2022 (5) TMI 1636 - SC - Indian Laws

Challenge to Notification dated 13.04.2018 issued by the appropriate authority in exercise of powers Under Section 87 of Punjab Reorganisation Act 1966 - whether Clause (a) of the third proviso inserted in terms of paragraph 6 of the impugned Government Order/Notification dated 13.04.2018 can be regarded as peripheral or insubstantial change to the provisions of the Punjab (Regulations of Fees of Unaided Educational Institutions) Act 2016 which have been extended vide impugned notification issued in exercise of powers Under Section 87 of the 1966 Act? HELD THAT - It would be a different matter if the Parliament or the State Legislature as the case may be were to incorporate such condition in the enactment such as the 2016 Act. Had it been so incorporated it would then be open to the unaided institutions to question the validity of such a provision which could be tested by the Constitutional Court on the basis of doctrine of fairness arbitrariness and other grounds available under Part III of the Constitution of India or otherwise. Suffice it to observe that the change introduced vide the impugned Government Order/Notification in terms of Clause (a) in the third proviso inserted by way of paragraph 6 thereof is not a peripheral or insubstantial change. Hence it is clearly outside the scope of the authority bestowed on the competent authority in terms of Section 87 of the 1966 Act. That stipulation therefore needs to be struck down being ultra vires - Reverting to Clause (b) it is found that the challenge to Clause (b) is tenuous. In that this stipulation merely prohibits the unaided institutions from charging any kind of cost from the parents. This is consistent with the legislative intent and mandate of the 2016 Act. In fact it restates the inbuilt policy essence and substance of the 2016 Act. Thus it is in no way a substantial change as in the case of Clause (a) - challenge to Clause (b) of the third proviso inserted by virtue of Government Order/Notification by way of paragraph 6 cannot be countenanced and is rejected. That takes to the challenge to paragraph 8 of the impugned Government Order/Notification whereby the penalty amount is enhanced in respect of unaided institutions governed by the 2016 Act within the Union Territory in terms of impugned Government Order/Notification. Again this is not a peripheral or insubstantial alteration or modification of Section 14. Inasmuch as what should be the quantum of penalty amount or punishment is a legislative policy. It must be left to the concerned legislature. It cannot be provided by way of an executive order including in exercise of powers Under Section 87 of the 1966 Act-being a substantial change to the regime predicated in Section 14 of the 2016 Act. - Thus paragraph 8 of the impugned Government Order/Notification also cannot stand the test of judicial scrutiny. Hence the same needs to be struck down being unconstitutional and ultra vires. The appeals are partly allowed.

Summary

Issues Involved:
The judgment involves the challenge to a Notification dated 13.04.2018 issued by the appropriate authority u/s 87 of Punjab Reorganisation Act, 1966. The High Court dismissed the writ petition challenging the Notification. The specific challenge in the Supreme Court pertains to certain clauses inserted in the Notification, including disclosure requirements for unaided educational institutions and penalty enhancements.

Judgment Details:

Challenge to Clause (a) of the Third Proviso:
The Supreme Court held that Clause (a) of the third proviso, mandating unaided educational institutions to upload financial information on their websites, is a substantive change and not peripheral. The Court emphasized that the original Act did not include such a provision, making it beyond the authority granted u/s 87 of the 1966 Act. Thus, Clause (a) was deemed ultra vires and struck down.

Challenge to Clause (b) of the Third Proviso:
Regarding Clause (b), which prohibits unaided institutions from charging any additional costs from parents, the Court found it consistent with the legislative intent of the 2016 Act. This clause reinforces the Act's essence and is necessary for better administration. As it aligns with the Act's mandate, the challenge to Clause (b) was rejected.

Challenge to Paragraph 8 of the Notification:
The Court ruled that the enhancement of penalty amounts in paragraph 8 constitutes a substantial change to the legislative policy on penalties. Such modifications should be within the purview of the legislature and not through executive orders u/s 87 of the 1966 Act. Therefore, paragraph 8 was deemed unconstitutional and struck down.

Conclusion:
The Supreme Court partially allowed the appeals, striking down Clause (a) and paragraph 8 of the impugned Notification while rejecting the challenge to Clause (b). The Court clarified that no opinion was expressed on other issues related to the 2016 Act. Additionally, certain observations against a writ petitioner were expunged, and no costs were awarded. The judgment emphasized adherence to statutory limits and conditions when extending enactments to Union Territories under Section 87 of the Punjab Reorganisation Act, 1966.