Skip to content


A.N. Parasuraman and ors. Vs. State of Tamil Nadu and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 3818 of 1968 etc.
Judge
Reported inAIR1972Mad123
ActsConstitution of India - Articles 14, 19, 19(1) and 226; Madras Private Educational Institutions (Regulation) Act, 1966 - Sections 1(3), 1(4), 2, 3, 4, 4(1), 4(2), 5, 6 and 7; Model Act - Sections 6; ;Payment of Bonus Act, 1965 - Sections 37
AppellantA.N. Parasuraman and ors.
RespondentState of Tamil Nadu and anr.
Cases ReferredJalan Trading Co. v. Mill Mazdoor Sabha
Excerpt:
.....a separate section for the s. the petitioner adds that in the state of madras, there are over 400 private institutions like his institution, excluding private medical institutions. similarly, government should also publish a list like wish of educational institutions in relation to which such permission has been cancelled during the period. the competent authority may before according approval of the name of the institution, should take into consideration whether any word in the name is offensive to any section of the people, or whether the name is vague. 4. sections 3, 4 and 6, as well as r. we dare say that the competent authority, which the government appoints, would be a person well versed with educational matters, including policies and administration, and a person of experience..........of the college in any manner. the petitioner adds that in the state of madras, there are over 400 private institutions like his institution, excluding private medical institutions. on the legal submissions the petitioner makes, which we will presently notice, he wants the act to be struck down as violative of his fundamental right under arts. 19 and 14. the counter-affidavit filed by the secretary to government. education dept on behalf of the state, mainly deals with the petitioner's legal submissions in answer.2. the madras private educational institutions (regulation) act, hereafter referred to as the act, was enacted by the state legislature in 1966, received the assent of the president on 19-1-1967, and was published in the fort st. george gazette on 25-1-1967. in accordance with.....
Judgment:

K. Veeraswami, C.J.

1. This group of petitions under Art. 226 of the Constitution is concerned with the validity of some of the provisions of the Madras Private Educational Institutions (Regulation) Act 1966. It is said that they violate Articles 19(1)(g) and 14 of the Constitution. We may take W. P. 3818 of 1968 as an example. The petitioner describes himself as the managing partner of a registered partnership firm under the name and style of the Minerva Tutorial College, Halls Road, Madras. He is also stated to be the proprietor and Principal of the Tutorial College. His prayer is for a rule directing the respondent, the State of Madras, from enforcing the provisions of the Act against the College. It is said to have been established in about 1931 to coach students who have failed in their University examinations as private candidates. Two sessions in a year are held, one from June to September, and the other from the middle of November of March, to enable the candidates to appear for one or the other of the two University examinations during a year. Coaching is given to failed College students, including Science students, for who benefit there is a well equipped laboratory, and a separate section for the S. S. L. C. students has also been added. The tutorial college has on its staff, several qualified teachers some of whom are retired persons and some of whom also work as part time hands. There is a hostel attached to the College for the benefit of students who have no homes of their own in Madras and the boarders numbered about 239 during the last session in 1968. As many as 49331 students has been trained down the years, and enabled to pass their examinations, several with distinctions and first classes, and thus the college has been serving a real public need. The College does not get any grant or aid from the Government, or any other public body, and is maintained entirely by the fees received from the students, and there has been no complaint whatever from any student, or his parent, or from any other quarter about the management of the College in any manner. The petitioner adds that in the State of Madras, there are over 400 private institutions like his institution, excluding private medical institutions. On the legal submissions the petitioner makes, which we will presently notice, he wants the Act to be struck down as violative of his fundamental right under Arts. 19 and 14. The counter-affidavit filed by the Secretary to Government. Education Dept on behalf of the State, mainly deals with the petitioner's legal submissions in answer.

2. The Madras Private Educational Institutions (Regulation) Act, hereafter referred to as the Act, was enacted by the State Legislature in 1966, received the assent of the President on 19-1-1967, and was published in the Fort St. George Gazette on 25-1-1967. In accordance with Section 1(4), the Act came into force on 21-8-1968, pursuant to a notification published on that date. The Act is intended to provide for the regulation of certain unrecognised private educational institutions in the Tamil Nadu State. By Section 1(3)(b), the Act is applied only to certain private educational institutions specified in this provision, that is to say, any private educational institution having at any time more than 50 students on its rolls, in case it imparts technical education, or 100 students on its rolls in any other case or six thousand rupees as its annual receipts. But Section 5 and 9 apply to every private educational institution. Any educational institution maintained, recognised or approved by or under authority from the Government or maintained or approved by, or affiliated to, any University established by law, or imparting medical education are excluded from the purview of the Act. A private educational institution has been defined to mean, any college, school or other institution, whether or not called a tutorial college, school or institution or training centre established and run with the object of preparing, training or guiding its students for any certificate, degree or diploma and includes any institution mentioned in sub-clause (iv) of C1, (b) of Section 2. A 'competent authority' for the purpose of the Act means any person, officer or other authority authorised by the Government, by notification, to perform the functions of the competent authority under the Act, for such area or in relation to such class of private educational institutions, as may be specified in the notification.

The main regulation of a private educational institution is that introduced by Section 3 of the Act, namely, no such existing institution can be continued beyond a period of six months from the commencement of the Act, or established with the permission of the 'competent authority' and except in accordance with the terms and conditions specified in such permission. Every manager of a private educational institution in existence, or to be established, is required by Section 4(1) and (2), to make an application for permission to continue, or start it, and the application should contain the particulars detailed in Section 4(2). The applications itself should be made in the prescribed form, and should be accompanied by the prescribed fee not exceeding five hundred rupees. Among the particulars to be given in the application are, the name of the private educational institution and the name and address of the manager, the certificate, degree or diploma for which such private educational institution prepares, trains or guides or proposes to prepare, train or guide its students or the certificate, degree or diploma which it grants or confers or proposes to grant or confer, the amenities available or proposed to be made available to students, the names of the members of the teaching staff and the educational qualifications of each such member, the equipment, laboratory, library and other facilities for instruction, the number of students in the private educational institutions and the groups into which they are divided, the scales of fees payable by the students, the sources of income to ensure the financial stability of the private educational institution, the situation and the description of the buildings in which such private educational institution is being run or is proposed to be established. Other particulars as may be prescribed should also be given.

Section 6 provides that, on receipt of an application under Section 4, the competent authority may grant or refuse to grant the permission after taking into consideration, the particulars contained in such application. Under the first proviso to the section, permission cannot be refused unless the applicant has been given an opportunity of making his representations. Permission granted is liable to be cancelled under Section 7, if it had been obtained by fraud, misrepresentation or suppression of material particulars, for contravention of any of the terms of conditions of the permission or of any direction issued by the competent authority under the Act, but before cancelling the permission, the competent authority should give the manager an opportunity of making his representations. Any transfer of permission should have the approval of the competent authority. But if a transfer has been made without such approval, the transferee should apply for it within three months from the date of the transfer. There is a fee prescribed, not exceeding two hundred and fifty rupees for an application. The competent authority may refuse, or grant approval, after making such enquiry as it thinks fit, and may impose such conditions as it thinks fit. It may also subject the approval to such conditions as it may impose. Here again, approval cannot be refused unless the applicant had been given an opportunity of making his representations. Any certificate, degree or diploma issued by any institution mentioned in sub-clause (iv) of C1. (b) of S. 2 shall be in such form and contain such particulars as may be prescribed. A list of private educational institutions should be published by Govt. on or before the first day of June every year in the Fort St. George Gazette which had been granted permission under Section 6 during the period ending with the 31st day of March immediately preceding. Similarly, Government should also publish a list like wish of educational institutions in relation to which such permission has been cancelled during the period. Every private educational institution, as provided by Section 5, should include in its name the words 'Tutorial centre' or 'tutorial institute', if it prepares, trains or guides its students for any certificate, degree or diploma granted or conferred by any University established by law or by any institution, officer, authority or body of individuals mentioned in sub-clause (ii) or (iii) of C1. (b) of S. 2. The words 'Training centre' shall be included in the name if it is an institution mentioned in sub-clause (iv) of C1. (b) of Section 2.

Subject to these provisions relating to the requirements with respect to the name of the private educational institutions, no private educational institution can style itself under any name except in accordance with such rules as may be made in this behalf and without the approval of the competent authority. Provisions are to be found in the Act as to account, audit, inspection and returns of private educational institutions. They should keep the accounts in such manner containing such particulars as may be prescribed, which should be audited every year by a chartered Accountant. Any private educational institution may be inspected by the competent authority whenever it considers necessary, and it shall have the authority to direct the manager to rectify the defects, if any, found during the course of the inspection, within such time as it may fix. The competent authority may also issue such directions regarding the management of a private educational institution as it may think fit, and it shall be the duty of the manager of such private educational institution to carry out such directions of the competent authority within such time as may be fixed by the competent authority. The private educational institution is also to furnish within the prescribed time, to the competent authority such returns, statistics and other informations as it may, from time to time, require. No private educational institution and no class in a private educational institution shall be closed without a notice in writing having been given to the competent authority, and without satisfying the competent authority that adequate arrangements have been made either for the continuance of the instruction of the students of the private educational institution or the class, as the case may be, for the period of study for which the students have been admitted, or for the refund of the fees paid by the students. Then follow some miscellaneous provisions which, among other things provide for appeals from any decision of the competent authority to the prescribed authority constituting contravention of any of the provisions of the Act, or any rule made thereunder, punishable with fine which may extend to one thousand rupees, or for continuing contravention to an additional fine which may extend to one hundred rupees for every day of such contravention, power to exempt any private educational institution, or class of private educational institution from all or any of the provisions of the Act, and the power to make rules. But Rules have been made under the Act which prescribes forms of applications to be made, form of permission under S. 6, etc.

The Appellate Authority prescribed is the Director of School education in relation to matric institution, the Director of Collegiate education in relation to post-matric institutions and the Director of Technical Education in respect of institutions imparting technical education. One of the rules is to the effect that no institution shall style itself under any name, expression or implying the sanction, approval or patronage of the Central or any State Government or which suggests or is calculated to suggest connection with any University established by law, or which is the same as, or similar to, or a colourable imitation of, that of any other institution in the same city or town, or include in its name the word 'college' or 'university'. This rule also requires that, particulars regarding the certificate, degree or diploma for which the institution prepares, trains or in its name. The competent authority may before according approval of the name of the institution, should take into consideration whether any word in the name is offensive to any section of the people, or whether the name is vague. The name of the institution approved by the competent authority requires for its alteration, further approval therefor by that authority.

3. The gravamen of the attack by the petitioner is, that there is nothing in the Act to indicate what they have to comply with for grant of permission for continuance, or establishment of a private educational institution. They say that while the Act requires them and future applicants of facts and particulars, it lays down no criteria, or guidelines for the competent authority to exercise its discretion, and from this point of view, the Act vests in the competent authority arbitrary power. Even assuming that the legislature can regulate the private educational institutions, the Act as it is, is unreasonable and offends Article 19(1)(g) and Art. 14. Our attention is invited to Section 6 of the Model Act which, according to the petitioners, referred to certain guidelines in granting permission, and it is contended that significantly these provisions have been omitted in the impugned Act.

4. Sections 3, 4 and 6, as well as R. 3 relate to permission. The first of the sections places an embargo upon continuance, or establishment of private educational institutions without obtaining permission of the competent authority and except in accordance with the terms and conditions specified in such permission, and Section 4 provides for application for permission, and the particulars to be furnished in respect thereof. The power to grant, or refuse permission, is vested in the competent authority, by Section 6. The competent authority as stated in the section, can only exercise its power or discretion, after taking into consideration the particulars contained in the application, and where it proposes to refuse, it can do so only after it has given an opportunity to the applicant of making his representations. Thus, the particulars furnished by the applicant in his application furnish the material in the light of which the discretion vested I the competent authority is to be guided and exercised. We are unable to hold that vesting of such power in the circumstances, is either unreasonable, or arbitrary. For instance, one of the particulars to be given in the application is, as to the name of the private educational institution. Section 5(1) and Rule 4 prescribe certain restrictions and conditions in naming of the institution. In granting or refusing permission, the competent authority under Section 6, has to see whether Section 5 and Rule 4 have been complied with. Another particular to be noted in the application is, as to the certificate, degree, or diploma for which the private educational institution prepares, trains or guides, or proposes to prepare, train or guide its students. Once that is set out, there is no further discretion vested in the competent authority to refuse permission in that regard. So too, in respect of the amenities available, or proposed to be made available to the students about which mention should be made in the application. It is true that it is not indicated in the Act what amenities should be made available. But having regard to particular amenities existing or proposed by a private educational institution, the competent authority will have to exercise its discretion in a reasonable way. The form of application is required to set out the names of the members of the teaching staff, and the educational qualifications of each such member. The information furnished will furnish a reasonable guide to the competent authority. So too, the equipment, laboratory, library and other facilities for the institution, and the number of students in the private educational institution and the group into which they are divided will give an idea for that authority to exercise its discretion. The scales of fees payable by the students have to be set out in the application and this again will be a matter for the judgment of the competent authority. If the fee is too exorbitant and out of all proportion, the authority will exercise the discretion in a proper way. But if the fee is reasonable it will have nothing further to say about it. In order to see whether the private educational institution can fairly carry on its activities, the application has to set out the source of income to ensure its financial stability. That is again a matter in which the competent authority cannot act arbitrarily. The situation and description of the buildings in which such private education institution is being run, or is proposed to be established, which is another matter to be mentioned in the application, is a relevant matter which the competent authority has to take into account, and if the situation of the building is in an obviously dangerous place from the standpoint of health it will not be reasonable to grant permission. The fact that standards of the requirements for a private educational institution have not been prescribed, cannot itself give rise to an argument that the power vested in the competent authority to grant or refuse permission in unreasonable, or arbitrary. Where the particulars required have been given in the application, they themselves in almost all the cases will indicate the lines on which the competent authority will have to act in granting or refusing the application. The learned Advocate-General dispelled the apprehension of the petitioners and stated that where the required particulars are given in the application, it would invariably be granted, unless refusal is warranted reasonably and fairly, which will have to appear objectively on facts. The power has to be exercised in the light of the particulars, and no application can be refused until the competent authority has given the applicant opportunity of making his representations and the authority has taken them into consideration. Where it refuses an application, it has of course, to give its reasons. It is no doubt true that in the Model Bill which was apparently circulated to all the States, Section 6 provided that in granting or refusing an application for permission, the competent authority should take into account the method of imparting education, the qualifications of the member of the teaching staff, the provisions for library and laboratory, the suitability and adequacy of accommodation, the provisions of the welfare of the students the scheme of management referred to in Section 7, and such other particulars as may be prescribed have to be given in the application. But it seems to us that S. 6 of the impugned Act does the same thing, but without repeating the matters to be taken into account because they are those which have to be set out in the application, and the section merely contents itself by saying that the competent authority in dealing with the application for permission, should take into consideration the particulars contained in such application. It is true that the Madras University has laid down certain standards to be complied with for purposes of recognition, affiliation and approval of Colleges. But the Legislature, in enacting the impugned Act, apparently thought that those standards need not be laid down, having regard to the peculiar character of the private educational institutions, and the fact that such standards have not been prescribed is neither a matter on which the petitioners can feel aggrieved about, nor can it be considered to be an indication that the power vested by Section 6 in the competent authority is unreasonable and arbitrary power. We dare say that the competent authority, which the Government appoints, would be a person well versed with educational matters, including policies and administration, and a person of experience and high attainment, who can be trusted to exercise the power fairly and reasonably in disposing of applications for permission. We do not also see what precise guidelines could be formulated, in the circumstances for exercise of the power under Section 6. We accept the learned Advocate General's statement that once the particulars required under Section 4(2) are furnished in the application for permission, invariably permission will be granted, and it will be refused only for stated reasons, which will always be subject to the best of reasonableness and fairness. We are of opinion. therefore, that neither the restriction, nor the power relating to grant of permission vested in the competent authority, is unreasonable or arbitrary. We may observe that as pointed out by S. A. de Smith in his Judicial Review of Administrative Action, second Edn. at page 278, where the competent authority is empowered to take such action or to impose such conditions as it thinks fit in relation to a subject-matter, the courts have generally declined to construe such words as investing the authority with an absolute discretion to do as it pleases. Such authority must necessarily have regard to the relevant considerations, and disregard the irrelevant, nor must the decision be such that no reasonable authority could even have reached. We also agree with the observations of the author that it may be assumed that the authority must also genuinely address itself to the application before it, consider it on its individual merits and not try to promote a purpose alien to the spirit of the Act. That was also the approach to the question made by the court of appeal in Associated Provincial Pictures Hoses v. Wednesbury Corporation, 1948 1 KB 223, when Section 6 says that the competent authority should, in disposing of an application, take into consideration the particulars contained in the application, those particulars required by Section 4 and given in the application, do furnish more or less the criteria with reference to which the competent authority should exercise its discretion. Having regard to the nature of the business, it seems to us, that it is not possible to attempt more precise criteria. The object of the Act seems to be to regulate, and not prevent any private educational institutions. While facts required by Section 4 should be considered, the competent authority should also take into account and weigh the representations made by the applicant. Those are sufficient criteria and safeguards. We therefore, hold Sections 3, 4, 6 and Rule 3 to be valid.

5. Referring to Section 2(c), it is contended that competent authority means any person authorised by Government to perform the functions of such authority and that means irrespective of the qualifications of the person, whether fit or unfit the Government may authorise it to function as a competent authority. It is said that such a power is arbitrary and harmful. We are unable to agree. The authority to nominate the competent authority being vested in the Government, we do not think that so high an authority as that will abuse the power and ever nominate a person who is not qualified to act as a competent authority: Virendra v. State of Punjab, : [1958]1SCR308 . It was mentioned to us that if a competent person appointed by the Government happened to be a rival of an applicant under Section 4, it would be disastrous to him. If such a case arises, it could be really dealt with by the court and the applicant could be given relief. But we cannot assume that the power vested in the Government will be abused by it. It is to be taken for granted that the Government will choose a person fully qualified, having experience in the educational field and who knows the problems of education, as a competent authority, and not simply any one irrespective of qualification or experience.

6. We are not also convinced that the power to cancel permission contained in Section 7 is open to say objection. The validity of the first part of sub-section (1) of S. 7 is obvious. No one can reasonably say that if permission has been obtained by fraud, misrepresentation, or suppression of material particulars, or where there is contravention of any of the provisions of the Act, or any rule made thereunder, or of any of the terms or conditions of the permission, the permission should not be cancelled. But is liable to be cancelled for contravention of any direction issued by the competent authority under the Act, this will be an uncontrolled and unguided power which will be invalid. We do not think so. The competent authority cannot issue direction at his whims and fancies, but only for the purpose of advancing the purpose of the Act. Its objective, its various provisions do, in our opinion, furnish guide in the competent authority giving directions. Such directions should be relevant, necessary and reasonable, and where it is not, it is liable to judicial scrutiny as to its arbitrary character. In our view, the section as it is, is not open to challenge.

7. We are not persuaded that the provisions relating to the penalties, power of exemption and inspection, are, in any way, invalid. Contravention of any of the provisions of the Act, or the rules made thereunder, is a necessary concomitant to give effect to the provisions of the Act, and so too, the power of inspection. It is true Section 22 does not say in what circumstances exemption can be granted either to a class, or to a particular private educational institution. But, by and large the Government will have to be guided by the purpose of the Act, and no arbitrary exemption can be made. But if any exemption is attacked as arbitrary, it will have to be examined. But we do not think, that the power, as given in Section 22, is open to objection on the ground that ex facie it is arbitrary: P. J. Irani v. State of Madras. : [1962]2SCR169 . We find Section 17(1) Confers right of appeal on a manager, who is aggrieved by any decision of the competent authority. This is a further safeguard against the competent authority exercising its power in an arbitrary way, either in respect of refusal of permission, or in the matter of giving any direction to any private educational institution. The appeal, no doubt, lies to an authority which may be prescribed. But we do not think that this provision on that account can be attacked as invalid, for, here again the authority to prescribe the appellate authority is the Government, which can reasonably be expected to exercise the power having regard to the purpose of the Act and to the qualifications necessary for being an appellate authority. Some argument was advanced to us, of Section 5 and Rule 4, which relate to the naming of an institution. But we think, that having regard to the whole purpose of the Act, this provision is reasonable.

8. Lastly we come to Section 28, which says that if any difficulty arises in giving effect to the provisions of the Act, the Government may, as the occasion may require, by order, do anything which appears to them to be necessary for the purpose of removing the difficulty. This appears to be a sweeping power, the limits of which we are unable to comprehend. This section undoubtedly amounts to delegation of legislative power, which is not permissible. Section 37 of the Payment of Bonus Act, 1965 said-

'If any difficulty or doubt arises in giving effect to the provisions of this Act, the Central Government may by order published in Official Gazette, make such provision, not inconsistent with the purposes of this Act as appears to it to be necessary or expedient for the removal of the difficulty or doubt, and the order of the Central Government in such cases shall be final.'

This section was struck down as invalid by the Supreme Court in Jalan Trading Co. v. Mill Mazdoor Sabha, : (1966)IILLJ546SC . The court pointed out that if in giving effect to the provisions of the Act any doubt or difficulty arose, normally it was for the Legislature to remove that doubt or difficulty and that power to remove the doubt or difficulty by altering the provisions of the Act would in substance amount to exercise of legislative authority and that could not be delegated to an executive authority. Section 28 of the impugned Act is open to the same objection. We, therefore, declare it to be invalid. We uphold the validity of the rest of the provisions of the Act, and Section 28 is clearly severable from them.

9. The petitions are dismissed. No costs.

10. The petitioners say that in view of the pendency of the writ petitions, they could not possibly comply with the requirements under the Act. In the circumstances, we consider it proper to direct that the petitioners will have four weeks' time to comply with the provisions of the Act.

11. Petitions dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //