11.09.2023 passed in W.P.No.18047 of 2023 and batch. It is also pointed out that the aforesaid judgment of this Court has attained finality, as the SLPs preferred against the said judgment, namely SLP (C) Nos.21397- 21407/2023, have been dismissed by the Supreme Court on 05.03.2024.
26. It is contended that the rules for admission to post graduate courses have not been changed in the midst of the process of admission. In support of the aforesaid submission, reliance has been placed on the decision of the Supreme Court in Nipun Tawari vs. State of Maharashtra 22.
(F) REJOINDER SUBMISSIONS ON BEHALF OF PETITIONERS:
27. Mr. G.Vidya Sagar, learned Senior Counsel for the petitioner in W.P.No.31854 of 2024 by way of rejoinder submitted that Section 95 of the Reorganisation Act nowhere provides that either Article 371D of the Constitution of India or the Presidential Order, 1974 made 22 2022 SCC OnLine SC 1501 31 therein would not apply to the State of Telangana. It is contended that Section 95 of the Reorganisation Act has to be read along with Sections 97, 100 and 101 of the said Act. It is urged that the statute has to be read as a whole and in its context. It is contended that by virtue of Section 97 of the Reorganisation Act, Article 371D of the Constitution of India and the Presidential Order, 1974 made therein continue to apply to the State of Telangana. It is argued that in any case the rule made under the Act cannot be contrary to a substantive provision, namely Section 3(2) of the 1983 Act. It is urged that under para 4 of the Presidential Order, 1974 the petitioner is eligible to seek admission to Post Graduate course as a local candidate, as the petitioner has passed the MBBS examination from the State of Telangana. However, Explanation (b) to Rule VIII (ii) of the 2021 Rules renders the petitioner ineligible. Therefore, the words appearing in the Explanation (b) to Rule VIII (ii) of the 2021 Rules "under Non-Local Quota in the State of Telangana, shall not be regarded as a Local Candidate" are contrary to para 4 of 32 the Presidential Order, 1974 and Section 3(2) of the 1983 Act. It is urged that in view of the mandate in Article 371D(10) of the Constitution of India, the Presidential Order takes precedence.
28. It is pointed out that the decision of the Supreme Court in Dr. Pradeep Jain vs. Union of India 23 does not apply to the State of Telangana, in view of Article 371D of the Constitution of India. It is also urged that the Division Bench of this Court in W.P.No.18047 of 2023 and batch has not dealt with the effect of the Presidential Order, 1974 on the 2021 Rules and the said decision has no bearing on the controversy involved in these writ petitions. It is also submitted that this Court is required to examine whether the rules for admission have been changed after the process of admission has begun.
29. Mr. M.Surender Rao, learned Senior Counsel for the petitioners in W.P.Nos.30771 and 33149 of 2024 by way of rejoinder submitted that the Presidential Order, 1974 is not in consonance with Article 371D(1) of the Constitution 23 (1984) 3 SCC 654 33 of India, as amended by Section 97 of the Reorganisation Act. It is further submitted that the Presidential Order, 1974 is outside the purview of adaptation under Section 101 of the Reorganisation Act and therefore the same does not apply to the State of Telangana. It is also submitted that no local area as defined under the Presidential Order, 1974 exists in the State of Telangana, the Presidential Order for this reason, also does not apply to the State of Telangana. It is contended that Rule VIII of the 2021 Rules in its entirety is required to be struck down, as no reservation can be provided on the basis of residence. It is contended that the existing laws as earlier applicable to the territories would be applicable to a new State until the new State provides for adaptation or modification of the law by way of repeal or amendment. In support of the aforesaid submission, reliance has been placed on the decision of the Supreme Court in State of Madhya Pradesh vs. Lafarge Dealers Association 24.
24 (2019) 7 SCC 584 34
30. Mr. A.Venkatesh, learned Senior Counsel for the petitioner in W.P.No.31093 of 2024, by way of rejoinder, submitted that even though the petitioner has studied in an educational institution in the State of Telangana for a period of five and half years, she is not entitled to be treated as a local candidate, whereas a candidate who may have studied for a period of four years in an educational institution in the State of Telangana is entitled to be treated as a local candidate.
31. Mr. B.Mayur Reddy, learned Senior Counsel for the petitioners in W.P.No.31288 of 2024 and other writ petitions, by way of rejoinder submitted that since the period of ten years has lapsed, neither Article 371D of the Constitution of India nor the Presidential Order, 1974 made thereunder applies to the State of Telangana. It is submitted that the State is competent to amend the Rules, however, the power to amend the Rules cannot be exercised in contravention of law. It is urged that since the period of ten years has lapsed, the decision rendered by the 35 Supreme Court in Dr. Pradeep Jain vs. Union of India 25 applies to the State of Telangana, as the special constitutional provision made in respect of Telangana has ceased to exist. Alternatively, it is contended that Rule VIII of the 2021 Rules should be read down so as to mean, not to exclude the students who have obtained the MBBS degree from an institution situate in the State of Telangana.
32. Mr. K.R.K.V.Prasad, learned counsel for the petitioner in W.P.No.31161 of 2024, by way of rejoinder, submitted that Rule VIII of the 2021 Rules, is in conflict with the Telangana Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 2018, and should be struck down. It is further submitted that by amending Rule VIII of the 2021 Rules, the inservice candidates have been excluded for consideration for admission to Post Graduate course in the State of Telangana.
25 (1984) 3 SCC 654 36
33. As certain new pleas were urged in the rejoinder submissions of the learned counsel for the petitioners, we heard the learned Advocate General again by way of clarification.
(G) REPLY SUBMISSIONS ON BEHALF OF STATE:
34. Learned Advocate General submitted that Rule IV of the 2021 Rules notified by G.O.Ms.No.155, Health, Medical & Family Welfare (C1) Department, dated 18.11.2021, provides for reservations and the aforesaid reservations continue to apply in the State of Telangana. The contention that inservice candidates have been excluded from consideration for admission to Post Graduate course is misconceived. It is also submitted that even though the question whether domicile/residence based reservation, particularly in admission to Post Graduate course, is constitutionally permissible, is pending consideration before the Larger Bench, yet this Court has to decide the issue, in view of the law laid down by the Supreme Court in Union Territory of Ladakh vs. Jammu and Kashmir 37 National Conference 26. It is also pointed out that reservation based on domicile for admission to Post Graduate course has also been provided in several States such as Tamil Nadu and Karnataka also.
35. We have considered the rival submissions made on both sides and have perused the record.
(H) ISSUES:
36. We may advert to the issues which arise for consideration, which can be stated as follows:
1. Whether in view of the mandate contained in Section 95 of the Andhra Pradesh Reorganization Act, 2014, Article 371D of the Constitution of India and the Presidential Order, 1974 made therein do not apply to the State of Telangana?
2. Whether the Presidential Order, 1974 applies to the State of Telangana, as the same has not been 26 2023 SCC OnLine SC 1140 38 adapted under Section 101 of the Andhra Pradesh Reorganisation Act, 2014?
3. Whether the State Government is competent to enact and amend the Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021?
4. Whether Rule VIII of the Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021 and Rule 8 of the AYUSH Rules, 2024 provide for a residence based reservation and whether the same is permissible in law?
5. Whether Explanation (b) to Rule VIII (ii) of the Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021 and Explanation (b) to Rule 8 (ii) of the AYUSH Rules, 2024 are in contravention of para 4 of the Presidential Order and Section 3(2) of the Andhra Pradesh Educational 39 Institutions (Regulation of Admissions Prohibition of Capitation Fee) Act, 1983?
6. Whether Rule VIII of the Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021 is violative of Rules I and VI of the said Rules, if so, its effect?
7. Whether Explanation (a) and (b) to Rule VIII (ii) of the Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021 and explanation (a) and (b) to Rule 8 (ii) of the AYUSH Rules, 2024 are violative of Article 14 of the Constitution of India inasmuch as it is not based on reasonable criteria?
8. Whether the Rules for admission to post graduate courses had been changed midway after commencement of process of admission by amending the 2021 Rules vide G.O.Ms.No.148, dated 28.10.2024? and 40
9. Whether Rule VIII of the Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021 and Rule 8 of the AYUSH Rules, 2024 deserve to be struck down in its entirety?
ISSUE Nos.1 and 2:
37. The first and second issues relate to applicability of Article 371D and the Presidential Order, 1974 to the State of Telangana. The aforesaid issues are inter-related and therefore we deal with them together. It is apposite to take note of Article 371D and the relevant para of Presidential Order, 1974 made thereunder as well as relevant provisions of the Reorganisation Act.
(a) Article 371D of the Constitution of India:
38. Article 371D of the Constitution of India was inserted by the Constitution (Thirty-second Amendment) Act, 1973, with effect from 01.07.1974 and dealt with the special provisions with regard to erstwhile State of Andhra Pradesh. Thereafter, it was amended by the Reorganisation 41 Act and deals with the special provisions which may be made by the President with respect to State of Andhra Pradesh or State of Telangana. Article 371D of the Constitution of India reads as under:
"371D. Special provisions with respect to the State of Andhra Pradesh or the State of Telangana.-
(1) The President may by order made with respect to the State of Andhra Pradesh or the State of Telangana, provide, having regard to the requirement of each State, for equitable opportunities and facilities for the people belonging to different parts of such State, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the States.
(2) An order made under clause (1) may, in particular,--
(a) require the State Government to organise any class or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accordance with such principles and procedure as may be specified in the order the persons holding such posts to the local cadres so organised;
(b) specify any part or parts of the State which shall be regarded as the local area--
(i) for direct recruitment to posts in any local cadre (whether organised 42 in pursuance of an order under this article or constituted otherwise) under the State Government;
(ii) for direct recruitment to posts in any cadre under any local authority within the State; and
(iii) for the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government;
(c) specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made--
(i) in the matter of direct recruitment to posts in any such cadre referred to in sub-clause (b) as may be specified in this behalf in the order;
(ii) in the matter of admission to any such University or other educational institution referred to in sub-clause
(b) as may be specified in this behalf in the order, to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such cadre, University or other educational institution, as the case may be.
(3) The President may, by order, provide for the constitution of an Administrative Tribunal for the State 43 of Andhra Pradesh and for the State of Telangana to exercise such jurisdiction, powers and authority [including any jurisdiction, power and authority which immediately before the commencement of the Constitution (Thirty-second Amendment) Act, 1973, was exercisable by any court (other than the Supreme Court) or by any tribunal or other authority] as may be specified in the order with respect to the following matters, namely:--
(a) appointment, allotment or promotion to such class or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order;
(b) seniority of persons appointed, allotted or promoted to such class or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order;
(c) such other conditions of service of persons appointed, allotted or promoted to such class or classes of posts in any civil service of the State or to such class or classes of civil posts under the State or to such class or classes of posts under the control of any 44 local authority within the State, as may be specified in the order.
(4) An order made under clause (3) may--
(a) authorize the Administrative Tribunal to receive representations for the redress of grievances relating to any matter within its jurisdiction as the President may specify in the order and to make such orders thereon as the Administrative Tribunal deems fit;
(b) contain such provisions with respect to the powers and authorities and procedure of the Administrative Tribunal (including provisions with respect to the powers of the Administrative Tribunal to punish for contempt of itself) as the President may deem necessary;
(c) provide for the transfer to the Administrative Tribunal of such classes of proceedings, being proceedings relating to matters within its jurisdiction and pending before any court (other than the Supreme Court) or tribunal or other authority immediately before the commencement of such order, as may be specified in the order;
(d) contain such supplemental, incidental and consequential provisions (including provisions as to fees and as to limitation, evidence or for the application of any law for the time being in force subject to any 45 exceptions or modifications) as the President may deem necessary.
(5) The order of the Administrative Tribunal finally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier:
Provided that the State Government may, by special order made in writing and for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect, as the case may be.
(6) Every special order made by the State Government under the proviso to clause (5) shall be laid, as soon as may be after it is made, before both Houses of the State Legislature.
(7) The High Court for the State shall not have any powers of superintendence over the Administrative Tribunal and no court (other than the Supreme Court) or tribunal shall exercise any jurisdiction, power or authority in respect of any matter subject to the jurisdiction, power or authority of, or in relation to, the Administrative Tribunal.
(8) If the President is satisfied that the continued existence of the Administrative Tribunal is not necessary, the President may by order abolish the Administrative Tribunal and make such provisions in such order as he may deem fit for the transfer and 46 disposal of cases pending before the Tribunal immediately before such abolition.
(9) Notwithstanding any judgment, decree or order of any court, tribunal or other authority,--
(a) no appointment, posting, promotion or transfer of any person--
(i) made before the 1st day of November, 1956, to any post under the Government of, or any local authority within, the State of Hyderabad as it existed before that date; or
(ii) made before the commencement of the Constitution (Thirty-second Amendment) Act, 1973, to any post under the Government of, or any local or other authority within, the State of Andhra Pradesh; and
(b) no action taken or thing done by or before any person referred to in sub-clause (a), shall be deemed to be illegal or void or ever to have become illegal or void merely on the ground that the appointment, posting, promotion or transfer of such person was not made in accordance with any law, then in force, providing for any requirement as to residence within the State of Hyderabad or, as the case may be, within any part of the State of Andhra Pradesh, in respect of such appointment, posting, promotion or transfer.47
(10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force."
From perusal of Article 371D (10) of the Constitution of India, it is evident that the same contains a non- obstante clause and therefore, the provisions of the Article 371D and of any order made by the President shall have effect over any other provision of the Constitution or in any other law.
(b) Andhra Pradesh Reorganisation Act, 2014:
39. The Act is an Act to provide for reorganisation of the erstwhile State of Andhra Pradesh and for matters therewith. The erstwhile State of Andhra Pradesh was bifurcated into successor States of Andhra Pradesh and Telangana, under the provisions of Reorganisation Act. Part XI of the Reorganisation Act deals with equal opportunities for quality higher education to all students. Section 97 deals with amendment of Article 371D of the Constitution of India, whereas Section 101 deals with power to adapt 48 laws. Sections 95, 97 and 101 are extracted below for the facility of reference:
"95. Equal opportunities for quality higher education to all students: In order to ensure equal opportunities for quality higher education to all students in the successor States, the existing admission quotas in all government or private, aided or unaided, institutions of higher, technical and medical education in so far as it is provided under article 371D of the Constitution, shall continue as such for a period of ten years during which the existing common admission process shall continue.
97. Amendment of Article 371D of the Constitution: On and from the appointed day, in Article 371D of the Constitution:
(a) in the marginal heading, for the words "the State of Andhra Pradesh", the words "the State of Andhra Pradesh or the State of Telangana" shall be substituted;
(b) for clause (1), the following clause shall be substituted, namely:
"(1) The President may by order made with respect to the State of Andhra Pradesh or the State of Telangana, provide, having regard to the requirement of each State, for equitable opportunities and facilities for the people belonging to different parts of such State, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the States.";49
(c) in clause (3), for the words "the State of Andhra Pradesh", the words "the State of Andhra Pradesh and for the State of Telangana" shall be substituted.
101. Power to adapt laws: For the purpose of facilitating the application in relation to the State of Andhra Pradesh or the State of Telangana of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.
Explanation.--In this section, the expression "appropriate Government" means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government."
40. Part XII of the Reorganisation Act deals with legal and miscellaneous provisions. By Section 97 of the Reorganisation Act, Article 371D of the Constitution of India was amended with effect from 02.06.2014. Section 97 50 (1) of the Reorganisation Act, which substitutes clause (1) of Article 371D reads as under:
"(1) The President may by order made with respect to the State of Andhra Pradesh or the State of Telangana, provide, having regard to the requirement of each State, for equitable opportunities and facilities for the people belonging to different parts of such State, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the States."
41. The amended Article 371D (1) of the Constitution of India empowers the President to provide, having due regard to the requirement of each State for equitable opportunities and facilities for the people belonging to different parts of State of Telangana, in the matter of public employment and in the matter of education and different provisions may be made for various parts of Telangana.
42. In exercise of power conferred, under the unamended Article 371D, two Presidential Orders, in the matter of education and public employment were made namely; the Andhra Pradesh Educational Institutions 51 (Regulation of Admissions) Order, 1974 and the Andhra Pradesh Public Employment (Organisation of Local cadres and Regulation of Direct Recruitment) Order, 1975. It is pertinent to note that the Presidential Order issued in the year 1975 was superseded and a new Order after formation of the State of Telangana in exercise of powers under Article 371D (1) of the Constitution, was made by the President, for the State of Telangana, namely, the Telangana Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 2018. The power under Article 371D of the Constitution of India has been invoked after formation of the State of Telangana and an order relating to public employment has been framed for the State of Telangana in the year 2018. Thus, it is evident that Article 371D of the Constitution of India applies to the State of Telangana.
43. In exercise of powers conferred by Section 101 of the Reorganisation Act, the Governor of Telangana has made Telangana Adaptation of Laws Order, 2016. Paragraphs 6 and 7 of the aforesaid order read as under: 52
"6. All the other laws, including those made under the adapted Acts, specified in Column (4) of the Second Schedule, which were in existence as on 02.06.2014, but not adapted as on the date of this Order, shall be deemed to have been adapted to the State of Telangana.
7. The enactments specified in the Third Schedule shall stand repealed, to the extent mentioned in the fifth column thereof."
44. From perusal of paragraph 6 of the above order, it is evident that all other laws including the laws made under the adapted Acts specified in clause (4) of the Schedule, but not adapted as on the date of 2016 Order shall be deemed to have been adapted to the State of Telangana. By virtue of paragraph 7 of the aforesaid order, the enactments specified in Third Schedule had been repealed. The Presidential Order, 1974, made in relation to education by the President does not find place in the Schedules appended to the Order. As stated supra, the Presidential Order made in respect of education in the year 1974 has neither been amended nor repealed by the State of Telangana. Therefore, in view of paragraph 6 of 53 the Telangana Adaptation of Laws Order, 2016 the same is deemed to have been adapted for the State of Telangana.
45. Section 95 of the Reorganisation Act is an enabling provision and mandates that in order to ensure equal opportunities for quality higher education to all students in the successor states, the existing admission quotas in Government or Private, aided or unaided, institutions of higher, technical and medical education insofar as it is provided under Article 371D of the Constitution of India shall continue for a period of ten (10) years during which the existing common admission process shall continue. In view of the mandate contained in Section 95, the State Government ought to have taken appropriate steps to seek amendment in Presidential Order, 1974, insofar as it pertains to education, as was done in the case of Presidential Order, 1975 in the matter of public employment. However, the State Government admittedly did not approach the President seeking any amendment or modification of the Presidential Order, 1974, which deals with education. However, instead of seeking amendment, 54 the State Government enacted the Telangana Adaptation of Laws Order, 2016, and made Presidential Order, 1974 applicable to the State of Telangana. Therefore, the contention that the Presidential Order, 1974 does not apply to State of Telangana in view of mandate contained in Section 95 of the Reorganisation Act is not worthy of acceptance.
46. Similarly, the contention that the Presidential Order, 1974 has not been adapted by the State of Telangana under Section 101 of the Reorganisation Act is sans substance. Accordingly, Issue Nos.1 and 2 are answered by stating that Article 371D of the Constitution of India as well as the Presidential Order, 1974, which deals with education apply to the State of Telangana. Issue No.3:
47. Now, we deal with the third issue, namely the Competence of the State Government to enact the Rules. At this stage, it is apposite to take note of the Andhra Pradesh Educational Institutions (Regulation of 55 Admissions, Prohibition of Capitation Fee) Act, 1983, and the Rules.
48. The State Legislature in exercise of powers conferred by Entry 25 of the Concurrent List to the Seventh Schedule to the Constitution of India has enacted the Act, namely the Andhra Pradesh Educational Institutions (Regulation of Admissions, Prohibition of Capitation Fee) Act, 1983. Section 3 of the Act deals with Regulation of admission into educational institutions and enables the Government to frame the Rules. Section 15 of the Act deals with power of the State Government to make rules for carrying the purposes of the Act. In exercise of powers under Sections 3 and 15(1) of the Act, the State Government has framed the Rules, namely the Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021.
49. The Government of Telangana, under Telangana Adaptation of Laws Order, 2016, has adapted the Andhra Pradesh Educational Institutions (Regulation of Admissions, Prohibition of Capitation Fee) Act, 1983. The 56 aforesaid Act, therefore, applies to the State of Telangana. Therefore, the State Government is competent to frame the Rules. As the State Government has power to frame the rules under the Act, it necessarily has the power to amend the same. Accordingly, the third issue is answered by stating that the State Government is competent to enact the 2021 Rules and to amend the same.
Issue No.4:
50. Now, we deal with the fourth issue, whether Rule VIII of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024 provide for a residence based reservation and whether the same is permissible in law.
51. A careful scrutiny of Rule VIII of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024 reveal that a candidate in order to be eligible for admission to postgraduate course should be (i) Indian National, (ii) person of Indian Origin/Overseas Citizen of India cardholder, (iii) a local candidate. Rule VIII (ii) of the 2021 Rules and Rule 8 (ii) of the AYUSH Rules, 2024 define 'local candidate' to mean a 57 candidate who has studied in educational institution in the State of Telangana for a period of four consecutive years ending with the academic year in which he appeared as the case may be first appeared in relevant qualifying examination. Thus, Rule VIII (ii) of the 2021 Rules and Rule 8 (ii) of the AYUSH Rules, 2024 treat all the candidates to be local candidates who have passed the MBBS/BHMS/BAMS examination from the State of Telangana. Explanation (a) provides that a candidate who has studied MBBS in a state-wide institution outside the State of Telangana shall also be treated as local candidate.
52. However, Explanation (b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8 (ii) of the AYUSH Rules, 2024 mandate that if a candidate has taken admission to MBBS/BHMS/BAMS course under non-local category in the State of Telangana, he/she shall not be treated as local candidate. Thus, Explanation (b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8 (ii) of the AYUSH Rules, 2024 mandate that in order to be a local candidate, the candidate must have been admitted to 58 MBBS/BAMS/BHMS course under the local quota. A candidate in order to seek admission to MBBS course under the local quota has to study in an educational institution in the State of Telangana, for a period of not less than four consecutive academic years ending with the academic year in which he appeared, or as the case may be, first appeared in the relevant qualifying examination or has resided in the local area for a period of not less than four years immediately preceding the date of commencement of the relevant qualifying examination. Therefore, Explanation (b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8(ii) of the AYUSH Rules, 2024 provide for reservation based on residence for admission to post graduate courses.
53. Now we may examine whether the requirement of admission in qualifying examination under local quota contained in Explanation (b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8(ii) of the AYUSH Rules, 2024 is in contravention of law.
59
54. Now we may advert to the decisions of the Supreme Court. In D.P.Joshi vs. State of Madhya Bharat 27, a Constitution Bench of the Supreme Court in a petition under Article 32 of the Constitution of India dealt with a challenge made by a student to the validity of rule framed by the State of Madhya Bharat. The impugned rule required the student who was not resident of Madhya Bharat, to pay a sum of Rs.1,500/- as capitation fee, in addition to tuition fee and other charges. The Supreme Court upheld the validity of the said rule and held that the object of classification under the impugned rule was to help to some extent, the students, who were residents of Madhya Bharat, in prosecution of their studies. It was further held that education being the State subject and one of the directive principles, the State was justified in making an effective provision, for education within the limits of its economy. The classification was held to be valid and was held to be based on a ground which had reasonable relation to the subject matter of the litigation. 27 1955 SCC OnLine SC 4 60
55. A three-Judge bench of Supreme Court in Dr. Pradeep Jain vs. Union of India 28 dealt with the question whether admission to Medical Colleges both at undergraduate and postgraduate level can be confined only to those who have a domicile or resident of that State for a specified number of years irrespective of merit. The aforesaid issue was answered in paragraph 22, the relevant portion of which is extracted below for the facility of reference.
"22. ... ... ... We are therefore of the view that so far as admissions to post-graduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post-graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post-graduate course in the same medical college or 28 (1984) 3 SCC 654 61 university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all-India basis."
56. In Anant Madaan vs. State of Haryana 29, a two- Judge Bench of the Supreme Court, placing reliance on the Constitution Bench decision in D.P.Joshi vs. State of Madhya Bharat 30, held that residence based reservation for admission to post graduate course is permissible as long as there is no total reservation on the basis of residence or institution.
29 (1995) 2 SCC 135 30 1955 SCC OnLine SC 4 62
57. In Dr. Prachi Almeida vs. Dean, Goa Medical College 31, a two-Judge Bench of the Supreme Court dealt with the case of a petitioner, who was admitted to Goa Medical College under 15% All India Quota. The petitioner therein completed her course and internship from Goa. Thereafter, she applied for admission to postgraduate course. However, she was denied admission on the ground that petitioner did not fulfil the requirement of residence prescribed under Rules for admission to Postgraduate Degree Courses for Goa University at Goa Medical College Rules, 1998, in the State of Goa for a period of 10 years. It was held that students falling under 15% All India Quota, should be allowed to compete in the State where they studied, irrespective of rule of residence. Accordingly, the respondents were directed to consider the case of the petitioner, in the said case without reference to the rule relating to requirement of 10 years.
31 (2001) 7 SCC 640 63
58. In Magan Mehrotra vs. Union of India 32, a three- Judge Bench of the Supreme Court in a petition under Article 32 dealt with the validity of the condition stipulated in the bulletin of the information for postgraduate course, which stipulated that candidates who have passed MBBS examination, in any University other than Delhi University having been allotted the same under 15% quota by Director General, Health Services, would also be eligible if he /she is permanent resident of National Capital Territory of Delhi. The aforesaid condition was held to be contrary to the direction issued by the Supreme Court in Dr. Pradeep Jain vs. Union of India 33 and was struck down.
59. In Saurabh Chaudri vs. Union of India 34, a challenge was made to the notification issued by the Delhi University for institutional preference for admission to post graduate medical courses. The aforesaid notification was questioned by the appellants therein claiming themselves to be residents of Delhi. A two-Judge Bench of the 32 (2003) 11 SCC 186 33 (1984) 3 SCC 654 34 (2003) 11 SCC 146 64 Supreme Court referred the matter to a three-Judge Bench of the Supreme Court. Thereupon, a three-Judge Bench in view of the decision in Magan Mehrotra vs. Union of India 35, directed the matter to be placed before the Constitution Bench. The Constitution Bench formulated the core issue in paragraph 2 of its decision, which reads as under:
"2. The core question involved in these writ petitions and appeal centres around the constitutional validity of reservation whether based on domicile or institution in the matter of admission into postgraduate courses in government-run medical colleges."
In paragraph 10, it was held as under:
"10. The question which was initially raised in the writ petition was as to whether reservation made by way of institutional preference is ultra vires Articles 14 and 15 of the Constitution of India; but during hearing a larger issue viz. as to whether any reservation, be it on residence or institutional preference, is constitutionally permissible, was raised at the Bar."
35 (2003) 11 SCC 186 65 Thereafter, in paragraphs 29 to 32, it was held as under:
"29. The first question that arises for consideration is, whether the reservation on the basis of domicile is impermissible in terms of clause (1) of Article 15 of the Constitution of India. The term "place of birth" occurs in clause (1) of Article 15 but not "domicile". If a comparison is made between Article 15(1) and Article 16(2) of the Constitution of India, it would appear that whereas the former refers to "place of birth" alone, the latter refers to both "domicile" and "residence" apart from place of birth. A distinction, therefore, has been made by the makers of the Constitution themselves to the effect that the expression "place of birth" is not synonymous to the expression "domicile" and they reflect two different concepts. It may be true, as has been pointed out by Shri Salve and pursued by Mr Nariman, that both the expressions appeared to be synonymous to some of the members of the Constituent Assembly but the same, in our opinion, cannot be a guiding factor. In D.P. Joshi case [AIR 1955 SC 334 : (1955) 1 SCR 1215] a Constitution Bench held so in no uncertain terms.
30. This Bench is bound by the said decision.
31. In State of U.P. v. Pradip Tandon [(1975) 1 SCC 267] this Court observed: (SCC p. 277, para 29) "29. The reservation for rural areas cannot be sustained on the ground that the rural areas 66 represent socially and educationally backward classes of citizens. This reservation appears to be made for the majority population of the State. Eighty per cent of the population of the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. Poverty is found in all parts of India. In the instructions for reservation of seats it is provided that in the application form a candidate for reserved seats from rural areas must submit a certificate of the District Magistrate of the district to which he belonged that he was born in rural area and had a permanent home there, and is residing there or that he was born in India and his parents and guardians are still living there and earn their livelihood there. The incident of birth in rural areas is made the basic qualification. No reservation can be made on the basis of place of birth, as this would offend Article 15."
32. Answer to the said question must, therefore, be rendered in the negative."
The Constitution Bench, thereafter dealt with the issue whether the reservation by way of institutional preference is ultra vires Article 14 of the Constitution of India. In paragraphs 38 to 72, the validity of reservation by 67 way of institutional preference was upheld. However, the same was confined to 50% of the seats.
60. In Nikhil Himthani vs. State of Uttarakhand 36, a two-Judge Bench of the Supreme Court dealt with the case of petitioner, who was a permanent resident of Delhi and was admitted in the MBBS course in State of Uttarakhand under 15% reserved seats for All India Quota. The petitioner therein thereafter appeared in the post graduate examination. The information bulletin issued by the Department of Medical Education, Government of Uttarakhand provided that the candidate must have passed the MBBS examination from any of the Medical Colleges in Uttarakhand and must had been admitted through the competitive examination namely, Uttarakhand State PMT. The Supreme Court relied on the decisions rendered by its three-Judge Bench in Magan Mehrotra vs. Union of India 37 and struck down the said requirement on the ground that the same is violative of Article 14 of the Constitution of India.
36 (2013) 10 SCC 237 37 (2003) 11 SCC 186 68
61. In Vishal Goyal vs. State of Karnataka 38, a two- Judge Bench of the Supreme Court by placing reliance on the decision in Dr. Pradeep Jain vs. Union of India 39 held that requirement in the information bulletin that only "A candidate of Karnataka origin" was eligible to appear in the postgraduate examination is violative of Article 14 of the Constitution of India and the same was struck down. In Dr. Kriti Lakhina vs. State of Karnataka 40, a two- Judge Bench of the Supreme Court struck down the similar requirement and held that the issue is covered by the decision of the Supreme Court in Vishal Goyal vs. State of Karnataka 41.
62. In Rajdeep Ghosh vs. State of Assam 42, a two- Judge Bench of the Supreme Court dealt with the validity of Rule 3 (1) (c) of Medical Colleges and Dental Colleges of Assam (Regulations of Admission into 1st year MBBS/BDS Courses) Rules, 2017 which prescribed eligibility criteria 38 (2014) 11 SCC 456 39 (1984) 3 SCC 654 40 (2018) 17 SCC 453 41 (2014) 11 SCC 456 42 (2018) 17 SCC 524 69 for a State quota seats. The rule required a candidate to study from Class VII to Class XII in State of Assam and has to pass the qualifying examination or its equivalent examination from any institute in the State of Assam. It was held that it is permissible to lay down requirement of residence/domicile in respect of basic course of MBBS. In paragraph 31, it was held as under:
"31. As held in the aforesaid decisions, it is permissible to lay down the essential educational requirements, residential/domicile in a particular State in respect of basic courses of MBBS/ BDS/Ayurvedic. The object sought to be achieved is that the incumbent must serve the State concerned and for the emancipation of the educational standards of the people who are residing in a particular State, such reservation has been upheld by this Court for the inhabitants of the State and prescription of the condition of obtaining an education in a State. The only distinction has been made with respect to postgraduate and postdoctoral superspeciality course."
63. A two-Judge Bench of the Supreme Court in Tanvi Behl vs. Shrey Goel 43, referred its decisions in Dr. Pradeep Jain vs. Union of India 44 and Magan 43 (2020) 13 SCC 675 44 (1984) 3 SCC 654 70 Mehrotra vs. Union of India 45 and while dealing with the Constitution Bench decision in Saurabh Chaudri vs. Union of India 46, in paragraphs 15.2, 16 and 18 held as under:
"15.2. Thus, the answer by the Constitution Bench to the question as to whether domicile/residence- based reservation is impermissible had been in a crisp and terse negative. In other words, the answer was in the affirmative on permissibility. For comprehension of the basis of such answer by the Constitution Bench, appropriate it would be to closely look at the two decisions referred to in the aforesaid paras 29 and 31 in Saurabh Chaudri [Saurabh Chaudri v. Union of India, (2003) 11 SCC 146 : 2 SCEC 452] .
16. From the aforesaid, it is but clear that in Saurabh Chaudri [Saurabh Chaudri v. Union of India, (2003) 11 SCC 146 : 2 SCEC 452] , the Constitution Bench found that the other Constitution Bench in D.P. Joshi [D.P. Joshi v. State of M.B., AIR 1955 SC 334] had rejected the contention that no provision could be made on the basis of domicile/residence in relation to students taken in the medical colleges. In other words, in Saurabh Chaudri [Saurabh Chaudri v. Union of India, (2003) 11 SCC 146 : 2 SCEC 452] , this Court relied upon the decision in D.P. Joshi [D.P. Joshi v. State of M.B., AIR 1955 SC 334] while holding that domicile/residence-
45 (2003) 11 SCC 186 46 (2003) 11 SCC 146 71 based reservation was not impermissible. Standing this exposition by the Constitution Bench of this Court, it is difficult to conclude that domicile/residence-based reservation/preference is a concept totally overthrown and jettisoned.
18. It appears that for the Constitution Bench in Saurabh Chaudri [Saurabh Chaudri v. Union of India, (2003) 11 SCC 146 : 2 SCEC 452] having largely approved the observation in Pradeep Jain case [Pradeep Jain v. Union of India, (1984) 3 SCC 654] in relation to the question of institutional preference, the High Court has assumed that all the observations in Pradeep Jain [Pradeep Jain v. Union of India, (1984) 3 SCC 654] stood ipso facto approved. True it is that in Pradeep Jain [Pradeep Jain v. Union of India, (1984) 3 SCC 654] , a three-Judge Bench of this Court stated its total disapproval of domicile/residence-based reservation in PG medical courses [ In Pradeep Jain, (1984) 3 SCC 654 total disapproval of domicile/residence-based reservation in PG medical courses was stated in the following:
(SCC pp. 692-93, para 22)"22. ... We are, therefore, of the view that so far as admissions to postgraduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the 72 State shall not be a ground for reservation in admissions to postgraduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the postgraduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50% of the total number of open seats available for admission to the postgraduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the postgraduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all-India basis."(emphasis supplied)] but such observations in Pradeep Jain [Pradeep Jain v. Union of India, (1984) 3 SCC 654] , when read with reference to aforesaid paras 29 to 32 of the decision in Saurabh Chaudri [Saurabh Chaudri v. Union of India, (2003) 11 SCC 146 : 2 SCEC 452], the inevitable result is that domicile/residence-based reservation has not been taken as an anathema altogether to these admission processes."73
64. The Division Bench of the Supreme Court in Tanvi Behl vs. Shrey Goel 47 was of the opinion that the issue whether domicile/residence based reservation in admission to post graduate medical courses is constitutionally permissible requires consideration by a Larger Bench.
Therefore, reference was made to the Larger Bench. Paragraph 25 is extracted below for the facility of reference:
"25. Accordingly we would propose the following questions to be examined by a larger Bench of this Court:
25.1. As to whether providing for domicile/ residence-based reservation in admission to "PG medical courses" within the State quota is constitutionally invalid and is impermissible? 25.2. (a) If answer to the first question is in the negative and if domicile/residence-based reservation in admission to "PG medical courses" is permissible, what should be the extent and manner of providing such domicile/residence-based reservation for admission to "PG medical courses" within the State quota seats?
25.2. (b) Again, if domicile/residence-based reservation in admission to "PG medical courses" is permissible, considering that all the admissions are to be based on the merit and rank obtained in NEET, what should be the modality of providing such 47 (2020) 13 SCC 675 74 domicile/residence-based reservation in relation to the State/UT having only one medical college? 25.3. If answer to the first question is in the affirmative and if domicile/residence-based reservation in admission to "PG medical courses" is impermissible, as to how the State quota seats, other than the permissible institutional preference seats, are to be filled up?"
It is not in dispute that the aforesaid reference has not been answered by the Supreme Court.
65. We may refer to another well-settled legal principle that this Court is required to decide the matter on the basis of law as it stands and it is not open, unless specifically directed by the Supreme Court to await the outcome of the reference [See: Union Territory of Ladakh vs. Jammu and Kashmir National Conference 48]. Therefore, notwithstanding the order of reference in Tanvi Behl vs. Shrey Goel 49, this Court is required to decide the issue with regard to the validity of the Rule VIII of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024.
48 2023 SCC OnLine SC 1140 49 (2020) 13 SCC 675 75
66. The Constitution Bench of the Supreme Court in D.P.Joshi vs. State of Madhya Bharat 50 held that education being a State subject and one of the Directive Principles, the State was justified in making an effective provision for education within the limits of its economy. Subsequently, the three-Judge Bench of Supreme Court in Dr. Pradeep Jain vs. Union of India 51 held that it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference in a matter of admission to Post Graduate course. Thereafter, a two-Judge Bench of the Supreme Court in Anant Madaan vs. State of Haryana52, while placing reliance on a decision rendered by the Constitution Bench of the Supreme Court in D.P.Joshi vs. State of Madhya Bharat 53 held that residence based reservation is permissible so long as there is no total reservation on the basis of residence or institution. A two- Judge Bench of the Supreme Court in Tanvi Behl vs. 50 1955 SCC OnLine SC 4 51 (1984) 3 SCC 654 52 (1995) 2 SCC 135 53 1955 SCC OnLine SC 4 76 Shrey Goel 54 considered its previous judgments in Magan Mehrotra vs. Union of India 55, Dr. Pradeep Jain vs. Union of India 56, and a Constitution Bench of the Supreme Court in Saurabh Chaudri vs. Union of India 57 and interpreted the ratio of its previous decisions, which have already been referred to supra. In Tanvi Behl (supra), while referring to its previous decisions in D.P.Joshi (supra) and Saurabh Chaudri (supra), it was held that domicile/residence based reservation is not the concept totally overthrown or jettisoned and that residence based reservation can be provided in the matter of admission to post graduate courses and same is permissible in law. The fourth issue is accordingly answered.
Issue No.5:
67. Now, we advert to the fifth issue, whether Explanation
(b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8(ii) of the AYUSH Rules, 2024 are in violation of para
54 (2020) 13 SCC 675 55 (2003) 11 SCC 186 56 (1984) 3 SCC 654 57 (2003) 11 SCC 146 77 4 of the Presidential Order, 1974 and Section 3(2) of the 1983 Act.
68. Even though it may be permissible in law to provide for residence based reservation for admission to post graduate courses, yet the issue whether Explanation (b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8 (ii) of the AYUSH Rules, 2024 are in violation of para 4 of the Presidential Order, 1974 framed in exercise of powers under Article 371D of the Constitution of India and Section 3(2) of the 1983 Act requires consideration, in view of applicability of Article 371D of the Constitution of India and Presidential Order, 1974 to the State of Telangana.
69. Before proceeding further, we may take note of well settled legal proposition that power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of the authority conferred by the Act (see Hukum Chand vs. Union of 78 India 58, Indian Young Lawyers Association (Sabarimala Temple - 5 J) vs. State of Kerala 59). The rules cannot be made to supplant provisions of the enabling Act, but to supplement it (see State of Rajasthan vs. LBS B.Ed., College 60). In case of conflict between the substantive provisions of the enabling Act and the rules, or any other delegated legislation made under it, the substantive provision of the Act shall prevail (see ITW Signode India Limited vs. Collector of Central Excise 61).
70. In exercise of powers conferred under clauses (1) and (2) of Article 371D of the Constitution of India, the President has made an order, namely Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974. Paras 3 and 4 of the Presidential Order define the expressions "local area" and "local candidate". Paragraphs 3 and 4 are extracted below for the facility of reference:
"3. Local Area:- (1) The part of the State comprising the districts of Srikakulam, Visakhapatnam, West Godavari, East Godavari, Krishna, Guntur and Prakasam shall be 58 AIR 1972 SC 2427 59 (2019) 11 SCC 1 60 (2016) 16 SCC 110 61 (2004) 3 SCC 48 79 regarded as the local area for the purposes of admission to the Andhra University, the Nagarjuna University and to any other educational institution (other than State- wide University or a State-wide educational institution) which is subject to the control of the State Government and is situated in that part.
(2) The part of the State comprising the districts of Adilabad, Hyderabad, Karimnagar, Khammam, Mahaboobnagar, Medak, Nalgonda, Nizamabad and Warangal shall be regarded as the local area for the purposes of admission to the Osmania University, the Kakatiya University and to any other educational institution (other than a State-wide University or State-
wide educational institution) which is subject to the control of the State Government and is situated in that part.
(3) The part of the State comprising the districts of Anantapur, Cuddapah, Kurnool, Chittoor and Nellore shall be regarded as the local area for the purposes of admission to Sri Venkateswara University and to any other educational institution (other than a State-wide University or State-wide educational institution) which is subject to the control of the State Government and is situated in that part.
4. Local Candidate:- (1) A candidate for admission to any course of study shall be regarded as a local candidate in relation to a local area -
(a) if he has studied in an educational institution or educational institutions in such local area for a period of not less than four consecutive academic years ending 80 with the academic year in which he appeared or, as the case may be, first appeared in the relevant qualifying examination; or
(b) where, during the whole or any part of the four consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared for the relevant qualifying examination, he has not studied in any educational institution, if he has resided in that local area for a period of not less than four years immediately preceding the date of commencement of the relevant qualifying examination in which he appeared or, as the case may be, first appeared."
71. The scope and ambit of Para 4(1) and 4(2) of the Presidential Order, 1974 was considered by a Full Bench of the erstwhile Andhra Pradesh High Court in its decision in Bathina Rajya Shilpa vs. NTR University of Health Sciences 62. Paras 43, 45 and 46 of the aforesaid decision are extracted below for the facility of reference:
"43. In order to be treated as local candidate in relation to a local area under Clause (a) one must have studied in an educational Institution or educational institutions in the local area for a period of not less than four consecutive academic years ending with the academic year in which he or she first appeared in the relevant qualifying examination.
62 AIR 2002 AP 115 81
45. However, a candidate who is not regarded as local a candidate under para 4(1) can be treated as a local candidate under sub-paragraph (2) if he/she fulfils either Clause (a) or Clause or Clause (b). Again Clause (b) is applicable only to candidates who have not studied in educational institutions but have resided in the State for a period of not less than seven consecutive academic years immediately preceding the date of commencement of the relevant qualifying examination in which he or he appeared or first appeared. Since the petitioner has studied in educational institutions, she doesn't come under that clause.
46. In order to be treated as local candidate under Clause (a) of sub-paragraph (2) of Paragraph 4 one must have studied in an educational institution or educational institutions in the State for a period of not less than seven consecutive academic years ending with the academic year in which he or she first appeared in the relevant qualifying examination and such candidate will be regarded as a local candidate in relation to (1) such local area where he has studied for the maximum period out of the said period of seven years or (2) where the periods of his or her study in two or more local areas are equal, such local area where the candidate has studied last in such equal periods. Admittedly, the appellant has not fulfilled this clause also as she had not studied for seven consecutive academic years in the State of Andhra Pradesh ending with the relevant qualifying examination of Intermediate. She had studied only for 82 five years in the State out of the seven consecutive years ending with the qualifying examination and she studied the qualifying examination in Gujarat State. In order to be treated as a local candidate under 4(2), it is essential that she must have studied seven consecutive academic years ending with the relevant qualifying examination in the State."
72. Section 3 (2) of the 1983 Act provides that admission to the education institution shall be subject to the rules and the Presidential Order. Sections 3 and 15 of the 1983 Act read as under:
"3. Regulation of admission into educational institution:- (1) Subject to such rules as may be made in this behalf, admission into educational institutions shall be made either on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test conducted by such authority and in such manner as may be prescribed:
Provided that admission into Agriculture, Dental, Engineering, Medical, Pharmacy and Veterinary Colleges shall be made on the basis of the ranking assigned by weightage to the marks secured in the relevant group subjects namely, Biology, Physics, Chemistry or Mathematics, Physics, Chemistry, as the case may be, in the Intermediate Public Examination or equivalent Examination and weightage to the marks secured in the common entrance test as may be prescribed.83
(2) The admission into educational institutions under sub-section (1) shall be subject to such rules as may be made by 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.
(3) Notwithstanding anything in sub-sections (1) and (2) it shall be lawful for the Government, to admit students belonging to other States on reciprocal basis and the nominees of the Government of India, into Medical and Engineering Colleges in accordance with such rules as may be prescribed:
Provided that admission of students into the Regional Engineering College, Warangal to the extent of one-half of the total number of seats shall be in accordance with the guidelines issued by the Government of India, from time to time.
15. Power to make rules:- (1) The Government may, by notification, make rules for carryingout all or any of the purposes of this Act.
(2) Every rule made under this section shall immediately after it is made be laid before each House of the State Legislature if it is in session and if it is not in session, in the session immediately following, for a total period of fourteen days which may be comprised in one session, or in two successive sessions and if before the expiration of the session in which it is so laid or the session immediately following, both Houses agree in 84 making any modification in the rule or in the annulment of the rule, the rule shall from the date on which the modification or annulment is notified, have effect only in such modified form or shall stand annulled, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule."
73. It is apposite to read paras 3 and 4 of the Presidential Order, 1974 and Rule VIII (ii) of the 2021 Rules and Rule 8
(ii) of the AYUSH Rules, 2024 in juxtaposition. Paras 3 and 4 of the Presidential Order, Rule VIII (ii) of the 2021 Rules and 1974 Rule 8 (ii) of the AYUSH Rules, 2024
3. Local Area:- (1) The part of the Rule VIII of the 2021 Rules:
State comprising the districts of
(i) A candidate to be eligible for
Srikakulam, Visakhapatnam, West
admission into P.G. Medical courses
Godavari, East Godavari, Krishna,
under these rules should be an
Guntur and Prakasam shall be
Indian National/Person of Indian
regarded as the local area for the
Origin/Overseas Citizen of India Card purposes of admission to the Andhra Holder and be a Local candidate.
University, the Nagarjuna University and to any other educational (ii) 'Local candidate' means a institution (other than State-wide candidate who has studied in the University or a State-wide educational educational institutions in the State institution) which is subject to the of Telangana for a period of not less control of the State Government and than four (04) consecutive years is situated in that part. ending with the academic year in which he appeared or as the case (2) The part of the State may be, first appeared in the relevant comprising the districts of Adilabad, qualifying examination subject to:
Hyderabad, Karimnagar, Khammam, Explanation (a): A candidate who is Mahaboobnagar, Medak, Nalgonda, regarded as a Local Candidate for the Nizamabad and Warangal shall be purpose of admission to 85 regarded as the local area for the Undergraduate (MBBS) in the State purposes of admission to the Osmania of Telangana, but has studied in a University, the Kakatiya University State-wide Institutions outside the and to any other educational Stat of Telangana, shall also be institution (other than a State-wide regarded as a Local Candidate. University or State-wide educational Explanation (b): A candidate, who institution) which is subject to the has secured admission to the control of the State Government and relevant Undergraduate Course is situated in that part.
(MBBS) under Non-Local Quota in the State of Telangana, shall not be (3) The part of the State regarded as a Local Candidate.
comprising the districts of Anantapur, Cuddapah, Kurnool, Chittoor and Nellore shall be regarded as the local Rule 8 of the AYUSH Rules, 2024:
area for the purposes of admission to
8. CRITERIA FOR ELIGIBILITY AS Sri Venkateswara University and to LOCAL CANDIDATE:
any other educational institution
(i) A candidate to be eligible for (other than a State-wide University or admission into P.G.AYUSH Courses State-wide educational institution) under these rules should be an which is subject to the control of the Indian National/Person of Indian State Government and is situated in Origin/ Overseas Citizen of India that part.
Card Holder and be a Local
4. Local Candidate:- (1) A candidate candidate.
for admission to any course of study (ii) 'Local candidate' means a
shall be regarded as a local candidate candidate who has studied in the
in relation to a local area - educational institutions in the State
(a) if he has studied in an of Telangana for a period of not less
educational institution or educational than four (04) consecutive years
institutions in such local area for a ending with the academic year in
period of not less than four which he appeared or as the case
consecutive academic years ending may be, first appeared in the relevant
with the academic year in which he qualifying examination, subject to:
appeared or, as the case may be, first Explanation (a): A candidate who is
appeared in the relevant qualifying regarded as a Local Candidate for the
examination; or purpose of admission to
(b) where, during the whole or any Undergraduate (UG AYUSH) course
part of the four consecutive academic in the State of Telangana, but has
years ending with the academic year studied in a State wide Institutions
86
in which he appeared or, as the case outside the State of Telangana, shall
may be, first appeared for the relevant also be regarded as a Local
qualifying examination, he has not Candidate.
studied in any educational institution, Explanation (b): A candidate who
if he has resided in that local area for has secured admission to the
a period of not less than four years Undergraduate (UG AYUSH) course
immediately preceding the date of under Non-Local Quota in the State
commencement of the relevant of Telangana, shall not be regarded
qualifying examination in which he as a Local Candidate.
appeared or, as the case may be, first
appeared.
74. Thus, a conjoint reading of paras 3 and 4 of the Presidential Order, 1974 and Rule VIII of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024, it is evident that under para 4 of the Presidential Order, a candidate who has studied in an educational institution situated in a local area for a period of not less than four consecutive academic years ending with the academic year in which he appeared, or as the case may be, first appeared in the relevant qualifying examination or has resided in the local area for a period of not less than four years immediately preceding the date of commencement of the relevant qualifying examination, is entitled to be treated as a local candidate.
However, in view of the mandate contained in Explanation
(b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to 87 Rule 8 (ii) of the AYUSH Rules, 2024, such candidates have been rendered ineligible to be treated as local candidates as they have not been admitted to the qualifying examination i.e., MBBS/BHMS/ BAMS under local quota. Therefore, the inevitable conclusion is Explanation (b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8 (ii) of the AYUSH Rules, 2024 are in contravention of the para 4 of the Presidential Order, 1974 and Section 3(2) of the 1983 Act. Accordingly, the fifth issue is answered. Issue No.6:
75. Now we advert to the sixth issue, namely whether Rule VIII is in contravention of the Rules I and VI of the 2021 Rules. Rule I, which has not been amended by G.O.Ms.No.148, Health, Medical and Family Welfare (C1) Department, dated 28.10.2024, provides for eligibility criteria of candidates, whereas Rule VI prescribes the eligibility criteria for inservice candidates. Rules I and VI of the 2021 Rules are quoted below for the facility of reference:88
"I. ELIGIBILITY CRITERIA:
i. Candidates should be citizens of India and should have completed MBBS course.
ii. Candidates have to qualify National Eligibility Cum Entrance Test (NEET) conducted by National Board of Examination.
iii. The duration of Postgraduate Degree Courses is 3 years.
iv. The duration of Postgraduate Diploma Courses is two years.
VI. ELIGIBILITY CRITERIA FOR IN-SERVICE CANDIDATES:
i. The regular service candidates who have put in 2 years or more of service in trial area / 3 years or more of service in rural area / 6 years or more of service in other areas are eligible for service quota reservation.
ii. The candidates should have qualified in the NEET-PG examination as per the cut-off marks prescribed for different categories to be eligible for service quota reservations.
iii. Temporary/contract/outsourcing candidates are not eligible for service quota reservations. iv. It is further clarified that in-service candidate means a candidate who has put in :
a. two years of continuous regular tribal service:
i. Tribal service means service in tribal institutions recognized by the Government of Telangana and Andhra Pradesh.89
b. three years of continuous regular rural service:
i. Rural service means 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 hospitalization wards situated in Taluks and Leprosy Training Centre at Pogiri (G.O.Ms.No.31, HM&FW (B2) Department, dated 11.2.1997).
c. Six years of continuous regular service: i. Continuous regular service means regular services in the State of Telangana and Andhra Pradesh in the following services:
1. Directorate of Medical Education
2. Directorate of Public Health & Family Welfare
3. Vaidya Vidhana Parishad
4. Insurance Medical Services
5. Singareni Collieries
6. Any other service notified by Government of Telangana.
v. The candidates should serve in a Government Institutions as per the orders of State Government after completion of the course for a period of 10 years.
vi. The candidate should have minimum left over service of 8 years for admission into PG degree 90 and 7 years for PG Diploma courses to be eligible for grant of study leave as service candidate. The cut-off date for calculation of left-over service will be notified by the University.
vii. All persons seeking admission as in-service candidates shall submit applications online with details of service rendered by them in prescribed proforma, along with other certificates. The certificates have to be uploaded online. viii. Candidates shall submit eligibility service certificate issued only by the concerned Director of Medical Education, Director of Public Health & Family Welfare, the Director Insurance Medical Services, the Commissioner Vaidya Vidhana Parishad and other competent authority as notified by the Government, in the prescribed format appended to application at the time of online applications. Applications of the candidates who have not submitted the certificate from the respective Heads of the Department at the time of counselling or selection shall not be considered.
ix. Grant of Study leave to in-service candidates selected for PG degree under service quota course shall be restricted to 3 years.
x. If in-service candidate is selected under Service Quota for PG diploma course; the candidate will be given study leave for a period of 2 years. xi. The candidates selected to prosecute postgraduate courses shall be sanctioned study leave for not more than one course i.e., either 91 postgraduate degree or postgraduate diploma during his service.
xii. In-service candidate shall join the course on or before the commencement of the course after getting relieved from the concerned Head of the Institution. The Heads of the Medical Institution shall relieve them if they apply for relief enclosing a copy of the selection and allotment order issued by the Chairman, admission committee."
76. Rule I of the 2021 Rules prescribes the eligibility criteria for the candidates seeking admission to postgraduate medical course and provides that the candidate should be citizen of India, and should have completed the MBBS course. Rule I of the 2021 Rules further provides that candidates have to quality National Eligibility-cum-Entrance Test conducted by the National Board of Examinations and duration of Postgraduate degree course is for three years, whereas duration of Postgraduate diploma course is two years. Rule VI of the 2021 Rules prescribes the eligibility criteria for in-service candidates. Rule VIII of the 2021 Rules deals with reservation in favour of the local candidates. By Rule VIII 92 of the 2021 Rules, reservation is provided in respect of local candidates, which has been defined therein.
77. It is well settled in law that while enacting a statute, the Legislature often endeavours to ensure that provisions of a statute do not contradict the provisions of the same statute or provisions of another statute. A seven-Judge Bench of the Supreme Court in In Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899 63 referred with approval its decision in Sultana Begum vs. Prem Chand Jain 64 and laid down the following principles with regard to the harmonious construction of law.
"(a) It is the duty of the Courts to avoid a head-on clash between two sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them;
(b) The provisions of one section of a statute cannot be used to defeat the other provisions unless the Court, in spite of its efforts, finds it impossible to effect reconciliation between them;
63 2023 SCC OnLine SC 1666 64 (1997) 1 SCC 373 93
(c) When there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of harmonious construction;
(d) The Courts have also to keep in mind that an interpretation which reduces one of the provisions to a "dead letter" or "unless lumber" is not harmonious construction; and
(e) To harmonise is not to destroy any statutory provision or to render it otiose."
78. In the backdrop of the aforesaid well settled legal principles with regard to the interpretation of statutory provisions, if Rules I and VI, and Rule VIII of the 2021 Rules are examined, it is evident that they are not in contravention with each other, instead, operate in different spheres. Rule VIII of the 2021 Rules does not completely bar inservice candidates for seeking admission to post graduate courses. There is no head-on clash between Rules I and VI, and Rule VIII of the 2021 Rules. The contention urged on behalf of the petitioners that Rule VIII is in conflict with Rules I and VI of the 2021 Rules, does not 94 deserve acceptance. Accordingly, the sixth issue is answered.
Issue No.7:
79. The issue, whether Explanation (a) and (b) to Rule VIII (ii) of the 2021 Rules and Explanation (a) and (b) to Rule 8 (ii) of the AYUSH Rules, 2024 are violative of Article 14, is concerned, suffice it to say that requirement contained in Explanation (a) is in consonance with para 4 of the Presidential Order, 1974. Therefore, the same cannot be said to be violative of Article 14.
80. Explanation (b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8 (ii) of the AYUSH Rules, 2024 provide that the candidate must have secured admission to Under Graduate course i.e., MBBS/BAMS/BHMS under local quota in the State of Telangana in order to be treated as a local candidate. In view of our conclusion that Explanation (b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8 (ii) of the AYUSH Rules, 2024 are violative of para 4 of the Presidential Order, 1974 and 95 Section 3(2) of the 1983 Act, it is not necessary for us to deal with contention whether Explanation (b) to Rule VIII
(ii) of the 2021 Rules and Explanation (b) to Rule 8 (ii) of the AYUSH Rules, 2024 are violative of Article 14 of the Constitution of India.
Issue No.8:
81. Now, we may deal with the eighth issue, namely whether the Rules had been changed midway after commencement of process of admission by amending the 2021 Rules vide G.O.Ms.No.148, dated 28.10.2024. The National Board of Examinations in Medical Sciences issued a notification for admission to postgraduate courses NEET PG 2024 on 16.04.2024. The examination was conducted on 11.08.2024 and the results were declared on 23.08.2024. The Rules of examination have not been amended. The 2021 Rules which provide for admission to post graduate courses were amended vide Notification namely G.O.Ms.No.148, dated 28.10.2024. Thereafter, a notification for admission was issued on 30.10.2024 by the University, inviting online applications for admission to 96 Post Graduate course. Therefore, the contention that the Rules of the game had been changed in the midst of process of admission is misconceived. It is pertinent to mention herein that similar view was taken by a Division Bench of this Court vide common order dated 11.09.2023 passed in W.P.No.18047 of 2023 and batch. It is also noteworthy that the aforesaid common order has attained finality as the Special Leave Petition preferred against the aforesaid common order, namely S.L.P. (C) Nos.21397- 21407 of 2023 have been dismissed by the Supreme Court on 05.03.2024. Accordingly, the eighth issue is answered in the negative by stating that the Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021 have not been amended after commencement of process of admission.
Issue No.9:
82. The last issue is whether Rule VIII of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024 are required to be struck down in its entirety. For the facility of immediate 97 reference, Rule VIII of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024 are extracted hereunder:
Rule VIII of the 2021 Rules:
"(i) A candidate to be eligible for admission into P.G. Medical courses under these rules should be an Indian National/Person of Indian Origin/Overseas Citizen of India Card Holder and be a Local candidate.
(ii) 'Local candidate' means a candidate who has studied in the educational institutions in the State of Telangana for a period of not less than four (04) consecutive years ending with the academic year in which he appeared or as the case may be, first appeared in the relevant qualifying examination subject to:
Explanation (a): A candidate who is regarded as a Local Candidate for the purpose of admission to Undergraduate (MBBS) in the State of Telangana, but has studied in a State-wide Institutions outside the Stat of Telangana, shall also be regarded as a Local Candidate.
Explanation (b): A candidate, who has secured admission to the relevant Undergraduate Course (MBBS) under Non-Local Quota in the State of Telangana, shall not be regarded as a Local Candidate."
Rule 8 of the AYUSH Rules, 2024:
"8. CRITERIA FOR ELIGIBILITY AS LOCAL CANDIDATE:98
(i) A candidate to be eligible for admission into P.G.AYUSH Courses under these rules should be an Indian National/Person of Indian Origin/Overseas Citizen of India Card Holder and be a Local candidate.
(ii) 'Local candidate' means a candidate who has studied in the educational institutions in the State of Telangana for a period of not less than four (04) consecutive years ending with the academic year in which he appeared or as the case may be, first appeared in the relevant qualifying examination, subject to:
Explanation (a): A candidate who is regarded as a Local Candidate for the purpose of admission to Undergraduate (UG AYUSH) course in the State of Telangana, but has studied in a State wide Institutions outside the State of Telangana, shall also be regarded as a Local Candidate.
Explanation (b): A candidate who has secured admission to the Undergraduate (UG AYUSH) course under Non-Local Quota in the State of Telangana, shall not be regarded as a Local Candidate."
83. A careful scrutiny of Rule VIII of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024 reveal that a candidate in order to be eligible for admission to postgraduate course should be (i) Indian national (ii) person of Indian Origin/ Overseas Citizen of India cardholder (iii) A local candidate.
Rule VIII (ii) of the 2021 Rules and Rule 8 (ii) of the AYUSH 99 Rules, 2024 define 'local candidate' to mean a candidate who has studied in educational institution in the State of Telangana for a period of four consecutive years ending with the academic year in which he appeared as the case may be first appeared in relevant qualifying examination. Thus, Rule VIII (ii) of the 2021 Rules and Rule 8 (ii) of the AYUSH Rules, 2024 treat all the candidates to be local candidates who have passed the MBBS/BAMS/BHMS under graduate course from the State of Telangana. Explanation (a) provides that a candidate who has studied MBBS/BAMS/BHMS under graduate course in a state- wide institution outside the State of Telangana shall also be treated as local candidate.
84. Thus, Rule VIII (i) and Explanation (a) to Rule VIII (ii) of the 2021 Rules and Rule 8 (i) and Explanation (a) to Rule 8 (ii) of the AYUSH Rules, 2024 do not suffer from any infirmity. However, Explanation (b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8 (ii) of the AYUSH Rules, 2024 mandate that if a candidate has taken admission to MBBS course under non-local category in the 100 State of Telangana, he/she shall not be treated as local candidate. Thus, Explanation (b) to Rule VIII (ii) of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024 mandate that in order to be a local candidate, the candidate must have been admitted to MBBS/BAMS/BHMS under graduate course under the local quota. Only Explanation
(b) to Rule VIII (ii) of the 2021 Rules and Explanation (b) to Rule 8 (ii) of the AYUSH Rules, 2024 are in contravention of the para 4 of the Presidential Order, 1974, and Section 3 (2) of 1983 Act. Therefore, Rule VIII of the 2021 Rules and Rule 8 of the AYUSH Rules, 2024 in its entirety are not required to be struck down. Accordingly, the ninth issue is answered.
(I) COMMON ORDER DATED 11.09.2023 IN W.P.No.18047 OF 2023 AND BATCH:
85. In W.P.No.18047 of 2023 and batch, a Division Bench of this Court dealt with the challenge made by the petitioners therein to the validity of Rules (3)(II)(d), (e), (h) and Rule (3)(III)(a) of the Telangana Medical & Dental 101 Colleges Admission (Admission into MBBS & BDS Courses) Rules, 2017, which were substituted vide G.O.Ms.No.72, dated 03.07.2023. Paragraphs 30 and 31 of the aforesaid common order are extracted below for the facility of reference:
"30. Rule (3)(III) of the 2017 Rules deals with Rules of reservation for admission. Rule (3)(III)(1) reads as under:
Rule (3)(III) : Rules of Reservation for Admission (AREA) Seats shall be reserved for the following categories in admissions to professional courses (1) Region-wise reservation of seats:
(a) admission to 85% of the 'Competent Authority Seats' in each course shall be reserved for the local candidates and the remaining 15% of the 'Competent Authority seats shall be unreserved seats as specified in the Andhra Pradesh Educational Institutions (Regulations and Admissions) Order, 1974 subsequently amended.
(b) In respect of State side institutions, admission into 85% of seats in each course shall be reserved for the candidates belonging to three local areas in the State specified in this sub rule namely, Andhra University Area (Andhra), Osmania University Area (Telangana) and Sri Venkateswara University Area (Rayalaseema) in the ratio of 42:36:22 respectively and the balance of 15% seats shall be unreserved seats:
31. The 2017 Rules were amended by G.O.Ms.No.72, dated 03.07.2023, which reads as under:102
AMENDMENT In the said rules, in Rule 3,-
(1) In sub-rule-II,
(a) For clause (d) & (e), the following shall be substituted, namely, "d) 85% of seats (competent authority quota) are reserved for local candidates in non-state wide institutions and 15% seats of competent authority quota are treated as un-reserved seats in colleges established prior to 2nd June, 2014".
"e) 15% of competent authority quota seats shall be unreserved in each college and reservation shall be maintained as far as possible for un-reserved seats on total seats available in colleges established prior to 2nd June, 2014".
(a) After existing clause (g), the following new clause shall be added namely:-
"h) In colleges established after 2nd June, 2014, 100% of seats under Competent Authority Quota are reserved for local candidates and all applicable reservations shall be implemented".
Rule 3(III)(a) "(a) admission to 85% of the "Competent Authority Seats" in each course shall be reserved for the local candidates and the remaining 15% of the "Competent Authority Seats" shall be unreserved seats as specified in the Telangana Educational Institutions (Regulations and Admissions) Order, 1974 as amended from time to time, in the colleges established prior to 2nd June, 2014".103
86. By the aforesaid amendment, 85% of the competent authority quota seats were reserved for local candidates in non-state wide institutions and 15% seats of competent authority quota were treated as un-reserved seats in colleges established prior to 02.06.2014. Similarly, 15% of competent authority quota seats are treated as unreserved in each college established prior to 02.06.2014.
87. The Division Bench of this Court in the aforesaid decision framed the following issues:
(i) Whether the State Legislature is competent to amend the 2017 Rules?
(ii) Whether impugned amendment in the 2017 Rules is in violation of the Presidential Order, 1974 and therefore, void?
(iii) Whether impugned amendment in the 2017 Rules is repugnant to Article 371D of the Constitution of India and Section 95 of the Andhra Pradesh Reorganisation Act, 2014?
(iv) Whether the petitioners had a legitimate expectation under Section 95 of the Andhra Pradesh Reorganization Act, 2014 which had been violated by amendment of the 2017 Rules, on 03.07.2023?104
(v) Whether rules of the game have been changed midway by way of amending the 2017 Rules, on 03.07.2023? and
(vi) Whether the reservation to the extent of 100% in favour of local candidates of the State of Telangana can be provided in respect of 85% of the competent authority quota seats in educational institutions set up after 02.06.2014 i.e., formation of State, by way of amendment in the 2017 Rules, and if yes, whether the same is permissible?
88. The Division Bench of this Court, vide common order dated 11.09.2023, inter alia, held that 85% of the competent authority quota seats alone have been reserved for local candidates for the State of Telangana in respect of institutions set up after formation of the State i.e., 02.06.2014 and upheld the validity of the amendment to the Telangana Medical & Dental Colleges Admission (Admission into MBBS & BDS Courses) Rules, 2017. In the aforesaid context, it was held by the Division Bench of this Court that the impugned amendment in the said aforesaid Rules is not in violation of the Presidential Order, 1974. It was further held that the amendment to the 105 aforesaid Rules is not repugnant to Article 371D of the Constitution of India and Section 95 of the Reorganisation Act.
89. From perusal of the aforesaid order, it is evident that the Division Bench of this Court did not deal with the issue whether in view of the mandate contained in Section 95 of the Reorganisation Act, Article 371D of the Constitution of India and the Presidential Order, 1974, made thereunder ceases to apply to the State of Telangana. The contention of the learned Advocate General that the issues urged by Mr. G.Vidya Sagar, learned Senior Counsel for the petitioner in W.P.No.31854 of 2024 have been dealt with by the Division Bench of this Court in W.P.No.18047 of 2023 and batch, does not deserve acceptance. (J) CONCLUSION:
90. In view of the preceding analysis, Explanation (b) to Rule VIII (ii) of Telangana Medical Colleges (Admission into Post Graduate Medical Courses) Rules, 2021 as amended by G.O.Ms.No.148, dated 28.10.2024, and Explanation (b) 106 to Rule 8 (ii) of the Telangana Admission into Post Graduate (AYUSH) Courses Rules, 2024 issued vide G.O.Ms.No.149, dated 28.10.2024, are struck down. Such petitioners who have completed MBBS/BAMS/BHMS course from the State of Telangana or have completed MBBS/BAMS/BHMS from 'local area' as defined in the Presidential Order, 1974 are held entitled to participate in the counselling for admission to post graduate courses in the State of Telangana in respect of seats for local candidates for the Academic Year 2024-25.
91. In the result, writ petitions are accordingly disposed of. However, there shall be no order as to costs.
Miscellaneous applications pending, if any, shall stand closed.
______________________________________ ALOK ARADHE, CJ ______________________________________ J.SREENIVAS RAO, J 17.12.2024 Note: LR copy be marked.
(By order) Pln/vs/gbs