THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRIJUSTICE M.VENKATESWARA REDDY W.A. NO. 491 OF 2006 % TUESDAY THE 9TH DAY OF MAY , TWO THOUSAND SIX #Dr.K.Kishore Kumar son of Kd.Veera Brahmam and three others. …Petitioners vs. $State of Andhra Pradesh, represented by its Principal Secretary, Health, Medical and Family Welfare Department, Hyderabad and two(2) others. Respondents Counsel for the Appellants : Mr.Nuty Rammohan Rao ^ Counsel for the respondents : The Advocate General for Respondent Nos.1 and 2 Mr.S.Niranjan Reddy for M.C.I Mr.D.V.Nagarjuna Babu for respondent No.2 < Gist : >Head Note: ? 1) AIR 2003 SC 2952 2. (1999) 7 SCC 120 3. (1994) 4 SCC 401 4. (1997) 6 SCC 283 5. (2001) 8 SCC 64 6. AIR 2003 SC 3371 THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRIJUSTICE M.VENKATESWARA REDDY W.A. NO. 491 OF 2006 Between: Dr.K.Kishore Kumar son of Kd.Veera Brahmam and three others. …Petitioners vs. State of Andhra Pradesh, represented by its Principal Secretary, Health, Medical and Family Welfare Department, Hyderabad and two(2) others. …Respondents. THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRIJUSTICE M.VENKATESWARA REDDY W.A. NO. 491 OF 2006 JUDGMENT: [Per Hon’ble Sri Justice G. Raghuram] In an interlocutory order, a learned single Judge, by the order dated 26.4.2006 in WPMP No. 9577 of 2006 in Writ Petition No. 7467 of 2006 directed that the provisional admissions made by the 2nd respondent-University pursuant to the First phase of counseling, to Post -Graduate Medical Degree and Diploma Courses be not confirmed and for admissions to be made in the Second phase of counseling, the 2nd respondent should notify to the candidates to be admitted that their admissions are subject to the writ petition. The application for interim relief was directed to be posted after the summer recess of the court. Aggrieved, the writ petitioners have filed the appeal. The appeal came up for admission hearing on 28.4.2006 and the learned Division Bench felt that having regard to the immediacy of the problem, the appeal along with the substantive writ petition be taken up during the (summer) vacation for final disposal. This court has heard elaborate arguments in the appeal and the writ petition as well, on 3.4.2006 at a special sitting of the vacation Bench. Though we have heard counsel for the respective parties at length and rather comprehensively and could dispose of the writ petition itself, we have considered it appropriate that having regard to the importance of one of the issues involved ( i.e. regarding addition of 5 moderation marks)), the views of the Medical Council of India (R-3 in the writ petition) should also be considered. The 3rd respondent has not filed a counter affidavit in the writ petition as yet. Further, on account of paucity of time in a vacation Session, we are inclined for the nonce, to dispose of the appeal (directed against the interim order) while indicating the issues arising for consideration and recording brief reasons for the order in the appeal. The writ petition may be listed for hearing before the appropriate bench as directed by the Hon’ble the Chief Justice, immediately after the summer vacations. The parties are referred to as arrayed in the writ petition. The petitioners are all Doctors, qualified, internship completed and registered with the State Medical Council. They are desirous of pursuing Post Graduate Medical Courses. The 2nd respondent notified admissions (for the academic session 2006- 2007) to the PG Degree and Diploma Courses for the current academic year. According to the schedule prescribed by the 2nd respondent – application forms will be issued up to 15.2.2006; last date for submission of applications is 16.2.2006; the date of the entrance examination is 25.2.2006; results are to be announced on 6.3.2006; the first counseling is on 16.3.2006; the last date for reporting to colleges is 1.4.2006; the date of the 2nd counseling is on 12.4.2006; last date for reporting to colleges after 2nd counseling is 26.4.2006; the commencement of classes is from 2.5.2006; and closure of admissions is on 31.5.2006. The entrance examination was conducted on 25-02-2006, the results announced on 05-03-2006 and exhibited on 06-03-2006. The first phase (stage) of counseling was initially scheduled to commence on 16-03-2006 but did so on 08-04-2006 and went on upto 09-04-2006. The 2nd stage of counseling is stated to have not yet commenced. Petitioners applied and appeared at the entrance examination. The 1st petitioner belongs to the Osmania University Local Area (for short ‘O.U. Local Area’) (within the meaning of the expression as defined in The Andhra Pradesh Educational Institutions (Regulations of Admissions) Order, 1974 (Presidential Order (for short ‘P.O.’) and belongs to B.C-B category and secured Rank No.6 in the overall merit ranking; the 2nd petitioner, who belongs to Sri Venkateshwara University Local Area (for short ‘S.V. Local Area’) and to the B.C-B category secured Rank No.44; the 3rd petitioner also belongs to the S.V. Local Area, belongs to B.C-D category and has secured Rank No.49; and the 4th petitioner, who belongs to OU Local Area, is a differently abled (Physically Challenged) person, does not belong to any reserved category and secured Rank No. 1078. At the first phase of counseling the petitioners secured admissions in M.D. General Medicine, Osmania Medical College; M.S. General Surgery, Kurnool Medical College, Kurnool; M.S. Orthopaedics, S.V. Medical College, Tirupathi and Diploma in Child Health, Osmania Medical College/Niloufer Hospital, Hyderabad, respectively. The petitioners contend that the counseling procedure adopted by the 2nd respondent for regulating admissions to the Post Graduate Medical Courses is illegal, arbitrary and irrational and seek a Writ or direction, in the nature of Mandamus to: i. Declare the action of the respondents No. 1 and 2 in regulating the admission process into post-graduate medical courses for the academic session 2006-07 by adopting and following the improperly designed roster system which has resulted in denying the right to seek admission into post-graduate medical courses based upon the merit ranking of the candidates and hence, as unconstitutional. ii. Direct the respondents No. 1 and 2 to forthwith undertake the exercise of counseling properly to regulate the admissions into post-graduate courses for the academic session 2006-07 immediately so as to ensure that the post-graduate medical courses commence from 02- 05-06; iii. Further direct the 3rd respondent to fix the responsibility and accountability for the illegal exercise of admissions carried out into post-graduate medical courses in the State of Andhra Pradesh by following and adopting illegal procedure from 03-04-2006 onwards and direct action to be initiated against such person/persons; iv. Direct the 2nd respondent to compensate each one of those students who are wrongfully denied admission into post-graduate medical courses/institutions of their choice for the academic year 2006-07 by awarding exemplary cost of atleast Rs.10,000-00 to be paid to each of them and pass such order or further orders as are deemed fit and proper in the circumstances of the case. As an interim measure, they seek suspension of the admissions process and directions to the 1st and 2nd respondents to undertake the counseling process properly, duly rectifying the errors pointed out (alleged) in the writ petition. Though a number of grounds have been urged assailing the counseling and admissions process adopted by the 2nd respondent, at the hearing on 03-05-2006 before us, Sri Nooty Ram Mohan Rao, the learned counsel for the petitioners confined the challenge to a few aspects, hereinafter considered as issues A to D. A. Earmarking first slots in the roster points in SC, ST and BC-A, B and D categories for Women Reservation:- According to the petitioners initially for the previous academic year’s Post Graduate Medical Admissions, the first point in the 100 point roster was earmarked for OC Women Category. This anomaly having been pointed out in a writ petition, in the previous year itself the roster point was altered and earmarked for Open General Category (unreserved and gender–neutral). However, the first slots in the roster points meant for SC, ST and BC-A, B and D categories continue to be earmarked for women candidates of the respective reserved categories. Consequently, the petitioner Nos. 1 to 3 who belongs to Backward Classes have been denied the right to compete against the first slot in the respective backward classes categories in the roster. For in-service candidates however in the respective categories of OC, BCs, SC and ST, the first slots are not reserved for women and the in-service doctors belonging to the respective categories could compete for admission to the first slot of the respective categories on the basis of their merit ranking. There is thus a discrimination employed by the 1st and 2nd respondents as between in-service candidates and others in the matter of earmarking the first slots in the roster, earmarked for SC, ST and BC-A, B and D categories. (B) Adding of marks The 2nd respondent on its own decided to add five (5) moderation marks to all candidates at the Post-graduate Entrance Examination, lowering the minimum standards fixed by the 3rd respondent. Further the officials of the 2nd respondent without reference either to the Executive Council or the Academic Council of the University added 4th and 3rd marks respectively for students who had answered the question papers of set-A; and sets-B, C & D respectively, on an assumption that the answers furnished (4 questions in set-A and 3 questions each in sets-B, C & and D respectively) are either inaccurate, incorrect or ambiguous. The P.G. Medical Entrance Test being a competitive examination and not a mere qualifying examination, each mark secured by a candidate at the entrance examination assumes considerable importance, as inter se merit ranking is determined thereby. The addition of marks is illegal since the 200 questions in all the four (4) sets are identical though in each set the several questions are arrayed in a different order. C.Discrimination against the differently abled: 3% of the seats in P.G. Degree and Diploma Courses are reserved for the differently abled candidates which are in the nature of horizantal (inter-locking) reservations. The 2006 Rules mandate that “ the 100 point roster as available in Rule.22 (e) of the A.P. State and Subordinate Service Rules, 1996 (the 1996 Rules) shall be applied mutatis mutandis, except changing the first point to the 3rd point and vice-versa for the purpose of calling candidates for counseling. While so, in subversion of the above statutory mandate (Rule.1(II)(i) of the 2006 Rules read with Rule.22(e) proviso ii of the 1996 Rules), within the first 100 roster points only two slots i.e., 31 and 92; in the next 100 roster points, three slots i.e., 101, 156, 181; in the 3rd 100 roster points, five slots i.e., 215,229,243,275 and 276; and in the 4th cycle of 100 roster points two slots i.e., 327 and 338, have been set apart for being filled up by the differently abled candidates. Proviso ii of Rule 22(e) of the 1996 Rules mandates that “ the 6th, 31st and 56th turns in each unit of 100 vacancies shall be allotted to the physically handicapped persons and where qualified and suitable candidates are not available from among physically handicapped persons, the turn allotted for them in the unit referred to above shall be carried forward for three succeeding recruitment years and the reservation for these vacancies shall cease thereafter” The counseling and admission process adopted by the 2nd respondent is ultra vires the provisions of the 2006 Rules read with the relevant provisions of the 1996 Rules; adversely impacts candidates belonging to the differently abled category; and as a result the 4th petitioner (a differently abled person) has lost the benefit of securing admission either in M.D (General Medicine) or Paediatrics Course. These courses, which are normally available within the first 100 slots of the cyclic order. The 4th respondent was therefore constrained to opt for the two year Diploma Course in Child Health. D. Violation of the Presidential Order: Under the Presidential Order, 85% of the seats available in all educational institutions receiving aid or controlled by the State shall be filled exclusively by local candidates belonging to the O.U, A.U and S.V.U local areas. Even in respect of State-wide courses and seats available in State-Wide institutions, 85% of the seats must be filled by local candidates, the distinction being that the state-wide courses and seats in state-wide institutions to the extent of 85% must be offered proportionately in the ratio of 45:36:22 to the local candidates of A.U,O.U and S.V.U, local areas. A separate roster must therefore be maintained for regulating the admissions process for 85% local candidates. The balance 15% of the seats must be filled exclusively on the basis of merit ranking of the candidate and a separate roster must be prepared and maintained therefor. The 2nd respondent has not done so to the prejudice of the local area candidates. At the commencement of the first phase of the counseling (from 04-03-2006) since the first slot must be filled by an Open General category candidate, the first three rankers (belonging to the three local areas, A.U, O.U & S.V.U) were called to the counseling hall. As incidentally the first two merit rankers happened to belong to the S.V.U local area and 3rd ranker to the O.U local area, the first ranker exercised his option to be admitted against the 15% un-reserved seats available in the O.U area. He obtained admission to MD- Radio diagnosis Course in the O.U. Since there are four available seats and in the O.U local area for this course only one of them is available for the unreserved segment (15% under the Presidential Order). Though the 2nd ranker was also eligible to secure admission against 15% un-reserved segment in the seats available in the O.U local area, he was denied such a benefit on the ground that the first ranker had taken up the unreserved seat. Since in several other Post-graduate Degree Courses such as MD(General Medicine), Paediatrics, MS(General Surgery) and Orthopedics etc., more than four seats are available in the Osmania Medical College, Hyderabad alone, the 2nd ranker was entitled to claim admission into any of those courses against the 15% un-reserved segment though he was a local candidate of the S.V.U local area. The 2nd respondent, however at the counseling process, illegally denied admission to the 2nd ranker in the 15% un-reserved segment in other courses like General Medicine, Paediatrics etc.,. The 3rd ranker this year hails from O.U local area. He was denied admission in the available seats in the O.U Local area on the ground that the first slot, an O.C slot in the O.U local area, had been taken up by the first ranker. Since Dr.Ravi Kant the 3rd merit ranker was the first merit rank holder amongst the local candidates of the O.U local area and despite 85% of the seats in all Post-graduate courses in the OU Local area being reserved to be filled up by the O.U local candidates, Dr.Ravikant ought to have been permitted to choose any of the available 85% of the seats reserved for the local candidates of the OU local area but was asked to wait for staking his claim till the 11th slot in the roster came up for consideration. As a consequence the remaining three seats in the MD(Radio diagnosis) course in the OU area (allocable to the 85% reserved for local candidates of OU local area) were exhausted by the time Dr.Ravikant was permitted to stake his claim at the 11th slot in the roster. Dr Ravikant, left with no alternative had to accept MD(General Medicine) in the OU for the academic session 2006-2007. Responding, the learned Advocate General for the State of Andhra Pradesh appearing for the respondent Nos. 1 and 2 has marshalled the defence on behalf of these defendants. On behalf of the 2nd respondent two counter affidavits are filed – one on 23-04-2006 and the other on 02-05-2006. ISSUE-A: Regarding issue-A, the counter affidavit dated 23-04-2006 states that as the 2006 Rules direct the 100 per cent (roster specified in Rule 22 (e) of the 1996 Rules) to be applied mutatis mutandis except for changing the 1st roster point to the 3rd and vice versa, for the purpose of calling the candidates for counseling the roster has strictly been followed. As the conduct of the University is consistent with the 2006 Rules, there is no illegality. In the additional counter affidavit filed on 02-05-2006, the 2nd respondent pleads that the petitioners have no locus standi on this issue; the petitioner Nos. 2 and 3 are not the top rankers in their respective categories in their respective university local areas; though the 1st petitioner is the top ranker in his category i.e., BC-B in the OU Local Area, he did not suffer any disadvantage, as BC- B (Women) i.e., at the 10th slot in the O.U Local Area opted for M.D (Pediatrics) in the O.U Local Area and when the petitioner No.1 was called as an O.C. candidate at the 13th slot, though he belongs to BC-B category he opted for MD (General Medicine), despite availability of a M.D. (Pediatrics) seat in the OU Local Area at that point. Consequently the available M.D (Pediatrics) seat was picked by a BC-B candidate at the 24th roster point with Rank No. 25. Thus, the petitioners were neither prejudiced nor affected and this question raised by them is merely academic. Prima facie, this court is not inclined to countenance this challenge of the petitioners and for a plurality of reasons. Firstly, the petitioners have not challenged the validity of any of the provisions of the 2006 Rules; the 2006 Rules mandate that 100 point roster set out under Rule 22 (e) of the 1996 Rules should be followed mutatis mutandis except for substituting the roster point No.1 with 3 and vice versa. The first slots in each of the categories of SC, ST and BC-A, B and D are earmarked for women reservation in the 100 point roster under Rule 22 (e) of the 1996 Rules; Secondly, none of the petitioners have established how they have in fact been affected by setting apart the first slot for reservation in favour women candidates. The 2nd respondent’s counter has pointed out that the petitioners have not been prejudiced and the petitioners do not combat this factual assertion of the 2nd respondent; Thirdly, providing reservation for women is a legitimate policy choice by the State. Once the power to make the choice and the legitimacy of such choice is conceded, integral to the affirmative action of the State (in favour of women) is the discretion to consciously opt for a policy detail that provides a primacy of choice (in each of the categories – SC, ST, BC – A, B and D) for women on an assumption that women belonging these categories suffer a greater backwardness component which requires to be addressed. The aggravated backwardness status of women belonging to SC, ST, and OBC’s is not contested either in the pleadings or in oral argument. This challenge by the petitioners does not therefore commend acceptance by this Court. ISSUE-B: Responding to the challenge regarding the addition of marks, the 2nd respondent’s counter dated 23-04-2006 admits that both, the regulations for admission to Post Graduate Medical Courses and Rule 9 of the Post Graduate Medical Education Rules, 2000 (issued by the 3rd respondent) mandate that the minimum percentage of marks to be secured for eligibility for admission to Post Graduate Medical Courses is 50% for General Category candidates and 40% for those belonging to SC, ST and Other Backward Classes. On factual aspects, this counter states that in order to avoid copying at the entrance examination, four sets of question papers (A, B, C and D series) were prepared by jumbling the questions and questions are common in all the series of question papers. Three common questions were deleted as they were found to be defective and in the ‘A’ series question papers, a printing mistake was noticed in respect of one question as regards the multiple answers provided and, therefore this question was additionally deleted in the ‘A’ series question paper. Thus four questions in ‘A’ series and three questions in B, C and D series question papers were deleted. Therefore, four marks were added to candidates who answered the ‘A’ series question paper and three marks to candidates who answered the B, C and D series question papers. According to the counter, this is the regular practice in all entrance examinations conducted by the 2nd respondent. Regarding the other aspects i.e. of adding five (5) marks to all candidates, the counter affidavit states as under: “At the end of evaluation, it was found that only 42% (1,819 out of 4,349) of the candidates secured 50% (in respect of SC/ST 40%) and more marks. The marks obtained by them are ranging between 50 to 156 out of 200. The matter was discussed by the valuation committee and in response thereto, the University decided to add 5 marks to all candidates uniformly. In the previous years, more than 50% of the candidates got qualified and this year only 42% candidates are qualified. The details of the previous year are as under: YEAR % OF QUALIFIED CANDIDATES 2001 79.59% 2002 63.41% 2003 81.41% 2004 74.18% 2005 50.87% 2006 40.71% In view of the fact that there is a drastic fall in the percentage of qualified candidates and also anticipating that there is a possibility of some seats going unfilled, it was decided to add five (5) marks to all the candidates whereby the total qualified candidates became 2193 (50.04%). Further, as it was brought to the notice of the University by the members of the valuation committee that the question paper is tough and the number of candidates being qualified is likely to be less, the above said decision was taken to add 5 marks to all the candidates. The above policy decision has been taken by the Vice Chancellor, who is empowered under Section 12 of the Dr. N.T.R. University of Health Sciences Act, 1986, to take such decisions in case of contingent situations. Further, the decision taken by the Vice Chancellor was placed before the Executive Council in the meeting held on 17-04-2006 and the Executive Council has approved the same. The allegation that the addition of marks is done with an intention to benefit the service candidates only is incorrect and baseless, since, no discrimination was done in adding the marks. The marks were added uniformly to all the candidates irrespective of the category to which they belong. The decision taken by the University is in good faith. The same does not amount to lowering of the minimum qualifying marks prescribed by the Medical Council of India in as much as the power to conduct the Entrance Test vests with the University and in view of tough setting of the question paper, bonafidely a policy decision has been taken to add 5 marks to all the candidates. The said academic policy is in the larger interest of the student community and in order to save the seats going unfilled which has the effect of wasting the infrastructural facilities provided by the State Government. In this connection, it may not be out of place to mention that in most of the Government Teaching Medical Colleges, number of Assistant Professor Posts are vacant on account of non-availability of Doctors with Post Graduation Qualifications. If large number of Post Graduate Seats remain unfilled, the position in future will become more worse. Therefore, no body is discriminated and accordingly, there is no infirmity in the admission process as alleged by the petitioner. More over, by the addition of 5 grace marks to all the candidates, the petitioners are not affected in any manner in as much as even by virtue of the addition of marks, ranks up to 1500 remain unchanged. Admittedly, all the petitioners have got ranks below 1500 and therefore, they cannot have any grievance. During the first phase of