Andhra Pradesh High Court - Amravati
Bapatla Educational Society vs Government Of Andhra Pradesh, on 10 September, 2020
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.14922 of 2020
ORDER:
This writ petition is filed with the following relief:
"To issue a Writ of Mandamus or any other appropriate writ, order or direction declaring the Proceedings No. ANU/Affiliation/SI/Bapatla Engineering College/2020 dated 12.08.2020 and 20.08.2020 issued by the 3rd respondent at the instance of other 2nd respondent is illegal and arbitrary as the respondent University is not rendering any service in respect of B.Tech., courses being run in the 2nd Petitioner College, as the 2nd Petitioner College is an autonomous institution and set aside the same and consequently direct the respondents not to insist for payment of University Service Fee or for arrears thereof, as the 2nd Petitioner College is an autonomous institution and also to grant affiliation orders to the 2nd Petitioner College as required to be issued and pass such other order......"
This Court has heard Sri N.Subba Rao, learned counsel for the petitioners and Sri Rambabu Koppineedi, counsel for the main contesting respondent Nos.2 and 3. Counter affidavit has been filed on behalf of respondent Nos.2 and 3 who are called upon to answer their actions in the writ petition. Hence, the writ petition itself is taken up for hearing.
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Learned counsel for the petitioner Sri N.Subba Rao points out that the first petitioner is a society which is running 2nd respondent-Engineering College. The second petitioner-College has been declared to be an Autonomous Institution by the University Grants Commission (UGC). The undergraduate B.Tech course is being run in the second petitioner's college under the autonomous scheme. As far as the postgraduate courses are concerned like M.Tech, M.C.A etc., they are non-autonomous and the requisite fee etc., is being paid to the University. For the postgraduate courses, learned counsel submits that there is involvement of the University in setting the syllabus etc., but as far as the B.Tech undergraduate course is concerned, learned counsel argues that the University has got nothing to do with the conduct of examinations, curriculum, revision, academic audit etc. He points out that the concept of autonomy implies that the petitioners have the right to run the undergraduate college in the manner that they want, away from all interference. Factually also, learned counsel drew the attention of the Court to the expenditures which have been incurred and states that they are spending more than the amounts collected from the students and therefore, there is no question of unlawful gain also. He questions the manner in which the blacklisting has been ordered. It is his contention that blacklisting is an order having civil consequences and no order can be passed without hearing 3 the petitioners. It is also his contention that the entire action is vitiated and he prays for an urgent hearing and dismissal, in view of the fact that the careers of students are struck in the matter.
Sri Ram Babu Koppineedi, counsel for respondent Nos.2 and 3 has argued at great length and with force stating that the action taken by the respondents is correct. He points out that the levy of service fee is permissible under the relevant rules, G.Os etc. He argues that there need not be a correlation between the fees and the services rendered. Relying upon a particular set of UGC Rules, he argues that there is a relationship between the University and the college by which the University has certain amount of supervisory role etc. Therefore, he states that as per the provisions of the Andhra Pradesh Higher Education Regulatory and Monitoring Commission Act, 2019 (Act No.20 of 2019) and G.Os issued thereunder, the respondent-University was within its rights in levying the service fee. He argues that despite notice, the service fee is not paid. Therefore, learned standing counsel argues that the blacklisting is valid and tenable.
He also relies upon the Division Bench judgement reported in CMR College of Engineering and Technology and Ors. v. The Jawaharlal Nehru Technological 4 University (Hyderabad) and Ors.1 and the other case law to argue that demand of the service fee is correct.
This Court after hearing both the learned counsel notices that as far as factual issues that are raised in the writ petition are concerned, they are hardly denied in the counter affidavit filed. Many of the issues that are thus raised are taken to be admitted in view of the lack of denial in the counter affidavit filed. In view of the lack of denial, the essential issues that fall for consideration in this case are (a) what is the concept of autonomy granted by the UGC under the current rules/regulations and (b) whether the University has a right to levy the service fee. These issues are the crux of the whole matter.
Learned counsel for the petitioner drew the attention to the prevailing UGC guidelines, which are filed as a material document. Learned counsel points out that these are new guidelines issued after the guidelines which were considered by the Division Bench of the A.P.High Court in CMR College of Engineering case (1 supra). Learned counsel points out that there is no dispute about the fact that the undergraduate courses are autonomous. Relying upon the role/terms and conditions of an autonomous college, particularly, Rule (2) (5), he argues that an autonomous college need not pay affiliation fee every year. Onetime fee can be paid at the time of 1 (2016) 6 ALD 246 5 conferment of autonomous status and the institution need not pay any affiliation fee annually. He points out that the autonomous college is given the power to review the existing courses re-design the same and prescribe its own courses. The power to formulate the new courses as per the nomenclature specified by UGC, the power to assess students' performance, conduct of examinations, notification results, issuance of mark sheets, migration and other certificates is completely given to autonomous institutions. He states that only the degree has to be awarded by the University with the name of the college printed on the degree certificate. For this a separate fee is paid. The power to fix the fees, the power to have complete administrative autonomy and the privilege of appointing their own staff are given to the autonomous institutions. He points out that the role of parent University under the current and extant set of rules is extremely limited and despite being affiliated, the college can enjoy the administrative and other autonomy. Therefore, he states that the parent University cannot impose its will on the autonomous colleges. The role of State is extremely limited and it can only provide a nominee on the expert committee, continue to provide funds to aided colleges and to ensure that all the 85% of the posts are filled. Therefore, learned counsel argues that the concept of autonomy is lost if the respondent University collects fees for curriculum division, staff training, examination related issues, academic audit etc. He also 6 argues that the blacklisting order is having civil consequences and therefore, before any order is passed, the petitioner should be put on notice as per the rule position before blacklisting is resorted to. Therefore, learned counsel prays for an order.
The learned standing counsel on the other hand argues that autonomy does not mean absolute independence. He states that in the State of Andhra Pradesh, reasonable restrictions are imposed on educational institutions by virtue of Act 20 of 2019 and the fees that is being collected etc., are being regulated. In order to ensure and safeguard the interest of students etc., the Act 20 of 2019 was enacted and the APFRC has been taking an active role in the State of Andhra Pradesh.
He relies upon the G.Os., which are annexed to the counter affidavit and particularly relies upon G.O.Ms.No.39 dated 24.06.2016 and G.O.Ms.No.15 dated 24.03.2020 to argue that all the colleges in the State of Andhra Pradesh are bound to follow the same. Relying upon the Division Bench judgement reported in CMR College of Engineering case (1 supra), learned standing counsel argued that the Division Bench has negatived very similar contentions and as the judgement of the Division Bench is still good law, the University is within its rights in demanding the fees. He submits that only a sum of Rs.1,850/- per student is being demanded as stipulated in the G.O. He also submitted that 7 this amount has already been collected by the petitioners and that therefore, they are duty bound to pay the same to the University. He contends that all the arguments that are advanced by the learned counsel for the institutions were in fact considered and negatived in the Division Bench judgement of CMR College of Engineering case. Hence, both on facts and law, learned standing counsel argues that the petitioner is not entitled to any relief.
This Court, after hearing both the learned counsel, is of the opinion that the facts that are urged are not really in dispute. That the petitioner is an autonomous college, which has been granted autonomy by the UGC is not in doubt. The UGC regulations, which have been filed are also not denied. The guidelines for autonomous colleges, which are highlighted in the UGC guidelines speak of the following:
1. Prelude:
Highlighting the importance of autonomous colleges, the UGC document on the profile of higher education in India clearly states that, "The only safe and better way to improve the quality of undergraduate education is to the delink most of colleges from the affiliating structure Colleges with academic and operative freedom are doing better and have more credibility. The financial support to such colleges boosts the concept of autonomy."8
The affiliating system of colleges was originally designed when their number in a university was small. The university could then effectively oversee the working of the colleges, act as an examining body and award degrees on their behalf. The system has now become unwieldy and it is becoming increasingly difficult for a university to attend to the varied needs of individual colleges. The colleges do not have the freedom to modernize their curricula or make them globally competent, locally relevant and skill oriented to promote employability. The regulations of the university and its common system, governing all colleges alike, irrespective of their characteristic strengths, weaknesses and locations, have affected the academic development of individual colleges. Colleges that have the potential for offering programmes of a higher standard do not have the freedom to offer them. The 1964-66 Education Commission pointed out that the exercise of academic freedom by teachers is a crucial requirement for development of the intellectual climate of out country. Unless such a climate prevails, it is difficult to achieve excellence in our higher educations system. With such a climate prevails, it is difficult to achieve excellence in our higher educations system. With students, teachers and management being co-partners in raising the quality of higher education, it is imperative that they share a major responsibility. Hence, the Education Commission (1964-66) recommended college autonomy, which, in 9 essence, is the instrument for promoting academic excellence.
With this backdrop, the UGC, which is the statutory body for higher education, has given autonomy to the colleges to decide their own methods for formulating programs to assess students, conduct the examinations, notify the results, issue mark sheets etc. They are given the absolute privilege to prescribe rules for admission, prescribe their fees and have complete administrative autonomy. Only the degree will be awarded by the University with the name of the college on the degree certificates. The role of the parent University is limited to the following:
3: ROLE OF THE PARENT UNIVERISTY To forward the application of the college for autonomous status / provide nominee on the Expert Committee / various Statutory Bodies and issue notification within 30 days for a college to function as an autonomous status is conferred on the college.
If the University does not forward the proposal / provide nominee within 30 days, it shall be presumed that the University has no objection to the processing of the proposal by the UGC for conferment of autonomous status.
The college on attaining autonomous status will continue to be affiliated to the affiliating University but will enjoy the privileges of autonomy.
The role of the State Government is limited to the following:10
4: ROLE OF THE STATE GOVERNMENT To provide nominee on the Expert Committee/various Statutory Bodies within 30 days The State Government, will continue to provide the same funds to Government / Aided colleges as they had been providing before the conferment of autonomous status.
To ensure that all sanctioned faculty positions are filled on regular and ongoing basis and that a minimum of 85% posts remain filled at all time.
As far as monitoring the colleges is concerned, the UGC guidelines prescribe IQAC cell which shall be established in the college for monitoring of the college under intimation to the UGC. If there is an adverse remark or any case of complaint, the UGC is given the power to constitute its own Expert Committee for scrutiny of any adverse report. Even with regard to the new courses, the college is given the liberty to award diploma or certificate without the prior approval of the University. The University should only be informed of such courses. For starting a degree course, the approval of the statutory council is required. Even for renaming of an existing course, the autonomous college is given the right to do so through its academic college and the University should be informed of such courses.
The autonomous college shall have its own examination cell headed by Controller of Examination. Separate Academic 11 Council, Board of Studies etc., are also provided for. The Academic Council has the power to decide on courses of study, academic regulations curriculum, affiliation arrangements, procedures etc. The regulations regarding admissions etc., are to be decided by the Academic Council. The Board of Studies will prepare the syllabus such as methods for improving teaching, coordinate research, teaching etc. Therefore, it is apparent from a reading of these rules and regulations that the college is given the liberty to decide how to run itself and how to self regulate also. The Division Bench judgement of CMR College of Engineering case (1 supra) was dealing with the UGC guidelines that existed on that date. The SCC online report that has been relied is annexed to the counter. Para 30 of this report relied upon the relationship between the parent University, State Government and other Educational Institutions. The role of the parent University was found to be significant. The Division Bench relied upon UGC guidelines as modified up to January 2013. Para 30(b) of the UGC guidelines has been reproduced in its entirety and the role of the parent University has been spelt out in the judgment. It has a role in developing their academic program; made their faculty provide the necessary guidance and participate in the deliberations of the different bodies. The parent University was given the power to depute various nominees to serve in the various committees of autonomous colleges. They were 12 also given a role in facilitating new courses of study. Therefore, in paragraph 31, the Division Bench came to the conclusion that the University had a significant role to play in the case of autonomous colleges. This rule (b) as noticed by the Division Bench has been substantially altered in the new regulations that are filed. The role of parent University is now very limited as reproduced above.
Many of the issues which were in the field of the University are now transferred to autonomous colleges like (a) the new courses (b) awarding of provisional migration and other certificates. (c) Deputation of staff to various committees and to get feed back of the college etc. Looking into the terms and conditions of the autonomous college under the latest rules, it is very clearly specified that the fees can be fixed at their own level, they will only have to pay a one-time affiliation fee and they shall have complete administrative autonomy. The State Governments' role is also absolutely limited.
As per the settled law on the subject, a judgement will depend on the circumstances or the facts of the case. In the Division Bench judgement, the submissions based were raised upon the 2013 guidelines. Even in para 33 of the report, which is filed by the standing counsel, the Division Bench relied upon the fact that the University is rendering services under examination related, academic audit related, 13 curriculum related, staff training related services. Thereafter, the Division Bench correlated the fee collected and services rendered. However, as pointed earlier in this judgement and as asserted by the learned counsel, the role of the University is now limited to awarding of a degree through the parent University (for which a specific fee is again paid). Apart from this, University is rendering no other service. This; in the opinion of the Court makes a fundamental difference.
Even the amount that is being charged which is the subject matter of the dispute is Rs.1,850/- towards common services. Absolutely nothing is spelt out as to what are the services that are actually being rendered by the University to the petitioner college under these heads. They are mentioned in the G.O. under reference, namely G.O.MS.No.15 dated 24.03.2020 and in paragraph 2(b), the service charges are set out, under seven (7) heads. When the petitioner has come on record stating that no services are being rendered by the University, this Court opines that the respondent had a duty to spell out the services which were rendering under these seven heads to the petitioner college. The same is also not done. Even if there is no need for a correlation between fees and services, still this Court holds that the respondent University had a duty to spell out its role in the issue. There is no material available before this Court to show that these seven services are being rendered by the University to the petitioner college or to similarly placed institutions. 14
As the facts before the Division Bench are different from the facts that exist today, because of the revision of the UGC guidelines, this Court is of respectful opinion that cannot follow the findings of the Division Bench. As per the law of precedents even the difference of one fact can make a difference in the applicability of the case. In the facts and circumstances of the case, which are far different from what is considered by the Division Bench, this Court has to hold that the petitioner has made out a case for interference.
Apart from this, blacklisting of an institute is an issue which has serious civil consequences. In the case of blacklisting of contractors, the law has been specifically laid down that before such an order, which has civil consequences, is passed, the party should be given a notice and also adequate hearing. In a case of this nature, where the future of students is involved a greater burden is cast on the University before taking such action.
The ratio declared in Joseph Vilangandan v. The Executive Engineer, (Pwd), Ernakulam and Ors.2 and Kulja Industries Limited v. Chief Gen. Manager W.T. Proj. BSNL and Ors.3 are applicable to the facts and circumstances of this case. The petitioner should have been given a notice based upon the relevant rule position for blacklisting and thereafter only such an order can be passed. 2 (1978) 3 SCC 36 3 (2014) 14 SCC 731 15 The same was clearly not done. No rule position/statutory provision has also been brought to this Courts notice giving the power to the University to "blacklist" the college. This is a facet of the rule of natural justice which predicates a proper notice to a party before passing an order that has such serious consequences.
Therefore, for all the above mentioned reasons, this Court is of the opinion that the petitioner-society is entitled to an order as prayed for. The writ petition is, therefore, allowed and the order of blacklisting the petitioner-college which has been passed on 12.08.2020 and the consequential letter dated 20.08.2020 are set aside. No order as to costs.
As a sequel, the miscellaneous petitions if any shall stand dismissed.
_________________________ D.V.S.S.SOMAYAJULU,J Date : 10.09.2020 KLP