*THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION NO : 11994 of 2009 % 20/08/2009 # R.J.R.M. Degree College, Maripeda Village and Mandal, Warangal District rep. by its Correspondent, G. Ashok Reddy ..... PETITIONER Vs. 1 Government of Andhra Pradesh, rep. by its Principal Secretary to Government, Department of Higher Education at Secretariat, Hyderabad. 2 The Andhra Pradesh State Council of Higher Education rep. by its Secretary, at Masabtank, Hyderabad. …Respondents $ < Gist > Head Note: ! Counsel for the petitioner : MR. N.SRIDHAR REDDY ^ Counsel for the respondents: GP FOR HIGHER EDUCATION Cases referred : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 11994 of 2009 Between: R.J.R.M. Degree College, Maripeda Village and Mandal, Warangal District rep. by its Correspondent, G. Ashok Reddy ..... PETITIONER AND 1 Government of Andhra Pradesh, rep. by its Principal Secretary to Government, Department of Higher Education at Secretariat, Hyderabad. 2 The Andhra Pradesh State Council of Higher Education rep. by its Secretary, at Masabtank, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Mandamus or any other appropriate writ or writs, order or direction declaring and setting aside G.O.Ms.No.22, Higher Education (CE-I-2) Department dated 28.2.2009 on the file of the first respondent, to the extent of seeking to establish a Government Degree College at Maripeda Mandal in Warangal District, as illegal, arbitrary and contrary to A.P. Education Act and rules made thereunder; Award costs. Counsel for the Petitioner : MR. N.SRIDHAR REDDY Counsel for the Respondents : GP FOR HIGHER EDUCATION The Court made the following : THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION No : 11994 of 2009 O R D E R : The petitioner herein is a degree college located in Maripeda Village and Mandal in Warangal District. This writ petition is filed seeking a declaration that the permission granted by the first respondent – Government of A.P. - vide G.O.Ms.No.22 dated 28-02-2009 for establishment of a Government Degree College at Maripeda Mandal in Warangal District for the academic year 2009-2010 is arbitrary and illegal. It is contended by the petitioner that establishment of a new Degree College in Maripeda Mandal is contrary to the Andhra Pradesh Educational Institutions Establishment Recognition, Administration and Control of Institutions of Higher Education Rules, 1987 made under G.O.Ms.No.29 dated 05-02-1987. It is also contended that in the absence of a notification by the second respondent – A.P. State Council for Higher Education - inviting proposals to establish a new college, the first respondent ought not to have granted permission under the impugned order. A counter affidavit has been filed on behalf of the first respondent stating that there are at present three junior colleges in Maripeda Mandal under Government/Private sectors and 783 students have appeared for the Intermediate examinations during the academic year 2009 and out of them 273 have passed the examinations. Keeping in view the pass outs in Intermediate examination from Maripeda Mandal and other surrounding Mandals of Dornakal Assembly constituency, it has been decided by the Government in principle for establishment of a new Government Degree College at Maripeda Mandal for the academic year 2009- 2010. Accordingly, the impugned notification was issued for establishment of a new Government Degree College at Maripeda Mandal apart from 7 other Colleges in different places in the State. I have heard the learned counsel for both the parties and perused the material on record. As per Section 20 of the Andhra Pradesh Education Act, 1982 (for short ‘the Act’) the competent authority shall conduct a survey so as to identify the educational needs of the locality under its jurisdiction and notify through the local news papers calling for applications from the educational agencies desirous of establishing educational institutions. Such a notification was admittedly issued on 27-12-2008 by the second respondent- Andhra Pradesh State Council for Higher Education inviting applications from registered educational societies/colleges for establishment of new private Unaided Degree Colleges during the academic year 2009-2010 in certain identified Mandals in the State. So far as Warangal District is concerned, Maripeda Mandal was not included in the identified Mandals. It is therefore contended by the petitioner that there is no need in the locality to establish a new educational institution and in the absence of such educational need, the first respondent committed a grave error in granting permission under the impugned order. For proper appreciation of the petitioner’s contention it is necessary to notice Section 20 of the A.P. Education Act, 1982, which runs as under : “20. Permission for establishment of educational institutions:- (1) The competent authority shall, from time to time, conduct a survey as to identify the educational needs of the locality under its jurisdiction, and notify in the prescribed manner through the local newspapers calling for applications from the educational agencies desirous of establishing educational institutions. (2) In pursuance of the notification under sub-section (1), any educational agency including local authority or registered body of persons intending to – (a) establish an institution imparting education; (b) open higher classes in an institution imparting primary education; (c) upgrade any such institution into a high school; or (d) open new courses (Certificate, Diploma, Degree, Post-Graduate Degree courses, etc.) may make an application, within such period in such manner and to such authority as may be notified for the grant of permission therefor. (3) Any educational agency applying for permission under sub-section (2) shall,-- (a) before the permission is granted, satisfy the authority concerned, -- (i) that there is need for providing educational facilities to the people in the locality; (ii) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority; (iii) that the institution is proposed to be located in sanitary and healthy surroundings; (b) enclose to the application,-- (i) title deeds relating to the site for building, playground and garden proposed to be provided; (ii) plans approved by the local authority concerned which shall conform to the rules prescribed therefor; and (iii) documents evidencing availability of the finances needed for constructing the proposed buildings; and (c) within the period specified by the authority concerned in the order granting permission,-- (i) appoint teaching staff qualified according to the rules made by the Government in this behalf; (ii) satisfy the other requirements laid down by this Act and the rules and orders made thereunder failing which it shall be competent for the said authority to cancel the permission. (4) On and from the commencement of the Andhra Pradesh Education (Amendment) Act, 1987, no educational institution shall be established except in accordance with the provisions of this Act and any person who contravenes the provisions of this section or who after the permission granted to him under this section having been cancelled continues to run such institution shall be punished with simple imprisonment which shall not be less than six months but which may extend to three years and with fine which shall no be less than three thousand rupees but which may extend to fifty thousand rupees: Provided further that the Court convicting a person under this section shall also order the closure of the institution with respect to which the offence is committed.” As could be seen, Section 20 (4) of the Act provides that on and from the commencement of the Andhra Pradesh Education Amendment Act, 1987, no educational institution shall be established except in accordance with the provisions of the Act. The expression “Educational Institution” has been defined under Section 2(18) of the Act as recognized school, special institution or other institution, the management of which carries on the activity of imparting education thereunder. The word “Management” has been defined under Section 2(27) of the Act as the Managing Committee or the governing body, by whatever name called, of a Private Institution under which the affairs of the said institution are entrusted, but does not include a manager. On a careful reading of Section 20 (4) together with Section 2(18) & (27) of the Act, it is clear that private institutions alone are covered and the Government institutions do not come within the purview of Section 20 of the Act. However the learned counsel for the petitioner while referring to Rule 1(2) of the Andhra Pradesh Educational Institutions Establishment Recognition, Administration and Control of Institutions of Higher Education Rules, 1987 (for short ‘the Rules) made under G.O.Ms.No.29 dated 05-02-1987 contended that even the Government institutions are governed by Section 20 of the Act. It is true that Rule 1(2) of the said Rules which are made in exercise of the powers conferred by Section 20 and 21 r/w. Section 99 of the Act provides that the said Rules apply to all educational institutions both Government and private imparting the classes/categories of education specified thereunder including the Degree Colleges. Rule 4 of the said Rules further provides that permission for establishment of any of the educational institutions mentioned in Rule 1(2) shall be granted only if the conditions laid down in Section 20 of the Act are specified and after obtaining the prior approval of the Commissionerate under Section 11(2) of the Andhra Pradesh Commissionerate of Higher Education Act, 1986. Rule 4(2) of the Act further made it clear that no permission shall be granted if the educational needs of the locality are adequately served already and in the opinion of the competent authority the opening of a new institution is likely to create unhealthy and undesirable competition with another institution of the same class/category in the area. It is apparent that Rule 1 (2) read with Rule 4 of the Rules is in conflict with Section 20 of the Act. The law is well-settled that a Rule which is inconsistent with a Section in the Parent Act is ultra vires. It has been held by the Courts in a catena of decisions that conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. The Rules under G.O.Ms.No.29, dated 5.2.1987 which are made in exercise of the power conferred by Sections 20 & 21 read with Section 99 of the A.P. Education Act, 1982 are required to be within the scope and bounds of the power delegated and cannot be contrary to the provisions of the A.P. Education Act, 1982 i.e., the Parent Act. Having regard to the clear and unambiguous language of Section 2 (18) read with Section 2 (27) of the A.P. Education Act, 19823, which made it clear that the Government Colleges do not come within the purview of Section 20, merely because Rule 1(2) of the Rules states that the Rules are applicable to all educational institutions both Government and Private, it cannot be held that the identification of the need is mandatory even for establishment of Government institutions. In the circumstances, the petitioner’s contention that the permission granted for establishment of a Government Degree College at Maripeda Mandal in Warangal District under the impugned order dated 28.02.2009 is illegal is without any substance and untenable. Accordingly, the Writ Petition, which is devoid of any merit, is hereby dismissed. No costs. ______________ G. ROHINI, J. Date: 20.08.2009 KLP Note: L.R.copy to be marked.