Joseph Sriharsha And Mary Indraja ... vs State Of Andhra Pradesh
2022 Latest Caselaw 2505 AP

          THE HON'BLE SRI JUSTICE U. DURGAPRASAD RAO

                         Writ Petition No.23382 of 2021

ORDER:

The petitioner education institutions seek for mandamus declaring the action

of respondents 2 to 4 in not including 100% seats of diploma courses of 2nd and 3rd

petitioner institutions in AP POLYCET 2021 counselling, as approved by

A.I.C.T.E for the Academic Year 2021-22 on an untenable premise of

G.O.Ms.No.135, Education (TE.I) Department dated 19.04.1994 as illegal,

arbitrary and violative of Articles 14 and 30(1) of Constitution of India and for a

consequential direction to respondents 2 to 4 to include 100% seats of the 2nd and

3rd petitioner institutions in AP POLYCET 2021 counselling commenced on

03.10.2021 and for such other order.

2. The petitioners' institutions are minority educational institutions. Their case

is that for the Academic Year 2021-22 the petitioner institutions were granted

approval by AICTE for different diploma courses as narrated in paragraph 8 of the

writ affidavit with specific intake capacity. While so, the 4th respondent who is the

Convenor of APPOLYCET-2021 (Admissions) included only 50% of the seats of

the petitioners institutions in the APPOLYCET-2021 counselling commenced on

03.10.2021. The intake was displayed by the 4th respondent on the midnight of

02.10.2021 which came to be known to petitioners on 03.10.2021. Immediately

the petitioners approached the respondents and submitted representations dated

05.10.2021 and 06.10.2021 requesting to include 100% intake for the said courses

in the ongoing APPOLYCET-2021 counselling. So that all the students who got

admission will get fee reimbursement. However, the respondent authorities

informed that by virtue of G.O.Ms.135, Education (TE.1) Department dated

19.04.1994, only 50% of the diploma seats are to be included in the counselling but

not 100% seats. The said reason is arbitrary and illegal for the reason that the said

G.O.Ms.No.135 was issued long back pursuant to the interim orders of the Hon'ble

Supreme Court in Shahal H.Musaliar v. State of Kerala dated 18.08.1993.

However, subsequently the Hon'ble Apex Court in the case of T.M.A. Pai

Foundation v. State of Karnataka1 as clarified in the case of Islamic Academy

of Education v. State of Karnataka2 observed that the scheme framed for

admissions and fixing of fee in Unni Krishnan J.P v. State of A.P.3 was not

correct and therefore, G.O.Ms.No.135 which was brought forth basing on the

earlier decisions is no more in operation. In that view, the respondents ought not to

have taken G.O.Ms.No.135 as a ground to limit the inclusion of only 50% seats of

petitioners' institutions in the APPOLYCET counselling instead of 100% seats.

Hence, the writ petition.

3. The respondents in their counters defended their action contending that since

the petitioners institutions were established under the minority category,

G.O.Ms.No.135, Education (TE.1) Department dated 19.04.1994 which was issued

in the context of Admission of students into minority unaided polytechnic colleges

with revised pattern of admissions from the Academic Year 1993-94, is applicable

to the petitioners' institutions so as to enable the minority institutions to get

themselves admitted the candidates of respective minority within the quota of 50%

earmarked for the minority candidates. Therefore, in terms of G.O.Ms.No.135,

50% of the seats of the petitioners' education institutions were taken up in the

Polytechnic counselling for the Academic Year 2021-22. Therefore, the

petitioner's request to include their 100% sanctioned intake in the web counselling

2002 (8) SCC 481

2003 (6) SCC 697

AIR 1983 SC 2178

of the APPOLYCET 2021 which is detrimental to the interest of the minority

candidates is unacceptable. The respondents further contended that the petitioners'

contention that in view of the law laid down by the Hon'ble Apex Court in TMA

Pai Foundation (supra 1), Islamic Academy of Education (supra 2), the

G.O.Ms.No.135 which was issued pursuant to the earlier decisions of the Hon'ble

Apex Court shall be deemed to be inoperable and no more in existence is incorrect.

It should be noted that the contents of G.O.Ms.No.135 imbibe the answer to the

question No.5 given by the Hon'ble Apex Court in TMA Pai Foundation's case

and therefore, G.O.Ms.No.135 cannot be said to be inoperative when the said G.O.

is in the lines of the judgment of Hon'ble Apex Court in TMA Pai Foundation

(supra 1). The respondents thus prayed to dismiss the writ petition.

4. Heard learned counsel for petitioners Sri SricharanTelaprolu, and learned

Government Pleader for Technical Education representing the respondents. Both

the learned counsel reiterated their pleadings in their respective arguments.

5. This Court bestowed its anxious consideration to the pleadings and

arguments. The crux of the case of the petitioner is that it is not apt on the part of

the respondent authorities, particularly 4th respondent, to limit 50% of the seats of

the petitioners' educational institutions to the APPOLYCET counselling instead of

taking up 100% seats, showing the G.O.Ms.No.135 as a ground. The petitioners'

firm argument is that in view of the law subsequently laid down by the Apex Court

in the case of TMA Pai Foundation (supra 1) and as explained in Islamic

Academy of Education (supra 2), G.O.Ms.No.135 is no more in vogue or

operation, meaning thereby the respondent authorities are liable to include 100%

seats of the petitioners' institutions without any discrimination. As already stated

supra, the traverse plea of the respondent is that G.O.Ms.No.135 cannot be

disregarded as being not in operation in view of the subsequent judgments of the

Hon'ble Apex Court, inasmuch as G.O.Ms.No.135 contained in it the principles

laid down in TMA Pai Foundation case.

6. Thus, on a careful consideration what surfaces is that the petitioners

otherwise challenge the validity or operability of G.O.Ms.No.135, Education

(TE.1) Department dated 19.04.1994 and contends in vehemence that the said G.O.

cannot be taken as a basis to fix the number of seats of the petitioners institutions

for the APPOLYCET counselling. It is at this juncture very much germane to note

that the petitioners have not specifically challenged the validity or applicability of

G.O.Ms.No.135 in the light of the law said to be laid down by the Hon'ble Apex

Court in the subsequent judgments. In my considered view, without such a

specific challenge, the vires of G.O.Ms.No.135 cannot be decided by this Court

and consequently the prayer of the petitioners to include 100% seats of their

institutions in the APPOLYCET counselling also cannot be decided.

7. Therefore, this writ petition which is not maintainable in its present form is

dismissed by giving liberty to the petitioners to challenge the validity and

applicability of G.O.Ms.No.135, Education (TE.I) Department dated 19.04.1994

with a consequential prayer to take up 100% of the seats of their institutions for AP

POLYCET-2021 counselling, if they are so advised, so as to enable this Court to

pass a comprehensive order. No costs.

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

_________________________ U.DURGA PRASAD RAO, J 13.06.2022 MVA