Rayalaseema Degree Colleges ... vs The State Of Andhra Pradesh
2021 Latest Caselaw 4951 AP

    IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
                                  AND
         HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY


       W.P. (PIL) No.214 of 2021 and W.P.No.23662 of 2021
                 (Proceedings through physical mode)

W.P.(PIL).No.214 of 2021

Mala Mahanadu Aikya Vedika AP
Represented by its
State President Sri Gurram Ramarao
                                                           .. Petitioner
      Versus

The State of Andhra Pradesh
Represented by its Special Chief Secretary,
Higher Education Department,
Secretariat, Tullur and 2 others.

                                                     ..   Respondents

W.P.No.23662 of 2021

Rayalaseema Degree Colleges Association Represented by its President G.Venkata Reddy .. Petitioner Versus

The State of Andhra Pradesh Represented by its Special Chief Secretary, Higher Education Department, Secretariat, Tullur and 1 other.

                                                     ..   Respondents



Counsel for the Petitioner    :
(W.P.(PIL).No.214 of 2021)          Ms.Sodum Anvesha

(W.P.No.23662 of 2021)              Sri M.Srivijay

Counsel for respondents       :     Learned Government Pleader
                                    For Higher Education
                                                             CJ and MSM,J
                                      wp (pil)_214_2021 and wp_23662_2021


                          COMMON ORDER
                            Dt.03.12.2021
(Per M.Satyanarayana Murthy, J)

These two petitions are filed under Article 226 of the

Constitution of India to issue Writ of Mandamus declaring the action

of respondent No.1 in issuing G.O.Ms.No.55 Higher Education

(CE.A2) Department dated 07.10.2021 whereby the rules pertaining to

the admission into B-Category seats for various undergraduate

courses in the State have been revised for the academic year

2021-22 without even taking into the consideration the plight of

majority number of unaided Degree Colleges insisting all the colleges

to fill up the seats with 30 % of the management quota instead of

affording such concession to the management to fill up those seats

with convener quota in exercise of their choice and leaving the

management quota to the respective institutions by misinterpreting

Sections 3 and 15 of Andhra Pradesh Educational Institutions

(Regulation of Admissions and Prohibition of Capitation Fee) Act,

1983 (for short "Act No.5 of 1983") as illegal, unreasonable,

unwarranted and violative of Article 14, 19 (1) (g) and 300-A of the

Constitution of India, so also provisions of the Act No.5 of 1983 and

the rules framed thereunder and opposed to the new Education Policy

announced by the Government of India in the recent past and set

aside the same. Consequently, direct the respondent No.2 to fill up

the 30 percent management quota seats by the private unaided

Degree Colleges in the State and further direct respondent No.2 not to

interfere in any manner with the prerogative of the managements of

the private degree colleges as regards admissions into Undergraduate

Course in the management quota i.e. 30% seats.

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

Though an additional ground is raised in W.P.(PIL) No.214 of

2021, as the relief claimed in both the petition is identical, we find

that it is expedient to decide both these petitions by common order.

The petitioner in W.P.No.23662 of 2021 is an Association

known as Rayalaseema Degree Colleges Association, represented by

its President G.Venkata Reddy. Whereas, the petitioner in

W.P.(PIL).No.214 of 2021 is Mala Mahanadu Aikya Vedika A.P.,

represented by its President Gurram Ramarao. Thus, the petitioners

in both the petitions are Associations, registered under the Societies

Registration Act.

The degree colleges in Rayalaseema region and other regions

throughout Andhra Pradesh offering undergraduate courses in the

stream of Science, Commerce and Arts, and catering the educational

needs of all the students strictly adhering to the rules and regulations

being framed by respondent Nos.1 and 2 without any laxity at any

point of time. The Government issued G.O.Ms.No.55 Higher

Education (CE.A2) Department dated 07.10.2021 after

commencement of online admissions and just before the allotment of

seats, and the ratio 70:30 has been fixed. As the admissions and

intake of the students is being done by following the statutory

guidelines of respondent No.2 - State Council for High Education

which is empowered for granting the permission to the Degree

Colleges to run the Institutions, there was absolutely no necessity to

issue the impugned G.O. to fill the up the seats in the ratio of 70:30

that too just before the allotment of seats into various degree colleges.

It is further contended that there are number of small unaided

Degree Colleges in the State, which cannot afford to fill up the 30%

management quota. Hence, it is imperative for the authorities to CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

leave the choice of filling up the 30% under the management quota

rather than insisting to fill the same through convener quota. Thus, it

is incumbent on the authorities that the seats to be filled under the

Management quota have to be left open for the respective colleges.

Already various unaided Degree Colleges have undertaken

extensive exercise to furnish the information/ details and documents

as required by law and after the students have made online

application and just before the allotments of the seats, the impugned

G.O. was issued detrimental to the interest of Degree Colleges,

thereby depriving them to exercise their option in the matter of

selection. The authorities are also aware of the fact that after

grappling for over 1 ½ years with the pandemic situation created by

Covid-19, in the recent past, the process of online admissions for the

degree colleges has started and the allotment of seats is nearing to

completion. At this stage, respondent No.1 started insisting for 70:30

ratio in the matter of admission is absolutely uncalled for and

unwarranted.

The ratio of distributing the seats in 70:30 has no scientific

parameter and the respondent authorities cannot apply the same

ratio to all the Colleges in the State. Since 30% seats are left over to

the management as Management Quota, the authorities should

provide option to the Managements of choosing the ratio of their own.

The convener cannot transgress into the management quota and

usurp the prerogative of the unaided private college management as

regards the admissions in the management quota. If the management

is not in position to fill up the 30% seats under Management quota,

the Convener should fill the said 30% seats also under Convener

quota with the consent of the management.

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

It is contended that since the admission process was

completed, seats allocated and classes are commenced, the issue of

impugned G.O. is a serious illegality and the same is unreasonable,

arbitrary, requested to grant relief as stated supra.

The petitioner in W.P.No.23662 of 2021 also field additional

affidavit raising a specific contention that the impugned rules

ex-facie complementary to the Rules contained in G.O.Ms.No.34,

dated 15.10.2020. Particularly Rule 3 of the Andhra Pradesh Private

Degree Colleges (Admission of Students into Category - B Seats) Rules

2021 (for short "Rules 2021") provides for method of admission for

category B seats and the said Rule has divided the seats in the

unaided private degree colleges into category A (convener quota seats)

and category B (management quota seats). Thus, Rule 3 (iii) has laid

down that category A seats shall be 70% of the sanctioned intake of

seats in each course/programme offered by the institute which shall

be filled with eligible candidates as per the degree online admission

Rules 2020 (Rules contained in G.O.Ms.No.34, dated 15.10.2020).

Further, Rule 3 (iv) has provided that category B seats shall be

30% of the total intake of seats in each course/programme offered by

the institute, which shall be open for admission to all the eligible

candidates on merit basis including those candidates belonging to

other states/Union territories in India. Rule 3 (iv) (c) has laid down

that admission to Category B seats shall also be made by the

convener (admissions) through a single window system along with

category A seats i.e., convener quota seats through online web based

admission counselling. Rule 3 (v) has laid down that the convener

(admission) shall handover the vacate category B seats if any to the

institute concerned after conducting all phases of the counselling.

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

Therefore, the sum and substance of the impugned Rules 2021 is that

though there is a reservation of 30% of the sanctioned intake seats as

management quota, the management of the degree colleges is

precluded from either issuing admission notification or filling up the

said management quota seats of 30% as per its discretion (subject to

merit). Thus, Rule 3 of the Rules 2021 has deprived the

managements of unaided private degree colleges from making any

admissions to seats conferring power on the convener to make

admissions to the category A seats as well as category B seats,

thereby Rule 3 is arbitrary, irrational and violative of Articles 14 and

19 of the Constitution of India.

It is further contended that creation of two compartments i.e.,

70% as convener quota and 30% as management quota is nothing but

irrationally empowering the convener to fill up the management quota

also and there is no justification much less rationale in allowing the

convener to fill up the management quota and restrain the

management of the unaided private degree colleges from issuing any

admission notification and receiving applications on their own. Thus,

the impugned Rule has virtually made the convener as the exclusive

authority to admit students into category A seats as well as category

B seats which itself is arbitrary, discriminatory and irrational.

When the unaided private degree colleges are recognised and

affiliated to the concerned university, the parent Act i.e., Act No.5 of

1983 only prohibits collection of capitation fees and profiteering in the

matter of admissions. The Act does not envisage the management

quota seats to be filled up by the convener, particularly in the

absence of any common entrance test as regards the degree courses CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

which are also called as under-graduate courses. Thus the impugned

Rule does not suggest any reason or rhyme for deprivation of the

prerogative/privilege of the managements of unaided private degree

colleges as regards filling up of the management quota seats are

concerned. Strangely the impugned Rule envisages the convener

handing over the vacant category B seats to the respective unaided

private degree colleges. The managements of the private degree

colleges cannot be deprived of their right to fill the management quota

seats and confine themselves to the unfilled category B seats after the

attempt is made by the convener. Further, the Rules do not indicate

any rationale or scientific reason to confer power on the convener to

fill up both category A and category B seats when category B seats are

captioned as "management quota seats". It is settled law that a

classification made by the State must be based on an intelligible

criteria with a particular object which is sought to be achieved by

such classification. (Vide: Ram Krishna Dalmia v. Justice S.R.

Tendolkar1 and D.S.Nakara v. Union of India2). In other words the

very classification of the category A seats and Category B seats is lost

its importance when the convener is exclusively allowed to fill up all

the seats. Thus, in any view of the matter, the impugned Rule is

arbitrary, irrational and unconstitutional a part from the fact that the

impugned rule is not in conformity with the scheme of parent Act.

It is further contended that in fact para 7 of G.O.Ms.No.55,

dated 07.10.2021 recognises that the decision of introducing 30% of

the seats under category B will not affect the poor students belonging

to the Rural part of the State and it further states that it will provide

an impetus to private unaided degree colleges desirous of providing

AIR 1958 SC 538

AIR 1983 SC 130 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

quality education and thereby meet the standards for accreditation,

the leverage provided in terms of collection of fee up to 3 times the fee

fixed by the Commission for admissions under management quota

will facilitate enhancing the standard of education provided in these

institutions through development of infrastructure and other

amenities. Keeping this in view, the government has considered the

recommendations of the Commission to introduce 30% seats under

category B in private unaided degree colleges. Thus, the preamble

contained in paragraph No.7 in G.O.Ms.No.55, dated 07.10.2021 is

completely destroyed and neutralized by Rule 3 which disables the

private unaided college managements to fill up the management quota

i.e., category B seats. Thus, the impugned Rule is liable to be

declared as invalid and unconstitutional.

In W.P. (PIL).No.214 of 2021 the petitioner raised few additional

grounds in addition to the grounds urged in W.P.No.23662 of 2021.

The specific additional ground is that depriving the students admitted

in Category - B seats to enjoy the benefits of Government schemes

like Jagananna Vidya Deevena (RTF), Jagananna Vasathi Deevena

(MTF) etc., is illegal and arbitrary. Such deprivation like Engineering

and Medical students is denuding the students to prosecute college

education.

It is further contended that the impugned Government Order is

against the interest of the students belonging to the Scheduled Caste

community inasmuch as when there are several vacant seats in

different colleges, the conduct of online admission is absolutely

unwarranted. Further, the Supreme Court in "T.M.A.Pai CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

Foundation v. State of Karnataka3" case had categorically dealt

with the aspect of fixation of 70:30 ratio in the matter of admissions

and it was held that such a ratio has to be fixed purely based on the

local needs i.e. taking into consideration the number of students

belonging to various castes. Furthermore, the number of students

belonging to the Scheduled Caste community are very low in the

State, the Rules framed through the impugned G.O. and the ratio of

70:30 cannot be made applicable to them. Therefore, the impugned

Government Order is illegal, arbitrary and requested to set aside the

same more particularly Rule 3 (iv) (h) besides various other clauses as

pleaded in the writ petition.

Respondent No.1 filed counter along with vacate stay petition

I.A.No.03 of 2021. Respondent No.2 also filed separate counter

reiterating the contentions urged in the counter filed by respondent

No.1

Respondent No.1 admitted about issue of impugned

G.O.Ms.No.55 dated 07.10.2021 while contending that the said G.O.

is in pari materia or identical to that of the G.O.Ms. Nos. 66 and 67,

dated 12.03.2012, which deal with online admissions of Category B

seats of Management quota. In fact, the said G.Os were questioned in

a batch of writ petitions filed by engineering colleges and a Division

Bench of erstwhile Hon'ble High Court of Andhra Pradesh upheld the

same with few modifications. Therefore, it is submitted that the

subject matter under challenge is covered by the judgment in W.P.

No. 27777 of 2012 and batch dated 20.08.2013. On this ground alone

the writ petition is liable to be dismissed.

AIR 2003 SC 355 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

It is further contended that post bifurcation, the Government of

Andhra Pradesh has issued a similar G.O.Ms. No. 48 Higher

Education (EC) Department dated 04.09.2021 for EAPCET which is

being implemented in order to conduct admissions in a fair,

transparent and in a non- exploitative manner for category B seats of

Management quota. As there needs to be a uniform policy for all

courses, be it professional or general, the Government came up with

the G.O.Ms.No.55 Higher Education (CE.A2) Department dated

07.10.2021, wherein seat sharing of 70% under Convener quota and

30% under Management quota was evolved, in order to achieve the

same objective as per the dicta laid down by the Court. The relevant

paras from judgment in W.P. No.27777 of 2012 and batch are

extracted in the counter. But, it is need less to extract the findings in

W.P.No.27777 of 2012 at this stage, and they will be taken into

consideration while deciding the issue.

The managements of certain colleges filed W.P No. 374 of 2020

and W.P No.21136 of 2021 sought for introduction of Management

quota in UG online admissions. Hence in this background of the

matter, the petitioners associations cannot have a policy for

themselves. Therefore, respondent No.1 Government has come out

with a uniform policy by issuing G.O Ms. No. 55 which is impugned

herein carving out 30% of Management quota in Degree Colleges in

the state of Andhra Pradesh in tune with other Higher Education

courses. The crucial fact that the Convener quota of seats, i.e.,

Category-A itself are not being filled in toto in majority of Degree

Colleges and 30% Category-B quota is now apportioned as per the

dicta laid down by the Apex Court in "P.A. Inamdar v. State of CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

Maharashtra4", which is the right of the Management of the Colleges

to fill up Category-B seats on their own, transparently without giving

go-bye to merit. In fact, reservation is not applied for Category-B seats

and the right to admit students in Category-B is the right given

exclusively to the Management of Colleges as per the said judgment.

In order to curtail collection of capitation fee while admitting

management quota of Category B seats, this online procedure has

been evolved, which has been upheld by this Court. Therefore, the

question of usurping the power of management of colleges to admit

students of their choice is not taken away in this whole process and

there is no interference by the authorities as alleged by the

petitioners. Accordingly the rules are framed and G.O.MS. No. 55

dated 07.10.2021 issued by respondent No.1 which cannot be treated

as violative of Articles 14, 19 (1) (g) and 300A of Constitution of India

as contented by the petitioners.

The respondents also furnished relevant data regarding

percentage of admissions made by Degree Colleges under the control

of various Universities in the State for academic year 2020-21

through online admission, which is as follows:

S.No. University Name 0%-69%              70-79% 80-89% 90%-100%
1     Acharya            98                 19      7      17
      Nagarjuna
      University

      University

      University

      B.R.Ambedkar
      University

      University



    AIR 2005 SC 3226
                                                               CJ and MSM,J
                                        wp (pil)_214_2021 and wp_23662_2021


       University

       Krishnadevaraya
       University

       Venkateswara
       University

       Simhapuri
       University

       University

Out of the 1021 Degree Colleges, the number of Degree Colleges

which made less than 70% admissions are 743 colleges. Hence the

question of filling up all seats in these colleges does not arise, since

there is no demand for the courses run by them as they lack proper

infrastructural and instructional facilities to cater to the need of

student community.

The Government of Andhra Pradesh has stipulated mandatory

accreditation of all Higher Education institutions vide G.O.Rt.No.13

HE (UE) Department dated 02.02.2021 in the next three years as only

1% of the Private colleges are accredited currently. Thus, the Private

Unaided Degree Colleges are required to improve their instructional

and infrastructure facilities and therefore these colleges have to make

sufficient investment for the same for furtherance of education and to

improve quality. Hence Category-B seats which is in vogue for

admission into professional colleges are introduced as an incentive to

enable these colleges to reach the benchmark for accreditation, as per

representations made by some of the college managements and a writ

petition is filed with regard to right to have some percentage of seats

under management quota in Degree Colleges. It is also a fact that

80% of Private Unaided Degree Colleges exist in rural areas in Andhra

Pradesh. In fact, 72.77% of the total number of Private Unaided CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

Degree Colleges, majority of which are located in rural areas have

made less than 70% admissions as per online admission data of

academic year 2020-21. In order to provide an impetus to Private

Unaided Degree Colleges desirous of providing quality education and

thereby meet the standards of accreditation, the leverage provided in

terms of collection of upto 3 times the time fee fixed by A.P.Higher

Education Regulatory and Monitoring Commission (APHER&MC) for

admissions made under Management quota will facilitate the

standard of education provided in these institutions through

development of infrastructure and other amenities.

The respondents also questioned right of the petitioners to

maintain the writ petition under Article 226 of the Constitution of

India. Unless, the bonafides are proved by the petitioners, the writ

petitions cannot be allowed and liable to be dismissed in limine.

The respondents denied each and every allegation raised by the

petitioners, but finally raised a specific contention that admission

notification under Category-B management quota has to be issued

after the allotment is made under Category A under Phase-I.

Thereafter, the leftover seats in Category-A and Category-B will be

handed over to the respective college managements to be filled on

their own under spot admissions. None of the contentions raised by

the petitioners would infringe the right of any individual or class as a

whole. The Government Order was issued exercising power conferred

on the Government under Sections 3 and 15 of the Andhra Pradesh

Educational Institutions (Regulation of Admissions and Prohibition of

Capitation Fee) Act, 1983 only to benefit the merit students and

enable the private educational institutions to develop with the fee to CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

be collected at 3 times over the fee fixed by the APHER&MC for

qualitative education and to maintain transparency. Hence, there are

no merits in the case of the petitioners. It is specifically contended

that the hidden agenda of the petitioners - Associations is to

reimbursement of fee for all seats filled under both the categories.

Hence, the writ petition is not maintainable in view the hidden

challenge of the petitioners. On this ground also, the petitions are

liable to be dismissed.

One of the major contentions of the respondents is that the

issue relating to disentitlement of Scheduled Caste and Scheduled

Tribe students who are admitted in Category-B seats to claim benefits

of State Schemes is covered by the judgment in W.P.No.27777 of 2012

and the same cannot be reopened by the Bench of same strength. On

that ground also, the writ petitions are liable to be dismissed,

requested to dismiss the writ petitions.

During hearing, Sri Vedual Venkata Ramana, learned senior

counsel limited his argument to the legality of filling up of 30% quota

seats under B-category by the Convener on the ground that there is

no rationale behind the rules and violative of Article 14 of the

Constitution; it is vitiated by manifest arbitrariness. It is further

contended that in the absence of any material as to any malpractice

committed by the private colleges, their right to admit students

establishing private educational institutions cannot be taken away

and any rule which takes away the right of the private colleges would

amount to violation of fundamental right guaranteed under Article 19

of the Constitution of India. The Member Secretary of APHER&MC did

not afford any opportunity before making such proposal to the CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

Government for issue of those guidelines exercising power under

Section 3 and 15 of the Andhra Pradesh Educational Institutions

(Regulation of Admissions and Prohibition of Capitation Fee) Act,

1983. On account of the impugned Government Order, the

managements of private educational institutions are the persons

seriously affected. When no notice was given to the private college

managements, who are stakeholders, the impugned rules are violative

of principles of natural justice apart from arbitrariness. On this

ground also Rule 3 of the Rules, 2021 is liable to be struck down,

requested to issue a direction as claimed in the writ petitions.

Sri P.Veera Reddy, learned senior counsel representing the

advocate on record Ms.Sodum Anvesha while reiterating the

contentions urged by learned senior counsel Sri Vedula Venkata

Ramana, raised another ground that on account of Rule 3 (iv) (h) of

the Rules, 2021, the members of the Scheduled Caste and Schedule

Tribe community are being deprived of benefits of State schemes like

Jagananna Vidya Deevena (RTF), Jagananna Vasathi Deevena (MTF)

etc. though they are eligible for such schemes based on their

economic and social backwardness. Such deprivation seriously affects

the students belonging to Scheduled Castes and Schedule Tribes to

prosecute their studies being the members of poor families. Unless,

Rule 3 (iv) (h) of the Rules 2021 is declared as illegal and void, the

eligible students belonging to Schedule Caste and Schedule Tribe

cannot prosecute their future studies, who secured admission in B-

Category (management quota) and their future will become bleak,

requested to set aside the same.

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

Learned counsel for the respondents supported the action of the

State while drawing the attention of this Court to the findings

recorded in W.P.No.27777 of 2012. On the strength of the same

findings, learned counsel for the respondents requested to dismiss the

writ petition.

Considering rival contentions, perusing the material available

on record, the points need be answered by this Court are as follows:

(1) Whether Rule 3 (iv) of the Rules 2021 based on any rationale? If not, whether taking over admissions of Category-B Seats by the Convener himself is hit by manifest arbitrariness? Consequently, Rule 3 of the G.O.Ms.No.55 dated 07.10.2021 is liable to be set aside as it is vioaltive of Article 14 and 19 of the Constitution of India?

(2) Whether depriving the students belonging to Scheduled Castes and Scheduled Tribes, who are admitted in Category-B seats, from enjoying the benefits of State welfare schemes is arbitrary and hit by Article 14 of the Constitution of India?

P O I N T No.1:

The rules are framed by exercising power under Section 3 and

15 of the Act No.5 of 1983 which deals with regularisation of

admissions into educational institutions. According to Section 3 of the

Act No.5 of 1983, subject to such rules as may be made in this behalf,

admission into educational institutions shall be made either on the

basis of the marks obtained in the qualifying examination or on the

basis of the ranking assigned in the entrance test conducted by such

authority and in such manner as may be prescribed.

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

Thus, the admission into educational institutions is always

subject to such rules as may be made by the Government in regard to

reservation of seats to the members belonging to Scheduled Castes,

Scheduled Tribes and Backward Classes and other categories of

students as may be notified by the Government.

The petitioner in W.P.No.23662 of 2021 is an association of

private educational institutions, formed for the benefit of private

educational institutions. The 'Educational institution' means a

college, a school imparting education up to and inclusive of tenth

class or other institution by whatever name called, whether managed

by Government, private body, local authority or University and

carrying on the activity of imparting education therein, whether

technical or otherwise, and includes a Polytechnic, Industrial Training

Institute and a Teachers' Training Institute, but does not include a

tutorial institution. Thus, the definition of "educational institution"

covered every institution. The "private educational institution" is

defined under the Section 2 (35) of the Andhra Pradesh Education

Act, 1982, which is as follows:

"(35)"private institution" means an institution imparting education or training, established and administered or maintained by any body of persons, and recognised as educational institution by the Government, and includes a college, a special institution and a minority educational institution, but does not include an educational institution -

(a) established and administered or maintained by the Central Government or the State Government or any local authority;

(b) established and administered by any University established by law ; or

(c) giving, providing or imparting only religious instruction, but not any other instruction"

The petitioner association was formed for the benefit of private

educational institutions as defined under Section 2 (35) of the Andhra

Pradesh Education Act, 1982 and by virtue of the impugned

G.O.Ms.No.55 dated 07.10.2021, the right of the members of the CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

association to admit students under Category-B seats is totally taken

away without any rationale behind it and such rule is manifestly,

arbitrary according to the contention of the learned counsel for the

petitioner.

Undisputedly, the rules are framed by exercising power under

Section 3 and 15 of the Act and it is a subordinate legislation passed

by the Government in exercise of the power conferred on it. The

validity of subordinate legislation can be examined by this Court. If it

is violative of fundamental right of citizens or lacks legislative

competency to pass such subordinate legislation, the Court can

interfere and set aside such subordinate legislation.

The issue regarding classification of seats as Convener quota

and Management quota at the rate of 70:30 is already decided by

co-ordinating bench of the High Court of Andhra Pradesh in

W.P.No.27777 of 2012. Hence, the issue cannot be re-opened by this

Court. Therefore, we are in concurrence with the judgment of

co-ordinating bench regarding classification of convener quota and

management quota at the rate of 70:30, while examining the legality

of other clauses.

In "State of Tamil Nadu v. P. Krishnamoorthy5", the Apex

Court after adverting to the relevant case law on the subject, laid

down the parameters of judicial review of subordinate legislation

generally thus:

"There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds:

(2006) 4 SCC 517 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

(a) Lack of legislative competence to make the subordinate legislation.

(b) Violation of fundamental rights guaranteed under the Constitution of India.

(c) Violation of any provision of the Constitution of India.

(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

(e) Repugnancy to the laws of the land, that is, any enactment.

(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).

In the present case, the challenge to the rules is under clause (f)

referred above i.e. manifest arbitrariness or unreasonableness.

The Court while considering the validity of a subordinate

legislation, will have to consider the nature, object and scheme of the

enabling Act, and also the area over which power has been delegated

under the Act and then decide whether the subordinate legislation

conforms to the parent statute. Where a Rule is directly inconsistent

with a mandatory provision of the statute, then, of course, the task of

the Court is simple and easy. Therefore, keeping in view the law laid

down by the Apex Court and reiterated in "Cellular Operators

Association of India v. Telecom Regulatory Authority of India6",

this Court has to examine the validity of subordinate legislation,

which is under challenge on the alleged ground of manifest

arbitrariness/unreasonableness.

The petitioner in W.P.No.23662 of 2021 is an association

fighting for the rights of private educational institutions and those

educational institutions were established by the private management

having control over the entire institutions including admissions,

earlier. By exercising power under Section 3 and 15 of the Act, the

State wanted to have control over the admissions in under graduate

(2016) 7 SCC 703 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

courses (non-technical also) made this subordinate legislation on the

pretext that the private educational institutions abusing their power

without considering the merit, admitting the students collecting

higher amount of fee, thereby some of the students are being deprived

of good education.

At this stage, it is necessary to advert to G.O.Ms.No.55 dated

07.10.2021. A bare look at the G.O.Ms.No.55 dated 07.10.2021, the

reason for framing these rules is the recommendation made by the

Member-Secretary, APHER & MC, but the recommendation made by

the Member-Secretary, APHER & MC is not available on record.

However, based on such recommendation, total intake of seats of

private educational institutions are divided into 70%:30%

under A and B categories respectively. Consequently, category-A seats

i.e. 70% will be filled by Convener, 30% will be filled by the

management, which is popularly known as „management quota‟. By

virtue of this G.O., private managements have no right to notify even

category-B seats and admit the students under Category -B.

Convener (admissions) means Convener of Admissions

nominated by competent authority for each year of admissions under

the Andhra Pradesh Online Admission (for admission of the students

into undergraduate courses in Arts, Science, Social Sciences,

Commerce, Management, Computer Applications, Social work etc.,

including Honours) Rules, 2020 issued vide G.O.Ms.No.34, HE (CE)

Department, dated 15.10.2020 and as amended from time to time.

But the same convener is undertaking the process of admissions into

„management quota‟ also in view of the rules. Rule 3 deals with

method of admission for Category-B seats, which is as follows:

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

3. Method of admission for Category-B seats:

(i) All the seats to be allotted for admission of candidates, under the rules notified in G.O.Ms.No.34, Higher Education (CE) Department, dt:15/10/2020, into each course/program offered by an Institute shall be classified as follows:

a. Category-A seats (Convenor Quota Seats) b. Category-B seats (Management Quota Seats)

(ii) The total number of candidates to be admitted to any course/program offered by an Institute shall not exceed the limits prescribed by the concerned affiliating University from time to time.

(iii) The Category-A seats shall be 70% of sanctioned intake of seats in each course / program offered by the Institute/which shall be filled with eligible candidates as per the rules prescribed in the Degree Online Admissions Rules 2020.

(iv) The Category-B seats shall be 30% of the total intake of seats in each course/program offered by the Institute, which shall be open for admission to all the eligible candidates on merit basis including those candidates belonging to other States/Union Territories of India

a) These seats shall be filled with eligible candidates, as per rules 3 to 7 under the Degree Online Admissions Rules 2020 or as per the procedure notified by the Government from time to time.

b) The Institute shall not issue any notification and receive the applications on their own. Notification shall be issued by the Convener (Admissions).

c) Admissions for Category-B seats shall also be made by the Convener (Admissions) through a single window system along with Category-A seats i.e., Convener Quota seats through online web-based admission counseling.

d) Convener(Admissions) shall notify the cut off dates for each stage of admissions.

e) Each Institute is hereby permitted to fix tuition fee for Category-B seats to a maximum of 3 times of the tuition fee as fixed by the APHER&MC for Category-A seats of the respective course/program offered by the respective Institute. The fee so fixed by the Institute within the above specified limit separately for each course/program shall be informed to the Convener(Admissions).

f) The Institute shall inform the seats available under Category-B seats for each course/program offered by the Institute to the Convener(Admissions).

g) Accordingly, the Convener (Admissions) shall notify the number of Category-B seats and tuition fee for each course/program offered by the Institute.

h) Candidates admitted under Category-B shall not be eligible for any of the Government schemes such as Jagananna Vidya Deevena (RTF), Jagananna Vasathi Deevena (MTF) etc.,

i) Candidates shall apply/register separately for both Category-A and Category-B seats.

j) Candidates securing a seat under Category-B quota can apply for Category-A seats in subsequent rounds of counseling.

(v) The Convener (Admissions) shall handover the vacant Category-B seats, if any to the Institute concerned after conducting all phases of the counseling.

(vi) The Institute shall fill, on merit basis, such vacant Category-B seats handed over by the Convener(Admissions) in each course/program CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

offered by the Institute. The vacant Category-B seats in each course/program shall be filled with eligible candidates through institutional spot admission ensuring merit and transparency as prescribed in rules 3 to 7, 9, 11 and 12 under the Degree Online Admissions Rules 2020 or as per the procedure notified by the Government from time to time.

(vii) The Institute shall obtain ratification from Convener (Admissions) for all such admissions.

(viii) The Convener (Admissions) shall prepare the final list of candidates, admitted course/program-wise and Institute- wise and send the same to the concerned Institute and their affiliating University.

(ix) All candidates registered for online web based admission counseling shall upload copies of the certificates in the web portal which shall be verified by the designated verification officer. However, the Institute concerned shall verify the original certificates of candidates admitted to the institutions at the time of reporting to the Institute.

(x) Any complaint/appeal against the selection shall be made to the Andhra Pradesh Higher Education Regulatory and Monitoring Commission (APHER&MC).

(xi) The managements shall comply with the above instructions and failure in implementing the same shall entail actions as per the relevant Acts and Rules in force.

Thus, the entire control over the admissions into Category-B

seats i.e. management quota was taken over by the Government by

virtue of these rules.

In view of the specific plea raised by the petitioners about the

manifest arbitrariness and unreasonableness, it is necessary to

examine the factual issues based on the counter filed by the

respondents.

Respondent No.2 filed a detailed counter with details of

admissions in the educational institutions in the State. At the cost of

repetition, the table showing the details of admission is extracted

hereunder,

S.No. University Name 0%-69% 70-79% 80-89% 90%-100%

University

University

University

University

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

University

University

University

University

In 743 colleges, admissions are less than 70% for the year

2020-21. Hence, the question of filling up all seats in these colleges

does not arise, since there is no demand for the courses run by them

as they lack proper infrastructural and instructional facilities to cater

to the need of student community.

This judicial admission in the counter of respondent Nos.1 and

2 is suffice to conclude that the educational institutions under the

control of various universities in the State are not able to fill 70%

seats in their colleges during last year i.e. equivalent to convener

quota. The colleges where admissions are less than 70% are 743,

70%-79% are 109, 80%-89% are 67, 90%-100% are 66 as per the

details furnished in the table extracted above.

In view of information furnished by respondents, in almost all

institutions, they are unable to fill the seats due to lack of demand for

the courses run by them, as they allegedly lack proper infrastructural

and instructional facilities. Now, by virtue of these rules, 70% seats

were allotted to „convener quota‟ and 30% to „management quota‟,

that too, entire process to fill-up all seats is by the convener alone. In

those circumstances, the question of filling category-B seats by 743

colleges, whose admissions are less than 70% does not arise, thereby,

the question of collection 3 times fee higher than the fee fixed by

APHER &MC does not arise. Similarly, colleges which filled 70 to 79%

are 109 and at best, they may fill 10% in management quota leaving CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

20% without admissions. Likewise, other colleges also. Total, colleges

are 985. Out of 985 colleges, majority of the educational institutions

are unable to fill even one seat under category-B.

Even according to the allegations made in the paragraph No.12

of the counter filed by respondent No.1, the State has stipulated

mandatory accreditation of all Higher Education institutions vide

G.O.Rt.No.13 HE (UE) Department dated 02.02.2021 in the next three

years, as only 1% of the Private colleges are accredited currently. For

accreditation, the Private Unaided Degree Colleges are required to

improve their instructional and infrastructure facilities and therefore

these colleges have to make sufficient investment for the same for

furtherance of education and to improve quality. Hence Category-B

seats which is in vogue for admission into professional colleges are

introduced as an incentive to enable these colleges to reach the

benchmark for accreditation, as per representations made by some of

the college managements. In the present case, private educational

institutions i.e. major degree colleges are not in a position to fill even

convener quota of 70% as per the information furnished by the

respondents themselves. In such case, question of collecting 3 times

higher fee in addition to the fee fixed by APHER&MC does not arise

and also the question of improving their infrastructural and

instructional facilities to get accreditation with the universities is

impossible for them. Similarly, those educational institutions, who are

able to fill 79% of intake, which is inclusive of convener and

management quota of 10% may also not be in a position to improve

their infrastructural or instructional facilities to meet the guideliens

fixed by the State vide G.O.Rt.No.13 HE (UE) Department dated

02.02.2021. At best, 133 (67+66) colleges, where admissions CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

are 80-89% and 90-100% may be in a position to improve their

infrastructural or instructional facilities by collecting higher fee for

the management quota up to three times of the fee fixed by the

APHER&MC, which are minimum in the State. The fact situation

pleaded by respondents is clear that the intention of the State is to

shutdown all private educational institutions imparting education in

undergraduate courses to various students in the State.

Undisputedly, major part of colleges are in rural areas, where

rural students are being accommodated in those colleges. Due to lack

of facilities, admissions were not at least upto 70% covering convener

quota in 743 colleges, most of them are located in rural areas. In

those circumstances, the Managements will have no option except to

close the institutions subject to compliance of various provisions of

the Education Act, governing management of private educational

institutions. Even it is difficult for them to meet the daily expenses i.e.

for maintenance, salaries etc. Hence, the idea behind the issue of the

Rules 2021 appears to close down the private educational institutions

in the rural areas disabling them to maintain their institutions

meeting the expenditure and by improving their infrastructural or

instructional facilities to accredit their institutions as per the

guidelines issued in G.O.Rt.No.13 HE (UE) Department dated

02.02.2021.

The respondents, though, stated reasons for enacting such

rules fixing 70% and 30% to the convener and management, it is

contrary to the fact situation prevailing in the State as per table

mentioned in the counter filed by both the respondents. Absolutely,

there is no reason for dividing 70% and 30% for both convener and

management quota when the seats under convener quota are not CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

being filled in 743 colleges in the State of Andhra Pradesh as

mentioned in the table. Therefore, such division of seats and taking

power to fill all the seats by the convener himself both under convener

and management quota by issuing notification by convener himself,

preventing private educational institutions to issue such notification

is nothing but arbitrary exercise to deprive the private college

managements to run their institutions and taking over the entire

education system under the control of State, indirectly.

As discussed above, in view of the principles laid down by the

Apex Court in "State of Tamil Nadu v. P. Krishnamoorthy" and

"Cellular Operators Association of India v. Telecom Regulatory

Authority of India" (referred supra), this Court can exercise its

power to interfere with the subordinate legislation and set aside the

same if it is found manifestly arbitrary or unreasonableness.

What is "manifestly arbitrariness" or "unreasonableness" are

not defined anywhere. Under the broad head "manifestly arbitrary",

and "unreasonable restrictions" learned Counsel argued that without

there being any fault on the part of the educational institutions, such

restriction was imposed, the same is contrary to any norm of law or

justice and contended that it is violative of Article 14 of the

Constitution of India, as the act of respondents totally depriving the

educational institutions meeting the standards for accreditation by

improving infrastructural and instructional facilities, thereby such act

can be said to be manifestly arbitrary and unreasonableness.

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

What is „reasonableness‟ came up before the Apex Court in

"the Lord Krishna Sugar Mills Ltd. v. Union of India7", wherein it

is held as follows:

"It is, however, contended that though one can look at the surrounding circumstances, it is not open to the Court to examine other laws on the subject, unless those laws be incorporated by reference. In our opinion, this is a fallacious argument. The Court in judging the reasonableness of a law, will necessarily see, not only the surrounding circumstances but all contemporaneous legislation passed as part of a single scheme. The reasonableness of the restriction and not of the law has to be found out, and if restriction is under one law but countervailing advantages are created by another law passed as part of the same legislative plan, the Court should not refuse to take that other law into account."

The countervailing advantage provided by APHER&MC to collect

three times higher fee fixed by it while filling up category-B seats by

private educational institutions, restricting collection of fee to the

minimum fixed by APHER&MC for convener quota. When the

convener is unable to fill all the seats as per the information

furnished by respondent Nos.1 and 2 in their counter during last

year, question of admitting students under the management quota

through convener and collection of fee three times above the fee fixed

by APHER&MC does not arise, such restriction is unreasonable.

The test of "manifest arbitrariness" is well explained in two

judgments of the Apex Court. In "Khoday Distilleries Ltd. v. State

of Karnataka8", the Apex Court held as follows:

"13. It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the Appellants, the Rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here Under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive

[1960] 1 SCR 39

(1996) 10 SCC 304 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power."

(Emphasis supplied)

In "Indian Express Newspapers (Bombay) (P) Ltd. v. Union of

India9", the Apex Court is of the view that a piece of subordinate

legislation does not carry the same degree of immunity which is

enjoyed by a statute passed by a competent legislature. A subordinate

legislation may be questioned Under Article 14 on the ground that it

is unreasonable; 'unreasonable not in the sense of not being

reasonable, but in the sense that it is manifestly arbitrary'. Drawing a

comparison between the law in England and in India, the Court

further observed that in England the Judges would say, 'Parliament

never intended the authority to make such Rules; they are

unreasonable and ultra vires'. In India, arbitrariness is not a separate

ground since it will come within the embargo of Article 14 of the

Constitution. But subordinate legislation must be so arbitrary that it

could not be said to be in conformity with the statute or that it

offends Article 14 of the Constitution.

Also, in "Sharma Transport v. State of A.P.10", the Apex

Court held as follows:

"25. ... The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone."

(1985) 1 SCC 641

(2002) 2 SCC 188 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

(Emphasis supplied)

What is manifestly arbitrary is obviously unreasonable and

being contrary to the Rule of law, would violate Article 14. Further,

there is an apparent contradiction in the three-Judge Bench decision

in "State of A.P. v. McDowell and Co.11", where it is held that a

constitutional challenge can succeed on the ground that a law is

"disproportionate, excessive or unreasonable", yet such challenge

would fail on the very ground of the law being "unreasonable,

unnecessary or unwarranted". The arbitrariness doctrine when

applied to legislation obviously would not involve the latter challenge

but would only involve a law being disproportionate, excessive or

otherwise being manifestly unreasonable. All the aforesaid grounds,

therefore, do not seek to differentiate between State action in its

various forms, all of which are interdicted if they fall foul of the

fundamental rights guaranteed to persons and citizens in Part III of

the Constitution.

That legislation can be struck down on the ground of manifest

arbitrariness is no longer open to any doubt, as has been held by this

Court in "Shayara Bano v. Union of India12", , as follows:

"101.... Manifest arbitrariness, therefore, must be something done by the

legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well Under Article 14."

(Emphasis supplied)

(1996) 3 SCC 709

(2017) 9 SCC 1 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

In view of the principles laid down in the above judgments, if

any subordinate legislation is manifestly arbitrary or unreasonable,

the Court can exercise power of judicial review under Article 226 of

the Constitution of India and struck down such legislation.

One of the major contentions of the learned counsel for the

petitioner in W.P.No.23662 of 2021 is that absolutely there is no

rationale behind the issue of Government Order impugned in the writ

petition dividing seats into 70:30 for both convener and management

quota and filling up of management quota by the convener himself

restraining the management to notify the seats earmarked for

management quota. He relied on the judgments of the Supreme Court

in Ram Krishna Dalmia v. Justice S.R. Tendolkar and

D.S.Nakara v. Union of India (referred supra) On the strength of the

principles laid down in the two judgments, he requested to quash the

clause III of the impugned G.O. referred above.

Undoubtedly, there must be a rationale behind the policy

decision taken by the State while enacting the subordinate legislation.

In the instant case, the State, based on the recommendations of

APHER&MC formulated the present subordinate legislation to have

control over the entire educational system including the unaided

private educational institutions and deprive them from managing the

educational institutions so as to meet the standards fixed by the State

for accreditation, but on account of policy adopted by the State and

issue of Rules 2021 under the impugned Government Order, State

totally taken away the entire control over the admissions in the

institutions. Even in the counter, the respondents themselves gave

table showing the percentage of admissions in Degree Colleges during CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

last year. Unfortunately, even the seats equivalent to Convener quota

were not filled up during the last academic year in major institutions.

In such case, question of filling up all management quota seats would

not arise. Further, it is difficult for the educational institutions to

improve their infrastructural and instructional facilities to get

accreditation as per G.O.Rt.No.13 HE (UE) Department dated

02.02.2021l.

In the facts of "Ram Krishna Dalmia v. Justice S.R.

Tendolkar" (referred supra), the principal ground urged in support of

the contention as to the invalidity of the Act and/or the notification is

founded on Article 14 of the Constitution of India. The Apex Court

referred to the judgment in "Budhan Choudhry v. The State of

Bihar13", wherein a Constitution Bench of seven Judges of the Apex

Court explained the true meaning and scope of Article 14 as follows :

"The provisions of Article 14 of the Constitution have come up for discussion before this court in a number of cases, namely, "Chiranjit Lal Choudhuri v. The Union of India14", "The State of Bombay v. F. N. Balsara15", "The State of West Bengal v. Anwar Ali Sarkar 16", "Kathi Raning Rawat v. The State of Saurashtra17".

At the end, the Court concluded that the Article 14 forbids class

legislation, it does not forbid reasonable classification for the

purposes of legislation. In order, however, to pass the test of

permissible classification two conditions must be fulfilled, namely, (i)

that the classification must be founded on an intelligible differentia

which distinguishes persons or things that are grouped together from

others left out of the group and, (ii) that the differentia must have a

1955CriLJ374

[1950]1SCR869

[1951]2SCR682

1952CriLJ510

1952CriLJ805 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

rational relation to the object sought to be achieved by the statute in

question. The classification may be founded on different bases,

namely, geographical, or according to objects or occupations or the

like. What is necessary is that there must be a nexus between the

basis of classification and the object of the Act under consideration. It

is also well established by the decisions of the Apex Court that Article

14 condemns discrimination not only by a substantive law but also by

a law of procedure.

In the said judgment, the Apex Court laid down certain

guidelines, they are as follows:

(i) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the court. In determining the validity or otherwise of such a statute the court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the court finds that the classification satisfies the tests, the court will uphold the validity of the law, as it did in "Chiranjitlal Chowdhri v. The Union of India" (referred supra), "The State of Bombay v. F. N. Balsara" (referred supra), "The State of West Bengal v. Anwar Ali Sarkar" (referred supra) "Kathi Raning Rawat v. The State of Saurashtra" (referred supra)

(ii) A statute may direct its provisions against one individual person or thing or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instance of naked discrimination, as it did in "Ameerunnissa Begum v. Mahboob Begum 18" and "Ramprasad Narain Sahi v. The State of Bihar19".

[1953]4SCR404

[1953]4SCR1129 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

(iii) A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the court will strike down both the law as well as the executive action taken under such law, as it did in "State of West Bengal v. Anwar Ali Sarkar 20", "Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh 21"

(iv) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification, the court will uphold the law as constitutional, as it did in "Kathi Raning Rawat v. The State of Saurashtra"(referred supra).

(v) A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle, it has been held by this Court, e.g., in "Kathi Raning Rawat v. The State of Saurashtra" (referred supra), that in such a case the executive action but not the statute should be condemned as unconstitutional."

Thus, from the guidelines laid down by the Apex Court, the law

is clear that unless a Statute or subordinate legislation passes the

1952CriLJ510

[1954]1SCR803 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

tests laid down by the Apex Court in the judgments (referred supra) it

cannot be validated.

In "D.S.Nakara v. Union of India" (referred supra) the Apex

Court is of the opinion that the though Article 14 forbids class

legislation, it does not forbid reasonable classification for the purpose

of legislation. In order, however, to pass the test of permissible

classification, two conditions must be fulfilled, viz., (i) that the

classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from those

that are left out of the group; and (ii) that that differentia must have a

rational relation to the objects sought to be achieved by the statute in

question. The classification may be founded on differential basis

according to objects sought to be achieved but what is implicit in it is

that there ought to be a nexus i.e., causal connection between the

basis of classification and object of the statute under consideration. It

is equally well settled by the decisions of the Apex Court that Article

14 condemns discrimination not only by a substantive law but also by

a law of procedure. The same is reiterated in "Re. Special Courts

Bill22" restated the settled propositions which emerged from the

judgments of this Court undoubtedly insofar as they were relevant to

the decision on the points arising for consideration in that matter.

Finally, the Hon‟ble Apex Court succinctly held that the

classification must not be arbitrary but must be rational, that is to

say, it must not only be based on some qualities or characteristics

which are to be found in all the persons grouped together and not in

others who are left out but those qualities or characteristics must

[1979]2SCR476 CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

have a reasonable relation to the object of the legislation. In order to

pass the test, two conditions must be fulfilled, namely, (1) that the

classification must be founded on an intelligible differentia which

distinguishes those that are grouped together from others and (2) that

differentia must have a rational relation to the object sought to be

achieved by the Act.

The other facet of Article 14 which must be remembered is that

it eschews arbitrariness in any form. Article 14 has, therefore, not to

be held identical with the doctrine of classification. As was noticed in

"Maneka Gandhi v. Union of India23" in the earliest stages of

evolution of the Constitutional law, Article 14 came to be identified

with the doctrine of classification because the view taken was that

Article 14 forbids discrimination and there will be no discrimination

where the classification making the differentia fulfils the

aforementioned two conditions. However, in "EP. Royappa v. State

of Tamil Nadu24", it was held that the basic principle which informs

both Articles 14 and 16 is equality and inhibition against

discrimination. The Apex Court further observed as under:

"From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."

(Emphasis supplied)

What is arbitrariness is not defined, but in the perspective of

Article 14, the Constitution Bench in "Ajay Hasia v. Khalid Mujib

[1978]2SCR621

(1974)ILLJ172SC CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

Sehravardi25" held that it must, therefore, now be taken to be well

settled that what Article 14 strikes at is arbitrariness because any

action that is arbitrary must necessarily involve negation of equality.

The Court made it explicit that where an act is arbitrary it is implicit

in it that it is un equal both according to political logic and

constitutional law and is, therefore, violative of Article 14. After a

review of large number of decisions bearing on the subject, in "Air

India v. Nargesh Meerza26" the Court formulated propositions

emerging from analysis and examination of earlier decisions. One

such proposition held well established is that Article 14 is certainly

attracted where equals are treated differently without any reasonable

basis. Thus the fundamental principle is that Article 14 forbids class

legislation but permits reasonable classification for the purpose of

legislation which classification must satisfy the twin tests of

classification being founded on an intelligible differentia which

distinguishes persons or things that are grouped together from those

that are left out of the group and that differentia must have a rational

nexus to the object sought to be achieved by the statute in question.

In "D.S.Nakara v. Union of India" (referred supra), having

considered the principles laid down in the above judgments, the

Supreme Court concluded that dividing a homogeneous class, the

classification being not based on any discernible rational principle

and having been found wholly unrelated to the objects sought to be

achieved by grant of liberalised pension and the eligibility criteria

devised being thoroughly arbitrary, we are of the view that the

eligibility for liberalised pension scheme of 'being in service on the

specified date and retiring subsequent to that date' in impugned

(1981)ILLJ103SC

(1981)IILLJ314SC CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

memoranda, violates Article 14 and is unconstitutional and is struck

down.

A reading of the principles laid down in the above judgment, it

is clear that there must be a rationale or nexus between the object

and rules in the subordinate legislation. In "State of Tamil Nadu v.

P. Krishnamoorthy" (referred supra), the Apex Court laid down the

parameters of judicial review of subordinate legislation (referred

supra).

In the instant case, the aim/object of the subordinate

legislation impugned in the writ petition is to give preference to the

merit students so as to improve the educational standards in the

State both in private aided and unaided educational institutions. The

private educational institutions are established by private individuals

under the Andhra Pradesh Education Act, 1982. The Act No.5 of 1983

is enacted to prevent unlawful gain by the private educational

institutions. But, initially, Capitation Fee was banned in Engineering

and Medical colleges etc. Later on account of establishment of

educational institutions in under-graduate level, the State brought

the present legislation impugned in the writ petition to prevent the

malpractices in admissions by the private managements and to give

preference to merit so as to increase the standards of educational

institutions. The object may be laudable, and dividing the seats in the

ratio of 70:30 under convener and management quota may be to some

extent justifiable.

One of the major contentions of the petitioners is that the

Rules, 2021 are contrary to the object mentioned in the impugned

G.O.Ms.No.55 dated 07.10.2021. According to paragraph No.7 of the CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

impugned Government Order, the decision of introducing 30% of

seats under Category-B will not affect the poor students belonging to

rural Andhra Pradesh. However, in order to provide an impetus to

private unaided degree colleges desirous of providing quality

education and thereby meet the standards of accreditation, the

leverage provided in terms of collection of up to 3 times the fee fixed

by APHER&MC for admissions made under Management quota will

facilitate enhancing the standard of education provided in these

institutions through development of infrastructure and other

amenities. But the Rules, 2021 totally depriving the educational

institutions to fill the management quota seats by issuing notification

for admission into category-B seats. Since the Convener has taken up

the entire process of admission even under Category-A and Category-

B seats, as such the Rules are contrary to the object.

When 30% seats are earmarked for management quota under

category-B, taking over admissions by the Convener is not based on

any rationale. More particularly filling up all the admissions in

undergraduate courses by the convener himself is arbitrary for the

reason that when Convener taking up admissions in both Convener

quota and management quota, it is nothing but converting the

management quota into Convener quota. When the Convener is not

able to fill all the seats under Convener quota, the question of filling

seats by the Management does not arise and it is nothing but futile

exercise being undertaken by the management to fill left over seats

under the Management quota.

When once 30% seats are earmarked, issue of notification by

the Convener himself is also not based on any reason.

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

On the other hand, in paragraph No.5 of the counter

respondent No.1 admitted that it is the right of the management of

the colleges to fill up Category-B seats on their own, transparently

without giving a go-bye to merit. (Vide: "P.A. Inamdar v. State of

Maharashtra" (referred supra). The admissions based on principle

laid down in "P.A. Inamdar v. State of Maharashtra" (referred

supra) filling up Category-B seats by Convener is nothing but taking

away right of management. Hence, the contention of the petitioners is

supported by the plea of respondent No.1 in paragraph No.5 of the

counter, based on "P.A. Inamdar v. State of Maharashtra" (referred

supra).

The major contention of the learned Government Pleader for

Higher Education is that the issue in the present writ petitions is

covered by the co-ordinate Bench of the High Court of Andhra

Pradesh in W.P.No.27777 of 2012.

The issue in the said writ petition is classification of seats in

private medical, dental and engineering colleges in both Convener

quota and Management quota reducing NRI quota from 15 to 5%, but

considering the "P.A. Inamdar v. State of Maharashtra" (referred

supra) the co-ordinate Bench of the High Court of Andhra Pradesh in

W.P.No.27777 of 2012 concluded that even under the amended Rule,

the autonomy of the petitioner institutions to make admissions into

Category-B seats remained untouched, however the selection process

is made transparent to enable the competent authority to oversee the

selection process at every stage right from the stage of notifying the

seats till the admissions are made.

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

Finally, it is concluded that in view of the decision in "P.A.

Inamdar v. State of Maharashtra" (referred supra), discretion is left

with the Management not with the Government to reduce quota,

issued the following directions for effective implementation of the

amended Rule 6 (ii).

(i) Apart from making the applications online through the common web portal, the candidates shall be given an option to submit their applications in person at the college of their choice, however one select list shall be prepared and be uploaded in the web portal for verification and validation in terms of the Rule.

(ii) The management of the institution shall be given an option to call upon the selected candidates to appear in person for interview to substantiate their credibility and financial capacity to the satisfaction of the management.

(iii) In the event of the management finding that any of the selected candidates is not suitable for admission, the management shall be at liberty to reject the candidature of such candidates and the reasons should be communicated to the competent authority.

(iv) So far as the option given to the candidates to opt for any number of colleges/courses is concerned, the A.P. State Council for Higher Education shall have a consultation with the petitioner institutions and work out the modalities so as to prevent multiple blockage of seats and to ensure that the selection process is completed within a timeframe.

In the facts of the above judgment, except Rule 6 (ii), other

clauses were not challenged, only classification of Convener and

Management quota into 70:30 while reducing NRI quota was in issue.

But the Division Bench accepted the convener quota and

management quota at 70:30% as there is a rationale, but modified the

NRI quota. Based on the law laid down in "P.A. Inamdar v. State of

Maharashtra" (referred supra), the Court observed that the right is

vested with the institution to fill Category-B seats. Even in the

counter also, respondents admitted that as per the principle laid CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

down in "P.A. Inamdar v. State of Maharashtra" (referred supra) it

is the right of the educational institutions to fill Category-B seats.

As discussed in earlier paragraphs about unreasonableness, it

is clear that the rules were framed only to deprive the private

educational institutions to manage their institutions, while insisting

to improve their infrastructural and instructional facilities to get

accreditation as per G.O.Rt.No.13 HE (UE) Department dated

02.02.2021l. Indirectly, it amounts to disabling them to run

educational institutions by imposing such conditions fixed by the

State.

At the same time, as per clause (iv) (b) (c) of Rule 3 of the Rules

2021, admissions in category - B shall also be made by the Convener

through single window system and that the institutions shall not

issue any notification and receive applications on their own and such

notification shall be issued by the Convener himself, these clauses are

unreasonable, arbitrary and not based on any rationale.

The fact situation, as discussed above, clearly indicate that the

major part of the educational institutions admitting students in

undergraduate courses are unable to admit 70% of the students,

which is less than 70% convener quota. Even if, any notification is

issued for filling up management quota seats, it is difficult for the

colleges to get any students admitted under management quota. In

such case, issue of notification by the convener himself for filling up

category-B seats is not based on any rationale or reason, thereby

such act of the respondents can be described as manifestly arbitrary.

Therefore, Rule 3 (iv) (b) (c) and 3 (v) of the Rules 2021 are hereby

quashed declaring the rules as unreasonable, manifestly arbitrary CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

and not based on any rationale. Consequently, the said Rule 3 (iv) (b)

(c) and 3 (v) of the Rules 2021 are liable to be set aside. Accordingly,

the point is answered in favour of the petitioners and against the

respondents.

P O I N T No.2:

One of the major contentions raised by Sri P.Veera Reddy,

learned senior counsel for the petitioner in W.P. (PIL) No.214 of 2021,

is that depriving students to enjoy the government benefits such as

Jagananna Vidya Deevena (RTF) and Jagananna Vasathi Deevena

(MTF) is arbitrary, violative of Article 14 of the Constitution of India.

No doubt, the students belonging to Scheduled Castes and

Scheduled Tribes admitted in Category-B seats have to pay three

times fee fixed by APHER&MC as per Rule 3 (iv) (e) of the Rules 2021.

When they are able to pay such higher fee, depriving them to enjoy

the benefits of Jagananna Vidya Deevena (RTF) and Jagananna

Vasathi Deevena (MTF) is arbitrary or not is to be examined by this

Court.

For management quota, the rule of reservation is not applicable

as contended by the respondents in the counter and anyone can get

admission under 30% quota based on their merit. Sometimes, eligible

candidates belonging to Scheduled Castes and Scheduled Tribes may

get admission based on their merit in category-B management quota,

still they are being deprived of enjoying benefits of scheme. The major

contention of the learned senior counsel is that local conditions

prevailing in the area were not taken into consideration while fixing

the quota for both convener and management at the rate of 70%:30% CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

as held in "T.M.A.Pai Foundation v. State of Karnataka" (referred

supra). Most of the colleges are situated in rural areas and no study

was undertaken by the State while passing the Rules 2021, which are

impugned in the writ petition.

The petitioner in W.P. (PIL) No.214 of 2021 challenged Rule 3

(iv) (h) of the Rules, 2021 as it deprives the Scheduled Castes and

Scheduled Tribes students admitted in Category-B seats to enjoy the

benefits of social welfare schemes of the State viz. Jagananna Vidya

Deevena (RTF), Jagananna Vasathi Deevena (MTF) etc. Such clause

denuding the Scheduled Castes and Scheduled Tribes eligible

students to enjoy the social welfare schemes is not based on any

reasonable classification between the eligible students admitted in

Category-A and Category -B, and contended that the Rule 3 (iv) (h) is

illegal.

As discussed in point No.1, subordinate legislation can be set

aside if it is irrational or manifestly arbitrary. Clause (h) of Rule 3 (iv)

of the Rules, 2021 discriminates the eligible students admitted in

Category-A and Category-B and depriving the students, who were

admitted in Category-B to enjoy the benefits of social welfare schemes

of the State. This is not based on any rationale and such deprivation

is nothing but manifestly arbitrary act. Hence, the said Clause (h) of

Rule 3 (iv) of the Rules, 2021 is liable to be set aside.

Learned Government Pleader for Higher Education contended

that the issue is covered by the co-ordinating bench of the High Court

of Andhra Pradesh at Hyderabad in W.P.No.27777 of 2012.

CJ and MSM,J wp (pil)_214_2021 and wp_23662_2021

A close perusal of entire judgment in W.P.No.27777 of 2012, no

such issue was raised before the co-ordinate bench of the High Court

of Andhra Pradesh at Hyderabad. Therefore, the contention of the

learned Government Pleader for Higher Education is hereby rejected

while holding that discrimination of eligible Scheduled Castes and

Scheduled Tribes students admitted in category-B seats is irrational

and manifestly arbitrary and the same is deserves to be set aside.

In view of foregoing discussion, the writ petitions are deserve to

be allowed in part. Accordingly, the point is answered in favour of the

petitioners and against the respondents.

In the result, writ petition (PIL) No.214 of 2021 and writ

petition No.23662 of 2021 are allowed in part declaring Rule 3 (iv) (b)

(c) (h) and 3 (v) of the Andhra Pradesh Private Degree Colleges

(Admission of Students into Category - B Seats) Rules 2021 notified

in G.O.Ms.No.55 Higher Education (CE.A2) Department dated

07.10.2021 as illegal, arbitrary and unreasonable, consequently set

aside the same. The managements of private educational institutions

shall issue notification to fill category - B seats under 30% quota in

their institutions and admit the students in accordance with the

procedure subject to payment of fee fixed by APHER&MC. No costs.

The miscellaneous petitions pending, if any, shall also stand

closed.

PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY,J Ksp