1. These two petitioners are seeking admission into the Andhra University College of Engineering, Waltair against the quota of seats reserved for the children of the University employees. Admission to the Andhra University College of Engineering is based upon the marks obtained by the aspirants at the common entrance examination conducted by the Universities in Andhra Pradesh. These petitioners along with others had appeared for the common entrance examination and secured each 44 out of 150 marks. This was the same number of marks which one Nanda Kishore had secured. The petitioners allege that on the basis of these marks they, as well as Nanda Kishore, applied for admission into the above collect under the quota of 16 seats reserved for the childing of the staff working in the Andhra University. Clause 4(D)(6) of the College prospectus issued by the Andhra University Engineering College for the year 1983-84 entitles the children of the teaching and non-teaching staff working in the University for such reservation. It however, appears that the Andhra University Syndicate at its meeting held on 16th September 1983 found the petitioners and the above mentioned Nanda Kishore not to be qualified at the common entrance examination. That was on the assumption that the marks secured by them were below the minimum prescribed. The petitioners, therefore, along with the aforementioned Nanda Kishore had filed several writ petitions in this Court. A learned single Judge of this Court by his order dated 6-2-84 found the petitioners to be eligible and directed that their cases for admission into the above engineering collect should be considered according to the order of their respective merits. In obedience to the order passed by this Court, the University reconsidered the matter but rejected the petitioners' claim for admission while it admitted the aforementioned Nanda Kishore into the Engineering College. The petitioners say that the above mentioned Nanda Kishore admitted even by creating an extra seat while they were denied admission, although they secured the same number of marks as Nanda Kishore did. They allege that Nanda Kishore was the son of the head of the Department of Civil Engineering and special favour had been shown to him by the University. They, therefore, pray that this Court may direct the University and the Engineering College to provide each one of them with a seat.
2. This writ petition is opposed by the University through a counter affidavit filed by one of its Assistant Registrars.
3. In the counter affidavit, it is broadly admitted that previously these two petitioners and Nanda Kishore had filed writ petitions and that this Court had earlier directed the University to consider the case of the petitioners on their merits. The counter affidavit asserts that Nanda Kishore was given a seat on the basis of his merit measured by his Intermediate marks of 80.5% secured in the group subject as against the lower marks of 60.3% and 70.6% secured by the first petitioner and the second petitioner respectively. The counter also says that the first petitioner did not submit any application form for admission and that he merely submitted a representation and that the second petitioner though submitted an application 27-7-83 it was beyond 30.6.83 which was the last date fixed for receiving applications. It was on the basis of the above counter allegations the University had opposed the writ petition.
4. From the facts stated above. I do not find it possible to uphold the contention of Sri Bhagiratharao, the learned counsel for the petitioners that his two clients should be given two seats merely on the basis of the earlier adjudication by this Court. The earlier adjudication appears as constructive res judicata. In my opinion, the previous adjudication had nothing to do with the question which are now considered by the University and on the basis of which the petitioners' claims were rejected. In the previous writ petition,this Court merely found the petitioners to be eligible to be considered. Now the University having accepted their eleigibility,considered their cases and rejected them on the ground of merit. To this situation, the doctrine of res judicata would have no application. The other argument of the petitioners that Nanda Kishore was favoured also appears to be ill-founded. The higher marks which Nanda Kishore secured in his Intermediate examination can form a reasonable basis for the preference.
5. For the above reasons alone this writ petition should fail. But it appears to me that this writ petition should be dismissed on much more substantial grounds. The writ petition is based upon a claim that the children of the University employees can constitutionally have certain number of seats in the University reserved for them. It is undoubted that there is such a rule providing for reservation for the children of the University employees and has been in force for quite some time. Yet the question is whether such a rule can be upheld. I am clearly of the opinion that the rule is wholly unconstitutional. In fact, it is shocking that a rule conferring special favours in the State owned educational institutions run at the cost of the public exchequer should have been made and enforced by the University. The Charter of the Andhra University shows that it is open to all on terms of equality. The rule in question in my opinion, is contrary to the University charter. It is equally contrary to the great cultural others of our country which praise and prize education not only as a great instrument for self-help and self-realization, but also as a virtue in itself. Earl Wareen the second greatest Chief Justice of the American Supreme Court in Brown v. Board of Education (1954) 347 U.S. 483noted that education is the most important function of State today and that it is the very foundation of good citizenship. He observed that no child could reasonably be expected to succeed in life if he was denied the opportunity of education and ruled on that basis that such an opportunity where the State has undertaken to provide it, is a right which must be made available to all on equal terms. It follows that admission to the educational institutions can only be on the basis of merit. Any rule providing for preference to be shown for the mediocre cannot be justified even if the mediocre children happened to be the children of the University employees. In that view, I am clearly of the opinion that the rule of reservations made in favour of the children of the University employees which is the basis of this writ petition is itself unconstitutional.
6. A somewhat similar reservation made by the State of Kerala providing for admission of the children of the Registered Medical Practitioners into the Medical Colleges was struck down by the Kerala High Court in State of Kerala v. Jacob : AIR1964Ker316 . I respectfully agree with that view. However, a learned single Judge of this Court in Subbarao v. Andhra University (W.P.No.7188/79) upheld the validity of this very rule made by the Andhra University. The reasoning of the learned Judge in that case was that the seats reserved for the employees children were extra seats over and above the general seats. From that fact, the learned Judge concluded that the general students were not eligible to compete to these extra seats and therefore cannot question the validity of the rule reserving these extra seats created for the benefit of the children of the University employees. I find it difficult to follow this line of reasoning. It appears tome to be plain that so long as the so-called extra seats are created by the State and so long as these extra seats are financed by the State, no distinction of any constitutional significance between the extra seats and the original seats can be drawn. All seats created by the State and financed by the State must be thrown open for competition by all and on equal terms. The constitutional requirement that education should be available to all cannot be allowed to be defeated by the plea that extra seats were above the Constitution. It is not unoften that people forget that public education is ultimately financed by the peasants working in the fields and the workers in the factories.
7. Suhumacher in 'Small is Beautiful' quoted the Chinese estimate to say that it took 30 Chinese peasants to keep one man to a University. In India, the situation cannot be much different. I find no legal or moral justification for the State to reserve certain of the seats for the children of the University employees. Such an action defeats the main purpose of the equality clause in our Constitution. The cardinal message and the central theme of the principle of Equality contained in Article 14 of our Constitution is to deny the State the legal authority to place greater impediments in one person's way of pursuing his happiness and realising his destiny more than the impediments placed in another's way. In Barbier v. Cannolly (1883084) Law Ed. 923 the American Supreme Court observed:
'No greater burdens should be laid upon one than are laid upon others in the same calling and condition.'
8. Clearly, the rule of reservation makes easier for the children of the University employee to gain entrance into the engineering colleges than other children. This privilege conferred by reason of one's birth, in my opinion, clearly runs foul of the right to Equality. I am therefore of the opinion that the rule reserving seats in the University for the employees children cannot be constitutionally upheld. Consequently, this writ petition which is based upon the assumption of validity of such a rule of reservation and seeks on that basis for the enforcement of that rule in favour of the petitioners should be dismissed.
9. For all the aforesaid reasons, I dismiss this Writ Petition , but without costs.
10. Petition dismissed.