Chaitanya Educational Society ... vs The State Of Andhra Pradesh
2021 Latest Caselaw 4002 AP

               HON'BLE SRI JUSTICE U.DURGA PRASAD RAO


                             Writ Petition No.11327 of 2021

ORDER:

The petitioners seek writ of mandamus declaring the action of the 2nd

respondent in not considering the representations dated 24.05.2021 and

25.05.2021 submitted by the petitioners to afford an opportunity of personal

hearing to the petitioners for the purpose of fixation of fee for the block

period 2021-21 to 2022-23 for B.Ed courses, as illegal, arbitrary,

discriminatory and unconstitutional and consequently direct the 2nd

respondent to forthwith afford an opportunity of personal hearing to the

petitioners and to consider, process and notify the fee for the aforesaid block

period.

2. Petitioners' case succinctly is thus:

The 1st petitioner is an institution imparting training in B.Ed. Courses

and it has got all the requisite approvals from AICTE, permissions from

Government of Andhra Pradesh and affiliation from the University.

The right of management to establish and administer college including

the right to fix the fee has been upheld by the Hon'ble Apex Court in a

number of decisions such as TMA Pai v. State of Karnataka1 and Islamic

Academy of Education v. State of Karnataka2. While so the 2nd

respondent issued notification inviting proposals from the private un-aided

professional colleges to submit the relevant data for fixation of fee for block

(2002) 8 SCC 481 = MANU/SC/0905/2002

(2002) 6 SCC 697

period 2020-21 to 2022-23. The petitioners have entered the data as per

guidelines in the previous year and they did not want to increase the fee in

the block period and so the petitioner did not enter any data. They made a

representation dated 25.05.2021 seeking permission to enter the college

name for the present year's list as per the last year fee fixation. The

petitioners have registered themselves but not uploaded the proposal online

and not freeze the data. The petitioners were not called for personal hearing.

It is further submitted that when the Regional Director, Southern Regional

Committee, National Council for Teacher Education (NCTE), Delhi issued

proceedings withdrawing the recognition granted to the petitioners'

institution, they filed W.P.No.9841 of 2021 wherein this Court passed order

dated 18.05.2021 and suspended the impugned proceedings and directed the

respondent Nos.2 to 4 therein to consider the case of the petitioners for their

inclusion in the EDCET-2020 counselling without reference to the orders of

the withdrawal of the recognition. It was made clear that in the event the

respondent Nos.2 to 4 grant permission to the petitioner to participate in

EDCET-2020 counselling, it should be made clear to the students that their

admission would be subject to the result of the writ petition. Thereafter the

petitioners approached the Andhra Pradesh State Council for Higher

Education (for short 'APSCHE') for fee fixation. However, the said Council

directed the petitioner to approach Andhra Pradesh Higher Education and

Monitoring Commission (APHERMC)/2nd respondent for fixation of fee

saying that after fixation of fee by APHERMC, they will include the

petitioners in EDCET-2020 counselling. The petitioners' further case is that

in some instances where managements failed to upload the data online and

failed to freeze the data but paid the processing charges they were given an

opportunity to upload the data by paying 50% of processing charges. Thus

they were given chances. So far as petitioners are concerned, they have not

uploaded the data within the stipulated period of time, not paid the requisite

fee within the cut of date. If the petitioners are not allowed to attend

personal hearing, no fee will be fixed in respect of the courses being run by

the petitioners institutions and petitioners would not be entitled to claim any

fee for the entire three academic years, therefore, writ petition to direct the

2nd respondent to consider the representations of the petitioners for fixation

of fee for block period 2020-21 to 2022-23 for B.Ed. courses.

3. Respondent No.2 filed counter inter alia contending thus:

It is contended that the petitioner colleges are not entitled to any relief

for and they have not performed their duties diligently. There is any amount

of negligence on their part in not submitting the fee proposals before starting

of academic year 2020-21 and even after the notification dated 20.04.2020

issued by the 2nd respondent Commission and in spite of extending the time

to submit the fee proposals up to the month of July, 2020.

It is further submitted that the 1st petitioner is imparting education for

the courses of B.Tech., B. Pharmacy, M.Tech, M. Pharmacy and B.Ed

Courses. The petitioner society has established Engineering College namely

Indira Institute of Technology Sciences at Markapur and running B.Tech.,

M.Tech., Polytechnic (2nd shift), B.E/B.Tech Lateral Entry. The 1st

petitioner society is also imparting education in the Pharmacy courses under

the name and style of Chaitanya College of Pharmacy at Markapur. In fact,

for those courses maintained by the same society, the petitioner society/

colleges approached the 2nd respondent Commission and submitted the fee

proposals by paying processing fee in time and got notified fee by the 1st

respondent Government vide G.O.Ms.Nos.47 and 48, Higher Education

(E.C) Department dated 23.12.2020. Therefore, those colleges were

included for counselling and admissions in Convenor Quota were made by

the APSCHE permitting the colleges to collect the fee as notified by the

Government well in advance of the admissions. The petitioner colleges are

very much aware of the ongoing process of determination of fee structure for

B.Ed and M.Ed colleges but the petitioner colleges have not approached the

2nd respondent Commission in time by submitting the fee proposals and

therefore, no admission were made under the Convenor Quota by APSCHE

and the academic year of 2020-21 has commenced and therefore, the

petitioner colleges are not entitled to submit the fee proposals at that

juncture even by paying the penalty as no admissions can be made at that

point of time for the academic year 2020-21. However it is open for the

petitioner colleges to get affiliation renewed for the academic year 2021-22

for entitling them to get admission and collect the minimum fee notified for

the B.Ed colleges for the block period 2020-21 to 2022-23 in G.O.Ms.No.9,

Higher Education (E.C) Department dated 20.02.2021.

The petitioners did not submit the required data called for by the 2nd

respondent Commission under 31 schedules but approached for fee

determination by way of representation dated 25.05.2021 in the middle of

the academic year 2020-21. Therefore, the petitioner colleges cannot blame

or complain for any inaction on the part of the 2nd respondent Commission.

There is no illegality or arbitrariness on the part of the 2nd respondent for

gross default committed by the petitioner colleges.

It is further contended that there are 471 Private unaided B.Ed

colleges in the State of Andhra Pradesh. The 2nd respondent Commission

issued notification under Rule 8 of the APHERMC Rules, 2019 in two

newspapers dated 21.04.2020 and also placed the notification on the website

of the Commission calling upon the private unaided educational institutions

imparting B.Ed., M.Ed and other courses to submit their fee proposals under

31 schedules. Pursuant to the said notification the petitioner college did not

submit any fee proposals in response to the said notification but submitted

the fee proposals for the courses imparted by them like B.Tec., B. Pharmacy,

M.Tech and M. Pharmacy pursuant to the same notification. The

Notification time was extended periodically up to 31.07.2020. thereafter all

the B.Ed and M.Ed colleges were given personal hearing between

20.10.2020 to 22.10.2020. Accordingly, fee was determined for all B.Ed

colleges who have approached the 2nd respondent Commission in time by

submitting their fee proposals for the block period 2020-21 to 2022-23 as

per the minutes of the Commission dated 09.11.2020.

Thereafter the 1st respondent Government notified the fee structure

and in fact all the 434 colleges who have submitted fee proposals and paid

processing fee were included in the counselling by the APSCHE and

admissions under Convenor Quota were conducted from 26.02.2021 to

03.03.2021 and 16.03.2021 to 17.03.2021 and concluded. The petitioner

colleges approached APSCHE for inclusion in the counselling without

getting the fee determined by the 2nd respondent Commission and notified by

the 1st respondent Government pursuant to the orders dated 18.05.2021

passed by this Hon'ble Court in W.P.No.9841/2021 in which the

Commission is not a party and therefore there was no occasion for APSCHE

to include the petitioner colleges in the counselling for the academic year

2020-21 without there being any fee notification by the Government and as

the admissions were already concluded on 17.03.2021. Since the petitioner

colleges approached 2nd respondent Commission belatedly after conclusion

of the EDCET-2020 counselling for the academic year 2020-21. Therefore

the petitioner colleges have to get the admission by obtaining approval from

NCTE and affiliation from the concerned University and collect the

minimum fee as per G.O.Ms.No.9 dated 02.02.2021 for the balance block

period for the years 2021-22 and 2022-23. Respondents thus prayed to

dismiss the writ petition.

4. Heard arguments of Sri Seetaram Chaparla, learned Senior Counsel

representing Sri K. Gani Reddy, learned counsel for petitioners and learned

Government Pleader for Education representing respondent No.1 and Sri

C. Sudesh Anand, learned Standing Counsel representing respondent No.2.

5. While admitting that pursuant to the notification dated 20.04.2020

issued by the APHERMC/2nd respondent calling for educational institutions

to furnish required data and make fee proposals, the petitioner B.Ed

institutions did not submit the proposals, learned counsel Sri Seetaram

Chaparla would, however, argue that the non-uploading of data online was

not with any ulterior motive but under a bonafide belief that since the

petitioner institutions did not want to seek for enhancement of the fee which

they charged in the preceding block period, they did not require to upload

any data. Learned counsel would submit, the petitioners were under the

bonafide belief that their B.Ed institutions would be recommended by the

Government for counselling for filling-up of Convenor Quota. However,

since that was not done, they have submitted representations dated

24.05.2021 and 25.05.2021 but the respondent authorities did not respond to

their representations. He would submit that the petitioner is ready to pay

penalty and other usual charges and therefore the respondent authorities may

be directed to consider the representations of the petitioner and fix the fee

for the remaining part of the block period 2020-21 to 2022-23. He relied

upon Kits Minorities Welfare and Educational Society v. The State of

Andhra Pradesh3.

6. Per contra, Sri C. Sudesh Anand, learned Standing Counsel would

argue that the petitioner educational establishments are imparting various

courses i.e., B.Tech, B. Pharmacy, M.Tech, M. Pharmacy, B.Ed and M.Ed

through different colleges. Pursuant to the Notification dated 20.04.2020

the same petitioner institution uploaded the data for B.Tech, B. Pharmacy,

M.Tech and M. Pharmacy colleges and their fee was fixed and admissions

were also completed. However, for the reasons best known to them, the

petitioner did not choose to upload the data so far as B.Ed and M.Ed

colleges are concerned, in spite of the stipulated time was extended till

31.07.2020. Since the data was not at all uploaded, the question of fixing

the fee for petitioners' institutions did not arise and similarly the petitioner

2017 (3) ALD 134 = MANU/AP/0821/2016

institutions were not considered for counselling. Further, the petitioner filed

W.P.No.9841/2021 and got stay of proceedings withdrawing the recognition

of the petitioners' educational society. The said writ petition is still pending.

Learned counsel vehemently argued that in the present set up of fact, it is not

possible for fixation of fee for the block period 2020-21 even if the

petitioner is ready to pay penalty. Therefore, only course open for the

petitioner is to get admissions by obtaining approval from NCTE and

affiliation from the concerned University and collect the minimum fee as per

the G.O.Ms.No.9, dated 22.02.2021 for the balance block period of 2021-22

and 2022-23. He argued that the judgment relied upon by the petitioner

would not come to petitioners' rescue because the petitioners in that case

have uploaded data, but some of them did not furnish the full information

and some of them have not pressed the freeze button. In those

circumstances their writ petitions were allowed with certain conditions.

However, that is not the case here and admittedly the petitioners' institution

did not furnish any data qua Notification issued by the 2nd respondent. He

thus prayed to dismiss the writ petition.

7. The point for consideration is whether the non-uploading of data by

the petitioners' institutions with reference to Notification dated 20.04.2020

would, legally disentitle them to seek for fixation of fee structure for their

colleges?

8. Point: Free education was a constitutional dream. Article-45 of the

Constitution of India envisages that a State shall endeavour to provide earlier

childhood care and education for all children until they complete the age of 6

years. Since it was only a directive principle but not a fundamental right, it

was held in a number of judicial pronouncements that Article-45 is not

justiciable since it does not confer legally enforceable right. So also Article

21(A) says that the State shall provide free and compulsory education to all

children of the age of 6 to 14 years in such a manner as the State may by law

determine. In consonance with this Article, the Right of Children to Free

and Compulsory Education Act, 2009 was enacted by the Parliament for

providing free education to the children of the age 6 to 14 years. This is

about the providing free education to the children up to 14 years. Another

constitutional obligation is placed on the Government by Article-41 which

says that the State shall within the limits of its economic capacity and

development make effective provision for securing the right to work, to

education and to public assistance, in cases of unemployment, old age

sickness and disablement and in other cases of undeserved want. Thus this

Article, inter alia, speaks about the duty of the Government of the day to

make provision for securing education to the citizens. Thus, apart from

providing compulsory free education to children up to age 6 years to 12

years, the State has the duty to provide adequate number of educational

institutions for its citizens to study, may be on payment basis. Though

ideologically it may sound well but the State's economic capacity does not

permit to establish such number of educational institutions of all categories

to cater the educational needs of its citizens. Obviously, the Government

have to permit the private individuals, organizations and establishments to

open and maintain private educational institutions. Of course the

Government will have a regulatory role in certain sphere of activities of

those private educational institutions. It is in this context the A.P. Education

Act, 1982 has classified the educational institutions into various categories

as follows:

"19. Classification of educational institutions:- The educational institutions shall be classified as follows:

(a) State institutions, that is to say, educational institutions established or maintained and administered by the Government;

(b) Local authority institutions, that is to say educational institutions established or maintained and administered by a local authority; and

(c) Private institutions, that is to say, educational institutions established or maintained and administered by any body of persons registered in the manner prescribed."

The AP. Education Act, inter alia deals with establishment and

administration of educational institutions, grant or withdrawal of

recognition, providing grant-in-aid, maintenance of accounts, audit,

inspection and returns, taking over of management of educational

institutions etc., aspects.

9. Be that it may, in order to eradicate the practice of collecting

capitation fee and to maintain excellence in the standards of education, the

A.P. State Legislature passed an enactment called A.P. Educational

Institutions (Regulation of Admissions and Prohibition of Capitation Fee)

Act, 1983. As per Section-5 of the said act collection of capitation fee by

any educational institution is prohibited. However, as per Section-6, the

educational institutions are not barred from receiving donations. Section-7

of the act says that it shall be competent for the Government by notification

to regulate the tuition fee or any other fee that may be levied and collected

by any educational institution in respect of each class of students. No

educational institution shall collect any fee in excess of the fee notified by

the Government.

10. Thus, the above enactment would show that while capitation fee is

prohibited, payment of voluntary donations to educational institutions is

permitted. Further, the Government is empowered to regulate the tuition fee

collected by the educational institutions. It should be noted that to regulate

the fee structure in schools (in classes I to X) and Higher Educational

Institutions (education beyond the 10+2 level), two enactments i.e., A.P.

School Education Regulatory and Monitoring Commission Act, 2019 and

A.P. Higher Education Regulatory and Monitoring Commission Act, 2019

were framed. The Commissions established under the aforesaid Acts shall

inter alia monitor and regulate fee across all private schools in the State and

in higher educational institutions in accordance with the rules framed by the

State Government. The regulations on various aspects such as admission,

collection of capitation fee, tuition fee, maintenance of staff, providing

infrastructure etc., imposed by the Government on educational institutions

particularly private and un-aided institutions, naturally raised friction

between the State and the educational institutions. It is the contention of the

institutions that constitution has provided fundamental right under Article

19(1)(g) to establish and administer educational institutions and under

Article 30 to linguistic and religious minorities and therefore, those

institutions shall have full autonomy in their administration. However, it is

the contention of the State that in order to achieve uniformity in the

administration of educational institutions such as collection of fee, providing

infrastructure, value based education etc., certain regulations are imperative.

It is in this context certain important judgments have been pronounced by

Apex Court. In T.M.A Pai Foundation v. State of Karnataka4, it was

observed that the right to establish and administer educational institutions is

guaranteed under the Constitution to all citizens under Article 19(1)(g) and

26, and to minorities specifically under Article 30. All citizens have a right

to establish and administer educational institutions under Articles 19(1)(g)

and 26, but this right will be subject to the provisions of Articles 19(6) and

26(a). However, minority institutions will have a right to admit students

belonging to the minority group, in the manner as discussed in the said

judgment.

(a) In Indian School, Jodhpur v. State of Rajasthan 5, the

appellants (Managements of Private Un-aided Schools in the State of

Rajasthan) assailed the validity of Rajasthan Schools (Regulation of Fee)

Act, 2016 and Rajasthan Schools (Regulation of Fee) Rules, 2017 on the

ground that any restriction imposed through the some of the provisions in

the aforesaid act and rules inevitably limit the autonomy of the management

of private unaided schools. Agreeing with High Court of Rajasthan's

finding that Act and rules are intra vires, the Apex Court observed that the

provisions would by no stretch of imagination effect the fundamental right

of school management much less to administer the school. The provisions

were meant for to ensure that a meaningful enquiry can be undertaken by

School Level Fee Committee or the statutory regulatory-cum-adjudicatory

(2002) 8 SCC 481 = MANU/SC/0905/2002

MANU/SC/0338/2021 = 2021(3)CTC531

authority in determination of the fact whether fee structure proposed by

school management results in profiteering or otherwise. The recovery of

excess amount beyond permissible limit would result in profiteering and

commercialization. Therefore, Rule-11 was held relevant and it does not

impact or abridge the fundamental right guaranteed under Article 19(1)(g) of

the Constitution.

11. Thus, a close scrutiny of the different enactments and relevant

judgments give us the jurisprudence that while it is the fundamental right of

individuals and institutions to run the educational institutions in exercise of

right conferred under Article 19(1)(g)/26 and for linguistic and minority

institutions under Article-30, at the same time those rights are only

fundamental but not absolute and State can impose reasonable restrictions.

12. Viewing in the above angle, the main aim of A.P. Educational

Institutions (Regulation of Admissions and Prohibition of Capitation Fee)

Act, 1983 is to prohibit the collection of capitation fee. Its aim is also to

regulate the tuition fee by a statutory mechanism i.e., constituting

Regulatory Commissions under A.P. School Education Regulatory and

Monitoring Commission Act, 2019 and A.P. Higher Education Regulatory

and Monitoring Commission Act, 2019. This exercise, as stated supra is to

see that educational institutions are not commercialized or run purely for

profiteering. At the same time, it should not be the aim or wish of the

statutory machinery to deprive the educational institutions, particularly, the

unaided private educational institutions of their legitimate fee being

collected from the students for the sustenance of institution. In my

considered view, for a mere procedural lapse, an institution should not be

made to suffer. In Kits Minorities Welfare and Education Society's case

(supra 3) cited by the petitioner, the facts are more or less similar. In that

case some of the petitioner institutions have either not uploaded requisite

information correctly or failed to press the freeze button after submission of

the data online. For that fault the then State Admission and Fee Regulatory

Committee (AFRC which was ceased after formation of A.P. School /

Higher Education Regulatory and Monitoring Commissions) informed that

the petitioners were not called for personal hearing. Hence, the educational

institutions filed writ petitions. In the common order passed, a learned

Single Judge of Common High Court of Andhra Pradesh observed thus:

"16. The only issue is, whether time schedule fixed by AFRC is so inflexible that once a private unaided educational institution has not participated in the fee determination process in pursuance to the notification issued by the AFRC calling for participation in fee determination process, it cannot seek for such fixation and has to offer course of study free of charge and forfeits its right to seek fee determination for the entire block period. Though it is not specifically contended by the AFRC, it is appropriate to notice and deal with Rule 3

(vii) & (viii) of Rules, 2013. Rule 3(vii) vests power in the AFRC to determine its own procedure. Rule 3(viii) vests power in the AFRC to require private unaided professional educational institutions to furnish information by a prescribed date. However, these provisions do not hold that after a particular date, private unaided professional educational institutions cannot request for fee determination. These provisions have to be understood in the overall context of the statutory scheme. The statutory scheme is to prohibit capitation fee and impose cap on charge of fee from students, while preserving right of private unaided professional educational institutions to charge fee from students admitted to their institutions. On cumulative reading of the provisions of the Act, 1983, the Rules, 2006 and the decision of Division Bench of this court in Consortium of Engineering Colleges Managements Association, I am of the considered opinion that in the statutory framework, there is no express or implied bar against request to determine fee chargeable even after admission process is over and academic session commenced."

Thus, the lapse if any on the part of the educational institutions in

uploading data should be viewed in the overall context of statutory scheme

which was intended to prohibit capitation fee and impose cap on charging

overburdened fee from students but not to deprive their legitimate due.

Preservation of right of private unaided professional educational

institutions to charge fee from students is protected. Therefore, learned

Judge allowed the writ petitions with certain directions, of course

permitting the AFRC to suitably penalize institutions for their lapses.

13. In the instant case no doubt the petitioner institution has not

responded to Notification dated 20.04.2020 issued by the APHERMC/2nd

respondent while at the same time, the petitioner uploaded data concerning

to some of the professional colleges. Its explanation is that it did not wish

to enhance the fee for B.Ed Courses which was fixed during the previous

block period and therefore, the data was not uploaded. The explanation no

doubt is not a satisfactory one. The pertinent question is, on that ground

whether the petitioner institution should be totally deprived of collecting

fee. The sustenance of institution and future of students will then be

jeopardized. Therefore, in my considered view, petitioners' case has to be

considered by the respondent authorities holistically, of course, by suitably

penalizing for the lapses. In the block period 2020-21 to 2022-23, the 1st

year was already over and therefore, the remaining period only has to be

considered.

14. Accordingly, this Writ Petition is disposed of directing the petitioners

to submit a representation along with all necessary documents to

respondents within two weeks from the date of this order seeking to fix the

fee for the remaining part of block period i.e., 2021-22 and 2022-23, in

which case, the respondent authorities shall consider the said representation

and fix suitable fee for petitioners' institutions in accordance with

governing law and rules by imposing suitable penalty on the petitioners and

subject to petitioners obtaining approval from NCTE and affiliation from

concerned University. No costs.

As a sequel, interlocutory applications pending, if any, shall stand

closed.

_________________________ U.DURGA PRASAD RAO, J 08.10.2021

Note: Issue C.C. by 11.10.2021 (B/o) KRK