CIVIL WRIT JURISDICTION CASE No.9941 OF 2010 ---------------- ABUL LAIS, SON OF MD. YAKUB ALI, RESIDENT OF OF MOHALLA, NEW AZIMABAD, P.S. BAHADURPUR, DISTRICT – PATNA, THE DIRECTOR CONCEPT COACHING INSTITUTE, RAMNA ROAD, PATNA…………............, PETITIONER Versus 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE DIRECTOR, HIGHER EDUCATION, BIHAR, PATNA. 4. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA 5. THE DISTRICT MAGISTRATE- PATNA 6. THE DISTRICT EDUCATION OFFICER,PATNA..RESPONDENTS CWJC No.9732 of 2010 RAJ KISHORE SUMAN, SON OF SRI PRAHALAD SINGH, RESIDENT OF MOHALLA- R.K. COLONY, P.O. MAHENDRU, P.S. BAHADURPUR DISTRICT- PATNA, PROPRIETOR OF SUMAN I.I.T.MATH CENTRE, R.K. COLONY, P.O. MAHENDRU, P.S BAHADURPUDISTRICT- PATNA…………… PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE LAW SECRETARY, GOVT. OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE, PATNA 5. THE DISTRICT EDUCATION OFFICER, PATNA… RESPTS. CWJC No.10796 oF 2010 ASSOCIATION OF COACHING AND SCHOOL ACTIVIST ITS ORGANIZING SECRETARY, RAJ KUMAR SINGH,103 NEMA PLACE, EXHIBITION ROAD, P.S.- GANDHI MAIDAN DISTRICT-PATNA………………………… PETITIONER Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, GOVT. OF BIHAR, HAVING ITS OFFICE SITUATED AT MAIN SECRETARIAT, P.S. SACHIVALAYA, PATNA 3. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEPARTMENT, OFFICE SITUATED AT VIKASH BHAWAN,P.S. SHASHTRINAGAR, BAILEY ROAD, PATNA. 4. THE DISTRICT MAGISTRATE- PATNA 2 5. THE LAW SECRETARY, GOVT. OF BIHAR, HAVING ITS OFFICE SITUATED AT MAIN SECRETARIAT, P.S. SACHIVALAYA, PATNA 6. DISTRICT EDUCATION OFFICER, PATNA……. RESPONDENTS. CWJC No.12145 oF 2010 AJIT KUMAR SON OF RAM NARESH SHARMA, RESIDENT OF MOHALLA - HANUMAN NAGAR, P.S. KANKARBAGH, PATNA-20 ……………………………………………………….PETITIONER Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 3. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, VIKASH BHAWAN, PATNA. 4. THE DISTRICT MAGISTRATE- PATNA 5. THE LAW SECRETARY, GOVT. OF BIHAR, OLD SECRETARIAT, 6. THE DISTRICT EDUCATION OFFICER,PATNA…. RESPONDENTS CWJC No.19377 oF 2010 MANORANJAN KUMAR MISHRA SON OF SRI SHYAM NARAYAN MISHRA, R/O VILLAGE AND P.O. KEHUNIA, VIA LAURIA P.S. AND DISTRICT- WEST CHAMPARAN, PRESENTLY, RE- SIDING IN MOHALLA P.C. COLONY, KANKARBAGH, P.S. KANKARBAGH TOWN AND DISTRICT- PATNA…… PETITIONER Versus 1. THE STATE OF BIHAR 2. PRINCIPAL SECRETARY, DEPTT. OF HUMAN RESOURCES DEVELOPMENT, GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE- PATNA ………… RESPONDENTS CWJC No.12794 oF 2010 PRIVATE TEACHERS ASSOCIATION,KHAGARIA,THROUGH ITS PRESIDENT, DR. MD.NAUSHAD ALAM, S/O MD. SEKANDAR AZAM, R/O NALA ROAD, JAIPRAKASH NAGAR, P.S. KHAGARIA, DIST. PATNA… PETITIONER Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, GOVT. OF BIHAR, MAIN SECRETARIAT, P.S. SACHIVALAYA, PATNA 3. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEPARTMENT SITUATED AT VIKASH BHAWAN, P.S. SHASHTRINAGAR, BAILEY ROAD, PATNA 4. THE DISTRICT MAGISTRATE- KHAGARIA 5. THE LAW SECRETARY, GOVT. OF BIHAR SITUATED AT MAIN SECRETARIAT, P.S. SACHIVALAYA, PATNA 6. DISTRICT EDUCATION OFFICER, KHAGARIA…. RESPONDENTS 3 CWJC No.12875 oF 2010 VIDYA SHANKAR PRASAD, SON OF SHRI RAMADHAR PRASAD, RESIDENT OF GAURAKHANI, SASARAM……………PETITIONER Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA. 3. PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 4. LAW SECRETARY, GOVT. OF BIHAR, PATNA 5. DISTRICT MAGISTRATE- ROHTAS 6. DISTRICT EDUCATION OFFICER, ROHTAS………….. RESPTS. CWJC No.11127 oF 2010 1. HARSH KUMAR 2. SAURABH KUMAR, SONS OF SHRI RAVINDRA KR. SINHA, ADVOCATE R/O MOHALLA- NAYATOLA, P.S. PIRBAHORE, PATNA.. PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, PATNA 3. PRINCIPAL SECRETARY, HUMANRESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 4. THE DISTRICT EDUCATION OFFICER, PATNA…………… RESPONDENTS -------- FOR THE PETITIONER : MR. SHIVAJEE PANDEY,SR. ADVOCATE MR. MIRTUNJAY KUMAR, ADVOCATE ( C.W.J.C. No. 9941/2010) FOR THE RESPONDENTS- MR. A.A.G.3 -------- FOR THE PETITIONER : MR. CHITRANJAN SINHA,SR.ADVOCATE MR. SIDHARTHA PRASAD, ADVOCATE FOR THE RESPONDENTS :(AAG3) ( C.W.J.C. NO. 12875/2010) -------- FOR THE PETITIONER :MR. SARVAN KUMAR,ADVOCATE FOR THE RESPONDENT :- :(AAG3) (C.W.J.C. NO. 12145/10) -------- FOR THE PETITIONER :MR. ARUN KUMAR, MR. DAYA SHANKAR PD.ADVOCATE (C..W.J.C. NO. 10796/10) FOR THE RESPONDENTS …(AAG3) 4 P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON’BLE MR. JUSTICE DR. RAVI RANJAN ---------- Shiva Kirti Singh,J These writ petitions have been heard together because all contain a challenge to vires of the Bihar Coaching Institute (Control and Regulation), Act,2010 ( hereinafter referred to as `the Act’) or to some of its provisions. Petitioners are individuals or associations who are carrying on work of teaching or coaching by way of professions or occupation. 2. On behalf of petitioners certain provisions, such as those under Sub-section (4) of Section 3, Section 4 and Section 6 of the Act have been assailed, mainly on the touchstone of Article 19(1) (g ) of the Constitution of India. The contention is that several provisions or requirements in the offending part of the Act have placed unreasonable restrictions upon fundamental right guaranteed to all citizens to practice any profession, or to carry on any occupation, trade or business. Secondly, some of the petitioners have challenged the whole Act on the ground that the State Legislature does not have the legislative competence to enact 5 such a legislation because the topic- `Education’ mentioned in Entry 25 of List III of Schedule VII of the Constitution should not be given such wide meaning so as to cover the training given by private Coaching Institutes to its students. 3. Further, on behalf of several petitioners, who claim to be individual teachers or tutors, it was strenuously argued that they cannot be included under the definition of the term- “Coaching Institutes” as defined under section 2 (ix) of the Act. This submission required us to look into the term `Institution’ as given in Law Lexicons or dictionary. As per judicial pronouncements the meaning of the term institution varies as per context and the scope of a particular enactment. On behalf of State emphasis was laid on the meaning of the term `Institute’ or `Institution’ given at the end of page 2372 of Advanced Law Lexicon by P.A. Ramanath Aiyar, 3rd. Edition,2005, according to which the word “ Institution “ both in legal and colloquial use admits of application to physical things which may include an establishment especially of public character or affecting a community. Sometimes this term may be used as descriptive of an establishment or place where the business or operation of a society or association is 6 carried on. According to State, an organization concerned with carrying on training or other educational activities to provide preparation for competitive examinations or academic support to the students, even if run by an individual will be covered by the term “ Coaching Institute” if the organization has more than ten students,as per definition of the term “Coaching Institute” in section 2 ( ix ) of the Act. Prima facie, it appears that the term `Coaching Institute’ is defined keeping in mind the number of students receiving academic support and not on the number of faculties or persons associated with the organization or the institute. However, it was rightly submitted by learned counsel for the State that what shall be the width and scope of the term `Coaching Institute’ may arise for determination if an individual challenges acts of authorities against an individual but such an issue cannot have any bearing on the vires of the Act. Hence, such submissions on behalf of some of the petitioners need not be adjudicated in these writ petitions which have been preferred at the initial stage only to challenge vires of the Act. 4. So far as issue of legislative competence is concerned, 7 the preamble as well as definition of the term `Coaching Institute’ are of significance and need to be extracted which are as follows; “Preamble- to provide for the control and regulation of private coaching institutes of the State for providing better academic support in preparation of different competitive examinations and curriculum and admission into specialized institutions etc. Section 2 (ix) - “ Coaching Institute” means a registered institute, by any private/ registered institution or Trust, to provide preparation for competitive examination or academic support for more than 10 students, under section 3 of this Act.” 5. It is amply clear that the subject of the Act is in substance related to education. The submission advanced on behalf of the petitioners that training of students by Coaching Institute does not amount to education is to be noted only to be rejected. The word `Education’ has very wide meaning and connotation. In this context learned counsel for the State has rightly drawn our attention to the contents of paragraph-88 of the Judgment of the Supreme Court in the case of P.A. Inamdar Vrs. State of Maharashtra, (2005) 6 SCC537 which runs as follows :- “Education is: ….. continual growth of personality, steady development of character, and the qualitative improvement of life. A trained mind 8 has the capacity to draw spiritual nourishment from every experience, be it defeat or victory, sorrow or joy. Education is training the mind and not stuffing the brain We want that education by which character is formed, strength of mind is increased, the intellect is expanded, and by which one can stand on one’s own feet….The end of all education, all training, should be man-making. The end and aim of all training is to make the man grow. The training by which the current and expression of will are brought under control and become fruitful is called education.” According to Chambers Dictionary “Education is bringing up or training; …. strengthening of the powers of body or mind; culture” 6 The subject mentioned in Entry 25 of the Concurrent List-1 in schedule- VII of the Constitution gives “Education” an inclusive colour and content so as to include technical education, medical education and Universities, subject to the provisions of certain entries of list I, as well as vocational and technical training of labour. Such entry is wide enough and sufficient to empower the State Legislature to legislate in respect of subject covered under the Act. The contention to the contrary advanced on behalf of the petitioners has to be, therefore, repelled. 7. The challenge on the ground of Article 19(1)(g) of the Constitution of India is specifically directed against 9 some provisions in Sub-section (4) of Sections 4 and 6 of the Act which are extracted herein below for easy reference :- Section 3 (4) : “ After the commencement of this Act, any person who desires to establish or run coaching institute shall have to apply before the District Magistrate in the prescribed form with registration fee of Rs.5,000/- (Five thousand), along with the following information- (a) Determination of curriculum- (1) Curriculum for different kinds of academic support and duration for completion of curriculum shall be clarified. (2) Number of maximum students shall be mentioned for every curriculum. (b) Academic qualification of teachers- The teaching shall be performed by non-government teachers or retired teachers having at least graduation qualification, along with the bio-data of the teachers, their academic qualification and experience shall be mentioned. ( c ) Tuition fees-(1) The coaching institute shall have to issue a prospectus, mentioning different curriculum/ duration of completion of curriculum and with tuition fees. (2) Under the curriculum, it shall be mandatory to mention in the prospectus the number of lectures, tutorial, group discussions etc. (d) Physical Infrastructure- (1) Within the basic structure of the coaching institute, minimum one sq. meter, area should be for each student. (2) Other facilities- Under this, the following facilities, shall be made available by every coaching institute :- ( i) Sufficient furniture (bench/desk etc); (ii) Sufficient lighting arrangement ( electrification); (iii) Facility of drinking water; (iv) Facility of toilets; (v) Facility of sanitation and cleanliness; (vi) Arrangement for fire extinguisher; (vii) Medical treatment facility; (viii) Facility of parking of cycles/ vehicles; 10 Note- The State Government may provide available infrastructure to a coaching institution for coaching on specified terms and conditions.” Section 4 : “Authority- (1) Registration certificate will be given within thirty (30) days of application, by the committee constituted under the chairmanship of the District Magistrate, after examination on the basis of conditions of registration under Section-3. In case of rejection of application submitted for registration certificate, copy of the reasoned order to that effect shall be given to the applicant. A Registration Committee shall be constituted consisting of the following- (a) District Magistrate- Chairman (b) Superintendent of Police- Member ( c ) District Education Officer- Member Secretary ( d ) Principal ( Costituent college)- Member Note:- The Principal of constituent college situated at the district headquarter shall be member. In case of more than one college, they shall be nominated by the district magistrate for one year by rotation. (2) Soon on completion of 3 years of registration, for renewal of registration, the coaching institute shall apply in prescribed form with Rs.3,000/- (Three thousand) registration fee.” Section- 6 “Penalty- (1) Under this Act, the authority shall have the power of civil courts. The authority shall have such power which is vested in the courts under civil procedure code 1908 (V of 1908) for consideration of any suit namely:- (i) To accept evidence with proof through affidavit; (ii) To summon and to enforce attendance of any person, and his examination on oath; (iii) To enforce production of records; and (iv) To award cost. (2) In case of violation of any provision of this Act 11 or the rules and notification issued under this Act; the coaching institute shall be liable to penalty as follows:- (i) Rs. 25,000/- for the first offence. (ii) Rs. 1,00,000/- shall be for the second offence; (iii) In case of proof of allegations against the coaching institute after the second offence, the registration shall be cancelled by the Committee constituted for registration, after show-cause and giving sufficient opportunity of hearing.” 8. Article 19 (1) (g) is subject to Article 19(6) which empowers the State, regardless of sub-clause (g) of clause (1) of Article 19, to make any law imposing, in the interests of the general public, reasonable restrictions on the rights conferred by the said sub-clause, for (i) professional or technical qualifications for any profession or carrying on any occupation, trade or business, or (ii) carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. Thus, the State has been permitted by the Constitution to make any law imposing reasonable restrictions on the right to practice any profession or to carry on any occupation, trade or business. The power to legislate in the field of education is available to the State Legislature as noticed earlier. It is an established proposition of law that statutes made by a competent 12 Legislature carry with them presumption of validity unless they are shown to be invalid on account of being in contravention of the Constitution or doctrines flowing from it. 9. Learned counsels for the petitioners have raised serious grievance against laying down of academic qualifications of teachers under clause (b), mentioning of curriculum and tuition fee as per clause ( c ) as well as requiring minimum one square meter area for each student as per clause (d) of section 3(4) of the Act. It is the case of the petitioners that these provisions are not reasonable restrictions because many coaching institutes will be unable to meet these requirements, hence they are not regulatory but prohibitory and that such restrictions are unnecessary as well as unreasonable. 10. On behalf of State, by way of reply, it has been submitted that the aforesaid grievances merely question the wisdom of the Legislature and are not sufficient to rebut the presumption in favour of constitututionality of the Act. Placing reliance upon judgment of Supreme Court in the case of Ram Krishna Dalmia Vrs. Justice S.R. Tendolkar, (1958) SCC 538. relevant part of which is quoted in paragraph 19 of 13 Supreme Court Judgment in the case of State of Bihar Vrs. Bihar Distillery Ltd and others (1997) 2 SCC 453, it has been submitted that the petitioners have a heavy burden to show that there has been a clear transgression of the constitutionality principle and they have failed to discharge such a burden. According to State the purpose of the Act is to improve the services of private coaching institutes to help the students and in fact, the Act was enacted on account of a sad experience in the recent past when adversely affected students violently protested against their exploitation by private coaching institutes. A public interest litigation filed against State of Bihar by Yuva Shakti Punaichak bearing C.W.J.C. No. 3673 of 2010, was disposed of by a Division Bench of this Court on 20th April, 2010 after noticing that the matter raised was of genuine public interest and that a Bill for enactment of the Act had already been introduced by the State Legislature to achieve the purpose for which public interest litigation was filed on behalf of the students. In such a factual background, a quotation in paragraph-19 in the case of State of Bihar Vrs. Bihar Distillery Ltd. (supra) was rightly highlighted to support the reasonableness of the impugned 14 provisions of the Act. The relevant part from the aforesaid judgment may usefully be quoted here. It runs thus:- “(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and …” 11. In our considered view, laying down of academic qualifications of teachers, as per wisdom of the Legislature, the requirement to issue a prospectus mentioning different curriculum/ duration of completion of curriculum and tuition fee as well as most of the provisions for basic physical infrastructure including requirement of minimum one square meter area for each student in a class can not be held unreasonable . Under Regulations framed by The National Council For Teacher Education Act, 1993 such minimum area for trainee teachers is three square meters. Hence, in our view the aforesaid conditions are reasonable restrictions to achieve the purpose of the Act which is to control and regulate private coaching institutes so that they may provide better academic support to the students and may not devastate the students by initially making lofty promises and 15 thereafter giving highly dissatisfactory performance disclaiming all the promises. 12. So far as provision for other facilities under clause (d) of Section 3(4) are concerned, on behalf of petitioners it was submitted that facility of sanitation, cleanliness and medical treatment are too vague and on the ground of violation of such provisions the coaching institutes may be put to serious peril because there are no objective standards or extent of required facility mentioned in the Act. In reply, learned counsel for the State assured the Court and the petitioners that the facility of sanitation and cleanliness would require only the minimal extent of sanitation and cleanliness as prevailing in any such institution or educational institution of the area. No breach of such a clause would arise if the premises are kept free from unusual garbage or dust. So far as medical facility is concerned, a similar reasonable stand was taken on behalf of the State. It was submitted that medical treatment facility would be treated to be sufficient if First Aid Box is maintained and it would be desirable that if the area has doctor in the vicinity, then the facility of doctor on call is maintained. 16 13. In the light of fair stand and concessions mentioned above on behalf of State, the necessary details in respect of clause for sanitation and cleanliness and medical treatment facility would stand supplemented as per aforesaid stand of the State because Section 10 of the Act vests power in the Government to issue any clarification or rectification of doubts and difficulties under this Act. The State Government shall act as per its stand noted above and shall, if found necessary, indicate such stand in the rules or by issuing necessary clarification. 14. So far as section 4 is concerned, some of the petitioners have taken a stand that in the constitution of the “Authority” only 50% members are from the field of academics whereas their number should have been more and the inclusion of Superintendent of Police is not fair because it would give opportunity to the police to interfere with the working of the private coaching institutes. We do not find any arbitrariness or unreasonableness in the aforesaid provisions which only reflect the wisdom of the Legislature. 15. So far as provision for penalty under section 6 is concerned, sub-section (2) of section 6 has been attacked and 17 its constitutionality has been challenged on the ground that no procedure has been laid down for imposition of penalty under clause ( i ) or clause (ii ) relating to the first offence or the second offence and the procedure of show cause notice and sufficient opportunity of hearing is confined only for imposition of penalty under clause (iii) which relates to allegation after second offence. Secondly it has been submitted that private coaching institutes having less number of students, such as ten may find impossible to pay fine of Rs.25,000/- for the first offence and Rs.1,00,000/- for the second offence when penalty has been provided for violation of any provision of the Act. Illucidating these grievances it has been submitted that if on a particular date the premises are found not to be properly cleaned or drinking water is found inadequate or lacking, the authorities have not been given any discretion to impose any fine less than Rs.25,000/- for the first offence and Rs.1,00000/- for the second offence. 16. Learned counsel for the State has again adopted a fair standand has conceded that Rs.25,000/- and Rs.1,00,000/- may be clarified to be the maximum fine for the first and second offence respectively and that the competent authority will have discretion to impose even lesser penalty which will 18 be only up to Rs.25,000/- for the first offence and up to Rs.1,00000/- for second offence. He has also fairly conceded that the procedure of show cause notice and giving sufficient opportunity of hearing as provided under clause (iii) shall also govern and be applicable to imposition of any penalty for the first offence or for the second offence. In other words it has been conceded that the words “ after show cause and giving sufficient opportunity of hearing” occurring at the end of clause (iii) shall govern clause (i) and clause (ii) also, so far as imposition of any penalty under section 6(2) is concerned. 17. In view of concession made on behalf of State as noticed above, we do not find any reason to declare the provisions under section 6(2) of the Act as contrary to Article 14 of the Constitution. It is again made clear that the aforesaid concessions and clarifications shall bind the State Government who would be well advised to make the position clear through Rules or Clarifications. 18. As a result of aforesaid discussions, it is found and held that the Act in question does not suffer from unconstitutionality and no part of it can be declared ultra vires. We again make it clear that such finding in respect of certain provisions in section 3(4) and 6(2) is on account of concessions made on behalf of the State and the State Government shall be bound by such concessions. It is expected that the position arising on account of such concessions shall be made clear through the Rules or clarifications under section 10 of the Act. 19 19. As a result all the writ petitions stand dismissed but there shall be no order as to costs. I agree Dr. Ravi Ranjan, J Patna High Court, Patna Dated the 4th February, 2011 NARESH/AFR ( Shiva Kirti