Andhra HC (Pre-Telangana)
The Government Of Andhra Pradesh, Rep. ... vs St. Anthony'S Educational Society, ... on 23 April, 1991
Equivalent citations: 1991(2)ALT240
JUDGMENT Jagannadha Rao, J.
1. This writ appeal is preferred against the judgment of the learned singe Judge in W.P. No. 12558/90 dated 27.11.1990. The learned single Judge allowed the writ petition filed by the 1st respondent herein viz., St. Anthony's Educational Society, Narasaraopel. The appellants in this appeal are the Government and the Director of School Education. The relief claimed in the writ petition was for the issue of a writ of Mandamus declaring the order of the Government in G.O. Rt. No. 636 Education (EE-2) Department dated 17.4.1990 as arbitrary and illegal and for a consequential direction to the appellant to grant permission to the writ petitioner society to start a College of Education at Narasaraopet for the academic year 1990-91.
2. The following facts have to be stated : Initially the writ petitioner filed an application on 24.9.1988 seeking permission to start a College of Education for the academic year 1988-89, before the Chief Minister, Government of Andhra Pradesh. The writ petitioner claims to be a minority institution also. Thereupon the Joint Secretary, Education Department addressed a letter dated 28.9.1988 to the Registrar, Nagarjuna University requesting the latter to submit a feasibility report. The Vice-Chancellor of the said university appointed an inspection committee. At that stage the petitioner-society purchased land of an extent of ac. 10-20 cents on 2.10.1988. The Inspection Committee appointed by the University submitted a report dated 4.11.1988 stating that it was feasible to start a College of Education at Narasaraopet. They gave various reasons in the said report. It appears that the Government requested the Director of School Education to send his report and thereupon the Regional Joint Director, School Education, submitted a report on 10.12.1988 recommending the proposal on the ground that the Narasaraopet area is not having proferssional educational facilities within its reach as required. On 18.12.1988 the Director of School Education addressed a further letter to the Government that the management promised to fulfil the necessary conditions for establishing a College of Education but that its minority status has not been established. The Government was requested to take a policy decision on the issue on the report of the D.E.O. On 25.1.1989 a criptic order was passed by the Secretary to Government stating that the request of the petitioner is rejected inasmuch as the Government is now consolidating the existing institutions in the current year and that therefore the request to permit new institutions cannot be considered for 1988-89.
3. The writ petitioner filed W.P. No. 14838/89 seeking the issue of a writ of Mandamus directing the authorities to grant permission to start a college at Narasaraopet. After hearing both sides, the learned Judge passed an order directing the Government to consider the petitioner's application in the light of the report of the Inspection Committee of the Nagarjuna University and of the Joint Director of School Education dated 10.12.1988 and in accordance with law within four weeks. This order was passed on 26.10.1989. After the said judgment, the petitioner made a representation on 28.10.1989 to the Minister for Education. When the matter was pending before the Minister, the Secretary, Education Department directed the petitioner to fulfil the conditions of deposit of Rs. 3.50 lakhs as corpus fund. On 9.11.1989 the Society deposited Rs. 3.50 lakhs in the Andhra Bank, Narasaraopet and produced a certificate to that effect. This certificate was however not in the joint names of the Society and the concerned departmental official as required by rules. Thereupon the Minister is said to have made an endorsement on 11.11.1989to issue orders immediately. However, subsequently permission was refused by a separate order dated 17.4.1990 made in G.O. Rt. No. 636 of 1990. It is this order that is questioned in the writ petition. It may be noted that in the meantime the Society filed a Contempt Case No. 220/90 and the same was admitted on 31.3.1990. The contempt case was dismissed on 2.8.90 in view of G/O. dated 17.4.90. Questioning the above said G.O. No. 636 dated 17.4.90 the present writ petition is filed on 30.8.1990. The learned single Judge allowed the writ petition and issued a mandamus directing permission to be granted within one month. Thereafter, it appears that the Society made a representation on 3.12.1990 and the University appointed another Inspection .Committee on 27.12.1990 on the question of granting a temporary affiliation. The Director of School Education wrote a letter dated 31.12.1990 requesting the Government to issue orders in favour of the petitioner. The Inspection Committee of the University made an inspection and submitted a report dated 22.1.1991 stating that the College may be granted temporary affiliation for 1990-91 for B. Ed. Course subject to certain conditions. The Society filed a Contempt Case C.C. No. 126/91 on 11.3.91 and the learned single Judge issued directions on 15.3.91 permitting the Society to admit students. It is stated that some students have since been admitted. It is at that stage that this writ appeal filed against the judgment dated 27.11.1990 in the writ petition, has come up for disposal.
4. In this writ appeal, it is contended by the learned Advocate-General that in view of the revised policy of the Government dated 6.8.1990 permission may not be granted to the Society to start the College of Education. He also contended that the right to establish a college is not a fundamental right, that it is a right regulated by the statute viz., the A.P. Education Act, 1982 and and that even if the conditions mentioned in Section 20 of the Act are satisfied it was not incumbent on the Government to grant permission. The learned Advocate-General also relied upon the amendment to the said Act made by A.P. Amending Act 27 of 1987 which was brought into force from 1.6.87 by G.O. Ms. No. 132 dated 22,5 1987. On the basis of the amendment, it is contended that the competent authority which is said to be the Government; has not issued any notification inviting applications for establishment of educational institutions and that therefore there is no right to establish an institution. It was further contended that there is no need in the locality to establish an institution and that Narasaraopet Revenue Division cannot be treated as a locality for purposes of Section 20. He also contended that no mandamus can of issued to the Government to grant permission and that the highest that the Court can do is to issue a direction for consideration of the application of the Society in accordance with the Act and the Rules.
5. On the other hand, it is contended by Sri T. Veerabhadraiah that the legislative policy envisaged in Section 20 of the Act has been considered by three Division Benches of this Court viz., Andhrakesari Educational Society v. Government of Andhra Pradesh, Andhrakesari Educational Society, Ongole v. Government of Andhra Pradesh, 1985 (2) APLJ 77 and Secretary to Government, Education v. Society for St. Ann's Mehdipatnam, Hyderabad, WA No. 392/91 dated 5-3-1991. It is also pointed out that it has been accepted by this Court that the right to establish an educational institution is a fundamental right. In any event it is contended that it is a natural right regulated by Section 20 of the Act and that there is no residuary power in the Government to reject an application even if it satisfied Section 20. Referring to the amendment of 1987 it is contended that the machinery for implementing the scheme under the said amendment had not been constituted and in fact no rules made or surveys conducted and therefore the appellants cannot rely on the said amendment. It was pointed out that in fact the impugned order refers to the unamended Section 20. Atleast six educational agencies have been granted permission to start Colleges of Education subsequent to 22.5.1987 and they were so granted on the basis of the unamended provisions of the Act. The learned counsel contends that the local area under the Act under Section 20 would take in even areas like the Revenue Division of Narasaraopet and that there is need in the said locality as per the Inspection reports of the Committee appointed by the University as also the opinion of the Regional Joint Director of Education and that it is not correct to say that there is no need in the locality. Lastly the learned counsel contends that it is open to this Court to issue a writ of mandamus to grant permission in cases where the authorities refused permission on irrelevant grounds or by not considering the relevant grounds.
6. On the above submissions, of the following points arise for consideration :
(1) Whether the Education policy dated 6.8.1990 can be said to be in conformity with the provisions of the Act and whether the same can be questioned in writ jurisdiction?
(2) Whether the right to establish an educational institution can be said to be a fundamental right or atleast a natural right and whether when it is regulated under Section 20 there is any residuary discretion in the Government to refuse permission in spite of the provisions of the Act being complied with?
(3) Whether the amendment to Section 20 by the A.P. Amending Act 27 of 1987 can be applied to the facts of the case and whether the necessary machinery has been constituted and the rules made so that the said amendment can be applied?
(4) Whether the respondents have established either that Narasaraopet is not a local area or that there is no need in the said locality to establish a separate College of Education in the context of Section 20 of the Act?
(5) Whether the conditions, if any, mentioned in Section 20 of the unamended Act or the amended Act are all pre-conditions which have to be satisfied by an applicant before seeking permission?
(6) Whether it is open to this Court ordinarily to issue a writ of mandamus directing the Government to grant permission for establishing an educational institution?
7. We shall first deal with point Nos. 2 to 4.
8. Points 2 to 4 :-- As already stated, the appellant is seeking to establish an educational institution, viz., a college of education wherein candidates obtain B.Ed. degree. Before referring to the educational policy dated 6.8.1990 evolved by the Government, it is necessary to refer to statutory provisions. Section 20 of the Act before its amendment in 1987 read as follows :--
"20. Permission for establishment of educational institution :
(1) No private institution shall, after the commencement of this Act, be established except in accordance with the provisions of this Act or the rules made thereunder. (2) Any local authority or any person or registered body of persons intending to--
(a) establish an institution imparting education, or
(b) open higher classes in an institution imparting primary education ; or
(c) upgrade any such institution into a high school, may make an application, within such period in such manner and to such authority as may be prescribed for the grant of permission there for. (3) While granting permission under Sub-section (2), the authority concerned shall have due regard to the following matters, namely :
(a) that there is need for providing educational facilities to the people in the locality ;
(b) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority ;
(c) that the institution is proposed to be located in sanitary and healthy surroundings;
(d) that the site for building, playground and garden proposed to be provided and the building in which the institution is proposed to be housed, conform to the rules prescribed therefor;
(e) that the teaching staff qualified according to rules made by the Government in this behalf is appointed ;
(f) that the applicpation satisfies requirements laid down by this Act and the rules and orders made thereunder."
It will be noticed that under Section 20 (3) (a), the competent authority is to have due regard to the need for providing educational facilities to the people in the locality. In Andhra Kesari Educational Society v. Government of Andnra Pradesh (1 supra) a Division Bench consisting of Madhava Reddy, Chief Justice and Sardar Ali Khan, J. observed that so long as there is educational need in the locality, any refusal by the State to establish an educational institution on grounds of policy would be contrary to the statute and also the Fundamental right of the citizens to educate themselves. The learned judges referred to the decision of the Supreme Court in State of Maharashtra v. Lok Shikshan Sanstha, to the effect that the policy of the Government will have to depend upon an overall assessment and scrutiny of the requirements of the residents of a particular locality and other categories of persons for whom it is essential to provide facilities for education. The learned judges also noted that in the same case the Supreme Court mentioned that it is not for the High Court to lay down a policy in the matter of providing educational facilities and that it is essentially for the State. If the State had made an overall assessment and arrived at a policy after a proper classification on a reasonable basis, it would not be for the courts to interfere with the policy leading up to such assessment. The learned judges noted that then the Government policy of not permitting any new B.Ed. classes was mainly based upon the fact that there were 13660 unemployed teachers. The learned judges pointed out that under Section 20 (3) (a), the authorities have to take into account the need for providing educational facilities for the training of a particular locality and if the people of a particular locality have such a need, starting of the institution cannot be denied by way of executive powers. Permission can- not be refused on extraneous grounds or without taking into account the facts referred to in Section 20 (3) (a).
9. The matter came up again before another Division Bench consisting of Jeevan Reddy, J. (as he then was) and Sardar Ali Khan, J. in Andhra Kesari Educational Society, Ongole v. Government of Andhra Pradesh (2 supra). The learned judges observed (at Page 82) that it is well-settled that there can be no room for a policy where the matter is governed by law nor can there be any policy at variance with law. In the Division Bench case before us in Secretary to Government, Education v. Society for St. Ann's Mehdipatnam, Hyderabad (3 supra), we had occasion to consider Section 20 (3) (a) as also the revised policy of the Government dated 6th August 1990 together with the note submitted by the Secretary, Education to the Cabinet. In the said policy decision taken on 6th August 1990, the Government had decided that (a) no new colleges of education should be permitted to be started in the academic year 1990-91 and (b) sub-standard colleges of education which have not fulfilled the conditions should not be permitted to admit students in the academic years 1990-91. It was also further pointed out that (c) as the annual intake of colleges of Education is far in excess of the employment potential, the possibility of utilising the infrastructure of the existing colleges of education to open new ITIs professional Institutions may be explored by the. Department, that (d) as there is a dearth of qualified Maths, and Physical Science B.Ed. Assistants, particularly of women, women Maths. and Physical Science candidates may be selected in the order of merit without reference to any minimum marks in the Common Entrance Test; and (e) that details of non-local candidates being appointed as B.Ed. Assistants in the five districts of Karimnagar, Adilabad, Medak, Khammam and Nizamabad may be obtained. It was stated that the Department may examine the need to set up colleges of education in the above five districts with reference to non-availability of local candidates for appointment as B.Ed. Assistants in the five districts. The note submitted by the Secretary which was placed before the court in that case showed that the policy not to permit new educational institutions was only based upon the total number of educational colleges in the State and the total number of seats in B.Ed. Colleges in the entire State. We have already pointed out that in Andhra Kesari Educational Society v. Government of Andhra Pradesh ( supra), Madhava Reddy, Chief Justice (as he then was) and Sardar Ali Khan, J. clearly pointed out that such a decision treating the State as a Unit and basing upon the non-employed candidates in the live-registers of Employment Exchange ran contrary to the provisions of Section 20(3) (a). In fact, the said power, it was reiterated in Secretary to Government, Education v. Society for St. Ann's Mehdipatnam, Hyderabad (3 supra)--ran contrary to the policy laid down by the Act and it is the need of the locality that has to be considered and not the need of the entire State. We also pointed out that even the non-employed B.Eds. who continued to be in the live registers might have since become employed otherwise or were self-employed. It was also pointed out that several of them were from sub-standard institutions, even according to the Government. We directed the Government to furnish information as to how many of the candidates are first class, second class or third class candidates. No information was forth coming. In that context, we remitted the matter to the Government for re-consideration in that case.
10. In the present case, the Government has once again relied upon the same policy which is dated 6th August 1990. In the impugned order, it is stated that so far as the need is concerned, there were three colleges of education in Guntur district and that they are catering to the needs over and above the requirements. No detailed statistics were referred to in the order or in the counter. It is, however stated in the impugned order thus:
"When an overall view of the entire State is taken the position as per the latest statistics is that there are 49 colleges of Education with an intake capacity of more than 7,000 students. It is the primary responsibility of the Government to look into the man-power requirements of both under public as well as private sector. The vacancy position of the B.Ed. assistants in Government institutions is only 900 per annum on an average. -There are more than 28,000 unemployed B.Ed. graduates on the rolls of Employment Exchanges in the State. From the above mentioned statistics it could be seen that there are required number of colleges throughout the State and particularly in Guntur District. Therefore there is no need for any more B.Ed. Colleges which if started will increase the unemployment and also be detrimental to the interest and welfare of the State".
It will be noticed that while stating that the three colleges in Guntur are sufficient to meet the local needs, no statistics were given with regard to the 'need' of the locality. The statistic given for the entire State are with regard to the availability of seats in the 49 colleges and as to the number of unemployed candidates. The question, therefore, that arises is whether there is any need in the locality which, according to the appellant, is referable to the Revenue Division of Narasaraopet in Guntur district.
11. The decision as to the need Under Section 20 (3) (a) has to be taken by the Government. It is stated across the bar that the number of seats available in the degree colleges in Guntur will be around 500. The Government will have to necessarily collect statistics as to the 'need' in Guntur district, as a whole if it is not treated as a local area. If Narasaraopet can be considered as a local area, they must also collect statistics with regard to the need of that area. It is not for us to decide whether Guntur district should be taken as a unit or Narasaraopet Division should be taken as a unit. It is for the Government to take a decision in that behalf. We find that in the decision of this court in Andhra Kesari Educational Society, Guntur v. Government of Andhra Pradesh (2 supra), decided by Jeevan Reddy, J. (as he then was) and Sardar Ali Khan, J.), it was assumed that the district could be taken as a unit. There, the district concerned was Prakasam district. While coming to the conclusion that there is need or otherwise for any locality, the Government could also take into consideration the reports, if any, already submitted by the Committee of the University as also the District Educational Officers or the Regional Deputy Directors of Education or other officers. In the present case, in fact, the said reports of the committee and the Director are to the effect that there is a need in the locality, viz., Narasaraopet Revenue Division. It does not appear from the impugned order that the correctness or otherwise of the saidreports has been considered by the Govt. It is well-settled that if a decision is taken with regard to a fact or discretion of the Government is exercised by not taking relevant factors into consideration or by considering irrelevant factors, the decision is liable to be quashed or the discretion exercised declared bad and the matter is to be ordinarily remitted once again to the authority. In the present case, when the Government came to the conclusion that there was no need in the locality, viz., Guntur district, they have not considered whether the Revenue Division of Narasaraopet should be treated as a separate locality and they have also not adverted to any statistics with regard to the need of Guntur district or Narasaraopet Revenue Division. It would be incumbent on the Government to come to the conclusion basing upon how many schools are started every year, how many extra teachers are required every year and in what subject. From the material papers filed by the Government, it is clear that even according to them, 25 private unaided institutions out of the 47 B.Ed. colleges have been declared to be substandard institutions established without providing infrastructure and teaching staff. It is not known whether the three existing institutions in Guntur district belong to that category or not. In our judgment in Secretary to Government v. Society for St. Ann (3 Supra) we also referred to the office note of the Secretary and also to the recommendations and the directives of the Central Government to the State Government to close down these substandard institutions. It is not clear as to what steps have been taken to implement the directive of the Central Government for closing these substandard institutions or for making them conform to rules. We are, therefore, satisfied that the decision of the Government in refusing to grant permission under Section 20 of the A.P, Education Act is vitiated by non-consideration of the above factors.
12. At the conclusion of the arguments, however, it was brought to our notice by the learned Advocate-General that Section 20 of the Education Act has been amended by A.P. Act 27 of 1987 substantially and that, therefore, the Government orders could be justified under the amended provisions also. It may be noticed that neither in the impugned order of the Government nor in the counter-affidavit filed in the writ petition, has any reference been made to the provisions of the amended Section 20 to say that the rejection of permission is based on the amended provision. In fact, the impugned order of the Government G.O. Rt. No. 636 dated 17-4-1990 extracts the provisions of the unamended Section 20 (3) (a) of the Act and makes no reference to the provisions of the amended section. We are, therefore, unable to accept the contention for the first time raised by way of an additional affidavit in this writ appeal by the Government that the impugned order could be justified under Section 20 as amended in 1987. It is provided under Sub-clause (1) of Section 20 that the competent authority shall, from time to time, conduct a survey so as to identify the educational needs of the locality under its jurisdiction and notify in the prescribed manner to the local newspaper calling for applications from the educational institutions desirous of establishing educational institutions. Sub-clause (2) states that in pursuance of the said notification, any educational agency could apply and start an institution or for upgrading an educational institution etc, within such period and in such manner to such authority as may be notified for the grant of permission therefor. Sub-clause (3) of Section 20 states that for such grant, any educational institution shall satisfy the authority that there is need for providing educational facilities to the people of the locality etc., The other Sub-clauses of Section 20 (3) (a) mostly correspond to the earlier unamended section. It would be noticed that the amended Section 20 (3) (a) requires that the competent authority shall conduct a survey and identify the educational needs of the locality and give public notice in the newspapers so that educational agencies could apply. Section 2 (12) defines 'competent authority' as any person, officer or authority authorised by the Government by notification to perform the functions of the competent authority for such local area or for such purposes as may be specified in the notification. It is admitted before us by the learned Advocate-General that the necessary rules made Under Section 20 as amended in 1987, have not been framed so far. There has been no occasion for conducting a survey from time to time in any local area for the last five years. It is true as laid down by the Supreme Court in Surinder Singh v. Central Government, following earlier cases, it is not necessary for the Government to frame rules as a condition precedent for the exercise of power granted under the statute. But the position Under Section 20 (3) (a) as amended is that it is for the competent authority to conduct a survey, identify the educational needs of the locality and publish them in the prescribed manner in local newspapers calling for applications. By not conducting surveys--even if there were no rules--by not inviting applications on that basis, the competent authority cannot be in a better position. In fact, in the additional counter-affidavit, a contention is raised that the Government is the competent authority. This cannot be accepted in view of the definition in Section 2 (12). As pointed out earlier, the impugned order goes by the unamended Section 20 (3) (a) obviously in view of the fact that there was no survey conducted from time to time as envisaged by the amended Section 20 (1).
13. Assuming that the Government can exercise its powers under an Act in the absence of Rules and that the framing of Rules is not a condition precedent, the position here is that neither the competent authority nor the Government have conducted any surveys in any local areas regarding the 'need' of that area. There is no information as to the percentage of increase in the population in various towns, cities or local areas, or as to how many new schools are required, how many additional classes are necessary, what schools are to be upgraded, how many additional teachers are necessary in each local area, how many are available in local area and, if available, how many are from sub-standard institutions, whether they are third class B.Eds. etc. The exercise contemplated by the Act or the Rules, in our opinion, in respect of each local area has not taken place. In spite of a specific request from us, no such material has been placed before us.
14. In this context, it is necessary that the Government notices the detailed rnles made by the Kerala Government while ascertaining the needs of the locality \by publishing details in a newspaper inviting applications from various persons to establish institutions. This judgment of the Kerala High Court is reported in Madhavan Pillai v. State of Kerala, 1989 Kerala Law Times 687. The said judgment has been affirmed by the Supreme Court in State of Kerala v. K.G. Madhavan Pillai, . A reading of the said judgments shows that it will be necessary to scientifically locate the areas where new educational institutions of various categories have to be started and publish the same. For that purpose, the need of the locality has to be ascertained based on population figures, the number of students in the existing institutions and the number of new students likely to join and the number of further institutions or educational classes required. Such a survey has to be made on a scientific basis. But without conducting a survey and issuing notification, it is not possible for the Government to contend that they go by some general figures applicable to the entire State.
15. For the aforesaid reasons, we hold that the impugned order is liable to be quashed. We hold accordingly on points 2, 3 and 4.
16. Point 1:--Under Article 19 (1) (g) of the Constitution of India, all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business. Under the unamended Section 20 of the A.P. Education Act, no private institution shall be established. Under the amended Section 20, educational agencies intending to establish an institution may make an application within such period, in such manner and to such authority as may be notified for the grant of permission therefor. Section 20 (A) prohibits individuals to establish institutions. In the present case, the validity of these provisions of the amending Act have not been challenged before us perhaps because of the fact that the impugned order appears to be based upon the unamended Section 20.
17. Under the unamended provisions, this court proceeded to observe in Andhra Pradesh Educational Society v. Government of Andhra Pradesh (1 supra) that the right to establish educational institutions individually or otherwise is a fundamental right. Reliance in that case was placed upon the observations of the Supreme Court in State of Maharashtra v. Lok Shikshan Sanstha (4 supra). We find that the same view was taken by the Kerala High Court in Bapu Educational Association v. State, . In Sharda Education Trust, Ahmedabad v. State of Gujarat and Anr., 1976 (17) Gujarat Law Reporter 298 and Rev. Fr. Joseph v. State, AIR 1958 Kerala 288 it was held the managements have fundamental right to carry on occupation or business, though the right to run a school does not carry with it the right to secure recognition or aid from Government. The Sakharkehda Education Society, Sakharkheda v. The State of Maharashtra, the Bombay High Court took the view that the words 'profession' or 'occupation' and 'business' under Article 19 (g) (1) are of wider import to imply institutions which want to establish educational institutions. The abovesaid decision of the Bombay High Court was of course reversed by the Supreme Court on another ground. In Bharat Sevashram Sangh v. State of Gujarat, the Supreme Court observed that the provisions in Section 23 of the Gujarat Education Act, 1977, which provide for taking part of the management by any registered school was not unconstitutional. In that context, they observed :
"The said provision is introduced in the interest of the general public and does not in any way affect prejudicially the fundamenral right of the management guaranteed under Article 19 (1) (g) of the Constitution."
The above observation in a way implies the fundamental right under Article 19 (1) (g).
18. However, in State of Kerala v. K.G. Madhavan Pillai (7 supra) the Supreme Court appears to have accepted that the right to establish an institution is a natural right. They did not, however, think it necessary to decide whether it is a fundamental right (paras 20 and 21). In the Division Bench case in Secretary to Government, Education v. Society for St. Ann's (3 supra), the earlier decisions of this High Court were followed to hold that the right to establish an educational institution is a fundamental right. It is not necessary for our purpose to decide whether after the amendment in 1987, the right continues to be a fundamental right or not inasmuch as new individuals are prohibited from establishing educational institutions.
19. Point No. 5 : So far as the conditions required under the un-amended Section 20 as to purchase of land, deposit of corpus fund, establishment of model school, building accommodation etc. are concerned, it has already been held by the Division Bench of this court in Andhra Kesari Educational Society, Ongole v. Government of A. P. (2 supra) consisting of Jeevan Reddy, J. (as he then was) and Sardar All Khan, J. that the said conditions are not pre-conditions and that it is open to the authorities to grant provisional permission subject to fulfilment of these conditions by the persons who intend to establish educational institutions. Merely because all the above conditions are not fully satisfied on the date of the application, the application cannot be rejected. This is because of the fact that persons purchase land, books and furniture and prepare all the infrastructure and ultimately if permission is refused, their interests will be seriously prejudiced and they would have to suffer great hardship. The final permission can, however, be granted only if the applicants satisfy all the conditions fully. So far as the amended provisions of Section 20 are concerned, the same principle will naturally apply and there will be no difference.
20. Point 6 : In view of our finding on point 4 that the impugned order is liable to be quashed, we have no difficulty in quashing the same. But the question is whether it is open for this court to go into the merits of the needs of any locality and can issue a writ of mandamus directing the Government to grant permission. In our judgment in Secretary to Government, Education v. Society for St. Ann's (3 supra) we have held that ordinarily the High Court under Article 226 of the Constitution of India should not issue such a writ of mandamus directing permissions to be granted. We, however, notice that such a direction was granted by the Division Bench in Andhra Kesari Education Society, Ongole v. Government of Andhra Pradesh (2 supra). It is true that the learned Judges issued such a direction and the Government was directed to give time to petitioner in that case to make good any inadequacies. But we do not think that the learned Judges laid down any principle of law that this court should straightaway issue a writ of mandamus directing grant of permission. In that case, the facts were found and even with regard to the local need, the learned Judges assumed that the material on record showed that there was local need so far as Prakasam District was concerned in view of certain reports of the committees. We have already held that it is for the Government to decide the question as to the local need and while doing so, it is necessary for the Government to consider any material before it by the parties including any reports of any committees appointed by the State or by the Regional Deputy Director or other persons, apart from statistics showing the need. We do not, therefore, think that the abovesaid Division Bench laid down any such absolute proposition. It may be that in a given case where after the matter has been sent to the Government for re-consideration and the Court thinks that the Government is not granting permission either deliberately or mala fide, it might issue a mandamus to grant permission. In such cases, it is for the Court to consider whether a writ should be issued to grant permission or not.
21. In the present case, we are clearly of the view that the learned single Judge should not have gone into the merits of the need of the locality and direct grant of permission. The necessary facts have not been considered by the Government. If any decision has been arrived at by the Government on irrelevant consideration or omitting relevant consideration or without reference to the legislative policy as mentioned in the Act, or without conducting the necessary survey or obtaining statistics, it was necessary for the learned single judge to quash the order and remit the matter for fresh disposal.
22. For the aforesaid reasons, we allow the writ appeal and remit the matter to the Government for fresh disposal in accordance with law. Inasmuch as rules under the amended Section 20 have not been framed and the necessary surveys have admittedly not been conducted in any manner as envisaged by the said provision from time to time, the Government will naturally have to consider the present case on the basis of the unamended provisions as was in fact, done under the impugned order and also take into consideration the reports of the committee of the University as well as the Regional Joint Director (Education). The Government are also bound to explain under what circumstances permission was granted after 1987 to the following six institutions :--
1. Shadan College of Education, Hyderabad.
2. St. Mary's Centenary College of Education, Visakhapatnam.
3. St. Alphonsa College of Education, Hyderabad.
4. Anwar-ul-uloom College of Education, Hyderabad.
5. Sultanululam College of Education., Hyderabad.
6. Fatima College of Education, Warangal.
even though local surveys to be conducted under amended provisions were not conducted and how permissions for the said institutions were granted. The Government shall also bear in mind the decision of this court in Secretary to Government v. Society for St. Ann's (3 supra) where it has been held that the Government policy dated 6th August 1990 in so far as it is contrary to the provisions of Section 20 (3) (a) is in violation of the legislative policy.
23. The Government shall issue notice to the petitioner, give a hearing with regard to permission and dispose of the application of the petitioner, treating the same as one for the academic year 1991-92, within two weeks from the date of receipt of this order. Inasmuch as the petitioner has not obtained the necessary certificate from the competent authority for being greated as a minority institution, it would be necessary for the petitioner to satisfy the requirements as for a non-minority institution, till a certificate as a minority institution is issued.
24. The writ appeal is allowed and disposed of in terms of the above directions. No order as to costs. Advocate's fee Rs. 500/-