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Andhra Pradesh High Court
Judges : B.S.RAIKOTE, P.VENKATRAMA REDDY, S.S.M.QUADRI
B.Sudhakar - Appellant
Versus
Union of India - Respondent
W.P.No.2817/94
Decided On : 07-01-94
Advocates Appeared :
Mr. G. Raghuram,Mr. P. Innayya Reddy,Mr. S. Rama Murthy Reddy,Mr. M.V. Ramana Reddy
(B) CONSTITUTION OF INDIA, Art.371-D and A.P. Educational Institutions (Regulation of Admissions) Order, 1974 - The presidential Order is not ultravires Art. 371-D.
(C) INTERPRETATION OF STATUTES - Proviso to main clause in a Statute Construction.
Held : Paragraph 5 postulates reservation of eighty five percent of the available seats in every course of study provided by in any non-state-wide University or educational institution which is subject to the control of the at State Government in favour of local candidate in relations to local area in respect of such the University or educational institution. In arriving at the number of seats to be reserved out of the her available seats in favour of local candidates, any fraction of a spat has to be counted as one but at least one seat has to be kept as unreserved. The meaning of this paragraph is very clear and there is no ambiguity, no absurdity or injustice which flows from this meaning, keeping the expression available seats in view.
Where the available seat in any course of study provided by any University or educational institution subject to control of State Government (other than state-wide University or Educational institution) that seat has to be reserved for candidates of the local area under Para 5( 1) and the proviso to sub-paragraph (2) of paragraph 5 cannot be so construed as to treat it as an unreserved seat and this interpretation of para 5 subserves the object of the residential Order and Article 371-D of the constitution having regard to historical background as well as the phraseology of the said provisions, the intention of the Parliament and also of the President is to give preference to the local candidates of each local area.
The proviso ensures that at least one seat is kept as unreserved lest under 85% quota (local) by virtue of sub-paragraph (1) and by the process of counting fracting of a seat as one under sub-paragraph (2) all the available seats shall be treated as reserved . The proviso does not destroy the main provision relating to the reservation of seats for candidates of each area adumbrated in sub-paragraph(1) and the effect of sub-paragraph(2) relating to counting of fraction of a seat as one by denying the only available seat to the category which is entitled to 85%(local candidates); it carves out one seat as unreserved seat from out of reserved seats which but for the proviso would have been included in the reserved seats. The proviso which merely ensures that in the process of any fraction of a seat being counted as one, the unreserved category representing 15% of the available seats is not left without any seat and at least one seat is available as unreserved, cannot be understood or interpreted to mean that this should be to the exclusive of or resulting in denial of the only seat to the reserved category (local) representing 85% of the available seats.
As the provisions of sub-paragraph (2) of paragraph 5 including the proviso are verbatim the same those of sub-paragraph 2 of paragraph 6, both will have the same meaning and will receive the same interpretation but having regard to the setting in which they occur. It follows that when the available seat is only one as no minimum number of available seats is prescribed for application of sub-paragraph (1) of paragraph 5, by parity of reasons, sub-paragraph (2) of paragraph 5 and the proviso there to will not be attracted and the lone available seat will have to be reserved for candidates of the local area and the proviso will not have the effect of converting it as an unreserved seat .
Clause (1) of Article 371-D authorise the President to make different provisions for various parts of the State. That being the scope of the order that may be passed by the President, the impugned Presidential Order, satisfies the requirements of Art. 371-D as such, it cannot be said to be ultra vires Article 371-D of the Constitution. The fortuitous circumstance that a seat in any super specialty created in any local area would not by its invalidate the Presidential Order as being violative of Article 371-D of the Constitution.
In construing a Proviso which is more often appended to an enactment, the general principle is that its meaning and scope are dependent on the principal enacting provision to which it is taken as a proviso and that it cannot be taken as a separate or independent enactment read as divorced from its context unless the context itself compels such a treatment of the proviso.
( 1 ) DOUBTING the correctness of the judgments in Dr. Fazal Ghafoor v. Principal, Osmania Medical College, Hyderabad, (1988) 2 ALT 227, Dr. K. Ashok Kumar v. University of Health Sciences, (1988) 2 Andh Pra LT 463 and B. Ramesh v. University of Health Sciences, Vijayawada, AIR 1991 Andh Pra 1 on the question of interpretation of paragraph 5 of the Andhra Pradesh Educational. Institutions (Regulation of Admission) Order, 1974 (for short the Presidential Order ) our learned brother S. Parvatha Rao, J. , referred the Writ Petition to a Division Bench for reconsideration of the decisions in the said cases by his Order dated 23/02/1994. On 4/03/1994, the Division Bench consisting of our learned brother A. Lakshmana Rao and S. Dasaradha Rama Reddy, JJ. , agreed with the view expressed by the learned single Judge and referred the Writ Petition for consideration by a Full Bench and thus this Writ Petition has come up before us.
( 2 ) THE University of Health Sciences and the Principal, Osmania Medical College, Hyderabad -- Respondents 3 and 4 respectively issued notification inviting applications for admission to various super-speciality courses including D. M. (Nephrology) (Second P. G. Course) from eligible candidates in January, 1994. In response to the said notification, the Writ petitioner as well as some other candidates applied for admission to D. M. (Nephrology ). This course was introduced by providing one seat in Osmania General Hospital from 1990. An entrance examination was conducted for selection and admission of candidates to super-speciality course including the said course. The petitioner and the fifth respondent, among others, appeared for the examination; whereas the petitioner secured the first rank, the fifth respondent secured the third rank. The successful candidates were asked to appear for selection on 21/02/1994 and the classes for the said courses were scheduled to commence from 1/03/1994. The grievance of the petitioner is that in view of the Presidential Order, the said seat in D. M. (Nephrology) was treated as reserved for the students of the local area and allotted to the fifth respondent who is a local candidate in the Osmania University local area and the petitioner was thus denied the seat as he is non-local in that area, so he filed this Writ Petition praying for a Writ of Mandamus declaring that the action of respondents 1 to 3 in treating the seat as earmarked for selection from out" of local candidates in Osmania University local area under paragraph 5 of the Presidential Order, as arbitrary and ultra vires Arts. 14 and 371d of the Constitution; that the sole seat in D. M. (Nephrology) is available to all the candidates irrespective of their local status on the basis of rank obtained in the entrance examination, and for a further declaration that paragraphs 2 (1) (a), 5 and 6 of the Presidential Order insofar as they apply to super-speciality course in the Medical Colleges of Andhra Pradesh, are ultra vires Article 371d of the Constitution and subversive of public interest and for a consequential direction to allot the seat to him.
( 3 ) MR. G. Raghuram, the learned counsel for the petitioner, vehemently contended that on its phraseology and the historical background in which it came to be passed, paragraph 5 of the Presidential Order should be so construed as to mean that for admission in super-speciality courses merit alone should count but the interpretation placed by Division Benches of this Court on paragraph 5 of the Presidential Order in Dr. Fazal Ghafoor s case (1988 (2) ALT 227) (supra), Dr. K. Ashok Kumar s case (1988 (2) ALT 463) (supra) and Ramesh s case (AIR 1991 Andh Pra 1) (supra) completely ignores this aspect as such it is against the public interest and wholly untenable in view of the express wording of the proviso appended to that para and that such interpretation results in denial of equal opportunity to candidates of other regions of the State. He argued t
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