Telangana High Court
Boddu Manisha vs Sri Konda Laxman Telangana State ... on 26 February, 2021
Bench: Challa Kodanda Ram
THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM
WRIT PETITION No. 27777 of 2017
AND
WRIT PETITION No. 22258 of 2020
COMMON ORDER:
Petitioner being the same and the relief claimed also being
essentially against the University and interconnected, both the
Writ Petitions are heard together and are disposed of by this
common order.
W.P.No.27777 of 2017
Petitioner claims that she is a resident of Salapally Village,
Peddapalli Mandal, Jagital District; that she passed 10th class
examination in March, 2011 and thereafter completed Intermediate
in March, 2013; that she being a girl from rural and agricultural
background, she was interested in pursuing Diploma in
Horticulture Course and made an Application pursuant to the
Notification issued by the respondent university on 26.07.2017 for
the Academic Year 2017-18; that the eligibility criteria was
prescribed as a pass in 10th class, thereby, even the candidates
who passed the 10th class compartmentally also were eligible; that
there is a rider stating that persons who possess the qualification
of Intermediate and above are ineligible though they may satisfy
other criteria with respect to age and other subjects; that the
petitioner therefore approached the Vice Chancellor and also the
Secretary to the Government making a request to waive the said
stipulation pointing it out as irrational and unreasonable; that as
there was no response, the petitioner approached this Court.
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On 09.10.2017, when the writ petition was at the stage of
admission, this Court, while granting time for the respondent
University to file counter affidavit justifying the condition making a
candidate with higher qualification ineligible, directed to receive
the Application of the petitioner and keep one seat vacant.
Against the order dated 09.10.2017 passed in the writ
petition, the petitioner filed Writ Appeal No.450 of 2018 on the
ground that classes have commenced and that she is losing time
and therefore prayed for granting of admission, subject to result of
the writ petition. The Division Bench disposed of the Writ Appeal
on 16.03.2018 giving liberty to the petitioner to seek early hearing
of the Writ Petition. However, the matter did not appear on board.
W.P.No.22258 of 2020
In this writ petition also, the petitioner challenged the Clause
1-B in the Admission Notification for Diploma in Horticulture
course for the Academic Year 2020-21 whereunder the
Intermediate qualified candidates were rendered ineligible. The
petitioner had also sought direction to the respondent University to
grant admission to the petitioner in Diploma in Horticulture for the
AY 2020-21.
A counter affidavit is filed by the University stating that by
the date of order dated 09.10.2017 in W.P.No.27777 of 2017, 49
seats were filled, however, one seat which was reserved for Ex-
Serviceman Quota could not be filled as there was no eligible
candidate. In paras 4 and 5 of the counter, it has been stated that
"In total, 286 Applications were received for 50 seats, out of which
23 were rejected as they were not adhering to the conditions
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specified in the Notification, out of which one candidate's application
was rejected since she passed the Intermediate examination. Insofar
as the writ petitioner herein, her application was processed as she
has enclosed only 10th class certificate. In the merit list drawn up
from among the 263 applicants, the writ petitioner's name finds
place at Sl.No.202 with application No. 127, since she secured
marks of 9.2 GPA. From among the candidates who secured same
GPA of 9.2, merit list was drawn up on the basis of the date of birth.
The writ petitioner was ranked at 193 and her social status is
recorded as BC-D local. Out of 263 candidates, 93 candidates
secured 10 out of 10 GPA. Among the 93 candidates, 27 candidates
belong to BC-D category. Thus, the writ petitioner is not within the
zone of consideration for admission into Diploma courses for the
year 2020-21.
It is submitted that the respondent university called for
counseling of the applicants who secured rank from 1 to 150 on
07.12.2020. In the counseling held on 07.12.2020 and 14.12.2020
all the 50 seats were filled up. Thus, there are no seats available to
consider the writ petitioner's candidature."
Further in the counter affidavit, adverting to the impugned
condition that makes the candidates with higher qualification of
Intermediate and above ineligible, it was stated as follows:
"...... The prescription of the said qualification is keeping in view of
the fact that these Diploma courses are offered for the candidates
who are residing in the rural villages with an intention to providing
them training in Horticulture technology. The diploma course is of
two years duration comprising of two semesters of each. The
prescription of the qualification is rationale keeping in view of the
fact that persons with higher qualification are eligible for other
courses offered by the University viz. Degree courses in Horticulture.
Thus, there is no irrationality in prescription of educational
qualifications for admission into Diploma courses offered by the
university. The educational qualifications for admission into
Diploma courses prescribed in the composite State were continued
to be in force even after formation of the respondent university in the
State of Telangana. The writ petitioner filed W.P. No. 18517 of 2017
against Dr. YSR Horticultural University, A.P. seeking a similar
direction and the same is pending before the Hon'ble High Court.
It is submitted that the judgment of the Hon'ble Supreme Court in Y.
Srinivasa Rao v. J. Veeraiah and others, relied upon by the writ
petitioner, arises under the A.P. Scheduled Commodities (Regulation
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of Distribution of Card System) Order, 1973 for appointment of Fair
Price Shop Dealer. In the notification, it was specified that
preference will be given to the candidates who are experienced in the
business, further preference will also be given to the unemployed
educated persons, ladies, handicapped persons in case of equal
qualification among the candidates. Whereas in the Government
Order, it was specified that among the unemployed educated
persons, preference will be given to the less educated persons. The
said procedure was found fault with on the premise that in the
absence of guidelines in selecting the fair price shop dealer.
Whereas in the present case, the notification clearly specified that
the candidates who pass Intermediate and above are not eligible to
apply. The said prescription was made keeping in view of the fact
that the candidates with Intermediate are not eligible to apply for
Degree courses in Horticulture offered by the university, whereas
Diploma in Horticulture Technology is meant for self-employment.
Thus, the Notification clearly specifies the prescription of the
qualification keeping in view the object for which Polytechnic
institutions are run by the University. The said prescription of the
educational qualification for admission into polytechnic courses is
rationale and do not violate the provisions of Article 14 of
Constitution of India. Clear guidelines have also been specified in
the notification prescribing the persons who are not eligible for the
Diploma courses. Thus, the Writ Petition challenging the admission
notification dated 17.09.2020 is devoid of merits and the same is
liable to be dismissed."
It was also stated in the counter that even assuming the said
condition is liable to be ignored, for the AY 2020-21, the petitioner
with a rank of 193 would not be in the zone of consideration as
there are about 40 candidates with better rank than her, and total
seats were filled up and there is no vacancy for this academic year
and also there is no possibility of creating a supernumerary seat.
Heard learned counsel for the petitioner Sri Peeta Raman
and learned Senior Counsel Sri G. Vidya Sagar on behalf of the
respondent University.
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Facts
not being in dispute, the issues that arise for
consideration are:-
1) Whether disqualifying the candidates, who are
otherwise eligible, from acquiring a
qualification/skill, merely on account of their
possessing higher qualification than the one
prescribed for admission to a particular course, is
justifiable; and whether such restriction imposed
by way of clause 1-B in the impugned Notification
is a reasonable restriction under Article 19(6) of
Constitution of India.
2) Whether a supernumerary seat can be directed to
be created for the petitioner in the facts of the
present case.
At the outset, it may be noted that right to school education
for children of up to 14 years of age has been held to be
constitutional and fundamental right enforceable under the
Constitution. This aspect of the matter has been consistently held
by the Supreme Court, more particularly recognized in Mohini
Jain v. State of Karnataka1 which came to be approved in Unni
Krishnan, J.P. v. State of Andhra Pradesh2 and further
declared to be a fundamental right, followed by the enactment of
the Right of Children to Free and Compulsory Education Act,
2009. Apart from recognizing that the children of up to the age of
(1992) 3 SCC 666
(1993) 1 SCC 645
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14 years has a fundamental right to education, the Hon'ble
Supreme Court had also held in Mohini Jains' case the right to
education is relatable to Article 21. In the said case, it was
observed as under:
"'Right to life' is the compendious expression for all those
rights which the courts must enforce because they are basic to
the dignified enjoyment of life. It extends to the full range of
conduct which the individual is free to pursue. The right to
education flows directly from right to life. The right to life under
Article 21 and the dignity of an individual cannot be assured
unless it is accompanied by the right to education. The State
Government is under an obligation to make endeavour to provide
educational facilities at all levels to its citizens...."
In T.M.A. Pai Foundation v. State of Karnataka3, the
Supreme Court further recognized the right to establish an
educational institution and impart education as an activity which
can be traced to Article 19(1)(g) and is also entitled to protection
under Article 19(1)(g), thus recognizing the establishment of
educational institution as an occupation subject to reasonable
restrictions. In other words, as on today, even by incurring
expenditure, the right to get education and better qualification is
recognized as a constitutional right and it deserves protection
under Article 21.
In the case on hand, there is no dispute that the petitioner
was denied admission on the ground of her being over-qualified,
based on the Rule or Regulation framed by the University.
Imposing of such a rule/rider by way of a Regulation being
opposed to the right guaranteed under Article 21, the same is
AIR 2003 Supreme Court 355
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liable to be declared as void and unconstitutional. The
justification which the respondent University sought to canvass
before this Court that the subject course is meant for individuals
who have passed 10th standard only, and not for those who
possess intermediate qualification, is arbitrary and unreasonable
as the condition imposed has no nexus to the object sought to be
achieved. There is no basis for anyone to presume that merely
because a particular candidate had passed Intermediate, he/she
would not be suitable for acquiring a qualification/ skill in
Horticulture stream.
The judgment of the Supreme Court in Chief Manager,
Punjab National Bank v. Anit Kumar Das4, on which reliance
has been placed by the respondent's counsel relates to cases of
employment, and is therefore distinguishable on facts, as, in the
present case, acquiring of higher qualification is relatable to the
individual's right of better education which is directly relatable to
the rights guaranteed under Article 21.
Further, it may also be noted that the Supreme Court in
Institute of Chartered Financial Analysts of India v. Council
of the Institute of Chartered Accountants of India5, dealt with
a case where the Institute of Chartered Accountants of India had
issued a notification dated 03.08.1989 barring its Members from
pursuing Chartered Financial Analyst (CFA) certification. The
Supreme Court had observed that the desire to acquire more
qualification is an inherent human right, and the intention of a
Member of the Institute to acquire a qualification being an inherent
2020 SCC Online SC 897
(2007) 12 SCC 210
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and human right, the same cannot be a subject matter of
prohibition unless there exists a statutory interdict therefore, and
further observed that ICAI must confine its activities within the
four corners of the statute.
In Y. Srinivasa Rao v. J. Veeraiah6 while dealing with
denial of higher qualified person (a matriculation pass candidate
vis-à-vis matriculation failed candidate) for appointment as a fair
price shop dealer, the Hon' ble Supreme Court had observed that
the decision to prefer a less educated person without experience in
the business over a better educated person (the appellant therein
with a B.Com Degree) with experience of running a fair price shop
in the past, on the premise that a less educated person would stick
to the business while a better educated person may get a better job
and leave would only amount to allowing premium on ignorance,
incompetence and consequently inefficiency.
In the light of the above, so far as the condition stipulated by
the respondent University making a higher qualified person
ineligible to apply and study the Diploma Course is arbitrary and
unconstitutional and the same is required to be declared as void.
Coming to the aspect of whether a supernumerary seat can
be directed to be created for the petitioner, in the facts of the
present case, in the light of the judgment of the Hon' ble Supreme
Court in Dental Council of India v. Pravina7 whereunder it was
held that it is impermissible for the Courts to direct under Article
226 of the Constitution for creation of supernumerary seats, and
in the light of the factual data placed before the Court for the
AIR 1993 SC 929
(2005) 13 Supreme Court Cases 114
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Academic Year 2020-21 that the petitioner is not in the zone of
consideration in view of her rank, and keeping in view the limited
number of seats, no direction can be given to the university to
create a supernumerary seat, as creation of additional seats is
governed by the statutory provisions and it is not in the purview of
the Court.
Learned Senior Counsel for respondent University has cited
a very recent judgment of Hon'ble Supreme court in Anit Kumar
Das (4 supra), wherein the subject matter was disqualification on
account of over-qualification. The Hon'ble Apex Court has taken a
view that where a candidate who has higher academic qualification
was appointed as peon; and though the Hon' ble Apex Court held
that it is for the employer to determine the suitability of the
qualification of the candidates, dismissed the appointment of the
candidate as a Peon.
The case in Anit Kumar Das (4 supra) relates to dismissing
the appointment of over qualified candidate for the post of Peon,
whereas in the case on hand, the State's complete embargo on
education of a citizen where a person of higher qualification has
been barred from applying into a diploma course, such embargo is
out rightly denying the right of an individual to continue his/her
further studies and expand his/her knowledge for better career
prospects in life. Hence, Anit Kumar Das (4 supra) is
distinguishable on facts and therefore has no application to the
present case.
In the light of the above discussion, the clause 1-B in the
impugned notification restraining the intermediate qualified
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candidates from pursuing diploma in horticulture course being
inconsistent with Articles 14, 19(1)g and 21 of Constitution of
India, the same is liable to be struck down and is accordingly
struck down.
With respect to creation of supernumerary seat, as discussed
in the preceding paragraphs, in view of the submission made by
the learned Senior Counsel for respondent University that the
seats for the Diploma in Horticulture course have already been
filled, and there is no vacancy in the present Academic year, and
further keeping in view the judgment of the Hon' ble Supreme
Court in Dental Council of India (7 supra), no direction can be
given for creation of supernumerary seat for the petitioner.
Accordingly, the writ petitions are partly-allowed. No costs.
Miscellaneous petitions, if any pending, shall stand closed.
____________________________
CHALLA KODANDA RAM, J
26th February, 2021
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THE HON' BLE SRI JUSTICE CHALLA KODANDA RAM
WRIT PETITION No.27777 of 2017
And
WRIT PETITION No.22258 of 2020
26th February, 2021
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