Andhra HC (Pre-Telangana)
Registrar, Ntr University Of Health ... vs Dr. G. Babu Rajendra Prasad And Another on 29 March, 2000
Equivalent citations: 2000(3)ALD209, 2000(2)ALT716, AIR 2000 ANDHRA PRADESH 308, 2000 A I H C 3165, (2000) 4 SERVLR 677, (2001) 1 SCT 1065, (2000) 3 ANDHLD 209, (2000) 4 ESC 2350
Author: Goda Raghuram
Bench: Goda Raghuram
ORDER
1. These appeals are against an order directing the consideration of the petitioner for admission to Post-graduate Medical courses against the reserved seat for Scheduled Caste in 15% quota meant for non-locals in terms of Regulation 3 of the Regulations for admission to "Postgraduate Medical Courses" and if any person is selected against the said reserved seat, the same shall be cancelled and would be made available to such persons entitled to such admission.
2. The Division Bench noticed the conflict in the decision in P. Chinnayya v. Nitesh Narayan, (DB). Decision arose out of the judgment of learned single Judge in Nitesh Narayan v. University of Health Sciences and another, , and an earlier Division Bench judgment of this Court in Registrar, University of Health Sciences v. Md. Ishak, 1990 (1) An. WR 220 (DB). The pristine question, referred to the Full Bench is:
Whether the reservations in terms of Article 15(4) of the Constitution of India in favour of Scheduled Castes, Scheduled Tribes and Backward Classes could be provided even in respect of 15% of the unreserved the seats under the Presidential Order, 1974?
3. The petitioner is a Scheduled Caste candidate from Hyderabad City and studied MBBS course from 1988-1995 in Medical College Tirupati. Petitioner took the entrance test as non-local candidate for admission to post-graduate course, and was placed on merit at No.422. Eight seats in post-graduate course and 10 seats in Medical Diploma in clinical groups under 85% local quota for Scheduled Castes, Scheduled Tribes, and Backward Classes etc., was shown to be reserved in the prospectus issued by the University of Health Sciences.
4. In the State of Andhra Pradesh, admissions are made subject to rules, regulations, provisions of enactments, and restrictive instructions issued subject to and conforming to regulations contained in Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974 (hereinafter referred to as Presidential Order). It was issued under Article 371-D of the Constitution. The Presidential Order would prevail over all other laws, regulations, rules etc., for admission.
5. Petitioner claimed he is number one in merit amongst the non-local Scheduled Caste candidates in 15% unreserved seats. All reservations in the block of hundred was provided amongst 85% local candidates only. This mechanism or process of reservation is contrary to Articles 14 and 15 of the Constitution. Providing no reservation amongst the 15% non-local candidates is contrary to the Constitution. The non-observation of policy of reservation in 15% unreserved block of seats in pursuance to Para 4(G) of the prospectus and Regulation. No.4(G) of the regulation is arbitrary and illegal. Reliance was placed on the decision of the Division Bench dated 17-7-1998 in WA No.1547 of 1997 and WP No.430 of 1998 wherein it was observed that the respondents are under obligation to make reservation for Scheduled Castes, Scheduled Tribes, and Backward Classes even in 15% unreserved seats.
6. University demurred the averments. Admissions were made in conformity with rules, regulations and instructions issued by the State from time to time. Postgraduate Medical Courses Rules for Osmania, Kakatiya Universities or other Medical Colleges for 1997-98 in Annexure-III provides for reservations both in clinical and non-clinical subjects. In no subjects there are more than two seats; consequently there cannot be any reservation.
7. There are no reservations in 15% unreserved seats. Petitioner competed in entrance test as non-local candidate. There are only two seats for non-locals. Both are unreserved seats. Both the seats were filled in the first counselling while the turn of the petitioner came during the second counselling when no seat was available for the non-local category. The petitioner was offered the choice to select the course and the subject available according to his merit, which he declined.
By the last counselling all the seats were filled up and no seat was available in the PG Diploma courses. It was averred, in view of the Full Bench decision in Devarakonda Rajesh Babu v. Nizams Institute of Medical Sciences, , where it was observed that in view of clause (10) of Article 371-D of the Constitution the local area reservations would prevail over reservations for Scheduled Castes, Scheduled Tribes and Backward Classes.
8. The learned single Judge found that there should be reservation in terms of Regulation 3 of the Regulations for admission to "Post-graduate Medical Courses" even in 15% quota meant for non-locals.
9. The Presidential Order and Rules for admissions to Post-graduate courses provide that reservation shall be followed with respect to total number of seats available irrespective of the fact whether it pertains to 85% quota of locals or 15% of non-locals. Regulation 4(G) provides for eligibility criteria only and does not prohibit reservation. Regulation 3 governs the admission in Medical Colleges with respect to all seats and consequently it should be read into Regulation 4.
10. The statement of objects, primary purpose and reasons for enactment of Article 371-D is to (1) to promote the accelerated development of the backward areas of the State of Andhra Pradesh so as to secure balanced development of the State as a whole; (2) to provide equitable opportunities to different areas of the State in the matter of education.
11. It would be expedient to notice the Presidential Order to the relevant extent to answer the question.
(A) Para 2 "available seats" in relation to any course of study as number of seats provided in that course for admission at any time after excluding those reserved for candidates from outside the State. It defines "local area" in respect of any University or other Educational Institution as the local area specified in Para 3 of the order for the purpose of admission to such University or other Educational Institution.
(B) Para 3 carves out the local areas by reference to the earliest Universities operating in Andhra, Telangana and Rayalaseema areas of the State, Andhra University, Osmania University and Sri Venkateswara University and delineates the districts comprised in such local area.
(C) Para 4 sets out the qualifications for determining local candidates with reference to study in an educational institution or institutions for specified period or in the alternative with reference to residence in the local area.
(D) Para 5 enjoins that admission to 85% of the available seats in every course of study provided by Andhra, Nagarjuna, Osmania, Kakatiya or Sri Venkateswara Universities or by Educational Institution other than a State wide University or State-wide educational institution which is subject to 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. Sub-para (2) of this para states while determining number of seats to be reserved in favour of the local candidates under sub-para (1) any fraction of seats shall be counted as one. The proviso to the para ordains that there should be at least one unreserved seat.
(E) Para 8 enables the President by order to require the State to issue such directions as may be necessary or expedient for effectuating the provisions of the order to any University or other educational institution which shall comply with such directions.
(F) Para 9 reiterates the overriding effect set out in clause (10) of the parent article and mandates that the provisions of the order shall have the effect notwithstanding anything contained in any statute, ordinance, rules, regulations, or other orders whether made before or after the commencement ofthe Presidential Order irrespective of the admissions.
(G) Para 10 provides that nothing in the order shall affect the operation of any provisions made by the State Government or other Competent Authority whether before or after the commencement of the order in respect of reservations in the matter of admissions to any University or other educational institution in favour of women, socially and educationally backward class of citizens, the Schedule Castes and Scheduled Tribes, insofar as such provisions are not inconsistent with the order.
12. The State Government in order to enforce the Presidential Order issued GOP hereinafter referred to as the Government Order. The State Government directed that the procedure set out in Annexure III of the Government Order should be followed in the implementation of reservation in favour of local candidates provided under the Presidential Order in respect of non-Statewide Universities and non-State-wide educational institutions subject to its control. Procedure provided by Annexure III in verbatim runs thus :
Procedure for implementation of the reservation in favour of local candidates provided under the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 in respect of non-State-wide Universities and other non-State-wide educational stations (which are subject to the control of the State Government).
1. The number of "available seats" in the course of study shall first be computed by deducting from the total number of seats provided in that course, and the number of seats reserved for candidates from outside the State.
2. The number of seats reserved in favour of local candidates in relation to the local area in respect of the University or other educational institution concerned shall then be determined; this number shall be 85% of the available seats, any fraction of a seat being counted as one provided that there shall be at least one unreserved seat;
3. From amongst all eligible applicants, whether such applicants are local candidates or not. a provisional list of admission to fill all the available seats-shall be drawn up. This provisional list shall be prepared on the basis of the relative merit of all eligible applicants and the reservations in favour of Scheduled Castes, Scheduled Tribes. Backward Classes, Women etc., as provided under the relevant rules of admission. The candidates included in the provisional admission list shall be arranged in order of merit or where the rules of admission provide for their arrangement in any other order, in the order so provided;
4. The provisional admission list shall be scrutinised to ascertain the number of local candidates finding a place in that list. If the number of local candidates finding a place in the provisional admission list equals or exceeds the number of seats reserved in favour of local candidates, such provisional admission list shall be deemed to be the final admission list;
5. If, however, on the scrutiny referred to in Para 4, it is found that the number of local candidates finding a place in the said provisional admission list falls short of the number of seats reserved in favour of local candidates, the local candidates not included in the provisional admission list shall be arranged in order of merit in a separate list referred to as a Remainder List. Thereafter, the candidates other than local candidates (referred to as "non-local" candidates) finding a place in the provisional admission list shall be successively eliminated in reverse order from the bottom of such list and replaced by local candidates selected in order of merit from the Remainder List, so, however, that the provisions in the rules of" admission for reservation in favour of Scheduled Castes, Scheduled Tribes, Backward Classes, Women, etc., are observed to the extent that they arc not inconsistent with the provisions of the Andhra Pradesh Educational Institutions (Regulations of Admissions) Order, 1974. This process of successive elimination of non-local candidates and their replacement by local candidates shall be continued until the number of local candidates in the provisional admission list equals the number of seats reserved for such candidates. At that stage, the provisional admission list so modified shall be deemed to be the final admission list.
Illustrations "Illustration 'A ';-
The number of available seats in a course of study is 101, then the number of seats reserved in favour of local candidates will be 85% out of 101 with the fraction being counted as one. Thus, the number of seats reserved in favour of local candidates will be 86. If in the provisional admission list the number of local candidates equals or exceeds 86 such provisional admission list shall be deemed to be the final admission list.
Illustration 'B':-
If, the case referred to under Illustration A, the number of local candidates in the provisional admission list is 84, the 2 non-local candidates at the bottom of the provisional admission list shall be eliminated and replaced by 2 local candidates from the remainder list. The provisional list so modified shall be deemed to be the final admission list.
Illustration 'C':-
If in the case referred to under Illustration 'B' above one of the nonlocal candidates at the bottom of the provisional admission list who is proposed to be eliminated is a Scheduled Caste candidate whose replacement by non-Scheduled Caste candidate will violate the rule of reservation in favour of Scheduled Castes, such non-local Scheduled Caste candidate shall be replaced by the first available local Scheduled Caste candidates in the Remainder List.
Illustration 73':-
If in the case referred to under Illustration 'C' above, it is found that there is no local Scheduled Caste candidate available in the remainder list to replace the non-local Scheduled Caste candidate, then the non-local Scheduled Caste candidate in the provisional admission list shall be allowed to remain in such list and the non-local non-Scheduled Caste candidate immediately above him in such list shall be eliminated and replaced by a local candidate from the remainder list."
13. Processual mechanism for admission in accordance with Presidential Order and directions issued vide GOP No.646 and Annexure III emerges as under :
The provisional list for admission to fill all the available seats on the basis of merit of eligible candidates including candidates of reserved category, according to the reservation in favour of Scheduled Castes, Scheduled Tribes, Backward Classes, as provided for by the State would be prepared. Thereafter, procedure for 85% reservation for local candidates shall be followed. In the event of local candidates falling short of the number of seats according to the Presidential Order, the elimination from the list shall have to be done as set out in Para 5, duly ensuring that the quantum of reservation for Scheduled Castes, Scheduled Tribes, Backward Classes and women etc., is not subverted by following illustrations (C) and (D) set out in Annexure-III.
14. The State Government, with a view to stop commercialisation and charging of capitation fee, enacted the A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (hereinafter referred to as 'Act V of 1983'). It ordains that the admission to the professional colleges like Medical College should be made solely on the basis of ranking in the common entrance test conducted for such admission. Of course, the admission shall be made to such institutions subject to such rules as may be made by the State Government with respect to the reservation to the Scheduled Castes, Scheduled Tribes and Backward Classes and such other category of students as may be notified in this behalf and further subject to the Presidential Order. Act V of 1983 has overriding effect over the provisions of any other law for the time being in force. The State Government, under the Act V of 1983, framed A.P Medical College (Admission into Post-graduate Medical Courses) Rules, 1987 (hereinafter referred to as "PG Rules of 1987") and further amended in G.O.Ms.No.260, Health and Medical Welfare Department, dated 10-7-1997. Reservation to the extent of 15%, 6% and 25% of the total number of seats notified in each group for degree and diploma courses separately in favour of Scheduled Castes, Scheduled Tribes and Backward Classes respectively was provided subject to the admission to the extent of 85% of the seats reserved in favour of local candidates in relation to local area in terms of the Presidential Order. Further mechanism which is not relevant for the purpose of disposal of this case viz., local area, local candidate, method of filling up of the seats in the contingency where local candidates are not available, production of certificate in proof of local candidates, etc., was provided. In respect of 15% of the unreserved seats from the eligible nonlocal candidates for admission, guidelines were reiterated in G.O. No.646, dated 10-7-1979. Various clarifications were issued as set out in the earlier part of the judgment.
15. We are of the considered view that on an analysis of the provisions of the P.G Rules, 1997, specifically Rule 3, reservation for Scheduled Castes, Scheduled Tribes and Backward Classes provides the quantum of reservations for these categories and the contours applicable to these reservations. It is irresistibly inferable that quantum of reservation for the respective categories would operate irrespective of the total number of seats notified which, on contextual understanding of the legal regime under the Presidential Order, would mean "the available seats". In view of Paragraphs 5, 8, 9 and 10 of the Presidential Order and Sections 3, 12 and 15 of the Act V of 1983 read with Rule 3 of the PG Rules of 1997 the quantum of reservation for Scheduled Castes, Scheduled Tribes and Backward Classes is 15, 6 and 25% respectively applicable to the total number of seats available in the Post-graduate degree and diploma courses in various disciplines. Regulation 4 of 1997 Regulations envisages the eligible categories for admission to the remaining 15% of the unreserved seats. There is nothing from which it can be inferred expressly or by necessary implication positive exclusion of the scheme of the reservation for Scheduled Castes, Scheduled Tribes, etc., for the 15% unreserved seats in terms of the Presidential Order.
16. The respondents apparently interpret the Annexure II to the 1997 Regulations referable to Rule 2. The reservation has been applied to the total number of available seats in each of the Medical Colleges within the local area having been consolidated and quantum for Scheduled Castes, Scheduled Tribes, Backward Classes, etc., reservation has been fixed with respect to the total number of seats available. Yet, the reservation, though calculated tor total number of seats available, has been applied only to 85% of the seats reserved for local candidates. In our considered view the methodology worked out, as referred to above, cannot be termed as logical and having any reasonable nexus with the object provided by the Constitution to be achieved for giving benefit of encouragement to the reserved classes. Rather, we may hasten to add, it is a reservation within reservation and equals have been treated as unequals. Scheduled Castes, Scheduled Tribes, Backward Classes and other reserved classes arc the backward classes of the State but not of a particular local area. Reservation is for their upliftment. Restricting the reservation to the local candidates, though providing for the percentage of reservation on the total number of seats available, runs contrary to Article 14 of the Constitution and cannot be sustained on any legal reasoning. If we may hasten to add as referred in the earlier part of the judgment, on the analysis of the PG Rules, 1997, Act V of 1983, Presidential Order and G.O. No.646 it can be reasonably inferred that the respondent is obligated to make a provisional list for admissions and final list of admissions in conformity with the procedure set out in Annexure III to G.O. No.646 duly incorporating the reservations in favour of Scheduled Castes, Scheduled Tribes and Backward Classes.
17. We are further of the considered view that from a reading of Rule 3(2) and Regulation 3(2) of 1997 Regulations, PG Rules, 1997, Act V of 1983 whereby reservation was ordained to the extent of 15% of the seats in clinical subjects i.e., medicine, surgery, obstetrics and gynaecology group and 30% of the seats in non-clinical subjects in each group of degree and diploma courses separately for in-service candidates in each category under a service quota. These reservations also have to be incorporated while drawing up the provisional and final list for admission to post-graduate degree and diploma courses in accordance with the G.O. No.646. Thus, in totality of the circumstances, it would be consistent with the rule of interpretation of pith and substance that the reservation of Scheduled Castes, Scheduled Tribes and Backward Classes should both be calculated as well as applied to all available seats while in no manner subverting the overriding mandate of the Presidential Order warranting reservation of 85% of the available scats in favour of the local candidates in a non-State-wide University or Educational Institution.
18. As a natural corollary and consequence, if the number of available seats in a particular discipline and having regard to the obligation of the reservation of the candidates for local area is less in a given situation, no reservation for Scheduled Castes, Scheduled Tribes and Backward Classes, etc., is possible in respect of the 15% of unreserved seats (in the Presidential Order's sense). The non-accommodation of such class of reserved candidates would not be the consequences of any overt illegality, non-conformity with the reservation policy of the State or discrimination on the part of the University but a consequence of factual circumstances obtaining such a course or discipline.
19. In view of the observations made, the reservation provided for Scheduled Castes, Scheduled Tribes and Backward Classes and others by the State vide GO (P) No.646 on any annals of the interpretation providing reservation in a block of 100 cannot be restricted to be applied to 85% locals. Thus, the deprived class of non-locals, who are equally placed in the context of the object. and nexus for reservation, cannot be denied the reservation in 15% quota left over for non-locals. Proportionate reservation has to go in the 15% of unreserved scats too.
20. Reading of the Division Bench judgment in Mohd. Ishaq's case (supra), wherein the question posed and considered was in the context of the claim of the writ petitioner in the said writ petition and was to the effect that 1% reservation for the children of ex-servicemen i.e., out of 3 seats reserved for the said category, should have been provided separately in 85% reservation for local candidates under the Presidential Order as well as 15% of the unreserved seats. The Division Bench analysing the provisions of the Presidential Order and G.O. (P) No.646 found that no separate reservation to be worked out in respect of each of the reserved category of SCs., STs., or of ex-servicemen separately in 85% and 15% of the seats. The procedure provided in Annexure-III to G.O. (P) No.646 neither had any condition for further required nor it could be read into it the separate reservation in the two categories of locals and non-locals. Neither it was anywhere observed or found nor it was the question under consideration that either expressly or by implication it warrants an inference that the reservation for SCs., STs. and BCs., should be calculated for all the available seats, but is application be restricted to only 85% of the seat's reserved in favour of local candidates under the Presidential Order. In our considered view, the argument does not stand to any reason, principle or rule of interpretation. Rather, if we may hasten to add, it runs contrary to the very object of reservation for the above class of people.
21. In Nitesh Narayan's case (supra), this Court was considering the A.P. Professional Educational Institutions (Regulation of Admissions into Undergraduate Professional Courses through Common Entrance Test) Rules, 1993, hereinafter referred to as the Rules of 1993, and the question under consideration was whether the reservation for SCs., STs., and BCs., is applicable only to 85% seats reserved for local candidates under the Presidential Order or also to the olher 15% available seats left unreserved. The learned single Judge found that the reservation for SCs., STs., and BCs., is applicable to all the available seats irrespective of it being 85% or 15%. The learned single Judge rejected the submission of the learned Advocate General that the rule does not contemplate reservation in 15% unreserved seats for reservation to SCs., STs., and BCs. The State has provided reservation on hundred per cent basis, which has been complied with, by calculating the reservation of hundred per cent i.e., 85% local and 15% non-local, but the numbers of seats failing in the reservation category have been put in the block of local candidates alone. The learned single Judge found that this methodology of reservation is impermissible as it runs contrary to the law laid down by the Hon'ble Supreme Court that the reservation would not exceed 50% ceiling inasmuch as fixing the number of seats for reservation in 100% and reslricting it lo 85% seats reserved for local as an independent compartment required by the Presidential Order exceeds 50% ceiling. Thus, the observation of the learned single Judge that restricting the reservation calculating at 100% to 85% is illegal. The observations are in conformity with reason.
22. The view taken by the learned single Judge in Nitesh Narayan's case (supra), was affirmed by the Division Bench of this Court in wherein it was observed that the reservation for SCs., STs., and BCs. and olher reserved categories shall have to be applied both in respect of 85% reserved or local candidates under the Presidential Order and also 15% of non-local unreserved seats. We have nothing more to add and we affirm the law lay down by the Division Bench in this case.
23. In view of the observations made above and the provisions analysed on the touch-stone of the principle of interpretation in pith and substance and the object to be attained by the Constitution by providing for reservation as well as the State policy issued as well as the object of issuance of the Presidential Order making 85% reservation for locals, we are of the considered view:
1. "That on a true and fair construction, the Presidential Order, instructions and guidelines issued vide GO (P) No.646, dated 10-7-1979, the A.P Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (A.P. Act 5 of 1983), Rules for Admission to Post-Graduate-
Medical Courses in the State of A.P, (1997 PC, Rules) and P.G Regulations made by the University of Health Sciences, provide for reservation for SCs., STs., and BCs., Women, in-service Doctors and any other reservation, has to be made by the University in accordance with the instructions issued by the State in G.O. (F) No.646, dated 10-7-1979.
2. Provisional and final admission lists have to be drawn in accordance with the procedure and mechanism set out in Annexure III to G.O. (P) No.646, dated 10-7-1979.
3. University is bound to conform and follow the instructions and procedure provided by the State in conformity with Part 8 of the Presidential Order as the provision having overriding effect over any of the provision of the Constitution or other provisions of the law for the time being in force.
4. Annexure III to G.O. (P) No.646 incorporates the procedure for providing reservation for SCs., STs., and BCs. It envisages the mechanism for drawing of provisional and final admission lists and the methodology for elimination of candidates in the provisional list in the contingencies envisaged therein. The elimination process provided ensures adequate safeguards for not subverting the reservation in favour of SCs., STs., and BCs.
5. The University is required to follow the procedure set out in Annexure III to G.O. (P) No.646 while considering non-State-wide University or non-State-wide educational institution.
6. In view of P.G. Rules of 1997 and the P.G. Regulations framed by the University, the available seats would be calculated separately for PG degree and diploma courses, but admission list, whether provisional or final, shall be drawn in accordance with G.O. (P) No.646.
7. While following the procedure in conformity with the procedure provided if the candidates belonging to reserved category cannot be accommodated on account of limited number of seats available, it cannot be held that reservation has not been followed. May be, in such circumstances, reservation may not be workable as it has become axiomatic that where the number of seats, like being one, the reservation is not workable. In pari materiu with the said reason, if the reservation is not workable in view of the specific limited circumstance in a given case, it cannot be held that the principle of reservation or any provisions of the Constitution has been violated.
8. The procedure provided by G.O. (P) No.646, dated 10-7-1979 would prevail and be binding over any other procedure evolved by the University by reference to any part under its parent statute or Para 8 of the Presidential Order.
9. Calculating the reservation for SCs., STs., and BCs., for all available scats but applying it only to 85% reserved for local candidates, apart from being contrary to the Presidential Order is not in conformity with either G.O. (P) No.646 or Rule 3 of P.G. Rules of 1997 or Regulation 3 of P.G. Regulations made by the University or procedure warranted either expressly or impliedly either in Rule 4(g) of P.G. Rules of 1997 or Regulation 4(g) of the P.G. Regulations made by the University, As a necessary corollary, reservation would be calculated on the number of seats available and would be proportionately divided in the block of 85% and 15%. It cannot be restricted to 85%. If this process is not workable, it is for the administration of the University or the Academicians to evolve any other alternative methodology to achieve the object provided by the Constitution and the Presidential Order.
24. We are thankful to the learned senior Counsel Sri E. Manohar, Sri Nooty Ram Mohan Rao and Sri B. Adinarayana Rao for assisting the Court as amicus curie and who made elaborate submissions on this complicated and sensitive issue involved. We place on record the appreciation for valuable assistance rendered by the learned Counsel.
25. Since the order of the learned single Judge has been complied with, the law laid down would be operative with prospective effect. The admissions already made in conformity with the orders of the learned single Judge would be allowed to continue. The petitioner would be permitted to pursue the courses pursuant to the admission granted. The direction in the judgment of the learned single Judge stands modified to the extent referred above. The University is directed to pay Rs.20,000/- each to the learned Counsel who assisted the Court at the direction of the Court namely Sri E. Manohar, Sri Nooty Ram Mohan Rao and Sri B. Adinarayana Rao.
26. No other point was raised. The question referred is answered as above.
27. Writ appeals are accordingly disposed of as observed above with no order as to costs.