Telangana High Court
P. Lokasvi vs State Of Telangana on 11 September, 2023
Bench: Alok Aradhe, T.Vinod Kumar
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE T.VINOD KUMAR
+ WRIT PETITION Nos.18674, 22062, 22083 and
22182 of 2023
% Date: 11.09.2023
# P.Lokasvi and others.
... Petitioners
v.
$ State of Telangana,
Represented by its Principal Secretary,
Department of Medical, Health and Family Welfare,
BRKR Bhavan, Tank Bund, Hyderabad,
Telangana,
and others.
... Respondents
! Counsel for the petitioners in W.P.No.18674 of 2023:
Mr.P.S.Rajasekhar
! Counsel for the petitioners in W.P.Nos.22062 and
22083 of 2023: Mr.Peri Prabhakar
! Counsel for the petitioner in W.P.No.22182 of 2023:
Mr.M.Srikanth
^ Counsel for respondents No.1 and 2:
Mr. J.Ramchander Rao,
Learned Additional Advocate General
2
^ Counsel for respondent No.3: Mr. Gadi Praveen Kumar,
Learned Deputy Solicitor General of India
< GIST:
HEAD NOTE:
? CASES REFERRED:
1. (1986) 2 SCC 679
2. (2021) 15 SCC 534
3. 2023 SCC Online SC 994
4. (1974) 4 SCC 396
5. (1993) 3 SCC 499
6. (2005) 1 SCC 625
7. (2015) 8 SCC 129
8. (2020) 17 SCC 465
9. (1985) 3 All.ER 300
10. (1994) 5 SCC 509
11. AIR 1958 SC 538
12. (2001) 1 SCC 442
13. (2001) 3 SCC 635
14. 2021 SCC OnLine SC 826
15. (2004) 12 SCC 278
16. (2012) 8 SCC 189
3
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE T.VINOD KUMAR
WRIT PETITION Nos.18674, 22062, 22083 and
22182 of 2023
COMMON ORDER: (Per the Hon'ble the Chief Justice Alok Aradhe)
The petitioners hold NCC 'A' category certificate. In
this batch of writ petitions, petitioners who are aspirants
seeking admission to MBBS/BDS course for the academic
year 2023-2024 assail the validity of Rule 4(iii)(a) of the
Telangana Medical & Dental Colleges Admission
(Admission into MBBS & BDS Courses) Rules, 2017
(hereinafter referred to as, "the 2017 Rules"). For facility of
reference, facts of W.P.No.18674 of 2023 are being referred.
(i) FACTUAL BACKGROUND:
2. The Government of Telangana in exercise of powers
under Section 3 read with Section 15(1) of the Telangana
Educational Institutions (Regulation of Admission and
Prohibition of Capitation Fee) Act, 1983, has framed the
4
2017 Rules. The said Rules govern admission to MBBS
and BDS courses in the State of Telangana.
3. The petitioner No.2 secured the NCC-A certificate in
August, 2019, whereas petitioner No.1 secured NCC-A
certificate on 17.08.2021.
4. The National Testing Agency (NTA) issued a
notification dated 06.03.2023 for conducting the National
Eligibility-cum-Entrance Test (NEET), which was
conducted on 07.05.2023. The petitioners appeared in the
said examination. The result of examination was declared
on 13.06.2023. The petitioners qualified for admission into
MBBS/BDS course for the academic year 2023-2024.
5. The Government of Telangana vide G.O.Ms.No.75,
dated 04.07.2023, amended the 2017 Rules and
substituted the enabling provision prescribing 1%
reservation for National Cadet Corps (NCC) candidates by
making a provision for grant of grace marks for certain
categories of candidates holding 'B' category certificate and
excluded students having NCC 'A' and 'C' certificates. In
5
the aforesaid factual background, these writ petitions have
been filed.
(ii) SUBMISSIONS ON BEHALF OF PETITIONERS:
6. Learned counsel for the petitioners submitted that
the NEET examination was held on 07.05.2023 and the
result of the examination was declared on 13.06.2023.
Thereafter, on 04.07.2023, the 2017 Rules have been
amended by the State Government. It is, therefore,
contended that the petitioners had legitimate expectation
that reservation would be provided to them as they hold
NCC-A certificate. However, contrary to the legitimate
expectation of the petitioners, the 2017 Rules have been
amended. It is further contended that the amendment
seeks to provide grace marks only to three categories of
persons who hold NCC 'B' certificate out of several
categories of NCC quota in terms of G.O.Ms.No.75, dated
08.09.2015. It is argued that there is no rational nexus
between the rules and the object sought to be achieved. It
is, therefore, contended that the amendment to the 2017
6
Rules is arbitrary and violative of Article 14 of the
Constitution of India.
7. It is urged that amendment to the 2017 Rules seeks
to alter the position existing as on the date of notifying the
entrance examination, which is not permissible in law. It
is urged that the amendment to the 2017 Rules has the
effect of reducing the number of seats available under NCC
quota which would have otherwise been available, if earlier
provision prescribing 1% reservation was followed. It is
pointed out that the amendment to the 2017 Rules is
vague inasmuch as it seeks to amend "Rule 4" of
G.O.Ms.No.114, dated 05.07.2017, which does not exist in
the 2017 Rules. In support of the aforesaid submissions,
reliance has been placed on the decisions of the Hon'ble
Supreme Court in Comptroller and Auditor General of
India v. K.S.Jagannathan 1, State of Tamil Nadu v.
National South Indian River Interlinking Agriculturist
1 (1986) 2 SCC 679
7
Association 2 and Sivanandan C.T v. High Court of
Kerala 3.
(iii) SUBMISSIONS ON BEHALF OF STATE:
8. Learned Additional Advocate General submitted that
in the facts of the case and in view of the fact that the 2017
Rules have been amended in exercise of statutory powers,
the doctrine of legitimate expectation has no application to
the facts of the case. It is pointed out that NEET UG
examination was held on 07.05.2023. The result of the
aforesaid examination was declared on 13.06.2023. The
2017 Rules have been amended on 04.07.2023 and
thereafter the University has issued a notification on
06.07.2023 inviting online applications for admission to
MBBS/BDS courses in the State of Telangana. It is argued
that no promise at any point of time was extended to the
petitioners that the reservation would be provided to them.
Therefore, the contention that the petitioners had
2 (2021) 15 SCC 534
3 2023 SCC Online SC 994
8
legitimate expectation that reservation would be provided
to them has no factual foundation.
9. It is pointed out that certificate "A" is a basic
certificate of NCC and can be obtained up to 10th standard,
whereas NCC "B" certificate would be issued to the
students who participate in the activities of NCC up to
intermediate level (12th standard). It is further pointed out
that NCC "C" certificate can be obtained at graduate level.
It is submitted that the contention that Rule 4(iii)(a) of the
2017 Rules is arbitrary or is violative of Article 14 of the
Constitution of India, is misconceived.
10. It is contended that in the amendment dated
04.07.2023, reference ought to have been made to Rule
3(IV)(c) instead of Rule 4(iii)(a) of the 2017 Rules. It is
further contended that mere reference to a wrong provision
does not invalidate the rule. It is also contended that
providing reservation or grace marks, is a matter of policy
and no mandamus can be issued to provide reservation. It
is contended that the amendment in the 2017 Rules had
been brought about in view of the communication dated
9
02.08.2016, sent by the Minister of State for Defence,
Government of India, as well as communication dated
20.09.2022 addressed by the Additional Director (P&C),
NCC (AP&T). In support of the aforesaid submissions,
reliance has been placed on H.L.Mehra v. Union of India 4,
Union of India v. Hindustan Development Corporation 5,
Bannari Amman Sugars Ltd. v. Commercial Tax Officer 6
and P.Suseela v. University Grants Commission 7.
(iv) SUBMISSIONS ON BEHALF OF UNION OF INDIA:
11. Learned Deputy Solicitor General of India has
submitted that primary object of NCC is to create a human
resource of organised, trained and motivated youth by
training the cadets and to provide leadership in all walks of
life who would be available for services of the nation. The
further object of NCC is to provide a suitable environment
to motivate the youth to take up a career in armed forces.
It is contended that object of NCC is not to provide for
reservation for candidates having various NCC certificates,
4 (1974) 4 SCC 396
5 (1993) 3 SCC 499
6 (2005) 1 SCC 625
7 (2015) 8 SCC 129
10
who seek admission to MBBS/BDS course. It is further
contended that the State Government has amended the
2017 Rules in view of the letter dated 02.08.2016
addressed by the Minister of State for Defence.
(v) REJOINDER SUBMISSIONS ON BEHALF OF
PETITIONERS:
12. Learned counsel for the petitioners by way of
rejoinder submits that Rule 4(iii)(a) of the 2017 Rules does
not exist and judgments cited by the learned Additional
Advocate General pertaining to doctrine of legitimate
expectation have been considered by the Constitution
Bench of the Hon'ble Supreme Court in Sivanandan C.T
(supra). It is pointed out that even though the
communication dated 02.08.2016 was sent by the Minister
of State for Defence, yet in the 2017 Rules, a provision for
reservation was made, which has been subsequently
deleted on 04.07.2023 for which no explanation has been
offered. It is submitted that even though the writ petitions
were pending before this Court, the University has
conducted the counselling for admission to the candidates
11
under NCC quota. It is argued that in view of the decision
of the Hon'ble Supreme Court in S.Krishna Sradha v.
State of Andhra Pradesh 8, the petitioners are entitled to
relief on the principle of restitution.
(vi) ANALYSIS:
13. We have considered the submissions made on both
sides and perused the record. The issues that arise for
consideration in these writ petitions are:
i) Whether doctrine of legitimate expectation
applies in case of amendment to the 2017
Rules? If so, whether legitimate expectation of
the petitioners has been violated by enacting
Rule 4(iii)(a)?
ii) Whether by amending the 2017 Rules, the rules
of the game have been altered midway?
iii) Whether the impugned rule constitutes an
infraction of mandate contained in Article 14 of
the Constitution of India?
8 (2020) 17 SCC 465
12
iv) Whether prescribing reservation or awarding
grace marks is a matter of policy? If so, the
scope of judicial review? and
v) Whether the amendment in the 2017 Rules has
been made in respect of a non-existent rule? If
so, its effect?
(vii) STATUTORY FRAMEWORK:
14. Before adverting to the issues, it is apposite to take
note of the 2017 Rules which existed prior to its
amendment which prescribed for 1% reservation to NCC
candidates. The relevant extract of the unamended Rule is
reproduced below:
IV) HORIZONTAL RESERVATION OF SEATS:
(a) 33 1/3% of seats are guaranteed for women and
candidates in each category. This regulation of
guarantee shall not be applicable if women
candidates are selected on merit in each category
from 33 1/3% or more of the seats therein.
(b) Reservation for special categories:
13
3% seats shall be reserved for differently abled
candidates in each category.
Reservations to physically challenged candidates:
The reservations to physically challenged
candidates shall be implemented in each category
on the total number of seats for that category in
MBBS and BDS courses separately.
KNR University of Health Sciences shall
constitute a Medical board comprising of
Professors of Orthopaedics and General Medicine
Departments from Government Medical Colleges
including NIMS. The candidate should appear
before the board constituted for assessment of
percentage of disability as per the norms of the
Government. The decision of the Medical board
constituted by the University is final in all
respects. The University will notify the list of
eligible candidates on the website for exercising
options. The candidate should fulfil the eligibility
criteria as per Medical Council of India norms as
follows:
Reservation to Physically challenged candidates is
applicable to locomotor disorders of lower limbs
with disability between 50% to 70% as category-I
and between 40% to 50% as category-II.
(c) National Cadet Corps (NCC) : 1%
(d) Games and Sports :1/2% (0.5%)
14
(e) CAP (Children of Ex-serviceman and service
personnel) : 1%
(f) PMC (Police Martyrs children) : 0.25%
...
15. The 2017 Rules were amended by G.O.Ms.No.75,
dated 04.07.2023. Rule 3(2) of G.O.Ms.No.75, dated
04.07.2023 reads as under:
(2) In Rule 4, after clause (iii), and the paragraph
thereunder, the following clause shall be inserted
namely,-
"(iii) (a) Grace marks for NCC cadets:
NCC cadets (who have obtained NCC certificates
prior to qualifying exam i.e., intermediate or its
equivalent) who have qualified NEET UG and who
have applied for admission, shall be provided with
grace marks to be added to NEET score as
follows:
Category % of Grace Marks
i. Participation in Republic Day Camp (RDC) : 7%
ii. Participation in Thal Sainik Camp (TSC)/Vayu: 5%
iii. NCC 'B' Certificate : 3%
The Director NCC, Telangana State shall depute
officers to the verification centre as per the
requisition from Registrar, KNRUHS, Warangal.
The verification officers shall submit candidate
wise verified certificates list to Registrar,
KNRUHS. The decision of verification officers is
final with respect to verification of above
certificates. KNRUHS will prepare merit list after
addition of grace marks as per the verified data
submitted by the Directorate of NCC.
16. Thus, it is evident that the provision prescribing for
horizontal reservation seats in respect of NCC 1% has been
substituted by incorporation of Rule 4(iii)(a) and grace
marks have been provided.
17. We will now proceed to deal with the issues in the
seriatim.
18. Issues No.(i) and (ii):
i) Whether doctrine of legitimate expectation
applies in case of amendment to the 2017
Rules? If so, whether legitimate expectation
of the petitioners has been violated by
enacting Rule 4(iii)(a)?
ii) Whether by amending the 2017 Rules, the
rules of the game have been altered
midway?
Issues No.(i) and (ii) are interlinked. Therefore, they
are taken up together.
18.1. Legitimate or reasonable expectation may arise from
an express promise given on behalf of a public authority. It
may also arise from existence of a regular practice which a
claimant can reasonably expect to continue (See R v.
Secretary of Transport Exporte Greater London
Council 9). In Bannari Amman Sugars Limited (supra)
the Hon'ble Supreme Court while dealing with the doctrine
of legitimate expectation in paragraph 20 held as under:
20. In Shrijee Sales Corpn. v. Union of
India [(1997) 3 SCC 398] it was observed that once
public interest is accepted as the superior equity which
can override individual equity the principle would be
applicable even in cases where a period has been
indicated for operation of the promise. If there is a
supervening public equity, the Government would be
allowed to change its stand and has the power to
withdraw from representation made by it which induced
persons to take certain steps which may have gone
adverse to the interest of such persons on account of
such withdrawal. Moreover, the Government is
competent to rescind from the promise even if there is
no manifest public interest involved, provided no one is
put in any adverse situation which cannot be rectified.
9 (1985) 3 All.ER 300
Similar view was expressed in Pawan Alloys and
Casting (P) Ltd. v. U.P. SEB [(1997) 7 SCC 251 : AIR
1997 SC 3910] and in STO v. Shree Durga Oil
Mills [(1998) 1 SCC 572] and it was further held that
the Government could change its industrial policy if the
situation so warranted and merely because the
resolution was announced for a particular period, it did
not mean that the Government could not amend and
change the policy under any circumstances. If the party
claiming application of the doctrine acted on the basis of
a notification it should have known that such
notification was liable to be amended or rescinded at
any point of time, if the Government felt that it was
necessary to do so in public interest.
18.2. A Constitution Bench of the Hon'ble Supreme Court
in Sivanandan C.T (supra) dealt with the doctrine of
legitimate expectation. In paragraphs 18, 29, 41 and 60 of
decision, it is held as under:
18. The basis of the doctrine of legitimate expectation
in public law is founded on the principles of fairness
and non-arbitrariness in government dealings with
individuals. It recognizes that a public authority's
promise or past conduct will give rise to a legitimate
expectation. The doctrine is premised on the notion that
public authorities, while performing their public duties,
ought to honor their promises or past practices. The
legitimacy of an expectation can be inferred if it is rooted
in law, custom, or established procedure. (Salemi v.
Mackellar ([1977] HCA 26).
29. A claim based on the doctrine of procedural
legitimate expectation arises where a claimant expects
the public authority to follow a particular procedure
before taking a decision. This is in contradistinction to
the doctrine of substantive legitimate expectation where
a claimant expects conferral of a substantive benefit
based on the existing promise or practice of the public
authority. The doctrine of substantive legitimate
expectation has now been accepted as an integral part of
both the common law as well as Indian jurisprudence.
41. The doctrine of legitimate expectation does not
impede or hinder the power of the public authorities to
lay down a policy or withdraw it. The public authority
has the discretion to exercise the full range of choices
available within its executive power. The public
authority often has to take into consideration diverse
factors, concerns, and interests before arriving at a
particular policy decision. The courts are generally
cautious in interfering with a bona fide decision of
public authorities which denies a legitimate expectation
provided such a decision is taken in the larger public
interest. Thus, public interest serves as a limitation on
the application of the doctrine of legitimate expectation.
Courts have to determine whether the public interest is
compelling and sufficient to outweigh the legitimate
expectation of the claimant. While performing a
balancing exercise, courts have to often grapple with the
issues of burden and standard of proof required to
dislodge the claim of legitimate expectation.
60. The following are our conclusions in view of the
above discussions:
(i) The principles of good administration require that
the decisions of public authorities must
withstand the test of consistency, transparency,
and predictability to avoid being termed as
arbitrary and violative of Article 14;
(ii) An individual who claims a benefit or entitlement
based on the doctrine of substantive legitimate
expectation has to establish the following : (i) the
legitimacy of the expectation; and that (ii) the
denial of the legitimate expectation led to a
violation of Article 14;
(iii) A public authority must objectively demonstrate
by placing relevant material before the court that
its decision was in the public interest to frustrate
a claim of legitimate expectation;
(iv) The decision of the High Court of Kerala to apply
a minimum cut-off to the viva voce examination is
contrary to Rule 2(c)(iii) of the 1961 Rules.
(v) The High Court's decision to apply the minimum
cut-off marks for the viva voce frustrates the
substantive legitimate expectation of the
petitioners. The decision is arbitrary and violative
of Article 14.
(vi) In terms of relief, we hold that it would be
contrary to the public interest to direct the
induction of the petitioners into the Higher
Judicial Service after the lapse of more than six
years. Candidates who have been selected nearly
six years ago cannot be unseated. They were all
qualified and have been serving the district
judiciary of the state. Unseating them at this
stage would be contrary to public interest. To
induct the petitioners would be to bring in new
candidates in preference to those who are holding
judicial office for a length of time. To deprive the
state and its citizens of the benefit of these
experienced judicial officers at a senior position
would not be in public interest.
18.3. In Madras City Wine Merchants' Association v.
State of Tamil Nadu 10, the Hon'ble Supreme Court in
paragraph 52 held that doctrine of legitimate expectation
applies only in the field of administrative law and it is not
permissible to invoke the doctrine as against the
legislation. Relevant extract of paragraph 52 reads as
under:
52. It was by a rule (subordinate legislation) in
exercise of the powers conferred by Sections 17-C, 17-D,
21 and 54 of the Tamil Nadu Prohibition Act, 1937
licences under Bar Rules came to be granted. Those
Rules have been repealed by exercise of the same powers
under Sections 17-C, 17-D, 21 and 54 of the Prohibition
Act. Therefore, this is a case of legislation. The doctrine of
legitimate expectation arises only in the field of
administrative decisions. If the plea of legitimate
expectation relates to procedural fairness there is no
possibility whatever of invoking the doctrine as against
the legislation...
10 (1994) 5 SCC 509
18.4. In the light of the aforesaid well settled legal
principles with regard to legitimate expectation, we may
advert to the facts of the case in hand. In the instant case,
the petitioners appeared in NEET UG examination which
was held on 07.05.2023. The result of the said examination
was declared on 13.06.2023. The 2017 Rules govern the
admission to MBBS/BDS courses in the State of Telangana
which initially provided horizontal reservation of seats to
the extent of 1% to the candidates who obtained NCC
certificate. The 2017 Rules were amended on 04.07.2023.
By the aforesaid amendment, NCC cadets who participated
in the Republic Day Camp (RDC) and Thal Sainik Camp
(TSC)/Vayu and candidates who held NCC-B certificate
were provided grace marks to the extent of 7%, 5% and 3%
respectively. Thus, the rule providing for reservation to the
NCC candidates to the extent of 1% was substituted by the
provision providing grace marks to the NCC candidates
who had participated in RDC and Thal Sainik Camp/Vayu
and held NCC-B certificate. The aforesaid rules only apply
to the State of Telangana. After the 2017 Rules were
amended on 04.07.2023, a notification was issued on
06.07.2023 inviting online application for admission to
MBBS/BDS courses in the State of Telangana.
18.5. Thus, from the facts referred to in the preceding
paragraphs, it is evident that even though the submission
that position existing on the date of notifying the entrance
examination was altered may be correct, but the same has
no impact so far as controversy involved in this batch of
writ petitions is concerned. The 2017 Rules apply to the
candidates seeking admission to MBBS/BDS course in the
State of Telangana and the said rules were amended on
04.07.2023 before the University issued a notification on
06.07.2023. The petitioners before applying for registration
for admission to MBBS/BDS course knew that the
provision prescribing for reservation to the extent of 1%
has been substituted by the provision providing for grace
marks to the candidates who hold the NCC 'B' certificates.
Therefore, the petitioners who hold NCC 'A' certificates
could not have any legitimate expectation on 06.07.2023
that 1% reservation would be provided to them.
18.6. In any case, the instant case was a case of exercise of
legislative powers by amendment of the statutory rules.
Therefore, in view of law laid down by the Hon'ble Supreme
Court in Madras City Wine Merchants' Association
(supra), the doctrine of legitimate expectation cannot be
invoked against the legislation. Therefore, the contention
that the legitimate expectation, if any, of the petitioners
has been violated by amending the rule with effect from
04.07.2023 does not deserve acceptance.
18.7. Accordingly, issues No. (i) and (ii) are answered.
19. Issue No.(iii):
iii) Whether the impugned rule constitutes an
infraction of mandate contained in Article
14 of the Constitution of India?
19.1. In Ram Krishna Dalmia v. Justice
S.R.Tendolkar 11, the Constitution Bench of the Hon'ble
Supreme Court held that Article 14 of the Constitution of
India forbids class legislation and it does not forbid
11 AIR 1958 SC 538
reasonable classification for the purposes of legislation. In
order, however, to pass the test of permissible
classification, two conditions must be fulfilled, namely, (i)
that the classification must be founded on an intelligible
differentia which distinguishes persons or things that are
grouped together from others left out of the group, and (ii)
that that differentia must have a rational relation to the
object sought to be achieved by the statute in question.
The classification may be founded on different bases,
namely, geographical, or according to objects or
occupations or the like. What is necessary is that there
must be a nexus between the basis of classification and the
object of the Act under consideration. It is also well
established that Article 14 condemns discrimination not
only by a substantive law but also by a law of procedure.
19.2. In K.R. Lakshman v. Karnataka Electricity
Board 12, it has been held that the concept of equality
before law means that among equals the law should be
equal and should be equally administered and that the
12 (2001) 1 SCC 442
likes should be treated alike. It has further been held by
the Hon'ble Supreme Court that, all that Article 14
guarantees is a similarity of treatment and not identical
treatment and the guarantee of equal protection of law and
equality before the law does not prohibit reasonable
classification. It has also been held that equality before law
does not mean that things which are different shall be
treated as though they were the same. The Hon'ble
Supreme Court has also held that there must be a nexus
between the basis of classification and the object of the
legislation and so long as the classification is based on a
rational basis and so long as all persons falling in the same
class are treated alike, there can be no question of violating
the equality clause.
19.3. In the instant case, a candidate in order to be eligible
to appear in NEET UG examination ought to have passed
the 12th standard examination i.e., intermediate
examination. NCC-A certificate can be obtained by the
students up to 10th standard. Thereafter, if a student is
interested in participating in the activities of the NCC up to
12th standard, he can get NCC-B certificate. The NCC-C
certificate is granted at the graduate level. The earlier rule
prescribing for reservation to the extent of 1% included all
the aforesaid categories of students who were NCC A, B
and C certificate holders.
19.4. The Minister of State for Defence by a communication
dated 02.08.2016 addressed to the State Governments
emphasised the need that State Government should
provide uniform code of incentives to NCC candidates and
best practices of various States were communicated with
the communication. The relevant extract of said
communication reads as under:
"Since the NCC cadets devote considerable
amount of time to pursuing NCC related training
activities compromising their valuable studies, it has
been discussed at the 21st Joint State Representatives
& Deputy Directors General (JSR&D) Conference held
on 31st July, 2015 that State Governments should
provide them uniform code of incentives. To this
effect, best practices of various states have been
consolidated and the same is enclosed for ready
reference.
I hope you will endeavour positively on this
arena and consider various best practices and code of
incentives to cadets which will encourage the youth of
this country to enrich their morale with the valuable
qualities of unity and discipline."
19.5. Thereafter, the Additional Director of DDG, NCC
(AP&T), by communication dated 20.09.2022 brought to
the notice of the State Government that over a period of 6
to 7 years, 1% reservation prescribed for students holding
NCC certificates has led to serious misuse of various
priorities given in the Government Orders. Therefore, the
State Government was requested to take the action for
revision of Government Orders. The relevant portion of
communication dated 20.09.2022 is extracted below for
facility of reference:
"3. Over a period of 6 to 7 years, it has been
observed that this 1% reservation has led to serious
misuse of various priorities given in the Government
Orders with interference/influence from various
agencies. To name a few the following are enumerated:
(a) Post EAMCET-2016 some cadets
challenged the Note No.1 of the GO's
pertaining to qualification exam and after
the Supreme Court Judgment an
amendment GO in terms of GO Ms.No.123
was issued.
(b) Judgment dated 18th April, 2019 on
review application in I.A.No.3 of 2018 in
W.P.No.23930 of 2018 setting aside Note
No.5 in the Government Orders Ms.No.75 of
the Government of Telangana a number of
cadets have approached the High Court of
both the States of Telangana and Andhra
Pradesh for getting priority in NCC Quota
for consideration of their participation and
winning medal in sailing which was
conducted by Sailing Federation of India in
which NCC has not fielded a team and the
ex-cadets have participated in their
individual capacity. This precedence has
denied the rightful priority to genuine
cadets. More over some more certificates on
similar lines of Sailing Federation of India,
like Rafting, Rock Climbing, Go Karting etc
have cropped up during counselling to
professional courses.
4. During the 21st Joint State
Representatives & Deputy Director General (JSR&D)
Conference held on 30th/31st July 2015, under the
chairmanship of Hon'ble Raksha Rajya Mantri (RRM),
the proposal for incentive to NCC cadets was
discussed and it was decided that the State
Governments to provide sufficient incentives in
academics and professional fields for the highly
accomplished NCC cadets which would ensure a big
flip to NCC Training. The aim was to ensure that a
common minimum standard of incentives is followed
by State/UT Governments in university admission
and employment in State Uniform Services. The
proposed incentives were forwarded to all the State
Chief Ministers through a personal letter (Copy att
with annexure-1) from the RRM.
5. It is therefore advised that a revision of
the above referred Government Orders may be
considered in consonance with the Annexure-1 of the
RRMs letter. The overall merit be based on the
performance/rank obtained by the cadets in the
entrance examination. Participation in all other NCC
activities be incentivized as per directions of RRM
letter as mentioned in Para 4 above."
19.6. In pursuance thereof, the State Government amended
the 2017 Rules by G.O.Ms.No.75, dated 04.07.2023, and
has provided grace marks to the extent of 7% to the
candidates participating in Republic Day Camp. Similarly,
it provided grace marks to the extent of 5% to the
candidates participating in Thal Sainik Camp (TSC)/Vayu
Sainik Camp (VSC)/Nau Sainik Camp (NSC). It also
provided 3% grace marks to the candidates holding NCC-B
certificate.
19.7. It is relevant to note that Rule 3(IV)(c) contained in
the 2017 Rules provided for a wholesale reservation to the
extent of 1% in respect of the candidates holding NCC A, B
and C certificates. However, by amendment dated
04.07.2023, only grace marks have been provided in
respect of NCC-B certificate holders. It is noteworthy that
NCC-B certificate can be obtained in intermediate level
which is the qualifying examination for appearance in the
NEET UG examination. Therefore, grant of grace marks in
respect of the candidates who hold NCC-B certificate is
linked to participation in the activities of NCC up to
intermediate level which is the qualifying examination.
Thus, the classification has a reasonable nexus with the
object of rule that is to provide reservation to the
candidates who have participated in the activities of NCC
up to the qualifying examination of NEET UG.
19.8. The candidates holding NCC A, B and C certificates
are not similarly situate as NCC A certificate can be
obtained up to 10th standard, whereas NCC B certificate
can be obtained up to 12th standard (intermediate). The
NCC C certificate can only be obtained at the graduation
level. Therefore, candidates holding NCC A, B and C
certificates belong to different age groups as well as their
education qualification is also different. Therefore, the rule
does not seek to treat the similarly situated persons
differently, but provides for reservation only in case of the
candidates who are involved in the activities of NCC up to
intermediate level i.e., qualifying examination. Therefore,
the contention that the impugned rule constitutes an
infraction of mandate contained in Article 14 of the
Constitution of India is misconceived.
19.9. For the aforementioned reasons, the issue No.(iii) is
answered in the negative and it is stated that the impugned
rule does not constitute an infraction of Article 14 of the
Constitution of India.
20. Issue No.(iv):
iv) Whether prescribing reservation or
awarding grace marks is a matter of
policy? If so, the scope of judicial review?
20.1. It is well settled legal proposition that the Courts in
exercise of powers of judicial review, do not ordinarily
interfere with the policy decision of the executive unless
the policy can be faulted on the grounds of mala fide,
unreasonableness, arbitrariness or unfairness etc. It has
further been held that arbitrariness, irrationality,
perversity and mala fide will render the policy
unconstitutional. It has also been held that Courts are not
expected to express their opinion as to whether in a
particular situation, a particular policy should have been
adopted or not, it is best left to the discretion of the State
(See Ugar Sugar Works v. Delhi Administration 13). In IIT,
Kharagpur v. Sautrik Sarangi 14, Hon'ble Supreme Court
has held that it has repeatedly emphasised that in the
matters such as devising admission criteria or other issues
engaging academic institutions, the Court's scrutiny in
judicial review has to be careful and circumspect. It has
further been held that unless shown to be plainly arbitrary
or discriminatory, the Courts would defer to the wisdom of
administrators in academic institutions who might devise
policies in regard to admission process, matters of
13 (2001) 3 SCC 635
14 2021 SCC OnLine SC 826
discipline or other general administrative issues concerning
the institution or university.
20.2. In the 2017 Rules, wholesale reservation to the extent
of 1% of seats was provided in respect of all categories of
students i.e., students who held NCC A, B and C
certificates. However, by way of amendment vide
G.O.Ms.No.75, dated 04.07.2023, instead of providing
wholesale reservation, only grace marks have been
awarded to the candidates who hold NCC-B certificate and
those who have either participated in the Republic Day
Camp, Thal Sainik Camp (TSC)/Vayu Sainik Camp
(VSC)/Nau Sainik Camp (NSC).
20.3. The aforesaid prescription of grace marks is based on
rational and reasonable criteria inasmuch as it seeks to
grant grace marks in respect of NCC-B certificate which
can be obtained up to intermediate level. The award of
grace marks is confined to NCC-B certificate holders who
have participated in the activities of NCC up to
intermediate level (12th standard) which is the qualifying
examination for NEET UG. The amendment to the 2017
Rules vide G.O.Ms.No.75, dated 04.07.2023, seeks to
exclude either the students who have not participated in
the activities of NCC up to intermediate level or have
obtained NCC 'C' certificate at the graduate level.
20.4. The matter of prescribing reservation for a category
candidates or for awarding of grace marks is a matter of
policy. This Court, therefore, has to be wary about
interfering with the policy and can interfere with the matter
of policy only if the same to be shown to be arbitrary,
discriminatory, mala fide, irrational or perverse. The policy
decision to dispense with reservation to the extent of 1% in
respect of candidates belonging to all categories of NCC
and to substitute it with awarding grace marks only to
candidates holding NCC-B certificate cannot be said to be
arbitrary, discriminatory, mala fide, irrational or perverse
and therefore, no interference is called for.
20.5. Accordingly, issue No.(iv) is answered.
21. Issue No.(v):
v) Whether the amendment in the 2017 Rules
has been made in respect of a non-existent
rule? If so, its effect?
21.1. It is well settled legal proposition that if an authority
has a power under the law, merely because while
exercising that power, the source of power either is not
specifically referred to or a reference is made to a wrong
provision of law, that by itself does not vitiate the exercise
of power, so long as the power exists and can be traced to a
source available in law. (See N. Mani v. Sangeetha
Theatre 15 and Cantonment Board v. Jagat Pal Singh
Cheema 16). Thus, if power to amend or to pass an order is
available to an authority, an amendment or order would
not be invalid merely because a wrong provision is referred
in the amendment or order.
21.2. In the instant case, the 2017 Rules have been framed
in exercise of powers under Section 3 read with Section
15(1) of the Telangana Educational Institutions (Regulation
15 (2004) 12 SCC 278
16 (2012) 8 SCC 189
of Admission and Prohibition of Capitation Fee) Act, 1983.
The aforesaid provisions empower the State Government to
frame the rules. Therefore, the source of power to frame
the rules can be traced to Section 3 and Section 15(1) of
the Telangana Educational Institutions (Regulation of
Admission and Prohibition of Capitation Fee) Act, 1983,
which has not been assailed in these writ petitions. Rule
3(IV)(c) provided for reservation to the National Cadet
Corps to the extent of 1%. However, by G.O.Ms.No.75,
dated 04.07.2023, in Rule 4 and after clause (iii), namely
4(iii)(a) is sought to be added. However, learned Additional
Advocate General fairly submitted that inadvertently,
instead of making a reference to Rule 3(IV)(c), reference has
been made to Rule 4(iii)(a). The aforesaid incorrect
reference will not invalidate the rule. The amendment by
G.O.Ms.No.75, dated 04.07.2023, has been made by
deleting Rule 3(IV)(c) and instead of Rule 3(IV)(c), Rule
4(iii)(a) has been substituted. It has to be read accordingly.
Therefore, the contention that the amendment is made in
respect of a non-existent rule does not deserve acceptance.
21.3. The issue No. (v) is answered accordingly.
(viii) CONCLUSION:
22. In view of the preceding analysis, we do not find any
merit in the writ petitions. The same fail and are hereby
dismissed.
Miscellaneous applications pending, if any, shall
stand closed. However, there shall be no order as to costs.
______________________________________
ALOK ARADHE, CJ
______________________________________
T.VINOD KUMAR, J
11.09.2023
Note: LR copy to be marked.
B/o.
vs/pln
