*THE HONOURABLE SRI JUSTICE V.V.S.RAO +WRIT PETITION Nos.20769 of 2003 and 8733 of 2004 %30-11-2004 W.P.No.20769 of 2003 # Dr.S.Sushma Kumari and others ..PETITIONERS Vs. $ State of Andhra Pradesh, rep. by its Principal Secretary to Govt., Education (Higher Education) Department, Secretariat, Saifabad, Hyderabad and others. ..RESPONDENTS W.P.No.8733 of 2004 # Dr. G. Rajani Kumar and others ..... PETITIONERS AND $ State of Andhra Pradesh, rep. by its Principal Secretary to Government, Education (Higher Education) Department, Secretariat, Hyderabad and others. …RESPONDENTS For both the writ petitions ! Counsel for the Petitioners: MR.NUTY RAM MOHAN RAO ^ Counsel for Respondent No.1: G.P. for Higher Education Counsel for Respondent No.2: G.P. for Medical, Health and Family Welfare Counsel for the Respondent Nos.3 and 4:Dr.Y.PADMAVATHI <GIST >HEAD NOTE: ?CASES REFERRED: 1. AIR 2003 SC 1947 2. Kept pending as per the directions of Hon’ble High Court 3. (2002) 7 SCC 258 = 2002 (6) Scale 332 4. (2002) 8 SCC 152 5. (2003) 4 SCC 276 6. (2003) 3 SCC 366 7. Though at the relevant time, the University purportedly followed the rule of reservation among SC-A, B, C and D categories, as per this Act, at present, this Act cannot be enforced by reason of recent judgment of the Constitution Bench of the Supreme Court declaring the said Act ultra vires. 8. AIR 1991 AP 194 9. 2002 (4) ALT 9 = 2002 (4) ALD 389 (FB) 10. AIR 1958 AP 129 11. AIR 1958 AP 569 12. AIR 1992 Bom 233 13. (1994) 4 SCC 401 14. (1995) 2 SCC 745 15. AIR 1996 SC 1378 = (1996) 3 SCC 253 16. Judgment in W.P.No.9541 of 2004, dt.14.10.2004. 17. The paragraphs referred to in the above principles relate to the paragraph in Annexure-IV to G.O.P.No.646, dt.10.7.1999. 18. AIR 1999 SC 2894 = (1999) 7 SCC 120 19. AIR 1981 SC 2045 20. AIR 1987 SC 400 = (1986) Supp.SCC 543 21. (1994) 4 SCC 401 = 1994 SCW 2515 22. This aspect of the matter is adverted to in the counter affidavit of respondents in W.P.No.8733 of 2004 23. FAIR 1988 SC 1875 24. AIR 1992 SC 932 25. 1993 Supp (2) SCC 71 26. (1998) 6 SCC 131 27. (1987) 4 SCC 459 28. (1990) 4 SCC 624 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF NOVEMBER TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION Nos.20769 of 2003 and 8733 of 2004 WRIT PETITION NO : 20769 of 2003 Between: Dr.S.Sushma Kumari, W/o. Late Sriramulu, R/o.8-3-9898/10/3, SBH Colony (Extn.), Srinagar Colony, Hyderabad. ..... PETITIONER AND 1 State of Andhra Pradesh, rep. by its Principal Secretary to Govt., Education (Higher Education) Dept.,Secretariat, Saifabad, Hyderabad. 2 State of Andhra Pradesh rep. by its Principal Secretary to Govt., Medical, Health & Family Welfare Dept., Secretariat, Hyderabad. 3 NTR University of Health Sciences, Vijayawada, rep. by its Registrar .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction; more particularly one in the nature of Writ of Mandamus: (a) By declaring the action of the respondents in seeking to fill the M.D.S.Orthodontia Course seat reserved for Backward Class-B category students with any non-local student as bad in law; (b) Consequently, direct the respondents to consider and grant admission to the writ petition herein in M.D.S.Orthodontia course, as the writ petitioner is the 1st rank holder amongst the BC-B local category candidates; (c) Direct the respondents to refrain from filing any of the seats in the M.D.S.orthodontia Course set apart for reserved category BC, SC and ST with non- local UR category students. Counsel for the Petitioner: MR.NUTY RAM MOHAN RAO Counsel for Respondent No.1: G.P. for Higher Education Counsel for Respondent No.2: G.P. for Medical, Health and Family Welfare Counsel for the Respondent No.3:Dr.Y.PADMAVATHI WRIT PETITION NO : 8733 of 2004 Between: 1 Dr. G. Rajani Kumar, S/o G. Sanyasi Naidu, R/o Hyderabad. 2 Dr. S. Sushma Kumari, D/o Sri Ramulu R/o Hyderabad. ..... PETITIONERS AND 1 State of Andhra Pradesh, rep. by its Principal Secretary to Government, Education (Higher Education) Department, Secretariat, Hyderabad. 2 State of Andhra Pradesh, rep. by its Principal Secretary to Government, Medical, Health & Family Welfare Department, Secretariat, Hyderabad. 3 NTR University of Health Sciences, Vijayawada, rep. by its Registrar. 4 The Selection Committee for admission into M.D.S, Course - 2003, NTR University of Health Sciences, Vijayawada, rep. by its Chairman. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction, more particularly, one in the nature of writ of Mandamus; a) By declaring the action of the respondents in filling up the UR segment seats in M.D.S. Course with backward class category candidate as arbitrary, illegal and violative of Article 14 of Constitution of India and also declare the action of the respondents in not filling up the seats in Osmania University region with backward class candidates as arbitrary, illegal and violative of Article 14 of Constitution of India, b) Direct the respondents to fill up the seats in M.D.S. Course with BC candidates in Osmania University region and also treat the rank holders No.1 and 2 as UR seats and fill up the resultant seats with next meritorious candidates in the merit list; c) Direct the respondents to consider the case of the petitioners for admission into M.D.S Course in any of the Specialties for the academic year 2003-04 by duly filling up the UR seats at the first instance and fill up the 85% of the seats with the petitioners. Counsel for the Petitioners: MR.NUTY RAM MOHAN RAO Counsel for Respondent No.1: G.P. for Higher Education Counsel for Respondent No.2: G.P. for Medical, Health and Family Welfare Counsel for the Respondent Nos.3 and 4:Dr.Y.PADMAVATHI The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION NO.20769 OF 2003 AND 8733 OF 2004 COMMON ORDER: Background of the case This common order shall dispose of both the Writ Petitions as common questions of fact and law arise for consideration. The fact of the matter as noticed hereunder is with reference to Writ Petition No.8733 of 2004, which is not much different from the other, except the context. The N.T.R. University of Health Sciences, third respondent, (hereafter called, the university) issued a notification on 9.6.2003 inviting applications for entrance test for admission to fourteen seats of Master of Dental Surgery (MDS) in Government Dental College, Hyderabad. The entrance test was conducted on 27.7.2003 and the results were announced on 11.8.2003. First petitioner, Dr.G.Rajni Kumar belongs to Backward Class D - Group. (B.C-D). He obtained rank 8 and second petitioner Dr.S.Sushma Kumari, who belongs to B.C.-B category also appeared in the entrance test and obtained rank 23. All the persons, who qualified in the entrance test were asked to appear before the Selection Committee on 20.8.2003 for counselling. The same could not, however, be proceeded with owing to certain legal impediments. At that stage, second petitioner filed W.P.No.20769 of 2003 contending that being the highest ranking candidate among B.C.-B candidates, she ought to have been offered a seat in MDS (Orthodontia), prayed for a Writ of Mandamus to declare the action of the university in filling up the seat in Orthodontia reserved for B.C-B candidates with any student not belonging to Osmania University (OU) local area, is bad in law and for a consequential direction to the University to admit the petitioner in MDS (Orthodontia). Along with the Writ Petition she also filed miscellaneous applications, being W.P.M.P.Nos.25988 and 25989 of 2003 praying for provisional admission and for injunction restraining the University in filling up the seat in MDS (Orthodontia). This Court by order dt.10.2.2004 dismissed both the W.P.M.Ps. The selection committee met on 28.4.2004 when the petitioners appeared before the selection committee. Allegedly first petitioner is highest ranking candidate among B.C-D and second petitioner is highest ranking candidate among B.C-B group, the university did not admit them and therefore they filed the second Writ Petition, being W.P.No.8733 of 2004 praying for a declaration that the action of the university in filling up MDS as un-reserved seat with BC candidates as arbitrary and violative of Article 14 of the Constitution of India, and for a declaration that the action of the respondents in not filling up the seats in Osmania University area with BC candidates as arbitrary and violative of Article 14 of the Constitution, and for a direction to respondents to fill up the seats in MDS course with B.C. candidates in Osmania University region and also treat the rank holder Nos.1 and 2 as un- reserved seats and fill up the resultant seats with next meritorious candidates in the merit list. They also seek a direction to respondents to consider the case of the petitioners for admission into MDS course in any specialty for the academic year 2003-2004 duly filling up un-reserved seats at the first instance and fill up the 85% of seats with the petitioners. Petitioners’ specific pleadings The case of the petitioners in a nutshell is as follows. There are fourteen seats in seven specialties – two seats in each specialty; in MDS course. Seven seats are to be filled up by candidates belonging to other communities (OC candidates) and seven seats are reserved in favour of candidates belonging to reserved classes – S.C., S.T., and B.Cs. As per the relevant Rules and administrative guidelines framed/issued by Government, four seats out of seven reserved seats have been earmarked for B.C. candidates, two seats for S.C., and one seat for S.T. The seven unreserved seats are filled up according to roaster in a cycle of seven years. As per Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 (Presidential Order, for brevity) read with relevant rules, out of fourteen seats, five seats are earmarked for candidates belonging to Andhra University (AU) local area, four seats for Osmania University (OU) local area, and three seats are set apart for Sri Venkateswara University (SVU) local area. The remaining two seats are treated as unreserved (UR) to be filled up by high-ranking meritorious candidates as per specialty option/choice of such non-local candidates. This method of local area reservation is followed as Government Dental College is a State-wide institution and the admissions are to be filled up by distributing the seats in the ratio of 42:36:22 in relation to AU, OU, and SVU local areas respectively. Since there are four seats allocated to OU local area, it is contended two seats are to be filled up by open competition, and two seats are to be filled up by reserved category candidates. Likewise, in AU local area two or three seats are liable to be filled up under open competition, and two or three seats are liable to be filled up by reserved category candidates and in SVU local area, two seats would go to open competition and one seat would go to reserved category candidate. It is further case of the petitioners that the University has not followed the above procedure and adopted an illegal method of selection. The University has filled up three seats in OU local area with OC candidates and one seat with ST candidate, who secured rank 85 and also filled up unreserved seats by granting admission to reserved category candidates, which is not permissible. There cannot be any reservation among 15% unreserved seats as held by the Supreme Court in N.T.R.University of Health Sciences v. G.Babu Rajendra Prasad. The respondents filled up unreserved seats with a candidate belonging to B.C.-B candidate and the respondents ought to have filled up the rank holders 1 and 2 as unreserved seats and ought to have filled up two seats in OU local area with OC candidates and the two seats with BC candidates. The respondents have adopted erroneous and illegal method contrary to rules and thereby denying admission to petitioners and that the method adopted by the University is arbitrary, illegal and violative of Article 14 of the Constitution of India. Respondents’ pleadings The University has filed a counter affidavit in both the Writ Petitions opposing the case of the petitioners. It would, however, be necessary to refer to counter- averments in W.P.No.8733 of 2004. The following averments made in the counter affidavit are relevant. The Government of Andhra Pradesh issued orders in G.O.Ms.No.464, dt.18.9.1993 prescribing rule of reservation on rotation basis for seven years in various specialties of MDS to SCs, STs and BCs. As the Government Dental College is State-wide institution, admissions are being made in accordance with paragraph-6 of the Presidential Order duly reserving 85% of the available seats in every course of study in the ratio of 42:36:22 in favour of candidates belonging to AU local area, OU local area and SVU local area respectively. Though there are seven specialties, as per interim directions issued by this Court in W.P.Nos.17008 and 17327 of 2003, dt.23.12.2003, the University is treating all courses as one unit to give effect to the Presidential Order. Further, in W.P.No.17322 of 2003, this Court by order dt.12.4.2004 directed to follow the roaster prescribed by the Government in G.O.Ms.No.47, dt.31.5.2000 in respect of distribution of seats reserved for SC category students as amended by G.O.Ms.No.464, dt.18.9.1993. By order dt.23.4.2004, in W.A.No.824 of 2004, this Court suspended the judgment of the learned Single Judgment W.P.No.17332 of 2003 and directed the University to proceed with counselling but not give effect to the same insofar as one seat is concerned. It was also observed that counselling for that seat would be subject to further orders in Writ Appeal. In the counter affidavit, it is further stated that the fourteen seats in MDS shall have to be filled up by distributing among three local areas as per Annexure-IV of the relevant Government Order issued under the Presidential Order duly following the reservation as per G.O.Ms.No.464 and categorization of SCs as per G.O.Ms.No.47, dt.31.5.2000. After first stage of selections by the selection committee, the following provisional selection was made. 1. Orthodontia OC 1 (OU) BC-B 3 (NL) 2. Prosthetic Dentistry OC 12 (AU) BC-C -- 3. Oral & Maxillo Facial Surgery OC 7 (OU) SC-C 102 (AU) 4. Paedodontic with Preventive Dentistry OC 4 (NL) BC-D 76 (AU) 5. Conservative Dentistry OC 2 (OU) SC-D --* 6. Periodontiology OC 8 (OU) BC-A 47 (SVU) 7. Oral Medicine & Radiology OC 16 (AU) ST -- NB:- the local area is mentioned by letters OU, AU or SVU as the case may be and unreserved seats are represented by the words NL (Non-local). The Statutory reservation category is mentioned in favour of local area or non-local area as the case may be. After provisional selection, four seats reserved for AU local area were filled up by selecting 12th rank, 16th rank OC candidates, and 76th rank B.C-D and 102 rank S.C.-C candidates. The four seats as mentioned earlier are reserved for OU local area and these seats are filled up by selecting first, second, seventh and eighth rank OC candidates, filling up all the four seats. One B.C-A candidate with 47th rank is selected to fill up one seat in SVU local area and third rank B.C.-B and fourth rank O.C. candidates are selected for unreserved seats. The reasons for not filling up one seat in AU local area and two seats in SVU local area are mentioned in the counter affidavit in the following terms. It is submitted that after 1st stage it is observed with regard to the University area that two seats in SVU area and one seat in AU area are vacant and with regard to the subjects one BC-C and one ST are vacant apart from one seat (SC-D) which was kept aside as per the directions of the Hon’ble High Court dt.28.4.2004 in W.A.M.P.No.1549/2004 in W.A.M.P.No.1497 of 2004 in W.P.No.824 of 2004. After perusal of 1st stage it is observed that no ST candidate has come under selection purview. It is observed that only one ST candidate with Rank 85 of OU area has attended the counselling and a seat has to be allotted to ST candidate with Rank 85 to maintain reservation for ST candidates. Hence, Rank 85 ST candidate is allotted a seat by replacing the least meritorious OU area candidate i.e., Rank 8 who has come under selection purview. If Rank 8 and Rank 23 have to be allotted seats, Rank 7 has to be replaced who is more meritorious than Rank 8 and 23. Hence the selections made on 28.4.2004 are strictly in accordance with rules. It is further submitted that as BC-C candidates are not available the BC-C seat in Prosthetic Dentistry is converted to any BC and the seat is allotted to the next meritorious BC candidate depending upon the vacancy available in the respective University local area and rank. The top ranks of BCs are as follows: BC-A: 47 – SVU (The only BC-A candidate selected under BC-A BC-B: 3 – NL (Already selected 23 - OU 25 - SVU 31 - OU 68 - NL BC-D 8 - OU 13 - OU 76 - AU The highest rank among the BC-D is 8 and BC-B is 23 both are from OU Area if BC-D candidate with Rank No.8 is to be selected Rank No.7 has to be replaced from OC which is higher rank than 8 from OU area. As two seats in SVU area and one seat in AU area have to be filled to fulfil the university area reservations the highest rank among the BC candidates from SVU and AU area is Rank No.25. A BC-B candidate from SVU area was allotted the BC seat which was converted from BC-C. Insofar as vacant seats in AU local area and SVU local area are concerned, it is stated that all category seats were filled except seat reserved for SC-D which was kept pending as per orders of the Court. Among AU and SVU candidates, rank 20 is the better rank and hence the OC seat is allotted to SVU local area and the seat in AU area is kept vacant as per Court orders. Considering the options of the candidates with ranks 16 and 20, who are selected under OC, rank 16 was allotted Periodonotology and rank 20 was allotted Oral Medicine and Radiology as per their options. After following this method final list of selected candidates for M.D.S. course for the year 2003-2004 is as follows. ____________________________________________________________ Sl.No. Rank in Name of Candidate Category Area Entrance test Conservative Dentistry 1. 2 Dr. Surya Kumari NBP. OC OU Oral & Maxillofacial Surgery 1. 7 Dr. Sreelalitha OC OU 2. 102 Dr. Anupama K SC-C AU Oral Medicine & Radiology 1. 20 Dr. Sudheer K.A. OC SVU 2. 85 Dr. Ramlal G ST OU Orthodontia 1. 1 Dr. Shameem OC OU 2. 3 Dr. Swathi V BC-B UR Pedodontics with Preventive Dentistry 1. 4 Dr. Hema Chandrika I OC UR 2. 76 Dr. Rajajee K.T.S.S. BC-D AU Periodontiology 1. 16 Dr. Satyanarayana OC AU A.V.K.Abba Rao 2. 47 Dr. Hema Chandra Babu C BC-A SVU Prosthetic Dentistry 1. 12 Dr. Triveni VVS OC AU 2. 25 Dr. Sreenivasulu .K Any BC SVU In the counter affidavit it is also sated that the University has followed the procedure laid down in the Government Orders in G.O.P.No.646, Education (W), dt.10.7.1979 and there is no obligation on the part of the University to fill un-reserved seats with any particular class nor to treat rank Nos.1 and 2 as unreserved seats. The procedure adopted by the university in following said Government Order is also approved by this Court in Writ Petition No.23107 of 2002 in regard to P.G. Medical Admissions. As per the communication of Medical Council of India (MCI), dt.1.11.2003, the university has to strictly adhere to the admission schedule prescribed by MCI and therefore all the selections were completed before the last date i.e., 31.5.2004 for the academic year 2004-2005, and therefore the university prays to dismiss the Writ Petitions. Petitioners’ contentions Learned counsel for the petitioners, Sri N.Rama Mohan Rao, made the following submissions. The university has to follow the rule of local reservation as well as statutory reservation and therefore high ranking reserved candidate like petitioners, who are also local candidates are entitled to be admitted to the seats earmarked for reserved candidates in MDS course. This rule can be implemented by filling up two unreserved seats out of fourteen seats only in favour of high ranking candidates as per their option and then reckoning reservation for local areas as well as statutory reservations accordingly. The university has committed grave error in selecting candidate belonging to non-local B.C-B candidate in the second seat which is always reserved for reserved candidates and then to fill up as per the cycle prescribed in G.O.Ms.No.464, dt.18.9.1993. This is impermissible, as a seat earmarked in the reserved segment cannot be given to non-local candidate, because such action would violate the rule of minimum reservation in favour of SC/ST/BC candidates. This would further result in contravention of the rule of local area reservation as per the Presidential Order. If a high ranking B.C-B non-local candidate is compelled to take a seat earmarked for O.C., such candidate might necessarily opt for a branch/specialty other than Orthodontia according to his/her option in which event second seat in every specialty reserved for reserved classes would go to such class in strict compliance with the Government Orders in G.O.Ms.No.464, dt.18.9.1993. The petitioners got highest ranks among backward classes in OU local area and they were denied seats in illegal manner. All the four seats reserved for OU local area have been filled up with OC candidates, which is not permissible under law. Lastly, the learned counsel would urge that the admissions for the year 2003-2004 were completed and classes commenced on 8.5.2004 beyond the schedule prescribed by MCI and therefore petitioners, in equities, are entitled to be admitted to the course even if the course is completed and admissions for next academic year 2004-2005 are completed. Respondents’ contentions Learned Standing Counsel for N.T.R. University of Health Sciences, Dr.Y.Padmavathi while reiterating the submissions and contentions taken in the counter affidavit filed by the Registrar of the university, she also submits that the admissions are since completed and the courses are commenced, this Court may not be inclined to issue any Mandamus to admit the students in the mid-academic year. She placed reliance on Medical Council of India v. Madhu Singh, Shafali Nandwani v. State of Haryana, Paramjeet Gambhir v. State of M.P., and Neelu Arora v. Union of India. It would be proper to refer to the legal regime in this regard before dealing with the points that are thrown up by the background facts. The relevant Statutory Rules and Government Orders The admissions to M.D.S. course – like all other courses, especially medical courses; are governed by (i) A.P. Educational Institutions (Regulation of Admissions) Order 1974; (ii) A.P. Educational Institutions (Regulation of Admissions & Prohibition of Capitation Fee) Act, 1983 (hereafter called, Act 5 of 1983); (iii) The A.P. Regulation of Admission to the M.D.S. Course in the Government Dental College and Hospital, Hyderabad, Rules, 1985 (hereafter called, MDS Rules) ; (iv) The Government Orders issued in G.O.Ms.No.464, dt.18.9.1993; (v) A.P. Scheduled Castes (Rationalization of Reservations) Act, 2000; and (vi) G.O.Ms.No.47, dt.31.5.2000. It is not necessary to elaborately refer to these statutory and executive orders because contestants in this case do not dispute the proposition that admissions to First Year M.D.S. course are to be made within the fourcorners of these rules, regulations and orders. Be that as it is, the Presidential Order requires admissions in every State-wide institution to be made in accordance with paragraph- 6 of the Presidential Order. According to paragraph-6, 85% of the seats in