Ranganath Misra, J. - (1.) Petitioner who passed the MBBS examination in December, 1986, from the Osmania University in Andhra Pradesh and intended to take the All India Competitive entrance examination for admission to PG Medical courses in 1988, by this application under Article 32 of the Constitution challenges the vires of Article 371-D(2)(b)(iii) and (c)(ii) of the Constitution as also the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974 as a consequence of which the students of Andhra Pradesh have been excluded from competing in the aforesaid examination.
(2.) This Court by the scheme framed pursuant to its decision in the case of Dr. Pradeep Jain v. Union of India, (1984) 3 SCC 654 directed that 25 per cent of the Post Graduate Seats available in the medical colleges would be reserved to be filled up by an All India Selection Test to be conducted by All India Institute of Medical Sciences, New Delhi. The Court further directed:- "The decisions reached by us in these writ petitions will bind the Union of India, the State Governments and Administrations of Union Territories because it lays down the law for the entire country and moreover we have reached this decision after giving notice to the Union of India and all the State Governments and Union Territories." By a subsequent order in the case of Reita Nirankari v. Union of India, (1984) 3 SCC 706 this Court indicated:- "We may make it clear that the judgment will not apply to the States of Andhra Pradesh and Jammu and Kashmir 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." The notice issued for the holding of the All India Competitive Entrance examination in 1988 stated:- "The Scheme for selection of candidates for admission to post-graduate medical courses against open seats on All India basis shall be applicable to all medical colleges/institutions throughout the country and no medical college/ institution shall hereinafter conduct competitive entrance examination of its own for the open seats on All India basis, except those excepted by the Supreme Court. The States of Jammu and Kashmir and Andhra Pradesh have been excluded by the Supreme Court from the purview of their judgment in this regard. Therefore the students having passed their MBBS examination from an institution in these States shall not be eligible to participate in the All India Competitive Entrance Examination for selection of candidates against open seats." Clause 7(d) dealing with the eligibility again reiterated:- "As specified earlier, candidates who have done MBBS from any of the institutions in the States of Andhra Pradesh and Jammu and Kashmir are not eligible." The petitioner has, therefore, asked for a declaration that the exclusion of students of Andhra Pradesh from eligibility to participate as per clause 7(d) of the prospectus should be declared illegal and the All India Institute of Medical Sciences, respondent No. 6, should be directed to receive applications from students of Andhra Pradesh otherwise qualified to take the examination. The petitioner has also asked for a declaration that Article 371-D(2)(b)(iii) and (c)(ii) of the Constitution and the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974, issued by the President in exercise of powers conferred under clauses 1 and 2 of the constitutional special provision are ultra vires of the basic structure of the Constitution of India. The petitioner has added a list under Annexure 'A' of persons similarly situated to whom relief is available but she has also specifically confined the petition to herself by saying:- "This petition is being moved on behalf of Dr. C. Surekha."
(3.) The Union of India, respondent No. 1, and the State of Andhra Pradesh have filed counter affidavits. In the return made by the Union of India it has been stated:- "I deny the contents of para 1 of the writ petition and further submit that the contention of the petitioner that Article 371 (D) (2) (b) (iii) and (c) (ii) of the Constitution of India and the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974 have prevented the medical students of Andhra Pradesh from competing in the All India Competitive Entrance Examination conducted by the All India Institute of Medical Sciences for admission to Post Graduate Medical Course (MD/MS/ Diploma) and Dental Courses on open merit for 1988 is not correct. The scheme of reservation in favour of local candidates as embodied in the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974, is applicable only to available seats in relation to any course of study. According to paragraph 2(1)(a) of the said Order, the expression available seats in relation to any course of study means the number of seats provided in that course for admission at any time after excluding those reserved for candidates from outside the State. It is therefore for the Government of Andhra Pradesh to consider reservation of seats to be filled on the basis of the All India Competitive Entrance Examination for admission to the courses in question." The State in its affidavit has taken the stand that it is governed by the special provision contained in the Constitution of India under Article 371-D and, therefore, this Court had in its order dated 26th July, 1984 in Reita Nirankari's case (supra) excluded the application of the Scheme in Dr. Pradeep Jain's case (supra) to Andhra Pradesh. An additional affidavit was filed on behalf of the State of Andhra Pradesh where it was pleaded that in the Presidential Order of 1974 available seats in relation to any course of study mean the number of seats provided in that course for admission at any time after excluding those reserved for candidates from outside the State. The intention, according to the contention, was to make provision for admission of candidates sponsored by the Government of India and not a wholesale reservation of seats for candidates coming from outside the State. It was pointed out that in 1974, 8 seats were reserved for admission of nominees of the Government of India though this had been increased subsequently, to 12. According to the State's contention if a good number of seats are excluded from the purview of local candidates and if admission of more number of candidates is resorted to through the All India Entrace Test, there is likely to be an agitation and discontentment from the local candidates since the number of available seats to local candidates would be reduced.;