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2016 Supreme(Pat) 1322

IN THE HIGH COURT OF PATNA
I.A. Ansari, Chakradhari Sharan Singh, JJ.
Mirza Ghalib T.T. College, Patna through its Secretary Md. Aquil Haider and Ors. - Petitioner
Versus
The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna and Ors. - Respondent
Civil Writ Jurisdiction Case No. 17664 of 2015, 635, 9634, 9678, 9764, 4665, 9922, 10039, 9956, 9175, 8216, 8536, 8942, 8954, 9033, 9174, 9604, 2957, 3425, 6756, 7074, 7222, 6895, 8396, 7815, 7581, 7584, 8545, 8417, 824, 3154, 3087, 2921, 3991, 4070, 2979 of 2016
Decided On : 27-10-2016

Advocates Appeared:
For the Petitioner: Mr. Rajendra Pd. Singh, Mr. Rajeev Kumar Singh
For the Respondent: Mr. D.K. Sinha
For the University : Mr. K.N. Singh, Mr. Vipin Kumar Girijesh Kumar

Headnote:University Laws–Bihar State Universities Act, 1976–Sections 38 (4) and 39 (2) r/w Patna University Act–Constitution of India–Articles 19 (1) (8), 29 and 30–Right of professional institutions to establish, administer and manage educational institutions–”Regulation and Ordinance for Admission in two year Bachelor of Education (Secondary) Programe under Universities of Bihar–procedure for admission to unaided privately managed professional minority and non-minority institutions and their fee structure–no illegality or unconstitutionality in prescribing for Common Entrance Test, to be held by a University for the institutions conducting B.Ed. programme, under the said particular university, on the basis of merit-list, so obtained, and allotment of seats through conseling–provisions in the Odinance to that extent are not violative of any constitutional provision or other statutory exactment–admission not taken on the basis of Common Entrance Test is in violation of law declared by the Constitution Bench of Supreme Court–the Chancellor of the Universities of Bihar shall have power to permit an institution, which has been established and permitted to adopt its admission own procedure for the last, at least, 25 years, against which no finger has ever been raised and no complaint made regarding fairness, to adopt its own procedure–regarding fee structure in State Level Committee is proposed to decide however, the fee structure changeable from the students for the two years prescribed in the Ordinance at Rs. 95000/- is without any basis and unsustainable. (Paras 70, 71 & 73)

       (2002)8 SCC 481, (2016)7 SCC 353, (2003)6 SCC 697, (2005)6 SCC 537, (2004)5 SCC 583–Referred.

JUDGMENT AND ORDER :

Chakradhari Sharan Singh, J.

There is a common challenge, in the present batch of writ applications, filed under Article 226 of the Constitution of India, to "Regulation and Ordinance for Admission in two-Year Bachelor of Education (Secondary) Programme under Universities of Bihar" (hereinafter referred to as the "Ordinance/Regulation"), 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 Patna University Act, 1976, to the extent it lays 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.

2. We will be dealing with the rival stands, which have been taken in the present proceedings, in detail, at a later stage, but we can safely indicate, at the outset, that the challenge is fundamentally on the ground of violation of Articles 19(1)(g), 29 and 30 of the Constitution of India in the perspective of the law laid down by the Supreme Court, in the case of T. M. A. Pai Foundation and Others v. State of Karnataka, reported in (2002) 8 SCC 481. Unreasonableness and arbitrariness, lack of rationale in the matter of laying down criteria for charging fees, including tuition fee and development fee, etc., are also the grounds, which have been taken in the present proceedings. Since the primordial legal issues, which the present batch of writ applications involve, are common, the cases have been heard together with the consent of the parties and are being disposed of by the present common judgment and order.

3. There are two categories of privately managed institutions, which have approached this Court, viz., unaided minority institutions and unaided non-minority institutions, engaged in conducting B.Ed. course, which is admittedly a professional course.

4. Though submissions at length have been advanced on behalf of the parties at the bar, for the purpose of convenience and clarity, we have referred to the pleadings in CWJC No. 7222 of 2016, preferred by Bihar State Minority Education College Association, Millat Teachers Training College, Madhubani and Mithila Teachers Training College, Madhubani, which claim to be minority institutions.

5. During the pendency of these writ applications, on prayers being made on behalf of the petitioners in different writ applications, we had allowed the institutions to admit students in B. Ed. Course, but subject to the outcome of the present proceedings and/or subject to such further orders, which may be passed therein by interim orders.

6. For ready reference, we extract here in below the order, dated 13.05.2016, passed by this Court, in CWJC No. 7222 of 2016, which reads thus:

"Heard Mr. B. P. Pandey, learned Senior Counsel, appearing for the petitioners, and Mr. Lalit Kishore, learned Principal Additional Advocate General, appearing for the State. Heard also Mr. S.N. Pathak, learned Counsel, appearing for the respondent-NCTE.

Having regard to the facts, which have been made available on record, and the nature of reliefs, which have been sought for by the petitioners, we hereby, as an interim measure, allow, in the interest of justice, the petitioners to admit students in B.Ed. course subject to the outcome of this writ petition and/or subject to such further or other orders, which may be passed in this writ petition.

The respondents shall remain at liberty to apply for modification or cancellation of the interim order, which has been passed herein above.

List this case, on 24.06.2016, along with C.W.J.C. No. 17664 of 2015, under the same heading, retaining its position."

7. Almost identical interim orders had been passed in other cases also.

8. The




















































































































































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