Andhra HC (Pre-Telangana)
Ntr University Of Health Science, ... vs Y. Raghavendra And Another on 23 February, 2000
Equivalent citations: 2000(2)ALD532
ORDER
N.Y. Hanumanthappa, J
1. Writ Appeal No.795 of 1999 and Batch is filed by the NRT University, Vijayawada and the Chairman, Selection Committee for Undergraduate courses (hereinafter referred to as the 'University'), challenging the orders in Writ Petition No.33456 of 1998 and Batch, dated 20-4-1999 directing the University to provide seats to eligible writ petitioners belonging to Backward Class Community for admission into MBBS course for the academic year 1998-99. The Writ Petition No.26194of 1999 and Batch are filed challenging the procedure adopted for admission into MBBS course by the University into various Medical Colleges in the State of Andhra Pradesh for the academic year 1999-2000. Since the common questions are involved Writ Petition No.26194 of 1999 and Batch were directed to be posted along with writ appeals.
2, The facts of the case that lead to the filing of the writ appeals and the writ petitions, briefly stated, are as follows :
The writ respondents are referred to as the writ petitioners in the writ petitions. The EAMCET-1998 Entrance Examination was held on 14-5-1998. The results were announced on 31-5-1998. The University vide notification dated 22-7-1998 called for selection/provisional admission scheduled from 8-8-1998 to 14-8-1998. In the meanwhile, Writ Petition No.15750 of 1998 and Batch were filed challenging the ranking allotted to the candidates in the entrance examination and this Court granted interim stay of selection on 4-8-1998 in the said Batch of writ petitions thereby the selections were not held on 8-8-1998 as scheduled in the notification dated 1-8-1998. By the judgment dated 17-8-1998 in Writ Petition No.15750 of 1998 and Batch, five questions were directed to be revalued and directed to revise the ranks. Thereafter, by notification dated 21-11-1998 selections for provisional admission into MBBS course were scheduled from 27-11-1998 to 3-12-1998. Challenging the said notification dated 21-11-1998 and the procedure adopted by the University in respect of Backward Classes and other reserved category candidates Writ Petition No.33456 of 1998 and Batch was filed and this Court granted interim stay of selection on 1-12-1998 and subsequently the same was vacated by this Court on 29-12-1998 and directed that all the admissions made will be subject to the result of the writ petitions. Thereafter thisCourt in Writ Petition No.33456 of 1998 and Batch dated 20-4-1999 finding fault with the procedure adopted by the University in making admissions into 1st year MBBS course allowed the Batch of writ petitions. The operative portion of the judgment rendered by the learned single Judge reads as follows :
"In the circumstances, I am of the opinion that the ends of justice would be met in this case if the State is directed to work out the details and find out how many of the students belonging to the non-reserved categories would have to be displaced if the admissions are to be made strictly in accordance with the principles laid down by the Supreme Court in Ritesh R. Shah's case, . After arriving at the total number of such students, consider the cases of each of the petitioners before this Court in this Batch of writ petitions as against the number indicated above, provide admission to such of the petitioners against the above mentioned number of seats in the Medical Colleges after obtaining appropriate permissions from the appropriate bodies for creating such number of additional seats, only for this academic year."
3. In pursuance of the directions of the learned single Judge dated 20-4-1999, according to the writ petitioners, 74 supernumerary seats were created vide G.O. Ms. No.509, dated 27-9-1999. Thereafter while admitting the writ appeals filed against the judgment of the learned single Judge in Writ Petition No.33456 of 1998 and Batch duly recording that 74 additional seats were created, granted interim stay of the order of the learned single Judge.
4. While so, the University while making admission into 1st year MBBS course for the academic year 1999-2000, adopted the same procedure which was followed for the academic year 1998-1999 on the premise that the Division Bench granted interim stay of the order of the learned single Judge. The candidates belonging to Backward Class Community who were stated to be deprived of seats in view of the procedure adopted by the University have filed Writ Petition No.26194 of 1999 and Batch. Since the questions involved in the writ appeals and the writ petitions are one and the same they are heard together and are being disposed of by a common order.
5. In the writ petitions the University filed counter-affidavit stating, inter alia, that the petitioners who have taken seat as per their choice are not entitled to challenge admission having exercised their option and that as per Rule 6(6) of the Admission Rules stipulated in G.O. Ms. No. 184, dated 2-8-1993 the choice has to be given to the candidate concerned. It was further stated that the reservation of 85% seats and 15% of seats have to be made in such away the 85% of the seats in each college are filled with local candidates and the remaining 15% seats are filled with open candidates and further that the rule of reservation for SCs., ST and BC communities and other reserved categories specified in clause (3) of Rules 4 and 8 of G.O. Ms. No. 184, dated 20-3-1993 are maintained both in respect of local candidates (85%) and open candidates (15%), that the claim of any candidate belonging to a reserved category for a seat either in the OC category or the concerned BC category has to be considered keeping the above direction of this Court and that the admissions have been made keeping this in mind. The option forms were furnished to the candidates at the time of selection and those were part of record for the choice exercised by the candidates.
6. It was further stated that the candidates who appeared in the interviewbefore the Selection Committee were given an option of choosing the institution of his/ her choice and the same was considered keeping in view the directions of this Court with regard to the reservation of local and non-locals institution-wise. However, option has to be exercised as to whether the candidate wanted to take a scat as OC, or from the quota reserved for BCs. Acceptance of such choice will depend upon the individual's merit and the rank in the particular category or college. As the reservation of locals, SCs., STs., and BCs., have to be maintained institution wise also, the choice of the candidate has to be considered on the basis of his/her rank in the particular category in the particular college. It was also stated that in respect of BCs. Community candidates have an option with regard to the allotment and selection but such option has to be considered in accordance with the individual's ranks in the open category and not reserved category, in respect of each institution. It was stated that as per the guidelines issued by the Supreme Court in Ritesh Shah v. Dr. Y.L Yamul, , if after finding out the candidates from among reserved category, who would otherwise come in the merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever college the seats are available. In view of the fact that the percentage of the reservations has to be maintained institution wise, naturally the seats of open category and reserved category have to be filled up keeping in view the rank, the option and the correspondent total number OC candidates, and reserved candidates in each college who are already admitted.
7. In reply to the counter-affidavit the writ petitioners filed an affidavit stating thatthe candidates who appeared for the interview before the Selection Committee were not given option of choice of institution to his/her choice. The option with regard to the institution has already been obtained along with the admission form even before the merit list as contemplated under Rule 6(2) of the Rules have been prepared. At the time of interview before the Selection Committee another option form was obtained which require only option of the seat. There is no reference to the option of the seat at the time of selection or at the time of allotment of seat of a particular institution. As per the Rules and the directions of this Court, admission consists of selection at the University area level and allotment of the scat to each institution. Without specifying the allotment or selection, option form has been obtained. In fact that option form has to be treated as bio-data but not as option form, since there is ambiguity in the said option form. The petitioners state that the judgment of the Supreme Court in Ritesh Shah's case (supra) has not been applied before proceeding with selection and the allotment of the candidates. The Supreme Court categorically stated that a candidate who is entitled to be admitted on the basis of his own merit, then such admission should not be contend against the quota reserved for SC/S'f or any other reserved category. Since the admission is at University area level, calling for the option with reference to a particular institution is wholly unethical. The Supreme Court also categorically stated that if a candidate belonging to reserved category, who could be admitted on the basis of merit should be treated as open category candidate for the purpose of computing percentage of reservation, but he should be given option for admission in the college where the seat kept for reserved category and thereafter less meritorious reserved category candidates should be considered for admission into the college where reserved seats are available. However, contrary tothe said procedure, by inviting option form, the meritorious candidate belonging to reserved category is being treated as reserved category for the purpose of computing of percentage of reservation also which is wholly illegal and contrary to the Presidential Order and the notification issued by the Government in G.O. Ms. No.996, dated 11-11-1975. In calling for options with regard to particular individual institution itselfis contrary to the Presidential Order. Therefore the entire process of admissions has been done in an arbitrary manner. The petitioners further stale that the judgment of the Supreme Court is misinterpreted for the purpose of arriving at a percentage of reservation. The candidates belonging to reserved category who could be admitted on the basis of open merit cannot be considered or included to arrive at the percentage of reservation. While giving reply to the counter-affidavit the petitioners referred to a decision of the Supreme Court in Sabarmalv. State of Punjab, (1992) 2 SCC 745, wherein it is held that on the other hand the reserved category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. The petitioners further state that even for the purpose of maintaining the institution wise reservation, meritorious reserved candidates who are to be selected in the open category of local area wise or University area wise cannot be called upon to exercise the option to be considered the OC candidate or reserved category candidate.
8. The learned Advocate-General appearing for the University contends that the judgment of the learned single Judge under appeal is contrary to the law laid down by the Supreme Court in Ritesh R. Shah's case (supra), that the order under appeal is made without reference to the earlier Division Bench judgment of this Courtin Writ Appeal No. 1547 of 1997 and Batch, dated 17-7-1998, wherein it was held that the admissions to the 1 st year MBBS course shall be made institution wise; whereas the order under appeal directs the authorities to follow University region as the Unit for making such admissions, which is contrary to the Presidential Order, 1974 and that therefore the order under appeal is liable to be set aside. The stand taken by the University and the Government is that the Division Bench of this Court in Writ Appeal No. 1547 of 1997 and Batch contemplated institution wise allotment of seats as per the direction Nos.3 and 7 therein, that the University is justified in following the admissions institution wise, that there is no violation on the part of the University, that the provisions as enunciated by the Supreme Court in Ritesh Shah's case (supra) arc not applicable in the State of Andhra Pradesh, in view of the peculiar circumstances of the case, under Article 371 of the Constitution of India and the Presidential Order, 1974, the University justifies its action on the ground that option of the candidate has to be taken into consideration and the allotment is made on the basis of the option given by the candidates.
9. The learned Counsel for the writ petitioners on the other hand contends that the institution wise selections is not contemplated cither under the Presidential Order, 1974 as modified in G.O. P. No.646, dated 10-7-1979 or the admission rules framed in G.O. Ms. No.184, dated 20-8-1993 and therefore the action of the University is arbitrary and illegal. The writ petitioners' case is that while making admissions local area/University area is to be taken as a unit for the purpose of selection and the procedure prescribed in G.O. Ms. No.996, dated 11-11-1995 has to be followed wherein it was prescribed that open category seats should be filled at the first instance and thereafter the reserved category are to be filled up. Their furthercase is that the Admission Rules do not prescribe for obtaining option from a candidate to choose the candidature as an open category or reserved category for the purpose of candidate choice of institution. The option is only with regard to the institution in which he or she wishes to study. Therefore the option of the candidates is only for the purpose of allotment to the institution but not for selection as prescribed under Rule 7(6) of the Admission Rules. The selection is solely on the basis of area wise and not institution wise. The Admission Rules, the writ petitioners contend, do not prescribe for preparing institulion wise merit lists.
10. The request of the petitioners and the stand taken by the University has to be viewed in the light of some of the GOs., and the statutes which are concerned with selection and admission to the professional courses including admission to the first year MBBS course. For historical reasons in view of the powers conferred under Article 374-D of the Constitution of India, Presidential Order, 1974 was promulgated called 'the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974'. Some of the clauses of the said order, which are relevant for purpose of these cases, are extracted herein :
Paragraph 3 defines 'local area' as :
"(1) That part of the State comprising the districts of Srikakulam, Visakhapatnam, West Godavari, East Godavari, Krishna, Guntur and Prakasam shall be 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) That 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 purpose 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 Slate 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."
Paragraph 5 deals about Reservation in non-State-wide University and educational institutions :
"(1) Admission to eighty five per cent of the available seats in every course of study provided by the Andhra University, the Nagarjuna University, the Osmania University, the Kakatiya University or Sri Venkateswara University or by any educational institution (other than a State-wide University or a Statewide Educational Institution) which is subject to the control of the State Government shall be reserved in favour of the local candidates in relation to the local area in respect of such University or other educational institution.
(2) While determining under sub-paragraph (1) the number of seats to be reserved in favour of local candidatesany fraction of a seat shall be counted as one :
Provided that there shall be atleast one unreserved scat."
Paragraph 6 deals about reservation in Statewide Universities and State-wide Educational Institutions as follows :
(1) Admissions to eighty five per cent of the available seats in every course of study provided by a State-wide University or a State-wide Educational Institution shall be reserved in favour of local candidates and allocated among the local candidates in relation to the local areas specified in sub-paragraph (1), sub-paragraph (2) and sub-paragraph (3) of paragraph 3, in the ratio of 42:36:22 respectively. (vide G.O. Ms. No.816, GA (SPF-B), dated 26-11-1976 and GSR No.898 (E), dated 25-11-1976, Govt. of India) :
Provided that this sub-paragraph shall not apply in relation to any course of study in which the total number of available seats does no exceed three.
(2) While determining under sub-paragraph (1) the number of seats to be reserved in favour of the local candidates, any fraction of seat shall be counted as one reserved in favour of the local candidates, any fraction of seat shall be counted as one :
Provided that there shall be atleast one unreserved seat.
(3) While allocating under sub-paragraph (1) the reserved seats among the local candidates in relation to different local areas, fraction of a seat shall be adjusted by counting the greatest fraction as one and, if necessary, also the greater of the remaining fractions as another, and, where the fraction to be so counted cannot be selected by reason ofthe fractions being equal, the selection shall be by lot :
Provided that there shall be atleast one seat allocated for the local candidates in respect of each local area.
Paragraph 10 deals about the removal of doubts.
11. The Government in its G.O. Ms. No.996, Employment and Social Welfare (P) Department, dated 11-11-1975, reserved certain percentage of seats in various professional courses to the candidates belonging to Scheduled Caste (SC), Scheduled Tribe (ST) and Backward Class in the following manner :
SC ..
14% ST ..
4% BC ..
25% :
Group-A 7% Group-C 1% Group-B 10% Group-D 7%
12. The said G.O. was issued in supersession of the earlier G.O. Ms. No. 1793, Education, dated 23-9-1970, G.O. Ms. No.646, dated 10-7-1979 was issued by the Government of Andhra Pradesh, Education Department defining the local area and local candidates.
13. Exercising the powers under Section 3 read with Section 15 of the A.P. Educational Institution (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (Act 5 of 1983), the State of A.P. framed Rules known as A.P. Professional Educational Institutions (Regulation of Admission into Under-Graduate Professional Courses through Common Entrance Test) Rules, 1983. The said Rules are made applicable to all the professional educational institutions including Medical (Dental etc.). Rule 2, sub-rule (1) speaks about local area, which means territorial jurisdiction for identifying the localcandidate. Rule 2(1) deals with local candidates, which means the candidate in relation to the local area specified in Rule 8. Rule 3 deals with the method of admission to the first year undergraduate course in various professional educational institutions according to which admission shall be made in the order of merit on the basis of ranking assigned to the students in the common entrance test called "Engineering Agriculture and Medical Common Entrance Test (EAMCET)" conducted for the purpose. Rule 4 deals with the eligibility criteria for admission namely that the Rules of Admission prescribed herein shall govern admission into various courses in different professional educational institutions. Sub-rule (3) of Rule 4 deals with eligibility criteria for admission in respect of Medical courses which includes courses such as MBBS, BDS, BAMS, BHMS and BUMS. The candidates desirous of seeking admission into these courses shall have the qualifications prescribed under clauses (a), (b)(i) (ii) (iii) and clause (2) and (c), etc. As per Rule 5 there shall be a common entrance test which shall be conducted by the Convener appointed by the State Council, on such dates and at such centres as may be specified by the State Council in consultation with the Chairman of the Entrance Test Committee. Section 5(2)(a) deals with the issuance of advertisement by the Convener inviting applications. Section 2(b) says that the date of conduct ofEntrance Test as announced by the Entrance Test Committee shall not be revised without the prior approval by the Government. The details of courses the University offering and the subjects to be chosen for appearing the entrance test to the courses also to be indicated. Rule 6 speaks about the preparation of merit list and assigning ranking which reads as follows :
"The candidates who have secured qualifying marks in the Entrance Testand the candidates belonging to the Scheduled Caste and Scheduled Tribe communities to whom qualifying marks have not been prescribed, shall be assigned the ranking in the order of merit on the basis of the aggregate marks obtained in all the three relevant subjects out of the four subjects namely, Mathematics, Physics, Chemistry and Biology in which appeared.
(1) The Common Entrance Test Committee shall prepare the following categories of merit lists separately for Engineering and Non-Engineering (Agriculture and Medical) Courses in the order of marks obtained by the candidates in the Common Entrance Test."
14. As per Rule 7(4), while preparing the merit list, the competent authority shall prepare two categories of merit lists namely, common merit list and category-wise merit list. The candidates who secured higher rank in the entrance test will be called for interview in order of merit for selection and allotment of courses. The candidates so selected shall be allotted the courses on the basis of ranking assigned to them in the entrance test. Rule 8 deals with rules of reservation for admission. Explanation to Rule 8(i) defines 'local area' which reads as follows :
"(a) The part of the State comprising the districts of Adilabad, Hyderabad (including twin cities), Ranga Reddy, Karimnagar, Khammam, Medak, Mahaboobnagar, Nalgonda, Nizamabad and Warangal shall be regarded as Osmania University Local Area (Telangana).
(b) The part of the State comprising the districts of Srikakulam, Vizianagaram, Visakhapatnam, East Godavari, West Godavari, Krishna, Guntur and Prakasam shall be regarded as Andhra University Local Area (Andhra).
(c) The part of the State comprising the districts of Ananthapur, Kurnool, Chittoor, Cuddapah and Nellore shall be regarded as the Sri Venkateswara University Local Area (Rayalaseema)."
15. Explanation to Rule 8(ii) deals with the 'local candidate'. As far as the definitions of 'local area' and 'local candidate' is concerned, there is no departure. These two were defined in the earlier GOs., cited supra.
16. As per Rule 8(2)(a), reservation of seats for SC/ST/BC Communities shall be earmarked in the following manner :
SC 15% ST 6%
17. It is also mentioned that the seats reserved for Scheduled Castes shall be made available to Scheduled Tribes and vice versa, if qualified candidates are not available in the category. If qualified candidates belonging to Scheduled Castes and Scheduled Tribe communities are not available, the left over seats reserved for them shall be treated as unreserved seats and shall be filled by the candidates of general pool. As per Rule 8(2)(b), 25% seats in each course in each institution shall be reserved for the candidates belonging to the Backward Classes and shall be allocated among the four groups of Backward Classes as shown below :
Group 'A' 7%;
Group 'B' 10% Group 'C' 1%;
Group 'D' 7%
18. If qualified candidates belong to Backward Class of a particular group are not available, the left over seats can be adjusted for the candidates of next group. If qualified candidates belong to Backward classes are not available to fill up the25% seats reserved for them, the left over seats shall be treated as unreserved and shall be filled up with candidates of general pool.
19. For the academic year 1998-99, the NTR University of Health Sciences, Vijayawada, made regulations for admission into the first year MBBS course. As per the said regulations, selection be made through counselling, dates of selections be intimated through press. The said selection shall apply to the Government Medical Colleges, Siddhartha Medical College, Private Unaided Medical Colleges and Private Unaided Minority Medical Colleges affiliated to NTR University of Health Sciences. As per Regulation III the rank shall be the basis for the selection into MBBS course subject to these Regulations. Regulation VII-A reads as follows :
"Reservation for Scheduled Castes and Scheduled Tribes :--Out of the seats available for admission by the University, 15% for SC and 6% for ST, shall be reserved.
1. In the event that if any seats reserved for ST are not filled up they will be thrown open to the candidates belonging to the Scheduled Castes and vice-versa.
2. In the event that if the candidates from the SC and ST are not available these seats shall be reallotted to the candidates under open category (on the basis of rank in the EAMCET-98).
3. Candidates of the Scheduled Caste and Scheduled Tribes belonging to the State of A.P. only which are specified in the list appended (latest list) to these Regulations alone shall be considered.
Rule 7-B deals with reservation for Backward Classes, which reads as follows :
"Out of the available seats for admission by University, 25% of the seats shall be reserved for Backward Class candidates, i.e., A-7%; B-10%; C-1% and D-7% as per the G.O. Ms. No. 1793, Education, dated 23-9-1970.
A list of Backward Classes in the State is appended to these Regulations. Candidates of these castes of the State of A.P., only which are listed in the appendix alone shall be considered under the respective categories."
20. Regulation 'G' deals with reservation for local candidates. Regulation G(3) deals with local area as defined in other GOs. Regulation 10 deals with the selection, according to which selection be made by the Selection Committee appointed by the Vice-Chancel lor, NTR University of Health Sciences.
21. Candidates shall submit the names of the colleges of their choice in the order of their preference in the option form provided along with the application for consideration of their admission to those colleges.
22. In the light of the above suggested and definite position with regard to admission into the first year MBBS course we have to see whether all was well with the selecting authorities in making selection into first year MBBS course for the year 1998-99. They admitted the candidates for first year course of MBBS for the year 1998-99 both eligible and entitled under different categories namely OC, Scheduled Caste and Scheduled Tribes and other reserved categories. It is also to be seen whether the allotment of seats is made local University, area wise or institution wise.
23. The grievance of the writ petitioners is that the respondents first invited the applications calling for the applicationssuggesting that the candidates to indicate the local area University wise. But the same was withdrawn and another notification was issued by inviting applications and further suggesting that the candidate shall indicate his option of institution for admission. As on the date of calling for applications, selection and admission, how merit list has to be prepared and seats to be allotted, the position is well defined both in the Presidential Orders and other GOs., referred to above and the law laid down by the Supreme Court in the case of Ritesh R. Shah v. State of Bihar (supra), under the similar circumstances the Hon'ble Supreme Court observed that while preparing merit list the candidates who sought initially admission under reserved category but in competition secured rank on merit, they shall be preferred for the selection under general category and the resultant seats shall be filled up by another reserved candidate. It is inevitable that a candidate at the bottom has to make way for the meritorious students from different reserved categories whose merit is more than the other candidates come under OC categories with lesser ranks. As far as allotment of seats is concerned interpreting the special order and other provisions the Supreme Court also held that while making such allotment local area or the University area shall be taken as the unit and not the institution.
24. The case of the respondent-University is that even if a reserved candidate secures a higher rank preference of college shall be within the reserved category. So also the institution. The respondent-University tried to draw the support from some of the pronouncements of the Supreme Court and also this Court namely : State of Bihar v. M. Neethi Chandra, , Nitesh Narayan v. University of Health Sciences, , and the Division Bench of this Court in Writ Appeal No.1547 of 1997 dated 17-7-1998.
25. In the case of Jagdish Saran v. Union of India, , the Supreme Court white disapproving the wholesale reservation and allotment institution wise, held as follows :
"A blanket ban which is the indirect result of a wholesale reservation is constitutional hearsy. There must be substantial social justice has raison d' entre for a high percentage of alumni reservation. If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when chosen the best, according to this rule of equal chance for equal marks.
Institution-wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to, until the sign post of "no admission for outsiders" is removed from other University and some fair percentage of seats in other Universities is left for open competition the Delhi students cannot be made martyrs of the constitution. Even so 'reservation' must be administered moderation, if it is to be constitutional."
26. The earlier view of the Supreme Court in the matter of allotment of sets in D.N. Chanchala etc. v. State of Mysore, , was that distribution of seats University-wise is not violative of Article 14 of the Constitution of India.
27. In the case of Mohan Bir Singh Chawla v. Punjab University, , wherein the Supreme Court held that college-wise preference is not permissible but University-wise preference is permissible provided it is relevant and reasonable.
28. In the case of Ritesh R. Shah v. Y.L. Yamul (supra), the Supreme Court held as follows :
"A student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they will be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the options of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as a open category candidate and not as a reserved category candidate."
29. In the light of the Rules extracted above and the law laid down by the Supreme Court in the above cited decisions, we have to examine the case of the writ petitioners. The grievance of the writ petitioners is as follows :
"..... However that procedure has not been followed for admission into the MBBS course for the academic year 1998-99. The Committee has insisted that the candidate should exercise his option as per the choice given along withthe application. The candidate also given another set of option form before entering into the counselling, which is filed in the material papers. Thereby giving his preference to the seat under two captions :
(A) OC/Reserved category (B) Local/Unreserved category.
Those under Category-I, the candidates should choose seat under open competition or under reserved category in the choice of colleges which he has already submitted along with application form. Similarly he was also required to choose local or unreserved category with reference to the choice of institution already exercised. Thus at the time of appearing before the Selection Committee itself, the choice of the candidate has been restricted to the institution and he was also forced to exercise option to open category or reserved with particular institution only in the event the seat is not available in bom open category or reserved category, his candidature was considered with regard to the second option institution. The said procedure devised by the University is wholly illegal and contrary to the statutory Rules framed by the Government."
30. It is further averred in the affidavit that the BC meritorious students seeking selection for admission to the college of their choice on the basis of their rank have not only been deprived of the seat but the candidates next to the merit candidates have been deprived of the seat on the ground that the BC seat has been already filled up by higher rank candidate. The relevant portion is extracted herein :
"It is submitted that on the ground that the BC candidate has claimed BC seat inthe institution which he had already opted to at the time of submitting the application form, he has been treated as BC category candidate but the BC candidate next in the merit list has been deprived of the seat on the ground that BC seat has already been filled up by higher ranking candidate.
It is submitted that in the Osmania University Area there are 500 seats in the Government Colleges i.e., Osmania Medical College, Gandhi Medical College and Kakatiya Medical College. The open category candidates upto Rank No.731 have been provided seats in the seats earmarked for open category. However BC 'B' candidates at Rank Nos.260, 293, 296, 300, 303, 312, 324, 354, 367, 372, 380, 381, 383, 391, 410, 423, 447, 471, 481, 493, 500, 503, 511, 526, 552, 567, 592, 629 and 649. Similarly BC 'A' candidates of Rank Nos.362, 416 and candidates of BC 'D' Rank Nos.278, 452, 472, 500, 553, 558 and 583 have been treated as BC category candidates although they have been treated as BC category candidates although they have secured higher ranks than the last open category candidate i.e., Rank No.731 in the Osmania University local areas....."
31. On the other hand, the stand taken by the respondents in their counter is as follows :
"The candidates who appeared in the interview before the Selection Committee were given option of choosing the institution of his/her choice. But the same was considered keeping in view the other direction of this Hon'bte Court with regard to the reservation of local and non-locals institution-wise. It is submitted that there was no force, on any candidate, in the exercise of the option by him/her. However option has to be exercised as to whether thecandidate wanted to take a seat as OC or from the quota reserved for BCs. Acceptance of such choice will depend upon the individuals merit and the rank in the particular category or college. As the reservation of locals, SCs., STs. and BCs., have to be maintained institution-wise also, the choice of the candidate has to be considered on the basis of his/her rank in the particular category In the particular college.....
This annexure would indicate the rank of the individual, the college which the candidate would have obtained as OC candidate, the option exercised by the candidate and the college in which the candidate was admitted. There is no illegality in the said admission. None of these persons who are admitted has any grievance. Admissions have been made as per their rank and as per their option, subject to the restrictions placed in the Division Bench judgment of this Hon'ble Court about maintaining the reservations institution-wise also. It is submitted that for the purpose of seeing that a meritorious candidate is admitted in particular college, the college has to be taken as a unit whether it is in OC category or in BC category. The petitioners are showing the entire area as one unit. This is not correct. While maintaining the reservations ratio in the local area as per the judgment of the Division Bench, the ratio in the institution also has to be maintained. For this purpose the entire University area cannot be taken into account. There is nothing illegal in the admissions made and the directions of this Hon'ble Court in the said Division Bench judgment have been followed. Insofar as State of A.P. is concerned there is applying the special constitutional provisions Article 371(D). While principles laid down by the Supreme Court in Ritesh R Shah's case,the Division Bench of this Hon'ble Court had given the directions about the maintenace of the ratio of reservations of all categories of candidates in local area as well as institution-wise."
32. The stand taken by the University is that if the contentions of the petitioners are accepted, it results in regional imbalance and that it is not possible to accommodate all the meritorious students to the college of their choice. Their further stand is that as there were State-wide Medical Colleges, the principles laid down in Ritesh R. Shah's case have no application to the case on hand as the parties herein are governed by the Presidential Order, 1974. Further such an approach as suggested by the petitioners will run contrary to the decision of the Division Bench of this Court rendered in Writ Appeal No.I731 of 1999 and Batch in the case of Seshi Kumar v. University of Health Sciences.
33. According to the learned Advocate-General., allotment on University-wise is not approved by the Supreme Court in the case of State of Bihar v. M. Neethi Chandra (supra). There is no illegality in allotting the students for admission to the college which they sought initially while submitting their applications giving their choice. Similar grounds were urged before the learned single Judge.
34. The learned single Judge while making reference to several GOs., and statutes applicable to the admissions including the decision relied upon by the learned Advocate-General, found that the principles laid down by the Supreme Court in Ritesh R. Shah's case (supra) with all force apply to the case of the writ petitioners for the reason that a student who is entitled to admission on the basis of merit though belonging to reserved category cannot be considered to be admitted against the seats reserved for reserved category. The learnedsingle Judge found that non following of the principles laid down in Ritesh R. Shah's case by the respondents has resulted in causing injustice to the petitioners. In other words, the non-admission of the students belonging to Backward Class though they are entitled to the allotment of seats against the open competition seats, but treating them as candidates belonging to Backward Class category, have deprived the other candidates belonging to the Backward Class community of their opportunity of securing seats earmarked for them. According to the learned single Judge, to call upon the students belonging to Backward Class community but have secured high merit to exercise their option whether they like to be considered against the seat earmarked for the open category or reserved category would restrict his right which is impermissible. Even the Division Bench of this Court on which much reliance was placed by the Advocate-General did not say that a candidate belonging to reserved category though qualifies for admission on merit to OC category but not entitled to seek admission on OC category. On the other hand that a candidate who is qualified for admission on merit in OC category, his admission shall be on the basis of the principles laid down by the Supreme Court in Ritesh R. Shah's case (supra). The learned single Judge found that there is no inconsistency between the law laid down by the Division Bench of this Court in Writ Appeal No. 1731 of 1999 and the law laid down by the Supreme Court in Ritesh R. Shah's case (supra). According to the learned single Judge, the principles laid down by the Supreme Court in Neethi Chandra's case (supra), on facts have no application to the case on hand because that was a case which it pertains to the allotment of students to various branches in post-graduate courses in the State of Bihar. Whereas in the case on hand the course of study is common for all the students. Even otherwise it is not possible to form an opinion from the principles laid down in Neethi Chandra'scase (supra), that the authorities stand is correct as there is no deviation in Neethi Chandra's case (supra), though best among the candidates belonging to the reserved candidates would have the option to choose either the institution or the branch of their studies in preference to meritorious students belonging to the same category. Likewise the reliance placed by the learned Advocate-General on the decision rendered by the learned single Judge of this Court in Writ Petition No.6290 of 1995 in D. Seshi Kumar's case (supra), has no application as that was a case where obtaining selection and admission to the students of postgraduate in dental medicine. Further there was a GO that how selection has to be made in case of post-graduate course in dental medicine which was not implemented. Satisfying that the procedure followed by the University in not considering the request of the meritorious BC students for admission to the college of their choice it indirectly deprived the other such meritorious BC candidates entitled to admission for first year MBBS course. The learned single Judge also took into consideration that during the pendency of the writ petition 74 students belonging to the BC community were admitted in view of creation of supernumerary seats by the concerned authorities.
35. In view of the peculiar circumstances involved in the cases, the learned single Judge observed as follows :
"The next question is what is the relief that can be granted to this Batch of cases ? The petitioners have not clearly demonstrated that the State by following the procedure it had adopted, denied each one of the petitioners herein a seat in the Medical Colleges. It all depends upon the rank assigned to each one of the petitioners. Some or all the petitioners might get a seat or might not get a seat ifonly the State had adopted the procedure stipulated in Ritesh R. Shah's case (supra). However, in a complex situation like this, where the information as to the number of seats available in each college and the ranks obtained by each of the students belonging to the various reserved categories, would not be available with each of the petitioners and therefore it becomes impossible to each of the petitioners to establish their right to secure a seat. On the other hand, the State is under an obligation to scrupulously follow the mandate of the law, these writ petitions are to be allowed as prayed for, but allowing these writ petitions as prayed for at this stage would result in wholesale unsettlement of the careers of students who have already started undergoing the training. If the entire admissions for the academic year 1998-99 are to be reorganised in accordance with the law declared by the Supreme Court in Ritesh R. Shah's case (supra), it goes without saying, that some of the students, who belong to the unreserved category, would perhaps be found to have been admitted though there are not sufficient number of seats for them in the open category. It is impossible at this stage to know who exactly would such unfortunate students be. Such a misery would befail them only by virtue of the misunderstanding of the law by the respondents. Such students are not before this Court, apart from the fact that they have already entered the colleges and have undergone the training for some period.
In the circumstances, I am of the opinion that the ends of justice would be met in this case if the State is directed to work out the details and find out how many of the students belonging to the non-reserved categories would have to be displaced if the admissions are to bemade strictly in accordance with the principles laid down by the Supreme Court in Ritesh R. Shah's case (supra). After arriving at the total number of such students, consider the cases of each of the petitioners before against the number indicated above, provide admission to such of the petitioners against the above-mentioned number of seats in the Medical Colleges after obtaining appropriate permissions from the appropriate bodies for creating such number of additional seats, only for this academic year."
36. In our view there is no merit in any one of the contentions raised by the learned Advocate-General. On the other hand the order of the learned single Judge on all points is a well-considered one and it does not call for any modification by this Court.
37. It is submitted that subsequently the University and other authorities concerned created supernumerary seats and all the 74 students belonging to the Backward Class community who were declared as meritorious were admitted to different colleges. Since supernumerary seats were created pursuant to the orders of this Court to accommodate both the students admitted under OC category and other students it may not be proper now to disturb the arrangement made earlier.
38. As regards the admission for the year 1999-2000, the grievance of the petitioners in the Writ Petition No.26194 of 1999 and Batch is almost the similar to the earlier writ petition for the year 1998-99. They contended that the same procedure asking the meritorious students belonging to the BC community to seek allotment of seats institution-wise is adopted and not local area wise, which according to them is quite incorrect. According to them if such a procedure is adhered the candidates belong to different categories, though secured higherrank, but still they have to go for an institution which the authorities directs which is contrary to Articles 14 and 15 of Constitution of India. The stand taken by the University authorities in these writ petitions is same as the one taken in the earlier writ petitions and in the writ appeals. Since it is held that the procedure followed by the authorities in making selections and admission for the first year MBBS course for the year 1998-99 in respect of meritorious students of reserved category as incorrect and illegal, the same holds good in the case of selection and admission for the first year MBBS course 1999-2000. In our view the petitioners herein are entitled for the relief which they have sought.
39. It is submitted that admissions have been already over and classes have been commenced. At this juncture if any direction is given to cancel the admissions in respect of those OC category students who were admitted on the basis of their merit but less than those BC, SC and ST candidates who secured higher ranks and thus entitled to be counted against open category by which process open category candidates with comparatively less merit, then great hardship would be caused to such students already admitted. In the guise of admissions already made the authorities may not escape from their liability to adhere to the rules promulgated and the law laid down. It is true that if admissions of some of the students are cancelled great hardship would be caused to them. Likewise the Court also has to see that by such incorrect admissions and non following the principles laid down by the Supreme Court in the Ritesh R. Shah's case (supra), the other candidates coming under different reserved categories, namely BC, SC and ST, who are entitled to seek admissions under open category on the basis of merit on the one hand they will be loosing their right and on the other hand such of those students coming under BC, SC and ST category at the bottom who would beentitled to claim for admissions to such of the seats became vacant due to meritorious student of the BC category entitled to be admitted under open category, will now be deprived. In other words, there is no use for the reserved category student to secure higher rank. In a situation like this, all that the Court can say is, if the authorities want to allow the students already admitted under open competition category allow them to prosecute their studies, at the same time comply with the orders of this Court made in earlier writ proceedings. The selection shall be on the basis of local area or University-wise. If increasing of intake is necessary, the authorities may make a request to the concerned authorities to increase the intake as they did earlier or replace the less meritorious open category candidates by admitting the meritorious Backward Class, Scheduled Caste and Scheduled Tribe students. Further, fix the meritorious BC, SC and ST category students strictly adhering to the principles laid down by the Supreme Court in the Ritesh R. Shah's case (supra) and the rules referred above, namely, accommodate meritorious students belonging to SC, ST and BCs. While so doing if the other students allotted in the OC category are to be deleted one cannot escape from the same. The petitioners are entitled by virtue of the ranking for admission under OC category to the college of their choice and they shall be admitted within two weeks from the date of this order. They are entitled for condonation of shortage of attendance. The resultant equal number of vacancies shall be filled up by drawing the candidates belonging to the Backward Class, Scheduled Caste and Scheduled Tribe communities who will be next eligible.
40. Accordingly, Writ Appeal No.795 of 1999 and Batch are dismissed and Writ Petition No.26194 of 1999 and Batch are allowed. No costs.