IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE ELEVENTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 17294 of 2008 Between: 1 Dr. E. Satyanarayana S/o. E. Venkatachalam Govt. Junior College, Parkal, Warangal District. 2 V. Chenchuramaiah S/o. Subramanyama Govt. Junior College, Chejerla, Nellore District. 3 K. Srinivas S/o. K. Pullaiah Govt. Junior College, Nalgonda District. 4 D. Pothuraju S/o. D. Ranga Vara Prasad Govt. Junior College, Durgi, Guntur District. 5 M. Srinivasulu S/o. Venkaiah Govt. Junior College, Tangutur, Prakasam District. 6 T. Ravikumar S/o. Mangaiah Govt. Junior College, Mothukur, Nalgonda District. 7 A. Ravi Prasad S/o. Narasaiah Govt. Junior College, Mandamarri, Adilabad District. 8 K. Ramprasad S/o. Raghunanda Reddy Govt. Junior College, Gudur, Nellore District. 9 S. Dhanunjaya Rao S/o. Sitharamaiah Govt. Junior College, Amudalavalasa, Srikakulam District. 10 S. Saikumar S/o. S.V. Rama Murthy Govt. Junior College, Parkal, Amudalavalasa, Srikakulam District. 11 K. Sarada D/o. K. Siddiraju Govt. Junior College, Malakpet, Hyderabad. 12 G. Swarnalatha D/o. G. Venkatarathnam Govt. Junior College, Yeddanpudi, Prakasam District. 13 K. Aparna Sitharam D/o. K.K,S. Sharma Govt. Junior College, Bapatla, Guntur District. 14 D. Ratna Prabha D/o. Maisa Reddy Govt. Junior College, Sadashivpet, Medak District. 15 Dr. S. Ramesh Babu S/o. Buchirajam Govt. Junior College, Ramayampet, Medak District. 16 G. Sudhakar S/o. Balaiah Govt. Junior College, Mahaboobnagar, Warangal District. 17 M. Vijaya Sekhar S/o. M. Narahari Govt. Junior College, Mulugu, Medak District. 18 J. Ashok Reddy S/o. Venkat Reddy Govt. Junior College, Warangal, Warangal District 19 Y. Kalyan Kumar S/o. Y. Naganna Govt. Junior College, Kurnool, Kurnool District. 20 Dr. D. Karunakar S/o. Ramesh Babu Govt. Junior College, Sadasivpet, Medak District. 21 P. Adaviraju S/o. Veerabhadraiah Govt. Junior College, Kowdipally, Medak District. 22 Y.V.C.Annapurna D?o. Seshagiri Govt. Junior College, Kothavalasa, Vijayanagaram District. 23 A. Krishnaiah S/o. Sriramulu Govt. Junior College, Balanagar, Mahaboobnagar District. 24 M.V. SeshaiahS/o.M. V. Narayana Govt. Junior College, Puthalapattu, Chittoor District. 25 S. Gopal S/o. S. Subbaiah Govt. Junior College, Kodumuru, Kurnool District. 26 Dr. V. Ravinder Reddy S/o. Narayan Reddy Govt. Junior College, Shankarampet, Medak District. ..... PETITIONERS AND 1 The State of Andhra Pradesh Rep. by its Prl. Secretary , Department of Higher Education Secretariat, Saifabad, Hyderabad. 2 The Commissioner & Director of Collegiate Education Nampally, Hyderabad. 3 The Commissioner & Director of Intermediate Education, Nampally, Hyderabad. 4 Sri M. Narsi Reddy S/o. Sathi Reddy Government Junior College for Boys, Nalgonda, Nalgonda District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction more particularly one in the nature of writ of Mandamus declaring action of the 1st Respondent in issuing G.O.Ms.No. 123, Higher Education (CE.I) Department dt. 21-7-2008 amending the A.P. Collegiate Education Service Rules issued in G.O.Ms. No. 47 dt. 14-5-207 with retrospective effect as illegal, arbitrary unjust discriminatory and in violation of the fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution of India apart from being contrary to the regulations issued by the University Grants Commission and also amounts to colourable legislation and amounts to interfering with the admission of justice and due process of law and further declare that the order of the Hon'ble A.P. Administrative Tribunal Passed in O.A.No. 6371 of 2008 dt. 6-8-2008 which does not properly protect the legitimate claims of the petitioners herein as illegal, and unjust and consequentially set aside G.O.Ms. No. 123, Higher Education (CE.I) Department dt. 21-7-2008. Counsel for the Petitioners: MR.K.R.PRABHAKAR Counsel for the Respondents: GP FOR SERVICES II The Court made the following : ORDER: This writ petition is filed seeking a Mandamus declaring the action of the first respondent in issuing G.O.Ms.No.123, Higher Education (CE.I) Department, dated 21.07.2008 amending the Andhra Pradesh Collegiate Education Service Rules issued in G.O.Ms.No.47, dated 14.05.2007 with retrospective effect, and the order, dated 06.08.2008, passed in O.A.No.6371 of 2008 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad, as illegal and arbitrary, and consequently, to set aside the said orders. The petitioners are working as Junior Lecturers/Librarians/Physical Directors in various Government Junior Colleges. They have acquired necessary qualifications including pass in National Eligibility Test (NET)/State Level Eligibility Test (SLET) to be promoted as Lecturers in Degree Colleges. The Government in exercise of its powers under Article 309 of the Constitution of India framed special rules for Andhra Pradesh Collegiate Education Services in supersession of the special and adhoc rules issued in various G.Os from time to time, by issuing G.O.Ms.No.47 dated 14.05.2007. The second respondent addressed a letter to the third respondent directing to forward the seniority list without insisting the qualifications issued in G.O.Ms.No.47. After notifying the same, the petitioners gave a representation, dated 26.07.2007, to the second respondent requesting to implement G.O.M.No.47 while considering their cases for promotion to the post of Lecturer in degree colleges. Thereafter, Commissioner of Collegiate Education, vide his proceedings, dated 30.07.2007, directed the third respondent to submit particulars of eligible candidates as per G.O.Ms.No.47. Based upon the said proceedings, the third respondent issued the consequential memo, dated 08.08.2007, directing all the Regional Joint Directors of Intermediate Education in the State to furnish the seniority lists prepared in tune with the Rules issued in G.O.Ms.No.47. While so, some of the petitioners have filed O.As before the Andhra Pradesh Administrative Tribunal seeking a direction to the respondents therein to consider their cases for promotion to the post of Lecturer in Degree colleges by following the procedure contemplated in the rules issued in G.O.Ms.No.47. While admitting the O.As, the Tribunal granted an interim direction to the respondents to consider the case of the applicants therein for promotion to the post of Lecturer in Degree colleges. Despite the said interim orders, the authorities did not choose to implement the said orders and then, the applicants were constrained to file contempt applications. Pending consideration of the C.As, the authorities have implemented the rules issued in G.O.Ms.No.47, and promoted 14 junior Lecturers as Lecturers of degree colleges. Thereafter, the Contempt Applications were closed. Then, O.A.No.3761 of 2008 was filed by one of the petitioners seeking promotion to the post of Lecturer in Degree College as per the Rules issued in G.O.Ms.No.47. The Tribunal while admitting the said O.A. passed an interim order dated 15.05.2008 modifying the earlier order dated 29.04.2008 stating that Rule 15(a) of the State and Subordinate Service Rules will not relax the requisite qualifications with a direction to consider the cases of eligible candidates for promotion as per the rules issued in G.O.Ms.No.47 and also directed that all the connected O.As should be posted under the caption ‘For being mentioned’. As on date, all the above said O.As are pending adjudication before the Tribunal and the interim orders are in force. It is the case of the petitioners that the respondents have issued G.O.Ms.No.123 dated 21.07.2008 incorporating a non-obstante clause to the note in the Annexure of the rules issued in G.O.Ms.No.47, wherein it was specified that “notwithstanding anything contained in note 4 for recruitment by transfer to the post of Lecturer in Government Degree college, candidates possessing at least 55% marks to the Post Graduation Level in the relevant subject shall be considered with the condition that they will be given five years time to acquire the higher qualification, NET/SLET/Ph.D and they will be given University Grants Commission qualifications from the date they acquire the higher qualifications and those orders shall come into force with effect from 14.05.2007. Aggrieved by the same, the petitioners filed O.A.No.6371 of 2007. While admitting the said O.A., the Tribunal ordered that ‘any promotions or consequential service conditions shall be subject to the final result of the O.A.’. Aggrieved by the same, the present writ petition is filed. Sri S. Ramachander Rao, learned senior counsel appearing for the petitioners, contended that the amendment made in G.O.Ms.No.123, dated 21.07.2008 is contrary to the regulations framed by the University Grants Commission under Section 26 of the University Grants Commission Act, 1956, which is a Central Ac t. Learned senior counsel also has taken the plea with regard to the legislative competency since the field is occupied by the Central Legislation i.e., the University Grants Commission Act. Learned counsel has drawn attention of this Court the judgment of the Supreme Court in Prof. Yashpal v. State of Chhattisgarh, wherein it was held that the University Grants Commission Act, a law made by Parliament with reference to Entry 66 List I, having empowered UGC to make regulations, any provision of an enactment made by the State Legislature concerning higher education which is in conflict with the regulations, would be ultra vires. He further relied upon the judgment reported in Osmania University Teachers Association (OUTA), General Secretary vs. Union of India, wherein it was held as hereunder: “60. The said judgment, in all its force, would apply to the case on hand. The regulations framed by the U.G.C. are complete and exhaustive covering the entire field relating to the qualifications, eligibility criteria and procedure to be adopted by the university and the manner in which the selection committees are to be constituted for selection of teachers. No further scope is left for the operation of the State Legislation in the said field, which is fully covered by the regulations framed by the U.G.C. pursuant to the power conferred upon it under Section 26 read with Section 14 of the U.G.C. Act. 61. Applying the test laid down by the Supreme Court in Osmania University teachers Association (9 supra), we have no doubt in our minds to hold that the State legislature could not have passed a parallel enactment under Entry 25 of List III unless it encroaches Entry 66 of List I. The State legislature in no manner could have altered the composition of the Selection Committee as it had done by inserting Section 43-A of the Universities Act in the matter of selection of teachers under CAS. The regulations specifically provide that the selection Committee shall be the same for the selections under direct recruitment as well as under Career Advancement Scheme. By introducing Section 43-A into the Andhra Pradesh Universities Act, 1991, the legislature has introduced two types of selection Committees – one for the selection of teachers by direct recruitment and the other for selection of teachers under the career Advancement Scheme. 62 to 83……. 84. In Preeti Srivastava (14 supra) the Supreme Court held that “under the Indian Medical Council Act of 1956 the Indian Medical Council is empowered to prescribe, inter alia, standards of post-graduate medical education. In the exercise of its powers under Section 20 read with Section 33 the Indian Medical Council has framed regulations, which govern post-graduate medical education. These regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List III make rules and regulations, which are in conflict with or adversely impinge upon the regulations framed by the Medical council of India on post-graduate medical education. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List I, the exercise of the power is exclusively within the domain of the Union Government. The power of the states under Entry 25 of List III is subject to entry 66 List I….It is not the exclusive power of the State to frame rules and regulations pertaining to education since the subject is in the Concurrent List. Therefore, any power exercised by the State in the area of education under Entry 25 of List III will also be subject to Entry 66 of List I……..It is not the exclusive power of the State to frame rules and regulations pertaining to education since the subject is in the concurrent List. Therefore, any power exercised by the State in the area of education under Entry 25 of List III will also be subject to any existing relevant provisions made in that connection by the union Government subject, of course, to article 254.” 85. This verdict of the Supreme Court should put an end to the controversy. The judgment is a complete answer to the contentions urged by the learned Counsel appearing on behalf of the Government and the University. 86. In view of the decision of the Supreme Court in Dr. Preeti Srivastava (14 supra) the decision of this Court in R. Madhavi (13 supra) holding that the regulations are not mandatory is no more good law. 87. The U.G.C. under the U.G.C. Act is empowered to take all such steps as it may think fit for promotion and coordination of university education and for the determination of maintenance of standards of teaching, examination and research in universities. The U.G.C. in exercise of the powers conferred by clauses (e) and (g) of Section 26 read with Section 14 of the University Grants Commission Act, 1956 has framed regulations regarding the minimum qualifications for the appointment and Career Advancement of teachers in Universities and institutions affiliated to it. The regulations, inter alia, provide for minimum qualifications for the post of Professors, Readers and Lecturers in universities or colleges for appointment of persons through open advertisement and for their Career Advancement. These regulations are binding on the Universities. Even the State Legislature cannot, in exercise of the power under Entry 25 of List III, make any provision, which are in conflict with or adversely impinge upon the regulations framed by the U.G.C. regarding the minimum qualifications and procedure prescribed for appointment and Career advancement of teachers in Universities and colleges. The standards laid down in the regulations by the U.G.C. are in exercise of power conferred under Entry 66 of List I. The exercise of that power is exclusively within the domain of the Union Parliament. The power of the State under Entry 25 of List III is subject to Entry 66 of List I.” The learned Government Pleader for Services-II has supported the orders impugned. Having heard the learned counsel on either side, at length, we are of the opinion that the contentions raised by the learned senior counsel appearing for the petitioners cannot be gone into by this Court since the O.A. is pending. They may be gone into by the Tribunal while disposing of the said O.A. However, in the facts and circumstances of the case, without expressing any opinion on merits, we modify the order, dated 06.08.2008, passed by the Andhra Pradesh Administrative Tribunal in O.A.No.6371 of 2008 to that of the status quo for a period of three weeks and the Tribunal is directed to dispose of the said O.A. on merits, expeditiously, preferably within a period of three weeks from today. The Writ Petition is disposed of accordingly. No costs. _____________________ GHULAM MOHAMMED, J ______________ C.V.RAMULU, J Dated: 11.08.2008. Note: Office to dispatch copies forthwith. (Bo) sj ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The State of Andhra Pradesh Rep. by its Prl. Secretary , Department of Higher Education Secretariat, Saifabad, Hyderabad. 2 The Commissioner & Director of Collegiate Education Nampally, Hyderabad. 3 The Commissioner & Director of Intermediate Education, Nampally, Hyderabad. 4 Two CCs to GP FOR SERVICES II 5 Two CD copies Form-NIC-OGS/WP{VSMI}