Madras High Court
Meenakshi Academy Of Higher Education vs The University Grants Commission on 27 September, 2010
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.09.2010
CORAM:
THE HONOURABLE MR. JUSTICE V.DHANAPALAN
W.P.No.15558 of 2010
Meenakshi Academy of Higher Education
and Research (Deemed University),
rep. by its Registrar A.N.Santhanam,
No.12, Vembuli Amman Koil Street,
West K.K.Nagar,
Chennai 600 007. ... Petitioner
vs.
1. The University Grants Commission,
Bahadursha Zafar Marg,
New Delhi 110 002,
rep. by its Chairman.
2. The Member Secretary,
All India Council for Technical Education,
7th Floor, Chanderlok Building,
Janpath, New Delhi.
3. The Ministry of Human Resources Development,
rep. by its Secretary,
New Delhi. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the (UGC & AICTE), 1st and 2nd respondents herein to inspect the petitioner Institution, Faculty of Engineering & Technology, which is a department of Meenakshi Academy of Higher Education and Research, the (Deemed University) as per the petitioner's application dated 12.05.2008.
For Petitioner : Mr.G.Masilamani,
Senior Counsel,
Mr.J.Saravanavel
For Respondents : Mr.R.Thiyagarajan, for R1
Senior Counsel,
Mr.P.R.Gopinathan
Mr.AR.L.Sundaresan, for R2
Senior Counsel,
for M/s.A.L.Gandhimathi
Mr.M.Raveendran, for R3
Additional Solicitor General
for Mr.A.S.Vijayaragavan,
Senior Central Govt. Standing Counsel
O R D E R
By consent of the learned counsel on either side, the writ petition is taken up for final disposal.
2. This writ petition is filed for the issuance of a writ of mandamus directing the (UGC & AICTE), 1st and 2nd respondents herein, to inspect the petitioner Institution, Faculty of Engineering & Technology, which is a department of Meenakshi Academy of Higher Education and Research, the (Deemed University) as per the petitioner's application dated 12.05.2008.
3. The case of the petitioner as put forth in the affidavit would run thus :
(i) The petitioner is a Deemed University by virtue of the said status having been granted by the Government of India by notification dated 31.03.2004, in consultation with the University Grants Commission under Section-3 of the University Grants Commission (UGC) Act. The petitioner has been running a Dental College under the name of 'Meenakshi Ammal Dental College' and 'Meenakshi Medical College and Research Institute', which has been brought under the ambit of the petitioner Deemed University by notifications, dated 31.03.2004, 26.07.2004 and 02.06.2005. The petitioner is also running Engineering Colleges and other paramedical courses. The colleges run by the petitioner have the state-of-art facilities.
(ii) There has been very great demand for admission in the petitioner Institution not only within India, but also outside the country in view of the excellence which the petitioner achieved under the dynamic leadership of various eminent personalities in Medical field. The petitioner has always been ensuring that merits should not be compromised and for that purpose, has been admitting students in a fair and transparent manner by evolving its own method of admission and conducting a transparent All India Admission Test for various courses that are being offered by it.
(iii) The fees which are fixed by the petitioner for various courses are done taking into account the recurring expenses which the petitioner has to incur per student and considering the developmental activities which the petitioner is contemplating. There has been no scope for any complaints or grievances for any quarter and it is significant where the petitioner is admitting students from all strata of Society. Since merit is the basis for selection and admission, the economic backwardness of a student would not disable him from getting admission.
(iv) The petitioner submits that they decided to start additional departments, namely, faculty of Engineering and Technology and faculty of Humanities and Sciences as departments of the above said Deemed University. For this purpose, the petitioner submitted an application to the Ministry of Human Resource Development and the Secretary, UGC, New Delhi for starting the above said departments on 12.05.2008. According to the petitioner, the copies of application/proposal were furnished to the AICTE, New Delhi for approval on 12.05.2008 and they have submitted the application to the Government of India, UGC and AICTE, New Delhi for starting additional departments on 12.05.2008 of the above mentioned Deemed University. It is the petitioner's grievance that the authority concerned has not taken any steps to inspect their premises regarding the infrastructural facilities and that they reminded the respondent vide letters dated 22.03.2010, 27.04.2010 and 12.06.2010.
(v) The UGC has informed the petitioner that their proposal for ex-post-facto approval for starting faculty of Engineering Technology in the main campus has been acknowledged. According to the petitioner, no communication has been received from AICTE regarding the inspection of the petitioner Institution. The AICTE is the authority to inspect a technical institution regarding the infrastructural facilities and it submits its report to the UGC for grant of approval. The AICTE is empowered to inspect the Technical Institute of the Institution to ensure that the standards and norms are maintained. The petitioner would submit that the 2nd respondent AICTE has to inspect the petitioner Institution under Section 11 of the AICTE Act within a reasonable time and forward its report along with its conclusion to the UGC and the UGC has to take action as per the report submitted by the AICTE. But, the AICTE did not come forward to inspect the petitioner's Institution.
(vi) Thereafter, the UGC and AICTE shall jointly conduct the inspection within a period of three (3) months from the date of the report and the UGC shall take action as it deems fit. According to the petitioner, the AICTE, before it conducts any inspection shall request the UGC to send a member to be a part of the inspection committee. If the UGC does not depute such a member within a reasonable time, the AICTE can proceed to conduct inspection and forward its report to the UGC.
(vii) The direction of the Government in its notification No.F2-1/2006 U3 (A) dated 05.04.2006 states that it is not a pre-requisite for an institution notified as a 'deemed to be University' to obtain approval of the AICTE to start any programme in technical or management education leading to an award, including Degrees in disciplines covered under the AICTE Act, 1987. However, institutions notified as Deemed to be University are required to ensure the maintenance of the minimum standards prescribed by the AICTE for various courses that come under the jurisdiction of the said Council. It is expected that the institutions notified as Deemed to be University maintain their standards of education higher than the minimum prescribed by the AICTE.
(viii) In the light of the above direction, the faculty of Engineering and Technology courses have departments of the petitioner Deemed University and they have been started from the academic year 2008-2009. Admissions have also been made for the academic year 2008-2009 and 2009-2010. Till the date of filing the writ petition, neither the AICTE nor the UGC have sent any inspection committee to conduct necessary inspection for the above faculty of Engineering and Technology inspite of the petitioner's reminders dated 22.03.2010, 27.04.2010 and 12.06.2010. Being aggrieved by the inaction of the respondents, the petitioner has filed the present writ petition.
4. The 1st respondent UGC has filed counter affidavit, wherein, it is stated as follows:
(i) The Government of India, Ministry of Human Resources Development Department of Secondary and Higher Education Department declared Meenakshi Academy of Higher Education and Research, Chennai as a Deemed University comprising of Meenakshi Ammal Dental College as per Notification dated 31.03.2004. Subsequently, two more constituent units, viz., Meenakshi Medical College and Research Institute, Enathur and Meenakshi College of Nursing, Chennai were included under the ambit of the Deemed University as per Notification dated 26.07.2004 and 02.06.2005.
(ii) The Government of India, Ministry of Human Resources Development Department by its letter dated 23.04.2009 informed the UGC that the Deemed to be University has applied for starting faculty of Engineering and Technology and Faculty of Humanities and Science as its on campus and a proposal in this respect had already been submitted by the Deemed to be University to the UGC as per letter dated 12.05.2008.
(iii) The records of the concerned Section of UGC has found that no such proposal was received by the UGC, although the Deemed to be University had produced an office copy showing that the proposal was received by the UGC. However, the Deemed to be University started the following Faculties/Institutions as constituent Colleges of the Deemed to be University without the prior approval of the UGC and the Ministry of Human Resources Development.
(a) Arulmigu Meenakshi Amman College of Nursing, Enathur, Kancheepuram. (b) Meenakshi College of Physiotherapy, West K.K.Nagar, Chennai. (c) Meenakshi College of Occupational Therapy, Chennai. (d) Faculty of Engineering & Technology, Chennai. (e) International Centre for Biomedical Sciences & Technology, Mogappair, Chennai.
In view of the above, the Deemed University was called upon to submit clarification in the above respect by UGC by its letter dated 06.06.2009. In reply, the Deemed University submitted its clarification along with the proposal for Ex-post facto approval in respect of faculty of Engineering & Technology, by its letter dated 23.02.2010. By letter dated 19.05.2010, UGC had acknowledged the said letter relating to the proposal for Ex-post facto approval.
(iv) The 1st respondent has stated that in 2006, one Viplav Sharma had filed a Public Interest Litigation in W.P.No.142 of 2006 before the Supreme Court of India, seeking suitable directions directing the UGC to frame regulations. This specific relief was sought for in the above writ petition alleging that several dubious institutions had got the status of Deemed University; that the admission and collection of fees by these institutions were not under the control of UGC, that the UGC and HRD Ministry had allowed this Deemed University to have various campus and there was no Regulation framed by UGC to control these institutions. The Central Government constituted a Committee called Tandon Committee to review the position. There was a simultaneous review by UGC also. The reports made by the Committees have been placed before the Supreme Court in the pending public interest litigation. Based on the report of the Tandon Committee, the Central Government has categorized the various deemed to be Universities into Class A, B and C. Institutions which are free from any deficiencies are grouped under "A"; Institutions where there were deficiencies and which have been granted three years to rectify the deficiencies and defects are grouped under class "B", class "C" comprised of 44 Institutions which were recommended for de-recognition. All these 44 Institutions falling under Class "C" got themselves impleaded in the public interest litigation before the Supreme Court and got an order of status quo, by virtue of which, they are continuing to function. The matter is still pending before the Supreme Court.
(v) In the meantime, the UGC framed new regulations called the UGC (Institutions Deemed to be Universities) Regulations, 2010 and published the same in the Gazette of India on 26.05.2010. Clause 1.2 of the Regulations reads as follows :
"This Regulation was applied to every Institution seeking declaration as Institutions Deemed to be University under the Act as also, albeit prospectively to an Institution which has been declared as an Institution Deemed to be University under Section 3 of the UGC Act, 1956".
Clause 1.3 of the Regulation says that the Regulation shall come into force with effect from the date of Notification in the official gazette.
(vi) In view of the new Regulations, the petitioner's request to inspect their Institution, faculty of Engineering and Technology as per their application dated 12.05.2008 is clearly not maintainable unless the petitioner satisfies the requirements of the Regulations of 2010. It is not the case of the petitioner that after coming into force of the new Regulations 2010, he has complied with all the requirements of the new Regulations, but, still the authorities are not considering the request of the petitioner. The petitioner cannot insist upon his application dated 12.05.2008 being considered without reference to the new Regulations of 2010. Further, as the petitioner had already got impleaded in the Supreme Court in the public interest litigation referred to above and since the HRD Ministry is directed to file separate counter affidavit in those 44 cases where the institutions were sought to be de-recognized, the petitioner cannot sustain the present writ petition when its very existence as Deemed to be University is at stake.
(vii) The 1st respondent would further state that the petitioner had filed the writ petition on 15.07.2010 after the application of the new Regulations. It cannot therefore insist upon consideration of its application dated 12.05.2008 submitted long prior to the coming into force of the Notification especially when the writ petition itself was filed on 15.07.2010. According to the 1st respondent, when the petitioner seeks approval for the faculty of Engineering and Technology courses after the new Regulations have come into effect, the relevant date for the approval must necessarily be a date subsequent to 26.05.2010. In such an event, any consideration for approval can only be as per the new Regulations of 2010. The consideration can therefore be only the Regulation in force on the date of consideration for approval. In the context of the new Regulations, the consideration for approval can only be if the applicant satisfies all the requirements prescribed under the new Regulations. In such a context, various grounds raised by the petitioner are not of any avail to him.
5. On behalf of the 3rd respondent Union of India, counter affidavit is filed. According to the 3rd respondent, vide letter No.F.10-11/2009-U.3(A) dated 23.04.2009, they requested the 1st respondent to take action to verify (through inspection) as to whether the petitioner has been violating the guidelines of the UGC in the matter. They also requested the 1st respondent to advise the petitioner not to post incorrect and misleading information on its websites and public advertisements and to furnish a report on the action taken by the UGC in the matter.
5a. The 3rd respondent would submit that the petitioner was declared as an Institution deemed to be university under Section 3 of the UGC Act, 1956, subject to several conditions for compliance. One of such conditions is that the petitioner is bound by the amended stipulations which are brought into from time to time by the 1st respondent or by the 2nd and 3rd respondents. The 1st respondent has amended the UGC Guidelines (2000) on Institutions deemed to be universities and the said guidelines have been replaced by "UGC (Institutions deemed to be Universities) Regulations, 2010", which have come into force with effect from 26.05.2010.
5b. In pursuance of the general perception about the decrease in standards of higher education in certain institutions deemed to be universities, the 3rd respondent had decided to keep in abeyance all pending proposals till a thorough review of the functioning of the existing institutions deemed to be universities is completed. While the UGC was asked to review the availability of physical infrastructure and faculty resources in the Institutions Deemed to be Universities, the 3rd respondent constituted a committee on 06.07.2009 comprising eminent academic experts, namely, (i) Prof. P.N.Tandon, formerly of the All India Institute of Medical Sciences, New Delhi and a former President of the Indian National Science Academy, (ii) Prof.Govardhana Mehra, FRS, Chairman, NAAC and former Vice Chancellor, Hyderabad Central University, (iii) Prof. Anandakrishnan, former Vice Chancellor, Anna University and presently Chairman of the Indian Institute of Technology, Kanpur, and (iv) Prof. Mrinal Miri, Former Vice Chancellor, North Eastern Hill University, Shillong and former Chairman, Indian Council of Philosophical Research, New Delhi, with the following terms of reference :
(a) Governance of the institution as well as of its constituent units, if any.
(b) Quality of instruction, as well as quality of physical and academic infrastructure
(c) Standards of research and impact factor in regard to publication by its faculty/researchers
(d) Achievements in expanding the body of knowledge in any discipline(s)
(e) Fairness, transparency and reasonableness in all matters and processes relating to admission and evaluation of students, including award of degree or other qualification
(f) Compliance, if any, required to be met by the institution in terms of the notification declaring the institution as a 'deemed to be university' under Section 3 of the University Grants Commission (UGC) Act, 1956.
(g) Any other issue arising out of or relating to the above Terms of Reference which the Committee may desire to look into, including suggestions, if any, in regard to the process of declaration of institutions 'deemed to be universities'.
5c. The Review Committee submitted its report addressed to the 3rd respondent, on 19.10.2009 informing that the petitioner is included in Table 3 Institutions that have failed to satisfy most of the criteria for the deemed University status. The 3rd respondent, in principle, has accepted the recommendations of the Review Committee. However, the matter is presently sub judice in the Supreme Court in Viplav Sharma vs. Union of India (WP (C) 142 of 2006].
5d. It is further stated in the counter that it is a settled law that the extant regulations shall apply and not the regulations/guidelines that existed on the date of the application, as the application has not been disposed of as yet. Secondly, mere pendency of an application seeking declaration by an Institution as an institution deemed to be University, does not confer a vested right on the applicant to be considered under the old guidelines. Accordingly, the petitioner's application shall be considered only in accordance with the said UGC (institutions deemed to be universities) Regulations, 2010 and not as claimed by the petitioner.
6. Mr.G.Masilamani, learned Senior Counsel for the petitioner would submit that the UGC and the AICTE shall jointly conduct the inspection within a period of three months from the date of the AICTE report and the UGC shall take such action as it deems fit and that the power to inspect the University or Institution notified as Deemed to be University to the AICTE as well as to the UGC are to be seen separately in the light of the preambles and statements of their respective Acts. It is his contention that the petitioner has made an application for starting a new course to the authorities concerned and the AICTE on 12.05.2008 itself; but, the 2nd respondent AICTE has not acted on the said application, which is against the law and provisions of the AICTE Act and UGC Act. He would further contend that the inaction of the respondents is violative of Articles 14 and 21 of the Constitution of India, as it is highly arbitrary.
7. On the other hand, Mr.R.Thiyagarajan, learned Senior Counsel appearing for the 1st respondent/UGC would strenuously contend that the status of the university is in question before the Supreme Court and the petitioner being impleaded as a party respondent before the Suprem Court in Public Interest Litigation and the petitioner being one amongst the 44 institutions that were sought to be de-recognised, the question of application of new regulations is also taken cognizance of by the Supreme Court and the request of the petitioner for inspection cannot be considered and, if at all, the remedy for the petitioner is open before the Supreme Court to make an appropriate application. The learned Senior Counsel would also contend that the petitioner cannot insist upon consideration of its application dated 12.05.2008 submitted long prior to the coming into force of the Notification especially when the writ petition itself was filed on 15.07.2010. He would further submit that the petitioner's application can be considered for approval only if the petitioner satisfies all the requirements prescribed under the new Regulations.
8. Mr.M.Ravindran, learned Additional Solicitor General has made a preliminary objection to the maintainability of the writ petition, contending that the relief sought for in the writ petition cannot be granted, since the petitioner is one among the 44 institutions that are sought to be derecognised and found unfit to be continued as deemed university and that a batch of writ petitions challenging the new regulations are pending before this Court and the new regulations having also been placed before the Supreme Court, the Supreme Court has taken cognizance of the same in the writ petitions dealing with the 44 institutions, and application of the same is pending before the Supreme Court and, therefore, it may not be proper for this Court to direct the respondents to go in for an inspection and that the remedy for the petitioner lies only before the Supreme Court in making an appropriate application.
8a. In support of his stand, learned counsel for the 1st respondent/UGC has relied on the following :
(i) a decision of the Supreme Court reported in AIR 1994 SC 1837 in the case of Satyabrata Biswas and others vs. Kalyan Kumar Kisku and others "29. Apart from the fact whether A.K. Ghosh had a legal authority to sublease or not it was not open to him to grant a sublease in violation of the order. It is no use contending as Mr Chidambaram, learned counsel for the respondents does, that there was a bar to such a sublease under the terms of the status quo order. It has the effect of violating the preservation of status of the property. This will all the more be so when this is done without the leave of the court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim actus curiae neminem gravabit has no application at all to the facts of this case when in violation of status quo order a sub-tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on September 15, 1988 is what the court is concerned with. Such an order cannot be circumvented by parties with impunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right of sub-tenancy is recognised, how is status quo as of September 15, 1988 maintained? Hence, the grant of sublease is contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sublease are clearly illegal."
(ii) another decision of the Supreme Court reported in (1994) 2 SCC 647 in the case of A.P. State Financial Corporation vs. M/s.GAR RE-Rolling Mills and another "18. There is no equity in favour of a defaulting party which may justify interference by the courts in exercise of its equitable extraordinary jurisdiction under Article 226 of the Constitution of India to assist it in not repaying its debts. The aim of equity is to promote honesty and not to frustrate the legitimate rights of the Corporation which after advancing the loan takes steps to recover its dues from the defaulting party. Thus, the intention of the Legislature in using the expression without prejudice to the provisions of Section 29 of the Act clearly appears to be that recourse to the provisions of Section 29 of the Act is not prohibited, where an order or decree under Section 31 of the Act obtained by the Corporation has not been complied with or honoured by the defaulting concern or is otherwise insufficient to satisfy the dues of the Corporation and the Corporation withdraws and abandons to pursue further proceedings under Section 31 of the Act. Passing a money decree for recovery of the outstanding dues, not being within the jurisdiction of the court under Section 31 of the Act, the Corporation retains its right to recover its dues by invoking the provisions of Section 29 of the Act in the manner prescribed therein notwithstanding any order, final or interim, obtained by it under Section 31 of the Act by withdrawing from and abandoning those provisions at any stage of the proceedings. A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law. Since, the Legislature enacted Sections 29 and 31 with a view to aid the Corporation to recover its legitimate dues etc. from the defaulting party, the saving clause in Section 31 of the Act, preserving the rights under Section 29 of the Act by giving up the pursuit under Section 31 at any stage of the proceedings is available to the Corporation. The two provisions must be so harmonised as to facilitate the Corporation to recover its dues from the defaulting party. The Act was enacted by Parliament with a view to promote industrialisation and offer assistance by giving financial assistance in the shape of loans and advances etc. repayable in easy instalments. The Corporation has to recover the loans and advances, so as to be able to give financial assistance to other industries and unless it recovers its dues, the money will not remain in circulation for long. It is with this end in view that Parliament gave the Corporation the right to proceed under Section 31 of the Act, preserving at the same time its rights and remedy under Section 29 of the Act, so that the Corporations are not choked by the defaulting debtors by adopting frustrating or dilatory tactics in the proceedings in the court initiated under Section 31 of the Act."
(iii) a Supreme Court decision reported in 1995 Supp (3) SCC 434 in the case of Chhavi Mehrotra vs. Director General, Health Services "1. ... Despite the whole matter being seized of by the court, the petitioner moved and what is disturbing us is that the learned Judge of the High Court entertained an independent Writ Petition No. 1508(M/S) of 1993 before the Lucknow Bench of the High Court and obtained certain directions which would not only be consistent with the consequences of the implementation of this Courts order but would also interfere and detract from it. Learned counsel would say that it was a direct interference with the proceedings before this Court. It is a clear case where the High Court ought not to have exercised jurisdiction under Article 226 where the matter was clearly seized of by this Court in a petition under Article 32. The petitioner was eo nomine a party to the proceedings before this Court. It is an unhappy situation that the learned Judge of the High Court permitted himself to issue certain directions which, if implemented, would detract from the plenitude of the orders of this Court. The learned Single Judges perception of justice of the matter might have been different and the abstinence that the observance of judicial propriety, counsels might be unsatisfactory; but judicial discipline would require that in a hierarchical system it is imperative that such conflicting exercise of jurisdiction should strictly be avoided. We restrain ourselves from saying anything more."
(iv) yet another decision of the Supreme Court reported in (2004) 11 SCC 755 in the case of Bharati Vidyapeeth (Deemed University) and others vs. State of Maharashtra and another "16. It is now settled position in law that within the concepts of coordination and determination of standards in institutions for higher education or research and scientific and technical institutions, the entire gamut of admission will fall. Therefore, if any aspect of admission of students in colleges would fall within Entry 66 it necessarily stands excluded as has been held in Gujarat University case1. After examining the power of the State to prescribe medium of instruction in institutions for higher education it is stated in that decision as follows: (AIR p. 715, para 23) Item 25 of the Concurrent List confers power upon the Union Parliament and the State Legislatures to enact legislation with respect to vocational and technical training of labour. It is manifest that the extensive power vested in the Provincial Legislatures to legislate with respect to higher, scientific and technical education and vocational and technical training of labour, under the Government of India Act is under the Constitution controlled by the five items in List I and List III mentioned in Item 11 of List II. Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in Parliament. (emphasis supplied)
17. If the power to legislate in regard to those aspects are entirely carved out of the subject of education and vested in Parliament even at a time when education fell under List II, we find no reason now not to accept the arguments advanced on behalf of the appellant that once an institution comes within the scope of Entry 66 of List I, it falls outside the control of the provisions of Entry 25 of List III."
(v) another Supreme Court decision reported in (2004) 6 SCC 588 in the case of M.C.Mehta vs. Union of India and others "41. In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu2 this Court observed that no consideration should be shown to a builder or any other person where the construction is unauthorised. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. Judicial review is permissible if the impugned action is against law or in violation of the prescribed procedure or is unreasonable, irrational or mala fide. In para 73, this Court reiterated that in numerous decisions, it has been held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. A discretion which encourages illegality or perpetuates an illegality cannot be exercised. In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu3 this Court declined to come to the aid of a law-violator."
(vi) a decision of this court reported in (2005) 3 MLJ 350 in the case of University of Madras vs. Loordhu Ammal Educational Trust, Chennai "14. In our opinion, respondent No.1 (writ petitioner) was not justified in admitting students to B.Ed. Course, since affiliation has not been granted to it by the Madras University. Admittedly, the degree (B.Ed.), which is sought to be conferred on the students, will be that of the Madras University. Hence until and unless the Madras University grants affiliation to the writ petitioner institution, it had no right at all to admit students which would lead to conferring a degree of Madras University. If admissions are granted, even though the college has not got affiliation, then if ultimately the affiliation is refused, the students will be left in the lurch having wasted lot of time and money.
18. We are of the opinion that any college or institution admitting students for a degree in a University even before the University accords its affiliation is really committing fraud on those students and is cheating those students who are given admission, because those students can be left in the lurch if ultimately affiliation is not granted.
22. ....But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students."
(vii) yet another decision of this court reported in (2008) 1 MLJ 1217 in the case of Rukmani College of Education, Tirunelveli District vs. State of Tamil Nadu, Chennai and others "35. We have considered the provisions of the relevant statutes and the decided cases. In our opinion, it is impossible to accept the submission of the learned counsel appearing for the Institution that merely because the recognition to the institution has been granted by the NCTE, affiliation must necessarily be granted by the University. If the interpretation as suggested by the Institution is given, it would only mean that the University has to grant affiliation even if the particular institution does not conform to the standards or does not meet the requirements of the Act, Statutes, Ordinances and Regulations of the University and may have the effect of destroying the very autonomy of the University. Merely because the NCTE Act is a Central Statute, it does not mean that it has to be interpreted in a manner which destroys the very fabric and edifice of the University. Therefore, there is need to interpret the provisions of the Central Act and the State Act, harmoniously so that both are able to survive in the respective fields and also able to achieve their respective objectives. No doubt, Section 14(6) says that the University, on receipt of the order under sub-section (4) of Section 14 of the NCTE Act, shall grant affiliation to the institution where recognition has been granted. However, this does not mean that as soon as the order of recognition from the NCTE is produced before the University, it is bound to close its eyes and straightway grant affiliation. It would only mean that normally affiliation should not be refused on the ground which are covered by Section 14(3) of the NCTE Act, as the Council has already satisfied itself that the institute meets these requirements. However, this would not be an absolute rule and the University can make a limited enquiry as to whether the Institution has proper facilities, competent teaching staff, etc. in consonance with Section 14(3) of the NCTE Act. If it is found that the college does not have the adequate facilities, qualified teaching staff, adequate financial resources, etc. or permission has been obtained by deception or fraudulent means, it would be open for the University to refer the matter to the NCTE for appropriate action. After all, it is the University which confers the degree. It is the credibility, reputation or goodwill of the University which is at stake. Therefore, in our opinion, no institution can claim affiliation as a matter of right."
9. I have heard Mr.G.Masilamani, learned Senior Counsel appearing for J.Saravanavel, learned counsel for the petitioner; Mr.R.Thiyagarajan, learned Senior Counsel for Mr.P.R.Gopinathan, learned counsel for the first respondent/UGC; Mr.AR.L.Sundaresan, learned Senior Counsel appearing for Mrs.A.L.Gandhimathi, learned counsel for the 2nd respondent/AICTE and Mr.M.Raveendran, learned Additional Solicitor General appearing for Mr.A.S.Vijayaraghavan, learned Standing Counsel for Central Government/third respondent.
10. Admittedly, the petitioner was declared as an Institution deemed to be university under Section 3 of the UGC Act, 1956, subject to several conditions for compliance. One of such conditions is that the petitioner is bound by the amended stipulations which are brought into force from time to time by the respondents 1 to 3. The 1st respondent has amended the UGC Guidelines,2000, on Institutions deemed to be universities and the said guidelines have been replaced by "UGC (Institutions deemed to be Universities) Regulations, 2010", which have come into force with effect from 26.05.2010.
11. In view of the general perception about the decrease in standards of higher education in certain institutions deemed to be universities, the third respondent has decided to keep in abeyance all pending proposals till a thorough review of the functioning of the existing institutions deemed to be universities is completed. While UGC was asked to review the availability of physical infrastructure and faculty resources in the Institutions Deemed to be Universities, the third respondent constituted a committee on 06.07.2009 comprising eminent academic experts with the following terms of reference :
(a) Governance of the institution as well as of its constituent units, if any.
(b) Quality of instruction, as well as quality of physical and academic infrastructure
(c) Standards of research and impact factor in regard to publication by its faculty/researchers
(d) Achievements in expanding the body of knowledge in any discipline(s)
(e) Fairness, transparency and reasonableness in all matters and processes relating to admission and evaluation of students, including award of degree or other qualification
(f) Compliance, if any, required to be met by the institution in terms of the notification declaring the institution as a 'deemed to be university' under Section 3 of the University Grants Commission (UGC) Act, 1956.
(g) Any other issue arising out of or relating to the above Terms of Reference which the Committee may desire to look into, including suggestions, if any, in regard to the process of declaration of institutions 'deemed to be universities'.
12. Thereafter, the Review Committee submitted its report addressed to the third respondent on 19.10.2009, informing that the petitioner is included in Table 3 Institutions that have failed to satisfy most of the criteria for the deemed University status. The third respondent, in principle, has accepted the recommendations of the Review Committee. However, the matter is sub judice in the Supreme Court in the case of Viplav Sharma vs. Union of India in WP (C) No.142 of 2006.
13. In the year 2006, one Viplav Sharma had filed a Public Interest Litigation in W.P.No.142 of 2006 before the Supreme Court of India, seeking suitable directions directing the UGC to frame regulations. The said direction was sought alleging that several dubious institutions had got the status of Deemed University; the admission and collection of fees by those institutions were not under the control of UGC; the UGC and HRD Ministry had allowed the Deemed Universities to have various campuses and there was no Regulation framed by UGC to control those institutions. Thereafter, the Central Government constituted a Committee called Tandon Committee to review the position. There was a simultaneous review by UGC also. The reports made by the Committees have been placed before the Supreme Court in the pending Public Interest Litigation. Based on the report of the Tandon Committee, the Central Government has categorized the various deemed to be Universities into Class A, B and C. Institutions which are free from any deficiencies are grouped under "A"; Institutions where there were deficiencies and which have been granted three years to rectify the deficiencies and defects are grouped under class "B", and class "C" comprised of 44 Institutions which were recommended for de-recognition. All those 44 Institutions falling under Class "C" got themselves impleaded in the public interest litigation before the Supreme Court and got an order of status quo, by virtue of which, they are continuing to function. The matter is still pending before the Supreme Court.
14. In the meantime, the UGC framed new regulations called the UGC (Institutions Deemed to be Universities) Regulations, 2010 and published the same in the Gazette of India on 26.05.2010. It is informed by the learned counsel for the Union of India and the University Grants Commission that the new regulations have been placed before the Supreme Court and the Supreme Court has taken cognizance of the same while hearing the matter of 44 institutions and the petitioner also filed a writ petition challenging the new regulations,2010. The petitioner has already got impleaded before the Supreme Court in the Public Interest Litigation referred to above and the HRD Ministry is directed to file separate counter affidavit in those 44 cases where the institutions were sought to be de-recognized.
15. The Supreme Court, in the case of Chhavi Mehrotra vs. Director General, Health Services, 1995 Supp (3) SCC 434, has categorically held that despite the whole matter being seized of by the court, the petitioner moved and what is disturbing us is that the learned Judge of the High Court entertained an independent Writ Petition No. 1508(M/S) of 1993 before the Lucknow Bench of the High Court and obtained certain directions which would not only be consistent with the consequences of the implementation of this Courts order but would also interfere and detract from it.... It is a clear case where the High Court ought not to have exercised jurisdiction under Article 226 where the matter was clearly seized of by this Court in a petition under Article 32. The petitioner was eo nomine a party to the proceedings before this Court. It is an unhappy situation that the learned Judge of the High Court permitted himself to issue certain directions which, if implemented, would detract from the plenitude of the orders of this Court. The learned Single Judges perception of justice of the matter might have been different and the abstinence that the observance of judicial propriety, counsels might be unsatisfactory; but judicial discipline would require that in a hierarchical system it is imperative that such conflicting exercise of jurisdiction should strictly be avoided.
16. In view of the above categorical ruling of the Supreme Court, since the issue is sub judice before the Supreme Court in the case of Viplav Sharma vs. Union of India in WP (C) No.142 of 2006 and also this Court being informed by the learned counsel for the Union of India and the University Grants Commission that the new regulations have been placed before the Supreme Court and the Supreme Court has taken cognizance of the same while hearing the matter of 44 institutions in the above case and the petitioner is one of the parties thereto, the hands of this Court are tied to deal with the matter any further on merits. The only course open to the petitioner is to make an appropriate application before the Supreme Court seeking for a direction for inspection also, since the order of status quo granted by the Supreme Court on 25.01.2010 cannot be taken advantage of by the petitioner, by asking for an inspection.
17. Accordingly, this Writ Petition is disposed of, with a direction to the petitioner to make an appropriate application before the Supreme Court if they have the advantage of the status quo order for inspection, and it is the Supreme Court alone, but not this Court under Article 226 of the Constitution of India, that shall look into the matter. No costs. Consequently, the connected M.P.No.1 of 2010 is closed.
Index : Yes 27-09-2010
Internet : Yes
abe/dixit
To
1.The Chairman.
University Grants Commission,
Bahadursha Zafar Marg,
New Delhi 110 002,
2.The Member Secretary,
All India Council for Technical Education,
7th Floor, Chanderlok Building,
Janpath, New Delhi.
3.The Secretary,
Ministry of Human Resources Development,
New Delhi.
Note to Office :
Issue Order Copy today.
V.DHANAPALAN,J.
Abe/dixit
W.P.No.15558 of 2010
Dated: 27.09.2010