A N PARASURAMAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(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 21-81968, 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 subclause (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.