IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 16522 of 2008 Between: Suresh Krishna S/o. A. Venkateshwarlu R/o. H.No.3-11-1/C, Gokhale Nagar, Ramanthapur, Hyderabad-13. ..... PETITIONER AND 1 Dr. NTR University of Health Sciences, Vijayawada 520008, Andhra Pradesh, rep. by its Registrar. 2 Convener Selection Committee for MBBS & BDS Courses for the academic year 2008-09, C/o. Dr. NTR University of Health Sciences, Vijayawada 520008, Andhra Pradesh. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue an order direction or writ particularly one in the nature of writ of mandamus or any other appropriate writ declaring the action of the respondents in not providing MBBS seat to the petitioner under BC-A Osmania University Local Area, as illegal and arbitrary and consequently direct the respondents to provide a seat to the petitioner in MBBS Course in BC-A Category Osmania University Local Area during the academic year 2008-09 and pass other order or orders in the interest of justice. Counsel for the Petitioner: MR.G.VIDYASAGAR Counsel for the Respondent No.: MR.D.V.NAGARJUNA BABU The Court made the following : O R D E R: 1. The petitioner appeared for EAMCET 2007 and secured rank No.5955. As per his eligibility he got admission in BDS course in SVS Dental College, Yediala Post, Mahaboobnagar District. He again appeared for EAMCET 2008 with Hall Ticket No.5005260 and secured Rank No.5018. He belongs to BC-A category of Osmania University (Local Area). He made application for admission into MBBS and BDS courses. As per the prospectus issued by 1st respondent-Dr.NTR University of Health Sciences, Vijayawada, seats available in Government colleges and un-aided private colleges under various categories have been indicated. Admissions into Government Professional institutions are to be ﬁlled up through counseling by competent authority as per the merit/rank duly following reservations from the students who passed EAMCET 2008. In respect of seats available in unaided professional institutions of private medical and dental colleges, seats are classiﬁed into Category A and Category B. Category A seats comprises 50% of the sanctioned intake of the seats. Those seats are to be ﬁlled through counseling by the committee for admissions appointed by the competent authority as per merit from the qualiﬁed candidates at the common entrance test EAMCET 2008 duly following the rule of reservation. Category B seats comprises 20% of the sanctioned intake of the seats which are to be ﬁlled through counseling by committee for admissions by the competent authority as per the merit from the candidates who have qualiﬁed at the common entrance test duly following the rule of reservation. As per the schedule notiﬁed by the 1st respondent- University for the academic year 2008-09, the ﬁrst phase counseling was from 23 to 25th July, 2008. Phase 2 and Phase 3 counseling was to be held simultaneously from 26-7-2008 onwards. After the ﬁrst phase of counseling, the list of vacancies available in MBBS colleges as on 25.7.08 was notiﬁed. As per the vacancy position as on 26.7.2008 at 9 a.m. there were 32 seats in category A and 16 seats in category B. The petitioner is placed at S.No.90 in Osmania University (Local Area) having secured the rank No.5018. He participated in the counseling held on 26.7.2008 and 28.7.2008. According to him, he is to be placed at S.No.84 for Osmania University (Local Area) under BC-A category in which case he is entitled to allotment of a seat under BC-A category in Osmania Unviersity (Local Area). For better understanding of the grievance of the petitioner, I deem it appropriate to refer paras 9 to 12 of the writ affidavit and they read as under: “ 9. It is submitted that the respondent/Dr.NTR University has notiﬁed the rank as per the category list in Osmania University Local Area, wherein I am at serial No.90 having secured the rank of 5018 with Hall Ticket No.5005260. Since 97 seats are available, I had fair chances of getting admission into the MBBS either in Category A or Category B seats available in private Unaided medical colleges. I had participated in the counseling held on 26th and 28th July, 2008. On 26th July, 2008, in category A O.U Local area seats upto serial no.62 (rank 3981) have been ﬁlled up. 27.7.2008 being a holiday, counseling started on 28.7.2008 from serial no.63 (rank 4061). The candidates at serial no.85 (rank 4914) and candidate at serial no.89 (rank 4990) have opted for BDS course. Apart from the above two more candidates who are ranked above me have taken the BDS course at Osmania Dental College, Hyderabad. Thus, four candidates above me have opted for BDS course and one candidate with rank No.4935 has remained absent for counseling. Further candidate at serial no.123 (rank No.1) opted for OC seat available as per his ranking, therefore he cannot be counter against BC-A category reservation. Thus, by taking into consideration that one candidate remained absent and four candidates have opted for BDS course and one candidate having taken open category seat, my place among BC-A Osmania University Local Area should go by six ranks above and I should be placed at serial no.84. 10. It is submitted that in total there are 97 seats available out of which 44 seats are available in Government colleges, out of which 5 seats are unreserved seats. In the remaining 37 seats under Private Unaided category A seats, 3 seats are unreserved. In Private unaided category B, 16 seats are available. Thus, the total seats available are 89, after keeping apart the unreserved seats in Government colleges as well as private unaided colleges. After leaving apart the candidates who have opted for BDS course and one candidate being absentee and one candidate being an Open Category candidates as per his rank, I should have been provided with a seat in MBBS course, however, even I appeared for counseling at my position with rank at 5018, there was no seat available in MBBS and I was asked to opt for BDS seat. Thus, the admissions made by the competent authority/ selection commission is wholly irrelevant and contrary to the rules and prospectus issued by the Dr.NTR University of Health Sciences. 11. It is submitted that in respect of 16 seats available in category B of unaided private medical colleges, no details were made available at the time of counseling on the display board, thereby no details are available whether they have been allotted to the Osmania University Local Area candidates or others. I presume and believe the same to be true that those out of 16 seats atleast 6 seats have been given to unreserved category, although there is no earmarking of seats in their favour, thereby, I could not get seat in MBBS course. 12. It is submitted that as per the list published by Dr.NTR University of Health Sciences for BC-A osmania University, although I stand at serial No.90, virtually I have to be placed at serial No.84 and seats available for Osmania University Local Area BC-A category being 89, I was not provided with a seat. This, itself would demonstrate the irregularity committed by the respondents 1 and 2 in counseling for admission into MBBS course for the academic year 2008-09.” 2. When the writ petition came up for admission, learned Standing Counsel appearing for 1st respondent-University received notice. 3. On 2.8.2008, learned Standing Counsel appearing for the 1st respondent-University reported that the last candidate accommodated under BC-A category secured 4815th rank and therefore the petitioner is not entitled to seek admission under BC-A category since he is less meritorious candidate having secured 5018th RANK. Subsequently, learned counsel appearing for the petitioner and learned Standing Counsel appearing for the 1st respondent placed on record their respective calculations with regard to total number of seats available under BC-A category in Osmania University (Local Area). The respondents also produced the list of candidates admitted under BC-A category after the second phase of counseling. 4. Learned counsel appearing for the petitioner ﬁled additional aﬃdavit detailing the seats available under BC-A category in Osmania Medical college, Hyderabad, Gandhi Medical College, Secunderabad and Kakatiya Medical College, Warangal. Paras 6 and 7 of the additional aﬃdavit needs to be noted and they are as under: “ 6. It is submitted that even among 86 seats ﬁlled up, the candidate at S.No.1, rank No.123, Mr.P.Nagaraju, has been admitted in Open category. The candidate at sl.No.31, rank No.2623, Hall Ticket No.6103516, Sri Dharmula Rohan Venkat was admitted in Siddhartha Medical college, Vijayawada. The candidate at Sl.No.32, rank No.2679, Hall Ticket No.5805048, A.N.Varuna Vyas, was admitted in Rajiv Gandhi Institute of Medical Science, Kadapa in unreserved female category. The candidate at Sl.No.33, rank No.2689, H.T.No.5802438, Sri Perambuduru Ravali was admitted in Siddhartha Medical College, Vijayawada. The candidate at Sl.No.61, Rank No.3965, H.T.No.4524314, Ampolu Kalpana was admitted in Gandhi Medical college, Hyderabad under unreserved seat. The candidate at Sl.No.71, Rank No.4334, H.T.No.5807254, Boppudi Kalpana belongs to Andhra University area. She is admitted in Pratima Medical College, Karimnagar under General A category and her name was shown as Osmania University candidate. However, she belongs to Andhra University Area and her name ﬁnds place in the BC-A, Andhra University area list at Sl.No.103. Thus, the above six seats are to be excluded from 86 seats ﬁlled up. Thus, the seats ﬁlled up by the BC- A candidates of Osmania University region will come down to 80 only. Thus, out of 89 seats available for Osmania University Loca area BC-A candidates, only 80 seats have been ﬁlled up and 9 more seats are available in MBBS course in the Osmania University Local area earmarked for BC-A community. 7. It is submitted that in the three Government colleges, the seats available for BC-A candidates and the seats filled up are as follows: (a) Osmania Medical College, Hyderabad: 14 seats are available for BC-A community and only 12 seats have been ﬁlled up i.e., the candidates at Sl.No.2 to 6, 8 to 14. Thus, two more seats are available in Osmania Medcial College. (b) Gandhi Medical College, Secunderabad : 9 seats are available for BC-A local candidates and one unreserved seat is available. Out of 10 seats, the list shows the 10 candidates. Out of which, one seat at sl.No.61 is admitted in unreserved category. One candidate viz., Madhuranthakam Durga Kanti Kiran whose rank is 871 belonging to SVU Local area has been admitted. Thus, against one unreserved seat, two unreserved candidates have been ﬁlled up. Besides only 8 seats have been oﬀered to BC-A local candidate whose name ﬁnds at sl.No.7, 15 to 19, 21 and 23. Thus, one more seat is available for BC-A local area candidate. (c) In Kakatiya Medical College, Warangal: 10 seats are available for local candidates, out fo which only 9 seats have been ﬁlled up. Candidates at Sl.No.20, 22, 24 to 30. Thus, one more seat is available in Kakatiya Medical College, Warangal. Thus, in the Government colleges, 4 seats are available for BC-A category Osmania University local area. Similarly, vacancies are available in the private medical colleges under Category A and category B. Thus, it is clearly demonstrates that the respondent University has not ﬁlled up all the 89 seats available for Osmania University Local Area candidates belonging to BC-A community. The last candidate admitted as per the list furnished to me at sl.No.86, whose rank is 4974, H.T.No.4901637 viz., Doli Goutami, who was admitted in CRK, Karimnagar. I am the 2 nd candidate after sl.No.86. Therefore, I have to be accommodated in 9 seats which still remained unfilled.” 5. 1st respondent ﬁled counter aﬃdavit. Dr.T.Venugopala Rao, Registrar of Dr.NTR University of Health Sciences, Vijayawada has sworn to the counter aﬃdavit. It is stated in the counter aﬃdavit that total number of seats in M.B.B.S in Osmania University area are 1300 and out of which 91 seats are earmarked for BC-A category. Para 9 of the counter affidavit reads as under: “ 9. In reply to paras 1 to 5 of the additional aﬃdavit, I submit that it is submitted that the total no. of seats in MBBS course of OU Area are 1300. The percentage of reservation is 7 %. Hence the number of seats reserved in OU area are 91. This 91 seats includes the seats reserved for under Special Category i.e. One for CAP and 3 seats under PH categories. It is submitted that by the end of 1st counseling in total 96 BC-A candidates under OU area are selected into MBBS course. Out of these 96, two candidates were selected in Siddhartha Medical College, i.e. Rank No.2623 and Rank No.2689. Out of these 96 candidates, 7 candidates were selected under OC 123 (Local), 426 (UR), 678 (Local), 920 (Local), 942 (Local, 1036 (Local) and 1157 (Local) and 4 seats were vacant after 1st counseling. 1. Total No. of BC-A candidates selected 96 2. No. of candidates selected in SMC 2 94 3. No. of candidates selected under OC 7 4. No. of seats filled in OU Area colleges 94-7 87 5. No. of vacant seats 4 TOTAL BC-A Seats 91 The selections were done as per the Presidential Order by reserving 85% of seats in each college to the local candidates and 15% of seats are treated as unreserved seats. A OMC, Hyderabad No. of BC-A seats 14 No. of BC-A candidates selected and allotted 15 No. of candidates selected under OC 1 No. of candidates selected under BC-A 14 B Gandhi Medical College No. of BC-A seats 11 No. of candidates selected under OC 0 No. of candidates selected under BC-A 10 No. of seats vacant 1 C. Kakatiya Medical College No. of BC-A seats 10 No. of candidates selected under OC/UR 1 No. of vacant seats 00 No. of candidates selected under BC-A 11 D. RIMS, Adilabad No. of BC-A seats 7 No. of candidates selected under OC 1 No. of vacant seats 1 No. of candidates selected under BC-A 7 E. Bhaskara Medical college (A+B category) No. of BC-A seats (3+1) 4 No. of candidates selected under OC 1 No. of vacant seats 1 No. of candidates selected under BC-A 4 F. Chalamada Anandarao (A+B category) No. of BC-A seats (6+3) 9 No. of candidates selected under OC 1 No. of vacant seats 1 No. of candidates selected under BC-A 9 G. Kamineni Medical College (A+B category) No. of BC-A seats (5 +2) 7 No. of candidates selected under OC 0 No. of vacant seats 0 No. of candidates selected under BC-A 7 H. Mamatha Medical College (A +B category) No. of BC-A seats (5+2) 7 No. of candidates selected under OC 0 No. of vacant seats 0 No. of candidates selected under BC-A 7 I. Medicity Medical college (A+B category) No. of BC-A seats (4 +1) 5 No. of candidates selected under OC 1 No. of vacant seats 0 No. of candidates selected under BC-A 6 J. MNR Medical College (A+B category) No. of BC-A seats (4+1) 5 No. of candidates selected under OC 0 No. of vacant seats 0 No. of candidates selected under BC-A 5 K. Prathima Medical College (A+B category) No. of BC-A seats (5+2) 7 No. of candidates selected under OC 0 No. of vacant seats 0 No. of candidates selected under BC-A 7 L. SVS Medical College (A+B category) No. of BC-A seats (4+1) 5 No. of candidates selected under OC 1 No. of vacant seats 0 No. of candidates selected under BC-A 6 The 4 vacancies were ﬁlled during 2nd counseling held during 4th to 6th September, 2008. At present no seat is available under BC-A category in MBBS course. List of selected candidates is filed in the material papers.” 6. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for respondents 1 and 2. 7. Learned counsel appearing for the petitioner submits that all the seats earmarked for BC-A category in Osmania University Local Area are not ﬁlled up and therefore he being the next to the last candidate admitted under BC-A category is entitled to be accommodated in the left over seats. He took me to various lists placed on record during the course of arguments. 8. Per contra, learned Standing Counsel appearing for 1st and 2nd respondents submits that all the seats earmarked for BC-A candidates in Osmania University Local Area have been ﬁlled up and no candidate, who is less meritorious to the petitioner, is admitted in the seats earmarked for BC-A(G) category and therefore the petitioner is not entitled to any relief in this writ petition. He placed on record the list of candidates admitted under BC-A category after completion of second phase of counseling in Osmania University Local Area. 9. Indisputably no candidate less meritorious to the petitioner has been given seat under BC-A(G) category in Osmania University Local Area. 10. A contention has been advanced by learned counsel appearing for the petitioner that Boppudi Kalpana who secured 4334 belongs to Andhra region and whereas seat has been given to her treating as local candidate in Osmania University Local Area. 11. A direction has been given on 12.9.2008 to the respondents to clarify as to which local area Boppudi Kalpana belongs. Thereupon, the learned Standing Counsel appearing for 1st and 2nd respondents placed on record the application submitted by Boppudi Kalpana. It is evident from the application that she belongs to Osmania University Local Area. Therefore, the contention of the learned counsel appearing for the petitioner that Boppudi Kalpana does not belong to Osmania University Local Area has no substance. 12. The 1st respondent-University has submitted a list of candidates admitted under BC-A category. No less meritorious student to the petitioner has been given seat under BC-A(G) category in Osmania University Local Area. The particulars of candidates admitted under BC-A category under Osmania University Local Area has been placed on record by learned Standing Counsel appearing for 1st and 2nd respondents. Therefore, I do not see any substance in the contentions advanced by learned counsel appearing for the petitioner. 13. Total number of vacancies in various colleges under BC-A category in Osmania University (Local Area) as per the particulars furnished by the petitioner are : COLLEGE CATEGORY M F OMCH TOT G/A 9 5 UNR G/A 1 1 GAND TOT G/A 5 4 UNR G/A - 1 KKTI TOT G/A 7 3 UNR G/A 1 - RADL TOT G/A 4 2 UNR G/A 1 - MMTA TOT G/A 4 1 UNR G/A 1 - TOT B 1 1 UNR B KMNI TOT G/A 3 2 UNR G/A - 1 TOT B 1 1 UNR B - - MEDI TOT G/A 3 1 UNR G/A 1 - TOT B 1 - UNR B - - MNRS TOT G/A 2 1 UNR G/A - - TOT B 2 - UNR B - - SVSM TOT G/A 2 2 UNR G/A - - TOT B 1 - UNR B - - CARK TOT G/A 3 2 UNR G/A 1 - TOT B 2 1 UNR B 1 - PRTM TOT G/A 3 2 UNR G/A - - TOT B 1 1 UNR B - - BASK TOT G/A 2 1 UNR G/A - - TOT B 1 - UNR B - - TOTAL 97 (G-57, F-30, UNR-10) 14 . Learned Standing Counsel appearing for the University placed on record the list of candidates admitted in Osmania University (Local Area) under BC-A category. Under BC-A category in colleges located in Osmania University (Local Area), of the 100 candidates, one candidate has got admission under open category and another one candidate got admission under C.P. category. If these two candidates are excluded the total number of candidates admitted under BC-A category comes to 98. Even as per the particulars furnished by the petitioner as detailed above total number of seats under BC-A category in various colleges situated in Osmania Unviersity (Local Area) are 97. Therefore, it can be said that all the seats available under BC-A category in O.S. (LA) have been ﬁlled up. No vacancy is left over under the said category. 15. It is contended by learned counsel appearing for the petitioner that the candidates appearing at S.Nos.98 to 100 are less meritorious to the petitioner and therefore any one of them is to be replaced to accommodate the petitioner. The last three candidates appearing at S.No.98 to 100 are admitted under women quota in BC-A category B seats. Therefore, the petitioner cannot compare with the candidates appearing at S.No.98 to 100. The last male candidate admitted under BC-A quota as per the list furnished by 1st respondent-University is Tirupathi Kasyaraju who secured 4914 rank. Indisputably, he is more meritorious than the petitioner. Therefore, the petitioner cannot have any grievance for admission of Tirupati Kasyaraju under BC-A general category. 16. A contention has been advanced that the women admitted under BC-A category are exceeding 33.1/3 percent and therefore the last women candidate is to be excluded from the list and the petitioner is to be accommodated. An issue fell for consideration before the Full Bench of this Court in MD.ABDUL AZEEZ ASAD V. STATE OF ANDHRA PRADESH [1] that whether the reservation quota to the extent provided for women is valid. It has been held therein that 33 1/3 percent reservation provided for women in admission to Post Graduate Medical courses, does not fall foul of the principle of ceiling on reservations established by a settled catena of precedents and reiterated in INDRA SAWHNEY’s[2] case. The challenge to reservations in favour of women is rejected. For better appreciation, I may refer para 34 to 35 of the said judgment, which read as under: “ ( 32 ) ARTICLE 15 (3) enables the State to make special provision for women and children. Aﬃrmative action including by way of reservation in favour of women is thus enabled by the equality injunctions to the constitution and by the explicit provisions of article 15 (3 ). ( 33 ) INSOFAR as public employment in the state of Andhra Pradesh is concerned, the rule of 'special representation (reservation)' is contained in Rule 22 of the Andhra pradesh State and Subordinate Services rules. In G. O. Ms. No. 65 General administration (Services-D) Department, dated 15-2-1997 amendments were introduced, inter alia, enabling provision of reservation for women. The existing 100 point roster was also modiﬁed to incorporate reservation for women provided in g. O. Ms. No. 65. Rule 22 (a) of the State and subordinate Services Rules, was also amended in this Government Order and provided for the method in which the preference to women to the extent of 33 1/3 per cent should be considered. Though the 1997 Rules (pertaining to the admissions to post-Graduate Medical courses) did not either enable or mandate reservations in favour of women, in the 2005 Rules, Rule-V provided for reservation for women 'as per g. O. Ms. No. 65 General Administration (Services-D) Department dated 15-2-1997'. There is, therefore, a clearly discernible policy decision of the executive and the mandate contained in the statutory instrument (2005 Rules), that authorises providing reservations for women in Post-Graduate Medical Education. ( 34 ) ANOTHER contention urged on this aspect is that providing 331/3 per cent reservation for women has the eﬀect of transgressing the 50 per cent limit of permissible reservations. The contention goes: there are already reservations to an extent of 46 per cent in favour of the scheduled Castes, the Scheduled Tribes and the Backward Classes and if 331/3 per cent of the seats are reserved in favour of women, the actual number of un-reserved seats would fall below the 50 per cent mark. ( 35 ) THE above contention does not merit acceptance. In Indra Sawhneyv. Union of India, Jeevan Reddy, J. speaking for himself, M. H. Kania, C. J. , m. N. Venkatachaliah, and A. M. Ahmadi JJ (the majority)