* THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY + WRIT PETITION NO : 14394 of 2005 % 26-07-2005 # Dr.V.V.Sai Naresh and another .. PETITIONERS VS. $ Union of India and others ..RESPONDENTS ! COUNSEL FOR PETITIONER: Sri.Nooty Rama Mohana Rao ^ COUNSEL FOR THE RESPONDENT No.1: Mr.Ratna Reddy, Assistant Solicitor General for Central Government. COUNSEL FOR THE RESPONDENT NOS.2 to 3: G.P. for Health, Medical and Family Welfare. COUNSEL FOR THE RESPONDENT NO.4: Sri.Nagarjuna Babu, Standing Counsel for N.T.R.University of Health Sciences, Vijayawada. COUNSEL FOR THE RESPONDENT NO. 5 and 6: Smt.Y.Padmavathi. COUNSEL FOR THE RESPONDENT NOS.7 & 8: Sri.D.Prakash Reddy. < Gist: > Head Note: ? CITATIONS: 1. 2002 SCC (7) 258 2. AIR 1991 AP 1 3. AIR 1989 SC 1642 4. 1988(2) ALT 463 THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY W.P.NO.14394 of 2005 O R D E R : 1. For the academic year 2005-2006, entrance examination for Super Speciality (2nd Post Graduate) Courses was held on 29-5-2005 by the University of Health Sciences, which was constituted under the Andhra Pradesh University of Health Sciences Act, 1986. In the notification issued by the University of Health Sciences, the conditions for admission to the super speciality (Second PG) Courses in the medical colleges for the said academic year were laid down; the seats in each of the super speciality were also specified along with the college or institute where they are available. Prospectus for admission to Super Speciality ( 2nd PG) Courses indicated the seats available under non-state wide and the seats available under the State Wide. Dr.J.A.L.Ranganath-petitioner No.1 did his MBBS (1st degree) from Adichunchanagiri Institute of Medical Sciences (AIMS) Bellur, University of Mysore, Karnataka and MD (General Medicine) from Kasturiba Medical College (KMC) Mangalore, Karnataka state. Dr. Y. Pavan Kumar Reddy- Petitioner No.2 did his M.B.B.S. (1st decree) and M.D( General Medicine) from Kurnool Medical College. Both the petitioners took entrance examination for Super Speciality (2nd P G) Courses. The 1st petitioner secured 2nd rank over all for admission to D.M. (Nephrology) Course and the 2nd petitioner secured 5th rank over all and 1st rank amongst Sri.Venkateswara University Local candidates for admission to D.M. (Gastroenterology) Course. In D.M. (Nephrology) Course, there are three seats available, one each in Osmania Medical College, Gandhi Medical College and Andhra Medical College respectively. As per the notification, seats available at Gadhi Medical College and Andhra Medical College are indicated as non-State wide seats. For DM. (Gastroentrology) course, 4 seats are available and two of them are provided in Osmania Medical College and one each in Gandhi Medical College and Andhra Medical College. The seats available in D.M. (Gastroentrology) course in Gandhi Medical College are shown as non-state wide seats. For D.M. (Gastroentrology) course, 1st and 2nd and 4th ranks have been secured by the candidates belonging to the Osmania University local area. The 3rd rank has been secured by the candidate belonging to Andhra University local area. The Government of Andhra Pradesh exercising the power under Section 3 read with Section 15(1) of Andhra Pradesh Educational Institutions/Regulations of Admissions and Prohibition of Capitation fee Act, 1983 (AP Act,1983) amended the admission rules to the Super speciality Courses in the Medical Colleges. The amendment was notified on 28-7-2003. The same was got published through G.O.Ms. No.409 Health, Medical and Family welfare (E2 Department dated 24-7-2003). Through this amendment, sub-rule 1 is added to Rule 3 of Andhra Pradesh Regulation of Admission to Super Specialties in the Medical College Rules, 1983 and it reads as follows: “3(1) As super specialty courses are having scarce seats and are unevenly disturbed, all the super Specialty Courses in this State are treated as State-Wide Courses until further orders.” 2. The State Government has taken up the issue relating to the inclusion of the newly sanctioned Super Specialty courses in the schedule to the Presidential Order. The Government of India rejected the proposal of the State Government and communicated the same on 27-6-2005. The decision conveyed by the Government of India, Ministry of Home affairs to the Additional Secretary to Government Health Medical and Family Welfare Department, Andhra Pradesh Secretariat, Hyderabad read as follows: “I am directed to refer to your letter Nos.69822/SPF A3/2004-3 dated 8-6- 2004, 10-11-2004 and No.13869/E2/2003-17 dated 9-6-2005 on the subject mentioned above and to say that the proposal of the State Government cannot be acceded to as according to available information at present the total number of seats available in the State in the Super Speciality Courses proposed, do not exceed three provisions of paragraph 6(1) and (2) of the Andhra Pradesh Public Employment Andhra Pradesh Educational Institutions ( Regulation of Admissions) Order 1974, therefore, cannot be applied in respect of the above proposal.” 3. The petitioners have filed the writ petition assailing the action of the NTR University of Health and Medical Sciences Vijawada-4th respondent in notifying 9 seats as non-State wide seats and also the action of the Union of India in rejecting the proposals of the State Government for inclusion of these Super Specialty Courses as State Wide Courses in the schedule to Presidential Order. 4. To complete the narration of facts, the reliefs claimed by the petitioners in the writ petition need to be noted and they are: a. Declare the decision and order communicated by the 1st respondent herein through its File No.21013/3/2004-SR, dated 27-06-2005 as unconstitutional; b. Consequently, direct the respondents to treat and consider all the seats of Super-specialty courses available in the various Medical Institutions in the State of A.P. as “State-wide Courses” and regulate admission process thereof accordingly; c. Declare that the 4th respondent is bound by the rules and amendments carried out by the Governor of A.P. through the admission to Super-speciality in Medical Colleges Rules, 1983 and in particular, the amendment brought about and notified through G.O.Ms.No.409, Health, Medical and Family Welfare Department (E-2) Department, dated 24-07-2003 and accordingly, regulate the admission process into Super specialty Courses for the academic year 2005-06; d. Direct the 1st respondent to fix the responsibility and accountability for the inordinate delay in processing the file initiated pursuant to the proposal submitted by the State of A.P. in their letter No.69822/SPF/A3/2004, dated 08-06-2004 and communicate the action taken to this Hon’ble Court; e. Direct the 2nd respondent to hold the NTR University of Health Sciences, Vijayawada as responsible and accountable for the breach of the rules committed by it in particular, by not notifying the amended rule brought about through G.O.Ms.No.409, dated 24/07/2003 while issuing the prospectus relating to admission process for the academic year 2005-06 and place on record the action taken against the officials of the 4th respondent University in this regard and pass such order or further orders as are deemed fit and proper in the circumstances of the case.” 5. The 4th respondent-University filed counter affidavit. It is stated in para 7 of the counter affidavit that the prospectus issued by the University is directly in consonance with the Presidential order, the rules framed by the State Government and orders of this Court in W.P.No.15594 of 2003 and W.P.No.10375 of 2004. I deem it appropriate to refer paragraphs 7 and 8 of the counter affidavit of 4th respondent-University and they are thus: “ 7. In reply to para-10, I submit that the prospectus issued by the University is directly in consonance with the Presidential Order, the Rules framed by the State Government and orders of this Honorable Court mentioned above. It is incorrect on the part of the petitioners to state that the University had ignored the amendment brought in by the State Government. In the preceding paragraphs, it is explained as to why the University is obligated to treat the enhanced seats as non-state-wide seats. Further in the writ affidavit it is mentioned that the University has announced 16 seats out 32 seats as non-state-wide seats, which is factually incorrect as could be seen from the notification of the University, out of 32 seats in various super specialty courses, 9 seats are treated as non- state-wide seats due to the reasons set forth in preceding paragraphs. It is true that the University received the representation from the 1st petitioner, but in view of the pendency of the proposal sent by the State Government to the Central Government for inclusion of enhanced seats in the scheduled to the Presidential Order, the University had no choice to take any decision in the matter and it is incompetent to do so. 8. In reply to para-11, I submit that all the arguments made in this paragraph pertains to the State Government’s proposal and the rejection of the said proposal by the Central Government and this respondent has no comments on the said averments.” 6. Respondents 5 and 6 came on record as per the orders in WPMP.No.19074 of 2005. The 5th respondent claims that he secured 7th rank in over all and first rank in amongst Andhra University local area candidates for a seat in DN(Nephrology). 6th respondent claims that he secured 3rd rank in over all and first rank in amongst Andhra University local area candidates for a seat in DM(Neurology). Respondents 7 and 8 came on record as per the orders in WPMP.No.20073 of 2005. 7th respondent claims that he secured fourth rank for a seat in DM(Gastroentrology). 8th respondent claims that he secured fourth rank in over all and first rank amongst Andhra University area for seats in DM(Endocrinology). The counters of respondents 5 to 8 is almost similar to the counter affidavit filed by 4th respondent- University. 7. Heard Sri.Nuty Rammohan Rao, learned counsel appearing for the petitioners, Sri.D.Prakash Reddy, learned senior counsel appearing for respondents 7 and 8, Smt.Y.Padmavathi, learned counsel appearing for respondents 5 and 6, Sri.Nagarjuna Babu, learned Standing Counsel appearing for 4th respondent- University and Mr.Ratna Reddy, Assistant Solicitor General appearing for 1st respondent-Union of India. 8. Learned counsel appearing for the petitioners submits that issuing notification by the 4th respondent-University treating nine seats as non-state-wide seats is contrary to the Government G.O.Ms.No.409, dated 24.7.2003. He further submits that the State Government has rightly pointed out in its letter dated 8.6.2004 that the super- specialty courses are very scarce and unevenly distributed among all the three regions in the State and requested the Government of India to treat the Additional super-specialty courses in the State as state-wide-courses. In elaborating his arguments he refers to the provisions of Presidential Order, A.P. Educational Institutions/Regulations of Admissions and Prohibition of Capitation Fee Act, 1983 and Andhra Pradesh (Regulation) Admission to Super-Speciality courses in Medical Colleges rules, 1983. His further submission is that rejection of the proposal of the State Government by the Ministry of Home Affairs is the result of total non- application and abdication of mind to the issue on hand. He refers the total number of seats available in M.Ch. (Genito Unrinary Surgery), MCh. (Neuro Surgery), M.Ch. (Paediatric Surgery) and DM(Gastroenterology) to convince the court that the reason mentioned for rejection of the proposal by Government of India is apparently unsustainable. He would further contend that the petitioners by letter dated 6.5.2005 brought to the notice of 4th respondent University about the G.O.Ms.No.409 whereunder 9 additional seats in superspecialty courses as state-wide courses but the 4th respondent-University did not choose to correct itself and not even replied to the petitioners. 9. Sri.Ratna Reddy, learned Assistant Solicitor General appearing for 1st respondent-Government of India on the basis of instructions received by fax from the Ministry of Home Affairs, Government of India, submits that the total number of seats available in the State in each of the Super Speciality courses, except in one course mentioned in the proposal of the State Government of Andhra Pradesh does not exceed three and therefore the Government of India is justified in rejecting the proposal. 10. Sri.D.Prakash Reddy, learned Senior Counsel appearing for respondents 7 and 8 submits that 4th respondent-university is justified in issuing notification indicating 9 seats as non-state-wide seats in view of the fact that the proposal sent by the Government for inclusion of the new seats in the schedule to the Presidential Order is not acceded. He also submits that the additional seats granted under various government orders are to be treated as non-state-wide seats since they are not included in the schedule to the Presidential Order. 11. Learned Standing Counsel appearing for 4th respondent-University submits that 4th respondent-University is justified in issuing notification treating 9 seats as non- state-wide seats in view of the orders passed by this court in W.P.No.15594 of 2003 and W.P.No.10375 of 2004 and also because of non-inclusion of those seats in the schedule to the Presidential Order. 12. Smt.Y.Padmavathi, learned counsel appearing for respondents 5 and 6 submits that the schedule fixed by the University cannot be interdicted in view of the decision of the Supreme Court in MEDICAL COUNCIL OF INDIA v. MADHU SINGH. She would further contend that if the admissions are not completed as per the schedule there is every possibility of the students losing the academic year. 13. Before dwelling on the rival contentions of the parties, it would be useful to remind us of the historical background in which Article 371 D came to be inserted in the Constitution and the presidential order came to be made. The Erstwhile State of Hyderabad comprised of three linguistic regions called Telangana, Maratwada and Karnataka. After re-organisation of the States in 1956, the Martwada region formed part of Maharashtra State; the Karnataka region formed part of Karnatka State and the Telangana region became part of the State of Andhra Pradesh. At the time of formation of Andhra Pradesh, certain safeguards were envisaged for the Telengana area in the matter of development and in the matter of employment opportunities and the educational facilities. Various steps taken to give effect to the assurances and the safeguards could not yield the desired results; on the contrary they gave cause for dissatisfaction sometimes in Telangana area and some times in the other areas of the State, which led to public agitations and disruption of normal life in the State. The leaders of the Andhra Pradesh State made concerted efforts to analyse the factors giving rise to the dissatisfaction and evolved a formula with a view to achieving fuller emotional integration of the people of Andhra Pradesh; for promoting accelerated development of the backward areas of the State and for providing equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public services. This formula is commonly known as six point formula. To give effect to this formula, a Bill was introduced in the Parliament for enacting the Constitution (32nd Amendment) Act, 1972. By this Act, Articles 371 D and 371 E were inserted in part XXI of the Constitution. 14. Clause (1) of Article 371 D empowers the President to make an order and having regard to the requirements of the State as a whole, to provide equitable opportunities and facilities for the people belonging to different parts of the State in the matter of public employment and in the matter of education. It is, inter alia, particularised in Clause 2 thereof that the President may specify in his order any part or parts of the State which shall be regarded as the local area for the purpose of admission to any University within the State or to any other educational institution which is subject to the control of the State Government and also specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made 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 educational institution, in the matter of admission to any such University or other educational institution. In exercise of power conferred under clauses 1 and 2 of the Article 371 D, the President issued The Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 (referred to as the ‘Presidential Order’) on July 3, 1974 which came into force from July 1,1974. Paragraph 2 of the Presidential Order defines the expressions used therein. Paragraph 3 specifies the local area for purposes of admission to the Universities and the educational institutions other than State-wide University or state-wide educational institution. The State is divided into three local areas for the purpose of admission to various courses offered in the Universities or other educational institutions subject to the control of the State Government. They are : (1) Andhra University local area; (2) Osmania University local area; and (3) Sri Venkateswara University local area. The Universities and the educational institutions subject to the control of the State Government are divided into two categories, viz., (1) State-wide Universities and educational institutions and (2) non-State-wide Universities and educational institutions. The expression ‘local candidates’ is defined for purposes of admission to any course of study in relation to a local area in para 4. Paras 5 and 6 of the Presidential Order deal with reservation of seats for local candidates in non-State-wide Universities and educational institutions and State-wide Universities and educational institutions respectively. The expression ‘State-wide University’ is defined in para 2 (f) of the Order and the expression ‘State-wide educational institution’ is defined in para 2(e) and such institutions are specified in the schedule to the Presidential Order. The paragraph 8 empowers the President to require the State Government to issue directions. Overriding effect is given to the provisions of the Presidential Order over any statute, ordinance, rule or regulation in respect of admissions to any University or to any other educational institutions which are subject to control of the State Government by paragraph 9. Paragraph 10 declares that the provisions of the Presidential Order shall not affect the operation of reservations in favour of women, socially and educationally backward classes, etc., and scheduled castes and scheduled tribes insofar as they are not inconsistent with the Order. The following schools/courses” (a) primary or secondary school, (b) correspondence courses provided by any other University or other educational institution and (c) part-time courses of study provided by any other University or other educational institutions for the benefit of the employed persons, are excluded from the operation of the Presidential Order by paragraph 11. 15. The Presidential Order as has been noticed above divided the State into three local areas; and the Universities and Educational institutions subject to the control of the State Government into two categories, State-wide Universities and Educational institutions and non-State-wide Universities and educational institutions. In regard to the non-State-wide Universities and Educational universities subject to the control of the State Government, paragraphs 5 of the presidential order, reserves 85% of the seats in each local area for the local candidates and sets apart 15% as unreserved. In regard to the State-wide Universities and the Educational institutions subject to the control of the State Government, which have been specified in schedule-II of the Order, 85% of the available sets in such universities or educational institutions, are reserved in favour of the local candidates of each of the local areas at the ratio of 42:36:22 respectively. 16. The question whether the Presidential Order is violative of Article 371 D of the Constitution fell for consideration before the Division Bench of this Court in B.RAMESH V. UNIVERSITY OF HEALTH SCIENCES, VIJAYAWADA.. The Bench negatived the contention that the Presidential Order is violative of Article 371 D. Article 371 D (1) of the Constitution reads as follows: “The provision of the Article under any order of the President thereunder shall have the effect not withstanding anything other than the provision of this Constitution or any other law for the time being in force.” It is explicit from the above referred clause that the provisions of Article 371 D and the Presidential Order are insulated from the attack or challenge based on any other provisions of the Constitution or any other law for the time being in force. Paragraph 9 of the Presidential Order also gives overriding effect to the provisions of the Order over any Statute-cum-Ordinance, rule regulation or any other order in respect of the admission into any university or any educational institutions subject to the control of the State Government. 17. The Government of A.P. has issued “Andhra Pradesh (Regulation of Admissions to Super Speciality Courses in the Medical Colleges) Rules, 1983 contained in G.O.Ms.no.740 dated 22-11-1983. They are statutory rules issued under section 15 of the A.P. Educational Institutions (Regulation of Admissions and Prohibition of capitation fees), Act 1983. 18. The Government of Andhra Pradesh by G.O.Ms.No.3 Medical and health Medical Department dated 6-1-2003, G.O.Ms.No.10 Health Medical and Family Department dated 22-1-2003, G.O.Ms.No.125 Health and Medical Family Welfare Department dated 22-4-2003 and G.O.Ms.No.232, Health, Medical and Family Welfare (E2) Department dated 31.7.2004 sanctioned 9 seats in various super specialty courses. 19. The 4th respondent N.T.R. University Health Sciences issued notification on 25- 04-2005 for admission to Super Specialty Courses for the academic year 2005- 2006. The notification relates to 32 seats. Among them, 23 are indicated as statewide seats and 9 are indicated as non-state-wide seats. 20. When the Government of Andhra Pradesh issued G.O.Ms.No.409 Health, Medical and Family Welfare (E-2) Department on 24-7-2003 by adding Rule 3(1) to the rules, two writ petitions came to be filed. The Writ Petition No.15594 of 2003 was filed by Dr.A.Kavitha and Dr.K.Ravishankar assailing G.O.Ms.No.409, Health, Medical and Family Welfare (E-2) Department dated 24-7-2003. The said writ petition came to be allowed on 5-9-2003. It is observed in the said writ petition as follows: “ It is clear from the above aspect and also the fact that all the 23 seats, which were filled up on 10-07-2003, belong to the Statewide seats and the rest being not included in the said Schedule, shall have to be treated as Non-Statewide seats.” 21. The writ petition No.10375 of 2004 came to be filed by Dr. B.Gowri Shankar and two others questioning the action of the N.T.R. University of Health Sciences in notifying 8 seats in various Super Specialty Courses as non-state-wide seats for the academic year 2004-2005. The said writ petition is ended in dismissal on 28-7- 2004. It is observed in the said writ petition that since the Central Government has not approved the proposed amendment to the presidential Order with regard to 8 super specialty seats, the University has no option except to fill the said seats treating them as non-Statewide. I deem it appropriate to refer the relevant portion of the order passed in the said writ petition and it is thus: “ The learned Counsel for the petitioner contends that the counseling for the above seats was held on 23-7-2004 and only the 1st petitioner, who obtained first rank in the state wide is entitled to admission into D.M.(Endocrinology) treated one seat as State wide. The other petitioners are not successful and he is not claiming for any relief on their behalf except one seat above. On the other hand, the learned the learned Government pleader for M and H and also University Standing Counsel for N.T.R. University contends that unless & until the Presidential Order is suitably and strictly amended, including 8 Super Specialty seats as State-wide seats does not arise, University has no option except to admit the students treated them as non state-wide seats. Admittedly, in the present case, the State Government has already addressed a letter to the Central Government. Meanwhile it could not obtain the necessary orders but failed in its attempt to get the Presidential Orders suitably amended. In view of the same, since limited seats are available, University cannot wait till the Presidential Order is suitably amended, and they have to finalize the admission within the time schedule prescribed by the Medical Counsel of India. In view of the same, the University has no option except to fill the said seats treating them as non-state-wide, and the impugned notification issued by the University