HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.16290 of 2007, 16585 of 2007, 17286 of 2007 AND 17363 of 2007 WRIT PETITION No.16290 OF 2007: Between: M.Ratin and another. …Petitioners AND: Government of A.P., Higher Education (EC) Department, Rep., by its Principal Secretary, Secretariat Buildings, Masabtank, Hyderabad and six others. …Respondents. WRIT PETITION No.16585 OF 2007: Between: B. Swaroop Kumar and another … Petitioners AND Government of A.P., Higher Education (EC) Department, Rep., by its Principal Secretary, Secretariat Buildings, Masabtank, Hyderabad and six others. … Respondents WRIT PETITION No.17286 OF 2007: Between: S. Namrata Salunke & another … Petitioners AND Government of A.P., Higher Education (EC) Department, Rep., by its Principal Secretary, Secretariat Buildings, Masabtank, Hyderabad and six others. … Respondents WRIT PETITION No.17363 OF 2007: Between: C.Sandeep Kumar and another … Petitioners AND Government of A.P., Higher Education (EC) Department, Rep., by its Principal Secretary, Secretariat Buildings, Masabtank, Hyderabad and six others. … Respondents ; ORDER : Counsel for the petitioner : Shri Sri M. Satyanarayana Goud. Counsel for the respondents 3 to 5 : Sri B. Adinarayana Rao Counsel for respondent No.1 : Government Pleader for Higher Education Dated:28th September, 2007 Per C.V.NAGARJUNA REDDY, J. Since a common issue in all these four writ petitions is involved, they are being disposed of by a common order. The petitioners in all these four writ petitions passed the qualifying examination, namely, two year intermediate course and are eligible for being admitted into the Engineering Course in ‘B’ category seats. The petitioners claim that though they have visited respondent Nos.4 and 5 colleges many times, they were not informed about the details of the availability of ‘B’ category seats nor they were considered for admission under the said category; that they came to know that respondent No.3 commenced the process of admission of students in ‘B’ category seats without prior notification and proper intimation to the general public. It is averred that though respondent Nos.3 to 5 have been indulging in blatant violation of the Rules framed by the Government as notified in G.O.Ms.No.53 dated 10.05.2006 in filling up ‘B’ category seats, by keeping the more meritorious candidates aspiring to join Engineering course in respondent Nos.4 and 5 colleges in dark, respondent Nos.1, 2, 6 and 7 have not been taking any effective steps to curb the malpractices of respondent Nos.3 to 5. The petitioners therefore sought for a writ of mandamus to declare the action of respondent Nos.3 to 5 in not considering their applications for admission into B.E., CScE/ECE, B.E. Mech./CScE/Mechatronics and B.E. ECE/EEE courses; in not issuing notification for admission under 20% of ‘B’ category seats into Under Graduate Professional Course in Engineering (including Technology) for the academic year 2007-2008 in respondent Nos.4 and 5 colleges in accordance with G.O.Ms.No.53 dated 10.05.2006 as illegal, unconstitutional and violative of G.O.Ms.No.53 dated 10.05.2006 and for a consequential direction to respondent Nos.1 to 3 to ensure that respondent No.3 issues notification for admission into 20% ‘B’ category seats into respondent Nos.4 and 5 colleges. The petitioners also sought for a direction not to approve the admissions being made contrary to the Rules framed in G.O.Ms.No.53 dated 10.05.2006. The Secretary of Andhra Pradesh State Council of Higher Education – respondent No.2 filed a common counter affidavit in Writ Petition Nos.16290, 1585 and 17363 of 2007 in which with reference to the allegation regarding violation of the Rules framed in G.O.Ms.No.53 dated 10.05.2006, he averred that the Rules notified in G.O.Ms.No.53 clearly stipulate that the institution shall notify the details of seats available under ‘B’ category and conduct admissions in a fair, transparent and non-exploitative manner. He further stated that the Rules neither prescribed the mode of notification nor assigned any role to respondent No.2 to regulate the procedure prescribed therein and that respondent No.2 is the competent authority notified under the said G.O. to approve the lists of the admission candidates in respect of the said quota. It is further stated that soon after completion of the admissions by the respondents’ colleges, they send the lists of candidates for approval before the notified cut of date and that at that point of time, respondent No.2 verifies whether the colleges have complied with Rule 6 (ii) of the Rules in respect of ‘B’ category seats and that irregularities, if any, in notifying ‘B’ category seats will only be verified after the lists are submitted by the colleges. On this premise, respondent No.2 averred that it was assigned with a limited role without being empowered to take regulatory measures. He further averred that the college managements are given certain liberty to fix their own modalities by notifying ‘B’ category seats in view of the observations made by the Supreme Court in TMA Pai Foundation and others v. State of Karnataka and others[1] that unaided professional institutions shall be given greater autonomy in determination of admission procedure and fee structure and the State regulation be minimal only to the extent of maintaining fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees; the modalities of notifying the seats were left to the private managements themselves and that if there is any irregularity or illegality committed by them in the admission process for ‘B’ category seats, it is for the committees constituted in pursuance of the judgment of the Supreme Court in Islamic Academy of Education and another v. State of Karnataka and others[2] to regulate such irregularities or illegalities. In its counter, the Secretary of respondent No.2 candidly admitted that none of the college managements, including respondent No.3, are not notifying the availability of ‘B’ category seats in the newspapers. On behalf of respondent No.3, Sri D. Kamalakar Reddy, Secretary and Correspondent of respondent Nos.4 and 5 filed a counter-affidavit in which he gave out the historical background of respondent No.3 institution and respondent Nos.4 and 5 colleges set up by it. For the purpose of adjudication of the dispute involved in the present writ petitions, we consider it not necessary to refer to the averments relating to the history of respondent Nos.3 to 5. With respect to the procedure adopted by respondent No.3 for making admissions into ‘B’ category seats in respondent Nos.4 and 5 colleges, he has admitted that petitioner No.1 in W.P.No.16585 of 2007 sent his letter dated 02.06.2007 by which time, admissions in to respondent Nos.4 and 5 colleges were not notified; that the usual practice adopted by respondent No.3 society for filling up ‘B’ category seats is to notify the number of seats available under the said category by affixing notices in the notice board of the society and the colleges concerned; that notice dated 11.06.2007 was issued calling upon the students interested in seeking admission in ‘B’ category seats to approach the named representative of the society and the copy of the said notice was displayed on the notice boards (filed as Annexure R- 3/5). It is asserted that it is not only the respondent No.3 institution, but also all the private unaided engineering colleges in the State which are adopting this procedure and that there is no requirement in the statutory rules that notification shall be published in newspapers. It is averred that the usual practice adopted by the candidates intending to take admissions in ‘B’ category seats is to approach the respective managements and obtain admissions after paying the requisite fees. It is also averred that many seats in ‘A’ category to be filled by the convenor are remaining vacant in many engineering colleges in the State and that if ‘B’ category seats remain vacant, the management would fall short of funds making it difficult even to meet the expenditure towards salaries to its teaching and non-teaching staff. Therefore, it is averred that as and when a student approaches the college seeking admission in ‘B’ category and if he fulfils the eligibility criteria notified in G.O.Ms.No.53, then such student is being admitted under the said category and that if the students are allowed to wait for a stipulated time for receipt of applications and to place them in the order of merit, then there is every chance of the students not turning up for admission or he having already got a seat in counselling in any other private college leading to seats remaining vacant. It is further averred that the candidates should be admitted on the first come first serve basis under the management quota. It is further averred that neither petitioner No.1 nor his father approached the institution which fact shows that they are not interested in admission into the Engineering course and that even now vacant seats are available in certain branches of respondent Nos.4 and 5 institutions. In paragraph 6 of the counter-affidavit, it is stated that the details of seats position are available in web sites of the AICTE, Director of Technical Education, Convenor EAMCET and the respective college web sites and unlike in the case of ‘A’ category seats, there is no requirement of notifying ‘B’ category seats in the newspapers. Respondent No.3 also questioned the bonafides of the petitioners in filing the writ petition as a piece of public interest litigation and in this regard it is stated in the counter-affidavit that there is a dispute among the members of the 3rd respondent society, some of whom are the children of the members of the board of convenors of respondent No.3; that they made certain scandalous allegations against the society and filed O.P.Nos.2007 and 2146 of 2006 under Section 23 of the Andhra Pradesh Registration Act, 2000 on the file of II Additional Chief Judge, City Civil Court, Hyderabad seeking declaration that they are members of the 3rd respondent society and they could not succeed in their attempt to get an injunction with the dismissal of their application by II Additional Chief Judge, City Civil Court, Hyderabad and it was confirmed by this Court in CRP.Nos.6269, 6353 and 6301 of 2006 and by the Supreme Court in Civil Appeal Nos.2196, 2197 and 2198 of 2007. It is further averred that a similar attempt was made by another member by filing O.P.No.1 of 2007 on the file of Vacation Civil Judge, Ranga Reddy and an application for injunction filed by him was also dismissed by the said Court on 21.05.2007. It was emphasized in the counter that these disgruntled members of the society, in order to cause damage to respondent Nos.4 and 5 colleges run by respondent No.3 society, selectively filed the present writ petition leaving out 270 and odd other private unaided engineering colleges in the State of Andhra Pradesh. In the reply affidavit filed by Dr. B. Arun Kumar, petitioner No.2 and the father of petitioner No.1 while denying the allegation that the writ petition is not filed in public interest averred that he has nothing to do with the litigation initiated by some persons against the society. Heard Sri M. Satyanaraya Goud, learned counsel for the petitioners, Sri B. Adinarayana Rao for respondent Nos.3 to 5 and learned Government Pleader for Higher Education for respondent No.1. Learned counsel for the petitioners submitted that respondent Nos.3 to 5 have been acting in violation of the Rules, in particular Rule 6(ii) in filling up ‘B’ category seats. The learned counsel further submitted that in view of lack of transparency on the part of respondent Nos.3 to 5, candidates with superior merit are being denied seats as the seats are being filled up without any notice to the intending candidates and they are indulging in commercialization of education. Sri B. Adinarayana Rao, learned counsel for respondent Nos.3 to 5 while denying the allegation that respondent Nos.3 to 5 have not been following proper method in notifying the details of the availability of ‘B’ category seats, submitted that as there is no obligation on the part of respondent Nos.3 to 5, there was no need to notify the seats in the newspapers. He, however, contended that the details were made available not only in the web site of respondent No.2, but also in the web sites of respondent Nos.4 and 5 colleges. He further contended that if the educational institutions are required to publish the details of the seats, call for applications and select the candidates on the basis of the merit, there is a possibility of the institutions not being able to fill up with ‘B’ category seats, which is the main source of income for them, because the candidates, who have applied and are made to wait, may choose to join in other institutions before they are given admission in the colleges, which they have applied earlier. Learned counsel submitted that to avoid such a situation, the college is adopting the method of first come first served and that all other colleges in the State are also following the same procedure. Learned counsel lamented that the petitioners for extraneous considerations selectively targetted respondent Nos.3 to 5 by lacing these writ petitions with the colour of public interest litigation, while in fact, this is only a facade to sub-serve their ulterior purposes. Learned Government Pleader for Higher Education stated that since the Rules provide for notifying ‘B’ category seats in a fair, transparent and non-exploitative manner, respondent Nos.3 to 5 are bound to follow a proper procedure of notifying the availability of the seats and the schedule for filling them in a manner by which the public are duly informed in order to enable them to apply for and seek admissions into the Engineering course. Before examining the issue whether respondent Nos.3 to 5 has followed proper procedure prescribed in the extant Rules in making admissions to ‘B’ category seats, we would like to dispose of the contention raised by respondent Nos.3 to 5 that these writ petitions are not filed in public interest. Respondent No.3, as already noted, referred to the litigations preceding the filing of these writ petitions. We have carefully perused Ex.Nos.R3/1 and R3/2, which are legal notices, R3/3, the judgment of the Supreme Court in Civil Appeal No.2197 of 2007 and R3/4, the order in I.A.No.147 of 2007 and find that none of the persons on whose behalf either legal notices were issued or are parties to the proceedings before the Courts are parties to these writ petitions. Respondent No.3 has not made specific averments establishing connection between the petitioners in these writ petitions and the persons, who are litigating against it nor has filed any material to establish nexus between the petitioners and the persons litigating against it. From the mere fact that the petitioners chose respondent Nos.3 to 5 for filing the present writ petitions, this Court cannot refuse to entertain these writ petitions on the assumption that they were actuated by extraneous considerations or having malafaide intentions in filing the present writ petitions. The fact that in each of these writ petitions one or more candidates are seeking admission in these colleges is not in serious dispute. It cannot therefore be said that they have no locus to maintain the writ petitions. In the absence of sufficient material, on the basis of which, this Court can conclusively hold that the writ petitions are filed to settle private course, they cannot be thrown out, more so, when an issue involving larger public interest is raised. We are therefore not inclined to accept the contention of respondent No.3 to reject the writ petitions in limine without going into the merits of the issue raised in them. The grievance of the petitioners projected in these writ petitions is that in making admissions to ‘B’ category seats, respondent Nos.3 to 5 are not following a fair and transparent method as enjoined on them by the Rules framed in G.O.Ms.No.53, dated 10.05.2006. In the light of this plea, the issue that falls for our consideration is two fold, namely, (1) what is the true meaning and purport of the word ‘notify’ in “fair, transparent and non-exploitative manner” as provided in Rule 6(ii)(1) of the Rules, and (2) Whether the procedure, which is claimed to have been followed by respondent Nos.3 to 5 in filling up ‘B’ category seats for the academic year 2007-2008 constitutes sufficient compliance of Rule 6(ii)(1) of the Rules. The Government of Andhra Pradesh in exercise of its rule making power conferred by Sections 3 and 15 of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 and in supercession of the Andhra Pradesh Unaided Non-Minority Professional Institutions (Regulation of Admissions into Under-Graduate Professional Courses through Common Entrance Test) Rules, 2003 framed the Andhra Pradesh Unaided Non-Minority Professional Institutions (Regulation of Admissions into Under-Graduate Professional Courses through Common Entrance Test) Rules, 2006 (for short “the Rules”). Framing of these Rules was necessitated by the dicta laid down by the Supreme Court in T.M.A. Pai Foundation (1 supra) and as interpreted i n Islamic Academy of Education (2 supra). In this context, it is necessary to refer to the relevant Rules. Rule 2(i)(b) defines “Admissions and Fee Regulatory Committee (AFRC)” as committee established and constituted by the Government for regulating the admissions anf for fixing the fees to be charged from candidates seeking admission into unaided minority and non-minority professional institutions. Rule 2(i)(d) defined “Competent Authority” as Chairman, Andhra Pradesh State Council of Higher Education. Rule 2(i)(g) defined “Eligible Candidate” as the candidate who is eligible for admission as per the eligibility criteria prescribed under Rule 4. Under Rule 2(i)(j) the word ‘Institutions’ is defined as all the unaided Non- Minority Professional Institutions imparting professional courses in Engineering (including Technology) and Pharmacy. The words “Qualified Candidate” is defined in Rule 2(i)(l) as the candidate who has appeared for the Common Entrance Test EAMCET/EAMCET-AC, as the case may be, for admission into the related professional course and has been assigned ranking in the Common Merit List as per Rule 5/12 of the Andhra Pradesh Common Entrance Test for entry into Engineering, Pharmacy, Agriculture, Medical and Dental Courses Rules, 2004 (for short “the 2004 Rules”). Rule 2(i)(m) defined “Qualifying Examination” as the examination of the minimum qualification passing of which entitles one to seek admission into the relevant professional course as prescribed in the 2004 Rules. Rule 3 deals with allotment of seats. The seats are divided into two categories, namely, ‘A’ category seats and ‘B’ category seats. Under ‘A’ category, 80% of sanctioned intake of seats in each course shall be filled with eligible candidates on the basis of rank obtained in EAMCET/EAMCET-AC as the case may be following the provision of sub-rule (1) of Rule 6 and the Rule of Reservation laid down in Rule 7. Under ‘B’ category, 20% of the total intake of seats in each course shall be open for admission to all the eligible candidates on merit basis including the candidates belonging to other States and Union Territories of India and NRIs. 15% of the ‘B’ category seats may be filled up with NRIs. Rule 4, which lays down eligibility criteria of admission, reads as under: “Eligibility Criteria for Admission: The eligibility criteria for admission into engineering (including Technology), Pharmacy, and Professional Courses shall be as mentioned below: (i) The candidate shall be an Indian National. (ii) The candidate should have completed 16 years of age as on 31st December of the Academic year for which the admissions are being conducted. (iii) The candidate should have passed the qualifying examination (10+2) or equivalent on the date of his/her counselling for admission and secured a rank at the Common Entrance Test and should also satisfy other conditions laid down in these Rules: Provided that the Category ‘B’ seats as specified in Rule 3 (iii) above shall be filled either on the basis of the rank obtained in the Common Entrance Test or on the basis of the rank obtained in All India Engineering Entrance Examination (AIEEE) conducted by the Central Board of Secondary Education: Provided further that the NRI seats shall be filled with candidates who have passed the qualifying examination with not less than 60% of aggregate marks or Cumulative Grade Point Average (CGPA) equivalent to 6 on a scale of 10. (iv) The vacant seats if any, may be filled with the candidates securing not less than 60% marks in aggregate or in group subjects in the qualifying examination duly ensuring merit and transparency. (v) During admissions through Single Window System, the qualified candidates of EAMCET shall not be eligible for admission into the Institutions that have opted for EAMCET-AC on the basis of their Rank in EAMCET and vice- versa. However, such candidates shall be eligible for seeking admissions in the vacant seats to be filled by the institutions based on their merit as per Rule 6(i)(a)(11) or Rule 6(i)(b) (11) hereunder, as the case may be. (vi) The candidate should satisfy Local/Non-Local status requirement for admission into Category A seats as laid down in the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974 as subsequently amended.” Under Rule 5(i)(2), all the ‘B’ category seats shall be filled by the respective institutions on “merit basis” following the procedure laid down in Rule 6(ii). Rule 6(i) deals with filling up of ‘A’ category seats (80%) and Rule 6(ii) is concerned with filling up of ‘B’ category seats (20%). Under Rule 6(i) a committee for EAMCET constituted by the competent authority shall advise the convenor EAMCET for smooth conduct of admissions and the convenor shall collect rank lists of the qualified candidates of EAMCET prepared by the convenor of EAMCET as per sub-rule (3) of Rule 5 of the 2004 Rules. The seats shall be allotted by adopting computerized single window system of counselling either by following centralized or decentralized online counselling functions at various centres and preparing the seat matrix of Unaided Non-Minority Professional Institutions. Rule 6(ii), which deals with filling up of ‘B’ category seats, which is relevant for the present purpose is as follows: “6(ii) TO FILL UP CATEGORY-B SEATS (20%) (1) The Institution shall notify all the details of seats available under this category and conduct the admissions in a fair, transparent and non- exploitative manner. (2) The NRI seats (not exceeding 15% of the sanctioned intake in each course) shall be filled on merit basis with NRI candidates who have passed the qualifying examination with not less than 60% of aggregate marks or Cumulative Grade Point Average (CGPA) equivalent to 6 on a scale of 10. (3) The left over seats shall be filled by the management of the institution with candidates from other States and Union Territories of India who have passed the qualifying examination and secured rank in AIEEE. (4) If vacant sets still exists, such seats may be filled with any candidate securing not less than 60% of aggregate marks or 60% in group subjects in the qualifying examination. (5) The institution shall obtain ratification from the Competent Authority for all the admissions conducted under Category-B seats by the institution. (6) After scrutiny, the Competent Authority shall send the ratified list of candidates from outside the State, NRIs and others admitted by the Institution to the University concerned and also to the respective institutions.” Rule 8 stipulates that fee payable per student per annum for each discipline in each institution shall be as prescribed by AFRC. Rule 9 is a Transitory Provision under which it is envisaged that the Permanent Committee and Fee Fixation Committee constituted by the Government vide G.O.Ms.Nos.90 and 91, Higher Education Department dated 22.12.2003 and existing at the commencement of these Rules shall continue to discharge all the functions assigned to the AFRC under these rules till the Government constitutes the AFRC. From the abovementioned Rules, it is evident that while the unaided non-minority professional institutions are bound to admit the students strictly in accordance with the allotment made by the convenor EAMCET admissions in respect of ‘A’ category seats (80%), certain amount of discretion is given to these institutions in filling up of ‘B’ category seats (20%).