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Judgment
These writ petitions raise the question of validity of Rule X of the rules and regulations of MBA Admissions in Osmania University and its affiliated colleges, allocating 20% of the seats to the candidates who have studied the qualifying examination in media other than English (medium).
The facts leading to the filing of the writ petitions are stated, in brief, as under:
WPNo.27102/97:
The petitioner appeared for MBACET 1997, the common entrance test for MBA course, held on 25-5-1997 with Hall ticket No.131228. She secured 114 marks out of the maximum of 200 marks and she was allotted State Rank of 03981 indicating that she should apply to the University concerned. She received a call-letter from the convenor requiring her to appear at the spot admissions venue on 17-10-1997. All the categories of students viz., OC, BC, SC, ST, Male, Female English medium and Telugu medium, who secured 122 and above marks would be considered for admission on 15-10-1997 and 16-10-1997 : All categories of students with the following marks were required to attend on 17-10-1997.
(a) Regjonalmedium-local-maleandfemale 95-112 marks;
(b) Female English medium 112 - 121 marks;
(c) Female Regional medium - Local 60 -121 marks.
Since the petitioner fell in (b) category, she reported to the Convenor on 17-10-1997.
English medium female students of open category who secured 121 - 118 marks were allotted seats and thereupon the admissions were closed for the category of female students. Thereafter, the seats were allotted to the boys and girls in the Regional medium open category. Boys who secured marks between 107 and 121 and girls between 107 and 117 were allotted seats. Thus, the boys and girls with regional medium, though secured less number of marks, were considered for admissions.
WP No.29891/97:
The petitioner appeared for MBACET 97, with Hall ticket No.124594 held on 25-5-1997. She secured 104 marks and was allotted State rank of 7719. Shedid not receive any call letter from the Convenor, MBA admissions, Osmania University, at the time of 1st phase of spot admissions commenced on 15-10-1997. However, she noticed from news paper announcement that all categories of female candidates belonging to English medium with marks in the range 121-112 and the Telugu medium female candidates with marks in the range 121-60 were called for spot admissions on 17-10-1997. Even though she obtained 104 marks, she was not considered for admission.
WPNo.33-312/97:
The petitioner who also seeks admission to MBA in Osmania University had obtained 106 marks with the State rank of 6831 at the MBACET 1997. It is alleged in the affidavit that the regional medium male candidates of OC who secured 121-107 marks and girls who secured 117-107 marks were allotted seats taking into consideration the reservation provided by the University rules.
Since the petitioner admittedly had obtained only 106 marks, the petitioner could not have any grievance, as the minimum mark that was taken into consideration even for regional medium girl students was 107. However, it is for the University to verify whether candidates with regional medium with lesser marks than the petitioner were considered for admission. The petitioner filed the writ petition for a direction to the respondent to prepare a list of eligible candidates without reference to Rule X of Osmania University Admission Rules.
It is the case of the petitioners that the Osmania University under Rule X of Osmania University MBA & MCA Admissions, 1997, Rules, Regulations and Instructions, (for short ''O.U. Admissions Rules''), for admissions into the University and its affiliated colleges, has allocated 20% of the available seats to the candidates who have studied the qualifying examination in a medium other than English. The statutory rules governing the entrance examination for MBACET & MCACET, called The Andhra Pradesh Common Entrance for admission into Post-Graduate (MBA and MCA) Professional Courses Test Rules, 1996 (for short ''the Rules''), were issued by the Government under A.P. Educational Institutions (Regulation of Admission & Prohibition of Capitation Fees) Act, 1983 (Act 5/83) (for short ''the Act'') in G.O.Ms.No.119, Education (EC-2) Department, dated 28-4-1996. As per the rules, candidates seeking admission for MBA or MCA should appear for the common entrance test, where the merit of the candidates would be assessed and which is the basis for admission into First Year course of MBA/MCA. Candidate should have passed/ appeared for Bachelor Degree Examination of any University. In the Act and the rules, which are the exclusive provisions of law governing the admissions, when no reservation has been shown to the candidates with regional medium candidates, the action of the respondents allocating 20% of seats to candidates with regional medium offends Articles 14 and 15 of the Constitution and the rules. It was also contended that every care was taken by the authorities in designing the paper to ensure that the regional medium candidates are not dis-advantageously placed vis-a-vis English medium candidates. Questions are given both in English and Telugu media so that the candidates of regional medium do not suffer any disadvantage due to lack of proficiency in English compared to English medium students. Hence, there was no rationale to provide for reservation in seats for the regional medium candidates.
The contentions have been refuted by the learned Standing Counsel for the University submitting that qualifying in the entrance test does not confer a right for admission into the course in Osmania University. The admission is subject to rules and regulations prescribed by the University. The University has taken a policy decision to provide 20% reservation, which is incorporated in Rule X of O.U. Admission Rules, for admission into P.G. Courses in Osmania University, in pursuance of Section 5(17} of the A.P. Universities Act, 1991 (for short ''Act 4/91''), which envisaged for making special provisions for the spread of higher education among the educationally backward classes. The said policy cannot be questioned as it was a decision taken by the University on the advice of the Academic Senate and the Executive Council, the Apex Competent academic bodies of the University. It was further submitted that the said reservation does not offend but is in conformity with Articles 14 and 15 of the Constitution. As the Osmania University region being educationally backward the non-English medium students have to be given some protection to pursue the P.G. Courses in promotion of education and such protective discrimination stands the test of equality under Article 14 of the Constitution. It was lastly contended that the Act 4/91 being special enactment dealing with the admissions to all courses in Osmania University including P.G. Courses, has got over-rding efTect over other enactment.
To appreciate the contentions it is profitable to notice the provisions of law relating to Common Entrance Test-MBACET. Hitherto, the admissions to MBA and MCA were being made on the basis of common entrance Test by different individual Universities in the State. The Government in GO. Ms. No-64, Education, dated 8-3-1996 ordered to conduct separate common entrance test applicable throughout the State, for MBA and MCA admissions from the academic year 1996-97 on the same pattern as is done for Engineering, Medical and Agricultural Courses. Admission into the above courses in the University and its affiliated colleges was based on the comparative ranking obtaining in the common entrance examination. Accordingly the rules for entrance test were made in G.O. Ms. No.l 19 Education, dated. 28-4-1996 in exercise of powers conferred by Sections 3 and 12 of the Act. The rules are applicable to alt institutions in the State imparting P.G. Course in MBA and MCA. Admissions to the said courses have to be made through a common entrance test called MBA & MCACET. Rule 4 of the rules prescribes the eligibility qualification for admission to the common entrance test. To be eligible to appear at the test one should have passed/appeared a Bachelor Degree of the University in A.P. or any other University recognised as equivalent. As per Rule 5, the medium of entrance test shall be English and Telugu languages; the qualifying marks for ranking for general category of candidates shall be 30%, however no minimum qualifying marks was prescribed to SC and ST candidates. The candidate should apply to the University concerned and satisfy all the eligibility conditions of admission stipulated by the University. The admission is based on merit as assessed in the entrance test. A merit list wil! be prepared in the order of marks obtained and the admissions shall be done according to such list. Rule 6 provides for the preparation of the list, Region-wise, community-wise and as per the reservations made for other categories of reservations. Every candidate shall be issued the Rank-card showing the marks obtained region-wise, community-wise and minority community lists.
It is also necessary to notice the provisions of the Act under which the above rules for admission have been made. In order to curb the undesirable practise of collecting capitation fee at the time of admitting students into educational institutions and to avoid frustration among the meritorious and indigent students and to maintain excellence in the standard of education the State Legislature has enacted the Act. Admissions into all institutions including the Universities, whether technical or otherwise, and their affiliated colleges, come within the sweep of the Act. Sections 3 and 12 are relevant for our purpose. The regulation of the admissions in educational institutions is provided in Section3. Sub-section (1) mandates that subject to such rules as may be made in this behalf admissions be made eitfier on the basis of marks obtained in the qualifying examination or on the basis of the ranking assigned in the common entrance test conducted in the manner prescribed under the rules made thereunder. Sub-section (2) speaks of permissible reservations. The admissions shall be subject to such rules as have been made by the Government in regard to reservation of seats to candidates belonging to SC, ST, BC and other categories of students as notified by the Government. Sub-section (3) is not necessary for our purpose. By virtue of Section 12 the provisions of the Act shall have effect notwithstanding anything inconsistent contained in any other law. Exercising the power u/s 15 of the Act, the rules are made in G.O.Ms.No.119, Education, dated 28-4-1996, as stated supra.
The Osmania University issued rules and regulations for admissions to MBA, applicable to the University and all colleges undents jurisdiction. The eligibility conditions are rules IV, VII and VIH-
(1) appearing for the MB ACET conducted in May 1997, securing minimum marks;
(2) must have passed Bachelor''s degree examination securing 50% marks (45% of marks for SC and ST) in the aggregate.
We are not concerned with MBA (Evening), vide Rule VIII.
Reservation was made in Rule IX of O.U, Admission Rules (wrongly printed as Rule VUI) for local and non-local candidates, SC, ST and BC candidates. Rule X which is the impugned rule speaks of allocation of seats i.e., 20% of seats, for candidates of media other than English at the qualifying examination. (Other rules are, however, not necessary for the determination of the questions raised in these cases).
A close scrutiny of the above provisions reveals that the admissions to MBA in the State in the Universities and their affiliated colleges are governed by the provisions of the Act and the rules made thereunder and none other. It, therefore, follows that the admission made contrary to the provisions of the Act and the rules made thereunder is illegal. Section 3 of the Act, as seen supra, regulates the admissions to MBA, which shall be on the basis of merit and the rank assigned in the entrance test. Sub-section (2) of Section 3 obligates that admissions shall be subject to the reservations to SC, ST, BC and other categories as per rules and may be notified by the Government. Thus, the admissions are purely on merit but subject to the reservations that can be provided in sub-section (2). The rules do not provide for any other reservation. The rules also stipulate that admission shall be solely on the basis of merit in the MBACET. Reservation is provided region-wise and community-wise. The rank card also reflects the reservation as above. The Act and the rules do not speak of allocation of seats for regional medium candidates. Such reservation is found only in the O.U. Admissions Rules, made by the University.
Learned Counsel for the petitioners, therefore, contends that the providing, by way of Rule X of the O.U. Admissions Rules by the Osmania University, 20% reservation for regional medium candidates, is wholly impermissible. However, learned Standing Counsel for the University refutes the contentions. He relies upon Rule 5(7) of the rules to contend that mere appearance for the entrance test does not entitle a candidate to be considered for admission. It is further necessary that the candidate should satisfy all conditions of admission stipulated by the concerned University. The reservation of 20% for regional medium candidates having been provided under Rule X of the O.U. Admissions rules by the University, he contends, that it should follow that such reservation should be treated as conforming with the rules made under the Act.
The argument appears to be plausible at the first blush but it does not bear close scrutiny. It is no doubt true that mere appearance in the entrance test does not entitle a candidate to be considered for admission. He should in addition apply for the University and also satisfy the eligibility conditions of admission stipulated by the University. In the instant case, petitioners have applied for the University and also satisfied the eligibility conditions mentioned in the rules made by the University. It is important to notice that only eligibility condition should be satisfied, not other conditions of admission made by the University. A perusal oftheO.U. Admissions Rules reveal that only Rules IV, Vn and VUI deal with the eligibility conditions. Accordingly, such conditions are possession of minimum degree qualification in addition to the appearance at the common entrance test. All the petitioners have passed degree and thus, have satisfied the eligibility condition. The reservation of 20% for regional medium students is shown in Rules IX and X of the O.U. Admission rules. Hence, they are not part of eligibility conditions. Thus the reservation for regional medium candidates made by the University cannot be said to be in accordance with the Act or the rules made thereunder.
The scheme of the Act and the rules makes it clear that the Legislature desired that merit should be the sole basis of admissions into colleges, to maintain excellency in the standards of education. Law is well settled, as held by the Supreme Court in many cases where selection under the common entrance test was in question, that the admissions shall be only made on the basis of merit at the common entrance test, subject to, however, the reservations that are permissible under law. Section 3(1) of the Act clearly mandates that the marks should be the basis of ranking assigned in the entrance test to be conducted in the manner prescribed. Hence, the rules framed under the Act cannot empower giving ranking otherwise than by merit. However, it is permissibleto provide for reservation as per the Act. Such reservations, admittedly, have already been provided, as is evident from the O.U. Admissions rules. Hence, the further reservation of 20% to regional medium students, which was not provided by sub-section (2) of Section 3 of the Act appears to be wholly repugnant to the provisions of the Act and the rules. But the learned Standing Counsel for the University and the learned Counsel for the other respondents submit thus such allocation is not contrary to sub-section (2) of Section 3 of the Act, that it would be in addition to the reservations contemplated u/s 3 which cannot be said to be impermissible under sub-section (2) of Section 3. Osmania University area being not only backward socially but also in the field of education as only few schools are there in many places and even in such schools only English is being taught, there is every justification to protect the interest of students having regional medium of education. Section 5(17) of Act 4/91 empowers the University to provide for the spread of higher education among educationally backward classes of citizens. Section 25(m) of Act 4/91 also empowers to make regulations for the use of Tdugu as medium of instruction. In the exercise of such power, the University framed the O.U. Admissions rules allocating 20% of seats forthe regional medium candidate and such power being traceable to Article 15(4) of the Constitution, cannot be questioned on the ground of repugnancy to Sections of the Act or the rules made thereunder. Since the said reservation bang also the decision taken by the University under the provisions of the Act and the statute with the avowed object of encouraging students with regional medium, there is no warrant for this Court to interfere with the policy decision of the University in the academic matters. Thus run the arguments of the learned Standing Counsel for the University as well as the learned Counsel for the other respondents.
I am not prepared, however, to accept the above contentions. In fact the above contentions would not properly arise for our discussion in this case. The short question that would arise is as to the applicability of the provisions of the Act and the rules to the admissions in question. When once it is not disputed by the learned Counsel opposing the petitions that Section 3 of the Act covers entirely the field of admissions in question and when the impugned Rule X of the O.U. Admissions Rules, is found to be repugnant to Section 3 of the Act and the rules, the debate should come to an end and the petitioners should succeed. But the learned Counsel for the petitioner attempted to show further that it is permissible forthe University to provide yet some more reservations that are not contemplated u/s 3 of the Act. Let us look once more at sub-section (2) of Section 3 of the Act, which reads thus :
"(2) The admission into educational institutions under sub-section (1) shall be subject to such rules as may be made by the Government in regard to reservation of seats to the members belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and other categones of students as may be notified by the Government in this behalf and the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974."
Admissions are made subject to the rules of reservation made by the Government. Note the expression ''subject to''. That means the admissions though should be on the basis of merit (sub-section (1), but they are however, subject to reservations as stated under sub-section (2). The Dictionary meaning of ''subject to'' is "conditional upon" (The Concise Oxford Dictionary Eighth Edition 1990 and the Chambers Dictionary 20th Century 1983 Edition). Therefore, there is no warrant to hold that the admissions areliableto or subject to any other reservations contemplated under sub-section (2), The Act being exclusive and self-contained, govern all the admissions to P.G. Courses. The University cannot make any other or further reservations. The University has got a limited role that is, to satisfy itself whether the eligibility conditions for admissions are satisfied or not. u/s 12 of the Act, the provisions of the Act shall have over-riding effect over other laws. The supremacy of the Act over other laws cannot therefore be doubted. In the Act itself Backward Class is defined in Section 2(a) as socially and educationally backward class for the purpose of Article 15(4) of the Constitution. Section 3, therefore, has taken care of such reservations and provided the same in the Act and the University has accordingly followed such reservations in its rules. Again 85% of seats have also been reserved for local people, keeping in view the educational backwardness of the Osmania University area. The idea of providing a further reservation once again for the same class of people appears to be wholly illegal and contrary to the Act and the rules. Section 25(m) of Act 4/91 cannot be of assistance to the respondents, since it empowers the University to make regulations for the use of Telugu as medium of instruction. It does not speak of providing reservation for Telugu medium people. Article 14 of the Constitution commands the State to treat all persons equal before the law. Article 15 of the Constitution bars discrimination on the grounds of religion, race, caste, sex place of birth or any of them. Thus, die principle of equality laid down in Article 14, is spelt out to different situations, in greater detail in Article 15 and the succeeding articles. Article 29(2) of the Constitution prohibits discrimination, based solely on the grounds of religion, caste, race or language in admission to educational institutions maintained by the State. Thus, Article 29(2) offers protection against the denial of admissions into educational institution. Hence, the State has rightly taken into consideration the merit as the main criterion for admission into educational institutions in the State, with regard to admissions in question as is evident u/s 3 of the Act. However, in view of Article 15(4) of the Constitution enabling the State from providing any special provision for advancement in socially and educationally backward class of citizens or for the SC and ST, sub-section (2) of Section 3 provided such reservations. Law is well settled that the provision regarding reservations should be strictly construed as it works out as an exception to the general rule of non-discrimination by the State and from maintaining the merit in educational institutions. A plain reading of sub-section (2) of Section 3 of the Act permits such reservation. It is not possible to construe that the University is also entitled for making any other reservations not contemplated under sub-section (2) such construction would offend Article 15(4) of the Constitution. Hence, Rule X should be held as repugnant to the Act and the rules.
In view of the above discussion, I do not think it necessary to discuss in this case whether the University''s power u/s 5(17) of the Act 4/91 in framing Rule X of the O.U. Admissions Rules, as being traceable to Article 15(4) of the Constitution, would prevail over Section 3 of the Act and the rules made thereunder, since the admissions in question are held to be governed by the Act and the rules. It is profitable in this context to cite the decision of the Supreme Court in V.N. Sunanda Reddy and others Vs. State of Andhra Pradesh and others, . Construing the question of extending 5% weightage to all Telugu medium candidates in Group II examinations conducted by the A.P. Public Service Commission for direct recruitment to the public service, it was held that such weightage was arbitrary and violative of Articles 14 and 16 of the Constitution, holding as follows :
"The aforesaid sub-classification of meritorious candidates into Telugu medium candidates and non-Telugu medium candidates insofar as their graduation is concerned does not have any rational nexus to the object sought to be achieved thereby. If the object is to have proficiency in Telugu language which is the official language of the State, it lias to be kept in view that even those candidates who have studied in non-Telugu medium like English or Hindi at graduation level also have to pass in one compulsory paper of Telugu. It may be pointed out that State had adopted, after passing of the Official Language Act in 1966, 3-Ianguage formula in the field of education. The students studying in other media are also required to pass a paper in Telugu language. Therefore, they have got working knowledge of Telugu. It has also to be kept in view that even after they are appointed to the posts for which they competed, they have to clear Telugu language examination before getting increment or even confirmation and if they do not dearthis examination, they are liable to be discharged. If that is so, proficiency in Telugu language at entry point pales into insignificance so far as recruitment to these posts is concerned. It may be that the concerned selected candidates at lower echelon of service may have to deal with public in Telugu language or may have to correspond with other public departments or authorities in Telugu language, but that is well ensured by the recruitment of passing Telugu language examination after being recruited to these posts. Under these circumstances, giving a further weightage of 35 or 40 marks to such candidates even prior to their entry in service has really no nexus to the object sought to be achieved by such provision. It cannot be said that merely because a person has passed his graduation in Telugu medium is more proficient in Telugu and not the candidate who has passed his graduation in any other language. There may be cases where a student may have passed his matriculation examination in Telugu medium, but he may have studied his intermediate and under-graduation course in English medium and vice versa. It must, therefore, be held that provision for granting additional weightage of marks to candidates who have passed their graduation in Telugu medium is arbitrary and does not justify the sub-classification of meritorious candidates into Telugu medium candidates and non-Telugu medium candidates as sought to be done by the said impugned provision. In this connection, we may profitably refer to a decision of this Court in the case of State of Maharashtra Vs. Raj Kumar, , wherein a rule of recruitment framed by the Government of Maharashtra giving weightage in recruitment to a candidate coming from rural area and who had passed SSC examination held at villages or places with ''C'' type municipality was held to be violative of Articles 14 and 16 of the Constitution, The Court speaking through Fazal Ali, J. found that there was a provision that during viva voce the Board would put relevant questions to Judge the suitability of candidate for working in rural area and to test his knowledge of rural problems. This being a sufficient safeguard to test the ability of candidate the express provision for giving weightage would virtually convert merit into demerit and demerit into merit and would be per se violative of Article 14. In our view the situation in the present case is also similar, We respectfully concur with the views expressed by Fazal Ali, J.
For all these reasons, it must be held that the present rule of weightage to be given to candidates who have passed graduation in Telugu medium is violative of Articles 14 and 16 of the Constitution and does not represent any valid and reasonable classification having a rational nexus to the object sought to be achieved thereby."
The above observations are opposite to the fact in this case and accordingly it should be he!d that the allocation of 20% of seats to regional medium candidates is violative of Articles 14, 15 and 29(2) of the Constitution and also in addition to the Act and the rules.
Learned Standing Counsel for the University has also contended that the Act 4/91 being a special enactment governing all admissions into the University, the provisions of the said Act will have overriding effect over the provisions of the Act and the rules. lamafraidthatthiscontentiondoesnot arise in this case, since, as held supra, the admissions have been made by the State in all the Universities and their affiliated colleges following the provisions of the Act and the Government has also framed rules under the Actgovemingthesaidadmissions. Thepower of the University is not in question in this case. The entrance test is common for all the Universities, but only admissions are individualised by inviting applications from the qualified candidates.
Learned Standing Counsel for the University submits that out of the 720 seats in the 1st year MBA course in Osmania University, 600 seats have already been filled up and classes have also been commenced from October, 1997 and therefore he prays not to unsettle the admissions already made, which would only cause inconvenience to the students of this academic year. It is true that the petitioners have come to this Court only in the last week ofOctober, 1997, by which time the classes have been commenced, admissions having been completed for most of the seats. Hence, I do not find any justification in interfering with the admissions already made. The petitioners can be provided relief by directing the University to fill up the remaining seats without reference to Rule X of the O.U. Admissions Rules to 1st year MBA Course, 1997. This Court has given a direction on 5-12-1997 in WPMPNo.31543/97 in WP No.27102/97 and batch, directing the University to fill up the remaining seats without reference to Rule X of the O.U. Admissions Rules.
In the result, the writ petitions are allowed. Rule X of Osmania University MB A & MCA Admissions 1997, Rules, Regulations and Instructions, is struck down.
The respondent-University is directed, for this academic year to proceed with the admissions for the remaining seats as on 5-12-1997 without reference to Rule X of the O.U. Admissions Rules, for the 1st year MBA Course of Osmania University for 1997 and in accordance with the A.P. Educational Institutions (Regulation of Admission & Prohibition of Capitation Fees) Act, 1983 and the rules made in G.O. Ms. No. 119, Education (EC.2) Department, dated 28-4-1996. It is open to the petitioners to approach this Court by way of WPMP for necessary directions, if the petitioners are not given a seat in accordance with the above directions of this Court. This exercise shall be complied within three weeks from the date of receipt of a copy of tins order,
In the circumstances, no order as to costs.