Andhra HC (Pre-Telangana)
P. Venkateswara Rao And Others vs Osmania University, Hyderabad And ... on 31 March, 1990
Equivalent citations: AIR1990AP346, AIR 1990 ANDHRA PRADESH 346
ORDER Amareswari, J.
1. This group of Writ Petitions relate to establishment, permission, admission of students and cancellation of some admissions to the Padala Rama Reddy Law College, Hyderabad.
2. Padala Rama Reddy Education Society is a Society registered under the Public Societies Registration Act, hereinafter referred to as the Society. One of the aims of the Society was to set up educational institutions. The Society wanted to establish a Law College in Hyderabad.
3. In September, 1988 the Society sent a representation to the Government requesting for permission to establish a Law College under the name and style of "Padala Rama Reddy Law College". This representation was forwarded by the Government to the Osmania University requesting them to send a feasibility report. A copy of the representation was also sent to the Chairman, Andhra Pradesh State Council of Higher Education. The Society sent a copy of the representation to the Bar Council of India.
4. The University appointed a Commission to inspect the premises and submit a report. The Commission visited the proposed Law College on 24-9-1988 and sent a report that the Society may be permitted to run the College with two sessions, a day session and a night session with two sections of 80 candidates each subject to their obtaining permission from the Government, approval from the Bar Council of India and also subject to Rules of affiliation. The Bar Council of India sent their approval on 30-11-1988 to start the College with the morning and evening sessions as a full time course. The State Council of Higher Education at its meeting held on 31-10-1988 resolved to recommend State Government to accord permission subject to the fulfilment of conditions mentioned therein and this resolution was communicated to the Government by their letter dated 7-12-1988.
5. At that stage, the Society finalised the list of candidates for admission and intimated the University that they would proceed with the admissions and commence classes. The University sent a reply on 22-12-1988 asking the Society not to go ahead with the admissions until they obtain permission from the Government and if they do so, it will be at their risk and the University would not conduct classes or confer degrees on such students. In other words, they said that they would not grant affiliation. Immediately thereafter, the Society filed this Writ Petition No. 150 of 1989 seeking a Mandamus that the Society is entitled to start and run the College from 1988-89 onwards. They also sought for interim directions to the University to permit them to run the College for the academic year 1988-89 onwards as an affiliated College of the University. This Court by its order dated 11-1-1989 granted interim directions as prayed for. As a result, the Society completed admissions, run the Classes and also had the advantage of examinations being conducted by the University for the students who were admitted during the year 1988-89.
6. Then 'came the year 1989-90. The College became more bold. It had admitted 518 students in the two sessions as against the permitted strength of 320 and without any reference to their ranking in the common entrance test familiarly called "LAWCET", started the Classes. On coming to know of this, the University by its letter dated 15-11-1989 directed the College to cancel the admission of students in excess of the sanctioned strength of 320. It was followed by another letter dated 24-11-1989 and the College was informed that the affiliation would be revoked if they do not adhere to the strength prescribed by them. Thereupon, the College cancelled the admission made in excess of 320 in both day and evening sessions. The students whose admissions were cancelled filed Writ Petitions Nos. 16598, 16678, 16797, 17050, 17399 and 18289 of 1989 on 27-11-1989 seeking for a declaration that the cancellation was illegal and that they may be permitted to prosecute their studies. An ad interim direction was granted by this Court, but it was later vacated by order dated-19 observing that the Convener may allot the students as per the ranking obtained by them in the LAWCET examination. On 1-12-1989 the University directed cancellation of admission of 320 students on the ground that they were not allotted by the Convener, LAWCET. Challenging this action, the College filed Writ Petition No. 17026 of 1989 on 6-12-1989 and obtained interim directions to permit the College to retain the 320 students.
7. After this Court vacated the interim stay, the Convener, LAWCET allotted candidates as per the ranking obtained by them in the LAWCET examination. On receiving the intimation, 5 of the allotted students approached the College for admission and they were refused admission on the ground that there were no vacancies as all the 320 seats were filled up. These students filed Writ Petitions Nos. 2944, 2687, 2216, 2999 and 2132 of 1990 seeking for a Mandamus directing the College to admit them in the First year course for the year 1989-90.
8. All these Writ Petitions came up for hearing before a single Judge of this Court. At that stage, in the Writ Petitions filed by the students whose admissions were cancelled, an additional affidavit was filed raising fresh grounds namely, that conducting the LAWCET examination itself is illegal as the State has no competency to pass any law relating to legal profession as it is a subject within the exclusive jurisdiction of the Parliament and in any event, the law passed by the State Government being repugnant to the law passed by the Parliament is void by virtue of Art. 254 of the Constitution of India. At that stage, the learned single Judge referred the matter to a Division Bench as the competency of the State Legislature to enact a legislation relating to equal profesion is involved.
9. We will first take up Writ Petition No. 150 of 1989 filed by the Society for a declaration that the College had the necessary permission to establish and run the College.
10. The main submission of Mr. B, Subhashan Reddy, the learned Counsel for the petitioner is that after the coming into force of the State Council of Higher Education Act (Act 16 of 1988) the authority to accord permission in respect of higher education institutions is the State Council of Higher Education and the Government is nowhere in the picture. The powers of the Government under Sees. 20 and 21 of the Education Act must be confined to other educational institutions. The Council must be deemed to have accorded permission by virtue of its letter dated 7-12-1988 read with the communication of the Bar Council of India dated 31-10-1988 and the letter of the University dated 22-12-1988.
11. The Andhra Pradesh Education Act, 1982 was passed by the Legislature of Andhra Pradesh and it received the assent of the President on 27-2-82. Sub-section (3) of S. 1 says that it applies to all educational institutions in the State except institutions of scientific or technical education financed by the Central Government, institutions established or affiliated to the Andhra Pradesh Agricultural University and the Jawaharlal Nehru Technological University, institutions relating the establishment of Universities including the University of Hyderabad and educational institutions imparting intermediate education insofar as the matters pertaining to them are dealt with in the Andhra Pradesh Intermediate Education Act, 1971. "Educational Institution" is defined under Sec. 2(18) as a recognised School (Colleges including Medical College) the management of which carries on the activity of imparting education therein, but does not include a tutorial institution. Section 2(35) defines "provide institution" as an institution imparting education or training, established and administered or maintained by any body of persons 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 religous instruction, but not any other instruction. Section 20 deals with permission for establishment of educational institutions. Sub-section (2) of Section 20 contemplates an application being filed for permision and sub-section (3) prescribes the criteria for granting permission. Sub-section (4) of Section 20 mandates that no educational institution shall be established except in accordance with the provisions of the Act and a person who contravenes the provision and the person who runs the institution after the permission is cancelled shall be punished with simple imprisonment which shall not be less than six months.
12. On a combined reading of these provisions, it is manifest that no educational institution can be established except with the permission of the Government under the Andhra Pradesh Education Act of 1982 as amended by Andhra Pradesh Education Amendment Act of 1987. But what is contended on behalf of the petitioner is that the State Legislature has passed another Act called the Andhra Pradesh State Council of Higher Education Act, 1988 and under the said Act, the power to accord permission for Higher Education Institution is vested in the State Council of Higher Education and the Education Act has no application in regard to higher education.
13. The Andhra Pradesh State Council of Higher Education Act was enacted in the year 1988. Under this Act a State Council is constituted with a Chairman, a Vice-chairman and 4 Ex officio members and certain other Members. Under Section 11(1) of the Act, the Council has to co-ordinate and determine the standards in institutions of higher education in accordance with the guidelines issued by the University grants commission from time to time. Section 11(2) which is relevant for our purpose says that the functions of the Council shall include :-- (i) to prepare consolidated programmes in the sphere of Higher Education in accordance with the guidelines that may be issued by the University Grants Commission and to assist in their implementation, (ii) to assist the University Grants Commission in respect of determination and maintenance of standards and suggest remedial action wherever necessary, (iii) to evolve perspective plans for development of Higher Education, (iv) to forward the Developmental Programmes of Universities and Colleges in the State to the University Grants Commission along with its comments and recommendations, (v) to monitor the progress of implementation of such developmental programmes, (vi) to promote co-operation and co-ordination of the educational institutions among themselves and explore the scope for inter action with industry and other related establishments, (vii) to formulate the principles as per the guidelines of the Government and to decide upon, approve and sanction new educational institutions by according permission keeping in view the various norms and requirements to be fulfilled, and (viii) to suggest ways and means of meeting additional resources for higher education in the State.
14. It is seen from the aforementioned provisions that the functions of the Council under this Act are advisory in nature in matters relating to higher education. The preamble of the Act reads that this is an Act "to provide for the Constitution of a State Council to advise the Government in matters relating to Higher Education in the State and to oversee its development with Perspective Planning and for matters connected therewith and incidental thereto." This Act is passed pursuant to a recommendation of the National Educational Policy that the co-ordination of Higher Education shall be done through Councils of Higher Education and these Councils will develop co-ordination methods to keep a watch on the standards and the University grants Commission constituted a Committee to make recommendations and the Committee recommended that an effective measure for co-ordination of higher education with those of University Grants Commission and the State Government has agreed to constitute a State Council of Higher Education as recommended in the National Educational Policy of the Government of India and by the Committee constituted by the University Grants Commission. The preamble of the Act makes it clear that the functions of the Council is to advise and recommend the Government any measures as it thinks fit in regard to Higher Education.
15. A reading of Section 11 would also support this construction. For instance, Section 11(2)(I)(i) speaks of preparation of consolidated programmes in accordance with the guidelines issued by he University Grants Commission. Clause (ii) speaks of assisting the University Grants Commission in regard to maintenance of standards. Clause (iii) is to evolve plans for development. Clause (iv) to forward the developmental programmes to Universities. Clause (v) to monitor the progress. Clause (vi) to promote co-operation and co-ordination and Clause (viii) is to suggest ways and means to meet additional resources for Higher Education in the State. Emphasis is laid on Clause (vii) which says that the Council has to formulate the principles as per the guidelines of the Government and decide upon, approve and sanction new educational institutions by according permission. This Clause (vii) is unhappily worded. In the context of other sub-clauses, it only means that it has to formulate the principles as per the guidelines of the Government for the purpose of according permission for new educational institutions. But the authority to grant permissions as per the recommendations made by Higher Council is the State Government under Section 20.
16. In the counter it is stated that no such principles are formualted by the Government and the guidelines are under preparation. In the proceedings dated 7-12-1988 it is stated that under Section 11(2)(I)(vii) since no guidelines are prepared the Council requested the Government to accord permission subject to fulfilment of the conditions after conidering the report of the Osmania University and the Bar Council of India. We are therefore unable to hold that after the corning into force of Act 16 of 1988 the State Government ceases to have any power with regard to institutions of Higher Education and that the entire matter is left to the State Council of Higher Education.
17. It is next to be seen whether any such permission was granted even by the State Council of Higher Education. The learned Counsel relied upon the letter dated 7-12-1988 as amounting to permission. In the proceedings dated 7-12-1988 the State Council of Higher Education requested the Government to accord permission to the Society to start a Law College subject to fulfilment of 15 conditions, which are as follows :--
(1) The Society shall deposit Rs. 5 lakhs in the joint Account of the Management and Government, (2) 10 acres of land and building with plinth area of 8,000 square feet is to be provided. The land should be registered in favour of the College.
(3) Suitable building should be provided as per the specifications given by the University.
(4) If the building is under construction, a building under lease, suitable for accommodating the College should be provided for a period of 5 years and that the building should be constructed from their own funds within five years.
(5) The private Management should run the College at their own expenses and no grant will be claimed from the Government and for this purpose they should execute an affidavit after obtaining the prescribed form from the Director of Higher Education before starting the College.
(6) An amount of Rs.50,000/- shall be invested for purchase of books and efforts should be made to improve the Library.
(7) The Management should deposit a sum of Rs. 1 lakh and raise the amount to Rs. 2 lakhs in a phased manner within 3 years.
(8) The recruitment of teaching staff should be made by the College Service Commission.
(9) The Management should collect tution fee at the rates prescribed by the University.
(10) The Management should obtain affiliation from the University concerned.
(11) The Management should not divert any amounts to the Law College from the existing Educational Institutions.
(12)The Management should follow the rules and Regulations framed by the Government from time to time.
(13) The Management should not collect any donations, capitation fee from the students for any purpose.
(14) Admissions to the Law Courses shall be made on the basis of merit in the entrance test conducted by the Andhra Pradesh State Council of Higher Education or by the concerned University.
(15) The Management should fulfil all the conditions stipulated by the Andhra Pradesh State Council of Higher Education by the Inspection Commission of the University.
18. This letter does not in any sense amount to permission being granted to establish a College. No material is placed before us to show that the petitioner had filed a compliance report pursuant to this letter either before the State Council of Higher Education or before the Government. It is only after fulfilment of these conditions that permission would be accorded. This letter does not amount to permission being granted by any stretch of imagination. Even the Inspection Commission of the University recommended approval being given by the University provided the Government grants permission to establish the College. As it is, there is no permission either from the University or by the State Council of Higher Education. It was only at the stage of recommendation subject to fulfilment of certain conditions. Hence the submission that the College has necessary permission is wholly unsustainable. The Society should have filed a compliance report pursuant to the letter dated 7-12-1988 fulfilling all the conditions stipulated in that letter. Instead, the petitioner moved this Court for a declaration that he is entitled to run the College. Neither the letter of the University nor the proceedings of the State Council of Higher Education amount to grant of any permission to establish the College. The petitioner is therefore not entitled to a declaration that the Society had the necessary permission to establish the College and run the same.
19. Next we come to the admission of students for the year 1989-90. The University by its letter dated 13-2-1989 informed the College that they can admit a total number of 320 students with 2 sections of 80 candidates each in the day session and in the evening session. The College was also directed to admit students strictly in accordance with the ranking obtained in the LAWCET examination. But the College admitted 198 students in excess of the ceiling limit, Having come to know of this, the University directed cancellation of the admissions over and above the ceiling limit, by its letter dated 24-11-1989 pursuant to which the admissions were cancelled. The students, whose admissions were cancelled, thereupon filed Writ Petitions Nos. 16598, 16678, 16797, 17050, 17399, 18289 of 1989 on 27-11-1989 challenging the cancellation of admissions and obtained interim directions which were later vacated.
20. The main submission advanced on behalf of the petitioners is that the Secretary, Bar Council of India by letter dated 12-10-1989 permitted the College to admit 700 students and it is on the strength of this communication, the College admitted about 500 students which is below the strength sanctioned by the Bar Council of India and hence it cannot be said that the admissions were contrary to the stipulation regarding the strength. The University has no authority to direct cancellation of admissions on the threat of disaffiliating the College.
21. It is not in dispute that the total sanctioned strength was only 320 including the day and evening sessions. This strength was fixed by the University as evident from their letter dated 13-2-1989 which is as follows :--
"The College will, however, be eligible to admit students to regular batches from the academic year 1989-90 onwards with two sessions i.e., a day session with two sections of 80 candidates each, and an evening session with 2 sections of 80 candidates each."
The Osmania University notified the commencement of the academic year on 5-9-1989. On 30-9-1989 the College wrote a letter to the Bar Council of India for increase of seats. The Bar Council replied on 12-10-1989. It is this letter that is relied upon by the petitioners to say that the strenth was increased. In this letter written by the Secretary, it is stated that as per resolution No. 49 of 1978, the maximum strength of the students shall not exceed 350 in the day session and 350 in the evening session and 80 students in any section of each class, and the students in each section of any class must not exceed 80. We fail to understand how this amounts to permission to admit students up to 700. The Secretary is only stating the rule position namely, that the maximum strength is 700 and the minimum strength in each Section is 80 and that the College may admit students accordingly. But this is subject to the actual strength being fixed by the University. What is stated is only the maximum for the College as well as for each section. Under no circumstances, this can be treated as permission to increase the strength up to 700 particularly when each section is entitled to have only 80 students. There was no increase of sections by the College. Even the strength for the previous year 1988-89 was fixed by the University. This fact is very much known to the College as it had addressed a letter to the University on 17-10-1989 to increase the strength. Even during the year 1988-89 the College admitted 22 students over and above the ceiling strength and the University ratified it with a warning that the College should adhere to the prescribed ceiling scrupulously in future. The action of the petitioner in admitting students contrary to the strength fixed by the University is wholly illegal and cannot be sustained on any legal basis. The contention that it is only the Bar Council of India that is the competent authority to increase the seats has only stated to be rejected as even according to their case, it was the University that prescribed the strenth during the last 2 years.
22. Section 2(c) of the Osmania University Act, 1959 defines "College" as a College established and maintained by or affiliated to, or recognised by the University. Section 2(j) defines a "Professional College" as a College established and maintained by the University, or affiliated to the University for providing courses of study leading to the professional degrees of the University, in accordance with the Regulations prescribed. Under Section 4(1)(k) the University has the power to grant affiliation or recognition to Colleges and Institutions and the power to withdraw such affiliation or recognition. Under S.4(1)(1) it has power to inspect affiliated and recognised colleges and institutions and to take mesures to ensure that proper standards of instructions are maintained. Section 5 deals with the power of the University to constitute University Colleges and also grant affiliation. In fact, the Bar Council of India white recommending to the University that necessary permission may be granted for opening the Law College made it clear to run two sessions morning and evening "according to the need determined by the University". Therefore it is for the University to determine the in take of students having regard to the infrastructure and other facilities available. Even for the year 1988-89, 22 candidates in excess of the strength were admitted by the College and when ratification was sought, the University made it clear that the College should adhere to the prescribed ceiling in future. But it seems to have no effect at all. This time they admitted as many as 198 students over and above the ceiling limit. The University was therefore, right in directing cancellation of the students admitted in excess of the permitted strength. The students whose admissions are cancelled are persons, who got a lesser rank than the 320 students retained by the College. The interim stay granted at the time of admission of the writ petition was vacated later. It is pointed out by the learned Counsel that stay was vacated only in some writ petitions and some of the excess candidates are continuing even till today. Whatever may be the position, we are unable to give any relief to the persons whose admissions are cancelled as what was done was only a rectification of the error committed by the College.
23. In Achchey Lal v. Vice-Chancellor, Gorakhpur University, a similar situation arose and it was held that the University was within its power not to permit the students admitted exceeding the prescribed limit not to take up the examinations.
24. This takes us to the case of students, who are admitted within the prescribed strength. It is common case that these admissions were made not on the basis of merit and ranking assigned to them in the common entrance test viz., LAWCET. The Principal received the applications directly and admitted them irrespective of their ranking in the LAWCET examination. In order to regulate the admissions to the Professional Colleges, the State of Andhra Pradesh framed Rules in G.O.Ms. No. 172 called the Andhra Pradesh Institutions of Law (Regulation of Admissions into Courses in Law through Common Entrance Test) Rules, 1989. They came into force on 11-5-1989 from the academic year 1989-90. These Rules are framed in exercise of the power conferred under sub-section (1) of Section 3 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (Act No. 5 of 1983). Section 3(3) says that the total number of candidates to be admitted in each course shall not exceed the strength sanctioned by the concerned competent authorities. Section 5 contemplates a common entrance test to be conducted for the purpose of admissions into the Law College. Section 6 deals with the preparation of merit list. Section 3 of Act 5 of 1983 prescribes that the admissions into professional Colleges shall be made on the basis of ranking obtained in the common entrance test examination. As the students were admitted without reference to the merit in common entrance test, the University directed cancellation of admissions by its letter dated 1-12-1989.
25. Two submissions are made in this context, one legal and the other factual. It is contended that the State has no competence to pass any legislation regarding legal education as it is exclusively within the province of the Parliament and hence the Rules framed under the said Act is illegal. Secondly, even if the State has the competence, the Advocates Act passed by the Parliament deals with the same subject and hence prevails over the latter which is a State Act. The other contention which is factual is that the delay in allotment of the students by the Convener, LAWCET led the Principal to make admissions as the academic year had commenced and any delay would be prejudicial to the interests of students and hence the admissions cannot be said to be illegal.
26. We will first deal with the legal contention. The Advocates Act, 1961 (Act 25 of 1961) was enacted by the Parliament. Entry 25 in the concurrent List of the Constitution of India is as follows :
"Education, including technical education, medical education and universities, subject to the provisions of Entries 63,64,65 and 66 of List I; vocational and technical training of labour."
Entry 26 is as follows :--
"Legal, medical and other professions."
Under Entry 26 the State is competent to legislate in respect of legal, medical and other professions. Under Entry 25 any legislation can be passed by the State Legislature regarding education. "Education" includes Legal Education also. Entries 77 and 78 of List I (Union List) of the Constitution relate to constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court) and the fees taken therein; persons entitled to practice before the Supreme Court. Entry 78 relates to Constitution and organisation (including vacations) of the High Courts except provisions as to Officers and servants of High Courts; persons entitled to practice before the High Courts. Thus Entries 77 and 78 are concerned with the jurisdiction and powers of the Supreme Court and the persons who are entitled to practice, and the organisation of High Courts and the persons entitled to practice before the High Courts. Entries 25 and 26 of the concurrent List are of wider amplitude.
27. The Advocates Act, 1961 is an Act passed under Entries 77 and 78. The Supreme Court considered the scope of these entries in Bar Council, U. P. v. State of U.P., holding as follows (at p. 237 of AIR) :-
"So far as persons entitled to practice before these Courts (Supreme Court and the High Courts) are concerned the power to legislate in regard to them is carved out from the general power relating to the provision in Entry 26 in List III and is made the exclusive field for Parliament. In other words the power to legislate in regard to persons entitled to practice before the Supreme Court and the High Courts is altogether excluded from Entry 26 in List III."
28. Thus it is seen that what is contemplated under Entries 77 and 78 is the power to legislate in respect of the persons entitled to practice before the Supreme Court and the High Court. All other matters relating to legal education is still retained under List HI, Entry 26. Entry 25 specifically deals with Education which in our opinion also includes legal education. The Advocates Act, 1961 was enacted by the Parliament with the object of amending and consolidating the law relating to legal practitioners and for providing the constitution of Bar Councils and All India Bar. Thus it cannot be said that the State has no power to legislate in regard to the legal profession under Entry No. 26. What is carved out from Entry 26 is a limited field relating to the persons who are entitled to practice before the Supreme Court and the High Court.
29. In Sobhana Kumar v. Mysore University, the Mysore High Court proceeded on the basis that the Advocates Act enacted by the Parliament falls under Entry 26 of List III of the VIIth Schedule of the Constitution which reads, legal, medical and other professions. The question with which we are concerned is with regard to Education. Under Entry 25 of List III the State has got ample power to legislate with regard to legal education and hence Act 5 of 1983 and the Rules made thereunder providing for a common law entrance test are perfectly valid.
30. Under Section 7 of the Advocates Act, one of the functions of Bar Council of India is to promote legal education and to lay down the standards of such education in consultation with the Universities in India imparting such education. But this does not mean that the Bar Council of India is vested with the power to grant permission for educational institutions or to regulate the admission of students into Law College. Entries 77 and 78 deal with a limited subject viz., matters relating to the Advocates who are entitled to practise before the Supreme Court and the High Courts, leaving the remaining part of Entry 26 untouched, the State is therefore competent to pass a legislation relating to legal profession under Entry 26. In any event, Entry 26 deals with education which includes legal education and the State has full competence to legislate in respect of legal education. Hence Act No. 5 of 1983 and the Rules framed under the said Act are perfectly valid. Even if the Advocates Act provides for certain norms regarding the legal education, the Andhra Pradesh Education Act of 1982 having received the assent of the President in January, 1982 and published in the Gazette in February, 1982 prevails in the State in case there is any repugnancy between the law made by the Parliament and the law made by the State.
31. The learned Counsel for the petitioners relied upon a judgment of this Court in Writ Petition No. 12159 of 1986 in which it is held that in all matters covered by the provisions of the Advocates Act and the Bar Council of India Rules, the power of the State Government and the University is excluded. We are unable to agree with these observations. The Bar Council Act does not deal with grant of permissions for establishing Law Colleges nor does it deal with the regulations of admissions into Law Colleges. The Andhra Pradesh Education Act of 1982, the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (Act No. 5 of 1983) and the Andhra Pradesh State Council of Higher Education Act, 1988 (Act No. 16 of 1988) are all Acts enacted by the State Governments under Entries 25 and 26 of List III and the State has the Legislative competence to make these laws. Though the Advocates Act relates to Legal Practitioners, in effect and substance, it is an enactment dealing with qualifications, enrolment, right to practice and descipline of the Advocates. The method of admission to the Law Colleges can hardly be regarded as a matter relating to qualifications, enrolment and right to practice by Advocates. These matters fall under Entries 25 and 26 of List III. The question of repugnancy under Article 254 of the Constitution can only arise in matters where the Parliament and State Legislature have legislative competence to pass laws. In other words, the question of repugnancy arises when the legislative power is located in the Concurrent List. In the present case, there is no question of repugnancy in any of the provisions of the State Act regulating admissions to Colleges with any of the Rules made under the Advocates Act. Further, even according to the petitioners, the Advocates Act is passed by the Parliament under Entries 77 and 78 of List I viz., the Union List. Hence no question of repugnancy arises. Regulation of admissions is not touched by the Advocates Act or the Rules framed thereunder. We therefore, hold that the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (Act No. 5 of 1983) and the Rules made under G.O.Ms. No. 172 are valid and enforceable.
32. The next question to be considered is whether the action of the Management is justified in making admissions on their own without reference to merit and before they were allotted by the Convener, LAWCET. The explanation by the College for admitting students in that manner is that there was inordinate delay in the matter of allotment and therefore, the College was constrained to make the admissions on the basis of the applications received.
33. The results of LAWCET were published on 24-8-1989, the Osmania University notified that the academic year would commence on 5-9-1989 and examinations would be held on 23-4-1990. On 6-9-89 the Convener called for applications for admissions and fixed 30-9-1989 as the last date for receipt of applications. In the counter-affidavit filed by the Convener, it is stated that the Principal of the Law College met him in October with regard to admission and that he told them that he would do so in 10 days. Admittedly as the College did not have the necessary permission under the Andhra Pradesh Education Act, the Convener was corresponding with the Government whether students can be allotted to the College. There was also a doubt whether the High Court's interim order to permit the College to make admissions pertain to the year 1989-90 also. Ultimately by 15-11-1989 it was decided to allot the students on the basis of LAWCET examinations. But by that time, the College had already made admissions independently on its own by receiving the applications directly. It may be mentioned in this context that the classes commenced only on 27-11-1989 and even till 14-11-89 the admissions even in the University College of Law had not been completed. In any event, it was not open to the College to make admissions without reference to merit or Rules of reservation. The action of the Management is wholly unjustified. The explanation that because of the delay they do not have sufficient number of teaching classes is hardly convincing. Even if there is any delay, they should have pursued proper remedies by moving this Court to direct the Convener to allot students if there was any delay on that score. The alleged ground of delay can hardly be a justification for admitting students ignoring the Rules of reservation and merit. As it is, the College was functioning without any permission under the Act. It is run under the interim orders of this Court and now the admissions are made not on the basis of merit. The Rule of reservation was not followed. The action of the Management is wholly unjustified besides being highhanded. The University was perfectly right in directing cancellation of admissions thus made and proceed in accordance with the allotment made by the LAWCET Convener.
34. But however, there is one aspect to be considered. The academic year had already come to a close. The examinations are scheduled to be held in the first week of May, 1990. 320 students who have been admitted have undergone their full course after paying the necessary fees. What should be done in these circumstances? We think that for this year 1989-90, the 320 students whose admissions are not cancelled may be permitted to appear for the examination and prosecute their studies. Nothing better can be done at present. Any other order would result in starting the academic year at the end of the year. As it is there is no regularity in most of the Colleges at present. The reasons are manifold which need not be mentioned. In these circumstances, we are constrained to permit the students to continue their studies, but with regret we must say. But the same cannot be said of the students who were admitted in excess, of the strength. The stay having been vacated in regard to most of them, they do not have the required attendance and we are unable to extend the indulgence in respect of those students. None of these students whose admissions are cancelled had obtained a rank higher than the other 320 students now retained by the College. We therefore, hold that though the admission of these 320 students is not in accordance with the Rules since they have Undergone the full course for the academic year 1989-90 and examinations are scheduled to be held within a month, we direct the University to conduct the necessary examination as they have done in the case of the students admitted for the year 1988-89.
35. Writ Petitions Nos. 2944, 2687, 2216, 2999 and 2132 of 1990 are filed by the candidates, who appeared for the common entrance test examination and secured a merit rank. They were allotted to the petitioner-Law College by the Convener only after the High Court vacated the stay granted in W.V.M.P. Nos. 2304, 2294 and 2295 of 1989 on 29-12-1989 observing that it is open to the Convener to allot the students to the petitioner-College. By this time, the College has filled up all the seats and Writ Petitions were pending in this Court in which stay was granted. The petitioners were informed by the College that the seats were filled up as early as October, 1989 and the question of admitting fresh students at that stage does not arise. The petitioners challenge this action on the ground that the admissions made by the College are illegal and their admissions cannot be detrimental to the interests of the merit candidates. There is considerable force in this submission. But unfortunately, much water has flown since the publication of results of the LAWCET examinations. The classes have started and the course is now completed. The examinations are scheduled to be held in April or May, 1990. If we direct admission of the petitioners now, they will not have the requisite attendance nor would there be the required number of teaching classes. The petitioners in these five writ petitions are the candidates intending to join in the evening session. They are in service at present. There is no question of any loss of academic year. In these circumstances, we think the admission of these students at this stage at the fag-end of the year just a month before the examinations would not be fruitful. Out of the 320 students who are now allotted by the Convener, 160 for the day session and 160 for the evening session, only five candidates of evening session have come forward with these writ petitions. The regular candidates for the day session might have found berths elsewhere and they must be prosecuting their studies. Out of the evening session of 160, who are all in service, only five are seeking admission and it is not possible to direct special classes and holding special examinations for them. In the circumstances, we are unable to give any relief at this stage. Hence writ petitions are dismissed with regret.
36. The position that emerges is as follows :--
(1) The Padala Rama Reddy College which is a Private Educational Institution cannot run the College from 1990-91 onwards by making fresh admissions till they obtain the necessary permission from the State Government.
(2) It is open to the College to submit a representation complying with all the conditions prescribed for permission or recognition and if such a representation is made, the State Government shall consider the same and pass appropriate orders.
(3) The 320 students admitted by the College are permitted to appear for the examinations to be conducted by the University as per its schedule and continue in the petitioner-College till they complete their course depending upon their results in the examination.
(4) The cancellation of admissions of 198 students over and above the ceiling strength is valid and therefore stands.
(5) The five candidates who are "now seeking admission at the fag-end of the year, pursuant to the allotment by the Convener, LAWCET cannot be granted any relief at this stage.
37. In the result, Writ Petition No. 150 of 1989 is dismissed. Writ Petition No. 17026 of 1989 is allowed in part. Writ Petitions Nos. 16598, 16678, 16797, 17050, 17399, 18289 and 16926 of 1989 are dismissed. Writ Petitions Nos. 2944, 2687, 2216, 2999 and 2132 of 1990 are dismissed. No costs. Advocates fee Rs. 100/- in each.
38. Order accordingly.