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Judgment
B. Subhashan Reddy, J.—These Writ Petitions raise a very important point for consideration as to whether 2 years rural service for pre-1987 appointee Doctors or 3 years rural service for post-1987 Doctor appointees, which has been incorporated in the Notification issued by the University of Health Sciences, dated 3-5-1995 calling for applications for admission into Post-Graduate Medical Courses is valid or not?
Learned counsel for the petitioners submit that this imposition is not valid for the reason that there is no rule which has been framed in exercise of the Rule-making power contained u/s 3 read with Section 15 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (hereinafter referred to as ''the Act'') Section 2 (c) of the Act defines ''educational institution'' including the University and it is needless to mention that University of Health Sciences, which is one of the respondents in these cases, is an educational institution within the meaning of the Act. Section 3 of the Act regulates the admissions by guiding that the admissions shall be either on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test conducted by such authority and in such manner as may be prescribed. A proviso is added to the said Section making it clear that in so far as admissions into Medical and Engineering Colleges are concerned, the admissions shall be only on the basis of the ranking assigned in the Common Entrance Test conducted. In exercise of the powers u/s 3 read with Section 15 of the Act, the Rules titled "Rules for Admission to Post Graduate Courses in the Medical Colleges in the State of Andhra Pradesh" (hereinafter referred to as ''the Rules'') have been framed from time to time; the first being G.O.Ms.No.549, Medical and Health, dated 6-9-1983. Rule 3 (1) of the Rules refers to the reservations carved out for Scheduled Castes, Scheduled Tribes and Backward Classes, while Rule 3 (2) of the Rules carves out reservation of 15% seats in clinical subjects and 30% in non-clinical subjects for inservice candidates. It also contemplates that candidates selected on merit in respective service shall be counted against inservice quota. There was no explanation as to who was to be construed as in service candidate; in the result, by virtue of G.O.Ms.No.549, Medical and Health, dated 6-9-1983 all the Doctors, who had acquired MBBS degree and were in respective service, regardless of the length of service, were construed and considered as inservice candidates. Then came G.O.Ms.No.724, Medical and Health (E2) Department, dated 19-12-1985 amending Rule 3 (2) with an explanation stating "an inservice candidate is one who has put in a minimum of 2 years service on duty in the respective service". The respective service is referable to 5 categories, which is a part of the explanation, namely, Andhra Pradesh Medical and Health Services, Andhra Pradesh Insurance Medical Services, Andhra Pradesh Municipal Services, Andhra Pradesh Panchayat Raj Services and Andhra Pradesh State Road Transport Corporation Services. As such, later to 19-12-1985 whatever admissions made by University of Health Sciences in so far as admissions to Post-Graduate Medical Courses are concerned, no inservice candidate was eligible for being appointed unless he had put in a minimum of 2 years service as on the cut-off date specified in the Notification, in the respective service mentioned above. The same again underwent change by a statutory amendment in exercise of the powers contained Under Sections 3 (1) and 15 of the Act in G.O.Ms.No.626, Health, Medical and Family Welfare (E2) Department, dated 30-9-1986 explaining the inservice candidate as not only one having served for 2 years in the respective service, but in lieu thereof, one year service in the tribal area notified by the Government. That was by way of concession to such of the inservice candidates, who had served for a period of one year in the tribal area as being equal to 2 years of service. Learned Government Pleader for Medical and Health, wants me to read the 2 years service as rural service. But the words ''rural service'' are absent in the explanation to Rule 3 (2) and it is only mentioned as ''service''. It is not denied that for the admissions made from 1983 to 1985 by the Government or from 1986 by the University of Health Sciences, there was no insistence of 2 years rural service as a condition precedent for construing a candidate as an inservice candidate. The reason is simple as there was no such imposition of rural service in the statutory rule mentioned above and the imposition was only ''service'' without any distinction as to rural or otherwise.
Mr. Rajagopal Rao, the learned Government Pleader for Medical and Health, contends that if Rules 3 (2), 5, 9 and 19 are read together and are construed as a whole, they will only connote that it is 2 years rural service and the letter dated 29-4-1995 is only a reiteration of what is stated in the Rules mentioned above. Mr. K.G.K. Prasad, the learned Standing Counsel for University of Health Sciences, does not concur with the said construction placed by Mr .P. Rajagopal Rao, and submits that the University for the first time has incorporated the condition of rural service of 3 years for post-1987 candidates and 2 years for pre-1987 candidates basing only on the letter dated 29-4-1995 issued by the Government. In disputably, the fact remain that this letter of the Government dated 29-4-1995 did not transform into a Rule traceable to one framed Under Sections 3 and 15 of the Act; as such, this letter dated 29-4-1995 is not having a statutory force and cannot be enforced by the University of Health Sciences. Mr.K.G.K. Prasad, made a futile attempt to justify the imposition in their Notification dated 22-5-1995 on the ground that University of Health Sciences is also a State under Article 12 of the Constitution of India and that the University is entitled to impose the said condition, even if it was imposed at the instance of the Government by letter dated 29-4-1995 mentioned supra. I am afraid, I cannot accede to this contention for the reason that imposition of such a condition is not within the domain of the University of Health Sciences as the same is essentially a legislative function either under the Act or by a Rule framed under the rule making power Under Sections 3 and 15 of the Act and that area of imposition was not left to the discretion of the University. I have also considered the effect of Rules 5, 9 and 19 so as to test the argument of Mr. Rjagopal Rao, the learned Government Pleader that if Rule 3 (2) is read with Rules 5,9 and 19, it has to be held that inservice candidate is one who has put in rural service of 2 years.
''Inservice candidate'' in general means a person in specified service. The length of service was not the criteria. The Government though it fit to fix up minimum length of service so as to be eligible for admission into Post-Graduate Medical Courses and as they were prevented from seeking admission into Post-Graduate Medical Courses without putting 2 years minimum service, as an incentive, 15% seats for clinical and 30% seats for non-clinical subjects in Post Graduate Medical Course are reserved. As to who is an inservice candidate is specifically defined by adding explanation to Rule 3 (2) of the Rules. The said Rule alone is the criteria for considering and construing as to who is an in-service candidate and no other rule is pertinent in deciding mat aspect. Other Rules cited and referred to above by the learned Government Pleader have got no relevance for the definition of ''inservice candidate''. Other rules only deal with the other aspects with regard leave or leave salary or stipend and Weightage of marks of 10% for 2 years rural service and 15% for 3 years rural service or 10% for one year service in tribal area and 15% for 2 years service in tribal area notified by the Government. In fact, the said Rule dealing with the weightage of marks for addition for considering the merit, is against the proposition argued by the learned Government Pleader as it is incomprehensible that the benefit having been already given in the shape of weightage of marks for rural service either in non-tribal rural areas or tribal rural areas, there could be complete prohibition of all other in-service candidates, who did not serve in rural areas or tribal areas. That apart, when a statute or a Rule framed thereunder is construed, it has to be construed to further the Object of specific reservation granted to in-service candidates without further classifying them as in-service rural candidate or in-service non-rural candidate. Such a distinction, which is not made in the statutory Rule 3 (2) explanation, cannot be read into it. Further, even if there is any dichotomy, the specific definition embodied in the explanation to Rule 3 (2) of the Rules always prevails and overrides any other construction to the contra.
The letter dated 29-4-1995 issued by the Government to the University of Health Sciences to impose a condition of 2 years rural service for pre-1987 employees and 3 years rural service for post-1987 employees is only administrative in nature and not legislative as the said letter cannot partake the character of a statutory rule framed u/s 3 read with Section 15 of the Act. It is needless to mention mat unless a statutory rule is framed in exercise of rule making power u/s 3 read with Section 15 of the Act, no such letter or instruction of the kind dated 29-4-1995 issued by the Government can have any legal sanctity. It is quite hypothetical to adjudicate as to what would be the legal effect if the letter dated 29-4-1995 is transformed as a Rule at a later point of time as it is always desirable by the Court not to decide in case of .'' hypothetical factors. Suffice it to say that as on this day, there is no valid condition imposing 2 years rural service for pre- 1987employees or 3 years rural service for post-1987employees to define an in-service candidate for admission into Post-Graduate Medical Courses and the Rule so far issued and operative as on this day, only mandate that an in-service candidate is one, who has put in a service of 2 years in a particular service, namely, A.P. Medical and Health Services, A.P. Insurance Medical Services, A.P. Municipal Services, A.P. Panchayat Raj Services and A.P. State Board Transport Corporation Services and for the instant academic year 1995-96 for construing the 2 years service, the cut-off date is 15-6-1995.
In view of what is stated supra, the imposition of such condition by the University of Health Sciences in its Notification dated 22-5-1995 relating to Post-Graduate Medical Courses and concerning in-service candidates requiring them to have 2 years rural service for pre-1987 employees and 3 years rural service for post-1987 employees is struck down. Now, the University of Health Sciences, shall consider the case of the petitioners for admission into Post-Graduate Medical Courses in the respective subjects applied by them and in the quota earmarked for the in-service candidates, i.e. 15% for clinical and 30% for non-clinical subjects, subject to their merit ranking and subject to the condition that they had put in a minimum service of 2 years as on 15-6-1995.
Accordingly, the Writ Petitions are allowed. No order as to costs.