HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE G.V.SEETHAPATHY WRIT APPEAL Nos.1348, 1349, 1350, 1351, 1353, 1355, 1356, 1373, 1381, 1383, 1413, 1416 and 1458 OF 2004 Writ Appeal No.1348 of 2004 Between: Vivekananda Degree College, rep. by its Secretary & Correspondent, P.Radhakrishna, Nellore. . . .Appellant AND Registrar, Sri Venkateswara University, Tirupati, Chittoor District & another. . .Respondents Writ Appeal No.1349 of 2004 Between: H.M.Degree College, rep. by its Correspondent, Syed Basha Saheb, Rayachoti, Kadapa District. . . .Appellant AND Registrar, Sri Venkateswara University, Tirupati, Chittoor District. .Respondent Writ Appeal No.1350 of 2004 Between: Aditya Degree College, rep. by its Correspondent, B.Rami Reddy, Nellore. . . .Appellant AND Registrar, Sri Venkateswara University, Tirupati, Chittoor District. . .Respondent Writ Appeal No.1351 of 2004 Between: Sree Krishna Chaitanya Degree College, rep. by its Correspondent, P.V.Rami Reddy, Nellore. . . .Appellant AND Registrar, Sri Venkateswara University, Tirupati, Chittoor District & another. . .Respondents Writ Appeal No.1353 of 2004 Between: Sree Veda Vyasa Degree College, rep. by its Correspondent, B.Rama Devi, Proddatur, Kadapa District. . . .Appellant AND Sri Venkateswara University, rep. by its Registrar, Tirupati, Chittoor District. . .Respondent Writ Appeal No.1355 of 2004 Between: Sri C.Sivashankar Reddy and Subbarami Reddy Memorial Degree College, rep. by its Correspondent, C.V.Rajagopal Reddy, Kamalapuram, Kadapa District. . . .Appellant AND Sri Venkateswara University, rep. by its Registrar, Tirupati, Chittoor District. . .Respondent Writ Appeal No.1356 of 2004 Between: Sri Parameswara Degree College, rep. by its Correspondent, R.Rajeswara Reddy, Jammalamadugu. . . .Appellant AND Sri Venkateswara University, rep. by its Registrar, Tirupati, Chittoor District. . .Respondent Writ Appeal No.1373 of 2004 Between: Sri Venkateswara Degree College, rep. by its Correspondent, P.Sunil Kumar, Nellore. . . .Appellant AND Sri Venkateswara University, rep. by its Registrar, Tirupati, Chittoor District. . .Respondent Writ Appeal No.1381 of 2004 Between: Sri Balaji Degree College for Women, rep. by its Correspondent, Dr.R.Venkata Swamy, Tirupati. . . .Appellant AND Sri Venkateswara University, rep. by its Registrar, Tirupati, Chittoor District & others. . .Respondents Writ Appeal No.1383 of 2004 Between: Sri C.Dass Arts & Science College, rep. by its Correspondent, R.Venkata Swamy, Sathyavedu, Chittoor District. . . .Appellant AND Sri Venkateswara University, rep. by its Registrar, Tirupati, Chittoor District & others. . .Respondents Writ Appeal No.1413 of 2004 Between: Krishna Sarada Degree College, rep. by its Correspondent, P.Nagarjuna Reddy,Porumamilla, Kadapa District. . . .Appellant AND Registrar, Sri Venkateswara University, Tirupati, Chittoor District. . .Respondent Writ Appeal No.1416 of 2004 Between: Sri Vaishnavi Degree College, rep. by its Correspondent, P.V. Ramana Reddy, Rajampet, Kadapa District. . . .Appellant AND Registrar, Sri Venkateswara University, Tirupati, Chittoor District. . .Respondent Writ Appeal No.1458 of 2004 Between: Viswabharathi Degree College, rep. by its Correspondent, A.V.V. Raju, Tirupathi, Chittoor District. . . .Appellant AND Registrar, Sri Venkateswara University, Tirupati, Chittoor District. . .Respondent : J U D G M E N T : Counsel for the Appellants : Sri B.V.Subbaiah in W.A.Nos.1348, 1349, 1350, 1351, 1416 and 1458 of 2004 Counsel for the Appellants : Sri V.R.Reddy Kovvuri in W.A.Nos.1353, 1355 and 1356 of 2004 Counsel for the appellant in : Sri G.Venkateswarlu W.A.No.1373 of 2004 for Sri M.Venkata Narayana. Counsel for the appellants in : None W.A.Nos.1381, 1383 and 1413 of 2004 Counsel for Respondent No.1 in : Sri B.Adinarayana Rao W.A.Nos.1348 and 1351 of 2004 and the sole respondent in W.A. Nos.1349, 1350, 1353, 1355, 1356, 1416 and 1458 of 2004. Counsel for Respondent No.1 in : Sri P.Sreeramulu Naidu W.A.Nos.1381 and 1383 of 2004 and the sole respondent in W.A. Nos.1373 and 1413 of 2004. Counsel for Respondent No.2 in : Sri M.V.S.Suresh Kumar W.A.Nos.1348 and 1351 of 2004 Counsel for Respondent Nos.2 and 3 : Government Pleader for in W.A.Nos.1381 and 1383 of 2004. Higher Education. 21st September, 2006 Per G.S.SINGHVI, C.J. Whether the conditions enumerated in Rule 10 of the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Institutions of Higher Education) Rules, 1987 (for short, ‘the Rules’) for grant of permanent recognition/affiliation to the government and private institutions can be invoked by the competent authority for declining temporary affiliation in terms of Rule 9 of the Rules is the question which arises for determination in these appeals filed against orders dated 20-8-2004 and 27-8-2004 passed by the learned Single Judge in Writ Petition No.10838 of 2004 and batch and in Writ Petition No.12512 of 2004 respectively. For the sake of convenience, we have taken the facts from Writ Appeal No.1348 of 2004. Appellant - Vivekananda Degree College was established in Rohini Nagar, Nellore in August, 1996. For this purpose, the management of the college was granted permission by the competent authority under Section 20 of the Andhra Pradesh Education Act, 1982 (for short, ‘the 1982 Act’). After establishing the college, the management submitted an application under Rule 9 of the Rules to Sri Venkateswara University, Tirupathi (for short, ‘the University’) for grant of temporary affiliation. On being satisfied that the appellant fulfills the conditions specified in Rule 9(2)(b) of the Rules, the University granted temporary affiliation for a period of one year, which was renewed from year to year till the Registrar of the University vide his letter dated 24-6-2004 informed the Correspondent of the appellant college that Executive Council has resolved to implement order dated 7-1-2004 passed by the Andhra Pradesh High Court in Writ Petition No.12340 of 2003 and, in that view of the matter, affiliation has not been granted to the college for academic year 2004-2005. The appellant questioned the aforementioned decision of the University in Writ Petition No.11163 of 2004. In the affidavit filed by Secretary and Correspondent of the college, it was pleaded that the management has not violated any of the conditions of temporary affiliation and, therefore, the University is not justified in refusing affiliation for the year 2004-2005. It was further pleaded that the University authorities have misconstrued order dated 7-1-2004 passed by the Division Bench of the High Court in Writ Petition No.12340 of 2003 – Society for Common Cause, Nellore v. Secretary, A.P. State Council for Higher Education, Saifabad Hyderabad and others and, therefore, rejection of the application for temporary affiliation should be declared illegal and quashed. In the counter affidavit filed by the Registrar of the University, it was averred that the decision not to grant temporary affiliation to the writ petitioner for academic year 2004-2005 was taken in the light of the observations made by the High Court in Writ Petition No.12340 of 2003. It was further averred that due to financial constraints, the management of the college has been requesting the University not to insist on the construction of own building as a condition for grant of affiliation, but, in view of the order passed by the High Court, the University decided not to extend the term of temporary affiliation. The appellants of the other cases filed similar writ petitions questioning communication dated 24-6-2004 sent by the Registrar of the University. In the affidavits filed on their behalf, it was averred that the colleges are entitled to temporary affiliation up to a period of ten years as of right and the University was not justified in declining affiliation on the pretext of implementing order dated 7-1-2004 passed in Writ Petition No.12340 of 2003. After taking cognizance of the pleadings of the parties and the arguments of their Advocates, the learned Single Judge formulated the following points: “(i) Whether private degree colleges cannot be denied temporary affiliation after completion of five years of establishment on the ground that such college does not own permanent buildings? (ii) Whether owning permanent buildings is essential pre- requisite, for a private degree college to seek permanent affiliation of the University?” The learned Single Judge then referred to order dated 7-1-2004 passed by the Division Bench in Writ Petition No.12340 of 2003 and observed: “A reading of the judgment of the Division Bench in PIL case would conclude the following situation. a) The colleges did not take necessary steps to comply with the conditions imposed by the University at the time of granting temporary conditional affiliation; b) When the conditions imposed are not complied with, University should not have granted further affiliation as a matter of course; c) Once the temporary conditional affiliation is granted, all the colleges must scrupulously comply with the conditions. The University did not take steps to ensure regular inspection and compliance with the conditions, which has resulted in sorry state of affairs; d) Failure on the part of the affiliated institutions must result in some penal consequences against the colleges, including stoppage of further extension, which course of action has not been followed by the respondent University; and e) University should ensure that for the academic year 2004-05, no affiliation is granted to private colleges unless and until they comply with the conditions. If the conditions are not complied with, affiliation should be cancelled. In view of the categorical findings, observations and directions of the Division Bench of this Court in the PIL case, the submissions of the learned counsel for the petitioners that this Court did not give any direction to withhold affiliation to petitioner colleges cannot be countenanced. Even while passing impugned orders, the University informed the petitioners that the question of granting further affiliation shall be considered only after the colleges are shifted to their own buildings. The permission granted to the petitioners to establish college was not withheld and has admitted in the additional affidavit of the Vice Chancellor, so as to avoid inconvenience to the students, the colleges were permitted to continue second year and third year courses in the colleges. This only means that as and when the petitioner colleges acquire or construct their own buildings, the colleges would be considered for the grant of permanent affiliation. Indeed none of the counsel disputes this position.” While rejecting the argument of the writ petitioners (appellants herein) that the University can grant affiliation up to ten years and fulfillment of the conditions prescribed under Rule 10 of the Rules was not sine qua non for that purpose, the learned Single Judge analysed the provisions of the Rules and held: “A degree college, oriental college, Hindi Maha Vidyalaya, law college and postgraduate colleges have to obtain affiliation from the concerned University. As can be seen from Rule 9(2)(b) of the Higher Education Rules, a private college shall be accorded temporary affiliation subject to fulfillment of conditions as may be prescribed by the University. Such temporary affiliation is granted for a period of one year and is renewable for a period of five years by which time the educational agency shall have to fulfill the conditions stipulated for grant of permanent affiliation. The period of five years, during which, a college may be granted temporary affiliation annually, can however be relaxed up to ten years in deserving cases. Rule 9(2)(b) of the Higher Education Rules further makes it clear that all applications for temporary affiliation have to be made in Form III not later than three months prior to the expiry of period of temporary affiliation. Insofar as seeking permanent affiliation is concerned, a college which has completed five years of existence with temporary affiliation, has to necessarily seek permanent affiliation subject to condition that such college has pucca buildings of its own with prescribed facilities like furniture, library, laboratory etc., and also subject to condition that it has fulfilled all the conditions prescribed for granting temporary affiliation. In case, a college has not constructed its own building during the period of five years, unless and until the University has granted relaxation, such college cannot function further and it is deemed that its affiliation is no more in force. Section 21 of the Education Act requires the competent authority, that is the University to grant affiliation in writing duly imposing conditions. Therefore, it is reasonable to assume that even when the University grants relaxation of the conditions as per Rule 9(2)(b) of the Higher Education Rules and extends temporary affiliation beyond five years, such relaxation has to be by order in writing. The sum and substance of Rules 9 and 10 of the Higher Education Rules read together is that a private college, which has been given temporary affiliation has to construct its own buildings within a period of five years and seek permanent affiliation under Rule 10 of the Higher Education Rules by making an application in Form III. If a college fails to own pucca buildings, it has to seek relaxation of the Rules, which has to be granted by the University by order in writing under Rule 9(2)(b) of the Higher Education Rules. Though the legal position is clear, it is contended by the learned counsel for the petitioners that for grant of even permanent affiliation, there is no requirement of owning permanent buildings. This submission is misconceived and is to be rejected. Though the college established with the permission of the competent authority can function with temporary affiliation in rented buildings for a period of five years, a college cannot be permitted to function beyond five years in rented buildings and such college has no right to seek permanent affiliation from the University. In these cases, the petitioner colleges in W.P.Nos.11149 and 12665 of 2004 have completed five years by the academic year 2003-04. The petitioners in other writ petitions have completed more than six years, but still curiously the University went on granting temporary conditional affiliation. The University counsel has not produced before this Court any order in writing by the University granting relaxation enabling the petitioners to seek temporary conditional affiliation, year after year, even beyond five years. In the absence of any such relaxation granted by the University, the petitioners cannot contend that they have a right to continue even though they have completed five years with temporary affiliation. The petitioner colleges ought to have constructed the permanent buildings before the expiry of five years of their existence and ought to have obtained permanent affiliation. If it was not possible to own buildings, petitioners ought to have specifically asked for relaxation of the Rule. Even assuming that by reason of the temporary affiliation granted by the University even beyond five years, the conditions are deemed to have been relaxed, the petitioners in W.P.Nos.12703, 12584 and 10865 of 2004, which have completed ten years; writ petitioners in W.P.Nos.10974 and 12330 of 2004, which have completed eleven years with temporary affiliation and the petitioners in W.P.Nos.12610 of 2004 and 12671 of 2004, which have completed twelve and thirteen years respectively with temporary affiliation cannot take plea of deemed exemption. All these petitioners also did not make any efforts to own their own buildings and some of them now contend that they have purchased the land, and within a year or so, they will complete the construction of the buildings and on that ground they seek a writ of mandamus to the University to grant temporary affiliation for the academic year 2004-05. The petitioners have not complied with the conditions specified in Rules 9 and 10 of the Higher Education Rules and therefore they are not entitled for any relief in these writ petitions.” Learned counsel for the appellants assailed the order under challenge and argued that the interpretation placed by the learned Single Judge on the scheme of the Rules and the contents of Form III is clearly erroneous and the conclusion drawn by him that the institutions seeking temporary affiliation beyond a period of five years are duty bound to fulfill the conditions enumerated in Rule 10 is legally untenable. They further argued that order dated 7-1-2004 passed by the Division Bench in Writ Petition No.12340 of 2003 did not have the effect of imposing a blanket ban on the grant of temporary affiliation beyond a period of five years and the University authorities gravely erred by declining temporary affiliation to the appellants on the premise that the institutions do not fulfill the conditions prescribed for permanent affiliation. S/Sri B.Adinarayana Rao and P.Sreeramulu Naidu, learned counsel appearing for the University and the learned Government Pleader for Higher Education supported the orders under challenge and argued that the reasons assigned by the learned Single Judge for refusing to direct the University to revive the temporary affiliation granted to the appellants do not suffer from any infirmity. We have given serious thought to the entire matter. In our opinion, even though the learned Single Judge’s analysis of order dated 7-1-2004 passed by the Division Bench in Writ Petition No.12340 of 2003 appears to be consistent with the tenor of that order, his interpretation of Rules 9 and 10 is clearly erroneous and the orders under challenge are liable to be set aside. We are further of the view that the decision taken by the University not to renew the temporary affiliation of the appellants is based on a mis-interpretation of order dated 7-1-2004 passed in Writ Petition No.12340 of 2003 and, therefore, the communications impugned in the writ petitions filed by the appellants are liable to be quashed. Rules 1(2) (b) to (f), 2(d), 9 and 10 and Form III appended to the Rules, which have bearing on the decision of these appeals read as under: “1(2)(b) Degree (imparting degree courses with or without attached Intermediate sections); (c) Oriental Colleges; (d) Hindi Mahavidyalas; (e) Law Colleges (Colleges imparting Law Courses either exclusively or as Degree College offering Law Courses also); (f) Post-Graduate Centres (Colleges imparting Post- Graduation Degree/Diploma courses either exclusively or as Degree Colleges offering Post-Graduation Courses also). 2(d) `Competent Authority' means the authority which is competent to grant permission/recognition/affiliation as the case may be to the educational institutions; 9. Power to grant or withdraw Recognition/Affiliation:- (1) Competent authority:-(a) The Board of Intermediate Education shall be the competent authority for granting or withdrawing of temporary/permanent recognition/affiliation for all educational institutions imparting intermediate education as per clause (ii) of sub-section (1) of Section 9 of the Andhra Pradesh Intermediate Education Act, 1971 (Act No.1 of 1971). (b) For all other institutions mentioned at (b) to (f) in sub-rule (2) of Rule 1, the competent authority for granting or withdrawing of temporary/permanent recognition/affiliation shall be the University concerned. (2) (a) Government Institutions shall be accorded permanent recognition/affiliation straight away, by the competent authority if he is satisfied that the conditions prescribed for this purpose are satisfied. (b) To start with, the private institution shall be accorded temporary recognition/affiliation subject to fulfillment of such conditions as may be prescribed by the competent authority. The temporary recognition/affiliation is renewable annually for a period of five years relaxable to ten years in deserving cases by which time the educational agency shall fulfill the conditions stipulated for grant of permanent recognition/affiliation. Applications for renewal of temporary recognition/affiliation shall be made to the competent authority in Form -III not later than three months prior to the expiry of the period of temporary/recognition/affiliation. (3) (a) The educational agency of the private institution in respect of which the competent authority have accorded permission, is permitted to admit students and to appoint staff by following the procedure prescribed in Rule 7, immediately after the receipt of the orders of permission to open their institution. After fulfilling the conditions stipulated for grant of temporary recognition/affiliation, the educational agency shall make an application to the competent authority in Form-IV for approval of the appointments made and Form-III for grant of temporary recognition/affiliation to the institution. The application shall be made, accompanied by the following documents within a period of three months from the date of receipt of the order of the permission - (i) copy of the orders in which permission to open the institution has been accorded; (ii) lists of teaching and non-teaching staff appointed; (iii) lists of students admitted into various classes/courses (iv) bank challan in proof of the payment of inspection fee and Recognition/Affiliation Fees. (b) On receipt of the application from the educational agency, the competent authority shall make inspection of the institution to find out the extent of fulfillment of the conditions prescribed for grant of temporary recognition/affiliation, on a date convenient to both parties. (c) Unless the students are admitted and staff are appointed and other conditions are satisfied, the competent authority shall not accord approval to the staff appointed and accord temporary recognition/affiliation to the private institution and consequently the students shall not be allowed to appear for the public examinations. (4) The Inspection Fee and Recognition/Affiliation Fee to be collected from the educational agency shall be as prescribed by the competent authority indicated in sub-rule (1). The fees shall be credited in their respective head of account and can be utilised for incurring the expenditure involved. 10. Conditions for grant of permanent recognition/affiliation:- The competent authority shall grant permanent recognition/affiliation to the Government and private institutions which are enjoying temporary recognition/affiliation at least for a period of five years, subject to the fulfillment of the following conditions - (1) that the institution has pucca buildings of its own with the prescribed facilities like furniture, library, laboratory, play ground etc.; (2) that the educational agency fulfilled all the conditions prescribed for granting temporary recognition/affiliation; (3) that the educational agency has implemented all the instructions issued by the competent authorities in all matters. (4) that the educational agency has not denied admission to any student on the grounds of religion, caste, race or language; (5) that the educational agency has not encouraged any propaganda or practice wounding the religious feelings of any class of citizens of India or insulting the religions or the religious beliefs of that class; (6) that the educational agency has not refused for constituting the institution as a centre for conducting the Government examinations like Andhra Pradesh Public Service Commission, etc.; (7) that the educational agency has appointed the staff following the procedure prescribed by the Government, from time to time, and got the appointments approved by the competent authority; (8) that the educational agency has reinstated the staff member whom it has removed/suspended, on receipt of orders from the competent authority for such reinstatement.” “FORM III (Under Rule 9(2) and Rule 9(3) (a) Application for grant of or Renewal of Temporary or Permanent Recognition/Affiliation to Colleges (strike off irrelevant words) 1. Name of the institution with full address : 2. Date of opening of the institution : (copy of order of permission has to be enclosed) 3. Name of the educational agency managing the institution : 4. Is the educational agency a registered body? (a certified copy of registered deed should be enclosed) 5. Name of the Secretary/Correspondent/Manager : 6. Name of courses offered for which recognition/affiliation is sought for : 7. (a) Class-wise/course-wise strength of students : (List of students to be enclosed) 8. List of teaching and non-teaching staff appointed indicating qualification and age at the time of appointment : (Attested copies of the qualifications and age certificate of the employees to be enclosed). 9. Whether the prescribed corpus fund (endowment) has been created : 10. (a) Details of accommodation (supporting documents to be enclosed) : (b) Whether the accommodation provided is owned or rental: (i) If owned, documentary evidence to be produced. (ii) If rental, leasehold deed for a period of not less than five years to be produced (a declaration to construct own buildings within a period of five years also has to be produced). 11. Details of furniture to be furnished : 12. Details of laboratory equipment like apparatus, chemicals, microscopes and slides etc. : 13. Details of audio visual equipment available : 14. Details of books available in the library : (a) Text Books. (b) Reference Books (c) Literature Books (d) General Knowledge Books (e) Miscellaneous Books 15. Details of games (Sports articles/material/equipment available) : 16. Whether there is play ground for the institution? 17. Whether arrangements are made for the medical inspection of pupils: 18. Full details of the property that is present in the name of the education agency (Documentary evidence to be produced). 19. Whether prescribed sanitary facilities available : (Sanitary certificate from