Sri Satyasai Degree College vs State Of Ap
2021 Latest Caselaw 44 AP

THURSDAY, THE SEVENTH DAY OF JANUARY,
TWO THOUSAND AND TWENTY ONE
:PRESENT:
THE HONOURABLE SMT JUSTICE KONGARA VIJAYA LaK

IA Nos. 1 & 2 OF 2021
IN |
WP NO: 374 OF 2021

 

Sri Satyasai Degree College, (Code. No.025) Kasibugga village, Palasa Mandalam,
Srikakulam District, Andhra Pradesh State Represented by its President Kintala Murali
Mohan
Petitioner in IA.Nos 1 & 2 of 2021
(Petitioner in WP.No. 374 of 2021
on the file of High Court)
AND

1. The State of Andhra Pradesh, rep by its Special Chief Secretary, Higher
Education Department Secretariat, Tullur, Velagapudi, Guntur District.

2. The Andhra Pradesh State Counsel! for Higher Education Government of Andhra
Pradesh, rep by its Secretary, Niladri Towers, 6'" Battalian Road, Mangagalriri,
Guntur District, Andhra Pradesh-522503

...Respondents
(Respondents in-do-)

Counsel for the Petitioner in both Petitions:SRI VIJAY MATHUKUMILLI
Counsel for the Respondents in both petitions :GP for Higher Education,

IA. No. 1 of 2021: Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in W.P., the High Court may be pleased to direct the
respondents not to issue Admission Notification as per the proceedings of the 'st
Respondent vide G.O.MS. No. 34, Higher Education (CE) Department, dated
15.10.2020, pending WP No. 374 of 2021, on the file of the High Court.

IA. No. 2 of 2021: Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in W.P., the High Court may be pleased to suspend the
proceedings of the 1 respondent vide G.O.Ms. No. 34, Higher Education (CE)
Department, dated 15-10-2020, pending WP No. 374 of 2021, on the file of the High
Court.

The court while directing issue of notice to the Respondents herein to show
cause as to why this application should not be complied with, made the following
order.(The receipt of this order will be deemed to be the receipt of notice in the case).

ORDER:

HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI I.A.Nos.1 and 2 of 2021 in Writ Petition No.374 of 2021 Order:

The Writ Petition is filed to declare the proceedings of the first respondent vide G.O.Ms.No.34, Higher Education (CE) Department, dated 15.10.2020, contemplating to introduce online admission process for admission into undergraduate courses offered by the Degree Colleges in the State, without providing management quota, on the basis of percentage of marks obtained in intermediate Course instead of conducting common entrance test as illegal and arbitrary.

IA No.1 of 2021 is filed to direct the respondents not to issue admission notification as per the proceedings of the first respondent vide G.O.Ms.No.34, Higher Education (CE) Department, dated 15.10.2020.

IA No.2 of 2021 is filed seeking to suspend the proceedings of the first respondent vide G.O.Ms.No.34, Higher Education (CE) Department, dated 15.10.2020, wherein online admission process has been introduced for admission into various undergraduate courses in various branches in various colleges including Government and private.

The main contention of the learned counsel for the petitioner is that the impugned GO does not speak about the management quota which is a right accrued to the managements as per the orders of the Hon'ble Supreme Court in T.M.A. Pai Foundation v. State of Karnataka'. He submits that the said case applies to the petitioner's institution and in support of the said contention he relies upon the

following paragraphs of the said judgment.

' (2002) 8 SCC 481

the learned counsel for the petitioner, the issue with regard to non- allotment of management quota seats in the impugned GO has not been decided in the said Writ Petition.

The petitioners before the Hon'ble Supreme Court in TMA Pai Foundation's case (supra) are running professional colleges. Certain questions were framed in the said case and were answered accordingly. One of the questions which is framed in the said case, wherein the paragraph relied upon by the learned counsel for the petitioner is extracted, is as under.

"3. In case of private institutions, can there be

Government regulations and, if so, to what extent?".

While dealing with the said issue, colleges were divided into private unaided professional colleges and private aided professional colleges (non-minority). The paragraph which is relied upon by the petitioner is under the head private unaided professional colleges. In the said paragraph it is categorically stated that a certain percentage of seats can be reserved in the regulations that can be framed for admission by the management out of those students who have passed common entrance test held by itself or by the State and rest of the seats may be filled up on the basis of Counselling by the State agency. The said observation is not a direction. But, by the present GO admissions will be made through online, basing on the marks obtained in the qualifying examination and no common entrance test is held either by the State, University or by the College. While stating so, it is also stated in the very same paragraph that the same principles may be applied to other non-professional but unaided educational institutions. The said paragraph only dealt with the

regulations that can be framed and can be applied to non-professional

(supra) and Islamic Academy of Education's case (supra) were clarified in P.A. Inamdar v. State of Maharashtra®, and that as a committee has already been constituted and as the petitioner is not a professional college, the above mentioned paragraphs in the said decisions relied upon by the petitioner do not apply to the facts of the present case. He further submits that the seat sharing between the management and convener is necessitated where there is a convener quota and management quota and now there is no difference in the fee structure prescribed and there is no entrance examination. He submits the same GO is challenged in W.P.No.22104 of 2020 and the said Writ Petition was dismissed and that the colleges association addressed a letter to the Government on 15.10.2020 stating that they do not want management quota at all and that all seats would be filled up basing on the merit of the candidates. He also submits that the show cause notice is also issued to the petitioner. Finally, he submits that even assuming for a moment that the impugned GO is cancelled or withdrawn, there will not be any entrance examination and there will not be any seat sharing between the convener and management and prays to dismiss the Writ Petition.

The online admission process was introduced through the impugned GO, which was challenged by a student in W.P.No.22104 of 2020 and the said Writ Petition was dismissed by this Court vide orders dated 24.12.2020 holding that Section 99(1)(b)(xxv) of the A.P. Education Act, 1982 gives the power to the State Government to make regulations for admissions and the word "admission" includes both online

admissions and regular manual admissions. However, as contended by

* (2005) 6 SCC 537

the Management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the state or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including

the welfare of students and teachers."

He also relies upon paragraph 235 of the judgment reported in Islamic Academy of Education v. State of Karnataka'.

"235. So far as the year 2003-2004 is concerned, time is running out as the outer time limit for admission is fast approaching or has gone. To meet the urgent situation without going into the issues involved in the various petitions/application?), we direct that the seats be filled up by the institution and the State Governments in the ratio 50:50. However, if by any interim order, this Court has permitted any institution to fill up a higher percentage of seats and the seats have been filled up accordingly, the same shall not be disturbed. It is made clear that due to the lime constraint this arrangement has been made, without deciding the contentious issue involved in various pending

cases."

He also contends that dismissal of W.P.No.22104 of 2020 does not operate as a bar to file the present Writ Petition as the grounds raised in the present Writ Petition are totally different.

Learned Additional Advocate-General appearing for the respondents submits that the petitioner is not a professional college and that the notification for admissions is also issued subsequent to filing of the Writ Petition and that the admissions will commence from tomorrow.

He further submits that the judgments in T.M.A. Pai Foundation's case

? (2003) 6 SCC 697

: A eee

"Private Unaided Professional Colleges

67. We now come to the regulations that can be framed

relating to private unaided professional institutions.

68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, be permissible for the university or the government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the state agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the government according to the local needs and different percentage can be fixed for minority unaided and non- minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz., graduation and post-

graduation non-professional colleges or institutes.

69. In such professional unaided institutions, the Management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/University subject to adoption of a rational procedure

of selection. A rational fee structure should be adopted by

colleges also, but the main issue which was considered in the said case is with. regard to professional minority and non-minority educational institutions. It is also observed that a rational fee structure has to be adopted by the management which would not entitle the management to charge a capitation fee. Basing on this observation, learned counsel for the petitioner submits that the rational fee structure is not stipulated vide the same GO. As the issue that was dealt with in the said case was with regard to convener quota and management quota, such an observation was made, which is not relevant to the facts of the present case.

Further, the paragraph relied upon by the learned counsel for the petitioner in Islamic Academy of Education's case (supra) deals with seats to be filled up by the State Government and the Institution in the ratio of 50 : 50. The said judgment also deals with the professional colleges and the convener and the management quota which is not the case in the impugned GO.

Learned Additional Advocate-General submits that the Hon'ble Supreme Court in PA Inamdar's case (supra) only clarified the law laid down in TMA Pai Foundation's case (supra) and Islamic Academy of Education's case (supra), which does not apply to a non-professional institution.

Clause 11 of the impugned GO deals with fee for undergraduate courses. It says that the fee will be prescribed by the Government on the recommendation of the AP Higher Education Regulatory and Monitoring Commission. Prima facie, as the petitioner is a degree college and not a professional college, the judgments relied upon by the learned counsel for the petitioner will not come to its aid. Even though the

impugned GO is issued in October 2020, the present Writ Petition is filed

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on 29.12.2020 and it is stated by both the counsel that the notification for admission is already issued and that the students are being allotted. As the notification is already issued the prayer that is sought in IA No.1 of 2021 becomes infructuous, hence the same is liable to be dismissed.

So far as IA No.2 of 2021 ts concerned, the suspension of the impugned GO is sought. As it is stated that the admissions will commence from tomorrow pursuant to the notification that is issued for admissions, and as prima facie case is not made out, I see no reason to suspend the impugned GO.

Accordingly, IA Nos.1 and 2 of 2021 are dismissed.

Sd/- A. Surya Prakasa Ra Oo DEPUTY ,)REGISTRAR

TRUE COPY// SECTION OFFICER

For.

. The Special Chief Secretary, Higher Education Department, State of A-P.,

Secretariat, Tullur, Velagapudi, Guntur District.

The Secretary, Andhra Pradesh State Counsel for Higher Education Government of Andhra Pradesh, Niladri- Towers, 6" Battalian Road, Mangagalriri, Guntur District, Andhra Pradesh-522503 (Addressee Nos 1 & 2 by RPAD)

Two CCs to Addl. Advocate General, High Court of A.P., at Amaravati (OUT) Two CCs to GP for Higher Education, High Court of A.P., at Amaravati (OUT) One CC to SRI. Sri Vijay Mathukumilli Advocate [OPUC]

One spare copy

HIGH COURT

KVL,J

DATED:07/01/2021

ORDER

IA. Nos 1 & 2 of 2021 IN WP.No.374 of 2021

ACCORDINGLY, IA NOS 1 AND 2 OF 2021 ARE DISMISSED

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