Madras High Court
Srm University vs The Secretary on 30 August, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.16015, 16297, 16298, 16299, 16300, 16301, 16503, 16665, 16910, 17062, 17971, 19624 and 21145 of 2010, 4856, 5190 and 6183 of 2011 and M.P.No.1,1,2,1,2,1,2,1,2,1,2,1,1,2,1,1,1,1,1 and 2 of 2010, 1,21,2,1 and 2 of 2011 SRM University, (Deemed University under Sec.3 of the UGC Act), rep by its Registrar, SRM Nagar, Kattankulathur-603 203 Kancheepuram District, Tamilnadu. .. Petitioner in W.P.No.16015 of 2010 1.Hindustan University, rep by its Registrar, 40, GST Road, ST. Thomas Mount, Chennai-600 016. 2.Anand Jacob Verghese Vide President of Hindustan Institute of Technology & Science, 40, GST Road, ST. Thomas Mount, Chennai-600 016. .. Petitioners in W.P.No.16297 of 2010 1.B.S.Abdur Rahman University (A Deemed to be University), rep by its Registrar, Dr.V.M.Periasamy, Seethakathi Estate, GST Road, Vandalur, Chennai-600 048. 2.Abdul Qadir A.Rahman Buhari, Secretary, B.S.Abdur Rahman Institute of Science of Technology Society, Seethakathi Estate, GST Road, Vandalur, Chennai-600 048. .. Petitioners in W.P.No.16298 of 2010 1.Sathyabama University, rep by its Registrar Dr.S.S.Rau Jeppiaar Nagar, Rajeev Gandhi Road, Chennai-600 119. 2.Dr.J.Jeppiaar, Managing Trustee, Sathyabama Institute of Science & Technology, Jeppiaar Nagar, Rajeev Gandhi Road, Chennai-600 119. .. Petitioners in W.P.No.16299 of 2010 1.St.Peters University, rep by its Registrar, Dr.M.Shanmugam, Avadi, Chennai-600 054 Tamil Nadu 2.Dr.T.Banumathi, Managing Trustee, St. Peter's Institute of Higher Education and Research, Avadi, Chennai-600 054 Tamil Nadu. .. Petitioners in W.P.No.16300 of 2010 1.V.R.Venkataachalam, Managing Trustee, Sri Ramachandra Educational & Health Trust, No.25, Sir CV Raman Road, Chennai-600 018. 2.Sri Ramachandra University (declared u/s 3 of the UGC Act, 1956) rep by its Registrar, No.1,Sri Ramachandra Nagar, Porur, Chennai-600 116. .. Petitioners in W.P.No.16301 of 2010 Tamilnadu Deemed Universities Association, An Association registered under the Societies Registration Act, 1975 (Sl.No.11/2010) rep by its President, Dr.N.M.Veeriayan, having office at No.25,Mahalinga Street, Mahalingapuram, Chennai-600 034. .. Petitioner in W.P.No.16503 of 2010 1.Kalasalingam University, rep by its Registrar, Dr.T.Vasudevan, Anand Nagar, Krishnan Koil-626 190 Virudhunagar District, Tamilnadu. 2.K.Sridharan, Trustee, Kalasalingam Academy of Research and Education, Old No.14, New No.52, Sriman Srinivasa Road Alwarpet, Chennai-600 018. .. Petitioners in W.P.No.16665 of 2010 Meenakshi Academy of Higher Education and Research (Deemed University) rep by its Registrar, Mr.A.N.Santhanam, No.12,Vembuli Amman Koil Street, West K.K.Nagar, Chennai-600 078. .. Petitioner in W.P.No.16910 of 2010 Shanmugha Arts & Science, Technology & Research Academy (SASTRA University), A University under Sec.3 of the UGC Act, having its head quarters at No.5,Subbarayan Nagar Main Road, Kodambakkam, Chennai-24 rep by its Registrar Dr.S.N.Srinivasa .. Petitioner in W.P.No.17062 of 2010 1.Vinayaka Mission's University, rep by its Registrar Sankari Main Road, N.H.47, Ariyanoor, Salem-636 308. 2.A.Shanmuga Sundaram, Managing Trustee, Vinayaka Mission's Research Foundation Trust Sankari Main Road, N.H.47, Ariyanoor, Salem-636 308. .. Petitioners in W.P.No.17971 of 2010 1.Bharat University rep by its Registrar, No.173,Agaram Road, Selaiyur, Chennai-600 073. 2.J.Sandeep Anand, President, Bharat Institute of Higher Education and Research, A society registered under the Societies Registration Act, 1975 (Sl.No.36 of 1995) No.29, Tilak Street, T.Nagar, Chennai-600 017. .. Petitioners in W.P.No.19624 of 2010 1.Dr.N.M.Veeraiyan Managing Trustee, Saveetha Institute of Medical and Technical Sciences (SIMATS) No.162,Poonamallee High Road, Velappanchavadi, Chennai-600 077. 2.Saveetha University, (Declared u/s 3 of the UGC Act, 1956) represented by its Registrar, No.162,Poonamallee High Road, Velappanchavadi, Chennai-600 077. .. Petitioners in W.P.No.21145 of 2010 VIT University, rep by its Registrar, Mr.T.S.Thiagarajan, Gayathri Apartments, No.2,First West Cross Street, Gandhi Nagar West, Vellore-632 006 .. Petitioner in W.P.No.4856 of 2011 Vel Tech Rangarajan Dr.Sagunthala R&D Institute of Science & Technology, (Deemed to be University) rep by its Registrar, Mr.E.Kannan, 42,Vel Tech AVadi Road, Avadi, Chennai-600 062. .. Petitioner in W.P.No.5190 of 2011 Vels University, rep by its Registrar Dr.P.Govindrajan Vels Institute of Science and Technology & Advanced Studies (VISTAS) Velan Nagar, P.V.Vaithyalingam Road, Pallavaram, Chennai-600 117. .. Petitioner in W.P.No.6183 of 2011 Vs. 1.The Secretary, University Grants Commission, Bahadur Shah Jafar Marg, New Delhi-110 002. .. 1st respondent in W.P.Nos.16015, 16297, 16298, 16299, 16300, 16301, 16503, 16665, 16910, 17971 of 2010 and 6183 of 2011 2nd respondent in W.P.No.19624 of 2010 Respondent in W.P.No.21145 of 2010 2.The Joint Secretary, University Grants Commission, Bahadur Shah Jafar Marg, New Delhi-110 002. .. 2nd respondent in W.P.No.16015 of 2010 3.Government of India, Ministry of Human Resource Development, Department of Higher Education, 128 'C' Wing, Shastri Bhavan, New Delhi-110 115. (impleaded suo moto as per order dt.4.8.2010) .. 3rd respondent in W.P.No.16015 of 2010 2nd respondent in W.P.Nos.16297, 16298, 16299,16300,16301,16503, 16665, 16910,17062, 17971, of 2010 1st respondent in W.P.No.19624 of 2010 Union of India, rep by its Secretary, Department of Human Resources Development, Shastri Bhavan, New Delhi. .. 1st respondent in W.P.Nos.4856, 5190 and 6183 of 2011 University Grants Commission, Bahadur Shah Jafar Marg, New Delhi-110 002. rep by its Chairman. .. 1st respondent in W.P.No17062 of 2010 and 2nd respondent in W.P.Nos.4856 and 5190 of 2011 W.P.Nos.16015 and 16297 of 2010 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring the provisions of the UGC (Institutions Deemed to be Universities) Regulations, 2010 as ultra vires the UGC Act, 1956 and Article 14 of the Constitution of India and consequently declare the same to be inapplicable to the petitioners university. W.P.Nos.16298, 16299, 16300,16301, 16503, 16665, 16910, 17971, 19624 and 21145 of 2010 and 4856, 5190 and 6183 of 2011 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring the provisions of the UGC (Institutions Deemed to be Universities) Regulations, 2010 to be unconstitutional and ultra vires the UGC Act and consequently declare the same to be inapplicable to the petitioners universities and the members of the petitioner Association. W.P.No.17062 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring the provisions of the UGC (Institutions Deemed to be Universities) Regulations, 2010 dated 21.5.2010 issued by the respondent as ultravires of the provisions of the UGC Act, 1956, unconstitutional thus void and inoperative. For Petitioners : Mr.V.T.Gopalan, SC for Ms.B.Saraswathi in W.P.No.16015 of 2010 Mr.N.R.Chandran, SC for Mr.R.Natarajan in W.Ps.16297, 16665 of 2010, 4856, 5190 and 6183 of 2011 and for Mr.C.V.Subramanian in W.P.No.17971 of 2010 Mr.R.Krishnamurthy, SC for Mr.R.Natarajan in W.Ps.16298, 16299 of 2010 Mr.R.Muthukumarasamy, SC for Mr.R.Natarajan in W.P.16300 of 2010 and for Mr.A.Jenasenan in W.P.16301 of 2010 Mr.Vijay Narayan, SC for Mr.C.V.Subramanian in W.Ps.16503, 19624 of 2010 Mr.G.Masilamani, SC for Mr.T.Meikandan in W.P.16910 of 2010 Mr.G.Rajagopal, SC for M/s.G.R.Associates in W.P.17062 of 2010 Mr.D.Krishnakumar in W.P.No.21145 of 2010 For Respondents : Mr.R.Thiagarajan, SC for Mr.P.R.Gopinathan for RR1 and 2 in W.P.No16015 of 2010 for R-1 in W.P.Nos.16297, 16298,16299 , 16300,16301, 16503, 16665, 16910, 17062,17971, of 2010 for R-2 in W.P.No.19624 of 2010 Mr.M.Ravindran, Addl. Solicitor General for Mr.A.S.Vijayaraghavan, SCGSC for R-3 in W.P.No.16015 of 2010 for R-2 in W.P.Nos.16297,16298,16299, 16300, 16301, 16503, 16665, 16910, 17062, 17971 of 2010, 4856, 5190 and 6183 of 2011 for R-1 in W.P.No.19624 of 2010 for Mr.P.R.Gopinath for R-1 in W.P.21145/2010, and W.P.Nos.4856, 5190 and 6183 of 2011 - - - - COMMON ORDER
The short question that arises for consideration is that if the impugned regulations framed by the University Grants Commission (for short UGC) are given effect to, will the future of these deemed universities be doomed?
2.When the writ petition in W.P.No.21145 of 2010 came up before this Court, it was informed by both sides that this matter will have to be heard along with all connected matters. Accordingly, with the consent of both sides, all connected matters were listed and were heard at length. In view of the commonality of the issues raised, all the writ petitions are disposed of by a common order.
2A.These matters were admitted on various dates. In the application for interim relief, the statement made by the counsel for UGC that until the disposal of the writ petitions the impugned regulations will not be implemented was recorded. In some cases, the Government of India, MHRD was not made as party. It was subsequently impleaded as a party respondent. Two common counter affidavits were filed by the MHRD and UGC.
3.In all these writ petitions, the petitioners are either the Trusts which established the deemed universities under Section 3 of the University Grants Commission Act, 1956 or the deemed Universities themselves or the Trustees of the trusts which had established those Deemed Universities. One writ petition was filed by an Association comprising of the deemed universities in the State of Tamil Nadu. The UGC had framed regulations known as the UGC (Institutions Deemed to be Universities) Regulations, 2010, dated 21.5.2010. The regulations were ordered to come into effect from the date of publication in the Gazette of India. Accordingly, these regulations were published on 26.5.2010 in issue No.146 in the Extraordinary Gazette of India to Part III Section 4. The regulations were made for the purpose which is set out in the preamble to the Regulations, which reads as follows:
To regulate, in an orderly manner, the process of declaration of institutions as deemed to be universities; preventing institutions of dubious quality from being so declared; and, further to maintain quality of higher education imparted by institutions deemed to be universities consistent with the ideals of the concept of a university; the University Grants Commission, in exercise of powers conferred under clauses [f] & [g] of sub-section [I] of Section 26 of the University Grants Commission Act, 1956, hereby, makes the following Regulations namely:
4.Pursuant to the publication in the Gazette, the UGC had sent a communication in June, 2010 to all the petitioners Universities bringing their attention to the regulations and it directed them to make necessary changes in the existing Memorandum of Association / Rules of the Deemed to be Universities and to forward a copy of the registered Memorandum of Association / Rules to the UGC. The preamble portion of the letter reads as follows :
"As you are aware, the University Grants Commission has been entrusted with responsibility of the coordination and maintenance of the standards of higher education in the country. In order to maintain quality of higher education and research imparted by institutions deemed to be universities consistent with the ideals of the concept of a university, the University Grants Commission has finalized the UGC (Institutions Deemed to be Universities) Regulations, 2010 as approved by the Government of India, Ministry of Human Resource Development vide letter No.F.13-22/2008-U.3(A) dated 19th April, 2010 and approved by the Commission in its meeting dated 4th May, 2010. A copy of the Regulations dated 26th May, 2010, as published in the Extraordinary Gazette of India is enclosed for your information and necessary action." (Emphasis added)
5.In all these writ petitions, the petitioners were aggrieved by the following regulations :
5.2 Among the authorities of the deemed to be universities, there shall be a Chancellor who shall be appointed by the sponsoring Society or the sponsoring Trust. He /she shall be an eminent educationist or a distinguished public figure other than the President of the sponsoring Society or his/ her close relatives.
5.3 There shall be no position of Pro-Chancellor(s).
5.7 There shall be a Board of Management consisting of the following: -
i) Vice-Chancellor.........Chairperson
ii) Pro Vice-Chancellor (wherever applicable)
iii) Deans of Faculties not exceeding two (by rotation based on seniority).
iv) Three eminent academics as nominated by the Chancellor
v) One eminent academic to be nominated by the Central Government in consultation with UGC
vi)Two teachers (from Professors, Associate Professors) by rotation based on seniority
vii)One nominee of the sponsoring Society
viii)The Registrar, who shall be the Secretary The term of membership of the Board of Management and its powers are as shown in Annexure I.
6.1 Admission of students to all deemed to be universities, public or private, shall be made strictly on merit based on an All India examination as prescribed by the Regulations and in consistence with the national po1ic.y in this behalf, from time to time.
6.4 The fee structure for various programmes of study in the deemed to be universities shall also be fixed in accordance with the Fee Regulations framed by the Government or by the Commission in this behalf from time to time.
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.
20.0 USE OF THEWORD 'UNIVERSITY' An Institution deemed to be University shall not use the word 'University' suffixed to its name but may mention the words "deemed to be university" within parenthesis suffixed thereto."
6.In W.P.Nos.16503, 16910, 17971 and 19624 of 2010, in addition to the challenge made to the above regulations, Regulations 18 and 23 were also challenged. In W.P.No.5190 and 6183 of 2011, in addition to the challenge to the earlier regulations, Regulation 22.2 is also under challenge. Since these regulations are also challenged, it is necessary to extract these regulations (herein referred to as impugned regulations), which read as follows:
18.0 DISTANCE EDUCATION No institution deemed to be university, so declared by the Central Government subsequent to these Regulations, shall be alIowed to conduct courses in the Distance mode. Also, such institutions declared as such, prior to these Regulations, shall not be allowed to conduct courses in the Distance mode from any of its off-Campus Centre / off-shore Campus approved subsequent to these Regulations.
22.2 After conducting an inspection of the institution deemed to be university by the Commission on its own or on the basis of any other authentic information or report received from any other reliable source(s) and after considering the ' Commission is satisfied that the institution deemed to be university explanation submitted by the institution deemed to be university, if the has violated any of the provisions of these Regulations or any directives issued by the Commission, the Commission may direct the concerned institution deemed to be university not to admit new students for the period to be decided by the Commission and in case of deliberate continuous violation of these Regulations, may advise the Central Government for withdrawal of the declaration notifying the institution as an institution deemed to be university. In the event of such withdrawal of the declaration, the entire movable and immovable properties of the institution deemed to be university shall stand forfeited to the Commission. For first violation, the withdrawal may be restricted to one academic session which can be extended up to five academic sessions for repeated violations. However, for serious and deliberate violation, the status of deemed to be university shall be withdrawn permanently.
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.
7.It was contended that the provisions of the UGC Act are applicable to all the statutory universities as well as deemed to be universities without any distinction. Under section 25 of the UGC Act, the Central Government can frame rules. The Central Government in exercise of its power under Section 25(1), can only frame rules for the purpose of prescribing initial norms and standards to declare an institution for higher education as deemed to be university. Once such declaration was made, there is no provision or warrant to make further declaration in the matter of applicability of provisions of the UGC Act and Rules. This aspect was not taken note of while framing the impugned regulations. Under Section 26 of the UGC Act, the UGC has been given only power to make regulations in restricted areas. It is only under Section 25(1), the Central Government is vested with power to make rules to carry out for the purpose of the Act. When once an University under Section 2(f) as well as an institution deemed to be university (IDU) is recognised under Section 3, different yardsticks cannot be made between the two types of universities.
8.A subordinate legislation cannot exceed the limit of the authority conferred by the enabling Act and that it is ultravires of the Act. Imparting education is a State function. But, having regard to its financial constrain, the function of imparting education has been given to private educational institutions and such institutions supplement the function of the State. Though not to an independent activity, they are closely allied and supplemental to the activity of the State. Therefore, while framing rules or regulations concerning the IDUs, they should not put fetters upon the private bodies or trusts running IDUs. It would virtually tantamount to crippling the control of such IDUs. If an institution is already recognised under Section 3, no further restriction can be put so as to discriminate between regular universities and the IDUs. After the grant of recognition under Section 3, the UGC Act do not authorise any further discrimination or distinction to be made between the universities and IDUs. The impugned regulation 1.2 though states that it applies to every institution seeking declaration as deemed to be university under the Act and also albeit prospectively to an institution which has been declared as an IDU under Section 3. Therefore, it has been really made only prospectively, but applying the same to the existing IDUs cannot be sustained in law. These regulations cannot be applied to the existing universities which are granted recognition under Section 3.
9.Regulations 5.2, 5.3 and 5.7 are ultra vires of the UGC Act and are arbitrary, violative of Article 14 of the Constitution. While no exception can be taken to the requirement that a person who is appointed as a Chancellor of the IDU must be an eminent educationist or a distinguished public figure, but excluding holders of the office who are close relatives of the President is highly arbitrary. The Trust which runs the management of the University is not receiving any aid. Hence there is no question of any public money involved and it will be too hard for the private trust to run the university by having a stranger as its Chancellor. The trust will not have any confidence in such a person. Similarly, the abolition of Pro-Chancellor under Regulation 5.3 is also unjustified. All the statutory universities in the State are having Education Minister of the State as the Pro-Chancellor and the head of the State as the Chancellor. Most of times, neither the Governor nor the Minister holding the Portfolio of Education are eminent educationists. Therefore, a different yardstick cannot be applied to the IDUs.
10.In the composition of the Board of Management, granting only two members is virtually crippling the trust or the society from the control over the trust. The object behind such curtailment does not advance the object of the Act. The private trust which established IDUs invested all its finance without getting any aid from any source cannot be sidelined and they should not reduce the minority representation in the management. This exercise cannot improve the standard of higher education. In regulations 7.5.5. and 22.2, in the event of withdrawal of status of deemed universities, the corpus of the universities will stand forfeited to the UGC to meet its liability if any is clearly ultra vires of the provisions of the Act. Regulation 23 curtailing the IDUs from using the word University as it is suffixed is also arbitrary, because for all practical purposes, an IDU is also an University covered by the other provisions of the UGC Act.
11.In support of these propositions, it was contended by Mr.R.Krishnamurthy, learned Senior Counsel appearing in W.P.Nos.16298 and 16299 of 2010 that the trust was established by the minority and if these regulations are implemented, it will lose its minority character. It is also submitted that under Sections 25(3) and 26(3) of the UGC Act, power to confer retrospective effect to the rules framed by the Central Government and Regulations framed by the UGC has been made as the case may be. It is submitted that no such retrospective effect shall be given so as to prejudice the interest of any person to whom such rules or regulations are made. Therefore, the impugned regulations affecting the interest of the petitioners universities are clearly invalid. He further submitted that under the guise of higher standard of education, the management of the universities cannot be taken away by the Government. There is no rhyme or reason to exclude the close relatives of the President from holding the office of Chancellor. The objects and reasons of the UGC was for determining and allocating university funds made available by the Central Government. When these IDUs were not receiving any funds, these regulations are virtually amounting to nationalisation of private institution. They have virtually hijacked the society / trust which established IDUs. The petitioners university, after its establishment, in 10 to 15 years has earned high reputation as an institution and it had satisfied the authorities with all its requirements. Under the guise of such high standard, they cannot deprive the right of the management. In case of any lapse by any erred individual in the IDU, an action can be taken in respect of such lapse. Therefore, he prayed for setting aside those regulations.
12.Mr.N.R.Chandran, learned Senior Counsel leading Mr.R.Natarajan, learned counsel, while adopting the arguments of Mr.R.Krishnamurthy, learned Senior Counsel, also stated that by the impugned regulations, the existing memorandum of association cannot be altered. If the trust which is mis-managed, can only be dislodged by a petition filed under Section 92 of CPC and not otherwise.
13.Mr.V.T.Gopalan, learned Senior Counsel leading for Ms.B.Saraswathi, had stated that once deemed status is conferred, there is no other power to deprive the said status. They are entirely a self financial bodies and have achieved better performance. While statutory universities are allowed their own method of management, there is no uniform yardstick adopted. He submitted that once fiction is created by law, it must be given full effect. Therefore, having created IDUs under Section 3, they cannot adopt different yardstick. In this context, he referred to a judgment of the Supreme Court in Commissioner of Wealth Tax, Hyderabad v. Trustees of H.E.H., reported in (2003) 5 SCC 122 and referred to the following passages found in paragraphs 20 and 21, which read as follows :
20.In Bhavnagar University v. Palitana Sugar Mill (P) Ltd.9 it was held: (SCC p. 123, para 33) 33. The purpose and object of creating a legal fiction in the statute is well known. When a legal fiction is created, it must be given its full effect. In East End Dwellings Co. Ltd. v. Finsbury Borough Council10 Lord Asquith, J. stated the law in the following terms: (All ER p. 599 B-D) If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. The said principle has been reiterated by this Court in M. Venugopal v. Divisional Manager, LIC of India11. See also Indian Oil Corpn. Ltd. v. Chief Inspector of Factories12, Voltas Ltd. v. Union of India13, Harish Tandon v. ADM, Allahabad14 and G. Viswanathan v. Hon'ble Speaker, T.N. Legislative Assembly15.
21.Once the legal fiction under the Act is taken to its logical corollary, the conclusion is inescapable that while assessing the net wealth of the jewelleries in question, the charge created thereupon in terms of Section 74(2) of the Estate Duty Act will have to be taken into consideration.
14.The learned Senior counsel had also stated that when a criteria is fixed by statute, an attempt should be made by the authority in making delegated legislation to follow the policy formation broadly and substantially and in conformity thereof. The UGC can only exercise of its legislative power by making regulations and executive power by administrative regulations and it must apply with the constitutionality of the Act. For this purpose, he relied upon a judgment of the Supreme Court in Clariant International Ltd. v. Securities & Exchange Board of India reported in (2004) 8 SCC 524 and referred to paragraphs 63 and 77, which read as follows:
63.When any criterion is fixed by a statute or by a policy, an attempt should be made by the authority making the delegated legislation to follow the policy formulation broadly and substantially and in conformity therewith. [See Secy., Ministry of Chemicals & Fertilizers, Govt. of India v. Cipla Ltd.23, SCC para 4.1.)
77.The Board exercises its legislative power by making regulations, executive power by administering the regulations framed by it and taking action against any entity violating these regulations and judicial power by adjudicating disputes in the implementation thereof. The only check upon exercise of such wide-ranging powers is that it must comply with the Constitution and the Act. In that view of the matter, where an expert Tribunal has been constituted, the scrutiny at its end must be held to be of wide import. The Tribunal, another expert body, must, thus, be allowed to exercise its own jurisdiction conferred on it by the statute without any limitation.
15.He further submitted that even under Regulation 26, there is no power to frame impugned regulations. The generality of the power to frame rules carry out the purposes of the Act had been only given to the Central Government under Section 25(1). The impugned regulations are not only arbitrary, but also it does not have any nexus to the object which sought to be achieved. He submitted that the rules framed must satisfy the test of Article 14, which is a guarantee granted against the arbitrary action. He also submitted that a piece of subordinate legislation does not carry the same degree of immunity which are enjoyed by a statute passed by the competent authority. For this purpose he relied upon a judgment of the Supreme Court in Khoday Distilleries Ltd. v. State of Karnataka reported in (1996) 10 SCC 304 and relied upon the following passage found in paragraph 13 which reads as follows:
13.It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In the case of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India2 (SCR at p. 243) this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires. In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.
If these regulations are applied, then the institutions will certainly suffer and the forfeiture clause can be completely made use of by the respondents for taking over the institutions.
16.Mr.G.Masilamani, learned Senior Counsel leading for Mr.S.T.Meikandan, learned counsel in W.P.No.16910 of 2010, submitted that in Tamil Nadu, there are over nine Engineering Colleges, out of which six are Government Colleges and three are aided private colleges. They were only providing 4500 seats. Further the University Engineering colleges are giving around 5000 seats. Whereas there are 4184 self financing Engineering Colleges and are providing for 1,80,000 seats. Even within that, a portion has been given to the State Government for filling up seats under the State Quota. Therefore, the contribution made by the private educational institutions in the field of Human Resources Development cannot be minimised. The greater wealth of this country is in the form of human resources and larger number of candidates produced in these colleges have gone abroad and are remitting foreign currencies, thereby bringing more wealth to this country. They are contributing to the development of the nation. Under Section 3, all types of Universities are referred to and there cannot be any difference between the IDUs and other universities established by the Act of legislature. Though there is no UGC funds to these colleges, but in terms of regulations, they are trying to put more pressure on the IDUs. Unless the UGC Act is amended, these regulations could not have been made. The UGC cannot arrogate itself the powers which were not conferred under the Act. The right to establish an institution carry within itself a right to management. What one hand gives cannot be taken away by the other hand. Unreasonableness and arbitrariness is writ large on these impugned regulations. The law should be made in tune with the ground reality. A bad apple in one basket cannot make all apples in the basket to be discarded. If there are one or two erring institutions, suitable remedial measures can be taken in respect of those institutions.
17.Mr.R.Muthukumarasamy, learned Senior Counsel leading Mr.R.Natarajan learned counsel appearing in W.P.No.16300 of 2010 claimed that it is a minority institution. In W.P.No.16301 of 2010 he appears for Mr.A.Jenasenan. He contended that regulations are ultra vires of Section 26 and are unconstitutional. In any event, the court has to interpret the regulations as to have the effect only for prospective and will not effect the existing IDUs. There is no statutory backing for the guidelines framed. Since having allowed them to establish Universities and approved the memorandum of association, they cannot ask to give a go-bye for the existing structure and the promissory estoppal will apply against the action taken by the impugned regulations. Instead of UGC framing regulations, the Central Government had exercised its power through a committee and there is no free determination by the UGC.
18.Mr.G.R.Rajagoplan, learned counsel appearing for M/s.G.R.Associates in W.P.No.17062 of 2010 submitted that both the counter affidavits filed by the Central Government as well as by the UGC clearly proceed that the regulations will apply even to the existing regulations. He referred to a latin maxim "Applicando singula singulis" which means by applying each to each. The special condition, provision or declaration as the case may be should apply to a particular subject to which referable and it is well known rule of construction in any deeds.
19.He further submitted that the general principle of legislation should not change the character of false transaction and the retrospective law is the rule of questionable policy. He referred to a latin maxim "Nemo potest mutare consilium suum in alterius injuriam", which is a maxim adopted in a Roman law which is a stipulation specially applied as a restriction upon a law giver who is restricted in making retrospective law.
20.The learned counsel referred to a judgment of the Supreme Court in Prem Chand Jain Vs. R.K.Chhabra reported in (1984) 2 SCC 302 to contend that once an institution is recognised under Section 3 as a deemed to be university, it is entitled to exercise all functions under the provisions of the UGC Act and referred to the following passages found in paragraphs 7,8 and 11, which reads as follows:
7.The word university has been defined in Section 2(f) of the Act to mean: 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. Section 23 of the Act imposing the prohibition for use of the word University also provides that way. .....
8.....the Act essentially intended to make provisions for the coordination and determination of standards in universities and that, as already indicated, is squarely covered under Entry 66 of List I. While legislating for a purpose germane to the subject covered by that entry and establishing a University Grants Commission, Parliament considered it necessary, as a regulatory measure, to prohibit unauthorised conferment of degrees and diplomas as also use of the word university by institution which had not been either established or incorporated by special legislation......
11.Before we part with the matter, we think it appropriate to deal with another aspect. Under Section 3 of the Act provision has been made that the Central Government may on the advice of the Commission declare by notification in the Official Gazette any institution for higher education other than a university to be deemed to be a university for the purposes of the Act and when such declaration is made, all the provisions of the Act would apply to such an institution as if it were a university within the definition of the term in Section 2(f)......
21.Therefore, he submitted that when once the power is conferred under Section 3 to an institution as a deemed to be university, then it has power to confer a degree under Section 22. It does not curtail the said university from starting any new department or conferring any new degree. It does not require any prior permission from any authority. If the Central Government or the UGC want to prohibit the IDUs from granting any new degree, then they should make amendments to Section 22 to prevent them from conferring any degree. Regulation 17 providing for reservation in the matter of admissions and recruitment and it must be noted that there is no central Law made by the Parliament. They cannot be compelled to adopt any State legislation. The State has got no power over admission of students in the deemed universities.
22.He also referred to a judgment of the Supreme Court in Bharati Vidyapeeth v. State of Maharashtra reported in (2004) 11 SCC 755 and referred to the following passages found in paragraph 18, which reads as follows:
18.Under Section 3 of the Act, deemed university status will be given to those institutions that for historical reasons or for any other circumstances are not universities and yet are doing work of a high standard in specialised academic field compared to a university and that granting of a university status would enable them to further contribute to the course of higher education which would mutually enrich the institution and the university system. Guidelines for considering proposals for declaring an institution as deemed to be university were also issued by UGC. Under the said guidelines aspects relating to admission were specifically entrusted with UGC and admission could be made only through a common entrance test on all-India basis. Such an exercise was intended to maintain a uniform standard and level of excellence. As we have pointed out, admission plays a crucial role in maintaining the high quality of education. And for the proper maintenance of academic excellence, as intended by the UGC Act, admission to deemed university have to be made under the control of UGC. This further goes to show that admission procedure to a deemed to be university is fully occupied by Entry 66 of List I and the State cannot exercise any powers over admission procedure.
23.He further submitted that having conferred the status of an IDU under Section 3, the UGC cannot withdraw the said power by making the impugned regulations. Section 21 of the General Clause Act cannot be made applicable. A similar question arose with reference to withdrawal of recognition by the Election Commission. The argument was that the power to confer recognition will also the power to withdraw the same. In the absence of the power under the UGC Act, they cannot withdraw the status granted to an IDU. For this purpose, he relied upon a judgment of the Supreme Court in Indian National Congress (I) v. Institute of Social Welfare reported in (2002) 5 SCC 685 and referred to the following passages found in paragraphs 37 to 39 which reads as follows:
37.It was next urged by the learned counsel for the appellants that the view taken by the High Court that by virtue of application of provisions of Section 21 of the General Clauses Act, 1897 the Commission has power to deregister a political party if it is found having violated the undertaking given before the Election Commission, is erroneous. According to him, once it is held that the Commission while exercising its powers under Section 29-A of the Act acts quasi-judicially and an order registering a political party is a quasi-judicial order, the provision of Section 21 of the General Clauses Act has no application. We find merit in the submission.
38.We have already extensively examined the matter and found that Parliament consciously had not chosen to confer any power on the Election Commission to deregister a political party on the premise that it has contravened the provisions of sub-section (5) of Section 29-A. The question which arises for our consideration is whether in the absence of any express or implied power, the Election Commission is empowered to cancel the registration of a political party on the strength of the provisions of Section 21 of the General Clauses Act. Section 21 of the General Clauses Act runs as under:
21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.Where, by any Central Act or regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
39.On perusal of Section 21 of the General Clauses Act, we find that the expression order employed in Section 21 shows that such an order must be in the nature of notification, rules and bye-laws etc. The order which can be modified or rescinded on the application of Section 21 has to be either executive or legislative in nature. But the order which the Commission is required to pass under Section 29-A is neither a legislative nor an executive order but is a quasi-judicial order. We have already examined this aspect of the matter in the foregoing paragraph and held that the function exercisable by the Commission under Section 29-A is essentially quasi-judicial in nature and order passed thereunder is a quasi-judicial order. In that view of the matter, the provisions of Section 21 of the General Clauses Act cannot be invoked to confer powers of deregistration/cancellation of registration after enquiry by the Election Commission. We, therefore, hold that Section 21 of the General Clauses Act has no application where a statutory authority is required to act quasi-judicially.
24.Mr.Vijaynarayan, learned Senior Counsel leading Mr.C.V.Subramanian, learned counsel appearing for the petitioner in W.P.No.19624 of 2010 (Bharath University) and in W.P.No.16503 of 2010 (Tamil Nadu Deemed Universities Association), contended that the preamble to regulation 5 makes it clear that an institution to be declared as a deemed to be university shall adhere to the following criteria which means that it will not apply to the earlier existing deemed universities. In clause 22 of Annexure I, it is clearly indicated that the properties of the universities are virtually taken over by the State without any authority of law, which is clearly contravening Article 300A of the Constitution. They cannot take over the property and satisfy the debts and liabilities of others and get the reminder to be transferred to the State. Under Regulation 7.1, already securities are created in Government securities and in other forms approved by the UGC which would satisfy the liability on account of salary of teachers. For enacting regulations 7.5.1 and 22.2, there is no legislative sanction against those regulations.
25.Mr.D.Krishnakumar, learned counsel appearing for the petitioner in W.P.No.21145 of 2010 adopted the arguments of other counsels.
26.Opposing the contentions made by the petitioners, in the counter affidavit filed by the Union of India sworn to by the Under Secretary to the Ministry of Human Resource Development Department of Higher Education, New Delhi, dated 25.4.2011, it was contended that the competency of legislation of matters concerning coordination and determination of standards of higher education and research lies with the Parliament by virtue of Entry 66 List I of VII Schedule made under Article 246. The UGC was established for the said purpose. Under Section 2(f) of the UGC Act, the term "University" includes an institution recognized by the Commission in accordance with the regulations made under the Act. Even for conferring deemed to be university status, the Central Government will have to go by the advise of the Commission. The Supreme Court while entertaining a Public Interest Litigation in a case relating to Viplav Sharma Vs. Union of India in a Writ Petition (Civil)No.142 of 2006 had issued notice to the Central Government and the prayer made includes that the institution to provide a quality training and produce high rated research materials and to formulate new regulations and rules for declaring any institution under Section 3 of the UGC Act and also to publish in the newspapers about the unauthorised centers run by the deemed universities warning public and saving students' community. Therefore, in the light of the litigation and also general public perception, the Government had directed the UGC on 4.6.2009 to review the functions of such institutions with reference to the availability of physical infrastructures and teaching resources. The Government also had constituted a committee on 6.7.2009 of eminent academic experts to review the functions of the institutions which are declared as IDUs. The Committee on studying all these factors had concluded that only 38 institutions have made achievements and performance and potentially justified their continuance of status as deemed universities. Another 44 institutions which are IDUs were found to be deficient in some aspects and they need to be rectified over a three year period so as to justify their continuance of such status. The balance 44 institutions do not have attribute to retain their status. In view of the recommendation of the review committee, the Government had constituted a Task Force on 16.11.2009 to make an action plan for safeguarding the interest of students and to advise the Government to draft UGC regulations for conferred the status of IDUs. The report given by the review committee and that of the task force were accepted in principal by the Government.
27.It was stated that under 26.1 (f) and (g), the UGC has power to make regulations defining minimum standard for institutions for the grant of any degree by any University and for regulating the maintenance of standards and coordination of work and facilities by universities. It is in exercise of these powers, the UGC had framed the impugned regulations (referred to above). The impugned regulations have replaced the UGC guidelines of 2000 which were utilized for conferred the status under Section 3. The earlier guidelines lack necessary force of law. The UGC had issued impugned regulations which were notified in the Gazette on 26.5.2010 as required under law. The regulations are made not only to apply to the future IDUs, but also the existing IDUs. These regulations will enhance the transparency and accountability in the functions of the institutions which have public character. It aims at excellence in higher education by eliminating the possibility of vested interest in the governance, functions and decision making process of such institutions. The review committee found that the existing Board of Management of IDUs were tightly controlled by the members of sponsoring trust and societies and have also designated the head of the family as an ex-officio Chancellor including for executive functions like chairing the Board of management. The dominant presence of family members / relatives of head of the trust is an undesirability management architecture and deprive the IDUs an opportunity to benefit from free flow of ideas from academic community. The regulations on admissions and fees contribution maintains academic standards and remove the hardship of students and prevent the commercialization of higher education.
28.It was further stated that the process of admission falls within the scope of determining the standards of education. It would be permissible to regulate the admissions by providing centralization and single window procedure. The safeguard the interest of students who receive education in such institution is the prime concern of both the Government and the UGC. The impugned regulations provide for clear approval of Commission to start a new department, Off-campus center, Off-shore campuses. It is well within the power of the UGC to require such permission. This is to ensure that the existing IDUs do not resort to franchising and expansion by reducing the existing physical and academic infrastructure facilities. The IDUs cannot dictate what should be the procedure to be adopted by the UGC. There are no mala fide attributed to such procedure. Not only the review committee, but even the task force emphasised the students enrolled in the newly approved distance education programme should be assigned either to IGNOU or to the State Open Universities. It was found by the review committee that many deemed universities ventured into an arena of distance education, launching innumerable programmes without experience and without mandate. The IDUs should not use the word University as suffix, as Section 23 of the UGC Act itself prohibits the use of the word University by any institution other than one is established by the Central Act, Provincial Act or the State Act. Therefore, the regulation 20 is in commensurate with Section 22 of the UGC Act. Section 22 only provides the consequence of violation of UGC regulations. Under Section 3 of the UGC Act, the Central Government is fully competent to withdraw the earlier declaration and there is no vested right or statutory right to continue the operation and activities of IDUs, even for violating the statutory regulations. Regulation 23 is made keeping in mind large public interest. It does not affect or take away any vested right or accrued fundamental right. There was no embargo for any IDUs to submit a new proposal for consideration. Annexure 2 is a consequence of invocation of penal provisions contemplated in Regulation 22. Therefore, it was submitted that the impugned regulations do not call for any interference from this court.
29.In the common counter affidavit filed by the UGC, dated 24.4.2011, the stand adopted by the Government of India was reiterated. In addition to the contentions made by the Government of India, it was stated that it does not place any unreasonable restriction on the petitioners claiming right to guarantee under Section 19(1)(g) of the Constitution and even that right is subject to reasonable restriction to be made under Article 19(6) and that certain restrictions can also extent to total prohibition. It is stated by the UGC that the draft regulations were circulated during December, 2007 by the UGC to all the Deemed universities. It was indicated that it was circulated to incorporate modifications suggested by various expert committees and need to provide comprehensive regulations. They were asked to send their comments. Excepting for one or two institutions, there was no response from any of the Universities.
30.The report of the Committee for Review of existing institutions deemed to be universities dated 19.10.2009 presided by Professor P.N.Tandon and participated by other members including Prof.Govardhan Mehta, Prof.M.Anandakrishnan, Prof.Mrinal Miri and Shri Sunil Kumar, Convenor, was also circulated for perusal by this Court. The Review Committee found that way back in the year 1958, there were only three deemed universities, but number of deemed universities have considerably increased and there are 130 institutions which are enjoying IDU status and many more are waiting for such conversion. In the wake of rapid expansion of the deemed to be universities in recent years, there were serious public concerns extensively articulated by the media relating to their quality, performance and practices. The concerns were also noted by the Yash Pal Committee's report, dated 22.6.2009. The said Committee made recommendations, which is as follows:
"...the granting of such status should be put on hold till unambiguous and rational guidelines are evolved. Institutions wishing to get deemed university status should demonstrate special capabilities as was originally intended and should be rigorously evaluated to see if they fulfil the holistic and universal concept of university outlined in this report. The institutions, which have somehow managed to secure such status should be given a period of three years to develop as a university and fulfil the prescribed accreditation norms failing which the status given to them would be withdrawn."
31.A Public Interest Litigation was filed by one Viplav Sharma (cited supra). It was alleged that number of professional colleges which are not known for academic excellence were also granted status of IDUs and that the UGC had left deliberately vague areas of elastic definition. The Review Committee was asked to go into as per the terms of reference given to it which includes compliance met by the institutions requiring the status under Section 3 as IDUs. The Review Committee had observed that while the University established by the statutes, though are not entirely free from utility driven education and learning, their core aim is very different. Radhakrishnan Commission of Education 1948 while going into the question of establishing new universities made a valuable observation. It had stated that the universities should develop a special strength in some particular fields. If these suggestions are kept in mind, then the IDUs which are conferred such status pursuant to Section 3 read with UGC guidelines of 2000, should have the necessary viability and management capable of contributing in the university ideals and traditions. They must engage in teaching programmes and research in chosen fields of specialization. The intention behind the Act and guidelines for conferring the status to IDUs was not altogether to remove the distinction between a University and IDUs. The word as if found under Section 3 will make a difference between the two. An institution to become an IDU should have been in existence for some length of time and achieved excellence of a very high degree in post graduate education and research before becoming eligible to be considered for the deemed university status.
32.while upto 1970, there were only 7 institutions which are IDUs, between 1970-80, two more were added, between 1981-90, 20 institutions were notified, between 1991-2000, 14 institutions were granted such status It s between 2001-2009, 87 institutions were conferred IDUs, thereby taking the total to 130. This unprecedented and uncontrolled growth of private institutions in the field of professional education, i.e. Engineering, medical and health sciences, business administration had created problems of equity, quality and covert or overt commercialization of education. The committee elicited responses to the issues relating to original mandate of these institutions and also it had the benefit of perusing the report supplied by the UGC and by the Ministry from the Agenda papers. It found that many of the IDUs gave incomplete or inaccurate report relating to key factors such as faculty strength and qualification. All the 130 deemed to be universities were invited for presentation and face to face discussion with the Review Committee, out of which 126 institutions appeared before the Committee. The committee on the basis of these materials found that the Board of Management of large number of deemed universities are totally controlled by the members of sponsoring trust/society. The head of the trust was made as an Ex-officio Chancellor including functions like chairing the Board of Management. In normal circumstances, the Chancellor of the University should be an eminent academic or public figure who has only a ceremonial role. The Board of management was constituted with disproportionate representation of the trust and that dominant presence of family members and relatives brought undesirable practice for the management architecture of the University. Preponderance participation of family members undermines the authority of the Vice Chancellor and compromise the autonomy of the University. The position such as Pro-Chancellor was created to accommodate the family members or relatives and they automatically become the members of the Board of Management and vested with executive functions. The Chancellor of these universities have appointed their own kith and kin as Vice Chancellors in violation of all ethical norms and propriety of University Governance. In many places, it was found that the Vice Chancellor has become a figure head.
33.Having obtained deemed university status, presumably for good work done in one or two areas, they went on to create totally new, often unrelated full-fledged independent colleges in unconnected disciplines for lucrative value of those courses. By introduction of a large number of run of the mill programmes without corresponding increase in the faculty strength, they had contravened the mandate and vision for which they were given status. Venturing into the area of distance education without experience and starting study centres across the country, the reasons are not able to be fathomed. The research activities and publications were thoroughly lacking and IDUs do not show any evidence of commitment in these areas. The admission procedure was not satisfactory and the fee structure were also manipulated. Thus the committee found that there were three categories of deemed universities. Those institutions which on an aggregate of their achievements and performance as well potential, justify their continuation as deemed universities and there were 38 institutions in this category (not one belonged to the petitioners). The second category was those which were deficient in some aspects need to be rectified over a three year period for them to transit into the first category for their continuance of deemed universities status. In that list, the names of the following institutions are set out:
1)W.P.No.16301 of 2010 Sri Ramachandra University
2)W.P.No.17062 of 2010 - SASTRA University
3)W.P.No.4856 of 2011 - VIT University
4)W.P.No.16299 of 2010 Sathyabama University
5)W.P.No.16015 of 2010 SRM University
6)W.P.No.16297 of 2010 Hindustan University
7)W.P.No.16298 of 2010 B.S.Abdur Rahman University.
34.The third category are the institutions which are neither on past performance nor on their promise for the future have the attributes to retain their status as deemed universities. In the last table No.3, the following names of the institutions are mentioned :
a)W.P.No.17971 of 2010 (Vinayaka Mission University)
b)W.P.No.19624 of 2010 (Bharat University)
c)W.P.No.16910 of 2010 (Meenakshi Academy of Higher Education and Research)
d)W.P.No.21145 of 2010 (Saveetha University)
e)W.P.No.16665 of 2010 (Kalasalingam University)
f)W.P.No.16300 of 2010 (St Peters University)
g)W.P.No.6183 of 2011 (Vels University)
h)W.P.No.5190 of 2011 (Vel Tech University) Therefore, the Committee had recommended an action against the third category for disaffiliation and also the second category for carrying out corrective measures.
35.Pursuant to the said report, though actions were initiated, the matter had been taken to the Supreme Court and it is pending consideration before the Supreme Court. This Court is not dealing with those issues and only confined to the present writ petitions the validity of the impugned regulations.
36.Mr.M.Ravindran, learned Additional Solicitor General appearing for the Union of India leading Mr.A.S.Vijayaraghavan, learned Senior Central Government Standing Counsel and also leading Mr.P.R.Gopinath, learned counsel for UGC in certain matters as well as Mr.R.Thiagarajan, learned Senior Counsel for Mr.P.R.Gopinath, learned Standing Counsel for UGC in some writ petitions.
37.Mr.M.Ravindran, learned Additional Solicitor General contended that it is not as if the impugned regulations were without any materials. It had the report of the review committee and also the report of task force. Before the said exercise, a draft regulation was also circulated and the task force on the basis of the report had recommended regulations to be notified. The impugned regulations are very much in consonance with the powers vested with the Central Government as well as the UGC which advise was crucial for conferring the status under Section 3 of the UGC Act. The conferment of deemed university status is not for ever and even while their status was conferred, the Ministry in their notification has clearly stipulated that it is initially only for a few years and thereafter is liable for review by the UGC. He had also stated that in the condition for grant of such status it was stipulated that the trust and the deemed universities are abide by the norms and guidelines laid down and the instructions issued from time to time by the UGC for continuing the status as IDUs. The Memorandum of association submitted by the different IDUs are not final and it can always be made subject matter of further modification with the approval of the UGC. He had also made a distinction between the universities established by the Act of legislature and Parliament and the IDUs which have been granted the status under Section 3 of the UGC Act.
38.Mr.R.Thiagarajan, learned senior counsel continuing his submissions on the same lines had stated that the Supreme Court in Prem Chand Jain Vs. R.K.Chhabra reported in (1984) 2 SCC 302 (cited supra) had stated that the 42nd amendment to the constitution was essentially intended to make provisions for coordination and determination of standards of universities and it is covered by Entry 66 List I of schedule 7.
39.He also referred to a judgment of the Supreme Court in Osmania University Teachers' Assn. v. State of A.P., reported in (1987) 4 SCC 671 and referred to the following passages found in paragraph 14 which reads as follows:
14...... Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to coordinate and determine the standards for higher education. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state that such a coordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to education has been distributed between List I and List III of the Seventh Schedule.
40.He further referred to a judgment of the Supreme Court in University of Delhi v. Raj Singh reported in 1994 Supp (3) SCC 516 and referred to the following passage found in paragraph 20 which reads as follows:
"20....... The UGC Act is enacted under the provisions of Entry 66 to carry out the objective thereof. Its short title, in fact, reproduces the words of Entry 66. The principal function of the UGC is set out in the opening words of Section 12, thus:
It shall be the general duty of the Commission to take ... all such steps as it may think fit for the promotion and coordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities .... It is very important to note that a duty is cast upon the Commission to take all such steps as it may think fit ... for the determination and maintenance of standards of teaching. These are very wide-ranging powers......
............ For performing its general duty and its other functions under the UGC Act, the UGC is invested with the powers specified in the various clauses of Section 12. These include the power to recommend to a University the measures necessary for the improvement of University education and to advise in respect of the action to be taken for the purpose of implementing such recommendation [clause (d)]. The UGC is also invested with the power to perform such other functions as may be prescribed or as may be deemed necessary by it for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of such functions [clause (j)]. These two clauses are also wide enough to empower the UGC to frame the said Regulations......."
41.The learned counsel further referred to a judgment of the Supreme Court in Bharati Vidyapeeth v. State of Maharashtra reported in (2004) 11 SCC 755 and referred to the following passage found in paragraph 11, which reads as follows:
11. The expression coordination has been explained by this Court in more than one decision. Firstly, in Gujarat University v. Krishna Ranganath Mudholkar1 and recently in State of T.N. v. Adhiyaman Educational & Research Institute2. In these two decisions it is stated that the expression coordination used in Entry 66 of List I of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It will include power to do all things, which are necessary to prevent what would make coordination either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.
42.The said judgment came to be followed by a division bench of this Court in The Secretary, Kamaraj College, Thoothukudi Vs. D.S.Arulmani, Reader and Head of Department of Tamil, Kamaraj College, Thoothukudi and others reported in 2008-1-L.W.530. In paragraph 20 of the judgment, it was observed as follows:
"20.Thus the entire scheme of University Grants Commission Act, 1956, right from its preamble up to the provision relating to conferment of power to issue regulations focuses attention on the "co-ordination and determination of standards in Universities", a phrase borrowed only from Entry 66 of List I of the Seventh Schedule of the Constitution."
In the light of these facts, he submitted that there is no illegality in the impugned regulations.
43.In the light of these rival contentions, it has to be seen whether the impugned regulations call for any interference?
44.Under the impugned regulations followed by a communication, the UGC had only directed the deemed universities to make appropriate amendment to their existing memorandum of association or rules. It is also pointed out that it is retrospective in nature. There is no doubt that a perusal of regulation 1.2 clearly shows that it applies to existing institutions, otherwise it may create a situation that those who have got already the status can never be brought the standard which the UGC wanted to impose in all the existing IDUs. Considering the nature of the changes required to be made, they cannot contend that the existing institutions need not comply with the modifications required. In essence, there is no promissory estoppel in these matters and ultimately the watchdog body was set up for coordination, standard in the matter of higher education. The IDUs since have discharged the functions of the universities, they must conform to the standard that is required to the universities. Sections 25(3) and 26(3) of the UGC Act enables the Central Government and the UGC as the case may be to make rules or regulations with retrospective nature. Therefore, there cannot be any lack of power. The term mentioned therein, i.e., no rule or regulation to be made to the prejudice of any person does not mean that those regulations are prejudicial to ay one. On the other hand, the term "prejudice" is only related to an individual. Since the requirement to maintain standards directly flows from Entry 66 List 1, any change in terms of such requirements cannot be said to be prejudiced. On the other hand, it enhances the cause of excellence in education and also saves the gullible students and parents from being taken for a ride by such universities, who do not measure up to the standards.
45.In fact the argument that once granted status can never be withdrawn goes against the spirit and purpose for granting such status. It is not clear as to how the impugned regulations can be said to be arbitrary. In this context it is necessary to refer to a judgment of the Supreme Court in Sharma Transport v. Government of A.P., reported in (2002) 2 SCC 188 and in paragraph 25, the Supreme Court had observed as follows:
25..... The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression arbitrarily means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone.....
46.Further regulations have been framed validly under Section 26(1)(f) and (g) by the UGC under delegated power and the Act authorised the UGC to frame such regulations.
47.The second contention that the UGC is only a fund giving authority and it cannot make such regulations to non funded IDUs also cannot be accepted, since the Supreme Court in Bharati Vidyapeeth's case (cited supra) had rejected such an argument. Hence it is relevant to extract the following passage found in paragraph 24, which reads as follows:
24.Learned counsel appearing for the State very strenuously urged that the UGC Act is only for the purpose of making grants to various institutions governed by it and it was not an authority which would create a university and give a special status to it so as to keep it out of the control of the university or the State where it is located. This argument ignores the provisions of the enactment and particularly those to which we have adverted to just now, for such institutions are recognised or granted deemed status for the maintenance of the standards in the institutions and for coordinating the teaching in universities which is a higher purpose than merely giving grants and with that object, the enactment is made. We do not think it could be confined only to making of grants as has been contended by the respondents. This argument, therefore, needs to be rejected.
48.A further argument that the status can never be withdrawn either under Section 3 or under regulations and statutory amendment also cannot be accepted. The power to confer the status also includes the power to withdraw such status. Reliance placed upon a judgment of the Supreme Court in Indian National Congress's case (cited supra) cannot have any application. In that case, the Election Commission was found to exercise quasi judicial power under Section 29A. Therefore, exercising such quasi judicial power cannot include the power to withdraw the recognition. It has been mentioned in the very same judgment in paragraph 39 extracted above that under Section 29-A Election Commission do not exercise either legislative or executive power.
49.The argument that there is discrimination between the universities established by the Act of legislature and the deemed universities also cannot be countenanced. In the present case, the review committee as well as task force appointed by the Ministry of Human Resource Development had found that there was undesirable trends in such IDUs, which need to be rectified. Therefore, in the interest of academic excellence, such directives have been issued. It cannot be said to be either arbitrary or violative of Article 14 of the Constitution.
50.In all these petitioners' cases, originally they were all self financing institutions running professional courses. They had voluntarily applied for the conferment of deemed university status. On being satisfied, the Central Government on the advise of the UGC had granted such status. The continuance of such institutions as IDUs depends upon the continuity of compliance of rules and regulations framed by the Government and the UGC. In the absence of any arbitrariness, it cannot contend that once status is given, they are entitled to have the status for all times to come. Such a stand can never be accepted by the court, especially when the petitioners are running educational institutions licenced by the UGC. Therefore, the UGC being a watchdog body is entitled to continuously impose conditions to make them as institutions of higher learning. Further the Trust or society as the case may be which applied for such grant of status as IDUs had willingly executed memorandum of association agreeing to abide by the instructions and guidelines issued from time to time by the UGC and they cannot wriggle out from their solemn commitment to carryout such directives. In a given case, even the established universities cannot defy the directives issued by the UGC as held by the Supreme Court in University of Delhi's case (cited supra). Having established an institution through trust or society, there is no concept of founder of the trust or the founder having power to bring his own family members. On the contrary, once a trust is established, the role of founder is not that of a Proprietor but to maintain the objectives and ideals for which the trust was formed. If the founder was happened to be a trustee, then he is only a trustee for the foundation and not proprietor of the said trust.
51.Most of the arguments and averments in the affidavits revolved around the fact that the founders have contributed amounts for creating the trust and depriving their role by the impugned regulations would amount to nullify the founder and his family and his close relatives from their involvement in running the IDUs. On the contrary, having established the trust, it is the trust which maintains the institution by perpetual succession and trustees are the guardian over the property. They have no vested right. The trust must continue to run the institution for the purpose for which it was originally established.
52.The argument based on proprietorial right clearly undermines the nature of institution that has been created. The intention of the trust or society to start or run a deemed university is for the purpose of running educational institutions of higher learning and not to have either direct or remote control over the said institutions. As found by the review committee, such control negatives the very purpose of learning and jeopardize the autonomy of the institution and bring an undesirable result. It is not as if by the impugned regulations the founder or his family members were totally excluded. On the contrary, the post of Chancellor was required to be held by an eminent educationist or a public figure. It is really unthinkable the petitioners should cast slur on the office holders of the post of Governor of a State and the Minister of Higher Education and to compare their role with that of a State established university. As noted already, there is vital distinction between the statutorily established university and an IDU conferring such status, as the uniersity is created by the legal fiction. The word "as if" found under Section 3 is clearly a fiction, though it was contended by certain senior counsels for petitioners that full meaning should be given so as to have all the attributes of universities.
53.In the present case, such a conferment of status does not take away their right and the impugned regulations are only regulating such right in the matter of composition of board of management having desirability of the office of Pro-Chancellor and requirement of Chancellor being eminent educationist or a public figure or not using suffix as University and not to start a new courses or out of campus centers. They were based upon the findings of the Committee, which showed that the purpose for the grant of such status has been totally eliminated and they brought commercialization nature of their functions. Therefore, the regulations have been made with a view to set a standard in higher education. It cannot be found fault with. It is not as if with the implementation of the impugned regulations the future of the deemed universities will be doomed. The argument made is in desperation. Far from any such catastrophe. It will only increase the prestige of such institutions. If one look into the creation of such universities such as Yale or Harward one can never see the founders families having say in such matters. They are run with professional expertise and headed by eminent educationists. Autonomous educational institutions run by the educationists patronized by philanthropists (individual or corporate) will alone go a long way in bringing academic excellence and they will churn out real human resource for the betterment of this nation.
54.The impugned regulations also gives options for the existing institutions to withdraw itself from the status of IDUs with prior permission of the Central Government. Such withdrawal has to take effect only after the last batch of students then enrolled pass out of the institution. Therefore, having opted to get the status under the relevant condition, the petitioners cannot wriggle out the conditions to maintain such status with academic excellence and to continue to have the status which are required for such institutions as constitutionally mandated by Entry 66 of List I of Schedule VII of the Constitution.
55.The argument that the properties will be taken over without the authority of law also cannot be countenanced. The State and the UGC are vitally instrumental in maintaining the institution as educational institution. In the event of such possibility not being available by IDU, then they are bound to step into the issue in the interest of teachers and students. Certainly it is not an action appropriatory in nature, but will be an action pregnant with public interest.
56.The further contention that they are entitled to add suffix to their name with the word "university" also does not stand to reason. By the impugned regulations, they have been made to mention that they are having deemed status which is a ground reality. By having the suffix, the word "university", the petitioners should not create an impression that they are established by acts of Parliament or legislature. The public must know the status of the institution. There is no loss of privilege under the provisions of the UGC Act. Their birth identity must be shown and there is no denial of any right of petitioners in describing themselves as deemed universities. It is their insistence to continue to have such suffix alone creates a doubt. It may be used as a ruse or to pass off to the general public that they are also universities established by the State or by the Parliament.
57.On the question of starting new departments or off campus or off-shore centres, certainly the UGC has vital interest in keeping track on the activities of deemed universities. The Supreme Court in Prof. Yashpal v. State of Chhattisgarh reported in (2005) 5 SCC 420 dealt with the Act of Chattisgarh State in creating private universities under executive orders and those institutions starting centres outside the State was frowned upon. Paragraphs 33,44, 45, 46, 58 of the judgment may be usefully extracted below:
33.The consistent and settled view of this Court, therefore, is that in spite of incorporation of universities as a legislative head being in the State List, the whole gamut of the university which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State Legislature on account of a specific entry on coordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which Parliament alone is competent. It is the responsibility of Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained.
44.As shown earlier, a university is a whole body of teachers and scholars engaged at a particular place in giving and receiving instruction in higher branches of learning; and as such persons associated together as a society or corporate body, with definite organisation and acknowledged powers and privileges and forming an institution for promotion of education in higher or more important branches of learning and also the colleges, building and other property belonging to such body. Other necessary attributes of a university are plurality of teachers teaching more than one higher faculties and other facilities for imparting instruction and research, provision for residence and must have certain standard of instruction providing for graduate and postgraduate levels of study....... When the Constitution has conferred power on the State to legislate on incorporation of university, any Act providing for establishment of the university must make such provisions that only an institution in the sense of university as it is generally understood with all the infrastructural facilities, where teaching and research on a wide range of subjects and of a particular level are actually done, acquires the status of a university......
45.... The subject university as a legislative head must be interpreted in the same manner as it is generally or commonly understood, namely, with proper facilities for teaching of higher level and continuing research activity. An enactment which simply clothes a proposal submitted by a sponsoring body or the sponsoring body itself with the juristic personality of a university so as to take advantage of Section 22 of the UGC Act and thereby acquires the right of conferring or granting academic degrees but without having any infrastructure or teaching facility for higher studies or facility for research is not contemplated by either of these entries. Sections 5 and 6 of the impugned enactment are, therefore, wholly ultra vires, being a fraud on the Constitution.
46. Entry 66 which deals with coordination and determination of standard in institutions for higher education or research and scientific and technical institutions is in the Union List and Parliament alone has the legislative competence to legislate on the said topic. The University Grants Commission Act has been made with reference to Entry 66 (see Prem Chand Jain v. R.K. Chhabra12 and Osmania University Teachers' Assn. v. State of A.P.8). The Act has been enacted to ensure that there is coordination and determination of standards in universities, which are institutions of higher learning, by a body created by the Central Government. It is the duty and responsibility of the University Grants Commission, which is established by Section 4 of the UGC Act, to determine and coordinate the standard of teaching curriculum and also level of examination in various universities in the country. In order to achieve the aforesaid objectives, the role of UGC comes at the threshold. The course of study, its nature and volume, has to be ascertained and determined before the commencement of academic session. Proper standard of teaching cannot be achieved unless there are adequate infrastructural facilities in the campus like classrooms, libraries, laboratories, well-equipped teaching staff of requisite calibre and a proper student-teacher ratio. For this purpose, the Central Government has made a number of rules in exercise of powers conferred by Section 25 of the UGC Act and the Commission has also made regulations in exercise of power conferred by Section 26 of the UGC Act and to mention a few, the UGC Inspection of Universities Rules, 1960, the UGC Regulations, 1985 ........ Such incorporation of a university makes it impossible for UGC to perform its duties and responsibilities of ensuring coordination and determination of standards. In the absence of any campus and other infrastructural facilities, UGC cannot take any measures whatsoever to ensure a proper syllabus, level of teaching, standard of examination and evaluation of academic achievement of the students or even to ensure that the students have undergone the course of study for the prescribed period before the degree is awarded to them.
58. ...... A university having no infrastructure or teaching facility of any kind would still be in a position to confer degrees and thereby create a complete chaos in the matter of coordination and maintenance of standards in higher studies which would be highly detrimental for the whole nation. A university may, therefore, be established by the State in exercise of its sovereign power which would obviously be through a legislative enactment. In the case of a private university it is necessary that it should be a pre-established institution for higher education with all the infrastructural facilities and qualities which may justify its claim for being conferred with the status of a university and only such an institution can be conferred the legal status and a juristic personality of a university.
Hence the case of the IDUs are no better.
58.Hence, it is for the petitioners to comply with the requirements demanded under the impugned regulations should they want to continue with the status as IDUs. Or else, they are better advised to opt out of the scheme. In effect, they cannot have the cake and eat it too.
59.In view of the above factual matrix and legal precedents, there is no case made out to interfere with the impugned regulations. Hence all the writ petitions will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.
vvk To
1.The Secretary, University Grants Commission, Bahadur Shah Jafar Marg, New Delhi-110 002.
2.The Joint Secretary, University Grants Commission, Bahadur Shah Jafar Marg, New Delhi-110 002.
3.The Secretary, Government of India, Ministry of Human Resource Development, Department of Higher Education, 128 'C' Wing, Shastri Bhavan, New Delhi-110 115.
4.The Chairman.
University Grants Commission, Bahadur Shah Jafar Marg, New Delhi 110 002