1. In Writ Petition No. 11018 of 1983 there are two petitioners and in each of the other writ petitions there is one petitioner only. These 18 petitioners in total have filed these applications seeking a Writ of Mandamus or any other order declaring that the respondents viz., the Government of Andhra Pradesh, Osmania University and Venkateswara University represented by their Registrar, and some other viz., Professors, who constitute the committee for selection of the candidates for admission into the private engineering colleges, are bound to follow the six point formula as provided in the Presidential Order of 1974 and that all the admissions made by them into these private engineering colleges is in violation of that Presidential Order and also to issue a direction directing the respondents to admit the petitioners to any of those affiliated Colleges. The necessary facts are as follows.
2. The petitioners appeared for the Intermediate examinations in their respective colleges situated in the State of Andhra Pradesh. After having thus qualified they also appeared and passed in merit in the common entrance test jointly conducted on behalf of the Andhra University, Osmania University and Sri Venkateswara University under the supervision of the Government of Andhra Pradesh. They claim that they are entitled to get admission in any of the engineering colleges within area of these universities as per the regulations, rules and procedure prescribed under the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974, (hereinafter referred to as 'the Presidential Order.') and in pursuance of the commonly known policy and procedures known as six point formula under the Ordinance viz., Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Ordinance, 1983. There are about 13 private engineering colleges within the area of these three Universities and according to the petitioners, if the 6-point formula is to be applied to those colleges also, the petitioners are entitled to be admitted in preference to some of the candidates, who are admitted ignoring the six-point formula. But for the impugned G. O. Ms. No. 310 Education, Dated 27-7-1983 amending the Presidential Order, 1974, deleting applicability of the said order to the private engineering colleges in the State, the concerned University Authorities have to enforce the six-point formula. The petitioners therefore, submit that G. O. Ms. No. 310 dated 27-7-1983 is ultra vires and if the said G. O. is to be declared illegal and invalid then all the three University Authorities have to honour the Presidential Order and observe six point formula.
3. In the counter-affidavit filed on behalf of the Government and the other respondents it is admitted that the Common Entrance Examination was held on 22-5-1983 and that all the petitioners applied for admission to private engineering colleges in Andhra Pradesh in response to the advertisement issued by the Governor, Common Entranct Examination Committee. It is also stated that the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (hereinafter referred to as 'the Act 5 of 1983') regulates admission to engineering colleges and Medical Colleges on the basis of ranking assigned in the common Entrance Examination conducted subject to the Rules framed under Section 3 (1) read with S. 15 (1) of the Act. Admission to these Educational Institutions shall be subject to the rules made by the Government in regard to the reservation of state to the members belonging to the Schedulred Castes, Schedulred Tribes and Backward Classes and the Presidential Order was issued under sub-clauses (1) and (2) of Article 371-D of the Constitution of India regulating the admissions to the Universities and the other educational institutions controlled by the State Government having been lcoated in their respective local areas as contained in Clause (3) of the Presidential Order applies to admissions to the Universities in the local areas and Educational Institutions subject to the control of the State Government in those local areas. It is further stated in the counter-affidavit that the Presidential Order has no application to private engineering colleges managed by private managements and that G. O. Ms. No. 310, Education dated 27-7-1983 adding a proviso to clause (d) under sub-rule (2) of Rule 6 that the Presidential Order shall not apply to engineering colleges maintained by private managements is valid as the Government has no control over the private engineering colleges. By issuing the said G. O. the Government has onlymade the position clear viz., that the private engineering colleges are excluded from the purview of the Andhra Pradesh Educational Institutions. The further stand taken by the Government is that consequent upon the abolitionn of the Capitation Fee, the Government decided to admit all 12 private engineering colleges in the State to grant by way of recurring and non-recurring grants as per the directions of the High Court in W. P. No. 3472 of 1983 and batch.
4. It can thus be seen that the stand taken by the Government as well as the University Authorities is that the State Government has no functional control over the management of the private engineering colleges and consequently, the Presidential Order cannot be made applicable to these private engineering colleges. The impugned G. O. viz. G. O. Ms. No. 310 is only issued to make the position clear and that the petitioners cannot insist that the six-point formula underlying the Presidential Order should be applied to these private engineering colleges also.
5. For the better appreciation of the rival contentions, it becomes necessary to refer to some of the relevant provisions. Article 371-D lays down that the President may by order made with respect to the State of Andhra Pradesh provide, for equitable opportunities and facilities for the people belonging to different parts of the State, in the matter of public employment and in the matter of education. And different provisions may be made for various parts of the State.
6. In exercise of the powers conferred by clauses 1 and 2 of Article 371-D of the Constitution of India, the President promulgated the Presidential Order. Clause 3 of the Presidential Order specifying the local areas divided the State of Andhra Pradesh into three areas; the areas covered by the Andhra University, Nagarjuna University, the area covered by the Osmania University and the areas covered by Sri Venkateswara University. While specifying each of the areas, Cl. 3 further lays down that the Districts mentioned therein in respect of each area shall be regarded as the local area for the purpose of admission to the respective Universities mentioned therein and to any other Educational Institutions (other than a Statewide University or Statewide Educational Institution) which is subject to the control of the State Govt. and is situated in that part. Cl. (4) defines the 'local candidated' and lays down that a candidate for admission to any course of study shall be recognised as a local candidate in relation to a local area and further lays down certain conditions which have to be applied in deciding the question whether a particular candidate is a local candidate or not. Clause (5) deals with the reservation in non-Statewide Universities and educational institutions and provide for admissionst to 85 per cent of ht eavaliable seats in every course of study provided by these Universities or by any other educations institutions, which is subject to the control foht e State Government shall be reserved in favour of the local candidates in relation toh te local area in respecst of such University or any other educational institutions. Clause (9) of the Presidential Order further lays down that the said order shall have effect notwithstanding anything contained in any statute. Ordinance, Rule, regulation or other order (whether madxe befsore or after the commencement of this Order) in respect of admissions to any University or to any other educational institution usbject to the control of the State Government. A combined reading of these and other relevant clauses in the Presidential Order make it abundantly clear that the Presidential Order applies to all other educational institutions alos, viz., all other institutions managed privately alos, provided they are subject to the control of the State Government.
7. Act 5 of 1983 was published on 7th April, 1983 in the Andhra Pradesh Gazette with an object to provide for regulation of admission into Educational Institutions and to prohibit the collection of capitation fee in the State of Andhra Pradesh. Section 1 lays down that the Act shall be deemed to have come into force on 30th January, 1983 and that it shall apply to all Educational Institutions. Section 2 (c) defines 'educational institution' as :
' 'Educational institution' means a college, a school imparting education up to and inclusive of tenth class or other institution by whatever name called, whether managed by Government, private body, local authority or University and carrying on the activity of imparting education therein, whether education therein, whether technical or otherwise, and includes a polytechnic Industrial Training Institute and a Teachers Training Institute, but does not include a tutorial institution.'
Section 3 (2) reads thus:
'The admission into educational institutions under sub-section (1) shall be subject to such rules as may be made by the Government in regard to reservation of seats to the members belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and the Andhra Pradesh Educations Institutions (Regulation of Admission) Ordr 1974.'
In exercise of powers conferred under Section 3 of Act 5 of 1983, Rules were framed regulating admission of students into engineering colleges in the year 1983 and hate rules are made applicable to all the engineering colleges of the three Universities, namely Andhra University, Osmania University, Venkateswara University and also to all the affiliated engineering colleges under private managements in the State of Andhra Pradesh other than minority educational institutions. Rule 2 further lays down that a common entrance test shall be conducted every year for selection of candidates for admission into first year B.E./B.Tech. courses in all the engineering colleges including the colleges maintained by private management in the State. The Rules further prescribe the reservations, Rule 5 provides for the selection of the candidates. It may not be necessary to refer to the Rules made by the Government in regard to the reservation of seats to the members belonging to scheduled castes, scheduled tribes, backward classes inasmuch as the same is not in dispute.
8. The learned Advocate General strongly contended that the private engineering colleges are not subject to the control of the Government and therefore the Presidential Order cannot be made applicable to such colleges. No doubt as already mentioned, a combined reading of all the provisions of the Presidential Order lays down that it applies to all other educational institutions which are subject to the control of the State Government. But the real question is whether these private engineering colleges are subject to the control of the Government. In K. S. Ramamurthy v. Chief Commissioner. Pondicherry : 1SCR656 their Lordships observed thus:
'It is submitted on behalf of the petitioner that if an authority is appointed by the Government of India, is paid by the Government of India and is liable to disciplinary action by the Government of India, it would be an authority 'under the control of the Government of India.' In Chief Justice of Andhra Pradesh v. L. V. A. Dikshitulu, : 1SCR26 it is held:
'..........the primary purpose of enacting Article 371-D was twofold: (i) To promote 'accelerated development of the backward areas of the State of Andhra Pradesh so as to secure the balanced development of the State as a whole', and (ii) to provide equitable opportunities to different areas of the State in the matter of education employment and career prospects in public service.'
Their Lordships considered the meaning of the word 'control' occurring in Article 235 and observed that the word 'control' is accompanied by the word 'vest' which shows that the High Court alone is made the sole custodian of the control over the judiciary.
9. State of Haryana v. Inder Prakash, : AIR1976SC1841 is again a case where the scope of Article 235 of the Constitution of India is considered and it is observed that the control, which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including dismissal, removal, reduction in rank and the initial posting and of the initial promotion to District Judge.
10.Relying on these decisions the learned Advocate General submits that all the private engineering colleges are managed by private bodies and the Government or the University authorities have no say in the matter of appointment or any disciplinary action or in the internal affairs of these institutions and therefore they are not subject to the control of the State Government. The learned Advocate General stresses that the Government has no functional control over these colleges and therefore the Presidential Order cannot be made applicable to those colleges. But when we examine several rules and regulations it becomes clear that these private institutions are subject to the control of the State Government. For this purpose, it may not be necessary to refer to all the rules and regulations. The Andhra Pradesh Regulations of Admission of Students into Engineering Colleges made under Sec. 3 of Act 5 of 1983 themselves show that they apply to all colleges privately managed. The rules further lay down that a common entrance test should be conducted every year for selection of candidates for all these colleges as well as to the Colleges of the Universities and the said test shall be conducted by one of these Universities or Engineering Colleges in the State nominated by the Government every year. Rule 5 (3) lays down that there shall be a Common Entrance Examination Committee constituted as specified in sub-rule (3) for taking decision from time to time on various aspects mentioned therein viz., pattern of the question papers, duration of the test, fees to be collected from the candidates, and all such other issues as may be referred to the Committee by its Chairman or Government. The rule further lays down that the said Committee shall consist of a Chairman, one representative of each of the Universities, one representative of the Regional Engineering College, Director of Technical Education, Andhra Pradesh, one member to be nominated by the Government and one Professor to be nominated by the Chairman. It is also laid down that the Chairman of the Common Entrance Examination Committee shall be the Vice-Chancellor of the University of the Principal of the Regional Engineering College, Warangal as nominated by the Government for the academic year, Rule 4 lays down that the amount collecsted from the candidates appearing for the entrance test shall be deposited in the Bank in the name of the Committee. As already mentioned, Rule 5 lays down that it is this committee that selects the candidates and the minimum requirement shall be open to review by the Committee. Apart from these aspects the Government gives grants to these private engineering colleges. S. 8 of the Act 5 of 1983 empowers the Government to take over the management of any such institution has contravened the provisions of the Act. As already mentioned the reservations of seats is also done by the Government. These and many other aspects go to show that these institutions are undoubtedly under the control of the State Government, and, therefore, the Presidential Order does apply to these institutions.
11. There is one other aspect which also shows that the six-point formula is laid down by the Presidential Order applies to these institutions. Section 1 of Act 5 of 1983 unequivocally lays down that it applies to all educational institutions and as already mentioned Section 3(2) lays down that admission into educational institutions shall be subject to rules to be made4 by the Government in regard to reservation of seats to the members belonging to scheduled castes, scheduled tribes, backward classes under the Andhra Pradesh Educational Institutions (Regulation of Admission) Order of 1974. It can, threfore, be seen that Act 5 of 1983 prescribes that in the matter of admission to all educational institutions the Presidential Order also has to be enforced.
12. Now, coming to the rules made undesr Act 5 of 1983, which govern the admission to the engineering colleges, also make it clear that these rules apply to all engineering colleges. Rule 6 (2) (c) in particular reads thus:
'(c) The seats available in all the affiliated colleges will be pooled up and will be distributed among the three regions of the State, (i.e. Andhra University, Osmania University and Sri Venkateswara University local areas) in accordance with the provisions contained in Andhra Pradesh Educational Institutions (Regulation of Admissions) Order, 1974.'
These rules clinches the issues and no further scrutiny in this regard is necessary and, therefore, there cannot be any doubt that the admissions have to be made to all the engineering colleges including private engineering colleges also in accordance with the Presidential Order.
13. While so the Government by its G. O. Ms. No. 310 added a proviso after Rule 6 (d). Rule 6(d) reads thus:
'(d) Candidates who secure high ranks at the entrance test will be called for an interview in the order of merit for selection and allotment of branches/institutions. For the convenience of candidates, representatives of all constituent colleges and the Principals of the affiliated colleges in the State will sit at a common table. As and when each candidate gets his turn for interview in the order of merit, choice of institution and branch (course of study) will be given to him depending upon their availability at the point of time with due regard to the eligibility of the candidate for a seat in a particular local area or for a particular reserved category.'
The proviso introduced in G. O. Ms. No. 310 reads thus:
'Provided that the Andhra Pradesh Educational Institutions (Regulation of Admission) Order 1974, shall not apply to engineering college maintained by private managements.
By adding this proviso to Rule 6(d) the Government intends to make the Presidential order inapplicable to private colleges. As already mentioned clause 9 of the Presidential Order has overriding effect and therefore the G. O. is ultra vires the Presidential Order and also opposed to the provisions of Act 5 of 1983 and the Rules made thereunder. For all these reasons G. O. Ms. No. 310 is quashed and in the result the respondents have to follow the provisions of the Presidential Order and select the candidates for admission into all these Engineering Colleges observing the 6-point Formula.
14. The learned Advocate General relied on certain observations made by the Division Bench in W. P. No 3492 of 1983 and batch, dated 23-12-1983. Before the Division Bench several private Engineering Colleges challenged Act 5 of 1983. The Division Bench dismissed the writ petitions and observed that in the implementation of Act 5 of 1983 should there be any financial deficiency in those institutions, the Government shall make good proportionately and adequately by way of grant recurring as well as non-recurring. During the course of the judgment the learned Judges observed that regulating the right to admission cannot form part of the management and there is no intereference with the right to administer the institution; and at a later stage the Division Bench also observed that the right to admission to educational institutions is not fundamental and that even if it tantamounts to be taking away the management, it has been done under a procedure established by law and that the extension of grant in aid by abolishing capitation fee, will not result in conversion of what were hitherto unaided institutions into aided institutions. I have carefully examined these observations and the Division Bench has nowhere said that by virtue of Act 5 of 1983 the private engineering colleges cease to be under the control of the Government.
15. At the time of admission of these writ petitions this Court gave interim directions to the respondents to reserve the seats pending further orders. The learned Advocate General submits that there are 6 seats available in Sri Venkateswara University and 27 seats available in the Osmania University which were unfilled, but 21 seats in the Osmania University have been subsequently filled up in pursuance of the directions given by the Supreme Court. It is stated in the counter-affidavit that 1333 seats are filled up and the candidates selected are admitted and are attending classes. Some of them are no doubt impleaded as respondents in these writ petitions. But the fact remains that half of the academic year is over and it will cause great hardship if their selections are invalidated, and for no fault of theirs, their educational career will be effected.
16. Therefore, the only question which survives is whether the petitioners should alone be admitted in accordance with the rules cancelling the admission already made and thus displacing the students who are already undergoing the course. In Arti v. State of Jammu and Kashmir 0065/1981 : 3SCR34 , their Lordships after allowing the writ petitions of candidates who are wrongly denied admission into medical college, observed thus:-
'The candidates who will be displaced in consequence have already completed a few months of study and in order to avoid serious prejudice and detriment to their careers it is hoped that the State Government will deal sympathetically with their cases so that while effect is given to the judgment of this Court the rules may be suitably relaxed, if possible by a temporary increase in the number of seats, in order to accommodate the displaced candidates.'
This Court while admitting the writ petitions directed reservation of some seats. As per these interim directions a total number of 14 seats directed to be reserved. Out of them eight seats are directed to be reserved in the colleges affiliated to Sri Venkateswara University and 6 in the collegs affiliated to Osmania University. The learned Advocate General submits that though directions are given by this Court all the seats may not be available. But since there was a direction from this Court the same has to be enforced and if necessary additional seats have to be created. The next question is whether the filling up of the seats should be confined only to the writ petitioners. In Punjab Engineering College, Chandigarh v. Sanjay Gulati, : 2SCR801 their Lordships after following the decision in Arti v. State of Jammu and Kashmir, 0065/1981 : 3SCR34 and other decisions observed thus:
'Following these decisions, we direct that admission to the 16 additional vacancies for the academic year 1983-84 shall be made in accordance with merit on the basis of the lists which were prepared for the academic year 1982-83 .......... ............. ........... ............. ........... .............. .............. .......'
Therefore, it if just and necessary that the cases of all the candidates who had applied for admission and hwo are not admitted should be considered on the basis of open merit irrespective of whether they have filed writ petitions. Accordingly, the respondents are directed that admission to these 14 seats for the academic year 1983-84 shall be made in these private engineering colleges in accordance with the Presidential Order of 1974 and other rules regarding reservations. While doing so, the concerned authorities shall not only consider the cases of the writ petitions, but also that of the other candidates who are not admitted and fill up the seats on the basis of merit.
17. The writ petitions are accordingly allowed. No costs. Advocate's fee Rs. 50/- in each.
18. Petitions allowed.