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PATNA HIGH COURT
NAGENDRA RAI, J.
Sanjay Gandhi Polytechnic, Madhubani & anr. - Petitioners
Vs.
The State of Bihar & ors. - Respondents
C.W.J.C. No. 6045 of 1990
Decided on : 7.5.1999
EDUCATION - RECOGNITION OF TECHNICAL INSTITUTIONS - APPROVAL/RECOGNITION OF TECHNICAL INSTITUTIONS VESTS IN ALL INDIA COUNCIL FOR TECHNICAL EDUCATION - STATE GOVERNMENT HAS NO ROLE TO PLAY - STATE ACT INCONSISTENT WITH CENTRAL ACT AND REGULATION VOID - APPLICATION TO BE FILED BEFORE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION - COUNCIL TO CONSIDER AND TAKE FINAL DECISION WITHIN NINE MONTHS.
Fact of the Case:
Petitioners, a society registered under the Societies Registration Act, established a polytechnic for imparting technical education. They applied for permission and recognition of the institution before the State Government under the Bihar State Engineering and Pharmacy Education Institutions (Regulation and Control) Act, 1982. The State Government referred the application to the All India Council for Technical Education (AICTE) for approval/recognition. However, before receiving any communication from AICTE, the State Government rejected the application on the ground that the petitioners did not furnish necessary information regarding the fulfillment of guidelines laid down by AICTE. The petitioners challenged the rejection order and the order directing the closure of the institution.
Finding of the Court:
The court held that the State Government had no power to reject the application for recognition till a decision was taken by AICTE. The impugned orders were quashed on this ground. The court further held that after the enactment of the All India Council for Technical Education Act, 1988, the question of approval/recognition of technical institutions vested in AICTE and the State had no role to play except the function to be carried out by the State Level Committee and the University in terms of the provisions.
Issues: 1. Whether the State Government had the power to reject the application for recognition of the institution before receiving a decision from AICTE? 2. Whether the State Government had the power to close the institution? 3. Whether the provisions of the State Act were inconsistent with the provisions of the Central Act and Regulation?
Ratio Decidendi: 1. The court held that the State Government had no power to reject the application for recognition till a decision was taken by AICTE. This was because Section 6 of the State Act required the State Government to consider whether the necessary guidelines fixed by AICTE had been fulfilled by the institution and, if not, to reject the application. However, in this case, the State Government had rejected the application without awaiting the decision of AICTE. 2. The court held that the State Government had no power to close the institution. This was because the State Act did not confer any such power on the State Government. 3. The court held that the provisions of the State Act were inconsistent with the provisions of the Central Act and Regulation. The Central Act provided that AICTE was the only competent body to grant approval and that any State law that encroached upon the legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List would be void and inoperative.
Final Decision: The court allowed the writ petition and quashed the impugned orders. It directed the petitioners to file an application before AICTE for approval/recognition of the institution. The court also directed AICTE to consider the matter and take a final decision within nine months from the date of filing of the application.
Nagendra Rai, J.- The petitioners have filed the present writ petition for quashing the order dated 25.4.1990 issued under the signature of Secretary, Science and Technology by which the State Government has directed the District Magistrate, Madhubani to close the petitioners institution as the prayer for its recognition has been rejected and also for quashing the order dated 30.4.1990 by which the application for recognition/approval filed by the petitioners under the provisions of Bihar State Engineering and Pharmacy Education Institutions (Regulation and Control) Act, 1982 (hereinafter to be referred to as the Act) has been rejected under Section 6 (II) of the said Act as the petitioners did not furnish the necessary information in terms of the guidelines issued by the All India Council for Technology Education. Both the impugned orders have been annexed as annexures-12 and 12/1 respectively to this writ petition.
2. The necessary facts which are necessary for disposal of the present writ petition are that Mithila Vikash Sansthan, Society registered under the Societies Registration Act, established a polytechnic named as Sanjay Gandhi Polytechnic (petitioner no.1) for imparting technical education. The petitioner no.2 is the president of the Managing Committee of petitioner no.1.
3. In the year 1981 the State Government promulgated an ordinance namely, Bihar State Engineering and Pharmacy Education Institutions (Regulation and Control) Ordinance on 27.1.1981. The said ordinance was promulgated to regulate and control opening of private Engineering Colleges, Polytechnic and Pharmacy Colleges in the State of Bihar. Section 2 of the Ordinance provided that no person or body or institution registered under the Societies Registration Act will commence in any course in Engineering or Pharmacy upto degree or diploma standard without prior permission of the State Government. For permission to open Engineering and Pharmacy College an application has to be filed under Section 3 of the Ordinance. Section 6 of the Ordinance provides for decision regarding permission to open Engineering and Pharmacy Colleges. On receipt of the Inspection report in terms of provisions of Section 5 of the Ordinance, the State Government will decide as to whether or not proposed Engineering, Polytechnic or Pharmacy College fulfils the conditions laid down by the State Government, Government of India and All India Council for Technical Education. If the institutions do not fulfil the conditions, it will reject the application for permission/recognition. If the application is not rejected, it will be sent to All India Council for Technical Education and on receipt of its recommendation the State Government will communicate its decision regarding permission.
4. The petitioner in terms of the provisions of the Ordinance filed an application for permission as well as recognition of the institution before the State Government in the prescribed proforma as mentioned in the Ordinance. The said Ordinance was repealed and other Ordinance no. 103 of 1981 containing the similar provision except repealing 7 clause of the Ordinance was introduced. The petitioner again applied on 27.4.1981 in terms of the aforesaid ordinance. The said ordinance was substituted by an Act (63/82) which came into force on 30th July, 1982.
5. When the decision on the application filed by the petitioner was not taken, some members of the Managing Committee filed CW.J.C. No. 2589 of 1981 before this Court for a direction to the State Government to consider the question of permission and recognition of the Institution. The said writ application was disposed of on 7th December, 1981 and this Court directed the State Government to take decision with regard to the subject matter within three months and pending disposal the State Government will not interfere with regard to the functioning of the Institution. A copy of the said order has been annexed as annexure-1 to this writ petition. In the
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