UNIVERSITY GRANTS COMMISSION v. AMITY UNIVERSITY UTTAR PRADESH
2007-11-26
MUKUL MUDGAL, REVA KHETRAPAL
body2007
DigiLaw.ai
JUDGMENT Mukul Mudgal, J.-This LPA by the appellant University Grants Commission (hereinafter referred to as the "UGC) challenges the judgment of the learned Single Judge dated 2nd July, 2007. The main plea involved in the present LPA relates to the question whether a university can be incorporated and established under the State Act, enacted by virtue of the powers conferred under List II Entry 32 of the VII Schedule of the Constitution of India or whether the recognition by the University Grants Commission (hereinafter referred to as the "UGC") is a sine qua non for the lawful establishment of the university. While the stand of the appellant UGC is that there can be no incorporation and establishment of even a university created by a State enactment without its inspection and approval, the respondents contended that while a State university is undoubtedly bound to follow the criteria and standards postulated by the UGC, but such conformity is not a precondition for the establishment of a university particularly in light of the law laid down by the Honble Supreme Court in Para 59 of Prof. Yashpals case II (2005) SLT 323=2005 (5) SCC 420. The plea of the respondents found favour with the learned Single Judge and hence this appeal. 2. The original dispute emanated from the name of the respondent No. 1, Amity University, Uttar Pradesh not being borne in the list of the universities, as defined under Section 2(f) of the University Grants Commission Act (hereinafter referred to as the "UGC Act"), being maintained by the UGC and the non-inclusion of the respondent No. 1s name in the said list. The learned Single Judge by his impugned judgment inter alia held as follows: (a) There is no dispute with regard to the power and jurisdiction of the UGC in laying down standards for higher education and also to ensure the maintenance of such standards. (b) There is no need for any debate on the issue as to whether the expression used in Section 2(f) of the UGC Act ought to be read as "established or incorporated" or as "established and incorporated". This dispute stands settled by the Honble Supreme Court in the case of Prof Yashpal & Anr. v. State of Chhattisgarh & Ors., (2005) 5 SCC 420, where it was held that the expression has to be read as "established and incorporated".
This dispute stands settled by the Honble Supreme Court in the case of Prof Yashpal & Anr. v. State of Chhattisgarh & Ors., (2005) 5 SCC 420, where it was held that the expression has to be read as "established and incorporated". (c) There is no difficulty with the fact that the State Act, i.e., Amity University Uttar Pradesh Act, 2005 by its provisions both incorporated and established the petitioner university. Consequently, there is no necessity to examine the question of interplay between the provisions of Entry 32 List II and Entry 66 List I of the VII Schedule of the Constitution of India. 3. On the above premises, the learned Single Judge went on to consider whether the writ petitioner the respondent herein was entitled to a direction that the writ petitioners name should be included in the non-statutory list maintained on the website of the UGC; Dealing with the above issue, the learned Single Judge recorded the following findings: (a) It is not disputed that UGC maintains a non-statutory list of universities, which, according to it, fall under the definition provided in Section 2(f) of the UGC Act. (b) UGC is empowered to undertake inspection of any university falling within Section 2(f) of the UGC Act and to require any such university to remove any shortcomings/ deficiencies during the inspection. (c) It is also open to the UGC to take consequential action as stipulated in Regulation 5 of the 2003 Regulations in respect of private universities incorporated and established by such enactments. (d) •There is no provision in the UGC Act or in the Regulations that has been referred to which requires the prior recognition/approval of the UGC before a university is regarded as one falling under Section 2(f) of the UGC Act. (e) The only requirement is that the university must have been "incorporated and established" by virtue of a Central Act, a Provincial Act or a State Act. This condition is clearly satisfied in the case of the respondent university by virtue of the enactment of the Amity University, Uttar Pradesh Act, 2005 (hereinafter referred to as "the Act 2005") and the writ petitioners compliance with the conditions stipulated under Sections 4 and 5 of the Act 2005.
This condition is clearly satisfied in the case of the respondent university by virtue of the enactment of the Amity University, Uttar Pradesh Act, 2005 (hereinafter referred to as "the Act 2005") and the writ petitioners compliance with the conditions stipulated under Sections 4 and 5 of the Act 2005. (f) The exclusion of the respondent No. 1s name from the non-statutory list of the UGC has serious consequences such as- (i) The students of the respondent No.1 University have been denied admission by foreign universities in higher courses on the ground that the respondent No. 1 University does not figure in the UGC list. (ii) The Institute of Chartered Accountants of India had denied registration to one of the students of the respondent No.1 University on the ground that he is ineligible because he is a student of an unrecognized university. (iii) The Indian Nursing Council has refused recognition to the respondent No. 1 University because of want of "UGC Notification". (iv) Organisations in USA dealing with equivalence of degrees have refused to entertain the status of the respondent No.1 University on account of the fact that it is not listed with the UGC and is not included in the list of universities maintained on the UGC website. (g) The UGC has not inspected the respondent No.1 university for over two years despite repeated requests and has been denying the respondent No.1 a place in its list on the ground of non-inspection. The UGCs discretion, in view of it being a public body, therefore, must be exercised reasonably and not arbitrarily its discretion. It is open to the UGC not to maintain a list of universities falling under Section 2(f) of the UGC Act, but having exercised the option of maintaining such a list, it is not open to the UGC to pick and choose, and arbitrarily and unreasonably deny inclusion of the respondent No. ls name in the said list under Section 2(f) of the UGC Act. In view of this the learned Single Judge issued a direction to the UGC to include the respondent No.1s name in the list of universities as per Section 2(f) of the UGC Act being maintained by it on its website.
In view of this the learned Single Judge issued a direction to the UGC to include the respondent No.1s name in the list of universities as per Section 2(f) of the UGC Act being maintained by it on its website. The inclusion of the respondent No. 1s name was subject to the periodic inspection by the UGC and to point out deficiencies and to require the respondent No. 1 to remove those shortcomings/deficiencies. 4. During the course of the arguments, Sh. Vikas Singh, the learned Additional Solicitor General, appearing on behalf of the appellant UGC, submitted that the list no longer exists on the website, but did not dispute before us that the said list is available with all interested parties. Accordingly, both sides have urged this Court to decide the question of law whether the scope and ambit of the powers of the UGC under the UGC Act include the right of prior approval before a university is deemed to be juridically incorporated or established. 5. The main plea of the learned Counsel for the appellant is that no establishment or incorporation of a university could be considered complete and juridically recognizable, unless and until inspection and approval is accorded by the UGC. It was further submitted that the standards set by UGC, which admittedly can be enforced by the UGC, have to be considered by the UGC in respect of a particular university before the establishment of the said university fully becomes operational. It is further submitted by the learned Counsel for the appellant that no university can start functioning unless and until the prior approval of the UGC is obtained. Mr. Singh buttressed this submission by saying that the "establishment and incorporation" postulated by the judgment of Prof Yashpal, 2005 (5) SCC 420 was not only the physical establishment or the structure of the curriculum and the building of the university, but in law, an establishment could not take effect unless and until a recognition and approval was granted by the UGC. The learned Counsel has relied upon the judgment of the Prof Yashpal (supra) and in particular on paragraphs 46 and 58 which read as follows: "46.
The learned Counsel has relied upon the judgment of the Prof Yashpal (supra) and in particular on paragraphs 46 and 58 which read as follows: "46. Entry 66 which deals with coordination and determination of standards in institutions for higher education or research and scientific and technical institutions is in the Union List and Parliament alone has the legislative competence to legislate on the said topic. The University Grants Commission Act has been made with reference to Entry 66 (SCC Prem Chand Jain v. R. K. Chhabra and Osmania University Teachers Assn. v. State of AP). The Act has been enacted to ensure that there is coordination and determination of standards in universities, which are institutions of higher learning, by a body created by the Central Government. It is the duty and responsibility of the University Grants Commission, which is established by Section 4 of the UGC Act, to determine and coordinate the standard of teaching curriculum and also level of examination in various universities in the country. In order to achieve the aforesaid objective, the role of UGC comes at the threshold. The course of study, its nature and volume, has to be ascertained and determined before the commencement of academic session. Proper standard of teaching cannot be achieved unless there are adequate in-frastructural facilities in the campus like classrooms, libraries, laboratories, well equipped teaching staff of requisite caliber and a proper student teacher ratio. The impugned Act which enables a proposal on paper only to be notified as a university and thereby conferring the power upon such university under Section 22 of the UGC Act to confer degrees has the effect of completely stultifying the functioning of the University Grants Commission insofar as these universities are concerned. Such incorporation of a university makes it impossible for UGC to perform its duties and responsibilities of ensuring coordination and determination of standards. In the absence of any campus and other infrastructural facilities, UGC cannot take any measures whatsoever to ensure a proper syllabus, level of teaching, standard of examination and evaluation of academic achievement of the students or even to ensure that the students have undergone the course of study for the prescribed period before the degree is awarded to them. 58. A university may, therefore, be established by the State in exercise of its sovereign power which would obviously be through a legislative enactment.
58. A university may, therefore, be established by the State in exercise of its sovereign power which would obviously be through a legislative enactment. In the case of a private university it is necessary that it should be a pre-established institution for higher education with all the infrastructural facilities and qualities which may justify its claim for being conferred with the status of a university and only such an institution can be conferred the legal status and a juristic personality of a university." (Emphasis supplied) 6. The learned Additional Solicitor General further submitted that the learned Single Judge erred in not considering the inter-play of Entry 66 List I and Entry 32 List II and, in fact, if there is any conflict between the provisions of the statute enacted by the State under Entry 32 List II and the UGC Act enacted by Parliament under Entry 66 List I, the Central Act enacted under Entry 66 List I must have primacy over the enactment by the State in Entry 32 List II. He further submitted that to the extent that there was overlapping or conflict, the State statute has to be read down. Mr. Singh also relied upon the judgment of the Honble Supreme Court in Gujarat University v. K.R. Mudholkar, 1963 (1) SCR 112 and in particular the following portion of the judgment: "6. Two substantial questions survive for determination-(I) Whether under the Gujarat University Act, 1949, it is open to the University to prescribe Gujarati or Hindi or both as an exclusive medium or media of instruction and examination in the affiliated colleges, and (2) whether legislation authorising the University to impose such media would infringe Entry 66 of List I, Seventh Schedule to the Constitution. 22. By the Constitution a vital change has been made in the pattern of distribution of legislative powers relating to education between the Union Parliament and the State Legislatures. By item No. 11 of List II of the Seventh Schedule to the Constitution, the State Legislature has power to legislate in respect of "education including Universities subject to the provisions of items 63, 64, 65 and 66 of List I and 25 of List III." Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the powers to legislate is vested exclusively in the Parliament.
Use of the expression "subject to" in item 11 of List II of the Seventh Schedule clearly indicates that legislation in respect of excluded matters cannot be undertaken by the State Legislatures. In Hingir-Rampur Coal Company v. State of Orissa, this Court in considering the import of the expression "subject to" used in an entry in List II, in relation to an entry in List I observed that to the extent of the restriction imposed by the use of the expression "subject to " in an entry in List II, the power is taken away from the State Legislature. 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 the 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 32 of List II. 23. The State has the power to prescribe the syllabi and courses of study in the institutions named in Entry 66 (but not falling within Entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the co-ordination of such standards either on an All India or other . basis impossible or even difficult. Thus, though the powers of the Union and of the State are in the Exclusive Lists, a degree of overlapping is inevitable. It is not possible to lay down any general test which would afford a solution for every question which might arise on this head. On the one hand, it is certainly within the province of the State Legislature to prescribe syllabi and courses of study and, of course, to indicate the medium or media of instruction.
It is not possible to lay down any general test which would afford a solution for every question which might arise on this head. On the one hand, it is certainly within the province of the State Legislature to prescribe syllabi and courses of study and, of course, to indicate the medium or media of instruction. On the other hand, it is also within the power of the Union of legislate in respect of media of instruction so as to ensure co-ordination and determination of standards, that is to ensure maintenance or improvement of standards. The fact that the Union has not legislated, or refrained from legislating to the full extent of its powers does not invest the State with the power to legislate in respect of a matter assigned by the Constitution to the Union. It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the "doctrine of pith and substance" of the impugned enactment. The validity of the State legislation on University education and as regards the education in technical and scientific institutions not falling within Entry 64 of List I would have to be judged having regard to whether it impinges on the field reserved for the Union under Entry 66. In other words, the validity of State legislation would depend upon whether it prejudicially affects co-ordination and determination of standards, but , not upon the existence of some definite Union legislation directed to achieve that purpose. If there be Union legislation in respect of coordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art. 254(1); even if that power be not exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid. 24. Counsel for the University submitted that the p0wer conferred by item No. 66 of List I is merely a power to coordinate and to determine standards, i.e., it is a power merely to evaluate and fix standards of education, because the expression "coordination" merely means evaluation, and "determination" means fixation.
24. Counsel for the University submitted that the p0wer conferred by item No. 66 of List I is merely a power to coordinate and to determine standards, i.e., it is a power merely to evaluate and fix standards of education, because the expression "coordination" merely means evaluation, and "determination" means fixation. Parliament has therefore power to legislate only for the purpose of evaluation and fixation of standards in institutions referred to in item 66. In the course of the argument, however, it was somewhat reluctantly admitted that steps to remove disparities which have actually resulted from the adoption of a regional medium and the falling of standards, may be undertaken and legislation for equalising standards in higher education may be enacted by the Union Parliament. We are unable to agree with this contention for several reasons. Item No. 66 is a legislative head and in interpreting it, unless it is expressly or of necessity found conditioned by the words used therein, a narrow or restricted interpretation will not be put upon the generality of the words. Power to legislate on a subject should normally be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in that subject. Again there is nothing either in items 66 or elsewhere in the Constitution which supports the submission that the expression "co-ordination" must mean in the context in which it is used merely evaluation, co-ordination in its normal connotation means harmonising or bringing into proper relation in which all the things coordinated participate in a common pattern of action. The power to co-ordinate, therefore, is not merely power to evaluate, it is a power to harmonize or secure relationship for concerted action. The power conferred by item 66 List I is not conditioned by the existence of a state of emergency or unequal standards calling for the exercise of the power. 25. There is nothing in the entry which indicates that the power to legislate on coordination of standards in institutions of higher education, does not include the power to legislate for preventing the occurrence of or for removal of disparities in standards. This power is not conditioned to be exercised merely upon the existence of a condition of disparity nor is it a power merely to evaluate standards but not to take steps to rectify or to prevent disparity.
This power is not conditioned to be exercised merely upon the existence of a condition of disparity nor is it a power merely to evaluate standards but not to take steps to rectify or to prevent disparity. By express pronouncement of the Constitution makers, it is a power to coordinate, and of necessity implied therein is the power to prevent what would make coordination impossible or difficult. The power is absolute and unconditional, and in the absence of any controlling reasons it must be given full effect according to its plain and expressed intention. It is true that "medium of instruction" is not an item in the legislative list. It falls within item 11 as a necessary incident of the power to legislate on education: it also falls within items 63 to 66. Insofar as it is a necessary incident of the powers under item 66 List I it must be deemed to be included in that item and therefore excluded from item 11 List II. How far State legislation relating to medium of instruction in institutions has impact upon coordination of higher education is a matter which is not susceptible, in the absence of any concrete challenge to a specific statute, of a categorical answer. Manifestly, in imparting instructions in certain subjects, medium may have subordinate importance and little bearing on standards of education while in certain others its importance will be vital. Normally, in imparting scientific or technical instructions or in training students for professional courses like law, engineering medicine and the like existence adequate text books at a given time, the existence of journals and other literature, availability of competent instructors and the capacity of students to understand instructions imparted through the medium in which it is imparted are matters which have an important bearing on the effectiveness of instruction and resultant standards achieved thereby. If adequate text books are not available or competent instructors in the medium, through which instruction is directed to be imparted are not available, or the students are not able to receive or imbibe instructions through the medium in which it is imparted, standards must of necessity fall, and legislation for coordination of standards in such matters would include legislation relating to medium of instruction.
If legislation relating to imposition of an exclusive medium of instruction in a regional language or in Hindi, having regard to the absence of text books and journals, competent teachers and incapacity of the students to understand the subjects, is likely to result in the lowering of standards, that legislation would, in our judgment, necessarily fall within item 66 of List I and would be deemed to be excluded to that extent from the amplitude of the power conferred by item No. 11 of List 11." 7. Mr. Arun Jaitly, Senior Advocate, appearing for the respondent No.1 Amity University, in reply, contended that both the Entry 66 List I and Entry 32 List II must be harmoniously construed and there is no real conflict between the UGC Act and the State Act, both the entries operate in different spheres. Such a harmonious construction would sustain the relief prayed for by the petitioner and granted by the learned Single Judge. 8. It is further submitted by the learned Counsel that the incorporation and establishment of a university postulate the following stages: (a) Creation of the university by the Statute, whether it be created by a Central Act or a State Act or a Provincial Act. (b) Establishment of the university from the threshold, that is, from the moment it is created by conforming to the UGC standards. (c) Inspection by the UGC from time-to-time to ensure that the standards of the UGC for determination and maintenance of standards of teaching, examinations and research in the university are complied with. For this purpose, the UGC may call for all the relevant information from the concerned university. (d) The right of the UGC if it gets a negative report to indicate any deficiency and non-conformity with the relevant UGC regulations and to give to the university concerned a reasonable opportunity to rectify the same. (e) The power vested in the UGC if satisfied that even after getting an opportunity to do so, the university concerned has failed to comply with the provisions of any of the regulations or its directions to pass an order prohibiting the university from offering any course of study by striking down a syllabus course or several courses til the deficiency is rectified.
(f) The power conferred on the UGC to take necessary action against the university awarding a degree or diploma, which are not specified by the UGC, to inform the public in general through a public notification and to impose a penalty on the university continuing such programme (s) and awarding unspecified degree(s) under Section 24 of the UGC Act. 9. Thus, Mr. Arun Jaitley, Senior Counsel for the respondents, submits that the only requirement for the UGC is to lay down the standards and seek their enforcement. The UGC should inspect and take consequential measures in case the remedial steps suggested by the UGC are not implemented. It was further submitted by Mr. Jaitly that in any case, if there is any lingering doubt in respect of the powers of the UGC and the fact of establishment and incorporation of the university, the law laid down in Yasl1pals case (supra), particularly in paragraphs 43, 44 and 46 of the judgment, clearly indicates that the only requirement is that there must be a State Act which must provide all the infrastructure required for the establishment and incorporation of a university. 10. It is further submitted by the learned Senior Counsel for the respondent No. 1 that every university seeking inclusion of its name in the list must from the threshold conform with the norms set up by the UGC and according to the learned Counsel for the respondent paragraph 46 in Yashpals judgment must be read in this light. He further urged that insofar as Entry 66 of List I and Entry 32 List II are concerned, there is no overlapping between the said two entries and the same have to be harmoniously construed and given effect to. 11. In our view, the entire scheme of the UGC Act and the UGC (Establishment of and Maintenance of Standards in Private Universities) Regulations, 2003 (hereinafter referred to as UGC Regulations) must be looked at to address the issue. First a look at the definition of university as set out in Section 2(f) of the UGC Act, which is extracted below: "2(f) "University" means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognised by the Commission in accordance with the regulations made in this behalf under this Act." 12.
Section 3 of the Act is also relevant, which reads as follows: "3. Application of Act to institutions for higher studies other than Universities.- The Central Government may, on the advice of the Commission, declare, by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of Clause (f) of Section 2." 13. Chapter III of the Act deals with the powers and functions of the Commission and is relevant to our, purposes. Section 12 in Chapter III of the Act reads as follows: "12. Functions of the Commission.
Chapter III of the Act deals with the powers and functions of the Commission and is relevant to our, purposes. Section 12 in Chapter III of the Act reads as follows: "12. Functions of the Commission. - It shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and coordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may- (a) inquire into the financial needs of Universities; (b) allocate and disburse, out of the Fund of the Commission, grants to Universities established or incorporated by or under a Central Act for the maintenance and development of such Universities or for any other general or specified purpose; (c) allocate and disburse, out of the Fund of the Commission, such grants to other Universities as it may deem necessary or appropriate for the development of such Universities or for maintenance, or development, or both, of any specified activities of such Universities or for any other general or specified purpose: Provided that in making any grant to any such University, the Commission shall give due consideration to the development of the University concerned, its financial needs, the standard attained by it and the national purposes which it may serve allocate and disburse out of the Fund of the Commission, such grants to institutions deemed to be Universities in pursuance of a declaration made by the Central Government under Section 3, as it may deem necessary, for one or more of the following purposes, namely- (i) for maintenance in special cases, (ii) for development, (iii) for any other general or specified purpose; establish, in accordance with the regulations made under this Act, institutions for providing common facilities, services and programmes for a group of Universities or for the Universities in general and maintain such institutions or provide for their maintenance by allocating an disbursing out of the Fund of the• Commission such grants as the Commission may deem necessary; (d) recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation; (e) advise the Central Government or any State Government on the allocation of any grants to Universities for any general or specified purposes out of the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be; (f) advise any authority, if such advise is asked for, on the establishment of a new University or on proposals connected with the expansion of the activities of any University; (g) advise the Central Government or any State Government or University on any question which may be referred to the Commission by the Central Government or the State Government or the University, as the case may be; (h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the same available to any University; (i) require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that University respecting each of such branches of learning; (j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions." 14.
Section 12A Sub-section (h) again defines a university as follows: "12-A(h) "university" means a university or institution referred to in Sub-section (1) of Section 22." 15. Section 22, Sub-clause (1) reads as under: "22(1) The right of conferring or granting degree shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees." 16. Section 23 stipulates that no university whether a corporate body or not, other than a university established or incorporated by or under a Central Act, a Provincial Act or a State Act shall be entitled to have the word "University" associated with its name in any manner whatsoever. Section 24 deals with penalty for contravention of the provisions of Sections 22 and 23, that is, for conferment of degrees by universities other than the universities specified in Sub-section (1) of Section 22 and use of the word "University" by universities other than those incorporated under a Central Act, a Provincial Act or a State Act and deemed universities. Section 26 deals with the power to make regulations including, inter alia, regulations for specifying the institutions or class of institutions, which may be recognised by the Commission under Clause (f) of Section 2. 17. Adverting to the UGC Regulations, 2003, the background as set out in the aforesaid regulations is pertinent and reads as follows: (i) Setting up of private universities through State Acts is a recent phenomenon. An effective regulatory mechanism is required for the maintenance of standards of teaching, research, examination and extension services in these private universities. (ii) An effective mechanism for regulating the functioning of existing State Universities recognized by the University Grants Commission under Sections 2(f) and 12B of the UGC Act, 1956 is already in place. In almost all the States, the Governor of the State is the ex officio Chancellor of the universities in that particular State.
(ii) An effective mechanism for regulating the functioning of existing State Universities recognized by the University Grants Commission under Sections 2(f) and 12B of the UGC Act, 1956 is already in place. In almost all the States, the Governor of the State is the ex officio Chancellor of the universities in that particular State. Besides, all the recognized State Universities under the purview of the UGC are receiving grants from the UGC and are obligated to follow the statutory regulations made under the UGC Act, which inter alia include regulations defining the minimum qualifications that should be possessed by any person to be appointed to the teaching staff of the universities; regulations defining the minimum standards of instruction for the grant of a degree by a university, etc. (iii) Under Section 3 of the UGC Act deemed to be university status is granted by the Central Government to those educational institutions of repute, which fulfil the prescribed standards and comply with various requirements laid down by the UGC. (iv) For private universities belonging to a separate category altogether, a suitable regulatory mechanism is essential by way of laying down the conditions specifically for the establishment and operation of such universities for safeguarding the interests of the student community with adequate emphasis on the quality of education and to avoid commercialization of higher education, etc. (v) Accordingly, in exercise of the powers conferred by Clauses (f) and (g) of Sub-section (1) of Section 26 of the UGC Act, 1956, the UGC hereby makes the following regulations, namely, ...... ......... ..... ......... ......... ......." 18. Regulation 3 deals with the establishment and recognition of private universities. Regulation 3.1 is relevant and reads as under: "3.1 Each private university shall be established by a separate State Act and shall conform to the relevant provisions of the UGC Act, 1956, as amended from time-to-time." 19. Regulation 3.4 to 3.9, Regulation 4 and Regulation 5 are significant and are extracted below: "3.4.
Regulation 3.1 is relevant and reads as under: "3.1 Each private university shall be established by a separate State Act and shall conform to the relevant provisions of the UGC Act, 1956, as amended from time-to-time." 19. Regulation 3.4 to 3.9, Regulation 4 and Regulation 5 are significant and are extracted below: "3.4. A private university shall fulfil the minimum criteria in terms of programmes, faculty, infrastructural facilities, financial viability, etc., as laid down from time-to-time by the UGC and other concerned statutory bodies such as the All India Council for Technical Education (AICTE), the Bar Council of India (BCI), the Distance Education Council (DEC), the Dental Council of India (DCI), the Indian Nursing Council (INC), the Medical Council of India (MCI), the National Council for Teacher Education (NCTE), the Pharmacy Council of India (PCI), etc. 3. 5. The courses of studies prescribed for a first degree and/or the post-graduate degree/diploma programmes should have been formally approved by the respective academic bodies of the private university, such as, Board of Studies, Academic Council and Governing/Executive Council. 3. 6. The programmes of study leading to a degree and/ or a postgraduate degree/ diploma offered by a private university shall conform to the relevant regulations/norms of the UGC or the concerned statutory body as amended from time to time. 3. 7. A private university shall provide all the relevant information relating to the first degree and post-graduate degree/diploma programme (s) including the curriculum structure, contents, teaching and learning process, examination and evaluation system and the eligibility criteria for admission of students, to the UGC on a proforma prescribed by the UGC prior to starting of these programmes. 3. 8. The UGC on detailed examination of the information made available as well as the representations and grievances received by it from the students as well as concerned public relating to the deficiencies of the proposed programme(s) not conforming to various UGC Regulations, shall inform the concerned university about any shortcomings in respect of conformity to relevant regulations, for rectification. The university shall offer the programme(s) only after necessary rectification. 3. 9. The admission procedure and fixation of fees shall be in accordance with the norms/ guidelines prescribed by the UGC and other concerned statutory bodies. 4. Inspection The UGC may cause periodic inspection of the private university and its off-campus centre(s), study centre(s), off-shore campus(es), etc. offering its programmes.
The university shall offer the programme(s) only after necessary rectification. 3. 9. The admission procedure and fixation of fees shall be in accordance with the norms/ guidelines prescribed by the UGC and other concerned statutory bodies. 4. Inspection The UGC may cause periodic inspection of the private university and its off-campus centre(s), study centre(s), off-shore campus(es), etc. offering its programmes. For this purpose, the UGC may call for all relevant information from the concerned private university, as provided in the UGC (Returns of Information by Universities) Rules, 1979 as amended from time-to-time. 5. Consequences of violations 5. 1. After inspection and assessment of a private university providing first degree and/or post graduate degree/diploma courses, the UGC may indicate to the university any deficiency and non-conformity with the relevant UGC Regulations and give it reasonable opportunity to rectify the same. If the Commission is satisfied that the private university has, even after getting an opportunity to do so, failed to comply with the provisions of any of the regulations, the Commission may pass an order prohibiting the private university from offering any course for the award of the first degree and/or the post-graduate degree/ diploma, as the case may be, till the deficiency is rectified. 5. 2. The UGC may take necessary action against a private university awarding a first degree and/or a post-graduate degree/ diploma, which are not specified by the UGC, and inform the public in general through a public notification. A private university continuing such programme(s) and awarding unspecified degree(s) shall be liable for penalty under Section 24 of the UGC Act." 20. Considering the Amity University, Uttar Pradesh Act, 2005 in juxtaposition with the UGC Act and Regulations, reference may be made to Section 8(2) and Section 25 of the Act, 2005, which read as follows: "8. Admission and standards.-(1).................................... (2) The University shall ensure that the academic standards of the courses offered by the University are in accordance with the guidelines of the University Grants Commission. 25. The Planning Board.-(1) The Planning Board shall be the principal planning body of the University. The Board shall ensure that the infrastructure and academic support system meets the norms of the University Grants Commission. (2) The constitution of the Planning Board, term of office of its members and its other powers and duties shall be such as may be prescribed. " 21.
The Board shall ensure that the infrastructure and academic support system meets the norms of the University Grants Commission. (2) The constitution of the Planning Board, term of office of its members and its other powers and duties shall be such as may be prescribed. " 21. From the above, it-1s amply clear that though incorporation is in the domain of the State Government, the moment the university is incorporated and established, it develops an existence of its own, which cannot be set at naught by the maintenance of any list of universities by the UGC, which is a non-statutory list for all intents and purposes. The incorporation and establishment of the university is thus in the exclusive domain of the State Legislature. Thereafter, undoubtedly the UGC has been vested with the power to ensure "the coordination and maintenance of standards" set down by it for higher education in universities. The UGC is required under the Act to prescribe standards in respect of infrastructure, eligibility for admission, curriculum, teachers academic qualifications and the like. Establishment and incorporation as explained in Yashpals case (supra) are statutory functions and the State Legislature has been vested with the power to establish and incorporate the universities. The fact that UGC standards and norms will apply to the university from the moment of its birth cannot, therefore, in our view, take away the right of the State to incorporate and establish universities in exercise of its duties under Entry 32 List II and the right of the university so established to exist as a university. This indisputably of course is subject to the coordination and maintenance of standards as prescribed and enforced by the UGC. 22. The above position of law is, in our view, further clarified by Entry 25 in List III, which reads as under: "25. Education, including technical education, medical education and universities subject to the provision of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." 23. A perusal of Entry 63 of List I reserves to the Parliament the power to legislate in respect of institutions known at the commencement of the Constitution as "the Banaras Hindu University", "the Aligarh Muslim University" and any other institution declared by Parliament by law to be an institution of national importance.
A perusal of Entry 63 of List I reserves to the Parliament the power to legislate in respect of institutions known at the commencement of the Constitution as "the Banaras Hindu University", "the Aligarh Muslim University" and any other institution declared by Parliament by law to be an institution of national importance. The name of Delhi University has been subsequently added by the 32nd Amendment, 1973 to this Entry and the name of a Central University in Andhra Pradesh has also been added by the 32nd Amendment in pursuance of Article 371(E). The next entry, Entry 64 deals with institutions for scientific and technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance. Entry 65 deals with Union agencies and institutions for (a) professional, vocational or technical training, including the training of police officers; or (b) the permission of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime. Entry 66, which is crucial, reads as follows: "Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions." Entry 32 in List II reads as follows: "Incorporation, regulation and winding up of corporation, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies." 24. A conjoint reading of entries 63, 64, 65 and 66 of List I, entry 32 of List II and entry 25 of List III makes it abundantly clear that universities except the classes of universities provided in Entries 63, 64 and 65 may be established and incorporated both by Parliament or by the State legislature. Entry 66 deals only with coordination and determination of standards as contra distinguished from incorporation and establishment. Entry 32 by use of the words "and universities" and Entry 25 by use of the words "education ... and universities" makes it abundantly clear that it shall be open to the State Legislatures to incorporate and establish universities and the same is not conditional upon recognition by the UGC. 25. Section 3 of the UGC Act also makes matters crystal clear.
and universities" makes it abundantly clear that it shall be open to the State Legislatures to incorporate and establish universities and the same is not conditional upon recognition by the UGC. 25. Section 3 of the UGC Act also makes matters crystal clear. It provides that the Central Government may on the advice of the Commission, declare, by notification in the Official Gazette, that any institution for higher education, other than a University shall be deemed to be a University for the purposes of this Act, and on such declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of Clause (f) of Section 2. This is a deeming provision and deals with non-statutory Universities. In respect of deemed Universities, which are non-statutory Universities, recognition must be bestowed by the UGC before it is considered a University within the meaning of Clause (f) of Section 2 of the UGC Act. For a university established by a State Act, no official recognition is required from the side of the Central Government. It is only in the case of the deemed university that the Central Government shall by notification in the official gazette declare an institution for higher education to be a University. There is, therefore, in our view, no question of non-inclusion of the name of the present university, which is indubitably a statutory university by virtue of the State Act, in the website of the UGC. 26. In our view, it is evident that the provisions of the UGC Act do not give any jurisdiction to the UGC to have a say in the initial establishment of the university. Entry 32 of the List II of VII Schedule of the Constitution, enables the State Government to incorporate, establish, regulate or wind up universities. UGC Act has been legislated under Entry 66 List I which only relates to the determination of standards of higher education and coordination between the universities. Thus, UGC undoubtedly has power to incorporate, determine and maintain standards and give directions in exercise of such power of maintaining standards. However, to accept the plea of the UGC that their recognition/ approval is a sine qua non to the establishment of a university would tantamount to granting powers to the UGC which neither the Act nor the concerned Entry in the Constitution postulate.
However, to accept the plea of the UGC that their recognition/ approval is a sine qua non to the establishment of a university would tantamount to granting powers to the UGC which neither the Act nor the concerned Entry in the Constitution postulate. In fact a bare perusal of the UGC Act (Sections 25 and 26) as also the rules and regulations framed under Section 26 for inspection of minimum standards of instructions and minimum qualifications of teachers clearly show that the UGC has to control the standards of an established university. A perusal of judgment of the Honble Supreme Court in the case of Prof. Yashpal & Anr. v. State of Chhattisgarh & Ors., II (2005) SLT 323=(2005) 5 SCC 420, makes it clear that it is the State Government which was empowered to legislate an incorporation of a university provided it met with all the infrastructure facilities. Since the respondents facilities have not yet been inspected, it is not open to the UGC while exercising its power of maintaining standards to even question the infrastructural facilities. In fact, it is not the case of the appellant that the required infrastructure is not present in the respondent university. Prof Yashpals judgment (supra) in any case, dealt with only those universities established at random without even the basic infrastructure in inadequate and ramshackle premises and must be read in that light. Insofar the case of as State of Gujarat University v. K.R. Mudholkar (supra), is concerned, it related to coordination of standards which included the medium of instruction. There can be no dispute that the Central Act which pertains to the determination and maintaining of standards would override any corresponding State law emanating from List II. However, we are unable to appreciate how the aforesaid judgment which related to the subject matter of Entry 66 in List I and Entry 11 of List II would advance the case set up by the UGC on the issue arising in the present appeal. By Section 57 of the Constitution (Forty-first Amendment) Act, 1976 in the VII Schedule of the Constitution in List II, Entry 11 was omitted and in List III Entry 25 was substituted.
By Section 57 of the Constitution (Forty-first Amendment) Act, 1976 in the VII Schedule of the Constitution in List II, Entry 11 was omitted and in List III Entry 25 was substituted. In Mudholkars case (supra), the Honble Supreme Court was dealing with the true effect of Item 66 in List I in its relation to Item 11 in List II insofar as the two items dealt with the power of the Parliament and the State Legislature to enact laws in respect of medium of instruction. Entry 11 of List II and Entry 25 of List III prior to the amendment read as follows: "Entry 11 of List II: Education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III. Entry 25 of list III: Vocational and technical training of labour." After the amendment with effect from 3.1.1977, as already stated, Entry 11 was omitted from List II and Entry 25 of List III was substituted by the following Entry: "25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." 27. This being the position brought about by the 42nd Amendment, a vital change has been made in the pattern of distribution of legislative powers relating to education and universities between the Union Parliament and the State Legislature by the inclusion of education including universities in the Concurrent List and the omission of Item 11 from the State List, that is, from List II. It is manifest that while Item 11 in List II prior to its omission had vested the State Legislature with the power to legislate in respect of education including universities subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III, a vital change has been made by the deletion of Entry 11 from List II and inclusion of the subject education including universities in List III while at the same time retaining Entry 32 relating to the incorporation, regulation and winding up of corporations (other than those specified in List I), and universities. 28.
28. Accordingly, we are of the view that the law laid down in the K.R. Mudholkars case (supra), does not in any event now have a bearing on the issues arising in the present appeal. 29. On a conjoint reading of Section 2(f) and Section 3 of the UGC Act together with the UGC Regulations, we find no reason to interfere with the judgment of the learned Single Judge whose felicitous analysis and reasoning we adopt and endorse in addition to the above reasoning contained in this judgment and the appeal accordingly deserves to be and is dismissed. 30. LPA 1106/2007 and CM 10039/2007 are accordingly dismissed. LPA & CM dismissed.