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Judgment
B. Subhashan Reddy, J
These 8 writ petitions raise a common point as to whether the seats in the educational institutions, particularly, professional courses, can be created in excess of the number sanctioned by the competent authorities, under the guise of supernumerary seats ?
In Writ Petitions 24294/96, 3097/ 98, 24565/97, 26445/96, 27137/96, 2691/97 and 3248/98, the relief sought for, be it individuals or the associations, is to set aside the order of either Sri Venkateswara University (for short "SV University") or Jawaharlal Nehru Technological University (for short "JNTU") giving a go-bye to the supernumerary posts created for the purpose of accommodating the children of teaching and non-teaching staff of the respective educational institutions, which were hitherto provided. The above writ petitions have been filed seeking to set aside the said order of cancellation of the policy for creation of supernumerary posts and to issue directives for the creation of supernumerary seats and to admit wards of the teaching and non-teaching staff of the above educational institutions, having regard to their inter se seniority treating them as special class and without reference to the merits of the other candidates who have appeared for the entrance examination. The plea is that the seats, whatever sanctioned, are meant for the students competing generally in the entrance examination and by providing supernumerary seats in excess of the said sanctioned strength, the other students are not put to any hardship and injustice. In effect, the plea is that the Universities are enjoying monopoly and to encourage their staff, both teaching and non-teaching, patronise can be made by providing seats to their wards in the manner prescribed restricting the consideration of merit among the said class without reference to the other candidates. The prime question is, whether this is permissible in our Constitution scheme or the statutes governing the creation and functioning of the Universities and also authorities under All India Council for Technical Education Act (for short "AICTE Act") and the like. Pending the disposal of the writ petitions, interim directions have been sought for to create extra supernumerary seats hi the disciplines mentioned in each of the writ petitions. Pending disposal of W.P.No.27137 of 1996, in W.P.MP.No.33508 of 1996 interim directions were issued to create one extra scat in each branch of Engineering in 3 colleges and one seat in B.E. (Architecture) in School of Planning and Architecture within the ambit of JNTU, for the purpose of admission of the children of the staff working in the said University, after obtaining undertaking from them to the effect that in the event of the dismissal of the writ petition, they will not claim any equity and also the refund of the fees already paid by them. Similar orders have been passed in W.P.M.P.No.32641 of 1996 in W.P.No.26445 of 1996. Similar is the case in W.P.M.P.No.28631 of 1997 in W.P.No.24565 of 1997. In W.P.Nos.24294 of 1996, 2691 of 1997 and 3097 and 3248 of 1998 no interim orders have been passed.
W.P.No.23794 of 1996 is filed by Prof. R. Ramamurthy, the then Vice-Chancellor of SV University, against the orders dated 17-10-1996 passed by Upatokayukta in Complaint No. 1731 of 1995. The order of Upalokayukta is on the premise that creation of supernumerary seats is impermissible and that the above Vice-Chancellor and the then Registrar, namely, Prof. R. Ramamurthy and K. Ranganadha Babu respectively of SV University, had misconducted themselves in creating supernumerary posts in spite of the law being contrary and recommended the imposition of cut of Rs.150/- per month in the salary for the remaining tenure of Prof. R. Ramamurthy and stoppage of one increment with cumulative effect against K. Ranganadha Babu and also issued directions that, in future, they be debarred from considering for the posts of Vice-Chancellors or Registrars or Rectors or any other responsible posts in all the Universities within the State and also directed the initiation of penal action. In the above writ petition, the plea of Prof. R. Ramamurthy is that supernumerary posts have been created not by him in individual capacity, but as a Vice-Chancellor and basing on the orders of this Court dated 15-4-1992 passed in W.P.No.13384 of 1991 and that he cannot be mulcted with any liability on account of the duties discharged as Vice-Chancellor. In W.V.M.P.N0.2754 of 1997, the JNTU has filed a petition on 11-9-1997 to vacate the interim order, but it is still pending. Interim directions were granted in W.P.M.P.No.28631 of 1997 on 29-10-1997. The interim order in W.P.MP.No.32641 of 1996 was issued on 11-12-1996. A vacate petition was filed by SV University in W.V.M.P.No.54 of 1997 on 16-1-1997, but the same has not been disposed of as yet.
In W.P.No.24565 of 1997, A.P. State Council of Higher Education has filed impleadment petition - W.P.M.P.No.5176 of 1998 - on 16-2-1998. W.P.M.P.No. 17284 of 1998 has been filed by the Commissioner of Technical Education seeking his impleadment in W.P.No.27137 of 1996. Since the above authorities are the necessary and proper parties for the adjudication of the cases, they are impleaded. The said authorities resist the claim of the writ petitioners for the grant of supernumerary posts on the ground that it is impermissible.
M/s. Imamullah Baig and P. Gangaiah Naidu, the learned Counsel as also the other learned Counsel appearing for the petitioners, submit that the seats strength, which has been sanctioned by the authorities and AICTE for taking education are being filled-up in accordance with the directions of the competent authority and those sanctioned seats are not being meddled with and supernumerary seats were being created to accommodate the children of the staff of the Universities and that is a welfare measure to encourage the said staff and by creating the supernumerary seats, the other students are not affected, that the Universities have got power to create supernumerary seats and for several years this was in vogue and now at the intervention of the authorities like the Commissioner of Technical Education, A.P. State Council for Higher Education, AICTE etc., the practice of creation of supernumerary seats for accommodating the children of the staff of the Universities (which includes staff of the constituent colleges) has been done away with, that the action of the respondents in cancelling the policy for creation of supernumerary seats is uncalled for and unwarranted and is illegal, that the established practice of creation of supernumerary seats should be allowed to be continued and that directions to that effect should be given. It is submitted by Mr. Imamullah Baig that such directions having been issued by way of interim orders and as the students have completed one year course, we should permit them to complete the course.
If the educational institutions were to be set-up without any regulation and as they please fit and proper, may be the plea of the petitioners can be accepted. But, that is not to be. Every educational institution, be it professional or non-professional, technical or otherwise, need a sanction for establishing the same in view of the provisions contained under the Andhra Pradesh Education Act, 1982, which is an Act to consolidate and amend the laws relating to the education system in the State of Andhra Pradesh for reforming, organising and developing the said educational system and to provide for matters connected therewith or incidental, thereto. Several provisions of the said Act deal with establishment and management thereof and allied matters. Section 19 of the said Act classifies the educational institutions as (a) State institutions, that is to say, educational institutions established or maintained and administered by the Government; (b) Local authority institutions, that is to say, educational institutions established or maintained and administered by a local authority; and (c) Private institutions, that is to say, educational institutions established or maintained and administered by any body of persons registered in the manner prescribed. Section 20 of the said Act contemplates obtaining of permission for establishment of such educational institutions. Several requirements are mentioned for such purpose and the power of monitoring the management is also provided and the Governmental authorities can intervene whenever there is a contravention of the provisions of the statute or the rules made thereunder.
An undue amounts were being collected by the educational institutions and as the A.P. Education Act, 1982 did not make any such provisions specifically, the Government felt that there should be another specific legislation to curb the said practice, to raise the standards of education and to see that the merit does not suffer and the students having merit are not frustrated by reason of economic disability; as such, A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (hereinafter referred to as ''A.P. Act 5/83) was enacted. From time to time it underwent amendments and so also the rules framed thereunder.
''Educational Institution'' is defined u/s 2(c) of A.P. Act 5/83 as a college, a school imparting education upto and inclusive of tenth class or other institution by whatever name called, whether managed by Government, private body, local authority or University and carrying on the activity of imparting education therein, whether technical or otherwise, and includes a Polytechnic, Industrial Training Institute and a Teacher Training Institute, but does not include a tutorial institution; and ''Management'' is defined u/s 2(e) of the said Act as the managing committee or the governing body by whatever name called of an educational institution to which the affairs of the said institution are entrusted and where such affairs are entrusted to any person whether called by the name of Secretary, Correspondent or by any other name, include also such person. Section 2(i) of the said Act says that all words and expressions used but not defined in this Act shall have the meanings assigned to them in the Andhra Pradesh Education Act, 1982.
The admission into educational institutions is by merit in accordance with the rankings, but by observing the rule of reservation to Scheduled Castes, Scheduled Tribes and Backward Classes. Of course, the area reservation as contemplated by the A.P. Educational Institutions (Regulation of Admissions) Order, 1974, which was framed in exercise of the powers contained under Article 371D of the Constitution of India, has got to be followed first and then comes the class reservation. But, there is no reservation for class like ''the children of the staff of any University''. In feet, such a class is not one contemplated by the provisions of the Constitution either in general or specifically in Article 15, but it is a matter of concern that some Universities went on making reservations of some seats in favour of children of their staff members. It is not relevant as to whether they are out of the actual strength granted by the authorities concerned or by way of creation of supernumerary seats. The Universities are not separate States discharging sovereign functions. They are part and parcel of the sovereign State and in the instant cases, the State of Andhra Pradesh, which has created the Universities under the enactments made by the Legislature, has provided funds to them. Further, all Universities, in certain aspects, are governed by the provisions of the University Grants Commission Act, 1956. Every educational institution which is permitted to be established, should be affiliated to the University having area of operation and Universities will consider as to whether the said educational institution should be granted affiliation or not. The University is the authority for the grant of affiliation and it is the only authority to conduct examinations and issue certificates. There are other statutory bodies like AICTE concerning the Technical Education and they fix several norms like standard of education and the infrastructure needed for the same and include the strength of students which can be admitted. Every educational institution including the University has to strictly comply with such orders passed and there is no power vested for any University or other educational institution to create any supernumerary seat. While monarchical democracy has been replaced by people''s democracy and the hereditary system of Archakas, patels, Patwaris and the like has been abolished having regard to the real principles of democracy, this kind of reservation of seats, even if supernumerary, in favour of the children of the staff of the Universities is nothing but propagation and perpetuation of hereditary system by indirect method apart from being irrational and impermissible classification. In fact, way back in the year l985 in S.S.Jaipdeep v. Registrar, Andhra University 1985 (2) APU 211, a learned single Judge of this Court has set aside the rule of reservation, which was practised by the Andhra University for the children of its employees to gain entrance into Engineering College. The said view of the learned single Judge was upheld by a Division Bench of this Court while dealing with a similar offending practice by the Osmania University in favour of its employees in Vijaya Govind v. Osmania University 1987 (2) ALT 283.
The argument of Mr. P. Gangaiah Naidu, the learned Counsel for the petitioners, that the above two Judgments are distinguishable on the ground that SV University is financed by Tirumala Tirupathi Devasthanams and not by the Government does not impress us for the reason that any educational institution regardless of the source of funding, whether Governmental or otherwise, is bound by the statutes and the rules framed thereunder mentioned supra. Mr. Gangaiah Naidu, further draws our attention to a Judgment of a learned single Judge of this Court passed in W.P.No. 13384 of 1991 on 15-4-1992 by which the policy of SV University giving a go-bye to the earlier practice of reservation of seats to the children of its staff was interfered with by this Court and a direction was issued to create supernumerary seats. We do not feel it necessary to dwell on the reasoning in the said judgment by a comparative case law and suffice it to say that in view of the authoritative pronouncement of a Constitution Bench of the Supreme Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., , the view taken by the learned single Judge in W.P.No.13384 of 1991 stands overruled. It was held in Unni Krishnan''s case (supra) that:
"No private educational institution can survive or subsist without recognition and/ or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory - in the interest of general public - upon the authority granting recognition of affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of student. Since the recognising/affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privileged, to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/ affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part HI; its activity is bound to be characterised as unconstitutional and illegal. To reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Articles 14 and 15. If so, it cannot confer such immunity upon its affiliates."
In the said case, it was also held "There shall be no quota reserved for the management or for any family, caste or community which may have established such college." These were quoted with approval in a'' latest Supreme Court Judgment in Thapar Institute of Engineering and Technology and Others Vs. State of Punjab and Another, , making a survey of entire case law on the subject and holding that the principles enunciated by the Supreme Court in Unni Krishnan''s case (supra) is the law of the land and has to be given effect to and even citing the decision in State of Gujarat and Others Vs. Meghji Pethraj Shah Charitable Trust and Others, , in which the principle in Unni Krishnan''s case was followed. Suffice it to say that the proposition that there cannot be any reservation in favour of the staff of the University or their children is no mere res Integra in view of the authoritative pronouncement of the Supreme Court in Unni Krishnan''s case and the latest judgment in Thapar Institute of Engineering and Technology v. State of Punjab (supra), which in fact, are directly on the point involved in the instant cases.
Mr. Imamullah Baig, the learned Counsel for the petitioners, submits that equitable consideration may be shown to the petitioners in his case on the ground that they already undergone one year course in Engineering. We cannot accede to the said contention for the reason that no equity can be pleaded by the petitioners for the reason that they have invited the interim order on condition of not pleading equities and take the consequences of the dismissal of the writ petition.
In view of what is stated-supra, we cannot find fault with the respondent-Universities, be it Sri Venkateswara University or Jawaharlal Nehru Technological University, for withdrawing the earlier practice of reservation in favour of the children of the staff of the said Universities and we hold that no such reservations are permissible under law.
In the circumstances, W.P. Nos.24294, 26445 and 27137 of 1996, 2691 and 24565 of 1997 and 3097 and 3248 of 1998 are dismissed. It is needless to mention that the interim directions granted in some of the writ petitions mentioned above stand vacated and the students admitted on the basis of the said interim directions are liable to be discontinued from further studies as if they were not admitted in the courses.
Insofar as W.P,No.23794 of 1996 is concerned, as it is stated that the reservation for the children of the staff members of the Sri Venkateswara University was provided pursuant to the Judgment of this Court in W.P.No.13384 of 1991, we absolve the petitioner of the liability of his actions and set aside the order passed by Upalokayukta against him with an observation that it is unfair for the petitioner to plead the continuance of the reservation in favour of the children of the staff members of the University inspite of knowing the law of the land laid down by the Supreme Court in Unni Krishnan ''s case.
W.P.No.23794 of 1996 is accordingly disposed of . There shall be no order as to costs in any of the cases.