January 01, 2015

Andhra misadventure on the tenth schedule


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.