St. Marys Group Of Institutions ... vs The Commissioner Of Technical ...
2022 Latest Caselaw 2506 AP

       HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

                    Writ Petition No.18247 of 2015

ORDER:

The petitioner questions the acts of respondents in not

providing the benefit of fee reimbursement to the 50% of the seats

filled up by the management under the minority quota for the

Academic Year 2014-15 by virtue of the impugned Circular Memo

No.1/Convenor/POLYCET 2014 dated 18.09.2014 issued by the 3rd

respondent and the action of the 3rd respondent in treating the

admissions made by the petitioner under the minority quota as "spot

admissions" instead of treating the same as "Convenor quota" vide

proceedings No.LR No.POLYCET-2014/Inst. Spot Admins

/Engineering /& D.Pharmacy / Convenor dated 15.11.2014 as illegal,

arbitrary and consequentially direct the 3rd respondent to approve the

admissions made by the petitioner under 50% minority quota as the

one under Convenor category and direct 4th respondent to grant

benefit of fee reimbursement to the students admitted by the

petitioner.

2. The petitioner's case succinctly is thus:

(a)The petitioner is a technical institution got approval by the

AICTE for the Academic Year 2014-15 for the undergraduate, post

graduate and diploma engineering courses. The approved intake of

the petitioner institution is mentioned in para 4 of the writ affidavit.

(b) While so, G.O.Ms.No.66, Social Welfare (SWEDN2)

Department dated 08.09.2010 provides for grant of fee reimbursement

for the eligible candidates who were admitted basing on the merit in

the POLYCET entrance examination.

(c) In respect of the polytechnic courses, the State Government

issued guidelines for POLYCET - 2014 prescribing the eligibility

criteria, method of admission and allotment of seats. As per those

guidelines, all the eligible candidates who appeared and obtained rank

in POLYCET-2014 will be given admission based on the merit in

both the Government and private polytechnic institutions run by

private engineering colleges. The petitioner institution is a private

engineering college.

(d) While so, though the Government guidelines do not provide

for any bifurcation of the seats in minority institutions for admissions

in polytechnic courses, the 3rd respondent issued impugned circular

dated 15.09.2014 specifying at clause 5(b) that in respect of private

minority institutions, 50% of polytechnic seats will be filled by the

Convenor and 50% of the seats are to be filled by the management for

which there will be no fee reimbursement. The petitioner is aggrieved

by the said condition of not providing fee reimbursement for 50%

seats filled up by the Management under Minority Quota. Its

contention is that in respect of polytechnic courses, all the seats are to

be filled as the Convener counseling seats only. There shall not be

any Management Quota for polytechnic courses as in the case of other

technical courses. All the seats that are filled by the convenor shall be

eligible for fee reimbursement as per the scheme of the Government

and the seats that are un-filled and handed over by the petitioner to the

Management are being filled under spot admission by the

Management which shall also be eligible for fee reimbursement.

(e) Clause-4(I)(iii) of G.O.Ms.No.66 deals with class of

admissions. The classes enumerated in such clause are management

quota and spot admissions. The admissions undertaken by the

petitioner in 50% minority college quota are not comprehended under

the said clause. Therefore the admissions undertaken by the petitioner

college under minority college quota on the basis of merit in

POLYCET are also entitled to get benefit of fee reimbursement.

(f) 50% seats ear-marked for management quota are also in fact

a part of the convenor quota. In view of the right of the minority

colleges under Article-30(1) of the Constitution of India, those 50%

seats were ear-marked to the college for being filled-up by the college.

In that view, there is no management quota in POLYCET course and

the entire intake is a convenor quota and they cannot be construed as

management quota to deprive the fee reimbursement. It is only those

leftover seats of the convenor quota which are subsequently filled-up

by the management under spot admissions which are not eligible for

fee reimbursement.

(g) Further, while treating 100% admissions in non-minority

institutions as convenor seats, but contrary to it, treating 50% seats in

minority institutions as convenor seats is un-constitutional and

untenable hence depriving the benefit of fee reimbursement in respect

of 50% of the seats filled-up by the Management under minority quota

is un-constitutional. Hence the writ petition.

3. Respondent Nos.1 to 3 filed counter and opposed the writ

petition.

(a) Through the impugned circular Memo No.1/Convenor/

POLYCET-2014, dated 15.09.2014, the 3rd respondent /Convenor

issued certain guidelines to all the Principals of the Polytechnic

Institutions to enable them to fill the vacancies during the institutional

spot admissions. Pursuant to it the petitioner issued spot admissions

notification to fill-up the convenor left over seats under 50% Minority

Quota seats for the academic year 2014-15 and made admission as per

the schedule. The petitioner also submitted the list of the students

admitted for ratification. Thus, it goes without saying that the

petitioner has no grievance on the impugned notification dated

15.09.2014. Further the examination for the 1st year diploma were

also over.

(b) Petitioner is a private minority un-aided polytechnic

institution. Petitioner's contention that the guidelines issued for

admissions do not provide any bifurcation of the seats in minority

institutions in the context of making admissions for polytechnic

courses is incorrect. On the other hand, clause 5(b) of the impugned

circular clearly lays down that 50% of seats shall be filled by the

convenor and 50% seats are to be filled-up by the Management for

which there will be no fee reimbursement. The said bifurcation of

50%:50% has been made following the G.O.Ms.No.135, Education

(TE.1) Department, dated 19.04.1994. Further, no fee reimbursement

for the Management Quota is mentioned following the G.O.Ms.No.66,

Social Welfare (SW.EDN.2) Department, dated 08.09.2010.

Therefore, the guidelines issued by the 3rd respondent are applicable

and the guidelines related to Engineering Courses are not applicable to

the Diploma Courses.

(c) The further contention of petitioner that all 100% seats have

to be filled up by the Convenor is not correct. Above all, the aspect of

fee reimbursement to the students admitted in diploma courses is not

dealt with by the respondents 1 to 3 but it is the policy of the Social

Welfare Department of the Government which laid down policy

through G.O.Ms.No.66 that all the students admitted by the convenor

under convenor quota alone are eligible for Post Matric Scholarship

Scheme (PMSS). It is submitted that G.O.Ms.No.66, Social Welfare

(SW.EDN.2) Department, dated 08.09.2010 is not in force by virtue

of issuing of G.O.Ms.No.115, Social Welfare (EDN) Department,

dated 30.11.2019 as amended in G.O.Ms.No.28, Social Welfare (Edn)

Department, dated 16.06.2020. The respondents thus prayed to

dismiss the writ petition.

4. Heard, Sri Sricharan Telaprolu, learned counsel for the

petitioner and learned Government Pleader for Higher Education

representing respondents. Both the learned counsel reiterated their

pleadings in their respective arguments.

5. The point for consideration is whether there are merits in the

writ petition to allow?

6. POINT: This Court bestowed its anxious consideration to the

pleadings and arguments. The crux of the case of the petitioner is that

though the guidelines issued by the State Government for conducting

polytechnic common entrance test-2014, (POLYCET-2014) have not

provided any bifurcation of the seats in minority institutions in the

context of admissions for polytechnic courses, however the 3rd

respondent issued impugned circular dated 15.09.2014 wherein at

Clause-5(b), he specified that in the private minority institutions, 50%

of the polytechnic seats (diploma seats) will be filled-up by the

convenor and the remaining 50% of the seats have to be filled-up by

the Management for which there will be no fee reimbursement. The

petitioner's case is that all the intake seats of an un-aided minority

polytechnic institute shall be regarded as convenor-seats and those

seats filled-up by the convenor shall be provided with fee

reimbursement. It is only those seats which were left over un-filled

by the convenor and later filled-up by the management under spot

admission may not be provided with fee reimbursement. His

emphasis therefore is that all the intake seats in a minority institution

shall be regarded as convenor seats so that all the seats filled-up by

the convenor will get fee reimbursement except those which were un-

filled by him. His further case is that in fact there is no division like

convenor quota and management quota. In so far as minority

institutions are concerned, such a division is made only as an

understanding to safeguard the interest of the minorities but not to

deprive the fee reimbursement to the 50% of seats filled-up by the

Management. He thus carps the clause-5(b) of impugned circular

dated 15.09.2014 as illegal.

7. In oppugnation, learned Government Pleader for Education

defends the impugned circular, particularly clause-5(b) on the main

thrust of argument that the Convenor POLYCET / 3rd respondent has

to incorporate clause-5(b) in the impugned circular in view of

G.O.Ms.No.135, Education (TE.1) Department, dated 19.04.1994 and

G.O.Ms.No.66, Social Welfare (SW.EDN.2) Department, dated

08.09.2010. In expatiation, learned Government Pleader would argue

that while G.O.Ms.No.135 lays down that admissions of students into

minority unaided polytechnic colleges have to be filled-up in the ratio

of 50:50 by the Competent Authority and Management respectively,

G.O.Ms.No.66 ordains that post matric scholarship scheme (PMS)

will be granted only to those students admitted by the Convenor under

his quota. The stipulations in the above two G.Os are incorporated in

clause-5(b) of the circular. The petitioner who followed the said

circular and completed the admissions of the students allotted to

Management Quota, cannot now turn round and contend otherwise.

8. Clause-5(b) of the impugned circular memo No.1/Convenor

/POLYCET/2014, dated 15.09.2014 is the bone of contention. It

reads thus:

"(b) In Private Minority Institutions 50% of Polytechnic seats (Diploma seats) will be filled by the Convenor and 50% of seats are to be filled by the Management for which there is no fee reimbursement."

As already stated supra, while petitioner fulminates the

bifurcation of the seats between Convenor and Management, the 3rd

respondent while supporting such bifurcation takes shelter under the

two G.Os. Of course the petitioner makes a counter attack on

G.O.Ms.No.135 on the ground that in view of the law subsequently

laid down by the Hon'ble Apex Court in the case of T.M.A Pai

Foundation v. State of Karnataka 1 and also as clarified in Islamic

Academy of Education v. State of Karnataka 2 wherein it is

observed that the scheme framed for admissions and fixing of the fee

in Unnikrishnan JP v. State of Andhra Pradesh3 was not correct

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

earlier judgments, is no more valid and in operation. He would argue

that seats cannot be bifurcated in the ratio of 50:50 basing on the out

dated G.O.Ms.No.135. Consequently the fee reimbursement cannot

be limited to the seats filled-up by the Convenor alone. Learned

Government Pleader controverted the aforesaid line of argument

submitting that G.O.Ms.No.135 is very much in force and applicable

because the said G.O imbibed the guidelines given in T.M.A Pai

Foundation case (supra 1).

2002(8) SCC 481

2003(6) SCC 697

AIR 1993 SC 2178

9. Thus on a careful consideration, what surfaces is that though the

petitioner outwardly impugns the circular Memo No.1/Convenor

/POLYCET/2014, dated 15.09.2014, however, in essence, he attacks

the legality and validity of the two G.Os i.e., G.O.Ms.No.135 and

G.O.Ms.No.66. It is germane to note that though such attack was

indirectly made, however the petitioner has not specifically

challenged the validity and applicability of G.O.Ms.No.135 and

G.O.Ms.No.66 in the present writ petition. In my considered view,

without such a specific challenge, the vires of G.O.Ms.Nos.135 and

66 cannot be decided by this Court and consequently, the innocuous

prayer otherwise made by the petitioner to treat the admissions made

by the petitioner under 50% Minority Quota as under Convenor

category and to provide benefit of fee reimbursement to the students

admitted by the petitioner cannot be considered.

10. Therefore, this writ petition which is not maintainable in its

present form is dismissed by giving liberty to the petitioner to

challenge the validity and applicability of G.O.Ms.No.135, Education

(TE.I) Department dated 19.04.1994 and G.O.Ms.No.66, Social

Welfare (SE.EDN.2) Department, dated 08.09.2010 or its amended

G.Os on the subject with a consequential prayer to treat all the seats of

petitioner's institution as Convenor Quota seats and grant fee

reimbursement to the students admitted not only by the Convenor but

also by the petitioner except the seats unfilled and made over by

Convenor to the petitioner, if the petitioner is 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 krk

HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

Writ Petition No.18247 of 2015

13.06.2022

krk