Andhra HC (Pre-Telangana)
The Rayalaseema Navodaya Minorities ... vs The Government Of Andhra Pradesh And ... on 19 August, 1991
Equivalent citations: AIR1992AP54, 1991(3)ALT87, AIR 1992 ANDHRA PRADESH 54, (1991) 2 LS 108
ORDER
1. These proceedings arise out of the refusal of the State to grant permission to the petitioner-Society to establish a College of Education. The relevant facts are the following :
2. Petitioner-Society was registered under the Societies Registration Act, XXI of 1960 bearing S. No. 270 of 1988, Members of the Managing Committee of the Society belong to Christ Church in Church of South India, in Cuddapah District. The Society was established with the object of establishing primary and Upper Primary Schools, technical vocational schools and colleges. College of Education etc. for the betterment of the Christian minorities. Petitioner filed an application for permission to establish a College of Education in Cuddapah on 12-8-1988. On receipt of the application, Government called for a report from the District Educational Officer, Cuddapah on 10-11-1988. Sri Venkateswara University, within whose local jurisdiction Cuddapah District lies, sent up an inspection team which submitted its report. According to the petitioner, educational needs of the locality viz., Cuddapah District fully justifies the grant of permission. Petitioner submits that it is more so because a minority community has a right to establish and administer educational institutions of its choice, and since there is no College of Education run by minority community in Cuddapah or Ananthapur Districts. There is no private College of Education in Chittoor District. The only college run by Sri Padma-vathi Mahila University at Tirupathi is confined to woman and has a few seats. In 1984-85 Government granted permission to establish a private College of Education in .Badevl which is 70 Kms. from Cuddapah. Yet another College of Education namely, Duglas Memorial College of Education, Proddatur which was sanctioned in 1987 as a Christian minority institution became defunct later. Petitioner submits that educational needs of the locality for establishing a College of Education was clearly spelt out by the facts viz., (a) the total Christian population in 'Cuddapah District according to the 1981 census was 2,50,256, (b) existence of 15 Christian Junior Colleges and High Schools in Cuddapah District with a pupil strength of 9.380, and (c), the location of all regional offices at Cuddapah which is the zonal headquarters of Rayalaseema, of which Cuddapah is the never-centre.
3. Petitioner submits that in spite of the need justifying grant of permission, Government rejected petitioner's application by order dt. 12-12-1988 on the ground that the Government was consolidating the existing institutions in that year and therefore permission for new B.Ed. Colleges would not be granted during 1988-89. Petitioner urges that the above ground was wrong, since the Government had granted permission to other institutions during the same period.
4. Petitioner filed another application dt. 28-4-1989 to reconsider the order so as to grant permission for the next year i.e. 1989-1990. On 1-8-1989 petitioner also filed an application to the 2nd respondent for recognition of the College as minority institution. He sent reminders on 29-5-89, 12-7-89, 9-8-1989, 24-8-89 and 30-10-1989 to the 1st respondent seeking permission to establish the College of Education. In the meantime, a Division Bench of this Court allowed W.p. No. 3165/ 89 directing the respondents to grant permission to establish new College of Education, notwithstanding the alleged attempts of the State to consolidate the organisational structure of teaching institutions in the State.
5. The State Government had issued G.O.Ms. No. 526 Education (Rules) dt. 21-12-1988 promulgating A.P. Minority Educational Institutions (Establishment, Recognition and Regulation) Rules, 1988. A cabinet committee was constituted as competent authority under R. 3 of those rules, By an amendment to the rules, on 1-8-1989 the Director of School Education was designated as the pompetent authority under the above rules (hereinafter referred to as the Minority Recognition Rules). Petitioner submits that the authority to grant permission vests in the Government and the authority to grant recognition as minority institution under the Minority Recognition Rules Vests in the Director of School Education.
6. Petitioner filed Writ Petition No. 14914/89 on 23-10-1989, since Government did not pass orders on its representation for reconsideration of the question of grant of permission to establish a College of Education in Cuddapah District. By an interim order dt. 24-10-1989, this Court directed the Government to pass orders on the representation of the petitioner dt. 28-9-1989. On 27-9-1989 Government had passed an order which was served on the petitioner only on 31-10-1989, rejecting the application of the petitioner on the ground that the management failed to fulfil conditions for establishing the college and that the Government had taken a policy decision not to permit establishment of new Colleges of Education which did not fulfil the statutory conditions in advance.
7. The writ petition was originally filed for a writ of mandamus, seeking the issue of a direction to the respondents to pass orders according to permission to the petitioner-Society to establish a College of Education at Cuddapah during the academic year 1989-90 and subsequent years. After receipt of the Government order dt. 27-9-1989, petitioner sought amendment of the prayers in the writ petition to the effect that-
"the Hon'ble Court may be pleased to issue a writ, one in the nature of mandamus declaring the order of the Government in letter No. 1153/E.E. 2/89-1 dt. 27-9-1989 as illegal and void and consequently direct the Government to grant permission to the petitioner-society to establish a College of Education at Cuddapah, during the academic year 1989-90 and for subsequent years."
8. On 8-2-1990 this Court passed another interim order directing the Government to inform the petitioner within two weeks thereof as to what were the conditions the petitioner had to fulfil. Petitioner was to fulfil those conditions within four weeks thereafter. Government was directed to grant permission after the concerned authority inspected and submitted its report regarding fulfilment of the conditions. Competent Authority was directed to pass orders on the request of the petitioner for recognition as minority institution. Till such time as orders were passed on the status of the institution, it was to be conducted as a non-minority institution.
9. The Government did not pass orders within the period mentioned in the order dt. 8-2-1990. Petitioner thereupon filed Contempt Case No. 136/90 on 8-3-1991. In the meantime, the respondent had filed W.V. M.P. No. 1025/90 on 25-6-1990 praying that the interim order dt. 8-2-1990 may be vacated. But that miscellaneous petition was not brought up for orders. In the affidavit accompanying that petition, the respondent had indicated that there was no reason justifying establishment of a College of Education at Cuddapah, since there was no need for educational facilities in support of the claim. Reference was also made to the fact that most of the private Colleges of Education had only substandard facilities; and elimination of such institutions and consolidation of educational facilities on a realistic basis was necessary to step in line with the national policy on education.
10. On 23-4-1991 after a preliminary hearing of the Contempt Application, I directed the respondent to appear to answer the charge of contempt on 6-6-1991 and 21-6-1991 directed the writ petition along with all petitions therein to be posted on that date.
11. By issue of a Memo dt. 16-11-1990 Government had directed the Director of School Education to conduct an inspection and submit a report relating to the fulfilment of conditions prescribed by the Government as pre-conditions for permission to establish the College. The Regional Joint Director of School Education Cuddapah, conducted an inspection, and based on his report dt. 18-1-1991, the Director of School Education submitted a report to the Government on 25-2-1991. He stated that the conditions relating to the Corpus fund, accommodation, furniture, audio-visual equipment etc. had been fulfilled. He also reported that lease deed for an extent of Ac. 10.00 of land, library of 315 books, laboratory containing Rs. 15,919 worth of equipment, undertaking to start a model school in the college premises within five years, constitution of staff selection committee, construction of permanent buildings within a period of five years etc. were also produced by the management. On the basis of the above inspection note, the Director of School Education informed the State Government that "the management had not fulfilled the following conditions-
"1. Library is inadequate.
2. There is no model school attached to the institution.
3. 10 Acres of land is away from the college premises.
4. There is no mention by Regional Joint Director of School Education of the qualifications of the staff of number of staff appointed."
It was also mentioned that as per the existing rules, Director of School Education is the competent authority to issue minority status certificate in respect of Rayalaseema Navodaya Minorities Educational Society. Government in its turn communicated the above to the management.
12. Counsel for the petitioner submit that non-compliance with condition's mentioned by the Government are not material for the grant of permission, since they are no preconditions. He submits that educational need of the locality has to be judged with reference to the need and desire of the minority community. It is his further submission that an application for permission submitted by minority community has to be dealt with on a different footing, in view of the right of the community to establish and administer educational institutions of its choice as provided in Art. 30(1) of the Constitution of India. He submits further that the reasons for rejection of the application having been spelt out clearly by the respondent, namely four items of deficiencies, they are not entitled to rely on any other reason to supplement the same. Considerable reliance is placed on the interim order dt. 8-2-1990 which directed grant of permission on the petitioner complying with the conditions. Counsel also submits that the petitioner having undertaken in unmistakeable terms its willingness to cure all the defects, there is no reason not to grant permission. He submits that in any case, the 2nd respondent cannot but grant recognition of minority status to the institution without waiting for grant of permission under S. 20 of the Act.
13. Advocate-General appearing for the respondents submits that the need for establishment of educational institutions is the prime consideration in the matter of grant of permission to open new educational institutions and that has to be the most important consideration in the case of applications by minority institutions as well.
It is his submission that there is no need for establishment of a College of Education in Cuddapah, since there are as many as five Colleges of Education in Rayalaseema area -- one each in Anantapur, Chittoor and Cuddapah districts and two in Kurnool District. He also submits that taking the State as a whole there is an unmanageable surplus of trained graduate teachers who may not be absorbed in the existing and arising vacancies in the near future. It is also his submission that on an over all view of the educational need, the obligation of the State to provide employment to trained graduate teachers, the outlay which the Sate has to incur in maintaining the educational institutions and the fall out on the general economic situation by increasing the number of educated unemployed, the decision of the State not to permit establishment of the College of Education was fully justified. He submits that the conditions laid down in S. 20 of the Act before and after its amendment are statutory pre-conditions and non-compliance with such conditions can only result in the rejection of the application for permission. According to him, R. 3 of the Minority Recognition Rules indicates that only after permission to establish educational institution is granted need the question of recognition of minority status under those rules be considered.
14. It is necessary to refer to the relevant provisions of the A.P. Education Act and Rules to comprehend fully the controversy involved in this case.
15. Chapter VI of the A.P. Education Act, deals with establishment of Educational Institutions and their administration and control. S. 18 casts an obligation on the Government to provide adequate facilities for imparting general education, technical education, special education and teacher education in the State by-
(a) establishing and maintaining educational institutions;
(b) permitting any local authority or a private 'body of persons to establish educational institutions and maintain them according to such specifications as may be prescribed;
(c) taking, from time to time, such other steps as they may consider necessary or expedient.
16. Section 19 classifies educational institutions into State institutions, local authority institutions, and private institutions. Cl. (c) of S. 19 provides that each private institution shall be established or maintained and administered by a body of persons registered in the manner prescribed. S. 20 deals with permission for establishment of educational institutions and deals with the relevant instructions in that regard. That provision as it stood before the amendment by Amending Act 27 of 1987 provided that-
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 therefor.
(3) While granting permission under sub-sec. (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 application satisfies the requirements laid down by this Act and the Rules and Orders made thereunder.
17. After the Amendment Act 27 of 1987, the provisions read as follows :
20(1) The competent authority shall, from time to conduct a survey as to identify the educational needs of the locality under its jurisdiction, and notify in the prescribed manner through the local news paper calling for applications from the educational agencies desirous of establishing educational institutions.
(2) In pursuance of the notification under sub-sec. (1), any educational agency including local authority or registered body of persons intending to-
(a) establish an institution imparting education;
(b) open higher classes in an institution imparting primary education; or
(c) upgrade any such institution into a high school;
(d) open new courses (certificate, diploma, degree, post-graduate degree courses, etc.) may make an application, within such period, in such manner and to such authority as may be notified for the grant of permission therefor.
(3) Any educational agency applying for permission under sub-sec.(2) shall-
(a) before the permission is granted, satisfy the authority concerned-
(i) that there is need for providing educational facilities to the people in the locality.
(ii) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority;
(iii) that the institution is proposed to be located in sanitary and healthy surroundings :
(b) enclose to the application :
(i) title deeds relating to the site for building, play ground and garden proposed to be provided :
(ii) plans approved by the local authority concerned which shall conform to the rules prescribed therefor; and
(iii) documents evidencing availability of the finances needed for constructing the proposed buildings; and
(c) within the period specified by the authority concerned in the order granting permission :--
(i) appoint teaching staff qualified according to the rules made by the Government in this behalf;
(ii) satisfy the other requirements laid down by this Act and the Rules and Orders made thereunder failing which it shall be competent for the said authority to cancel the permission.
18. After this amendment the competent authority is invested with an obligation to conduct a survey to identify educational needs of the locality under its jurisdiction and issue notification in the prescribed manner in local newspapers calling for applications from educational agencies desirous of establishing educational institutions. Only such applications as are received pursuant to the notification have to be considered for grant of permission to establish the educational institutions. Rules to effectuate S. 20(1) of the Act have not been prescribed so far. Admittedly, the competent authority has not conducted any educational Survey, nor has it notified dates for receipt of applications. Therefore applications for permission to establish new educational institutions have to be dealt with under sub-sees. (2) and (3) of S. 20, as held by this Court in Govt. of A,P. v. St. Anthony's Educational Society (1991) 2 ALT 240.
19. While granting permission under the pre-amended S. 20 of the Act, the authority concerned was required "to have due regard to" "need for providing educational facilities to people in the locality" among other factors. After the amendment, it is the obligation of the educational agency which applies for permission "to satisfy the authority concerned that there is need for providing educational facilities to the people in the locality." In either case, satisfaction of the concerned authority of the need for educational facilities is a prime factor in the matter of grant of permission. But the burden has now been shifted to the applicant to satisfy the competent authority of the need for providing educational facilities. This seems to me to be a very significant departure from the earlier provision. It also appears to me that before grant of permission, the concerned authority has to satisfy itself independently about other conditions mentioned in S. 20 of the Act. Since there is some controversy on these aspects, I will deal with them in furthr detail.
20. Section 21 deals with grant or withdrawal of recognition of institutions imparting education, in writing by the competent authority. Power is given to the competent authority to withdraw recognition for failure to comply with or contravention of the conditions, subject to which recognition or permission was granted.
Section 24 deals with appointment and removal of manager of private institutions.
21. Rules have been framed-under G.O.Ms. No. 395 Education (1-2) dated 10th August, 1984 under Ss.20 and 21 read with S. 99 of the A.P. Education Act "to regulate and control of the establishment and running of the Teacher Training Institutes by private managements" (hereinafter referred to as the Establishment of Private Training Institution Rules). Rule 2 prescribes conditions subject to which the competent authority may grant permission to establish a school. Sub-rule (4) of R. 2 in particular, refers to infrastructurel facilities like adequate furniture, apparatus and appliances declared by departmental officers to be necessary, a library containing books, suitable works on the theory, history and practice of education and with a museum and wherever possible, a small garden. Building and site is prescribed as conditions in Cl. (b)(i) of sub-rule (4) of R. 2 which is to the following effect :
"The management should own its building to run the institution, and for this purpose the management shall acquire vacant site of 10 acres and they should construct the building with a plinth area of 8,000 sq. ft. thereon to accommodate the institution. The land must be registered in the name of the Committee and they should produce a non-encumbrance certificate and title deeds etc. to establish their ownership.
The building should contain halls to run classes, laboratory and a good library with a playground of 3 acres."
Sub-rule (7) of R. 2 provides that-
"The Government shall, after considering the request in all aspects, grant or reject such permission on merits and in accordance with the provisions of sub-sec. (3) of S. 20 of the Andhra Pradesh Education Act, 1982."
Sub-rule (8) of R. 2 creates an obligation in the management to comply with all the requirements for recognition made an application in that regard in Form II. The District Educational Officer has to verify whether all such requirements have been fulfilled and forward such applications through the Director of School Education, who shall ensure that such applications are sent to the Government with the recommendation so as to reach the Government by the end of April each year. Sub-rules (9) to (12) of R. 2 contains the time schedule for grant of recognition of the institution and selection and admission of students. R. 5 deals with withdrawal of recognition in cases, where, if the competent authority is not satisfied about -
(a) the organisation and development of the institution by approved methods and upon approved lines;
(b) the educational needs of the locality.
and among others, fulfilment of conditions as specified in Chap. IV of Andhra Pradesh Educational Rules. R. 6 provides that every teacher Training Institute shall have a 'model school' of its own attached to it containing classes necessary for training of teachers and that in addition to the model school established under sub-rule (a), other schools in the neighbourhood may also be used for training practice. Staff Selection and Selection of Candidates for admission are covered by R. 7.
Application for grant of permission for starting a private Teaching Training Institute has to be in Form 1. Details relating to location of the proposed institute with reference to place, taluk and District, money deposits, land acquired for the institute, accommodation and other facilities are to be furnished in that application form. Similar details are to be furnished in the application for recognition of Teacher Training Institute in Form No.II as well. It is naturally with reference to the details furnished in the application and the statutory prescriptions contained in the Act and the Rules that applications for permission at initial stage and for recognition at the subsequent stage have to be dealt with. Likewise, provisions are made in G.O.Ms. No. 526 Education (Rules) Department, dt. 21-12-1988 framing rules under S. 99 of the A.P. Education Act, 1982 (Act No. 1 of 1982) for establishment, recognition and regulation of minority educational institutions under the private managements.
22. The scheme of the rules indicates that minority status has to be assigned to educational institutions on the application of educational agencies. This may indicate that the process of recognition of an educational institution as minority institution has to follow permission to establish the institution. Rules 3 to 7 of the Minority Recognition Rules and Form I prescribed thereunder contain sufficient indications that the application shall be in respect of educational institutions which are already established, and not earlier thereto. If it be otherwise, an educational institution yet to be established may be recognised as a minority institution, but permission even to establish that may still be rejected. That only results in an avoidable anomaly.
23. The provisions in the sub-rules indicate that the application for recognition has to satisfy the permission-Authority with documentary evidence that it is entitled for such recognition, and it is open to the authority in the absence of such proof, to treat the application as one filed for establishment of a non-minority educational institution. The scheme and the relevant rules and orders seem to me to indicate that the minority educational institution also has to comply with all the requirements in the rules including the conditions laid down in S. 20 before it can claim grant of permission to establish an educational institution and grant of recognition as a minority educational institution.
24. Counsel for the petitioner urged that the reasons mentioned in the order issued by the Director for not granting permission to establish the College of Education were fourfold viz., that (a) the library is not fully equipped, (b) there is no model school attached to the institution, (c) the 10 acres of land is 1.5 kms. away from the college, premises and (d) there is no mention by the Regional Joint Director of School Education of the qualifications of the staff and number of staff appointed. Counsel submits that none of these are pre-conditions. He also submits that the petitioner undertakes to comply with conditions (a) and (b), that condition (c) is arbitrary and that condition (d) can be complied with only after the college is established. He relied on a decision of this Court in Andhra Kesari Educational Society v. Government of A.P. (1985) 2 APLJ 77 wherein this Court had held that (at p. 80)-
"adequate financial provision, acquisition of building, playground, garden and other conditions are not made pre-conditions for grant of permission. All that sub-sec. (3) says is that while granting permission, the authority concerned shall have due regard to the said matters."
He also placed reliance on the observations contained in the decisions of a Division Bench in Secretary to Government, Education Department v. Society for St. Ann's Mehdipatnam, Hyderabad (1991) 1 ALT 20 in which this Court reiterated the same principle laid down in Andhra Kesari Educational Society's case (1985) 2 APLJ 77 (supra) that-
"In case some of the conditions for grant of permission under S. 20 have not been complied with, the competent authority cannot straighway reject the application but must grant time for compliance with conditions."
Reference is also made to yet another decision in the Government of A.P. v. St. Anthony's Educational Society (1991) 2 ALT 240 indicating that it is obligatory on the part of the Government to give time to the applicant to make good any inadequacy in compliance with the conditions mentioned under S. 20 of the Act. Petitioner has also referred to the judgment of a Division Bench of this Court in Writ Petition No. 3166 of 1989.
25. Counsel for the petitioner also relies on the decisions in Commissioner of Police, Bombay v. Gordhandas Bhanji, , Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, to assert that the competent authority cannot supplement reasons mentioned in the order by recitals contained in an affidavit filed in proceedings wherein the order is challenged. He therefore submits that the order rejecting the application for permission has to be set aside.
26. Advocate-General invited my attention to the decision of a Division Bench of this Court in W. P. 3165/89, dt. 1-12-1989 to the effect that compliance with the conditions mentioned in S. 20 of the A.P. Education Act and the Rules made thereunder shall be preconditions for grant of permission. He sub-mited that this decision was rendered by Jeevan Reddy, J. (as he then was) with specific reference to Andhra Kesari Educational Society's case (1985) 2 APLJ 77 which was rendered by the same Judge. It is therefore, submited that reliance on the decision in Andhra Kesari Educational Society's case (1985) 2 APLJ 77 is of no assistance in view of the fact that the proposition laid down therein has been effectively overruled by the subsequent bench decision. He submitted that the two bench decisions in Secretary to Government, Education Department v.
Society for St. Ann's Medhipatnam, Hyderabad, (1991) 1 ALT 20 and Government of A.P. v. St. Anthony's Educational Society, (1991) 2 ALT 240 in so far as they proceeded entirely on the basis of Andhra Kesari Education Society's case, (1985) 2 APLJ 77 and without reference to the Bench decision in W.P. 3165/89 cannot be treated as good law.
27. On a careful Scrutiny of the provisions S. 20 of the Act and the Rules which I have extracted at some lengh, I am inclined to agree with the Bench Decision in W.P. 3165/89 and hold that a promise or undertaking to fulfil conditions for grant of permission for educational institutions need not necessarily be accepted by the competent authority. I am also of the opinion that the competent authority was right in refusing to act on the basis of the undertaking in the light of its experience that most of the institutions which were granted permission subject to such promises of fulfilment are yet to perform.
28. It is far too late in the day now to contend that a minority community has got an unrestricted right to establish and administer educational institutions of their choice. The earliest decision on this question may perhaps be State of Bombay v. Bombay Education Society, wherein it was held that the right under Art; 30(1) of the Constitution of India is subject to the right of citizens under Art. 29(2). In re The Kerala Education Bill, 1957, , Supreme Court reiterated the same proposition and added that Regulatory provisions meant to advance excellence of education would apply equally to minority institutions as well. In D. A. V. College, Bhatinda v. The State of Punjab, , The Ahmedabad St. Xaviers College Society v. State of Gujarath, the same propositions were further emphasised. The latest in the series of decisions laying down that the minority has no unrestricted right to establish or administer education institutions in All Bihar Christian Schools Association v. State of Bihar, wherein the Supreme Court upheld the terms and conditions for grant of recognition of minority schools as regulatory in nature which seek to secure excellence in education and efficiency in management of schools, that those terms and conditions applicable to a recognised minority school do not compel the management of a minority school Ito surrender its right of administration; and instead, those conditions only subserve the purpose of ensuring efficient management of minority educational institutions. The conditions were held not to infringe the right of the minority community under Art. 30(1) of the Constitution of India.
29. The same point of view was reiterated in a still later decision in Andhra Kesari Educational Society v. Director of School Education, holding that the regulations intended to advance excellence in educational standards and to provide for satisfactory conditions of service for the staff do not annihilate or restrict the right of the minority under Art. 30(1) of the Constitution of India. It was held by the apex court that such regulations only promote interests of the institution, its teaching staff and the student community.
30. Thus the substance of all the decided cases on the amplitude of Art. 30(1) of the Constitution is that it is subject to regulations, but such regulations shall not abridge or annihilate the right of the minority community. The permissible regulations are those that subserve the excellence of the institution as a minority institution rather than advance public interest. Regulations regarding conduct of the institution do advance excellence of educational standards and they do not curtail but promote the interests of the institution. It is in the light of this dicta of the Supreme Court that I have to decide the question as to whether the Government acted in contravention of the right of the minority under Art. 30(1) of the Constitution of India in not granting permission to establish the college of education.
31. I am of the opinion that satisfaction of the competent authority about existence of educational needs of the locality was and continues to be a relevant consideration for grant of permission to establish an educational institution under S. 20 of the A.P. Education Act before and after its amendment. I am also of the opinion the insistence on this condition is a permissible regulation on the right to establish and administer educational institutions. While it was a matter for consideration at the time of grant of permission under S. 20(3) before its amendment, it is an obligation cast on the applicant for permission to establish an educational institution that the educational needs of the locality justifies the grant of permission. As a matter of fact, the petitioner had attempted such need by recitals in its application, by stating that there is no college of education established in Cuddapah town to serve the needs of the minorities whose population is considerably more when compared to other Districis in the entire State. This submission was sought to be elaborated in the affidavit accompanying the Writ Petition by stating that -- "there is no college of Education run by Minority community in Cuddapah or Ananthapur Districts. There is no private college of education in Chittoor District. The only college run by Sri Padmavathi Mahila University at Tirupathi is confined to women and has only a few seats. In 1984-85 Government granted permission to establish a private college of Education in Badvel which is 70 K.Ms, from Cuddapah." Reference was also made to the population of Christians in Cuddapah District, which according to the last census was 2,50,256 and that there are equal number in Ananthapur District and about one lakh in Chittoor District. It was stated that there are 15 Chgristian Junior Colleges and High Schools in Cuddapah District with a pupil strength of 9,380. Reference was also made to the importance of Cuddapah as Zonal Headquarters of Raya-laseema with advantage of its central location. The attempt obviouy was to show that edcuational needs of the locality justified establishment of a College of Education by the minority community at Cuddapah.
32. These assertions are controverted in paragraph 5 of the counter affidavit to the effect that "there is already one Private College of Education at Cuddapah District under the name S. B. V. R. College of Education, Badvel, that there is also Sri Saraswati College of Education at Anantapur District, that apart from that there are Rayalaseema Christian College, Kurnool and Viswavani College of Education, Kurnool in addition to Padmavathy College of Education at Chittoor in Rayalaseem area which are adequately serving the needs of the locality, that Badvel is only 35 K.Ms.from Cuddapah and not 70 K.Ms. Duglas Memorial College of Education at Proddatur is stated to be another college of Education." On the basis of these details, respondent asserts that there is no need for a College belonging to the Christian minority Community, because there are as many as six Colleges of Education in Rayalaseema of which Rayalaseema Christian College, Kurnool and Douglas Memorial, College were recognised as Christian minority institutions. With reference to the population, it was stated in the counter affidavit that the population of Christian in Cuddapah or the student strength in Junior Colleges are not material for ascertaining educational needs of the locality for establishing the College of Education in Cuddapah.
33. I am of the opinion that if an educational agency files an application for establishment of a minority educational institution, the applicant has to satisfy the competent authority of the need for establishment of such an institution by positive and affirmative evidence. The averments contained in the application and its annexures hardly made out such need for establishment of a College of Education in Cuddapah.
34. Counsel for the petitioner submitted that in Government of A.P. v. St. Anthony's Educational Society, (1991) 2 ALT 240, the Court has clearly indicated that -
"it is the need of the locality that has to be considered and not need of the entire State."
and that locality in S.20 must be confined to Revenue Division or the District at the most. For the purpose the present case, I will assume that District shall be the locality, eventhough the pleadings indicate that the petitioner treated Rayalaseema as the locality for the purpose. The total population of Christians in Cuddapah, Chittoor and Ananthapur Districts or the number of students in the Junior Colleges are not relevant to establish education needs for establishment of a college of Education in Cuddapah. Admittedly, there is one other college of Education in Cuddapah District, There are two more in Kurnool (one of which being a minority institution), one in Ananthapur and one at Tirupathi in Chittoor. These details furnished in the counter affidavit seem to me to be material to decide the question as to whether the education needs of the locality was established or not. If these facts cannot be controverted, they are definitely determinative of the educational needs of the locality particularly in the context of S. 20(3)(a)(i) of the Act. It is necessary to remember that after the amendment of S. 20 by Act 27 / 87, burden is shifted tot he educational agency applying for permission to satisfy the authority concerned that there is need for providing educational facilities to the people in the locality. The question which which arises in this case is whether the petitioner had successfully discharged the burden which the statute has put on it ?
35. A full Bench of the Kerala High Court had occasion to consider whether the minority community has got a right to establish and education institution of its choice in any locality any time it pleases. The Full Bench held in Fr. Mathew Munthiri Chinthyil Vica v. State of Kerala, FB at Page 230 -
"An extreme position entitling the minority to ask, and to be given, the educational institutions, wherever it wants to establish, at any moment when the cry is raised, is not the scope and the content of Art. 30. Regulation of the right in time as well as in space must be permissible. Rule-2 seems to provide for nothing more than such regulation. It provides for the assessment of the educational needs of the locality by a competent authority after taking into account the relevant consideration. In weighing the educational needs of the locality, the authority is bound to consider, and will indeed consider, the requirements of the minority communities in establishing educational institutions of their choice,"
36. I am therefore of the opinion that the minority educational agency applying for permission to establish an educational institution of its choice is bound to satisfy the competent authority of the need to provide educational facilities to the people in the locality and this has to be done with specific reference to objective data which the applicant produces, because sS. 20(3)(a)(i) of the A.P. Education Act casts the burden of proof on the applicant. The averments in the counter affidavit seeking to offset the assertions contained in the affidavit of the petitioner cannot therefore be ignored as irrelevant.
37. It is true that the validity of an order has to be decided with reference to the gounds mentioned in it. But it is an extreme proposition to urge that the facts wehich are relevant in the exercise of a statutory power cannot be pleaded in defence, particularly when the petitioner has chosen to supplement his statutory application by further material in the affidavit in support of the Writ Petition. I do not understand anything said in the decisions in Commissioner of Policy v. Gordhandas Bhanji, or Mohinder Singh Gill v. Chief Election Commissioner, to have laid down that the respondent authority is not entitled to sustain the order on statutory grounds which are not specifically mentioned in the order if existence of such grounds can be manifested by production of the records. I need not labour this any further in view of the fact that the decision of single Judge in Andhra Kewari Educational Society, (1985) 2 APLJ 77 is not good law in view of the fact that the same learned Judge had laid down specifically on behalf of a Division Bench on a later occasion in the Judgment in W.P. 3165/89 that compliance with all the conditions mentioned in S. 20 of the Education Act and the rules made thereunder are pre-conditions for the grant of permission and not those to be complied with after grant of permission and/or recognition.
38. It is asserted in the counter affidavit that the inspection commission found that the building offered by the petitioner was hardly sufficient to accommodate the College and that it was still in an unfinished stage. The Commission noted that there was no library, laboratory equipment or material and space required to conduct practical and laboratory experiments relating to the subjects offered during training. The commission also noted that the petitioner enclosed a list of books available in the Upper Primary School, which were not sufficient for the B.Ed, college. The Commission was of the view that the Society may first be required to develop the infrastructural facilities and thereafter a second inspection commission may visit and inspect the facilities made available at the appropriate stage after the society has improved the required basic infrastructure for starting the college and then only the authority may consider the possibility of granting permission. The report of the Director of School Education was also on similar lines. The respondent also submits that once permission is accorded subject to fulfilment of conditions, it becomes impossible for the department to make the institutions comply with the same and this pernicious tendency was noticed particularly by the Division Bench in W.P. 3165/89.
39. This assertion becomes important in the light of the complete reorganisation of the system of Teacher Training Education on the basis of priorities indicated by the National Policy on Education. It is submitted in the counter affidavit that improvement in the quality of teacher education acquires significance in the context of implementation of the policy.
40. It is the case of the petitioner that in spite of the policy perspectives, the respondents have made no serious attempt to weed out substandard institutions and on the other hand, the State Government had granted permission to start four colleges of education during the year 1988-89.
41. Petitioner seems to suggest that if other substandard institutions can continue and four others had been allowed to function, why should the policy imperatives be put only against one or a few of the applicants. The argument is attractive, but it is hardly possible to accept the same. If the applicant for a college of education at Cuddapah has not been able to satisfy the competent authority of the need to provide educational facilities of this nature, the only fact that the same authority has permitted another agency elsewhere to establish a similar college is no ground to hold that the refusal in the case of the petitioner is discriminatory. Nor can it be held to be arbitrary to refuse to grant permission to the petitioner on condition of fulfilment of the statutory requirement after, the grant in view of the clear legal position laid down by a Division Bench in W.P. 3165/89. The experience of the State Government in other cases where permission was granted subject to fulfilment of conditions is not a totally irrelevant consideration in deciding whether the authority shall commit the same mistake again. Refusal to be beguiled into repeating the same mistake cannot be considered as arbitrary or discriminatory.
42. Respondents submit that if permission is accorded for establishment of the institution and the same will not be recognised due to non-compliance with statutory conditions, it will result in gullible students being admitted; but they will not receive adequate instructions for training. Reference is made to a decision of the Supreme Court in State of Tamil Nadu v. St. Joseph Teachers Training Institute where the High Court of Madras accepted the request of the students who were admitted in an unrecognised minority institution to appear for the examinations. The Supreme Court reversed the Full Bench decision of the Madras High Court and held that the students were not entitled to any such relief because they were admitted into institutions which were not recognised and did not comply with the requirements of the regulatory provision which applied equally to minority institutions as well.
43. Counsel for the petitioner submits that a Division Bench of this court in Andhra Kesari Educational Society v. Government of A.P., had held that the State Government shall not interfere with rights of the minorities to establish and administer educational institutions when once educational need in the locality is established and that the State cannot refuse to permit establishment of the institution on grounds of policy contrary to the statute and the fundamental rights of the citizens to educate themselves. I have found that the petitioner had not made any serious attempt to satisfy the competent authority that there is need to provide educational facilities to the people of the locality as required by Section 20 of the Act, nor are there such materials produced in these proceedings to show that the authority acted illegally in not granting permission. When the petitioner has failed to make out that there is "need for providing educational facilities to the people in the locality" whether the locality be Cuddapah town, for Cuddapah District or Rayalaseema area, the principle of the decision of the Division Bench in Andhra Kesari Educational Society v. Govt. of A.P. cannot be called in aid. On the other hand, respondents have furnished details indicating that there is no need for establishment of any further colleges of education in the town, District or the region. I would have expected the petitioner to make out a case with definite and positive averments if there was need for establishment of a College of Education exclusively for the minorities. Details relating to the same are also not forthcoming.
44. In the light of these facts the decision of the Division Bench in Andhra Kesari Educational Society case (supra) cannot be applied, because the need for the educational institution has not been established.
45. Counsel for the petitioner submitted that the only aspect which the 2nd respondent need have considered was whether the petitioner did comply with the conditions as directed by this court in the interim order dt. 8-2-1990 and consideration of need or otherwise was beyond the scope of controversy in view of that order.
45A. I am not persuaded to agree. Under Section 20 of the A. P. Education Act, the competent authority is obliged to be satisfied about the need to provide educational facilities in the locality. That is a statutory requirement. No court is entitled to direct any authority to act contrary to or in defiance of the law which is applicable. Much less can it be done by the court in an interim order. Nor can I persuade myself to believe that my learned brother Sri Seetharama Reddy, J. meant to direct the respondents to defy the law and grant permission to establish the college, if a few of the statutory conditions alone were satisfied. It is elementary that courts function under and in furtherance of laws and not de hors the laws. The inquiry into and satisfaction about "the need to provide educational facilities to the people of the locality" was very much a part of the duty of the respondents even after the order dt. 8-2-1990 in dealing with the application of the petitioner. The only fact that in complying with the order dt. 8-2-1990 the competent authority confined its attention only to the conditions referred to therein cannot be taken to indicate that it had abdicated its obligation to consider other relevant statutory requirements.
I, therefore, hold that-
1. Minority Educational Institutions are also subject to the regulatory provisions contained in Chapter VI of the A. P. Education Act and the Establishment of Private Training Institutions Rules.
2. The applicant has to satisfy the competent authority of the "need to provide educational facilities to the people of the locality" and that such satisfaction is the very basis for the exercise of jurisdiction of the competent authority under Section 20 of the Act read with the rules.
3. The conditions mentioned in Section 20 of the Act read with Rule 2 of the Establishment of Private Training Institutions Rules are preconditions for grant of permission to establish college of education.
4. The competent authority is right in rejecting the application of the petitioner for non-compliance with the four pre-conditions stated in the report dt. 25-2-1991.
5. The 2nd respondent has jurisdiction not to grant the application of the petitioner for permission to establish the college of Education if the applicant failed to satisfy him of the need for providing educational facilities in the locality.
6. The 2nd respondent was right in holding that recognition of the petitioner's institution as a minority educational institution need be considered only after it is duly established, and.
7. The interim order of this Court dt. 8-2-1990 did not preclude the 2nd respondent from dealing with the petitioner's application under Section 20(3)(a)(i) of the Act read with the Rules.
46. In this view, the relief which the petitioner seeks in the writ petition cannot be granted. I, therefore, dismiss the writ petition, but in the circumstances, there will be no order as to costs.
47. Petition dismissed.