Patna High Court
Raj Kishore Suman vs The State Of Bihar & Ors on 28 January, 2011
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh, Ravi Ranjan
CIVIL WRIT JURISDICTION CASE No.9941 OF 2010
----------------
ABUL LAIS, SON OF MD. YAKUB ALI, RESIDENT OF
OF MOHALLA, NEW AZIMABAD, P.S. BAHADURPUR, DISTRICT -
PATNA, THE DIRECTOR CONCEPT COACHING INSTITUTE,
RAMNA ROAD, PATNA........................, PETITIONER
Versus
1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY,
HUMAN RESOURCES DEVELOPMENT DEPARTMENT,
GOVERNMENT OF BIHAR, PATNA
2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES
DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA
3. THE DIRECTOR, HIGHER EDUCATION, BIHAR, PATNA.
4. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA
5. THE DISTRICT MAGISTRATE- PATNA
6. THE DISTRICT EDUCATION OFFICER,PATNA..RESPONDENTS
CWJC No.9732 of 2010
RAJ KISHORE SUMAN, SON OF SRI PRAHALAD SINGH,
RESIDENT OF MOHALLA- R.K. COLONY, P.O. MAHENDRU, P.S.
BAHADURPUR DISTRICT- PATNA, PROPRIETOR OF SUMAN
I.I.T.MATH CENTRE, R.K. COLONY, P.O. MAHENDRU, P.S
BAHADURPUDISTRICT- PATNA............... PETITIONER
VERSUS
1. THE STATE OF BIHAR
2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES
DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA
3. THE LAW SECRETARY, GOVT. OF BIHAR, PATNA
4. THE DISTRICT MAGISTRATE, PATNA
5. THE DISTRICT EDUCATION OFFICER, PATNA... RESPTS.
CWJC No.10796 oF 2010
ASSOCIATION OF COACHING AND SCHOOL ACTIVIST ITS
ORGANIZING SECRETARY, RAJ KUMAR SINGH,103
NEMA PLACE, EXHIBITION ROAD, P.S.- GANDHI MAIDAN
DISTRICT-PATNA.............................. PETITIONER
Versus
1. THE STATE OF BIHAR
2. THE CHIEF SECRETARY, GOVT. OF BIHAR, HAVING ITS OFFICE
SITUATED AT MAIN SECRETARIAT, P.S. SACHIVALAYA, PATNA
3. THE PRINCIPAL SECRETARY, HUMAN RESOURCES
DEPARTMENT, OFFICE SITUATED AT VIKASH BHAWAN,P.S.
SHASHTRINAGAR, BAILEY ROAD, PATNA.
4. THE DISTRICT MAGISTRATE- PATNA
2
5. THE LAW SECRETARY, GOVT. OF BIHAR, HAVING ITS OFFICE
SITUATED AT MAIN SECRETARIAT, P.S. SACHIVALAYA, PATNA
6. DISTRICT EDUCATION OFFICER, PATNA....... RESPONDENTS.
CWJC No.12145 oF 2010
AJIT KUMAR SON OF RAM NARESH SHARMA, RESIDENT OF
MOHALLA - HANUMAN NAGAR, P.S. KANKARBAGH, PATNA-20
................................................................PETITIONER
Versus
1. THE STATE OF BIHAR
2. THE CHIEF SECRETARY, GOVT. OF BIHAR, OLD SECRETARIAT,
PATNA
3. THE PRINCIPAL SECRETARY, HUMAN RESOURCES
DEVELOPMENT DEPARTMENT, VIKASH BHAWAN, PATNA.
4. THE DISTRICT MAGISTRATE- PATNA
5. THE LAW SECRETARY, GOVT. OF BIHAR, OLD SECRETARIAT,
6. THE DISTRICT EDUCATION OFFICER,PATNA.... RESPONDENTS
CWJC No.19377 oF 2010
MANORANJAN KUMAR MISHRA SON OF SRI SHYAM NARAYAN
MISHRA, R/O VILLAGE AND P.O. KEHUNIA, VIA LAURIA
P.S. AND DISTRICT- WEST CHAMPARAN, PRESENTLY, RE-
SIDING IN MOHALLA P.C. COLONY, KANKARBAGH, P.S.
KANKARBAGH TOWN AND DISTRICT- PATNA...... PETITIONER
Versus
1. THE STATE OF BIHAR
2. PRINCIPAL SECRETARY, DEPTT. OF HUMAN RESOURCES
DEVELOPMENT, GOVT. OF BIHAR, PATNA
3. THE DISTRICT MAGISTRATE- PATNA ............ RESPONDENTS
CWJC No.12794 oF 2010
PRIVATE TEACHERS ASSOCIATION,KHAGARIA,THROUGH ITS PRESIDENT,
DR. MD.NAUSHAD ALAM, S/O MD. SEKANDAR AZAM, R/O NALA ROAD,
JAIPRAKASH NAGAR, P.S. KHAGARIA, DIST. PATNA... PETITIONER
Versus
1. THE STATE OF BIHAR
2. THE CHIEF SECRETARY, GOVT. OF BIHAR, MAIN SECRETARIAT,
P.S. SACHIVALAYA, PATNA
3. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEPARTMENT
SITUATED AT VIKASH BHAWAN, P.S. SHASHTRINAGAR, BAILEY
ROAD, PATNA
4. THE DISTRICT MAGISTRATE- KHAGARIA
5. THE LAW SECRETARY, GOVT. OF BIHAR SITUATED AT MAIN
SECRETARIAT, P.S. SACHIVALAYA, PATNA
6. DISTRICT EDUCATION OFFICER, KHAGARIA.... RESPONDENTS
3
CWJC No.12875 oF 2010
VIDYA SHANKAR PRASAD, SON OF SHRI RAMADHAR PRASAD,
RESIDENT OF GAURAKHANI, SASARAM...............PETITIONER
Versus
1. THE STATE OF BIHAR
2. THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA.
3. PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT
DEPARTMENT, GOVT. OF BIHAR, PATNA
4. LAW SECRETARY, GOVT. OF BIHAR, PATNA
5. DISTRICT MAGISTRATE- ROHTAS
6. DISTRICT EDUCATION OFFICER, ROHTAS.............. RESPTS.
CWJC No.11127 oF 2010
1. HARSH KUMAR
2. SAURABH KUMAR, SONS OF SHRI RAVINDRA KR. SINHA, ADVOCATE
R/O MOHALLA- NAYATOLA, P.S. PIRBAHORE, PATNA.. PETITIONERS
Versus
1. THE STATE OF BIHAR
2. THE DISTRICT MAGISTRATE, PATNA
3. PRINCIPAL SECRETARY, HUMANRESOURCES DEVELOPMENT
DEPARTMENT, GOVT. OF BIHAR, PATNA
4. THE DISTRICT EDUCATION OFFICER, PATNA............... RESPONDENTS
--------
FOR THE PETITIONER : MR. SHIVAJEE PANDEY,SR. ADVOCATE
MR. MIRTUNJAY KUMAR, ADVOCATE
( C.W.J.C. No. 9941/2010)
FOR THE RESPONDENTS- MR. A.A.G.3
--------
FOR THE PETITIONER :MR. CHITRANJAN SINHA,SR.ADVOCATE
MR. SIDHARTHA PRASAD, ADVOCATE
FOR THE RESPONDENTS :(AAG3) ( C.W.J.C. NO. 12875/2010)
--------
FOR THE PETITIONER :MR. SARVAN KUMAR,ADVOCATE
FOR THE RESPONDENT :- :(AAG3) (C.W.J.C. NO. 12145/10)
--------
FOR THE PETITIONER :MR. ARUN KUMAR,
MR. DAYA SHANKAR PD.ADVOCATE
(C..W.J.C. NO. 10796/10)
FOR THE RESPONDENTS ...(AAG3)
4
PRESENT
THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON'BLE MR. JUSTICE DR. RAVI RANJAN
----------
Shiva Kirti Singh,J These writ petitions have been heard together because
all contain a challenge to vires of the Bihar Coaching Institute
(Control and Regulation), Act,2010 ( hereinafter referred to as
`the Act') or to some of its provisions. Petitioners are
individuals or associations who are carrying on work of
teaching or coaching by way of professions or occupation.
2. On behalf of petitioners certain provisions, such as
those under Sub-section (4) of Section 3, Section 4 and
Section 6 of the Act have been assailed, mainly on the
touchstone of Article 19(1) (g ) of the Constitution of India.
The contention is that several provisions or requirements in
the offending part of the Act have placed unreasonable
restrictions upon fundamental right guaranteed to all citizens
to practice any profession, or to carry on any occupation,
trade or business. Secondly, some of the petitioners have
challenged the whole Act on the ground that the State
Legislature does not have the legislative competence to enact
5
such a legislation because the topic- `Education' mentioned
in Entry 25 of List III of Schedule VII of the Constitution
should not be given such wide meaning so as to cover the
training given by private Coaching Institutes to its students.
3. Further, on behalf of several petitioners, who claim to
be individual teachers or tutors, it was strenuously argued that
they cannot be included under the definition of the term-
"Coaching Institutes" as defined under section 2 (ix) of the
Act. This submission required us to look into the term
`Institution' as given in Law Lexicons or dictionary. As per
judicial pronouncements the meaning of the term institution
varies as per context and the scope of a particular enactment.
On behalf of State emphasis was laid on the meaning of the
term `Institute' or `Institution' given at the end of page 2372
of Advanced Law Lexicon by P.A. Ramanath Aiyar, 3rd.
Edition,2005, according to which the word " Institution " both
in legal and colloquial use admits of application to physical
things which may include an establishment especially of
public character or affecting a community. Sometimes this
term may be used as descriptive of an establishment or place
where the business or operation of a society or association is
6
carried on. According to State, an organization concerned
with carrying on training or other educational activities to
provide preparation for competitive examinations or academic
support to the students, even if run by an individual will be
covered by the term " Coaching Institute" if the organization
has more than ten students,as per definition of the term
"Coaching Institute" in section 2 ( ix ) of the Act. Prima
facie, it appears that the term `Coaching Institute' is defined
keeping in mind the number of students receiving academic
support and not on the number of faculties or persons
associated with the organization or the institute. However, it
was rightly submitted by learned counsel for the State that
what shall be the width and scope of the term `Coaching
Institute' may arise for determination if an individual
challenges acts of authorities against an individual but such
an issue cannot have any bearing on the vires of the Act.
Hence, such submissions on behalf of some of the petitioners
need not be adjudicated in these writ petitions which have
been preferred at the initial stage only to challenge vires of
the Act.
4. So far as issue of legislative competence is concerned,
7
the preamble as well as definition of the term `Coaching
Institute' are of significance and need to be extracted which
are as follows;
"Preamble- to provide for the control and regulation
of private coaching institutes of the State for providing
better academic support in preparation of different
competitive examinations and curriculum and
admission into specialized institutions etc.
Section 2 (ix) - " Coaching Institute" means a
registered institute, by any private/ registered
institution or Trust, to provide preparation for
competitive examination or academic support for more
than 10 students, under section 3 of this Act."
5. It is amply clear that the subject of the Act is in
substance related to education. The submission advanced on
behalf of the petitioners that training of students by Coaching
Institute does not amount to education is to be noted only to be
rejected. The word `Education' has very wide meaning and
connotation. In this context learned counsel for the State has
rightly drawn our attention to the contents of paragraph-88 of
the Judgment of the Supreme Court in the case of P.A.
Inamdar Vrs. State of Maharashtra, (2005) 6 SCC537 which
runs as follows :-
"Education is:
..... continual growth of personality,
steady development of character, and the
qualitative improvement of life. A trained mind
8
has the capacity to draw spiritual nourishment
from every experience, be it defeat or victory,
sorrow or joy. Education is training the mind and
not stuffing the brain
We want that education by which
character is formed, strength of mind is increased,
the intellect is expanded, and by which one can stand
on one's own feet....The end of all education, all
training, should be man-making. The end and aim
of all training is to make the man grow. The training
by which the current and expression of will are
brought under control and become fruitful is called
education."
According to Chambers Dictionary
"Education is bringing up or training; ....
strengthening of the powers of body or mind;
culture"
6 The subject mentioned in Entry 25 of the Concurrent
List-1 in schedule- VII of the Constitution gives "Education"
an inclusive colour and content so as to include technical
education, medical education and Universities, subject to the
provisions of certain entries of list I, as well as vocational and
technical training of labour. Such entry is wide enough and
sufficient to empower the State Legislature to legislate in
respect of subject covered under the Act. The contention to
the contrary advanced on behalf of the petitioners has to be,
therefore, repelled.
7. The challenge on the ground of Article 19(1)(g)
of the Constitution of India is specifically directed against
9
some provisions in Sub-section (4) of Sections 4 and 6 of the
Act which are extracted herein below for easy reference :-
Section 3 (4) :
" After the commencement of this Act, any person
who desires to establish or run coaching institute
shall have to apply before the District Magistrate
in the prescribed form with registration fee of
Rs.5,000/- (Five thousand), along with the
following information-
(a) Determination of curriculum- (1) Curriculum
for different kinds of academic support and
duration for completion of curriculum shall be
clarified.
(2) Number of maximum students shall be
mentioned for every curriculum.
(b) Academic qualification of teachers- The
teaching shall be performed by non-government
teachers or retired teachers having at least
graduation qualification, along with the bio-data
of the teachers, their academic qualification and
experience shall be mentioned.
( c ) Tuition fees-(1) The coaching institute shall
have to issue a prospectus, mentioning different
curriculum/ duration of completion of curriculum
and with tuition fees.
(2) Under the curriculum, it shall be mandatory
to mention in the prospectus the number of
lectures, tutorial, group discussions etc.
(d) Physical Infrastructure- (1) Within the basic
structure of the coaching institute, minimum one
sq. meter, area should be for each student.
(2) Other facilities- Under this, the following
facilities, shall be made available by every
coaching institute :- ( i) Sufficient furniture
(bench/desk etc); (ii) Sufficient lighting
arrangement ( electrification); (iii) Facility of
drinking water; (iv) Facility of toilets; (v) Facility
of sanitation and cleanliness; (vi) Arrangement for
fire extinguisher; (vii) Medical treatment facility;
(viii) Facility of parking of cycles/ vehicles;
10
Note- The State Government may provide
available infrastructure to a coaching institution
for coaching on specified terms and conditions."
Section 4 :
"Authority- (1) Registration certificate will be
given within thirty (30) days of application, by the
committee constituted under the chairmanship of
the District Magistrate, after examination on the
basis of conditions of registration under Section-3.
In case of rejection of application submitted for
registration certificate, copy of the reasoned order
to that effect shall be given to the applicant. A
Registration Committee shall be constituted
consisting of the following-
(a) District Magistrate- Chairman
(b) Superintendent of Police- Member
( c ) District Education Officer- Member Secretary
( d ) Principal ( Costituent college)- Member
Note:- The Principal of constituent college
situated at the district headquarter shall be
member. In case of more than one college, they
shall be nominated by the district magistrate for
one year by rotation.
(2) Soon on completion of 3 years of registration,
for renewal of registration, the coaching institute
shall apply in prescribed form with Rs.3,000/-
(Three thousand) registration fee."
Section- 6
"Penalty- (1) Under this Act, the authority
shall have the power of civil courts. The authority
shall have such power which is vested in the courts
under civil procedure code 1908 (V of 1908) for
consideration of any suit namely:-
(i) To accept evidence with proof through
affidavit;
(ii) To summon and to enforce attendance of any
person, and his examination on oath;
(iii) To enforce production of records; and
(iv) To award cost.
(2) In case of violation of any provision of this Act
11
or the rules and notification issued under this Act;
the coaching institute shall be liable to penalty as
follows:-
(i) Rs. 25,000/- for the first offence.
(ii) Rs. 1,00,000/- shall be for the second offence;
(iii) In case of proof of allegations against the
coaching institute after the second offence, the
registration shall be cancelled by the Committee
constituted for registration, after show-cause and
giving sufficient opportunity of hearing."
8. Article 19 (1) (g) is subject to Article 19(6) which
empowers the State, regardless of sub-clause (g) of clause (1)
of Article 19, to make any law imposing, in the interests of
the general public, reasonable restrictions on the rights
conferred by the said sub-clause, for (i) professional or
technical qualifications for any profession or carrying on any
occupation, trade or business, or (ii) carrying on by the State,
or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise. Thus, the State
has been permitted by the Constitution to make any law
imposing reasonable restrictions on the right to practice any
profession or to carry on any occupation, trade or business.
The power to legislate in the field of education is available to
the State Legislature as noticed earlier. It is an established
proposition of law that statutes made by a competent
12
Legislature carry with them presumption of validity unless
they are shown to be invalid on account of being in
contravention of the Constitution or doctrines flowing from it.
9. Learned counsels for the petitioners have raised
serious grievance against laying down of academic
qualifications of teachers under clause (b), mentioning of
curriculum and tuition fee as per clause ( c ) as well as
requiring minimum one square meter area for each student as
per clause (d) of section 3(4) of the Act. It is the case of the
petitioners that these provisions are not reasonable restrictions
because many coaching institutes will be unable to meet
these requirements, hence they are not regulatory but
prohibitory and that such restrictions are unnecessary as well
as unreasonable.
10. On behalf of State, by way of reply, it has been
submitted that the aforesaid grievances merely question the
wisdom of the Legislature and are not sufficient to rebut the
presumption in favour of constitututionality of the Act.
Placing reliance upon judgment of Supreme Court in the case
of Ram Krishna Dalmia Vrs. Justice S.R. Tendolkar, (1958)
SCC 538. relevant part of which is quoted in paragraph 19 of
13
Supreme Court Judgment in the case of State of Bihar Vrs.
Bihar Distillery Ltd and others (1997) 2 SCC 453, it has been
submitted that the petitioners have a heavy burden to show
that there has been a clear transgression of the
constitutionality principle and they have failed to discharge
such a burden. According to State the purpose of the Act is to
improve the services of private coaching institutes to help the
students and in fact, the Act was enacted on account of a sad
experience in the recent past when adversely affected students
violently protested against their exploitation by private
coaching institutes. A public interest litigation filed against
State of Bihar by Yuva Shakti Punaichak bearing C.W.J.C.
No. 3673 of 2010, was disposed of by a Division Bench of
this Court on 20th April, 2010 after noticing that the matter
raised was of genuine public interest and that a Bill for
enactment of the Act had already been introduced by the State
Legislature to achieve the purpose for which public interest
litigation was filed on behalf of the students. In such a factual
background, a quotation in paragraph-19 in the case of State
of Bihar Vrs. Bihar Distillery Ltd. (supra) was rightly
highlighted to support the reasonableness of the impugned
14
provisions of the Act. The relevant part from the aforesaid
judgment may usefully be quoted here. It runs thus:-
"(e) that in order to sustain the presumption of
constitutionality the court may take into
consideration matters of common knowledge,
matters of common report, the history of the
times and may assume every state of facts
which can be conceived existing at the time of
legislation; and ..."
11. In our considered view, laying down of academic
qualifications of teachers, as per wisdom of the Legislature,
the requirement to issue a prospectus mentioning different
curriculum/ duration of completion of curriculum and tuition
fee as well as most of the provisions for basic physical
infrastructure including requirement of minimum one square
meter area for each student in a class can not be held
unreasonable . Under Regulations framed by The National
Council For Teacher Education Act, 1993 such minimum
area for trainee teachers is three square meters. Hence, in our
view the aforesaid conditions are reasonable restrictions to
achieve the purpose of the Act which is to control and
regulate private coaching institutes so that they may provide
better academic support to the students and may not
devastate the students by initially making lofty promises and
15
thereafter giving highly dissatisfactory performance
disclaiming all the promises.
12. So far as provision for other facilities under clause (d)
of Section 3(4) are concerned, on behalf of petitioners it was
submitted that facility of sanitation, cleanliness and medical
treatment are too vague and on the ground of violation of
such provisions the coaching institutes may be put to serious
peril because there are no objective standards or extent of
required facility mentioned in the Act. In reply, learned
counsel for the State assured the Court and the petitioners
that the facility of sanitation and cleanliness would require
only the minimal extent of sanitation and cleanliness as
prevailing in any such institution or educational institution of
the area. No breach of such a clause would arise if the
premises are kept free from unusual garbage or dust. So far
as medical facility is concerned, a similar reasonable stand
was taken on behalf of the State. It was submitted that
medical treatment facility would be treated to be sufficient if
First Aid Box is maintained and it would be desirable that if
the area has doctor in the vicinity, then the facility of doctor
on call is maintained.
16
13. In the light of fair stand and concessions mentioned
above on behalf of State, the necessary details in respect of
clause for sanitation and cleanliness and medical treatment
facility would stand supplemented as per aforesaid stand of
the State because Section 10 of the Act vests power in the
Government to issue any clarification or rectification of
doubts and difficulties under this Act. The State Government
shall act as per its stand noted above and shall, if found
necessary, indicate such stand in the rules or by issuing
necessary clarification.
14. So far as section 4 is concerned, some of the
petitioners have taken a stand that in the constitution of the
"Authority" only 50% members are from the field of
academics whereas their number should have been more and
the inclusion of Superintendent of Police is not fair because it
would give opportunity to the police to interfere with the
working of the private coaching institutes. We do not find
any arbitrariness or unreasonableness in the aforesaid
provisions which only reflect the wisdom of the Legislature.
15. So far as provision for penalty under section 6 is
concerned, sub-section (2) of section 6 has been attacked and
17
its constitutionality has been challenged on the ground that no
procedure has been laid down for imposition of penalty under
clause ( i ) or clause (ii ) relating to the first offence or the
second offence and the procedure of show cause notice and
sufficient opportunity of hearing is confined only for
imposition of penalty under clause (iii) which relates to
allegation after second offence. Secondly it has been
submitted that private coaching institutes having less number
of students, such as ten may find impossible to pay fine of
Rs.25,000/- for the first offence and Rs.1,00,000/- for the
second offence when penalty has been provided for violation
of any provision of the Act. Illucidating these grievances it
has been submitted that if on a particular date the premises
are found not to be properly cleaned or drinking water is
found inadequate or lacking, the authorities have not been
given any discretion to impose any fine less than Rs.25,000/-
for the first offence and Rs.1,00000/- for the second offence.
16. Learned counsel for the State has again adopted a
fair standand has conceded that Rs.25,000/- and Rs.1,00,000/-
may be clarified to be the maximum fine for the first and
second offence respectively and that the competent authority
will have discretion to impose even lesser penalty which will
18
be only up to Rs.25,000/- for the first offence and up to
Rs.1,00000/- for second offence. He has also fairly conceded
that the procedure of show cause notice and giving sufficient
opportunity of hearing as provided under clause (iii) shall also
govern and be applicable to imposition of any penalty for the
first offence or for the second offence. In other words it has
been conceded that the words " after show cause and giving
sufficient opportunity of hearing" occurring at the end of
clause (iii) shall govern clause (i) and clause (ii) also, so far
as imposition of any penalty under section 6(2) is concerned.
17. In view of concession made on behalf of State as
noticed above, we do not find any reason to declare the
provisions under section 6(2) of the Act as contrary to Article
14 of the Constitution. It is again made clear that the
aforesaid concessions and clarifications shall bind the State
Government who would be well advised to make the position
clear through Rules or Clarifications.
18. As a result of aforesaid discussions, it is found
and held that the Act in question does not suffer from
unconstitutionality and no part of it can be declared ultra
vires. We again make it clear that such finding in respect of
certain provisions in section 3(4) and 6(2) is on account of
concessions made on behalf of the State and the State
Government shall be bound by such concessions. It is
expected that the position arising on account of such
concessions shall be made clear through the Rules or
clarifications under section 10 of the Act.
19
19. As a result all the writ petitions stand dismissed but
there shall be no order as to costs.
( Shiva Kirti Singh, J.)
I agree
Dr. Ravi Ranjan, J ( Dr. Ravi Ranjan,J)
Patna High Court, Patna
Dated the 4th February, 2011
NARESH/AFR