text:
The gravamen of grievance and the substratum of discontent of the petitioners in this writ petition, preferred under Article 32 of the Constitution of India, is that though the primary eligibility criteria for appearing in the super-specialty entrance examination conducted in different States in India for admission to D.M. (Doctorate of Medicine) and M.Ch. (Masters of Chirurgiae) course regard being had to the purpose that it endows the students an excellent opportunity to prosecute super specialty subjects and to fulfill their aspirations for a bright and vibrant career as well as to serve the society in the institutes recognized by the Medical Council of India (MCI) and most of the States, namely, Maharashtra, Uttar Pradesh, Gujarat, Rajasthan, Delhi, Karnataka, Kerala, West Bengal, Bihar and Haryana, conduct the entrance examination for the eligible candidates from All Over India and permit them to appear in the entrance examination, yet the States like, Andhra Pradesh, Telangana and Tamil Nadu, confine the eligibility only to the candidates having domicile in their respective States.
The fall out of the restriction is that candidates having the domicile in the said States can appear in other States' entrance examination without any restriction and compete with other candidates, and the said situation creates a clear disparity, and further a state of inequality has been allowed to reign in the aforesaid three States.
The dissatisfaction is further accentuated by asserting that the institutes with super-specialty courses are distributed all over India in a heterogeneous manner and the States like, Punjab, Madhya Prades, Chhatisgarh, Manipur, Arunachal Pradesh, Nagaland, Mizoram, Tripura, Sikkim, Uttarakhand are not having any government institutes offering super- specialty courses and the candidates from the said States have to depend on the other States' entrance examinations to seek a career in the discipline they are interested, but for the restriction imposed by the States like, Andhra Pradesh, Telangana and Tamil Nadu, they are deprived of the opportunity to participate in the entrance examination and that invites the frown of Articles 14 and 16 of the Constitution of India.
2. It is urged in the writ petition that the restraint imposed by the aforesaid three States amounts to reservation in respect of the post- graduate level; and as far as the super-specialty courses are concerned, the question of reservation based on residence or institutional preference is totally impermissible, for merit cannot be compromised by making reservation on the consideration, like residential requirement, as that would be absolutely against the national interest and plays foul of equality clause engrafted in the Constitution.
It is put forth that the States of Andhra Pradesh and Telangana have drawn support from the Presidential order, namely, Andhra Pradesh Educational Institutions (Regulations and Admissions) order 1974 (for short "the Presidential Order") issued under Article 371-D of the Constitution and G.O.P. No.646 dated 10th July, 1979 issued by the State of Andhra Pradesh (for short, 'the 1979 circular'), which are really not applicable to the super- specialty courses, for the legal system which prevails throughout the territory of India is a singular and indivisible one and Article 14 lays a clear postulate for conferment of equal opportunity throughout the nation.
It is asseverated that the reservations made by the States of Andhra Pradesh, Telangana and Tamil Nadu, ushers in a state of inequality by putting the residents of the said States in one class solely on the foundation of domicile and others in a different category altogether without any rationale and, therefore, the entire action smacks of arbitrariness and unreasonableness.
3. On the basis of aforesaid assertions prayers have been made to issue a command to the Respondent Nos.1 and 6 i.e. the Secretary, Ministry of Health and Family Welfare, Union of India and the Medical Council of India, respectively, to allow the petitioners to appear in the entrance examination conducted by the respondent Nos.3 to 5 i.e. the States of Tamil Nadu, Andhra Pradesh and Telangana for the year 2015-2016 for the super- specialty courses and further to issue a writ of mandamus directing the respondent Nos.1 and 6, as well as the respondent No.2, the Director General of Health Services of the Union of India, to conduct a common entrance test for admission to super-specialty courses, like DM/M.Ch. at All India Level, and for certain other ancillary reliefs.
4. A counter affidavit has been filed by the State of Andhra Pradesh contending, inter alia, that the claim of the petitioners to appear in the entrance test conducted by the State of Andhra Pradesh for admission into the medical super-specialty courses is contrary to the scheme of the Presidential Order and the 1979 circular. It is set forth in the counter affidavit that the two categories of institutions, namely, State wide educational Institutions and Non-State wide educational Institutions (Local Institutions) existed in the State of undivided Andhra Pradesh as per the Presidential Order and further clarified by 1979 circular all professional under-graduate and post-graduate courses are covered under the aforesaid two categories of institutions.
It is contended that the erstwhile State of Andhra Pradesh was divided into three local areas that came under Andhra University, Osmania University and Sri Venkateswara University for the purpose of admission into the educational institutions. Subsequent to the bifurcation of the State, the Andhra University area and Sri Venkateswara University area have come under the territory of State of Andhra Pradesh and the Osmania University area has come under the State of Telangana and 85% of the seats are reserved for the local candidates in each University area and the said system is to remain in vogue for a period of ten years. A reference has been made to paragraph 3 of the Presidential Order, indicating the division of the local areas.
There is also reference to paragraphs 5 and 7 of the Presidential Order, which indicate that the reservations are available for the local candidates in the University areas in Non-State-wide educational institutions and State-wide educational institutions. Placing reliance on the same it is asserted that admissions upto 85% of Non-State-wide seats shall be reserved in favour of the local areas as per procedure specified in the 1979 circular as amended from time to time and remaining 15% seats are to be treated as unreserved seats for the Non-State candidates who have qualified in the Entrance Test.
Elaborating the same, it is contended that admission upto 85% State-wide seats shall be reserved in favour of Andhra and Nagarjuna University, Osmania and Kakatiya University and Sri Venkateswara University in the ratio 42:36:22 respectively as per the procedure specified as per the 1979 circular. It is highlighted that paragraph 4 of the Presidential Order, defines the local candidate in reference to a local area and how the remaining 15% unreserved seats have to be dealt with. In essence, it is the stand of the State of Andhra Pradesh that according to Six Point Formula of the Constitution of India, as amended by 32nd Amendment, inserting Article 371-D, special provisions have been made in respect of the State of Andhra Pradesh which provide equal opportunities in different parts of the State in the matter of public employment and education.
To bolster the stand that there is no provision for admission to the candidates of other States except the candidates belonging to the State of Andhra Pradesh, emphasis is laid on the schematic context of the Presidential Order and the 1979 circular and further it is reiterated that in view of the special status conferred on the State by the constitutional norms of equality which has been assiduously attempted to build is sans substance as per the Presidential Order read with 1979 circular.
5. The State of Telangana has also filed a counter affidavit wherein it has been stressed that the Presidential Order, as well as the 1979 circular are protective in nature and a distinction has been drawn between the local candidates and reservation for local candidates; and the candidates who are eligible to apply for admission in respect of the remaining 15% of the unreserved seats. It is urged that the 15% of unreserved seats as per the Presidential Order and the circular issued by the State Government in 1979, do not include the candidates from other States. The other grounds which have been put forth in the counter affidavit need not be stated because they are in a way repetition of the stand taken by the State of Andhra Pradesh.
6. The State of Tamil Nadu has also filed a counter affidavit, but we shall not refer to the same in praesenti. At the very outset, we would like to make it absolutely clear that when we reserved the matter, we had mentioned in our order that the controversy relating to the State of Tamil Nadu shall be taken up after the judgment is pronounced in respect of the States of Andhra Pradesh and Telangana.
7. We have heard Ms. Indu Malhotra and Mr. B.H. Marlapalle, learned senior counsel for the petitioners, Mr. Mukul Rohatgi, learned Attorney General for Union of India, Mr. H.P. Raval, learned senior counsel, along with Mr. S. Udaya Kumar Sagar, learned counsel for the State of Telangana, Mr. Guntur Prabhakar, learned counsel for the State of Andhra Pradesh and Mr. Gaurav Sharma, learned counsel for the Medical Council of India.
8. It is submitted by Ms. Indu Malhotra, learned senior counsel appearing for the petitioners that though Article 371-D of the Constitution of India makes special provisions for the State, yet that would not extend to cover reservations as regards the super-specialty courses where merit alone matters as has been held by the Constitution Bench in Dr. Preeti Srivastava and Another vs. State of M.P. and Others. It is urged by her that equality before law and equal protection of the law serve the purpose of excellence and if merit is compromised on the bedrock of geographical boundary, the basic normative principle of equality would be marred. Learned senior counsel would further contend that the residential requirement or institutional preference should not be allowed to have any room in this category of admissions in view of the pronouncements in Nikhil Himthani vs. State of Uttarakhand and Vishal Goel vs. State of Karnataka. It is astutely canvassed by her that the principle pertaining to domicile was laid down more than a decade back in Saurabh Chaudri vs. Union of India, but both the States, namely, Andhra Pradesh and Telangana have flagrantly violated the said principle and given an indecent burial to the guidelines issued by the Medical Council of India.
9. Mr. B.H. Marlapalle, learned senior counsel appearing for the impleaded petitioners would submit that Rule 9 of the Medical Council of India Postgraduate Medical Education Regulations, 2000, as amended on 21st December, 2010, deals with the selection of post-graduate students by all the medical educational institutions all over the country and these Regulations are indubitably binding on all the universities in both the States and they cannot be allowed to violate the same.
It is his further submission that the Presidential Order, issued under Article 371-D of the Constitution is primarily aimed at removing disparities between the three different regions of Andhra Pradesh, namely, Andhra, Rayalaseema and Telangana, as prevailing at the time of its formation of the State of Andhra Pradesh consequent upon the States Reorganization Act, 1956, in respect of employment and education and the term "education" as finds place in Clause 2(1)(a) of the Presidential Order, defines the term "available seats", which means number of seats in a course for admission at any time after excluding those reserved for candidates from outside the State.
Learned senior counsel has referred to Clause 3 of the Presidential Order and highlighted that whatever manner the interpretation is placed on those clauses, 15% has to be demarcated as non-local quota or available for the candidates who are not residents of the State. He has emphatically argued that clause 2(1)(a) of the 1979 circular, is only a clarifactory one and hence, it cannot convey that the candidates who have passed the examination from any State other than Andhra Pradesh/Telangana, do not fall in the category of candidates from outside the State. That apart, it is urged that in the name of clarification it cannot place an erroneous interpretation on the Presidential Order, for that will make the said Order unworkable, and also would cause violence to the language employed in the Presidential Order.
10. Mr. Marlapalle has referred to paragraph 11 of the 1979 circular to buttress his stand that the procedure of implementation of reservation is clear to the extent that 15% reservation will be meant for non-local candidates. He has given an example by stating that if there are 12 seats available for a particular super-specialty course in a university, the available seats will be arrived at by deducting the national quota, that may be 2 seats, and from the remaining 10 available seats, 85% will be earmarked for the local candidates and remaining 15% for those who are listed in Clause 2 of the Presidential Order would go to non-local quota. He has placed reliance on the prospectus issued for the academic year 2015- 2016 by Dr. N.T.R. University of Health Sciences, Andhra Pradesh, especially on Clause 3.8 to 3.8.6. Learned senior counsel has also drawn inspiration from Rule 2(2) of the Rules for Admission to Post Graduate Courses in the Medical Colleges in the State of Andhra Pradesh, 1983. Learned senior counsel has criticized that the prospectus of the academic year 2015-2016 of the universities, namely, Dr. N.T.R. University of Health Sciences, Andhra Pradesh and Nizam's Institute of Medical Sciences, which do not provide for All India quota and only provide for the "available seats" and, in that backdrop it is suggested that the Medical Council of India should issue appropriate directions under the approval of the Government of India to earmark national quota outside the State of Andhra Pradesh and Telangana in the super-specialty post-graduate medical courses; and for the current academic year, the Medical Council of India should be directed to consider to create additional seats for national quota in respect of these two States so that the Presidential Order is properly implemented.
11. Mr. Marlapalle has submitted that to understand the controversy in the proper perspective of the Presidential Order and how the States have worked it out, the examination of certain Acts, Rules and Regulations, namely.
(v) Medical Council of India Postgraduate Medical Education Regulations, 2000, as amended from time to time are necessary .
We must immediately state that their relevance shall depend upon our eventual analysis of the constitutional provision, the Presidential Order and the 1979 circular issued by the State of Andhra Pradesh.
12. Mr. Mukul Rohatgi, learned Attorney General appearing for the Union of India, would contend that Article 371-D of the Constitution enables the President of India to issue certain category of orders and in exercise of that power the Presidential Order had been issued in relation to the State of Andhra Pradesh which pertains to the field of education and that covers the super-specialty courses; and further the 1979 circular issued by the State Government is not an amendment to the Presidential Order, but only postulates the manner and method of implementation.
It is canvassed by him that there can be no cavil that merit is the rule in case of super- specialty courses and there cannot be any reservation, as has been held in Preeti Srivastava (supra) and subsequent judgments, but this Court has consistently held that as far as the State of Andhra Pradesh is concerned, the super-specialty courses would fall beyond the said concept. It is propounded by Mr. Rohatgi that the submission that 15% would go to the students who have no domicile in the State, should go to candidates of other States, is absolutely incorrect in view of the procedure for implementation of the Presidential Order, which has been elaborately determined by the State of Andhra Pradesh in 1979.
He has commended us to the decisions in Dr. Pradeep Jain and Others vs. Union of India and Others, Reita Nirankari vs. Union of India, Dr. Dinesh Kumar vs. Motilal Nehru Medical College, C. Surekha vs. Union of India and Dr. Fazal Ghafoor vs. Union of India and Others. Needless to say, the learned Attorney General has submitted that the principles stated in the said authorities shall apply on all fours to the State of Telangana.
13. Mr. Harin P. Raval, learned senior counsel, along with Mr. S. Udaya Kumar Sagar, learned counsel, appearing for the State of Telangana have adopted the submissions advanced by the learned Attorney General.
for direct recruitment to posts in any cadre under any local authority within the State; and for the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government; specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made - in the matter of direct recruitment to posts in any such cadre referred to in sub-clause (b) as may be specified in this behalf in the order; in the matter of admission to any such University or other educational institution referred to in sub-clause (b) as may be specified in this behalf in the order, to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such cadre, University or other educational institution, as the case may be."
"(2) It extends to the whole of the State of Andhra Pradesh. (3) It shall come into force on the 1st day of July, 1974.
(a) "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.
(b) "Local area", in respect of any University or other educational institution, means the local area specified in paragraph 3 of this Order for the purposes of admission to such University or other educational institution.
(d) "State Government" means the Government of Andhra Pradesh.
(e) "State-wide educational institution" means an educational institution or a department of an educational institution specified in the Schedule of this Order.
(f) "State-wide University" means the Andhra Pradesh Agricultural University constituted under the Andhra Pradesh Agricultural University Act, 1963 (Andhra Pradesh Act 24 of 1963), or the Jawaharlal Nehru Technological University constituted under the Jawaharlal Nehru Technological University Act, 1972 (Andhra Pradesh Act 16 of 1972).
(2) Any reference to any District in this Order shall be construed as a reference to the area comprised in that District on the 1st day of July, 1974.
(3) The General clauses Act, 1897(10 of 1897) applies for the interpretation of this order as it applies for the interpretation of a Central Act.
(1) The part of the State comprising the district of Srikakulam, Visakhapatnam, West Godavari, East Godavari, Krishna, Guntur and Prakasam shall be regarded as the local area for the purposes of admission to the Andhra University, (the Nagarjuna University) and to any other educational institution (other than a State-wide University or State- wide educational institution) which is subject to the control of the State Government and is situated in that part.
(2) The part of the State comprising the districts of Adilabad, Hyderabad, Karimnagar, Khammam, Mahaboobnagar, Medak, Nalgonda, Nizamabad and Warangal shall be regarded as the local area for the purposes of admission to the Osmania University, (the Kakatiya University) and to any other educational institution(other than a State-wide University or State-wide Educational institution) which is subject to the control of the State Government and is situated in that part.
(3) The part of the State comprising the districts of Anantapur, cuddapah, Kurnool, Chitoor and Nellore shall be regarded as the local area for the purposes of admission to Sri Venkateswara University and to any other educational institution (other than a State-wide University or State-wide educational institution) which is subject to the control of the State Government and is situated in that part.
(a) if he has studied 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 he appeared or, as the case may be, first appeared in the relevant qualifying examination; or.
(b) Where during the whole of any part of the four consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared for the relevant qualifying examination, he has not studied in any educational institution. If he has 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 he appeared or as the case may be first appeared.
(2) A candidate for admission to any course of study who is not regarded as a local candidate under sub-paragraph (1) in relation to any local area shall.
(a) if he has studied in educational institutions in the State for a period of not less than seven consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared for the relevant qualifying examination, be regarded as a local candidate in relation to.
(i) such local are where he has studied for the maximum period out of the said period of seven years; or.
(ii) Where the periods of his study in two or more local areas are equal, such local area where he has studied last in such equal periods; or.
(b) if during the whole or any part of the seven consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared for the relevant qualifying examination, he has not studied in the educational institution in any local area, but has resided in the State during the whole of the said period of seven years be regarded as a local candidate in relation to.
(i) such local area where he has resided for the maximum period out of the said period of seven years, or.
Explanation - For the purpose of this paragraph.
(b) any period of his study in a State-wide University or a State wide educational institution, shall be disregarded.
(1) Admissions to eighty-five percent of the available seats in every course of study provided by the *(Andhra University, the Nagarjuna University, the Osmania University.** the Kakatiya University or Sri Venkateswara University) or by any other educational institution (other than a State-wide University or a Statewide educational institution) which is subject to the control of the State Government shall be reserved in favour of the local candidates in relation to the local area in respect of such University or other educational institution.
(2) While determining under sub-paragraph (1) the number of seats to be reserved in favour of local candidates any fraction of a seat shall be counted as one: Provided that there shall be at least one unreserved seat.
6. Reservation in Statewide Universities and State-wide educational institutions (1) Admissions to eighty five percent of the available seats in every course of study provided by a State-wide University or a State- wide educational institution shall be reserved in favour of and allocated among the local candidates I relation, to the *(Local areas specified in sub-paragraph(1), sub-paragraph(2) and sub-paragraph(3) of paragraph 3, in the ratio of 42:36:22 respectively: Provided that this sub-paragraph shall not apply in relation to any course of study in which the total number of available seats does not exceed three.
(2) While determining under sub-paragraph(1) the number of seats to be reserved in favour of the local candidates, any fraction of a seat shall be counted as one. Provided that there shall be at least one unreserved seat.
(3) While allocating under sub-paragraph(1) the reserved seats among the local candidates in relation to the different local areas, fractions of a seat shall be adjusted by counting the greatest fraction as one and, if necessary, also the greater of the remaining fractions as another; and, where the fraction to be so counted cannot be selected by reason of the fractions being equal, the selection shall be by lot.
Provided that there shall be at least one seat allocated for the local candidate in respect of each local area.
7. Filling of reserved vacant seats.- 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 seat shall be filled as if it had not been reserved.
(1) the president may, by order, require the State Government to issue such directions as may be necessary or expedient for the purpose of giving effect to this Order to any University or to any other educational institution subject to the control of the State Government; and the University or other educational institution shall comply with such directions.
(2) The State Government may, for the purpose of issuing any directions under sub-paragraph (1) or for satisfying itself that any directions issued under that sub-paragraph have been complied with require, by order in writing, any University or any other educational institution subject to the Control of the State Government to furnish them such information, report or particulars as may be specified in the order; and the University or other educational institution shall comply with such order."
16. The State Government issued the circular in 1979. The relevant paragraphs of the circular deserve to be reproduced.
"2. The Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 provides for reservation of seats in favour of local candidates in courses of study provided by the Universities and other educational institutions subject to the Control of the State Government. Paragraph 9 of the order lays down that the provisions of that order shall have effect notwithstanding anything contained in any statute ordinance, rule, regulation or other order(whether made before or after the commencement of the Order) in respect of admissions to any University or any other educational institutions subject to the control of the State Government.
Paragraph 10 of the said Order, however, declares that nothing in the Order shall affect the operation of any provisions made by the State Government or other competent authority (whether before or after the commencement of the Order) in respect of reservations in the matter of admission to any University or other education Institution in favor or women, socially and educationally backward classes of citizens, the Scheduled Castes and the Scheduled Tribes in so far as such provisions are not inconsistent with the Order.
(b) where during the whole or any part of the four consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared for the relevant qualifying examination, he has not studied in any educational institution, if he has 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 he appeared, or, as the case may be, first appeared.
4. It must be noted that para 4(a) as extracted above covers the cases of those candidates who studied in an educational institution or educational institutions for a period of not less than four consecutive academic years ending with the academic year in which he appeared or, as the case may be, first appeared in the relevant qualifying examination, while para 4 (b) applies to the case of other candidates.
For purposes of para 4(a) educational institution has been defined as a University or any educational institution recognized by the State Government, a University or other competent authority. The eligibility of a candidate who has studied during any part of the four years period in an unrecognized institution will have to be dealt with the under para 4(b).
While considering the eligibility of a candidate to be regarded as a local candidate, under paragraph 4(a) of the Order by virtue of four consecutive years of Study in a local area, it should be noted that in reckoning the consecutive academic years of study, any interruption in the period of his study ,by reason of his failure to pass any examination shall be disregarded. For instance, a candidate who has studied in the IXth and Xth Classes and the Junior and Senior Intermediate Classes in institutions of the sale local area with a break of one year after the Xth class on account of failure to pass the Xth Class examination at the first attempt, shall be regarded as a local candidate in relation to that local area for admission to a degree course in any institution in that area.
5. The above definition of the local candidate (as it stood until it was amended with effect from 25-11-1976) had given rise to certain situations wherein some of the candidates belonging to the State of Andhra Pradesh who have studied or resided throughout within the State came to be regarded as non-local candidates in all the local areas within the State. In order to avoid such a situation, the Government of India have since issued the Andhra Pradesh Educational Institutions (Regulation of Admission) Second Amendment Order, 1976 amplifying the said definition in paragraph 4 of the Order 6. The Andhra Pradesh Educational Institutions (Regulation of Admissions) Second Amendment Order, 1976 inserts a new sub-paragraph in the said 1974 Order-viz., sub-paragraph (2) to Paragraph 4 thereby making provision for considering the claims of persons, who under the old definition would have become non-local in relation to all local areas in the State.
According to sub-para (2) (a) of Para 4, after amendment, if such a candidate has studied in educational institutions in the State for a period of not less than seven consecutive academic years ending with the academic year in which he appeared on, as the case may be, first appeared for the relevant qualifying examination, he shall be regarded as a local candidate in relation to that local area where he had studied for the longest period out of the said period of seven years. In the event of the periods of study in two or more local areas being equal he shall be regarded as local candidate in relation to that local area where he studied during the last of the said equal periods.
Clause (b) to sub-para (2) applies to a candidate who, during the whole or any part of the seven consecutive academic years ending with the academic year in which he appeared or as the case may be, first appeared for the relevant qualifying examination has not studied in educational institutions in any local area, but has resided in the State during the whole of the said seven years, the candidate shall be regarded as a local candidate in relation to that local area where he has resided for the longest period out of the said seven year period.
This residence test will be applies to candidates in whose cases there is a gap in study, occasioned otherwise than by reason of failure to pass in an examination, in the prescribed full term of seven years immediately preceding the relevant qualifying examination. It has also been provided that where the periods of residence in two or more local areas are equal, such a candidate shall be regarded as a local candidate in relation to the local area where he resided last in such equal periods.
The application of the liberalized definitions made through the Second Amendment Order are illustrated by the examples given in the Annexure - I.
9. The Government have directed that for the purpose of admission into educational institutions, those who claim to be local candidates with reference to para 4(1) (a) or para 4(2) (a) of the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 should produce evidence in the form of study certificates issued by the heads of the educational institutions concerned indicating the details of the year or years in which the candidate has studied in an educational institution or institutions in such local area for a period of not less that four or seven consecutive academic years ending with academic year in which he appeared or, as the case may be, first appeared in the relevant qualifying examination. Those who do not qualify as local candidates under para 4(1) (a) or 4(2) (a) but claim to qualify by virtue of residence under para 4(1)(b) or para 4 (2) (b) of the said order should produce a certificate issued by an Officer of the Revenue Department not below the rank of Tahsildar in the form annexed vide Annexure - II.
(i) All local candidates defined in the Presidential Order.
(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 recognized by the Government a University or other competent authority and similar other quasi-Government institutions within the State.
12. It has been decided that persons in the employment of this State or Central Government, Public Sector Corporations, Local Bodies, Universities and other similar Quasi-Public Institutions, within the State may be treated as eligible to apply for admission to the part-time course of study offered by the educational institutions in the State subject to the control of the state government as candidates belonging to the State of Andhra Pradesh.
13. The Government consider that in the large majority of cases falling under the above categories, "nativity" may not be in doubt. The Heads of Educational Institutions or other admission authorities may call for appropriate certificates of study/residence or employment in cases of doubt."
We shall, as we are obliged to in the instant case, proceed to deal with the purport of the said circular on the bedrock of the Presidential Order. Be it clarified, we are not called upon to decide upon the constitutional validity of the circular, but to understand the purport of the same through the interpretative purpose.
(ii) to provide "equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public service".
74. To achieve this primary object, clause (1) of Article 371-D empowers the President to provide by order, "for equitable opportunities and facilities for the people belonging to different parts of the State in the matter of public employment and in the matter of education". Clause (2) of the article is complementary to clause (1). It particularises the matters which an order made under clause (1) may provide.
For instance, its sub- clause (c)(i) enables the President to specify in his Order, "the extent to which, the manner in which and the conditions subject to which", preference or reservation shall be given or made in the matter of direct recruitment to posts in any local cadre under the State Government or under any local authority. Sub-clause (c) further makes it clear that residence for a specified period in the local area, can be made a condition for recruitment to any such local cadre. Thus, clause (4) also is directly designed to achieve the primary object of the legislation."
18. After so stating the Constitution Bench has ruled that the evil that was sought to be remedied pertained to inequitable opportunities and facilities for the people belonging to different parts of the State of Andhra Pradesh in matters of public employment and in the matter of education and had no causal nexus whatever to the independence of the High Court and subordinate judiciary which the Founding Fathers have with solemn concern vouchsafed in Articles 229 and 235 of the Constitution. The Court also opined that the public agitation which led to the enactment of Article 371-D did not have any grievance against the basic scheme of Chapters V and VI in Part VI of the Constitution. The Court interpreting the Article in entirety eventually expressed the view that the Parliament never had intended to confer a wide, liberal interpretation which will defeat or render otiose the scheme of Chapters IV and V, Part VI particularized in Articles 229 and 235 of the Constitution.
"We are therefore of the view that so far as admissions to post-graduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post-graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post-graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all-India basis."
20. After the said judgment was delivered, the said three-Judge Bench passed a clarificatory order in Reita Nirankari (supra) wherein the Court considered three aspects one of which is relevant for the present case.
We reproduce the same:- "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."
21. The aforesaid clarificatory order has its own significance, for it undeniably excludes the applicability of the domicile test stated in Dr. Pradeep Jain (supra) in respect of the State of Andhra Pradesh. At this stage, it would be appropriate to refer to the case of C. Surekha (supra). The said case arose from Osmania University in Andhra Pradesh. The petitioner therein had passed from the said University and he intended to take the All India Entrance Examination for admission to P.G. medical course in 1988. He had challenged the constitutional validity of Article 371-D(2) (b) (iii) and C (ii) of the Constitution as well as the Presidential Order as a consequence of which the students of Andhra Pradesh have been excluded for competing in the aforesaid examination.
The two- Judge Bench referred to the decisions in Dr. Pradeep Jain (supra), Reita Nirankari (supra), noted the stand of the Union of India and the Andhra Pradesh in their respective counter affidavits that had asserted that institutions in the State of Andhra Pradesh were kept out of from the purview of the scheme in view of the decision rendered in the case of Dr. Pradeep Jain (supra).
"The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force."
5. ....."The Presidential Order of 1974 defines "available seats" and "local area" as also "statewide educational institutions" in sub-clauses (a), (b) and (e) of clause 2. Clause 3 describes the three local areas. Clause 9 gives overriding effect to the Presidential Order. Under the Presidential Order, admission to the educational institutions is limited only to local and nonlocal candidates. It does not contemplate of admission into educational institutions otherwise. The contention of Mr Choudhary that if the Presidential Order has got to be given effect to in its true spirit, the scheme in Dr Pradeep Jain case cannot, consistently with the Presidential Order, be implemented cannot be brushed aside and bears serious examination on certain important aspects. If the 15 per cent seats are not treated as reserved in terms of the Presidential Order and are intended to go to those who qualify at the All India Entrance Examination it is a statable possibility that the Presidential Order might be diluted. It may be doubtful if, in ascertaining the import of 'available seats', it would be permissible to deduct the 15 per cent seats for non-locals applying the formula of Dr Pradeep Jain case.
We are inclined to think that the contention advanced by Mr Choudhary on behalf of the respondent-State that within the ambit of the Presidential Order, the scheme adopted by this Court in Dr Pradeep Jain case is eminently arguable and raises certain important issues. It is, however, not necessary to pronounce on this question finally as the petitioner, admittedly, has already been provided admission in one of the Medical Colleges.
6. Before we part with the case we would, however, like to indicate that the Scheme in Dr Pradeep Jain case is, in the opinion of this Court, in national interest as also in the interest of the States. Competition at the national level is bound to add to and improve quality. Andhra Pradesh students on the whole are not at all backward and we are of the opinion that they would stand well on comparative basis. It is for the State and the Central Governments, apart from the legal issues involved to decide whether in the general interest of the State, the scheme in the Presidential Order should either be so understood as to permit and assimilate the Pradeep Jain principle or should be explained, if necessary, by an appropriate amendment of the Presidential Order. We would, however, leave it to the respondents to take their decision in the matter. We would not like, therefore, to pronounce on the legal question finally in this case.
23. Relying on the said passages, it is submitted by Mr. Marlapalle, learned senior counsel that the observations made in 1988, despite expiry of two decades and seven years, has not been taken note of by the authorities which indicates an apathetic attitude. Learned senior counsel would contend that the State of Andhra Pradesh by no stretch of imagination can be regarded as an educationally backward region compared to rest of the country. It is also contended by him that the Presidential Order was issued at a stage feeling the need of the State but the same is not the condition after passage of more than 40 years.
In fact, submits Mr. Marlapalle, renouncing the merit criteria on the domicile basis especially in respect of post graduate and super speciality courses would tantamount to denouncing the concept of merit which has been enshrined commencing from Dr. Pradeep Jain (supra) to many a judgment rendered thereafter in respect of the medical education. The protective affirmation meant for the State of Andhra Pradesh by the Presidential Order issued in 1974 has to be interpreted in such a manner so that the 50% which has been demarcated should go to otherwise meritorious candidates who have taken All India Entrance Examination for super speciality courses. The concept of continuity of education, its progress and the rise in time, submits Mr. Marlapalle, requires this Court to give a broader interpretation to the 15% quota and not to be guided by the 1979 clarificatory circular which is otherwise indefensible in law.
24. It is apt to note here that Mr. Marlapalle has commended us to the authority in Dr. Dinesh Kumar (supra), but we need not refer to the same as it dealt with the reservation on the domicile basis, regard being had to the principle stated in Dr. Pradeep Jain (supra) and as far as the State of Andhra Pradesh (undivided) is concerned, the said authority was not made applicable as stated in Reita Nirankari (supra).
25. At this juncture, it is absolutely necessitous to refer to a three- Judge Bench decision in NTR University of Health Sciences v. G. Babu Rajendra Prasad and Anr. In the said case, the question that was posed was whether the Government of Andhra Pradesh while framing the 1979 circular in terms of Presidential Order issued in 1974 under Article 371-D of the Constitution of India was bound to provide reservation for 15% of non-local seats, although reservation in terms of the policy decision had been taken in respect of the seats available for local candidates. It is worth mentioning here that the controversy had travelled to this Court questioning the validity of the policy of the State of Andhra Pradesh as regards the non-reservation of scheduled castes, scheduled tribes and backward classes within 15% that has been separately demarcated.
The learned Single Judge of the High Court had directed to reserve 15% seats reserved for the reserved category. The Division Bench in Letters Patent appeal noted the conflict of views in earlier Division Bench judgments and referred the matter to the Full Bench on the issue whether the reservations in terms of Article 15(4) of the Constitution of India in favour of scheduled castes, scheduled tribes and backward classes could be provided in respect of 15% of the unreserved seats under the Presidential Order, 1974.
"10. A bare perusal of the definition of local area read with paras 3, 4 and 5 of the Presidential Order, as referred to hereinbefore, it would be evident that 85% of the seats are reserved for local candidates in relation to local areas. So far as a university area is concerned, a local candidate in one particular university area would be a non-local one in another. The criteria for admission of a candidate in the superspeciality courses in the university on the ground of being local or non-local is, therefore directly referable to the university area and not the boundaries of the State of Andhra Pradesh.
11. ...... In the matter of admission, the Health University had followed the procedure provided in Annexure III of GOP No. 646 dated 10-7-1979 having regard to the fact that by reason of the Presidential Order, 1974 only 85% of the seats are reserved in favour of the local candidates which are required to be confined to the university area only. We, thus, do not find any legal infirmity in the action of the appellants herein in directing that 15% reserved for candidates of non-local area may be filled up only on merit.
12. Article 371-D of the Constitution of India contains a special provision applicable to the State of Andhra Pradesh only. 54% of seats are required to be filled up from open categories and 46% of seats are to be filled up from the reserved category candidates in each of the three regions from the medical colleges and engineering colleges. Having regard to the reservations made regionwise, indisputably 85% of seats are to be filled up from amongst local candidates whereas only 15% of seats are to be filled up from amongst outside candidates."
26. Be it noted, it was contended on behalf of the appellant therein that the High Court had committed a manifest error by directing for reservation of seats for reserved category from 15% open seats also on the ground that such a reservation would exceed 50% which is not permissible. The Court referred to the Presidential Order and eventually opined thus:- "In the event, the ratio of the impugned judgment of the High Court is given effect to having regard to the limited number of seats available by providing reservation of an additional seat, principle of reservation to the extent is 50% would be violated. Furthermore, it is not for the High Court to say as to the efficacy or otherwise of the policy of the State as regards providing for reservation for the reserved category candidates and in that view of the matter the High Court, in our opinion must be held to have committed a manifest error in issuing the impugned directions, as a result whereof percentage of reservation would exceed 46%. Such a direction by the High Court is not contemplated in law."
27. Though the said authority had understood local area and the boundaries of the State, it was instructive to refer to the said passage. It is clear that it was addressing the controversy as regards the 15% but dealing with the reservation of scheduled castes, scheduled tribes and other backward classes within the said 15% percentage in the context of instructions/circular of 1979 issued by the State Government.
The aforesaid decision makes it graphically clear that the 85% reservation has been in respect of local areas and non-locals area is directly referable to the University area. One has to bear in mind that the local areas and local candidates have been defined in the Presidential Order and it also empowers the State Government to issue appropriate directions for the purpose of giving effect to the Presidential Order. In pursuance of the power conferred in the said Presidential Order, the State Government has issued the Circular in 1979.
The Circular, as is manifest, reiterates the definitions of "local area" and "local candidates" and simultaneously it also lays the postulate the manner of implementation of reservation of local candidates as stipulated in the Presidential Order. As far as 15% of the available seats which are kept unreserved in terms of Presidential Order, the State Government relies on the power conferred on it that the 15% of the available seats are kept unreserved subject to the control of the State Government. The State Government has clarified the position about the local candidates in respect of 15% as provided in the Presidential Order.
It covers certain categories but the cavil does not relate to the same. In fact, on a keen scrutiny, it is demonstrable that it engulfs certain categories which takes within its umbrella such candidates who are working in the State of Andhra Pradesh in certain State Government or Central Government or other public undertakings or the candidates whose spouses are in the employment of the State or Central Government or public sector corporation, etc. It does not refer to candidates who are from outside. That is the only interpretation which can be placed on the circular. It is the situation in vogue in the State of Andhra Pradesh since 1979 and in the absence of any challenge to the circular, there is no need to get into it. Therefore, reference to the other Acts, Rules, Regulations which have been so done by Mr. Marlapalle do not require to be dwelt upon.
28. One aspect that has been highlighted by Mr. Marlapalle that almost 27 years back, this Court in C. Surekha (supra) had expressed the view that the scheme indicated in Dr. Pradeep Jain (supra) is in national interest and competition at the national level is bound to add to and improve quality and Ahdra Pradesh students on the whole are not at all backward and they would stand well on the comparative basis. The need for assimilation of the principles stated in Dr. Pradeep Jain (supra) was felt and it was observed that there should be an appropriate amendment of the Presidential Order. However, as the Court cannot do it, it left to the competent authorities.
29. In this context, the decisions that have been cited by the learned counsel for the petitioner become relevant. In Preeti Srivastava (supra), the Constitution Bench expressed that the object of Article 15(4) is to advance the equality of principle by providing for protective discrimination in favour of the weaker sections so that they may become stronger and may be able to compete equally with others more fortunate, but simultaneously one cannot ignore the wider interests of society while devising such special provisions.
The Court highlighted on the concept of national interest such as promoting excellence at the highest level and providing the best talent in the country with the maximum available facilities to excel and contribute to society which are also to be borne in mind. Analysing further, the majority stated thus:- "In the case of Dr Jagadish Saran v. Union of India this Court observed that at the highest scales of speciality, the best skill or talent must be hand-picked by selection according to capability. Losing a potential great scientist or technologist would be a national loss.
That is why the Court observed that the higher the level of education the lesser should be the reservation. There are similar observations in Dr Pradeep Jain v. Union of India. Undoubtedly, Dr Pradeep Jain v. Union of India did not deal with reservation in favour of the Scheduled Castes and the Scheduled Tribes. It dealt with reservation in favour of residents and students of the same University. Nevertheless it correctly extended the principle laid down in Dr Jagadish Saran v. Union of India to these kinds of reservation also, holding that at the highest levels of medical education excellence cannot be compromised to the detriment of the nation. Admissions to the highest available medical courses in the country at the superspeciality levels, where even the facilities for training are limited, must be given only on the basis of competitive merit. There can be no relaxation at this level."
30. In Saurabh Chaudri (supra), the core question that arose for consideration centered around the constitutional validity of reservation whether based on domicile or institution in the matter of admission into post-graduate courses in Government run medical colleges. In the said case, the court referred to the writ petition filed by the candidates who were residents of Delhi. They had joined various medical colleges within Delhi for undertaking their MBBS courses against the 15% all-India quota on being qualified in the All-India Entrance Examination. They intended to join medical colleges in Delhi for their post-graduate medical courses. They were issued admission forms regard being had to the decision in Parag Gupta (Dr.) v. University of Delhi. The University also informed them that the candidates would be entitled to admission in the post-graduate courses subject to the decision in the matter pending before this Court in Magan Mehrotra v. Union of India.
31. In Magan Mehrotra (supra) a three-Judge Bench of this Court held that reservation by way of institutional preference be maintained but also directed certain States to follow the pattern of institutional preferences as has been indicated in Dr. Pradeep Jain (supra). Delhi University issued a notification on the basis of the judgment rendered in Magan Mehrotra (supra). The writ petitioners assailed the notification issued by the Delhi University as reservation was made by way of institutional preference for admission to post graduate courses. After the decision was rendered in Magan Mehrotra (supra), a two-Judge Bench referred the matter to a three- Judge Bench which ultimately directed it to be placed before a five-Judge Bench. The reservation of any kind, namely, residence or institutional preference in the constitutional backdrop was the subject matter of assail. The first question posed for consideration was whether the reservation on the basis of a domicile is permissible in terms of Clause 1 of Article 15 of the Constitution of India. The Court referred to the decision in D.P. Joshi v. State of Madhya Bharat and State of U.P. v. Pradip Tandon, and answered the issue in the negative. The second issue that the Court addressed was whether reservation by way of institutional preference comes within the suspected classification warranting strict scrutiny test. The Court referred to Ram Krishna Dalmia v. Justice S.R. Tendolkar and various other authorities and opined that no case had been made out for invoking the doctrine of strict construction or intermediate construction.
The third issue that the Court dwelled upon was whether the reservation by institutional preference is valid. The Court referred to the authorities in Jagadish Saran (supra), Dr. D.P. Joshi (supra), Chitra Ghosh v. Union of India and various other decisions including that of Dr. Pradeep Jain (supra) and opined that in Dr. Pradeep Jain (supra) a distinction was made between the undergraduate course i.e. MBBS course and post-graduate medical course as also super specialist courses and, therefore, the said authority sought to strike a balance of rights and interests of concerned.
70. We, therefore, do not find any reason to depart from the ratio laid down by this Court in Dr Pradeep Jain. The logical corollary of our finding is that reservation by way of institutional preference must be held to be not offending Article 14 of the Constitution of India.
71. However, the test to uphold the validity of a statute on equality must be judged on the touchstone of reasonableness. It was noticed in Dr Pradeep Jain case that reservation to the extent of 50% was held to be reasonable. Although subsequently, in Dr Dinesh Kumar (II) case it was reduced to 25% of the total seats. The said percentage of reservation was fixed keeping in view the situation as then existing. The situation has now changed to a great extent. Twenty years have passed. The country has during this time produced a large number of postgraduate doctors. Our Constitution is organic in nature. Being a living organ, it is ongoing and with the passage of time, law must change. Horizons of constitutional law are expanding.
"We now come to Clauses 2 and 3 of the eligibility criteria in the Information Bulletin. Under Clauses 2 and 3, a domicile of Uttarakhand who has passed MBBS from a medical college of some other State having been admitted either through the 15% all-India quota or through the pre-medical test conducted by the State Government concerned has been made eligible for admission to a postgraduate medical course in the State quota. Obviously, a candidate who is not a domicile of Uttarakhand State is not eligible for admission to the postgraduate course under Clauses 2 and 3 of the eligibility criteria.
Preference, therefore is given only on the basis of residence or domicile in the State of Uttarakhand under Clauses 2 and 3 of the eligibility criteria and such preference on the basis of residence or domicile within a State has been held to be violative of Article 14 of the Constitution in Pradeep Jain v. Union of India and Magan Mehrotra v. Union of India.
33. In Vishal Goel (supra), the two-Judge Bench reiterated the principle laid down in Nikhil Himthani (supra).
34. At this juncture, we may also refer to the Constitution Bench decision in Faculty Association of All India Institute of Medical Sciences v. Union of India. In the said case issue arose about the applicability of reservation in respect of speciality and super speciality faculty posts in all-India Institute of Medical Sciences.
"22. Although the matter has been argued at some length, the main issue raised regarding reservation at the superspeciality level has already been considered in Indra Sawhney case by a nine-Judge Bench of this Court. Having regard to such decision, we are not inclined to take any view other than the view expressed by the nine-Judge Bench on the issue. Apart from the decisions rendered by this Court in Jagadish Saran case and Pradeep Jain case, the issue also fell for consideration in Preeti Srivastava case which was also decided by a Bench of five Judges. While in Jagadish Saran case and in Pradeep Jain case it was categorically held that there could be no compromise with merit at the superspeciality stage, the same sentiments were also expressed in Preeti Srivastava case as well.
23. In Preeti Srivastava case, the Constitution Bench had an occasion to consider Regulation 27 of the Post Graduate Institute of Medical Education and Research, Chandigarh Regulations, 1967, whereby 20% of seats in every course of study in the institute was to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes or other categories of persons, in accordance with the general rules of the Central Government promulgated from time to time.
The Constitution Bench came to the conclusion that Regulation 27 could not have any application at the highest level of superspeciality as this would defeat the very object of imparting the best possible training to selected meritorious candidates, who could contribute to the advancement of knowledge in the field of medical research and its applications. Their Lordships ultimately went on to hold that there could not be any type of relaxation at the superspeciality level."
35. Be it noted, the Court laid immense emphasis on paragraph 836 of Indra Sawhney (supra) wherein the nine-Judge Bench has observed:- "...that there were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such situations, it cannot be advised to provide for reservations. In the paragraph following, the position was made even more clear when Their Lordships observed that they were of the opinion that in certain services in respect of certain posts, application of rule of reservation may not be advisable in regard to various technical posts including posts in superspeciality in medicine, engineering and other scientific and technical posts."
36. Thereafter, the Court proceeded to state further:- "We cannot take a different view, even though it has been suggested that such an observation was not binding, being obiter in nature. We cannot ascribe to such a view since the very concept of reservation implies mediocrity and we will have to take note of the caution indicated in Indra Sawhney case. While reiterating the views expressed by the nine-Judge Bench in Indra Sawhney case, we dispose of the two civil appeals in the light of the said views, which were also expressed in Jagadish Saran case, Pradeep Jain case, Preeti Srivastava case. We impress upon the Central and State Governments to take appropriate steps in accordance with the views expressed in Indra Sawhney case and in this case, as also the other decisions referred to above, keeping in mind the provisions of Article 335 of the Constitution."
37. We have referred to the aforesaid judgments in extenso as learned counsel appearing for the petitioners have laid immense emphasis that there cannot be reservation of any kind in respect of post-graduate or super speciality courses regard being had to the law laid down by many a judgment of this Court. It is urged that the State of Andhra Pradesh and Telangana cannot apply the domicile test only to admit its own students and that too also in respect of 15% quota meant for non-local candidates.
We have already analysed the factual score and the legal position. The undivided State of Andhra Pradesh enjoys a special privilege granted to it under Article 371-D of the Constitution and the Presidential Order. The judgments of the larger Bench do not refer to the said Article nor do they refer to the Presidential Order, for the said issue did not arise in the said cases. A scheme has been laid down in the case of Dr. Pradeep Jain (supra) and the concept of percentage had undergone certain changes. In Reita Nirankari (supra), the same three-Judge Bench clarified the position which we have already reproduced hereinbefore.
"In Dr Pradeep Jain case this Court has observed that in Super Specialities there should really be no reservation. This is so in the general interest of the country and for improving the standard of higher education and thereby improving the quality of available medical services to the people of India. We hope and trust that the Government of India and the State Governments shall seriously consider this aspect of the matter without delay and appropriate guidelines shall be evolved by the Indian Medical Council so as to keep the Super Specialities in medical education unreserved, open and free."
38. The fond hope has remained in the sphere of hope though there has been a progressive change. The said privilege remains unchanged, as if to compete with eternity. Therefore, we echo the same feeling and reiterate the aspirations of others so that authorities can objectively assess and approach the situation so that the national interest can become paramount. We do not intend to add anything in this regard.
39. Consequently, the writ petition as far as it pertains to the State of Andhra Pradesh and Telangana, is dismissed. As regards State of Tamil Nadu, the matter be listed on November 4, 2015 for hearing.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
The Problem: Decedent has left a Will that contains a provision you want to eliminate, for example, you are a child of the Decedent and the Will gives all of the Decedent’s property to Decedent’s surviving spouse (or vice versa).
Your Remedy: File with the Court a Petition challenging the legal validity of the Will, usually known as a Will Contest or a Petition to Set Aside the Will.
A person’s right to dispose of his/her property at death by Will, according to the Courts, is a valuable right protected by statute. Estate of Price, 75 Wn.2d 884 (1969). A Will that is rational on its face and executed in legal form is presumed to be valid. Estate of Eubank, 50 Wn.App. 611, 617 (1988). Any Will admitted to probate is presumed to be valid. Estate of Jolly, 3 Wn.2d 615 (1940). Therefore, a challenger of the Will has the burden of proof to show its invalidity. RCW 11.24.030; Estate of DeLion, 28 Wn.2d 649 (1947).
A challenger of a Will must prove its invalidity by clear, cogent, and convincing evidence. Estate of Black, 153 Wn.2d 152 (2004). Clear, cogent, and convincing evidence exists when the ultimate fact in issue is shown by the evidence to be highly probable. Estate of Watlack, 88 Wn.App. 603 (1997). “Highly probable” means significantly greater than the usual civil standard of proof, “by the preponderance of the evidence.” Therefore, to invalidate the Will, its must provide evidence that the Will’s invalidity is significantly greater than “more likely than not.” The Personal Representative of a contested Will is responsible for its defense. Estate of Esala, 16 Wn. App. 339 (1977).
There is no right to a trial by jury in a challenge to a Will. RCW 11.24.010; Estate of Clayson, 26 Wash. 253 (1901). Therefore, if the challenge proceeds to trial, it will be determined by the Court.
Courts have no jurisdiction over Wills except as provided by statute. Pond v. Faust, 90 Wash. 117 (1916). Therefore, a challenge to a Will is a purely statutory proceeding, and the Court hearing a challenge to a Will is limited in its ability to find a Will invalid by the provisions of the applicable statute. Estate of Kane, 20 Wn.2d 76, (1944); Estate of Van Dyke, 54 Wn.App. 225 (1989); Estate of Kordon, 126 Wn.App. 482 (2005).
Under RCW 11.20.020, upon the Will’s submission to the Court for admission to probate.
Under RCW 11.24.010, after Will’s admission by the Court to probate.
Application for probate — Hearing — Order — Proof — Record of testimony — Affidavits of attesting witnesses.
Presents to a Judge the original of the Will and a copy of the Petition for Probate and requests the Judge to admit the Will to probate and appoint the named Executor as the Personal Representative of the Decedent’s estate. Estate of Campbell, 47 Wn.2d 612 (1955).
This occurs ex parte, meaning that the Executor may take all these actions without having to give notice to anyone.
Exception: Within the first forty days of Decedent’s death if the Decedent left a surviving spouse who is not the named Executor or has not consented to the named Executor’s appointment. RCW 11.28.030 Therefore, it is highly unlikely that anyone interested in a Decedent’s estate will learn about the Will’s admission until after it has been admitted and those persons interested in the estate have received Notice of Probate.
When two or more Wills have been submitted for admission to probate, such that the Court’s rejection of the later Will would allow the earlier Will to be admitted. Estate of Godfrey, 164 Wash. 269 (1931).
When the Court’s authority to open a probate for the Decedent has been questioned, for example, because the Decedent has been alleged not to have died a resident of and left property subject to probate in Washington. State ex rel. Brisbin v. Frater, 1 Wn.2d 13 (1939).
And despite the disfavor of a pre-admission challenge, a Court may exercise its discretion to hear the challenge if it believes the issues presented should be determined. Estate of Campbell, 47 Wn.2d 610 (1955); State ex rel. Perry v. Jordan, 50 Wn.2d 93 (1957); Estate of Black, 153 Wn.2d 152 (2004).
Caution: See Res Judicata, below.
Petition to Probate a Later-Dated Will: Estate of Elliott, 22 Wn.2d 334 (1945); Estate of Campbell, 46 Wn.2d 292 (1955); Estate of Stein, 78 Wn. App. 251 (1995), rev, denied 128 Wn.2d 1014 (1996). Offering a later-dated Will does not challenge the prior Will — it just renders it inoperative. The procedure for admitting a later Will for probate is not provided either by stature or case law. Presumably, one would simply file another Petition for Probate and send Notice of its hearing to all parties of record. Furthermore, presumably, its petitioner has no burden to prove any issue regarding the prior Will, as this Petition for Probate is not a Will Contest. But see: Estate of Bowechop, 52 Wn.App. 775 (1988).
Petition to Probate a Lost or Destroyed Will: Estate of Findley, 199 Wash. 669 (1939). Such a Petition is not a Will Contest, as the latter requires a Will to have been admitted and rejected, and, here, the purportedly lost or destroyed Will has been neither.
Asserting the Will Is Revoked by Operation of Law: Examples: Execution of a later Will that expressly revokes a prior Will; destruction of the Will; a later marriage or divorce; an omitted spouse or child; a lapsed (recipient of gift in Will predeceases testator) or adeemed (asset specifically given in Will is sold prior to death) gift. See for example: Estate of Gherra, 44 Wn.2d 277 (1954) — Will revoked as to omitted spouse.
Contract to Make Mutual Wills: Estate of Krause, 173 Wash. 1 (1933).
Contract to Make a Gift in a Will: McCullough v. McCullough, 153 Wash. 625 (1929).
To challenge a Will, the petitioner must have a “direct pecuniary interest” in the Will — he/she must “stand to lose directly in a financial way” if the Will is allowed to stand. Estate of O’Brien, 13 Wn.2d 581, 583 (1942).
An intestate heir who would not take as much under the contested Will.
A beneficiary under a prior Will who would not take as much under the contested Will. But see Estate of West, 729 S.W.2d 676 (Tenn. Ct. App. 1987) [If a prior Will is lost, it must first be established before a beneficiary under the prior Will has standing to contest a later Will].
A named Personal Representative in a prior Will if his/her only interest is the loss of receiving compensation for services as Personal Representative. Estate of Romano, 40 Wn.2d 796 (1952).
Admission of the Will: Someone who appeared at the initial hearing to admit the Will and challenged its validity.
Rejection of a Will: The person who offered it for admission. Only a party not at the hearing to admit the Will may contest its rejection; the offering party may only proceed by filing a motion for reconsideration, a motion for revision of Commissioner’s Order (if the initial hearing was held by a Superior Court Commissioner instead of a Judge), or an appeal. Estate of Hall, 34 Wn.2d 830, (1949); Estate of Rynning, 1 Wn. App. 565 (1969).
A Will Contest filed one day after after the four-month period was dismissed. State ex rel. Wood v. Chelan County Superior Court, 76 Wash 27 (1913).
The four-month period is not subject to the three day addition allowed for sending notice by mail under CR6(e). Estate of Young, 23 Wn. App. 761 (1979); Estate of Toth, 138 Wn.2d 650 (1999).
The four-month period cannot be extended due to fraud. Estate of Peterson, 102 Wn. App. 456 (2000), rev. denied 142 Wn.2d 1021 (2001).
Exception: The four-month period does not begin for a “reasonably ascertainable” contestant who fails to be sent Notice of Probate. Hesthagen v. Harby, 78 Wn.2d 934 (1971); Estate of Toth, 138 Wn.2d 650 (1999); Estate of Little, 127 Wn. App. 915 (2005).
In a challenge to a Will, if the Court sustains the Will and finds that the contestant acted without probable cause and good faith, it may assess costs and reasonable attorney’s fees against the contestant. RCW 11.24.050 If the Court invalidates the Will, the Court may assess costs and reasonable attorney’s fees against any party. RCW 11.24.050 & 11.96A.150 Therefore, if the Court finds that a challenger to a Will challenged it, for example, based on spite and without probable cause, the Court can requires the challenger to pay the estate’s attorney’s fee and costs involved in defending the Will.

matches: v. v. v. v. v. v.


text:
Thomas Hipp; Hipp's Trucking, Inc., Defendants. Occidental Fire & Casualty Company, Plaintiff–Appellant v. Adam Soczynski, as Trustee for the heirs and next of kin of Amy Soczynski, deceased, Defendant–Appellee Thomas Hipp; Hipp's Trucking, Inc. Defendants.
Before BYE, MELLOY, and BENTON, Circuit Judges. William Lawrence Davidson, argued, Minneapolis, MN, (Brian Alan Wood, Minneapolis, MN, on the brief) for appellant. Wilbur W. Fluegel, argued, Minneapolis, MN, (Thomas J. Laughlin, Oakdale, MN, on the brief) for appellee.
This is an insurance coverage dispute arising out of a fatal accident. The district court1 determined a bobtail policy issued to Hipp's Trucking, Inc., provided coverage for damages arising out of a collision involving trucker Thomas Hipp's semi-tractor and trailer. The district court also determined the bobtail policy provided $1 million in coverage. We affirm.
On March 10, 2009, Thomas Hipp was driving his semi-tractor and trailer on a two-lane road near Ham Lake, Minnesota, after loading wind tower outriggers2 onto the trailer. On a gradual curve in the road, Hipp's trailer crossed the center line and collided with a vehicle driven by Amy Soczynski. Amy died as a result of the collision.
At the time of the accident, Hipp's semi-tractor and trailer were insured by two separate insurance policies. The first policy was issued by Great West Insurance Company (Great West) to Airline Transportation Specialists, Inc., (ATS), a federally licensed motor carrier. Hipp had been hauling cargo exclusively for ATS for several years and had a continuous lease agreement with ATS at the time of the accident. The Great West policy was intended to cover Hipp while he was hauling commercial loads on behalf of ATS.
A second policy was issued to Hipp's Trucking by Occidental Fire & Casualty Company of North Carolina (Occidental). The Occidental policy was a non-trucking use policy, also referred to as a bobtail policy. A bobtail policy is intended to provide coverage for a trucker while a semi-tractor is being driven without a trailer, or while the trucker is operating outside the services of a federally licensed motor carrier.
Following the accident, Adam Soczynski, Amy's widower, sued Hipp in Minnesota state court alleging the accident was caused by Hipp's negligence. Although Hipp was not hauling an ATS load at the time of the accident—Hipp had purchased the wind tower outriggers to make his trailer more marketable to other motor carriers in the event he quit working for ATS—Adam nonetheless amended his complaint to add ATS as a defendant. Adam alleged Hipp was operating his semitractor at the time of the accident with the “permission and consent” of and “under the authority of [ATS]” pursuant to the continuous lease agreement between Hipp and ATS.
During the course of the state court action, Adam demanded the policy limits for both the Great West policy and the Occidental bobtail policy. Occidental refused to tender the limits of the bobtail policy. Notwithstanding the fact that Hipp was not hauling a commercial load for ATS at the time of the accident, Great West decided to tender its policy limits of $1 million. Great West stipulated that its “offer and release is made with the understanding that [ATS] would maintain its denial of liability,” but that “[d]ue to the possibility of exposure to a verdict greatly in excess of policy limits ․ Great West ․ made a business decision to tender its liability limits despite its available defenses.” As part of the settlement, Hipp assigned any potential claims he may have against Occidental to Adam.
As an additional part of the settlement, the parties appointed an arbitrator to decide the amount of damages. The arbitrator determined the total damages from the accident were $2,750,000. The state court found the arbitrator's damage award reasonable, offset the $1 million settlement with Great West, and entered judgment against Hipp in the amount of $1,750,000. Adam agreed not to execute the judgment against Hipp personally, but reserved the right to pursue Occidental for the limits of the bobtail policy. The parties gave Occidental notice of their intent to enter into the settlement as well as a copy of the executed agreement.
After the state court settlement, Occidental filed a complaint in federal district court seeking a declaratory judgment that its bobtail policy did not provide coverage for the accident. Adam filed an answer and counterclaim. In the counterclaim, Adam asked the court to declare that the Occidental policy provided coverage for the accident, determine the policy limits to be $1 million, and award damages based on Occidental's bad faith in failing to tender its policy limits in the state court action.
Occidental and Adam both filed motions for summary judgment. In its motion, Occidental relied upon a Non–Trucking endorsement in the bobtail policy which stated “[t]his insurance does not apply at any time that [Hipp] is operating, maintaining, or using a covered auto for or on the behalf of any other person or organization.” Occidental argued Hipp was operating his semi-tractor on behalf of ATS at the time of the accident, and thus the bobtail policy did not provide coverage. Occidental further argued Adam should be judicially estopped from arguing the bobtail policy provided coverage for the accident because he had already recovered under the Great West policy after alleging Hipp was operating his truck under ATS's authority at the time of the accident. The parties also disputed the amount of coverage available under the bobtail policy based upon a conflict between the declarations page—which said the policy limits were $500,000—and a “Monthly Payment and Reporting Endorsement” labeled Form AA 1903—which said the policy limits were $1 million.
The district court granted Adam's motion for summary judgment and denied Occidental's motion. The district court determined Adam was not judicially estopped from pursuing coverage under the bobtail policy despite having alleged in state court that Hipp was operating his semi-tractor under the authority of ATS at the time of the accident, and despite having recovered under ATS's policy in the settlement with Great West. The district court further determined the bobtail policy's Non–Trucking endorsement did not preclude coverage because Hipp was on a personal errand to haul his own wind tower outriggers and thus not acting on behalf of ATS at the time of the accident. Finally, the district court determined the bobtail policy was ambiguous with respect to the policy limits and resolved the ambiguity against Occidental.
Following the summary judgment determination, Adam asked the court to voluntarily dismiss his bad faith claim. The district court dismissed the bad faith claim and entered a final judgment. This timely appeal followed.
We review the district court's grant of summary judgment de novo. Stein v. Chase Home Fin., LLC, 662 F.3d 976, 979 (8th Cir.2011). Similarly, we review the district court's interpretation of an insurance policy de novo. Macheca Transp. v. Phila. Indem. Ins. Co., 649 F.3d 661, 667 (8th Cir.2011). We review the district court's refusal to apply the doctrine of judicial estoppel only for an abuse of discretion, however, because the doctrine is one of equity invoked at the district court's discretion. See Capella Univ., Inc. v. Exec. Risk Specialty Ins. Co., 617 F.3d 1040, 1051 (8th Cir.2010).
Occidental first contends the district court abused its discretion when it declined to apply the doctrine of judicial estoppel to prevent Adam from pursuing coverage under the bobtail policy.
First, the party presenting the allegedly inconsistent theories must have prevailed in its original position (a litigant is not forever bound to a losing position). Second, there must be a clear inconsistency between the original and subsequent position of the party. Finally, there must not be any distinct or different issues of fact in the proceedings.
State v. Pendleton, 706 N.W.2d 500, 507 (Minn.2005) (internal quotation marks and citations omitted).3 Importantly, with respect to whether a party has “prevailed in its original position,” the Minnesota Supreme Court stated “judicial estoppel requires that the party have actually previously succeeded at trial on a factual theory inconsistent to the one in question.” Id.
Occidental contends the district court abused its discretion when it declined to apply judicial estoppel here because Adam presented one theory in state court, i.e., that Hipp operated his semi-tractor under the authority of ATS at the time of the accident, prevailed on such theory when Great West tendered its policy limits to settle the case, but then reversed course in federal court by contending Hipp was acting on his own behalf at the time of the accident.
Occidental next contends the district court erred when it concluded the bobtail policy provided coverage to Hipp at the time of the accident. In this case, the coverage dispute turned on a phrase in an exclusion which states this “insurance does not apply at any time that [Hipp] is operating, maintaining, or using a covered auto for or on the behalf of any other person or organization.” Under Minnesota law, Occidental had the burden to establish the applicability of any exclusions in the bobtail policy. Travelers Indem. Co. v. Bloomington Steel & Supply Co., 718 N.W.2d 888, 894 (Minn.2006). Policy exclusions are “construed narrowly and strictly against the insurer.” Id.
The district court concluded Hipp was not operating his semi-tractor “for or on the behalf of” ATS at the time of the accident, but instead was operating the semitractor on his own behalf by hauling the wind tower outriggers he had purchased. We agree. It was undisputed that Hipp was not hauling a commercial load for ATS at the time of the accident. In addition, ATS was not paying Hipp for the use of his truck at the time of the accident. Finally, Hipp testified he had purchased the wind tower outriggers for his own benefit in the event he stopped hauling for ATS. In fact, the record showed ATS had never utilized the outriggers in the three years following the accident. Under these facts, we conclude the district court correctly determined Occidental failed to carry its burden of showing Hipp was acting “for or on the behalf of” ATS at the time of the accident.
Finally, Occidental contends the district court erred when it determined the bobtail policy had limits of $1 million. Significantly, Occidental concedes the bobtail policy is ambiguous with respect to the issue of the coverage limits. See Appellant's Br. at 47 (“The Occidental policy is internally inconsistent in that it has one page that states it provides $1 million in coverage, but the declarations page ․ provide[s] that its limit is $500,000.”). Occidental contends, however, under Minnesota law the ambiguity is not necessarily construed against it if the result of such a construction is “beyond the reasonable expectations of the insured.” Rusthoven v. Commercial Standard Ins. Co., 387 N.W.2d 642, 645 (Minn.1986).
In Rusthoven, the Minnesota Supreme Court resolved a policy limits dispute over the uninsured motorist coverage available under a policy insuring sixty-seven leased vehicles. The court concluded two endorsements attached to the policy were irreconcilably inconsistent. One endorsement purported to limit uninsured motorist coverage to $25,000 for each person and $50,000 for each accident, but a reasonable interpretation of a separate endorsement indicated the uninsured motorist coverage was equal to “the sum of the limits applicable to each covered auto,” which was “67 times $25,000 for each person or $1,675,000.” 387 N.W.2d at 644. The court noted “[o]ne of the fundamentals of insurance law ․ is that ambiguous language in an insurance policy is to be construed in favor of the insured,” but added the proviso that “[t]he result of such a construction ․ must not be beyond the reasonable expectations of the insured.” Id. at 645. The court found the higher amount “not to exceed the reasonable expectations of the insured” and construed the ambiguity against the insurer. Id.
Here, the district court relied upon Rusthoven to conclude the higher policy limits of $1 million did not exceed the reasonable expectations of the insured, and construed the bobtail policy's ambiguity against Occidental. Occidental argues the district court's reliance on Rusthoven was misplaced. Occidental contends the district court should have followed a subsequent decision issued by the Minnesota Court of Appeals in Curtis v. Home Insurance Co., 392 N.W.2d 44, 45 (Minn.Ct.App.1986). In Curtis, the court of appeals applied Rusthoven but concluded an ambiguous policy should not be construed against the insurer. The court of appeals held the policy provided the lesser of two policy limits because there were “affidavits stating that the [insured] intended the maximum amount of underinsured motorist coverage available for any one accident would be $50,000 [the lesser limit].” 392 N.W.2d at 46. Consequently, the court concluded the insured had “no expectation that the limit of liability would be greater than $50,000.” Id.
Occidental contends—similar to the situation involved in Curtis—there is record evidence in this case indicating exactly what the insured's reasonable expectations were with respect to the bobtail policy's coverage limits. Occidental relies solely upon a settlement letter prepared by Adam's attorney in January 2011. Adam's attorney represented that the information provided to him indicated the coverage limits for the bobtail policy were $500,000. Occidental contends Adam's attorney's settlement letter demonstrates exactly what Thomas Hipp's reasonable expectations were with respect to the policy limits. We disagree.
Unlike the situation involved in Curtis, there is no affidavit directly from Thomas Hipp stating that he intended his bobtail policy limits to be $500,000. Nor is Hipp even directly identified as the personal source of the hearsay referenced by the plaintiff's attorney in the settlement letter with respect to the policy limits. Thus, contrary to Occidental's contention, there is no record evidence in this case indicating what Thomas Hipp's reasonable expectations were. The district court therefore did not err when it construed the admittedly ambiguous policy against Occidental to conclude it provided $1 million in coverage.
2. Outriggers are removable steel structures that can be attached to a trailer to make more floor space available or to distribute the weight of a load differently, allowing truck drivers to haul various types of cargo.
3. Courts in our circuit are bound to apply state law elements of judicial estoppel in a diversity case. See Monterey Dev. Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 608–09 (8th Cir.1993); see also Spencer v. Annett Holdings, Inc., ––– F.3d ––––, ––––, 2014 WL 3056811, at *6 (8th Cir. July 8, 2014) (reaffirming our decision in Monterey ).
4. We note the circuit split regarding whether settling a claim is the same as persuading a court to adopt a party's position. Compare Konstantinidis v. Chen, 626 F.2d 933, 939 (D.C.Cir.1980) (“A settlement neither requires nor implies any judicial endorsement of either party's claims or theories, and thus a settlement does not provide the prior success necessary for judicial estoppel.”); Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982) (“If the initial proceeding results in settlement, the position cannot be viewed as having been successfully asserted.”); Bates v. Long Island R.R. Co., 997 F.2d 1028, 1038 (2d Cir.1993) (same) with Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 604–05 (9th Cir.1996) (concluding a favorable settlement is the “equivalent to winning a judgment for purposes of applying judicial estoppel”); Commonwealth Ins. Co. v.. Titan Tire Corp., 398 F.3d 879, 887 (7th Cir.2004) (concluding a “favorable settlement ․ may be sufficient to show that the party to be estopped prevailed in the prior case regardless of whether a judicial decision was obtained”).Because Minnesota law requires a party to succeed “at trial” before the doctrine would apply, we need not choose a side in the circuit split. We have, however, said the “chief purpose” of the doctrine “is to protect the integrity of the judicial process.” E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 681 (8th Cir.2012). Under circumstances where a party pursues alternate theories against two parties, settles the weaker claim against one party without a court adjudication, and then pursues the stronger theory against the other party in court, we see little, if any, threat to the integrity of the judicial process.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.