Rajasthan High Court - Jaipur
Nims University Rajasthan vs Rajasthan Para Medical Council on 3 May, 2019
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ No. 383/2017
Nims University Rajasthan Jaipur Through Its Registrar,
Shobha Nagar, Jaipur, through its Registrar.
----Petitioner
Versus
Rajasthan Para Medical Council Through Its Registrar, G.1A,
Kisan Bhawan, Lal Kothi, Jaipur, through its Registrar.
----Respondent
For Petitioner(s) : Mr. S.S. Hora, Mr. Achintya Kaushik
For Respondent(s) : Mr. Bharat Saini
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Order
03/05/2019
Aggrieved of the order dated 19th December, 2016, made by
the respondent-Rajasthan Para Medical Council (for short,
'respondent-council'), the petitioner-NIMS University, Rajasthan,
Jaipur (for short, 'petitioner-university'), has approached this court
praying for the following reliefs:
"(i) Quash and set aside the impugned Office Order
No. Peramedi co / 2016 /4454 dated 19.12.2016
(Annexure -1);
(ii) Declare the qualifications as awarded by the
petitioner in Medical Lab Technology Courses as such
as being recognized;
(iii) Any other relief, order or direction that this Hon'ble
Court deems fit in the interest of equity, justice and good
conscience."
(D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders)
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2. Shorn off unnecessary details, the essential skeletal
material facts which need to be note of for appreciation of the
controversy raised are: that the petitioner-university was
incorporated and came into existence in view of the enactment
of NIMS University Rajasthan, Jaipur Act, 2008, with effect
from 19th January, 2008. And the respondent-council was
incorporated in terms of the Rajasthan Para Medical Council
Act, 2008. The respondent-council vide impugned Office Order
No. 4454 of 2016 dated 19 th December, 2016, invalidated the
qualification, awarded by the petitioner-university for diploma
in paramedical courses and further, all pending applications
and all previous registrations of the diploma holders have also
been cancelled; leading to institution of the instant writ
petition.
3. Mr. S.S. Hora, learned counsel for the petitioner
contended that the petitioner-NIMS College of Para Medical Technology, was initially affiliated to Board of Technical Education, Jodhpur, as an independent college imparting education in Para Medical courses. Later on, it became a constituent college of the newly incorporated petitioner- University, incorporated in terms of section 3(2) read with Schedule I of the NIMS University Rajasthan, Jaipur Act, 2008. The petitioner-university was accorded approval by the University Grants Commission (for short, 'UGC') after due inspection, to award degrees/qualifications/diploma in the Para (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 3 Medical courses and was covered with the status of a State Private University along with approval to run the said courses vide communications dated 3rd July, 2008 and 31st October, 2014. Further, communications between the respondent- council and the petitioner-university would reflect that the Diploma holders in Para Medical courses were recognized by the respondent-council. That apart, the respondent-council also took steps to register and recognize the Diploma holders in Para Medical Technology courses, even retrospectively.
4. Learned counsel would further contend that the petitioner's constituent college was approved to run the courses in Para Medical Technology by All India Council for Technical Education even before the incorporation of the petitioner-university and the documents for approval of running the said courses had already been placed on record. Therefore, the statutory council for according approval to run the said courses as such was the All India Council for Technical Education before the respondent-council came into existence. Thus, proper approvals were obtained from that statutory council. The respondent-council came into existence after enactment of the Rajasthan Para Medical Council Act, 2008, in the year 2008, although the respondent-council started functioning sometime in the mid of the year 2014. Thus, by no stretch of imagination it can be concluded that no approvals for running the said course were obtained by the petitioner-
(D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 4 university. Be that as it may, the said course was also recognized by the State Government as would be evident from a glance of communication dated 19 th August, 2009, issued by the Director, Technical Education to Additional Director, Medical & Health Services, which has also been placed on record.
5. Mr. Hora, further added that in the face of section 4 and 5(a) of the NIMS University Rajasthan, Jaipur Act, 2008, the petitioner-university is vested with the power to provide for instructions in the disciplines specified in Schedule II of the Act and Schedule II authorizes the petitioner-university to run Diploma courses in Par Medical Technology. Section 4 of the NIMS University Rajasthan, Jaipur Act, 2008, accords the petitioner-university, a defacto approval to the courses detailed out in Schedule II of the Act from the incorporation of the university, which states as thus:
"4. The objects of the University.- The objects of the University shall be to undertake research and studies in the disciplines specified in schedule II and such other disciplines as the University may with the prior approval of the State Government, determine from time to time and to achieve excellence and impart and disseminate knowledge in the said disciplines"
6. Thus, in view of section 4 of the NIMS University Rajasthan, Jaipur Act, 2008, the course of Diploma in Medical Laboratory (DMLT), is recognized by default and no other approval is needed. And all the courses affected by the (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 5 impugned order are part of Schedule II of the NIMS University Rajasthan, Jaipur Act, 2008. Furthermore, the concerned Diploma courses are within the ambit of the technical courses only and the same have been treated so by the All India Council for Technical Education as well.
7. The petitioner-university came into existence in 2008, vide the NIMS University Rajasthan, Jaipur Act, 2008, wherein the Diploma in Medical Lab Technology was a course specifically mentioned in the Schedule II of the Act. Moreover, prior to 2008, proper approvals were obtained from the State Authority i.e. from the AICTE which covered the period of 2005 to 2012 and copies of the approvals aforesaid have already been placed on record. When the petitioner-university came into existence, the State Government through Directorate of Technical Education, approved the Lab Technician course of the petitioner-university for the purpose of admissions vide order dated 19th August, 2009, and admissions were made through counseling from Directorate of Technical Education itself.
8. Learned counsel also made reference to the case of Sultan Singh and Ors. Vs. State of Rajasthan & Ors.:SBCWP No.11460/2015; decided on 19th September, 2016, wherein the petitioners (Sultan Singh and Ors.), aggrieved of the action of the respondents therein, in not considering their qualifications though being in accordance to the conditions of (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 6 eligibility as prescribed by the respondents, in terms of the Advertisement for the posts of Assistant Radiographer, Lab Technician and Laboratory Assistant; had approached this court. And this court vide order dated 19th September, 2016, rejected the plea of the petitioners on the premise that none of the Universities were having recognition for the qualification from an expert body or council. However, the petitioner- university was not party to the above mentioned litigation, and therefore, was not aware of the issues raised before the Court in the matter aforesaid. Therefore, the petitioner-university challenged the said order in appeal [DBSAW No.1501/2016:
Nims University, Rajasthan Nurses State (Medical Health Welfare Department) and Ors.] to the extent to hold that the qualifications of diploma in Para Medical Technology, awarded by the petitioner-university, are recognized and the appeal has been admitted. On 20th January, 2017, the observations made by the learned Single Judge have been stayed in appeal supra.
9. The respondent-council, in view of the order dated 19 th September, 2016 of this court, spontaneously made the impugned order dated 19th December, 2016, which is arbitrary, unjust, illegal and without application of mind. Furthermore, the impugned order is a non-speaking order in all its prospects. That the fact that the impugned order gives a rider by way of "Note", speaks volumes of manner and mode the matter was dealt with. The approach is totally a (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 7 mechanical manner in which the order impugned has been made, even without considering the reply dated 25 th November, 2016, filed by the petitioner-university, in response to the notice issued on 17th November, 2016, regarding the issue involved herein.
10. Per Contra; Mr. Bharat Saini, learned counsel for the respondents stated that the petitioner-university has no recognition from the State Government for running the course of Diploma for Para Medical Technology. Further, All India Council for Technical Education has no authority to accord such type of recognition in Para Medical courses, and thus, the petitioner-university had no authority to accord diploma of the course. The petitioner-university was running the said courses through distance education programme and as a matter of fact, All India Council for Technical Education had the authority to recognize distance education courses, but, not a course of Para Medical, as the same was required to be studied along with training from an attached hospital. That apart, the Para Medical courses were not within the domain of All India Council for Technical Education as it exclusively operates in the field of technical education and this fact would be evident by a bare perusal of the section 2 (g) of the All India Council for Technical Education Act, 1987, which defines 'Technical Education' thus:
(D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 8 "means programmes of education, research and training in engineering technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other programme or areas as the central government may, in consultation with the council, by notification in official gazette, declare."
11. It is further contended that the petitioner-university failed to provide any evidence in this regard as well recognition for the said course accorded by the State Government. Merely stating that the course is recognized by the Government with no record in support thereof would not confer recognition. Furthermore, the petitioner-university failed to demonstrate as to when and before which authority it applied for recognition, number of seats for the said course allotted, details about infrastructure, physical, clinical facilities, campus and teaching staff and no inspection report was placed on record for the same. Moreover, the petitioner-university also failed to comply with the directions of the All India Council for Technical Education, and therefore, in fact had no authority to accord approval for the said course.
12. Counsel for the respondent-council further argued that the issue raised herein, is no more res-integra in view of adjudication by this Court in the case of Kuldeep Shukla (supra), decided on 30th May, 2011, holding thus:
"15. Having held so, what has to be now examined is whether omission of the phraseology "recognized by the State Government' in Schedule-III appended to the Rules of 2008 for the post of Assistant Radiographer/ (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 9 Radiographer would imply that since similar terminology has been used in all other four Schedules namely; I, II, IV & V for the posts of Rural Nurse, Rural Health Worker (Female), Laboratory Technician (Rural) and Rural Health Worker (Male) respectively, would it mean that whatever diploma or certificate qualification from wherever obtained, has to be deemed to be recognized qualification? This is too tall an argument to accept Answer to that question, in my humble opinion, would be a firm no. In the absence of a regulatory body, which may lay down standards of paramedical education and training and regulate such institution; ill trained persons with sub-standard knowledge of this specialized subject, may create havoc with the life of patients in health sector.
16. Recognition of a qualification by the State Government cannot be a matter of inference. It can be accepted only, if the government has by a positive order done so or otherwise it is so proved according to relevant statute. As far as State of Rajasthan is concerned, Act of 2008 is the relevant statute on the subject, which in its Section 32 has provided mechanism for doing so. If the State Government has to have recognition of such diplomas/ certificates, it has to constitute the Paramedical Council in terms of Section 32 of the Rajasthan Para-Medical Council Act, 2008, which may decide whether or not any qualification in paramedical subjects granted by an authority outside the territories of the State of Rajasthan affords a sufficient guarantee of the requisite skill and knowledge. Paramedical Council may declare such qualification to be a recognized qualification for the purpose of the Act of 2008. It is of utmost urgency and importance that the State Government immediately constitutes Paramedical Council in the State of Rajasthan in terms of Section 4 of the Act of 2008 because health is one such sector which vitally affects the public at large.
17. Conclusion that emanates from the discussion made above is that qualification possessed by the petitioners cannot be held to be recognized by the State Government or the Paramedical Council for employment (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 10 under the Government of Rajasthan. Although, for that reason they may not be always ineligible for such appointment. However that confusion should not persist forever and this state of uncertainty must come to end. In other therefore to resolve the controversy for once and all, the State Government is directed to constitute the Paramedical Council as per Section 4 supra within a period of three months from the date copy of this order is produced before it. Matter with regard to recognition or otherwise of the qualifications held by the petitioners in the State of Rajasthan, shall be laid before the Paramedical Council, which in terms of Section 32 of the Rajasthan Para-Medical Council Act, 2008 shall take a decision thereabout within three months next after its constitution. If eventually, qualification possessed by the petitioners is recognized by the Paramedical Council, that recognition shall hold the field prospectively."
13. It is further pointed out that similar view was expressed in the case of Lohade Ram Meena (supra), decided on 30 th March, 2012 so also in the case of Mahendra Choudhary. In case of Ajju Khan and 31 other petitions (supra), including the petitioner-university, claim of the petitioner therein was rejected by a coordinate bench of this court vide order dated 19th September, 2016, wherein it was held thus:
"The Rules of 1996 as amended, need recognition of the institution of the State/Central Government or Rajasthan Para-Medical Council for the posts of Assistant Radiographer and Lab Technician. For the post of Lab Assistant, the institution needs recognition from the State Government. None of the Universities is having recognition from the State/Central Government or from Rajasthan Para-Medical Council as no document for it has been produced. In view of above also, petitioners have rightly been held ineligible for the post in question."
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14. Learned counsel further asserted that in the letter dated 31st July, 2008, it is clearly stated that "with the formal approval of the statutory councils, wherever required", which explicitly mandates a prior approval from the statutory council, in this case from the State Government, but no such approval was obtained by the petitioner-university; however, the letter is silent with regard to Para Medical courses. In addition, the petitioner-university is bound to follow the instructions of the regulatory bodies as per section 38 and section 39 of the Rajasthan Private University Act, 2005, which clearly defines regulatory bodies, which includes State Government, in section 2 (r) of the Rajasthan Private University Act, 2005.
15. Mr. Bharat Saini, vehemently argued that the council had accorded recognition to the petitioner-university vide communication dated 24th November, 2015, for onward sessions only and that recognition can in no circumstance be considered retrospectively. Thus, earlier academic sessions of the course have not been recognized by the respondent- council. Furthermore, there are specific provisions for registration of a body for running the said course as specified in the Regulation 42 of the RPMC which provides for the eligibility for registration, as follows:
"42.Eligibility for registration.- The following persons shall be eligible for registration, -
"(i) who has obtained certificate of a Para-medical course from any Government body or private body permitted by the (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 12 Government for the purpose who has run the course and awarded certificate before the commencement of these regulations.
(ii) who has passed the Para-medical course from any institution recognized by the Rajasthan Para-medical Council.
(iii) who has passed the Para-medical course from any institution/ Government body, outside the territories of Rajasthan, recognized for the purpose by the concerned State Government or Central Government.
(iv) who has passed the Para-medical course from any institution, outside the territories of India, recognized for the purpose by the Government of the country concerned and verified by Government of India."
16. Regulation aforesaid explicitly contemplates that certificate or qualification awarding institute should be recognized by the State Government and the qualification should only be considered if awarded by a recognized institute, while the petitioner-university is not a recognized institute by the State Government, and hence, not eligible to award the qualification in the said course.
17. Lastly, it is urged that the instant writ petition is not maintainable, as the impugned order dated 19 th December, 2016, has already been challenged by the petitioner-university before the Division Bench of this court vide DB SAW No. 1501 of 2016, which is pending till date and the impugned order dated 19th December, 2016, in the instant writ petition, is a consequential order. Therefore, the writ petition is liable to be dismissed at the outset. In order to fortify his stand, learned (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 13 counsel for the respondent-council has relied upon the following opinions:
Gourishankar and Anr. Vs. State of Rajasthan and Ors.:DBSAW No.1097/2013, decided on 8th May, 2015.
State of Andra Pradesh Vs. Viswanandula Chetti Babu and Ors. [(2010) 15 SCC 103] Ajju Khan Vs. State of Rajashtan and Anr. Rajasthan and other connected writ petitions: SBCWP No. 700/2016 decided on 19-9-2016.
18. Heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at bar and the opinions referred to and relied upon.
19. Considering the entire factual matrix, materials available on record and pleadings of the parties in the writ petition in totality, this court can safely conclude that in fact the crux of the matter and the issue, in dispute, in substance is that-whether the respondent-council can cancel or invalidate the Diplomas in Para Medical courses, awarded by the petitioner-university, vide Office Order No. 4454 of 2016 dated 19th December, 2016?
20. In view of the conspicuous factual matrix of the case at hand as noted hereinabove; indisputably, the petitioner- university is a private university and is recognized by the UGC. Diploma in Medical Lab Technology, is a course specifically mentioned in the Schedule II of the NIMS University (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 14 Rajasthan, Jaipur Act, 2008 and approvals obtained from the All India Council for Technical Education (for short, "AICTE"), to run the said course; thus, qualifies the petitioner-university to run the said course with the status of the course as recognized in view of approval accorded by AICTE, a statutory body. Admittedly, the respondent-council came into existence in view of enactment of the Rajasthan Para Medical Council Act, 2008, in the year 2008, although the respondent-council started functioning only in the year 2014. Thus, the petitioner-university had the approval of the state statutory body before the respondent-council started functioning and the admissions were made through counseling from Directorate of Technical Education in the course, strengthen the said stand thereof.
21. The respondent-council also admitted the fact that it had accorded recognition to the petitioner-university vide communication dated 24th November, 2015, for onward academic sessions only. Earlier academic sessions for the course involved herein were approved by the statutory authority before the respondent-council came into existence.
22. In the case of Sultan Singh (supra), vide order dated 19th September, 2016, the plea of the petitioners therein was rejected, on the premise that none of the Universities were having recognition of the qualification from an expert body or (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 15 council. For the petitioner-university had prescribed the said course under Schedule II of the NIMS University Rajasthan, Jaipur Act, 2008, and further had the approval of the All India Council for Technical Education, before coming in existence of the respondent-council and later on approval from the respondent-council as well. The petitioner-university, thus, can be said to have proper recognition from the statutory authority from the State to run the course of Diploma in Para Medical Technology.
23. In the case of Maharishi Mahesh Yogi Vedic Vishwavidyalaya Vs. State of Madhya Pradesh and Ors. [(2013) 15 SCC 677], Supreme Court held, thus:
"100. With this, when we come to the other submission of the learned Counsel for the Appellant relating to the challenge made to the proviso added to Section 4., the proviso which has been added is to the effect that no courses should be conducted and no centers should be established or run without the prior approval of the State Government. The contention of the learned Counsel for the Appellant before the Division Bench, as well as before us was that the creation of courses, as well as the centers are governed by the provisions of 1995 Act and such activities of the Appellant University can at best be regulated only by the University Grants Commission, by virtue of the statutory prescription under Section 12 of the University Grants Commission Act, read along with Entry 66 of List-I of the Constitution and that the State Legislature has no competence to deal with the said issue.
101. While dealing with the above contention, the Division Bench after making a detailed reference to (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 16 various Entries commencing from Entries 63 to 66 of List-I, as well as Entry 25 of List-III and also Section 12 of the Universities Grants Commission Act, 1956 ultimately held that having regard to the inclusion of the Appellant University in the list of Universities maintained by the Commission under Section 2(f) of the 1956 Act, as reflected in Annexure P-5, dated 24.08.1988, the existence of Ordinance 15, which came into being in accordance with law that once the University Grants Commission Act is in force, the running of the courses and determination thereof, has to be controlled by the University Grants Commission. The proviso stipulating that no course should be conducted and no centers should be established and run without the prior approval of the State Government. The restriction is so far as it related to conduct of courses is concerned, the same was beyond the Legislative competence of the State Legislature. So holding thus, the Division Bench declared that the proviso so far as it related to the aspect that no course should be conducted and run without the prior approval of the State, was ultra vires and beyond the Legislative competence of the State Legislature.
102. This Court in Prof. Yashpal and Anr. (supra) held in paragraphs 28, 33 and 34 as under:
28. Though incorporation of a university as a legislative head is a State subject (Entry 32 List II) but basically a university is an institution for higher education and research. Entry 66 of List I is 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 the Union. The interplay of various entries in this regard in the three lists of the Seventh Schedule and the real import of Entry 66 of List I have been examined in several decisions of this Court. In Gujarat University v. Krishna Ranganath Mudholkar a decision by a Constitution Bench (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 17 rendered prior to the Forty-second Amendment when Entry 11 of List II was in existence, it was held that 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 Item 11 of List II of the Seventh Schedule clearly indicates that the legislation in respect of excluded matters cannot be undertaken by the State Legislatures. In AIR para 23, the Court held as under: (SCR pp. 137-38)
23..... Power of the State to legislate in respect of education including universities must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or not, be deemed to be restricted. If a subject of legislation is covered by Items 63 to 66 even if it otherwise falls within the larger field of 'education including universities' power to legislate on that subject must lie with Parliament. ... Item 11 of List II and Item 66 of List I must be harmoniously 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.
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33. The consistent and settled view of this Court, therefore, is that in spite of incorporation of universities as a legislative head being in the State List, the whole gamut of the university which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State Legislature on account of a specific entry on coordination and determination of standards in institutions for higher education or research and (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 18 scientific and technical education being in the Union List for which Parliament alone is competent. It is the responsibility of Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained.
34. In order to achieve the aforesaid purpose, Parliament has enacted the University Grants Commission Act. First para of the Statement of Objects and Reasons of the University Grants Commission Act, 1956 (for short "the UGC Act") is illustrative and consequently it is being reproduced below:
The Constitution of India vests Parliament with exclusive authority in regard to 'coordination and determination of standards in institutions for higher education or research and scientific and technical 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.
(Emphasis added)
103. In yet another decision, this Court has held in para 7 of the decision reported in R. Chitralekha (supra) as follows:
7. ...This and similar other passages indicate that if the law made by the State by virtue of entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or difficult the (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 19 exercise of the legislative power of the Parliament under the entry "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the impact of the State law providing for such standards on entry 66 of List I is so heavy or devastating as to wipe out or appreciably abridge the central field, it may be struck down. But that is a question of fact to be ascertained in each case....
104. While considering the submission of the learned senior counsel for the Appellant, it will be worthwhile to make a reference to Section 12 of the University Grants Commission Act, 1956 wherein while describing the functions of the University Grants Commission, it has been stipulated that it is 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 co-ordination 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 hold certain enquiry and do certain other activities. In fact, the Division Bench while holding that conduct of courses come exclusively within the realm of control of the University Grants Commission, apparently relied upon the said provision.
105. In fact the Division Bench has made a specific reference to the expression used in the said Section, while ultimately holding that it was within the exclusive jurisdiction of the University Grants Commission i.e., the running of the Courses. The Division Bench has held to the effect:
(D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 20 "111....we have no hesitation in our mind that once the University Grants Commission Act is in force, the running of the courses and determination thereof has to be controlled by the University Grants Commission".
The said sets of expressions have been more or less borrowed from the expression used in Section 12 itself.
106. When we examine the ultimate conclusion of the Division Bench that such a control by the University Grants Commission will not extend to the running of the centers, we are of the considered view that what all may apply to conduct of courses, should equally apply to the running of centers as well. In this context, it will be worthwhile to make a further reference to the stipulation contained in Section 12 of the University Grants Commission Act, which makes the position clear. Under Section 12, the general duty of the Commission to take in consultation with the Universities or other bodies is concerned, is all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities. It also further stipulates that such a decision should be taken by the University Grants Commission for the purpose of the Universities to perform its functions under the Act. The Division Bench itself has noted that the running of the courses and determination thereof, can be controlled only by the University Grants Commission by virtue of the operation of Section 12. If it is for the University Grants Commission to take a decision in consultation with the Universities, such steps as it thinks fit for the promotion and co-ordination of Universities education, then it will have to be held that, that it should include, apart from the course content, the manner in which education is imparted viz., the process of (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 21 teaching, while at the same time ensuring the standard of such teaching is maintained by deciding as to whether such teaching process can be allowed to be imparted in places other than the University campus viz., in the centers or other colleges.
107. In our considered opinion, Section 12 of the University Grants Commission Act, 1956 would encompass apart from determining the course contents with reference to which the standard of teaching and its maintenance is to be monitored by the University Grants Commission, would also include the infrastructure that may be made available, either in the University or in other campuses, such as the centers, in order to ensure that such standard of education, teaching and examination, as well as research are maintained without any fall in standard. Therefore, while upholding the conclusion of the Division Bench that it is beyond the legislative competence of the State Legislature to stipulate any restriction, as regards the conduct of the courses by getting the approval of the State Government, in the same breath, such lack of competence would equally apply to the running of the centers as well."
24. Apex Court of the land in no uncertain terms held that in view of Section 12 of the University Grants Commission Act, 1956, the running of diploma courses and determination of standards thereof, can only be controlled by the UGC, and it is, therefore, beyond the legislative competence of the State Legislature to stipulate any restrictions, as regards to the conduct of courses by the approval of the State Government. Thus, it is evident and clear that State Government or its authority cannot restrict the running of a diploma course for (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 22 the purpose of approval from the State Government, once the UGC has accorded its approval after proper inspection thereof. And furthermore, the petitioner-university had been accorded the approval of the AICTE as well.
25. The respondent-council has admitted the fact that it had accorded recognition to the petitioner-University vide communication dated 24th November, 2015, for onward sessions only but not for the previous academic sessions. However, in view of the law declared by the Apex Court in the case of Maharishi Mahesh Yogi Vedic Vishwavidyalaya (supra), it has been made clear enough that the State Government doesn't have the legislative competence to restrict the recognition of a course for want of approval from a state statutory authority.
26. In the case of Union of India and Anr. Vs. Ashok Kumar Aggrawal: [(2013) 16 SCC 147], the Apex Court of the land, held thus:
"58. A Constitution Bench of this Court while dealing with a similar issue in respect of executive instructions in Sant Ram Sharma v. State of Rajasthan and Ors. MANU/SC/0330/1967 : AIR 1967 SC 1910, held:
"7....It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 23 and supplement the rule and issue instructions not inconsistent with the Rules already framed.
59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide: Union of India and Ors. v. Majji Jangammayya and Ors. MANU/SC/0470/1976 : AIR 1977 SC 757; P.D. Aggarwal and Ors. v. State of U.P. and Ors. MANU/SC/0671/1987 : AIR 1987 SC 1676; Paluru Ramkrishnaiah and Ors. v. Union of India and Anr. MANU/SC/0405/1989 : AIR 1990 SC 166; C. Rangaswamaiah and Ors. v. Karnataka Lokayukta and Ors. MANU/SC/0441/1998 : AIR 1998 SC 2496; and JAC of Airlines Pilots Association of India and Ors. v. The Director General of Civil Aviation and Ors.: AIR 2011 SC 2220)."
27. A glance of the opinion supra, would reflect that the Supreme Court in unambiguous terms held that the State Authority cannot issue office orders/ memorandum or executive instructions, in contravention to the statutory rules; however, the same can be issued in consonance or as supplement to the statutory rules. Therefore, the State Government can issue orders that are in consonance or in tune with the provisions of the statutory authority, not contrary to it.
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28. Similar view has been expressed in the case of Dr. B. L. Asawa Vs. State of Rajasthan and Ors.: [(1982) 2 SCC 55], where the Supreme Court, held thus:
"11. The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degrees. The Degree of Doctor of Medicine (Forensic Medicine)-M.D. (Forensic Medicine)-of the University of Bihar is included in the Schedule to the Indian Medical Council Act, 1956 as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India. A Post-graduate Medical Degree granted by a University duly established by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country. In the absence of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to any post in such a State. The Division Bench of the High Court was, in our opinion, manifestly in error in thinking that since the Post-graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be treated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the said degree or declaring it as an equivalent qualification. It is common ground before us that the University of Rajasthan does not conduct Postgraduate examinations in the subject of Forensic Medicine and it does not award the degree of M.L. (Forensic Medicine). In order that there should be scope for declaration of 'equivalence' of a qualification obtained from another body, there should be a corresponding qualification (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 25 that can be earned by virtue of passing an examination or test conducted by the concerned University. There can be declaration of equivalence only as between a degree etc. awarded by the concerned University and one obtained from a body different from the concerned University. When the University of Rajasthan does not conduct any examination for the award of the degree of M.L. (Forensic Medicine), there cannot be any question of declaration of 'equivalence' in respect of such a degree awarded by any University. Unfortunately, the State Public Service Commission as well as the Division Bench of the High Court failed to notice this crucial aspect. We may also point out that the declaration of 'equivalence' referred to in Section 23A of the Rajasthan University Act as well as in Clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances can only be in respect of qualifications other than basic or Post-graduate degrees awarded by other statutory Indian Universities in the concerned subjects. In the case of a Post-graduate degree in the concerned subject awarded by a statutory Indian University, no recognition or declaration of equivalence by any other University is called for. This is all the more so in the case of a medical degree-basic as well as Post- graduate-that is awarded by a statutory Indian University and which has been specifically recognised by the Indian Medical Council."
29. At this juncture it will be profitable to take note of the text of regulation 42 of the Rajasthan Para-Medical Council Regulations, 2014, providing the criteria for registration, which reads thus:
"Eligibility for registration.- The following persons shall be eligible for registration, -
(i) who has obtained certificate of a Para-medical course from any Government body or private body permitted by the Government for the purpose who has run the course and awarded (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) 26 certificate before the commencement of these regulations.
(ii) who has passed the Para-medical course from any institution recognized by the Rajasthan Para-
medical Council.
(iii) who has passed the Para-medical course from any institution/ Government body, outside the territories of Rajasthan, recognized for the purpose by the concerned State Government or Central Government.
(iv) who has passed the Para-medical course from any institution, outside the territories of India, recognized for the purpose by the Government of the country concerned and verified by Government of India.
30. A glance of Regulation 42 (i), would reflect that one who has obtained a certificate of a Para-medical course from any Government body or private body permitted by the Government for the purpose to run the diploma course and awarded certificate before the commencement of these regulations; is eligible and entitled for registration. The fact that the petitioner-university had prior approval of the UGC, which is a Government body, is not in dispute; and the petitioner-university had approval from ACITE as well. Thus, it had the authority to run the said Diploma course. Hence, the resistance of the respondent-council on the plea of prior approval from the State Authority; is without any factual foundation.
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31. For the reasons and discussions aforesaid and in view of the singular factual matrix of the case at hand; the writ petition of the petitioner-university, merits acceptance, and is hereby allowed.
32. In the result, impugned order dated 19th December, 2016 (Annexure-1), is hereby quashed.
33. No order as such for costs.
(VEERENDR SINGH SIRADHANA),J pcg (D.B. SAW/986/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 11:37:25 PM) Powered by TCPDF (www.tcpdf.org)