Andhra HC (Pre-Telangana)
Kranth Sangram Parishath, Represented ... vs Sri N. Janardhan Reddy, Chief Minister, ... on 18 September, 1992
Equivalent citations: 1992(3)ALT99
JUDGMENT V. Sivaraman Nair, J.
1. This batch of 24 writ petitions - six of them-W.P.Nos. 8817,9221,9231,9824, 9825 and 10058 of 1992 filed by Associations of Students, six - W.P. Nos. 9661, 9731, 9843, 9852, 9946 and 10264 of 1992 filed by individual students, six W.P.Nos. 8592, 8698,9187,9809,9972 and 10687 of 1992 filed by aspirants for permission and the rest by individuals or Organisations interested in the cause of education, raise questions of concern about what the petitioners call crass commercialisation of professional education. Counsel for some of the respondents prefer the phrase 'privatisation of higher education'. They claim this to be the natural corrolary of liberalisation of Indian economy from the shackles of excessive control by the State, which is constrained by acute lack of resources for further development of institutions of technical and professional education. We heard the matter at length and are now delivering two judgments in two parts comprehending all the complex questions which were raised before us. Some of the petitioners have raised only aspects of validity of Section 3-A of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act 5 of 1983, which was introduced by State Act 12 of 1992 and the Rules made thereunder. The other petitions involve challenge against the actions taken by the State and the educational agencies pursuant to that Act and the Rules. Three writ petitions are filed by persons Societies which would have filed applications for establishing Medical/ Engineering Colleges, but could not do so because there was hardly reasonable time to comply with the onerous conditions insisted upon by the Government in G.O.Ms. No. 198 and G.O.Ms. No. 250 and therefore, seek orders to quash those and other consequential orders. Three other writ petitions are filed by unsuccessful applicants. In this part of the judgment, we deal only with 9 Writ Petitions in which the separate questions apart from the validity of the statute and the Rules arise for consideration.
2. Petitioners in W.P.Nos. 9824 and 9825 of 1992 have sought to quash the orders granting permission to open 12 Medical Colleges and 8 Dental Colleges. They produced only an unnumbered Government Order dated 27-7-1992 along with the Writ Petitions. The Advocate General has produced all the relevant orders. Except the numbers - G.O.Ms. 321 to 340 and the names of the educational agencies - the orders are virtually the same.
3. Three aspirants for establishing Medical and Dental Colleges and two for Engineering Colleges are before us. Only two of them for Medical Colleges in Hyderabad /R.R. District and one for Engineering College in Nellore District had filed applications.
4. Petitioners in W.P. No. 8592 /92 have sought the issue of a writ of certiorari to quash G.O.Ms. No. 250 dated 22-5-1992. They had not filed applications, allegedly due to lack of reasonable time between the date of promulgation of the Rule and the last date for submission of applications.
5. W.P.Nos. 9809/92 and 10687/92 are filed by applicants for permission to establish Medical Colleges. In W.P. No. 9809/92, petitioner has sought issue of a writ of certiorari to quash the permission accorded by respondent No. 1 to respondents 3 to 14 and to declare that the petitioner is entitled for permission to set up a private unaided medical college. In W.P. No. 10687/92, petitioner has sought a direction to respondent No. 1 to grant permission to run a private medical college in pursuance of G.O.Ms. No. 250.
6. In W.P. No. 8698/92, the relief sought is a declaration that the notification bearing No.E2/25801 /91 dated 20-5-92 issued by the 2nd respondent is arbitrary and illegal. In W.P. No. 9187/92, petitioner has sought a declaration that G.O.Ms. No. 198 dated 20-5-1992 and actions pursuant thereto are illegal, void and ultravires. In W.P. No. 9972/92, the relief sought is a direction to consider the petitioner's application and to grant permission to commence Engineering College at Kandaleru, Nellore District.
7. W.P. No. 9946/92 is filed by a student who had appeared in the EAMCET test and had secured rank No. 246 among minority students. He seeks a direction to the respondents to admit him into the respondent-Engineering college, by reason of his rank among minority students who have passed the EAMCET test on the basis of merit without reference to Section 3-A of Act 5 of 1983 as amended by Act 12 of 1992.
8. The question of constitutionality of Act 12 of 1992 and Section 3-A which was introduced thereby in Act 5 of 1983 has been dealt with at some*length in the other Judgment. The points which remain for consideration are the submissions contained in the above Writ Petitions i.e. bias and other circumstances vitiating the orders granting permission to establish the colleges as specifically urged in W.P.Nos. 9824/92 and 9825/92. We will begin with the last two petitions where all grantees are parties and in which all concerned have filed detailed pleadings.
9. W.P. No. 9824/92 and 9825/92 contain substantially similar submissions, petitioners are Organisations of students represented by their Office Bearers. They claim to be interested in opposing the grant of permission to establish 12 Medical and 8 Dehtal Colleges in the State, 50% of the seats in which are proposed to be filled up by admitting students without reference to EAMCET ranking and constitutional and statutory reservations. They have alleged that the lst respondent granted permission for establishment of Medical and Dental Colleges due entirely to extraneous considerations. It is specifically alleged that the 5th respondent/Chief Minister was personally interested in Janapriya Educational Academy (respondent Nos. 8 and 22) of which his brother is Secretary and his wife is Treasurer. Though petitioners have alleged that grant of permission to respondents 6,7 and 9 to 25 also is the product of influence of extraneous considerations, we are not inclined to entertain that submission in the absence of better particulars of such extraneous considerations. We do not think it necessary to investigate such allegations due to the fact that the persons against whom some sweeping allegations are made, have not been impleaded as party-respondents.
10. Respondents who have filed counter affidavits have controverted those general allegations. They have brought on record a lot of materials justifying their selection for grant of permission to establish Medical and Dental colleges. They have also placed before us some statistical data in support of their submission that a better cost-efficient fee structure alone can salvage higher/ professional education in the State in view of resource-constraints gripping the State and the need to fix priorities in favour of development and poverty alleviation rather than for higher education which is a luxury. A further inquiry into the assertions and counter assertions on these aspects particularly the vague and nebulous area of mala fides does not seem to be within the scope of these proceedings.
11. Petitioners have in their affidavits, which are almost similar, stated that the 5th respondent went out of his way to favour the 8th and 22nd respondents, of which his brother is Secretary and his wife is Treasurer. It is asserted that it was the Chief Minister who decided the issue finally. In paragraph 13 of the affidavit (W.P. No. 9824/92) it is asserted that:
"This action is vitiated by personal mala fides of the Chief Minister which is based on corrupt and dishonest considerations, firstly, since he himself is associated with lanapriya Educational Society which has been granted permission to set up a. Medical and Dental College at Nellore."
Paragraphs 14 and 15 allege the involvement of the members of the family of the 5th respondent in the attempt to establish Medical and Dental Colleges.
12. The 5th respondent has filed a counter affidavit. He dealt with the above assertions in paragraph 6(c) of his counter affidavit in the following terms :
"6(c): The allegations in paragraphs 13,14 and 15 are not true. I am not associated with Janapriya Educational Society as alleged. The alleged press statement is not accurate. The N.K.B.R. Institute of Science and Technology (an Engineering College) is run by Harijana Vidyarthi Udharana Sangham at Vakadu. The plea of the Janapriya Educational Society at Vakadu is owned by my family earlier is not true. The allegation that Janapriya Educational Society got permission to start a Medical and Dental college due to my personal interest and involvement is not true. The Expert Committee recommendations were accepted in toto. I deny that M. Subbarami Reddy is my confidant or my unofficial business partner as alleged by the petitioner."
13. The Principal Secretary to Government, Health, Medical Family Welfare Department, has filed a counter affidavit on behalf of the 1st respondent in W.P. No. 9825/92. He denied the allegations contained in paragraph 13 of the petitioner's affidavit as baseless. He stated that:
"An expert committee was appointed for Medical and Dental Colleges. Based on the recommendations of the expert committee, these institutions were selected imposing a number of conditions. In regard to other colleges, no orders have been issued. "
14. In paragraph 14 he stated that:
"The Janapriya Educational Academy was registered only on 11-5-1992. The President of the Society is Dr. D. Bhaskara Reddy and its Secretary is Sri N.Padmanabha Reddy."
In paragraph 29 of the counter affidavit it is stated that:
"the decision to start private colleges was taken by the Cabinet. The actual choice was made by the portfolio Minister and the Chief Minister."
15. It is therefore, clear from the pleadings that the 8th respondent-Society which was formed on 11-5-1992 has as its Secretary-Sri N. Padmanabha Reddy, who is admittedly the brother of the Chief Minister. From a perusal of the Memorandum of Association of the 8th respondent Academy/Society, which was produced for our perusal, and which we have marked as Ex.X-1, it is clear that the Treasurer of R-8 and R-22 is Smt. N. Rajyalakshmi, wife of the 5th respondent. The question of bias which the petitioners urge has to be considered in the light of the above facts which are evident from the record. We have also ascertained from counsel and the records and were assured that the applications of respondent Nos. 8 and 22 on behalf of Janapriya Educational Academy for permission to start the new colleges were signed by Sri Padmanabha Reddy, brother of the 5th respondent.
16. Bias of the decision-makers has been considered to vitiate the decision, be it that of judges or administrators. It is hardly a defence to say that the decision-making was not strictly judicial and standards applicable to nonjudicial process should be different. Nor does it seem to us correct to assert that bias cannot be imputed to an individual, some of whose relatives are members of a Society, because the latter has got a personality different from its constituents.
17. The Advocate-General referred us to a few decisions to bring home the point that bias vitiates only judicial or quasi judicial determinations and not pure administrative decisions - Gollapalli Nageswara Rao v. State of A.P., and APSRTC v. Satyanarayana Transport, . He also submitted that the question of bias is relevant only in cases where a person who suffers as a direct consequence of the biased decision complains and not otherwise. He submitted further that the relationship in the present case of two office bearers of the Academy to the 5th respondent is far too distant a factor to rest a finding on that the decision is vitiated by bias. He also urged that we need not consider the challenge based on bias vitiating the impugned orders in petitions that the two organisations or its Office Bearers have filed, since they are not directly affected/or prejudiced thereby, he submitted further that the Writ Petitions which contain general and vague assertions cannot be the basis for starting an investigation based on a complaint of bias. Advocate General also submitted that there was only one application for grant of permission to establish medical and dental colleges at Nellore, and the choice of the 8th and 22nd respondents who were the only qualified applicants cannot be faulted. He submitted further that only a competing applicant can be prejudiced by a biased decision and he alone can raise the question of bias. Sri P. Ramachandra Reddy, who appeared for respondents 8 and 22 also made submissions generally on these lines.
18. We have given our anxious thought to these submissions. We find that the basic facts are not in controversy. The wife and brother of the 5th respondent are Office Bearers of the 8th and 22nd respondents. According to the bye-laws and Memorandum of Association, that Society was registered with a membership of 7, on 11-5-1992. Two out of the seven are close relations of the 5th respondent. The powers and functions of the Secretary and Treasurer of the Society are extensive as is evident from Ex.X-1. The applications on behalf of respondents 8 and 22 were signed by the brother of the 5th respondent. The Government is said to have formed an Expert Committee to consider all those applications. It is alleged that the selection was made on the basis of its report. It is asserted that the final choice was made by the portfolio Minister and the 5th respondent. The question is whether on the above facts, it is open to a person other than an. applicant to complain about bias of the decision-maker in choosing the above two respondents for grant of permission to establish the colleges.
19. It is of paramount importance that decisions affecting the lives and liberties of citizens are rendered by people who are impartial, act fairly and bring to bear a dispassionate and objective consideration to the issues involved. "It is of fundamental importance" as Lord Hewart C.J., stated in R. v. Sussex Justices, ex parte Me Carthy, 1924(1) KB 256 "that justice should not only be done, but should manifestly and undoubtedly be seen to be done". This was elaborated by Denning L.J., in Metropolitan Properties Co. (FGC) Ltd. v. Lanon, 1969 (1) QB 577 as follows:
"It (the Court) does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or Chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did. in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. justice must be routed in confidence: and confidence is destroyed when right-minded people go away thinking "the ludge was biased."
20. It is instructive to note that one of the grounds to disqualify the respondent who sat as Chairman of a Rent Assessment Committee was that his father had a case pending against the plaintiff company. Lord Denning invalidated the decision of the Committee holding:
"In this case he (the respondent) was not a tenant, but the son of a tenant. But that makes no difference."
21. The heresy that a public authority acting administratively - in the sense of otherwise than judicially - was beyond the control of courts was shot down in the common law countries in Re HK (as infant), 1967 (2) QB 617. That was followed by Schmidt v. Secretary of State for Home Affair, 1969(2) Ch. 149 In India the obsequies of the theorty of wholesale exemption of administrative determinations from scrutiny of courts was performed in Kraipak v. Union of India, AIR 1970 SC 15 when Hegde, J. speaking for a Constitution Bench observed:
"The dividing line between an administrative power and a quasijudicial power is quite thin and is being gradually obliterated... In a welfare State like ours, it is inevitable that the organ of the State under. our Constitution is regulated and controlled by the rule of law. In a welfare State like ours, it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially, in essence, is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years, the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi judicial power" and "If the purpose of the rules of natural justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries. Often times, it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasijudicial enquiry."
22. These principles were reiterated in M/s S. Mahapatra & Co. v. State of Orissa, as applicable to exercise of quasi-judicial as well as administrative power. The Court observed that:
"There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such non-official author - members from resigning from the Committee on the ground of their interest in the matter."
23. The theme of the decision Mohinder Singh Gill v. Chief Election Commissioner, was the same as in Kraipak (7 supra), Krishna Iyer, J., speaking for the majority held:
"Once we understand the soul of the rule as fair play in action - and it is so - we must hold that it extends to both the fields. After all, administrative power in a democratic set up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice."
24. As a matter of fact, in Gullapally Nageswara Rao (1 supra) and APSRTC (2 supra), the Supreme Court upheld the decisions of the concerned Ministers approving Schemes of nationalisation under Motor Vehicles Act proposed by. the Transport Department/Undertaking for the reason that the former was not part of, but outside the Department, and that bias of the Department could not be transposed to the Minister. Those decisions do proceed on the basis that if the Secretary or the Minister himself proposed the Scheme and the same person ultimately approved the Scheme overruling objections of Transport Operators, that order would be vitiated by bias. Two of us in two Division Bench decisions had occasion to consider the same question of bias with reference to the above two and other decisions, V. Sivaraman Nair, J. in W.P. No. 10263/90 and Batch dated 25-9-91 and M.N. Rao, J. in B. Narasimhulu v. Government of A.P., 1990 (3) ALT 502. We in entered the same finding that the association of the Department or its Secretary in the initiation of proceedings cannot affect the final decision taken by the Minister in-charge of the Department.
25. We should note here a submission which counsel for the petitioner made with specific reference to the decision in M/s Mahapatra (8 supra) and the Rules of Business of the State Government. Rules 5 and 7 of the above Rules provide that if any member of the Council of Ministers is interested in any matter coming up for consideration, the file may be referred to another Minister as may be nominated. Counsel submits that if the 5th respondent was fair-minded as he claims, he should have nominated another Minister to take a decision on the applications. We are not persuaded to dismiss this submission out: of hand.
26. We, therefore, hold that it makes little difference to the application of the principles of natural justice, of which "no person shall be a judge in his own cause" is an important one, to the determination of disputes by mart or women in authority - be it judicial, quasi-judicial or administrative. The only limitation shall be a provision in a statute excluding natural justice. Even such a provision cannot outlive a challenge on constitutional grounds unlike in England; where the Parliament is supreme, whereas in India the Constitution is.
27. Advocate General submitted that no lis is involved in the grant of permission to establish medical colleges and therefore, the principles of natural justice including bias, cannot apply to the decision rendered by the 1st respondent. It is too late in the day to urge this contention after Kraipak (7 supra). The selection of the best from among eligibles for appointment in the Indian Forest Service, which was considered in that decision, also did not involve a lis in the conventional sense. There was no formal proposal from one party, opposition by the other and a decision on a consideration of both. But/there was a duty to assess the eligibility of all aspirants and also to choose on a comparison of their merits and demerits on the basis of relevant and material considerations. That involved screening away the ineligibles, choice of the best and rejection of others who did not make the grade. Any process of selection when aspirants are many more than what can be granted, involves the process of comparison, elimination and selection. Every such proceeding invites in substance quasi- judicial process, particularly when people seek to assert their rights constitutional legal or otherwise; and selection involves rejection of such claims of some of them. If conformity with tradition is obligatory, the invocation of the power to grant the licence or privilege or permission which regulates the right may be treated as a proposal. It is not as if every such proposal shall be granted. for its compliance with the prescribed formalities, if there is no competing applicant. It shall still be scrutinised to ascertain whether it is desirable that the sole applicant may or may not be granted the permission. Every such proposal may be treated as an opposition to similar proposal if there are other applicants. The selection of the required number of applicants and rejection of the others is the decision in either case. If the only applicant is refused permission or licence, that decision is also quasi-judicial. Like wise, the grant of permission to the sole applicant may in certain circumstances, be exposed to scrutiny and review for non-compliance with the statutory guidelines or being opposed to public interest. In all those cases, conventional requirements of quasi-judicial proceedings will be satisfied. It is idle to contend, after Kraipak (7 supra) that a process of decision-making involving ascertainment whether statutory requirements are satisfied, whether public interest is furthered or prejudiced and choice on comparison of competing claims of aspirants, who are larger in number than the positions to be offered, including rejection of a few - is purely administrative and therefore, beyond the scope of natural justice and bias.
28. It is well to remember that the A.P. Education Act, 1982, under which the Government invited applications for grant of permission to establish Medical, Dental and Engineering colleges, is a statute that conferred a statutory right on educational agencies to apply for such permission. Sections 20 and 21 regulate the exercise of that statutory right. One of those considerations is the educational needs of the locality. Suitability of the land and building, the teaching staff and conditions of their service, financial resources of the applicant etc., are some of the other relevant considerations. The competent authority has to consider the applications with reference to the above and other guidelines provided in those provisions. What the Government, therefore, had before it when it took the decision to grant permission, were applications for exercise of the statutory right by educational agencies. They were more in number than the number of colleges which the Government decided to grant. That did involve an assessment on the basis of the objective criteria which the A.P. Education Act, 1982, and the Rules including G.O.Ms. No. 250 and 198 of 1992 have provided. It was obviously for the purpose of ascertaining whether the applicants did comply with those criteria and who among them complied better that the Government appointed an Expert Committee. All the elements of a quasi-judicial determination were thus present - a lis in the sense of the applications - which were proposals that incidentally involved opposition to the proposals of others and an obligation to render a decision on the basis of objective standards prescribed by the statute to deal with and dispose of attempts by educational agencies to assert their statutory right.
29. Advocate General submitted that there were no applications for establishment of Medical and Dental Colleges at Nellore, except those from respondents 8 and 22, and therefore, there was no opposition to those applications. He therefore, submitted that since there was no need to compare that applicant with any other aspirant, and there was no other application to be rejected, no quasi-judicial process was involved in granting permission to the above two respondents. He also submitted that only a rival who has lost, can complain of bias of the decision-maker and mere was no rival to those respondents. In other words, none other, much less a public interest litigant even assuming the petitioners in W.P.Nos. 9824 and 9825 of 1992 qualify as such - can challenge the decision in favour of respondents 8 and 22 on the ground of bias. These submissions were reiterated by Sri P. Ramachandra Reddy, counsel for respondents 8 and 22.
30. We are not impressed by either of these submissions. We have found that the applications by the educational agencies have to be tested for their compliance with the statutory conditions and obligatory standards. The Government has to test each applicant on the crucible of conformity with objective standards prescribed by the statute, even if there was no competing applicant. Even if there was only one applicant for one college to be sanctioned, that application can as well be rejected, if it does not comply with the objective standards. The decision as to compliance rested with the Government. We are of the view that even if there was no competing applicant, the Government had an obligation to conform to the standards fixed by the statute and in public interest in dealing with the sole applicant. That determination naturally attracts the principles of natural justice. It was stated with incomparable felicity in Guptan v. State, 1963 KLT 1031" by Chief Justice Menon of Kerala High Court that "all wielding of power shall be held in the leading strings of fair procedure." Grant of permission to establish an educational institution is undoubtedly a "wielding of power". Fairness in action is an appeal to the sober second thoughts of every administrator charged with decision-making in preference to first impulses to favour the friendly. Refusal to heed to that appeal should result in invalidation of the decision.
31. We draw support from decision in Visakhapatnam Co-op. M.T. Limited v. Bangarraju, and Annamalai v. State of Madras, AIR 1957 A.P. 739 decided under the Motor Vehicles Act. The Collector was ex-officio Chairman of one of the applicants as also ex-officio Member of the Regional Transport Authority which granted permit to that applicant. Rajamannar, C.J., speaking for a Division Bench, held the decision to be a nullity due to bias. In Annamalai, AIR 1957 A.P. 739 one applicant, owner of a proprietary transport concern, was appointed as a Member of the Regional Transport Authority. He transferred his permit to his brother-in-law and thereafter, granted stage permit on the very application which he had filed. Umamaheswaram, J. declared that order a nullity due to bias. That decision was affirmed in Writ Appeal No. 6/1956 by a Division Bench consisting of Subba Rao, J. (as he then was) and Viswanatha Sastri, J. These decisions make it amply clear that bias vitiates, notwithstanding the fact that the aspirant only represented an institution while his kin decided in favour of that institution.
32. We have to consider the second submission on the standing of the petitioners in W.P. No. 9824 and W.P. No. 9825 of 1992 as claiming to represent the student community of the State who are deeply concerned with what they call "government sponsored commercial venture to sell professional education to the highest bidders". That has to be done in the light of the decisions of the Supreme Court and this court on public interest litigations. Advocate General referred us to Sri Sachidan and Pandey and Ors. v. State of West Bengal, AIR 1989 SC 1109 (Paras 58 and 60) and S.P. Gupta v. President of India and Ors., . In the former decision, the court cautioned about the need to lay down guidelines to restrict the inflow of spurious causes as public interest litigation, but did not lay down any rule that only a person aggrieved, can file a Writ Petition or that class-action is taboo. There were different opinions expressed by the Judges, but there was happy unanimity that a lawyer is a person interested to maintain an action to screen and scan the process of appointment of judges. Bhagwathi, J., observed in S.P. Gupta, that:
"The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far embedded in the womb of the future, are beginning to be born."
The Court also held :
"But if no specific injury is caused to a person or a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action by enforcing the performance of the public duty. If none can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or the Public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it."
33. The question of locus standi came up for consideration of the Supreme Court on a number of occasions. Speaking for the majority of the Constitution Bench in Fertiliser Corporation Kamgar Union v. Union of India, AIR 1981 SC 344 Chandrachud, C.J., held that:
"But in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus standi to initiate a proceeding, be it under Article. 226 or under Article 32 of the constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations."
34. In the concurring judgment on behalf of Bhagwati, J., and himself, Krishna Iyer, J. articulated the transformation in the court's approach to locus standi and public interest litigation in the following words:
"We have no doubt that in competition between courts and streets as dispenser of justice, the rule of law must win the aggrieved person for the law court and wean him from the lawless street. In simple terms, locus standi must be liberalised to meet the challenges of the times. Ubi jus ibi remedium must be enlarged to embrace all interests of public minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promoto justice in its time facets."
He held further in paragraph 48 as his concluding caveat:
"If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But if he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of a busy body, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I therefore, take the view that the present petition would clearly have been permissible under Article 226."
34. (a) In K.R. Shenoy v. Udipi Municipality, the Supreme Court upheld the 'Special and substandial interest of the rate payers' to seek enforcement of statutory duty by public body by compelling compliance with the public authority's statutory obligation to stop illegal construction.
35. In Dr. P. Nalla Thampy Thera v. Union of India, the Supreme Court commended the effort of the petitioner who filed a Writ Petition which was "essentially in the nature of a public interest litigation to voice the grievance of the community availing the services of Indian Railways."
36. Krishna Iyer, J. in A.S.K. Sangh (Ely.) v. Union of India, rejected the objection to grant of relief in a petition which an unregistered trade union had filed under Article 32 of the Constitution of India. He observed :
"Whether the petitioners belong to a recognised trade union or not, the fact remains that a large body of persons with a common grievance exists and they have approached the Court under Article 32........We have no hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved 'and 'individual litigation' is becoming obsolescent in some jurisdictions."
37. In Chaitanya Kumar v. State of Karnataka, the Supreme Court observed;
"The Court cannot close its eyes and persuade itself to uphold publicly, mischievous executive actions which have been so exposed. When arbitrariness and perversion are writ large and brought out clearly, the court cannot shirk its duty and refuse its writ. Advance of the public interest and avoidance of the public mischief are the paramount considerations. As always, the Court is concerned with the balancing of interest, and we are satisfied that in the present case that the High Court had little option but to act as it did, and it would have failed in its duty had it acted otherwise and refused to issue a writ on the ground that the allegation of personal bias against the Chief Minister was false. Had that been done, the public mischief perpetrated would have been perpetuated. That is not what courts are for."
38. In Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosav, , the Supreme Court stated that:
"the petitioner might have moved in his private interest, but enquiry into the conduct of the examiners of the Bombay University in one of the highest medical degrees was a matter of public interest."
The Court proceeded further to observe -
"Such state of affairs having been brought to the notice of the Court, it was the duty of the Court to the public that the truth and the validity of the allegations made be inquired into. It was in furtherance of public interest that an enquiry into the state of affairs of public institution becomes necessary and private litigation assumes the character of public interest litigation and such an enquiry cannot be avoided if it is necessary and essential for the administration of justice."
39. In yet another decision in Dr. D.C. Wadhwa v. State of Bihar, , the Supreme Court repelled the objection raised by the respondents that the petitioners had no locus standi to maintain a Writ Petition. The Court observed:
"He has sufficient interest to maintain a petition under Article 32 even as a member of the public, because it is a right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions."
We do not propose to multiply authorities.
40. The above decisions, which are a few of the many, on the scope of Public Interest Litigation, locus standi and community actions, make it abundantly clear that the students as a class or their organisations or any of them as representing the community are/is entitled to invoke the jurisdiction of this court under Article 226 of the Constitution of India complaining against illegalities and improprieties alleged to have been committed in establishing colleges of higher/technical education. We find that the students as a community or their organisations and the individuals representing the community have the necessary locus standi in their attempts to expose any infirmity in the decision making process including the bias of the person who decides issues having their reverberations in matters vitally affecting their interests.
41. We find from the pleadings and the Government file which the Advocate General produced before us mat it was the approval of the 5th respondent as Chief Minister that gave finality to the decision to grant permission to establish Medical and Dental Colleges, among others, to respondents 8 and 22, of which his close kin - his brother and wife - were the moving spirits. He would, in fairness, have avoided associating himself with that decision as he could have done under Rules 5 and 7 of the Rules of Business. His association with that decision cannot but have the effect of vitiating the decision for unfairness due to bias.
42. We are not persuaded to accept the submission urged fervently by the Advocate General that in a public interest litigation - assuming W.P. No. 9824/ 92 to be one such - the petitioner is not entitled to seek interference with the decision allegedly vitiated by bias. We are unable to accept this highly technical plea, once we find that the impugned act amounted to mischievous executive action as in Chaitanya Kumar (19 supra). Once such a perversion of the executive power is exposed to its gaze, the Court cannot shut its eyes or shirk its duty. As was held in Shivajirao Nilangekar Patil (20 supra), it becomes necessary and essential that the Court countenances the complaint and grants relief, since even private litigation assumes the character of public interest litigation.
43. The Advocate General urged emphatically that no relief can be granted and the writ petition shall not even be entertained, if it is based entirely on news paper reports. He referred us to the decisions of the Supreme Court in M/s. Sukhwinder Pal Bipan Kumar and Ors. etc., v. State of Punjab, and Lakshtni Raj Shetty v. State of Tamil Nadu, . Counsel for petitioner referred us to B. Prabhakar Rao v. State of A.P., AIR 1986 SC 211 to the effect that an uncontroverted news paper report can, by itself, be the basis of relief in a petition under Article 226 of the Constitution. We have, adopted the golden mean of eschewing either of the above two extremes. We have proceeded only on the basis of pleadings and the record.
44. Advocate General submitted that the writ petition contains irresponsible assertions of serious nature and the original petition containing such irresponsible, vague and general assertions cannot be countenanced. He referred us to the decisions of the Supreme Court in Royappa v. State of Tamil Nadu, and certain passages from Sukhwinder Pal, . We do not propose to enter this controvertial region for the reason that we are not basing our decision on. any allegations of mala fides. We have made the position clear even at the commencement of the judgment.
45. This takes us to the question about the validity of the decision of the State Government granting permission to establish 12 Medical and 8 Dental Colleges at a stretch. The chronology of events leading to the order as disclosed by the pleadings is very relevant. Act 12/92 introducing Section 3-A in Act 5/83 was enacted on 15-4-1992. Thereafter, most of the Societies which filed applications were registered, the eighth respondent having registered itself on 11-5-1992. CO.Ms. No. 250/92 was promulgated on 22-5-1992 under Sections 20 and 99 of A.P. Education Act, 1982. According to the recitals contained in the report of the Expert Committee, that Committee was constituted on 6-6-92. It was in the mean time that the Government issued notifications on 25-5-1992 and 28-5-1992 inviting applications for permission to establish Medical, Dental and Engineering Colleges. Last date for submission of applications was fixed as 8-6-1992. There was hardly fifteen days from the date of promulgation of the Rules to the last date fixed for filing applications. The relevant Rules required the applicants for permission to establish Medical Colleges, to depositan amount of Rs. 1,00,00,000/ -. They were also required to furnish Bank Guarantee for another Rs. 1,00,00,000/ - and to produce evidence of financial liquidity to the extent of Rs. 4,00,00,000/ -. These had to be done before 8-6-1992. On 17-6-1992 the Government took a decision that government land, wherever available, would be allotted to applicants at the prevailing market price, for establishment of Medical/Dental Colleges. Members of the Committee conducted spot-inspection of the land and other facilities offered by the applicants from 18-6-1992. The Committee formulated its guidelines on 28-6-1992. It submitted its report on 26-7-1992. On the same day, the Health Minister saw and signed the file without expressing any opinion one way or the other. The Chief Minister on 27-7-1992, approved paragraph-5 of the Government file which contained the names of the 20 grantees for permission to open Medical (12 applicants) and Dental (8 applicants) Colleges. The note-file does not indicate that except the report of the Committee, there was any other material justifying the order of the State Government. As a matter of fact, both the first and fifth respondents have asserted in their counter affidavits that the Government only accepted the report of the Expert Committee in toto. In other words, reasons for the order are those contained in the report. The Government has taken the position that its order may stand or fall on the validity of the report of the Expert Committee.
46. We have seen that the State Government as also the fifth respondent, have asserted that they accepted in toto the report of the Experts' Committee. We had occasion to peruse the report which was placed before us in two instalments. The first one which the Advocate General produced, turned out to be a xerox copy of what was stated to be the report of the Committee with materials leading to that report. Thereafter, when this was pointed out, the Advocate General produced what was called the original Report. We have perused these two reports in the presence of counsel for petitioners in WJP.Nos. 9824 and 9809 of 1992 and Sri Krishna Koundinya, Special Government Pleader, representing the Advocate General who deputed him. Counsel for the petitioners pointed out a large number of discrepancies between those reports. We do not propose to go into the details of such discrepancies. Suffice it for us to say that there is considerable force in the submission of counsel for petitioners that the report produced earlier is not an exact reproduction of what is now claimed to be the original which the Advocate General has produced later. We do not, however, propose to rest our conclusions on this aspect alone. We will revert to this later.
47. In the Government file, which contains the decision resulting in the impugned orders, what we find is only the concluding portion of the report captioned "Report of the Committee appointed by the Government of Andhra Pradesh to scrutinise the applications for the establishment of unaided private Medical/Dental Colleges in the State of Andhra Pradesh". That report was signed by the three members on 26-7-1992. We have compared that portion of the report with the corresponding portions in the two copies of the report referred to above. They are exact reproductions of each other. The concluding portion of the report was seen by the Minister for Health on 26-7-1992. On 27-7-1992 the Chief Minister endorsed: "Para 5 approved." That para contains the names of 12 and 8 grantees respectively of permission to start medical/ dental colleges. We also find an endorsement, at the bottom of the twelve grantees of permission to establish medical colleges, as follows :
"For future Church of South India, Medak (not to be included in the proceedings)."
We have seen that the report which the Health Minister and the Chief Minister saw purports to be a summary of the conclusions arrived at by the Experts' Committee. No other material is seen to have been placed before them.
48. There is serious criticism that there was actually no inspection by the Experts' Committee of the facilities offered by the various applicants and the evidence relating to compliance with the provisions prescribed in G.O.Ms. No. 250 dated 22-5-1992. Some instances were sought to be illustrated by counsel, particularly counsel appearing in Writ Petition No. 10687 of 1992 (Bhagavan Mahaveer Hospital Medical Society) and W.P. No. 9809 of 1992 (St. Paul's Education Society, Hanamkonda). Reference was also made to the discrepancies between the spot inspection reports, scrutiny of those reports and the final recommendations. Some such instances are those in regard to the applications of (1) Rajaraja Narendra Academy of Science and Technology (R 6), (2) Indoor Medical Education Society (R 7), (3) Madugula Kistha Reddy Memorial Education Society (R 10) and (4) Sidhartha Academy of General and Technical Education (R21).
49. In Part II of Summary Sheets of Applicants the comment about the enclosures relating to financial liquidity of the 6th respondent is as follows:
"Comment : The above letter from the Bank is not a substitute for possession Rs. 04.00 crores worm of liquid assets".
The following remarks were offered thereafter:
"Remarks:- The Society has also not indicated whether it would be using the facilities of the Government Hospital nor furnished any undertaking in that respect.
All other formalities as per Rules have been complied with."
In respect of 7th respondent, in the inspection report after local inspection of the land offered by the 7th respondent which appears at page 89 of the Report of the Experts' Committee (Item-6), it is stated as follows:
"Indur Medical Educational Society, Nizamabad. Land 15.00 K.Ms away from Nizamabad town on Bodhan road. Wet land. Sugar cane cultivation. Road side location.
Remark:- Very conjested and polluted (Foul smell during sugar cane crushing season) Temporary facilities in other Educational Institutions." The summary of application of Respondent No. 10 contains the following comment:
"Comment:- This is no substitute for a Bank Guarantee for Rs. 4.00 crores guaranteeing due performance of the commitment by the Society. All other documents as required by Rules (Gazette Notification) have been furnished."
The local inspection report which appears at Page - 64 the relevant portion of which about the land is as follows :
"The land has got access to the main road but the ownership is disputed and has to be carefully verified."
49 (a). Summarising the conditions above, it is not ideally suitable to locate Dental Colleges or institutions. The comment and remarks in respect of Respondent No. 21 in the summary of applications at page 45 Part II, is as follows:
"Comment:- The above enclosures appear to have been furnished in lieu of the Rs. 80.00 lakhs requirement, This cannot be accepted. (3) Sale Deeds (Registered) in respect of 10 Acres - 48 Cents of land. Remarks:- The requirement of liquid assets to the tune of Rs. 80.00 lakhs has not been properly met."
50. It is a mystery as to how, in the light of the above comments and remarks in the inspection report, the Committee recommended grant of permission to these institutions. In the Note on aided-private Medical and Dental Colleges, Item-9 relates to Raja Raja Narendra Academy of Science and Technology. No reference is made to the comment on the summary of applications to the effect that financial liquidity as prescribed was not satisfied. Item-2 in the Note relates to Respondent No. 7. There again, there is no reference to the comments in the inspection report that the land was not suitable for establishing the College. Item-12 relates to Respondent No. 10. Yet there again, no reference was made to the inspection report. The claim of 21st respondent was examined at page101 of the file, No reference was made to the comment and remarks which we have extracted above. We do not propose to multiply such instances.
51. One of the files which were handed over to us relating to the 7th respondent contains a letter dated 4-8-1992 from the Principal Secretary to Government, Home, Medical and Family Welfare Department to Sri A. Padmanabha Rao, Director of Medical Education who was one of the members of the Experts' Committee enclosing a letter of one Sri T. Venugopal Reddy. He requested that the record relating to the 7th respondent may be sent along with the remarks of the latter on the petition. Copy of a letter dated 5-8-1992 of Sri Rao, Director of Medical Education is in the file. On a reference to the petitioner, Sri Venugopal Reddy, Sri Rao stated :
"... Whether M/s. Madugula Kista Reddy Memorial Educational Society (M.K.R.M.E. Society) has or has not colluded with late Sri Anjaiah's heirs and produced make-believe documents as alleged in the representation can be proved only after a thorough probe and enquiry into the matter. In view of the legal niceties involved in the matter, I am of the opinion that the relevant documents may be sent to the Law Department of the Government for its views. An enquiry into the claims and counterclaims of the concerned parties will be helpful in bringing out the facts concerning the title, possession etc., of the land. I am herewith enclosing the original application (in the form of a bound book) of M /s. M.K.R.M.E. Society."
52. Needless to state that these four were among the grantees of permission to establish Medical/Dental Colleges. We do not propose to multiply such instances. There are other irreconcilable discrepancies between the spot inspection reports, the alleged summary of such reports and the conclusions based thereon which alone were forwarded to the State Government. Suffice it for us to say that these discrepancies justify in ample measure the criticism that the Committee would not have brought to bear a dispassionate consideration collectively to the applications of the institutions.
53. One other, important factor which is to be noticed is that in the list of applicants for dental colleges, which precedes the report of the Experts' Committee, item 17 is Nellore Education foundation which had applied for establishment of a dental college at Nellore. We have seen the application. The application was accompanied by a letter issued by the State Bank of Hyderabad, Nellore Branch, dt. 13-6-1992 to the effect that an amount of Rs. 25,00,000/- was already deposited. The summary of that application, in Part II of the alleged inspection report, reveals that bank deposit receipts of nearly 2,00,000 (U.S,) and over Rs. 1,16,000/- in Indian currency had been produced by the above society. It had also offered ten acres of land in Nellore Bit II with agreements of sale to support their claim that they were in possession of the necessary land. We also find that the sponsors and members of the society are highly qualified non-resident Indians, including post-graduates in Medicine. The application also indicates that it was supported by sufficient financial liquidity. We have perused the inspection report with an anxiety to see what was observed by the Committee about this applicant. Curiously, however, there is not even a mention of this Society or of any inspection of the land or other facilities which it offered. In the summary of conclusions again, there is absolutely no reference to this application. Nor do we find any mention of any reason why this Society whose application was not rejected out of hand was not processed or duly considered.
54. While on the question of inspection, we have not gone into the merits or otherwise of the applications, nor is it for us to decide as to whether there are other more competent applicants with better facilities. We are pointing out the above facts only to show that the Experts' Committee had not applied its mind to relevant considerations with any uniformaly applicable standards nor did it discharge its duty in an appropriate manner with the seriousness which the situation demanded.
55. It is well to remember that the Experts' Committee was constituted under a Rule which required it to submit a report after verification of the applicants (G.O.Ms. No. 250 dated 22-5-1992). We also note that the ascertainment of educational needs of the locality and the qualifications of each applicant is a statutory duty under sub-sections (1) and (3) of Section 20 of the Andhra Pradesh Education Act, 1982.
56. on the question of inspection alleged to have been conducted by the Experts' Committee, we find that the inspections were conducted not by the Committee but by individual members on their own, separately and independently. For instance, Dr. C.V. Krishna Rao is seen to have conducted most of the inspections alone without the presence of the other members, who are also seen to have performed in the same manner. He inspected the facilities offered by Madugula Kistha Reddy Education Society, Bhagavan Mahaveer Medical Education Society and 8 others between 16-6-1992 to 18-6-1992. The files produced by the Advocate General disclose that the guidelines which the Experts' Committee - which called it the "Scrutinising Committee" - set for itself to follow in selecting applicants were formulated on 28-6-1992. However, it does not appear from the record that the Government ever saw the guidelines which formed the basis for the Committee's Report for selection and elimination of applicants; much less approved the same. In other words, the Scrutinising Committee set its own standards, notwithstanding the limitations on its powers and the obligation of the Government and the Government alone to take a final decision in the matter under Rule 4 of the 1992 Rules promulgated under CO.Ms. No. 250 dated 22-5-1992 read along with Sections 20 and 21 of the A.P. Education Act, 1982.
57. We have referred to the fact that the position taken up by the State Government was that the report of the Experts' Committee was accepted by it in toto. The Health Minister endorsed the file on 26-7-1992 and the Chief Minister ordered approval of the list of grantees on 27-7-1992. In other words, the attempt is to imply that reasons supporting the grant were those mentioned in the Experts' Committee's report. The report in turn has to be read and understood in the light of the "guidelines" which the Committee set for itself, but which the Government does not seem to have been aware of. The Committee took scrupulous care not to refer to the "guidelines" anywhere in its report. In other words, the Government delegated almost the whole process of screening, eliminating and selecting the applicants to the Experts' Committee, whose report and the record leading to it expose the limits of shoddy and scrappy manner in which a Statutory Committee can discharge its solemn duties. We would have considered this aspect at greater length but refrain from doing so, for the reason that neither the Committee nor its individual members are parties in the writ petitions.
58. After perusing the reports and on a comparison of the other materials on record, we cannot but observe that the entire exercise was nothing less than a disaster. We are fairly clear that it is impossible to support the decision of the State Government on the basis of the alleged report of the Experts' Committee as found in the note file or the highly discrepant materials found in the two files containing reports and other materials which were produced for our perusal. We are of the opinion that the inspection alleged to have been conducted by individual members on the reports each member submitted independently cannot be treated as the product of the collective deliberations of the Committee. As a matter of fact, there was no such collective functioning of the Committee. We do not find any proceedings of the Committee in the two files which were handed over to us about allocation of local inspection of specified institutions, to the individual members. Nor are there any indications in those files as to how and in what manner the inspections were conducted. The petitioner in W.P. No. 10687/92 has specifically asserted that he was not aware of any inspection at any time by the Experts Committee. Counsel submitted that the observation in the inspection report may as well be made of any other land, but not the land which it had offered, he also submitted that it is doubtful whether any person who knew the land - officials or otherwise - had identified the land. He submits that in inspecting the land for establishment of a Medical College involving investment of crores of rupees, it is not too much to expect greater responsibility from a statutory Committee of inspection. We are not told how and when the committee functioned, or when and in what manner it submitted its report to the Government. On a perusal of the entire material including the pleadings before us, we are left with the impression that the report was got up in a hurry and the supporting materials were got together at random after the issue exploded into litigative prominence without much time or effort to correlate them with each other.
59. We are of the opinion that the Government abdicated its jurisdiction as the competent authority to grant or refuse permission to establish educational institutions under Sections 20 and 21 of A.P. Education Act, 1982 read with Rule 4 of the 1992 Rules. Professedly, it looked on in careless abandon-perhaps even encouraged the Committee to arrogate the power and jurisdiction which the statute and the Rules confided only in the Government. On the pleadings, the Government reduced itself into a signing machine and issued the 20 orders impugned in these writ petitions only because the Committee had selected the applicants. Obviously, it did not consider the applications in exercise of its statutory duty. Those orders are evidently invalid and are liable to be set aside.
60. We have now to deal with some of the alternative contentions which are raised specifically in some of the other writ petitions. Petitioners in W.P.Nos. 9809 and 10687 of 1992 had applied for permission to open medical colleges at Warangal and Hyderabad /R.R. districts respectively. They claim that they had complied with all the conditions laid down in G.O.Ms. No. 250. Unlike some of the successful applicants, they also claim that they have existing infrastructural facilities. Petitioner in W.P. No. 10687/92 claims that it has a super-speciality hospital with 150 beds and that that hospital is on the threshold of expansion into a 500-bed hospital even at present. It also claims mat infrastructural facilities available with them are sufficient for further immediate expansion. It is the assertion of these petitioners that they had produced positive proof relating to their financial liquidity which is second to none of the other applicants and could have justified the grant of permission in their favour, in view of their excellent track record. They assert that they were not informed about any local inspection of the sites or the facilities. They also assert that their applications were arbitrarily and wantonly rejected.
61. Sri Subba Reddy, counsel appearing for petitioner in W.P. No. 10687/92 also submitted that at least courtesy demanded the State Government to have intimated the petitioner about the disposal of its application, after having received an amount of Rs. 20,000/- as non-refundable fee along with the application. Attempts were made to compare the qualifications, which the petitioner claims to have, with those of party-respondents who were granted permission in the respective regions. We refrain from going into those details, because it is neither necessary nor desirable that we consider the qualification afresh as if in an appellate review. The only exercise of jurisdiction except in exceptional cases shall be to see whether the administrative authority has exceeded its jurisdiction or erred in its exercise or has violated the principles of natural justice or has acted so wantonly, perversely or arbitrarily as to result in manifest injustice and thereby invite interference by this Court. We will therefore, confine our attention to those aspects alone.
62. We have found that Sections 20 and 21 of A.P. Education Act has conferred a statutory right on educational agencies to apply for permission to open educational institutions. The exercise of that statutory right is subject to regulations. But every applicant is entitled to insist that his application is duly considered by the competent authority with reference to the provisions of the Act and the Rules and standards of universal application. The only question which we have to consider is whether this basic duty has been duly performed in dealing with the applications of the petitioners. We have found that State Government disposed of only 20 applications of respondents 6 to 25 granting them permission, for the reasons mentioned in the report of the Experts' Committee. The authority which is expected to grant or reject applications has not even seen the applications filed by these two and the other applicants. Going by the contents of the file which led to the impugned orders, it is absolutely clear that the Government had not seen the reasons, if any, which the Experts' Committee had stated for rejecting the Applications of the two petitioners. It is impossible to assume that the State Government retained the power to act positively in respect of some of the applicants and could or did delegate the power to refuse the other applications to the Experts' Committee which is an authority not confided with any such power by the statute; Even if the Government proceeded under the latter assumption that by itself cannot confer competence on the Committee to dismiss the applications. The reasons for grant or rejection made by the Experts' Committee would not become reasons in the order of the Government, unless the latter specifically incorporated them as part of its order in some manner known to law. We have not been referred to any statutory provision under which the competent authority's power to grant or reject applications filed under Sections 20 and 21 of the A.P. Education Act or Rule 4 of the 1992 Rules can be delegated on the sly to an authority which is not prescribed under the Act. The Experts' Committee was constituted under Rule 4 of the A.P. Unaided Medical and Dental Colleges (Establishment, Management and Admission) Rules, 1992 which is in the following terms;
"4. Permission for the Establishment of Medical and Dental Colleges in private sector:
After the last date for the receipt of the applications, a committee consisting of Director of Medical Education; an eminent person from the Medical field and a representative of University of Health Sciences will scrutinise the applications received, and forward them to the Government. The Govennment will select the society for the establishment of medical College or Dental College at a particular place from among the applicants for that place and accord permission to the selected society with such conditions as may be deemed necessary, including number of seats allowed, for the establishment of College and to commence the functioning of College within the stipulated time. If the Society fails to fulfil the conditions within the stipulated time and fails to start functioning of the College the permission so granted shall be withdrawn/cancelled after due notice and another society which fulfills the requirement will be given permission for the establishment of the college. The decision of the Government under this rule shall be final."
The above rule, under which the Experts' Committee was constituted, did not entrust to the Committee the power of rejecting the applications filed by educational agencies for permission to establish educational institutions. The Experts' Committee has performed that function which the statute did not entrust with. If we deem the 20 applications which were granted and the reasons therefor as reasons for rejecting the other applications, even then, the power to reject the applications has been exercised only by the Committee and not the Government. This exercise was completed by two different authorities - the positive aspect by the State Government and the negative aspect by the Experts' Committee. Though there is some indication in the note file that the list of 57 applications for Medical Colleges and 41 for Dental Colleges was part of the file, they are no where in the file. There are no indications at all, even in the file, that any other part of the Report of the Experts' Committee containing its reasons for not granting applications of 78 applicants was seen by any one in the Government, who saw the file as per the note file.
63. We are of the opinion that the authority which granted the applications had to deal with all the applications, limit the number of institutions to be established and determine the places to establish them. The Government itself should have stated reasons why some among the many were to be granted and the rest had to be rejected. This is the clear indication of Rule 4 of the 1992 Rules read with Sections 20 and 21 of the A.P. Education Act, 1982. The reason now conjured up in the counter affidavit will hardly be a substitute for a reasoned order disposing of the applications. As has been stated in Mohinder Singh Gill (9 supra), it is impermissible to read part of the counter affidavit as order or reasons for rejecting the applications which should have been dealt with by the State Government and State Government alone.
64. W.P.Nos. 8592/92, 9187/92 and 9698/92 were filed by aspirants who would have filed applications for the grant of permission to establish a Medical College and/or Engineering Colleges. They challenge G.O.Ms. No. 250 Education/92 and the notification dated 25-5-1992 issued pursuant thereto, which fixed 8-6 1992 as the last date for receipt of applications and G.O.Ms. No. 198 Education/92 and the notification dated 28-5-92 inviting applications with the last date for receipt thereof as 8-6-1992. Counsel for the petitioners urged before us that there was only just about or less than two weeks after the publication of the notification for the applicants to comply with the onerous conditions like producing proof of deposit of Rs. 1,00,00,000/- Bank Guarantee for another amount of Rs. 1,00,00,000/- and evidence of financial liquidity to make up an aggregate amount of Rs. 4,00,00,000/- in addition to evidence of availability of land and other infrastructure. Their case is that had they been given some reasonable time, they also would have applied for permission to establish Medical and Engineering Colleges. According to them, they founded Indian Muslim Academy and the Muslim Academy of Sciences respectively to satisfy the requirements of Section 21 of A.P. Education Act, 1982 and had made other arrangements for establishing the colleges, but were disabled from applying due to constraints of time. The petitioner in W.P. 9187/1992 submits that he should have been enabled to apply as an individual and the insistence that only registered Society can apply is discriminatory. He has sought to challenge not only G.O.Ms. No. 198/Edn./92 but Section 3-A of Act 5 of 1983 and even Act 1 of 1982. Those aspects are covered by the other Judgment.
65. We are of the opinion that in a venture which involves financial assurances for assets to the extent of Rs. 5,00,00,000/- of which Rs. 1,00,00,000/- has to be in cash, some reasonable time should have been given by the Government within which the applications could have been submitted and entertained. We may perhaps agree that the time given in the instant case was not sufficient. But the response which the notification evoked, viz., 98 applicants altogether - is some indication that there was enough number of applicants who were ready and willing to comply with all the requirements. However, in the nature of the order which we propose to make, it is not necessary for us to consider this aspect any further.
66. This leaves us with W.P. No. 9946/92. Petitioner therein is a student belonging to the Muslim community represented by his next friend. He had appeared in the EAMCET examination and had passed with general rank No. 10151. He has rank 246 among the minority students on the basis of their performance in the EAMCET examination. He submits that under Section 4(1) of Act 5/83, minority students are entitled to admission in the Muffakham Jah College of Engineering & Technology owned and managed by respondents 1 to 3 on the basis of rank in EAMCET examination or in the qualifying examination, as the case may be. Sub-section (2) enables the management of minority to admit non-minority students also but such admission shall be only on the basis of merit as determined by rank obtained in the EAMCET examination or in the qualifying examination. He submits that he would ordinarily have been admitted, but for the insistence of the Management that 50% of the available seats will be filled up by admission of candidates selected by the Management without reference to the above provisions. His further complaint is that in admitting students to 50% of the seats, even assuming that the Management is entitled to have the benefit of Section 34 of the Act, admissions should be confined to students belonging to the minority community and that too,on meritonly. His positive case is that when he approached the Management, he was told that his admission will be subject to payment of larger amount of money which he cannot afford in spite of the fact that the respondent is a minority educational institution and he belongs to the very minority community and had obtained rank in the EAMCET examination. He submits that in spite of positive directions from this Court and the State Government and the Director of Technical Education, the respondent had admitted students to all but a few of 50% of the seats which the Management assumes, is earmarked for candidates which it may choose without reference to merit. He also submits that most out of such students belong to non-minority communities and have ranks far below him in the EAMCET examination. It is on these grounds that he submits that there may be a direction to the respondent-college to admit him to 1st year Engineering Course in accordance with his rank in the EAMCET examination among students belonging to the minority community to which She Management also belongs.
67. Mr, Habeeb Ansari, Counsel appearing for the respondent submits that the Management is entitled, by reason of Section 3-A which was introduced in Act 5/83 by Act 12/92 and according to which 50% of total number of seats in the College may be filled up by the Management from among candidates who have passed EAMCET examination. He submits that in terms of Section 3-A the Management is free to effect admissions without reference to rank in the EAMCET examination. He submits further that the right of the Management to make such admissions is irrespective of the community to which, the applicant belongs. He asserts that the petitioner may perhaps obtain admission in the remaining 50% of the seats, but he cannot insist that he shall be admitted. in the Management quota on his own terms. He also submits that it shall not be the look out of the petitioner if the Management fills up 50% of the seats by any qualified candidates, be they belong to minority community or otherwise.
68. We understand Article 30(1) of the Constitution of India, of the right of a minority community to establish and administer educational institutions of its choice to be pervasive in character1 in the sense that its benefit shall be available not only to the institutions or managements belonging to the community, but as well to the students, teachers and other people belonging to the minority community. Article 30(1) in its fullest amplitude is the right conferred on each individual member of the minority community, not to its institutional hierarchy alone. Along with his tight under Articles 15 and 29, a student belonging to the minority community is entitled to insist by reason of the right conferred by Article '30(1), to claim that his claim for admission shall be considered in institutions established and administered by the minority community to which he belongs. Article 30(1) and Article 29 of the Constitution of India have the effect of balancing protective discrimination in favour of members of the minority community in the matter of educational opportunities on one side and the requirement of excellence in educational standards on the other. This cannot be done by bartering away seats in minority educational institutions to non-minority students on considerations other than merit. According to the EAMCET Rules read along with Sections 4(1) of Act 5/1983, students belonging to minority are ordinarily entitled to preference in the matter of admission to such minority institutions on the basis of rank in the EAMCET examination inter-se as between candidates belonging to the same minority community.
69. We need only state that Section 3-A cannot have any effect in respect of minority institutions because admissions to such institutions are covered by Section 4 of Act 5/1983 which contains Special Provisions in respect of Minority Educational Institutions". The non-obstante provision, with which Section 3-A commences, makes only Sections 3 and 5 of Act 5/1983 inoperative and not the provisions of Section 4 of Act 5 /1983. Minority institutions which are governed by the specific provision, viz., Section 4 cannot say that the non-obstante clause wish which Section 3~A begins enables them to claim the benefit of admission to 50% of the total seats in their institutions without reference to merit ranking. This submission flies in the face of provisions of Section 4 of Act 5 /1983. Section 3-A does not have the effect of erasing or eliminating Section 4(1), even though, it may supersede some of the provisions contained in Sections 3 and 5. We are, therefore, of the opinion that the respondent-institution is bound to grant admission to the petitioner in accordance with his rank in the EAMCET examination as is enjoined by Section 4 of Act 5/1983.
70. In the light of the above discussion, we allow Writ Petition Nos. 9824,9825 and 9946 of 1992 to the extent indicated above.
71. We quash the orders, G.O.Ms.Nos. 321 to 350. There will be a direction to the Respondents 1 to 3 in W.P. No. 9946/92 to admit the petitioner in First Year Engineering Course in terms of Section 4(1) of Act 5/1983. It is not necessary for us to grant any specific relief in W.P.Nos. 9809 and 10687 of 1992. Nor is it necessary for us to grant any further relief in W.P.Nos. 8592,8698 and 9187 of 1992. They are disposed of.
72. We shall not leave this case without expressing our anguish at the very casual manner in which the top bureaucracy in the State dealt with the entire issue. Experienced and responsible Officers should have told the Ministers that a Committee constituted under Rule 4 of the 1992 Rules could only scrutinise the applications and submit the applications for consideration of the Government. They seem to be oblivious of the statutory provisions in Sees. 20 and 21 of the A.P. Education Act and Rule 4 of the 1992 Rules that only the competent authority could deal with the applications and grant or reject them. They reduced themselves to the role of observers when all the statutory provisions were thrown to the winds as it were. We are intrigued that the file in which the interests of close relatives of the Chief Minister should have been submitted to him without even a casual reference to the relevant Rule in the Business Rules. Their performance in connection with these writ petitions is hardly any more complimentary. They seem to have thrust a compilation of papers into the hands of the Advocate-General asserting that it was the original Report of the Committee. On examination by us, it was found to contain only xerox copies, most of which did not contain signature by anybody. When that was pointed out, they caused production of yet another bunch of papers which were said to be the real original of the Expert Committee Report, of which the papers produced earlier were said to be copies. Curiously, however, many of the so called originals contained dated signatures which were not found in the xerox copies. When we perused the note file, we found yet another 'Report of the Committee' which the Government is said to have accepted in toto. Fortunately, the final portion of the Report, which alone is found in the note-file, corresponds in every particular to its counter parts in the two files which the AdvocateGeneral produced earlier. Obviously, none of the senior civil servants bothered to check up the papers which they caused the Advocate-General to produce in Court. Whether the careless abandon was deliberate or due to default is unfathomable. We are left with the impression that they acted like boneless wonders indulging in a command performance. We wish that civil servants entrusted with great responsibilities in guiding the destinies of our country act with greater sense of duty. Conscious as we are of the constraints under which the civil servants function now, we do not propose to proceed any further.
JUDGMENT (PART II) M.N. Rao, J.
1. This Full Bench was constituted pursuant to an order of reference made by a Division Bench comprising two of us (M.N. Rao and Reddeppa Reddi, JJ.) expressing the view that the importance of the subject-matter of adjudication and the legal complexities involved warrant review by a larger Bench of three Judges.
2. The principal question we are required to consider in this batch of writ petitions is-
Whether Section 3-A of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983, as inserted by Section 2 of Act No. 12 of 1992, is constitutionally valid?
3. The impugned Section 3-A of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (hereinafter referred to as "the Act"), enacts a special provision in respect of unaided private educational institutions permitting them to admit students to the extent of one-half of the total number of seats into Medical, Dental, Engineering and such other class of institutions, as may be notified, irrespective of the ranking obtained by the students either in the common entrance test or the qualifying examination, as the case may be. Section 3-A of the Act reads:
"Notwithstanding anything contained in Section 3, but subject to such rules as may be made in this behalf and the Andhra Pradesh Educational Institutions (Regulation of Admission) Order 1974, it shall be lawful for the management of any un-aided private Engineering College, Medical College, Dental College and such other class of un-aided educational institutions as may be notified by the Government in this behalf to admit students into such Colleges or educational institutions, to the extent of one-half of the total number of seats from among those who have qualified in the common entrance test or in the qualifying examination, as the case may be, referred to in Sub-section (1) of Section 3 irrespective of the ranking assigned to them in such test or examination and nothing contained in Section 5 shall apply to such admission."
4. Sub-section (1) of Section 3 of the Act makes it obligatory that admission into an educational institution shall be either on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test. The proviso to Sub-section (1) makes it Compulsory that admission into Medical and Engineering Colleges shall be made only on the basis of the ranking assigned in the common entrance test. Sub-section (2) says that admissions under sub-section (1) shall be subject to rules made by the Government in regard to reservation of seats in favour of members belonging to Scheduled Castes, Scheduled Tribes and other backward Classes and other categories as may be notified by the Government. The admissions are also subject to the provisions of the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974 under which 85 per cent of the seats in each University region shall be reserved in favour of local candidates. Subsection (3) confers power on the Government to admit students belonging to other States on reciprocal basis and the nominees of the Government of India into Medical and Engineering Colleges.
5. Collection of capitation fee by any educational institution is prohibited by Section 5. Unaided private educational institutions comprehended by Section 3-A are relieved of the obligations imposed by Sections 3 and 5 with the exception of the requirements relating to the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974 while filling up 50 per cent of the seats. Put differently, collection of capitation fee is not prohibited and the requirement of granting admission in the order of merit and providing for reservation in favour of weaker sections and other categories of students is statutorily dispensed with to the extent of one-half of the total number of seats in the colleges covered by Section 3-A.
6. Individual students, Students' Organisations, a Member of Parliament and some others are petitioners before us. The impugned Section 3-A has generated tremendous turbulence disturbing the otherwise peaceful atmosphere both in centres of learning and outside. Even after the hearing was commenced, airing of views as to the propriety and legitimacy of the impugned measure continued unabated by Students' Organisations, members of the public, academic community and political parties, so much so, a situation was reached when parties to the present proceedings moved miscellaneous petitions before us seeking directions to restrain the opposite side from organising public meetings and holding demonstrations concerning the impugned legislative measure. We refer to this in order to make it explicit that neither deep nor surface currents of public feeling, or articulated opinions of interested or affected groups will have any impact on our decision-making.
7. The impugned measure has generated conflict of interests in the field of professional education which is of utmost concern to the welfare of the community at large. When legislation touches higher education, the wellspring of our progress and social advancement, heightened scrutiny and close judicial review are necessary.
8. Prior to the Constitution (Forty-Second Amendment) Act, 1976, 'education' was a State subject. Entry 11, List II of Seventh Schedule, as it stood then, read as follows:
"Education including Universities, subject to the provisions of entries 63,64,65 and 66 of List I and entry 25 of List III."
Entries 63,64,65 and 66 of List I of Seventh Schedule read as follows:
"63. The institutions known at the commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the University established in pursuance of Article371-E,anyother institution declared by Parliament by law to be an institution of national importance.
64. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance.
65. Union agencies and institutions for - (a) professional, vocational or technical training, including the training of police officers; or
(b) the promotion of special studies or research; or
(c) scientific or technical assistance in the investigation or detection of crime.
66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
Entry 25 of List-III of Seventh Schedule read as follows:
"Vocational and technical training of labour."
9. By Section 57 of the Constitution (Forty Second Amendment) Act 1976, which came into force on 3-1-1977, entry-II of List- II of the Seventh Schedule was omitted from die State List and the following entry was substituted as entry 25 of List-III of the Seventh Schedule:
"Education, including technical education, medical education and universities, subject to the provisions of entries 63,64,65 and 66 of List I; vocational and technical training of labour."
10. By the Constitution (Forty Second Amendment) Act, 1976 'education' became a can current subject. Prior to that, the State Legislature had exclusive power to legislate in the field of education, including universities, subject to the provisions of entries 63, 64, 65 and 66 of List-I and entry 25 of List-Ill of the Seventh Schedule.
11. It would be useful to refer briefly to the laws enacted by the State Legislature in the last ten years covering the field of education and having a bearing on the questions at issue in this batch of writ petitions.
12. Prior to 1982, higher education was not subjected to legislative control in any appreciable measure. For the first time, in the year 1982, the Andhra Pradesh Education Act (Act No: 1 of 1982) was enacted by the State Legislature, a comprehensive legislative measure for "reforming, organising and developing" the education system. This Act, inter alia, seeks to develop education system, consistent with national policy, (i) as an instrument for establishing and strengthening our socialist, secular and democratic society and for promotion of national integration : and (ii) as a firm link at all levels with science and technology.
13. All levels of education - from primary to professional - are brought within the sweep of this legislation. It contemplates Government providing adequate facilities for implementing the provisions of this Act. Educational institutions are classified by Section 19 into State institutions-those established or managed and administered by Government; institutions established or managed or administered by local authorities ; and private institutions established or maintained or administered by persons registered in the prescribed manner.
14. Section 20 deals with procedure for grant of permission for establishment of educational institutions. The parameters of the power to grant or withdraw recognition are incorporated in Section 21. By an amendment brought out in the year 1987, by insertion of Section 20-A, individuals are prohibited to establish educational institutions : by implication only societies are permitted.
15. Chapter-VIII contains elaborate provisions relating to grant-in-aid and it also incorporates a specific provision - Section 44 - which prohibited collection of capitation fee. It was in the following terms:
"44. Monies received form sources other man grant:
1. Any money received by way of voluntary donation from donors may be accepted by the institution and the fact shall be intimated within forty days from the date of such acceptance to the competent authority. Such money shall be deposited in the account of the institution, in such bank as may be approved by the Government and shall be applied and expended for the improvement of the institution and the development of educational facilities and for such other purposes as may be prescribed.
2. No money shall be collected at the time of admission by any educational institution as a condition precedent to such admission except towards the prescribed fee."
Government is empowered under Chapter XI to take-over management of an institution in public interest; it also deals with the power of requisitioning and acquisition of educational institutions. This Act also contains provisions dealing with payment of salaries and allowances to and disciplinary action against employees of private educational institutions. This Act received the assent of the President of India on 27th January 1982.
16. In 1983, the State Legislature enacted Act No. 5 of 1983 entitled "The Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983." The very title of the Act highlights its twin objectives-regulation of admission and prohibition of collection of capitation fee. The preamble mentions that capitation fee is an undesirable practice contributing to large scale commercialisation of education and so it was "considered necessary to effectively curb this evil practice in order to avoid frustration among the meritorious and indigent students and to maintain excellence in the standards of education." It is a short enactment consisting of 16 sections. Sections 3 and 5 have already been referred to supra while noticing the text of the impugned Section 3-A. Section 7 confers power on Government to regulate tuition fee or any other fee that may be levied and collected by any educational institution in respect of each class of students. No educational institution shall collect any fee in excess of what is notified in Sub-section (1) thereof. It is made obligatory on the part of every educational institution to issue an official receipt for the fee collected by it. Clause (b) of Section 2 defines "capitation fee" as "any amount collected in excess of the fee prescribed under Section 7." The definition of "educational institution" by Clause (c) of Section 2 encompasses colleges also, whether managed by Government, private body, local authority or university and carrying on the activity of imparting education, whether technical or otherwise. Section 4 enacts a special provision in respect of minority institutions. Section 4-A is another special provision inserted by way of an amendment-Andhra Pradesh Act No. 3 of 1984-conferring power on Government to admit students belonging to foreign countries and nonresident Indian students into a medical college established for the purpose. It also contains provision for constitution of a fund called 'Medical Education Fund' for development of medical educational facilities. As capitation fee was prohibited by Section 5, and Section 6 incorporates provisions relating to voluntary donations to any educational institution, it was felt that Section 44 of the Andhra Pradesh Education Act 1982 was superfluous and accordingly that Section was omitted from the statute. Contravention of the provisions of the Act or the rules made thereunder is made penal by Section 9.
17. Soon after Act 5 of 1983 imposing ban on capitation fee was enacted, a number of writ petitions were filed by private managements in this Court challenging the constitutionality of the said Act, in particular, Sections 3 and 5 to 11 thereof. A Division Bench of this Court comprising A. Seetharam Reddy and C. Sriramulu JJ., by a common judgment dated 23-12-1983 in Writ Petition No. 3492 of 1983 and batch, sustained the constitutionality of the Act. In an elaborate judgment, the Division Bench speaking through A. Seetharam Reddy J., observed:
"Right to run an educational institution is not a fundamental right, capitation fee is an evil and its abolition is in the nature of a social welfare measure to which the State is committed under Article 38 of the Constitution, and that capitation fee leads to denial of equal opportunities, resulting in violation of Article 14."
In the opinion of the Division Bench -
"Wealth, like caste, creed, religion or race is not germane to one's ability to pursue education so as to achieve academic and intellectual excellence."
We are told that appeals preferred against this judgment by the private educational institutions are pending in the Supreme Court of India.
18. In September, 1984 the then State Government took a decision to make a departure from the principle of imposing an absolute ban on capitation fee and so got issued an Ordinance entitled "The Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Amendment Ordinance 1984" which was in operation for a period of one month from 6-9-1984 to 15-10-1984. By this Ordinance, seats in private Engineering Colleges were increased and provision was made for 20 per cent management quota for purposes of admission of students qualified in the common entrance test irrespective of the ranking obtained by them. The successor-Government revised the policy by issuing another Ordinance which was subsequently replaced by Act No. 11 of 1985 restoring the original position of total ban on capitation fee as embodied in Act No. 5 of 1983.
19. Nine years after completely banning the capitation fee, the impugned Section 3-A was enacted. In the Statement of Objects and Reasons, it is mentioned that a review of the working of the 1983 Act "revealed that while the Act has produced desired results, it has also, at the same time, rendered many of the un-aided private educational institutions financially unviable." After mentioning that the un-aided private educational institutions have to mainly depend upon the fees collected from the students and do not get any aid either from the Government or the University Grants Commission, the statement proceeds -
"if the unaided private educational institutions, particularly the professional colleges, are denied financial aid particularly from willing students, it is felt mat their development will become extremely tardy and it will also be difficult to maintain excellence in the standards of education. It is, therefore, thought that a relaxed application of the Act to the unaided private educational institutions will not only make for their efficient functioning with financial viability but also protect standards of education."
20. Rules have been made by the State Government by issuing G.O.Ms. No. 250, Health, Medical and Family Welfare Department, dated 22-54992 under Sections 20 and 21 of the 1982 Act for grant of permission for establishment of unaided Private Medical and Dental Colleges under private sector in the State.
21. Only societies are eligible to apply for permission as Section 20-A prohibits individuals from establishing educational institutions. The applicant should produce evidence as to the availability of private accommodation and other infrastructural facilities available. A Committee consisting of the Director of Medical Education, an eminent person from medical field and a representative of the University of Health Sciences will scrutinise the applications and forward the same to the Government for selection. The selected society will make its own arrangements to obtain affiliation from the University of Health Sciences and recognition from the Medical or Dental Council of India after fulfilling the conditions laid down in that regard by those bodies. No financial aid or grant will be given by the Government. Annexure-I to G.O.Ms. No. 250 contains the details of documentary evidence to be enclosed to the application. Each applicant has to produce, inter alia, evidence of availability of Ac. 50-00 of land and resources of Rupees Five Crores in cash or assets or securities for establishing a medical college. The requirement in this regard in respect of Dental Colleges is Ac. 10-00 of land and resources of Rupees One Crore in cash or assets or securities.
22. Applications were invited through a notification in "Deccan Chronicle" an English daily dated 28-5-1992 for granting permission to establish Medical Colleges and the last date specified for receipt of applications was 8-6-1992. Out of the total number of 57 applications received from several societies by the State Government, twelve societies were selected for setting up Medical Colleges and eight societies for Dental Colleges.
23. Separate Rules in G.O.Ms. No. 198, Education (EC) Department/dated 20-5-1992 have been issued in respect of Engineering Colleges.
24. Two sets of orders, one in regard to the Medical Colleges and the other in regard to the Dental Colleges, each containing identical conditions, have been issued by the State Government in favour of the selected societies. The selected society is required to set up within 18 months from the date of commencement of classes a teaching hospital in the same town as an adjunct to the college with a bed-strength of seven times equivalent to the number of students admitted to the first year course. The number of seats authorised in each medical college is 100 and in case of dental college, 50. Therefore, each Medical College has to set up a teaching hospital with a bed-strength of 700 (i.e., 100 seats X 7 = 700 bed-strength), and each dental college has to set up a teaching hospital With a bed-strength of 350 (i.e., 50 seats X 7 = 350 bed-strength).
25. It is stated, no orders have been issued granting permission in favour of any society to establish an engineering college.
26. The 20 selected societies/applicants for setting up medical and dental colleges have been impleaded as party-respondents in this batch of writ petitions. Two of the existing private engineering colleges also got themselves impleaded as respondents not only to support the constitutionality of the impugned Section 3-A but also to obtain judicial assent for their action in filling up 50 per cent of the existing seats treating them as 'management quota' under Section 3-A although the Convenor, EAMCET has not allotted any candidates to them so far, nor any rules have been framed by the Government to regulate admissions under Section 3-A.
27. At present, mere are no private medical or dental colleges in the State with the sole exception of one medical college established at Hyderabad by the muslim minority. The other 9 medical colleges are under the control and management of the State Government. There is only one dental college in Hyderabad under the control and management of the State Government. The total number of seats in the existing 9 medical colleges is 1050," and in the dental college there are 40 seats.
28. Learned Counsel for the petitioners and the private managements, and the learned Advocate-General have advanced comprehensive arguments covering a wide range - from the origin and relevance of education to the benefits higher education confers on society, the scenario of changing political and economic values, the re-thinking on the part of the policy-makers in the context of the existing ground realities, the dictates of prudence as against adherence to ideological concepts unrelated to realities, the choice between not going in for expansion of seats in professional colleges or permitting expansion by allowing private managements to fill up one-half of the seats in the manner laid down in Section 3-A, the impossibility of devising an infallible test for measuring the merit of a student-are some of the aspects dealt by the Counsel, besides legal arguments strict sensu confined to the provisions of the Constitution of India and the decisional law.
29. It is necessary, in this context, to mention that what figured prominently in the debate is the recent decision of the Supreme Court of India in Mohini Jain v. State of Karnataka, 1992 (2) SCALE 90. rendered by a two-member Bench on 30-7-1992, in Writ Petition (C) No. 456 of 1991.
30. It is asserted by the learned Counsel for the petitioners that the impugned Section 3-A is violative of Article 14 of the Constitution of India. Students constitute a single class and their classification into those who can afford to pay capitation fee and those who cannot, is per se arbitrary. When seats are limited and aspirants are more, necessarily the choice must be on the basis of merit as disclosed by the rank secured in. the entrance test. Section 3-A Confers an unfair advantage in favour of wealthy candidates who can afford to pay capitation fee and secure admission while others, without wealth, although are of equal or superior merit cannot secure admission. Affordability on the basis of wealth is an arbitrary condition forbidden by Article 14 of the Constitution of India. Except reservations in favour of constitutionally protected classes falling within the ambit of Article 15 (4) of the Constitution and other categories of persons like the children of Ex-service personnel, those distinguished in sports and games and NCC, and those afflicted with physical disabilities, there cannot be reservations in favour of any other class. The existing reservations in favour of constitutionally protected classes under Article 15 (4) have been adversely affected by the impugned legislation. When the object of the main Act is maintenance of excellence, the same cannot be undermined by an amendment; no amendment can destroy the basic purposes, objectives and structure of the main Act. When collection of capitation fee was legislatively declared to be a pernicious practice by the 1983 Act and a Division Bench of this court had recorded a finding upholding the legislative declaration, it is not open to the State now to statutorily legalise capitation fee. The judgment in Mohini Jain v. State of Karnataka (1 supra) holding that collection of capitation fee is wholly arbitrary and as such violative of Article 14 of the Constitution of India and that in any form it cannot be sustained, binds this Court since it is law declared by the Supreme Court of India under Article 141 of the Constitution of India. This Court by any interpretative device cannot act in any manner contrary to the law declared by the Supreme Court. The impugned legislation is repugnant to certain provisions of the laws enacted by Union Parliament - Indian Medical Councils Act 1956; the Dentists Act, 1948; All India Council for Technical Education 1987 etc., and as "education' is in the concurrent List, absence of the assent of the President of India is fatal under Article 254 (2) of the Constitution. Even if there is no actual repugnancy between the Union laws and the impugned Section 3-A, the fact that the field has been covered by Union legislation itself renders the impugned State law unconstitutional.
31. In opposition to these submissions, the stand of the State Government, as disclosed from the counter-affidavit filed by Sri G. Kumaraswamy Reddy, Principal Secretary to Government of Andhra Pradesh, Medical and Health Department, is that although it was a desirable objective to control raising of resources through collection of capitation fee, "the advantages of a rigid adherence to this practice had to be weighed against the inability of the Government to set up necessary additional medical and other colleges." For the total population of 6.63 crores in the State of Andhra Pradesh, the available bedstrength in Government Hospitals is 25,142 in the ratio of 1:1300 as against the corresponding all India figure of 1:1100. The international,norm is stated to be 1 : 250 and in Japan the ratio is 1: 65. After stating the statistical details, the counter mentions that the expenditure for setting up a modern hospital having 700 beds would be about Rs. 35 Crores and the present financial position of the State does not permit it to establish new hospitals or medical colleges or other colleges for technical education. The constitutional mandate, as expressed in Articles 39 and 41, imposes a sacred duty on the State to direct its policy to ensure that measures conducive to improving the health of its people should be undertaken. The impugned legislative measure was thus designed to fulfil a constitutional mandate. In order to achieve long-term objectives, occasional compromises are essential and the effect of the impugned Section 3~A is that private educational institutions granted permission to start colleges "will not infringe the laws of the land if they collect capitation fee". By insisting upon the requirement of passing the EAMCET (entrance test), the principle of merit has not been discarded. In a poor and developing country like India, higher education is a luxury and the estimated cost to provide medical education for a single student for the entire course is Rs. 2.24 lakhs; in the case of dental and engineering students the cost is Rs. 2 lakhs and Rs. 75,000/-, respectively. In defence of the legislation, the counter says that in view of the financial position of the State "the choices available to the State are either to keep quiet upholding the principle of 'no capitation fee' or to make an earnest endeavor to utilise the vast potential of private sector for a ugmenting the facilities for higher education in the State".
32. In opposition to the arguments of the learned Counsel for the petitioners, it is contended by Sri T. Ananta Babu, learned Advocate-General that the impugned legislation makes a valid classification. It is wrong to assume that Section 3-A classifies students on the basis of capacity to pay capitation fee; it only classifies institutions. All colleges are divided into-(i) those administered with State funds; and (ii) those administered without the aid of State funds. The difference between the two classes is clearly discernible and the classification has a rational nexus with the object sought to be achieved, viz., development of medical and technical education. Registered societies have a fundamental right to establish and administer educational institutions under Article 19 (1) (g) of the Constitution of India. The doctrine of 'repugnancy' has no application as Section 3-A, in fact, is not in conflict with any of the existing provisions of any Union legislation now in operation. The decision of the Supreme Court in Mohini Jain v. State of Karnataka (1 supra), being contrary to the law laid down by the earlier larger Bench of the Supreme Court, cannot be treated as. a binding precedent.
33. Sri G.N. Sanghi, learned Counsel appearing for the ninth respondent in Writ Petition 9824/92 - Sri Subbatataraju Medical Education Society which was granted permission to start a medical college at Bhimavaram-has argued that Mohini Jain's case (1 supra) has laid down the proposition that a student has a fundamental right to receive medical education under Article 21 of the Constitution of India and from that it follows that the fundamental right of a society to establish a college is integral to the fundamental right of a student to have medical education. The right to establish an educational institution, according to the learned Counsel, flows from Article 19 (1) (a) and (g) of the Constitution. He submits that his client is willing to adhere to the principle of merit but with liberty to charge fee commensurate with expenditure to run the college.
34. Sri G.Raghuram, learned Counsel appearing for some of the impleaded respondents-students who appeared for the EAMCET (entrance test) in engineering course and secured ranks between 2500 and 6500, has contended that the consequence of the Union Parliament enacting All India Council for Technical Education Act 1957 (Act 52 of 1957), is that in respect of engineering colleges in the State none of the provisions of 1982 Act and 1983 Act can have any effect; the intervention of a superior legislature, viz., Union Parliament, has rendered these provisions ineffective and, therefore, the logical conclusion that follows is that there cannot be any restriction on admissions to engineering colleges in the State by virtue of any of the provisions contained in a State law.
35. Before dealing with the aforesaid contentions as to the constitutionality of Section 3-A, it is necessary to advert to certain supplementary submissions as to whether a citizen has a right to establish an educational institution; whether the impugned Section 3-A permits collection of capitation fee; whether 'education' is a trade or business; how to judge the elusive concept of merit in the matter of admissions to educational institutions; and the importance attached to higher education by the Government of India in evolving its national policy.
36. Article 19 (1) (a), (c) and (g) are the relevant provisions relied upon. We need not consider Articles 29 (1) and 30 which relate to protection of interests of minorities and their right to establish and administer educational institutions since, admittedly, these provisions are not attracted and none of the Counsel has advanced any arguments based upon these provisions.
37. The guaranteed right to freedom of speech and expression under Article 19 (1) (a) conceivably may embrace academic freedom; but such a derivative right cannot be extended to the right to establish educational institutions and claim recognition for the same from the State. Right to convey ideas, which is what academic freedom is, connotes no commercial component and so it cannot be elevated to a right to establish an educational institution with a concomitant right to obtain recognition from the State.
38. None of the guaranteed freedoms under Article 19 confer a specific right on a citizen to establish an educational institution. The right to form associations or unions under Article 19 (1) (c) is subject to the limitations engrafted in Clause (4) of that Article. This does not mean that an association can be formed for the purpose of establishing an educational institution and it can pursue its objects uninterruptedly subject to the reasonable restrictions imposed by any law in the interests of sovereignty and integrity of India, public order or morality. There is no such concomitant right vested in an association to achieve every object for which it is formed. Only Article 30 (1) of the constitution confers a specific fundamental right on minorities to establish and administer educational institutions of their choice. When no such distinct right is conferred on nonminorities, it is not possible to derivatively infer such a right as a concomitant one flowing from Article 19 (1) (c). This conclusion of ours derives support from the view taken by the Supreme Court in A.I.B.E. Asson. v. N.I. Tribunal, Considering the question whether from the guaranteed right under Article 19 (1) (c) to form an association it could be inferred that the association so formed would get a fundamental right to resort to strike, it was ruled by the five member Bench:
"It would be seen that if the right to strike were, by implication a right guaranteed by Sub-clause(c) of Clause (1) of Article 19, then the restriction on that right in the interests of the general public viz., of national economy, while perfectly legitimate if tested by the criteria in Clouse(6) of Article 19,might not be capable of being sustained as are a reasonable restriction imposed for reasons of morality or public order. On the construction of the Article, therefore, apart from the authorities to which we shall refer presently, we have reached the conclusion that even a very liberal interpretation of Sub-clause (c) of Cl. (1) of Article 19 cannot lead to the conclusion that the trade unions have a guaranteed right to effective collective bargaining or otherwise. The right to strike or the right to declare a lock-out may be controlled or restricted by appropriate industrial legislation, and the validity of such legislation would have to be decided not with reference to the criteria laid down in cl. (4) of Article 19, but by totally different consideration".
39. The learned Advocate-General has submitted that the fundamental right under Article (19 (1) (g) is wide enough to encompass the right to establish and educational institution and in support thereof he cited certain rulings. In Sakharkerda Edn. Society v. State, certain orders issued by the Government of Maharashtra refusing permission to certain societies to start educational institutions were challenged on the ground, inter alia, that they were violative of Article 19 (1) (g). A Division Bench of the Bombay High Court had expressed the view:
The words 'profession, or occupation or business', are of wide import and whether or not gain is made by running an educational institution it cannot cease to be business'.
The matter was carried in appeal to the Supreme Court in State of Maharastra v. Lok Shikshan Sanstha, A Constitution Bench of the Supreme Court reversed the view taken by the High Court of Bombay on the ground that when the controversy arose, the proclamation of Emergency issued by the President of India was in force and, therefore, under Article 358 of the Constitution the validity of any law cannot be judged on the touch-stone of Article 19 during that period.
40. A division Bench of this Court in Andhra Kesari Education Socy. v. Govt. of A.P., had expressed its agreement with the opinion of the Bombay High Court in Sakharkherda's case (3 supra) observing:
"The Supreme Court, in State of Maharashtra v. Lok Shikshan Sanstha, considering the' provisions of the Grant-in-Aid Code (Maharashtra) affirmed the view taken by the Bombay High Court in Sakharkherda Education Society v. State (3 supra) in so far as the right of a citizen to establish an' educational institution is concerned. In Sakharkhedra Educational Society v. State (3 supra), dealing with the right of the minorities to establish an educational institution, the Division Bench of the Bombay High Court considered the scope of Article 19 (1) of the Constitution and observed:
"The scope of Article 19 (1) (g) and Article 30 very much differ. Article 19 (1) (g) is a general guarantee of a particular kind of fundamental right in wide words, while Article 30 is intended to guarantee certain rights to minorities and unless in the enumeration of the rights, the right of education were mentioned, probably, it would have been excluded. Hence, merely because Article 30 refers especially to educational institutions, it cannot be said that Article 19 (1) (g) does not intend to include such institution, The words 'profession or occupation or business' are of wide import and whether or not gain is made by running an educational institution, it cannot cease to be business.' Though the Supreme Court confirmed the dismissal of the writ applications by the Bombay High Court, so far as this aspect is concerned, the Supreme Court clearly recognised the existence of a fundamental right in this behalf. However, the Supreme Court did not express any final opinion on that aspect, for the matter came up for consideration at a time when the emergency was in force when no citizen could enforce the fundamental right guaranteed under Article 19 (1) (g) of the Constitution".
Another Division Bench of this Court in Matrushri Education Society, Hyderabad v. Government of Andhra Pradesh, Judt.dated 23-2-1983of A.P. High court inw.p. no. 3492 of 1983 and Batch in Writ Petition No. 3492 of 1983 and batch by its judgment dated 23-12-1983, dealt with this question directly and after noticing the Bombay decision (Sakharkherda's case, 3 supra) and its reversal by the Supreme Court held that "running of private educational institution is not a fundamental right guaranteed under Article 19 (1) (g) of the Constitution". We are inclined to agree with this view.
41. There is no direct ruling in support of the proposition advanced by the learned Advocate-General. ;
42. We may consider how the Government of India looked at the problem. "CHALLENGE OF EDUCATION - a Policy Perspective", publication N6.1517, published by the Ministry of Education, Government of India, in August 1985 expressed the view:
"Higher Education has been given a place of special importance because it can provide ideas and men to give shape to the future and also sustain all the other levels of education......
Higher education and the intelligentia nurtured by it have a special role in determining the quality of the over-all environment" (Para 1.4).
The National Policy of Education 1986 lays down that:
"In our national perception, education is essentially for all" (Para 2,1) It emphasises the concept of equality in education in no unmistakable terms:
"To promote equality, it will be necessary to provide for equal opportunity to all not only in access, but also in the conditions for success".
(Para 3.6).
The policy makes it clear thai merit shall be the primordial consideration at: higher levels. "In higher education in general, and technical education in particular, steps will be taken to facilitate interregional mobility by providing equal access to every Indian of requisite merit, regardless of his origins". Describing education as 'vital area of national life' the policy envisages "a meaningful partnership" between the Onion and the States after the subject Education was included in the Concurrent List by the Union accepting "a larger responsibility", inter alia, "to promote excellence at all level the educational. Pyramid, throughout the country".
43. The Government of India's firm resolve to effectively' curb commercialisation of professional education is reflected in clear terms in the National Policy:
"In the interests of maintaining standards and for several other valid reasons, the commercialisation of technical and professional education will be curbed. An alternative system will be devised to involve private and voluntary effort in this sector of education, in conformity with accepted norms and goals". (Para 6.20).
44. Privatisation of professional education by permitting private institutions to admit students in disregard of merit by collecting capitation fee, surely, is not the alternative system visualised; it will not be in consonance with the accepted norms and goals. Where monetary considerations are involved, voluntariness disappears. Where merit is side-tracked, excellence is undermined. Education cannot be equated with trade or business. The very concept of education rules out commercial connotation. Earning money for livelihood or profit is integral to any occupation, trade or business.
45. The Legislative declaration in the preamble of Act. 5 of 1983 that collection of capitation fee is an evil practice which must be curbed in order to maintain excellence received judicial assent by a Division Bench of this Court in Writ Petition No. 3492 of 1983 and batch, dated 23-12-1983 (6 supra). Paradoxically, the State is now pleading in defence of such a capitation fee founded upon the assertion that right to establish an educational institution is a fundamental right. The future and well being of the community as a whole is inextricably interlinked with education system in general and higher education in particular. Right to establish educational institutions cannot, therefore, be angulated from a commercial point treating it as an occupation, trade or business, so as to enable individuals and associations to indulge in acts of commercialisation.
46. Bangalore Water Supply v. A. Rajappa, , is no authority for the proposition that a teacher is a 'workman' and an educational institution is an 'industry'. The question whether a citizen has a fundamental right to set up an educational institution did not fall for consideration either directly or indirectly in that case. What constitutes an 'industrial dispute' under Section 2 (j) of the Industrial Disputes Act was the question dealt by the Supreme Court. Educational activity was viewed from the angle of the Industrial Disputes Act for the purpose of extending the provisions of the beneficial legislation to non-teaching employees of a University. Employment of labour for the purpose of running an institution was the thief factor that weighed with the Court in holding that 'education' is an 'industry'. This is evident from the observations of Krishna Iyer J.:
"The pejorative assumption seems to be that 'industry' is something vulgar, inferior, disparaging and should not be allowed to sully the sanctified subject of education. In our view, industry is a noble term and embraces even the most sublime activity. At any rate, in legal terminology located in the statutory definition, it is not money-making, it is not lucreloving, it is not commercialising, it is not profit-hunder. On the other hand, a team of painters who produce works of art and sell them or an orchestra group which travels and performs and makes money may be an industry if they employ supportive staff of artistes or others.
We have to look at educational activity from the angle of the Act, and so viewed the ingredients of education are fulfilled. Education is, therefore, an industry and nothing can stand in the way of that conclusion," The predominant: nature of the services rendered makes an undertaking 'industry' although "those who are not workmen by definition may not benefit by the status." A. Sundarambal v. Govt. of Goa, Daman & Diu, clarifies the legal. position. Venkatramaiah, J. (as he then was), speaking for the Court, after noticing the observations in Bangalore Water Supply case (7 supra) that while an educational institution was an industry it was possible that some of the employees in that industry might not be workmen, categorically ruled that teachers employed by educational institutions cannot be called 'workmen' within the meaning of Section 2 (s) of the Industrial Disputes Act.
"Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens."
What is an 'industry' under the Industrial Disputes Actcannot be approximated to 'occupation', 'trade' or 'business' under Article 19 (1) (g), and the plea raised in this regard is based on untenable assumptions. If two Acts are not cognate, judicial interpretation of a particular expression in one enactment affords no guidance to understand the same expression appearing in the other enactment, is a well-accepted canon of statutory interpretation (See S. Mohan Lai v. R. Kondaiah, .
47. Where a provision in a statute enables the State Government to take over the management of a school whenever it is found that the school is not being run in accordance with the provisions of the statute and in the interests of the students, it was held in Bharat Sevashram Sangh v. State of Gujarat, that the provision does not prejudicially affect the guaranteed fundamental right under Article 19 (1) of the management of the school sought to be taken-over. The view taken in Bharat Sevashram Sangh's case, fully accords with the law laid down by an earlier five-member Bench in Katra Education Society v. State of U.P., namely, if the management of a private educational institution fails to comply with the mandatory provisions of a law enacted in the interests of better education, the management of such an institution can be taken over temporarily and the statutory provisions in this regard do not amount to deprivation of the right to property under Articles 19 or 31 of the Constitution. From the judicial assent given to such a provision by the Supreme Court, it is impossible to draw a positive inference, as suggested by the learned Advocate-General, that a society has a fundamental right to establish an educational institution.
48. Where an organised human activity adversely affects the interests of the society as a whole, statutory curtailment or regulation was justified on the ground of public interest. A tout has no fundamental right under Article 19 (1) (g), nor can a money-lender sucessfully claim that right (Vide Fatechand v. State of Maharashtra, and In Re Sant Rant, stated differently, the decision in Bharat Sevashram Sangh's case, is an authority for the proposition that right to start an educational institution flows from the relevant statute regulating that right, and the exercise and termination of that right also are matters falling within the ambit of the statute. Any activity which has a deleterious effect on the society as a whole cannot be elevated to the level of a fundamental right. Education, which is a national responsibility, cannot be left to the ipse dixit of a private individual or association, and if such a course is permitted public interest will suffer adversely. Affirming the view of the Division Bench of this Court in Writ Petition No. 3492/83 and batch dated 23-12-1983 (6 supra) expressed by A. Seetharam Reddy J. that right to establish an educational institution is not an occupation, trade or business under Article 19(1)(g) of the Constitution, we overrule the decision in Andhra Kesari Education Society v. Government of Andhra Pradesh (5 supra).
49. We reject the plea of the State that the right to education is not at all a fundamental right except in regard to minorities on whom such a specific right is conferred under Clause (1) of Article 30. Clause (2)'of Article 29 confers a specific enforceable fundamental right on every citizen by injuncting that no educational institution maintained by the State or receiving aid out of State funds can deny admission to any citizen on grounds only of religion, race, caste, language or any of them. Even the seemingly unqualified right of minorities under Clause (1) of Article 30 must yield to the general superior right under Clause (2) of Article 29 with the only exception carved out in favour of the weaker sections under Clause (4) of Article 15. (See State of Bombay v. Bombay Education Society, and Champakam Dorairajan v. State of Madras, ). Article 29 (2) is predicated upon the permanent and enduring concern of the State with education and from this seminal responsibility the State cannot withdraw or distance itself either openly or obliquely as that would obliterate the very right itself. A necessary corollary to this is the citizen's right to compel the State to fulfil its constitutional obligation. Recognition to an educational institution is accorded by the State to make education meaningful and purposeful. It, therefore, follows that the broad sweep of Article 29 (2) embraces the right to seek admission to any educational institution recognised by the State. (Also see: St Stephen's College v. University of Delhi., ).
50. Whether Section 3-A permits collection of capitation fee by private managements? According to the learned Advocate-General, the impugned Section 3-A merely exempts private educational institutions from the impact of Section 5 but does not exhort them to collect capitation fee. As already noticed, Section 5 prohibits collection of capitation fee by any educational institution. What is 'capitation fee' ? Jowitt' s Dictionary of English Law, Volume-I (P. 285) gives the meaning of 'capitation fee' as "fee for each person dealt with by the person who receives it". In the context of Section 3-A, the person (student) seeking admission pays the capitation fee and the institution granting admission. receives it. Under Section 2(b) of the Act, whatever amount collected in excess of the fee prescribed by the Government under Section 7 is capitation fee. When a private educational institution is released from the shackles of prohibition as to collection of capitation fee imposed by Section 5 and the requirement of admission of students based upon the ranks secured by them in the entrance test and reservations in favour of weaker sections and others as laid down in Section 3, it is very clear that the institutions are free to collect capitation fee. There is little difference between granting permission affirmatively to collect capitation fee and negatively lifting the ban on such collection. Section 3-A was enacted on the ground that private educational institutions are at present financially unviable and if unaided private educational institutions are denied financial aid from willing students "their development will become extremely tardy and it will be difficult to maintain excellence in the standards of education". It is, therefore, clear that Section 3-Anecessarily leads to the consequence of collection of capitation fee by private educational institutions for granting admissions.
51. It is urged by the learned Advocate-General and the other Counsel appearing for private managements that the impugned Section 3-A does not in any manner throw merit overboard but, on the other hand, it takes care of merit by insisting upon the requirement of a pass in the entrance test. The arguments run along these lines : Higher ranking in the entrance examination or higher percentage of marks in the qualifying examination does not objectively reflect the merit of the candidate. Even students with high intelligent quotient (I.Q.) some times fail to measure up to the requisite levels in examinations due to various reasons. The very examination system is faulty and defective; it does not ensure objective assessment of merit. The suitability of a candidate for a particular professional course depends essentially upon the mental framework, psychological disposition and aptitude, and above all the environment in which the candidate was brought up. It is, therefore, neither just nor proper to confine consideration for admission to persons securing higher ranking and omitting others with lower ranking without taking into consideration the other relevant factors. When the Legislature in its wisdom felt mat a pass in the entrance examination is a reason good enough for admission to private unaided professional and technical colleges, the same cannot be faulted by judicial review.
52. It is true that the existing system of examinations and selections are not infallible, but it is equally true that no better method less infallible has so far been evolved. The possibility of the existing system leading to faulty assessment in stray cases certainly cannot be a valid and legitimate ground to discard the system; any deviation will not only defeat the desired object, but will undoubtedly result in a chaotic situation - caprice and whim instead of relevant and ascertainable criteria will rule the situation.
53. Where the number of aspirants are more and the seats to be filled are less necessarily there must be a selection, and unless such a selection is found to be arbitrary or in any other manner illegal it cannot be interfered with.
54. In Chitralekha v. State of Mysore, the validity of the procedure evolved by the Government of Mysore to regulate admissions to medical colleges by constituting selection committees was questioned. It was contended that the system of selection by interviews and viva voce is illegal as it enables the interviewers to act arbitrarily and to manipulate results and, therefore, violative of Article 14 of the Constitution. Rejecting the contention Subba Rao J. (as he then was) speaking for the majority of the Constitution Bench observed:
"In the field of education there are divergent views as regards the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other additional tests, such as interview, performance in extra-curricular activities, personality test, psychiatric tests, etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one......So long as the order lays down relevant objective criteria the entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter. In this case the criteria laid down by the Government are certainly relevant in the matter of awarding marks at the interview."
This view was followed in State of A.P. v. L. Narendra Nath, in which the validity of conducting entrance examination for admission to medical colleges was at issue. After referring to the aforesaid observations in Chitralekha's case, Mitter J., speaking for the four-member Bench observed:
"........in the case before us the marks obtained at the University only make the candidates eligible to appear at the written test and it is the last test which is the determining factor as to who should be admitted and who should be rejected."
Rejecting the contention that entrance test was substituted for the University qualifying examination the learned Judge held:
"The written test was not in substitution of the University examination but it was something additional to that and the mere fact that a written test had been introduced in the year 1970 would be no ground for holding that the method of selection was invalid......The number of seats being limited compared to the number of applicants every candidate could not expect to be admitted. Once it is held that the test is not invalid the deprivation of personal liberty, if any, in the matter of admission to a medical college was according to procedure established by law."
55. In support of his contention that departing from the ranking in entrance examination would not amount to disregarding merit, the learned AdvocateGeneral relied upon Jagdish Saran v. Union of India, and Pradeep Jain v. Union of India, Neither of these two cases supports such a proposition. In Jagdish Saran's case (19 supra) a rule reserving 70 per cent of the seats at the post. graduate level in the discipline of Medicine to Delhi graduates was questioned on the ground that the same was violative of Articles 14, 15 and 16 of the Constitution. The record placed before the Court was not sufficient for expressing any clear view as to the legalityof the rule, but at the same time it was felt that 70 per cent reservation was:
"too high at the post graduate level in the half proved circumstances." (per Krishna Iyer J.) The Court, 'therefore, directed the Delhi University to appoint a time-bound committee to investigate the justification for and the quantum of reservation at the post graduate level from the angle of 'equality of opportunity' for every Indian by taking into consideration the other constitutionally relevant criteria indicated in the judgment. The learned Judge expressed the view that constitutional equality is a dynamic concept which should be moulded by the variables of life, like the educational backwardness of a region or woeful deficiency in medical services in that region;
"The purpose of such a policy is to remove the existing inequality and to promote welfare-based equality for the denizens of the backward regions."
In Pradeep Jain's case (20 supra) Bhagwati J. (as he then was), explained what is meant by merit, which should govern the process of selection to medical colleges and other institutions of higher learning:
"It undoubtedly consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic subjects and infinite capacity for hard work, but that is not enough; it also calls for a sense of social commitment and dedication to the cause of the poor."
The learned Judge agreed with the view expressed by Krishna Iyer J., in Jagdish Saran's case (19 supra) that it is a plus point of merit that if a candidate belongs to a University catering to a deprived region. Laying stress on the fact that the abstract legal principle of equality in law should not lead to inequalities in fact, the learned Judge stressed the need to resort to affirmative action by the State by providing for protective discrimination in favour of weaker sections of the community. Although such an affirmative action apparently appears to be discriminatory it is calculated to produce equality on a broader basis. The departure from merit was justified by the Supreme Court only to the limited extent of saving affirmative action from being struck down as violative of the equality clause. This is made explicit by the observations of the learned Judge:
"The scheme of admission to medical college may, therefore, depart from the principle of selection based on merit, where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals."
Neither of these two cases even remotely suggests that merit could be disregarded in the matter of selections to institutions of higher learning. On the other hand both the decisions emphasise the fact that merit should be the criterion except in cases involving protective discrimination infavour of the weaker sections of the society. Pradeep Jain's case (20 supra) lays down:
"The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore,always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country....... it would be against national interest to admit in Medical Colleges or other institutions giving instruction in specialities, less meritorious Students when more meritorious students are available.......... The primary consideration in selection of candidates for admission to the medical colleges must, therefore, be merit".
56. The plea that because the State provides reservations in favour of Scheduled Castes, Scheduled Tribes and Backward Classes, the principle of merit has already been departed from, and so in respect of non-reserved sections also such a departure can be made is totally misconceived and legally unsustainable. There is no question of advanced sections of the society comparing themselves with the weaker and disabled sections for the purpose of securing admissions to educational institutions or posts in Government or public corporations. Advanced sections of society and weaker sections do not stand on the same footing. We need not over-emphasise this fact in view of the plethora of case law on this aspect (See State of Kerala v. N.M. Thomas, AIR 1926 SC 490 and State of M.P. v. Niveditha Jain, . In Rajendran v. State of Madras, adverting to this aspect it was ruled by the Supreme Court:
"The object of selection can only be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talent from the two sources."
57. Interplay of historical forces contributed to the social disabilities of certain sections and, therefore, the society has an obligation to compensate them is the philosophy behind reservations. In the words of Andro Beteille:
"Indeed, the examination system as well as the job market favours those who start with better resources and better motivation, both of which are products of their superior position in society. Those who lack these need some compensation if there is to be any prospect of achieving substantive as opposed to merely formal equality."
(Andre Beteille "The Idea of Natural Inequality and Other Essays", pp. 94-95,1983 Edition).
58. Prof. John Rawls, a renowned American Jurist also expresses the view :
".....undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities to. be somehow compensated for.......to provide genuine equality of opportunity, society must give more attention to those with fewer native assets and to those born into the less favourable social positions."
(John Rawls, "A Theory of Justice", p. 100.) The ultimate goal of compensatory principle in our Constitutional Jurisprudence is to wipe out the very existence of collective identities that suffer from social and economic disabilities and prejudices.
59. In the prevailing circumstances there being no better acceptable method of assessing the comparative merit of students for admission to professional colleges than by conducting an entrance examination, such assessment must necesssarily be with reference to the ranking obtained in the entrance examination. When seats are less and aspirants are more the selection must invariably be in the order of merit except in matters covered by protective discrimination.
60. The main contentions advanced before us broadly raise the following questions for resolution:
i. Whether Section 3-A is violative of Article 14 of the Constitution ?
ii. Whether the declaration of law by the Supreme Court in Mohini Jain's case (1 supra) constitutes a binding precedent under Article 141 of the Constitution of India ?
iii. Whether Section 3-A is void under Article 254 by reason of its being repugnant to certain laws made by Union Parliament and inoperative on the ground that the field is occupied by Central legislation?
61. Re. (i):- The root argument in many a constitutional adjudication rests, like the present one, upon Article 14. The British concept of 'Equality before law' and the American doctrine of 'Due process of law' adumbrated in the V and XIV Amendments of the United States Constitution have inspired the Founding Fathers of our Constitution to enact Article 14. The decisions rendered by the American Supreme Court interpreting the XIV Amendment which injuncts that no State shall deny to any person within its Jurisdiction the equal protection of the laws, have greatly influenced our constitutional jurisprudence in the interpretation of Article 14. Reference to a few relevant decisions of the U.S. Supreme Court is not out of context.
62. Interpreting the Fourteenth amendment, Justice Field in Barbier v. Connolly, (18) 113 U.S. 27 said:
"that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and conditions ...-."
Equal protection of the laws is a pledge of the protection of equal laws implying thereby that unequal laws are violative of the Fourteenth Amendment is as much a doctrine of American Constitutional law as it is-in respect of Article 14 of our public law. Legislature is allowed wide discretion in the selection of classes, and a mere classification will not render an enactment unconstitutional so long as it has reasonable basis. The test earlier evolved by the American Supreme Court and restated with clear articulation by Justice Sutherland in Frost v. Corporation Commission., (19) 73 Law. Ed. 489-488 = 278 U.S. 524-523 ".... mere difference is not enough; the attempted classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis."
The learned Judge also laid down the proposition that:
"the purpose of the clause in respect of equal protection of the laws is to rest the rights of all persons upon the same roof under similar circumstances."
63. Justice Douglas, one of the renowned judges of the U.S. Supreme Court, had to consider in Harper v. Virginia State Bd. of Elections, 383 U.S. 663 = 16 Led. 2d. 169 the legality of the provisions of the Virginia Constitution requiring the payment of a poll tax as a voting qualification. Speaking for the majority, he said:
"We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard............Wealth, like race, creed, or colour, is not germane to one's ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race are traditionally disfavoured.. .......To introduce wealth or payment of a fee as a measure of a voter's qualification is to introduce a capricious or irrelevant factor. The degree of the discrimination is irrelevant."
64. There is a plethora of case law on Article 14 of our Constitution; volumes have been written and spoken. The last word is yet to be said on the everwidening ambit and scope of Article 14. Like the American Due Process, our Equality Clause under Article 14 is elusive of exact static apprehension. The essential ingredients of the American public law with regard to the Fourteenth Amendment have been accepted and adopted by our Supreme Court as the guiding factors in the interpretation of Article 14. On the question of permissible classification under. Article 14, a seven-member Bench of our Supreme Court in Budhan Choudhary v. State of Bihar, after reviewing the Indian case law and citing certain U.S. decisions stated the law thus:
"It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which. distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
65. Certain other propositions which were already holding the field in American Constitutional law were also brought within the ambit of Article 14 by judicial interpretation in Ram Krishna Daltnia v. Justice Tendolkar, . A new dimension was added to Article 14 in E.P. Royappa v. State of Tamil Nadu, to the effect that it encompasses arbitrariness also. Bhagwati, J (as he then was) expanded Article 14:
"Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16............ They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality."
Elaborating the concept of Article 14, the same learned Judge (BhagwatiJ) in Maneka Gandhi v. Union of India, observed:
"Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality ornon-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14".
Elaborating the concept further in Ajay Hasia v. Khalid Mujib, he described Article 14 as:
"....a Judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality..........the concept of reasonableness and nonarbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution."
66. From reasonable classification having rational nexus with the object sought to be achieved, the reach of Article 14 now extends to striking down actions of the State if they are arbitrary or unreasonable. It is not shackled permanently to one period or one concept..
67. According to the learned counsel for the petitioners, the impugned Section 3-A classifies students into rich and poor, those who can afford to pay capitation fee and those who cannot, and, therefore, the classification is arbitrary. Even if it is to be treated as a reasonable classification, still the section must be struck known as the classification has no rational nexus with the object sought to be achieved, namely, maintaining excellence in educational institutions. On the other hand, according to the learned 'Advocate-General, the impugned section classifies institutions, but not students, into those receiving aid from the Government and those not receiving such an aid. In the case of the latter the restriction regarding prohibition of capitation fee is lifted and development of education being the object, there is clear nexus between the classification and the object sought to be achieved. In his submission the objects must be culled out by reading harmoniously all the three enactments-1982 Act, 1983 Act and the impugned 1992 Act.
68. Development of education system, its reformation and organisation consistent with national policy and making education an instrument for establishing and strengthening our socialist, secular and democratic society and thereby promote national integration are the objects of 1982 Act as stated in its preamble. The provisions of the Act which have already been synoptically referred to supra seek to give effect to these objects.
69. The 1983 Act was enacted to provide for regulation of admission in educational institutions and to prohibit the collection of capitation fee. These objects are sought to be achieved through the various provisions incorporated in the Act which have already been mentioned by us.
70. Then comes the impugned Act enacting Section 3-A which becomes part of the 1983 Act. In the beginning, under the 1982 Act private individuals were permitted to establish educational institutions, but the same was prohibited by inserting Section 20-A by the A.P. Education Amendment Act, 1987 thus leaving only societies and associations to apply for establishment of educational institutions. The 1983 Act supplements the 1982 Act in so far as admissions to educational institutions are concerned, by prohibiting collection of capitation fee. Reformation, organisation and development of education system concaved of by the 1982 Act must take place within the confines of regulating admissions by prohibiting capitation fee as enjoined by the 1983 Act. The impugned Section 3-A which becomes part of the 1983 Act cannot strike a discordant note. Its so called fresh tune cannot put the principal Act out of tune with the statutory objectives. It is fallacious to contend that the objective of development of education could be achieved by regulating admissions without prohibiting the collection of capitation fee. Development of education must necessarily be by regulating admissions and prohibiting capitation fee.
71. The classification of educational institutions under Section 3-A as suggested by the learned Advocate-General into those which receive aid from the State and those which do not, in our considered view, does not pass muster under Article 14. What for the classification is done? It is only for the purpose of enabling the second category to collect capitation fee for granting admissions. Could it be said that it has rational nexus with the claimed object, namely, development of education? Our answer is emphatically in the negative. The object is development of education by maintaining excellence-both are interwoven and inseparable. There can be no development of education under the 1982 and 1983 Acts unrelated to maintenance of excellence. Even the Statement of Objects and Reasons for the impugned Section 3-A makes it clear. By departing from the principle of merit that is by disregarding the ranking secured by the students in the entrance test, it cannot be said that excellence can be achieved or maintained. What is merit we have already discussed earlier. The situation leads to the emergence of two categories of educational institutions, one according admissions based upon the ranking secured by the students in the entrance examination and the other not adhering to that principle. The former category conforms to the principle of merit, and the latter disregards it. The very classification itself is, therefore, irrational and unreasonable.
72. Viewed from the point of students, Section 3-A classifies them into those who can afford to pay capitation fee and those who cannot. Affordability of capitation fee becomes the only criterion for classification of students placed in similar circumstances. A student belonging to a non-reserved category securing a higher rank will not be in a position to get admission if he is unable to pay the capitation fee, whereas another student with wealthy background but securing the same or a lower rank can gain admission solely on the basis of his affluence by paying capitation fee. Equals are thus treated unequally. This classification on the basis of wealth is patently arbitrary and unreasonable.
73. How Section 3-A subverts merit is evident from the fact that in its implementation it will result in creation of less number of seats for merited candidates and more number of seats in favour of non-merited students. There are at present nine medical colleges in the State and the total number of seats available in these colleges in the first year course is 1,040. 48 per cent of these seats are reserved in favour of Scheduled Castes, Scheduled Tribes, Backward Classes, Physically disabled persons, children of defence personnel etc., leaving 536 seats for open competition. In the twelve medical colleges now proposed to be established, the total seats are 1200. Out of this 1200,600 are ear-marked for management quota and from out of the balance of 600,48 per cent will be covered by reservations leaving a balance of only 312 seats under the merit quota. Thus out of a total of 2240 seats which will be available if Section 3-A is implemented, the number of seats for open competition is reduced to 848, which works out to 38 per cent. Equality Clause is thus breached; the total percentage of reserved seats under all categories shall not be far in excess of 50 per cent (vide Balaji v. State of Mysore, " and Asif Hameed v. State of J & K.),
74. Shri Ayyapu Reddy and Shri E.R. Manohar, learned counsel appearing for some of the private managements have urged that as the impugned legislative measure is result of the policy decision of the Government to increase facilities for professional and technical education and also provide for the much needed health services to the people which on a survey are found to be lacking. As the finances of the State cannot permit shouldering of a responsibility of this magnitude, the only course open is to allow private managements to establish educational institutions to achieve these objectives. The State has undertaken the intricate exercise of balancing of interests-providing educational facilities and health services but at the same time saving the revenue of the State-and, therefore, this Court should not interfere with the impugned legislation. The learned Advocate-General while advancing similar contentions has asserted that the legislative wisdom should not be faulted by this Court and there is no great sanctity or legal sanction behind adhering to the ideological concept of socialism in undertaking the welfare measures. The obligation of the State in the field of education is subject to the limitation engrafted in the Directive of Article 41 which lays down that within the limits of its economic capacity the State should make effective provision for securing the right to education.
75. Although attractive, these contentions do not merit acceptance in the context of the present adjudication. Notwithstanding the plea of the State that economic considerations and welfare goals induced such a legislation, we do not want to go into the factual question as to what percentage of the income from public revenues was allotted for the development of educational and health needs of the people, and whether such percentages are in consonance with the instructions and guidelines laid down by the concerned expert bodies and the National Education Policy.
76. Legislative wisdom is entitled to great deference. But when the wisdom manifests in the form of a legislative measure which when filtered through the lens of law should withstand the rigour of strict judicial scrutiny to pass muster as a valid law. When a law fails to satisfy the tests of Article 14, it is the duty of this Court to strike it down. We cannot abnegate or abdicate our responsibilities. Nearly two centuries ago Chief Justice Marshall, the architect of the doctrine of judicial review cautioned:
"The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other is treason to the Constitution." (Cohens v. Virginia, Per Marshall C.J. 19 U.S. (6 Wheat) 264, 404 (1821) cited in 1988 Law Quarterly Review Vol. 104 p. 422 T.R.S. Allan, Pragmatism And Theory In Public Law.) Legislative policy and wisdom must operate within the constitutional limitations. That a particular measure was conceived of in the best interest of the State by the majority of the legislators by itself and without anything more is no defence in judging its constitutionality. The law-maker sometimes is understandably unhappy that judges are vested with the power to strike down laws enacted by the Legislature. The situation is neither enigmatic nor anomalous; judicial power is an inseparable part of the totality of governance ordained by the Constitution. What a distinguished Harvard Professor said in this context:
"After all every right protected by the Constitution is a right protected against the majority legislation" (Prof. Lawrence H.Tribe and Michael C. Dorf, "On Reading The Constitution" Harvard University Press, 1991 Edition, p. 29) very realistically highlights the importance of judicial review of legislative action.
77. The endeavour on the part of the learned counsel to equate legislative judgment in the economic field especially in matters pertaining to resolutionof problems of increasing supplies, equitable distribution and availability of essential commodities at fair prices to the general public bears no analogy to legislative measures brought about in the field of education. The precedent cited-Shri Meenakshi Mills v. Union of India, has no relevance.
78. The resultant classification under Section 3-A serves no public purpose. It only leads to entrenchment of class bias. Reservation in favour of affluent sections of society without any rationally ascertainable and legally permissible criteria undermines our constitutional objectives. The presumption of constitutionality which attaches in general to legislative enactments is reversed in the case of assessment of merit by the yard stick of wealth. The classification runs counter to the concept of welfare State, the bedrock of our constitution. Equality of opportunity for every person in the country is the constitutional guarantee; a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best is the dictum in Jagdish Saran v. Union of India (19supra). Wealth affords opportunities and necessary atmosphere for development of physical and intellectual pursuits. Students belonging to affluent classes, therefore, must secure admission on the strength of their merit, but not on the ground of any reservation. Affluence or capacity to pay can never be a valid consideration for reservation. Section 3-A fails to satisfy the twin tests of reasonable classification and the rational nexus sought to be achieved by the classification. By providing reservation for affluent sections in disregard of merit and by classifying students on the basis of consideration of wealth, Section 3-A falls a foul of Article 14.
79. Some of the learned Counsel appearing for the petitioners have urged that lack of guidelines - as to situations with reference to ranking in the entrance test and persons with reference to paying capacity indicating variables as to the quantum of capitation fee-renders Section 3-A invalid. In our view, very little is the impact of this factor on the constitutionality of Section 3-A as it has failed to pass the permissible tests under Article 14 on the aspects of classification, reasonableness and arbitrariness and so the presence of absence of guidelines becomes a non-issue. Even with guidelines, it is impossible to extricate Section 3-A from the coils of unconstitutionality : the Karnataka Government's notification on capitation fee, which was struck down by the Supreme Court in Mohini Jain's case (1 supra), despite containing enough guidelines, is a clear pointer.
80. Section 3-A considered from the point of view of deprivation of the existing reservations infavour of weaker sections renders itself vulnerable to successful attack as contended by Shri B. Tarakam, learned Counsel for some of the petitioners. It allows management quota of 50 per cent in the existing unaided private engineering colleges (at present there are no private medical or dental colleges in the State) without adhering to the principle of merit and prohibition of collection of capitation fee. There are 17 private engineering colleges in the State and the total number of seats available in these colleges in the first year of the course is 4250. In respect of all these seats the existing reservations under Article 15 (4) are to the extent of 48 per cent, which works out to 2040 seats. Section 3-A will result in the exclusion of 2145 seats (50% of 4250) from the purview of reservations as the same will be earmarked for management quota. The existing 48 per cent of reservation will henceforth be confined only to 2145 seats instead of 4250. The reserved seats out of 2145 will come down to 1030.
81. Reservation of seats under Article 15 (4) in educational institutions in favour of socially and educationally backward classes of citizens and Scheduled Castes and Scheduled Tribes and reservation of posts in their favour under Article 16 (4) can no-longer be treated as acts of charity or grace (vide State of Kerala v. N.M. Thomas (21 supra); K.C. Vasanth Kumar v. State of Karnataka, .
82. The Directive Principle in Article 46 obligates the State to protect the educational and economic interests of the weaker Sections. The Special Officer for Scheduled Castes and Scheduled Tribes appointed by the President under Article 338 of the Constitution is charged with the duty of investigating all matters relating to the safeguards provided for these sections. Although persons belonging to weaker sections have no constitutionally enforceable right to approach mis Court for a direction to the State to effect reservations, when once such reservations were provided by the State they could not be terminated in the absence of any valid reasons like cessation of the need for reservations on the grout td that considerable social and educational advancement has been achieved and the disparities between them and the advanced sections have disappeared. No such plea was raised by the State before us. On the other hand the plea of the State is that with a view to providing more reservations Section 3-A was brought into being. Inasmuch as Section 3-A in its actual application wipes out to a great extent the existing reservations in favour of Scheduled Castes and Scheduled Tribes and Backward Classes without any valid reasons, we are of the view that the impugned provision is arbitrary on this score.
83. In testing the validity of a legislative measure on the touch-stone of Article 14, we are conscious of the imperative to avoid disintegration and hyperintegration approaches To say that there should be no private educational institution at all would be hyperintegration of Article 14 as that would deprive the State of its legitimate power in the field of education. On the other hand, to say that the State has power to establish educational institutions either by legislation or by executive order without adherence to the principle of merit and with a right to collect capitation fee would amount to disintegration of the Equality Clause. The proper way of interpreting Article 14 in consonance with legal realism is that it does not prohibit the State from making a law for establishment of private educational institutions, provided the principle of merit is not disregarded and existing constitutionally protected reservations are not discarded and that the law does not offend any of the fundamental rights and is within the competence of the Saw making body. The noble ideals of immutable justice enshrined In the Preamble of our Constitution-- form an integral and inseparable part of our legal culture out of which an aspect of public policy emerges, In our considered view, dearly forbidding the State from doing anything which has the effect of either directly or indirectly converting education into a trade or business. Legislative history and judicial interpretation point out and establish the fact that collection of capitation fee is an evil practice and is against National interest; Dr. Pradeep Jain ps. Union of India and Ors. (20 supra at 1430).
84. Re.(2):- In Mohini Jain's case (1 supra) a two member-Bench of the Supreme Court considered the validity of a notification issued by the Government of Kamataka on 5-6-1989 under Section 5 (1) of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 purporting to regulate the tuition fee to be charged by the private medical colleges in the State. In respect of candidates admitted against "Government seats" annual tuition fee was fixed at Rs. 2,000/-. In respect of the students belonging to the Karnataka State, but granted admission against the seats other than 'Government seats', the tuition fee was fixed at Rs. 25,000/- perannum. The third category comprised Indian students from outside the State of Kamataka in respect of whom the colleges were permitted to charge annual fee not exceeding Rs. 60,000/-. The questions that fell for consideration in deciding the constitutionality of the impugned notification were:
(a) Whether right to education is a fundamental right ?
(b) Whether the classification of students into those who can afford to pay and who cannot, is valid ?
(c) Whether collection of capitation fee is legally sustainable ?
On all the three questions the opinion of the Court was against the respondent - Karnataka Government - and accordingly the notification was quashed. The 'right to education' it was held, flows from the constitutional objectives enshrined in the Preamble, the directives contained in Article 41 and the 'right to life and personal liberty' guaranteed under Article 21. The Court recorded the opinion that the right to education:
"is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens."
The Classification was held to be arbitrary and unreasonable:
"inasmuch as capitation fee makes the availability of education beyond the reach of the poor. The State action in permitting capitation fee to be charged by State recognised educational institutions is wholly arbitrary and as such violative of Article 14 of the Constitution of India."
It was also further held that merit and merit alone shall be the consideration for admission to the medical colleges and that:
"capitation fee in any form cannot be sustained in the eye of law."
85. The learned Advocate-General and the learned Counsel appearing for the private managements have argued that the aforesaid judgment is per incuriam since it had not noticed the binding precedents laid down by earlier larger Benches and, as a substantial question of law as to the interpretation of the Constitution had arisen, a larger Bench with not less than five Judges ought to have decided it.
86. There is no dearth of decisional law on 'per incuriam', an English law doctrine adopted by our law. Very rarely this doctrine is invoked and its application is limited to 'decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned' (See Morelle v. Vakeling, (1955) 2 QB 379). This statement of law by the Queen's Bench was accepted by the Supreme Court in Mamleshwar Prasad v. Kanahaiya Lal, holding that "the doctrine will not be extended to cases which were merely not fully argued or which appear to take a wrong view to the authorities or to misinterpret a statute". (Per Krishna Iyer J.) The quintessence of the doctrine was pithily stated in a comparatively recent English decision by Sir John Donaldson M.R.:
"I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that, had the Court had this material, it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion".(Duke v. Reliance Systems Ltd., (1987) 2 A11.E.R. 858 at 860)
87. The judgment of the Supreme Court is a law declared under Article 141 of the Constitution and it is binding on all Courts within the territory of India. In Public Vigilance v. The Govt. of A.P., 1992(1) An.W.R. 776 a Division Bench of this Court speaking through one of us (M.N.Rao J.) while considering a similar question expressed the view:
"Under Article 375 of the Constitution of India, all courts and all authorities throughout the territory of India shall continue to exercise their respective functions subject to the provisions of the Constitution. Under Article 141 the law declared by the Supreme Court shall be binding on all Courts within the territory of India. In the hierarchical set up of the Courts in our country, as ordained by the Constitution, the High Court compared to the Supreme Court exercises jurisdiction of an inferior nature. The decree granted by a higher Court must be obeyed by the lower court. Any attempt, either directly or indirectly, to enquire into the validity or otherwise of the decree granted by the higher court would be subversive of judicial discipline, and negation of law."
In B.M. Lakhani v. Malkapur Municipality, one of the questions that fell for consideration was whether the High Court, on the ground that certain relevant provisions of law were not brought to the notice of the Supreme Court, could refuse to follow the law laid down by the Supreme Court ? Emphatically rejecting the plea Shah J. (as he then was) speaking for the Court made the legal position explicit:
"The decision was binding on the High Court and High Court could hot ignore it because they thought that 'relevant provisions were not brought to the notice of the Court'."
In Kausalya Devi v. Land Acquisition Officer, Aurangabad, IR 1984 SC 892 at 896. 42. (1972) 1 All.E.R. 801. the same view was expressed in greater detail:
".... in view the provisions of Article 141 of the Constitution, all Courts in India are bound to follow the decisions of this Court. Judicial discipline requires and decorum known to law warrants that appellate directions should be taken as binding and followed".
After stating this, the Supreme Court referred to the speeches of Lord Hailsham, Lord Reid and Lord Diplock in Broome v. Cassell and Co., (1972) 1 All.E.R. 801 which are to the effect that in the hierarchical system of Courts it is incumbent for each lower tire to accept loyally the decisions of the higher tires, and a judge of a lower court cannot disregard the decision of a higher court and that the judicial system works only -
"if some one is allowed to have the last word and if that last word, once spoken, is loyally accepted."
88. Hie endeavour of the learned Advocate-General was to convince us that the judgment of the Supreme Court in D.P, Joshi v. The State of Madhya Bharat and Anr., 1955 SCR 1215. decided by a larger Bench of five Judges had approved the collection of capitation fee and so the smaller Bench which decided Mohini Jain's case (1 supra) could not lay down a different proposition. We do not agree. As D.P. Joshi's case, 1955 SCR 1215 was specifically referred to and interpreted in Mohini Jain's case (1 supra) it is not open to us to independently enquire into the question as to what is the exact ratio laid down in Joshi's case, 1955 SCR 1215. When the Supreme Court lays down clear propositions of law, we are precluded from resorting to any interpretative process for the purpose of ascertaining whether those propositions could logically emerge from the issues that fell for consideration. There is no precedent to the effect that the Supreme Court has accorded its approval to any decision rendered by a High Court in which an enquiry of the aforesaid nature was done by the High Court. A smaller Bench of the Supreme Court interpreting the law laid down by a larger Bench as per incuria,,i, as was the case in State of U.P. v. Synthetics and Chemicals Ltd. , affords no guidance to us in this regard.
89. We, therefore, decline to accede to the request to accede to the request to record a finding on the question raised before us as to the competency of a twomember Bench of the Supreme Court to decide a substantial question of law as to the interpretation of the Constitution. We must mention in this context that such an objection was not raised in Mohini Jain's case (1 supra) even by the respondents. We, therefore, hold that under Article 141 of the Constitution of India the declaration of law in Mohini Jain's case (1 supra) binds us.
90. Re. (3): The question for consideration is whether Section 3-A is void under Article 254 by reason of its being repugnant to certain laws made by Union Parliament and inoperative on the ground that the field is occupied by the Central legislation.
91. According to Shri Kannabhiran, learned Counsel for one of the petitioners, after the insertion of Section 12-A in the University Grants Commission Act 1956, (hereinafter referred to as "the UGC Act"), with effect from 1-10-1984 by Section 3 of the University Grants Commission (Amendment) Act, 1984, repugnancy has arisen between Section 3-A of the 1983 State Act and Section 12-A of the U.G.C. Act, a law made by Union Parliament. No law made by the State Legislature touching upon a subject already occupied by Central legislation could prevail unless the assent of the President was obtained for such a State law under Article 254(2) of the Constitution.
92. The learned Advocate-General says that unless repugnancy as a fact is found between the provisions of the State law and the Central law this Court cannot declare the State law inoperative on the ground of repugnancy under Article 254(1). Shri Manohar, learned Counsel appearing for one of the private managements, has submitted that Section 12-A of the U.G.C. Act falls within the ambit of Entry 66 of List-I and, therefore, Article 254 is not attracted.
93. Shri Raghuram, learned Counsel for certain students who passed the Entrance examination securing rankings between 2500 and 6500 for admission to B.E. Degree Course, has contended that as Union Parliament has enacted All India Council for Technical Education Act, 1987 (Act 52 of 1987) which covered the entire field, the 1983 Education Act including the impugned provision, Section 3-A, enacted by the State Legislature, should be declared void and inoperative. Suggestively, the learned Advocate-General also advanced a similar contention that if we are to strike down Section 3-A invoking the doctrine of repugnancy under Article 254, the entire 1983 Act should go, as a consequence of which the restriction on prohibition of collection of capitation fee and the requirement of admitting students on the basis of merit also would disappear.
94. As already noticed, education was originally a State subject - Entry 11 of List-II-and by virtue of the Constitution (Amendment) Act, 1976 it became a concurrent subject - Entry 25 - with effect from 3-1-1977. Entry 26 of List-Ill deals with legal, medical and other professions. Entry 66 of List-I relates to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. The U.G.C. Act, 1956 was enacted, as its long title indicates, for regulation and determination of standards in the Universities and for that purpose to establish a University Grants Commission. Chapter-Ill deals with powers and functions of the Commission. Section 12-A was inserted in the UGC Act by Section 3 of the UGC (Amendment) Act, 1984 with effect from 1-10-1984. The newly inserted Section deals with regulation of fee and prohibition of donations in certain cases. Subsection (1) of Section 12-A defines expressions like 'College, 'student', 'University', 'qualification' and other related terms. The definition of 'college' comprehends every institution in the country which provides for a course of study leading to awarding of a degree or any other qualification recognised by a University. Sub-sections (2) and (3) are in the following terms :
"12-A (2) : Without prejudice to the generality of the provisions of Section 12 if, having regard to -
(a) the nature of any course of study for obtaining any qualification from any university;
(b) the type of activities in which persons obtaining such qualification are likely to be engaged on the basis of such qualification;
(c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring, so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study; and
(d) all other relevant factors, the Commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the University or Universities concerned, specify by regulations the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such date as may be specified in the regulations in this behalf, by any college providing for such course of study from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study:
Provided that different matters and different scales of fees may be so specified in relation to different universities or different classes of colleges or different areas.
(3) Where regulations of the nature referred to in Sub-section (2) have been made in relation to any course of study, no college providing for such course of study shall -
(a) levy or charge fees in respect of any matter other than a matter specified in such regulations;
(b) levy or charge fees in respect of any matter other than a matter specified in such regulations;
(c) accept, either directly or indirectly, any payment (otherwise than by way of fees) or any donation or gift (whether in cash or kind), from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study."
95. Sub-section (2) clearly expresses the legislative intention: by reason of economic power, no student should be allowed to secure admission to any course of study preventing the admission of a more meritorious candidate, is one of the objects it seeks to achieve. In order to give effect to the legislative intention, power is conferred on the University Grants Commission to make regulations in the public interest after consultation with the university or universities concerned prescribing the matters in respect of which fees may be charged, and the scale of fees in regard to the specified courses. When such regulations are made in respect of any course of study, Sub-section (3) makes it obligatory that no college providing for the specified course of study shall charge fees contrary to the regulations, nor can it directly or indirectly accept any payment or donation or gift from any student in connection with his admission or prosecution of the specified course of study. If any college contravenes the provisions of Sub-section (3) it is liable for action by the University Grants Commission which may after issuing notice prohibit such college from presenting any students to any university for the award of any degree or other qualification.
96. We are concerned with three disciplines of education - Medical Education, Dental Education and Technical Education. The Indian Medical Council Act, 1956 is a law made by the Union Parliament and it falls within Entry 66 of List-I and this is evident from the Statement of Objects and Reasons. Section 3 empowers the Central Government to establish a body called 'Medical Council of India' a legal person by virtue of Section 6. Section 19-A which was inserted by Section 11 of the Indian Medical Council (Amendment) Act, 1964 with effect from 16-6-1964, and it empowers the Medical Council of India to prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than post-graduate medical qualifications) by universities or medical institutions in India. Section 20 contemplates Post-graduate Medical Education Committee for assisting the Medical Council of India in matters relating to post-graduate medical education.
97. The Dentists Act was enacted in 1948. The Statement of Objects and Reasons discloses that the enactment was made, inter alia, for constituting an Indian Dental Council with responsibility for laying down standards of education and training of dental practitioners. Section 3 is concerned with the constitution and composition of the Dental Council. Section 10 deals with recognition of dental qualifications. Section 16-A inserted by Act 42 of 1972 with effect from 1-11-1972 relates to withdrawal of recognition of recognised dental qualifications. The procedure contemplated in Section 16-A enables the Central Government to control effectively the institutions imparting dental education. Section 20 confers power on the Central Council to make regulations and the said power encompasses prescribing the standard curricula and conditions to admission to courses for training of dentists.
98. The All India Council for Technical Education Act, 1987, enacted by Union Parliament, came into force with effect from 28-12-1987. It is a comprehensive legislation dealing with technical education in all its aspects. All programmes of education, research and training in engineering technology, architecture, Town planning management, Pharmacy and Applied arts and crafts are covered by the definition of 'technical education' (Section 2(g)). All institutions offering courses or programmes of technical education are covered by the definition of 'technical education' in Clause (b). Section 3 empowers the Central Government to establish a Council by the name All India Council for Technical Education. Chapter-Ill comprising Sections 10 and 11 relates to powers and functions of the Council. Section 10 lays down that it shall be the duty of the Council to take all steps as it may think -
"for ensuring co-ordinated and integrated development of technical and management education and maintenance of standards".
The specific functions of the Council are enumerated in Section 10; they encompass inter alia, the power to "fix norms and guidelines for charging tuition and other fees." (Section 10(1 )(j)); grant approval for starting new technical institutions and for introduction of new courses or programmes io consultation with the agencies concerned (Section 10(1)(k)); take all necessary steps to prevent commercialisation of technical education (10(1)(h); provide guidelines for admission of students to technical institutions and universities imparting technical education (10(1)(o)). Elaborate norms and standards have been prescribed by the All India Council for Technical Education in exercise of this statutory power under Section 10.
99. Before the Constitution Forty Second (Amendment) Act, 1976 when education was a State subject, the judicial interpretation was to the effect that:
"Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in the Parliament. Use of the expression 'Subject to' in Item 11 of List-II of the Seventh Schedule clearly indicates that legislation in respect of excluded matters cannot be undertaken by the State Legislatures." .
In Chitralekha v. State of Mysore (17 supra at page 1830) it was held:
"- that if the law made by the States by virtue of entry 11 of List-II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legislative power of the Parliament under the Entry "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the impact of the State law providing for such standards on entry 66 of List-I is so heavy or devastating as to wipe out or appreciably abridge the central field it may be struck down. But that is a question of fact to be ascertained in each case."
100. Interpreting Section 19-A of the Medical Council Act, the Supreme Court held in State of M.P. v. Nivedita Jain (22 supra at 2054):
"Though the question of eligibility for admission into the medical curriculum may come within the power and jurisdiction of the Council, the question of selection of candidates out of the candidates eligible to undergo the medical course does not appear to come within the purview of the Council."
In State of A.P. v. L. Narendara Nath (18 supra at 2564) interpreting Entry 66 of List-I, the Supreme Court held :
"It has no relation to a test prescribed by a Government or by a university for selection of a number of students from out of a large number applying for admission to a particular course of study even if it be for higher education in any particular subject."
And in that view sustained the power of the State Government to prescribe entrance examination for admission to medical colleges.
101. The decisions rendered prior to the Constitution Forty Second (Amendment) Actclearly point out that the power of Union Government under Entry 66 of List-I would not preclude the State Legislature from enacting a law or the Executive from issuing orders regulating admissions to professional colleges under Entry 11 of List-II. But the position was radically altered after education became a concurrent subject. The field relating to admission of students to professional and degree colleges in fully occupied by Section 12-A of the U.G.C Act in general and in particular Section 10 of the All India Council for Technical Education Act, 1987. Interpreting Entry 25 of List-Ill and Entry 66 of list-I the Supreme Court held in Osmania University Teachers Association v. State of A.P., "Entry 25, List-Ill relating to education including technical education, medical education and Universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List-I. Entry 66, List- I and entry 25, list-Ill should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to coordinate and determine the standards for higher education. The power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state that such a coordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to 'education' has been distributed between List-I and List-Ill of the Seventh Schedule."
102. In every federal set up, where the Constitution carves out concurrent field for the Union and States to legislate, the problem of reconciliation between the laws enacted by the two different law-making bodies necessarily surfaces. The doctrine of repugnancy confined to the concurrent field as evolved in the Constitutional Law of Australia is:
"The concept of inconsistency centres on the occurrence of direct conflict between laws but is not limited to that situation. There may be a conflict between the intentions of two legislatures which is not expressed in actual inconsistency between the terms of the statutes enacted. This happens where the Commonwealth intends its Act to be a complete statement of the law on a given subject and a State intends its own Act also to apply to that subject. There may be no detailed conflict because on some topics within the general subject matter the Commonwealth has not legislated whereas the State has, and in other respects the legislation's identical. There is none the less a substantial inconsistency between the legislative intention of the Commonwealth and the legislative intention of the State. Irrespective of detailed inconsistency or compatibility the Commonwealth intends its own Act to be the law. In such a case the State Act is displaced."
(Colin Howard, "Australian Federal Constitutional Law" Second Edition, Page 28).
There is no need for any actual inconsistency between a State law and a Central law if the Union Parliament has expressed its intention to occupy the field. This principle originating in Australia was accepted by the Supreme Court in State of Orissa v. M.A. Tulloch & Co., .
"Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation". (Per Iyyanger. J.) The above view was followed by a later Constitution Bench of the Supreme Court in M. Karunanidhi v. Union of India, .
103. The absence of regulations under Section 12-A of the UGC Act, therefore, does not alter the legal position as the legislative field regarding collection of fee and prescription of standards for admission is fully occupied. As A.P. Act 12 of 1992 enacting Section 3-A had not received the assent of the President under Clause (2) of Article 254, we declare it void and inoperative under Clause (1) of Article 254.
104. As the unamended 1983 Act (Act No. 5 of 1983) has not be enchallenged, it is unnecessary for us to decide whether the said Act if challenged would have survived judicial scrutiny and, therefore, we do not wish to express any opinion on the submissions made by Shri G. Raghuram. We reject the similar pleas discernible in the arguments of the learned Advocate-General. The State cannot challenge the validity of its own laws. This is a well settled legal position.
Doctrine of Severability and Section 3-A ;
105. The petitioners in Writ Petition Nos. 9843 and 9731 of 1992 have secured rankNos. 1284and 1347 respectively in the entrance examination for admission to the MBBS Course. They will not get admission into any of the existing I medical colleges based on their ranking, but if the proposed 12 medical colleges ' in the private sector are allowed to function restricting admissions strictly on the basis of merit without collecting capitation fee both of them will be J admitted. Shri Ramalingeswara Rao, learned Counsel for the petitioners, says that the "offending portions" of Section 3-A should be struck down and the rest of the Section sustained by applying the doctrine of severability. According to him the spirit pervading the entire 1983 Act overwhelmingly lays stress on the aspect of merit and prohibition of collection of capitation fee. Seriously disputing the details mentioned in the counter-affidavit filed by the State Government as to the estimated cost of Rs. 35 Crores for establishing a hospital with 700 beds, the learned Counsel has invited our attention to the reply affidavit filed by his clients in which it is asserted that the cost of construction of buildings, establishment and maintenance charges and cost of equipment would come to Rs. 7.75 Crores according to the norms prescribed by the Medical Council of India and the cost of medical education per student would approximately come to Rs. 15,000/- per year.
106. These statistics are disputed by the learned Advocate-General. What is the estimated cost for establishing a medical college and how much expenditure a student will have to incur for completing the medical course are questions failing outside the ambit of the present adjudication. It is for the appropriate authority to examine these questions in greater detail in the interest of medical education.
107. Deviation from merit and exemption from the prohibition of collection of capitation fee are inextricably interwoven into Section 3-A and without them the Legislature would not have enacted the residue independently. The intention of the Legislature is clear from the express language employed in Section 3-A and the Statement of Objects and Reasons dispels doubts, if any, in this regard. The doctrine of severability was comprehensively considered by a Constitution Bench of the Supreme Court in R.M.D. Chamarbaugwalla v. Union of Indid, 1957 SCR 930 at 951. One of the propositions Said down by the Supreme Court is:
"Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 219-219."
The aforesaid rule of interpretation directly applies to the impugned Section 3-A: the alleged offensive portions and the residue form part of a single scheme intended to be operative as a whole. We, therefore, reject the submissions of Shri Ramalingeswara Rao, and dismiss the two Writ Petitions 9843 and 9731 of 1992.
Writ Appeal 813 of 1992:
108. In Writ Petition 9221/92 Shri Janardhan Reddy, the Chief Minister of Andhra Pradesh was shown as the second respondent. The State Government is the first respondent. The prayer in the writ petition is for a wit of Certiorari, to quash Section 3-A. When the writ petition came up for admission before our learned brother Eswara Prasad J, an objection was taken by the learned Government Pleader that the writ petition should be dismissed so far as the second respondent is concerned as he is neither a necessary nor a proper party. The averments in the affidavit filed in support of the writ petition on this particular aspect are to the effect that the second respondent had taken a policy decision to allow several private educational institutions to come up and he was responsible for the impugned legislation. The learned Judge has sustained the objection and dismissed the writ petition against the Chief Minister observing that:
"Under our Constitution, the executive cannot impose its will on the legislature. An Act of legislature or the Parliament cannot be struck down on the ground that it is influenced by the executive. When the impugned Act cannot be challenged on the ground that it is brought about by the influence of the second respondent, the second respondent is neither a necessary nor a proper party to the writ petition and the averments contained in the affidavit relating to the said allegations are irrelevant for the purpose of challenging the impugned enactment."
109. Challenging the correctness of the said order Writ Appeal 813/92 was filed. Shri Tarakam, learned Counsel for the appellant has urged before us the very same contentions advanced before the learned single Judge. We do not agree with the submission of Shri Tarakam that Section 3-A is the manifestation of the private motives of the Chief Minister. It is a well-settled principle of Constitutional law that no motive can be attributed to the Legislature, and so we cannot go behind the alleged legislative facade to discern the motives of the Executive. We are in entire agreement with the reasoning given by our learned brother Eswara Prasad J. The writ appeal is, therefore, dismissed.
Admissions already made by Private Colleges under Section 3-A :
110. Under the impugned Section 3-A unaided private educational institutions are empowered to admit students against the management quota, "subject to such rules as may be made in this behalf"
by the State Government. The Commissioner of Technical Education, Government of Andhra Pradesh had sent a telegram on 26-7-1992 to all the 17 private engineering colleges in the State asking them not to admit any students under the management quota. Even by 14-7-1992, this Court had admitted writ petitions challenging the legality of Section 3-A. The telegram was issued by the Commissioner with a view to preventing them from granting admissions under the management quota by collecting capitation fee from innocent students. But we are dismayed to hear that certain colleges like Vasavi College of Engineering, Hyderabad and Koneru Lakshmaiah Engineering College, Vijayawada even by 26-7-1992 had completed admissions under the management quota. The submissions of Sarvasri Ramana Reddy and M.R.K. Chowdary, learned Counsel for these two institutions are that, as Section 3-A empowered the private institutions to fill up seats under the management quota there was nothing illegal in taking advantage of the statutory provision. The private colleges, according to them, are not able to function effectively because of the poor state of their finances - the fee prescribed by the State Government under Section 7 of 1983 Act is not at all sufficient for managing the institutions.
111. We are not concerned with the financial position of the private engineering colleges. The action of the managements of private engineering colleges in filling the seats under Section 3-A in the absence of rules is clearly illegal. They acted not only illegally but with undue and uncalled for haste displaying unedifying commercial attitude towards educational matters. A learned single Judge of this Court while admitting the first case in this batch passed an interlocutory order that all admissions made would be subject to the result of the writ petition.
112. In the circumstances, as Section 3-A is unconstitutional, the students admitted against the management quota by the private unaided engineering colleges in the State have no right to continue.
113. We, therefore, direct that all the managements of private unaided engineering colleges in the State shall refund the entire amounts collected from the students for granting admissions for the academic year 1992-93 within four weeks from today and the seats so vacated shall be filled afresh in accordance will the provisions of 1983 Act (Act 5 of 1983) and the rules made thereunder without reference to the impugned Section 3-A. Failure to comply with these directions shall entail automatic cancellation of the recognition of the institutions and accrual of a consequential right in the students /their parents to initiate civil action for recovery of the fees paid and for damages.
114. Shri Ayyapu Reddy, learned Counsel for Apollo Hospital and Bommidala Trust which have been granted permission to set up a medical college and a dental college respectively has brought to our notice the Indian Medical Council (Amendment) Ordinance, 1992 and the Dentists (Amendment) Ordinance, 1992 which came into force during the hearing of these writ petitions and contended that his clients have already "established" hospitals pursuant to the orders issued by the State Government consequent to the enactment of Section 3-A. Section 10(C)(1) is couched in both the Ordinances in identical language and it reads :
"10(C)(1): If, after the first day of June, 1992 and on and before the commencement of the Indian Medical Council (Amendment)Ordinance, 1992 any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity, such person, or medical college, as die case may be, shall seek, within a period of one year from the commencement of the Indian Medical Council (Amendment) Ordinance, 1992, the permission of the Central Government in accordance with the provisions of Section 10-A of the principal Act."
115. Faragraph3 of each of the twenty orders issued by the State Government permitting establishment of 12 medical colleges and 8 dental colleges, specifically lays down that the:
"Society (grantee) shall apply immediately and secure the requisite affiliation from the University of Health Sciences and also seek recognition of the Medical Council of India (Dental Council of India in the case of Dental College) duly fulfilling the conditions prescribed by the authorities concerned."
Neither affiliation has been obtained nor the requisite recognition by the Medical Council of India/Dental Council of India accorded to any society so far. This position is not in dispute. It is, therefore, not open to any of the societies to contend that it 'has established' a medical college or dental college within the meaning of Section 10(C)(1) of the aforesaid two Ordinances. We do not want to make any further observations in this regard as these two Ordinances are not questioned before us.
116. This may perhaps dispose of the challenge against the individual orders also, the validity of which, depends upon the validity of Section 3-A. But, in view of the elaborate arguments addressed before us and the insistence of Counsel that challenge against those orders also may be separately dealt with, we propose to consider those cases separately.
117. The statutory rules in G.O.Ms. No. 250, Health, Medical and Family Welfare (E-l) Department, dated 22-5-1992 and G.O.Ms. No. 198, Education (EC) Department, dated 20-5-1992 contain an identical provision (Rule 12) to the effect that admission to the medical and engineering colleges shall be as per Section 3-A. As Section 3-A is unconstitutional, Rule 12 of the aforesaid statutory rules also must be set aside.
118. In the result, granting judicial review we declare Act No. 12 of 1992 unconstitutional and accordingly strike down the impugned Section 3-A. Consequently, Rule 12 of G.O.Ms. No. 250, Health, Medical and Family Welfare (E-l) Department, dated 22-5-1992 and Rule 12 of G.O.Ms. No. 198, Education (EC) Department, dated 20-5-1992 are struck down.
119. For the reasons stated and the conclusions arrived at in the two judgments, Writ Appeal 813/92 and Writ Petitions 9731 and 9843 of 1992 are dismissed; Writ Petition 10264 /92 is allowed to the extent of setting aside Rule 12 of G.O.Ms. No. 250, dated 22-5-1992; Writ Petition 9661 /92 is deleted from the list and it shall be posted along with W.Ps. 13,14 and 15/92 before appropriate Bench ; Writ Petitions 9221, 9231, 8248, 9852, 8817, 8582,10125,10058, 9816, 10281,10313, 9824, and 9825 of 1992 are allowed as indicated striking down Section 3-A and Rule 12 of G.O.Ms. No. 250 dated. 22-5-1992 and G.O.Ms. No. 198, dt. 20-5-1992 and the Consequential orders granting permission to establish Medical and Dental Colleges. Writ Petition 9946/92 is allowed with a direction to Respondents 1 to 3 to admit the petitioner in the First Year Engineering Course in accordance with his rank in the Muslim minority quota as per Section 4 of Act 5/1983 and Writ Petition Nos. 8592,8698,9187,9809 and 10687 of 1992 are disposed of in the light of the above judgments,
120. We express our deep appreciation of the excellent manner in which the arguments proceeded on either side.
121. Immediately after the pronouncement of the judgment, the Advocate General moved an oral application to grant leave to prefer an appeal to the Supreme Court under Article 134-A of the Constitution of India.
122. We have rested our decision entirely on the law laid down by the Supreme Court in respect of the different points which have arisen before us. We do not therefore, find that this batch of cases involves a substantial question of law of general importance which needs to be decided by the Supreme Court. The Advocate General also requested us that the judgment may be suspended for a period of two weeks to enable the State to approach the Supreme Court for necessary orders. In view of the fact that no private educational institution has been finally established pursuant to the enactment of Section 3-A, nor admissions commenced, nor affiliations from the concerned Universities and recognition from the concerned statutory bodies (Medical Council /Dental Council) obtained, we do not find any need or justification to accede to the request.
123. We therefore, dismiss the oral application for leave as also the request to suspend the operation of the Judgment.