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2007 Supreme(Ori) 395
2007 (Supp.-I) OLR — 941
THE CHIEF JUSTICE AND N. PRUSTY, J.
Orissa Management Colleges Association
(W.P.(C) No.2446/07)
Kanakmanjari Trust (W.P.(C) No. 3203/07)
Orissa Private Medical and Dental
Colleges Association (W.P.(C) No. 3689/07)
Orissa Private Engineering Colleges
Association (W. P. (C) No. 4073/07)...Petitioner
Versus
State of Orissa (W.P.(C) No. 2446/07)
State of Orissa and anr. (W.P.(C) No. 3203/07)
State of Orissa (W.P. (C) No. 3689/07)
Union of India and
State of Orissa (W.P.(C) No. 4073/07 )...Opp. Parties
W.P. (C) Nos. 2446, 3203, 3689 and 4073 of 2007
(Date of Judgment : 18.5.2007)
For Petitioner:Mr. G. Rath, Senior Advocate & Miss Pami Rath
M/s. Umesh Chandra Pattnaik, S.D. Mishra, N .R. Rout, S. Patnaik (W.P.(C) No. 2446/07)
M/s. V. Narasingh & S. K. Senapati (W.P.(C) No.3203/07)
M/s. Amitav Bagchi, D. Nanda & G.Sabar (W.P.(C) No.3689/07)
Mr. A.K.Ganguli, Senior Advocate
M/s. D.K. Dey, S.K.Ghosh, C.K. Dey & A.K.Das. (W. P.(C) No. 4073/07)
For Opp. Parties:Mr. J. M. Mohanty, Government Advocate.
Mr. J. K. Mishra, Asst. Solicitor General
(for O.P. No.1 in W.P.(C) No. 4073/07)
Headnote:CONSTITUTION OF INDIA, 1950 - Art. 19(1)(g), 254 - Constitutional validity of the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Ordinance, 2007 which was replaced by Act and came to be known as Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007 challenged in writ - The abolition of admission procedure carried out by petitioners commonly known as 'CET' and the total control of the fee structure are the two principal areas of challenge - Discussing the facts contention and decided cases held, the procedure for admission which has been made applicable in the case of all the private colleges and the consent of the private colleges has not been taken - In matters of admissions to the institutions of higher education run by the petitioner the State cannot introduce an admission procedure by completely abolishing the admission procedure prescribed under the AICTE Regulations - Admission authority which has been allegedly created under the said Act is purporting to admit students in a manner which is not approved by the AICTE and as such there is a clear encroachment by the said Act upon the areas covered by the Central law - The State Government has not been given any such delegated authority nor is the State Government acting as a delegated authority of the Central Government under the said Act - The said Act has been enacted by the State Government independently - This independent legislative power cannot be exercised by the State in view of the fact that the field of Higher and Technical Education is covered by Central enactments in exercise of its power under Entry 66 of List I and various Regulations under such Central law is governing the field - State law cannot set up a fee structure, committee by encroaching upon the area which is occupied by the Central law - Held, in the instant case the State has not followed the provisions of Art. 254 of the Constitution while enacting the said Act - States power to legislate in the field of higher and technical education shows only from Entry 25 of the concurrent list and the field it occupies by various Central Laws - The requirement of following Article 254 (2) on the part of the State legislature was a constitutional imperative - In the said Act the provision of Art. 254(2) has not been followed - The Act is unconstitutional and cannot be sustained - Orissa Professional Educational Insitutions (Regulation of Examination and Fixation of Fees) Act, 2007 as enacted is unconstitutional and is struck down as inoperative and invalid and not binding on the petitioners - Direction issued.
JUDGMENT
A. K. GANGULY, CJ. : Four writ petitions have been filed challenging constitutional validity of the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Ordinance, 2007 ( hereinafter referred to as the “said Ordinance”). During the course of hearing of the matter before the Court, the said Ordinance was replaced by an Act and came to be known as Orissa Professional Educational Institutions (Regula¬tion of Admission and Fixation of Fee) Act, 2007 ( hereinafter referred to as the “said Act”). Out of the four writ petitions, in W.P.(C) No. 4073 of 2007 Article 15(5) of the Constitution which has come by way of 93rd Amendment to the Constitution has also been challenged. Learned counsel for the petitioner, however later on gave up the said challenge.
2. But, in all these writ petitions the constitutional validity of the said Ordinance as replaced by the said Act was challenged.
3. First of these four writ petitions was registered as W.P.(C) No. 2446 of 2007, which was filed by the Orissa Manage¬ment Colleges Association. That is an Association of 22 Private Unaided Professional Educational Institutions claiming to impart education in management studies and the said Association is registered under the Societies Registration Act, 1860. The writ petitioner in W.P.(C) No. 3203 of 2007 is Kanakmanjari Trust, a Trust established to impart education in Pharmacy through its private unaided educational institution, which is in existence since 1982. The petitioner in W.P.(C) No. 4073 of 2007 is also a registered Association under the Societies Registration Act, 1860 and is an Association of Private Unaided Engineering Colleges of Orissa and is engaged in imparting education in different courses in the subject of Engineering and Management. The petitioner in W.P.(C) No. 3689 of 2007 is an Association of Private Unaided Medical and Dental Colleges in Orissa claiming to impart educa¬tion from the academic session 2006-07 to the Medical students and claiming to impart education to Dental students from 2005-06. Since in all the writ petitions, the point of law is the same and the questions of fact are almost identical, by this common judg¬ment all those questions are decided.
4. It has been common case of all the petitioners that all the institutions have been established after obtaining necessary permission and approval of All India Council for Technical Educa¬tion as also of the Medical Council of India and Dental Council of India, as the case may be. All these Councils have been con¬stituted under the Central Laws and all such Central Laws empower the concerned Council to frame Regulations from time to time. The admission to different institutions are covered by such Regula¬tions.
5. It is not in dispute that being guided by such Regula¬tions, all these petitioners were carrying on admission procedure which was commonly known as Common Entrance Test ( hereinafter referred to as “CET”). The Government, in so far its own institu¬tions are concerned, was also carrying on admission under Joint Entrance Examination (Engineering & Medical) ( hereinafter re¬ferred to as “JEE (E&M)”). Both CET and JEE (E&M) were simultane¬ously going on. The holding of test known as CET at the instance of the private unaided Engineering educational institutions in the last year (2006) has been sought to be abolished under the Ordinance, later on replaced by the said Act: The said abolition of admission system and the total control of the fee structure are the two principal areas of challenge.
6. Learned counsel for all the petitioners have challenged the provisions of the said Act on two principal grounds except the learned counsel for the petitioners in W.P.(C) No. 3689 of 2007. Mr. Bagchi, the learned counsel arguing for the petitioner in that case did not urge that State has no legislative compe¬tence to enact the said Act. Mr. Bagchi, urged that in view of the decision of the Supreme Court in the case of T.M.A. Pai f
