Penalty Clause In Policy For Private Colleges Issued By Commissioner, College Education Is Illegal & Beyond His Power, Rajasthan High Court

The Rajasthan High Court has observed that the penalty clause in the Private Colleges Policy issued by the Commissioner, College Education, for different years in question, is beyond his power and illegal. Essentially, the petitioners were granted temporary recognition after due inspection, verification and the same was continued. The affiliations were granted by the Universities and the students were admitted on a regular basis who have appeared for examination over the years. However, due to certain deficiencies, in terms of private policy, for different years, penalty and recovery was initiated and on account of non-deposition thereof or any other reasons, the NOC was not issued. As a consequence, the affiliation was also either not extended or withheld and disputes arose for not releasing admit cards to the students for appearing in examinations or for non-declaration of their result. Aggrieved by this, the present writ petition has been filed praying for grant of NOC/affiliation, appearing in the examination and changing the category from ex student to regular student, etc. The court considered these matters on the point of competence of the Commissioner, College Education for issuance of policy and more particularly qua the powers of imposing penalty under the same and whether the same is legal, jurisdictionally valid and permissible under the Rajasthan Non-Government Educational Institutions Act, 1989 or not. Justice Sameer Jain, disposed of the writ petitioners in terms of the following directions and observations: (1) The penalty clause in the policy/instructions for Private Colleges issued by the Commissioner, College Education, for different years in question, is held to be beyond his power and is declared illegal.(2) The penalty deposited by the respective petitioner/college under the orders of the Court or in the light of the provisions of the Private Colleges Policy be refunded to the petitioners/colleges within a period of sixty days failing which interest @ 6% will accrue on the same after lapse of 60 days."(3) Amount refunded by the respondents shall be deposited by the respective petitioners/colleges in the "Student Welfare Fund", and be used for the welfare and betterment of students in activities like clearing dues of students who are unable to deposit fee, medical care, library, and other amenities and facilities needed for and by the students and not be used for any other purpose.(4) The State as well as respondents are directed to ensure that on account of present dispute, students should not be made to suffer and their results, mark-sheets, admit cards, other documents should not be withheld and be declared/released in capacity of regular students forthwith immediately, without any fail. The respondents are directed to assist and help the students in question on 24×7 basis. No student should be deprived of appearance in any future examination or appearance on account of present dispute as the petitioners have submitted that the nondeclaration of result is causing prejudice to the students for appearing in future examinations including competitive examinations. The court observed that the phraseology 'delegated legislation' or 'delegated instructions' cannot be continued for the reasons that neither the policy was issued under the provisions of Section 42 of the Act of 1989 nor they had any authority under Section 43 of the Act of 1989. The court opined that the respondents have ultra-vires to the Rajasthan Non-Government Educational Institutions Act, 1989 and Rules of 1993 imposed, invoked and charged the petitioners which was neither authorised nor permitted or delegated by the Act and Rules. Moreover, the court also opined that neither the Act of 1989 or the Rules of 1993 have given any specific power for imposition of penalty other than Sections 33 and 34 of the Act of 1989. Even the policies issued by the Commissioner of College Education are in consonance as at the time of very formulation of the Colleges, there was no penal clause and in the later years, i.e. in 2015 and 2016, it was exercised exorbitantly to the extent of Rs.6 lac and in the later years, it was reduced to the extent of Rs.50,000/- on per year basis, without any reasoning, merely on the whims and fancies of the Commissioner, College Education, added the court. It was also opined that Courts should be slow in interfering with the policy decisions but it is also a settled law that judicial review is permissible if any policy, instruction, letter or direction is issued illegally without any authority of law, beyond the powers given under the Act and is overriding the provisions of the superior laws like the Act of 1989 and the Rules of 1993. Further, the court observed that the only power for imposition of penalty under a given set of circumstances for violation of respective Sections is enshrined under Section 33...

Penalty Clause In Policy For Private Colleges Issued By Commissioner, College Education Is Illegal & Beyond His Power, Rajasthan High Court

ANIRUDH VIJAY

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