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2012 DIGILAW 2070 (RAJ)

Association of Self-Financing Universities of Rajasthan v. State of Rajasthan

2012-10-03

ARUN MISHRA, MEENA V.GOMBER

body2012
JUDGMENT ARUN MISHRA, C.J. : The petitioner is an association of 16 self financing universities of Rajasthan established to promote higher and professional education in the State of Rajasthan. The petitioner association has questioned vires of the Rajasthan Private Universities Laws (Amendment) Act, 2010 (Act 15 of 2010) (hereinafter referred to as the Act of 2010) being ultra vires and repugnant to the University Grants Commission Act, 1956 (hereinafter referred to as the UGC Act), inasmuch as it has changed the designations of members of the petitioner-association by the aforesaid amendment made in the Rajasthan Private Universities Law Act (Act 15 of 2010) substituting the words Chancellor, Vice-Chancellor and Pro-Vice-Chancellor to Chair Person, President and Pro-President respectively in the 13 Acts of the Private Universities mentioned in the Schedule appended to the Act of 2010. Thereafter, the Education Department of the Government of Rajasthan vide communication dated 15-7-2010 has directed the Member Universities of petitioner-association to modify the university record accordingly, and not to use the old designations of Chancellor, Vice-Chancellor and Pro-Vice-Chancellor in future. 2. It is submitted in the writ petition that when the self financing universities were established in the year 2007 after due deliberations by high level committee, the designations of Chancellor and Vice-Chancellor were specifically noted and maintained in the private universities as per the convention and these designations are well known and widely accepted under the UGC Act. It is further averred that the UGC Act deals with the coordination and determination of standards in the universities so that homogenous structure can be evolved throughout the Country in respect of universities and education provided therein. It is also averred in the writ petition that the coordination of practices has been given paramount importance in the UGC Act. The amendment made in the Act 15 of 2010 would lead to creation of divergent, inconsistent and disparate practices which will be against the spirit and purport of the UGC Act. Section 14 of the Private Universities (Establishment and Regulation) Act, 1995 provides the designation/nomenclature of Chancellor and Vice-Chancellor etc. The amendment made in the Act 15 of 2010 would lead to creation of divergent, inconsistent and disparate practices which will be against the spirit and purport of the UGC Act. Section 14 of the Private Universities (Establishment and Regulation) Act, 1995 provides the designation/nomenclature of Chancellor and Vice-Chancellor etc. Even the UGC Regulations on Curbing the Menace of Ragging in Higher Educational Institutions, 2009 (hereinafter referred to as the Anti-Ragging Regulations, 2009) also provides that the academic Head shall mean Vice-Chancellor in case of a university or a deemed to be university and the Principal or the Director or such other designation as the executive head of the institution or the college. The word President has not been specified by the UGC Act in the aforesaid Regulations. The action is discriminatory and violative of the Article 14 of the Constitution of India. The change of nomenclature is tilting the balance of educational institutions towards political, administrative and commercial lines as Chair Person, President and Pro-President are the names used in such bodies. 3. In the reply filed by State Government, it is contended that the petitioner association cannot maintain the writ application. Except with respect to two universities, namely, Jaipur National University and Singhania University, Pacheri Badi, Jhunjhunu, all other 11 private universities have submitted draft statutes for approval before the State Government in compliance of the Amendment made by the Act 15 of 2010 and amendments have also been published with respect to several universities. The petitioner association has not mentioned the aforesaid material aspect. It has also been submitted in the reply that the Act 15 of 2010 can be questioned only on two grounds, viz., lack of legislative competence or violation of any fundamental right guaranteed in Part III of the Constitution or any other Constitutional provision. There is a presumption with regard to constitutionality of an Act and the onus lies heavily upon the petitioner to prove violation of any of the rights. The State Government has legislative competence which has not been questioned. The enactment in any manner does not impinge on the field reserved to the Union of India under Entry 66 of List I of Schedule VII of the Constitution of India. The State Government has legislative competence which has not been questioned. The enactment in any manner does not impinge on the field reserved to the Union of India under Entry 66 of List I of Schedule VII of the Constitution of India. In various other universities, the nomenclature of President, Vice-President and Director is in vogue, namely, Nirma University of Science and Technology, Ahmedabad (Gujarat); Vanasthali Vidyapeeth, Niwai (Tonk); IASE Deemed University, Sardarshahar; Janardan Rai Nagar Vidyapeeth University, Udaipur; MNIT, Jaipur; LMN IIT, Jaipur; Harvard University (USA); Illinois Institute of Technology (USA); Zurich University (Switzerland); Queens University, Belfast (UK); City University, London; The University of Manchester (UK). There has to be a homogeneity of standards and structures, that cannot be applied to nomenclature. Method of appointment of Vice-Chancellor of the Government universities is totally different than of such private universities, in which appointment is made by the managing bodies. The petitioner is not able to make out how the change of nomenclature could put them in a disadvantageous position. The distinction between the private universities and State universities is not artificial and unfounded but substantial and relevant. The change in nomenclature is not going to cause difficulty in coordination and functioning of the UGC. 4. Mr. A. K. Sharma, Senior Counsel appearing with Mr. Ashish Sharma on behalf of petitioner-association has submitted that the UGC Act and the Anti-Ragging Regulations, 2009 use the word Chancellor, Vice-Chancellor and Pro-Vice-Chancellor of the universities. Initially these nomenclatures were inserted in the various Acts of the private universities, thereafter, there was move for change of these nomenclatures to Chair Person, President and Pro-President. The action is discriminatory and not permissible considering provisions of the UGC Act which has to prevail by virtue of Entry 66 List I contained in Schedule-VII of the Constitution of India. Normally the Vice-Chancellor is the academic head of the university and Chancellor is above him. There is no rhyme or reason to make the amendment. The amendment is discriminatory and arbitrary vis-a-vis to the private universities and would create difficulty in coordination to be made under the UGC Act and the regulations framed by it including the Anti-Ragging Regulations, 2009 which have the reference to the post of Chancellor, Vice-Chancellor or Pro-Vice-Chancellor. The decision has been taken merely on being objected by the Chancellor of the Universities. The decision has been taken merely on being objected by the Chancellor of the Universities. He has submitted that Vice-Chancellor can be nominated as member of commission under Section 5 of the UGC Act. Thus, the amendment made takes away the aforesaid right under Section 5 of the UGC Act. The amendment Act being violative of the Article 14 of the Constitution of India deserves to be struck down. 5. Mr. R. P. Singh, Senior Counsel & AAG appearing with Mr. Shashi Kant Saini on behalf of State has submitted that the provision of the Act or legislation can be questioned on the grounds of legislative incompetence and violative of fundamental rights, however, none of grounds is available, hence, challenge has been made without any basis. The State Government has considered it appropriate not to permit to use the same nomenclatures in private self financing universities as are being used in the State universities. There is difference in the process of selection, the private and State universities cannot be treated on similar footing. By the amendment as no right whatsoever has been violated or infringed, as such, the challenge cannot be said to be sustainable. Apart from that, 11 members of the Association out of 13 have submitted drafts Statutes for approval before the State Government in compliance of the Act 15 of 2010. Accordingly, the amendments have been substantially complied with. Thus, the challenge cannot be said to be legally justified. 6. The legislative competence of the State Government to enact the Act of 2010 has not been questioned. The submission has been raised only with respect to the change of name of the posts of Chancellor, Vice-Chancellor and Pro-Vice-Chancellor to Chair Person, President and Pro-President respectively. The relevant provision of Act of 15 of 2010, which has been questioned, is quoted below : 3. Amendment of Private Universities Laws.” In the Private Universities Laws, for the existing expressions Chancellor, Vice-Chancellor and Pro-Vice-Chancellor whenever occurring, the expressions Chairperson, President and Pro-President respectively shall be substituted. 7. The Apex Court in Public Services Tribunal Bar Association v. State of U. P. and another ( (2003) 4 SCC 104 ) : ( AIR 2003 SC 1115 ) wherein the Apex Court has laid down that the constitutional validity of an Act can be challenged only on two grounds viz. 7. The Apex Court in Public Services Tribunal Bar Association v. State of U. P. and another ( (2003) 4 SCC 104 ) : ( AIR 2003 SC 1115 ) wherein the Apex Court has laid down that the constitutional validity of an Act can be challenged only on two grounds viz. (i) lack of legislative competence; and (ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provisions. The Apex Court has laid down thus : 26. The constitutional validity of an Act can be challenged only on two grounds viz. (i) lack of legislative competence; and (ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provisions. In State of A. P. v. McDowell & Co. ( (1996) 3 SCC 709 ) this Court has opined that except the above two grounds there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds. 8. The first question for consideration is whether any fundamental rights have been violated by making amendment by Act of 2010 and whether there exist fundamental right in nomenclature of academic head of the private universities to be referred as Vice-Chancellor only and not as Chair Person and so on. 9. In our considered opinion, there cannot be any fundamental right in such a nomenclature. There are various nomenclatures being used in various universities throughout the world, of which, instances have been given in the return filed by State. The self financing universities cannot claim any fundamental right that the academic head of the institution should be referred by the legislature as Vice-Chancellor only and there should be a Chancellor above him; there is no such fundamental right available with respect to such nomenclatures. 10. When we examine the submission of Mr. A. K. Sharma, learned Senior Advocate appearing on behalf of petitioner-association that the UGC Act uses the word Vice-Chancellor of University. 10. When we examine the submission of Mr. A. K. Sharma, learned Senior Advocate appearing on behalf of petitioner-association that the UGC Act uses the word Vice-Chancellor of University. The provision of Section 5 of the UGC Act provides that members of Commission can be who are Vice-Chancellors of the universities or who, not being teachers of Universities are, in the opinion of the Central Government, educationists of repute or have obtained high academic distinctions. Thus, it was submitted by learned Senior Counsel that the right to become a member of the Commission is being deprived by changing the nomenclature. Section 5(3) (c)(iii) of the UGC Act has been relied upon by learned Senior Counsel, which is quoted below : 5(3)(c)(iii) who are Vice-Chancellors of Universities, or who, not being teachers of Universities are, in the opinion of the Central Government, educationists of repute or have obtained higher acadmic distinctions. 11. Under the aforesaid provision not only the Vice-Chancellor of the University other incumbents of educations of repute are also included and in case the UGC is not treating the President of the University equal to Vice Chancellor of the University for the purpose of Section 5 that is altogether different proposition. Whether reference to Vice-Chancellor would include President or not on such a ground we cannot entertain the plea that as UGC uses the word Vice-Chancellor, it was binding upon the State legislature to keep that nomenclature for the academic head of the self financing private universities. It is open to the legislature to give appropriate nomenclatures considering the exigencies of particular case. The UGC Act uses the word Vice Chancellor, however, on specific query, no such provision could be pointed out by the learned Senior counsel in the UGC Act laying down that academic head of the university has to be referred as Vice Chancellor only. Apart from that when UGC Act was enacted in 1956, such self financing private universities were not in existence, such exigency was not at all contemplated. It cannot be said that UGC Act lays down that academic head of the university has to be referred, even in private universities, as Vice Chancellor. The UGC Act does not deal with such propositions and aspects. It cannot be said that UGC Act lays down that academic head of the university has to be referred, even in private universities, as Vice Chancellor. The UGC Act does not deal with such propositions and aspects. The object of the UGC Act is to make provision of coordination and standards of the education and structure in the universities and for that purpose it has been established. The object is to bring harmonization of the standard and structures, it is not necessarily to employ similar nomenclatures for the various posts of the universities. That is not the aspect which has been dealt with expressly or by necessary implication in the UGC Act. 12. Learned Senior Counsel appearing on behalf of petitioner association also referred the UGC Regulations on Curbing the Menace of Ragging in Higher Educational Institutions, 2009 framed under Section 26(1)(g) of the UGC Act wherein the Head of the institution has been defined in regulation 4(1)(g)(i) to mean the Vice-Chancellor in case of a University or a deemed to be university, the Principal or the Director or such other designation as the executive head of the institution or the college is referred. Definition of Head of the institution is quoted below: g) Head of the institution means the Vice-Chancellor in case of a university or a deemed to be university, the Principal or the Director or such other designation as the executive head of the institution or the college is referred. 13. Again the Regulations of 2009 are not dealing with head of the institution has to be called by which nomenclature in self financing private universities. There can be other equivalent nomenclature in such universities. The use of the word Vice Chancellor will have the reference to the equivalent post of President in self financing universities as amended by Act No. 15 of the 2010. It cannot be culled out that the aforesaid regulations confer any right upon the self financing private universities to successfully contend that academic head of such universities should be referred as Vice Chancellor. This aspect has not been dealt with or laid down in the Regulations of 2009 in any manner whatsoever. 14. It cannot be culled out that the aforesaid regulations confer any right upon the self financing private universities to successfully contend that academic head of such universities should be referred as Vice Chancellor. This aspect has not been dealt with or laid down in the Regulations of 2009 in any manner whatsoever. 14. The Honble Supreme Court in P. U. Joshi v. Accountant General, Ahmedabad and others (2003) 2 SCC 632) : ( AIR 2003 SC 2156 ) has held that the question relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy and within the exclusive discretion and jurisdiction of the State. It has also been laid down that a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service. The Apex Court has laid down thus: 10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service. 15. In view of aforesaid decision, the submission that provisions of Act of 2010 are violative of Article 14 cannot be said to be sustainable. 16. Learned Senior Counsel appearing on behalf of petitioner has placed reliance upon the decision in Prof. Yashpal v. State of Chhattisgarh ((2005) 5 SCC 420) : ( AIR 2005 SC 2026 ) in which the Apex Court has laid down that the incorporation of universities as a legislative head is a State subject but basically a university is an institution or higher education and research. Entry 66 of List I of VIIth Schedule aims at coordination and determination of standards for institutions of higher education or research and scientific and technical institutions, the clash between the powers of the State and that of the Union has to be avoided. Power of the State to legislate in respect of education including universities must be to the extent to which it is not exercised by the Union Government. The Apex Court has held thus : 30. The same question was also examined in considerable detail in State of Tamil Nadu & Anr. Power of the State to legislate in respect of education including universities must be to the extent to which it is not exercised by the Union Government. The Apex Court has held thus : 30. The same question was also examined in considerable detail in State of Tamil Nadu & Anr. v. Adhiyaman Educational and Research Institute, 1995 (4) SCC 104 and the conclusions drawn were summarized in para 41 of the reports and sub-paras (i) and (ii) thereof are being reproduced below : 41. (i) The expression coordination used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make co-ordination either impossible or difficult. This power is absolute and unconditional and in the absence of the valid compelling reasons, it must be given its full effect according to its plain and express intention. (ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative. 33. The consistent and settled view of this Court, therefore, is that in spite of incorporation of Universities as a legislative head being in the State List, the whole gamut of the University which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State Legislature on account of a specific Entry on co-ordination and determination of standards in institutions for higher education or research and scientific and technical education being in the Union List for which the Parliament alone is competent. It is the responsibility of the Parliament to ensure that proper standards are maintained in institutions for higher education or research throughout the country and also uniformity in standards is maintained. 17. In the aforesaid decision, the Apex Court has also referred to the decision in State of Tamil Nadu & Anr. v. Adhiyaman Educational and Research Institute ( 1995 (4) SCC 104 ) : (1995 AIR SCW 2179) and held that the word coordination does not merely mean evaluation. It means harmonization with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development, not only for removal of disparities in standards but also for preventing the occurrence of such disparities. There is no dispute with what has been laid down by Apex Court, however, in our opinion, the nomenclatures of the post has nothing to do with the standards with respect to which there has to be co-ordination. In our considered opinion, different nomenclatures cannot come in the way of concerted efforts for ensuring standards to be achieved. No hurdle would be caused by the amendment made, in the functioning as envisaged and emphasized by the Honble Supreme Court on the strength of the decision in State of Tamil Nadu v. Adhiyaman Educational and Research Institute (supra). The Honble Supreme Court in Prof. Yashpal (supra) has also laid down that in spite of incorporation of Universities as a legislative head being in the State List, the whole gamut of the University which will include teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity being carried on will not come within the purview of the State legislature on account of a specific Entry on co-ordination and determination of standards in institutions for higher education or research and scientific and teachnical education. The ratio of decision cannot be extended to such private universities which are created by State legislation to claim parity of nomenclatures for the posts. The UGC Act does not deal with such proposition, as such, State legislation cannot be said to have encroached upon the power exercised by the Union of India in any manner whatsoever. 18. The ratio of decision cannot be extended to such private universities which are created by State legislation to claim parity of nomenclatures for the posts. The UGC Act does not deal with such proposition, as such, State legislation cannot be said to have encroached upon the power exercised by the Union of India in any manner whatsoever. 18. We are unable to accept the submission of learned Senior Counsel for the petitioner based on the aforesaid decisions as nomenclature does not impinge upon nor has correlation with teaching, quality of education being imparted, curriculum, standard of examination and evaluation and also research activity etc. aimed by the UGC Act. Proper standard does not mean identity of the nomenclatures of posts. 19. The private universities stand on different footing than the State universities. The selection procedure being different for Vice-Chancellor and Pro-Vice-Chancellor; they are different categories altogether. The Governor of State is the Chancellor of universities of government. Different nomenclatures can be prescribed by the State legislature for such posts so as to avoid confusion and since there is no fundamental rights in the nomenclatures much less to claim the particular nomenclature. We find that there is no question of infringement of fundamental rights when no such right exits. It is purely matter of policy. 20. We also deem it appropriate to place on record that the 13 universities have already applied for the change of nomenclatures; only 2 of universities of association have not applied. 21. The amendment cannot be said to be ultra vires of Constitution or violative of Article 14 or repugnant to the UGC Act; it is based on rational and intelligible classification, it cannot be said to be arbitrary or discriminatory in any manner. 22. For the aforesaid reasons, we find that the provision of the Rajasthan Private Universities Laws (Amendment) Act, 2010 (Act 15 of 2010) cannot be said to be ultra vires or arbitrary. The writ petition is bereft of merit, same is hereby dismissed. No costs. Petition dismissed.