Gujarat High Court
Sandip Harshadray Munjyasara vs State Of Gujarat on 12 June, 2018
Equivalent citations: AIRONLINE 2018 GUJ 151
Author: M.R. Shah
Bench: M.R. Shah, A.Y. Kogje
C/LPA/453/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 453 of 2018
in
SPECIAL CIVIL APPLICATION NO. 89 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/-
and
HONOURABLE MR.JUSTICE A.Y. KOGJE sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SANDIP HARSHADRAY MUNJYASARA
Versus
STATE OF GUJARAT
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Appearance:
PARTY IN PERSON(5000) for the Appellant
MRS MANISHA LAVKUMAR, GOVERNMENT PLEADER(1) WITH MR RONAK RAVAL, ASSISTANT
GOVERNMENT PLEADER, for RESPONDENT No. 1
MR KAMAL TRIVEDI, SENIOR ADVOCATE WITH MR PA JADEJA(3726), ADVOCATE, for
RESPONDENT(s) No. 2 -3
MR AKSHAT KHARE, ADVOCATE FOR MRS SUMAN KHARE(2226) for RESPONDENT No. 4
NOTICE SERVED BY DS(5) for RESPONDENT No. 3
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 12/06/2018
CAV JUDGMENT
Page 1 of 57
C/LPA/453/2018 CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned Single Judge dated 08.03.2018 in Special Civil Application No.89/2017 with Civil Application No.2/2017, by which the learned Single Judge has dismissed the said petition and has refused to grant the reliefs as prayed in the said petition, the original petitioner No.1 - Party-in-Person has preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent.
2. The facts leading to the present Letters Patent Appeal in nutshell are as under:
2.1 That respondent No.2 - Gujarat Forensic Sciences University (hereinafter referred to as "GFSU" / "respondent-
University" for short) has been established and incorporated under the Gujarat Forensic Sciences University Act, 2008, by the legislature of the State of Gujarat with an objective of fulfilling the acute shortage against increasing demand for forensic experts in the country. That respondent No.2 - University has established an institute in the name and style of Institute of Forensic Science (respondent No.3 herein) for imparting education and training in various disciplines of Page 2 of 57 C/LPA/453/2018 CAV JUDGMENT forensic sciences at the level of post-graduation. That from the academic year 2014-15, respondent No.2 - University introduced and commenced a new course, being Master of Technology in Cyber Security and Incident Response, i.e. M.Tech. (Cyber Security and Incident Response). At this stage, it is required to be noted that the respondent - University has been recognized by the University Grants Commission (hereinafter referred to as "the UGC") and is a State University under Section 22 of the University Grants Commission Act, 1956, to award degrees, in May 2011. Therefore, respondent No.2-University and respondent No.3-Institute run by respondent No.2-University are bound to comply with the Regulations framed by the UGC, amended from time to time, more particularly, the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010. Therefore, respondents No.2 and 3 are required to have the qualified, eligible and required number of faculties to impart education. As observed hereinabove, in 2014-15, the respondent-University and the institution started the course of M.Tech (Cyber Security and Incident Response). That the petitioners secured admissions in Page 3 of 57 C/LPA/453/2018 CAV JUDGMENT the M.Tech (Cyber Security and Incident Response) course in the respondents - University / Institution and in the academic year 2016-17. That M.Tech (Cyber Security and Incident Response) programme is a two-year course comprising of total four semesters. It is the case on behalf of the appellant that based on the promises held out in the prospectus in which it was specifically stated that the number of faculties were available, the petitioners got the admission in the aforesaid course. According to the petitioners, when they got the admission and started pursuing studies, it was found that the respondents - University / Institution were not having sufficient required number of faculties and even eligible faculties and on the contrary, the aforesaid course was being conducted and education was imparted by outsourced faculties for which a Memorandum of Understanding was signed between GSFU and eSF Labs Limited on 02.06.2014 to provide for expert facilities for conducting the courses which included the courses for which the petitioners took admission. Even the fee structure was fixed by the University and the Institution and not by the Committee constituted under the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, amended from time to time.
Page 4 of 57 C/LPA/453/2018 CAV JUDGMENT 2.2 According to the petitioners, therefore, first they approached the Ombudsman/ Grievance Redressal Committee of the University making a specific grievance that there are no eligible and required number of faculties and that education is being imparted by outsourced faculties. It is the case on behalf of the petitioners that the Director, IFS - GFSU responded to the aforesaid and stated that they have already submitted a letter with respect to the requirement to the administration of the University for permanent faculty for M.Tech. (Cyber Security and Incident Response) course recently and they are expecting to get suitable and well qualified teachers. It is the case on behalf of the petitioners thereafter, however nothing further was done despite number of representations/ requests. It is the case on behalf of the petitioners that even the students approached the UGC to intervene and see to it that the requisite number of faculties and eligible faculties as per the norms prescribed by the UGC Rules and Regulations are made available.
2.3 As nothing was done, the petitioners approached this Court by way of Special Civil Application No.89/2017, making the specific grievance with respect to non-availability of the required number of faculties and eligible faculties in the M.Tech. Course which was required as per the UGC regulations Page 5 of 57 C/LPA/453/2018 CAV JUDGMENT and also making grievance that the fee structure is determined and fixed by the University and/or Institution and not by the Fee Regulation Committee appointed by the State constituted under the provisions of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (hereinafter referred to as "the RAFF Act"), amended from time to time.
2.4 By the impugned judgment and order, the learned Single Judge has dismissed the said petition mainly on the ground that once the petitioners have obtained admissions voluntarily, and having undergone the studies for some time, the petitioners are estopped from raising the contentions with regard to insufficient faculty and infrastructure and it is too late to raise the contention about the fee or the fee structure and the faculty or infrastructure. Learned Single Judge has further observed while dismissing the petition that the petitioners voluntarily applied and got admission and having undergone the courses, now cannot be permitted to question the method of fixation of fee or the financial structure. The learned Single Judge has observed that the persons like the petitioners, having voluntarily taken up admission and pursued the course are estopped from raising such contention. It is further observed by the learned Single Judge that it is for the Page 6 of 57 C/LPA/453/2018 CAV JUDGMENT petitioners either to pursue the studies or not to continue studies if it is found unsuitable or if it is found that the fees charged is higher. Learned Single Judge has further observed that once having taken the admission voluntarily, the petitioners are estopped from raising all such contentions inasmuch as the petitioners cannot compel or advise the respondents with regard to the nature of studies or syllabus or the courses and/or fixation of fees. It is further observed by the learned Single Judge that the petitioners could have apprised themselves before getting the admission and could have made themselves equipped with all details, both with regard to the facility and/or fee structure and could have taken the decision. Learned Single Judge has further observed that RAFF Act may not have any application in the light of special statute by which respondent No.2-University is established. Learned Single Judge has further observed that when a University is established by special statute with a purpose and when a decision has been taken by the Government to keep it outside the purview of the Fee Regulatory Committee and it has been further clarified by the Notification dated 04.10.2017, RAFF Act shall not be applicable. Therefore, by impugned judgment, the learned Single Judge has dismissed the petition and has refused to grant the reliefs prayed/ sought in the petition, in Page 7 of 57 C/LPA/453/2018 CAV JUDGMENT exercise of powers under Article 226 of the Constitution of India.
2.5 Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the learned Single Judge, the original petitioner No.1 - student of respondent No.3 institution pursuing studies in M.Tech. (Cyber Security and Incident Response) course has preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent.
3. The appellant - original petitioner No.1 - Shri Sandip Harshadray Munjyasara, has appeared as Party-in-Person. 3.1 The appellant - Party-in-Person has vehemently submitted that in the facts and circumstances of the case, the learned Single Judge has materially erred in dismissing the petition and refusing to grant the reliefs as prayed in the petition.
3.2 It is vehemently submitted by Shri Sandip Harshadray Munjyasara, appellant-Party-in-Person that the grounds on which the learned Single Judge has dismissed the petition and has refused to grant reliefs as prayed in the main petition are not sustainable in law at all.
Page 8 of 57 C/LPA/453/2018 CAV JUDGMENT 3.3 It is vehemently submitted by Shri Sandip Harshadray Munjyasara, appellant-Party-in-Person that the learned Single Judge has materially erred in dismissing the petition on the ground that once the original petitioners have taken the admission with open eyes, thereafter, it is not open for them to make any grievance either with respect to lack of faculties and/or infrastructure facilities and/or even with respect to the fees/ fee structure.
3.4 It is vehemently submitted by the appellant - Party-in- Person that the observations made by the learned Single Judge that once the petitioners got the admission, thereafter it is not open for them to make any grievance and that if the petitioners are not satisfied, in that case, they may leave the institution, is not sustainable in law. It is submitted that as such, only after the admissions are taken and the students pursue the studies, then and then only they will be able to know the deficit in infrastructure, and/or even lack of qualified faculties.
3.5 It is further submitted by Shri Sandip Harshadray Munjyasara, the appellant-Party-in-Person that as such, the petitioners and other students got the admissions on the basis of the brochure and names of the faculties were also given and Page 9 of 57 C/LPA/453/2018 CAV JUDGMENT as such, on such representation, the petitioners and other students got admission. It is submitted that however, after the petitioners and other students started pursuing further studies, they came to know that there are no sufficient number of faculties and that too, qualified faculties. 3.6 It is further submitted by Shri Sandip Harshadray Munjyasara, the appellant-Party-in-Person that as such, the respondent-University and the Institution are bound to appoint the requisite qualified faculties as per the norms/ regulations by the UGC. It is submitted that without any requisite number and qualified faculties, students will not get better education which is their fundamental right and more particularly, when they are paying handsome fees to the Institute. 3.7 It is further submitted by Shri Sandip Harshadray Munjyasara, the appellant-Party-in-Person that as such, the respondent-University and the Institution were imparting education by outsourced agencies/ institution, namely eSF Labs Limited, which as such is not permissible at all and which shall not be in the larger interest of the students. It is submitted that to give education by outsourcing the faculties is unknown and the same shall not be permitted. It is submitted that giving education through such outsourced Page 10 of 57 C/LPA/453/2018 CAV JUDGMENT agencies may be permissible over and above the regular faculties required to be appointed as per the regulations of the UGC and the same shall be in addition to but not substitute of the regular faculties which are required to be appointed as per the norms/ regulations of the UGC.
3.8 It is further submitted by Shri Sandip Harshadray Munjyasara, the appellant-Party-in-Person that the learned Single Judge has not properly appreciated the fact that by not providing the sufficient eligible qualified faculties, ultimately the students and education shall be suffering which shall not be in the larger public interest as well as in the interest of the students.
3.9 Now so far as the applicability of the provisions of the RAFF Act and the Rules to the respondents - University and the Institution is concerned, it is vehemently submitted by Shri Sandip Harshadray Munjyasara, the appellant-Party-in-Person that any Notification and/or provision either under the Gujarat Forensic Sciences University Act and/or by the State Government exemption respondent No.2 - University and/or respondent No.3 - Institution from the purview of the RAFF Act shall be contrary to the provisions of RAFF Act as per Section 19 of the RAFF Act and the said Act shall prevail over any other Page 11 of 57 C/LPA/453/2018 CAV JUDGMENT law for the time being in force framed by the State Government. It is submitted that therefore, the learned Single Judge has materially erred in observing and holding that the RAFF Act shall not be applicable to respondents Nos.2 and 3 - University and Institution.
3.10 It is further submitted by Shri Sandip Harshadray Munjyasara, the appellant-Party-in-Person that even otherwise, considering Section 13A of the RAFF Act, unless and until such University / Institution is declared as Center of Excellence after following due procedure under the provisions of the Gujarat Professional Technical Educational Colleges or Institutions (Procedure for Declaration of Centre of Excellence) Rules, 2014, such University like the respondent No.2 shall not be exempted from the purview of the RAFF Act. It is submitted that the aforesaid has not been appreciated at all by the learned Single Judge.
3.11 It is further submitted by Shri Sandip Harshadray Munjyasara, the appellant-Party-in-Person that the learned Single Judge has materially erred in observing while dismissing the petition that once the petitioners - students got the admission, thereafter, it is not open for them to make any grievance with respect to fee or fee structure. It is submitted Page 12 of 57 C/LPA/453/2018 CAV JUDGMENT that as such, there cannot be estoppel against the statute. It is submitted that the question before the learned Single Judge was the applicability of RAFF Act insofar as respondents No.2 and 3 are concerned. It is submitted that therefore, so long as respondents No.2 and 3 are not declared as Center of Excellence as per Section 13A of the RAFF Act, the RAFF Act shall be applicable and that fee/ fee structure is required to be regulated under the RAFF Act and by the Fee Regulatory Committee appointed under the Act.
In support of his above submission, the appellant - Party- in-Person has heavily relied upon the decision dated 10.04.2018 of this Court in the case of Sandip Harshadray Munjyasara v. Raksha Shakti University - Writ Petition (PIL) No.62/2018 by which in the similar facts and circumstances and with respect to Raksha Shakti University, it is held that the said University is subject to the provisions of the RAFF Act. 3.12 It is further submitted by Shri Sandip Harshadray Munjyasara, the appellant-Party-in-Person that the learned Single Judge has not properly appreciated the fact that as such, it was the duty of respondent No.4 - UGC to see that respondents No.2 and 3 shall appoint the required number of qualified faculties as per the norms framed by the UGC and it Page 13 of 57 C/LPA/453/2018 CAV JUDGMENT is the duty of respondent No.4 to see that respondent No.2, the University which is recognized by the UGC, shall maintain excellent standards of education.
3.13 Making the above submissions and relying upon the following decisions, it is requested to allow the present appeal and quash and set aside the impugned judgment and order passed by the learned Single Judge dismissing the petition and grant the reliefs as prayed for in the main petition:
i) T.M.A. Pai Foundation & Anr. V. State of Karnataka & Ors - (2002)8 SCC 481,
ii) Islamic Academy of Education & Anr. V. State of Karnataka & Ors. - (2003)6 SCC 697,
iii) P.A. Inamdar & Ors. V. State of Maharashtra & Ors - (2005)6 SCC 537,
iv) Judgement of this Court in the case of Sandip Harshadray Munjyasara v. Raksha Shakti University -
WP(PIL) No.62/2018 dated 10.04.2018
4. Shri Kamal B. Trivedi, learned Senior Advocate has appeared with Shri P.A.Jadeja, learned advocate on behalf of respondents No.2 and 3.
4.1 At the outset, it is required to be noted that Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 has, as such, fairly conceded that the reasons and/or the grounds on which the learned Single Judge has Page 14 of 57 C/LPA/453/2018 CAV JUDGMENT dismissed the petition may not be sustainable in law and that respondents No.2 and 3 may not subscribe to the reasons / grounds on which the learned Single Judge has dismissed the main petition. Shri Trivedi, learned Senior Advocate appearing on behalf of respondents No.2 and 3, however, has submitted that even otherwise, on merits independently, the petition is required to be dismissed.
4.2 Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 has submitted that respondent No.2 - Gujarat Forensic Sciences University has been established and incorporated under the Gujarat Forensic Sciences University Act, 2008, by the legislature of the State of Gujarat with an objective of fulfilling acute shortage against increasing demand of forensic experts in the country and the world. It is submitted that pursuant to the aforesaid, one of the prime functions of respondent No.2 - University is to provide specifically designed academic training programmes in various technologies of forensic sciences through such centers and institutions as may be created by respondent No.2 - University. It is submitted that accordingly respondent No.2 - University established an institute in the name and stile of Institute of Forensic Science, respondent No.3 herein, for imparting education and training in various disciplines of Page 15 of 57 C/LPA/453/2018 CAV JUDGMENT forensic science at the level of post graduation. It is submitted that apropos and in furtherance of the aforesaid, from the academic year 20154-15, respondent No.2-University introduced and commenced a new course, being Master of Technology in Cyber Security and Incident Response, i.e. M.Tech (Cyber Security and Incident Response). 4.3 Now so far as the submission on behalf of the petitioners on inadequacy of faculty members and not appointing requisite number and eligible qualified faculties as per the UGC norms is concerned, it is submitted by Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 that UGC (Affiliation of Colleges offering Technical Education by Universities) Regulations, 2014 ("UGC Regulations 2014"
for short) provide for norms for faculty for technical institutions affiliated or seeking affiliation with Universities. That the said UGC Regulations 2014 are not applicable to respondent No.2 -
University or respondent No.3 - Institute inasmuch as respondent No.3 - Institute is having no separate existence from respondent No.2 - University and is not an institution affiliated to respondent No.2 - University. It is submitted that the UGC Regulations 2014 are intended to apply to general discipline of engineering. The course offered by respondent No.2 - University is a specialized course in cyber security and Page 16 of 57 C/LPA/453/2018 CAV JUDGMENT incident response and not a generic course in engineering as understood in common parlance.
4.4 Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 has further submitted without prejudice to the aforesaid that since it is an endeavour to develop respondent No.2 - University as a center for academic excellence with a view to inculcate global capabilities in students, respondents No.2 and 3 are open to all suggestions for achieving such standards of education.
4.5 It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 that therefore, applying UGC Regulations, 2014, as a guiding principle, respondent No.2 - University is required to maintain a student to teacher ratio of 1:12. It is submitted that currently, respondent No.2- University has an intake of 50 students per annum for the first year of M.Tech (Cyber Security and Incident Response) course. That in second year of the said course, students are required to undertake on-field assignments such as projects and/or internships which are secured through campus placement model. It is submitted that therefore, for the purpose of teaching sessions in the first year of the said course, for 50 students, respondent No.2-University Page 17 of 57 C/LPA/453/2018 CAV JUDGMENT is required to have 4 teaching faculty members. It is submitted that as per the UGC Regulations, 2014, from amongst the faculty members, respondent No.2-University is required to maintain a teachers' cadre ratio of 1 (Professor): 1 (Associate Professor) : 2 (Assistant Professors). That pursuant to the aforesaid requirement, respondent No.2-University has 1 Associate Professor and 4 Assistant Professors teaching the said course. It is submitted that therefore as on date, in order to fully comply with the requirements of teachers' cadre ratio prescribed under the UGC Regulations, 2014, the respondent No.2 - University is required to appoint one Professor. Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 has suggested that respondent No.2 shall undertake the process of appointment of one Professor forthwith for the said course, if found to be eligible and possessing requisite knowledge for the said course. 4.6 Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 has submitted that as such, respondent - University has been making continuous efforts to recruit eligible teaching faculties at various levels, including that of Professor. That however, due to the nature of specialized courses offered by respondent No.2-University, it is difficult to recruit faculty possessing specific expertise and Page 18 of 57 C/LPA/453/2018 CAV JUDGMENT qualifications. That as such, respondent No.2 - University is a first of its kind in the country and one of its fundamental objectives is to develop skilled teachers and teaching patterns in the field of forensic sciences. It is submitted that as a matter of fact, two faculty members, namely, Shri Dharmesh C. Dave and Shri Jaidip Kotak, currently employed at respondent - University for teaching the aforesaid course are alumni of respondent - University who have pursued their M.Tech. (Cyber Security and Incident Response) from the University itself. It is submitted that therefore in the initial stages of the inception of the course in M.Tech (Cyber Security and Incident Response), respondent No. 2-University had developed academic association with eSF Labs Limited, experts in the said field for taking academic sessions for the students. However, on account of now there being sufficient faculty, the services of the said eSF Labs Limited have been dispensed with since December, 2016.
4.7 So far as the submission on behalf of the petitioners with respect to the qualified faculty members and regarding the qualifications of appointed faculty members and the submission on behalf of the petitioners that two faculty members, namely Dr.Parag H. Rughani and Dr.Digvijaysinh Rathod are not qualified to teach in M.Tech. Programme as Page 19 of 57 C/LPA/453/2018 CAV JUDGMENT they do not possess the requisite qualifications under the UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for Maintenance of Standards in Higher Education, 2010 (hereinafter referred to as "the UGC Regulations, 2010"), is concerned, it is submitted by Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 that as such, both the aforesaid faculties are having requisite minimum qualification required. That as such, the UGC Regulations 2010 shall not be applicable as sought to be contended on behalf of the petitioners. It is submitted that insofar as respondent No.2-University is concerned, the UGC Regulations, 2010, are merely directory and not mandatory in nature. In support of his above submission, Shri Kamal Trivedi, learned Senior Advocate appearing for respondents Nos.2 and 3 has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Kalyani Mathivananan v. K.V.Jeyaraj, reported in (2015)6 SCC 363, more particularly, Paragraphs 27, 62.3 and 62.4. It is submitted that therefore, since respondent No.2 - University being a University established by an Act of the State Legislature, the UGC Regulations, 2010, are not binding on the respondent-University.
Page 20 of 57 C/LPA/453/2018 CAV JUDGMENT 4.8 Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 has submitted that merely on the basis of the nomenclature - M.Tech., the said course offered by respondent No.2 - University should not be categorized as an engineering course.
4.9 Now so far as the submission on behalf of the petitioners on applicability of RAFF Act with respect to the course in question - M.Tech (Cyber Security and Incident Response) offered by respondent No.2-University is concerned, it is submitted by Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 that the said contention is misplaced inasmuch as the Fee Regulatory Committee constituted under the RAFF Act, only has the authority to determine and fix fee structure in unaided professional technical colleges and institutions. It is submitted that insofar as the aided institutions and colleges are concerned, the Fee Regulatory Committee does not have authority to determine their fee structure. It is submitted that respondent No.2 is an aided University. It is submitted that as per Section 25 of the Gujarat Forensic Sciences University Act, 2008, respondent No.2-University discharges its functions from payments made by the State Government. That therefore, since respondent No.2-University is an aided University, the Fee Regulatory Page 21 of 57 C/LPA/453/2018 CAV JUDGMENT Committee does not have the authority to determine its fee structure.
4.10 It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 that even Section 35(xi) read with Section 7 (xviii) of the Gujarat Forensic Sciences University Act, 2008, respondent No.2 - University is permitted to fix, demand, receive or recover fees and such others charges from the students by way of Regulations. It is submitted that in exercise of powers under the Gujarat Forensic Sciences University Act, 2008, respondent No.2 - University has its own regulations - Gujarat Forensic Sciences University Regulations, 2009. As per the said Regulations, the fee structure for a particular course offered by respondent No.2-University is to be approved by the Board of Governors of respondent No.2-University after the same is determined by the Finance Committee of respondent No.2- University. That therefore, the fee structure determined by respondent No.2-University is in accordance with the powers conferred under the Gujarat Forensic Sciences University Act and the Regulations made thereunder. It is submitted that the fee structure is determined by eminent and qualified persons and thus should be upheld.
Page 22 of 57 C/LPA/453/2018 CAV JUDGMENT 4.11 It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 that even otherwise, by a Government Resolution dated 04.10.2017, the course of M.Tech. (Cyber Security and Incident Response) has been excluded from the purview of the application of RAFF Act, 2007 and the Rules framed thereunder.
4.12 It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 that even otherwise, on merits also, actual fees determined and charged from the students is absolutely just and proper and the same is not required to be interfered with by which Court in exercise of powers under Article 226 of the Constitution of India. It is submitted that there is a large variance in the cost of imparting education incurred by respondent No.2-University with the actual fees charged from the students. It is submitted that respondent No.2-University incurs exemplary cost on the setting up and maintaining state of the art infrastructure facilities required for such advanced course of study. It is submitted that the fee structure charged and recovered from the students is infinitesimal in comparison to the actual cost of imparting education.
Page 23 of 57 C/LPA/453/2018 CAV JUDGMENT 4.13 It is further submitted by Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 that considering the summary of the cost of imparting education incurred by respondent No.2 - University for the academic years 2014-15, 2015-16 and 2016-17, details of which are produced on record, the prayer of the appellant that the fee structure of the course of M.Tech (Cyber Security and Incident Response) should be Rs.1,500/- at par with the other Government and Government grant-in-aid institutions and colleges is misplaced and misconceived inasmuch as the said fee structure has been prescribed for the colleges and institutions offering M.Tech in general field of engineering which would not require the scale of infrastructure and sophistication of equipment required in the advanced courses of forensic sciences.
4.14 It is submitted by Shri Kamal Trivedi, learned Senior Advocate appearing for respondents No.2 and 3 that therefore, the prayer of the appellant to have the fee structure of the course of M.Tech. (Cyber Security and Incident Response) of Rs.1500/- at par with other Government and Government grant-in-aid institutions and colleges is misplaced inasmuch as the said fee structure has been prescribed for colleges and institutions offering M.Tech. in general field of Page 24 of 57 C/LPA/453/2018 CAV JUDGMENT engineering which would not require the scale of infrastructure and sophistication of equipment required in the advanced courses of forensic sciences.
4.15 Making above submissions, it is requested to dismiss the present appeal and in the alternative, it is requested to make suitable suggestions as submitted hereinabove by further submitting that respondents Nos.2 and 3, University and Institution are ready to accept any suggestion from this Court for achieving excellence in standard of education.
5. Mrs.Manisha Lavkumar, learned Government Pleader has appeared on behalf of respondent No.1 - State of Gujarat. Referring to Section 10 of the RAFF Act, it is submitted that the Act shall be applicable to unaided professional educational colleges or institutions. It is submitted that respondent No.2 - University is an aided University and therefore, the Fee Regulation Committee will have no jurisdiction to determine the fee structure so far as respondents No.2 and 3 are concerned.
5.1 It is further submitted by Mrs. Manisha Lavkumar, learned Government Pleader appearing on behalf of respondent No.1 - State of Gujarat that even otherwise, considering Sections 7 Page 25 of 57 C/LPA/453/2018 CAV JUDGMENT and 35 of the Gujarat Forensic Sciences University Act, 2008, the respondent - University is empowered to fix, demand and receive fees from the students.
5.2 Now so far as the reliance placed upon Rule 15 of the Master of Engineering and Technology and Master of Pharmacy Courses (Regulation of Admission and Payment of Fees) Rules, 2013, relied upon by the petitioners, it is submitted by Mrs.Manisha Lavkumar, learned Government Pleader appearing for respondent No.1 that the State Government has exempted the GSFU, i.e. the respondent-University and the M.Tech. course offered by the GSFU under Rule 13 from the purview of RAFF Act vide Resolution dated 04.10.2017. 5.3 It is submitted by Mrs.Manisha Lavkumar, learned Government Pleader that as such, vide communication dated 20.02.2017, the Fee Regulatory Committee (Technical) informed the Registrar of GSFU to approach the Committee for determination of the fees structure for the M.Tech and MBA courses. The Admission Committee for Professional Courses also addressed a letter to the Registrar of GSFU asking to provide the Notification / approval, if any, granted by the Government of Gujarat for carrying out admission process. It is further submitted that vide communication dated 26.04.2017, Page 26 of 57 C/LPA/453/2018 CAV JUDGMENT the Additional Chief Secretary, Home Department, State of Gujarat, was informed by the Registrar, GSFU, that since the GSFU is a 100% grant-in-aid State University established by the Government of Gujarat under the aegis of Department of Home and funded by the Government of Gujarat, exemption may be granted to the GSFU from the purview of Fee Regulatory Committee and Admission Committee for Professional Courses. That accordingly, the Government of Gujarat, through its Home Department, after necessary consultation with the Department of Education, granted exemption as requested by the GSFU vide Resolution dated 04.10.2017. It is submitted that the said Resolution has been published now in the Government Gazette on 23.04.2018. It is submitted that therefore, the fee structure determined by the respondent-University is in accordance with the Gujarat Forensic Sciences University Act, 2008, and the Resolution dated 04.10.2017 issued by the State Government.
6. Heard the appellant - original petitioner No.1 who has appeared as Party-in-Person, Shri Kamal Trivedi, learned Senior Advocate on behalf of respondents Nos.2 and 3 - Gujarat Forensic Sciences University and the institute and Mrs.Manisha Lavkumar, learned Government Pleader, on behalf of respondent No.1 - State of Gujarat.
Page 27 of 57 C/LPA/453/2018 CAV JUDGMENT
7. At the outset, it is required to be noted that in the petition before the learned Single Judge, the petitioners - students, who are prosecuting their studies in the course of M.Tech (Cyber Security and Incident Response) in the respondents Nos.2 and 3 University and Institute, made twofold grievances, namely (i) inadequacy of faculty in respondent No.3 - Institute and (ii) determination of fee structure for M.Tech (Cyber Security and Incident Response) course.
8. By the impugned judgment and order, the learned Single Judge has dismissed the aforesaid petition mainly on the grounds that once the petitioners got the admission, thereafter it will not be open for them to make a grievance with respect to fee/ fee structure and/or any shortfall in providing infrastructure and even the inadequacy of faculty and that if the petitioners are not satisfied, in that case, the petitioners may leave the college/ institute. Learned Single Judge has dismissed the petition also on the ground that in view of the provisions of the Gujarat Forensic Sciences University Act, 2008, and the Government Notification dated 04.10.2017, by which the course in which the petitioners are prosecuting their studies is exempted from the purview of the relevant Rules, the RAFF Act and/or relevant Rules shall not be Page 28 of 57 C/LPA/453/2018 CAV JUDGMENT applicable to the course in question conducted by respondents No.2 and 3 and therefore, the Fee Regulatory Committee constituted under the provisions of the RAFF Act shall have no jurisdiction to determine the fee structure for the aforesaid course. Feeling aggrieved and dissatisfied with the impugned judgment and order, the original petitioner No.1 has preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent.
9. At the outset, it is required to be noted that as such, Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of respondents No.2 and 3, has categorically stated at the Bar that the grounds on which the learned Single Judge has dismissed the petition, namely, that (i) once the petitioners have got the admission, thereafter it will not be open for them to make any grievance with respect to fee or fee structure and/or (ii) even with respect to inadequacy of the faculty and/or any other infrastructure facilities and (ii) if the petitioners are aggrieved and/or not satisfied, they may leave the course, respondents No.2 and 3 do not subscribe to the said view. Shri Kamal Trivedi, learned Senior Advocate has stated at the Bar that respondents No.2 and 3 specifically and categorically believe in excellence in education and since it is an endeavour of respondent No.2 - University as a center of Page 29 of 57 C/LPA/453/2018 CAV JUDGMENT academic excellence to inculcate global capabilities in students, respondents No.2 and 3 are open to all suggestions for achieving such standards of education.
10. Having heard appellant - Party-in-Person and the learned counsel appearing on behalf of the respondents and considering the impugned judgment and order passed by the learned Single Judge and the grounds on which the learned Single Judge has dismissed the petition and has refused to grant reliefs to the original petitioners as prayed in the main petition, namely, (i) once the petitioners have got the admission, thereafter it will not be open for them to make any grievance with respect to fee or fee structure and/or (ii) even with respect to inadequacy of the faculty and/or any other infrastructure facilities and (ii) if the petitioners are aggrieved and/or not satisfied, they may leave the course, we are of the considered opinion that the grounds/ reasons on which the learned Single Judge has dismissed the petition are not sustainable, firstly, on the ground that the students get the admission in an Institute relying upon the representation made to them in the form of Brochures or other materials and thereafter, after getting the admission and while prosecuting studies, if it is found by students that what was represented at the time of admission was false and/or there are no requisite Page 30 of 57 C/LPA/453/2018 CAV JUDGMENT qualified number of faculties and/or infrastructure is lacking, it is always open to the students even after getting the admission to make a grievance. If the students make such grievance subsequently, firstly before the Grievance Redressal Committee and/ or appropriate authority and still the defects are not cured, it is always open for such students to approach the court and seek appropriate reliefs directing the University/ Institution to have sufficient number of qualified faculties. Secondly, even with respect to the fee structure also, there cannot be any estoppel against the statute. If it is found that a particular course is government by the specific statutory rules, more particularly, with respect to the fee structure, it is always open for the students to make a grievance with respect to the fee structure even after getting the admission. Merely because students got the admission, they cannot be restrained from ventilating their grievances and they cannot be restrained from seeking the writ directing the concerned Institution/ University to follow the law and/or statutory provisions. Therefore, the aforesaid grounds on which the learned Single Judge has refused to grant reliefs to the original petitioners are not sustainable under the law and cannot be accepted.
11. Now so far as the grievance made by the original Page 31 of 57 C/LPA/453/2018 CAV JUDGMENT petitioners that students who are prosecuting their studies in M.Tech. (Cyber Security and Incident Response) course in respondents No.2 and 3 firstly with respect to inadequacy of faculty and /or non-availability of qualified faculty and/or non- appointment of eligible faculties as per the norms prescribed by the UGC is concerned, while considering the aforesaid issue, the observations made by the Hon'ble Supreme Court in a few decisions are required to be referred to. 11.1 In the case of Unni Krishnan. J.P. And Ors. v. State of A.P.And Ors. reported in (1993)1 SCC 645, it is observed and held by the Hon'ble Supreme Court that though right to education is not stated expressly as a fundamental right, it is implicit and flows from right to life guaranteed under Article 21 of the Constitution having regard to the broad and expansive interpretation given by Courts. It is further observed that right to education has been treated as one of the transcendental importance. It has fundamental significance to the right of an individual and the nation. It is further observed that without education being provided to the citizens of this country, the objectives set forth in the preamble to the Constitution cannot be achieved, and the Constitution would fail. 11.2 In the case of Secretary, Mahatma Gandhi Mission Page 32 of 57 C/LPA/453/2018 CAV JUDGMENT And Another v. Bhartiya Kamgar Sena And Others reported in (2017)4 SCC 449, recently, the Hon'ble Supreme Court had an occasion to consider the importance of the role of education in the life of human beings. The Hon'ble Supreme Court has observed and held in Paragraphs 34 to 48 as under:
"34. Importance of the role of education in the life of hu- man beings is well known to the society which invented the concept of 'Zero'. Even the colonial Rulers estab- lished educational institutions and encouraged the estab- lishment of educational institutions by non-state actors by introducing a system of supporting them by providing financial aid to some extent. The very fact that the makers of the Constitution of India chose to refer to "aid out of State funds" to educational institutions in Article 29(2)[17] and "aid to educational institutions" in Article 30(2)[18], is proof of the fact that the makers of the Con- stitution took note of the need to financially support edu- cational institutions established even by non- state act- ors.
35. Education is one of the most vital elements for pre- servation of the democratic system of Government. The Supreme Court of America in Wisconsin v. Yoder, 406 US 205 (1972) observed:
" 25. ... some degree of education is necessary to prepare citizens to participate effectively and intelli- gently in our open political system if we are to pre- serve freedom and independence. ..."Page 33 of 57 C/LPA/453/2018 CAV JUDGMENT
36. Education becomes a basic tool for individuals to lead an economically productive life. An economically product- ive life of the individual not only improves the quality of life of the individual and his family but also contributes to some extent to the benefit of the society at large. Pro- duction of goods and services to a large extent depend upon the availability of technically qualified human re- sources. Technical education therefore has the potential to directly contribute to the economic prosperity of a technically qualified individual as well as the society.
37. This Court in Unni Krishnan, J.P. & Others v. State of Andhra Pradesh & Others, (1993) 1 SCC 645, took note of the fact that "education is the second highest sector of budgeted expenditure after the defence" and also that it constitutes "3 per cent of the Gross National Product is spent in education".
38. This Court took note of the mandate of Article 41 "to illustrate the content of the right to education flowing from Article 21" and the fact that:
"182....The right to free education is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic ca- pacity and development".
Finally, this Court held that:
"183. .... the right to education is implicit in the right to life because of its inherent fundamental importance".
and therefore an aspect of Article 21 of the Constitution. Parliament endorsed the conclusion of this Court and amended the Constitution to make an express declara- Page 34 of 57 C/LPA/453/2018 CAV JUDGMENT tion of the fundamental right to education by inserting Article 21A.
39. Education is an important factor for maintaining democracy and the economic well-being of the society. Therefore, the Constitution of India bestows considerable attention to the field of education. It recognizes the need for regulating the various facets of activity of education and also the need for not only establishing and adminis- tering educational institutions but also providing financial support for the educational institutions run by private / non-state actors.
40. A brief sketch of the development of the system of college education in this country would certainly help to understand the problem on hand. Establishment of col- leges imparting education based on the English Educa- tion System[21] predated the establishment of universit- ies in this country. Colleges were and are still being es- tablished by individuals, societies, trusts, etc. (herein- after collectively referred to as "non-State actors") apart from the Governments or other instrumentalities of State. Universities were established in the provinces of British India in imitation of London University as it then was. They all began as purely examining bodies with the power to confer degrees. They were not teaching uni- versities. In 1902, the Indian Universities Commission was appointed. It was followed by the Indian Universities Act, 1904. Under Section 3 of the Act, Universities were enabled to instruct students. Sections 20 and 21 author- ised the Universities to affiliate colleges. While Sec. 20 declared that colleges affiliated to any University prior to Page 35 of 57 C/LPA/453/2018 CAV JUDGMENT the 1904 Act "continue to exercise the rights conferred upon it by such affiliation", Section 21 provided for the grant of affiliation by the university upon an application by a college (obviously not earlier affiliated to the uni- versity) and matters incidental thereto. Section 19 of the said Act declared that "....no person shall be admitted as a candidate at any University examination ......unless he produces certificate from a College affiliated to the Uni- versity, ... that he has completed the course of instruc- tion prescribed by regulation".
41. Over a period of time, prior to the advent of the Con- stitution, number of Universities came into existence in various parts of the country. Each of them was created either by or under a statute. After the advent of the Con- stitution by virtue of the power under Article 246 read with Entry 32 of List II of the Seventh Schedule legislative competence to establish universities vested exclusively with the State Legislatures. Many universities came to be established by or under various enactments made by the different State Legislatures. There is a discernible pattern in the scheme of all these enactments. Each of these en- actments prohibits the conferment of any degree on any person by any body other than by the University. Uni- versities are authorised to (i) establish teaching colleges,
(ii) grant affiliation to colleges established by non-State actors. Correspondingly, colleges established by non- State actors are obliged to secure affiliation to the Uni- versities. Affiliated colleges are permitted to train stu- dents for examinations to be conducted by the University (to which college is affiliated) for the purpose of the con- Page 36 of 57 C/LPA/453/2018 CAV JUDGMENT ferment of degrees in a given discipline. Universities are vested with considerable power to regulate the adminis- tration of the affiliated colleges. In exercise of such power, Universities have been making subordinate legis- lation stipulating the terms and conditions subject to which colleges could be administered and seek affiliation, etc.
42. Under the Constitution of India, both the Parliament and the Legislative Assemblies of the States are con- ferred with the power to legislate upon various aspects of education. The power to legislate with respect to the field of education vested basically with the State Legislatures under Article 246 (3) read with Entry 11 of List II of the Seventh Schedule as it stood prior to the Constitution 42nd Amendment. Parliament is exclusively authorised under Article 246(1) to make laws with respect to various educational institutions specified under Entries 63 to 66[26] (both inclusive) of List I.
43. Original Entry 25 of the List III indicated the concur- rent field of legislative authority (of the Parliament as well as the State Legislature) with reference to certain aspects of the education came to be substituted.
44. By the 42nd amendment of the Constitution, Entry 11 of List II[28] was omitted and Entry 25 of List III was sub- stituted. Entire field of legislation with regard to educa- tion became the subject matter of Concurrent List. Entry 25 now reads:
"25. Education, including technical education, med- ical education and universities, subject to the provi-Page 37 of 57 C/LPA/453/2018 CAV JUDGMENT
sions of entries 63, 64, 65 and 66 of List I; vocation- al and technical training of labour."
45. The availability of such legislative authority to the States (both before and after the 42nd Amendment) ne- cessarily carried with it co- extensive executive authority which authorised the States to establish and administer colleges.
46. Parliament also made laws exercising its exclusive authority over the field indicated under Entries 63, 64 and 65 of List I of the Seventh Schedule to the Constitu- tion. By the said laws, educational institutions were es- tablished and their administration was entrusted to either the Government of India or some other authority.
47. Schedule VII List II Entry 32 indicates that State legis- latures have exclusive legislative competence to make laws dealing with "incorporation, regulation and winding up of...universities". In exercise of such legislative au- thority, laws are made by the State Legislatures bringing into existence Universities.
48. Various non-state actors including minorities estab- lished large number of colleges and other educational in- stitutions in this country, both before and after the ad- vent of the Constitution (spanning over a period of about 200 years). Certain aspects of establishment and admin- istration of colleges by non-state actors have always been regulated by the legislature. Various enactments (by or under which universities are established) com- mand that colleges should secure affiliation to an appro- priate university. However, after the 42nd Amendment, Page 38 of 57 C/LPA/453/2018 CAV JUDGMENT Parliament also became competent to regulate the activ- ity of education. Some of the laws made by the Parlia- ment do regulate. The All India Council for Technical Edu- cation Act (AICTE Act) is one such."
11.3 In the case of State of Orissa And Another v. Mamata Mohanty reported in (2011)3 SCC 436, the Hon'ble Supreme Court had an occasion to consider the importance of academic excellence of teachers themselves. In the said decision, it is observed by the Hon'ble Supreme Court that the excellence of instruction provided by the educational institutions mainly depends directly on the excellence of teaching staff and therefore, unless they themselves possess a good academic record / minimum qualifications prescribed as an eligibility, standard of education cannot be maintained/ enhanced. It is further observed in the said decision that education is necessary to develop the personality of a person as a whole and in totality as it provides the process of training and acquiring the knowledge, skills, developing mind and character by formal schooling. It is observed that therefore, it is necessary to maintain a high academic standard and academic discipline along with academic record for the progress of a nation. It is further observed that democracy depends for its own survival on the high standard of vocational and processional education. That Article 21A has been added to the Page 39 of 57 C/LPA/453/2018 CAV JUDGMENT Constitution with a view to facilitate the children to get proper and good quality education. It is observed that however, the quality of education would depend on various factors but the most relevant of them is excellence of teaching staff. In Paragraphs 29 to 33, the Hon'ble Supreme Court has observed and held as under:
"29. Education is the systematic instruction, schooling or training given to the young persons in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. Education connotes the process of training and developing the knowledge, skill, mind and character of students by formal schooling. The excellence of instruction provided by an educational institution mainly depends directly on the excellence of the teaching staff. Therefore, unless they themselves possess a good academic record/minimum qualifications prescribed as an eligibility, it is beyond imagination of anyone that standard of education can be maintained/enhanced.
"18. We have to be very strict in maintaining high academic standards and maintaining academic discipline and academic rigour if our country is to progress.
... ... ...
"30. ...Democracy depends for its very life on a high standard of general, vocational and professional education. Dissemination of 'learning with search for new knowledge with discipline all round must be maintained at all costs".
(Vide: The Sole Trustee Loka Shikshana Trust v. The Page 40 of 57 C/LPA/453/2018 CAV JUDGMENT Commissioner of Income Tax, Mysore, AIR 1976 SC 10; Frank Anthony Public School Employees' Association v. Union of India & Ors., AIR 1987 SC 311; Osmania University Teachers' Association v. State of Andhra Pradesh & Anr., AIR 1987 SC 2034; and Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh & Ors. v. Vaibhav Singh Chauhan, (2009) 1 SCC 59).
30. In Meera Massey (Dr) v. S.R. Mehrotra (Dr) & Ors., this Court extensively quoted the Report of the University Education Commission, i.e., Radhakrishnan Commission, wherein grave concern was expressed observing that "there is negligence in applying criteria of merit in the selection" of teachers. The Court also quoted from another Report of the Committee on some problems of University Administration 1964(1967) as:
"26. ....`The most important factor in the field of higher education is the type of person entrusted with teaching. Teaching cannot be improved without competent teachers. ... The most critical problem facing the universities is the dwindling supply of good teachers. ... The supply of the right type of teachers assumes, therefore, a vital role in the educational advancement of the country'.
31. The Court in Meera Massey further observed as Under:
"24. University imparts education which lays foundation of wisdom. Future hopes and aspiration of the country depends on this education, hence proper and disciplined functioning of the educational institutions should be the hallmark. If the laws and principles are eroded by such institutions it not only pollutes its functioning, deteriorating its standard but also exhibits to its own students the wrong channel adopted. If that be so, how could such institutions produce good citizens? It is the educational institutions which are the future hope of this country. They lay the seed Page 41 of 57 C/LPA/453/2018 CAV JUDGMENT for the foundation of morality, ethics and discipline. If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed."
(emphasis added)
32. In Chandigarh Administration & Ors. v. Rajni Vali & Ors., this Court observed as under:
"6. ....It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted statutes and framed rules and regulations to control/regulate establishment and running of private schools at different levels. The State Government provides grant-in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standards of teaching in any educational institution."
(emphasis added)
33. In view of the above, it is evident that education is necessary to develop the personality of a person as a whole and in totality as it provides the process of training and acquiring the knowledge, skills, developing mind and character by formal schooling. Therefore, it is necessary to maintain a high academic standard and academic discipline along with academic rigour for the progress of a nation. Democracy depends for its own survival on a high standard of vocational and professional education. Paucity of funds cannot be a ground for the State not to provide quality education to its future citizens. It is for this reason that in order to maintain the standard of education the State Government provides grant-in-aid to private schools to ensure the smooth running of the Page 42 of 57 C/LPA/453/2018 CAV JUDGMENT institution so that the standard of teaching may not suffer for want of funds."
11.4 In the case of Society for Unaided Private Schools of Rajasthan v. Union of India reported in (2012)6 SCC 1, the Hon'ble Supreme Court has observed that education is a process which engages many different actors: the one who provides education (the teacher, the owner of an educational institution, the parents), the one who receives education (the child, the pupil) and the one who is legally responsible for the one who receives education (the parents, the legal guardians, society and the State). It is observed that these actors influence the right to education.
12. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid decisions and the observations made by the Hon'ble Supreme Court in the aforesaid decisions, the issue involved in the present appeal and the grievances voiced by the petitioners with respect to inadequate faculties and not providing/ appointing qualified faculties is required to be considered.
12.1 It is the case on behalf of the appellant that for the course in question, there are no adequate faculties and there are no faculties having requisite qualification as per the norms Page 43 of 57 C/LPA/453/2018 CAV JUDGMENT prescribed by the UGC. At the outset, it is required to be noted that the respondent No.2-University has been recognized by the UGC as a "State University" under Section 22 of the UGC Ac,1956, to award the degrees. Therefore, as such, respondent No.2 - University and respondent No.3 - Institute, which is being run by respondent No.2-University, are bound to have faculties / qualified faculties and/or number of faculties as per the UGC Regulations. Therefore, the Regulations framed by the UGC in exercise of powers conferred by Section 26 of the UGC Act, 1956, shall be applicable to respondent No.2-Univeristy and respondent No.3-Institute. The University Grants Commission (Minimum Standards of Instruction for the grant of the Master's Degree through Formal Education) Regulations, 2003, shall apply to respondents Nos.2 and 3, which provides that no person shall be appointed to a teaching post if he/she does not fulfill the minimum qualifications prescribed for recruitment as per the Regulations in this regard notified from time to time under Section 26(1)(3) of the UGC Act, 1956. The University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010, which are framed in exercise of powers conferred under Page 44 of 57 C/LPA/453/2018 CAV JUDGMENT Clauses (e) and (g) of sub-section (1) of Section 26 of the UGC Act, provides for the minimum qualifications for appointment of teaching faculties in Universities and Colleges - engineering and technology discipline. Therefore, respondents Nos.2 and 3 are bound to follow the aforesaid Regulations and shall appoint and/or have the qualified faculties as per the minimum qualifications prescribed by the UGC.
12.2 Similarly, there shall be required number of faculties as per the norms prescribed by the UGC. It is an admitted position that as per the UGC norms, more particularly, as per the UGC Regulations, 2014, a University is required to maintain student to teacher ratio of 1:12 and accordingly there shall be 1 Professor, 1 Associate Professor and 2 Assistant Professors and that too, qualified as per the norms prescribed by the UGC, in the respondent No.3-Institute for the M.Tech. (Cyber Security and Incident Response) course. It is required to be noted that even according to respondents No.2 and 3, all efforts are made to recruit/ appoint the qualified faculty and the efforts are going on. According to respondent No.2 - University, only one post of Professor is vacant and at present, education in the course is being imparted by one Associate Professor and four Assistant Professors. However, according to the petitioners, two of these faculty members are Page 45 of 57 C/LPA/453/2018 CAV JUDGMENT not having the requisite minimum qualifications as required as per the norms prescribed by the UGC. It is required to be noted that even according to respondents No.2 and 3, the respondent-University has been making continuous efforts to recruit qualified teaching faculty at various levels including that of a Professor. All these efforts ought to have been made at the time when the course was started and only after having recruited qualified teaching faculty, these respondents ought to have started the course. To have infrastructure only is not enough. What is important is to have/recruit qualified teaching faculty. Unless and until education is being provided through eligible/qualified teaching faculty, the students may not get better education and even may not get the returns for which they have paid the fees. A great care and caution is required to be taken, more particularly, in cases where specialized courses are offered. For specialized courses and for excellence in education, the faculty possessing specific expertise and qualification is must and, in fact, that is the need of the day. One cannot be permitted to first start the course and thereafter to search for the eligible teaching faculty. To do so would be like first building the Hospital, then admitting the patients and thereafter searching for the Doctors. At this stage, it is required to be noted that even until December, Page 46 of 57 C/LPA/453/2018 CAV JUDGMENT 2016, respondents Nos.2 and 3 were availing the services of eSF Labs Limited under some MoU for the purpose of providing education to the students of M.Tech. course. The services of the experts can be availed in addition to, but not in alternative to the regular faculties. Providing education through experts and/or by calling experts is welcome, but as observed hereinabove, it should be in addition to the regular qualified faculty to give better education to the students. In absence of required number of faculties and that too, not appointing the qualified faculties as per the norms of the UGC, education shall hamper and shall be affected. There cannot be any compromise with the quality of education. Qualitative education shall always depend upon qualified faculties. 12.3 As such, in fact, it is the duty of respondent No.4-UGC also to see to it that the concerned University / Institute run by the respective University shall have the required number of faculties and qualified faculties as per the norms of the UGC. In the present case, though the grievance was made by the students to the UGC, no further steps were taken by it. 12.4 As observed hereinabove, Shri Kamal Trivedi, learned Senior Advocate appearing on behalf of respondents No.2 and 3 has stated at the Bar that respondents No.2 and 3 are open Page 47 of 57 C/LPA/453/2018 CAV JUDGMENT to all suggestions. Learned Senior Advocate has also stated that respondent No.2-University has been making all efforts continuously to recruit eligible teaching faculty at various levels, including that of a Professor. Under the circumstances, respondents No.2 and 3 are hereby directed to put their house in order and to take corrective measures and appoint required number of faculties and more particularly, the qualified faculties, as per the norms prescribed by the UGC, such steps to be taken at the earliest but not later than six weeks from today. Respondent-University Grants Commission is also directed to look into the matter and see to it that required number of faculties and that too, qualified and eligible faculties for the course in question are recruited and/or appointed by respondents Nos.2 and 3.
13. Now so far as the second grievance with respect to fee structure is concerned, at the outset, it is required to be noted that the learned Single Judge has refused to grant the relief in this regard mainly on the ground that once the petitioners have taken admission with open eyes, thereafter it will not be open for them to challenge the fee structure. However, it is required to be noted that the question is not with respect to challenge to fee structure only. The question is with respect to applicability of RAFF Act and determining the fee structure by Page 48 of 57 C/LPA/453/2018 CAV JUDGMENT the Fee Regulation Committee appointed under the RAFF Act. As per catena of decisions of the Hon'ble Supreme Court and this Court, there cannot be any estoppel against the statute and/or the statutory provisions.
13.1 As regards the second ground on which the learned Single Judge has refused to grant the relief to the petitioners with respect to fee structure, namely, that as respondent No.2
- University is established under the Gujarat Forensic Sciences University Act, 2008, therefore, in view of the relevant provisions of the Gujarat Forensic Sciences University Act, 2008, as well as in view of the Notification issued by the State Government dated 04.10.2017 exempting respondents Nos.2 and 3 from the applicability of Master of Business Administration (MBA) Course (Regulation of Admission and Fixation of Fees) Rules, 2013 as well as Diploma in Engineering Course to Bachelor of Engineering and Technology Courses Institutions (Regulation of Admission and Fixation of Fees) Rules, 2013, the course M.Tech. (Cyber Security and Incident Response) and two other courses run by respondent No.2 - University are exempted from the purview of the Fee Regulation Committee and the Admission Committee for Professional Courses, is concerned, at the outset, it is required to be noted that as per Section 19 of the Gujarat Professional Page 49 of 57 C/LPA/453/2018 CAV JUDGMENT Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, as amended from time to time, the provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other State law for the time being in force. Respondent No.2 - University is established under the State law, namely Gujarat Forensic Sciences University Act, 2008 and therefore, the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, as amended, shall have overriding effect and/or applicability against the provisions of the Gujarat Forensic Sciences University Act, 2008, insofar as there is anything inconsistent contained to the provisions of Gujarat Forensic Sciences University Act, 2008. Therefore, irrespective of any provision contained in the Gujarat Forensic Sciences University Act, 2008, the provisions of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, as amended from time to time, shall prevail and consequently, the Regulations framed thereunder, namely Diploma in Engineering Course to Bachelor of Engineering and Technology Courses Institutions (Regulation of Admission and Fixation of Fees) Rules, 2013, shall prevail and shall be applicable. As per Section 3 of the Page 50 of 57 C/LPA/453/2018 CAV JUDGMENT Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 ("the RAFF Act"), notwithstanding anything contained in any other law for the time being in force, all the admissions to the professional courses in the professional educational colleges or institutions shall be made in accordance with the provisions of the RAFF Act. However, so far as powers of the Fee Regulatory Committee constituted under the RAFF Act is concerned, as per Section 10, the Fee Regulatory Committee shall have the power over the unaided professional educational college or institution and the fee structure so determined by the Fee Regulatory Committee shall be binding to the unaided professional educational colleges or institutions for a period of three years. However, at the same time, as per Regulation 15 of the Master of Engineering and Technology and Master of Pharmacy Courses (Regulation of Admission and Payment of Fees) Rules, 2013, fees shall be determined by the Admission Committee and as per sub-rule (1) of Rule 15, a candidate who gets admission in the Government or aided college or institution shall have to pay such fees as may be determined by the government at such stages, as may be determined by the Admission Committee. The said Rules are framed in exercise of the powers conferred by sub-section (1) Page 51 of 57 C/LPA/453/2018 CAV JUDGMENT of Section 20 read with Section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, which has been subsequently further modified. Section 13A has been added in the main RAFF Act which confers power upon the State Government to exempt such college or institution which may be declared as Center of Excellence, from all or any of the provisions of the RAFF Act, however, after following the due procedure as may be laid down in the Gujarat Professional Technical Educational Colleges or Institutions (Procedure for Declaration of Centre of Excellence) Rules, 2014. Therefore, before issuing any Notification under Section 13A of the RAFF Act and declaring a particular college or institution as Center of Excellence and before granting the exemption, the procedure, as laid down in the Gujarat Professional Technical Educational Colleges or Institutions (Procedure for Declaration of Centre of Excellence) Rules, 2014 is required to be followed. Even the application for declaring an institution/ University as Center of Excellence is required to be made in the prescribed format and even the application is required to be notified on the net. Considering the Resolution/Notification dated 04.10.2017 by which the courses conducted by respondents No.2 and 3 are exempted from the purview of Diploma in Page 52 of 57 C/LPA/453/2018 CAV JUDGMENT Engineering Course to Bachelor of Engineering of Technology Institution (Regulation of Admission and Fixation of Fees) Rules, 2013, and thereby exempting such courses from the realm of Fee Regulation Committee, there does not appear that any procedure has been followed as required before exempting the course in question run by respondents No.2 and
3.
14. At this stage, it is required to be noted that even as per the State Government and so stated in the written submissions, even vide communication dated 20.02.2017, the Fee Regulatory Committee informed the Registrar of respondent No.2 - University to approach the Committee for determination of fee structure for M.Tech. and M.B.A. Courses. The Admission Committee for Professional Courses also addressed a letter to the Registrar of respondent No.2 - University to provide the Notification/ approval, if any, granted by the Government of Gujarat for carrying out admission process. Therefore, even as per the Admission Committee, the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, shall be applicable. It is required to be noted that only thereafter, the Resolution dated 04.10.2017 has been issued which has been published by Notification in the Government Page 53 of 57 C/LPA/453/2018 CAV JUDGMENT Gazette in the month of April 2018, exempting the course in question. Therefore, as such, the Resolution dated 04.10.2017 and the consequential Notification can be said to be de-hors the provisions of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, more particularly, Section 13A thereof. However, as neither the Resolution dated 04.10.2017 nor the Notification published in the Government Gazette on 23.04.2018 are under challenge, we are not making any further comments on the legality and validity of the same and we rest the matter there with an observation that as and when such Resolution/ Notification are challenged, the same be considered in accordance with law and on its own merits. However, it is observed that the State Government and respondents No.2 and 3 shall consider the observations made hereinabove and may consider the provisions of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, more particularly Section 13A thereof and the relevant Rules framed in exercise of powers conferred by Section 20 read with Section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, referred to hereinabove in the larger public Page 54 of 57 C/LPA/453/2018 CAV JUDGMENT interest and in the larger interest of the students. However, at the same time, we are not making any observation on merits in favour of either of the parties with respect to the fee structure determined by respondents No.2 and 3.
15. In view of the above and for the reasons stated above, the present appeal succeeds in part. The impugned judgment and order passed by the learned Single Judge dated 08.03.2018 in Special Civil Application No.89/2017 with Civil Application No.2/2017 is hereby quashed and set aside to the extent stated hereinabove. Respondents Nos.2 and 3 are hereby directed to put their house in order and to take corrective measures and to appoint for the course in question, the required number of faculties as per the norms fixed by the UGC and to appoint qualified faculties as per the norms of the UGC Act and the Regulations framed thereunder. Such exercise to be completed within a period of eight weeks from today. Respondent No.4 - UGC is hereby directed to look into the matter and see to it that respondents No.2 and 3 shall appoint required number of faculties and required number of eligible faculties as per the norms prescribed by the UGC. 15.1 Now so far as challenge to the fee structure is concerned, it will be open for the petitioners and/or any other aggrieved Page 55 of 57 C/LPA/453/2018 CAV JUDGMENT party to challenge the Resolution dated 04.10.2017 and the subsequent Notification published in the Government Gazette on 23.04.2018 whereby the courses in question conducted by respondents No.2 and 3 are exempted from the purview of Diploma in Engineering Course to Bachelor of Engineering and Technology Courses Institutions (Regulation of Admission and Fixation of Fees) Rules, 2013, and as and when such proceedings are initiated, the same shall be considered in accordance with law and on merits. The appeal is allowed to the aforesaid extent. No costs.
16. Before parting with the present order, we, again at the cost of repetition, observe that sufficient required number of qualified and/or eligible faculty is the need of the day and unless and until required number of faculties are appointed and that too, eligible and qualified faculties as per the norms prescribed, education will suffer and if the education suffers, the same shall not be in the larger public interest as well as in the interest of the nation. Having only infrastructure and buildings is not sufficient for any Institution. What is important is having qualified and required number of faculties through whom education will be imparted. Therefore, it is the duty of all concerned, including the UGC and the State, to see that there are sufficient number of qualified faculties appointed for Page 56 of 57 C/LPA/453/2018 CAV JUDGMENT better education in educational institutions such as respondents Nos.2 and 3. It is clarified that the above are the general observations and the same may not be treated as adverse observations against respondents No.2 and 3.
sd/-
(M.R. SHAH, J) sd/-
(A.Y. KOGJE, J) sunil Page 57 of 57