Supreme Court of India
DR. SANDEEP S/O SADASHIVRAO KANSURKAR AND OTHERSversusUNION OF INDIA AND OTHERS
- Citation
- 2015 INSC 807
- Decided
- 27 October 2015
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
The special provisions under Article 371‑D and the 1974 Presidential Order permitting domicile‑based reservation for super‑specialty medical courses in Andhra Pradesh and Telangana are constitutionally valid, so the petition is dismissed.
Summary
The petitioners challenged the domicile‑based reservation for admission to super‑specialty medical courses in Andhra Pradesh, Telangana and Tamil Nadu, arguing that it violated Articles 14 and 16 and was contrary to national interest. The States relied on the 1974 Presidential Order issued under Article 371‑D and the 1979 circular, which reserve 85% of seats for local candidates and keep 15% unreserved. The Court examined the constitutional validity of these provisions, the applicability of the Dr Pradeep Jain scheme, and earlier precedents on reservation in postgraduate medical education. It held that the special provisions under Article 371‑D and the Presidential Order are constitutionally valid and do not infringe the equality clause. Consequently, the writ petition was dismissed with respect to Andhra Pradesh and Telangana, while the matter concerning Tamil Nadu was adjourned for later hearing.
Issues considered
- Whether domicile‑based reservation for super‑specialty medical courses in Andhra Pradesh, Telangana and Tamil Nadu violates Articles 14 and 16 of the Constitution.
- Whether Article 371‑D and the 1974 Presidential Order empower the States to reserve seats for local candidates in super‑specialty courses.
- Whether the 15% unreserved seats must be filled by candidates from outside the State.
- Whether the Supreme Court can modify or override the Presidential Order or the 1979 circular.
- Whether the scheme laid down in Dr Pradeep Jain applies to super‑specialty admissions in the concerned States.
Legislation cited
- Andhra Pradesh Educational Institutions (Regulations and Admissions) Orders. 1974
- A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Acts. 1983
- G.O.P. No.646 (1979) Circular
- Medical Council of India Postgraduate Medical Education Regulationss. 2000, s. Amended 2010
Subjects
reservationdomicilesuper-specialty medical coursesArticle 371-Dequality clausemeritmedical education admissionPresidential Order 1974Andhra PradeshTelanganaTamil Nadu
Judgment
[2015] 14 S.C.R. 328 ,
.A DR. SANDEEP S/O SADASHIVRAO KANSURKAR
AND OTHERS
v.
UNION OF INDIA AND OTHERS
B
(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 ofAndhra 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 SUPREME COURT REPORTS [2015] 14S.C.R.
A 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;
B 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.
c 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)
D 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
E 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
F (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
G 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.
H
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 331
UNION OF INDIA
Case Law Reference A
(1999) 1sec120 referred to Para 8
(2013) 1o sec 231 referred to Para 8
(2014) 11 sec 456 referred to Para 8
B
(2003) 11 sec 146 referred to Para 8
(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 super-
specialty 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
1974 (for short "the Presidential Order") issued under Article
371-D of the Constitution and G.O.P. No.646 dated 1Q•h July,
1979 issued by the State of Andhra Pradesh (for short, 'the
1979 circular'), which are really not applicable to the super-
specialty 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.
8. It is submitted by Ms. lndu Malhotra, learned senior
counsel appearing for the petitioners that though Article 371-
H
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 Others 1• 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 Karnataka 3 . 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 /ndia 4 , 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 2015-
2016 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.
H
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 lndia 6 , Dr. Dinesh Kumar vs. Motilal Nehru
Medical College 7 , C. Surekha vs. Union of India• and Dr.
F Fazal Ghafoor vs. Union of India and Others 9 • 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. 341
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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342 SUPREME COURT REPORTS [2015] 14 S.C.R.
A (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
B · 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 (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
D specified in this behalf in 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
E 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."
F
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.
G (3) It shall come into force on the 1''day of July, 1974.
2. Interpretation:- (1) In this Order, unless the context
otherwise requires:-
H
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 343
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, 1974.
(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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344 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 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 State-
wide University or State-wide educational institution)
B 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
c 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 State-
wide Educational institution) which is subject to the control
D 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
E
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.
F 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
G 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.
H
DR. SANDEEP·S/O SADASHIVRAO KANSURKAR v. 345
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 sub- C
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 G
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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346 SUPREME COURT REPORTS [2015J 14 S.C.R.
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".]
Explanation -For the purpose of this paragraph.
B (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,
c 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,-
D (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
E
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.]
F 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
G 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
H
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 347
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: B
Provided that there shall be at least one unreserved seat.
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.
E
(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.
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, ifnecessary, 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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·1 -
348 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 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
B 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
c 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.
D
(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
E 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."
F 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
G
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
H
DR. .SAN DEEP S/O SADASHIVRAO KANSURKAR v. 349
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. Government or other
competent authority (whether before or after the
commencement of the Order) in respect of reservations
in the matter of admission .to any University or other C
education Institution in favor or women, socially and
educationally backward classes of citizens, the
Scheduled Castes and the Scheduled Tribes in so far
as such provisions are not inconsistent with the Order.
3. After the coming into force of the above Presidential D
Order, with effect from 1-7-1974, admissions to the
educational institutions in the entire State are to be made
in the light of the provisions of the said order. According
to Paragraph 4 of the Order a candidate for admission
to any course of study shall be regarded as a local E
candidate in relation to the 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 F
ending with the academic year in which he appeared
or, as the case may be, first appeared in relevant
qualifying examination; or
(b) where during the whole or any part of the four
consecutive academic years ending with the G
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
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350 SUPREME COURT REPORTS (2015] 14 S.C.R.
A period of not less than four years immediately
preceding the date of commencement of the relevant
qualifying examination in which he appeared, or, as
the case may be, first appeared.
4. It must be noted that para 4(a) as extracted above
B covers the cases of those candidates who studied in an
educational institution or educational institutions 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 relevant
c qualifying examination; while para 4 (b) applies to the
case of other candidates. For purposes of para 4(a)
educational institution has been defined as a University
or any educational institution recognized by the State
Government, a University or other competent authority.
D The eligibility of a candidate who has studied during any
part of the four years period in an unrecognized institution
will have to be dealt with the under para 4(b). While
considering the eligibility of a candidate to be regarded
as a local candidate, under paragraph 4(a) of the Order
E by virtue of four consecutive years of Study in a local area,
it should be noted that in reckoning the consecutive
academic years of study, any interruption in the period
of his study ,by reason of his failure to pass any
examination shall be disregarded. For instance, a
F candidate who has studied in the IXth and Xth Classes
and the Junior and Senior Intermediate Classes in
institutions of the sale local area with a break of one year
after the Xth class on account of failure to pass the Xth
Class examination at the first attempt, shall be regarded
G as a local candidate in relation to that local area for
admission to a degree course in any institution in that
area.
5. The above definition of the local candidate (as it stood
until it was amended with effect from 25-11-1976) had
H
DR. SAN DEEP S/O SADASHIVRAO KANSURKAR v. 351
UNION OF INDIA[DIPAK MISRA, J.]
given rise to certain situations wherein some of the A
candidates belonging to the State of Andhra Pradesh
who have studied or resided throughout within the State
came to be regarded as non-local candidates in all the
local areas within the State. In order to avoid such a
situation, the Government of India have since issued the B
Andhra Pradesh Educational Institutions (Regulation of
Admission) Second Amendment Order, 1976 amplifying
the said definition in paragraph 4 of the Order
6. The Andhra Pradesh Educational Institutions
(Regulation of Admissions) Second Amendment Order, C
1976 inserts a new sub-paragraph in the said 1974
Order-viz., sub-paragraph (2) to Paragraph 4 thereby
making provision for considering the claims of persons,
who under the old definition would have become non-
local in relation to all local areas in the State. According D
to sub-para (2) (a) of Para 4. after amendment. if such a
candidate 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 on. as the case may be. first appeared for E
the relevant qualifying examination. he shall be regarded
as a local candidate in relation to that local area where
he had studied for the longest period out of the said
period of seven years. In the event of the periods of study
in two or more local areas being equal he shall be F
regarded as local candidate in relation to ·that local area
where he studied during the last of the said equal periods.
Clause (b) to sub-para (2) applies to a candidate who,
during the whole or any part of the seven consecutive
academic years ending with the academic year in which G
he appeared or as the case may be, first appeared for
the relevant qualifying examination has not studied in
educational institutions in any local area, but has resided
in the State during the whole of the said seven years, the
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352 SUPREME COURT REPORTS [2015] 14 S.C.R.
A candidate shall be regarded as a local candidate in
relation to that local area where he has resided for the
longest period out of the said seven year period. This
residence test will be applies to candidates in whose
cases there is a gap in study, occasioned otherwise than
B by reason of failure to pass in an examination, in the
prescribed .full term of seven years immediately
preceding the relevant qualifying examination. It has also
been provided that where the periods of residence in
two or more local areas are equal, such a candidate shall
C be regarded as a local candidate in relation to the local
area where he resided last in such equal periods. The
application of the liberalized definitions made through
the Second Amendment Order are illustrated by the
examples given in the Annexure -1.
D xxxxx xxxxx
• 9. The Government have directed that for the purpose of
admission into educational institutions, those who claim
to be local candidates with reference to para 4(1) (a) or
para 4(2) (a) of the Andhra Pradesh Educational
E
Institutions (Regulation of Admissions) Order, 1974
should produce evidence in the form of study certificates
issued by the heads of the educational institutions
concerned indicating the details of the year or years in
which the candidate has studied in an educational
F
institution or institutions in such local area for a period of
not less that four or seven consecutive academic years
ending with academic year in which he appeared or, as
the case may be, first appeared in the relevant qualifying
examination. Those who do not qualify as local
G candidates under para 4(1) (a) or 4(2) (a) but claim to
qualify by virtue of residence under para 4(1 )(b) or para
4 (2) (b) of the said order should produce a certificate
issued by an Officer of the Revenue Department not
H
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 353
UNION OF INDIA[DIPAK MISRA, J.]
below the rank of Tahsildar in the form annexed vide A
Annexure-11.
xxxxx xxxxx
11. As clarifications were being sought on the question
as to who should be considered eligible to apply as B
candidates belonging to the State of Andhra Pradesh
forthe purpose of admission to courses of studies offered
by educational institutions, subject to the control of the
State Government against 15% of the available seats
kept unreserved in terms of Andhra Pradesh Educational c
Institutions (Regulations of Admissions) Order, 1974 the
Government after careful consideration have directed that
the following categories of candidates may be treated
as eligible to apply for admissions to educational
institutions in the State subject to the control of the State
0
Government. as candidates belonging to the State of
Andhra Pradesh against the 15% of the available seats
left unreserved in terms of the Presidential Order:
(i) All local candidates defined in the Presidential
Order. E
(ii) 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; F
(iii) Candidates who are children of parents who are
in the employment of this State or Central Government,
Public Sector corporation, Local Bodies, Universities
and other similar quasi-public institutions within the G
State; and
(iv) Candidates who are spouses of those in the
employment of this State or Central Government,
Public Sector Corporations, Local Bodies,
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354 SUPREME COURT REPORTS (2015] 14 S.C.R.
A Universities and educational institutions recognized
by the Government a University or other competent
authority and similar other quasi-Government
institutions within the State.
12. It has been decided that persons in the employment
B of this State or Central Government, Public Sector
Corporations, Local Bodies, Universities and other
similar Quasi-Public Institutions, within the State may be
treated as eligible to apply for admission to the part-time
course of study offered by the educational institutions in
c the State subject to the control of the s.tate government
as candidates belonging to the State of Andhra Pradesh.
'
13. The Government consider that in the large majority
of cases falling under the above categories, "nativity" may
D not be in doubt. The Heads of Educational Institutions or
other admission authorities may call for appropriate
certificates of study/residence or employment in cases
of doubt."
We shall, as we are obliged to in the instant case,
E proceed to deal with the purport of the said circular on the
bedrock of the Presidential Order. Be it clarified, we are not
called upon to decide upon the constitutional validity of the
circular', but to understand the purport of the same through the
interpretative purpose.
F 17. In Chief Justice of A.P. vs. L. II.A. Dixitulu 10 , the
question arose before the Constitution Bench of this Court as
to whether Clause 3 of Article 371-D of the Constitution that
deals with civil services of the State would include the staff of
the High Court or of the Sub-ordinate judiciary. The Constitution
G Bench held that the statements and objects of reasons do not
indicate that there was any intention whatsoever on the part of
the legislature to impair or derogate from the scheme of
securing Independence of the judiciary as enshrined in Articles
H 10
(1979) 2 sec 34
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 355
UNION OF INDIA[DIPAK MISRA, J.]
229 and 225; and indeed the amendment or abridgment of A
this basic sche'me was never an issue of debate in Parliament.
The Constitution Bench while commenting on the Article 371-
D had to say this:-
"73. ltwill be seen from the above extract, thatthe primary
purpose of enacting Article 371-D was two fold: (1) To B
promote "accelerated development of the backward
areas of the State of Andhra so as tosecure the balanced
development of the State as a whole", and (it) to provide
"equitable opportunities to different areas of the State in
the matter of education, employment and career C
prospects in public service".
74. To achieve this primary object, clause (1) of Article
371-D empowers the President to provide by order, "for
equitable opportunities and facilities for the people 0
belonging to different parts of the State in the matter of
public employment and in the matter of education".
Clause (2) of the article is complementary to clause (1).
It particularises the matters which an order made under
clause (1) may provide. For instance, its sub-clause (c)(t) E
enables the President to specify in his Order, "the extent
to which, the manner in which and the conditions subject
to which", preference or reservati0n shall be given or
made in the matter of direct recruitment to posts in any
local cadre under the State Government or under any F
local authority. Sub-clause (c)further makes it clear that
residence for a specified period in the local area, can
be made a condition for recruitment to any such local
cadre. Thus, clause (4) also is directly designed to
achieve the primary object of the legislation."
G
18. After so stating the Constitution Bench has ruled that
the evil that INas sought to be remedied pertained to inequitable
opportunities and facilities for the people belonging to different
parts of the State of Andhra Pradesh in matters of public
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356 SUPREME COURT REPOR-rS (2015) 14 S.C.R.
A employment and in the matter of education and had no causal
nexus whatever to the independence of the High Court and
subordinate judiciary which the Founding Fathers have with
solemn concern vouchsafed in Articles 229 and 235 of the
Constitution. The Court also opined that the public agitation
B which led to the enactment of Article 371-D did not have any
grievance against the basic scheme of Chapters V and VI in
Part VI of the Constitution. The Court interpreting the Article in
entirety eventually expressed the view that the Parliament never
had intendeq to confer a wide, liberal interpretation which will
c defeat or render otiose the scheme of Chapters IV and V, Part
VI particularized in Articles 229 and 235 of the Constitution.
19. In Dr. Pradeep Jain (supra), a three-Judge Bench
was dealing with admissions to medical colleges, both at the
undergraduate and at the post-graduate levels. The question
D that arose for consideration was whether regard being had to
the constitutional values, admission to medical colleges or any
other institution of higher learning situated in a State can be
confined to those who have their domicile within the State or
who are residents within the State for a specified number of
E years or can any reservation in admissions be made for them
so as to given the precedence over those who do not possess
domicile or residentjal qualification within the State, irrespective
of merit. After referring to various aspects in the Constitution
·. and authorities rendered in N. Vasundara v. State of
F Mysore11 , Jagdish Saran v. Union of lndia 12 and various
other authorities the three-Judge Bench came to hold thus:-
''We are therefore of the view that so far as admissions
to post-graduate courses, such as MS, MD and the like
are concerned, it would be eminently desirable not to
G provide for any reservation based on residence
requirement within the State or on institutional preference.
But, having regard to broader considerations of equality
11
(1971)2 sec 22
12
(1980) 2 sec 768
H
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 35.7
UNION OF INDIA[DIPAK MISRA, J.]
of opportunity and institutional continuity in education A
which has its own importance and value, we would direct
that though residence requirement within the State shall
not be a ground for reservation in admissions to post-
graduate courses, a certain percentage of seats may in
the present circumstances, be reserved on the basis of B
institutional preferen'ce in the sense that a student who
has passed MBBS course from a medical college or
university, may be given preference for admission to the
post-graduate course in the same medical college or
university but such reservation on the basis of institutional C
preference should not in any event exceed 50 per cent
of the total number of open seats available for admission
to the post-graduate course. This outer limit which we
are fixing will also be subject to revision oo the lower
side by the Indian Medical Council in the same manner o
as directed by us in the case of admissions to the MBBS
course. But, even in regard to admissions to the post-
graduate course, we would direct that so far as super
specialities such as neuro-surgery and cardiology are
concerned, there should be no reservation at all even on E
the basis of institutional preference and admissions
should be granted purely on merit on all-India basis."
20. After the said judgment was delivered, the said three-
Judge Bench passed a clarificatory order in Reita Nirankari
(supra) wherein the Court considered three aspects one of F
which is relevant for the present case. We reproduce the
same:-
· "We may make it clear that the judgment will not apply to
the States of Andhra Pradesh and Jam mu and Kashmir
G
because at the time of hearing of the main writ petitions,
it was pointed out to us by the learned advocates
appearing on behalf of those States that there were
special constitutional provisions in regard to them which
would need independent consideration by this Court."
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358 SUPREME COURT REPORTS [2015] 14S.C.R.
A 21. The aforesaid clarificatory order has its own
significance, for it undeniably excludes the applicability of the
domicile test stated in Dr. Pradeep Jain (supra) in respect of
the State of Andhra Pradesh. At this stage, it would be
appropriate to refer to the case of C. Surekha (supra). The
B said case arose from Osmania University in Andhra Pradesh.
The petitioner therein had passed from the said University and
he intended to take the All India Entrance Examination for
admission to P.G. medical course in 1988. He had challenged
the constitutional validity of Article 371-0(2) (b) (iii) and C (ii)
c of the Constitution as well as the Presidential Order as a
consequence of which the students of Andhra Pradesh have
been excluded for competing in the aforesaid examination.
The two-Judge Bench referred to the decisions in Dr. Pradeep
Jain (supra), Reita Nirankari (supra), noted the stand of the
oUnion of India and the Andhra Pradesh in their respective
counter affidavits that had asserted that institutions in the State
of Andhra Pradesh were kept out of from the purview of the
scheme in view of the decision rendered in the case of Dr.
Pradeep Jain (supra). The Court also took note of the fact
E that the issue was kept open in Reita Nirankari (supra),
referred to the pronouncements in P. Sambamurthy v. State
ofAndhra Pradesh13 , Minerva Mills Ltd. v. Union oflndia 14 ,
P. Sampath Kumar v. Union of Jndia15 and reiterated the
principle that Article 371-0(3) was valid because clause (10)
F of the Article 371-0 provides as follows:-
"The provisions of this article and of any order made by
the President thereunder shall have effect notwithstanding
anything in any other provision of this Constitution or in
any other 1.awforthe time being in force."
G 22. As has been stated earlier, Clause 5 of the Article
371-0 was declared ultra vi res earlier with which we are not
13<1987) 1 sec 362
• <1980) 3 sec 625
1
"(1985) 4 sec 458
H
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 359
UNION OF INDIA[DIPAK MISRA, J.]
concerned with in this case. Thereafter, the Court posed the A
question whether within the Presidential Order, the Scheme in
Dr. Pradeep Jain (supra) can be worked out. After so stating,
the Court noted thus:-
5...... "The Presidential Order of 1974 defines "available
seats" and "local area" as also "statewide educational B
institutions" in sub~clauses (a), (b) and (e) of clause 2.
Clause 3 describes the three local areas. Clause 9 gives
overriding effect to the [?residential Order. Under the
Presidential Order, admission to the educational
institutions is limited only to local and nonlocal C
candidates . .It does not contemplate of admission into
educational institutions otherwise. The contention of Mr
Choudhary that if the Presidential Order has got to be
given effect to in its true spirit, the scheme in Dr Pradeep
Jain case cannot, consistently with the Presidential Order, D
be implemented cannot be prushed aside and bears
serious examination on certain important aspects. If the
15 per cent seats are not treated as reserved in terms of
the Presidential Order and are intended to go to those
who qualify at the All India Entrance Examination it is a E
statable possibility that the Presidential Order might be
diluted. It may be doubtful if, in ascertaining the import of
'available seats', it would be permissible to deduct the
15 per cent seats for non-locals applying the formula of
Dr Pradeep Jain case. We are inclined to think that the F
contention advanced by Mr Choudhary on behalf of the
respondent-State that within the ambit of the Presidential
Order, the scheme adopted by this Court in Dr Pradeep
Jain case is eminently arguable and raises certain
important issues. It is, however, not necessary to G
pronounce on \his question finally as the petitioner,
admittedly, has already been provided admission in one
of the Medical Colleges.
H
360 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 6. Before we part with the case we would, however, like
to indicate that the Scheme in Dr Pradeep Jain case is,
in the opinion of this Court, in national interest as also in
the interest of the States. Competition at the national level
is bound to add to and improve quality. Andhra Pradesh
B students on the whole are not at all backward and we
are of the opinion that they would stand well on
comparative basis. It is for the State and the Central
Governments, apart from the legal issues involved to
decide whether in the general interest of the State, the
c scheme in the Presidential Order should either be so
understood as to permit and assimilate the Pradeep Jain
principle or should be explained, if necessary, by an
appropriate amendment of the Presidential Order. We
would, however, leave it to the respondents to take their
D decision in the matter. We would not like, therefore, to
pronounce on the legal question finally in this case.
23. Relying on the said passages, it is submitted by Mr.
Marlapalle, learned senior counsel that the observations made
in 1988, despite expiry of two decades and seven years, has
E not been taken note of by the authorities which indicates an
apathetic attitude. Learned senior counsel would contend that
the State of Andhra Pradesh by no stretch of imagination can
be regarded as an educationally backward region compared
to rest of the country. It is also contended by him that the
F Presidential Order was issued at a stage feeling the need of
the State but the same is not the condition after passage of
more than 40 years. In fact, submits Mr. Marlapalle, renouncing
the merit criteria on the domicile basis especially in respect of
post graduate and super speciality courses would tantamount
G to denouncing the concept of merit which has been enshrined
commencing from Dr. Pradeep Jain (supra) to many a
judgment rendered thereafter in respect of the medical
education. The protective affirmation meant for the State of
Andhra Pradesh by the Presidential Order issued in 1974 has
H
DR. SANDEEP S/0 SADASHIVRAO KANSURKAR v. 361
UNION OF INDIA[DIPAK MISRA, J.]
to be interpreted in such a manner so that the 50% which has A
been demarcated should go to otherwise meritorious
candidates who have taken All India Entrance Examination for
super speciality courses. The concept of continuity of
education, its progress and the rise in time, submits Mr.
Marlapalle, requires this Court to give a broader interpretation B
to the 15% quota and not to be guided by the 1979 clarificatory
circular which is otherwise indefensible in law.
24. It is apt to note here that Mr-. Marlapalle has
commended us to the authority in Dr. Dinesh Kumar (supra),
but we need not refer to the same as it dealt with the reservation C
on the domicile basis, regard being had to the principle stated
in Dr. Pradeep Jain (supra) and as far as the State of And~ra
Pradesh (undivided) is concerned, the said authority was not
made applicable as stated in Reita Nirankari (supra).
D
25. At this juncture, it is absolutely necessitous to refer to
a three-Judge Bench decision in NTR University of Health
Sciences v. G. Babu Rajendra Prasad and Anr. 16 In the said
case, the question that was posed was whether the·
Government of Andhra Pradesh while framing the 1979 circular
in terms of Presidential Order issued in 1974 under Article E
371-D of the Constitution of India was bound to provide
reservation for 15% of non-local seats, although reservation in
terms of the policy decision had been taken in respect of the
seats available for local candidates. It is worth mentioning F
here that the controversy had travelled to this Court questioning
the validity of the policy of the State of Andhra Pradesh as
regards the non-reservation of scheduled castes, scheduled
tribes and backward classes within 15% that has been
separately demarcated. The learned Single Judge of the High G
Co1,1rt had directed to reserve 15% seats reserved for the
reserved category. The Division Bench in Letters Patent appeal
. noted the conflict of views in earlier Division Bench judgments
and referred the matter to the Full Bench on the issue whether
" (2003) s sec 350
H
362 SUPREME COURT REPORTS . {2015] 14 S.C.R.
A the reservatioris in terms of Article 15(4) of the Constitution of
India in favour of scheduled castes, scheduled tribes and
backward classes could be provided in respect of 15% of the
unreserved seats under the Presidential Order, 1974. The
Full Bench analyzing the law in the field dismissed the appeals.
B This Court dealing with the controversy referred to Article 371-
D of the Constitution, the Presidential Order, reproduced
various paragraphs from the same, took note of the 1979
circular issued by \he Government of Andhra Pradesh, noted
the submissions of the learned counsel for the parties, took
C into consideration the formation of Universities by the undivided
State of Andhra Pradesh after the Presidential Order and stated
thus:-
"10. A bare perusal of the definition of.local area read
with paras 3, 4 and 5 of the Presidential Order, as referred
D to hereinbefore, it would be evident that 85% of the seats
are reserved for local candidates in relation to local areas.
So far as a university area is concerned. a local
candidate in one particular university area would be a
non-local one in another. The criteria for admission of a
E candidate in the superspeciality courses in the university
on the ground of being local or non-local is. therefore
· directly referable to the university area and not the
boundaries of the State of Andhra Pradesh.
11 ....... In the matter of admission, the Health University
F
had followed the procedure provided in Annexure Ill of
GOP No. 646 dated 10-7-1979 having regard to the fact
that by reason of the Presidential Order, 1974 only 85%
of the seats are reserved in favour of the local candidates
which are required to be confined to the university area
G
only. We, thus, do not find any legal infirmity in the action
of the appellants herein in directing that 15% reserved
for candidates of non-local area may be filled up only on
merit.
H
OR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 363
UNION OF INDIA[DIPAK MISRA, J.)
12. Article 371-D of the Constitution of India contains a A
special provision applicable to the State of Andhra
Pradesh only. 54% of seats are required to be filled up
from open categories and 46% of seats are to be filled
up from the reserved category candidates in each of the
three regions from the medical colleges and engineering B
colleges. Having regard to the reservations made
regionwise, indisputably 85% of seats are to be filled up
from amongst local candidates whereas only 15% of
seats are to be filled up from amongst outside
candidates." C
[E_mphasis.Supplied]
26. Be it noted, it was contended on behalf of the appellant
therein that the High Court had committed a manifest error by
directing for reservation of seats for reserved category from 0
15% open seats also on the ground that such a reservation
would exceed 50% which is not permissible. The Court
referred to the Presidential Order and eventually opined thus:-
"ln the event, the ratio of the impugned judgment of the
High Court is given effect to having regard to the limited E
number of seats available by providing reservation of an
additional seat, principle of reservation to the extent is
50% would be violated. Furthermore, it is not for the High
Court to say as to the efficacy or otherwise of the policy
of the State as regards providing for reservation for the F
rese·rved category candidates and in that view of the
matter the High Court, in our opinion must be held to have
committed a manifest error in issuing the impugned
a
directions, as result whereof percentage of reservation
would exceed 46%. Such a direction by the High Court G
is not contemplated in law."
27. Though the said authority had understood local area
and the boundaries of the State, it was instructive to refer to
the said passage. It is clear that it was addressing the
H
364 SUPREME COURT REPORTS (2015) 14 S.C.R.
A controversy as regards the 15% but dealing with the
reservation of scheduled castes, scheduled tribes and other
backward classes within the said 15% percentage in the
context of instructions/circular of 1979 issued by the State
Government. The aforesaid decision makes it graphically clear
B that the 85% reservation has been in respect of local areas
and non-locals area is directly referable to the University area.
One has to bear in mind that the local areas and local
candidates have been defined in the Presidential Order and it
also empowers the State Government to issue appropriate
c directions for the purpose of giving effect to the Presidential
Order. In pursuance of the power conferred in the said
Presidential Order, the State Government has issued the
Circular in 1979. The Circular, as is manifest, reiterates the
definitions of "local area" and "local candidates" and
D simultaneously it also lays the postulate the manner of
implementation of reservation of local candidates as stipulated
in the Presidential Order. As far as 15% of the available seats
which are kept unreserved in terms of Presidential Order, the
State Oovernment relies on the power conferred on it that the
E 15% of the available seats are kept unreserved subjectto the
control of the State Government. The State Government has
clarified the position about the local candidates in respect of
15% as provided in the Presidential Order. It covers certain
categories but the cavil does not relate to the same. In fact, on
F a keen scrutiny, it is demonstrable that it engulfs certain
categories which takes within its umbrella such candidates
who are working in the State of Andhra Pradesh in certain State
Government or Central Government or other public
undertakings or the candidates whose spouses are in the
G employment of the State or Central Government or public sector
corporation, etc. It does not refer to candidates who are from
outside. That is the only interpretation which can be placed on
the circular. It is the situation in vogue in the State of Andhra
Pradesh since 1979 and in the absence of any challenge to
H the circular, there is no need to get into it. Therefore, reference
JR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 365
UNION OF INDIA[DIPAK MISRA, J.]
to the other Acts, Rules, Regulations which have been so done A
by Mr. Marlapalle do not require to be dwelt upon.
28. One aspect that has been highlighted by Mr.
Marlapalle that almost 27 years back, this Court in C. Surekha
(supra) had expressed the view that the scheme indicated in
Dr. Pradeep Jain (supra) is in national interest and competition B
at the national level is bound to add to and improve quality and
Ahdra Pradesh students on the whole are not at all backward
and they would stand well on the comparative basis. The need
for assimilation of the principles stated in Dr. Pradeep Jain
(supra) was felt and it was observed that there should be an C
appropriate amendment of the Presidential Order. However,
as the Court cannot do it, it left to the competent authorities.
29. In this context, the decisions that have been cited by
the learned oounsel for the petitioner become relevant. In Preeti D
Srivastava (supra), the Constitution Bench expressed that the
object of Article 15(4) is to advance the equality of.principle by
providing for protective discrimination in favour of the weaker
sections so that they may become stronger and may be able
. '
to compete equally with others more fortunate, but E
simultaneously one cannot ignore the wider interests of society
wh_ile devising such special provisions. The Court highlighted
on the concept of national interest such as promoting
excellence at the highest level and providing the best talent in
the country with the maximum available facilities to excel and F
contribute to society which are also to be borne in mind.
Analysing further, the majority stated thus:-
"In the case of Dr Jagadish Saran v. Union of India this
Court observed that at the highest scales of speciality,
. the best skill or talent must be hand-picked by selection G
according to capability. Losing apotential great scientist
or technologist would be a national loss. That is why the
Court observed that the higher the level of education the
lesser should. be the reservation. There are similar
H.
366 SUPREME COURT REPORTS [2015] 14 S.C.R.
A observations in Dr Pradeep Jain v. Union of India.
Undoubtedly, Dr Pradeep Jain v. Union of India did not
deal with reservation in favour of the Scheduled Castes
and the Scheduled Tribes. It dealt with reservation in
favour of residents and students of the same University.
B Nevertheless it correctly extended the principle laid down
in Dr Jagadish Saran v. Union of India to these kinds of
reservation also, holding that at the highest levels of
medical education excellence cannot be compromised
to the detriment of the nation. Admissions to the highest
c available medical courses in the country at the
superspeciality levels, where even the facilities for training
are limited, must be given only on the basis of competitive
merit. There can be no relaxation at this level."
30. In Saurabh Chaudri (supra), the core question that
D arose for consideration centered around the constitutional
validity of reservation whether based on domicile or institution
in the matter of admission into post-graduate courses in
Government run medical colleges. In the said case, the court
referred to 'the writ petition filed by the candidates who were
E residents of Delhi. They had joined various medical colleges
within Delhi for undertaking their MBBS courses against the
15% all-India quota on being qualified in the All-India Entrance
Examination. They intended to join medical colleges in Delhi
for their post-graduate medical courses. They were issued
F admission forms regard being had to the decision in Parag
Gupta (Dr.) v. University of Delhi17 • The University also
informed them that the candidates would be .entitled to
admission in the post-graduate courses subject to the decision
in the matter pending before this Court in Magan Mehrotra v.
G Union of/ndia 18 •
31. In Magan Mehrotra (supra) a three-Judge Bench of
this Court held that reservation by way of institutional
11
(2000) s sec 684
H "(2003) 11 sec 186
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 367
UNION OF INDIA[DIPAK MISRA, J.]
preference be maintained but also directed certain States to A
follow the pattern of institutional preferences as has been
indicated in Dr. PradeepJain (supra). Delhi University issued
a notification on the basis of the judgment rendered in Magan
Mehrotra (supra). The writ petitioners assailed the notification
issued by the Delhi University as reservation was made by B
way of institutional preference for admission to post graduate
courses. After the decision was rendered in Magan Mehrotra
(supra), a two-Judge Bench referred the matter to a three-
Judge Bench which ultimately directed it to be placed before
a five-Judge Bench. The reservation of any kind, namely, c
residence or institutional preference in the constitutional
backdrop was the subject matter of assail. The first question
posed for consideration was whether tile reservation on the
basis of a domicile is permissible in terms of Clause 1 of Article
15 of the Constitution of India. The Court referred to the D
decision in D.P. Joshi v. State of Madhya Bharat19 and State
of U.P. v. Pradip Tandon 20 , and answered the issue in the
negative. The second issue that the Court addressed was
whether reservation by way of institutional preference comes
within the suspected classification warranting strict scrutiny test. E
The Court referred to Ram Krishna Dalmia v. Justice S.R.
Tendolkar" and various other authorities and opined that no
case had been made out for invoking the doctrine of strict
construction or intermediate construction. The third issue that
the Court dwelled upon was whether the reservation by F
institutional preference is valid. The Court referred to the
authorities in Jagadish Saran (supra), Dr. D.P. Joshi (supra),
Chitra Ghosh v. Union of lndia 22 and various other decisions
including that of Dr. Pradeep Jain (supra) and opined that in
Dr. Pradeep Jain (supra) a distinction was made between G
. the undergraduate course i.e. MBBS course and post-graduate
19
(1955) 1.SCR 1215 =AIR 1955 SC 334
20
(1975)1sec267
21
AIR 1958 SC 538
22
(1969)2SCC228 H
368 SUPREME COURT REPORTS [2015] 14S.C.R.
A medical course as also super specialist courses and,
therefore, the said authority sought to strike a balance of rights
and interests of concerned. The Constitution Bench took note
of the fact that the percentage of seats to be allotted on all-
India basis, however, came to be modified in Dr. Dinesh
B Kumar (supra). It also took note of the fact thatthe directions
issued from time to time regulating the admissions in different
courses of study in the said case, the deviation of the said
dicta by the two-Judge Bench in Dr. Parag Gupta (supra)
wherein it created reservation on domicile which was forbidden
C in Dr. Pradeep Jain (supra). The larger Bench also referred
to the authority in A/IMS Students' Union v AllMS23 , T.M.
Pai Foundation v. State of Karnataka 24 and eventually held
as follows:-
70. We, therefore, do not find any reason to depart from
D the ratio laid down by this Court in Dr Pradeep Jain. The
logical corollary of our finding is that reservation by way
of institutional preference must be held to be not
offending Article 14 of the Constitution of India.
71. However, the test to uphold the validity of a statute on
E
equality must be judged on the touchstone of
reasonableness. It was noticed in Dr Pradeep Jain case
that reservation to the extent of 50% was held to be
reasonable.Although subsequently, in DrDinesh Kumar
. (II) case 25 it was reduced to 25% of the total seats. The
F
said percentage of reservation was fixed keeping in view·
the situation as then existing. The situation has now
changed to a great extent. Twenty years have passed.
The country has during this time produced a large number
of postgraduate doctors. Our Constitution is organic in
G
· nature. Being a living organ, it is ongoing and with the
passage of time, law must change. Horizons of
constitutional law are expanding.
" c2002) 1 sec 428
,. c2002) 8 sec 481
H " (1986) 3 sec 727
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 369
UNION OF INDIA[DIPAK MISRA, J.]
32. In Nikhil Himthani (supra), the Court was dealing A
with the grievance that related to equality in the matter of
admissions to post-graduate medical course in the medical
college in the State of Uttarakahand guaranteed by Article 14
of the Constitution which was violated by the respondents. After
noting the contentions of the learned counsel for the parties, B
the Court referred to the Constitution Bench judgment in
Saurabh Chaudri (supra) and the pronouncements in
Jagadish Saran (supra) and Dr. Pradeep Jain (supra) and
came to hold thus:-
"We now come to Clauses 2 and 3 of the eligibility criteria C
in the Information Bulletin. Under Clauses 2 and 3, a
domicile of Uttarakhand who has passed MBBS from a
medical college of some other State having been
admitted either through the 15% all-India quota or through
the pre-medical test conducted by the State Government D
concerned has been made eligible for admission to a
postgraduate medical course in the State quota.
Obviously, a candidate who is not a domicile of
Uttarakhand State is not eligible for admission to the
postgraduate course under. Clauses 2 and 3 of the E
eligibility criteria. Preference, therefore is given only on
the basis of residence or domicile in the State of
Uttarakhand under Clauses 2 and 3 of the eligibility
criteria and such preference on the basis of residence
or domicile within a State has been held to be· violative F
of Article 14 of the Constitution in Pradeep Jain v. Union
of India and Magan Mehrotra v. Union of India.
33. In Vishal Goel (supra), the two-Judge Bench
reiterated the principle laid down in Nikhi/ Himthani (supra). G
34. At this juncture, we may also refer to the Constitution
Bench decision in Faculty Association ofAll India Institute
of Medical Sciences v. Union oflndia 26 • In the said case
" (2013) 11 sec 246
H
370 SUPREME COURT REPORTS [2015] 14 S.C.R.
A issue arose about the applicability of reservation in respect of
speciality and super speciality faculty posts in all-India Institute.
of Medical Sciences. The matter was referred to a larger
Bench by the three-Judge Bench in view of the decisions
rendered in Jagadish Saran (supra), Dr. PradeepJain (supra)
B and Indra Sawhney v. Union of lndia27 • The Constitution
Bench after noting various contentions ruled that:-
"22.Although the matter has been argued at some length,
the main issue raised regarding reservation at the
superspeciality level has already been considered in
c .Indra Sawhney case by a nine-Judge Bench of this Court.
Having regard to such decision, we are not inclined to
take any view other than the view expressed by the nine-
Judge Bench on the issue. Apart from the decisions
rendered by this Court in Jagadish Saran case and
D Pradeep Jain case, the issue also fell for consideration
in Preeti Srivastava case which was also decided by a
Bench of five Judges. While in Jagadish Saran case and
in Pradeep Jain case it was categorically held that there
could be no compromise with merit at the superspeciality
E stage, the same sentiments were also. expressed in
Preeti Srivastava case as well.
23. In Preeti Srivastava case, the Constitution Bench had
an occasion to consider Regulation 27 of the Post
Graduate Institute of Medical Education and Research,
F
Chandigarh Regulations, 1967, whereby 20% of seats
in every course of study in the institute was to be reserved
for candidates belonging to the Scheduled Castes,
Scheduled Tribes or other categories of persons, in
accordance with the general rules of the Central
G
Government promulgated from time to time. The
Constitution Bench came to the conclusion that
Regulation 27 could not have any application at the
highest level of superspeciality as this would defeat the
H 21
(1992) Supp (3) 217
DR. SANDEEP S/O SADASHIVRAO KAN$URKAR v. 371
UNION OF INDIA[DIPAK MISRA, J.]
very object of imparting the best possible training to A
selected meritorious candidates, who could contribute
to the advancement of knowledge in the field of medical
research and its applications. Their Lordships ultimately
went on to hold that there could not be any type of
relaxation at the superspeciality level." B
35. Be it noted, the Court laid immense emphasis on
paragraph 836 of Indra Sawhney (supra) wherein the nine-
Judge Bench has observed:-
"... that there were certain services and posts where either c
on account of the nature of duties attached to them or
the level in the hierarchy at which they stood, merit alone
counts. In such situations, it cannot be advised to provide
for reservations. In the paragraph following, the position
was made even more clear when Their Lordships 0
observed that they were of the opinion that in certain
services in respect of certain posts, application of rule
of reservation may not be advisable in regard to various
technical posts including posts in superspeciality in
medicine, engineering and other scientific and technical E
posts."
36. Thereafter, the Court proceeded to state further:-
''We cannot take a different view, even though it has been
suggested that such an observation was not binding,
being obiter in nature. We cannot ascribe to such a view F ·
since the very concept of reservation implies mediocrity
and we will have to take note of the caution indicated in
.·Indra Sawhney case. While reiterating the views
expressed by the nine-Judge Bench in Indra Sawhney
case, we dispose of the two civil appeals in the light of G
the said views, which were also expressed in Jagadish
Saran case, Pradeep Jain case, Preeti Srivastava
case. We impress upon the Central and State
Governments to take appropriate steps in accordance
H
372 SUPREME COURT REPORTS [2015] 14S.C.R.
A with the views expressed in Indra Sawhney case and in
this case, as also the other decisions referred to above,
keeping in mind the provisions of Article 335 of the
Constitution."
37. We have referred to the aforesaid judgments in
B extenso as learned counsel appearing for the petitioners have
laid immense emphasis that there cannot be reservation of
any kind in respect of post-graduate or super speciality courses
regard being had to the law laid down by many a judgment of
this Court. It is urged that the State of Andhra Pradesh and
C 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. We have already analysed the factual
score and the legal position. The undivided State of Andhra
Pradesh enjoys a special privilege granted to it under Article
D 371-D of the Constitution and the Presidential Order. The
judgments of the larger Bench do not refer to the said Article
nor do they refer to the Presidential Order, for the said issue
did not arise in the said cases. A scheme has been laid down
in the case of Dr. Pradeep Jain (supra) and the concept of
E percentage had undergone certain changes. In Reita
Nirankari (supra), the same three-Judge Bench clarified the
position which we have already reproduced hereinbefore.
However, in ·c. Surekha (supra), the Court had expressed its
view about the amendment of the Presidentiai Order regard
F being had to the passage of time and the advancement in the
State of Andhra Pradesh. It nas been vehemently urged by Mr.
Marlapalle that despite 27 years having been elapsed, the
situation remains the same. We take note of the said
submission and we are also inclined to echo the observation
G that was made in the case of Fazal Ghafoor(supra) wherein
it has been stated thus:-
"ln Dr Pradeep Jain case this Court has observed that in
Super Specialities there should really be no reservation.
This is so in the general interest of the country and for
H
DR. SANDEEP S/O SADASHIVRAO KANSURKAR v. 373
UNION OF INDIA[DIPAK MISRA, J.]
improving the standard of higher education and thereby A
improving the quality of available medical services to the
people of India. We hope and trust that the Government
of India and the State Governments shall seriously
consider this aspect of the matter without delay and
appropriate guidelines shall be evolved by the Indian ·s
Medical Council so as to keep the Super Specialities in
medical education unreserved, open and free."
38. The fond hope has remained in the sphere of hope
though there has been a progressive change. The said
privilege remains unchanged, as if to compete with eternity. C
Therefore, we echo the same feeling and reiterate the
aspirations of others so that authorities can objectively assess
and approach the situation so that the national interest can
become paramount. We do not intend to add anything in this
rega~. D
39. Consequently, the writ petition as far as it pertains to
the State of Andhra Pradesh and Telangana, is dismissed. As
regards State of Tamil Nadu, the matter be listed on November
4, 2015 for hearing.
E
Bibhuti Bhushan Bose Petition pertaining to Slate of Andhra
Pradesh and Telangana dismissed.
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