Andhra Pradesh High Court - Amravati
Naralamounica, vs The Union Of India on 6 September, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
*THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
*THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
+ WRIT PETITION Nos.11583 OF 2019, 11656 OF 2019, 11704 OF 2019,
12006 OF 2019 AND 12106 OF 2019
%Dated: 06-09-2019
# Chunduri Kalyani Chowdary
and another (W.P. No.11583 of 2019) --- Petitioners
and
$ The Union of India
and others --- Respondents
! Counsel for the Petitioners : Sri Ghanta Rama Rao, Sr. Counsel
Rep. Sri Kambhampati Ramesh Babu
^ Counsel for Respondents : 1) Advocate General for R2
2) Sri B. Krishna Mohan
Assistant Solicitor General for R1
3) Sri Taddi Nageswara Rao
Standing Counsel for R3
4) Sri S.Vivek Chandrasekhar
Standing Counsel for R4
< GIST :
> HEAD NOTE :
? Cases referred :
Nil
2
AVSS,J & CMR,J
WP No.11583_2019 & Batch
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
WRIT PETITION Nos. 11583 OF 2019, 11656 OF 2019, 11704
OF 2019, 12006 OF 2019 AND 12106 OF 2019
COMMON ORDER:(per Hon'ble Sri Justice A.V.Sesha Sai) The grievance of the writ petitioners, precisely, as advocated by the learned Senior Counsel, Sri Ghanta Rama Rao, appearing for Sri Kambhampati Ramesh Babu, Sri G.Venkata Reddy and Sri K.S.Murthy, appearing for the writ petitioners in all these Writ Petitions, is "contrary to constitutional mandate, as prescribed in Clause (6) of Article 15, vide the Constitution (One Hundred and Third Amendment) Act, 2019, the respondent-authorities are allotting the seats in EWS quota also to the classes mentioned in Clauses (4) and (5) of Article 15 of the Constitution."
2. On the other hand, it is the submission of the learned Advocate General appearing for the State of Andhra Pradesh, learned Assistant Solicitor General, appearing for the Union of India and the learned Standing Counsel for the Medical Council of India, Sri Vivek Chandrasekhar, that the contention to the above said effect, having regard to the ground realities, is far from truth and is incorrect and no allotment of seats to the reserved categories under Clauses (4) and (5) of Article 15 of the Constitution is being undertaken in the 10% additional quota meant for EWS. It is their uniform further submission that the 3 AVSS,J & CMR,J WP No.11583_2019 & Batch allotment of seats, as indicated in page 15 of W.P. No.11583 of 2019, includes not only 10% meant for EWS but also the seats additionally sanctioned to maintain the required percentage for which reserved categories are entitled in view of the hike in the number of seats. In order to substantiate the said stand, they rely on various proceedings/ orders issued by the Union of India and the State Government.
3. In order to examine the said issues, it would be highly essential to refer to the provisions of the Constitution (One Hundred and Third Amendment) Act, 2019, dated 12.01.2019, which read as under:
"1. (1) This Act may be called the Constitution (One Hundred and Third Amendment) Act, 2019. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
2. In article 15 of the Constitution, after clause (5), the following clauses shall be inserted, namely:-
'(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,-
(a) any special provision for the advancement of any economically weaker sections of citizens other than for classes mentioned in clauses (4) and (5), and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clause (4) and (5) in so far as such special provisions 4 AVSS,J & CMR,J WP No.11583_2019 & Batch relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category.
Explanation, - For the purpose of this article and article 16, "economically weaker sections"
shall be such as may be notified by the State from time to time on the basis of family income and other indication of economic disadvantage.
3. In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely,-
"(6) Nothing in this article shall prevent the State from making any provisions for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category."
4. In furtherance and in pursuance of the above mentioned amendment, Ministry of Social Justice and Empowerment, Department of Social Justice and Empowerment, vide F.No.20013/01/2018-BC-II dated 17.01.2019, issued an Office Memorandum and according to which, the following persons whose families own or possess any of the following assets shall be 5 AVSS,J & CMR,J WP No.11583_2019 & Batch excluded from being identified as EWSs irrespective of the family income:
(i) 5 acres of agricultural land and above;
(ii) Residential flat of 1000 square feet and above;
(iii) Residential plot of 100 square yards and above in notified municipalities;
(iv) Residential plot of 200 square yards and above in areas other than the notified municipalities;
5. The Ministry of Human Resource Development Department of Higher Education, Government of India, vide F.No.12-4/2019-UI dated 17.01.2019, issued an Office Memorandum and while indicating therein that the provision of reservations should be in accordance with the directions contained in OM.No.20013/01/2018-BC-II dated 17.01.2019 of the Ministry of Social Justice and Empowerment, issued the following guidelines:
a) The reservations shall be provided to EWSs for admission in Central Educational Institutions (as defined in clause (d) of section (2) of the Central Educational Institutions (Reservation in Admission) Act, 2000) from the academic year 2019-20 onwards.
b) The above reservation would not be applicable to the 8 institutions of excellence, research institutions, institutions of national & strategic importance as specified in the Schedule to The Central Educational Institutions (Reservation in Admission) Act, 2006, as amended from time to time, and appended to this OM, 6 AVSS,J & CMR,J WP No.11583_2019 & Batch and to the minority educational institutions referred to in clause (1) of article 30 of the Constitution.
c) Every Central Educational Institution shall, with the prior approval of the appropriate authority (as defined in clause (c) of section 2 of the Central Educational Institutions (Reservation in Admission) Act, 2006), increase the number of seats over and above its annual permitted strength in each branch of study or faculty so that the number of seats available, excluding those reserved for the persons belonging to the EWSs, is not less than the number of such seats available, in each category for the academic session immediately preceding the date of the coming into force of the OM.
d) Where on a representation by any Central Educational Institution, the app0ropriate authority is satisfied that for reasons of financial, physical or academic limitations or in order to maintain the standards of education, the annual permitted strength in any branch of study or faculty of such institution cannot be increased for the academic session following the commencement of this Act, it may permit such institution to increase the annual permitted strength over a maximum period of two years beginning with the academic session following the commencement of this Act, and then the extent of reservation for the Economically Weaker Sections shall be limited for that academic sessions in such manner that the number of seats made available to the Economically Weaker Sections for each academic 7 AVSS,J & CMR,J WP No.11583_2019 & Batch session shall not reduce the number and percentage of reservations provided for SC/ST/OBC categories.
e) The scheme for implementing the reservation for the EWS shall be displayed on the website of the institution as soon as possible but no later than 31st March, 2019.
6. Thereafter vide F.No.V.11025/10/2019 MEP dated 29.01.2019, the Ministry of Health and Family Welfare, Medical Education Policy, Government of India, issued the following instructions to the Principal Secretaries to all the States/Union Territories (Medical Education):
a) The 8 institutions of excellence, research institutions and institutions of national and strategic importance as specified in the Schedule to The Central Educational Institutions (Reservation in Admission) Act, 2006 and minority educational institutions referred to in Article 36(1) of the Constitution are exempted from the operation of this Amendment Act, 2019. It is informed that North Eastern Indira Gandhi Regional Institute of Health and Medical Science, Shillong (NEIGRIHMS) is one of the 8 institutions exempted by the Act, 2006.
b) Every Central Educational Institution shall, with the prior approval of the appropriate authority as defined in clause (c) of section 2 of the Act, 2006, increase the number of seats over and above its annual permitted strength in each branch of study or faculty so that the number of seats available, excluding these reserved for the persons belonging to the EWSs, is not less than 8 AVSS,J & CMR,J WP No.11583_2019 & Batch the number of such seats available, in each category for the academic session immediately preceding the date of coming into force of these guidelines.
c) The applicability of this Amendment Act, 2019 for the increase of annual permitted strength need to be implemented from the academic year following the commencement of the Amendment Act but in case the annual permitted strength cannot be implemented for reasons of financial, physical or academic limitation or in order to maintain the standards of education, such increase can be implemented over a period of two years beginning with the academic session 2019-20, after the representation by the Central Education Institution to the appropriate authority and subject to its satisfaction on the grounds as stated above. At any stage of implementation of EWS reservation, the number and percentage of reservation provided for SC/ST/OBC categories shall not be reduced.
d) It is mentioned that no reservation is applicable in Super Specialty courses.
e) All State Governments/UTs have also been requested to give effect to the provisions of the said Constitution Amendment Act in respect of all higher education institutions funded/aided, directly or indirectly by the State Government starting from the academic year 2019-20.9
AVSS,J & CMR,J WP No.11583_2019 & Batch
7. In furtherance of the said policy, the State Government issued following guidelines, vide G.O.Ms.No.60 Backward Classes Welfare (F) Department dated 27.07.2019:
"In view of the above Government hereby decided to fill up the EWS quota of supernumerary seats in Higher Educational Institutions in accordance with 103rd Constitutional Amendment Act, 2019 and the guidelines issued by Government of India vide Office Memorandum F.No.36039/1/2019 Estt. (Res.) dated 19.01.2019. The guidelines relevant for current academic year 2019-2020, in regard to the subject matter consisting with 103rd Constitutional Amendment, would read as under:
i) All Castes which are not conversed under any reservation category (SC/ST/BC) are entitled to avail of the reservation facility under EWS Category.
ii) The students admitted under EWS Category will be adjusted against the 10 percent of the sanctioned seats granted additionally, as its followed by the Government of India. However, 1/3rd (33 1/3) of the seats enhanced for the purpose of accommodating the EWS Category students shall be earmarked to woman among them.
iii) The model format of the EWS Certificate prescribed by Government of India in Annexure-1 vide their O.M.No.36039/1/ 2019-Estt. (Res), dated 31.01.2019 shall be followed along with the conditions referred ink para 2 above.10
AVSS,J & CMR,J WP No.11583_2019 & Batch
iv) The persons seeking the benefit of reservation under EWS category shall obtain the necessary EWS Certificate issued by the Tahasildar concerned.
v) The eligibility conditions for a person to avail of the facility of EWS reservation are the same as fixed by the Government of India as referred in para 2 above."
8. The State Government subsequently, vide G.O.Ms.No.39 Higher Education (E.C.) Department dated 30.07.2019, issued certain guidelines and paragraphs 5 and 6 of the said G.O., read thus:
"(5) Government after careful examination of the matter have hereby decided to implement the above said provisions in accordance with 103rd Constitutional Amendment Act, 2019 and the guidelines issued by Government of India vide Office Memorandum F.No.36039/1/2019-Estt.
(Res.) dated 19.01.2019, and the guidelines issued by the Ministry of HRD, GOI, vide F.No.12-4/2019- UI, dated 17.01.2019. The guidelines relevant for current academic year 2019-2020, in regard to the subject matter consistent with 103rd Constitutional Amendment, would read as under:
a. All Castes which are not covered under any reservation category (SC/ST/BC) are entitled to avail of the reservation facility under EWS Category.
b. The students admitted under EWS Category will be adjusted against the 10 percent of the sanctioned seats granted additionally, as is followed by the Government of India. However, 11 AVSS,J & CMR,J WP No.11583_2019 & Batch 1/3rd (33 1/3) of the seats enhanced for the purpose of accommodating the EWS Category students shall be earmarked to women among them.
c. The model format of the EWS Certificate prescribed by Government of India in Annexure- 1 vide their O.M.No.36039/1/2019-Estt. (Res), dated 31.01.2019 shall be followed along with the conditions referred in para 2 above.
d. The persons seeking the benefit of reservation under EWS category shall obtain the necessary EWS Certificate issued by the Tahasildar concerned.
e. The eligibility conditions for a person to avail of the facility of EWS reservation are the same as fixed by the Government of India as referred in para 2 above.
(6) In this regard, every educational institution in AP shall increase the number of seats over and above its annual permitted strength in each branch of study or faculty from the academic year 2019-20. Further, the number of seats available, excluding those reserved for the persons belonging to the EWSs, should not be less than the number of seats that were available in each category, for the previous academic session of 2018-19."
9. While pointing out the particulars furnished by the Board of Governors in supersession of Medical Council of India, which are filed along with the Writ Petition No.11583 of 2019 (page-15), it is the emphatic submission of the learned counsel for 12 AVSS,J & CMR,J WP No.11583_2019 & Batch the writ petitioners that though the said number of seats have been granted exclusively for EWS quota, the respondent- authorities are following the rule of social reservation in the said quota also and allotting seats to the persons belonging to clauses (4) and (5) of Article 15 of the Constitution. The said particulars read as follows:
BOARD OF GOVERNORS IN SUPERSESSION OF MEDICAL COUNCIL OF INDIA ALLOTMENT OF SEATS UNDER 10% EWS QUOTA (2019-20) Increased Seats State Name of course Total seats seats approved permitted Andhra ACSR Government 150 25 175 Pradesh Medical College, Nellore Andhra Andhra Medical College, 200 50 250 Pradesh Visakhapatnam Andhra Government Siddhartha Pradesh Medical College, 150 25 175 Vijayawada Andhra Guntur Medical College, 200 50 250 Pradesh Guntur Andhra Kurnool Medical College, 200 50 250 Pradesh Kurnool Andhra Rajiv Gandhi Institute of 150 25 175 Pradesh Medical Science, Kadapa Andhra Rajiv Gandhi Institute of Pradesh Medical Science, Ongole, 100 20 120 AP Andhra Rangaraya Medical 200 50 250 Pradesh College, Kakinada Andhra S V Medical College, 200 40 240 Pradesh Tirupati Andhra SVIMS - Sri Padmavathi Pradesh Medical for Women, 150 25 175 Alipiri Road, Tirupati Assam Assam Medical College, 170 30 200 Dibrugarh Assam Fakhruddin Ali Ahmed Medical College, Barpeta, 100 25 125 Assam Assam Gauhati Medical College, 156 44 200 Gowhati Assam Jorhat Medical College & 100 25 125 Hospital, Jorhat 13 AVSS,J & CMR,J WP No.11583_2019 & Batch Assam Sitchar Medical College, 100 25 125 Sitchar Assam Tezpur Medical College & 100 25 125 Hospital, Tezpur
10. According to the learned Advocate General, learned Assistant Solicitor General and the learned Standing Counsel for the Medical Council of India, the number of seats as mentioned in the above particulars include not only 10% meant for EWS but also the seats additionally sanctioned to maintain the required percentage of seats for which the reserved categories are entitled in view of the hike in the number of seats, and the same is in accordance with the guidelines issued by the Union of India in Office Memoranda dated 17.01.2019 and proceedings dated 29.01.2019, referred to supra. Clause 2(d) of the Office Memorandum vide F.No.12-4/2019-UI dated 17.01.2019, issued by the Ministry of Human Resources Development, Department of Higher Education, Government of India and proceedings F.No.V.11025/10/2019-MEP dated 29.01.2019 of the Ministry of Health and Family Welfare, Medical Education Policy, Government of India, mandate that at any stage of implementation of EWS reservations, the number and percentage of seats provided for SC/ST/OBC shall not be reduced.
11. Having regard to the object sought to be achieved and the intention in terms of the above said proceedings and the memorandum, the stand taken by the respondents, in the considered opinion of this Court, cannot be faulted. In fact, a 14 AVSS,J & CMR,J WP No.11583_2019 & Batch counter affidavit deposed by the Registrar of the respondent- University is filed. Paragraph No.3 of the said counter affidavit reads as follows:
"I respectfully submit that the provision of reservation of 10% for EWS category is strictly being complied with by the University and no further reservations are granted in respect thereof. The data of sanctioned seats and the increase in the approved seats is in compliance with the guidelines issued by the Medical Council of India, whereby in order to accommodate the EWS category students, a corresponding increase in the seats meant for Reserved Categories was also mandated so as to maintain the balance of percentages in reservations. The number of seats enhanced in respect of each of the Colleges filed at Page-15 of the material papers is only in accordance with the said principle contained in the guidelines issued by the Medical Council of India as well as the office memorandum dated 17.01.2019 issued by the Government of India, Ministry of Human Resource Development and Communication dated 29.01.2019 issued by the Ministry of Health and Family Welfare, Union of India. The roster of seats prepared by the 3rd Respondent filed at Page-18 is in strict compliance thereof. I crave leave of this Hon'ble Court to file such other additional affidavits as may be necessary in the interest of justice. I submit that the 3rd Respondent undertakes to comply with the procedure and parameters indicated in G.O.Ms.No.39, dated 30.07.2019 issued by the Government of Andhra Pradesh in 15 AVSS,J & CMR,J WP No.11583_2019 & Batch implementation of the provisions of 10-3rd Amendment to the Constitution."
12. A note prepared by Sri Vivek Chandrasekhar, is placed before this Court on 29.08.2019, furnishing the following particulars:
"Pursuant to the communication of the MCI to the State Govt., requesting the State Govt. to indicate the total number of existing seats against which the EWS quota scheme is to be implemented, the State Govt. submitted a list of 12 Govt. Colleges with a total existing intake of 2000 seats.
The MCI, after considering the list provided by the State Govt., decided to enhance the seats in only 10 Govt. Colleges with an existing intake of 1700 seats.
Calculation for the purpose of implementing the EWS Quota Scheme: -
Total existing seats in 10 Govt. Medical Colleges = 1700 seats.
After excluding 15% towards All India Quota, the total seats under the State Quota remain at 1445 seats.
In the existing system, 50% of the seats are allotted to Reserved category and 50% of the seats are allotted to un-reserved category. Therefore, out of 1445 seats - 723 seats are allocated towards reserved category and 722 seats are allocated to the reserved category.16
AVSS,J & CMR,J WP No.11583_2019 & Batch EWS scheme is to be implemented against the 1445 seats under the State Quota in Govt. Medical Colleges.
25% increase in 1445 seats = 361.25.
The MCI increases seats in multiples of 10, 25 and 50. Therefore, 361.25 is rounded off to 360 seats.
Total number of seats now available under the State quota is 1445 + 360 = 1805.
10 Govt. colleges, therefore, have 1805 seats after increasing the seats to implement the EWS Quota Scheme.
Total Seats - 1805.
50% seats towards existing reserved category - 902.5 seats 10% seats towards EWS quota - 180.5 seats Absolute number of existing un-reserved category - 722 seats ____________ 1805 seats ____________
13. It is the submission of the learned counsel for the petitioner in W.P. No.11704 of 2019, Sri K.S.Murthy, that the figures mentioned in Annexure-II attached to guidelines issued by the Board of Governors in supersession of Medical Council of India, vide proceedings No.MCI-34(41)(EWS)/2019-Med./122349 dated 04.06.2019, are not tallying with the particulars of allotment of MBBS seats under 10% EWS quota for 2019-20, as such, the 17 AVSS,J & CMR,J WP No.11583_2019 & Batch respondent-authorities erroneously sanctioned less number of seats.
14. On the other hand, it is submitted by the learned Standing Counsel for Medical Council of India, Sri Vivek Chandrasekhar, that Annexure-I I attached to the guidelines is only illustrative in nature and the percentage of reservations varies from State to State, and in the instant case, the exercise was undertaken by the respondents herein, strictly in accordance with the guidelines issued by the Union of India, vide Office Memorandum F.No.20013/01/2018-BC-II dated 17.01.2019 and the proceedings F.No.V.11025/10/2019-MEP dated 29.01.2019, and by any stretch of imagination, it cannot be faulted. It is the further submission of the learned Standing Counsel that strictly in accordance with the constitutional mandate, i.e., 103rd Constitutional Amendment Act, 2019, the authorities are allotting the seats under EWS quota.
15. In view of the said explanation offered by the Medical Council of India, the contention contra advanced by the learned counsel for the petitioner in W.P. No.11704 of 2019 stands rejected. Before parting with the matter, it is needless to observe that the respondent-authorities shall act strictly in accordance with the object and intention behind the 103rd Constitutional Amendment Act, 2019.
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AVSS,J & CMR,J WP No.11583_2019 & Batch
16. Therefore, this Court is of the definite opinion that the contentions sought to be pressed into service by the learned counsel for the writ petitioners are devoid of any foundation and accordingly, the same are rejected.
17. For the aforesaid reasons, all the Writ Petitions are dismissed. There shall be no order as to costs.
As a sequel, miscellaneous petitions, if any pending in this case, shall stand closed.
____________________ A.V.SESHA SAI, J _________________________________________ CHEEKATI MANAVENDRANATH ROY, J Date: 06.09.2019 Note: LR copy to be marked siva 19 AVSS,J & CMR,J WP No.11583_2019 & Batch THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY WRIT PETITION Nos. 11583 OF 2019, 11656 OF 2019, 11704 OF 2019, 12006 OF 2019 AND 12106 OF 2019 Date: 06.09.2019 siva