Andhra Pradesh High Court - Amravati
M/S Almomin College Of Education, vs The Registrar, on 18 June, 2021
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
WRIT PETITION No.18703 of 2020;
W.P.Nos.1438, 2104, 2716, 2734, 2756, 2772, 2788, 2800, 2845, 3848,
3851, 4875, 5147, 5148, 5149, 5391, 5486, 41968, 42252, 43589, 43885,
44474, 45113, 45342, 46368, 46973, 43900, 43921, 44053, 44125,
44523, 44646, 44659, 45097, 45099, 45133, 45284, 45338, 45615,
46329, 46375, 46524, 46863, of 2018;
W.P.Nos.1565, 2587 of 2019;
W.P.No.8023 of 2021;
W.P. No.21502 of 2011;
W.P.Nos. 26708, 26815, 36495 of 2014;
W.P.No.16159 of 2015;
W.P.Nos.29596, 29602, 33225, 34720, 37635, 37645, 37665, 37909,
38071,42955, 43001 of 2017;
W.P.No.29783 of 2018;
W.P.Nos. 8506, 13948, 17028, 20077 of 2019;
W.P.No.5600 of 2020;
W.P.No.5338, 7479, 9299 of 2021;
% Dated 18.06.2021
#W.P.No.18703 OF 2020 & 71 other writ petitions
M/s. Al-Momin College of Education
Kandukur Revenue Division
East Palem Road, Podili
Prakasam District ..... Petitioners
Vs.
$
The Registrar,
Acharya Nagarjuna University
Guntur, Andhra Pradesh ..Respondents
JUDGMENT PRONOUNCED ON: 18.06.2021
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Whether Reporters of Local newspapers
may be allowed to see the Judgments?
Whether the copies of judgment may be marked to Law
Reporters/Journals
Whether Their Ladyship/Lordship wish to see the fair
copy of the Judgment?
MSM,J
W.P.No.18703 of 2020 & batch
* THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
+ WRIT PETITION No.18703 of 2020;
W.P.Nos.1438, 2104, 2716, 2734, 2756, 2772, 2788, 2800, 2845, 3848,
3851, 4875, 5147, 5148, 5149, 5391, 5486, 41968, 42252, 43589, 43885,
44474, 45113, 45342, 46368, 46973, 43900, 43921, 44053, 44125,
44523, 44646, 44659, 45097, 45099, 45133, 45284, 45338, 45615,
46329, 46375, 46524, 46863, of 2018;
W.P.Nos.1565, 2587 of 2019;
W.P.No.8023 of 2021;
W.P. No.21502 of 2011;
W.P.Nos. 26708, 26815, 36495 of 2014;
W.P.No.16159 of 2015;
W.P.Nos.29596, 29602, 33225, 34720, 37635, 37645, 37665, 37909,
38071,42955, 43001 of 2017;
W.P.No.29783 of 2018;
W.P.Nos. 8506, 13948, 17028, 20077 of 2019;
W.P.No.5600 of 2020;
W.P.No.5338, 7479, 9299 of 2021;
% Dated 18.06.2021
#W.P.No.18703 OF 2020 & 71 other writ petitions
M/s. Al-Momin College of Education
Kandukur Revenue Division
East Palem Road, Podili
Prakasam District ..... Petitioners
Vs.
$
The Registrar,
Acharya Nagarjuna University
Guntur, Andhra Pradesh ..Respondents
! Counsel for the petitioner :
1. Sri P. Pandu Ranga Reddy
2. Sri B. Chandrasen Reddy
3. Sri D. Kasim Saheb
4. Smt. Y. Anupama Devi
5. Sri Y. Nagi Reddy
6. Sri K. Gani Reddy
^ Counsel for the respondent :
1. Learned Government Pleader for School Education
2. Learned Standing Counsel for Acharya Nagarjuna University
3. Learned Standing Counsel for Yogi Vemana University
4. Learned Standing Counsel for Krishna University
<GIST:
MSM,J
W.P.No.18703 of 2020 & batch
> HEAD NOTE:
? Cases referred
1. AIR 1985 SC 218
2. (2003) 6 SCC 697
3. (2016) 6 ALT 477 (DB)
4. AIR 1956 SC 60
5. (1977) 2 SCC 148
6. AIR 1933 SC 1082
7. 1991 SCR (3) 102
8. AIR 1993 SC 892
9. 1986 (4) SCC 632
10. 1995 ALL.L.J. 534
11. (1996) 9 SCC 309
12. (2004) 2 SCC 150
13. (2008) 2 SCC 280
14. 2017 (9) ADJ 251
15. AIR 1952 SC 12
16. AIR 1951 SC 41
17. AIR 1977 SC 276
18. (2002) 1 SCC 33
19. (1981) 1 SCC 568
20. (2005) 5 SCC 181
21. (1992) 2 SCC 343
22. (2002) 2 SCC 333
23. (2019) 7 SCC 172
24. (2010) 3 ALD 113
25. (2012) 6 ALD 495
26. WP Nos.7873 of 2015 & batch dated 03.07.2015
27. (2016) 6 ALT 477 (DB)
28. 16 CAL. 2D 516
29. AIR 1963 SC 786
30. (2016) 2 SCC 779
31. 1996 (1) MLJ 32
32. 1985 (1) SCR 216
33. 2004 (1) LLJ 1061 SC
MSM,J
W.P.No.18703 of 2020 & batch
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION No.18703 of 2020;
W.P.Nos.1438, 2104, 2716, 2734, 2756, 2772, 2788, 2800, 2845, 3848,
3851, 4875, 5147, 5148, 5149, 5391, 5486, 41968, 42252, 43589, 43885,
44474, 45113, 45342, 46368, 46973, 43900, 43921, 44053, 44125,
44523, 44646, 44659, 45097, 45099, 45133, 45284, 45338, 45615,
46329, 46375, 46524, 46863, of 2018;
W.P.Nos.1565, 2587 of 2019;
W.P.No.8023 of 2021;
W.P. No.21502 of 2011;
W.P.Nos. 26708, 26815, 36495 of 2014;
W.P.No.16159 of 2015;
W.P.Nos.29596, 29602, 33225, 34720, 37635, 37645, 37665, 37909,
38071,42955, 43001 of 2017;
W.P.No.29783 of 2018;
W.P.Nos. 8506, 13948, 17028, 20077 of 2019;
W.P.No.5600 of 2020;
W.P.No.5338, 7479, 9299 of 2021;
COMMON ORDER:
All these writ petitions are filed under Article 226 of the
Constitution of India by various Higher Educational Institutions; either
aided or unaided, questioning the action of the respondents/universities
viz., Acharya Nagarjuna University, Yogi Vemana University and Krishna
University in demanding the petitioners/institutions for payment of
university service fee in addition to the fee fixed by erstwhile Andhra
Pradesh Admission and Fee Regulatory Committee (AFRC), now, Andhra
Pradesh Admission and Fee Regulatory Committee Andhra Pradesh
Higher Education Regulatory and Monitoring Commission (henceforth
'AP-HERMC) by the universities concerned, as illegal, arbitrary and
violative of provisions of Andhra Pradesh Educational Institutions
(Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983
(for short 'Capitation Fee Act, 1983') and consequently direct the
respondents not to insist for payment of any service fee or any other fee;
MSM,J
W.P.No.18703 of 2020 & batch
without there being any approval and orders from HERMC and without
following due process of law.
Various petitioners/Higher Educational Institutions/Colleges, are
running different courses for different academic years and the additional
fee collected by the respondents/Universities is shown in Column No.4,
in addition to the fee fixed by HERMC under different proceedings with
different dates, is shown in the table below.
(1) (2) (3) (4) (5)
Writ Petition Courses Academic Proceedings questioned
University
year
1. 18703/2020 B.Ed 2019-20 Oral demand made by university for
collection of Rs.970/- and Rs.2,500/-
ANU
NO AFRC per student, in addition to the fee
fixed by AFRC.
2. 1438/2018 B.Ed 2017-18 Oral demand of the University Service
Fee of Rs.990/- per student, in
NO AFRC addition to fee fixed by the committee ANU
for fixation for fee structure in private
unaided professional colleges
3. 2104/2018 B.Ed 2017-18 Proceedings
No.ANU/F&A/FEE/CHARGES/
NO AFRC M.Ed 137/2017 dated 16.08.2017
Demand made by university for
collection of Rs.625/- per student for
B.Ed course and Rs.1,690/- per
ANU
student for M.Ed course, in addition
to the fee fixed by the committee
established and constituted by the
Government for regulating and
admissions fixing the fee to be
charged from the candidates
4. 2716/2018 B.Ed 2017-18 Oral demand to pay an amount of
Rs.925/- per student towards
ANU
NO AFRC University Service Fee, in addition to
the fee fixed by AFRC
5. 2734/2018 B.Ed 2017-18 Oral demand to pay an amount of
Rs.925/- per student towards
ANU
NO AFRC University Service Fee, in addition to
the fee fixed by AFRC
6. 2756/2018 B.Ed 2017-18 Oral demand to pay an amount of
Rs.925/- per student towards
ANU
NO AFRC University Service Fee, in addition to
the fee fixed by AFRC
7. 2772/2018 B.Ed 2017-18 Oral demand to pay an amount of
Rs.925/- per student towards
ANU
NO AFRC University Service Fee, in addition to
the fee fixed by AFRC
8. 2788/2018 BED 2017-18 Oral demand to pay an amount of
Rs.925/- towards University Service
ANU
NO AFRC Fee, in addition to the fee fixed by
AFRC
9. 2800/2018 B.Ed 2017-18 Oral demand to pay an amount of
Rs.925/- per student towards
ANU
NO AFRC University Service Fee, in addition to
the fee fixed by AFRC
MSM,J
W.P.No.18703 of 2020 & batch
10. 2845/2018 B.Ed 2017-18 Proceedings dated 16.08.2017
& demanding to pay Registration/ ANU
NO AFRC B.P.Ed recognition/university services fee
11. 3848/2018 B.Ed 2017-18 Oral demand to pay an amount of
Rs.990/- per student towards
NO AFRC University Service Fee, in addition to
ANU
the fee fixed by the committee for
fixation for fee structure in private
unaided professional colleges
12. 3851/2018 B.Ed 2017-18 Oral demand to pay an amount of
Rs.990/- per student towards
NO AFRC University Service Fee, in addition to
ANU
the fee fixed by the committee for
fixation for fee structure in private
unaided professional colleges
13. 4875/2018 B.Ed 2017-18 Oral demand to pay an amount of
Rs.990/- per student towards
NO AFRC University Service Fee, in addition to
ANU
the fee fixed by the committee for
fixation for fee structure in private
unaided professional colleges
14. 5147/2018 B.Ed 2016- Proceedings dated 16.08.2017
M.Ed 2017 demanding to pay Registration/
NO AFRC B.P.Ed recognition/university services fee of
ANU
D.P.Ed 2017- Rs.925/- per student studying
2018 B.Ed & D.P.Ed and Rs.1690/- for
student studying B.P.Ed, M.Ed
15. 5148/2018 B.Ed 2017-18 Proceedings dated 16.08.2017
M.Ed demanding to pay Registration/
NO AFRC recognition/university services fee of
ANU
Rs.925/- per student studying
B.Ed and Rs.1690/- for student
studying M.Ed
16. 5149/2018 B.Ed 2017-18 Proceedings dated 16.08.2017
M.Ed demanding to pay Registration/
NO AFRC recognition/university services fee of
Rs.925/- per student studying
B.Ed and Rs.7610/- towards
Research journal fee in addition to ANU
the fee prescribed under Andhra
Pradesh private aided/unaided
college of education regulation of
admission
17. 5391/2018 B.Ed 2017-18 Proceedings dated 16.08.2017
M.Ed demanding to pay Registration/
NO AFRC B.P.Ed recognition/university services fee of
Rs.925/- per student studying
ANU
B.Ed & B.P.Ed; Rs.1690/- for student
studying M.Ed and Rs.7610/- for
Research Journal Fee, in addition to
the fee fixed by the Committee
18. 5486/2018 B.Ed 2017-18 Proceedings dated 16.08.2017
M.Ed demanding to pay Registration/
NO AFRC B.P.Ed recognition/university services fee of
Rs.925/- per student studying
ANU
B.Ed & B.P.Ed; Rs.1690/- for student
studying M.Ed and Rs.7610/- for
Research Journal Fee, in addition to
the fee fixed by the Committee
19. 41968/2018 B.Ed 2017-18 Proceedings dated 16.08.2017
demanding to pay Registration/ ANU
NO AFRC recognition/university services fee
20. 42252/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017
M.Ed demanding to pay Registration/
ANU
NO AFRC U.G.D.P.E recognition/university services fee
d, B.P.Ed
MSM,J
W.P.No.18703 of 2020 & batch
& M.P.Ed
21. 43589/2018 B.Ed, 2018-19 Proceedings 27.10.2018 demanding
M.Ed to pay Registration/
NO AFRC U.G.D.P.E recognition/university services fee ANU
d, B.P.Ed
& M.P.Ed
22. 43885/2018 B.Ed 2017-18 Proceedings dated 16.08.2017
demanding to pay Registration/
ANU
NO AFRC recognition/university services fee of
Rs.925/- per student
23. 44474/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017 &
M.Ed 27.10.2018, insisting the petitioners
NO AFRC U.G.D.P.E 2018-19 to pay registration/recognition and ANU
d, B.P.Ed university services fee
& M.P.Ed
24. 45113/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017 &
M.Ed 27.10.2018, insisting the petitioners
NO AFRC U.G.D.P.E 2018-19 to pay registration/recognition and
ANU
d, B.P.Ed university services fee
D.P.Ed
& M.P.Ed
25. 45342/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017 &
U.G.D.P.E 27.10.2018, insisting the petitioners
ANU
NO AFRC d, B.P.Ed 2018-19 to pay registration/recognition and
& M.P.Ed university services fee
26. 46368/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017 &
M.Ed, 27.10.2018, insisting the petitioners
NO AFRC U.G.D.P.E 2018-19 to pay registration/recognition and ANU
d, B.P.Ed university services fee
& D.P.Ed
27. 46973/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017 &
U.G.D.P.E 27.10.2018, insisting the petitioners
ANU
NO AFRC d, B.P.Ed 2018-19 to pay registration/recognition and
& M.P.Ed university services fee
28. 43900/2018 B.Ed 2017-18 Proceedings dated 16.08.2017,
insisting the petitioners to pay
ANU
NO AFRC registration/recognition and
university services fee
29. 43921/2018 B.Ed 2018-19 Proceedings dated 27.10.2018
insisting the petitioners to pay
ANU
NO AFRC registration/recognition and
university services fee
30. 44053/2018 B.Ed 2018-19 Proceedings dated 27.10.2018
insisting the petitioners to pay
ANU
NO AFRC registration/recognition and
university services fee
31. 44125/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017 &
M.Ed 27.10.2018, insisting the petitioners
NO AFRC U.G.D.P.E 2018-19 to pay registration/recognition and ANU
d, B.P.Ed university services fee
& M.P.Ed
32. 44523/2018 B.Ed 2018-19 Oral demand of the University Service
Fee of Rs.990/- per student, in ANU
NO AFRC addition to fee fixed by AFRC
33. 44646/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017,
M.Ed insisting the petitioners to pay
NO AFRC U.G.D.P.E registration/recognition and ANU
d, B.P.Ed university services fee
& D.P.Ed
34. 44659/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017 &
M.Ed 27.10.2018, insisting the petitioners
NO AFRC U.G.D.P.E 2018-19 to pay registration/recognition and
ANU
d, B.P.Ed university services fee
& M.P.Ed
35. 45097/2018 B.Ed 2017-18 Oral demand of the University Service
ANU
Fee of Rs.990/- per student, in
MSM,J
W.P.No.18703 of 2020 & batch
NO AFRC addition to fee fixed by AFRC
36. 45099/2018 B.Ed 2018-19 Oral demand of the University Service
Fee of Rs.990/- per student, in ANU
NO AFRC addition to fee fixed by AFRC
37. 45133/2018 B.Ed 2017-18 Proceedings dated 16.08.2017
B.P.Ed demanding to pay Registration/
NO AFRC M.Ed recognition/university services fee of
ANU
Rs.925/- per student studying
B.Ed & B.P.Ed and Rs.1690/- for
student studying M.Ed
38. 45284/2018 B.Ed 2018-19 Oral demand of the University Service
Fee of Rs.990/- per student, in ANU
NO AFRC addition to fee fixed by AFRC
39. 45338/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017 &
M.Ed 27.10.2018, insisting the petitioners
NO AFRC U.G.D.P.E 2018-19 to pay registration/recognition and ANU
d, B.P.Ed university services fee
& M.P.Ed
40. 45615/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017 &
M.Ed 27.10.2018, insisting the petitioners
NO AFRC U.G.D.P.E 2018-19 to pay registration/recognition and ANU
d, B.P.Ed university services fee
& M.P.Ed
41. 46329/2018 B.Ed 2017-18 Oral demand of the University Service
Fee of Rs.2,100/- per student, in
NO AFRC 2018-19 addition to fee fixed by the committee ANU
for fixation for fee structure in private
unaided professional colleges
42. 46375/2018 B.Ed, 2017-18 Proceedings dated 27.10.2018,
M.Ed insisting the petitioners to pay
NO AFRC U.G.D.P.E registration/recognition and
ANU
d, university services fee
B.P.Ed &
D.P.Ed
43. 46524/2018 B.Ed 2017-18 Oral demand of the University Service
Fee of Rs.990/- per student, in
NO AFRC 2018-19 addition to fee fixed by the committee ANU
for fixation for fee structure in private
unaided professional colleges
44. 46863/2018 B.Ed, 2017-18 Proceedings dated 16.08.2017 &
U.G.D.P.E 27.10.2018, insisting the petitioners
ANU
NO AFRC d, B.P.Ed 2018-19 to pay registration/recognition and
& D.P.Ed university services fee
45. 1565/2019 B.Ed, 2016-17 Proceedings 16.07.2016, insisting the
M.Ed petitioners to pay
NO AFRC U.G.D.P.E registration/recognition and ANU
d, B.P.Ed university services fee
& M.P.Ed
46. 2587/2019 B.Pharma 2011-12 Proceedings No.148/ANU/F&A/FEE/
cy CHARGES/2010-2011 dated ANU
NO AFRC 28.04.2011
47. 8023/2021 M.B.A 2020-21 Proceedings dated 14.12.2020,
insisting the petitioners to pay
KU
NO AFRC registration/recognition and
university services fee
48. 21502/2011 B.Ed 2010-11 Proceedings dated 24.09.2010
demanding the petitioners to pay
ANU
NO AFRC admission fee of Rs.2,000/- per
student
49. 26708/2014 L.L.B 2013-14 Lr.No.YUV/CDC/MAT.AFFIN/2014
dated 04.07.2014 demanding to pay
YVU
NO AFRC University Development Fee of
Rs.3,00,000/- for L.L.B
50. 26815/2014 B.Ed 2013-14 Lr.No.YUV/CDC/AFFIN
04.07.2014 demanding to pay
YVU
NO AFRC university development fee of
Rs.750/- per student for B.Ed for the
MSM,J
W.P.No.18703 of 2020 & batch
college
51. 36495/2014 Degree 2014-15 Lr. No. YUV/ADMIN dated
courses 20.02.2014 demanding the
NO AFRC petitioners to collect university
YVU
development fee of Rs.480/- per
student and inter university
tournament fee of Rs.120/-
52. 16159/2015 Degree 2014-15 Lr. No. YUV/ADMIN dated
courses 20.02.2014 demanding the
NO AFRC petitioners to collect university
YVU
development fee of Rs.480/- per
student and inter university
tournament fee of Rs.120/-
53. 29596/2017 Degree 2014-15 Lr. No. YUV/ADMIN dated
courses 20.02.2014 demanding Rs.480/- YVU
NO AFRC towards university development fee
54. 29602/2017 Degree 2014-15 Lr. No. YUV/ADMIN dated
courses 20.02.2014 demanding the
NO AFRC petitioners to collect university
YVU
development fee of Rs.480/- per
student
55. 33225/2017 Degree 2014-15 Lr. No. YUV/ADMIN dated
courses 20.02.2014 demanding the
petitioners to collect university YVU
development fee of Rs.480/- per
student
56. 34720/2017 Degree 2014-15 Lr. No. YUV/ADMIN dated
courses 20.02.2014 demanding the
petitioners to collect university YVU
development fee of Rs.480/- per
student
57. 37635/2017 Degree 2017-18 Proceedings of the 2nd respondent
courses dated 15.06.2017 demanding the
YVU
NO AFRC petitioner to pay University Services
Fee @ Rs.600/- per student
58. 37645/2017 Degree 2017-18 Proceedings of the 2nd respondent
courses dated 15.06.2017 demanding the
YVU
NO AFRC petitioner to pay University Services
Fee @ Rs.600/- per student
59. 37665/2017 Degree 2017-18 Proceedings of the 2nd respondent
courses dated 15.06.2017 demanding the
YVU
NO AFRC petitioner to pay University Services
Fee @ Rs.600/- per student
60. 37909/2017 B.Sc 2017-18 Proceedings Dated 12.09.2017
B.A To pay registration
NO AFRC B.Com fee/affiliation/matriculation/
recognition/late fee/university service
fee/inter university tournament YVU
fee/inter university cultural festival
fee/NSS service fee/ inter college
tournament fee/CDC processing fee
in total of Rs.2500/-
61. 38071/2017 B.Sc 2017-18 Proceedings Dated 12.09.2017
B.Com To pay registration
NO AFRC fee/affiliation/matriculation/
recognition/late fee/university service
fee/inter university tournament YVU
fee/inter university cultural festival
fee/NSS service fee/ inter college
tournament fee/CDC processing fee
in total of Rs.2500/-
62. 42955/2017 Degree 2017-18 Proceedings of the 2nd respondent
Courses dated 15.06.2017 demanding
NO AFRC payment of service fee of Rs.600/- per YVU
student
MSM,J
W.P.No.18703 of 2020 & batch
63. 43001/2017 Degree 2017-18 Proceedings of the 2nd respondent
Courses dated 15.06.2017 demanding
YVU
NO AFRC payment of service fee of Rs.600/- per
student
64. 29783/2018 Degree 2018-19 Proceedings dated 31.07.2018
Courses To pay registration fee/recognition YVU
NO AFRC and university services fee
65. 8506/2019 B.Ed 2015-16 Proceedings Dated 18.02.2019
demanding to pay university services
NO AFRC fee of Rs.805/- per student, in
addition to fee fixed by the committee ANU
for fixation for fee structure in private
unaided professional colleges
66. 13948/2019 Degree 2019-20 Proceedings Dated 19.08.2019
Courses demanding to pay registration
YVU
NO AFRC fee/recognition fee and university
services fee
67. 17028/2019 B.Ed 2017-18 Oral demand of the University service
NO AFRC fee of Rs.820/- per student, in YVU
addition to fee fixed by AFRC
68. 20077/2019 Degree 2019-20 Proceedings dated 05.10.2019,
NO AFRC Courses demanding payment of development
YVU
fee, inter university tournament fee in
addition to the fee fixed by AFRC
69. 5600/2020 B.Pharmac 2018-19 Questioning the proceedings of the
y respondent in not issuing order in
NO AFRC affiliating petitioner institution for the
M.Pharmac ANU
academic 2018-19, while orally
y
demanding to pay university service
fee from the students
70. 5338/2021 B.Ed 2016-17 Proceedings dated 14.12.2020
To demanding registration/recognition/ KU
NO AFRC 2019-20 university services fee
71. 7479/2021 B.Ed 2019-20 Proceedings dated 04.05.2019
NO AFRC insisting the petitioners for payment
KU
of registration/recognition/ university
service fee
72. 9299/2021 B.A 2020-21 Proceedings Dated 07.04.2021
B.Com To pay registration
NO AFRC B.Sc fee/affiliation/matriculation/
recognition/late fee/university service
fee/inter university tournament YV
fee/inter university cultural festival
fee/NSS service fee/ inter college
tournament fee/CDC processing fee
in total of Rs.2500/-
Note: ANU - Acharya Nagarjuna University
YVU - Yogi Vemana University
KU - Krishna University
All educational institutions/petitioners herein are conducting
courses viz., B.Ed, M.Ed, M.Ped, L.L.B, B. Pharmacy, M.Pharmacy, etc.,
as shown in Column No.3 of table, for the last many years. The
institutions have been granted all recognitions, permissions and
affiliations to conduct the above courses after meeting all requirements
MSM,J
W.P.No.18703 of 2020 & batch
and following the procedure laid down as per NCTE norms and after
paying prescribed fee for admission for different academic year. The
respondents/Universities are bound to follow the fee structure fixed by
HERMC for the colleges and cannot demand anything above and beyond
the prescribed fee either from the students or the college management.
The respondents/Universities have no role to play in the matter of
fixation of fee payable by the students admitted under Management
Seats or Convener Seats to the Courses in Higher Educational
Institutions. The students who are prosecuting studies in different
courses in the petitioner/institutions have paid fee fixed by HERMC for
different academic years, but the University is claiming additional
amount, for different academic years, for different courses in addition to
the fee fixed by HERMC and that the respondents are adopting arm-
twisting tactic to pressurize the colleges to collect fee from the students.
It is pertinent to state that, if, any such additional amount is collected,
such an action amounts to collection of capitation fee within the meaning
of Section 2(b) of the Capitation Fee Act, 1983, which is not permitted as
per law. Making such demands from the students at any point of time is
not only contrary to the provisions of law and without any authority,
illegal and unethical. Hence, the petitioners sought the relief as stated
above.
The respondent/Acharya Nagarjuna University filed detailed
counter affidavit in W.P.No.3848 of 2018, raising several contentions
with reference to law, while denying material allegations made in the
affidavit filed along with the writ petition. The other respondent/
Universities viz., Yogi Vemana University, Krishna University adopted the
counter affidavit filed in W.P.No.3848 of 2018.
MSM,J
W.P.No.18703 of 2020 & batch
The first and foremost contention raised by the respondents/
Universities is that, the writ petitions are not maintainable, as the State
is not impleaded as party to the proceedings. It is contended that
Section 5(20) of the A.P. Universities Act, 1991 (for short 'Act, 1991)
conferred power on the University to fix the fee and other charges as may
be prescribed. Section 19(37) of Act, 1991 conferred power on the
Executive Council (the Board of Management) to prescribe the fee to be
charged for the affiliation and recognition of the Colleges. At the same
time, Section 19(12) of Act, 1991, conferred power on the Executive
Council (the Board of Management) to prescribe the fee to be charged for
admission to the examinations, degrees, diplomas and oriental titles of
the University. Section 53 of Act, 1991, permitted the Executive Council
to make Ordinances subject to the provisions of the Act and Statutes and
such Ordinances may provide for (a) the levy of fee in the University and
the Constituent Colleges; (b) the fee to be charged for admission to the
examinations, degrees and diplomas of the University. As per Section 54
of Act, 1991, the Executive Council (Board of Management) shall make
Ordinances. By exercising power under Clause (a) of Section 53 of Act,
1991, the Executive Council made Ordinance 9 in respect of levy of fee
for various courses of study in the University. As per Section 2 of
Ordinance 9 of the University, the Executive Council shall have power to
modify the rates of fee as and when found necessary and/or in
pursuance of relevant orders of the Government of Andhra Pradesh. This
Ordinance was approved by the Executive Council vide Resolution
No.1.16 in the meeting held on15.05.2018 and it is effective from
27.10.2018. The Executive Council of the University at its meeting held
on 17.09.2010 under Item No.5.02 considered the Letter dated
13.09.2010 from Sri B. Suryanarayana, President, Acharya Nagarjuna
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University Private Colleges Management Association, Vijayawada,
requesting for reduction in certain rates of revised fee payable by
affiliated colleges implemented w.e.f. 01.04.2010 as per circular
No.ANU/Affil. Payment of fee/2010-2011 dated 25.06.2010 and also the
concrete proposals for reduction submitted by him. The Executive
Council has resolved that the revised rates of affiliation fee and other
categories of fee payable by affiliated colleges implemented from
01.04.2010 be further revised for certain categories of fee as per the
details shown in the resolution. Accordingly, admission
registration/recognition/university service fee is revised and fixed as
Rs.100/- per year per student from 2010-2011 batch. Further, the
Executive Council has resolved to enhance the fee applicable to affiliated
colleges by 10% every year rounding to the nearest ten rupees. As per
Resolution 4.07 passed by the Executive Council in meeting held on
30.11.2010, the Executive Council has ratified the action taken by the
Vice-Chancellor regarding enhancement of affiliation and other related
fee by 10% every year approved by the Executive Council on 17.09.2010.
Accordingly, the University every year enhances the affiliation fee by 10
per cent by following the Resolution 4.07 of the Executive Council
meeting held on 30-11-2010 and Resolution 5.02 of the Executive
Council of the University at its meeting held on 17.9.2010.
The 1st respondent after having considered the minutes of the
meeting of the Andhra Pradesh Regulatory and Monitoring Commission
(previously AP Admission and Fee Regulatory Committee (HERMC) has
issued G.O.Ms. No. 59, School Education (Training) Department dated
25-07-2017, fixing fee structure for UG D.P.Ed., courses, G.O.Ms.No. 57,
School Education (Training) Department dated 25-07-2017 fixing fee
structure for B.P.Ed., G.O.Ms.No. 58, School Education (Training)
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Department dated 25-07-2017 fixing fee structure for M.P.Ed., courses
and similarly G.O.Ms.No.110, School Education (training) Department,
dated 01-10-2016 fixing fee structure for B.Ed., and G.O.Ms.No. 66,
School Education (Training) Department dated 30-09-2019 fixing fee
structure for M.Ed., and some other GOs issued for Pharmacy courses
also. The Petitioner/Colleges have accepted the above fee structure and
has not made any representation with the Andhra Pradesh Higher
Education Regulatory & Monitoring Commission. The Petitioner College
didn't approach the Hon'ble High Court against the above fee structure.
As such, there is no grievance to the Petitioners/colleges against the
above fee structure. The Govt. of AP, School Education department has
issued G.Os fixing the fee on the recommendations of the erstwhile A.P.
Admission and Fee Regulatory Committee (now, A.P. Higher Education
Regulatory & Monitoring Commission) for the block period from 2016-17
to 2018-19. The fee for the Petitioner College is also fixed in the said
G.O. The Petitioners/Colleges, after having accepted the fee structure
as specified in the above said G.O.Ms.No. 66 and 110, the Petitioner
College has approached the High Court with a request to interfere in the
matter without paying the fee without making the A.P. Higher Education
Regulatory & Monitoring Commission as one of the party respondent to
these petitions and thereby, the petitions are not maintainable.
The University is informing to pay the fee as accepted by the
Petitioner College at the Andhra Pradesh Higher Education Regulatory &
Monitoring Commission, i.e., the fee towards services rendered by the
University, since the Petitioners/Colleges have neither represented any
grievance against the fixation of University Services Fee, etc., in the fee
structure at Andhra Pradesh Higher Education Regulatory & Monitoring
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Commission nor approached the High Court as was done by other
similarly situated Colleges.
The University is not fixing the amount of fee towards services
rendered by the University rather it was as fixed by the Government on
the recommendations of the erstwhile Admission and Fee Regulatory
Commission (HERMC) and now, Andhra Pradesh Higher Education
Regulatory & Monitoring Commission. The fee has to be collected from
each student and be remitted to the University but not from the College
funds. Further, once collected the fee towards common services from the
students, for remitting the same to the University, it is not open to the
colleges to retain the same. The students have paid it for the University,
and, none of the students has raised any grievance in respect of this fee.
No student approached the High Court challenging the collection of
amount. Strangely, the institutions filed the present Writ Petitions
challenging the action of the University in insisting payment of University
service fee. The petitioners are not aggrieved parties because when they
collected fee from the students, they are supposed to remit to the
University as per the proceedings of the University. Even some of the
Colleges are making false statements that they are not collecting the
service fee from the students although it was clearly stated in the
University proceedings to collect the service fee from the students and to
remit the same to the University. Thus, the petitioners/colleges/
educational institutions have no locus standi to maintain the writ
petitions questioning the action of the respondents, since the petitioners
are not the persons aggrieved. On this ground also, requested to dismiss
writ petitions.
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It is further contended that, similar issue came up for
consideration before High Court of Andhra Pradesh at Hyderabad in
W.P.No.7873 of 2015 against Jawaharlal Nehru Technological University,
Hyderabad, questioning the collection of common services fee from them
in relation to the students pursuing Undergraduate and Postgraduate
Engineering Courses in Private Unaided Institutions in the State of
Telangana for the block period 2013-14 to 2015-16. They also challenged
the action of the State in not excluding the Private Autonomous Colleges
from payment of common services fee to the University as fixed under
various Government Orders. The appellants further prayed for a
consequential direction to the University not to collect fee towards
common services. Common order passed in Writ Petition Nos.7873,
9799, 13427, 16267, 16343 and 16576 of 2015 ordered that "If the
concerned institutions have not collected the said amount, the reasons
under which they have not collected have to be informed to the University
and it is for the University to take necessary action in pursuance thereof".
When the matter was carried to the Division Bench, the Division Bench
upheld the Judgment passed by the Single Judge in W.A No.268 of 2016
on 28th July 2016.
It is contended in the counter affidavit that, it is not in dispute that
whole year, the Universities are supposed to have such department/wing
not only for conducting convocation functions but to maintain the entire
record and to see that every student gets degree certificate irrespective of
the fact whether he attends graduation function. The Original Degree fee
collected from each student is for actual issue of original certificate and
may be to cover the expenditure for conducting convocation function. It
may be true that autonomous-colleges conduct examination and may be
rendering some other examination related services but that by itself is
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not sufficient to hold that the University has no role to play or does not
render any examination related services to the autonomous colleges.
Even the other services, the University continues to render to the
autonomous colleges in some or the other form, directly or indirectly,
such as imparting training to teachers, holding meetings, access to
publications, maintaining website etc. Once having collected the fee
towards common services from the students, for remitting the same to
the University, it is not open to the colleges to retain the same. The
students have paid it for the University, and, none of the students has
made any grievance in respect of this fee. That apart, the College, cannot,
under any circumstances, decide whether the University renders any
services and that they are entitled to retain the said amount collected
towards common services to be rendered by the University.
In Amar Nath Om Parkash and Ors. v. State of Punjab and
Ors1, the Supreme Court, after considering somewhat similar
situation, in paragraph-7 observed thus:
7. It is thus well settled by numerous recent decisions of
this Court that the traditional concept in a fee of quid pro
quo is undergoing a transformation and that though the fee
must have relation to the services rendered, or the
advantages conferred, such relation need not be direct, a
mere casual relation may be enough. It is not necessary to
establish that those who pay the fee must receive direct
benefit of the services rendered for which the fee is being
paid. If one who is liable to pay receives general benefit
from the authority levying the fee the element of service
required for collecting fee is satisfied. It is not necessary
that the person liable to pay must receive some special
benefit or advantage for payment of the fee.
Finally, it is contended in the counter affidavit that, even if it is
assumed that some of the services, which University was rendering
before the colleges acquired autonomous status, which now they need
A.I.R. 1985 S.C. 218
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not render that by itself is not justifiable for the colleges to retain
common services fee. In any case, it cannot be stated that the University
does not render any service to the colleges including autonomous
colleges. Whether there is broad and general co-relationship between the
totality of the fee on the one hand, and the totality of the expenses of the
services on the other hand will have to be seen and there need not be an
exact or mathematical correlation between the amount realized as a fee
and the value of the services rendered.
In Islamic Academy of Education and Another vs State of
Karnataka and Others2 the Hon'ble Supreme Court observed that, that
while fixing the fee structure it should be taken into consideration, inter
alia, the salary or remuneration paid to the members of the faculty, other
staff, investments made by the University, infrastructure provided and
plan for future development of the University as also its expansion.
Future planning or improvement of facilities, the Supreme Court stated,
may be provided for. These factors undoubtedly are required to be taken
care of by the University while fixing and demanding fee from the
students through their colleges or the examination authority. It is true
that the University cannot charge anything unreasonable under the guise
of surplus, indirectly or systematically and then claim that they are
established for educational purpose and not for the purposes of profits.
From the facts of the present case, the amount to be remitted to the
University towards common services, by no stretch of imagination, could
be termed as unreasonable and even if it is assumed that the entire
amount of Rs.990/- cannot be accounted by University that by itself
would not amount to unreasonable enrichment.
(2003) 6 SCC 697
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The Division Bench of High Court of Hyderabad for the State of
Telangana and State of Andhra Pradesh in CMR College of Engineering
Technology Kandlakoya v. The Jawaharlal Nehru Technological
University3 observed that, "As it is settled by the Supreme Court, it is
not necessary to establish that those who pay the fee must receive direct
benefit of the services rendered for which the fee is being paid. It is not
necessary that the person liable to pay must receive some special benefit
or advantage for payment of the fee. The students in all colleges
including affiliated to the University, receive several direct or indirect
benefits of the services rendered by the University". It is now well-settled
and accepted proposition of law that the University is entitled to generate
reasonable surplus for development of education and its expansion.
From the facts of the present case, the amount to be remitted to the
University towards common services, by no stretch of imagination, could
be termed as unreasonable and even if it is assumed that the entire
amount of Rs.990/- cannot be accounted by University that by itself
would not amount to unreasonable enrichment.
Finally, it is contended that, the provisions of the A.P. Universities
Act, 1991 and the Ordinance Rules made thereunder and finality of the
determination and consequential proceedings of the Vice-Chancellor
prescribing the service fee, it is binding on all colleges including
autonomous colleges even after acquiring autonomous status to remit
common services fee collected by them. Therefore, the petitioners are not
entitled to claim writ of mandamus, as the petitioners are not vested with
any legal right or they failed to plead and prove vesting of any legal right
and its infringement or invasion, thereby, none of the petitioners are
3 (2016) 6 ALT 477 (DB)
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entitled to claim writ of mandamus and requested to dismiss the writ
petitions.
Considering rival contentions, perusing the material available on
record, the points that need to be answered by this Court in these writ
petitions are as follows:
(1) Whether the petitioners have locus standi to question the action of
the respondents/Universities in collection of service fee, etc., in
addition to the fee fixed by the HERMC?
(2) Whether the petitioners pleaded and proved that the institutions
are vested with any legal right, its infringement or invasion or
threatened infringement or invasion?
(3) Whether collection of service fee by way of recognition/revaluation
by the university is justified, as recommended by HERMC to the
government and notified by the government in various government
orders. If not, whether the action of the respondent No.1 be
declared as illegal and arbitrary?
(4) Whether the writ petitions are maintainable without impleading
the State HERMC and the State which passed government orders
based on the recommendations of HERMC, without claming any
relief to declare various government orders?
Since the respondents questioned the locus standi of the
petitioners/colleges/educational institutions, so also, infringement or
invasion of legal rights of these petitioners, it is appropriate to decide
both the points by common discussion. Hence, both the points are taken
up by common discussion to record findings thereon.
The petitioners are colleges/educational institutions and they are
collecting fee as claimed by the University and recommended by AP-
HERMC and notified by the Government for some years and some years
without any recommendation or notification. The subject matter of
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dispute from the years 2017 onwards and most of the students have
completed their studies in higher education. But the petitioners collected
fee as contended by the Universities from the students and retained the
same with them. In case, the University is not competent to collect the
fee, the students are the persons aggrieved, but not the higher
educational institutions or colleges. The petitioners are neither aggrieved
persons nor the persons affected on account of the demand made by the
University. The petitioners are only third parties i.e collecting agents for
the Universities from the students, but not the affected or the persons
aggrieved, at best, the petitioners may file appropriate application
invoking jurisdiction of the High Court under public interest litigation,
but not by way of writ petition under Article 226 of the Constitution of
India, in their individual capacity. More particularly, questioning the act
of the respondents/Universities which affects the alleged rights of third
parties i.e. students who are prosecuting studies in the institutions.
Here, the demand was made by the Universities for collection of
additional fee from the students and at best, the students are the
aggrieved persons, but not the petitioners. Even assuming for a moment
without conceding that these petitioners are rendering services for
collection of fee claimed by the students, but still, not competent to
question the action of the respondents/Universities as any of the
petitioners are aggrieved persons having no litigational competency to
move the Court .
Litigational competency is to be decided by the Court on the basis
of nature of issues, matters of concern raised, nature of the right or
interest violated, on account of such demand made by the Universities
for collection of additional fee in different kinds referred in the table, the
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rights of these petitioners are not infringed. But, at best, the students are
the persons aggrieved and their competency can be decided based on
(i) existence of an actual issue, contest or controversy;
(ii) provisions of the Constitution or any law shown to be, or
intended to be in protection of any right or interest,
(iii) the infringement of or an adverse impact on such right, or
interests owning to the action or conduct under challenge, and
(iv) the scope of redressability for remedial measures that can be
granted by courts.
A person will have a standing if he or she is harmed by a legal
wrong caused by administrative or State action or is adversely affected or
aggrieved by such actions within the meaning of the relevant statute.
(vide Director of Endowments, Hyderabad v. Akram Ali4 and D.
Nagaraj v. State of Karnataka5). Locus standi in the context of statutory
remedy is not to be determined by analogy of locus standi to file petitions
under Articles 32 or 226 of the Constitution of India. But, when a
dispute or a controversy, productive of an injury in fact or that the party
has been wronged or adversely affected by the action which impaired that
concern and the said right or interest is arguably within "the zone of
interest" protected by a statute or other instruments of law, can also give
standing to the person. There is fine distinction between litigational
competency in ordinary litigation i.e. adversarial and public interest
litigation as non- adversarial, which varies from one to the other. If, the
Act of the State or administrative authority of the State causes public
injury or affects the right of public at large, such act need not be
AIR 1956 SC 60
(1977) 2 SCC 148
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questioned by a person having locus standi or litigational competency
and such act can be questioned by invoking pro bono publico.
The tests that may be applied for determining standing in private
or individual interest pursuits may not be strictly applied in all cases of
litigation in public interest. However, the commonality of some factors for
determination of standing in both cases may be restated. Thus, a real
grievance or injury must exist; the impact of State action must be
demonstrated, access to justice in substantive or procedural terms must
be shown to be involved, the demand to do justice and the failure to
rectify the wrong is a relevant factor, the inappropriateness, futility,
inadequacy, onerous or burdensome nature of alternative administrative
processes, may have to be established to redress a claim by an individual
by filing an application under Article 226 of the Constitution of India.
But the action of the State infringes either fundamental right or statutory
right of general public and apprehending injury to the public at large, to
any person having no interest in the said matter may question or
challenge the State act.
Litigational competency is not waived in private litigation. But in
public interest litigation only the litigational competency is waived to
some extent but not absolutely. Therefore, one must have locus to get
redressal of the claim approaching the Court in a private litigation and
they must have a right or interest in the property and infringement of it
or invasion or infringement of such is sine qua non to obtain any relief
from the competent court.
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In Union of India v. W.N. Chadha6, the Apex Court held as
follows:
"179. In Union Carbide Corporation, it has been said that any member of
the society must have locus to initiate a prosecution as well as to resist
withdrawal of such prosecution if initiated.
180. That proposition is also, in our opinion, cannot be availed of as the
prosecution was initiated by the appellants herein and they are persecuting
and pursing the matter upto this Court, The proposition that any one can
initiate a criminal proceeding is not in dispute.
181. We have already considered the locus standi of a third party in a
criminal case and rendered a considered finding in Janata Dal v. H.S.
Chowdary [AIR 1993 SC 892] when this matter came before us in the first
round of its litigation. Reference also may be made to Simranjit Singh Mann
v. Union of India and Anr
182. Before the Supreme Court of United States, a similar question arose in
Whitmore v. Arkansas ([1990] 495 US 149), , whether a next friend can
invoke the jurisdiction of the Court when a real party was not able to litigate
his or her own cause. The Supreme Court dismissed the writ of certiorari for
want of jurisdiction on the ground that Whitmore, an independent person
lacked standing to proceed in the case. In said case of Whitmore, reliance
has been placed on a decision, namely, Gusman v. Marrero 180 US 81, 87,
45 L. Ed. 436, 21, S.Ct. 293 (1901), in which it has been held thus:
However friendly he may be to the doomed man and sympathetic for his
situation; however concerned he may be lest unconstitutional laws be
enforced, and however laudable such sentiments are, the grievance they
suffer and feel is not special enough to furnish a cause of action in a case
like this.
183. In fact when this case on hand came up before this Court arising out of
the public interest litigation of Shri H.S. Chowdhary, some other political
parties approached this Court as public interest litigants to challenge the
impugned judgment in that case, but this Court rejected all those appeals
on the ground of locus standi."
Similarly, in Bangalore Medical Trust v. B.S. Muddappa And
others7, the Apex Court discussed the scope of litigational competence
i.e. locus standi and its relaxation in public interest litigation based on
Janata Dal v. H.S. Chowdary8. The law declared by the Apex Court in
the above judgments is that, only in public interest litigation the
litigational competence is waived though not absolutely, but in private
litigation, such litigational competence cannot be waived.
6 AIR 1993 SC 1082
7 1991 SCR (3) 102
8 AIR 1993 SC 892
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The petitioners are claiming that they are the persons aggrieved, as
they are collecting fee from the students on behalf of the Universities.
But, they are not the persons aggrieved in fact, since no legal right of
these petitioners was infringed on account of demand and collection of
fee by the Universities from the students, but not from the colleges. On
the other hand, the petitioners have collected fee from the students as
claimed by the Universities and retained the same without crediting the
same to the Universities. It appears that the petitioners approached this
Court to avoid remittance of the amount collected from the students to
the Universities on the lame excuse that the Universities are not
competent to collect such fee. Therefore, it is clear from the material on
record that these petitioners/colleges/educational institutions are not
the aggrieved persons, as their right is not infringed or invaded on
account of the demand made by the Universities.
At the same time, Writ of Mandamus is discretionary in nature and
such power of judicial review under Article 226 of the Constitution of
India can be exercised only in certain circumstances. At best, this Court
cannot decide the legality of the order. Yet issuance of Writ of Mandamus
is purely discretionary and the same cannot be issued as a matter of
course.
In "State of Kerala v. A.Lakshmi Kutty9", the Hon'ble Supreme
Court held that a Writ of Mandamus is not a writ of course or a writ of
right but is, as a rule, discretionary. There must be a judicially
enforceable right for the enforcement of which a mandamus will lie. The
legal right to enforce the performance of a duty must be in the applicant
himself. In general, therefore, the Court will only enforce the performance
1986 (4) SCC 632
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of statutory duties by public bodies on application of a person who can
show that he has himself a legal right to insist on such performance. The
existence of a right is the foundation of the jurisdiction of a Court to
issue a writ of Mandamus.
In "Raisa Begum v. State of U.P.10", the Allahabad High Court
has held that certain conditions have to be satisfied before a writ of
mandamus is issued. The petitioner for a writ of mandamus must show
that he has a legal right to compel the respondent to do or abstain from
doing something. There must be in the petitioner a right to compel the
performance of some duty cast on the respondents. The duty sought to
be enforced must have three qualities. It must be a duty of public nature
created by the provisions of the Constitution or of a statute or some rule
of common law.
Writ of mandamus cannot be issued merely because, a person is
praying for. One must establish the right first and then he must seek for
the prayer to enforce the said right. If there is failure of duty by the
authorities or inaction, one can approach the Court for a mandamus.
The said position is well settled in a series of decisions.
In "State of U.P. and Ors. v. Harish Chandra and Ors.11" the
Supreme Court held as follows:
"10. ...Under the Constitution, a mandamus can be issued
by the court when the applicant establishes that he has a
legal right to the performance of legal duty by the party
against whom the mandamus is sought and the said right
was subsisting on the date of the petition."
(Emphasis supplied)
10 1995 All.L.J. 534
11 (1996) 9 SCC 309
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In "Union of India v. S.B. Vohra12" the Supreme Court considered
the similar issue and held that 'for issuing a writ of mandamus in favour
of a person, the person claiming, must establish his legal right in
himself. Then only a writ of mandamus could be issued against a person,
who has a legal duty to perform, but has failed and/or neglected to do so.
In "Oriental Bank of Commerce v. Sunder Lal Jain13" the
Supreme Court emphasized the necessity to establish existence of legal
right and its infringement for grant of writ of mandamus referred the
principles stated in the Law of Extraordinary Legal Remedies by F.G.
Ferris and F.G. Ferris, Jr.:
"Note 187.-Mandamus, at common law, is a highly
prerogative writ, usually issuing out of the highest court of
general jurisdiction, in the name of the sovereignty,
directed to any natural person, corporation or inferior
court within the jurisdiction, requiring them to do some
particular thing therein specified, and which appertains to
their office or duty. Generally speaking, it may be said that
mandamus is a summary writ, issuing from the proper
court, commanding the official or board to which it is
addressed to perform some specific legal duty to which the
party applying for the writ is entitled of legal right to have
performed.
Note 192.-Mandamus is, subject to the exercise of a sound
judicial discretion, the appropriate remedy to enforce a
plain, positive, specific and ministerial duty presently
existing and imposed by law upon officers and others who
refuse or neglect to perform such duty, when there is no
other adequate and specific legal remedy and without
which there would be a failure of justice. The chief
function of the writ is to compel the performance of public
duties prescribed by statute, and to keep subordinate and
inferior bodies and tribunals exercising public functions
within their jurisdictions. It is not necessary, however,
that the duty be imposed by statute; mandamus lies as
well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance
unquestionably lies in the sound judicial discretion of the
court, subject always to the well settled principles which
have been established by the courts. An action in
mandamus is not governed by the principles of ordinary
litigation where the matters alleged on one side and not
denied on the other are taken as true, and judgment
pronounced thereon as of course. While mandamus is
classed as a legal remedy, its issuance is largely controlled
by equitable principles. Before granting the writ the court
may, and should, look to the larger public interest which
(2004) 2 SCC 150
(2008) 2 SCC 280
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may be concerned-an interest which private litigants are
apt to overlook when striving for private ends. The court
should act in view of all the existing facts, and with due
regard to the consequences which will result. It is in every
case a discretion dependent upon all the surrounding
facts and circumstances."
(Emphasis supplied)
Similarly, in Corpus Juris Secundum, summarized the
pre-requisites for grant of writ of mandamus and the same is extracted
hereunder:
"Mandamus may issue to compel the person or official in
whom a discretionary duty is lodged to proceed to exercise
such discretion, but unless there is peremptory statutory
direction that the duty shall be performed mandamus will
not lie to control or review the exercise of the discretion of
any board, tribunal or officer, when the act complained of
is either judicial or quasi-judicial unless it clearly appears
that there has been an abuse of discretion on the part of
such Court, board, tribunal or officer, and in accordance
with this rule mandamus may not be invoked to compel
the matter of discretion to be exercised in any particular
way. This principle applies with full force and effect,
however, clearly it may be made to appear what the
decision ought to be, or even though its conclusion be
disputable or, however, erroneous the conclusion reached
may be, and although there may be no other method of
review or correction provided by law. The discretion must
be exercised according to the established rule where the
action complained has been arbitrary or capricious, or
based on personal, selfish or fraudulent motives, or on
false information, or on total lack of authority to act, or
where it amounts to an evasion of positive duty, or there
has been a refusal to consider pertinent evidence, hear the
parties where so required, or to entertain any proper
question concerning the exercise of the discretion, or
where the exercise of the discretion is in a manner entirely
futile and known by the officer to be so and there are other
methods which it adopted, would be effective."
(emphasis supplied)
The Division Bench of the Allahabad High Court in
Ajit Singh v. Union of India14 while dealing with locus standi of a
person who filed petition under Article 226 of the Constitution of India,
referred the judgments of the Supreme Court to hold that existence of
legal right and its infraction must necessarily be pleaded and proved to
issue Writ of Mandamus.
14 2017 (9) ADJ 251
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In State of Orissa v. Madan Gopal15 Hon'ble Apex Court has ruled
that the existence of the right is the foundation of the exercise of
jurisdiction of the Court under Article 226 of the Constitution. In
Charanjit Lal Chowdhuri v. Union of India16, it has been held by
Hon'ble Apex Court that the legal right that can be enforced under Article
32 must ordinarily be the right of the petitioner himself who complains of
infraction of such right and approaches the Court for relief. The Court
did not find any reason why a different principle should apply in the case
of a petitioner under Article 226 of the Constitution. The right that can
be enforced under Article 226 also shall ordinarily be the personal or
individual right of the petitioner himself though in the case of some of
the writs like habeas corpus or quo warranto this rule may have to be
relaxed or modified. Thus, Article 226 confers very wide power on the
High Court to issue directions and writs of the nature mentioned therein
for the enforcement of any of the rights conferred by Part III or for any
other purpose. It is, therefore, clear that persons other than those
claiming fundamental rights can also approach the Court seeking a relief
thereunder. The Article in terms does not describe the classes of persons
entitled to apply thereunder; but it is implicit in the exercise of the
extraordinary jurisdiction that the relief asked for must be one to enforce
a legal right.
Similarly, in Mani Subrat Jain v. State of Haryana17, while
considering Article 226 of the Constitution, the Hon'ble Supreme Court
in paragraph 9, observed thus:
"...It is elementary though it is to be restated that no one
can ask for a mandamus without a legal right There must
be a judicially enforceable right as well as a legally
15 AIR 1952 SC 12
AIR 1951 SC 41
AIR 1977 SC 276
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protected right before one suffering a legal grievance can
ask for a mandamus. A person can be said to be aggrieved
only when a person is denied a legal right by someone who
has a legal duty to do something or to abstain from doing
something. (See Halsbury's Laws of England 4th Ed. Vol I,
paragraph 122); State of Haryana v. Subash Chander,
(1974) 1 SCR 165 : (AIR 1973 SC 2216); Jasbhai Motibhai
Desai v. Roshan Kumar Haji Bashir Ahmed, (1976) 3 SCR
58 : (AIR 1976 SC 578) and Ferris Extraordinary Legal
Remedies paragraph 198."
(emphasis supplied)
It is well-settled that existence of a legal right of a petitioner which
is alleged to have been violated is the foundation for invoking the
jurisdiction of the High Court under Article 226 of the Constitution.
While reiterating this legal proposition, the Supreme Court in paragraph
38 of its judgment in Ghulam Qadir v. Special Tribunal18, held thus:
"38. There is no dispute regarding the legal proposition that
the rights under Article 226 of the Constitution of India can
be enforced only by an aggrieved person except in the case
where the writ prayed for is for habeas corpus or quo
warranto. Another exception in the general rule is the filing
of a writ petition in public interest. The existence of the legal
right of the petitioner which is alleged to have been violated
is the foundation for invoking the jurisdiction of the High
Court under the aforesaid Article. The orthodox rule of
interpretation regarding the locus standi of a person to
reach the Court has undergone a sea change with the
development of constitutional law in our country and the
constitutional Courts have been adopting a liberal approach
in dealing with the cases or dislodging the claim of a litigant
merely on hypertechnical grounds. If a person approaching
the Court can satisfy that the impugned action is likely to
adversely affect his right which is shown to be having
source in some statutory provisions the petition filed by
such a person cannot be rejected on the ground of Ms
having not the locus standi. In other words, if the person is
found to be not merely a stranger having no right
whatsoever to any post or property, he cannot be non-suited
on the ground of his not having the locus standi."
(emphasis supplied)
In view of catena of perspective pronouncements, the petitioner
must plead and prove that legal right existed either statutory or
constitutional right of this petitioner is infringed or invaded or threatened
to infringe or invade by the act of the first respondent. But, the bald
(2002) 1 SCC 33
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allegations made in the affidavit without demonstrating the existence of
any right and it's infringement or it's invasion or threatened infringement
or invasion by the first respondent. In the absence of establishing the
existence of right, it's infringement or invasion or threatened
infringement or invasion, the petitioners are not entitled to claim writ of
mandamus. In view of the law declared by the Supreme Court and
reiterated by the Division Bench of the Allahabad High Court in the
judgment referred supra, the petitioner must plead and prove that a legal
right possessed by him is violated or infringed or threatened to be
infringed to obtain a relief of writ of mandamus.
In the present writ petitions, except alleging that, service fee is
charged without any authority by the University, no other allegation is
made about infringement or violation of the petitioners legal right, either
statutory or constitutional. These pleadings are insufficient to prove that
there existed a legal right in the petitioners, enforceable in a Court of
law, either statutory or constitutional and it's infringement or invasion or
threatened to infringe or invade by the act of the first respondent. In the
absence of pleadings, it is difficult for this Court to hold that the
petitioners legal right, either statutory or constitutional is infringed or
invaded by the act of the first respondent in charging service fee. Hence, I
find that the petitioners failed to establish existence of any legally
enforceable right, its infringement or invasion by University, thereby the
petitioners have no locus to claim relief of writ of mandamus against the
respondents/Universities. Accordingly, Point Nos. 1 and 2 are held in
favour of the respondents/Universities and against the
petitioners/colleges.
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POINT NO.3
Before deciding the authority of the respondents/Universities to
collect fee in the name of university service fee, it is appropriate to
examine the scope and jurisdiction of this Court to interfere with the
administrative actions, more particularly, when it relates to economic
matters pertaining to colleges based on policy decisions.
The scope and jurisdiction of this Court under Article 226 of the
Constitution of India to interfere with such quasi-judicial actions of
respondent No.2, which were accepted by respondent No.1 is limited and
this Court can interfere with such decisions only when the
recommendations were made in utter deviation of procedure prescribed
under the Rules or such recommendations made by respondent No.2 and
notified by respondent No.1 in violation of principles of natural justice.
Thus, the jurisdiction of this Court is limited and interference with such
orders as a matter of routine is impermissible.
Judicial review, as is well known, lies against the decision-making
process and not the merits of the decision itself. If the decision-making
process is flawed inter alia by violation of the basic principles of natural
justice, is ultra-vires the powers of the decision maker, takes into
consideration irrelevant materials or excludes relevant materials, admits
materials behind the back of the person to be affected or is such that no
reasonable person would have taken such a decision in the
circumstances, the court may step in to correct the error by setting aside
such decision and requiring the decision maker to take a fresh decision
in accordance with the law. The court, in the garb of judicial review,
cannot usurp the jurisdiction of the decision maker and make the
decision itself.
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In "Fertilizer Corporation Kamgar Union (Regd.), Sindri v.
Union of India19", the Apex Court observed as follows:
"We certainly agree that judicial interference with
the administration cannot be meticulous in our
Montesquieu system of separation of powers. The court
cannot usurp or abdicate, and the parameters of judicial
review must be clearly defined and never exceeded. If the
directorate of a government company has acted fairly, even
if it has faltered in its wisdom, the court cannot, as a
super auditor, take the Board of Directors to task. This
function is limited to testing whether the administrative
action has been fair and free from the taint of
unreasonableness and has substantially complied with the
norms of procedure set for it by Rules of public
administration."
(Emphasis supplied)
Judicial restraint in exercise of judicial review was considered in
"the State of (NCT) of Delhi v. Sanjeev20" as follows:
"One can conveniently classify under three heads
the grounds on which administrative action is subject to
control by judicial review. The first ground is "illegality",
the second "irrationality", and the third "procedural
impropriety". These principles were highlighted by Lord
Diplock in Council of Civil Service Unions v. Minister for
the Civil Service (commonly known as CCSU case). If the
power has been exercised on a non-consideration or non-
application of mind to relevant factors, the exercise of
power will be regarded as manifestly erroneous. If a power
(whether legislative or administrative) is exercised on the
basis of facts which do not exist and which are patently
erroneous, such exercise of power will stand vitiated."
(Emphasis supplied)
It needs no emphasis that complex executive decisions in economic
matters are necessarily empiric and based on experimentation. Its
validity cannot be tested on any rigid principles or the application of any
straitjacket formula. The Court while adjudging the validity of an
executive decision in economic matters must grant certain measure of
freedom or play in the joints to the executive. Not mere errors, but only
palpably arbitrary decisions alone can be interfered with in judicial
(1981) 1 SCC 568
(2005) 5 SCC 181
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review. The recommendation made by a statutory body consisting of
domain experts not being to the satisfaction of the State Government or
to the higher educational institutions is an entirely different matter with
which I am not concerned in the present discussion. The Court should
therefore be loath to interfere with such recommendation of an expert
body, and accepted by the government, unless it suffers from the vice of
arbitrariness, irrationality, perversity or violates any provisions of the law
under which it is constituted. The Court cannot sit as an appellate
authority, entering the arena of disputed facts and figures to opine with
regard to manner in which respondent No.2 ought to have proceeded
without any finding of any violation of Rules or procedure. If a statutory
body has not exercised jurisdiction properly the only option is to remand
the matter for fresh consideration and not to usurp the powers of the
authority.
In "Peerless General Finance and Investment Co. Ltd. v.
Reserve Bank of India21", it was observed as follows:
"The function of the court is to see that lawful authority is
not abused but not to appropriate to itself the task
entrusted to that authority. It is well settled that a public
body invested with statutory powers must take care not to
exceed or abuse its power. It must keep within the limits
of the authority committed to it. It must act in good faith
and it must act reasonably. Courts are not to interfere
with economic policy which is the function of experts. It is
not the function of the courts to sit in judgment over
matters of economic policy and it must necessarily be left
to the expert bodies. In such matters even experts can
seriously and doubtlessly differ. Courts cannot be
expected to decide them without even the aid of experts."
(Emphasis supplied)
In the context of Indian jurisprudence, the Constitution is the
supreme law. All executive or legislative actions have to be tested on the
anvil of the same. Such actions will have to draw their sustenance as
(1992) 2 SCC 343
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also their boundaries under the same. Any action falling foul of the
constitutional guarantees will call for corrective action in judicial review
to ensure adherence to the constitutional ethos. But so long as the fabric
of the constitutional ethos is not set as under, the Court will have to
exercise restraint, more particularly in matters concerning domain
experts, else the risk of justice being based on individual perceptions
which may render myths as realities inconsistent with the constitutional
ethos. Courts often adjudicate disputes that raise the question of how
strictly should they scrutinise executive or legislative action. Therefore,
courts have identified certain questions as being inappropriate for
judicial resolution or have refused on competency grounds to substitute
their judgment for that of another person on a particular matter.
The need for judicial restraint with regard to recommendations of
expert committees, more particularly in matters relating to finance and
economics, was considered by the Apex Court in "BALCO Employees'
Union (Regd.) v. Union of India22" and held:
"Nevertheless, contention is sought to be raised that the
method of valuation was faulty, some assets were not
taken into consideration and that Rs. 551.5 crores offered
by M/s. Sterlite did not represent the correct value of 51%
shares of the Company along with its controlling interest.
It is not for this Court to consider whether the price which
was fixed by the Evaluation Committee at Rs. 551.5 crores
was correct or not. What has to be seen in exercise of
judicial review of administrative action is to examine
whether proper procedure has been followed and whether
the reserve price which was fixed is arbitrarily low and on
the face of it, unacceptable."
(Emphasis supplied)
In the case of a policy decision on economic matters, the Courts
should be very circumspect in conducting any enquiry or investigation
and must be most reluctant to impugn the judgment of the experts who
(2002) 2 SCC 333
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may have arrived at a conclusion unless the Court is satisfied that there
is illegality in the decision itself.
Noting the above principles, the Apex Court in "Vasavi
Engineering College Parents Association v. State of Telangana23"
categorically held that the Court has to maintain judicial restraint while
dealing with the economic policy decision of the State. The Courts cannot
interfere with those decisions unless those decisions are taken in
violation of principles of natural justice or in violation of any rule
authorizing such authorities to take such decision. Therefore, the
jurisdiction of this Court is limited and this Court has to examine,
keeping in view the principles laid down in the above judgments, whether
there is any procedural violation or violation of principles of natural
justice as contended by the petitioners herein.
Keeping in view the law declared by the Apex Court in various
judgments referred above, I would like to examine the authority of the
University(s) to collect service fee.
Fixation of fee is governed by the provisions of Andhra Pradesh
Educational Institutions (Regulation of Admissions and Prohibition of
Capitation Fee) Act, 1983 and Andhra Pradesh Higher Education
Regulatory and Monitoring Commission Rules, 2019.
Section 2(b) of the Capitation Fee Act, 1983 defined 'Capitation fee'
as any amount collected in excess of the fee prescribed under Section 7.
Section 7 is an enabling provision to regulate the fee. According to
Section 7, it shall be competent for the Government by notification, to
regulate the tuition fee or any other fee that may be levied and collected
(2019) 7 SCC 172
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by any educational institution in respect of each class of students; no
educational institution shall collect any fee in excess of the fee notified
under sub-section (1) and every educational institution shall issue an
official receipt for the fee collected by it.
Section 9 of the Capitation Fee Act, 1983 deals with 'Penalties' in
case of violation of Sections 5 & 6 of the Act. Therefore, it is evident from
the provisions of the Capitation Fee Act, 1983 that the educational
institutions cannot collect any fee in excess of the fee notified under Sub-
section (1) of Section 7 of the Capitation Fee Act, 1983. But, who will fix
the fee is again another question?.
Regulation 8 permits the Commission to fix the fee of both aided
and unaided educational institutions, taking into consideration various
aspects referred therein. Therefore, the fee shall be fixed by HERMC and
the educational institutions are not entitled to collect any amount other
than the fee fixed under Section 7 of the Capitation Fee Act, 1983.
The main contention of the petitioners is that, in view of the bar
under Section 7 of the Capitation Fee Act, 1983, demand or collection of
fee in addition to the fee fixed by HERMC is illegal and arbitrary, the
university is not entitled to collect such fee in excess of the fee fixed
under Section 7 of the Capitation Fee Act, 1983. Whereas, learned
Standing Counsels for the respondents/Universities in all these writ
petitions would contend that the University is competent to collect fee
and on the demand made by the University, HERMC issued the following
Government Orders, fixing fee payable to the University towards service
fee on the recommendation made by HERMC, Government Orders were
issued by the State Government.
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1 G.O.Ms.No.40 Higher Education (E.C.) Department 24.06.2016
2 G.O.Ms.No.43 Higher Education (E.C.) Department 25.06.2016
3 G.O.Ms.No.110 School Education (Training) Department 01.10.2016
4 G.O.Ms.No.58 School Education (Training) Department 25.07.2017
5 G.O.Ms.No.59 School Education (Training) Department 25.07.2017
6 G.O.Ms.No.41 Higher Education (U.C.) Department 19.08.2019
7 G.O.Ms.No.47 Higher Education (U.C.) Department 19.09.2019
8 G.O.Ms.No.48 Higher Education (U.C.) Department 20.09.2019
9 G.O.Ms.No.66 School Education (Training) Department 30.09.2019
10 G.O.Ms.No.49 Higher Education (U.C.) Department 11.10.2019
11 G.O.Ms.No.15 Higher Education (E.C.) Department 24.03.2020
12 G.O.Ms.No.2 Higher Education (E.C.) Department 18.01.2021
13 G.O.Ms.No.9 Higher Education (E.C.) Department 20.02.2021
14 G.O.Ms.No.19 Higher Education (E.C.) Department 16.04.2021
Most peculiarly, the petitioners in all these writ petitions did not
challenge any of the Government Orders, but the authority of the
University is questioned. However, in this regard, learned Standing
Counsel referred to Sections 53 & 54 of the A.P. Universities Act, 1991.
Chapter IX of the A.P. Universities Act, 1991, consists from Sections 51
to 55 dealing with Statutes, Ordinances and Regulations. Section 53 is
the provision for deciding the real controversy in the present batch of
writ petitions.
Section 53 deals with 'Ordinances'. According to it, the Executive
Council shall have power to make Ordinances subject to the provisions of
this Act and the Statutes and such Ordinances may provide for all or any
of the following matters, namely:-
(a) the levy of fee in the University and the constituent colleges;
(b) the fee to be charged for admission to the examinations, degrees
and diplomas of the University;
(c) the conditions of residence of students to the University and the
levy of fee for residence in hostels maintained by the University,
(d) the conditions of recognition of hostels not maintained by the
University;
(e) the number, qualifications and emoluments of teachers of the
University;
(f) the fee to be charged for courses of study given by the teachers of
the University for lectures, for tutorial and supplementary
instruction provided by the University, and for services rendered
by the University Officers;
(g) the mode of appointment and duties of examiners;
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(h) the conduct of examinations;
(i) the constitution and determination of the functions of the Boards
of Studies;
(j) the discipline, health and welfare of students of the University;
(k) the constitution, powers and duties of University Extension
Boards; and
(l) all matters which by this Act or by the Statutes may be provided
for by the Ordinances.
Section 54 deals with as to how 'Ordinances are made' and Section 55
deals with 'Regulations'. Based on Sections 53 and 54 of the A.P.
Universities Act, learned Standing Counsel for Universities would
contend that the Universities can pass Ordinances for collection of fee
and placed on record a copy of book of Ordinances approved at the
Executive Council Meeting held on 15.05.2018 and Academic Senate
Meeting held on 27.10.2018, with effect from 27.10.2018. Based on
Ordinances passed by exercising power under Sections 53 & 54 of the
A.P. Universities Act, 1991, different fee is levied and ordered to be
collected by the educational institutions/colleges and the
petitioners/colleges are liable to pay the fee fixed by HERMC and notified
by the Government. In view of these provisions, it is necessary to advert
to various Government Orders issued by the Government from 2016
onwards.
S.No. G.O. Fixation of fee structure for various courses
Ms.No. and
date
1 G.O.Ms.No.40 Fixation of fee structure for Post Graduate M.E./M.Tech.
Higher courses in Private Un-Aided Professional Institutions in the
Education State of Andhra Pradesh, for the block period 2016-17 to 2018-
Department
The Private Un-Aided Engineering Colleges are permitted to
Dated collect:-
24.06.2016
a) An amount of Rs. 2,000/- as onetime payment per student at
the time of admission towards
Admission/Registration/Recognition fee and out of the said
amount of Rs. 2,000/-, Rs. 500/- shall be remitted by the
institution to the concerned University and the remaining
amount of Rs. 1,500/- shall be retained by the institution.
b) An amount of Rs. 1,850/- per annum per student (towards
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examination related, academic audit, curriculum revision &
content, development, staff training, coordination meeting and
university publications website maintenance) during the course
towards common services rendered by the University to the
college as mentioned below and such amount collected by the
College shall be remitted to the concerned University.
c) An amount of Rs. 500/- towards library deposit and an
amount of Rs. 500/- towards laboratory deposit (totaling into
Rs. 1000/-) by way of refundable caution deposits at the time of
admission only as onetime payment.
2. G.O.Ms.No.43 Fixation of fee structure for B.Pharmacy, Pharma-D, Pharma(PB)
Higher and M.Pharmacy Courses in Private Un-Aided Professional
Education Institutions in the State of Andhra Pradesh for the block period
(E.C.) 2016-17 to 2018-19
Department
ii) The fee structure under NRI Quota in respect of those
Dated institutions who desire to admit the students for the courses of
25.06.2016 B. Pharmacy, Pharma-D, B.E. / B.Tech. & B.Arch., M.E. /
M.Tech. & M.Arch., Pharma(PB) and M.Parmacy is as follows:-
a) $ 5000 (US Dollars) per student per annum for
B.Pharmacy and Pharma-D Courses each;
b) $ 5000 (US Dollars) per student per annum for
B.E./B.Tech & B. Architecture Courses each;
c) $ 6000 (US Dollars) per student per annum for
M.E./M.Tech. & M.Arch Courses each;
d) $ 7000 (US Dollars) per student per annum for M.
Pharmacy;
e) $ 6000 (US Dollars) per student per annum for
Pharma(PB) Course.
iii) The Private Un-Aided B. Pharmacy, Pharma-D, Pharma (PB)
and M. Pharmacy Colleges are permitted to collect:
a) An amount of Rs. 2,000/- as onetime payment per
student at the time of admission towards
Admission/Registration/Recognition fee and out of the
said amount of Rs. 2,000/-, Rs. 500/- shall be remitted
by the institution to the concerned University and the
remaining amount of Rs. 1,500/- shall be retained by the
institution.
b) An amount of Rs. 1,850/- per annum per student
during the course towards common services rendered by
the University to the college as mentioned below and
such amount collected by the College shall be remitted to
the concerned University.
c) An amount of Rs. 1,850/- per annum per student
(towards examination related, academic audit,
curriculum revision & content, development, staff
training, coordination meeting and university
publications website maintenance) during the course
towards common services rendered by the University to
the college as mentioned below and such amount
collected by the College shall be remitted to the
concerned University.
d) An amount of Rs. 500/- towards library deposit and
an amount of Rs. 500/- towards laboratory deposit
(totaling into Rs. 1000/-) by way of refundable caution
deposits at the time of admission only as onetime
payment.
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3 G.O.Ms.No.110 Fixation of Fee structure and special fee for B.Ed. course in
School Private Un-aided Minority/Non Minority colleges in the State of
Education Andhra Pradesh for the block period 2016 - 17 to 2018 - 19
(Training)
Department (i) The Tuition Fee is fixed per annum per each student are
shown against the college name for 220 B.Ed colleges listed.
Dated
01.10.2016 (ii) Special fee is of Rs.3000/- (Three thousand Rupees only) per
annum for each student as specified below for all the Private
unaided (Minority and Non-Minority) B.Ed Colleges in the State
for the years 2016 - 17 to 2018 - 19.
4 G.O.Ms.No.58 Fixation of Fee structure and special fee for M.P.Ed course in
School the State of Andhra Pradesh for the block period 2017 - 18 to
Education 2019 - 20
(Training)
Department (i) The Tuition Fee is fixed per annum per each student are
shown against the college name for 04 M.P.Ed colleges listed in
Dated Annexure.
25.07.2017
(ii) Special fee is of Rs.4000/- (Four thousand Rupees only) per
annum for each student as specified below for all the 04 Private
Un Aided M.P.Ed Colleges in the State for the years 2017 - 18 to
2019 - 20.
5 G.O.Ms.No.59 Fixation of Fee structure and special fee for UG D.P.Ed course in
School the State of Andhra Pradesh for the block period 2017-18 to
Education 2019 -20
(Training)
Department (i) The Tuition Fee is fixed per annum per each student are
shown against the college name for 09 UG D.P.Ed colleges
Dated
25.07.2017 (ii) Special fee is of Rs.3500/- (Three thousand five hundred
Rupees only) per annum for each student as specified below for
all the 09 Private Un Aided UG D.P.Ed Colleges in the State for
the years 2017-18 to 2019 -20.
As the State Government issued G.O.Ms.No.40 and other government
orders enabling the colleges/institutions to collect different fee as shown
in the table mentioned above, the petitioners/colleges are bound to
collect the same and remit as directed in the said G.O., since it is a part
of the fee levied, exercising power by HERMC and the petitioners/colleges
are bound to collect the fee in terms of Section 7 of the Capitation Fee
Act, 1983.
Before, 27.10.2018, no Ordinances were passed, but, in the
present batch of writ petitions, the petitioners claimed that the University
is collecting the fee in excess of the fee fixed by HERMC as illegal and
sought declaration.
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As seen from the Government Orders from 25.06.2016 to
27.10.2018, HERMC itself recommended for collection of different fee in
excess of the fee fixed under Section 7 of the Capitation Fee Act, 1983.
Therefore, when the HERMC fixed fee separately payable to the
University, that cannot be treated as Capitation Fee, as defined under
Section 2(b) of the Capitation Fee Act, 1983, since the fee was fixed by
HERMC exercising power under the Regulations. Therefore, collection of
fee by the University under different heads, as recommended by HERMC
and notified by the Government cannot be termed as Capitation Fee, as it
is not collection of fee in addition of fee notified by the Government under
Section 7 of the Capitation Fee Act, 1983. Hence, the fee whatever is
fixed under various Government Orders referred above for various
courses is only by HERMC on the request of Universities and notified by
the Government, such collection of fee under different heads cannot be
said to be in violation of Section 7 of the Capitation Fee Act, 1983.
Learned counsel for the petitioners mainly relied on two judgments
of the learned single Judge of High Court of Andhra Pradesh at
Hyderabad in Adarsha College of Education, Giddalur, Prakasam
District v. Acharya Nagarjuna University, Guntur District24 while
dealing with similar situation referred to Section 2(14) and Section 5(20)
of the A.P. Universities Act, 1991; it was observed that; The word
'prescribed' is defined under Section 2(14) of the Act, as "prescribed by
Statutes, Ordinances or Regulations". A combined reading of sections
5(20) and 2(14) makes it clear that a University can fix and demand fee,
only when it is prescribed under the statutes, ordinances or regulations.
Under Chapter IX of the Act, the power to make statutes is conferred
upon the Executive Council. Sections 51 and 53 stipulate the subjects on
24 (2010) 3 ALD 113
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which the statutes and ordinances, respectively, can be made. The
Executive Council of the University is conferred with the power to make
these subordinate legislations, though the procedure stipulated therefor
is slightly different. The Regulations, on the other hand, are made by the
Academic Senate, as provided for under Section 55 of the Act. The
learned single Judge specifically held that, the University would have
been justified in demanding the infrastructure/development fee, if there
existed any statute, ordinance or regulation, providing for it.
But, in the facts of the judgment, no regulation or ordinance was
passed by the University under Section 53 or Section 54 of the
Universities Act, thereby the learned single Judge allowed the writ
petitions, holding that the demand issued by the University is illegal, as
the demand is not based on any statute or regulation.
Similarly, in Islamia Education Society v. Government of
Andhra Pradesh25, the learned Single Judge also expressed an identical
view and declared that the demand made by the University is illegal and
arbitrary, as it is not based on any ordinance or regulation, passed in
exercise of power under Sections 53 & 54 of Chapter IX of A.P.
Universities Act, 1991.
Adverting to the present facts of the case, a bare look at the
Ordinances passed by Acharya Nagarjuna University for the academic
year 2016-2017, the Executive Council reserved right to modify the
rights of fee for various courses which is inclusive of tuition fee, special
fee and additional fee (medical fund) and the Ordinances were approved
at the Executive Council Meeting on 15.05.2018 and it came into effect
from 27.10.2018.
25 (2012) 6 ALD 495
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Relevant ordinances are extracted as under:
Ordinance No.9 - Levy of Fee for various courses of study in the
University was approved by the Executive Council vide Resolution
Number 1.16 in the meeting held on 15.05.2018 and is effective from
27.10.2018. Following are the rate of fee per annum for various courses
of study in the University for the academic year 2016-2017. The revised
rates of fee is shown in the table below:
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Ordinance No.9 states that the Executive Council shall have power
to modify the rates of fee as and when found necessary and/or in
pursuance of relevant orders of the Government of A.P.
Thus, it is evident from Ordinance No.9 that an Additional Fee i.e.
Medical Fund of Rs.240/- was collected for the year 2016-2017.
Ordinance No.11 - Fee Particulars for admission to various
Examinations, Degrees and Diplomas of the University was approved by
the Executive Council vide Resolution Number 1.16 in the meeting held
on 15.05.2018 and is effective from 27.10.2018. Following are the rate of
fee for admission to various examinations, degrees and diplomas of the
University for the academic year 2016-2017.
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In view of the Ordinance Nos.9 & 11 passed by the University for
Collection of fee under different heads mentioned in the Ordinances, the
collection of fee by the University is not illegal. However, the University
demanded fee other than the fee covered by Ordinance Nos. 9 & 11. But,
the State HERMC recommended fee payable to the University and
notified by the Government. Therefore, such demand or collection of
different fee is against the principles laid down by the learned Single
Judge in Adarsha College of Education case (referred supra) and
Islamia Education Society case (referred supra).
A similar question came up for consideration in CMR College of
Engineering Technology Kandlakoya v. The Jawaharlal Nehru
Technological University26, wherein the learned Single Judge upheld
the contention of the Universities while holding that the petitioners have
no locus standi and when once they collected fee from the students, they
are bound to remit the same to the University concerned. The order
passed in the batch of writ petitions was challenged in appeal before the
Division Bench of High Court of Hyderabad for the State of Telangana
and State of Andhra Pradesh in CMR College of Engineering
Technology Kandlakoya v. The Jawaharlal Nehru Technological
University27, wherein the Division Bench held as follows:
"In our opinion, once having collected the fee towards
common services from the students, for remitting the same
to the University, it is not open to the colleges to retain the
same. The students have paid it for the University, and, as
rightly observed by learned single Judge in the impugned
order, none of the students has made any grievance in
respect of this fee. That apart, the College, cannot, under
any circumstances, decide whether the University renders
any services and that they are entitled to retain the said
amount collected towards common services to be rendered
27 (2016) 6 ALT 477 (DB)
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by the University. As rightly observed by the learned single
Judge, it was open to the Colleges to seek revision of the fee
structure contemplated by the Rules and as observed by
the Supreme Court in Islamic Academy of Education."
The order of the learned Single Judge was upheld and affirmed by
the Division Bench of the High Court of Judicature at Hyderabad. In view
of the judgment of the Division Bench, the judgments of the learned
Single Judge in Adarsha College of Education case (referred supra) and
Islamia Education Society case (referred supra) are not binding on this
Court and therefore, by applying the law declared by the Division Bench
in CMR College of Engineering Technology Kandlakoya (referred
supra), collection of fee even in the absence of any Ordinance is legal and
the same cannot be set-aside, when once it was recommended by
HERMC and notified by the Government which falls within Section 7 of
the Capitation Fee Act, 1983.
Assuming for a moment that the demand made by the University is
without any authority of law, as no Regulation or Ordinance was passed
for collection of the fee under various heads, as mentioned in the table
referred supra. The petitioners are not the aggrieved persons due to the
act of the University, demanding to collect different kind of fee and at
best, the student who seeks admission or who was already admitted in
the educational institutions/colleges were the persons aggrieved. But,
they did not challenge the demand made by the University for collection
of different kinds of fee shown in table referred supra. As I already held
in Point Nos. 1 & 2, that the petitioners have no locus standi to challenge
the demand made by the Universities, as the petitioners/educational
institutions are only intermediaries who are collecting fee from the
students who is under obligation to remit the same to the concerned
Universities and the question of infringement or invasion of right of the
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petitioners either under constitution or under any statute does not arise,
thereby, the petitioners are disentitled to claim writ of mandamus, as
claimed in these writ petitions. Accordingly, I hold that these petitioners
are not entitled to claim writ of mandamus, as they have no locus standi.
Hence, the point is held in favour of the respondents/Universities and
against the petitioners/colleges.
P O I N T NO.4
One of the contentions raised before this Court is that, HERMC
recommended fee under different heads, including service fee for different
courses and notified the same by Principal Secretary to the Government
and Special Chief Secretary to the Government. But, HERMC and the
Government are not made parties to the writ petitions, except impleading
the Universities in most of the writ petitions. When once an attempt was
made by the Universities for collection of service fee and recommendation
was made by HERMC, which is an instrumentality of the State.
Therefore, they are proper and necessary parties to the writ petitions, in
whose absence, the real controversy between the parties cannot be
decided.
Undoubtedly, when necessary parties are not impleaded to the writ
petition, the writ petition is liable to be dismissed in limini. But, who is
necessary and proper party is a question of fact depending upon the facts
of each case. Proper party is a party, in whose absence effective
adjudication cannot be made. Necessary party is a party, in whose
absence the dispute cannot be decided. Similar issue was decided in
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"Bank of California v. Superior Court28" California Court held as
follows:
"First, then, what parties are indispensable? There may be some persons
whose interests, rights, or duties will inevitably be affected by any decree
which can be rendered in the action. Typical are the situations where a
number of persons have undetermined interests in the same property, or in a
particular trust fund, and one of them seeks, in an action, to recover the
whole, to fix his share, or to recover a portion claimed by him. The other
persons with similar interests are indispensable parties. The reason is that a
judgment in favor of one claimant for part of the property or fund would
necessarily determine the amount or extent which remains available to the
others. Hence, any judgment in the action would inevitably affect their rights.
Thus, in an action by one creditor against assignees for the benefit of
creditors, seeking an accounting and payment of his share of the assets, the
other creditors were held indispensable (McPherson v. Parker, 30 Cal. 455 [89
Am. Dec. 129]); and in an action [16 Cal.2d 522] by plaintiff to enforce a trust,
where he claimed the property in his own right, to the exclusion of another
actual beneficiary, failure to join the latter was held fatal to the judgment.
(O'Connor v. Irvine, 74 Cal. 435 [16 P. 236].) Where, also, the plaintiff seeks
some other type of affirmative relief which, if granted, would injure or affect
the interests of a third person not joined, that third person is an indispensable
party. Thus, in an action by a lessor against a sublessee to forfeit a parent
lease because of acts of the sublessee, the sublessors (original lessees) were
indispensable parties, since a decree of forfeiture would deprive them of their
lease. (Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232, 262 [73
PaCal.2d 1163].) And in a suit to cancel illegal registration of voters, all voters
whose registration was challenged were indispensable parties. (Ash v. Superior
Court, 33 Cal.App. 800 [166 P. 841].) Many other cases, illustrating the
reasons for compulsory joinder, may be found. (See, e. g., Mitau v. Roddan,
supra; Crowell v. Cape Cod Ship Canal Co., 164 Mass. 235 [41 N.E. 290];
Lawrence v. Smith, 201 Mass. 214 [87 N.E. 623]; Florida Land Rock
Phosphate Co. v. Anderson, 50 Fla. 501 [39 So. 392, 396]; Hartley v.
Langkamp, 243 Pa. 550 [90 Atl. 402]; Fineman v. Cutler, 273 Pa. 189 [116 Atl.
819]; Matagorda Canal Co. v. Markham Irr. Co., [Tex. Civ. App.] 154 S.W.
1176; Franz v. Buder, supra; Weeden v. Gher, 316 Ill. 534 [147 N.E. 388];
Hauser v. Power, 351 Ill. 36 [183 N.E. 580]; notes, 48 Harv. L. Rev. 995; 23
Cal. L. Rev. 320, 340.)
All of these persons are, of course, "necessary" parties, but the decisions show
that they come within a special classification of necessary parties, to which
the term "indispensable" seems appropriate. An attempt to adjudicate their
rights without joinder is futile. Many cases go so far as to say that the court
would have no jurisdiction to proceed without them, and that its purported
judgment would be void and subject to collateral attack. [5] The objection
being so fundamental, it need not be raised by the parties themselves; the
court may, of its own motion, dismiss the proceedings, or refuse to proceed,
until these indispensable parties are brought in. (Hartman Ranch Co. v.
Associated Oil Co., supra; Solomon v. Redona, 52 Cal.App. 300 [198 P. 643];
Hutchins v. Security Trust etc. Bank, 208 Cal. 463, 467 [281 P. 1026, 65
A.L.R. 1059]; Florida Land Rock Phosphate [16 Cal.2d 523] Co. v. Anderson;
supra; Hartley v. Langkamp, supra; Krueding v. Chicago Dock & Canal Co.,
285 Ill. 79 [120 N.E. 478]; Hauser v. Power, supra; Fineman v. Cutler, supra.)
[6] It follows that if the court does attempt to proceed, it is acting beyond its
jurisdiction and may be restrained by prohibition.
This analysis finds complete support in the well-considered case of Rundell v.
McDonald, supra, where all of the heirs of the intestate were named as
defendants, but the action was dismissed as to some of them. The court said
(p. 728): "If, on the other hand, as appellant contends, an action such as this
can be maintained only against the heirs, appellant nevertheless is in no
16 Cal.2d 516
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position to complain of any defect of parties defendant, since the decree
cannot injudiciously affect the other heirs. Though the heirs succeeded to the
legal title as tenants in common, they held their respective undivided moieties
by several and distinct titles ... The theory on which the courts proceed,
therefore, is to fasten a trust on the property in favor of the promisee, and to
enforce such trust against the heirs of the deceased. Under this theory each
heir holds the title to which he has succeeded in trust for the promisee. In the
instant case the effect of the judgment against appellant as the surviving
husband was to fasten a trust on the title to which he succeeded and to
compel a conveyance of that title to respondent. If, as appellant contends, an
action such as this lies only against the heirs of the deceased promisor and
not against his estate or personal representative, then the judgment cannot be
pleaded against any of the heirs as to whom the action was dismissed. It
follows, therefore, that the decree in nowise affects the rights of appellant's
coheirs, and that they were not indispensable parties to the action." (See, also,
to the same effect, Oles v. Wilson, 57 Colo. 246 [141 P. 489, 498].)
If, in this kind of action, the court has jurisdiction to try the case, and may
render a valid judgment where the plaintiff sues or maintains the suit against
less than all of the distributees, it must be clear that they are not
indispensable [16 Cal.2d 526] parties. So, in the present case, the absent
defendants are not indispensable parties, and the court has jurisdiction to
proceed without them, to determine the rights of the parties actually before it."
A Four-judge Bench Apex Court in "Udit Narain Singh Malpaharia v.
Additional Member Board of Revenue, Bihar29" has observed thus:
"The question is whether in a writ in the nature of certiorari filed under Art. 226
of the Constitution the party or parties in whose favour a tribunal or authority
had made an order, which is sought to be quashed, is or are necessary party or
parties. While learned Additional Solicitor General contends that in such a writ
the said tribunal or authority is the only necessary party and the parties in whose
favour the said tribunal or authority made an order or created rights are not
necessary parties but may at best be only proper parties and that it is open to this
Court, even at this very late stage, to direct the impleading of the said parties for a
final adjudication of the controversy, learned counsel for the respondents
contends that whether or not the authority concerned is necessary party, the said
parties would certainly be necessary parties, for otherwise the High Court would
be deciding a case behind the back of the parties that would be affected by its
decision.
Lord Justice Slesser in The King v. London County Council [1931] 2 K.B. 215,
dissected the concept of judicial act laid down by Atkin, L J., into the following
heads in his judgment : "wherever any body of persons (1) having legal authority
(2) to determine questions affecting rights of subjects and (3) having the duty to
act judicially (4) act in excess of their legal authority - a writ of certiorari may
issue". It will be seen from the ingredients of judicial act that there must be a duty
to act judicially. A tribunal, therefore, exercising a judicial or quasi-judicial act
cannot decide against the rights of a party without giving him a hearing or an
opportunity to represent his case in the manner known to law. If the provisions of
a particular statute or rules made thereunder do not provide for it, principles of
natural justice demand it. Any such order made without hearing the affected
parties would be void. As a writ of certiorari will be granted to remove the record
of proceedings of an inferior tribunal or authority exercising judicial or quasi-
judicial acts, ex hypothesi it follows that the High Court in exercising its
jurisdiction shall also act judicially in disposing of the proceedings before it. It is
implicit in such a proceeding that a tribunal or authority which is directed to
transmit the records must be a party in the writ proceedings, for without giving
notice to it, the record of proceedings cannot be brought to the High Court. It is
said that in an appeal against the decree of a subordinate court, the court that
AIR 1963 SC 786
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passed the decree need not be made a party and on the same parity of reasoning
it is contended that a tribunal need not also be made a party in a writ proceeding.
But there is an essential distinction between an appeal against a decree of a
subordinate court and a writ of certiorari to quash the order of a tribunal or
authority : in the former, the proceedings are regulated by the Code of Civil
Procedure and the court making the order is directly subordinate to the appellate
court and ordinarily acts within its bounds, though sometimes wrongly or even
illegally, but in the case of the latter, a writ of certiorari is issued to quash the
order of a tribunal which is ordinarily outside the appellate or revisional
jurisdiction of the court and the order is set aside on the ground that the tribunal
or authority acted without or in excess of jurisdiction. If such a tribunal or
authority is not made party to the writ, it can easily ignore the order of the High
Court quashing its order, for, not being a party, it will not be liable to contempt.
In these circumstances whoever else is a necessary party or not the authority or
tribunal is certainly a necessary party to such a proceeding. In this case, the
Board of Revenue and the Commissioner of Excise were rightly made parties in
the writ petition.
The next question is whether the parties whose rights are directly affected are
the necessary parties to a writ petition to quash the order of a tribunal. As we
have seen, a tribunal or authority performs a judicial or quasi-judicial act after
hearing parties. Its order affects the right or rights of one or the other of the
parties before it. In a writ of certiorari the defeated party seeks for the quashing of
the order issued by the tribunal in favour of the successful party. How can the
High Court vacate the said order without the successful party being before it ?
Without the presence of the successful party the High Court cannot issue a
substantial order affecting his right. Any order that may be issued behind the
back of such a party can be ignored by the said party, with the result that the
tribunal's order would be quashed but the right vested in that party by the wrong
order of the tribunal would continue to be effective. Such a party, therefore, is a
necessary party and a petition filed for the issue of a writ of certiorari without
making him a party or without impleading him subsequently, if allowed by the
court, would certainly be incompetent. A party whose interests are directly
affected is, therefore, a necessary party.
In addition, there may be parties who may be described as proper parties,
that is parties whose presence is not necessary for making an effective order but
whose presence may facilitate the settling of all the questions that may be
involved in the controversy. The question of making such a person as a party to a
writ proceeding depends upon the judicial discretion of the High Court in the
circumstances of each case. Either one of the parties to the proceeding may apply
for the impleading of such a party or such a party may suo motu approach the
court for being impleaded therein."
The same principle was reiterated by the Apex Court in "Poonam v.
State of U.P.30", held as follows:
"We may add that the law is now well settled that a necessary party is one
without whom, no order can be made effectively and a proper party is one in
whose absence an effective order can be made but whose presence is
necessary for a complete and final decision of the question involved in the
proceeding."
In Baskaran v. The Commissioner of College Education and
Ors31, a Hon'ble Division Bench of this Court following the judgment of
(2016) 2 SCC 779
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Prabodh Verma v. State of Uttar Pradesh32, held that the remedy
under Article 226 of Constitution of India is equitable and discretionary
and the persons who would be vitally affected by the decision are
necessary parties. The Court should dismiss the writ petition, if
necessary parties are not impleaded in the writ petition.
In yet another decision in Ramarao and Ors. v. All India
Backward Class Bank Employees Welfare Association and Ors33, the
Hon'ble Apex Court reiterated the legal position and held that ".... An
order against the person without impleading him as a party and without
giving an opportunity of hearing must be held to be bad in law. The
appellants herein, keeping in view of the fact that by reason of the
impugned direction, the orders of promotion effected in their favour had
been directed to be withdrawn, indisputably, were necessary parties. In
their absence, therefore, the writ petition could not have been effectively
adjudicated upon. In the absence of the 'promotees' as parties, therefore,
it was not permissible for the High Court to issue the directions by
reason of the impugned judgment."
In the present facts of the case, recommendation was made by
HERMC for fixation of additional fee payable at the request of the
University itself. The Government issued notification accepting the
notification, permitting the Universities to collect additional fee.
Therefore, the State Government has notified the fee recommended by
the authority and the authority who made recommendation at the
request of the universities, are proper and necessary properties, since the
issue of any direction as sought by these petitioners would annul the
1996 (I) MLJ 32
1985(1) SCR 216
2004 (I) LLJ 1061 SC
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Government Orders issued by the Government and recommendations
made by the authority indirectly. In their absence, passing any order
annulling the recommendation and notifications issued by the
Government without impleading them as parties to the writ petitions is
impermissible under law. By applying the principles laid down in the
above judgments, the presence of HERMC and State is indispensable in
view of the consequences that ensue from issue of such direction, as
sought by these petitioners. Hence, they are proper and necessary
parties to the writ petitions whose presence cannot dispensed with and
consequently on this ground also, writ petitions are liable to be
dismissed for non-joinder of proper and necessary parties.
In the present batch of writ petitions, University is only claiming
payment of fee collected by the colleges/educational institutions in terms
of the recommendation made by HERMC and notified by the State
Government. When the petitioners are questioning the authority of the
University to collect such fee, the authority who made recommendation
and notified the fee are proper and necessary parties to the writ petitions,
in whose absence, the lis before this Court cannot be adjudicated
effectively and completely and their presence cannot be dispensed with.
Hence, I hold that, HERMC and the State Government are proper and
necessary parties to the following writ petitions and they are liable to be
dismissed, for non-joinder of proper and necessary parties to the writ
petitions.
Writ Petition
1. 18703/2020 41 46329/2018
2. 1438/2018 42 46375/2018
3. 2104/2018 43 46524/2018
4. 2716/2018 44 46863/2018
5. 2734/2018 45 1565/2019
6. 2756/2018 46 2587/2019
7. 2772/2018 47 8023/2021
8. 2788/2018 48 21502/2011
9. 2800/2018 49 26708/2014
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10. 2845/2018 50 26815/2014
11. 3848/2018 51 36495/2014
12. 3851/2018 52 16159/2015
13. 4875/2018 53 29596/2017
14. 5147/2018 54 29602/2017
15. 5148/2018 55 37635/2017
16. 5149/2018 56 37645/2017
17. 5391/2018 57 37665/2017
18. 5486/2018 58 37909/2017
19. 41968/2018 59 38071/2017
20. 42252/2018 60 42955/2017
21. 43589/2018 61 43001/2017
22. 43885/2018 62 29783/2018
23. 44474/2018 63 8506/2019
24. 45113/2018 64 13948/2019
25. 45342/2018 65 17028/2019
26. 46368/2018 66 20077/2019
27. 46973/2018 67 5600/2020
28. 43900/2018 68 5338/2021
29. 43921/2018 69 7479/2021
30. 44053/2018 70 9299/2021
31. 44125/2018
32. 44523/2018
33. 44646/2018
34. 44659/2018
35. 45097/2018
36. 45099/2018
37. 45133/2018
38. 45284/2018
39. 45338/2018
40. 45615/2018
Accordingly, Point No.4 is held in favour of the respondents and
against the petitioners.
In view of my finding on Point Nos. 1 to 4, writ petitions are liable
to be dismissed, as they are meritless.
In the result, writ petitions are dismissed. No costs.
Consequently, miscellaneous petitions pending if any shall stand
closed. No costs.
_________________________________________
JUSTICE M. SATYANARAYANA MURTHY
Date:18.06.2021
Note: LR copy to be marked
b/o
SP
