HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO WRIT PETITION No.19501 of 2005 DATE: 24.04.2013 Between: Mohd. Jainulabadeen Educational Society, Rep. by its Secretary/Correspondent Mohd. Sadak Hussain. Katrenikona Village & Mandal, East Godavari District. .... Petitioner And Government of Andhra Pradesh, Rep. by its Principal Secretary (I.E.II) Department, Secretariat, Hyderabad. and two others. .... Respondents HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO WRIT PETITION No.19501 of 2005 ORDER: The petitioner is a society registered under the Societies Registration Act, 1860 and it made an application dt.05.08.2004 for starting a private junior college an incentive scheme in the name and style of Viswa Bharathi Junior College at door No.4-98/1 of Katrenikona Village and Mandal, East Godavari District. 2. It is the case of the petitioner society that along with its application, it had submitted registered lease deeds of the building where the college is proposed to be started in an extent of 10,893 sq.ft with 1.2 acres of vacant land and also additional 2 acres of vacant land; it has all necessary certifications for providing electricity, water and sanitation; when a three-man committee consisting of Principal of Government Junior College, Rajahmundry, Regional Inspector of Board of Intermediate Education, Rajahmundry and Regional Joint Director of Intermediate Education, Rajahmundry had inspected the premises on 10.11.2004, they were satisfied with all the requirements for establishment of a Junior College and had recommended it first in the order of merit; a State Level Committee headed by three I.A.S officers had verified also all records and was satisfied with all norms and also recommended the petitioner society as the first from all the applicants; but the permission to start the intermediate college was granted to 3rd respondent society under the impugned G.O.Ms.No.83 Higher Education (IE.II) Department dt.26.07.2005 even though 3rd respondent had not complied with all the requirements to establish a Junior College and the premises where the college was to be started by it was unfit for establishment of the college. It also alleged that the permission was granted on extraneous consideration and contrary to the norms to be followed for according permission. 3. The 1st respondent has filed a counter affidavit contending that the petitioner society and the 3rd respondent society were both recommended and both had complied with all the conditions as per the rules and regulations; the petitioner society cannot claim any preference on the basis that it was placed at Serial No.1 in the order of merit; and in fact the placing of the petitioner society at Sl.No.1 by the three-men committee is not on the basis of merit but only on the basis of alphabets. It is also contended that there is no illegality committed by the 1st respondent in permitting 3rd respondent society to start the new private junior college at Katrenikona Village and Mandal of East Godavari District. 4. The 2nd respondent filed a counter contending that five societies including petitioner and 3rd respondent had submitted applications for starting the new junior college in Katrenikona Mandal of East Godavari District; the three-men committee consisting of the Principal of Government Junior College, Rajahmundry, Regional Inspector of Board of Intermediate Education, Rajahmundry and Regional Joint Director of Intermediate Education, Rajahmundry have recommended both the petitioner society and the 3rd respondent society and placed them in the first and second places respectively; the Screening Committee constituted by the Government for setting up of private incentive colleges in college-less mandals recommended the petitioner society; but the Government have considered the application of the 3rd respondent society and issued orders in G.O.Ms.No.83 Higher Education(IE.II) Department dt.26.07.2005 permitting it to establish the incentive junior college at Katrenikona Mandal of East Godavari District; and that the Government is the competent authority to grant permission for establishing the incentive colleges in college-less mandals. It is also stated that the petitioner society has no locus standi to question the permission granted to 3rd respondent society as its application was duly considered on the basis of recommendation of the three-man committee and 3rd respondent society was given approval. 5. The 3rd respondent society also filed a counter contending that the petitioner society is not eligible for consideration as it did not own lands or buildings at Katrenikona village and the petitioner society only intends to run a college in the properties taken on lease; the lease was subsequently cancelled by the landlord; the petitioner society at the time of inspection by the inspecting committee had shown a pucca building and open land at D.No.4-98/1 for satisfying the requirements to start a college as per the Andhra Pradesh Educational Institutions (Establishment, Recognition, Administration and Control of Institutions of Higher Education) Rules, 1987; after the inspection, the lease which was obtained by the petitioner society was cancelled by the respective owners; so the petitioner society is running an unrecognized junior college in a thatched shed at door No.4-100 at Katrenikona Village. It is also alleged that the 3rd respondent society had fully complied with the requirements to establish the college and therefore, it was granted permission to start a private junior college under the incentive scheme during the academic year 2005-06 vide G.O.Ms.No.83 Higher Education (I.E.II) Department dt.26.07.2005. It is stated that it has already commenced the college and admitted 65 students in the first year Intermediate course for the academic year 2005-06. 6. Heard Sri T.V.S. Prabhakara Rao, counsel for the petitioner, Government Pleader for Higher Education for the 1st respondent, Smt. A. Padma, counsel for the 2nd respondent and Sri P.V.S.S.S. Rama Rao, counsel for the 3rd respondent. 7. The counsel reiterated the submissions mentioned above. 8. I have noted the respective contentions of the parties. 9. The State Government had issued G.O.Ms.No.114 Higher Education (C.E.III) Department dt.9.8.2000, G.O.Ms.No.35 Higher Education (C.E.III) Department dt.24.5.2001 and G.O.Ms.No.47 Higher Education (C.E.III) Department dt.20.06.2001 in relation to grant of permission for setting up of private junior colleges under private sector in Government identified college-less mandals for implementation of an incentive scheme with certain conditions and guidelines. A notification was issued by the Board of Intermediate Education on 20.07.2004 inviting applications from the private sector for starting of private junior colleges in the college-less mandals identified by the Government. The Government had identified the Katrenikona Mandal, East Godavari District as one of the college-less mandals. Pursuant to the notification issued by the Government, the petitioner, 3rd respondent and three others applied for permission to start a private junior college. The three applications were placed before the three-men committee consisting of Principal of Government Junior College, Rajahmundry, Regional Inspector of Board of Intermediate Education, Rajahmundry and Regional Joint Director of Intermediate Education, Rajahmundry. The screening committee inspected the premises of all the applicants and recommended the petitioner society as the first in order of merit after considering the factors such as total plinth area, type of construction, vacant land provided and facilities such as electricity, water and sanitation. The 3rd respondent society was placed second in the order of merit in view of lesser plinth area and vacant area offered by it. It is not disputed that even the screening committee constituted by the Government subsequently again recommended the petitioner society. Strangely, the 3rd respondent society was permitted by 1st respondent vide G.O.Ms.No.83 Higher Education (I.E.II) Department dt.26.07.2005 to start the private junior college. In the counter affidavit filed by the 1st respondent it is stated that the petitioner society was placed in Sl.No.1 not on the basis of merit but on the basis of alphabets. This is clearly contrary to the report of the three-man committee consisting of the Principal of Government Junior College, Rajahmundry, Regional Inspector of Board of Intermediate Education, Rajahmundry and Regional Joint Director of Intermediate Education, Rajahmundry dt.03.12.2004 wherein they specifically stated that the petitioner society is recommended as the first one “in the order of merit”. It is un-understandable as to how the petitioner society’s claim to start the private junior college could have been overlooked in the light of this recommendation of the three-men committee’s report dt.03.12.2004 and also similar report of the screening committee of the Government reiterating it. If the facilities provided by the petitioner society are found to be better than those provided by the 3rd respondent society, the 1st respondent cannot say that it will choose the 3rd respondent society. The said decision of the 1st respondent appears to be based on extraneous consideration and one taken by ignoring the relevant parameters to be applied in granting permission for starting of new private junior colleges under the incentive scheme. The 1st respondent should have given weight to the recommendations of its own screening committee and also the screening committee of the 2nd respondent and cannot ignore the said recommendations. The 1st respondent cannot act in such an arbitrary fanciful manner ignoring the recommendations of not only the Board of Intermediate Education committee but also its own screening committee. 10. In E.P.Royappa Vs. State of Tamil Nadu and Another[1], the Supreme Court at para 85 declared: “From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and Constitutional law and is therefore violative of Article 14……” “…….Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on equivalent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former.” 11. Accordingly, the Writ Petition is allowed and the impugned G.O.Ms.No.83 Higher Education (I.E.II) Department dt.26.07.2005 issued by 1st respondent permitting 3rd respondent society to start a new private junior college in Katrenikona Village and Mandal, East Godavari District is declared as illegal, arbitrary and unsustainable and direction is given to the respondent Nos.1 and 2 to consider the case of the petitioner society for starting a new private junior college in the said Mandal. The respondent Nos.1 and 2 shall take steps to implement this order within a period of four weeks from the date of receipt of copy of this order. No costs. 12. Consequently, the miscellaneous applications, filed in this Writ Petition shall stand disposed of. ________________________________ M.S.RAMACHANDRA RAO, J 24th April 2013 scs [1] AIR 1974 S.C. 555