@JUDGMENTTAG-ORDER
V.V.S. Rao, J.@mdashDr. I. Devanand, petitioner herein, after completion of B.D.S., appeared for M.D.S. Entrance Test. He obtained the rank 58 and he belongs to Osmania University local area. He is a Scheduled Caste- C candidate (SC-C). He claims that among all the Scheduled Caste candidates he stood first. He is aggrieved by the action of first respondent University in selecting and admitting second respondent SC-C belonging to Andhra University local area to M.D.S. course in the third respondent college. Therefore, he filed the present Writ Petition seeking declaration that the action of first respondent in providing admission to less meritorious candidate - second respondent herein; by earmarking seat reserved for SC-C to Andhra University local area ignoring the top ranking merit of the petitioner among SC-C category candidates as illegal, arbitrary and ultra vires. The petitioner also prays for a consequential direction to first respondent, namely, N.T.R. University of Health Sciences ("University" for brevity) to admit the petitioner in M.D.S.course in a seat reserved for SC-C category out of the seats allocated to Osmania University local area.
2. The petitioner''s case in brief is as follows. There are fourteen seats in M.D.S. course out of which 15% are reserved in favour of SC. The reservation of seats in favour of SCs is governed by Andhra Pradesh Scheduled Castes (Rationalization of Reservations) Act, 2000 (hereafter called, the Rationalization Act) and Andhra Pradesh Scheduled Castes (Rationalization of Reservations) Rules, 2000 (hereafter called, the Rationalization Rules). As per Section 3 of the Rationalization Rules 6% of seats both in public appointments and admissions to educational institutions, out of 15% seats meant for SCs, shall have to be reserved to persons belonging to SC-C, as per clause (C) of Section 3 of the Act. Accordingly in a cycle of 100 seats, Sl. Nos. 16, 27, 47, 66, 77 and 91 of the roster as specified in Rule 22(e) of the A.P. State and Subordinate Service Rules, 1996 are earmarked for SC-C candidates.
3. While making admissions to M.D.S. course, the authorities have to comply with the provisions of Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974 (hereafter called, the Presidential Order), and also have to follow the rules made under Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (hereafter called, Act 5 of 1983). It is also permissible for the University to make necessary regulations to give effect to the Statutory Rules without contravening the provisions of the Presidential Orderand Act 5 of 1983. If there is any conflict in giving effect to these legal provisions, the provisions of Presidential Order would prevail and therefore local area reservation would prevail over social reservation. Nonetheless, having regard to the provisions of Act 5 of 1983, which give importance to merit, while making admissions, the University cannot sacrifice merit. The University earmarked and allocated SC-C seat in M.D.S. course to Andhra University local area during last year and this year. This is contrary to the Presidential Order. Out of fourteen available M.D.S. seats, twelve seats have to be reserved for candidates belonging to "local areas" and admissions are to be made as per the procedure prescribed in Annexure-IV under G.O.P. No. 646, dated 10.07.1979 issued by the Government to give effect to the Presidential Order. The M.D.S. course being statewide course, five seats have been earmarked to Andhra University local area and four seats and three seats have been earmarked for Osmania University local area and Sri Venkateswara University local area respectively. The two remaining seats are non-reserved seats against which all the candidates, including the local candidates belonging to three local areas can be considered.
4. As per rotation method for the purpose of reserving seats for the academic year 2004-2005, two seats are earmarked and they are to be filled in by candidates belonging to SC-B and SC-C categories. These two seats shall have to be filled only by high-merited candidates belonging to those classes irrespective of local area. The petitioner being highest ranking SC-C candidate, is entitled to claim the SC seat and for academic year 2004-2005, first respondent has no power or authority to earmark the seat meant for SC-C candidate to any particular local area. Second respondent secured rank No.170 and therefore, the allocation of the seat to Andhra University local area is ultra vires and the admission of second respondent is illegal. If the seat meant for SC-C candidate is allocated to Osmania University local area, the petitioner would have been admitted.
5. The N.T.R. University of Health Sciences, first respondent herein, filed counter affidavit through its Registrar. The first respondent raised preliminary objection as to maintainability of the writ petition placing reliance on the decision of the Supreme Court in
6. Learned Senior Counsel for petitioner Sri M.R.K.Choudary made the following submissions. The method and manner adopted by the first respondent in filling up the two seats reserved for SC category is contrary to the Government order in G.O.P. No. 646 dated 10.07.1979. He submits that as per paragraphs 5 to 7 of the procedure for implementation of Presidential Order in support of the statewide institutions (Annexure-III of G.O.P. No. 646 dated 10.07.1979), the University has to prepare a provisional list of all eligible candidates for admission on the basis of relative merit among the local and non-local candidates duly considering the Rule of Reservation. After so doing, the number of local candidates in relation to each University local area has to be found out and if such number of local candidates either equals or exceeds the number of seats reserved/allocated in favour of the local candidates, such provisional list shall be deemed to be the final admission list. If the number of local candidates in any of the three local areas falls short of the number of seats reserved in favour of local candidates, the local candidates in relation to the deficit University local area not included in the provisional list, shall be arranged in order of merit in a separate remainder list, who will be given admission in a particular University local area to fill up the deficit, by eliminating the reverse order, the candidates not belonging to particular local area by replacing with the local candidates. According to learned Senior Counsel, first respondent failed to observe this Rule. He would also contend that even while applying with Rule of Reservation while adhering to local area reservation, the University cannot ignore the inter se merit among the SC candidates. Yet another submission made by learned Senior Counsel is that the University has committed error in treating AU local area as deficit area and allotting the SC-C reserved seat to that area.
7. Learned Standing Counsel for the University Dr.Y.Padmavathi argued as follows. As per the orders of this Court in W.P. No. 17008 of 2003 dated 23.12.2003, all the fourteen seats in M.D.S. course are clubbed and twelve seats are reserved for three local areas. The admissions are made duly following the procedure laid down in G.O.P. No. 646 dated 10.07.1979 in accordance with the Presidential Order. This academic year being fifth roster year, one seat each has been reserved for SC-B and SC-C candidates and as per G.O.Ms. No. 464 dated 18.09.1993, one seat in Prosthetic Dentistry and one seat in Paedodontic with Preventive Dentistry have to be reserved for SC candidates. M.D.S. being a statewide course, seats are distributed among AU area, OU area and SVU area in the ratio of 42:36:22 and the seats are filled up as per paragraphs 5 and 6 of Annexure to G.O.P. No. 646 dated 10.07.1979. As per paragraph 10 of the said Government Order, if the Rule of Reservation is inconsistent with the Presidential Order, the latter would prevail and the petitioner cannot have any grievance because no candidate with a lower rank than the petitioner is admitted in OU local area, to which the petitioner belongs and all the candidates admitted in OU local area have higher ranks thank the petitioner including the candidate admitted under BC-D and ST categories. When the limited seats are available, the authorities cannot ignore Presidential Order and apply the principle of merit while making admissions to the seats earmarked for a local area.
8. Learned counsel for second respondent Sri Ganta Rama Rao while adopting the submissions of the learned Standing Counsel for University submits that if there is a due compliance with the Rule of Reservation in the over all admissions, a candidate belonging to OU local area cannot complain if a low ranking candidate is admitted in another local area according to his own merit. According to the learned counsel, such a method would be in accordance with the Presidential Order.
9. The background of the case and the rival contentions would give rise to only point for consideration as to validity of method adopted by selection committee for M.D.S. while filling up the fourteen available seats in seven branches (courses) of M.D.S.
10. After the announcement of the results, the counselling was held at Vijayawada on 27.05.2004 under the Chairmanship of the Principal of Government Dental College and Hospital, Hyderabad. The selection committee called the candidates according to the rank from list and were asked to give their option in order of the preference (preference to the course) in a prescribed option form. Based on the option form, the selection committee selected the candidates in accordance with Rule of Reservation in G.O.Ms. No. 464, dated 18.09.1993; G.O.Ms. No. 47 dated 31.05.2000 and the orders of this Court dated 12.04.2004 in W.P. No. 17332 of 2003.
11. A copy of the proceedings dated 27.05.2004 is placed before this Court. A perusal of the same would show that the selection committee took up the selection of candidates for twelve seats reserved for local areas and two seats kept unreserved. The candidates were called in order of merit and if high ranking candidate belonging to a particular area opt for a seat in either of the branches and if such branch for the roster year is reserved for such local area in any of the branches, the first seat was filled up in order of merit. Be it noted that it is not denied nor disputed that as per G.O.Ms. No. 464 dated 18.09.1993, Government has prescribed the cycle of seven years for earmarking the second seat for reserved classes by rotation. Be that as it is when the second seat, which was reserved for reserved classes, is filled up as per G.O.Ms. No. 47, the candidates were called according to their merit. If a particular candidate belonging to OU local area and also belonging to SC/ST/BC, selects a branch of his choice according to his merit and if seat is available he is selected and next ranking SC/ST/BC seat would not be able to get selection. In this method, whether a reserved seat goes to a particular local area depends on the option or choice given by the high-ranking reserved candidate. All these are regulated by Government orders and option exercised by candidates. The University has nothing to do in this and the University cannot reserve any seat in any local area for a particular reserved candidate. By the time, the petitioner with rank 58 turn came before the selection committee, one seat for BC-D and one seat for ST were already filled up and all the four seats earmarked for OU
12. local area got filled up. In such a situation, the petitioner who is the local candidate of OU local area cannot have any grievance if a low ranking SC-C candidate is selected in AU local area. In case the petitioner has a better rank and opt for non-local seat, the things would have been different. The method adopted by selection committee is in accordance with the Presidential Order and the guidelines issued by the Government of Andhra Pradesh in exercise of the powers under paragraph 8 of the Presidential Order. To appreciate this, a brief reference to this would be necessary.
13. With a view to regulate admissions into educational institutions on the basis of merit and with a view to put an end to scourge of Capitation Fee, the State Legislature enacted Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (for short, the Act 5 of 1983). Section 3 of the Act postulates that admission into educational institutions shall be made either on the basis of marks obtained in the qualifying examination or on the basis of ranking assigned in the entrance test conducted by appropriate authority. However, as per proviso to Section 3(1) of the Act 5 of 1983, admissions to Medical and Engineering Courses shall invariably be only on the basis of ranking assigned in the Common Entrance Test. Sub section (2) of Section 3 of the Act 5 of 1983 lays down that the admission into educational institutions shall be subject to Reservation Rules and the Presidential Order.
14. The Presidential Order made under 371-D (2) of the Constitution of India is given overriding effect by reason of paragraph 9 thereof. Paragraph 3 describes three local areas in the State of Andhra Pradesh - Andhra University (AU) local area, Osmania University (OU) local area and SV University (SVU) local area. A statewide educational institution is specified in Schedule to the Presidential Order. Government Dental College is a statewide educational institution and all the courses offered by it are statewide courses. Paragraph 6 of the Presidential Order deals with Reservation (Reservation for local candidates) in statewide Universities and statewide educational institutions. As seen above in a State, the available seats in every course of study in a state wide educational institution shall be reserved in favour of and allocated among local candidates of the three local areas in the ratio of 42:36:22 respectively. But at least one seat shall be kept unreserved. Paragraph 10 of the Presidential Order is relevant and reads as under:
10. Removal of doubts:- For the removal of doubts, it is hereby declared that nothing in this Order shall effect the operation of any provisions made by the State Government or other competent authority (whether before or after the commencement of this Order) in respect of reservations in the matter of admission to any University or other educational institution in favour of 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 this Order.
15. A cursory perusal of the Presidential Order would show that the Government has to adhere to local area reservation as well as statutory reservation. But if any order made by the Government providing for reservation is inconsistent with the Presidential Order, the Government order would have to yield to latter. The Government of Andhra Pradesh in accordance with paragraph 8 of Presidential Order has issued G.O.P. No. 646 dated 10.07.1979. By the said order, the Government directed that the procedure set out in Annexures to the said Government Order should be followed in implementation of the reservation in favour of local candidates under the Presidential Order. Annexure-III regulates admission to non-statewide Universities and Annexure-IV regulates admissions to statewide Universities and statewide educational institutions. The Government Order also contains instructions for following Rule of Reservation in favour of candidates belonging to Scheduled Castes, Scheduled Tribes and Backward classes. Paragraphs 5, 6 and 7 are relevant for the purpose of this Case.
16. Paragraphs 5, 6 and 7 of Annexure-IV of G.O.P. No. 646 read as under:
5.From amongst all the eligible applicants whether such applicants are local candidates in relation to any of the three University local areas or not, a provisional list of admissions to fill all the available seats shall be drawn up. This list shall be prepared on the basis of the relative merits of all the eligible applicants and the reservations in favour of scheduled castes, scheduled tribes, backward classes, women etc., as provided in the relevant rules of admission. The candidates included in the provisional admission list shall be arranged in order of merit or where the rules of admission provide for their arrangement in any other order, in the order so provided.
6.The provisional admission list shall be scrutinized to ascertain number of local candidates in relation to each University local area that find a place in that list. If the number of local candidates in relation to each University area that find a place in the provisional admission list equals or exceeds the number of seats reserved and allocated in favour of the local candidates of each such area then such provisional admission list shall be deemed to be the final admission list.
7. If, however, on the scrutiny referred to in para 6 above it is found that the number of local candidates in relation to any one or more University areas falls short of the number of seats reserved in favour of the local candidates of such University area or areas (referred to as "deficit University area or areas") the local candidates in relation to the deficit University area or areas, not included in the provisional admission list, shall be arranged in order of merit in a separate list referred to as the remainder list. Thereafter candidates finding a place in the provisional admission list and belonging to either of the following two categories viz,
(a) Non-local candidates (i.e., those who are not local candidates in respect of any of the three University areas;) and
(b) Local candidates of any University area who are in excess of the number of seats reserved and allocated in favour of the local candidates of such University area shall be successively eliminated in reverse order from the bottom of the provisional admission list and shall be replaced by local candidates in relation to the deficit University area or areas selected in order of merit from the Remainder list; so however, that the provisional relating to reservations in favour of Scheduled Castes, Scheduled Tribes, backward classes, women etc. are observed to the extent that these are not inconsistent with the Andhra Pradesh Educational Institution (Regulation of Admission) Order, 1974.
Whereas a result of the elimination of candidates falling under category (b) above the number of local candidates in relation to any University area remaining in the provisional admission list has been reduced so as to equal the number of seats reserved and allocated in favour of the local candidates of the University area, there shall be no further elimination of candidates in respect of that University area. Likewise where as a result of the replacement by candidates from the Remainder list the number of local candidates in relation to any University area included in the Provisional admission list has gone up so as to equal the number of seats reserved and allocated in favour of the local candidates in relation to that University area, there shall be no further replacement by local candidates in relation to that University area from the Remainder list. This process of successive elimination and replacement shall continue until the number of local candidates in respect of each deficit University area or areas, as the case may be, in the provisional admission list equals the number of seats reserved and allocated in favour of the local candidates in respect of such University area or areas; at that stage, the provisional admission list as so modified shall be deemed to be the final admission list.
The above procedure for filling up seats in a non-statewide institution is comprehensive and does not require any further elucidation. But the method of implementation of reservation in favour of local candidates under Presidential Order in a non-statewide institution may be noticed in brief, which is as under.
i) The number of available seats in a course has to be computed by deducting the seats reserved for candidates from outside the State. Thereafter, if the number of seats exceeds more than three, eighty five per cent of the seats have to be calculated and are to be distributed in three local areas in the ratio of 42:36:22 keeping in view paragraph 4 of the Annexure-IV.
ii) In the second stage, a provisional list of admissions has to be prepared on the basis of relative merit local areawise, duly giving effect to relevant Rules of Reservation for SC/ST/BC/Women etc. A reading of paragraphs 4 and 5 would show that a merit list of all the applicants referred to in paragraph 5 only means the merit list of all local candidates in relation to local area.
iii) a) In the third stage, the provisional list of each local area will be verified. If the number of local candidates including reserved candidates is equal or more than the number of seats reserved for local area as per paragraph 6 of the Presidential Order, the same shall be deemed to be final admission list.
b) In the eventuality of the provisional list containing less number of local candidates including the reserved candidates, the process of elimination is to be resorted in the reverse order. That is to say, the last candidate in the provisional list will be eliminated and replaced by a local candidate according to merit from the list prepared of all the merit candidates, which is referred to as remainder list.
iv) As per illustration ''C''5 of Annexure-IV, if the candidate proposed to be eliminated is a Scheduled Caste candidate and if such elimination fouls the Rule of Reservation in favour of SC/ST/BC etc, such Scheduled Caste candidate can only be replaced by the first available Scheduled Caste candidate in the remainder list, who is eligible for such replacement. A reading of illustration ''C'' together with paragraphs 5, 6 and 7 would show that in relation to a local area, the local Scheduled Caste candidate or for that matter a local candidate claiming reservation alone has to be given seat removing the last ranking Scheduled Caste candidate from the provisional list presumably for the reason that such a candidate is a non local candidate. This is supported by the illustration ''C'' of Annexure-III, which makes clear that the Scheduled Caste candidate replacing the last ranking candidate should be necessarily a local candidate from the remainder list.
17. The submission of the learned Senior Counsel for petitioner therefore cannot be accepted. The Rule of Reservation in favour of SC/ST/BC cannot be given effect to if it is inconsistent with the Presidential Order. If the strict compliance with the Rule of Reservation results in depriving a local area of allotted quota of seats, the reservation can even be ignored. In such a situation, it is possible that a Schedule Caste candidate, who got less rank in the over all merit may get admission in a local area of his eligibility, which may result in depriving admission to a Scheduled Caste candidate of other local area with higher rank. That would not give rise to any enforceable right as reservation of local candidate takes precedence over reservations for SC/ST/BC.
18. In an unreported judgment in W.P.24959 of 2003, dated 31.03.2004, my learned brother Hon''ble Sri Justice A.Gopal Reddy considered similar question. While rejecting such a plea, it was held:
19. The Government in G.O.P. No. 646 dated 10.07.1979 issued instructions for filling up of vacancies in State Wide Universities and Para-7(b) of Annexure-IV provides the procedure to be followed in filling up of the vacancies among the three University areas. All the instructions issued in G.O.P. No. 646 dated 10.07.1979 contemplate distribution of seats among the three University areas to see that all the University areas would be represented to the seats which were earmarked to the respective Universities.
20. In view of the same, the contention of the learned counsel for the petitioner that the candidates who have secured lesser rank than the petitioner have got admission cannot be countenanced.
21. In the result, for the above reasons, I do not find any merit in the writ petition and is accordingly dismissed without any order as to costs.
