3 Nov 2016 3:56 AM GMT
The Patna High Court in Mirza Ghalib T. T. College & Ors vs. State of Bihar & Ors has dismissed writ petitions filed by unaided private institutions challenging the ordinance for admission to two-year Bachelor of Education (Secondary) Programme under universities of Bihar published under the orders of the Chancellor, Universities of Bihar, in exercise of powers under Section 38 (4)...
The Patna High Court in Mirza Ghalib T. T. College & Ors vs. State of Bihar & Ors has dismissed writ petitions filed by unaided private institutions challenging the ordinance for admission to two-year Bachelor of Education (Secondary) Programme under universities of Bihar published under the orders of the Chancellor, Universities of Bihar, in exercise of powers under Section 38 (4) and 39(2) (ii) of the Bihar State Universities Act, 1976, and similar provisions under the Patna University Act, 1976.
The bench of Chief Justice Iqbal Ahmed Ansari and Justice Chakradhari Sharan Singh also laid down the procedure for admission to unaided privately-managed professional minority and non-minority institutions and the fee structure, on the basis of which the students are to be charged their tuition and other incidental fees by such institutions.
These institutions challenged the ordinance stating grounds such as ‘arbitrariness, unreasonableness and lack of rationale’.
The legal position in relation to right of a professional institution to establish and manage educational institution is as under:-
(i) Right of professional institutions to establish and manage educational institutions is right to occupation, which is a fundamental right within the meaning of Article 19(1)(g) of the Constitution of India. But it’s not on par with other occupations or business activities. While carrying on occupation in the field of education, the educational institutions cannot indulge in profiteering or commercialization.
(ii) It can be subjected to regulatory measures by the State so that admissions to such institutions of students and levy of fee from them satisfy the “triple test” of fairness, transparency and non-exploitativeness.
(iii) The State, in order to ensure fairness in the matter of admissions, can provide for a Combined Entrance Test for all professional institutions in the State, which are imparting education in same/similar professional courses. The restriction on admissions to such educational institutions, through Common Entrance Test, is reasonable restriction which satisfies the test of proportionality.
(iv) Holding of such Common Entrance Test, followed by a centralized counseling or, in other words a single window system, regulating admissions does not cause any abridgement of the right of minority unaided educational institutions to admit students of their choice as such choice can be exercised from the list of successful candidates, prepared at CET, without altering the order of merit inter se of the students so chosen.
(v) Minority institutions, based on the result of CET, are free to admit students of their own choice including students of non-minority community as also members of their own community from other States, but both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. Otherwise it loses protection of Article 30(1) of the Constitution of India.
(vi) Every unaided privately managed educational institution can be regulated in the interest of preventing profiteering and check capitation fee.
(viii) While fixing fee structure, the following considerations are to be kept in mind:-
(a.) the infrastructure and facilities available;
(b.) investment made, salaries paid to the teachers and staff; and
(c.) future plans or expansion and/or betterment of institution, subject to two restrictions viz., non-profiteering and non-charging of capitation fees.
It was undisputed that B.Ed course is an undergraduate professional course. The State enjoyed credibility in the matter to achieve fulfillment of twin objectives of transparency and merit, which is in the larger public interest.
The court further said that the principle equally applies to minority institutions and minority and non-minority institutions cannot be distinguished for the purpose of regulating admission on the basis of Combined Entrance Test (CET). Thus, CETs, to be held by the respective universities, were not found to be violative of any constitutional provision or other statutory enactment. In fact, the court vacated interim orders, allowing the institutions to admit students according to their own procedure and directed the institutions to abide by the provisions under the ordinance in this regard. It said:
“In the facts and circumstances of the case, we direct the universities to hold a Combined Entrance Test for admission to B.Ed. courses in unaided education institutions, if not already held, within a period of one month from today, in accordance with the provisions of the ordinance.”
As regards the challenge to the fee structure, the court said:
“We are mindful of the fact and it has been mentioned in the letter, dated 02.09.2015, through which the regulation/ordinance is being sought to be implemented that the said fee structure has been fixed provisionally and a state level committee is proposed to be constituted for deciding the fee structure. Since we do not find any material basis on record for arriving at the fee structure, as prescribed, we intend to hold the said fixation of fee, which has been made a part of the ordinance itself, to be without any basis and, therefore, unsustainable.”
With this, all the interim orders stood vacated and the writ petitions were dismissed without costs.
Read the Judgment here.
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