Purushotam Institute of Engineering and Technology, Rourkela and anr. Vs. State of Orissa and ors. - Court Judgment

Excerpt:
[mr. justice s.n.satyanarayana, j.] this mfa is filed under order.43 rule l(r) and section 104 of code of civil procedure against the order dated 24.02.2010 passed on ia dated 27.01.2009 in o.s.no.8609/2006 on the file of the xxii additional city civil judge, bangalore partly allowing the ia filed under order xxxix, rule 1 & 2 of code of civil procedure.1. the petitioner no.1 is a professional institution imparting courses in engineering and technology. it is revealed from the facts of the case that the petitioner no. 1 charged certain amounts from one of the students for purchase of a laptop to be provided to her. the policy planning body constituted under the orissa professional educational institutions (regulation of admission and fixation of fee) act, 2007 (for short, 'the act') coming to know about the same, issued a notice as contemplated under section 5 (2) of the act, calling upon the petitioners to appear before the policy planning body and show cause to the complaint received by it. upon hearing the same, after filing of the show cause by the petitioners, a recommendation was made by the policy planning body to the government as per its resolution in the proceeding dated 27.5.2009 for imposing a fine of five times the fees charged by the petitioner no. 1 institution which comes to rs. 5.40 lakhs. the policy planning body further decided to recommend to the government to give compensation of rs. 1.08 lakhs to the candidates out of the fine, as compensation for the lost of one year and to meet the expenditure of her study. on such recommendation being made, the government in its industries department passed an order on 24.7.2009 (annexure-1), the operative part of which reads as follows:-whereas, after hearing both the parties and after going through the written statement of both the parties, the policy planning body vide its proceeding dtd. 27.5.2009 came to the conclusion that the management of purushottam institute of engineering and technology, rourkela have contravened the provisions of the sub-section -1 of section 5 of the said act and recommended to government for imposing a fine of 5 times the fee charged by the institution which comes to rs. 5.40 lakhs. the policy planning body further recommended for a compensation of rs. 1.08 lakhs to the candidate out of the above fines as a compensation for the loss of one academic year and to meet the expenditure of her further study.after careful consideration of the recommendation of the ppb government have been pleased to order that the management of purushotam institute of engineering & technology, rourkela is to pay a fine of rs. 5.40 lakhs out of which rs. 1.08 lakh is to be paid to the candidate as compensation for the lost of one academic year and to meet the expenditure of her future study. further government has also decided in pursuance of their power u/s 14 read with section 4 (10) that the institution be debarred from admitting fresh students verom the academic session 2009-10."2. it is submitted at the bar that the petitioners have already paid the amount of rs. 5.40 lakhs, which is not disputed and is on record. the grievance of the petitioners is with regard to the portion of the order where the government decided that in pursuance of their power under section 14 read with section 4 (10), the institution is debarred from admitting students from the academic session 2009- 10. pursuant to the interim order passed by this court on 29.7.2009, the petitioner no. 1 institution was permitted to take part in the counselling and admitted students for the session 2009- 2010.3. mr. patnaik, learned counsel for the petitioners vehemently submits that the said portion of the order, as stated above, passed by the government, is wholly without jurisdiction and contrary to the provisions of the act. he submits that section 14 of the act does not contemplate imposition of such a bar on any institution by the government and the only provision under which such fine/penalty can be imposed has been made in section 4 of the act.4. mr. senapati, learned counsel for the state, on the contrary, submits that the preamble of the act clearly states that taking into consideration the decision in the case of islamic academy of education and others v. state of karnataka, air 2003 sc 3734 and p.a. inamdar and others v. state of maharastra , air 2005 sc 3226, the act was legislated for regulatory measures aimed at protecting the interest of the student community as a whole and in maintaining required standards of professional education on non-exploitative terms and to prevent mal practice by any institute. he further submits that as held by the apex court in the aforesaid cases, the act has been legislated to prevent charge of capitation fees directly or indirectly or in any form and to check charging of such capitation fees and profiteering. section 4 of the act deals with constitution of the policy planning body and its powers. the relevant clauses of section 4 for the purpose of this care are clauses - 8, 9 and 10, which are as follows:-"4. (1) the government shall constitute a body to be known as the policy planning body consisting of following members nominated by it, namely;-(a) to (h) (2) to (7) (8) the policy planning body may hear complaints with regard to admission in contravention of the provisions of this act or rules or orders or guidelines made thereunder and if the policy planning body after making enquiry, in the manner prescribed, finds that there has been any such contravention in admission on the part of any private professional educational institution, it shall make appropriate recommendations to the government for imposing fine on such institution and the government may on receipt of such recommendation, impose fine not exceeding rupees ten lakhs on such institution in case of each such contravention.(9) the government shall collect the fine along with the interest thereon in such manner and subject to such conditions as may be prescribed.(10) in addition to the penalty that may be imposed under sub-section (8), the policy planning body may also(a) declare the admission made in respect of any or all seats in a particular professional educational institution to be invalid;(b) recommend to the university or statutory body concerned for withdrawal of affiliation or recognition, as the case may be of such institution". section 14 of the act provides as follows:-"14.(1) the government may give such directions to any private professional educational institution as in its opinion are necessary or expedient for carrying out the purpose of this act or give effect to any of the provisions contained therein or in any rules or orders made there under and the management of such institution shall comply with every such direction.(2) the government may also give such directions to the officers or authorities under its control which in its opinion are necessary or expedient for carrying out the purpose of this act."5. a bare reading of the section 4 (8) (9) and (10) of the act clearly shows that it is for the policy planning body to recommend to the government for imposing fine on deciding a complaint. the complaint filed, if any, is to be dealt with as provided under section 5 (2) of the act.6. reading of section 14 of the act discloses that government is authorized to issue direction to any private professional educational institution as in its opinion are necessary or expedient for carrying out the purpose of the act or to give effect to any of the provisions contained in the act or the rules framed there under or orders made there under which the management of the institution is to comply. section 14 does not contemplate any power or jurisdiction of the government to pass an order debarring an institution from giving admission to students in a particular session where the institution is an approved institution of the aicte and is authorized to give admission to students. debarring an approved institution from giving admission to students is definitely a penal measure and cannot be termed as a regulatory measure.7. it is, therefore, clear that the direction of the government in the impugned order debarring the petitioner no.1 institution from giving admission to the students for the academic session 2009-2010 is contrary to the provisions of the act and, hence, is found to be wholly without jurisdiction. the said portion of the order is, therefore, liable to be quashed. admission of the students for the session 2009- 2010 pursuant to the interim order shall be held to be legal and valid for all purposes.8. in view of the above, the portion of the impugned order dated 24.7.2009 under annexure-1 to the effect that "further government have also decided in pursuance of their power under section 14 with section 4(10) that the institution be debarred from admitting fresh students from the academic session 2009-2010" is quashed.9. the writ petition is accordingly allowed, but in the circumstances without cost. writ petition allowed.

Judgment:
1. The petitioner no.1 is a professional institution imparting courses in Engineering and Technology. It is revealed from the facts of the case that the petitioner no. 1 charged certain amounts from one of the students for purchase of a LAPTOP to be provided to her. The Policy Planning Body constituted under the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007 (for short, 'the Act') coming to know about the same, issued a notice as contemplated under section 5 (2) of the Act, calling upon the petitioners to appear before the Policy Planning Body and show cause to the complaint received by it. Upon hearing the same, after filing of the show cause by the petitioners, a recommendation was made by the Policy Planning Body to the Government as per its resolution in the proceeding dated 27.5.2009 for imposing a fine of five times the fees charged by the petitioner no. 1 institution which comes to Rs. 5.40 lakhs. The Policy Planning Body further decided to recommend to the Government to give compensation of Rs. 1.08 lakhs to the candidates out of the fine, as compensation for the lost of one year and to meet the expenditure of her study. On such recommendation being made, the Government in its Industries Department passed an order on 24.7.2009 (Annexure-1), the operative part of which reads as follows:-

Whereas, after hearing both the parties and after going through the written statement of both the parties, the Policy Planning Body vide its proceeding dtd. 27.5.2009 came to the conclusion that the Management of Purushottam Institute of Engineering and Technology, Rourkela have contravened the provisions of the sub-section -1 of section 5 of the said Act and recommended to Government for imposing a fine of 5 times the fee charged by the institution which comes to Rs. 5.40 lakhs. The Policy Planning Body further recommended for a compensation of Rs. 1.08 lakhs to the candidate out of the above fines as a compensation for the loss of one academic year and to meet the expenditure of her further study.

After careful consideration of the recommendation of the PPB Government have been pleased to order that the Management of Purushotam Institute of Engineering & Technology, Rourkela is to pay a fine of Rs. 5.40 lakhs out of which Rs. 1.08 lakh is to be paid to the candidate as compensation for the lost of one academic year and to meet the expenditure of her future study. Further Government has also decided in pursuance of their power u/s 14 read with section 4 (10) that the institution be debarred from admitting fresh students verom the academic Session 2009-10."

2. It is submitted at the Bar that the petitioners have already paid the amount of Rs. 5.40 lakhs, which is not disputed and is on record. The grievance of the petitioners is with regard to the portion of the order where the Government decided that in pursuance of their power under section 14 read with section 4 (10), the institution is debarred from admitting students from the academic session 2009- 10. Pursuant to the interim order passed by this Court on 29.7.2009, the petitioner no. 1 institution was permitted to take part in the counselling and admitted students for the session 2009- 2010.

3. Mr. Patnaik, learned counsel for the petitioners vehemently submits that the said portion of the order, as stated above, passed by the Government, is wholly without jurisdiction and contrary to the provisions of the Act. He submits that section 14 of the Act does not contemplate imposition of such a bar on any institution by the Government and the only provision under which such fine/penalty can be imposed has been made in section 4 of the Act.

4. Mr. Senapati, learned counsel for the state, on the contrary, submits that the Preamble of the Act clearly states that taking into consideration the decision in the case of Islamic Academy of Education and others v. State of Karnataka, AIR 2003 SC 3734 and P.A. Inamdar and others v. State of Maharastra , AIR 2005 SC 3226, the Act was legislated for regulatory measures aimed at protecting the interest of the student community as a whole and in maintaining required standards of professional education on non-exploitative terms and to prevent mal practice by any institute. He further submits that as held by the apex Court in the aforesaid cases, the Act has been legislated to prevent charge of capitation fees directly or indirectly or in any form and to check charging of such capitation fees and profiteering. Section 4 of the Act deals with constitution of the Policy Planning Body and its powers. The relevant clauses of Section 4 for the purpose of this care are Clauses - 8, 9 and 10, which are as follows:-

"4. (1) The Government shall constitute a body to be known as the Policy Planning Body consisting of following members nominated by it, namely;-

(a) to (h) (2) to (7)

(8) The Policy Planning Body may hear complaints with regard to admission in contravention of the provisions of this Act or rules or orders or guidelines made thereunder and if the Policy Planning Body after making enquiry, in the manner prescribed, finds that there has been any such contravention in admission on the part of any private professional educational institution, it shall make appropriate recommendations to the Government for imposing fine on such institution and the Government may on receipt of such recommendation, impose fine not exceeding rupees ten lakhs on such institution in case of each such contravention.

(9) The Government shall collect the fine along with the interest thereon in such manner and subject to such conditions as may be prescribed.

(10) In addition to the penalty that may be imposed under sub-section (8), the Policy Planning Body may also

(a) declare the admission made in respect of any or all seats in a particular professional educational institution to be invalid;

(b) recommend to the University or Statutory body concerned for withdrawal of affiliation or recognition, as the case may be of such institution". Section 14 of the Act provides as follows:-

"14.(1) The Government may give such directions to any private professional educational institution as in its opinion are necessary or expedient for carrying out the purpose of this Act or give effect to any of the provisions contained therein or in any rules or orders made there under and the management of such institution shall comply with every such direction.

(2) The Government may also give such directions to the officers or authorities under its control which in its opinion are necessary or expedient for carrying out the purpose of this Act."

5. A bare reading of the section 4 (8) (9) and (10) of the Act clearly shows that it is for the Policy Planning Body to recommend to the Government for imposing fine on deciding a complaint. The complaint filed, if any, is to be dealt with as provided under section 5 (2) of the Act.

6. Reading of section 14 of the Act discloses that Government is authorized to issue direction to any private professional educational institution as in its opinion are necessary or expedient for carrying out the purpose of the Act or to give effect to any of the provisions contained in the Act or the Rules framed there under or Orders made there under which the Management of the institution is to comply. Section 14 does not contemplate any power or jurisdiction of the Government to pass an order debarring an institution from giving admission to students in a particular session where the institution is an approved institution of the AICTE and is authorized to give admission to students. Debarring an approved institution from giving admission to students is definitely a penal measure and cannot be termed as a regulatory measure.

7. It is, therefore, clear that the direction of the Government in the impugned order debarring the petitioner no.1 institution from giving admission to the students for the academic session 2009-2010 is contrary to the provisions of the Act and, hence, is found to be wholly without jurisdiction. The said portion of the order is, therefore, liable to be quashed. Admission of the students for the session 2009- 2010 pursuant to the interim order shall be held to be legal and valid for all purposes.

8. In view of the above, the portion of the impugned order dated 24.7.2009 under Annexure-1 to the effect that "further Government have also decided in pursuance of their power under section 14 with section 4(10) that the institution be debarred from admitting fresh students from the academic session 2009-2010" is quashed.

9. The writ petition is accordingly allowed, but in the circumstances without cost. Writ petition allowed.