Sarvoday Kelavni Samaj & vs State Of Gujarat & 2 on 30 October, 2015

[Cites 19, Cited by 0]

Gujarat High Court

Sarvoday Kelavni Samaj & vs State Of Gujarat & 2 on 30 October, 2015

Equivalent citations: AIR 2016 (NOC) 243 (GUJ.)

Bench: Abhilasha Kumari

                  C/SCA/11372/2014                                           CAV JUDGMENT




                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         SPECIAL CIVIL APPLICATION NO. 11372 of 2014



         FOR APPROVAL AND SIGNATURE:


         HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
         ==========================================================

1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?

2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of No the judgment ?

4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== SARVODAY KELAVNI SAMAJ & 1....Petitioners Versus STATE OF GUJARAT & 2....Respondents ========================================================== Appearance:

MR DC DAVE, SENIOR ADVOCATE WITH MR JIGAR M PATEL, ADVOCATE for the Petitioners MR TIRTHRAJ PANDYA, ASSISTANT GOVERNMENT PLEADER for Respondent No. 1 MR AR THACKER, ADVOCATE for Respondent No. 2 MR MITUL K SHELAT, ADVOCATE for Respondent No. 3 ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 30/10/2015 C.A.V. JUDGMENT

1. The petitioners have preferred the present Page 1 of 66 HC-NIC Page 1 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT petition under Article 226 of the Constitution of India, praying for the issuance of a writ of mandamus directing the respondents to issue letters of concurrence/ approval/ ratification in respect of the status of an autonomous college conferred upon petitioner No.2 - Shri Manibhai Virani & Smt.Navalben Virani Science College, Rajkot ("petitioner No.2College"), by respondent No.3 - University Grants Commission ("UGC").

2. The facts leading to the filing of the present petition, as averred, are as under:

2.1 Petitioner No.1 is a Public Trust, duly constituted and registered under the provisions of the Bombay Public Trusts Act, 1950. The avowed object of petitioner No.1 is to undertake various activities in the field of education at various levels. As on date, there are various educational institutions functioning under the banner of petitioner No.1 in various disciplines at various levels.

2.2 Petitioner No.2 is a college run by petitioner No.1. Petitioner No.2College was Page 2 of 66 HC-NIC Page 2 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT established in the year 1968, for the purpose of imparting education in the discipline of science. At present, petitioner No.2College is engaged in imparting education in the discipline of science at the levels of graduation, post graduation and doctorate. According to the petitioners, petitioner No.2College is one of the most soughtafter educational institutions in the discipline of science, at various levels.

Petitioner No.2 has, to its credit, a Certificate of Accreditation granted by the National Assessment and Accreditation Council ("NAAC"), an autonomous institution established by the UGC. In addition, petitioner No.2 was awarded Rank 1 in the year 2013, by the Knowledge Consortium of Gujarat, established by the Department of Education, State of Gujarat, having secured 976 out of 1000 points on the basis of the academic and administrative audit of petitioner No.2, carried out by the Peer Team of the Knowledge Consortium of Gujarat, under its concerned Programme to rank educational institutions under its Programme across the Page 3 of 66 HC-NIC Page 3 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT State. The Ministry of Science and Technology, Government of India, through the Department of Biotechnology, has accorded "Star Department"

status to all the Science Departments of petitioner No.2College, under its Programme, in the year 2013. Petitioner No.2College has been affiliated to the second respondent - Saurashtra University ("the University"), ever since its establishment in the year 1968 and continues to be so affiliated till date.

2.3 Respondent No.3 - "UGC" has evolved guidelines, known as "Guidelines for Autonomous Colleges During the Eleventh Plan Period (2007 2012) ("the Guidelines") whereunder, upon assessment of a college affiliated to any University on the parameters fixed by the UGC, the status of an autonomous college is accorded.

Under the said Guidelines, an autonomous college is given functional autonomy in matters concerning the imparting of education. 2.4 Since petitioner No.2 - College was eligible for the status of an autonomous college Page 4 of 66 HC-NIC Page 4 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT under the Guidelines evolved by the UGC, it made a proposal in the prescribed format to the UGC in this regard, on 07.07.2010. In response to the said proposal, the UGC addressed a communication dated 05.04.2011 to petitioner No.2College, conveying that an Expert Committee constituted by it for the purpose of processing the proposal of petitioner No.2College, would undertake the inspection of the setup of the College in due course. It was also mentioned in the said communication that nominations for the Expert Committee, of the representatives by respondent No.1 - State of Gujarat ("State") and the University were awaited. Subsequently, the State and the University made nominations of their representatives on the Expert Committee, which fact was duly communicated by the UGC to petitioner No.2 - College.

2.5 By a letter dated 22.02.2012, the University issued a "No Objection Certificate"

in favour of petitioner No.2College, declaring, to all concerned, that if the UGC confers autonomous status to petitioner No.2 - College, Page 5 of 66 HC-NIC Page 5 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT the University has no objection, subject to fulfillment of Rules and Regulations. In the meanwhile, petitioner No.2 - College was directed by the UGC to submit a revised proposal in the prescribed format for seeking the status of an autonomous college, which it did. Thereafter, the setup of petitioner No.2 - College was inspected by the Expert Committee constituted by the UGC, on the 12th and 13th of March, 2012. During the said visit by the Expert Committee, the nominees of the State and the University were present and undertook the spot inspection. Subsequently, petitioner No.2 received a communication dated 22.08.2012, from the UGC, conveying that, based upon the recommendations of the Expert Committee and the consideration of the recommendation by the Standing Committee of the UGC and by the UGC, itself, it had been decided to grant the status of an autonomous college to petitioner No.2 - College, subject to the condition that the said College would be required to move an application to the NAAC for reaccreditation. Petitioner Page 6 of 66 HC-NIC Page 6 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT No.2College, therefore, moved the necessary application for reaccreditation, as directed by the UGC. By a communication dated 16.01.2013, addressed by the UGC to the Registrar of the University, it was informed that the status of an autonomous college stood granted to petitioner No.2College for a period of six years, commencing from the academic year 201213 and ending with the academic year 201718. It was also mentioned in the said communication, that the University could proceed further by issuing necessary orders, acknowledging the grant of the status of an autonomous college to petitioner No.2College, so that the said status could become effective and functional. In view of the above, petitioner No.2 - College addressed a communication dated 05.02.2013 to the Vice Chancellor of the University, inter alia, requesting him to issue necessary orders as required by the UGC, so that the status of an autonomous college conferred upon petitioner No.2 - College by the UGC, could become effective and functional.

Page 7 of 66 HC-NIC Page 7 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT 2.6 It is the case of the petitioners that once the UGC has taken a decision to confer the status of an autonomous college upon petitioner No.2, the University is obliged to concur, by passing necessary orders, or a Notification, as required. The concurrence of the State and the University would be a mere formality, in order to make functional the autonomy already granted. However, the State and the University did not issue letters of concurrence, as requested for by the UGC in its communication dated 05.02.2013. Petitioner No.2 issued a reminder on 15.02.2013, to the University. Thereafter, a series of communications, in the form of reminders and representations, were sent by petitioner No.2 College to the State and the University, reiterating its request to issue necessary orders or a Notification in approval and acknowledgement of the status of autonomous College granted by the UGC. The details of each one need not be mentioned, to prevent the burdening of the record.

2.7 In the meanwhile, the UGC appointed its Page 8 of 66 HC-NIC Page 8 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT nominee on the Governing Body of petitioner No.2

- College, as required under the Guidelines and informed petitioner No.2College, accordingly. 2.8 By a communication dated 16.05.2013, the University conveyed to petitioner No.2College, that it would be required to render an explanation on the points referred to in the Resolution dated 24.02.2013, passed by the Syndicate of the University. By the said Resolution, petitioner No.2College was called upon to furnish certain details, including the Report of the Expert Committee of the UGC and the decision thereupon by the Standing Committee of the UGC. Petitioner No.2College addressed a communication dated 16.05.2013, to the Registrar of the University, clarifying all the points raised by the University and requesting it to act in furtherance of the decision of the UGC. Subsequent thereto, nothing was heard, either from the State, or respondent No.2University. The petitioner again made a plethora of representations to both the respondents, but to no avail. According to the petitioners, they Page 9 of 66 HC-NIC Page 9 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT came to know, from reports in various daily newspapers having circulation in the city of Rajkot, that the Syndicate of the University had decided to constitute a Committee under Section 48A of the Saurashtra University Act, 1965 ("the Saurashtra University Act"), to look into the status of autonomous college conferred upon petitioner No.2College by the UGC. 2.9 Petitioner No.2 addressed a communication dated 15.07.2013, to the University, inter alia, explaining that such a course of action as contemplated by the University would not be warranted as the UGC had already conferred autonomous status upon petitioner No.2College and the University could not sit in appeal over the said decision. Nothing further was heard from either the State or the University by petitioner No.2College, which then sent a communication dated 03.09.2013, to the UGC, projecting its plight and requesting the UGC to intervene in the matter. Once again, a series of representations were made by the petitioners to the State and Page 10 of 66 HC-NIC Page 10 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT the University, requesting them to do the needful in the matter of giving formal approval/ concurrence to the status of an autonomous college conferred upon petitioner No.2College by the UGC, so that it could be made effective and functional. While petitioner No.2 - College was engaged in the aforesaid correspondence, the UGC addressed a communication dated 25.11.2013, to petitioner No.2College, requesting it to furnish documents of concurrence from the State and the University. Petitioner No.2College received a communication dated 06.12.2013, from the University, stating that steps were being undertaken by the University in the matter of autonomy conferred upon petitioner No.2College by the UGC, as per the decision of the Syndicate of the University, taken in its meeting convened on 13.07.2013. In the said meeting, it came to be resolved that appropriate steps be undertaken under Section 48A of the Saurashtra University Act, for the purpose of according the status of an autonomous college to petitioner No.2 College.

Page 11 of 66 HC-NIC Page 11 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT 2.10 It is the case of the petitioners that the stand taken by the University is erroneous, inasmuch as Section 48A of the Saurashtra University Act has no application to the fact situation of the present case, as the UGC has already conferred autonomy on petitioner No.2 College, under its Guidelines. The said College has never applied to the Saurashtra University for grant of autonomy, therefore, the initiation of the procedure under Section 48A of the Saurashtra University Act, is unwarranted. 2.11 Petitioner No.2College once again addressed a series of representations to all concerned, for the redressal of its grievances. 2.12 Thereafter, petitioner No.2College received a communication dated 26.03.2014, from the University, stating that it should clarify all points referred to in the internal communication dated 22.08.2013, addressed by the Secretary, Education Department of the State, to the Commissioner, Higher Education. In response thereto, petitioner No.2College addressed a Page 12 of 66 HC-NIC Page 12 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT detailed communication dated 31.03.2014, to the University, clarifying the points raised in the said internal communication. Nothing further was heard from respondents Nos.1 and 2 and the matter stood as it was. Aggrieved by the fact that petitioner No.2College is unable to savour the fruits of being granted the status of an autonomous college by the UGC, as far back as on 16.01.2013, the petitioners are before Court.

3. Mr.D.C.Dave, learned Senior Advocate with Mr.Jigar M.Patel, learned counsel for the petitioners has made elaborate submissions, summarised as below:

3.1 That the UGC is an apex body so far as Universities are concerned. The University Grants Commission Act, 1956 ("the UGC Act"), has its genesis in Entry No.66 of List I of the Seventh Schedule of the Constitution of India.

Once the UGC has conferred autonomous status upon petitioner No.2College under its Guidelines, after inspecting the setup and finding petitioner No.2College to have Page 13 of 66 HC-NIC Page 13 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT fulfilled all the requirements, it does not lie in the mouth of the University to decline to issue a letter of concurrence or a Notification to that effect, as required, in order to make the autonomous status functional and effective. Respondent No.2University is obliged to comply with the decision of the UGC. The Guidelines of the UGC are the outcome of the National Policy of Education formulated in the year 1986. As such, the University cannot sit in appeal over the decision of the UGC. The issuance of letters of concurrence/ ratification to the autonomy granted by the UGC, is a mere formality to be followed by the State and the University. Once the UGC has already completed the procedure of the inspection of the setup of petitioner No.2 College, the University cannot start parallel proceedings under Section 48A of the Saurashtra University Act. When the UGC has taken a decision to accord the status of an autonomous college upon petitioner No.2, the University, or the State Government, have no role to dispute such decision.

Page 14 of 66 HC-NIC Page 14 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT 3.2 That, though Section 48A of the Saurashtra University Act is regarding conferment of autonomy on colleges in certain matters, however, the petitioners have not made any application to the University under the said provision. There are two avenues for claiming autonomous status. One avenue is under the Saurashtra University Act and the other is under the Guidelines evolved by the UGC. Petitioner No.2 has chosen the latter course. The representatives of the State and the University have been nominated to the Expert Committee of the UGC, which has carried out the inspection of the setup of petitioner No.2College and recommended the grant of autonomous status to it. This means that both the State Government and the University, speaking through their nominees, have recommended the grant of autonomous status to petitioner No.2College. The issuance of a formal letter of concurrence now remains a mere formality. There are no valid reasons for the State and the University to obstruct petitioner No.2College from Page 15 of 66 HC-NIC Page 15 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT functioning effectively as an autonomous college.

3.3 That, the conferment of autonomy would not result in any additional financial burden on the State or the University. Petitioner No.2 College is a grantinaid College and would continue to receive the same grant from the State. Under the Guidelines of the UGC, petitioner No.2College would be eligible for additional grants from the UGC, for the advancement of education. This would be to the advantage of the State and the University, as it would promote the growth of education in the State. No prejudice would be caused to either respondent. On the contrary, it would enhance the cause of education in the State and would be a matter of pride for the State and the University, as petitioner No.2College will be the only college in the Saurashtra region of the State of Gujarat, to have been conferred autonomous status by the UGC. The only effect of autonomy would be that petitioner No.2College would be given functional autonomy, as mentioned Page 16 of 66 HC-NIC Page 16 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT in the Guidelines. The conferment of autonomy on petitioner No.2College would lead to academic freedom. There would be no adverse implications upon the State and the University.

3.4 That, the contention that respondent No.2University is required to proceed under Section 48A of the Saurashtra University Act is an afterthought on the part of the University. The procedure under Section 48A is not required to be followed, as petitioner No.2College did not make an application to the University for the grant of autonomy under this provision. After having nominated its representative on the Expert Committee of the UGC, which has recommended the conferment of autonomous status, the University cannot contend that a separate and parallel procedure under Section 48A is now required to be followed. This would set at naught the entire procedure followed by the UGC. Had the the University genuinely wanted to proceed under Section 48A from the very beginning, it would not have issued a "No Objection Certificate" in favour of petitioner Page 17 of 66 HC-NIC Page 17 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT No.2College. The application made by petitioner No.2College to the UGC for grant of autonomy has been routed through the University. The stand taken by the University is, therefore, arbitrary and unreasonable, apart from being violative of the fundamental rights of the petitioner under Articles 14 and 19(1)(g) of the Constitution of India.

3.5 That, the State and the University have not advanced a single valid reason for their arbitrary and unreasonable refusal in issuing a letter/ notification, concurring, approving or ratifying, the decision of the UGC. 3.6 That the State and the University have put the petitioners to a great disadvantage, as they are prevented from savouring the fruits of autonomy as conferred by the UGC. Moreover, the said status has been conferred for a period of six years, a major portion of which has now elapsed.

3.7 Learned Senior Counsel further contends that the State has not given any reasonable or Page 18 of 66 HC-NIC Page 18 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT cogent explanation for its stand, though three affidavitsinreply have been filed. The only stand taken is that there was litigation between petitioner No.1 - Trust and the State Government, regarding certain land transactions by the Trust. It is an admitted position that the litigation has concluded in favour of petitioner No.1 and against the State Government, upto the Supreme Court. Hence, the objection taken by the State would fall to the ground. In any case, the stand taken by the State Government has no link with the present case regarding conferment of autonomy on petitioner No.2College.

4. On the above grounds, learned Senior Counsel for the petitioners has urged that the petition be allowed.

5. The petition has been opposed by the State by filing three affidavits. The stand taken in all three affidavits is more or less the same, to the effect that, due to certain litigation regarding land transactions between petitioner Page 19 of 66 HC-NIC Page 19 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT No.1Trust and the State Government, wherein certain irregularities are alleged to have been committed by petitioner No.1, the procedure under Section 48 of the Saurashtra University Act is required to be followed by the University before a letter of concurrence in respect of the decision of the UGC conferring autonomy upon petitioner No.2College, is issued.

6. Mr.Tirthraj Pandya, learned Assistant Government Pleader, for respondent No.1, has made the following submissions:

6.1 That the approval/ ratification of the autonomous status conferred upon petitioner No.2 would be subject to a formal inquiry or verification. Hence, the necessity of following the procedure under Section 48A of the Saurashtra University Act.

6.2 The learned Assistant Government Pleader has fairly stated upon instructions, during the course of hearing, that the pending litigation between petitioner No.1College and the State Government in the Supreme Court has ended in Page 20 of 66 HC-NIC Page 20 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT favour of petitioner No.1.

7. From the above submissions, it is clear that the ground taken in the affidavits filed by the State, wherein the pending litigation has been stated to be the impediment in the way of ratification of the autonomous status of petitioner No.2College, no longer survives.

8. No other ground has been raised on behalf of the State.

9. The petition has been strongly opposed by Mr.A.R.Thacker, learned counsel for the University, by making the following submissions:

9.1 The University has been established in the year 1967, under the Saurashtra University Act, 1965. Apart from Section 48A, there is no other provision in the statute for conferment of autonomous status upon a college; therefore, the University has to follow the procedure laid down in the said Section.

9.2 That the UGC has stated, in its letter dated 16.01.2013, addressed to the Registrar of Page 21 of 66 HC-NIC Page 21 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT respondent No.2University, that it has `agreed' to grant autonomous status upon petitioner No.2 College. This does not mean that it has already granted such status. The intention of the UGC is that the procedure under Section 48A is required to be followed by the University, before granting approval to the decision of the UGC regarding the autonomous status of petitioner No.2College. For this purpose, the University would have to resort to the procedure under Section 48A of the Saurashtra University Act, which it has initiated. The UGC has never communicated to the University, that Section 48A is not applicable.

9.3 That, as per Section 48A of the Saurashtra University Act, the University can only make a proposal for conferring autonomous status to a college, to the State Government.

The State would then issue a Notification in this regard. The power of issuing a Notification lies with the State Government and not with the University. Without following the procedure under Section 48A, the University cannot make a Page 22 of 66 HC-NIC Page 22 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT recommendation to the State Government to issue such a Notification.

9.4 Learned counsel for the University has taken the Court through the contents of the affidavitinreply filed by the University, in order to buttress his submissions regarding the applicability of Section 48A of the Saurashtra University Act.

9.5 It is contended that, petitioner No.2 College, in its representation dated 15.07.2013, addressed to the Vice Chancellor of the University, has stated that, though it is not necessary to resort to the procedure under Section 48A of the Saurashtra University Act, however, if the University is desirous of proceeding under the said provision of law, it may do the needful. This shows the concurrence of the petitioners in adopting the procedure under Section 48A of the Saurashtra University Act.

10. On the above grounds, it is prayed that the petition be rejected.

Page 23 of 66 HC-NIC Page 23 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT

11. Mr.Mitul K.Shelat, learned counsel, for the UGC has supported the case of the petitioner. He has taken the Court through the relevant provisions of the UGC Act. The submissions advanced by learned counsel for the UGC are as under:

11.1 That the UGC has been established under the UGC Act, for the purpose of making provision for the coordination and determination of standards in Universities. It inquires into the financial needs of Universities and allocates and disburses grants to Universities, for any general or specified purpose. The UGC acts as an expert body to advise the Central Government on problems connected with coordination of facilities and maintenance of standards in Universities. The UGC, in consultation with the University concerned, has the power to cause an inspection or inquiry to be made in any University established by law in India and to advise the University on any matter which has been the subject of an inquiry or inspection.

The UGC also advises on the establishment of new Universities.

Page 24 of 66 HC-NIC Page 24 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT 11.2 That, the UGC has formulated Guidelines for Colleges. As per the Guidelines, the eligible colleges can apply for autonomous status by submitting a proposal to the UGC. The proposal is required to be forwarded by the affiliating University. Petitioner No.2 College has submitted a proposal for grant of autonomous status on 07.07.2010, which was forwarded by the University. On receipt of the proposal, the UGC has verified the eligibility criteria, as required under Clause 3 of the Guidelines and constituted an Expert Committee. The representatives of the State and the University are members of the Expert Committee. As per Clause 6 of the Guidelines, the Expert Committee carried out a spotinspection of the petitioner No.2 College on 12.03.2012 and 13.03.2013, in order to evaluate its performance and academic attainments for the purpose of conferment of autonomous status. A Report was prepared by the Expert Committee pursuant to the spotinspection and it was recommended that autonomous status be conferred upon petitioner Page 25 of 66 HC-NIC Page 25 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT No.2 - College, for an initial period of six years, from 201213 to 201718. The recommendations of the Expert Committee were placed before the Standing Committee and, thereafter, placed before the UGC, in accordance with Clause 6 of the Guidelines. In the meeting held on 18.07.2012 and 19.07.2012, the UGC, after taking into consideration the recommendations of the Standing Committee, decided to grant autonomous status to petitioner No.2College, subject to making an application to the NAAC for reaccreditation. This was communicated to petitioner No.2College by a communication dated 22.08.2012. Thereafter, petitioner No.2College, by way of a communication dated 06.10.2012, submitted the Letter of Intent for Colleges and letter of acceptance of the Letter of Intent by NAAC to the UGC. The UGC, therefore, by its communication dated 16.01.2013, directed the University to go ahead and issue necessary orders with regard to the grant of autonomous status on petitioner No.2College. Page 26 of 66 HC-NIC Page 26 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT 11.3 Once autonomy is granted by the UGC, with the concurrence of the representatives of the State and the University concerned, the University would issue a Notification to that effect, within a period of not more than three months. The autonomy conferred would be initially for a period of six years but would be regulated in terms of the Guidelines of the UGC. 11.4 That, petitioner No.2College meets with all the eligibility criteria formulated by the UGC under the Guidelines, therefore, it has been conferred autonomous status.

11.5 Learned counsel for the UGC has contended that the UGC Act is relatable to Entry 66 in List I (Union List) of the Seventh Schedule of the Constitution of India, whereas the establishment of Universities by the State is relatable to Entry 25 of List III of the Concurrent List. Entry 25 in List III would be subject to Entry 66 of the Union List, therefore, the recommendation of the UGC would prevail over the concerned University. Page 27 of 66 HC-NIC Page 27 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT In support of this submission, reliance has been placed upon a judgment of the Supreme Court in Prof. Yashpal And Another v. State of Chhatisgarh And Others (2005)5 SCC 420. 11.6 Referring to Section 5 of the UGC Act, learned counsel for the UGC has submitted that the composition of the Commission is largely of experts in the academic field. There is a predominance of independent academicians in relation to Governmentnominated functionaries. This envisages the independent functioning of the UGC. Referring to Section 12 of the UGC Act, it is submitted that, it is the key function and duty of the UGC, in consultation with the Universities or other concerned bodies, to take all steps that it thinks fit for the promotion and coordination of University education and the determination and maintenance of standards of teaching, examinations and research in Universities. It also inquires into the financial requirements of Universities and allocates and disburses funds and grants to the Universities, as may be deemed necessary for the Page 28 of 66 HC-NIC Page 28 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT development of such Universities or any specified activities. The UGC can also recommend to any University, the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendations.

11.7 Taking the Court through the provisions of Section 14 of the UGC Act, it is submitted that this Section delineates the consequences of the failure of the University to comply with the recommendations of the UGC. It is provided that if any University fails to comply with the recommendations made by the UGC, the grants proposed to be made out of the Fund of the UGC can be withheld. The Scheme of the UGC Act contemplates that the recommendations of the UGC are to be implemented by the concerned Universities and, in this view of the matter, the Saurashtra University is obliged to issue and accord approval/ ratification to the decision of the UGC in conferring autonomous status upon petitioner No.2College. Page 29 of 66 HC-NIC Page 29 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT 11.8 Learned counsel for the UGC has emphatically submitted that it is not as though the UGC has acted unilaterally in conferring autonomy on petitioner No.2College. The nominees of the State Government and the University were there on the Expert Committee and have made recommendations in favour of such status. The action taken by the UGC in conferring autonomous status is as per the Guidelines formulated by it. The procedure under Section 48A of the Saurashtra University Act is not at all applicable in the present case. After the UGC has conferred autonomous status upon petitioner No.2College, approval/ ratification by the University and the State Government remains a mere formality and a ministerial action. No further inquiry is required to be undertaken by the said respondents. Besides, the University has already granted a "No Objection Certificate" in favour of petitioner No.2 College.

11.9 That, at no point of time has the State or the University objected to the decision of Page 30 of 66 HC-NIC Page 30 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT the UGC regarding conferment of autonomous status on petitioner No.2College. The said decision has been taken by the UGC with the concurrence of the State Government and the University. The action of the University in attempting to initiate a separate procedure under Section 48 of the Saurashtra University Act is, therefore, uncalled for. Law does not contemplate such duplication and, more particularly, respondent No.2University cannot sit in appeal over the decision of the UGC.

12. In the above background, this Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, contents of the pleadings and the documents on record.

13. At the very outset, it would be apposite to advert to the salient features of the Guidelines for Autonomous Colleges formulated by the UGC. The introduction to the Guidelines reads thus:

"1. Introduction Highlighting the importance of autonomous Page 31 of 66 HC-NIC Page 31 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT colleges, the UGC document on the XI Plan profile of higher education in India clearly states that: "The only safe and better way to improve the quality of undergraduate education is to the link most of the colleges from the affiliating structure. Colleges with academic and operative freedom are doing better and have more credibility. The financial support to such colleges boosts the concept of autonomy." It is proposed to increase the number of autonomous colleges to spread the culture of autonomy, and the target is to make 10 per cent of eligible colleges autonomous by the end of the XI Plan period.

Need for Autonomy The affiliating system of colleges was originally designed when their number in a university was small. The university could then effectively oversee the working of the colleges, act as an examining body and award degrees on their behalf. The system has now become unwieldy and it is becoming increasingly difficult for a university to attend to the varied needs of individual colleges. The colleges do not have the freedom to modernize their curricula or make them locally relevant. The regulations of the university and its common system, governing all colleges alike, irrespective Page 32 of 66 HC-NIC Page 32 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT of their characteristic strengths, weaknesses and locations, have affected the academic development of individual colleges. Colleges that have the potential for offering programmes of a higher standard do not have the freedom to offer them. The 196466 Education Commission pointed out that the exercise of academic freedom by teachers is a crucial requirement for development of the intellectual climate of our country. Unless such a climate prevails, it is difficult to achieve excellence in our higher education system. With students, teachers and management being copartners in raising the quality of higher education, it is imperative that they share a major responsibility. Hence, the Education Commission (196466) recommended college autonomy, which, in essence, is the instrument for promoting academic excellence.

2. Objectives a. The National Policy on Education (1986

92) formulated the following objectives for autonomous colleges. An autonomous college will have the freedom to:

o determine and prescribe its own courses of study and syllabi, and restructure and redesign the courses to suit local needs; and Page 33 of 66 HC-NIC Page 33 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT o prescribe rules for admission in consonance with the reservation policy of the state government;

o Evolve methods of assessment of students? performance, the conduct of examinations and notification of results;

o Use modern tools of educational technology to achieve higher standards and greater creativity; and o Promote healthy practices such as community service, extension activities, projects for the benefit of the society at large, neighborhood programmes, etc. b. Relationship with the parent university, the state government and other educational institutions:

Autonomous colleges are free to make use of the expertise of university departments and other institutions to frame their curricula, devise methods of teaching, examination and evaluation. They can recruit their teachers according to the existing procedures (for private and government colleges). The parent university will accept the methodologies of teaching, examination, evaluation and the course curriculum of its autonomous colleges. It will also help the colleges to develop their academic programmes, improve the faculty and to provide necessary guidance by participating Page 34 of 66 HC-NIC Page 34 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT in the deliberations of the different bodies of the colleges.

The role of the parent university will be: o To bring more autonomous colleges under its fold;

o To promote academic freedom in autonomous colleges by encouraging introduction of innovative academic programmes; o To facilitate new courses of study, subject to the required minimum number of hours of instruction, content and standards; o To permit them to issue their own provisional, migration and other certificates;

o To do everything possible to foster the spirit of autonomy;

o To ensure that degrees/ diplomas/ certificates issued indicate the name of the college;

o To depute various nominees of the university to serve in various committees of the autonomous colleges and get the feedback on their functioning; and o To create separate wings wherever necessary to facilitate the smooth working of the autonomous colleges.

The state government will assist the autonomous colleges by:

o Avoiding, as far as possible, transfer of Page 35 of 66 HC-NIC Page 35 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT teachers, especially in colleges where academic innovation and reforms are in progress, except for needbased transfers; o Conveying its concurrence for the extension of autonomy of any college to the Commission within the stipulated time of 90 days after receipt of the review committee report, failing which it will be construed that the state government has no objection to the college continuing to be autonomous; and o Deputing nominees on time to the governing body of government colleges and other bodies wherever their nominees are to be included. o All three stake holders, the parent University, the State Govt. and UGC have to play a very harmonious and pro active role as facilitators in letter and spirits.

c. Conferring autonomous status: Autonomy granted to the Institution is Institutional and covers all the courses at U.G., P.G., Diploma, M.Phil. Level, which are being run by the Institution at the time of conferment of autonomous status. Also all courses introduced by the Institution after the conferment of autonomous status shall automatically come under the purview of autonomy. Partial autonomy cannot be given to any Page 36 of 66 HC-NIC Page 36 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT Institution.

Autonomous status covers certificate, diploma, undergraduate, postgraduate and M. Phil. programmes offered in colleges that are autonomous and those seeking autonomous status. The parent university will confer the status of autonomy upon a college that is permanently affiliated, with the concurrence of the state government and the University Grants Commission. Once the autonomy is granted, the University shall accept the students of autonomous college for award of such degrees as are recommended by the autonomous college. The Act and Statutes of the universities ought to be amended to provide for the grant of autonomy to affiliated colleges. Before granting autonomy, the university will ensure that the management structure of the applicant college is adequately participatory and provides ample opportunities for academicians to make a creative contribution.

... ... ...

9. Procedure for Monitoring/ Evaluation and release of grant:

... ... ...

Award of Degrees through Parent University The parent university will award degrees to the students evaluated and recommended by autonomous colleges. The degree certificates Page 37 of 66 HC-NIC Page 37 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT will be in a common format devised by the university. The name of the college will be mentioned in the degree certificate, if so desired. Autonomous colleges that have completed three terms can confer the degree under their title with the seal of the university."

14. The above guidelines have since been updated and the later guidelines pertaining to the XII Plan Period 201217, have been placed on record with the affidavitinreply filed by the UGC. The content of the later Guidelines is essentially the same, with some minor changes. Clause 6 of the 201217 Guidelines, which would also be applicable to petitioner No.2College, considering that autonomy has been granted to it from 201213 to 201718, requires that "once the autonomy is granted by UGC with the concurrence of representatives of University and the State Government concerned, the University will issue a notification to the effect within a period of not more than three months. Autonomy will be conferred initially for a period of six years".

Page 38 of 66 HC-NIC Page 38 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT (emphasis supplied)

15. By a letter dated 16.01.2013, the UGC has written to the Registrar of the University to go ahead and issue necessary orders, pursuant to the grant of autonomous status to petitioner No.2College. A submission has been advanced by learned counsel for the University, that in this communication, the UGC has written it has "agreed to grant autonomous status" to petitioner No.2College, which does not mean that it has actually granted such status.

16. This submission is nothing more than a contentious play on words. The communication referred to is extremely clear in stating that the UGC, after taking due consideration of the recommendations of the Standing Committee, has agreed to grant autonomous status to petitioner No.2College. Meaning thereby, that a decision to grant autonomous status has been taken. By this communication the University has been directed to issue necessary orders in this regard. A copy of the said letter has also been endorsed to the State Government.

Page 39 of 66 HC-NIC Page 39 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT

17. The reference to the representation made by the petitionerCollege to the University, by learned counsel for the University, is out of place. It may be recalled that the petitioners were constrained to resort to voluminous communications to the State and the University as, even after the conferment of autonomous status by the UGC upon petitioner No.2College on 16.01.2013, nothing further was done to accord formal approval/ ratification of the decision of the UGC. In the said representation, the petitionerCollege has only stated that, though it is not necessary to resort to the procedure under Section 48A of the Saurashtra University Act, however, the University may do the needful if it considers it fit. This cannot be taken to mean that the petitioner has pleaded that the process under Section 48A should be followed. The petitionerCollege was only trying to resolve the embargo in an amicable manner. The representation ought not to be read out of context, as is apparently being done by the learned counsel for the University. Page 40 of 66 HC-NIC Page 40 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT

18. It is a concluded fact, evident from the entire material on record, that the UGC has taken a decision to grant autonomous status to petitioner No.2College after following due procedure under its Guidelines. This is clear from the communication dated 15.02.2013, addressed by the UGC to the Principal of petitioner No.2College, extending congratulations on being conferred autonomous status, and stating that petitioner No.2 is the first college affiliated to the Saurashtra University to be accorded such status. This communication requires petitioner No.2College to implement the autonomous status by sending documents such as the approval/ ratification by the State regarding the conferment of autonomy.

19. It now remains to be decided whether, after the conferment of autonomous status by the UGC, the State and University are obliged to issue a formal letter of approval/ ratification, or a Notification, as the case may be, or to initiate fresh procedure for the grant of autonomy under Section 48A of the Saurashtra University Act. Page 41 of 66 HC-NIC Page 41 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT

20. For any college affiliated to the University, two options are available, in case it is desirous of achieving autonomous status. The first option is to make an application under Section 48A of the Saurashtra University Act and the second is to make an application to the UGC under its Guidelines. The petitioner No.2 College has chosen the latter course, by making an application to the UGC under the Guidelines.

21. It is not as though the University is unaware of the application made by petitioner No.2College, as the said application has been routed through the University. A perusal of the Guidelines of the UGC reveals that a stringent procedure is required to be followed before autonomy is conferred upon a college. Only if the concerned college meets the required standards is it considered to be eligible for such status. The procedure calls for due application of mind to the required standards. After being granted autonomous status, the college would still remain affiliated to the University concerned, but would have more educational and functional Page 42 of 66 HC-NIC Page 42 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT freedom in the matter of devising its own courses, curriculum or syllabi and restructuring and redesigning suitable courses for local needs. The main purpose of the grant of autonomy to a college is to achieve academic excellence, raise educational standards and develop the intellectual climate in the country. A college upon which autonomy has been conferred would be free to appoint its own teachers and faculty; meaning thereby, that it can bring in renowned experts whose academic achievements would stimulate the intellectual development of the students. The Guidelines contemplate a partnership between students and teachers, in order to raise the quality of higher education. An autonomous college, therefore, is contemplated to be an instrument for promoting academic excellence, which is the goal for which Universities are established.

22. Under the Guidelines, autonomous colleges are free to make use of the expertise of the Departments of the University concerned and other institutions, to develop their curricula Page 43 of 66 HC-NIC Page 43 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT and devise their own methods of teaching. The parent University would accept the methodologies of teaching, examination, evaluation and the course curriculum of the autonomous college affiliated to it.

23. In the Guidelines, the role of the parent University has been clearly delineated, which is to bring more autonomous colleges under its fold, in order to promote academic freedom by encouraging the introduction of innovative academic programmes. This means that the stand of the concerned University ought to be conducive to the grant of autonomous status upon an affiliated college, and not the contrary. The role of the University would also be to facilitate new courses of study and do everything possible to foster the spirit of autonomy. The degrees / diplomas / certificates would be issued in the name of the College. The parent University would award degrees to the students evaluated and recommended by autonomous colleges.

Page 44 of 66 HC-NIC Page 44 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT

24. In addition to the role of the University, the Guidelines also envisage a role for the State Government, which is mainly to assist autonomous colleges by avoiding, as far as possible, transfer of teachers, especially in colleges where academic innovation and reforms are in progress, except for needbased transfers. The State Government would be expected to convey its concurrence for the extension of autonomy to any college to the UGC, within the stipulated period of ninety days after the receipt of the Review Committee Report, failing which it will be construed that the State Government has no objection to the college continuing to be autonomous. The Guidelines further contemplate that all three stakeholders, the parent University, the State Government and the UGC, shall have to play a very harmonious and proactive role, as facilitators, in letter and spirit. The Guidelines further envisage that the parent University will confer the status of autonomy upon a college that is permanently affiliated, with the concurrence of the State Page 45 of 66 HC-NIC Page 45 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT Government and the UGC. Once autonomy is granted, the University shall accept the students of autonomous colleges for award of such degrees as are recommended by the autonomous colleges. The Guidelines contemplate an amendment of the Act and statute of Universities to make them amenable to conferment of autonomous status.

25. The aim and object of the grant of autonomy is to improve the quality of higher education and educational standards. There can be no two opinions that such an aim and object can only be lauded by the State and the University. The reluctance on the part of the State and the University in granting formal approval to the status of an autonomous college, already conferred by the UGC upon petitioner No.2 College is, therefore, rather surprising and disappointing. It would be in the interest of the State Government if the quality of education being imparted in the colleges affiliated to Universities established under the Acts passed by the State Legislature, such as respondent Page 46 of 66 HC-NIC Page 46 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT No.2University, is enhanced. Academic excellence would raise the level of the State Government in various fields and result in "brain gain", rather than "brain drain". It should be a matter of pride for the State and the University if one of the colleges affiliated to the University is granted autonomous status.

26. The Court is informed by learned counsel for the University that petitioner No.2College is the first college affiliated to Saurashtra University, to be granted autonomy by the UGC. No other college affiliated to the University has been granted autonomy and none, so far, has applied under Section 48A of the Saurashtra University Act, for such purpose.

27. At this juncture, it would be fruitful to advert to the UGC Act, especially the Statement of Objects and Reasons. The relevant portion is reproduced hereinbelow:

STATEMENT OF OBJECTS AND REASONS The Constitution of India vests Parliament with exclusive authority in regard to `co Page 47 of 66 HC-NIC Page 47 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT ordination and determination of standards in institutions'. It is obvious that neither coordination nor determination of standards is possible unless the Central Government has some voice in the determination of standards of teaching and examination in Universities, both old and new. It is also necessary to ensure that the available resources are utilised to the best possible effect. The problem has become more acute recently on account of the tendency to multiply Universities. The need for a properly constituted commission for determining and allocating to Universities funds made available by the Central Government has also become more urgent on this account.

2. It is therefore proposed to establish a University Grants Commission as a corporate body which will inquire into the financial needs of Universities and allocate and disburse grants to Universities for any general or specified purpose. The Commission will also have the power to recommend to any University education and to advise the University concern upon the action to be taken for the purpose of implementing such recommendation. The Commission will act as an expert body to advise the Central Government on problems connected with the Page 48 of 66 HC-NIC Page 48 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT coordination of facilities and maintenance of standards in Universities. The Commission in consultation with the University concerned, will also have the power to cause an inspection or inquiry to be made of any University established by law in India and to advise the University on any matter which has been the subject to an inquiry or inspection. The Commission shall also advise, whenever such advise is sought, on the establishment of new Universities.

The preamble of the Act states thus:

An Act to make provision for the co ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission.

28. The Scheme of the UGC Act is required to be noted. The composition of the members of the UGC, as laid down in Section 5 of the UGC Act, shows a predominance of independent academicians. This is in consonance with the Aims and Objects for the establishment of the UGC as the Apex Body, insofar as measures to improve University education and allocate funds for such improvement, is concerned. The Page 49 of 66 HC-NIC Page 49 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT functions of the Commission, as delineated in Section 12 of the UGC Act, are indicative of the superior status of the UGC, as a recommendatory body, over and above all Universities in the country. The recommendations of the UGC are required to be followed by the Universities and the State Governments. The said Section is reproduced hereinbelow:

"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

(a) inquire into the financial needs of Universities;

(b) allocate and disburse, out of the Fund of the Commission, grants to Universities established or incorporated by or under a Central Act for the maintenance and Page 50 of 66 HC-NIC Page 50 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT development of such Universities or for any other general or specified purpose;

(c) allocate and disburse, out of the Fund of the Commission, such grants to other Universities as it may deem [necessary or appropriate for the development of such Universities or for the maintenance, or development, or both, of any specified activities of such Universities] or for any other general or specified purpose:

Provided that in making any grant to any such University, the Commission shall give due consideration to the development of the University concerned, its financial needs, the standard attained by it and the national purposes which it may serve, (cc) allocate and disburse out of the Fund of the Commission, such grants to institution deemed to be Universities in pursuance of a declaration made by the Central Government under section 3, as it may deem necessary, for one or more of the following purposes, namely:

(i) for maintenance in special cases,

(ii) for development,

(iii) for any other general or specified purpose;

Page 51 of 66

HC-NIC Page 51 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT (ccc) establish, in accordance with the regulations made under this Act, institutions for providing common facilities, services and programmes for a group of Universities or for the Universities in general and maintain such institutions or provide for their maintenance by allocating and disbursing out of the Fund of the Commission such grants as the Commission may deem necessary.

(d) recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation;

(e) advise the Central Government or any State Government on the allocation of any grants to Universities for any general or specified purpose out of the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be;

(f) advise any authority, if such advice is asked for, on the establishment of a new University or on proposals connected with the expansion of the activities of any University;

(g) advise the Central Government or any State Government or University on any Page 52 of 66 HC-NIC Page 52 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT question which may be referred to the Commission by the Central Government or the State Government or the University, as the case may be;

(h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the same available to any University;

(i) require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that University respecting each of such branches of learning;

(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."

In addition thereto, Section 14 of the UGC Act provides for the consequences of the failure of Universities to comply with recommendations of the Commission. It reads thus:

Page 53 of 66

HC-NIC Page 53 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT "14. Consequences of failure of Universities to comply with recommendations of the Commission If any University [grants affiliation in respect of any course of study to any college referred to in sub section (5) of section 12A in contravention of the provisions of that subsection or] fails within a reasonable time to comply with any recommendation made by the Commission under section 12 or section 13, [or contravenes the provision of any rule made under clause (f) or clause (g) of sub section (2) of section 25, or of any regulation made under clause (e) or clause

(f) or clause (g) of section 26,] the Commission, after taking into consideration the cause, if any, shown by the University [for Such failure or contravention] may withhold from the University the grants proposed to be made out of the Fund of the Commission."

(emphasis supplied) This provision makes it clear that UGC can withhold the grants proposed to be made out of its Fund from any University that fails to comply with its recommendations. This, again, shows the predominance of the UGC over the Universities and contemplates that its Page 54 of 66 HC-NIC Page 54 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT recommendations are binding.

29. The superior hierarchical standing of the UGC with respect to Universities is also brought out by the fact that the establishment of the UGC is relatable to Entry 66 in List I (Union List) of the Seventh Schedule of the Constitution of India. Entry 66 reads as below:

"66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions"

On the other hand, the Saurashtra University Act is relatable to the exercise of power under Entry 25 of List III (Concurrent List). Entry 25 reads as below:

"25. Education, including 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."

(emphasis supplied) Entry 25 of List III makes it clear that it is subject to the provisions of Entry 66 of List I. Page 55 of 66 HC-NIC Page 55 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT Hence, the primacy of the UGC and its recommendations is clearly established by the constitutional scheme. This would essentially mean that where there is a clash between the State legislation under Entry 25 of List III and the Central legislation under Entry 66 of List I, Entry 25 of List III would be subject to Entry 66 of List I.

30. The above proposition has been clarified by the Supreme Court in Prof. Yashpal And Another v. State of Chhatisgarh And Others (supra), cited by the learned counsel for the UGC, in the following terms:

The State Legislature can make an enactment providing for incorporation of universities under Entry 32 of List II and also enactments generally for universities under Entry 25 of List III. However, the UGC Act has been made with reference to List I Entry 66. Entry 66 of List I deals with coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. There can thus be a clash between the powers of the State and that of Page 56 of 66 HC-NIC Page 56 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT the Union. Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in Parliament. The use of the expression "subject to" in List III Entry 25 of the Seventh Schedule clearly indicates that the legislation in respect of excluded matters cannot be undertaken by the State Legislatures. It is the exclusive responsibility of the Central Government to determine the standards for higher education and the same should not be lowered at the hands of any particular State as it is of great importance to national progress.

(emphasis supplied) (Paras 45, 46, 28 and 31) The consistent and settled view of the Supreme Court is that in spite of incorporation of universities as a legislative head being in the State List under Entry 32 thereof, 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 Page 57 of 66 HC-NIC Page 57 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT Legislature on account of a specific entry, that is List I Entry 66, being in the Union List for which Parliament alone is competent. It is the responsibility of Parliament to endure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained.

(emphasis supplied) (Para 33) Having regard to the constitutional scheme and in order to ensure that the enactment made by Parliament, namely, the UGC Act is able to achieve the objective for which it has been made and UGC is able to perform its duties and responsibilities, and further that the State enactment does not come in conflict with the Central legislation and create any hindrance or obstacle in the working of the latter, it is necessary to read the expression "established or incorporated" in Sections 2(f), 22 and 23 of the UGC Act as "established and incorporated" insofar as private universities are concerned. Therefore it is only after establishment of the basic requisites of a university (classrooms, library, laboratory, offices and hostel facility, etc.) that private Page 58 of 66 HC-NIC Page 58 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT universities should be incorporated and conferred a juristic personality.

(emphasis supplied) (Para 59)

31. The above discussion makes it evident that the recommendations for conferment of autonomous status on petitioner No.2College by the UGC would prevail over any decision contemplated by the University in this regard. In short, the recommendations of the UGC are required to be complied with by the University. In the present case, the decision of the UGC to confer autonomy to petitioner No.2College is in consonance with the Aims and Objects for which the UGC has been established, which is to enhance the standards and quality in the institutions of higher education. Autonomy has been conferred after examining each and every aspect as required under the Guidelines and taking into considerations the recommendations of the Expert Committee.

32. It is ironical that the State and the University, after having nominated their members to the Expert Committee of the UGC which has Page 59 of 66 HC-NIC Page 59 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT carried out spotinspection of petitioner No.2 College and recommended it for the grant of autonomy, are now prevaricating in issuing formal letters of approval to such status. The University has issued a "No Objection Certificate" in favour of petitioner No.2 College, in this regard. In effect, the State and the University are deemed to have concurred to the grant of autonomous status on petitioner No.2College through their nominees on the Expert Committee. At no point of time have the State, or the University, objected to the grant of autonomous status to petitioner No.2College. As such, they can hardly be permitted to sing a different tune at this stage, when a decision has been taken by the UGC. The State and the University cannot be permitted to approbate and reprobate at the same time.

33. No valid or legitimate reasons have been advanced by the State or the University, to justify their stand in not according formal approval to the autonomous status granted to petitioner No.2College. The only defence by the Page 60 of 66 HC-NIC Page 60 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT State is that a litigation regarding land was pending between petitioner No.1Trust and the State Government. As the said litigation has now concluded in favour of petitioner No.1 in the Supreme Court, the sole ground for objection taken by the State Government has fallen to the ground. In any case, whether said ground was at all relevant in the context of the present case, is another matter, as a land dispute has no nexus to the grant of autonomous status.

34. It may now be examined whether the University is justified in initiating the procedure under Section 48A of the Saurashtra University Act, after the UGC has followed the procedure and conferred autonomous status to petitioner No.2 College.

35. As stated earlier, there were two modes for petitioner No.2College to proceed for the status of autonomy. One was to apply under the Guidelines of the UGC and the other, to make an application under Section 48A of the Saurashtra University Act. Petitioner No.2College did not Page 61 of 66 HC-NIC Page 61 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT make an application under Section 48A of the Saurashtra University Act. There is, therefore, there is no question of following the procedure under the said Act. Instead, the petitioner College chose to make an application to the UGC under the Guidelines. The application was routed through the University. After following due procedure, the UGC has conferred autonomous status on petitioner No.2College. After the UGC has taken the decision, the University cannot undertake another parallel procedure for the same purpose, under the Saurashtra University Act, which has never been invoked by petitioner No.2College. No further scrutiny is, required as the required procedure under the Guidelines has already been followed by the UGC. As stated earlier, the recommendations of the UGC, in this regard, are binding upon respondent No.2 University. It is, therefore, obliged to act in compliance of the decision of the UGC. Similarly, the State Government would also be obliged to act in compliance of the recommendations of the UGC by issuing a formal Page 62 of 66 HC-NIC Page 62 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT approval/ ratification to the autonomous status conferred by the UGC on petitioner No.2College. This would be in consonance with the mandate of the Constitution of India.

36. A submission was advanced on behalf of respondent No.2University that no power is conferred by the statute to issue a Notification and that a Notification can only be issued by the State Government. This submission has no legs to stand on. What is required, in letter and spirit, is a formal acknowledgement, approval and ratification of the decision of the UGC in granting autonomous status to petitioner No.2College by the State Government and the University. Whether such approval is in the form of a Notification, or otherwise, is left to the wisdom of the competent authorities, to do the needful.

37. Considering Entry 66 in List I (Union List) of the Seventh Schedule of the Constitution of India visavis Entry 25 of List III (Concurrent List), the UGC Act and the Guidelines formulated Page 63 of 66 HC-NIC Page 63 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT by the UGC, it clearly emerges that insofar as the autonomous status conferred by the UGC upon petitioner No.2College is concerned, it would be regulated under the Guidelines formulated by the UGC and would not be subject to Section 48A of the Saurashtra University Act, as petitioner No.2College has not applied for such status under the said Act. Once the UGC has undertaken and completed the entire exercise, it is not open to respondent No.2University to prevaricate and withhold the formal approval/ ratification to the decision of the UGC, which is required to be effectively implemented and given effect to. The inaction of the University in not according approval/ ratification to the decision of the UGC is dehors the constitutional scheme, apart from being arbitrary, unjust and unreasonable. Similarly, the inaction of the State Government in according formal approval to the decision of the UGC in conferring autonomous status on petitioner No.2College, is unjustified and unreasonable. The recalcitrant stand of the Page 64 of 66 HC-NIC Page 64 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT University and the State Government has deprived petitioner No.2College of effectively implementing the status of autonomy conferred by the UGC. Such a stand has resulted in prejudice to petitioner No.2College and has deprived potential students from availing of the benefits of quality education. To condone the stand of the University and the State in refusing to accord formal approval to the decision of the UGC would lead to a dangerous situation, resulting in the unravelling of the fabric of academic excellence and the hierarchy of academic bodies. Such a course of action, as undertaken by the University and the State Government, cannot be permitted in the larger interest of academic excellence, quality education and the achievement of desired standards in higher education, which are in the interest of the public at large. Surely, the State and the University would desire the same goal.

38. Taking into consideration the totality of the facts and circumstances, as discussed Page 65 of 66 HC-NIC Page 65 of 66 Created On Sat Oct 31 02:36:48 IST 2015 C/SCA/11372/2014 CAV JUDGMENT hereinabove, and for reasons stated hereinabove, this Court is of the firm view that the case of the petitioners, being meritorious, deserves to be accepted.

39. Hence, the following order:

Respondent No.1State of Gujarat and respondent No.2Saurashtra University, shall accord their approval/ ratification to the decision of the UGC in conferring autonomous status upon petitioner No.2College, by issuing appropriate letters/ Notifications, as required.

The above shall be done within a period of one week from the date of the receipt of a copy of this judgment, without fail.

40. The petition is allowed in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.

(SMT. ABHILASHA KUMARI, J.) sunil Page 66 of 66 HC-NIC Page 66 of 66 Created On Sat Oct 31 02:36:48 IST 2015

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Gujarat High Court