Madras High Court
Srm University vs The Government Of India on 18 March, 2011
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.3.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.256 of 2011 SRM University (Deemed University under Sec.3 of the UGC Act) rep. by its Registrar SRM Nagar, Kattankulathur 603 203 Kancheepuram District, Tamil Nadu. .. Petitioner Vs. 1. The Government of India Ministry of Human Resource Development (Department of Higher Education) Shastri Bhavan, New Delhi 110 115. 2. The Secretary Bahadur Shah Jafar Marg University Grants Commission New Delhi 110 022. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of the first respondent in No.F.10-4/2010/U.3(A) and to quash the order dated 16.11.2010 made thereon and to direct that the petitioner's proposal dated 28.7.2007 to bring the "Off Campus Centre" at Irungalur, Tiruchirapalli, under the ambit of the petitioner University should be considered by the first respondent under the old regulation prevailing at the time of the application and not in accordance with the regulations of 2010 and grant approval to start the said "Off Campus Centre" by the petitioner for the academic year 2011-2012 onwards. For Petitioner : Dr.Rajeev Dhavan, Sr.Counsel Assisted by Ms.Priyanka Singh for Ms.B.Saraswati For Respondents : Mr.M.Ravindran Additional Solicitor General for Mr.S.Haja Mohideen Gisti, SCGSC for 1st respondent Mr.R.Thiagarajan, Sr.Counsel for Mr.P.R.Gopinathan for 2nd respondent ORDER
The brief facts of the case which are necessary to dispose of the matter are recapitulated below.
2.1. The writ petitioner was declared as an institution deemed to be a university as per Section 3 of the University Grants Commission Act, 1956 (for brevity, "UGC Act") in August, 2002 and it is stated to have campuses and courses under its ambit situated at Chennai and Modinagar, Uttar Pradesh. As per the decision in a public interest litigation before the Supreme Court in Viplav Sharma v. Union of India (W.P.(Civil) No.142 of 2006), wherein the Supreme Court considered a dispute regarding the functioning of deemed universities all over India, the petitioner/University was categorised under 'B' category, whose recognition was made subject to review.
2.2. On 28.8.2007, the petitioner has sent a proposal to the Ministry of Human Resource Development for creating a new campus in Tiruchirapalli to house a medical college and an engineering college under it as off-campus institutions. Simultaneously, a proposal was also sent to the University Grants Commission on 12.1.2008. The University Grants Commission, viz., the second respondent, has granted No Objection Certificate for the proposal in the communication dated 13.2.2008, subject to various conditions, including that the institutes/courses are to be recognised by Medical Council of India and other relevant statutory bodies; that the institutes should follow the norms and standards as prescribed by the respective statutory councils; that a formal proposal is to be sent in the prescribed format to the University Grants Commission for inclusion of these institutes under the ambit of deemed university through Ministry of Human Resource Development; that the proposal will be considered by the University Grants Commission with the help of a duly constituted Expert Committee; and that 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 the University Grants Commission. It is stated that based on the No Objection Certificate, the petitioner has created infrastructural facilities at the cost of Rs.300 Crores, which includes the cost of land and buildings, construction, equipment, etc. 2.3. On 16.1.2009, the petitioner has applied to the first respondent in the prescribed format regarding the said proposals to start new institutions at the off-campus at Tiruchirapalli. On 3.3.2009, the first respondent, after receiving the said proposal, has forwarded the same to the second respondent/University Grants Commission asking it to ensure that all relevant facts and aspects as are applicable to such cases are examined before comments are furnished to the Ministry.
2.4. When the No Objection Certificate granted by the University Grants Commission was sent to the Medical Council of India by the petitioner, the Medical Council of India, in its letter dated 13.3.2009, taking note of the fact that the University Grants Commission has not given its final approval for including the said college under the ambit of the petitioner/University, has directed the petitioner to produce the final approval from the University Grants Commission/Ministry of Human Resource Development for inclusion of the said college under the ambit of the SRM University (Deemed University) for further consideration and stated that the proposal will be considered only after receipt of the final permission/notification by the University Grants Commission/Ministry of Human Resource Development.
2.5. It is the case of the petitioner that when the first respondent has informed that the proposed institute does not have valid consent of affiliation from a University as required, the petitioner has approached the Tamil Nadu Dr.M.G.R. Medical University, Chennai for affiliation and the said University, by letter dated 25.5.2009, gave its consent of affiliation for the specific purpose of enabling the petitioner to apply to the Government of India for approval. It is stated that when the said letter of consent of affiliation of the Tamil Nadu Dr.M.G.R. Medical University was communicated to the first respondent, the first respondent, in its communication dated 1.6.2009 addressed to the Medical Council of India, directed it to take necessary action.
2.6. It is thereafter the Medical Council of India has conducted inspection of the off-campus centre at Tiruchirapalli on 5th and 6th June, 2009 and in the letter addressed to the first respondent dated 9.7.2009, has forwarded its recommendation to issue letter of permission for establishment of new medical college at Tiruchirapalli by the petitioner with an annual intake of 150 MBBS students for the academic session 2009-2010 and based on the same, the Central Government has issued letter of intent and letter of permission dated 13.7.2009 and 14.7.2009 respectively. The letter of intent was, however, subject to fulfillment of certain conditions, viz., providing all infrastructural facilities; rectification of deficiencies pointed out in the inspection report; not to admit students till the formal permission of Central Government is granted; and providing of bank guarantee for certain amount. A corrigendum was issued by the Central Government on 30.7.2009 in respect of the said letters dated 13.7.2009 and 14.7.2009 to the effect that "The Vice-Chancellor, SRM University, Chennai, Tamil Nadu" stated as endorsee No.3 in the said letters may be read and substituted with "The Tamil Nadu Dr.M.G.R.University, Chennai, Tamil Nadu".
2.7. It is stated that All India Council for Technical Education has granted approval for starting the engineering college in the same campus with intake of 300 students in five disciplines from the academic year 2010-11 vide order dated 23.7.2010 and the Anna University has granted affiliation to the five disciplines on 27.7.2010.
2.8. The University Grants Commission, after making a spot assessment through the Expert Committee in respect of the off-campus medical and engineering colleges, in the communication dated 30.9.2009 addressed to the first respondent, has recommended to include the SRM Institute of Science and Technology, Irungalur, Tiruchirapalli and Chennai Medical College and Hospital, Irungalur, Tiruchirapalli under the ambit of SRM Institute of Science and Technology, Deemed to be University, Chennai, Tamil Nadu.
2.9. Since the Government has raised certain queries to the University Grants Commission, the University Grants Commission, in the letter dated 5.1.2010, requested the petitioner to send its reply to the queries raised by the Government of India, along with supporting documents. The petitioner, in the letter dated 12.1.2010 addressed to the University Grants Commission, has given a detailed reply requesting the University Grants Commission to inform the first respondent about the factual position and grant necessary approval for running the proposed institution.
2.10. Meanwhile, the Medical Council of India has passed an order on 16.11.2009 directing the petitioner to discharge all the students admitted in the academic year 2009-2010, by referring to the letter of the Government of India dated 30.7.2009, wherein the Government of India has only rectified a mistake which has crept in the earlier letters of intent and permission stating "The Vice Chancellor, SRM University, Chennai, Tamil Nadu", instead of "The Tamil Nadu Dr.MGR University, Chennai, Tamil Nadu". It is stated that as against the said order, the petitioner has approached the Madurai Bench of this Court in W.P.No.5903 of 2010 and there has been an order of stay passed on 27.4.2010.
2.11. After the petitioner complied with the deficiencies pointed out, the Tamil Nadu Dr.M.G.R. Medical University, in the order dated 16.2.2010, has granted provisional affiliation to the petitioner to start MBBS Degree Course for the academic year 2009-2010 with an annual intake of 150 students and the said provisional affiliation was continued by the Tamil Nadu Dr.M.G.R. Medical University for the academic year 2010-2011 by order dated 12.11.2010. The Medical Council of India also, in its letter dated 12.7.2010, has renewed permission for admission of second batch of 150 MBBS students for the academic year 2010-2011. Based on these subsequent developments, the writ petition in W.P.No.5903 of 2010 was closed.
2.12. In the meantime, on 21.5.2010, the second respondent/ University Grants Commission has notified the UGC (Institutions Deemed to be Universities) Regulations, 2010 (for brevity, "the Regulations, 2010") 2.13. The petitioner has filed W.P.No.10952 of 2010 for a direction against the Government to forthwith grant necessary approval/sanction for starting off-campus institutions, as stated above, and the said writ petition came to be allowed on 15.6.2010, directing the Government to grant approval within two weeks from the date of receipt of the said order. However, the Government has not complied with the same and it was reported that a writ appeal was filed against the said order.
2.14. Having learnt that the Government of India in the letter dated 6.7.2010 addressed to the University Grants Commission has directed that in respect of 15 institutions, including the petitioner/University, the proposals are to be reconsidered in accordance with the provisions of the Regulations, 2010, the petitioner has challenged the said letter in W.P.No.16811 of 2010. The petitioner along with other deemed universities has also challenged the validity of the Regulations, 2010 in W.P.No.16015 of 2010. It is the case of the petitioner that in the said writ petition (W.P.No.16015 of 2010), the learned Senior Counsel who appeared for the University Grants Commission, has informed the Court that the University Grants Commission is not going to proceed further for a period of two weeks due to the pendency of the matter before the Supreme Court and that submission was recorded.
2.15. In the meantime, W.A.No.1982 of 2010 came to be filed by the respondents against the order passed in W.P.No.10952 of 2010. The Hon'ble First Bench, by order dated 22.9.2010, disposed of the writ appeal by modifying the order of the learned Single Judge to the effect that the appellant therein shall consider the application for approval/sanction to start the off-campus institutions in accordance with relevant Rules and Regulations of the University Grants Commission and take a decision within four weeks.
2.16. It was thereafter the first respondent has passed the impugned order dated 16.11.2010, on the basis of an advice of the second respondent/University Grants Commission dated 9.11.2010, directing the petitioner to apply afresh in accordance with the Regulations, 2010.
2.17. It is also stated that in respect of a similar case pertaining to grant of off-campus status to a Law College at Noida of the Symbiosis University, which is also a deemed university from Pune, W.P.(Civil) No.380 of 2010 came to be filed before the Hon'ble Supreme Court and that was directed to be tagged along with W.P.(Civil) No.142 of 2006 (Viplav Sharma v. Union of India and others) and in the meantime, the petitioner therein was permitted to admit students and conduct classes, however by informing the students before admission about the pendency of the writ petition.
2.18. In the said factual scenario, the above writ petition has been filed challenging the impugned order of the first respondent on various grounds, including:
(i) that the petitioner has made application much before the Regulations, 2010 came into force and the University Grants Commission and the Government have already considered the entire proposal and taken decision, based on which the petitioner has spent huge amount in starting the college, and therefore, the Regulations, 2010 cannot be applied;
(ii) that the undertaking given on behalf of the University Grants Commission that the Regulations, 2010 will not be applied has been violated;
(iii) that the petitioner has been placed under Category 'B', the institutions which are found to be deficient, but need to be rectified in a period of three years, and therefore, the status of deemed to be university continues and the matter is pending in the Supreme Court;
(iv) that the Expert Committee of the University Grants Commission in the report has already recommended the inclusion of the off-campus institutions under the ambit of the petitioner, Deemed to be University, and in such circumstances, there is nothing pending for the consideration of the University Grants Commission;
(v) that Regulation 23 of the Regulations, 2010 cannot be applied retrospectively in all cases, especially to the case on hand, wherein the statutory authorities have discharged their duties;
(vi) that the impugned order is inconsistent and when the University Grants Commission, after inspecting the campus, has given a clean recommendation, it cannot go back and recommend the first respondent to issue direction to the petitioner/University to apply afresh under the Regulations, 2010;
(vii) that the provision of rule itself is basically prospective in nature and the rule making power has been statutorily exercised by the Central Government under Section 25 of the UGC Act and the impugned regulations cannot be justified on the authority exercised by the University Grants Commission purportedly to be under Section 26(1)(f) and (g) of the UGC Act and therefore, the impugned Regulations are ultra vires the provisions of the UGC Act as well as the Constitution of India;
(viii) that the Regulations, 2010, if tested in the light of Article 14 of the Constitution of India, have to be struck down;
(ix) that the petitioner/University, having relied upon the conduct of the respondents and spent huge amount of money in starting the off-campus centre, cannot be made to wait further under the Regulations, 2010; and
(x) that the legitimate expectation of the petitioner has been breached by the impugned order of the first respondent.
3.1. In the counter affidavit filed by the first respondent, while denying the various averments made by the petitioner in the affidavit, it is stated that the declaration of a college as a constituent institution under a deemed university requires diligence and the interest of students is not involved and therefore, there is no urgency.
3.2. It is stated that every decision of the Central Government for adding any existing college affiliated to a statutory university within the fold of an institution deemed to be a university as its constituent unit is to ensure that every student enrolled in such college would have to be examined and awarded degree by the affiliating universities and to that effect no objection certificate has to be obtained from the affiliating university, which ensures that the existing colleges do not enroll students unauthorisedly. Admission of students or condonation of such admission in respect of the institution which has not been notified as a constituent unit of deemed university or not affiliated to a statutory university is against the policy of the government, as approved by the Apex Court in TMA Pai Foundation v. State of Karnataka, [2002] 8 SCC 481.
3.3. It is stated that the Regulations, 2010 has come into effect from 21.5.2010 replacing the Guidelines, 2000 and therefore, the Government as well as the University Grants Commission are bound by the said Regulations and hence, the recommendation dated 30.9.2009 received from the University Grants Commission in respect of the proposal of the petitioner was returned by the Government to the University Grants Commission for its advice, in view of the provisions of Section 3 of the UGC Act read with Clause 23 of the Regulations, 2010. According to the first respondent, as per Clause 23 of the Regulations, 2010, the pending proposals are to be governed by the Regulations, 2010.
3.4. It is stated that it is in compliance with the direction in W.A.No.1982 of 2010, the Government has passed the impugned order on 16.11.2010, which clarifies that the petitioner has to apply under the Regulations, 2010 for inclusion of two colleges within its ambit and that was based on the advice of the University Grants Commission dated 9.11.2010.
3.5. It is stated that the case of Symbiosis International University is different and they had applied for approval for starting off-campus centre at Noida and including the centre under the ambit of the institution under the Regulations, 2010 and the inspection of the University Grants Commission was done as per the provisions of the said Regulations. However, the petitioner herein has not made any application under the Regulations, 2010 and therefore, there is no obligation on the part of the respondents to consider their case.
3.6. It is stated that the Review Committee of the Government has categorised the said Symbiosis International University on 6.7.2009 as an institution which needs to take corrective measures to satisfy deemed university status and therefore, the Government has not approved the inclusion of the institution's off-campus centre at Noida and the Apex Court, in the order dated 3.12.2010, has approved Noida campus, subject to the outcome of the writ petition in Viplav Sharma v. Union of India (W.P.(Civil) No.142 of 2006).
3.7. It is also stated that the Government's duty is to maintain the quality of education and the impugned order was with application of mind. All pending applications are considered as per the Regulations, 2010 and when a new regulation comes into force, generally, the applications are to be considered under the said regulation. Mere filing of application under the old regulations does not automatically guarantee its consideration under the old guidelines/regulations, since the petitioner has no vested right. It is also stated that the application filed by the petitioner seeking inclusion of two institutions at Tiruchirapalli under its ambit has been rejected, even though, in the impugned order, it is stated that the petitioner has to apply under the Regulations, 2010.
3.8. It is stated that, in effect, the petitioner wants to challenge the finding of the Committee of the academic experts constituted by the Government to review the functioning of institutions deemed to be universities and that matter is sub judice in Apex Court in Viplav Sharma v. Union of India (W.P.(Civil) No.142 of 2006).
3.9. It is stated that the petitioner's case is covered under Regulation 23 of the Regulations, 2010 and application was still pending and no notification or order was passed by the Central Government and therefore, the petitioner's plea that their application should be considered under the Guidelines, 2000 is untenable. The advice of the University Grants Commission dated 9.11.2010 makes it clear that the petitioner is required to submit fresh application under the Regulations, 2010, rather than Guidelines, 2000.
3.10. It is also denied that Clause 23 of the Regulations, 2010 is contrary to Section 25(3) of the UGC Act, especially when the petitioner has no vested right. All pending applications either before the Government or the University Grants Commission are to be considered under the Regulations, 2010, which is intended to ensure maintenance of academic standards. When the University Grants Commission itself has given advice on 9.11.2010, the petitioner cannot rely upon the earlier recommendation of the University Grants Commission dated 30.9.2009 to insist that its application has to be considered under the Guidelines, 2000.
3.11. It is stated that though the petitioner has applied prior to the coming into force of the Regulations, 2010, in law the request for approval has to be considered as per the new regulations in force, especially in the legal position that approval/sanction has to be considered by applying the rules and regulations prospectively which are in force at the time when grant/sanction is made.
3.12. It is stated that, in any event, the petitioner has been given reasonable opportunity to apply under the Regulations, 2010 to enable the respondents to consider the request of the petitioner, if eligible.
4.1. In the counter affidavit filed by the second respondent/ University Grants Commission, while questioning the maintainability of the writ petition on law and fact, it is stated that on the advice of the second respondent, the Government of India has conferred the status of Deemed University to the petitioner, as per the notification dated 2.8.2002.
4.2. It is stated that the Government, in the letter dated 3.3.2009, has forwarded a proposal received from the petitioner to start off-campus centre at Tiruchirapalli comprising of the SRM College of Engineering and Technology, Irungalur, Tiruchirapalli and Chennai Medical College and Hospital, Irungalur, Tiruchirapalli under its ambit and that was examined by the University Grants Commission administratively as per the University Grants Commission Guidelines of 2004 and an Expert Committee was constituted, which made a spot assessment of infrastructure of the petitioner and other institutions and the Committee, which has visited the off-campus centre on 12th and 13th September, 2009, has submitted a report in the meeting of the second respondent held on 25.5.2009 and the University Grants Commission has resolved to approve the recommendations of the Expert Committee to recommend the Ministry of Human Resources Development for inclusion of the said two institutions under the ambit of SRM Institute of Science and Technology, which is a deemed to be university, and that was forwarded to the first respondent on 30.9.2009.
4.3. Based on the recommendation of the University Grants Commission, the first respondent has informed the petitioner to the effect that since there was a review of deemed universities, the Government has decided to keep all applications and their process pending and also stated that the Regulations, 2010 is also under consideration of the Government. It was also stated that the Regulations, 2010 came into force from 21.5.2010 and as per Clause 23 of the Regulations, inasmuch as the application of the petitioner for starting off-campus centre is still pending, the same has to be considered as per the Regulations, 2010.
4.4. The writ petition filed by the petitioner in W.P.No.10952 of 2010 for a direction to consider the proposal for sanction for starting off-campus institutions was allowed on 15.6.2010 directing the first respondent to grant approval/sanction and that was challenged by the respondents in W.A.No.1982 of 2010 and the Division Bench has modified the order to the effect that the first respondent shall consider the case of the petitioner for grant of approval and pass orders.
4.5. In the meantime, since the Regulations, 2010 has come into force, the second respondent had to reconsider the recommendation dated 30.9.2009, based on the communication of the first respondent dated 14.12.2009. It was in those circumstances, it is stated that the University Grants Commission, while referring to the letter of the Government dated 6.7.2010 and based on the decision taken by it on 27.9.2010, has informed the first respondent that the decision of the University Grants Commission is also applicable in respect of the proposal of petitioner and the petitioner was informed by the University Grants Commission to apply afresh as per the Regulations, 2010, if eligible.
4.6. It is also stated that the Regulations, 2010 in force and also the prior guidelines have prescribed the procedure in processing the applications for approval. It is stated that even though the petitioner has applied prior to the coming into force of the Regulations, 2010, in law the request of the petitioner has to be considered only under the new regulations and the petitioner has no vested right.
5.1. It is the contention of Dr.Rajeev Dhavan, learned Senior Counsel appearing for the petitioner that when admittedly the University Grants Commission, which is the authority under the UGC Act, has taken a decision to recommend the recognition of off-campus units on 30.9.2009, it cannot abdicate its discretion to act on the directions of the Union of India, by relying upon the decision of the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851.
5.2. It is his further submission that the first respondent has misdirected itself into the interpretation of the applicability of the Regulations, 2010 on irrelevant grounds.
5.3. It is his submission that Sections 25(3) and 26(3) of the UGC Act confer powers to make Rules and Regulations respectively and specifically provides that such Rules or Regulations made may be given retrospective effect, provided such retrospectivity shall not prejudicially affect the interests of any person to whom such rule or regulation is applicable and therefore, the very protection given to the person to whom such rules or regulations are applicable shows that there is accrued interest.
5.4. He also would correlate that it is consistent with the UGC Act, the Regulations, 2010 have been framed, in which Regulation 1.2 makes it very clear that it is applicable prospectively with a specific word "albeit prospectively" and on the other hand, Regulation 23 of the Regulations, 2010 states that all pending or in process applications before the University Grants Commission or the Central Government are to be considered under the Regulations, 2010 and in order to reconcile the contradiction, according to the learned Senior Counsel, Regulation 1.2 of the Regulations, 2010 must be given overriding effect in consonance with the powers conferred under Sections 25(3) and 26(3) of the UGC Act.
5.5. It is his further submission that the Regulation 23 of the Regulations, 2010 can at the most apply in respect of cases where the Central Government has received fresh application after the Regulations, 2010 has come into existence or in cases of applications received by the University Grants Commission and pending consideration. In the present case, according to the learned Senior Counsel, inasmuch as the University Grants Commission has already taken a decision recommending the proposal of starting off-campus centre of the petitioner for approval to the first respondent, it cannot be stated that anything is pending with the second respondent.
5.6. By taking note of the words employed under Sections 25(3) and 26(3) of the UGC Act, viz., "prejudicially affect the interests of any person", it is the contention of the learned Senior Counsel that the idea of the makers of the Regulations, 2010 is to make the regulations only prospectively. It is further submitted that there is no vested interest, but it is only the concept of prejudice that has to be considered and the concept of prejudice will override if the applications are pending or in process.
5.7. He has also effectively brought to the notice of this Court about the prejudice that would be caused to the petitioner by considering its application under the Regulations, 2010, by stating that the petitioner has spent a very huge amount of Rs.300 Crores; that as per the Tandon Committee report the petitioner is grouped under Category 'B', which requires to be improved in three years time; that the University Grants Commission has already inspected on 12th and 13th September, 2009; that the colleges are already functioning under the affiliation of the Tamil Nadu Dr.MGR University (Medical) and Anna University (Technical); and that as per the Regulations, 2010, the requirement of National Accreditation and Assessment Council (NAAC) accreditation will only make the petitioner to wait for long time, which would be more prejudicial to the petitioner monetarily and otherwise.
5.8. He would also submit that by applying Section 6 of the General Clauses Act, 1897 regarding the effect of repeal, the right, privilege, obligation or liability under the enactment repealed shall not be affected. In this regard, he would rely upon the decisions in Gurucharan Singh Baldev Singh v. Yashwant Singh, [1992] 1 SCC 428 and CIT v. Shah Sadiq and Sons, [1987] 3 SCC 516.
5.9. By relying upon the judgment in Col. A.S.Iyer v. V.Balasubramanyam, AIR 1980 SC 452, he would contend that what is contemplated under Article 14 of the Constitution of India is not just classification, and it will apply in cases of individual discrimination.
5.10. He also distinguished the various precedents relied upon by the respondents.
6.1. Per contra, it the submission of Mr.M.Ravindran, learned Additional Solicitor General appearing for the first respondent that inasmuch as the deemed to be university status of the petitioner itself is subject to the decision of the Supreme Court and the petitioner has to comply with the requirements within a specified time, the petitioner has no vested right.
6.2.It is his submission that as the Government of India has not taken any decision regarding the proposal submitted by the petitioner and the University Grants Commission itself has reconsidered its recommendation and subsequently recommended that the Regulations, 2010 has to be applied, the petitioner, as a matter of right, cannot compel that in its case the old guidelines have to be applied.
6.3. It is his submission that the impugned order itself has been passed in accordance with law pursuant to the direction given by the Division Bench in W.A.No.1982 of 2010, by modifying the order of the learned Single Judge and directing only to consider the application of the petitioner for approval/sanction.
6.4. It is his submission that as far as the proposal of the petitioner for starting off-campus centre in Tiruchirapalli is concerned, no final order has been passed and therefore, it should be deemed to be a pending application and by virtue of the provisions of the Regulations, 2010, for the pending applications, the new Regulations have to be applied and to substantiate this contention, he would rely upon the judgment in NMDC v. Tanvi Trading and Credit (P) Ltd., [2008] 8 SCC 765.
7.1. Mr.R.Thiagarajan, learned Senior Counsel appearing for the second respondent would vehemently submit that the very conduct of the petitioner/institution in admitting students in spite of the specific direction not to admit makes it clear that the petitioner is not interested in cooperating with the respondents for the purpose of maintaining the standards.
7.2. It is his submission that even though the petitioner has made application in respect of the proposal in the year 2007, when the Regulations, 2010 have not come into existence, no final order has been passed till the Regulations, 2010 have come into force and after the new regulations have come into existence, as per the provisions of the Regulations, 2010, it is only the new regulations that has to be followed and therefore, it is not as if everything regarding the petitioner's proposal has been decided.
7.3. It is his submission that Regulation 1.2 of the Regulations, 2010 applies only to the new applications, whereas Regulation 23 of the Regulations, 2010 applies to the existing and pending applications and therefore, according to him, there is no conflict between Regulation 1.2 and Regulation 23 of the Regulations, 2010. To substantiate his contention, he would rely upon the decision in Sultana Begum v. Prem Chand Jain, [1997] 1 SCC 373, where two provisions of the Code of Civil Procedure, viz., Section 47 and Order 21 Rules 2 and 3, were considered by the Supreme Court.
7.4. It is his submission that while what was existing in the years 2000 and 2004 were only guidelines, which were procedural in nature, it was only in 2010, the regulations in full-fledged form have been created and these procedures do not vest any right on the petitioner.
7.5. He would rely upon the decision in State of Tamil Nadu v. Hind Stone, AIR 1981 SC 711 to the effect that the final order having not been passed, there is no right.
7.6. He would rely upon the decisions in State of M.P. v. Krishnadas Tikaram, 1995 Supp (1) SCC 587, S.B.International Ltd. v. Assistant Director General of Foreign Trade, [1996] 2 SCC 439, Divisional Forest Officer v. S.Nageswaramma, [1996] 6 SCC 442, and Gajraj Singh and others v. State Transport Appellate Tribunal and others, [1997] 1 SCC 650 to submit that the right of renewal has to be considered based on the position which is in existence at the time of consideration.
7.7. It is his submission that till the Apex Court decides about the deemed to be status of the universities, the petitioner is not entitled to any relief claimed and even as per the impugned order, it is not as if the petitioner's right has been shut down and the petitioner has been empowered to apply under the Regulations, 2010.
7.8. It is his further submission that what was effected by the University Grants Commission under the old regulations is only a recommendation and that has not reached finality and that does not give any power to the petitioner to admit students and the petitioner having made admissions illegally cannot ask for exercise of the discretionary power of this Court under Article 226 of the Constitution of India. To buttress this argument, he would rely upon the decisions in A.P. State Financial Corporation v. Gar Re-Rolling Mills, [1994] 2 SCC 647, M.C.Mehta v. Union of India, [2004] 6 SCC 588, University of Madras v. Loordhu Ammal Educational Trust, [2005] 3 MLJ 350, and Rukmani College of Education v. State of Tamil Nadu, [2008] 1 MLJ 1217.
8. I have heard the learned Senior Counsel for the petitioner, the learned Additional Solicitor General for the first respondent and the learned Senior Counsel for the second respondent, referred to the various documents and judgments referred to, and given by anxious thought to the issue involved in this case.
9. Before adverting to the seminal issues, it is necessary to refer to some of the accepted issues which are relevant for the purpose of this case.
10. The Government of India, as per the powers conferred under Section 3 of the UGC Act, which is as follows:
"Section 3. Application of Act to institutions for higher studies other than Universities: The Central Government may, on the advice of the Commission, declare by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of section 2.", by a notification dated 2.8.2002, has declared the SRM Institute of Science and Technology, Chennai, Tamil Nadu as a "Deemed to be University".
11. The Government has made review of the institutions deemed to be universities on 4.6.2009, by which three categories have been enumerated, namely the first category which conforms to the standard sought to be reviewed; the second category consisting of institutions which are found to be deficient, which need to be rectified in a period of three years to transit them into the first category; and the third category which were on review found to be not suitable to continue.
12. The matter relating to the review of the deemed to be universities is pending in the Apex Court in Viplav Sharma v. Union of India (W.P.(Civil) No.142 of 2006) and there has been some interim direction given in respect of some of the institutions. Admittedly, the petitioner/University has been categorised under the second category, which is to rectify the deficiencies over a period of three years in order to enable it to go to the first category. Therefore, subject to the above condition, the deemed to be university status of the petitioner continues.
13. The term "University" has been defined under Section 2(f) of the UGC Act as one established under a Central or State Act, including any institution which may be recognized by the Commission in accordance with the Regulations. Section 2(f) of the UGC Act is as follows:
"Section 2(f): University means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognised by the Commission in accordance with the regulations made in this behalf under this Act."
14. The petitioner (deemed to be university) has applied to the Union of India on 28.8.2007 along with the feasibility project report for grant of permission to establish a new Medical College and Teaching Hospital, namely Chennai Medical College Hospital at Irungalur Village, Manachanallur Taluk, Tiruchirapalli District, apart from furnishing various other documents, including the required demand draft, copies of trust deeds, balance sheet and accounts, particulars regarding lands, consent of SRM University to bring the proposed college within its ambit, etc.
15. The petitioner has also sent a proposal to the University Grants Commission on 12.1.2008 requesting to grant permission to start Medical, Dental, Engineering, Para-medical, Hotel Management and Catering Technology, and Science and Humanities courses in the proposed new campus at Irungalur.
16. Since no objection certificate is required by statutory bodies like Medical Council of India, Dental Council of India, Pharmacy Council of India, etc., for issuing necessary approval, the petitioner has written to the second respondent on 22.1.2008 for issuance of a no objection certificate for starting the off-campus units.
17. The University Grants Commission, in its communication dated 13.2.2008, has granted no objection certificate to the proposed off-campus centre at Tiruchirapalli under the ambit of SRM Deemed University, subject to the following conditions:
"1. The institutes/courses are recognised 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."
18. It appears that enclosing the no objection issued by the University Grants Commission, the petitioner has applied to the Medical Council of India for approval and the Executive Committee of the Medical Council of India in the meeting held on 30.12.2008 has decided to return the application to the Government of India and accordingly, the Medical Council of India returned the application of the petitioner to the Government on 31.12.2008, indicating the following decision of the Medical Council of India:
"The members of the Adhoc Committee appointed by the Hon'ble Supreme Court and of the Executive Committee of the Council observed that the institute does not have a valid Consent of affiliated from an affiliating university as required under Qualifying Criteria 2(4) of the Establishment of Medical College Regulations, 1999. It also has not yet submitted the permission of the Central Government to bring the proposed medical college under the ambit of SRM University, Chennai (a Deemed University).
In view of the above, the members of the Adhoc Committee appointed by the Hon'ble Supreme Court and of the Executive Committee of the Council decided to return the application to the Central Government recommending disapproval of the scheme for establishment of new medical college at Tiruchirapalli, Tamil Nadu by SRM University, Chennai, Tamil Nadu as it does not have consent of affiliation from an affiliating university as required under Qualifying Criteria 2(4) of the Establishment of Medical College Regulations, 1999."
19. By letter dated 10.2.2009, the Government of India, in its turn, has enclosed the said letter of the Medical Council of India dated 31.12.2008 to the petitioner, requesting the petitioner to offer its comments about the observations made by the Medical Council of India to the effect that the institute does not have valid consent of affiliation from an affiliating university as required under the Establishment of Medical College Regulations, 1999 and therefore, the Government of India has to disapprove the scheme for establishment of new medical college.
20. In the meantime, the proposal sent by the petitioner on 16.1.2009 for opening the off-campus centre in the prescribed form was forwarded by the Government of India in its letter dated 3.3.2009 to the University Grants Commission, directing the University Grants Commission to examine the proposal on merits by following the due procedure, with certain observations relating to the nature of the application, ultimately stating as follows:
"4. The observations indicated in para 1 above are only illustrative and may not provide a clear picture of the proposal in question. Therefore, UGC may ensure that all the relevant facts and aspects as are applicable to such cases are examined before comments/advice of the Commission are furnished to the Ministry."
21. In the meantime, the petitioner obtained a "Letter of Consent of Affiliation" from the Tamil Nadu Dr.M.G.R. Medical University, Chennai dated 25.5.2009, considering it as its affiliating university. The relevant portion of the letter of the Registrar of the Tamil Nadu Dr.M.G.R. Medical University, Chennai is as follows:
"2. Hence, I am enclosing herewith "Letter of Consent of Affiliation" in Form No:3 as prescribed by the Medical Council of India for establishing a new Medical College in the name and style "Chennai Medical College Hospital and Research Centre", Irungalur, Mannachanallur Taluk, Trichy with an intake of 150 seats in I MBBS Degree Course.
3. The Managing Trustee, S.R.M. Institute of Science and Technology, Chennai is informed that their proposed new Medical College should not be started and also prospectus for the said course should not be published in any form by the Trust, till the Government of India grants its final approval and this University grants provisional affiliation for the establishment of a new Medical College at Irungalur, Mannachanallur Taluk, Trichy.
4. Further, it is also informed that the "Letter of Consent of Affiliation" issued to the Trust does not confer any right on the Managing Trustee, S.R.M.Institute of Science and Technology, Chennai to admit students in their proposed new Medical College till the approval of the Government of India and Provisional Affiliation of this University are granted, and that this letter is issued only for a specific purpose of enabling the Trust to apply to the Government of India for their approval."
22. The Medical Council of India, in its communication dated 13.3.2009 addressed to the petitioner, on finding that the University Grants Commission has not given final approval for inclusion of the college under the ambit of the SRM University, has directed the petitioner to produce the copy of final approval or notification issued by the University Grants Commission or Ministry of Human Resource Development with the operative portion, which is as follows:
"Therefore, you are requested to send the copy of the final approval/ notification issued by the UGC/Ministry of Human Resource Development for inclusion of the said college under the ambit of the SRM University (Deemed University), immediately, for further consideration in the matter."
23. When the letter of consent of affiliation of the Tamil Nadu Dr.M.G.R. Medical University dated 25.5.2009 was communicated to the first respondent, the first respondent, in its communication dated 1.6.2009 addressed to the Medical Council of India, directed it to take necessary action. Thereafter, the Medical Council of India has conducted inspection of the off-campus centre at Tiruchirapalli on 5th and 6th June, 2009 and as per the power conferred under Section 10A of the Indian Medical Council Act, 1956, in the letter addressed to the first respondent dated 9.7.2009, has recommended the Central Government to issue letter of permission to the petitioner for establishment of new Medical College at Tiruchirapalli with an annual intake of 150 MBBS students for the academic session 2009-2010, by enclosing the resolution of the Medical Council of India, which is in the following terms:
"The Executive Committee of the Council considered the compliance verification inspection report (1st July, 2009) along with the Council Inspectors report (5th & 6th June, 2009) and decided to recommend to the Central Govt. to issue Letter of Permission for establishment of New Medical College at Triuchirapallai, Tamil Nadu by SRM University, Chennai, Tamil Nadu with an annual intake of 150 (One Hundred Fifty) MBBS Students for the academic session 2009-10 u/s 10A of the IMC Act, 1956."
24. Thereafter, the first respondent has issued permission to the petitioner, by way of letter of intent, to establish a new medical college, as it is seen in the letter dated 13.7.2009, of course subject to the fulfillment of certain conditions, stating that thereafter action will be initiated to grant formal permission of the Central Government for starting of medical college at Chennai by the petitioner/University. The operative portion of the said letter is as follows:
"2. After careful consideration of the scheme and taking into consideration the recommendations of Medical Council of India in this regard, the Ministry have come to a conclusion that the Letter of Intent for establishment of a new medical college at Tiruchirapalli, Tamil Nadu in the name and style mentioned above by your University with an annual intake of 150 (One Hundred and Fifty only) students with prospective effect under Section 10(A) of IMC Act may be issued.
Hence this letter of Intent.
3. This letter of intent is subject to the fulfillment of the following conditions:-
(i) The applicant should provide all infrastructural facilities in terms of teaching and non-teaching staff, buildings, equipments and hospital facilities as per Medical Council of India norms.
(ii) Other deficiencies pointed out in the inspection report should be rectified. A copy of inspection report is enclosed.
(iii) No student should be admitted in the above college till the formal permission of Central Govt. is granted.
(iv) The applicant should provide a Bank Guarantee of Rs.9.50 crores (Rupees 2.00 Crores towards medical college and 7.50 crores towards hospital facilities) valid for five years from a Nationalized/Scheduled Bank as per the norms of the Medical Council of India.
4. Action to grant formal permission of the Central Govt. for starting of a new medical college at Chennai, Tamil Nadu by your University will be initiated on receipt of a compliance letter fulfilling the conditions enumerated in the paragraph 3 above."
25. By a subsequent letter dated 14.7.2009, the Government of India issued a letter of permission, granting approval of the Government for establishment of new medical college with annual intake of 150 students from the academic year 2009-2010 as per Section 10A of the Indian Medical of Council Act, 1956. It is relevant to extract the said letter, 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 grnated 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."
26. There appears to have been some confusion in the two letters of the Government of India dated 13.7.2009 and 14.7.2009, in the sense that instead of sending the copies of the said letters to the Registrar, The Tamil Nadu Dr.MGR Medical University, Chennai, Tamil Nadu, the copies have been marked to the Registrar, Vice Chancellor, SRM University, Chennai, Tamil Nadu. Therefore, the Government of India has issued a corrigendum on 30.7.2009 correcting the mistake stating that the copy has to be marked to the Tamil Nadu Dr.MGR Medical University, Chennai, Tamil Nadu.
27. In the meantime, the University Grants Commission, based on the application, has conducted inspection through its experts, who have given the following recommendations:
"Based on the spot assessment of the infrastructural and other facilities of SRM College of Engineering and Technology, Irungalur, Trichy and Chennai Medical College and Hospital, Irungalur, Trichy discussions with the Chancellor, Vice Chancellor, Deans, Head of Departments & Faculty and also keeping in view the observations, the Committee observed that both the above colleges fulfill the parameters laid down by the UGC.
The Expert Committee recommends that (1) SRM College of Engineering and Technology, Irungalur, Trichy, Tamilnadu (2) Chennai Medical College and Hospital, Irungalur, Trichy, Tamilnadu be brought under the ambit of SRM Institute of Science and Technology (Deemed to be University), Chennai, Tamil Nadu.
The overall performance of both the Institutions may be reviewed annually, for a period of 3 years and subsequently every 5 years by the UGC."
28. Based on the said recommendation, the University Grants Commission has passed resolution on 25.9.2009 recommending the Government for inclusion of the said off-campus institutions, viz., SRM Institute of Science and Technology, Irungalur, Trichy and Chennai Medical College and Hospital, Irungalur, Trichy, under the ambit of SRM Institute of Science and Technology, Deemed to be University, Chennai, Tamil Nadu. The University Grants Commission has communicated the said resolution to the Government by letter dated 30.9.2009, enclosing the resolution of the University Grants Commission as extracted in the said letter, which is as follows:
"The Commission approved the recommendations of the expert committee to recommend to the Ministry of HRD for inclusion of SRM Institute of Science and Technology, Irungalur, Trichy and Chennai Medical College and Hospital, Irungalur, Trichy under the ambit of SRM Institute of Science and Technology, Deemed to be University, Chennai, Tamilnadu.
Both the institutions will be reviewed annually for a period of three years and subsequently, every five years by the UGC."
29. Under the Guidelines for considering proposals for declaring an institution as deemed to be university under Section 3 of the UGC Act framed by the University Grants Commission, which was in existence before the Regulations, 2010 has come into force, Clause 15 enables the deemed university to open centres in its own area or in places other than its headquarters, subject to certain parameters. It is relevant to extract Clause 15 of the Guidelines, which is 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."
Accordingly, it is the University Grants Commission which has to grant approval, apart from the State Government concerned, if the centre is proposed to be opened in the State, and the Government of India, if the centre is proposed to be opened in a foreign country.
30. It is true that after the University Grants Commission has sent its recommendations to the first respondent for inclusion of the two off-campus institutions under the ambit of the petitioner, deemed to be university, the Government of India has not passed any orders. Of course, it was at this stage, the University Grants Commission started deliberation for framing the new regulations and the Regulations, 2010 has come into existence with effect from 21.5.2010, the date on which the said regulation was notified.
31. The basic question to be considered in the above said factual background, which is undisputed, is as to whether the application made by the petitioner on 28.8.2007 is deemed to be a pending one or it has to be treated as finally disposed, in order to decide whether the Guidelines of 2000 or the Regulations, 2010 is to be applied to the facts of the present case.
32. Under the Regulations, 2010, the method for obtaining approval of new off-campus centres and qualification required for such centres have been totally changed with elaborate procedure, which was not available under the earlier guidelines. To appreciate the lengthy procedure required and also various conditions stipulated for the purpose of permitting a deemed to be university to open off-campus centre, it is relevant to extract Clause 12 of the Regulations, 2010, which is as follows:
"12.0. New Departments, Off-Campus Centres and Off-Shore Campuses:
12.01. An institution deemed to be university shall normally operate within its own main Campus as is declared by the Central Government in the notification and conduct approved programmes of study falling within the area of its specialization.
12.02. If an institution deemed to be university wishes to start a new Department dealing with a subject which is not in the field of its specialization or in an allied field, it may do so only if that field is covered under the objectives for which the institution deemed to be university was established, and with the prior approval of the Commission.
12.03. An institution deemed to be university may be allowed to operate beyond its approved geographical boundaries and start Off-Campus(es) / Off-Shore Campus(es) under the following conditions:
12.03.1. It has been in existence as an institution deemed to be university for a minimum period of three years;
12.03.2. It has been conducting post-graduate programmes and research;
12.03.3. It has earned a reputation for excellent and innovative teaching, which, inter alia, includes practicing academic and examination reforms like introducing modular structure, continuous internal evaluation, etc. and for meaningful and purposeful research and extension activities;
12.03.4. It has a good track record of conforming to the relevant Regulations/norms of the Commission and other Statutory/Regulatory bodies regarding minimum standards of instruction, qualification of faculty, merit-based admission of students on an all India basis and reasonable fee structure;
12.03.5. It has obtained prior approval of the Statutory/Regulatory body to start the new department/programme, wherever applicable, and undertakes to comply with all the requirements of the said body;
12.03.6. It has a currently valid accreditation from National Accreditation and Assessment Council (NAAC) with the highest grade offered;
12.03.7. It has adequate financial resources for starting the proposed new department/off-Campus Centre/off-shore Campus;
12.03.8. It has not entered into any franchise agreement, either overtly or covertly, with any other organization for establishing and running the off-Campus Centre/off-shore Campus of the institution deemed to be university.
12.04. A new Department in the Campus or in the approved off-Campus Centre shall be established by an institution deemed to be university only with the prior approval of the Commission.
12.05. An off-Campus Centre shall be established by an institution deemed to be university with the prior approval of the Central Government, on the recommendation of the Commission. The Central Government shall also consider the view of the State/UT Government concerned where the off-Campus Centre is proposed to be established.
12.06. An off-shore Campus of an institution deemed to be university shall be established with the prior permission of the Central Government, on the recommendation of the Commission:
Provided that the country, where such off-shore Campus is proposed to be established, requires grant of approval by it for such establishment, then the application to the Central Government for permission shall be made along with the approval granted by that country:
Provided further that if the country where such off-shore Campus is proposed to be established requires prior concurrence of the Government of India for the approval, referred to in the first proviso, of that country to be granted, then the Central Government, on the recommendation of the University Grants Commission, may give a 'No Objection' to the proposal but such 'No Objection' shall not be construed as permission of the Central Government to the institution deemed to be university to establish an off-shore Campus. Such an institution deemed to be university shall also submit an undertaking that it shall comply with all laws, norms or standards prescribed by that country where the off-shore Campus is proposed to be established.
12.07. An institution deemed to be university intending to start a new off-Campus Centre/off-shore Campus shall apply to the Government of India in the prescribed proforma at least six months prior to the proposed date of starting the Centre/off-shore Campus. The Government of India shall forward the proposal to the Commission for its advice. In case of establishment of a new Department in the Campus or an approved off-Campus Centre, the application in the prescribed format shall be sent directly to the Commission.
12.08. The Commission shall cause to be undertaken a spot visit/verification of the proposed off-Campus(es) and off-shore Campus(es) to verify the infrastructure facilities, programmes, faculty, financial viability, etc. before sending its advice to the Central Government. In case of a proposal for establishment of a new Department, the Commission shall arrive at a decision after the spot visit.
12.09. In case such permission is not granted, the institution deemed to be university may re-apply for such permission, but not before two years from the date of rejection of its earlier application.
12.10. The off-Campus Centre/off-shore Campus shall have adequate academic and physical infrastructure facilities as per the norms and standards prescribed by the Commission and the Statutory/Regulatory body concerned. Such facilities shall be proportionate to the size and activities of the off-Campus Centre / off-shore Campus. The off-shore Campus of the institution deemed to be university shall also comply with all norms and standards of the country in which it is established.
12.11. The off-Campus Centre/off-shore Campus shall be directly administered by the parent institution deemed to be university in matters of admission, instruction, evaluation, conferring of degrees, etc. In case of the off-shore Campus, lease in the name of the institution deemed to be university may be acceptable (as per the procedure of the country in which such off-shore campus is proposed to be established). In case lease is not permissible in any particular country, land and other assets in the name of a Strategic Partner shall be accepted. For this, the institution deemed to be university shall have a duly registered MOU/collaboration with the Strategic Partner which shall be governed in accordance with the law for the time being in force, in India.
12.12. The new Department/off-Campus Centre/off-shore Campus shall offer only those programmes of study which are approved by the appropriate bodies of the institution deemed to be university and the statutory/regulatory body concerned such as All India Council for Technical Education (AICTE), Medical Council of India (Medical Council of India), Dental Council of India (DCI), Pharmacy Council of India (PCI), National Council for Teachers Education (NCTE), Bar Council of India (BCI), Indian Nursing Council (INC), etc. wherever applicable. In case of any new or existing institution of higher learning proposed to be brought under the ambit as a constituent unit of any existing institution deemed to be university, only those students who were admitted in such institutions on a date subsequent to the date of notification of the declaration under Section 3 of the UGC Act 1956 in regard to brining the institution under the ambit of the existing institution deemed to be university, shall be eligible for being examined by the institution deemed to be university and therefore, for the award of degree or any other qualification by the institution deemed to be university on successful completion of their respective courses or programmes of study.
12.13. In the case of an off-shore Campus, the remittances of funds from/to the main Campus shall be governed by the Reserve Bank of India rules.
12.14. The over-all performance of an off-Campus Centre/ off-shore Campus shall be monitored by the Commission biennially for six years and subsequently after five years and whose directions on management, academic development and improvement shall be binding on the Campus.
12.15. If the functioning of the Campus/off-Campus Centre of an institution deemed to be university does not meet the standards stipulated by the Commission and remains unsatisfactory for two consecutive reviews, as assessed by the Commission, the institution deemed to be university may be instructed by the Central Government, on the advice of the Commission, to close down the off-Campus Centre/Campus concerned. The Commission may initiate action against erring institutions deemed to be universities even on the basis of complaints received against such Centres/Campuses. In the interest of the students, the Commission may allow the Centre/Campus to function till the last batch of students enrolled therein as on the date of such instruction, passes out. The institution deemed to be university shall take appropriate steps to safeguard the interests of the faculty/staff at the Centre/Campus. In the event of closure of the Centre/Campus, the assets and liabilities thereof shall revert to the institution deemed to be university.
12.16. The Commission may give an 'in-principle No Objection' to the institution deemed to be university for establishing an off-Campus Centre, wherever required by the Statutory Councils, if the Commission is so satisfied about the viability of the proposal; but such 'No Objection' shall not be construed as permission of the Commission to the institution deemed to be university to establish an off-Campus Centre. In all such cases, formal proposal(s) shall be examined by the Commission under these Regulations. The institution deemed to be universities shall not admit student(s) to its course(s) in such off-Campus Centre(s) before the permission is granted by the Commission to such proposal(s).
33. Therefore, the stringent conditions are that the deemed to be university must have been in existence for a minimum period of three years; there must be a valid accreditation from the National Accreditation and Assessment Council with the highest grade offered; and the deemed to be university intending to start a new off-campus centre has to apply to the Government of India in the prescribed proforma, which will be sent to the University Grants Commission for the purpose of causing spot visit and verification and its advice would be sent to the Central Government and the University Grants Commission is to give permission thereafter.
34. On the factual matrix that elaborate procedure is contemplated under the Regulations, 2010 for starting off-campus centre in the deemed to be university and in the circumstance that the petitioner's application was made in the year 2007 under the earlier Guidelines, 2000, the plea raised by the petitioner is one of prejudice that is sought to be caused to the petitioner by applying the Regulations, 2010.
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.
42. It may be a case where after receiving the proposal from an institution, the University Grants Commission has appointed its Expert Committee and the Committee's report either has not been received or after receiving the Committee's report, the University Grants Commission had no occasion to decide by passing resolution and if the process was pending at that stage, the same has to be construed as pending/in process in the Commission, in which event, by virtue of the advent of the Regulations, 2010, the new Regulation has to be applied, which means that thereafter the University Grants Commission cannot consider such expert's report by way of resolution based on the earlier Guidelines.
43. As far as the receipt of the Central Government is concerned, even under the earlier Guidelines, the applications were made to the Central Government and in fact, the Government of India, after considering the report of the Medical Council of India as per the powers conferred under Section 10-A of the Indian Medical Council Act, 1956, has already come to a conclusion in permitting the petitioner to establish a new medical college at Tiruchirapalli with the annual intake of 150 students, by way of a letter of intent and letter of permission dated 13.7.2009 and 14.7.2009 respectively and therefore, except passing a formal order by the Central Government based on the final recommendations of the University Grants Commission, it does not require any further probe on the proposal sent by the institution.
44. In this regard, the reliance placed by the learned Additional Solicitor General on the decision in NMDC v. Tanvi Trading and Credit (P) Ltd., [2008] 8 SCC 765 is, in my considered view, misconceived. That was a case relating to the Delhi Development Authority to sanction the building plans and as per the Delhi Development Act, 1957, the approval of Central Government for zonal development plans as per Sections 9 and 11 of the Delhi Development Act, 1957 was held to be a statutory sanction and mandatory, and it was in that context held that simply the filing of an application for sanction of plan will not be the date of effect of approval, unless the Central Government exercising its statutory function has approved the zonal development plans and therefore, there was no question of deemed sanction under the provisions of the Delhi Development Act. In that scenario, the Supreme Court has held as follows:
"38. The finding recorded by the High Court that the plans submitted by the respondents must be deemed to have been sanctioned under the provisions of the NDMC Act is misplaced and against the weight of evidence on record. It is relevant to notice that what was challenged in the petition filed before the High Court of Delhi was order dated 1-12-1999 passed by the Lt. Governor upholding order of remand made by the Appellate Tribunal. During the pendency of the petition, the High Court had, by interim order dated 31-7-2000, directed the Chairman, NDMC to consider the question of grant of sanction of the plan originally submitted. The Chairman, NDMC, in compliance with the said direction considered the plan originally submitted and refused to grant sanction by order dated 13-11-2000 holding that the plan was contrary to the guidelines dated 8-2-1988 relating to LBZ. Under the circumstances, the respondents were not entitled to a declaration that the plan submitted by them was deemed to have been approved, under the provisions of the NDMC Act.
39. It is well settled that the law for approval of the building plan would be the date on which the approval is granted and not the date on which the plans are submitted. This is so in view of para 24 of the decision of this Court in Usman Gani J. Khatri v. Cantonment Board, [1992] 3 SCC 455. It would not be out of place to mention that on 7-2-2007, the Master Plan, 2021 has been approved in which the LBZ guidelines have been incorporated and since the plan submitted by the respondents was not approved up to the date of coming into force of Master Plan of 2021, the LBZ guidelines will apply with full force to the plan submitted by the respondents and the plan which is contrary to the LBZ guidelines could not have been directed to be sanctioned."
45. Again, the reliance placed by Mr.R.Thiagarajan, learned Senior Counsel appearing for the second respondent upon the decision in State of Tamil Nadu v. Hind Stone, AIR 1981 SC 711 : [1981] 2 SCC 205 relates to the application for renewal of lease made under Rule 8-C of the Tamil Nadu Minor Mineral Concession Rules, 1959 and when such rule was challenged and an issue was raised that the application for renewal should be considered within reasonable time and non consideration by the authority cannot deprive the right of the applicant, while upholding the validity of the said rule and construing the power of the State Government in granting lease under Rule 8-C, it was held that on account of the Government not passing order within reasonable time, it cannot be presumed that such extension has been granted, since there is no vested right. The relevant portion of the said judgment is as follows:
"13. Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of GOMs No. 1312 (December 2, 1977) should be dealt with as if Rule 8-C had not come into force. It was also contended that even applications for grant of leases made long before the date of GOMs No. 1312 should be dealt with as if Rule 8-C had not come into force. The submission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of GOMs No. 1312 should be dealt with as if Rule 8-C did not exist."
The facts of the present case are totally different, in the sense that the statutory authority, viz., the University Grants Commission, has already taken a decision.
46. The decision in State of M.P. v. Krishnadas Tikaram, 1995 Supp (1) SCC 587 relates to the Forest (Conservation) Act, 1980, wherein under Section 2, while dealing with the renewal of mining lease, in the event of the State Government deciding to grant the same, it was to be done with the prior approval of the Central Government. While holding that such renewal will amount to a fresh grant, the Supreme Court has observed as follows:
"2. The appellant contends that this Court in Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1988 SC 2187 and Ambica Quarry Works v. State of Gujarat, AIR 1987 SC 1073 had held that even the renewal of the lease cannot be granted without the prior concurrence of the Central Government. We find force in the contention. It is settled law that the grant or renewal is a fresh grant and must be made consistent with law. Section 2 prohibited the grant or renewal. In case the State Government decides to grant fresh lease or renewal of the lease it is mandatory that it should obtain prior approval of the Central Government. Admittedly, no prior approval of the Central Government had been obtained under Section 2 of the Act. The State Government thus had realised the mistake in directing renewal when the Forest Department had objected to the renewal of the lease in favour of the respondent. Therefore, the cancellation of the order, before it came into effect by registering, had been properly made by the appellant. The High Court was, therefore, not right in directing grant of renewal of the lease."
and the said proposition is not applicable to the facts of the present case.
47. Even in Divisional Forest Officer v. S.Nageswaramma, [1996] 6 SCC 442 relied upon by the learned Senior Counsel for the second respondent, the same issue was decided by the Apex Court by referring to Section 2 of the Forest (Conservation) Act, 1980.
48. The learned Senior Counsel for the second respondent placed reliance on the judgment in S.B.International Ltd. v. Assistant Director General of Foreign Trade, [1996] 2 SCC 439. The said case relates to the issuance of licence for import and export of raw materials, etc. under a duty exemption scheme, which is a policy decision of the Government of India. When a question arose as to whether the benefit of the scheme should accrue on the date of application for licence or issuance of licence, holding that there is no vested right to a licensee for issuance of licence from the date of application since it is a policy decision and the grant itself is based on the application of mind, it was observed as follows:
"9. It should be noticed that grant of licence is neither a mechanical exercise nor a formality. On receipt of the application, the authorities have to satisfy themselves about the correctness of the contents of the application. They also have to satisfy themselves that the application satisfies all the requirements of the scheme and the other applicable provisions of law, if any. In a country like ours, where abuse of such facilities is rampant, reasonable time has to be afforded to the authorities to process the application. (What is a reasonable time, of course, depends on the facts of each case. No hard and fast limit can be prescribed.) It is only after appropriate verification that the licence is granted.
10. We are, therefore, of the opinion that the contention that a vested right accrues to an applicant for issuance of advance licence on the basis of the norm obtaining on the date of application is unacceptable. The scheme and the context militate against the contention. The fact that the policy is statutory in nature (delegated legislation) has no relevance on the question at issue. It would be wrong to equate the filing of an application for advance licence with the filing of a suit where it is held that appeal being a substantive right, the right of appeal inhering in the party on the date of filing of the suit cannot be taken away by a subsequent change in law."
The said observations have been made by the Apex Court while considering the question as to whether a vested right has accrued for issuance of advance licence as per the norms existing at the time of filing of the application and whether any subsequent change in policy effected before the issuance of licence is applicable to such licence. The Apex Court has specifically raised the question as follows:
"8. .... For answering this question, one has to look to the policy itself, the material clauses of which have already been set out. The said provisions make it clear that the object behind the Scheme is to enable the exporter to import raw materials, components etc. required for the purpose of producing goods for export. It is a facility provided by the Government an incentive. There is no right to advance licence apart from the policy. No citizen has a fundamental right to import, much less import free of duty."
49. In Gajraj Singh and others v. State Transport Appellate Tribunal and others, [1997] 1 SCC 650, where the stage carriage permit was granted under the Repeal Act, 1939, it was held that the grant of permit under the Motor Vehicles Act, 1988 is a mere privilege and not a vested or accrued right. But in the present case, it is not the privilege granted to the petitioner, but the right conferred under the statutory guidelines which was invoked. Even in the said judgment, the Apex Court has made a fine distinction between the right acquired or accrued, and privilege, hope and expectation to get a right. While dealing with the Repeal Act, 1939, it was significantly observed by the Apex Court as follows:
"42. ...... A right to apply for renewal and to get a favourable order would not be deemed to be a right accrued unless some positive acts are done, before repeal of Act 4 of 1939 or corresponding law to secure that right of renewal."
On the facts of the present case, the application was made based on the provisions of the Guidelines, 2000 framed by the University Grants Commission and based on the same, the University Grants Commission acted as per the statute and has taken a decision, and it is only thereafter, the Regulations, 2010 came into existence.
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.
54. The prejudice that would be caused to the petitioner/institution is apparent on the face of the record when we compare Clause 15 of the Guidelines, 2000 and Clause 12 of the Regulations, 2010, which were elicited above. The Regulations, 2010 not only contemplates lengthy procedure, but also imposes a restriction regarding valid accreditation from National Accreditation and Assessment Council and the deemed to be universities are made to wait for a period of three years for the purpose of making application for off-campus centres, apart from many other requirements, which include the fresh report of Expert Committee and no objection from various authorities, including the consent of affiliation from the University, Medical Council of India and All India Council for Technical Education, etc.
55. As submitted by Dr.Rajeev Dhavan, it is relevant to apply the yardstick and effect of Section 6 of the General Clauses Act, 1897 relating to the effect of repeal. Section 6 of the General Clauses Act, 1897 is as follows:
6. Effect of repeal.- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or any thing duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
Clause (c) to Section 6 of the General Clauses Act, 1897 makes it clear that when a new regulation repeals the earlier regulation, unless a different intention appears, it does not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. This is in consonance with Sections 25(3) and 26(3) of the UGC Act, extracted above. When the object of the Guidelines, 2000 and Regulations, 2010 cannot be said to be contradictory, but only differ procedurally, it has to be held in the context of the provisions of the UGC Act as well as the Regulations, 2010, by harmonious construction and also by applying the theory of prejudice, that the application of the petitioner is entitled to be considered only under the Guidelines, 2000.
56. When a subsequent regulation repeals the earlier regulation, unless there is an express or necessary implication to take away the accrued right under the old regulation, the right accrued under the old regulation is held to be continued. While construing the Income Tax Act, 1922, under which certain rights of carrying forward and set off were given, and the Income Tax Act, 1961, even in the absence of a specific savings clause exhaustively in the repealing statute, by applying Section 6(c) of the General Clauses Act, 1897, the Supreme Court has held as follows:
"14. Under the Income Tax Act of 1922, the assessee was entitled to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years. The right of carrying forward and set off accrued to the assessee under the Act of 1922. A right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or by necessary implication. This is the effect of Section 6 of the General clauses Act, 1897.
15. In this case the savings provision in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued. In other words, whatever rights are expressly saved by the savings provision stand saved. But, that does not mean that rights which are not saved by the savings provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c) of the General clauses Act, 1897. The right to carry forward losses which had accrued under the repealed Income Tax Act of 1922 is not saved expressly by Section 297 of the Income Tax Act, 1961. But, it is not necessary to save a right expressly in order to keep it alive after the repeal of the old Act of 1922. Section 6(c) saves accrued rights unless they are taken away by the repealing statute. We do not find any such taking away of the rights by Section 297 either expressly or by implication."
57. On the facts of the present case, admittedly, the petitioner has complied with all the requirements by obtaining necessary permissions from all the statutory authorities to the satisfaction of both the respondents. In fact, that has only made the Government of India to give the letter of intent and letter of permission and ultimately, the University Grants Commission, by relying upon its Expert Committee report regarding the availability of infrastructural facilities and by exercising its statutory powers, has passed final order of recommendation and that process has to be redone and that itself, in my considered view, under the facts and circumstances of the case would be a great prejudice that would be caused to the petitioner institution. Moreover, the petitioner/institution having been granted permission by the Government, cannot be made to apply once again for the prior approval of the Central Government as per Clause 12.05 of the Regulations, 2010 and that will be certainly prejudicial as per the UGC Act.
58. When admittedly the authority under the UGC Act, namely the University Grants Commission, as per the provisions of the Act and based on the report of its Expert Committee, has taken a decision in accepting the proposal of the petitioner for starting off-campus centre, it cannot go back about its satisfaction in respect of the infrastructural facilities and of course, that is not even their case. This view is fortified by the decision in Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851, wherein regarding the binding nature of such decision and the fact that the authority cannot go back by explaining either by affidavit or otherwise, it was held as follows:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose,J. in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16:
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older."
59. Yet another aspect that is relevant to be considered is relating to the pendency of the issue before the Apex Court in Viplav Sharma v. Union of India (W.P.(Civil) No.142 of 2006). That relates to the review of the functioning of the deemed to be universities all over India "to ascertain whether they are indeed serving the purposes for which they were so declared and whether they are complying with the conditions, if any, mentioned in the notification by the Central Government in each case", as it is seen in the notification of the Ministry of Human Resource Development, Government of India dated 6.7.2009. The Committee comprising of Prof.P.N.Tandon and others in its report has suggested various recommendations, including constitution of the Governing Body of the deemed to be university, like the Board of Management, Executive Council, etc., apart from wide-ranging issues of importance.
60. The Tandon Committee has also categorised deemed universities in three grades, while considering 130 such deemed universities in India in the form of Tables 1, 2 and 3. Out of the same, the category of the deemed universities under Table 1 numbering 38 institutions consisting of 21 public institutions and 17 private institutions were recommended to be "the institutions satisfying most of the criteria for the deemed university". In Table 2 in the second category, the Committee has categorised 44 institutions, including 13 public institutions and 31 private institutions in the caption "institutions that need to take corrective measures to several criteria for satisfying the deemed university status". The SRM Institute of Science and Technology, Chennai, Tamil Nadu, which is the petitioner, is categorised under the said second category. Likewise, the Committee in the third category has categorised 44 institutions, consisting of 3 public institutions and 41 private institutions in the caption "institutions that have failed to satisfy most of the criteria for the deemed university status".
61. The petitioner/institution, having been categorised under the second category, is stated to have been given time for the purpose of rectification of certain deficiencies within the time limit and it is in this regard, the issue relating to the various recommendations of the Committee as well as the review of the deemed to be university status is pending in the Apex Court and it is not in dispute that the petitioner continues to enjoy the status of the deemed to be university and a direction has been given to implement the various suggestions based on the report of the Committee. Pending the same, the proposal for starting off-campus centre under the petitioner deemed to be university was considered by the University Grants Commission, as it is elicited above, with all the recommendations and it is not even the case of the respondents that it is due to the pendency of the issue before the Apex Court, the application for starting off-campus centre could not be considered. Even as per the impugned order of the first respondent, the Government only directs the application to be filed under Regulations, 2010. In any event, either the application for starting the said off-campus centre is considered under the Guidelines, 2000 or Regulations, 2010, any final order that may be passed in respect of the approval is subject to the result of the decision of the Apex Court.
62. In such view of the matter, the reliance placed by the learned Senior Counsel for the second respondent upon the judgment in Chhavi Mehrotra v. Director General, Health Services, 1995 Supp (3) SCC 434 that this Court may not have jurisdiction to entertain the writ petition under Article 226 of the Constitution of India against the impugned order of the first respondent since the issue relating to the deemed to be university status is pending in the Apex Court is not tenable. There is certainly no conflicting interest for exercise of the jurisdiction by this Court in order to maintain judicial discipline. Moreover, what is questioned in this writ petition is the order of the Government of India, which has not even refrained from considering the application of the petitioner by way of proposal on the ground of pendency of the matter in the Apex Court, but only directed the petitioner to apply under Regulations, 2010 and that is the only issue that is involved on the facts of the present case.
63. As far as the contention raised by the learned Senior Counsel for the respondents in respect of the admission of students and as to whether such admissions are proper, it is certainly not an issue before this Court and that is also not the reason stated anywhere in the impugned order of the first respondent dated 16.11.2010.
64. While, on the one hand, it is the contention of the learned Senior Counsel for the petitioner that the admissions have been made as per the directions of the respondents and after affiliation granted by the Tamil Nadu Dr.M.G.R. Medical University, Chennai, on the other hand, it is the case of the respondents, especially the second respondent that there has been specific instruction not to admit students before the approval, but inasmuch as such things are not the issues before this Court, there is absolutely no necessity for this Court to express any opinion on that and that cannot be a ground also for considering the issue involved in this case.
65. For all the reasons enumerated above, I am of the considered view that the impugned order passed by the first respondent is not sustainable in law and the application of the petitioner is entitled to be considered under the guidelines existing at the time of making the application, viz., on 28.8.2007, for starting the off-campus centre.
Resultantly, the writ petition stands allowed and the impugned order of the first respondent stands set aside and the first respondent is directed to consider the proposal of the petitioner dated 28.8.2007 to bring the off-campus centre at Irungalur, Tiruchirapalli under the ambit of the petitioner deemed to be university in the light of the recommendations of the University Grants Commission dated 30.9.2009, by applying the guidelines of the University Grants Commission in existence before the Regulations, 2010 have come into existence and pass appropriate orders on merits and in accordance with law within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P.Nos.1 and 2 of 2011 are closed.
sasi To:
1. The Secretary to Government Ministry of Human Resource Development (Department of Higher Education) Government of India Shastri Bhavan, New Delhi 110 115.
2. The Secretary Bahadur Shah Jafar Marg University Grants Commission New Delhi 110 022