KANNAN NARAYANAN Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The petitioner seeks a writ of certiorari to quash R.7 of the Andhra pradesh Regulation of Admission of Students into Medical Colleges Govt. Dental College Rules, 1983 (for short he Admission Rules as unconstitutional and void being violative of Art. 14 of the Constitution and also to quash the Memorandum No. BST/ENT/84 dated 19-7-1984 issued by the Principal, Osmania Medical College, Hyderabad informing the petitioner that he is not eligible to sit for M.B.B.S. Entrance Examination for the year 1984-85, as he does not belong to Andhra Pradesh. Learned counsel for the petitioner, during the course of the arguments, however, confined the objections only to the validity of R.7 (9) of the Admission Rules and did not contend that the provisions contained in R.7 other than in sub-rule (9) were unconstitutional. It is, therefore, necessary to examine how far R.7 (9) of the Admission Rules is violative of Art. 14 of he Constitution, as contended by the petitioner. In order to appreciate the contention, it is necessary to briefly set out the historical back ground.

(2.) By S.3 of the Constitution (Thirty- Second Amendment) Act 1973, Art. 371-D was introduced with effect from 1-7-1974. The provisions in Art. 371-D were directed towards making special provision with respect to the State of Andhra Pradesh in the matter of public employment and in the matter of education having regard to he requirements of the State as a whole for equitable opportunities and facilities for the people belonging to different parts of the State. Art. 371-D (1) confers power on the President to make an order for the above purpose. Art. 371-D (2) specifies the matters which can form the subject-matter of the order which may be passed by the President. It is provided inter alia that the order of the President may specify any part or parts of the State which shall be regarded as the local area for the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government. It is also provided inter alia that the order may specify the extent to which, the manner in which and the conditions subject to which, preference shall be given or made in the matter of admission to any such University or other educational institution referred to in sub-cl. (b) of Art. 371(d) (2) to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such university or other educational institution. In ex4rcise of the above power, the president of India made with respect to the State of Andhra Pradesh an order called "The Andhra pradesh Educational Institutions (Regulation of Admissions) Order, 1974" (hereinafter referred to as the presidential Order). Under the presidential order, the State of Andhra pradesh is divided into three parts. The first part may be popularly called the area consisting of the Circar Districts, the second part consisting of the districts in the Telangana area and the third part consisting of the district in the Rayalaseema area. The first part relating to Circar Districts comprised of the Andhra University and Nagarjuna University the second part comprising the Telangana area included the Osmania university and the Kakatiya University and the third part relating to Rayalaseema area included Sri Benkateswara university. The State is thus divided into three local areas. Paragraph 4 of the presidential order deals with the local candidates for admission to any course of study in relation to a local area and sets out the requirements for eligibility to admission in each particular local area. Suffice it for the present purpose to state that the eligibility is determining (determined) with reference to he residential qualification in the local area of the candidate seeking admission to any course of study. Paragraph 6 of the presidential order specifies reservation in State wise universities and Statewide educational institutions. Admissions to eighty five per of the available seats in every course of study provided by a Statewide University or a Statewide educational institution shall be reserved in favour of and allocated amongst the local candidates in relation to the local areas specified above. The proportion in which the available seats shall be allocated among the three local areas is also mentioned. The Presidential Order does not specify as to how the balance of fifteen per cent of the available seats shall be filled in. Paragraph 9 of the presidential Order provides that the provisions of the Order shall have effect hot withstanding anything contained in any statute, ordinance, rule regulation or other order (whether made before or after the commencement of this order) in respect of admission to any university or to any other educational institution subject to the control of the State Government. Paragraph 10 of the presidential Order provides that nothing in the order shall affect the operation of any provisions made by he State Government or other competent authority in respect of reservations in the matter of admission to any unversity or other educational institution in favour of women, socially, educationally backward classes of citizens, the Scheduled Castes and the Scheduled Tribes in so far as such provisions are not inconsistent with the order. On a brief survey of the above provisions, it would be seen that provision is made by the presidential order for filling in the available seats in every course of study in each local area by he local candidates and it is obligatory that eight-five per cent of the available seats shall be filled in by the Local candidates in relation to each local area.

(3.) In the implementation of the Presidential Order, doubts seem to have arisen as to how the balance of fifteen per cent of the available seats should be filled in. it was thought that the balance of fifteen per cent of the seats were reserved only for non-local candidates and consequently, local candidates, who are unable to secure admission in the reserved quota of eighty five per cent, could not be considered against the balance of fifteen per cent of the seats reserved for anon local candidates. In other words, it was thought that the balance of fifteen percent of the seats were reserved only for non-local candidates. This aspect came to be considered by a Division Bench of this Court in Pampapathi Reddy v. Government of Andhra pradesh (1977) 1 Andh WR 224. After examining the provisions of the presidential order this court held that as per the presidential order the balance of fifteen per cent of the seats were left open. Nothing was mentioned in the Presidential order specifically to show that no local candidates could be admitted in the balance of fifteen per cent of the seats. This court also held that it could not be said that the balance of fifteen per cent of seats were reserved only for non-local candidates when the presidential order does not specifically mention anything with regard to the reservation of fifteen per cent of the seats for non-local candidates. After the above judgment of this court, the Government of Andhra Pradesh issued G.O.P. No. 646, Education (W) Department, dated 10/07/1979. In paragraph 11 of the said G.O. a clarification was given as to who should be considered eligible to apply as candidates belonging to the State of Andhra pradesh for the purpose of admission to courses of studies offered by the educational institutions, subject to the control of the State Government, against the fifteen percent of the available seats kept unreserved in terms of the presidential Order. It is relevant to note that the clarification is given on the basis that the candidates, who are eligible for consideration against the fifteen per cent of the available seats must belong to the State of Andhra pradesh. On the aforesaid basis, the Government specified that the following categories of candidates belonging to the State of Andhra pradesh could be considered for admission against the fifteen per cent of the available seats kept unreserved in terms of he presidential Order: "(i) All local candidates defined in the Presidential Order. (ii) Candidates who have resided in the State for a total period of ten years excluding periods of study outside the State; or either of whose parents have resided in the State for a total period of ten years excluding periods of employment outside the State. (iii) Candidates who are children of parents who are in the employment of this State or Central Government, Public Sector Corporations, Local Bodies, Universities and other similar quasi public institutions within the State; and (iv) Candidates who are spouses of those in the employment of this state or Central Government, Public Sector Corporation, Local Bodies, Universities and educational institutions recognised by he Government a University or other competent authority and similar other quasi-Govt., institutions within he State." Having referred to the above provisions, which are relevant for the purpose I may now refer to the Andhra Pradesh Educational Institutions (Regulation of Admission and prohibition of Capitation Fee) Act 1983 (Andhra Pradesh Act No. 5 of 1983) (hereinafter referred to as "the said Act"). S.3 of the said Act contains provisions regulating admission of candidates into educational institution. It specifies that, subject to such rules as may be made in that behalf, admission into educational institutions shall be made either on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test conducted by such authority and in such manner as may be prescribed. There is a proviso to this section stating that admission into Medical and Engineering Colleges shall be made only on the basis of the ranking assigned in the commission entrance test conducted as aforesaid. S.15 (1) of the said Act confers power on the Government to make rules, by notification, for carrying out all or any of the purposes of the said Act. In exercise of the powers conferred by S.3 read with sub-sec. (1) of S.15 of the said Act, a notification was issued by the Government in G.O. Ms. No. 351, M. & H. dated 10/06/1983 as amended in G.O. Ms. No. 502 M & H. dated 14/06/1984. Reference to the rules made by the above notification has already been made earlier and these rules govern the admission of candidates inter alia into Medical Colleges in the State of Andhra pradesh in the aforesaid local areas. A total number of 920 seats were provided for the eight colleges situate within the three local areas referred to above. In addition to those 920 seats, eight additional seats were also created for reciprocal admission of candidates from other States and vice versa and reciprocal admissions are regulated as per the orders issued in G.O. Ms. No. 508, Medical & Health, dated 27/07/1979. It may also be mentioned that, out of 920 seats, 12 seats are reserved for the candidates nominated by the Government of India. It is enough to state that the Government of India can nominate candidates against these 12 seats irrespective of the fact whether such candidates reside in the state of Andhra pradesh or elsewhere. The rule does not purport to reserve seats by way of nomination by the Government of India for candidates residing outside the State of Andhra pradesh. R.7 of the Admission Rules, which is relevant for consideration in the present writ petition deals with the reservation in favour of local candidates. Admission of eighty-five per cent of the seats in the First Year M.B.B.S Course is regulated by various provisions in this rule, with which we are not concerned. There is no dispute regarding the reservation of the eighty five per cent of the available seats of the local candidates in the three local areas specified above pursuant to the Presidential Order. Sub-rule (9) of R.7, which is attacked in the present writ petition as unconstitutional, being violative of Art. 14 of the Constitution, deals with the admission of the candidates to the remaining fifteen per cent of the unreserved seats. I have earlier referred to the order of the State Government in G.O. P No. 646 dated the 10/07/1979 and to the guidelines mentioned in paragraph 11 of the said G.O. regarding the admission of the candidates against the fifteen per cent unreserved quota. I have also pointed out that the basis of admission against the fifteen per cent unreserved quota was that the candidates must belong to the State of Andhra Pradesh. The four categories of persons specified in paragraph 11 are now statutorily recognised in R. 7(9) of the Admission Rules. Since this is under challenge, it would be appropriate to extract the rule. "R. 7(9) The Following categories of candidates are eligible to apply for admission to the remaining 15% of unreserved seats; (a) All candidates defined under rule 7(4) and 7(6) (Study certificate/residence certificates should be enclosed) (b) Candidates who have resided in the State for a total period of ten years excluding period of study outside the State or either of whose percents has resided in the State for a period of ten years excluding periods of employment outside the State; (certificate to the effect from Revenue Official not below the rank of Tahsildar or Deputy Tahsildar/ in case of independent sub-taluk from where the candidate is claiming eligibility should be enclosed.) (c) Candidates who are children of parents who are in the employment of this State or Central Government Public Sector Corporation, Local Bodies, universities and other similar quasi-public Institution within the State (Certificate from the Head of the Institution/Department should be enclosed.) (d) Candidates who are spouses of those in the employment of the State or Central Government, Public Sector Corporations, Local Bodies, Universities and educational institutions recognised by the Government a University or other competent authority and similar other quasi-Government institutions within the State (Certificate from the Head of the institution/Department should be enclosed.) a reference to the categories of candidates specified against Cls. (a) (c) and (d) above referred would reveal that the categories referred to in paragraph 11 of the G.O.P. No. 646 dated the 10th day of July 1979 formed again the subject-matter of consideration. The category against cl. (a) refers to the local candidates with the result that the candidates residing in the State of Andhra pradesh, who have not been able to secure admission against the reserved quota of eighty-five per cent for the local candidates, are entitled to be considered against the fifteen per cent unreserved quota, Cls. (b), (c) and (d) would reveal that the basis followed is residence in the State of Andhra Pradesh of the candidates or the parents or both or the candidates who are spouses of those in the employment of the State. Basically, therefore, residence in the State of Andhra Pradesh is the qualification for consideration against the unreserved quota of fifteen per cent.