Andhra Pradesh High Court - Amravati
Rayalaseema Degree Colleges ... vs The State Of Andhra Pradesh on 3 December, 2021
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY
W.P. (PIL) No.214 of 2021 and W.P.No.23662 of 2021
(Proceedings through physical mode)
W.P.(PIL).No.214 of 2021
Mala Mahanadu Aikya Vedika AP
Represented by its
State President Sri Gurram Ramarao
.. Petitioner
Versus
The State of Andhra Pradesh
Represented by its Special Chief Secretary,
Higher Education Department,
Secretariat, Tullur and 2 others.
.. Respondents
W.P.No.23662 of 2021
Rayalaseema Degree Colleges Association
Represented by its
President G.Venkata Reddy
.. Petitioner
Versus
The State of Andhra Pradesh
Represented by its Special Chief Secretary,
Higher Education Department,
Secretariat, Tullur and 1 other.
.. Respondents
Counsel for the Petitioner :
(W.P.(PIL).No.214 of 2021) Ms.Sodum Anvesha
(W.P.No.23662 of 2021) Sri M.Srivijay
Counsel for respondents : Learned Government Pleader
For Higher Education
CJ and MSM,J
wp (pil)_214_2021 and wp_23662_2021
2
COMMON ORDER
Dt.03.12.2021 (Per M.Satyanarayana Murthy, J) These two petitions are filed under Article 226 of the Constitution of India to issue Writ of Mandamus declaring the action of respondent No.1 in issuing G.O.Ms.No.55 Higher Education (CE.A2) Department dated 07.10.2021 whereby the rules pertaining to the admission into B-Category seats for various undergraduate courses in the State have been revised for the academic year 2021-22 without even taking into the consideration the plight of majority number of unaided Degree Colleges insisting all the colleges to fill up the seats with 30 % of the management quota instead of affording such concession to the management to fill up those seats with convener quota in exercise of their choice and leaving the management quota to the respective institutions by misinterpreting Sections 3 and 15 of Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (for short "Act No.5 of 1983") as illegal, unreasonable, unwarranted and violative of Article 14, 19 (1) (g) and 300-A of the Constitution of India, so also provisions of the Act No.5 of 1983 and the rules framed thereunder and opposed to the new Education Policy announced by the Government of India in the recent past and set aside the same. Consequently, direct the respondent No.2 to fill up the 30 percent management quota seats by the private unaided Degree Colleges in the State and further direct respondent No.2 not to interfere in any manner with the prerogative of the managements of the private degree colleges as regards admissions into Undergraduate Course in the management quota i.e. 30% seats.
CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 3 Though an additional ground is raised in W.P.(PIL) No.214 of 2021, as the relief claimed in both the petition is identical, we find that it is expedient to decide both these petitions by common order.
The petitioner in W.P.No.23662 of 2021 is an Association known as Rayalaseema Degree Colleges Association, represented by its President G.Venkata Reddy. Whereas, the petitioner in W.P.(PIL).No.214 of 2021 is Mala Mahanadu Aikya Vedika A.P., represented by its President Gurram Ramarao. Thus, the petitioners in both the petitions are Associations, registered under the Societies Registration Act.
The degree colleges in Rayalaseema region and other regions throughout Andhra Pradesh offering undergraduate courses in the stream of Science, Commerce and Arts, and catering the educational needs of all the students strictly adhering to the rules and regulations being framed by respondent Nos.1 and 2 without any laxity at any point of time. The Government issued G.O.Ms.No.55 Higher Education (CE.A2) Department dated 07.10.2021 after commencement of online admissions and just before the allotment of seats, and the ratio 70:30 has been fixed. As the admissions and intake of the students is being done by following the statutory guidelines of respondent No.2 - State Council for High Education which is empowered for granting the permission to the Degree Colleges to run the Institutions, there was absolutely no necessity to issue the impugned G.O. to fill the up the seats in the ratio of 70:30 that too just before the allotment of seats into various degree colleges.
It is further contended that there are number of small unaided Degree Colleges in the State, which cannot afford to fill up the 30% management quota. Hence, it is imperative for the authorities to CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 4 leave the choice of filling up the 30% under the management quota rather than insisting to fill the same through convener quota. Thus, it is incumbent on the authorities that the seats to be filled under the Management quota have to be left open for the respective colleges.
Already various unaided Degree Colleges have undertaken extensive exercise to furnish the information/ details and documents as required by law and after the students have made online application and just before the allotments of the seats, the impugned G.O. was issued detrimental to the interest of Degree Colleges, thereby depriving them to exercise their option in the matter of selection. The authorities are also aware of the fact that after grappling for over 1 ½ years with the pandemic situation created by Covid-19, in the recent past, the process of online admissions for the degree colleges has started and the allotment of seats is nearing to completion. At this stage, respondent No.1 started insisting for 70:30 ratio in the matter of admission is absolutely uncalled for and unwarranted.
The ratio of distributing the seats in 70:30 has no scientific parameter and the respondent authorities cannot apply the same ratio to all the Colleges in the State. Since 30% seats are left over to the management as Management Quota, the authorities should provide option to the Managements of choosing the ratio of their own. The convener cannot transgress into the management quota and usurp the prerogative of the unaided private college management as regards the admissions in the management quota. If the management is not in position to fill up the 30% seats under Management quota, the Convener should fill the said 30% seats also under Convener quota with the consent of the management.
CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 5 It is contended that since the admission process was completed, seats allocated and classes are commenced, the issue of impugned G.O. is a serious illegality and the same is unreasonable, arbitrary, requested to grant relief as stated supra.
The petitioner in W.P.No.23662 of 2021 also field additional affidavit raising a specific contention that the impugned rules ex-facie complementary to the Rules contained in G.O.Ms.No.34, dated 15.10.2020. Particularly Rule 3 of the Andhra Pradesh Private Degree Colleges (Admission of Students into Category - B Seats) Rules 2021 (for short "Rules 2021") provides for method of admission for category B seats and the said Rule has divided the seats in the unaided private degree colleges into category A (convener quota seats) and category B (management quota seats). Thus, Rule 3 (iii) has laid down that category A seats shall be 70% of the sanctioned intake of seats in each course/programme offered by the institute which shall be filled with eligible candidates as per the degree online admission Rules 2020 (Rules contained in G.O.Ms.No.34, dated 15.10.2020).
Further, Rule 3 (iv) has provided that category B seats shall be 30% of the total intake of seats in each course/programme offered by the institute, which shall be open for admission to all the eligible candidates on merit basis including those candidates belonging to other states/Union territories in India. Rule 3 (iv) (c) has laid down that admission to Category B seats shall also be made by the convener (admissions) through a single window system along with category A seats i.e., convener quota seats through online web based admission counselling. Rule 3 (v) has laid down that the convener (admission) shall handover the vacate category B seats if any to the institute concerned after conducting all phases of the counselling.
CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 6 Therefore, the sum and substance of the impugned Rules 2021 is that though there is a reservation of 30% of the sanctioned intake seats as management quota, the management of the degree colleges is precluded from either issuing admission notification or filling up the said management quota seats of 30% as per its discretion (subject to merit). Thus, Rule 3 of the Rules 2021 has deprived the managements of unaided private degree colleges from making any admissions to seats conferring power on the convener to make admissions to the category A seats as well as category B seats, thereby Rule 3 is arbitrary, irrational and violative of Articles 14 and 19 of the Constitution of India.
It is further contended that creation of two compartments i.e., 70% as convener quota and 30% as management quota is nothing but irrationally empowering the convener to fill up the management quota also and there is no justification much less rationale in allowing the convener to fill up the management quota and restrain the management of the unaided private degree colleges from issuing any admission notification and receiving applications on their own. Thus, the impugned Rule has virtually made the convener as the exclusive authority to admit students into category A seats as well as category B seats which itself is arbitrary, discriminatory and irrational.
When the unaided private degree colleges are recognised and affiliated to the concerned university, the parent Act i.e., Act No.5 of 1983 only prohibits collection of capitation fees and profiteering in the matter of admissions. The Act does not envisage the management quota seats to be filled up by the convener, particularly in the absence of any common entrance test as regards the degree courses CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 7 which are also called as under-graduate courses. Thus the impugned Rule does not suggest any reason or rhyme for deprivation of the prerogative/privilege of the managements of unaided private degree colleges as regards filling up of the management quota seats are concerned. Strangely the impugned Rule envisages the convener handing over the vacant category B seats to the respective unaided private degree colleges. The managements of the private degree colleges cannot be deprived of their right to fill the management quota seats and confine themselves to the unfilled category B seats after the attempt is made by the convener. Further, the Rules do not indicate any rationale or scientific reason to confer power on the convener to fill up both category A and category B seats when category B seats are captioned as "management quota seats". It is settled law that a classification made by the State must be based on an intelligible criteria with a particular object which is sought to be achieved by such classification. (Vide: Ram Krishna Dalmia v. Justice S.R. Tendolkar1 and D.S.Nakara v. Union of India2). In other words the very classification of the category A seats and Category B seats is lost its importance when the convener is exclusively allowed to fill up all the seats. Thus, in any view of the matter, the impugned Rule is arbitrary, irrational and unconstitutional a part from the fact that the impugned rule is not in conformity with the scheme of parent Act.
It is further contended that in fact para 7 of G.O.Ms.No.55, dated 07.10.2021 recognises that the decision of introducing 30% of the seats under category B will not affect the poor students belonging to the Rural part of the State and it further states that it will provide an impetus to private unaided degree colleges desirous of providing 1 AIR 1958 SC 538 2 AIR 1983 SC 130 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 8 quality education and thereby meet the standards for accreditation, the leverage provided in terms of collection of fee up to 3 times the fee fixed by the Commission for admissions under management quota will facilitate enhancing the standard of education provided in these institutions through development of infrastructure and other amenities. Keeping this in view, the government has considered the recommendations of the Commission to introduce 30% seats under category B in private unaided degree colleges. Thus, the preamble contained in paragraph No.7 in G.O.Ms.No.55, dated 07.10.2021 is completely destroyed and neutralized by Rule 3 which disables the private unaided college managements to fill up the management quota i.e., category B seats. Thus, the impugned Rule is liable to be declared as invalid and unconstitutional.
In W.P. (PIL).No.214 of 2021 the petitioner raised few additional grounds in addition to the grounds urged in W.P.No.23662 of 2021. The specific additional ground is that depriving the students admitted in Category - B seats to enjoy the benefits of Government schemes like Jagananna Vidya Deevena (RTF), Jagananna Vasathi Deevena (MTF) etc., is illegal and arbitrary. Such deprivation like Engineering and Medical students is denuding the students to prosecute college education.
It is further contended that the impugned Government Order is against the interest of the students belonging to the Scheduled Caste community inasmuch as when there are several vacant seats in different colleges, the conduct of online admission is absolutely unwarranted. Further, the Supreme Court in "T.M.A.Pai CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 9 Foundation v. State of Karnataka3" case had categorically dealt with the aspect of fixation of 70:30 ratio in the matter of admissions and it was held that such a ratio has to be fixed purely based on the local needs i.e. taking into consideration the number of students belonging to various castes. Furthermore, the number of students belonging to the Scheduled Caste community are very low in the State, the Rules framed through the impugned G.O. and the ratio of 70:30 cannot be made applicable to them. Therefore, the impugned Government Order is illegal, arbitrary and requested to set aside the same more particularly Rule 3 (iv) (h) besides various other clauses as pleaded in the writ petition.
Respondent No.1 filed counter along with vacate stay petition I.A.No.03 of 2021. Respondent No.2 also filed separate counter reiterating the contentions urged in the counter filed by respondent No.1 Respondent No.1 admitted about issue of impugned G.O.Ms.No.55 dated 07.10.2021 while contending that the said G.O. is in pari materia or identical to that of the G.O.Ms. Nos. 66 and 67, dated 12.03.2012, which deal with online admissions of Category B seats of Management quota. In fact, the said G.Os were questioned in a batch of writ petitions filed by engineering colleges and a Division Bench of erstwhile Hon'ble High Court of Andhra Pradesh upheld the same with few modifications. Therefore, it is submitted that the subject matter under challenge is covered by the judgment in W.P. No. 27777 of 2012 and batch dated 20.08.2013. On this ground alone the writ petition is liable to be dismissed.
3 AIR 2003 SC 355 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 10 It is further contended that post bifurcation, the Government of Andhra Pradesh has issued a similar G.O.Ms. No. 48 Higher Education (EC) Department dated 04.09.2021 for EAPCET which is being implemented in order to conduct admissions in a fair, transparent and in a non- exploitative manner for category B seats of Management quota. As there needs to be a uniform policy for all courses, be it professional or general, the Government came up with the G.O.Ms.No.55 Higher Education (CE.A2) Department dated 07.10.2021, wherein seat sharing of 70% under Convener quota and 30% under Management quota was evolved, in order to achieve the same objective as per the dicta laid down by the Court. The relevant paras from judgment in W.P. No.27777 of 2012 and batch are extracted in the counter. But, it is need less to extract the findings in W.P.No.27777 of 2012 at this stage, and they will be taken into consideration while deciding the issue.
The managements of certain colleges filed W.P No. 374 of 2020 and W.P No.21136 of 2021 sought for introduction of Management quota in UG online admissions. Hence in this background of the matter, the petitioners associations cannot have a policy for themselves. Therefore, respondent No.1 Government has come out with a uniform policy by issuing G.O Ms. No. 55 which is impugned herein carving out 30% of Management quota in Degree Colleges in the state of Andhra Pradesh in tune with other Higher Education courses. The crucial fact that the Convener quota of seats, i.e., Category-A itself are not being filled in toto in majority of Degree Colleges and 30% Category-B quota is now apportioned as per the dicta laid down by the Apex Court in "P.A. Inamdar v. State of CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 11 Maharashtra4", which is the right of the Management of the Colleges to fill up Category-B seats on their own, transparently without giving go-bye to merit. In fact, reservation is not applied for Category-B seats and the right to admit students in Category-B is the right given exclusively to the Management of Colleges as per the said judgment. In order to curtail collection of capitation fee while admitting management quota of Category B seats, this online procedure has been evolved, which has been upheld by this Court. Therefore, the question of usurping the power of management of colleges to admit students of their choice is not taken away in this whole process and there is no interference by the authorities as alleged by the petitioners. Accordingly the rules are framed and G.O.MS. No. 55 dated 07.10.2021 issued by respondent No.1 which cannot be treated as violative of Articles 14, 19 (1) (g) and 300A of Constitution of India as contented by the petitioners.
The respondents also furnished relevant data regarding percentage of admissions made by Degree Colleges under the control of various Universities in the State for academic year 2020-21 through online admission, which is as follows:
S.No. University Name 0%-69% 70-79% 80-89% 90%-100% 1 Acharya 98 19 7 17 Nagarjuna University 2 Adikavi Nannaya 152 8 10 4 University 3 Andhra 124 17 6 8 University 4 Dr 61 11 4 1 B.R.Ambedkar University 5 Krishna 52 8 6 4 University 6 Rayalaseema 56 11 9 4 4 AIR 2005 SC 3226 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 12 University 7 Sri 41 11 11 6 Krishnadevaraya University 8 Sri 79 12 9 10 Venkateswara University 9 Vikrama 41 6 3 5 Simhapuri University 10 Yogi Vemana 39 6 2 7 University Total 743 109 67 66 Out of the 1021 Degree Colleges, the number of Degree Colleges which made less than 70% admissions are 743 colleges. Hence the question of filling up all seats in these colleges does not arise, since there is no demand for the courses run by them as they lack proper infrastructural and instructional facilities to cater to the need of student community.
The Government of Andhra Pradesh has stipulated mandatory accreditation of all Higher Education institutions vide G.O.Rt.No.13 HE (UE) Department dated 02.02.2021 in the next three years as only 1% of the Private colleges are accredited currently. Thus, the Private Unaided Degree Colleges are required to improve their instructional and infrastructure facilities and therefore these colleges have to make sufficient investment for the same for furtherance of education and to improve quality. Hence Category-B seats which is in vogue for admission into professional colleges are introduced as an incentive to enable these colleges to reach the benchmark for accreditation, as per representations made by some of the college managements and a writ petition is filed with regard to right to have some percentage of seats under management quota in Degree Colleges. It is also a fact that 80% of Private Unaided Degree Colleges exist in rural areas in Andhra Pradesh. In fact, 72.77% of the total number of Private Unaided CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 13 Degree Colleges, majority of which are located in rural areas have made less than 70% admissions as per online admission data of academic year 2020-21. In order to provide an impetus to Private Unaided Degree Colleges desirous of providing quality education and thereby meet the standards of accreditation, the leverage provided in terms of collection of upto 3 times the time fee fixed by A.P.Higher Education Regulatory and Monitoring Commission (APHER&MC) for admissions made under Management quota will facilitate the standard of education provided in these institutions through development of infrastructure and other amenities.
The respondents also questioned right of the petitioners to maintain the writ petition under Article 226 of the Constitution of India. Unless, the bonafides are proved by the petitioners, the writ petitions cannot be allowed and liable to be dismissed in limine.
The respondents denied each and every allegation raised by the petitioners, but finally raised a specific contention that admission notification under Category-B management quota has to be issued after the allotment is made under Category A under Phase-I. Thereafter, the leftover seats in Category-A and Category-B will be handed over to the respective college managements to be filled on their own under spot admissions. None of the contentions raised by the petitioners would infringe the right of any individual or class as a whole. The Government Order was issued exercising power conferred on the Government under Sections 3 and 15 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 only to benefit the merit students and enable the private educational institutions to develop with the fee to CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 14 be collected at 3 times over the fee fixed by the APHER&MC for qualitative education and to maintain transparency. Hence, there are no merits in the case of the petitioners. It is specifically contended that the hidden agenda of the petitioners - Associations is to reimbursement of fee for all seats filled under both the categories. Hence, the writ petition is not maintainable in view the hidden challenge of the petitioners. On this ground also, the petitions are liable to be dismissed.
One of the major contentions of the respondents is that the issue relating to disentitlement of Scheduled Caste and Scheduled Tribe students who are admitted in Category-B seats to claim benefits of State Schemes is covered by the judgment in W.P.No.27777 of 2012 and the same cannot be reopened by the Bench of same strength. On that ground also, the writ petitions are liable to be dismissed, requested to dismiss the writ petitions.
During hearing, Sri Vedual Venkata Ramana, learned senior counsel limited his argument to the legality of filling up of 30% quota seats under B-category by the Convener on the ground that there is no rationale behind the rules and violative of Article 14 of the Constitution; it is vitiated by manifest arbitrariness. It is further contended that in the absence of any material as to any malpractice committed by the private colleges, their right to admit students establishing private educational institutions cannot be taken away and any rule which takes away the right of the private colleges would amount to violation of fundamental right guaranteed under Article 19 of the Constitution of India. The Member Secretary of APHER&MC did not afford any opportunity before making such proposal to the CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 15 Government for issue of those guidelines exercising power under Section 3 and 15 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983. On account of the impugned Government Order, the managements of private educational institutions are the persons seriously affected. When no notice was given to the private college managements, who are stakeholders, the impugned rules are violative of principles of natural justice apart from arbitrariness. On this ground also Rule 3 of the Rules, 2021 is liable to be struck down, requested to issue a direction as claimed in the writ petitions.
Sri P.Veera Reddy, learned senior counsel representing the advocate on record Ms.Sodum Anvesha while reiterating the contentions urged by learned senior counsel Sri Vedula Venkata Ramana, raised another ground that on account of Rule 3 (iv) (h) of the Rules, 2021, the members of the Scheduled Caste and Schedule Tribe community are being deprived of benefits of State schemes like Jagananna Vidya Deevena (RTF), Jagananna Vasathi Deevena (MTF) etc. though they are eligible for such schemes based on their economic and social backwardness. Such deprivation seriously affects the students belonging to Scheduled Castes and Schedule Tribes to prosecute their studies being the members of poor families. Unless, Rule 3 (iv) (h) of the Rules 2021 is declared as illegal and void, the eligible students belonging to Schedule Caste and Schedule Tribe cannot prosecute their future studies, who secured admission in B- Category (management quota) and their future will become bleak, requested to set aside the same.
CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 16 Learned counsel for the respondents supported the action of the State while drawing the attention of this Court to the findings recorded in W.P.No.27777 of 2012. On the strength of the same findings, learned counsel for the respondents requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the points need be answered by this Court are as follows:
(1) Whether Rule 3 (iv) of the Rules 2021 based on any rationale? If not, whether taking over admissions of Category-B Seats by the Convener himself is hit by manifest arbitrariness? Consequently, Rule 3 of the G.O.Ms.No.55 dated 07.10.2021 is liable to be set aside as it is vioaltive of Article 14 and 19 of the Constitution of India?
(2) Whether depriving the students belonging to Scheduled Castes and Scheduled Tribes, who are admitted in Category-B seats, from enjoying the benefits of State welfare schemes is arbitrary and hit by Article 14 of the Constitution of India?
P O I N T No.1:
The rules are framed by exercising power under Section 3 and 15 of the Act No.5 of 1983 which deals with regularisation of admissions into educational institutions. According to Section 3 of the Act No.5 of 1983, subject to such rules as may be made in this behalf, admission into educational institutions shall be made either on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test conducted by such authority and in such manner as may be prescribed.
CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 17 Thus, the admission into educational institutions is always subject to such rules as may be made by the Government in regard to reservation of seats to the members belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and other categories of students as may be notified by the Government.
The petitioner in W.P.No.23662 of 2021 is an association of private educational institutions, formed for the benefit of private educational institutions. The 'Educational institution' means a college, a school imparting education up to and inclusive of tenth class or other institution by whatever name called, whether managed by Government, private body, local authority or University and carrying on the activity of imparting education therein, whether technical or otherwise, and includes a Polytechnic, Industrial Training Institute and a Teachers' Training Institute, but does not include a tutorial institution. Thus, the definition of "educational institution"
covered every institution. The "private educational institution" is defined under the Section 2 (35) of the Andhra Pradesh Education Act, 1982, which is as follows:
"(35)"private institution" means an institution imparting education or training, established and administered or maintained by any body of persons, and recognised as educational institution by the Government, and includes a college, a special institution and a minority educational institution, but does not include an educational institution -
(a) established and administered or maintained by the Central Government or the State Government or any local authority;
(b) established and administered by any University established by law ; or
(c) giving, providing or imparting only religious instruction, but not any other instruction"
The petitioner association was formed for the benefit of private educational institutions as defined under Section 2 (35) of the Andhra Pradesh Education Act, 1982 and by virtue of the impugned G.O.Ms.No.55 dated 07.10.2021, the right of the members of the CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 18 association to admit students under Category-B seats is totally taken away without any rationale behind it and such rule is manifestly, arbitrary according to the contention of the learned counsel for the petitioner.
Undisputedly, the rules are framed by exercising power under Section 3 and 15 of the Act and it is a subordinate legislation passed by the Government in exercise of the power conferred on it. The validity of subordinate legislation can be examined by this Court. If it is violative of fundamental right of citizens or lacks legislative competency to pass such subordinate legislation, the Court can interfere and set aside such subordinate legislation.
The issue regarding classification of seats as Convener quota and Management quota at the rate of 70:30 is already decided by co-ordinating bench of the High Court of Andhra Pradesh in W.P.No.27777 of 2012. Hence, the issue cannot be re-opened by this Court. Therefore, we are in concurrence with the judgment of co-ordinating bench regarding classification of convener quota and management quota at the rate of 70:30, while examining the legality of other clauses.
In "State of Tamil Nadu v. P. Krishnamoorthy5", the Apex Court after adverting to the relevant case law on the subject, laid down the parameters of judicial review of subordinate legislation generally thus:
"There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds:5
(2006) 4 SCC 517 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 19
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).
In the present case, the challenge to the rules is under clause (f) referred above i.e. manifest arbitrariness or unreasonableness.
The Court while considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a Rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the Court is simple and easy. Therefore, keeping in view the law laid down by the Apex Court and reiterated in "Cellular Operators Association of India v. Telecom Regulatory Authority of India6", this Court has to examine the validity of subordinate legislation, which is under challenge on the alleged ground of manifest arbitrariness/unreasonableness.
The petitioner in W.P.No.23662 of 2021 is an association fighting for the rights of private educational institutions and those educational institutions were established by the private management having control over the entire institutions including admissions, earlier. By exercising power under Section 3 and 15 of the Act, the State wanted to have control over the admissions in under graduate 6 (2016) 7 SCC 703 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 20 courses (non-technical also) made this subordinate legislation on the pretext that the private educational institutions abusing their power without considering the merit, admitting the students collecting higher amount of fee, thereby some of the students are being deprived of good education.
At this stage, it is necessary to advert to G.O.Ms.No.55 dated 07.10.2021. A bare look at the G.O.Ms.No.55 dated 07.10.2021, the reason for framing these rules is the recommendation made by the Member-Secretary, APHER & MC, but the recommendation made by the Member-Secretary, APHER & MC is not available on record. However, based on such recommendation, total intake of seats of private educational institutions are divided into 70%:30% under A and B categories respectively. Consequently, category-A seats i.e. 70% will be filled by Convener, 30% will be filled by the management, which is popularly known as „management quota‟. By virtue of this G.O., private managements have no right to notify even category-B seats and admit the students under Category -B. Convener (admissions) means Convener of Admissions nominated by competent authority for each year of admissions under the Andhra Pradesh Online Admission (for admission of the students into undergraduate courses in Arts, Science, Social Sciences, Commerce, Management, Computer Applications, Social work etc., including Honours) Rules, 2020 issued vide G.O.Ms.No.34, HE (CE) Department, dated 15.10.2020 and as amended from time to time. But the same convener is undertaking the process of admissions into „management quota‟ also in view of the rules. Rule 3 deals with method of admission for Category-B seats, which is as follows:
CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 21
3. Method of admission for Category-B seats:
(i) All the seats to be allotted for admission of candidates, under the rules notified in G.O.Ms.No.34, Higher Education (CE) Department, dt:15/10/2020, into each course/program offered by an Institute shall be classified as follows:
a. Category-A seats (Convenor Quota Seats) b. Category-B seats (Management Quota Seats)
(ii) The total number of candidates to be admitted to any course/program offered by an Institute shall not exceed the limits prescribed by the concerned affiliating University from time to time.
(iii) The Category-A seats shall be 70% of sanctioned intake of seats in each course / program offered by the Institute/which shall be filled with eligible candidates as per the rules prescribed in the Degree Online Admissions Rules 2020.
(iv) The Category-B seats shall be 30% of the total intake of seats in each course/program offered by the Institute, which shall be open for admission to all the eligible candidates on merit basis including those candidates belonging to other States/Union Territories of India
a) These seats shall be filled with eligible candidates, as per rules 3 to 7 under the Degree Online Admissions Rules 2020 or as per the procedure notified by the Government from time to time.
b) The Institute shall not issue any notification and receive the applications on their own. Notification shall be issued by the Convener (Admissions).
c) Admissions for Category-B seats shall also be made by the Convener (Admissions) through a single window system along with Category-A seats i.e., Convener Quota seats through online web-based admission counseling.
d) Convener(Admissions) shall notify the cut off dates for each stage of admissions.
e) Each Institute is hereby permitted to fix tuition fee for Category-B seats to a maximum of 3 times of the tuition fee as fixed by the APHER&MC for Category-A seats of the respective course/program offered by the respective Institute. The fee so fixed by the Institute within the above specified limit separately for each course/program shall be informed to the Convener(Admissions).
f) The Institute shall inform the seats available under Category-B seats for each course/program offered by the Institute to the Convener(Admissions).
g) Accordingly, the Convener (Admissions) shall notify the number of Category-B seats and tuition fee for each course/program offered by the Institute.
h) Candidates admitted under Category-B shall not be eligible for any of the Government schemes such as Jagananna Vidya Deevena (RTF), Jagananna Vasathi Deevena (MTF) etc.,
i) Candidates shall apply/register separately for both Category-A and Category-B seats.
j) Candidates securing a seat under Category-B quota can apply for Category-A seats in subsequent rounds of counseling.
(v) The Convener (Admissions) shall handover the vacant Category-B seats, if any to the Institute concerned after conducting all phases of the counseling.
(vi) The Institute shall fill, on merit basis, such vacant Category-B seats handed over by the Convener(Admissions) in each course/program CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 22 offered by the Institute. The vacant Category-B seats in each course/program shall be filled with eligible candidates through institutional spot admission ensuring merit and transparency as prescribed in rules 3 to 7, 9, 11 and 12 under the Degree Online Admissions Rules 2020 or as per the procedure notified by the Government from time to time.
(vii) The Institute shall obtain ratification from Convener (Admissions) for all such admissions.
(viii) The Convener (Admissions) shall prepare the final list of candidates, admitted course/program-wise and Institute- wise and send the same to the concerned Institute and their affiliating University.
(ix) All candidates registered for online web based admission counseling shall upload copies of the certificates in the web portal which shall be verified by the designated verification officer. However, the Institute concerned shall verify the original certificates of candidates admitted to the institutions at the time of reporting to the Institute.
(x) Any complaint/appeal against the selection shall be made to the Andhra Pradesh Higher Education Regulatory and Monitoring Commission (APHER&MC).
(xi) The managements shall comply with the above instructions and failure in implementing the same shall entail actions as per the relevant Acts and Rules in force.
Thus, the entire control over the admissions into Category-B seats i.e. management quota was taken over by the Government by virtue of these rules.
In view of the specific plea raised by the petitioners about the manifest arbitrariness and unreasonableness, it is necessary to examine the factual issues based on the counter filed by the respondents.
Respondent No.2 filed a detailed counter with details of admissions in the educational institutions in the State. At the cost of repetition, the table showing the details of admission is extracted hereunder, S.No. University Name 0%-69% 70-79% 80-89% 90%-100% 1 Acharya Nagarjuna 98 19 7 17 University 2 Adikavi Nannaya 152 8 10 4 University 3 Andhra University 124 17 6 8 4 Dr B.R.Ambedkar 61 11 4 1 University 5 Krishna University 52 8 6 4 6 Rayalaseema 56 11 9 4 University 7 Sri Krishnadevaraya 41 11 11 6 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 23 University 8 Sri Venkateswara 79 12 9 10 University 9 Vikrama Simhapuri 41 6 3 5 University 10 Yogi Vemana 39 6 2 7 University Total 743 109 67 66 In 743 colleges, admissions are less than 70% for the year 2020-21. Hence, the question of filling up all seats in these colleges does not arise, since there is no demand for the courses run by them as they lack proper infrastructural and instructional facilities to cater to the need of student community.
This judicial admission in the counter of respondent Nos.1 and 2 is suffice to conclude that the educational institutions under the control of various universities in the State are not able to fill 70% seats in their colleges during last year i.e. equivalent to convener quota. The colleges where admissions are less than 70% are 743, 70%-79% are 109, 80%-89% are 67, 90%-100% are 66 as per the details furnished in the table extracted above.
In view of information furnished by respondents, in almost all institutions, they are unable to fill the seats due to lack of demand for the courses run by them, as they allegedly lack proper infrastructural and instructional facilities. Now, by virtue of these rules, 70% seats were allotted to „convener quota‟ and 30% to „management quota‟, that too, entire process to fill-up all seats is by the convener alone. In those circumstances, the question of filling category-B seats by 743 colleges, whose admissions are less than 70% does not arise, thereby, the question of collection 3 times fee higher than the fee fixed by APHER &MC does not arise. Similarly, colleges which filled 70 to 79% are 109 and at best, they may fill 10% in management quota leaving CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 24 20% without admissions. Likewise, other colleges also. Total, colleges are 985. Out of 985 colleges, majority of the educational institutions are unable to fill even one seat under category-B. Even according to the allegations made in the paragraph No.12 of the counter filed by respondent No.1, the State has stipulated mandatory accreditation of all Higher Education institutions vide G.O.Rt.No.13 HE (UE) Department dated 02.02.2021 in the next three years, as only 1% of the Private colleges are accredited currently. For accreditation, the Private Unaided Degree Colleges are required to improve their instructional and infrastructure facilities and therefore these colleges have to make sufficient investment for the same for furtherance of education and to improve quality. Hence Category-B seats which is in vogue for admission into professional colleges are introduced as an incentive to enable these colleges to reach the benchmark for accreditation, as per representations made by some of the college managements. In the present case, private educational institutions i.e. major degree colleges are not in a position to fill even convener quota of 70% as per the information furnished by the respondents themselves. In such case, question of collecting 3 times higher fee in addition to the fee fixed by APHER&MC does not arise and also the question of improving their infrastructural and instructional facilities to get accreditation with the universities is impossible for them. Similarly, those educational institutions, who are able to fill 79% of intake, which is inclusive of convener and management quota of 10% may also not be in a position to improve their infrastructural or instructional facilities to meet the guideliens fixed by the State vide G.O.Rt.No.13 HE (UE) Department dated 02.02.2021. At best, 133 (67+66) colleges, where admissions CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 25 are 80-89% and 90-100% may be in a position to improve their infrastructural or instructional facilities by collecting higher fee for the management quota up to three times of the fee fixed by the APHER&MC, which are minimum in the State. The fact situation pleaded by respondents is clear that the intention of the State is to shutdown all private educational institutions imparting education in undergraduate courses to various students in the State.
Undisputedly, major part of colleges are in rural areas, where rural students are being accommodated in those colleges. Due to lack of facilities, admissions were not at least upto 70% covering convener quota in 743 colleges, most of them are located in rural areas. In those circumstances, the Managements will have no option except to close the institutions subject to compliance of various provisions of the Education Act, governing management of private educational institutions. Even it is difficult for them to meet the daily expenses i.e. for maintenance, salaries etc. Hence, the idea behind the issue of the Rules 2021 appears to close down the private educational institutions in the rural areas disabling them to maintain their institutions meeting the expenditure and by improving their infrastructural or instructional facilities to accredit their institutions as per the guidelines issued in G.O.Rt.No.13 HE (UE) Department dated 02.02.2021.
The respondents, though, stated reasons for enacting such rules fixing 70% and 30% to the convener and management, it is contrary to the fact situation prevailing in the State as per table mentioned in the counter filed by both the respondents. Absolutely, there is no reason for dividing 70% and 30% for both convener and management quota when the seats under convener quota are not CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 26 being filled in 743 colleges in the State of Andhra Pradesh as mentioned in the table. Therefore, such division of seats and taking power to fill all the seats by the convener himself both under convener and management quota by issuing notification by convener himself, preventing private educational institutions to issue such notification is nothing but arbitrary exercise to deprive the private college managements to run their institutions and taking over the entire education system under the control of State, indirectly.
As discussed above, in view of the principles laid down by the Apex Court in "State of Tamil Nadu v. P. Krishnamoorthy" and "Cellular Operators Association of India v. Telecom Regulatory Authority of India" (referred supra), this Court can exercise its power to interfere with the subordinate legislation and set aside the same if it is found manifestly arbitrary or unreasonableness.
What is "manifestly arbitrariness" or "unreasonableness" are not defined anywhere. Under the broad head "manifestly arbitrary", and "unreasonable restrictions" learned Counsel argued that without there being any fault on the part of the educational institutions, such restriction was imposed, the same is contrary to any norm of law or justice and contended that it is violative of Article 14 of the Constitution of India, as the act of respondents totally depriving the educational institutions meeting the standards for accreditation by improving infrastructural and instructional facilities, thereby such act can be said to be manifestly arbitrary and unreasonableness.
CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 27 What is „reasonableness‟ came up before the Apex Court in "the Lord Krishna Sugar Mills Ltd. v. Union of India7", wherein it is held as follows:
"It is, however, contended that though one can look at the surrounding circumstances, it is not open to the Court to examine other laws on the subject, unless those laws be incorporated by reference. In our opinion, this is a fallacious argument. The Court in judging the reasonableness of a law, will necessarily see, not only the surrounding circumstances but all contemporaneous legislation passed as part of a single scheme. The reasonableness of the restriction and not of the law has to be found out, and if restriction is under one law but countervailing advantages are created by another law passed as part of the same legislative plan, the Court should not refuse to take that other law into account."
The countervailing advantage provided by APHER&MC to collect three times higher fee fixed by it while filling up category-B seats by private educational institutions, restricting collection of fee to the minimum fixed by APHER&MC for convener quota. When the convener is unable to fill all the seats as per the information furnished by respondent Nos.1 and 2 in their counter during last year, question of admitting students under the management quota through convener and collection of fee three times above the fee fixed by APHER&MC does not arise, such restriction is unreasonable.
The test of "manifest arbitrariness" is well explained in two judgments of the Apex Court. In "Khoday Distilleries Ltd. v. State of Karnataka8", the Apex Court held as follows:
"13. It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the Appellants, the Rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here Under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive 7 [1960] 1 SCR 39 8 (1996) 10 SCC 304 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 28 actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power."
(Emphasis supplied) In "Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India9", the Apex Court is of the view that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned Under Article 14 on the ground that it is unreasonable; 'unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary'. Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, 'Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires'. In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.
Also, in "Sharma Transport v. State of A.P.10", the Apex Court held as follows:
"25. ... The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily"
means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone."
9 (1985) 1 SCC 641 10 (2002) 2 SCC 188 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 29 (Emphasis supplied) What is manifestly arbitrary is obviously unreasonable and being contrary to the Rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in "State of A.P. v. McDowell and Co.11", where it is held that a constitutional challenge can succeed on the ground that a law is "disproportionate, excessive or unreasonable", yet such challenge would fail on the very ground of the law being "unreasonable, unnecessary or unwarranted". The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.
That legislation can be struck down on the ground of manifest arbitrariness is no longer open to any doubt, as has been held by this Court in "Shayara Bano v. Union of India12", , as follows:
"101.... Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well Under Article 14."
(Emphasis supplied) 11 (1996) 3 SCC 709 12 (2017) 9 SCC 1 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 30 In view of the principles laid down in the above judgments, if any subordinate legislation is manifestly arbitrary or unreasonable, the Court can exercise power of judicial review under Article 226 of the Constitution of India and struck down such legislation.
One of the major contentions of the learned counsel for the petitioner in W.P.No.23662 of 2021 is that absolutely there is no rationale behind the issue of Government Order impugned in the writ petition dividing seats into 70:30 for both convener and management quota and filling up of management quota by the convener himself restraining the management to notify the seats earmarked for management quota. He relied on the judgments of the Supreme Court in Ram Krishna Dalmia v. Justice S.R. Tendolkar and D.S.Nakara v. Union of India (referred supra) On the strength of the principles laid down in the two judgments, he requested to quash the clause III of the impugned G.O. referred above.
Undoubtedly, there must be a rationale behind the policy decision taken by the State while enacting the subordinate legislation. In the instant case, the State, based on the recommendations of APHER&MC formulated the present subordinate legislation to have control over the entire educational system including the unaided private educational institutions and deprive them from managing the educational institutions so as to meet the standards fixed by the State for accreditation, but on account of policy adopted by the State and issue of Rules 2021 under the impugned Government Order, State totally taken away the entire control over the admissions in the institutions. Even in the counter, the respondents themselves gave table showing the percentage of admissions in Degree Colleges during CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 31 last year. Unfortunately, even the seats equivalent to Convener quota were not filled up during the last academic year in major institutions. In such case, question of filling up all management quota seats would not arise. Further, it is difficult for the educational institutions to improve their infrastructural and instructional facilities to get accreditation as per G.O.Rt.No.13 HE (UE) Department dated 02.02.2021l.
In the facts of "Ram Krishna Dalmia v. Justice S.R. Tendolkar" (referred supra), the principal ground urged in support of the contention as to the invalidity of the Act and/or the notification is founded on Article 14 of the Constitution of India. The Apex Court referred to the judgment in "Budhan Choudhry v. The State of Bihar13", wherein a Constitution Bench of seven Judges of the Apex Court explained the true meaning and scope of Article 14 as follows :
"The provisions of Article 14 of the Constitution have come up for discussion before this court in a number of cases, namely, "Chiranjit Lal Choudhuri v. The Union of India14", "The State of Bombay v. F. N. Balsara15", "The State of West Bengal v. Anwar Ali Sarkar 16", "Kathi Raning Rawat v. The State of Saurashtra17".
At the end, the Court concluded that the 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 the differentia must have a 13 1955CriLJ374 14 [1950]1SCR869 15 [1951]2SCR682 16 1952CriLJ510 17 1952CriLJ805 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 32 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 the Apex Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
In the said judgment, the Apex Court laid down certain guidelines, they are as follows:
(i) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the court. In determining the validity or otherwise of such a statute the court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the court finds that the classification satisfies the tests, the court will uphold the validity of the law, as it did in "Chiranjitlal Chowdhri v. The Union of India" (referred supra), "The State of Bombay v. F. N. Balsara"
(referred supra), "The State of West Bengal v. Anwar Ali Sarkar" (referred supra) "Kathi Raning Rawat v. The State of Saurashtra" (referred supra)
(ii) A statute may direct its provisions against one individual person or thing or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instance of naked discrimination, as it did in "Ameerunnissa Begum v. Mahboob Begum 18" and "Ramprasad Narain Sahi v. The State of Bihar19".18
[1953]4SCR404 19 [1953]4SCR1129 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 33
(iii) A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the court will strike down both the law as well as the executive action taken under such law, as it did in "State of West Bengal v. Anwar Ali Sarkar 20", "Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh 21"
(iv) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification, the court will uphold the law as constitutional, as it did in "Kathi Raning Rawat v. The State of Saurashtra"(referred supra).
(v) A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle, it has been held by this Court, e.g., in "Kathi Raning Rawat v. The State of Saurashtra" (referred supra), that in such a case the executive action but not the statute should be condemned as unconstitutional."
Thus, from the guidelines laid down by the Apex Court, the law is clear that unless a Statute or subordinate legislation passes the 20 1952CriLJ510 21 [1954]1SCR803 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 34 tests laid down by the Apex Court in the judgments (referred supra) it cannot be validated.
In "D.S.Nakara v. Union of India" (referred supra) the Apex Court is of the opinion that the though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that that differentia must have a rational relation to the objects sought to be achieved by the statute in question. The classification may be founded on differential basis according to objects sought to be achieved but what is implicit in it is that there ought to be a nexus i.e., causal connection between the basis of classification and object of the statute under consideration. It is equally well settled by the decisions of the Apex Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. The same is reiterated in "Re. Special Courts Bill22" restated the settled propositions which emerged from the judgments of this Court undoubtedly insofar as they were relevant to the decision on the points arising for consideration in that matter.
Finally, the Hon‟ble Apex Court succinctly held that the classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must 22 [1979]2SCR476 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 35 have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act.
The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in "Maneka Gandhi v. Union of India23" in the earliest stages of evolution of the Constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in "EP. Royappa v. State of Tamil Nadu24", it was held that the basic principle which informs both Articles 14 and 16 is equality and inhibition against discrimination. The Apex Court further observed as under:
"From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. 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. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
(Emphasis supplied) What is arbitrariness is not defined, but in the perspective of Article 14, the Constitution Bench in "Ajay Hasia v. Khalid Mujib 23 [1978]2SCR621 24 (1974)ILLJ172SC CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 36 Sehravardi25" held that it must, therefore, now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is un equal both according to political logic and constitutional law and is, therefore, violative of Article 14. After a review of large number of decisions bearing on the subject, in "Air India v. Nargesh Meerza26" the Court formulated propositions emerging from analysis and examination of earlier decisions. One such proposition held well established is that Article 14 is certainly attracted where equals are treated differently without any reasonable basis. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
In "D.S.Nakara v. Union of India" (referred supra), having considered the principles laid down in the above judgments, the Supreme Court concluded that dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of 'being in service on the specified date and retiring subsequent to that date' in impugned 25 (1981)ILLJ103SC 26 (1981)IILLJ314SC CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 37 memoranda, violates Article 14 and is unconstitutional and is struck down.
A reading of the principles laid down in the above judgment, it is clear that there must be a rationale or nexus between the object and rules in the subordinate legislation. In "State of Tamil Nadu v. P. Krishnamoorthy" (referred supra), the Apex Court laid down the parameters of judicial review of subordinate legislation (referred supra).
In the instant case, the aim/object of the subordinate legislation impugned in the writ petition is to give preference to the merit students so as to improve the educational standards in the State both in private aided and unaided educational institutions. The private educational institutions are established by private individuals under the Andhra Pradesh Education Act, 1982. The Act No.5 of 1983 is enacted to prevent unlawful gain by the private educational institutions. But, initially, Capitation Fee was banned in Engineering and Medical colleges etc. Later on account of establishment of educational institutions in under-graduate level, the State brought the present legislation impugned in the writ petition to prevent the malpractices in admissions by the private managements and to give preference to merit so as to increase the standards of educational institutions. The object may be laudable, and dividing the seats in the ratio of 70:30 under convener and management quota may be to some extent justifiable.
One of the major contentions of the petitioners is that the Rules, 2021 are contrary to the object mentioned in the impugned G.O.Ms.No.55 dated 07.10.2021. According to paragraph No.7 of the CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 38 impugned Government Order, the decision of introducing 30% of seats under Category-B will not affect the poor students belonging to rural Andhra Pradesh. However, in order to provide an impetus to private unaided degree colleges desirous of providing quality education and thereby meet the standards of accreditation, the leverage provided in terms of collection of up to 3 times the fee fixed by APHER&MC for admissions made under Management quota will facilitate enhancing the standard of education provided in these institutions through development of infrastructure and other amenities. But the Rules, 2021 totally depriving the educational institutions to fill the management quota seats by issuing notification for admission into category-B seats. Since the Convener has taken up the entire process of admission even under Category-A and Category- B seats, as such the Rules are contrary to the object.
When 30% seats are earmarked for management quota under category-B, taking over admissions by the Convener is not based on any rationale. More particularly filling up all the admissions in undergraduate courses by the convener himself is arbitrary for the reason that when Convener taking up admissions in both Convener quota and management quota, it is nothing but converting the management quota into Convener quota. When the Convener is not able to fill all the seats under Convener quota, the question of filling seats by the Management does not arise and it is nothing but futile exercise being undertaken by the management to fill left over seats under the Management quota.
When once 30% seats are earmarked, issue of notification by the Convener himself is also not based on any reason.
CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 39 On the other hand, in paragraph No.5 of the counter respondent No.1 admitted that it is the right of the management of the colleges to fill up Category-B seats on their own, transparently without giving a go-bye to merit. (Vide: "P.A. Inamdar v. State of Maharashtra" (referred supra). The admissions based on principle laid down in "P.A. Inamdar v. State of Maharashtra" (referred supra) filling up Category-B seats by Convener is nothing but taking away right of management. Hence, the contention of the petitioners is supported by the plea of respondent No.1 in paragraph No.5 of the counter, based on "P.A. Inamdar v. State of Maharashtra" (referred supra).
The major contention of the learned Government Pleader for Higher Education is that the issue in the present writ petitions is covered by the co-ordinate Bench of the High Court of Andhra Pradesh in W.P.No.27777 of 2012.
The issue in the said writ petition is classification of seats in private medical, dental and engineering colleges in both Convener quota and Management quota reducing NRI quota from 15 to 5%, but considering the "P.A. Inamdar v. State of Maharashtra" (referred supra) the co-ordinate Bench of the High Court of Andhra Pradesh in W.P.No.27777 of 2012 concluded that even under the amended Rule, the autonomy of the petitioner institutions to make admissions into Category-B seats remained untouched, however the selection process is made transparent to enable the competent authority to oversee the selection process at every stage right from the stage of notifying the seats till the admissions are made.
CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 40 Finally, it is concluded that in view of the decision in "P.A. Inamdar v. State of Maharashtra" (referred supra), discretion is left with the Management not with the Government to reduce quota, issued the following directions for effective implementation of the amended Rule 6 (ii).
(i) Apart from making the applications online through the common web portal, the candidates shall be given an option to submit their applications in person at the college of their choice, however one select list shall be prepared and be uploaded in the web portal for verification and validation in terms of the Rule.
(ii) The management of the institution shall be given an option to call upon the selected candidates to appear in person for interview to substantiate their credibility and financial capacity to the satisfaction of the management.
(iii) In the event of the management finding that any of the selected candidates is not suitable for admission, the management shall be at liberty to reject the candidature of such candidates and the reasons should be communicated to the competent authority.
(iv) So far as the option given to the candidates to opt for any number of colleges/courses is concerned, the A.P. State Council for Higher Education shall have a consultation with the petitioner institutions and work out the modalities so as to prevent multiple blockage of seats and to ensure that the selection process is completed within a timeframe.
In the facts of the above judgment, except Rule 6 (ii), other clauses were not challenged, only classification of Convener and Management quota into 70:30 while reducing NRI quota was in issue. But the Division Bench accepted the convener quota and management quota at 70:30% as there is a rationale, but modified the NRI quota. Based on the law laid down in "P.A. Inamdar v. State of Maharashtra" (referred supra), the Court observed that the right is vested with the institution to fill Category-B seats. Even in the counter also, respondents admitted that as per the principle laid CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 41 down in "P.A. Inamdar v. State of Maharashtra" (referred supra) it is the right of the educational institutions to fill Category-B seats.
As discussed in earlier paragraphs about unreasonableness, it is clear that the rules were framed only to deprive the private educational institutions to manage their institutions, while insisting to improve their infrastructural and instructional facilities to get accreditation as per G.O.Rt.No.13 HE (UE) Department dated 02.02.2021l. Indirectly, it amounts to disabling them to run educational institutions by imposing such conditions fixed by the State.
At the same time, as per clause (iv) (b) (c) of Rule 3 of the Rules 2021, admissions in category - B shall also be made by the Convener through single window system and that the institutions shall not issue any notification and receive applications on their own and such notification shall be issued by the Convener himself, these clauses are unreasonable, arbitrary and not based on any rationale.
The fact situation, as discussed above, clearly indicate that the major part of the educational institutions admitting students in undergraduate courses are unable to admit 70% of the students, which is less than 70% convener quota. Even if, any notification is issued for filling up management quota seats, it is difficult for the colleges to get any students admitted under management quota. In such case, issue of notification by the convener himself for filling up category-B seats is not based on any rationale or reason, thereby such act of the respondents can be described as manifestly arbitrary. Therefore, Rule 3 (iv) (b) (c) and 3 (v) of the Rules 2021 are hereby quashed declaring the rules as unreasonable, manifestly arbitrary CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 42 and not based on any rationale. Consequently, the said Rule 3 (iv) (b)
(c) and 3 (v) of the Rules 2021 are liable to be set aside. Accordingly, the point is answered in favour of the petitioners and against the respondents.
P O I N T No.2:
One of the major contentions raised by Sri P.Veera Reddy, learned senior counsel for the petitioner in W.P. (PIL) No.214 of 2021, is that depriving students to enjoy the government benefits such as Jagananna Vidya Deevena (RTF) and Jagananna Vasathi Deevena (MTF) is arbitrary, violative of Article 14 of the Constitution of India.
No doubt, the students belonging to Scheduled Castes and Scheduled Tribes admitted in Category-B seats have to pay three times fee fixed by APHER&MC as per Rule 3 (iv) (e) of the Rules 2021. When they are able to pay such higher fee, depriving them to enjoy the benefits of Jagananna Vidya Deevena (RTF) and Jagananna Vasathi Deevena (MTF) is arbitrary or not is to be examined by this Court.
For management quota, the rule of reservation is not applicable as contended by the respondents in the counter and anyone can get admission under 30% quota based on their merit. Sometimes, eligible candidates belonging to Scheduled Castes and Scheduled Tribes may get admission based on their merit in category-B management quota, still they are being deprived of enjoying benefits of scheme. The major contention of the learned senior counsel is that local conditions prevailing in the area were not taken into consideration while fixing the quota for both convener and management at the rate of 70%:30% CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 43 as held in "T.M.A.Pai Foundation v. State of Karnataka" (referred supra). Most of the colleges are situated in rural areas and no study was undertaken by the State while passing the Rules 2021, which are impugned in the writ petition.
The petitioner in W.P. (PIL) No.214 of 2021 challenged Rule 3
(iv) (h) of the Rules, 2021 as it deprives the Scheduled Castes and Scheduled Tribes students admitted in Category-B seats to enjoy the benefits of social welfare schemes of the State viz. Jagananna Vidya Deevena (RTF), Jagananna Vasathi Deevena (MTF) etc. Such clause denuding the Scheduled Castes and Scheduled Tribes eligible students to enjoy the social welfare schemes is not based on any reasonable classification between the eligible students admitted in Category-A and Category -B, and contended that the Rule 3 (iv) (h) is illegal.
As discussed in point No.1, subordinate legislation can be set aside if it is irrational or manifestly arbitrary. Clause (h) of Rule 3 (iv) of the Rules, 2021 discriminates the eligible students admitted in Category-A and Category-B and depriving the students, who were admitted in Category-B to enjoy the benefits of social welfare schemes of the State. This is not based on any rationale and such deprivation is nothing but manifestly arbitrary act. Hence, the said Clause (h) of Rule 3 (iv) of the Rules, 2021 is liable to be set aside.
Learned Government Pleader for Higher Education contended that the issue is covered by the co-ordinating bench of the High Court of Andhra Pradesh at Hyderabad in W.P.No.27777 of 2012.
CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021 44 A close perusal of entire judgment in W.P.No.27777 of 2012, no such issue was raised before the co-ordinate bench of the High Court of Andhra Pradesh at Hyderabad. Therefore, the contention of the learned Government Pleader for Higher Education is hereby rejected while holding that discrimination of eligible Scheduled Castes and Scheduled Tribes students admitted in category-B seats is irrational and manifestly arbitrary and the same is deserves to be set aside.
In view of foregoing discussion, the writ petitions are deserve to be allowed in part. Accordingly, the point is answered in favour of the petitioners and against the respondents.
In the result, writ petition (PIL) No.214 of 2021 and writ petition No.23662 of 2021 are allowed in part declaring Rule 3 (iv) (b)
(c) (h) and 3 (v) of the Andhra Pradesh Private Degree Colleges (Admission of Students into Category - B Seats) Rules 2021 notified in G.O.Ms.No.55 Higher Education (CE.A2) Department dated 07.10.2021 as illegal, arbitrary and unreasonable, consequently set aside the same. The managements of private educational institutions shall issue notification to fill category - B seats under 30% quota in their institutions and admit the students in accordance with the procedure subject to payment of fee fixed by APHER&MC. No costs.
The miscellaneous petitions pending, if any, shall also stand closed.
PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY,J Ksp