*THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY +WRIT PETITION NO : 16657 OF 2008 % 24-09-2008 # Dr.(Miss) Sepuri Madhuri PETITIONER VS. $ 1. Dr.NTR University of Health Sciences, A.P., Hyderabad rep, by its Registrar & others. RESPONDENTS ! Counsel for the Petitioner: DR. K.LAKSHMI NARASIMHA ^ Counsel for the Respondent No.1 : SRI D.V.NAGARJUNA BABU, Standing Counsel. Counsel for the Respondent No.3: SRI G.RAVI MOHAN Counsel for the Respondent No.2: GP FOR HEALTH, MEDICAL AND FAMILY WELFARE. < Gist: > Head Note: ? CITATIONS: 1. (2000) 9 Supreme Court Cases 115 2. 2002 (1) ALT 443 3. 1995 (1) An.WR 156 4. 2005 (3) ALT 252 (F.B.) 5. (1988) 4 Supreme Court Cases 532 6. (2003) 5 Supreme Court Cases 350 7. 2002 (6) ALD 331 (DB) 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 : 16657 of 2008 Between: Dr.(Miss).Sepuri Madhuri, MD (Bio Chemistry) D/o.Dr.S.Satyamurthy, Bio-Chemistry, Andhra Medical College,Visakhapatnam R/o.E- 5, Krishi Sagar, Buddavarapu Gardens, Krishna Nagar,Maharanipeta, Visakhapatnakm-530002 ..... PETITIONER AND 1 Dr.N.T.R.University of Health Sciences, Andhra Pradesh Vijayawada, Rep.by its Registrar, 2 The STate of Andhra Pradesh, Health ,Medical and Family Welfare Department, Rep.by its Principal Secretary to Government of Andhra Pradesh, Secretariate, Andhra Pradesh, Hyderabad 3 Dr..Yeluri Sudha Rani, C/o.Dr.NTR University of Health Sciences, AP 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 may be pleased to issue a writ of order preferably in the nature of writ of mandamus and declare clause 7.6 of the Prospects for Admission to Super speciality (Second PG) courses in the Medical colleges of Andhra Pradesh for the year 2008-09 issued by the 1st respondent as illegal, wholly without power or jurisdiction and contrary to AP Regulation of Admission to Super Specialities in the Medical college Rules,1983 issued vide G.O.Ms.No.740,Medical & Health (E2) department dated 22.11.1983 and consequently set aside the selection of the 3rd respondent for the course of D.M. (Endocrinology) and consequently direct the 1st respondent to accord the said seat to this petitioner. Counsel for the Petitioner: DR.K.LAKSHMI NARASIMHA Counsel for the Respondent No.1: MR.D.V.NAGARJUNA BABU Counsel for the Respondent No.3: MR. G.RAVI MOHAN The Court made the following : ORDER: Dr.NTR University of Health Sciences, A.P, Vijayawada-1st respondent issued notiﬁcation for admission to Super Speciality Courses (DM and M.Ch.) for the Academic Session 2008-2009. The method of selection for admission of candidates to Super Speciality Courses (DM & M.Ch.) for the Academic Session 2008- 2009 is by way of entrance test. Dr.(Miss) Sepuri Madhuri- petitioner and Dr.Yeluri Sudha Rani-3 rd respondent appeared for the entrance test held on 29.06.2008. Both of them secured 66 marks in the entrance test. They competed for admission for a seat in DM (Endocrinology). The eligibility under relevant qualifying examination for admission in DM (Endocrinology) is MD (General Medicine or Paediatrics or Biochemistry). The petitioner as well as the 3rd respondent got eligibility for admission in DM (Endocrinology) since they did MD in Biochemistry. Since both secured 66 secured marks in the entrance test, there was a tie between the petitioner and the 3rd respondent. In view of the tie, the 1st respondent University has invoked Rule 7.6 of the prospectus, which reads that if two candidates get equal marks in the entrance test, marks obtained in MBBS upto two decimal places shall be taken into consideration for ﬁxing the merit of the candidates. By invoking the Rule 7.6 of the prospectus, the 1st respondent University selected the 3rd respondent for the seat in DM (Endocrinology) in Andhra Medical College, Visakhapatnam. According to the petitioner, Rule 7.6 of the prospectus is contrary to Rule 7 of the A.P. Regulation of Admission to Super Specialities in the Medical Colleges Rules, 1983 (for short, ‘the Super Specialities Rules, 1983’), which are framed by the Governor in exercise of powers conferred by Section 3 read with sub-section (1) of Section 15 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (for short, ‘the A.P. Act 5 of 1983’) and therefore, the seat in DM (Endocrinology) allotted to the 3rd respondent is liable to be set aside and instead the petitioner is to be given the seat in DM (Endocrinology). The petitioner asserts that she secured more number of marks i.e. 231 marks out of 400 marks in medicine subjects in MBBS and whereas the 3rd respondent secured only 216 marks out of 400 marks in medicine subjects in MBBS and therefore, she is to be preferred in view of Rule 7 of the Super Specialities Rules, 1983. Hence, she ﬁled the writ petition with a prayer to declare Rule 7.6 of the prospectus for admission to Super Speciality (Second PG) Courses in the Medical Colleges of Andhra Pradesh for the year 2008-2009 as illegal and contrary to the Super Specialities Rules, 1983 and consequently set aside the selection of the 3rd respondent for the course of DM (Endocrinology) and to accord the seat to her. 2. Notice before admission came to be ordered on 01.08.2008. 1st respondent ﬁled counter-aﬃdavit. Y.Kotaiah, Registrar In-charge of Dr.NTR University of Health Sciences, Vijayawada, has sworn to the counter-aﬃdavit. It is stated in the counter-aﬃdavit that 1 st respondent University was established in the year 1986 after the legislation of NTR University of Health Sciences Act, 1986 (for short, ‘the Act 6 of 1986’). Before establishment of the 1st respondent University, the State Government framed rules in the year 1983 in respect of admission into Super Speciality Courses in various Medical Colleges and at that point of time only Andhra Medical College (A.U.Area) and Osmania Medical College (O.U. Area) were oﬀering Super Speciality Courses. Prior to the enactment of NTR University of Health Sciences Act, 1986, the selection committee constituted by the State Government was the competent authority to ﬁll-up the seats. After establishment of 1st respondent University, the State Government has not framed any rules or amended the Super Specialities Rules, 1983 prescribing the procedure to be followed by the 1st respondent University while making admissions into Super Speciality Courses. Therefore, 1st respondent University evolved a rational procedure and has been consistently following the same from its very inception. The ﬁrst counseling for admission into Super Speciality Courses was held on 27.07.2008. In the counseling, two seats were ﬁlled up in the Super Speciality Course of DM (Endocrinology). As per the prospectus, two seats were shown, one in Osmania Medical College, Hyderabad and another in Andhra Medical College, Visakhapatnam. The merit list is prepared based on the procedure prescribed in the prospectus for admission to Super Speciality Courses (DM/M.Ch.) for the Academic Session 2008-2009. Rule 7.5 deals with preparation of merit list of qualiﬁed candidates and Rule 7.6 deals with breaking tie in case of two candidates getting equal marks in the entrance test. The admission rules are being following for the last 13 years i.e. from 1993-94. The 3rd respondent Dr.Sepuri Madhuri got 59.80 marks in MBBS and whereas the petitioner got 59.68 marks in MBBS and both the candidates secured 66 marks in the entrance test conducted for Super Speciality (DM/MCh.) Courses for the Academic Year 2008-2009. As per Rule 7.6 of the prospectus, if two candidates got equal marks in the entrance test, marks obtained in MBBS upto two decimal places shall be taken into consideration. Hence, the admission made in respect of the 3rd respondent is in accordance with the prospectus in the absence of the Rules framed by the State Government or amending the Super Specialities Rules, 1983 prescribing speciﬁc procedure applicable to the admissions into Super speciality courses in the 1st respondent University. After enactment of the Act 6 of 1986, the 1st respondent University evolved a rational procedure and has been following the same consistently. 3. 3rd respondent ﬁled counter-aﬃdavit. It is stated in the counter-aﬃdavit that the 1 st respondent University is justiﬁed in allotting seat to her by invoking Rule 7.6 of the prospectus. It is stated in the counter-aﬃdavit that the petitioner having accepted the terms and conditions of the prospectus, appeared for the entrance test and therefore, she has no right to question the rules prescribed in the prospectus. 4. The petitioner ﬁled additional aﬃdavit detailing the marks secured by her and the 3rd respondent in the subjects of medicine in MBBS. Relevant portion of the additional aﬃdavit needs to be noted and it is thus: “….In the present case there was a tie between myself and the 3rd respondent in the entrance test. While due to inadvertence I could not mention my marks in the Medicine Subject of MBBS. This is neither deliberate nor willful. Further, I have ascertained the marks of the 3rd respondent in the subject of Medicine in MBBS. I have secured 231 marks out of 400 in medicine subject in MBBS, whereas the 3rd respondent had secured only 216 marks out of 400 in the subject of Medicine in MBBS. Hence, in terms of the Rule as I got more marks in the medicine subject than that of the 3rd respondent, I am entitled for admission in DM Endocrinology. This fact may kindly be taken on record and appropriate orders may kindly be passed.” 5. When the writ petition came up for admission hearing, with the consent of counsel for the parties, it is taken up ﬁnal disposal. 6. Heard learned counsel appearing for the petitioner and learned Standing Counsel of Dr.NTR University of Health Sciences, Vijayawada appearing for the 1st respondent and learned counsel appearing for the 3rd respondent. 7. Learned counsel appearing for the petitioner submits that the Rule 7.6 of the prospectus is contrary to Rule 7 of the Super Specialities Rules, 1983 and since the Super Specialities Rules, 1983 are framed by the Governor in exercise of powers conferred by Section 3 read with sub-section (1) of Section 15 of the A.P. Act 5 of 1983, the latter Rules shall prevail over the rules framed by the 1st respondent University and in which case the petitioner is entitled to a seat in DM (Endocrinology) in preference to the 3rd respondent. In support of his submissions, reliance has been placed on the following decisions: 1) Rajiv Kapoor v. State of Haryana[1] 2) Dr.A.Rajakaran Reddy v. NTR University of Health Sciences[2] 3) K.Madhuri v. University of Health Sciences[3] 4) Md.Abdul Azeez Asad v. State of A.P.[4] 5) Fazal Ghapoor v. Principal, Osmania Medical College[5] 6)NTR University of Health Sciences v. G.Babu Rajendra Prasad[6] 7)Dr.B.G.V.Giridhar v. Dr.Ch.Ramakrishna Rao[7] Learned counsel appearing for the petitioner laid much emphasis on para.9 of the judgment in Rajiv Kapoor’s case (1 supra), which reads as hereunder: “9. In our view, the High Court fell into a serious error in sustaining the claim of the petitioners before the High Court that selection and admissions for the course in question have to be only in terms of the stipulations contained in Chapter V of the prospectus issued by the University. Such an error came to be committed in assuming that the Government had no authority to issue any directions laying down any criteria other than the one contained in the prospectus and that the marks obtained in the written entrance examination alone constituted proper assessment of the merit performance of the candidates applying for selection and admission. The further error seems to be in omitting to notice the fact that the orders dated 21-5-1997, which came to be issued after the declaration of results of written entrance examination, even if eschewed from consideration the orders dated 20-3-1996 and 21-2-1997 passed in continuation of the orders of the earlier years, continued to hold the ﬁeld, since the orders dated 21-5-1997 were only in continuation thereof. Those orders dated 20-3-1996 and 21-2-1997 had, admittedly been forwarded to the University, with a request to make necessary entries in the prospectus/syllabus. 8. I n Kum.K.Madhuri’s case (3 supra), this Court held that prospectus rules, which are only administrative instructions, will not aﬀect Statutory Rules. Para.6 of the judgment needs to be noted and it is thus: “6. The rules are framed by the Governor of Andhra Pradesh by virtue of the power conferred upon him u/ S. 3 read with Section 15 of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (Act No. 5 of 1983) and in supersession of the Andhra Pradesh Professional Educational Institutions (Regulation of admission into Under- Graduate Professional Courses through Common Entrance Test) Rules, 1989. Rules 3 (1) and 7 (6) and (7) and other provisions of the regulations make one thing quite clear that admission to the professional courses should be strictly in accordance with merit. The rules contained in the prospectus are not statutory rules. They are only administrative instructions. Therefore it is. needless to state that the administrative instructions issued by the University should not impair or aﬀect in any way the statutory rules. The question is whether sub-rules (7) and (8) of Rule 11 of the prospectus rules do oﬀend the rules. Rule 11 of the prospectus rules reads thus: "11. GUIDELINES FOR OPEN METHOD OF SELECTION FOR ADMISSIONS INTO B. D. S. COURSE: - 1. The selections for B. D. S. Course shall be made at U. H. S. Oﬃce, Vijayawada on 10-10-1994 from 10. 00 a. m. onwards. 2. All the qualiﬁed candidates at the EAMCET-94 who have applied for B. D. S. may attend the selections. 3. The candidates at the time of selections will choose the college of their choice on the spot taking into consideration the vacancy positron at his/her turn. 4. The selected candidate shall submit all the original certiﬁcates and shall pay fee on the spot on the day of selections, failing which the selection of the candidate is deemed to have been cancelled. 5. If the candidates from SC/ST/BC categories are not available, the seats shall be re-allotted to the candidates under OC on the day of each selection. 6. T. A. and D. A. will not be paid to the candidates for attending the selections. 7. Candidates absented at their turn for selections shall not be considered for subsequent selection thereafter. 8. Resultant vacancies will be open to all the candidates from the rank of last selected candidate in earlier selection in the respective categories, 9. The seat is not guarantee. " As could be seen from Rule 11, sub-rule (7) provides that candidates absented at their turn for selections shall not be considered for subsequent selection thereafter; whereas sub-rule (8) provides that the resultant vacancies will be open to all the candidates from the rank of last selected candidate in earlier selection in the respective categories. The provisions of these two rules are capable of being interpreted and understood in consonance with the spirit and content of the rules. If it is permissible for the Court to interpret these two sub-rules in consonance with the rules, the statute law and the Constitutional law, such a course should be adopted by the Court without striking it down. I ﬁnd that such a course is permissible in this case. These two sub-rules should be understood and read down to mean that a candidate who absented at his turn for selection on a previous vocation without any justiﬁcation shall not be considered for subsequent selection thereafter. The facts of the case are stated above. When the University was (sic.had) proceeded to ﬁll up the vacancy, which arose after 10-10-1994, by issuing a notiﬁcation on 26-11-1994, by that time the University had the representation of the petitioner dated 15-10-1994. The candidature of the petitioner was refused to be considered solely on the ground that she was given an opportunity to appear for the interview on 10-10-1994 and she did not avail the same. There is no dispute that in the notiﬁcation issued on 26-11-1994 all the candidates who were directed to appear for the interview ﬁxed on 7-12-1994 had lower ranks than the petitioner. The object of sub-rules (7) and (8) of Rule 11 of the prospectus rules is to see that the settled matters should not be permitted to be unsettled at the instance of the candidate, though relatively more meritorious, at a belated stage and after admissions are over. The Court would have appreciated the stand of the University if vacancy arose before 15-10-1994 and that vacancy was ﬁlled up before 15-10-1994, the date on which, the petitioner made the representation. Therefore, by denying admission to the petitioner, the University would not achieve any object and its action tends (sic. would not tend) to cause injury to the public, intent. The Supreme Court in Unnikrishnan Case ( (1993) 4 SCC 111), in great elaborately, dealt With the necessity of following the rule of merit while admitting, the students to the professional and technical courses and the social objectives behind the Rule of merit of course, the said rule is subject to the protective discrimination that may be made in favour of certain categories of citizens as provided under the Constitution. Except to such limitation, the rule of merit is required to be followed by all the public authorities in the matter of admitting students to professional and technical courses. That object is not achieved by the action of the University. Even otherwise the action of the University cannot be termed as reasonable or proper. The action of the University is tainted with irrationality.” I n Dr.B.G.V.Giridhar’s case (7 supra), a Division Bench of this Court held that in case of tie between two or more students of equal merit, the marks obtained in the respective subjects, Medicine or Surgery, as the case may be, should be taken into account as per sub-rule (3) of Rule 7 of the Super Specialities Rules, 1983. Para.9 of the said judgment needs to be noted and it is thus: “9. The next question is whether the prescription made in sub- rule (3) of Rule 7 that in case of tie between two or more students of equal merit, the marks obtained in the respective subjects, Medicine or Surgery, as the case may be, should be taken into account, could be regarded as arbitrary or unreasonable. By no stretch of imagination, it can be said that the subject of Medicine or subject of Surgery could be regarded as something extraneous or irrelevant consideration to pursue super specialty course in the ﬁelds of Medicine or Surgery. The performance of the applicant in the subject of Medicine in MBBS course is undoubtedly a relevant consideration to assess his relative merit for the purpose of admitting him to the Super-speciality leading to DM (Neurology). Therefore, Rule 7(3) cannot be condemned as arbitrary or unreasonable.” 9. Learned Standing Counsel appearing for the 1st respondent University submits that the University framed admission rules for admission to Super Speciality Courses (DM and M.Ch.) for the Academic Session 2008-2009 in accordance with the powers conferred under the provisions of the Act 6 of 1986. A further submission has been made that the Super Specialities Rules, 1983 are prior to the enactment of the Act 6 of 1986 and therefore, in case of any conﬂict between the two Rules, the Rules framed under the Act 6 of 1986, shall prevail over the former Rules. 10. Learned counsel appearing for the 3rd respondent submits that the petitioner appeared for the entrance test accepting the rules prescribed in the prospectus and therefore, she cannot be permitted to challenge the said rules at this distance of time. He further submits that Chapter VI of the Act 6 of 1986 deals with the statutes, ordinances and regulations. As per Section 30 (xvi), the Executive Council shall have the power to make Statues for all or any of the matters relating to admission of students of the University. Learned counsel also refers the powers of the Executive Council as detailed in the second schedule. Much emphasis has been made laid on para. 8(2)(f) of the second schedule. Para.8 deals with the powers and functions of the Academic Council. Under this para, the Academic Council has the power to make regulations regarding the admission of students to the University. 11. A fact remains that the petitioner and the 3rd respondent secured equal marks i.e. 66 marks in the entrance test. It is also not in dispute that DM (Endocrinology) is a super speciality course. There are two sets of rules, which govern the regulation of admissions to super speciality courses in the medical colleges. The ﬁrst set of rules were framed by the Governor in exercise of powers conferred by Section 3 read with sub-section (1) of Section 15 of the A.P. Act 5 of 1983. The second set of rules are framed by the 1st respondent University in exercise of powers conferred on it under the provisions of the Act 6 of 1986. 12. In the State of Andhra Pradesh after the constitution of University of Health Sciences, which is a teaching and affiliating University, none of the other Universities oﬀer any education, training and research on the Allopathic and Indian Systems of Medicine, Dentistry, Pharmacy and Nursing. The whole of the medical education in the State of Andhra Pradesh is taken over by the University of Health Sciences with eﬀect from 7th April, 1986. Act 6 of 1986 confers exclusive powers and functions upon the University of Health Sciences to formulate and maintain uniform curriculum and system of examinations for all the Medical Colleges in the respective systems of medicine and other institutions; to conduct a common entrance examination for all the medical colleges in the respective systems of medicine, for the selection of students etc. 13. Section 8 of the Act 6 of 1986 provides for transfer of aﬃliation of certain colleges and institutions to the University. It declares that notwithstanding anything in the Andhra University Act, 1925, Sri Venkateswara University Act, 1954, the Osmania University Act, 1959, the Nagarjuna University Act, 1976, the Kakatiya University Act, 1976, and Sri Krishnadevaraya University Act, 1981, the colleges and institutions earlier aﬃliated to those Universities be disaﬃliated from the said Universities and thereupon they shall be deemed to have been aﬃliated to the University of Health Sciences. 14. Rule 7(4) of the Super Specialities Rules, 1983, deals with a situation with regard to breaking tie if two candidates get equal marks in the entrance test, which reads as under: “7.Method of selection: (1) Selection will be made by the Selection Committee constituted by the Government. (2) The selection of candidates shall be in accordance with the merit in the Entrance Test. (3) xxxxx (4) If two candidates got equal marks in the Entrance Test, marks obtained in Medicine in M.B.B.S for Medical Specialities; and marks obtained in Surgery for Surgical Specialities shall be taken into consideration to ﬁxing the merit of the candidates. (5) Marks of the candidates in order of merit and in order of Roll Number also will be displayed on the Notice Boards of the respective colleges 5 days before the actual date of selection. (6) On the dates notiﬁed, the candidates shall be selected at the Osmania Medical Colleges, Hyderabad till the seats are ﬁlled. The selection will be only from among the candidates who physically present themselves when their Roll Numbers are called out, in the order of merit. (7) Claims of the candidates will not be considered, if they are found absent when called at the time of selection. If a candidate on merit is absent for selection when he is called, the next in merit would be selected in his place. The selected candidates shall submit their original certiﬁcates to the Selection Committees and pay fees immediately. The candidate can submit the prescribed bond within 5 days from the date of commencement of course.” 15. Rule 7.6 of the Prospectus deals with the procedure with regard to breaking of