Andhra HC (Pre-Telangana)
Sims College Of Physiotherapy, Guntur vs University Of Health Sciences on 12 February, 1998
Equivalent citations: 1998(2)ALD499, 1998(4)ALT447, AIR 1998 ANDHRA PRADESH 192, (1998) 2 ANDHLD 499, (1998) 4 ANDH LT 447, (1998) 1 LS 340
ORDER
1. This is the second round of litigation. In the first round of litigation the petitioner-College filed writ petition No.6278/97 questioning the action of the respondent herein in refusing to grant affiliation to the College for starting Physiotherapy course after obtaining necessary directions from the Government for the academic year 1996-97 vide G.O.Ms.No.404, dated 20-02-1996.
2. Having heard the matter at length, by order dated 9-4-1997 this Court declared the action of the respondent/University as illegal and having set aside the letter of the respondent dated 11-3-1997 issued a consequential direction to the University to send the inspection team and take further action on the basis of the report within a period of 6 weeks from that date and communicate final orders passed on the application to the petitioner-College. Keeping the fact that the petitioner-College admitted students for the academic year 1996-97 in anticipation of the orders granting affiliation by the respondent/University as the Government has already granted permission for starting the course, thinking that granting affiliation is a formal one, I gave the following direction:
"However, it is made clear that in the event of granting affiliation to the petitioner-Society, the students admitted after affiliation alone will be eligible for taking the examination conducted by the respondent-University and if any students are admitted prior to obtaining affiliation order, they will not be considered for taking the examination unless they complete the prescribed course from the date of affiliation In other words the students that were admitted by the petitioner/College even before obtaining the affiliation orders can be considered for taking examination if they choose to undergo the training prescribed from the date of affiliation for writing the examination''
3. The reason for giving such a direction is that the University authorities did not act fairly and impartially in considering the application of the petitioner/College for grant of affiliation. While they granted affiliation to another institute Sushrutha which is similarly placed like that of the petitioner and permitted that institution to commence the course refused to grant affiliation to the petitioner-College. Such an arbitrary action being an anti-thesis to the scheme under Article 14 of the Constitution of India, I was compelled to give such a direction to protect the interest of the students who were admitted by the petitioner/College as was done in the case of Sushrutha Institute. At any rate for the mistake committed by the petitioner/College, the students who underwent the training by paying the required tuition fee should not be subjected to any hardship. At the same time they were directed to undergo training for the prescribed period from the date of granting affiliation. Before they are allowed to appear for the 1st Semester examination.
4. It is not in dispute that the University granted affiliation for the academic year 1997-98 with an intake of 40 students per year. In those circumstances, the petitioner/ College filed the present writ petition questioning the action of the University in not granting affiliation for the year 1996-97 and sought for a consequential direction to the respondent/University to conduct First Semester examination for 20 students that were admitted during the academic year 1996-97 pursuant to the permission orders given by the Government. This Court while admitting the writ petition by order dated 31-7-1997 issued notice on the interim directions. Ultimately by order dated 1-10-1997, an interim direction was given to the respondent-University to conduct First Semester examination to 20 students of DPT course for the year 1996-97 along with the candidates appearing for First Semester examination of 1997-98 batch pending further orders.
5. From the record it is seen that the above direction is given at a time when the respondent/University is taking steps to conduct First Semester examinations to the students admitted in Sushrutha Institute who failed in First Semester examination for the academic year 1996-97. It is also now on record that supplementary examinations for the Sushrutha students were completed by 21-11-1997. But the respondent-University without conducting the examinations as directed by this Court filed W.VMP.No.3390/97 seeking vacation of the interim orders granted by my learned brother Justice G. Bikshapathy. When the vacate stay petition came up before another learned brother Justice B. Sudershan Reddy, his Lordship held that as the judgment rendered-by me in writ petition No.6278/97, dated 9-4-1997 has to be incorporated and accordingly directed that the matter should be posted before me. In such circumstances the case is listed for hearing before me. I have already given the reasons that compelled me to give the direction extracted above. The above direction was given by me purposefully to save the academic interest of the students that were admitted by the petitioner/College after obtaining permission from the Government and without obtaining the affiliation orders from the respondent/ University. In the normal course as the direction given by me became final, the respondent/University would have complied with the direction and conducted the First Semester examination along with the supplementary examinations conducted for the failed students of Sushrutha Institute in the First Semester examination. In the vacate stay petition for respondents mainly contended that the University granted affiliation only for the academic year 1997-98 for a total intake of 40 students and as such the University cannot permit the students to write the First Semester examination over and above the permitted strength in a given year for the petitioner/ College.
6. Secondly, the respondent/University contended that any affiliation or recognition granted by the University is only prospective in nature but cannot be retrospective by relying on Clause 3(3) of General Statute.
7. The learned Counsel for the respondent/University finally contended that the Court may give suitable directions to prevent the collection of capitation fee by these private managements keeping in view the rules framed by the State Government in G.O.Ms.No.305-HM & FM(K2), dated 7-8-1997. I do not find any force in the first two contentions raised on behalf of the learned Counsel for the respondent. The question of permitting the students over and above the sanctioned strength in this case has arisen because of the directions given by this Court as the petitioner-Institute was subjected to hostile discrimination in granting affiliation by the respondent/University and also on the ground that they adopted different standards in dealing with the applications of different institutions. Further the Government having examined the issue from all aspects granted permission to start the course and all the objections raised by the University in refusing affiliation were dealt in depth while disposing of the writ petition No.6278 of 1997 and I have no hesitation to hold that they are all trivial objections which cannot stand to legal scrutiny. Because of the illegal actions of the respondent/University the affiliation to the petitioner/College was not granted and for that reason the innocent students who sought admission on the basis of the promise given by the petitioner/College that affiliation is only formal in nature cannot be penalised more so when the mistake is on the part of the University. Permitting the students over and above the sanctioned strength will arise only for the first batch and it is in the peculiar circumstances of the cases that has become necessitated. Further, in the statutory rules framed by the Government, the maximum number of students can be admitted in an institution shall not exceed 60. As the rules also provide for an intake of 60 students in a given year and as the permission granted by the University is only for 40 students, to the maximum extent, the students can be permitted for writing First Semester examination
8. Coming to the second contention it is true that if the University acted on its own and granted affiliation or recognition it will be only prospective in nature but in this case the University has not given any reasons more so cogent reasons for refusing affiliation for the year 1996-97 when the petitioner/College has fulfilled all the conditions stipulated for grant of affiliation. Having taken an unreasonable attitude in refusing affiliation for the year 1996-97 they cannot turn round and contend that the affiliation is only prospective but no retrospective. At any rate the University authorities have to conduct the examinations for these 20 students as per the directions of this Court in writ petition No.6278 of 1997 which become final. Hence there is no force in the contention of the respondent that the students admitted for the academic year 1996-97 cannot be permitted to sit for examinations during the academic year 1997-98.
9. Though the learned Counsel for the respondent raised an objection on the admissions made by the petitioners Counsel by contending that the rule of reservation in favour of the constitutionally permissible categories of students is not followed, he could not substantiate the same in the light of the written information furnished by the petitioner-College. Coming to the plea that the Court should give directions to prevent these private managements from collecting capitation fee, I have gone through the rules framed by the Government, in exercise of the powers conferred on it under Section 99 of the Andhra Pradesh Education Act, 1982, the scheme envisaged in these rules is as that of the scheme propounded by the Supreme Court in Unni Krishnan case i.e., 50% of the seats should be filled in on the basis of merit from among the candidates selected by the Selection Committee constituted by the University for that purpose and rest of the 50% seats can be filled up by the management. 'The only safeguard that was provided is that the list of students to be admitted have to be approved by the Selection Committee.
10. But I feel that this being a professional course more so, after completion of 10+2 study, this course squarely falls under the provisions of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983. Hence, the Government instead of allowing the private managements to admit the students on their own should think of conducting a common entrance test for allotment of the students by them to the respective colleges both for free seats and payment of seats or if the Government thinks that admissions can be made on the basis of the marks obtained by the candidates in the qualifying examination, the entire process of selection of candidates and admission should be strictly under the supervision and control of a Governmental Agency without giving any scope for the private managements to devise ways and means which may ultimately lead to the evil of collection of capitation fee behind the scenes at the cost of merit.
11. The writ petition is accordingly allowed and a direction is given to the respondent-University to conduct examinations for 18 students that were admitted during the academic year 1996-97 on completion of the prescribed period of training i.e., both for First as well as Second Semester examinations by duly complying with the directions in writ petition No.6278 of 1997. No costs.