Telangana proposed decision may fail legal test

Hyderabad: The proposed decision of the Telangana government to take 1956 as the cut off to determine the local status of students to extend the fee reimbursement scheme may not stand judicial scrutiny.

As per the provisions of the Constitution, it is for Parliament to decide the local status of a person and not state governments.

In the case of Yogesh Bhardwaj versus the state of Uttar Pradesh, the Supreme Court held that “Parliament is empowered to make the law prescribing residential requirements within a state or Union Territory in relation to a class or classes of employment. In absence of Parliamentary law, even the prescription of requirement as to residence within the state is a taboo.”

The Telangana government has been claiming that the fee reimbursement scheme is a state government policy that benefits students of lower income groups and is not based on caste and religion. Therefore, the state has the power to decide to whom the benefit should be extended to.

It has also claimed that the decision of taking the year 1956 as a benchmark to determine the local status of a student is only confined to the fee reimbursement scheme and it will not be applicable for employment and admissions into colleges.

Legal experts, however, say that the government cannot adopt two policies, one for admissions and another for fee reimbursement.

Article 16 guarantees equality of opportunity to all citizens in matters relating to employment or appointment to any office under the state. It reinforces that guarantee by prohibiting discrimination on the grounds of religion, race, caste, sex, descent, place of birth and residence or any of them.

The Rajasthan government had decided to give priority to rural students for admissions into medical courses by giving them bonus marks. The SC held that measures taken by the state on considerations of localism are not sanctioned by the constitutional mandate of equality.

Similarly, a maiden effort of the Jharkhand government, after its formation, to determine the local status of persons by taking into consideration the stay of three generations in a particular district to consider local status went against the government in judicial scrutiny.

A five-member Bench of the Jharkhand High Court held that whatever be the other considerations, no state can be permitted to exclude from the definition of “local resident” (for any purpose whatsoever) any such person who, being a citizen of India, has set up residence in any part or territory of such state, notwithstanding the fact that the period for which the residence has been set up is shorter as compared to the natives, originals or the aboriginals.

In one case, the then Chief Justice of India, Justice Bhagwati, had underscored the need for evolving a policy of ensuring admissions into MBBS courses on an all-India basis “based as it is on the postulate that India is one nation and every citizen of India is entitled to have equal opportunity for education and advancement.”

Telangana’s stand: Fee reimbursement is state government policy, therefore, Telangana has the power to decide who should benefit. Telangana state has also said the nativity clause will be applicable only for this scheme.

However: Legal experts say state cannot adopt two policies, one for admission and another for fee reimbursement. Similar attempts by other state governments were also struck down in the past