Rajasthan High Court - Jaipur
Prakash Chaturvedi And Anr. vs State Of Rajasthan And Anr. on 3 July, 2006
Equivalent citations: RLW2006(3)RAJ2424, 2006(4)WLC515
Author: N.N. Mathur
Bench: N.N. Mathur, Gopal Krishan Vyas
JUDGMENT N.N. Mathur, J.
1. Petitioners Prakash Chaturvedi and Bhopal Chand Mehta by way of instant writ petition under the label of "Public Interest Litigation" have challenged the validity of Rajasthan Private Universities Act. 2005, hereinafter referred to as "the Rajasthan Act". It is submitted that the Act of 2005 is liable to be quashed in view of the judgment of the Hon'ble Supreme Court rendered in Professor Yashpal v. State of Chattisgarh , which more or less fully applies to the instant case. It is averred that in Prof Yashpal's case, Chhatisgarh Niji Kshetra Vishwavid-hyalaya (Sthapana Anr. Viniyaman) Adhiniyam 2002, hereinafter referred-to as "the Chhatisgarh Act", has been struck down by the Hon'ble Supreme Court. The Rajasthan Act, for all practical purposes except some chances, is substantially similar to the Chhatisgarh Act. Petitioners have also challenged the validity of the impugned Act of 2005 on the ground of non-competence of Rajasthan State Legislative Assembly. It is submitted that the State Legislature appears to have enacted the impugned Act of 2005 under the impression that the matter falls within the domain of Entry 25 of List-Ill of Schedule 7 of the Constitution of India. According to the petitioners, the Entry 25 of List-Ill can be operative only after University has been established and has started functioning so as to enable the regulatory bodies to decide as to whether University is fit to act as such and the status of State Universities can be given by the UGC in exercise of powers conferred upon it by Section 3 of the UGC Act.
2. On the other hand, it is submitted that the impugned Act has been enacted considering the apparent need to boost up higher education scenario in the State by introducing private parties especially through establishment of Self Financed Private Institutions. It is submitted that His Excellency the Governor of Rajasthan made and promulgated the Rajasthan Self financed Private Universities Ordinance, 2004- on 18.09.2004. The Apex Court delivered the judgment in Prof. Yashpal's case (supra) on 11.02.2005, whereby the Chattisgarh Act was struck down. The Rajasthan Self Financed Universities Bill was placed before the Rajasthan Legislative Assembly on 21.02.2005. On the basis of the resolution mooted by the Hon'ble Minister, the Incharge of the Higher Education, the Rajasthan Legislative Assembly directed the Select committee to examine the Bill keeping in view the decision of the Apex Court in Prof. Yashpal's case (supra). Accordingly, the changes were made keeping in view the lacunaes pointed out in Chattisgarh Act and the observations made. Thus, the Select Committee recommended modifications in the Act to bring the Bill strictly in accordance with the law laid down by the Apex Court in Prof Yashpal's case (supra). Learned Counsel has pointed out various provisions under the impugned Act comparing with the Chattisgarh Act to show that the impugned Act does not suffer from the defects pointed out in the Chattisgarh Act.
Issue Involved - Need to Revitalize Higher Education:
3. The issue involved in the instant petition is of contemporary significance, as it pertains to "Higher Education" which in recent times, has undergone enormous change. Since the formation of Universities around 1500 years ago, the higher education has seen many transformations. In antiquity, India remained the centre of education. The world famous Universities of Nalanda and Takshshila attracted the students across the Sea. The word "Vishwa Vidyalaya" itself expresses international character of the education. Exchange of knowledge whether through import or export, enhances the mental horizon and widens perception of the scholars. The changed Scenario has compelled the Educationists, Economists, Legislators and the Judges to consider the potential for growth of trade in the educational services in our Country. It is of course true that the Education in general has been considered as a noble profession as such its commercialization can not be permitted. However, it cannot be denied that the traditional Universities mostly affiliated Universities are ill-equipped to meet the challenges in the contemporary world. Although the Governments continue to spend on primary and secondary education, they are becoming more and more critical about financing higher education. There have been private initiatives with purely profit motives by unscrupulous persons, which has led to commercialization of Higher Education as is evident from the gross misuse of the Chhatisgarh Act, wherein within a year, 112 Universities were established. But it would be a travesty, if we close our eyes to the new challenges and the revolutions, which have taken place in the world of Education in last two decades mainly because of advancement in technology and the growing relations between the education-knowledge-health-economy of a nation. It is now economy that is linked with knowledge and Society that has foundation of knowledge. Education has, therefore, become a prime agenda for both developed and developing Nations. Thus, people and Nations are talking about trade in Education. This is what has forced Nations to talk about Education as a Service Industry and, therefore, inclusion of Education in W.T.O. regime under the "General Agreement on Trade Services" is already on cards. 2005 onwards GATS Rules permit Universities worldwide to set up centres anywhere in the World. Education has become marketable commodity which can be imported and exported. Indian Educational Institutions have been producing Engineers, Doctors, Management Executives holding key positions all over the World. The concept of World brotherhood is not mere theory but a, practice can only be ushered with adoption of a dynamic proposition of Export of Higher Education. This cannot be merely viewed either from purely commercial point or bureaucratic or copy book approach. Misuse of a provision of law by unscrupulous persons at a particular point of time in a particular region, should not withhold genuine efforts of private sector participation to promote trade in Educational Service, which is imperative in the existing circumstances.
Professor Yashpal's Case:
4. Professor Yashpal's case is landmark judgment in the field of Higher Education rendered by the Apex Court. It has material bearing on the issue involved in the instant case. In the said case, Prof. Yashpal, an eminent Scientist and former Chairman, UGC, had challenged the constitutional validity of the Chhatisgarh Act. The said Act provided for the establishment of self-financed private universities-for imparting higher education and to regulate their functions and for matters connected therewith or incidental thereto. By Section 5 of the Act, the State was empowered to incorporate and establish the University by issuing a notification in the Gazette and Section 6 permitted such universities to affiliate any college or other institution or set up more than one campus with the prior approval of the State Government.
5. In the said petition, it was averred that the State Government established Universities by issuing notifications in an indiscriminate and mechanical manner without having the slightest regard to the availability of any infrastructure, teaching facility or their financial resources. In a short span of about one year as many as 112 universities were established and many of them had absolutely no buildings or campus and were running from one-room tenements. It was further averted that irrespective of the fact that the universities were wholly incapable of imparting any education much less a quality education in absence of basic infrastructure like classrooms, libraries, laboratories or campus, they were empowered to award degrees. The private universities started running professional courses without taking prior permission from the regulatory bodies such as All India Council of Technical Education (AICTE), Medical Council of India (MCI), Dental Council of India (DCI) etc. It was apprehended that in absence of requisite permission from the statutory bodies, the degrees and certificates awarded by such universities would not be recognized, as a result thereof the students studying in such universities and obtaining the degrees would suffer immense loss, both in terms of money and also the time spent in completing the courses. It was argued that the UGC Act has been made nugatory as private universities were offering courses without subscribing to the demands laid down by UGC and there being no homogeneity of the course content. It was also complained that the Universities have been established merely to confer degrees and they have their own created large number of degrees and. diplomas, totally unheard of.
6. In reply to the petition, the respondent State of Chhatisgarh took the stand that in view of Entry 32 List 11 of the Seventh Schedule to the Constitution, the State had the legislative competence to make an enactment regarding incorporation of a university. According to the State of Chhatisgarh, the Act was enacted to facilitate establishment of private universities with a view to create supplementary resources for assisting the State Government in. providing quality higher education. It was averred that the notifications establishing the universities were issued on the basis of the representations made by the sponsoring bodies as set out in their project reports. Later on, it was found that functioning of the universities post-notification was dismal and completely belied the expectations which the State Government had in that behalf, raising serious concern about the academic interests of the students seeking admission therein. This compelled the State Legislature for amendment of the Act during the pendency of the writ petition in the name of Chhatisgarh Niji Kshetra Vishwavidhyalaya (Sthapana Aur Viniyaman) Sanshodhan, Adhiniyam, 2004. After expiry of the time limit fixed in the said amending Act, 59 universities were de-notified on account of their failure to comply with the amended provisions.
7. The main feature of the amending Act, 2004 was to set up a "Regulatory Commission" for the purpose of ensuring appropriate standards of teaching, examinations, research, protection of the interests of the students and ensuring .reasonable service conditions of employees by the university. The Regulatory Commission was to function under the general control of the Visitor. It consisted of two full time and not exceeding two part-time members to be appointed by the Visitor. It was made obligatory on the part of the Regulatory Commission to take, in consultation with the university and other bodies concerned with regulatory functions of the higher education system in the Country such as UGC, AICTE, NCTE, MCI, Pharmacy Council and such agency/agencies established by the Central Government for regulation of education, such steps as it considers necessary for determination and maintenance of standards of teaching, examination and research in the university.
8. However, the Supreme Court was of the view that the amending Act, 2004 did not make any appreciable change in the matter of issuing a notification for establishment of a university. The Court found that even after setting up Regulatory Commission, the possibility of establishing a University by issuing a notification only on the basis of paper Report, could not be ruled out. It was noted that process provided to the effect that the Regulatory Commission on receipt of the project report, proof of creation of the endowment fund and possession of land or in lieu thereof proof of deposit of additional fund and on being satisfied with the proposal to establish University, may advise the State Government to issue a notification but it did not make any substantial change. Thus, in the opinion of the Apex Court, Sections 5 and 6 of the amended Act suffered from the same vice as the un-amended provisions and, as such, were liable to be struck down being ultra vires. Dealing with the competence, the Court held that the State Legislature may make an enactment providing for incorporation of universities under Entry 32 of List 11 and also generally for universities under Entry 25 of List 111. The Apex Court explained and interpreted the word "University" occurring in Entry 32 referring its meaning given in Halsbury's Laws of England and the New Encyclopedia Britannica which means a whole body of teachers and scholars engaged at a particular place in giving and receiving instruction in the higher branches of learning and as such persons associated together as a society or corporate body, with definite organization and acknowledged powers and privileges and forming an institution for promotion of education in higher or more important branches of learning and also the colleges, buildings and other property belonging to such body. The Court also referred to the other necessary attributes of a University as plurality of teachers teaching more than one higher faculties and other facilities for imparting instruction and research, provision for residence and certain standard of instruction providing for graduate and postgraduate levels of study. The Court emphasized that a University presupposes existence of a campus, classrooms, lecture theatres, libraries, laboratories, offices, besides some playgrounds and also sports facility for overall development of personality of the students. The Court further observed that though incorporation of a University is an State subject under Entry 32 of List II but as basically, a University is an institution for higher education and research, the area of higher education and research is covered by Entry 66 of List-1, which speaks of coordination and determination of standard in institutions for higher education or research and scientific and technical institutions. Resolving the clash between the powers of the State and the Union, the Court held that while incorporation of universities as a legislative head being in the Stale List, the whole gamut of the university which will include teaching, quality of education being imparted, curriculum, standard of examination and evacuation and also research activity being carried on, will not come within the purview of the State Legislature on account of a specific entry on coordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which Parliament talons is competent. The Court emphasized that it is the responsibility of the Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained. The Court observed that in order to achieve the aforesaid purpose, the Parliament enacted the UGC Act. In view of Section 22 of the UGC Act, the right of conferring or granting degree can be exercised only by a university or an institution deemed to be university under Section 3 of the UGC Act or institution especially empowered by an Act of Parliament to confer or grant degrees. Dealing with the Chhatisgarh Act, the Court held that the enactment simply clothes a proposal submitted by a sponsoring body or the sponsoring body itself with the juristic personality of a university so as to take advantage of Section 22 of the UGC Act and thereby acquires the right of conferring or granting academic degrees but without having any infrastructure or teachin facility for higher studies or facility for research is not contemplated by either of these entries. Thus, the Court found the Chhatisgarh Act a fraud on the Constitution and, as such, declared wholly ultra vires. The Court observed in para 49 as follows:
49. The whole scheme of the impugned Act, especially the effect of Sections 4, 5 and 6 thereof and the result which it has led to in notifying as many as 112 universities within a short span of one year on the basis of proposals made on paper with many or most of them having almost zero infrastructural facilities clearly shows that the relevant provisions of the Act have completely stultified the power of Parliament under Entry 66 to make provision for coordination and determination of standards in institutions for higher education like universities, the provisions of the UGC Act and also the functioning of the University Grants Commission. Sections 5 and 6 of the impugned Act are, therefore, wholly ultra vires the Constitution and are liable to be struck down.
9. Dealing with the contention that the policy of the Government of India that the impugned enactment is an experiment in the changing world Scenario where the trend is towards globalization, the Court held that the impugned Act which enables only a proposal of a sponsoring body to be notified as a I university, is not likely to attract private capital and a University so notified cannot provide education of any kind much less of good quality to a large body of students. The Court observed as follows:
What is necessary is actual establishment of institutions having all the infrastructural facilities and qualified teachers to teach there. Only such colleges or institutions which impart quality education allure the best students. Until such institutions are established which provide a high level of teaching and other facilities like well-equipped libraries and laboratories and a good academic atmosphere, good students would not be attracted. In the current scenario, students are prepared to go to any corner of the country for getting good education. What is necessary is a large number of good colleges and institutions and not universities without any teaching facility but having the authority to confer degrees. If good institutions are established for providing higher education, they can be conferred the status of a deemed university by the Central Government in accordance with Section 3, of the UGC Act or they can be affiliated to the already existing universities. The impugned Act has neither achieved nor is capable of achieving the object sought to be projected by the Learned Counsel as it enables a proposal alone being notified as a university.
10. In view of the findings recorded, the Apex Court declared the provisions of Sections 5 and 6 of the Act ultra vines and quashed the gazette notifications notifying the establishment of universities under the said Act.
Challenge to the Rajasthan Act, 2005:
11. Reverting to the case in hand, the principal contention of Mr. M. Mridul, Senior Advocate, appearing for the petitioners is that in view of the judgment of the Supreme Court in Prof. Yashpal's case whereby the Chhatisgarh Act has been struck down, the Rajasthan Act of 2005 being substantially the same, except some changes here and there, is also liable to be struck down. It is submitted that under the impugned Act, a. University is to be established only on the basis of the project report without having any infrastructure or without fulfillment of norms and standards as laid down by the statutory bodies like UGC, AICTE etc. Learned Counsel has also raised contention with respect to competence of the State Legislature of enactment of the impugned Act under Entry 25 of List 111. On the other hand, it is submitted by Mr. B.P. Agrawal, learned Advocate General, that there is a sea difference in between the Chhatisgarh Act and the impugned Rajasthan Act of 2005. To substantiate the contention, he has referred to relevant provisions comparing both the Acts. It is submitted that the impugned Act has, provided a mechanism to ensure that before notification of establishment of a University is issued, the substantial infrastructure as required for establishing a University physically comes into existence. Learned Counsel has also cited a decision of the Apex Court in State of Bihar v. Bihar Distillery Ltd. , for the proposition that the Court should try to. sustain validity of the Act to the extent possible. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed.
12. Mr. M.S. Singhvi, Learned Counsel appearing for the intervener, has emphasized the need of establishing private Universities in the Country. He has relied on a decision of the Apex Court in T.M.A Pai Foundation v. State of Karnataka . While dealing with the decision of. Prof. Yashpal's case (supra), it is submitted by Mr.Singhvi that the judgment has to be read in right perspective. He has also cited the decision of the Apex Court in State of Karnataka v. C. Lalitha , for the proposition that a judgment is not be read as a statute but it must be construed as if it had been rendered in accordance with law.
Comparing Chhatisgarh (Amendment) Act 2004 And Raj as than Act 2005:
13. The controversy involved in the instant case is as to whether the impugned Rajasthan Act is substantially similar to the Chhatisgarh Act which has been declared ultra vines by the Apex Court in Yashpal's case (supra). It is significant to notice that the objects and reasons of the impugned Act itself speak that the. Act has been framed taking into consideration several judgments of the Supreme Court including the judgment dated 1 1.02.2005 in Prof. Yashpal's case (supra). It would be convenient to extract the objects and reasons as well as the comparative Chart of the relevant provisions of Chhatisgarh Act, 2002 as amended upto 17.03.2004 and the Rajasthan Act, 2005:
Objects and Reasons Culture and heritage is directly linked to the fundamental values of life provided by education, India an epitome in the field of education is able to meet the challenges of paradigm shift in the pluralistic society only by abiding with the principle of 'unity in diversity'. The Constitution of India particularly Articles 29, 45, 46, several judgments of the Supreme Court including the judgment dated 11.02.2005 in Prof. Yashpal and Anr. v. State of Chhatisgarh and Ors. and the National Policy on education updated in 1992 has enjoined on the States the duty to provide quality education.
UGC by its 2003 Regulation has provided for creating a regulatory mechanism laying down the conditions for the establishment and operation of private universities and for safeguarding the interests of the student community with adequate emphasis on the quality education and to avoid commercialization of higher education etc. These institutions must maintain the academic character in their work and be the makers of future leaders of thought and action in the country.
The Bill seeks to make Rajasthan as a hub of maintaining highest standards of teaching and conducting examination of international standards and provide, the necessary legal frame work for institution having sufficient background, expertise, and resources in the field of education where under education imparted is universal, embracing many branches and there is proficiency in the branches taught. The Universities so established must serve the twin purpose of educating its members and advancing the frontiers of education and also provide the highest level of social and intellectual life to its members.
The Chhatisgarh Niji Kshetra Vish- The Rajasthan Private Universities
wavidhyalaya (Sthapana Aur Vlnl- Act, 2005:
yamon) Sanshodhan Aditiniyam 2004:
PREAMBLE: For establishment and incorporation of
Private Universities.
Establishment of Self Financed Private 2(v): "Statutes', "Ordinances and
Universities. "Regulations" mean respectively, the
Section 2; Definition Clause:- Statutes, Ordinances and Regulations
(a) "Ordinance" means an Ordinance of the University made under this Act;
of the University; , 2(u). "sponsoring body" in relation to a
(b) "Sponsoring Body" in relation to a university established under this Act
University means: moans-
(i) a Society registered under the Mad- (i) a, Society registered under the
hya Pradesh Societies Registrikaran Ad- Rajasthan Societies Registration Act,
hiniyam, 1973 (No.44 of 1973) 1958: (Rajasthan Act No.28 of 1958) or
(ii) any Public Trust; or the Societies Registration Act, I860
(iii) a Company registered under Sec- (Central Act No.2! of 1860); or
lion 25 of the Companies Act, 1956 (No. (ii) any Pubiic Trust registered under the
1 o( 195(i): Rajasthan Public Trusts Act, 1959 (Act
(c) "Statute means a Statute of the Uni No. 42 of 1959) or the Indian Trus, Act,
versity: 1882 (Central Act No. 2 of 1882 or under
(d) University means a University es- the relevant laws in any other State of
tablished under Sub-section (1) of Sec- Union territory; or
tion 5. (iii) a Company registered under
(e) "main campus" means the campus Section 25 of the Companies Act, 1956
of the university where main office of (Central Act No. 1 of 1956);
the university is situated and where the
Vice Chancellor and Registrar reside (za) "university" means a vniversity
and where not less than three Universit established and incorporated under
Teaching departments/ Schools of stud- Sub-section (1) of Section 6
ies are located. (o) "Off-campus Centre" means al
(f) "Off-campus Centre" means a centre centre of the University established by
of the university established by it out it outside the main campus operated
side the main campus (within or outside and maintained as its constituent unit,
the State) operated and maintained as having the University's complement of
its constituent facilities, faculty and facilities, faculty and staff,
staff. (x) "study centre" means a centre
(g) "Off-shore campus" means a cam- established and maintained or
pus of the university established by it recognized by the university for the
outside the country, operated and main- purpose of advising, Counselling or for .
tained as its constituent unit, having the rendering any other assistance required
University's complement of facilities, by the students in the context of
faculty and staff. distance education.
(h) "study centre" means a, centre es- (g) "Fee" means connection made by the
tablished and maintained or recognized university from the students by
by the University for the purpose of ad- whatever name it may be called, which
vising, Counselling or for rendering any is no, refundable. "
other assistance required by the stu- (r) "Regulating Body" means a body
dents in the context of distance educa- established by the Central Government
(OTee" means collection made by the for layins down nomes. and conditions
university from the students by what- for ensuring academic standards of
refundable. NCTE, MCI, PCI, NAAC, ICAR, DEC, CSIR
(j) "Regulatory Commission means the etc. and includes the State Govern-
Regulatory Commission established un- ment;
der the Adhiniyam. (a)"AICTE" means All India Council 'of
Section 3 The object of the University Technical Education established under
shall be- All India Council of Technical Education
1. To provide instructions, teaching and Act, 1987 (Central Act No. 52 of 1987);
training in Higher Education and make (B) "CSIR" means the Council of
provisions for research, advancement Scientific and Industrial Research, New
and dissemination of knowledge; Delhi- a funding agency of the Central
2. to create higher levels of intellectual Government;
abilities; - (c)"DEC" means the Distance Education
3. to establish state of the art facilities Council established under Section 28 of
for education and training; the Indira Gandhi National Open Unive-
4. to carry out teaching and research rsity Act, 1985 (Central Act No.50 of
and offer continuing education pro- 1985);
grammes; (d) "distance Education" means
5. to create centres of excellence for education imported by combination of
research and development and for shar- any two or more means of
ing knowledge and its application; communication, viz. Broadcasting,
6. to provide consultancy to the industry telecasting, correspondence courses, and public organizations; seminars, contact programmes and
7. to establish main campus in Chhattis- any other such methodology;
garh and to have study centres at differ- (e) "DST" means department of Science ent places in India and other countries; and Technology of the Central
8. to establish examination centres; Government;
9. to institute, degrees, diplomas, (f) "employee" means a person certificates of examination, or any appointed by the university to work in other method of evaluation; the university, colleges institutions or
10. to ensure that the standard of de- study centres and includes teachers, grees, diplomas, certificates and other officers (other than the Visitor) and academic distinctions are not lower other employees of the university;
than those laid down by AICTE, NCTE, (h) "Government" means the State UGC, MCI, Pharmacy Council, and such Government of Rajasthan; agency/agencies established by the (i) "higher education" means study of a Central Government for regulation of curriculum or course for the pursuit of education and the Regulatory Commis- knowledge beyond 10+2 level; , sion; and; (j) "hostel" means a place of residence
11. to pursue any other objective as may for the students of university, or of its be approved by the Regulatory Commis- colleges', institutions or centres sion. maintained or recognized to be as such Section 4: Proposal for establishment of by the university;
the University (k) "ICAR" means the Indian Council of (1)(a) An application containing the Agriculture Research, a society
Project Report to establish a university registered under the Societies Re-
for carrying out any or all the objectives iteration Act, 1860 (Central Act No.21 of enumerated in Section 3 of the Adhiniyam 1860);
shall be made to the Regulatory Com- (1) "MCI" means Medical Council of mission form as may be prescribed, at India, Delhi; least one year before the date from (m) "NAAC" means the National Council which it intends to start the university of Assessment and Accreditation, (b) The Sponsoring Body shall submit Bangalore, an autonomous institution of along with its application as per (a) the UGC; above, (n)"NCTE" means the National Council (i) Proof of having established an En- of Teacher Education, Delhi; dowment Fund of Rs.2 crore; (p) "PCI" means Pharmaceutical (ii) Proof of being in possession of 15 Council of India, Delhi. acres of land, in case the main campus (q) "prescribed" means prescribed by is proposed to be established within the Rules made under this Act; Municipal Corporation Limits is of (s) "Rules" means the Rules made under Raipur; this Act; or 25 acres of land in case the main (t)'Schedule" means the schedule to campus is proposed to be established this Act.'
elsewhere in the State and in addition, (w)"Student of the University" means a if the land has been obtained on lease, person enrolled in the University for the period of lease should be atleast 30 taking a course of study for a degree, years. In case, the Sponsoring Body diploma or other academic distinct on does not possess the required land, it duly instituted by the university, shall furnish proof of having deposited including a research degree;
an additional sum of Rs. 2 crore in the (y)"teacher" means a Professor, Reader, manner prescribed. Withdrawals out of Lecturer or any other person required to this additional fund shall be permitted impart education or to guide research by the Regulatory' Commission for the or to render guidance in any other form purchase of land for the use of the Uni- to the students for pursuing a course of versity. study of the University;
Provided that where the main campus (z)"UGC" means the University Grants of the university is proposed be estab- Commission, established under the lished in a Scheduled Area of the State, University Grants Commission Act, only fifty percent of. the amounts in (i) 19-)01 (Central Act No. 3 of 1956);
and (ii) above need t o .be deposited. Section 3. The object of the university,
(c) The Endowment Fund shall be used Following shall be the objects of the as security deposit to ensure that the university-
University complies with the provisions (1) to provide instructions, teaching and of the Adhinlyam and functions as per training in higher education and make the provisions of the Adhiniyam, the Provisions for research advancement Statutes and the Act. The Regulatory and dissemination of knowledge;
Commission shall have the power to for- (2) to create higher levels intellectu alabilities;
feit a part or whole of the Endowment (3) to extablish state of the art facilities fund, in case of non-compliance in the for education and traini manner as may be prescribed. (4) to carry out teachings and researcn (d) The Endowment Fund shall be in- and offer continuing education vested in the manner as may be pre- programmes; scribed. (5) to create centres of excellence for (e) The Sponsoring Body shall be per- research and development and for mitted to use income from the Endow- sharing knowledge and its application.' ment Fund for the development of the (6) to establish campus in Rajasthan University. and to have study centres at different,
(1 -A) A University already established in places within its jurisdiction;
the State under the provisions of the (7) to establish'examination centres;
Adhiniyam shall comply with the provi- (8) to institute degrees, diplomas sions of Clauses (h) to (e) of Sub-sec- certificates and other academic tion (1,) of Section 4 above by distinctions on the basis of
30.06.2004 or else the Notification is- examination, or any such other method;
sued by the Government under Sub-sec- (9) to ensure that the standards of tion 5 of the Adhiniyam shall be liable to degrees, diplomas, certificates and be cancelled on the recommendations other academic distinctions are not of the Regulatory Commission. In the lower than those laid down by AICTE, event of such denotification of the Uni- NOTE, UGC, MCI, Pharmacy Council, versity, completion of courses, conduct and other similar agency/agencies of examinations, award of the degrees established by the Central Government to the students of the university may be for regulation of education;
assigned to another University in such a (10) to open study centers within its manner that the interests of the students jurisdiction;
are not affected. Expenditure made in (11) to set up off campus centre within this behalf shall be made good from the and out of the state. subject to the General Fund of the University con- permission of the concerned State, any cerned. law made by the Parliament and any
(2). The Project Report shall contain the regulation, rules, etc. made by the following particulars namely- regulate nobodies;
(a) the objects of the University along- (1) to purser any for objective as with the details Of the Sponsoring Body; be approved by the State Government.
(b) the extent and the status of the Uni- Section 4. Submission of proposal for versity and the availability of land; establishment of a University and its
(c) the nature and the type of pro- evaluation.-
grammes of study and research to be (1) An application containing the undertaken in the university during a proposal and the project report to period of not less than the next five established a university in private sector years; shall be made by the sponsoring body to (d) the nature of faculties, courses of the State Government, alongwith such study and research proposed to be fee as may be prescribed. started; (2) The project report must contain the (e) the campus development such as following particulars, namely:- building, equipment and structural (a) the details of the sponsoring body amenities; alongwith the copies of its registration
(f) the phased outlays of capital expen- certificate, constitution and bye-laws;
diture for a period not less than the next (b) the information regarding financial five years; resources of the sponsoring body along
(g) the item wise recurring expenditure, with audited accounts for the past five sources of finance and estimated ex- years;
penditure for each student; (c) the name, location and head (h) the scheme for mobilizing resources quarters of the proposed university; and the cost of capital thereto and the (d) the objectives of the University., manner of repaying to the Sponsoring (e) the availability of land and details of body and other sources; buildings and infrastructure facilities, if (i) the scheme for the generation of already exist;
funds internally through the recovery of (f) availability of academic facilities fee from students, revenues anticipated including teaching and non-teaching from consultancy and other activities re- staff, if any, at the disposal of sponsoring lating to the objects. body;
(j) the details of expenditure on unit (g) the details of plans for campus cost, the extent of concessions or re- development such as construction of
bates in fee, free studentship and schol- buildings development of structural arship for students belonging to amenities and infrastructure facilities economically weaker sections and the and procurement of equipment etc to fees structure indicating varying rate of be undertaken before the university fee, if any, that would be levied on non- starts functioning and phased resident Indians and students of other programme for first five years;
nationalities. (h) the phased outlays of capital (k) the years of experience and exper- expenditure proposed for the five years tise in the concerned disciplines at the and its sources of finance; command of the sponsoring Body as (i) the nature and the type of well as the financial resources. programmes of study and research (I) the system to select students for ad- proposed to be undertaken by the mission to the courses of study at the university and their relevance to the University.' development goals and employment (m) such other details as may be pre- needs of the State and phasing of such scribed by rules framed under this Ad- programmes over the first five years hiniyam. with course wise enrolment targets; (3) The Regulatory Commission on re- (j) the experience and expertise in the
ceipt of the application, Project Report, concerned disciplines at the command proof of creation of Endowment Fund of the sponsoring body;
and of possession of land to be used (k) the nature of facilities, courses of exclusively for running the University or study and research proposed to be in lieu thereof proof of deposit of addi- started;
tional fund as per the provisions of Sub- (1) the estimated recurring expenditure section (1) above, shall make such en- course wise or activity wise, source of quiries as it may deem necessary within finance and estimated expenditure per 45 days from the date of application. students:
(4) If the Regulatory Commission is sat- (m) the scheme for mobilizing isfied with the proposal to establish the resources and the cost of capital thereto university, it may advise the State Gov- and the manner of repayment to such ernmeni to issue a Notification. sources;
(n) the scheme for the generation of
Section 5 Establishment of the Univer- funds internally through the recovery of
sity; fee from students, revenues anticipated
from consultancy services and other
(1)(a) the State Government on receipt activities relatinge the objects of the
of the advice of the Regulatory Commis- university, and other anticipated
sion under Sub-section (4) of Section 4 income;
of the Adhiniyam, "ay declare, by notifi- (o) the' proposed fee structure with cation in the official gazette, that the reference to the details of expenditure University is established by such name on unit cost and the extent of and with such jurisdiction and location concessions or rebates in fee or free-
of main campus, from such date as may ships and scholarships to the poor be mentioned in the notification. students for economically poor or (b) All such notifications issued under socially backward families, including Sub-section (1) of Section 5 of the Ad- Scheduled Castes, Scheduled Tribes, hiniyam prior to coming into force of the other Backward Classes and Chhatisgarh Niji Kshetra Vishwvidy- handicapped students; alaya (Sthapana Aur Viniyaman) San- (p) the system proposed to be followed sodhan Adhiniyam, 2004, shall be for selecting students for admission to included as Schedule-I of the Adhini- the courses of study at the university; yam and hereafter notification issued (q) the system proposed to be followed for appointment of teachers and other regarding establishment of a University employees in the university; under the provISions of this Adhiniyam, (r) whetner ,he University is desirous of shall form part of the said Schedule-1 in taking up distance education chronological order. programme. If so, details of study (c) All the provisions of the Adhiniygm centres proposed to be started.
shall apply to . Universities included in (s) whether the university proposes to Schedule-I. undertake some programme related to (2) Every notification issued under Sub- local needs. If so, the nature of section (1) shall be laid on the table of specialized teaching, training or the Legislative Assembly research activities to be undertaken by the university so as to fulfil this objective;
Section 6: Incorporation of the Uniuer- (t) whether the University proposes to sjty; start some programmes for the benefit (1) Every university established under of farmers, women and industries. If so, Sub-section (1) of Section 5 shall be a details thereof may be given.
body corporate by the name notified un (u) details of play grounds and other
facilities available for or proposed to be
der the said section having perpetual created for games and sports and extra
succession and a common seal and curricular activities like national Cadet
may sue and be sued by the said name. Corps, National Service Scheme, Scouts
(2) The University established under and Guides etc;
Sub-section (1) of Section 5 may, with (v) me arrangements proposed to be
the prior approval of the State Govern- made for academic auditing;
ment, affiliate any College or other insti- (w) justification regarding the tution or set up more than one campus. necessity (3) On its notification under Subsection of establishment of the proposed (1) or Section 5, the University shall es- Univesity;
tablish its main campus in the Stale of (x) commitment to follow the norms of Chhalisgarh on the land referred to in the regulating bodies;
Sub-section (1) of Section 4 and for that (z) such other' details as the sponsoring purpose shall create a built up area of body may like is give;
atleast 25,00.0sqft. in the form of build- (z) such 'Other details as may be ings and ancillary structures within a prescribed. period of 2 years from the date of such (3) The Government on receipt of the
notification, in the case of Universities proposal an d the Project Report for which have already notified before this establishment of a university shal Sansodhan Adhiniyam, the period of 2 constitute a Committee consisting of such members as may be specified IJV years, shall be reckoned from the date it, out whom atleast one sha|| be an of coming in force of this Sansodhan expert to examine the proposal and the Adhiniyam. project report.
(4) All disputes arising a result of the Explatiation:- this sub-section, the provisions made in this Adhiniyam shall expression "expert" means an be settled by a Court of law located in academician of prominence in the the State of Chhatisgarh. respective field of higher education.
(4) The Committee shall consider the
Section 24. Selling up of a Regulatory proposal and the project report on the
Commission. following grounds namely -
(1) There shall be a Regulatory Commis- (a) financial soundness and assets of
sion for the purpose of ensuring appro- the sponsoring body and its ability to set
priate standards of teaching, up the infrastructure of - the proposed
examinations, research, protection of university;
the interest of the students and ensuring (b) background of the sponsoring body reasonable service conditions of em- that is to say its expertise and ployees while the University has full experience in the field of education, its freedom to function. general reputation etc. and its (2) The Regulatory Commission shall commitment to follow the norms of the function under the general control of regulating bodies;
the Visitor. (c) potentiality of the courses proposed
(3) The Regulatory Commission shall to be offered that is to say the courses
consist of a Chairman, two full-time and are able to develop the human
not exceeding two part time members resources as per the requirements of
to be appointed by the Visitor. contemporary demands, the courses
have new features and include
(4) The Chairman shall be appointed by emerging branches of learning;
the Visitor from a panel recommended (5) The Committee, while considering
by the State Government consisting of me proposal and the project report,
eminent educationists who have a thor- under Sub-section (4), may call for such
ough knowledge of the working of the other information from the sponsoring
institutions of higher education. body as it thinks proper for the purpose,
(5) The members shall be appointed by (6) The Committee shall submit its
the Visitor from a panel recommended report to the State Government within a
by the State Government consisting, of period of one month from the date of its
persons of repute in the field of educa- constitution;
tion, finance, law, administration/man- Provided that while computing the
agement etc. period of one month, the period
(6) The chairman and the members commencing from the date on which
shall not be connected in any way with requisition for any information under
any of the universities established under Sub-section (5) is issued and ending on the Adhiniyam. the date on which requisite information (7) All orders and decisions of the Regu- is submitted to the committee shall be Irttorv Commission and all instruments excluded.
issued by the Commission shall be Section 5: Issuance of the Letter of intent authenticated by signature of the Chair- and compliance report:
man. (1) After the receipt of the report of the (8) Terms and conditions of services of committee constituted under Section 4, Chairman and the members, proce- if the State Government is satisfied that dure for meetings of the Commission, it is advisable to establish the University recruitment and service conditions of it may issue a letter of intent mains the the staff of the Commission, temporary sponsoring body to- Association of persons with the Com- (i) estahhsh an endowment fund in mission for particular purposes, funds accordance with the provisons of Section 9 of this Act; of the Commission its budget annual (ii) own a minimum of 30 acres of land report, account audit and such other if not already availab|e; matter as may be required for proper (iii) constmct a minimum of 10,000 functioning of the Commission shall be square meters of couered space for provided in the rules made by the State administrative purposes and for Government in this regard. conducting academic programmes, if (9) It shall be the general duty of the not already available, Regulatory Commission:- (iv) purchase books and journals of
(a) to take, in consultation with the Uni- atleast rupees 10 lacs or as per the versities and/or other bodies concerned norms of regulating bodies, whichever with regulatory function of the higher is hi-her, and give undertaking to invest education system in the country such as within first three years not less than the UGC, AICTE and NCTE, MCI Phar- rupees 50 lacs or as per the norms of macy Council, and such agency/agen- regulating bodies, whichever is higher, cies established by the Central on books, journals, computers, library Government for regulation of educa- networking and other facilities so as to lion, all such steps, as it considers nee- make the library facilities adequate for essary for determination and main- contemporary teaching and research;
tenance of standards of teaching, ex- (v) purchase equipments, computers, amination and research in the Universi- furniture, other mobile and immobile ties, assets and infrastructure facilities
(b) to ensure that universities have the (other than buildings referred to in freedom to make rules for admissions, Clause (iii) above) whorth rupes 20 lacs subject to reservation policy of the Gov- of as per the norms of regulating podies, ernment in State of Chhattisgarh with whichever is higher, and give regard to admissions of students be- five years equipments, computers, longing to Scheduled Tribes, Scheduled furniture, other mobile and immobile Castes and other weaker Sections of so- assets and infrastructure facilities ciety, decide course contents, method (other than buildings referred to in of teaching and the evaluation of stu- Clause (iii) above) worth not less than dents and matters connected thereto; rupees- one crore or as per the norms of
(c) To ensure that universities are al- regulating bodies, whichever is higher;
lowed to collect such fees and other (vi) give undertaking to appoint at least charges which over the cost of educa- Professor, 2 Readers and adequate tion imparted by them and also give a number of Lecturers along with, reasonable surplus to enable them to necessary supporting staff in each maintain assets and carry out further department or discipline to be started expansion; by the university;
(d) To ensure that the teaching staff of (vii) give undertaking to take up co-
the University has atleast the minimum curricular activities like seminars, educational qualifications and get due debates, emoluments looking to their qualifica- quiz programmes and extracurricular tions; activities like games, sports, National
(e) to ensure that the staff of the univer Service Scheme, National Cadet Corps sity is appointed by written contrac etc for the benefit of students as per the which shall be kept with the university norms laid down by the regulating and a copy of which shall be furnished bodies;
to the employee concerned; (viii) give undertaking for establishment (f) to ensure that students enrolled in of Provident fund and to take up welfare the University are not cheated or ex- programmes for the employees of the ploited and unscrupulous means are university; and not adopted to collect fees from them; (ix) fulfil such other conditions and
(g) To take action pertaining to the liq- Provide such other information as may uidationofa university. This will include be prescribed by the University Grants Commission. All India Council for completion of courses conduct of ex- Tecnnical Education or any other animations, award of degrees, etc. statutory body established by the law of either by undertaking job itself or by the Union of State Government assigning the job to some other univer- (2) The sponsoring body shall fulfil the sity in such a manner that the interest of requirements and conditions specified the students are not adversely affected in Sub-section (1) and shall report the in any way. Expenditure made for these compliance to the State Government arrangements for the students along- within a maximum period of one year with the process of liquidation of the from the date of issue of the letter of university shall be made good from the intent. On receiving the compliance money deposited in the Endowment report, the State Government shall Fund and/or General Fund; appoint a committee consisting of such
(h) To regulate in consultation with the members, including the representatives concerned University, the study centres of the regulating bodies, as may be already established in different places specified, to verify the compliance in India and other countries on the date report. The committee shall submit its of come into force of the Sansodhan report to 'he State Government within Adhiniyam and to permit opening of off- one month from the date of its campus centres, off-shore campus and constitution specifying whether the studh centres in consultation with the sponsoring, body has fulfilled the concerned University; requirements and conditions laid down in Sub-section (1).
(10) The State Government may issue (3) If the sponsoring body has failed to
directions on matters of policy to the comply with the provisions of Sub-
Regulatory Commission. Section (2), its Proposal submitted under
Section 4 shall stand rejected and the
(11) Notwithstanding the provisions of letter of intent issued under Sub-Section
this Adhiniyam, Department shall func- (1) shall be deemed to have been
the Education Department shall func- withdrawn
tion as the Regulatory Commission till Section 6 Establishment of the
the Commission is constituted as per university:-
provision of this Adhiniyam or in case it (1) The State Government, if it is
has become non- functional, for what- satisfied after considering the report
soever reasons. submitted under Sub-Section (2) of
Section 5 of Sub-section (1) of Section 5
may, by notification in the official
gazette, establish a university with such
name, location, jurisdiction and with
such conditions as may be specified in
such notification and insert necessary
entries in the Schedule:
Provided that, no such notification shall
be issued except on a resolution passed
by the House of the State Legislature.
(2) The university shall be deemed to
have come into existence from the date
of the notification in the Official Gazette
under Sub-section (1).
Section 7 Incorporation of the university:
Every university established under Sub-
section (1) of Section 6 shall be a body
corporate by the name notified under
that section. having perpetual
succession and common seal and may
sue and be sued by the said name.
Section 8 University to be self-financed:
The University shall be self-financed
and shall not be entitled to receive any
grant or other financial assistance
from the State Government.
Section 9 Endowment Fund:-(1) The
sponsoring body shall establish an
Endowment Fund for the university with
an amount of-
(i) in case the university its situated-
(a) fifteen Kilometers away from the
municipal limits of the Divisional
Headquarters Cities, or
(b) ten Kilometers away from the
municipal limits of other cities,one
crore rupees,
(ii) in case the university is situated in
scheduled tribal area and maintains the
distance specified in Clause (i) from the
municipal limits of a city, seventy five
lacs rupees,
(iii) in other cases, two crore rupees.
(2) The Endowment Fund shall be used
as security deposit to ensure that the
university complies with the provisions
of this Act and functions as per
provisions of this Act, Statutes and
Ordinances. The State Government
shall have to powers to forfeit in the
prescribed manner, a part or whole of
the Endowment Fund in case the
university or the sponsoring body
contravenes the provisions of this Act or
Statues, Ordinances. Regulations or
Rules made thereunder.
(3) Income from Endowment Fund may
be utilised for development of infra
structure of the university but shall not
be utilized to meet out the recurring
expenditure of the university;
(4) The amount of Endowment Fund
shall be invested and kept invested until
the dissolution of the university in long
terms securities issued or guaranteed
by the State Government or deposited
and kept deposited until the dissolution
of the University in the interest bearing
Personal Deposit Account in
Government Treasury.
(5) In case of investment in long term
security, the certificates of the
securities shall be kept in safe custody
of the State Government and in case of
deposit in the interest bearing Personal
Deposit Account in Government
Treasury, deposit shall be made with
the condition that the amount shall not
be withdrawn without the permission of
the State Government.
14. Before we proceed to deal with two enactments referred to above, it would be convenient to extract the observations of the Supreme Court in Yashpal's case pointing-out the deficiencies in the Chhatisgarh Act, which led to declaring the said Act ultra vines of the Constitution:
44. As shown earlier, a university is a whole body of teachers and scholars engaged at a particular place in giving and receiving instruction in higher branches of learning; and as such persons associated together as a society or corporate body, with definite organization and acknowledged powers and privileges and forming an institution for promotion of education in higher or more important branches of learning and also the colleges, building and other property belonging to such body. Other necessary attributes of a university are plurality of teachers teaching more than one higher faculties and other facilities for imparting instruction and research, provision for residence and must have certain standard of instruction providing for graduate and postgraduate levels of study. It presupposes existence of a campus, classrooms, lecture theatres, laboratories, offices, besides some playgrounds and also sports facility for overall development of personality of the students. However, under the provisions of the impugned Act, a proposal which is on paper and merely gives some kind of a plan or scheme to be done in future is notified as a university. When the Constitution has conferred power on the State to legislate on incorporation of university, any Act providing for establishment of the university must make such provisions that only an institution in the sense of university as it is generally understood with all the infrastructural facilities, where teaching and research on a wide range of subjects and of a particular level are actually done, acquires the status of a university. The impugned Act does not at all establish a university, yet by issuing a notification conferring the legal status of a university to a project report (which is on paper only) bestows upon it a right to confer a degree, which right it gets by virtue of Section 22 of the UGC Act. The manner in which a university is notified by issuance of a gazette notification under Section 5 and conferment of a juristic personality under Section 6 of the Act is clearly contrary to the constitutional scheme and is not contemplated by Article 246 of the Constitution.
45. The State Legislature can make an enactment providing for incorporation of universities under Entry 32 of List II and also generally for universities under Entry 25 of List 111. The subject "university" as a legislative head must be interpreted in the same manner as it is generally or commonly understood, namely with proper facilities for teaching of higher level and continuing research activity. An enactment which simply clothes a proposal submitted by a sponsoring body or the sponsoring body itself with the juristic personality of a university so as to take advantage of Section 22 of the UGC Act and thereby acquires the right of conferring or granting academic degrees but without having any infrastructure or teaching facility for higher studies or facility for research is not contemplated by either of these entries. Sections 5 and 6 of the impugned enactment are, therefore, wholly ultra vires, being a fraud on the Constitution.
57. In view of Regulation 3.1, a private university can only be established either by a separate Act or by one compendious Act where the legislature specifically provides for establishment of the said university. Though an attempt has, been made in Section 5(1)(b) of the amended Act in this regard but the same does not conform to tree Regulations inasmuch as the initial notification notifying in the Official Gazette that the university is established, is done by an executive order and not by any Act of legislature.
59. ... We are of the opinion that having regard to the constitutional scheme and in order to ensure that the enactment made by Parliament, namely, the University Grants Commission Act is able to achieve the objective for which it has been made and UGC is able to perform its duties and responsibilities, and further that the State enactment does not come in conflict with the Central legislation and create any hindrance or obstacle in the working of the latter, it is necessary to read the expression "established or incorporated" as "established and incorporated" insofar as the private universities are concerned.
15. Thus, dealing with the deficiencies or objection pointed- out at the first instance, the Preamble of the Chhatisgarh Act reads as "establishment of self financed Private Universities" whereas the Rajasthan Act of 2005 reads "establishment and incorporation of private universities". Thus, the objection as pointed out in the Chhatisgarh Act ensuring that the State enactment does not come in conflict with the Central legislation, has been taken care of.
16. The second objection pertains to procedure whereby a University is established simply on the basis of Paper Report. The Chhatisgarh Act provided the procedure under Sections 4 and 5 read with Section 24 of the amending Chhatisgarh Act. It provides for setting up of a "Regulatory Commission" as defined in Section 2(i) for the purpose of ensuring appropriate standards of teaching, examinations, research, protection of the interest of the students and ensuring reasonable service conditions of employees. The Regulatory Commission is to be established by the Visitor (The Governor). The procedure for establishing a University under the Chhatisgarh Act can, for convenience, be divided in four stages.
Processing of Applicaton for Establishing A University:
17. To start with, at the first stage, Sponsoring Body desirous of establishing a private University is required to submit an application containing the Project Report to establish a University to the Regulatory Commission alongwith fee and such form as may be prescribed, atleast one year before the dale from which it intends to start the University as provided under Clause (1) of Sub-section (1) of Section 4 of the Act. The Sponsoring Body is also required to submit alongwith the application, the proof of having established an Endowment Fund of Rs.2 crore and the proof of being in possession of 15 acres of land in case the main campus is proposed to be established within the Municipal Corporation Limits of Raipur; or 25 acres of land in case the main campus is proposed to be established elsewhere in the State and in. addition, if the land has been obtained on lease, the period of lease should be atleast 30 years. Sub-section (2) of Section 4 provides for submission of Project Report containing the particulars enumerated under Clauses (a) to (m) thereof.
18. Comparing the first stage with the Rajasthan Act of 2005, under Subsection (1) of Section 4 of the Rajasthan Act, the Sponsoring Body intending to establish a University in private sector, is required to submit an application containing the proposal and the project report to the State Government alongwith such fee as may be prescribed. Sub-section (2) of Section 4 enumerates the particulars under Clauses (a) to (z), which a project report is required to contain.
19. At the second stage, under Sub-section (3) of Section 4 of the Chhatisgarh Act, the Regulatory Commission is required to hold an enquiry as to the proof of creation of Endowment Fund and of possession of land to be used exclusively for running the University or in lieu thereof proof of deposit of additional fund as per the. provisions of Sub-section (1). Such an enquiry is to be made within 45 days from the date of application.
20. In the Rajasthan Act of 2005, on receipt of application alongwith the project report as provided under Sub-section (3) of Section 4, the Government is required to constitute a committee consisting of such members as may be specified by it out of whom at least one shall be an expert to examine the proposal and the project report. Sub-section (4) of Section 4 provides that the Committee s consider the proposal and the project report on the grounds namely; financial soundness and assets of the sponsoring body and its ability to set the infrastructure of the proposed university; background of the sponsoring body that is to say its expertise and experience in the field of education, its general reputation etc. and its commitment to follow the norms of the regulating bodies and further the potentiality of the courses proposed to be offered that is to say the courses are able to develop the human resources as per the requirements of contemporary demands, the courses have new features and include emerging branches of learning. Subsection (5) of Section 4 authorizes such committee to call for such other information from the sponsoring body as it thinks proper.
21. At the third stage, under the Chhatisgarh Act, under Sub- section (4) of Section 4, if the Regulatory Commission is satisfied with the proposal to establish the University, it may advise the State Government to issue a notification.
22. In the Rajasthan Act of 2005 under Section 5, after the receipt of the report of the Committee constituted under Section 4, if the State Government is satisfied that it is advisable to establish the University, it may, issue a "letter of intent" and ask the sponsoring body to:
(i) establish an endowment fund in accordance with the provisions of Section 9 of this Act;
(ii) own a minimum of 30 acres of land, if not already available;
(iii) construct a minimum of 10,000 square meters of covered space for administrative purposes and for conducting academic programmes, if not already available;
(iv) purchase books and journals of atleast rupees 10 lacs or as per the norms of regulating bodies, whichever is higher, and give undertaking to invest within first three years not less than rupees 50 lacs or as per the norms of regulating bodies, whichever is higher, on books, journals, computers, library networking and other facilities so as to make the library facilities adequate for contemporary teaching and research;
(v) purchase equipments, computers, furniture, other mobile and immobile assets and infrastructure facilities (other than buildings, referred to in Clause (iii) above) worth rupees 20 lacs or as per the norms of regulating bodies, whichever is higher, and give undertaking to procure within the first five years equipments, computers, furniture, other mobile and immobile assets and infrastructure facilities (other than buildings, referred to in Clause (iii) above) worth not less than rupees one crore or as per the norms of regulating bodies, whichever is higher;
(vi) give undertaking to appoint at least 1 Professor, 2 Readers and adequate number of Lecturers along with necessary supporting staff in each department or discipline to be started by the university; (vii) give undertaking to take up co-curricular activities like seminars, debates, quiz programmes and extracurricular activities like games, sports, National Service Scheme, National Cadet Corps etc. for the benefit of students as per the norms laid down by the regulating bodies;
(viii) give undertaking for establishment of provident fund and to take up welfare programmes for the employees of the university; and
(ix) fulfil such other conditions and provide such other information as may be prescribed by the University Grants Commission. All India Council for Technical Education or any other statutory body established by the law of the Union or State Government.
23. Thus, at the third stage, there is significant change, while under the Chhatisgarh Act, a "Regulatory Commission" on being satisfied with the project report and ancillary requirement in other words a paper report, may advise the State Government to issue notification for establishment of a University, in the Rajasthan Act of 2005, on recommendation of Committee, the State Government may issue only a "letter of intent.
24. At the fourth stage in the Chhatisgarh Act as provided under Section. 5(1)(a), the State Government on receipt of the advice of the Regulatory Commission under Sub-section (4) of Section 4 of the Act, may declare by notification in official gazette that the University is established by such name and with such jurisdiction and location of main campus from such date as may be mentioned in the notification.
25. Thus, in the Chhatisgarh Act, process is complete at the fourth stage but under the Rajasthan Act of 2005, it proceeds to fourth, fifth, sixth and completes at seventh stage. At fourth stage, in the Rajasthan Act of 2005, as provided under Sub-section (2) of Section 5, the sponsoring body is required to submit a compliance report to the State Government within a maximum period of one year from the date of issue of letter of intent as to fulfillment of requirements and conditions specified in Sub-section (1). On receiving the compliance report, the State Government is required to appoint a second committee consisting of such members including the representative of the regulating bodies, as may be specified to verify the compliance report. Thus, at the fourth stage, while in the Chhatisgarh Act, on the basis of Paper Report, notification establishing a University is issued, in the Rajasthan Act of 2005 before contemplation of establishing a University, the sponsoring body is asked to demonstrate physically that it is equipped to establish a University.
26. At the fifth stage, the State Government is required to consider the report submitted by the "Second Committee" and to satisfy as to whether the sponsoring body has fulfilled the requirements and conditions laid down. It also provides with consequential provision under Sub-section (3), to the effect that if the sponsoring body has failed to comply with the provisions of Sub-section (2), its proposal submitted under Section 4 shall stand rejected and the letter of intent issued under Sub-section (1) shall be deemed to have been withdrawn.
27. At the sixth stage is provided under Section 6, the State Government on being satisfied on consideration of the report submitted under Sub-section (2) of Section 5 that the sponsoring body has complied with the provisions of Sub-section (1) of Section 5, shall move a resolution before the House of State Legislature to establish a University with such name, location, jurisdiction and with such conditions as may be specified in the notification. Thus, while under the Chhatisgarh Act, it is established by an executive Act, under the Rajasthan Act of 2005, it is by resolution of the Legislature.
28. At the seventh stage, on the resolution being adopted by the House of State Legislature, the State Govt. shall issue a notification to that effect. As provided under Section 7, every University established under Sub-section (1) of Section 6 shall be a body corporate by the name notified under that section having perpetual succession and common seal and may sue and be sued by the said name. As provided under Section 8, such a University shall be self-financed and shall not be entitled to receive any grant or' other financial assistance from the State Government.
29. Thus, it is evident that while under the Chhatisgarh Act, the Regulatory Commission on being satisfied of the project report, may advise the State Government to establish the University and on such recommendation, the State Government may issue a notification establishing a University. The Act does not provide for actual coming into existence of the essential attributes of the University i.e. existence of Campus, Classrooms, Lecture theatre, Libraries, Laboratories, office etc. Thus, the University is established simply on the basis of. a proposal, which is on a Paper Recoil and merely give some kind of plan or scheme to be done in future notifying as a University. However, in the Rajasthan Act, on receipt of the project report, an enquiry is conducted by the Committee constituted by the State Government. On receipt of the report of the Committee, if the State Government is prima facie satisfied, it considers to establish a University instead of straightway issuing a notification establishing a University as provided under the Chhatisgarh Act, it may issue only a "letter of intent" asking the sponsoring University to construct a minimum of 10,000 square meters of covered space for academic and administrative purposes, if not already available, raise a library having books and journals worth Rs. Ten lacs and further to give an undertaking to invest within first three years not less than Rs. 50 lacs and further to purchase equipments, computers, furnitures etc, worth Rs. 20 lacs and also give an undertaking to appoint atleast 1 Professor, 2 Readers and adequate number of lecturers alongwith necessary supporting staff in each department or discipline to be started by the University. A further undertaking is required to be given to take up co-curricular activities like seminars, debates etc. and for establishing the provident fund. All these conditions are required to be completed within the stipulated period of one year. On receiving the compliance report, a second Committee is appointed to verify that the sponsoring body has fulfilled the conditions as provided under Sub-section (1) of Section 5. Thus, under the Rajasthan Act, a notification is not issued simply on the basis of proposal on paper. After the first report, a "letter of intent" is issued and time is given to the sponsoring body to bring into existence the Campus, classrooms, library, office etc. Thus, the second objection as pointed out in the Professor Yashpal's case (supra) dealing with the Chhatisgarh Act does not exist in the Rajasthan Act.
30. Reverting to the objections i.e. third objection, the Apex Court held that a University can not be established by an executive order. In the Rajasthan Act as provided under Sub-section (1) of Section 6, a notification establishing a private university cannot be issued except on resolution passed by the House of State Legislature. Thus, under the Rajasthan Act of 2005, a University is established by a resolution of the Legislature and not by simple Executive Notification.
31. Regarding the last objection as to fulfilling the conditions provided by UGC and professional bodies, its compliance has been ensured under one of the conditions laid down in Sub-section (1) of Section 5 viz., Clause (ix) extracted below, at the time of issuing the "letter of intent" which reads as follows:
(ix) fulfil such other conditions and provide such other information as may be prescribed by the University Grants Commission. All India Council for Technical Education or any other statutory body established by the law of the Union or State Government.
32. Therefore, when a compliance report is submitted, the second Committee will ensure that sponsoring body has complied with the requirements of the UGC and the relevant professional body.
33. Thus, on compliance of conditions of issuing a letter of intent, it will be obligatory on the sponsoring body to comply with the provisions of the UGC and other statutory professional bodies and, therefore, it cannot be said that impugned Act in any way, has stultified the UGC Act or the other enactments made by the Parliament. Hence, a comparison of the two Acts clearly show that the objections pointed-out in the Chhatisgarh Act do not exist in the Rajasthan Act of 2005.
34. In Professor Yashpal's case (supra), dealing with the Chhatisgarh Act, the misuse of provisions was much apparent from the averments made in the petition to the effect that during the short span of one years, as many as 112 universities were established and many of them had absolutely no building or campus and were running from one room tenements. In the instant case, one of the sponsoring body, who is intervener in the petition, has given some details about the institution. The applicant viz; Ritnand Balved Education Foundation is the Society registered under the Societies Registration Act. The said Society is running several institutions of education/higher education throughout the Country. It is averred that the said applicant under the individual Act of State Legislature of U.P. Known as "Amity University Act, Uttar-Pradesh" established the University with its main campus at Gautam Budh Nagar and another campus at Lucknow. Both the campuses have more than 80 institutions imparting education in the several disciplines including Management, Engineering, Law, Communications, Biotechnology, Nanotechnology, Insurance, Education, Behavioral Science etc. to more than 20,000 students. The said sponsoring body submitted an application to the State Government in June, 2005 containing the proposal and the project report to establish the university in the State of Rajasthan. The State Government under Section 4(3) has constituted a committee comprising of Vice Chancellor, MDS University, Ajmer, Commissioner/Director College Education, Rajasthan and Expert members as Director, Plodder Institute of Management. University of Rajasthan and the Principal, Engineering college, Bikaner. It is averred that the applicant has 152 acres of land on Delhi-Jaipur Highway under its ownership, out of which 50 acres is earmarked for. the proposed University. Academic Block of 1,10,000 square feet is already constructed, besides 70,000 square feet for separate boys and girls hostels. The applicant has already invested an amount of Rs.45 crore in the said project. Learned Advocate General has also given reference to some other institutions, which we need hot refer at this stage. Thus, on careful consideration of the provisions of the two Acts, we are of the view that the Rajasthan Act 2005 does not suffer from the drawbacks as pointed-out in the. Chhatisgarh Act. Under the Rajasthan Act 2005, a University can not be established simply on the basis of Paper Project Report but it provides effective mechanism to ensure that before notification establishing a University is issued, the substantial required infrastructure comes into existence physically. Thus, the principal contention of the Learned Counsel to the effect that Rajasthan Act 2005 is substantially similar to the Chhatisgarh Act, which has been struck down by the Supreme Court in Professor Yashpal's case, is rejected being without substance.
Competence of Rajasthan Legislative Assembly to Enact the Act Of 2005:
35. Dealing with the contention as to the competence of State Legislature, it is no more reintegrate that the State Legislature is empowered to legislate and make an enactment for incorporation and establishment of the University in view of Entry 32 List II read with Entry 25 List III. However, it cannot be lost sight that Entry 66 of List I deals with the institution for higher education. The coordination and determination of standards as stipulated by Entry 66 comes into operation since the University is established. Thus, for proper determination of standards in the institution for higher education or research in the Scientific and Technical Institutions, the Parliament has constituted a commission under the name of LJGC. The Commission determines and allocates funds to the University made available by the Central Government. The Commission is to act as an expert body to advise the Central Government or problems connected with the coordination or facilities and maintenance of standards in the universities. The Commission has power to recommend to any university the measures necessary for reforms and improvement in the university education and also advise the University concerned upon the action to be taken for the purpose of implementing such recommendation. In view of Section 22, only such University can confer or grant degree as established and incorporated under the Central or the State Act of the University. Similarly, there are professional bodies established under the Act of Parliament. Such bodies are responsible for maintaining the professional standards and, as such, no course can be allowed to run unless the same has been recognized by such institutions.
36. It may be stated that the UGC having noticed that setting up private universities through State Acts is a recent phenomenon, evolved an effective regulatory mechanism for the maintenance of standards of teaching, research, examination and extension services in the private universities. The UGC has framed the regulations in the name of UGC (Establishment of and Maintenance of Standards in Private Universities) Regulations, 2003. In para 2.1 of the Regulations, "private university" has been defined. Under para 3.1, a duty is cast on the private university to conform to the relevant Provisions of the UGC Act, 1956 as amended from time to time. Para 3.4 casts a duty on a private university to fulfil the minimum criteria in terms of programmes, faculty, infrastructural facilities, financial viability etc. as laid down, from time to time by the UGC and other concerned statutory bodies such as the All India Council for Technical Education (AICTE), the Bar Council of India (BCI), the Distance Education Council (DEC), the Dental Council of India (DCI), the Indian Nursing Council (INC), the Medical Council of India (MCI), the National Council for Teacher Education (NCTE), the Pharmacy Council of India (PCI) etc. Para 3.5 casts a duty on such universities to provide the course of studies prescribed for a first degree and/or the post-graduate degree/diploma programmes, formally approved by the respective academic bodies of the private university, such as Board of Studies, Academic Council and Governing/Executive Council. Under the Regulation 4, bite UGC may cause periodic inspection of the private university and its off-campus centre, study centre, off-shore campus etc. offering its programmes. The UGC has also reserved its right to call for all relevant information from the concerned private university, as provided in the UGC (Returns of Information by Universities) Rules, 1979 as amended from time to time. Para 5.1 provides the consequences of violations. It provides that if the Commission is satisfied that the private university, even after getting an opportunity to rectify the deficiency and nonconformity pointed out, has failed to comply-with, the Commission may pass an order prohibiting the private university from offering any course for the award of first degree and/or the post-graduate degree/diploma, as the case may be, till the deficiency is rectified. Para 5.2 speaks of penalty under Section 24 of the UGC Act against private university awarding a degree or diploma, not specified by the UGC. Keeping this in view, we may consider the: question of competence of the Rajasthan Legislative Assembly to enact the Act of 2005.
37. The Rajasthan Legislative Assembly has enacted the Rajasthan Act of 2005 within its domain to make an enactment regarding incorporation of University as provided under Entry 32 List-II read with Entry 25 List-III, which provides for Education, including technical education subject to the provisions of Entries 63, 64, 65 and 66 of List-I. The impugned Act provides for effective-mechanism ensuring coordination and determination of standards in Institution for higher education or research and scientific education. It has been made obligatory for the private university established under the Rajasthan Act of 2005 to faithfully carry out the standards prescribed by U.G.C. and professional bodies ie. Regulatory bodies for teaching, quality of education being imparted, curriculum, standard of examination and evaluation. Thus, there is no conflict with the Entry 66 of the Union List. It is well settled that principle of federal supremacy laid down in Article 246(1) of the Constitution can not be resorted to unless there is an "irreconcilable" conflict between entries in the Union List and the State List. Reference be made to Hotel Pharmaceuticals Ltd v. State of Bihar AIR 1983 SC 1019 and India Cement v. State of Tamil Nadu AIR 1990 SC 85. Accordingly, the contention raised as to competence of Rajasthan Legislative Assembly to enact the impugned Act stands rejected.
Globalization of Higher Education Challenges and Strategies:
38. Mr. M. Mridul, Senior Advocate, appearing for the petitioners, has made good deal of argument, stretching the observations of the Apex Court in Professor Yashpal's case (supra) to the effect that in a case of private university, it is necessary that it should be a pre-established institution for higher education with all infrastructural facilities and qualities, which may justify its claim for being conferred the status of university. It is submitted that at the first instance, an institution should be allowed to grow as a college and if it proves its worth, it may, in due course of time, be conferred the status of deemed university and ultimately, a university. Learned Counsel has referred to the instance of the prestigious institutions like Rajasthan Vidhyapeeth and Vanasthali Vidhyapeeth.
39. Having carefully gone through the judgment of the Apex Court in Yashpal's case (supra), in our humble understanding, the Apex Court has not said to the extent it has been, stretched by the Learned Counsel. It is well known that a judgment is not to be read, as a statute. The Apex Court in P.S. Sathappan v. Andhra Bank Ltd. 2004 (11) SCC 672, held:
148.(8) The judgment of this Court must be read as a whole and the ratio therefrom is require to be culled out from reading the same in its entirety and not only a part of it.
40. The proposition has been reiterated by the Apex Court recently in State of Karnataka v. C. Lalitha 2006 (2) SCC 747. In fact, there is no law which prohibits establishment of a university without the same being grown as the college or any other institution. The Apex Court in Gajraj Singh v. State of U.P. 2001 (5) SCC 762, observed that a doubt arising from reading a judgment of the Court can be resolved by assuring that the judgment was delivered consistently with the provisions of law and, therefore, a course or procedure in departure from or not in conformity with the statutory provisions, cannot be said to have been intended or laid down by the Court unless it has been so stated specifically.
41. Taking the holistic view of the matter, if a sponsoring body realizing the growing need of the Society, considers to design the new course and launches the same, it will not be possible if they are asked to first grow as a College i.e. to first get affiliated with conventional University. The affiliating college will have no, independence to evolve or to design specialized courses as per the growing need of the society and launch them. This will frustrate the entire purpose for which the private universities are required to be established. It is high time that we take stock of the skewed realities with reference to globalization and our present system of education. There are problems of massification, scarcity of resources with the existing system. It is labelled as a beleaguered system. There is need to design different new specialized courses as per the growing need of the Society. This is not possible without developing a cadre of class entrepreneurs, who can design new courses and launch them effectively. The entry of Corporate World must be looked in right perspective. The Government of India has been supporting the education of international students through conventional universities. More than 95% of the foreign students come from developing countries of Asia and Africa like Kenya, Malaysia, Sudan, Nepal, Jordan, Ethiopia, Iran, Sri Lanka, Mauritius, Tanzania, Thailand and Yemen. It is reported that there is steady decline in the inflow of foreign students in India since 1993. Even students from Africa, Middle East, South Africa and other developing nations have been shifting away from India. In the field of economic development, India today is very near to developed nations. Many other developing countries are far behind us and still staggering for economic development. They naturally look to India for assistance and advice. Many foreign students, therefore, come to India for higher education incurring all the cost and inconvenience. The Indian scenario from the point of view of Higher Education, the U.S.A., U.K., Australia and Canada are the main providers of higher education to Indians. India is fourth largest market for the U.S.A.'s foreign education. Out of 5,14,000 foreign students currently studying in the United States, 42000 students are from India.
42. There are numerous problems confronting the Indian Higher Education System. It comprises of some 300 universities and deemed universities, more than 10,000 colleges and some 6.5 million students. The s n is further complicated by rigidity of India's higher education bureaucracy, the political pressure on higher education from regional, religious and caste based groups and growing problem of corruption in various aspects of life ie. admission, examination, recruitment etc. Thus, the Indian Universities are far too behind from their counterparts in developing countries. They still operate as if they are factories to turn out stereotyped degrees, which are hardly tested for their practical worth and social relevance, whereas good universities in the countries like U.S.A., German and U.K. are primarily research oriented, higher education is just a by-product. III U.S.A., out of 2364 Universities, 1752 are private. In Japan, out of 684 Universities. 512 are private. In U.K., there are 104 universities and 231 are autonomous institutions.
43. The eleven judge bench of the Apex Court in T.M.A. Pai Foundation's case (supra) has emphasized on the autonomy in the education through private unaided educational institutions. The Court observed that the private education is one of the most dynamic and fastest growing segments of post-secondary education at the turn of 21st Century. It will be relevant to extract para 49 of the judgment as follows:
49. Not only has demand overwhelmed the ability of the Governments to provide education, there has also been a significant change in the way that hi-her education is perceived. The idea of an academic degree as a "private good" that benefits the individual rather than a "public good" for society is now widely accepted. The logic of-today's economics and an ideology of privatization have contributed to the resurgence of private higher education and the establishing of private institutions where none or very few existed before.
44. The residential Universities like I.I.Ts., I.I.Ms, and autonomous colleges are suitable for exporting higher education but such institutions are limited in our Country. There are real opportunities for India to benefit significantly from the global revolution in higher education. To do so will require major policy reforms in the way Indian universities are structured, funded and regulated. It will require closer links between Indian industry, especially the growing technology based sector and Indian Universities. It will require a new globally oriented, entrepreneurial style of leadership by Indian Vice Chancellors and other top. level administrators. Thus, there is not only an emphasis on a Statute for establishing a private University but also to extend all sort of help to set up residential nonaffiliated private universities and autonomous bodies. There is the need for reliable and globally acceptable accreditation System so that the Indian degrees are recognized worldwide. Academic reforms like introduction of relevant, flexible, modular and modernized courses according to the needs, introduction of accredited system, use of inter-net and modern teaching as an overhauling examination system, continuous assessment is the need of the hour.
Role of U.G.C. and Regulatory Bodies - Coordination and Determination of Standards:
45. However, we maintain that the guarantee of the high educational standards cannot be provided without the presence of Regulatory Bodies, The label "UGC/AICTE Approved" should become a brand name signifying high educational quality and providing international viability to such projects undertaken by even the private universities. The UGC and AICTE should provide international benchmarking for member institutions relating to the quality, funding levels, fee structures, research outcomes, student support services, infrastructure provision, management efficacy, accreditation and other important matters. These bodies should also become a platform for providing means for development of joint programmes for education among universities within the country and abroad. They should conduct surveys and provide a suitable system to bridge the gap between the manpower creation and employment generation in the host countries.
Criticism as to other Provisions of Rajasthan Act of 2005:
46. It is next contended that at all stages envisaged by the impugned Act except for a few exceptions, the University is more or less an administrative endeavour of the sponsoring body and will be in the hands of a society registered under the Societies Registration Act, a Trust or a Company which may have nothing by way of expertise in education. Referring the provisions of Sub- section (u) of Section 2, it is submitted that selection of the Chancellor is completely in the hands of the sponsoring body. The Vice Chancellor is to be appointed as provided under section 15 of the Act by the Chancellor from among the three persons recommended by the Governing Body. The Governing Body which is not defined in Section 2 of the Act but is referred-to in Section 20 of the act, is nothing but a creature of the sponsoring body. Again, the Registrar is to be appointed by the Chairperson of the Sponsoring Body. Section 19 pertains to the authorities of the University i.e. the Governing Body; the Board of Management and the Academic Council. All the bodies are represented by the persons appointed by the Sponsoring Body. The Sponsoring Body, broadly speaking, is more or less a commercial body having no knowledge or experience in the field of education. Thus, the top officials of the University i.e. Chancellor, Vice Chancellor and the Registrar will be just portage of the Sponsoring Body.
47. Having gone through all the relevant provisions, we are of the view that the contention raised is of no substance. The role of the Sponsoring Body literally comes to an end, the moment the concerned institution is accorded the status of a University. On establishing the university, it is governed by the provisions of the Act. The authority of the Sponsoring Body to appoint Chancellor is always subject to large wisdom of the Visitor, who is none else but the Head of the State. There are sufficient safeguards provided in the matter of appointment of the Chancellor of the University. Similarly, the Vice Chancellor is to be appointed by the Chancellor from the panel of three persons recommended by the General Council. The General Council consists of eminent educationists, nominated by the Sponsoring Body, one expert of Management or Information Technology from outside the University nominated by the Chancellor and one expert of Finance nominated by the Chancellor. Similarly, only the person having good administrative experience is to be appointed as Registrar by the Sponsoring Body. Even otherwise, we have no reason to believe that the Sponsoring Body will act against objects of the University for which it has been established. In fact, the Sponsoring Body has definitely a major role to play in running a private university. To cater the present needs of the globalization and trend in the education, new institutions of higher education should come up which are being established by the Corporate Organizations and entrepreneurs. Naturally, their experience and wisdom will be useful in establishing and running a University. In fact, there has been a suggestion that much enlightened business houses should be involved in the trade of education by giving suitable incentives in setting up an export oriented international standard of higher education institution. We are not expressing any opinion on the issue. Suffice it to say that that the attributes made by the petitioners against the Sponsoring Body are without any foundation, it is further submitted that Section 5(i)(ii) of the Act of 2005 provides that the Sponsoring Body should own a minimum of 30 acres of land. Referring to Section 43 of the Act of 2005, it is submitted that on establishment of the University, All the assets and liabilities of the University shall vest in the Sponsoring Body. It is submitted that the possibility cannot be ruled out that the Sponsoring Body may dissolve the University after giving a notice of one year to the State. Petitioners have referred to the provisions of the Rajasthan U.I.T. (Disposal of Urban Land) Rules, 1974. Rule 18 provides for allotment of land to public and charitable institutions and also provides that lands for schools and other public and charitable institutions may be allotted on payment of 50% of the sanctioned reserve price. Similarly Rule 18 of the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 provides for allotment of land to public and charitable institutions and provides that lands for schools and other public and charitable institutions may be allotted on payment of 50% of the sanctioned reserve price, except for categories covered under Rule 17 of the Rules. It is submitted that in view of the matter, the Sponsoring Body will find it very easy to have the lands allotted to them at-a throw away price and if the University ultimately, fails, all the assets including land will vest in the Sponsoring Body. The result will be that the Sponsoring Body will have title over the land. This way, the Sponsoring Body will grab the entire land at the sanctioned reserve price. The contention raised is hypothetical. The University shall be established only after a great scrutiny and there is no reason to apprehend misuse of the provisions by way of dissolution of the University.
Safeguards:
48. Certain provisions of the Act of 2005 have been brought to our notice which provides sufficient safeguards to prevent abuse of the Act. According to Section 8, of the Act of 2005, the University shall be self-financed body, still the University is bound under Section 34 of the Act of 2005 to get the fee structure approved by the Committee constituted by the State Government for the purpose. Not only this, the University is obliged to give concessions or rebates in fee or free ship and scholarship to the students economically poor and socially backward family including SC/ST and other backward classes and handicapped. As provided under Section 33, the admissions are to be made strictly on the basis of merit. Not only this, the reservation policy of the State Government, so far as the admission is concerned, is to be followed. As per Section 13, His Excellency the Governor of State of Rajasthan is the Visitor. He has been vested with the wide power to call for any paper or information relating to affairs of the University and also power to issue directions, as he may deem fit in the interest of the University. In case, the Visitor is satisfied that any order, proceeding or decision taken by the authority of the University is not in conformity, with the provisions of the Act or Statutes, Ordinances, Regulations and Rules, he may issue necessary directions, which are to be complied with by the University. Sections 28, 29, 30 and 31 specifically provide that the First Statutes, the Subsequent Statutes, the First Ordinances and the Subsequent Ordinances, before coming into force, shall be approved by the State, Government.
Conclusion:
49. Thus, on overall reading of relevant provisions, we are of the view that there is nothing on the basis of which it can be said that the establishment of the Universities may be abused for the interest of the Sponsoring body. Thus, the apprehension of the petitioners is baseless. On consideration of the entire matter, the petitioners have miserably failed to make out any ground for declaring the impugned Act as ultra vires of the Constitution.
Clarification:
50. The State authorities involved in processing the application to establish Private University under the Rajasthan Act of 2005, should proceed cautiously keeping in mind that permission is granted only in rare and exceptional cases and not in a routine manner. The Act will be utilized only to introduce modular and modernized Courses as per the need, equipped with modern teaching and Examination System and not for conventional Universities. Parties interested in establishing Self-financed Institutions on conventional line, should only be allowed to grow as Colleges. The notification establishing a University including a complaint of not proceeding as per the phased programme, shall be subject to judicial review by this Court under Article 226 of the Constitution of India as per the established parameters in the event of challenge. We also make it clear that in the event, the impugned Act is misused and proceeds the Chhatisgarh way, challenge to the impugned Act will be available on the said ground in accordance with law.
51. Consequently, the writ petition being devoid of merit stands dismissed. Cost easy.