IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON’BLE Mr. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE

&

HON’BLE Mr. JUSTICE M. SATYANARAYANA MURTHY

Writ Petition No.30946 of 2021

and

Writ Petition No.1420 of 2022

(through Video Conferencing)

Writ Petition No.30946 of 2021

Dr. Sireesha Simhadri, W/o. S. Venkat Krishna Kishore,

Aged about 40 years, Occ: Doctor, R/o. Flat No.203,

Siddhartha Residency, HUDA Colony Road, Chanda

Nagar, Hyderabad, and another … Petitioners

Versus

The State of Andhra Pradesh, rep. by its Principal

Secretary, Department of Health, Medical & Family

Welfare, Secretariat Buildings, Velagapudi, Guntur

District, Andhra Pradesh, and others … Respondents

Counsel for the petitioners : Mr. M.R.K. Chakravarthy

Counsel for respondent No.1 : Mr. S. Appadhara Reddy, G.P for

Health, Medical and Family

Welfare

Counsel for respondent No.4 : Mr. G. Vijaya Kumar, Standing

Counsel

Writ Petition No.1420 of 2022

Dr. Bathineni Sreeharsha, S/o. Sri Narayana Rao,

Aged about 33 years, Occ: Medical Officer (Tribal)

(Dammapeta), R/o.H.No.1-337/1, Banjara Colony,

Madhira, Khammam District, Telangana, and others … Petitioners

Versus

Union of India, rep. by its Secretary, Ministry of

Law and Justice, 4

th

Floor, A-Wing, Shashtri Bhawan,

New Delhi – 110 001, and others … Respondents

Counsel for the petitioners : Mr. P. Thirumala Rao

Counsel for respondent No.2 : Mr. S. Appadhara Reddy, G.P for

Health, Medical and Family

Welfare

Counsel for respondent No.4 :Mr. G. Vijaya Kumar, Standing

Counsel

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Date of hearing : 27.01.2022

Date of order : 01.02.2022

COMMON ORDER

(Prashant Kumar Mishra, CJ)

In W.P.No.30946 of 2021, the petitioners, two in number,

have prayed for issuance of a Writ of Mandamus declaring the

action of the respondents in issuing G.O.Ms.No.703, Health,

Medical and Family Welfare Department (C1) dated 13.12.2021, so

far as it relates to denial of opportunity to the qualified in-service

local candidates/Doctors (Petitioners) who served in Government

Health Institutions in Andhra Pradesh and Telangana State while

reserving 50% of the seats in the State Government quota, 30% of

clinical and 50% of non-clinical seats exclusively to the service

candidates serving in Government Health Institutions in the State

of Andhra Pradesh alone. Challenge is also drawn, in this Writ

Petition, to Notification No.1236/EA2/PG/2021 dated 23.12.2021

issued by the 4

th

respondent-Dr. NTR University of Health

Sciences, as illegal, arbitrary, discriminatory and violative of

Articles 14, 16, 19 and 21 of the Constitution of India and Section

95 of the Andhra Pradesh Reorganisation Act, 2014 (for short, “the

2014 Act”) and the Andhra Pradesh Educational Institutions

(Regulation of Admissions) Order 1974 and to set aside the same to

the extent indicated and consequently direct the respondents to

implement the reservation for the qualified local in-service

candidates/Doctors (Petitioners) in the matter of admissions to

Post Graduate Medical Courses for the academic year 2021-22 as

per the Andhra Pradesh Educational Institutions (Regulation of

Admissions) Order 1974 and the Rules framed thereunder, by

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considering their services rendered in Government Health

Institutions in Andhra Pradesh and Telangana State.

2. In W.P.No.1420 of 2022, the petitioners five in number, have

prayed for declaring the action of the 2

nd

respondent-State in

amending Sub-Rule (2) of Rule 3 of the Andhra Pradesh Medical

Colleges (Admission into Postgraduate Medical Courses) Rules,

1997 issued vide G.O.Ms.No.150 dated 11.12.2021 to the extent of

altering the eligibility criteria for in-service candidates and thus

excluding the petitioners and depriving them of an equal

opportunity of availing a seat in Post Graduate Medical Courses for

the academic year 2021-2022 in the State of Andhra Pradesh, as

illegal, arbitrary, discriminatory and violative of Articles 14, 16, 19

and 21 of the Constitution of India and in contravention of Section

95 of the 2014 Act and the Andhra Pradesh Educational

Institutions (Regulation of Admissions) Order 1974. Prayer has

also been made for declaring the prospectus notification vide

No.1236/EA2/PG/2021 dated 23.12.2021, issued by the 4

th

respondent-Dr.NTR University of Health Sciences, in consequence

to the impugned G.O.Ms.No.150 dated 11.12.2021, as illegal,

without jurisdiction and consequently quash the said G.O., as also

the prospectus notification vide No.1236/EA2/PG/2021 dated

23.12.2021, issued by the 4

th

respondent-Dr. NTR University of

Health Sciences, to the extent of altering the eligibility criteria for

in-service candidates so as to exclude the in-service candidates

serving in the State of Telangana and consequently direct

respondent Nos.2 and 4 to implement the in-service quota

reservation for the petitioners (as non-local in-service candidate) in

the matter of admission to Post Graduate Medical Degree Courses

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for the academic year 2021-22 as per the Andhra Pradesh

Educational Institutions (Regulation of Admissions) Order 1974

and all other allied State Government instructions framed in

consonance with Article 371-D of the Constitution of India and in

terms of Section 95 of the 2014 Act.

3. To appreciate the eligibility of the petitioners vis-à-vis the

Andhra Pradesh Public Employment (Organisation of Local Cadres

and Regulation of Direct Recruitment) Order, 1975 (for short, “the

Presidential Order”) and under Section 95 of the 2014 Act, it would

be necessary to refer to the University from where they have

passed their qualifying examination and the services rendered by

them either in the State of Telangana or in the State of Andhra

Pradesh, as the case may be.

W.P.No.30946 of 2021

Petitioner

No.1

University from where MBBS

passed

Service rendered

Guntur Medical College APIMS Dispensary,

Sanath nagar,

Hyderabad

(04.04.2013 to

03.04.2016)

ESI Dispensary,

Bolarum, Hyderabad

(04.04.2016 to

05.10.2018)

ESI Dispensary,

Jaggayyapeta (from

2018 till today)

Petitioner

No.2

Maharaja Institute of Medical

Sciences

ESI Dispensary,

Rezimental Bazar,

Hyderabad

(29.05.2013 to

05.10.2014)

Remained in leave

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from 06.10.2014 to

24.01.2016

ESI Dispensary,

Balanagar,

Mahabubnagar,

Telanana State (from

25.01.2016

onwards)

W.P.No.1420 of 2022

All the five petitioners in this Writ Petition are claiming the

benefit of in-service candidates in the State of Andhra Pradesh on

the strength of Section 95 of the Act of 2014 and they appear to be

serving in the State of Telangana. There is no averment or

document as to their local area. However, since they are claiming

entitlement as non-local in-service candidates for admission to

Post Graduate Medical Courses in the State of Andhra Pradesh, it

seems they have not passed their qualifying examination, i.e.

MBBS course from any local area, i.e. University located within the

State of Andhra Pradesh. Be that as it may, since their prayer for

treating them as in-service candidates is based on the legal effect

of Section 95 of the 2014 Act, the same is considered in this

common order.

4. Heard learned counsel for the parties and considered the

material on record.

5. It is contended by the learned counsel for the petitioners that

Section 95 of the 2014 Act mandates that in order to ensure equal

opportunities for quality higher education to all students in the

successor States, the existing admission quotas in all government

or private, aided or unaided, institutions of higher, technical and

medical education insofar as it is provided under article 371D of

the Constitution, shall continue as such for a period of ten years

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during which the existing common admission process shall

continue. Therefore, ten years’ period being available upto 2024,

the petitioners are entitled to be considered for admission in Post

Graduate Medical Courses as in-service candidates in the State of

Telangana as well as in the State of Andhra Pradesh. According to

them, the special reservation for the candidates belonging to the

State of Andhra Pradesh alone vide the impugned amendment, vide

G.O.Ms.No.703 dated 13.12.2021 is illegal, being in violation of

Section 95 of the 2014 Act. It is also argued that the amendment

is made to manipulate the admission process and oust the

candidates like the petitioners who have either completed their

studies in the State of Andhra Pradesh or serving in the State of

Andhra Pradesh and/or the State of Telangana; such candidates

who worked in the State of Telangana were considered up to the

last academic year, therefore, the departure from common

admission process has no sanction in law and they cannot be

denied admission on the ground that they have not completed 7

years continuous service in the Government Health Institutions in

the State of Andhra Pradesh.

6. According to the petitioners, they have been in continuous

regular service in terms of the mandate stipulated under the

Andhra Pradesh Educational Institutions (Regulation of

Admissions) Order 1974 and all other allied State Government

instructions framed in consonance with Article 371-D of the

Constitution of India and in terms of Section 95 of the 2014 Act.

Therefore, the petitioners in W.P.No.1420 of 2022 are eligible to be

considered as non-local candidates against 15% unreserved seats

for in-service candidates in the matter of admission to Post

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Graduate Medical Courses. However, by issuing impugned

G.O.Ms.No.150 dated 11.12.2021, the State of Andhra Pradesh has

altered the eligibility criteria in violation of the Presidential Order

issued under Article 371-D of the Constitution of India.

7. Per contra, the learned Government Pleader for Medical,

Health & Family Welfare has argued that after completion of

specialization course, the in-service candidates are required to be

available to serve in Government facilities in the same area

(Tribal/Rural/Continuous regular service) from where the

reservation was sought, to a minimum of five years subject to the

availability of vacancies in respective specialities through a bond.

The penalty of indemnity bond shall be Rs.15 lakhs per year for

non-rendering services after completion of such course for

in-service candidates. The Government of Andhra Pradesh is

having no administrative control over the in-service candidates of

Telangana State and in case they discontinue the course in the

middle, penalty of indemnity bond would not be collected by the

Government of Andhra Pradesh. According to the learned

Government Pleader, after bifurcation of the State, Doctors who

were working in the unified State were allocated to the State of

Telangana or the State of Andhra Pradesh as per the norms issued

by the Government of India; therefore, the petitioners, having been

allocated and serving in the State of Telangana, are not entitled to

be considered as in-service candidates in the State of Andhra

Pradesh. Referring to an order dated 24.08.2017 passed in WPMP

No.33741 of 2017 & batch by a Division Bench of the High Court

of Judicature at Hyderabad for the State of Telangana and the

State of Andhra Pradesh, it is argued that law is settled that

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Presidential Order issued under Article 371-D of the Constitution

of India is not applicable to Post Graduate Medical Courses and

Super speciality Courses. While submitting that the petitioners

are also claiming to be in-service candidates in the State of

Telangana, therefore, they are not entitled to be considered as

in-service candidates for both the States, learned Government

Pleader has prayed for dismissal of both the writ petitions.

8. Before proceeding to discuss the arguments advanced by

the learned counsel for the parties, it would be necessary to refer

to some of the provisions including different G.Os. issued by the

Government of Andhra Pradesh from time to time.

9. The Government of Andhra Pradesh, in exercise of powers

under the Andhra Pradesh Educational Institutions (Regulation of

Admission and Prohibition of Capitation Fee) Act, 1983 (for short,

“the 1983 Act”), has framed Rules known as the Andhra Pradesh

Medical Colleges (Admission into Post Graduate Medical Courses)

Rules, 1997 (for short, “the 1997 Rules”). Sub-rule (2) of Rule 3

thereof provides that 15% of seats in clinical subjects, i.e. in

Medicine Surgery, Obstetrics & Gynaecology Groups and 30% of

the seats in non-clinical subjects in each group for Degree and

Diploma Courses separately are reserved for in-service candidates

in each category under in-service quota. It further provides for

rendering of particular years of regular service, which presently

stands at 7 years continuous regular service. The expression

“Continuous regular service” has been defined under clause (c) of

sub-rule (2) of Rule 3, to mean regular service in Andhra Pradesh

in the following services, namely:-

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(a) Andhra Pradesh Medical & Health Services;

(b) Andhra Pradesh Insurance Medical Services;

(c) Andhra Pradesh Vaidya Vidhana Parishad; or

(d) University of Health sciences.

10. Rule 4 of the 1977 Rules provides for reservation in favour of

local candidates. According to this Rule, admission to 85% of the

seats shall be reserved in favour of the local candidates in relation

to the local area as provided in Andhra Pradesh Educational

Institutions (Regulation of Admission) Order, 1974. What would be

the local area for the purposes of the Rules has been provided in

clause (B) of sub-rule (1) of Rule 4, which reads as under:

“B) LOCAL AREA:

(i) The part of the State Comprising the Districts of

Srikakulam, Vizianagaram, Visakhapatnam,

East Godavari, West Godavari, Krishna, Guntur

and Prakasam (Andhra University and

Nagarjuna University area) shall be regarded as

the local area for the purposes of admission to

the Andhra Medical College, Visakhapatnam,

Rangaraya Medical College, Kakinada and

Guntur Medical College, Guntur.

(ii) The part of the State comprising the Districts of

Adilabad, Hyderabad including cities of

Hyderabad and Secunderabad, Ranga Reddy,

Karimnagar, Khammam, Medak,

Mahaboobnagar, Nalgonda, Nizamabad and

Warangal (Osmania University and Kakatiya

University area) shall be regarded as local area

for the purpose of admission to the Osmania

Medical College, Hyderabad, Gandhi Medical

College, Hyderabad and Kakatiya Medical

College, Warangal.

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(iii) The part of the State comprising the Districts of

Ananthapur, Kurnool, Chittoor, Cuddapah and

Nellore, i.e., Sri Venkateswara University area

shall be regarded as local area for the purpose of

admission to the Kurnool Medical College,

Kurnool and Sri Venkateswara Medical College,

Tirupathi.”

11. Similarly, provision for local candidates has been made

under clause (C) of sub-rule (1) of Rule 4, which reads as under:

(C) LOCAL CANDIDATES

(I) A candidate for admission shall be regarded as

local candidate in relation to a local area:-

(i) If the candidate studies in an Educational

Institution or Educational Institutions in such

local area for a period of not less than four

consecutive academic years ending with the

academic year in which the candidate appeared

or as the case may be first appeared in the

relevant qualifying examination.

or

(ii) Where during the whole or any part of the four

consecutive academic years ending with the academic

year in which the candidate appeared or as the case

may be first appeared

For the relevant qualifying examination the candidate

has not studied in educational institutions, if the

candidate had resided in that local area for a period of

not less than four years immediately preceding the

date of commencement of the relevant qualifying

examination, in which the candidate appeared or as

the case may be first appeared.”

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12. The procedure for admission to any course of study to a

candidate, who is not regarded as a local candidate under sub-rule

(I) above, has been made in sub-rule (II) of clause (C) of sub-rule (1)

of Rule 4.

13. Clause (E) of sub-rule (1) of Rule 4 provides that 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 respect of that

local area, such seats shall be filled in as if it had not been

reserved.

14. The eligibility for admission to the remaining 15% of

un-reserved seats has been provided under clause (G) of sub-rule

(1) of Rule 4, which reads as under:

“(G) The following categories are eligible to apply for

admission to the remaining 15% of un-reserved seats.

(i) All candidates defined under sub-rule (C) of

rule-4.

(ii) Candidates who have resided in the State for

total period of ten years excluding the period of

study outside the State or either of those

parents have resided in the State for a total

period of ten years excluding the period of

employment outside the State.

(iii) Candidates who are children of parents who are

in the employment of the State or Central

Government, Public Sector Corporations, Local

bodies, Universities and other similar quasi –

Public Institutions in the State.

(iv) Candidates, who are spouses of those in

employment of the State or Central Government,

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Public Sector Corporations, Local Bodies,

Universities and Educational Institutions

recognized by the Government or a University or

other competent authority and similar other

quasi Government institutions within the State.

(v) Candidates, who are employed in the State

Government undertakings, Public Sector,

Corporations, local bodies, Universities and

other similar quasi-public institutions within the

State.

(vi) Candidates who are spouses of the local

candidates as per rule-4(C).”

15. Vide G.O.P.No.646 dated 10.07.1979, the Government of

Andhra Pradesh issued comprehensive instructions for clarifying

certain anomalies and situations where the candidates belonging

to the State of Andhra Pradesh are regarded as non-local

candidates in all the local areas within the State. In order to avoid

that situation, the Government clarified thus in paragraph-11:

“11. As clarifications were being sought on the

question as to who should be considered eligible to

apply as candidates belonging to the State of Andhra

Pradesh for the purpose of admission to courses of

studies offered by educational institutions, subject to

the control of the State Government against the 15% of

the available seats kept unreserved in terms of the

Andhra Pradesh Educational Institutions (Regulation

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

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State, subject to the control of the State 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;

(ii) (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;

(iii) (iii) Candidates who are children of parents who

are in the employment of this State or Central

Government, Public Sector corporations, Local

Bodies, Universities and other similar quasi-

Public Institutions within the State; and

(iv) Candidates who are spouses of those in the

employment of this State or Central

Government, Public Sector Corporations, Local

Bodies, Universities and educational institutions

recognised by the Government a University or

other competent authority and similar other

quasi-Government institutions within the

State.”

16. Admission to Post Graduate Courses in the Unified State of

Andhra Pradesh and in both the successor States, after bifurcation,

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has continuously been followed under the above provision.

However, the Government of Andhra Pradesh has issued

G.O.Ms.No.150, Health, Medical and Family Welfare (C1)

Department dated 11.12.2021 making the following amendment in

sub-rule (2) of Rule 3 of the 1977 Rules. The whole amendment is

extracted hereinbelow:

“In the said rules, for sub-rule (2) of Rule 3, except the

existing items (i) to (vi) under NOTE therein, the

following shall be substituted, namely;-

“(2) (a), Out of 50% of the seats in State Government

quota, 30% of clinical & 50% of non-clinical seats will

be exclusively allocated to in service candidates

serving in Government Health institutions in the State

of Andhra Pradesh.

i. The seats in above categories MD/MS/MDS will

be filled up based on the marks obtained in the

NEET-PG Examination.

ii. The candidate should have a left over service of

10 years at least.

iii. The candidates before seeking admission under

in-service quota should complete;

1. In Tribal areas: minimum three (3) years of regular

and continuous service in PHCs/CHCs/Area

Hospitals/District Hospitals/Sample Survey cum

assessment units/Leprosy temporary

hospitalization wards & any Tribal Institute

recognized by Government of Andhra Pradesh.

2. In Rural areas: minimum four (4) years of regular

and continuous service in PHCs/CHCs/Area

Hospitals/District Hospitals/MCH/Sample Survey

cum assessment units/Leprosy Control

Units/Leprosy temporary hospitalization

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wards/Mobile Medical Units & any Rural Institute

recognized by Government of Andhra Pradesh.

3. Minimum seven (7) years of continuous regular

service in AP Medical & Health

Services/A.P.V.V.P./AP Insurance Medical

Services/University of Health Sciences.

(b) Moreover, seats allotted to in-service candidates

which become vacant after 2

nd

counselling of NEET

will automatically revert to non-service candidates

for further stray counselling.

(c) After completion of specialization, the in-service

doctors to be available to serve in

Government facilities in the same area

(Tribal/Rural/Continuous regular service) from

where the reservation was sought, to a minimum of

five (5) years, subject to the availability of vacancies

in respective specialities, through a bond.

(d) The penalty of indemnity bond shall be @ Rs.15

lakh per year for non-rendering services after

completion of such course for in-service candidates

as stated above.

(e) In case of an in-service candidate, in the event

she/he leaves the course before its completion or

the competent authority concludes that the in

service candidate has not shown sufficient progress

in the studies or has failed to complete the course

in proper time or fails to resume duty even after the

expiry of the termination of the period of deputation

or at any time within a period of ten (10) years after

completion of the higher studies, it shall be lawful

to the Government to make recovery of the amount

(including pay and allowances, stipend, DA, tuition

fee etc., along with penalty and applicable interest)

spent on higher studies or specialized training from

the salary of the candidate.”

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17. In consequence of the impugned G.O.Ms.No.150 dated

11.12.2021, the respondent-University issued the impugned

Notification bearing No.1236/EA2/PG/2021 dated 23.12.2021,

providing the details of reservations for in-service candidates. As a

result of the impugned G.O.Ms.No.150 dated 11.12.2021 and the

Notification issued by the respondent-University, the petitioners

who are Doctors serving in the State of Telangana, have become

ineligible to be considered for admission in Post Graduate Courses

available in the Medical Colleges in the State of Andhra Pradesh,

necessitating the present writ petitions on the ground that the

impugned actions/orders are violative of Section 95 of the 2014

Act. The said provision is reproduced hereinbelow for ready

reference:

“95. In order to ensure equal opportunities for quality

higher education to all students in the successor

States, the existing admission quotas in all

government or private, aided or unaided, institutions

of higher, technical and medical education in so far as

it is provided under article 371D of the Constitution,

shall continue as such for a period of ten years during

which the existing common admission process shall

continue.”

18. Although reference is made to Article 371-D of the

Constitution of India, however, the main focus of the petitioners’

arguments revolves around the benefit accruing to them under

Section 95 of the 2014 Act. Therefore, the present order will focus

around this core issue. Section 95 of the 2014 Act, which has

already been extracted in the preceding paragraph, categorically

provides that the Government of Andhra Pradesh and the

Government of Telangana are mandated in law to maintain the

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existing admission quota in all government or private, aided or

unaided, institutions of higher, technical and medical education as

provided under Article 371-D of the Constitution of India, for a

period of ten years during which the existing common admission

process shall continue. The expressions “all students in the

successor states” and “the existing common admission process”

together with the expressions “the existing admission quota” and

“shall continue” are important and relevant for the adjudication of

the issue brought before this Court. A deep perusal of the

provision would make it manifest that the existing common

admission process shall continue as such for a period of ten years.

The focus in the legislative wisdom under Section 95 of the 2014

Act is for continuation of the existing common admission process

in relation to the existing admission quota in all government or

private, aided or unaided, institutions of higher, technical and

medical education. As a result, both the States are obligated in

law to continue the existing common admission process for a

period of ten years in the field relating to medical education

amongst others.

19. True it is that it appears paradoxical that a person who is

not serving in the State of Andhra Pradesh is still treated to be

in-service candidate in that State. However, as long as the

mandate of Section 95 of the 2014 Act is operative, we have no

option but to give full effect to the legal provision. The words of the

provision as employed in Section 95 of the 2014 Act have to be

read and given effect to as it is, as the Court is not entitled to read

down the provision and as a matter of fact, there is no such

challenge drawn before this Court.

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20. In taking the above view, we are fortified by a judgment

rendered by a Division Bench of the High Court of Judicature at

Hyderabad for the State of Telangana and the State of Andhra

Pradesh in Dr. Phanindra Kumar Nagisetty v. Dr. N.T.R.

University of Health Sciences, reported in 2016 (6) ALT 288.

21. In view of the above discussion, the impugned amendment

vide G.O.Ms.No.150 dated 11.12.2021 restricting consideration of

eligibility of Doctors serving only in the State of Andhra Pradesh, is

in violation of Section 95 of the 2014 Act. Therefore, we have no

hesitation in setting aside the amendment to the extent it restricts

such consideration to the Doctors serving only in the State of

Andhra Pradesh. Resultantly, the petitioners who are serving in

the State of Telangana are also entitled to be considered as

in-service local or in-service non-local candidates under the

respective quota for which they have applied. Consequent upon

setting aside the impugned amendment vide G.O.Ms.No.150 dated

11.12.2021 to the extent indicated above, the resultant Notification

dated 23.12.2021 issued vide Notification No.1236/EA2/PG/2021

shall also stand set aside to the same extent.

22. Resultantly, both the writ petitions are allowed to the extent

indicated above. No order as to costs. Pending miscellaneous

applications, if any, shall stand closed.

Sd/- Sd/-

PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY, J

MRR