Andhra HC (Pre-Telangana)
The Registrar, Osmania University And ... vs V. Raja Satyanarayana, Rep. By His ... on 11 July, 1996
Equivalent citations: 1996(3)ALT945
Author: Syed Saadatulla Hussaini
Bench: Syed Saadatulla Hussaini
JUDGMENT P.S. Mishra, C.J.
1. Instant appeals, under Clause 15 of the Letters Patent, have arisen from the judgment in a petition (W.P.No.24563 of 1995) under Article 226 of the Constitution of India by V. Rajasatyanarayana, minor, represented by his father.
2. Relevant facts giving rise to the writ petition and the appeals are as follows:
The Osmania University Academic Council created supernumerary seats in favour of its employees' children in the year 1981 and enforced it from the academic year 1981-82 and followed it by such reservations for the employees of the constituent colleges as well. It received representations from the employees of the affiliated colleges for similar benefit and it agreed to extend the reservation to the children of the employees of affiliated colleges by its Circular No. 3308/D/351/II/84/Acad., dated 5-9-1994. Validity of the said reservation, however, was questioned before this Court and in Vijaya Govind v. Osmania University, 1987 (2) ALT 283 the Court held the reservation for the children of the employees for various courses of study invalid. Appeal against the said judgment before the Supreme Court failed (Civil Appeal No. 1637 of 1987, order dated 9-3-1987). Basing, however, the claim on the above circular, one V. Sita Rama Sastry, Office Manager of MVSR. Engineering College, Said a bad requested the college to extend the benefit to his son. Executive Council of the college authorised the Principal of the college to forward the application to the Registrar of Osmania University and the Commissioner of Technical Education. Government of Andhra Pradesh. The Principal accordingly forwarded the application and requested the University and the Commissioner of Technical Education, Government of Andhra Pradesh to clarify whether in view of the judgment in Vijaya Govind v. Osmania University any such practice of supernumerary seats for children of its employees is in vogue or is revived for being continued. Writ petitioner-respondent filed W.P. No.24563 of 1995 with a prayer for a direction to the respondent-college to admit the petitioner in B.E. course in the supernumerary seat. The Court in W.P.M.P. No. 30218 of 1995 directed the respondent-college to admit the petitioner-respondent into B.E. course for the academic year 1995-96 in the quota of children of college employees, if such a scheme was operative insofar as the respondent-college was concerned. Before, however, the interim direction of the Court, the Commissioner of Technical Education on 17-10-1995 informed the respondent-college that there was no such provision to provide admission to children of staff on supernumerary basis. The University also informed the college accordingly on 5-12-1995, which the respondent-college received on 18-12-1995, that his request for creation of supernumerary seat could not be accepted. In view, however, of the interim order of the Court, the petitioner-respondent was admitted on condition that it was subject to the final outcome of the writ petition. On 1-1-1996 the University advised the Principal of the college to cancel the admission as otherwise University would not permit the student to write the examination. Some further correspondence passed between the parties. Finally, however, on 30-1-1996 the respondent-college issued a letter to the petitioner-respondent stating that his admission would be cancelled unless he got proper approval from the authorities or orders of the Court within ten days. Facts were /are not in dispute and the writ petition was taken up for final hearing by the learned single Judge who has held that the scheme was in vogue under which the petitioner-respondent was rightly admitted and there is no reason why his admission should be cancelled or he be denied the benefit of the said reservation. Learned single Judge has observed as follows:
"The Commissioner of Collegiate Education has merely stated that as per the rules in force there is no provision to provide admission to the children of the staff working in private Engineering Colleges on Supernumerary basis while the Registrar of the University had referred to a Circular dated 29-4-1987 to support that student. That Circular referred to a judgment of this Court setting aside the Supernumerary Seats for the children of the University employees. I agree with the learned counsel for the petitioner that the said decision of this Court dated 26-12-1986 in W.P. No. 15225/1986 as well as in S.S. Jaideep v. Registrar, Andhra University, Waltair (1985 (2) APLJ 211) could apply only the reservation of seats for the children of the employees of the University and not to the reservation of the seats for the children of the employees of private affiliated colleges. In fact, the Circular itself refer only to the University and Constituent Colleges. There is quite a difference between a Constituent College and affiliated college because the Constituent College is part of the University and is run by the public funds whereas an affiliated college is run with private funds. In fact, another judgment of this Court dated 15-4-1992 in W.P. No.13304/1991 has noted this difference and upheld the reservation of seats to the children of the employees of a private college.
The question that remains is whether by reason of the amendment of the law or the rules, such reservation made earlier by the University stands obliterated. That reservation was earlier made by the University under Osmania University Act which admittedly granted power to the University to permit such reservation. This was preserved by the University Act which replaced it. It may also be remembered that the common admission scheme was in force even in 1984 when the University created the Supernumerary Seat.
Of course, the rules for admission by Common Entrance Test in G.O.Ms. No. 184 dated 20-8-1993 provides that the total number of seats shall not exceed the limit prescribed by the Government and the admission shall be made only by the Convenor. But every rule has an exception and those rules themselves provide for excluding certain categories of seats such as, nomination by the Government of India, nomination by the State Government on reciprocal basis, etc. Such reservation has been upheld by the Supreme Court in Chitra Ghosh v. Union of India (1970 SC 35). The very concept 'Supernumerary' means mat it is outside the total number. When the said rules apply only to the total number of seats prescribed by the Government, it cannot, obviously apply to the extra seat which was permitted by the University before the rules are framed and which continues to exist unrepeated. After all, this is a case of only a single seat given to a son of staff of the private Engineering College and as -an be seen from the record a claim for the seat came earlier only in 1984 and has come again after a decade. The candidate has also qualified for admission. The averment in the counter affidavit that the reservation shall be made for advancement of deprived classes but not to benefit anybody simply basing on pedigree, is self-contradictory since as can be understood by every one the present SC /ST reservation is really based on pedigree. In a sense even the staff working in a private institution need support and I am not able to see any manner of discrimination or arbitrariness in reserving one Supernumerary seat for the staff of a private college as held by this Court.
The learned Counsel for the respondent drew my attention to para 174 of the judgment of the Supreme Court in Unni Krishnan J.P. v. State of A.P. , the observation is as follows:
"We have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the State and that what applies to the main activity applies equally to the supplemental activity as well. If Article 14 of the Constitution applies - as it does, without a doubt - to the State institutions and compels them to admit students on the basis of merit and merit alone (subject, of course, to any permissible reservations - wherein too, merit inter se has to be followed) the applicability of Article 14 cannot be excluded from the supplemental effort activity."
The words in parenthesis clearly exclude permissible reservation and hence this observation of the Supreme Court,, in my opinion, does not stand in the way of the admission of the petitioner.
In my considered opinion, therefore, the reservation of seats for the children of the staff working in the private Engineering Colleges is not invalid and such reservation made in 1984 by the Osmania University continued to be in force, and hence, the admission granted by the 2nd respondent to the petitioner's son in pursuance of the interim direction of this Court is correct and has to be upheld. Therefore, there shall be a direction to the University to accept the admission and permit the candidate to write the examination."
3. The State shall not deny to any person equality before law or the equal protection of the laws is one of such fundamental rights which is guaranteed by the Constitution to achieve equality of status and of opportunity, which is an essential feature of the democracy. It does not, however, mean equality in such absolute terms that by its adherence inequality existing in the society is perpetuated. Treating unequals as equals is against the very spirit of equality before the law or the equal protection of the laws and making unequals equals in the matter of opportunity would hit at the root of the equality of status. To make the general and abstract principle of equality real and pervasive, Constitution has made specific provisions, particularly for the citizens of India as enshrined under Article 15 thereof prohibiting discrimination on grounds of religion, race, caste, sex or place of birth and permitted the State to make special provisions for women and children and for socially and educationally backward classes of citizens, Scheduled Castes and Scheduled Tribes. Reservations for a class of people, who are socially and educationally backward or Schedules Castes and Scheduled Tribes, however, are intended as special provisions to remove inequality without in any manner infringing the nexus between the legislation and its object. Plethora of decisions of various Courts as well as the Supreme Court are available which show the way when and how to make reservations and special provisions for some such persons who are suffering some disadvantage and unless they are protected, they may not achieve the cherished equality of status and of opportunity. We need, however, no authority to understand that there should be some affliction which must be shown to exist in a person or a class of persons which is required to be removed by making special provisions. By no stretch of imagination, one can think of being a child of an employee of an institution is an affliction which needs a protection of reservation by way of special provision under Article 15(3) and (4) of the Constitution of India or otherwise even under Article 14 for the purposes of ensuring the equal protection of law and equality before law. This Court has left no manner of doubt in respect of the above and pronounced in no uncertain terms that such a reservation for the children of the employees of the University is not permissible in Vijaya Govind v. Osmania University (1 supra). The same has to apply to the case of the children of the employees of the affiliated colleges.
4. For the reasons aforementioned, it has to be held that the reservation, if any allegedly surviving under the above-mentioned circular of the University, is in the teeth of Article 14 of the Constitution of India and is accordingly invalid. The petitioner-respondent's admission in the respondent-college on a supernumerary seat has given no legal status for claiming entry into a public examination by the University. The so-called supernumerary seat thus created for the benefit of the petitioner-respondent by the management of the respondent-college is non est. Learned single Judge has committed error of law in accepting the claim of the petitioner-respondent and granting relief as above.
5. For the reasons aforementioned, the impugned judgment is set aside. The writ petition is dismissed, but without costs. The appeals are allowed.