* THE HON'BLE MR JUSTICE J.CHELAMESWAR THE HON'BLE MR JUSTICE GHULAM MOHAMMED AND THE HON'BLE MR JUSTICE GODA RAGHURAM + WRIT APPEAL NO : 757 of 2005, W.P.Nos. 4880, 5175, 5896, 6003 & 6244 of 2005 % THURSDAY, TWENTYFIRST DAY OF APRIL, TWO THOUSAND FIVE # Md. Abdul Azeez Asad, S/o. M.A. Hakeem, Resident of 12-2-727/2, Rethi Bowli, Mehdipatnam Reing Road, Hyderabad and Others Petitioners Versus $ State of Andhra Pradesh represented by its Principal Secretary to Govt. Health, Medical and Family Welfare Department, Secretariat, Saifabad, Hyderabad and others. Respondents ! Counsel for the petitioner: Sri Nuty Rama Mohan Rao, Ms Gottipati Kavitha, ^ Counsel for the respondents: Sri J.Sudheer, Special Government Pleader, for the Government and NTR University of Health Sciences Sri S.Niranjan Reddy, for Medical Council of India Sri G. Vidyasagar Sri K.Srinivasa Murthy,Counsel for impleaded respondents. < Gist : `` >Head Note: ? (1) 2002(2) ALD 409 (2) (2005) 1 SCC 394 (3) AIR 1996 SC 1378 (4) 2002(4) ALD 389 (5) (1969) 1 SCC 839 (6) 1992 Supp.(3) SCC 217 (7) 1995(1) ALT 275 (8) AIR 1955 SC 661 (9) (1975) (1) SLR 20 (10) 1998 (5) ALD 57 DB (11) AIR 1986 SC 468 (12) (1985) 1 SCC 68 (13) AIR 1985 SC 218 (14) (1984) 4 SCC 450 (15) 2000(2) ALD 532 (16) (2003) 5 SCC 350 (17) AIR 2000 AP 308 (18) AIR 1959 SC 149 (19) 1986 Supp. SCC 285 (20) AIR 1998 SC 795 (21) (1979) 3 SCC 165 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY , THE 21ST DAY OF APRIL TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE J.CHELAMESWAR THE HON'BLE MR JUSTICE GHULAM MOHAMMED AND THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT APPEAL NO : 757 of 2005 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 15/03/2005 in WPMP NO.6872 OF 2002 IN WP NO : 5175 OF 2005 on the file of the High Court.) Between: Md. Abdul Azeez Asad, S/o. M.A. Hakeem, Resident of 12-2-727/2, Rethi Bowli, Mehdipatnam Ring Road, Hyderabad. ..... APPELLANT AND 1 State of Andhra Pradesh represented by its Principal Secretary to Govt. Health, Medical and Family Welfare Department, Secretariat, Saifabad, Hyderabad. 2 NTR University of Health Sciences represented by its Registrar, Vijayawada. 3 Medical Council of India, Aiwan-e-Ghalaeb Marg, Kotla Road, Opp : Mathasundari College (Women) New Delhi - 110 002. Rep by its Secretary .....RESPONDENTS Counsel for the Appellant: MR.NUTY RAM MOHAN RAO Counsel for the Respondent No.1: ADVOCATE GENERAL FOR Mr. J. Sudheer,Special Government Pleader for M&H Counsel for the Respondent No.2: Smt.Y.Padmavathi Counsel for the Respondent No.3: Mr. S. Niranjan Reddy WRIT PETITION NO : 4880 of 2005 Between: 1 Maheshwar Lakki Reddy, s/o L.Ramakrishna r/o Hyderabad. 2 Ram Prasada Reddy Akkamgari, s/o Janga Reddy, r/o Mallepally Village, Sangareddy, Medak District. 3 D.Prasada Reddy, s/o D.Shankar Reddy, r/o Hyderabad. 4 Gopikrishna R. s/o R.Subba Rao, r/o Hyderabad. 5 K.Uday Madhav, s/o Perumalu Gupta, r/o Bheemavaram, E.G.District. ..... PETITIONERS AND 1 State of Andhra Pradesh rep., by its secretary, Health, Medical and Family Welfare Department, Secretariat, Hyderabad. 2 NTR University of Health Sciences rep., by its Registrar, Vijayawada. 3 Gudipati Anantharam son of G.Ramatheertharao,Hyderabad. (R-3 impleaded vide order dated 08-04-05 in WPMP.7387 of 2005) .....RESPONDENTS 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 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 allowing sliding in different branches in admissions to Post-graduate Medical Courses in favour of reserved category candidates as arbitrary, illegal and violative of Article 14 and the statutory rules framed for admission into Post-graduate Medical Courses; b) direct the respondents to fill up the post- graduate Medical seats purely based upon merit and the resultant vacancies should be filled up strictly in accordance with merit; and c) declare the action of the respondents in following 100 point roster for the purpose of admission into post-graduate Medical Courses as arbitrary, illegal and violative of Article 14 of the Constitution of India; d) declare the action of the respondents in following 100 point roster for the purpose of admission into post-graduate Medical Courses as arbitrary, illegal and violative of Article 14 of the Constitution and pass such order or further orders as are deemed fit and proper in the circumstances of the case. Counsel for the Petitioners: MR.NUTY RAM MOHAN RAO Counsel for the Respondent No.1: ADVOCATE GENERAL FOR Mr. J. Sudheer,Special Government Pleader for M&H Counsel for the Respondent No.2: Smt.Y.Padmavathi Counsel for the Respondent Nos.3: Mr.K.S.Murthy and G.Vidya Sagar WRIT PETITION NO : 5175 of 2005 Between: 1 Md.Abdul Azeez Asad S/o. M.A.Hakeem, Resident of 12-2-727/2, Rethi Bowli, Mehdipatnam Ring Road, Hyderabad. 2 Suman S. S/o. Vijaya Kumar (HM), Khammam. 3 B.Sudershan Reddy, S/o. B.V.Subba Reddy,43/262/1/2, Sankalbad, Kurnool. ..... PETITIONERS AND 1 State of Andhra Pradesh rep. by its Principal Secretary to Govt, Health, Medical & FW Department Secretariat, Saifabad, Hyderabad. 2 NTR University of Health Sciences rep. by its Registrar, Vijayawada. 3 Midical Council of India, Aiwan-e-Ghaleb Marg, New Delhi - 110 002. rep. by its Secretary. .....RESPONDENTS 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 issue a Writ, order or direction: more Particularly, one in the nature of a Writ of Mandamus: a) Declare that the rules framed and published through Notification No.18 of A.P.Gazette Extraordinary issue dated 25.02.2005 through which the preparation of seat matrix rules for post-graduate courses has been notified as bad in law; Alternatively, declare that the 2nd respondent University cannot adopt, follow or regulate the post- graduate admissions for the academic session 2005-06 based thereon and consequently, direct 1st and 2nd respondent-university undertake the admission process afresh without any reference to the notification contained in G.O.Ms.No.44 Medical, Health & Family Welfare (E.II) Department, dated 25.02.2005; (b) By declaring the action of the respondents in allowing sliding in admissions to different branches of Post-graduate Medical Courses in favour of reserved category candidates as arbitrary, illegal and violative of Article 14 and the statutory rules framed for admission into Post-graduate Medical Courses; (c) Direct the respondents to fill up the post-graduate Medical seats purely based upon merit including the resultant vacancies, and (d) Declare the action of the respondents in following the 100 point roster for the purpose of admission into post-graduate Medical Courses as arbitrary, illegal and violative of Article 14 of the Constitution of India; and pass such order or further orders Counsel for the Petitioners: MR.NUTY RAM MOHAN RAO Counsel for the Respondent No.1: ADVOCATE GENERAL Counsel for the Respondent No.2: Dr.Y.Padmavathi Counsel for the Respondent No.3: Mr. S. Niranjan Reddy WRIT PETITION NO : 5896 of 2005 Between: J.Gopalakrishna S/o.J.Srinivas Rao, R/o.Hyderabad. ..... PETITIONER AND 1 State of A.P., Rep by its Secretary Health, Medical and Family Welfare Dept Secretariat , Hyderabad. 2 NTR University of Health Sciences Rep by its Registrar Hyderabad. 3 Medical Council of India, Rep by its Secretary Aiwan-e-Ghaleb Marg, Kotla Road, Opp: Mathasundari College,(Women) New Delhi. 4 T.N.Sateesh son of T.Nanjundra Rao, Kavurnagar,Anantapur District. (R-4 impleaded vide orders dated 08-04-2005 in WPMP No.8933 of 2005) .....RESPONDENTS 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 Maybe pleased to issue a writ, order or direction; more particularly one in the nature of Writ of Mandamus: a). Declare the action of the NTR University of Health Sciences in providing for class reservation in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and the other categories even within the 15% of Unreserved segment of seats as unconstitutional and illegal and consequently, set aside all such provisional admissions made by the NTR University of Health Sciences in this regard and consequently, direct the NTR University of Health Sciences to grant admission in favour of the writ petitioner duly taking into account his merit ranking No.102 at the post-graduate entrance examination conducted by it for the academic session 2005-006; b). Declare that the rules framed and published through Notification No.18 of A.P. Gazette Extraordinary issue dt.25-02-2005 through which the preparation of seat matrix rules for post-graduate courses has been notified as bad in law; Or alternatively, declare that the 2nd respondent University cannot adopt, follow or regulate the post-graduate admissions for the academic session 2005-06 based thereon and consequently, direct the 2nd respondent University to undertake the admission process afresh without any reference to the notification contained in G.O.ms.No.44 Medical, Health & Family Welfare (E.II) Department, dated 25-02-2005; c). By declaring the action of the respondents in allowing sliding in admissions to different branches of Post-graduate Medical Courses in favour of reserved category candidates as arbitrary, illegal and Violative of Article 14 and the statutory rules framed for admission into Post- Graduate Medical Courses; d).Direct the respondents to fill up the post-graduate Medical seats purely based upon merit including the resultant vacancies, and e) Declare the action of admission in following the 100point roster for the purpose of admission into Post-graduate Medical Courses as arbitrary, illegal and violative of Article 14 of the Constitution of India and pass such other order or orders . Counsel for the Petitioner: MR.NUTY RAM MOHAN RAO Counsel for the Respondent No.1: ADVOCATE GENERAL Counsel for the Respondent No.2: Dr.Y.Padmavathi, Counsel for the Respondent No.3: Mr. S. Niranjan Reddy Counsel for the Respondent No.4: Mr.N.A.Ramchandra Murthy WRIT PETITION NO : 6003 of 2005 Between: Vempati Sirisha, D/o. V.S.Prakash Sharma, H.No.3-5-1093/10, Venkateswara Colony, Narayanaguda, Hyderabad. ..... PETITIONER AND 1 State of A.P., rep. by its Secretary, Medical & Family Welfare Department Secretariat, Hyderabad. 2 NTR University of Health Sciences, rep. by its Registrar,Vijayawada. .....RESPONDENTS 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 issue an appropriate Order Writ or Direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents in allowing sliding in different branches in admissions to Post-Graduate Medical Courses in favour of reserved category candidates and in following 100 points roster for the purpose of admission into P.G Medical Course (Master's Degree) as arbitrary, illegal, and violative of Article 14 of the Constitution of India and consequently direct the respondents to fill up the post graduate Medical seats purely based upon merit and the resultant vacancies should be filled up in accordance with merit, and pass such other order or orders. Counsel for the Petitioner: SMT.KAVITHA GOTTIPATI Counsel for the Respondent No.1: ADVOCATE GENERAL for GP for M&H Counsel for the Respondent No.2 Dr.Y.Padmavathi WRIT PETITION NO : 6244 of 2005 Between: T.N. Sateesh, S/o. T. Nanjunda Rao, Hindu, R/o.H.No. 6/2/222, Kavurnagar, Anantapur. ..... PETITIONER AND 1 Govt. of Andhra Pradesh, Rep by its Secretary, Health, Medical and Family Welfare Department, Secretariat, Hyderabad. 2 NTR University of Health Sciences , rep by its Registrar, Vijayawada. 3 Medical Council of India , Aiwan-e-Ghaleb Marg, Kotla Road, Opp : Mathasundari College, (Women) New Delhi - 110 002. Rep by its Secretary .....RESPONDENTS 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 appropriate order or direction more particularly one in the nature of Writ of Mandamus : a) To declare that the action of the NTR University of Health Sciences in providing for class reservation in favour of scheduled Castes, scheduled Tribes, Backward Classes and other categories even within the 15 % of unreserved segment of seats as unconstitutional and illegal and consequently set aside all such provisional admissions made by the NTR University of Health Sciences in this regard and consequently direct the NTR University of Health Sciences to grant admission in favour of the writ petitioner duly taking into account his merit ranking No. 76 at the post-graduate entrance examination conducted by it for the academic session 2005-06 b) To declare that the rules framed and published through Notification No. 18 of A.P. Gazette Extraordinary issued vide G.O.Ms.No. 44, dated 25-2-2005 through which the preparation of seat matrix rules for post-graduate courses has been purpose of admission as illegal, inoperative and unconstitutional and consequently direct the second respondent University to implement the Roster point on subject wise and to process afresh without any reference to the notification contained in G.O.Ms.No. 44 Medical, Health&Family Welfare (E.II) Department, dated 25- 2-2005. c) To declare that the action of the respondents in allowing sliding in admissions to different branches of post graduate Medical Courses in favour of the reserved category under Clause VII and VIII of para IV of G.O.Ms.NO. 44, Health, Medical & Family Welfare (E2) Department, dt. 25-2-2005 as unconstitutional and in violation of Articles 14 & 16 of the constitutional of India and consequently direct the respondentsj to fill up the seats purely on the basis of merit including the resultant vacancies. d) and to allot the seat to the petitioner on the basis of merit by giving an opportunity to exercise option and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and consequently direct the respondents Counsel for the Petitioner: MR.N.A.RAMACHANDRA MURTHY Counsel for the Respondent No.1: ADVOCATE GENERAL Counsel for the Respondent No.2: Dr.Y.Padmavathy Counsel for the Respondent No.3: Mr. S. Niranjan Reddy The Court made the following :ORDER: (Per: Hon’ble Sri Justice Goda Raghuram) This is professional courses admissions time in the State. Inevitably, it is the time for the complimentary annual event – challenges to the admission programmes to professional courses of study. The accommodation of the numerous, competing and conflicting claims to special treatment and opportunities for admissions to higher courses of professional studies, engender very complex adjustments for accommodating the several sectoral interests. The complexities increase every year and fertilise the contestable positions. The litigation has thus become regnant. The latest conflict in this area is presented to us. The conflict has a legal disposition. We, therefore, proceed to adjudicate. This batch of cases includes five (5) writ petitions – W.P. Nos. 4880, 5175, 5896, 6003 and 6244 of 2005 and W.A. No. 757 of 2005. The appeal is directed against an interlocutory order dated 15.03.2005 of a learned single Judge of this Court, rejecting W.P.M.P. No.6872 of 2005 in W.P. No. 5175 of 2005 wherein the appellants-writ petitioners sought stay of counselling (for Post-Graduate Medical seats) scheduled to be conducted from 14-03-2005. All the petitioners are Medical Graduates desirous of pursuing Postgraduate Medical education. The N.T.R. University of Health Sciences (for short ‘the Health University’) by the notification dated 24.01.2005 notified the process of admissions to Postgraduate Medical Degree and Diploma courses for the academic year 2005- 2006. The entrance test was conducted on 27.02.2005. All the petitioners appeared at the entrance test. The results of the test were published on 03.03.2005. The five petitioners in W.P.No. 4880 of 2005 obtained rank Nos. 72, 176, 198, 136 and 147 respectively at the entrance examination. The three petitioners in W.P.No. 5175 of 2005 obtained rank Nos. 171, 334 and 116 respectively. The sole petitioner in W.P.No. 5896 of 2005 secured rank No.102. The petitioner in W.P.No. 6003 of 2005 secured rank No.483 and the petitioner in W.P.No. 6244 of 2005 rank No.76. In brief, the grievance of the petitioners is that the process and procedure adopted by the Health University for admission to Postgraduate Medical Degree and Diploma courses offends their right to equal opportunity in the matter of (higher professional) education, guaranteed under Articles 14 and 15 of the Constitution and that the Rules framed by the State Government to regulate the admissions procedure, subvert the equality injunctions of the constitution and are patently irrational, arbitrary and inoperable. The petitioners seek invalidation of the Rules issued by the State Government in G.O.Ms. No.44, Health, Medical and Family Welfare (E-2) Department, dated 25.02.2005 published in A.P. Gazette of even date. These matters came to be listed before the Full Bench on a reference dated 12.04.2005 made by a learned Division Bench of this court. One of the substantive issues that requires adjudication in these writ petitions is as to the legality of the adoption by the State Government and the Health University, of the 100 point roster, to all the Postgraduate Medical Degree and Diploma courses (such as Anaesthesia, Anatomy, Bio-chemistry, Forensic Medicine, General Surgery, Ophthalmology, Paediatrics, Pathology, Pharmacology and the like. I n Preeti Puranik v N.T.R. University of Health Sciences, A.P.(), a Division Bench of this court upheld the validity of application of the 100 point roster to Postgraduate Medical admissions. For the current academic year, not only was the 100 point roster applied to the Postgraduate Medical admissions but (under Rules issued in G.O.Ms.No.44, dated 25.02.2005) a format called “Seat Matrix” was applied whereby the 100 point roster was applied (in a running cycle) to all the several distinct, dissimilar and unconnected disciplines of Postgraduate Medical education, both Degree and Diploma courses en bloc, on the basis of an asserted alphabetical arrangement of the several courses of study, including an alphabetical arrangement of the medical colleges in which specified seats in each discipline, are available, for each of the three local areas of the State (Andhra University, Osmania University and Sri Venkateswara University). Having regard to the decision of the Division Bench in Preeti Puranik’s case (1 supra), the correctness of which was doubted by the Division Bench, the matters came to be referred to the Full Bench. We have heard Sri Nuty Rama Mohan Rao, learned counsel for the petitioners, Sri J.Sudheer, learned Special Government Pleader for the State Government and the N.T.R. University of Health Sciences, Sri S.Niranjan Reddy, learned counsel for the Medical Council of India, Sri G.Vidya Sagar and Sri K. Srinivasa Murthy for selected candidates who have impleaded themselves as respondents in some of the writ petitions. THE RELEVANT AND GOVERNING STATUTORY AND OTHER PROVISIONS: (A) The Andhra Pradesh (Regulation of Admissions) Order, 1974 :- (for short ‘the Presidential Order’) The Presidential Order is issued (by the President of India) in exercise of powers conferred by Clauses (1) and (2) of Article 371-D of the Constitution of India. The provisions of the Presidential Order have over-riding effect over any other provision of the Constitution and any other Law for the time being in force (Clause (10) of Art. 371-D). Paragraph-2(a) defines the expression “available seats” to mean – the number of seats provided in that course for admission, excluding those seats reserved for candidates from outside the State. Paragraphs-2(e) and (f) define “State-wide Educational Institutions” and “State-wide Universities” respectively, for which a separate scheme of reservation for local candidates is provided (in the Schedule to the Presidential Order). In so far as relevant and material for the purposes of this lis, Dental, Neuro Surgery, Public Health, Radio Diagnosis and Radio Therapy Departments of the Osmania Medical College, Hyderabad and the Siddhardha Medical College, Vijayawada, are specified in the schedule to the Presidential Order to be State-wide Educational Institutions. Paragraph –5 mandates that admission to 85% of the available seats in every course of study, provided by any of the universities or educational institutions (which are subject to the control of the State Government) in each of the three local areas, shall be reserved in favour of the local candidates in relation to the relevant local area. Paragraph–6 of the Presidential Order specifies the reservations in State-wide universities and State-wide educational institutions and mandates that admission to 85% of the available seats in every course of study provided by a State-wide university or a State-wide educational institution shall be reserved in favour of local candidates and allocated among the local candidates in relation to the three local areas (Andhra University, Osmania University and Sri Venkateswara University), in the ratio 42:36:22 respectively. Paragraph –10, saves the powers of the State Government or competent authority to make special provisions for reservations in admissions, in favour of women, socially and educationally backwards classes of citizens, Scheduled Castes and Scheduled Tribes, to the extent such provisions are compatible with the Presidential Order. (B) G.O.P. No. 646 :- In G.O.P. No. 646, dated 10.7.1979 the State Government issued consolidated instructions for implementing the provisions of the Presidential Order. Annexure-III of G.O.P. No. 146 details the procedure for implementing the provisions of the Presidential Order in respect of non-State-wide universities and educational institutions subject to the control of the State Government. Annexure-IV sets out the procedure for implementation of the provisions of the Presidential Order, in respect of State-wide universities and State-wide educational institutions that are subject to the control of the State Government. (C) The Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (Act 5/83) :- (for short ‘the 1983 Act’) According to Sec. 3 admission into Medical and Engineering Colleges shall however be only on the basis of ranking assigned in the common entrance test. Sec.3(2) mandates that admission into educational institutions shall be subject to such rules as may be made by the Government in regard to reservation of seats to the members belonging to SC, ST and BC communities and other categories of students as may be notified by the Government in this behalf and shall also be subject to the Presidential Order. Sec.12 provides over-riding effect to the provisions of the 1983 Act notwithstanding anything inconsistent there with contained in any other law for the time being in force. Sec.15 enables the State Government to make rules to carry out all or any of the purposes of the Act. (D) The Andhra Pradesh Medical Colleges (Admission into Post Graduate Medical Courses) Rules 1997 :- (for short ‘the 1997 Rules’) The 1997 Rules were issued by the State Government in G.O.Ms.No. 260, Health, Medical & Family Welfare (E-2) Department, dated 10.7.1997. Rule-2 specifies that the number of seats in Post Graduate Degree and Diploma courses in various disciplines in each Medical College shall be notified by the Health University every year. Under Rule 3(1) 15%, 6% and 25% of the total number of seats notified in each group for Degree and Diploma courses separately shall be reserved for SC, ST and BC communities respectively. Under Rule3(2) 15% of seats in clinical subjects and 30% seats in non-clinical subjects in each group for Degree and Diploma courses separately are reserved for non-service candidates in each category under service quota. Even candidates selected on merit in the respective categories are to be counted against service quota. Rule-4 reiterates the provisions of the Presidential Order and sub-rule (G) thereof proceeds to define which category of students are eligible to apply for admission to 15% of unreserved seats under the Presidential Order. Rules-5 to 9 spell out several housekeeping provisions like the mode and method of obtaining and submitting applications, academic eligibility for applying for PG courses, the power of the Health University to issue notifications inviting applications, the prescriptions regarding entrance test and the preparation of merit list. Rule-10 sets out the method of conducting selections, of candidates for the several seats in different disciplines in Post Graduate Medical Degree and Diploma courses. Sub-rules (iv), (v)(a) & (b) and (vi)(a)&(b) of Rule-10 being relevant and material, are extracted herein below: “10 SELECTIONS: (iv) On the dates notified the candidates shall be called in order of merit by the selection committee and ask them to opt for subject of the candidates choice in the then available subjects in the college. The selection committee will issue the selection order immediately. The selection will be made only from among the candidates who physically present themselves when their hall ticket numbers are called out in order of merit. (v) (a) Claims of the