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Judgment
1.Admission to technical and professional courses is strictly in accordance with merit, subject to permissible protective discrimination provided under the Constitution in favour of certain categories of citizens, is a constitutional creed which flows from the provisions of Articles 14 and 15 of the Constitution of India and the law declared by the Supreme Court in Unnikrishnan P.J. and Others Vs. State of A.P. and Others, (hereinftfter referred to as ''Unnikrishnan case''). The only question which arises for consideration in this writ petition is whether the respondent-University has adhered to this Constitutional creed and the law laid down by the Supreme Court in Unnikrishnan case. This question arises in the back-drop of the facts following :
The petitioner with an intention to seek admission to MBBS and BDS degree courses appeared for the entrance test conducted in that regard in the year 1994-95 and in that test she secured 796th rank. At this stage Itself it may be noted that no candidate having lower ranking than the petitioner is given admission to MBBS degree course in open category. Therefore the petitioner has no grievance as regards the admission to MBBS course is concerned. The petitioner''s alternative option was to join the BDS course. Under the regulations the 1st respondent University issued a notification on 23-7-1994 calling upon the candidates, including the petitioner, to appear for interview fixed on 10-10-1994. The petitioner could not attend to that interview because, according to her, she was seriously ill and bed-ridden. After recovery from her illness the petitioner on 15-10-1994 made a representation to the 1st respondent-University enclosing thereto the medical certificate and appraising the latter that she could not attend the interview conducted on 10-10-1994 on account of ill-health and requesting the university authorities to consider her candidature for admission to the B.D.S. degree course if there is any existing vacancy or against any future vacancy that might arise.
There is no dispute between the parties that after 15-10-1994 a vacancy arose in the Sri Vcnkateswara University area. Therefore the University on 26-11-1994 issued a notification which was published in the issue dated 29-11-1994 of Eenadu, a Telugu daily. The said notification reads thus :
"University of Health Sciences, Andhra Pradesh Vijayawada
NOTIFICATION
The 2nd selections (open method) for the following resultant vacancies for admission into 1st BDS course for the academic year 1994-95 will be held on 7-12-1994 from 10.00 AM onwards at University of Health Sciences Office, Vijayawada. Candidates who have already applied for B.D.S. within the range of ranks given hereunder arc advised to attend the selections with all their original certificates and EAMCET-94 Original Hall Ticket, Rank Card and Identification card. Individual intimations are not being sent. The selected candidates have to pay an amount of about Rs. 5,300/- (Rs. Five Thousand Three Hundred only) towards fee on the day of selection. Candidates claiming reservation must produce relevant caste certificates issued by Mandal Revenue Officer.
As large number of candidates are being called for provisional selections, it shall be noted that selection is subject to availability of seat at their turn and seat is not guaranteed.
Area Category No. of Vacancies Ranks from To
O. U. OC 4 From rank No. 653 to 701 of O. U. &
A. U. OC 1 A. U. including Non-locals.
Un-reserved OC 1
S. V. U. OC 1 890 to 914 of S. V. U. Only
O. U. BC-B 1 1502 to 1624 of O. U. Region Only
O. U. BC-D 1 1482 to 1555 of O. U. only
S. V. U. SC 1 7087 to 7153 of S. V. U. area only.
T. A. and D. A. will not be paid for attending the selections.
Place: Vijayawada Date : 26-11-1994
Registrar.
Endt. No. 6181/BDS/EAI.Dt. 26-11-94.
As could be seen from the notification the University called for interview only those candidates having ranks from 890 to 914 who sought admission in open category in Sri Venkateswara University area. Obviously the petitioner was not called for interview. At this stage the petitioner moved this Court by way of this writ petition. This Court on 5-12-1994 in W.P.M.P. No. 26333 of 1994 made an interim order directing the petitioner to appear for the interview fixed by the University on 7-12-1994. Accordingly the petitioner is stated to have appeared for the interview on that day along with the other candidates. However, by virtue of an undertaking given by the learned standing counsel for the 1st respondent-University before this Court on 16-12-1994 that the University will not publish the result of the petitioner till further orders, it is stated at the Bar that the candidature of the petitioner was not considered for admission in the interview held by the University on 7-12-1994. On the other hand the University selected one Kum R. Srujane for admission to the BDS course in Sri Venkateswara University area.
In the writ petition the petitioner has sought for a declaration that the action of the respondent-University in refusing to consider the candidature of the petitioner for admission to the B.D.S. degree course against the vacancy which arose is illegal, arbitrary and unreasonable and violative of principles of naturaljustice. Incidentally the petitioner has also called in question the validity of sub-rules (7) and (8) of Rule 11 of the Rules contained in the prospectus issued to the petitioner and the others similarly circumstances. Further the petitioner has sought for a consequential direction to the respondent-University to admit her into any one of the respondent-Dental Colleges.
Heard Sri M.R.K. Choudary, learned counsel for the petitioner, Sri S. Rama-moorthy Reddy, learned standing counsel for the University of Health Sciences and Sri T. Niranjan Reddy, learned counsel for the impleaded 6th respondent.
Sri M.R.K. Chowdary, learned counsel for the petitioner, assailed the action of the University by contending that the action of the respondent-University in refusing admission to the petitioner was quite contrary to the spirit and content of Rules 3(1), 7(6) and 7(7) of the A. P. Professional Educational Institutions (Regulation of Admission into Under-Graduate Professional Courses through Common Entrance Test) Rules, 1993 (for short the ''Rules'') and he pointed out that what emerges from reading of these Rules is that merit is the basic criteria to admit students to the technical and professional courses like the one in question. Secondly Sri M.R.K. Chowdary contended that the respondent-University purports to have refused admission to the petitioner placing reliance on sub-rules (7) and (8) of Rule 11 of the Rules contained in the prospectus. The learned counsel maintained that sub-rules (7) and (8) of Rule 11 of the prospectus, rule on the face of it quite contrary to the statutory ruies and therefore the prospectus rules are ultra vires of the Rules. Lastly, Sri Choudary contended that at any rate the action of the 1st respondent-University was totally unreasonable, arbitrary and violative of Articles 14 and 15(1)(2) of the Constitution as well as the law laid down by the Supreme Court in Unnikrishnan P.J. and Others Vs. State of A.P. and Others, . On the other hand the learned standing counsel for the University after taking the Court through the provisions of Rules 3(1), 4(c), 7(3), (4), (6), (7) and (13) of the Rules contended that possessing relatively a higher ranking in the entrance test would not automatically entitle a candidate to seek admission into the professional courses and the candidates beside possessing for relatively higher ranking should also fulfil other conditions and the terms prescribed by the University. The learned standing counsel argued that the University had laid down the clear instructions in the prospectus itself and the petitioner with full understanding of the rules contained in the prospectus had applied for admission and therefore she was required to adhere to those rules and it is not permissible for her to complain now having failed to appear for the interview on 10-10-1994. The learned counsel appearing for the impleaded 6th respondent would support the contentions put forth by the learned standing counsel for the University and.appealed to the Court not to interfere with the impugned action of the University, by applying equity.
The rules are framed by the Governor of Andhra Pradesh by virtue of the power conferred upon him u/ S. 3 read with Section 15 of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (Act No. 5 of 1983) and in supersession of the Andhra Pradesh Professional Educational Institutions (Regulation of admission into Under-Graduate Professional Courses through Common Entrance Test) Rules, 1989. Rules 3(1) and .7(6) and (7) and other provisions of the regulations make one thing quite clear that admission to the professional courses should be strictly in accordance with merit. The rules contained in the prospectus are not statutory rules. They are only administrative instructions. Therefore it is. needless to state that the administrative instructions issued by the University should not impair or affect in any way the statutory rules. The question is whether sub-rules (7) and (8) of Rule 11 of the prospectus rules do offend the rules. Rule 11 of the prospectus rules reads thus:
"11. Guidelines for Open Method of Selection for Admissions into B.D.S. Course: -
The selections for B.D.S. Course shall be made at U.H.S. Office, Vijayawada on 10-10-1994 from 10.00 a.m. onwards.
All the qualified candidates at the EA MCET-94 who have applied for B.D.S. may attend the selections.
The candidates at the time of selections will choose the college of their choice on the spot taking into consideration the vacancy positron at his/her turn.
The selected candidate shall submit all the original certificates and shall pay fee on the spot on the day of selections, failing which the selection of the candidate is deemed to have been cancelled.
If the candidates from SC/ST/BC categories are not available, the seats shall be reallotted to the candidates under OC on the day of each selection.
T.A. and D.A. will not be paid to the candidates for attending the selections.
Candidates absented at their turn for selections shall not be considered for subsequent selection thereafter.
Resultant vacancies will be. open to all the candidates from the rank of last selected candidate in earlier selection in the respective categories,
The seat is not guarantee."
At could be seen from Rule 11, sub-rule (7) provides that candidates absented at their turn for selections shall not be considered for subsequent selection thereafter; whereas sub-rule (8) provides that the resultant vacancies will be open to all the candidates from the rank of last selected candidate in earlier selection in the respective categories. The provisions of these two rules are capable of being interpreted and understood in consonance with the spirit and content of the rules. If it is permissible for the Court to interpret these two sub-rules in consonance with the rules, the statute law and the Constitutional law, such a course should be adopted by the Court without striking it down. I find that such a course is permissible in this case. Th9se two sub-rules should be understood and read down to mean that a candidate who absenled at his turn for selection on a previous vocation without any justification shall not be considered for subsequent selection thereafter. The facts of the case are stated above. When the University was proceeded to fill up the vacancy, which arose after 10-10-1994, by issuing a notifica-tion on 26-11-1994, by that time the Univer-sity had the representation of the petitioner dated 15-10-1994. The candidature of the petitioner was refused to be considered solely on the ground that she was given an opportunity to appear for the interview on 10-10-1994 and she did not avail the same. There is no dispute that in the notification issued on 26-11-1994 all the candidates who were directed to appear for the interview fixed on 7-12-1994 had lower ranks than the petitioner. The object of sub-rules (7) and (8) of Rule 11 of the prospectus rules is to see that the settled matters should not be permitted to be unsettled at the instance of the candidate, though relatively more meritorious, at a belated stage and after admissions are over. The Court would have appreciated the stand of the University if vacancy arose before 15-10-1994 and that vacancy was filled up before 15-19-1994, the date on which, the petitioner made the representation. Therefore, by denying admission to the petitioner, the University would not achieve any object and its action tends to cause injury to the public, intent. The Supreme Court in Unnikrishnan P.J. and Others Vs. State of A.P. and Others, , in great elaboratly, dealt With the necessity of following the rule of merit while admitting, the students to the professional and technical courses-and the social objectives behind the Rule of merit Of course, the said rule is subject to the protective discrimination that may be made in favour of certain categories of citizens as provided under the Constitution. Except to such limitation, the rule of merit is required to be followed by all the public authorities in the matter of admitting students to professional and technical courses. That object is not achieved by the action of the University. Even otherwise the action of the University cannot be termed as reasonable or proper. The action of the University, is tainted with irrationality.
In view of the interim orders passed by this Court one seat is kept vacant in the degree course leading to B.D.S. The learned standing counsel for the University at the time of hearing submitted that, that seat is still available.
In the result and for the foregoing reasons the writ petition is allowed and a Writ of Mandamus shall issue to the 1st respondent University to admit the petitioner to the B.D.S. course in any one of the respondent-colleges forthwith. In the circumstances of the case the parties are directed to bear their own costs.
Petition allowed.