Andhra Pradesh High Court - Amravati
Kaduru Manoj vs State Of Andhra Pradesh, on 24 December, 2020
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HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION Nos.20052; 20072; 20080; 20179 and
22435 of 2020
COMMON ORDER:
This batch of Writ Petitions is filed questioning the manner in which online admissions have been introduced for the Intermediate course by a press release.
The Writ Petition No. 20052 of 2020 which is filed by a group of students is taken up for final hearing with the consent of all the learned counsels in view of the urgency by the State due to the fact that admission of students are involved. The other Writ Petitions viz., W.P.Nos.20072; 20080, 20179 and 22435 of 2020 are also filed by students, who are questioning the manner and method in which this press release has been issued and online admission is introduced.
The press notification is dated 20.10.2020. It is as follows:
"Board of Intermediate Education, Andhra Pradesh D.No.48-12/A, Nagarjuna Nagar, Opp.NTR Health University, Vijayawada - 5220008. Rc.No.ESE51-13/109/2020 Dated:20.10.2020 PRESS RELEASE The Board of Intermediate Education, Andhra Pradesh announces the Admissions into Two year Intermediate Courses in General and Vocational Streams in various colleges for the academic session 2020-2021.
All the students are informed that the registration process of Two year Intermediate courses will be completely online for all categories and for all quotas.
The details of the registration process and subsequent procedure is available in the website of Board of Intermediate Education, Andhra Pradesh i.e., https://bie.ap.gov.in as "Online Admissions 2020-21 (APOASIS) user manual".
The schedule of online registration for Two year Intermediate courses of the Board of Intermediate Education, Andhra Pradesh is as shown below:
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Sl. Programme Commencing Last Date
No. Date (upto 5.00 pm)
1. All Two year 21.10.2020 29.10.2020
Intermediate Courses
in General and
Vocational streams
The Online application for registration and processing fee is as follows:
For OC /BC - Rs.200/- per Student.
For SC & ST - Rs.100 per Student.
The parents / Students can clarify the issues relating to Online Admissions through Toll free No.1800 274 9868.
Sd/- RamaKrishna V. I.R.S., SECRETARY."
By this press release dated 20.10.2020, the Government of Andhra Pradesh decided that the entire process of admissions for the Intermediate Course shall be made online. This press release was issued on 20.10.2020 directing that from 21.10.2020 (Commencing date) and till 29.10.2020 the students can register and that they will be allotted colleges as per the online registration. This press release has been challenged.
This Court has heard Sri B. Adinarayana Rao, learned Senior Counsel for the petitioners, Sri Damalapati Srinivas, learned Senior Counsel; Sri G.R.Sudhakar and Sri P. Durga Prasad, learned counsels for the petitioners. For the respondents the learned Government Pleader for Education and the learned Additional Advocate General for the State of Andhra Pradesh argued the matter.
The facts in this case are in narrow compass. The challenge as mooted by the petitioners and as argued by the learned Senior Counselsand others is clearly spelt out in paragraphs 16 to 20 of the Writ Affidavit in W.P.No.20052 of 2020. Apart from this, an issue is also 3 raised of the need and necessity of modifying the entire existing system by a stroke of pen.
Sri B. Adinarayana Rao, learned Senior Counsel, who took the lead in this matter, also argued about the manner of the press release dated 20.10.2020. He argues that the reason for releasing this urgent press note stating that the process of admissions will commence from 21.10.2020 and conclude on 29.10.2020 is not explained. Learned Senior Counsel submits that the students and the managements are used to use the regular system of enrollment of students for over decades. As per him students would choose their college; their course and apply to a college of their choice after weighing all the pros and cons. By an overnight press release the existing system, which has been prevalent for decades, is sought to be changed. Learned Senior Counsel points out that except a press release no publicity at all was given. It is his contention that the State has the power to make the regulations for the admissions of students, but for decades together despite the existence of this power, the Board of Intermediate Education under the relevant law has not framed a scheme for the admission of students. Therefore, he submits that for decades together students were physically applying to colleges of their choices and were being either taken in or rejected. Suddenly, with a stroke of a pen and by a mere press release the entire system is 4 sought to be altered by this new method. He draws the attention of the Court to G.O.Ms.No.539, dated 09.04.1975, by which the Standing Committee on academic affairs, the Board of Intermediate Education is given the power to make "regulations" for admission of candidates to intermediate courses [Rule 4 (3) (viii) of the Rules under A.P. Intermediate Education Act, 1971]. He drew the attention of this Court to the A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983(in short "Act 5 of 1983") and points out to that subject to the such "rules" made under Section 3 of the Act 5 of 1983, the admission can be made either on the basis of the marks obtained in the qualifying examination or on the basis of the rank in the entrance test. He points out that the 'educational institutions' as defined under Section 2 (c) of the Act 5 of 1983 includes a 'college' also. He points out that the first Act on the subject is the A.P. Intermediate Act, 1971 (in short "Act 2 of 1971"), that thereafter the rules were framed in 1975, G.O.Ms.No.29, dated 05.02.1987 etc., by which the power was vested in the State to make rules for the admission. He points out that the power,which was never exercised for decades is sought implemented by a press release to create this new method of admission. He points out that the absence of any rule or regulation makes the entire process an 'arbitrary' process. The petitioners in these 5 writ petitions have come before this Court with very specific allegations,which he points out,are not answered in the counter affidavit. Learned Senior Counsel submits that the State cannot decide to allot a student to a college. It should be left to the individual student to decide to which college he should attend and study based on his finances, place of residence and other choices, which according to him are fundamental right available to the student. The interest of the student, according to the learned Senior Counsel,was not at all considered. Relying on RajanPurohit and Ors., v Rajasthan University of Health Sciences and Ors.,1on the basis of paras 29 and 31he argues that students must be selected on merit and must be treated fairly. He points out that nothing is clearly specified on these aspects and a mere press release is issued. Learned Senior Counsel, therefore, submits that the entire exercise is vitiated and the action of the State has to be set aside.
Learned Senior Counsel questions the timing and the sudden release of the press note. He points out that suddenly on 20.10.2020 a press release was issued stating that the proceedings will commence fromthe next morning. He points out that this was during Dassara Vacation, that many people travel outside their places of residence, visit people, go to nearby towns and villages etc. He also 1 (2012) 10 SCC 770 6 argues that if a scheme is to be introduced (which has State wide repercussions) it should be done after very extensive publicity in order to enable all the students to take an informed decision on the admission. He points out that absolutely no reason is forthcoming why the State had to issue a mere press release and has not formulated any rules. He points out that in the absence of any rules, the action of the State cannot be justified. Despite the existence of the power to make regulations, the learned Senior Counsel points out that by a press release the entire system, which has been existing for decades, is sought to be changed. Relying on various aspects highlighted in the writ petitions like the fact that many students do not have internet access if they are in villages during the Covid time etc., he points out that the student should be given option for studying in their nearest colleges and that they cannot be at the mercy of the State in the allotment of the seats. He points out that other than giving a press release, which was mentioned in some papers, the State did not take any action whatsoever in giving wide publicity. Therefore, he questions the entire process.
Sri Damalapati Srinivas, learned Senior Counsel also argued the matter on similar lines and highlighted the practical difficulties which as per him are not at all answered by the State. He points out that any State 7 action without rules has been termed as an arbitrary exercise of power. Sri G.R.Sudhakar, learned counsel for the petitioners also raised similar issues and argued at length. Sri P. Durga Prasad supported the arguments. All of them questioned the need for this 'press release' and argued that the same is an arbitrary exercise of power which is not backed by any rule / regulation.
In reply to this, learned Additional Advocate General vehemently argues that in order to prevent illegal practices like collection of capitation fee etc., by certain institutions,the online system has been introduced keeping in view the interest of the students. It is submitted that if the student voluntarily goes to certain colleges they are being asked to pay higher amounts as fees and also capitation fee. Therefore, learned Additional Advocate General submits that in the interest of student the online admission is introduced. Learned Additional Advocate General in his own colourful language states that wide publicity was given "except for erection of hoardings". He also argues that the student still has multiple options to decide in which college he will study and that instead of going physically to the colleges he can exercise the very same option fromthe privacy of his home. Therefore, learned Additional Advocate General argues that there is no difficulty as projected by the petitioners. Learned Additional Advocate General also tried to explain to the 8 Court that the online system is not limited to five colleges and that the student can exercise multiple options from the safety of his house. He points out that same colleges to which the students can apply are available online. He also questions the locus of the students and states that they are merely a front for the institutions. Therefore, learned AdditionalAdvocate General seeks to justify the entire scheme.
This Court also heard another set of matters, in which online admission was introduced for degree courses. In that also similar arguments were advanced. COURT:
After hearing all the learned counsels, this Court notices that while the objective of the State to protect the interest of the students as expressed by the learned Additional Advocate General is laudable, the fact remains that no justification whatsoever is stated or is visible for changing the entire system by a press release. The press release was given on 20.10.2020 fixing the commencement dated as 21.10.2020 and the end date as 29.10.2020. Therefore, the scheme was kept open only for 9 days or at best 10 days. The students are directed to go to website, register themselves and then take their chances to get admission.
The argument of all the counselsof the petitioners in one aspect is uniform that adequate and wide publicity is 9 not given and no rules were framed to regulate the admissions. Learned Additional Advocate General relied upon the counter affidavit that has been filed and tried to justify the same. However, it is clear that no explanation is given for this lack of publicity. Mere holding of a press conference by the concerned officers or by the Board of Education cannot take the place of wide publicity. This crucial stage of students' career (+2 courses), will be foundation for his / her entire life. At this stage, the student must be given options which he can exercise carefully. He must be given all the options / choices necessary to make a reasoned decision. Accordingly, the decision he would take at this stage would have ramifications for his entire future and in a way for the entire country also. In the case on hand by fixing the nine/ten-day window and without any rules to back up the same, the student is left in the lurch. It is also stipulated in the counter that the allocation of the seats is only on the first come first service basis. Therefore, if a student fails to notice the press release and makes an effort to submit an application on 28thor 29th of October, by then he would have already lost his seat, particularly when the intake per year is reduced to 40 per class and is on first come first serve basis as per the counter affidavit. Therefore, there is a distinct possibility that a student will not get a college of his choice in this method. Equally 10 important is the fact that due to Covid-19 pandemic all the students of the qualifying examination (10th class) are declared as 'passed' by G.O.Ms.No.34, dated 14.07.2020. Therefore, there is no clear system of differentiating / distinguishing students by virtue of that marks. There is no percentage or abetter mark to decide who will get the seats. Everyone in the qualifying exam is declared "PASSED". The State admits in its counter in W.P.No.20072 of 2020 that it will be difficult to assess the qualifying marks. This problem isnot answered clearly. This Court also notices that various other aspects that are raised inthe writ affidavit:- the issue about the female studentsis highlighted in paragraph 16; underprivileged students is highlighted in paragraph 17;lack of adequate accommodation is highlighted in paragraph 18, the difficulty of interdistrict studies for female students is highlighted in paragraph 19; the lack of internet facilities is highlighted in paragraph 21. This Court finds from the counter affidavit that has been filed in W.P.No.20072 of 2020 that most of these issues are unanswered. Similarly, in the other Writ Petitions similar issues were raised. The State has not clarified about the availability of internet access throughoutthe length and breadth of this State and in the 13 districts. Thepermeationor penetration of the internet and the availability of the internet is not specified which could have answered this issue. If internet access 11 is not available or is very poor,the students will have difficulty in accessing the website and making their applications. The intervening holidays, the availability of modes of online payment etc., are all matters whichare not clear. Similarly, in W.P.No.22435 of 2020 certain practical issues were raised in paras 4 to 7 of the affidavit. If there are rules inexistence they could have provided for alternative methods of payment of fee or submission of application. If there is internet failure what is to be done is not clear. Some newspaper cuttings are also filed in W.P.No.20080 of 2020 about the difficulties being entertained by parents / students. While the newspaper reports are per se not evidence as per law still if the problems highlighted are correct / genuine there is a need for the State to address them. W.P.No.22104 of 2020 is filed questioning the online degree admissions vide G.O.Ms.No.34, dated 15.10.2020.
Wide publicity should have been given in all the forms of media, particularly, when the only known method / the long established practice prevalent over decades is being changed. The State should have framed rules or the regulations for online admissions and after giving wide publicity the State should have introduced these online admissions. By an overnight press release the entire existing system is sought to be changed. While the effort of the State as explained by the learned Additional 12 Advocate General is laudable and is based open a noble objective still in the matter of implementation this Court has to hold the State has not justified its action. The action of the State cannot be arbitrary. Emergency actions can be taken in emergency situations, but the State did not either plead or prove that there was an emergency situation necessitating the issuance of the press release for changing the entire system. The counter affidavit or the submissionsdo not lead to a conclusion that the State was forced because of certain peculiar circumstances to issue this "overnight" admissions process.
In fact, in W.P.No.20080 of 2020 a circular is placed on record. It is dated 03.03.2020 and is issued by the Secretary Board of Intermediate. It is addressed to his officers and they are directed to issue a circular about the proposed online admission. They are also directed to give wide publicity (wide publicity as per the circular). No material is placed to show that wide publicity was in fact given. The counter affidavit in W.P.No.2080 deals with the physical infrastructure of the petitioner's college etc. What is important is that in para 7 it is mentioned certain inspections were carried out and some colleges were denied "online permission". No details are furnished nor is it stated that this denial of online permission to some colleges is in the public domain to enable the students of 13 that area / district at least to make an "informed choice"
for their admission.
The State which has the expertise in this areaby conducting the online admission like EAMCET etc., should have framed the proper rules / regulations and then implemented the same. The absence of a rule or regulation is striking in this case. The practical fears and the apprehensions of discrimination / arbitrariness etc., could have been answered / negatived if rules are framed.
The students are at a very important stage of their career when they study +2 or what is called the Intermediate course. Their entire future hinges on this decision. They should have all the information that is needed to make informed; reasoned choices. The window of 9 - 10 days is not enough in the circumstances to enable a student to make his choice. The manner and method in which the application is to be made; the quantum of fees payable; a redressalmechanism, facilities for transfer between colleges etc., are not at all specified. In fact, except the press release nothing else is there on record. State action as per settled law should be reasoned; clear and specific. When a long standing practice which stood the test of time is sought to be changed it should be given wide and proper publicity. Rules of natural justice are a part and parcel of our system more so when the future / lives of lakhs of 14 students are involved. If at least rules are framed and are available for access this facet of the rule of natural justice can be said to be answered. But in the present case there is no rule / publicity or information about the new methodology. The following passages from Style (Dress Land) v Union Territory, Chandigarh and another2are relevant:
"11. Even the administrative orders and not (sic only) quasi- judicial are required to be made in a manner in consonance with the rules of natural justice, when they affect the rights of the citizens to the property or the attributes of the property. While exercising the powers of judicial review the court can look into the reasons given by the Government in support of its action but cannot substitute its own reasons. The Court can strike down an executive order, if it finds the reasons assigned were irrelevant and extraneous. The courts are more concerned with the decision-making process than the decision itself.
12. This Court in ShrilekhaVidyarthi (Kumari) v. State of U.P. [(1991) 1 SCC 212 : 1991 SCC (L&S) 742] held that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rules of law, the system which governs us, arbitrariness being the negation of the rule of law. Non- arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers must be for public good instead of being an abuse of power. Action of renewability should be gauged not on the nature of function but public nature of the body exercising that function and such action shall be open to judicial review even if it pertains to the contractual 2 (1999) 7 Supreme Court Cases 89 15 field. The State action which is not informed by reason cannot be protected as it would be easy for the citizens to question such an action as being arbitrary."
The rationale for the change should be justified and should be clearly visible. Else it has to be termed as arbitrary. In the opinion of this Court, the exercise of power by the State in this case is not supported by any reasons/justification. Hence, this Court is of the opinion that the batch of Writ Petitions are to be allowed. Accordingly, the Writ Petitions are allowed. There shall be no order as to costs.
For this academic year, it is directed that existing system of admission should be followed. It is left open to the State to frame clear / appropriate rules and regulations and thereafter introduce online method of admission, if it so desires, from the next academic year.Wide publicity and adequate advance notice must also be given for the same before it is introduced. The effort made by the State for the degree courses is supported by a G.O. with rules / regulations. Follow up action like helpline access; online admission committees etc., are formed in all the districts etc., such action is not there in the present case. The following lines from the judgment of the Hon'ble Supreme Court of India in Civil Appeal No.4060 of 2009 (Modern Dental College and 16 Research Centre and Ors., v State of Madhya Pradesh and Ors.,3) will be the appropriate post script for the case:
"53. ........ Right to be treated fairly and to get admission through a non-arbitrary, non-discriminatory, fair and transparent procedure is a fundamental right of the students under Article 14."
"70. ....... Regulations on admission process are necessary in the larger public interest and welfare of the student community to ensure fairness and transparency in the admission and to promote merit and excellence. Regulation on fixation of fee is to protect the rights of the students in having access to higher education without being subjected to exploitation in the form of profiteering."
As the Writ Petitions are allowed, the Miscellaneous Applications pending, if any, in these Writ Petitions shall stand closed.
__________________________ D.V.S.S.SOMAYAJULU, J Date:24.12.2020.
Note: Issue CC by Monday i.e. 28.12.2020 B/o Ssv 3 (2016) 7 SCC 353