Penalty clause in policy for private colleges issued by commissioner, college education is illegal and beyond his power, High Court of Rajasthan


The High Court of Rajasthan has observed that the penalty clause in the private college policy issued by the Commissioner of College Education, for the various years in question, is beyond his power and illegal.

Essentially, the petitioners got temporary recognition after due inspection and verification, and the same thing continued. Affiliations were granted by universities and students were admitted on a regular basis who presented for examinations over the years. However, due to some shortcomings, in terms of private policy, for different years, sanction and recovery were initiated and due to their non-filing or for any other reason, the NOC was not issued.

As a result, membership has also not been extended or suspended, and disputes have arisen for not issuing admission cards to students for their participation in examinations or for not declaring their result. Agreed by this, this petition in brief was filed praying for the granting of NOC/affiliation, appearing for examination and changing the category from former student to regular student, etc.

The court considered these issues with respect to the jurisdiction of the Commissioner of Collegial Education to issue the policy and more specifically the power to impose a sanction under it and whether the is legal, jurisdictionally valid and authorized under the Rajasthan Non-Government Educational Institutions Act, 1989 or not.

Judge Sameer Jaindisposed of the petitioners based on the following guidelines and submissions:

(1) The penalty clause contained in the Private Colleges Policy/Instructions issued by the Commissioner of College Education, for the various years in question, is deemed beyond his power and declared illegal.
(2) The penalty deposited by the respective petitioner/college under the orders of the Court or in light of the provisions of the private college policy shall be refunded to the petitioners/colleges within sixty days, failing which an interest 6% will accrue on the same after 60 days.
(3) The amount reimbursed by the Respondents shall be deposited by the respective Applicants/Colleges into the “Student Welfare Fund”, and be used for the welfare and betterment of the students in such activities as settlement of dues for students who are unable to deposit fees, medical care, library and other equipment and facilities necessary for and by students and not to be used for other purposes.
(4) The State as well as the Respondents are obligated to ensure that as a result of this dispute, the students are not penalized and that their results, grade sheets, admission cards, other documents are not withheld and declared/released in regular students’ capacity immediately, without fail. Respondents are encouraged to attend and assist the students in question 24 hours a day, 7 days a week. claimants argued that the non-declaration of results prejudices students for their participation in future examinations, including competitions.

The court observed that the phraseology “delegated legislation” or “delegated instructions” cannot stand on the grounds that neither the policy was issued under the provisions of section 42 of the 1989 Act nor that they had no authority under Section 43 of the 1989 Act. The court held that the respondents had ultra-vires the Non-Government Educational Institutions of Rajasthan Act 1989 and the Rules of 1993 imposed, invoked and charged against the petitioners, which was neither authorized nor permitted or delegated by law and rules.

Additionally, the court also held that neither the 1989 Act nor the 1993 Rules gave specific power to impose penalties other than Sections 33 and 34 of the 1989 Act. Even the policies issued by the commissioner for college education are in consonance because at the very moment of the formulation of the Colleges, there was no penalty clause and in later years, that is to say in 2015 and 2016, it was exercised exorbitantly to the extent of Rs.6 lac and in later years it was reduced to the extent of Rs.50,000/- on an annual basis, without any reasoning, merely on the whims and fancies of the Commissioner, College Education, the court added.

It was also felt that the courts should be slow to interfere with policy decisions, but it is also well established law that judicial review is permitted if any policy, instruction, letter or directive is issued illegally without any authority of law, beyond the powers granted by statute and supersedes the provisions of superior statutes such as the 1989 Act and the 1993 Rules.

Further, the court observed that the only power to impose a penalty in any given set of circumstances for breach of the respective sections is enshrined in sections 33 and 34 of the 1989 Act. The court affirmed that no other power to impose a penalty expressly the meaning is specified in the 1989 Act or the 1993 Rules. The court added that even on reading the policies of the private colleges, no provision of the Act or Rules has been specified or dismissed by which the sanction is imposed or delegated.

Moreover, the tribunal rejected the reliance placed by the Respondent State St. Johns Teacher Training Institute for the same does not apply to the present cases because it is a well-established position of law that delegation of powers should be permitted under the Act. In the present case, under Section 42 of the 1989 Act, no notice was issued for the imposition of a penalty, neither published nor approved by the state government, the court added. . The court held that the suo motu powers were exercised voluntarily by the Commissioner of Collegiate Education without any basis, without any authority of law which was never specified under the 1989 Act or the 1993 Rules.

The court observed that under Rule 7(3) of the 1993 Regulations, if the school has failed to comply with the directions, its recognition may be withdrawn by the competent authority or the Director of Education, however, said rule nowhere specifies that a sanction can be imposed and that the granting of temporary/permanent recognition can be regularized or extended.

The plaintiffs’ attorneys include Mr. Mahendra Shah, Sr. Adv. with Mr. Kamlesh Sharma, Adv. Mrs. Pragya Seth, Adv. Mrs. Sarah S. Sharma, Adv. Mr. Ashish Sharma Upadhyay, Adv. Mr. Naveen Dhuvan, Adv. Mr. Manu Bhargava, Adv. Mr. Ravi Kant Sharma, Adv. Mr. Sanjay Joshi, Adv. MBL Saini, Adv. Mr. Vijay Jain, Adv. Mr. KA Khan, Adv. Mr. Atar Singh, Adv. Mr. Himanshu Jain, Adv. Mr. Sanjay Sharma, Adv. Mr. Ashish Kumar, Adv.

Counsel for the Respondents include Mr. Prakhar Gupta, Adv. for Dr. VB Sharma, AAG Mr. Aditya Sharma, Dy.GC Mr. Lokesh Kumar Sharma, Adv. Mr. Vinod Kumar Gupta, Adv. Mr. Sudhir Yadav, Adv.

Case title: Sita Devi Educational Society, Bhilwara & Anr. vs. state of rajasthan

Quote: 2022 LiveLaw (Raj) 100

Click here to read/download the judgment.

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