Dwarapu Siri vs The State Of Andhra Pradesh
2021 Latest Caselaw 3362 AP

    HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

           Writ Petition Nos.17559, 17344, 17753, 17849,
           18336, 18372, 18041, 18225 & 18045 of 2021

COMMON ORDER:

      This batch of writ petitions is a sequel to W.P.No.20052 of 2020

and batch. The earlier batch of writ petitions were filed challenging the

press release dated 20.10.2020 issued by the Secretary, Board of

Intermediate Education, Andhra Pradesh (for short, 'the BIE')

introducing online mode of admission into two year intermediate courses

in general and vocational streams in various colleges for the academic

session 2020-21.    Those batch of writ petitions mainly targeted the

manner in which the new method of admission into intermediate courses

was introduced by way of sheer press release.           It was inter alia

contended in that batch that the new method was introduced hurriedly by

issuing urgent press note stating the process of admission would

commence from 21.10.2020 and conclude on 29.10.2020 without

explaining the reasons for issuing such a hurried press note instead of

State Government introducing its intention by way of a policy through a

legislation or in the form of proper regulations or guidelines after

consulting all stakeholders. It was also contended that the lopsided new

method of admissions, curtailed the inherent right of the students to

choose the college of their choice to study intermediate and also the right

to admission of educational institutions. It was also contended, in the

proposed method of admission into intermediate colleges there was no
                                             2


possibility of evaluating comparative merit of the students because due

to the prevalence of COVID-19 pandemic, all the students in the 10th

class, were declared as passed by virtue of G.O.Ms.No.34, dated

14.07.2020. Therefore, for allotment of students to different colleges,

there is no logical basis.


2.       Per contra, learned Additional Advocate General contended, to

prevent illegal practices like collection of capitation fee etc. by certain

institutions the online system was introduced in the public interest.

Wide publicity was also given before introduction of new method.

Further multiple options were given to students to choose colleges of

their interest by applying through online method.


3.       Hearing both sides, this Court in the earlier batch of writ petitions

agreed with the argument of petitioners and allowed the batch of writ

petitions with the following direction:

          "For this academic year, it is directed that existing system of
     admission should be followed. It is left open to the State to frame clear /
     appropriate rules and regulations and thereafter introduce online method of
     admission, if it so desires, from the next academic year. Wide publicity
     and adequate advance notice must also be given for the same before it is
     introduced. The effort made by the State for the degree courses is
     supported by a G.O. with rules / regulations. Follow up action like
     helpline access; online admission committees etc., are formed in all the
     districts etc., such action is not there in the present case."

4.       While so, the admissions into intermediate studies for the

academic year 2021-22 is concerned, the BIE, pursuant to the A.P.

Government's Memo No.1477968/1E-A2/2021-1 dated 10.08.2021

ratifying the BIE's draft Notification and instructing it to take further

action, issued the Notification for online admissions 2021-22 in respect
                                     3


of two year intermediate course in general and vocational streams

through online mode in the Government / private aided / private unaided

/ cooperative, incentive junior colleges and composite degree colleges in

the State.


       (a) The Notification inter alia reads that the admission into two

year intermediate courses will be taken up through online mode, for

which the eligibility criteria is to pass 10th class examination (SSC)

conducted by the Board of Secondary Education, A.P. or equivalent

examination, and the order of the merit of the candidates shall be on the

basis of grade/marks secured in each subject in the qualifying

examination.     A flow chart is provided in the notification for the

candidates to follow online admission process. The notification was

issued by the Secretary of BIE with the approval of the Competent

Authority.

       Challenging the above notification issued by the BIE, the above

batch of writ petitions is filed.


5.     W.P.No.17559/2021 is filed by Central Andhra Junior College

Managements Association, whereas the other writ petitions are filed by

the students.


6.     The BIE filed common counter in W.P.No.17559/2021.


7.     Heard arguments of learned senior counsel Sri B.Adinarayana Rao

representing Sri Srinivasa Rao Bodduluri, counsel for petitioner in
                                     4


W.P.No.17559/2021; learned senior counsel Sri Vedula Venkataramana

representing   Sri    M.Sri     Vijay,   counsel    for   petitioner    in

W.P.No.17344/2021; Sri Nalluri Madhava Rao, counsel for petitioners

in W.P.Nos.17753, 17849 & 18041 of 2021; Sri A.S.K.S. Bhargav,

counsel for petitioner in W.P.No.18336/2021; Sri G.Sai Narayana Rao,

counsel for petitioner in W.P.No.18372/2021; Sri Medamalli Balaji,

counsel for petitioners in W.P.No.18225/2021; Sri P.Rajasekhar, counsel

for petitioners in W.P.No.18045/2021, and Sri Dushyant Dave, learned

Senior Counsel representing Smt. Elipe Shantha Sree, Standing Counsel

for the BIE; learned Government Pleader for School Education

representing the respondents.

8. Impugning the notification, Sri B.Adinarayana Rao addressed

the following arguments:

(i) Firstly, in the State of A.P. there are 2679 junior colleges

functioning apart from few vocational and other special colleges. Of

them 470 are Government colleges, 180 are aided junior colleges and

2029 are unaided junior colleges. The total number of seats in 1st year

intermediate available in all the colleges is 9,43,008. In the Academic

Year 2021-22, 6,24,367 students who studied SSC were all passed by

virtue of the order of the Government due to the prevalence of COVID-

19 pandemic. Thus, there is a surplus of 3,18,641 seats and as such there

can be no apprehension that the private colleges may encash the demand

and collect exorbitant fees from the students. As such there is no need to

introduce any novel method of admission such as online admission for

intermediate studies. He would submit that all along, the junior colleges

including private colleges used to conduct admissions by themselves by

giving due consideration to merit, rule of reservation and by charging

only reasonable fee. Considering the demand and supply, there was

absolutely no need for interference by the Government or BIE with the

conventional method of admission being followed in all these years.

However, the BIE hurriedly issued a press note dated 26.07.2021 stating

that admissions for intermediate studies will be held in online mode after

issuing notification. The said press note was followed by a circular

dated 30.07.2021 inviting the participation in Zoom meeting. As there

were lakhs of stakeholders, the said Zoom meeting was not practically

possible and hence, the gathering of opinion was only an eyewash.

Therefore, the justification for change of policy and wide publicity

inviting views of the stakeholders as perspicuously predicated in the

earlier judgment are woefully absent in the present instance and

therefore, the notification is liable to be set aside for violation of the

directions earlier given.

(ii) Secondly, questioning the legal validity of the notification, he

argued, the BIE claimed that it exercised the power conferred under

Section-99 (1)(a) and 99 (1)(b) (xxv) of the A.P. Education Act, 1982 to

issue the notification. Learned Senior Counsel pointed out that the said

provision gives power to the Government to make rules to carry out all

or any of the purposes of the said Act including regulation for admission

into educational institutions. It is unknown how the BIE usurped the

power of Government and issued notification. Since notification issued

by BIE is not backed by the statutory power, same is liable to be set

aside on this ground alone.

(iii) Thirdly, learned Senior Counsel argued that the BIE claimed

power under Rule 14(7) of the A.P. Education Institutions

(Establishment, Recognition, Administration and Control of Institutions

of Higher Education) Rules, 1987 (vide G.O.Ms.No.29, Education

(Rules), 05.02.1987) (for short "A.P. Education Rules, 1987").

Referring to Rule 14(7) he argued that the said rule only prescribes that

the admission of students shall be as per the Rules of admission

prescribed by the Government / BIE and while making admissions rule

of reservation shall be followed and the Principal will be liable for

violations. Thus, the said rule does not explicitly provide for the exact

manner as to how admissions ought to be made and there is also no

mention about online admission procedure, rightly because by then the

internet was not invented and popularized and therefore, the rules cannot

be expected to envisage about online mode of admission. He thus

argued that the said rule is at best an imposition of stipulation on

institutions during the admissions and it cannot be taken as a source of

power of BIE to make APOASIS guidelines.

(iv) Thirdly, referring to relevant laws in vogue in the State of

Andhra Pradesh on the subject education, learned Senior counsel would

argue that Section-99 of the A.P. Education Act, 1982 do not confer the

power on BIE to take up online admissions for intermediate studies,

rather the said section gives rule making power to the State Government.

(v) Referring to Sections 9 and 12 of the A.P. Intermediate

Education Act, 1971 (for short "A.P. Act, 1971") he would argue that

Section-9 confers certain powers on BIE as enumerated in the said

Section. However, those powers do not comprehend the power to

admission in intermediate studies i.e., allotment of students to different

colleges by its own. Similarly, Section-12 confers power on BIE to

make regulations with the prior approval of the Government to carry out

the purpose of the said Act. Those regulation making powers do not

include the subject i.e., BIE's power to admit students in different

colleges through online mode. He argued that at best the BIE may

submit its views in the form of a report to the Government concerning to

intermediate education in the State including the mode of admissions to

intermediate studies. However, A.P. Act, 1971 do not confer any

express power on BIE to take up the admissions by itself.

(vi) Then referring to the A.P Educational Institutions

(Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983,

learned Senior Counsel would argue that the said Act alone through

Section- 15 gives power to the Government to make rules regulating the

admissions. However, so far no rules were framed by the Government

as far as intermediate education is concerned. He would further argue

that as per Section-3 of the said Act, subject to the rules that may be

made in this behalf, admission into educational institutions shall be

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

or on the basis of ranking assigned in the entrance test conducted by

such authority and in such manner as may be prescribed. If the

Government intends to regulate the admission into intermediate studies

through this Act, it has to follow Section-3 and accept the marks

obtained by the students in the qualifying examination i.e., 10th class or

on the ranks assigned in the entrance test to allocate the seats.

Admittedly, no common entrance test was conducted and due to

COVID-19 pandemic, all the students of the 10th class were passed by

the Government. Therefore, there is no possibility to decide the merit of

the students for allotment of seats. Contrary to the stipulation in

Section-3, APOASIS guidelines say that on the basis of the marks given

by the respective schools to their students, online admissions will be

made which criteria is a direct affront on the legal provision.

(vii) Nextly, referring to the A.P. School Education Regulatory

and Monitoring Commission Act, 2019, learned Senior Counsel argued

that the said Act provided for constitution of a Commission to take steps

for ensuring coordinated and integrated development of school education

in the State. Under Section-9, the Commission was given power to take

steps to ensure the standards of educational institutions including

admissions in accordance with the guidelines issued by the Centre or

State Governments from time to time. The Act was amended to bring in

the intermediate education and junior colleges into the frame work of the

Act. Though the monitoring commission has been constituted and

functioning, as of now the Commission is yet to make any

recommendations regarding the admissions into intermediate course.

Learned Senior Counsel thus argued that none of the wide

spectrum of laws gave any power or authority exclusively to BIE to take

up the admissions into intermediate studies through online method by

itself. Such a power is vested under relevant laws upon the Government

either to enact a law or make rules and regulations on the aspect of

admissions into the intermediate studies subject to the rights of students

and private institutions. Since the impugned notification is devoid of

statutory bolster and a direct affront on the fundamental rights of the

students and private unaided educational institutions, the same is liable

to be quashed.

9. In the same lines, learned senior counsel Sri Vedula Venkata

Ramana in W.P.No.17344 of 2021 argued that the impugned notification

will not sustain in the eye of law since, except the State, the BIE is not

clothed with any statutory powers to regulate the admissions into

intermediate studies by online method. The State Government is

concerned, if it proposes to introduce any such method, it shall lay down

the policy mentioning the objectives it sought to achieve through the said

policy and the power it drawn from any statute to announce and execute

the said policy. Further, such policy shall be issued in the form of a

legislation or rules or regulations and pronounced in the name of the

Government by the Governor. All these vital procedural protocols are

totally absent in this case and hence, on this ground alone the impugned

notification is liable to be set aside. In this regard he placed reliance on

P.H. Paul Manoj Pandian v. P. Veldurai1.

(a) Nextly he argued that for another reason also the notification

falls to ground, inasmuch as, in earlier batch of writ petitions, this Court

gave liberty to the State Government to frame clear/appropriate rules and

regulations and thereafter to introduce online method of admission if it

so desires from the next academic year. Emphasizing the word "State",

he argued that the Court gave such a liberty only to the State

Government and by no stretch of imagination, the BIE can draw any

power to issue notification in this regard. He further argued, even the

State also, while lying down the policy cannot usurp the fundamental

rights of students to choose their own colleges and institutions of their

right to admit the students. It can only lay down broader guidelines but

cannot take the admissions unto itself.

Other petitioners adopted the above arguments.

10. In oppugnation, learned Senior Counsel Sri Dushyant Dave,

representing BIE argued that the COVID-19 pandemic, which has spread

perhaps all over the globe, has not only taken precious lives of the world

population but also posed unforeseen challenges to mankind. While the

brunt of its blow was massive on the medical field, economy,

transportation, industry, banking sector, tourism etc., its lethality was no

less on the education too. For fear of rapid spread of a deadly virus,

(2011) 5 SCC 214 = (2011) 2 SCC (Civ) 681, 2011 SCC OnLine SC 623

educational institutions were closed, examinations were postponed and

ultimately cancelled throughout the country. The only silver lining was

that tutelage was conducted in online mode. Since the COVID-19

disease was not totally eradicated but only mitigated, thanks to

vaccination, the State Government of A.P. following the dictum

"extraordinary challenges require extraordinary solutions", invented the

method of online admissions into the intermediate studies for the

Academic Year 2021-22 keeping in view the safety of the students and

parents, who otherwise, have to physically run around different colleges

in the State to fetch seats unmindful of contacting the deadly disease.

Learned senior counsel reiterated that with the said avowed object, the

State has laid down the noble policy but not before conducting much

exercise. The State Government have constituted a High power

committee consisting of about 10 members who are experts in the field

of education headed by a Chairperson of retired IAS cadre to submit its

report on the procedure needs to be adopted to award grades to the 10th

class students for declaration of the results of SSC examinations 2021

due to cancelation of public examinations. The Committee suggested

that basing on the formative assessment marks and other factors, grades

could be given. Accordingly, grades were fixed and 10th class students

were passed. Basing on those grades, the Government now seeks to allot

seats in the intermediate studies through online mode of admissions.

Thus, in the larger public interest and to bring transparency, learned

senior counsel would submit, the Government have introduced the

policy of online admissions for intermediate course. The BIE issued

notification basing on the directions of the State Government. The State

derived the power under the provisions of the Intermediate Education

Act, 1971, the A.P. Education Act, 1982 etc. Therefore, the policy

decision of the State cannot be reviewed under writ jurisdiction. To

buttress his point that writ jurisdiction will not be aimed against policy

decisions of the State, he placed reliance on following decisions:

2) Rai Sahib Ram Jawaya Kapur v. The State of Punjab2

3) Vasavi Engineering College Parents Association v. State of Telangana3.

4) The State of Maharaashtra v. Lok Shikshan Sansatha4

5) State of Punjab v. Ram Lubhaya Bagga5

6) Academy of Nutrition Improvement v. Union of India6

7) State of U.P. v. D.K.Singh7

8) Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth8

He thus prayed to dismiss the batch of writ petitions.

11. The point arises for consideration is:

Whether the Notification dated 10.08.2021 issued by the BIE/4th

respondent styled as "Andhra Pradesh Online Admission System for

Intermediate Stream (APOASIS) - 2021-22" can be treated as the policy

decision of the Andhra Pradesh State Government and is valid in the eye

of law?

[1955] 2 SCR 225 = MANU/SC/0011/1955, AIR 1955 SC 549

(2019) 7 SCC 172 = MANU/SC/0862/2019, AIR 2019 SC 4731

1971 (2) SCC 410

(1998) 4 SCC 117

(2011) 8 SCC 274

AIR 1987 SC 190

1984 (4) SCC 27

I. POLICY DECISION OF EXECUTIVE - SCOPE OF JUDICIAL REVIEW

12. While it is the contention of the petitioners that the BIE which is

only one of the organs of Department of Education of Andhra Pradesh

Government but not the Government by itself, has, without backing of

statutory power of relevant laws, following a press note, issued

impugned notification introducing online mode of admissions into

intermediate stream in utter violation of governing laws, the contra

argument on behalf of the respondents is that the impugned notification

is an outcome of directions issued by the State Government to BIE for

public purpose to safeguard the health of the students and their parents

from exposing themselves to the deadly Corona virus while rushing to

different colleges for intermediate admissions and hence, the notification

is the policy decision of the State Government and same is not amenable

to judicial review.

13. The issue of Court's judicial review on administrative actions is

no more res integra, as, cardinal principles have been enunciated on

judicial review in WEDNESBURY's case. In the case of Associated

Provincial Picture Houses Ltd. v. Wednesbury Corporation9, the

King's Bench of Supreme Court of Judicature has postulated three

principles when judicial review can be exercised against administrative

actions. The plaintiff in that case is a Cinema theatre in Wednesbury

[1948] 1 KB 223

Corporation who sought to obtain from the Court a declaration that the

condition imposed by the defendant Corporation while issuing licence

for Sunday Performances in the plaintiff's cinema theatre to the effect

that no children under the age of 15 years shall be admitted to any

entertainment, whether accompanied by an adult or not was ultra vires.

The action was dismissed by the lower Court and the plaintiff went to

the Supreme Court. Upholding the discretionary power of the

Wednesbury Corporation, the Supreme Court held that when the statute

gave discretion to an administrator to take a decision, the scope of the

judicial review would remain limited. It was observed that the

interference was not permissible unless one or other of following

conditions were satisfied namely (1) order was contrary to law or (2)

relevant factors were not considered or (3) irrelevant factors were

considered or (4) the decision was one which no reasonable person could

have taken.

14. The above principles were consistently followed in U.K and since

the India has adopted Anglo-Saxon jurisprudence, this Country also

assimilated those principles into its administrative law. It should also be

kept in mind that in 1983, Lord Diplock in Council for Civil Services

Unions v. Minister for Civil Services10 (called the GCHQ case)

summarized the Wednesbury principles as "illegality, procedural

irregularity and irrationality". He opined that "proportionality" may

serve as the additional principle in future. The Wednesbury principles

1983 (1) AC 768

and the additional principle of doctrine of proportionality were well

delineated in Union of India v. G. Ganayutham (Dead) by Lrs11 and

Om Kumar and ors. v. Union of India12.

In the subsequent years, when the executive actions, be in taking

policy decisions or entering into contracts, or taking disciplinary actions

were challenged, the constitutional Courts in this country invariably

tested the validity of those decisions on the touchstone of Wednesbury

principles.

15. To quote a few, in Sterling Computers Limited v. M & N

Publications Limited13, on judicial review against Government

contracts, the Apex Court observed that in the matter of contracts liberty

to assess the overall situation for the purpose of taking decisions has to

be given to the authorities. If the decision is bonafide and not arbitrary

or whimsical, they need to be upheld on the principle laid down by

Justice Holmes that "Courts while judging the constitutional validity of

executive decisions must grant certain measure of freedom of 'play in

the joints' to the executive." Their action however has to be tested in the

light of Article 14 of the Constitution.

(a) In Federation of Railway Officers Association v. Union of

India14, it has been held by the Apex Court that on matters effecting

policy and requiring technical expertise, Court would leave the matter

for decision of those who are qualified to address the issues. Unless the

AIR 1997 SC 3387 = MANU/SC/0834/1997

AIR 2000 SC 3689 = MANU/SC/0704/2000

(1993) 1 SCC 445 = MANU/SC/0439/1993

MANU/SC/0231/2003 = AIR 2003 SC 1344

policy or action is inconsistent with the constitution and the laws or

arbitrary or irrational or abuse of the power, the Court will not interfere.

(b) In H.B.Gandhi, Excise and Taxation Officer-cum-Assessing

Authority, Karnal v. M/s. Gopinath & Sons15, it was observed by the

Apex Court that judicial review is not directed against the decision but is

confined to decision making process. It is not an appeal from a decision

but a review of the manner in which the decision is made.

16. In the decisions cited by Sri Dushyant Dave, learned Senior

Counsel for the BIE also, above proposition of law was reiterated.

(a) In Vasavi Engineering College's case (3 supra), the Apex

Court observed that the Court in the garb of judicial review, cannot

usurp the jurisdiction of decision maker and make decision itself.

(b) In State of U.P. v. D.K.Singh's case (7 supra), the Apex Court

held that the question whether the course of study in Post Graduate

Medical institution should commence in January or July of a year is not

the concern of the Court as it depends on various factors to be

considered by concerned authorities.

(c) In the State of Maharashtra's case (4 supra), the order of

Deputy Director of Education rejecting the application for opening new

schools was challenged and allowed by High Court. In the appeal, the

Apex Court setting aside the said order held that so long as there is no

violation of any fundamental right or the principles of natural justice it

1992 Supp (2) SCC 312

was not for the High Court to lay down the policy that should be adopted

by the education authorities in granting permission for starting schools.

(d) In Maharashtra State Board's case (8 supra), in exercise of

the powers conferred by Section 36 of the Maharashtra Secondary and

Higher Secondary Board's Act, the State Board has framed the

Maharashtra Secondary and Higher Secondary Education Boards

Regulations, 1977. As per Regulation 104, the Board held that the

candidate can apply for verification of the marks but no revaluation of

answer books or discloser or inspection of the answer books can be

made. When the same was challenged, the High Court of Bombay

upheld the challenge but the Apex Court held that the regulation was

well within the powers of the Board.

(e) In State of Punjab' case (5 supra), the Supreme Court held

that the change of policy effected by the Government in respect of

reimbursement of medical expenses to the employees is beyond the pale

of judicial review because the change of policy was on account of

financial constraints of the State.

(f) In Academy of Nutrition Improvement's case (6 supra), in

the matters concerning to Science of Medicine where the Courts are not

equipped to resolve technical issues, scope of judicial review is not

there.

The above jurisprudence on scope of judicial review against

executive actions was emerged from Wednesbury's principles and

refined in due course. There is absolutely no demur or confrontation

with the above principles. However, the prime issue in this writ petition

is whether the impugned notification issued by the BIE can be treated as

the policy decision of the State Government or not. If the answer is in

negative, it has then to be tested, whether BIE has statutory authority to

issue notification on its own.

II. THE IMPUGNED NOTIFICATION - POLICY DECISION OF THE EXECUTIVE GOVERNMENT OR FIAT OF BIE - ITS LEGAL VALIDITY

17. The executive powers and functions of a Government were

delineated by the Hon'ble Apex Court in Rai Sahib Ram Jawaya

Kapur's case (2 supra) observed thus:

"14. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. xxxxx

15. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.

The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State."

Thus, as can be seen, the residual governmental functions remain

after legislative and judicial functions which are myriad, can be called as

executive functions. Facilitation of education to the citizens and

determination of policies in that regard also can be said to be executive

functions of an elected Government. As per scheme of the Constitution,

Article-154 declare that the executive power of the State shall be vested

in the Governor and shall be exercised by him either directly or through

officers subordinate to him in accordance with the Constitution of India,

whereas Article 163 says that there shall be council of Ministers with the

Chief Minister at the head to aid and advice the Governor in the exercise

of his functions. Then, Article-166 proclaims that all the executive

actions of the Government of a State shall be expressed to be taken in

the name of the Governor. Thus a conjunctive study would make us

know that the Governor who is the executive Head of the State shall

function with the aid and advice of council of Ministers and all the

executive functions shall be expressed to be taken in the name of the

Governor. This aspect has been reiterated by the Hon'ble Apex Court in

Samsher Singh v. State of Punjab16 and observed thus:

"156. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal Constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations"

(a) Be that it may, in reality the council of Ministers will lay down the

policies either in the form of legislations or rules or regulations and get

the assent of the Governor. In other words, an elected Government

discharges all the executive functions in the name of the Governor.

AIR 1974 SC 2192 = MANU/SC/0073/1974 = (1974) 2 SCC 831

18. In the above context, when the impugned notification is

scrutinised, it is styled as "Notification for Online Admissions 2021-22"

said to be issued by the Secretary in the name of Board of Intermediate

Education, Andhra Pradesh with the approval of Competent Authority.

This notification, as stated supra, introduces online admission system for

intermediate stream. 'Competent Authority' means that authority as

defined in Section 2(12) of the Andhra Pradesh Education Act, 1982.

On perusal, one cannot convincingly say that the subject notification was

issued by the Government of Andhra Pradesh as it does not contain the

requisite characteristics - firstly, it has not emanated from the office of

Ministry of Education laying a policy; secondly, it is neither in the form

of a legislation nor a rule or regulation; thirdly and most importantly, the

notification was not expressed to be taken in the name of the Governor,

rather, it was issued by the Secretary of BIE with the approval of

Competent Authority defined under the Education Act. Therefore, I

have no hesitation to hold that the impugned notification was issued only

by the BIE in its own assumptive power. Hence, its legal validity has to

be tested.

III. DELEGATION OF POWERS TO BIE - WHETHER VALID

19. Referring to Memo No.1477968/IE-A2/2021-1, dt: 10.08.2021, it

is argued by the respondents that under Section-99 (1)(a)(xxv) of A.P.

Education Act, the Government have power to make rules to carry out

the purpose of the said Act and the Government and in this case, the

Government have delegated the said rule making power to the BIE and

therefore, the impugned notification is legally valid.

(a) Section-99 (1)(a)(xxv) reads thus:

"99. Power of Government to make rules:- (1)(a) The Government may by notification make rules to carry out all or any of the purposes of this Act.

(xxv) the regulation for admission into educational institutions of pupils for the academic course, private study and other special courses and the attendance thereat;"

The above provision would no doubt show that the Government

have power to make rules regulating for admission into educational

institutions. The definitions of terms 'educational institution' under

Section 2(18) and 'college' under Section 2(11) would cumulatively

show that junior colleges recognized by or affiliated to A.P Board of

Intermediate Education will also come under the domain of educational

institutions.

(b) The above Memo No.1477968/IE-A2/2021-1, dt:10.08.02021

would depict, as if, the Principal Secretary to Government issued the

said memo stating that the Government have examined and approved the

draft notification for admission of the students into two year

intermediate course through online mode and therefore, the Secretary,

BIE can take further necessary action in the matter. It is claimed that

pursuant to such delegation, the impugned notification dated 10.08.2021

was issued by BIE by specifically referring in the notification that it was

issued by exercising the power conferred under Section-99 of the A.P.

Education Act, 1982. To this extent there is no demur.

(c) However, it should be noted that one of the prime contentions of

the petitioners is that right to pursue in a college of the choice of the

students is their fundamental right and so also right to carry on trade or

business is the fundamental right of educational institutions guaranteed

under Article 19(1)(g) of Constitution and such rights cannot be taken

away by virtue of the notification. It is also their argument that in the

impugned notification the Government have not laid down any policy as

to why such a notification was brought forth and further, the notification

is silent as to how the rights of the petitioners are balanced or protected.

It is also their contention that when it matters effecting the fundamental

rights of third parties, the State Government has to come up with a

legislation or rule or regulation with clear cut policy and balancing the

rights and interests of all the stakeholders. Abdicating such pious

legislative obligation, the State cannot delegate its power to its agency.

20. I find considerable force in the above argument of the petitioners.

Generally, there is a presumption in favour of the constitutionality of

delegated legislation and it is only when there is a clear violation of

constitutional provision or of the parent statute, the Court would declare

it to be unconstitutional. (vide Hinsa Virodhak Sangh v. Mirzapur

Moti Kuresh Jamat17). Through Section 99 of the Education Act, no

doubt the legislature has delegated upon the Government the power to

make rules on different subjects enumerated in that Section. One of such

subjects on which rules could be made is the 'regulation for admission

MANU/SC/1246/2008 = AIR 2008 SC 1892

into educational institutions'. However, one cannot even remotely

presume that the delegatee under the garb of delegation can make rules

which militate against the constitution or other laws. In other words, it is

expected, the rules framed would sub-serve the purpose of the parent Act

and do not thwart the other statutes and constitution. Viewing in that

angle when Chapter VI of the Education Act is perused, we can

understand that establishment of educational institutions is one of the

purposes of the Act. Section 18 says that the Government in order to

provide adequate facilities for imparting various types of education in

the State, establish and maintain the educational institutions and also

permit any local authority or a private body of persons to establish

educational institutions and maintain them. Section 20 lays down the

method of granting permission for establishment of educational

institutions. Thus, the parent Act i.e., A.P. Education Act itself, apart

from Article 19(1)(g) of the Constitution, recognized the right of private

bodies to establish educational institutions. So, when rules are made in

exercise of the power conferred under Section 99, the Government have

to carefully consider whether the rights of the stakeholders are in any

way affected. Perhaps, since the rights of third parties are involved,

while granting the rule making power to Government, the legislature

ordained through Section 99(3) that immediately after the rules were

made and notification was issued, the same shall be laid before house of

the State legislature. So, having regard to the power and responsibility

couched together in Section 99, I am of the considered view that the

executive Government who is the delegatee, itself should make rules by

laying clear-cut policy showing the objective sought to be achieved

through the concerned rules and manifesting how a balance has been

struck among the rights of different stakeholders, instead of making a

sub-delegation in favour of BIE by abdicating its pious obligation.

Further, in the common order in W.P.No.20052/2020 & batch, a

learned Judge of this Court while observing that the rationale for the

change should be justified and clearly visible else it should be termed as

arbitrary, left open to the State to frame clear / appropriate rules and

regulations and thereafter introduce online method of admissions, if it so

desires, from the next Academic Year, by giving wide publicity and

advance notice. In that view also the State Government cannot bye-pass

its responsibility and simply issue a Memo approving the draft prepared

by the BIE and direct its Secretary to take up further necessary action

which amounts to truancy. There the sub-delegation is legally

unsustainable and non-est.

IV.   WHETHER         BIE    HAS     INDEPENDENT          STATUTORY
      POWER:

21. Then the BIE claims to draw power under Rule 14(7) of the A.P.

Educational Institutions (Establishment, Recognizing, Administration

and Control of Institutions of Higher Education) Rules, 1987. The said

Rule says that the admission of students into various courses shall be as

per the rules of admission prescribed by the government / Board of

Intermediate Education / University concerned from time to time and

while making admission, the rule of reservation shall be scrupulously

followed and the intake of students shall not exceed the prescribed limits

of strength. The Principal of institution shall be personally held

responsible for violation of rules of admission. As argued by the

petitioners, the said Rule mainly says that the admission of students shall

be as per the Rules of admission and it is more an imposition of

stipulation on institutions during the admission but it cannot be treated as

a source of power by BIE to make rules. Even assuming that it can

frame rules of admission by virtue of Rule 14(7), still it has to lay a

policy divulging the objective sought to be achieved and how the interest

of different stakeholders is safeguarded etc. In the impugned

notification, we do not find any policy or the object with which the said

notification was issued much less discussing about method of

safeguarding the rights of the stakeholders. It is no doubt learned Senior

Counsel Sri Dushyant Dave argued that the purpose of issuing

notification is to safeguard the health of students and their parents from

exposing to Corona virus while rushing to different colleges for

admission. I am afraid the purpose and objective must be spelt out in the

notification but it cannot be supplemented subsequently. In this regard it

is apposite to ruminate the observation of Justice V.R.Krishna Iyer in

Mohinder Singh Gill v. The Chief Election Commissioner, New

Delhi18.

MANU/SC/0209/1977 = AIR 1978 SC 851

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji A.I.T. 1952 S.C. 16.

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older:

A Caveat."

22. Thus, to sum up, the impugned notification cannot be treated as

delegation of power and authority by the executive Government to BIE

to frame rules, rather the notification is an outcome of BIE's order. The

notification is not sustainable in the eye of law since it has no statutory

back up; not divulged the objective sought to be achieved and not

addressed the corresponding rights of the stakeholders. Further, as

rightly pointed out by the petitioners, when the students were

automatically passed in the qualifying examination (SSC) in view of

prevalence of COVID-19 pandemic, it is incomprehensible as to how the

admissions in intermediate will be made on merit basis. It is no doubt

submitted on behalf of the respondents that on the basis of marks

obtained in internal examinations, ranks will be allotted basing on which

admissions will be made. This method is also bereft of logic as there is

no common test for all the students for awarding marks in internal

examinations and there is no normalization procedure in that regard.

Therefore, the impugned notification is liable to be set aside. It is

submitted on behalf of respondents that already about few lakhs of

students submitted online applications for admissions in the intermediate

course. However, that cannot be a ground to sustain an otherwise

lopsided notification.

23. Accordingly, the Writ Petitions are allowed setting aside the

impugned notification for online admission 2021-22 issued by the Board

of Intermediate Education, A.P. It is directed that for the present

Academic Year 2021-22, the existing system of admissions into

intermediate stream should be followed. However, this order will not

preclude the State Government from making in future, the

legislation/rules/regulations on the subject 'admissions into intermediate

stream' by clearly laying down the policy, keeping in view the

corresponding rights of the stakeholders and giving wide and advance

publicity. No costs.

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

closed.

_________________________ U. DURGA PRASAD RAO, J 06.09.2021 krk / mva