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Thursday, October 29, 2015

“In Dr Pradeep Jain case this Court has observed that in Super Specialities there should really be no reservation. This is so in the general interest of the country and for improving the standard of higher education and thereby improving the quality of available medical services to the people of India. We hope and trust that the Government of India and the State Governments shall seriously consider this aspect of the matter without delay and appropriate guidelines shall be evolved by the Indian Medical Council so as to keep the Super Specialities in medical education unreserved, open and free.”

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION


                    WRIT PETITION (CIVIL) NO.444 OF 2015

Dr. Sandeep s/o Sadashivrao Kansurkar   ... Petitioner(s)
and Others
                       Versus
Union of India and Others                    ... Respondent(s)

                               J U D G M E N T

Dipak Misra, J.
      The gravamen of grievance and the  substratum  of  discontent  of  the
petitioners in this  writ  petition,  preferred  under  Article  32  of  the
Constitution of India, is that though the primary eligibility  criteria  for
appearing  in  the  super-specialty  entrance   examination   conducted   in
different States in India for admission to D.M. (Doctorate of Medicine)  and
M.Ch. (Masters of Chirurgiae) course regard being had to  the  purpose  that
it  endows  the  students  an  excellent  opportunity  to  prosecute   super
specialty subjects and  to  fulfill  their  aspirations  for  a  bright  and
vibrant career as well as to serve the society in the institutes  recognized
by the Medical Council of India  (MCI)  and  most  of  the  States,  namely,
Maharashtra, Uttar Pradesh, Gujarat, Rajasthan,  Delhi,  Karnataka,  Kerala,
West Bengal, Bihar and Haryana, conduct the  entrance  examination  for  the
eligible candidates from All Over India and permit them  to  appear  in  the
entrance examination, yet the States like,  Andhra  Pradesh,  Telangana  and
Tamil Nadu, confine the eligibility only to the candidates  having  domicile
in their respective States.   The  fall  out  of  the  restriction  is  that
candidates having the domicile in  the  said  States  can  appear  in  other
States’ entrance examination without any restriction and compete with  other
candidates, and the said situation creates a clear disparity, and further  a
state of inequality has  been  allowed  to  reign  in  the  aforesaid  three
States.  The dissatisfaction is further accentuated by  asserting  that  the
institutes with super-specialty courses are distributed all over India in  a
heterogeneous  manner  and  the  States   like,   Punjab,   Madhya   Prades,
Chhatisgarh,  Manipur,  Arunachal  Pradesh,  Nagaland,   Mizoram,   Tripura,
Sikkim, Uttarakhand are not having any government institutes offering super-
specialty courses and the candidates from the said States have to depend  on
the other States’ entrance examinations to seek a career in  the  discipline
they are interested, but for the restriction imposed  by  the  States  like,
Andhra  Pradesh,  Telangana  and  Tamil  Nadu,  they  are  deprived  of  the
opportunity to participate in the entrance examination and that invites  the
frown of Articles 14 and 16 of the Constitution of India.
2.    It is urged in the writ petition that the  restraint  imposed  by  the
aforesaid three States amounts  to  reservation  in  respect  of  the  post-
graduate level; and as far as the  super-specialty  courses  are  concerned,
the question of reservation based on residence or  institutional  preference
is  totally  impermissible,  for  merit  cannot  be  compromised  by  making
reservation on the consideration,  like  residential  requirement,  as  that
would be  absolutely  against  the  national  interest  and  plays  foul  of
equality clause engrafted in the Constitution.  It is  put  forth  that  the
States  of  Andhra  Pradesh  and  Telangana  have  drawn  support  from  the
Presidential  order,  namely,  Andhra   Pradesh   Educational   Institutions
(Regulations  and  Admissions)  order  1974  (for  short  “the  Presidential
Order”) issued under Article 371-D of the  Constitution  and  G.O.P.  No.646
dated 10th July, 1979 issued by the State  of  Andhra  Pradesh  (for  short,
‘the 1979  circular’),  which  are  really  not  applicable  to  the  super-
specialty courses, for  the  legal  system  which  prevails  throughout  the
territory of India is a singular and indivisible one and Article 14  lays  a
clear postulate for conferment of equal opportunity throughout  the  nation.
It is asseverated that  the  reservations  made  by  the  States  of  Andhra
Pradesh, Telangana and Tamil Nadu,  ushers  in  a  state  of  inequality  by
putting the residents of  the  said  States  in  one  class  solely  on  the
foundation of  domicile  and  others  in  a  different  category  altogether
without  any  rationale  and,  therefore,  the  entire  action   smacks   of
arbitrariness and unreasonableness.
3.    On the basis of aforesaid assertions prayers have been made  to  issue
a command to the Respondent Nos.1 and 6  i.e.  the  Secretary,  Ministry  of
Health and Family Welfare, Union of India and the Medical Council of  India,
respectively,  to  allow  the  petitioners  to  appear   in   the   entrance
examination conducted by the respondent Nos.3 to 5 i.e. the States of  Tamil
Nadu, Andhra Pradesh and Telangana for the year  2015-2016  for  the  super-
specialty courses and further to issue a  writ  of  mandamus  directing  the
respondent Nos.1 and 6,  as  well  as  the  respondent  No.2,  the  Director
General of Health Services of the  Union  of  India,  to  conduct  a  common
entrance test for admission to super-specialty  courses,  like  DM/M.Ch.  at
All India Level, and for certain other ancillary reliefs.
4.    A counter affidavit has been filed by  the  State  of  Andhra  Pradesh
contending, inter alia, that the claim of the petitioners to appear  in  the
entrance test conducted by the State of Andhra Pradesh  for  admission  into
the medical super-specialty  courses  is  contrary  to  the  scheme  of  the
Presidential Order and the 1979 circular.  It is set forth  in  the  counter
affidavit that the  two  categories  of  institutions,  namely,  State  wide
educational Institutions and Non-State wide educational Institutions  (Local
Institutions) existed in the State of undivided Andhra Pradesh  as  per  the
Presidential Order and further clarified by 1979 circular  all  professional
under-graduate and post-graduate courses are  covered  under  the  aforesaid
two categories of institutions.  It is contended that  the  erstwhile  State
of Andhra Pradesh was divided into three local areas that came under  Andhra
University, Osmania University  and  Sri  Venkateswara  University  for  the
purpose of admission into the educational institutions.  Subsequent  to  the
bifurcation of the State, the Andhra University area  and  Sri  Venkateswara
University area have come under the territory of  State  of  Andhra  Pradesh
and the Osmania University area has come under the State  of  Telangana  and
85% of the seats are reserved for the local candidates  in  each  University
area and the said system is to remain in vogue for a period  of  ten  years.
A reference has  been  made  to  paragraph  3  of  the  Presidential  Order,
indicating the division of the local areas.   There  is  also  reference  to
paragraphs 5 and 7 of  the  Presidential  Order,  which  indicate  that  the
reservations are available for the local candidates in the University  areas
in  Non-State-wide  educational  institutions  and  State-wide   educational
institutions.  Placing reliance on the same it is asserted  that  admissions
upto 85% of Non-State-wide seats shall be reserved in favour  of  the  local
areas as per procedure specified in the 1979 circular as amended  from  time
to time and remaining 15% seats are to be treated as  unreserved  seats  for
the  Non-State  candidates  who  have  qualified  in  the   Entrance   Test.
Elaborating the same, it is contended that  admission  upto  85%  State-wide
seats shall be reserved  in  favour  of  Andhra  and  Nagarjuna  University,
Osmania and Kakatiya University  and  Sri  Venkateswara  University  in  the
ratio 42:36:22 respectively as per the procedure specified as per  the  1979
circular.  It is highlighted that paragraph 4  of  the  Presidential  Order,
defines the local candidate in  reference  to  a  local  area  and  how  the
remaining 15% unreserved seats have to be dealt with.   In  essence,  it  is
the stand of the State  of  Andhra  Pradesh  that  according  to  Six  Point
Formula of  the  Constitution  of  India,  as  amended  by  32nd  Amendment,
inserting Article 371-D, special provisions have been  made  in  respect  of
the State of Andhra Pradesh which provide equal opportunities  in  different
parts of the State in the matter of  public  employment  and  education.  To
bolster  the  stand  that  there  is  no  provision  for  admission  to  the
candidates of other States except the candidates belonging to the  State  of
Andhra  Pradesh,  emphasis  is  laid  on  the  schematic  context   of   the
Presidential Order and the 1979 circular and further it is  reiterated  that
in view of the special status conferred on the State by  the  constitutional
norms of equality which has been assiduously  attempted  to  build  is  sans
substance as per the Presidential Order read with 1979 circular.
5.    The State of Telangana has also filed a counter affidavit  wherein  it
has been stressed that the Presidential Order, as well as the 1979  circular
are protective in nature and a distinction has been drawn between the  local
candidates and reservation for local candidates; and the candidates who  are
eligible to apply for admission in respect  of  the  remaining  15%  of  the
unreserved seats.  It is urged that the 15% of unreserved seats as  per  the
Presidential Order and the circular issued by the State Government in  1979,
do not include the candidates from other States.  The  other  grounds  which
have been put forth in the counter affidavit  need  not  be  stated  because
they are in a way repetition of the stand  taken  by  the  State  of  Andhra
Pradesh.
6.    The State of Tamil Nadu has also filed a  counter  affidavit,  but  we
shall not refer to the same in praesenti.  At  the  very  outset,  we  would
like to make it absolutely clear that when we reserved the  matter,  we  had
mentioned in our order that the controversy relating to the State  of  Tamil
Nadu shall be taken up after the judgment is pronounced in  respect  of  the
States of Andhra Pradesh and Telangana.
7.    We have heard Ms. Indu  Malhotra  and  Mr.  B.H.  Marlapalle,  learned
senior counsel for the petitioners,  Mr.  Mukul  Rohatgi,  learned  Attorney
General for Union of India, Mr. H.P. Raval, learned  senior  counsel,  along
with Mr. S. Udaya Kumar Sagar, learned counsel for the State  of  Telangana,
Mr. Guntur Prabhakar, learned counsel for the State of  Andhra  Pradesh  and
Mr. Gaurav Sharma, learned counsel for the Medical Council of India.
8.     It  is  submitted  by  Ms.  Indu  Malhotra,  learned  senior  counsel
appearing for the petitioners that though Article 371-D of the  Constitution
of India makes special provisions for the State, yet that would  not  extend
to cover reservations as regards the  super-specialty  courses  where  merit
alone matters as has been held by  the  Constitution  Bench  in  Dr.  Preeti
Srivastava and Another vs. State of M.P. and Others[1]. It is urged  by  her
that equality before law and equal protection of the law serve  the  purpose
of excellence and if merit is compromised on  the  bedrock  of  geographical
boundary, the  basic  normative  principle  of  equality  would  be  marred.
Learned  senior  counsel  would  further  contend   that   the   residential
requirement or institutional preference should not be allowed  to  have  any
room in this category of admissions in view of the pronouncements in  Nikhil
Himthani  vs.  State  of  Uttarakhand[2]  and  Vishal  Goel  vs.  State   of
Karnataka[3].   It  is  astutely  canvassed  by  her  that   the   principle
pertaining to domicile was laid down more than  a  decade  back  in  Saurabh
Chaudri vs. Union of India[4], but both the States, namely,  Andhra  Pradesh
and Telangana have flagrantly violated  the  said  principle  and  given  an
indecent burial to the guidelines issued by the Medical Council of India.
9.     Mr.  B.H.  Marlapalle,  learned  senior  counsel  appearing  for  the
impleaded petitioners would submit that Rule 9 of  the  Medical  Council  of
India Postgraduate Medical Education Regulations, 2000, as amended  on  21st
December, 2010, deals with the selection of post-graduate  students  by  all
the  medical  educational  institutions  all  over  the  country  and  these
Regulations are indubitably binding on all  the  universities  in  both  the
States and they cannot be allowed to violate the same.  It  is  his  further
submission that the Presidential Order, issued under Article  371-D  of  the
Constitution is primarily aimed at removing disparities  between  the  three
different  regions  of  Andhra  Pradesh,  namely,  Andhra,  Rayalaseema  and
Telangana, as prevailing at the time  of  its  formation  of  the  State  of
Andhra Pradesh consequent upon the  States  Reorganization  Act,  1956,   in
respect of employment and education and the term “education” as finds  place
in Clause 2(1)(a) of the Presidential Order,  defines  the  term  “available
seats”, which means number of seats in a course for admission  at  any  time
after excluding those  reserved  for  candidates  from  outside  the  State.
Learned senior counsel has referred to Clause 3 of  the  Presidential  Order
and highlighted that whatever manner the interpretation is placed  on  those
clauses, 15% has to be demarcated as non-local quota or  available  for  the
candidates who are not residents of the State.  He has  emphatically  argued
that clause 2(1)(a)  of the 1979 circular, is only a  clarifactory  one  and
hence, it cannot convey that the candidates who have passed the  examination
from any State other than Andhra  Pradesh/Telangana,  do  not  fall  in  the
category of candidates from outside the State.   That  apart,  it  is  urged
that  in  the  name  of  clarification  it   cannot   place   an   erroneous
interpretation on the Presidential Order, for that will make the said  Order
unworkable, and also would cause violence to the language  employed  in  the
Presidential Order.
10.   Mr. Marlapalle has referred to paragraph 11 of the  1979  circular  to
buttress his stand that the procedure of implementation  of  reservation  is
clear to the extent  that  15%  reservation  will  be  meant  for  non-local
candidates.  He has given an example by stating that if there are  12  seats
available for a particular  super-specialty  course  in  a  university,  the
available seats will be arrived at by deducting  the  national  quota,  that
may be 2 seats, and from the remaining  10  available  seats,  85%  will  be
earmarked for the local candidates and  remaining  15%  for  those  who  are
listed in Clause 2 of the Presidential Order would go  to  non-local  quota.
He has placed reliance on the prospectus issued for the academic year  2015-
2016  by  Dr.  N.T.R.  University  of  Health  Sciences,   Andhra   Pradesh,
especially on Clause 3.8 to 3.8.6.  Learned senior counsel  has  also  drawn
inspiration from Rule 2(2) of the  Rules  for  Admission  to  Post  Graduate
Courses in the Medical Colleges  in  the  State  of  Andhra  Pradesh,  1983.
Learned senior counsel has criticized that the prospectus  of  the  academic
year 2015-2016 of the universities, namely, Dr. N.T.R. University of  Health
Sciences, Andhra Pradesh and Nizam’s Institute of  Medical  Sciences,  which
do not provide for All India quota  and  only  provide  for  the  “available
seats” and, in that backdrop it is suggested that  the  Medical  Council  of
India  should  issue  appropriate  directions  under  the  approval  of  the
Government of India to earmark national quota outside the  State  of  Andhra
Pradesh and Telangana in the super-specialty post-graduate medical  courses;
and for the current academic year, the Medical Council of  India  should  be
directed to consider to  create  additional  seats  for  national  quota  in
respect of these two States so  that  the  Presidential  Order  is  properly
implemented.
11. Mr. Marlapalle has submitted that to understand the controversy  in  the
proper perspective of the Presidential Order and how the States have  worked
it out, the examination of certain Acts, Rules and Regulations, namely.  (i)
A.P. Educational Institutions (Regulation of Admission  and  Prohibition  of
Capitation Fee) Act, 1983;  (ii)   Rules  for  Admission  to  Post  Graduate
Courses in the Medical Colleges in the State of Andhra Pradesh, 1983;  (iii)
The Andhra Pradesh Regulation of  Admission  to  Super  Specialties  in  the
Medical  Colleges  Rules,  1983;  (iv)  Andhra  Pradesh   Medical   Colleges
(Admission into Post Graduate Medical  Courses),  Rules  1997,  as  modified
from time to time and (v) Medical  Council  of  India  Postgraduate  Medical
Education Regulations, 2000, as amended from time to time  are  necessary  .
We must immediately  state  that  their  relevance  shall  depend  upon  our
eventual analysis of the constitutional provision,  the  Presidential  Order
and the 1979 circular issued by the State of Andhra Pradesh.
12.   Mr. Mukul Rohatgi, learned Attorney General appearing  for  the  Union
of India, would contend that Article 371-D of the Constitution  enables  the
President of India to issue certain category of orders and  in  exercise  of
that power the Presidential Order had been issued in relation to  the  State
of Andhra Pradesh which pertains to the field of education and  that  covers
the super-specialty courses; and further the 1979  circular  issued  by  the
State Government is not an amendment to the  Presidential  Order,  but  only
postulates the manner and method of implementation.  It is canvassed by  him
that there can be no cavil  that  merit  is  the  rule  in  case  of  super-
specialty courses and there cannot be any reservation, as has been  held  in
Preeti Srivastava (supra) and  subsequent  judgments,  but  this  Court  has
consistently held that as far as the State of Andhra Pradesh  is  concerned,
the super-specialty courses would fall  beyond  the  said  concept.   It  is
propounded by Mr. Rohatgi that the submission  that  15%  would  go  to  the
students who have no domicile in the  State,  should  go  to  candidates  of
other  States,  is  absolutely  incorrect  in  view  of  the  procedure  for
implementation  of  the  Presidential  Order,  which  has  been  elaborately
determined by the State of Andhra Pradesh in 1979.  He has commended  us  to
the decisions in Dr.  Pradeep  Jain  and  Others  vs.  Union  of  India  and
Others[5], Reita Nirankari vs. Union  of  India[6],  Dr.  Dinesh  Kumar  vs.
Motilal Nehru Medical College[7], C. Surekha vs. Union of India[8]  and  Dr.
Fazal Ghafoor vs. Union of  India  and  Others[9].   Needless  to  say,  the
learned Attorney General has submitted that the  principles  stated  in  the
said authorities shall apply on all fours to the State of Telangana.
13.   Mr. Harin P. Raval, learned senior counsel, along with  Mr.  S.  Udaya
Kumar Sagar, learned counsel, appearing for  the  State  of  Telangana  have
adopted the submissions advanced by the learned Attorney General.
14.   To appreciate the controversy raised  in  this  writ  petition  it  is
necessary to reflect upon the language employed  in  Article  371-D  of  the
Constitution and the  interpretation  placed  by  this  Court  on  the  said
provision.  That apart, it would also be essential to  understand  the  1979
circular issued by the State of Andhra Pradesh in  the  year  1979  and  how
this Court has perceived the ambit and scope of the same  and  further  also
consider  the concept of non-applicability of reservation in respect of  the
super speciality courses. Having stated so, we may reproduce Clauses  1  and
2 of Article 371-D of the Constitution, which are relevant for  the  present
purpose, They read as follows:-
“371-D. Special provisions with respect to the State of  Andhra  Pradesh  or
the State of Telangana.- (1) The President may by order  made  with  respect
to the State of Andhra Pradesh or the State of  Telangana,  provide,  having
regard to the requirement of each State,  for  equitable  opportunities  and
facilities for the people belonging to different parts  of  such  State,  in
the matter of  public  employment  and  in  the  matter  of  education,  and
different provisions may be made for various parts of the States.

An order made under clause (1) may, in particular,-

require the State Government to organise any class or classes of posts in  a
civil service of, or any class or classes of civil posts  under,  the  State
into different local cadres for different parts of the State  and  allot  in
accordance with such principles and procedure as may  be  specified  in  the
order the persons holding such posts to the local cadres so organized;

specify any part or parts of the State which shall be regarded as the  local
area –

for direct recruitment to posts in any local  cadre  (whether  organized  in
pursuance of an order under this article  or  constituted  otherwise)  under
the State Government;

for direct recruitment to posts in  any  cadre  under  any  local  authority
within the State; and

for the purposes of admission to any University within the State or  to  any
other educational institution which is subject to the control of  the  State
Government;

specify the extent to which, the manner in which and the conditions  subject
to which, preference or reservation shall be given or made –

in the matter of direct recruitment to posts in any such cadre  referred  to
in sub-clause (b) as may be specified in this behalf in the order;
in the matter of admission to  any  such  University  or  other  educational
institution referred to in sub-clause  (b)  as  may  be  specified  in  this
behalf in the order,

to or in favour of candidates who have resided or  studied  for  any  period
specified in the  order  in  the  local  area  in  respect  of  such  cadre,
University or other educational institution, as the case may be.”

15.   At this stage we  think  it  appropriate  to  refer  to  the  relevant
clauses of the Presidential Order.  The pertinent clauses, we  are  inclined
to think, are:-
“(2) It extends to the whole of the State of Andhra Pradesh.

(3) It shall come into force on the 1st day of July, 1974.

2.  Interpretation:-  (1)  In  this  Order,  unless  the  context  otherwise
requires:-

(a) “available seats” in relation to any course of study, means  the  number
of seats provided in that course for admission at any time  after  excluding
those reserved for candidates from outside the State.

(b) “Local  area”,  in  respect  of  any  University  or  other  educational
institution, means the local area specified in paragraph  3  of  this  Order
for the purposes of  admission  to  such  University  or  other  educational
institution.

(c) “Local candidate”, in relation to any local area, means a candidate  who
qualifies under paragraph 4 of this Order as a local candidate  in  relation
to such local area:

(d) “State Government” means the Government of Andhra Pradesh.

(e) “State-wide educational institution” means  an  educational  institution
or a department of an educational institution specified in the  Schedule  of
this Order.

(f)  “State-wide  University”  means   the   Andhra   Pradesh   Agricultural
University constituted under  the  Andhra  Pradesh  Agricultural  University
Act, 1963  (Andhra  Pradesh  Act  24  of  1963),  or  the  Jawaharlal  Nehru
Technological   University   constituted   under   the   Jawaharlal    Nehru
Technological University Act, 1972 (Andhra Pradesh Act 16 of 1972).

(2) Any reference to any District in this Order  shall  be  construed  as  a
reference to the area comprised in that District on the  1st  day  of  July,
1974.

(3)  The  General  clauses  Act,  1897(10   of   1897)   applies   for   the
interpretation of this order as it  applies  for  the  interpretation  of  a
Central Act.

3.    Local area:- (1) The part of the  State  comprising  the  district  of
Srikakulam, Visakhapatnam, West Godavari,  East  Godavari,  Krishna,  Guntur
and Prakasam 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 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.

(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  Anantapur,  cuddapah,
Kurnool, Chitoor and Nellore shall be regarded as the  local  area  for  the
purposes of admission to  Sri  Venkateswara  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.

4.    Local candidates:- (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 of 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 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,  be  regarded  as  a  local  candidate  in
relation to.

(i) such local are where he has studied for the maximum period  out  of  the
said period of seven years; or.

(ii) Where the periods of his study in 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 institution 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 period of “his residence in  two  or  more  local  areas  are
equal, such local area where he has resided last in such equal periods”.]

Explanation – For the purpose of this paragraph.

(i)  “Educational  institution”  means  a  University  or  any   educational
institution recognized  by  the  State  Government  a  University  or  other
competent authority;

(ii) “relevant qualifying examination”  in  relation  to  admission  to  any
course of study, means the examination, a  pass  in  which  is  the  minimum
educational qualification for admission to such course of study;

(iii) in reckoning the consecutive academic years during which  a  candidate
has studied,-

(a) any period of interruption of his study by  reason  of  his  failure  to
pass any examination; and

(b) any period of his study in a  State-wide  University  or  a  State  wide
educational institution, shall be disregarded.

(iv) the question whether any candidate  for  admission  to  any  course  of
study has resided in any local area shall be determined  with  reference  to
the places where the candidate actually resided and not  with  reference  to
the residence of his parent or other guardian.]

5. Reservation in non-State-wide Universities and educational Institutions:-
 (1) Admissions to eighty-five percent  of  the  available  seats  in  every
course  of  study  provided  by  the  *(Andhra  University,  the   Nagarjuna
University,  the  Osmania  University.**  the  Kakatiya  University  or  Sri
Venkateswara University) or by  any  other  educational  institution  (other
than a State-wide University or a Statewide educational  institution)  which
is subject to the control of the  State  Government  shall  be  reserved  in
favour of the local candidates in relation to the local area in  respect  of
such University or other educational institution.

(2) While determining under sub-paragraph (1) the  number  of  seats  to  be
reserved in favour of local candidates any  fraction  of  a  seat  shall  be
counted as one:

Provided that there shall be at least one unreserved seat.

6.    Reservation  in  Statewide  Universities  and  State-wide  educational
institutions (1) Admissions to eighty five percent 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  and  allocated
among the local candidates I relation, to the  *(Local  areas  specified  in
sub-paragraph(1), sub-paragraph(2) and sub-paragraph(3) of paragraph  3,  in
the ratio of 42:36:22 respectively:

Provided that this sub-paragraph shall not apply in relation to  any  course
of study in which the total  number  of  available  seats  does  not  exceed
three.

(2) While determining under sub-paragraph(1)  the  number  of  seats  to  be
reserved in favour of the local candidates, any fraction of a seat shall  be
counted as one.

Provided that there shall be at least one unreserved seat.

(3) While allocating under sub-paragraph(1) the  reserved  seats  among  the
local candidates in relation to the different local areas,  fractions  of  a
seat shall be adjusted by counting the greatest  fraction  as  one  and,  if
necessary, also the greater of the  remaining  fractions  as  another;  and,
where the fraction to be so counted cannot be  selected  by  reason  of  the
fractions being equal, the selection shall be by lot.

Provided that there shall be at least  one  seat  allocated  for  the  local
candidate in respect of each local area.

7. Filling of reserved vacant seats.- If a local candidate in respect  of  a
local area is not available to  fill  any  seat  reserved  or  allocated  in
favour of local candidate in respect of that local area, such seat shall  be
filled as if it had not been reserved.

8. Power to authorise issue of directions.  –  (1)  the  president  may,  by
order, require the State Government to  issue  such  directions  as  may  be
necessary or expedient for the purpose of giving effect  to  this  Order  to
any University or to  any  other  educational  institution  subject  to  the
control of the State Government; and the  University  or  other  educational
institution shall comply with such directions.

(2) The State Government may, for the  purpose  of  issuing  any  directions
under sub-paragraph (1) or for satisfying itself that any directions  issued
under that sub-paragraph have  been  complied  with  require,  by  order  in
writing, any University or any other educational institution subject to  the
Control of the State Government to furnish them such information, report  or
particulars as may be specified in the order; and the  University  or  other
educational institution shall comply with such order.”

16.  The State  Government  issued  the  circular  in  1979.   The  relevant
paragraphs of the circular deserve to be reproduced.  They read as follows:-

“2.  The Andhra Pradesh Educational Institutions (Regulation of  Admissions)
Order, 1974 provides for reservation of seats in favour of local  candidates
in courses of study provided  by  the  Universities  and  other  educational
institutions subject to the Control of the State  Government.   Paragraph  9
of the order lays down that the provisions of that order shall  have  effect
notwithstanding  anything  contained  in  any   statute   ordinance,   rule,
regulation or other order(whether made before or after the  commencement  of
the Order)  in  respect  of  admissions  to  any  University  or  any  other
educational institutions subject to the control  of  the  State  Government.
Paragraph 10 of the said Order, however, declares that nothing in the  Order
shall affect the operation of any provisions made by  the  State  Government
or other competent authority (whether before or after  the  commencement  of
the Order) in respect of reservations in the  matter  of  admission  to  any
University or other education Institution in favor or  women,  socially  and
educationally backward classes of citizens, the  Scheduled  Castes  and  the
Scheduled Tribes in so far as such provisions are not inconsistent with  the
Order.

3. After the coming into force of the above Presidential Order, with  effect
from 1-7-1974, admissions to the  educational  institutions  in  the  entire
State are to be made in the light of  the  provisions  of  the  said  order.
According to Paragraph 4 of the Order  a  candidate  for  admission  to  any
course of study shall be regarded as a local candidate in  relation  to  the
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   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.

4.  It must be noted that para 4(a) as extracted above covers the  cases  of
those candidates who studied in an educational  institution  or  educational
institutions 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,  while  para  4  (b)
applies to  the  case  of  other  candidates.  For  purposes  of  para  4(a)
educational institution has been defined as a University or any  educational
institution recognized by  the  State  Government,  a  University  or  other
competent authority.  The eligibility of a candidate who has studied  during
any part of the four years period in an unrecognized institution  will  have
to be dealt with the under para 4(b).  While considering the eligibility  of
a candidate to be regarded as a local candidate,  under  paragraph  4(a)  of
the Order by virtue of four consecutive years of Study in a local  area,  it
should be noted that in reckoning the consecutive academic years  of  study,
any interruption in the period of his study ,by reason  of  his  failure  to
pass any examination shall be disregarded.  For instance,  a  candidate  who
has studied  in  the  IXth  and  Xth  Classes  and  the  Junior  and  Senior
Intermediate Classes in institutions of the sale local area with a break  of
one year after the Xth class on account of failure to  pass  the  Xth  Class
examination at the first attempt, shall be regarded as a local candidate  in
relation to that local  area  for  admission  to  a  degree  course  in  any
institution in that area.

5. The above definition of the local candidate (as it  stood  until  it  was
amended with effect from 25-11-1976) had given rise  to  certain  situations
wherein some of the candidates belonging to the State of Andhra Pradesh  who
have studied or resided throughout within the State came to be  regarded  as
non-local candidates in all the local areas within the State.  In  order  to
avoid such a situation, the  Government  of  India  have  since  issued  the
Andhra Pradesh Educational Institutions  (Regulation  of  Admission)  Second
Amendment Order, 1976 amplifying the said definition in paragraph 4  of  the
Order

6.  The Andhra Pradesh Educational Institutions (Regulation  of  Admissions)
Second Amendment Order, 1976 inserts a new sub-paragraph in  the  said  1974
Order-viz., sub-paragraph (2) to Paragraph 4 thereby  making  provision  for
considering the claims of persons, who under the old definition  would  have
become non-local in relation to all local areas in the State.  According  to
sub-para (2) (a) of Para  4,  after  amendment,  if  such  a  candidate  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 on, as the case may be, first appeared  for  the  relevant
qualifying examination, he  shall  be  regarded  as  a  local  candidate  in
relation to that local area where he had studied for the longest period  out
of the said period of seven years.  In the event of the periods of study  in
two or more local areas being equal he shall be regarded as local  candidate
in relation to that local area where he studied during the last of the  said
equal periods.  Clause (b) to sub-para  (2)  applies  to  a  candidate  who,
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  has  not  studied  in
educational institutions in any local area, but has  resided  in  the  State
during the whole of the said seven years, the candidate  shall  be  regarded
as a local candidate in relation to that local area  where  he  has  resided
for the longest period out of the said seven  year  period.  This  residence
test will be applies to candidates in whose cases there is a gap  in  study,
occasioned otherwise than by reason of failure to pass  in  an  examination,
in the prescribed  full  term  of  seven  years  immediately  preceding  the
relevant qualifying examination.  It has also been provided that  where  the
periods of residence in two or more local areas are equal, such a  candidate
shall be regarded as a local candidate in relation to the local  area  where
he resided last in such equal periods.  The application of  the  liberalized
definitions made through the Second Amendment Order are illustrated  by  the
examples given in the Annexure – I.

                           xxxxx            xxxxx

9.  The Government have directed that for  the  purpose  of  admission  into
educational institutions, those  who  claim  to  be  local  candidates  with
reference to  para  4(1)  (a)  or  para  4(2)  (a)  of  the  Andhra  Pradesh
Educational Institutions  (Regulation  of  Admissions)  Order,  1974  should
produce evidence in the form of study certificates issued by  the  heads  of
the educational institutions concerned indicating the details  of  the  year
or years in which the candidate has studied in  an  educational  institution
or institutions in such local area for a period of not  less  that  four  or
seven consecutive academic years ending  with  academic  year  in  which  he
appeared or, as the case may be, first appeared in the  relevant  qualifying
examination. Those who do not qualify as local candidates  under  para  4(1)
(a) or 4(2) (a) but claim to qualify  by  virtue  of  residence  under  para
4(1)(b) or para 4 (2) (b) of the said order  should  produce  a  certificate
issued by an Officer of  the  Revenue  Department  not  below  the  rank  of
Tahsildar in the form annexed vide Annexure – II.


                           xxxxx            xxxxx

11. As clarifications were being sought on the question as to who should  be
considered eligible to apply as candidates belonging to the State of  Andhra
Pradesh for the purpose of  admission  to  courses  of  studies  offered  by
educational institutions, subject to the control  of  the  State  Government
against 15% of the available  seats  kept  unreserved  in  terms  of  Andhra
Pradesh Educational Institutions (Regulations  of  Admissions)  Order,  1974
the Government after careful consideration have directed that the  following
categories of candidates may be treated as eligible to apply for  admissions
to educational institutions in the State  subject  to  the  control  of  the
State Government, as candidates belonging to the  State  of  Andhra  Pradesh
against the 15% of the available seats  left  unreserved  in  terms  of  the
Presidential Order:

(i) All local candidates defined in the Presidential Order.

(ii) Candidates who have resided in the State for  a  total  period  of  ten
years excluding periods of study outside  the  State;  or  either  of  whose
parents have resided in the State for a total period of ten years  excluding
periods of employment outside the state;

(iii) Candidates who are children of parents who are in  the  employment  of
this State or Central Government, Public Sector corporation,  Local  Bodies,
Universities and other similar quasi-public institutions within  the  State;
and

(iv) Candidates who are spouses of those in the employment of this State  or
Central Government, Public Sector Corporations, Local  Bodies,  Universities
and educational institutions recognized by the Government  a  University  or
other competent authority and similar  other  quasi-Government  institutions
within the State.

12. It has been decided that persons in the  employment  of  this  State  or
Central Government, Public Sector Corporations, Local  Bodies,  Universities
and other  similar  Quasi-Public  Institutions,  within  the  State  may  be
treated as eligible to apply for admission to the part-time course of  study
offered by the educational institutions in the State subject to the  control
of the state government as candidates  belonging  to  the  State  of  Andhra
Pradesh.

13.  The Government consider that in the large  majority  of  cases  falling
under the above categories, “nativity” may not be in doubt.   The  Heads  of
Educational  Institutions  or  other  admission  authorities  may  call  for
appropriate certificates  of  study/residence  or  employment  in  cases  of
doubt.”

      We shall, as we are obliged to in the instant case,  proceed  to  deal
with the purport of the said circular on the  bedrock  of  the  Presidential
Order.  Be it  clarified,  we  are  not  called  upon  to  decide  upon  the
constitutional validity of the circular, but to understand  the  purport  of
the same through the interpretative purpose.
17.   In Chief Justice of A.P. vs. L.V.A. Dixitulu[10], the  question  arose
before the Constitution Bench of this  Court  as  to  whether  Clause  3  of
Article 371-D of the Constitution that deals  with  civil  services  of  the
State would include the staff of the  High  Court  or  of  the  Sub-ordinate
judiciary. The Constitution Bench held that the statements  and  objects  of
reasons do not indicate that there was any intention whatsoever on the  part
of the legislature to  impair  or  derogate  from  the  scheme  of  securing
independence of the judiciary as enshrined in  Articles  229  and  225;  and
indeed the amendment or abridgment of this basic scheme was never  an  issue
of debate in Parliament.  The Constitution Bench  while  commenting  on  the
Article 371-D had to say this:-

“73.  It will be seen from the above extract, that the  primary  purpose  of
enacting  Article  371-D  was  two  fold:  (i)   To   promote   “accelerated
development of the backward areas of the State of Andhra  so  as  to  secure
the balanced development of the State as  a  whole”,  and  (ii)  to  provide
“equitable opportunities to different areas of the State in  the  matter  of
education, employment and career prospects in public service”.

74. To achieve this primary object, clause (1)  of  Article  371-D  empowers
the  President  to  provide  by  order,  “for  equitable  opportunities  and
facilities for the people belonging to different parts of the State  in  the
matter of public employment and in the matter of education”. Clause  (2)  of
the article is complementary to clause (1). It  particularises  the  matters
which an order made under clause (1) may provide.  For  instance,  its  sub-
clause (c)(i) enables the President to specify in his Order, “the extent  to
which, the manner in which and the conditions subject to which”,  preference
or reservation shall be given or made in the matter  of  direct  recruitment
to posts in any local cadre under the State Government or  under  any  local
authority. Sub-clause (c) further  makes  it  clear  that  residence  for  a
specified period in the local area, can be made a condition for  recruitment
to any such local cadre. Thus, clause  (4)  also  is  directly  designed  to
achieve the primary object of the legislation.”


18.   After so stating the Constitution Bench has ruled that the  evil  that
was sought  to  be  remedied  pertained  to  inequitable  opportunities  and
facilities for the people belonging to  different  parts  of  the  State  of
Andhra Pradesh in  matters  of  public  employment  and  in  the  matter  of
education and had no causal nexus whatever to the independence of  the  High
Court and subordinate judiciary which the Founding Fathers have with  solemn
concern vouchsafed in Articles 229 and 235 of the Constitution.   The  Court
also opined that the public agitation which led to the enactment of  Article
371-D did not have any grievance against the basic scheme of Chapters V  and
VI in Part VI of the Constitution.  The Court interpreting  the  Article  in
entirety eventually  expressed  the  view  that  the  Parliament  never  had
intended to confer a wide,  liberal  interpretation  which  will  defeat  or
render otiose the scheme of Chapters IV and V,  Part  VI  particularized  in
Articles 229 and 235 of the Constitution.
19.   In Dr. Pradeep Jain (supra), a  three-Judge  Bench  was  dealing  with
admissions to medical colleges, both at the undergraduate and at  the  post-
graduate levels.  The question that  arose  for  consideration  was  whether
regard  being  had  to  the  constitutional  values,  admission  to  medical
colleges or any other institution of higher learning  situated  in  a  State
can be confined to those who have their domicile within  the  State  or  who
are residents within the State for a specified number of years  or  can  any
reservation in admissions be made for them so as  to  given  the  precedence
over those who do not possess domicile or residential  qualification  within
the State, irrespective of merit.  After referring  to  various  aspects  in
the Constitution and authorities  rendered  in  N.  Vasundara  v.  State  of
Mysore[11],   Jagdish  Saran  v.  Union  of  India[12]  and  various   other
authorities the three-Judge Bench came to hold thus:-
“We are therefore of the view that so far  as  admissions  to  post-graduate
courses, such as MS, MD and the like are concerned, it  would  be  eminently
desirable not to provide for any reservation based on residence  requirement
within the State or on  institutional  preference.  But,  having  regard  to
broader  considerations  of  equality  of  opportunity   and   institutional
continuity in education which has its own importance  and  value,  we  would
direct that though residence requirement within the State  shall  not  be  a
ground for reservation in admissions to  post-graduate  courses,  a  certain
percentage of seats may in the present circumstances,  be  reserved  on  the
basis of institutional preference in  the  sense  that  a  student  who  has
passed MBBS course from a  medical  college  or  university,  may  be  given
preference for admission to the post-graduate course  in  the  same  medical
college or university but such reservation on  the  basis  of  institutional
preference should not in any event exceed 50 per cent of  the  total  number
of open seats available for admission  to  the  post-graduate  course.  This
outer limit which we are fixing will also be  subject  to  revision  on  the
lower side by the Indian Medical Council in the same manner as  directed  by
us in the case of admissions to the MBBS course.  But,  even  in  regard  to
admissions to the post-graduate course, we  would  direct  that  so  far  as
super specialities such  as  neuro-surgery  and  cardiology  are  concerned,
there should be no reservation at all even on  the  basis  of  institutional
preference and admissions should be granted purely  on  merit  on  all-India
basis.”

20.   After the said judgment was  delivered,  the  said  three-Judge  Bench
passed a clarificatory order in Reita Nirankari (supra)  wherein  the  Court
considered three aspects one of which is relevant for the present case.   We
reproduce the same:-
“We may make it clear that the judgment will not  apply  to  the  States  of
Andhra Pradesh and Jammu and Kashmir because at the time of hearing  of  the
main writ petitions, it was pointed out  to  us  by  the  learned  advocates
appearing on behalf of those States that there were  special  constitutional
provisions in regard to them which would need independent  consideration  by
this Court.”

21.   The aforesaid clarificatory order has its  own  significance,  for  it
undeniably excludes the applicability of the domicile  test  stated  in  Dr.
Pradeep Jain (supra) in respect of the State of  Andhra  Pradesh.   At  this
stage, it would be appropriate to refer to the case of C.  Surekha  (supra).
The said  case  arose  from  Osmania  University  in  Andhra  Pradesh.   The
petitioner therein had passed from the said University and  he  intended  to
take the All India  Entrance  Examination  for  admission  to  P.G.  medical
course in 1988.  He had challenged the constitutional  validity  of  Article
371-D(2)  (b)  (iii)  and  C  (ii)  of  the  Constitution  as  well  as  the
Presidential Order as a consequence of which the students of Andhra  Pradesh
have been excluded for competing in the  aforesaid  examination.   The  two-
Judge Bench referred to the decisions in Dr.  Pradeep  Jain  (supra),  Reita
Nirankari (supra), noted the stand of the Union  of  India  and  the  Andhra
Pradesh in their  respective  counter  affidavits  that  had  asserted  that
institutions in the State of Andhra  Pradesh  were  kept  out  of  from  the
purview of the scheme in view of the decision rendered in the  case  of  Dr.
Pradeep Jain (supra).  The Court also took note of the fact that  the  issue
was kept open in Reita Nirankari (supra), referred to the pronouncements  in
P. Sambamurthy v. State of Andhra Pradesh[13], Minerva Mills Ltd.  v.  Union
of India[14], P. Sampath Kumar v. Union  of  India[15]  and  reiterated  the
principle that Article  371-D(3)  was  valid  because  clause  (10)  of  the
Article 371-D provides as follows:-
“The provisions of this 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.”

22.   As has been  stated  earlier,  Clause  5  of  the  Article  371-D  was
declared ultra vires earlier with which we are not concerned  with  in  this
case.   Thereafter,  the  Court  posed  the  question  whether  within   the
Presidential Order, the Scheme in Dr. Pradeep Jain  (supra)  can  be  worked
out.  After so stating, the Court noted thus:-
5. .....“The Presidential  Order  of  1974  defines  “available  seats”  and
“local area” as also “statewide  educational  institutions”  in  sub-clauses
(a), (b) and (e) of clause 2. Clause 3  describes  the  three  local  areas.
Clause 9 gives overriding  effect  to  the  Presidential  Order.  Under  the
Presidential Order, admission to the  educational  institutions  is  limited
only to local and nonlocal candidates. It does not contemplate of  admission
into educational institutions otherwise.  The  contention  of  Mr  Choudhary
that if the Presidential Order has got to be given effect  to  in  its  true
spirit, the scheme in Dr Pradeep Jain case  cannot,  consistently  with  the
Presidential Order,  be  implemented  cannot  be  brushed  aside  and  bears
serious examination on certain important aspects. If the 15 per  cent  seats
are not treated as reserved in terms  of  the  Presidential  Order  and  are
intended to go to those who qualify at the All  India  Entrance  Examination
it is a statable possibility that the Presidential Order might  be  diluted.
It may be doubtful if, in ascertaining the import of ‘available  seats’,  it
would be permissible  to  deduct  the  15  per  cent  seats  for  non-locals
applying the formula of Dr Pradeep Jain case. We are inclined to think  that
the contention advanced by Mr Choudhary on behalf  of  the  respondent-State
that within the ambit of the Presidential Order, the scheme adopted by  this
Court in Dr Pradeep Jain case  is  eminently  arguable  and  raises  certain
important issues. It  is,  however,  not  necessary  to  pronounce  on  this
question finally as the petitioner, admittedly, has  already  been  provided
admission in one of the Medical Colleges.

6. Before we part with the case we would, however,  like  to  indicate  that
the Scheme in Dr Pradeep Jain case is, in the  opinion  of  this  Court,  in
national interest as also in the interest of the States. Competition at  the
national level is bound to  add  to  and  improve  quality.  Andhra  Pradesh
students on the whole are not at all backward and  we  are  of  the  opinion
that they would stand well on comparative basis. It is  for  the  State  and
the Central Governments, apart from the  legal  issues  involved  to  decide
whether  in  the  general  interest  of  the  State,  the  scheme   in   the
Presidential  Order  should  either  be  so  understood  as  to  permit  and
assimilate the Pradeep Jain principle or should be explained, if  necessary,
by an appropriate amendment of the Presidential Order.  We  would,  however,
leave it to the respondents to take their decision in the matter.  We  would
not like, therefore, to pronounce on the  legal  question  finally  in  this
case.

23.   Relying on the said passages,  it  is  submitted  by  Mr.  Marlapalle,
learned senior counsel that the observations made in  1988,  despite  expiry
of two decades  and  seven  years,  has  not  been  taken  note  of  by  the
authorities which indicates an apathetic attitude.  Learned  senior  counsel
would contend that the State of Andhra Pradesh by no stretch of  imagination
can be regarded as an educationally backward region compared to rest of  the
country.  It is also contended  by  him  that  the  Presidential  Order  was
issued at a stage feeling the need of the State but  the  same  is  not  the
condition after passage of  more  than  40  years.   In  fact,  submits  Mr.
Marlapalle, renouncing the merit criteria on the domicile  basis  especially
in respect of post graduate and super speciality courses   would  tantamount
to denouncing the concept of merit which has been enshrined commencing  from
Dr. Pradeep Jain (supra) to many a judgment rendered thereafter  in  respect
of the medical education.  The protective affirmation meant  for  the  State
of Andhra Pradesh by the  Presidential  Order  issued  in  1974  has  to  be
interpreted in such a manner so that  the  50%  which  has  been  demarcated
should go to otherwise meritorious  candidates  who  have  taken  All  India
Entrance  Examination  for  super  speciality  courses.   The   concept   of
continuity of education, its progress and the  rise  in  time,  submits  Mr.
Marlapalle, requires this Court to give a broader interpretation to the  15%
quota and not to be guided by  the  1979  clarificatory  circular  which  is
otherwise indefensible in law.
24.   It is apt to note here that Mr. Marlapalle has  commended  us  to  the
authority in Dr. Dinesh Kumar  (supra), but we need not refer  to  the  same
as it dealt with the reservation on the domicile basis, regard being had  to
the principle stated in Dr. Pradeep Jain (supra) and as far as the State  of
Andhra Pradesh (undivided) is concerned, the said  authority  was  not  made
applicable as stated in Reita Nirankari (supra).
25.   At this juncture, it is absolutely necessitous to refer  to  a  three-
Judge Bench decision in  NTR  University  of  Health  Sciences  v.  G.  Babu
Rajendra Prasad and Anr.[16]  In the said case, the question that was  posed
was whether  the  Government  of  Andhra  Pradesh  while  framing  the  1979
circular in terms of Presidential Order issued in 1974 under  Article  371-D
of the Constitution of India was bound to provide  reservation  for  15%  of
non-local seats, although reservation in terms of the  policy  decision  had
been taken in respect of the seats available for local  candidates.   It  is
worth mentioning here that the  controversy  had  travelled  to  this  Court
questioning the validity of the policy of the State  of  Andhra  Pradesh  as
regards the  non-reservation  of  scheduled  castes,  scheduled  tribes  and
backward classes within  15%  that  has  been  separately  demarcated.   The
learned Single Judge of the High Court had directed  to  reserve  15%  seats
reserved for the reserved category.  The Division Bench  in  Letters  Patent
appeal noted the conflict of views in earlier Division Bench  judgments  and
referred the matter to the Full Bench on the issue whether the  reservations
in terms of Article  15(4)  of  the  Constitution  of  India  in  favour  of
scheduled castes, scheduled tribes and backward classes  could  be  provided
in respect of 15% of the unreserved  seats  under  the  Presidential  Order,
1974.   The Full  Bench  analyzing  the  law  in  the  field  dismissed  the
appeals.  This Court dealing with the controversy referred to Article  371-D
of the Constitution, the Presidential Order, reproduced  various  paragraphs
from the same, took note of the 1979 circular issued by  the  Government  of
Andhra Pradesh, noted the  submissions  of   the  learned  counsel  for  the
parties, took into  consideration  the  formation  of  Universities  by  the
undivided State of Andhra Pradesh after the Presidential  Order  and  stated
thus:-
“10. A bare perusal of the definition of local area read  with  paras  3,  4
and 5 of the Presidential Order, as referred to hereinbefore,  it  would  be
evident that 85% of the seats are reserved for local candidates in  relation
to local areas. So far as a university area is concerned, a local  candidate
in one particular university area would be a non-local one in  another.  The
criteria for admission of a candidate in the superspeciality courses in  the
university on the ground of being local or non-local is, therefore  directly
referable to the university area and not the  boundaries  of  the  State  of
Andhra Pradesh.

11. ...... In the matter of admission, the Health  University  had  followed
the procedure provided in Annexure  III  of  GOP  No.  646  dated  10-7-1979
having regard to the fact that by reason of  the  Presidential  Order,  1974
only 85% of the seats are reserved in favour of the local  candidates  which
are required to be confined to the university area only. We,  thus,  do  not
find any  legal  infirmity  in  the  action  of  the  appellants  herein  in
directing that 15% reserved for candidates of non-local area may  be  filled
up only on merit.

12. Article 371-D of the Constitution of India contains a special  provision
applicable to the State of Andhra Pradesh only. 54% of  seats  are  required
to be filled up from open categories and 46% of seats are to  be  filled  up
from the reserved category candidates in each of the three regions from  the
medical  colleges  and  engineering   colleges.   Having   regard   to   the
reservations made regionwise, indisputably 85% of seats are to be filled  up
from amongst local candidates whereas only 15% of seats are to be filled  up
from amongst outside candidates.”
                                                         [Emphasis Supplied]

26.   Be it noted, it was contended on behalf of the appellant therein  that
the High Court had committed a manifest error by directing  for  reservation
of seats for reserved category from 15% open seats also on the  ground  that
such a reservation would exceed 50% which is  not  permissible.   The  Court
referred to the Presidential Order and eventually opined thus:-
“In the event, the ratio of the impugned  judgment  of  the  High  Court  is
given effect to having regard to the limited number of  seats  available  by
providing reservation of an additional seat,  principle  of  reservation  to
the extent is 50% would be violated. Furthermore, it is  not  for  the  High
Court to say as to the efficacy or otherwise of the policy of the  State  as
regards providing for reservation for the reserved category  candidates  and
in that view of the matter the High Court, in our opinion must  be  held  to
have committed a manifest error in issuing the  impugned  directions,  as  a
result whereof percentage of reservation would exceed 46%. Such a  direction
by the High Court is not contemplated in law.”

27.    Though  the  said  authority  had  understood  local  area  and   the
boundaries of the State, it was instructive to refer to  the  said  passage.
It is clear that it was addressing the controversy as regards  the  15%  but
dealing with the reservation  of  scheduled  castes,  scheduled  tribes  and
other backward classes within the said 15%  percentage  in  the  context  of
instructions/circular of 1979 issued  by  the  State  Government.        The
aforesaid decision makes it graphically clear that the 85%  reservation  has
been in respect of local areas and non-locals area is directly referable  to
the University area.  One has to bear in  mind  that  the  local  areas  and
local candidates have been defined in the Presidential  Order  and  it  also
empowers the State  Government  to  issue  appropriate  directions  for  the
purpose of giving effect to the Presidential Order.   In  pursuance  of  the
power conferred in the said Presidential Order,  the  State  Government  has
issued the Circular in 1979.  The Circular, as is manifest,  reiterates  the
definitions of “local area” and “local  candidates”  and  simultaneously  it
also lays the postulate the  manner  of  implementation  of  reservation  of
local candidates as stipulated in the Presidential Order.  As far as 15%  of
the available seats which are  kept  unreserved  in  terms  of  Presidential
Order, the State Government relies on the power conferred  on  it  that  the
15% of the available seats are kept unreserved subject  to  the  control  of
the State Government.  The  State  Government  has  clarified  the  position
about  the  local  candidates  in  respect  of  15%  as  provided   in   the
Presidential Order.  It covers certain categories but  the  cavil  does  not
relate to the same.  In fact, on a keen scrutiny, it  is  demonstrable  that
it  engulfs  certain  categories  which  takes  within  its  umbrella   such
candidates who are working in the State of Andhra Pradesh in  certain  State
Government or  Central  Government  or  other  public  undertakings  or  the
candidates whose spouses are in the  employment  of  the  State  or  Central
Government or  public  sector  corporation,  etc.   It  does  not  refer  to
candidates who are from outside.  That is the only interpretation which  can
be placed on the circular.  It is the situation in vogue  in  the  State  of
Andhra Pradesh since 1979 and  in  the  absence  of  any  challenge  to  the
circular, there is no need to get into  it.   Therefore,  reference  to  the
other Acts, Rules, Regulations which have been so done by Mr. Marlapalle  do
not require to be dwelt upon.
28.   One aspect that has been highlighted by Mr. Marlapalle that almost  27
years back, this Court in C. Surekha (supra) had  expressed  the  view  that
the scheme indicated in Dr. Pradeep Jain (supra)  is  in  national  interest
and competition at the national  level  is  bound  to  add  to  and  improve
quality and Ahdra Pradesh students on the whole are not at all backward  and
they would stand well on the comparative basis. The  need  for  assimilation
of the principles stated in Dr. Pradeep Jain (supra) was  felt  and  it  was
observed that there should be an appropriate amendment of  the  Presidential
Order.  However, as the Court  cannot  do  it,  it  left  to  the  competent
authorities.
29.   In this context, the decisions that have been  cited  by  the  learned
counsel for the petitioner become relevant.  In Preeti  Srivastava  (supra),
the Constitution Bench expressed that the object  of  Article  15(4)  is  to
advance  the   equality   of   principle   by   providing   for   protective
discrimination in favour of the weaker sections  so  that  they  may  become
stronger and may be able to compete equally with others more fortunate,  but
simultaneously one cannot  ignore  the  wider  interests  of  society  while
devising such special provisions.   The Court highlighted on the concept  of
national interest such as promoting excellence  at  the  highest  level  and
providing the  best  talent  in  the  country  with  the  maximum  available
facilities to excel and contribute to society which are also to be borne  in
mind.  Analysing further, the majority stated thus:-
“In the case of Dr Jagadish Saran v. Union  of  India  this  Court  observed
that at the highest scales of speciality, the best skill or talent  must  be
hand-picked by selection according to capability. Losing a  potential  great
scientist or technologist would be a national loss. That is  why  the  Court
observed that the higher the level of education the  lesser  should  be  the
reservation. There are similar observations in Dr Pradeep Jain v.  Union  of
India. Undoubtedly, Dr Pradeep Jain v. Union of  India  did  not  deal  with
reservation in favour of the Scheduled Castes and the Scheduled  Tribes.  It
dealt with reservation in favour of  residents  and  students  of  the  same
University. Nevertheless it correctly extended the principle  laid  down  in
Dr Jagadish Saran v. Union of India to  these  kinds  of  reservation  also,
holding that at the highest levels of medical  education  excellence  cannot
be compromised to the detriment of the nation.  Admissions  to  the  highest
available medical courses in the  country  at  the  superspeciality  levels,
where even the facilities for training are limited, must be  given  only  on
the basis of competitive merit. There can be no relaxation at this level.”

30.   In  Saurabh  Chaudri   (supra),  the  core  question  that  arose  for
consideration centered around the  constitutional  validity  of  reservation
whether based on domicile or institution in the  matter  of  admission  into
post-graduate courses in Government  run  medical  colleges.   In  the  said
case, the court referred to the writ petition filed by  the  candidates  who
were residents of Delhi.  They had joined various  medical  colleges  within
Delhi for undertaking their MBBS courses against the 15% all-India quota  on
being qualified in the All-India Entrance  Examination.   They  intended  to
join medical colleges in Delhi  for  their  post-graduate  medical  courses.
They were issued admission forms regard being had to the decision  in  Parag
Gupta (Dr.) v. University of Delhi[17].  The University also  informed  them
that the candidates would be entitled  to  admission  in  the  post-graduate
courses subject to the decision in the matter pending before this  Court  in
Magan Mehrotra v. Union of India[18].
31.   In Magan Mehrotra (supra) a three-Judge Bench of this Court held  that
reservation by way  of  institutional  preference  be  maintained  but  also
directed certain States to follow the pattern of  institutional  preferences
as has been indicated in Dr. Pradeep Jain (supra).  Delhi University  issued
a notification on the basis of  the  judgment  rendered  in  Magan  Mehrotra
(supra).  The writ petitioners  assailed  the  notification  issued  by  the
Delhi University as reservation was made by way of institutional  preference
for admission to post graduate courses.  After the decision was rendered  in
Magan Mehrotra (supra), a two-Judge Bench referred the matter  to  a  three-
Judge Bench which ultimately directed it to be placed  before  a  five-Judge
Bench.  The reservation of any  kind,  namely,  residence  or  institutional
preference in the constitutional backdrop was the subject matter of  assail.
 The first question posed for consideration was whether the  reservation  on
the basis of a domicile is permissible in terms of Clause 1  of  Article  15
of the Constitution of India.  The Court referred to the  decision  in  D.P.
Joshi v. State of Madhya Bharat[19] and State of U.P. v. Pradip  Tandon[20],
and answered the issue in the negative.  The second  issue  that  the  Court
addressed was whether reservation by way of institutional  preference  comes
within the suspected classification warranting strict  scrutiny  test.   The
Court referred to Ram Krishna  Dalmia  v.  Justice  S.R.  Tendolkar[21]  and
various other authorities and opined that no case  had  been  made  out  for
invoking the doctrine of strict construction or  intermediate  construction.
The third issue that the Court dwelled upon was whether the  reservation  by
institutional preference is valid.  The Court referred  to  the  authorities
in Jagadish Saran (supra), Dr. D.P. Joshi (supra), Chitra Ghosh v. Union  of
India[22] and various other decisions including that  of  Dr.  Pradeep  Jain
(supra) and opined that in Dr. Pradeep Jain (supra) a distinction  was  made
between the undergraduate course i.e. MBBS course and post-graduate  medical
course as also super specialist courses and, therefore, the  said  authority
sought to strike a balance  of  rights  and  interests  of  concerned.   The
Constitution Bench took note of the fact that the percentage of seats to  be
allotted on all-India basis, however, came to  be  modified  in  Dr.  Dinesh
Kumar  (supra).  It also took note of the fact that  the  directions  issued
from time to time regulating the admissions in different  courses  of  study
in the said case, the deviation of the said dicta by the two-Judge Bench  in
Dr. Parag Gupta (supra) wherein it created  reservation  on  domicile  which
was forbidden in Dr. Pradeep Jain (supra).  The larger Bench  also  referred
to the authority in AIIMS Students’ Union v AIIMS[23], T.M.  Pai  Foundation
v. State of Karnataka[24] and eventually held as follows:-
70. We, therefore, do not find any reason to  depart  from  the  ratio  laid
down by this Court in Dr Pradeep Jain. The logical corollary of our  finding
is that reservation by way of institutional preference must be  held  to  be
not offending Article 14 of the Constitution of India.

71. However, the test to uphold the validity of a statute on  equality  must
be judged on the touchstone of reasonableness. It was noticed in Dr  Pradeep
Jain case that reservation to the extent of 50% was held to  be  reasonable.
Although subsequently, in Dr Dinesh Kumar (II) case[25] it  was  reduced  to
25% of the total  seats.  The  said  percentage  of  reservation  was  fixed
keeping in view the situation  as  then  existing.  The  situation  has  now
changed to a great extent. Twenty years have passed. The country has  during
this time produced a large number of postgraduate doctors. Our  Constitution
is organic in nature. Being a living organ,  it  is  ongoing  and  with  the
passage of time,  law  must  change.  Horizons  of  constitutional  law  are
expanding.

32.   In Nikhil Himthani  (supra), the Court was dealing with the  grievance
that related to equality  in  the  matter  of  admissions  to  post-graduate
medical  course  in  the  medical  college  in  the  State  of  Uttarakahand
guaranteed by Article 14 of the  Constitution  which  was  violated  by  the
respondents.  After noting the contentions of the learned  counsel  for  the
parties, the Court referred to the Constitution Bench  judgment  in  Saurabh
Chaudri  (supra) and the pronouncements in Jagadish Saran  (supra)  and  Dr.
Pradeep Jain (supra) and came to hold thus:-
“We now come to  Clauses  2  and  3  of  the  eligibility  criteria  in  the
Information Bulletin. Under Clauses 2 and 3, a domicile of  Uttarakhand  who
has passed MBBS from a medical college  of  some  other  State  having  been
admitted either through the 15% all-India quota or through  the  pre-medical
test conducted by the State Government concerned has been made eligible  for
admission to a postgraduate medical course in the State quota. Obviously,  a
candidate who is not a domicile of Uttarakhand State  is  not  eligible  for
admission  to  the  postgraduate  course  under  Clauses  2  and  3  of  the
eligibility criteria. Preference, therefore is given only on  the  basis  of
residence or domicile in the State of Uttarakhand under Clauses 2 and  3  of
the eligibility criteria and such preference on the basis  of  residence  or
domicile within a State has been held to be violative of Article 14  of  the
Constitution in Pradeep Jain v. Union of India and Magan Mehrotra  v.  Union
of India.

33.   In Vishal Goel (supra), the two-Judge Bench reiterated  the  principle
laid down in Nikhil Himthani  (supra).
34.   At this  juncture,  we  may  also  refer  to  the  Constitution  Bench
decision in Faculty Association of All India Institute of  Medical  Sciences
v.  Union  of  India[26].   In  the  said  case  issue   arose   about   the
applicability of reservation in respect of speciality and  super  speciality
faculty posts in all-India Institute of Medical Sciences.   The  matter  was
referred to a  larger  Bench  by  the  three-Judge  Bench  in  view  of  the
decisions rendered in Jagadish Saran (supra), Dr. Pradeep Jain  (supra)  and
Indra Sawhney v. Union of India[27].  The Constitution  Bench  after  noting
various contentions ruled that:-
“22. Although the matter has been argued at  some  length,  the  main  issue
raised regarding reservation at the superspeciality level has  already  been
considered in Indra Sawhney case  by  a  nine-Judge  Bench  of  this  Court.
Having regard to such decision, we are not inclined to take any  view  other
than the view expressed by the nine-Judge Bench on  the  issue.  Apart  from
the decisions rendered by this Court in  Jagadish  Saran  case  and  Pradeep
Jain case, the issue also fell for consideration in Preeti  Srivastava  case
which was also decided by a Bench of five Judges. While  in  Jagadish  Saran
case and in Pradeep Jain case it was categorically held that there could  be
no compromise with merit at the superspeciality stage, the  same  sentiments
were also expressed in Preeti Srivastava case as well.

23. In Preeti Srivastava case, the Constitution Bench  had  an  occasion  to
consider Regulation 27 of the Post Graduate Institute of  Medical  Education
and Research, Chandigarh Regulations, 1967, whereby 20% of  seats  in  every
course of  study  in  the  institute  was  to  be  reserved  for  candidates
belonging to the Scheduled Castes, Scheduled Tribes or other  categories  of
persons, in accordance with the general  rules  of  the  Central  Government
promulgated  from  time  to  time.  The  Constitution  Bench  came  to   the
conclusion that Regulation 27 could not have any application at the  highest
level of superspeciality as this would defeat the very object  of  imparting
the best possible training to selected  meritorious  candidates,  who  could
contribute to the advancement of knowledge in the field of medical  research
and its applications. Their Lordships ultimately went on to hold that  there
could not be any type of relaxation at the superspeciality level.”

35.   Be it noted, the Court laid  immense  emphasis  on  paragraph  836  of
Indra Sawhney (supra) wherein the nine-Judge Bench has observed:-
“...that there were certain services and posts where either  on  account  of
the nature of duties attached to them or  the  level  in  the  hierarchy  at
which they stood, merit alone counts.  In  such  situations,  it  cannot  be
advised to  provide  for  reservations.  In  the  paragraph  following,  the
position was made even more clear when Their Lordships  observed  that  they
were of the opinion that in certain services in respect  of  certain  posts,
application of rule of  reservation  may  not  be  advisable  in  regard  to
various technical posts including  posts  in  superspeciality  in  medicine,
engineering and other scientific and technical posts.”

36.   Thereafter, the Court proceeded to state further:-
“We cannot take a different view, even though it  has  been  suggested  that
such an observation was not binding,  being  obiter  in  nature.  We  cannot
ascribe to such a  view  since  the  very  concept  of  reservation  implies
mediocrity and we will have to take note of the caution indicated  in  Indra
Sawhney case. While reiterating the views expressed by the nine-Judge  Bench
in Indra Sawhney case, we dispose of the two civil appeals in the  light  of
the said views, which were also expressed in Jagadish  Saran  case,  Pradeep
Jain case, Preeti Srivastava case. We impress upon  the  Central  and  State
Governments  to  take  appropriate  steps  in  accordance  with  the   views
expressed in Indra Sawhney  case  and  in  this  case,  as  also  the  other
decisions referred to above, keeping in mind the provisions of  Article  335
of the Constitution.”

37.   We have referred to the aforesaid  judgments  in  extenso  as  learned
counsel appearing for the petitioners have laid immense emphasis that  there
cannot be reservation of any kind  in  respect  of  post-graduate  or  super
speciality courses regard being had to the law laid down by many a  judgment
of this Court.  It is urged that the State of Andhra Pradesh  and  Telangana
cannot apply the domicile test only to admit its own students and  that  too
also in respect of 15%  quota  meant  for  non-local  candidates.   We  have
already analysed the factual score and the legal  position.   The  undivided
State of Andhra Pradesh enjoys a  special  privilege  granted  to  it  under
Article  371-D  of  the  Constitution  and  the  Presidential  Order.    The
judgments of the larger Bench do not refer to the said Article nor  do  they
refer to the Presidential Order, for the said issue did  not  arise  in  the
said cases.  A scheme has been laid down in the case  of  Dr.  Pradeep  Jain
(supra) and the concept of percentage had  undergone  certain  changes.   In
Reita Nirankari (supra), the same three-Judge Bench clarified  the  position
which we have already  reproduced  hereinbefore.   However,  in  C.  Surekha
(supra), the Court had  expressed  its  view  about  the  amendment  of  the
Presidential Order  regard  being  had  to  the  passage  of  time  and  the
advancement in the State of Andhra Pradesh.  It has  been  vehemently  urged
by Mr. Marlapalle that despite 27 years having been elapsed,  the  situation
remains the same.   We take note of the said  submission  and  we  are  also
inclined to echo the observation that was made in the case of Fazal  Ghafoor
(supra) wherein it has been stated thus:-
“In Dr Pradeep Jain case this Court has observed that in Super  Specialities
there should really be no reservation. This is so in  the  general  interest
of the country and for  improving  the  standard  of  higher  education  and
thereby improving the quality of available medical services  to  the  people
of India. We hope and trust that the  Government  of  India  and  the  State
Governments shall seriously consider  this  aspect  of  the  matter  without
delay and appropriate guidelines shall be  evolved  by  the  Indian  Medical
Council  so  as  to  keep  the  Super  Specialities  in  medical   education
unreserved, open and free.”

38.   The fond hope has remained in the sphere  of  hope  though  there  has
been a progressive change.  The said privilege remains unchanged, as  if  to
compete with eternity.  Therefore, we echo the same  feeling  and  reiterate
the aspirations of others so that authorities  can  objectively  assess  and
approach the situation so that the national interest can  become  paramount.
We do not intend to add anything in this regard.
39.   Consequently, the writ petition as far as it pertains to the State  of
Andhra Pradesh and Telangana, is  dismissed.   As  regards  State  of  Tamil
Nadu, the matter be listed on November 4, 2015 for hearing.


                                             .............................J.
                                                               [Dipak Misra]



                                             ..........................., J.
    [Prafulla C. Pant]
New Delhi
October 27, 2015

-----------------------
[1]     (1999) 7 SCC 120
[2]     (2013) 10 SCC 237
[3]     (2014) 11 SCC 456
[4]     (2003) 11 SCC 146
[5]     (1984) 3 SCC 654
[6]     (1984) 3 SCC 706
[7]     (1986) 3 SCC 727
[8]     (1988) 4 SCC 526
[9]     (1988) Supp SCC 794
[10]    (1979) 2 SCC 34
[11]    (1971) 2 SCC 22
[12]    (1980) 2 SCC 768
[13]    (1987) 1 SCC 362
[14]    (1980) 3 SCC 625
[15]    (1985) 4 SCC 458
[16]    (2003) 5 SCC 350
[17]    (2000) 5 SCC 684
[18]    (2003) 11 SCC 186
[19]    (1955) 1 SCR 1215 = AIR 1955 SC 334
[20]    (1975) 1 SCC 267
[21]    AIR 1958 SC 538
[22]    (1969) 2 SCC 228
[23]    (2002) 1 SCC 428
[24]    (2002) 8 SCC 481
[25]    (1986) 3 SCC 727
[26]    (2013) 11 SCC 246
[27]    (1992) Supp (3) 217

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