WA/1491/2009 of Osmania University rep. by its Vice Chancellor, Vs Bommera Sammaiah on 31 December 2009

*THE HON’BLE SRI JUSTICE GODA RAGHURAMAnd

THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN

+W.A.Nos. 1491 & 1492 of 2009

%THURSDAY, THE 31[ST] DAY OF DECEMBER, TWOTHOUSAND NINEW.A.No. 1491 of 2009#Osmania University rep., by its Vice-Chancellor,Osmania University, Hyderabad and others. AppellantsAnd$Bommera Sammaiah and others. RespondentsW.A.No. 1492 of 2009Osmania University rep., by its Vice-Chancellor,Osmania University, Hyderabad and others.AppellantAndL.Shalini D/o. L.Rajaiah Respondent! Counsel for the Appellants : Advocate General^ Counsel for the Respondents: Sri Bojja Tarakam & Sri D. Prakash Reddy Sri K.Ramakrishna Reddy Senior ounsel< Gist:> Head Note:?

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESHAT HYDERABAD

THURSDAY, THE 31[st] DAY OF DECEMBER, 2009 PRSENT:

THE HON’BLE SRI JUSTICE GODA RAGHURAMAnd

W.A.Nos. 1491 & 1492 of 2009

W.A.No. 1491 of 2009

Between:-

Osmania University rep., by its Vice-Chancellor,Osmania University, Hyderabad and others.

And

Appellant/Respondents.

Bommera Sammaiah and others.

Respondents/Writ petitioners.

W.A.No. 1492 of 2009

Between:-

Osmania University rep., by its Vice-Chancellor,Osmania University, Hyderabad and others.

And

Appellant/Respondents.

L.Shalini D/o. L.Rajaiah

Respondent/Writ petitioner.

THE HON’BLE SRI JUSTICE GODA RAGHURAM

W.A.No.1491 & 1492 of 2009

Common Oral order: (Per: The Hon’ble Sri Justice Goda Raghuram)

The two appeals are directed against a common order dated29-12-2009 of the learned single Judge in W.P.Nos. 28521 of 2009and 28567 of 2009. The writ petitions challenged inter alia thecircular dated 27-12-2009 issued by the Registrar, OsmaniaUniversity, Hyderabad (the University), communicating the decisionof the Executive Council of the University (the E.C.) to close all thecampus, constituent and affiliated colleges under the University’sjurisdiction as well as all the hostels and messes on the campus andconstituent colleges of the University, during 28-12-2009 to 05-01-2010. All the campus, constituent and affiliated colleges are to beclosed during 26-12-2009 to 05-01-2010.

The order under appeal records a prima facie conclusion thatthe power to close hostels is vested in the principal of the concernedinstitution under Clause 27 of the Rules and Regulations, 2006framed by the University as is set out in the Hand Book of Hostelsand Messes (the Hand book) and that the decision to close messescould be resorted to during summer vacations. It is also observed (inthe order under challenge) that whether the Executive Council of theUniversity could legitimately take into consideration the letter dated24-12-2009 of the Commissioner of Police Hyderabad (theCommissioner) and instructions received by the Vice-chancellor ofthe University from the State Government needs to be considered ata later stage. The order directs that such of the regular boarders whowish to remain in the hostels and continue their studies ought not tobe compelled to leave but should not however be permitted to resortto acts of violence or disturbances in the campus. Accordingly whilesuspending the circular dated 27-12-2009 (directing closure asalready adverted to) certain conditions were imposed viz., (a) thatonly the genuine boarders, who have valid admissions in the hostelswould be entitled to stay and avail the facilities; (b) the boarders shall not resort to violence or other objectionable activities in thehostels; and (c) shall not give opportunity to outsiders to share theiraccommodation.

The learned Advocate General appearing for the appellantscontends that the circular impugned was a communication by theRegistrar of the University, of the decision of the E.C. taken inpurported exercise of powers under Section 19 (14 and 22) of theAndhra Pradesh Universities Act, 1991 (for short ‘the Act,); that theE.C’s decision was after due consideration of the relevantcircumstances and on exercise of independent discretion on thebasis of its assessment of the law and order situation including asrevealed in the advisory of the Commissioner qua the letter dated24-12-2009;and the decision by the E.C. was a pre-emptive andprophylactic measure to prevent acts of violence and to maintain lawand order and tranquility. The learned Advocate General would alsocontend that the provisions of paragraph No. 27 of the Handbook orthe paragraph therein dealing with the “Vacation for Colleges beingvacation for Hostels” (page No. 39 of the compilation in W.A.No.1491 of 2009) cannot circumscribe or diminute the plenitude orcontours of the discretion, powers and authority of the E.C.consecrated qua the provisions of Section 19 (14) and (22) of theAct. The appellants further contend that the State and itsappropriate agency/authority – Commissioner (for the territorieswithin his jurisdiction) are the constitutional and lawful repositories ofthe power and thus the concomitant obligation to maintain publicorder, peace and tranquility. The State and the Commissioner haveaccess to critical and relevant inputs and information and have theexpertise to analyse and synthesise the inputs and informationcoupled with the authority to arrive at a judgment of current andpotential threat to public order and peace and the concomitantauthority to initiate appropriate measures to meet current or dynamicsituations. The University is not equipped nor has the expertise todeal with or access to relevant and critical information to managelaw and order even within its territory and must of necessity dependupon and defer to the assessment made in this behalf by the State or its Authorities/Agencies.

Sri Bojja Tarakam and Sri D. Prakash Reddy, the learnedsenior counsel appearing for the respondents in these appeals (thewrit petitioners) and Sri K. Ramakrishna Reddy, the learned Seniorcounsel appearing for the petitioner in W.P.Sr.No. 153494 of 2009 (awrit petition not on Board along with these appeals, but asserted toinvolve similar issues as arising in these appeals) seek to sustainthe order appealed against.

The following are the generic contentions urged on behalf ofthe respondents. For the nonce, the discourse is confined to theclosure of the hostels and messes.

(a) The Executive Council has no decisional authority toclose hostels and messes. Such power vests exclusivelyin the Principal of the college concerned or the warden asthe case may be, under the provisions of Paragraph 27 ofthe Hand Book, published by the Chief Warden, Hostelsand Messes, Osmania University, Hyderabad;close hostels and messes. Such power vests exclusivelyin the Principal of the college concerned or the warden asthe case may be, under the provisions of Paragraph 27 ofthe Hand Book, published by the Chief Warden, Hostelsand Messes, Osmania University, Hyderabad; (b)There was no independent application of mind by theUniversity/E.C. and the decision communicated by thecircular dated 27-12-2009 is therefore vitiated;University/E.C. and the decision communicated by thecircular dated 27-12-2009 is therefore vitiated;

(c) There was no material to justify the decision; (d)The University/E.C. of the University had abdicated itsdiscretion and permitted itself to be dictated to by theCommissioner;discretion and permitted itself to be dictated to by theCommissioner;

(e) The decision visits the boarders of the hostels includingthe students residing in various parts of the State andforeign students as well with hardship grosslydisproportionate to the potential or apprehended injury topublic tranquility, law and order, that the decisionendeavors to address;the students residing in various parts of the State andforeign students as well with hardship grosslydisproportionate to the potential or apprehended injury topublic tranquility, law and order, that the decisionendeavors to address; (f)The attendant circumstances do not justify such pre-emptive action; while the note on the E.C. resolutionrefers to consultations the Vice Chancellor apparentlyhad with University officials, staff associations, policeofficials and to the constitution of a Coordinationemptive action; while the note on the E.C. resolutionrefers to consultations the Vice Chancellor apparentlyhad with University officials, staff associations, policeofficials and to the constitution of a Coordination Committee with the Prinipals of Campus colleges,University officials and representatives of Teaching andnon-teaching staff; there was no consultation with or ahearing afforded to the principal stakeholders in thematter viz., the boarders and hostelers.

(g) The decision to close the hostels and messes runscounter to the direction dated 09-12-2009 in W.A.Nos.1491 and 1492 of 2009 whereby this Court directed thatstudents who are bonafide boarders staying in the hostelsshould not be evicted and shall be provided with basicnecessities like water, electricity and food while permittingthe police and other concerned authorities to identifybonafide boarders, to ensure that they are not evicted. Nospecial reasons are recorded for acting in deviation of thedirections of this Court dated 09-12-2009; andcounter to the direction dated 09-12-2009 in W.A.Nos.1491 and 1492 of 2009 whereby this Court directed thatstudents who are bonafide boarders staying in the hostelsshould not be evicted and shall be provided with basicnecessities like water, electricity and food while permittingthe police and other concerned authorities to identifybonafide boarders, to ensure that they are not evicted. Nospecial reasons are recorded for acting in deviation of thedirections of this Court dated 09-12-2009; and (h)Sri Bojja Tarakam, the learned senior counsel wouldadditionally contend that as the Act constitutes a completecode incorporating all powers, authority and jurisdiction ofthe concerned University to regulate all activities(academic and other) within its territorial locus, exercise ofgeneral executive power including by the Commissioner,to assess the law and order matrix or to issue directives inthat behalf is pro-tanto excluded.additionally contend that as the Act constitutes a completecode incorporating all powers, authority and jurisdiction ofthe concerned University to regulate all activities(academic and other) within its territorial locus, exercise ofgeneral executive power including by the Commissioner,to assess the law and order matrix or to issue directives inthat behalf is pro-tanto excluded.

Analyses of the competing positions:

The jurisdiction of the University/E.C.:

Analyses of the competing positions:

The jurisdiction of the University/E.C.:

Paragraph 27 of the Hand Book reads: The Hostels andMessess may be closed by the order of the Principal concerned andby the prior permission of the Vice Chancellor for such period asthey consider necessary. The paragraph (of this Hand Book) sub-titled “Vacation for Colleges is Vacation for Hostels” states that thereare three types of vacations viz., short term, winter and summervacation; during summer vacation mess facility will not be availableand hostels and messes will be closed for all the boarders and nowater and power will be available during this period.

Though the Hand Book purports to constitute a compilation of the rules and regulations, pertaining to regulation of hostels andmesses, the statutory basis for these raft of “rules” is neither apparentnor established. Prima facie, the contents in the Hand Bookcomprise a raft of guidelines to structure the discretion of theauthorities for efficient administration of hostels and messes, at besta manual of instructions for local administration of theseestablishments.

The relevant legislative provisions:

Section 19 of the Act occurs in Chapter-IV, enumerating theAuthorities of the University and enumerates powers and duties ofthe Executive Council. Sub-section (14) consecrates to the E.C. theauthority to manage and control all colleges, hostels, libraries,laboratories, museums and the like, instituted and maintained by theUniversity; and sub-section (22) authorizes the E.C. to supervise andcontrol the residence and discipline of the students of the Universityand to make arrangements for promoting their health and well-being.

On a true and fair construction of the provisions of Section 19of the Act, it is clear that the powers and authority of the E.C. (tosupervise and control the residence and discipline of the studentsand to maintain and control all colleges, hostels…, instituted andmaintained by the University), subsumes authority to order closure ofthe hostels and messes. As the consecration of such power to theE.C. is not subject to any contrary prescription in any “rules andregulations” or the provisions enumerated in the Hand Book ofHostels and messes, we are not persuaded to accept the contentionthat the E.C’s statutory authority is servient to the authority of theconcerned Principal or the Warden of the hostel. The circular dated27-12-2009 issued pursuant the E.C. resolution dated 25-12-2009,we accordingly hold, is eminently within the power, authority andjurisdiction of the E.C. The contention to the contra addressed bythe respondents is therefore rejected as fundamentallymisconceived.

As adverted to in brief earlier, Sri Tarakam, the learned SeniorCounsel, has contended that as the provisions of the Act expresslyor by implication confer operational autonomy on the concerned University (to regulate all matters within its territory), the executivepower of the State or of the Commissioner is excluded in so far as itpertains to administration within the territory of a University. Wehave not been invited to any provision of the Act which expressly orby any contextual implication probablise such extravagantconstruction.

The constitutional allocation of powers is too well settled; thatlegislative power and subject thereto the executive power of theState extends to all matters enumerated in the appropriate lists in theVII Schedule. The Act is not apparently a legislation referable to thefield of legislation enumerated in Entries 1 or 2 of List II of the VIISchedule which deal with “Public Order” and “Police” (we are not inthese appeals concerned with the exceptions enumerated in entries1 and 2). It is not the asserted case of the respondents herein thatthe jurisdiction of the Commissioner does not generically extend tothe University campus or of its affiliated and constituent colleges, inrespect of which the order of the Commissioner dated 24.12.2009 isaddressed. In the absence of any specific provision in the Actconferring special, exclusive or overarching law and ordermaintenance authority and obligation on the University or any of itsauthorities, we find no justification for interpreting an exclusion of thejurisdiction of the State or the Commissioner as regards themaintenance of the public order and exercise of policing powers,including in the territory of the University. No other jurisdictionalinfirmity of the Commissioner is canvassed before us.

On the above analyses, the contention of Sri Tarakam, isrejected.

Abdication of discretion of the University/Executive Council –surrender of discretion to the Commissioner of Police and theState:

The contentions in this regard on behalf of the respondents/writ petitioners are manifold. It is contended that the decision of theE.C. dated 25.12.2009 (as is apparent from the note, at Pages 47and 48 of the compilation in W.A.No.1491/09), is exclusively based on the advisory/directive of the Commissioner, vide the letter dated24.12.2009; that no independent assessment is made by theUniversity as to whether the situation warranted the “extrememeasure” of closure of the hostels and the messes during28.12.2009 to 5.1.2010; that the exclusive reliance on theCommissioner’s communication constitutes abdication/surrender ofthe discretion of the University to an extraneous authority.

The above contention does not also merit acceptance, in ourconsidered view. As noted in the analyses supra, the Commissionerhas the jurisdiction and authority, access to relevant and criticalinformation and inputs and the requisite training and expertise tosynthesise and analyse the complex and dynamic intelligence inputsreceived, tomake a professional judgment on law and orderrequirements in respect of the territories within his jurisdiction whichincludes the University campus, the hostels and messes on thecampus and in the constituent and affiliated colleges.

In contrast, the text and the scheme (of the several provisionsof) of the Act do not signal conferral of authority on the University, itsauthorities or the authorities of its affiliant and constituent colleges, toregulate or administer general law and order, beyond the incidentalareas, concomitant to the University as an essentially academicinstitution. There is nothing in the qualifications, experience orbackground of the several authorities of the University that investsthem with the skills requisite to the complex task of intelligencegathering, assessment and execution of law and order functions.

Such autonomy as a University enjoys qua the provisions ofthe Act is autonomy to function effectively as an academic institutionof higher learning. The University is not a sovereign entity immuneto the exercise of general State powers, except to the extent it isendowed operational autonomy by specific provisions of the Act. Necessarily therefore it is not and cannot be equated to the State. Where therefore the State in exercise of its constitutional obligationsand on the basis of its professional judgment, issues directives (notinconsistent with any exclusive or independent functions conferredunder the provisions of the Act), the University would have to comply with such directives/instructions, particularly in areas of general lawenforcement and maintenance of peace and tranquility, health orhygiene.

The powers of the State are referable to the several fields oflegislation enumerated in the appropriate Lists of the VII Schedule ofthe Constitution. The executive powers of the State are exercised bydifferent branches, departments and authorities having diverse,training, expertise and infrastructure support, relevant to executingthe areas of responsibility conferred on each of them. In theadministrative complexity involved in the governance of a State eachof such specialised agencies also receives and defers to theexpertise of another agency in arranging its affairs and delivering itsfunctions. It is such symbiotic relationship that contributes toeffective governance and to the sustained equilibrium of the society.

Even the University must of necessity rely on several externalagencies in the conduct of its day-to-day affairs and manages itsadministration on the basis of inputs received from several suchagencies like the Municipality, the Health department, the Policedepartment and the like. Even though law and order maintenance isa State subject, the State normally defers to and relies onintelligence inputs received from federal agencies or healthadvisories received from other States, National or even Internationalagencies.

If the Commissioner, on the basis of his professionaljudgment is satisfied that law and order, maintenance of tranquilityand avoidance or recurrence of violent incidents warrants aparticular curative or pre-emptive course of action and the Universitydefers to such professional assessment, such would not in ourconsidered view constitute either abdication of the discretion of theUniversity or its surrender to extraneous authority. In the context ofthe law and order maintenance, the Commissioner is neither anextraneous authority nor is his opinion irrelevant.

The authority of the University and a concomitant obligationu/Sec. 19(14) and (22) is effectively executed, in our consideredview, when the E.C. considers all relevant inputs including information/advisory received from the Commissioner. Havingregard to its structural limitations and the authority and the expertiseof the Commissioner, the University would be acting inconformitywith its statutory obligations and not in derogation thereof, if it defersto an advisory from the Commissioner in respect of law and order.

The exercise of discretion by the University as expressed inits resolution dated 25.12.2009, on the basis of theinformation/advisory received from the Commissioner is thus alegitimate, rational and valid exercise of discretion and cannot befaulted.

It has also been contended that there is no factual basis,either in the letter of the Commissioner dated 24.12.2009 or in thedecision of the E.C. dated 25.12.2009, legitimising the closure ofhostels on the campus and the affiliated and constituent colleges,during the period in question. The letter of the Commissioner dated24.12.2009 (to the extent relevant for the purposes of these appeals),states that the after the second statement of the Union Home Ministeron 23.12.2009, the pro-Telangana agitation had recommenced andwithin hours thereafter, the JAC students of Osmania University hadgathered at the campus, took out rallies and resorted to violence atTarnaka X Roads causing damage to public and private properties;that within 12 hours, about 75 violent incidents were reported inHyderabad city alone. The Commissioner’s letter (to the Vice-Chancellor) further states that JAC students are planning to organizevarious agitations which may turn violent and may include physicalattacks on law enforcement agencies, lead to destruction of publicand private properties and involve infiltration of outside and anti-social elements having militant background, a matter of seriousconcern for public order. The letter concludes with an assessmentthat students are planning many more agitations which may turnviolent and therefore it is requested to close down educationalinstitutions including hostel facilities, for at least 15 days.

The E.C. (note) refers to the communication received from theCommissioner and the request contained therein and thereafterresolves to close the hostels and messes during the period in question. Neither the letter of the Commissioner nor thedeliberations of the E.C. refer to or advert specifically to theinvolvement of the authorized boarders resident in the hostels in theviolent incidents that are said to have earlier transpired. The letterof the Commissioner or the deliberations of the E.C. do not discloseor explicate an assessment that closure of the hostels (and messes)together with the closure of the educational institutions concerned isa cordon sanitaire strategic requirement with a view to dismantle orsterilize the territorial nucleus of the theatre of conflict and unrest.

To the above extent there appears no correlation between thefacts set out in the Commissioner’s advisory or the deliberations ofthe E.C. on the one hand and the eventual decision on the other (toclose down the hostels and messes). In our considered view, if it isassessed that the closure of the hostels and messes is eitherrequired for maintenance of peace, restoration of tranquility or pre-emption of violence or other un-toward incidents, either on accountof the boarders of the hostels participating in violent or untowardincidents or even that evacuation of the campus or the institutionswould contribute to restoration of normalcy, it would be legitimate toorder closure. There is however, no apparent assessment on thisaspect, either in the letter of the Commissioner or the deliberations ofthe E.C. dated 24.2.2009 and 25.12.2009 respectively. We thereforeconsider it appropriate that the Commissioner and the Universityshould reconsider this aspect of the matter, before giving effect to thedecision regarding closure of the hostels and messes.

Another contention is that in view of the order of this Court(dated 9.12.2009 in W.A.No.1431 of 2009), neither the University,the Commissioner nor the State (which are parties to the writpetition) could have ordered the closure of the hostels and messes. It requires to be noticed that the order of this Court was in the contextof an appeal arising from an order of the Learned Single Judge in awrit petition challenging the orders of the State Government inG.O.Rt.No.856, Higher Education Department dated 3.12.2009 andcertain consequent orders of the University on the basis of the saidorder, pertaining to closure of hostels. This Court while adjourning further hearing of the appeal to 14.12.2009 ordered that during theinterregnum bona fide boarders of the hostels shall not be evictedand shall be provided with basic necessities like water, electricityand food.

In the very nature of separation of powers under ourConstitution, the orders of this Court dated 9.12.2009 cannot beunderstood as an exclusive and permanent assumption by thejudicial branch, of the jurisdiction to maintain law and order. Theorder is also limited in time till the next date of hearing namely14.12.2009. Neither expressly nor by any compelling implication ofthe phraseology of the order could it be legitimately concluded thaton account of it, the State, the Commissioner or the University as thecase may be, are denuded the authority to perform constitutionally orstatutorily assigned functions including of maintenance of regulatory,public order or policing functions,. Law and order maintenance,ensuring the well being and health of the students of the Universityand ensuring peace and tranquility in the University campus or theaffiliated and constituent colleges as the case may be continues tobe a function of the authorised agencies including the State. Thecontention that the order to close the hostels and messesoverreaches the order of this Court dated 9.12.2009, is misconceivedand is accordingly rejected.

The contention on behalf of the respondents, that the decisionas to closure is vitiated by the failure to consult or even consider theviews of the boarders of hostels, in our considered view does notmerit acceptance. The discussions amongst the Universityauthorities or with police officials was an operational choice of theUniversity; not a legal requirement. These confabulations were alsonot in the context of the decision in question. We have alreadyconcluded that the assessment of the situation by the State and/orthe Commissioner is a relevant input and deserves dueconsideration and deference by the University. As law and ordermaintenance in any part of the territory of a State is the concern ofthe State, the temporal statutory authority of the University to take acomplimentary decision as to closure of educational institutions under its administration and control including ancillaryestablishments like hostels, must complement the decision by theState in this regard. On this view of the matter the decision ofclosure need not be preceded by a consultation with or opportunityto the student community, including boarders of hostels.

On the aforestated analyses, we (a) hold that the ExecutiveCouncil of the University has the power, authority and jurisdiction toorder closure of hostels including messes, qua Section 19 (14) and(22) of the A.P. Universities Act 1991. Such power to order closureof messes and hostels operates notwithstanding any conferral ofpower set out in the hand-book of Hostels and Messes; (b) hold thatthe public order maintenance jurisdiction of the Commissioner ofPolice extends to all the territories within the jurisdiction of theCommissioner of Police, Hyderabad including territories of theOsmania University and its constituent and affiliated colleges as fallwithin such jurisdiction; (c) that any advisory issued by theCommissioner of Police on a rational law and order or other publictranquility assessment constitutes a legitimate and expert advicewhich the University can take into account and ought normally todefer to; and (d) that the Commissioner of Police and the ExecutiveCouncil of the University must again consider whether the closure ofthe hostels and messes is required for the maintenance of law andorder, restoration of tranquility or avoidance of violent or untowardincidents in the context of contemporaneous events, either as acurative or prophylactic measure.

As these writ appeals arise from an interlocutory order, theappeals are disposed of as above and the order of the learnedSingle Judge dated 29.12.2009 is modified to the extent aboveindicated. There shall, however, be no order as to costs.

RAGHURAM,J)Dt:31.12.2009Pvks/Asp

RANGANATHAN,J)

(GODA

(RAMESH

NB:- A copy of this order to be issued to the Advocate GeneralimmediatelyB/oPvsnL.R Copy to be marked B/o