HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE C.V.RAMULU W.P.Nos.15895, 15896,16645, 17749, 18289,14692,14978,16723,16751, 18721,18951,18952,20038 and 16984 of 2008 DT. 31-1-2011 WP NO.15895/2008: 1. St.Adams Educational Society, Hyderabad and others …Petitioner V. 1. The Government of Andhra Pradesh, represented by is Principal Secretary, School Education Department, Secretariat Buildings, Hyderabad and others ..Respondents The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE C.V.RAMULU W.P.Nos.15895, 15896,16645, 17749, 18289,14692,14978,16723,16751, 18721,18951,18952,20038 and 16984 of 2008 Common Order: (Per the Hon’ble Sri Justice A. Gopal Reddy) In these batch of writ petitions, the validity of the Rules, namely, Andhra Pradesh Colleges of Education (Regulation of Admissions into B.Ed., Course through Common Entrance Test) Rules, 2006 (for short “the Rules”) issued in G.O.Ms.No.92 Education (SE-Trg-1) Department dt. 16-11-2006 and consequential G.O.Rt.No.295 Education (SE-TRG) Department dt. 30-4-2008 and proceedings in RC No.480/N2-1/2008 dt. 19-6-2008 of the 8th respondent, namely, Commissioner and Director of School Education, Government of Andhra Pradesh, Hyderabad, is questioned as arbitrary, illegal and unconstitutional. Therefore, they are heard together and disposed of by this common order. Petitioners in all the writ petitions are minority educational institutions, established for the purpose of imparting education and training in Bachelor of Education Course, particularly for the benefit of Muslim Minority Community. Since all the writ petitions contain similar facts, it is unnecessary to notice the facts in all the writ petitions except facts in WP No.15895/2008. The petitioners 1 and 2 in WP No.15895/2008 obtained permission from National Council for Teacher Education (for brevity “NCTE”) with an intake capacity of 100 students. The Government of Andhra Pradesh has a right to provide the mode and method of making admission under the A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (for short “the Capitation Fee Act”). Rule 5 of the Rules, which provides method of admission, reads as under: “5 . Method of Admission: The general guidelines for the admission of candidates into the Colleges of Education offering B.Ed., Course shall be as follows: (i) The admissions shall be made in the order of merit on the basis of the rank assigned in EDCET/EDCET-AC and to the extent of sanctioned seats. (ii) The percentage of candidates to be admitted in each methodology (subject) in the University/Government/Private institutions shall not exceed the limit prescribed by the Universities/Government from time to time. The percentage of admissions into the four methodologies shall be as follows: (a) Mathematics Methodology :30% (b) Physical Sciences Methodology: 15% © Biological Sciences Methodology: 25% (d) Social Studies Methodology : 30% (iii) The methodology-wise percentages shall be followed strictly as prescribed above for all the seats either allotted by the Convenor, EDCET/EDCET-AC or filled by the managements under Category-B seats. (iv) The admissions into all University/ Government/Private Aided/ Private un- Aided Colleges of Education shall be made though a single window system in the order of merit on the basis of rank assigned in EDCET/EDCET-AC. (v) All the seats in Un-Aided Minority/Non-Minority Institutions offering B.Ed., Course shall be filled as follows:- (a) All the Category-A seats shall be filled by the respective Institutions by admitting candidates as allotted by the Convenor of EDCET/EDCET-AC, as the case may be, depending upon the option exercised by Institutions as prescribed in the Andhra Pradesh Conduct of Education Common Entrance Test for Admission into B.Ed., Course Rules,2004. (b) All the category-B seats shall be filled by the respective Institutions in the order of merit based on the bank obtained in EDCET/EDCET-AC duly following the procedure laid down in Rule 6(iv) hereunder. (c) The admission of the candidates made in the Un-Aided Non- Minority/Minority Colleges of Education shall be subject to scrutiny by the Inspecting Authority (I.A) appointed for the purpose. Rule 6 deals with procedure of admissions. Rule 6(b)(6) reads as under: 6. Procedure of Admissions: (i) Each Un-aided Minority Institution which has opted for EDCET under the Andhra Pradesh Conduct of Education Common Entrance Test for Admission into B.Ed., Course Rules, 2004 shall indicate in writing to the AFRC within the cut-off date specified by it, as to whether the college would admit students through the single window system to be operated by the Convenor of EDCET admissions (EDCET window) or the Covnenor of EDCET-AC Admissions (EDCET-AC window). (ii) For the purpose of admissions, all the Institutions shall be divided into three groups viz., (1) Single Window-I: Institutions opting for Single Window System operated by the Convenor of EDCET admissions from EDCET rank holders. (2) Single Window-II: Institutions opting for Single Window System operated by the Convenor of EDCET-AC admissions from EDCET rank holders. (3) Single Window-III: Institutions opting for Single Window System operated by he Covnenor of EDCET-AC admissions for EDCET-AC rank holders. (iii) The procedure for admission of candidates to the Single Windows operated by the Convenor of EDCET and EDCET-AC shall be as follows: (a) x x x xx ; (b) Procedure to fill up the seats through SW-II: Category-A seats (80%) in Unaided Colleges of Education, which have opted for EDCET and admissions through EDCET-AC window. (1) to (5) x x x x; (6) Candidates shall be called for counselling and provisional allotment of Courses/Institutions shall be made in the order of merit based on the rank assigned in EDCET by following the Rules of Reservation as per Rule 7 hereunder and such allotment is only provisional: Provided that in respect of Minority Colleges of Education seats shall be allotted only to the eligible candidates belonging to the concerned Minority. In pursuance of Entries 65 and 66 of List-I read with Entry 25 of List-III, the Central Government had enacted National Council of Teacher Education Act, 1993 (for brevity “NCTE Act”) for the purpose of maintenance of standards in Colleges of Education. NCTE Act and the rules and regulations made thereunder occupy the entire field relating to the establishment and administration of Colleges of Education. The recognition, establishment of colleges, the norms providing for infrastructure and institutional facilities, the provision for determining intake capacity, the standards of teaching etc., are all provided under the NCTE Act and the rules made thereunder. Since the fourth respondent, namely, National Council for Teacher Education, represented by its Regional Director, Bangalore, has permitted the petitioner-Institution to function with an intake capacity of 100 students by a letter of Recognition simplicitor, the State Government only has a right to provide mode and method of making admissions under the Capitation Fee Act. Therefore, Rule 5 of the Rules which provides admission into different methodologies with the respective percentages against each methodology is unlawful and without jurisdiction, as it restricts the right of educational institution to make admission of the intake capacity permitted by NCTE. Once the field is occupied by the Central Legislation, the State Government lacks jurisdiction for modifying or conditioning the intake capacity by providing methodologies and their percentages. Prescription of methodologies is not traceable to any legislative Act empowering the State Government to regulate admissions. In the State of Andhra Pradesh, amongst the members of Muslim minority community, few students opt for Mathematics, Physical Sciences and Biological Sciences methodologies, whereas tremendous amount of admission into Social Studies methodology. In the process, the petitioner-institution was able to fill up Social Studies methodology and was unable to fill up the vacancies in other methodologies. On representations being made by the minority educational institutions, the State Government, from time to time, permitted them to make admission of minority candidates provided if qualified candidates for a particular methodology are not available, candidates of other methodology may be considered, which itself shows lack of admissions in other methodologies. For the year 2006-2007, admissions were being made through Single Window System, wherein all seats were allotted purely on the basis of merit obtained by the students in EDCET. Since students have not obtained admission in all the methodologies, some of the minority institutions made a representation to the 3rd, 6th and 7th respondents, namely, A.P. State Council of Higher Education, represented by it secretary, Hyderabad, Committee to Oversee conduct of CETs by the Association of Private Un-Aide Profession Colleges and Allied Matters, represented by its Member Secretary, Hyderabad and Admission and Fee Regulatory Committee, represented by its Member Secretary, Hyderabad respectively, stating that large number of seats were kept vacant in almost all the methodologies, and earlier they made a representation to the fifth respondent, namely, Convenor, EDCET-AC (SW-II) (Admissions), Hyderabad, to make admission into the remaining vacant seats in minority colleges by filling up the seats with non-minority candidates. The fifth respondent has not agreed to the said request. But the sixth respondent directed the fifth respondent to fill up the remaining unfilled seats with non-minority candidates by following the rules made in G.O.Ms.No.92 dt. 16-11-2006. Since the fifth respondent has not followed the directions issued by the sixth respondent, some of the minority institutions filed WP No.9377/2007. When the said writ petition was pending, fifth respondent conducted counselling for admission into B.Ed., course for the academic year 2006-2007 by filing up the vacant seats with non-minority candidates following the rules as prescribed in G.O.Ms.No.92 dt. 16-11-2006. On such admission, the seventh respondent through its letter No.7/AFRC-RA/2007-401 dt.11-6-2007 issued a show cause notice to the fifth respondent asking him to show cause as to why the admissions made in B.Ed., course for the academic year 2006-2007 should not be cancelled and why all the institutions comprising of Federation of A.P. Minority Educational Institutions, Hyderabad be considered as ineligible for admission for the academic year 2007-2008. Meanwhile, the first respondent, Principal Secretary to School Education, vide Memo No.6185/Trg/A1/2007 dt.19-6- 2007 accorded permission for admission of qualified minority candidates in Social Studies Methodology in minority B.Ed., Colleges against the vacant seats in other methodologies. Thereafter, the fifth respondent conducted counselling to all the minority colleges in the vacant seats and allotted candidates under Convenor quota by filling up seats. While so, the seventh respondent issued a show cause notice dt. 13-9-2007 to the fifth respondent as well as concerned minority colleges as to why all the admissions made in respect of non-minority students in violation of the admission procedure should not be cancelled, to which explanations were submitted by the concerned minority colleges. Considering the explanations, 7th respondent by proceeding vide letter No.7/AFRC-RA/2007/974 dt. 11-10-2007 cancelled the admission of 1770 non-minority candidates admitted into B.Ed., Minority Colleges by the fifth respondent for the academic year 2006-2007 mainly on the ground that the fifth respondent has not furnished the details and has not followed the procedure prescribed under the Rules. Questioning the same, several writ petitions were filed. This court directed the University to accept the examination applications of the students to appear for examination for the admission and the Management should submit an undertaking to the effect that they will not deviate the admission rules and will not repeat such things in future. Accordingly, all the colleges affiliated to Osmania University paid the penalty at Rs.2500/- per candidate as imposed by the Osmania University. In some cases other than Osmania University Colleges, the High Court directed pending further consideration, the results of the students, who have been admitted in excess of the A-category seats into B.Ed., course, be published as it is asserted that they have paid Rs.2500/- per student into the Government Treasury. While so, the first respondent through G.O.Rt.No.295 Education (SE.Trg-1) Department dt. 30-4-2008 levied penalty of Rs.5000/- per seat for deviation in methodology in respect of non- minority candidates and penalty of Rs.25000/- per seat/admission of non-minority candidates in a minority college without the approval of Admission and Fee Regulatory Committee (AFRC) and A.P. State Council of Higher Education (APSCHE) in respect of 43 minority colleges. The same was communicated by the Director of School Education, Hyderabad through proceedings No.4880/N2-1/2008 dt. 19-6-2008. Questioning the same, the present writ petition has been filed contending that imposing penalty is violative of right guaranteed under Art. 30 of the Constitution of India. Right to selection of candidates to be admitted into courses is an integral part of right of administration and management. Once approval of NCTE is obtained which fixes intake capacity without providing any methodology of admissions, the State Government has no role and will not have any jurisdiction to fix the methodology. A.P. Education Act does not empower the State Government to fix such methodology disciplines. Thus, imposition of penalties for the alleged deviation in methodologies is unsustainable and ultra vires. Once the Rules empowers the minority educational institutions for deviation in methodologies for admitting the minority candidates, non extension of the same benefit to non-minority students would amount to an invidious discrimination being violative of Art.14 of the Constitution of India, which also infringes the petitioner’s right under Art. 19(1) (g) and Art.30 of the Constitution of India. In the common counter affidavit filed on behalf of the third respondent, it was stated that percentages subject-wise viz., Mathematics, Physical Science, Biological Science, Social Studies and English is prescribed based on data supplied by State Council of Education, Research and Training (SCERT) as per the requirement of qualified teachers vis-à-vis the class rooms, or students ratio, subject-wise in the State of Andhra Pradesh. Apart from the same, the said percentages arrived at subject-wise in the impugned GO under Rule 5 (ii) is also approved by the first respondent and also by the Universities in the State of Andhra Pradesh. Rule 5 (ii) of the Rules either supplements or compliments the prescription if any laid down under NCTE Act. The prescription of methodology subject-wise by the first respondent is in fact in consonance with the dicta laid down by the Supreme Court in DR. PREETHI SRIVASTAVA V. STATE OF M.P [1] and STATE OF TAMIL NADU V. S.V. BRATHEEP[2]. Prescription of percentage in methodologies subject-wise under the Rules is based on an expert bodies survey recommendation, which is approved by the first respondent and also Universities in the State of Andhra Pradesh. Cancellation of admission of about 1770 non-minority students is the subject matter of dispute in WP No.23050/2007 and batch. As the petitioner-colleges have admitted majority of non-minority students in their colleges without following the triple test laid down by the Supreme Court in P.A. INAMDAR V. STATE OF MAHARASHTRA[3]’ ie., merit, transparency and non-exploitative manner, and grossly violated the dicta laid down by the Supreme Court and not followed the rules of admission, as a regulatory measure to discipline the colleges, one time penalty has been levied. The petitioner-colleges who are habitually violating the existing rules in one way or the other year after year have in fact paid the penalties levied for the academic year 2003-04, 2004-05 and 2005-06. G.O.Rt. No.295 dt. 30-4-2008 was issued considering the representation made by the Association of Managements of Minority Colleges of Education, Hyderabad dt. 16- 10-2007 including the petitioner colleges and others for regularizing the admission of 1770 students. Sri S.Niranjan Reddy, learned counsel for the petitioners in WP Nos.15895, 15896 and 16645 of 2008 contended that the Central Government in exercise of the legislative powers under Entries 65 and 66 of List I enacted NCTE Act. Section 12 of the NCTE Act prescribes functions of the Council and sub- sections (a) to (c) of Sec.12 empower the Council to take within its fold the coordination, development of teacher education and maintenance of standards of such education. Once NCTE sanctioned the intake capacity of 100 students, prescribing the methodology and distribution of students to various methodologies amount to encroaching into the field occupied by the Central legislation. So also, condition prescribing intake capacity in the methodology will also amount to reduction of intake capacity or regulating intake capacity. In para 20 of the affidavit filed in support of WP No.15895/2009, it was specifically pleaded by the petitioner that there are few students who are willing to opt for Mathematics, Physical Sciences and Biological Sciences methodologies, which is evident from the admission profile for the previous year, and the colleges are able to fill up social studies methodology ie., 30% of the seats and for other methodologies there are no sufficient number of candidates, therefore colleges are prevented from filling up of seats in the various methodologies as per Rule 5 of the Rules and the same is beyond the power of State Legislature, hence Rule 5 is liable to be struck down. In support of the said condition, reliance is placed on the judgment of the Supreme Court in STATE OF MAHARASHTRA V. SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA [4]. He further contended that Sec. 3 of the Capitation Fee Act regulates admission into educational institutions and Sec. 4 is the special provision in respect of minority educational institutions. Under sub- section (2) of Section 4, where minority educational instititon intends to admit students not belonging to the concerned minority, suh admission shall be only on the basis of the marks obtained in the qualifying examination on the basis of the ranking assigned in the entrance test conducted in the prescribed manner. When the Capitation Fee Act contemplates admission of non-minority students with certain restrictions, proviso to Rule 6 (b)(6) restricts allotment of seats only to the eligible candidates belonging to concerned minority, which is ultra vires the Section 4(2) of the Capitation Fee Act. Proviso to 6(b)(6) if implemented with its rigour it will restrict admission to minority candidates. Even the word ‘minority’ in clause (iii)(b) (6) of the Rules is omitted through G.O.Ms.No.98 Education (SE-Trg-1) Department dt. 6-12-2006 restriction imposed under Rules still continue to operation and the same is liable to be set aside. The impugned Rules made cannot be supplemented as contended by the Government in its counter. When the Capitation Fee Act does not contemplate constitution of a body, and the Capitation Fee Act did not provide standards of education, the Rules issued are not under any statutory power and the same are liable to be struck down. In support of the said contention, reliance is placed on the judgment of the Supreme Court in PREETHI SRIVASTAVA (DR) V. STATE OF M.P[5] Sri S.A.K.Mynuddin, learned counsel for the petitioners in W.P.Nos. 14692,16723,16751, 18721,18951,18952,20038 16984 of 2008 while adopting the arguments of Sri S.Niranjan Reddy contended that once the Government relaxed admission in deviation of methodology in memo No.6185/Trg/A1/2007 dt. 19-6- 2007 for the year 2006-2007, issuing G.O.Rt.No.295 dt. 30-4-2008 levying penalty for such deviation is contrary to the relaxation and the same is liable to be set-aside. He further contended that rules issued in G.O.Ms.No.92 dt. 16-11-2006 are not published in the required manner, therefore same will not come into operation. Before levying penalty through G.O.Rt.No.295, no notice has been issued to the petitioner-colleges and the same is in violation of principles of natural justice. Sri Sudesh Anand, learned Government Pleader for Education contended that NCTE only sanctioned seats but not distributed said seats in various branches. Prescription of methodology is as per Andhra Pradesh Colleges of Education (Regulation of Admission into B.Ed., course through Common Entrance Test) Rules, 1989 issued in G.O.Ms.No.154 dt. 27-4-2989 under A.P. Education Act. When NCTE lost sight of distribution of seats except sanctioning intake capacity of 100 seats and permitting the colleges to admit the students. Norms of admissions, which are regulated by the Rules, do not contradict with the occupied field.. To buttress the said submission, reliance is placed on the judgment of the Supreme Court in UNION OF INDIA V. ALOK KUMAR[6] In view of the rival submissions, the points that emerge for consideration in this batch of writ petitions are: 1. Whether sub rules (ii) and (iii) of Rule 5 prescribing methodology and rule 6 (b) (6) restricting admission to the candidates belonging to minority is repugnant to NCTE Act or Capitation Fee Act? 2. Whether levying of penalty in G.O.Rt.No.294 dt. 30-4- 2008 can be sustainable or not? POINTS 1 and 2: Section 12 of the NCTE Act prescribes the functions of the Council. Sub-section (a) to (c) of Sec.12 are relevant for the purpose of deciding the issue involved in the writ petitions, they read as under: 12. Functions of the Council .- It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may- (a) undertake surveys and studies relating to various aspects of teacher education and publish the result thereof; (b) make recommendations to the Central and State Governments, Universities, University Grants Commission and recognized institutions in the matter of preparation of suitable plans and programmes in the field of teacher education; (c) co-ordinate and monitor teacher education and its development in the country; Section 4 of the Capitation Fee Act is a Special provision in respect of minority educational institutions, which reads as under: (1) Notwithstanding anything in Section 3, it shall be lawful for any minority educational institution to admit students belonging to the concerned minority whether based on religion or language, on the basis of the marks obtained by them in the qualifying examination or as the case may be, on the basis of the ranking assigned to them in the entrance test conducted in the prescribed manner. (2) Where any minority educational institution intends to admit students not belonging to the concerned minority, such admission shall be only on the basis of the marks obtained in the qualifying examination or as the case may be, on the basis of the ranking assigned in the entrance test conducted in the prescribed manner. The Constitution Bench of the Supreme Court in M.KARUNANIDHI v. UNION OF INDIA[7] while holding that repugnancy may result from the following circumstances, namely, 1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. (2). Where however, a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. (3). Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential. (4). Where, however, a law made by the state Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254 (2) of the Constitution. The result of obtaining the assent of the president would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254, laid down the following conditions, which must be satisfied, before any repugnancy can arise: 1. That there is a clear and direct inconsistency between the Central Act and the State Act. 2. That such an inconsistency is absolutely irreconcilable. 3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with