IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF JUNE TWO THOUSAND AND EIGHTY PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 11347 of 2008 Between: A.P.Private Engineering Colleges, Managements's Association, Rgd.No. 681/1981, A.V.College Campus, Gagan Mahal, Hyderabad, rep. by its Secretary Sri P.Balaji. ..... PETITIONER AND 1 State of Andra Pradesh, Rep. by The Principal Secretary to Government Higher Education ( EC.2 ) Department, Secretariat, Hyderabad. 2 The Chairman, A.P.State Council for Higher Education & Competent Authority, Saifabad, 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, in the nature of a Writ of Mandamus or any appropriate Writ, direction or order declaring G.O.Ms.No.61, Higher Education (EC.2) Department, Dated 13-05-2008 of the Government of Andhra Pradesh, excepting Guideline No. 7, as illegal and aviod; and pass Counsel for the Petitioner: MR.T.S.N.MURTHY Counsel for the Respondent No1 : GP FOR HIGHER EDUCATION Counsel for the Respondent No.2: SC for APSCHE WRIT PETITION NO : 11413 of 2008 Between: 1 G. Pulla Reddy Engineering College, Kurnool, rep. by its Secretary/ Correspondent, Sri.P.Subba Reddy, S/o. P. Venkat Reddy R/o. H.No. 10-2-289/21, Shanthi Nagar, Hyderabad. 2 G.Narayanamma Institute of Technology for Women, Hyderabad, rep. by its Secretary/ Correspondent, Sri.P.Subba Reddy, S/o. P. Venkat Reddy R/o. H.No. 10-2-289/21, Shanthi Nagar, Hyderabad. ..... PETITIONER(S) AND 1 State of Andhra Pradesh, Rep. by its Principal Secretary to Government, Higher Education(EC-2) Department, Secretariat, Hyderabad. 2 The Chairman, A.P.State of Council for Higher Education and Competent Authority, Saifabad, 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 direction declaring the G.O.MS.No.61 Higher Education(EC.II) Department, dated 13.05.2008 except Guideline No.7, issued by the 1st Respondent as illegal, arbitrary and contrary to the Rules and pass Counsel for the Petitioner: MR.O.MANOHER REDDY Counsel for the Respondent No.1: GP FOR EDUCATION Counsel for the Respondent No.2: SC for APSCHE WRIT PETITION NO : 11430 of 2008 Between: M/s. Matrusri Education Society, Saidabad, Hyderabad, rep. by its Secretary Mr. T. Jitendranath, S/o. Srinivas RAo, aged about 62 years R/o.H.No.1-18-35/2, MES Colony, Ramnagar, Alwal, Secunderabad. ..... PETITIONER AND 1 State of Andhra Pradesh, rep. by the Principal Secretary to Government Higher Education (EC.2) Department, Secretariat, Hyderabad. 2 The Chairman, A.P. State Council of Higher Education & Competent Authority, Saifabad, 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 an order direction or writ particularly one in the nature of Writ of Mandamus or any other appropriate writ declaring G.O.Ms.No.61 Higher Education (EC.2) Department, dated 13.05.2008 of the Government of A.P. excepting Guideline No.7 as illegal and void and pass Counsel for the Petitioner: MR.G.VIDYASAGAR Counsel for the Respondent No.1: GP FOR EDUCATION Counsel for the Respondent No.2: SC FOR APSCHE The Court made the following : COMMON ORDER: 1. Since a common issue is involved in all these three writ petitions, they are heard together and are being disposed of by this common order. 2. The petitioner in W.P.No.11347 of 2008 is A.P.Private Engineering Colleges Management’s Association (hereinafter referred to as ‘Association’) represented by its Secretary-P.Balaji. The petitioner in W.P.No.11430 of 2008 is M/s Matrusri Educational Society, Saifabad represented by its Secretary-Mr.T.Jitendranath and the petitioners in W.P.No.11413 of 2008 are G.Pulla Reddy Engineering College, Kurnool and G.Narayanamma Institute of Technology for Women represented by their Secretary/Correspondent-P.Subba Reddy. 3. The petitioners seek a writ of mandamus to declare G.O.Ms.No.61, Higher Education (EC.2) Department, Dated 13.5.2008 except Guideline No.7 issued by the State of Andhra Pradesh-1st respondent as illegal and contrary to Andhra Pradesh Unaided Non Minority Professional Institutions (Regulation of Admission into Under Graduate Professional Courses through Common Entrance Test) Rules, 2006 (for short Rules, 2006). 4(a). It is suffice to refer contents of the writ affidavit filed in W.P.No.11347 of 2008. Sri.P.Balaji, Secretary of A.P. Private Engineering Colleges Management’s Association has sworn to the writ affidavit. The writ affidavit in brief is that the petitioner-Association is a Society registered under Andhra Pradesh (Telangana Area) Societies Act bearing Regd.No.681/1981, dated 28.4.1981 comprising 86 members. The Government of Andhra Pradesh in exercise of powers conferred under Sections 3 and 15 of Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (A.P.Act 5/1983) made Rules, 2006 for admission into under graduate professional courses in engineering, including technology and pharmacy in unaided non-minority professional institutions in the State of Andhra Pradesh. These Rules, 2006 provide for allotment of seats, eligibility criteria for admission, method of admission and procedure of admission and filling up of seats in unaided non-minority institutions in professional courses. Rule 6(ii) of Rules, 2006 deals with filling up of Category-B seats (20 %). The members of petitioner-Association have been notifying the details of seats available under Category-B seats and conducting the admission in a fair, transparent and non-exploitative manner. 4(b). Some of the candidates filed W.P.Nos.16290, 16585, 17286 and 17363 of 2007 against Chaitanya Bharathi Institute of Technology, Gandhipet, Hyderabad and Mahatma Gandhi Institute of Technology, Gandipet, Hyderabad, complaining that the admissions under Category-B are not transparent. A Division Bench of this Court disposed of the writ petitions by a common order dated 28.9.2007. Two issues fell for consideration before the Division Bench and they are: (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 2007-08 constitutes sufficient compliance of Rule 6(ii)(1) of the Rules. On issue No.1 the Division Bench held as follows: “ It is therefore to obviate the possible manipulation by the private managements that it is very much essential for them to inform the general public either by way of a press publication or through electronic media that the merit list will be displayed in the notice board during a specified period and the intending candidates are allowed free access at scheduled hours to visit the premises and apply for admission. This is how, in our opinion, the words ‘notify’ and ‘fair’ and ‘transparent’ occurring in Rule 6(ii)(1) shall be understood.” On issue No.2 the Division Bench held that the procedure adopted by the two colleges therein was contrary to Rules, 2006. 4(c). The above referred writ petitions came to be disposed of with certain directions, which read as under: “ 35. We therefore have no hesitation to hold that the procedure being followed by respondent No.3 in admitting the students into the engineering courses of respondent Nos.4 and 5 colleges is contrary to the rules. However, since selections for the academic year 2007-08 have already been made though they were not finalized in view of the interim directions granted pending these writ petitions and as the selected candidates are not before us, we refrain from setting aside the selections made by respondents 3 and 4 colleges. But, however, we feel it expedient in large public interest to give the following directions in respect of the procedure to be followed in notifying the merit list for filling up the ‘B’ category seats: 1. Respondents 1 and 2 shall ensure that the unaided non-minority private engineering colleges in the State shall strictly adhere to Rule 6(ii)(1) of the Rules by notifying the merit list in the manner indicated in this judgment. They shall also ensure that these details are uploaded in the respective colleges’ websites apart from the websites of respondents 1 and 2. 2. Respondent No.2 which is the competent authority to approve the list of admissions in respect of category ‘B’ seats shall issue operating guidelines to effectuate Rule 6(ii)(1) of the Rules. 3. Respondent No.2 shall actively oversee the process of admissions by the unaided non-minority private managements from the time of commencement of the process till the approval of the list submitted by the colleges and shall take appropriate action wherever it finds that the colleges indulged in violation of the Rule either by not following the procedure in the proposed operating guidelines or by denying seats to students with superior merit and who have duly applied for seats; and 4. Respondent NO.3 shall provide seats to petitioner No.1 in W.P.No.16585 of 2007, the petitioners in W.P.Nos.16290 of 2007, petitioner No.1 in W.P.No.17363 of 2007 and petitioner No.1 in W.P.No.17286 of 2007 subject to the availability of seats in ‘ B’ category and their eligibility, merit and willingness to join either of the respondent Nos.3 and 4 colleges. Within three days the petitioners shall approach respondent Nos.3 to 5 for this purpose. In the event admissions are denied to the aforementioned petitioners, respondent No.3 shall communicate reasons therefore in writing to the respective petitioners within two days of petitioners approaching them and complying with all formalities.” 4(d). The Secretary, A.P. State Council for Higher Education held discussions with the Association. The meeting was attended by the office bearers of the Association, Chairman, A.P. State Council for Higher Education, Principal Secretary to Government, Higher Education Department and the Commissioner for Technical Education. In the said meeting the Association assured that they would abide by the directions issued by this Court and notify the merit list in the newspapers or on the website of the college, and the notice Board of the college. Thereafter, Government issued G.O.Ms.No.61 Higher Education (EC.2) Department, dated 13.5.2008 detailing the guidelines to be followed for admissions in Category-B seats. The Government has no power or jurisdiction to issue guideline Nos.1 and 2 and therefore guideline Nos.1 and 2 are not only illegal as being opposed to Rule 6(ii)(1) but also ultravires to Rules, 2006 and contrary to the judgment of the Division Bench of this Court. Hence, these writ petitions. 5. The State of Andhra Pradesh represented by Principal Secretary to Government, Higher Education (Ec.2) Department (1st respondent) filed counter affidavit. Sri.R.M.Dobriyal, Special Secretary to Government, Higher Education Department, Government of Andhra Pradesh, Hyderabad has sworn to the counter affidavit filed on behalf of 1st respondent and whereas Sri.M.D.Christopher, Secreatary, A.P. State Council of Higher Education, Government of Andhra Pradesh, Hyderabad sworn to the counter affidavit filed on behalf of the 2nd respondent. 6. The sum and substance of the counter affidavits is that the guidelines in G.O.Ms.No.61 Higher Education (EC.2) Department, dated 13.5.2008 came to be issued in pursuance of the directions given by the Division Bench of this Court and after due deliberations with the members of Association. For better appreciation, I may refer para 7 of the counter affidavit of 2nd respondent, which reads as under: “ 7. With respect to averments contained in paras 10 to 11 of the affidavit it is respectfully submitted that in the light of the judgment of the Division Bench of Hon’ble High Court dated 28.9.2007 this respondent i.e. Competent Authority discussed with the members for the petitioner-Association for arriving at a consensus opinion before considering to issue the guidelines in G.O.Ms.No.61. The members of the petitioner Association apart from assuring that they would abide by the directions of the Hon’ble High Court requested the Competent authority to issue a centralized notification inviting applications from the candidates who desire admissions in category B seats of all the member colleges as issuing separate notifications by each of the college will be very expensive proposition. It is further respectfully submitted that in accordance with the Apex Court directions in P.A. INAMDAR case vide the extracts of the judgment furnished above has ample jurisdiction to regulate the admissions under category A seats. The guideline Nos.1 and 2 to Rule 6(ii)(1) were framed only in consonance with the proposals of the members of the petitioner Association in the meeting mentioned supra. Further, it is submitted that admission schedule is given by the convenor EAMCET admissions to fill up category A seats which is empowered in Rule 6(i)(3) of G.O.Ms.No.53. There is every need that the admission schedule of category B seats also synchronizes with the admission schedule of category A seats so that the commencement of class work of the academic year of all the Engineering and Pharmacy colleges in the State will be on the same date. That apart the grounds raised by the petitioners herein that guidelines 1 and 2 issued by the 1st respondent is without jurisdiction and the same is contrary to Rule 6(ii)(1) is not correct and the same is denied by this respondent. In fact there is absolutely no attempt made by the members of the petitioner’s Association to fill up 15% NRI seats as per the dicta laid down by the Apex Court in P.A.INAMDAR’s case and therefore it, necessitated the 1st respondent to issue G.O.Ms.No.61 to facilitate by way of regulation to issue all India notification to fill up the said 15% NRI seats in category B quota.” 7. Heard Sri.E.Manohar, learned Senior Counsel appearing for the petitioner-Association in W.P.No.11347 of 2008, Sri.O.Manohar Reddy, learned counsel appearing for the petitioner in W.P.No.11413 of 2008 and Sri.G.Vidyasagar, learned counsel appearing for the petitioner in W.P.No.11430 of 2008 and learned Government Pleader for High Education appearing on behalf of 1st respondent and learned Standing Counsel for APSCHE appearing on behalf of 2nd respondent. 8. Learned Senior Counsel submits that the guidelines issued in G.O.Ms.No.61, Higher Education (EC.2) Department, Dated 13.5.2008 more particularly guideline Nos.1 and 2 are contrary to Rule 6(ii) of Rules, 2006. Learned Senior Counsel took me extensively to the guidelines issued in the above referred to Government Order and also to Rules, 2006 laying much emphasis on Rule 6(ii) of the Rules, 2006 which deals with admissions to Category-B seats. Learned Senior Counsel by drawing my attention to Rule 6(iii) of the Rules, 2006 submits that the Convenor of EAMCET admissions is empowered to notify the schedule for admissions in respect of Category A seats (80 %). Such a power does not find place in Rule 6(ii)(1) which deals with admission to Category-B seats (20%) and therefore the guideline Nos.1 and 2 which authorizes the competent authority to notify the schedule for admissions in respect of Category-B seats is contrary to Rules, 2006 and thus guideline Nos.1 and 2 are to be declared as illegal and beyond the competency of the Government. Learned Senior Counsel also submits that the executive instructions as contemplated under Article 162 of the Constitution of India cannot be permitted to contravene the statutory Rules and on this score also the guidelines in the above referred government order are to be declared as void. In support of his submissions, reliance has been placed on the decisions of Supreme Court in POST MASTER GENERAL, KOLKATA AND OTHERS V. TUTU DAS (DUTTA)[1] and PUNJAB WATER SUPPLY & SEWERAGE BOARD v. RANJODH SINGH[2]. 9. There cannot be any dispute with regard to the proposition of law laid down in the above two decisions of the Supreme Court that the executive instructions issued by the Government in exercise of powers under Article 162 of the Constitution cannot be in violation of the statutory Rules. 10. Sri.O.Manohar Reddy, learned counsel appearing for the petitioner in W.P.No.11413 of 2008 and Sri.G.Vidyasagar, learned counsel appearing for the petitioner in W.P.No.11430 of 2008 adopted the arguments advanced by Sri.E.Manohar, learned Senior Counsel. 11. Learned Government Pleader for Higher Education appearing for the 1st respondent submits that the guidelines came to be issued pursuant to the directions given by a Division Bench of this Court in W.P.No.16290 of 2007 and batch (M.RATIN AND ANOTHER V. GOVERNMENT OF A.P. AND OTHERS[3]) and after due deliberations with the Association. Learned Standing Counsel appearing for APSCHE- 2nd respondent submits that the guidelines came to be issued to have transparency in the admissions in respect of Category B seats and it is members of the Association who sought for centralized notification. 12. The core issue involved in these writ petitions is – whether the guidelines issued in G.O.Ms.No.61, Higher Education (EC.2) Department, Dated 13.5.2008 are contrary to Rules, 2006 or not? 13. The procedure for filling up of seats Category-B (20%) is prescribed in Rule 6(ii) of Rules, 2006. Rule 6(ii) of Rules, 2006, reads as under: “ 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 seats still exists, such seats may be filled with eligible candidates including those 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 Institutions. (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 the respective institutions.” 14. Learned Senior Counsel laying much emphasis on Rule 6(ii)(1) of Rules, 2006 contends that it is the privilege of the institution to notify all the details of seats available under category B and conduct the admissions. 15. Rules, 2006 came to be framed by the Government in exercise of the powers conferred by Sections 3 and 15 of Act 5, 1983. In the earlier batch of writ petitions, students approached the Court complaining that the institutions are not notifying the details of seats available and no transparency in the admission in respect of Category-B seats. The Division Bench of this Court has taken note of all the relevant Rules and decisions of Supreme Court in ISLAMIC ACADEMY OF EDUCATION AND ANOTHER V. STATE OF KARNATAKA[4], TMA PAI FOUNDATION AND OTHERS V. STATE OF KARNATAKA AND OTHERS[5] and UNNI KRISHNAN, J.P. V. STATE OF A.P.[6] and proceeded to issue the directions referred to above. In compliance of the directions issued by this Court the Government issued G.O.Ms.No.61, Higher Education (EC.2) Department, Dated 13.5.2008. Apparently, this government order came to be issued in exercise of the powers conferred under Article 162 of the Constitution of India, which reads as under: “ 162. Extent of executive power of State: Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.” 16. It is settled that establishing and administering of an educational institution for imparting knowledge to students is an occupation protected by Article 19(1)(g) and additionally by Article 26(9), if there is no element of profit generation. As of now, imparting education comes to be a means of livelihood for some professionals and a mission in life for some altruists. 17. The occupation of education is regarded as charitable and that while profiteering by the private educational institution cannot be permitted, they can be allowed reasonable surplus which may be generated by the educational institution for the purpose of development of education and expansion of the institution. 18. Before issuing the government order impugned in these writ petitions, the competent authority (2nd respondent) discussed the issue with regard to further guidelines to be issued to make the admissions in Category B seats more transparent, fair and non-exploitative manner with the members of the Association. All the members of the Association requested the competent authority i.e. 2nd respondent to issue a centralized notification inviting applications from the candidates who desire admissions in Category-B seats. 2nd respondent has specifically asserted in the counter affidavit that the guidelines issued in G.O.Ms.No.61, Higher Education (EC.2) Department, Dated 13.5.2008 were preceded by the discussions with the members of the Association. Therefore, the Government issued the guidelines to make the admissions in Category-B more transparent. The guidelines are not in contravention of Rules, 2006 and indeed the guidelines are to see that the private unaided colleges undertake admissions of Category-B seats in a fair, transparent and unexploitative manner. By the guidelines issued in the impugned government order, the right of admission of the management of the respective institution in respect of Category-B seats is not fettered. Indeed it facilitates the students aspiring admission under Category-B seats to know as to how many seats are available at a glance on seeking the centralized notification. Therefore, I do not see any substance in the contentions of the learned Senior Counsel that the guidelines in G.O.Ms.No.61, Higher Education (Ec.2) Department, dated 13.5.2008 are in violation of Rules, 2006. 19. In view of the above, these Writ Petitions are dismissed. In the circumstances no order as to costs. 23rd June, 2008. (B.Seshasayana Reddy,J) tnb THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WP.NOS.11347, 11413 AND 11430 OF 2008 POSTED IN WEB. 23rd JUNE 2008. [1] (2007) 5 SCC 317 [2] (2007) 2 SCC 491 [3] 2008 (3) ALD 105 (DB) [4] (2003(6 SCC 697 [5] (2002) 8 SCC 481 [6] (1993) 1 SCC 645