published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10315
THE HON'BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND HON'BLE MS.JUSTICE G.ROHINI
WRIT PETITION No. 27777 OF 2012 and batch
20-08-2013
Joseph Sriharsha and Mary Indraja Educational Society (Regn No.662/1996) Plot
No.102,High Court Colony, Vanasthalipuram,Hyderabad Rep. by its Secretary Rev.
KVK Rao and others......... Petitioners
The State of A.P. Rep. by its Principal Secretary to Government, Higher
Education (EC.2) Department, Hyderabad...... Respondents
Counsel for the petitioners: Sri P. Sri Raghuram
Counsel for respondent No.1: G.P. for Higher Education
Counsel for Respondent No.2: Sri C. Sudesh Anand (SC for APSCHE)
<Gist:
>Head Note:
?Cases Referred:
1. (2005) 6 SCC 537
2. 2008 (3) ALD 105 (DB)
3. AIR 1951 SC 118
4. (2001) 2 SCC 386
5. (2013) 3 SCC 385
6. (2002) 8 SCC 481
7. (2009) 7 SCC 751
8. (1992) 1 SCC 558
9. (2012) 4 SCC 653
WRIT PETITION No. 27777, 27898, 27918, 28014, 28023, 28055, 28060, 28073, 28098,
28108, 28116, 28125, 28130, 28134, 28139, 28206, 28249, 28260, 28321, 28356,
28399, 28404, 28409, 28421, 28484, 28485, 28519, 28520, 28531, 28553, 28615,
28626, 28661, 28664, 29035, 29106 and 30705 OF 2012
AND WRIT PETITION Nos.16598 and 16599 OF 2013
COMMON ORDER:
The petitioners in all the writ petitions are the unaided professional
educational institutions, both non-minority and minority. They are aggrieved by
the amendments made to A.P. Unaided Non-Minority Professional Institutions
(Regulation of Admissions into Undergraduate and Pharm-D (Doctor of Pharmacy)
Professional Courses through Common Entrance Test) Rules, 2011 and A.P. Unaided
Minority Professional Institutions (Regulation of Admissions into Undergraduate
and Pharm-D (Doctor of Pharmacy) Professional Courses through Common Entrance
Test) Rules, 2011 by G.O.Ms.Nos.66 and 67, Higher Education (EC.2) Department,
dated 3.9.2012 respectively.
Thus all the writ petitions are filed seeking a declaration that the above said
Rules as amended by G.O.Ms.Nos.66 and 67, Higher Education (EC.2) Department,
dated 3.9.2012, particularly Rule 6(ii) are arbitrary, illegal and
unconstitutional.
Introduction:
Admissions to Engineering Colleges in the State of Andhra Pradesh are
governed by the provisions of A.P. Educational Institutions (Regulation of
Admission and the Prohibition of Capitation Fee) Act, 1983, (for short, 'the
Capitation Fee Act') which empowers the 1st respondent to regulate admissions
into educational institutions. Section 3(1) provides that such admissions shall
be subject to such rules as may be made in this behalf and shall be made either
on the basis of the marks obtained in the qualifying examination or on the basis
of the ranking assigned in the entrance test conducted by such authority and in
such manner as may be prescribed.
In exercise of the powers so conferred, the State Government made the Rules
called A.P. Unaided Non-Minority Professional Institutions (Regulation of
Admissions into Undergraduate and Pharm-D (Doctor of Pharmacy) Professional
Courses through Common Entrance Test) Rules, 2011 vide G.O.Ms.No.74, dated
28.7.2011. Similarly, so far as the minority institutions are concerned, A.P.
Unaided Minority Professional Institutions (Regulation of Admissions into
Undergraduate and Pharm-D (Doctor of Pharmacy) Professional Courses through
Common Entrance Test) Rules, 2011 are made vide G.O.Ms.No.75, dated 28.7.2011.
Under the above said Rules made by G.O.Ms.Nos.74 and 75, dated 28.7.2011,
the provisions of which are almost identical, the Chairman, A.P. State Council
for Higher Education is constituted as the competent authority and under Rule 3
of the Rules, the seats to be allotted in each Unaided Non-Minority Professional
Institution as well as Private Unaided Minority Professional Institution are
categorized into two sections namely Category-A seats and Category-B seats.
Rule 3 (ii) made it clear that the Category-A seats shall be 70% of sanctioned
intake of seats in each course in Unaided Non-minority Professional Institution
which shall be filled with the eligible candidates on the basis of rank obtained
at the Common Entrance Test following the procedure of admissions under Rule 6
(i). So far as Category-B seats are concerned, it is provided that the same
shall be 30% of the total intake of seats in each course in respect of Unaided
Non-minority Professional Institutions which shall be open for admission to all
the eligible candidates on merit basis following the procedure of admissions
under Rule 6 (ii).
Rule 5 (i) of the Rules provided for the method of admission of
candidates, according to which all Category-A seats shall be allotted by the
Convenor of EAMCET admission and all Category-B seats shall be filled in by the
respective institutions as per the procedure laid down in Rule 6 (ii).
Rule 6 (i) provides for admissions into Category-A seats and Rule 6 (ii)
provides for admissions into Category-B seats.
The procedure prescribed by Rule 6(ii) both under G.O.Ms.No.74 and
G.O.Ms.No.75, dated 28.7.2011 with regard to admissions to Category-B seats by
the institutions themselves, included notifying the details of the courses
offered in daily newspapers and also displaying the same on college website and
notice-board. Institutions are required to provide a facility for downloading
the application forms from the college website and the college authorities shall
maintain a register containing the particulars of day-wise sale of applications
and it shall be made available for inspection for any officer authorized by the
competent authority. The institutions are also required to prepare a merit list
of eligible applicants for each course and display the same on the website and
also notice board of the college and thereafter obtain ratification from the
competent authority for all the admissions conducted by them under Category-B
seats.
While so, the impugned notifications namely G.O.Ms.No.66 and G.O.Ms.No.67, dated
3.9.2012 came to be issued amending the Rules made under G.O.Ms.No.74, dated
28.7.2011 and G.O.Ms.No.75, dated 28.7.2011, particularly substituting Rule
6 (ii) to the effect that the selection for admission to Category-B seats shall
be conducted through a common web portal set up by the Chairman, A.P. State
Council for Higher Education.
When the said substituted Rule 6 (ii) was sought to be applied to the admission
process for the academic year 2012-13, a batch of writ petitions came to be
filed by various unaided professional Institutions challenging the vires of the
said Rules and applicability of G.O.Ms.No.66 and G.O.Ms.No.67, dated 3.9.2012
contending inter alia that the said substituted Rule cannot be applied for the
academic year 2012-13 since the admission process has already commenced.
Having regard to the admitted fact that the admissions have already taken place
in the petitioner colleges in terms of Rule 6 (ii) as it stood prior to
amendment vide G.O.Ms.No.66 & G.O.Ms.No.67, dated 3.9.2012, this Court passed an
interim order dated 11.9.2012 directing that no effect should be given in
respect of G.O.Ms.No.66 & G.O.Ms.No.67, dated 3.9.2012 for the academic session
2012-13 since the amended Rules cannot be given effect to retrospectively.
Since the said order of stay of enforcement of the substituted Rule 6(ii) was
restricted only to the academic year 2012-13, the respondents insisted that the
admissions into Category-B seats for the academic year 2013-14 should be in
compliance with the procedure prescribed under the substituted Rule 6(ii). Under
the circumstances, a fresh batch of writ petitions came to be filed by several
other unaided professional institutions, both non-minority and minority seeking
a similar declaration that G.O.Ms.No.66 & 67, dated 3.9.2012 are arbitrary,
illegal and unconstitutional.
On 13.6.2013 this court passed an interim order directing that the impugned
notifications shall not be given effect to until further orders.
The respondents filed a detailed counter-affidavit and sought to vacate the
interim order dated 13.6.2013. When the said vacate petitions are listed before
us, with the consent of both the parties we have taken up the main writ
petitions for hearing along with the writ petitions that were filed during the
academic year 2012-2013.
Contentions:
The vires of the amended Rule 6 (ii) by G.O.Ms.No.66 and G.O.Ms.No.67 dated
03.09.2012, is questioned in the writ petitions primarily on the ground that the
amended rule which imposed unreasonable restrictions on the right of the unaided
non-minority as well as minority professional institutions to make admissions to
the Category-B seats is violative of Article 19 (6) of the Constitution of
India. It is also contended that the admission procedure prescribed under the
amended Rule 6(ii) for Category-B seats is in clear violation of the dicta laid
down by the Hon'ble Supreme Court of India in P.A. INAMDAR v. STATE OF
MAHARASHTRA1. The further contention is that the procedure is unworkable since
the candidates are given option to choose any number of colleges/ subjects which
would invariably result in multiple blockage of seats making the admission
process endless.
In the counter-affidavit filed on behalf of the respondents, it is contended
that the procedure prescribed in the substituted Rule 6 (ii) has only provided a
fair, transparent and a non-exploitative procedure thereby facilitating merit
based admissions to be made under Category-B quota in the petitioner colleges.
Denying the allegation that the substituted Rule 6 (ii) is in clear violation of
the dicta laid down in P.A. INAMDAR'S case (1 supra), it is contended that the
procedure prescribed in the impugned rule is a permissive regulation in public
interest. It is further contended that the procedure prescribed in the existing
rules under G.O.Ms.No.74 and 75 being totally inadequate to oversee the
admissions into Category-B seats into huge number of colleges numbering 685
Engineering Colleges and 280 Pharmacy Colleges in the State of A.P. and it is
practically impossible for the competent authority to ensure that the Category-B
admissions are made in a transparent manner by the respective colleges,
G.O.Ms.Nos.66 and 67, dated 3.9.2012 have been issued to facilitate admission
through a common web portal. This is in accordance with the directions issued
by the Division Bench of this Court in M. RATIN AND ANOTHER v. GOVERNMENT OF
ANDHRA PRADESH2. Thus it is contended that the impugned rule which is the most
effective permissive piece of legislation made in public interest and the
student community at large cannot be held to be arbitrary, illegal or
unconstitutional.
Submissions made by the Counsel for the parties:
Leading the arguments on behalf of the petitioners, Sri P.P. Rao, the
learned Senior Counsel submitted that the restrictions imposed by the impugned
Rule 6 (ii) on the right conferred by Article 19 (1) (g) to establish and
administer educational institutions by citizens are unreasonable, wholly
unjustified and violative of Articles 19 (1) (6) of the Constitution of India.
In support of his submission, the learned Senior Counsel relied upon
CHINTAMANRAO v. STATE OF M.P.3 and OM KUMAR v. UNION OF INDIA4.
It is also submitted by the learned Senior Counsel that the very object of
categorization of seats into A and B categories is defeated by the impugned rule
since nothing is left for selection by the management if the impugned rule is
enforced.
Placing reliance upon PARSHVANATH CHARITABLE TRUST v. ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION5 wherein the Supreme Court prescribed time schedule for
admission into the colleges, Sri P.P. Rao further submitted that in view of the
unlimited multiple options given to the candidates under the impugned rule to
choose any college and any subject therein, it is impossible to complete the
selection process within the time schedule and therefore the impugned rule which
is unworkable is arbitrary and wholly unjustified.
Referring to various paragraphs from the judgment of the Hon'ble Supreme
Court in T.M.A. PAI FOUNDATION v. STATE OF KARNATAKA6 and P.A. INAMDAR'S case
(1 supra), it is contended by the learned Senior Counsel that the admission
procedure prescribed under the impugned Rule runs contrary to the law declared
therein.
It is also contended that the impugned Rule which has completely taken away the
right of rejection of unsuitable candidates made inroads into autonomy of
unaided professional colleges in the matter of administration of educational
institutions.
While reiterating the submissions made by Sri P.P. Rao, it is contended by
Sri L. Nageswara Rao, the learned Senior Counsel appearing for the other writ
petitioners that the restrictions imposed under the impugned amended rules are
beyond the regulatory power of State. To substantiate his submission, the
learned Senior Counsel has extensively referred to the various paragraphs from
the judgment of the Constitution Bench in T.M.A. PAI FOUNDATION'S case (6 supra)
as well as the later decision of the seven-Judge Bench in P.A. INAMDAR'S case
(1 supra). The learned counsel has also referred to the observations in MODERN
DENTAL COLLEGE AND RESEARCH CENTRE v. STATE OF M.P.7.
It is further submitted by Sri L. Nageswara Rao that any regulatory measure can
be imposed by the State only when the management fails to adhere to the triple
test of fairness, transparency and non-exploitativeness mentioned in P.A.
INAMDAR'S case (1 supra).
Pointing out that the respondents have not shown any situation where a
management of educational institution violated the existing rules and action
taken upon such derogation, it is urged by Sri L. Nageswara Rao that the
assertion of the respondents that the managements have failed to comply with the
rule of merit is without any basis and such unilateral assertion cannot be
accepted. The learned Senior Counsel has also submitted that in spite of the
power conferred under the rules issued under G.O.Ms.No.74 & G.O.Ms.No.75 dated
28.07.2011 to penalize institutions which do not make admissions in the
stipulated procedure, the State has not even penalized a single institution till
now which itself shows that the existing rules in G.O.Ms.No.74 and G.O.Ms.No.75
are adequate.
It is further contended by Sri L.Nageswara Rao that it is impossible to
implement the procedure prescribed in the impugned rule for the current academic
year in view of the time schedule fixed in PARSHVANATH CHARITABLE TRUST'S case
(5 supra) according to which the admission should be completed by 30th July and
consequently several seats in educational institutions will go vacant thus
causing irreparable loss and damage not only for the institutions but also for
the students.
Sri D.Prakash Reddy, the learned Senior Counsel appearing for the
petitioners in the writ petitions filed by minority institutions, at the outset
referred to ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI8, wherein it was held
that the minorities whether based on religion or language have the right to
establish and administer educational institutions of their choice under Article
30 (1) of the Constitution of India and that the State being the controlling
authority has right and duty to regulate all academic matters. It is pointed
out by the learned Senior Counsel that the view expressed in ST. STEPHEN'S
COLLEGE'S case (8 supra) is affirmed by the eleven-Judge
Constitution Bench in T.M.A. PAI FOUNDATION'S case (6 supra).
Sri D.Prakash Reddy, the learned Senior Counsel further submitted that
surrendering the total process of selection to the State is unreasonable and the
same was disapproved in T.M.A. PAI FOUNDATION'S case (6 supra). According to the
learned Senior Counsel, the real purpose sought to be achieved by Article 30 of
the Constitution of India is to give minorities some additional protection and
therefore even when students are required to be selected on the basis of merit,
the ultimate decision to grant admission to the students who are otherwise
qualified for grant of admission must be left with the educational institution
concerned.
Sri S.Niranjan Reddy and Sri S.Sriram, the learned Counsel appearing for the
petitioners have also made their submissions on the same lines.
Sri A. Sudershan Reddy, the learned Advocate General appearing on behalf
of the respondents submitted that the amendment to Rule 6(ii) by the impugned
G.O.Ms.No.66 & G.O.Ms.No.67 dated 03.09.2012 is in fact made to comply with the
dicta laid down by the Supreme Court in T.M.A. PAI FOUNDATION'S case (6 supra),
P.A. INAMDAR'S case (1 supra) and M. RATIN'S case (2 supra) and to ensure and
enable the eligible meritorious candidates to have a reasonable and transparent
approach for admission under Category-B seats. It is contended by the learned
Advocate General that the impugned rules are permissive regulations as held by
the Apex Court as well as this Court in various decisions and they cannot be
held to be unreasonable restrictions on the right of the petitioners. In support
of his submission, the learned Advocate General relied upon N.K. BAJPAI v. UNION
OF INDIA9.
Point for consideration:
In the light of the rival submissions noticed above, the only question that
arises for consideration is whether the admission process provided under Rule 6
(ii) as amended by G.O.Ms.Nos.66 and 67, dated 3.9.2012 amounts to imposing
unreasonable restrictions on the right of the petitioners to establish and
administer unaided educational institutions so as to declare the same
unconstitutional.
Consideration of the rival submissions:
Before proceeding further, it may be reiterated that the impugned Rule 6 (ii)
deals with the admission to Category-B seats only i.e., 30% of the total intake
of the seats to be filled by the unaided institutions (both non-minority and
minority).
The question whether there can be Government regulations in case of private
institutions (unaided and aided) and if so to what extent, was one of the issues
that fell for consideration by the eleven-Judge Constitution Bench of the Apex
Court in T.M.A. PAI FOUNDATION'S case (6 supra).
The Apex Court through the majority opinion held that the right to establish and
administer private unaided non-minority educational institutions broadly
comprises the right to admit students and to set up a reasonable fee structure,
the other rights being to constitute a governing body; to appoint staff; and to
take action if there is dereliction of duty on the part of any employee.
In para-54 of the judgment it is explained:
"The right to establish an educational institution can be regulated; but such
regulatory measures must, in general, be to ensure the maintenance of proper
academic standards, atmosphere and infrastructure (including qualified staff)
and the prevention of maladministration by those in charge of management. The
fixing of a rigid fee structure, dictating the formation and composition of a
governing body, compulsory nomination of teachers and staff for appointment or
nominating students for admissions would be unacceptable restrictions."
In para-58 of the judgment, while making it clear that the merit must play an
important role for admission, it is observed:
"For admission into any professional institution, merit must play an important
role. While it may not be normally possible to judge the merit of the applicant
who seeks admission into a school, while seeking admission to a professional
institution and to become a competent professional, it is necessary that
meritorious candidates are not unfairly treated or put at a disadvantage by
preferences shown to less meritorious but more influential applicants.
Excellence in professional education would require that greater emphasis be laid
on the merit of a student seeking admission. Appropriate regulations for this
purpose may be made keeping in view the other observations made in this judgment
in the context of admissions to unaided institutions."
So far as the regulations that can be framed relating to private unaided
professional institutions are concerned, it is held in para-68:
"It would be unfair to apply the same rules and regulations regulating admission
to both aided and unaided professional institutions. It must be borne in mind
that unaided professional institutions are entitled to autonomy in their
administration while, at the same time, they do not forego or discard the
principle of merit. It would, therefore, be permissible for the university or
the Government, at the time of granting recognition, to require a private
unaided institution to provide for merit-based selection while, at the same
time, giving the management sufficient discretion in admitting students. This
can be done through various methods. For instance, a certain percentage of the
seats can be reserved for admission by the management out of those students who
have passed the common entrance test held by itself or by the State/university
and have applied to the college concerned for admission, while the rest of the
seats may be filled up on the basis of counselling by the State agency. This
will incidentally take care of poorer and backward sections of the society. The
prescription of percentage for this purpose has to be done by the Government
according to the local needs and different percentages can be fixed for minority
unaided and non-minority unaided and professional colleges. The same principles
may be applied to other non-professional but unaided educational institutions
viz. graduation and postgraduation non-professional colleges or institutes."
With regard to rights of minority institutions to administer educational
institutions, it is held in paras 137 to 139:
"It follows from the aforesaid decisions that even though the words of
Article 30(1) are unqualified, this Court has held that at least certain other
laws of the land pertaining to health, morality and standards of education
apply. The right under Article 30(1) has, therefore, not been held to be
absolute or above other provisions of the law, and we reiterate the same. By the
same analogy, there is no reason why regulations or conditions concerning,
generally, the welfare of students and teachers should not be made applicable in
order to provide a proper academic atmosphere, as such provisions do not in any
way interfere with the right of administration or management under Article
30(1).
As we look at it, Article 30(1) is a sort of guarantee or assurance to the
linguistic and religious minority institutions of their right to establish and
administer educational institutions of their choice. Secularism and equality
being two of the basic features of the Constitution, Article 30(1) ensures
protection to the linguistic and religious minorities, thereby preserving the
secularism of the country. Furthermore, the principles of equality must
necessarily apply to the enjoyment of such rights. No law can be framed that
will discriminate against such minorities with regard to the establishment and
administration of educational institutions vis--vis other educational
institutions. Any law or rule or regulation that would put the educational
institutions run by the minorities at a disadvantage when compared to the
institutions run by the others will have to be struck down. At the same time,
there also cannot be any reverse discrimination. It was observed in St. Xavier's
College case [(1975) 1 SCR 173] at SCR p. 192 that : (SCC p. 743, para 9)
"The whole object of conferring the right on minorities under Article 30 is to
ensure that there will be equality between the majority and the minority. If the
minorities do not have such special protection they will be denied equality."
In other words, the essence of Article 30(1) is to ensure equal treatment
between the majority and the minority institutions. No one type or category of
institution should be disfavoured or, for that matter, receive more favourable
treatment than another. Laws of the land, including rules and regulations, must
apply equally to the majority institutions as well as to the minority
institutions. The minority institutions must be allowed to do what the non-
minority institutions are permitted to do.
Like any other private unaided institutions, similar unaided educational
institutions administered by linguistic or religious minorities are assured
maximum autonomy in relation thereto; e.g. method of recruitment of teachers,
charging of fees and admission of students. They will have to comply with the
conditions of recognition, which cannot be such as to whittle down the right
under Article 30."
Thus it is clear that the only difference between the right of minorities
under Article 30 and the right of non-minorities under Article 19(1)(g) of the
Constitution of India in the matter of establishing and administering
educational institutions of their choice is only that the minority institutions
can admit students belonging to the minority group while non-minority
institutions do not have the right to admit students of any particular group to
the exclusion of others. In all other respects the position of unaided private
educational institutions established and administered by both minorities and
non-minorities is the same.
The ratio decedendi of T.M.A. PAI FOUNDATION'S case (6 supra) with
regard to the admission procedure of unaided educational institutions, both
minority and non-minority has been culled out by the seven-Judge Bench in P.A.
INAMDAR'S case (1 supra) as under:
137. Pai Foundation has held that minority unaided institutions can legitimately
claim unfettered fundamental right to choose the students to be allowed
admission and the procedure therefor subject to its being fair, transparent and
non-exploitative. The same principle applies to non-minority unaided
institutions. There may be a single institution imparting a particular type of
education which is not being imparted by any other institution and having its
own admission procedure fulfilling the test of being fair, transparent and non-
exploitative. All institutions imparting same or similar professional education
can join together for holding a common entrance test satisfying the abovesaid
triple tests. The State can also provide a procedure of holding a common
entrance test in the interest of securing fair and merit-based admissions and
preventing maladministration. The admission procedure so adopted by a private
institution or group of institutions, if it fails to satisfy all or any of the
triple tests, indicated hereinabove, can be taken over by the State substituting
its own procedure. The second question is answered accordingly.
138. It needs to be specifically stated that having regard to the larger
interest and welfare of the student community to promote merit, achieve
excellence and curb malpractices, it would be permissible to regulate admissions
by providing a centralised and single-window procedure. Such a procedure, to a
large extent, can secure grant of merit-based admissions on a transparent basis.
Till regulations are framed, the Admission Committees can oversee admissions so
as to ensure that merit is not the casualty.
In the light of the ratio laid down in T.M.A. PAI FOUNDATION'S case (6 supra) as
explained in P.A. INAMDAR'S case (1 supra) there can be no dispute that so far
as the admissions to 30% seats under Category-B are concerned, unaided
professional institutions have a right to admit students of their choice.
However regulation of admission process by the State by imposing reasonable
restrictions is permissible to ensure admission of eligible candidates on the
basis of merit satisfying the triple test of being fair, transparent and non-
exploitative.
It is the specific case of the petitioners before us that they have been
making the admissions against the 30% seats under Category-B strictly on the
basis of merit and that the admissions made by them to Category-B seats have
been in compliance with the triple test of being fair, transparent and non-
exploitative. According to them Rule 6(ii) as it stood prior to impugned
amendment had given ample power to the State to regulate the admission process
and to ensure fairness and transparency, particularly to ensure that the
admissions are on merit basis. It is alleged that the procedure sought to be
introduced by the amended Rule 6(ii) has virtually taken away the autonomy of
the unaided institutions in the matter of selection of candidates for admission
under the guise of ensuring fairness, transparency and non-exploitativeness in
the admission process. The restrictions imposed by the amended Rule 6(ii)
according to the petitioners are unreasonable restrictions infringing their
fundamental right guaranteed under Article 19 (1) (g) of the Constitution of
India.
We may at the outset mention that in determining the question of
reasonableness, the Courts have to take into account the nature of the right
alleged to have been infringed, the underlying purpose of the restriction
imposed, the extent and urgency of the evil sought to be remedied by the law,
the disproportion of the imposition and the prevailing conditions at the time.
It is also necessary to view the tests of reasonableness in the context of the
issues which faced the legislature. In the construction of such laws and in
judging their validity, Courts must approach the problem from the point of view
of furthering the social interest which is the purpose of the legislature to
promote [see State of Madras v. V.G.Row (AIR 1952 SC 196), Virendra v. The State
of Punjab & another (AIR 1957 SC 896), Jyoti Pershad v. UT of Delhi (AIR 1961 SC
1602) and Municipal Corporation of the City of Ahmedabad v. Jan Mohammed
Usmanbhai (1986) 3 SCC 20 ]
While reiterating the above noticed settled principles of law it is
further explained in a recent decision in N.K.BAJPAI'S case (9 supra) as
under:
16. No person can be divested of his fundamental rights. They are incapable of
being taken away or abridged. All that the State can do, by exercise of its
legislative power, is to regulate these rights by imposition of reasonable
restrictions on them. Upon an analysis of the law, the following tests emerge:
(a) The restriction can be imposed only by or under the authority of law. It
cannot be imposed by exercise of executive power without any law to back it up.
(b) Each restriction must be reasonable.
(c) A restriction must be related to the purpose mentioned in Article 19(2).
17. The questions before us, thus, are whether the restriction imposed was
reasonable and whether the purported purpose of the same squarely fell within
the relevant clauses discussed above. The legislative determination of what
restriction to impose on a freedom is final and conclusive, as it is not open to
judicial review. The judgments of this Court have been consistent in taking the
view that it is difficult to define or explain the word "reasonable" with any
precision. It will always be dependent on the facts of a given case with
reference to the law which has been enacted to create a restriction on the
right. It is neither possible nor advisable to state any abstract standard or
general pattern of reasonableness as applicable uniformly to all cases.
18. A common thread runs through Parts III, IV and IV-A of the Constitution of
India. One Part enumerates the fundamental rights, the second declares the
fundamental principles of governance and the third lays down the fundamental
duties of the citizens. While interpreting any of these provisions, it shall
always be advisable to examine the scope and impact of such interpretation on
all the three constitutional aspects emerging from these Parts.
20. As difficult as it is to anticipate the right to any freedom or liberty
without any reasonable restriction, equally difficult is it to imagine the
existence of a right not coupled with a duty. The duty may be a direct or
indirect consequence of a fair assertion of the right. Although Part III of the
Constitution of India confers rights, still the duties and restrictions are
inherent thereunder. These rights are basic in nature and are recognised and
guaranteed as natural rights, inherent in the status of a citizen of a free
country, but are not absolute in nature and uncontrolled in operation. Each one
of these rights is to be controlled, curtailed and regulated, to a certain
extent, by laws made by Parliament or the State Legislature. In spite of there
being a general presumption in favour of the constitutionality of a legislation
under challenge in case of allegations of violation of the right to freedom
guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie
case of such violation being made out, the onus shifts upon the State to show
that the legislation comes within the permissible restrictions set out in
clauses (2) to (6) of Article 19 and that the particular restriction is
reasonable. It is for the State to place appropriate material justifying the
restriction and its reasonability on record.
In the light of the legal position noticed above we shall now proceed to
examine whether the admission procedure provided under the impugned rule 6(ii)
would amount to imposing unreasonable restrictions on the right of the
petitioners recognized in T.M.A. PAI FOUNDATION'S case (6 supra) and P.A.
INAMDAR'S case (1 supra) to establish and administer unaided educational
institutions.
For proper appreciation of the said question it is necessary to notice
Rule 6(ii) as it stood prior to amendment by G.O.Ms.No.66 and G.O.Ms.No.67 dated
03.09.2012 and thereafter.
Rule 6(ii) as it stood prior to amendment reads as under:-
6 (ii) To fill up Category-B Seats (30%)
1. The institution shall conduct Admissions to the seats available as specified
below:
(i) The Institution shall not issue notification and receive the applications
until the EAMCET admission notification is issued by the concerned.
(ii) The NRI seats (not exceeding 15% of the sanctioned intake in each course)
shall be filled on merit basis with NRI / NRI sponsored candidates who have
passed the qualifying examination with not less than 50% of in the prescribed
group subjects or Cumulative Grade Point Average (CGPA) equivalent to 5 on a
scale of 10.
(iii) The remaining seats shall be filled on merit basis with candidates
belonging to other States and Union territories who have secured rank at AIEEE
and secured not less than 50% of aggregate marks in the qualifying examination.
(iv) The seats remaining unfilled from (ii) and (iii) above shall be filled with
eligible candidates on merit basis following eligibility criteria laid in rule
(4) of these rules.
(v) There after, if any seats still remain unfilled such seats may be filled on
merit basis with candidates securing not less than 50% in the prescribed group
subjects taken together in the qualification examination.
2. The Institution shall follow the procedure mentioned below to conduct the
Admissions:
(i) The Managements of the Colleges shall notify the details of courses offered
with intakes, schedule of admissions, cost of Application form and Minority/Non
Minority, statues in popular news dailies one in each language i.e. English,
Telugu & Urdu which is to be displayed on the College website and also on the
college notice board.
(ii) The blank application forms for admission in 'B' category seats shall be
made available to the candidates from the college counter on payment of the
prescribed fee. The facility for downloading the form of application from the
college website should also be provided. In this case, the cost of procuring
the application from shall be paid to the college by the applicant at the time
of submission of the duly filled in application forms.
(iii) The college authorities shall enter the day wise sale of applications with
the name of the candidates and address in a Register opened for the purpose and
it shall be made available for inspection for any Officer authorized by the
Competent Authority.
(iv) The college shall issue an acknowledgment / receipt for the applications
received.
(v) The Management shall prepare the merit list of eligible applicants for each
course and announce the same by displaying both on the website and notice board
of the college for at least two weeks from the date of announcement.
(vi) The Institution shall obtain ratification from the Competent Authority for
all the admissions conducted under Category B seats by the institution.
(vii) The Management shall collect the Tuition fees as prescribed by AFRC for
category 'B' seats.
(viii) The Management shall comply with the above instructions and failure in
implementing the same shall entail to withdrawal of Government permission,
University affiliation and AICTE approval.
3. After scrutiny, the Competent Authority shall send the ratified list of
admitted candidates from outside the State, NRIs and others admitted by the
Institution to the University concerned and also to the respective Institutions.
After the amendment by G.O.Ms.No.66 and G.O.Ms.No.67 dated 03.09.2012,
Rule 6(ii) reads as under:-
6 (ii) To fill up Category-B Seats (30%)
1. The Institution shall conduct Admissions to the seats available as specified
below:
(i) The Institution shall not issue notification and receive the applications
until the EAMCET admission notification is issued by the Competent Authority.
In the interests of students, the Competent Authority may suggest dates for
different milestones in the admission process.
(ii) The institutions that are approved by All India Council for Technical
Education and permitted to fill NRI seats not exceeding 5% of the sanctioned
intake in each course for the academic year shall admit NRI candidates (sons and
daughters of NRIs) who have passed the qualifying examination with not less than
50% marks in the prescribed group subjects or 50% aggregate marks in the
qualifying examination or Cumulative Grade Point Average (CGPA) equivalent to 5
on a scale of 10.
(iii) The remaining seats shall be filled on merit basis with candidates
including from other States and Union territories who have secured rank at AIEEE
and secured not less than 45% of marks in the prescribed group subjects in the
qualifying examination.
(iv) The seats remaining unfilled from (ii) and (iii) above shall be filled with
eligible candidates, who have qualified the EAMCET examination on merit basis
following eligibility criteria laid in rule (4) of these rules.
(v) Thereafter, if any seats still remain unfilled such seats may be filled on
merit basis with candidates securing not less than 45% (40% in case of
candidates belonging to reserved categories) of marks in the prescribed group
subjects taken together / aggregate marks in the qualifying examinations, as
prescribed.
2. The Institutions shall follow the procedure mentioned below to conduct
the Admissions:
(i) The Competent Authority shall facilitate the setting up of a web portal
which will act as a "Single Window for Category 'B' seats" for both the Colleges
and the Students for filling up of the "Category B" seats.
(ii) Each college will be provided a Unique ID and password to port its data
relating to the category 'B' seats in the said portal.
(iii) Subsequently, all colleges will be provided with a digital signature to
ensure secure access of their operations.
(iv) The colleges shall port all the relevant data regarding the Category "B"
seats, branch wise as provided in the said web portal.
(v) Once the data is finally entered by the managements no change shall be
permitted.
(vi) The web portal shall provide the students, the facility for making online
applications for the Category "B" seats. A printable/recordable electronic
acknowledgment shall be provided to the student on successful uploading of his
online application. This will dispense with the need for the student to
physically visit each and every college besides ushering in transparency.
(vii) The management of the Colleges shall notify the details of courses offered
with intakes, schedule of admissions (date wise), registration fee for the
application, minority or non-minority status in leading news dailies one in each
language i.e. English, Telugu & Urdu & which will also be uploaded on the web
portal hosted by the Competent Authority.
(viii) The Competent Authority will suggest a time schedule with dates for such
notification to enable the students to opt for category 'B' seats uniformly
across the state. All admissions to the category 'B' seats will be completed
during the suggested time period.
(ix) On the dates as suggested by the Competent Authority, the web portal will
be opened for all students desirous of seeking admissions to Category 'B' seats
in all Private Un-Aided Professional colleges in the State. Candidates can
apply to colleges of their choice by visiting the portal only during the
suggested dates by the Competent Authority.
(x) A candidate can select any of the college/colleges and apply online for
seeking admissions to Category 'B' seats of college/colleges after paying the
requisite registration fees as notified by the college.
(xi) The candidate can also give his order of preference for admission to a
college by giving the order of preference among the courses offered by the
college in the online application form. Only one form needs to be filled for a
college regardless of the number of options.
(xii) The candidate can apply for more than one college by visiting the
respective website of colleges and apply online after paying the registration
fees specified for each college.
(xiii) No new application will be accepted after the closing date of admissions
to the college.
(xiv) The Management of the college will solely upload the data and administer
the selection process as per the admission procedure specified. Each college
will be permitted to download the data of the applications received and
pertaining to it, after the closing date as suggested by the Competent
Authority.
(xv) Thereafter, the college can at its option use the online merit generation
facility available on the web portal. The merit list generated will be in order
of NRI quota (if available), AIEEE rankers, EAMCET rankers & qualifying
examination in order of merit as prescribed in Rule 6(ii)(I) of these rules.
(xvi) The selection of candidates will be done by the college managements
themselves, as per the merit of the candidates.
(xvii) The selection list, after selection process is completed by the
management of respective colleges as per the prescribed norms will be uploaded
by the managements on the web portal and be transmitted online to the Competent
Authority.
(xviii) The Competent Authority will verify the list of the selected candidates
and validate the same with reference to the G.O.s and the procedure prescribed
through an online cross verification procedure based on applications received by
a college.
(xix) The Competent Authority shall approve the validated list if found tallying
by the cross validation process or reject the lists if found to be at variance
to the rules and procedures prescribed, and communicate the same to the
concerned colleges for compliance.
(xx) In case of unfilled seats if any, the concerned colleges will again upload
for validation the second list of selected candidates from out of the left over
candidates who have applied in the portal. After generation of the merit list,
the college managements will forward the applications and approval by Competent
Authority as per the schedule prescribed by the Competent Authority.
(xxi) Applications of candidates not fulfilling the required conditions during
the online cross validation of the list by the Competent Authority will
summarily be rejected.
(xxii) The Competent Authority shall open a helpline to assist the candidates
and college managements to sort out their grievances and provide technical
support if needed.
(xxiii) The Competent Authority will issue detailed operational guidelines for
using the web portal besides prescribing a fee for usage of the portal by the
managements of colleges and applicants.
(xxiv) The Management shall collect the Tuition fee as prescribed by the
Government for category 'B' seats and any excess fee collected will amount to
capitation fee and Managements are liable for action under A.P. Educational
Institutions (Regulation of Admissions and Prohibition of Capitation fee) Act,
1983.
(xxv) Any complaint/appeal against the selection shall be made to the Admission
and Fee Regulatory Committee (AFRC).
(xxvi) The managements shall comply with the above instructions and failure in
implementing the same shall entail actions as per the relevant Acts and Rules in
force.
A perusal of the above extracted provisions would show that as per Rule
6(ii) as it stood prior to the amendment though the institutions were required
to display the details of the courses offered and other details on the college
website and the facility for downloading the application forms was also provided
to the candidates, submission of the duly filled-in applications should be done
only in person by the candidates at the respective institutions. Thereafter,
the selection would be made by the management and the merit list of the eligible
applicants for each course would be announced by displaying on the website and
also on the notice-board of the college. The further requirement was that all
the admissions under Category-B should be ratified by the competent authority.
However, under the amended Rule 6(ii) the entire selection process to the
Category-B seats shall be completed online through the common web portal set up
by the competent authority. It is also relevant to note that a candidate
can select any of the college/colleges and can also give their order of
preference for admission to a college as well as the courses offered by the
college in the online application form. The candidate is also given option to
apply for more than one college by visiting the respective website of college.
Though the Rule provides that the selections will be made by the managements
themselves, the selection list has to be uploaded on the web portal and it shall
be transmitted online to the competent authority for validation and approval.
For better appreciation, the procedure prescribed under the amended Rule
is explained hereunder:
All the institutions have to port their data regarding Category-B seats branch-
wise as provided in the said web portal using the unique ID and password
provided by the competent authority. The institutions shall also notify the
details of the courses offered with intakes, schedule of admissions,
registration fee for the application, minority or non-minority status in leading
news dailies one in each language i.e., English, Telugu and Urdu and the same
will also be uploaded on the web portal hosted by the competent authority. The
time schedule with dates for such notification will be suggested by the
competent authority to enable the students to opt for Category-B seats uniformly
across the State and all admissions will be completed during the time period so
fixed. On the dates as suggested by the competent authority the web portal will
be opened for all students desirous of seeking admission to Category-B seats and
the candidates can apply to colleges of their choice by visiting the portal
during the suggested dates by the competent authority. The management of the
college will be permitted to download the data of the applications received and
pertaining to it after the closing date as suggested by the competent authority.
Thereafter the college can at its option use the online merit generating
facility available on the web portal and the selection of candidates shall be as
per the merit of the candidates. After selection process is completed the
management has to upload the selection list on the web portal and it shall be
transmitted online to the competent authority. On verification of the list of
the selected candidates the competent authority will validate the same through
an online cross verification procedure based on applications received by a
college. The competent authority shall approve the validated list if it is
found tallying by the cross validation process. The list shall be rejected by
the competent authority if it is found to be at variance with the rules and
procedures prescribed and communicate the same to the concerned colleges for
compliance. In case of unfilled seats if any the concerned colleges will again
upload for validation of the second list of selected candidates from and out of
the leftover candidates who have applied in the portal. After generation of the
merit list the college management will forward the applications for approval by
competent authority as per the schedule prescribed by the competent authority.
According to the learned Advocate General, there is no interference by the State
either with the finance, administration or right to admission of the petitioner
institutions. Thus, it is contended that the amended Rule which is aimed at
regulating the admission process by promoting merit and achieving excellence in
the larger interest and welfare of the student community is permissible as held
in P.A. INAMDAR'S case (1 supra).
Apparently, the submission of the learned Advocate General is based upon the
following observations made in para-138 of
P.A. INAMDAR'S case (1 supra).
Para-138. It needs to be specifically stated that having regard to the
larger interest and welfare of the student community to promote merit, achieve
excellence and curb malpractices, it would be permissible to regulate admissions
by providing a centralised and single-window procedure. Such a procedure, to a
large extent, can secure grant of merit-based admissions on a transparent basis.
Till regulations are framed, the Admission Committees can oversee admissions so
as to ensure that merit is not the casualty.
It is relevant to note that the petitioners are also relying upon the very
same observations made in P.A. INAMDAR'S case (1 supra) and it is
their submission that para-138 shall be read in conjunction with para-137.
Thus, according to the petitioners though it is always open to the State to
regulate the admission process, such regulation is permissible only where the
institutions failed to satisfy the triple test of being fair, transparent and
non-exploitative.
Having given our thoughtful consideration to the rival submissions and
having carefully gone through the amended Rule 6 (ii), we are unable to accept
the contention of the petitioners that the procedure prescribed under the
amended Rule 6 (ii) has taken away the choice of the petitioner institutions in
the selection process.
Clause (xvi) of the amended Rule 6 (ii) specifically provides that the selection
of candidates will be done by the college management themselves as per the merit
of the candidates. Even according to the law laid down in T.M.A. PAI
FOUNDATION'S case (6 supra) the admissions should be merit based and the
admission process should be fair, transparent and non-exploitative.
The petitioners do not dispute the legal position and it is reiterated by the
petitioner institutions that they have never deviated from the requirement of
merit while making the admissions into Category-B seats.
The preamble to the impugned G.O.Ms.Nos.66 and 67, dated 03.09.2012 shows that
the main object of introducing the admission process through "common web portal"
set up by the competent authority is to oversee admissions made by the unaided
institutions and to ensure that the admissions are made strictly on merit basis
satisfying the triple tests of being fair, transparent and non-exploitative.
It is also brought to our notice that this Court in M. RATIN'S case (2 supra)
while considering the grievance of some of the candidates that the
institutions were not following the fair and transparent method as enjoined on
them by the Rules made under the Capitation Fee Act, directed that the
respondents should actively oversee the process of admissions by the unaided
non-minority private managements from the time of commencement of the process
till the approval of the list submitted by the colleges and shall take
appropriate action wherever it finds that the colleges indulged in violation of
the rule either by not following the procedure in the proposed operating
guidelines or by denying seats to students with superior merit and who have duly
applied for seats. The said direction in fact is in tune with the view expressed
by the Apex Court in para-138 of P.A. INAMDAR'S case (1 supra).
Therefore, the petitioners cannot and shall not have any grievance if the State
seeks to regulate the admission process for the purpose of ensuring that the
admissions are strictly on merit basis and that the triple tests of being fair,
transparent and
non-exploitative are satisfied.
It is explained in the counter-affidavit filed on behalf of the A.P. State
Council for Higher Education that about 685 Engineering Colleges and 280
Pharmacy Colleges are existing in the State and as per the admission procedure
prescribed under the unamended Rule 6 (ii) it is practically impossible for the
competent authority to ensure that the admissions are made in a transparent
manner and therefore under the amended Rule 6 (ii) the admissions are sought to
be made through a common web portal set up by the competent authority.
On a careful reading of the amended Rule 6 (ii), we are of the opinion that the
admission procedure prescribed therein is aimed at enabling the competent
authority to oversee the admissions so as to ensure that the admissions are
strictly on merit basis satisfying the triple tests of being fair, transparent
and
non-exploitative.
It may be true that the amended Rule does not contain an express provision
enabling the management to call upon the candidates selected on merit basis to
appear in person so as to establish their credibility and financial capacity for
payment of the tuition fee as prescribed by the Admission and Fee Regulatory
Committee (AFRC) to the satisfaction of the management. Moreover, there appears
to be certain practical difficulties in making the admissions on account of the
option given to the candidates to opt for any number of colleges/courses in the
order of preference which is likely to result in delaying the completion of the
admission process. It may also result in many seats remaining vacant in
Category-B.
As per the settled legal position, the reasonableness of the restrictions
imposed has to be tested in the light of the facts and circumstances of the case
taking into account the nature of the right alleged to have been infringed, the
underlying purpose of the restriction imposed and the extent and urgency of the
evil sought to be remedied by the law.
The Rules under G.O.Ms.No.74 & 75, dated 28.7.2011, are made in exercise of the
powers conferred under the Capitation Fee Act, which itself is aimed at
prohibiting the collection of capitation fee in the State in order to avoid
frustration among the meritorious and indigent students and to maintain
excellence in the standards of education. The specific case of the respondents
is that it has come to the notice of the State Government that a majority of the
managements of the private unaided professional colleges are not following a
fair and transparent procedure to fill up the Category-B seats and there are
also instances where the managements had failed even to supply the application
forms to the eligible meritorious candidates thereby preventing them from
applying for admission and therefore with a view to streamline the admission
process in the interest of students it has been decided to amend the Rule by
providing for making the admissions through common web portal set up by the
competent authority.
Rule 6 sub-rule (2) clause (vi), which provides for availability of application
forms to the eligible candidates and submission thereof after duly being filled
up through Single Window system does not appear to be unreasonable and the
reasonableness can be deduced from the following test. If this clause is
upheld, whether management will at all be prejudiced or will suffer unjustly,
and whether it will benefit the aspirant candidates. In our view, if this
clause is allowed to be operative, it does not affect the right of the
management to choose the eligible candidates by selection. This is a measure
provided for collecting application forms in a systematic way and it really
helps the management to start admission process smoothly. The right of selection
of the candidates by the management has not been touched by this questioned Rule
at all and this will be clear from sub-clause (xvi) under clause (2) of
Rule 6 (ii) which provides for preparation of merit list of the eligible
applicants for each course by management and management alone. On the other
hand, the aforesaid measure will benefit the applicant in a transparent manner
to have an opportunity to collect and submit the application form free from any
harassment or any anxiety and this will also eliminate possibility of making any
complaint or grievance from any corner with regard to distribution and
collection of the application form by the management. In our considered view,
no man of ordinary prudence will think that the aforesaid clause will interfere
with or affect the interest of the management in any manner whatsoever. It
further appears that after the selection process is over by the management, the
same has to be displayed both on the website and notice board of the college for
at least two weeks from the date of announcement. Further it has to be sent
for ratification of the competent authority for all the admissions conducted
under category-B seats by the institution. This has provided a safeguard
measure against any possible manipulation and injustice to any candidate and
also ensures total transparency in the matter of selection and it does not
affect any just right of management.
We think the aforesaid judgment of the Supreme Court is concerned about the
independence of the management as far as the admission of the candidates in
category-B is concerned.
The right of choice, as we have already indicated, has not been touched and the
same has to be done by the management. We fail to see any reason why the
aforesaid measure can be said to be an unreasonable so much so it may be termed
as interfering device to the independent right of the administration to admit
students in
B category seats.
Having regard to the object with which the impugned notifications are issued
substituting Rule 6 (ii), particularly keeping in view the observations made in
para-138 of
P.A. INAMDAR'S case (1 supra) that it would be permissible to regulate
admissions by providing a centralized and single window procedure so as to
secure merit based admissions on a transparent basis, we are of the view that
the amended Rule 6 (ii) can neither be said to have encroached upon the autonomy
of the unaided educational institutions in the matter of admissions to Category-
B seats nor it has imposed unreasonable and unacceptable restrictions on their
right to make admissions into the said seats. Hence there is no infringement of
the rights of the petitioners guaranteed under Article 19 (1) (g) or Article 30
of the Constitution of India.
In view of the above conclusion reached by us, we are unable to accept further
contention of the petitioners that the procedure prescribed under the amended
Rule amounts to unilateral imposition of seat sharing pattern even in respect of
30% seats under Category-B which was held to be unconstitutional in
P.A. INAMDAR'S case (1 supra).
As already expressed above, even under the amended Rule the autonomy of the
petitioner institutions to make admissions into Category-B seats remained
untouched, however the selection process is made transparent to enable the
competent authority to oversee the selection process at every stage right from
the stage of notifying the seats till the admissions are made. It may also be
added that the amended Rule 6 (ii) is only regulatory in nature and does not in
any way restrict or control the rights guaranteed to the petitioners to
administer unaided minority/non-minority educational institutions. Since their
right to admission to Category-B seats is not restricted at all, the contention
that under the guise of the amended Rule the State has unilaterally imposed
'seat sharing' even in respect of Category-B seats is untenable.
However, Rule 6 (ii) sub-rule (1) clause (ii) provides that the reservation of
NRI seats should not exceed 5% of the sanctioned
in-take in the course. The reduction of NRI quota from 15% to 5%, in our view,
is not justified as the same cannot be reduced unilaterally by the Government in
the name of regulatory measure. The aforesaid stipulation, as rightly contended
by the learned Senior Counsels for the petitioners, is in substance contrary to
the decision of the Supreme Court in case of P.A. INAMDAR (supra). In
paragraph-131 of the report, the Supreme Court has clearly mentioned as follows:
"In effect and reality, under this category, less meritorious students, but who
can afford to bring more money, get admission. During the course of hearing, it
was pointed out that a limited number of such seats should be made available as
the money brought by such students admitted against NRI quota enables the
educational institutions to strengthen their level of education and also to
enlarge their educational activities. It was also pointed out that people of
Indian origin, who have migrated to other countries, have a desire to bring back
their children to their own country as they not only get education but also get
reunited with the Indian cultural ethos by virtue of being here. They also wish
the money which they would be spending elsewhere on education of their children
should rather reach their own motherland. A limited reservation of such seats,
not exceeding 15%, in our opinion, may be made available to NRIs depending on
the discretion of the management subject to two conditions. First, such seats
should be utilised bona fide by NRIs only and for their children or wards.
Secondly, within this quota, merit should not be given a complete go-by. The
amount of money, in whatever form collected from such NRIs, should be utilised
for benefiting students such as from economically weaker sections of the
society, whom, on well-defined criteria, the educational institution may admit
on subsidised payment of their fee.
To prevent misutilisation of such quota or any malpractice referable to NRI
quota seats, suitable legislation or regulation needs to be framed."
To our mind, by the above decision discretion is left with management not with
government to reduce quota. In any event, no reason has been assigned why the
aforesaid NRI quota has been reduced to 5%. We think that it has been done
without having any legally entertainable complaint not to speak of enquiry as
regards mala fide utilisation of the funds collected from the NRI candidates or
total regardless of merit. It has to be understood clearly that these unaided
educational institutions are depending upon the tuition fees and the funds made
available by the candidates alone. Therefore, consideration of survival and
sustenance of the educational institution has also to be kept in mind. Further,
undoubtedly the NRI quota is a substantial source of fund. Payment of
commensurate salary to the teaching faculty and staff, providing good
infrastructural facilities including hostel accommodation require a large amount
of fund and the State Government is not coming forward to inject any fund to
support the educational institutions. It requires reasonable degree of leverage
as envisaged by the Supreme Court. This, in our view, presuming for argument
sake the State has say in this regard, should not have been reduced without
proper deliberation and discussion with the educational institutions and without
understanding the difficulty. Accordingly, we hold and declare that the
aforesaid reduction of the seats to 5% from 15% is unjustified and unfounded and
the same is accordingly struck down and we restore the NRI quota to 15%.
For the aforesaid reasons, Rule 6 (ii) as amended by G.O.Ms.Nos.66 and 67, dated
3.9.2012, except the portion reducing percentage of NRI seats to 5% from 15%,
cannot be held to be unconstitutional or contrary to the dicta laid down in
T.M.A. PAI FOUNDATION'S case (6 supra) and P.A. INAMDAR'S case (1 supra).
Hence, the petitioners are not entitled to the relief sought for.
However, we deem it appropriate to issue the following directions for effective
implementation of the amended Rule 6 (ii).
(i) Apart from making the applications online through the common web portal,
the candidates shall be given an option to submit their applications in person
at the college of their choice, however one select list shall be prepared and be
uploaded in the web portal for verification and validation in terms of the Rule.
(ii) The management of the institution shall be given an option to call upon
the selected candidates to appear in person for interview to substantiate their
credibility and financial capacity to the satisfaction of the management.
(iii) In the event of the management finding that any of the selected candidates
is not suitable for admission, the management shall be at liberty to reject the
candidature of such candidates and the reasons should be communicated to the
competent authority.
(iv) So far as the option given to the candidates to opt for any number of
colleges/courses is concerned, the A.P. State Council for Higher Education shall
have a consultation with the petitioner institutions and work out the modalities
so as to prevent multiple blockage of seats and to ensure that the selection
process is completed within a timeframe.
The A.P. State Council for Higher Education shall take expeditious steps for
implementation of the above directions.
All the Writ Petitions are accordingly disposed of. No costs.
____________________________
Kalyan Jyoti Sengupta, CJ
_______________
G. Rohini, J
Dt. 20.08.2013
THE HON'BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND HON'BLE MS.JUSTICE G.ROHINI
WRIT PETITION No. 27777 OF 2012 and batch
20-08-2013
Joseph Sriharsha and Mary Indraja Educational Society (Regn No.662/1996) Plot
No.102,High Court Colony, Vanasthalipuram,Hyderabad Rep. by its Secretary Rev.
KVK Rao and others......... Petitioners
The State of A.P. Rep. by its Principal Secretary to Government, Higher
Education (EC.2) Department, Hyderabad...... Respondents
Counsel for the petitioners: Sri P. Sri Raghuram
Counsel for respondent No.1: G.P. for Higher Education
Counsel for Respondent No.2: Sri C. Sudesh Anand (SC for APSCHE)
<Gist:
>Head Note:
?Cases Referred:
1. (2005) 6 SCC 537
2. 2008 (3) ALD 105 (DB)
3. AIR 1951 SC 118
4. (2001) 2 SCC 386
5. (2013) 3 SCC 385
6. (2002) 8 SCC 481
7. (2009) 7 SCC 751
8. (1992) 1 SCC 558
9. (2012) 4 SCC 653
WRIT PETITION No. 27777, 27898, 27918, 28014, 28023, 28055, 28060, 28073, 28098,
28108, 28116, 28125, 28130, 28134, 28139, 28206, 28249, 28260, 28321, 28356,
28399, 28404, 28409, 28421, 28484, 28485, 28519, 28520, 28531, 28553, 28615,
28626, 28661, 28664, 29035, 29106 and 30705 OF 2012
AND WRIT PETITION Nos.16598 and 16599 OF 2013
COMMON ORDER:
The petitioners in all the writ petitions are the unaided professional
educational institutions, both non-minority and minority. They are aggrieved by
the amendments made to A.P. Unaided Non-Minority Professional Institutions
(Regulation of Admissions into Undergraduate and Pharm-D (Doctor of Pharmacy)
Professional Courses through Common Entrance Test) Rules, 2011 and A.P. Unaided
Minority Professional Institutions (Regulation of Admissions into Undergraduate
and Pharm-D (Doctor of Pharmacy) Professional Courses through Common Entrance
Test) Rules, 2011 by G.O.Ms.Nos.66 and 67, Higher Education (EC.2) Department,
dated 3.9.2012 respectively.
Thus all the writ petitions are filed seeking a declaration that the above said
Rules as amended by G.O.Ms.Nos.66 and 67, Higher Education (EC.2) Department,
dated 3.9.2012, particularly Rule 6(ii) are arbitrary, illegal and
unconstitutional.
Introduction:
Admissions to Engineering Colleges in the State of Andhra Pradesh are
governed by the provisions of A.P. Educational Institutions (Regulation of
Admission and the Prohibition of Capitation Fee) Act, 1983, (for short, 'the
Capitation Fee Act') which empowers the 1st respondent to regulate admissions
into educational institutions. Section 3(1) provides that such admissions shall
be subject to such rules as may be made in this behalf and shall be made either
on the basis of the marks obtained in the qualifying examination or on the basis
of the ranking assigned in the entrance test conducted by such authority and in
such manner as may be prescribed.
In exercise of the powers so conferred, the State Government made the Rules
called A.P. Unaided Non-Minority Professional Institutions (Regulation of
Admissions into Undergraduate and Pharm-D (Doctor of Pharmacy) Professional
Courses through Common Entrance Test) Rules, 2011 vide G.O.Ms.No.74, dated
28.7.2011. Similarly, so far as the minority institutions are concerned, A.P.
Unaided Minority Professional Institutions (Regulation of Admissions into
Undergraduate and Pharm-D (Doctor of Pharmacy) Professional Courses through
Common Entrance Test) Rules, 2011 are made vide G.O.Ms.No.75, dated 28.7.2011.
Under the above said Rules made by G.O.Ms.Nos.74 and 75, dated 28.7.2011,
the provisions of which are almost identical, the Chairman, A.P. State Council
for Higher Education is constituted as the competent authority and under Rule 3
of the Rules, the seats to be allotted in each Unaided Non-Minority Professional
Institution as well as Private Unaided Minority Professional Institution are
categorized into two sections namely Category-A seats and Category-B seats.
Rule 3 (ii) made it clear that the Category-A seats shall be 70% of sanctioned
intake of seats in each course in Unaided Non-minority Professional Institution
which shall be filled with the eligible candidates on the basis of rank obtained
at the Common Entrance Test following the procedure of admissions under Rule 6
(i). So far as Category-B seats are concerned, it is provided that the same
shall be 30% of the total intake of seats in each course in respect of Unaided
Non-minority Professional Institutions which shall be open for admission to all
the eligible candidates on merit basis following the procedure of admissions
under Rule 6 (ii).
Rule 5 (i) of the Rules provided for the method of admission of
candidates, according to which all Category-A seats shall be allotted by the
Convenor of EAMCET admission and all Category-B seats shall be filled in by the
respective institutions as per the procedure laid down in Rule 6 (ii).
Rule 6 (i) provides for admissions into Category-A seats and Rule 6 (ii)
provides for admissions into Category-B seats.
The procedure prescribed by Rule 6(ii) both under G.O.Ms.No.74 and
G.O.Ms.No.75, dated 28.7.2011 with regard to admissions to Category-B seats by
the institutions themselves, included notifying the details of the courses
offered in daily newspapers and also displaying the same on college website and
notice-board. Institutions are required to provide a facility for downloading
the application forms from the college website and the college authorities shall
maintain a register containing the particulars of day-wise sale of applications
and it shall be made available for inspection for any officer authorized by the
competent authority. The institutions are also required to prepare a merit list
of eligible applicants for each course and display the same on the website and
also notice board of the college and thereafter obtain ratification from the
competent authority for all the admissions conducted by them under Category-B
seats.
While so, the impugned notifications namely G.O.Ms.No.66 and G.O.Ms.No.67, dated
3.9.2012 came to be issued amending the Rules made under G.O.Ms.No.74, dated
28.7.2011 and G.O.Ms.No.75, dated 28.7.2011, particularly substituting Rule
6 (ii) to the effect that the selection for admission to Category-B seats shall
be conducted through a common web portal set up by the Chairman, A.P. State
Council for Higher Education.
When the said substituted Rule 6 (ii) was sought to be applied to the admission
process for the academic year 2012-13, a batch of writ petitions came to be
filed by various unaided professional Institutions challenging the vires of the
said Rules and applicability of G.O.Ms.No.66 and G.O.Ms.No.67, dated 3.9.2012
contending inter alia that the said substituted Rule cannot be applied for the
academic year 2012-13 since the admission process has already commenced.
Having regard to the admitted fact that the admissions have already taken place
in the petitioner colleges in terms of Rule 6 (ii) as it stood prior to
amendment vide G.O.Ms.No.66 & G.O.Ms.No.67, dated 3.9.2012, this Court passed an
interim order dated 11.9.2012 directing that no effect should be given in
respect of G.O.Ms.No.66 & G.O.Ms.No.67, dated 3.9.2012 for the academic session
2012-13 since the amended Rules cannot be given effect to retrospectively.
Since the said order of stay of enforcement of the substituted Rule 6(ii) was
restricted only to the academic year 2012-13, the respondents insisted that the
admissions into Category-B seats for the academic year 2013-14 should be in
compliance with the procedure prescribed under the substituted Rule 6(ii). Under
the circumstances, a fresh batch of writ petitions came to be filed by several
other unaided professional institutions, both non-minority and minority seeking
a similar declaration that G.O.Ms.No.66 & 67, dated 3.9.2012 are arbitrary,
illegal and unconstitutional.
On 13.6.2013 this court passed an interim order directing that the impugned
notifications shall not be given effect to until further orders.
The respondents filed a detailed counter-affidavit and sought to vacate the
interim order dated 13.6.2013. When the said vacate petitions are listed before
us, with the consent of both the parties we have taken up the main writ
petitions for hearing along with the writ petitions that were filed during the
academic year 2012-2013.
Contentions:
The vires of the amended Rule 6 (ii) by G.O.Ms.No.66 and G.O.Ms.No.67 dated
03.09.2012, is questioned in the writ petitions primarily on the ground that the
amended rule which imposed unreasonable restrictions on the right of the unaided
non-minority as well as minority professional institutions to make admissions to
the Category-B seats is violative of Article 19 (6) of the Constitution of
India. It is also contended that the admission procedure prescribed under the
amended Rule 6(ii) for Category-B seats is in clear violation of the dicta laid
down by the Hon'ble Supreme Court of India in P.A. INAMDAR v. STATE OF
MAHARASHTRA1. The further contention is that the procedure is unworkable since
the candidates are given option to choose any number of colleges/ subjects which
would invariably result in multiple blockage of seats making the admission
process endless.
In the counter-affidavit filed on behalf of the respondents, it is contended
that the procedure prescribed in the substituted Rule 6 (ii) has only provided a
fair, transparent and a non-exploitative procedure thereby facilitating merit
based admissions to be made under Category-B quota in the petitioner colleges.
Denying the allegation that the substituted Rule 6 (ii) is in clear violation of
the dicta laid down in P.A. INAMDAR'S case (1 supra), it is contended that the
procedure prescribed in the impugned rule is a permissive regulation in public
interest. It is further contended that the procedure prescribed in the existing
rules under G.O.Ms.No.74 and 75 being totally inadequate to oversee the
admissions into Category-B seats into huge number of colleges numbering 685
Engineering Colleges and 280 Pharmacy Colleges in the State of A.P. and it is
practically impossible for the competent authority to ensure that the Category-B
admissions are made in a transparent manner by the respective colleges,
G.O.Ms.Nos.66 and 67, dated 3.9.2012 have been issued to facilitate admission
through a common web portal. This is in accordance with the directions issued
by the Division Bench of this Court in M. RATIN AND ANOTHER v. GOVERNMENT OF
ANDHRA PRADESH2. Thus it is contended that the impugned rule which is the most
effective permissive piece of legislation made in public interest and the
student community at large cannot be held to be arbitrary, illegal or
unconstitutional.
Submissions made by the Counsel for the parties:
Leading the arguments on behalf of the petitioners, Sri P.P. Rao, the
learned Senior Counsel submitted that the restrictions imposed by the impugned
Rule 6 (ii) on the right conferred by Article 19 (1) (g) to establish and
administer educational institutions by citizens are unreasonable, wholly
unjustified and violative of Articles 19 (1) (6) of the Constitution of India.
In support of his submission, the learned Senior Counsel relied upon
CHINTAMANRAO v. STATE OF M.P.3 and OM KUMAR v. UNION OF INDIA4.
It is also submitted by the learned Senior Counsel that the very object of
categorization of seats into A and B categories is defeated by the impugned rule
since nothing is left for selection by the management if the impugned rule is
enforced.
Placing reliance upon PARSHVANATH CHARITABLE TRUST v. ALL INDIA COUNCIL FOR
TECHNICAL EDUCATION5 wherein the Supreme Court prescribed time schedule for
admission into the colleges, Sri P.P. Rao further submitted that in view of the
unlimited multiple options given to the candidates under the impugned rule to
choose any college and any subject therein, it is impossible to complete the
selection process within the time schedule and therefore the impugned rule which
is unworkable is arbitrary and wholly unjustified.
Referring to various paragraphs from the judgment of the Hon'ble Supreme
Court in T.M.A. PAI FOUNDATION v. STATE OF KARNATAKA6 and P.A. INAMDAR'S case
(1 supra), it is contended by the learned Senior Counsel that the admission
procedure prescribed under the impugned Rule runs contrary to the law declared
therein.
It is also contended that the impugned Rule which has completely taken away the
right of rejection of unsuitable candidates made inroads into autonomy of
unaided professional colleges in the matter of administration of educational
institutions.
While reiterating the submissions made by Sri P.P. Rao, it is contended by
Sri L. Nageswara Rao, the learned Senior Counsel appearing for the other writ
petitioners that the restrictions imposed under the impugned amended rules are
beyond the regulatory power of State. To substantiate his submission, the
learned Senior Counsel has extensively referred to the various paragraphs from
the judgment of the Constitution Bench in T.M.A. PAI FOUNDATION'S case (6 supra)
as well as the later decision of the seven-Judge Bench in P.A. INAMDAR'S case
(1 supra). The learned counsel has also referred to the observations in MODERN
DENTAL COLLEGE AND RESEARCH CENTRE v. STATE OF M.P.7.
It is further submitted by Sri L. Nageswara Rao that any regulatory measure can
be imposed by the State only when the management fails to adhere to the triple
test of fairness, transparency and non-exploitativeness mentioned in P.A.
INAMDAR'S case (1 supra).
Pointing out that the respondents have not shown any situation where a
management of educational institution violated the existing rules and action
taken upon such derogation, it is urged by Sri L. Nageswara Rao that the
assertion of the respondents that the managements have failed to comply with the
rule of merit is without any basis and such unilateral assertion cannot be
accepted. The learned Senior Counsel has also submitted that in spite of the
power conferred under the rules issued under G.O.Ms.No.74 & G.O.Ms.No.75 dated
28.07.2011 to penalize institutions which do not make admissions in the
stipulated procedure, the State has not even penalized a single institution till
now which itself shows that the existing rules in G.O.Ms.No.74 and G.O.Ms.No.75
are adequate.
It is further contended by Sri L.Nageswara Rao that it is impossible to
implement the procedure prescribed in the impugned rule for the current academic
year in view of the time schedule fixed in PARSHVANATH CHARITABLE TRUST'S case
(5 supra) according to which the admission should be completed by 30th July and
consequently several seats in educational institutions will go vacant thus
causing irreparable loss and damage not only for the institutions but also for
the students.
Sri D.Prakash Reddy, the learned Senior Counsel appearing for the
petitioners in the writ petitions filed by minority institutions, at the outset
referred to ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI8, wherein it was held
that the minorities whether based on religion or language have the right to
establish and administer educational institutions of their choice under Article
30 (1) of the Constitution of India and that the State being the controlling
authority has right and duty to regulate all academic matters. It is pointed
out by the learned Senior Counsel that the view expressed in ST. STEPHEN'S
COLLEGE'S case (8 supra) is affirmed by the eleven-Judge
Constitution Bench in T.M.A. PAI FOUNDATION'S case (6 supra).
Sri D.Prakash Reddy, the learned Senior Counsel further submitted that
surrendering the total process of selection to the State is unreasonable and the
same was disapproved in T.M.A. PAI FOUNDATION'S case (6 supra). According to the
learned Senior Counsel, the real purpose sought to be achieved by Article 30 of
the Constitution of India is to give minorities some additional protection and
therefore even when students are required to be selected on the basis of merit,
the ultimate decision to grant admission to the students who are otherwise
qualified for grant of admission must be left with the educational institution
concerned.
Sri S.Niranjan Reddy and Sri S.Sriram, the learned Counsel appearing for the
petitioners have also made their submissions on the same lines.
Sri A. Sudershan Reddy, the learned Advocate General appearing on behalf
of the respondents submitted that the amendment to Rule 6(ii) by the impugned
G.O.Ms.No.66 & G.O.Ms.No.67 dated 03.09.2012 is in fact made to comply with the
dicta laid down by the Supreme Court in T.M.A. PAI FOUNDATION'S case (6 supra),
P.A. INAMDAR'S case (1 supra) and M. RATIN'S case (2 supra) and to ensure and
enable the eligible meritorious candidates to have a reasonable and transparent
approach for admission under Category-B seats. It is contended by the learned
Advocate General that the impugned rules are permissive regulations as held by
the Apex Court as well as this Court in various decisions and they cannot be
held to be unreasonable restrictions on the right of the petitioners. In support
of his submission, the learned Advocate General relied upon N.K. BAJPAI v. UNION
OF INDIA9.
Point for consideration:
In the light of the rival submissions noticed above, the only question that
arises for consideration is whether the admission process provided under Rule 6
(ii) as amended by G.O.Ms.Nos.66 and 67, dated 3.9.2012 amounts to imposing
unreasonable restrictions on the right of the petitioners to establish and
administer unaided educational institutions so as to declare the same
unconstitutional.
Consideration of the rival submissions:
Before proceeding further, it may be reiterated that the impugned Rule 6 (ii)
deals with the admission to Category-B seats only i.e., 30% of the total intake
of the seats to be filled by the unaided institutions (both non-minority and
minority).
The question whether there can be Government regulations in case of private
institutions (unaided and aided) and if so to what extent, was one of the issues
that fell for consideration by the eleven-Judge Constitution Bench of the Apex
Court in T.M.A. PAI FOUNDATION'S case (6 supra).
The Apex Court through the majority opinion held that the right to establish and
administer private unaided non-minority educational institutions broadly
comprises the right to admit students and to set up a reasonable fee structure,
the other rights being to constitute a governing body; to appoint staff; and to
take action if there is dereliction of duty on the part of any employee.
In para-54 of the judgment it is explained:
"The right to establish an educational institution can be regulated; but such
regulatory measures must, in general, be to ensure the maintenance of proper
academic standards, atmosphere and infrastructure (including qualified staff)
and the prevention of maladministration by those in charge of management. The
fixing of a rigid fee structure, dictating the formation and composition of a
governing body, compulsory nomination of teachers and staff for appointment or
nominating students for admissions would be unacceptable restrictions."
In para-58 of the judgment, while making it clear that the merit must play an
important role for admission, it is observed:
"For admission into any professional institution, merit must play an important
role. While it may not be normally possible to judge the merit of the applicant
who seeks admission into a school, while seeking admission to a professional
institution and to become a competent professional, it is necessary that
meritorious candidates are not unfairly treated or put at a disadvantage by
preferences shown to less meritorious but more influential applicants.
Excellence in professional education would require that greater emphasis be laid
on the merit of a student seeking admission. Appropriate regulations for this
purpose may be made keeping in view the other observations made in this judgment
in the context of admissions to unaided institutions."
So far as the regulations that can be framed relating to private unaided
professional institutions are concerned, it is held in para-68:
"It would be unfair to apply the same rules and regulations regulating admission
to both aided and unaided professional institutions. It must be borne in mind
that unaided professional institutions are entitled to autonomy in their
administration while, at the same time, they do not forego or discard the
principle of merit. It would, therefore, be permissible for the university or
the Government, at the time of granting recognition, to require a private
unaided institution to provide for merit-based selection while, at the same
time, giving the management sufficient discretion in admitting students. This
can be done through various methods. For instance, a certain percentage of the
seats can be reserved for admission by the management out of those students who
have passed the common entrance test held by itself or by the State/university
and have applied to the college concerned for admission, while the rest of the
seats may be filled up on the basis of counselling by the State agency. This
will incidentally take care of poorer and backward sections of the society. The
prescription of percentage for this purpose has to be done by the Government
according to the local needs and different percentages can be fixed for minority
unaided and non-minority unaided and professional colleges. The same principles
may be applied to other non-professional but unaided educational institutions
viz. graduation and postgraduation non-professional colleges or institutes."
With regard to rights of minority institutions to administer educational
institutions, it is held in paras 137 to 139:
"It follows from the aforesaid decisions that even though the words of
Article 30(1) are unqualified, this Court has held that at least certain other
laws of the land pertaining to health, morality and standards of education
apply. The right under Article 30(1) has, therefore, not been held to be
absolute or above other provisions of the law, and we reiterate the same. By the
same analogy, there is no reason why regulations or conditions concerning,
generally, the welfare of students and teachers should not be made applicable in
order to provide a proper academic atmosphere, as such provisions do not in any
way interfere with the right of administration or management under Article
30(1).
As we look at it, Article 30(1) is a sort of guarantee or assurance to the
linguistic and religious minority institutions of their right to establish and
administer educational institutions of their choice. Secularism and equality
being two of the basic features of the Constitution, Article 30(1) ensures
protection to the linguistic and religious minorities, thereby preserving the
secularism of the country. Furthermore, the principles of equality must
necessarily apply to the enjoyment of such rights. No law can be framed that
will discriminate against such minorities with regard to the establishment and
administration of educational institutions vis--vis other educational
institutions. Any law or rule or regulation that would put the educational
institutions run by the minorities at a disadvantage when compared to the
institutions run by the others will have to be struck down. At the same time,
there also cannot be any reverse discrimination. It was observed in St. Xavier's
College case [(1975) 1 SCR 173] at SCR p. 192 that : (SCC p. 743, para 9)
"The whole object of conferring the right on minorities under Article 30 is to
ensure that there will be equality between the majority and the minority. If the
minorities do not have such special protection they will be denied equality."
In other words, the essence of Article 30(1) is to ensure equal treatment
between the majority and the minority institutions. No one type or category of
institution should be disfavoured or, for that matter, receive more favourable
treatment than another. Laws of the land, including rules and regulations, must
apply equally to the majority institutions as well as to the minority
institutions. The minority institutions must be allowed to do what the non-
minority institutions are permitted to do.
Like any other private unaided institutions, similar unaided educational
institutions administered by linguistic or religious minorities are assured
maximum autonomy in relation thereto; e.g. method of recruitment of teachers,
charging of fees and admission of students. They will have to comply with the
conditions of recognition, which cannot be such as to whittle down the right
under Article 30."
Thus it is clear that the only difference between the right of minorities
under Article 30 and the right of non-minorities under Article 19(1)(g) of the
Constitution of India in the matter of establishing and administering
educational institutions of their choice is only that the minority institutions
can admit students belonging to the minority group while non-minority
institutions do not have the right to admit students of any particular group to
the exclusion of others. In all other respects the position of unaided private
educational institutions established and administered by both minorities and
non-minorities is the same.
The ratio decedendi of T.M.A. PAI FOUNDATION'S case (6 supra) with
regard to the admission procedure of unaided educational institutions, both
minority and non-minority has been culled out by the seven-Judge Bench in P.A.
INAMDAR'S case (1 supra) as under:
137. Pai Foundation has held that minority unaided institutions can legitimately
claim unfettered fundamental right to choose the students to be allowed
admission and the procedure therefor subject to its being fair, transparent and
non-exploitative. The same principle applies to non-minority unaided
institutions. There may be a single institution imparting a particular type of
education which is not being imparted by any other institution and having its
own admission procedure fulfilling the test of being fair, transparent and non-
exploitative. All institutions imparting same or similar professional education
can join together for holding a common entrance test satisfying the abovesaid
triple tests. The State can also provide a procedure of holding a common
entrance test in the interest of securing fair and merit-based admissions and
preventing maladministration. The admission procedure so adopted by a private
institution or group of institutions, if it fails to satisfy all or any of the
triple tests, indicated hereinabove, can be taken over by the State substituting
its own procedure. The second question is answered accordingly.
138. It needs to be specifically stated that having regard to the larger
interest and welfare of the student community to promote merit, achieve
excellence and curb malpractices, it would be permissible to regulate admissions
by providing a centralised and single-window procedure. Such a procedure, to a
large extent, can secure grant of merit-based admissions on a transparent basis.
Till regulations are framed, the Admission Committees can oversee admissions so
as to ensure that merit is not the casualty.
In the light of the ratio laid down in T.M.A. PAI FOUNDATION'S case (6 supra) as
explained in P.A. INAMDAR'S case (1 supra) there can be no dispute that so far
as the admissions to 30% seats under Category-B are concerned, unaided
professional institutions have a right to admit students of their choice.
However regulation of admission process by the State by imposing reasonable
restrictions is permissible to ensure admission of eligible candidates on the
basis of merit satisfying the triple test of being fair, transparent and non-
exploitative.
It is the specific case of the petitioners before us that they have been
making the admissions against the 30% seats under Category-B strictly on the
basis of merit and that the admissions made by them to Category-B seats have
been in compliance with the triple test of being fair, transparent and non-
exploitative. According to them Rule 6(ii) as it stood prior to impugned
amendment had given ample power to the State to regulate the admission process
and to ensure fairness and transparency, particularly to ensure that the
admissions are on merit basis. It is alleged that the procedure sought to be
introduced by the amended Rule 6(ii) has virtually taken away the autonomy of
the unaided institutions in the matter of selection of candidates for admission
under the guise of ensuring fairness, transparency and non-exploitativeness in
the admission process. The restrictions imposed by the amended Rule 6(ii)
according to the petitioners are unreasonable restrictions infringing their
fundamental right guaranteed under Article 19 (1) (g) of the Constitution of
India.
We may at the outset mention that in determining the question of
reasonableness, the Courts have to take into account the nature of the right
alleged to have been infringed, the underlying purpose of the restriction
imposed, the extent and urgency of the evil sought to be remedied by the law,
the disproportion of the imposition and the prevailing conditions at the time.
It is also necessary to view the tests of reasonableness in the context of the
issues which faced the legislature. In the construction of such laws and in
judging their validity, Courts must approach the problem from the point of view
of furthering the social interest which is the purpose of the legislature to
promote [see State of Madras v. V.G.Row (AIR 1952 SC 196), Virendra v. The State
of Punjab & another (AIR 1957 SC 896), Jyoti Pershad v. UT of Delhi (AIR 1961 SC
1602) and Municipal Corporation of the City of Ahmedabad v. Jan Mohammed
Usmanbhai (1986) 3 SCC 20 ]
While reiterating the above noticed settled principles of law it is
further explained in a recent decision in N.K.BAJPAI'S case (9 supra) as
under:
16. No person can be divested of his fundamental rights. They are incapable of
being taken away or abridged. All that the State can do, by exercise of its
legislative power, is to regulate these rights by imposition of reasonable
restrictions on them. Upon an analysis of the law, the following tests emerge:
(a) The restriction can be imposed only by or under the authority of law. It
cannot be imposed by exercise of executive power without any law to back it up.
(b) Each restriction must be reasonable.
(c) A restriction must be related to the purpose mentioned in Article 19(2).
17. The questions before us, thus, are whether the restriction imposed was
reasonable and whether the purported purpose of the same squarely fell within
the relevant clauses discussed above. The legislative determination of what
restriction to impose on a freedom is final and conclusive, as it is not open to
judicial review. The judgments of this Court have been consistent in taking the
view that it is difficult to define or explain the word "reasonable" with any
precision. It will always be dependent on the facts of a given case with
reference to the law which has been enacted to create a restriction on the
right. It is neither possible nor advisable to state any abstract standard or
general pattern of reasonableness as applicable uniformly to all cases.
18. A common thread runs through Parts III, IV and IV-A of the Constitution of
India. One Part enumerates the fundamental rights, the second declares the
fundamental principles of governance and the third lays down the fundamental
duties of the citizens. While interpreting any of these provisions, it shall
always be advisable to examine the scope and impact of such interpretation on
all the three constitutional aspects emerging from these Parts.
20. As difficult as it is to anticipate the right to any freedom or liberty
without any reasonable restriction, equally difficult is it to imagine the
existence of a right not coupled with a duty. The duty may be a direct or
indirect consequence of a fair assertion of the right. Although Part III of the
Constitution of India confers rights, still the duties and restrictions are
inherent thereunder. These rights are basic in nature and are recognised and
guaranteed as natural rights, inherent in the status of a citizen of a free
country, but are not absolute in nature and uncontrolled in operation. Each one
of these rights is to be controlled, curtailed and regulated, to a certain
extent, by laws made by Parliament or the State Legislature. In spite of there
being a general presumption in favour of the constitutionality of a legislation
under challenge in case of allegations of violation of the right to freedom
guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie
case of such violation being made out, the onus shifts upon the State to show
that the legislation comes within the permissible restrictions set out in
clauses (2) to (6) of Article 19 and that the particular restriction is
reasonable. It is for the State to place appropriate material justifying the
restriction and its reasonability on record.
In the light of the legal position noticed above we shall now proceed to
examine whether the admission procedure provided under the impugned rule 6(ii)
would amount to imposing unreasonable restrictions on the right of the
petitioners recognized in T.M.A. PAI FOUNDATION'S case (6 supra) and P.A.
INAMDAR'S case (1 supra) to establish and administer unaided educational
institutions.
For proper appreciation of the said question it is necessary to notice
Rule 6(ii) as it stood prior to amendment by G.O.Ms.No.66 and G.O.Ms.No.67 dated
03.09.2012 and thereafter.
Rule 6(ii) as it stood prior to amendment reads as under:-
6 (ii) To fill up Category-B Seats (30%)
1. The institution shall conduct Admissions to the seats available as specified
below:
(i) The Institution shall not issue notification and receive the applications
until the EAMCET admission notification is issued by the concerned.
(ii) The NRI seats (not exceeding 15% of the sanctioned intake in each course)
shall be filled on merit basis with NRI / NRI sponsored candidates who have
passed the qualifying examination with not less than 50% of in the prescribed
group subjects or Cumulative Grade Point Average (CGPA) equivalent to 5 on a
scale of 10.
(iii) The remaining seats shall be filled on merit basis with candidates
belonging to other States and Union territories who have secured rank at AIEEE
and secured not less than 50% of aggregate marks in the qualifying examination.
(iv) The seats remaining unfilled from (ii) and (iii) above shall be filled with
eligible candidates on merit basis following eligibility criteria laid in rule
(4) of these rules.
(v) There after, if any seats still remain unfilled such seats may be filled on
merit basis with candidates securing not less than 50% in the prescribed group
subjects taken together in the qualification examination.
2. The Institution shall follow the procedure mentioned below to conduct the
Admissions:
(i) The Managements of the Colleges shall notify the details of courses offered
with intakes, schedule of admissions, cost of Application form and Minority/Non
Minority, statues in popular news dailies one in each language i.e. English,
Telugu & Urdu which is to be displayed on the College website and also on the
college notice board.
(ii) The blank application forms for admission in 'B' category seats shall be
made available to the candidates from the college counter on payment of the
prescribed fee. The facility for downloading the form of application from the
college website should also be provided. In this case, the cost of procuring
the application from shall be paid to the college by the applicant at the time
of submission of the duly filled in application forms.
(iii) The college authorities shall enter the day wise sale of applications with
the name of the candidates and address in a Register opened for the purpose and
it shall be made available for inspection for any Officer authorized by the
Competent Authority.
(iv) The college shall issue an acknowledgment / receipt for the applications
received.
(v) The Management shall prepare the merit list of eligible applicants for each
course and announce the same by displaying both on the website and notice board
of the college for at least two weeks from the date of announcement.
(vi) The Institution shall obtain ratification from the Competent Authority for
all the admissions conducted under Category B seats by the institution.
(vii) The Management shall collect the Tuition fees as prescribed by AFRC for
category 'B' seats.
(viii) The Management shall comply with the above instructions and failure in
implementing the same shall entail to withdrawal of Government permission,
University affiliation and AICTE approval.
3. After scrutiny, the Competent Authority shall send the ratified list of
admitted candidates from outside the State, NRIs and others admitted by the
Institution to the University concerned and also to the respective Institutions.
After the amendment by G.O.Ms.No.66 and G.O.Ms.No.67 dated 03.09.2012,
Rule 6(ii) reads as under:-
6 (ii) To fill up Category-B Seats (30%)
1. The Institution shall conduct Admissions to the seats available as specified
below:
(i) The Institution shall not issue notification and receive the applications
until the EAMCET admission notification is issued by the Competent Authority.
In the interests of students, the Competent Authority may suggest dates for
different milestones in the admission process.
(ii) The institutions that are approved by All India Council for Technical
Education and permitted to fill NRI seats not exceeding 5% of the sanctioned
intake in each course for the academic year shall admit NRI candidates (sons and
daughters of NRIs) who have passed the qualifying examination with not less than
50% marks in the prescribed group subjects or 50% aggregate marks in the
qualifying examination or Cumulative Grade Point Average (CGPA) equivalent to 5
on a scale of 10.
(iii) The remaining seats shall be filled on merit basis with candidates
including from other States and Union territories who have secured rank at AIEEE
and secured not less than 45% of marks in the prescribed group subjects in the
qualifying examination.
(iv) The seats remaining unfilled from (ii) and (iii) above shall be filled with
eligible candidates, who have qualified the EAMCET examination on merit basis
following eligibility criteria laid in rule (4) of these rules.
(v) Thereafter, if any seats still remain unfilled such seats may be filled on
merit basis with candidates securing not less than 45% (40% in case of
candidates belonging to reserved categories) of marks in the prescribed group
subjects taken together / aggregate marks in the qualifying examinations, as
prescribed.
2. The Institutions shall follow the procedure mentioned below to conduct
the Admissions:
(i) The Competent Authority shall facilitate the setting up of a web portal
which will act as a "Single Window for Category 'B' seats" for both the Colleges
and the Students for filling up of the "Category B" seats.
(ii) Each college will be provided a Unique ID and password to port its data
relating to the category 'B' seats in the said portal.
(iii) Subsequently, all colleges will be provided with a digital signature to
ensure secure access of their operations.
(iv) The colleges shall port all the relevant data regarding the Category "B"
seats, branch wise as provided in the said web portal.
(v) Once the data is finally entered by the managements no change shall be
permitted.
(vi) The web portal shall provide the students, the facility for making online
applications for the Category "B" seats. A printable/recordable electronic
acknowledgment shall be provided to the student on successful uploading of his
online application. This will dispense with the need for the student to
physically visit each and every college besides ushering in transparency.
(vii) The management of the Colleges shall notify the details of courses offered
with intakes, schedule of admissions (date wise), registration fee for the
application, minority or non-minority status in leading news dailies one in each
language i.e. English, Telugu & Urdu & which will also be uploaded on the web
portal hosted by the Competent Authority.
(viii) The Competent Authority will suggest a time schedule with dates for such
notification to enable the students to opt for category 'B' seats uniformly
across the state. All admissions to the category 'B' seats will be completed
during the suggested time period.
(ix) On the dates as suggested by the Competent Authority, the web portal will
be opened for all students desirous of seeking admissions to Category 'B' seats
in all Private Un-Aided Professional colleges in the State. Candidates can
apply to colleges of their choice by visiting the portal only during the
suggested dates by the Competent Authority.
(x) A candidate can select any of the college/colleges and apply online for
seeking admissions to Category 'B' seats of college/colleges after paying the
requisite registration fees as notified by the college.
(xi) The candidate can also give his order of preference for admission to a
college by giving the order of preference among the courses offered by the
college in the online application form. Only one form needs to be filled for a
college regardless of the number of options.
(xii) The candidate can apply for more than one college by visiting the
respective website of colleges and apply online after paying the registration
fees specified for each college.
(xiii) No new application will be accepted after the closing date of admissions
to the college.
(xiv) The Management of the college will solely upload the data and administer
the selection process as per the admission procedure specified. Each college
will be permitted to download the data of the applications received and
pertaining to it, after the closing date as suggested by the Competent
Authority.
(xv) Thereafter, the college can at its option use the online merit generation
facility available on the web portal. The merit list generated will be in order
of NRI quota (if available), AIEEE rankers, EAMCET rankers & qualifying
examination in order of merit as prescribed in Rule 6(ii)(I) of these rules.
(xvi) The selection of candidates will be done by the college managements
themselves, as per the merit of the candidates.
(xvii) The selection list, after selection process is completed by the
management of respective colleges as per the prescribed norms will be uploaded
by the managements on the web portal and be transmitted online to the Competent
Authority.
(xviii) The Competent Authority will verify the list of the selected candidates
and validate the same with reference to the G.O.s and the procedure prescribed
through an online cross verification procedure based on applications received by
a college.
(xix) The Competent Authority shall approve the validated list if found tallying
by the cross validation process or reject the lists if found to be at variance
to the rules and procedures prescribed, and communicate the same to the
concerned colleges for compliance.
(xx) In case of unfilled seats if any, the concerned colleges will again upload
for validation the second list of selected candidates from out of the left over
candidates who have applied in the portal. After generation of the merit list,
the college managements will forward the applications and approval by Competent
Authority as per the schedule prescribed by the Competent Authority.
(xxi) Applications of candidates not fulfilling the required conditions during
the online cross validation of the list by the Competent Authority will
summarily be rejected.
(xxii) The Competent Authority shall open a helpline to assist the candidates
and college managements to sort out their grievances and provide technical
support if needed.
(xxiii) The Competent Authority will issue detailed operational guidelines for
using the web portal besides prescribing a fee for usage of the portal by the
managements of colleges and applicants.
(xxiv) The Management shall collect the Tuition fee as prescribed by the
Government for category 'B' seats and any excess fee collected will amount to
capitation fee and Managements are liable for action under A.P. Educational
Institutions (Regulation of Admissions and Prohibition of Capitation fee) Act,
1983.
(xxv) Any complaint/appeal against the selection shall be made to the Admission
and Fee Regulatory Committee (AFRC).
(xxvi) The managements shall comply with the above instructions and failure in
implementing the same shall entail actions as per the relevant Acts and Rules in
force.
A perusal of the above extracted provisions would show that as per Rule
6(ii) as it stood prior to the amendment though the institutions were required
to display the details of the courses offered and other details on the college
website and the facility for downloading the application forms was also provided
to the candidates, submission of the duly filled-in applications should be done
only in person by the candidates at the respective institutions. Thereafter,
the selection would be made by the management and the merit list of the eligible
applicants for each course would be announced by displaying on the website and
also on the notice-board of the college. The further requirement was that all
the admissions under Category-B should be ratified by the competent authority.
However, under the amended Rule 6(ii) the entire selection process to the
Category-B seats shall be completed online through the common web portal set up
by the competent authority. It is also relevant to note that a candidate
can select any of the college/colleges and can also give their order of
preference for admission to a college as well as the courses offered by the
college in the online application form. The candidate is also given option to
apply for more than one college by visiting the respective website of college.
Though the Rule provides that the selections will be made by the managements
themselves, the selection list has to be uploaded on the web portal and it shall
be transmitted online to the competent authority for validation and approval.
For better appreciation, the procedure prescribed under the amended Rule
is explained hereunder:
All the institutions have to port their data regarding Category-B seats branch-
wise as provided in the said web portal using the unique ID and password
provided by the competent authority. The institutions shall also notify the
details of the courses offered with intakes, schedule of admissions,
registration fee for the application, minority or non-minority status in leading
news dailies one in each language i.e., English, Telugu and Urdu and the same
will also be uploaded on the web portal hosted by the competent authority. The
time schedule with dates for such notification will be suggested by the
competent authority to enable the students to opt for Category-B seats uniformly
across the State and all admissions will be completed during the time period so
fixed. On the dates as suggested by the competent authority the web portal will
be opened for all students desirous of seeking admission to Category-B seats and
the candidates can apply to colleges of their choice by visiting the portal
during the suggested dates by the competent authority. The management of the
college will be permitted to download the data of the applications received and
pertaining to it after the closing date as suggested by the competent authority.
Thereafter the college can at its option use the online merit generating
facility available on the web portal and the selection of candidates shall be as
per the merit of the candidates. After selection process is completed the
management has to upload the selection list on the web portal and it shall be
transmitted online to the competent authority. On verification of the list of
the selected candidates the competent authority will validate the same through
an online cross verification procedure based on applications received by a
college. The competent authority shall approve the validated list if it is
found tallying by the cross validation process. The list shall be rejected by
the competent authority if it is found to be at variance with the rules and
procedures prescribed and communicate the same to the concerned colleges for
compliance. In case of unfilled seats if any the concerned colleges will again
upload for validation of the second list of selected candidates from and out of
the leftover candidates who have applied in the portal. After generation of the
merit list the college management will forward the applications for approval by
competent authority as per the schedule prescribed by the competent authority.
According to the learned Advocate General, there is no interference by the State
either with the finance, administration or right to admission of the petitioner
institutions. Thus, it is contended that the amended Rule which is aimed at
regulating the admission process by promoting merit and achieving excellence in
the larger interest and welfare of the student community is permissible as held
in P.A. INAMDAR'S case (1 supra).
Apparently, the submission of the learned Advocate General is based upon the
following observations made in para-138 of
P.A. INAMDAR'S case (1 supra).
Para-138. It needs to be specifically stated that having regard to the
larger interest and welfare of the student community to promote merit, achieve
excellence and curb malpractices, it would be permissible to regulate admissions
by providing a centralised and single-window procedure. Such a procedure, to a
large extent, can secure grant of merit-based admissions on a transparent basis.
Till regulations are framed, the Admission Committees can oversee admissions so
as to ensure that merit is not the casualty.
It is relevant to note that the petitioners are also relying upon the very
same observations made in P.A. INAMDAR'S case (1 supra) and it is
their submission that para-138 shall be read in conjunction with para-137.
Thus, according to the petitioners though it is always open to the State to
regulate the admission process, such regulation is permissible only where the
institutions failed to satisfy the triple test of being fair, transparent and
non-exploitative.
Having given our thoughtful consideration to the rival submissions and
having carefully gone through the amended Rule 6 (ii), we are unable to accept
the contention of the petitioners that the procedure prescribed under the
amended Rule 6 (ii) has taken away the choice of the petitioner institutions in
the selection process.
Clause (xvi) of the amended Rule 6 (ii) specifically provides that the selection
of candidates will be done by the college management themselves as per the merit
of the candidates. Even according to the law laid down in T.M.A. PAI
FOUNDATION'S case (6 supra) the admissions should be merit based and the
admission process should be fair, transparent and non-exploitative.
The petitioners do not dispute the legal position and it is reiterated by the
petitioner institutions that they have never deviated from the requirement of
merit while making the admissions into Category-B seats.
The preamble to the impugned G.O.Ms.Nos.66 and 67, dated 03.09.2012 shows that
the main object of introducing the admission process through "common web portal"
set up by the competent authority is to oversee admissions made by the unaided
institutions and to ensure that the admissions are made strictly on merit basis
satisfying the triple tests of being fair, transparent and non-exploitative.
It is also brought to our notice that this Court in M. RATIN'S case (2 supra)
while considering the grievance of some of the candidates that the
institutions were not following the fair and transparent method as enjoined on
them by the Rules made under the Capitation Fee Act, directed that the
respondents should actively oversee the process of admissions by the unaided
non-minority private managements from the time of commencement of the process
till the approval of the list submitted by the colleges and shall take
appropriate action wherever it finds that the colleges indulged in violation of
the rule either by not following the procedure in the proposed operating
guidelines or by denying seats to students with superior merit and who have duly
applied for seats. The said direction in fact is in tune with the view expressed
by the Apex Court in para-138 of P.A. INAMDAR'S case (1 supra).
Therefore, the petitioners cannot and shall not have any grievance if the State
seeks to regulate the admission process for the purpose of ensuring that the
admissions are strictly on merit basis and that the triple tests of being fair,
transparent and
non-exploitative are satisfied.
It is explained in the counter-affidavit filed on behalf of the A.P. State
Council for Higher Education that about 685 Engineering Colleges and 280
Pharmacy Colleges are existing in the State and as per the admission procedure
prescribed under the unamended Rule 6 (ii) it is practically impossible for the
competent authority to ensure that the admissions are made in a transparent
manner and therefore under the amended Rule 6 (ii) the admissions are sought to
be made through a common web portal set up by the competent authority.
On a careful reading of the amended Rule 6 (ii), we are of the opinion that the
admission procedure prescribed therein is aimed at enabling the competent
authority to oversee the admissions so as to ensure that the admissions are
strictly on merit basis satisfying the triple tests of being fair, transparent
and
non-exploitative.
It may be true that the amended Rule does not contain an express provision
enabling the management to call upon the candidates selected on merit basis to
appear in person so as to establish their credibility and financial capacity for
payment of the tuition fee as prescribed by the Admission and Fee Regulatory
Committee (AFRC) to the satisfaction of the management. Moreover, there appears
to be certain practical difficulties in making the admissions on account of the
option given to the candidates to opt for any number of colleges/courses in the
order of preference which is likely to result in delaying the completion of the
admission process. It may also result in many seats remaining vacant in
Category-B.
As per the settled legal position, the reasonableness of the restrictions
imposed has to be tested in the light of the facts and circumstances of the case
taking into account the nature of the right alleged to have been infringed, the
underlying purpose of the restriction imposed and the extent and urgency of the
evil sought to be remedied by the law.
The Rules under G.O.Ms.No.74 & 75, dated 28.7.2011, are made in exercise of the
powers conferred under the Capitation Fee Act, which itself is aimed at
prohibiting the collection of capitation fee in the State in order to avoid
frustration among the meritorious and indigent students and to maintain
excellence in the standards of education. The specific case of the respondents
is that it has come to the notice of the State Government that a majority of the
managements of the private unaided professional colleges are not following a
fair and transparent procedure to fill up the Category-B seats and there are
also instances where the managements had failed even to supply the application
forms to the eligible meritorious candidates thereby preventing them from
applying for admission and therefore with a view to streamline the admission
process in the interest of students it has been decided to amend the Rule by
providing for making the admissions through common web portal set up by the
competent authority.
Rule 6 sub-rule (2) clause (vi), which provides for availability of application
forms to the eligible candidates and submission thereof after duly being filled
up through Single Window system does not appear to be unreasonable and the
reasonableness can be deduced from the following test. If this clause is
upheld, whether management will at all be prejudiced or will suffer unjustly,
and whether it will benefit the aspirant candidates. In our view, if this
clause is allowed to be operative, it does not affect the right of the
management to choose the eligible candidates by selection. This is a measure
provided for collecting application forms in a systematic way and it really
helps the management to start admission process smoothly. The right of selection
of the candidates by the management has not been touched by this questioned Rule
at all and this will be clear from sub-clause (xvi) under clause (2) of
Rule 6 (ii) which provides for preparation of merit list of the eligible
applicants for each course by management and management alone. On the other
hand, the aforesaid measure will benefit the applicant in a transparent manner
to have an opportunity to collect and submit the application form free from any
harassment or any anxiety and this will also eliminate possibility of making any
complaint or grievance from any corner with regard to distribution and
collection of the application form by the management. In our considered view,
no man of ordinary prudence will think that the aforesaid clause will interfere
with or affect the interest of the management in any manner whatsoever. It
further appears that after the selection process is over by the management, the
same has to be displayed both on the website and notice board of the college for
at least two weeks from the date of announcement. Further it has to be sent
for ratification of the competent authority for all the admissions conducted
under category-B seats by the institution. This has provided a safeguard
measure against any possible manipulation and injustice to any candidate and
also ensures total transparency in the matter of selection and it does not
affect any just right of management.
We think the aforesaid judgment of the Supreme Court is concerned about the
independence of the management as far as the admission of the candidates in
category-B is concerned.
The right of choice, as we have already indicated, has not been touched and the
same has to be done by the management. We fail to see any reason why the
aforesaid measure can be said to be an unreasonable so much so it may be termed
as interfering device to the independent right of the administration to admit
students in
B category seats.
Having regard to the object with which the impugned notifications are issued
substituting Rule 6 (ii), particularly keeping in view the observations made in
para-138 of
P.A. INAMDAR'S case (1 supra) that it would be permissible to regulate
admissions by providing a centralized and single window procedure so as to
secure merit based admissions on a transparent basis, we are of the view that
the amended Rule 6 (ii) can neither be said to have encroached upon the autonomy
of the unaided educational institutions in the matter of admissions to Category-
B seats nor it has imposed unreasonable and unacceptable restrictions on their
right to make admissions into the said seats. Hence there is no infringement of
the rights of the petitioners guaranteed under Article 19 (1) (g) or Article 30
of the Constitution of India.
In view of the above conclusion reached by us, we are unable to accept further
contention of the petitioners that the procedure prescribed under the amended
Rule amounts to unilateral imposition of seat sharing pattern even in respect of
30% seats under Category-B which was held to be unconstitutional in
P.A. INAMDAR'S case (1 supra).
As already expressed above, even under the amended Rule the autonomy of the
petitioner institutions to make admissions into Category-B seats remained
untouched, however the selection process is made transparent to enable the
competent authority to oversee the selection process at every stage right from
the stage of notifying the seats till the admissions are made. It may also be
added that the amended Rule 6 (ii) is only regulatory in nature and does not in
any way restrict or control the rights guaranteed to the petitioners to
administer unaided minority/non-minority educational institutions. Since their
right to admission to Category-B seats is not restricted at all, the contention
that under the guise of the amended Rule the State has unilaterally imposed
'seat sharing' even in respect of Category-B seats is untenable.
However, Rule 6 (ii) sub-rule (1) clause (ii) provides that the reservation of
NRI seats should not exceed 5% of the sanctioned
in-take in the course. The reduction of NRI quota from 15% to 5%, in our view,
is not justified as the same cannot be reduced unilaterally by the Government in
the name of regulatory measure. The aforesaid stipulation, as rightly contended
by the learned Senior Counsels for the petitioners, is in substance contrary to
the decision of the Supreme Court in case of P.A. INAMDAR (supra). In
paragraph-131 of the report, the Supreme Court has clearly mentioned as follows:
"In effect and reality, under this category, less meritorious students, but who
can afford to bring more money, get admission. During the course of hearing, it
was pointed out that a limited number of such seats should be made available as
the money brought by such students admitted against NRI quota enables the
educational institutions to strengthen their level of education and also to
enlarge their educational activities. It was also pointed out that people of
Indian origin, who have migrated to other countries, have a desire to bring back
their children to their own country as they not only get education but also get
reunited with the Indian cultural ethos by virtue of being here. They also wish
the money which they would be spending elsewhere on education of their children
should rather reach their own motherland. A limited reservation of such seats,
not exceeding 15%, in our opinion, may be made available to NRIs depending on
the discretion of the management subject to two conditions. First, such seats
should be utilised bona fide by NRIs only and for their children or wards.
Secondly, within this quota, merit should not be given a complete go-by. The
amount of money, in whatever form collected from such NRIs, should be utilised
for benefiting students such as from economically weaker sections of the
society, whom, on well-defined criteria, the educational institution may admit
on subsidised payment of their fee.
To prevent misutilisation of such quota or any malpractice referable to NRI
quota seats, suitable legislation or regulation needs to be framed."
To our mind, by the above decision discretion is left with management not with
government to reduce quota. In any event, no reason has been assigned why the
aforesaid NRI quota has been reduced to 5%. We think that it has been done
without having any legally entertainable complaint not to speak of enquiry as
regards mala fide utilisation of the funds collected from the NRI candidates or
total regardless of merit. It has to be understood clearly that these unaided
educational institutions are depending upon the tuition fees and the funds made
available by the candidates alone. Therefore, consideration of survival and
sustenance of the educational institution has also to be kept in mind. Further,
undoubtedly the NRI quota is a substantial source of fund. Payment of
commensurate salary to the teaching faculty and staff, providing good
infrastructural facilities including hostel accommodation require a large amount
of fund and the State Government is not coming forward to inject any fund to
support the educational institutions. It requires reasonable degree of leverage
as envisaged by the Supreme Court. This, in our view, presuming for argument
sake the State has say in this regard, should not have been reduced without
proper deliberation and discussion with the educational institutions and without
understanding the difficulty. Accordingly, we hold and declare that the
aforesaid reduction of the seats to 5% from 15% is unjustified and unfounded and
the same is accordingly struck down and we restore the NRI quota to 15%.
For the aforesaid reasons, Rule 6 (ii) as amended by G.O.Ms.Nos.66 and 67, dated
3.9.2012, except the portion reducing percentage of NRI seats to 5% from 15%,
cannot be held to be unconstitutional or contrary to the dicta laid down in
T.M.A. PAI FOUNDATION'S case (6 supra) and P.A. INAMDAR'S case (1 supra).
Hence, the petitioners are not entitled to the relief sought for.
However, we deem it appropriate to issue the following directions for effective
implementation of the amended Rule 6 (ii).
(i) Apart from making the applications online through the common web portal,
the candidates shall be given an option to submit their applications in person
at the college of their choice, however one select list shall be prepared and be
uploaded in the web portal for verification and validation in terms of the Rule.
(ii) The management of the institution shall be given an option to call upon
the selected candidates to appear in person for interview to substantiate their
credibility and financial capacity to the satisfaction of the management.
(iii) In the event of the management finding that any of the selected candidates
is not suitable for admission, the management shall be at liberty to reject the
candidature of such candidates and the reasons should be communicated to the
competent authority.
(iv) So far as the option given to the candidates to opt for any number of
colleges/courses is concerned, the A.P. State Council for Higher Education shall
have a consultation with the petitioner institutions and work out the modalities
so as to prevent multiple blockage of seats and to ensure that the selection
process is completed within a timeframe.
The A.P. State Council for Higher Education shall take expeditious steps for
implementation of the above directions.
All the Writ Petitions are accordingly disposed of. No costs.
____________________________
Kalyan Jyoti Sengupta, CJ
_______________
G. Rohini, J
Dt. 20.08.2013
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