Education act = when the application filed by the appellant for establishment of a new degree college has already been rejected by the Government earlier, the respondent-authorities ought not to have granted permission to the appellant to shift the degree college being run by the 5th respondent from Rajkal Mandal to Yellareddypet Mandal and such exemption was only granted to give route to the appellant to reach its' goal. In our opinion, the law is well settled that an official act, prescribed to be performed in a particular manner, if such action is performed otherwise, it cannot be sustained in the eye of law and should be struck down by the Court. In our opinion, as has been held by the Hon'ble single Judge that Section 100 of the Act is couched in such mandatory terms that unless specifying reasons and publication of the notification in the Gazette are satisfied, the Government cannot exempt any educational institution from the operation of all or any of the provisions of the Act or the rules made thereunder.

THE HON'BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR              

Writ Appeal No.1343 of 2012

7.12.2012

 Sadasiva Sri Educational Society, Karimnagar District.

Gayathri Degree College, Yellareddypet Mandal,Karimnagar District and others.

Counsel for the Petitioner: Sri N. Krishna Sumanth

Counsel for Respondent No.1: Sri M.Ravindranath Reddy
Counsel for Respondent No.2: Sri AGP for Higher Education
Counsel for Respondent No.3: Sri C.Sudesh Anand
Counsel for Respondent No.4: Sri Deepak Bhattacharjee

<Gist :

>Head Note:

?Cases referred:                A.I.R. 1976 Madhya Pradesh 76(1)
                                A.I.R (39) 1952 SC 16
                                A.I.R. 1978 SC 851

               

Writ Appeal No. 1343 of 2012


Judgment: (per the Hon'ble the Acting Chief Justice Sri Pinaki Chandra Ghose)


        This writ appeal is directed against the order dated 3.9.2012 passed by
the Hon'ble Single Judge in Writ Petition No. 19016 of 2012.
        The 1st respondent-writ petitioner filed the aforementioned writ petition
before the Hon'ble Single Judge seeking for a writ in the nature of mandamus to
declare the action of the 2nd respondent herein, in issuing G.O.Rt. No. 336,
Higher Education (C.E.II.2) Department, dated 16.6.2012 as illegal, arbitrary,
without jurisdiction and violative of the provisions of the Andhra Pradesh
Education Act, 1982 (for short 'the Act') and the rules made thereunder.
        The writ petitioner questioned the issuance of the said G.O. Rt. No. 336,
dated 16.6.2012 through which the authorities permitted respondent No. 5 to
shift Nalanda Degree College from one leased building to another leased building
and also to transfer the management of the said college to the
appellant-4th respondent by relaxing sub-rule (3) of Rule 14 of Andhra Pradesh
Educational Institutions (Establishment, Recognition, Administration and Control
of Institutions of Higher Education) Rules,1987 (for short' the Rules') issued
vide G.O. Ms. No.29, Education dated 5.2.1987 read with G.O. Ms. No.35,
Education, dated 25.4.2007 and G.O. Ms. No. 211, Education, dated 8.11.2007.
The writ petitioner filed the writ petition challenging G.O. Rt. No.336, dated
16.6.2012 on the ground that the said G.O. was issued in violation of the Rules.
         According to the writ petitioner, the appellant-respondent No.4 having
failed in its attempt to establish a new degree college in Yellareddypet Mandal,
has designed a new method to achieve the same indirectly and accordingly
approached the 2nd respondent with an application to grant permission to shift
the existing degree college being run by the 5th respondent from Rajkal Mandal
to Yellareddypet Mandal and alleged that such shifting of an educational
institution from one locality to another locality is strictly prohibited under
sub-rule (3) of Rule 14 of the Rules.  It is relevant to extract sub-rule 3 and
4 of Rule 14 of the Rules, which reads thus:

"Rule-14(3): No institution for which permission to establish has been granted
to meet the educational needs of a particular locality shall be permitted to be
shifted to another locality.  However, shifting institution from one building to
another within the same locality shall be permitted when the intention is to
provide better accommodation of shifting into own building, with the prior
permission of the Government.  Any unauthorised shifting of the institution
shall render lapse of permission/recognition/ affiliation granted to the
institution automatically without any further notice or orders.

Rule-14(4): Educational agency for which permission to establish an institution
has been accorded shall not transfer the institution to another educational
agency under any circumstances.  In case educational agency which has been
permitted to establish institution is unable to manage it, it may approach the
Government to consider its request for taking over of the institution provided
it has completed at least 10 years of existence."

        It is also pointed out by the writ petitioner that as per Section 20(1) of
the Act, the competent authority has to conduct a survey,  has to identify the
educational needs of the locality under its jurisdiction, and notify in the
prescribed manner through the local newspapers calling for applications from
the educational agencies desirous of establishing educational institutions.
Before filing such application, the burden lies on such educational agency,
which applies for permission to satisfy that there is need for providing
educational facilities to the people in the locality. But, it appears, in the
notifications which were issued for the years 2011-12 and 2012-13, Yellareddypet
Mandal was not included.  Under these circumstances, the writ petitioner pointed
out before the Hon'ble Single Judge that the appellant-unofficial respondent has
no right to get the said exemption under Section 100 of the Act. The writ
petitioner further submitted that the word 'locale' is different from locality
and the appellant was granted permission to shift the degree college from Rajkal
Mandal to Yellareddypet Mandal contrary to the provisions of the Act and the
Rules.
In Concise Oxford English Dictionary (Indian Edition), (Eleventh Edition,
revised), the meaning of 'locality' is defined as 'the position or site of
something; an area or neighbourhood.  Further in the Chambers 21st Dictionary
(2001 reprint), the meaning of 'locality' has been defined as 'a district or
neighbourhood; the scene of an event; the position of a thing'.
In the 'Law Lexicon', The Encyclopaedic Law Dictionary with Legal Maxims, Latin
Terms, Words & Phrases, 2nd Edition Reprint 2009, the word 'locality' is defined
as 'a place with an area which is sufficiently small and compact, so that naming
it amounts to a notice to all inhabitants of that area'.
The Full Bench of the Madhya Pradesh High Court in Hajari vs. The State of
Madhya Pradesh1, has interpreted the word 'locality' in the light of above
extract.
        Rule 14(3) of the Rules has specifically stated that no institution for
which permission to establish has been granted to meet the educational needs of
a particular 'locality' shall be permitted to be shifted to another 'locality'.
It has been further stated that the shifting of an institution from one building
to another within the same 'locality' shall be permitted.
        Therefore, from the said Rule, it is quite clear that the meaning of
locality, as we can read is right on the point in question.  Therefore, we find
that the exemption which has been granted to the appellant to shift the college
from Rajkal Mandal to Yellareddypet Mandal by G.O. Rt. No.336, dated 16.6.2012
is in violation of Rule 14(3) of the Rules. The rules for establishment of a new
educational institution must equally apply to shifting of an institution even if
the Government thought it fit to grant exemption to a particular educational
institution by relaxing sub-rule (3) of Rule 14, it must be done within the
parameter of the meaning of the said Rule.
  Further, the Hon'ble Single Judge after relying upon the judgments  of the
Supreme Court in Commissioner of Police, Bombay vs. Gordhandas Bhanji2 and  
Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi
and Others3, has correctly held that a statutory functionary cannot justify its
decision by assigning reasons by way of affidavits in the absence of reasons in
the impugned order but this is what is being tried to be done in the instant
case by the Government and the same cannot be accepted by the Court.
        Therefore, the official respondents also cannot justify their actions for
issuance of G.O. Rt. No. 336, dated 16.6.2012. Further,
when the application
filed by the appellant for establishment of a new degree college has already
been rejected by the Government earlier, the respondent-authorities ought not to
have granted permission to the appellant to shift the degree college being run
by the 5th respondent from Rajkal Mandal to Yellareddypet Mandal and such 
exemption was only granted to give route to the appellant to reach its' goal. In
our opinion, the law is well settled that an official act, prescribed to be
performed in a particular manner, if such action is performed otherwise, it
cannot be sustained in the eye of law and should be struck down by the Court. In
our opinion, as has been held by the Hon'ble single Judge that Section 100 of
the Act is couched in such mandatory terms that unless specifying reasons and
publication of the notification in the Gazette are satisfied, the Government
cannot exempt any educational institution from the operation of all or any of
the provisions of the Act or the rules made thereunder.
Hence, as we find that the exemption which has been granted by the 2nd
respondent for shifting of the institution in question, namely, Nalanda Degree
College from one leased building to another is contrary to the provisions of
Rule 14(3) of the Rules, in our opinion, that part of the G.O. should be
quashed.  It is unnecessary for us to deal with the other part of the G.O. since
it does not affect the rights of the writ petitioner nor it is necessary for us
to deal with the same in the present scenario.  Hence, the order of the Hon'ble
Single Judge is modified to the extent indicated above.
The writ appeal is accordingly disposed of. No costs.
__________________________  
PINAKI CHANDRA GHOSE, ACJ      
______________________  
VILAS V. AFZULPURKAR,J    
7-12-2012