Andhra Pradesh High Court - Amravati
Central Andhra Junior College ... vs State Of Andhra Pradesh, on 24 December, 2020
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HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION Nos.17602 of 2020and 18111 of 2020
COMMON ORDER:
These two Writ Petitions have been filed essentially challenging the G.O.Ms.No.23, dated 13.05.2020, which was issued by the 1st respondent - State of Andhra Pradesh reducing the maximum intake limit of the students into the Intermediate Course from 792 students to 360 students and the per class limit to 40 by making amendments to G.O.Ms.No.12, dated 09.03.2002.
In view of the interim orders granted, learned Additional Advocate General has wanted the stay to be vacated and in the alternative the writ itself should be heard.
This Court with the consent of all the learned counsel, who are appearing for all the contesting parties, has taken up the Writ Petitions for final disposal.The urgency expressed by the learned Additional Advocate General about the future of the thousands of students, who would apply for +2 course (intermediate course), prompted this Court to take up the Writ Petition itself for hearing. All the learned counsel also cooperated and as a result Writ Petitions were taken up for hearing and heard.
The 1st set of Writ Petitions challenges the G.O.Ms.No.23, dated 13.05.2020, by which the intake of the students into the private junior colleges was changed. As per 2 the said G.O. everyprivate junior college is permitted to open 4 sections of 40 students each. Earlier it was 160 students per section, which has been reduced to four sections of 40 students. The said G.O. has also imposed a total / overall ceiling of 360 students per year. Even if all the permitted sections were opened each section which could have 40 students alone. Therefore, the total strength has been limited to 360 students. This G.O. is challenged on various grounds.
In the second batch of writ petitions, W.P.No.18111 of 2020 etc., the petitionershave challenged the press release dated 20.10.2020, by which Board of Intermediate Education directed that only "online admission" would be permitted and that the admissions would be strictly as per the online method only. The earlier existing method of physical applications; counseling in colleges etc., has been changed to a strictly online method. The press release by which this is notified is challenged in the second batch of Writ Petitions. PETITIONERS SUBMISSIONS:
The lead in these matters were taken by Sri B. Adinarayana Rao, learned Senior Counsel followed by Sri Damalapati Srinivas, learned Senior Counsel, Sri G.R.Sudharkar and the other learned counsels, who argued in line with their respective petitions. For the State the learned Additional Advocate General argued the matter. 3
Learned Senior Counsel Sri B. Adinarayana challenged the said G.O. on various legal grounds. He also raised certain factual issues, which this Court will be setting out in detail. He drew the attention of this Court to the affidavit that was filed and also the counter affidavit that has been filed on behalf of the State. He relies upon the various enactments and rules which have been annexed to the Writ Petitions and also certain other aspects. He drew the attention of this Court to the Andhra Pradesh Intermediate Board Education Act-1971; the Rules framed thereunder by G.O.Ms.No.539 in 1975;the A.P. Educational Institutions (Establishment, Recognition, Administration and Control of Institutions) of Higher Education Rules, 1987 (G.O.Ms.No.29, dated 05.02.1987);the G.O.Ms.No.114, dated 09.08.2000; G.O.Ms.No.12, dated 09.03.2002; G.O.Ms.No.5, dated 08.01.2008 and finally to the impugned G.O.Ms.No.23, dated 13.05.2020. By placing reliance on the various provisions in these rulesthe learned Senior Counsel argued that despite existence of the power to regulate the admissions and also to sanction or to disaffiliate the junior college, the impugned G.O. does not refer to any statutory power for reducing the intake. He argues that despite existence of a statutory power the impugned G.O. was issued without relying on any of the sections of the Act or the rules made thereunder. He therefore submits that there is no statutory backing for the same. He submits that in the just before the commencement 4 of the academic year the existing strength of the intake of the students was reduced from 88 students per class to 40 students per class. Similarly, he also argues that the existing ceiling of 792 students (Maximum permissible) was reduced to 360 students. He points out that this power was exercised abruptly and overnight without taking into consideration the ground realities or the factual situation. He points out that in the year 2019, 5,95,679students have passed the 10th Class examination. He also draws the attention of the Court to the fact that due to the prevalence of the Covid pandemic every student who applied for 10th class examination was deemed to have passed. He also points out that in view of the fact that there are absolutely no failures in the qualifying examination there will be a greater number of applications, which would be submitted this year. The Government itself has passed all the students, but it has, in the words of the learned senior counsel, prevented them from going forward and joining the intermediate course of their choice by limiting the seats available. He also relies upon the fact that the total number of students, who have joined in the colleges in the previous academic year 2019-20 is 5,19,956. Thisfigure includes the students in Government Colleges, Aided Colleges and the private unaided colleges. He points out that 87,000 students joined in the Government colleges, 5,65,622 students joined in the aided colleges. He submits that therefore only 1,43,569 students out of total of 5,19,956 5 students studied in Government or aided colleges. The rest (3,76,387) students joined in the private unaided colleges.
Therefore, learned counsel submits that it is clear that it is the private unaided colleges that are catering to the needs of the bulk of the students.He submits that drastically and virtually overnight the number of seats are reduced by almost 54%.Learned senior counsel points out that these facts are in the annexures to the Writ Petition, which are not in fact denied.
Intheimpugned G.O., as per the learned senior counsel two reasons are pointed out (A) private junior colleges are running the colleges in urban apartments and therefore not conducting their classes in a hygienic atmosphere (B) As per the RastriyaMadyamicSikshaAbhiyan(in short "RMSA") and the Central Board of School Education (in short "CBSE"), the maximum class room's strength is 40. He says that these are the only two reasons assigned inthe G.O. As far as the infrastructure is concerned, learned senior counsel submits that the rules and the provisions of law, on which he relied upon, provide the power and the authority to the State to disaffiliate or even refuse to grant affiliation to a junior college that does not meet the infrastructural standards prescribed. Learned senior counsel argues that if some institutions do not have necessary infrastructure he submits that the power to disaffiliate the college is also 6 available. The power to take penal action was never exercised by the State and on the contrary he submits that even the colleges which have necessary infrastructure are being made to suffer by this Order. He points out that virtually no data whatsoever is furnished even during the course of the final hearing to decidewhich of the 1843 colleges, which are running in the State, do not have necessary infrastructure or admitting more than 40 students per class and are conducting classes in urban apartments. Coming to RMSA the learned counsel points out that the entire scheme is read, it is clear that it deals with special set of students and the restriction of 40 students is not because of "lack of infrastructure". Referring to CBSE, learned counsel submits that while the ceiling of 40 per class is fixed there is no upper limit provided for the number of sections. Therefore, he submits that if an institution has the infrastructure as stipulated by CBSE they can have higher number of classes. The impact of the students or the teaching due to the reduction is not borne out by record also as per the learned Senior Counsel. He points out that the law on the subject is sufficiently well settled and private educational institutions have a right to admit and run their colleges subject to reasonable restriction. He points out that in this scenario the G.O. was only intended to cause damage to the private educational institutions. He points out that there is absolute non application of mind and that the law on the subject 7 including various judgments of the Hon'ble Supreme Court of India in caseslike RajanNayakVs TM Nayak, Islamic Academy of Education and Another v State of Karnataka etc., were all ignored and that the State has issued the impugned G.O with anulterior motive and without any application of mind. The reasons for making this sudden change which is in vogue since 2002-03 is not clear. He also argues that State action must be backed by reasons and must be fair.
Learned counsel for the petitioners Sri G.R.Sudhakar, also argued on similar lines and points out that the exercise of power is vitiated. He also argues in line with what is stated by learned Senior Counsel and states that the decision making process in this case is suffering from lack of reasons, non-application of mind etc. He submits that this is a fit case in which this Court should interfere and strike down the impugned G.O. SUBMISSIONS OF THE STATE:
Learned Additional Advocate General in reply to this argues in his usual vehemence and states that the private unaided colleges have formed an unholy cartel and are virtually controlling the intermediate education. He argues that without basic infrastructure, without basic class rooms; the students are being crowded into urban apartments and are being made to pay high fees. He argues that the aim of 8 the Government is only to regulate the Intermediate Education, which according to him is the foundation for future growth of the students. He also points out that the power has always been vested in the State to regulate the education including the Intermediate Education. He points out that the petitioners have not questioned the existence of the power. He also argues that the petitioners merely quoted Articles 14, 19 and 30 (1) and 300-A of the Constitution of India, without proving that any of these rights are actually infringed. He points out that in G.O.Ms.No.114 dated 09.08.2000 a ceiling of 1000 was fixed. This was reduced to 798 by G.O.Ms.No.12. Thereafter, after two-year trial and error method the issue was analyzed at depth and the strength was reduced further. Therefore, he submits that the existence of the power and the exercise of the power cannot be doubted. As per the learned Additional Advocate General the State wants to maintain proper student teacher ratio. It is his contention that the reduction is a valid exercise of power. He traced the power of the State to Section 99 of the Education Act and argues that Section 99 Clause 25 gives the power to the State to regulate admission into the educational institutions for private study, special courses and also the attendance. He points out that earlier for 88 students there was one teacher, now for 40 students there will beoneteacher.
Hence, he argues that it is for the benefit of the students. He also points out that a majority of the colleges have temporary 9 affiliation and do not have proper building or infrastructure. The aim of the State is therefore to help the students and to ensure that they do not study in urban apartments, particularly at a crucial stage of their lives. Relying on G.O.Ms.No.29 (A.P. Education Rules, 1987) and particularly Clause 14 (7),the learned Additional Advocate General argues that the State Board of Intermediate Education has a right to make rules for the admission of students into the Intermediate Board. He also submits that the Educational agency does not have the power to interfere in this matter. He also points out that all the educational institutions are running with temporary affiliations only and that they do not have the necessary infrastructure. The learned Additional Advocate General stresses that the power exists in the State to regulate the admission and the same cannot be denied. Lastly, he submits that in view of the fact that virtually all the colleges are running in temporary accommodation and temporary affiliation, the State was compelled to reduce the strength per class room to protect the health and the well- being of the students.
REJOINDER:
In rejoinder, learned Senior Counsel appearing for the petitioners argues that exercise of power and the decision making process is in issue before this Court. He points out that all the State actions should be reasonable and fair. He argues that the action particularly when it deals with the 10 career of the studentat a crucial time of his life viz., +2 (Intermediate) should be supported by strong and cogent reasons. Learned Senior Counsel points out that the reasons given for reduction of intake are not correct. He points out that if the institutions do not have the necessary infrastructure there is enough power vested in the State to look into the issue and cancel the affiliations according to law. But the same is not exercised for the reasons which are not disclosed. Lastly, he submits that by reducing the intake to 40 the malady or the problem highlighted viz., the running the courses in urban apartments is not really eliminated. For all the reasons mentioned above he prays that the Writ Petitions should be allowed.
COURT:
After hearing all the learned counsel this Court notices that there is no dispute in the strict sense of the term of the existence of the power in the State by various rules and Acts. This Court is, therefore, proposing to examine the decision making process to decide whether the reasons that are now stated by the State are germane, that the decision making process was based upon the strong and cogent facts / reasons as are required under law, particularly for State actions. This Court is also examining whether the State has proper data and reasons for arriving at its conclusion. Transparency in the decision making process is also being examined.11
The A.P. Education Act, 1971 (Act 2 of 71) defines an 'affiliated college' in Section 2 (2), 'intermediate examination'in Section 2 (8) and 'junior college' in Section 2 (9). Junior college is an educational institution affiliated to the Board which provides courses to study that intermediate examination in accordance with the regulations. The Board of Intermediate Education is established under Section 3 of this Act. Under Section 9, the Board has the power to make regulations for the State and to affiliate any college or educational institutions. It has the power to direct the inspection of colleges under Section 9(ix); to call for reports, returns and other information under Section 9 (x) and to adopt measures to promote physical, moral and social welfare of the students under Section 9 (xi). In Section 9 (2)(a) it is made very clear that it is the Board alone that has the power to affiliate any college for intermediate education.
In addition, under Section 12 the Board is given power to make regulations. Section 12 (e) deals with the conditions for affiliation of a college. Section 12 (f) deals with the standards of the staff, equipment, accommodation, training and other facilities.Section 17 gives power to the State to make rules.
In exercise of the powers under Section 17, the rules under the A.P. Intermediate Education Act, 1971 were formulated by G.O.Ms.No.539, dated 22.05.1975. Rule 3(2) 12 empowers the Board to call for reports, returns and other information. Rule 3 (2)(3) deals with the power of the Board to invite applications for affiliation. Some of these rules were modified and substituted by G.O.Ms.No.598, dated 06.07.1978 by Notification-4. Rule 3 (9)(1)(x) gives the power to the standing committee to recommend measures for promotion of physical, moral and social welfare. Rule 4 (3)(5) gives the power to the standing committee on academic affairs to lay down the standards of accommodation, laboratories, libraries, furniture and equipment. Rule 4 (3)(8) gives the power to the standing committee on academic affairs to make regulations for admission of candidates.
The A.P. Educational Institutions Rules 1987 were issued by G.O.Ms.No.29, dated 05.02.1987. Rule (1) makes it clear that it is applicable even to Junior Colleges, which are clarified as of institutions imparting intermediate education with or without attached High school / degree class / courses. The Commissionerateis defined as Andhra Pradesh Commissionerate of Higher Education under Rule 2 (c). The power to grant or withdraw the permission for establishment of classes is given to the Commissionerate under Rule 3. Rule 4 deals with the conditions for grant of permission. Rule-6 deals with conditions for grant of permission. Rule 6 (1)(2) deals with Corpus fund. Rule 6 (6) deals with actual physical infrastructure and the extent of land to be provided by the educational institutions. For junior colleges 10 acres 13 of land and the buildings with plinth area of 8,000 sq.feet is recommended. Rules 6 (6) to 6 (9)deal with the infrastructure etc., to be provided. Rule 6 (11) deals with a private institution located in a private accommodation. It provides that an educational agency with a lease deed can establish a private educational institution, if it has a lease of not less than 5 years. In addition, the agency should also produce evidence to show that they have a requisite land and money to construct the building and that they would do needful within a period of five years period or later. Staffing pattern is defined in Rule 7 and power to grant or refuse permission is given under Rule 8. Similarly, the power to grant or to withdraw recognition or violation is given to the Board of Intermediate Education under Rule 9 of this G.O. This rule provides as follows:
"9(a) The Board of Intermediate education shall be the competent authority for granting or withdrawing of temporary / permanent recognition / affiliation for all educational institutions imparting intermediate education asper clause (ii) of sub-section (1) of Section 9 of the Andhra Pradesh Intermediate Education Act, 1971 (Act No.1 of 1971).
(b) for all other institutions mentioned at (b) of (f) in sub-rule (2) of rule-1 the competent authority for granting or withdrawing of temporary / permanent recognition / affiliation shall be the University concerned.
9 (2)(a): Government institutions shall be accorded permanent recognition / affiliation straight away, by the competent authority if he is satisfied that the conditions prescribed for this purpose are satisfied.
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9 (2) (b): To start with, the private institution shall be accorded temporary recognition / affiliation subject to fulfilment of such conditions as may be prescribed by the competent authority. The temporary recognition / affiliation is renewable annually for a period of five years relaxable to ten years in deserving cases by which time the educational agency shall fulfill the conditions stipulated for grant of permanent recognition / affiliation. Applications for renewal of temporary recognition / affiliation shall be made to the competent authority in Form - III not alter than three months prior to the expiry of the period of temporary / recognition / affiliation."
Similarly Rule 11, which is as follows deals with power for withdrawal of permission/recognition/affiliation:
"11. Conditions for withdrawal of permission/recognition/affiliation - The competent authority shall withdraw permission/recognition/affiliation granted to the private educational institution under the following circumstances:
(1) When an institution, including a permanently recognised/affiliated institution (both non-minority or minority) in the opinion of the competent authority, has failed to fulfil any of the conditions prescribed, the permission/ recognition/affiliation accorded to that institution shall be withdrawn permanently or for any specified period.
(2) When permission/recognition/affiliation of the institution is to be withdrawn, the educational agency shall be given an opportunity to give its explanation for failure to comply with the prescribed requirements, within a month. If the educational agency is prepared to rectify the defects communicated by it, the competent authority may give a reasonable time not exceeding three months to rectify the defects. If, in the opinion of the competent authority, the educational agency has rectified the defects pointed out, the permission/recognition/affiliation may be continued subject to such further conditions and instructions 15 that may deemed necessary. But if the educational agency fails to rectify the defects within the given time, the permission/recognition/affiliation shall be withdrawn.
(3) (a) The competent authority after withdrawing permission shall recommend to the competent authority concerned to withdraw the recognition/affiliation granted to the institution in question, who shall take necessary action accordingly.
(b) The competent authority for granting of recognition/affiliation may also initiate action to de-
recognise disaffiliate any institution for failure to fulfil the conditions prescribed for granting/continuing the recognition affiliation accorded to the institution and recommend to the competent authority for granting of permission, to take steps to withdraw the permission granted to establish the institution, who shall take necessary action accordingly."
Even for opening of additional sections it is mentioned that competent authority shall have to give permission. The existing private institutions which had affiliated by July, 1982 are deemed to have accorded temporary recognition. Thereafter, as per the Rule 13 (2) all the education agencies or private institutions shall have to apply for grant of permanent recognition, which can be granted or refused by the competent authority.
Therefore, it is clear from a reading of these existing rules and Acts that more than adequate power is granted to and is available with the statutory authorities including the Board of Intermediate Education to grant affiliation on certain conditions. Power is also granted to take away the affiliation 16 or to derecognize the institution if the conditions that are necessary have not been fulfilled. The power to make regulations for the physical, moral social welfare of the students is also given to the Board of Intermediate Education. The regulations also prescribed for the standards of accommodation to Section 12 (1)(f) of IntermediateEducation Act, 1971. The power to call for the returns, information and reports also vests with the Board of Intermediate Education. As per the rules framed in G.O.Ms.No.539, the standing committee on academic affairs is given the power to lay down the standards of accommodation, libraries, laboratories, furniture and equipment. The minimum area ofland and building that have to be provided are clearly mentioned in 1987 rules issued vide G.O.Ms.No.29, dated 05.02.1987. In respect of junior colleges 10 acres of land and building with plinth area of 8000 sq.ft., is mentioned. Thepower to grant permission or refuse the permission are spelt out in Rule 8 to 13 of this G.O. Coming to the three G.Os. which learned Additional Advocate General relied upon to buttress his argument that the State always been exercising power, the first of these G.O.Ms.No.114, dated 09.08.2000. For the purpose of this decision a few facts are noticed: the ceiling limited is prescribed as 1000for the academic year 2001-02. The nextis G.O.Ms.No.12, dated 09.03.2002 and by this, the strength was reduced from 1000 to 352 (88 students per class)and a 17 total permissible limit of 792 students (9 x 88). Lastly, G.OMs.No.23 was issued on 13.05.2020 by which the strength is reduced to 4 sections and 40 students per class, with a total ceiling of 360 students.
One of the main arguments advanced is that this G.O.is not supported by any reasons and is issued just to cause a loss for the purposes which are not clearly found or visible. If these G.Os., are examined against the backdrop of this submission, G.O.Ms.No.114 was issued on 09.08.2000, fixing the total ceiling number of students as 1000. The reasons why the Government had to issue the G.O.are stated in paragraph 2 and continued in paragraph 3. It indicates that the litigations were pending and that the High Court suggested to them to come up with the scheme for granting of permission for the next academic year and for additional sections. The matter was carefully examined and total deliberations were carried out at various levels before the G.O.Ms.No.7 was issued. This G.O. was also issued for the academic year 2000-01. Thereafter on 09.03.2002, G.O.Ms.No.12 was issued, by which the strength was reduced. In this case also there was a writ petition filed in the High Court and a representation was also given to the Government to modify the scheme as per the G.O.Ms.No.114. This representation was given by the Private Junior Colleges Management Association. Thereafter, the Commissionerate of Intermediate Education and the Secretary of Intermediate 18 Education gave certain inputs, which lead to the passing of the said G.O. When it comes to the impugned G.O. the two reasons stated are (a) that the colleges are being run in urban apartments (b) that the RMSA and CBSE fixed maximum class room strength as 40.
This Courthas set out in detail the powers that are available to the State to regulate and to control the Intermediate Education and the junior colleges. The Act, Rules and Regulations provided that more than adequate power to the State to either to grant affiliation or to withdraw the affiliation. The minimum standards are fixed. The period for which temporary affiliations can be given is also fixed. Yet learned Additional Advocate General argued that virtually all the collegesor a large majority of the colleges are being run in "urban apartments" and the students are being crowded into the small rooms, which cannot be called class rooms. This Court while appreciating the passion with which the submission is made by the learned AdditionalAdvocate General cannot overlook the fact that there is no whisper why the State did not invoke the powers available with it to look into the accommodation provided and thereafter decide to take action. This is the first flaw that this Court notices. The rules provide for regulating the affiliation and also give power to the State to withdraw the affiliation, recognition or 19 permission if any of the conditions prescribed are not adhere to. The affiliation / permission, recognition can be withdrawn either permanently or for a specific period. This is clear from Rules 11 (1) and (2) of G.O.Ms.No.539, dated 22.05.1975, under which rules were framed. In addition, in case of colleges for temporary affiliations also Rule 9(2)(b) provides that the temporary affiliation is only for 5 years can be extended to 10 years in deserving cases. Despite the existence of this power there is absolute silence on the part of the State and no explanation is forthcoming why action is not taken. Apart from this, this court also notices in G.O.Ms.No.5, dated 08.01.2008 the rules that were framed with regard to accommodation, land etc., were modified. This G.O. was issued on 08.01.2008 making the new regulations applicable from academic year 2008. Paragraph 9 of this G.O.Ms.No.5 clearly specifies the Government's objective of providing sufficient infrastructure to ensure the growth of body andmind of the students. The existing colleges which do not satisfy the minimum carpet area of 8,000 sq.ft., / 6,000 sq.ft., would be asked to make good to shortfall. The colleges were also given opportunity to makeavailable play grounds in separate areas. These rules as per G.O.Ms.No.5 and Rule 11 (2) of G.O.Ms.No.539, dated 22.05.1975 provided for hearing or a show cause notice and an explanation before the action of disaffiliation, withdrawal of recognitionetc., are taken. Similarly, G.O.Ms.No.5 provides for an opportunity to the 20 existing colleges to make good the shortfall.As mentioned earlier in this order, G.O.Ms.No.114 was issued when the matter was in the High Court and the High Court by its order dated 27.12.1999 in W.P.No.13927 of 1999 directed the respondents i.e., the Government of Andhra Pradesh and the Board to come up with a scheme. The scheme was formulated in those conditions. Similarly, in continuation G.O.Ms.No.512 was issued on 09.03.2002 wherein it is mentioned that the W.P.No.13927 of 1999 was withdrawn in order to facilitate the modification of the G.O. When it comes to the present G.O.Ms.No.23, dated 13.05.2020 it is clear that the institutions had absolutely no role to play and did not even give a representation or other data before the decision was taken. No such exercise was undertaken in the present case. This is another serious flaw. The State for its own reasons and without involving the stakeholders took a decision to reduce the intake.
This Court is of the opinion that while the power to regulate and control the intermediate education is available it should be exercised for strong and cogent reasons, which must be visible from the record. The decision making process must always be transparent and above board. It should be informed with reasons.
The mere fact that some of the institutions are being run in urban apartments does not mean that all the private 21 colleges (1843) should be painted with the same brush. Some may even have requisite infrastructure, while some may not have the infrastructure. Therefore, treating the unequals as equals in the opinion of this Court violates Article 14. All are classified together and painted with the same brush. It is in the opinion of this Court the second flaw in this G.O. As mentioned earlier the reason why the State did not exercise its power as per the extant rules in taking action against the institutions which do not comply with the norms is not spelt out anywhere in the counter affidavit is absolutelysilent on this. The number of colleges or institutions which are being run in urban apartments is not spelt out to enable this Court to appreciate the submissions. The State with all its power at its command could not furnish the requisite data which would enable this Court to appreciate how many colleges are being run in "urban" apartments and to ascertain if there is any discernable difference or a ground for differentiation.
In the light of the submissions made and after considering the material this Court finds that the decision making process suffers from the vice of non-application of mind. Absolutely no data appears to have been considered before coming to this conclusion. Virtually nothing is placed before this Court to enable this Court to understand the reasons for the formation of this opinion or to appreciate the decision making process.
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Apart from this it is also stated that RMSA and the CBSE provided a maximum class room strength of 40, but the learned senior counsel for petitioner states that the CBSE while prescribing a limit of 40 students per class does not fix an upper limit by the CBSE. No material is placed before this Court to appreciate these submissions. A reference is made to the National Building Code and a shortage of 7,158 Sq.ft., of space. This is also not satisfactorily explained. If there is a shortage why no action is taken as per the rules etc., is also not clear. The counter affidavit that is filed in this case merely relies upon G.O.Ms.No.23, G.O.Ms.No.12 and G.O.Ms.No.114. Other than that no other reasons are forthcoming. In para 12 of the counter affidavit it is mentioned that a detailed enquiry was conducted but virtually no data is furnished to show how, when and why this inquiry was conducted. It is not clear if the colleges are visited after a notice or a surprise check was conducted. The data,if any, collected by the 3rd and 4th respondents or their recommendations are not furnished to this Court.
Lastly, it is not clear why the private junior colleges are being treated differently from the aided and the Government colleges. In paragraph 14, the risk of carrying various diseases are explained and it is stated that if children sit with close proximity it is stated that the likelihood of contamination is high. How the private colleges are different from the government and aided colleges is not explained. The 23 risk of contamination or infection is the same for all the students wherever they study. The data which would enable the State to distinguish between the private and the aided government colleges is not placed before this Court. As mentioned earlier it is not clear when and how the study was carried out by the Intermediate Board and what were the recommendations made by the Secretary, Board of Intermediate Education.
In addition, Clause (c) at page 2 of the impugned G.O. says that the ceiling of 360 students etc., will not apply to private junior colleges with permanent affiliation subject to availability of infrastructure facilities and staff. This is another grey and subjective area. Permanent affiliation is only granted to colleges that fulfill all the criteria including infrastructure and staff. Rules 6 to 13 of the 1987 Rules (G.O.Ms.No.29, dated 05.02.1987) makes this clear. Making the Clause (c) ceiling inapplicable to private junior colleges with permanent affiliation "subject to infrastructure", is not correct.
Therefore, on an overall consideration for all the submissions the rule position etc., this Court is of the opinion thatthe State did act as required under law and didnotbase its decision on any data, material, information etc. Nothing is filed to support their case, particularly when the same is questioned before this Court. The reasons why only the 24 intake is reduced in the private colleges in urban areas / urban apartments and not to others is not explained. No data is furnished or details given to explain the difference.
No reasonsare forthcoming as to how the State came to conclusion that colleges are being run in "urban apartments". The number of colleges which are being run in such urban apartments and the reasons why no action was taken as per the powers available is not explained. In fact, it is pertinent to note that it is not explained by the State how the reduction of strength per classroom or fixation of the ceiling would help to clear the malady of the "establishment of colleges in urban apartments".As per this Court the solution to this issue is to ban the use of "urban apartments as colleges" and not the reduction of the strength of the class. The problem that is highlighted i.e., "urban apartments" is not actually solved by this G.O. The State should have considered the fact that there are no failures in current 10th class examination. This year, due to the Covid, every student has been declared as passed. There are no failures at all in the qualifying examination. In the affidavit it is clearly spelt out that approximately 6.5 lakh students have passed the examination, whereas the total number of seats available in the intermediate education is only 5,19,956 seats prior to the reduction. If the seats are reduced the fate of these students, who are all declared 25 passed will be left hanging in the midair. With a memo some additional documents are filed by the State. Included in this is an unsigned "NOTE" saying that 7,42,780 seats are available. The total number of colleges said to be available are 3,704 (3497+208). If 160 seats are the upper limit per college the total seats are 5,92,642 (3704 x 160). If every college has 9 sections the seats will be 360 x 3704, which is 13,33,440. The details of the available classes / additional classes etc., are not discernible from this.
Last but not the least the reason for discontinuing the existing pattern which existed from 2002-03 till date has not been explained. The suddenness of the decisionwill also cause loss to the institutions, and to the staff and others who depend on the institutions for their survival. The legitimate expectation of the institutions; the human aspect viz., the effect onthe students and also the people who work for these colleges should have been kept inmind by the State, which is the parenspatriae.
Therefore, for all these reasons this Court is of the opinion that the impugned G.O. has to set aside and the petitioners are entitled to relief as prayed for. in the opinion of this Court the decision making process is not clear / transparent. It is not supported by clear and cogent data. Hence, it has to be termed as 'arbitrary'.
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It is made clear that this order will not come in the way of the State taking a fresh look at the issue by proceeding strictly according to the available rules and regulations and coming to a conclusion on the same.The State can take action as per the law against the institutions that do not fulfil the norms. It is hoped that an in-depth study is carried out and action is taken as per the prevailing rules and regulations since it is the future of the young students and indirectly the future of the State and the Nation that hinges on this decision. India is how an intellectual and economic super power in the League of Nations due to our bright engineers / scientists / employees. Hence, any decision that touches this aspect even remotely should be taken very carefully. Any new procedure should be published widely in all media well before start of the academic year.
With the above observations, the Writ Petitions are allowed. There shall be no order as to costs.
Consequently, the Miscellaneous Applications pending, if any, in these Writ Petitions shall stand closed.
__________________________ D.V.S.S.SOMAYAJULU, J Date:24.12.2020.
Note: Issue CC by Monday i.e. 28.12.2020 B/o Ssv