Karnataka High Court
Manipal Academy Of Higher Education (A ... vs State Of Karnataka And Others Etc. on 22 July, 1994
Equivalent citations: AIR1995KANT273, ILR1994KAR2159, 1994(3)KARLJ578, AIR 1995 KARNATAKA 273, (1994) 3 KANT LJ 578
ORDER Hakeem, J.
1. The constitutional validity of the notification dated 16-9-1993 declaring the petitioner-institution as an 'Educational Institution' under S. 2(c) of the 'Karnataka Educational Institutions (Prohibition of Capitation Fee) Act', 1984 (hereinafter referred to as 'the Act'), and the notification dated 16-9-1993, by which the 'Karnataka Selection of Candidates for Admission to Engineering, Medical, Dental, Pharmacy and Nursing Courses Rules', 1993 (hereinafter referred to as 'the Rules'), as amended, with special reference to Rule 2(b) of the (Second Amendment) Rules, is challenged in these petitions.
2. Two main questions that arise for consideration in these petitions are:--
(i) Whether the State has legislative competence to extend the provisions of the Act to the petitioner-institution (which is deemed to be an University for the purposes of the 'University Grants Commission Act', 1956) by the impugned notification issued under S.2(c) of the Act? And
(ii) Whether the said notification is ultra vires of S. 2(c) of the Act itself?
3. The petitioner is a registered charitable educational trust established, inter alia, to support and promote the advancement of educational activity as also to promote the language, art and culture of the Konkani speaking people. By the notification dated 1-6-1993 issued by the Government of India, Ministry of Human Resources Development, Department of Education, New Delhi, in exercise of the powers conferred by S. 3 of the University Grants Commission Act, 1956 ('the U.G.C Act'), the Central Government, on the advice of the University Grants Commission, declared the petitioner-Trust consisting of the following educational institutions at Manipal and Mangalore, Dakshina Kannada District of Karnataka State, as 'Deemed University' for the purposes of the U.G.C. Act. The institutions so declared to be Deemed to be a University under the petitioner are:--
(a) Kasturba Medical College, Manipal and Associated Teaching Hospitals, Manipal;
(b) College of Dental Surgery, Manipal;
(c) College of Nursing, Manipal;
(d)Kasturba Medical College and Associated Teaching Institutions, Mangalore; and
(e) College of Dental Surgery, Mangalore.
The above colleges, among others, were originally established and administered earlier by 'Dr. T.M.A. Pai Foundation', Manipal, a registered Charitable Trust with similar objectives, which has been declared by a Division Bench of this Court to be a Linguistic Minority Institution, entitled to protection under Art. 30 of the Constitution of India, the same having been established by and for the benefit of Konkani speaking linguistic people of Karnataka. According to the petitioner as far back as in the year 1975, the predecessor-in-interest of the petitioner (supra) had initiated the process, by filing an application before the University of Mysore, to which the said institutions were then affiliated, for a 'No Objection' Certificate for declaration of the said Academy and Institutions as a Deemed University under the provisions of the U.G.C. Act. The University Grants Commission having considered the report of the Inspecting Committee and the 'no objection' granted by the University of Mysore at its meeting held on 31-1-1977, resolved to recommend to the Central Government for grant of such status to the institutions run by the Academy, including Engineering Colleges, under S. 3 of the U.G.C. Act. The said recommendation was not accepted by the Central Government due to paucity of funds. The matter once again having come up for consideration by the University Grants Commission and the Government of India in the light of revised guidelines issued by the latter for granting the status of Deemed University, a Committee constituted by the U.G.C. visited 'Dr. T.M.A. Pai Foundation' and its various institutions in September, 1992. Apparently, being satisfied with the infrastructure and facilities available and the high standard of education being imparted in the said institutions, recom mended to the U.G.C. for grant of status of a Deemed University collectively to all the said institutions. In pursuance thereof, the U.G.C. at its meeting held on 15-10-1992, having considered the report of the said Inspection Committee resolved to recommend to the Government of India to declare the Manipal group of Educational Institutions as 'Deemed to be University' under S. 3 of the U.G.C. Act.
Thereafter, the matter having been consi dered at different levels by the Government of India and the U.G.C., and on the petitioner-
Trust being established on 19-5-1993 on the advice of the U.G.C., the Central Govern ment issued a notification dated 1-6-1993 declaring the petitioner, constituting the aforesaid 5 institutions (a) to (e) referred to at paragraph 3, to be a University for the purpose of the U.G.C. Act.
In 'Unni Krishnan v. State of A.P.', , the Supreme Court has formulated a scheme (guidelines) and directed each State to give them statutory shape. This scheme, according to the petitioner, is not applicable to a Deemed University. Pursuant to the said directions, the State of Karnataka has framed rules under the Act which were brought into force with effect from 10-3-1993. The constitutional validity of the said notification was challenged by the said Dr. T.M.A. Pai Foundation in Civil Writ Petn. No. 317 of 1993 before the Supreme Court under Art. 32 of the Constitution of India, inter alia, on the ground that the rules violate their fundamental rights guaranteed under Arts. 29 and 30 of the Constitution. The matter has been pending consideration before the Supreme Court.
On 22-9-1993, the Supreme Court permitted the five institutions, represented by the petitioner, to withdraw the petition in so far as those institutions are concerned since they formed a different class (having been granted the special status of a Deemed University), with leave to challenge the inclusion of a 'Deemed University' under the Act and the Rules. On the State Government insisting upon the petitioner to accept the students allotted by them in accordance with the scheme suggested by the Supreme Court in the case of Unni Krishnan (supra), the petitioner preferred W.P. No. 28671 of 1993 to restrain the State from interfering with the petitioner's right to manage its own affairs in the matter of regulating the admission of students to its institutions and for other reliefs. It is pertinent to mention here that having regard to the fact that a good deal of academic year had passed and the grant of status as 'Deemed University' in favour of the petitioner having resulted in complexities, in order to protect the imercst of the students (allottees), the Supreme Court passed an order dated 26-11-1993 in S.L.P. (Civil) No. 17206 of 1993, arising out of the interim order passed by this Court in the instant writ petition, i.e., W.P. No. 33851 of 1993, to admit a number of students only in respect of the academic year 1993-94 as a purely ad hoc measure. It is observed therein that the implementation of the order and the supervision in relation to each of the matters mentioned therein, shall be done by the Secretary for Education, Government of Karnataka. The said order came to be modified subsequently by restricting the number of admissions to be made by the petitioner to 180 out of 200 for the said year. In a subsequent order dated 12-1-1994 in the said appeal, having taken notice of the conferment of the status of Deemed University upon the petitioner and partial withdrawal of their writ petition to the extent of the seats which came within the purview of 'Deemed University', the Supreme Court has stated thus at paragraph 9 of the order:--
"The Secretary, Education Department, Government of Karnataka shall ensure faithful implementation of the above directions and shall be competent to issue necessary directions for the purpose which shall be binding upon the petitioner. We would like to make it clear once again that these orders are peculiar to this year, made in the prevailing circumstances and exigencies. So far as the next year is concerned, appropriate orders shall be passed later.
Before parting with this matter, we must refer to the fact that when we asked the U.G.C. to determine the fee payable by the students of these two colleges, they came up with a figure of Rs. 1.75 lakhs per annum. We have perused the manner in which they have arrived at the figure. It is stated that the said figure was arrived at on the basis of facts and figures relating to expenditure etc., supplied by the petitioner/institutions. On a perusal of their work-sheet and approach adopted, we are not satisfied with the exercise done by the U.G.C. The same is rejected."
4. We have referred to the aforesaid proceedings of the Supreme Court only to meet one of the contentions advanced on behalf of the State to the effect that the petitioner had withdrawn their contentions herein regarding their challenge to the inclusion of their institution for the purpose of applying the Act and the Rules. In other words, the stand taken by the petitioner and the contentions urged herein against the application of the Act and the Rules to their institution is kept open.
5. Meanwhile, by its notification dated 16-9-1993 (Annexure-A1), the State of Karnataka, in exercise of the purported powers conferred under S. 14 of the Act, inter alia, amended the definition of the 'University' under clause (s) of Rule 2 to include an Educational Institution declared as a Deemed to be University by the Government of India under Sec. 3 of the U.G.C. Act. Simultaneously, they issued another notification of even date (Annexure-A) specifying the Manipal Academy of Higher Education consisting of the 5 colleges, as an 'Educational Institution' for the purpose of the Act.
6. Sri Kapil Sibal, learned senior counsel for the petitioner, urged the following contentions :--
(1) The latter part of the definition 'Educational Institution' under S. 2(c) of the Act is ultra vires the definition itself since the main definition relates only to the institutions carrying on the activity of imparting education in Medicine or Engineering leading to a Degree conferred by an University established under the Karnataka State Universities Act, 1976;
(2) Even otherwise, the latter part of the said definition interpreted in the manner as suggested by the State would render the same meaningless;
(3) Interpretation of any provision and especially the provision in question should not lead to the situation of treating unequals equally, especially having regard to the special nature and status of the institution imparting higher education as recognised by the U.G.C. and the Central Government under the U.G.C. Act;
(4) The definition of the Educational Institution under S. 2(c) of the Act being confined only to Medicine and Engineering leading to a degree by an University established under the Karnataka State Universities Act, 1976, the expression "any other Educational Institution or classes of such Institution" in the latter part can necessarily have reference only to the earlier part of the definition and cannot be extended to any other Educational Institution imparting education in any other discipline. Hence, the power of the State to apply the provisions of the Act is confined only to institutions contemplated under the first part of the definition;
(5) The definition of the University under Rule 2(s) of the Rules as it originally stood was confined only to the University established under Karnataka Act 28 of 1976. In the absence of any amendment to S. 2(c) of the Act, the inclusion of the Deemed University under Rule 2(s) is repugnant to the provisions of the U.G.C. Act, and hence, void.
7. The Act was brought in to prohibit the collection of capitation fee for admission to educational institutions in the State of Karnataka and matters relating thereto. The Act having received the assent of the President on 20-7-1984, is deemed to have come into force on 11-7-1983.
"Educational Institution" defined as per S. 2(c) reads as under:--
'"educational institution' means any institution by whatever name called, whether managed by Government, private body, local authority, trust, University or any other person carrying on the activity of imparting education in medicine or engineering leading to a degree conferred by a University established under the Karnataka State Universities Act, 1976 (Karnataka Act 28 of 1976) and any other educational institution, or class or classes of such institution, as the Government may, by notification, specify."
Under S. 10, the Act or the Rules or orders made thereunder are not applicable to any minority institution to the exfent to which they are inconsistent with the rights guaranteed under Art. 30 of the Constitution of India. Under S. 12, the Act has overriding effect upon any other laws for the time being in force. Section 14 confers the rule making power upon the Government for carrying out all or any of the purposes of the Act. The Rules are thus framed under the Act.
It is pertinent to note some of the definitions in the Rules which are relevant for the purpose. The term "institution" is defined as under:--
' "Institution" means any institution or college affiliated to an University in Karnataka and carrying on the activity of imparting education in Engineering Technology (including Electronics, Computer Science and Textiles), Medicine or allied subjects such as Dental Surgery, Nursing and Pharmacy leading to a Degree conferred fey the University.' Rule 2(s) as substituted by the impunged notification reads thus:--
" 'University' means an University established under the Karnataka State Universities Act, 1976 (Karnataka Act 28 of 1976) and includes an Educational Institution declared as a Deemed to fee University by the Government of India under S. 3 of the U.G.C. Act, 1956 (Central Act 3 of 1956) and notified by the State Government under S. 2(c) of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984."
8. It is not disputed that the Act is passed by the State Legislature by virtue of the powers under Entry 25 of the Concurrent List in the Seventh Schedule, which reads thus:--
"25. Education, incluidng technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."
It is not in dispute that Entry 25 originally constituted Entry 11 in the State List and the same having been omitted therein, was brought into the concurrent list by way of substitution by the Constitution (Forty-second Amendment) Act, 1976, with effect from 3-1-1977. As stated earlier, the Act was submitted for the assent of the President, which was accorded on 20-7-1984 in accordance with the provisions of Art. 254(2) of the Constitution. However, it is conceded by the learned Advocate General that the entire Act did not, in fact, require assent of the President and the same is referable only to the provisions of Ss. 7 and 11 thereof being penal provisions which may otherwise be repugnant to the provisions of the Criminal Procedure Code. The relevant file pertaining to the same was produced for our perusal which clearly affirms the said position. The resultant position, therefore, is that in so far as the other provisions are concerned, including S. 2(c), there is no Presidential assent, since, according to the learned Advocate General, it was unnecessary in view of the competency of the State Legislature to legislate the same.
9. The contention of Sri Kapil Sibal, learned counsel for the petitioner, is that since admittedly no Presidential assent is obtained, the inclusion of 'Deemed University' by substitution of clause (s) of the Rules in the definition of 'University', and the notification declaring the petitioner to be an 'Educational Institution' for the purpose of the Act is prima facie repugnant to Entry 66 of the First List (in the Seventh Schedule to the Constitution) and the provisions of the U.G.C. Act passed by the Parliament by virtue of the powers exclusively reserved thereto under Entry 66 of the First List.
10. It is submitted that, in any event, the State has no power either under Entry 32 of the Second List or Entry 25 of the Third List to include a Deemed University, declared as such by the Central Government under S. 3 of the U.G.C. Act, within the purview of the definition of 'Educational Institution' under S. 2(c) of the Act, muchless by way of an executive order enlarging the definition of. 'University' under Rule 2(s) of the Rules.
Tt is well settled that 'repugnancy arises when two enactments, both within the competence to two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other, then to the extent of the repugnancy the one supersedes the other. But, two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for, if a competent Legislature with a superior efficacy expressly or impliedly evinces by its ligislation an intention to cover the whole field, the enactments of the other Legislature, whether passed before or after, would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation' (vide : State of Orissa v. M.A. Tulloch & Co., ).
11. In 'Gujarat University v. Shri Krishna', , dealing with the scope and ambit of Entry 66 of List I, vis-a-vis Entry 11 of List II (later deleted and re-incorporated as Entry 25 in List III), the Constitution Bench has stated thus:--
"..... Item 11 of List II and Item 66 of List I must be harmonioulsy construed. The two entries undoubtedly overlap: but to the extent of overlapping, the power conferred by Item 66, List I must prevail over the power of the State under Item 11 of List II. It is manifest that the excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, sciences, technology and vocational training of labour.
XXX XXX XXX ..... The validity of the State legislation on
University education and as regards the education in technical and scientific institutions not falling within Entry 64 of List I would have to be judged having regard to whether it impinges on the field reserved for the Union under Entry 66. In other words, the validity of State legislation would depend upon whether it prejudicially affects coordination and determination of standards, but not upon the existence of some definite Union legislation directed to achieve that purpose. If there be Union legislation in respect of co-ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art. 254(1); even if that power be not exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid .....
..... Item No. 66 is a legislative head and in interpreting it, unless it is expressly or of necessity found conditioned by- the words used therein, a narrow or restricted interpretation will not be put upon the generality of the words. Power to legislate on a subject should normally be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in that subject. Again there is nothing either in Item 66 or elsewhere in the Constitution which supports the submission that the expression "co-ordination" must mean in the context in which it is used merely evaluation; co-ordination in its normal connotation means harmonising or bringing into proper relation in which all the things co-ordinated participate in a common pattern of action. The power to co-ordinate, therefore, is not merely power to evaluate, it is a power to harmonise or secure relationship for concerted a action. The power conferred by Item 66, List I is not conditioned by the existence of a state of emergency or unequal standards calling for the exercise of the power."
With this settled position of law, we may now examine the relevant provisions of the U.G.C. Act and the validity of the relevant provisions of the Act and the Rules.
12. The U.G.C. Act is enacted by the Parliament by virtue of its power under Entry 66 of the First List of the Seventh Schedule. The relevant portions of the Statement of Objects and Reasons for enacting the same read thus:--
"The Constitution of India vests Parliament with exclusive authority in regard to 'co-ordination and determination of standards in institutions for higher education or research and scienlific and technical institutions.' XXX XXX XXXL The Commission will act as an expert body to advise the Central Government on problems connected with the co-ordination of facilities and maintenance of standards in Universities.....
While the provisions of the Bill do not apply to institutitions of higher education which are not Universities, power is vested in the Central Government to declare any institution for higher education to be a University for the purposes of this Bill by issuing a notification in the Official Gazette."
Section 2(f) of the U.G.C. Act defines 'University' to mean a University established or incorporated by or under a Central Act, a Provincial Act or a Stale 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 3, deals with the application of the Act to institutions for higher education other than the Universities, which reads thus:--
"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."
(Underlining by us)
13. Chapter III in the U.G.C. Act deals with the powers and functions of the Commission. The relevant provisions therein are extracted hereunder:--
"12. Functions of the Commission: -- It shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, 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, and for the purpose of performing its functions under this Act, the Commission may-
xxx xxx xxx xxx (cc) allocate and disburse out of the Fund of the Commission, such grants to institutions deemed to be Universities in pursuance of a declaration made by the Central Government under Section 3, as it may deemed necessary, for one or more of he following purposes, namely:
(i) for maintenance in special cases,
(ii) for development,
(iii) for any other general or specified purpose:
xxx xxx xxx xxx
(j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions."
14. The specified stand of the petitioner is that a Deemed University declared under Section 3 of the Act conies directly under the supervision and control of the Commission, inter alia, for the purpose of performing its functions by virtue of its power vested under Section 12, which would necessarily include its function pertaining to admission and regulation of the fees and other ancillary matters.
15. Section 12A inserted by the University Grants Commission (Amendment) Act, 1984 (with effect from 1-10-1984) specifically provides for regulation of fees and prohibitions of donations in certain cases. While, according to the learned Advocate General, this section is incorporated by the Parliament by virtue of Entry 25 of the concurrent list; the stand taken by Sri Kapil Sibal is that while Section 12 deals exclusively with the Commission's powers and functions in relation to a University (including a Deemed University), Section 12A pertains to 'Colleges' affiliated to or managed by the Universities. In other words, the section deals with the matters not covered by Section 12, which is clear from sub-section (2) of Section 12A which reads thus:-
"Without prejudice to the generality of the provisions of Section 12 if, having regard to -
(a) the nature of any course of study for obtaining any qualification from any University;
(b) the types of activities in which persons obtaining such qualification are likely to be engaged on the basis of such qualification;
(c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring, so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study; and
(d) all other relevant factors, the Commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the University or Universities concerned, specify by regulations the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such date as may be specified in the regulations in this behalf, by any college providing for such course of study from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study:
Provided that different matters and different scales of fees may be so specified in relation to different Universities or different classes of colleges or different areas.
(3) Where regulations of the nature referred to in sub-section (2) have been made in relation to any course of study, no college providing for such course of study shall-
(a) levy or charge fees in respect of any matter other than a matter specified in such regulations;
(b) levy or charge any fees in excess of the scale of fees specified in such regulations, or
(c) accept, either directly or indirectly, any payment (otherwise than by way of fees) or any donation or gift (whether in cash or kind), from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study.
(4) If, after making, in relation to a college providing for a specified course of study, an inquiry in the manner provided by regulations, and after giving such college a reasonable opportunity of being heard, the Commission is satisfied that such college has contravened the provisions of sub-section (3), the Commissison may, with the previous approval of the Central Government, pass an order prohibiting such college from presenting any students then undergoing such course of study therein to any University for the award of the qualification concerned."
16. A perusal of the provisions of Section 12A makes it clear that the regulations referred to therein are mainly and essentially in relation to a "College" as defined under Clause (1)(b) of the same section. Tn this connection, a reference is made to certain provisions under Chapter IV of the U.G.C. Act. Under Section 21, the Commission is to be guided by such directions on questions of policy relating to national purposes as may be given by the Central Government. Section 22 refers to the exclusive right of conferring degree by an University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees. The contention of the learned Advocate General is that the provisions of Section 12 with reference to an University should be read in the context of Section 22, which is applicable to every University, including a Deemed University and any constitutent colleges thereof. It is, however, difficult to accept this contention in the light of the Notification dated 1-6-1993 declaring Manipal Academy of Higher Education (petitioner herein) constituting the five Institutions as Deemed University and the specific directions of the Central Government subject to which a Deemed University status granted to the petitioner, which read as under:--
"The grant of Deemed to be University status to the Manipal Academy of Higher Education is subject to the following conditions:--
(a) The Campuses are to be restricted to Manipal and Mangalore. The provision in the MOA regarding setting up of Campuses outside Manipal and Mangalore, whether within the country or outside the country, shall be deleted;
(b) The proposal of multi-Campuses of the Deemed to be University is not approved;
(c) A general clause to the effect that amendment to the MOA and the Rules will require prior approval of the Government of India will be inserted in the said MOA and the Rules;
(d) The Academy will not charge Capitation Fee from the students and the tuition fee to be charged from the students for pursuing the professional courses should be as prescribed on the recommendation of an Expert Committee appointed in consultation with the UGC;
(e) The Rules framed under clauses 11, 12 and 18 being at variance with UGC model MOA and Rules are not approved. These Rules will be finalised in consultation with UGC and the approval of the Government of India at the earliest. The Finance Committee would have a representative of the UGC as well as of the Central Government, Planning and Monitoring Committee would provide for the representation of the UGC."
17. It is pointed out that the grant of the special status as Deemed University and the directions extracted above have culminated after considerable deliberations by the Central Government and the U.G.C. For the purpose of illustrating the above position, we may refer to certain documents forming part of the record relied upon by the petitioner. The earliest Resolution of the Committee appointed by the U.G.C. refers to the granting of Deemed University status to the Manipal Academy Complex of University Level Institutions and recommending to the Central Government, that the Manipal Educational Complex constituting of its colleges in Medical and Engineering Sciences be declared as an Institution deemed to be University under Section 3 of the U.G.C. Act. This recommendation was, however, rejected by the Central Government due to scarcity of funds, as per their letter dated 8-2-1978. This was followed by some correspondence. We " may refer to the letter of the Academy dated 28-4-1980, inter alia, for a the purpose of finding as to how the parties treated the various constituent institutions. The relevant portion reads thus:--
"The Manipal Educational Complex can raise sufficient resources for maintenance of its institutions, if the admission of foreign and Indian students in these institutions is fixed in the ratio of 60 : 40. If the above condition is implemented, the Academy of General Education, Manipal, would meet the entire costs of maintenance budget of the Complex without seeking maintenance grants from the Central Government or the University Grants Commission."
18. The letter dated 2-4-1991 by the U.G.C. to the Registrar, Academy of General Education, Manipal, requiring an undertaking to the effect that the colleges included in the proposal are not charging and will not charge capitation fee after conferment of the status of Deemed University. Such undertaking was, in fact, given which was taken into consideration for the purpose of granting the status of a Deemed University.
19. By its letter dated 20-11-1992, the U.G.C. has given extract of its suggestions made by the Committee to the Central Government which includes the suggestions regarding admission to the institution and the undertaking to follow the guidelines laid down by the U.G.C. in that regard. It is pertinent to note that one of the suggestions relating to charging of Tuition Fees for the professional course as prescribed by the State Government was not accepted by the Central Government. This fact is clear from the omission thereof in the directions subject to which the Notification dated 1-6-1993 was issued.
20. By its letter dated 6/7-4-1993, the U.G.C. has indicated certain clauses to be incorporated in the Memorandum of Association of the petitioner as per suggestions of its Expert Committee which had gone into the matter. A reference may be made to few such suggestions, including provisions to be made for a nominee of the U.G.C. or the Central Government in the Finance Committee as per the U.G.C. Model MOA; the clause regarding prohibition against charging of capitation fee in any form in consideration for admission; and that, fee should be prescribed on the recommendations of an Expert Committee in consultation with U.G.C. Clause 38 pertaining to alteration and amendment under the Rules of the institution become effective only on the receipt of concurrence of the Government of India.
21. Clause 39 pertaining to Funds, Audits and Annual Report reads as under:--
"39. Funds," Audits and Annual Report:--A provision be made as in the UGC model MOA that annual reports and the audited report shall be submitted to the Govt. of India within 9 months of the closure of the accounting year for the purpose of being laid down the table of the Parliament.
A provision be also made that "its annual financial statement and annual accounts should be audited by the CAG of India through the Accountant General of the State concerned and not by the Auditors appointed by the Board of Management as provided in the MOA sent to the Commission."
22. An Expert Committee is nominated in consultation with the U.G.C. for fixing the tuition fee to be charged from the students for pursuing the professional course in the petitioner-Academy as required under para 3(d) of the Notification No. F-9-8/89-U3, dated 1-6-1993, issued by the Government of India, Ministry of Human Resources and Development, Department of Education, New Delhi, and as per Rule 36.2 of the MOA of the Manipal Academy of Higher Education. None of the four representatives in the said Expert Committee includes any representative of the State Government. In addition to the specific prohibition against charging of capitation fee, it is provided that "the tuition fee of students shall be prescribed on the recommendation of the Expert Committee (appointed in consultation with the U.G.C.) taking into account the various inputs required, non-recurring and recurring, so as to maintain high standards of instruction in different course/disciplines/institutions". There is some correspondence referring to the commitment given by the Government of India for admission of foreign students in the M.B.B.S. course up to 50% of the intake capacity. This according to the learned Counsel for the petitioner, is referable to the power of the Central Government under Section 20 of the U.G.C. Act to issue directions on questions of policy relating to national purposes. It is thus contended by the Counsel that the petitioner -- a Deemed University, to which the relevant provisions of the U.G.C. Act are applicable is wholly under the control of the U.G.C. and subject to its directions or guidelines and, as such, the State cannot impose the Rules upon it by virtue of the Notification purporting to include a "Deemed University" within the definition of Educational Institution'.
23. In this connection, a further reference may be made to the Memorandum of Association for Manipal Academy of Higher Education, as approved by the U.G.C. According to Clause 3 thereof, the existing colleges located in different Campuses in Manipal and Mangalore are required to be organised into the relevant faculties/ departments. Clause 3.12 provides that all admissions will be made as per the guidelines of UGC/AICTE/MCI and other necessary stautory bodies. Under Clause 42, the Academy will follow all the guidelines of the U.G.C. issued from time to time in its functioning.
24. In this connection, reference may also be made to the revised guidelines (1992) laid down by the U.G.C. for declaring an institution as 'Deemed to be an University' under Section 3 of the U.G.C. Act. All the institutions Deemed to be Universities, numbering 32, including the petitioner, are listed therein in addition to Institutes of National Importance, such as All India Institute of Medical Sciences, which are established and recognised as such under the U.G.C. Act by the Central Government. It is not disputed that, except the petitioner, which is listed at Sl. No. 32, none of the other institutions which are Deemed to be Universities under the U.G.C. Act are subject to any State Act, Rules or guidelines by the States in which they are situated. In the circumstances, the contention urged on behalf of the State that all the Educational Institutions, including the Deemed Universities if located within the territories of the State of Karnataka, are governed and subject to the Act and the Rules, appears to be far-fetched. In our opinion, the location of the institution, ipso facto, cannot be the criteria to attract the provisions of the Act and the Rules. In the instant case, it is clear that since specified guidelines and provisions pertaining to all relevant aspects for the purpose of performing its functions, including fixation of the scale of the fee and other matters are provided under the U.G.C. Act, it is difficult to hold that the Act and the Rules can be made applicable to the petitioner.
25. The learned Advocate General sought to rely upon the decisions in 'State of Madhya Pradesh v. Nivedita Jain', , followed in 'Ajay Kumar Singh v. State of Bihar, (1994 (2) SCALE, (sie) : 1994 AIR SCW 2515), for the proposition that the U.G.C. Act would be applicable to all the Universities, including the Deemed University only in so far as the "co-ordination and determination of standard in institutions for higher education or research and scientific and technical institutions" coming within the purview of Entry 66 of List I. But in so far as the admission, fee and other aspects are concerned, the State has the power under Entry 25 to legislate if such University is located within the territories of the State. In the first case, the Court has held that a certain Regulation made by the Indian Medical Council is merely directory and does not have any mandatory force. Dealing with the scope of Entry 66 List I to the Constitution in that eonlexl, the Court has stated thus:--
"Entry 66 in List I (Union List) of the 7th Schedule to the Constitution relates to 'coordination and dctcrmiantion of standard in institutions for higher education or research and scientific and technical institutions'. This entry by itself does not have any bearing on the question of selection of candidates to the Medical Colleges from amongst candidates who are eligible for such admission. On the other hand, Entry 25 in List III (Concurrent List) of the same Schedule speaks of --"education, including technical education, medical education in Universities subject to Entries 63, 64, 65 and 66 of List I .....
vocational and technical training of labour". This entry is wide enough to include within its ambit the question of selection of candidates to medical colleges and there is nothing in the Entries 63, 64 and 65 of List I to suggest to the contrary. We are, therefore, of the opinion that Regulation 11 of the Council which is merely directory and in the nature of a recommendation has no such statutory force as to render the order in question which contravenes the said regulation illegal, invalid and unconstitutional."
26. In Ajay Kumar Singh (supra), agreeing with the said statement, the Supreme Court has stated thus:--
"We are inclined to agree with the above statement. The power to regulate admission to the courses of study in medicine is traceable to Entry 25 in List III. (Entry 11 in List II, it may be remembered, as deleted by the 42nd Amendment to the Constitution and Entry 25 of List III substituted). The States, which establish and maintain these institutions have the power to regulate all aspects and affairs of the institutions except to the extent provided for by Entries 63 to 66 of List I ..... While Regulation of admission to these medical courses may be incidental to the power under Entry 66 List I, it is integral to the power contained in Entry 25, List III. The State which has established and is maintaining these institutions out of public funds must be held to possess the power to regulate the admission policy consistent with Art. 14. Such power is an integral component of the power to maintain and administer these institutions. Be that as it may, since we have held, agreeing with the holding in Nivedita Jain that Entry 66 in List I does not take in the selection of candidates or regulation of admission to institutions of higher education, the argument of Sri Salve becomes out of place. The States must be held perfectly competent to provide for such reservations.
(Underlining by us)
27. Referring to the fact situtation in Nivedita Jain's case it is stated thus: --
"..... A perusal of the judgment in Nivedita Jain shows that the minimum eligibility marks prescribed for general candidates for admission to M.B.B.S. was 50 whereas for Scheduled Castes/Scheduled Tribes candidates it was 40 marks. During a particular year, it so happened thai even after relaxing the minimum eligibility marks by 5%, Scheduled Castes/Scheduled Tribes candidates were not available in adequate number to fill the seats reserved tor them. It was in such a situation that the Government resorted to the exceptional step of removing the minimum required marks altogether for that year in exercise of power of relaxation. It was not done on permanent basis. Be that as it may, we are of the opinion that Entry 66, List I ought not to be construed in isolation. It must be read along with Entry 25 in List 111. Entry 25, as substituted by the 42nd (Amendment) Act, reads: "Education including technical education, medical education and Universities subject to the provisions of Entries 63, 64, 65 and 66 of List 1; vocational and technical training of labour." The subject-matter of education including medical education is thus in the concurrent list. Only a portion of it in so far as it falls under Entries 63 to 66 of List I has been scooped out of it and placed in List I. But this only means that we should properly delineate the field occupied by Entries 63 to 66 of List I to find out how much is taken away form out of Entry 25. Whenever a question arises whether a particular Legislation made by the State with reference to Entry 25 impinges upon the aforesaid entries in List I, one has to apply the doctrine of pith and substance to determine whether the Act impinges upon the field reserved to the Parliament....."
Further, in paragraphs 27 to 29, it is stated thus :--
"In our opinion, the situation in the case before us is no different. The State will regulate the admission policy and at the same time adhere to the standards determined by the Indian Medical Council.
Reference in this connection may also be made to another well-settled principle affirmed in Calcutta Gas Co. v. State of West Bengal , to wit: "every "attempt should be made to harmonize the apparently conflicting entries not only of different Lists but also of the same Lists and to reject that construction which will rob one of the entries of its entire content and make it nugatory." This principle applies equally to a case where an entry in List II is made subject to an Entry in List I. The concerned entry in List I should not be so construed as to rob the relevant entry in List II or I ist III of all its content and substance. It is only when it proves not possible to reconcile the entries that the non obstante clause "notwithstanding anything in clauses (2) and (3)" occurring in Art. 246(1) has to be resorted to. Applying the aforesaid rules, we must hold that regulation of admission of students subject to post-graduate medical courses falls outside the purview of Entry 66, List I, which means that it continues to inhere the Entry 25 of List III.
Even if one relates the Indian Medical Act to Entry 25 of List III in addition to Entry 66 of List I, even then the position is no different -- for the Indian Medical Act does not purport to regulate the admissions or admission policy to post-graduate medical courses. The field is thus left free to be regulated by the Stale. The State can make a law or an executive rule, in this case it has chosen to make an executive rule."
28. In both the aforesaid cases, the question was whether the guidelines given by the Indian Medical Council established under the Indian Medical Council Act, 1956 by the Parliament with reference of Entry 26 of List III concern with the determination and coordination of standard of education and training in medical institution, the courses of study and examination to be undergone to obtain the recognised medical qualification.
It is held that they do not speak of admission to such courses prescribing the minimum standard of medical education and the direction by the Indian Medical Council is found to be only advisory in nature and not of a binding character. As such, the power of the State, which has established and maintained those institutions includes the power to regulate all affairs of the medical institutions except to the extent provided for by Entry 63 to 66 of List I of the Seventh Schedule.
29. It is, therefore, rightly urged by Sri Kapil Sibal that the ratio of the said decisions is not attracted to the instant case where the question is entirely different, concerning a Deemed University declared as such by the Central Government to be regulated under the provisions of the U.G.C. Act, inter alia, as provided under Section 12 of the U.G.C. Act. The Regulations and guidelines subject to which the Deemed University status is granted to the petitioner would, therefore, cover all the relevant functions to be performed by the Deemed University, including the matters which are now sought to be regulated by the State under the Act and the Rules by including the Deemed University within the definition of the term "Educational Institution."
30. An answer to the second question turns upon the interpretation to be given to Section 2(c), particularly with reference to the latter portion of the definition of the term "Educational Institution". While in the first part, the terms specifically relates to any institution, by whatever name called, whether managed by Government, private body, local authority, trust. University or any other person carrying on the activity of imparting education in medicine or engineering leading to a degree conferred by a University established under the Karnataka State Universities Act, the latter part 'relates to any other educational institution, or class or classes of such institution, as the Government may, by notification, specify. The controversy in the instant case pertains only to the interpretation to be given to the latter part. The State, having included 'Deemed University' by way of an amendment in the definition of 'University' in Rule 2(s) of the Rules by virtue of its purported rule making power under Section 14 of the Act, seeks to include the petitioner -- a Deemed University (declared as such by the Central Government under Section 3 of the U.G.C. Act) under the impugned notification. The contention of the petitioner is that the expressions 'any other educational institution' and 'such institution' should be read in the context of the meaning specifically assigned to the said expression in the main part of the definition. If that view is accepted, the latter portion of the definition would become otiose and meaningless since whatever is sought to be covered is contained in the first portion of the said definition itself. In view of the settled law regarding construction of any statutory provision, it is not possible to agree with the said contention. "The cardinal rule of construction of statutes is to read with the statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt ordinary rule of literal interpretation" (see 'Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376 (381) : 1955 SCR 1369. It is further well settled that in the construction of statutes, their words must be interpreted in their ordinary grammatical sense unless there be something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in a special sense different from their ordinary grammatical sense. On a careful reading of the said provision in the context of the object, it seems to us that in the present case, the literal construction leads to no apparent absurdity and there is no reason for departing from the rule of construction. Having regard to the avowed object of the Act, a meaningful interpretation has to be given to the latter part which, in our considered opinion, would mean and include any educational institution or class or classes of such institution other than the specific category referred to in the first part, (viz., institutions imparting education in medicine or engineering leading to a degree conferred by a University established under Karnataka Act 28 of 1976). Thus, the Government may include institutions imparting education, not necessarily in the field of higher education. In this connection, by way of illustration, reference may be made to an earlier notification dated 15-5-1985 issued by the State Government in exercise of the power conferred under clause (c) of Section 2(c) of the Act, specifying the following educational institutions as 'Educational Institutions' for the purpose of the said section:--
(i) Pre-Primary Schools;
(ii) Primary Schools;
(iii) High Schools;
(iv) Teacher Training Institutes (T.T.I.);
(v) Certificate of Physical Education (C.P.Ed.,); (vi) Nursery Teacher Training Institutes; (vii) Junior Colleges Teaching Pre-University Education; (viii) Degree Colleges; (ix) Bachelor of Education Colleges (B.Ed.,); (x) Bachelor of Physical Education Colleges (B.P. Ed.)
Hence, the intention of the Legislature is to bring within the purview of the Act any other educational institutions, inter alia, of the types mentioned in the aforesaid notification. In that view of the matter, it is not possible to hold that the latter portion of the definition is ultra vires of the main definition or that it would render the same meaningless. However, in the view we have taken on the basis of the interpretation of Entry 66 of List I vis-avis Entry 25 of List III, it has to be held that the inclusion of Deemed University within the purview of the definition of 'University' under the Rule 2(s) of the Rules and the impugned notification extending the Act to the petitioner -- a Deemed University, is ultra vires of Section 2(c) of the Act and Entry 66 of List I of the Seventh Schedule of the Constitution of India.
31. In the result, the writ petitions are allowed. Rule made absolute. The amended Rule 2(s) of the Karnataka Selection of Candidates for Admission to Engineering, Medical, Dental, Pharmacy and Nursing Courses Rules, 1993, in so far as it purports to include a 'Deemed University' within the definition of 'University' and the Notification bearing No. ED 87 TA SE VI 93, dated 16-9-1993 are held to be ultra vires Section 2(c) of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 and hence invalid and unenforceable against the petitioner. Consequently, the 1st respondent is restrained from giving effect to the said Notification as against the petitioner. Petition allowed.