Dismissed

Islamia Colege of Education, Siddipet, Medak v. The Government of a.P., rep by its Secretary

Telangana HC31 Jan 2011WP/16723/2008

Case brief

AI extract

What is this about?

Common order dismissing multiple writ petitions challenging Andhra Pradesh B.Ed. admission rules. The bench held State rules prescribing admission methodologies were not repugnant to the Central NCTE Act and upheld penalties for deviation, allowing minority colleges to fill specific percentage of seats with non-minority students on merit.

What did the court decide?

Dismissal of all writ petitions; no order as to costs.

Islamia Colege of Education, Siddipet… — Pension and Retirement Benefits | Telangana HC (2011)

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HON’BLE SRI JUSTICE A.GOPAL REDDY

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AND

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HON’BLE SRI JUSTICE C.V.RAMULU

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W.P.Nos.15895, 15896,16645, 17749, 18289,14692,14978,16723,16751,

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18721,18951,18952,20038

and

16984 of 2008

DT. 31-1-2011

WP NO.15895/2008:

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1. St.Adams Educational Society, Hyderabad and others

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…Petitioner

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1. The Government of Andhra Pradesh, represented by is Principal Secretary, School Education Department, Secretariat Buildings, Hyderabad and others ..Respondents

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The Court made the following:

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HON’BLE SRI JUSTICE A.GOPAL REDDY

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AND

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HON’BLE SRI JUSTICE C.V.RAMULU

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W.P.Nos.15895, 15896,16645, 17749, 18289,14692,14978,16723,16751,

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18721,18951,18952,20038 and 16984 of 2008

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Common Order: (Per the Hon’ble Sri Justice A. Gopal Reddy)

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In these batch of writ petitions, the validity of the Rules, namely, Andhra Pradesh Colleges of Education (Regulation of Admissions into B.Ed., Course through Common Entrance Test) Rules, 2006 (for short “the Rules”) issued in G.O.Ms.No.92 Education (SE-Trg-1) Department dt. 16-11-2006 and consequential G.O.Rt.No.295 Education (SE-TRG) Department dt. 30-4-2008 and proceedings in RC No.480/N2-1/2008 dt. 19-6-2008 of the 8^th respondent, namely, Commissioner and Director of School Education, Government of Andhra Pradesh, Hyderabad, is questioned as arbitrary, illegal and unconstitutional. Therefore, they are heard together and disposed of by this common order.

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Petitioners in all the writ petitions are minority educational institutions, established for the purpose of imparting education and training in Bachelor of Education Course, particularly for the benefit of Muslim Minority Community. Since all the writ petitions contain similar facts, it is unnecessary to notice the facts in all the writ petitions except facts in WP No.15895/2008.

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The petitioners 1 and 2 in WP No.15895/2008 obtained permission from National Council for Teacher Education (for brevity “NCTE”) with an intake capacity of 100 students. The Government of Andhra Pradesh has a right to provide the mode and method of making admission under the A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (for short “the Capitation Fee Act”).

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Rule 5 of the Rules, which provides method of admission, reads as

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under:

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“5 . Method of Admission: The general guidelines for the admission of candidates into the Colleges of Education offering B.Ed., Course shall be as follows:

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(i) The admissions shall be made in the order of merit on the basis of the rank assigned in EDCET/EDCET-AC and to the extent of sanctioned seats.

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(ii) The percentage of candidates to be admitted in each methodology (subject) in the University/Government/Private institutions shall not exceed the limit prescribed by the Universities/Government from time to time. The percentage of admissions into the four methodologies shall be as follows:

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(a) Mathematics Methodology :30%

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(b) Physical Sciences Methodology: 15% © Biological Sciences Methodology: 25%

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(d) Social Studies Methodology : 30%

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(iii) The methodology-wise percentages shall be followed strictly as prescribed above for all the seats either allotted by the Convenor, EDCET/EDCET-AC or filled by the managements under Category-B seats.

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(iv) The admissions into all University/ Government/Private Aided/ Private unAided Colleges of Education shall be made though a single window system in the order of merit on the basis of rank assigned in EDCET/EDCET-AC.

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(v) All the seats in Un-Aided Minority/Non-Minority Institutions offering B.Ed., Course shall be filled as follows:-

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(a) All the Category-A seats shall be filled by the respective Institutions by admitting candidates as allotted by the Convenor of EDCET/EDCET-AC, as the case may be, depending upon the option exercised by Institutions as prescribed in the Andhra Pradesh Conduct of Education Common Entrance Test for Admission into B.Ed., Course Rules,2004.

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(b) All the category-B seats shall be filled by the respective Institutions in the order of merit based on the bank obtained in EDCET/EDCET-AC duly following the procedure laid down in Rule 6(iv) hereunder.

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(c) The admission of the candidates made in the Un-Aided NonMinority/Minority Colleges of Education shall be subject to scrutiny by the Inspecting Authority (I.A) appointed for the purpose.

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Rule 6 deals with procedure of admissions. Rule 6(b)(6) reads as under:

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6. Procedure of Admissions:

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(i) Each Un-aided Minority Institution which has opted for EDCET under the Andhra Pradesh Conduct of Education Common Entrance Test for Admission into B.Ed., Course Rules, 2004 shall indicate in writing to the AFRC within the cut-off date specified by it, as to whether the college would admit students through the single window system to be operated by the Convenor of EDCET admissions (EDCET window) or the Covnenor of EDCET-AC Admissions (EDCET-AC window).

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(ii) For the purpose of admissions, all the Institutions shall be divided into three groups viz.,

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(1) Single Window-I: Institutions opting for Single Window System operated by the Convenor of EDCET admissions from EDCET rank holders.

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(2) Single Window-II: Institutions opting for Single Window System operated by the Convenor of EDCET-AC admissions from EDCET rank holders.

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(3) Single Window-III: Institutions opting for Single Window System operated by he Covnenor of EDCET-AC admissions for EDCET-AC rank holders.

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(iii) The procedure for admission of candidates to the Single Windows operated by the Convenor of EDCET and EDCET-AC shall be as follows: (a) x x x xx ;

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(b) Procedure to fill up the seats through SW-II: Category-A seats (80%) in Unaided Colleges of Education, which have opted for EDCET and admissions through EDCET-AC window.

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(1) to (5) x x x x;

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(6) Candidates shall be called for counselling and provisional allotment of Courses/Institutions shall be made in the order of merit based on the rank assigned in EDCET by following the Rules of Reservation as per Rule 7 hereunder and such allotment is only provisional: Provided that in respect of Minority Colleges of Education seats shall be allotted only to the eligible candidates belonging to the concerned Minority.

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In pursuance of Entries 65 and 66 of List-I read with Entry 25 of List-III, the Central Government had enacted National Council of Teacher Education Act, 1993 (for brevity “NCTE Act”) for the purpose of maintenance of standards in Colleges of Education. NCTE Act and the rules and regulations made thereunder occupy the entire field relating to the establishment and administration of Colleges of Education. The recognition, establishment of colleges, the norms providing for infrastructure and institutional facilities, the provision for determining intake capacity, the standards of teaching etc., are all provided under the NCTE Act and the rules made thereunder. Since the fourth respondent, namely, National Council for Teacher Education, represented by its Regional Director, Bangalore, has permitted the petitioner-Institution to function with an intake capacity of 100 students by a letter of Recognition simplicitor, the State Government only has a right to provide mode and method of making admissions under the Capitation Fee Act. Therefore, Rule 5 of the Rules which provides admission into different methodologies with the respective percentages against each methodology is unlawful and without jurisdiction, as it restricts the right of educational institution to make admission of the intake capacity permitted by NCTE. Once the field is occupied by the Central Legislation, the State Government lacks jurisdiction for modifying or conditioning the intake capacity by providing methodologies and their percentages. Prescription of methodologies is not traceable to any legislative Act empowering the State Government to regulate admissions. In the State of Andhra Pradesh, amongst the members of Muslim minority community, few students opt for Mathematics, Physical Sciences and Biological Sciences methodologies, whereas tremendous amount of admission into Social Studies methodology. In the process,

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the petitioner-institution was able to fill up Social Studies methodology and was unable to fill up the vacancies in other methodologies. On representations being made by the minority educational institutions, the State Government, from time to time, permitted them to make admission of minority candidates provided if qualified candidates for a particular methodology are not available, candidates of other methodology may be considered, which itself shows lack of admissions in other methodologies.

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For the year 2006-2007, admissions were being made through Single Window System, wherein all seats were allotted purely on the basis of merit obtained by the students in EDCET. Since students have not obtained admission in all the methodologies, some of the minority institutions made a representation to the 3^rd , 6^th and 7^th respondents, namely, A.P. State Council of Higher Education, represented by it secretary, Hyderabad, Committee to Oversee conduct of CETs by the Association of Private Un-Aide Profession Colleges and Allied Matters, represented by its Member Secretary, Hyderabad and Admission and Fee Regulatory Committee, represented by its Member Secretary, Hyderabad respectively, stating that large number of seats were kept vacant in almost all the methodologies, and earlier they made a representation to the fifth respondent, namely, Convenor, EDCET-AC (SW-II) (Admissions), Hyderabad, to make admission into the remaining vacant seats in minority colleges by filling up the seats with non-minority candidates. The fifth respondent has not agreed to the said request. But the sixth respondent directed the fifth respondent to fill up the remaining unfilled seats with non-minority candidates by following the rules made in G.O.Ms.No.92 dt. 16-11-2006. Since the fifth respondent has not followed the directions issued by the sixth respondent, some of the minority institutions filed WP No.9377/2007. When the said writ petition was pending, fifth respondent conducted counselling for admission into B.Ed., course for the academic year 2006-2007 by filing up the vacant seats with non-minority candidates following the rules as prescribed in G.O.Ms.No.92 dt. 16-11-2006. On such admission, the seventh respondent through its letter No.7/AFRC-RA/2007-401 dt.11-6-2007 issued a show cause notice to the fifth respondent asking him to show cause as to why the admissions made in B.Ed., course for the academic year 2006-2007 should not be cancelled and why all the institutions comprising of Federation of A.P. Minority Educational Institutions, Hyderabad be considered as ineligible for

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admission for the academic year 2007-2008. Meanwhile, the first respondent, Principal Secretary to School Education, vide Memo No.6185/Trg/A1/2007 dt.19-62007 accorded permission for admission of qualified minority candidates in Social Studies Methodology in minority B.Ed., Colleges against the vacant seats in other methodologies. Thereafter, the fifth respondent conducted counselling to all the minority colleges in the vacant seats and allotted candidates under Convenor quota by filling up seats. While so, the seventh respondent issued a show cause notice dt. 13-9-2007 to the fifth respondent as well as concerned minority colleges as to why all the admissions made in respect of non-minority students in violation of the admission procedure should not be cancelled, to which explanations were submitted by the concerned minority colleges. Considering the explanations, 7^th respondent by proceeding vide letter No.7/AFRC-RA/2007/974 dt. 11-10-2007 cancelled the admission of 1770 non-minority candidates admitted into B.Ed., Minority Colleges by the fifth respondent for the academic year 2006-2007 mainly on the ground that the fifth respondent has not furnished the details and has not followed the procedure prescribed under the Rules. Questioning the same, several writ petitions were filed. This court directed the University to accept the examination applications of the students to appear for examination for the admission and the Management should submit an undertaking to the effect that they will not deviate the admission rules and will not repeat such things in future. Accordingly, all the colleges affiliated to Osmania University paid the penalty at Rs.2500/- per candidate as imposed by the Osmania University. In some cases other than Osmania University Colleges, the High Court directed pending further consideration, the results of the students, who have been admitted in excess of the A-category seats into B.Ed., course, be published as it is asserted that they have paid Rs.2500/- per student into the Government Treasury. While so, the first respondent through G.O.Rt.No.295 Education (SE.Trg-1) Department dt. 30-4-2008 levied penalty of Rs.5000/- per seat for deviation in methodology in respect of nonminority candidates and penalty of Rs.25000/- per seat/admission of non-minority candidates in a minority college without the approval of Admission and Fee Regulatory Committee (AFRC) and A.P. State Council of Higher Education (APSCHE) in respect of 43 minority colleges. The same was communicated by the Director of School Education, Hyderabad through proceedings No.4880/N2-1/2008 dt. 19-6-2008. Questioning the same, the present writ petition has been filed

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contending that imposing penalty is violative of right guaranteed under Art. 30 of the Constitution of India. Right to selection of candidates to be admitted into courses is an integral part of right of administration and management. Once approval of NCTE is obtained which fixes intake capacity without providing any methodology of admissions, the State Government has no role and will not have any jurisdiction to fix the methodology. A.P. Education Act does not empower the State Government to fix such methodology disciplines. Thus, imposition of penalties for the alleged deviation in methodologies is unsustainable and ultra vires. Once the Rules empowers the minority educational institutions for deviation in methodologies for admitting the minority candidates, non extension of the same benefit to non-minority students would amount to an invidious discrimination being violative of Art.14 of the Constitution of India, which also infringes the petitioner’s right under Art. 19(1) (g) and Art.30 of the Constitution of India.

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In the common counter affidavit filed on behalf of the third respondent, it was stated that percentages subject-wise viz., Mathematics, Physical Science, Biological Science, Social Studies and English is prescribed based on data supplied by State Council of Education, Research and Training (SCERT) as per the requirement of qualified teachers vis-à-vis the class rooms, or students ratio, subject-wise in the State of Andhra Pradesh. Apart from the same, the said percentages arrived at subject-wise in the impugned GO under Rule 5 (ii) is also approved by the first respondent and also by the Universities in the State of Andhra Pradesh. Rule 5 (ii) of the Rules either supplements or compliments the prescription if any laid down under NCTE Act. The prescription of methodology subject-wise by the first respondent is in fact in consonance with the dicta laid down by the Supreme Court in DR. PREETHI SRIVASTAVA V. STATE OF M.P^[1] and STATE OF TAMIL NADU V. S.V. BRATHEEP^[2] . Prescription of percentage in methodologies subject-wise under the Rules is based on an expert bodies survey recommendation, which is approved by the first respondent and also Universities in the State of Andhra Pradesh. Cancellation of admission of about 1770 non-minority students is the subject matter of dispute in WP No.23050/2007 and batch. As the petitioner-colleges have admitted majority of non-minority students in their colleges without following the triple test laid down by the Supreme Court in P.A. INAMDAR V. STATE OF MAHARASHTRA^[3] ’ ie., merit, transparency and non-exploitative manner, and grossly violated the dicta laid down by the Supreme Court and not

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followed the rules of admission, as a regulatory measure to discipline the colleges, one time penalty has been levied. The petitioner-colleges who are habitually violating the existing rules in one way or the other year after year have in fact paid the penalties levied for the academic year 2003-04, 2004-05 and 2005-06. G.O.Rt. No.295 dt. 30-4-2008 was issued considering the representation made by the Association of Managements of Minority Colleges of Education, Hyderabad dt. 1610-2007 including the petitioner colleges and others for regularizing the admission of 1770 students.

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Sri S.Niranjan Reddy, learned counsel for the petitioners in WP Nos.15895, 15896 and 16645 of 2008 contended that the Central Government in exercise of the legislative powers under Entries 65 and 66 of List I enacted NCTE Act. Section 12 of the NCTE Act prescribes functions of the Council and subsections (a) to (c) of Sec.12 empower the Council to take within its fold the coordination, development of teacher education and maintenance of standards of such education. Once NCTE sanctioned the intake capacity of 100 students, prescribing the methodology and distribution of students to various methodologies amount to encroaching into the field occupied by the Central legislation. So also, condition prescribing intake capacity in the methodology will also amount to reduction of intake capacity or regulating intake capacity. In para 20 of the affidavit filed in support of WP No.15895/2009, it was specifically pleaded by the petitioner that there are few students who are willing to opt for Mathematics, Physical Sciences and Biological Sciences methodologies, which is evident from the admission profile for the previous year, and the colleges are able to fill up social studies methodology ie., 30% of the seats and for other methodologies there are no sufficient number of candidates, therefore colleges are prevented from filling up of seats in the various methodologies as per Rule 5 of the Rules and the same is beyond the power of State Legislature, hence Rule 5 is liable to be struck down. In support of the said condition, reliance is placed on the judgment of the Supreme Court in STATE OF MAHARASHTRA V. SANT DNYANESHWAR

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SHIKSHAN SHASTRA MAHAVIDYALAYA^[4] . He further contended that Sec. 3 of the Capitation Fee Act regulates admission into educational institutions and Sec. 4 is the special provision in respect of minority educational institutions. Under subsection (2) of Section 4, where minority educational instititon intends to admit students not belonging to the concerned minority, suh admission shall be only on

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the basis of the marks obtained in the qualifying examination on the basis of the ranking assigned in the entrance test conducted in the prescribed manner. When the Capitation Fee Act contemplates admission of non-minority students with certain restrictions, proviso to Rule 6 (b)(6) restricts allotment of seats only to the eligible candidates belonging to concerned minority, which is ultra vires the Section 4(2) of the Capitation Fee Act. Proviso to 6(b)(6) if implemented with its rigour it will restrict admission to minority candidates. Even the word ‘minority’ in clause (iii)(b) (6) of the Rules is omitted through G.O.Ms.No.98 Education (SE-Trg-1) Department dt. 6-12-2006 restriction imposed under Rules still continue to operation and the same is liable to be set aside. The impugned Rules made cannot be supplemented as contended by the Government in its counter. When the Capitation Fee Act does not contemplate constitution of a body, and the Capitation Fee Act did not provide standards of education, the Rules issued are not under any statutory power and the same are liable to be struck down. In support of the said contention, reliance is placed on the judgment of the Supreme Court in

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PREETHI SRIVASTAVA (DR) V. STATE OF M.P^[5]

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Sri S.A.K.Mynuddin, learned counsel for the petitioners in W.P.Nos. 14692,16723,16751, 18721,18951,18952,20038 16984 of 2008 while adopting the arguments of Sri S.Niranjan Reddy contended that once the Government relaxed admission in deviation of methodology in memo No.6185/Trg/A1/2007 dt. 19-62007 for the year 2006-2007, issuing G.O.Rt.No.295 dt. 30-4-2008 levying penalty for such deviation is contrary to the relaxation and the same is liable to be set-aside. He further contended that rules issued in G.O.Ms.No.92 dt. 16-11-2006 are not published in the required manner, therefore same will not come into operation. Before levying penalty through G.O.Rt.No.295, no notice has been issued to the petitioner-colleges and the same is in violation of principles of natural justice. Sri Sudesh Anand, learned Government Pleader for Education contended that NCTE only sanctioned seats but not distributed said seats in various branches. Prescription of methodology is as per Andhra Pradesh Colleges of Education (Regulation of Admission into B.Ed., course through Common Entrance Test) Rules, 1989 issued in G.O.Ms.No.154 dt. 27-4-2989 under A.P. Education Act. When NCTE lost sight of distribution of seats except sanctioning intake capacity of 100 seats and permitting the colleges to admit the students. Norms of admissions, which are regulated by the Rules, do not contradict with the occupied field.. To buttress the said submission, reliance is placed on the judgment

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of the Supreme Court in

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UNION OF INDIA V. ALOK

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KUMAR^[6]

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In view of the rival submissions, the points that emerge for consideration in

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this batch of writ petitions are:

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1. Whether sub rules (ii) and (iii) of Rule 5 prescribing methodology and rule 6 (b) (6) restricting admission to the candidates belonging to minority is repugnant to NCTE Act or Capitation Fee Act?

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2. Whether levying of penalty in G.O.Rt.No.294 dt. 30-42008 can be sustainable or not?

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POINTS 1 and 2: Section 12 of the NCTE Act prescribes the functions of

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the Council. Sub-section (a) to (c) of Sec.12 are relevant for the purpose of

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deciding the issue involved in the writ petitions, they read as under:

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12. Functions of the Council .- It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may-

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(a) undertake surveys and studies relating to various aspects of teacher education and publish the result thereof;

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(b) make recommendations to the Central and State Governments, Universities, University Grants Commission and recognized institutions in the matter of preparation of suitable plans and programmes in the field of teacher education; (c) co-ordinate and monitor teacher education and its development in the country;

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Section 4 of the Capitation Fee Act is a Special provision in respect of minority

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educational institutions, which reads as under:

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(1) Notwithstanding anything 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.

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(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.

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The Constitution Bench of the Supreme Court in M.KARUNANIDHI v.

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UNION OF INDIA^[7] while holding that repugnancy may result from the following

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circumstances, namely, 1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. (2). Where however, a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. (3). Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential. (4). Where, however, a law made by the state Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254 (2) of the Constitution. The result of obtaining the assent of the president would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254, laid down the following conditions, which must be satisfied, before any repugnancy can arise:

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1. That there is a clear and direct inconsistency between the Central Act and the State Act.

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2. That such an inconsistency is absolutely irreconcilable.

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3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.

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The Supreme Court after referring to various judgments on the subject laid down

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the following propositions to be applied in the case of this nature:

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1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.

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2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

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3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.

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4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.

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In GOVERNMENT OF ANDHRA PRADESH v. J.B. EDUCATIONAL

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SOCIETY ,^[8] the facts are that the writ petitioners who are private educational institutions filed writ petitions contending that in view of permission obtained under Sec. 10 of the All India Council of Technical Education Act,1987 (for short “AICTE Act”), no permission of the State Government under Sec.20 of the A.P. Education Act,1982 was required as the field is completely covered by AICTE Act. The argument that once the approval was granted by the Council, the State Government cannot refuse permission on the ground that the proposed educational institution may not sub-serve the educational needs of the locality was found favour with the Division Bench of High Court of Andhra Pradesh. On appeal, after considering the legislative powers of the Parliament and the State Legislatures, which are governed by Arts.246 to 255 of Part-II of the Constitution, where A.P. Education Act is repugnant to AICTE Act and after scrutinizing the provisions of both the Acts and after referring to the conditions to be satisfied, as laid down in M.KARUNANIDHI v. UNION OF INDIA (7 supra), and other cases, the Supreme Court while observing that:

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“….the question of repugnancy between the Parliamentary legislation and the state legislation can arise in two ways. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in Concurrent List and there is a conflict. In both the situations, Parliamentary legislation will predominate, in the first, by virtue of the non-obstante clause in Article 246{1), in the second, by reason of article 245 (1 ). Clause (2) of Article 245 deals with a situation where the State legislation having been reserved and having obtained President's ascent prevails in that state; this again is subject to the proviso that the Parliament can again bring a legislation to override even such State legislation.” (para 12)

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allowed the appeal setting side the judgment of the Division Bench of the High Court of Andhra Pradesh holding as under:

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“The educational needs of the locality are to be ascertained and determined by the State. Having regard to the regulations framed under the AICTE Act, the representatives of the State have to be included in the ultimate decision making process and having regard to the provisions of the Act, the writ petitioners would not

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in any way be prejudiced by such provisions in the A. P. Act. Moreover, the decision, if any, taken by the State authorities under Section 20 (3) (a) (i) would be subject to judicial review and we do not think that the State could make any irrational decision about granting permission. Hence, we hold that section 20{3) (a) (i) is not in any way repugnant to Section 10 of AICTE Act and it is constitutionally valid.” (para 21).

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In STATE OF MAHARASHTRA V.SANT DNYANESHWAR

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SHIKSHAN SHASTRA MAHAVIDYALAYA (4 supra) the issue that fell for consideration before the Supreme Court was after parliament enacting NCTE Act, whether it is open for the State Legislature to encroach upon the said field and refuse to issue no objection certificate as a policy decision relying on a State Act or on a policy consideration. A three-Judge Bench of the Supreme Court after referring to Arts.246, 248, 254 of the Constitution of India, Entries 63 to 66 of List I of Schedule VII, Entry II of List II, Entry 25 of List II (Concurrent List) and the provisions of NCTE Act and various judgments of the Supreme Court in St. Johns Teachers Training Institute v. Regional Director, NCTE (2003) 3 SCC 321; Jaya Gokul Educational Trust v. Commr. & Secy. to Govt. Higher Education Deptt (2000) 5 SCC 231; Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of T.N (1996) 3 SCC 15; State of T.N. v. Adhiyaman Educational & Research Institute (1995) 4 SCC 104; Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra (1986) 4 SCC 361) held as under:

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“….So far as co-ordination and determination of standards for higher education or research in scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and State has no power to encroach upon the legislative power of parliament. It is only when the subject is covered by Entry 25 of List III of Schedule vii to the Constitution that there is a concurrent power of Parliament as well as state Legislatures and appropriate Act can be by the State Legislature subject to limitations and restrictions under the Constitution.” (Para 62)

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After referring to the preamble of the NCTE Act, the Supreme Court further held as under:

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“….It is thus clear that the field is fully and completely occupied by an Act of parliament and covered by Entry 66 of List i of Schedule VII. It is, therefore, not open to the State Legislature to encroach upon the said field. Parliament alone could have exercised the power by making appropriate law. In the circumstances, it is not open to state Government to refuse permission relying on a State Act or on 'policy consideration'.” (para 63)

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Entries 63 to 66 of List I of Schedule VII relate to higher education. Entry

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66 reads thus:

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"66. Co-ordination with determination of standards in institutions for higher education or research and scientific and technical intuitions"

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Prior to 42^nd Amendment Act, subject to Entries 63-66 of List I and Entry 25 of List III, ‘Education including Universities’ was the State subject under the Entry 11 of List II, which led to much controversy as to the scope of the State jurisdiction vis-àvis the Union power under Entries 63-66 of List I. This has been obviated by transferring Education entirely to List III of Entry 25 excluding subjects included in Entries 63-66 in List I. Entry 25 of List III after 42^nd Amendment Act reads thus:

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"25. Education, including technical education medical education and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of list I; vocational and technical training of labour. "

¶106

Exercising the legislative power under Entry 66, NCTE Act has been enacted by the Parliament, which deals with teacher’s education, which came into force with effect from 1-7-1995. The scheme of the NCTE Act and the regulations made thereunder have been extensively reproduced from para 29 to 37 by the Supreme Court in the above cited case. The Supreme Court after extensively referring to its earlier judgment in STATE OF T.N. V. ADHIYAMAN EDUCATIONAL & RESEARCH INSTITUTE (1995) 4 SCC 104), wherein the Supreme Court upheld the contention of the petitioners and ruled that the State Legislature could not enforce an Act if it is inconsistent with the Central Act and to the extent of such inconsistency, the Central Act would operate and the State Acts would be inoperative; and in view of law declared in ST. JOHNS TEACHERS TRAINING INSTITUTE V. REGIONAL DIRECTOR, NCTE (2003) 3 SCC 321) and in JAYA GOKUL EDUCATIONAL TRUST V. COMMISSIONER & SECRETARY TO GOVT., HIGHER EDUCATION DEPTT (2000) 5 SCC 231), upheld the judgment of the High Court of Bombay negativing the argument of the Maharashtra that permission could be refused by the State Government on policy consideration.

¶107

In the present case, except contending that once NCTE Act has been enacted by the Parliament and Section 12 particularly, sub-sections (a) to (c) encompass the functions of the Council including method and manner of admission, has not substantiated that any regulations are made under NCTE Act or provisions regulating admission into B.Ed., course, except grant of permission to start a B.Ed., college with an intake capacity of 100 students.

¶108

In T.M.A. PAI FOUNDATION V. STATE OF KARNATAKA^[9] the

¶109

Supreme Court while considering the regulations that can be framed relating to private unaided professional institutions held as under:

¶110

“…..It would, therefore, be permissible for the university or the government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the state/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the state agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other nonprofessional but unaided educational institutions viz., graduation and post graduation non-professional colleges or institutes. (para 68).

¶111

While considering question No.5, namely, Whether the minority's rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students, the Supreme Court held that “a minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.”

¶112

The Supreme Court, in the above case ie., T.M.A. PAI FOUNDATION V. STATE OF KARNATAKA (9 supra), after extensively referring to its earlier observation made in AHMEDABAD XAVIERS COLLEGE SOCIETY V. STATE OF GUJARATH (1975 (1) SCR 173), wherein it was held that “the standards of education are not a part of the management as such. The standard concerns the body politic and is governed by considerations of the advancement of the country and its people. Such regulations do not bear directly upon management although they may indirectly affect it. The State, therefore has the right to regulate the standard of education and allied matters. Minority institutions cannot be permitted to

¶113

fall below the standards of excellence expected of educational institutions. They cannot decline to follow the general pattern of education under the guise of exclusive right of management. While the management must be left to them, they may be compelled to keep in step with others..” and was further held that “..So long as the basic right of minorities to manage educational institution is not taken away, the state is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30 (1 )" held that “…by the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30 (1 ) (para 137). The Supreme Court at para 137 further held as under:

¶114

“….Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down…(para 138)

¶115

In ISLAMIC ACADEMY OF EDUCATION & ANOTHER V. STATE

¶116

OF KARNATAKA^[10] , the Supreme Court clarified that “a minority professional college can admit, in their management quota, a student of their own community/language in preference to a student of another community even though that other student is more meritorious. ……Further if the seats cannot be filled up from members of their community/language, then the other students can be admitted only on the basis of merit based on a common entrance test conducted by government agencies. Justice S.B. Sinha, by a separate judgment after referring to Entry 66 of List I and Entry 25 of List III of the Seventh Schedule of the Constitution of India, which provides for legislative field noticed that various States have enacted laws for regulating admission and prohibiting charging of capitation fee.

¶117

Keeping in view of the above principles we shall now deal with the question whether the impugned rules will amount to discrimination or repugnant to NCTE Act?

¶118

No regulations/rules, as such have been framed under Sec.12 of the NCTE Act in the field of teacher education to regulate admissions, has been pointed out by the learned counsel for the petitioners, but he contends that since it is an occupied field, the Central Government in exercise of powers under NCTE Act

¶119

alone is competent to frame rules regulating admissions and State Government do not have any legislative competence to regulate admissions. Whereas the State Government in exercise of its legislative powers under Entry 25 of List III enacted the Capitation Fee Act. Section 4 of the Act is a special provision in respect of minority educational institution. In exercise of rule making power under Section 25 of the Capitation Fee Act, the impugned rules were framed. Rule 3 of the Rules deals with allotment of seats. Under Rule 3 (i) seats allotted to unaided non-minority and minority Colleges of Education are classified as Category-A seats and Category-B seats. Category-A seats shall be 80% of the sanctioned intake of seats in B.Ed., course in the un-aided non-minority/minority colleges of Education, which shall be filled with eligible candidates on the basis of rank obtained in EDCET/EDCET-AC, as the case may be, following the provisions of Rule 6 and Rules of Reservation laid down in Rule 7. Category-B seats shall be 20% of the total sanctioned intake of seats in B.Ed., course in respect of the un-aided nonminority and minority Colleges of Education, which shall be open for admission to all the eligible candidates on the basis of merit/rank obtained in EDCET/EDCETAC. Rule 6 provides procedure of admission. Rule 6(b) prescribes the procedure to fill up the seats through SW-II-Category-A seats (80%) in unaided Colleges of Education which have opted for EDCET and admission through EDCET-AC window. Proviso to Rule 6 (b) (6) provides that in respect of minority Colleges of Education seats shall be allotted only to the eligible candidates belonging to the concerned minority. Therefore, 80% of seats shall be filled up from among the candidates belonging to the minority communities. Rule 5 provides method of admission, and percentage of candidates to be admitted in each methodology (subject), which shall not exceed the limit prescribed by the Universities/Government from time to time. Fixation of methodology is uniform to all B.Ed., colleges, whether aided / unaided or minority/non-minority. The distribution of seats under various methodologies was based on the data supplied by SCERT as per the requirement of qualified teachers vis-à-vis the class rooms or students ratio, subject wise in the State of Andhra Pradesh, which has been approved by the Universities in the State of Andhra Padesh keeping in view of the need of the State. In the absence of any study made by the Central Government and rules framed keeping in view of the need of the particular area, it is always open for the State Government to distribute the seats. The petitioners-colleges have alone not been

¶120

discriminated by prescribing such methodology. It is uniform in all the Colleges. The petitioners-colleges, which have retained the minority status, necessarily have to fill up 80% of the seats according to the percentage prescribed in each methodology from among the eligible minority students, and have to fill up 20% of the seats from among the minority/non-minority communities. Petitionerscolleges cannot ignore Rule 5 and can admit candidates in derogation thereof from non-minority students. Once the petitioners want to enjoy the special privilege and immunity conferred on the basis of a law, they must strictly abide by it in its entirety. If they proceed to join non-minority students, necessarily they have to lose the minority status. The Supreme Court in T.M.A. PAI FOUNDATION V. STATE OF KARNATAKA (9 supra) and P.A. INAMDAR V. STATE OF MAHARASHTRA (3 supra) held that the minority institutions cannot admit candidates belong to non-minority communities in large numbers and still avail the benefit of immunity of being regulated. Therefore, it is thus obvious, the petitioners-colleges, which have started for imparting general and secular education as minority institutions, they must pre-dominantly admit the students from the concerned minority. In the absence of any regulations/rules framed under NCTE Act contrary to the ruled made under the Capitation Fee Act, there is no repugnancy of the rules to the rules framed under NCTE Act, and repugnancy does not arise as contended by the learned counsel for the petitioners. The Supreme Court in STATE OF TAMIL NADU V. S.V.BRATHEEP (2 supra) held that Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any authority functioning under it. Suffice it is not pointed out the distribution of seats made by the State Government from among various categories under Rule 5 is in any way adverse to the distribution of seats or manner and method in which seats have to be filled up. To decide the repugnancy, it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field, as per the proposition No. 1 laid down by the Supreme Court in M.KARUNANIDHI V. UNION OF INDIA (7 supra), but as per proposition No.3, where the two statues

¶121

occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results. Since the present case does not fall under any of the propositions carved out by the Supreme Court in M.KARUNANIDHI V. UNION OF INDIA (7 supra), we do not see any merit in the contention advanced by the learned counsel that the impugned rules framed by the State Government are repugnant to the provisions of the NCTE Act.

¶122

Proviso to Rule 6 (b) (6) of the Rules can be upheld by invoking the doctrine of pith and substance and can be interpreted provided that in respect of minority colleges of education 80% of the seats shall be allotted to the eligible candidates belonging to the concerned minority community and 20% of the category-B seats shall be filed up by non-minority/minority candidates in each of the methodology prescribed under Rule 5 as per the choice of the minority institutions on the basis of merit. Therefore, after leaving 20% of the seats filled up with nonminority candidates, if A-category seats were filled up with non-minority candidates, such number of non-minority candidates among A-category alone can be taken, for the purpose of collection of penalty imposed by the Government vide G.O.Rt.No.295 dt. 30-4-2008.

¶123

With the above clarification, we dismiss all the writ petitions. There shall be no order as to costs.

¶124

_______________ A. GOPAL REDDY, J

¶125

C.V.RAMULU,J

¶126

Date: 31-1-2011 kmr

¶127

[1] (1999) 7 SCC 120) [2] (2004) 4 SCCC 513 [3] (2005) 6 SCC 537 [4] (2006) 9 SCC 1

¶128

[5] (1999) 7 SCC 120

¶129

[6] (2010) 5 SCC 349 [7] (1979) 3 SCC 431 [8] (2005) 3 SCC 212 [9] 2003 AIR SC 355 [10] (2003) 6 SCC 697

Islamia Colege of Education, Siddipet, Medak v. The Government of a.P., rep by its Secretary

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Islamia Colege of Education, Siddipet, Medak v. The Government of a.P., rep by its Secretary

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