# AND OTHERS v. UNION OF INDIA AND OTHERS

- **Citation:** [2015] 14 S.C.R. 328
- **Court:** Supreme Court of India
- **Decided:** 2015-10-27
- **Bench:** Dipak Misra, Prafulla C. Pant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/and-others-v-union-of-india-and-others-30609
- **Pages:** 46

## Headnote

c
. Education!EducationaL Institutions - Admission -
Super-specialty courses - Reservation based on residence
or institutional preference - Challenge to, on ground that it is
absolutely against thf/I national interest and plays foul of
equality clause engrafted in the Constitution - Plea of writ
D petitioners that reservations made by the States of Andhra
Pradesh and Telangana 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
E action smacks of arbitrariness and unreasonableness -
States of Andhra Pradesh and Telangana, however, drew
support from the Presidential order, namely, Andhra
Pradesh Educational Institutions (Regulations and
Admissions) order 1974 issued under Article 371-D of the
F Constitution and G.O.P. No.646 dated 101• July, 1979 issued
by the State of Andhra Pradesh - Their contention that the
claim of the petitioners to appear in the entrance test
conducted for admission into the medical super-specialty
courses was contrary to the scheme of the Presidential Order
G and the 1979 circular- Submission made by 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 - Plea of petitioners that there.
H
328
. DR. SANDEEP S/O SADASHIVRAO KANSURKAR v.
329
UNION OF INDIA
cannot be reservation of any kind in respect of post.-graduate A
or super speciality courses - It was 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 - Held: The
undivided State of Andhra Pradesh enjoys a special privilege
B
granted to it underArticle 371-D of the Constitution and the
Presidential Order - A scheme has been laid down in the
case of Dr. Pradeep Jain and the concept of percentage had
undergone certain changes ...: In Reita Nirankari, the same
three-Judge Bench clarified the position - However, in C. C
Surekha, 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 - A hopeful observation was made in the
case of Fazal Ghafoor that the Government of India and the D
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 -
The fond hope has remained in the sphere of E
hope though there has been a progressive change - The
·said privilege remains unchanged, as if to compete with
eternity- Therefore, this Court echoes the same feeling and
reiterates the aspirations of others so that authorities can
objectively assess and approach the situation so that the F
national interest can become paramount - This Court does
not intend to add anything in this regard- Consequently, the
writ petition as far as it pertains to the State of Andhra Pradesh
and Telangana, is dismissed .
• Dr. Preeti Srivastava and Another vs. State of M.P.
· G
and Others (1999) 7SCC120: 1999 (1) Suppl.
SCR 249; Nikhil Himthani vs. State of Uttarakhand
(2013) 10 sec 237: 2013 (14) SCR 23; Vishal
Goel vs. State of Karnataka (2014) 11 SCC 456;
H
330
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2015] 14S.C.R.
Saurabh Chaudri vs. Union of India (2003) 11
SCC 146: 2003 (5) Suppl. SCR 152; Dr. Pradeep
Jain and Others vs. Union of India and Others
(1984) 3 sec 654 : 1984 (3) SCR 942; Reita
Nirankari vs. Union of India (1984) 3 SCC 706;
Dr. Dinesh Kumar vs. Motilaf Nehru Medical
College (1986) 3 sec 121: 1986 (3) SCR 345;
C. Surekha vs. Union of India (1988) 4 SCC 526:
Dr. Fazal Ghafoor vs. Union of India and Others
(1988) Supp SCC

## Text

_Characters 0–39,762 of 87,887. This is a partial read: ask again with offset=39762 for what follows._

[2015] 14 S.C.R. 328 ,
.A
DR. SANDEEP S/O SADASHIVRAO KANSURKAR
B
AND OTHERS
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No. 444 of 2015)
OCTOBER 27, 2015
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
c
. Education!EducationaL Institutions - Admission -
Super-specialty courses - Reservation based on residence
or institutional preference - Challenge to, on ground that it is
absolutely against thf/I national interest and plays foul of
equality clause engrafted in the Constitution - Plea of writ
D petitioners that reservations made by the States of Andhra
Pradesh and Telangana 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
E action smacks of arbitrariness and unreasonableness -
States of Andhra Pradesh and Telangana, however, drew
support from the Presidential order, namely, Andhra
Pradesh Educational Institutions (Regulations and
Admissions) order 1974 issued under Article 371-D of the
F Constitution and G.O.P. No.646 dated 101• July, 1979 issued
by the State of Andhra Pradesh - Their contention that the
claim of the petitioners to appear in the entrance test
conducted for admission into the medical super-specialty
courses was contrary to the scheme of the Presidential Order
G and the 1979 circular- Submission made by 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 - Plea of petitioners that there.
H
328
. DR. SANDEEP S/O SADASHIVRAO KANSURKAR v.
329
UNION OF INDIA
cannot be reservation of any kind in respect of post.-graduate A
or super speciality courses - It was 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 - Held: The
undivided State of Andhra Pradesh enjoys a special privilege
B
granted to it underArticle 371-D of the Constitution and the
Presidential Order - A scheme has been laid down in the
case of Dr. Pradeep Jain and the concept of percentage had
undergone certain changes ...: In Reita Nirankari, the same
three-Judge Bench clarified the position - However, in C. C
Surekha, 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 - A hopeful observation was made in the
case of Fazal Ghafoor that the Government of India and the D
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 -
The fond hope has remained in the sphere of E
hope though there has been a progressive change - The
·said privilege remains unchanged, as if to compete with
eternity- Therefore, this Court echoes the same feeling and
reiterates the aspirations of others so that authorities can
objectively assess and approach the situation so that the F
national interest can become paramount - This Court does
not intend to add anything in this regard- Consequently, the
writ petition as far as it pertains to the State of Andhra Pradesh
and Telangana, is dismissed .
• Dr. Preeti Srivastava and Another vs. State of M.P.
· G
and Others (1999) 7SCC120: 1999 (1) Suppl.
SCR 249; Nikhil Himthani vs. State of Uttarakhand
(2013) 10 sec 237: 2013 (14) SCR 23; Vishal
Goel vs. State of Karnataka (2014) 11 SCC 456;
H
330
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2015] 14S.C.R.
Saurabh Chaudri vs. Union of India (2003) 11
SCC 146: 2003 (5) Suppl. SCR 152; Dr. Pradeep
Jain and Others vs. Union of India and Others
(1984) 3 sec 654 : 1984 (3) SCR 942; Reita
Nirankari vs. Union of India (1984) 3 SCC 706;
Dr. Dinesh Kumar vs. Motilaf Nehru Medical
College (1986) 3 sec 121: 1986 (3) SCR 345;
C. Surekha vs. Union of India (1988) 4 SCC 526:
Dr. Fazal Ghafoor vs. Union of India and Others
(1988) Supp SCC 794: Chief Justice of A.P. vs.
L. \I.A. Dixitulu (1979) 2 SCC 34: 1979 (1) SCR
26; N. Vasundara v. State of Mysore (1971) 2 SCC
22; Jagdish Saran v. Union of India (1980) 2 SCC
768 : 1980 (2) SCR 831; P. Sambamurthy v. State
of Andhra Pradesh (1987) 1 SCC 362: 1987 (1)
SCR 879; Minerva Mills Ltd. v. Union of India
(1980) 3 SCC 625: P. Sampath Kumar v. Union
of India (1985) 4 SCC 458 : ; NTR University of
Health Sciences v. G Babu Rajendra Prasad and
Anr. (2003) 5 sec 350 : 2003 (2) SCR 781; Parag
Gupta (Dr.) v. University of Delhi (2000) 5 SCC
684 : 2000 (3) SCR 633; Magan Mehrotra v.
Union of India (2003) 11 SCC 186; D.P. Joshi v,
State of Madhya Bharat(1955) 1SCR1215; State
ofU:P. v. Pradip Tandon (1975) 1SCC267: 1975
(2) SCR 761; Ram Krishna Da/mia v. Justice S.R.
Tendo/kar AIR 1958 SC 538; Chitra Ghosh v.
Union of India; A/IMS Students' Union v A/IMS
(2002) 1 sec 428 : 2001 (2) Suppl. SCR 79; T.M.
Pai Foundation v. State of Karnataka (2002) 8
SCC 481 : 2002 (3) Suppl. SCR 587; Faculty
Association of All India Institute of Medical
Sciences v. Union of India, (2013) 11 SCC 246;
Indra Sawhney v. Union of India (1992) Supp (3)
217 : 1992 (2) Suppl. SCR 454 -referred to.
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v.
331
UNION OF INDIA
Case Law Reference
A
(1999) 1sec120
referred to Para 8
(2013) 1 o sec 231
referred to Para 8
(2014) 11 sec 456
referred to Para 8
(2003) 11 sec 146
referred to Para 8
B
(1984) 3 sec 654
referred to Para 12
(1984) 3 sec 106
referred to Para 12
(1986) 3 sec 121
referred to Para 12
c
(1988) 4 sec 526
referred to Para 12
(1988) Supp sec 794
referred to Para 12
(1979) 2 sec 34
referred to Para 17
(1971) 2 sec 22
referred to Para 19
D
(1980) 2 sec 768
referred to Para 19
(1987) 1 sec 352
referred to Para 21
(1980) 3 sec 625
referred to Para 21
E
(1985) 4 sec 458
referred to Para 21
(2003) 5 sec 350
referred to Para 25
(2000) 5 sec 684
referred to Para 30
(2003) 11 sec 186
referred to Para 30
F
(1955) 1 SCR 1215
referred to Para 31
(1975) 1 SCC-267
referred to Para 31
AIR 1958 SC 538
referred to Para 31
(2002) 1 sec 428
referred to Para 31
G
(2002) 8 sec 481
referred to Para 31
(2013) 11sec246
referred to Para 34
(1992) Supp (3) 217
referred to Para 34
H
332
SUPREME COURT REPORTS
[2015] 14S.C.R.
A
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
444 of2015.
Under Article 32 of the Constitution of India.
Mukul Rohtagi, AG, Ms. V. Mohna, Ms. lndu Malhotra, B.
H. Marlapalle,Sr. Advs., Ajay Sharma, Ms. Madhvi Diwan, Ms.
B Diksha Rai, D S. Mahra,Amol B. Karande, Varun Singh,Apoorv
Shukla, Advs. for the Appellants.
Rakesh Dwivedi, Harin P. Raval, Sr.Advs., Subramonium
Prasad, B. Balaji, Rakesh Sharma, Ms. R. Shase, Gaurav
C Sharma, Guntur Prabhakar, Ms. Prema Singh, S. Udaya Kumar
Sagar, Krishna Kumar Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The gravamen of grievance and
the substratum of discontent of the petitioners in this writ
D 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
E 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,
F
Maharashtra, Uttar Pradesh, Gujarat, Rajasthan, Delhi,
Kamataka, 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 Pradesti, Telangana
G 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
H the said situation creates a clear disparity, and further a state
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v.
333
UNION OF INDIA[DIPAK MISRA, J.)
of inequality has been allowed to reign in the aforesaid three A
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
B
are not having any government institutes offering superspecialty 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, c
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 D
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
E
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 F
197 4 (for short "the Presidential Order") issued under Article
371-D of the Constitution and G.O.P. No.646 dated 1 Q•h July,
1979 issued by the State of Andhra Pradesh (for short, 'the
1979 circular'), which are really not applicable to the superspecialty courses, for the legal system which prevails G
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 H
334
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
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
B
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
C
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 lest for
D admission to super-specially courses, like DM/M.Ch. al All
India Level, and for certain other ancillary reliefs.
4. A counter affidavit has been filed by the State of Andhra
Pradesh contending, inter a/ia, that the claim of the petitioners
E
to appear in the entrance test conducted by the Stale of Andhra
Pradesh for admission into the medical super-specialty
courses is contrary to the scheme of the Presidential Order
and the 1979 circular. II is set forth in the counter affidavit that
the two categories of institutions, namely, State wide
educational Institutions and Non-State wide educational
F
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
G 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 Stale, the Andhra University area and Sri Venkateswara
H
OR. SANDEEP S/O SADASHIVRAO KANSURKAR v.
335
UNION OF INDIA[DIPAK MISRA, J.)
University area have come under the territory of State of Andhra A
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
B
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. · C
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 o
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 E
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
F
that according to Six Point Formula of the Constitution of India,
as amended by 32"d 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 G
education. To bolster tt;ie 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
H
336
SUPREME COURT REPORTS
[2015) 14 S.C.R.
A
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 ofTelangana has also filed a counter affidavit
B 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%
C -of the unreserved seats. ltis urged thatthe 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
D 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
E 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.
F
7. We have heard Ms. lndu 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 forthe State ofTelangana, Mr. Guntur
G Prabhakar, learned counsel for the State of Andhra Pradesh
and Mr. Gaurav Sharma, learned counsel for the Medical
Council of India.
H
8. It is submitted by Ms. lndu Malhotra, learned senior
counsel appearing for the petitioners that though Article 371-
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v.
337
UNION OF INDIA[DIPAK MISRA, J.]
D of the Constitution of India makes specialprovisions forthe A
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 Others1• It is
urged by her that equality before law and equal protection of B
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 C
to have any room in this category of admissions in view of the
pronouncements in Nikhil Himthani vs. State of
Uttarakhand2 and Vishal Goel vs. State of Karnataka3. It
is astutely canvassed by her that the principle pertaining to
domicile was laid down more than a decade back in Saurabh D
Chaudri vs. Union of /ndia4, 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
E
for the impleaded petitioners would submit that Rule 9 of the
Medical Council of India Postgraduate Medical Education
Regulations, 2000, as amended on 21'' December, 2010,
deals with the selection of post-graduate students by all the
medical educational institutions all over the country and these F
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 G
Andhra Pradesh, namely, Andhra, Rayalaseema and
1 (1999) 7 sec 120
2 (2013) rn sec 237
'(2014) 11sec456
• (2003l 11sec146
H
338
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
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
B
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
c demarcated as non-local quota or available forthe 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
o 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
E 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
F
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
G 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 forthe academic year 20152016 by Dr. N.T.R. University of Health Sciences, Andhra
Pradesh, especially on Clause 3.8 to 3.8.6. Learned senior
H
DR. SAN DEEP S/O SADASHIVRAO KANSURKAR v.
339
UNION OF INDIA[DIPAK MISRA, J.]
counsel has also drawn inspiration from Rule 2(2) of the Rules A
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 B
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 c
Pradesh and Telangana in the super-specialty post-graduate
medical (:ourses; 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 D
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
E
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 Admiss"ion to Super Specialties in the Medical Colleges
F
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 G
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.
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340
SUPREME COURT REPORTS
[2015] 14 S.C.R.
A
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
B
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
c 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 j1<1dgments,
but this Court has consistently held that as far as the State of
Andhra Pradesh is concerned, the super-specialty courses
o 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
E
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 0thers5, Reita Nirankari
vs. Union of lndia6, Dr. Dinesh Kumar vs. Motilal Nehru
Medical College7, C. Surekha vs. Union of India• and Dr.
F Fazal Ghafoor vs. Union of India and Others9• 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 ofTelangana.
13. Mr. Harin P. Raval, learned senior counsel, along with
G Mr. S. Udaya Kumar Sagar, learned counsel, appearing for
'(1984) 3 sec 654
6 (1984) 3 sec 706
1 (1986) 3 sec 727
• (1988) 4 sec 526
H • (1988) Supp sec 794
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v.
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UNION OF INDIA[DIPAK MISRA, J.]
the State of Telangana have adopted the submissions A
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 B
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 C
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 D
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 E
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.
(2)An order made under clause (1) may, in particular,-
F
(a) 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 G
be specified in the order the persons holding such posts
to the local cadres so organized;
(b) specify any part or parts of the State which shall be
regarded as the local area -
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(i) 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;
(ii) for direct recruitment to posts in any cadre under
· any local authority within the State; and
(iii) 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;
(c) specify the extent to which, the manner in which ar:id
the conditions subject to which, preference or reservation
shall be given or made -
(i) 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;
(ii) in the matter of admission to any such University
or other educational institution referred to in subclause (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 1 ''day of July, 197 4.
2. Interpretation:- (1) In this Order, unless the context
otherwise requires:-
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v.
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UNION OF INDIA[DIPAK MISRA, J.]
(a) "available seats" in relation to any course of study,
A
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
8
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 c
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 D
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
E
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).
F
(2) Any reference to any District in this Order shall be
construed as a reference to the area comprised in that
District on the 1" day of July, 197 4.
(3) The General clauses Act, 1897(10 of 1897) applies
· for the interpretation of this order as it applies for the G
interpretation of a Central Act.
3. Local area:- (1) The part of the State comprising the
district of Srikakulam, Visakhapatnam, West Godavari,
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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 Statewide 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 Statewide 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, Chitoorand 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 relevarit qualifying
examination; or.
DR. SANDEEP·S/O SADASHIVRAO KANSURKAR v.
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UNION OF INDIA[DIPAK MISRA, J.]
(b) Where during the whole of any part of the four A
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
B
immediately preceding the date of commencement of
the relevant qualifying examination in which he appeared
or as the case may'be first appeared.
(2)"1>.candidate for admission to any course of study who
is not regarded as a local candidate under subC
paragraph (1) in relation to any local area shall.
(a) if he has stugJed 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 0
appeared or, as the case may be, fir.st 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 put of the said period of seven years; or.
E
(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
F
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
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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.
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A
(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".]
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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 aepdemic 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
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v.
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UNION OF INDIA[DIPAK MISRA, J.]
area in respect of such University or other educational
A
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.
B
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 C
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
D
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.
E
Provided that there shall be at least one unreserved seat.
F
(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,
G
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.
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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 rnay, 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
DR. .SAN DEEP S/O SADASHIVRAO KANSURKAR v.
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UNION OF INDIA[DIPAK MISRA, J.]
notwithstanding anything contained in any statute A
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,
B
declares that nothing in the Order shall affect the operation
of any provisions made by the State.