vil Appeal Nos 182 1 to 1826 of 1971 etc
From the Judgment and Order dated 1181971 of the Madras High Court in Writ Petition Nos
3818 4019 4020 4254 4566 of 1968 and 82 of 1969
section Padmanabhan KR Nambiar ATM Sampath for the Appellants and Appellant in person in CA No 2062 of 1971
K Rajendra Chowdhary and V Krishnamurthy for the Respondent
The Judgment of the Court was delivered by SHARMA J
The question involved in these appeals relates to the vires of the Tamil Nadu Private Educational Institutions Regulation Act 1966 hereinafter referred to as the Act
The appellants are interested in running educa tional institutions which are covered by the expression private educational institution within the meaning of section 2f of the Act
The main challenge is directed against sections 2c 3a 3b 6 7 read with sections 15 22 and 28
The High Court struck down section 28 and upheld the other sections
That part of the judgment where section 28 374 has been declared to be invalid has not been impugned by the respondent State
The provisions of the Act which are relevant for appreciating the ground urged by the appellants are as follows
Section 3 mandatorily requires a private education al institution to obtain the permission of the competent authority for the purpose of running it
The Manager of such an institution has to as required by section 4 make an applica tion for permission in the prescribed form accompanied by a fee
Section 6 lays down the power of the competent authori ty to deal with such an application in the following terms 6
Grant of permission
On receipt of an application under Section 4 the compe tent authority may grant or refuse to grant the permission after taking into considera tion the particulars contained in such appli cation Provided that the permission shall not be refused under this Section unless the applicant has been given an opportunity of making his representation Provided further that in case of refusal of permission the applicant shall be entitled to refund to one half of the amount of the fee accompanying the application
The competent authority is empowered under section 7 to cancel the permission in certain circumstances
One of the condi tions for exercise of power is contravention of any direc tion issued by the competent authority under section 15
The power to exempt any institution from the provisions of the Act is vested in the State Government under section 22 which is quoted below 22
Power to exempt Notwithstand ing anything contained in this Act the Gov ernment may subject to which conditions as they deem fit by notification exempt any private educational institution or class of private educational institutions from all or any of the provisions of this Act or from any rule made under this Act
 Section 28 which has been declared invalid by the High Court states that if any difficulty arises in giving effect to the provisions of this Act the Government may do any thing which appears to them to be necessary for the purposes of removing the difficulty
 375 3
The Act is impugned on the ground that it does not lay down any guide line for the exercise of the power by the delegated authority as a result of which the authority is in a position to act according to his whims
The Act having failed to indicate the conditions for exercise of power the decision of the competent authority is bound to be discrimi natory and arbitrary
It has also been argued that the restrictions put by the Act on the appellants who are running tutorial institutions are unreasonable and cannot be justified under sub clause g of Article 191 of the Constitution
The learned counsel appearing for the respondent has attempted to defend the Act on the ground that sufficient guidance is available to the authority concerned from sub section 2c of section 4 which enumerates the particulars required to be supplied in the application for permission
They are 10 in number and are mentioned below 4 Application for permission
1     2 Every such application shall a      c contain the following particulars namely i the name of the private educa tional institution and the name and address of the manager ii the certificate degree or diploma for which such private educational institution prepares trains or guides or proposes to prepare train or guide its stu dents or the certificate degree or diploma which it grants or confers or proposes to grant or confer iii the amenities available or proposed to be made available to students iv the names of the members of the teaching staff and the educational qualifica tions of each such member 376 v the equipment laboratory library and other facilities for instructions vi the number of students in the private educational institution and the groups into which they are divided vii the scales of fees payable by the stu dents viii the sources of income to ensure the financial stability of the private educational institution ix the situation and the descrip tion of the buildings in which such private educational institution is being run or is proposed to be prescribed x such other particulars as may be pre scribed
The point dealing with legislative delegation has been considered in numerous cases of this Court and it is not necessary to discuss this aspect at length
It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative functions which cannot be delegated
What is permissible is to leave to the delegated authority the task of implementing the object of the Act after the legislature lays down ade quate guide lines for the exercise of power
When examined in this light the impugned provisions miserably fail to come to the required standard
The purpose of the Act is said to regulate the pri vate educational institutions but does not give any idea as to the manner in which the control over the institutions can be exercised
The Preamble which describes the Act for regulation is not helpful at all
Learned counsel for the State said that the Object and the Reasons for the Act are to eradicate corrupt practices in private educational insti tutions
The expression private educational institution has been defined as meaning any college school or other institution established and run with the object of prepar ing training or guiding its students for any certificate degree or diploma and it can therefore be readily in ferred that the purpose of the Act is to see that such institutions do not exploit the students and while they impart training and guidance to the students of a standard which may effectively improve their knowledge so as to do well at the examination they do not charge exhorbitantly for their services
But the question is as to how this objective can be achieved
Section 6 which empowers the competent 377 authority to grant or refuse to grant the permission for establishing and running an institution does not give any idea as to the conditions which it has to fulfil before it can apply for permission under the Act nor are the tests indicated for refusing permission or cancelling under section 7 of an already granted permission
The authority concerned has been left with unrestricted and unguided discretion which renders the provisions unfair and discriminatory
It was argued on behalf of the State that since an application for permission has to supply the particulars as detailed in section 42c quoted above in paragraph 4 the Act must be deemed to have given adequate guide lines
Special emphasis was given by the learned counsel on sub clauses iii iv and v of section 42c which ask for information about the amenities for the students the equip ments laboratory library and other facilities for instruc tion and the names of the teachers with their qualifica tions
It may be noted that the Act beyond requiring the applicant to make a factual statement about these matters does not direct the institution to make provisions for them or for any or some of them as condition for grant of permission
The maintenance of any particular standard of these heads are not in contemplation at all although cer tain other aspects not so important have been dealt with differently in several other sections including section 4 5 9 10 and 11
Section 42b mandatorily requires the appli cant to pay the prescribed fee section 5 gives precise direc tion regarding the name by which the institution is to be called and section 9 about the certificates to be issued by it and section 11 makes it obligatory to maintain accounts in the prescribed manner
But there is no indication whatsoev er about the legislative policy or the accepted rule of conduct on the vital issue about the maintenance of academic standard of the institution and the other requirements relating to the building library and necessary amenities for the students as the Act is absolutely silent about the criteria to be adopted by the prescribed authority for granting or refusing permission
The rules which were made under section 27 in 1968 and called the Tamil Nadu Private Educa tional Institutions Regulation Rules 1968 are not called upon to lay down any norm on these issues and naturally do not make any reference to these aspects
The result is that the power to grant or refuse permission is to be exercised according to the whims of the authority and it may differ from person to person holding the office
The danger of arbitrariness is enhanced by the unrestricted and unguided discretion vested in the State Government in the choice of competent authority defined in section 2c in the following words 378 c competent authority means any person officer or other authority authorised by the Government by notification to perform the functions of the competent authority under this Act for such area or in relation to such class of private educational institutions as may be specified in the notification The only safeguard given to the applicant institution is to be found in the first proviso to section 6 which says that the permission shall not be refused unless the applicant has been given an opportunity of making his representation but that does not by itself protect the applicant from discrimi natory treatment
So far section 7 dealing with power to cancel the permission granted earlier is concerned no objection can be taken to the first part of the section whereunder the permission may be cancelled in case of fraud misrepre sentation suppression of material particulars or contraven tion of any provision of the Act or the Rules
But the other ground on which the authority can exercise its power being contravention of any direction issued by the competent authority under this Act again suffers from the vice of arbitrariness
Section 15 the relevant section in this regard states that the competent authority may from time to time issue such directions regarding the management of a private educational institution as it may think fit empha sis added
The section is too wide in terms without indi cating the nature of such direction or the extent within which the authority should confine itself while exercising the power
Similar is the situation in the matter of exemp tion from the Act
The power to grant exemption is contained in section 22 quoted in paragraph 2 above
The provisions of the Act indicate that the State Government has been vested with unrestricted discretion in the matter of the choice of the competent authority under section 22c as also in picking and choosing the institutions for exemption from the Act under section 22
Such an unguided power bestowed on the State Government was struck down as offend ing Article 14 in the case of the State of West Bengal vs Anwar Ali Sarkar  A similar situation arose in Kunnathat Thathunni Moopil Nair vs The State of Kerala and Another   where under section 4 of the Travancore Kochin Land Tax Act 1955 all lands were sub jected to the burden of a tax and section 7 gave power to the Government to grant exemption from the operation of the Act
The section was declared ultra vires on the ground that it gave uncanalised unlimited and arbitrary power as the Act did not lay down any principle or policy for the guidance of exercise of the discretion in respect of the selection contemplated by section 7 379 9
Similar is the position under sections 6 and 7 of the present Act
The learned counsel for the respondent State contended that by reference in section 4 to the particulars to be supplied
in the application for permission it can be easily imagined that the competent authority has to take into account all that may be validly relevant for the grant or refusal of permission
We are afraid the section cannot be saved by recourse to this argument in absence of any helpful guidance from the Act
The position in this case cannot be said to be on a better footing than that of the Gold Control Act 1968 which was challenged in Harakchand Ratanchand Ranthia and Others vs Union of India and Other  As is indicated by the judgment the Gold Control Act had to be passed as gold was finding its way into the country through illegal channels affecting the national economy and hampering the country s economic sta bility and progress and the Customs department was found unable to effectively combat the smuggling
Section 276a of the said Act stated that in the matter of issue or renew al of licences the Administrator shall have regard to the number of dealers existing in the region in which the appli cant intends to carry on business as a dealer
The expres sion region was not defined in the Act and section 276b required the Administrator to have regard to the anticipat ed demand as estimated by him of ornaments in the region
The argument in support of the validity of the Act was that these provisions provided adequate guidance to the Adminis trator which this Court rejected holding that the expres sion anticipated demand was vague and not capable of objective assessment and therefore was found to lead to a great deal of uncertainty
The other provisions mentioning suitability of the applicant in section 276e and public interest in section 276g were also held to have failed in laying down any objective standard or norm so as to save the Act
The provisions of the act with which we are dealing in the present cases are far less helpful for the purpose of upholding its validity
For the reasons mentioned above the impugned sec tions of the Act must be held to be invalid
These provi sions are inextricably bound up with the other parts of the Act so as to form part of a single scheme and it is not possible to sever the other parts of the Act and save them
In the result the entire Act is declared ultra vires
The appeal is accordingly allowed but in the circumstances without costs
GN Appeal allowed


Summary:
The respondent a retired Naval Officer was apprehended at the Bombay International Airport when he was about to take a flight to New York
On search of his luggage certain highly sensitive documents were found and he was arrested for breach of the provisions of the Official Secrets Act 1923 and the 
The respondent filed a number of applications for being released on bail inter alia on medical grounds
This batch of applications were rejected by Puranik J
The attention of Puranik J was however not drawn to the pendency of one more such application in which the respondent had prayed for grant of bail to facilitate yogic exercises under expert guidance at his residence
The respondent had sought precisely the same relief in an earlier application which had been rejected by Puranik J Two days after the rejec tion of the group of bail applications by Puranik J the pending application was disposed of by Suresh J who di rected that the respondent be enlarged on bail on certain conditions which amounted to virtual house arrest
Before this Court the appellant State has assailed the propriety of the order granting bail passed by Suresh J just two days after Puranik J had rejected the batch of bail applications
On the other hand it was contended on behalf of the respondent that this Court should refrain from exercising jurisdiction under Article 136 to cancel bail granted by the High Court
Allowing the appeal this Court HELD 1 It is true that ordinarily this Court does not interfere with an order granting bail but in the facts of this case the Court feels that judicial discipline will be sacrificed at the alter of judicial discretion if the Court refused to exercise its jurisdiction under Article 136 of the Constitution
322C 316 2 When the batch of bail applications were put up before Puranik J his attention was not drawn to the pendency of one more such application
Even if the said application was filed after the hearing started before Puranik J the learned Judge could have been told about its pendency before he rendered his decision
This conduct of the respondent has given rise to the argument that the respondent desired to keep the question regarding his en largement on bail alive 320B C 3 What is important to realise is that in the hail application before Suresh J the respondent made an identi cal request made earlier in an application placed before Puranik J
Once that application was rejected there was no question of granting a similar prayer
That is virtually overuling the earlier decision without there being a change in the fact situation which would mean a substantial change having a direct impact on the earlier decision and not merely cosmetic changes which are of little or no conse quence
321D E 4 Judicial discipline propriety and comity demanded that the impugned order should not have been passed revers ing all earlier orders including the one rendered by Pura nik J only a couple of days before in the absence of any substantial change in the fact situation
321F 5 In such a situation the proper course is to direct that the matter be placed before the same learned Judge who disposed of the earlier applications
Such a practice or convention would prevent an impression being created that a litigant is avoiding or selecting a court to secure an order of his liking
Shahzad Hasan Khan vs Ishtiaq Hasan Khan 1987 2 SCC 684 referred to