S.B. Sinha, C. J.
1. These Writ Appeals are directed against the common order of the learned single Judge dated 16-7-2001 in W. P. No. 24204 of 2000 and batch whereby and whereunder the writ petitions filed by some of the students who had appeared for EAMCET-2000 [medical) seeking the following reliefs.
(i) declare the action of the respondents in granting admission in favour of the candidates who have secured lesser rank than the writ petitioners into the 1st year MBBS course under the unreserved segment of seats as bad in law and consequently direct the respondents to grant admission to the writ petitioner into the 1st year MBBS course:
(ii) declare the action of the respondents herein in admitting 37 reserved category candidates under payment category seats in private medical colleges and subsequently shifting them to Govt. Medical Colleges and to free seats in Private medical colleges byconsidering their candidature under reserved quota and consequently filling up the 37 resultant vacancies under payment category with reserved category candidates as arbitrary and violative of Article 14 of the Constitution of India; and
(iii) direct the respondents to fill up 37 resultant vacancies in payment category in open competition with the candidates who have secured higher ranks from among the open category and strictly in accordance with the merit.
were dismissed.
2. The present appeals arose out of W. P. Nos. 1111 of 2001, 25974 of 2000, 889 of 2001. 1109 of 2001, 26672 of 2000 and 4138 of 2001 respectively.
3. Though the facts involved in these appeals were simple, the controversy involved, however, is of complex in nature. We may briefly note the facts as under :
The appellants-petitioners herein had appeared for the Engineering Agricultural and Medical Common Entrance Test-2000 (EAMCET-2000) aspiring for admission into MBBS course for the academic year 2000-2001 and secured the ranks as detailed below :
W.A. NoName of theRank
1222Bathina Rajya Shilpa11051226Jilla Swapna1112 D. Madhavi Latha11431228Abhinga Chowdary10331238Mandava Silpa10711249V. Deepthi1118 B. Sowjanya1214 K. Uma1235 M. Slvarama Krishna1266 N. Rajasekhar12891297K. Srihari0952
The first phase of counselling for admission into the I year course conducted by the NTR University of Health Sciences. Vijayawada commenced on 8-12-2000. Approximately 1004 seats were meant for open category in the entire State. The last candidate who was given admission into the course under the said category secured rank of 1087th. The grievance of the appellantsis that the candidates belonging to reserved categories who have secured higher ranks were initially allotted against open category against payment seats in private medical colleges against their wish, but, subsequently they were permitted to slide down to colleges of their choice under reserved quota and were even permitted to convert their seats to free seats. In that process, 37 candidates belonging to reserved category who were initially admitted against payments seats in private medical colleges were shifted to Government Colleges or to free seats in private medical colleges under the reserved quota. However, the resultant vacancies in the open category caused due to the vacation of the seats by the reserved category candidates were again allotted to reserved category B. C. candidates instead of open competition candidates.
4. According to the appellants, the payment seats are a separate block and as such a reserved category candidate who secured higher rank cannot be forced to take payment seat against his wish and later be permitted to slide down to free seat in Government or private medical colleges. Such practice is contrary to Sub-rules (5), (6), (10) of Rule 7 of the Andhra Pradesh Professional Educational Institutions (Regulation of Admission into Under-graduate Professional Courses through Common Entrance Test) Rules, 1993 (EAMSET Rules for short). It was stated that once the reserved category candidates who opted for open category seats in payment category under 15% unreserved non-local category were permitted to slide down to free seats under reserved quota of 85%, the resultant seats fell vacant by their sliding down cannot be filled up again by the reserved category candidates and such seats should be filled up only by next meritorious open category candidates.
5. Out of the total 26.7 seats which are liable to be filled up under the unreserved segment at 15% as per Article 371-D of the Constitution of India in all the medical colleges, 137 seats of them will have to be filled up with open category candidates while the remaining 130 seats are liable to be filled up by candidates belonging to the reserved categories. 137 seats, therefore, are liable to be filled up under the unreserved category strictly by the meritorious candidates and the remaining 130 seats only are liable to be filled up with the reserved category candidates. It was also stated that if a reserved community candidate is able to pay the amount of Rs. 75,000/- under payment category, then he would not fall under economically backward and reserved category.
6. In W.A. No. 1228 of 2001, it is stated that the appellant had studied from Kindergarten to 10th Class in Guntur and she studied Intermediate in the State of Gujarath as her mother who was working in State Bank of India was transferred to the State of Gujarath and she is entitled to be treated as a local candidate of Andhra University area, but the authorities have treated her as non-local candidate. Therefore, she has also sought for a direction to the respondent to treat her as a local candidate of Andhra University area.
7. Therefore, the crux of the matter revolves round the allotment of 37 reserved category B.C. candidates into the seats vacated by the reserved category B.C. candidates who had been initially allotted payment seats against the open category under the unreserved quota of 15% on the basis of their merit in open category.
8. The case of the respondents is that they have merely followed the judgment of the Division Bench of this Court in W.A. No, 795 of 1999 and batch dated 23-2-2000 reported in NTR University of Health Sciences, Vijayawada v. Raghavendra, : 2000(2)ALD532 wherein this Court followed the judgment of the Supreme Court in Ritesh R. Shah v. Dr. Y. L. Yamul, : [1996]2SCR695 . The procedure prescribed by the Apex Court as well as this Court was incorporated in the regulations issued by the 2nd respondent-University at the time of inviting applications.
9. By Constitution (Thirty Second Amendment) Act. 1973, Article 371-D, a special provision with respect to the State of Andhra Pradesh has been inserted in the Constitution of India. Sub-clauses (1), (2) and (10) are relevant for the purpose. They read thus :
371-D. Special provisions with respect to the State of Andhra Pradesh:-- (1) The President may by order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the State as a whole, for equitable opportunties and facilities for the people belonging to different parts of the State, in the matter of publicemployment and in the matter of education, and different provisions may be made for various parts of the State:
(2) An order made under Clause (1) may, in particular:--
(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 be specified in the order the persons holding such posts to the local cadres so organised.
(b) specify any part or parts of the State which shall be regarded as the local area--
(i) for direct recruitment to posts in any local cadre (whether organised 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 purpose 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 and the conditions subject to which, preference of 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 of the order;
(ii) 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 respective such cadre. University or other educational institution, as the case may be.
(10) The provisions to this article and of any order made by the President thereunder shall have effect notwithstanding any in any other provision of this Constitution or in any other law for the time being in force.
10. It is not in dispute that the President of India pursuant to or in furtherance of the powers conferred by Clauses (1) and (2) of Article 371-D of the Constitution of India, made the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 (Presidential Order) w.e.f. 1-7-1974 providing for equitable opportunities and facilities for the people belonging to different parts of the State, in the matter of admissions to educational institutions which came into force on the 1st day of July. 1974. The said Order provides that the order applies to admissions to every course of study provided by the Universities in the State and all other Educational Institutions which are subject to the control of the State Government, other than Primary and Secondary Schools. Correspondence Courses and Part-time courses of study for the benefit of employed persons. As per para 3, the State has been divided into three local areas, namely, (1) the Andhra University local area, (2) The Osmania University local area and (3) Sri Venkateswara University area for the purpose of admissions into the educational institutions situated in the respective local areas of each of the aforesaid Universities. Para 4 defines a local candidate in relation to local area. As per para 6 of the Order, 85% of the available seats in every course of study provided by state-wide Universities and State-wide educational institutions shall be reserved in favour of, and allocated among the local candidates in relation to the local areas in respect of the Andhra Universty, the Osmania University and Sri Venkateswara University, in the ratio of 42 : 36 : 22 (being the approximate ratio of population of these areas). The balance of 15% of the available seats in both State-wide and non-State wide institutions are left unreserved. As per Para 9 of the Presidential Order, the Order has overriding effect over any statute, ordinance, rule, regulation or other order in respect of admissions in force. In pursuance of the said order comprehensive instructions have been issued in G.O.P. No. 646 dated 10-7-1979.
11. The State enacted A. P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 ('the Act' for brevity) in order to prohibit the collection of capitation fee in the State of Andhra Pradesh and to avoid frustration among the meritorious and indigent students and maintain excellence in the standards of education. As per Section 2(c). 'Educational Institution' means a college, a school imparting education up to and inclusive of tenth class or other institution by whatever name called, whether managed by Government, private body, local authority or University and carrying of the activity of imparting education therein, whether technical or otherwise, and includes a Polytechnic, Industrial Training Institute and a Teachers' Training Institute, but does not include a tutorial institution. Section 3 provides for regulation of admission into Educational institutions. Section 3(1) provides that admissions into Medical and Engineering Colleges are required to be made either on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test conducted by such authority and in such manner as may be prescribed. Sub-section (2) of Section 3 provides that admission under Sub-section (1) shall be subject to such rules as may be made by the Government in regard to reservation of seats to the members belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and other categories of students as may be notified by the Government in that behalf as provided in Presidential Order. Section 15 of the Act provides for the rule making in terms where of the Government may make rules for carrying out all or any of the purposes of the said Act.
12. In Unnikrishnan v. State of Andhra Pradesh. : [1993]1SCR594 , Supreme Court evolved a scheme in relation to regulation of admission of students into various educational institutions taking note of the fact that private educational institutions. In the present day context, are in necessity, as the Government is in no position to meet the demand particularly in the medical and technical educational sector which calls for substantial outlays. The State has also monopoly therein and the private educational institutions have a role to play in the matter. By reason of the judgment of the Apex Court in Unnikrishan's case, a student can have a chance of opting either for a free seat or for a payment seat in a private educational institution.
13. By reason of G.O. Ms. No. 184 Education (E.C. 2) dated 20-8-1993 the State in exercise of the powers conferred by Section 3 read with Section 15 of the Capitation Fee Act, framed EAMCET Rules. 'Common Entrance Test' has been defined in Rule 2(d) tomean the examination conducted for assign- ing merit ranking to students, which will be the basis for admission of the student into the first year of various Under-Graduate Courses in various Professional Educational Institutions in the State. Section 2(h) defines 'free seats' to mean 50% seats in Private Professional Institutions in respect of which the fee payable shall be the same as the fee payable in the Government/University Engineering Colleges, Medical/Dental Colleges of the respective University area of the State of Andhra Pradesh, Local area' as per Section 2(k) is defined to mean the territorial jurisdiction prescribed for identifying the local candidates. Section 2(1) defines 'Local candidates' to mean the candidates in relation to the local area as specified in Rule 8. 'Non-Resident Indians (NRIS)' as per Section 2(m) is to mean Non-Resident Indians as defined by Reserve Bank of India. Section 2(n) defines 'Payment seats' to mean the other 50% seats in Private Professional Institutions excluding the 'Free Seats' defined in Clause (h), Clause (O) of Section 2 defines 'Qualified Candidate' to mean that candidate who has appeared for the Common Entrance Test and has been assigned ranking in the Common Merit List. Section Clause (p) defines 'Qualifying examination' to mean the examination of the minimum qualification prescribed appearance/passing of which entitled one to see admission into the relevant professional course.
13. Rule 3 provides for method of admission, in terms whereof general guidelines for the admission of the students into various 1st year undergraduate professional educational instructions have been laid down. Clause (a) of sub-rule (1) provides that the Admissions shall be made in the order of merit on the basis of the ranking assigned to the students in the Common Entrance Test Called the 'Engineering, Agricultural Sciences and Medical Common Entrance Test (EAMCET) conducted for the purpose. In terms of sub-rule (2) of Rule 3, the Principal of Private Professional Institutions shall admit candidates as allotted by the 'Convenor of Committee for admissions' as defined in Rule 2(gg) in terms of Rule 7. Sub-rule prohibits admission into private educational institutions excepting the limit prescribed by the Government. Rule 4 provides for eligibility criteria for admission. Rule 5 provides for the Common Entrance Test tobe conducted by the University selected by the A.P. State Council of Higher Education. For conducting such tests, an advertisement is required to be issued in the popular dally newspapers. The Chairman is required to conduct the entrance test within fifteen days from the last date of Intermediate examination by announcing the dates and centres therefor. The said rule provides for the subjects in which examinations are to be taken and the purpose therefor. It also provides the details of the courses, the University offering and the subject to be chosen for appearing the test seeking admission into the courses.
14. The method and manner of preparation of merit list and assigning of rank is provided for in Rule 6. The Common Entrance Test Committee has to prepare State wide Common Merit List. Reglonwise Common Merit Lists, Minority Community Merit Lists and castewise common Merit Lists keeping in view the guidelines contained in Rule 6. Rule 7 details with procedure for admission into Government as well as Private Medical colleges. Sub-rules (5), (6), (7) and (10) of Rule 7 are relevant and they read as under :
(5) The seats in all the Private Professional Institutions shall be pooled up Course wise and distributed among the three local areas of the State specified in Sub-rule (1) of Rule 8 namely, Andhra University Area (Andhra), Osmanla University Area (Telangana) and Sri Venkateswara University Area (Rayalaseema) in the ratio of 42 36; 22 respectively and 50% of the pooled up seats shall be 'Free seats' and the balance of 50% of the seats shall be 'Payment Seats '. 10% 'Payment Seats' (i.e. 5% of total intake) in each branch shall be reserved for Non-resident Indians (NRIs),
(6) Candidates who have secured higher ranks at the Entrance Test will be called for an interview in the Order of merit for selection and allotment of Course/Branches/ Institutions. For the convenience of the candidates, representatives of all University Professional Colleges, Regional Engineering College, Warangal and Private Professional Colleges, in the State shall sit at a common table. As and when each candidate gets his turn for interview in the order of merit, choice of Institutions and Branch (Course of study) will be given to him, dependingupon availability at the point of time with due regard to the eligibility of the candidate for a seat in a particular local area for a particular reserved category.
(7) The selection of candidates and allotment of Courses/Institutions in respect of University Professional Colleges, Regional Engineering Colleges and Private Professional Colleges shall also be solely on the basis of merit as adjudged by the rank obtained in the Entrance Test subject to the condition that the candidate should have passed the qualifying examination with the minimum prescribed for the Entrance Test. However, mere appearance at the Entrance Test and obtaining high rank in the merit lists does not entitle a candidate to be considered for admission automatically into any course/Branch/Institution unless he also satisfies the Rules and Regulations of Admission prescribed by the concerned University/Government including marks to be obtained in the qualifying examination.
(8) The Convenor of Committee for admissions shall select and allot the candidates for admission into various courses in University Professional Colleges, Regional Engineering Colleges and 'Free Seats' in Private Professional Colleges simultaneously on the basis of the ranking assigned to them in the Entrance Test. It shall be open to a higher ranking candidate to opt for 'Payment seat'.
(10) The Competent Authority or Convenor of Committee for Admissions shall give at least ten days time to all the candidates after the 'Free seats' in Private Professional Institutions are filled up to opt to be admitted against the 'Payment seats' so that the candidate shall deposit the fees in the Bank for the academic year in favour of the competent authority who shall transfer the same in favour of the appropriate college.
15. Rule 8 provides for reservation. Sub-rule (1) provides for Region wise reservation of seats. Sub-rule (1) reads as follows :
Rules of reservations for admission : They shall apply to all institutions including Private Professional Institutions both for 'Free seats' and 'Payment seats' subject to the modification mentioned in the Sub-rule (5) of Rule 7 in respect of Non -Resident Indians (NRIs).
(1) Region wise reservation of seats :
(a) Admission to 85% of the seats in each course, excluding the seats which are exempted from the need of Common Entrance Test, shall be reserved for the local candidates and 15% of the seats shall be left over for Open competition as specified in the A.P. Educational Institutions (Regulations and Admission ) Order , 1974 as amended in G.O.P. No. 646. Education (W) Department dated 10-7-1979.
(b) in respect of State-wide institutions and State-wide Universities admission into 85% of seats, excluding the seats which are exempted from the need of Common Entrance Test, in each course, shall be reserved for the candidates belonging to the three local areas in the State specified in this sub-rule namely, Andhra University Area (Andhra). Osmania University Area (Telangana) and Sri Venkateswara University Area (Rayalaseema) in the ratio 42 : 36 : 22 respectively and the balance of 15% seats shall be left for open Competition.
(c) The seats in all the Private Professional Colleges shall be pooled up course wise and distributed among the three regions of the State namely, Andhra University area (Andhra), Osmania University area (Telangana) and Sri Venkateswara University area (Rayalaseema ) in the ratio of 42 : 36 : 22 respectively as provided under Sub-rule (5) of Rule 7.
16. Sub-rule (2) of Rule 8 provides for reservation of seats for SC/ST/BC communities. Clause (a) thereof provides that 15% and 6% of seats and in each course in each institution shall be reserved for the candidates belonging to the Scheduled Castes and Scheduled Tribes respectively. Clause (b) provides that 25% seats in each course in each institution shall be reserved for the candidates belonging to the Backward Classes and shall be allocated among the groups A , B, C and D at 7% , 10%, 1% and 7% respectively. Sub-rule (3) of Rule 8 provides for reservation of seats for women and sub-rule (4) provides for reservation to other categories such as handicapped, National Cadet Corps . Children of Ex-Servicemen etc.
17. Before proceeding further, it may be noted that challenging the procedure adopted by the respondents for the academic year 1999-2000 in the allotment of candidates belonging to Backward Classes a writ petition was filed and this Court directed to make the admissions strictly in accordancewith the principles laid down by the Supreme Court in Ritesh Shah's case : [1996]2SCR695 (supra) and the reserved category candidates who are entitled by virtue of their ranking for admission under OC category cannot be admitted against seats reserved for reserved category candidates and they shall be allotted to college of their choice under OC category.
18. Pursuant to the judgment of this Court, the State issued Schedule and Regulations for admission to MBBS and Dental Colleges for the Academic year 2000-01 (hereinafter referred to as 'Regulations'). Regulation IX deals with drawing up of merit lists and Regulation X deals with process of selection . Regulation 10(5) reads as follows :
The counselling shall be in three phases :
(i) in the first phase, OC students will be filled up.
(ii) in the second phase, the reserved category candidates selected under OC category shall be allotted to the Colleges of their preference depending upon availability of seats in the respective category and their eligibility.
(iii) The third phase is only for reserved category candidates. In this phase selection and allotment of remaining seats reserved for the reserved category candidates and those vacated during the second phase of counselling shall be made.
19. It appears that 37 reserved category BC candidates initially opted against 50% payment seats quota in open category earmarked under 15% unreserved non local category on the basis of their merit in open category and accordingly they were admitted into various private colleges. Subsequently , these BC candidates, were re-allotted as per their choice of college under the reserved BC category and it is alleged that they in fact secured free seats in Govt. Colleges and Private colleges. Consequently, the seats vacated by them were allotted to BC candidates so as to maintain the percentage of reservation provided for the BC candidates as per the Rules and Regulations. This, according to the petitioners is not correct and such seats vacated by the BC category candidates shall be treated as open category seats only.
20. For the purpose of quota the reserved candidates who successfully compete with the open category candidates althoughbe treated as open category candidates, in view of the decision of the Apex Court in Ritesh Shah's case, the rules of sliding down has become permissible. In this case, we are not concerned with the extent to which the said decision can be applied by the State.
21. In Ritesh Shah's case : [1996]2SCR695 it was held :
It is while considering the candidates at Regional level, coption is asked for from the candidates individually of their choice and then allotment is made. Therefore, at that stage if a candidate belonging to the reserved category is considered by virtue of his merit and is admitted, then it is just possible he may not be admitted to any Government colleges and would be admitted into a private college whereas as against the 50% seats reserved for reserved category, persons down below the list belonging to the reserved category, will be admitted and undoubtedly this will cause undue hardship to the meritorious candidates amongst the reserved category.
There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit the such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the Constitutional mandate enshrined in Article 16.
22. Having regard to the decisions in Indra Sawhney v. Union of India (AIR 1993 Cal 477) (supra), R.K. Sabharwal v. State of Punjab : [1995]2SCR35 . Union of India v. Virpal Singh Chauhan : AIR1996SC448 , Ajay Kumar Singh v. State of Bihar : [1994]3SCR57 , the Supreme Court held :..... a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates . The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they will be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate enittled to admission on the basis of his merit will have the option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as a open category candidate and not as a reserved candidate.
23. In Indra Sawhney v. Union of India, : AIR1993SC477 , the Supreme Court categorically approved the principle of equality. Any reasonable, rational and unarbitrary action to uplift the downtrodden can be justified under Articles 15(1), 15(4), 16(1) and 16(4) of the Constitution. However, a conspectus of the decisions of the Supreme Court in Indra Sawhney (para 91-A), Sabarwal (para 4), Ajay Kumar Singh (para 4) and Ritesh R. Shah (Para 17) (supra) shows that any reservation policy and any admission programme should not work or result in disadvantage to the candidates belonging to reserved categories.
24. In Ritesh Shah : [1996]2SCR695 , it was noticed that when the course is offered in multi institutions and multi area situation, the choice of the College assumes importance especially when the course is offered both in Government Colleges and Private Colleges in respect of 'free seats' and 'payment seats'. By reason of Unni Kishnan's case, as noticed supra, private colleges are permitted to charge fees higher than the fees charged in similar Governmental institutions to make the private colleges viable. Therefore, if a less meritorious candidate holding the reserved category, say Backward Class, is given admission in a Government College (free seat) and if a more meritorious candidate belonging to Backward Class, is given admission in private college (Payment seat), the same would certainly be disadvantageous to more meritorious candidate. It is obvious that even among the candidates belonging to reserved categories, one has to consider the inter semerit. For example, if a less meritorious reserved candidate is given admission in a medical college in preference to more meritorious reserved candidate, the same would certainly violate Articles 14, 15(1) and 29(2) of the Constitution.
25. If a payment seat is vacated by a more meritorious backward class candidate in preference to a free seat by reason of sliding down, the same ought to go to a less meritorious backward class candidate as otherwise the percentage of reservation in accordance with Rule 8 of the EAMCET Rules is not possible, in which event, there will be gross violation of the rule of reservation. Therefore, the Government issued instructions to follow the principle laid down in Ritesh Shah.
26. All the Rules and Regulations should be in accordance with the law laid down by the Supreme Court. Any such scheme framed would render all the rules constitutionally valid. When a particular admission programme for reserved candidates has been interpreted by the Supreme Court in particular manner, the same shall be extended at least to that extent but certainly not more than that. Firstly, the case does not involve extension of the principle in Ritesh Shah. All things are done simultaneously and, therefore, there may not be any scope to invalidate such admissions on the ground of violation of rules.
27. Therefore, we hold that the rule of reservation for the candidates belonging to re served cat egroeis including Backward Classes as contemplated under Rule 8 of the EAMCET Rules should be applied duly following the rule of sliding down to avoid any disadvantage to more meritorious reserved candidates. This principle applies both in respect of 85% of the seats reserved for local candidates and in respect of 15% of the seats which remain unreserved in relation to local area as well as in respect of statutory and non-statutory reserved categories. Needless to mention that the Presidential Order applies to all educational Institutions and to all the payment seats as well as free seats and by reason of para 10 of the Presidential Order, rule of reservation is equally applicable to all payment seats as well as free seats. We should not also lose sight of the fact that, by virtue of para 9 of the Presidential Order, the Presidental Order has overriding effect and if the rule of reservation is not applied as interpreted by the Supreme Court in Ritesh Shah, the same would violate the Presidential Order.
28. A reserved category student who can pay Rs. 75,000/- per year should fall within the category of creamy layer and thus he shall be treated as outside the purview of reservation is the contention of Mr. Ram Mohan Rao. According to Mr. Ram Mohan Rao, a candidate who was allotted payment seat will have to spend about Rs. Seven lakhs for completion of the Course at the rate of Rs. 75,000/- per year for a period of five and half years in addition other usual expenses. The learned single Judge has held that for the aforementioned purpose one may take educational loan from the banks and financial Institutions. However, it appears that a student has to pay Rs. 75,000/-per year for a period of four and half years which comes to Rs. 75,000/-, So far as the last year is concerned, he will get stipend and he is not required to pay any fees. Economic criteria for the purpose of finding out the creamy layer or in other words the means test cannot be a question, which would fall for decision of this Court in this matter. In Indra Sawhney' case : AIR1993SC477 it has categorically been held :
Means test in this discussion imposition of an income limit, for the purpose of excluding persons (from the backward class) whose income is above the said limit. This submission is very often referred to as the 'creamy layer' argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they constitute the forward section of that particular backward class as forward as any other forward class member and that they are lapping up all the benefits of reservations meant for that class. These persons are by no means backward and with them a class cannot be treated as backward. It is pointed out that since Jayasree : [1977]1SCR194 almost every decision has accepted the validity of this submission.
29. It was held that advanced classes among Backward Classes should be excluded for conferring the benefits of affirmative action. The Apex Court held that a rational method should be adopted for weeding out those forward backward class members. For doing so, the Court is not properly equipped for it involves socio economic analysis and study of the issue. Therefore, the Apex Court held :
Within four months from today the @ page SC589 Government of India shall specify the bases, applying the relevant and requisite socio-economic criteria to exclude socially advanced persons/sections ('creamy layer) from 'Other Backward Classes. The implementation of the impugned O.M. dated 13th Sept. 1990 shall be subject to exclusion of such socially advanced persons (creamy layer). This direction shall not however apply to States where the reservations in favour of backward classes are already in operation. They can continue to operate them. Such States shall however evolve the said criteria within six months from today and apply the same to exclude the socially advanced persons/sections from the designated 'Other Backward Classes', (see para 123-B).
30. Thus, there cannot be any doubt whatsoever that it is for the State to identify the creamy layer and not the Court. Several complex questions arise for consideration. Even in Indra Sawhney v. Union of India : AIR2000SC498 whereupon Mr. Ram Mohan Rao placed strong reliance, it was held :
So far as the directions in Indra Sawhney are concerned, they are that the Central and State Governments are obliged to create separate bodies, which will identify the creamy layer in the backward classes within a time frame ....... As the 'creamy layer'
in the backward class is to be treated 'on a par' with the forward classes and is not entitled to benefits of reservation, it is obvious that if the 'creamy layer' is not excluded, there will be discrimination and violation of Articles 14 and 16(1) inasmuch as equal (forwards and creamy layer of backward classes) cannot be treated unequally. Again, non exclusion of creamy layer will also be violative of Articles 14, 16(1) of the Constitution of India since unequals (the creamy layer) cannot be treated as equals, that is to say, equal to the rest of the backward class.
31. The basis for exclusion thus of persons of the benefits of reservations should not merely be economic unless the economic advancement is so high with the social advancement. Financial capacity to pay fees prescribed for the payment seats thus cannot be the sole basis to determine whether or not the backward class would come within the creamy layer. However, we may notice that when we asked as to at what stage the process of identification of the creamy layer in the State was, the learned Advocate General has produced before us a copy of the letter addressed to him by the concerned secretary to the effect that information from other states had been sought for. It is unfortunate that despite the decision of the Apex Court in Indra Sawhney I made in the year 1993, no fruitful attempt has been made so far. The exercise of identification of creamy layer is only in process. We cannot appreciate the inaction on the part of the State in this regard.
32. We are, however, of the view that even if there was identification of creamy layer it cannot be said that there cannot be any reservation in favour of Backward Classes for payment seats. If such seats are excluded from the purview of reservation, then it will be violative of the policy of reservation meant for the backward classes as by exclusion of payment seats from the purview of reservation, it would not be possible to maintain the percentage of reservation meant for the backward classes. By identification of creamy layer, the bottom of the backward classes who are truly economically weak and socially backward would reap the benefits meant for the backward classes and serve the purpose and constitutional object. We, therefore, reject the contention of the learned counsel for the petitioners that no reservation can be applied for payment seats.
33. The next aspect of the matter is filling up to left over NRI seats. Sub-rule (9) of Rule 7 of the Rules says that the management shall intimate the Competent Authority or Authority or Officer nominated by Competent Authority about the left over seats reserved for Non-Resident Indians, if any, well in advance before the commencement of admissions to be made for 'payment seats' by competent authority to fill up such left over NRI seats treating them as 'payment seats'. Mr. Rama Mohan Rao learned counsel appearing for the appellants contended that for the academic year 2000-2001 there were 39 NRI seats in private Medical Colleges as well as in Government /University Medical Colleges and since the NRI seats are earmarked from the total intake of the Government/University Colleges, consequently the number, of free seats for the meritorious students was reduced. Such left over seats should be filled up as free seats or payment seats. Section 4-A of the Act provides special provision in respect of Non-Resident Indians students. Sub-section (1) thereof empowers the Government to admit students belonging to foreign countries and NRI students into a medical college established for the purpose in accordance with the rules as may be prescribed on payment of such sum as may be notified by the Government in this behalf. The learned single Judge directed that the left over NRI seats should be filled up from out of the wait list prepared by the competent authority after giving due notification in the newspapers and such candidates admitted in the process are entitled to condonation of shortage of attendance as per rules.
33. Section 4-A of the Act is a special provision in respect of Non Resident Indian Students, which was Inserted by way of amendment in 1984. As per this provisions, it shall be lawful for the Government to admit students belonging to foreign countries and Non-resident Indian students into medical colleges on payment of such amount as may be prescribed. We have been informed that at present such seat is being given to a candidate on payment of $15,000 per annum as fee. This amount goes into fund called. 'Medical Education Fund' and shall be utilised for the improvement of the college where foreign students/NRI students are admitted and also for the development of the medical education facilities. We may mention that the admission programme where the seats in educational Institutions are offered on payment basis has received the approval of the Supreme Court in Unni Krishnan, : [1993]1SCR594 (supra). In Unni Krishnan, it was held :
We must clarify that changing the permitted fees by the private educational Institutions which is bound to be higher than the fees charged in similar governmental Institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four Seats enactments prohibiting capitation fees. All of them recognise the necessity of charging higher fees by private educational institutions . Theyseek to regulate the fees that can be charged by them which may be called permitted fees and to bar them from collecting anything other than the permitted fees, which is what 'capitation fees' means.
35. Importance of medical education need not be emphasised. Health being a basic human right, it is the duty of the State to endeavour to improve the health of the people. Without adequate number of doctors, the constitutional mandate that every citizen should be provided with health facilities would be a mirage. We may notice that in 1990-91 the total number of doctors in the country is not commensurate with the growing population of the ration. The statistics shows that for every ten thousand population only one doctor is available. It is also well known that creation of medical education Infrastructure involves huge Investment and for one seat the Government would be spending anywhere between Rs. 4 to 6 lakhs. When Section 4A was enacted, no additional seats were created in Government as well as private medical colleges. As few seats were earmarked and reserved in Government as well as Private Medical Colleges for foreign students/ NRIs. In Kakinada, Warangal and Kurnol Medical Colleges, which are run by the Government, seats were also reserved for Non resident Indians. Whatever may be the reasons 21 or 39 seats were not filled up. Indeed Rule 7(9) is to the effect that the management of the private medical colleges have to Intimate the Competent Authority about the left over seats reserved for NRIs so that the said authority can treat those NRI seats as 'payment seats' and follow the procedure for filling up the same in accordance with Rule 7(8). This was not done even by the Government Medical Colleges by reason of which 21 seats remained unfilled. We are not able to comprehend as to why these seats were not filled up. If, there was any impediment like Court orders, nothing prevented the Government to take appropriate steps to fill up the seats. If It is a private medical college the rule itself clearly says that those seats have to be filled up treating them as 'payment seats'. The mere absence of any rule in relation to NRI seats in Government Colleges, in our considered opinion, does not mean that the Government can leave the seats vacant.
36. The Government ought to have evolved a method so that the unfilled NRI seats could be filled up by meritoriouscandidates because rule of reservation does not apply to NRI seats as per Rule 8 read with Rule 7(5) of the EAMCET Rules. Even now, we hope and trust that the Government would evolve a scheme to fill up the unfilled NRI seats even in Government Colleges. A question would arise whether Government and admit students on payment basis. As majority of the seats are being filled up as free seats based on merit, a negligent per- centage of seats reserved for foreign students and NRI students, can be filled up treating them as payment seats by charging a sum equivalent to the sum that is required to be paid by a foreign student/NRI student ($ 15,000). We do not see any constitutional embargo for adopting such method. In Unni Krishnan's case : [1993]1SCR594 one of the contentions raised was that even in the field of education market forces' (the law of demand and supply) must be allowed to play as there was always more number of persons seeking admission to fewer number of seats. The Supreme Court noticed that the funds allocated to educational sector are woefully inadequate and that the State and Central Government due to paucity of resources would not be able to undertake any additional financial responsibility and, therefore, private voluntary efforts in the education sector on collecting prescribed charges is permissible. This was also visualised in Central Governments New Education Policy. 1986. So as to make education viable without commercialising the education, the Supreme Court evolved a scheme. To our mind, when there are about more than 1300 free seats in Government Colleges, converting less than 1% (NRI seats) of these total seats as payment seats even in the Government Colleges would not offend any provision of the constitution or law. Indeed, Section 4A enables the Government to admit students belonging to foreign countries and NRI students on payment basis. Therefore as observed supra, the Government should evolve a workable scheme even to fill up the unfilled foreign and NRI seats on payment basis treating them as payment seats. We are making this suggestion in view of well settled law that in exercise of the power under Article 226, this Court can even make suggestions though it cannot make law or direct to make law.
37. In W.P. No. 889 of 2001, the appellant studied from Kindergarten to SSC in Guntur district and studied two Intermediate course at Gujarath State. Though she secured 1033rd rank she could not getadmission as she was treated as non-local. Mr. Rammohan Rao contended that she is entitled to be treated as local candidate in respect of Andhra University area and the learned single Judge is not correct in holding that she is a non local candidate.
38. As noticed hereinbefore, the President of India pursuant to or in furtherance of the powers conferred by Clauses (1) and (2) of Article 371-D of the Constitution of India, made Presidential Order which was notified vide G.O.Ms. No. 453, General Administration (SPF-B) dated 3-7-1974 w.e.f. 1-7-1974 providing for equitable opportunities and facilities for the people belonging to different parts of the State, in the matter of admissions to educational Institutions which came into force on the 1st day of July, 1974.
39. The Presidential order divides the entire State of Andhra Pradesh into three local areas with reference erstwhile University areas, namely, Osmania University Local area (OU area), Andhra University local area, (AU area) and Sri Venkteswara University local area (SV area).
40. Para 4 of the Presidential Order defines and explains the terms 'local candidate' and 'non local candidate' which reads thus :
4) Local candidate :-- (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 for the relevant qualifying examination: or
(b) where during the whole or any part of 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 qualifying examination in which he appearded 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 local candidate in relation to - (1) such local area where he has studied for the maximum period out of the said period of seven years; or
(2) where the period of his study in two or more local areas are equal, such local areas where he has studied last in such equal periods;
(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 institutions 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 ;
(1) such local area where he has resided for a maxmimum period out of the said period of seven years; or
(2) where the periods 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 purposes of this paragraph --
(i) 'educational institution' means a University or any educational institution recognised 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 State-wide University or a State-wide educational institution, shall be disregarded.
(iv) the question whether any candidatefor 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 parents or other guardian.
41. Paragraph 8 of the Presidential Order empowers the President to authorise theState Government to issue instructions forefficient enforcement of the Presidential order. In accordance with such authorisation,the Government issued instructions fromtime to time, which were consolidated inG.O.P. No. 646 dated 10-7-1949. Para 11 ofthe said order says that against the 15% ofthe available seats left unreserved in termsof the Presidential Order, the following categories were treated as eligible to apply foradmissions to educational institutions in theState as candidate belonging to the State ofAndhra Pradesh :
1. All local candidates defined in the Presidential Order.
2. 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;
3. Candidates who are children of parents who are in the employment of this State or Central Government, Public Sector Corporations, Local Bodies, Universities and other similar quasi Public Institutions within the State; and
4. Candidates who are spouses of those in the employment of this State or Central Government. Public Sector Corporations, Local Bodies, Universities and educational institutions recognised by the Government or University or other competent authority and similar other quasi-Government institutions within the State.
42. On an analysis of the above, it is clear that a candidate for the purpose of admission in any institution shall be regarded as a local candidate in relation to a local area under sub-paragraph (1) of Para 4 if he or she fulfils either Clause (a) or Clause (b) of sub-paragraph (1), Clause (b) is applicable only to candidates who have not studied in any educational institutions but have resided in the local area for a period of not less than four years immediately preceding the date of commencement of the relevantqualifying examination in which he or she appeared or first appeared. Since the petitioner has studied in educational institutions, she doesn't come under that clause.
43. In order to be treated as local candidate in relation to a local area under Clause (a) one must have studied in an educational Institution or educational institutions in the local area for a period of not less than four consecutive academic years ending with the academic year in which he or she first appeared in the relevant qualifying examination.
44. Admittedly, the appellant did not study in any of the local areas in the State for a minimum period of four consecutive academic years ending the academic year in which she appeared the relevant qualifying examination i.e. two year Intermediate course though she happened to study in Guntur from Kindergarten to SSC for more than ten years. She prosecuted her two-year Intermediate course during 1998-2000 in the State of Gujarath. Since out of the four consecutive academic years ending with the qualifying examination, the petitioner had studied only for two years in Guntur district, she cannot be treated as a local candidate of that area in terms of sub-paragraph (11 of Para 4.
45. However, a candidate who is not regarded as local a candidate under para 4(1) can be treated as a local candidate under sub-paragraph (2) if he/she fulfils either Clause (a) or Clause or Clause (b). Again Clause (b) is applicable only to candidates who have not studied in educational institutions but have resided in the State for a period of not less than seven consecutive academic years immediately preceding the date of commencement of the relevant qualifying examination in which he or he appeared or first appeared. Since the petitioner has studied in educational institutions, she doesn't come under that clause.
46. In order to be treated as local candidate under Clause (a) of sub-paragraph (2) of Paragraph 4 one must have studied in an educational institution or educational institutions in the State for a period of not less than seven consecutive academic years ending with the academic year in which he or she first appeared in the relevant qualifying examination and such candidate will be regarded as a local candidate in relation to (1) such local area where he has studied for the maximum period out of the said period of seven years or (2) where the periods of his or her study in two or more local areas are equal, such local area where the candidate has studied last in such equal periods. Admittedly, the appellant has not fulfilled this clause also as she had not studied for seven consecutive academic years in the State of Andhra Pradesh ending with the relevant qualifying examination of Intermediate. She had studied only for five years in the State out of the seven consecutive years ending with the qualifying examination and she studied the qualifying examination in Gujarat State. In order to be treated as a local candidate under 4(2), it is essential that she must have studied seven consecutive academic years ending with the relevant qualifying examination in the State'.
47. Therefore, it is clear that the petitioner has not fulfilled the criteria laid down under para 4 of the Presidential Order in order to be treated as a local candidate either in terms of para 4(1) or para 4(2). True, the petitioner did study in the State of Andhra Pradesh for a period of more ten years right from kindergarten to SSC and in spite of that she could not be treated as a local candidate in relation to any of the local areas of the State. Had she studied the qualifying examination in the State, the matter would have been different.
48. We do agree that a candidate who is a resident of the State of Andhra pradesh and who had studied in educational institutions right from the kindergarten to SSC in the State except for the two years could hot be treated as a local candidate in relation to any of the local areas whereas it may be possible that a candidate who do not belong to the State of Andhra Pradesh but who had studied 4 consecutive academic years in any local area of the State ending with the academic year in which he appeared or first appeared for the relevant qualifying examination could be regarded as a local candidate though he is not a resident of the State of Andhra Pradesh and studied only for four years in the State. But, having regard to the provisions of the Presidential Order and in the absence of any provision having been made in the Presidential Order governing such situation, no relief can be granted to the petitioner.
49. In the result, for the aforementioned reasons, subject to the above observations in relation to the scheme to be prepared by the State Government for filling up the vacant NRI seats by treating them as 'payment seats', we dismiss the writ appeals. There shall be no order as to seats.