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Andhra High Court · body

2001 DIGILAW 1365 (AP)

Osmania University, Hyd. v. Government Of A. P.

2001-10-31

S.B.SINHA, V.V.S.RAO

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S. B. SINHA, J. ( 1 ) WHETHER the A. P. Minorities Commission constituted under the a. P. State Minorities Commission Act, 1998 ( the Act for brevity) has any adjudicatory role to play in the affairs of Osmania university, is the question involved in these writ appeals. ( 2 ) THE writ appeals are directed against the interlocutory orders passed by a learned single Judge of this Court. The writ petition is also heard with the consent of the learned Counsel for the parties. ( 3 ) THE 2nd respondent-Minorities commission issued a letter dated 23-3-2000 directing the Registrar of the Osmania university, appellant herein to appear before the Commission with the relevant records pertaining to the selection notifications issued by the University. Contending that the Minorities Commission has no jurisdiction or control over the affairs of the University appellant, the writ petition was filed. An interim order was passed by this Court on 11-4-2000 staying all further proceedings in the matter which was later on vacated by another learned Judge of this Court by an order dated 6-2-2001. Aggrieved by the said order, the appeals are filed by the appellant-Osmania university. ( 4 ) THE objects and reasons for setting up of the A. P. Minorities Commission are to infuse confidence among the minorities about the working and effectiveness of the Commission. The Commission has been given statutory status. The main task of the Commission shall be to evaluate the progress of the development of minorities, monitor the working of the safeguards provided in the Constitution for the protection of the interests of minorities and any laws enacted by the central Government or State Governments, besides looking into the specific complaints regarding deprivation of rights and safeguards of the minorities. The commission may also suggest appropriate measures in respect of any minority to be undertaken by the Central Government or state Governments. ( 5 ) SECTION 3 of the A. P. State minorities Commission Act, 1998 empowers the Government to constitute a body to be known as Andhra Pradesh State Minorities commission. In terms of Section 11 of the act the Commission shall have the powers of the civil Court in respect of taking of evidence and related matters. ( 5 ) SECTION 3 of the A. P. State minorities Commission Act, 1998 empowers the Government to constitute a body to be known as Andhra Pradesh State Minorities commission. In terms of Section 11 of the act the Commission shall have the powers of the civil Court in respect of taking of evidence and related matters. Section 12 of the Act provides for the functions which the Commission shall perform which reads thus: (A) to evaluate the working of various safeguards provided in the Constitution for the protection of minorities and in laws passed by the Union and State governments. (b ). . . . . . . . . . . . . (c ). . . . . (d) to look into specific complaints regarding deprivation of rights and safeguards in the interest of the minorities. (e) to exercise such other powers and perform such other functions as may be conferred or enjoined upon it by this Act or the rules made thereunder. . . . . ( 6 ) MR. Runmkanth Reddy, learned standing Counsel for the University would submit that the provisions of the said Act cannot be made applicable in relation to the affairs of the University. The learned counsel would contend that in terms of the provisions of University Act, it is an autonomous body. Reliance has been placed on Rajasthan Agricultural University v. Ramakrishna Vyas, (1999) 4 SCC 720 . ( 7 ) THE learned Government Pleader appearing on behalf of the State submits that the Minorities Commission having regard to the scheme of the Act cannot usurp the adjudicatory role. ( 8 ) THE learned Counsel appearing for the Commission-Mr. Vilas Afzulpurkar on the other hand would submit that the jurisdiction of the Commission extends to the entire State. The learned Counsel would contend that in pluralistic society, even an individual whose right has been violated having regard to the constitutional mandates, is entitled to make a complaint. It was submitted that all procedures laid down under the Act have been followed and thus, in any event, the Registrar of the University having submitted himself to the jurisdiction of the Commission cannot now be permitted to turn down and contend that the commission had no jurisdiction. In any event, the learned Counsel would contend that it is not a fit case where a writ of prohibition may issue. In any event, the learned Counsel would contend that it is not a fit case where a writ of prohibition may issue. ( 9 ) THE basic fact of the matter is not in dispute. Out of two posts of Lecturers, which were notified in the year 1996, for filling the vacancies in the Department of linguistics, Osmania University, one was reserved for BC-D. ( 10 ) AS no suitable candidate was found in BC-D category for appointment, respondent No. 3, who belongs to minority community, was selected for the post earmarked to BC-D. Though a candidate amongst the Backward Classes viz. , respondent No. 4, who belongs to BC-B category, was available, his case was not considered. The learned Counsel appearing for the Osmania University tried to justify the action of the authorities of the university by stating that in view of the orders of the Government in G. O. Rt. No. 420 dated 18-11-1995 roster need not be followed. However, the Selection Committee in its meeting held on 22-8-1997 made the following endorsement: ( 11 ) OF the candidates interviewed, the Committee recommend for appointment to the post (s) in question the following person (s), the order of their preference being:- 1. M/s. K Sailaja - OC (W) 2. Sri Mohd. Amari - BC (B) in place of bc (D) as there was no candidate from bc (D) and BC (A ). ( 12 ) THE learned Counsel for the university however admits that Mr. Mohd. Amari has not applied as a minority candidate. ( 13 ) IN order to fill up certain posts in the Department of Linguistics, the Registrar, osmania University has issued notifications vide Advertisement Nos. 2/96 and 3/96 respectively dated 27-7-1998 and 13-11 -1998 and on the basis of the interviews held recommendations before the Executive council for its approval and the Executive council at its meeting held on 27-9-1997 resolved not to approve the selection of fresh candidates in the Departments of english and Linguistics as the work load did not warrant any appointments and accordingly orders to the selected candidates were not issued. ( 14 ) AGGRIEVED by the said decision of the Executive Council, one Dr. A Usha Devi, a candidate for the post of Professor and dr. Mohd Amari, a candidate for the post of Lecturer in the Department of Linguistics have approached this Court by filing WP nos. ( 14 ) AGGRIEVED by the said decision of the Executive Council, one Dr. A Usha Devi, a candidate for the post of Professor and dr. Mohd Amari, a candidate for the post of Lecturer in the Department of Linguistics have approached this Court by filing WP nos. 9107 and 5241 of 1998 respectively seeking a direction to the respondents to issue appointment order for the above posts in the Department of Linguistics, osmania University in pursuance of the aforementioned notifications. This court, having regard to the facts and circumstances of the case, directed the authorities concerned to take a decision in the matter and communicate the same to the University. ( 15 ) THE matter was referred to the state Government in terms of the provisions of Section 19 (5) (ii) of the A. P. Universities act, 1991, and the Government rejected the said proposal by holding that there is no work load even if there are budgeted posts. ( 16 ) DR. Mohd. Amari, petitioner in WP no. 5241 of 1998, gave a representation to the Government for re-consideration of the issue and for issuance of the appointment orders as Lecturer in the Department of linguistics, Osmania University. ( 17 ) THE State Government in the aforementioned factual background issued a government Order vide G. O. Rt. No. 1 140, higher Education (UE. I. 2) Department, dated 5-1-1999 permitting the Osmania University for making appointments in the Department of Linguistics. The operative portion of the said Government Order reads thus: the Government after careful examination of the whole issue, in the light of the orders of A. P. High Court in WP Nos. 9107/98 and 5241/98. referred to at Para-5 above hereby permit the Osmania University for making appointments in the Departments of linguistics in pursuance of their Notification no. 3/96 in respect of the candidates who were selected in the interviews. ( 18 ) DESPITE the fact that the government has permitted the University for making appointments, as noticed supra, the University has not issued any orders appointing the selected candidates in the department of Linguistics and aggrieved by the inaction on the part of the Osmania university, Dr. Mohd. ( 18 ) DESPITE the fact that the government has permitted the University for making appointments, as noticed supra, the University has not issued any orders appointing the selected candidates in the department of Linguistics and aggrieved by the inaction on the part of the Osmania university, Dr. Mohd. Ansari gave a representation dated 17-11-1999 to the a. P. State Minorities Commission, alleging that in similar cases where Government have issued orders, Osmania University has shown expeditious action in issuing of appointment orders to the candidates, but the same treatment is not meted-out to him and this discrimination against him is only because he belongs to minority community. ( 19 ) IT is not in dispute that a notice had been issued by the respondent-Commission to the Registrar of the Osmania University and an explanation to the said notice had also been given. However, there is nothing to show that the Minority commission might even had a prima facie finding that a case for further enquiry has been made out. The respondent- commission, however, by a letter dated 23-3-2000 purported to be in exercise of its power under Section 12 (4) of the 1998 Act directed the Registrar of the Osmania university to appear personally before the commission for examination on oath on 4-4-2000 at 11:30 A. M. together with all relevant records of the Selection Committee s recommendations and consideration and approval by the Executive Council of the University and with specific dates of sittings of the Executive Council Meetings for all the posts in various disciplines as per the notification Nos. 2 and 3 of 1996 dated 25-3-1996 and all relevant records in connection with appointment of Lecturers in the Department of Linguistics and Urdu respectively to show that there is no discrimination against Md. Ansari and Md. Nazeer Ahmed respectively. In the said letter it was stated that whether the decision making statutory authorities have functioned impassionately, for the selection of candidates in the Departments of Linguistics and Urdu who are members of Muslim minority Community as it has been inordinately and designedly delayed for 4 long years in finalisation of the appointment even after issuance of the government Order vide G. O. Rt. No. 1140 dated 5-11-1999. No. 1140 dated 5-11-1999. In the said letter, the registrar was asked to explain further the procedure and attitude adopted by the executive Council Members in its meetings on various dates for the approval of the candidates Mr. Md. Ansari and Mr. Md. Nuzecr Ahmed, whether no un-due haste has been shown by the Osmania University in issuing appointment orders after issue of g. Os. , by the Government in respect of candidates in the Departments of Telugu and Public Administration, but failed to do so in respect of Mr. Md. Ansari, the candidate for the Lecturer post in the Department of linguistics, thus, the statutory provisions of the A. P. Universities Act, 1991 has not been complied with. ( 20 ) IN the said notice dated 23-3-2000, it was stated by the learned Counsel, the commission had already made up its mind which has arrived at a finding and it proceeded to enquire into the matter with prc-conccded notion. Although for the purpose of this case, it may not be necessary for this Court to delve into the matter as regards the jurisdiction of the Commission, ex-facie, it appears that the Commission s jurisdiction is only in relation to the provision of the said Act. We, therefore, are of the opinion that the Commission s jurisdiction and duties of the Commission are limited. The Commission has been constituted for protecting the minority rights as group right and not as an individual right. ( 21 ) IN terms of Article 338 of the constitution of India, an individual cannot make any complaint against an action taken by a State which can be subject-matter of the adjudication before a Court of law. The commission having regard to the scheme and object of the Act cannot usurp an adjudicatory power. The power of the commission being recommendatory in nature, it can deal with only group rights only wherein the right of a group has been affected. ( 22 ) FURTHER more, the Commission can requisition such a document or assistance as may be required from any department of the Government for implementation of the provisions of the Act. Such a power has not been given in relation to any other authority. ( 23 ) IN Section 11 of the Act purposely, the Legislature has used the word government as contra-distinguished from the State. Such a power has not been given in relation to any other authority. ( 23 ) IN Section 11 of the Act purposely, the Legislature has used the word government as contra-distinguished from the State. The appellant University may be a state within the meaning of Article 12 of the Constitution, but it is not a Government. ( 24 ) THE unofficial respondent herein applied for the post of Lecturer. If he had no right to be appointed as such in the facts of the matter, he could not have got even a relief from a Court of law. ( 25 ) THE complaint made by the unofficial respondent was indeed a matter, which could have been adjudicated upon. The inaction on the part of the state can be subject matter of a judicial review. In a given situation, the Court may or may not grant a relief, but it will be too much to presume that such relief can be granted on a complaint by the commission. If complaint of this nature cannot be entertained by the Court of law it will be too much to contend that such relief can be obtained indirectly at the hands of the Commission. The Commission has been constituted for protection of rights of the minority under the Constitution. Such a right must be a positive concept. In a positive concept, the Commission may also take up the matter so as to protect the interest of the minority community. Inaction by the State against an individual in our opinion cannot be subject matter of subequatorial wrath of the commission. ( 26 ) THE University is an autonomous body as has been held in Ramakrishna vyas (supra ). It is not a limb of the government. It is not even bound by such directions as may be mandated by a statute. Such direction to furnish information could be issued by the State against the university. The financial management to some extent is also conferred upon the state in terms of Sections 47 and 49 of the a. P. Universities Act, 1991. ( 27 ) IN view of our findings aforementioned, we are of the opinion that as the Commission lacked inherent jurisdiction and its action against the university is ultra vires. The writ petition, as also the appeals, are allowed. No costs.