Baddam Prabhavathi vs Government Of Andhra Pradesh And … on 13 December, 1999

ORDER

1. Baddam Prabhavathi who appeared for Education Common Entrance Examination for the academic year 1999-2000 conducted by the Convenor, EDCET-99, SV University and who secured rank of 1972 filed WP No. 17793 of 1999 seeking issuance of Writ of Mandamus to the 1st respondent i.e., Government of Andhra Pradesh and 2nd respondent Convenor, EDCET-99 to apply the norms and guidelines laid down by the Government of Andhra Pradesh in G.O. Ms. No. 184, Education (EC2) Department dated 20-8-1993 and G.O. Ms. No. 196, Education (EC2) Department, dated 27-8-1993 issued by the Government pursuant to the interim orders of the Supreme Court dated 18-8-1993 in TMA PAI Foundation and others v. State of Karnataka, , in relation to EAMCET examination for making admission into B.Ed Course and pass such other order or orders as the Court may deem fit.

2. G.O. Ms. No.184 dated 20-8-1993 was issued by the Government in exercise of the powers conferred on it by subsection (1) of Section 3 read with Section 15 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act 1983 (hereinafter referred to as “Prohibition of Collection of Capitation Fee Act”). In G.O. Ms. No.184 dated 20-8-1993 the Government issued guidelines for admission into 1st year under graduate professional courses i.e., engineering, agriculture and medical through common entrance test. In Para 3(1)(a) of the said G.O. it is stated that the admissions to these courses shall be made in the order of merit on the basis of the ranking assigned to the students in the Common Entrance Test (EAMCET) conducted for the purpose. Under Para 3(1)(b) the requirement of qualifying at the Common Entrance Test was dispensed with for certain categories reserved in accordance with the rules in force. Under Rule 85% of the seats in each course including the seats which are

exempted from the need of common entrance test were reserved for local candidates and the 15% seats are left over for open competition. As this G.O. do not speak about minority educational institutions, the Government issued an executive order G.O. Ms. No.196 dated 27-8-1993 with regard to admission of students into private minority engineering colleges in the State on the basis of the interim directions of the Supreme Court dated 18-8-1993 in TMA PAI Foundation case (supra). As per this G.O. 50% of the total seats shall be filled up by candidates selected by competent authority following the rules applicable to the private unaided engineering colleges. The admission to the remaining 50% of the intake shall be regulated by the concerned minority management, but the selection shall be made strictly on the basis of merit, either determined on the basis of academic performance at the qualifying examination or on the basis of any objective test that the institution might itself hold or on the basis of performance at the EAMCET. To give statutory effect to this G.O., G.O. Ms. No.1 84 was amended by issuance of G.O. Ms. No.227 dated 22-7-1994, wherein Rule 8(a) relating to minority educational institutions was inserted. Under Rule 8(a)(1), 50% of the total intake in minority professional colleges have to be filled up by candidates selected by the competent authority on the basis of common merit list. The remaining 50% shall be filled up by the management from the candidates belonging to the minority community on the basis of merit either in the intermediate examination or rank in the EAMCET examination or rank in the test to be conducted by the management. Under Rule 8(ii) the management has to distribute 50% of the seats that can be filled up by them equally between free and payment seats. Under sub-clause (iv) the competent authority is empowered to conduct verification keeping in view the objective that the minority professional colleges are equally committed to promote excellence of

the Professional Colleges as a vehicle of general secular education.

3. The grievance of the petitioner in this writ petition is that as per G.O. Ms. No.405 dated 6-11-1995, issued under Section 99 of the Andhra Pradesh Education Act, 1982 (Act No.1 of 1982) hereinafter referred as the Education Act), minority educational institutions were given free hand to make admissions either with the candidates belonging to minority for whose benefit the college was established or non-minority students without reference to the Convenor, Common Entrance Test, either on the basis of marks obtained by the students in the qualifying examination or on the basis of rank assigned to them in the entrance test, as the case may be. Along with the writ petition, the petitioner filed several press clippings wherein irregularities that are being committed by the management of the minority institutions in relation to admission to B.Ed Course were brought to light.

4. During the course of the arguments, it came to light that Act 1 of 1982 aimed at reforming, organising and developing the educational system in A.P. and to provide for matters connected therewith or incidental thereto. Act 5 of 1983 i.e., Prohibition of Capitation Fee Act, was specifically enacted to regulate the admission into educational institutions and prohibiting collection of capitation fee in the State of Andhra Pradesh. It also came to light that the Government issued rules relating to admission of students into BEd course through common entrance test in G.O. Ms. No. 154 dated 27-4-1989, in exercise of the powers vested in it under Section 3 of the said Act (hereinafter referred as the Admission Rules) and issued G.O. Ms. No.526, Education dated 21-12-1998 (for short Minority Institutions Rules) prescribing rules relating to establishment, recognisition and regularisation of minority educational institutions under private management in exercise of powers conferred

by Section 99 of the A.P. Education Act. During the course of the arguments the question that arose was whether the G.O. Ms. No.405 dated 6-11-1995 issued by the Government under Section 99 of the Education Act permitting the minority educational institutions to make admissions on their own without reference to the Convenor of the common entrance test is valid in law as O.O. Ms. No.154 issued under a special enactment for regularisation of admission and prohibition of collection of capitation fee is in force. Hence, I permitted the Counsel for the petitioner seeking amendment of the prayer questioning the validity of the G.O. Ms, No.405 dated 6-11-1995. Accordingly, the petitioner filed WP MP No.32840 of 1999 for amendment of the prayer seeking declaration that clause 2 (b to d) of G.O. Ms. No.405 is unconstitutional, illegal and violative of A.P. Education Act, 1983 and the Capitation Fee Prohibition Act and the Rules made thereunder.

5. After the above writ petition was admitted, several Christian minority institutions filed Writ Petitions Nos.20814 of 1999, 21458 of 1999, 23002 of 1999, 24407 of 1999 and 25222 of 1999 questioning Memo No.23940/Irg.-1/99-3 dated 1-9-1999, wherein instructions were given to the Regional Joint Directors to participate as a nominee of the Government in the Admissions Committee in minority colleges of education under their administrative control to oversee the process of the admissions so as to avoid irregular admissions in those colleges, while bringing to their notice that already notices were issued to the managements of the minority colleges not to commence admission into BEd course during the academic year 1999-2000 unless and until the Government communicated the list of number of colleges of education.

6. At the outset, it is to be noticed that while Article 14 of the Constitution of

India ensured to all its citizens equality before law and equal protection of the laws within the territory of India and under Article 29(2) no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of the State funds on the ground of only religion, race, caste, language or any of them. But, under Article 29(1), minority citizens residing in the territory of India or any part of thereof having of distinct language, script, culture of its own are assured of their right to conserve the same. Under Article 30, minorities whether based on religion or language, were given the right to establish and administer educational institutions of their choice. While answering Presidential Reference In re The Kerala Educational Bill, 1957, AIR 1958 SC 956, a Constitution Bench of the Supreme Court while interpreting the language of Article 30 ruled, “that there is no limitation placed on the subjects to be taught in such educational institutions. As minorities will also ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, establishment of educational institutions of their choice will necessarily include institutions imparting general secular education. In other words, the article leaves it to their choice to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough, good general education to their children.” Their Lordships further interpreted the words “of their own choice”. It is said that the dominant word is “choice” and the content of that article is as wide as the choice of the particular minority community may make it.”

7. At the same time, Their Lordships of the Supreme Court held that “the right to administer cannot obviously include the right

to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars.” Accordingly, Their Lordships observed that the State is well in its competence to lay down conditions for recognition, namely that an institution must have funds or property or number of students or standard of education and so forth, and it is open to the State to make rules prescribing conditions for such recognition or aid provided. Their Lordships further observed that recognition and grant of aid is the Governmental function and as such if the minority community desires to have Slate recognition, they must stick to the terms imposed by the Government as condition precedent to get recognition of every educational institution. But, at the same time the conditions to be imposed for grant of recognition or aid should not be violative of Article 30. Subsequently, a Nine Judge Bench of the Supreme Court in Ahmedabad St. Xavier’s College Society v. State of Gujarat, , reiterated the above principle in separate but concurrent judgments by giving their own reasons in support of this. At this stage, it should be noted that A.P. State Legislature passed A.P. Private Educational Institutions Grant-In-Aid Regulation Act, 1988 (Act 22 of 1988) to regulate the payment of grant-in-aid to private Educational Institutions in the State under Section 3(1)(b). Private educational institutions established after 1st September 1985 and private colleges established after 1st March, 1985 were disentitled to receive any grant-in-aid. A cursory look at the events that have taken place in the State of Andhra Pradesh, after passing of this Legislation, will reveal that the Government of A.P. entrusted imparting of education to private institutions and washed off its hands.

In other words, it has abdicated its primary function of getting the citizens educated for establishment of a well-informed society and left the student community to the mercy of private managements. A further look at the way the colleges came into existence in private sector reveal that every alternate institution that was established after 1985 for imparting any type of education is a minority institution. The way in which the minority certificates are being given by the Government, the way in which these minority institutions are permitted to make admissions, the way in which these institutions were allowed to charge fees without any restrictions have become matters of public concern in the State and day by day the unrest among the student community over the way the admissions are taking place in these minority institutions as reported in the press is really alarming.

8. I have gone through the two judgments of the Supreme Court referred above and the reasons given in support of the view taken by the Supreme Court, needs a relook as much water has flown in these 25 years and if a white paper is called for on the functioning and administration of these minority institutions, it will prove beyond doubt that the laudable ideals expressed in these judgments turned out to be a myth. In fact in TMA PAI Foundation case (supra), Their Lordships of the Supreme Court referred some of the issues including the one whether the decision of the Supreme Court in St. Stephen’s College v. University of Delhi, 1952 (1) SCC 558, is correct in saying that Article 30 clothes minority educational institutions with the power to admit students by adopting its own method of selection and that the State or the affiliating university has no power to regulate admissions of students to such Minority Educational Institutions even while permitting the Minority Educational Institution to admit students relating to the relevant minority to the extent of its 50% in

take capacity. Thereafter, a Seven Judge Bench constituted to decide the reference, refrained the questions that arose before it on 18-3-1994, and thereafter the hearing could not be completed and the matter remained as part-heard.

9. I have gone through the questions framed by the Larger Bench and the Hon’ble Supreme Court did not frame an issue for consideration whether the opinion rendered by the Supreme Court In re Kerala Education Bill (supra) and The Ahmedabod St. Xaviers College Society, (supra), stilt holds good in the present day circumstances, where most of the managements of minority educational institutions converted education into a trade, more so in the absence of any discussion in the Constituent Assembly debates or the preliminary report to that effect and whether the minorities can be allowed to convert education into a trade in education under the protective umbrella of Article 30 of the Constitution of India. Further the Supreme Court ruled in Unnikrishan J.P. v. State of A.P., , that imparting education is the primary duty of the State and the private educational institutions merely supplement the principal activity of the State in educating the people. In other words, theirs is not an independent activity, but one closely allied to and supplemental to the activity of the State and they are discharging a public duty whereby it means that no citizen can be denied admission in any educational institution either maintained by the State or any other agency endowed with the discharge of a public duty on ground of only religion, race, caste language or any of them.

10. In the light of the above view taken by the Supreme Court and as the Supreme Court is going reconsider some of the aspects of the matter, I treated these writ petitions as Public Interest Litigation, in view of the importance of the question that cropped up for consideration before this Court so that the views expressed by this Court can also

be taken into consideration by the Supreme Court in arriving at a just decision in furtherance of common good and framed the following issues for consideration apart from the questions framed by the Supreme Court and appointed senior Counsel Sri S. Satyanarayana Prasad as amicus curaie to assist the Court for arriving at a just decision.

(1) Whether it is necessary to permit the persons belonging to minorities to establish and administer educational institutions for imparting general secular education as Article 30 is mainly intended to preserve/conserve their language, script or culture.

(2) Even if so whether few individuals either belonging to a family or group of families belonging to a particular minority community, having formed into an association can claim minority status for establishment of an educational institution, even though, such an association is in no way serving the cause of the minority community to which they belong cither in protecting or propagating their religion or language in letter and spirit.

(3) If the answer to issue No.2 is in affirmative, the next question that falls for consideration would be whether all the seats could be filled up with the students belonging to that particular minority community or whether any provision has to be made for admission of non-minority students.

(4) Whether it is open to these minorities to make admissions on their own or the Government is competent to frame rules regulating the admissions into these minority institutions, specifically, where a common entrance test is prescribed to maintain excellence in standards of education.

(5) Whether the students who got converted into a minority community at or before the time of admission can be treated as minority students of that community to claim protection of Article 30 of the Constitution.

(6) Whether different procedures prescribed for admitting students by minority institutions and non-minority institutions is permissible in law.

(7) Whether the action of the Government in prescribing different procedures for admission of students by minority institutions in professional courses viz., Engineering, Medical, Agriculture and other courses like BEd, MBA can be sustained in law.

(8) Whether the minority educational institution can claim that they will be sub-serving the interest of that minority community by selecting the candidates of their choice.

11. For rendering judgment, after going through the various judgments of the Supreme Court rendered from time to time, considerable time is needed and as the academic year for 1999-2000 for BEd course commenced in September, 1999 and as the admissions to the colleges that came into existence during this year have yet to take place, I am inclined to pass this interim order.

12. For the present, I am treating all those institutions which obtained minority certificates from the Government as minority institutions” and decide whether the Government is well within its limits in permitting the management of the minority educational institutions to admit the students either belonging to the minority to which the management of the institution belong or non-minority students by inviting applications from the students who appeared for EdCET examination without reference to the Convenor of common entrance test

ignoring the claims of the more meritorious students under both the categories on the ground that they do not choose to apply to these institutions pursuant to the notifications given by them and whether these institutions have at least adhered to the principle of merit while admitting students from among the applicants. To find out to what extent these institutions admitted the students on the basis of merit from among the applicants at least, 1 appointed duty Counsel to verify the records of these educational institutions and submit their reports on the points raised by the Court in its order dated 9-12-1999. While the respondent colleges in Writ Petition No.17793 of 199 submitted their records for scrutiny of the Court, the Christian colleges, which filed the writ petitions questioning the memo of the Government, dated 1-9-1999 refused to produce the records for scrutiny of the Court. These institutions filed appeal against the order dated 9-12-1999 by contending that the same was passed without affording an opportunity to them. By order dated 20-12-1999 in WA SR No.37229 of 1999 the Division Bench having set aside the order on that ground, observed that the learned Judge will be at liberty to pass orders after hearing the Counsel for the parties. Though hearing was going on before this Court, the Counsel evaded to appear in the Court for two days. There after having appeared in the Court, first contended that his clients directed him not to argue the matter. When 1 directed him to file an affidavit to that effect, the next day he appeared in the Court and addressed the arguments, but did not produce the records, though I have given time to produce them.

13. The very fact that these institutions refused to produce the records before the Court show that only students belonging to Christian minority were not admitted in their colleges, more so on the basis of merit from among the applicants. The above conduct of these institutions coupled with the reports

submitted by the duty Counsel with regard to the other minority institutions establishes beyond doubt that these institutions are indulging in making admissions by adopting a make believe process at their own whims and fancies in the absence of any control or supervision by the Governmental authorities.

14. Before adverting to the merits of this case, 1 would like to dispose of the two preliminary objections raised by the Counsel appearing for the minority educational institutions. It is strenuously contended that even in a Public Interest Litigation, the Court has to look into the grievance either at the behest of an aggrieved person or at least for the cause of an aggrieved person. As no student belonging to any minority or non-minority, approached this Court complaining against the minority institutions in making admissions, the Court should not treat the issue raised in these writ petitions as Public Interest Litigation.

15. This objection of the learned Counsel was answered by Their Lordships in Malik Brothers v. Narendra Dadhich and others, . While dealing with an appeal filed against the judgment of a Division Bench of the Madhya Pradesh High Court, Indore wherein the auction conducted by the Indore Development Authority and the award of the competent arbitrator were set-aside on a petition filed by a tax payer of the Indore Municipality as Public Interest Litigation under Article 226 of the Constitution of India, observed as herein:

“Before embarking upon an enquiry into the legality of the impugned judgment of the High Court, it is necessary to bear in mind that a public interest litigation is usually entertained by a Court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such

application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights. The directions and commands issued by the Courts of law in a public interest litigation are for the betterment of the society at large and not for benefiting any individual.”

16. In the instant case, at least one aggrieved student came to this Court and she filed various press reports high lighting the illegalities or irregularities that are being committed by the minority institutions in making admissions into BEd, courses. In fact from the reports of the duty Counsel, this Court noticed that many a student who responded to the notification issued by these institutions and secured higher ranks, did not get admission in these colleges leave apart the more meritorious students both from among minority as well as non-minority students who secured higher ranks in the entrance tests conducted by the Convenor and who are awaiting admission. This Court cannot expect all the students to come and approach this Court for redressal of their grievances and when it is brought to the notice of this Court that some public injury is being caused because of the particular procedure adopted by the minority institutions and thereby, the more meritorious students are denied admissions into B.Ed courses, which ultimately affects the excellence in the standard of education this Court cannot refuse to look into the complaint. Hence the very fact that the affected students did not approach this Court for redressal will not deter this Court from entertaining these writ petitions as Public Interest Litigation. Accordingly, the objection raised by the Counsel for the Institutions is rejected.

17. The 2nd objection raised by the learned Counsel for the Institutions is that this Court cannot enlarge the scope of inquiry by directing the Institutions to produce the

records relating to admissions into B.Ed courses for scrutiny, though no such prayer was made by the petitioner by order dated 7-10-1999.

18. The Counsel mainly placing
reliance on Section 4 of the Prohibition of Collection of Capitation Fee Act made this submission. Mr, Satyanarayana Prasad appearing as amicus curie repelled this Contention effectively by drawing my attention to the statement of objectives and reasons underlying Act 5 of 1983, the provisions of the said Act and the Education Act. From the objectives and reasons it is seen that as the existing provisions contained in the A.P. Education Act are found to be inadequate, the Prohibition of Collection of Capitation Fee Act was enacted to effectively control the evil practice of collecting fee at the time of admissions into educational institutions in the State that was rampant at that point of time; which is resulting in frustration among the intelligent and meritorious students apart from steep fall of standards in education and to maintain the excellence in standards of education and by regulating the admissions into educational institutions on the basis of merit and to regulate the fee that may be collected by the educational institutions. From this it is seen, the primary object of the Government in bringing this Legislation is to curb the collection of capitation fee and to regulate the admissions into educational institutions on the basis of merit and to maintain excellent standards in education without exception whatsoever is, in case of any institutions or class of institutions run by the private management including the minorities. The definition of minority educational institutions was not given in this Act and as such we have to fall back on the definition given in the Education Act. As per Section 2(29) of the Education Act, minority educational institution means a private educational institution of its choice established and administered by a minority whether based on religion or language

having the right to do so under clause (1) of Article 30 of the Constitution of India. In oilier words Article 30 of the Constitution of India conferred a right on the minority educational institutions, which were, established for protecting/conserving their religion or language but not all minority institutions as such. Hence a burden lies on the institutions, which claim the protection under Article 30 of the Constitution of India to prove with necessary material that the institution is entitled to claim constitutional protection under Article 30 of the Constitution of India. Hence mere obtaining a certificate from the competent authority that a particular institution is a minority institution is not the end of it and the Court can always look into the question, whether the institutions are entitled to claim the constitutional protection or not. In the ordinary course, the institutions themselves arc expected to come before this Court with necessary material to prove that the institution is intended to sub-serve the interests of the concerned minority even without asking for it and the manner in which they are making admissions i.e., the procedure followed by them while making admissions is in furtherance of the cause of their community. When they failed to substantiate” their claim, this Court gave an opportunity to them to place the records to substantiate their claim. If any institution refuses to produce the records, the institution need not be treated as a minority educational institution on the basis of a minority certificate obtained by it from the competent authority in the light of the language employed in Section 2(29) of the Education Act. In fact the direction of this Court is in furtherance of their own interest.

19. In support of this plea, he placed reliance on the judgment of the Supreme Court in A.P. Christian Medical Education Society v. Government of Andhra Pradesh, , wherein His Lordship Justice Chitmappa Reddy, as he then was, speaking for the Bench while repelling the

contention that even a single individual belonging to a minority could establish a minority institution and had the right to do under the Constitution and neither the Government nor the University could deny the Society’s right to establish a minority institution, at the very threshold as it would, howsoever, they may impose regulating measures in the interests of uniformity, efficiency and excellence of education, in the following words:

“The fallacy of the argument in so far as the instant case is concerned lies in thinking that neither the Government nor the University has the right to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well founded or ill founded. The Government, the University and ultimately the Court have the undoubted right to pierce the ‘minority veil’ with due apologies to the Corporate Lawyers and discover whether there is lurking behind it no minority at all and in any case, no minority institution. The object of Article 30(1) is not to allow bogies to be raised by pretenders but to give the minorities a sense of security and a feeling of confidence…..

….. What is important and imperative
is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities.”

20. From the above, it is seen that the Court is always having the undoubted right to pierce the minority veil. Hence as rightly pointed out by the amicus curie that while a duty is cast on these Institutions to establish with material evidence that the institution is sub-serving the interests of the concerned minorities, and the procedure followed by them in making admissions does not result in fall of efficiency and excellence of the standard of education and when those

Institutions failed in their duty, this Court gave an opportunity to them to establish this twin objectives i.e., sub-serving the interests of the concerned minorities and excellence in standard of education is being maintained while making admissions. Pursuant to the directions, while the Muslim minorities placed the records before the Court, they failed to establish, how these institutions are sub-serving the interests of that minority community. The Christian minority neither placed any records before this Court nor complied with the directions of this Court by producing the records to establish these facts, except St. Ann’s College for Women, Hyderabad and Siddartha College, Kavali. From the records of these Christian Minority Institutions, it came to light that number of students belonging to non-minorities were given admission on the basis of Baptism certificates obtained by them either at the time of admission or some time past while their certificates show that they studied as non-minority students till they passed the qualifying examination. From this, it is evident that these Institutions are not serving the interests of the community to which they belong. Had the Court did not undertake this process; the mischief that is being played by the Institutions would not have come to light. Accordingly this contention is also rejected.

21. Now coming to the merits of the case the Government issued statutory rules relating for establishment, recognition and regularisation of minority educational
institutions under the private managements in exercise of the powers conferred by Section 99 of Education Act in G.O. Ms. No.526, Education (Rules) dated 21-12-1998. Rule 2 deals with definitions.

22. Rule 2(1)(b): Competent authority means that authority means the authority empowered to prescribe rules and regulations on all matters pertaining to education etc., as the case may, for all educational institutions including minority institutions.

23. Rule 2(1)(1) Recognition authority means statutory authority empowered to accord recognition to the educational institutions as minority educational institutions basing on the guidelines issued by the Government from time to time and issue a certificate to that effect.

24. Rule 3(1): The Government by notification prescribe a statutory authority to accord recognition to the institutions as minority educational institutions. Under Rule 3(2), Director concerned was nominated as recognition authority pending issue of notification prescribing the statutory authority.

25. Under Rule 4(3): The Managing committee of the educational agency and the other official members should be wholly/ substantially named by representatives of the minority community (religious or linguistic) to which they claim to belong. Sub-rule (4) of Rule 4 specifies that the aims and objects of the educational agency incorporated in its Bye-laws should clearly specify that it is meant to primarily serve the interests of the minority community (religious or linguistic) to which they claim to belong. Sub-rule (5) states that a minority community can establish an educational institution in accordance with the provisions of the Education Act and the Rules made thereunder, unless of course the institution is meant exclusively for imparting instruction in religious tenets or teachings of the language of the minority concerned. Sub-rule (6) states that the educational institutions established and managed by the minorities (religious or linguistic) shall serve the educational needs of their community to which they claim to belong by making substantially high percentage of admissions with the candidates belonging to the concerned community. The procedure for granting recognition to educational institutions as minority educational institutions is dealt within the rules itself and it is suffice to state for purpose of this

writ petition that the certificate issued by the recognition authority is valid for a period of five academic years and shall be renewed prior to its expiry by making application before 3 months in advance. Under Rule 7 minority communities are entitled to establish an educational institution only in accordance with the provisions of the Act and the Rules made thereunder, with the prior permission of the competent authority. As per Rule 7(5Xa) any educational institution which has been permitted to be established with the status of minority educational institution shall be deemed to have been accorded minority stains for one academic year only for the purpose of making admission of students and appointment of staff, and is subject to obtaining a certificate of recognition as minority institution from the Competent Authority before the beginning of the next academic year. Rule 7(6) states that mere obtaining of permission for the establishment of a minority educational institution by the Permission Authority will not entitle the educational institution for recognition as minority educational institution unless the institution has been issued a certificate to that effect by the competent authority. Rule 7(8) states that all the rules prescribed for the establishment, registration, recognition, administration and control of other private educational institutions shall also be applicable to the corresponding categories of minority educational institutions so far as they are not repugnant to relevant provisions of the Constitution of India. Under Rule 7(9) Government/Head of the Department/University/State Councils concerned are empowered to issue instructions or prescribe rules and regulations as deemed necessary for various categories of educational institutions separately and shall be applicable to all the educational institutions including those administered by the Minority Communities, unless otherwise repugnant to the provisions of the Constitution of India. Rule 11 deals with general instructions.

26. It is useful to extract sub-rules (1), (2), (3), (11), (13), (14), (15), (16), (17), (18), (19), (20), (21) and (22) of Rule 7 which throw much light on the norms to be followed by the minorities while making admission of students in their institutions:

(1) No educational institution shall be entitled for the privileges, which are allowed for the recognised minority educational institutions unless it is recognised as minority educational institution and is issued a certificate of recognition to that effect, by the Recognition Authority.

(2) The minority educational institution must serve and benefit the minority community to which it claims to belong, in some manner either by promoting the language (in the case of linguistic minorities) or by teaching and promoting the religion and culture of the minority (in the case of religious minorities) or by serving the economic and educational needs of the community in some positive manner.

(3) The mere fact that an educational institution is established and/or administered by a person, group of persons or by a society/trust/ association/church/mission/wakf board, etc., composed of the minority, is not sufficient requirement to recognise the institution as minority educational institution unless it satisfies the requirement that it is serving to the benefit of the minority community in some definite way to conserve its definite language, script or culture of its own.

(11) In the matter of affiliation and aid, a minority educational institution stands on the same par as any other educational institution. It cannot claim any special right or privilege; it shall have to abide by the conditions of

affiliation, or conditions of grant, as the case may be, so long as such conditions do not impair the right to administer the institution.

(13) Educational institutions established and managed by the minority communities shall serve the general interests of the minorities (religious or linguistic) to which they claim to belong. Accordingly, the educational agency shall follow the following norms while making admission of students into their institution.

(a) No minority candidate who satisfies the rules of admission be denied admission unless otherwise ineligible for admission. In case of rejection or denial of admission, the reasons for the same shall be recorded.

(b) An admission register shall be maintained indicating the particulars of students who seek admission. The information shall include particulars about the students who have been admitted as well as those who have been denied admission.

(c) While admitting students of the concerned community, merit among the students of the concerned community should be the only criteria for selection of the candidates.

(d) Only after exhausting all candidates belonging to the concerned community, candidates belonging to other than the concerned community shall be admitted as per merit. While admitting these students, however, rule of reservation shall be followed. Candidates of minority communities other than those belonging to the concerned

minority community shall be treated as of belonging to non-minority community for all purposes.

(e) Where common entrance examination has been prescribed for admission into various educational institutions, the minority educational institutions-

(i) shall admit students belonging to the concerned community from among the merit list of students prepared by the competent authority conducting the Common Entrance Examination, on the basis of the ranking assigned in the Entrance Examination;

(ii)may admit students belonging to other than the concerned community on the basis of the ranking assigned in the common entrance examination, as allotted by the competent authority, in cases there are no eligible candidates belonging to the concerned community for making admission. In such a case the rule of reservation as prescribed by the Government from time to time shall be followed.

(14) The educational agency shall adopt the syllabus, curriculum, standards of education, courses of study and other measures aimed at maintenance of educational standards and excellence of education, as prescribed by the competent authorities from time to time, to other corresponding educational institutions.

(15) In the matters of affiliation and recognition by the universities/boards or other authorities, the minority educational institutions stand on par with the other non-minority educational institutions.

(16) The minority educational institutions receiving grant-in-aid or any other kind of financial aid from State Funds will be subjected to stricter regulatory measures compared to those not receiving the said aid from the Government.

(17) The fee structure prescribed by the Government for all educational institutions is also applicable to minority educational institutions. However, with the prior approval of the competent authority, the unaided minority educational institutions may collect higher fee from students, if they cannot maintain the institution with the fee prescribed by the Government.

(18) Government or any other authority on their behalf are competent to make inspection and/or cause enquiry so as to ensure that the institutions are not indulging in any mismanagement and to see that the academic standards and excellence of education are maintained.

(19) Every educational agency shall follow the instructions issued by the competent authority from time to time, which are meant to strengthen and streamline the educational standards and discipline.

(20) The educational agency shall cooperate with the inspecting authorities in all respects and shall make available all such records and documents which they may require to verify in the process of their inspection.

(21) Under no circumstances a non-minority institution shall be allowed to be converted into a minority educational institution.

(22) All minorities, whether based on religion or language, shall have the

right to establish and administer educational institutions of their choice under Article 30(1).

27. From the above rules it is seen that the educational institutions established and managed by the minority communities have to not only satisfy that those institutions are established for the benefit of that minority community in some definite way to conserve its definite, language, script, culture of its own or serving the economic and educational needs of that community in some positive manner, but also shall follow rules relating admission of students on par with non-minority institutions for maintaining uniformity and excellence in the standard of education and when a common entrance examination is prescribed for admission into various educational institutions while the minority educational institution is given the liberty to admit the students belonging to that community on the basis of the rank assigned in the entrance examination from among the merit list of the students prepared by the competent authority left over seats can be filled with non-minority students on the basis of the rank assigned to them in the examination by following rule of reservation allotted by the competent authority. These institutions shall also follow the instructions issued by the competent authority from time to time, which are meant to strengthen and streamline the educational standards and discipline.

28. As far as admissions to BEd courses are concerned the Government issued statutory rules in exercise of the powers conferred by Section 3(1) and Section 15 of the Prohibition of Collection of Capitation Fee Act in G.O. Ms. No.154, Education (Rules) dated 27-4-1989.

29. Rule 2 Deals with the Definitions: Rule 2(e) “Convenor” means the authority/ officer appointed by the State Council for conducting the Common Entrance Test and performing such other functions relating to

the said examinations as may be entrusted to him by the State Council in consultation with the Chairman.

30. Rule 2(k) “Qualified candidate” means the candidate who has appeared for the Common Entrance Test and has been assigned ranking in the Common Merit List.

31. Rule 2(2) words and expressions used but not defined in these rules shall have the same meaning as assigned to them in the Andhra Pradesh Educational Institutions Regulation of admission and Prohibition, of Capitation Fee Act, 1983 (ActNo.Sof 1983)

32. Rule 3 deals with Method of Admission. Under Rule 3(2)(b) the principals of the Institutions administered by the minority communities shall admit candidates belonging to their own community in the order of merit ranking assigned to them in the Common Entrance Test by following the procedure laid down under these rules.

33. Rule 5 deals with the conduct of entrance test by the Convenor. Under Rule 6 the Convenor has to prepare (a) Statewide Common Merit List basing on the basis of merit without reference to any category, (b) Local area wise merit lists, (c) Concerned minority community merit lists, (d) Merit list for Scheduled Castes and Scheduled Tribes and Backward Class Communities both State wide as well as local area wise, (e) Merit lists for other categories of reservations mentioned in Rule 10(4), both State wide as well as local area wise.

34. Ride 8 deals with admissions into private institutions: Under Rule 8(1) The Convenor of the Common Entrance Test shall make advertisements in the popular daily newspapers calling for applications in the prescribed form from the qualified candidates who have been assigned ranking

in the Common Entrance Test and desirous of seeking admission into the private institutions, including minority educational institutions, offering B.Ed course.

35. Under Rule 8(1)(b) the
advertisement shall also make it amply clear that the candidates belonging to the concerned community alone will be admitted into the minority educational institutions basing on the ranking assigned to them in the Common Entrance Test and that the candidates belonging to the other communities will be admitted only against the left over seats, in the order of ranking assigned to them in the Common Entrance Test by following rule of reservation.

36. Under Rule 8(2) the candidates who are qualified to seek admission into private institutions including minority educational institutions shall make application to the Convenor either in person or by “Registered Post Acknowledgment Due” enclosing all the relevant documents including a copy of the Rank Card issued to him and the applications shall be acknowledged by the Convenor.

37. Under Rule 8(3) the Convenor shall, after scrutiny of the applications shall prepare two categories of merit list; (a) Common Merit List containing the names of all the candidates including minority community, arranged in the order of merit ranking (b) to prepare separate merit list on the basis of ranking obtained by the students for each of the concerned minority community, the candidates belonging to minority community other than the concerned minority community shall be treated as non-minority communities for the purpose of admission into minority institutions.

38. Under Rule 8(4), the seats in all private colleges including minority institutions shall pooled up methodology-wise and distributed among three regions in the State in the ratio of 42: 36: 22 from

among Andhra, Telangana and Rayalaseema regions respectively and the candidates shall be allotted by following the procedure prescribed in Rule 10(l)(c).

39. Rule 9 deals with allotment of candidates for admissions. As per Rule 9(2) the Convenor of the Entrance Test Committee shall be the competent authority to select and allot candidates for admissions into various Institutions on the basis of merit subject to final approval of the Chairman.

40. Under Rule 9(3)(a) candidates belonging to the concerned minority shall be admitted in the minority institutions by following the provisions under sub-rule (4) of Rule 8.

(b) If candidate belonging to the concerned community from a local area fall short for making admissions in the prescribed ratio, candidates belonging to the concerned community belonging to other local areas can be admitted in the order of merit in the concerned State-wise merit list.

(c)If there are no candidates belonging to the concerned community, in any local area, candidates belonging to other Communities form the respective local areas in order of merit, can be admitted following rule of reservation.

41. Rule 9(4) makes it further clear that the selection and allotment of candidates to private institutions including the minority educational institutions shall be solely on the basis of merit as adjudged by the rank obtained in the entrance test.

42. Rule 9(5) deals with the number of branches/methodologies and the total number of candidates to be admitted, shall be as decided by the Government, from time to time.

43. Rule 10 speaks of rule of reservation for admission. Under Rule 10(1)

while 85% of the seats in each methodology excluding the scats that are exempted from the need of common entrance test are reserved for local candidates, 15% of these seats shall be left un-reserved as specified in A.P. Educational Institutions (Regulations and Admission) Order, 1974 and the amendments made thereon.

44. Under Rule 10(1)(c)(i) if seats meant for any local area are left over they may be filled up with the other candidates in the order of merit from the State wide merit list.

45. Under Rule 10(1)(c)(ii) in respect of minority institutions, methodology-wise seats in each institution shall be filed up with the candidates belonging to the concerned minority community among the three local areas of the State in the ratio referred under Rule 10(1)(c)(i) i.e., 85 per cent seats with local candidates and the remaining 15% seats shall be left unreserved. If seats meant for any local area are left over they may be filled up with the candidates belonging to the concerned minority community from other local areas in order of merit. If seats are still left unfilled, they may be filled up with candidates belonging to the other communities from the respective local area in order of merit following the rule of reservation.

46. Rule (11)(2)(c) specifies the
functions of the Convenor of the Entrance Test including from among other things, publication of results and dispatch of Rank Cards to the qualified candidates and selecting candidates for admission into various institutions.

47. From these above rules, it is seen that minority institutions are also treated on par with non-minority institutions in making admissions on the basis of merit, observance of 6 point formula white making admissions. If any seats are left over in a particular local

area, they can be filled up with the candidates belonging to that minority community from other regions on the basis of the ranking in the said merit list. Still if any seats arc left unfilled in any local area, candidates belonging to the other communities from the respective local area can be admitted in the order of merit following the rule of reservation. The most important function of the convenor is that all the seats in the private colleges including minority institution have to be pooled up methodology wise and should distributed in the ratio of 42: 36: 22 respectively for all the three regions and allot the candidates following the procedure prescribed therein.

48. A cursory look at these rules will make it abundantly clear that the rule making authority has to take necessary care to see that the admissions into various private institutions including the minority institutions takes place on the basis of the rank assigned to them in the common entrance test to maintain excellence in the standard of education and to see that the claims of the meritorious, students either belonging to minority or non-minority communities are not defeated by the educational institutions by following dubious methods. The draftsman has taken utmost care in drafting these rules protecting the interests of the educational institutions as well as the students and it can be said that these rules area well-drafted piece of subordinate Legislation. Though, these rules are on the statute book for over a decade, no minority institution questioned the validity of these rules as the Hon’ble Supreme Court repeatedly held that grant of permission and recognition is a Governmental function and the Government is well in its competence to Jay down conditions for recognition and the exception being that they should not be violative of Article 30 of the Constitution of India.

49. Subsequently Government issued notification in G.O. Ms, No.12, dated 11-1-1989 stating that the Cabinet Sub-

Committee on minorities is constituted as the recognition authority under Rule 3(1) of the Minority Educational Institutions Rules to accord permission to the educational institutions as Minority Educational Institutions (both religious and linguistic) and to issue a certificate of recognition to that effect. Some time thereafter, the Government issued executive instructions in G.O. Rt. No.1596 dated 8-10-1990 on the basis of representations made by certain minority institutions to liberalise rules relating to establishment, recognition and regulation of minority educational institutions. The file relating to the issuance of the G.O. was not produced by the Government to see what type of relaxation these institutions wanted and the reasons for asking relaxation and to know the difficulties faced by them in complying with the rules issued in G.O. Ms. Nos.526 and 154. In this G.O,, in Para 2(a) the Government issued orders stating that minority institutions would be free to invite applications from both minority and non-minority students without reference to the Convenor, Common Entrance Test by observing that the candidates shall be admitted strictly on the basis of marks obtained by them in the qualifying examination or on the basis of ranking assigned in the entrance test as the case may be. In Para 2(b) these institutions were given permission to admit the students, if any, not belonging to the concerned minority following the rule of reservation. Under Para 2(g) concerned directors were nominated as competent authority to issue minority certificates for recognition of any educational institution under its administrative control subject to fulfilment of the guidelines issued in G.O. Ms. No.526. Para 2(h) states that minority certificates shall be issued for each institution, but not to a sponsoring society as a whole as character of each institution may be different. Para 3 says the relevant rules in the various Government orders will suitably amended accordingly. The G.O. was amended further in G.O. Rt. No.1610 dated 11-10-1990

substituting Para 2(b) and adding a new Para 2(c), As per the substituted clause minority educational institutions were given free hand to admit candidates not belonging to the concerned minority by following rule of reservation. The new Para 2(c) states that the Convenor shall forward the applications to the principals of the minority institutions concerned for various courses during 1990-91. The resultant effect of G.O. Rt. Nb.1596 and G.O. Rt. No.1610 is that the minority institutions were given free hand to make admission into various Courses both from minority and non-minority students without reference to the Convenor of the Common Entrance Test, while G.O. Ms. Nos.526 and 154 made it obligatory on the part of minority institutions to admit candidates belonging to that particular community which they claim may belong in the first instance and only left over seats can be filled up by non-minority students. Nextly, these institutions were given liberty to admit non-minority students ignoring the claims of the minority students. It is not known how the Government can permit these institutions to admit students on the basis of marks obtained by them in the qualifying examination having prescribed a common entrance test for these admissions. At the same time, no mention was made in these two orders whether the minority institutions have to make admissions by following 6 point formula and women reservation as contemplated in Rule 10 of admission rules. Subsequently, in the year 1995 Government issued Rules in G.O. Ms. No,405 in exercise of powers conferred by Section 99 of the Education Act in supersession of the Rules issued in G.O. Ms. No.12, Education, and instructions issued in G.O. Rt. No. 1596 and G.O. Rt. No.1610 insofar as they relate to the prescribing of competent authority for recognition of colleges of education and colleges of physical education as minority educational institutions and to issue minority certificate as per the new rules. These rules were given retrospective effect from 11-1-1989. A look at these

Rules gives me an impression that these Rules were issued to give statutory effect to the orders issued in G.O, Rt. Nos.1596 and 1610 and to avoid repetition I am not adverting to the clauses of the G.O. in detail except stating that while preamble of the rules states that the above GOs. were superseded insofar as they relate to prescribing of competent authority for recognition, the Rules apart from nominating the competent authority, dealt with the admissions also, I have perused the file relating to the issuance of this G.O. to find out the reasons for change of procedure for admission of students by the minority institutions. The file does not throw any light on the reasons and circumstances that compelled the Government for issuance of this G.O.

50. Very recently the Government issued another G.O. Ms. No.23, Minorities Welfare (M & R) Department dated 10-3-1999 changing the definition of the religious minority educational institutions on the basis of representations made by the minority educational institutions. Para 1 of this G.O. states that a religious Minorities Educational Institution mean an institution which is run by an agency of which at least 2/3rd members belonging to the religious minority. Proviso to this Para 1 states that at least 50% of the students should belong to the concerned minority community unless the number of applications for admissions belonging to that particular community is less than 50%. In case, if the applications of the minorities are less than 50%, no applicant belonging to that minority community shall be denied admission and application forms shall not be refused to any candidate. In Para 2(i) it is stated that the Principal Secretary/Secretary to Government, in Minorities Welfare Department or his nominee shall grant Minority Status Certificate to the Minority Educational Institutions, provided that; (a) the educational institution falls within the scope of the aforesaid definition and no candidate is

admitted on the basis of bogus minority certificate. As the other provisions of this G.O. are not germane to this issue under consideration, I am not referring to them in this order.

51. From the above narration of facts, it is seen that the Government went on changing the rules with regard to grant of recognition of minority educational institutions and admissions to these educational institutions for no reason whatsoever having categorically stated in the objects and reasons that Prohibition of Collections of Capitation Fee Act is being enacted to curb the evil practice of collecting capitation fee at the threshold of admission into various courses which has resulted in the steep fall in the standards of education and to regulate admissions into educational institutions on the basis of merit. The Government did not bring to the notice of this Court the compelling reasons for issuance of these orders indiscriminately giving a go-bye to the very objectives underlying Prohibition of Collection of Capitation Fee Act, more so, when the statutory rules issued by the Government for establishment, recognition and regulation of minority institutions and the statutory rules regulating the admissions of students into B.Ed, course issued under Act 5 of 1983 are in force. At this stage it is useful to refer to a passage from the judgment of the Supreme Court in M/s. Erusion Equipment & Chemicals Ltd., v. State of West Bengal, , wherein Their Lordships while considering the action of the respondent in black listing a contractor observed in paragraph 2, that “the Government is a Government of laws and not of men….. The activities of the
Government have a public element and therefore there shall be fairness and equality.” Judged from that angle, the action of the Government cannot be sustained in law as the same is neither in furtherance of the cause of minority students nor maintenance of excellence in the standards of education.

52. Be that as it may, except the Rules issued in G.O. Ms. No.405 all other GOs., adverted to supra are only executive instructions and they cannot neither override the statutory rules nor nullify the effect of the statutory rules. G.O. Ms. No.405 was issued in exercise of the powers conferred by Section 99 of the Education Act which is of a general nature, whereas statutory rules in G.O. Ms. 154 was issued under a special enactment i.e., Prohibition of Collection of Capitation Fee Act, 1983 where under admission to various institutions are regulated. Further, the preamble of this G.O. Ms, No.405 states that these rules were issued prescribing the competent authority for recognition of colleges of education and colleges of physical education as minority educational institutions.

53. Hence, prima facie, I am of the view that Rules 2(2) relating to admission of students in minority educational institutions runs counter to the rules issued in G.O. Ms. No.154 and the rules made under a general provision cannot override the rules made under a special provision or special enactment governing the field. Further, these rules are issued defeating the very object underlying the provisions of Prohibition of Capitation Fee Act and the rules made thereunder i.e., giving a go-bye to the principle of merit in the admissions to these institutions, the excellence in the standard of education resulting in steep fall of standard in education apart from causing frustration among the meritorious students.

54. The Counsel appearing for the institutions submit that G.O. Ms. No.405 issued by the Government is in consonance with Section 4 of the Prohibition of Collection of Capitation Fee Act and G.O, Ms. No.526 as well as G.O, Ms. 154 are ultra vires of Section 4(1) of the Act. To consider these arguments, a reference has to be made to Sections 3 and 4 of the said Act. Under Section 3(1) of the Act, admissions

to all educational institutions have to be made either on the basis of marks obtained in the qualifying examination or on the basis of ranking assigned in the entrance test conducted by such authority and in such manner as may be prescribed. Proviso to this rule states that admissions into medical and engineering colleges shall be made only on the basis of the ranking assigned in the common entrance test conducted for the purpose. Under Section 3(2) the admissions to educational institutions shall be subject to rule of reservation as notified by the Government in that behalf and under the A,P. Education (Regulation of Admissions) Order 1974. As the Counsel appearing for the institutions places much reliance on Section 4 of this Act, the same is extracted hereunder.

Section 4. Special provision in respect of minority educational institutions :–

(1) Notwithstanding any thing 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.

55. The contention of the learned Counsel is that it is open to the minority educational institutions to admit the students who approaches them and they are not under any obligation to admit the students on the

basis of merit list prepared by the Convenor for the concerned minority students as well as non-minority students for filling up the left over seats. They have gone to the extent of contending that under this section they are given the liberty to admit the students either on the basis of qualifying examination or on the basis of the ranking assigned to the students in the entrance test from among the candidates who responded to their notification inviting application for admission into the Course. The fallacy in argument can be noticed from the language employed in Sections 3 and 4 of the Act. While Section 3 states that the admission shall be on the basis of marks obtained in the qualifying examination or on the basis of the ranking assigned in the entrance test. In Section 4, the language used is on the basis of marks obtained by the students in the qualifying examination or on the basis of the ranking assigned to them in the entrance test as the case may be. The words “as the case may be” fell for consideration in many a case. The phrase occurring “as the case may be” in Section 326(2) of the Companies Act were interpreted by Justice Morris in Bluston 7 Bramley, LD. v. Leigh, (18 of 1960) in (9) 1950 KB page 548. The phrase “as the case may be” in Section 326, sub-section (2) does not mean “respectively”. It means “whichever is appropriate in “the events which happen”. “And an order is made or a resolution is “passed, as the case may be” for the winding up the company was interpreted as where there has been a notice of a meeting, it should be followed by an order and in that way where there has been a notice of meeting, it should be followed by a resolution for voluntary winding up. Their Lordships of the Supreme Court interpreted the phrase “as the case may be” occurring in Section 10(3)(c) of Tamil Nadu Buildings (Lease and Rent Control) Act.

56. Shri Balaganesan Metals v. M.N. Shanmjugham Chelly, , as we are of the view that in the context

of sub-clause (c) the words “as the case may be” would only mean “whichever the case may be i.e., either residential or non-residential. The same phrase fell for consideration again in S. Shanmugham v. M.L. Ranjendran, , the meaning of the expression “as the case may be” is what the expression says, i.e., as the situation may be, in other words in case there are separate and distinct units then concept of need will apply accordingly.

57, From the above, it is seen that the words “as the case may be” should mean as the situation may be or whichever the case may be. Hence, Section 4 of Prohibition and Collection of Capitation Fee Act has to be interpreted that the minorities are given liberty to admit the students on the basis of marks obtained by them in the qualifying examination if no entrance test is prescribed and in case an entrance test is prescribed for admission of students into educational institutions they have to admit the students on the basis of the ranking assigned to them in the entrance test, but not by either of the methods as contended by the Counsel for the institutions. When once a common entrance test is prescribed for admission into a particular course, it is not open to any of the institutions either minority or non-minority to make admissions on the basis of marks obtained in the qualifying examination and they are bound to make admissions on the basis of ranking assigned to the students in the entrance test. The need and importance of holding common entrance test was high-lighted by Their Lordships of the Supreme Court in Dr. Preeti Srivastava v. State of M.P., , while repelling the arguments advanced by the Counsel appearing for the State of Madhya Pradesh that there is need to prescribe any minimum qualifying marks in the common entrance examination for admission to postgraduate medical course observed as follows:

“28. This argument ignores the reasons underlying the need for a common entrance examination for post-graduate medical courses in a State. There may be several universities in a State, which conduct MBBS courses. The courses of study may not be uniform. The quality of teaching may not be uniform. The standard of assessment at the MBBS Examination also may not be uniform in the different universities. With the result that in some of the better universities which apply more strict tests for evaluating the performance of students, a higher standard of performance is required for getting the passing marks in the MBBS Examination. Similarly, a higher standard of performance may be required for getting higher marks than in other universities. Some Universities may assess the students liberally with the result that the candidates with lesser knowledge may be able to secure passing marks in the MBBS Examination while it may also be easier for candidates to secure marks at the higher level. A common entrance examination, therefore, provides a uniform criterion for judging the merit of all candidates who come from different universities. …..

Therefore, the purpose of such a common entrance examination is not merely to grade candidates for selection. The purpose is also to evaluate all candidates by a common yardstick.”

58. In fact it is the case of the Counsel appearing for the institutions that they are admitting the students on the basis of the marks obtained by them in the qualifying examination. From the notification issued by these institutions, it is seen that they made it clear that admissions will be made from among the students qualified in the entrance examination. Hence, they cannot now turn-round and contend that they are given liberty to admit students either on the basis of the marks obtained in the qualifying

examination or in the entrance test. While the statutory rules made it obligatory on the part of the minority institutions to admit candidates only from the merit list prepared by the Convenor in case of minority students and as far as non-minority students are concerned the convenor is competent to allot the candidates. Hence, prima facie I am of the view that Rule 2(a) of G.O. Ms. No.405 runs counter to the letter and spirit of Section 4 of the Prohibition of Collection of Capitation Fee Act.

59. The next question that falls for consideration would be whether the minority institutions are free to invite applications by themselves and make admissions without reference to the merit list prepared by the Convenor can be countenanced in law. The Supreme Court in TMA PAI Foundation and others, (supra), while referring certain questions including the correctness of the decision of the Supreme Court in Stephens case (supra), wherein it was held, that the State or affiliating university has no power to regulate admission of students to such minority educational institutions observed as hereunder:

“We entertain serious reservations with respect to the said holding. So long as the Minority Educational Institution is permitted to draw students belonging to that minority to the extent of 50% scats even by going down the merit list, we see no reason why the State/affiliating University cannot stipulate that the general students as well as minority students must all be drawn only from the common merit pool and that even the minority community students must also be admitted on the basis of inter se merit determined on the basis of common/joint entrance test. Article 30, in our opinion, doe not clothe a Minority Educational Institution with the power to adopt its own method of selection of students. It is not a part of the minority character of the Institution. The said requirement is

but a piece of regulation which the State/ affiliating University can prescribe in the interest of fairness and maintenance of standards.”

60. By observing so the order of the Supreme Court dated 24-9-1993 staying admissions of the students to minority educational institutions was vacated.

61. The issue can be viewed from another angle also. By allowing the minority educational institutions to admit the students from among the applicants who appeared for common entrance test amounts to admission of the students not on the basis of merit assigned in the common entrance test, but on the basis of their participation in the entrance test without reference to the merit, In fact, when I repeatedly questioned the Counsel for the institutions that how the right of the minority institutions is effected in administering the institutions by making admissions as per the statutory rules i.e., G.O. Ms. Nos.526 and 154, they have no answer except stating that under Section 4 of the Act they are given liberty to evolve their own procedure for making admission into their colleges. When once it is conceded that grant of permission or recognition is a Governmental function and no one has a fundamental right to seek recognition or affiliation and the Government is well in its competence to lay down conditions for grant of recognition or affiliation, the institution having got recognition and affiliation under the above rules cannot turn-round and contend that the institution being a minority one is not bound to comply with the guidelines with regard to the admissions.

62. For all these reasons, I am of the prima facie view that the G.O. Ms. No.405, to the extent of Rule 2(a) to (c) is not valid in law and runs counter to the scheme envisaged under Prohibition of Collection of Capitation Fee Act and the same cannot be given effect to.

63. Coming to the factual position prevailing in these Institutions from the rules it is seen that the minority institutions are expected to obtain certificates of recognition from the authority concerned every year. But these institutions started issuing notification in the press inviting applications from minority as well as non-minority students for admission into their institutions from July 1999 itself. At that stage, the Registrar, Osmania University addressed a letter No.196l/D/307/2/99-2000 dated to Principals of all the colleges claiming minority status in its territorial jurisdiction stating that several minority students complained that these institutions are not giving applications when they approached the institutions and are not issuing acknowledgment or registration receipt to the candidates when they submitted their applications. Hence all the Principals are directed to issue applications to all the qualified minority students who approached them and also to issue acknowledgments or registration receipt showing the details when the students submitted their forms for registration. The minority colleges were also advised to admit non-minority students only in case of non-availability of registered minority students in any course that too only after allotment of candidates to various non-minority colleges by the Convener is completed. Accordingly these institutions were directed to maintain records to that effect in their own interest in view of the serious complaints received from various quarters. In the last para the Registrar observed that failure to comply with the above stipulations would be viewed seriously which will lead to withdrawal of affiliation by the University. The Government also, perhaps responding to the press reports and advertisements for admission of candidates for the academic year 1999-2000, issued letter No.23940/Trg,I/91, dated 1-9-1999 directing the managements of all the colleges not to commence admissions into B.Ed. courses during 1999-2000 unless and until the Government communicates the list of

approved colleges of education for the academic year 1999-2000 and until the convener commences the Counselling for admissions during 1999-2000. Necessary press release was also given stating that defaulting institutions are liable for taking action. In Para 4 of the letter, the Regional Joint Directors were instructed to participate as a nominee of the Government in the Admissions Committee in minority colleges of education under their administrative control. Thereafter, a press notification No.4180/L.2-I/99, dated 20-9-1999 was issued communicating the list of approved colleges of education for the year 1999-2000 including minority colleges in the annexure appended to the notification. From these two communications, it is seen that the minority institutions are not expected to commence admissions, before the Convener commences Counselling for admissions during 1999-2000. But in reality while some of the institutions started issuing notifications in the press even before obtaining minority status certificates, some other institutions gave advertisements immediately after obtaining the certificates.

64. The petitioner filed WP No.17793 of 1999 on 22-8-1999. In the affidavit filed in support of the writ petition, she categorically stated that these minority institutions started issuing notifications inviting applications for admission even before the Convener issued notification calling for applications from the qualified candidates in the entrance test who are desirous of seeking admission in the private institutions. On 28-8-1999 having seen the rules while giving notice on admission, I directed the respondents 3 to 6 to produce the list of students that were admitted into B.Ed course till that date and also file affidavit whether the students appeared for the EDCET examination and if so, the ranks obtained by them. They shall also file social status certificates produced by the students and marks obtained by them in the
qualifying, examination apart from the certificates granted by the competent authority that theirs was a recognised minority institution and posted the writ petition for admission to 6-9-1999. Thereafter, the matter underwent several adjournments at the instance of the Counsel for the respondents. On 7-10-1999 the Counsel for respondents 4 and 5 submitted that the admissions in those colleges were closed by then. The Counsel for the 3rd respondent submitted that selection of the students was over and they were granted time to pay the fees. While directing the 3rd respondent not to admit the students, respondents 3 to 5 were directed to make available the applications submitted by the selected candidates as well as the applications of unselected candidates with SSC original certificates. In case of Institutions where selection process is going on, 1 observed that tliey might finalise the admissions and submit the same along with applications to mis Court.- On 9-12-1999 I appointed duty Counsel to inspect the records of each of the institution mentioned against their names and submit their reports on the points mentioned therein. As stated supra, while Muslim minority colleges produced the records, except St. Anns College for Women, Secunderabad and Siddhardha College, Kavali, no other Christian minority institution produced the record, though this Court gave sufficient time as sought for by the Counsel. Hence as far as other Christian minority institutions are concerned, I have no option, except to draw and adverse inference that they are giving admissions at their whims and fancies ignoring the statutory rules as well as the instructions that have been given from time to time by the Government.

65. Secondly, from the reports of the Duty Counsel, it is seen that the colleges, which produced the records, started giving advertisements in July and August, 1999 inspite of the instructions issued by the Government on 1-9-1999. It is seen from

the reports that proper account of printing and sale of applications was not maintained. Likewise, though the Government never permitted them to collect any fee on the sale and registration of the applications, these institutions sold the applications ranging from Rs.350/- to Rs.50/-.

66. For instance Shadan College sold 1028 applications at the rate of Rs.200 per application and fetched the income of Rs.2,05,600/-. The same college collected Rs.200/- towards registration charges and according to them, they received 980 applications. On this account, the college fetched Rs.1,96,000/-. Likewise Osmania College of Education, Kurnool sold 1000 applications at the rate of Rs.300/- per application and fetched an amount of Rs.3,00,000/-. Ghulam Ahmed College sold applications at the rate of Rs.350/- per application, but they have not given the number of applications sold and the number of applications received. St. Anns College sold 928 applications at the rate of Rs.50/-per application and collected registration fee at Rs.50/-. In all, this college earned Rs.85,400/-. Anwar-UI-Uloom College sold 849 applications at the rate of Rs.100/-per application and earned Rs.84,900/-. Osmania College sold 628 applications at the rate of Rs.300/- per application and earned Rs.1,88,400/-. Siddardha College, Kavali sold 1672 applications at the rate of Rs.200/- per application and earned Rs.3,34,400/-. This is how the minority institutions are allowed to enrich themselves even before they gave admissions to the students.

(3) Though these institutions were directed not to commence admissions until the approved list of Colleges for the year 1999-2000 is communicated and until the Convenor commences the Counselling for admissions, all of them completed admissions before the list of approved colleges was communicated by the Government along with the press note dated

20-9-1999 and before the Convenor commenced the Counselling.

(4) None of the colleges followed reservations in favour of women as contemplated under Rule 10(3)(E) of the Admission Rules.

(5) None of the colleges maintained records as contemplated under G.O. Ms. No.154, inspite of the instructions given by the Registrar, Osmania University dated 10-8-1999, to that effect.

67. This defects noticed by the duty Counsel college-wise are given as hereunder:

Shadan College:

The serial number of the application is not tallying with the number shown in the receipt. This college prepared merit list methodology-wise and put-up on the notice board on 23-8-1999, 15-9-1999 and 8-10-1999. The case of the college is that on the basis of an interview held on 21-9-1999 and 22-9-1999, for the local and non-local Muslim candidates from the ranks mentioned in the notification, the selections were made. But they have not produced any call letter sent to the candidates or any paper notification issued directing the candidates to appear for the interview for admissions in their college. From the merit list prepared methodology wise, it is seen that several meritorious candidates who responded to their notification and submitted applications seeking admission into B.Ed, course were not given admission. The admissions were not made in accordance with six point formula. The college has not produced any evidence to show, how many students came for interview, how many of them were admitted, how many of them were rejected and the reasons for such rejection. The particulars of admissions made by this college are furnished hereunder:

Methodology

Total admissions

Non-local

Biology

48

12

Mathematics

72

26

Physical Sciences

8

7

Social Studies

32

9

68. This Institution has not prepared the master merit list of the meritorious candidates as required under the rules, but prepared separate lists for local and nonlocal candidates and as per the Presidential Order, out of the total intake of the seats, 85% of the seats have to be reserved for local candidates and 15% of the seats are left unreserved for which both local as well as non-local candidates are eligible to claim admission on the basis of the ranks.

Anwar-Ul-Uloom College of Education:

The college has not followed the six-point formula. Several students belonging to Muslim minority who secured higher marks were not given admission. The students were admitted in four batches. The case of the college is that they issued press notification about the display of the select list on the four occasions and admitted the students who have turned-up within the stipulated time. This college also started admissions from 8-9-1999. The first list was displayed on 8-9-1999. The abstract of candidates applied for B.Ed, (1999-2000) is furnished hereunder:

Sl.No

Subject

Minority

Non-minority

Total No.of candidates

 

 

Local

Non- Local

Local

Nan-Local

 

1.

Mathematics

47

110

44

3

204

2.

Physical Science

4

10

2

Nil

16

3.

Biological Sciences

200

65

Nil

Nil

265

4.

  
   
  Social Studies
  
   
  191
  
   
  152
  
   
  Nil
  
   
  1
  
   
  344
  
 
    




 


69.    From    among    the    selected candidates, several students were admitted

after the last date for payment of fees. Some of them were admitted as late as on 3-11-1999 while the admissions are completed according to them by 5-10-1999. The abstract of admissions made in this college during the academic year 1999-2000 is furnished hereimder:

Sl. No

Subject

M

N. M

Total

BC-B

BC-A

BC-D

Spl. Category

 

 

 

 

 

M

N. M

M

N. M

M

N. M

 

1.

Mathematics

30

47

77

8

 

1

 

 

 

 

2.

Physical Science

01

02

03

–

 

–

 

 

 

 

3.

Biological Science

48

 

48

–

 

–

–

–

1

P.H

4.

Social

31

01

32

–

 

–

–

–

 

 

 

Total

110

50

160

8

 

1

 

 

1

 

M – Minority

N.M – Non Minority

70. If the dates of admissions are seen, though their names appear in different select lists, they did not join the college within the time stipulated in that list and several of them joined at the end of October and November, 1999.

Siddartha College of Education. Kavali:

This college sold 1672 applications and received only 647 applications viz., Mathematics – 166; Physical Sciences – 76; Biological Sciences – 147 and Social Studies – 258.

71. It is the case of the college that the selected candidates were informed of their selection by way of certificate of posting on 7-10-1999. The particulars of the candidates admitted were given as hereunder:

S.No.

Methodology admitted

Total

Nature
of candidates

Christians

Converted

Others

1.

Physical
Sciences

24

5

12

7

2.

Mathematics

43

 

43

 

 

 

 

(all are converted and minority certificates obtained after notification. In some
signatures of Priest are not there. Some were counter-signed by MRO.)

3.

Social Studies

53

5

 

48

4.

Biological
Sciences

22

 

1

21

72. While admitting non-minority students, rule of reservation was not followed. They have also not followed six point formula.

St. Ann’s College for Women, Secunderabad:

Out of 928 applications sold the institution received 780 applications.

Methodology

Total admitted

Christians

Converted

others

Social
studies

25

24

1

 

Biological
Science

37

36

 

1

 

 

 

 

Ex.

serviceman

Mathematics

44

17

 

27

PH    BC.A    BC.B    BC.D

2        2         3          2   

Physical
Sciences

19

3

 

Non. Minority-16

BC.B-2     BC.D-1    DCs.-13

73. From the merit list prepared methodology-wise, several students who got higher marks than the admitted candidates were not given admission. The institution tried to justify the admissions stating that they informed the candidates through certificate of posting. While admitting non-minority students, the rule of reservation is implemented in favour of BC candidates, but no SC or ST candidate was admitted. Though the registration list shows that in Biological Sciences and Mathematics, SC students applied for admission, they were not given admission. It is seen that six-point formula was not followed. One Aruna Kumari, D/o. K. Raju Reddy was admitted as a converted Christian.

74. Further, this Institution is a party respondent in WP No. 17793 of 1999 and the admissions have taken place after 21-10-1999 i.e., after my order dated 7-10-1999.

Ghulam Ahmed College:

The records of this college shows that the candidates selected for admission were informed by registered post acknowledge due and the candidates reported were admitted in the college. The selection process was completed in 5 spells and several meritorious students did not report. It is not known whether the students have not turned up or the Management admitted the students of their choice. The fact remains that the institution did not maintain any records as directed by the Registrar in his letter dated 10-8-1999.

Osmania College of Education. Kurnool:

This college has also taken the precaution to admit only minority students on the basis of merit.

75. These two colleges seemed to have not followed six-point formula while making admissions.

76. From the above factual narration, it is seen that following a make believe process admissions were made into all these institutions and even then these institutions indulged in several illegalities and irregularities. I have no manner of doubt in arriving at the conclusion that the Government by allowing these institutions to invite applications on their own and make admissions permitted these colleges to commit these illegalities and the casualty being the merit underlying the objects behind Prohibition of Collection of Capitation Fee Act. The Government alone has to be blamed for the illegalities committed by these institutions by amending the well-drafted statutory rules for no reason and if I may hold for extraneous reasons.

77. in the light of the view taken by me on the validity of G.O. Ms. No.405 and factual position prevailing in these institutions adverted to above, I cannot, but hold that by allowing the minority institutions to admit the students into B.Ed Course, as a matter fact, any other courses on their own where a common entrance test is prescribed for admission to maintain excellence in standards of education without reference to the Convenor, resulted in fall of standards in the education and lead to frustration among the meritorious students thereby defeating the very objectives sought to be achieved by enacting Prohibition of Collection of Capitation Fee Act (Act 5 of 1983). Further the very fact that some of the institutions made admissions in spite of the orders of this Court dated 28-8-1999 and the orders of the Government dated 1-9-1999 shows the anxiety and attitude of these institutions in making admissions without adhering to the orders of the Government as well as the Court.

78. For all these reasons, the admissions made by these institutions cannot be allowed to stand on the ground of lis pendence as these admissions are made after the orders of this Court dated 2S-S-1999 and 7-10-1999 as well as the orders of the Government dated 1-9-1999. Accordingly, while setting aside the admissions made by these colleges I direct the respondents to make admissions into minority institutions strictly in accordance with the procedure laid down in G.O. Ms. Nos.526 and 154 without reference to either G.O. Ms. No.405 or any executive instructions except to the extent of Para 2(1)(a) of G.O. Ms. No.23, dated 10-3-1999 wherein it was stated that no candidate on the basis of bogus minority certificate shall be given admission by these institutions, issued by the Government in this regard from time to time. In other words, the Convenor has to ignore minority certificates obtained by the students of majority community if they have passed the qualifying examination as a non-minority

student. At the same time, the Convenor may try to allot the students who have taken admissions to the respective minority colleges, if they come up for admission on the basis of ranking assigned to them by allotting the more meritorious students of any particular minority community to the concerned minority college where the admission process was not completed. However, it is made clear that the students who have taken admission in these colleges, if they have not come up for selection as per the merit, the question of continuing their admission does not arise and the Convenor may follow the rule that last come should go first. As the academic year commenced about four months back, the process of allotment of the candidates on the basis of the ranking obtained by them in the entrance test shall be completed as expeditiously as possible to save the academic year for the students who are awaiting admission.

79. Only Petitioner No.3 in Writ Petilion No.20814 of 1999 produced the records. Other petitioners in WP Nos.20814 of 1999 and 24407 of 1999 having taken time to produce the records from time to time, did not chose to produce the same even after their efforts to get the orders of the Court reversed, ended in futile exercise. With the result, the duty Counsel appointed were forced to wait for a number of days in the Court suspending their professional work in other Courts under the hope that these institutions will produce the records. Hence, I direct the Registrar (Judicial) to collect the fee payable to the duty Counsel from each of the petitioners at Rs.2000/- in these writ petitions (Rupees two thousand only) before issuing certified/carbon copy of the order and remit the same to the A.P. State Legal Services Authority.

80. This Court would like to place on record the valuable assistance rendered by Sri S. Satyanarayana Prasad, senior Counsel as arnicas curie, Sri M Subramanyam,

Government Pleader and Ms. T, Jayanti, Counsel appearing for the Convenor.

81. Post the writ petitions for further hearing on 31-1-2000.