Background
There has been a good deal of cacophony the last few weeks
on matters arising from the tenth schedule of the Telangana act. This issue
"enjoyed" two innings of media speculation & sound bytes. After
the first brouhaha about Intermediate (grade 12) examinations, the question has
resurfaced in the form of shrill rants on EAMCET (Engineering, Agriculture and
Medical Common Entrance Test).
The first move on the Intermediate examinations was made by
Andhra with minister Ganta Srinivasa
Rao unilaterally announcing
the tentative dates. Srinivasa Rao is reported to have said "The
file relating to this has been sent to the Telangana government. We are
awaiting a positive response from the Telangana government as it would
help the students of both AP and TS".
Telangana retaliated by publishing a separate schedule,
presumably for its own students. Changing its stand, Andhra appealed to
Telangana for a common schedule. Srinivasa
Rao is also reported to have raised the possibility of legal
action as well as seeking the Governor's intervention. He is quoted: "The
AP Re-organization Act stipulated that the two States must have common examinations for a certain period of time and a
common examination would be beneficial to the students since there is weightage for Intermediate marks in
EAMCET ranks. First year examinations were common and having separate
examinations for the second year would create confusion among students. Also examinations
in one State might be tough and easy
in the other State".
Telangana tried to take a bold step with minister Guntakandla
Jagadish Reddy revealing
the state planned to take over the Board of Intermediate Education (BIE). For
some undisclosed reasons, Jagadish Reddy did not take this step to the logical
conclusion and settled for a milder course of action of constituting
the Telangana state board of intermediate education (TSBIE).
The issue could not be resolved through discussions. Andhra
abandoned the threatened legal option and reconciled
itself to two boards conducting separate examinations as per their own
schedules. Srinivasa Rao reportedly
clarified they would not move the courts in order not to aggravate the problem.
The dust on the controversy settled down albeit on a temporary basis as the
EAMCET question was still very much open. Srinivasa Rao provided a preview to the "second innings"
by reportedly observing "EAMCET issue is being studied to see what
works out best for students".
Yesterday's tomorrow is today! The "promised
sequel" is now playing out with the Andhra Pradesh State Council of Higher
Education (APSCHE) announcing
the "tentative dates" of the 2015 EAMCET and other entrance
examinations in both states. This unilateral action was sought to be justified
on the ground that the act empowers APSCHE to conduct examinations for both states for a period of 10 years.
One Venugopal Reddy claiming to be the chairman of APSCHE reportedly proffered
the profound wisdom that any amendment
in the statute can only be done by the central government.
Telangana State Council for Higher Education (TSCHE)
chairman Prof. Papi Reddy responded in kind reportedly observing "Students
of Telangana will not participate in the examination". He is also believed
to have called APSCHE action "highhandedness". It may be noted TSCHE
was formed quite some time ago before the 2014 EAMCET imbroglio.
In an interview
to the Hindu, Prof. Papi Reddy went on to claim "students are being put to inconvenience and
confusion" due to Andhra's "stubborn attitude". The same story quotes unnamed Andhra officials
"only APSCHE has the authority as
TSCHE never existed on June 2, the appointed day of Telangana formation.
Moreover, common admissions have to continue for 10 years in both the
States".
The first phase of the drama was played out with blaring
media visibility accompanied by sound bytes. Andhra media went to town with the
coverage heavily slanted against Telangana government. We can confidently
predict more noise this time around too.
The media awarded the first round to Telangana as Srinivasa
Rao was said to have "blinked". No prizes for guessing who will win
the second round as they did the first: the TRP hungry anti-Telangana media J
Questions to be examined
Let us study the relevant legal aspects and answer following
questions:
·
Does Telangana have the right to setup TSBIE
& TSCHE?
·
Who can (or should) conduct Intermediate as well
as EAMCET?
·
Does the 2014 Telangana Act require common
examinations in any of these cases?
·
What, if any, is the impact of the "intermediate
marks weightage"?
·
Does the 2014 Telangana Act empower APSCHE to
conduct common admission tests for ten years?
·
Is this power derived from the "fact"
that TSCHE did not exist on June 2, 2014, the appointed day?
Relevant extracts from the 2014 Telangana
Act
The relevant sections of the Act are stated in sections 75,
95, 97 and 101 as well as the tenth schedule.
The full text of section 75 (1) is reproduced below
(emphasis mine):
"The Government of the State of Andhra Pradesh or the
State of Telangana, as the case may be,
shall, in respect of the institutions specified in the Tenth Schedule to this Act,
located in that State, continue to
provide facilities to the people of the other State which shall not, in any respect, be less favorable to such people than
what were being provided to them before the appointed day, for such period and upon such terms and
conditions as may be agreed upon between the two State Governments within a period of one year from the
appointed day or, if no agreement is reached within the said period, as may be
fixed by order of the Central Government".
Section 75 (2) empowers the central government to add other
institutions to the tenth schedule through gazette notification.
The full text of section 95 is reproduced below (emphasis
mine):
"In order to ensure equal opportunities for quality higher
education to all students in the successor States, the existing admission
quotas in all government or private, aided or unaided, institutions of higher,
technical and medical education in so far as it is provided under article 371D of the Constitution, shall continue as such for a period of ten years
during which the existing common
admission process shall continue".
As already explained
earlier, section 97 has minimal impact with no material changes.
Section 101 empowers the adoption/repeal/modification of any
appropriate prior law by the appropriate government. This may be based on
necessity or even expedience subject to a two year deadline.
The tenth schedule lists 107 public institutions that are
related either exclusively or partially to the fields of education or training.
Ten of these are situated in Andhra while the other 97 are located in
Telangana. Not very surprisingly, Hyderabad and Ranga Reddy districts with 88
and 6 institutions respectively form the major chunk.
TSBIE & TSCHE formation
It may be noted section 101 is quite a common feature of
state formation in India. For instance the section tallies mutatis mutandis
with section 79 of the Chhattisgarh act.
Is section 101 an executive carte blanche? Clearly not so:
the litmus test has to be "executive competence".
TSBIE was formed by adopting the Andhra Pradesh Intermediate
Act, 1981. Similarly TSCHE was formed by adopting the Andhra Pradesh State
Council of Higher Education Act, 1988.
The two Government Orders (GO) cite section 101 of the 2014
act. The orders are mere adaptations incorporating purposeful relevant changes
(e.g. replacing "Andhra Pradesh" by "Telangana" at the
appropriate places). I could not find any aspect that encroaches on the domain
of the legislative or judicial branches. We can safely conclude the orders are
valid as empowered by section 101.
Can section 101 be used to form institutions parallel to
those listed in the tenth schedule? This must be answered in the positive as
section 75 does not forbid such an action.
Section 75 tallies mutatis mutandis with section 66 of the Chhattisgarh
act. The corresponding eighth schedule lists 40 institutions. A quick reading
of the Chhattisgarh act reconfirms the conclusion that Telangana enjoys the
full rights to adopt prior laws to setup TSBIE & TSCHE.
Intermediate examinations authority
A plain reading of section 75 (1) together with the tenth
schedule establishes the following:
·
These institutions are in some way or the other
related to the fields of education/training
·
Each of these is located only in one of the successor states (Telangana or Andhra)
·
Each institution is assigned to the state in which
an institution is located
·
The government of the state in which an
institution is located must provide facilities to the people of the "other
state"
·
These facilities must at a minimum be as good as the ones provided before the
appointed day
·
The duration as well as the applicable terms
& conditions shall be as agreed upon within an year from the appointed day
or, if no agreement is reached within this period, as prescribed by the center
The intent is clearly to protect the interests of students.
The section strives to prevent a sudden
vacuum/burden on an individual's education/career plans. In other words, a
student should not undergo suffering merely because the successor state in
which he lives does not have an institution providing the education/training he
requires.
The section is silent on the situation between the appointed
day and the date on which the terms are mutually agreed/prescribed by the
center. Considering the intent behind the law, it may be appropriate to deduce
a right to continued access at terms and conditions as favorable or better than
earlier during the transition.
However the situation is not intended to be permanent. The
duration of such preferential treatment should be negotiated within an year or
arbitrated. In other words, this is a transitional feature.
The reference to "terms and conditions" is
interesting. It is clear that the negotiated terms need not be equal to those
offered by the state to its own students.
Let us understand the section by taking up the example of State
Institute for Fisheries Technologies (SIFT), Kakinada (# 47 in the tenth
schedule):
·
SIFT is assigned to Andhra by virtue of its
location at Kakinada
·
For a mutually agreed/decided period, SIFT must continue
to entertain students from Telangana
·
SIFT's jurisdiction for this duration includes
Telangana
·
During this period, Andhra does not have the
right to refuse an otherwise qualified Telangana student
A quick reading of the tenth schedule shows "Board of
Intermediate Education, Hyderabad" at # 19. The inference is loud and
clear: the institution is assigned to
Telangana by virtue of its location while Andhra is the "other
state". Telangana government is empowered to conduct the examination (and
perform other functions) for a duration to be agreed/decided covering both the states but is obliged
to not deprive Andhra students of facilities enjoyed before the appointed day.
Several individuals, almost totally from Andhra, assert the
position that Andhra is the continuation of the erstwhile state while Telangana
is a new state. They go on to claim that all institutions (or even rights) not
explicitly assigned to Telangana continue to vest with Andhra.
This position is patently untenable. Firstly both Telangana
& Andhra are defined to be "successor states" of the erstwhile
state by section 2 (j) of the act. Further the phrase "located in that
State" in 75 (1) makes it amply clear that institutions located in
Telangana are assigned to the state by the virtue of the location.
Any doubts still remaining are dispelled by the judgment in
AK Shrivastava v. Union Of India & Ors, 2002. The honorable court held:
"Both the States have been carved out of the existing State of Madhya
Pradesh and both the Slates stand on
same footing. There is no reason to believe that only one State, i.e., the
State of Chhattisgarh shall be favored by the Parliament by giving option to
abolish the Tribunal. This would have
been a discriminatory attitude of the legislature. Whatever is given to one
State shall not be given to other State, is therefore, totally inconceivable".
The honorable court explicitly rejected the "original
and continuing state argument" by stating "Shri N.C. Jain, learned
Senior Advocate appearing for the petitioners has contended that in view of the
provisions of Clauses (a), (b) and (c) of Article 3 of the Constitution, the
State of Chhattisgarh only is a new State and not a State of Madhya Pradesh. He
has further contended that the State of Madhya Pradesh continues to be the old
State of Madhya Pradesh. As pointed out earlier in view of the definition of
the successor States given in Section 2(j) of the Act of 2000, the contention
of Shri N.C. Jain, learned Senior Advocate for the petitioners, cannot be accepted".
This argument therefore deserves to be rejected outright irrespective
of whether the source is ignorance, arrogance or mischief.
The conclusion is
unmistakable: Andhra's attempt to usurp APSCHE is a brazen illegal action that
violates both the letter and spirit of the 2014 act.
Andhra had no business to initiate the process. Instead of
sending the file to Telangana, Ganta Srinivasa Rao would have better advised
had he written to Jagadish Reddy requesting for the process be
initiated.
Srinivasa Rao's claim that the 2014 Telangana act requires
common Intermediate examinations reflects ignorance at best. Perhaps the
honorable minister should have spent time reading the act instead of utilizing
all his energies in hopping parties and spewing venom on Telangana.
Srinivasa Rao's reference to Intermediate marks weightage
ignores two essential points. Firstly the weightage need not be permanent. More
over, the weightage applies to all qualifying examinations including but not
restricted to Intermediate. Have you heard of CBSE, Mr. Minister?
Common entrance examinations authority
Referring to the tenth schedule, we find "Andhra
Pradesh State Council of Higher Education, Hyderabad" at # 27. This places
it at equal footing with BIE i.e. assigned to Telangana.
The only additional factors arise from the 371-D related aspects
of section 95. It may be a good time to remind readers demolished
the earlier claim that Telangana formation is illegal as long as article 371-D
is on the statute books. I have also provided
a complete link between the so called six point formula, the thirty second
amendment and article 371-D.
Reading sections 75 (1) and 95 together, the following
becomes clear:
·
APSCHE is assigned to Telangana by virtue of its location at Hyderabad
·
For a mutually agreed/decided period or ten years, whichever is earlier, it
must continue to entertain students from Andhra
·
APSCHE jurisdiction for this duration includes
Andhra
·
During this period, Telangana does not have the
right to refuse an otherwise qualified Andhra student
·
The existing common admission process shall continue for ten years
The additional aspects are summarized below:
·
The duration of common jurisdiction is ten years
at a minimum
·
The requirement "not less favorable than
what were being provided to them before the appointed day" is clearly
established i.e. access to the merit (open) list after the exhaustion of locals
quota
·
Common admission process
It is clear from the above Andhra's attempt to wrest control
of APSCHE is as illegal as that of BIE.
APSCHE assertion of being the assigned agency for both
states for 10 years is correct in a strict literal sense. What it omits to take
into account is the fact that APSCHE was assigned to Telangana (which would
have been well within its right to rename it as TSCHE).
Venugopal Reddy's comment that "any amendment in the
statute can only be done by the central government" effectively boomerangs
on him. He also needs to note the fact that by accepting a position offered by
the usurper, he has turned himself into an accessory to the illegal act.
Section 97 & the "common admission
process"
Does "common admission" require joint examinations?
The word "admission" usually means "the act of admitting or
allowing to enter". On the other hand, "examination" is taken to
mean "written exercises, oral questions, or practical tasks, set to test a
candidate's knowledge and skill". While the results of an examination may
be one (or even the only) of the qualifications required for the admission
process but the two actions are clearly separate.
APSCHE performs 24 functions, only one of which is related
to the current discussion: "to conduct entrance examination for admission
to institutions of Higher Education and render advice on admissions". The
two processes of examination & admissions (more correctly rendering advice
on admissions) are distinctly shown as separate.
EAMCET 2014 ranks were computed by assigning 75% weight to
the admission test marks and 25% weight to the qualifying examination score. It
is no one's contention that APSCHE had any control or even stake in the
examinations conducted by BIE/CBSE.
The debate on this question can be closed if we observe the
relevant section does not refer to
"common examination and admission processes" but merely to "common
admission process".
Impact of TSBIE & TSCHE formation
As demonstrated above, Telangana's action to form TSBIE
& TSCHE under its section 101 rights is perfectly legal. Let us now examine
the impact of these actions.
Telangana chose to form these bodies instead of asserting
its section 75 rights over the existing bodies. This action divests them from
the section 75 obligations to the "other state"
BIE & APSCHE continue to exist but are shorn of
jurisdiction over Telangana in the light of these actions. Telangana (or the
center for that matter) has no right to transfer these bodies to Andhra. These
actions therefore do not legitimize
Andhra's usurping bodies that have been assigned to Telangana.
The outcome of this saga is:
·
TSBIE & TSCHE covering the jurisdiction of
Telangana work under exclusive Telangana control
·
These bodies administer the tests for Telangana
·
BIE & APSCHE continue to be assigned to
Telangana but with jurisdiction over Andhra
·
These bodies administer the tests for Andhra under
exclusive Telangana control
A sorry state of affairs caused solely by Andhra's misguided
brinkmanship & totally avoidable misadventure. Unfortunately for Andhra
students, they have landed in a potential legal vacuum through their inept
leadership which let them down in a foolish bid to win a turf war.
