K ASHOK KUMAR Vs. UNIVERSITY OF HEALTH SEIENCES

JUDGEMENT

(1.) The controversy in the present writ petition is about the same seat in a Super-speciality in medicine which is the subject matter of the judgment of a Division Bench of this court in W.A. No. 1172/1987 dated 18-1-1988. The contention of the respondent-University then was that a person from outside the State was a non-local and, therefore, not entitled to claim the only seat in D.M. (Neurology) was upheld. Thereafter, the same seat has been given to a candidate who is not a local candidate with reference to the area where the Institution is located Now, the stand of the University is that it is not reserved for local candidate of the area. It is not in dispute that cl. (5) of the presidential order will apply to this case. To avoid further litigation and delay, particularly when the classes have started one month ago, I consider it appropriate that this writ petition be considered and decided by the same Bench consisting of Jeevan Reddy, J, and Panduranga Rao, J., which decided the earlier case. Place the papers before the Hon'ble the Chief Justice for posting of the writ petition as early as possible. Pursuant to the above order of reference this petition came on lor hearing before the Division Bench on 9-8-1988 and the Court delivered the following.

(2.) This writ petition relates to admission to a lone seat in Super Speciality, D.M. (Neurology), in Osmania Medical College for the year 1986-87. Earlier there was a writ petition and Writ Appeal with respect to this verv seat, and the ntain complaint in this writ petition is that the judgment in the earlier case is not being applied and followed by the respondents.

(3.) For the year 1986-87 applications were called for, for admission into Super Specialities, including D.M. (Neurology). The only seat in this Super Speciality was then notified as available in Nizam's Institute of Medical Sciences. In the Entrance Test conducted frr this Super Speciality, a number of persons appeared, among who one Dr. Fazal Ghafoor stood first. The 5th respondent in the writ petition, Dr. Venkata Sai Prabhakar, stood second, and the petitioner herein, Dr. K. Ashok Kumar, secured the 8th rank. In the normal course, Dr. Fazal Ghafoor ought to have been given admission; but, he was denied admission on the ground that he was not a 'local candidate' and, therefore, ineligible for admission in view of the A.P. Educational Institutions (Regulation of Admissions) Order, 1974, issued by the President of India under Clauses (1) and (2) of Article 371-D of the Constitution. Dr. Ghafoor wab bom in Kerala and had obtained hrs M.B.B.S., Degree from a College in Kerala. However, he obtained his Post Graduate Degree, i.e., M.D. (General Medicine) from Osmania Medical College in 1986. Inasmuch as Dr. Ghafoor did not satisfy any of the c riteria prescribed in Rule 4 of the said Older, defining "local candidate", he was denied admission, whereupon he approached this Court by way of Writ Petition No. 7137/87. It was heard by P. A. Choudary, J. and dismissed on 27-8-1987. The learned Judge held that the petitioner. Dr. Ghafoor, is not a local candidate and, therefore, admission was rightly denied to him. The learned Judge also repelled the argument of Dr. Ghafoor that inasmuch as he was allowed to appear for the Entrance Test and was also called for interview in pursuance thereof, the respondents were estopped from denying admission to him on the ground of not heing a local candidate. The learned Judge also rejected the contention thai reserving the only seat for local candidates offends Art. 14. 11 was pointed out by the learned Judge that the said reservation is not under Art. 15 (4) of the Constitution, but was made under the Presidential Order issued under Art. 371-D and is, therefore, beyond challenge. A Writ Appeal, being W.A. No. 1172/87, was filed by Dr. Ghafoor against the decision of the learned single Judge, which had come up before this very Bench. We dismissed the Writ Appeal confirming the opinion of the learned Judge on all the three grounds. In the said Writ Appeal, however, counsel tor the appellant had raised certain new grounds, not urged before the learned single Judge. Though we said that the grounds not urged before the learned single Judge cannot be allowed to be raised in Writ Appeal, yet i'or the sake of completeness we dealt with those conte ntions. They were : (i) since there is only one seat in D.M. (Neurology) in the entire State, located in an Institute situated in Hyderabad, it must be treated as a State-wide seat. The argument was based upon the proviso to Rule 6 of the Presidential Order, 1974. This argument was rejected and it was held that inasmuch as Nizam's Institute of Medical Sciences is situated in Telangana area, the Presidential Order, 1974 applies to it, and hence only a local candidate can be admitted to the said seat. (ii) By virtue of the proviso to Rule 5 of the Presidential Order, the only seat in the said Super Speciality must be deemed to be an 'unreserved' seat. In other words, the argument was that the said seat should not be reserved for local candidates but must be available for both 'local' and 'non-local' candidates. This argument also was rejected holding that the said proviso does not say, and cannot be construed as saying that the said seat is not reserved for local candidates. (iii) The Nizam's Institute of Medical Sciences, affiliated to the University of Health Sciences, must be treated to be State-wide educational institution. This argument too was rejected with reference to the Schedule to the Preside ntial Order.