* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR + WRIT APPEAL Nos.255, 276, 336, 422 and 430 of 2010 % Dated 25.06.2010 # K.Prakash, And others. …Petitioners VERSUS $ The Government of Andhra Pradesh, Higher Education Department, Secretariat, Hyderabad, Rep.by its Principal Secretary, And others. …Respondents ! Counsel for Petitioners: Sri A.Sanjeev Kumar Sri N.Ashok Kumar Sri D.Govardhana Chary Sri P.Pandu Ranga Reddy ^ Counsel for Respondents : G.P for Higher Education Sri Kasa Jagan Mohan Reddy Sri C.Sudesh Anand Sri Gaddam Srinivas Sri S.Niranjan Reddy Sri M.V.S.Sai Kumar <GIST: >HEAD NOTE: ? Cases referred 1. (1996) 9 SCC 309 2. (2004) 4 SCC 513 3. (2002) 6 SCC 343 4. (2003) 12 SCC 701 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL Nos.255, 276, 336, 422 and 430 of 2010 Dated:25.06.2010 Between: K.Prakash, And others. ...Appellants And The Government of Andhra Pradesh, Higher Education Department, Secretariat, Hyderabad, Rep.by its Principal Secretary, And others. ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT APPEAL Nos.255, 276, 336, 422 and 430 of 2010 COMMON JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The appellants in the first three appeals were admitted to I year MBA course in private colleges offering management education. The appellants in the other two appeals were admitted to I year B.Tech course in private Engineering Colleges during academic year 2009- 2010. All of them were admitted against seats what are described by the relevant statutory rules as Category-B seats. The relevant rules provide that a person to be qualified for admission to Category-B seats either in MBA/MCA or B.E I year must get 50% aggregate in the qualifying examination i.e., Degree or intermediate/10+2/CBSE etc. or must have obtained 50% in the group subjects. As required under the relevant rules the respective private professional colleges submitted the proposals to the Andhra Pradesh State Council for Higher Education (State Council) for approval of the admissions made by the respective managements against category-B seats. The State Council sometime in December/January 2009 approved the admissions of those students with 50% aggregate either in the qualifying examination or in group subjects, but rejected approval to the appellants herein. In all such proceedings it was reasoned that due to less percentage the admission of the appellants could not be approved. Aggrieved by the non-approval by the State Council, the appellants filed writ petitions, inter alia, contending that the 60% minimum aggregate in the qualifying examination was reduced by the Government itself to 50% and that in yester years on more than one occasion the Government itself permitted State Council to grant relaxation by collecting penalty. Learned single Judge by impugned order dated 31.03.2010 dismissed the writ petitions observing that in the absence of statutory compliance with 50% aggregate rule the appellants cannot seek a mandamus. Reliance was placed on State of Uttar Pradesh v Harish Chandra[1], which reiterated the axiom that no mandamus shall issue from the Court, which would go contrary to law. Keeping in view the plight of the appellants - some of them still in their teens; we have patiently heard the submissions of the Counsel. We have given anxious consideration to the background facts and the law – both statute and precedent; and have come to conclusion that except in W.A.No.276 of 2010, which is governed by two decisions of the Supreme Court, we have no reason to deviate from the reasoning or the conclusions of the learned single Judge. We respectfully, for the reasons to follow, confirm the impugned judgment. Andhra Pradesh Regulation of Admissions into MBA/MCA Professional Courses through Common Entrance Test Rules, 2006 (hereafter MBA Rules) govern the admission to MBA/MCA in colleges in public as well as private sector. The Andhra Pradesh Unaided Non-Minority Professional Institutions (Regulation of Admissions into Under-graduate Professional Courses through Common Entrance Test) Rules, 2006 (hereafter called, Undergraduate Rules), govern admission to various Undergraduate Professional Courses like B.Ed, M.B.B.S, B.E. Both sets of the Rules are promulgated by the State in exercise of their delegated legislative power under Sections 3 and 15 of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (the Act). It is trite that the statutory rules made by the delegated authority form part of parent Act and shall be governed by the same principles of interpretation. It is also well settled that when the statutory rules prescribe qualifications and also criteria for admission to various Educational Institutions and Educational courses, the Courts cannot interfere in such matters although it is always open to the Court to interpret a particular rule laid under qualifications. Keeping this in view we may state that as both sets of rules are in paramateria and in similar terms we may refer to Undergraduate Rules for the sake of convenience. Category-A seats are those seats to which admissions are made from the list selected by the Convener from out of the candidates who obtained ranks in EAMCET (Engineering, Agricultural and Medical Common Entrance Test) and Category-B seats are those which are within the purview of management of the private professional institutions. The relevant clauses need to be read as extracted hereunder. TO FILL UP CATEGORY-B SEATS (20%) IN UNAIDED NON-MINORITY/MINORITY INSTITUTIONS (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 50% of aggregate marks of Cumulative Grade Point Average (CGPA) equivalent to “5” on a scale of 10. (3) The left over seats shall be filled on merit basis 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 any All India Common Entrance Test. (4) If vacant seats still exist, such seats may be filled on merit basis with eligible candidates including those securing not less than 50% of aggregate marks or 50% 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 Institution. (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 to the respective Institutions. (emphasis supplied) The controversy in these matters is with regard to the vacant seats after filling up all the seats as per the list communicated by the Convener. As per clause 4 above all the vacant seats shall be filled on merit basis with eligible candidates including those securing not less than 50% of aggregate marks or 50% in the group subjects. A student aspiring for a seat either in MBA or B.E in this category must have obtained 50% aggregate or 50% in group subjects. There is no dispute that the appellants in these appeals (except W.A.No.276 of 2010) did not secure 50% of aggregate marks or 50% in group subjects in the qualifying examination. We may also mention that even as per Rule 3, which deals with eligibility criteria for admission to non-minority and minority professional institutions, their admission is contrary to Rule 6(iii). In State of Tamil Nadu v S.V.Bratheep[2] a question arose as to whether it was competent to the State of Tamil Nadu to prescribe eligibility marks for admission to Undergraduate Engineering Courses. Paragrapah 1.1 of the guidelines prescribed by the All India Council for Technical Education (AICTE) provided that the minimum marks for eligibility for entrance test need not be prescribed in cases of degree courses and all students who have passed qualifying examination may be permitted to appear in the entrance test. In the face of such guideline the State of Tamil Nadu prescribed 50% minimum marks in the related subjects for backward students and 60% to others. The conflict between the AICTE Regulation and State made Regulation was put in issue before the learned single Judge of the High Court who allowed the writ petition rendering the State Regulation ineffective, which was confirmed by the Division Bench. The Supreme Court considered the question whether the norms prescribed by the State Government are contradictory to the norms fixed by the AICTE or only in the nature of higher qualifications above the minimum prescribed by the AICTE. While holding that the State Government always prescribe higher qualifications/higher norms than those prescribed by AICTE, the apex Court observed. One other argument is further advanced before us that the criteria fixed by the AICTE was to be adopted by the respective colleges and once such prescription had been made it was not open to the Government to prescribe further standards particularly when they had established the institutions in exercise of their fundamental rights guaranteed under Article 19 of the Constitution. However, we do not think this argument can be sustained in any manner. Prescription of standards in education is always accepted to be an appropriate exercise of power by the bodies recognising the colleges or granting affiliation, like AICTE or the University. If in exercise of such power the prescription had been made, it cannot be said that the whole matter has been foreclosed. In this view of the matter, we think these appeals deserve to be allowed in part and the order of the High Court stands modified to the extent of stating that it is permissible for the State Government to prescribe higher qualifications for purposes of admission to the engineering colleges than what had been prescribed by the AICTE and what has been prescribed by the State and considered by us is not contrary to the same but is only complementary or supplementary to it. (emphasis supplied) Therefore, in the absence of any challenge to the relevant regulations referred to hereinabove, we cannot accept the submission that the Government itself has been lenient in the past in reducing minimum qualifying marks, and therefore, this year also the Government should take a lenient view. We, however, hasten to add that if a situation so arises, it is for the Government to reduce minimum qualifying marks with reference to 50% aggregate or 50% in the group subjects keeping in view the increasing gap between the supply and demand in the technical education sector. We cannot ignore the fact that we have more number of private Engineering Colleges offering enormous vacancies in the Engineering Courses and the demand by students is on the decline. This is one of the factors, which may have to weigh with the policymakers. We need to consider Rule 4(iii) which is to the effect that “the vacant seats if any may be filled with eligible candidates including those securing not less than 50% marks in aggregate or in group subjects in the qualifying examination duly ensuring merit and transparency”. To the same effect is Rule 6(iii)(4) which reads as under. If vacant seats still exist, such seats may be filled on merit basis with eligible candidates including those securing not less than 50% of aggregate marks or 50% in group subjects in the qualifying examination. The admitted fact is that the appellant in W.A.No.276 of 2010 passed B.Com degree course from Navodaya Degree College, Nagarkurnool, under the jurisdiction of Osmania University in 2008. In part II subjects he secured in all eighteen papers 889 out of 1700. However, as per the University Regulation the marks obtained by him in three papers, namely, Indian Heritage and Culture (in the first year), Environmental Studies (in the second year) and Science and Civilization (in the third year) are not to be reckoned for the purpose of awarding division. If the University rule is applied excluding these three subjects he would be getting 738 marks out of 1500 and his percentage is 49.2%. If the total aggregate of 889 out of 1700 is considered his aggregate would be 52%. Relying on Kusum Lata v State of Haryana[3] and U.P.Public Service Commission v Subhash Chandra Dixit[4] the Counsel for the appellant in W.A.No.276 of 2010 submits that the 50% aggregate has to be determined without excluding the three subjects which are excluded by the University for the purpose of awarding division. We find considerable force in the arguments. I n Kusum Lata (supra) the appellant who passed Senior School Certificate examination from the Central Board of Secondary Education (CBSE) sought admission to Diploma in Education (D.Ed) in State of Haryana. Relevant admission rule provided that a candidate should have passed 10+2 examination from Haryana or its equivalent “with at least 50% aggregate marks”. CBSE Regulations required a student to take examination in six subjects including one optional subject and for the purpose of declaring a candidate successful, the aggregate in five subjects alone (excluding optional subject) were considered. When the appellant’s admission for D.Ed was considered she would be falling short of 50% if the marks obtained in all subjects are taken into consideration, whereas she would be getting more than 50% if only marks obtained in five subjects are considered in her CBSE examination. What should be the approach of the Court in such a situation when the rule is silent on such aspects? The Court observed that the interpretation which would be helpful to the students must be adopted. The relevant observations are as follows. …The requirement is that a candidate should obtain 33% marks or Grade D-2 in each of the five subjects of external examination as per the scheme of the studies. When the eligibility clause stipulates that a candidate should have passed 10+2 examination with at least 50% aggregate marks, it is implicit that the aggregate marks are required to be calculated keeping in view only the subjects which are necessary to pass 10+2 examination and not the marks of the additional subject which is not taken into account for passing the examination. This is the only reasonable interpretation having regard to the spirit of the clause providing for eligibility conditions. The relevant factor is to see what is necessary to pass 10+2 examination conducted by CBSE and on that basis decide whether a candidate fulfils or not the requirement of the eligibility clause. If seen from this perspective, the aggregate marks would have to be worked out having regard to the marks obtained in five subjects and not in the additional subject which is not taken into account for passing the examination. (emphasis supplied) In Subhash Chandra Dixit (supra) construing the expression “aggregate marks” in Rule 19 of Part VI of U.P.Nyayik Sewa Niyamavali 1951, Justice K.G.Balakrishnan (as His Lordship then was) held that, the expression “aggregate marks”… can only be construed as a final marks awarded after the scaling system is applied. This ratio covers W.A.No.276 of 2010. We feel countenanced by the submission made by the Counsel for the appellant in the said appeal. We, therefore, hold that the expression “candidates including those securing not less than 50% of aggregate marks” should be construed as the aggregate 50% taking into consideration the marks obtained in all the subjects whether or not all the subjects are considered by the concerned University or brought for the purpose of awarding grade or division or class. Insofar as expression “50% in group subjects” is concerned it does not throw up any difficulty and we leave the matter there. In the result, we dismiss W.A.Nos.255, 336, 422 and 430 of 2010 giving liberty to the appellants to approach the Government through the State Council for necessary relaxation of 50% rule. W.A.No.276 of 2010 filed by Sri C.Maheshwar Reddy, who was admitted to first year MBA course in Sri Sai P.G.College, Nagarkurnool, is allowed and we direct the State Council to consider the case for approval of the admission of the appellant. No costs. ____________ (V.V.S.RAO, J) _______________________ (VILAS V.AFZULPURKAR, J) 25.06.2010 Note: LR copy to be marked. B/o. vs [1] (1996) 9 SCC 309 [2] (2004) 4 SCC 513 [3] (2002) 6 SCC 343 [4] (2003) 12 SCC 701