*HON’BLE SRI JUSTICE GODA RAGHURAM AND *HON’BLE SRI JUSTICE R.KANTHA RAO +W.P.NO.16657 OF 2010 % DATED: 26.10.2010 BETWEEN: #Mudavathu Nagaraju and another .. Petitioners And $The Governmentof Andhra Pradesh And others .. Respondents !Counsel for the petitioner: Mr V.Malik ^ Counsel for the Respondent : Additional Advocate General <GIST: > HEAD NOTE: ? Cases [1] 1994(3) ALT (F.B) 2 1975 SCC(1) 267 3 AIR 1967 SC 1643 4 1993 (4) SCC 727 5 (2006) 6 SCC 581 6 (1999) 9 SCC 559 7 AIR 1979 SC 193 (paragraphs 65-71 of the AIR report). HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO.16657 OF 2010 DATED: 26.10.2010 BETWEEN: Mudavathu Nagaraju and another .. Petitioners And The Governmentof Andhra Pradesh And others .. Respondents HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE R.KANTHA RAO W.P.NO.16657 OF 2010 ORDER: (Per RKR,J) This writ petition is filed seeking issuance of writ of mandamus declaring the Statute 13(3) framed under Rajiv Gandhi University of Knowledge Technologies Act, 2008 as illegal, arbitrary and unconstitutional as violative of Article 371(D) of the Constitution of India read with the provisions of A.P. Educational Institutions (Regulations of Admissions) Order 1974 and to strike down the same. The case of the petitioners which is set out in the affidavit filed in support of the writ petition is like this: The Statute 13(3) framed under Rajive Gandhi University of Knowledge Technologies Act, 2008 provided reservation policy for admission into six years course of Engineering provided at Idupulapaya, Kadapa District, Nuzividu, Kishna District and Basara in Adilabad District. Under the statute, the rural unit of mandal is considered as the local unit for reservation in respect of a local candidate. The second petitioner has passed SSC with 503 marks out of 600 in Gampalagudem Zilla Parishad High School, Gampalagudem Mandal, Krishna District and he was one of the candidates, who appeared for the counseling. His grievance is that on account of the misapplication of local area reservation policy by considering local mandal as local unit in the counseling held on 9th and 10th July, 2010, the candidates of the same local area, who have secured lesser marks than the second petitioner, were provided admission and the second petitioner was denied the admission on erroneous consideration of rural mandal as unit for reservation in relation to a local candidate. The petitioners contend that the aforesaid policy is contrary to GSR 602(e) dated 27.08.2009 and they questioned in the present writ petition, the vires of the Statute 13(3) as violative of Article 371(D) of the Constitution of India. It is submitted by the petitioners that the Parliament enacted Article 371(D) and in pursuance of Sub-Article (1) and (2) of Article 371(D), a Presidential Order was promulgated known as A.P. Educational Institutions (Regulations of Admissions) Order 1974. As per an amendment issued in GSR 602(e) dated 27.08.2009, 3rd respondent University has been included under para 2(1) Clause (f) and as such, the same has become a state-wide university. Under the scheme of the Presidential Order, local area reservations are applicable to non state-wide institutions and also state-wide institutions or state-wide Universities. As per para 6 of the Presidential Order 85% of the available seats in every course of study provided by a state-wide University like the present one shall be reserved in favour of local candidates and the allotment of seats in state wide institutions or Universities is in the ratio of 42:36:22 for Andhra University area, Osmania University area and Venkateshwara University Area respectively. It is asserted by the petitioners that when once the seats are allotted to each local area the unit of admission for the local candidates can only be on the basis of local area reservation. According to them, as per the definition of local candidate provided in para 4 read with para 3 of the Presidential Order, the second petitioner is a local candidate of Andhra University area qualified for admission in to 6 years course of Engineering, but was unjustly denied admission by considering local mandal as the unit in respect of reservation for a local candidate, therefore, they say that the Statute 13(3) framed under Rajiv Gandhi University of Knowledge Technologies Act, 2008 is contrary to the concept of local candidate envisaged under the Presidential Order. The petitioners therefore, sought to declare the Statute 13(3) as ultra vires of Articles 14, 15 and 371(D) of the Constitution of India and of the Presidential Order, 1974. The writ petition has been resisted by the respondents on the following grounds: The main object of the Rajiv Gandhi University of Knowledge Technologies Act, 2008 which came into force on 28.04.2008 is to cater the educational needs of the meritorious rural youth of Andhra Pradesh and keeping the said object in mind seats in each mandal are assigned proportionately to the rural population based on the 2001 census. Only students from the rural schools in each mandal are considered for admission on the ground that the students of rural schools are relatively handicapped compared to the students from schools in urban area for want of infrastructure, and the other resources. It is their version that the students from the schools in urban areas normally dominate the selection process across the State and to avoid hardship to the students in the rural schools and to afford them proper opportunity, rural mandal is taken as unit for considering the reservation relating to local candidate. They say that the object of Act 18 of 2008 is to ensure quality of education to rural students. The respondents further submitted that broadly they followed para 6 of the Presidential Order in the process of making reservation for local candidates in relation to local areas specified in sub paras 1 to 3 of para 3 in the ratio of 42:36:22 respectively and that the governing council in exercise of its power under the Act completed the admission process for the academic year 2010-2011 and the classes also have been commenced. They assert that the university has power to follow the procedure prescribed under the Act and since the petitioners did not challenge the powers of the University in framing the guidelines for admission, the action of the University cannot be found fault with as it is in furtherance of directive principles of the State policy envisaged in Part IV of the Constitution of India. Thus, it is their contention that the Statute 13(3) of Rajiv Gandhi University of Knowledge Technologies Act, 2008 is perfectly valid and cannot be said to be ultra vires of Articles 14, 15 and 371(D) of the Constitution of India. Contending as above, the respondents sought to dismiss the writ petition. We have heard Sri V.Mallik, learned counsel appearing for the petitioners, the learned Additional Advocate General and the learned Government Pleader for education appearing for the respondents. Para 3 of the Presidential Order, 1974 defines local area as: “Local Area:- (1) The part of the State comprising the districts of Srikakulam, Visakhapatnam, West Godavari, East Goavari Krishna, Guntur and Prakasham shall be regarded as the local area for the purposes of admission to the Andhra University, the Nagarjuna University and to any other educational institution other than State-wide University or a State-wide educational institution) which is subject to the control of the State Government and is situated in that part. (2) The part of the State comprising the districts of Adilabad, Hyderabad, Karimnagar, Khammam, Mahaboobnagar, Medak, Nalgonda, Nizamabad and Warangal shall be regarded as the local area for the purposes of admission to the Osmania University, the Kakatiya University and to any other educational institution (other than a State–wide University or State-wide educational institution) which is subject to the control of the State Government and is situated in that part. (3) The part of the State comprising the districts of Ananthapur, Cuddapah, Kurnool, Chittoor and Nellore shall be regarded as the local area for the purposes of admission to Sri Venkateshwara University and to any other educational institution (other than a State-wide University or State-wide educational institution) which is subject to the control of the State Government and is situated in that part. and para 4 defines local candidate as: 4. Local candidate:- (1) A candidate for admission to any course of study shall be regarded as a local candidate in relation to a local area- (a) if he has studied in an educational institution or educational institutions in such local area for a period of not less than four consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared in the relevant qualifying examination; or (b) where, during the whole or any part of the four consecutive academic years ending with the academic year in which i.e. appeared or, as the case may be, first appeared for the relevant qualifying examination, he has not studied in any educational institution, if he has resided in that local area for a period of not less than four years immediately preceding the date of commencement of the relevant qualifying examination in which he appeared or as the case may be, first appeared. (2) A candidate for admission to any course of study who is not regarded as a local candidate under Sub-paragraph(1) in relation to any local area shall- (a) if he has studied in educational institutions in the State for a period of not less than seven consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared for the relevant qualifying examination, regarded as a local candidate in relation to- (i) such local area where he has studied for the maximum period out of the said period of seven years; or (ii)where the periods of his studying two or more local areas are equal, such local area where he has studied last in such equal periods; or (b) if, during the whole or any part of the seven consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared for the relevant qualifying examination, he has not studied in the educational institutions in any local area, but has resided in the State during the whole of the said period of seven years, be regarded as a local candidate in relation to- (i) such local area where he has resided for the maximum period out of the said period of seven years; or (ii) where the periods of his residence in two or more local areas are equal, such local area where he has resided last in such equal periods. From the concept of local area and local candidate in the Presidential Order, the relevant factors for considering as to who is the local candidate entitled for reservation is not only the place of the residence of the student, but the educational institution where he had studied during the academic years as mentioned in para 4. But the Statute 13 under the Act, 2008 dealing with student admissions provides the eligible criteria as follows: (1) The institute shall be a fully residential. (2) The institute will cater primarily to the educational needs of the meritorious rural youth of Andhra Pradesh. (3) The admission process is based on the local basis with rural mandal as a unit, allowing for the established reservation norms. (4) The merit is based on the marks secured in the Secondary School Certificate (tenth standard) from out of the applicants. The contention of the petitioners is that the Statute 13(3) introduced a new concept of local area and basing on the staid concept the State authorities have been violating the provisions of the Presidential Order each academic year with impunity and unless the Statute 13(3) is declared ultra vires of Article 14, 15 and 371(D) of the Constitution of India and the Presidential Order, 1974 it would result in deprivation of academic opportunities to the meritorious students despite they being local candidates in a particular university area in terms of the Presidential Order. Article 371(D) of the Constitution was enacted to provide special provisions in respect of the State of Andhra Pradesh one of the important objects which the article seeks to achieve is providing equal opportunities to the students of different areas of the State in the field of education. The Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 is made by the President in exercise of powers conferred by Clauses 1 and 2 of the Article 371(D) of the Constitution of India. The Full Bench of this Court in DR B.SUDHAKAR, M.D. V. UNION OF INDIA, REP.BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI AND OTHERS[1] in paras 32 and 33 of the judgment explained the object and purpose of the Presidential Order as follows: ( 32 ) We have noted above that the State is divided into three local areas. The scheme contained in paragraph 5 of the Presidential Order is to reserve 85% of the available seats for the candidates of each local area and leave the balance 15% as unreserved. In the light of the historical background in which Articles 371-D and 371-E were inserted in the Constitution and the Presidential Order came to be made, it would be reasonable to assume that the Order protects the interest of local candidates of each of the three local areas treating each local area as a Unit - and thus provides equal opportunities to the candidates of the State as a whole which is both in consonance with public interest as well as in accordance with the requirement of providing equitable opportunities and facilities for the people belonging to different parts of the State which is the mandate of Article 371-D. We cannot so construe the provisions of paragraph 5 as to frustrate or defeat the very purpose of the Presidential Order. Now let us elaborate this position. For purposes of paragraph 5, if there is one available seat in each of the three local areas and according to the contention of the petitioner each seat is treated as unreserved, candidates of one local area having better rank in entrance examination will secure admission and no seat will be available for candidates of other two local areas. This, in our view, will perpetuate the mischief which was sought to be remedied and thus frustrate the object of the Presidential Order. ( 33 ) THERE can be no doubt that reservation is anathema to merit in the matter of admission to courses of studies in which there is stiff competition as that alone satisfies the requirement of Article 14 of the Constitution. But just as inequality among equals results in denial of equal opportunities, so also, equality among unequals results in denial of equal opportunities and the concept of equal protection of law becomes a mere concept of philosophy with no practical significance. Therefore, in the interest of the community as a whole, for balancing interests of various groups, categories and regions and for providing equitable opportunities and facilities for the people of different parts of the State to achieve satisfaction of public at large, reservation has to be accepted as a necessary factor, be it on caste basis or regional basis or any other rational basis. This is the underlying object of Article 371-D and the Presidential Order. In STATE OF UTTAR PRADESH v PRADIP TANDON[2] , it was contended before the Apex Court on behalf of the State of Uttar Pradesh that the reservation for rural, hill and Uttara Khand areas are for socially and educationally backward classes and that these reservations are valid on geographical or territorial basis. Repelling the contentions, the Apex Court held in paras 26, 29 and 42 as follows: ( 26 ) 80 per cent. of the population in the State of Uttar Pradesh in rural areas cannot be said to be a homogeneous class by itself. They are not of the same kind. Their occupation is different. Their standards are different. Their lives are different. Population cannot be a class by itself. Rural element does not make it a class. To suggest that the rural areas are socially and educationally backward is to have reservation for the majority of the State. ( 29 ) THE reservation for rural area cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens. This reservation appears to be made for the majority population of the State. 80 per cent of the population of the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. Poverty is found in all parts of India. In the instructions for reservation of seats it is provided that in the application form a candidate for reserved seats from rural areas must submit a certificate of the District Magistrate of the District to which he belonged that he was born in rural area and had a permanent home there, and is residing there or that he was born in India and his parents and guardians are still living there and earn their livelihood there. The incident of birth in rural areas is made the basic qualification. No reservation can be made on the basis of place of birth, as this would offend Article 15. ( 42 ) FOR these reasons we hold that the reservation in favour of candidates from rural areas is unconstitutional. The reservations for the hill and Uttrakhand areas are severable and these are valid. If we apply the ratio laid down in the judgments of Full Bench of this Court and the Apex Court referred above to the facts of the present case, the provisions made in the Statute 13(3) of the Act, 2008 considering local rural mandal as unit for the purpose of reservation to the local candidates is unconstitutional as it offends Article 15 of the Constitution of India. The policy under the Statute does not confirm to the objectives sought to be achieved by Article 371(D) of the Constitution of India. The said Statute also offends the Presidential Order, 1974 made by the President in exercise of powers conferred by Clauses 1 and 2 of Article 371(D) of the Constitution of India. It takes away the opportunities of the meritorious students, who in fact are local candidates of a particular university area in terms of the Presidential Order. The Statute cannot be justified on the ground of affording opportunity to the students from rural schools, who are not able to compete with the students of schools in urban areas whose resources and infrastructural facilities are said to be entirely different. There are several instances wherein the students from rural schools show supremacy over the students from schools in urban areas, in the selection process of several courses in various educational institutions and universities. The procedure adopted under the Statute for allotment of seats considering local rural mandal as unit as aforementioned cannot be justified on the ground that para 6 of the Presidential Order being broadly followed by maintaining the ratio 42:36:22 among the universities in the State. We are also unable to agree with the contention that the said procedure was adopted to give effect to the directive principles of State policy provided for in Part IV of the Constitution of India. The Statute 13(3) of Act, 2008 offends the Articles 14, 15 and 371(D) of the Constitution and also the Presidential Order, 1974. For the reasons aforementioned, we declare the Statute 13(3) framed under Rajiv Gandhi University of Knowledge Technologies Act, 2008 as illegal, arbitrary and unconstitutional as violative of Article 371 (D) of the Constitution of India and the provisions of the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 and accordingly, we struck down the same. Consequently, the writ petition is allowed. There shall be no order as to costs. ___________________ R.KANTHA RAO,J (Per GR,J) I respectfully concur with the conclusions recorded by my Learned brother Hon’ble Sri Justice R. Kantha Rao, that the writ petition should be allowed and Statute 13 (3) framed under the Rajiv Gandhi University of Knowledge Technologies Act, 2008 (for short ‘the 2008 Act) must be declared invalid for being arbitrary and violative of Article 371-D of the Constitution and the provisions of the Andhra Pradesh Educational Institutions (Regulation of Admissions) order, 1974 (for short ‘the Presidential Order’). I however wish to record brief reasons for doing so, in supplementation of the reasons recorded by my Learned brother. Clause (10) of Article 371-D of the Constitution enjoins that the provisions of the Article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force. The provisions of a Presidential Order, issued in exercise of the powers under Clauses (1) and (2) of Article 371-D are thus enjoined to prevail over the provisions of any law for the time being in force including a law made by a State in exercise of its authorized field of Legislation either under List-II or List-III of the Seventh Schedule to the Constitution. Relevant provisions of the Presidential Order: Paragraph-9 reiterates the non-obstante trajectory of Article 371- D (10) by providing: 9. Order to have over-riding effect:-- The provisions of this Order shall have effect notwithstanding anything contained in any statute, ordinance, rule, regulation or other order (whether made before or after the commencement of this Order) in respect of admissions to any University or to any other educational institution subject to control of the State Government. Paragraphs 5 and 6 enumerate provisions for reservation of seats in non-statewide Universities and educational institutions and in statewide Universities and statewide educational institutions respectively. Paragraph 2 (f) defines statewide university by specifying certain universities. By G.S.R. 602 (E) dated 27-08-2009 the President issued an order amending paragraph 2 (f) to specify the Rajiv Gandhi University of Knowledge Technologies (for short ‘the University’), constituted under the 2008 Act as a ‘statewide University’; in addition to Universities already specified. In view of the provisions of the Presidential Order, as amended by G.S.R. 602 (E) dated 27-08-2009 (re-published by the State Government vide G.O.Ms.No. 550 General Administration (SPF-A3) Department dated 13-11-2009), admissions to 85 % of the available seats in every course of study provided by the University must be reserved in favour of local candidates and allocated among the local candidates in relation to the local areas specified in Sub-paragraph (1); Sub-paragraph (2) and Sub-paragraph (3) of Paragraph 3 (of the Presidential Order), in the ratio of 42:36:22, respectively. Paragraph 3 of the Presidential Order sets out several Districts in the State falling within the three local areas. Paragraph 4 defines the expression ‘local candidate’ by specifying residence and other qualifications that entitle a candidate to be treated as a ‘local candidate’. Paragraph 4 provides: 4. Local Candidate:--(1) A candidate for admission to any course of study shall be regarded as a local candidate in relation to a local area--- (a) if he has studied in an educational institution or educational institutions in such local area for a period of not less than four consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared in the relevant qualifying examination; or (b) where, during the whole or any part of the four consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared for the relevant qualifying examination, he has not studied in any educational institution, if he has resided in that local area for a period of not less than four years immediately preceding the date of commencement of the relevant qualifying examination in which he appeared or as the case may be, first appeared. {2} A candidate for admission to any course of study who is not regarded as a local candidate under