JUDGMENT
S.B. Sinha, J.
1. This application is directed against a order dated 27th July, 1989 passed by the Director of Research and Training Department of Human Resources Development, Patna (respondent No. 3) as contained in Annexure, 17 to the writ application, whereby and whereunder the said respondent refused to grant recognition of the institution in question.
2. The fact of the matter lies in a very narrow compass.
3. The petitioner No. 1 is a society registered under the Society Registration Act and the petitioner No. 2 is the Secretary of the Eastern Regional College of Education.
4. Allegedly, the petitioner No. 1 society established a Teachers’ Training College under the name and stayle of Eastern Regional College of Education, Jamshedpur, Singhbhum and filed an application for approval thereof before the State of Bihar which was required for the purpose of obtaining affiliation of the said institution by the Ranchi University purported to be in terms of Section 4(19) of the Bihar State Universities Act, 1976. The said application is contained in Annexure 2 to the writ application.
5. According to the petitioners, the said institution was being run in womens college with an arrangement entered into by and between the petitioners and the principal thereof.
6. It has further been asserted that the petitioner No. 1-Society by reason of a registered deed of gift dated 28.9.1988 donated 5.75 acrea of land in favour of the college in question.
7. It has further been asserted that a plan for construction of the building was also made wherein provision have been made for construction of classrooms, workshops, for practical work, common rooms, hostel and staff quarters etc.
8. According to the petitioners, the said institution was inspected by the Dean of the Faculty of Education of Ranchi University was made an inspection of the college on 30th September, 1988 and 1st October, 1988 and by a report dated 2.10.1988 as contained in Annexure-6 to the writ application purported to have recommended that the application of the institution may be granted on the ground that the same fulfils the conditions precedent therefor.
9. It has further been asserted that on 10.3.1989, the petitioners took a building on rent for the purpose of running a students’ hostel therein.
10. On 13.3.1989, the respondent No. 3 intimated to the petitioners that the college would again be inspected on 18.3.1989 but according to the petitioners, do inspection was held which the petitioners duly intimated to the respondent No. 2 by a letter dated 22.5.1989 as contained in Annexure-15 to the writ application.
11. As indicated here in fore, by reason of the impugned order dated 27.7.1989, the respondent No. 3 rejected the petitioners’ application for grant of approval.
12. The petitioners have further asserted that a representation was made to the Chief Minister of Bihar for reviewing the matter on 1.9.1989 and by an order dated 22.1.1989 as contained in Annexure-28 to the writ application, the Chief Minister has directed further enquiry in relation thereto.
13. The petitioners have further contended that other minorities institutions which had also not fulfilled the requirements of the rules had been granted temporary recognition’ and for this purpose, the petitioners have annexed the orders passed by the State of Bihar to that effect which are contained in Annexures on 20 and 22 of the writ application.
14. In this case, no counter-affidavit has been filed on behalf of the State of Bihar.
15. Mr. K.D. Chatterjee, the learned Counsel appearing on behalf of the petitioners submitted that the reasons assigned by the respondent No. 3 in his impugned order as contained in Annexure-17 to the writ application are non-existent inasmuch as from a perusal of the inspection report made by the Dean of the Faculty of Education of the Ranchi University as contained in Annexure-6 to the writ application, it would be evident that the petitioners fulfilled all the necessary conditions.
In this connection, my attention was drawn to certain paragraphs of the said reports.
16. It was further submitted that the ground No. 1 as stated in Annexure-13 to the writ application to the effect that the college has no building on its own, is not required under law.
17. Further it was submitted that such a requirement is not a reasonable one inasmuch as admittedly the petitioners have started construction of their own building and have sufficient space therein and it had been running the institution in question in another college temporarily so long its own building is not constructed.
18. The learned Counsel further submitted that from a perusal of Annexure-6 to the writ application it would appear that the institution in question has its own library, which shows that the impugned order has been passed without considering the relevant materials.
19. The learned Counsel further submitted that in terms of the rules framed under Section 5 of the Bihar Non-Government Physical Training Colleges and Non-Government Teachers’ Training Colleges and Non-Government Primary Teachers’ Training Colleges (Control and Regulation) Act, 1982 (hereinafter referred to as the ‘Act’), there is no requirement for providing any accommodation to the teaching and non-teaching staff of the college.
20. Mr. Chatterjee further submitted that as would appear from the statements made in the writ application, it would be evident that there exists a residential hostel for the students as would be evident from Annexure-18 to the writ application and in that view of the matter, the ground No. 4 stated in the impugned order is also based on no material.
21. The learned Counsel further submitted that in any event the respondent No. 3 does not have any jurisdiction to pass the impugned order.
The learned Counsel, in this connection, has relied upon a decision of the Supreme Court in The Managing Board of the M.T. Mission v. The State of Bihar and in Arya Prathamik Teachers Sikccha Mahavidyalaya v. The State of Bihar reported in 1989 BLJR 457.
22. Mr. M.Y. Eqbal, the learned Counsel appearing on behalf of the State of Bihar submitted that the State of Bihar has an absolute discretion to recognise an institution as a minority institution.
23. The learned Counsel further submitted that in terms of the provisions of the said Act and the rules framed thereunder, no institution could have been established without the prior approval of the State of Bihar and in view of the fact that the petitioners’ institution does not fulfil of the conditions required for the purpose of grant of approval, this writ application is not maintainable.
24. The learned Counsel submitted that the report as contained in Annexure-6 to the writ application, would not binding upon the State inasmuch as the rules framed under the said Act provides for as to how and in what manner an inspection of the institution in question may be made by or on behalf of the State of Bihar.
25. With regard to the jurisdiction of the respondent No. 3 in passing the impugned order, the learned G.P.I. submitted that in view of Rules 5 and 6 thereof, the respondent No. 3 must be held to have necessary jurisdiction to pass the impugned order.
26. The learned Counsel further submitted that in any event, the students of the petitioner-institution cannot be permitted to sit in the B.Ed. examination unless and until the institution itself is affiliated and in this connection, the learned Counsel has relied upon various decisions, namely, in The Managing Committee of Maulana A.K. Azad P.T.C. College v. The State of Bihar, reported in 1989 Vol. 2, BLJR. 184, in Maulana Abdul Kalam Azad Primary Teachers Training Education College v. State of Bihar, reported in 1989 Vol. I BLJR 105, in Jawala Kant Mishra v. The State of Bihar, reported in 1989 PLJR 153 in Dr. Ramji Pandey v. The State of Bihar, reported in 1988 PLJR 91 in A.P.C.M. Society v. Government of Andhra Pradesh, and in Nageshwaramma v. State of Andhra Pradesh, .
27. The said Act was enacted to provide for the control and regulation of the Non-Government Physical Training Colleges and Non-Government Teachers’ Training Colleges and Non-Government Primary Teachers’ Training Colleges in the State of Bihar.
28. Section 2 of the said Act puts an embargo upon any person or institution or committee to organise, maintain, manage or promote any school or college for undertaking, conducting, providing for, inter alia, imparting teachers’ training without the previous permission of the State Government or if such previous permission has been accorded subject to the terms and conditions as may be determined by the State Government without fulfilling those terms and conditions.
29. Sub-section (2) of Section 2 of the said Act makes the decision of the State Government final and binding upon all concerned in relation to the matter as to whether the terms and conditions laid down by the State Government have been completely fulfilled or not.
30. Section 3 of the Act provides that the said Act would apply to all colleges which are not affiliated permanently to any University or body incorporated under any law of the Central Government or State Government and shall also apply to the colleges which are not affiliated or are temporarily affiliated or which are only proposed to be opened.
31. Section 4 of the said Act contains a penal provision.
32. Section 5 of the said Act provides power to the State Government to make rules in terms whereof the State Government has framed appropriate rules in terms of a notification dated 25.11.1987 as contained in Annexure-3 to the writ application.
33. In relation to a minority institution, it has been provided that a minority community society must be registered under the Societies Registration Act and recognised as such by the State Government/Central Government. For the purpose of this case, it is not necessary to state in details the terms and conditions for opening affiliation of the B.Ed. or Primary Teachers’ Training College as incorporated in various sub-rules of Rule 3 of the aforementioned rules.
34. Rules 5 and 6, which are, however, relevant for the purpose of this case, reads as follows:
5. Necessity of the permission of the State Government.–According to the provisions contained in Section 2 of the Act, prior permission of the State Government is essential before establishment of Training College and violation o? which will be a cognizible offence and punishable under Section 4 of the Act. The institution seeking permission will deposit a sum of Rs. 1,000 as inspection fee through a Treasury Challan in the prescribed form under the Head ‘277 Education-D University’ and submit an application with challan to the Director (P&T) Education Department, Government of Bihar within a month from the date of the publication of the rules or within one month from the date of the establishment of the Institution.
6. Enquiry before the grant of permission.–On receipt of application from institution for the grant of permission the State Government in Education Department shall get the enquiry conducted by a committee constituted of:
(a) An officer nominated by the Director (Research and Training).
(b) Concerned Regional Deputy Director of Education for B.Ed. College and concerned District Education Officer for Primary Training College.
(c) The Principal of the Government Teachers’ Training College established in the Divisions nominated by the State Government.
The committee shall have powers to inspect and ask for relevant papers. The State Government shall consider the recommendation of the committee for the grant of recognition permission.
35. Evidently, the said Act was enacted to tsop mushroom growth of physical training colleges and teachers’ training colleges and primary teachers’ training colleges in the State of Bihar.
36. However, so far as a minority institution is concerned, the establishment of such an institution cannot be totally prohibited in view of Articles 29 and 30 of the Constitution of India.
37. It is clear that even a minority institution has to be recognised by the State of Bihar in terms of the provisions of the said Act.
Reference in this connection, may be made to M.A.K.A.P.T. Education College v. State of Bihar, reported in 1989 Vol. I BLJR 105.
38. From a perusal of Section 2 of the said Act, however, it is evident that the permission has to be granted in terms thereof by the State Government and no provision has been made for delegation of the power of the State Government to any other authority under the said Act.
39. Mr. Eqbal, the learned G.P.I. has failed to bring to the notice to this Court any notification or any other statutory instrument whereby and whereunder the power of the State of Bihar was delegated in favour of the respondent No. 3 in relation to the exercise of its statutory function as contained in Section 2 of the Act read with Rule 3 of the rules aforementioned.
40 Rules 5 and 6 of the rules which have been relied upon by Mr. Eqbal in support of his submission that the respondent No. 3 was empowered to pass the impugned order as contained in Annexure-17 to the writ application, in my considered view, are not at all applicable.
41. Rule 5 itself provides that the prior permission has to be granted by the State Government where for the institution seeking permission is required to deposit a sum of Rs. 1,000 as inspection fee through a Treasury Challan which has to be filed before the respondent No. 3.
42. In terms of Rule 6 of the aforementioned Rules, on receipt of such an explanation, the Education Department is to get the enquiry conducted by a Committee; one member whereof can be nominated by the respondent No. 3.
43. It is, therefore, clear that the respondent No. 3 is not a statutory authority being authorised to pass a final order under Section 2 of the said Act Authority to act under a Statute must be expressly granted thereunder or the same must be found oat from the Statute itself by necessary implication. Only because application for grant of permission from the State Government is to be filed before the respondent No. 3 the same by itself, cannot lead us to the conclusion that thereby the said officer has been authorised to finally determine the question as to whether the institution is fit to be granted prior permission to establish an institution or to grant recognition for the purpose of grant of affiliation by the concerned University.
44 It is now well-known that in absence of an express power relating to the delegation of authority relating to a statutory function, no person can neither be delegated nor can exercise any such function.
Thus, in absence of any delegation of statutory power to finally dispose of the application for grant of approval filed on behalf of petitions, it must be held that the respondent No. 3 was not authorised in law to pass the impugned order as contained in Annexure-17 to the writ application.
45. Further, from a perusal of Annexure-17 to the writ application, it appears that the same have also not been authenticated in terms of Article 166(3) of the Constitution of India.
46. In terms of Article 166 of the Constitution, the Governor of Bihar has framed rules of executive business wherein provisions have been made as to the matters required to be dealt with by the authorities mentioned therein.
47. A statutory order required to be passed by the State of Bihar, must be passed by an authority authorised in that behalf in terms of the provisions of the rule, of the executive business.
48. Taking, thus, all facts and circumstances into consideration, therefore, it must be held that the respondent No. 3 had no jurisdiction to pass the impugned order and thus, the same cannot be sustained.
49. In view of my findings aforementioned, it is not at all necessary to consider the other submissions made at the bar.
50. However, it may be noted that for the purpose of grant of approval, the inspection, if any, is to be made by a committee in terms of the Rule 6 of the aforementioned rules and from the statements made in the writ application, it appears that although, 18.3.1989 was the date fixed for inspection of the college, no such inspection was held as would be evident from Annexure-15 to the writ application.
51. In absence of any report made by a committee constituted under Rule 6 of the said rule, it is not at all understandable as to on what basis and on what materials the respondent No. 4 came to the conclusion that the petitioners do not fulfil the conditions for approval as mentioned in the impugned order as contained in Annexure-17 to the writ application.
52. As indicated hereinbefore, the petitioners prima facie have been able to show that at least some of the grounds mentioned in the impugned order are not based on any material. It is, also, clear that in passing the said order, the respondent No. 3 has not considered relevant materials on records of the case.
53. Further, if no inspection was made by a committee constituted under Rule 6 of the aforementioned rules, the only material which was available on records for the purpose of consideration as to whether the institution in question should be granted approval or not, besides the materials supplied by the petitioners available was the report of the Dean of Faculty of Education dated 2.10.1988 as contained in Annexure-6 to the writ application.
54. Apparently, the impugned order does not appear to have been passed even on the basis of aforementioned Annexure-6 to the writ application.
55. In this view of the matter, this writ application must be allowed and the impugned order dated 27.7.1989 as contained in Annexure-17 to the writ application is quashed.
56. The State of Bihar is directed to pass an appropriate order on the application filed by the petitioners as contained in Annexure-2 to the writ application upon consideration of the materials available on records or which may be collected in terms of the said rules including by an inspection as envisaged as under Rule 6 of the Rules.
57. Before parting with the case, it may be mentioned that Mr. Chatterjee submitted that the students in question for the Sessions 1988-89 and 1989-90 may be permitted to sit in the examination, which are yet to be held.
58 It appears that such an order has been passed by a Division Bench of this Court in CWJC No. 5597 of 1989 (R) by an order dated 13.11.1990. Normally, this Court is reluctant to pass such an order. However, in this case, it appears that in view of Annexure-6 to the writ application prima facie the facilities for imparting in a Primary Teachers’ Training College to the students of the institution had been existing.
59. As indicated hereinbefore, the statements made in the writ application have not been controverted by the State of Bihar by filing any counter-affidavit. This institution, therefore, prima fade, does not appear to be one of those institutions which can be said to have been established by some interested persons in establishing so-called colleges by claiming the same to be a minority institution, although in truth and substance the same was established not with a view to promate the interests of a minority community whether based on religion or language as envisaged under Articles 29 and 30 of the Constitution of India.
60. In this view of the matter, the State of Bihar is directed to complete the matter relating to grant of approval and or recognition of the institution with utmost expedition and preferably within a period of three months from the date of receipt of a copy of this judgment. In the meantime, the authorities concerned, must appoint an inspecting committee for inspecting the institution and take a decision with regard to grant of recognition and communicate the same to the petitioners.
61. So far as the prayer of Mr. Chatterjee for allowing the students of petitioner-institution to sit in the B. Ed. examination is concerned, the respondent No. 4 is directed to scrutinse the individual case of all the concerned students so as to satisfy itself as to whether they were genuine students or not and further whether they have fulfilled all the conditions for appearance in the said examination or not. In the event, the University authorities are satisfied that the students of the petitioner-institution are eligible for appearing in the B.Ed. examination, the University shall allow them to fill-up the examination forms, deposit the prescribed fees and allow them to appear at the B. Ed. examination for the Sessions 1988-89 and 1989-90.
62. The results of such students, however, shall not be published unless the decision of the State Government with regard to the approval/recognition of the institution in question is communicated to the University.
63. It is made clear that the students appearing at the examination by reason of this order would do so at their own risk and no right would enure to their benefit only on the basis of this order.
64. It is further made clear that any of observation made by me hereinbefore, has been made only for the purpose of the decision of this case and the same shall not in anyway affect the decision of the State Government in terms of the provisions of the said Act.
65. In the result, this application is allowed with the aforementioned observations and directions. However, in the facts and circumstances of this case, there will be no order as to costs.