Andhra HC (Pre-Telangana)
Kum Kum Lahiri Rao vs The President, Dr. B.R. Ambedkar ... on 22 August, 2002
Equivalent citations: 2002(5)ALT320
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. In these writ petitions, common question of fact as well as law arises. In that view of the matter, they are disposed of through common order.
2. Andhra University had issued notification as regards the admission of candidates into first year for various Post Graduate courses (for short 'PG courses') as well as LL.B.(3 years) full time course, for the academic year 2002-03. For these admissions, the University conducts entrance examinations and candidates are to be selected on the basis of their performance at the entrance examinations. The last date for submission of applications for various PG courses, such as, M.A., M.Com., M.LI.Sc., M.Ed., etc., was 30-4-2002, without late fee and 7-5-2002, with late fee. The entrance test was held on 2-6-2002. For the LL.B., course, there was a different schedule.
3. The University issued a notification dated 23-6-2002 stipulating that such of the candidates who have studied PG courses or have done M.Phil. or Ph.D., are not eligible to be admitted into another PG course. Such admissions were treated as horizontal and it was clarified that admissions are permissible only for vertical courses. While this notification was issued as regards various PG courses subsequent to the date of entrance examination, for the LL.B., course, the condition was incorporated in the Instructions and Information to the applicants supplied along with the applications.
4. The petitioners challenged this condition on several grounds. All the petitioners contend that restricting their choice of admission into various courses is illegal, arbitrary and impermissible in law. They state that such a restriction would interfere with their right to pursue the courses of their choice. Their another contention is that the Vice Chancellor, at whose instance the Circular was issued or the condition was incorporated, as the case may be, does not have the power to do so. In so far as the candidates, who applied for courses other than LL.B., are concerned, an additional ground is pleaded that once a notification was issued and the candidates appeared for the entrance examination, it was not open to the University to alter the conditions of admission.
5. The University filed counter affidavits in the respective writ petitions. It is contended that though a notification without such a restriction was issued as regards the courses other than LL.B., such a condition came to be framed on 25-2-2002 i.e., much before the entrance examination was held and as such it cannot be treated as subsequent alteration. It is stated that the Vice Chancellor, being the Executive Head of the University, has the right to stipulate conditions to ensure that only genuine candidates get admission. The University supports the basis for incorporation of such condition by pleading that the object is to ensure that the same candidates, who studied courses one after the other, do not get admissions, to the detriment of other needy students.
6. It is contended by Sri G.Ram Gopal and Sri P.Vinod Kumar, learned counsel for the petitioners that once a notification is issued stipulating certain conditions of admissions, it is not open to add or alter the conditions. They submit that, according to the provisions of A.P. Universities Act (for short 'the Act'), it is only the Academic Senate which is competent to take decisions relating to the conditions of admissions and the Vice Chancellor has no power to stipulate or alter the conditions. The 3rd contention is that there is no nexus between the stipulated condition and the object sought to be achieved. They also stated that the object itself is objectionable.
7. Sri M.R.K.Chowdary, learned senior counsel for the respondents-University, on the other hand, submits that the impugned condition, in so far as it relates to the other PG courses, was approved on 25-5-2002 itself and, as such, it cannot be said that it is a subsequent alteration. On the competence of the Vice Chancellor, the learned counsel states that according to the provisions of the Act, the Vice Chancellor is the Executive Head and endowed with the power to take any decision which any authority under that Act is competent, to meet the situations, as and how the situations arise. As regards the merits of the condition, the learned counsel states that no exception can be taken, to the effort of the University to restrict the instances of some candidates getting admitted into courses one after the other, to the detriment of those who are clamouring for it, as a matter of serious pursuit.
8. In view of the rival contentions of the parties, which emerge out of the pleadings as well as the arguments, the questions that arise for consideration in this batch of writ petitions, may be broadly stated as those relating to:
(a) Timing of the decision;
(b) Competence of the Vice Chancellor; and
(c) Legality of the decision.
9. The first question arises in all cases except those relating to admission into LL.B., course. The notification was issued some time in April 2002. The last date for submission of application for the entrance examination was 30-4-2002 (7-5-2002 with late fee). The entrance examination was held between 2-6-2002 and 11-6-2002. In the notification as originally issued, there was no restriction for admission into the PG courses on the candidates who have studied other PG courses. The restriction on admission into what are termed as horizontal courses, came to be imposed through Memo dated 23-6-2002. This obviously is subsequent not only to the original notification, but even to the dates of entrance examinations. The contention of the respondents is that such a decision was taken by the Vice Chancellor on 24-5-2002 and was published in the form of Circular dated 25-5-2002. It was also stated that it was placed before the Executive Council on 31-5-2002. This decision, according to them, was communicated in the form of a Memo dated 23-6-2002. It is stated that inasmuch the Circular as well as the Memo came to be issued before the admissions were made, it cannot be said that it is a subsequent alteration.
10. The question as to whether it was competent for the Vice Chancellor to take the decision will be considered in the subsequent paragraphs. For the purpose of this question, even if it is to be assumed that the authority who issued Circular or the Memo, was competent to do so, it is to be seen as to whether it constituted a subsequent alteration of the conditions. As observed earlier, in the original notification, such a condition was not there. The learned counsel for the petitioners has drawn the attention of this Court to certain clauses in the original notification, which are suggestive of the fact that there is no prohibition for a candidate who has studied PG courses, etc., to get admitted to any course of choice. The only restriction that was placed is that such candidates will not be eligible to be granted the scholarships. The relevant conditions are to the following effect:
"9. Candidates, who after having completed one stage of education, if admitted in the same stage of education in a different subject, e.g., M.A./M.Sc., in one subject after M.A./M.Sc., in another subject will not be eligible for the grant of scholarship and fee concession.
10. Candidates pursuing study of second professional course will not be eligible for grant of scholarship and fee concession."
11. Even if the decision for prohibiting the horizontal admission is said to have been taken on 25-5-2002, the same happens to be subsequent to the last date for submission of application forms, which is 7-5-2002. While making the application, a candidate will be guided by the conditions contained in the prospectus and having been satisfied as to his eligibility coupled with his aptitude, he makes an application for a particular course. If such a candidate did not suffer any disqualification as on the date of making the application, any disability fastened on him, at a subsequent date, certainly constitutes a subsequent alteration, to the detriment of such candidate. A Division Bench of this Court in A. RAMA vs. KAKATIYA UNIVERSITY, held that alteration of Rules of Admissions subsequent to holding of the entrance examination would be arbitrary and discriminatory. The relevant paragraph reads as under:
"Once a rule of admission has been prescribed and candidates called upon to apply for admission on the basis of the said rules, it is not open to the respondents to alter the rule of admission after the entrance examination has been held. It may be open to the University to alter the rule of admission before calling for the applications, but once the applications have been called for, for admission on the basis of the existing rules, it is not open to the University authorities, by a subsequent resolution, to alter the said rules of admission and, therefore, the resolution passed by the 8th academic council on 7-11-1981 altering the rule of admission can have only prospective operation and cannot be applied to candidates who had already applied for admission and who had sat for the entrance examination for admission to the M.A. English Degree course on the basis of the rules in force on the date of the holding of the entrance examination. Therefore, the University authorities committed an illegality in applying the altered rule of admission, as resolved at the 8th Academic Council's meeting held on7-11-1981, to the admissions to be made for the M.A. English Degree course for the academic year 1981-82.
12. Though it is stated by the respondents that the decision altering the condition was published on 25-5-2002, there is nothing on record to substantiate the same. Admittedly, the candidates were supplied with the Memo dated 23-6-2002 only at the time of admissions. I respectfully follow the ratio laid down by the Division Bench in A.RAMA case (1 supra) and hold that the stipulation contained in Memo dated 23-6-2002 is inapplicable and admissions are required to be made strictly in accordance with the conditions as were contained in the original notification.
13. The decision to prohibit the horizontal admissions is said to have been taken by the Vice Chancellor. It is further stated that this decision was later approved by the Executive Council. The various Universities in the State of Andhra Pradesh were constituted under the respective Acts. The provisions of all these Acts were almost uniform. With a view to bring about complete uniformity as to the composition and functioning of the Universities, the A.P. State Legislature has enacted the A.P. Universities Act, 1991, repealing all the respective Acts of the concerned Universities. In this batch of writ petitions, we are concerned with the powers of the authorities to stipulate the conditions of admissions. Section 25 of the Act confers the power to stipulate such conditions by the Academic Senate. The relevant provision reads as under:
"25. Powers of the Academic Senate:-
(1) xx xx xx (2) xx xx xx
(j) To make regulations relating to courses, examinations and the conditions on which students shall be admitted to examinations for the degrees of the University;
14. When the power is specifically conferred with the Academic Senate, it is not understandable as to how the decision on this aspect can be taken by the Vice Chancellor and approved by the Executive Council. The Executive Council has a separate set of powers covering a different field. Irrespective of its primacy in the structure of the University, the Executive Council cannot assume to itself the power to decide or approve on matters, which are specifically earmarked to be dealt by the Academic Senate.
15. The respondents sought to justify the decision taken by the Vice Chancellor by referring to Section 11(3) of the Act, which reads as under:
"11(3) The Vice Chancellor shall be the academic head and the principal Executive officer of the University and shall exercise general control over its affairs. He shall be a whole time officer of the University."
16. The learned senior counsel for the respondents had compared the powers, which are available to the Vice Chancellor, with those under Article l62 of the Constitution of India. In support of this, he relies upon Sub-Section 8(a) of Section 13 of the Act, which reads as under:
"13(8)(a) When, with regard to any matter in which any officer or authority may take action, the Vice Chancellor considers immediate action desirable, he may subject to the general control of the Chancellor take such action as may be necessary but shall, as soon as may be report the action taken to the officer or authority concerned."
17. It is no doubt true that the Vice Chancellor is designated as Academic Head and Principal Executive Officer. He is also conferred with the powers comparable to those under Article 162 of the Constitution of India. However, just as exercise of executive power is restricted to unoccupied fields, so are the powers of Vice Chancellor. Reference in this context may be made to the judgment of the Supreme Court RAM JAWAYA vs. STATE OF PUNJAB, AIR 1955 SC 551, wherein the extent of executive power was clearly indicated and explained by the Hon'ble Supreme Court. B.K.Mukherjee, Chief Justice, after discussing at length the provisions of Articles 73 and 162 of the Constitution of India and the power of the other wings of the Government, held as under:
"It may not be possible to frame an exhaustive definition of what executive functions means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away."
18. This principle has been followed in several subsequent judgments. The same proposition has been explained from a different angle by the Hon'ble Supreme Court in STATE OF M.P. vs. NIVEDITA JAIN, Under Article 162 of the Constitution the executive power of a State, therefore, extends to the matter with regard to which the legislature of a State has power to make laws. As there is no legislation covering the field of selection of candidates for admission to medical colleges, the State Government would, undoubtedly, be competent to pass executive orders in this regard."
19. It thereby connotes that wherever a situation is provided for by legislation, be it an enactment or a delegated legislation, it is impermissible to deal with other situations in exercise of executive powers. When the Academic Senate is specifically conferred with the power to prescribe conditions as to admission, and when they are so prescribed, the Vice Chancellor has absolutely no role to play in that field. The powers conferred on him under Sub-Section 8(a) of Section 13 of the Act by themselves are executive in nature and are restricted to unoccupied fields. Once any aspect of the matter is dealt with specifically under the Rules or other provisions, the Vice Chancellor, in exercise of the powers conferred in him under the provisions referred to above, cannot undo or alter the same. It is only to meet the situations where certain areas remained uncovered, that such powers are conferred. By no stretch of imagination, the Vice Chancellor can be said to have been created as an authority parallel to those created under the Act. Therefore, the decision taken by the Vice Chancellor, restricting the admissions in horizontal courses, is without any legal basis.
20. Now remains the question as to the legality of the restrictions. This is common to all the writ petitions, whether they came to be incorporated in the application itself, or through a subsequent memo. As regards the LL.B., course, the condition reads as under:
"10. The candidates shall be allowed admission only to vertical courses of study i.e., candidates will be eligible for admission into LL.B. only after Bachelor degree and not after obtaining Master's degree."
21. In respect of other courses, the condition was stipulated in the Memo as under:
"XI. The student admitted in a course shall be allowed for admission to vertical course only i.e., Graduates may go for post-graduation and post-graduates may go for M.Phil./Ph.D. programme in the concerned course only. Thus, no downward or horizontal movements shall be allowed. For example, once a student chooses a professional course e.g. if any student after finishing his/her B.A., with Economics as a subject, joins LL.B. course, he/she must choose LL.M. and PH.D. in Law only and should not go to M.A. in Economics and Ph.D. in t his University."
22. A reading of these stipulations indicates that the candidates who have studied Masters Degree are not eligible for admission into LL.B. and those who have studied certain PG courses are not eligible for admission into other PG courses. The petitioners contend that such clauses bring about artificial classification, result in discrimination and thereby violate Article 14 of the Constitution of India. The condition as explained in the counter affidavit is so stringent that even admission into certain PG courses irrespective of the fact whether the candidate studied them or discontinued them, would constitute a bar for admission into other courses. The basis pleaded by the University is in the following terms:
"The eligibility criteria and prescription of the qualification is in the name of academic and policy decision and such decision cannot be interfered under Article 226 of Constitution of India. The University has got power or authority to frame and fix the eligibility criteria for the purpose of admission into a particular course. Mere appearance and securing a rank in the common entrance test and mere issuance of the interview memo does not give any right of admission to the petitioner and it is subject to the qualifications and the eligibility conditions stipulated by the University. The University has got authority to prescribe eligibility criteria for admission."
23. The plea referred to above deserves to be termed as too spacious. It is so general and sweeping that any decision on this aspect can be justified with such a plea. It is doubtful whether such unqualified freedom is available to a private agency having a semblance of public element. However, a University, constituted under the statute, discharging wholly public functions, cannot be conceded such an unqualified freedom to do or undo whatever it wants. All its decisions are not only to be in conformity with the provisions of the statute, under which it is constituted and the Rules made thereunder, but also principles of fairplay and accountability.
24. The learned senior counsel for the respondents submits that, the decision contained in the impugned memo as well as the condition, being academic in nature, is not amenable to adjudication under Article 226 of the Constitution of India. He relied upon the judgment of this Court in T.VIJAY KUMAR vs. KAKATIYA INSTITUTE OF TECHNOLOGY AND SCIENCES, .
25. It is true that the Courts will be slow in interfering in academic matters. A distinction, however, is to be borne in mind as to the matters relating to entry into a course and those relating to the contents of a course. While in the latter, the degree of interference is too meagre; the same as regards the former is not so restrictive. The conditions stipulated for admission should be such that they have relevance to the course and are conceived in promoting academic excellence. Disqualifying a candidate only on the ground that he holds certain additional qualifications can never be recognised as a step in achieving academic excellence. On the other hand, such a step will be unreasonable and irrational. a decision is patently unreasonable and cannot be sustained either in law or logic, it cannot be galvanised from the consideration of the Court, just by baptising it as academic matter. The University is under obligation to state as to what prompted it to take a decision, disqualifying candidates, who are otherwise qualified, and how the measures adopted by it would advance that object. If the object itself is impermissible in law, no further consideration arises. Even if the object is laudable, the means adopted to achieve it are bound to be in conformity with the settled principles of law. The reason is that, howsoever laudable the object may be, in a society governed by Rule of Law, it cannot be permitted to be achieved, by objectionable or unlawful means.
26. The memo, which is challenged in this batch of writ petitions, is silent as to the objects, which the University intends to achieve. The counter affidavits are also not specific. The learned senior counsel for the respondents no doubt made an attempt to persuade the Court by submitting that such a stipulation is made to provide an opportunity to those who have not studied any PG course at all. Even here, much is left unexplained. To prevent a PG student from pursuing another PG course, there should be some legal basis. A Division Bench of this Court in THE REGISTRAR, NAGARJUNA UNIVERSITY vs. M.MADHAVA RAO (WA.No.361 of 1994 dated 1-2-1996) was dealing with identical situation. The contentions raised before it are evident from the following paragraph:
"The learned counsel for the appellants has contended that the university has resolved to encourage the vertical movements of the students and towards this end considered the graduates only for admission and that this applies also to courses for which entrance test is a requirement. The intention of the University was that chance must be given to the new comers."
27. After referring to the Judgment in Y.SRINVIAS RAO vs. J.VEERAIAH the Division Bench of this Court held as under:
"We, therefore, do not find any rationale in adopting the policy as indicated on behalf of the appellant-University. The impugned action of the appellants is clearly violative of Article 14 of the Constitution of India."
28. The ratio laid down therein squarely applies to the facts of this case. The judgment in T.Vijay Kumar case (4 supra) is distinguishable on facts as it deals with the contents of the course. Therefore, viewed from any angle, the decision of the University in restricting the so-called horizontal admissions cannot be sustained.
29. So far as the question of relief is concerned, the learned counsel for the respondents submitted that the admissions have since concluded and it may not be possible to accommodate the petitioners, even if writ petitions are allowed. He submits that any relief granted to the petitioners herein would affect the interests of certain candidates, and unless they are impleaded, no effective adjudication takes place. It needs to be observed that no individual rights as such are being adjudicated, which obviously necessitates the impleading of the affected parties. It is well settled that when a general principle of law is under consideration, it is not necessary to implead the affected parties, even in service matters. At any rate, the chances of such an eventuality to arise in this batch of writ petitions are very remote.
30. The learned senior counsel for the respondents has placed before this Court the particulars of the writ petitions, the courses, which they relate to, and the seats, which are available. From the particulars furnished by the University, the following information emerges:
Course Number of Petitioners Number of seats vacant M.A. (Eng. 1 40 M.A.(Edn.) 17 12 (various specialisations) M.Ed. 5 33 M.Li.Sc. 1 2
31. By and large, the number of available seats is more than the number of petitioners. It is not as if the petitioners are entitled to be admitted as a matter of course. Their cases have to be considered on the basis of the merit obtained by them in the entrance examinations. At the most, it is only in the M.A.(Education) that some adjustments need to be made. It is too premature to say as to whether all the petitioners, who have opted for that course, will come up for selection, if the impugned memo is ignored. If after that exercise, any readjustment is to be undertaken, the necessity to eliminate the candidates from the bottom may arise. The same has to be taken separately, duly following the procedure prescribed by law. As regards LL.B., course, the counselling is yet to start. Therefore, such a problem does not arise.
32. In the result, the writ petitions are allowed. Condition No.10 in the Instructions and Information for LL.B., course as well as the Memo dated 23-6-2002 for other courses are set aside. The respondents are directed to consider the cases of the petitioners strictly on the basis of the ranking assigned to them in the respective entrance examinations and without reference to the conditions, which are set aside. It is made clear that if the University is unable to provide seats to any of the petitioners, despite their superior merit, it shall be open to it either to create super-numerary seat or to displace the candidates from the bottom, duly following the procedure prescribed in law. No costs.