Vignan Educational Development ... vs The State Of Andhra Pradesh
2023 Latest Caselaw 4915 AP

     IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
                                   &
         HON'BLE MR. JUSTICE T. MALLIKARJUNA RAO

                   WRIT APPEAL No.670 of 2022


Vignan Educational Development Society,
Bearing Regd. No.163/86, Rep. by its
Director, N.H.16, Viswakarma Nagar,
Edugundlapadu Village, Ongole - 523 262,
Prakasam District, A. P. and another.

                                                        ...Appellants
            Versus

The State of Andhra Pradesh,
Rep. by its Special Chief Secretary,
Higher Education Department,
Secretariat, Velagapudi,
Amaravathi, Guntur District.
                                                     ...Respondent

Counsel for the appellants : Mr. M. Pitchaiah.

Counsel for the respondent : GP for Higher Education.

Dt.:12.10.2023

PER DHIRAJ SINGH THAKUR, CJ

1. The present writ appeal under clause 15 of the Letters Patent

has been preferred against the judgment and order, dated

01.08.2022 passed in W.P.No.9218 of 2020.

HCJ & TMR, J

2. Briefly stated the material facts are as under:

2.1 The Andhra Pradesh State legislative assembly, enacted The

Andhra Pradesh Private Universities (Establishment and

Regulation) Act, 2016 (for short "the Act"), with the object of

providing high quality, research oriented and industry relevant

higher education. Section 3 (1) of the said Act, vested the

Government with the power to permit the establishment of a

University by inclusion of a name and location of a University, the

name and address of the sponsoring body and the details of its

registration in the Schedule to the Act.

2.2 Section 3 (8) of the Act envisages that each such University

shall be a body corporate by the name included in the Schedule and

shall have perpetual succession and common seal with power,

subject to the provisions of this Act, to acquire and hold property, to

contract and shall, by the said name, sue or be sued.

2.3 Section 6 of the Act envisages that a body desirous of

establishment of a private University shall make an application to

the Government, containing, among other things, an outline of the

purpose and vision of the proposed private University, the proposal

and the Project Report in such manner, with such particulars and

along with such a fee as may be prescribed.

HCJ & TMR, J

2.4 Section 7 of the Act further envisages the submission of

additional information such as the financial resources of the

sponsoring body, the name, the location and headquarters of the

proposed University, the track record experience and expertise of

the sponsoring body in specific disciplines, plan for pre-

commencement activities, including in academic and non-academic

areas, the proposed fee structure and the concessions or rebates in

fee and scholarships to the core students from economically poor or

socially backward families, including Scheduled Caste and

Scheduled Tribes, other backward classes and physically

challenged students etc., as also proposed approach and initial plan

for academic and research excellence, including accreditations to

be sought.

2.5 Section 8 (1) envisages the constitution of an expert

committee by the Government consisting of such persons as may be

prescribed, to examine the application received under Section 6

and 7. Section 8 (2) further envisages that the expert committee

shall consider the proposal and project report based on the

information given under Section 6 and 7 and recommend or

otherwise whether the proposal to set up a private University is

acceptable and whether the sponsoring body is competent to set up

and manage the university.

HCJ & TMR, J

2.6 Section 10 (1) envisages that, after the receipt of

recommendations of the expert committee, the Government shall,

as far as possible within a period of 30 days, take a decision on

accepting, rejecting or seeking modifications in the proposal and

project report. While the proviso to Section 10 (1) envisages that

the Government may consider the additional measures as

recommended by the expert committee under Section 9.

2.7 Section 10 (2) envisages that the Government shall inform

the sponsoring body about its decision within 10 days of taking

such decision, through a Letter of Intent, a Letter of Regret, or a

letter seeking additional clarifications.

2.8 Sections 10 and 11 of the Act, for facility of reference are

reproduced here under:

"10. Letter of Intent - (1) After receipt of the recommendations of the Expert Committee under Section 8, the Government shall, as far as possible within a period of 30 days, take a decision on accepting, rejecting, or seeking modifications in the proposal and project report;

Provided that Government may consider the additional measures as recommended by the Expert Committee under Section 9;

(2) The Government shall inform the Sponsoring Body about it's decision within 10 days of taking such decision, through a Letter of Intent, a Letter of Regret, or a letter seeking additional clarifications;

HCJ & TMR, J

(3) The Government, while issuing the Letter of Intent, shall require the Sponsoring body to fulfill such terms and conditions as recommended by the Expert Committee. If the letter from the Government seeks additional clarifications, the Sponsoring Body may provide the same and that shall be considered as a re- submission of the Application;

(4) The Sponsoring body shall fulfill the terms and conditions and report compliance to the Government within a period as prescribed from the date of issue of Letter of Intent.; Provided that Government may further extend the term for a maximum period of one year not exceeding six months at a time if it is satisfied that the sponsoring body has taken substantial steps towards setting up of the University;

(5) On receipt of compliance report, the Government shall, within a period of one month, request the Expert Committee, constituted under Section 8 or constitute another similar Committee, to verify the compliance report within a period of 30 days.

11. Establishment of University by amending Schedule - If the Government is satisfied that the Sponsoring body has complied with the conditions of Letter of Intent and on the specific recommendations of the Expert Committee, it shall endeavor within a maximum period of seven months for inclusion of the name of the University in Schedule with details of its location(s) 1["issuing a notification amending the schedule"]."

3. In the backdrop of the aforementioned legal provisions, the

petitioners filed an application for setting up a University. The

application along with relevant material was referred for

consideration of the expert committee as envisaged in terms of

Section 8 of the Act. The expert committee after having considered

the application, the object and the purpose mentioned in the HCJ & TMR, J

application, recommended to the Government that a Letter of

Intent may be issued to the sponsoring body for establishing a

proposed Greenfield Private University.

4. The Government vide communication dated 22.01.2019,

issued a Letter of Intent for establishing the proposed Greenfield

Private University and their preferred location at Om Sri

Gayatryviswakarma University, Edugundlapadu, Ongole, Prakasam

District or anywhere else subject to the following terms and

conditions:

"6.1. The Sponsoring Body shall adhere to all the norms/conditions as stipulated in the Andhra Pradesh Private Universities (Establishment and Regulation) Act 2016, including the following:

1.1. As per Section 3 (2): Location 1.2. As per Section 3 (3)Greenfield and unitary in nature and without powers to affiliate any colleges 1.3. As per Section 3 (4)One campus and under exceptional circumstances, two additional campuses (if Government intend to) 1.4. As per Chapter VI of the said Act Regulation and Accreditation of University

2. The objectives of the University shall be aligned with the overall objectives and vision of the State, as stated in the preamble of the said Act, 2016.

3. As per Section 10 (4) of the said Act 2016the Sponsoring Body shall invariably fulfill all its commitments as contained in its project report submitted to the Government, including the HCJ & TMR, J

information recorded above, as per the timeframe fixed in the project report. The Sponsoring Body shall also conform to the financial projections made in the project report.

4. The Sponsoring Body shall report compliance to the Government within a period of one year from the receipt of the Letter of Intent.

5. The Sponsoring Body may consider the feasibility of starting classes from the Academic Year 2019-20.

7. The Letter of Intent to the Sponsoring Body is issued subject to the condition that they will procure their own land.

8. The Sponsoring Body is requested to furnish a response to the Letter of Intent within 15 days of receipt of this communication."

5. The petitioners immediately, thereafter, addressed a

communication dated 01.02.2019 in the following terms:

"Government are also pleased to inform us there in, that the Sponsoring Body may consider the feasibility of starting classes from the academic year 2019-20.

In this connection we are expressing our gratitude to Government for issuing Letter of Intent.

In compliance with Government Letter of Intent, I am to state that our educational society have considered and decided to start classes from the Academic Year 2019-20, as have established required infrastructure and recruiting qualified faculty etc. An admission notification will be issued for admission to various courses for the Academic year 2019-20."

HCJ & TMR, J

6. It appears that based simply upon the Letter of Intent and

pursuant to the communication dated 01.02.2019, the petitioners

initiated the process of issuing advertisements for admission to the

University. In the advertisements, the petitioners reflected that the

University was recognised under Section 2 (f) of the University

Grants Commission Act, 1956. The Government of Andhra Pradesh

immediately on coming to know about this fact addressed a

communication dated 07.08.2019, to the Founder Chairman and

Director of Vignan Educational Development Society/petitioner,

informing them that the advertisements issued by the University

contained wrong information and also informed the

petitioner/Society that such an Act was unlawful. The

petitioner/Society was therefore directed to withdraw the process

of admissions immediately as also to withdraw the advertisements

that have been issued, the petitioner/Society was also informed that

failure to do so would entail serious consequences.

7. It is in that backdrop that the appellants preferred

W.P.No.9218 of 2020 before the learned Single Judge, challenging

the said communication.

8. The learned Single Judge in the judgment and order

impugned held that the Letter of Intent could not be treated as a

full-fledged permission and that a decision ought to have been taken HCJ & TMR, J

by the Government based upon the communication dated

01.02.2019, addressed by the petitioners to the Government and

that, if the Government did find that the University possessed all

the infrastructure and wherewithal to start the classes from the

academic year 2019-20 and had complied with the terms and

conditions prescribed in the Letter of Intent, the petitioners ought

to have been informed accordingly.

9. The writ petition was disposed of with a direction to the

Government/respondent

i) That the Government shall if satisfied that the

compliance was shown by the petitioners, permission be

granted within three (3) weeks from the date of receipt of

a copy of the order to the petitioners to start classes for

academic session 2022-23 and include the name of the

2nd petitioner/University and the schedule within the

statutory period.

ii) If the respondent was not satisfied with the

compliance shown by the petitioners, it shall intimate by

a letter within two weeks from the date of receipt of copy

of the order indicating therein, particulars of the

compliance to be made by the petitioners and shall grant

time for such compliance. Further on that such HCJ & TMR, J

compliance, it shall permit the petitioners to start classes

and include the name of the 2nd petitioner/University in

the schedule of the Act.

10. Counsel for the appellants vehemently urged that the view

expressed by the learned Single Judge was not sustainable

inasmuch as once the Letter of Intent had been issued in favour of

the petitioners and the petitioners having been permitted to start

classes from the academic year 2019-20, there was no question of

directing the Government yet again to feel satisfied as to whether

the University had shown compliance with the conditions

mentioned in the Letter of Intent before permitting the petitioners

to proceed and make admissions in the University.

11. It was urged that what was important was the issuance of a

Letter of Intent and that the amendment of the Schedule was

nothing but a consequential/ministerial Act on the part of the

Government, which direction ought to have been given by the writ

Court without questioning the right of the appellant/University to

make admissions. It was also urged that the Government had no

power to impose terms and conditions while issuing the Letter of

Intent and that in the absence of any terms and conditions having

been prescribed by the expert committee, no new terms and HCJ & TMR, J

conditions could have been prescribed by the Government, which

had acted beyond the powers vested in it in terms of the Act.

12. Counsel for the appellants would submit that Section 11 of the

Act did not apply to the facts and circumstances of the present case,

as the expert committee had not imposed any terms and conditions

and therefore, there was no occasion for the Government to satisfy

itself regarding the compliance and further that the Section 11

would apply only when the Letter of Intent was based upon terms

and conditions prescribed in the Letter of Recommendation of the

expert committee.

13. Counsel for the respondents on the other hand, took a firm

stand that expert committee had not given any unconditional

clearance to the appellant/Society.

14. With reference to the reply affidavit, it can be seen that the

Letter of Intent was issued to the petitioner/Society after verifying

the finances and obtaining clearance from the Chartered

Accountant.

15. It was urged by learned counsel for the respondents that the

Letter of Intent was conditional and that the appellants were not

entitled to start classes without obtaining approval of the

compliance report. It was also urged that it would be not public HCJ & TMR, J

interest as also the interest of the students that the appellants are

permitted to conduct the admission process only after satisfying

the Government that there was a compliance of all the necessary

conditions contained in the Letter of Intent. In any case it was

urged that the appellants would claim to function as a University

and make admissions in that capacity after a formal inclusion of its

name, location and address in the Schedule and not otherwise. It

was urged that a Letter of Intent does not by itself have the effect of

recognising any institution as a University as per the Scheme of the

Act.

16. We have heard learned counsel for the parties.

17. Admittedly, the application of appellant No.1 to establish a

private University was filed before the Government, which in turn

referred it to an expert committee in terms of the provisions of the

Act. Apparently, the expert committee in its recommendations

recorded the minutes of the meetings which reads thus:

"Deferred until following - CAs approval for, balance sheet for sponsoring body, latest audited financial statement of sponsoring body; After necessary approvals, Department of Higher Education, Government of Andhra Pradesh to take a call."

18. It also appears that the Government after verifying the

financials and obtaining clearance from the Chartered Accountant HCJ & TMR, J

took steps to issue a Letter of Intent to appellant No.1. The Letter of

Intent further mandated that the sponsoring body, the appellant

No.1 should fulfil all its commitments as contained in its project

report submitted to the Government as per the time frame fixed in

the said report. The sponsoring body/appellant No.1 was also

required to conform to the financial projections made in the project

report, not only this the Letter of Intent clearly stated that the

same was issued subject to the condition that the sponsoring body

would procure their own land. Apart from this, the Letter of Intent

did envisage the sponsoring body to consider the feasibility of

starting classes from the academic year 2019-20.

18.1 Interestingly however, even when the sponsoring body filed

its response vide communication dated 01.02.2019, it made no

reference at all to any of the conditions which were contained in the

Letter of Intent and confined itself only to expressing gratitude to

the Government for issuing Letter of Intent and further

communicated to the Government its intention to start classes for

the academic year 2019-20, on the ground that they had established

the required infrastructure and where recruiting qualified faculty

etc., and that admission notification would be issued for admission to

various courses for the said academic year 2019-20. In seeking a

response within 15 days from the date of receipt of the HCJ & TMR, J

communication containing the Letter of Intent the intention was not

just to seek the approval of the sponsoring body to start classes for

the academic year 2019-20 but also its promise to fulfil its

commitments as contained in the project report. The condition with

regard to procuring their own land etc., which was conspicuously

missing in the response submitted by the appellant No.1 and instead

in hot haste the appellant No.2 proceeded to issue advertisements

for purposes of making admission, claiming it to be a legally

established University recognised by the University Grants

Commission.

19. We are not at all convinced by the argument of the learned

counsel for the appellants that the issuance of a Letter of Intent by

itself converted an applicant into a University as the scheme of the

Act clearly does not envisage it so. The Letter of Intent that was

issued in the present case to the sponsoring body/appellant No.1

was only a Letter of Intent for establishing the proposed Greenfield

Private University which did not carry with it in the least, the effect

of actually registering it as a University and admitting the same to

the rights and privileges which otherwise a University is entitled to

enjoy in terms of the Act.

HCJ & TMR, J

20. The scheme of the Act envisages that the expert committee

has to consider each proposal and project report with reference to

the following factors:

a) financial soundness and assets of the sponsoring body and its

ability to set up the infrastructure of the proposed University.

b) background of the sponsoring body, such as its experience in

the field of education, its credibility and general reputation,

c) potentiality of the programmes and courses to be offered

which are not only of conventional nature but also in tune

with the contemporary requirements of emerging branches of

learning and relevant to various development sectors and to

the society in general.

d) appropriateness of the objectives of the proposed University

against overall goals and objectives of the State.

21. Needless to say that what is placed before the expert

committee inter alia is the proposal and the project report based

upon which the expert committee is expected to make

recommendations. The Government upon receipt of the

recommendations from the expert committee is entitled to insist

upon the sponsoring body to fulfil such terms and conditions as

have been recommended by the expert committee, which the

sponsoring body is under obligation to fulfil and report compliance HCJ & TMR, J

to the Government, within such period as may be prescribed from

the date of issuance of Letter of Intent. Upon receipt of the

compliance report the Government in terms of Section 10 (5) of the

Act is required to request the expert committee constituted under

Section 8 of the Act or may constitute another similar committee to

verify the compliance report within a period of 30 days. It is only if

the Government is satisfied, in terms of Section 11 of the Act, that

the sponsoring body has complied with the conditions of Letter of

Intent and on the specific recommendations of the expert

committee that it is required to make an endeavour for inclusion of

the name of the University in the Schedule within a of the period of

seven (7) months by way of amendment of the Schedule.

22. In the present case admittedly, there has not been any

satisfaction recorded by the Government as regards the fulfilment

of the various terms and conditions in the Letter of Intent dated

22.01.2019 and it was only in that context had proceeded to issue a

direction to the Government to permit the petitioners to start

classes from the academic year 2022-23 and to include the name of

petitioner No.2/University in the Schedule within the statutory

period, if the Government was satisfied that the petitioners had

shown compliance to the terms and conditions of the Letter of

Intent and also the statutes.

HCJ & TMR, J

23. Needless to say that appellant No.2 would be entitled to make

admissions and claim itself to be a University only if the name of the

appellant No.2 was formally included in the Schedule appended to

the Act, in terms of Section 3 of the Act.

24. We are also of the opinion that the Government is entitled to

satisfy itself as to whether the sponsoring body has complied with

the conditions of the Letter of Intent which satisfaction in the

present case is conspicuously absent. Needless to say that the

universities are not envisaged to be incorporated merely on the

basis of project reports prepared on paper much less on the basis of

Letters of Intent based upon the basis of proper project reports

except where the Government is satisfied based upon reports yet

again from the expert committee that compliance had been shown

as per the projections made in the reports on ground which would

include among others infrastructure and faculty requirements.

25. For the reasons aforementioned we do not find any merit in

the present Letter Patent Appeal which is accordingly dismissed.

No costs.

Pending miscellaneous applications, if any, shall stand closed.

DHIRAJ SINGH THAKUR, CJ T. MALLIKARJUNA RAO, J SSN HCJ & TMR, J

HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON'BLE MR. JUSTICE T. MALLIKARJUNA RAO

WRIT APPEAL No.670 OF 2022

(per Dhiraj Singh Thakur, CJ)

Dt:12.10.2023

SSN