Education – Board of Intermediate Education (BIE) – When the students were automatically passed in the qualifying examination (SSC) in view of prevalence of COVID-19 pandemic, it is incomprehensible as to how the admissions in intermediate will be made on merit basis. It is no doubt that on the basis of marks obtained in internal examinations, ranks will be allotted basing on which admissions will be made. This method is also bereft of logic as there is no common test for all the students for awarding marks in internal examinations and there is no normalization procedure in that regard. Therefore, the impugned notification is liable to be set aside.
It is submitted on behalf of respondents that already about few lakhs of students submitted online applications for admissions in the intermediate course. However, that cannot be a ground to sustain an otherwise lopsided notification. Accordingly, the Writ Petitions are allowed setting aside the impugned notification for online admission 2021-22 issued by the Board of Intermediate Education, A.P. It is directed that for the present Academic Year 2021-22, the existing system of admissions into intermediate stream should be followed. However, this order will not preclude the State Government from making in future, the legislation/rules/regulations on the subject ‘admissions into intermediate stream’ by clearly laying down the policy, keeping in view the corresponding rights of the stakeholders and giving wide and advance publicity.
ICL 2021 (9) AP 950
IN THE HIGH COURT OF ANDHRA PRADESH AT AMRAVATI
HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
Writ Petition Nos.17559, 17344, 17753, 17849, 18336, 18372, 18041, 18225 & 18045 of 2021; 06.09.2021
Dwarapu Siri v. State of Andhra Pradesh
This batch of writ petitions is a sequel to W.P.No.20052 of 2020 and batch. The earlier batch of writ petitions were filed challenging the press release dated 20.10.2020 issued by the Secretary, Board of Intermediate Education, Andhra Pradesh (for short, ‘the BIE’) introducing online mode of admission into two year intermediate courses in general and vocational streams in various colleges for the academic session 2020-21. Those batch of writ petitions mainly targeted the manner in which the new method of admission into intermediate courses was introduced by way of sheer press release. It was inter alia contended in that batch that the new method was introduced hurriedly by issuing urgent press note stating the process of admission would commence from 21.10.2020 and conclude on 29.10.2020 without explaining the reasons for issuing such a hurried press note instead of State Government introducing its intention by way of a policy through a legislation or in the form of proper regulations or guidelines after consulting all stakeholders. It was also contended that the lopsided new method of admissions, curtailed the inherent right of the students to choose the college of their choice to study intermediate and also the right to admission of educational institutions. It was also contended, in the proposed method of admission into intermediate colleges there was nopossibility of evaluating comparative merit of the students because due to the prevalence of COVID-19 pandemic, all the students in the 10th class, were declared as passed by virtue of G.O.Ms.No.34, dated 14.07.2020. Therefore, for allotment of students to different colleges, there is no logical basis.
2. Per contra, learned Additional Advocate General contended, to prevent illegal practices like collection of capitation fee etc. by certain institutions the online system was introduced in the public interest. Wide publicity was also given before introduction of new method. Further multiple options were given to students to choose colleges of their interest by applying through online method.
3. Hearing both sides, this Court in the earlier batch of writ petitions agreed with the argument of petitioners and allowed the batch of writ petitions with the following direction: “For this academic year, it is directed that existing system of admission should be followed. It is left open to the State to frame clear / appropriate rules and regulations and thereafter introduce online method of admission, if it so desires, from the next academic year. Wide publicity and adequate advance notice must also be given for the same before it is introduced. The effort made by the State for the degree courses is supported by a G.O. with rules / regulations. Follow up action like helpline access; online admission committees etc., are formed in all the districts etc., such action is not there in the present case.”
4. While so, the admissions into intermediate studies for the academic year 2021-22 is concerned, the BIE, pursuant to the A.P. Government’s Memo No.1477968/1E-A2/2021-1 dated 10.08.2021 ratifying the BIE’s draft Notification and instructing it to take further action, issued the Notification for online admissions 2021-22 in respectof two year intermediate course in general and vocational streams through online mode in the Government / private aided / private unaided / cooperative, incentive junior colleges and composite degree colleges in the State.
(a) The Notification inter alia reads that the admission into two year intermediate courses will be taken up through online mode, for which the eligibility criteria is to pass 10th class examination (SSC) conducted by the Board of Secondary Education, A.P. or equivalent examination, and the order of the merit of the candidates shall be on the basis of grade/marks secured in each subject in the qualifying examination. A flow chart is provided in the notification for the candidates to follow online admission process. The notification was issued by the Secretary of BIE with the approval of the Competent Authority.
Challenging the above notification issued by the BIE, the above batch of writ petitions is filed.
5. W.P.No.17559/2021 is filed by Central Andhra Junior College Managements Association, whereas the other writ petitions are filed by the students.
6. The BIE filed common counter in W.P.No.17559/2021.
7. Heard arguments of learned senior counsel Sri B.Adinarayana Rao representing Sri Srinivasa Rao Bodduluri, counsel for petitioner inW.P.No.17559/2021; learned senior counsel Sri Vedula Venkataramana representing Sri M.Sri Vijay, counsel for petitioner in W.P.No.17344/2021; Sri Nalluri Madhava Rao, counsel for petitioners in W.P.Nos.17753, 17849 & 18041 of 2021; Sri A.S.K.S. Bhargav, counsel for petitioner in W.P.No.18336/2021; Sri G.Sai Narayana Rao, counsel for petitioner in W.P.No.18372/2021; Sri Medamalli Balaji, counsel for petitioners in W.P.No.18225/2021; Sri P.Rajasekhar, counsel for petitioners in W.P.No.18045/2021, and Sri Dushyant Dave, learned Senior Counsel representing Smt. Elipe Shantha Sree, Standing Counsel for the BIE; learned Government Pleader for School Education representing the respondents.
8. Impugning the notification, Sri B.Adinarayana Rao addressed the following arguments:
(i) Firstly, in the State of A.P. there are 2679 junior colleges functioning apart from few vocational and other special colleges. Of them 470 are Government colleges, 180 are aided junior colleges and 2029 are unaided junior colleges. The total number of seats in 1st year intermediate available in all the colleges is 9,43,008. In the Academic Year 2021-22, 6,24,367 students who studied SSC were all passed by virtue of the order of the Government due to the prevalence of COVID- 19 pandemic. Thus, there is a surplus of 3,18,641 seats and as such there can be no apprehension that the private colleges may encash the demand and collect exorbitant fees from the students. As such there is no need to introduce any novel method of admission such as online admission forintermediate studies. He would submit that all along, the junior colleges including private colleges used to conduct admissions by themselves by giving due consideration to merit, rule of reservation and by charging only reasonable fee. Considering the demand and supply, there was absolutely no need for interference by the Government or BIE with the conventional method of admission being followed in all these years. However, the BIE hurriedly issued a press note dated 26.07.2021 stating that admissions for intermediate studies will be held in online mode after issuing notification. The said press note was followed by a circular dated 30.07.2021 inviting the participation in Zoom meeting. As there were lakhs of stakeholders, the said Zoom meeting was not practically possible and hence, the gathering of opinion was only an eyewash. Therefore, the justification for change of policy and wide publicity inviting views of the stakeholders as perspicuously predicated in the earlier judgment are woefully absent in the present instance and therefore, the notification is liable to be set aside for violation of the directions earlier given.
(ii) Secondly, questioning the legal validity of the notification, he argued, the BIE claimed that it exercised the power conferred under Section-99 (1)(a) and 99 (1)(b) (xxv) of the A.P. Education Act, 1982 to issue the notification. Learned Senior Counsel pointed out that the said provision gives power to the Government to make rules to carry out all or any of the purposes of the said Act including regulation for admission into educational institutions. It is unknown how the BIE usurped the power of Government and issued notification. Since notification issued by BIE is not backed by the statutory power, same is liable to be set aside on this ground alone.
(iii) Thirdly, learned Senior Counsel argued that the BIE claimed power under Rule 14(7) of the A.P. Education Institutions (Establishment, Recognition, Administration and Control of Institutions of Higher Education) Rules, 1987 (vide G.O.Ms.No.29, Education (Rules), 05.02.1987) (for short “A.P. Education Rules, 1987”). Referring to Rule 14(7) he argued that the said rule only prescribes that the admission of students shall be as per the Rules of admission prescribed by the Government / BIE and while making admissions rule of reservation shall be followed and the Principal will be liable for violations. Thus, the said rule does not explicitly provide for the exact manner as to how admissions ought to be made and there is also no mention about online admission procedure, rightly because by then the internet was not invented and popularized and therefore, the rules cannot be expected to envisage about online mode of admission. He thus argued that the said rule is at best an imposition of stipulation on institutions during the admissions and it cannot be taken as a source of power of BIE to make APOASIS guidelines.
(iv) Thirdly, referring to relevant laws in vogue in the State of Andhra Pradesh on the subject education, learned Senior counsel would argue that Section-99 of the A.P. Education Act, 1982 do not confer thepower on BIE to take up online admissions for intermediate studies, rather the said section gives rule making power to the State Government.
(v) Referring to Sections 9 and 12 of the A.P. Intermediate Education Act, 1971 (for short “A.P. Act, 1971”) he would argue that Section-9 confers certain powers on BIE as enumerated in the said Section. However, those powers do not comprehend the power to admission in intermediate studies i.e., allotment of students to different colleges by its own. Similarly, Section-12 confers power on BIE to make regulations with the prior approval of the Government to carry out the purpose of the said Act. Those regulation making powers do not include the subject i.e., BIE’s power to admit students in different colleges through online mode. He argued that at best the BIE may submit its views in the form of a report to the Government concerning to intermediate education in the State including the mode of admissions to intermediate studies. However, A.P. Act, 1971 do not confer any express power on BIE to take up the admissions by itself.
(vi) Then referring to the A.P Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983, learned Senior Counsel would argue that the said Act alone through Section- 15 gives power to the Government to make rules regulating the admissions. However, so far no rules were framed by the Government as far as intermediate education is concerned. He would further argue that as per Section-3 of the said Act, subject to the rules that may be made in this behalf, admission into educational institutions shall beeither on the basis of the 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. If the Government intends to regulate the admission into intermediate studies through this Act, it has to follow Section-3 and accept the marks obtained by the students in the qualifying examination i.e., 10th class or on the ranks assigned in the entrance test to allocate the seats. Admittedly, no common entrance test was conducted and due to COVID-19 pandemic, all the students of the 10th class were passed by the Government. Therefore, there is no possibility to decide the merit of the students for allotment of seats. Contrary to the stipulation in Section-3, APOASIS guidelines say that on the basis of the marks given by the respective schools to their students, online admissions will be made which criteria is a direct affront on the legal provision.
(vii) Nextly, referring to the A.P. School Education Regulatory and Monitoring Commission Act, 2019, learned Senior Counsel argued that the said Act provided for constitution of a Commission to take steps for ensuring coordinated and integrated development of school education in the State. Under Section-9, the Commission was given power to take steps to ensure the standards of educational institutions including admissions in accordance with the guidelines issued by the Centre or State Governments from time to time. The Act was amended to bring in the intermediate education and junior colleges into the frame work of the Act. Though the monitoring commission has been constituted andfunctioning, as of now the Commission is yet to make any recommendations regarding the admissions into intermediate course.
Learned Senior Counsel thus argued that none of the wide spectrum of laws gave any power or authority exclusively to BIE to take up the admissions into intermediate studies through online method by itself. Such a power is vested under relevant laws upon the Government either to enact a law or make rules and regulations on the aspect of admissions into the intermediate studies subject to the rights of students and private institutions. Since the impugned notification is devoid of statutory bolster and a direct affront on the fundamental rights of the students and private unaided educational institutions, the same is liable to be quashed.
9. In the same lines, learned senior counsel Sri Vedula Venkata Ramana in W.P.No.17344 of 2021 argued that the impugned notification will not sustain in the eye of law since, except the State, the BIE is not clothed with any statutory powers to regulate the admissions into intermediate studies by online method. The State Government is concerned, if it proposes to introduce any such method, it shall lay down the policy mentioning the objectives it sought to achieve through the said policy and the power it drawn from any statute to announce and execute the said policy. Further, such policy shall be issued in the form of a legislation or rules or regulations and pronounced in the name of the Government by the Governor. All these vital procedural protocols are totally absent in this case and hence, on this ground alone the impugned notification is liable to be set aside. In this regard he placed reliance on P.H. Paul Manoj Pandian v. P. Veldurai, (2011) 5 SCC 214 = (2011) 2 SCC (Civ) 681, 2011 SCC OnLine SC 623.
(a) Nextly he argued that for another reason also the notification falls to ground, inasmuch as, in earlier batch of writ petitions, this Court gave liberty to the State Government to frame clear/appropriate rules and regulations and thereafter to introduce online method of admission if it so desires from the next academic year. Emphasizing the word “State”, he argued that the Court gave such a liberty only to the State Government and by no stretch of imagination, the BIE can draw any power to issue notification in this regard. He further argued, even the State also, while lying down the policy cannot usurp the fundamental rights of students to choose their own colleges and institutions of their right to admit the students. It can only lay down broader guidelines but cannot take the admissions unto itself.
Other petitioners adopted the above arguments.
10. In oppugnation, learned Senior Counsel Sri Dushyant Dave, representing BIE argued that the COVID-19 pandemic, which has spread perhaps all over the globe, has not only taken precious lives of the world population but also posed unforeseen challenges to mankind. While the brunt of its blow was massive on the medical field, economy, transportation, industry, banking sector, tourism etc., its lethality was no less on the education too. For fear of rapid spread of a deadly virus, educational institutions were closed, examinations were postponed and ultimately cancelled throughout the country. The only silver lining was that tutelage was conducted in online mode. Since the COVID-19 disease was not totally eradicated but only mitigated, thanks to vaccination, the State Government of A.P. following the dictum “extraordinary challenges require extraordinary solutions”, invented the method of online admissions into the intermediate studies for the Academic Year 2021-22 keeping in view the safety of the students and parents, who otherwise, have to physically run around different colleges in the State to fetch seats unmindful of contacting the deadly disease.
Learned senior counsel reiterated that with the said avowed object, the State has laid down the noble policy but not before conducting much exercise. The State Government have constituted a High power committee consisting of about 10 members who are experts in the field of education headed by a Chairperson of retired IAS cadre to submit its report on the procedure needs to be adopted to award grades to the 10th class students for declaration of the results of SSC examinations 2021 due to cancelation of public examinations. The Committee suggested that basing on the formative assessment marks and other factors, grades could be given. Accordingly, grades were fixed and 10th class students were passed. Basing on those grades, the Government now seeks to allot seats in the intermediate studies through online mode of admissions.
Thus, in the larger public interest and to bring transparency, learned senior counsel would submit, the Government have introduced thepolicy of online admissions for intermediate course. The BIE issued notification basing on the directions of the State Government. The State derived the power under the provisions of the Intermediate Education Act, 1971, the A.P. Education Act, 1982 etc. Therefore, the policy decision of the State cannot be reviewed under writ jurisdiction. To buttress his point that writ jurisdiction will not be aimed against policy decisions of the State, he placed reliance on following decisions:
2) Rai Sahib Ram Jawaya Kapur v. The State of Punjab,  2 SCR 225 = MANU/SC/0011/1955, AIR 1955 SC 549
3) Vasavi Engineering College Parents Association v. State of Telangana, (2019) 7 SCC 172 = MANU/SC/0862/2019, AIR 2019 SC 4731.
4) The State of Maharaashtra v. Lok Shikshan Sansatha, 1971 (2) SCC 410
5) State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117
6) Academy of Nutrition Improvement v. Union of India, (2011) 8 SCC 274
7) State of U.P. v. D.K.Singh, AIR 1987 SC 190
8) Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, 1984 (4) SCC 27
He thus prayed to dismiss the batch of writ petitions.
11. The point arises for consideration is:
Whether the Notification dated 10.08.2021 issued by the BIE/4th respondent styled as “Andhra Pradesh Online Admission System for Intermediate Stream (APOASIS) – 2021-22” can be treated as the policy decision of the Andhra Pradesh State Government and is valid in the eye of law?
I. POLICY DECISION OF EXECUTIVE – SCOPE OF JUDICIAL REVIEW
12. While it is the contention of the petitioners that the BIE which is only one of the organs of Department of Education of Andhra Pradesh Government but not the Government by itself, has, without backing of statutory power of relevant laws, following a press note, issued impugned notification introducing online mode of admissions into intermediate stream in utter violation of governing laws, the contra argument on behalf of the respondents is that the impugned notification is an outcome of directions issued by the State Government to BIE for public purpose to safeguard the health of the students and their parents from exposing themselves to the deadly Corona virus while rushing to different colleges for intermediate admissions and hence, the notification is the policy decision of the State Government and same is not amenable to judicial review.
13. The issue of Court’s judicial review on administrative actions is no more res integra, as, cardinal principles have been enunciated on judicial review in WEDNESBURY’s case. In the case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation,  1 KB 223 the King’s Bench of Supreme Court of Judicature has postulated three principles when judicial review can be exercised against administrative actions. The plaintiff in that case is a Cinema theatre in Wednesbury Corporation who sought to obtain from the Court a declaration that the condition imposed by the defendant Corporation while issuing licence for Sunday Performances in the plaintiff’s cinema theatre to the effect that no children under the age of 15 years shall be admitted to any entertainment, whether accompanied by an adult or not was ultra vires.
The action was dismissed by the lower Court and the plaintiff went to the Supreme Court. Upholding the discretionary power of the Wednesbury Corporation, the Supreme Court held that when the statute gave discretion to an administrator to take a decision, the scope of the judicial review would remain limited. It was observed that the interference was not permissible unless one or other of following conditions were satisfied namely (1) order was contrary to law or (2) relevant factors were not considered or (3) irrelevant factors were considered or (4) the decision was one which no reasonable person could have taken.
14. The above principles were consistently followed in U.K and since the India has adopted Anglo-Saxon jurisprudence, this Country also assimilated those principles into its administrative law. It should also be kept in mind that in 1983, Lord Diplock in Council for Civil Services Unions v. Minister for Civil Services, 1983 (1) AC 768 (called the GCHQ case) summarized the Wednesbury principles as “illegality, procedural irregularity and irrationality”. He opined that “proportionality” may serve as the additional principle in future. The Wednesbury principles and the additional principle of doctrine of proportionality were well delineated in Union of India v. G. Ganayutham (Dead) by Lrs; AIR 1997 SC 3387 = MANU/SC/0834/1997 and Om Kumar and ors. v. Union of India, AIR 2000 SC 3689 = MANU/SC/0704/2000.
In the subsequent years, when the executive actions, be in taking policy decisions or entering into contracts, or taking disciplinary actions were challenged, the constitutional Courts in this country invariably tested the validity of those decisions on the touchstone of Wednesbury principles.
15. To quote a few, in Sterling Computers Limited v. M & N Publications Limited, (1993) 1 SCC 445 = MANU/SC/0439/1993 on judicial review against Government contracts, the Apex Court observed that in the matter of contracts liberty to assess the overall situation for the purpose of taking decisions has to be given to the authorities. If the decision is bonafide and not arbitrary or whimsical, they need to be upheld on the principle laid down by Justice Holmes that “Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of ‘play in the joints’ to the executive.” Their action however has to be tested in the light of Article 14 of the Constitution.
(a) In Federation of Railway Officers Association v. Union of India, MANU/SC/0231/2003 = AIR 2003 SC 1344 it has been held by the Apex Court that on matters effecting policy and requiring technical expertise, Court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the constitution and the laws or arbitrary or irrational or abuse of the power, the Court will not interfere.
(b) In H.B.Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. M/s. Gopinath & Sons, 1992 Supp (2) SCC 312 it was observed by the Apex Court that judicial review is not directed against the decision but is confined to decision making process. It is not an appeal from a decision but a review of the manner in which the decision is made.
16. In the decisions cited by Sri Dushyant Dave, learned Senior Counsel for the BIE also, above proposition of law was reiterated.
(a) In Vasavi Engineering College’s case (3 supra), the Apex Court observed that the Court in the garb of judicial review, cannot usurp the jurisdiction of decision maker and make decision itself.
(b) In State of U.P. v. D.K.Singh’s case (7 supra), the Apex Court held that the question whether the course of study in Post Graduate Medical institution should commence in January or July of a year is not the concern of the Court as it depends on various factors to be considered by concerned authorities.
(c) In the State of Maharashtra’s case (4 supra), the order of Deputy Director of Education rejecting the application for opening new schools was challenged and allowed by High Court. In the appeal, the Apex Court setting aside the said order held that so long as there is no violation of any fundamental right or the principles of natural justice it was not for the High Court to lay down the policy that should be adopted by the education authorities in granting permission for starting schools.
(d) In Maharashtra State Board’s case (8 supra), in exercise of the powers conferred by Section 36 of the Maharashtra Secondary and Higher Secondary Board’s Act, the State Board has framed the Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977. As per Regulation 104, the Board held that the candidate can apply for verification of the marks but no revaluation of answer books or discloser or inspection of the answer books can be made. When the same was challenged, the High Court of Bombay upheld the challenge but the Apex Court held that the regulation was well within the powers of the Board.
(e) In State of Punjab’ case (5 supra), the Supreme Court held that the change of policy effected by the Government in respect of reimbursement of medical expenses to the employees is beyond the pale of judicial review because the change of policy was on account of financial constraints of the State.
(f) In Academy of Nutrition Improvement’s case (6 supra), in the matters concerning to Science of Medicine where the Courts are not equipped to resolve technical issues, scope of judicial review is not there.
The above jurisprudence on scope of judicial review against executive actions was emerged from Wednesbury’s principles and refined in due course. There is absolutely no demur or confrontation with the above principles. However, the prime issue in this writ petition is whether the impugned notification issued by the BIE can be treated as the policy decision of the State Government or not. If the answer is in negative, it has then to be tested, whether BIE has statutory authority to issue notification on its own.
II. THE IMPUGNED NOTIFICATION – POLICY DECISION OF THE EXECUTIVE GOVERNMENT OR FIAT OF BIE – ITS LEGAL VALIDITY
17. The executive powers and functions of a Government were delineated by the Hon’ble Apex Court in Rai Sahib Ram Jawaya Kapur’s case (2 supra) observed thus:
“14. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.
15. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up.
Our constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.
The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.” Thus, as can be seen, the residual governmental functions remain after legislative and judicial functions which are myriad, can be called as executive functions. Facilitation of education to the citizens anddetermination of policies in that regard also can be said to be executive functions of an elected Government. As per scheme of the Constitution, Article-154 declare that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution of India, whereas Article 163 says that there shall be council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions. Then, Article-166 proclaims that all the executive actions of the Government of a State shall be expressed to be taken in the name of the Governor. Thus a conjunctive study would make us know that the Governor who is the executive Head of the State shall function with the aid and advice of council of Ministers and all the executive functions shall be expressed to be taken in the name of the Governor. This aspect has been reiterated by the Hon’ble Apex Court in Samsher Singh v. State of Punjab, AIR 1974 SC 2192 = MANU/SC/0073/1974 = (1974) 2 SCC 831 and observed thus:
“156. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal Constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations” (a) Be that it may, in reality the council of Ministers will lay down the policies either in the form of legislations or rules or regulations and get the assent of the Governor. In other words, an elected Government discharges all the executive functions in the name of the Governor.
18. In the above context, when the impugned notification is scrutinised, it is styled as “Notification for Online Admissions 2021-22” said to be issued by the Secretary in the name of Board of Intermediate Education, Andhra Pradesh with the approval of Competent Authority.
This notification, as stated supra, introduces online admission system for intermediate stream. ‘Competent Authority’ means that authority as defined in Section 2(12) of the Andhra Pradesh Education Act, 1982.
On perusal, one cannot convincingly say that the subject notification was issued by the Government of Andhra Pradesh as it does not contain the requisite characteristics – firstly, it has not emanated from the office of Ministry of Education laying a policy; secondly, it is neither in the form of a legislation nor a rule or regulation; thirdly and most importantly, the notification was not expressed to be taken in the name of the Governor, rather, it was issued by the Secretary of BIE with the approval of Competent Authority defined under the Education Act. Therefore, I have no hesitation to hold that the impugned notification was issued only by the BIE in its own assumptive power. Hence, its legal validity has to be tested.
III. DELEGATION OF POWERS TO BIE – WHETHER VALID
19. Referring to Memo No.1477968/IE-A2/2021-1, dt: 10.08.2021, it is argued by the respondents that under Section-99 (1)(a)(xxv) of A.P. Education Act, the Government have power to make rules to carry out the purpose of the said Act and the Government and in this case, theGovernment have delegated the said rule making power to the BIE and therefore, the impugned notification is legally valid.
(a) Section-99 (1)(a)(xxv) reads thus:
“99. Power of Government to make rules:- (1)(a) The Government may by notification make rules to carry out all or any of the purposes of this Act.
(xxv) the regulation for admission into educational institutions of pupils for the academic course, private study and other special courses and the attendance thereat;”
The above provision would no doubt show that the Government have power to make rules regulating for admission into educational institutions. The definitions of terms ‘educational institution’ under Section 2(18) and ‘college’ under Section 2(11) would cumulatively show that junior colleges recognized by or affiliated to A.P Board of Intermediate Education will also come under the domain of educational institutions.
(b) The above Memo No.1477968/IE-A2/2021-1, dt:10.08.02021 would depict, as if, the Principal Secretary to Government issued the said memo stating that the Government have examined and approved the draft notification for admission of the students into two year intermediate course through online mode and therefore, the Secretary, BIE can take further necessary action in the matter. It is claimed that pursuant to such delegation, the impugned notification dated 10.08.2021 was issued by BIE by specifically referring in the notification that it was issued by exercising the power conferred under Section-99 of the A.P. Education Act, 1982. To this extent there is no demur.
(c) However, it should be noted that one of the prime contentions of the petitioners is that right to pursue in a college of the choice of the students is their fundamental right and so also right to carry on trade or business is the fundamental right of educational institutions guaranteed under Article 19(1)(g) of Constitution and such rights cannot be taken away by virtue of the notification. It is also their argument that in the impugned notification the Government have not laid down any policy as to why such a notification was brought forth and further, the notification is silent as to how the rights of the petitioners are balanced or protected.
It is also their contention that when it matters effecting the fundamental rights of third parties, the State Government has to come up with a legislation or rule or regulation with clear cut policy and balancing the rights and interests of all the stakeholders. Abdicating such pious legislative obligation, the State cannot delegate its power to its agency.
20. I find considerable force in the above argument of the petitioners. Generally, there is a presumption in favour of the constitutionality of delegated legislation and it is only when there is a clear violation of constitutional provision or of the parent statute, the Court would declare it to be unconstitutional. (vide Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat17). Through Section 99 of the Education Act, no doubt the legislature has delegated upon the Government the power to make rules on different subjects enumerated in that Section. One of such subjects on which rules could be made is the ‘regulation for admission 17 MANU/SC/1246/2008 = AIR 2008 SC 1892into educational institutions’. However, one cannot even remotely presume that the delegatee under the garb of delegation can make rules which militate against the constitution or other laws. In other words, it is expected, the rules framed would sub-serve the purpose of the parent Act and do not thwart the other statutes and constitution. Viewing in that angle when Chapter VI of the Education Act is perused, we can understand that establishment of educational institutions is one of the purposes of the Act. Section 18 says that the Government in order to provide adequate facilities for imparting various types of education in the State, establish and maintain the educational institutions and also permit any local authority or a private body of persons to establish educational institutions and maintain them. Section 20 lays down the method of granting permission for establishment of educational institutions. Thus, the parent Act i.e., A.P. Education Act itself, apart from Article 19(1)(g) of the Constitution, recognized the right of private bodies to establish educational institutions. So, when rules are made in exercise of the power conferred under Section 99, the Government have to carefully consider whether the rights of the stakeholders are in any way affected. Perhaps, since the rights of third parties are involved, while granting the rule making power to Government, the legislature ordained through Section 99(3) that immediately after the rules were made and notification was issued, the same shall be laid before house of the State legislature. So, having regard to the power and responsibility couched together in Section 99, I am of the considered view that the executive Government who is the delegatee, itself should make rules by laying clear-cut policy showing the objective sought to be achieved through the concerned rules and manifesting how a balance has been struck among the rights of different stakeholders, instead of making a sub-delegation in favour of BIE by abdicating its pious obligation.
Further, in the common order in W.P.No.20052/2020 & batch, a learned Judge of this Court while observing that the rationale for the change should be justified and clearly visible else it should be termed as arbitrary, left open to the State to frame clear / appropriate rules and regulations and thereafter introduce online method of admissions, if it so desires, from the next Academic Year, by giving wide publicity and advance notice. In that view also the State Government cannot bye-pass its responsibility and simply issue a Memo approving the draft prepared by the BIE and direct its Secretary to take up further necessary action which amounts to truancy. There the sub-delegation is legally unsustainable and non-est.
IV. WHETHER BIE HAS INDEPENDENT STATUTORY POWER:
21. Then the BIE claims to draw power under Rule 14(7) of the A.P. Educational Institutions (Establishment, Recognizing, Administration and Control of Institutions of Higher Education) Rules, 1987. The said Rule says that the admission of students into various courses shall be as per the rules of admission prescribed by the government / Board of Intermediate Education / University concerned from time to time andwhile making admission, the rule of reservation shall be scrupulously followed and the intake of students shall not exceed the prescribed limits of strength. The Principal of institution shall be personally held responsible for violation of rules of admission. As argued by the petitioners, the said Rule mainly says that the admission of students shall be as per the Rules of admission and it is more an imposition of stipulation on institutions during the admission but it cannot be treated as a source of power by BIE to make rules. Even assuming that it can frame rules of admission by virtue of Rule 14(7), still it has to lay a policy divulging the objective sought to be achieved and how the interest of different stakeholders is safeguarded etc. In the impugned notification, we do not find any policy or the object with which the said notification was issued much less discussing about method of safeguarding the rights of the stakeholders. It is no doubt learned Senior Counsel Sri Dushyant Dave argued that the purpose of issuing notification is to safeguard the health of students and their parents from exposing to Corona virus while rushing to different colleges for admission. I am afraid the purpose and objective must be spelt out in the notification but it cannot be supplemented subsequently. In this regard it is apposite to ruminate the observation of Justice V.R.Krishna Iyer in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, MANU/SC/0209/1977 = AIR 1978 SC 851.
“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji A.I.T. 1952 S.C. 16.
“Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older: A Caveat.”
22. Thus, to sum up, the impugned notification cannot be treated as delegation of power and authority by the executive Government to BIE to frame rules, rather the notification is an outcome of BIE’s order. The notification is not sustainable in the eye of law since it has no statutory back up; not divulged the objective sought to be achieved and not addressed the corresponding rights of the stakeholders. Further, as rightly pointed out by the petitioners, when the students were automatically passed in the qualifying examination (SSC) in view of prevalence of COVID-19 pandemic, it is incomprehensible as to how the admissions in intermediate will be made on merit basis. It is no doubt submitted on behalf of the respondents that on the basis of marks obtained in internal examinations, ranks will be allotted basing on which admissions will be made. This method is also bereft of logic as there is no common test for all the students for awarding marks in internal examinations and there is no normalization procedure in that regard. Therefore, the impugned notification is liable to be set aside. It is submitted on behalf of respondents that already about few lakhs of students submitted online applications for admissions in the intermediate course. However, that cannot be a ground to sustain an otherwise lopsided notification.
23. Accordingly, the Writ Petitions are allowed setting aside the impugned notification for online admission 2021-22 issued by the Board of Intermediate Education, A.P. It is directed that for the present Academic Year 2021-22, the existing system of admissions into intermediate stream should be followed. However, this order will not preclude the State Government from making in future, the legislation/rules/regulations on the subject ‘admissions into intermediate stream’ by clearly laying down the policy, keeping in view the corresponding rights of the stakeholders and giving wide and advance publicity. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.