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ANDHRA PRADESH HIGH COURT AT AMARAVATHI
M. Satyanarayana Murthy, J.
Satyasai Degree College - Appellant
Versus
State of Andhra Pradesh - Respondent
Writ Petition No. 1327 of 2021, 2210 of 2021, 2629 of 2021
Decided On : 07-05-2021
The Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (State Act No.5 of 1983) was not adopted after bifurcation of Andhra Pradesh by specific regulation, thereby the question of fixing fee for under Graduate courses in the private aided colleges by respondent No.2 is illegal.
Fact of the Case:
The petitioners, private unaided under-graduate colleges, challenged the G.O.Ms.No.1 dated 08.01.2021 issued by the Government fixing fee structure for under-graduate (UG) degree courses in the private unaided degree colleges in the State of Andhra Pradesh for the block period 2020-21 to 2022-23. The petitioners contended that the impugned Government order was issued in exercise of power under Section 7 of the A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (Act No.5 of 1983), which was not in force in the State of Andhra Pradesh after its bifurcation from the State of Telangana. The petitioners also contended that the impugned Government order was violative of Article 14 of the Constitution of India as it categorized the private unaided degree colleges into three categories and fixed the fee structure for each category without any rational basis.
Finding of the Court:
The Court held that the impugned Government order was illegal and arbitrary as it was issued in exercise of power under Section 7 of the A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (Act No.5 of 1983), which was not in force in the State of Andhra Pradesh after its bifurcation from the State of Telangana. The Court also held that the impugned Government order was violative of Article 14 of the Constitution of India as it categorized the private unaided degree colleges into three categories and fixed the fee structure for each category without any rational basis.
Issues: 1. Whether the impugned Government order was issued in exercise of power under Section 7 of the A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (Act No.5 of 1983), which was not in force in the State of Andhra Pradesh after its bifurcation from the State of Telangana? 2. Whether the impugned Government order was violative of Article 14 of the Constitution of India as it categorized the private unaided degree colleges into three categories and fixed the fee structure for each category without any rational basis?
Ratio Decidendi: The Court held that the impugned Government order was illegal and arbitrary as it was issued in exercise of power under Section 7 of the A.P. Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (Act No.5 of 1983), which was not in force in the State of Andhra Pradesh after its bifurcation from the State of Telangana. The Court also held that the impugned Government order was violative of Article 14 of the Constitution of India as it categorized the private unaided degree colleges into three categories and fixed the fee structure for each category without any rational basis.
Final Decision: The Court allowed the writ petitions and quashed the impugned Government order to the extent of applicability to the petitioners. The Court also directed respondent No.2 to issue intimation calling for information in 21 schedules including the proposed fee structure for various courses and on submission of the same, respondent No.2 shall afford an opportunity strictly adhering to clause (3) of Rule 8 of Rules 2019 by issuing appropriate intimation. Till finalization of fixation of fee for various courses in the petitioners' institutions, the petitioners may be permitted to collect provisional fee for various courses from the students subject to fixation of fee by respondent No.2 strictly adhering to Rule 8 of the Rules 2019.
JUDGMENT
M.Satyanarayana Murthy, J. - All the three petitions are filed under Article 226 of the Constitution of India to issue a Writ of Mandamus declaring the action of respondent No.1 in issuing G.O.Ms.No.1 dated 08.01.2021 as illegal, arbitrary and issue a Writ of Certiorari and quash the G.O.Ms.No.1 dated 08.01.2021 relating to the fixation of fee structure for under-graduate degree courses in the private unaided degree colleges in the State of Andhra Pradesh for the block period 2020-21 to 2022-23 and direct the respondents not to interfere with the right of the petitioners to admit students into the under-graduation courses as per the fee structure which is commensurate with the infrastructure and faculty possessed by the respective colleges.
2. As the facts in all these petitions are identical and the respondents filed common counter, I find that it is expedient to decide all these petitions by common order treating the Writ Petition No.1327 of 2021 as leading case.
3. The petitioner in W.P.No.1327 of 2021 is a private unaided under-graduate college situated at Srikakulam, conducting various courses such as B.A., B.Com. and B.Sc, and it has been functional for the last five years as it was established in the year 2016, affiliated to Dr. Ambedkar University, Srikakulam.
4. On 08.01.2021 the Government issued G.O. (un-numbered), by which respondent No.2 - Commission has fixed the fee structure for the under-graduate (UG) degree courses in the private unaided degree colleges in the State, for the block period 2020-21 to 2022-23. The State purportedly issued the said Government Order in exercise of the powers under Section 7 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (State Act No.5 of 1983) by which the State Government has notified the fee for the said block period.
5. The State issued G.O.Ms.No.1 on 08.01.2021 arbitrarily without jurisdiction. Hence, the petitioners questioned the same on the following grounds.
(b) Respondent No.1 has not made/enacted any legislation adapting Act No.5 of 1983 or modifying the said Act. Hence by operation of the provisions of A.P. Reorganization Act, 2014, the erstwhile Act No.5 of 1983 was ceased to operate. Hence the impugned Government order is bereft of any legal sanctity/statutory basis and hence the same is liable to be struck down.
(c) It is settled law that an executive order of the State is traceable to Article 162 of the Constitution of India. As per the said Article, the executive power of the State is coextensive with its legislative power and not beyond. Thus the executive fiat of the State cannot have larger scope and amplitude than a legislation which has to be correlated to the legislative fields enumerated by list - II and List - III of the 7th Schedule of the Constitution of India. In so far as under graduate courses are concerned, they cannot be construed as professional courses unlike Med
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