Madras High Court
The Government Of India vs Srm University on 24 January, 2012
Author: T.S.Sivagnanam
Bench: M.Y.Eqbal, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.01.2012 CORAM: The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.A.No.1004 of 2011 & M.P.No.1 of 2011 The Government of India, Ministry of Human Resource Development, (Department of Higher Education), Shastri Bhawan, New Delhi. ... Appellant Vs. 1.SRM University, (Deemed to be University Under Section 3 of the UGC Act), Rep. by its Registrar, SRM Nagar, Kattankulathur 603203, Kancheepuram District, Tamil Nadu. 2.The Secretary, Bahadur Shah Zafar Marg, University Grants Commission, New Delhi. (Respondent - 2 is given up as no relief is sought for as against them in the writ petition) ... Respondents Prayer :- Writ appeals filed under clause 15 of the Letter Patent against the order dated 18.03.2011 made in W.P.No.256 of 2011. --------- For Petitioner : Mr.M.Ravindran Addl. Solicitor General of India, assisted by Mr.S.Haja Mohideen Ghisthi, Senior Central Govt. Counsel For Respondents: Dr.Rajeev Dhavan, Senior counsel for Mr.B.Saraswathi for R1 Mr.R.Thiyagarajan Senior counsel for Mr.P.R.Gopinath for R2 --------- ORDER
THE HON'BLE CHIEF JUSTICE & T.S.SIVAGNANAM, J.
This appeal is directed against the Judgment and order passed in W.P.No.256 of 2011 dated 18.03.2011, whereby the learned single Judge allowed the writ petition by seting aside the impugned order passed by the appellant, and directed the appellant to consider the proposal of the 1st respondent-writ petitioner for their Off Campus Centre at Tiruchirapalli.
2. The Government of India, Ministry of Human Resources Department, which was arrayed as the first respondent in the writ petition, is the Appellant in this appeal.
3. The challenge in the writ petition was to an order passed by the appellant, dated 16.11.2010, and a direction was sought to direct the appellant to consider the first respondent's proposal to bring the off Campus Centre at Tiruchirapalli under the ambit of the respondent University, by applying the regulation prevailing at the time of the application and not in accordance with the UGC Regulation of 2010 and to grant approval to start the Off Campus Centre for the academic year 2011-12.
4. Some factual background would be necessary before we approach the controversy. The respondent University was declared as an institution deemed to be an University as per Section 3 of the University Grants Commission Act, 1956, (UGC Act) during August 2002 and it is stated that they have campuses and conducts courses at Chennai and Uttar Pradesh. A Public Interest Litigation was filed before the Hon'ble Supreme Court in W.P.(Civil) No.142 of 2006, as regards the functioning of deemed to be Universities in the country and the Government of India by notification, dated 06.07.2009, set up a committee to review the functioning of the existing institutions within "Deemed to be Universities" with wide ranging mandate. Concurrently the UGC was also directed to take up review of the functioning of all deemed to be Universities with respect to maintenance of standards, especially with regard to availability of qualified faculty and infrastructure. This Committee shall be referred to as the "Prof.Tandon Committee". The Prof.Tandon Committee submitted a report on 19.10.2009, in which, the first respondent falls in group2/table -2, which was found to be deficient in certain matters to transit to group-1, and a period of three years was granted to make good the deficiencies for their continuation as Deemed Universities. These facts are not in dispute, but the contention of the learned Senior counsel appearing for the first respondent is that the placement of the respondent University in group-2 is not germane to the controversy in this litigation.
5. The case of the respondent University is that they submitted a proposal to the Ministry of Health, Government of India for starting a new campus in Trichirapalli to house a medical college as a off campus institution. The same proposal was also submitted to the UGC on 12.01.2008. The UGC by communication dated 13.02.2008, conveyed its no objection for the proposal subject to various conditions. It is stated that based on such no-objection, the respondent University created all infrastructure facilities for establishing the institution by incurring huge costs. On 16.01.2009, the respondent University applied to the appellant Department in the prescribed format for starting the new institutions as off campus institution. This proposal was forwarded to the UGC for the purpose of examination on various aspects. On receipt of the no objection certificate from the UGC, the Medical Council of India (MCI) appears to have sent a letter on 13.03.2009, asking for details regarding the final approval of the off site campus by the UGC. In the meantime, the respondent University approached the Tamil Nadu Dr.M.G.R. Medical University, Chennai for affiliation and the said Dr.M.G.R. Medical University gave its consent for affiliation, which was forwarded by the Ministry of Health to the MCI, by communication dated 01.06.2009. It is stated that the MCI conducted an inspection of the off campus centre at Trichirapalli and by their communication dated 09.07.2009, forwarded their recommendations to issue a letter of permission for establishment of new Medical college at Trichirapalli for the academic session 2009-10 and a letter of permission in this regard was given by the Health Ministry in their letter dated 14.07.2009.
6. For the Engineering college, it appears that necessary permission was granted by the AICTE on 23.07.2010 and requisite affiliation from the Anna University granted on 27.07.2010.
7. Ultimately, the University Grants Commission by their proceedings, dated 30.09.2009, informed the appellant after referring to the appellant's communication, dated 03.03.2009, forwarding the proposal of the first respondent for including the off campus under their purview and informed the appellant that the proposal was examined by UGC, as per the guidelines and an expert committee was constituted for on spot assessment of two institutions and the committee recommended that both the Engineering college and the Medical college at Trichirapalli be brought under the ambit of the respondent University. The UGC by their communication dated 05.01.2010, informed the first respondent University that their proposal to start the off campus was referred to the appellant and the appellant raised certain queries and copy of such communication was enclosed and the respondent was directed to send their reply on the issue raised by the Government of India along with the supporting document. The UGC also informed the respondent University that no students should be admitted to the academic programme of the proposed new off campus centre at Trichirapalli till the time the individual colleges are formerly declared as approved constituent unit of deemed University, by notification in Gazette of India. The Medical Council of India, by communication dated 05.04.2010, informed the first respondent while reiterating their earlier decision, directed the first respondent to discharge all students immediately and submit compliance for further action. The respondent University challenged the direction issued by the MCI to discharge the students who were admitted by filing a writ petition being W.P.No.5903 of 2010, and an order of ad-interim direction was granted on 27.04.2010 in M.P.No.4 of 2010, directing the MCI to grant renewal of permission for the second year for the academic year 2010-11. The UGC by notification dated 21.05.2010, brought a new regulation called the UGC (Institutions Deemed to be Universities) Regulations, 2010 (hereinafter referred to as the ' 2010 Regulations'). These Regulations were to regulate in an orderly manner the process of declaration of institutions as Deemed to be Universities and for such other objects. It is brought to the notice of this Court by the learned Senior counsel appearing for the first respondent that after the 2010 Regulations, were notified the appellant directed the first respondent University to change the management structure according to the new 2010 Regulations. This communication was challenged by the first respondent by filing a writ petition being W.P.No.16015 of 2010, which was tagged along with a batch of similar cases and the writ petitions were dismissed and writ appeals have been filed against the judgment and this bench has entertained the appeals and granted order of status quo and the same was pending.
8. The first respondent filed another writ petition being W.P.No.10952 of 2010, praying for issuance of a writ of Mandamus to grant necessary approval for starting the off campus institution. The learned Single Judge of this Court, by order dated 15.06.2010, directed the appellant to grant approval/sanction for starting off campus institution, if the respondent proposal is in order within a period of two weeks,. The appellants herein filed W.A.No.982 of 2010, against the said direction in the writ petition and this Bench by order dated 22.09.2010, modified the direction issued by the learned Single Judge, and directed the appellant to consider the case of the first respondent for grant of approval/sanction to start the off campus institution in accordance with the relevant Rules and Regulations of UGC and take a decision within a period of four weeks. Pursuant thereto, the appellant after taking note of the resolution passed by the UGC and communicated on 09.11.2010, by order dated 16.11.2010, accepted the recommendation of UGC and directed the first respondent University to apply afresh for inclusion of their engineering college and medical college at Trichirapalli in accordance with the 2010 Regulations. The decision taken by the appellant was subject matter of challenge in W.P.No.256 of 2007 and the learned Single Judge of this Court, by Judgment and order dated 18.03.2011, allowed the writ petition, set aside the order passed by the appellant and directed the proposal of the first respondent/writ petitioner dated 28.08.2007 for off campus centre at Trichirapalli, to be considered by applying the guidelines of the UGC, which were in existence prior to the 2010 Regulations in the light of the recommendation of UGC dated 30.09.2009. Aggrieved by such Judgment and order, the Government of India has preferred this appeal.
9. Mr.M.Ravindran, the Learned Additional Solicitor General appearing for the appellant submitted that for the first time the appellant received a proposal from the first respondent to start off campus institution only on 16.01.2009 and it has been wrongly stated by the first respondent before the learned Single Judge as well as the list of dates and events circulated to us that such proposal was submitted on 28.08.2007.
10. Dr.Rajeev Dhavan, the learned Senior appearing for the first respondent very fairly admitted that the proposal dated 28.08.2007, was not submitted to the appellant, but it was a letter addressed to the Ministry of Health and the said submission is a mistake. Therefore, the controversy as regards the date of first submission has been put at rest and admitted by the first respondent that proposals to start of new off campus institute were given to the appellant in the required proforma only on 16.01.2009.
11. The learned Additional Solicitor General of India further submitted that the notification was received from the Election Commission of India on 08.03.2009, directing the Ministry to keep in abeyance all pending proposals till completion of General Election to Lok Sabha, 2009. Thereafter, the appellant by communication dated 04.06.2009, directed the UGC to keep all proceedings in abeyance. Perusal of the said communication reveals that pending proposals were directed to be kept in abeyance till a thorough review of the functioning of the existing to be Deemed Universities is undertaken. The learned counsel took us through the report of the Prof.Tandon committee and submitted that the first respondent University is placed in serial No.39 of Table-2 and the Committee recommended grant of three years period for rectifying the deficiencies. It is submitted that in the said state of affairs despite the University having been directed not to admit any students, the first respondent admitted students and in this regard certain clarification was sought for by the UGC, by their communication dated 14.12.2009. It is further submitted that under the 2010 Regulations, in regulation No.23.0 all proposals for establishing off campus centre, which are either pending or in process in the UGC or have been received by the Central Government shall be governed by the 2010 Regulations. The first respondent has challenged the 2010 Regulation before this Court the first respondent cannot maintain a separate writ petition, seeking for grant of approval under the Old Regulation having questioned the New Regulation. Therefore, it is submitted that the learned Singe Judge was wrong in directing the first respondent's application to be considered under the old guidelines, after the same has been superseded by the 2010 Regulations. It is further submitted that the status of Deemed to be University is to be granted by the Government of India on the advise of UGC and it is for the appellant to accept or reject the advise of UGC and unless the advise of UGC is accepted by the Central Government and notification issued, the process cannot be stated to have been completed. Therefore, it is submitted that the appellant was fully justified in stating that the application of the first respondent can only be considered as pending before the Government, when the 2010 Regulations came into force.
12. The learned Additional Solicitor General of India further submitted that the matter concerning these Deemed to be Universities is now seized of by the Supreme Court and the first respondent may approach the Supreme Court as was done by the Symbiosis, International University, who sought for permission to start a BBA programme in its off campus centre at Noida and the Supreme Court passed an order on 03.12.2010, issuing certain directions. The learned Additional Solicitor General relied on the following judgments of the Hon'ble Supreme Court as regards the issue as to what would be the relevant Rule, which should be applied to a pending application under various statutes.
i)Howrah Municipal Corpn. and others vs. Ganges Rope Co. Ltd and others [(2004) 1 SCC 663]
ii)Union of India and Others vs. Indian Charge Chrome and another [(1997) 7 SCC 314]
iii) V.Karnal Durai vs. District Collector, Tuticorin and another [(1999) 1 SCC 475]
iv)State of West Bengal vs. Terra Firma Investment & Trading Pvt. Ltd (Civil Appeal No.4832 of 1992) with Calcutta Municipal Corporation and Others vs. Terra Firma Investment & Trading Pvt. Ltd and others (Civil Appeal No.4834 of 1992) [(1995) 1 SCC 125]
v) Usman Gani J.Khatri of Bombay vs. Cantonment Board and others (SPL (C) No.647 of 1992) with Girdhar Dwarkadas Sharma and others vs. Pune Cantonment Board and others (SPL (C) 648 of 1992) with Devendra Sadashiv Kale and another vs. Cantonment Board, Pune and others (SPL (C) No. 908 of 1992) [(1992) 3 SCC 455]
vi)State of Tamil Nadu Vs. M/s.Hind Stone and others [(1981) 2 SCC 205]
vii)Esskey Roadways (Firm) vs. Anandhakrishnan Bus Service, [(1994) 6 SCC 71
viii)T.Vijayalakshmi and others vs. Town Planning Member and another, [(2006) 8 SCC 502]
ix)Chairman-Cum-Managing Director, Coal India Limited and others vs. Ananta Saha and others [(2011) 5 SCC 142]
13. Mr.R.Thiyagarajan, the learned Senior counsel appearing for the UGC adopted the arguments of the learned Additional Solicitor General.
14. Per contra, Dr.Rajiv Deevan, learned Senior counsel, after inviting our attention to the dates and events, which we have referred to in the preceding paragraphs, submitted that the UGC statute has specifically restricted the Rule and Regulation making power from retrospective application, where any one may be prejudiced and reference was made to Section 25 (3) and 26(3) of the UGC Act and submitted that no Regulation could be retroactive so as to prejudicially affect the interest of the first respondent. The learned Senior counsel laid emphasis on the language employed in Section 26(3) and stated that the words used in Section 25(3) and 26(3) of the UGC Act are not "vested" or "accrued" but "so as to prejudicially affect the interest of the any person". The learned Senior counsel referred to Regulation 1.2 of the 2010 Regulations and contended that the language is clear that the 2010 Regulations shall apply to every institution, seeking declaration as Deemed to be University, albeit prospectively. Regarding Regulation 23, on which the appellant laid emphasis, it was submitted by the learned Senior counsel that the only way of reconciling Regulation 23 with Regulation 1.2 is by stating that Regulation 1.2 must be given overriding effect consistent with Section 25(3) and 26(3) of the UGC Act. The learned Senior counsel further submitted that grave prejudice is caused to the first respondent on account of the direction given by the appellant to apply afresh under the 2010 Regulations and the power under the Regulation itself is prospective and cannot prejudice anyone. Reference was also made to Section 6 of the General Clauses Act, 1879. In support of his contentions, the learned Senior counsel relied on the decisions of the Hon'ble Supreme Court in (1992) 1 SCC 428, (1987) 3 SCC 516, (1980) 1 SCC 634. Further, the learned Senior counsel submitted that the decisions relied on by the appellant, are not applicable to the facts of the case. With the above submission, the learned Senior counsel submitted that the appeal deserves to be rejected.
15. It is on these rival contentions that we have to see whether the learned Single Judge was justified in allowing the writ petition.
16. Though elaborate submissions have been made on either side, the issue which falls for consideration lies in a narrow campus.
17. The learned Additional Solicitor General while assailing the correctness of the impugned judgment and order contended that the application given by the first respondent which is in the form of proposal, was received by the appellant only on 16.01.2009 and as per the process envisaged under Section 3 of the UGC Act, it cannot be stated that the approval has been completed since the Government has not issued any notification based on the recommendation's of UGC and in the absence of any such notification, the proposal of the first respondent can only be considered as pending, when the 2010 Regulation came into force. Therefore, it is contended that the Learned Single Judge was not justified in directing the proposal of the first respondent to be processed under the old guidelines. It is further submitted that mere filing of an application will not confer any right on the first respondent to get necessary approval and the rule which is in force as on the date when the application is considered by the Central Government shall alone prevail and therefore, the first respondent has to comply with the conditions contained in the 2010 Regulations. As regards the proposition, as to which rule or regulation has to be applied to the case of the first respondent, the learned counsel placed reliance on various decisions of the Hon'ble Supreme Court, which have referred to earlier wherein, the Hon'ble Supreme Court considered this question in respect of applications under various other statutes.
18. It is admitted that the first respondent was notified and declared as deemed to be university by notification dated 02.08.2002. Based on the review made by the Prof.Tandon Committee the first respondent was placed in category -2 who were required to rectify certain deficiency within a period of three years to transit to category-1. However, it is noticed that the status of the first respondent as deemed to be university continues as on date and the interim directions granted by the Supreme Court in Viplav Sharma case pertain to the institutions (44) who were placed in category-3 i.e. those deemed to be universities, whose past performance nor their promises for future have the attributes to retain the status of Universities.
19. The first respondent applied to the Ministry of Health, Government of India, on 28.08.2007, along with the feasibility report seeking permission to establish a new Medical college at Trichirapalli. Proposal in this regard, was also sent to UGC on 12.01.2008, requesting grant of permission to start Medical, Dental, Engineering and other courses. Since the no-objection from the Medical Council of India, Dental Council of India etc was required a request was made to the UGC on 22.01.2008 for issuance of no objection certificate to start the off campus units. The UGC on 13.02.2008, granted no objection certificate subject to five conditions, which are quoted below:-
1.The institutes/courses are recognized by Medical Council of India and other relevant statutory bodies as the case may be.
2. These institutes will follow the norms and standards as prescribed by the respective statutory councils.
3. A formal proposal in the prescribed format will be submitted to UGC for inclusion of these institutes under the ambit of Deemed University through Ministry of Human Resource Development.
4. The proposal will be examined by the UGC with the help of a duly constituted Expert Committee.
5. The final approval of inclusion of these institutions under the ambit of the Deemed University will be notified by the Government of India, Ministry of Human Resource Development on the advice of UGC.
20. On receipt of the no objection from the UGC, the first respondent applied to the MCI for their approval and their application was returned on the ground that the first respondent does not have a valid consent from the affiliating University as required under the relevant Regulation. This communication was forwarded to the first respondent for their comments. At this juncture the first respondent submitted their proposal to the appellant on 16.01.2009, in the prescribed format which was forwarded to the UGC for examination and comments. In the mean time, the Tamil Nadu Dr.M.G.R. Medical University, by their letter dated 25.05.2009, issued a letter of consent of affiliation. This consent for affiliation was to enable the first respondent to apply to the Government of India for approval. The MCI on 13.03.2009, directed the first respondent to forward the copy of final approval/notification issued by UGC/appellant herein for inclusion of the said college under the ambit of the first respondent for further consideration in the matter. Based on the consent of affiliation given by the Tamil Nadu Dr.M.G.R. Medical University, the MCI inspected the off campus centre at Trichirapalli on 05.06.2009 and 06.06.2009 and recommended to the Central Government, to issue letter of permission for establishing a new medical college with annual take of 150 students for the academic session 2009-10. The Government of India, Ministry of Health on 14.07.2009, granted letter of permission for establishment of new Medical college at Trichirapalli and it is useful to refer to the said letter of permission dated 14.07.2009, which is as follows:-
In continuation to this Ministry's Letter of Intent of even number dated 13th July 2009 and with reference to your letter dated 13th July 2009, I am directed to convey the approval of the Central Government for establishment of new medical college at Triuchirapalli, Tamil Nadu by SRM University, Chennai, Tamil Nadu with an annual intake of 150 (One Hundred and Fifty only) students with prospective effect i.e. from the academic year 2009-10 under Section 10(A) of the IMC Act, 1956, as amended.
2. This permission of the Central Govt. for establishment of new medical college and admission of students is initially for a period of one year. It will be renewed on yearly basis on verification of achievement of annual target set out in the project report. This process of annual renewal of permission will continue till such time the establishment of medical college and expansion of hospital facilities are completed as per norms of Medical Council of India. The college shall not admit more than one batch of students against this letter of permission. The college shall also apply to Medical Council of India for renewal of permission well before the commencement of next academic session. While applying for such renewal, the achievement in terms of infrastructure, staff and equipment as spelt out in the time bound action plan and as required by Medical Council of India norms must be clearly indicated. The next batch of students shall not be admitted unless renewal of permission is granted by the Central Government.
3. This permission is subject to the Bank Guarantee of Rs.9.50 crores (Rupees 2.00 crores towards medical college and 7.50 crores towards hospital facilities) furnished by SRM University, Chennai, Tamil Nadu for the establishment of medical college and hospital found to be adequate/genuine on all counts. The admission process for the academic year 2009-2010 has to be completed in accordance with the time schedule indicated in the Graduate Medical Education Regulation, 1997 as amended.
21. As the first respondent had already submitted its proposal to the UGC, an inspection was conducted by the experts appointed by the UGC and the inspecting committee recommended the proposal and the recommendations were accepted by the UGC in their resolution dated 25.09.2009, recommending to the Government for inclusion of the off campus institution at Trichirapalli. This resolution dated 25.09.2009 was communicated to the Government on 30.09.2009. Admittedly, on the date when these expert bodies namely the UGC, MCI, the affiliating University as well as the Ministry of Health placed their recommendations/approval/permission, the procedure to be followed was as per the guidelines, which existed prior to the 2010 Regulations. Clause 15 of the guidelines, deals with the manner in which the proposals for declaring an institution as deemed to be University under Section 3 of the UGC Act have been spelt out. At this stage, it would be relevant to refer to clause 15 of the guidelines, which reads as follows:_ "15.It would be permissible for the deemed to be university to open centres in its own area or in places other than its headquarters. For this purpose, the following parameters will be followed:-
(i) The Centre(s) shall be set up with the prior approval of the UGC and that of the State Government where the Centre(s) is/are proposed to be opened.
(ii) Proposal for starting various academic courses shall have the approval of the UGC.
(iii) Admission procedure and fee fixation for students shall be in accordance with the norms/rules prescribed by the UGC.
(iv) The over-all performance of the Centre shall be monitored annually by the UGC whose directions for management, academic development and improvement shall be binding.
(v) If the functioning of the Centre does not fulfil UGC's directions and recommendations and it remains unsatisfactory for three years, as decided by the UGC on the basis of the recommendations of the Monitoring Review Committee, the Deemed University shall be instructed by the UGC to close down the Centre in which event the liabilities of the Centre shall be taken over by the concerned Deemed University. (vi) It would be permissible for the Deemed University to open academic Centre(s) not only anywhere in India but also in any of the foreign countries. The academic centre(s) in the foreign countries shall be opened only after the due permission from the Government of India/UGC and also that of the Government of the host country. (vii) In case of foreign campus/campuses, the remittance of funds shall be governed by the Reserve Bank of India rules.
22. As per the guidelines, the off campus institutes shall be set up with the prior approval of the UGC and that of the State Government, proposals have to be approved by UGC, admission procedure, fee fixation etc., shall be in accordance with the norms prescribed by UGC and over all performance will be annually monitored by the UGC and the UGC has power to recommend for closure on the basis the recommendation's of Monitoring Review Committee. Thus, it is manifest that the approval of UGC is pivotal and unless strong and valid reasons exist, the Central Government would not be justified in throwing out such approval by an apex expert body. Though the approval of UGC was granted as far back as on 30.09.2009, till June 2010, the appellant did not act on such approval and the matter was kept pending. This necessitated the first respondent to approach this Court for certain directions.
23.Thus after the 2010 Regulations, came into force a letter was sent to the first respondent on 23.06.2010, directing them to change the management structure in accordance with the 2010 Regulation, which came into effect on 21.05.2010. This letter dated 23.06.2010, was subject matter of challenge in W.P.No.16015 of 2010, which is now pending in appeal. Therefore, the only question to be considered is, despite the approval of UGC, MCI, Ministry of Health and the Medical University, which were all given nearly seven months prior to the date of coming into force of the 2010 Regulation, should the approval be treated as a pending application and whether Regulation 23.0 has to be applied.
24. The first respondent raised a moot question by pleading that if the 2010 Regulation is to be applied, great prejudice would be caused to them. This question was considered by the learned Single Judge very elaborately and the learned Single Judge opined that clause 23 of the 2010 Regulation cannot be applied to the case of the first respondent and their proposal cannot be held to be pending process before UGC. We may at this stage refer to the reasons assigned by the learned Single Judge in this regard:-
"35. Either under the Guidelines, 2000 or Regulations, 2010, the conditions contemplated under the respective Guidelines and Regulations, which are to be primarily assessed by the University Grants Commission based on its Expert Committee opinion, of course in addition to the other professional bodies, like the Medical Council of India, All India Council for Technical Education, etc., who are governed by the statutory provisions regarding the satisfaction based on the expert committee report in respect of the infrastructural facilities, have to be fulfilled. When all the said statutory bodies have completed their process, the notification to be issued by the Government of India, which is no doubt a statutory requirement, is only a necessary consequence, for the reason that the Government can take a decision regarding such permission only in the overall interest of education in the country as a policy and cannot go against the expert's opinion given at various levels, either by the Medical Council of India or All India Council for Technical Education, including the University Grants Commission.
36. The rule making power has been given to the Central Government under Section 25 of the UGC Act, while such power has been conferred to the University Grants Commission for the purpose of making regulations under Section 26 of the UGC Act, categorizing various aspects. The rule making power of the Central Government is in respect of various items stated under Section 25(2) of the UGC Act, while the regulation making power of the University Grants Commission, by making notification in the official gazette, is as per various clauses in Section 26(1) of the UGC Act. Sections 25(2) and 26(1) of the UGC Act categorizing the jurisdiction of the Central Government and University Grants Commission in rule making and regulation framing respectively, are as follows:
Section 25. Power to make rules. -
(1) *** (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the procedure for the retirement of members under section 6;
(b) the disqualifications for continuing as a member of the Commission;
(c) the terms and conditions of service of members of the Commission;
(d) the terms and conditions of service of employees appointed by the Commission;
(e) the additional functions which may be performed by the Commission under clause (j) of section 12;
(f) the return and information which are to be furnished by Universities in respect of their financial position or standards of teaching and examination maintained therein;
(g) the inspection of Universities.
(h) the form and manner in which the budget and reports are to be prepared by the Commission;
(i) the manner in which the accounts of the Commission are to be maintained;
(j) the form and manner in which returns or other information are to be furnished by the Commission to the Central Government;
(k) any other matter which has to be, or may be, prescribed.
Section 26. Power to make regulations.-
(1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder
(a) regulating the meetings of the Commission and the procedure for conducting business thereat;
(b) regulating the manner in which and the purposes for which persons may be associated with the Commission under section 9;
(c) specifying the terms and conditions of service of the employees appointed by the Commission;
(d) specifying the institutions or class of institutions which may be recognised by the Commission under clause (f) of sub-section 2;
(e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University, having regard to the branch of education in which he is expected to give instructions;
(f) defining the minimum standards of instruction for the grant of any degree by any University;
(g) regulating the maintenance of standards and the co-ordination of work or facilities in Universities.
(h) regulating the establishment of institutions referred to in clause (ccc) of section 12 and other matters relating to such institutions;
(i) specifying the matters in respect of which fees may be charged, and scales of fees in accordance with which fees may be charged, by a college under sub-section (2) of section 12-A;
(j) specifying the manner in which an inquiry may be conducted under sub-section (4) of section 12-A.
37. The Regulations, 2010 has been framed by the University Grants Commission as per the powers conferred under Section 26(1)(f) and (g) of the UGC Act. The UGC Act also enables the Government and the University Grants Commission, while making rules and regulations, to give effect to such rules and regulations retrospectively, earlier from the date of commencement of the rules or regulations, but that power is qualified to the effect that such retrospective effect shall not prejudicially affect the interest of any person. It is relevant to extract Sections 25(3) and 26(3) of the UGC Act, which are as follows:
Section 25. Power to make rules. -
(1) *** (2) *** (3) The power to make rules conferred by this section shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.
Section 26. Power to make regulations.-
(1) *** (2) *** (3) The power to make regulations conferred by this section except clause (i) and clause (j) of sub-section (1) shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the regulations or any of them but no retrospective effect shall be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable.
38. By virtue of the power conferred under Section 26 of the UGC Act, the Commission has framed the Regulations, 2010 and in the commencement of the regulations, regarding 'application', Clause 1.2 states as follows:
1.2. These Regulations shall apply to every institution seeking declaration as an institution deemed to be university under the Act as also albeit prospectively, to an institution which has been declared as an institution deemed to be university under Section 3 of the University Grants Commission Act, 1956." Therefore, it is clear that despite the powers available to the University Grants Commission as per Section 26(3) of the UGC Act to give effect to any regulations retrospectively, the University Grants Commission, by exercising its regulation making power, has made it clear that the Regulations, 2010 are applicable prospectively with the word 'albeit'.
39. But the issue that is to be considered is in respect of the application filed in the form of proposal before the coming into effect of the Regulations, 2010, in respect of which Clause 23 of the Regulations, 2010 operates. Clause 23 of the Regulations, 2010 is as follows:
23.0. Consideration of old proposals:
All proposals (whether seeking declaration as an institution deemed to be university or seeking approval for establishing off-Campus Centres/off-shore Campus(es) or inclusion of off-Campus Centres in the ambit of the institution deemed to be university), which are either pending/in process in the Commission or have been received by the Central Government, shall be governed by these Regulations.
40. Even though there is an apparent conflict between Clause 1.2 and Clause 23.0 of the Regulations, 2010, the terms are to be harmoniously construed to see that no damage is caused to the Regulations, 2010, which is, of course, framed with the noble object of streamlining the deemed to be universities in orderly manner and also to prevent institutions of dubious quality from being declared, as it is enshrined in the preamble of the Regulations, 2010.
41. While the intention of the makers of the Regulations, 2010, as it is seen in the initial portion, is very categoric that the Regulation is applicable only prospectively, Clause 23 can be applied only in cases where the proposals are still pending with the University Grants Commission or received by the Central Government. Therefore, it is to be construed, in my considered opinion, that in cases where the process of the University Grants Commission has been completed, which is possible as per the provisions of the Act and Regulations governing the University Grants Commission after receiving the expert's opinion about the infrastructural facilities and having satisfied about the proposal and making recommendation to the Central Government, the same cannot be held to be pending process before the University Grants Commission, in which event Clause 23 of the Regulations, 2010 will not apply.
25. In our view, the learned Single Judge was perfectly right in observing that clause 23 would have application to cases where the proposal were still pending with the UGC or have been received by the Central Government . There may be cases where, the UGC might have appointed expert committee to inspect the institution and such committee may have inspected and report awaited or inspection might not have been carried out and therefore, there was no occasion for the UGC to take a decision on the proposal. Admittedly, after compliance of all the requirements as per the guidelines of UGC, the final approval of UGC was granted on 30.09.2009 and on and after the said date, there was nothing pending with UGC. The Medical Council of India also had granted approval with the annual in take of 150 students.
26.In paragraph 44 to 49 of the impugned judgment, the learned Single Judge had rightly distinguished the various decisions relied on by the learned Additional Solicitor General and the learned Senior counsel for the UGC. Infact the decisions cited before us, are also to the same effect and some of which has also been considered by the learned Single Judge. In any event, all those decisions do not arise out of interpretation of the provisions of the UGC Act, its guidelines and Regulations, but arose under various other enactments such as Town and Country Planning Act, Mines and Minerals Act and Motor Vehicles Act etc. We may safely conclude by saying that while interpreting as to whether a proposal is said to be pending or not, in the light of language employed in Regulation 23 of the 2010 Regulation, we are first required to examine the facts of the case vis-a-vis the Regulation. In the preceding paragraphs, we have examined the same, we are in full agreement with the learned Single Judge in holding that the first respondent's proposal cannot be held to be pending process before the UGC.
27. Having said so, the next question would be whether the proposal can be said to be pending/ in process with the Central Government. We may at this stage, quote the observations/findings of the learned Single Judge on this point.
50. Moreover, if the Central Government, on receipt of the report and recommendations of the University Grants Commission, has passed orders before the commencement of the Regulations, 2010, based on the recommendations of the University Grants Commission dated 30.9.2009 which has become final, such order of the Central Government would have been valid as per the Guidelines, 2000. The non consideration of the recommendations of the University Grants Commission in respect of the petitioner/institution by the Central Government is not on the basis of any materials found on the inspection conducted by the statutory authorities in accordance with various provisions of the UGC Act, but accidentally due to the reason that the Government and the University Grants Commission want to revamp the functioning of the deemed to be universities and it was in that consultation process, the Government has not passed orders. Therefore, the non passing of the order by the Central Government based on the recommendations of the University Grants Commission itself cannot be taken as a ground for applying the provisions of the Regulations, 2010. Hence, there is no conflict between Clause 1.2 and 23.0 of the Regulations, 2010 and the same, in my firm opinion, have to be harmoniously construed based on the factual aspect about the consideration of application by the University Grants Commission and the Central Government.
51. Under such circumstances, it is not possible to accept the contention of the learned Senior Counsel appearing for the second respondent as if Clause 23 of the Regulations, 2010 has to be construed as a special rule and Clause 1.2 of the Regulations, 2010 as a general rule. There is absolutely no comparison between Section 47 and Order 21 Rules 2 and 3 of the Code of Civil Procedure, which was considered by the Apex Court in Sultana Begum v. Prem Chand Jain, [1997] 1 SCC 373.
52. For the foregoing reasons, I have no hesitation to come to a conclusion that the application made by the petitioner dated 28.8.2007 for starting off-campus centre at Tiruchirapalli in respect of a medical college and engineering college as a constituent of the petitioner deemed to be university cannot be considered under the Regulations, 2010. Accordingly, the impugned order of the Government, even though the same was passed in consultation with the University Grants Commission which is stated to have recommended for application of the Regulations, 2010 in respect of the petitioner in its advice dated 9.11.2010, cannot be sustained.
53. There is one another aspect submitted by Dr.Rajeev Dhavan regarding the concept of prejudice as explained under Sections 25(3) and 26(3) of the UGC Act, elicited above. While the powers have been given to the Central Government as well as the University Grants Commission to apply the rule or regulation framed by them retrospectively, a restriction has been placed on such power, where such retrospective operation would prejudicially affect the interest of any person to whom such rule or regulation would apply.
28.We are in agreement with the findings of the learned Single judge and the prejudice caused to the first respondent is manifest on the face of the record especially when substantial infrastructure has been created at huge cost and all the experts bodies have approved and the matter has been in process from 2007, commencing from the first proposal given to the Ministry of Health, Government of India.
29. As regards the effect of the pendency of the public interest litigation before the Supreme Court, as noticed above, the first respondent has been placed in category-2 in the expert committee's report granting three years time to rectify the deficiencies to enable them to move to category-1. Thus the first respondent continues to enjoy the status as a Deemed to be University earlier and as on date, and in any event, any proceedings or approvals granted by the UGC or the appellant would be subject to the out come of the decision of the Apex Court and even the appellant did not totally bar the first respondent from proceeding with their proposal, but only directed them to apply afresh under the 2010 Regulations.
30. The learned Senior counsel appearing for the appellant placed reliance on a communication dated 01.01.2010, from the UGC to the respondent University. In the said communication, it has been stated that no student should be admitted to the academic programmes of the proposed new off campus centre at Tiruchirapalli under the enrollment of SRM Institute of Science and Technology till the time the proposed centre comprising the individual colleges concerned, are formerly notified as an approved constituent unit of the deemed university in the gazette of India. Therefore, it is submitted that the respondent was not justified in admitting students and a formal notification having not been issued by the Government of India, no right accrues in favour of the respondent.
31. As rightly pointed out by the learned Senior counsel for the respondent, this communication dated 01.01.2010, only states that the off campus centre shall not be treated as a constituent unit of the respondent, deemed University. In fact the respondent University on 12.01.2010, sent a reply to the UGC stating that the principle approval of UGC was granted by letter dated 13.02.2008, and as per the directions of the UGC, the respondent submitted a regular application to the Ministry of Human Resources and Development so as to forward it to the UGC and they have started the process of establishment of infrastructural facilities, procurement of equipments, identification of faculty etc., and on completion of the process, they approached the MCI for inspection and approval through the Ministry of Health and Family Welfare. However, the matter was dragged on because of lack of direction as to whether the MCI approval should be done by first or the approval of the off campus institute. It has been further stated that they have also approached the Tamil Nadu Dr.M.G.R. University for affiliation since the Ministry of Health insisted on affiliation before inspection. The MCI inspected the college during July 2009 and a letter of intent was given by the MCI to start the Medical College on 13.07.2009. It is further seen that based on such inspection and letter of intent, letter of permission of Ministry of Health was issued on 14.07.2009. Therefore, the respondent informed UGC that their earlier proposal of off campus institute at Trichy is approved and they will approach UGC for bringing the Chennai Medical College, Trichy within the ambit of SRM University, as they have already done with other constituent institution of their University. Therefore, the communication dated 01.01.2010, sent by the UGC, does not in any manner advance the case of the appellant. Further, it is to be noted that the reasons now projected in this appeal was not the reason mentioned in the order dated 16.11.2010, which was impugned in the writ petition. Thus, it appears that the appellant after having passed the order dated 16.11.2010, when the same was challenged in the writ petition have attempted to raise certain new grounds which were not mentioned in the impugned order and the same would be impermissible as per the settled legal principles.
32. As noticed by the learned Single judge, Section 26(3) of the UGC Act, confers power to make regulation which shall include the power to give retrospective effect, but no retrospective effect shall be given to any regulation so as to prejudicially affect the interest of any person to whom such regulation may be applicable. Therefore, the test would be whether if such regulation if given retrospective effect would have any prejudicial affect. Further, Regulation 1.2 of the UGC 2010 Regulation shall apply to every institution seeking declaration as an institution deemed to be University under the Act as also, albeit prospectively, to an institution which has been declared as an institution deemed under Section 3 of the UGC Act. However, Regulation 23 of the UGC 2010 Regulation, which deals with consideration of old proposal, it has been stated that all proposals which are either pending/in process in the commission or have been received by the Central Government shall be governed by the 2010 Regulations. Thus on a conjoint reading of Section 25 (3) and Section 26(3) of the UGC Act and Regulation 1.2 and Regulation 23 of the UGC 2010 Regulation, it can be safely concluded that the 2010 Regulation would have prospective application and cannot be stated to be retroactive as the power to make regulation under Section 26(3) of the Act does not empower to give retrospective effect to the regulation so as to prejudicially affect the interest of any person to whom the Regulation applies. Further, it was alternatively contended the concept of prejudice will override even if the application is pending or in process.
33. For all the above reasons, we find no grounds to interfere with the order and direction issued by the learned Single Judge in the impugned judgment.
34. In the result, there are no merits in this appeal and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
(M.Y.E.,C.J) (T.S.S.,J) 24.01.2012.
Index :Yes/No Internet:Yes/No pbn/sm Copy to:-
The Secretary, Bahadur Shah Zafar Marg, University Grants Commission, New Delhi.
THE HON'BLE THE CHIEF JUSTICE
and T.S.SIVAGNANAM, J.
Pbn/sm
Pre-Delivery Judgment in
W.A.No.1004 of 2011
24.01.2012.