Andhra HC (Pre-Telangana)
B. Meenakshi vs Government Of Andhra Pradesh And Ors. on 26 December, 2001
Equivalent citations: 2002(2)ALD96, 2002(2)ALT473
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT
V.V.S. Rao, J .
Introduction:
1. The constitutional validity of Rule 3(2) of the A.P. Medical Colleges (Admission into Post-graduate Medical Courses) Rules, 1997 ( for brevity 'the Rules') insofar as the same does not consider the petitioners as "in service" candidates for the purpose of admission into Post Graduate Medical Courses and insofar as the same prescribes six years continuous regular service in specified Government service, is the subject -matter of these writ petitions.
2. In most of writ petitions, the amendment issued to the Rules in G.O.Ms. No. 279, dated 9-7-2001, denying the benefit of reservation as "in service" candidates to these who had already acquired PG degree/diploma qualification prior to or after their entry into service, is challened. In a couple of cases, G.O. Ms. No.260, dated 10-7-1997, whereunder the Rules were made, as indicated hereinabove, is challenged. The grounds of challenge in both the groups of writ petitions are the same, and therefore, they are disposed of by this common judgment.
BACKGROUND OF THE FACTS
3. For the sake of convenience, we may state the necessary facts in WP No. 18260 of 2001, in which G.O. Ms. No. 279, dated 9-7-2001, is challenged. Likewise, the pleadings of the petitioners' in WP No. 28215 of 1998 may be noticed insofar as the challenge to Rule 3(2) of the Rules, is concerned. We may also notice that except in WP No. 19780 of 2001, the facts in all other writ petitions are the same. WA No. 1696 of 2001 arises out of an interlocutory order passed in WPMP No. 26599 and WVMP No. 2875 of 2001 in WP No. 21100 of 2001. When this writ appeal was listed before the Division Bench, it was directed to list all the connected writ petitions along with the writ appeal. That is how all the writ petitions are before this Bench.
4. In WP No. 28215 of 1998, the petitioner is a medical practitioner in Sri Krishnadevaraya University. He is MBBS graduate and was appointed as such on 20-12-1990. When the relevant notification was issued by the University of Health Sciences ( or short 'the UHS'), he had put in eight years of service. It is his case that there are 13 Universities is the State, including the Regional Engineering College, Warangal, where the University Health Centres exist to cater the medical needs of the students and staff of the University. All the Medical Officers are registered with the Medical Council of the State. The petitioner appeared for entrance test on 13-8-1998. In the said test he obtained a rank of 381, in Sri Venkateswara University local area. However, as he did not belong to any of the services mentioned in the Explanation to Rule 3(2) of the Rules, his case was not being considered for admission to the seats reserved for "in service" candidates. He also states that the Executive Council of the UHS recognised the service of the University Heath Centre as equivalent to A.P. Medical and Heath Services, and that all the University Medical Officers have parity in status, scales of pay and other service conditions, and they cannot be discriminated with the doctors in Government Medical Service. He also contends that non-inclusion of the doctors working in University Medical Centres from Government "in service" doctors, violates Articles 14 and 16 of the Constitution of India.
5. In WP No. 18260 of 2001, there are 12 petitioners. All of them are graduates in MBBS and they also obtained postgraduate qualifications. They were appointed as Civil Assistant Surgeons in A.P. Medical and Heath Service. They state that they are eligible to claim the benefit of reservation as "in service" candidates for admission into PG degree/diploma courses. By reason of G.O. Ms. No. 279, dated 9-7-2001, an amendment was made to the rules promulgated in G.O. Ms. No. 260, dated 10-7-1997. By reason of the said amendment, "in service" candidates who acquired PG degrees/diplomas either before or after entry into Government service are not to be considered for selection under "in service" reservation quota. The petitioners, therefore, filed the writ petition challenging the G.O. It is stated that all the doctors in Government service form part of a single homogeneous class, and the classification now sought to be made does not satisfy the requirements of Article 14 of the Constitution of India. The classification is unreasonable and arbitrary, and violates equality clause in the Constitution.
6. The Joint Secretary to the Government in Health, Medical and Family Welfare Department has filed common counter-affidavit in all the writ petitions. The averments in the counter-affidavit in brief are as under:
7. Reservations for "in service" candidates is provided with a view to encourage and give opportunity to those candidates who possess bachelors degree in medicine to acquire PG qualifications for ensuring better health care for the people in the State. The intention is not to consider the candidates who already acquired PG qualifications. To achieve such an objective, rules were amended by G.O.Ms.No. 279, dated 9-7-2001. As per amendment candidates who acquired PG degree/diploma either before entry or after entry into service shall not be considered for selection under "in service" reservation quota of 15 per cent in clinical subjects or 30 per cent in non-clinical subjects. The amendment also provided that if a service candidate with PG qualification is selected for PG degree in the same specialty, he/she shall be allowed deputation for another period of 12 months. It is stated that the rules do not prohibit eligible candidates from pursuing more than one PG degree/diploma course. The rules only prescribe that a candidate undergoing PG degree/diploma course in one subject cannot seek admission into another PG degree/diploma Course. As per the rules, a student of PG degree/diploma is paid stipend for 36/24 months respectively. Such stipend is paid at the rate of Rs. 4,800/- per month in the first year, Rs. 5,000/- per month in the second year, and in the case of degree course, Rs. 5,200/- per month is paid in the third year. In the case of candidates, who secure admission by reason of reservation provided under Rule 3(2) of the Rules, leave is sanctioned by the competent authority to such candidates for the entire course period, and such Civil Assistant Surgeons/Asst. Professors whose basic pay in Rs. 6,950/--14,425/-, on being selected for admission into PG degree/diploma course, and on their being eligible for deputation, will be entitled for the last pay drawn during the period of which the candidate is undergoing the PG degree/diploma course. If a PG diploma holder is selected for PG degree course, he will be eligible for stipend for another 12 mothers. However, no PG student is eligible for stipend for more than 36 months in the entire post-graduate study period. If an "in service" candidate, who has not put in minimum service, as specified in Rule 3(2) of the Rules, then he shall not be entitled for any kind of leave or allowance.
8. It is also stated that even prior to the amendment issued in G.O.Ms.No. 279, dated 9-7-2001, "in service" candidates though were entitled to pursue second PG degree/diploma course, were not entitled for stipend or deputation for pursuing the second PG degree/diploma. The benefit of reservation is given to only such of those candidates who do not have PG degree/ diploma qualifications either prior to or after entry into Government service. Those candidates can still complete with other non-"in service" candidates and prosecute second PG degree/diploma course without claiming the "in service" reservation. It is also stated that as per Fundamental Rule 18, a Government servant can be granted extraordinary leave for prosecuting higher studies for a maximum period of five years, and such leave period shall be counted as a qualifying service to the extent of 36 months, provided such Government servant serves the Government for atleast 36 months. Therefore, no Government servant can claim reservation as "in service" candidate inspite of holding a degree/diploma. There are 696 PG seats in all the medical colleges in the State, and out of these, 42 non-clinical and 83 clinical PG medical seats are reserved for "in service" candidates. The amendment, which was brought into force on 9-7-2001, has been applied prospectively. The UHS fixed 31-7-2001 as the cut off date for reckoning the service for the purpose of giving the benefit of reservation as "in service" candidate. The contention of the petitioners that the amendment is retrospective, is denied.
9. The service in tribal areas is the least preferred posting by the doctors. These areas are in urgent need of medical and health facilities, and therefore, with a view to give incentive to the doctors serving in tribal areas, the reservation is extended under Rule 3(2) of the Rules to those candidates who have served in tribal areas for a period of two years. The Government vide G.O. Ms. No. 624, Medical and Health, dated 29-12-1993, established A.P. Tribal Health Services, which is part of the A.P. Medical and Health Services, The said service comprises of all the posts in the category of Civil Assistant Surgeons, Deputy Civil Assistant Surgeons and Civil Surgeons attached to the institutions located within the Tribal Sub Plan Area/Integrated Tribal Development Agency. After identifying the institutions located in the notified tribal areas, these institutions were brought under the purview of A.P. Tribal Health Services vide G.O. Ms. No. 456, dated 28-11-1995.
10. Insofar as the Rural Health Service is concerned, it is stated in the counter-affidavit that it is the policy of the Government to provide primary medical health care to the rural population who are away from cities and need regular medical facilities. In order to achieve this objective, and with a view to cater to the medical and heath needs of the rural population, doctors who have passed MBBS and are selected for Government service are required to work for a period of three years in rural areas to be eligible for the benefit of reservation under the "in service" quota for admission into PG medical course. Two years tribal service, and three years rural service is considered as "continuous Government service", and whereas in the case of other non-tribal and non-rual service, six years service is required for treating a candidate as an "in service" candidate for admission into PG medical course. This was done with a view to encourage the Government doctors to opt for tribal and/or rural service. Six years minimum service is prescribed for claiming reservation as "in service" candidate so as to encourage senior "in service" medical graduates to pursue PG course. It is also stated in the counter-affidavit that "continuous regular service" in a specified Government service is alone considered for the purpose of reservation, and candidates working as doctors in Government or other services, other than "in service" candidates, as defined under Rule 3(2) of the Rules are not entitled for reservation, though they are entitled to prosecute their PG studies on being sanctioned extraordinary leave without allowances for the period of study.
11. In the counter-affidavit it is also explained as to why the service under the A.P. Vaidya Vidhana Parishad was included in the rule. The said Parishad was constituted under the AP Vaidya Vidhana Parishad Act, 1986. It provides for the constitution of a Commissionerate for establishing, expanding and administering District, erstwhile Taluk Hospitals and Dispensaries for providing better medical care in the State. The Act aims at achieving the object enshrined in Article 47 of the Constitution. Likewise, the University of Health Science is established under the University of Health Sciences Act, 1986. Under Section 8 of the Act, all colleges and institutions, which were earlier affiliated to Osmania University, Andhra University, Sri Venkateswara University, Nagarjuna University, Kakatiya University and Sri Krishnadevaraya University were disaffiliated from the said Universities and were affiliated to NTR University of Health Sciences. Since all the colleges and teaching hospitals are under the administrative control of the Government, the "in service" candidates are those candidates who are included within the definition of "in service" candidate. The service under the A.P. Medical and Health Services, the service under the A.P. Insurance Medical Services, the service under the A.P. Vaidhya Vidhana Parishad and the service under the University of Health Sciences, constitutes a distinct class from other services, and they are in most need of the benefit of reservation, and therefore, the said services were included in Rule 3(2) of the Rules. The counter-affidavit also adverts to G.O.Ms.No. 220, dated 24-4-1999, which was issued in respect of medical institutions functioning under the Tirumala Tirupati Devasthanam. We will advert to this at appropriate place.
12. It is further stated in the counter-affidavit that the petitioners are not entitled to reservation as a matter of right. The reservation for admission into PG degree/ diploma under "in service" quota is not a condition of service, and by reason of the impugned amendment, the conditions -of service of the petitioners have not been varied, altered or taken away. By reason of the amendment in G.O. Ms. No. 279, dated 9-7-2001, the petitioners are not subjected to any discrimination. Since the benefit of reservation is primarily intended to be conferred on the "in service" medical graduates, the petitioners who are PG degree/ diploma holders, cannot claim any reservation as "in service" candidates. The object which is sought to be achieved by the classification is to encourage "in service" medical graduates working in specified services to take up service in tribal and rural areas, and to enable them pursue PG medical course. The doctrine of legitimate expectation has no application to the petitioners as they are not deprived of their legitimate claim to improve their qualifications.
SUBMISSIONS MADE BY THE COUNSEL
13. M/s. M.R.K. Choudary and P. Gangiah Naidu, learned senior Counsel, M/s. K. Ramakanth Reddy, P. Venugopal, K. Chidambaram, P. Sridhar Rao, and other learned Counsel, who appeared on behalf of the petitioners, made the following submissions, (i) Clause (c) of Explanation 1 to Rule 3(2) of the Rules insofar as the same prescribes six years of continuous regular service in specified services is irrational and arbitrary. When two years of continuous regular tribal service and three years of continuous regular rural service is considered necessary for treating a doctor as an "in service" candidate, there is no valid reason for prescribing six years of continuous regular service in non-tribal and non-rural Government service; (ii) Clause (c) of Explanation II to Rule 3(2) of the Rules insofar as the same excludes Doctors other than those belonging to only A.P. Medical and Health Service, AP Insurance Medical Service, AP Vaidhya Vidhana Parishad or University of Health Sciences for the purposes of definition of 'continuous regular service' is violative of Article 14 of the Constitution of India. Others left out are similarly situated and are in the services of statutory corporations, local bodies etc. The classification is discriminatory in that it has no nexus with the object sought to be achieved nor is there are any intelligible differentia to justify the exclusion of the non-included service. The classification is arbitrary and irrational and liable to be interdicted by the Court; (iii) the non-inclusion of the doctors working in University Health Centres, Tirumala Tirupati Devastanam and other such quasi Government services is unsustainable, and a mandamus can be issued to include the excluded categories in the definition of 'continuous regular service': (iv) The notification issued vide G.O. Ms. No. 279, dated 9-7-2001, made certain amendments inserting a proviso before Explanation I to Rule 3(2) excluding the "in service" candidates who acquired PG degree/diploma before or after entry into Government service, and the amendment made to Rule 11(xii) permitting a service candidate who acquired PG diploma to continue on deputation for another period of 12 months in the event of being selected for PG degree offends Articles 14 and 16 of the Constitution of India. The bar created by the impugned amendment is discriminatory and arbitrary; (v) When the petitioners joined service, there was no such rule prohibiting a service candidate with a PG degree/diploma obtained prior to or after joining the service to claim reservation as "in service" candidate and therefore, the right to reservation being a condition of service, the rule only operates prospectivety. The accrued right to claim reservation cannot be taken away by amendment by G.O.Ms.No. 297, in 2001; and (vi) Pending writ petitions, by virtue of interim orders, the petitioners who were admitted into PG degree course of their choice, on the principles of equity be allowed to continue and complete the course notwithstanding any adverse finding on the main questions involved in the case.
14. Sri Ramesh Ranganathan, the learned Additional Advocate-General appearing for respondents 1 and 2 submits that in the absence of any constitutional obligation to make reservation for "in service" candidates in PG admissions, the petitioners have no right to claim reservation. Reservation is provided at the discretion of the State, and therefore, the petitioners who belong to other services not included in the definition of "in service" candidates cannot have any enforceable right. In the case of under-inclusion on the plea of Article 14 of the Constitution, the petitioners cannot maintain the writ petitions. Given the settled legal position that no mandamus can be issued to the State to provide reservation, the Court cannot compel a State to include the categories of services in which the petitioners are working for the purpose of reservation under Rule 3(2) of the Rules.
15. He further submits that the classification of "in service" candidates into those who acquired graduate qualifications and joined service and those who acquired PG degree/diploma qualfication before or after joining the service is a valid classification which has a nexus with the object sought to be achieved and cannot be faulted on the theory of classification. Resevation comprehends within its meaning those categories who need immediate attention either being more backward or more in need and those less backward who are not in need of any special treatment. For the purpose of giving special treatment, the same class of persons can be grouped into two classes. The argument based on assumed prospectivity of the rule is misplaced. The amended rule cannot be characterized as retrospective only for the reason that is has been made applicable to existing employees. Further, the provision of reservation for "in service" doctors is not a condtion of service, and there is no service rule which confers such a right on a Civil Assistant Surgeon to prosecute further studies that too with the benefit of reservation as "in service" candidate. The learned Additional Advocate-General has placed reliance on various decisions of the Supreme Court to which we will make reference at appropriate place.
POINTS FOR CONSIDERATION
16. In the light of the submissions made before us, the following points arise for consideration:
(i) Whether Clause (c) of Explanation I, and Clause (c) of Explanation II of Rule 3(2) of the Rules offend equality clause in Article 14 of the Constitution of India, and whether the under-inclusion of the petitioners in the category of "in serivce" candidates is arbitrary and irrational?
(ii) Whether amendment made vide G.O. Ms. No. 279, dated 9-7-2001 amounts to discrmination subjecting the petitioners and their likes to hostile discrimination by denying them the benefit of resevation as "in service" candidates?
(iii) Whether reservation as "in service" candidate is condition of service, and whether such condition of service can be modified or altered by reason of an amendment, taking away the right, if any, vested in the petitioners to seek reservation as "in serivce" candidates?
(iv) To what relief? LEGAL PROVISIONS
17. Before examining the issues, it is necessary to notice the statutory provisions, which govern to PG medical admissions in the State of Andhra Pradesh. The regulation of admissions into all educational institutions in the State of Andhra Pradesh is governed by the A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 ( for short 'the Act'). Section 3 thereof provides that admissions into educational institutions shall be made either on the basis of marks obtained in the qualifying examination or on the basis of ranking assigned in the entrance test. As per proviso to Section 3(1), admission into medical colleges shall be made only on the basis of ranking assigned in the common entrance test conducted for the purpose. Sub-section (2) of Section 3 further provides that admission into educational institutions under Sub-section (1) of Section 3 shall be subject to the rules made by the Government in regard to reservation of seats to the members belonging to Scheduled Castes, Scheduled Tribes, Backwad Classes and other categories of students, as may be notified by the Government. In making admissions, the University and colleges are required to follow the A.P. Educational Institutions (Regulation of Admission) Order, 1974, which was promulgated by the President of India in exercise of the powers conferred under classes 1 and 2 of the Article 371(D) of the Constitution of India. Section 15 enables the Government by notification to make rules for carrying out the purposes of the Act, and Section 12 gives overriding effect to the Act notwithstanding anything inconsistent contained in any other law for the time being in force. After coming into force of the Act, the Government has promulgated rules from time to time and amended them from time to time.
18. The rules for admission to PG courses in the medical colleges in the State of Andhra Pradesh were first promulgated under the Act vide G.O.Ms.No. 549, Medical and Health, dated 6-9-1983 (hereinafter referred to as 'the Old Rules'). Candidates who have passed MBBS examination from one of the Universities or any other University, recognised as equivalent thereto, and those who have completed internship on the notified date, are eligible to apply subject to fulfilling conditions. The admission to the PG courses is based on the ranking obtained in the entrance test, and those candidates who qualify by scoring minimum of 60 marks (50 for SCs and STs), are alone eligible for being considered for admission. The syllabus for the entrance test is that of MBBS standard of the Universities of Andhra Pradesh, and the entrance test shall be of objective type, not exceeding 200 questions, to be answered in three hours duration. Under Rule 3(2) of the said Rules, 15% of the seats in clinical subjects and 30% of the seats in non-clinical subjects shall be reserved for "in service" candidates, and such reservation shall be applicable to OC, SC, ST and BC categories. The candidates who are selected on merit in respect of those categories shall be counted against "in service" quota. The rule also explains as to who is an "in service" candidate. To ascertain as to what is the requisite service to be put in for claiming reservation as "in service" candidate, it is necessary to notice the Rule 3(2) as it was originally promulgated. 3(2) 15% of seats in clinical subjects i.e., in medicine, surgery, obstetrics and gynaecology groups and 30% of seats in Non-Clinical subjects or in each group are reserved for in service candidates, the reservation of in service candidates shall be applicable in each category. Candidates selected on merit in respect of categories shall be counted against in service quota.
Explanation :--An in service candidate is one who has put in a minimum two years service on duty in the respective service. For purpose of this rule in service candidates include persons who are appointed in the following service.
(i) Andhra Pradesh Medical and Health Services;
(ii) Andhra Pradesh Insurance Medical Services;
(iii) Andhra Pradesh Municipal Services; (iv) Andhra Pradesh Panchayat Raj Services;
(v) Andhra Pradesh State Road Transport Corporation Services.
19. The Old Rules were amended by G.O.Ms.No. 22, M & H (E2), dated 19-1-1985, and subsequently by virtue of G.O. Ms. No. 724, M & H, (E2), dated 19-12-1985, adding a note below explanation to Rule 3(2) whereunder two years minimum service on duty in any of the specified services or one year service on duty in any institution of the Medical and Health Department in the tribal area was considered as compulsory for treating as an "in service" candidate. By G.O. Ms. No. 357, dated 9-9-1996, Rule 3 was again amended increasing the percentage of reservation for SCs and STs. The amended rule also provided that for considering a doctor for the purpose of reservation as an "in service" candidate, three years continuous service is necessary.
20. Here we may notice Rule 6, which deals with eligibility of candidates. As per Sub-rule (2) of Rule 6, applicants who are already PG degree holders or those who are admitted and registered for PG degree in a subject shall not be considered for selection for PG degree/diploma in any other subject. However, PG diploma holders in a subject can be considered for PG degree course in the same subject, and not otherwise. Rule 11, which is given the heading "Admission Rules", deals with attendance, leave, private practice, accommodation, stipend, fee, etc. Rule 11(9) lays down that "in service" candidates shall not be paid stipend if they draw the leave salary.
21. As can be seen from the Old Rules, doctors who are in the Government medical service or Municipal, Panchayat or road transport service with a minimum of two years, are considered as "in service" candidates subject to the condition that an applicant who is already a PG degree holder or diploma holder shall not be considered as "in service" candidate, and no stipend is payable to such PG "in service" candidate even if he is admitted to PG course without the benefit of reservation.
22. The Government of Andhra Pradesh issued G.O.Ms.No. 260, Medical, Health and Family Welfare, dated 10-7-1997 notifying new set of rules. These rules made under Section 15 of the Act superseded all the existing rules, and presumably made changes in the earlier rules having regard to the unreported decision of the Division Bench in Writ Petition No. 3457 of 1988, dated 26-7-1988, wherein the rules prohibiting service candidates with PG degree/diploma qualifications from pursuing another course, was held to be arbitrary and irrational. These rules are called A.P. Medical Colleges (Admission into PG Medical Courses) Rules, 1997 (hereinafter referred to as 'the Rules'). Rule 3(2) of the New Rules, insofar as the same is relevant reads:
3(2). 15% of seats in clinical subjects i.e., in Medicine Surgery, Obstetrics and Gynaecology Groups and 30% of the seats in non-clinical subjects in each group for Degree and Diploma Courses separately are reserved for "in service" candidates in each category under service quota. Candidates selected on merit in respective categories shall be however counted against service quota. Service rendered shall be calculated as per date specified by University of Health Sciences.
Explanation -1 It is hereby clarified that "in service" candidates means a candidate who has put in--
(a) two years of continuous regular tribal service;
(b) three years of continuous regular rural service; or
(c) six years of continuous regular service. Explanation - 2
(a) 'Tribal' means service in tribal institutions recognised by Government of Andhra Pradesh.
(b) 'Rules Service' means service in Primary Health Centres, Subsidiary Health Centres, Dispensaries, Taluk Hospitals, Mobile Medical Units, Leprosy Control Units or the Sample Survey-cum-Assessment Units, under Leprosy Temporary Hospitalisation Wards situated in Taluks and Leprosy Training Centre at Pogiri (Ref: G.O.Ms.No. 31, HM & FW (B2) Department, dated 11-2-1997).
(c) 'Continuous regular service' means regular service in Andhra Pradesh in the following services, namely:-
(a) Andhra Pradesh Medical and Health Services;
(b) Andhra Pradesh Insurance Medical Services;
(c) Andhra Pradesh Vaidya Vidhana Parishad; or
(d) University of Health Sciences.
23. A note is appended under Rule 3(2) prescribing the method and manner of producing a certificate in support of claim as "in service" candidate for the purpose of reservation provided under Rule 3(2). The eligibility criteria is provided under Rule 6, which reads:
ELIGIBILITY:
(i) candidates who have passed the MBBS examination recognised by the Indian Medical Council and who will complete internship on or before the date specified in regulations of UHS are eligible to apply subject to the fulfilment of the conditions stipulated in Rule 4.
(ii) Candidates who are already admitted and studying Post Graduate Degree or Diploma courses shall not be permitted to appear for Entrance Test until they complete the course or discontinue the course by remitting the bond amount and stipend taken upto that date before submitting the application form for Entrance Test and such candidates shall submit the discontinuance certificate issued by the Head of the Institution along with the application form.
24. Rule 11 deals with admission rules and provides that stipends will be paid to the Post-Graduates as long as the Government continues the existing schemes for such payment, and who are regular in attendance. The period during which such stipend shall be paid shall not exceed 36 months for PG degree course and 24 months for PG diploma course. However, no post-graduate degree holder, who enjoyed stipend for 36 months is eligible for further stipend either to study PG degree/diploma in any specialty if selected. But in the case of PG diploma holder who enjoyed stipend earlier for 24 months and gets seat in PG degree course, such candidate is eligible for stipend for another 12 months only. In the case of "in service" candidates, selected under service quota, they shall be treated as on deputation, and the period of deputation shall be restricted to 36 months only. A service candidate selected under service quota for diploma course is also eligible for another period of 12 months deputation if he is selected for a PG degree course in the same subject in which diploma course was prosecuted. Rule 11 also provides that any candidate in Government service other than "in service" candidate, as defined under Rule 3(2) if selected for any PG course shall not be entitled for any kind of leave, including extraordinary leave for prosecuting PG courses unless such a candidate has put in minimum service specified in Rule 3(2).
25. A plain reading of the relevant rules shows that a service candidate with MBBS degree, who belongs to either A.P. Medical and Heatlh Service, A.P. Insurance Medical Service, A.P. Vaidya Vidhana Parishad Service or University of Health Sciences, who has put in two years tribal service or three years rural service or six years of continuous regular service can only be considered as "in service" candidate for the purpose of Rule 3(2). As per Rule 6(ii), candidates, both service or otherwise, who are admitted and studying PG degree/ diploma course are not even eligible for appearing entrance test. Be that as it may, as per Rule 11, candidates who have completed their first PG degree are not eligible for stipend, and if they are service candidates, they are not eligible for deputation or extraordinary leave. In other words, if a service candidate is selected as "in service" candidate, and completed first PG degree/diploma, he is not entitled to any deputation or stipend, an exception being made only in the case of "in service" PG diploma holder, in which event, he will get another 12 months of deputation. The Government of Andhra Pradesh clarified the position by issuing an amendment in G.O. Ms. No. 279, dated 9-7-2001. By the said amendment, the following proviso was inserted before Explanation 1 to Rule 3(2):
Provided that such of those "in service" candidates who acquired Post Graduation degree or Diploma either before entry into Government service or after entry into Government service shall not be considered for selection under "in service" reservation quota of 15% in clinical subjects or 30% in non-clinical subjects as the case may be for another Post-Graduation degree or Post Graduation diploma as the case may be.
26. By the said GO, the following was added after Clause (b) of Sub- rule (xii) of Rule 11:
In case, if a service candidate who acquired Post-Graduate diploma in a particular specialty either before entry into Government Service or after entry into Government Service and if he or she is selected for Post-Graduate degree in the same specialty, shall be allowed deputation for another period of twelve (12) months as he or she has drawn stipend for two (2) years while doing diploma in the specialty.
27. The above amendments issued in G.O.Ms.No. 279, dated 9-7-2001, which are challenged in the batch of the writ petitions, only makes the position patent, which is already therein the New Rules. By reason of the above amendments, a service doctor who acquires PG degree/diploma either before entry into Government Service or a service doctor who acquires PG degree/ diploma after entry into service shall not be considered for selection under the "in service" reservation quota, as provided under Rule 3(2). The amendment further provides that if a service doctor who joins the Government service with PG diploma or acquires diploma after joining service shall be allowed to prosecute PG degree course in the same subject with the benefit of deputation for 12 months. A reading of second paragraph of the GO makes it clear that the intention of providing reservation for "in service" candidates in PG medical courses in medical colleges in the State is to give an opportunity to such of those "in service" candidates who possess bachelors degree in medicine, and to enable them to acquire PG qualification for ensuring better health care for the people in the State. The intention of providing reservation for "in service" candidates is certainly not to consider the candidates who had already acquired PG qualification either before joining the service or after joining the service.
In Re Point No. 128, For the purpose of giving the benefit of service reservation quota, the rule considers the service in four different Government/quasi-Government services only as continuous service, and excludes the service doctors in other public sector undertakings, statutory bodies and corporations like Municipalities, Road Transport Corporation, TTD etc. This is challenged as discriminatory. However, the various Service Rules which govern the included service and excluded service are not placed before us. Be that as it may, we have gone through the AP Medical and Health Services, A.P. Insurance Medical Services and the other services, and we are of the considered opinion that having regard to the object of providing reservation to "in service" candidates, the classification is justified. Reservations for "in service" candidates is primarily intended to give an opportunity to Government doctors with bachelors degree in medicine to acquire postgraduate qualifications so that better health care facilities are avaialable in Government hospitals, which cater to the needs of large number of people. Further, all the doctors in the Government hospitals are liable to be transferred anywhere in Andhra Pradesh depending on the particular srevice rules. In the case of docotors working in APSRTC, TTD, University Health Centres etc., doctors operate in a very narrow and limited field, and generally they are not liable for transfer, and even if they are liable for transfer, they will be transferred within the Municipality, within the University etc. If the facility of "in service" reservation is extended to doctors working in Municipalities, University Health Centres etc., a great argument is not required to conclude that the benefits that accrue to the people of the State are limited. We need not elaborate further on this for the Legislature is presumed to have such power to determine what categories should be brought within the scope of legislation.
29. The mere fact that certain other categories are excluded for the purpose of classification does not enable a Court of judicial review to interdict the impugned action merely because all categories would have been included. It is for the Legislature to classify things and people either for denying or conferring a benefit, and it is only the duty of the Court to examine the classification with reference to Article 14. A legislation in order to pass rationality test and nexus test must satisfy (i) that the classification is founded on intelligible differentia, and (ii) that the differentia has a rational relation to the object sought to be achieved. Authorities on this point are galore. The doctrine of classification, as applied in American Law, has been adopted by the apex Court in many of its decisions (see State of West Bengal v. Anwar Ali Sarkar, , Bhudan Choudary v. State of Bihar, , and Ramakrishna Dalmiya v. Tendulkar, . The apex Court, in a recent judgment in State of A.P. v. Nallamilli Rami Reddy, , reiterated theory of classification under Article 14 of the Constitution of India. It is apposite to extract the same:
What Article 14 of the Constitution prohibits is "class legislation" and not "classification for purpose of legislation". If the Legislature reasonably classifies persons for legislative purposes so as to bring them under a well-defined class, it is not open to challenge on the ground of denial of equal treatment that the law does not apply to other persons. The test of permissible classification is twofold:
(i) that the classification must be founded on intelligible differentia which distinguishes persons grouped together from others who are left out of the group; and (ii) that defferentia must have a rational connection to the object sought to be achieved. Article 14 does not insist upon classification, which is scientifically perfect or logically complete. A classification would be justified unless it is patently arbitrary. If there is equality and uniformity in each group, the law will not become discriminatory, though due to some fortuitous circumstance arising out of peculiar situation some included in a class get an advantage over others so long as they are not singled out for special treatment. In substance, the differentia required is that is must be real and substantial, bearing some just and reasonable relation to the object of the legislation,
30. In Re Special Courts Bill, , the Supreme Court after referring to all the authorities dealing with the theory of classification permissible under Article 14, inter alia, formulated the following principles for testing the validity of classification made by the State.
# The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
# By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality, but if a law deals with the liberties of a number of well-defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.
# The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.
# The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned.
31. A submission was made that non-inclusion of other services like TTD, RTC, University Heatlth Centres, Municipalities, etc., is arbitrary and irrational. We will deal with the question of arbitrariness while we consider points 2 and 3. However, at this juncture, we may deal with the question of non-inclusion, or under inclusion in that whether non-inclusion of other services for the purposes of definition of continuous regular service in the Government gives rise to any grievance.
32. "Equality before law" is constitutional goal. The principle of equality before law and the principle of equal protection of law do not prohibit the State from resorting to classification. Subject to satisfying the 'rationality test' and 'nexus test', classification is a permissible device in governance for realizing specified goals. If a group of people is classified as one category for the purpose of denying or for the purpose of conferring a benefit, the people who are left out can always complain that they have been discriminated against. On the other hand, when denying the benefit or the privilege if some people are included in the classified group those people may also complaint that they have been unnecessarily included. If it is case of clubbing persons with discernible differences as one class, the Courts would strike down the same as over inclusion. But Courts do not interdict a case of under inclusion and issue mandamus to classify the under included category with designated class.
33. In Sakhawant Ali v. State of Orissa, , Section 16(1)(ix) of Orissa Municipalities Act disqualified advocate for municipality from contenting election to a seat in municipality. This provsioin was upheld by the apex Court holding:
The simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution,
34. A Full Bench of Rajasthan High Court in Shanker Birmiwal v. Union of India, , considered the scope of judicial review in the matter of classification which is either 'under inclusive' or over inclusive'. Justice S.C. Agrawal (as he then was) observed as under:
A classification may suffer from the defect of being under inclusive or being over inclusive. A classification is said to be under inclusive when the State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit on others who are similarly situated. A classification is said to be over inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. While examining the validity of legislation on the touchstone of Article 14 of the Courts have drawn a distinction between a classification which is over inclusive and a classification which is under inclusive. In cases where the classification is found to be over inclusive the Courts have interfered by striking down the offending part so as to exclude persons of groups who ought not to have been included in it. But the Courts have shown more tolerance towards laws which are challenged on the ground that the classification is under inclusive for the reason that the Legislature is free to recognize the degrees of harm and it may confine the benefits or burdens to those classes of cases where the need seems to be clearest. A distinction has to be drawn between the role of Legislature which has the affirmative responsibility and the role of the Courts which have only the power to destroy not to reconstruct.
35. In B.R Kapur v. State of T.N., (2001) 7 SCC 231, (Jayalialtha's case), a submission was made that Sub-section (4) of Section 8 of the Representation of Peoples Act, 1951 requires reading down to so as to apply the same to a non-Legislator and to render the same constitutionally valid. Section 8(4) of the Representation of Peoples Act, 1951 lays down that the disqualification under Section 8(3) thereof shall in the case of elected Member of Parliament or Legislature of a State, shall not take into effect until a final Court has confirmed the conviction and sentence. The submission was rejected by a Constitution Bench. It is apposite to refer to the observations made by the Supreme Court:
Section 8(4) opens with the words "notwithstanding anything in Sub-section(1), Sub-section (2) or Sub-section (3)", and it applies only to sitting members of Legislatures. There is no challenge to it on the basis that it violatives Article 14. If there were, it might be tenable to contend that Legislators stand in a class apart from non-Legislators, but we need to express no final opinion. In any case, if it were found to be violative of Article 14, it would be struck down in its entirety. There would be, and is no question of so reading it that its provisions apply to all, Legislators and non-Legislators, and that, therefore, in all cases the disqualification must await affirmation of the conviction and sentence by a final Court. That would be "reading up" the provision, not "reading down", and that is not known to the law.
36. The controversy before us is a case of under-inclusion. By reason of Sections 3 and 15 of Act 5 of 1993, the Legislature, has entrusted power of making rules to the Government. In doing so, it is always open to the Govrnment to adopt such a method for excluding other service doctors for the purpose of service reservation quota.
37. A subordinate legislation can be challenged on the ground that it is ultra vires, and it can also be challenged on the ground that it is unreasonable; not in the sense that it is not reasonable but in the sense that is manifestly arbitrary which will come within the embargo of Article 14 of the Constitution, (See M.S.B.O.S. and H.S Education v. Paritosh, , and I.E Newspapers (Bombay) Private Limited v. Union of India, . The rule is not challenged on the ground of being ultra vires. It is only challenged as arbitrary.
38. Yet another aspect of the matter is that Section 3(2) of the Act enables the Government to make reservation. The same does not confer any right to claim reservation. A prayer seeking a mandamus from this Court, that is what the petitioners are virtually doing, cannot be granted by this Court. It is well settled that reservation is provided at the discretion of the State, and no citizen can claim reservation as a fundamental right and compel the State to make reservations. In Ajit Singh II v. State of Punjab, , and Ajit Singh III v. State of Punjab, , the Supreme Court categorically laid down the said principle. Therefore, we hold that Clause (c) of Explanation II of Sub-rule (2) of Rule 3 of the Rules is not ultra vires, and the same does not violate Article 14 of the Constitution of India.
39. We shall now take up the question of validity of Clause (c) of Explanation I of Rule 3(2) of the Rules. Explanation I to Sub-rule (2) of Rule 3 clarifies that an "in service" candidate means a candidate who has put in two years of continuous regular tribal service, three years of continuous regular rural service or six years of continuous regular service. This is challenged as discriminatory and arbitrary. Indeed, this question does not strictly arise in some of the writ petitions, because as we have seen most of the petitioners do not belong to any of the four specified services for treating them to be in continuous regular service. Most of the petitioners in these writ petitions are working in non-Government services, and therefore, they cannot have any grievance if the State clarifies as to what "in service" means. However, we may briefly state the reasons to show that the submission is misconceived.
40. In the counter-affidavit filed by the Government, it is stated that by treating two years tribal service, three years rural service as eligibility criteria, the impugned rule intends to encourage "in service" medical graduates to take up service in tribal and rural areas and to pursue post-graduate medical course. The benefit is given by way of incentive. It is no imagination to say that generally most of the medical graduates who are appointed to Government service opt to be in urban areas, and the hospitals in tribal and rural areas are starved of medical doctors though huge funds are pumped into them. By providing such incentives, dual purpose is served - Firstly, doctors are posted in tribal and rural areas, and secondly, such doctors who are medical graduates get opportunity to prosecute PG studies.
41. The petitioners have not filed any reply-affidavit, denying the contentions of the State. In any event, there is no medical doctor with graduation, who has put in less than six years of service, before us, who alone can challenge the different eligibility service for treating as "in service" candidate. The rule also cannot be termed as arbitrary. It is well to remember that it is the province of the Legislature, as a matter of policy to classify a defined class or persons for legislative purpose, and when it comes to policy options, the State is the best Judge as to who should be included, and who should be excluded. The proposition is supported by two decisions of the Apex Court.
42. In T.N. Ed. Deptt M and G sub. Ser. Asson v. State of T.N., , the Supreme Court was dealing with a case of merger of teaching and non-teaching staff under Panchayats with District Board Service. In the process, the District Board employees got an upper edge in the matter of promotion to higher categories. Impugning Government order prescribing quota between two categories of employees merged, writ petitions were filed in the Supreme Court under Article 32 of the Constitution of India challenging the Government order as arbitrary and irrational. The Supreme Court observed that when the administration is entrusted to the executive, some play in the joints must be left to the Government, and as long as the Government action is not violative of fundamental rights and does suffer from constitutional excesses, judicial review is not permissible. It was further held:
........What was regarded as administrative impractical might, on later thought and activist reconsideration, turn out to be feasible and fair. The Court cannot strike down a G.O. or a policy merely because there is a variation or contradiction. Life is sometimes contradiction and even inconsistency is not always a virtue. What is important is to know whether mala fides vitiates or irrational and extraneous factor fouls. It is impossible to maintain that the length of service as District Board employees is irrational as a criterion. Let us assume for argument's sake that the mode of selection by the District Boards is not as good as by the Public Service Commission. Even so it is difficult to dislodge the Government's position that the teachers with mostly the same qualifications, discharging similar functions and training similar students for similar examinations, cannot be equated from a pragmatic angle without being condemned as guilty of arbitrariness.
43. The Apex Court in LIC of India v. S.S. Srivastava, 1988 (Supp) SCC 1, followed the dicta laid down in T.N Ed. Deptt M. and G. Sub-Ser. Asson case.
44. The learned Counsel for the petitioners placed reliance upon a judgment of the Full Bench of Orissa High Court in Salil Kumar v. State of Orissa, AIR 1988 Orissa 246, in support of their contention that giving weightage to rural service is arbitrary and unreasonable. The rule which fell for interpretation before the Orissa High Court provided weightage of service for the purpose of admissions as well. The same was held to be unreasonble on the ground that there is no guarantee that a post graduate would go back to rural areas, though he obtained admission only because be worked in tribal and rural areas. In our considered opinion, the rule before us does not provide any weightage. It provides an incentive so that doctors can go to tribal and rural area's where they are in much need. By the definition, it considers two years tribal service and/or three years rural service as continuous regular service and provides reservation. Further Rule 3(3) which provides reservation of 15% clinical and 30% non-clinical seats, does not make any distinction between those doctors who appear for "in service" reservation quota. Therefore, the rule does not suffer from the vice of arbitrariness and unreasonableness. We accordingly hold that Clause (c) to Explanation I to Sub-rule (2) of Rule 3 does not offend that equality clause in Article 14. Point No. 1 is thus answered against the petitioners, and in favour of the respondents.
45. Before we take up point Nos. 2 and 3, we may briefly deal with WP No. 19780 of 2001, filed by one Dr. J. Radha. She also filed WP No. 18711 of 2001 along with another doctor, challenging G.O. Ms. No. 279, dated 9-7-2001. In WP No. 19780 of 2001, she prayed for a writ of mandamus declaring the action of the Government in not taking into account the service rendered by her in Sri Venkateswara Institute of Medical Sciences (SVIMS) and Balaji Institute of Research and Rehabilitation for Disabled TTD Institute view as eligible service in view G.O. Ms. No. 220, dated 24-4-1990 and for a consequential direction to reckon the service rendered by her in TTD Institute as regular service and allot seat in PG medical course. According to the petitioner, she acquired PG degree in MD (Anesthesia) in 1984. She was appointed SVIMS, an autonomous institution. It is a statutory university established by an Act of the A.P. Legislature with effect from 25-7-1994. Her services were utilized in the category of Civil Assistant Suregon in TTD Institute which is under the administration and control of TTD. She alleges that she was also appointed as Civil Assistant Surgeon in accordance with A.P. Medical and Health Service Rules and she was posted at Primary Health Centre. Chinngottigallu for a brief period. Later she was posted as Assistant Professor in Anesthesia at SVIMS on 9-8-1997. According to her all the medical institutions in Tirupati have been brought under the control of TTD vide G.O. Ms. No. 220, dated 24-4-1999, and therefore, she must be deemed to have been in Government service. The rules prescribed minimum service of six years for being treated as "in service" candidate. She challenged the said rule in WP No. 21823 of 1999. Though she has now completed six years of service, her service in SVIMS and TTD Institute is not being considered, and hence she filed the writ petition. She placed reliance on G.O.Ms.No. 220, dated 24-4-1999.
46. The learned Counsel for the petitioner reiterated the same contentions before us. To appreciate the contentions, it is necessary to refer to G.O. Ms. No. 220, dated 24-4-1999. A reading of the said GO would show that SVRR Hospital, Government Maternity Hospital and SV Medical College are Government institutions; where as Balaji Institute of . Research and Rehabilitation for Disabled and other medical facilities are under the control of TTD. SVIMS is an autonomous institution. It is also funded by TTD. So as to improve the medical services in all these institutions, the Government thought to bring all of them under single management by entrusting the management to TTD subject to condition that the non-plan expenditure of all the institutions to the extent of 50% shall be borne by the Government. The Government further directed that the Government employees working in the institutions, transferred to TTD for the purpose of management, will continue to be Government employees, and there are no changes in the service conditions. The entire GO nowhere states that the services of the employees, like the petitioner working in either SVIMS or TTD institute or other medical facilities, stand transferred to Government service. Mere transfer of management of the three Government institutions to TTD does not result in the change of status of the petitioner from that of TTD employee to that of Government employee. The service certificates annexued to her application for PG admission would show that she is not working in any of the specified services, but she is working under the administrative control of the Director of TTD Institute and Director of Medical Education. She also stated in her affidavit, accompanying the writ petition that she was initially appointed in SVIMS which is an autonomous body, and which is not a service included in Rule 3(2). In the absence of any indication in G.O.Ms.No. 220, and in the absence of any orders merging the services of SVIMS and TTD institute in the Government service, the petitioner cannot be held to belong to any of the services mentioned in Rule 3(2). The contention raised before us is without any substance. Further, the petitioner being a post graduate is barred from seeking PG admission under "in service" reservation quota. Accordingly, we reject the contention of the petitioner in WP No. 19780 of 2001.
In Re Point Nos. 2 and 3:
47. As noticed above, by G.O. Ms. No. 279, dated 9-7-2001, a proviso before Explanation I to Rule 3(2) as well as a sub-clause before Clause (b) of Sub-rule (11) of Rule 11 was inserted. By reason of the above amendment, a doctor who joined Government service with a PG diploma/ degree or a doctor who obtains PG diploma/ degree after joining service, cannot be treated as "in service" candidate for the purpose of service reservation quota. The challenge to this amendment is two-fold. First, it is contended that exclusion of such "in service" candidates who have PG degree/ diploma amounts to hostile discrimination offending Articles 14 and 16 of the Constitution of India. Secondly, it is contended that when the petitioners joined service with PG diploma/degree there was no such prohibition, and that being a condition of service, the impugned amendment cannot be given restrospectivity divesting petitioners' of vested right. We shall deal with these questions in that order.
48. After amendment, all post-graduate doctors who are serving the State became ineligible for claiming reservation of service quota. Further, a Government doctor who joined the service with a post-graduate diploma or one who acquired such postgraduate diploma after joining service, are only entitled for seeking admission to PG degree in the same subject/specialty in which they studied PG diploma, and they shall be given the benefit of deputation of 12 months with full pay and other service benefits. The rule, in our opinion, has a salutary purpose
49. We have referred to all the rules in some detail. The basic eligibility qualification for seeking admission to PG diploma/degree course is MBBS degree. By reason of Rule 3(2) in all PG admissions 15% in non-clinical and 30% in clinical seats are reserved for "in service" Government doctors. If such reservation is extended to those Government doctors who already had PG diploma/degree prior to joining service, the very purpose of reservation would be defeated. The reservation is intended in PG admissions for those Government doctors who have MBBS degree so as to enable them to acquire PG diploma/degree. If the same is extended even to those Government doctors who have already PG diploma/degree, the same would result in providing reservation not to MBBS degree holders, but to PG diploma/degree holders, which is not the purpose for which reservation is made. Insofar as Government doctors who entered service with PG diploma or those who acquired PG diploma after entering into service, is concerned, they are also not provided reservations, but they are entitled to prosecute PG degree course in the same specialty, and they will be given the benefit of deputation with full pay and service, as is given in the case of service candidates with MDBS, subject to a limited period of deputation i.e., for a period of 12 months. This situation, as noticed earlier had been the same even prior to amendment. A reading of Rule 11 which provides admission rules shows that in the matter of giving stipends and deputation to "in service" candidates, the financial interest of the State have been kept in mind, and no PG candidate shall be given stipend for more than 24/36 months for PG diploma /degree respectively. From this point of view, the impugned rule, cannot be said to be discriminatory, arbitrary or irrational.
50. In this context, we may examine the ground of arbitrariness to invalidate legislative, subordinate legislative or administrative action.
51. The three grounds on which judicial review lies are illegality, irrationality and procedural impropriety. Arbitrariness as a ground in an application for judicial review is basically a species of the broader ground of 'irrationality', which is now well accepted as 'Wednesbury Unreasonableness'. A decision not governed by rules is arbitrary, despotic and capricious. This lexicographic definition of arbitrariness, i.e., something done without reason, may not furnish a comprehensive meaning of arbitrariness as used in the field of Constitutional Law and Administrative Law. The express ions "arbitrary, arbitrariness and arbitrary and capricious" are defined in Words and Phrases," Words and Phrases - Permanent Edition Vol. 3A, West Publishing Company (1995-96 Replacement Edition) in an elaborate manner. Some of the relevant definitions are as under:
The words "arbitrary" and "capricious" when used in a legal sense in determining that decision of administrative agency was arbitrary and capricious are to be distinguished from the same words used in a popular sense, where they have an opprobrious connotation; the Court uses them in a legal sense to indicate that the findings are without rational basis or that the evidence to support the findings is nonexistent or without probative value in either direction.
"Arbitrary" means in an "arbitrary" manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in nature of things, non-rational, not done or acting according to reason or judgment, depending upon will alone, absolutely in power, capriciously, tyrannical, despotic and without fair, solid and substantial cause; that is, without cause based upon the law or not governed by any fixed rules or standard.
"Arbitrary and capricious" act is wilful and unreasonable action, without consideration and in disregard of facts or circumstances and it is one lacking a standard or norm; words "arbitrary" and "capricious" are used synonymously and are frequently combined into a single term "'arbitrary and capricious".
"Arbitrary and capricious" actin on part of administrative agency is willful and unreasoning action, without consideration and in disregard of facts or circumstances and when there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration even though it may be believed that an erroneous conclusion has been reached.
52. We may mention that there are a few authorities which attempted to define arbitrariness in the field of Adminstrative Law. In S.G. Jaisinghani v. Union of India, , the Supreme Court laid down as follows:
In a system governed by rule of law, discretion, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rule and in general, such decisions should be predictable and the citizen should know where he is. If a decision taken without any principle or without any rule it is unpredictable and such decision is the antithesis of a decision taken in accordance with rule of law.
53. In Shrileka Vidyarthi v. State of U.P. , the Supreme Court held that non-arbitrariness is fair play in action, in case of arbitrariness the defect of irrationality is obvious and an act unfounded by reason is arbitrary. Dealing with the meaning of arbitrariness the Court ruled.:
The meaning and true import of arbitrariness is more easily visualised than precisely stated or defined. The question, whether an impugned act is arbitrary or not is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned Act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable may itself attract the vice of arbitrariness. Every state action must be informed by reason and it follows that an act uninformed by reason is arbitrary.
54. In Mahesh Chandra v. Regional Manager, , U.P. Financial Corporation the Supreme Court, in context of interpreting Section 29 of the State Financial Corporations Act, 1951, held that every arbitrary decision is unreasonable. It is useful to excerpt the following passage from the said decision:
The public functionaries should be duty conscious rather than power charged. Its actions and decisions which touch the common man have to be tested on the touchstone of fairness and justice. That which is not fair and just is unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. It does not become bona fide and in good faith merely because no personal gain or benefit to the person exercising discretion should be established. An action is mala fide if it is contrary to the purpose of which it was authorised to be exercised. Dishonesty in discharge of duty vitiates the action without anything more. An action is bad without proof of motive of dishonesty, if the authority is found to have acted contrary to reason.
55. Therefore, it may be taken as well settled that arbitrariness as a ground of judicial review is primarily concerned with the 'rationality and reasonableness' of the decision. Whether a decision is arbitrary or not, has to be answered on the facts and circumstances of a case. A decision without any discernible principle which fails to satisfy the test of reasonableness by logic is unreasonable and every unreasonable decision taken on the whims and fancies of the authorities, is arbitrary.
56. Irrationality, as held by the Supreme Court in Tata Cellular v. Union of India, AIR 1997 SC 11, is Wednesbury Unreasonableness. The principle was explained in many decisions of Indian Courts. We may refer to the judgment of Jagannatha Rao, J., in Om Kumar v. Union of India, (2001) 2 SCC 386, wherein His Lordship held:
Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken. There principles were consistently followed in the UK and in India to judge the validity of administrative action
57. Whether or not the impugned rule is arbitrary has to be decided on the factual background. We have referred to Rule 11 which deals with admission rules and provides for stipend and period of deputation for "in service" candidates. Every medical doctor who joins service with MBBS degree is given one chance to claim reservation under "in service" reservation quota. If a candidate who joins the service with PG diploma/degree, he cannot be considered as "in service" doctor with MBBS degree. Further, a doctor who joins the service with MBBS degree and obtains PG diploma/ degree as "in service" candidate once also cannot be repeatedly given the benefit of reservation. The reservation is provided as an exception to the general rule (Rule 9), especially having regard to the fact that there are a few seats of PG for which there is heavy competition. That is the reason why Rule 3(2) also provides that the Government doctors who are selected for PG course on merit in respect of the categories shall be counted against service quota. The reservation provided is not the reservation that is provided for SC, ST and BCs. This is a special privilege conferred only on graduate medical doctors. In that view of the matter, it cannot be said that the rule is arbitrary or irrational. It would have been different if the working doctors are totally denied the right to improve their qualifications further. The rule only says that as a policy, the stipend is given in case of PG diploma for 24 months and in case of degree for 36 months and no further. If a PG medical doctor wants to go on prosecuting PG studies in one branch after another, there is no prohibition, but he cannot claim extraodinary leave beyond certain period. Therefore, we hold that the impugned GO does hot suffer from any arbitrariness.
58. Whether the impugned order is restrospective and takes away the vested right of the petitioners, who are admittedly post-graduate diploma/degree holders for claiming reservation seats, under "in service" reservation quota? This is the second question, which nextly requires examination.
59. A Government doctor so as to be eligible for claiming post-graduate seat under "in service" reservation quota has to satisfy two conditions: That he has continuous regular service in any of the services mentioned in Clause (c) of Explanation II, and that he has put in such continuous regular service as per Explanation I to Rule 3(2). What is the date for calculating the requisite continuous regular service? Rule 3(2) itself provides that service rendered shall be calculated as per the date specified by the University of Health Sciences. The UHS issued a notification as per Rule 7 of the Rules prescribing 31-7-2001 as the date, for the purpose of calculation of service rendered by a service candidate. The last date for receipt of applications was 27-8-2001, the impugned G.O.Ms.No. 279, amending the rules was issued and notified on 9-7-2001. There is no dispute about these facts. In the background of these admitted facts, can it be said that the impugned amendment is retrospective? In our opinion, any such argument is not well founded. The distinction between a legislation which operates retrospectively and a legislation with retro activity is well established. Merely, because a legislation is brought into existence from a date anterior to the date of passing the same, cannot be held to be retro active. A reto active legislation is one which deals with matters which occurred long prior to the passing of the legislation, and retrospective legislation is one which operates and is enforced in relation to such situation anterior to the passing of the legislation or making of rules, but not with reference to actions and conduct long prior thereto. The rules do not confer any benefit on any MBBS candidate to seek admission to PG course. The appearance in the entrance test or making an application does not create any indefeasible right for admission. Mere appearance in the entrance test does not create any right (See Rule 10(iv) of the Rules). Given such rule position, the petitioners cannot contend that being "in service" candidates they had any right for such "in service" reservation, and that the same cannot be taken away by the impugned rule. Firstly, most of the petitioners are not in continuous regular service in any of the four specified Government services, and therefore, at the threshold, they are not eligible by reason of our holding on point No. 1. Be that as it may, some of the petitioners contend that their to claim reservation as "in service" candidate is a condition of service, and the same cannot be defeated. This submission is wholly misconceived.
60. None of the petitioners are governed by A.P. Medical and Health Service Rules, A.P. Insurance Medical Service Rules, A.P. Vaidya Vidhana Parishad Rules or University Health Centre Rules. The petitioners have not placed before the Court any specific rule in any of these four sets of rules which prescribes such a condition of service. The petitioners also have not placed any specific rule which applies to them conferring such a condition of service. Appointment, probation, suspension, seniority, promotion, disciplinary proceeding, pension, provident fund etc., are conditions of service. The mere status of belonging to a particular Government service or the service of local authority does not by itself create any other condition of service to claim reservation as "in service" candidate. Indeed, but for Rule 3(2), no Government doctor with MBBS degree can claim reservation. Further G.O.Ms.No. 279, dated 9-7-2001, was issued very much prior to issuance of the notification by the UHS, and mere completion of requisite service as on 31-7-2001 does not in any way divest the petitioners any right for no such right inheres in the petitioners.
61. The learned Additional Advocate-General placed reliance on the judgment of the Apex Court in Roshan Lal v. Union of India, and State of J & K v. T.N. Khosa, , in support of his contention that the rules cannot be characterized as retrospective only because they are made applicable to the existing employees. In Roshan Lal case (supra), the question before the Constitution Bench of the Apex Court was whether by making statutory rules, the conditions of service of existing employees can be altered. Answering the question in the affirmative, the Apex Court observed:
......But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emoluments of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest........
In T.N. Khosa case (supra), the Apex Court observed:
.....It is wrong to characterize theoperation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classified such employees for promotional purposes, undoubtedly operates on those who entered service before the framing of the rule but it operates in future, in the sense that it governs the future right of promotion of those who are already "in service". The impugned rules do not recall a promotion already made or reduce a pay scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the rule cannot first be assumed to be retrospective and then be struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the past. If rules governing conditions of service cannot ever operate to the prejudice of those who are already "in service", the age of supernnuation should have remained immutable and schemes of compulsory retirement in public interest ought to have foundered on the rock of retroactivity. But such is not implication of service rules nor is it their true description to say that because they affect existing employees they are retrospective. It is well settled that though employment under the Government like that under any other master may have a contractual origin, the Government servant acquires a status on appointment to his office. As a result, his rights and obligations are liable to be determined under statutory or constitutional authority which for its exercise requires no reciprocal consent. The Government can alter the terms and conditions of its employees unilaterally and though in modern times consensus in matters relating to public services is often attempted to be achieved consent is not a pre-condition of the validity of rules of service the contractual origin of the service notwithstanding.
62. Therefore, we accordingly hold on Point Nos.2 and 3 against petitioners.
In Re Point No. 4:
63. In all the writ petitions, either Explanation to Rule 3(2) or the amendment issued in G.O.Ms.No. 279, dated 9-7-2001, are challenged. In WP No. 28215 of 1998, this Court directed the respondents to consider the case of the petitioner for counselling, and made it clear that the provisional counselling shall not clothe the petitioner with any right to claim equitable relief. The petitioner was working as graduate Doctor in Sri Krishnadevaraya University and the same is not treated as continuous regular service in Government hospitals. It is not denied before us that pursuant to the interim directions issued by this Court, the petitioner was admitted in MD (Anesthesia) in November, 1999, and at present he is in final year of the course. In WP No. 19780 of 2001, the petitioner is a post-graduate medical doctor in TTD. She also passed PG degree in (Anesthesia). While admitting the writ petition, this Court granted interim directions are prayed for. In pursuant therefor, she was admitted in second PG course i.e., MD (Gynaecology) in Government Medical College in Tirupathi in September, 2001. In some cases, the petitioners were admitted in PG degree though they were PG diploma holders, on their own merit, but they approached this Court seeking reservation so that they can get admission in the speciality of their choice. In all other cases, no interim orders were passed.
64. Insofar as the legal contentions and main relief in all the writ petitions is concerned, we have held on all points against the petitioners, and all the writ petitions are liable to be dismissed. Insofar as the relief in WP No. 28215 of 1998, is concerned, we may notice that the petitioner joined as Medical Officer in Sri Krishnadevaraya University with MDBS degree. In the writ petition, he challenged the rules insofar as they do not include the University Medical service as eligible service for reservation. He appeared for the entrance test held on 13-8-1998. By reason of interim orders passed by this Court, he got admission, and is studying in second year. He completed substantial part of the course. Though this Court made it clear that the petitioner shall not claim any equities, Sri K. Ramakanth Reddy, the learned Counsel for the petitioner made a passionate submission that the petitioner be allowed to complete the course. Though the learned Additional Advocate General opposed granting any such relief, we are convinced that we must exercise our equilty jurisdiction so as to render justice to the petitioner in WP No. 28215 of 1998. The ends of justice would be met if the petitioner is allowed to complete the MD (Anesthesia) course along with his batchmates, who joined the course in 1998-99.
65. Insofar as the petitioner in WP No. 19780 of 2001 Dr. Radha is concerned, she is already a PG degree holder in Anesthesia, and is working in TTD. TTD service is not one of the services and the doctors belonging to such service are not at all eligible for seeking reservation. Further, she being already a PG degree holder, is not entitled to seek admission as per the rules amended in G.O.Ms.No. 279, dated 9-7-2001. The UHS prescribed schedule for PG medical admissions. The last date for selections was fixed as 3-10-2001 and the admissions were closed on 15-11-2001. MD classes are to commence on 15-10-2001. Therefore as on the date of closure of the arguments by us, the petitioner hardly attended 30 days of classes for her MD Gynaecology. Her admission, but for the interim orders of this Court, would have been illegal. As we are dismissing all the writ petitions, equity requires that she should not be allowed to have the benefit under the rule, which is held to valid, under which she is not entitled to seek admission "in service" reservation quota. Therefore, the submission of the Counsel that she may be given the benefit of admission, cannot be accepted and the seat which was given to her should be given to the next eligible candidate as per merit list. WA No. 1696 of 2001 is filed by the petitioner in WP No. 21100 of 2001 against interim orders in WPMP No. 26599 of 2001 and WVMP No. 2875 of 2001 directing to give admission to her. As we are dismissing all the writ petitions nothing survives in writ appeal and accordingly the same stands dismissed.
66. In the result, we pass the following order:
(a) All the writ petitions, for the aforementioned reasons are dismissed;
(b) Admissions given to any of the petitioners, and the admission given to the petitioner in WP No. 19870 of 2001 Dr. J. Radha, by virtue of the interim orders of this Court, shall stand cancelled, and the respondent-University of Health Science, shall forthwith cancel her admission and admit other eligible candidates in accordance with the merit in entrance test and as per rules;
(c) The petitioner in WP No. 28215 of 1998 Dr. Srinivasa, who was admitted to MD (Anesthesia) in November, 1999, pursuant to the interim orders of this Court, shall be allowed to continue and complete the said course, and he shall not be entitled for any further reservation as "in service" candidate in future.
(d) WA No. 1696 of 2001 shall stand dismissed; and
(e) There shall be no order as to costs.