THE HONBLE SRI JUSTICE A.RAJASHEKER REDDY WRIT PETITION No.15016 of 2014 02-07-2014 Dodda Praveen Reddy and another.... PETITIONERS The Government of Telangana, Rep. by its Secretary, Department of Education, Secretariat, Hyderabad and others....RESPONDENTS Counsel for the Petitioners: MR.S.Lakshma Reddy Counsel for the Respondents: The Government Pleader for First respondent Sri A.Prabhakar Rao, Standing Counsel for Respondents 2 & 3. HEAD NOTE: ?. Cases referred AIR1988Supreme Court 740 (2004) 8 SCC1(2005) 7 Supreme Court Cases 396 AIR1964Supreme Court 1172 (2009) 6 Supreme Court Cases 99) THE HONBLE SRI JUSTICE A.RAJASHEKER REDDY WRIT PETITION No.15016 OF2014ORDER
: This writ petition is filed seeking writ of mandamus declaring the petitioners as local candidates within local area of Osmania University as in-service candidates for the admission into P.G Medical Degree and Diploma Courses for the academic year 2014-15 and consequently to direct the respondents to consider and admit the petitioners into P.G Medical Degree and Diploma Courses for the academic year 2014-15 as Local in-service candidates on the basis of their merit rank in the Entrance Test conducted by the respondents.
2. Brief facts necessary for disposal of the writ petition are as follows: Both the petitioners are natives of Warangal District. The first petitioner studied from Nursery to VIII Class from 1980-81 to 1988-89 in Warangal District; from 1989-1990 to 1990-1991 ending with SCC in Hanamknda and from 1991- 1992 to 1992-1993 studied Intermediate in Arts & Science College, Warangal District. Later, he was admitted into M.B.B.S course in Kasturba Medical College, Mangalore affiliated to Manipal Academy of Higher Education (Deemed University) and appeared for final MBBS examination in the month of December 1991-January 2000 and completed his internship during the period from 01.03.2000 to 28.02.2001 as a resident internship of the Manipal University and that he has joined as Civil Assistant Surgeon on regular basis on 12.12.2008. Since then he is working as in-service candidate at Area Hospital, Mahabubabad, Warangal District. Similarly, the 2nd petitioner has studied Nursery to VI class from 1981-82 to 1988-89, VII Class to X Class at Warangal from 1989 to 1993 and Intermediate in Government Junior College, Hanamkonda from 1993 to 1995. Thereafter, he was also admitted to MBBS Course in Manipal Academy of Higher Education during the year 1995-1996 and completed Degree in the year 2001. Thereafter, he was appointed as Civil Assistant Surgeon on 17.07.2007 in Yellandu, Khammam District and at various hospitals as in-service candidate.
3. It is stated that the 3rd respondent has issued prospectus inviting applications for admission into P.G Medical and Diploma courses for the academic year 2014- 2015 and the cutoff date for completion of service/internship for eligibility to make application was 31.03.2014 and that both the petitioners have applied for the same as in-service candidates and have been allotted Hall Ticket Nos.531253 and 531243 respectively. It is stated that both the petitioners have qualified in the entrance examination and rank cards were issued mentioning as ET5219and ET3661respectively, showing both of them as non-local in ET Rank Card-Others (Non-local ) O.C in-service candidates. The 2nd petitioner made representation to the 2nd respondent on 10.05.2014 for correcting the mistake in treating them as a non-local candidates, but no action has been taken. Aggrieved by the action of the respondents, the present writ petition is filed.
4. After filing of the writ petition, in view of the effect of the Andhra Pradesh Re-Organization Act, 2014 which has come into effect from appointed day i.e., on 02.06.2014, the petitioners filed additional affidavit stating that the entrance notification for the academic year 2014-2015 was issued by the 3rd respondent under the united State of Andhra Pradesh on 17.01.2014 and that the entrance test and results were published while the state was united and the Presidential Order issued under the pre-amended Article 371-D of the Constitution of India was in force. It is stated that Article 371-D, which enables the President to issue Presidential Order in the matter of education in the then existing State of Andhra Pradesh, has been now substituted by a new provision as per Section 97 of the A.P. Re- organization Act, 2014 (for short the Act 6 of 2014). It is further stated that Section 101 of the Act 6 of 2014 empowered the State of A.P and State of Telangana to adopt or make modifications to the existing law i.e., before the appointed day within a period of two years whether by way of repeal or amendment. It is stated that Section 102 of the Act 6 of 2014 has also empowered any Court, Tribunal or Authority with power to enforce any law to construe such law in its application to the State of A.P and State of Telangana in such a manner, without affecting the substance as may be necessary or proper. It is stated that the definition and the rule defining the local candidate has become inappropriate and inapplicable and ceases to exist after 02.06.2014 by virtue Section 97 of the Act 6 of 2014 as Article 371-D stands substituted as repeal to that effect except to the extent saved by Section 95 of the Act 6 of 2014 i.e., in respect to quotas admissible under the pre-existing Article 371-D of the Constitution of India. Therefore, all the persons who have studied with 7 years residential or educational qualification before the qualifying examination to relevant qualifying examination or 4 years of study ending in the qualifying examination are eligible to be treated as local candidates for the purpose of admission into the P.G Medical and Diploma Courses. It is further stated that the only qualification of nativity followed by residence or number of years study in the local area becomes relevant to treat the petitioners as local candidates satisfying the requirements of nativity, education and residence, in view of the Act 6 of 2014, till the respective states adopt or amend the laws to their circumstances.
5. Counter has been filed by the 3rd respondent denying the allegations made in the affidavit filed in support of the writ petition and also the allegations in the additional affidavit filed by the petitioner and admitting about the issuance of prospectus for admission in to Post Graduate Medical Degree/Diploma Courses for the academic year 2014-2015 in accordance with the Presidential Order vide G.O.Ms.No.453, General Administration (SPF.B) Department, dated 03.07.1974, by virtue of which, 85% of seats are reserved for local candidates and the remaining 15% of seats are unreserved seats and the candidates who are defined as local candidates alone are eligible for selection and admission into 85% of local seats and also admitted about appearance of petitioners as in-service candidates for entrance examination.
6. The Government has issued G.O (P) No.646 Education (W.1) Department dated 10.07.1979, where under certain working guidelines were issued for implementation of the Presidential Order, which sets out a criteria of a local candidate. It is stated that a local candidate of one University area will be a non local to another University area as per the Presidential Order and that the petitioners admittedly studied their MBBS course outside the State of Andhra Pradesh. It is further stated that the service of the petitioners in the Osmania University area will not be counted for the purpose of determination as to whether they fall within the definition of local candidate or not. The petitioners will not fall within the definition of Rule 4.4.2 of the prospectus as they have not studied maximum period of 7 years preceding to the relevant qualifying examination and that their education prior to the Intermediate Examination will not be taken into consideration for determination as to whether they are local candidates or not and sought for dismissal of the writ petition.
7. Heard Sri S.Lakshma Reddy, learned counsel appearing for the petitioners, learned Government Pleader for Medical and Health appearing for 1st respondent, as well as Sri A.Prabhakar Rao, learned Standing Counsel appearing for the 2nd and 3rd respondents.
8. Sri S.Lakshma Reddy, learned counsel for the petitioners submits that the petitioners are to be treated as local candidates under Osmania University area as they have studied up to Intermediate at Warangal. He further submits that their case does not fall under Regulation 4.4.1 of the prospectus issued by the 3rd respondent for admission into Post Graduate Medical Degree/Diploma Courses for the academic year 2014-2015 and their case falls under Regulation 4.4.2. He further submits that under Regulation 4.4.1, if he/she studied in an Educational Institution or Educational Institutions in such local area for a period of not less than 4 consecutive academic years ending with the academic year in which he/she appeared or as the case may be first appeared in the relevant qualifying examination and whereas the words used under Rule 4.4.2 are that if he/she has studied in educational institutions in the State for a period of not less than 7 consecutive academic years ending with academic year in which he/she appeared or as the case may be first appeared for the relevant qualifying examination be regarded as local candidate. He contends that when once Article 371-D itself is substituted by Section 97 of the Act 6 of 2014, the Presidential Order issued under G.O.Ms.No.453, dated 03.07.1974 does not hold field and gets repealed. As such, the definition of local area and local candidate becomes inappropriate and inapplicable. He further states that unless the respective States i.e., State of Telangana and the State of Andhra Pradesh takes a decision under Section 101 of the Act 6 of 2014 for defining the local area and local candidate, the 3rd respondent University cannot proceed with the admission process. He further submits that in the absence of the decision of the States under Section 101 of the Act 6 of 2014, this Court has to interpret the relevant provisions and pass orders.
9. When this Court has brought to the notice of learned counsel for the petitioners about Section 24 of the General Clauses Act,1897, he argued that the Presidential Order is inconsistent with that of the Act 6 of 2014 since the definition of local area and local candidate gets obliterated and very purpose of enacting the Act 6 of 2014 dividing the United State of Andhra Pradesh gets defeated. He further contends that the definition of local area and local candidate is impliedly inconsistent with the provisions of the Act 6 of 2014 and the same cannot be enforced, until the President of India issues an order under Article 371-D of the Constitution of India. He further contends that as per Section 95 of the Act 6 of 2014, only quotas are saved, as such, the Presidential Order is inconsistent with the Act 6 of 2014. Therefore, the same cannot be followed by treating the criteria laid down for deciding the local area and local candidate under Presidential Order. In support of his contention, he relied on the judgments reported in Bhagat Ram Sharma v. Union of India and others , Zile Singh v. State of Haryana and others , Government of India and others v. Indian Tobacco Association , C.Rajagopalachari v. The Corporation of Madras and another and G.Sekar v. Geetha and others .
10. On the other hand, Sri A.Prabhakar Rao, learned Standing Counsel appearing for the respondents 2 and 3 submits that as per Section 97 of the Act 6 of 2014, in the place of the words the State of Andhra Pradesh, the words the State of Telangana and the State of Andhra Pradesh are only substituted in Article 371-D of the Constitution of India, as such, there is no substantial amendment to the Article 371-D of the Constitution of India. He further submits that the Presidential Order issued under Article 371-D of the Constitution of India holds field and the 3rd respondent University has issued prospectus in consonance with the same.
11. Learned Standing Counsel further submits that as per Section 95 of the Act 6 of 2014, admission process for P.G Medical Degree/Diploma Courses will be the same for the next ten years and there is nothing inconsistent in the Act 6 of 2014 with that of the Presidential Order issued under Article 371-D of the Constitution of India. He further contends, admittedly, the petitioners have studied M.B.B.S outside the State of Andhra Pradesh, which is relevant qualifying examination; therefore, they cannot be treated as local candidates, as per Regulations 4.4.1 and 4.4.2 of the prospectus issued for admission to P.G Medical Degree/Diploma Courses for the academic year 2014-2015. He further contends that the local area and local candidate are defined in the Presidential Order and same is being followed by the 3rd respondent-University.
12. Learned Government Pleader for Medical and Health made oral submissions followed by written submissions on behalf of the first respondent stating that as per Section 95 of the Act 6 of 2014, in order to ensure equal opportunities for quality higher education to all students in the successor States, the existing admission quotas and common admission process in all government or private, aided or unaided, institutions of higher, technical and medical education in so far as it is provided under Article 371-D of the Constitution of India, shall continue as such for a period of ten years. He also contends Parliament while enacting Act 6 of 2014 took cognizance of the existing procedure for admission into higher course of study and enacted Section 95 of the Act 6 of 2014 and same will be continued for a period of ten years, as per Article 371-D of the Constitution of India, in both the States i.e., in the State of Telangana and the State of Andhra Pradesh, after appointing day i.e., 02.06.2014. He further submits that the word existing common admission process shall continue means that the system, prior to the enactment of the Andhra Pradesh Reorganization Act, 2014, shall continue to operate for a period of ten years. Therefore, the Presidential order issued in the year 1974 under Article 371-D of the Constitution of India shall continue to operate for a period of ten years. In the Presidential Order, local area has been defined in paragraph 3 and local candidate has been defined under paragraph 4. He also contends that the Presidential Order is not inconsistent with the provisions of the Act 6 of 2014. Section 97 of the Act 6 of 2014 enables the President to pass orders in respect of both the States, but the President has not yet passed any order under Article 371-D of the Constitution of India. He further stated that the respective State Governments cannot take any decision in the matter, as it is Central subject. He submits that as the petitioners studied outside the State of Andhra Pradesh before bifurcation, they are not locals in all the local area of Osmania University and the case of the petitioners will be considered under 15% non-local quota as provided in the Presidential Order. I have gone through the pleadings of the parties carefully and considered respective contentions raised by counsel on either side.
13. For determining the issue in the writ petition, it is relevant to extract the definition of local candidate as stated in the Regulations issued by the 3rd respondent for the purpose of admission into Post Graduate Medical Degree/Diploma Courses for the academic year 2014-15. Regulation 4.4: Local Candidates:
4. 4.1 A candidate for admission shall be regarded as local candidate in relation to a local area. i) If he/she studied in an Educational Institution or Educational Institutions in such local area for a period of not less than 4 consecutive academic years ending with the academic year in which he/she appeared or as the case may be first appeared in relevant qualifying examination. or ii) Where during the whole or any part of the 4 consecutive academic years ending with the academic year in which he/she appeared or as the case may be fist appeared for the relevant qualifying examination, he/she has not studied in Educational Institutions, if he/she had resided in that local area for a period of not less than 4 years immediately preceding the date of commencement of the relevant qualifying examination, in which he/she appeared or as the case may be first appeared. 4.4.2: A candidate for admission to any course of study who is not regarded as a local candidate under sub-regulation (4.4.1) above in relation to any local area shall i) If he/she has studied in educational institutions in the State for a period of not less than 7 consecutive academic years ending with academic year in which he/she appeared or as the case may be first appeared for the relevant qualifying examination be regarded as local candidate in relation to; a) Such local area where he/she has studied for the maximum period out of the said period of 7 years. b) Where the period of his/her study in two or more local areas are equal, such local area where he/she has last studied in such equal periods or ii) If during the whole or any part of the seven consecutive academic years ending with academic year in which he/she appeared or as the case may be first appeared for relevant qualifying examination, he/she has not studied in the educational institution in any local area, but he/she has resided in the State during the whole of the said period of 7 years be regarded as a local candidate in relation to: a) Such local area where he/she has resided for the maximum period out of the said period of 7 years. (or) b) Where the period of his/her residence in two or more local areas are equal, such local area where he/she has resided last in such equal periods.
14. It is an admitted case of the petitioners that they does not fall within the definition of local candidate as defined under Regulation 4.4.1 of the above Regulations. Learned counsel for the petitioners contended that they will fall under Regulation 4.4.2. A plain reading of the 4.4.2 makes it clear that the petitioners will not also fall under the same because they have not studied maximum period of preceding 7 years to qualifying examination i.e., MBBS in the local area, as defined under 4.3.2 of the Regulations.
15. Regulation 4.3.2 of the prospectus for PG Medical Degree/Diploma Courses for the academic year 2014-2015 reads as follows:
4. 3. Local Area:
4. 3.1.. 4.3.2: The part of the State comprising the Districts of Adilabad, Hyderabad, Rangareddy, Karimnagar, Khammam, Mahaboobnagar, Medak, Nalgonda, Nizamabad and Warangal shall be regarded as local area for thepurposes of admission to the Osmania Univesity (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. In view of the above said regulation, the petitioners case does not fall under the definition of local area of Osmania University area. It is not the case of the petitioners that the definition given under Regulation 4.4. regarding local candidate is not inconsonance with the Presidential Order issued in the year 1974 under Article 371-D of the Constitution of India.
16. The other contention of the learned counsel for the petitioners is that the Presidential Order issued in the year 1974 under Article 371-D of the Constitution of India, no longer holds the field does not merit acceptance in view of Section 95 of the Act 6 of 2014. Section 95 of the Act 6 of 2014 reads as under:
95. In order to ensure equal opportunities for quality higher education to all students in the successor States, the existing admission quotas in all government or private, aided or unaided, institutions of higher, technical and medical education in so far as it is provided under Article 371 D of the Constitution, shall continue as such for a period of ten years during which the existing common admission process shall continue. It clearly states that the existing common admission process under Article 371-D of Constitution of India will be continued for a period of ten years. As such, Act 6 of 2014 is not in any way inconsistent with the Presidential Order under Article 371-D(1) of the Constitution of India.
17. Section 24 of the General Clauses Act, 1897 reads as follows:
24. Constitution of orders, etc., issued under enactments repealed and re-enacted:- Where any [Central Act]. or Regulation is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any [appointment, notification,]. order, scheme, rule, form or bye-law, 56 [made or]. issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provision re-enacted, continue in force, and be deemed to have been [made or]. issued under the provisions so re-enacted, unless and until it is superseded by any [appointment, notification,]. order, scheme, rule, former bye-law [made or]. issued under the provisions so re-enacted [and when any [Central Act]. or Regulation, which, by a notification under Section 5 or 5-A or the Scheduled Districts Act, 1874, (14 of 1874) or any like law, has been extended to any local area, has by a subsequent notification, been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section].. Even according to Section 24 of the General Clauses Act, 1897, Presidential Order does not cease to exist since President has not issued any orders under newly substituted Article 371-D of Constitution of India.
18. I have gone through the judgments relied on by the learned counsel for the petitioners, but they have no relevance to the facts of the case, since they have been rendered in different context. In fact, Section 95 of the Act 6 of 2014 makes it clear that common admission process under Article 371-D shall continue for a period of ten years.
19. The another contention of the learned counsel for the petitioners is also not relevant with regard to Section 101 and Section 102 of the Act 6 of 2014.
20. Though the learned counsel for the petitioners argued that the definitions of local area and local candidates become inappropriate by virtue of the Act 6 of 2014, the same is not substantiated. In view of above facts and circumstances, I do not see any merit in the writ petition and accordingly, the same is dismissed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition, shall stand closed. ______________________________ A.RAJASHEKER REDDY, J0207.2014