Gauhati High Court
Page No.# 1/13 vs The State Of Assam And Ors on 14 November, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/13
GAHC010080752008
2008:GAU-AS:1548
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1891/2008
ALL ASSAM ENGLISH MEDIUM SCHOOLS' ASSOCIATION
REP. BY ITS PRESIDENT, SRI MRITUNJAY SHUKLA, C/O. MODERN
ENGLISH SCHOOL, KAHILIPARA, GHY-19
VERSUS
THE STATE OF ASSAM AND ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT.OF ASSAM,
EDUCATION DEPTT., DISPUR,GHY-6, ASSAM
2:THE DIRECTOR OF SECONDARY EDUCATION
KAHILIPARA
GHY-19, ASSAM
3:THE DIRECTOR OF ELEMENTARY EDUCATION
KAHILIPARA
GHY-19, ASSAM
4:MINISTRY OF HUMAN RESOURCE DEVELOPMENT
GOVT.OF INDIA
REP. BY ITS SECY. SCHOOL EDUCATION and LITERACY
NEW DELHI.
5:CENTRAL BOARD OF SECONDARY EDUCATION
REP. BY ITS CHAIRMAN
2, COMMUNITY CENTRE
PREET VIHAR
NEW DELHI-110092
6:BOARD OF SECONDARY EDUCTION
REP. BY ITS CHAIRMAN
BAMUNIMAIDAN, GHY-21
Page No.# 2/13
7:ASSAM HIGHER SECONDARY EDUCATION COUNCIL
REP. BY ITS CHAIRMAN
BAMUNIMAIDAN
GHY-2
Advocate for the Petitioner : MR. M NATH, MR. S S DEY,MR. A M MAZUMDAR,A ROY,MR. J
SINHA,M BORA,S CHOUDHURY
Advocate for the Respondent : SC. EDU., ADDL. AG, ASSAM,MR.H RAHMAN,MR.K N
CHOUDHURY,MR.P SAIKIA,MR.S SAIKIA,MR.T C CHUTIA,MR.V M THOMAS,SC. SEBA
Linked Case : WP(C)/199/2016
BYAKTIGATA VIDYALAYA SAMANNAYRAKSHEE SAMITEE
GUWAHATI
ASSAM and ANR.
A REGISTERED ASSOCIATION OF NON GOVT. SCHOOLS OF GUWAHATI
HENGRABARI
GHY- 36, DIST. - KAMRUP M
ASSAM, REP. BY ITS SECY.
SRI BIREN DAS.
2: BIREN DAS
S/O- LT. RAGHU NATH DAS
SECY., BYAKTIGATA VIDYALAYA SAMANNAYRAKSHEE SAMITTEE
GUWAHATI
ASOM.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE PRINCIPAL SECY.
EDUCATION DEPTT.
DISPUR, GHY- 6.
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM, KAHILIPARA, GHY- 19.
3:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM, KAHILIPARA, GHY- 19.
4:THE INSPECTOR OF SCHOOLS
KAMRUP DIST. CIRCLE
PANBAZAR, GHY- 1.
------------
Page No.# 3/13
Advocate for : MR.M KATAKI
Advocate for : SC
ELEMENTARY EDUCATION appearing for THE STATE OF ASSAM AND 3 ORS
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
Hon'ble MRS. JUSTICE SUSMITA PHUKAN KHAUND
Advocate for the petitioners : Shri J. Sinha, Advocate.
Advocates for the respondents : Shri N. J. Khataniar, SC, Education Deptt.
Date on which judgment is reserved : 13.11.2025
Date of pronouncement of judgment : 14.11.2025
Whether the pronouncement is of the operative part of the
judgment? : NA
Whether the full judgment has been pronounced? : Yes
Judgment & Order
(S.K. Medhi, J.)
The vires of the Assam Non-Government Educational Institutions
(Regulation and Management) Act, 2006 is the subject matter of challenge
in these two petitions instituted under Article 226 of the Constitution of India.
2. The petitioners in both the writ petitions are Associations of private unaided
schools and there are more than 200 such schools in the State of Assam. It is
the case of the petitioners that the establishment and management of the
institutions are governed and controlled by their respective Boards, namely,
CBSE, SEBA and AHSEC etc. It is contended that the impugned Act would give
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unguided, uncontrolled and arbitrary powers to certain officers of the
Government which are constitutionally invalid and therefore the present
challenge has been instituted. It is also submitted that the Act is not in
conformity with the law laid down by the Hon'ble Supreme Court in various
judgments.
3. We have heard Shri J. Sinha, learned counsel for the petitioner in
WP(C)/1891/2008. However, there is no representation on behalf of the
petitioners in WP(C)/199/2016. We have also heard Shri N. J. Khataniar, learned
Standing Counsel, Education Department.
4. Shri Sinha, the learned counsel for the petitioner has submitted that the
provisions of the Act in question are unreasonable and arbitrary whereby an
unbridled power has been given mainly to the Director whereby the autonomy
of the institutions would be put to peril.
5. He has specifically drawn the attention of this Court to the aspect that the
institutions are required to be registered which, according to the petitioner is an
onerous burden and is not connected with the objective of the institutions to
impart education. He has also submitted that the Act in question prescribes for
reserving 5% of seats for meritorious students coming from the weaker section
of the society. He has submitted that such reservation would also overlap with
the requirement of law under the Right of Children to Free and
Compulsory Education Act, 2009 (hereinafter the RTE Act) which provides
for having a reservation up to 25%. He has submitted that the fee structure of
the respective schools cannot be the aspect of determination of the State as the
same depends on the working pattern of the respective schools in question. He
has also submitted that under Section 3(1), the State Government has been
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given powers to regulate the functioning of the institution which would hamper
in the day-to-day functioning and would also invite unnecessary interference by
the Directorate. He has submitted that a statute has to pass the test of
reasonableness as enshrined under Article 14 of the Constitution of India which
has not been able to be done by the impugned Act and accordingly, the same is
liable to be declared as ultra-vires. He has also submitted that vide an order
dated 22.02.2016, there is a direction of this Court in the present proceeding
not to insist on the registration of the Institutions.
6. Per contra, Shri N. J. Khataniar, learned, Standing Counsel, Education
Department has submitted that for all legislations, there is a presumption
towards its validity and the onus is upon any person who challenges the same
on the ground that the same is constitutionally invalid. He has submitted that no
grounds have been able to be demonstrated to show that the Act in question is
unreasonable or arbitrary.
7. Drawing the attention of this Court to the statement of objects and reasons
of the Act, the learned Counsel has submitted that the primary concern was the
mushroom growth of non-Government Education Institutions and the increasing
trend for commercialisation of education coupled with the requirement to
adhere to certain standard / norms regarding the infrastructure as well as the
services rendered in such institutions. He has also submitted that the Act which
was of the year 2006 had undergone amendments and under Section 2(xv),
Non-Government Educational Institutions has been defined which reads
as follows:
" (xv) 'non government educational institutions' means schools established and
run by an individual or association of individuals or any Non-Government or
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Society or Trust, except the schools established and maintained by minorities
under clause (1) of Article 30 of the Constitution of India and imparting
education at Primary, Middle, Secondary and Higher Secondary Level without
receiving any grants-in-aid from the State Government excluding the
educational institutions run or aided by the Central Government or the State
Government; The word 'institution' wherever it occurs in the Act shall be
construed accordingly"
8. He has also drawn the attention of this Court to Section 6 requiring
registration and administrative recognisation of the existing non-Government
Institutions. Under the said Section, such existing institutions are required to
submit application for registration before the Director furnishing full particulars.
9. By drawing the attention of this Court to the RTE Act of 2009, more
particularly Section 12(1), the learned Standing Counsel has submitted that
under the aforesaid provision, the extent of the school's responsibility for free
and compulsory education has been laid down as per which, at least 25% of the
strength of the class should be of children belonging to weaker section and
disadvantaged groups. He has also drawn the attention of this Court to the
definition of school as provided in Section 2(n) of the Act which reads as
follows:
"2(n) "school" means any recognised school imparting elementary education
and includes--
(i) a school established, owned or controlled by the appropriate
Government or a local authority;
(ii) an aided school receiving aid or grants to meet whole or part of
its expenses from the appropriate Government or the local
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authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants to
meet its expenses from the appropriate Government or the local
authority"
10. On the aspect of the alleged overlapping, the learned Standing Counsel
has submitted that under Section 18(4) of the Act in question, 5% of the seats
are required to be reserved for meritorious students hailing from poor families
and such students are to be selected in a manner prescribed. As regards the
fee, Section 18 (5) lays down that the same is to be determined by the authority
in consultation with the school. For ready reference, the relevant parts are
extracted herein below:
"18
(1) ...
...
(4) Every recognised non-government educational institution shall reserve 5%
seats for admission of meritorious pupils hailing from poor families as
recommended by Director in this behalf. Such pupils shall be selected as per
norms to be prescribed.
(5) The students admitted against the reserved quota as provided in sub-section
(4) shall pay such fees as may be fixed by the Director in consultation with the
concerned School Authority on receipt of an application from the pupil in this
behalf."
11. The learned Standing Counsel has submitted that the main grievance, as
projected in the petition is with regard to the powers given to the Director. He
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has however submitted that it is deemed that all such powers would be
exercised reasonably and in an appropriate manner. He has also submitted that
the Act itself provides for a remedial measure in the form of an appellate forum
against any orders passed by the Director and in this regard, he has drawn the
attention of this Court to Section 28 A of the Act which provides for an appeal.
He has submitted that taking into consideration the facts and circumstances, the
said provision was inserted vide an amendment in the year 2018. He has
submitted that thereafter the Assam Non-Government Educational
Institution (Regulation of Fees) Act, 2018 has been enacted with the
specific purpose of bringing in a regulatory process to determine the fee
structure and the said Act is also presently holding the field. He has submitted
that the legislative competence is not the ground of challenge and mere
hardships which has been sought to be projected will not make an Act ultra-
vires.
12. In support of his submission, the learned Standing Counsel has relied
upon the following case laws:
i. Action Committee, Unaided Private Schools and Ors. Vs
Director of Education, Delhi and Ors. reported in (2009) 10
SCC 1.
ii. TMA Pai Foundation Vs State of Karnataka reported in
(2002) 8 SCC 481.
13. In the case of Action Committee (supra), the Hon'ble Supreme Court
has laid down that submission of accounts etc. by an unaided education
institution can be prescribed by a statute.
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14. In the case of TMA Pai Foundation (supra), the Hon'ble Supreme Court
has held that while there would be a constitutional right to establish an
administered minority educational institutions, the State would have regulatory
power to ensure standards and fairness.
15. He accordingly submits that the instant petition is liable to be dismissed
and the interim order, if any is liable to be vacated.
16. The rival submissions have been duly considered and the materials placed
before this Court have been carefully perused.
17. Before going to the inter se merits of the respective parties, this Court has
noted that while the writ petition was admitted vide order dated 16.05.2008,
the prayer for interim relief was rejected. We do not find that any appeal was
preferred against the said order. However, we have noticed that in a subsequent
order dated 10.02.2016, there is a mention of an IA filed by the State to recall
an order of status quo passed on 15.10.2015. However, there is no order of
15.10.2015 passed in the present proceeding and it appears that the said order
is passed in some other case of similar nature.
18. We have also noted that on the subsequent date i.e. 22.02.2016, the
order of status quo passed on 15.10.2015 was modified by directing that the
petitioners were required to furnish their details to facilitate the preparation of
the data-base of the Non-Government Institutions by the authorities. However,
the registration of the schools was not to be insisted by the Departments under
the Act in question.
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19. Be that as it may, we have noted that the present challenge is not on the
ground of any lack of legislative competence but more on the aspect that the
Act in question is in violation of Article 14 of the Constitution of India. The
primary thrust is that the Director of School Education has been given unbridled
powers to supervise and monitor the functioning of the schools. The challenge is
also on the aspect of alleged overlapping with the RTE Act, 2009 with regard to
the requirement of reserving seats for meritorious students coming from the
weaker section of the society.
20. We have carefully examined the aforesaid grounds. Under Section 2(xv),
Non-Government Educational Institutions has been defined which has
already been extracted above. Section 6 requires registration and administrative
recognisation of such existing institutions.
21. The Statement of Objects and Reasons of the Act in question which was
referred to by the learned Standing Counsel reads as follows:
" STATEMENT OF OBJECTS OF REASONS
The un-planned and mushroom growth of non-government educational
institutions at Primary, Secondary and Higher Secondary levels in the urban and
semi-urban areas of the State have necessitated to make law to regulate the
establishment and management of all the non-government educational
institutions i.e., educational institutions established and run by individual,
association of individual society or Trust at primary, Secondary & H.S. level
without receiving any grants-in-aid or financial assistance from the Government.
It is observed that there is an increasing trend for commercialization of
education and many educational institutions have been established with the sole
motive of earning profit with scant regards to the standard norms of land,
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building, class-rooms, furniture, library and laboratory facilities, fire safety
measures, play ground etc. The teaching and non-teaching staffs are paid
meager salary and their services are terminated or dismissed on false grounds
without giving reasonable opportunity to defend themselves. The State
government at times have to remain a silent spectator in spite of large scale
resentments expressed by the public.
As such, it is expedient to provide for law to regulate the establishment &
management of all the non-government educational institutions functioning in
the State & those to be established in future.
The Bill seeks to achieve the aforesaid objects fully.
Hence this bill."
22. From the aforesaid objects and reasons for the Act in question, it clearly
appears that the Act was enacted mainly to oversee and check the
mushrooming growth of private institution which has a direct relationship with
the future of the children. Apart from the aspect of fee which is being charged
from the students, the aspect of quality education is a very important aspect
which requires monitoring from the State. The service condition of the teachers
and staff is also a very important aspect which requires some kind of monitoring
to avoid exploitation.
23. We are of the opinion that the objective of the enactment does not
appear, by any stretch of imagination, to be unreasonable or arbitrary and
rather we are of the view that such an Act is necessary in the context of the
present scenario encompassing the State and also the country. The Act requires
registration of all such existing institutions. We do not find any reason to accede
to the arguments advanced by the petitioner that such registration would
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amount to any interference with the functioning of the School.
24. As regards the arguments made that there is overlapping of the Act with
the RTE Act of 2009, we are of the opinion that there is no overlapping at all.
Under section 18 (4) of the present Act, 5% of the seats are to be reserved for
meritorious students, who comes from poor families. The aforesaid provision
which has been extracted above, would also show that there would be a
manner for selection of such students and the fee to be paid by such students
are to be worked out by the Directorate in consultation with the school
authorities. The aforesaid provision has got nothing to do or interfere with the
provision of the Act of 2009.
25. It is trite law that there is a presumption of the validity of a legislation of a
State. Any challenge based on arbitrariness or reasonableness must clearly
manifest arbitrariness or violation of Constitutional rights. We are of the opinion
that the petitioner has failed to make out any such case. It is a consistent
practice of the Courts to adhere to the presumption of constitutional validity of
any legislative Act and the burden of proof is with the person who questions the
vires such Act. Such practice, apart from being in sync with the aspect of the
independence of the separate organs of the Government is also to ensure
stability in law.
26. In this regard, one may gainfully refer to the observations made by the
Hon'ble Supreme Court in the case of Supreme Court Advocates on Record
Association Vs Union of India reported in (2016) 5 SCC 1. In the said case
though the vires of the NJAC Act, 2014 was successfully challenged, it was
held that such challenge has to be supported by a case of blatant violation of
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the fundamental rights and has to pass the test of reasonability.
27. The Hon'ble Supreme Court in a catena of decisions on the aforesaid
aspect has laid down that the onus is heavy upon the person, who alleges any
unconstitutionality of any such Act and that burden has not been discharged in
the instant case. We are of the opinion that citing certain hardships by a private
party cannot be a ground for interfering with an Act which has been enacted
with the broad objective to bring a regulatory mechanism over private
educational institutions and streamlining of the functioning of such institution as
the same is directly in sync with securing a better future for the children who
are the assets of the country.
28. In view of the aforesaid discussion, we are of the opinion that no case for
interference is made out and accordingly, the writ petitions are dismissed.
29. The interim order, if any, including the observation made in the order
dated 22.02.2016 stands vacated.
JUDGE JUDGE
Comparing Assistant
