(1.) In this batch of writ petitions the constitutional validity- of clause III in para No.2 of G.O. Ms. No-256, Education (EC-2) Department, dated 17-11-1993, as reiterated in clause (c) of para No.4 of G.O. Ms. No.379, Education (EC-2) Department, dated 9 5-10-1995, whereunder the minimum qualification for admission of local candidates into professional courses in lieu of Non-Resident Indian/Foreign Students (for short NRI) is prescribed as 1st class in Intermediate examination or equivalent examination and also in theconcerned group, is assailed on various grounds. It is useful to extract both the clauses for belter appreciation of the case, respectively: (1) G.O. Ms. No.25G, Edn. (EC-2), Dept., dated 17-11-1993. "x x x. In the light of representations received, Government have reconsidered the question of fixation of fees to be charged to the candidates who will be admitted in lieu of Non-Resident Indians/ Foreign students. Keeping in view of the differential economic levels of Non-Resident Indians/Foreign students and Indian students and at the same lime the need to maintain a distinction between candidates allotted by competent authority for payment seats by virtue of the common entrance test and candidates selected by managements without common entrance test, and also the need to maintain minimum academic standard, Government issue the following orders in partial modification of Government order 3rd read above. (i) A fee of Rs.75,000.00 per (academic year) (Rupees seventy five thousand only) shall be collected from thecandidates admitted in lieu of Non-Resident Indian/Foreign students. (ii) The minimum qualification for the candidates to be admitted in lieu of Non-Resident Indian/Foreign Students is 1st class in Intermediate examinations or equivalent examination and also in the concerned group. (iii) Since the managements are free to fill up the seats under 15% quota, the reservation would apply to balance 85% of the seats."G.O. Ms. No.329, Edn. (EC-2), Dept., dated 5-10-1995, para 4: "x x x x, In case, NRI/Foreign students are not available to fill up all the seats within the said 5% meant for them, it shall be open for the managements to admit other students within the said quota. It will not be necessary that the students admitted against the said 5% quota should be allottees from the competent authority or that they should have appeared for the EAMCET. However, they shall satisfy the eligibility criteria for admission mentioned in G.O. Ms. No.256 Edn, dated 17-11-1993. The fees chargeable will be as indicated in G.O. Ms. No.304, Ed., dated 30-12-1993."In G.O. Ms. No.304, dated 30-12-1993, the yearly tuition fee payable by these candidates was further slashed down by Rs.50,000.00
(2.) The arguments on behalf of the petitioners in this batch of writ petitions were advanced by Sri P. Gangaiah Naidu and Sri C. Kodanda Ram. Sri S. Satyanarayana Prasad, Government Pleader for Higher Education countered their arguments. From the pleadings and the arguments advanced across the bar, the following issues are settled for adjudication (1) The first and foremost contention urged on behalf of the petitioners is with regard to the legislative competency of the respondents in issuing the impugned G.O. i.e., G.O. Ms. No.256, dated 17-11-1993.In other words, it is the contention of the petitioners that the State Government is not competent to issue such an order in relation to the subjects included in List I of Schedule VII and the Parliament alone is having exclusive power to make laws with respect to any of the matters enumerated in List I of Schedule VII under Article 246(1) of the Constitution of India. Hence, the impugned GO. is a nullity in the eye of law. (2) Even assuming without admitting that the impugned G.O. is not hit by the principle of occupied field, the same is repugnant to Section 10(o) of AICTE Act, 1987.In other words, it is the contention of the petitioners that any guidelines for admission of students to technical institutions and Universities imparting technical education vests with the Council constituted under the Act and the action of the respondents in prescribing 1st class in Intermediate examination or equivalent examination as minimum qualification for admission under NRI quota, is repugnant to the said clause and as such it cannot be given effect to. (3) The action of the respondents in prescribing 1st class in Intermediate examination as a minimum qualification for admission to professional courses under NRI quota results in hostile discrimination against this class of students (a) as no such qualification is prescribed for the students who are seeking admission through entrance test, (b) It is their further contention that no such minimum qualification was prescribed for admission under NRI quota in any of the technical institutions in other States and the same offends equality clause as enshrined under Article 14 of the Constitution of India (4) The source of power to issue the impugned order by the respondents is not traceable to any statute or rules. Even assuming that the Government is having power, the same was not done in accordance with law and procedure. (5) Alternatively, it is the contention of the petitioners that the respondents are not competent to issue the impugned G.O. in exercise of their executive power under Article 162 of the Constitution of India (6) If the Court do not find substance in any of the grouns raised by the petitioners, their admission to engineering course may not be disturbed as most of them are on the verge of completing their courses.
(3.) Before taking up the issues for adjudication, a brief historical background is necessary to understand the scope of controversy involved in this batch of writ petitions.Before 42nd Amendment of the Constitution came into force on 3-1-1997, education was a State subject. Entry 11 of List II of the Seventh Schedule as it stood then read as follows;